Abadhuta Mohanty vs State Of Odisha & Others
2023 Latest Caselaw 4997 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                W.P.(C) No.13627 of 2023
                 Abadhuta Mohanty                       ....           Petitioner
                                                       Mr.P.K.Mishra, Advocate

                                            -versus-

                 State of Odisha & others               ....     Opposite Parties
                                                       Mr.Iswar Mohanty, A.S.C.


                                         CORAM:

                            JUSTICE A.K. MOHAPATRA


Order No.                                    ORDER
                                            03.05.2023

    01.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).
            2.      Heard learned counsel for the Petitioner as well as learned
            Additional Standing Counsel for the State-Opposite parties. Perused the
            Writ Petition as well as the documents annexed thereto.
            4.      The present Writ Petition has been filed with the following
            prayer:
                          "It is prayed, therefore that this Hon'ble Court may
                    graciously be pleased to;
                    i)    Admit and allow the writ petition and;
                    ii)   Direct the Opp.Parties to grant the Petitioner pension
                          and other retirement dues under old OCS (Pension)
                          Rules, 1992 by counting past service rendered in
                          N.M.R. as well as Work Charged establishment
                          forthwith as has been granted to other similar footing
                          employees within a stipulated period of time and;
                    iii) And pass such other orders/directions as this Hon'ble
                          Court may deem fit and proper in the facts and
                          circumstances of the case and bona fide interest of
                          justice."
                              // 2 //




5.       It is submitted by the learned counsel for the Petitioner that the
Petitioner was initially engaged on N.M.R. basis on 01.11.1982 i.e.
much prior to the cut-off date as Helper and continued uninterruptedly.
It is further contended by the learned counsel for the Petitioner that the
Petitioner is covered by the Finance Department          Resolution dated
15.05.1997

which was issued for absorption of N.M.R./D.L.R./Job Contract Employees, those who are continuing in regular establishment. Learned counsel for the Petitioner further contended that by the time the Finance Department Resolution dated 15.05.1997 came into force, the Petitioner has rendered 14 years of continuous service on N.M.R. basis and eligible for absorption in the regular establishment. However, the authorities did not regularize the service of the Petitioner and vide order dated 23.04.2010 the Petitioner was brought over to the Work Charged establishment as Helper (Group-D). Finally, on 29.03.2017 the service of the Petitioner was regularized under regular establishment. While the Petitioner was working as such, on attaining the age of superannuation, after rendering more than 38 years of service, with effect from 31.12.2020 the Petitioner has retired from service. Learned counsel for the Petitioner also contended that after retirement, the Petitioner has not been granted any pensionary and retiral benefit. Accordingly, the Petitioner has approached this Court by filing the present Writ Petition.

6. In course of argument learned counsel for the Petitioner referring to the letter of the Finance Department dated 04.04.2007 submitted that in the said letter the Finance Department has decided that persons who are appointed under Job Contract and Work Charged establishments on or after 01.01.2005 and brought over to regular establishment on or after 01.01.2005 not covered under the O.C.S.(Pension) Amendment Rules, 2005 as notified in Finance Department Notification No.44451/F dated 17.09.2005 and their cases to be governed under the OCS (Pension) Rules, 1992 and existing GPF(O) Rules would be // 3 //

applicable to them. Learned counsel for the Petitioner also relied upon the decision of this Court in the case of Sk.Abdul Motalib-v.-State of Odisha and another in W.P.(C) No.32200 of 2022 decided on 04.01.2023. Learned counsel for the Petitioner also relied upon the decision of this Court in the case of Sri Radhashyam Mohanta-v.- State of Orissa and others in W.P.(C) No.12377 of 2009 decided on 08.03.2010 by a division Bench of this Court. In the aforesaid judgment dated 08.03.2010 the Division Bench of this Court was of the view that the DLR employees are placed in better footing than the Job Contract Employees as the DLR employees were getting pensionary benefit pursuant to the direction of this Court in another Writ Petition. In such view of the matter, learned counsel for the Petitioner submitted that the case of the Petitioner be considered in the light of the law laid down by this Court as well as the Hon'ble Apex Court and as has been discussed herein above.

7. Learned Additional Standing Counsel on the other hand submitted that the Petitioner was brought over to the Work Charged Establishment much after the amended Pension Rule of the year 2005 came into force. Further, he was regularized in service on 29.03.2017 which is also after the amended Rule came into force with effect from 01.01.2005. In such view of the matter, learned Additional Standing Counsel submitted that the Petitioner is not covered under the Old Pension Rule of the year 1992. Learned Additional Standing Counsel referring to a judgment of the Hon'ble Supreme Court in Uday Pratap Thakur and another-v.-The State of Bihar and others and batch of other matters in Civil Appeal No.3155 of 2023 decided on 28.042023 to impress upon this Court that the period for which the Petitioner performed his work as Work Charged employee shall not be calculated towards computation of pensionary benefit.

8 Considering the submissions made by the learned counsel // 4 //

appearing for the Petitioner as well as the learned Additional Standing Counsel for the State and keeping in view the background facts of the present case as well as the judgment referred to hereinabove, this Court deems it proper to dispose of the Writ Petition by directing the Petitioner to file a fresh representation taking therein all the grounds along with the judgments relied upon by the Petitioner in support of his contention before the Opposite Party nos. 1 & 2 within a period of three weeks from today. In the event such a representation is filed, the opposite Party nos. 1 & 2 shall do well to consider the same keeping in view the judgment referred to herein above and shall dispose of the representation within a period of two months by passing a speaking and reasoned order. The decision so taken be communicated to the Petitioner within two weeks from the date of taking such decision. In the event it is found that the Petitioner is entitled to the pensionary benefit then the same be calculated, sanctioned and paid to the Petitioner within eight weeks from the date of taking such decision.

9. With the aforesaid observation/direction the Writ Petition stands disposed of.

     RKS                                                         ( A.K. Mohapatra )
                                                                        Judge
RAMESH     Digitally signed by
           RAMESH KUMAR SINGH
KUMAR      Date: 2023.05.04
SINGH      18:43:52 +05'30'