Pradipta Kumar Nayak And Others vs State Of Odisha And Another .... ...
2023 Latest Caselaw 15596 Ori

Orissa High Court

Pradipta Kumar Nayak And Others vs State Of Odisha And Another .... ... on 5 December, 2023

Author: A.K. Mohapatra

Bench: A.K. Mohapatra

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                W.P.(C) No.39272 of 2023
                 Pradipta Kumar Nayak and others         ....           Petitioners
                                                       Mr.B.Routray, Sr. Advocate

                                           -versus-
                 State of Odisha and another             ....         Opp.Parties
                                                         Mr.N.K.Praharaj,A.G.A.
                                        CORAM:

                            JUSTICE A.K. MOHAPATRA

Order No.                                   ORDER
                                           05.12.2023
    01      1.      This matter is taken up through Hybrid Arrangement
            (Virtual/Physical Mode).
            2.      Heard Mr.B.Routray, learned senior Advocate for the
            Petitioners   and Mr.N.K.Praharaj, learned Additional Government
            Advocate for the State. Perused the Writ Petition as well as the
            documents annexed thereto.
            3.      The present Writ Petition has been filed with the following
            prayer :
                                " It is therefore, most humbly prayed that
                          this Hon'ble Court be graciously pleased to
                          i)    Admit the Writ Petition
                          ii)   Call for the record.
                          iii) Issue a writ in the nature of mandamus or
                          any other writ/writs direction/directions directing
                          the Opp.Parties, more particularly Opposite Party
                          No.1 to regularize/absorb the service of the
                          Petitioners as Assistant Executive Engineer in
                          regular establishment w.e.f. 19.08.2024 i.e. the date
                          the Petitioners were absorbed as contractual
                          assistant Engineers against regular vacant
                          sanctioned posts of Assistant Engineers under
                          Annexure-1 and further the Opposite Parties be
                           // 2 //




             directed to extend all financial and service benefits
             including promotion to the post of Executive
             Engineer as it due and admissible to the present
             Petitioners.
             iv) And further the Opposite Parties more
             particularly Opposite Parties be directed to grant
             pension and pensionary benefits under the
             OCS(Pension) Rules, 1992 and GPF(O) Rules,
             1938 by counting the date of initial appointment as
             NMR/DLR w.e.f. 1987.
             v)     And/or pass such other order/orders,
             direction/directions as this Hon'ble Court may
             deem fit and proper for the ends of justice."

3.    The factual background leading to the filing of the present
Writ Petition is that in the year 1987 the Government of Odisha took
a policy decision to engage unemployed Graduate /Engineers against
the substantive vacancy of Assistant Engineer on NMR/DLR basis
with a consolidated remuneration. Accordingly, the Petitioners were
engaged in the year 1989-90 on NMR/DLR basis with a consolidated
remuneration. On 19.08.2004 the Petitioners were engaged on
contractual basis against regular vacant and sanctioned post of
Assistant Engineer. While the Petitioners were working as such, on
17.12.2014

pursuant to the order under Annxure-2 to the Writ Petition, the Petitioners were brought over to the Work Charged establishment.

4. In the Writ Petition, it has also been stated that similarly circumstanced, Assistant Engineer (Work Charged) had earlier approached the Odisha Administrative Tribunal by filing O.A.No.1036(C) and 1089(C) of 2016 with a prayer to upgrade their post from Assistant Engineer to Assistant Executive Engineer. Learned Tribunal vide order dated 16.05.2018 allowed such prayer. Accordingly, the order of the Tribunal was implemented vide order // 3 //

dated 14.05.2019 and the Petitioners were posted as Assistant Executive Engineer with effect from 21.03.2013 i.e. the date of cadre restructurement. Within 21.04.2022 and 10.10.2022 the Petitioners were reinstated as Assistant Executive Engineer by allowing them all service benefits with effect from 17.10.2014 i.e. the date from which they were brought over to the Work Charged establishment.

5. Further, perusal of the Writ Petition reveals that the Petitioners in O.A.No.1063 of 2016 and O.A.No.1089(C) of 2016 were brought over to the regular establishment vide order dated 07.11.2022 under Annexure-9 to the Writ Petition. It appears that although the Petitioners stand on a similar footing, their cases were not considered to bring them over to regular establishment Therefore, it has been alleged that the Petitioners have been discriminated by the authorities by regularizing the services of the similarly situated persons in the Water Resources Department of the Government of Odisha. Not only the similarly situated persons were brought over to the regular establishment, it has been alleged that they were given promotion to the post of Assistant Executive Engineer pursuant to order dated 02.08.2023 under Annexure-11 to the Writ Petition.

6. Mr.Routray, learned senior counsel appearing for the Petitioners at the outset submitted that the services of the Petitioners should have been regularized from their initial date of service, however, the Opposite Parties in a most illegal and arbitrary manner have allowed the Petitioners to continue in the Work Charged establishment after rendering service for almost three decades under the Government of Odisha. In course of his argument, Mr.Routray, learned senior counsel for the Petitioners also contended that in case of similarly situated employees, who had earlier approached the Tribunal namely, Saroj Kumar Nayak and others, the Government of // 4 //

Odisha has taken a decision to regularize their services by bringing them to regular establishment with effect from 07.11.2022. So far the present Petitioners are concerned, although they stand on a similar footing they have been discriminated by the State Government and the authority under it. In such view of the matter, learned senior counsel submitted that the conduct of the Opposite Parties in not regularizing and not bringing over the Petitioners to regular establishment is hit by the principle laid down in Articles 14 and 16 of the Constitution of India. In course of his argument Mr.Routray, learned senior counsel refereed to the judgment in Swetapadma Samal -v.-State of Odisha and others in W.P.(C) No.26508 of 2017 decided by a Division Bench of this Court vide judgment dated 22.09.2023 impress upon this Court that in the said case the Division Bench had directed to regularize the services of the Petitioners from the date of initial entry into service to count the period of service for the purpose of calculation of pension and GPF under the respective Rules. Accordingly the Division Bench was pleased to direct to bring the services of the Petitioners under the fold of OCS(Pension) Rules 1992 and General Provident Fund (Odisha) Rules, 1938 by reckoning the dates of initial appointment on contractual basis i.e. on 07.07.2023. By referring to the said judgment and by drawing a similar fact to the present case, learned senior counsel submitted before this Court that in the referred judgment, the Petitioners were appointed on contractual basis and in the present case the Petitioners were appointed on contractual basis on 19.08.2004. Therefore, in both the cases, the appointment were on contractual basis was prior to the OCS (Pension) Rule, 1992 was amended in the year 2005. Accordingly, it was submitted that the Petitioners are to be covered under the OCS (Pension) Rules, 1992 as // 5 //

amended in the year 2005 and accordingly the Petitioners were brought over to the Old Pension Rule, 1992. He also contended that similarly the Petitioners are to be covered under the GPF Rules, 1936 as has been directed by the Division Bench in the above referred judgment. Further, reference was made to the order of this Court in Abdul Motalib-v.State of Odisha and another in W.P.(C) No.32200 of 2023 decided on 04.01.2023 wherein this Court by referring to several judgments of this Court as well as Hon'ble Supreme Court in the case of Prem Singh-v.-State of U.P. and others reported in (2019) 10 SCC 516 had come to a conclusion that although the Petitioners were appointed initially on 13.11.1981 as NMR, they were subsequently brought over to regular establishment after amendment of OCS(Pension) Rule, 1992. After detailed analysis of the amended OCS(Pension) Rules, 1992, this Court had categorically held that the Petitioners were initially appointed prior to the year 2005 when amended Rule came into force. Thus, it was held that subsequent regularisation of service would not amount to fresh appointment as has been mentioned in the amended Rule of the year 2005. Accordingly, this Court had directed to extend all pensionary benefits by taking into consideration the fact that the Petitioners in that case were appointed prior to 2005 amendment to the OCS(Pension) Rule, 1992.

7. Learned Additional Government Advocate on the other hand contended that the Petitioners have approached this Court directly in stead of approaching the competent authority for redressal of their grievance. He further contended that in the event this Court directs the Opposite Party No.1 to consider the case of the Petitioners in the light of the judgment referred to herein above and in accordance with law within a stipulated period of time, he will have no objection to // 6 //

the same.

8. Considering the submissions made by the respective parties, on a careful examination of the background facts of the present case as well as keeping in view the aforesaid settled position of law, this Court deems it proper to dispose of the Writ Petition by directing the Petitioners to approach by filing a detailed representation taking therein all the grounds including the copies of the documents they are relying in support of their stand within a period of three weeks from today. In the event such a representation is filed, the Opposite Party no.1 shall do well to consider the case of the Petitioners keeping in view the judgment of this Court referred to herein above as well as the decision of Saroja Kumar Nayak's case rendered by the Odisha Administrative Tribunal in O.A.No.1036(C) of 2016 and O.A.No.1089(C) of 2016 with regard to regularization of service of similarly situated contractual Engineers and pass necessary orders in accordance with law in the light of the aforesaid judgments within two months from the date of communication of certified copy of this order. It is further made clear that the Opposite Party No.1 shall also keep in view the analysis made by this Court herein above while considering the case of the Petitioners and dispose of the representation by passing a speaking and reasoned order within the aforesaid stipulated period of time. Final decision be communicated to the Petitioner within two weeks from the date of taking such decision.

9. With the aforesaid observation, the Writ Petition stands disposed of.

10. Issue urgent certified copy of this order as per Rules.

RKS ( A.K. Mohapatra ) Judge // 7 //

Designation: Junior Stenographer

Location: High Court of Orissa Date: 09-Dec-2023 15:18:15