Orissa High Court
Rebati Mohan Sahu vs State Of Odisha & Others on 17 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.15775 of 2023
Rebati Mohan Sahu .... Petitioner
Mr. P.K.Mishra, Advocate
-versus-
State of Odisha & others .... Opposite Parties
Mr. A.Behera, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
Order No. ORDER
17.05.2023
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."
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5. It is submitted by the learned counsel for the Petitioner that the
Petitioner was initially engaged on N.M.R. basis on 15.07.1985 i.e.
much prior to the cut-off date as N.M.R. basis 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 12 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 05.01.2010 the Petitioner
was brought over to the Work Charged establishment as Khalasi
(Group-D). Finally, on 21.11.2017 the service of the Petitioner was
regularized under regular establishment as Khalasi. While the Petitioner
was working as such, on attaining the age of superannuation, after
rendering more than 36 years of service, with effect from 31.01.2022
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
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OCS (Pension) Rules, 1992 and existing GPF(O) Rules would be
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 09.03.2021
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
28.04.2023 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.
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8. In reply to the contentions of the learned Additional Standing
Counsel that the case of the Petitioner shall be governed by the law laid
down by the Hon'ble Supreme Court in Uday Pratap Thakur and
another-v.-The State of Bihar and others. Learned counsel for the
Petitioner submitted that the facts of the case in Udaya Pratap Takur's
case are different to the present case. He further submits that in Udaya
Pratap Thakur's case the Hon'ble Supreme Court considered the
Work Charged Establishment Revised Service Conditions (Repealing)
Rules, 2013 and that was in the context of State of Bihar. Moreover, it
is also submitted that in nowhere in the said judgment prohibits that
the work charge period shall not be taken into account while
considering the qualifying period for pension. Moreover, this Court
observes that in the abovenoted judgment the Hon'ble Supreme Court
was dealing with the case of admissibility of pension to the Work
Charged employees and for qualifying period, but in the present case
the Petitioner was brought over to the Work Charged Establishment.
This Court is of the considered view that the Petitioner is squarely
covered in Finance Department Resolution No.17114(255)/F dated
04.04.2007 Therefore, the remedy of the Petitioner is to work out in the
light of the said circular.
9. Considering the submissions made by the learned counsel
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
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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.
( A.K. Mohapatra )
Judge
RKS
Signature Not Verified
Digitally Signed
Signed by: RAMESH KUMAR SINGH
Designation: Ex-A.R.-cum-Sr. Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 21-May-2023 09:17:54
