Biswanath Dalei Vs State of Orissa

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.276 of 2023

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An application under Articles 226 and 227 of the Constitution of India.

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-versus-

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.
State of Orissa and others Opp. Parties
Mr.P.C.Das, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA

Date of hearing : 01.03.2024 | Date of Judgment : 01.03.2024

A.K. Mohapatra, J. :

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1. The petitioner has filed the present writ application challenging the order dated 29.07.2022 under Annexure-5 along with a prayer to quash the said order. Further the petitioner has also sought for a direction to the Opposite Parties to compute the period of service rendered by the petitioner in the Work Charge Establishment, i.e. a period of 6 years 7 months and 3 days, towards qualifying period for calculation of pensionary benefit including gratuity, within a stipulated period of time.

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2. The factual background leading to the filling of the present writ application, in a nutshell, is that the petitioner was initially appointed as a Meter Reader under the Work Charge Establishment

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along with three other persons, one of them being Sri. U.K Mohapatra, by the Superintending Engineer, Upper Kolap Circle, vide order dated 14.04.1981under Annexure 8 to the rejoinder affidavit. While continuing to work under Work Charge Establishment, the petitioner was appointed in the regular establishment as Junior Assistant, vide order dated 06.01.1988 under Annexure-2, in the Directorate of Higher Education Odisha, Bhubaneswar and accordingly the petitioner joined in service on 08.02.1988 along with the other person namely Sri. U.K.Mohapatra as a Junior Assistant. On such appointment the petitioner continued to discharge his duties as a Junior Assistant in the office of the Directorate Higher Education of Odisha until his retirement on attaining age of superannuation w.e.f. 31.10.2012.

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3. While the matter stood thus, the petitioner was not getting full pension. Consequently, he approached the Directorate of Secondary Education for grant of full pension. The Assistant Director (Planning), considering the representation of the petitioner, wrote a letter to the Government on 14.08.2019 under Annexure-4 seeking instruction from Government with regard to calculation of entire service period of petitioner for the purpose of calculation and disbursal of the pensionary benefits due and admissible to the petitioner. Furthermore, the letter under Annexure-4 reveals that the petitioner, since the date of his joining on 08.02.1988, had worked continuously for a period of 25 years 8 months and 22 days till his retirement on 31.10.2022. Therefore, the sole grievance of the petitioner in the present writ application is that while calculating the aforesaid period for computing his pensionary benefits, the opposite parties have not included the period of more than 6 years during

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which the petitioner had worked under the Work Charge Establishment.

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4. Heard learned counsel for the petitioner as well as Learned Additional Standing Counsel. Perused the pleadings of the parties and the documents annexed thereto.

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5 . The learned counsel appearing for the petitioner at the outset submits that, the Govt. of Odisha, School and Mass Education Department vide letter dated 29.07.2022 under Annexure-5 has rejected the claim of the petitioner by passing a non-speaking order. A perusal of the said order under Annexure-5 reveals that the Under Secretary to Government, S & ME Department has passed a singlesentence order wherein, he has stated that the representation of the petitioner for counting of past service for computing pensionary benefits merits no consideration as per Rule 18(3) O.C.S. Pension Rule, 1990. In course of his argument, learned counsel for the petitioner contended that initially the petitioner was engaged in the Work Charge Establishment pursuant to the order under Annexure-1 and accordingly he joined on 08.02.1981. Thereafter, the petitioner continued in the Work Charge Establishment for more than 6 years.

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6 . Finally, the petitioner was selected for appointment as a Junior Assistant in the office of the Directorate of Higher Education, Odisha vide order under Annexure-2 and consequently joined in said post of Junior Assistant w.e.f. 08.02.1988. In such view of the matter, learned counsel for the petitioner submitted that petitioner had completed more than 6 years of service in the Work Charge Establishment before he was brought over to the regular establishment on 08.02.1988 upon joining as a Junior Assistant. He further contended that although the petitioner continued for more than 25 years in the regular establishment till his retirement from

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service upon attaining the age of superannuation w.e.f. 31.10.2012, the opposite parties have not taken into consideration the past service rendered by the petitioner in the Work Charge Establishment while calculating the full pension and pensionary benefits as is due and admissible to the petitioner.

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7 . In the aforesaid context, learned counsel for the petitioner referred to the provisions contained in Rule 18(3) of the Odisha Civil Services (Pension) Rules, 1992. The said Rule has been quoted herein below for better appreciation: -

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“ Notwithstanding anything contained in clauses in Sub-Rule (i) and (ii) of sub-rule (2) a person who is initially appointed by the Government in a workcharged establishment for a period of five years or more and subsequently appointed to the same or another post in a temporary or substantive capacity in a pensionable establishment without interruption of duty, the period of service so rendered in workcharged establishment shall qualify for pension under this rule.”

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8. On a careful reading of Sub-Rule 3 of Rule 18 it appears that the same starts with a non-obstante clause. The rule provides that notwithstanding anything containing clause (i) and (ii) of Sub-Rule 2 of Rule 18, a person who is initially appointed by the Government in a Work Charge Establishment for a period of 5 years for more and subsequently appointed in the same or another post in a temporary or substantive capacity in a pensionable establishment without interruption of duty, the period of service so rendered in Work Charge Establishment shall qualify for pension under the said Rule. In other Words, a person who is initially appointed in the Work Charge Establishment and has worked for a period of 5 years or more and, subsequently he was appointed in a regular

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pensionable post, then in such eventuality, while calculating the pensionary benefits as is due and admissible to such employee, the employer shall take into consideration the period of service rendered in the Work Charge Establishment as a qualifying period for the purpose of computing the pension and pensionary benefits due and admissible to the employee concerned. Thus, there is no ambiguity in the aforesaid Rule 3 of Rule 18. In such view of the matter, leaned counsel for the petitioner submitted that the Opposite Parties have committed a gross illegality by passing the order under Annexure-5 to the writ application thereby rejecting the representation of the petitioner.

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9. Per contra, learned Additional Standing Counsel, on the other hand, referring to the counter affidavit filed on behalf of the Opposite Party No.2 submitted that the petitioner joined as a Junior Assistant on 08.02.1988 in the Directorate of Higher Education as a Government Servant on being selected by the Board of Revenue i.e. the recruiting agency. The counter affidavit also does not dispute the fact that the petitioner was engaged by the Government in the Work Charge Establishment under the Project Upper Kolab Circle as a Meter Reader w.e.f. 28.04.1981 and he continued to work there till 24.02.1987. Learned Additional Sanding Counsel in the aforesaid context submitted that the service rendered in the Work Charge Establishment is against a non-sanctioned and non-available post. Therefore, such service rendered by the petitioner in the Work Charge Establishment is purely non-Governmental and nonpensionable service. Consequently, it was contended that the petitioner is not entitled to the benefit of counting of past service as provided under Rule 18(3) of O.C.S. pension Rules, 1990.

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10. The Learned Additional Standing Counsel further contended that since the period of service, i.e. 6 years 7 months and 25 days, in the Work Charge Establishment is in a non-pensionable establishment, therefore the same has not been taken in to consideration while calculating the pension and pensionary benefits as is due and admissible to the petitioner. He further contended that the petitioner has been granted pension and pensionary benefits by taking into consideration his service rendered from 08.02.1988 to 31.10.2012, i.e. 24 years 8 months 22 days, under the State Government in a pensionable post of Junior Assistant. Accordingly, it was submitted that the opposite Parties have not committed any illegality in rejecting the claim of the petitioner for including the Work Charge period in the qualifying period for calculation of pension and pensionary benefits.

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11. Learned Additional Standing Counsel further relied upon the clause 1 and clause 2 of Sub-Rule (iii) of Rule 18 of the pension rules to deny the claim of the petitioner by saying that the service period rendered in the Work Charge Establishment is to be included in the total period of service for the purpose of pension and pensionary benefits. The Opposite Parties have also referred to the Finance Department OM No.49296/A dated 12.12.1997. Learned Additional Standing Counsel also distinguished the case of the present petitioner from the judgment of this Court in Basant Kumar Sahoo’s case reported in 2022 (II) OLR - 219 on the ground that the petitioner was working under the Work Charge Establishment as Meter Reader which is not a feeder post to Junior Assistant and hence the ratio laid down in Basant Kumar Sahoo’s Case (supra) shall not be applicable to the facts of the petitioner’s case.

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12. Having heard the learned counsels appearing for the respective parties, on a careful analysis of the submissions made by respective counsels and, on a careful examination of the materials on record as well as the pleadings of the parties, this Court is of the considered view that the only question that falls for consideration in the present writ application is whether the petitioner is entitled to the counting of past service rendered in the Work Charge Establishment for a period of 6 years 7 month 25 days, as a Meter Reader, while calculating his full pension and pensionary benefits including the period of service which he had rendered in the regular establishment as a Junior Assistant. Learned counsel for the petitioner in reply to the aforesaid issue submitted that the case of the petitioner is squarely covered under Rule 18(3) of the O.C.S. Pension Rule, 1992. On a careful scrutiny of the provisions contained in Rule 18(3) this Court observes that the said rule has been enacted by inculcating a non-obstante clause in respect of Sub-Rule 2(i) and 2(ii). Therefore, irrespective of the provisions contained in Sub-Rule 2(i) and Sub-Rule 2(ii) of Rule 18, if a person is initially appointed by the Government in Work Charge Establishment for a period of 5 years or more and subsequently appointed either to the same post or another post, in a temporary or substantive capacity, in a pensionable establishment, without interruption of duty, then the period of service so rendered in the Work Charge Establishment shall qualify for pension.

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13. While considering the applicability of the aforesaid rule to the facts of the petitioner’s case, this Court on a careful scrutiny has found that initially the petitioner was engaged in the Work Charge Establishment as a Meter Reader from the date of his joining on 24.04.1981. Thereafter, he continued in such service in the Work

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Charge Establishment. A service book was also opened in respect of the petitioner and the petitioner was extended a scale of pay while continuing in the said post of Meter Reader in the Upper Kolab Project under the Superintending Engineer, Upper Kolab Circle. Thereafter, the petitioner was duly selected for appointment as a Junior Assistant in the Directorate of Higher Education, Odisha. As such, the petitioner joined as a Junior Assistant on 08.02.1988. On examination of the records it appears that there was no break in service and the petitioner who was a Meter Reader in Work Charge Establishment joined directly as a Junior Assistant in the office of the Directorate of Higher Education on 08.02.1988, continued in such service till the date of his retirement on attaining the age of superannuation on 31.10.2012., i.e. after rendering a continuous service of 25 years 8months 22 days.

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14. In the aforesaid backdrop, by applying the rule 18(3) of the O.C.S. pension Rules 1992 to the facts of the present case, this Court is of the considered view that the case of the petitioner is squarely covered under the Sub-Rule 3 of Rule 18 of 1992 Rules. Furthermore, on perusal of the rejoinder affidavit filed by the petitioner, this Court is also of the view that another person namely Sri U.K.Mohapatra, who was also appointed with the petitioner on 14^th April, 1981 under Annexure-8 and subsequently appointed in the regular establishment, has been extended with the full pensionary benefit by taking into consideration the period of service rendered by him in the work charge establishment. The differential treatment of two similarly situated employees, who were both initially engaged in the Work Charge Establishment by virtue of the very same order under Annexure-8 to the writ application, by the Opposite Parties thereby extending the benefit in favour of one

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while rejecting the case of the petitioner by virtue of the order Annexure-5, is highly arbitrary and discriminatory in nature and as such, the same is violate of Article 14 of the Constitution of India.

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15. In view of the aforesaid analysis of the facts of the present case as well as legal position, and keeping in view the provisions contained in Rule 18(3) of O.C.S. pension rules as well as the fact that the benefits prayed for have been extended in favour of a similarly placed person, i.e. one Sri. U.K.Mohapatra, this Court deems it proper to allow the writ application by setting aside the impugned rejection order dated 29.07.2022 under Annexure-5 to the writ application. Further, the matter is remanded back to the Opposite Party No.1 to reconsider the case of the petitioner. Accordingly, the petitioner be extended with the benefits of inclusion of the work charge period in the total qualifying period of service for grant of pension and pensionary benefits. The financial benefits arising out of the aforesaid inclusion of work charge period be also extended in favour of the petitioner within a period of two months from the date of communication of a copy of this judgment by the petitioner.

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16. With the aforesaid observation and direction, the writ petition is allowed.

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(A.K. Mohapatra) Judge

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Orissa High Court, Cuttack The 1st of March, 2024/ Rubi.

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Signature Not Verified

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Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 02-Apr-2024 11:32:51

Biswanath Dalei v. State of Orissa

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Biswanath Dalei v. State of Orissa

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