Orissa High Court
Swetapadma Samal vs State Of Odisha And Others on 22 September, 2023
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) NO. 26508 OF 2017
In the matter of an application under Articles 226 & 227 of
the Constitution of India.
---------------
Swetapadma Samal ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For petitioner : Mr. Budhadev Routray,
Sr. Advocate along with
M/s. S. Das, R.P. Dalai,
K. Mohanty, S.K. Samal and
S.D. Routray, Advocates.
For opp. parties : Mr. A.K. Mishra,
Addl. Government Advocate
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 18.09.2023:: Date of Judgment :22.09.2023
DR. B.R. SARANGI, J. The petitioner, who was appointed as a Junior
Engineer (Civil) on contractual basis and subsequently
whose services were regularised after completion of six
years, has filed this writ petition seeking to quash the order
dated 21.09.2016 passed by the Odisha Administrative
Tribunal, Cuttack Bench, Cuttack in O.A. No. 3422 (C) of
2012, wherein, instead of extending the benefit as prayed
for by the petitioner in the Original Application, direction
has been given to the opposite parties to examine with
regard to applicability of the circular dated 04.04.2007 in
the case of the petitioner, which was exclusively applicable
to job contract and work charged employees. The petitioner
has further prayed to direct the opposite parties to extend
the benefit by treating the period of her service from the
date of her initial engagement against a substantive
vacancy of Junior Engineer and bring her to the fold of the
Odisha Civil Service (Pension) Rules, 1992 and General
Provident Fund (Odisha) Rules, 1938 and grant all
consequential benefits, as due and admissible to her, in
accordance with law.
2. The factual matrix of the case, in brief, is that
the Government of Odisha in the Department of Planning
and Coordination issued a circular, vide memo no. 684 (64)
dated 18.01.1972, to all Departments of Government/
Heads of the Department that Government have been
pleased to direct to follow the procedure to be adopted with
immediate effect until further orders in absorbing
Engineering Personnel in various posts lying vacant in each
departments. It was further instructed that employment of
Engineering Personnel, i.e., Graduate Engineer and
Diploma Engineer should be made year-wise in order of
merit. All candidates of particular year have to be absorbed
first before candidates of the following years are considered.
The Planning and Coordination Department will continue to
maintain register of these candidates and on receipt of
requisitions for filling up of posts under various
departments, the Planning and Coordination Department
should recommend the names of the candidates as many as
four times of the vacancies. Recruitment to all posts, i.e.,
Junior Engineer, Sub-Assistant Engineer, Surveyor, Tracer,
Draftsman, Embankment Inspector and Work Sarkar has
to be made through those departments as was being made
earlier.
2.1. In exercise of the powers conferred by the proviso
to Article 309 of the Constitution of India, the Governor of
Odisha for the regulation of recruitment and conditions of
service of persons appointed as Junior Engineers made the
rules, namely, the "Odisha Junior Engineers' Cadre
(Recruitment and Condition of Service) Rules, 1972",
hereinafter to be referred as "1972 Rules". Rule 5 thereof
deals with method of recruitment. Sub-rule (2) of Rule 5
states that there shall be a committee comprising of the
Chief Engineers, Roads and Buildings, Irrigation,
Electricity, Public Health and Rural Engineering
Organisation, the Director of Lift Irrigation and Additional
Chief Engineer (Mechanical), and the Chairmanship of the
Committee shall be determined according to the cadre to
which recruitment is to be made. Rule-6 deals with
condition of eligibility; Rule-7 deals with disqualifications;
Rule 8 deals with the admission to the examination; Rule 9
deals with conduct of the selection; Rule 10 prescribes
preparation and publication of the list by the Committee;
Rule 11 prescribes for filling up of vacancies; Rule 14 deals
with probation and probationers; Rule 15 deals with
departmental and professional examination; and Rule 16
deals with seniority.
2.2. While the said rule was in force, subsequently in
the year 1991, the earlier circular dated 18.01.1972 and
resolution dated 06.08.1979 were modified vide resolution
dated 03.04.1991. In the said modified resolution, it was
resolved by the General Administration Department for
constitution of committee consisting of Chief Engineers of
all Departments and other Heads of the Department
concerned for appointment of Diploma Holders in all
branches. In Clause-4 of the said resolution it was decided
that "all appointments in the Government Department,
Undertaking and other Government institutions are to be
made from this panel of candidates maintained by the
Committee".
2.3. After completion of Diploma in Civil Engineering,
name of the petitioner was empanelled in the panel list of
Engineers maintained by the Engineer-in-Chief (Civil) for
the purpose of giving appointment from out of the said
panel in order of her position in the list, which was in
consonance with the 1972 Rules and the guidelines, as
mentioned above, issued by the Government from time to
time. After empanelment in the list, the name of the
petitioner was sponsored by the Committee of the Chief
Engineers, vide letter dated 29.03.2003, for appointment to
the post of Junior Engineer. In the said letter, the
Chairman, Selection Committee had sponsored names of 80
numbers of unemployed Diploma Engineers (Civil),
including the petitioner, to the Chief Engineer Rural Works-
I, Bhubaneswar. On the basis of the said letter of approval
dated 29.03.2003, the petitioner, along with other selected
candidates, was given appointment to the post of Junior
Engineer (Civil) on contractual basis with a consolidated
salary of Rs.5000/- per month and their services were
placed before the Chief Engineer Rural Works vide letter
dated 07.07.2003. In the said letter, the name of the
present petitioner found placed at sl. no. 35 and she was
posted to in RW Section, Hindol under RW Division,
Dhenkanal against the existing vacancy.
2.4. While the petitioner was continuing as such, the
office of the Engineer-in-Chief (Civil), Odisha, vide memo
dated 09.03.2011, issued an order of promotion, which was
passed in pursuance of the Works Department Resolution
dated 22.09.2008, and subsequently in conformity with the
Works Department letter dated 26.02.2011 the Diploma
Holders (Civil) sponsored to Rural Works (RW) wing by the
committee of the Chief Engineer, vide EIC (Civil) letter dated
29.03.2003, were absorbed against the regular vacant post
of Junior Engineers (Civil) under RW wing in Group C
category of post in the pay scale of Rs.9300 to 34,800/-
with Grade Pay of Rs.4200/- under the Pay Band-II of
ORSP Rules, 2008 with all other allowances as admissible
from time to time with effect from their date of joining in
regular establishment. In the said order of promotion the
name of the petitioner was found placed at sl. no. 12 and
her service was brought into regular establishment after
completion of six years of uninterrupted service, i.e., with
effect from 13.07.2009.
2.5. After regular absorption of the petitioner's service
in the regular cadre of Junior Engineer, the petitioner was
allotted with a GPF Account bearing No. PW-068189 and
right from her regular absorption as Junior Engineer she
had been subscripting GPF in her account.
2.6. While the petitioner was so continuing, the
Government of Odisha in the Finance Department issued a
circular on 04.04.2017 under the subject applicability of
new restructured defined contribution pension scheme in
case of work charged employees and job contract
employees, who were appointed prior to 01.01.2005 and
subsequently brought over to the regular establishment on
or after 01.01.2005. In the said circular, it was clarified
that, the Government, after careful consideration of the
above aspect, decided that the persons who were appointed
under job contract and work charged establishment prior to
01.01.2005 and brought over to the regular establishment
on or after 01.01.2005 are not to come under the coverage
of the OCS (Pension) Amendment Rules, 2005, rather their
cases would be governed in terms of the OCS (Pension)
Rules, 1992 and existing GPF (O) Rules, which would be
applicable to them.
2.7. On the basis of such clarification issued by the
Finance Department dated 04.04.2007 and by referring to
such clarification, the works Department, vide letter dated
16.03.2012, issued a letter to the Engineer-in-Chief (Civil)
Odisha, Bhubaneswar regarding applicability of newly
restructured defined contributory pension scheme in case
of contractual Junior Engineers, who were appointed as
such prior to 01.01.2005 and subsequently absorbed in
regular establishment on or after 01.01.2005. In the said
clarification, the claim of the petitioner for consideration of
her service under the O.C.S. (Pension) Rules 1992 was
rejected and it was clarified that the circular dated
04.04.2007 issued by the Finance Department is not
applicable in the case of Junior Engineers appointed on
contractual basis.
2.8. Assailing the Finance Department clarification
dated 04.04.2007, as well as the Works Department
clarification dated 16.03.2012, the petitioner preferred an
Original Application bearing O.A. No. 3422 (C) of 2012
before the Odisha Administrative Tribunal, Cuttack Bench,
Cuttack. The said Original application was disposed of, vide
order dated 21.09.2016, by directing the State Government
to take a decision in the matter as to whether the said
rules, i.e., the OCS (Pension) Rules, 1992 can be extended
to the petitioner, who was initially appointed on contractual
basis prior to 01.01.2005 and subsequently regularised on
completion of six years of uninterrupted service. The
Tribunal was not inclined to issue any direction to extend
the benefit as per the Finance Department circular dated
04.04.2007 holding that it is a policy decision of the
Government. Hence, this writ petition.
3. Mr. B. Routray, learned Senior Advocate
appearing along with Mr. J. Biswal, learned counsel for the
petitioner contended that even though the petitioner was
appointed against a substantive vacant post on contractual
basis on 07.07.2003 and, thereafter, she was brought to
the regular establishment in the year 2009, but the Works
Department issued a letter on 16.03.2012 stating therein
that the contractual Junior Engineers, who were appointed
prior to 01.01.2005 and subsequently absorbed in regular
establishment on or after 01.01.2005, will not be governed
under the OCS (Pension) Rules, 1992 and the circular
issued on 04.04.2007 will not be applicable to the case of
Junior Engineers appointed on contractual basis. Such
letter dated 16.03.2012 is absolutely arbitrary,
unreasonable and contrary to the provisions of law. He
further contended that since the petitioner was appointed
by following due procedure of law and on being sponsored
by the selection committee from out of the panel as per the
rules and guidelines issued from time to time and
continuously discharging her responsibility assigned to her,
the OCS (Pension) Amendment Rules, 2005 has no
application because her appointment was made prior to
01.01.2005 against a substantive vacancy and
subsequently brought over to the regular establishment. It
is further contended that after bringing the petitioner to the
regular establishment, GPF Account was opened and the
petitioner was also contributing to the said GPF Account.
But all of a sudden by issuing a circular the same has been
stopped. Therefore, the opposite parties have committed
gross illegality and irregularity by not allowing the
petitioner to continue under the OCS (Pension) Rules,
1992, as it was applicable to the employees appointed prior
to 01.01.2005. The Tribunal, while passing the order
impugned, would have taken into consideration this aspect
and decided the same, instead of remitting back the matter
to the Government for reconsideration. As such, the
Tribunal has committed gross error apparent on the face of
the record, for which the petitioner has challenged the
same in the present writ petition.
3.1. To substantiate the contentions raised, learned
Senior Advocate appearing for the petitioner placed reliance
on the decisions of the apex Court in the cases of G.P.
Doval and others v. Chief Secretary, Government of
U.P. and others, AIR 1984 SC 1527; S. Sumnyan and
others v. Limi Niri and others, AIR 2010 SC 2159; Habib
Khan v. State of Uttarakhand and others, (2019) 10
SCC 542; as well as the judgment passed by this Court in
the case of Niranjan Das and others v. State of Odisha
and others, WPC (OAC) No. 1074 of 2017 decided on
07.10.2021, which was confirmed in W.A. No. 936 of 2021
decided on 15.02.2023.
4. Mr. A.K. Mishra, learned Addl. Government
Advocate appearing for the State-opposite parties
contended that the petitioner though was appointed on
07.07.2003, pursuant to the appointment letter issued in
her favour, the same was on contractual basis, and her
services were regularised in the year 2009. The petitioner
has sought relief for coverage of service under the OCS
(Pension) Rules, 1992 and the GPF (Odisha) Rules, 1938
although the State Government have introduced new
restructured defined contribution pension scheme with
effect from 01.01.2005 in tune with the principle adopted
by the Central Government effective in respect of Central
Government employees with effect from 01.01.2004. He
further contended that the petitioner has claimed that her
previous engagement as a contractual employee should be
considered, as is made applicable in respect of work-
charged employees and job contract employees. According
to him, as a policy decision, the State Government have
adopted fixed term based contractual mode of engagement
of personnel in different establishments with payment of
definite sum of remuneration. Accordingly, such personnel
have been engaged on fixed term basis and such
engagement is not extended with any service benefits as
applicable to a regular Government Servant.
4.1. It is further contended that the State
Government have taken austerity measures due to
mounting revenue deficits. With a view to rightsizing the
establishments, the base level posts were downsized and to
meet the exigencies, temporary contractual posts were
created for a fixed term and appointments were made on
contractual basis. The petitioner, being sponsored by the
Chairman, Committee of the Chief Engineers and
concerned Heads of Department and Engineer-in-Chief
(Civil), Odisha, Bhubaneswar, was initially engaged on
contractual basis under term engagement and, therefore,
she is not entitled to get the benefit as claimed in the
present writ petition. Thereby, the Tribunal is well justified
in passing the order impugned, which does not warrant
interference by this Court at this stage.
5. This Court heard Mr. Budhadev Routray, learned
Senior Advocate appearing along with Mr. J. Biswal,
learned counsel for the petitioner and Mr. A.K. Mishra,
learned Addl. Government Advocate appearing for the
State-opposite parties in hybrid mode and perused the
records. Pleadings have been exchanged between the
parties and with the consent of learned counsel for the
parties, the writ petition is being disposed of finally at the
stage of admission.
6. Regard being had to the facts and rival
contentions, as narrated above, the only question to be
determined by this Court is, whether the petitioner, who
was initially appointed on contractual basis prior to
01.01.2005 and subsequently regularised after 01.01.2005,
can be extended with the benefit of the OCS (Pension)
Rules, 1992 and the GPF (O) Rules, 1938 or not?
7. There is no dispute before this Court that the
petitioner was appointed on contractual basis pursuant to
the appointment order issued on 07.07.2003, as per the
prevailing 1972 Rules and the guidelines issued from time
to time, being sponsored by the Chairman, Committee of
the Chief Engineers and concerned Heads of Department
and Engineer-in-Chief (Civil), Odisha, Bhubaneswar. Even
though such order of appointment was issued on
contractual basis, that itself was against a substantive
vacancy. Merely because the Government had taken
austerity measures due to mounting revenue deficits, the
petitioner was given appointment on contractual basis for
fixed term and on completion of six years her services were
regularised against a substantive vacant post. This itself
indicates that a right had been accrued in favour of the
petitioner, the day she joined in the post on contractual
basis and subsequently regularised in the said post on
completion of six years of service. By the time the
appointment on contractual basis was given on 07.07.2003,
the OCS (Pension) Rules, 1992 was in force. Therefore,
rightly after completion of six years of service on
contractual basis, when the petitioner was brought to the
regular establishment, her GPF account was opened and
GPF number was allotted in her favour by the opposite
parties, bringing her into the pensionable establishment.
But all of a sudden, the benefit, which had been extended
in favour of the petitioner by opening the GPF Account, was
withdrawn on the sole ground contending that by the date
of regularisation of the services of the petitioner since the
OCS (Pension) Amendment Rules, 2005 has already come
into force, the petitioner cannot be brought into the fold of
the OCS (Pension) Rules, 1992. But fact remains, if the
posts are made available prior to the commencement of the
OCS (Pension) Amendment Rules, 2005 giving effect from
01.01.2005, the petitioner ought to have been covered
under the old rules, i.e. OCS (Pension) Rules, 1992, instead
of bringing her under the OCS (Pension) Amendment Rules,
2005, i.e., New Restructured Defined Contribution Pension
Scheme, which has come into force with effect from
01.01.2005.
8. In G.P. Doval (supra), the apex Court held that if
the first appointment is made by not following the
prescribed procedure but later on the appointee is approved
making his appointment regular, it is obvious
commonsense that in the absence of a contrary rule, the
approval which means confirmation by the authority which
had the authority, power and jurisdiction to make
appointment or recommend for appointment, will relate
back to the date on which first appointment is made and
the entire service will have to be computed in reckoning the
seniority according to the length of continuous officiation.
9. G.P. Doval (supra) has also been referred to in S.
Sumnyan (supra), wherein, the apex Court at paragraph-
34 of the said judgment observed as follows:-
"34. We may here also appropriately refer to
another decision of this Court in the case of G.P.
Doval v. Chief Secy., Govt. of U.P. reported in
(1984) 4 SCC 329, wherein this Court held that
regularization of the services of a person, whose
initial appointment although not in accordance with
the prescribed procedure but later on approved by
an authority having power and jurisdiction to do so
would always relate back to the dates of their
initial appointment. Para 13 is, which is
reproduced hereinbelow:
"13. ..........................If the first
appointment is made by not following
the prescribed procedure but later on
the appointee is approved making his
appointment regular, it is obvious
commonsense that in the absence of a
contrary rule, the approval which
means confirmation by the authority
which had the authority, power and
jurisdiction to make appointment or
recommend for appointment, will relate
back to the date on which first
appointment is made and the entire
service will have to be computed in
reckoning the seniority according to the
length of continuous officiation. That
has not been done in this
case.................. ........"
10. If the above mentioned principle is applied to the
present case, it would be seen that the petitioner herein
was appointed on contractual basis, pursuant to the order
of appointment issued on 07.07.2003, and thereafter her
services were regularised on completion of six years and
she was allotted with GPF Account bearing No. PW-068189,
right from her regularisation, monthly subscriptions
towards GPF account were deducted from her salary.
Therefore, subsequent denial of such benefit is arbitrary,
unreasonable and contrary to the provisions of law and, as
such, is hit by Article 14 of the Constitution of India.
11. It is of relevance to mention here that some of
the Junior Assistants, who were appointed on contractual
basis with consolidated remuneration in different Heads of
the Department in the year 2003 and subsequently brought
over to regular establishment, like the present petitioner,
had preferred O.A. No. 2984 (C) of 2006 and batch for their
regularization and for counting of their period of service
rendered by them from the date of their actual joining till
regular appointment as qualifying service period for the
purpose of pension under the OCS (Pension) Rules, 1992.
The Tribunal, vide order dated 26.03.2009, allowed the
aforesaid Original Applications. The said order of the
Tribunal was challenged by the Government in Finance
Department before this Court in W.P.(C) No. 12569 of 2010,
and the said writ petition was dismissed vide order dated
23.02.2012. Consequentially, in adherence to the direction
of the Tribunal, which was confirmed by this Court by
dismissing the writ petition filed by the State on 23.02.2012
in W.P.(C) No. 12569 of 2010, the Finance Department
extended the benefit of the OCS (Pension) Rules, 1992 and
the GPF (O) Rules, 1938 to the employees similarly situated
with the present petitioner. Thereby, the Tribunal has
committed gross error apparent on the face of the record
and, without taking into consideration the above aspect in
its proper perspective, directed the State Government to
take a decision regarding applicability of the resolution
dated 04.04.2007 to the Junior Engineers engaged on
contractual basis, which is absolutely fallacious and,
therefore, the same cannot be sustained in the eye of law.
12. The circular, which was issued on 04.04.2007 by
the Government of Odisha in Finance Department bearing
No. 17114 (255/F) / PEN-7/07 dated 04.04.2007, reads as
follows:-
"GOVERNMENT OF ORISSA
FINANCE DEPARTMENT
No. 17114 (255/F)
PEN-7/07
From
Shri K.C. Mishra,
Joint Secretary to Government.
To
The Principal Secretaries/
Commissioner-cum-Secretaries/
Special Secretaries to Government.
All Departments/ All Heads of the
Departments/ All Collectors.
Sub: Applicability of new restructured
defined contribution pension scheme in
case work charged employees and job
contract employees who were
appointed prior to 01.01.2005 and
subsequently brought over to the
regular establishment on or after
01.01.2005- Clarification regarding.
Bhubaneswar, the 4th April, 2007.
Sir,
I am directed to say that the State
Government has introduced the new restructured
defined contribution Pension Scheme for the new
entrants in the State Government service with
effect from 1.1.2005 vide Finance Department
Notification No. 44451/F dt. 17.9.2005.
Now doubts have arisen in certain
quarters as to whether the above new pension
scheme would be applicable in case of work
charged employees and job-contract employees
who are appointed as such prior to 1.1.2005 and
subsequently brought over to regular establishment
on or after 1.1.2005.
After careful consideration of the
above aspect, it has now been clarified that the
persons who are appointed under Job-Contract and
Work Charged Establishment prior to 01.01.2005
and brought over to the regular establishment on or
after 01.01.2005 are not to come under the
coverage of OCS (Pension) Amendment Rules 2005
as notified in Finance Department Notification No.
44451/F dated 17.09.2005. Their cases would be
governed in terms of the OCS (Pension) Rule, 1992
and existing GPF (O) Rules would be applicable to
them.
Yours faithfully,
Sd/-
Joint Secretary to Government."
On perusal of the aforementioned Government Circular, it
is made clear that the Government has clarified that the
persons, who are appointed under the job-contract and
work charged establishment prior to 01.01.2005 and
brought over to the regular establishment on or after
01.01.2005, are not to come under the coverage of the OCS
(Pension) Amendment Rules, 2005, as notified in Finance
Department Notification No. 44451/F dated 17.09.2005.
Their cases would be governed in terms of the OCS
(Pension) Rules, 1992 and the existing GPF (O) Rules, 1938
would be applicable to them.
13. "Job Contract", as it is understood, in relation to
an employee, means the nature of the work which he is
employed to do in accordance with his contract and the
capacity and place in which he is so employed.
14. In State of Rajasthan v. Kunji Raman, AIR
1997 SC 693, the apex Court held that the expression
"work-charged employees" means employees engaged on a
temporary basis for the execution of a specified work.
15. In Jaswant Singh v. Union of India, (1979) 4
SCC 440, the apex Court held that the "work-charged
employees" are those employees who are engaged on a
temporary basis and the wages and allowances are
chargeable to works and their appointments are made for
the execution of a specified work. From very nature of their
employment, the services of such employees automatically
come to an end on the completion of the works for the sole
purpose of which they are employed.
16. Looking into the meaning attached to the words
"job-contract" and "work-charged" employees, if their
services have been regularised after commencement of the
O.C.S. (Pension) Amendment Rules, 2005, i.e. after
01.01.2005, even though they were continuing in service
prior to commencement of the said rules and the
Government in their wisdom decided to bring them under
the OCS (Pension) Rules, 1992 and GPF (O) Rules, 1938,
there is no valid and justifiable reason not to bring the
contractual Engineers, like the present petitioner,
appointed prior to 01.01.2005 into the fold of the OCS
(Pension) Rules, 1992 and GPF (O) Rules, 1938. The
impugned action of the State authorities is absolutely an
outcome of non-application of mind, reason being the
contractual employees stand altogether on a different
footing than that of the job-contract and work-charged
employees, for whom, by issuing the circular dated
04.04.2007, the benefit has been extended.
17. In the above view of the matter, the petitioner,
who was appointed on contractual basis by following due
process of selection and in accordance with the rules and
subsequent guidelines, and such contractual appointment
having been made as against a substantive vacancy, the
Government, on the plea of austerity measure, cannot deny
the petitioner, after regularisation of her service, to come
under the fold of the OCS (Pension) Rules, 1992 and GPF
(O) Rules, 1938.
18. In the above context, it is profitable to refer to the
judgment of the apex Court in Habib Khan (supra),
wherein it has been held that the period of work-charged
service can be reckoned for the purpose of computation of
qualifying period for grant of pension. Applying the same
analogy to the present case, there cannot be any denial to
bring the petitioner to the fold of the OCS (Pension) Rules,
1992 and GPF (O) Rules, 1938.
19. In the Constitution Bench decision, in the case of
Chairman, Railway Board and others v. C. R.
Rangadhamaiah and others, A.I.R. 1997 SC 3828, the
apex Court was considering the amendment brought into
Rule-2544 of the Indian Railway Establishment Code, Vol.
II (Fifth Reprint), which was given retrospective effect. The
said Rule was amended by Notification No. G.S.R. 1143 (E)
with effect from 1st January, 1973 and by Notification No.
G.S.R. 1144 (E), the amendment was made with effect from
1st April, 1979. The apex Court in paragraph 20 of the said
judgment held as follows:-
"20. It can, therefore, be said that a rule
which operates in futuro so as to govern future
rights of those already in service cannot be
assailed on the ground of retrospectivity as being
violative of Articles 14 and 16 of the Constitution,
but a rule which seeks to reverse from an anterior
date a benefit which has been granted or availed,
e.g., promotion or pay scale, can be assailed as
being violative of Articles 14 and 16 of the
Constitution to the extent it operates
retrospectively".
Again in paragraph 24 of the said judgment in the case of
Chairman, Railway Board and others (supra), it was
held thus :-
"24. In many of these decisions the
expressions "vested rights" or "accrued rights"
have been used while striking down the impugned
provisions which had been given retrospective
operation so as to have an adverse effect in the
matter of promotion, seniority, substantive
appointment, etc. of the employees. The said
expressions have been used in the context of a
right flowing under the relevant rule which was
sought to be altered with effect from an anterior
date and thereby taking away the benefits
available under the rule in force at that time. It has
been held that such an amendment having
retrospective operation which has the effect of
taking away a benefit already available to the
employee under the existing rule is arbitrary,
discriminatory and violative of the rights
guaranteed under Articles 14 and 16 of the
Constitution. We are unable to hold that these
decisions are not in consonance with the decisions
in Roshan Lal Tandon (AIR 1967 SC 1889) (supra);
B.S. Yadav (AIR 1981 SC 561) (supra) and Raman
Lal Keshav Lal Soni (AIR 1984 SC 161) (supra)".
20. Ultimately, it was held by the apex Court that the
impugned amendments, in so far as they have been given
retrospective operation, are violative of the rights
guaranteed under Articles 14 & 16 of the Constitution on
the ground that they are unreasonable and arbitrary, since
the said amendments have the effect of reducing the
amount of pension that has become payable to the
employees, who had already retired from service on the date
of issuance of the notifications as per the provisions
contained in Rule 2544 that were in force at the time of
their retirement.
21. The aforesaid Constitution Bench decision,
therefore, has emphasized with regard to the right of an
employee, which has accrued in his favour on the date he
retired and such right cannot be taken away by amending
the Rules retrospectively prior to his retirement.
22. In the case of State of Madhya Pradesh and
others v. Yogendra Shrivastava, (2010) 12 SCC 538, the
apex Court was considering the amendment brought to
Madhya Pradesh Employees' State Insurance Service
(Gazetted) Recruitment Rules, 1981 by notification dated
20.05.2003 giving it a retrospective effect from 14.10.1982.
By the said amendment, the earlier provision in the Rule
prescribing payment of None Practising Allowance @ 25% of
pay was amended to the effect that "NPA at such rates as
may be fixed by the State Government from time to time by
the orders issued in this behalf" in place of words "NPA @
25% of the pay" wherever they occurred in the Rules.
23. On considering the said question, the apex
Court, in paragraph 15 of the said judgment in the case of
State of Madhya Pradesh (supra) held as follows:-
"15. It is no doubt true that Rules made under
Article 309 can be made so as to operate with
retrospective effect. But it is well settled that rights
and benefits which have already been earned or
acquired under the existing Rules cannot be taken
away by amending the Rules with retrospective
effect. (See N.C. Singhal v. Armed Forces Medical
Services ; K.C. Arora v. State of Haryana and T.R.
Kapur v. State of Haryana). Therefore, it has to be
held that while the amendment, even if it is to be
considered as otherwise valid, cannot affect the
rights and benefits which had accrued to the
employees under the unamended rules. The right
to NPA @ 25% of the pay having accrued to the
respondents under the unamended Rules, it
follows that respondent employees will be entitled
to the non-practising allowance @ 25% of their pay
up to 20-5-2003."
24. In a large number of cases, the apex Court has
categorically laid down that the right of an employee, which
accrued in his favour on the date of appointment, cannot be
taken away by the amending provisions of the Rules
concerning the service with retrospective effect. An
employee, while entering into service, is subjected to the
condition of service as on the date, when he joins. Any right
given to such employee under the provision of any Act or
Rules governing the employment, if taken away by
amending such Rules with retrospective effect, the same
would be violative of Articles 14 & 16 of the Constitution
and it would amount to an arbitrary and unreasonable
action.
25. Taking into consideration the above principles
laid down by the apex Court, this Court, in the case of
Anand Dash and seven others v. State of Orissa and
others, along with batch of matters, as reported in 2014
(Supp.-I) OLR 754, held that since vacancies were made
available prior to commencement of OCS (Pension)
Amendment Rules, 2005 on 17.09.2005 giving the same
effective with effect from 01.01.2005, the advertisement was
issued to fill up such vacancies prior to commencement of
such rules and on that basis they were selected and
appointed on 02.04.2005, i.e., prior to commencement of
such rule, but after the effective date of commencement of
the OCS (Pension) Amendment Rules, 2005, i.e.,
01.01.2005, and further more since similar benefit had
already been extended to 13 number of OES Officers, such
employees are to be covered under the OCS (Pension) Rules,
2005 and GPF (O) Rules, 1938. The said judgment of this
Court was assailed by the State Government before the
apex Court in Special Leave to Appeal (C) Nos. 35462-
35464 of 2014 and the apex Court observed that there is no
cogent reason to entertain the petitions and accordingly the
said petitions were dismissed vide order dated 09.03.2018.
26. Applying the said analogy to the present case, if
the petitioner was appointed against the substantive
vacancy on 07.07.2003, i.e., prior to commencement of the
OCS (Pension) Amendment Rules, 2005, may be on
contractual basis, and discharging her responsibility and
subsequently her services were regularised after completion
of six years uninterrupted contractual employment, even
though the OCS (Pension) Amendment Rules, 2005 came
into force with effect from 01.01.2005, that has no
application to the present case and the petitioner is entitled
to such relief from the date of her initial appointment and
not from her regularisation of service after completion of
her six years of contractual employment. Under such
circumstances, the Tribunal should not have remanded the
matter to the State Government for consideration, so far as
applicability of the circular issued on 04.04.2007. Even
otherwise also, if the benefit has already been extended to
the job-contract and work-charged employees, the
contractual employee appointed against the substantive
vacancy stands on a much better footing than those
persons, for which the benefit should have been extended
to the petitioner by reckoning her service from the date of
initial appointment on contractual basis, otherwise, it will
amount to unreasonable and arbitrary exercise of power
and, more so, violation of Articles 14 and 16 of the
Constitution of India.
27. In view of the facts and law, as discussed above,
the order dated 21.09.2016 passed by the Odisha
Administrative Tribunal, Cuttack Bench, Cuttack in O.A.
No. 3422 (C) of 2012 under Annexure-9 cannot be
sustained in the eye of law and the same is hereby set
aside. As a consequence thereof, this Court directs the
opposite parties to bring the petitioner to the fold of the
OCS (Pension) Rules, 1992 and the GPF (O) Rules, 1938 by
reckoning her date of initial appointment on contractual
basis, i.e., on 07.07.2003.
28. In the result, therefore, the writ petition is
allowed. But, however, under the facts and circumstances,
there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 22nd September, 2023, Arun
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary
Reason: Authentication
Location: Orissa High Court
Date: 22-Sep-2023 16:52:37
