) Pabitra Sahoo vs ) State Of Odisha ..... Opposite Parties
2024 Latest Caselaw 5870 Ori

Orissa High Court

) Pabitra Sahoo 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.6979 of 2024

          1) Pabitra Sahoo                                        .....                      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, Brahmani                                Mr.D.Mohapatra, ASC
          Basin, Samal
                                                                          Mr.S.K.Patra, Standing Counsel
          4) Addl. Chief Engr, Rengali Head Works
          Circle, Samal                                                                  For A.G.Odisha

          5) Supdt. Engr, Head Works Div., Samal

          6) Accountant General(a And E)




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




Order No.                                               ORDER

                                                       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 prayed, therefore that this Hon'ble
     Court may graciously be pleased to;
     i)    Direct the Opp.Parties to regularize him in
           service for a day prior to his
           superannuation and grant pension and
           pensionary      benefits      under     the
           OCS(Pension) Rules, 1992 taking into
           account his initial appointment as has
           been given to similarly situated persons in
           the light of the decision in the case of
           Narusu Pradhan, O.A.No.1189(C) of
           2006, which has been affirmed in W.P.(C)
           No.5377/2010 and Special Leave to
           Appeal (Civil) CC No.SLP No.22498/2012,
           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 in Special Leave to Appeal
           No.21180/2021 and Sarbeswar Bhujabal
           v. State of Orissa and others,
           O.A.No.606/2015. Which has been
           affirmed in W.P.(C) No. 7680/2019 and
           Special Leave to Appeal No.7541/2020
           and State of Orissa and others vrs.
           Jyostna Rani Patnaik and others, W.P.(C)
           No.1534/2008, State of Orissa vrs.
           Pitambar        Mohapatra,         W.P.(C)
           No.13483/2012 and State of Orissa vrs.
           Radhjeshyam         Mohanta,        W.P.(c)
             No.12377/2009, which has been affirmed
            in SLP(C) No.36038/2010 and thereby
            quash the order dated 08.09.2023 vide
            Annexure-5 as it is illegal and not in
            consonance with the principles decided in
            the above cases;
     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 NMR on
01.09.1981

. While working as such, the present Petitioner was brought over to the work charged establishment to the post of Khalasi on 02.09.1993 vide Office Order No.1954 dated 01.09.1993 of the Executive Engineer, Head Works Division, Samal (Angul). Thereafter, the Petitioner has retired from service w.e.f. 31.07.2023 on attaining the age of superannuation. Now he Petitioner has approached this Court challenging the order dated 08.09.2023 under Annexure-5 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.10391 of 2023. This Court disposed of the said writ petition vide order dated 12.04.2023 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 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 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-8 series of the writ petition. So far the present Petitioner is concerned, his representation was considered pursuant to the order dated 12.04.2023 passed by this Court in W.P.(C) No.10391 of 2023, however the same has been rejected vide order dated 08.09.2023 under Annexure-5 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 08.09.2023 under Annexure-5 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 12.04.2023 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 Sarbeswar Bhujabal. The impugned rejection order further reveals that since the Petitioner was a Work Charged Mate, 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 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.25368/WR dated 08.09.2023 under Annexure-5 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.

9. With the aforesaid observation and direction, the writ petition is disposed of.

( A.K. Mohapatra)

Judge RKS

Location: High Court of Orissa