Sarbeswar Swain vs State Of Odisha And Others ..... ...
2025 Latest Caselaw 6581 Ori

Orissa High Court

Sarbeswar Swain vs State Of Odisha And Others ..... ... on 3 April, 2025

Author: Aditya Kumar Mohapatra

Bench: Aditya Kumar Mohapatra

                      IN THE HIGH COURT OF ORISSA AT CUTTACK

                                      WP(C) No.9159 of 2025

                 Sarbeswar Swain                          .....                Petitioner
                                                                  Represented By Adv. -
                                                                  Prafulla Kumar
                                                                  Mohapatra

                                               -versus-

                 State Of Odisha and others           .....            Opposite Parties
                                                                  Mr. U.C. Jena, ASC

                                                                  Mr. S.K. Patra, Standing
                                                                  Counsel for A.G.


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

                                               ORDER

03.04.2025 Order No.

01. 1. This matter is taken up through Hybrid mode.

2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel appearing for the State-Opposite Parties and Mr. S.K. Patra, learned Standing Counsel for Accountant General (A&E), Odisha. 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 grant pension and pensionary benefits by treating him as regular employee taking into consideration his initial appointment 05.05.1970 as has been given to similarly situated persons viz- Narusu Pradhan, Chandra Nandi, Sarbeswar Bhujabal, Pitambar Sahoo, Chaitanya Gouda and other, Duryodhan Mohanty & others, Banka Bihari Panda & others in the light of the decision in the case of Narusu Pradhan O.A. No. 1189(c)/2006, which has been confirmed in W.P.(C) No. 5377 of 2010, vide order dt. 19.12.2011 and SLP in Civil Appeal No. 22498 of 2012, vide order dt. 07.01.2013, 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 dt. 06.05.2022 in SLP(c) No. 21180/2021, State of Odisha vrs.

Sarbeswar Bhujabal W.P.(c) No. 7680/2019, vide order dt.15.11.2019, which has been confirmed in SLP(C)No. 7541/2020 vide order dt. 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 Diary No. 30806/2018, Duryodhan Mohanty & others v. state of Odisha (O.A. No. 70(B) of 1997, which has been affirmed in OJC No. 13552 of 1999 and Banka Bihari Panda v. State of Odisha & others (O.A.No. 469/2012, which has been affirmed in W.P.(C) No. 17869 of 2016 and SLPO Diary No.39926/2017 and State of Orissa and others vrs. Jyostna Rani Patnaik and others, W.P.(C) No. 1534/2008 and thereby quashing the order dated 27.09.2021 vide Annexure-6;

ii) Pass such other order/direction(s) as would be deem fit and proper in the bonafide interest of Justice;"

4. Learned counsel for the Petitioner submitted that the present Petitioner was initially engaged as Helper on 05.05.1970. While

working as such, the present Petitioner was promoted to the post of Welder under work charged establishment on 05.05.1973 vide Office Order No.05 dated 12.05.1973 of the Executive Engineer, Angul Irrigation Division, Angul. Thereafter, the Petitioner has retrenched from service w.e.f. 31.07.2001 on attaining the age of 55 years and the total service rendered by him comes to 31 years. Now the Petitioner has approached this Court challenging the order dated 27.09.2021 under Annexure-6 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.2075 of 2020. This Court disposed of the said writ petition vide order dated 22.01.2020 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 O.A. No.927 (C)/2008 and in the case of 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, and Narusu Pradhan, 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 22.01.2020 passed by this Court in W.P.(C) No.2075 of 2020, however the same has been rejected vide order dated 27.09.2021 under Annexure-6 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 27.09.2021 under Annexure-6 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 22.01.2020 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 Employee, 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 on the basis of total period of service under work charged estt. 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 belong 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.24587/WR dated 27.09.2021 under Annexure-6 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 work charged 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 and Narusu Pradhan have 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.

                                                      ( Aditya Kumar Mohapatra)
                                                                 Judge
S.K. Rout






            Signed by: SANTANU KUMAR ROUT                                    Page 6 of 6.

            Location: High Court of Orissa, Cuttack
            Date: 04-Apr-2025 16:21:29