Orissa High Court
Bhagirathi Nayak vs State Of Odisha & Ors. ..... Opposite ... on 19 February, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.14306 of 2024
Bhagirathi Nayak ..... Petitioner
Represented By Adv. -
Pravat Kumar Nayak
-versus-
State Of Odisha & Ors. ..... Opposite Parties
Represented By Adv. -
S.Jena, A.S.C.
S.K.Patra, Standing
Counsel for A.G., Odisha
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
19.02.2025
Order No.
05. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the petitioners as well learned
Additional Standing Counsel 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 therefore pray that let this Hon'ble Court may
graciously be please to allow this prays before this Hon'ble
Court be pleased to;
i. The writ petition is allowed.
ii. Issue Rule NISI, asking the opp-parties to show
cause as to why they shall not be directed to
grant minimum pension in favour of the
petitioners by adding so much of period of
service from G.P Secretary with their regular
service of VLW and release the pension and
pensionary benefits along with 18% interest
and all Consequential benefits in accordance
with the ration decided vide Annexure-6 & 7
and decision reported in SLP No 28065/2019
on 27.11.2019 within a stipulated period.
iii. And pass any other any order/orders, direction
/ directions be passed granting complete relief
to the petitioner."
4. The factual background leading to the filing of the present writ
application is that the petitioner was initially appointed as a Gram
Panchayat Secretary on 01.11.1975 with a consolidated pay of
Rs.35/- in Miteipur Gram Panchayat. Thereafter, the Government in
Panchayati Raj Department vide resolution order No.4947
dt.7.2.2009 and 17422 dt.20.5.2009 raised the scale of pay 5200-
20,200/-. The total expenses on such enhanced remuneration to the
Gram Panchayat Secretary were bone by the Government, by the
contingency fund. Therefore, it has been alleged in the writ
application that the petitioner was getting his salary/remuneration
from the State Government.
5. While continuing as Gram Panchayat Secretary the petitioner
was promoted to the post of Village Labour Worker (VLW) vide
order No.275 dated 30.05.2009 by the Collector, Puri and such the
petitioner joined in Astarang Block as a VLW on 30.05.2009 and
continued till 2.2.2016. It has also been stated in the writ application
that as a VLW petitioner has rendered 14 years 03 month and 02 days
of service and prior to their promotion to the post of VLW, the
petitioner has rendered service as a Gram Panchayat Secretary for 34
years 06 months. It has also been accepted in the writ application that
the post of VLW is a civil past and as such the same is a pensionable
service. Accordingly, it has been prayed in the writ application that
the petitioner be paid the proportionate pensionary benefits taking
into consideration the length of service rendered by the petitioner as a
VLW in the pensionable establishment.
6. Learned counsel for the petitioner in course of his argument
submitted that the petitioner has rendered more than 7 years of
service as a VLW. He further contended that by taking the shortfall
period from his service rendered as Gram Panchayat Secretary the
entire service period of the petitioner can be rounded off to 38 years
whereafter the petitioner is entitled to get full pensionary benefits
which is to be calculated on the basis of last pay drawn by the
petitioner as a VLW. In course of his argument learned counsel for
the petitioner referred to the judgments of this Court in State of
Orissa and others V. Niranjan Biswal in W.P.(C) No.6267 of 2018
decided on 30.08.2018. He also contended that a Division Bench of
this Court in Niranjan Biswal's case (supra) has upheld the judgment
of the learned OAT, wherein the learned OAT has directed for grant
of minimum pension to VLW who had worked for less than 10 years
and as such his service was not pensionable. The learned Tribunal
had also directed to calculate to pay minimum pension to the
petitioner in Niranjan Biswal's case (supra) by adjusting the
shortfall period from the pensionable service, from the service as
Gram Panchayat Secretary. Distinguishing the case of the present
petitioner learned counsel for the petitioner submitted that the
petitioner in the present case have served as a VLW for more than 7
years on being duly promoted to such post by the Collector-cum-
District Magistrate vide order dated 20.05.2009. He also referred to
the judgments of this Court in (Settlement class-IV job contract
Employees Union, Balasore-Mayurbhanj District v. State of Orissa
and others) decided on 24.03.1992 in OJC No.2147 of 1991. The
order of this Court has been upheld by the Hon'ble Supreme Court in
SLP No.28065 of 2019 by dismissing such SLP vide order dated
18.05.2022. In a similar case this Court in W.P.(C) No.39138 of 2021
vide order dated 15.12.2021 directed the State Opposite parties to
release the pension and pensionary benefits as well as arrear pension
in favour of the petitioner within a stipulated period of time. Copies
of the orders relied upon by the learned counsel for the petitioner has
been annexed to the writ application.
7. Similarly, learned counsel for the petitioner also referred to the
judgment a Division bench of this Court in Padmanav Barik V. State
of Odisha and others in W.P.(C) No.3987 of 2017 which was
disposed of on 19.04.2022. By referring to the aforesaid order, the
learned counsel for the petitioner submitted that in Padmanav
Barik's case this Court while following the order passed in
Nitranjan Biswal V. State of Odisha and others, which was
eventually upheld by the Hon'ble Apex Court, has directed the
Opposite Parties extend all such benefits to the petitioner as has been
done in the case of Nitranjan Biswal.
8. In course of his argument learned counsel for the petitioner
drawing attention of this Court to Rule 18 of O.C.S. Pension Rules,
1992 submitted that Rule18(2) of the aforesaid rules provides for an
exception with regard to services which are not pensionable and as
such are not eligible to get pension. In such category the work charge
establishment has been included under 18(2)(II). However, he further
contended that under Sub Rule 4 of Rule 18 further exception has
been carved out. The said rule 18(4) provides as follows: -
"Notwithstanding anything contained in
Sub-Rule (1) Government may, by general or special
order; prescribe any class of service or post which were
previously born under Work Charged establishment or
paid from contingencies to be pensionable."
9. On a careful analysis of Sub Rule 4 this Court observes that an
exception has been carved out and power has been conferred on the
State Government to grant pensionary benefit to the employees in the
work charge establishment by passing general or special orders,
thereby specifying any class or service or post.
10. Learned counsel for the petitioner further contended that in an
identical case, pursuant to direction of this Court which was
eventually upheld by the Hon'ble Apex court, the Government of
Odisha in PR and DW Department vide letter dated 31.01.2024 has
extended the benefits in favour of one Khetramohan Nayak and 21
others who are also working as VLWs. On perusal of a copy of order
dated 31.01.2024, which was produced before this Court, this Court
observes that the PR and DW Department, Government of Odisha
while considering the case of Khetramohan Nayak and 21 others
has taken note of the judgments by this Court as well as of the Apex
court, and after obtaining the views of the law department, especially
in the case involved in SLP (C) No.28065 of 2019 decided on
27.11.2019, had extended the pensionary benefits to such petitioner
subject to the condition that the petitioner who has been covered
under NPS are required to refund the employer's share for coverage
under the O.C.S. Pension Rules, 1992. Accordingly, considering the
case of Khetramohan Nayak and 21 others as a special case, the PR
and DW Department Govt. of Odisha has passed orders thereby
sanctioning grant of minimum pension in favour of such persons.
11. Learned Additional Standing Counsel referring to a Division
Bench judgment of this Court in Adwait Chandra Jena vs.
Khandahata Grama Panchayat & ors. reported on 1998 II OLR 410
submitted before this Court that the Division Bench of this Court has
categorically already that the post of G.P. Secretary is not a civil post
under the Govt. and such G.P. Secretaries are not Govt. servant. In
such view of the matter, learned A.S.C. contended that the Petitioner
is not entitled to any pensionary benefits in respect of the period for
which they have worked as G.P. Secretary on being appointed by the
respective G.P.
12. While further elaborating his argument, learned Additional
Standing Counsel referred to the judgments Hon'ble Supreme Court
in Udaya Pratap Thakur and another V. State of Bihar and others
in SLP (C) No.10653 of 2018 which was decided on 28th April,
2023 along with batch of similar other cases. Further, referring to the
aforesaid judgment learned Additional Standing Counsel submitted
that a similar ground was raised before the Hon'ble Apex court by
submitting that the entire period of service rendered as work charge
as should be considered and be counted for the purpose of fixation of
quantum of pension. Such a contention of the appellants was
specifically rejected by the Hon'ble Apex Court by saying that the
acceptance thereof would tantamount to regularizing their service
from the initial appointment as work charge. The Hon'ble Supreme
Court in the aforesaid judgment has also observed that in view of the
several judgments of the Hon'ble Supreme Court there exists a
distinction between regular employee appointed on a substantive post
and a work charge employee working under work charge
establishment and, that work charge employees are not appointed on
a substantive post. Therefore, it has been held that the services
rendered as work charge cannot be counted for the purpose of
pension/fixation of quantum of pension. While saying so the Hon'ble
Apex Court was also observed that taking into consideration the
considerable length of service as work charge employees, and
thereafter the services having been regularized, such employees
cannot be denied the pension on the ground they have not completed
the qualifying service period for pension. In view of the aforesaid
legal position learned Additional Standing Counsel submitted that the
petitioner is not entitled to any pensionary benefits as has been
claimed in the present writ application.
13. Having heard the learned counsels appearing for the respective
parties, on a careful examination on their contentions as well as on a
scrutiny of the background facts of the present case and on careful
examination of the materials on record, this Court observes that the
petitioner was initially engaged as a Gram Panchayat Secretary on
01.11.1975. After working for more than 34 years continuously as a
Gram Panchayat Secretary, the petitioner was appointed as a VLW
by order of the District Collector dated 30.05.2009. As a VLW
worker he is drawing salary from the contingency fund of the State
Government. In the post of VLW, the petitioner has worked for more
than 7 years. Therefore, the case of the petitioner cannot be simply
treated as a case of work charge employee and accordingly his claim
for pensionary benefit be brushed aside by this Court. While
considering the case of the petitioner this Court found that the
petitioner has been rendering his service for close to 38 years. In
other words, the entire service period of the petitioner has been
scarified while serving as a Gram Panchayat Secretary initially and
thereafter as a VLW. The service book which has been annexed to
the writ application Annexure-2 also reveals that the petitioner was
given promotion by the D.P.O., Puri vide order dated 12.02.2009 and
he was granted a scale of pay as would be evident from the service
book annexed to the present writ application. Furthermore, taking
into consideration the long service period of the present petitioner,
this Court is of the considered view that, the persons like the present
petitioner, cannot be thrown out by the Government and be left high
and dry. It is pertinent to mention here that it is not disputed that the
petitioner was appointed as a regular VLW by order of the Collector,
Jagatsinghpur and he was granted a scale of pay.
14. This Court has further examined the provisions contained in
rule 18(4) of the O.C.S. Pension Rules 1992. On a careful scrutiny
aforesaid provision, this Court is of the considered view of the same
has been carved as an exception to Rule 18(2) of the pension rules
which has excluded the work charge employees from its purview
Rule 18(4) which has been worded with words "notwithstanding
anything contained in sub rule 1" speaks a volume about the intention
behind having such rule in the rule book. Sub-rule 4 of rule 18
confers the power on the Government to declare any class of work
charge establishment as a special class by passing a general or special
order in respect of those employees who have been paid from the
contingency and to declare them as pensionable service. By applying
the aforesaid rules 18(4) to the fact of the present case this Court is of
the considered view that the case of the petitioner deserves to the
petitioner by the Government under the aforesaid rule 18(4) by taking
into consideration the fact that the petitioner has been rendering his
service for more than 7 years as a VLW.
15. In view of the aforesaid analysis of law, and on examination of
the factual background of the present case, this Court is of the
considered view that the case of the petitioner deserves to be
considered under Sub-rule 4 of Rule 18 by the State Government.
This Court further observes that 4 the facts that present case complies
with all the requirements as provided in sub-rule 4 of Rule 18 so as to
declare the VLW as a special class by passing general or special
order, and declaring such post to be pensionable service.
Accordingly, the Opposite party No.1 is directed to consider the case
of the petitioner under Rule 18(4) of the O.C.S. pension Rules, 1992,
keeping in view the aforesaid analysis and the factual background
and, pass a speaking and reasoned order in the case of the petitioner.
Further, it is directed that in the event Opposite party No.1 comes to
a conclusion that the petitioner satisfies all the requirements of Rule
18(4), then necessary follow-up orders, as has been provided sub
Rules, be passed by taking into consideration the entire VLW period
of service of the petitioner as pensionable service and accordingly,
the petitioner be granted all pensionary benefits as is due and
admissible as per law, within a period of three months from the date
of communication of a certified copy of this order by the petitioner.
16. With the aforesaid observation/direction, the writ petition is
disposed of.
Urgent certified copy of this order be granted on proper
application.
( A.K. Mohapatra)
Judge
Anil
Location: High Court of Orissa
