Orissa High Court
Adhir Kumar Swain vs State Of Odisha & Others on 1 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.27020 of 2023
Adhir Kumar Swain .... Petitioner
Mr.Ramanath Acharya, Advocate
-versus-
State of Odisha & others .... Opposite Parties
Mr.N.K.Praharaj, A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
01.09.2023
Order No.
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 Government Advocate for the State. Perused the Writ
Petition as well as the documents annexed thereto.
3. The Petitioner has filed the present writ application with the
following prayer:
" Under the aforesaid facts and circumstances, the
Petitioner humbly prays that this Hon'ble Court may
graciously be pleased to admit the Writ Application, issue
notice to the Opp.Parties and after heating from both the
parties be pleased to
I. Issue direction to the Opp.Parties to Grant retiral benefit
such pension, Gratuity and other retirement benefits
shall be sanctioned and be paid to the Petitioner
counting his entire period of service for the purpose of
pension as per the settled position of law.
II. Direct that the unutilized leave salary shall be paid
counting the entire period of service.
III. Direct that the arrear differential pensionary dues shall
carry 12% interest from the date of entitlement.
And pass any other order/orders, direction/directions as
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this Hon'ble Court deem just and proper in the facts and
circumstances of the case;"
4. It is submitted by the learned counsel for the Petitioner that
the Petitioner was initially appointed on 01.01.1984 in the post of
Work Assistant by the Executive Engineer, Puri Investigation
Division, Puri on NMR basis. Thereafter, the Petitioner continued to
service uninterruptedly. For regularization of service of the
Petitioner, the Petitioner had approached the Tribunal by filing
O.ANo.2080(C) of 1983, which was disposed of on 11.11.1996 with
a direction to the Opposite Parties to consider the case of the
Petitioner within a period of six months. In the meantime, the
Notification of the Finance Department dated 15.05.1997 had come
into force. Accordingly, learned counsel for the Petitioner submitted
that in view of such Notification, the Petitioner should have been
brought over to the Work Charge establishment. Thereafter his
services have been regularized as has been provided in the Resolution
dated 15.05.1997. However, the same was not done by the authority
by deviating the Notification dated 115.05.1997. On 11.11.2009, the
Petitioner was brought over to the Work Charged establishment.
Thereafter on 13.06.2011 he was transferred to the Office of the
Superintendent Engineer, Central Irrigation Division, Bhubaneswar.
While the matter stood thus, on 01.12.2018 Finance Department,
government of Odisha issued a Resolution thereby regularizing the
services of Work Charged/NMR/Job Contract employees. However,
despite such Resolution the services of the Petitioner cannot be
regularised. Finally, on 15.04.2019 the Petitioner submitted a
representation before the Opposite parties for regularization of his
service. Finally on 27.01.2023 the services of the Petitioner was
regularized as per the decision of the Government in the post of
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Helper (Grade-I). Finally, the Petitioner was retired from service on
31.01.2023 on attaining the age of superannuation from the post of
Helper Grade-I. In view of the aforesaid factual background, learned
counsel for the Petitioner submits that the Opposite Party No.1 be
directed to pay the pensionary benefit to the Petitioner taking into
consideration the past service rendered by the Petitioner both as
NMR as well as his service rendered in the Work Charged
establishment. Accordingly, the Petitioner has approached this Court
for a direction to the Opposite Parties to pay the retirement benefit as
well as the pensionary benefit as is due and admissible to the
Petitioner.
5. Learned Additional Government Advocate on the other hand
contended that since the Petitioner does not have the qualifying
service period, he is not entitled to pensionary benefit. Accordingly,
the authorities have not considered the case of the Petitioner for grant
of pensionary benefit. However, with regard to payment of retiral
dues, learned Additional Government Advocate submitted that the
amount as is due ad admissible to the Petitioner has already been paid
to the Petitioner on his superannuation from service. Accordingly it
was submitted that the Writ Petition was devoid of merit and the
same be dismissed.
6. Having heard learned counsel for the parties and on careful
examination of the background facts of the present case and keeping
in view the well settled position of law that once an employee who
was working initially as MMR, thereafter brought over to Work
Charged establishment and finally, his service was regularized shall
be considered for payment of pensionary benefit by taking into
consideration as how much period of service rendered in Work
charged and NMR establishment, calculate the minimum qualifying
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period of service for grant of pensionary benefit. Such a proposition
of law as has been propounded by this Court has already been
accepted by many judgments of this Court. Keeping in view the
aforesaid legal position, this Court deems it proper to dispose of the
Writ Petition by directing the Opposite Parties to calculate the
minimum qualifying service period of the Petitioner taking the
shortfall period from the service period of the Petitioner as work
Charged employee/NMR to calculate the minimum qualifying
service period, the benefit which is due and admissible to the
Petitioner on the basis of his last pay drawn accordingly, the same be
sanctioned and disbursed to the Petitioner within a period of two
months from the date of communication of the certified copy of this
order. In the event, the Petitioner though is getting any other
pensionary benefit, the same shall be surrendered before the
Government. Any decision taken be communicated to the Petitioner
within 10 days of taking such decision.
7. With the aforesaid observation, the writ application stands
disposed of.
8. Issue urgent certified copy of this order as per Rules.
RKS ( A.K. Mohapatra )
Judge
Signature Not Verified
Digitally Signed
Signed by: RAMESH KUMAR SINGH
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 04-Sep-2023 12:01:50
