Malaya Kumar Chhotary vs State Of Odisha & Ors
2023 Latest Caselaw 10031 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                       W.P.C.(OA) No.1910 of 2016

        Malaya Kumar Chhotary                  ....                 Petitioner
                                                            Mr. K.C. Sahu, Advocate

                                             -versus-

        State of Odisha & Ors.                 ....                 Opposite Parties
                                                            Mr. M.K. Balabantaray, AGA
                                                             Mr. S.K. Patra, Advocate
                                                                (Opp. Party No. 5)

                            CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY

                                       ORDER

25.08.2023 Order No

03. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard Mr. K.C. Sahu, learned counsel for the Petitioner, Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the State-Opp. Parties and Mr. S.K. Patra, learned counsel appearing for the Opp. Party No. 5.

3. Originally, the case was filed the Tribunal in Original Application No.1910 of 2016. On being transferred to this Court, the same has been registered as WPC(OA) No.1910 of 2016. The petition involves the following prayer:

"In view of the facts and submissions mentioned in para-(6) above the applicant prays for the following relief(s):

(i) The Hon'ble Tribunal be pleased to admit the Original Application,

(ii) The Hon'ble Tribunal be pleased to quash the impugned order under Annexure-7, 7/1 and 8 in respect of the applicant by // 2 //

declaring the same as illegal, arbitrary and discriminatory in nature.

(iii) The Hon'ble Tribunal be pleased to further declare that the applicant is to be governed under the old O.C.S. (Pension) Rules, 1992 and existing GPF(O) Rules but not under the new restructured defined pension scheme with directing for GPF deduction from his salary on regular basis as usual with all consequential service benefits for the interest of justice.

(iv) The Hon'ble Tribunal may be pleased to pass any order(s)/ direction(s) as deems fit and proper for the interest of justice."

4. Background involving the case is that the applicant being a diploma holder in Pharmacy was selected in a duly constituted selection committee and accordingly appointed as Pharmacist on contractual basis. While the petitioner was continuing as such, by office order dated 17.02.2009 of the Chief District Medical Officer, Koraput, the service of the petitioner was regularized and by the time of filing of the Original Application, the petitioner was continuing as a regular employee. While the petitioner was continuing as a contractual Pharmacist, State Government issued a notification dated 17.09.2005 introducing a new re-structured defined contribution pension scheme for the new entrants in the State Government service with effect from 01.01.2005. While matter stood above, there arose some doubt in the matter of implementation of such circular, clarification appears to have been issued to all Departments of the Government vide intimation dated 04.04.2007 indicating therein that the cases of employees would be governed in terms of OCS Pension Rule, 1992 and existing GPF(O) Rules. It is after such clarification is issued, the respondent-opposite party no.3 vide letter dated 20.09.2011 issued instruction to all Chief District Medical Officers of the State directing therein for deduction of G.P.F. deduction of the staff under their control and

// 3 //

those who were appointed on contractual basis prior to 01.01.2005 and brought over on regular basis after 01.01.2005. It is pursuant to such developments, petitioner was provided with G.P.F. number and the petitioner was continued to be a G.P.F. subscriber. It is while the matter stood thus, the opposite party no. 5 issued a letter dated 18.03.2015 thereby cancelling the G.P.F. Account number in respect of the employees, who are continuing on contractual basis prior to 01.01.2005. Petitioner being aggrieved by such direction of the opposite party no. 5, preferred the Original Application involved herein. On entertaining the Original Application, it appears by interim order the Tribunal stayed the operation of the instruction vide Annexures-7, 7/1 and 8 so far as the applicant is concerned.

5. Mr. Sahu, learned counsel appearing for the petitioner on reiteration of the factual background indicated hereinabove giving reference to the documents appended here to further taking support of the judgment of the Tribunal in Original Application No.98 of 2015 disposed of on 19.5.2017 confirmed by this Court in the case of State of Odisha & Others Vs. Sanjulata Sethy & Others in disposal of W.P.(C).No.22057 of 2019 and further being affirmed by Hon'ble Apex Court, attempted to justify the claim involved herein. Mr. Sahu, learned counsel further also submitted that in another development involving a judgment in similar situation being carried up to Hon'ble Apex Court, the Hon'ble Apex Court in disposal of a batch of SLPs including Special Leave Petition (C).No.23578 of 2012 and dismissal of the State's plea vide batch of review cases including Review Petition(C) No. 2038 of 2013. Mr. Sahu further taking support of this judgment also to

// 4 //

the case at hand, claimed above judgment also taken care of in the disposal of Original Application No.98 of 2015.

6. Mr. Balabantaray, learned Addl. Govt. Advocate appearing for the State taking this Court to the reason assigned in the counter affidavit in justification of the impugned order however did not dispute the position of law involving very same issue not only decided by the Tribunal in the above Original Application but also decided through the decision in Special Leave Petition (C).No.23578 of 2012 and Review Petition (C) No. 2038 of 2013.

7. Since the claim made here based on settled position of law, without entering into the factual aspect, this Court simply observes the Finance Department orders herein also impugned in the Original Application No.98 of 2015. The Tribunal after taking all the factual aspects involved herein and further taking into the developments through the above SLP(C) and the Review settling the position in disposal of Original Application No.98 of 2015, has come to hold the orders at Annexure-7 and 8 also being impugned herein were set aside. For there is no dispute with regard to the position of law on this aspect and as has already been settled through the above judgment, this Court sets aside the orders at Annexure-7, 7/1 and 8 respectively and allows the application directing to maintain the position of the petitioner so far it relates to continuance in the G.P.F. Scheme from the date of his regularization.

8. The writ petition succeeds.

Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication (Biraja Prasanna Satapathy) Location: High Court of orissa, Cuttack Date: 28-Aug-2023 11:36:38 Judge Sneha