Orissa High Court

) Bhagaban Das vs ) State Of Odisha ..... Opposite Parties on 2 April, 2024

Author: Aditya Kumar Mohapatra

Bench: Aditya Kumar Mohapatra

IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.6966 of 2024
1) Bhagaban Das ..... Petitioner
Represented By Adv. -
Prafulla Kumar Mohapatra

-versus-
1) State Of Odisha ..... Opposite Parties
2) Engr In Chief, Water Resources, Bbsr Represented By Adv. -

3) Chief Engr And Basin Manager, Indrabati Mr.D.Mohapatra, ASC
And Kolab Basin, Bariniput
Mr.S.K.Patra, Standing Counsel
4) Addl. Chief Engr, Upper Kolab Project,
Bariniput For A..G.Odisha

5) Supdt. Engr, Uppwer Kolab Head Works
Div., Kolabnagar

6) Secy To Govt. Of Odisha, Finance Dept.,

7) Accountant General(a And E)

CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA

ORDER

Order No.                                                02.04.2024

    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 appearing for the State-Opposite Parties. Perused the writ petition as well as documents annexed thereto.

3. The present writ petition has been filed by the Petitioner with the following prayers:-

"It is therefore, humbly prayed that this Hon'ble Court may graciously be pleased to:-

i) Direct the Opp.Parties to redgularise him in service for a day prior to his superannuation notionally and grant pension and pensionary benefits under the old rule as has been given to similarly situated persons in the light of the decision in the case of Narusu Pradhan in O.A.No.118u9(C) of 2006, which has been confirmed in W.P.(C) No.5377 of 2010 vide order dated 19.123.2011 and SLP in Civil Appeal No.22498 of 2012, vided order dated 07.l01.2013 and State of Odisha vrs. Sarbeswar Bhujabal W.P.(C) No.7680 of 2019 vide order dated 15.11.2019, which has been confirmed in SLOP(C) No.7541/2020, order dated 31.10.2022 and State of Odisha vrs.

Pitambar Sahoo, W.P.(C) No.24041/2017 (decided on 20.12.2017), which has been affirmed in SLP(C) Diary No.30806/2018 and Chandra Nandi v. State of Odisha and others, W.P.(C) No.19550 of 2011 (decided on 03.02.2021), which has been affirmed by the Hon'ble Supreme Court vide order dated 06.05.2022 in SLP(C)No.21180/2021, State of Orissa dn others vrs. Jyostna Rani Patnaik and others, W.P.(C) No.1534/2008 and tghereby quashing the order dated 01.02.2024 vide Annexure-7;

ii) Pass such other order/direction(s) as would be deem fit and proper;"

4. Learned counsel for the Petitioner submitted that the present Petitioner was initially engaged as Work Charged employee on 21.12.1970. While working as such, the present Petitioner was brought over to promotional post under work charged establishment to the post of Truck Driver vide Office Order No.7411 dated 26.09.2009 of the U.K.C. Division, Kolabnagar (Koraput). Thereafter, the Petitioner has retrenched from service w.e.f. 31.03.2020 on attaining the age of 53 years. Now the Petitioner has approached this Court challenging the order dated 01.02.2024 under Annexure-7 whereby his claim for grant of pension has been rejected by the Opposite Parties.

5. Learned counsel for the Petitioner further contended that earlier the Petitioner had approached this Court by filing W.P.(C) No.13927 of 2023. This Court disposed of the said writ petition vide order dated 10.05.2023 by directing the Opposite Parties to consider the case of the Petitioner in the light of the law laid down by the Odisha Administrative Tribunal in Narusu Pradhan v. State of Odisha (O.A.No.1189(C)/2006, affirmed in C.A.No.22498/2012 and Sarbeswar Bhujabal vs. State of Odisha & Ors. (O.A. No.606 of 2015 decided on 05.07.2018). He further contended that in the case of Narusu Pradhan and Sarbeswar Bhujabal, who stands in a similar footing with the Petitioner, after passing of the order by the Tribunal, he has been extended the pensionary benefits under Annexure-9 series of the writ petition. So far the present Petitioner is concerned, his representation was considered pursuant to the order dated 10.05.2023 passed by this Court in W.P.(C) No.13927 of 2023, however the same has been rejected vide order dated 01.02.2024 under Annexure-7 to the writ petition by the Opposite Party No.1 holding that the Petitioner was not a regular employee. Therefore, he is not entitled to the pensionary benefits.

6. Learned Additional Standing Counsel, on the other hand, supported the impugned rejection order dated 01.02.2024 under Annexure-7 to the writ petition. He further contended that the authorities have not committed any illegality in rejecting the claim of the Petitioner. Further it was submitted that pursuant to the order dated 18.11.2021 in the earlier writ petition, the case of the Petitioner was considered by the Opposite Parties and by a detailed and speaking order, the claim of the Petitioner has been rejected by the authorities by holding that the Petitioner is not entitled to get similar benefits as has been granted to Narusu Pradhan and Sarbeswar Bhujabal. The impugned rejection order further reveals that since the Petitioner was a Work Charged Driver, his service was governed under the Orissa Work Charged Employees (Appointment and Conditions of Service) Instruction, 1974. In such view of the matter, learned Additional Standing Counsel submitted that the Petitioner is covered by the aforesaid instruction of the year 1974. Therefore, his case cannot be considered under the OCS (Pension) Rules, 1992. Accordingly, it was prayed that the writ petition be dismissed as the same is devoid of merit.

7. Having heard the learned counsels appearing for the respective parties and on a careful examination of the background facts of the present case, as well as the materials on record, this Court observes that the only question that is required to be adjudicated in the present writ petition is with regard to entitlement of the Petitioner to get pensionary benefits after retirement from service. In the event this Court comes to a conclusion that the Petitioner is entitled to the pensionary benefit, the Petitioner will be eligible to get the pension. The aforesaid issue, as it appears, is no more res integra. The same has been adjudicated by this Court repeatedly on a number of occasions. Apart from the judgment in Narusu Pradhan and Sarbeswar Bhujabal's case (supra), similar issue was decided in Khageswar Jena v. State of Odisha and Ors. (W.P.(C) No.29993 of 2022 disposed of on 18.11.2022) and such order passed by this Court has already been confirmed by the Division Bench of this Court in writ appeal bearing W.A. No.301 of 2023 vide order dated 06.11.2023. Similar view has also been taken in many similar matters like in Sri Narsingh Choudhury v. State of Odisha and others (W.P.(C) No.31366 of 2023, in Pradip Kumar Sahu v. State of Odisha and others (W.P.(C) No.28909 of 2023). All the aforesaid employees belongs to the very same department except Narsingh Choudhury.

8. In view of the aforesaid legal position, this Court has no hesitation in setting aside the impugned order vide No.5379/WR dated 01.02.2024 under Annexure-7 to the writ petition. Accordingly, the same is hereby set aside. Further the matter is remanded back to the Opposite Party No.1 to consider the case of regularisation of service of the Petitioner in regular establishment for grant of pensionary benefits by taking into consideration so much of the service period of the Petitioner so as to calculate the minimum qualifying service period for grant of pensionary benefits from NMR and work charged NMR period of the Petitioner. Accordingly, minimum pensionary benefits be calculated as is due and admissible to the present Petitioner on the basis of the last pay drawn by him. Further, it is directed that in the event similarly situated employees, one of whom being Sarbeswar Bhujabal has been given such pensionary benefits, then the case of the Petitioner also be considered and the Petitioner shall be paid the minimum pension as is due and admissible to him within a period of two months from the date of communication of a certified copy of this order by the Petitioner.