Orissa High Court
Kuni Nayak vs State Of Odisha And Others ..... ... on 27 January, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.2075 of 2025
Kuni Nayak ..... Petitioner
Mr. M.K. Mishra, Senior Adv.
Along with Mr. P.K. Patnaik, Adv.
-versus-
State Of Odisha and others ..... Opposite Parties
Mr. A. Pati, ASC
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
27.01.2025
Order No.
01. 1. This matter is taken up through Hybrid mode.
2. Heard Mr. M.K. Mishra, learned Senior Counsel along with
Mr. P.K. Patnaik, learned counsel appearing for the Petitioner as
well as learned Additional Standing Counsel appearing for the
State-Opposite Parties. Perused the writ petition as well as the
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
issue Rule Nisi calling upon the Opp. Parties
to show cause as to why appropriate writ/writs
shall not be issued for directing the Opp.
Parties to regularize the services of the
deceased employee with effect from his initial
date of engagement for the purpose of pension
and pensionary benefits and give the petitioner
arrear pension family pension and other
pensionary benefits treating the entire period
of service of the deceased employee as regular
employees and on perusal of causes shown if
any or upon insufficient causes shown make
the said rule absolute and may pass such other
order/orders as deemed just and proper."
4. It is submitted by Mr. M.K. Mishra, learned Senior Counsel
appearing for the Petitioner that the Petitioner is the L.R. of the
deceased employee. He further contended that initially the Petitioner
was appointed on DLR basis on 01.06.1982. Thereafter, the
Petitioner was brought over to the work charged establishment w.e.f.
26.02.2011. While working in the work charged establishment, the
Petitioner on attaining the age of superannuation has retired from
service. Learned Senior Counsel for the Petitioner further contended
that although the Petitioner has retired from service, he has not been
extended any pensionary benefits as has been done in case of many
similarly situated persons.
5. Referring to the case of one Pradip Kumar Panigrahi v. State
of Odisha and others (W.P.(C) No.38771 of 2020 decided on
03.02.2021 and 30.01.2023 respectively), learned Senior Counsel
appearing for the Petitioner contended that an identical issue was
involved in the aforesaid writ petition. In case of above noted Pradip
Kumar Panigrahi, the Petitioner initially approached the State
Administrative Tribunal by filing O.A. No.1393 of 2009, which was
disposed of vide order dated 12.04.2019. Being aggrieved the order
passed by the Tribunal, the Petitioner, namely, Pradip Kumar
Panigrahi approached this Court by filing W.P.(C) No.38771 of
2020. A Division Bench of this Court after hearing the counsels
appearing for the parties disposed of the said writ petition vide order
dated 03.02.2021 by passing a speaking order. While disposing of
the writ petition, the Hon'ble Division Bench has specifically
observed that the Petitioner should be treated to have been
regularized in service at least one day prior to superannuation, by
creating supernumerary post, if necessary and accordingly, he shall
be extended with the pensionary benefits as would be admissible to
him and that the entire exercise was directed to be concluded within
a period of two months form the date of communication of a copy of
that order.
6. In course of his argument, learned Senior
Counsel appearing for the Petitioner further contended that the order
passed by the Division Bench of this Court in the above noted
W.P.(C) No.38771 of 2020 was assailed before the Hon'ble
Supreme Court by filing an appeal bearing Special Leave Petition
(Civil) Diary No(s).50364 of 2023. The Hon'ble Supreme Court
vide order dated 02.01.2024 was pleased to dismiss the SLP
preferred by the State-Opposite Parties with a specific observation in
para-3 that the relief granted by this Court is justified in law as well
as equity. Referring to the aforesaid judgment in Pradip Kumar
Panigrahi's case (supra), which has been confirmed by the Hon'ble
Supreme Court, learned Senior Counsel appearing for the Petitioner
submitted that the case of the Petitioner is squarely covered by the
principle involved in the above noted judgment and, accordingly, the
case of the Petitioner should also be considered in the light of the
aforesaid principle.
7. Learned Additional Standing Counsel appearing for the State-
Opposite Parties, on the other hand, contended that the Petitioner
was initially appointed on DLR basis and thereafter he was brought
over to the work charged establishment. However, the Petitioner was
never regularized in service before his superannuation. In such view
of the matter, learned Additional Standing Counsel submitted that
since the Petitioner was not a regular employee by the time he was
superannuated from service, he is not entitled to any pensionary
benefits. It was also contended by the learned Additional Standing
Counsel that since the Petitioner is not a regular Government
employee, he would not be covered under the OCS (Pension) Rules,
1992. It was also contended that there is a specific bar in the OCS
(Pension) Rules, 1992 with regard to coverage of the DLR
employees under the aforesaid rules. With regard to the order passed
by this Court in Pradip Kumar Panigrahi' case (supra), which was
eventually confirmed by the Hon'ble Supreme Court, learned
Additional Standing Counsel submitted that while disposing the
State Appeal, the Hon'ble Supreme Court has finally observed that
the question of law is kept open to be decided in appropriate case. In
such view of the matter, learned Additional Standing Counsel
submitted that the question of law which is the larger issue is
required to be finally adjudicated and the same has not been
adjudicated by the Hon'ble Apex Court. On such ground, learned
Additional Standing Counsel submitted that the Petitioner is not
entitled to any pensionary benefits flowing from the OCS (Pension)
Rules, 1992 as the DLR employees as well as the work charged
employees are not covered under the aforesaid pension rules.
Accordingly, it is submitted that the writ petition of the Petitioner is
devoid of merit and, as such, the same should be dismissed at the
threshold.
8. Having heard the learned counsels appearing for the
respective parties and on a careful examination of the contentions
raised by the learned counsels appearing for the respective parties
and further on a careful examination of the background facts as well
as the materials on record, this Court observes that initially the
Petitioner was engaged on DLR basis in the year 1982 and thereafter
he was brought over to the work charged establishment only in the
year 2011. Before Petitioner retired from service on attaining the
age of superannuation, his services could not be regularized in the
regular establishment. Thus, the Petitioner after working
continuously for more than three decades has not been treated as
regular employee and, as such, he has not been paid the pensionry
benefits as is due and admissible to such employees. In the aforesaid
context, this Court examined the order passed by a Division Bench
of this Court in Pradip Kumar Panigrahi' case (supra). On a careful
consideration of the said order passed by this Division Bench of this
Court, this Court found that the factual background of the aforesaid
case is almost identical to the facts of the Petitioner's case.
Moreover, this Court in many similar cases had taken on identical
view as has been taken by the Division Bench in Pradip Kumar
Panigrahi' case (supra). It would also be gainful to refer to the
judgment in State of Orissa v. Narusu Pradhan (W.P.(C) No.5377
of 2010) wherein the order passed by this Court directing one day
regularization before retirement of employee and to grant pensionary
benefit on the basis of such regularization has already been upheld
by the Hon'ble Supreme Court. On perusal of the materials on
record, it appears that the Petitioner has already approached the
Opposite Party No.3-The Engineer-in-Chief (Civil), Bhubaneswar
by filing a detailed representation on 25.09.2024 under Annexure-5
to the writ petition. Learned Senior Counsel appearing for the
Petitioner further contended that no decision has been taken on such
representation of the Petitioner.
9. Taking into consideration the factual background of the case
and keeping in view the position of law as has been analysed
hereinabove, this Court deems it proper to dispose of the writ
petition at the stage of admission by directing the Opposite Party
No.3 to consider the representation of the Petitioner under
Annexure-5 within two months from the date of communication of a
certified copy of this order by the Petitioner. Further, the Opposite
Party No.3 shall do well to consider the representation of the
Petitioner in terms of the analysis made hereinabove as well as in
terms of the order passed by the Division Bench of this Court in
Pradip Kumar Panigrahi' case (supra) and the representation of the
Petitioner shall be disposed of by passing a speaking and reasoned
order within the aforesaid time stipulation. In the event it is found by
the Opposite Party No.3 that the Petitioner's case is similar to that of
Pradip Kumar Panigrahi' case (supra) and in the absence of any
legal impediment, the Opposite Party No.3 shall do well to sanction
and grant the pensionary benefits in favour of the Petitioner within a
period of six weeks from the date of taking such decision as has
been directed hereinabove. The final decision so taken on such
representation shall be communicated to the Petitioner within two
weeks from the date of taking such decision.
10. With the aforesaid observation and direction, the writ petition
is disposed of.
( Aditya Kumar Mohapatra )
Judge
S.K. Rout
Location: High Court of Orissa, Cuttack
Date: 29-Jan-2025 10:16:15 Page 6 of 6.
