Sirish Chandra Mishra vs State Of Orissa And Others
2022 Latest Caselaw 5140 Ori

                ORISSA HIGH COURT: CUTTACK


                    W.P.(C) NO. 7438 OF 2007,
                    W.P.(C) NO. 7583 OF 2007,
                    W.P.(C) NO. 9502 OF 2007,
                    W.P.(C) NO. 2795 OF 2007,
                    W.P.(C) NO. 6026 OF 2008
                               AND
                    W.P.(C) NO. 7831 OF 2008

      In the matter of applications under Articles 226 and 227
      of the Constitution of India.
                              ---------------

AFR W.P.(C) No. 7438 of 2007

Sirish Chandra Mishra ..... Petitioner

-Versus-

State of Orissa and Others ..... Opp. Parties

For Petitioner : Mr. S.P. Mishra, Sr. Advocate along with M/s. S. Mishra, S. Dash, S.S. Satapathy and B.S. Panigrahi, Advocates

For Opp. Parties : Mr. S. Rath, Addl. Standing Counsel [O.P. Nos. 1 to 3]

Mr. S.K. Das, Standing Counsel for Accountant General (A&F), Orissa [O.P. No.4] // 2 //

W.P.(C) No. 7583 of 2007

Naba Kishore Rajguru ..... Petitioner Mohapatra

-Versus-

State of Orissa and Others ..... Opp. Parties

For Petitioner : Mr. S.P. Mishra, Sr. Advocate along with M/s. S. Mishra, S. Dash, S.S. Satapathy and B.S. Panigrahi, Advocates

For Opp. Parties : Mr. S. Rath, Addl. Standing Counsel [O.P. Nos. 1 to 3]

Mr. S.K. Das, Standing Counsel for Accountant General (A&F), Orissa [O.P. No.4]

W.P.(C) No. 9502 of 2007

Prafulla Kumar Mishra ..... Petitioner

-Versus-

State of Orissa and Others ..... Opp. Parties

For Petitioner : Mr. S.P. Mishra, Sr. Advocate along with M/s. S. Mishra, S. Dash, S.S. Satapathy and B.S. Panigrahi, Advocates

For Opp. Parties : Mr. S. Rath, Addl. Standing Counsel [O.P. Nos. 1 to 3] // 3 //

Mr. S.K. Das, Standing Counsel for Accountant General (A&F), Orissa [O.P. No.4]

W.P.(C) No. 2795 of 2007

Snehalata Mishra ..... Petitioner

-Versus-

State of Orissa and Others ..... Opp. Parties

For Petitioner : Mr. S.K. Pattnaik, Sr. Advocate along with M/s U.C. Mohanty, D.Pattnaik, P.K. Pattnaik and S.

Pattnaik, Advocates

For Opp. Parties : Mr. S. Rath, Addl. Standing Counsel [O.P. Nos. 1 to 3]

Mr. S.K. Das, Standing Counsel for Accountant General (A&F), Orissa [O.P. No.4]

W.P.(C) No. 6026 of 2008

Manoranjan Nanda ..... Petitioner

-Versus-

State of Orissa and Others ..... Opp. Parties // 4 //

For Petitioner : Mr. S.P. Mishra, Sr. Advocate along with M/s S. Mishra, S. Nanda, S.S. Satapathy and A.K. Dash, Advocates

For Opp. Parties : Mr. S. Rath, Addl. Standing Counsel [O.P. Nos. 1 to 3]

Mr. S.K. Das, Standing Counsel for Accountant General (A&F), Orissa [O.P. No.4]

W.P.(C) No. 7831 of 2008

Ajoy Chandra Mohanty ..... Petitioner

-Versus-

State of Orissa and Others ..... Opp. Parties

For Petitioner : M/s B. Sahoo, S.S. Ray and B. Mohanty, Advocates

For Opp. Parties : Mr. S. Rath, Addl. Standing Counsel [O.P. Nos. 1 to 3]

Mr. S.K. Das, Standing Counsel for Accountant General (A&F), Orissa [O.P. No.4] P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE G. SATAPATHY // 5 //

Date of hearing: 21.09.2022: Date of judgment: 27.09.2022

DR. B.R. SARANGI, J. The petitioners, including Late B.N.

Mishra, who was the original petitioner in W.P.(C) No.

2795 of 2007 and stood substituted by his wife Smt.

Snehalata Mishra, are retired District Judges and

Members of the Superior Judicial Service (Senior Branch).

They have filed these writ petitions seeking direction to

the opposite parties to pay to each of them Death-cum-

Retirement Gratuity (DCRG) at the revised/enhanced rate

from Rs.2.5 lakhs to Rs.3.5 lakhs along with interest at

the rate of 7% per annum on the differential amount of

Gratuity of Rs.1.00 lakh from the respective date of their

retirement.

2. Since the facts of all these writ petitions are

similar and the issues involved therein are common, they

were heard together and are disposed of by this common

judgment.

// 6 //

3. For just and proper adjudication of all the writ

petitions, the factual matrix of W.P.(C) No. 7438 of 2007 is

referred to:-

3.1. The petitioner in W.P.(C) No. 7438 of 2007

joined in Orissa Judicial Service on 03.11.1971 and

posted as a Probationary Munsif at Cuttack. He, having

served in different capacities, was promoted as Addl.

District Judge on 01.12.1987. Thereafter, he was

appointed as District Judge on 19.06.1995. He retired, on

attaining the age of superannuation, at 60 years as a

Member of the Superior Judicial Service (Senior Branch),

while drawing salary on suppertime scale of pay, on

30.06.2004. As such, by the date of superannuation, he

had rendered 32 years 7 months and 27 days of qualifying

service, thereby falling short of 4 months and 3 days for

completing the full length of service of 33 years for the

purpose of pension, gratuity and other service benefits.

3.2. A Government servant of the State of Orissa is

entitled to full pension after rendering qualifying service of // 7 //

33 years. Since the total period of qualifying service of the

petitioner was falling short by 4 months and 3 days only

to be entitled to full pension after retirement, considering

the hardship to be caused to the petitioner, the

Government in Home Department, vide office order no.

42345 dated 20.09.2003 allowed addition of 4 months

and 3 days to the service of the petitioner for the purpose

of superannuation pension in accordance with the

provisions under Rule-32 of the Orissa Civil Service

(Pension) Rules, 1992 read with Rule-36 of Orissa Pension

Rules, 1977. Consequentially, the petitioner, who was

drawing Rs.24,350/-, as his last pay, calculating his

gratuity on the basis of formula provided under Rule-49 of

the Rules, the amount of gratuity payable to the petitioner

came to Rs.4,01,775/-. But the maximum gratuity

payable as per Rule-49 of the Rules being Rs.2.5 lakhs,

the Accountant General (A&E), Orissa, by its letter/memo

no.468/98-99, sanctioned the amount of gratuity at

Rs.2.5 lakhs, as applicable to the officers of the State of // 8 //

Orissa. After deducting an amount of Rs.20,395/-, an

amount of Rs.2,29,605/- was paid to the petitioner vide

Gratuity Payment Order No.125925/Govt.10/04 dated

15.10.2004.

3.3. In M.L. Jain v. Union of India, AIR 1985 SC

619 : (1985) 2 SCC 355, the apex Court in C.M.P. No.

18044 of 1988 directed that as per the decision of the

Central Government in respect of the pensioners under

the Central Government, the State Governments should

adopt the revision of pension, gratuity etc. in respect of

the servants of the State Government including the

members of Higher Judicial Service, so that the Service

Judges (High Court Judges coming from the cadre of

District Judges) can be granted such higher benefit.

3.4. In office order dated 27.10.1997, the Govt. of

India in Department of Pension and P.W. has already

implemented the recommendations of the 5th Central Pay

Commission and enhanced the maximum limit of DCRG

payable to the Central Govt. employees to Rs.3.5 lakhs // 9 //

w.e.f. 01.01.1996. The Parliament has also raised the

maximum ceiling of gratuity payable to the employees in

the industrial sector to Rs.3.5 lakhs by amending Section-

4(3) of the Payment of Gratuity Act, 1972 with effect from

24.09.1997.

3.5. In compliance of the direction given by the apex

Court in the case of M.L. Jain (supra), the Central

Government in the Ministry of Law and Justice

(Department of Justice), vide Circular No.L-11016/12/97-

JUS dated 18.02.1998, directed the Accountant Generals

of all the State Governments to revise the pension of the

members of Higher Judicial Service as per the decision of

the Central Government under the circular dated

27.10.1997 applicable with effect from 01.01.1996. In the

said circular, it was directed that if the State

Governments have not adopted the provisions contained

in the office memorandum dated 27.10.1997 or have not

yet issued any independent orders for revising the

pensionary benefits to the employees of that State // 10 //

including the members of the State service including State

Higher Judicial Service, then the pensionary benefits to

the Judges belonging to Part-III of that particular State

will not be revised. Similar instructions were also given to

the Accountant Generals of all States, vide Circular No.L-

11016/13/97-JUS dated 02.04.1998, to implement the

aforesaid judgment of the apex Court and adopt the

revised pension, gratuity and family pension as applicable

to the Central Government employees with effect from

01.01.1996 or from the date such benefits were made

applicable to the State Government employees including

the members of the Higher Judicial Service. In spite of the

direction of the Central Government in Department of

Justice, vide office memorandum dated 27.10.1997,

Government of Orissa had not revised its Pension Rules

nor it was paying the revised/enhanced gratuity in due

compliance thereof to the members of the Superior

Judicial Service (Senior Branch) and the Hon'ble Judges

of the High Court, who were appointed from the Orissa // 11 //

Superior Judicial Service (Senior Branch), whereas the

State Government was paying the pension and gratuity to

all its IAS, IPS and IFS officers serving in the State and

officers in the all India Service Cadre up to the maximum

ceiling of Rs.3.5 lakhs with effect from 01.01.1996.

3.6. Prasana Kumar Patra, who was also a member

of the Orissa Superior Judicial Service (Senior Branch)

and retired as a Judge of Orissa High Court, had

challenged such unreasonable and discriminatory action

of the State Government before this Court in W.P.(C) No.

12811 of 2003, which was disposed of vide order dated

13.01.2006, reported in (2006) 1 OLR 156. In the said

writ petition, State had taken the plea of lack of financial

resources to meet the additional burden of gratuity

payable to the retired District Judges and had asserted

that only in case the Government adopts the office

memorandum dated 27.10.1997, the District Judges of

Orissa Superior Judicial Service (Senior Branch) would be

entitled to higher pension and gratuity as per the said // 12 //

memorandum. Pursuant to the direction given by this

Court on 13.01.2006 in Prasana Kumar Patra's case,

mentioned supra, the Government of Orissa in Finance

Department passed a resolution on 06.09.2006 enhancing

the maximum limit of gratuity from Rs.2.5 lakhs to Rs.3.5

lakhs in respect of the Judges of the Orissa High Court,

who were elevated from Orissa Superior Judicial Service

Cadre. Since the petitioner was paid Rs.2.5 lakhs as

DCRG as per the old rate, he is also entitled to the

revised/enhanced rate of DCRG of Rs.3.5 lakhs as per the

decision of the apex Court as well as this Court. Since

there was inaction on the part of the authority, though he

filed representation before the authority but the same was

rejected on 02.05.2007, the petitioner approached this

Court by filing this writ petition.

4. Mr. S.P. Mishra, learned Senior Counsel

appearing along with Mr. S. Mishra, learned counsel for

the petitioner in WP(C) No. 7438 of 2007 contended that

rejection of the claim of the petitioner to grant enhanced // 13 //

gratuity amount from Rs.2.5 lakhs to Rs.3.5 lakhs is an

outcome of non-application of mind and contrary to the

provisions of law and, as such, rejection of representation

of the petitioner, vide letter dated 02.05.2007, cannot

sustain and is liable to be quashed. It is further

contended that the claim of the petitioner has been denied

on the plea that pensionary benefits to the IAS cadre

officers being regulated by Central Civil Service (Pension)

Rules, 1972, whereas the same in respect of the Orissa

Superior Judicial Service (Senior Branch) employees is

governed as per the Orissa Pension Rules and, thereby,

the petitioner is not entitled to DCRG at par with IAS

cadre officers, itself is erroneous and fallacious to the

reasons assigned while disposing of the representation

filed by the petitioner for extension of such benefits. It is

further contended that pursuant to the direction given by

the apex Court in M.L. Jain (supra) and also of this Court

in the case of Prasana Kumar Patra (supra), though

resolutions as well as circulars have already been issued // 14 //

implementing the said decisions, but the same have not

been made universal application. Therefore, non-

extension of such benefits to the petitioner and other

similarly situated persons amounts to gross violation of

Articles 14 and 16 of the Constitution of India. It is

further contended that vide circular dated 18.02.1998 in

Annexure-4, it has been observed that in the event the

State Government decides to adopt the direction

contained in the office memorandum dated 27.10.1997

regarding applicability of revised/enhanced rate of DCRG

to its officers, the officers of Orissa Superior Judicial

Service (Senior Branch) shall also be entitled to the

revised/enhanced rate of DCRG. Since the State

Government already allowed the revised/enhanced rate of

DCRG in respect of Prasana Kumar Patra, as per the

resolution dated 06.09.2006 vide Annexure-6, it is

deemed that the office memorandum dated 27.10.1997

under Annexure-3 is applicable to the petitioner. Thereby,

there is no valid and justifiable reason not to extend the // 15 //

benefits to the petitioner, who has retired from service as

a member of Orissa Superior Judicial Service (Senior

Branch). Thereby, the opposite parties have made

discrimination between the same class of employees,

which violates Articles 14 and 16 of the Constitution of

India. It is further contended that in view of the resolution

dated 27.10.1997, similar benefit has already been

extended by some of the States, namely, Goa, Assam and

Himachal Pradesh. Thereby, non-extension of such

benefit to the petitioner is contrary to the office

memorandum, as mentioned above.

To substantiate his contention, learned Senior

Counsel appearing for the petitioner has placed reliance

on the judgment of the apex Court in the case of M.L.

Jain v. Union of India, AIR 1985 SC 619 : (1985) 2 SCC

355 and of this Court in the case of Prasana Kumar

Patra v. State of Orissa, (2006) 1 OLR 156.

5. Per contra, Mr. S. Rath, learned Addl. Standing

Counsel appearing for the State-Opposite parties // 16 //

vehemently contended that the Central Government has

issued memorandum dated 27.10.1997 enhancing the

gratuity from Rs.2.5 lakhs to Rs.3.5 lakhs implementing

the recommendation of 5th Central Pay Commission and

also by amending Section 4(3) of the Payment of Gratuity

Act, 1972 w.e.f. 24.09.1997. The State Government has to

decide for adopting the same by issuing independent

orders of DCRG from Rs.2.5 lakhs to Rs.3.5 lakhs in

respect of its employees including the Orissa Superior

Judicial Service (Senior Branch), but till date no such

decision has been taken by the State Government. So far

as the Orissa Superior Judicial Service (Senior Branch) is

concerned, those who have been elevated as Judges of the

Orissa High Court, for them it has been enhanced from

Rs.2.5 lakhs to Rs.3.5 lakhs. Therefore, the enhancement

of DCRG from Rs.2.5 lakhs to Rs.3.5 lakhs cannot be

construed to be automatic one, unless the same is

adopted by the State Government in compliance of the

office memorandum dated 27.10.1997. It is further // 17 //

contended that as the pensionary benefit of the petitioners

is governed under OCS (Pension) Rules, for which Rs.2.5

lakhs has been sanctioned and paid as per the provisions

contained under Rule-49 of the Rules. Thereby, the claim

of the petitioners cannot sustain in the eye of law.

Consequentially, he seeks for dismissal of the writ

petitions.

6. Mr. S.K. Das, learned Standing Counsel

appearing for Accountant General (A&F), Orissa-opposite

party no.4 contended that power of opposite party no.4 in

the matter of settlement of DCRG of retired government

employee is very limited, as the claim of the petitioners

can only be considered by the Government. As such,

authorization of DCRG amount at the enhanced rate by

the opposite party no.4 depends on receipt of specific

instructions to that effect from Government. As the same

was not provided by the Government, the benefit claimed

by the petitioners could not be acceded to.

// 18 //

7. This Court heard Mr. S.P. Mishra, learned

Senior Counsel appearing along with Mr. S. Mishra,

learned counsel for the petitioners in the respective writ

petitions; as well as Mr. S.K. Pattnaik, learned Senior

Counsel appearing along with Mr. P.K. Patnaik, learned

counsel for the petitioner in WP(C) No. 2795 of 2007 and

Mr. B. Sahoo, learned counsel appearing for the petitioner

in WP(C) No. 7831 of 2008, who adopt the arguments

advanced by Mr. S.P. Mishra, learned Senior Counsel; Mr.

S. Rath, learned Addl. Standing Counsel appearing for the

State-Opposite parties in all the writ petitions; and Mr.

S.K. Das, learned Standing Counsel appearing for

Accountant General (A&F), Orissa by virtual mode and

perused the records. Pleadings having been exchanged

between the parties, with the consent of learned counsel

for the parties, these writ petitions are being disposed of

finally at the stage of admission.

8. The undisputed facts, as borne out from the

records, are that all the petitioners belonged to Orissa // 19 //

Superior Judicial Service (Senior Branch). After their

superannuation, they are claiming enhanced gratuity from

Rs.2.5 to Rs.3.5 lakhs, in view of the office memorandum

dated 27.10.1997 of the Government of India, Department

of Pension and Pensioners Welfare. The said

memorandum was issued by the Central Government for

implementation of Government's decision on the

recommendations of the 5th Central Pay Commission

Revision of provisions regarding pension/commutation of

pension. Clause-6 of the said memorandum reads as

under:-

          "RETIREMENT          GRATUITY/       DEATH
          GRATUITY

6. The maximum limit of retirement /Death Gratuity shall be Rs. 3.5 lakhs. Accordingly first provison under Rule50 (1) (b) pension Rules shall stand modified to the effect that the amount of retirement gratuity or death gratuity payable under this Rule shall in no case exceed Rs. 3.5 lakhs."

The aforementioned clause clearly indicates that

maximum limit of retirement/death gratuity shall be

Rs.3.5 lakhs and in no case it should exceed Rs.3.5 lakhs.

// 20 //

9. The Government of India, in Ministry of Law

and Justice (Department of Justice) issued a circular on

18.02.1998 for grant of revised pension admissible under

para-2 (a) of the Part-III of the first schedule/schedule to

the Act of 1954/1958, computation of DCRG of Part-III

and Part-I Judges with effect from 01.01.1996 onwards.

Relevant portion of such circular is extracted hereunder:-

"I am directed to say that in pursuance of the recommendations of the Fifth Central pay commission, the Central Government has modified provision regulating pensionary benefits of its employees as per Department of Pension & P.W.'s O.M.No. 45/86/97-P&W (A) Part -I dated the 27th October, 1997 (copy enclosed). Accordingly, in case the concerned state Government adopts the said O.M., in respect of its employees including the Members of State Higher Judicial Services, then the pension of High/Supreme Court Judges retiring under Part-III of the first schedule/schedule to the High/ Supreme Court Judges(C/S) Act, 1954/1958. Would be entitled to the computation of their pension under para 2(a), from the date the concerned State Government adopts the aforesaid D.M., in respect of its employees including the Members of State Higher Judicial Service."

From the above it is evident that the concerned State

Government has to adopt the office memorandum dated // 21 //

27.10.1997 in respect of its employees, including the

Members of the State Higher Judicial Service, and from

the date the concerned State Government adopts the

aforesaid office memorandum in respect of its employees,

including the Members of the State Higher Judicial

Service, they would be entitled to computation of their

pension in terms of the office memorandum dated

27.10.1997.

10. Paragraphs-3 and 4 of the aforesaid circular

dated 18.02.1998 further read thus:-

"3. If the concerned State Government has not adopted the provisions contained in the Department of Pension & P.W.'s O.M. No.45/86/97- P&W (A)-Part-1 dated the 27.10.1997 or have not yet issued any independent orders for revising the pensionary benefits to the employees of that State including the members of the State service including State Higher Judicial Service, then the pensionary benefits to the Judges belonging to Part-III belonging that particular State will not be revised.

4. The Death-cum-Retirement Gratuity in the case of Part-I Judges of High/Supreme Court , is calculated as per provisions of section 17- A(3)/16-A(2) of the High/Supreme Court Judges (C/S) Act, 1954/1958. i.e. as per the rules/orders/ notifications applicable to a // 22 //

member of the Central Civil (Group-A). Accordingly from 1.1.1996 onwards, the Death-cum-Retirement Gratuity/ Death Gratuity of Part -I Judges of the High/ Supreme Court, shall be calculated as per the instruction contained in Department of Pension & P.W.'s O.M. dated 27.10.1997."

From the above quoted paragraphs, it further transpires

that in case the concerned State Government does not

adopt the office memorandum dated 27.10.1997 or issue

any independent orders revising the pensionary benefits to

the employees of that State including the members of the

State Higher Judicial Service, then the pensionary benefits

to such employees will not be revised. So far as the DCRG

in case of Part-I Judges of High/Supreme Court is

concerned, the same has been allowed from 01.01.1996

and shall be calculated as per the instructions issued in

office memorandum dated 27.10.1997.

11. The Govt. of India, Ministry of Law and Justice

(Department of Justice) issued letter dated 02.04.1998 for

grant of revised pension under para-2(a) of part-II and

part-III of the first schedule/schedule to the High/

Supreme Court Judges (C/S) Act, 1954/1958 and revised // 23 //

family pension to the families of the Judges of

High/Supreme Court, paragraphs-2 and 3.2 whereof are

extracted hereunder:

"2. Revision of pension of Part II Judges i.e those who were elevated from earlier Indian Civil Services to High/Supreme Court.

The pension of such Judges comprises of two parts i.e. pension under Para 2 (a) and 2(b) of part-II of the first schedule/schedule to the Act of 1954/1958. The pension under Para 2(a) was as per the ordinary rules of the Indian Civil Service. As the pension of former Members of Indian Civil Services has now been revised as per the Department of pension & P.W.'s O.M. dated the 27.10.1997, the pension under para 2 (a) of such Judges of High/Supreme Court. Elevated from Indian Civil Service may accordingly he revised in terms of the Department of Pension & P.W.'s O.M. dated the 27.10.1997.

xxx xxx xxx

3.2 The Supreme Court of India had directed in C.M.P No.18044 of 1988, in the matter of Justice M.L Jain v. U.O.I, the state Government to adopt revised pension allowed to the Central Government Pensioners by the Department of Pension & P.W., w.e.f. 1.1.1986 in respect of the employees including Members of State Higher judicial Service, So that these revised pensions may also be granted to the part -III Judges under para 2(a). The said Judgment was circulated by this Department vide its circular letter No.27/20/88-Jus. , dated the 26.6.1989. Accordingly, the ordinary pension admissible to High Court/Supreme Court Judges. Under para 2(a) of part-III of the first // 24 //

schedule/schedule to the High/Supreme Court Judges (C/S) Act, 1954/1958, respectively, may be revised with effect from 1.1.1996, as in the case of the employees of the Central Govt. or from the date, respective state Government decide adopt these orders or an independent order issued by them, if any, to grant the benefit of increased pension on similar lines to their employees including Members of State Higher Judicial Service."

A cumulative reading of the provisions, as mentioned

above, would make it clear that in terms of the office

memorandums dated 27.10.1997, 18.02.1998 and

circular dated 02.04.1998 the members of State Higher

Judicial Service shall be entitled to the benefit of revised

pension and DCRG with a rider that the State Government

has to adopt the office memorandum dated 27.10.1997.

Admittedly, no such notification adopting such office

memorandum has been issued by the State Government.

But fact remains, Prasana Kumar Patra, who was in

Orissa Superior Judicial Service (Senior Branch), claimed

the benefit of higher enhanced gratuity. The same having

not been extended, he approached this Court by filing

W.P.(C) No. 12811 of 2003, which was disposed of // 25 //

directing the State Government to enhance the DCRG

amount from Rs.2.5 lakhs to Rs.3.5 lakhs and pay the

differential amount of Rs.1.00 lakh within a period of

three months. In compliance thereof, by resolution dated

06.09.2006, Govt. of Orissa in Finance Department

extended the benefits stating inter alia that the State

Government have been pleased to decide that the

maximum limit of the DCRG shall be raised from Rs.2.5

lakhs to Rs.3.5 lakhs in case of Judges of Orissa High

Court those who are elevated from Orissa Senior Judicial

Service Cadre. As a consequence thereof, the benefit was

extended to Prasana Kumar Patra, whereas the petitioners

have been discriminated.

12. In Bakshish Singh v. Darshan Engineering

Works, (1994) 1 SCC 251, the apex Court, while

considering two characters of gratuity, held that it was

initially considered as a reward for a long and meritorious

service but later on it was recognized as a retiral benefit in

consideration of the service rendered.

                                // 26 //




13.          In    Ahmadabad       Pvt.     P.T     Assocn.    V.

Administrative Officer, AIR 2004 SC 1426, the apex

Court held that the expression 'gratuity' itself suggests

that it is a gratuitous payment given to an employee on

discharge, superannuation or death. It is an amount paid

unconnected with any consideration and not resting upon

it, and has to be considered as something given freely,

voluntarily or without recompense. It is sort of financial

assistance to tide over post retiral hardships and

inconveniences.

14. In Delhi Transport Corporation Retired

Employees Association v. Delhi Transport

Corporation, AIR 2001 SC 1997 :(2001) 6 SCC 61, the

apex Court held that 'Gratuity' is essentially a retiring

benefit payable to a workman which as per the Statue has

been made payable on voluntary resignation as well.

Gratuity is reward for good, efficient and faithful service

rendered for a considerable period.

// 27 //

15. In Indian Hume Pipe Co. Ltd. v. Workmen,

AIR 1960 SC 251, the apex Court held that "Gratuity" is a

kind of retirement benefit like the provident fund or

pension gratuity paid to workmen is intended to help

them after retirement whether the retirement is the result

of the rules of superannuation or of physical disability.

16. The above being the meaning of gratuity in

essence and, as such, by virtue of the office memorandum

dated 27.10.1997, such benefit having been extended to

the Central Government employees as well as to the All

India Service Cadre even to the members of Orissa

Superior Judicial Service (Senior Branch) elevated to the

High Court, there is no valid and justifiable reason not to

extend such benefit to similarly situated Superior Judicial

Service (Senior Branch) Officers.

17. A plea has been taken by the State that since it

has not adopted the office memorandum dated

27.10.1997 by issuing notification, the benefit is not

admissible. But this contention is absolutely misconceived // 28 //

one, in view of the fact that in the case of Prasana Kumar

Patra, as mentioned supra, this Court considered the said

issue and observed as follows :-

"Now the question that arises for consideration is that how far the stand taken by the opposite parties 1 and 2 is justifiable or not. As admitted by the learned counsel for both parties, number of retired Part-III Service Judges in the State shall not be more than 7 to 8 and all that the State has to pay is Rs.7 lakhs to 8 lakhs to the Service Judges who retired after 1.1.1996. If the stand of the State Government that it does not have financial resources to spare Rs.7 lakhs to Rs.8 lakhs for the Service Retired Judges who retired after 1.1.1996 it will be one of the most unfortunate statement. There is no denial that the officers in the All India Services have been granted benefit under the Office Memorandum dated 27.10.1997 and there is no reason as to why the State Government should raise an objection and take a stand that the financial resources do not permit enhancement of death-Cum- retirement gratuity from Rs.2.5 lakhs to Rs.3.5 lakhs, which as a matter of fact, involves an additional expenditure of Rs. 7 lakhs to 8 lakhs for the present. It has been the experience that hardly one or two Services Judges retire in a year and additional burden on the State Government will be only to the extent of Rupees one lakhs to two lakhs in a year and therefore it is difficult to accept the contention raised in the counter affidavit that the financial resources of the State Government do not permit payment of additional Rs.1 to Rs.2 lakhs per // 29 //

year to the Service Judges who are likely to retire in future."

Assigning the above reason, this Court directed to

enhance the DCRG from Rs.2.5 lakhs to Rs.3.5 lakhs and

to pay the differential amount of Rs.1.00 lakh within a

period of three months and the same has been complied

with by issuing resolution dated 06.09.2006 in Annexure-

6. Therefore, if a Superior Judicial Service (Senior Branch)

Officer, while continuing as District Judge, made a

grievance for DCRG (even though in the meantime he was

elevated as a Judge to this Court) and accordingly the

benefit was extended to him, the petitioners, who stand on

similar footing, being the members of Superior Judicial

Service (Senior Branch) cadre, are entitled to get

enhancement of gratuity from Rs.2.5 lakhs to Rs.3.5 lakhs

and, as such, the differential amount of Rs.1.00 lakh is to

be paid to them.

18. It is of relevance to mention that the State being

a model employer cannot make any discrimination in the // 30 //

matter of grant of financial benefit to it employees like the

petitioners.

In State of Maharastra v. Pragati Vashi

and others, AIR 1996 SC 1, while considering Articles

21 and 39A of the Constitution of India, the apex

Court held that the scope of right of free legal aid and

speedy trial mandate under Articles 21 and 39A casts

duty on State to afford grant in aid to recognized

private law colleges, similar to other faculties, which

qualify for receipt of grant, it cannot be denied either

by pleading paucity of funds or otherwise.

19. Therefore, even if the State suffers with a

financial crunch that itself cannot deny the benefit to the

petitioners as they are otherwise eligible to get the same.

As such, this plea has been advanced in the case of

Prasana Kumar Patra (supra), which was turned down in

the said judgment and consequentially direction was given

for payment of differential amount. Therefore, once the

benefit has been extended to a similarly situated person, // 31 //

namely, Prasana Kumar Patra, the State cannot make a

distinction to the petitioners, which amounts to violation

of Articles 14 and 16 of the Constitution of India. More so,

a handful of persons like the present petitioners, whose

names can be counted in the fingertips, are only be

entitled to such benefits and, as such, it would not cause

much financial hardship to the Government in the event

the differential amount of Rs.1.00 lakh is paid to each of

the writ petitioners. As such, the same is onetime

payment and, thereby, the State, being a model employer,

should not deny the legitimate dues, as admissible to the

petitioners, in view of office memorandum dated

27.10.1997 under Annexure-3.

20. The petitioner in WP(C) No.7438 of 2007 has

specifically pleaded in paragraphs-11 and 16 to the

following effect:-

"11. That after hearing both parties and taking into consideration the fact the employees retiring as Secretary of Various Departments of the State Govt. in the cadre of Indian Administrative Service are being // 32 //

paid with revised/enhanced DCRG, this Hon'ble Court was pleased to allow the said writ petition basing on the decision of the Hon'ble Apex Court reported in (1985) 3 SCR 608 = AIR 1985 SC 619 and directed the authorities to enhance the DCRG from Rs.

2.5 lakhs to Rs.3.5 lakhs and pay differential amount of Rs. 1 Lakh to the writ petitioner there in within a period of three months from the date of communication of the said order vide order Dt13.01.06 The aforesaid decision of this Hon'ble Court has also been reported in 2006 (1) OLR 156.

xxx xxx xxx

16. That it is further respectfully submitted that the members of the Orissa Superior Judicial Service (Senior Branch) are, in no respect, less than the officers of the Indian Administrative Service holding the post of Secretaries of the various Govt. Departments. The members of Orissa Superior Judicial Service are also appointed as the Secretary of Law Department and there is no reason to discriminate between the Secretaries of different Department of Govt. of Orissa in the matter of pension and Gratuity etc. So denying similar benefits to the members of the Orissa Superior Judicial Service (Senior Branch) is not only unreasonable and unjustified but the same amounts to discriminatory treatment in blatent violation of Article 14 & 16 of the Constitution entailing interference in exercise of writ jurisdiction."

// 33 //

21. To the above pleadings of paragraphs-11 and

16 of the writ petition, in the counter affidavit, reply has

been given in paragraphs-9 and 12 to the following effect:-

"9. That in reply to the averments made in paragraphs -11 and 12 of the writ petition, it is humbly submitted that the same have already been explained in preceding paragraphs.

xxx xxx xxx

12. That in reply to paragraph-16 of the writ petition, it is humbly submitted that the pensionary benefits of the Officers of Indian Administrative Service, holding the post of Secretaries in different Department under the state Government, are being governed by the C.C.S (Pension Rules, 1972 whereas, the pensioner benefits of Orissa Superior Judicial Service is being governed by OCS (Pension Rule, 1992). Since the aforesaid pension Rule of State Government has not yet been amended, the existing provisions are still in force and accordingly, the pensioner benefits have been sanctioned in favour of the petitioner as per the existing provisions. Therefore, the fundamental rights of the petitioner as provided under Article 14 & 16 of the Constitution of India have not been violated."

In the aforementioned paragraphs, the only distinction

has been made by stating that the IAS officers are getting

pensionary benefits in terms of the CCS (Pension) Rules, // 34 //

1972 whereas the Superior Judicial Service (Senior

Branch) Officers are getting the pension under OCS

(Pension) Rules, 1992. But the entitlement of the

petitioners cannot be denied, in view of office

memorandum issued on 27.10.1997 read with the ratio

decided by this Court in the case of Prasana Kumar Patra

(supra). As such, there was no denial of such benefits to

the IAS officers. But fact remains, members of the

Superior Judicial Service (Senior Branch), when posted as

Secretary (Law) in the Secretariat, which is an equivalent

post at par with the IAS Officers, cannot be denied the

benefit which the IAS Officers of other departments are

getting. In view of the pleadings made in the above

mentioned paragraphs, it is made clear that the employee

retiring as Secretary of various departments of the State

Government in the cadre of Indian Administrative Service

are being paid with revised/enhanced DCRG in terms of

the office memorandum dated 27.10.1997, whereas the // 35 //

petitioner belonging to Orissa Superior Judicial Service

(Senior Branch) are discriminated.

22. In view of the factual and legal analysis, as

made above, opposite parties no.1 and 2 are directed to

enhance the Death-cum-Retirement Gratuity from Rs.2.5

lakhs to Rs.3.5 lakhs in respect of the petitioners and pay

the differential amount of Rs.1.00 lakh, along with interest

@ 6% per annum, to each of the petitioners within a

period of three months from the date of communication/

production of certified copy of this judgment.

23. In the result, the writ petitions are allowed.

However, there shall be no order as to costs.

..............................

                                                DR. B.R. SARANGI,
                                                     JUDGE

G. SATAPATHY, J.       I agree.

                                                ..............................
                                                  G. SATAPATHY,
                                                    JUDGE
          Orissa High Court, Cuttack

The 27th September, 2022, Ashok/GDS