Allowed

Bata Krishna Mahanta v. State of Odisha

Orissa HC6 Aug 2024WP(C)/13259/2022

Case brief

AI extract

What is this about?

Petitioner, a Work Charged employee with over 35 years of service, sought regularization to avail pension benefits. Court granted relief directing regularization via supernumerary post within three months, following Supreme Court's discretionary order in a similar pending case.

What did the court decide?

Direct opposite parties to regularize petitioner at least one day prior to superannuation via supernumerary post and extend pensionary benefits within three months.

Bata Krishna Mahanta Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.13259 of 2022

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Bata Krishna Mahanta, aged about 59 …. Petitioner years, S/o-Late Bhaluram Mahanta, At present working as Surveyor (Work Charged), O/o the Executive Engineercum-Dy. Electrical Inspector, Keonjhar. At-D.D. College Road, Keonjhargarh, Town & Dist-Keonjhar-758001.

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Mr. Sidheswar Mallik, Advocate

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-versus-

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1. State of Odisha, represented through …. Opposite Parties its Secretary to Government of Orissa, Energy Department, Lokseva Bhawan, Bhubaneswar-751001, and District-Khurda

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2. The Engineer-in-Chief, Electricitycum-Principal Chief Electrical Inspector, Odisha, At-Power House Square, Unit-V, Bhubaneswar and District-Khurda.

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3. The Executive Engineer-cum-Dy. Electrical Inspector, Keonjhar. AtD.D. College Road, Keonjhargarh, Town & Dist-Keonjhar-758001.

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Mr. Sailaza Nandan Das, Additional Standing Counsel

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CORAM:

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HON’BLE MR. JUSTICE MURAHARI SRI RAMAN

Order No.

ORDER 06.08.2024

This matter is taken up through Hybrid Mode.

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Non-consideration of bringing the petitioner to regular

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establishment even after serving as NMR in Work Charged

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W.P.(C) No.13259 of 2022

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Page 1 of 10

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Establishment for more than thirty-five years so as to facilitate him to avail the benefit of pension, he has approached this Court by filing this writ petition invoking provisions under Articles 226 and 227 of the Constitution of India.

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The petitioner, worked as Surveyor on Nominal Muster Register (NMR) basis since 1985 under the Executive Engineer- cum- Deputy Electrical Inspector, Keonjhar-opposite party no.3 and was absorbed in Work Charged Establishment vide order dated 31.10.1997 and continued as such till he got retired on attaining the age of superannuation with effect from 31.10.2023.

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Since his case was not considered appropriately, the petitioner seeks for grant of relief to bring him over to the Regular Establishment before the date of retirement (notionally) and extend pension and pensionary benefits as per the provisions of the Odisha Civil Services (Pension) Rules, 1992. 5. In view of Finance Department Resolution No.4419/F47/64/F dated 22.01.1965 that all posts sanctioned in Work Charged Establishment under different Departments of the Government, which have completed five years of continuance existing on the date of issue of the said Resolution and are likely to continue in future and the work for which the posts have been sanctioned are of the permanent nature should be brought over the regular establishment and incumbent of the posts, if considered suitable would also be absorbed in the corresponding posts created in regular establishment, the petitioner having served for more than thirty-five years including twenty-four years under Work Charged

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W.P.(C) No.13259 of 2022

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Establishment, he is entitled to be considered for regularisation in the service in the regular Establishment.

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Heard Mr. Sidheswar Mallik, learned counsel appearing for the petitioner and Mr. Sailaza Nandan Das, learned Additional Standing Counsel appearing for the State-opposite parties.

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Responding to notice issued by this Court vide order dated 04.07.2022, the opposite party nos.1 & 2 filed their response by way of filing counter affidavit on 11.07.2023, wherein paragraph-7, it has been asserted as follows:-

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“7. That, in reply to the averments made in Para-3 to Para-9 of this writ petition, this deponent humbly begs to submit that, a similar situated employee named Sri Ramesh Chandra Sahu filed W.P.(C) No.17048 of 2013 before the Hon’ble High Court of Orissa for the identical matter. The Hon’ble High Court in its order dated 03.02.2021 directed that, the petitioner should be treated to have been regularized in service at least one day prior to his superannuation by creating supernumerary post, if necessary and accordingly, he shall be extended with the pensionary benefits as would be admissible to him.

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That, in subsequent development, the order, supra on dated 03.02.2021 of the Hon’ble High Court has been challenged by the Govt. in Department of Energy, the Opp. Party No.1 before the Hon’ble Supreme Court of India bearing SLP No.8876/2021 and the same is pending at present. The Hon’ble Apex Court vide its order dated 12.07.2021 granted a stay to the operation of the impugned judgment of the Hon’ble High Court of Orissa passed on dated 03.02.2021 in W.P.(C) No.17048 of 2013.

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That, when an identical issue to that of the case petitioner is sub judice before the Hon’ble Supreme Court of India and the same is stayed, the prayer of the petitioner in this writ petition on the same issue cannot be considered at this point of time.

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W.P.(C) No.13259 of 2022

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Hence, the prayer in question of the petitioner will only be disposed of in the line of the decision of the Hon’ble Apex Court that would be passed in the SLP No.8876/2021.”

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Mr. Sidheswar Mallik, learned counsel appearing for the petitioner submitted that since the opposite parties have accepted the position qua the petitioner to be similar to the case of Sri Ramesh Chandra Sahu vs. State of Odisha in W.P.(C) No.17048 of 2013, disposed of on 03.02.2021 by this Court, which was carried to the Hon’ble Apex Court in SLP No.8876 of 2021. He submitted that during the pendency of this writ petition, the said case in Sri Ramesh Chandra Sahu (supra) has already been disposed of by the Hon’ble Supreme Court of India on 16.07.2024 with the following order:-

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“In the peculiar facts and circumstances of the case, we are not inclined to interfere with the impugned judgment. However, order passed by the High Court be implemented within a period of three months else the respondent shall be at liberty to take recourse before the High Court.”

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8.1. For better understanding, the order dated 03.02.2021 passed in W.P.(C) No.17048 of 2013 is quoted hereunder:-

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“ 2. Heard learned counsel for the parties.

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3. By way of this Writ Petition, the petitioner has challenged the order dated 07.03.2009 passed by the learned State Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.846 (C) of 2009.

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W.P.(C) No.13259 of 2022

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Page 4 of 10

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4. The petitioner joined as L.V. Driver under work charged establishment with effect from April, 1971. While working under work charged establishment he retired from his service with effect from 31.10.2007. Before his retirement, the petitioner approached the authorities on number of occasions, to bring him to regular establishment by filing number of representations. Since the petitioner was not taken to the regular establishment, the petitioner filed O.A. No. 1364 (C) of 2005, which was disposed of on 03.03.2005 directing the opposite parties to dispose of the representation of the petitioner. Pursuant to the such direction, the Chief Engineer referred the matter to the Government to bring the petitioner to regular establishment. When no decision was taken by the Government, the petitioner again approached the learned Tribunal by filing O.A. No. 2130 (C) of 2007. The said Original Application, was however disposed of on 03.10.2007 directing the State Government-opposite party no.1 to consider the averments made in the O.A. and pass appropriate orders within a period of three months. The opposite party no.1, however, passed an order on 07.03.2009 rejecting the claim of the petitioner. The petitioner again challenged the same in O.A. No. 846 (C) of 2009. The said O.A. was disposed of on 15.03.2013 in rejecting the claim of the petitioner on the ground of limitation by holding that the petitioner had not approached the Tribunal prior to his retirement/death. Such order dated 15.03.2013 is challenged in the present writ application.

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5. It appears that the issue of release of pension and other retrial benefits to the work charged employee, such an issue was earlier before this Court in W.P.(C) No.8666 of 2004. In the said writ application the petitioner, who was a work charged employee had also challenged the order dated 04.08.2003 passed by Odisha Administrative Tribunal, Cuttack in O.A. No. 2782 (C) of 1997, wherein the Tribunal instead of

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W.P.(C) No.13259 of 2022

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giving any direction towards pensionary benefits directed the authorities to prepare proper scheme and consider the case of the petitioner for regularization and other consequential benefits.

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6. The said writ application was disposed of on 06.05.2004. In paragraph-4 of the said order, it has been observed as follows:-

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“In respect of work charged establishment the Government of Orissa vide Finance Department Office Memorandum No.5483/F dated 6th March, 1990 decided that consequent upon absorption of work charged employees in the corresponding post created in regular establishment, the period of service rendered by him in work charged establishment, shall count towards pensionary benefits under the Orissa Pension Rules, 1977 subject to the condition that the employees so absorbed should have served continuously for a minimum period of five years in the work charged establishment. This decision was not followed by the subordinate authorities. Thus, the fate of the work charged employees who rendered a quite good years of service remained in dark. xxx xxx xxx.”

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Accordingly the said writ application was allowed and direction was given to absorb the petitioner in any establishment post from the time he completed five years continuous service till the date he retired from service and thereafter his pension and other pensionary benefits shall be granted on the basis of notional fixation of pay in regular establishment as has been granted to the applicants in O.A. No. 622 of 1999 and other cases as reflected in the said order of this Court. The order passed by this Court, was confirmed by the Apex Court in Civil Appeal No. 5575 of 2007 dated 22.07.2015.

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W.P.(C) No.13259 of 2022

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Page 6 of 10

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7. Such was the issue in case of one Narusu Pradhan, a work charged employee, wherein after the order passed by the Hon’ble Apex Court in S.L.P No. 22498 of 2012, the authorities passed an office order on 08.05.2013 by creating supernumerary post, regularized his service for the purpose of sanctioning pension.

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8. This Court had also occasion to deal with this issue again in W.P.(C) No. 1534 of 2008, i.e. in the case of State of Orissa and others v. Jyostna Rani Patnaik and others, wherein direction of the Tribunal to regularize the service of the applicant’s husband by way of creating a supernumerary post, if necessary from the time he had completed 5 years of service as work-charged employee by bringing him over to regular establishment was challenged before this Court by the State authorities. The said case was disposed of vide judgment dated 19.12.2016, affirming the view expressed by the Tribunal.

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9. Learned counsel for the petitioner submitted that in similar matter bearing O.A. No. 70(8) of 1997 in case of Duryodhan Mohanty and others and O.A. No.622 of 1999, in which same point of law was under challenge and the learned Tribunal was pleased to allow the O.A and directed that the applicants shall be absorbed in any establishment posts from the time they completed five years of continuous service till the date when they retired from service. After such absorption, their pension and other pensionary benefits shall be computed on the bass of notional fixation of pay on the regular establishment by adding annual increments which fell due. The said common order passed by the Tribunal was challenged by the petitioner before this Court in W.P.(C ) No.8666 of 2004. Vide judgment dated 6.5.2004, this Court allowed the said Writ Petition by citing a decision in the case of (State of Orissa v. Chaitanya Gouda and five others), with the observation/direction as quoted above. Therefore, the

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W.P.(C) No.13259 of 2022

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petitioner is entitled to the benefit of pension, gratuity and other retrial benefits. Learned counsel for the petitioner submitted that the petitioner has submitted several representations to be brought over to regular establishment entitling him to claim pension and pensioanry benefits, but his grievance has not been redressed, even through the Finance Department has issued specific resolutions in this regard on 22.01.1965 and also the Works Department in his letter dated 25.05.1997 and Circular dated 27.09.1980 for regularization of services of such employees.

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10. It was also brought to the notice of this Court about the order dated 02.04.2018 passed in OJC No. 12017 of 2000, wherein it has been observed/ directed as follow:-

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Having heard learned counsel for the parties and on perusal of the record, more particularly the order impugned herein, it appears that the Government in Finance Department vide resolution dated 22.01.1965 decided for absorption of such employees to regular establishment after completion of five years in the Work Charged Establishment. Subsequently vide memorandum dated 06.03.1990, Finance Department has also extended the pensionary benefit to work charged employees. Learned Tribunal in O.A. No. 2389 of 1997 vide order dated 23.02.1999 has already disposed of a case of similar nature. Even learned Tribunal has gone on to adjudicate one dispute in O.A. No. 1819 of 1996 regarding extension of pensionary benefit to such work charged employees, who have already retired. The plea of Additional Government Advocate to the effect that the opposite party could not have been brought over to regular establishment, as there was no vacancy, is not sustainable in law, as it has already been held in a catena of decisions that even if there is no clear vacancy, a work charged employee can be brought over to regular establishment for at least one day by creating a

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W.P.(C) No.13259 of 2022

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supernumerary post to make him entitled for pensioanry benefit. In view of the above, we modify the order of learned Tribunal to the extent that the opposite party shall be brought over to the regular establishment for at least one day by creating a supernumerary post, if necessary and accordingly, he shall be extended with the pensionary benefit as would be admissible to him. The entire exercise shall be completed within a period of two months hence.

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It was also contended that relying on such decision, may other writ petitions, such as OJC No. 12017 of 2000 (decided on 16.04.2019), W.P.(C) No. 12017 of 2000 (decided on 16.04.2019) have also been disposed of.

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11. In the present case, the finding of the Tribunal that the petitioner had approached the Tribunal after his retirement, is nothing, but non-application of mind of the Tribunal. The petitioner had approached the Tribunal on number of occasions before his retirement, as indicated in aforementioned paragraphs. Thus the finding of the Tribunal in the impugned order, so far as petitioner is concerned, is liable to be quashed and according the same is quashed.

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12. This writ petition is disposed of in terms of the observations/ directions given in aforementioned cases. Accordingly this Court directs that the petitioner should be treated to have been regularized in service at least one day prior to his superannuation, by creating supernumerary post, if necessary and accordingly he shall be extended with the pensionary benefits as would be admissible to him. The entire exercise shall be completed within a period of two months from the date of receipt of the copy of this order.”

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Mr. Sailaza Nandan Das, learned Additional Standing Counsel appearing for the State-opposite parties raised no dispute

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with respect to aforesaid position and submitted that at the relevant point of time since the SLP No.8876 of 2021 filed at the behest of the State of Odisha was pending before the Hon’ble Supreme Court of India, the petitioner was not granted the relief as sought for in this petition. However, as the said SLP has been disposed of in the meantime, as stated at paragraph-7 of the counter affidavit, the case of Ramesh Chandra Sahu (supra) is applicable to the case of the petitioner.

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In view of such submissions, there remains nothing for adjudication but to direct the opposite parties to consider the case of the petitioner in the light of Ramesh Chandra Sahu (supra) and extend the consequential benefits to the petitioner within a period of three months from today.

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With the aforesaid observation and directions, the writ petition stands disposed of.

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(M.S. Raman) Judge

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Laxmikant

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Signature Not Verified

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Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Aug-2024 19:50:57

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Bata Krishna Mahanta v. State of Odisha

Case brief

What is this about?

What did the court decide?

Bata Krishna Mahanta v. State of Odisha

Case brief

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