Additional Chief Secretary To ... vs Gagan Bihari Lenka
2023 Latest Caselaw 13866 Ori

                     IN THE HIGH COURT OF ORISSA AT CUTTACK
                                   W.A. No. 133 of 2023

            Additional Chief Secretary to Govt. of    ....        Appellants
            Odisha, Water Resources Department
            and others
                          Mr. A.R. Dash, Additional Government Advocate
                                        -versus-
            Gagan Bihari Lenka                        ....       Respondent
                                                 Mr. Swapnil Roy, Advocate

                        CORAM:
                        ACTING CHIEF JUSTICE DR. B.R. SARANGI
                        MR. JUSTICE MURAHARI SRI RAMAN

                                         ORDER

Order No. 08.11.2023

02. 1. This matter is taken up through Hybrid mode.

2. Heard Mr. A.R. Dash, learned AGA for the Appellants and Mr.

Swapnil Roy, learned counsel for the Respondent.

3. The Appellants, being the State functionaries, have filed this writ

appeal challenging the order dated 21st October, 2022 passed in

W.P.(C) No.10947 of 2022, by which the learned Single Judge has

directed the present Appellants to extend the similar benefit to the

Respondent, as has been done in the case of Narusu Pradhan v.

State of Odisha (O.A. No.1189(C) of 2006 disposed of on 11th June,

2009) and also directed the Respondent to appear before the

Appellant Nos.1 and 4 by producing the certified copy of the

impugned order to proceed with his claim.

4. Mr. A.R. Dash, learned AGA has contended that the Respondent

is not entitled to the benefit in terms of Narusu Pradhan (supra)

and also contended that the learned Single Judge has committed an

error by granting the claim of regularization and pensionary benefit

of the Respondent, who retired from the service under work

charged establishment justifying the same in light of the order

passed in Narusu Pradhan (supra), where the principle decided by

the Tribunal has not only been confirmed by a Division Bench of

this Court (in State of Odisha v. Narusu Pradhan (W.P.(C)

No.5377 of 2010, dismissed on 19th December, 2011) but also the

SLP, preferred by the State, has been dismissed (vide order passed

by the apex Court on 7th January, 2013 in Civil Appeal No.22498 of

2012). It has been contended that with the disposal of such writ

petition by the learned Single Judge, direction was issued to

consider the case of the Respondent in light of the principles

decided in other case, whereas no discussion was made as to

whether both the cases are factually similar or not in order to

invoke the principles decided in other case. Therefore, the State has

filed this writ appeal before this Court.

5. Mr. S. Roy, learned counsel appearing for the Respondent has

vehemently contended that the Respondent stands on the similar

footing with that of the Appellant in Narusu Pradhan (supra) and

considering the factual background of the case of Narusu Pradhan

(supra) and applying the same to the case of the Respondent, the

learned Single Judge directed to extend the benefit to the

Respondent, as has been done in Narusu Pradhan (supra). In view

of such position, the learned Single Judge has not committed any

error apparent on face of the record so as to cause any interference

of this Court at this stage and, accordingly, the writ appeal filed by

the State may be dismissed.

6. The Respondent has relied upon the judgment of this Court in

case of Abhaya Charan Mohanty v. State of Odisha passed in

WPC(OAC) No.3494 of 2013 disposed of on 14.07.2021 and has

stated that in the said case, the Petitioner who was a work charged

employee, had claimed the pensionary benefits after his retirement

with retrospective effect. This Court, relying upon the order of the

Hon'ble Supreme Court of India in Civil Appeal No.21498 of 2012,

thereby dismissed the State Government's appeal and confirmed the

order dated 19.12.2011 of this Court passed in W.P.(C) No.5377 of

2010 in the case of pensionary benefits as prayed for in that case.

Further reliance has also been placed on the order of a Division

Bench of this Court in Chandra Nandi v. State of Odisha and

others; 2014(I) OLR 734, where this Court had given a direction to

notionally regularize the service of the Petitioner prior to his

superannuation from the service and, accordingly, calculated the

Petitioner's entitlement including the pensionary benefits.

7. On the basis of the factual matrix available on record, it appears

that on 16.05.1992, the Respondent had initially joined as NMR,

who continued in the said post and thereafter brought over to work

charged establishment on 09.10.2009. Thereafter, he retired from

service on 30.06.2020. The continuance of the Respondent in work

charged establishment was considered from 01.03.2009 for all

purposes including the gratuity. The Tribunal, vide order dated

03.05.1999 passed in O.A. No.70(B) of 1997, analyzing various

points of law, directed the State Government to regularize in an

establishment post from the time he completed five years of

continuous service in work charged establishment and the period

from that time till the date of retirement be counted towards the

pension and direction was issued to grant pensionary benefit to the

employees. Challenging the order of the Tribunal, the State filed the

writ application being O.J.C. No.13552 of 1999 and this Court, vide

order dated 01.05.2001, referring to the judgments rendered in

O.J.C. No.1162 of 1999 (State of Orissa v. Jhuma Parida and

others) and O.J.C. No.11028 of 1999 (State of Orissa v. Sudarsan

Sahoo and others), confirmed the order passed by the Tribunal and

dismissed the writ application. After dismissal of such writ

application, the Government brought the employee into regular

establishment for the purpose of granting pensionary benefit. But

the Government has not extended the benefits as has been extended

to the similarly situated persons. Hence, relying upon the judgment

of this Court in Narusu Pradhan (supra), which had been

confirmed by the apex Court, the benefit should be extended to the

Respondent.

8. In view of such position, if the similarly situated persons have

already received the benefits, then the present Respondent cannot

be deprived of the same, more particularly, when the decision in

Narusu Pradhan (supra) has been confirmed by the apex Court.

9. Consequentially, the learned Single Judge has not committed any

error apparent on the face of record, so as to interfere with the same

and deny the benefits to the Respondent.

10. Accordingly, the writ appeal filed by the State merits no

consideration and the same is hereby dismissed.

(DR. B.R. SARANGI) ACTING CHIEF JUSTICE

(M.S. RAMAN) JUDGE S. Behera

Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Nov-2023 12:55:58