Aswini Kumar Mohapatra Vs State of Odisha

ORISSA HIGH COURT : CUTTACK

W.P.(C) No.35706 of 2021

In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950

1. Aswini Kumar Mohapatra Aged about 61 years Son of Late Antarjyami Mohapatra At: Badabhuin Dal, P.O.: Badabhuin Via : Athgarh, District: Cuttack.

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2. Bharat Bhoi Aged about 60 years Son of Late Kartik Bhoi At: Magalpur, P.O.: Laxminarayanpur P.S.: Pipili, District: Puri.

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3. Bharat Kumar Mallick Aged about 59 years Son of Late Balakrushna Mallick At/P.O.: S. Basandara, Via : Biridi Road District: Jagatsinghpur.

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4. Bhikari Charan Naik Aged about 60 years Son of Dharmu Naik At/P.O.: Bharatpur Hara Parbati Sahi Bhubaneswar – 751 003 District: Khordha.

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5. Biswanath Senapati Aged about 58 years Son of Late Maguni Senapati

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At: Nandighosh Pur, P.O.: Mahipur P.S.: Nuagaon, District: Nayagarh.

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6. Bulei Samal Aged about 58 years Son of Late Sankar Samal At: Budhalo, P.O.: Bainchua District: Khordha.

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7. Chitta Ranjan Das Aged about 57 years Son of Gandharb Bhoi At/P.O.: S. Basandara P.S.: Biridi Road District: Jagatsinghpur.

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8. Debendra Rout Aged about 61 years Son of Late Maguni Rout At/P.O.: Namaro, Via : Kakatpur District: Puri.

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9. Dhajia Bhoi Aged about 59 years Son of Late Manmohan Bhoi At: Birabandha, P.O.: Kuha Bhubaneswar, District: Khordha.

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10. E. Purusottam Reddy Aged about 55 years Son of Late E. Bairagi Reddy At: Kedarpalli, Bapujinagar Bhubaneswar – 751 009 District: Khordha.

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11. G. Kuramayya Aged about 61 years Son of Late G. Kittaya At: Qr. No.VII-D/S-2/1, Unit-III Kharavela Nagar, Bhubaneswar.

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12. Hare Krushna Behera Aged about 61 years Son of Late Guru Charan Behera At: Mahadev Nagar, Jharpada Bhubaneswar - Khordha.

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13. K. Rameya Aged about 57 years Son of K. Masani At: Qrs. No.461, Unit-III Kharavela Nagar, Bhubaneswar.

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14. Kari Duluvaya Reddy Aged about 60 years Son of Late Kari Rameya Reddy At: Qrs.No.G-12, Unit-III Kharavela Nagar, Bhubaneswar.

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15. Kari Duryadhan Aged about 55 years Son of Late Kari Ramaya At: Gobindapur, P.O.: Surala Golanthara, District: Ganjam.

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16. Kochila Debendra Aged about 59 years Son of Late Kochila Das At: Qrs. No.G-15, Unit-III Kharavela Nagar, Bhubaneswar.

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17. Pravakar Bhoi Aged about 58 years Son of Late Apartti Bhoi At: Kalia Garh, P.O.: Urada Via : Olatpur, Cuttack.

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18. Rabindranath Mekap Aged about 66 years Son of Late Krushna Chandra Mekap At: I.R.C. Village

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Near N-6 Govt. U.P. School Bhubaneswar, District: Khordha.

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19. Surendra Nayak Aged about 59 years Son of Late Sapani Nayak At: Plot No.1296, Mandap Sahi Budheswari, Bhubaneswar District: Khordha. … Petitioners.

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-VERSUS-

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1. State of Odisha Represented through Principal Secretary to Government of Odisha General Administration & Public Grievance Department Odisha Secretariat Bhubaneswar, Khordha.

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2. Director of Estates-cum-Ex-Officio Additional Secretary to Government General Administration & PG Department Odisha Secretariat Bhubaneswar, Khordha.

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3. Additional Director of Estates- cum - Additional Secretary to Government General Administration & PG Department, Odisha Secretariat Bhubaneswar, Khordha.

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4. Superintendent, State Capital Nursery Arboriculture Organization, Unit-II Bhuabneswar – 753 009 District: Khordha. … Opposite Parties.

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Counsel appeared for the parties:

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For the Petitioners : M/s. Bhabani Sankar Tripathy-1, Atul Tripathy and A. Sahoo, Advocates

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For the Opposite parties : Mr. Sailaza Nandan Das,

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Additional Standing Counsel And Tarun Patnaik

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Additional Standing Counsel

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P R E S E N T:

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HONOURABLE

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MR. JUSTICE MURAHARI SRI RAMAN

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Dates of Hearing : 30.08.2024 :: Date of Judgment : 03.10.2024

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JUDGMENT

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Impugned in the present writ petition is the order No.4632— GAD-CA3-ESTT-0002-2020/CA, dated 06.02.2021 passed by the Additional Chief Secretary to Government of Odisha in General Administration & Public Grievance Department as communicated vide Memo No.4633/CA, dated 10.02.2021 (Annexure-11), whereby the representation dated 20.04.2020 of the petitioner-Aswini Kumar Mohapatra, seeking to reckon the total period of service from the date of joining as casual labourer in the Arboriculture Organization, i.e ., 15.06.1988 for the purpose of payment of pension, gratuity and other retirement benefits in pursuance of the direction of this Court by order dated 04.01.2021 in W.P.(C) No.14231 of 2020, has been rejected.

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1.1. Nineteen numbers of casual labourers of Arboriculture Organisation, who were conferred with TEMPORARY STATUS and later on brought over to regular establishment, joined together to question the propriety and legality of impugned order dated 06.02.2021 vide Annexure-11 before this Court craving to invoke extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, with the following prayer(s):

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―On the facts and in the circumstances stated above, your petitioners, therefore, pray that this Hon‘ble Court be pleased to;

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i) Quash the impugned order dated 10.02.2021 of the opposite party No.1 under Annnexure-11 by holding the same as bad, illegal and contrary to the order dated 04.01.2021 of this Hon‘ble Court in W.P.(C) No.14231 of 2020 & batch and the ratio decided in the judgment dated 02.04.2018 rendered in OJC No.8149 of 2000 (State of Odisha Vrs. Hadu Gouda) and in the case of State of Odisha Vrs. Jugal Kishore Sahoo¹ ; and thereby;

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ii) Direct the opp. parties to further to count their entire period of casual service for the purpose of granting them pension and gratuity; and thereby

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iii) Direct the opposite parties to forthwith sanction and release retiral/pensioner benefits with gratuity in favour of the petitioners;

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1 OJC No.12017 of 2000, vide order dated 16.04.2019

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And pass such other order(s) as deemed fit and proper in the bona fide interest of justice;

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And for which act of your kindness, the petitioners shall as in duty bound, ever pray.‖

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Facts as outlined by the writ petitioners:

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2. Aswini Kumar Mohapatra and eighteen others are stated to have been engaged as casual labourer in the Arboriculture Organization of State Capital Nursery, Unit-II, Bhubaneswar under control of the Director of Estates- cum -Additional Secretary to the Government of Odisha in General Administration and Public Grievance Department with effect from 15.06.1988.

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2.1. The Finance Department by way of Resolution dated 15.05.1997 promulgated a Scheme for absorption of the NMR/DLR/Job-Contract workers, who were engaged prior to 12.04.1993 with minimum educational/ technical qualification. In furtherance thereof, the Finance Department issued Office Memorandum vide No.49296 dated 12.12.1997 stipulating therein that the addition of so much portion of job-contract service to the period of qualifying service under regular establishment as would render such employees eligible for pension, shall not be counted for calculation of gratuity. By virtue of Finance Department Office Memorandum No.24989— Pen.59/97/F., dated 08.06.1998 said Office

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Memorandum dated 12.12.1997 got modified partially to the extent that ―so much of job-contract service period as is required to be added to the qualifying service under regular establishment to make the employee concerned eligible for pension, shall henceforward, also be taken into account for calculation of gratuity‖.

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2.2. Considering the grievance of the casual labourers, like the petitioners, the Government of Odisha vide General Administration Department Order No.3815— Arbo/G10/2011 (Pt.III)/CA, dated 21.04.2011 finalized the seniority list of the casual labourers working under the Arboriculture Organisation under the General Administration and Public Grievance Department, wherein the name of Aswini Kumar Mohapatra finds place at Serial No.62 depicting the date of engagement as casual labourer as 15.06.1988. The said order is quoted hereunder:

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―Government of Odisha General Administration Department Bhubaneswar, Dated 21.04.2011 Office Order

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No.Arbo/G-10/2011 (Pt.III) 3815/CA.—

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After careful consideration, Government have been pleased to finalise the seniority list of casual labourers working under Arboriculture Organisation under General Administration Department as at Annexure-1.

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Sd/-

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Director of Estates & Ex-Officio Additional Secretary to Government

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Memo No.3816/CA.

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Copy along with copy of the seniority list of casual labourers forwarded to the Superintendent, Arbo. Organisation, G.A. Department, Unit-II, Bhubaneswar for publication in the Notice Board.

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Sd/-

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Memo No.3817/CA., Dt.21.04.11

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Copy along with copy of the seniority list of casual labourers forwarded to the Notice Board and N.I.C. for publication.

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Sd/-

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Deputy Director of Estates

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Memo No.3818/CA. Dt.21.04.11

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Copy to Guard file for information.

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Deputy Director of Estates

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Seniority List of Casual Labourers working in Arboriculture Organisation under G.A. Department

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Sl. No.	Name of the casual labourer	Category	Date of Birth	Educational Qualification	Date of engagement	Remarks
1	2	3	4	5	6	7
***	***	***	***	***	***	***
62	Aswini Kumar		22.5.1960	HSC	15.6.1988

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Mahapatra
*** *** *** *** *** *** ***‖

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2.3. The opposite party No.1 vide Office Order No.3159—0265-18-0013-2012/CA, dated 02.02.2013, conferred ―TEMPORARY STATUS‖ to ninety-seven casual labourers including the petitioner(s), engaged prior to 12.04.1993 and fulfilled conditions of engagement stipulated in the Finance Department Resolution No.31715-FIN-BUD5MISC-0009/2012/F., dated 04.09.2012, with effect from 04.09.2012.

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2.4. Two casual labourers, namely, Sri Chitta Ranjan Das and Trilochan Malik were temporarily absorbed in the post of ―SAHAKARI MALI‖— Group-D in the Arboriculture Organization in the scale of pay of Rs.4,750/- — Rs.14,680/- with Grade Pay of Rs.1,500/- in pay Band1-S with effect from 01.03.2014 vide Office Order dated 13.05.2014 and Office Order dated 09.06.2014 of the opposite party No.1.

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2.5. Since other petitioners are entitled to the similar benefits of absorption with effect from 01.03.2014, the opposite party No.1 issued Office Order No.2859-02-65-180059/2014, dated 04.02.2015 absorbing fifty-six casual labourers including the petitioners in Group-D post as ―SAHAKARI MALI‖ in the aforesaid Arboriculture Organization of State Capital Nursery, Unit-II,

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Bhubaneswar out of the common list of 105 persons, who were conferred with TEMPORARY STATUS vide General Administration Department Office Order No.3159/CA, dated 02.02.2013.

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2.6. Since it is stipulated in the said Office Order of absorption clarified that ―the dates of absorption shall be reckoned as their first appointment to the service for the purpose of retirement and other service benefit‖ , being aggrieved, the petitioner, Aswini Kumar Mohapatra, has made representation, but the same yielded no result till his date of retirement on attaining superannuation with effect from 31.05.2020. He apprised the authority concerned for counting his past service as casual labourer in the Arboriculture Organization for the purpose of pension, gratuity and retirement benefits by way of filing representation dated 20.04.2020.

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2.7. As nothing fruitful yielded, finding no alternative the petitioners have approached this Court by way of writ petitions being W.P.(C) No.14231 of 2020 & batch, which was disposed of on 04.01.2021 with a direction to opposite party No.1 to consider the representation of the petitioner(s) taking into account the grounds stated in the writ petition(s). Thereafter the opposite party No.1 in compliance of this Court‘s order dated 04.01.2021

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considered the representation and passed order dated 10.02.2021, which is reproduced hereunder:

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―Government of Odisha

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General Administration & Public Grievance Department No.4632-GAD-CA3-ESTT-0002-2020/CA., Bhubaneswar, dated 10^th Feb, 2021

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Order

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WHEREAS, Shri Aswini Kumar Mohapatra, who retired as Sahakari Mali on attaining the age of superannuation on 31.05.2020 in the Arboriculture Organization of State Capital Nursery, Bhubaneswar under this Department, moved the Hon‘ble High Court of Orissa in WP© No.14231 of 2020, praying therein for a direction to the Opp. Party No.1 i.e., Principal Secretary, (Now Addl. Chief Secretary) G.A & P.G. Department to count his entire period of casual service for the purpose of granting him pension and other service benefits.

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AND WHEREAS, the Hon‘ble High Court disposed of the said Writ Petition, vide, Order dated 04.01.2021, interalia, with a direction to the undersigned (Opp. Party No.1) to consider the representation at the instance of the petitioner vide Annexure-9 and take a lawful decision in the matter taking into account the grounds stated in the Writ Petition, so also the decisions relied on by him;

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AND WHEREAS, the Hon‘ble Court further directed that the entire exercise in this regard shall be completed within eight weeks from the date of communication of a copy of the said Order dated 04.01.2021 and copy of the judgment relied on by the petitioner and copy of the Writ Petition;

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AND WHEREAS, Shri B.S. Tripathy, Advocate, Cuttack, for and on behalf of Shri Aswini Kumar Mohapatra, filed an authenticated copy of the said Writ petition, Copy of the Order dated 04.01.2021 passed by the Hon‘ble High Court and copy of the Judgments of the Hon‘ble High Court passed in the case of State of Odisha Vs. Jugal Kishore Sahoo and in the case of State of Odisha & Others Vs. Mithuram Bhoi before the undersigned on 15.01.2021;

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AND WHEREAS, pursuant to the aforesaid Order dated 04.01.2021 of the Hon‘ble High Court, the representation of the petitioner dated 20.04.2020, vide, Annexure-9 to the Writ Petition was carefully examined, so also the grounds stated in the Writ petition;

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AND WHEREAS, Shri Mohapatra had initially joined as Casual Labourer in Arboriculture Organization of State Capital Nursery, Bhubaneswar under this Department on 15.06.1988 and has conferred with ―Temporary Status‖ w.e.f. 04.09.2012 vide G.A. Deptt. Order No.3159, dated 02.02.2013 as per F.D.O.M. No.31715/F., dated 04.09.2012 and subsequently absorbed in Arboriculture Organisation under regular establishment vide G.A. Deptt. Office Order No.2859., dated 04.02.2015.

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AND WHEREAS, Shri Mohapatra in his representation dated 20.04.2020 vide Annexure-9 has requested for counting his total period of service from the date of joining as Casual Labourer in Arboriculture Organisation towards payment of pension and other service benefits as per F.D.OM No.22754/F, dated 15.05.1997 & O.M. No.49296/F., dated 12.12.1997 and O.M. No.22754/F, dated 15.05.1997 & O.M. No.24989/F dated 08.06.1998.

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AND WHEREAS, as the petitioner initially joined as Casual Labourer in Arboriculture Organisation, the above guidelines of Finance Department are not applicable in case of Sri Mohapatra as he was not a N.M.R/D.L.R./Job contract employee. For absorption of the Casual/daily wage Labourers engaged in different Govt. establishments, Finance Department vide their Resolution No.31715/F., dated 04.09.2012 have formulated a scheme for grant of ―Temporary Status‖ and absorption of above category of employees against regular Group-D vacancies.

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AND WHEREAS, as per the above guideline of F.D., Sri Mohapatra has been conferred with ―Temporary Status‖ with effect from 04.09.2012 and subsequently absorbed in regular establishments vide this Department Office Order No.2859., dated 04.02.2015 and in the said order it has been categorically mentioned that on absorption in the regular establishments, they shall be eligible to draw the minimum to the pay band with Grade pay attached to the post and other allowances admissible under rule from time to time and the date of absorption shall be reckoned as their 1^st appointment to the service for the purpose of retirement & other service benefits .

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AND WHEREAS, the earlier representation dated 28.01.2019 of Shri Mohapatra along with 6 others Sahakari Malis and representation dated 01.10.2018 of the President, Rajdhani, Arboriculture employees Association on the same matter i.e. regarding counting of the period of past service as Casual/daily wage labourer towards sanction of pension and other service benefits have not been considered and disallowed being not in consonance with F.D. Resolution No.31715/F, dated 04.09.2012 and the

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same has been intimated to the petitioner vide this Department Letter No.25225/CA, dated 07.09.2019. Further, the representation dtd.02.11.2019 & 04.11.2019 of Sri Mohapatra & 5 others have been rejected and communicated them vide General Administration & Public Grievance Department Letter No.13855/CA, dated 11.06.2020.

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AND WHEREAS, Shri B.S. Tripathy, Advocate, Cuttack, for and on behalf of Shri Aswini Kumar Mohapatra, has cited a copy of the judgments of the Hon‘ble High Court passed in the case of State of Odisha Vrs. Jugal Kishore Sahoo and in the case of State of Odisha & others Vrs. Mithuram Bhoi where in the above Judgments are also not applicable in case of the petitioner as he was not a work Charged employee but, a Casual Labourer.

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NOW, THEREFORE the representation of the petitioner vide Annexure-9 for counting the total period of service from the date of joining in Arboriculture organisation as Casual Labourer towards payment of pension and other service benefits having no merit for consideration is hereby rejected .

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Sd/Additional Chief Secretary to Govt.‖

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2.8. Yet aggrieved, the petitioners have filed this writ petition assailing the said impugned order dated 06.02.2021 vide Annexure-11.

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Hearing:

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3. Pleadings being completed and exchanged amongst the counsel for respective parties, on their consent, this matter is taken up for final hearing. Accordingly, heard Sri Bhabani Sankar Tripathy-1 along with Sri Atul Tripathy, learned Advocates for the petitioners and Sri Sailaza Nandan Das, learned Additional Standing Counsel for the opposite parties and the matter stood reserved for preparation and delivery of Judgment.

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Rival contentions and submissions:

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4. Sri Bhabani Sankar Tripathy, learned Advocate advanced arguments that the petitioner No.1, engaged in 1988, i.e., prior to 12.04.1993, while working as casual labourer in Arboriculture Organisation for around 24 years, was conferred with ―TEMPORARY STATUS‖ and thereafter he was absorbed in regular establishment with effect from 04.02.2015. He amplified his argument by stating that while the petitioner Nos.1 to 9, 11 to 14, 16 to 19 after rendering around 32 years of service got retired during 2020 on attaining age of superannuation, the petitioner Nos.10, 12, 13, 15, 17 and 18 are going to retire during 2024-26.

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4.1. Referring to Revenue and Disaster Management Department Circular dated 21.02.2014 and Finance Department Office Memorandum No.PKM-790-5483/F.,

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dated 06.03.1990 and stemming on the decision of this Court in State of Odisha Vrs. Hadu Gouda, OJC No.8149 of 2000, vide Judgment dated 02.04.2018; Jugal Kishore Sahoo, OJC No.12017 of 2000, vide order dated 16.04.2019 and² Rabindra Kumar Jena Vrs. State of Odisha, W.P.(C) No.36009 of 2021 & Batch, vide Judgment dated 07.12.2022 he urged that the petitioners are entitled to pension, gratuity and other retirement benefits as admissible to the regular employees.

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4.2. Sri Bhabani Sankar Tripathy, learned Advocate asserted that the petitioners are entitled to pension, gratuity and other retirement benefits, though were conferred with TEMPORARI STATUS in consonance with Resolution dated 04.09.2012, in view of State of Punjab Vrs. Jagjit Singh, (2017) 1 SCC 148 , wherein it has been laid that,

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―42. All the judgments noticed in paras 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of ―equal pay for equal work‖. The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them were against the same post for which a higher pay scale was being allowed in other

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2 Against this order, intra-Court Appeal at the behest of State of Odisha in W.A. No.1771 of 2023 has been dismissed vide order dated 19.10.2023 on the ground of inordinate delay of 206 days in filing appeal in view of the judgment/order of this Court in the case of State of Odisha Vrs. Surama Manjari Das in W.P.(C) No.15763 of 2021 dismissed on 16.07.2021.

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government departments. Or alternatively, their duties and responsibilities were the same as of other posts with different designations, but they were placed in a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of ―equal pay for equal work‖ was invoked and considered, it would be just and appropriate to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of ―equal pay for equal work‖. Our consideration, has led us to the following deductions:

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42.1. The ―onus of proof‖ of parity in the duties and responsibilities of the subject post with the reference post under the principle of ―equal pay for equal work‖ lies on the person who claims it. He who approaches the court has to establish that the subject post occupied by him requires him to discharge equal work of equal value, as the reference post (see Orissa University of Agriculture & Technology Vrs. Manoj K. Mohanty, (2003) 5 SCC 188, UT Chandigarh, Admn. Vrs. Manju Mathur, (2011) 2 SCC 452, SAIL Vrs. Dibyendu Bhattacharya, (2011) 11 SCC 122 and National Aluminium Co. Ltd. Vrs. Ananta Kishore Rout, (2014) 6 SCC 756).

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42.2. The mere fact that the subject post occupied by the claimant is in a ―different department‖ vis-à-vis the

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reference post does not have any bearing on the determination of a claim under the principle of ―equal pay for equal work‖. Persons discharging identical duties cannot be treated differently in the matter of their pay, merely because they belong to different departments of the Government (see Randhir Singh Vrs. Union of India, (1982) 1 SCC 618 and D.S. Nakara Vrs. Union of India, (1983) 1 SCC 305).

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42.3. The principle of ―equal pay for equal work‖, applies to cases of unequal scales of pay, based on no classification or irrational classification (see Randhir Singh Vrs. Union of India, (1982) 1 SCC 618). For equal pay, the employees concerned with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see Federation of All India Customs and Central Excise Stenographers Vrs. Union of India, (1988) 3 SCC 91, Mewa Ram Kanojia Vrs. All India Institute of Medical Sciences, (1989) 2 SCC 235, Grih Kalyan Kendra Workers‘ Union Vrs. Union of India, (1991) 1 SCC 619 and S.C. Chandra Vrs. State of Jharkhand, (2007) 8 SCC 279).

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42.4. Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay and cannot claim the benefit of the principle of ―equal pay for equal work‖ (see Randhir Singh Vrs. Union of India, (1982) 1 SCC 618, State of Haryana Vrs. Haryana Civil Secretariat Personal Staff Assn., (2002) 6 SCC 72 and Hukum

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Chand Gupta Vrs. ICAR, (2012) 12 SCC 666). Therefore, the principle would not be automatically invoked merely because the subject and reference posts have the same nomenclature.

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42.5. In determining equality of functions and responsibilities under the principle of ―equal pay for equal work‖, it is necessary to keep in mind that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see Federation of All India Customs and Central Excise Stenographers Vrs. Union of India, (1988) 3 SCC 91 and SBI Vrs. M.R. Ganesh Babu, (2002) 4 SCC 556). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of ―equal pay for equal work‖ (see State of U.P. Vrs. J.P. Chaurasia, (1989) 1 SCC 121 and Grih Kalyan Kendra Workers‘ Union Vrs. Union of India, (1991) 1 SCC 619).

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42.6. For placement in a regular pay scale, the claimant has to be a regular appointee. The claimant should have been selected on the basis of a regular process of recruitment. An employee appointed on a temporary basis cannot claim to be placed in the regular pay scale (see Orissa University of

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Agriculture & Technology Vrs. Manoj K. Mohanty, (2003) 5 SCC 188).

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42.7. Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay scales. Such as — ―selection grade‖, in the same post. But this difference must emerge out of a legitimate foundation, such as — merit, or seniority, or some other relevant criteria (see State of U.P. Vrs. J.P. Chaurasia, (1989) 1 SCC 121).

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42.8. If the qualifications for recruitment to the subject post vis-à-vis the reference post are different, it may be difficult to conclude that the duties and responsibilities of the posts are qualitatively similar or comparable (see Mewa Ram Kanojia Vrs. All India Institute of Medical Sciences, (1989) 2 SCC 235 and State of W.B. Vrs. Tarun K. Roy, (2004) 1 SCC 347). In such a case the principle of ―equal pay for equal work‖ cannot be invoked.

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42.9. The reference post with which parity is claimed under the principle of ―equal pay for equal work‖ has to be at the same hierarchy in the service as the subject post. Pay scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see Union of India Vrs. Pradip Kumar Dey, (2000) 8 SCC 580 and Hukum Chand Gupta Vrs. ICAR, (2012) 12 SCC 666).

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42.10. A comparison between the subject post and the reference post under the principle of ―equal pay for

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equal work‖ cannot be made where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see Harbans Lal Vrs. State of H.P., (1989) 4 SCC 459). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see Official Liquidator Vrs. Dayanand, (2008) 10 SCC 1).

¶164

42.11. Different pay scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of ―equal pay for equal work‖ would not be applicable. And also when the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see SBI Vrs. M.R. Ganesh Babu, (2002) 4 SCC 556).

¶165

42.12. The priority given to different types of posts under the prevailing policies of the Government can also be a relevant factor for placing different posts under different pay scales. Herein also, the principle of ―equal pay for equal work‖ would not be applicable (see State of Haryana Vrs. Haryana Civil Secretariat Personal Staff Assn., (2002) 6 SCC 72).

¶166

42.13. The parity in pay, under the principle of ―equal pay for equal work‖, cannot be claimed merely on the ground that at an earlier point of time the subject post and the reference post, were placed in the same

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pay scale. The principle of ―equal pay for equal work‖ is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (see State of W.B. Vrs. W.B. Minimum Wages Inspectors Assn., (2010) 5 SCC 225).

¶170

42.14. For parity in pay scales under the principle of ―equal pay for equal work‖, equation in the nature of duties is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see U.T. Chandigarh, Admn. Vrs. Manju Mathur, (2011) 2 SCC 452).

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42.15. There can be a valid classification in the matter of pay scales between employees even holding posts with the same nomenclature i.e. between those discharging duties at the headquarters, and others working at the institutional/sub-office level (see Hukum Chand Gupta Vrs. ICAR, (2012) 12 SCC 666), when the duties are qualitatively dissimilar.

¶172

42.16. The principle of ―equal pay for equal work‖ would not be applicable, where a differential higher pay scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on

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account of lack of promotional avenues (see Hukum Chand Gupta Vrs. ICAR, (2012) 12 SCC 666).

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42.17. Where there is no comparison between one set of employees of one organisation, and another set of employees of a different organisation, there can be no question of equation of pay scales under the principle of ―equal pay for equal work‖, even if two organisations have a common employer. Likewise, if the management and control of two organisations is with different entities which are independent of one another, the principle of ―equal pay for equal work‖ would not apply (see S.C. Chandra Vrs. State of Jharkhand, (2007) 8 SCC 279 and National Aluminium Co. Ltd. Vrs. Ananta Kishore Rout, (2014) 6 SCC 756).

¶177

***

¶178

60. Having traversed the legal parameters with reference to the application of the principle of ―equal pay for equal work‖, in relation to temporary employees (daily-wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the employees concerned (before this Court), were rendering similar duties and responsibilities as were being discharged by regular employees holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of ―equal pay for equal work‖ summarised by us in para 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say

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so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals were appointed against posts which were also available in the regular cadre/establishment. It was also accepted that during the course of their employment, the temporary employees concerned were being randomly deputed to discharge duties and responsibilities which at some point in time were assigned to regular employees. Likewise, regular employees holding substantive posts were also posted to discharge the same work which was assigned to temporary employees from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State that any of the temporary employees would not be entitled to pay parity on any of the principles summarised by us in para 42 hereinabove. There can be no doubt, that the principle of ―equal pay for equal work‖ would be applicable to all the temporary employees concerned, so as to vest in them the right to claim wages on a par with the minimum of the scale pay of regularly engaged government employees holding the same post.‖

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4.3. Relying on the decision of the Hon‘ble Supreme Court in the case of State of Punjab Vrs. Jagjit Singh, (2017) 1 SCC

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148 , learned Advocate for the petitioner submitted that the principle decided in the said case is ―equal pay for equal work‖ and temporary employees cannot be discriminated. In Daily Rated Casual Labourers Vrs. Union of India, (1988) 1 SCC 122 , the application of principle of ―equal pay for equal work‖ in relation to temporary employees, namely, daily wage employees, ad hoc appointees and employees appointed on casual basis and contractual employees has been propounded. On the same principle, it is contended by Sri Bhabani Sankar Tripathy, learned Advocate that the present writ petitioners are entitled to identical treatment.

¶186

4.4. It is, therefore, submitted by learned counsel that the petitioners are entitled to the relief claimed for in the writ petition in terms of settled principles read with the Finance Department Office Memorandum dated 15.05.1997.

¶187

4.5. He further relied on the decision of the Hon‘ble Supreme Court in The State of Gujarat Vrs. Talsibhai Dhanjibhai Patel, vide order dated 18.02.2022 in SLP(C) No.1109 of 2022 [2022 SCC OnLine SC 2004] , wherein the Hon‘ble Supreme Court of India observed as follows:

¶188

―It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered

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by the respondent are ad hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand.

¶192

In the present case, the High Court has not committed any error in directing the State to pay pensionary benefits to the respondent who has retired after rendering more than 30 years service.

¶193

Hence, the Special Leave Petition stands dismissed.

¶194

Pending application(s), if any, shall stand disposed of.‖

¶195

4.6. He also placed reliance on the decision of the Hon‘ble Supreme Court in the case of Prem Singh Vrs. State of Uttar Pradesh, (2019) 10 SCC 516, wherein it has been observed as follows:

¶196

―36. There are some of the employees who have not been regularised in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularised under the Government instructions and even as per the decision of this Court in State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1. This Court in the said decision has laid down that in case services have been rendered for

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more than ten years without the cover of the Court's order, as one-time measure, the services be regularised of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularised. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension. ‖

¶200

4.7. Thus, Sri Bhabani Sankar Tripathy, learned Advocate would submit that on the principles laid down in the aforesaid judgements, the petitioners having been brought to the regular establishment, the period served as casual labourer in Arboriculture Organisation prior to regularisation in service should be counted for the purpose of considering eligibility for pension, gratuity and other retirement benefits.

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5. Sri Sailaza Nandan Das, learned Additional Standing Counsel for the opposite parties opposing the

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contentions of the learned counsel for the petitioners submitted that the casual labourer cannot be treated at par with the benefit conferred on NMR/DLR/JobContract employee. Therefore, he submitted that no aid can be availed from Finance Department Resolution No.22754/F., dated 15.05.1997. The Finance Department Office Memorandum No.49296, dated 12.12.1997 and No.24989/F., dated 08.06.1998 are relevant for purpose of counting of service rendered under the job-contract establishment towards pension and gratuity. Since the petitioners have never worked in job-contract establishment, they cannot claim relief under said Office Memoranda.

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5.1. Learned Additional Standing Counsel submitted that Sri Chitta Ranjan Das and Sri Trilochan Mallick both belonged to Scheduled Caste Category but the petitioner No.1 comes under General Category and he was absorbed in the regular post of SAHAKARI MALI after vacancy arose in the said Category. Therefore, no error could be imputed against the opposite party No.1 in absorbing the petitioner No.1.

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5.2. He pointed out that the claim of the petitioner No.1 equating him with that of the work-charged employees is fallacious and unwholesome. The work-charged employees are engaged in Engineering Works

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Department/Water Resources Department and nature of job is totally different from that of casual labourer of Arboriculture Organisation. Therefore, the Finance Department had formulated separate Guidelines for the employees of the work-charged establishment vis-à-vis NMR/DLR/Job-Contract employees and for casual labourers.

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5.3. Opposing the citations submitted by the learned counsel for the petitioners in Hadu Gouda (supra) and Jugal Kishore Sahoo (supra), learned Additional Standing Counsel submitted that the said judgments are applicable in the context of the work-charged employees not for the casual labourers like those of the present petitioners as is apparent from the Order dated 12.12.2019 in State Government of Odisha Vrs. Mithuram Bhoi, W.P.(C) No. 9099 of 2016 . The aforesaid judgments/ orders are not applicable to the petitioners, who were casual labourers.

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Analysis and discussion:

¶212

6. In order to appreciate the factual background of the matter it is felt apt to set out the written submission/explanation as put forth by the learned Additional Standing Counsel, Sri Tarun Patnaik (submitted on 16.08.2024):

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―The petitioner initially joined as casual labourer in Arboriculture Organisation of State Capital Nursery, Bhubaneswar (Arboriculture Organisation) under General Administration & Public Grievance Department (GA Department) on 15.06.1988. The Government vide GA Department Office Order No. 3815 dated 21.04.2011 [Annexure-3, Page 21, Writ Petition) was pleased to finalize the seniority list of casual labourers working under Arboriculture Organisation, wherein the name of the petitioner was found at Sl. No. 62 indicating the date of engagement of the Petitioner as casual labourer as 15.06.1988.

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While continuing in service, 97 casual labourers/ workers, including the petitioners, engaged in Arboriculture. Organisation prior to 12.04.1993 and fulfilling the conditions of engagement stipulated in Finance Department Resolution No. 31745/F dated 04.09.2012 (Resolution dated 04.09.2012) were conferred with ‗TEMPORARY STATUS‘ with effect from 04.09.2012 vide Office Order No. 3159 dated 02.02.2013 of opposite party No. 1 [Annexure-4, Page 26 Writ Petition);

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a. Pertinently, the Resolution dated 04.09.2012 [Annexure-A/3, Page 11] Counter Affidavit OPl-3) entailed a scheme for grant of ‗TEMPORARY STATUS‘ and casual/daily wage labourers engaged in different Government establishments prior to 12.04.1993 against regular Group-‗D‘ vacancies.

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b. Clause 4 of the Resolution dated 04.09.2012 stipulated that such casual/daily wage labourers would be conferred with ‗TEMPORARY STATUS‘ in the first instance and then provided for their absorption

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against regular Group-‗D‘ vacancies as and when the vacancies arise.

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c. Furthermore, Clause 5(b)(vii) which is relevant for adjudication of the present lis at hand, categorically stated that:

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‗5.(b)(vii)

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The period of service rendered by a person as casual/daily wage labourer and the period of service rendered with ‗TEMPORARY STATUS‘ will not be counted towards retirement and other service benefits in case of subsequent absorption against a regular vacant post, as per para-6 of the Scheme.‘

¶225

Opposite Party No.1 issued Office Order No. 2859 dated 04.02.2015 absorbing 56 casual workers, including the petitioners against the existing vacant posts in the Group‗D‘ posts of SAHAKARI MALI of the Arboriculture Organisation [Annexure-7, Page 33 Writ Petition). The said Order also stated:

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The absorption shall be taken into account from the date of their joining.

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On absorption in the regular establishment, they shall be eligible to draw the minimum the Pay Band with Grade Pay attached to the corresponding posts and other allowances admissible under rule from time to time. But seniority/gradation will be maintained as per common list.

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The dales of absorption shall be reckoned as their first appointment to the service for the purpose of retirement & other service benefits.

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Aggrieved by the date of absorption with effect from 04.02.2015, some of the petitioners made representations seeking absorption to be effective from 01.03.2014 and to count their past casual service for the purpose of pension.

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However, this request was rejected by opposite party No.1 vide Office Order No. 25225 dated 07.09.2019 in light of the Resolution dated 04.09.2012 [Annexure-8, page 37 Writ Petition]. It is pertinent to mention that the said order has not been challenged in the present writ.

¶233

The petitioner No.1 submitted another representation dated 20.04.2020 seeking to count their past service as a casual labourer for the purposes of pension [Annexure-9, page 38 Writ Petition]. It is a fact that apart from the petitioner No.1 no other person has made a representation after the order dated 07.09.2019 to the opposite parties seeking to count their past service as a casual labourer for the purposes of pension.

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Meanwhile, the petitioner No.1 attained the age of superannuation and was consequently relieved of his duties with effect from 31.05.2020. Consequently, the petitioner discharged the services in a regular establishment for a period of around 5 years only making him ineligible for grant of minimum pension. [Annexure10, page 40 Writ Petition].‖

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7. With the aforesaid factual position as narrated by the learned Additional Standing vis-a-vis writ petition, when this Court is called upon to examine whether the prayer(s) made by the petitioners in the writ petition that their period of service spent as casual labourers should have been counted for the purpose of pension, gratuity

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and other retirement benefits in terms of decisions of this Court rendered in State of Odisha Vrs. Hadu Gouda, OJC No.8149 of 2000, vide Judgment dated 02.04.2018; Jugal Kishore Sahoo, OJC No.12017 of 2000, vide order dated 16.04.2019 and Rabindra Kumar Jena Vrs. State of Odisha, W.P.(C) No.36009 of 2021 & Batch, vide Judgment dated 07.12.2022 can be acceded to .

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7.1. The main plank of argument of Sri Bhabani Sankar Tripathy, learned counsel is that the petitioners, casual labourers, being regularised in service belatedly, their past services should have been counted for the purpose of retirement benefits, like pension and gratuity, as they are similarly circumstanced with those petitioners in the aforenoted decisions of this Court whose services were regularised later and their past services were directed to be counted for the purpose of grant of pension, gratuity and other retirement benefits.

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7.2. Nonetheless, the petitioners by way of making prayers in the writ petition restricted such examination to the extent whether the decisions rendered in State of Odisha Vrs. Hadu Gouda, OJC No.8149 of 2000, vide Judgment dated 02.04.2018 and Jugal Kishore Sahoo, OJC No.12017 of 2000, vide order dated 16.04.2019 are applicable to the present fact-situation of the case. This Court is to find out the circumstances under which the

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petitioners in the decisions relied upon by the petitioners are identical to the present case so as to grant the relief(s) as claimed for in the prayer(s) of the writ petition.

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7.3. Order dated 12.12.2019 of a Division Bench of this Court in State Government of Odisha Vrs. Mithuram Bhoi, W.P.(C) No. 9099 of 2016, wherein decisions rendered in State of Odisha Vrs. Hadu Gouda, OJC No.8149 of 2000, vide Judgment dated 02.04.2018 and Jugal Kishore Sahoo, OJC No.12017 of 2000, vide order dated 16.04.2019 have been referred to, runs as follows:

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―By way of this writ petition, the petitioners-State have challenged the order dated 08.09.2015 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.2520(C) of 2009. Looking into the age of opposite party No.1, namely, Shri Mithuram Bhoi, who is more than 80 years and in the interest of justice, without entering into the merits of the matter, we are of the considered opinion that the State Government shall follow the order passed by this Court on 02.04.2018 in OJC No. 8149 of 2000 (State of Orissa Vrs. Hadu Gouda) and order dated 16.04.2019 passed in OJC No. 12017 of 2000 (State of Orissa Vrs. Jugal Kishore Sahoo), wherein it has been held that where work-charged employees prayed for regularization, they shall be regularized at least for one day before superannuation to entitle them minimum scale of pay and accordingly, pension and other retiral benefits be released in their favour.

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This writ petition is disposed of directing the opposite parties to regularize the services of the opposite party no.1 against any sanctioned post and he shall be granted minimum scale of pay as well as pension and other retiral benefits taking into consideration the period during which he discharged his service as a work-charged employee. Actual pension shall be paid to the opposite party No.1 from 01.02.2020 and all arrears will be paid to him by 2 01.04.2020. It is made clear that if the amount is not paid, the opposite party No.1 will be entitled @ 9% interest from the date of his entitlement.

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With the above observation and direction, the writ petition is allowed to the aforesaid extent.

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This order will not be treated as a precedent. ‖

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7.4. Though in the prayer(s) the petitioner has mentioned about application of State of Odisha Vrs. Hadu Gouda, OJC No.8149 of 2000, vide Judgment dated 02.04.2018 and Jugal Kishore Sahoo, OJC No.12017 of 2000, vide order dated 16.04.2019, at the time of hearing the learned counsel having not furnished copies of said decisions, relied on the order passed in Mithuram Bhoi (supra), and submitted that this Court in Division Bench has followed the ratio of said cases and decided in favour of Mithuram Bhoi. Therefore, he contended that the prayer made in the present writ petition does require favourable consideration as claimed by the petitioner. On careful reading of Mithuram Bhoi (supra), it is perceived that in the said cases, viz., Hadu Gouda

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(supra) and Jugal Kishore (supra) the petitioners were work-charged employees, and in the case of Mithuram Bhoi (supra) this Court while deciding the matter in favour of the petitioner therein, categorically stated that ― without entering into merits of the matter ‖ and ― This order will not be treated as a precedent‖. Thus, the decisions of this Court neither in Hadu Gouda (supra) nor Jugal Kishore Sahoo (supra) or Mithuram Bhoi (supra) can have any assistance to the petitioner.

¶255

8. Sri Bhabani Sankar Tripathy, learned counsel referred to Annexure-11 of the writ petition submitted that coordinate bench of this Court in Rabindra Kumar Jena Vrs. State of Odisha, W.P.(C) No.36009 of 2021, and batch, vide Judgment dated 07.12.2022 wherein the following has been observed:

¶256

―4. These writ petitions have been filed by the Petitioners seeking a direction to the Opposite Parties to grant pension, gratuity and other post retiral benefits as due and admissible to them by counting their entire period of service including the service period as NMR for the purpose of pension with a further direction to the Opposite Parties to pay unutilized leave salary by counting the entire period of service from the date of initial joining.

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***

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7. It is contended by the learned counsel for the Petitioners that position of law is no more res integra as has been laid down by the judgment delivered by Hon‘ble the Apex Court as well as this Court to the effect that the period of service rendered as NMR shall be taken into consideration while calculating the pensionary benefits which is due and admissible to an employee who worked under a work charge establishment. Therefore, applying the aforesaid principle to the facts of the Petitioners case, who have rendered 39 years of continuous service starting from 13.11.1981 upto 30.06.2021, the Petitioners are entitled to pensionary benefits. In the aforesaid context, learned counsel for the Petitioners also relied upon the decisions rendered by this Court in State of Odisha Vrs. Abhaya Ch. Dash (W.P.(C) No.1473 of 2014 decided on 7.3.2014 by a Division Bench), Abhaya Charan Mohanty Vrs. State of Odisha & Ors. (WPC (OAC) No.3494 of 2013 decided on 14.07.2021) and Chandra Nandi Vrs. State of Orissa and others, reported in 2014 (I) OLR 734 decided by a Division Bench of this Court, which was eventually carried in appeal to the Hon‘ble Apex Court at the instance of the State and the Hon‘ble Supreme Court has dismissed the appeal and upheld the decision rendered by this Court in the case of Chandra Nandi (supra).

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***

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11. Further, taking into consideration the period as NMR employee for the purpose of calculation of pensionary benefits, learned counsel for the

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Petitioners relied upon the judgment in the case of Prem Singh Vrs. State of Utter Pradesh and Others, reported in (2019) 10 SCC 516 wherein the Hon‘ble Supreme Court had an occasion to consider the eligibility of work-charged employees to get pensionary benefits. In the context of sanction of pensionary benefits to work charged employees, the Hon‘ble Supreme Court has observed that some of the employees, who have not been regularized in spite of the fact that they have rendered the services for 30 years or more, furthermore some of them have been superannuated and since they have worked in the work-charged establishment and not against any particular project, their services ought to have been regularized under the Government instructions and even as per the Umadevi, reported in (2006) 4 SCC 1.

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12. Moreover, in the case of Umadevi (supra), the Hon‘ble Supreme Court has held that the employees, who have rendered more than ten years of service, were directed to be treated as regular employees subject to the rider that they shall not be entitled to any dues in respect of difference in wages had they been continued in service regularly before attaining the age of superannuation. Further, in the said judgment, it was made clear that they shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for the purpose of calculation of pensionary benefits .

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14. To decide the issue involved in the present case, i.e. with regard to applicability of OCS Pension Rules, 1992, the factual background of the present case is required to be re-visited at this stage. The petitioner was initially appointed as NMR, Wireman on 13.11.1981 and was posted against the regular vacant post under GED NoIII, Sambalpur. Thereafter, the petitioner was brought over to regular establishment vide Order No.6175 dated 31.10.2009. As such, the petitioner has put in service for a total period of 39 years out of which, 10 years and five months in regular pensionable establishment. Thereafter, he took retirement from service w.e.f. 30.06.2021, i.e., on attaining the age of superannuation. After retirement although the petitioner submitted his pension papers, the same was returned on the ground that the petitioner is not eligible to get pension as he was appointed in regular service in the year 2009 i.e. after the amendment to the OCS Pension Rules in the year 2005 by virtue of notification dated 17.09.2005. So far the eligibility of the petitioner to get pensionary benefits is concerned, the same has to be determined by referring to various provisions of OCS Pension Rules, 1992. ***

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In view of the aforesaid Sub-rule(4) all persons appointed under the Government of Odisha from 01.01.2005 shall not be allowed for pension under Rule-3(ii) of the aforesaid Rules, who shall be

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covered by defined contribution pension scheme as specified in the said sub-rule.

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18. On a careful analysis of facts, this Court is convinced that the petitioner was initially appointed in the work charged establishment and that the nature of work he was performing was regular and perennial in nature. After working for almost three decades without any break and interpretation that too for a paltry amount, the service of the petitioner was regularized only w.e.f. 31.10.2009. This conduct definitely attracts the penal provision for exploitation of work force.

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***

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24. In Prem Singh Vrs. State of U.P. and others, reported in (2019) 10 SCC 516, it was observed that appointment of work-charged employee not made for a particular project work and the nature of work was regular and perennial in nature on a monthly salary where employees were required to cross-efficiency bar and were also subjected to transfer like regular employees, as such, their services were not qualitatively different from regular employees and hence the Hon‘ble Supreme Court further held that it would be unfair on the part of the State Government to take work from them for periods depriving them of their due emolument, during period they works on less salary in work charged establishment and also declining to count that period as qualifying service for pensionary benefits which amounts to adopting exploitative

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device and it was further held that in the said case the service rendered in work charged establishment directed to be treated as qualifying service for grant of pension. In the aforesaid reported cases, the Hon‘ble Supreme Court also directed to count service rendered in work charged establishment for the purpose of pensionary benefits by going to the extent of reading down Rule-3(8) of U.P. retirement benefit Rules and striking down para-6.6.9 and regulation of Civil Service Regulation of U.P.

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25. In the case at hand, the services rendered by the Petitioners in work charge establishment also qualifies for the purpose of calculating their pensionary benefits under Rule18(3) of the Rules, 1992. Additionally, the newly added Sub-rule(4) which applied to the appointments made after 01.01.2005 will have no application to the case of the Petitioners, who were admittedly appointed in the work charged establishment on 13.11.1981 and subsequently retired from service w.e.f. 30.06.2021. Moreover, in absence of any rule specifying any particular category of appointment in the newly added sub-rule (4) to Rule-3, it cannot be said that the petitioners were not appointed prior to the cut-off date i.e. 01.01.2005. Therefore, by taking into consideration, the initial date of appointment i.e. 13.11.1981 as NMR Wiremen although on NMR basis , it cannot be said that the petitioners were appointed prior to 01.01.2005 and, as such, the embargo Rule-3(4) would be³ [not] attracted to the facts of the petitioners case. Moreover, similarly situated employees, who were initially engaged

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3 Inserted by virtue of corrigendum vide Order dated 07.11.2023.

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in work charged establishment and were subsequently regularized have also been extended with pensionary benefits under the OCS Pension Rules, 1992. In this context, learned counsel for the petitioners has also filed several office orders under Annexure-11 series to the writ petition.‖

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8.1. Having meticulously gone through the said judgment it is ascertained that this Court in the aforesaid case Rabindra Kumar Jena (supra) was considering whether pension and retirement benefits could be extended to NMR employees in work-charged establishment after their service has been brought over to regular establishment. Furthermore, this Court observed that the petitioner had put in more than 10 years in pensionable establishment. Nevertheless, in the instant case the position is completely different and distinctive as the petitioners herein were casual labourers and are regularised as per seniority list and appointed against vacant post as and when arose.

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8.2. The learned Additional Standing Counsel has drawn attention of this Court to Rule 3 of the Odisha Civil Services (Pension) Rules, 1992, which stands thus:

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―3. Application.—

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(1) Save as otherwise provided in these rules, these rules shall apply to Government servants, appointed

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to posts and services in connection with the affairs of the State which are borne on pensionable establishment, but shall not apply to—

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(a) Persons in casual and daily rated employment ;

¶295

(b) Persons paid from contingencies;

¶296

(c) Persons entitled to the benefit of Contributory Provident Fund;

¶297

(d) Members of the All India Services;

¶298

(e) Persons employed on contract except when the contract provides otherwise;

¶299

(f) Persons whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force.

¶300

(2) A Government servant who is transferred permanently to a service or post to which these rules apply from a service or post to which these rules do not apply shall become subject to these rules: Provided that it shall be open to him, within six months of the date of issue of the order of his permanent transfer, or if he is on leave on the said date, then, within six months of his return from leave, whichever is later, to opt to be governed by the pension rules to which he was subject immediately before the date of his transfer. The option shall be exercised in writing and communicated to the authority making such order of transfer.

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(3) The option, once exercised, shall be final.

¶304

(4) Notwithstanding anything contained in these rules, all persons appointed under the Government of Odisha with effect from 1st day of January, 2005 shall not be eligible for pension as defined under sub-rule (1) of Rule 3 of the said rules but shall be covered by the defined contribution pension scheme as specified below:

¶305

(i) The monthly contribution would be 10% of the salary and Dearness Allowance to be paid by the employee and the Government would also provide a matching contribution. The contribution so made would be deposited in a non withdrawable pension tier-I account. Such funds will be invested by Pension Fund Managers as approved by Pension Fund Regulatory and Development Authority (PFRDA) under different categories of scheme which would be a mix of debt and equity. The fund managers would give out easily understood information about the performance of different investment schemes so that the individual Government employee would be able to make informed choices about which scheme to choose.

¶306

(ii) In addition to the above provision, each individual may also have a voluntary tier-II withdrawable account at his option. This option is provided as General Provident Fund will be withdrawn for employees recruited to the State Government Service with effect from 1st January, 2005. Government will make no

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contribution into this account. In tier –II system, the individual may subscribe 10% of his salary and these assets would be managed through exactly the above procedure. However, the employee would be free to withdraw part or all of second tier of his money at any time. This withdrawable account does not constitute pension investment and would attract no special tax treatment.

¶310

(iii) At the time of retirement, Government servant will receive the lump sum amount of 60% deposited in pension tier-I account as pension wealth and it is mandatory to the Government servant to invest remaining 40% of his pension wealth to purchase as annuity from an Insurance Regulatory and Development Authority regulated life insurance company. The annuity shall provide for pension for the life time of the employee and his dependent parents and his spouse at the time of retirement. The individual would receive lump sum of the remaining pension wealth, which he would be free to utilise in any manner. Individuals would have the flexibility to leave the pension system prior to age of 58 years or 60 years as the case may be. In such case the mandatory annuitisation would be 80% of the pension wealth. Provided that above provision shall not apply to the persons who are appointed under job contract and work charged establishments prior to 01.01.2005 and brought over to the regular establishment on or after 01.01.2005.‖

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¶313

8.3. Reference is also made to Rule 11 of the Odisha Civil Services (Pension) Rules, 1992, which reads as under:

¶314

―11. Subject to the provisions hereinafter contained, the service of a Government servant shall qualify for pension if it conforms to the following three conditions, namely:

¶315

(1) The service must be under Government,

¶316

(2) The employment must be in a pensionable establishment/post , and

¶317

(3) The service must be paid by Government.‖

¶318

8.4. Rule 13 of the Odisha Civil Services (Pension) Rules speaks that ―The service of a Government servant does not qualify for pension unless he is appointed and his duties and pay are regulated by the Government or under orders of Government.‖

¶319

8.5. Sri Sailaza Nandan Das, learned Additional Standing Counsel referring to written submissions filed by Sri Tarun Patnaik, learned Additional Standing Counsel urged that the claim of pension, gratuity and retirement benefit made by the petitioner cannot be extended inasmuch as the Odisha Civil Services (Pension) Rules, 1992 does not provide for such a provision for the casual labourers who are regularised on the basis of list of seniority drawn up in consonance with the Finance Department Resolutions.

¶320

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8.6. Since one of the requirements under the Odisha Civil Services (Pension) Rules, 1992 is that the employment must be against a pensionable establishment or post and the persons engaged in casual and daily rated employment are categorically excluded from the scope of pensionable establishment, the period of service in the temporary or casual employment cannot be counted as employment in a pensionable establishment. Conjoint reading of provisions of Rule 3, Rule 11 and Rule 13 of the Odisha Civil Services (Pension) Rules, 1992, unambiguously hints at that the entire period of casual service cannot be counted for the purpose of granting them pension, gratuity and other retirement benefits.

¶323

8.7. Having noticed provisions of Rule 3 read with other provisions of the Odisha Civil Services (Pension) Rules, it can be expressed that as said rule has made these rules inapplicable to ―persons in casual and daily rated employment‖, the averment and contention of the petitioner in the writ petition to extend the benefit of pension, gratuity and retirement benefit to the present petitioners as is made available to the petitioners in Rabindra Kumar Jena (supra) is dispelled.

¶324

9. Learned counsel for the petitioner next contended that since the petitioners have worked substantially for long period in the Arboriculture Organisation, they are

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entitled to be considered for grant of pension, gratuity and other retirement benefits compassionately and the opposite parties-authorities are required to liberally construe the provisions of the Odisha Civil Services (Pension) Rules, in view of Order dated 18.02.2022 of the Hon‘ble Supreme Court of India in the case of State of Gujarat Vrs. Talsibhai Dhanjibhai Patel, Petition for Special Leave to Appeal (C) No.1109 of 2022 [reported at 2022 SCC OnLine SC 2004].

¶328

9.1. The order in Talsibhai Dhanjibhai Patel, 2022 SCC OnLine SC 2004 runs as follows:

¶329

―1. It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc , he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand.

¶330

2. In the present case, the High Court has not committed any error in directing the State to pay pensionary benefits to the respondent who has retired after rendering more than 30 years service.

¶331

3. Hence, the Special Leave Petition stands dismissed.

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4. Pending application(s), if any, shall stand disposed of.‖

¶335

9.2. This case also would not help the petitioners in claiming the nature of reliefs involved in the matter as Talsibhai Dhanjibhai Patel‘s case (supra) related to ad hoc employees, who cannot be equated with casual labourers (present petitioners). This Court is not oblivious of the judgment dated 05.03.2024 rendered in the case of State of Odisha Vrs. Banamali Samal, 2024 SCC OnLine Ori 1092 (Division Bench), relied on by the Additional Standing Counsel , wherein it has been observed as follows:

¶336

―11. The first and foremost question that we are required to consider is whether the respondents can be said to be qualified to claim the benefits under the Odisha Civil Services (Pension) Rules. It is manifest from Rule 3 of the Odisha Civil Services (Pension) Rules that the said rule applies to the Government servants appointed in posts and services in connection with the affairs of the State which are borne on pensionable establishment. The respondents were employees of the agencies registered under the Societies Act. were not Government

¶337

Registration They servants at any point in time. In the case of Satrucharla Chandrasekhar Raju Vrs. Vyricherla Pradeep Kumar Dev, (1992) 4 SCC 404 the Supreme Court, though, while considering an election dispute needed to deal with the question as to whether the

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members of the Government body of ITDA were the officials holding the posts in the Government. After having considered in detail the background of ITDA, the Supreme Court held in paragraph 29 as under:

¶341

‗29. What emerges from the above discussion is that the Government has some control over the ITDA which is set up as a project, since it provides funds and sanctions the posts : the District Collector is appointed as Project Officer and some officers are ex-officio members of the ITDA which carries out the object of providing the compulsory education in tribal areas. But the ITDA is a registered Society having its own constitution. Though the Project Officer is the District Collector, he acts as a different entity. The power to appoint or to remove teachers is not with the Government but with the Project Officer. The Government may have control over the appointing authority but has no direct control over the teachers. The small post that appellant holds in ITDA is only that of a Teacher who is directly under the control of the Project Officer. In such a situation the question of any conflict between his duties and interests as an elected member does not arise since it cannot be said that he, as a teacher, can be subjected to any kind of pressure by the Government which has neither the power to appoint him nor to remove him from service. Taking a practical view of the substance of these factors into consideration, we are of the view that the appellant cannot be held to be

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holding an office of profit under the Government.‘

¶345

12. It would be apt to notice at this juncture certain relevant provisions of Odisha Civil Services (Pension) Rules, Rule 11 of which is of significance as it lays down as to which service shall qualify for pension under said Rules. The said Rule reads thus: ***

¶346

13. Rule 13 of the Odisha Civil Services (Pension) Rules further provides that the service of a Government servant does not qualify for pension unless he is appointed and his duties and pay are regulated by the Government or under orders of the Government.

¶347

14. The law is well settled that the entitlement of a pension is derived from the rules governing the service conditions of an employee.

¶348

15. It would be useful at this juncture to notice also the Supreme Court‘s decision in the case of The State of Maharashtra Vrs. Bhagaban and other connected matters reported in (2022) 4 SCC 193. In the said case, the employees of Water and Land Management Institute (WALMI) registered under the Societies Registration Act had claimed pension, which was allowed by the Bombay High Court directing the State Government to extend the pensionary benefits to them. The Governing Council of WALMI, in that case, had framed WALMI Establishment Rules which provided inter alia that service rules made by the Government of Maharashtra for its employees shall apply to the employees of the institute unless they were repugnant to the rules made or might be made by

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the institute. The Supreme Court after having a detailed discussion held in paragraphs 29 to 31 as under:

¶352

‗29. In the present case, WALMI being an autonomous body, registered under the Societies Registration Act, the employees of WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules. Therefore, as such a conscious policy decision has been taken not to adopt the Pension Rules applicable to the State Government employees; that the State Government has taken such a policy decision in the year 2005 not to extend the pensionary benefits to the employees of the aided institutes, boards, corporations, etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government. Considering the aforesaid facts and circumstance, the High Court is not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity.

¶353

30. The observations made by the High Court that as the salary and allowances payable to the employees of WALMI are being paid out of the Consolidated Fund of the State and/or that the

¶354

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WALMI is getting grant from the Government are all irrelevant considerations, so far as extending the pensionary benefits to its employees is concerned. WALMI has to run its administration its own from financial resources. WALMI has no financial powers of imposing any tax like a State and/or the Central Government and WALMI has to depend upon the grants to be made by the State Government.

¶357

31. Now, so far as the observations made by the High Court that the amount available with WALMI and deposited with EPF towards the employee‘s contribution itself is sufficient to meet the financial liability of the pensionary benefits to the employees and, therefore, there is no justification and/or reasonable basis for the State Government to refuse to extend the benefit of pension to the retired employees of WALMI is concerned, it is to be noted that merely because WALMI has a fund with itself, it cannot be a ground to extend the pensionary benefit. Grant of pensionary benefits is not a one-time payment. Grant of pensionary benefits is a recurring monthly expenditure and there is a continuous liability in future towards the pensionary benefits. Therefore, merely because at one point of time, WALMI might have certain funds does not mean that for all times to come, it can bear such burden of paying pension to all its employees. In any case, it is ultimately for the State Government and the Society (WALMI) to take their own

¶358

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policy decision whether to extend the pensionary benefits to its employees or not. The interference by the judiciary in such a policy decision having financial implications and/or having a cascading effect is not at all warranted and justified. ‘

¶361

16. In the wake of the above-noted discussions, we reach the following definite conclusions:

¶362

(i) The respondents do not qualify to get the benefit of the Odisha Civil Services (Pension) Rules, 1992, given the unambiguous language of Rules 3, 11, and 13 of the said Rules;

¶363

(ii) The respondents cannot be treated to be employees of the Government to qualify for pension under the Odisha Civil Services (Pension) Rules, 1992;

¶364

(iii) The letter dated 24.05.2017 based on which the impugned order has been issued does not contain any decision of the State Government to extend the pensionary benefit to the directly appointed retired staff of ITDAs and Micro Projects. The purpose of the said communication has been mentioned in the letter itself i.e. ―for necessary compilation of the data at this level‖. ***‖

¶365

9.3. The imprimatur of the Hon‘ble Supreme Court of India in State of M.P. Vrs. Hitkishore Goswami, (2015) 11 SCC 199 be referred to, which is this:

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―It is a trite law that a right to claim pension is governed by the statute. An employee has, therefore, no right to claim any benefit in relation to pension de hors the statute.‖

¶369

9.4. This Court may also refer to State of Haryana Vrs. Shakuntala Devi, (2008) 15 SCC 380 wherein it has succinctly been held,

¶370

―Chapter II of Vol. II of the Rules provides for different provisions relating to grant of pension. The distinction between a pensionable establishment and a provident fund establishment must, therefore, be borne in mind. Pension although is not a bounty, the entitlement thereto is only under a statute . Only when the conditions precedent provided for in the statute are fulfilled, an employee would be entitled thereto. ‖

¶371

9.5. Since the conditions stipulated in terms of Rules 3, 11 and 13 are not fulfilled, the petitioners are not entitled to pension, gratuity and other retirement benefit.

¶372

10. It is admitted in the written note of submission dated 20.08.2024 filed by Sri Bhabani Sankar Tripathy, learned Advocate that the petitioners were ―appointed during June, 1988 (prior to 12.04.1993) as evident from the final seniority list dated 21.04.2011 of casual labourers working in the Arboriculture Organisation under General Administration Department in Annexure3 and after rendering 24 years of service they were given TEMPORARI STATUS with effect from 04.09.2012 in

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Annexure-3 and after 3 years were absorbed in regular establishment with effect from 04.02.2015 and thereafter after five years in regular establishment the petitioner Nos.1 to 9, 11 to 14, 16 to 19 have retired from service during 2020 on attaining age of superannuation‖. It is, therefore, accepted, as submitted by the learned Additional Standing Counsel appearing for the opposite parties, that the petitioners have not questioned the date of effect of regularisation in service and no prayer has ever been made to ante-date said date of regularisation. As rightly contended by the learned Additional Standing Counsel that regularisation is not automatic under the Finance Department Resolution and said regularisation in service depends on host of factors, like vacant post, position in the gradation list, financial burden on the State Exchequer, etc.

¶376

10.1. As that be the fact, the learned Advocate for the petitioner placed reliance on a decision of Odisha Administrative Tribunal, Cuttack Bench, Cuttack rendered in the case of Narusu Pradhan Vrs. State of Odisha, O.A. No.1189 (C) of 2006 , which was disposed of on 11.06.2009⁴ , relevant portion of which reads as follows:

¶377

4 Assailing which writ petition, W.P.(C) No.5377 of 2010, being filed by the State of Odisha, this Court dismissed the same on 19.12.2011 with the following observation:

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¶380

―Considering the argument and facts on record and various decisions of this Tribunal, the Hon‘ble High Court and the Hon‘ble Apex Court of India, it is obvious that Government in pursuance of the recommendations of the pay committee issued F.D. Resolution No.F-47/64-4419/F dated 22.01.1965 and No.Pen 7/90-5483 dated 6.3.90 for regularization of services of work charged employees and have, also provided for this in Rule 18(3) of the OCS (P) Rules, 1992. The aforesaid Resolution for amelioration of conditions of service of work charged employees, states that they are to be brought over to the regular establishment after completing live years of continuous service in case the work in of a permanent nature. In the present case, it is admitted that the applicant has already pot in more than 30 years of service with a regular pay scale and depriving him of such benefits at this stage may not be advisable particularly in view of the catena of decisions submitted by release the learned counsel for the applicant, the latest being Ο.A.1869/2001 Nrusingha Charan Sahoo Vrs State of Orissa and others and decided on 15.09.2005 in which the Hon‘ble Tribunal observed as follows:

¶381

‗But the fact remains that persons in work charged establishment though rendered service like persons in the regular establishment are treated as unequal which is not approved by our constitution. Practically keeping in view this objective, the State Govt. from time to time issued

¶382

―Heard learned counsel for the parties. Petitioners, who are functionaries of the State Government have filed the present writ application challenging the order dated 11.06.2009 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.1189 (C) of 2006. We do not find any infirmity in the impugned order to be interfered with. The writ application is accordingly dismissed.‖

¶383

Said matter being carried before the Supreme Court of India in Petition(s) for Special Leave to Appeal (Civil)....../2012 CC 22498/2012 by the State of Odisha, it has been observed vide Order dated 07.01.2013 as follows:

¶384

―Delay condoned. The special leave petition is dismissed‖

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orders giving direction for regularization of different employees as is indicated herein above. So it is expected that the State Govt. should take effective steps for passing appropriate orders for regularization of such work charged employees so that in each case, they are not required to move the Tribunal or the Hon‘ble High Court or the Hon‘ble Supreme Court for their redressal. It is true that such employees cannot be absorbed without sanctioned posts and only on that ground the case of the petitioner could not be considered. But the fact remains that he rendered service in a particular scale of pay which was effective for more than 20 years thereby indicating that for all practical purposes he was rendering service in a regular establishment. But the only gap in such appointment is that the post was not created in the regular establishment. This is to be construed as administrative lapse for which the employed should not suffer. So, it is expected that the State Govt. will take effective steps for regularization of the services of the work charged employees in future and if necessary by way of creating supernumerary posts and thereafter to fix salary on notional basis and direct payment of necessary pensionary benefits on that basis. Pending such decision by the Govt. and keeping in view the case of the present petitioner, I direct the State Govt. to regularize his service in a supernumerary post after absorbing him on completion of live years of service and then to fix his salary on notional basis and thereafter to pass necessary orders for release of pension and other retirement benefits in accordance with law.‘

¶388

Considering all aspects the aforesaid decision is made for ‗ipso facto‘ applicable to this case as the applicant is similarly placed. The respondents are directed to

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regularize the applicant against available post on completion of five years of service in the work charged establishment and fix his pay allowing him notional Increment as due and then pay him pensionary dues taking his notional increments into account as decided in the cases referred to by the learned counsel for the applicant. This task be completed within a period of six months.

¶392

With these orders, the O.A. is disposed of.‖

¶393

10.2. Glance at the aforesaid case, it is apparent that the case of Narusu Pradhan (petitioner therein) turned on the fact that he was work-charged employee. Therefore, the decisions relied on by the petitioners cannot be taken as aid to buttress their claim particularly in view of Rule 3, Rule 11 and Rule 18 of the Odisha Civil Services (Pension) Rules.

¶394

10.3. When it is accepted by the petitioners that they have been absorbed in regular establishment in the year 2015, it being a fresh appointment, no benefit either of seniority or pay protection was given. This fact is ex facie from the Office Order dated 04.02.2015 (Annexure-7) whereby the petitioners have been absorbed against existing vacant posts of Group-D employees, as SAHAKARI MALI. It has been clearly indicated therein that,

¶395

―The dates of absorption shall be reckoned as their first appointment to the service for the purpose of retirement and other service benefits.‖

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This condition in the terms of absorption is in consonance with clause (x) of paragraph 6 of Finance Department Resolution No.31715/F., dated 04.09.2012. Such clause is not under challenge by the petitioners.

¶399

10.4. Support in this respect can be had from the following observation of the Hon‘ble Supreme Court of India in Parmeshwar Nanda Vrs. State of Jharkhand, (2020) 3 SCR 680:

¶400

―16. The judgment in Baliram Singh has attained finality with the judgment of this Court reported as State of Bihar & Ors. Vrs. Baliram Singh & Ors. (2018) 18 SCC 46. In the aforesaid case, the policy decision of absorbing the writ petitioners appointed under the Project contained a clause that the candidates will be treated as fresh appointments and that the earlier services rendered by them shall be calculated for their pension. The writ petitioners before the Patna High Court claimed back wages from the date of their termination till the date they were absorbed. This Court declined the claim of back wages. The Court held as under:

¶401

‗18. In the present case, however, the respondents have neither challenged the termination order after closure of the Non-Formal Education Scheme with effect from 01.04.2001 nor the policy dated 20.05.2005 under which they have been appointed or the appointment letter dated 16.03.2007. Even the appointment letter

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dated 16.03.2007 unambiguously predicates that the appointment was a fresh appointment and the past services would be reckoned only for the purpose of grant of pension and nothing more. Indisputably, the respondents acted upon such terms and conditions of appointment without any demurrer. They chose to file the subject writ petition only in the year 2013, when the cause of action first arose on 01.04.2001, then on 20.05.2005 and once again, on 16.03.2007. Unless the respondents are to be reinstated in their previous post (held prior to 01.04.2001), the question of awarding back wages would not arise at all. The relief of back wages is and can be linked only to the order of reinstatement. It cannot be awarded in isolation or, for that matter, during the period when the respondents were not in employment at all.‘

¶405

17. The case of Dhyan Singh & Ors. Vrs. State of Haryana & Ors. (2002) 10 SCC 656 was in respect of appointments under the Project in the State of Haryana. The services of the employees were discharged upon abolishing of the aforementioned Project. The employees invoked the writ jurisdiction of the court claiming fixation of their salary by taking past service and for pension. This Court declined such claim and held as under:

¶406

‗*** The continuance/engagement of the appellants under the specific scheme cannot be held to be an employment under any establishment of the

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Government. Such schemes are taken up for certain contingencies when money for the same is provided either by the Central Government or at times by some foreign countries. But the employment under such scheme not being a part of the formal cadre of the State Government, it is difficult to hold that the period for which an employee rendered service under such scheme can be counted either for the purposes of deciding their pensionary benefits or even for fixing of their salary in the scale of pay once they are regularly absorbed.‘

¶410

***

¶411

20. The entire case is based upon Rule 59 of the Rules and the Circular dated 12th August, 1969 of the erstwhile State of Bihar. We do not find any merit in the arguments raised by the learned counsel for the appellants. Rule 59 of the Rules empowers the State Government to declare any specified kind of service rendered by one in a non-gazetted service to qualify for pension, provided, that the salary is paid from the general revenue. Rule 58 of the Rules contemplates the conditions that are required to be satisfied for services to be pensionable. Herein, as it has been reiterated before, first condition is that the service must be under the Government; second, that it must be substantive and permanent; and third, that it must be paid by the Government.

¶412

***

¶413

23. The case of Baliram Singh arises out of the policy of the State of Bihar wherein the past service has been specifically ordered to be

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considered for pension. Since in the State of Jharkhand, the policy decision is to treat them as fresh appointments without any benefit of seniority and pay protection, therefore, to count the period when the appellants were working under a Project as pensionable service is beyond comprehension. The appellants have been appointed as fresh candidates and, therefore, their period of service for pension has to be calculated from the date of their regular appointment and therefore they cannot get any benefit of past service rendered by them.

¶417

24. Learned counsel for the appellants have referred to an order passed by this Court in Asgar Ali & Ors. Vrs. State of Jharkhand & Ors., 2010 SCC OnLine Jhar 8 wherein the direction of the High Court for payment of arrears was not interfered with. It is contended that since the appellants have been paid salary for the period prior to their regular appointment, the appellants would be entitled to pension as well.

¶418

25. The Single Bench of the Jharkhand High Court in a judgment reported as Asgar Ali dealt with a prayer for absorption and for payment of arrears of salary from 16th May, 2001, i.e. when the employees were rendered as surplus, till January, 2008, i.e. the date of their absorption, in Writ Petition No.729 of 2004. The learned Single Bench vide order dated 4th January, 2010, directed the State for the payment of salary for the reason that the services of the employees under the Project were not retrenched, therefore, the employees were entitled to their

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salary. In such petition the employees had made no claim for counting of past services for the purposes of pensionary benefits. As against such order of the learned Single Judge, the state sought LPA No.533 of 2012 which was dismissed vide order dated 1^st October, 2013. Thereafter the State sought a Special Leave Petition which was also dismissed with a direction to make phased payments of salary to the writ petitioners/employees. Again, no claim for counting of past services for the purposes of pension was made or allowed by the Court. It was merely a monetary benefit which was granted on account of no formal order of retrenchment being passed against the employees employed under the Project.

¶422

26. Since the appellants were absorbed as fresh appointees without pay protection and seniority, as a consequence thereof, they will not be entitled to count their past service rendered under the Project for the purpose of pension. We, thus, do not find any error in the order passed by the High Court which may warrant interference in the present appeals. Accordingly, the appeals are dismissed.‖

¶423

10.5. Pertinent here to quote from Vinod Kanjibhai Bhagora Vrs. State of Gujarat, (2024) 2 SCR 155:

¶424

―It is well settled that pension scheme(s) floated by the State Government form a part of delegated beneficial legislation; and ought to be interpreted widely subject to such interpretation not running contrary to the express provisions of the Pension Rules . [Senior Divisional Manager, LIC Vrs. Shree Lal Meena, (2019) 5

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SCR 391 = (2019) 4 SCC 479]. Furthermore, it would be relevant to underscore that the State Government is a model employer; and ought to uphold principles of fairness and clarity.‖

¶428

10.6. In the present case Annexure-7, i.e., Office Order dated 04.02.2015 whereby the petitioners were absorbed against existing vacant posts being treated to be first appointment without pay protection, this Court of the humble opinion that the petitioners have been rightly denied the benefit claimed for.

¶429

Conclusion:

¶430

11. Having thus discussed the factual and legal perspective of the matter, as the fact is not disputed that without any pay protection the petitioners have accepted their position against vacant post in Group-D and thereby it is obvious that they have accepted that such posting was the first appointment. Such fresh appointment being accepted in the year 2015 and they did not qualify conditions of pensionable service, their claim cannot be granted. The opposite parties have rightly denied pension, gratuity and other retirement benefits vide order dated 06.02.2021 (Annexure-11) of the Additional Chief Secretary to Government of Odisha in General Administration and Public Grievance Department.

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¶433

12. Though at the time of hearing the learned counsel for the petitioners referred to and relied on various decisions as discussed above and distinguished on facts, significant it is to notice that in the prayer(s), the writ petitioner has sought to restrict their claim to be granted in the light of State of Odisha Vrs. Hadu Gouda, OJC No.8149 of 2000, vide Judgment dated 02.04.2018; and Jugal Kishore Sahoo, OJC No.12017 of 2000, vide order dated 16.04.2019. At the cost of repetition it is pertinent to mention that this Court is not given the opportunity to have glance on these two decisions, as the petitioners have not made copies of said orders available. However, the learned counsel during the course of hearing has taken this Court to order dated 12.12.2019 in State Government of Odisha Vrs. Mithuram Bhoi, W.P.(C) No. 9099 of 2016, wherein both these cases were referred to. Perusal of this order makes it clear that the decision taken by this Court is not to be treated as ―precedent‖. Therefore, it can be made clear that the period of service rendered as work-charged employees cannot be counted as a rule of thumb for the purpose of pension, gratuity and other retirement benefits.

¶434

12.1. It is well established that pension although is not a bounty, the entitlement thereto is only under a statute and only when the conditions precedent provided for in

¶435

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¶437

the statute are fulfilled, an employee would be entitled thereto. Rule 3, 11 and 13 of the Odisha Civil Services (Pension) Rules, 1992 leads to show that the Odisha Civil Services (Pension) Rules applies to the Government servants appointed in posts and services in connection with the affairs of the State which are borne on pensionable establishment. [ State of Odisha Vrs. Banamali Samal, 2024 SCC OnLine Ori 1092 (Division Bench) ]. This apart, Rule 3 and Rule 18 of the said Pension Rules makes it clear that persons engaged in work-charged establishment and employees of jobcontract stand differently than casual labourer. It is manifestation of fact on scrutiny of proviso to sub-rule (4) of Rule 3 ibid. that the persons who are appointed under job-contract and work-charged establishments prior to 01.01.2005 and brought over to the regular establishment on or after 01.01.2005 the provisions of sub-rule would not attract. Therefore, in view of such clear provisions, the principles sought to be followed on the basis of decisions cited by the learned counsel for the petitioners is repelled.

¶438

12.2. Relevant here to have regard to following observation of a Division Bench of this Court rendered in Ashalaxmi Mohanty Vrs. Central Administrative Tribunal, 2021 (III) ILR-CUT 674 :

¶439

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¶441

―On reading of the above, this Court finds, on a query being made by the Department to calculate the seniority in the particular cadre through this letter, the concerned authority intimated that since the P.E. of various station headquarters have been amended w.e.f.05.01.1994 it was communicated therein that these CSBOs have to be taken on G.S. Branch Commission Roster w.e.f. that date only. Through sub-paragraph ‘b’ it has been further clarified that the services rendered on casual basis prior to the appointment in regular establishment shall not be counted for the purpose of pay fixation etc. This Court here observes, the persons engaged as CSBO prior to 5.01.1994 are all holder of temporary post and it is only after 5.01.1994 post of CSBOs became a confirmed cadre post on creation of such post being approved by the competent authority. There also clearly appears that existence of such post prior to 05.01.1994 was not only a local arrangement but also purely on temporary basis. For the above and for the clear direction therein that there shall be no counting of the casual continuation prior to creation of regular post shall not be counted for the purpose of pay fixation, the petitioner is not justified to claim her seniority on the basis of continuing her period of service in a non-sanctioned and casual post. This Court also finds, there is virtually no challenge to either the creation of the CSBO posts w.e.f.5.01.1994, nor there is even any challenge to the communication dated 27.04.1995 as find place at Annexure-B/4. It is, in the circumstance, this Court observes, if the Petitioner was at all aggrieved by the communication at Annexure-B/5 nothing prevented the Petitioner to challenge the decision of the authority therein and in absence of which the claim of the Petitioner to consider her past service for the

¶442

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¶444

purpose of seniority being a holder of temporary and nonsanctioned post is not sustainable in the eye of law.‖

¶445

12.3. Drawing analogy from above position as enunciated by this Court, it is quite obvious that when the provisions of the Odisha Civil Services (Pension) Rules do not contemplate counting of period served as casual labourer for the purpose of grant of pension, gratuity and retirement benefit, there can be no gainsaying that the petitioners are not entitled to such benefit as claimed for.

¶446

13. The instant matter is looked at in different angle as Sri Bhabani Sankar Tripathy, learned Advocate sought to derive strength on the basis of observations made in Anand Prakash Mani Tripathi Vrs. State of Uttar Pradesh, Civil Appeal No.6118 of 2024 [arising out of SLP(C) No.9614 of 2017], disposed of vide Order dated 07.05.2024 by the Hon‘ble Supreme Court of India . This Court for benefit may extract relevant portions of said order:

¶447

―4. The sole issue which survives for consideration is whether they are entitled to post-retiral benefits and terminal dues as may be admissible to each of the appellant(s) of their legal heirs.

¶448

5. Having considered the fact that the appellant(s) have worked for such a long period, it would be unreasonable and unfair to deny them post retiral

¶449

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¶451

benefits or terminal dues as may be admissible to the regular Government employees.

¶452

6. This order we are passing in the peculiar facts and circumstances of the case considering the length appellant(s).

¶453

***

¶454

8. This Court right from 2017 had granted interim order(s) to the appellant(s), who have continued to work and have since retired, except one Umesh Chandra, who died in the year 2019, while still in service.

¶455

9. In the facts and circumstances of the case, we set aside the impugned judgment(s) passed by the Division Bench of the High Court and restore that of the learned Single Judge. The appellant(s) would be entitled to all consequential benefits as directed by the learned Single Judge.

¶456

10. The respondent-State of Uttar Pradesh shall ensure that the benefits admissible to the appellant(s) or their legal heirs be paid within a period of two months from today.‖

¶457

13.1. What is sought to be ignored by the learned counsel for the petitioners for consideration of this Court in order to weigh the claim of the petitioners herein is paragraphs 6 and 8 of the said order dated 07.05.2024 of the Hon‘ble Supreme Court in Anand Prakash Mani Tripathi (supra). It may then be taken note of proposition made in Hari Nandan Prasad Vrs. Employer I/R to Management of

¶458

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¶460

Food Corporation of India, (2014) 7 SCC 190 wherein it has been expounded that if posts are not available, issuance of directions for regularisation would be impermissible and that such directions cannot be issued only on the basis of number of years put in by a daily wager. However, the exception could be carved out to the effect that where similarly situated workmen are regularised in terms of a Scheme. Thus once the State Government formulated a Scheme for regularization and regularizes similarly placed employees in accordance with that Scheme, it is permissible for issue of direction to regularise of service of casual/daily wage worker who fulfils the criteria prescribed in the Scheme. Since the right to claim regularization, in such case, flows purely out of the Scheme, it is mandatory that the concerned worker fulfils all the criteria prescribed under the Scheme to the hilt.

¶461

13.2. In fact, in the present case, the Government of Odisha having maintained seniority list of casual labourers working under the Arboriculture Organisation under the General Administration and Public Grievance Department (Annexure-3) and as and when vacancy arose, in order of seniority the casual labourers have been accorded regularisation in service by adhering to guidelines prescribed under the Finance Department

¶462

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¶464

Resolution No.31715/F., dated 04.09.2012. At this juncture, this Court feels it apt to reproduce said Resolution stemming upon which the learned counsel for the petitioners has insisted for according favour to the petitioners with pension, gratuity and other retirement benefits.

¶465

―Government of Odisha

¶466

Finance Department

¶467

***

¶468

No. 51715-FIN-BUDS-MISC-0009/2012/F., date 04.09.2012

¶469

Sub.: Scheme for grant of ‗Temporari Status‘ and absorption of casual/daily wage labourers engaged in different Government establishments prior to 12.04.1993 against regular Group-D vacancies.

¶470

A ban has been imposed on engagement of persons on daily wage basis, Work Charged Employees and NMRs in Government establishments as per the Finance Department Circular No.17815(45)/F dated 12.04.1993. It was specifically been stipulated therein that violation of this, would result in fixation of personal responsibility on the officer engaging such persons and also the person disbursing their wages.

¶471

2. These workers put-forth their claims for absorption against regular vacant posts at different levels. Keeping in view various judicial pronouncements, the State Government have framed and operationalised a scheme for absorption of

¶472

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¶474

NMR/DLR workers engaged in Engineering Departments and Job Contract workers of Settlement & Consolidation organisation under Revenue & Disaster Management Department in the Finance Department Resolution No. 22764/F dated 15.05.1997. The scheme provides for absorption of NMR/DLR/Job Contract workers engaged prior to 12.4.1993 against regular vacant posts subject to conditions prescribed therein.

¶475

3. However, persons engaged on casual/daily wage basis prior to 12.4.1993 in Government establishments other than Engineering Departments, are still continuing on temporary basis on daily wage. They are not entitled to any other service and terminal benefits. They have been raising demands for regularization of their services/ absorption against vacant posts in regular establishment.

¶476

4. Government after careful consideration of the matter have been pleased to formulate the following scheme for the benefit of casual/ daily wage labourers engaged in different Government establishments prior to 12.04.1993 by conferring them with ‘Temporary Status’ in the first Instance and then to provide scope for their absorption against regular Group D vacancies.

¶477

5. Scheme for conferment of Temporary Status:

¶478

In order to prove appropriate emoluments and terminal benefit, Temporary Status would be conferred on the casual/daily wage labourers engaged in Government establishments prior to

¶479

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¶481

12.04.1993. Such conferment of Temporary Status would be without reference to creation/availability of regular Group D posts.

¶482

Eligibility:

¶483

(i) To be eligible for conferment of ‗Temporary Status‘ such persons must have been engaged prior to 12.04.1993 i.e. before the imposition of ban on such engagement.

¶484

(ii) They must have rendered continuous service since their initial engagement. Engagement of at least 240 days in a year shall be construed as a complete year of engagement for this purpose.

¶485

(iii) Date of initial engagement i.e. par to 12.04.1993 and continuity of service shall have to be certified by the concerned Head of Office and countersigned by the concerned Heads of Department.

¶486

Service Conditions:

¶487

On conferment of ‗Temporary Status‘ one would be eligible for consolidated remuneration equal to entry point basic pay + grade pay in Pay Band-1-S i.e. Rs.5740/ (basic pay Rs. 4440/- grade pay in grade pay Rs.1300/-) only per month. They will not be eligible to any other allowances like DA, HRA etc.

¶488

Their consolidated remuneration will be enhanced by 5% annually subject to satisfactory performance.

¶489

Unless their services are dispensed with/terminated in accordance with the para 5(b)(vi) and (vii), the

¶490

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¶492

casual/daily wage labourers with ‗Temporary Status‘ will continue as such till attaining the age of 60 years. On attaining the age of 60 years, they would cease to be employed and on such cessation, a casual/daily wage labourer with ‘Temporary Status’ shall get Rs.1.50 lakh as one time ‘cessation of engagement’ benefit, in case the employee concerned could not be absorbed against any regular post in accordance with the scheme of absorption as enumerated in para-6. They will be eligible to avail 15 days ‗Casual Leave‘ per year. Female employees would be entitled-to Maternity leaveadmissible to regular employees.

¶493

Despite conferment of ‗Temporary Status‘, the services of a casual/daily wage labourer can be dispensed with by giving a notice of one month in writing. The person concerned can also quit the service by giving a written notice of one month.

¶494

Their services can be terminated in case of involvement in criminal case/misconduct/ delinquency/incapacitation etc.

¶495

The period of service rendered by a person as casual/daily wage labourer and the period of service rendered with ‘Temporary Status’ will not be counted towards retirement and other service benefits in case of subsequent absorption against a regular vacant post, as per para-6 of the Scheme .

¶496

6. Scheme for absorption of casual/daily wage labourers (engaged prior to 12.04.1993) and

¶497

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¶499

conferred with Temporary Status', against regular Group ‗D‘ vacancies:

¶500

A separate category wise gradation list/seniority list of casual/daily wage labourers (engaged prior to 12.04.1993) and conferred with ‘Temporary Status’ in accordance with paragraph-5 shall be prepared by the appointing authority after taking into consideration the length of engagement in the establishment. The gradation list/seniority list shall be finalised only after observing the procedural formalities like publication of the provisional gradation list/seniority list, invitation of objections and consideration the objections filed, if any.

¶501

If the existing vacancies in Group ‗D‘ posts of the respective offices where the casual/daily wage labourers (engaged prior to 12.04.1993) and conferred with ‗Temporary Status‘ have been working are required to be filled up in the interest or public service then, the same shall be filled up as per the extant recruitment rules following provisions of ORV Act and instructions issued by Government from time to time, from among the eligible) casual/daily wage labourers conferred with Temporary Status strictly on the basis of the gradation list/seniority list.

¶502

There shall be no open recruitment against the vacant Group D posts till the list of casual/daily wage labourers conferred with ‗Temporary Status‘ is exhausted or unless eligible persons from the list of casual/daily wage labourers conferred with

¶503

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¶505

‗Temporary Status‘ are not available. In this regard relaxation of the relevant provisions by the competent authority would be necessary, in case of Group ‗D‘ posts for which regular recruitment rules has been framed. However open recruitment may be made to fill up the vacant reserved posts, if any, as per the provisions of ORV Act.

¶506

The candidates must be within the age limit prescribed for first appointment to the corresponding regular post after deduction of the number of years of engagement as casual/daily wage labourer. The appointing authority may allow age relaxation equivalent to the period for which they have worked continuously as casual/daily wage labourer.

¶507

They must have the minimum educational qualification prescribed for the post against which they are required to be absorbed.

¶508

They must be medically fit for the post being considered for absorption. The medical fitness certificate of the candidate shall be ensured in accordance with Rule 49, 50 and 51 of Odisha Service Code and executive instructions issued by Government in this regard.

¶509

For determination of the Date of Birth of the candidates, the criterion as laid down in Rule 65 and 66 of the Odisha General Financial Rules, Volume-1 and other instructions issued by Government in this regard shall be followed.

¶510

The absorption shall be subject to verification of character and antecedents of the candidate.

¶511

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¶513

On absorption in the regular establishment, they shall be eligible to draw the minimum of the Pay Band with grade pay attached to the corresponding post and other admissible under rules from time to time.

¶514

The date of absorption shall be reckoned as the first appointment to the service for the purpose of retirement and other service benefits.

¶515

Such absorption can be made only against existing Group D vacant posts. Under no circumstance posts will be created for such absorption.

¶516

Prior concurrence of Finance Department would be necessary for filling up of base level vacancies in the Group ‗D‘ Cadres in terms of Finance Department OM No. 10954/F dated. 14.03.2001. While issuing the order of absorption, the appointing authority shall record the UOR No and date in which concurrence of Finance Department has been obtained for such absorption.

¶517

7. This Resolution shall come into force w.e.f. its date of issue.

¶518

This has been concurred in by G.A. Department vide UOR No,468/GAD dated 11.07.2012 and Law Department vide UOR NO.1623/L dated 30.07.2012.

¶519

ORDER: Ordered that the Resolution be published in the extraordinary issue of Odisha Gazette for general information of public. Ordered also that copies of the Resolution be forwarded to all Departments of Government/ all Heads of

¶520

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¶522

Departments/ all Collectors/ Registrar, Orissa High Court/Registrar, Odisha Administrative Tribunal.

¶523

Principal Secretary

¶524

to Government‖

¶525

***

¶526

―Government of Odisha

¶527

General Administration Department Office Order

¶528

Bhubaneswar, dated the 2^nd February, 2013

¶529

No.02-65-10-0013-2012—3159/CA.

¶530

The following 97 (Ninety seven) Casual Labourers engaged in G.A (Artericulture Organisation) Department (List of Casual Labourers enclosed) prior to 12.04.1993 and fulfilling the condition of engagement stipulated in Finance Department Resolution No.31715/F dated 04.09.2012 are conferred with ‗Temporary Status‘ w.e.f. 04.09.2012 with the following terms and conditions:

¶531

(i) On conferment of "temporary status they are allowed to receive consolidated remuneration of Rs. 5740/(Basic Pay Rs. 4440/GP Rs. 1300/- in the scale of pay of Rs. 4440/- to 14680/-) each per manth. They shall not be eligible to get any other allowances like DA, HRA etc.

¶532

(ii) Their consolidated remuneration shall be enhanced by 5% annually subject to satisfactory performance.

¶533

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¶535

(iii) Unless their services are dispensed with/ terminated in accordance with the Para 5(b)(vi) & (vii) of the above Resolution detailed below, they shall continue as such till attaining the age of 60 years. On attaining the age of 60 years, they would cease to be employed and on such cessation they shall get Rs. 1.5 lash each as one time cessation of engagement benefit, in case they could not be absorbed against any regular post under G.A. (Arboriculture Organisation) Department in accordance with the scheme of absorptions enumerated in Para-6 of the Resolution.

¶536

(iv) They shall be eligible to avail 15 days casual cave per year.

¶537

(v) Female employees would be entitled to maternity leave admissible to regular employees.

¶538

(vi) Despite conferment of "temporary status", their services can be dispensed with by giving a notice of one month in writing, The person concerned can also quit the service by giving a written notice of one month.

¶539

(vii) The services can be terminated in case of wolvement in criminal case/misconduct/delinquency/ incapacitation etc.

¶540

(viii) The period of service rendered by him/her as casual/daily wage labourer and the period of service rendered with ‘Temporary Status’ will not count towards retirement and other service benefits in case of subsequent absorption against regular vacant post under Arboriculture Organisation, in accordance with

¶541

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¶543

the Scheme of absorptions enumerated in para6 of the Resolution.

Sd/-

Special Secretary

to Government‖

13.3. The office order conferring ‗Temporary Status‘ with clauses like scope to ―dispense with‖ service at the behest of casual labourer and restricting counting of period of service rendered as casual labourer towards ―retirement and other service benefits‖ go without saying that the petitioners have, with eyes wide open, accepted such position since its issue. The Office Order dated 02.02.2013 is in consonance with the Finance Department Resolution dated 04.09.2012. At this distance of time, it would not be prudent to claim such period spent as casual labourer prior to their services being brought to regular establishment as per available vacancy for inclusion as period of service in regular establishment so as to extend them the benefits of retirement as per the Odisha Civil Services (Pension) Rules, 1992.

¶548

13.4. In addition to the above, the Office Order dated 09.06.2014 under Annexure-6 whereby Sri Trilochan Mallick, casual labourer (Scheduled Caste category) accorded ―TEMPORARY STATUS‖ was absorbed against

¶549

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¶551

existing vacant post of Group D, i.e., SAHAKARI MALI of Arboriculture Organisation inter alia with the following conditions:

¶552

―*** This absorportion shall take into account from 01.03.2014.

¶553

***

¶554

The dates of absorption shall be reckoned as his first appointment to the service for the purpose of retirement and other service benefits.‖

¶555

13.5. Apposite to refer to Union of India Vrs. Rakesh Kumar, (2017) 3 SCR 783 = (2017) 13 SCC 388, wherein it has been exposited by Hon‘ble Supreme Court of India as follows: (extracted from SCC)

¶556

―35. The judgment of this Court in North West Railway Vrs. Chanda Devi, (2008) 2 SCC 108 considered the nature of employment of casual labour who was granted temporary status. In the above case, Smt. Santosh, the respondent was widow of Shri Ram Niwas who was a project casual labour. Under the scheme framed by the Union of India in pursuance of the order of this Court in Inder Pal Yadav Vrs. Union of India, (1985) 2 SCC 648, Ram Niwas was treated as temporary employee w.e.f. 01.01.1986. After the death of Ram Niwas, her widow filed the claim for grant of family pension which was rejected by the Railway against which the widow approached the

¶557

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¶559

Central Administrative Tribunal. The Tribunal allowed the claim, and the writ petition filed by the Union of India was dismissed [Union of India Vrs. Santosh, 2005 SCC OnLine Raj 242 = (2005) 7 SLR 414 by the Rajasthan High Court against which the appeal was filed. After referring to Rule 2001, Rule 2002 and Rule 2005 of IREM, this Court held that Rule 2005 clearly lays down the entitlement and privileges admissible to casual labour who are treated as temporary i.e. given temporary status.

¶560

36. This Court in North West Railway Vrs. Chanda Devi, (2008) 2 SCC 108 further held that there is a distinction between the casual labour having a temporary status and temporary servant, para 24 of the judgment is relevant which is quoted as below: (SCC pp. 116-17)

¶561

‗24. The contrast between a casual labour having a temporary status and a temporary servant may immediately be noticed from the definition of a temporary railway servant contained in Rule 1501 occurring in Chapter XV of the Manual:

¶562

‗1501. (i) Temporary railway servants

¶563

Definition.—

¶564

A ―temporary railway servant‖ means a railway servant without a lien on a permanent post on a railway or any other administration or office under the Railway Board. The term does not include ―casual labour‖, including ―casual labour with temporary status‖, a

¶565

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¶567

―contract‖ or ―part-time‖ employee or an ―apprentice‖.‘ ‖

¶568

This Court in the above case has also disapproved the judgment Rukhiben Rupabhai Vrs. Union of India, 2005 SCC OnLine Guj 341 = (2006) 2 SLR 218 of the Gujarat High Court wherein it was held that casual labour after obtaining temporary status becomes a temporary railway servant. The reasons given by the Gujarat High Court were extracted by this Court in para 27 of the judgment, and in para 31 of the judgment the Gujarat High Court's judgment was disapproved. Para 27 and para 31 are extracted as below: (North West Railway Vrs. Chanda Devi, (2008) 2 SCC 108, SCC pp. 117-18)

¶569

‗27. The Gujarat High Court in Rukhiben Rupabhai Vrs. Union of India, 2005 SCC OnLine Guj 341 = (2006) 2 SLR 218 no doubt on analysing the scheme filed before this Court, opined: (SCC OnLine Guj para 31)

¶570

‗31. This change has been made by the Railways after the Apex Court‘s decision in Inder Pal Yadav Vrs. Union of India, (1985) 2 SCC 648. The original definition of ―temporary railway servant‖ is clear, but in the above-quoted definition in Rule 1501, the Railways have included the ―casual labour with temporary status‖, thereby, taking them out from the category of ―temporary railway servant‖. How and why this change has been made, what procedures were adopted for making the change, there is no whisper,

¶571

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¶573

although, this change has grievously affected the casual labour becoming temporary on completion of 360 days' continuous employment, and committed breach of the Apex Court's decision in Inder Pal Yadav Vrs. Union of India, (1985) 2 SCC 648 followed by Dakshin Railway Employees‘ Union Vrs. Southern Railway, (1987) 1 SCC 677 making casual labour ―temporary railway servant‖. Since there exists only four categories, namely, (1) permanent, (2) temporary, (3) casual labour and (4) substitutes, casual labour, under the original scheme approved in cases referred to hereinbefore, becomes ―temporary railway servant‖, after completion of 360 days‘ continuous employment, therefore, he cannot be made ―casual labour with temporary status‖ by subsequent gerrymandering by the Railways by its Circular dated 11.09.1986, which was not brought to the notice of the Apex Court in Dakshin Railway Employees‘ Union Vrs. Southern Railway, (1987) 1 SCC 677. Therefore, this circular has no legal sanction against the Apex Court‘s decision in Inder Pal Yadav Vrs. Union of India, (1985) 2 SCC 648, contrary to original scheme and as such, hit by Articles 14, 16, 21, 41 and 42 of the Constitution of India.‘

¶574

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¶576

But evidently the provisions of the Railway Manual were not considered in their proper perspective.

¶577

***

¶578

31. The Gujarat High Court in our opinion, therefore, committed a fundamental error in opining otherwise. It failed to notice that when casual labour has been excluded from the definition of permanent or temporary employee, he with temporary status could not have become so and there is no legal sanction therefore. It is for the legislature to put the employees to (sic) an establishment in different categories. It may create a new category to confer certain benefits to a particular class of employees. Such a power can be exercised also by the executive for making rules under the proviso appended to Article 309 of the Constitution of India. Dakshin Railway Employees‘ Union Vrs. Southern Railway, (1987) 1 SCC 677 whereupon reliance has been placed by the Gujarat High Court in Rukhiben Rupabhai Vrs. Union of India, 2005 SCC OnLine Guj 341 = (2006) 2 SLR 218 does not lead to the said conclusion as was sought to be inferred by it. The question therein was as to whether any direction was to be issued to include the petitioners therein in the scheme for absorption as formulated pursuant to the directions of the Court.‘

¶579

37. In North West Railway Vrs. Chanda Devi, (2008) 2 SCC 108, ultimately this Court set aside the

¶580

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¶581

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¶582

judgment [Union of India Vrs. Santosh, 2005 SCC OnLine Raj 242 = (2005) 7 SLR 414 of the Rajasthan High Court which held that the widow of Shri Niwas was entitled for pension. This Court held that there is a distinction between casual labour having temporary status and the temporary servant. The cases before us are all the case where casual labour has been granted temporary status. Grant of temporary status is not equivalent to grant of an appointment against a post.

¶583

***

¶584

44. As observed above, the grant of temporary status of casual labour is not akin to appointment against a post and such contingency is not covered by Rule 20 and the same is expressly covered by Rule 31 which provides for ―half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to certain conditions enumerated therein‖. Thus Rule 31 is clearly applicable while computing the eligible services for calculating pensionary benefits on granting of temporary status.‖

¶585

13.6. Aforesaid case is referred to for the purpose of understanding the position of ―casual labourer granted with Temporary Status‖. Grant of TEMPORARY STATUS is not equivalent to grant of an appointment against a post. The petitioners in the case at hand having been conferred with ―TEMPORARY STATUS‖, was absorbed

¶586

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¶588

against existing vacant post. Therefore, there is justification in treating his service as first appointment to the service in Group-D category.

¶589

13.7. Such being the position, this Court is of the considered view that in absence of any specific rules, the claim as made by the petitioners in the writ petition for a direction to the opposite parties to extend the pension, gratuity and retirement benefits cannot be acceded to. No infirmity could be found in the impugned order dated 06.02.2021 (as communicated vide Memo No.4633/CA, dated 10.02.2021 vide Annexure-11) holding that ―total period of service from the date of joining in Arboriculture Organisation as casual labourer towards payment of pension and other service benefits‖ cannot be counted.

¶590

14. In the wake of the above discussions and reasons ascribed, the writ petition deserves to be dismissed, being devoid of merit, and accordingly, the writ petition stands dismissed, but in the circumstances, there shall be no order as to costs.

¶591

(MURAHARI SRI RAMAN) JUDGE

¶592

High Court of Orissa, Cuttack The 3^rd October, 2024//Aswini/MRS/Laxmikant

¶593

Signature Not Verified

¶594

Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTA CK Date: 03-Oct-2024 18:48:51

¶595

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Aswini Kumar Mohapatra v. State of Odisha

Case brief

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Aswini Kumar Mohapatra v. State of Odisha

Case brief

What is this about?

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What the court decided

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Iusf Alli Khan Vs Union of India

Udayanath Behera Vs Pratap Chandra Pathy

Prafulla Kumar Sahoo Vs Chief Administrator Shree Jagannath Temple, Puri

Lambodar Sethi Vs State of Orissa