Orissa High Court
Swetapadma Samal vs State Of Odisha And Others ..... Opp. ... on 22 September, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) NO. 26508 OF 2017
In the matter of an application under Articles 226 & 227 of
the Constitution of India.
---------------
Swetapadma Samal ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For petitioner : Mr. Budhadev Routray,
Sr. Advocate along with
M/s. S. Das, R.P. Dalai,
K. Mohanty, S.K. Samal and
S.D. Routray, Advocates.
For opp. parties : Mr. A.K. Mishra,
Addl. Government Advocate
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of Hearing : 18.09.2023:: Date of Judgment :22.09.2023 DR. B.R. SARANGI, J. The petitioner, who was appointed as a Junior Engineer (Civil) on contractual basis and subsequently whose services were regularised after completion of six years, has filed this writ petition seeking to quash the order Page 1 of 33 dated 21.09.2016 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 3422 (C) of 2012, wherein, instead of extending the benefit as prayed for by the petitioner in the Original Application, direction has been given to the opposite parties to examine with regard to applicability of the circular dated 04.04.2007 in the case of the petitioner, which was exclusively applicable to job contract and work charged employees. The petitioner has further prayed to direct the opposite parties to extend the benefit by treating the period of her service from the date of her initial engagement against a substantive vacancy of Junior Engineer and bring her to the fold of the Odisha Civil Service (Pension) Rules, 1992 and General Provident Fund (Odisha) Rules, 1938 and grant all consequential benefits, as due and admissible to her, in accordance with law.
2. The factual matrix of the case, in brief, is that the Government of Odisha in the Department of Planning and Coordination issued a circular, vide memo no. 684 (64) dated 18.01.1972, to all Departments of Government/ Page 2 of 33 Heads of the Department that Government have been pleased to direct to follow the procedure to be adopted with immediate effect until further orders in absorbing Engineering Personnel in various posts lying vacant in each departments. It was further instructed that employment of Engineering Personnel, i.e., Graduate Engineer and Diploma Engineer should be made year-wise in order of merit. All candidates of particular year have to be absorbed first before candidates of the following years are considered. The Planning and Coordination Department will continue to maintain register of these candidates and on receipt of requisitions for filling up of posts under various departments, the Planning and Coordination Department should recommend the names of the candidates as many as four times of the vacancies. Recruitment to all posts, i.e., Junior Engineer, Sub-Assistant Engineer, Surveyor, Tracer, Draftsman, Embankment Inspector and Work Sarkar has to be made through those departments as was being made earlier.
Page 3 of 33 2.1. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Odisha for the regulation of recruitment and conditions of service of persons appointed as Junior Engineers made the rules, namely, the "Odisha Junior Engineers' Cadre (Recruitment and Condition of Service) Rules, 1972", hereinafter to be referred as "1972 Rules". Rule 5 thereof deals with method of recruitment. Sub-rule (2) of Rule 5 states that there shall be a committee comprising of the Chief Engineers, Roads and Buildings, Irrigation, Electricity, Public Health and Rural Engineering Organisation, the Director of Lift Irrigation and Additional Chief Engineer (Mechanical), and the Chairmanship of the Committee shall be determined according to the cadre to which recruitment is to be made. Rule-6 deals with condition of eligibility; Rule-7 deals with disqualifications; Rule 8 deals with the admission to the examination; Rule 9 deals with conduct of the selection; Rule 10 prescribes preparation and publication of the list by the Committee; Rule 11 prescribes for filling up of vacancies; Rule 14 deals Page 4 of 33 with probation and probationers; Rule 15 deals with departmental and professional examination; and Rule 16 deals with seniority.
2.2. While the said rule was in force, subsequently in the year 1991, the earlier circular dated 18.01.1972 and resolution dated 06.08.1979 were modified vide resolution dated 03.04.1991. In the said modified resolution, it was resolved by the General Administration Department for constitution of committee consisting of Chief Engineers of all Departments and other Heads of the Department concerned for appointment of Diploma Holders in all branches. In Clause-4 of the said resolution it was decided that "all appointments in the Government Department, Undertaking and other Government institutions are to be made from this panel of candidates maintained by the Committee".
2.3. After completion of Diploma in Civil Engineering, name of the petitioner was empanelled in the panel list of Engineers maintained by the Engineer-in-Chief (Civil) for Page 5 of 33 the purpose of giving appointment from out of the said panel in order of her position in the list, which was in consonance with the 1972 Rules and the guidelines, as mentioned above, issued by the Government from time to time. After empanelment in the list, the name of the petitioner was sponsored by the Committee of the Chief Engineers, vide letter dated 29.03.2003, for appointment to the post of Junior Engineer. In the said letter, the Chairman, Selection Committee had sponsored names of 80 numbers of unemployed Diploma Engineers (Civil), including the petitioner, to the Chief Engineer Rural Works- I, Bhubaneswar. On the basis of the said letter of approval dated 29.03.2003, the petitioner, along with other selected candidates, was given appointment to the post of Junior Engineer (Civil) on contractual basis with a consolidated salary of Rs.5000/- per month and their services were placed before the Chief Engineer Rural Works vide letter dated 07.07.2003. In the said letter, the name of the present petitioner found placed at sl. no. 35 and she was Page 6 of 33 posted to in RW Section, Hindol under RW Division, Dhenkanal against the existing vacancy.
2.4. While the petitioner was continuing as such, the office of the Engineer-in-Chief (Civil), Odisha, vide memo dated 09.03.2011, issued an order of promotion, which was passed in pursuance of the Works Department Resolution dated 22.09.2008, and subsequently in conformity with the Works Department letter dated 26.02.2011 the Diploma Holders (Civil) sponsored to Rural Works (RW) wing by the committee of the Chief Engineer, vide EIC (Civil) letter dated 29.03.2003, were absorbed against the regular vacant post of Junior Engineers (Civil) under RW wing in Group C category of post in the pay scale of Rs.9300 to 34,800/- with Grade Pay of Rs.4200/- under the Pay Band-II of ORSP Rules, 2008 with all other allowances as admissible from time to time with effect from their date of joining in regular establishment. In the said order of promotion the name of the petitioner was found placed at sl. no. 12 and her service was brought into regular establishment after Page 7 of 33 completion of six years of uninterrupted service, i.e., with effect from 13.07.2009.
2.5. After regular absorption of the petitioner's service in the regular cadre of Junior Engineer, the petitioner was allotted with a GPF Account bearing No. PW-068189 and right from her regular absorption as Junior Engineer she had been subscripting GPF in her account.
2.6. While the petitioner was so continuing, the Government of Odisha in the Finance Department issued a circular on 04.04.2017 under the subject applicability of new restructured defined contribution pension scheme in case of work charged employees and job contract employees, who were appointed prior to 01.01.2005 and subsequently brought over to the regular establishment on or after 01.01.2005. In the said circular, it was clarified that, the Government, after careful consideration of the above aspect, decided that the persons who were appointed under job contract and work charged establishment prior to 01.01.2005 and brought over to the regular establishment Page 8 of 33 on or after 01.01.2005 are not to come under the coverage of the OCS (Pension) Amendment Rules, 2005, rather their cases would be governed in terms of the OCS (Pension) Rules, 1992 and existing GPF (O) Rules, which would be applicable to them.
2.7. On the basis of such clarification issued by the Finance Department dated 04.04.2007 and by referring to such clarification, the works Department, vide letter dated 16.03.2012, issued a letter to the Engineer-in-Chief (Civil) Odisha, Bhubaneswar regarding applicability of newly restructured defined contributory pension scheme in case of contractual Junior Engineers, who were appointed as such prior to 01.01.2005 and subsequently absorbed in regular establishment on or after 01.01.2005. In the said clarification, the claim of the petitioner for consideration of her service under the O.C.S. (Pension) Rules 1992 was rejected and it was clarified that the circular dated 04.04.2007 issued by the Finance Department is not applicable in the case of Junior Engineers appointed on contractual basis.
Page 9 of 33 2.8. Assailing the Finance Department clarification dated 04.04.2007, as well as the Works Department clarification dated 16.03.2012, the petitioner preferred an Original Application bearing O.A. No. 3422 (C) of 2012 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack. The said Original application was disposed of, vide order dated 21.09.2016, by directing the State Government to take a decision in the matter as to whether the said rules, i.e., the OCS (Pension) Rules, 1992 can be extended to the petitioner, who was initially appointed on contractual basis prior to 01.01.2005 and subsequently regularised on completion of six years of uninterrupted service. The Tribunal was not inclined to issue any direction to extend the benefit as per the Finance Department circular dated 04.04.2007 holding that it is a policy decision of the Government. Hence, this writ petition.
3. Mr. B. Routray, learned Senior Advocate appearing along with Mr. J. Biswal, learned counsel for the petitioner contended that even though the petitioner was appointed against a substantive vacant post on contractual Page 10 of 33 basis on 07.07.2003 and, thereafter, she was brought to the regular establishment in the year 2009, but the Works Department issued a letter on 16.03.2012 stating therein that the contractual Junior Engineers, who were appointed prior to 01.01.2005 and subsequently absorbed in regular establishment on or after 01.01.2005, will not be governed under the OCS (Pension) Rules, 1992 and the circular issued on 04.04.2007 will not be applicable to the case of Junior Engineers appointed on contractual basis. Such letter dated 16.03.2012 is absolutely arbitrary, unreasonable and contrary to the provisions of law. He further contended that since the petitioner was appointed by following due procedure of law and on being sponsored by the selection committee from out of the panel as per the rules and guidelines issued from time to time and continuously discharging her responsibility assigned to her, the OCS (Pension) Amendment Rules, 2005 has no application because her appointment was made prior to 01.01.2005 against a substantive vacancy and subsequently brought over to the regular establishment. It Page 11 of 33 is further contended that after bringing the petitioner to the regular establishment, GPF Account was opened and the petitioner was also contributing to the said GPF Account. But all of a sudden by issuing a circular the same has been stopped. Therefore, the opposite parties have committed gross illegality and irregularity by not allowing the petitioner to continue under the OCS (Pension) Rules, 1992, as it was applicable to the employees appointed prior to 01.01.2005. The Tribunal, while passing the order impugned, would have taken into consideration this aspect and decided the same, instead of remitting back the matter to the Government for reconsideration. As such, the Tribunal has committed gross error apparent on the face of the record, for which the petitioner has challenged the same in the present writ petition.
3.1. To substantiate the contentions raised, learned Senior Advocate appearing for the petitioner placed reliance on the decisions of the apex Court in the cases of G.P. Doval and others v. Chief Secretary, Government of U.P. and others, AIR 1984 SC 1527; S. Sumnyan and Page 12 of 33 others v. Limi Niri and others, AIR 2010 SC 2159; Habib Khan v. State of Uttarakhand and others, (2019) 10 SCC 542; as well as the judgment passed by this Court in the case of Niranjan Das and others v. State of Odisha and others, WPC (OAC) No. 1074 of 2017 decided on 07.10.2021, which was confirmed in W.A. No. 936 of 2021 decided on 15.02.2023.
4. Mr. A.K. Mishra, learned Addl. Government Advocate appearing for the State-opposite parties contended that the petitioner though was appointed on 07.07.2003, pursuant to the appointment letter issued in her favour, the same was on contractual basis, and her services were regularised in the year 2009. The petitioner has sought relief for coverage of service under the OCS (Pension) Rules, 1992 and the GPF (Odisha) Rules, 1938 although the State Government have introduced new restructured defined contribution pension scheme with effect from 01.01.2005 in tune with the principle adopted by the Central Government effective in respect of Central Government employees with effect from 01.01.2004. He Page 13 of 33 further contended that the petitioner has claimed that her previous engagement as a contractual employee should be considered, as is made applicable in respect of work- charged employees and job contract employees. According to him, as a policy decision, the State Government have adopted fixed term based contractual mode of engagement of personnel in different establishments with payment of definite sum of remuneration. Accordingly, such personnel have been engaged on fixed term basis and such engagement is not extended with any service benefits as applicable to a regular Government Servant. 4.1. It is further contended that the State Government have taken austerity measures due to mounting revenue deficits. With a view to rightsizing the establishments, the base level posts were downsized and to meet the exigencies, temporary contractual posts were created for a fixed term and appointments were made on contractual basis. The petitioner, being sponsored by the Chairman, Committee of the Chief Engineers and concerned Heads of Department and Engineer-in-Chief Page 14 of 33 (Civil), Odisha, Bhubaneswar, was initially engaged on contractual basis under term engagement and, therefore, she is not entitled to get the benefit as claimed in the present writ petition. Thereby, the Tribunal is well justified in passing the order impugned, which does not warrant interference by this Court at this stage.
5. This Court heard Mr. Budhadev Routray, learned Senior Advocate appearing along with Mr. J. Biswal, learned counsel for the petitioner and Mr. A.K. Mishra, learned Addl. Government Advocate appearing for the State-opposite parties in hybrid mode and perused the records. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission.
6. Regard being had to the facts and rival contentions, as narrated above, the only question to be determined by this Court is, whether the petitioner, who was initially appointed on contractual basis prior to Page 15 of 33 01.01.2005 and subsequently regularised after 01.01.2005, can be extended with the benefit of the OCS (Pension) Rules, 1992 and the GPF (O) Rules, 1938 or not?
7. There is no dispute before this Court that the petitioner was appointed on contractual basis pursuant to the appointment order issued on 07.07.2003, as per the prevailing 1972 Rules and the guidelines issued from time to time, being sponsored by the Chairman, Committee of the Chief Engineers and concerned Heads of Department and Engineer-in-Chief (Civil), Odisha, Bhubaneswar. Even though such order of appointment was issued on contractual basis, that itself was against a substantive vacancy. Merely because the Government had taken austerity measures due to mounting revenue deficits, the petitioner was given appointment on contractual basis for fixed term and on completion of six years her services were regularised against a substantive vacant post. This itself indicates that a right had been accrued in favour of the petitioner, the day she joined in the post on contractual basis and subsequently regularised in the said post on Page 16 of 33 completion of six years of service. By the time the appointment on contractual basis was given on 07.07.2003, the OCS (Pension) Rules, 1992 was in force. Therefore, rightly after completion of six years of service on contractual basis, when the petitioner was brought to the regular establishment, her GPF account was opened and GPF number was allotted in her favour by the opposite parties, bringing her into the pensionable establishment. But all of a sudden, the benefit, which had been extended in favour of the petitioner by opening the GPF Account, was withdrawn on the sole ground contending that by the date of regularisation of the services of the petitioner since the OCS (Pension) Amendment Rules, 2005 has already come into force, the petitioner cannot be brought into the fold of the OCS (Pension) Rules, 1992. But fact remains, if the posts are made available prior to the commencement of the OCS (Pension) Amendment Rules, 2005 giving effect from 01.01.2005, the petitioner ought to have been covered under the old rules, i.e. OCS (Pension) Rules, 1992, instead of bringing her under the OCS (Pension) Amendment Rules, Page 17 of 33 2005, i.e., New Restructured Defined Contribution Pension Scheme, which has come into force with effect from 01.01.2005.
8. In G.P. Doval (supra), the apex Court held that if the first appointment is made by not following the prescribed procedure but later on the appointee is approved making his appointment regular, it is obvious commonsense that in the absence of a contrary rule, the approval which means confirmation by the authority which had the authority, power and jurisdiction to make appointment or recommend for appointment, will relate back to the date on which first appointment is made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation.
9. G.P. Doval (supra) has also been referred to in S. Sumnyan (supra), wherein, the apex Court at paragraph- 34 of the said judgment observed as follows:-
"34. We may here also appropriately refer to another decision of this Court in the case of G.P. Doval v. Chief Secy., Govt. of U.P. reported in (1984) 4 SCC 329, wherein this Court held that regularization of the services of a person, whose Page 18 of 33 initial appointment although not in accordance with the prescribed procedure but later on approved by an authority having power and jurisdiction to do so would always relate back to the dates of their initial appointment. Para 13 is, which is reproduced hereinbelow:
"13. ..........................If the first appointment is made by not following the prescribed procedure but later on the appointee is approved making his appointment regular, it is obvious commonsense that in the absence of a contrary rule, the approval which means confirmation by the authority which had the authority, power and jurisdiction to make appointment or recommend for appointment, will relate back to the date on which first appointment is made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. That has not been done in this case.................. ........"
10. If the above mentioned principle is applied to the present case, it would be seen that the petitioner herein was appointed on contractual basis, pursuant to the order of appointment issued on 07.07.2003, and thereafter her services were regularised on completion of six years and she was allotted with GPF Account bearing No. PW-068189, right from her regularisation, monthly subscriptions towards GPF account were deducted from her salary. Therefore, subsequent denial of such benefit is arbitrary, Page 19 of 33 unreasonable and contrary to the provisions of law and, as such, is hit by Article 14 of the Constitution of India.
11. It is of relevance to mention here that some of the Junior Assistants, who were appointed on contractual basis with consolidated remuneration in different Heads of the Department in the year 2003 and subsequently brought over to regular establishment, like the present petitioner, had preferred O.A. No. 2984 (C) of 2006 and batch for their regularization and for counting of their period of service rendered by them from the date of their actual joining till regular appointment as qualifying service period for the purpose of pension under the OCS (Pension) Rules, 1992. The Tribunal, vide order dated 26.03.2009, allowed the aforesaid Original Applications. The said order of the Tribunal was challenged by the Government in Finance Department before this Court in W.P.(C) No. 12569 of 2010, and the said writ petition was dismissed vide order dated 23.02.2012. Consequentially, in adherence to the direction of the Tribunal, which was confirmed by this Court by dismissing the writ petition filed by the State on 23.02.2012 Page 20 of 33 in W.P.(C) No. 12569 of 2010, the Finance Department extended the benefit of the OCS (Pension) Rules, 1992 and the GPF (O) Rules, 1938 to the employees similarly situated with the present petitioner. Thereby, the Tribunal has committed gross error apparent on the face of the record and, without taking into consideration the above aspect in its proper perspective, directed the State Government to take a decision regarding applicability of the resolution dated 04.04.2007 to the Junior Engineers engaged on contractual basis, which is absolutely fallacious and, therefore, the same cannot be sustained in the eye of law.
12. The circular, which was issued on 04.04.2007 by the Government of Odisha in Finance Department bearing No. 17114 (255/F) / PEN-7/07 dated 04.04.2007, reads as follows:-
"GOVERNMENT OF ORISSA FINANCE DEPARTMENT No. 17114 (255/F) PEN-7/07 From Shri K.C. Mishra, Joint Secretary to Government.
To The Principal Secretaries/ Commissioner-cum-Secretaries/ Special Secretaries to Government.Page 21 of 33
All Departments/ All Heads of the Departments/ All Collectors.
Sub: Applicability of new restructured defined contribution pension scheme in case work charged employees and job contract employees who were appointed prior to 01.01.2005 and subsequently brought over to the regular establishment on or after 01.01.2005- Clarification regarding.
Bhubaneswar, the 4th April, 2007. Sir, I am directed to say that the State Government has introduced the new restructured defined contribution Pension Scheme for the new entrants in the State Government service with effect from 1.1.2005 vide Finance Department Notification No. 44451/F dt. 17.9.2005.
Now doubts have arisen in certain quarters as to whether the above new pension scheme would be applicable in case of work charged employees and job-contract employees who are appointed as such prior to 1.1.2005 and subsequently brought over to regular establishment on or after 1.1.2005.
After careful consideration of the above aspect, it has now been clarified that the persons who are appointed under Job-Contract and Work Charged Establishment prior to 01.01.2005 and brought over to the regular establishment on or after 01.01.2005 are not to come under the coverage of OCS (Pension) Amendment Rules 2005 as notified in Finance Department Notification No. 44451/F dated 17.09.2005. Their cases would be governed in terms of the OCS (Pension) Rule, 1992 and existing GPF (O) Rules would be applicable to them.
Yours faithfully, Sd/-
Joint Secretary to Government."Page 22 of 33
On perusal of the aforementioned Government Circular, it is made clear that the Government has clarified that the persons, who are appointed under the job-contract and work charged establishment prior to 01.01.2005 and brought over to the regular establishment on or after 01.01.2005, are not to come under the coverage of the OCS (Pension) Amendment Rules, 2005, as notified in Finance Department Notification No. 44451/F dated 17.09.2005. Their cases would be governed in terms of the OCS (Pension) Rules, 1992 and the existing GPF (O) Rules, 1938 would be applicable to them.
13. "Job Contract", as it is understood, in relation to an employee, means the nature of the work which he is employed to do in accordance with his contract and the capacity and place in which he is so employed.
14. In State of Rajasthan v. Kunji Raman, AIR 1997 SC 693, the apex Court held that the expression "work-charged employees" means employees engaged on a temporary basis for the execution of a specified work. Page 23 of 33
15. In Jaswant Singh v. Union of India, (1979) 4 SCC 440, the apex Court held that the "work-charged employees" are those employees who are engaged on a temporary basis and the wages and allowances are chargeable to works and their appointments are made for the execution of a specified work. From very nature of their employment, the services of such employees automatically come to an end on the completion of the works for the sole purpose of which they are employed.
16. Looking into the meaning attached to the words "job-contract" and "work-charged" employees, if their services have been regularised after commencement of the O.C.S. (Pension) Amendment Rules, 2005, i.e. after 01.01.2005, even though they were continuing in service prior to commencement of the said rules and the Government in their wisdom decided to bring them under the OCS (Pension) Rules, 1992 and GPF (O) Rules, 1938, there is no valid and justifiable reason not to bring the contractual Engineers, like the present petitioner, appointed prior to 01.01.2005 into the fold of the OCS Page 24 of 33 (Pension) Rules, 1992 and GPF (O) Rules, 1938. The impugned action of the State authorities is absolutely an outcome of non-application of mind, reason being the contractual employees stand altogether on a different footing than that of the job-contract and work-charged employees, for whom, by issuing the circular dated 04.04.2007, the benefit has been extended.
17. In the above view of the matter, the petitioner, who was appointed on contractual basis by following due process of selection and in accordance with the rules and subsequent guidelines, and such contractual appointment having been made as against a substantive vacancy, the Government, on the plea of austerity measure, cannot deny the petitioner, after regularisation of her service, to come under the fold of the OCS (Pension) Rules, 1992 and GPF (O) Rules, 1938.
18. In the above context, it is profitable to refer to the judgment of the apex Court in Habib Khan (supra), wherein it has been held that the period of work-charged Page 25 of 33 service can be reckoned for the purpose of computation of qualifying period for grant of pension. Applying the same analogy to the present case, there cannot be any denial to bring the petitioner to the fold of the OCS (Pension) Rules, 1992 and GPF (O) Rules, 1938.
19. In the Constitution Bench decision, in the case of Chairman, Railway Board and others v. C. R. Rangadhamaiah and others, A.I.R. 1997 SC 3828, the apex Court was considering the amendment brought into Rule-2544 of the Indian Railway Establishment Code, Vol. II (Fifth Reprint), which was given retrospective effect. The said Rule was amended by Notification No. G.S.R. 1143 (E) with effect from 1st January, 1973 and by Notification No. G.S.R. 1144 (E), the amendment was made with effect from 1st April, 1979. The apex Court in paragraph 20 of the said judgment held as follows:-
"20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Page 26 of 33 Constitution to the extent it operates retrospectively".
Again in paragraph 24 of the said judgment in the case of Chairman, Railway Board and others (supra), it was held thus :-
"24. In many of these decisions the expressions "vested rights" or "accrued rights"
have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon (AIR 1967 SC 1889) (supra); B.S. Yadav (AIR 1981 SC 561) (supra) and Raman Lal Keshav Lal Soni (AIR 1984 SC 161) (supra)".
20. Ultimately, it was held by the apex Court that the impugned amendments, in so far as they have been given retrospective operation, are violative of the rights guaranteed under Articles 14 & 16 of the Constitution on the ground that they are unreasonable and arbitrary, since Page 27 of 33 the said amendments have the effect of reducing the amount of pension that has become payable to the employees, who had already retired from service on the date of issuance of the notifications as per the provisions contained in Rule 2544 that were in force at the time of their retirement.
21. The aforesaid Constitution Bench decision, therefore, has emphasized with regard to the right of an employee, which has accrued in his favour on the date he retired and such right cannot be taken away by amending the Rules retrospectively prior to his retirement.
22. In the case of State of Madhya Pradesh and others v. Yogendra Shrivastava, (2010) 12 SCC 538, the apex Court was considering the amendment brought to Madhya Pradesh Employees' State Insurance Service (Gazetted) Recruitment Rules, 1981 by notification dated 20.05.2003 giving it a retrospective effect from 14.10.1982. By the said amendment, the earlier provision in the Rule prescribing payment of None Practising Allowance @ 25% of Page 28 of 33 pay was amended to the effect that "NPA at such rates as may be fixed by the State Government from time to time by the orders issued in this behalf" in place of words "NPA @ 25% of the pay" wherever they occurred in the Rules.
23. On considering the said question, the apex Court, in paragraph 15 of the said judgment in the case of State of Madhya Pradesh (supra) held as follows:-
"15. It is no doubt true that Rules made under Article 309 can be made so as to operate with retrospective effect. But it is well settled that rights and benefits which have already been earned or acquired under the existing Rules cannot be taken away by amending the Rules with retrospective effect. (See N.C. Singhal v. Armed Forces Medical Services ; K.C. Arora v. State of Haryana and T.R. Kapur v. State of Haryana). Therefore, it has to be held that while the amendment, even if it is to be considered as otherwise valid, cannot affect the rights and benefits which had accrued to the employees under the unamended rules. The right to NPA @ 25% of the pay having accrued to the respondents under the unamended Rules, it follows that respondent employees will be entitled to the non-practising allowance @ 25% of their pay up to 20-5-2003."
24. In a large number of cases, the apex Court has categorically laid down that the right of an employee, which accrued in his favour on the date of appointment, cannot be taken away by the amending provisions of the Rules concerning the service with retrospective effect. An Page 29 of 33 employee, while entering into service, is subjected to the condition of service as on the date, when he joins. Any right given to such employee under the provision of any Act or Rules governing the employment, if taken away by amending such Rules with retrospective effect, the same would be violative of Articles 14 & 16 of the Constitution and it would amount to an arbitrary and unreasonable action.
25. Taking into consideration the above principles laid down by the apex Court, this Court, in the case of Anand Dash and seven others v. State of Orissa and others, along with batch of matters, as reported in 2014 (Supp.-I) OLR 754, held that since vacancies were made available prior to commencement of OCS (Pension) Amendment Rules, 2005 on 17.09.2005 giving the same effective with effect from 01.01.2005, the advertisement was issued to fill up such vacancies prior to commencement of such rules and on that basis they were selected and appointed on 02.04.2005, i.e., prior to commencement of such rule, but after the effective date of commencement of Page 30 of 33 the OCS (Pension) Amendment Rules, 2005, i.e., 01.01.2005, and further more since similar benefit had already been extended to 13 number of OES Officers, such employees are to be covered under the OCS (Pension) Rules, 2005 and GPF (O) Rules, 1938. The said judgment of this Court was assailed by the State Government before the apex Court in Special Leave to Appeal (C) Nos. 35462- 35464 of 2014 and the apex Court observed that there is no cogent reason to entertain the petitions and accordingly the said petitions were dismissed vide order dated 09.03.2018.
26. Applying the said analogy to the present case, if the petitioner was appointed against the substantive vacancy on 07.07.2003, i.e., prior to commencement of the OCS (Pension) Amendment Rules, 2005, may be on contractual basis, and discharging her responsibility and subsequently her services were regularised after completion of six years uninterrupted contractual employment, even though the OCS (Pension) Amendment Rules, 2005 came into force with effect from 01.01.2005, that has no application to the present case and the petitioner is entitled Page 31 of 33 to such relief from the date of her initial appointment and not from her regularisation of service after completion of her six years of contractual employment. Under such circumstances, the Tribunal should not have remanded the matter to the State Government for consideration, so far as applicability of the circular issued on 04.04.2007. Even otherwise also, if the benefit has already been extended to the job-contract and work-charged employees, the contractual employee appointed against the substantive vacancy stands on a much better footing than those persons, for which the benefit should have been extended to the petitioner by reckoning her service from the date of initial appointment on contractual basis, otherwise, it will amount to unreasonable and arbitrary exercise of power and, more so, violation of Articles 14 and 16 of the Constitution of India.
27. In view of the facts and law, as discussed above, the order dated 21.09.2016 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 3422 (C) of 2012 under Annexure-9 cannot be Page 32 of 33 sustained in the eye of law and the same is hereby set aside. As a consequence thereof, this Court directs the opposite parties to bring the petitioner to the fold of the OCS (Pension) Rules, 1992 and the GPF (O) Rules, 1938 by reckoning her date of initial appointment on contractual basis, i.e., on 07.07.2003.
28. In the result, therefore, the writ petition is allowed. But, however, under the facts and circumstances, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 22nd September, 2023, Arun
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: Orissa High Court Date: 22-Sep-2023 16:52:37 Page 33 of 33