Tapaswini Barik vs State Of Odisha & Others
2023 Latest Caselaw 10364 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 W.P.(C) No.27532 of 2023

                 Tapaswini Barik                        ....              Petitioner
                                                        Mr. L.K. Mohanty, Advocate

                                             -versus-

                 State of Odisha & others               ....       Opposite Parties
                                                                 Mr. S. Das, A.G.A.

                                         CORAM:

                             JUSTICE A.K. MOHAPATRA

                                           ORDER

Order No.                                 30.08.2023
    01.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. Heard learned counsel appearing for the petitioner as well as learned Addl. Government Advocate for the State-Opposite Parties. Perused the writ petition as well as the documents annexed thereto.

3. The present writ application has been filed by the Petitioner with the following prayer:-

"It is, therefore, prayed that this Hon'ble Court may graciously be pleased to issue notice to the opp. Parties calling upon them to file show cause as to why:-

i) A direction shall not be issued to grant pension in favour of the petitioner by counting the period of service of her husband late Hariballav Barik from 1.4.2004 to 31.8.2019 as qualifying period of service by taking into consideration the order passed by Learned OAT Cuttack in OA no. 1106(C)/2015 dt.

3.4.2019 under Annexure-5 and consequential order passed by O.P. no.1 dated 19.7.2023 under Annexure-11 as well as the judgment Hon'ble Apex court of India in between D.S. Nakra vrs Union of // 2 //

India reported in 83 SC 130;

ii) And after hearing the parties be pleased to direct the opp.parties to release pension and pensionary benefits of Late Hariballav Barik in favour of the petitioner w.e.f. 1.9.2019 by counting the period of service forum 1.4.2004 to 31.8.2019 as qualifying service taking into consideration the order of Learned Tribunal as well as the Hon'ble Apex court of India and the judgment passed by the Hon'ble Apex court in between D.S. Nakra vrs Union of India reported in 83 SC 130. The Opp. Parties be further directed to release family pension in favour of the petitioner w.e.f. 1.9.2020 along with arrears; Any pass any other order/orders, direction/ directions as deemed fit and proper;"

4. It is stated by learned counsel for the Petitioner claiming the pensionary benefits as is due and admissible to her late husband Hariballav Barik with effect from 1.9.2019 and thereafter family pension to the petitioner with effect from 01.09.2020, the Petitioner has approached this Court for a direction to the Opposite Parties to sanction and disburse the pensionary benefits within a stipulated period of time. It is submitted by learned counsel for the Petitioner that initially the husband of the Petitioner who was appointed under a centrally sponsored scheme in the year 1997 by following a new recruitment process. Thereafter, pursuant to a decision of Government of Odisha under Annexures-3 & 4 the Petitioner along with many other similarly situated persons were taken into a regular Government establishment as MPHW (M) and were absorbed in the Keonjhar district on a consolidated monthly remuneration of Rs.4,000/- P.M. Learned counsel for the Petitioner also contended that some of the similarly situated employees approached the Tribunal in the year 2015 by filing the O.A. No.1106(C) of 2015. The Tribunal vide order dated 03.04.2019 allowed the O.A. in part. The prayers of the applicants to regularize their services with effect from 31.03.2004-01.04.2004 and count their // 3 //

services with effect from 01.04.2004 for the purpose of RACP were rejected. However, the applicants before the Tribunal were granted a relief for pensionary benefits under the OCS (Pension) Rule, 1992 and GPF Rule, 1938. The aforesaid order of the Tribunal was challenged before a Division Bench of this Court by the State-Opposite Parties by filing W.P.(C) No.29224 of 2020. The Division Bench of this Court vide order dated 05.10.2021 while dismissing the writ petition by a speaking order has upheld the decision of the Tribunal. The order of the Division Bench was assailed before the Hon'ble Supreme Court by filing a Special Leave to Appeal (C) No.12835 of 2022. The Hon'ble Supreme Court vide order dated 01.08.2022 has dismissed the SLP. Thus, the order passed by the Tribunal as confirmed by this Court has attained finality.

5. Learned counsel for the Petitioner, at this juncture contended that pursuant to the order passed by the Tribunal as confirmed by this Court and the Hon'ble Supreme Court the Opposite Parties have already implemented the order. In the said context, learned counsel for the Petitioner referred to the order dated 19.07.2023 issued by the Health and Family Welfare Department under Annexure-11 to the writ application. Learned counsel for the Petitioner further contended before this Court that the Petitioner has already approached the Opposite Party No.1 by filing the representation dated 21.06.2023 under Annexure-10 to the writ application. However, decision has been taken on the same as of now. Being aggrieved by such inaction of the authorities the Petitioner approached this Court by filing the present writ application. The husband of Petitioner expired on 31.08.2019.

6. Learned Additional Government Advocate on the other hand contended that since the Petitioner has already approached the Opposite Party No.1 by filing the representation under Annexure-10 to the writ // 4 //

application, he will have no objection in the event this Court directs to the Opposite Party No.1 to consider the representation of the Petitioner keeping in view the order passed by the Tribunal as well as this Court and which has been affirmed by the Hon'ble Supreme Court in the case of similarly situated employees within a stipulated period of time in accordance with law.

7. Considering the submission made by learned counsels appearing for the respective parties and further on a careful examination of the background facts as well as the documents annexed to the writ application, this Court deems it proper to dispose of the writ application at the stage of admission by directing the Health and Family Welfare Department, Bhubaneswar-Opposite Party No.1 to consider the representation of the Petitioner dated 21.06.2023 under Annexure-10 to the writ application within a period of eight weeks from the date of communication of the certified copy of this order by the Petitioner. The Opposite Party No.1 further directed to consider the representation of the Petitioner under Annexure-10 keeping in view the decision of the Tribunal as well as this Court and take a final decision in the matter within the aforesaid stipulated period of time. The decision so taken by the Opposite Party No.1 be communicated to the Petitioner within two weeks thereafter.

8. With the aforesaid observations/ directions, the writ application stands disposed of.

Issue urgent certified copy of this order as per Rules.

( A.K. Mohapatra ) Judge Anil

Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 31-Aug-2023 18:55:56