Orissa High Court
Biswaranjan Mohapatra vs State Of Odisha And Others .... Opposite ... on 8 November, 2024
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.10882 of 2023
Biswaranjan Mohapatra .... Petitioner
Mr. Budhadev Routray, Sr. Advocate
along with
Mr. Pradipta Kishore Bhuyan, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Deba Ranjan Mohapatra, AGA
CORAM:
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
Order No. ORDER
04. 08.11.2024
This matter is taken up through Hybrid Mode.
2. Challenging the order dated 13.02.2023 under Annexure-4
passed by the opposite party No.1-Government of Odisha in
Housing and Urban Development Department, wherein and
whereby the representation of the petitioner with a prayer to issue
relieve order on acceptance of his voluntary retirement has been
rejected, pursuant to the direction of this Court vide order dated
29.11.2022 passed in W.P.(C) No.25381 of 2022, the petitioner
has approached this Court by filing this writ petition craving to
invoke extraordinary jurisdiction under Articles 226 & 227 of the
Constitution of India with the following prayer(s):-
"Therefore, in view of the aforesaid facts and circumstances, it is
most humbly prayed that, the Hon'ble Court may graciously be
pleased to;
Page 1 of 27
I. Quash the order vide Annexure-4 passed on dt.13.02.2023
and direct the opp. party No.1 to issue the relieve order in
favour of the petitioner within a time frame fixed by this
Hon'ble Court.
II. And/or pass any such appropriate writ/writs, order/orders,
relief/reliefs, direction/directions which would be deemed fit
and proper in the ends of justice.
And for this act of kindness, the Petitioner shall as in duty
bound ever pray."
3. Facts as adumbrated in the writ petition reveal that after
working for more than 20 years as Laboratory Assistant in the
Public Health Engineering Organization under the Housing &
Urban Development Department, the petitioner, having decided to
retire voluntarily in terms of Rule 42 of the Odisha Civil Services
(Pension) Rules, 1992, filed an application on 21.12.2012 before
the Superintending Engineer, Public Health Circle, Bhubaneswar-
opposite party no.4.
3.1. The Government on consideration of his representation
refused to accept the prayer for voluntary retirement on the plea
that number of Court cases are pending against the petitioner
before this Court and the learned Odisha Administrative Tribunal,
Cuttack and Bhubaneswar Bench.
3.2. Six years thereafter, vide Office Order No.742 dated
09.02.2018 under Annexure-2 the opposite party No.4 accepted
the voluntary retirement of the petitioner with retrospective effect
from 20.03.2013 pursuant to the order dated 18.05.2017 of the
learned Odisha Administrative Tribunal, Bhubaneswar passed in
Page 2 of 27
O.A. No.2321 of 2015 and order dated 09.11.2017 of this Court
passed in W.P.(C) No.21839 of 2017. For better appreciation, the
said order is quoted hereunder:
"Office of the Superintending Engineer,
Public Health Circle: Unit-V, Bhubaneswar
Office Order No.742 Dated. 09.02.2018
The voluntary retirement of Sri Biswaranjan Mohapatra,
Laboratory Assistant is hereby accepted with effect from
20.03.2013 A.N. as per order dt.18.05.2017 of Hon'ble O.A.T.
Bhubaneswar passed in O.A. No.2321/2015 & orders of Hon'ble
High Court Orissa dated 09.11.2017 passed in W.P.(C) No.21839
of 2017.
Sd/-
(Er. C.R. Jena)
Superintending Engineer
P.H. Circle, Bhubaneswar."
3.3. Though application for voluntary retirement has been
accepted belatedly, no relieve order was issued in favour of the
petitioner. Persistent approach to the authority went in vain; as a
consequence thereof, the petitioner was constrained to come up
before this Court by way of filing writ petition, giving rise to
registration of W.P.(C) No.25381 of 2022, which came to be
disposed of vide order dated 29.11.2022 with the following
observation:
"3. The present writ petition has been filed by the petitioner
with a prayer for a direction to the Opposite Parties to issue the
relieve order in favour of the petitioner after acceptance of
voluntary retirement of the petitioner at the earliest. Further, it
has been prayed to impose exemplary punishment for not issuing
Page 3 of 27
of relieve order of the petitioner. The petitioner has also prayed
for a direction to the Opposite Parties to relieve the petitioner
from Government service after acceptance of voluntary retirement
communicated vide letter dated 09.02.2018.
4. It is submitted by learned counsel for the petitioner that the
petitioner was working as a Laboratory Technician till he became
eligible to avail benefit of voluntary retirement. Learned counsel
for the petitioner further submits that although the application of
the petitioner for voluntary retirement was submitted on
21.12.2012, however, the same was not accepted by Opposite
Party No.3, the appointing authority, and the voluntary retirement
application was kept pending for a long time. Thereafter, the
petitioner approached the Odisha Administrative Tribunal,
Cuttack Bench by filing O.A. No.1499 of 2014, which was
subsequently transferred to Bhubaneswar Bench and renumbered
as O.A. No.2321 of 2015. Ultimately, the OAT adjudicated the
O.A. filed by the petitioner and disposed of the same and directed
the opposite parties to consider the prayer of the petitioner and
treat the period of service of the petitioner from 01.07.2010 to
20.03.2013as qualifying service vide order dated 18.05.2017.
Thereafter the order passed by the Tribunal challenged before this
court. This court finally disposed of the matter and the order
passed by the Tribunal was confirmed finally dispute was set at
rest by the order passed by this Court and the writ petition
preferred by the State was dismissed. Finally, voluntary
retirement application was accepted vide order No.742 dated
09.02.2018 with retrospective effect from 20.03.2013 A.N.
5. It is further submitted by learned counsel for the petitioner
that despite acceptance of the voluntary retirement, the
authorities have not issued relive order. He further submits that
due to inaction of the opposite parties, the petitioner has not
received the retiral dues and pensionary benefits as due and
admissible. Being aggrieved by such action, the petitioner
approached the Opposite Party Nos.1 and 3 by filing
Page 4 of 27
representation dated 31.12.2019 under Annexure-3. It is stated by
learned counsel for the petitioner that no decision has been taken
on such representation as of now. On an earlier occasion, the
petitioner approached this Court by filing a writ petition bearing
W.P.(C) No.15632 of 2020 and this Court disposed of the matter
at the stage of admission by directing the opposite parties to
consider the representation of the petitioner relating to relieve
order vide Annexure-10 of the writ petition. It is further stated
that although the order of this Court was received by the opposite
parties, however, till date no relieve order has been issued in
favour of the petitioner which compelled the petitioner to file a
Contempt Petition No.5418 of 2020, which was also disposed of by
this court directing the authorities to carry out the direction of this
court in writ Petition bearing W.P.(C) No.15632 of 2020 within
one month. Thereafter the order was not carried out which again
compelled the petitioner to file 2nd Contempt Petition vide CONTC
No.2481 of 2021 for giving effect to the order passed by this Court
in W.P.(C) No.15632 of 2020. It is further submitted that 2nd
Contempt Petition was also disposed of on an erroneous
contention considering the order dated 17.06.2021, which was
produced by learned counsel for the State before this Court on
21.09.2022. Taking such order into consideration, this Court
disposed of the Contempt Petition by observing that the
representation of the petitioner under Annexure-10 has already
been disposed of and the contempt proceeding was dropped.
***
12. Having heard leaned counsel for the parties and upon
careful consideration of the materials placed before this Court,
this Court observes that the voluntary retirement of the petitioner
has already been accepted by the authorities vide their letter
No.742 dated 09.02.2018 with retrospective effect i.e. from
20.03.2013 pursuant to the orders passed by Tribunal as well as
this Court. With regard to sanction and disbursement of retiral
dues and pensionary benefits, from the letter of the Opposite Party
No.1 dated 17.06.2021 under Annexure-7, it appears that some of
the benefits have already been given to the petitioner. However,
pensionary benefit has not yet been calculated and paid to the
petitioner.
13. At this juncture, learned counsel for the petitioner
emphatically submits that once voluntary retirement was accepted
by the Opposite Parties, they are duty bound to issue relieve
order. However, in the case of the petitioner, the Opposite Parties
have not issued any relieve order specifying the date from which
the petitioner was relieved from duty. In the said context, learned
counsel for the petitioner relied upon a judgment of the Hon'ble
Supreme Court in the case of Power Finance Corporation Ltd. vrs.
Pramod Kumar Bhatia, reported in (1997) 4 SCC 280 and
Shambhu Murari Sinha vrs. Project and Development India Ltd.
and others: reported in (2002) 3 SCC 437. He also relies up a
couple of judgments of this Court i.e. Ajit Kumar Das vrs. State of
Orissa and others : reported in 2008 (Supplementary) Vol-I, OLR-
697 and in the case of Satyanarayan Pattanaik, vrs. M.D., Orissa
Handloom Weavers Cooperative Society Ltd. and others :
reported in 2010 (II) ILR-CUT 726. It is further stated by learned
counsel for the petitioner that issuance of relieve order is very
much essential for the petitioner and issued to the Opposite
Parties to send a copy of the relieve order which would enable him
to receive other financial benefits.
14. In reply to such submissions, leaned counsel for the State
submits that issuance of relieve order is not necessary and the
same is not supported by any letter and that the petitioner has filed
a representation stating therein for issuance of relieve order and
the same is pending before the Superintending Engineer, Public
Health Circle, Bhubaneswar (Opposite Party No.3), which is
annexed to the writ petition at Annexure-3 dated 31.12.2019.
However, on perusal Annexure-3 dated 31.12.2019, this court
observes that the petitioner has not elaborated and put forth the
point and be directed to decide in the present lease.
15. In view of the aforesaid analysis and keeping in view the
factual background of the present case and submissions made by
learned counsel for the petitioner that this Court deems it proper
to dispose of the writ petition, at the stage of admission, by
directing the petitioner to file a fresh representation taking all
the grounds along with supporting documents and judgments
relied upon in support of his contention within a period of two
weeks from today. In the event, such representation is filed, the
Opposite Party No.1 is directed to decide the same in the light of
the judgments referred to by the petitioner and the representation
of the petitioner shall be disposed of in accordance with law
within a period of six weeks from the date of filing of such
representation by passing speaking and reasoned order. Any
decision taken on the same shall be communicated to the
Petitioner within a period of two week thereafter.
16. With the aforesaid observation/direction, the writ petition
stands disposed of."
3.4. While rejecting the representation, the opposite party No.1
passed the following order on 13.02.2023:
"***
The petitioner in aforesaid writ petition has requested to issue the
relieve order in favour of him after acceptance of his voluntary
retirement as communicated vide Letter dated 09.02.2018. In
pursuance to Order Dt.29.11.2022 of Hon'ble High Court passed
in aforesaid writ petition. The petitioner has submitted a
representation to OP No.1, i.e., Principal Secretary to
Government, H&UD Department on 22.12.2022 stating therein
that after communication of acceptance of his voluntary
retirement, no relieve order has been issued as on date. Due to
non-issuance of relieve order he is unable to know the effective
date of his disengagement from Government Service. The
petitioner cited the views and judgments delivered by the Hon'ble
Apex Court and Hon'ble High Court of Orissa in the case of
Power Finance Corporation Ltd. Vrs. Promod Kumar Bhatia,
reported in (1997) 4 SCC 280, Ajit Kumar Das Vrs. State of
Odisha & others, reported in 2008 (supplementary) Vol-1, OLR-
697 and Sambhu Murari Sinha Vs. Project and Development India
Ltd. And others, reported in (2002) 3 SCC 437 and has prayed to
issue him a relieve order as the same has not been provided to him
after acceptance of voluntary retirement.
The judgments referred by the petitioner are in the context of
disputes involving offer of voluntary retirement scheme in respect
of employees working in certain Private Sector/Public
Corporation where the services of employees are not controlled by
condition of service or the statutory provisions. The petitioner was
Government employee. His service is well protected and governed
by statutory rules. He has not cited any specific violation of
Statutory Rules wherein a relieve order in a format is issued
against any such voluntary retirement. He has not cited the
respective statutory rule under which he is claiming a relieve
order after acceptance of his voluntary retirement and that too on
case filed by the petitioner while Hon'ble Court have ordered to
accept his retirement w.e.f. 20.03.2013 (AN) on completion of 3
months prior notice; and while his VR case has been duly
intimated to him vide Office Order No.742, dtd.09.02.2018 in
complying the order of Hon'ble Court's order, the petitioner's
representation is vexatious & dilatory with an ill motive to
continue litigation, even though in pursuance of Hon'ble High
Court's order it has been already disposed of.
Thus, the voluntary retirement application was accepted vide SE,
PH Office order No.742, dtd.09.02.2018 with retrospective effect
i.e., with effect from 20.03.2013 (A.N.). The petitioner in the
meantime has already received retiral benefits w.e.f. 20.03.2013
as per the O.C.S. (Pension) Rules, 1992. As per practice in
Government offices, in case of retirement on attaining the age of
superannuation, a retirement Notification indicating date of
retirement is issued before the date of retirement and in case of
voluntary retirement an office order indicating the date from
which voluntary retirement is accepted is issued. There is no such
provision either in Odisha Service Code or in OCS (Pension)
Rules to issue a relieve order to the employees retiring from
service.
Under the above background, since, the voluntary retirement of
the petitioner was accepted w.e.f. 20.03.2013 (A.N.), the date
20.03.2013 is the last working day of his service under
Government. His effective date of disengagement from
Government service starts from 20.03.2013 (A.N.). There is no
provision to issue any relieve order as represented by the
petitioner. Hence, the representation of the petitioner to issue
him a relief order after acceptance of his voluntary retirement
has no merit for consideration.
A copy of this order be sent to the petitioners, Sri Biswaranjan
Mohapatra through Superintending Engineer, PH Division
Sahidnagar, Bhubaneswar"
4. Sri Budhadev Routray, learned Senior Advocate assisted by
Mr. Pradipta Kishore Bhuyan, learned Advocate for the petitioner
submitted that for the reason best known to the opposite party
No.1-Principal Secretary to Government of Odisha in Housing and
Urban Development Department is hell-bent to embarrass the
petitioner and adopting hyper-technical approach rejected the
representation of the petitioner. He submitted that as the
Department after accepting retirement under Rule 42 of the Odisha
Civil Services (Pension) Rules, has not issued relieve order, the
petitioner is unable to get any engagement in different
organisations as the same is a requisite document.
4.1. He has drawn attention of this Court to documents enclosed
at Annexure-5 series of the writ petition, wherein under the similar
set of circumstances, employees allowed to retire voluntarily from
the Government service have been granted with relieve order
along with acceptance of voluntary retirement.
4.2. He has placed reliance on the decisions of the Hon'ble
Supreme Court of India in the cases of Confederation of Ex-
Servicemen Association and others Vs. Union of India and others,
(2006) 8 SCC 399 and Union of India and others Vs. Alok Kumar,
(2010) 5SCC 349. Therefore, he, in essence, submitted that the
practice adopted by the Departments of the Government for a
considerable length of period in absence of provision of statute
should not have been given go-bye and the opposite party no.1
could not deprive the petitioner of the benefits as that are extended
to the similarly circumstanced employees.
4.3. Learned Senior Advocate appearing for the petitioner urged
that the relieve order is required for future employment/
engagement and due to non-issue of such relieve order, the
petitioner could not enjoy the prospective engagements for which
he has applied for or would apply for self and his family for
sustenance and livelihood.
4.4. He expanded his argument by referring to documents at
Annexure-8 series, which evince that for taking up candidature of
the petitioner such relieve order was required to be furnished to
the employer like the Gayatri Institute of Computer &
Management Studies, the Indian Management & Technical
Society, Raajdhani Engineering College and the Sailabala
Memorial I.T.C.
4.5. Valiant attempt has been made by advancing argument that
for the supine response to the petitioner's repeated requests for
issue of relieve order indicates a clear disregard for the procedural
requirements and lackadaisical approach taken by the opposite
parties in issuing the said document resulted in significant damage
to the petitioner. It is strenuously contended that the Housing and
Urban Development Department having accepted the voluntary
retirement of the petitioner with effect from 20.03.2013, has no
authority to withhold the relieve order.
5. Per contra, Mr. Deba Ranjan Mohapatra, learned Additional
Government Advocate appearing for the State-opposite parties to
refute the arguments advanced and submissions made by the
learned Senior Advocate appearing for the petitioner referred to
para-8 of the counter affidavit, which runs as follows:
"8. That, in reply to the averment made in the Para No.8 of the
writ petition, it is humbly submitted that, the matter and situation
in the petitioners request for issuance of a relieve order in his
favour, with retrospective effect is not sustainable in the eye of law
in absence of any specific provision. Besides, it has already been
stated earlier that; the petitioner was not attending his duty and
also no duty place/work was allotted to the petitioner at the time
when his retirement was accepted. No charge was also given to
him. Only in pursuant to the courts' orders, his VR was accepted
at a belated date. So, relieve order from his duty was not issued to
him in absence of specific provision. Relieve orders of different
Government servants, annexed by the petitioner under
Annexure-5 series of the Writ Petition, none of them found
similarly situated case to the case of the present petitioner.
Hence, such claim is liable to be rejected."
5.1. The learned Additional Government Advocate submitted
that there being no rule or provisions in the statute which
mandates issue of such relieve order. The acceptance of the
voluntary order would suffice compliance under law.
6. This Court having perused the record and diligently
considered the submissions made by the learned Advocate for both
the sides, finds peculiarity in the counter affidavit as quoted above
to the effect that none of the Government servants granted relieve
orders on acceptance of voluntary retirement, were found similarly
situated with that of the petitioner. Such a stance of the opposite
parties is fallacious. Such a statement on affidavit by the
Government is a manifestation of an insensitive attitude towards
the petitioner.
6.1. At this juncture, it may be fruitful to quote the contents as
reflected in the Office Orders granting orders of relief from duties
while allowing the employees to retire from Government Service
voluntarily:
"Directorate of Local Fund Audit, Odisha
Treasury and Accounts Bhawan, Unit-III
Kharavel Nagar, Bhubaneswar
Ph.(0674)2391704, e-mail [email protected]
***
No.961/DLFA-Estt-II-I-54/2015, Date-09.02.2021
Office Order
The application of Sri Jatin Kumar Naik, Auditor, Office of the District Audit
Officer, Local Fund Audit, Keonjhar for voluntary retirement from Govt.
Service is hereby accepted w.e.f. 31.03.2021 A.N. in terms of Rule 42 of
O.C.S. (Pension) Rules, 1992.
Accordingly, Sri Jatin Kumar Naik is allowed to retire from Govt. Service
voluntarily and he is relieved of his duties w.e.f. 31.03.2021 A.N.
Sd/-
Director"
***
Government of Odisha
Works Department
***
Order
Bhubaneswar, Dated the 9.4.18
No.07361400482014/5141/W., Whereas, Shri Subhendu Kumar Ray, EIC(C)
at present CMD, OB & CC Ltd, Bhubaneswar has been appointed as
Member, Odisha Public Service Commission vide Notification No.8583/GA
dt.23.03.2018 of GA & PG Department.
And Whereas, Shri Shubhendu Kumar Ray, EIC(C) has applied for voluntary
retirement from Govt. Services vide his representation dated 28.03.2018 to
take up his new assignment by relaxing the mandatory notice period of 3
months as provided under rule 42(1) of OCS (Pension) Rules, 1992.
And Whereas, Sub-Rule(1) of Rule 42 of OCS (Pension) Rules, 1992 provides
that at any time after a Government servant has completed twenty years
qualifying service, he may, by giving notice of not less than three months in
writing to the appointing authority retire from the service.
And Whereas, date of entry into Government Service of Shri Shubhendu
Kumar Ray, EIC(C) being 2007.1981 (Twentieth July Nineteen Eighty One),
Shri Ray has completed 20 (Twenty) years of qualifying service on 19.07.2001
and is therefore eligible to retire from Government service voluntarily under
Sub-rule (1) of Rule 42 of OCS (Pension) Rules, 1992.
And Whereas, as per 42(3)(a) of OCS (Pension) Rules, 1992, a Government
servant desirous of retiring under 42(1) of OCS (Pension) Rules, 1992 may
make a request in writing to the appointing authority to accept notice of
voluntary retirement of less than three months giving reason there for.
And Whereas, State Government are empowered under Rule 42(3)(b) of OCS
(Pension) Rules, 1992 to consider the curtailment of the period of notice of
three months and to relax the requirement of notice of 3 (three) months on the
condition that the Government servant shall not apply for commutation of a
part of his pension before the expiry of the period of notice of three months.
Now Therefore, the Government after careful consideration have been
pleased to accept the voluntary retirement of Shri Subhendu Kumar Ray,
EIC(C) at present CMD, OB& CC Ltd., Bhubaneswar from Government
service under Rule 42 of the O.C.S. (Pension) Rules, 1992 w.e.f. the date of
issue of the order.
By order of the Governor
Sd/-
Additional Secretary to Government."
***
"Government of Odisha
Cooperation Department
***
Office Order
No.OE.I.ESTT-0015-2017-4439/Coop., Dated-31.07.19
Shri Debananda Panigrahi, who is working as Joint Secretary in Cooperation
Department, is hereby relieved of his duties from Government Service with
effect from 31.07.2019(AN) on attaining the age of superannuation.
Sd/-
Joint Secretary to Government."
***
"Government of Odisha,
Revenue and Disaster Management Department
***
Office Order
Bhubaneswar, dated 30th August, 2022
No.RDM-OEA-PM-0017-2019/R & D.M.28650
In pursuance of G.A. & P.G. Department Letter No-22320/Gen, Dated
23.08.2021, Sri Bibhuti Bhusan Das, OAS (SS), Special Secretary, Revenue &
D.M. Department Revenue & D.M. Department is relieved of his duties with
effect from 31.08.2022 (A.N.), on attaining the age of superannuation.
Sd/-
Under Secretary to Government"
***
"Government of Odisha
Department of Women & Child Development
***
No.WCD-OE-PEN-0007-2020/14393/WCD,Date-26.08.2022
Office Order
In pursuance to Planning & Convergence Department Office Order
No.5895/P dated 11.05.2022, Sri Sridhar Sahoo, Deputy Director, W & CD
Department is hereby allowed to relieve of his duties w.e.f. 31.08.2022 (A.N.)
on attaining the age of superannuation as his date of birth is 12.08.1962 as
recorded in his Original Service Book.
By order of Commissioner-cum-Secretary.
Sd/-
Under Secretary to Government"
***
"Government of Odisha
Department of Women & Child Development
***
Office Order
No.WCD-OE-PEN-0020-2020/19245/WCD, Date:14-12-21
In pursuance of Finance Department Notification No.33483/F dt 03.12.2021,
Sri C.V. Rajsekhar, Audit Officer, Department of W & CD is allowed to
relieve of his duties w.e.f. 31.12.20121(AN) on retirement on attaining the age
of superannuation as his Date of Birth is 20.12.1961.
By order of the Principal Secretary
Sd/-
Under Secretary to Government"
***
"Government of Odisha
Revenue and Disaster Management Department
Office Order
Bhubaneswar, dated the 30th August, 2022
No.RDM-OEA-PM-0017-2019-28739/R & D.M.
Sri Keraldin Pradhan, Diary Superintendent, Revenue & D.M. Department is
allowed to retire from Government service with effect from 31.08.2022 (A.N.),
on attaining the age of superannuation.
He is also relieved of duties with effect from 31.08.2022 (A.N.) on being
retired from Government Service.
Sd/-
Under Secretary to Government"
***
"Government of Odisha
Works Department
***
Office Order
WORKS-OE-I-PER-0038-2013/5278/W., Date-27.4.2019
In pursuance of Home Department Notification No.15495/OSS/Dated
06.04.2019, Smt. Jayalaxmi Tripathy, Section Officer, Works Department is
hereby relieved of her duties w.e.f. 30.04.2019 (A.N.) so as to enable her to
retire from Government Service on attaining the age of superannuation.
Sd/-
Under Secretary to Government"
***
"Office Order
No.2149/Estt.-II- Dt.29.9.22
Consequent upon attaining the age of superannuation Sri Jhadeswar Panda,
Watchman (Work Charged) of this Office has been allowed to retire from
Govt. Service and he is hereby relieved from his duties w.e.f. Dt.30.09.2022
AN.
Sd/-
Superintending Engineer
Rural Works (PH) Division,
Bhubaneswar"
***
"Government of Odisha
Office of the Assistant Executive Engineer,
Rural Works (PH) Sub-Division, Phulbani.
Office Order No.______ Date_______
Consequent upon attaining the age of superannuation Sri Mahendra Jena,
Peon (work charged of A.E. RW (PH) Section, Phulbani has been allowed to
retire from Govt. Service and he is hereby relieved from his duties w.e.f.
31.12.2022 A.N.
Sd/-
Assistant Executive Engineer,
Rural Works (PH) Subdivision
Phulbani"
***
"Office Order No.9416/Estt.-II_/
Date.28.12.20
Sri Kalandi Charan Behera, Peon, Rural Works (PH) Sub-Division, Angul is
hereby allowed to retire from Govt. Service on attaining the age of
superannuation with effect from Dt.31.12.2020 AN.
Sd/-
Executive Engineer,
Rural Works (PH) Division,
Bhubaneswar"
***
No.1/1/EXC-EXC/SG/VRGS/2014-15/761
U.T. Administration of Daman & Diu,
Office of the Assistant Commissioner of Excise,
Excise Department, Daman
Dated:01/08/2014.
Relieving Order
With reference to order No.1/1/EST-EXC/SG/VRGS/2014-15/474 dated 28-
05-2014 received from the Deputy Secretary (Pers), Department of Personnel
& Administrative Reforms, Secretariat, Daman, Surendrakuar Goan, Upper
Division Clerk is hereby relieved by the way of Voluntary Retirement from the
Government Service and from the Office of the Assistant Commissioner of
Excise, Excise Department, Daman, w.e.f.01-08-2014 (B.N.)
Sd/-
Asstt. Commissioner of Excise, Daman."
"Government of Odisha
Housing & Urban Development Department
***
Order
No.13226/HUD-PHE-HR-0031-2022,
Bhubaneswar Dated the 29.07.2022
Whereas Sri Nilakantha Sahu, Assistant Engineer, PH Section Dasapalla
submitted representation for voluntary retirement from Government service
u/r 42 of O.C.S. (Pension) Rules, 1992.
Now, therefore, the Government after careful consideration have been
pleased to accord the proposal of E.I.C., PH, Odisha, Bhubaneswar for the
voluntary retirement of Sri Nilakantha Sahu, Assistant Engineer, PH from
Government Service u/r 42 of the O.C.S. (Pension) Rules, 1992 w.e.f.
31.07.2022 (AN).
By order of the Governor
Sd/-
Under Secretary to Govt."
***
"Office of the Superintending Engineer,
Public Health Division, Sahid Nagar, BBSR-751007
Phone/Fax-0674-2540578(O)/[email protected]
***
Office Order No-17(G) of 2022-23
In pursuance of Memo No.7690/ dt.30.07.2022 of Office of the Engineer-in-
Chief, P.H. Odisha, Bhubaneswar, Sri Nilakantha Sahoo, Assistant Engineer
(PH) is hereby relieved from his duty as Assistant Engineer, P.H. Section
Daspalla with effect from 31.07.2022 as his representation for voluntary
retirement from Govt. Service u/r 42 of O.C.S. (Pension) Rules, 1992 has
been approved by Govt. in Housing and Urban Development Department
vide Order No.13226/HUD dt.29.07.2022.
Sd/-
Superintending Engineer,
P.H. Division, Bhubaneswar"
***
"Office of the Superintending Engineer
Public Health Circle, Unit-V, Bhubaneswar
Office Order No.4168/2-1084E/92 Dated 31.08.2017
Whereas Sri Lokanath Dash, Senior Clerk of Executive Engineer, Division-
III, Bhubaneswar submitted representation Dt.23.05.2017 for voluntary
retirement from Government Service under rule 42 of O.C.S.(Pension) Rules,
1992.
Now therefore, this office after careful consideration have been pleased to
accept voluntary retirement of Sri Lokanath Dash, Senior Clerk of Executive
Engineer, P.H. Division-III, BBSR from Govt. Service under rule 42 of the
O.C.S. (Pension) Rules, 1992 with effect from the date of issue of this order.
Sd/-
Superintending Engineer,
P.H. Circle, Bhubaneswar"
***
"Office of the Executive Engineer
Public Health Divsion-III, Sahid Nagar, BBSR-751007
Phone/FAX-0674-2540578(O)/[email protected]
Office Order No.19 of 2017-18 date:31.8.17
In pursuance to the Office Order No.4168 dated 31.08.2017 of
Superintending Engineer, Public Health Circle, Bhubaneswar, Sri Lokanath
Dash, Senior Clerk of this Division is hereby relieved from his duties w.e.f.
dated 31.08.2017 A.N. on voluntary retirement from Govt. Service under
Rule42 of O.C.S. (Pension) Rules, 1992.
Sd/-
Executive Engineer,
P.H. Division-III, Bhubaneswar."
***
"P.H. Division, Balasore.
At-Sambalpur PO-Balia, Dist-Balasore, Pin-756056
[email protected]
Office Order No.88/ Date -30.06.2023
In accordance to the office order No.9064/HUD, Dated 03.05.2023 of H &
UD Department, Govt. of Odisha, Bhubaneswar Sri Prafulla Kumar Rath,
Assistant Engineer, PH Section, Dhamnagar, Bhadrak is hereby relieved from
Govt. Service on dt.30.06.2023 AN under Voluntary retirement scheme.
Sd/-
Superintending Engineer,
P.H.D., Balasore"
***
"Office of the Executive Engineer, Public Health Division, Angul
Ph#06764-230431, [email protected]
Office Order No.5917/ Dated 1.10.21
In pursuance of office order No.3596 dt.01.10.2021 of the Additional Chief
Engineer, P.H. Circle, Cuttack, Sri Gopal Bahadur, Fitter Mistry Wages
(Regular) establishment of P.H. Section, Talcher is hereby relieved form
Govt. Service as on voluntary Retirement scheme under Rule-42 of the OCS
(Pension) Rules, 1992 w.e.f. dt.30.09.2021 A.N.
Sd/-
Executive Engineer (I/c)
R.H. Division, Angul"
***
"Office Order No.752/2020-21 Dt.31.3.2021
In pursuant to the office latter number -44 of 2020-21 dt.31.03.2021 of
Superintending Engineer, P.H. Circle, Bhawanipatna and office order
No.3101 dt.31.03.21 of Executive Engineer, P.H. Division, Koraput, Sri P.
Rama Rao (P.D.) under P.H. Section, No-II, Jeypore is here by relieved from
his duty i.e on 31.03.21 A.N. after acceptance of volunteer retirement (V.R.)
invalidation ground.
Sd/-
Asst. Executive Engineer,
P.H. Sub-Division, Jeypore"
7. Cursory glance at the aforesaid office orders would indicate
that various departments of the Government of Odisha including
the Housing and Urban Development Department is in practice of
granting relieve orders simultaneously with allowing the
Government employee to retire voluntarily. Such long standing
practice in absence of any provisions of statute has been
continuing. Even Union Territory of Daman and Diu has been in
practice of issue of relieve order, copy of such office order is
placed for perusal by the writ petitioner to indicate that outside the
State of Odisha such a practice is in place. Since the voluntary
retirement of the petitioner has been allowed with retrospective
effect, there appears no impediment in allowing the petitioner
relieved from duties as the petitioner has snapped all bonds of
employer and employee relationship, except for dues like pension,
etc.
8. Sri Budhadev Routray, learned Senior Advocate appearing
for the petitioner during the course of hearing submitted
Additional Affidavit dated 07.11.2024 and referred to a document
enclosed thereto to indicate that for enrolment of as an advocate
with the Odisha State Bar Council list of documents to be
furnished along with application form (Annexure-10) requires
inter alia photocopy of testimonial of "relieve order of the
employer where you have served". He, therefore, forcefully
submitted that such a requirement is to be complied with by the
petitioner, if he would wish to take up profession. In absence of
relieve order, the petitioner would be deprived of being considered
for enrolment as advocate; thereby the authority concerned could
violate right to life and eke out livelihood. This Court on a query
in this regard received no answer from the learned Additional
Government Advocate except contending that in absence of
provisions of statute, such a demand of the petitioner is illogical.
This Court disapproves such a statement of the learned Additional
Government Advocate for the simple reason that the office orders
issued by different Departments of the Government of Odisha
stand to testify that relieve orders have been issued along with
acceptance of retirement of Government servant voluntarily.
9. Under such circumstances on examination of the documents
enclosed to the writ petition and those brought to the notice during
the course of hearing, unequivocally lead to highlight that the
relieve order on acceptance of voluntary retirement is a necessary
concomitant. It is impressed upon that even for enrolment as
Advocate after retirement, there is requirement to furnish relieve
order received from the Department concerned. Voluntary
retirement requires acceptance by the appointing authority under
Rule 42 of the Odisha Civil Services (Pension) Rules. If accepted,
the relieving order is critical to conclude the employment
relationship and entitle the individual to retirement benefits. Once
the voluntary retirement application is accepted and a relieving
order issued, it marks the cessation of the employer-employee
relationship, and all agreed benefits under the voluntary retirement
rules/scheme must be honoured.
10. It is noteworthy that one of the Office Orders as referred to
above, also contains relieve order of the Housing and Urban
Development Department, where the petitioner worked as
employee. This presupposes the procedure/method has been
adopted by the Housing and Urban Development Department as a
rule/procedure in absence of any provision. Therefore, the
negation to issue relieve order to the petitioner even though the
said Department has been granting relieve order(s) to similarly
placed employees is sheer harassment and appears to be for
extraneous consideration.
11. In the aforesaid context to demonstrate that consistency in
approach by the authority concerned in the same Government is a
requirement to exercise power, it is noteworthy to refer the
observations of the Hon'ble Supreme Court of India in the
decisions relied on by the learned Senior Advocate appearing for
the petitioner in Confederation of Ex-Servicemen Association and
others Vrs. Union of India and others, (2006) 8 SCC 399 and
Union of India and others Vrs. Alok Kumar, (2010) 5SCC 349.
11.1. The relevant portions of the said decisions as cited by the
learned Senior Advocate for the petitioner are quoted hereunder:
In Confederation of Ex-Servicemen Association and others
(supra), the following are the observations of the Hon'ble
Supreme Court of India:
"***
35. In such cases, therefore, the Court may not insist an
administrative authority to act judicially but may still insist it to
act fairly. The doctrine is based on the principle that good
administration demands observance of reasonableness and where
it has adopted a particular practice for a long time even in the
absence of a provision of law, it should adhere to such practice
without depriving its citizens of the benefit enjoyed or privileged
exercised."
In Alok Kumar (supra), the following observation finds place:
"***
66. A practice adopted for a considerable time, which is not
violative of the Constitution or otherwise bad in law or against
public policy can be termed good in law as well. It is well settled
principle of law, that practice adopted and followed in the past
and within the knowledge of the public at large, can legitimately
be treated as good practice acceptable in law. What has been part
of the general functioning of the authority concerned can safely be
adopted as good practice, particularly, when such practices are
clarificatory in nature and have been consistently implemented by
the authority concerned, unless it is in conflict with the statutory
provisions or principal document. A practice which is uniformly
applied and is in the larger public interest may introduce an
element of fairness. A good practice of the past can even provide
good guidance for the future. This accepted principle can safely
be applied to a case where the need so arises, keeping in view the
facts of that case. This view has been taken by different High
Courts and one also finds a glimpse of the same in a judgment of
this Court in Commissioner of Police Vrs. Mohd. Khaja Ali,
(2000) 9 SCC 50.
67. There can be hardly any doubt that the practice of
appointing former employees had been implemented for quite
some time in the Department. We are unable to see how this
practice is opposed to any statutory provision or even public
policy. To bar such a practice, there has to be a specific
prohibition under the statutory provisions, then alone the
argument raised on behalf of the respondents could have some
merit."
12. This Court finds force in the submissions of Sri Budhadev
Routray, learned Senior Advocate that it is the consistent practice
of the Departments of the Government of Odisha including
Housing and Urban Development Department, where the
petitioner had been working, to issue relieve order along with
order of acceptance of voluntary retirement of the Government
Servant. It is un-understandable even from explanation proffered
by the opposite party No.1 in the counter affidavit as to why they
have not adhered to such practice of issuing relieve order while
accepting voluntary retirement with retrospective effect in favour
of the petitioner even as the same Department has been in practice
of granting the same to similarly situated employees, who were
allowed to retire voluntarily. Learned Additional Government
Advocate has conceded to the fact that such a practice of grant of
relieve orders is in vogue.
12.1. This Court feels it expedient to notice that consistency in
approach of the authority is the cornerstone for effective and
efficient administration of justice.
12.2. Suffice it to take note of the following observation
contained in Vishnu Traders Vrs. State of Haryana, 1995 Supp (1)
SCC 461:
"In the matters of interlocutory orders, principle of binding
precedents cannot be said to apply. However, the need for
consistency of approach and uniformity in the exercise of judicial
discretion respecting similar causes and the desirability to
eliminate occasions for grievances of discriminatory treatment
requires that all similar matters should receive similar treatment
except where factual differences require a different treatment so
that there is assurance of consistency, uniformity, predictability
and certainty of judicial approach."
12.3. Whereas assurance of consistency, uniformity, predictability
and certainty of judicial approach, even while passing
interlocutory orders, though not binding, is the necessary
requirement for exercise of judicial discretion, the administrative
authority is no exception to it in taking decisions and the authority
is required to exercise discretion consistent with the procedure in
vogue without any tinge of discrimination.
13. Perusal of reasons ascribed for rejection of representation of
the petitioner for grant of relieve order, it is found mentioned in
the impugned order dated 13.02.2023 that the petitioner could not
establish his right to have relieve order issued which is mandated
by any statutory Rule for the aforesaid purposes. This Court is at
loss to observe that the Principal Secretary to Government of
Odisha in the Housing and Urban Development Department has
sought to digress from the consistent practice of granting relieve
orders at the time of accepting voluntary retirement of the
Government Servants not only by different Departments but also
his own Department qua the instant petitioner.
13.1. Further reason of rejection to grant relieve order is that the
petitioner has already received retirement benefit with effect from
20.03.2013 in terms of provisions of the Odisha Civil Services
(Pension) Rules, 1992 under Annnexure-2, which, in considered
view of this Court, stands to no reason, being contrary to
consistent practice of the Government of Odisha. The authority in
Government Department should not show hyper-technical
approach only to restrain the petitioner from deriving benefit on
account of such voluntary retirement. It is necessary to take
cognizance of the fact that the voluntary retirement of the
petitioner has been accepted vide Office Order No.742 dated
09.02.2018 by the opposite party No.4 with retrospective effect
from 20.03.2013 without relieve order. The petitioner has been
deprived of getting the benefit of such voluntary retirement for
more than a decade.
14. This Court observes from the documents placed on record
by the learned Senior Advocate appearing for the petitioner that
for future employment as also for enrolling as an Advocate with
the Odisha State Bar Council, such a document is considered vital.
It is surprised to note that around ten years from the date of
retirement till now has been elapsed, yet the petitioner has not
been relieved of his duties!
15. In such view of the matter, the rejection order dated
13.02.2023 under Annexure-4 passed by the Principal Secretary to
the Government of Odisha in Housing and Urban Development
Department in obedience to the order dated 29.11.2022 passed in
W.P.(C) No.25381 of 2022 held to be untenable and the same
warrants interference. It may deserve to be noted that this Court
while passing order on 29.11.2022 in W.P.(C) No.25381 of 2022
has elaborately recorded the arguments of the learned Senior
Advocate of the petitioner and also has taken note of the
documents showing relieve orders being granted to the
Government servants by the Government of Odisha in respect of
those who were allowed to retire voluntarily. Rejecting to grant
relieve order by not adhering to consistent practice of the
Departments of the Government of Odisha is liable to be
deprecated.
16. Under the aforesaid premises, this Court cannot
countenance the reasons assigned to reject the representation of
the petitioner in the impugned order dated 13.02.2023 under
Annexure-4 and is inclined to quash the said order.
17. Accordingly, the writ petition is allowed with cost assessed
at Rs.20,000/- (rupees twenty thousand only) which shall be paid
to the petitioner. This Court directs the opposite party No.1-
Principal Secretary to Government in Housing and Urban
Development Department to pass appropriate order considering
that the retirement of the petitioner has been allowed with effect
from 20.03.2013 within a period of two weeks from receipt of the
certified copy or downloaded copy of this order to be
communicated by the petitioner.
18. In the result, the writ petition stands disposed of with the
above observation and direction.
(M.S. Raman)
Judge
Laxmikant
Signed by: LAXMIKANT MOHAPATRA
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Nov-2024 17:04:49
