Orissa High Court
Mochiram Behera vs State Of Odisha & Ors. .... Opp. Parties on 10 December, 2021
Author: B.R. Sarangi
Bench: B.R. Sarangi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No. 10261 of 2020
Mochiram Behera. .... Petitioner
Mr. S.S. Pradhan, Advocate
-Versus -
State of Odisha & Ors. .... Opp. Parties
Mr. H.M. Dhal, AGA
CORAM:
DR. JUSTICE B.R. SARANGI
ORDER
10.12.2021 Order No. This matter is taken up through hybrid mode.
042. Heard Mr. S.K. Mishra, learned counsel for the petitioner and Mr. H.M. Dhal, learned Addl. Government Advocate for the State opposite parties.
3. The petitioner has filed this writ petition seeking direction to the opposite parties to release pension and pensionary benefits, which the petitioner is entitled to from the date of his retirement on attaining the age of superannuation, as his juniors have already got such benefits.
4. Mr. S.K. Mishra, learned counsel for the petitioner contends that the petitioner was initially joined as Jr. Clerk on 27.12.1982, in pursuance of the order dated 18.11.1982 of the Divisional Forest Officer, Ghumusur, South Division in the scale of pay of Rs.255-390/- with usual pay. While he was working as such, he was reverted to the post of Gate Keeper and continued as such Page 1 of 6 from 26.05.1984 to 24.07.1984. By following due process of selection conducted on 29.01.1985 and 30.01.1985, the petitioner on being selected was appointed as Gate Keeper temporarily, vide office order dated 31.01.1985, pursuant to which he joined in the post on 01.02.1985. The petitioner was again appointed as Jr. Clerk and continued as such from 09.08.1985 to 03.01.1986 for a period of 4 months 28 days, as per order dated 01.08.1985. While he was continuing as Jr. Clerk, he was again reverted to the post of Gate Keeper, vide office order dated 04.05.1986, and continued as such from 04.05.1986 till the date of his retirement on 31.08.2018. On 31.03.2016, a gradation list was published, inadvertently indicating the petitioner as a work charged employee, wherein the petitioner was placed at serial no.9. On attaining the age of superannuation, the petitioner was allowed to retire from service on 31.08.2018, after rendering more than 35 years of service. On 29.09.2018, the petitioner filed a grievance petition before the Additional Chief Secretary, Forest & Environment Department, Government of Odisha for regularization of service and to grant pension and other pensionary benefits. As a consequence thereof, opposite party no.1 asked opposite party no.2 on 14.11.2018 to furnish a detailed report on the grievance of the petitioner. When no action was taken by the opposite parties, an advocate's notice was sent on 12.12.2019. In response to such notice, opposite party no.3, vide letter dated 09.01.2020, submitted factual report to opposite party no.2 wherein it has been admitted that juniors to the petitioner have already got the benefit of pay fixation and pensionary benefits pursuant to Court orders and since the petitioner has not approached to any Court, his case has not been considered. This Page 2 of 6 Court directed the learned State Counsel to take specific instructions on Para-4 and 6 of the letter dated 09.01.2020. In response to the same, opposite party no.3 has filed counter affidavit reiterating the same fact that juniors to the petitioner have been extended with the pensionary benefits, but the claim of the petitioner has not been considered because of the fact that he has not approached any Court of law. Hence this application.
5. Mr. H.M. Dhal, learned Addl. Government Advocate, referring to the counter affidavit filed by the State, contended that the petitioner having retired from service on 31.08.2018 not as a regular employee but as a work-charged employee, his grievance for grant of pension and other pensionary benefits cannot be considered as the claim is beyond rules. It is further contended that in the above context various correspondences have been made with the higher authorities and vide office order dated 11.09.2020 at Annexure-F/3 to the counter affidavit the Additional Secretary to the Govt. of Odisha, Forest & Environment Department, Bhubaneswar has considered the grievance of the petitioner and rejected the claim of the petitioner being devoid of merits. Thereby, the claim of the petitioner, as has been stated in the writ petition, is not admissible.
6. Having heard Mr. S.K. Mishra, learned counsel for the petitioner and Mr. H.M. Dhal, learned Addl. Government Advocate for the opposite parties and after going through the record, this Court is of the considered view that the factual matrix, as has been urged by the counsel for the petitioner, is not in dispute. Only because of the fact that the petitioner has not approached the Court, the benefit has not been extended to him. That has been reiterated in the counter affidavit and the order Page 3 of 6 passed by the authority concerned. In the letter dated 29.11.2018, which has been annexed as Annexure-A/3 to the counter affidavit, the Divisional Forest Officer, Ghumsur South Division also written to the Government to the following effect:-
"It is to mention here that he has been placed at SL No.9 of Gradation list of all work charged employees of this Division against which 9 nos of Gate Keepers relating to SL No.4,5,8,10,14,15,17,19,20 has been allowed by this office by virtue of Hon'ble Supreme Court's Order dtd.18.09.2017. Now in order to streamline the gradation list and to regularize their services, it is essential to issue a common cadre by regularizing the erstwhile 12 nos Gate Keepers who have not in the panel."
7. The Divisional Forest Officer, Ghumsur South Division also intimated to the Principal Chief Conservator of Forests, Odisha on 09.01.2020 in Annexure-9 in point nos.4 and 6 to the following effect:-
"Point No.4:- As his service like other co-employees is being treated as under work charged establishment in this Division from very beginning and for which some of Gate Keepers have taken shelter of Hon'ble Tribunal/High Court in various occasions during each instance of pay fixation under ORSP Rules to provide them salary up-gradation under pay fixation up to ORSP, 2008. But normally, as per pay fixation rule there was no direct provision to offer them pay fixation benefits. However on the merit of Hon'ble tribunal/ high Court orders those have preferred the appeal in the courts were specifically being allowed with such pay fixation by virtue of Court orders either single or in group. So, in the instant case, the applicasnt Gate Keeper Sri Mochiram Behera (Retd.) has not preferred any tribunal/ high Court to allow him ORSP,2017 benefits except simply comparing at par benefits with Sri Manoj Kumar Biswal & others (OA No.744/2012 & W.P(C) No.12607 of 2016)....."
Point No.:-6 In fact, the juniors to the applicant has got the benefit of pay fixation and pensionary provisions by virtue of single/ group Court orders. In Page 4 of 6 the instant case, the applicant has not preferred to any Court/ tribunal."
8. In the counter affidavit filed by opposite party no.3, it is clearly indicated in para-24 and 26 to the following effect:-
"24. That, 09 co-employees (Gate Keepers) had approached the Hon'ble Supreme Court for regularization of their services and the opposite party no.-3 had to abide the orders passed by the Hon'ble Court.
26. That, in reply to paragraph- 15 of the writ application, it is humbly submitted that service benefits have been extended to 9 numbers of Gate Keepers pursuant to the order of the Hon'ble Supreme Court."
9. In view of the pleadings available on record and the correspondences made with the Government, which have been made part of the record, there is no iota of doubt that juniors to the petitioner have been extended with the pensionary benefits by virtue of the order passed by the tribunal and confirmed by this Court as well as the Supreme Court. Thereby, the petitioner, having stood in same footing, is also entitled to get such benefits as have been claimed in the writ petition. Rejection of the claim of the petitioner by the State Government, vide order dated 11.09.2020 in Annexure-F/3 to the counter affidavit, is an outcome of non-application of mind and, as the same has been passed without taking into consideration the materials available on record and also the information furnished by the Divisional Forest Officer. Therefore, such action of the State authority being discriminatory, the order passed on 11.09.2020 in Annexure-F/3 to the counter affidavit cannot sustain in the eye of law and is Page 5 of 6 hereby quashed. This Court directs the opposite parties to extend the pension and pensionary benefits to the petitioner at par with his juniors, who have been extended with such benefits, being stood at serial nos.10, 14, 15, 17, 19 and 20, whereas undoubtedly the petitioner stands at serial no.9 of the gradation list. The above exercise shall be completed within a period of three months from the date of communication of this order.
10. The writ petition is accordingly allowed.
Issue urgent certified copy as per rules.
(Dr. B.R. Sarangi) Judge GDS Page 6 of 6