Orissa High Court
) Biswabhusan Dash vs ) State Of Odisha ..... Opposite Parties on 25 April, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OAC) No.546 of 2019
1) BiswaBhusan Dash ..... Petitioners
2) Ajay Kumar Jena Mr. J.K. Rath, Sr. Advocate
3) Ananta Kumar Sahani along with
Mr. A.K. Saa, Advocate
-versus-
1) State Of Odisha ..... Opposite Parties
2) Director, Indian Medicine And Mr. S. Jena, AGA
Homeopathy
3) Commnr.cum SECY. Finance Deptt.
4) Director Of Ayush
CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
25.04.2024 Order No.26
1. This matter is taken up through hybrid mode.
2. Heard Mr. J.K. Rath, learned Sr. Counsel appearing for the Petitioners along with Mr. A.K. Saa and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties.
3. Petitioners have filed the present writ petition inter alia with the following prayer:-
"Under the above circumstances, it is, therefore, humbly prayed that this Hon'ble Tribunal be graciously pleased to direct the opposite parties to treat the petitioners as the appointees of the year 1997 and the seniority of the petitioners be fixed in accordance with the positions occupied by the petitioners in the merit list prepared for recruitment to the post of Homeopathic Assistant in the year 1997 and accordingly the petitioners to be pu under the old put OCS (Pension) Rules, 1992 and the old GPF Rules and not under the new pension rules.Page 1 of 15.
And the Hon'ble Court be further pleased to quash the order passed by the Opposite Party No.2 in Annexure- 12 pertaining to the appointment of above candidates are subject to condition that they shall be enrolled under the new pension scheme as per the provision of O.C.S. (Pension) Rules 1992 amended in the Finance Department Notification No.44451/F dated 17.09.2005."
4. At the outset, learned Sr. Counsel appearing for the Petitioners fairly contended that the writ petition be confined with regard to extension with the benefit of coverage under OCS (Pension) Rules, 1992 and GPF (Odisha) Rules, 1938.
5. It is the case of the Petitioners that pursuant to the advertisement issued by the Director, Indian Medicines and Homeopathy, Odisha, Bhubaneswar (now designated as Director, AYUSH) on 04.03.1996 under Annexure-3, Petitioners participated in the selection process as against the post of Homeopathic Assistant. After such participation in the selection process, in the select list published in the Health & Family Welfare Department on 27.02.1997, names of the present Petitioners were reflected at Sl. No. 18, 22 & 32 respectively, so available at Annexure-A to the counter affidavit.
5.1. Learned Sr. Counsel appearing for the Petitioners contended that even though Petitioners were placed at Sl. No. 18, 22 & 32 of the select list in terms of the selection process conducted pursuant to Annexure-3, but on the ground that Petitioners have not obtained the Pharmacy completion certificate fromOdisha State Board of Homeopathic Medicines, Bhubaneswar, Petitioners were not provided with the appointment even though persons placed below them in the select list so available at Annexure-A to the counter Page 2 of 15. affidavit were provided with the appointmentvide order dtd.16.05.1997.
5.2. It is the further case of the Petitioners that Petitioners after completing their Diploma in Homeopathic Pharmacy though moved the Odisha State Board of Homeopathic Medicine, Bhubaneswar for issuance of the Pharmacy completion certificate, but the same when was not issued, a writ petition was filed before this Court in OJC No. 7920 of 1992. This Court vide order dtd.01.09.1994 while disposing the matter, directed the Board to pass appropriate order with regard to grant of such certificate in accordance with the direction of the State Govt. so issued on 31.12.1993. However, on the face of such order passed by this Court on 01.09.1994 vide Annexure-2, the required certificate i.e. Pharmacy completion certificate was never issued by the Board in question.
5.3. However, in the meantime since the advertisement was issued on 04.03.1996 vide Annexure-3, Petitioners took part in the selection process and were also enlisted in the select list published vide Annexure-A to the counter.But on the ground that Petitioners don't have the Pharmacy completion certificate, they were not provided with the appointment, though persons placed below thePetitioners were extended with such benefit vide order dt.16.05.1997.
5.4. It is contended that challenging such in action on the part of the Board in not issuing the Pharmacy completion certificate, Petitioners again approached this Court in OJC No. 2637 of 1996. This Court vide order dtd.02.04.1997 while taking up the matter also passed an interim order that no action shall be taken against the Page 3 of 15. Petitioner basing on the letter issued by the Director of Indian Medicines & Homeopathic, Odisha on 18.03.1997, vide Annexure-4 series. Vide letter dt.18.03.1997 Petitioners were directed to produce the Pharmacy completion certificate by 02.04.1997, failing which they will not be entitled for their appointment to the post of Homeopathic Assistant. The said writ petition was finally disposed of vide Judgment dtd.11.09.2002 inter alia with the following direction:-
"7. The Board will take a decision on the basis of whatever materials are available with the Board as to whether or not a completion certificate is to be issued to any student in terms of the Government letters dated 23.8.1991, 31.12.1993 and 25.1.1994. Obviously. the Board being a statutory authority under the Orissa Homoeopathic Act, 1956, will have to arrive at its own decision on the basis of the materials available before it as to whether any student genuinely undertook the Pharmacy Course and completed the same. Such decision will have to be taken by the Board in a fair and reasonable manner and in a manner which is not arbitrary, unfair and unreasonable. The Board will have to keep in mind that the claim of the students is that they had undertaken the course for long two years and had paid the required fees to the College in question for the course. The Board will also have to keep in mind the fact that no student who has notgenuinely undertaken the course or has not completed the course is issued with any such certificate. We are sure that the Board will strike a proper balance between claim of the students and the standards to be maintained in relation to Homoeopathic training and take the final decision with regard to each student and intimate its decision to each of the students within a period of six months from today. In case the Roard decides in any particular case not to issue a completion certificate, it must indicate its reasons to the concerned student by a written order as to why the Board has not thought fit and proper to issue the completion Page 4 of 15. certificate in favour of that student. We are told that the Board is presently a single member Board and the only member of the Board has been designated as the President Of the Board. This entire exercise, as directed, will be done under the supervision of the President of the Board in accordance with the observations in this Judgment."
5.5. It is contended that pursuant to the order passed by this Court in the aforesaid writ petition on 11.09.2002, Pharmacy completion certificate were issued by the Board on 30.08.2003 vide Annexure-7 series. In spite of being provided with the Pharmacy completion certificate, when Petitioners were not provided with the appointment, they again approached the Tribunal by filing O.A. No. 2048(C) of 2008 inter alia with the following prayer:-
"In view of the above facts mentioned in paragraph-6 above, the applicants pray for the following relief:-
Under the above circumstances, it is, therefore, humbly prayed that this Hon'ble Tribunal be graciously pleased to direct the opposite parties, more particularly the opposite party no. 2 to issue the necessary appointment orders in favour of the petitioners to the post of Homeopathic Assistants without any further delay."
5.6. The Tribunal vide order dtd.13.09.2012 under Annexure-11 while disposing the matter, directed Opp. Parties to issue order of appointment in favour of the present Petitioners as against the post of Homeopathic Assistant. Pursuant to the said order, Petitioners were provided with the appointment vide order dtd.04.02.2013 under Annexure-12.
5.7. Learned Sr. Counsel appearing for the Petitioners contended that since Petitioners participated in the selection process so initiated Page 5 of 15. in the year 1996 and they were also placed in the merit list vide Sl. No. 18, 22 & 32 under Annexure-A on 27.02.1997, but because of the in action of the Odisha State Board of Homeopathic Medicine in not issuing the Pharmacy completion certificate, they could not get the benefit of appointment, though persons similarly situated and enlisted in the merit list so available under Annexure-A were provided with such appointment vide order dtd.16.05.1997.
5.8. It is also contended that on the face of the order passed by this Court in OJC No. 7920 of 1992, Petitioners were also never issued with the completion certificate. Not only that on the face of the matter pending before this Court in OJC No. 2637 of 1996 with passing of an interim order on 02.04.1997 vide Annexure-5, where Odisha State Board of Homeopathic Medicine was arrayed as Opp. Party No. 3, such completion certificates were never issued till the matter was ultimately disposed of by this Court on 11.09.2002 vide Annexure-6.
5.9. It is also contended that pursuant to the order passed by this Court on 11.09.2002 in OJC No. 2637 of 1996, Petitioners though were issued with the Pharmacy completion certificates on 30 th August, 2003 vide Annexure-7 series, but Petitioners were never provided with the appointment, resulting therein Petitioners again approached the Tribunal in O.A. No. 2048(C) of 2008. Only when the Tribunal directed the Opp. Parties to provide appointment vide order dtd.13.09.2012 under Annexure-11, Petitioners were provided with such appointment vide order dtd.04.02.2013 under Annexure-
12. Page 6 of 15. 5.10. Mr. Rath, learned Sr. Counsel accordingly contended that since because of the latches on the part of the Opp. Parties, more particularly Opp. Party No. 5, Petitioners could not get the benefit of appointment vide order dtd.16.05.1997, when similarly situated selected candidates were so appointed, Petitioners not only lost their seniority vis-a-vis those appointees but also they were deprived from being covered under the provisions of OCS (Pension) Rules, 1992 and GPF (Odisha) Rules, 1938. Accordingly, claiming such benefits, the present writ petition was filed for extension of the benefit of seniority and coverage under the OCS (Pension) Rules, 1992 and GPF (Odisha) Rules, 1938. But since Mr. Rath, learned Sr. Counsel fairly contended that the claim be confined with regard to coverage under the OCS (Pension) Rules, 1992 and GPF (Odisha) Rules, 1938, the writ petition was considered with such prayer so made by the learned Sr. Counsel.
6. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand basing on the stand taken in the counter affidavit contended that even though pursuant to the advertisement issued on 04.03.1996 under Annexure-3, Petitioners were enlisted in the select list so published vide Annexure-A to the counter and were placed at Sl. No. 18, 22 & 32, but since they could not produce the Pharmacy completion certificate, which is a requirement to get the benefit of appointment, they were not provided with the appointment even though persons placed below them were provided with the appointment vide order dtd.16.05.1997.
6.1. It is contended that pursuant to the order passed by this Court in OJC No. 2637 of 1996, Petitioners though were issued with the Pharmacy completion certificate on 30.08.2003 vide Annexure-7 Page 7 of 15. series, but since by that time the selection process had already been completed, claim of the Petitioners were not considered, only when the Tribunal interfered with the matter vide order dtd.13.09.2012 in O.A. No.2048(C) of 2008,pursuant to the direction issued by the Tribunal, Petitioners were appointed vide order dtd.04.02.2013 under Annexure-12.
6.2. It is further contended that since by the time Petitioners were so appointed, the new pension scheme had already came into existence w.e.f.01.01.2005, Petitioners are not eligible and entitled to get the benefit of coverage under OCS (Pension) Rules, 1992 and GPF (Odisha) Rules, 1938. It is also contended that no such retrospective appointment was prayed for by the Petitioners while approaching the Tribunal in O.A. No. 2048(C) of 2008. It is contended that since no such claim was made in O.A. No. 2048(C) of 2008, similar claim cannot be entertained in the present writ petition.
7. To the submission made by Mr. Jena, Mr. Rath, learned Sr. Counsel contended that similar issue with regard to coverage under OCS (Pension) Rules, 1992 and GPF (Odisha) Rules, 1938 is covered by the decision of this Court in the case of Anand Dash Vs. State of Odisha&Ors., 2014 (I) ILR-CUT-459 and order passed by this Court on 06.05.2022 in the case of JanuBarik Vs. State of Odisha&Ors., W.P.C.(OAS) No. 30 of 2015. This Court in the case of Anand Dash in Para 9 to 18 has held as follows:-
"9. On analyzing the above facts, it is clear that by the dates, when the petitioners were appointed vide Office Order dated 16.3.2005 and consequently joined their new assignments on 2.4.2005, the amended rules were not incorporated. Admittedly, the amendment to the General Provident Fund (Orissa) Rules, 1938 was Page 8 of 15. introduced by notification dated 31.8.2007 and the amendment to the Orissa Civil Service (Pension) Rules, 1992 by incorporating sub-rule (4) after sub-rule (3) in Rule 3 was brought into by notification dated 17.9.2005. It is, therefore, an admitted case that the petitioners by the dates when the amendments were brought into the rules by notifications, were continuing in their services. It is, therefore, to be examined as to whether the amendments brought into the above rules can be made applicable from an earlier date or retrospectively i.e. from 1.1.2005. The further question to be dealt with is as to whether the opposite parties-State by allowing some of its employees to be governed by the Old Pension Rules have discriminated the petitioners thereby violating Articles 14 and 16 of the Constitution.
10. 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 Hon'ble Supreme 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 Hon'ble Supreme 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 retrospectively 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 Constitution to the extent it operates retrospectively."Page 9 of 15.
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)".
11. 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 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.
12. The aforesaid Constitution Bench decision, therefore, has emphasized with regard to the right of an employee, which has Page 10 of 15. 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.
13. In the case of State of Madhya Pradesh and others v. Yogendra Shrivastava, (2010) 12 SC 538, the Hon'ble Supreme 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 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.
14. On considering the said question, the Hon'ble Supreme Court, in paragraph-15 of the said judgment in the case of State of Madhya Pradesh (supra) held as follows :-
15. It is not 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 effect 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-
Page 11 of 15.practicing allowance @ 25% of their pay up to 20.5 2003."
15. In a large number of cases, the Hon'ble 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 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.
16. In the case at hand, as already stated above, all the petitioners joined in their due assignments on 02.04.2005 by which date, the amended Rules were not existing. The said amended Rules, which were introduced by Notification dated 31.08.2007 and 17.09.2005, could not have been given retrospective effect by stating that they will come into operation from 01.01.2005, which is prior to the date, when the petitioners joined in their new assignments.
17. We are, therefore, of the considered view that the said amendments brought to the General Provident Fund (Orissa) Rules, 1938 and the Orissa Civil Service (Pension) Rules, 1992 will not apply to the petitioners, who will be governed by the said Rules as it existed on the date of their joining in service prior to the amendments brought into those Rules.
We also find that the opposite parties-State have discriminated the petitioners, by allowing the benefits under the old Pension Rules and General Provident Fund (Orissa) Rules in the case of 13 regularly recruited OES officers, though they have been appointed on 14.02.2005 and joined in the Government service much after Page 12 of 15. 01.01.2005. the said action on the part of the State also amounts to discrimination and violates Articles 14 & 16 of the Constitution of India.
18. We, therefore, quash the impugned orders by which the representations of the petitioners were rejected arbitrarily inasmuch as without assigning any reason in support of such rejection and direct that the petitioners will be governed by the provisions of the old General Provident Fund (Orissa) Rules, 1938 and the Orissa Civil Service (Pension) Rules, 1992 as it stood prior to the amendments brought into the same and will be entitled to all the benefits, which were provided thereunder prior to such amendments."
7.1. Similarly, this Court in the case of JanuBarikin Para 12 & 17 has held as follows:-
"12. Heard learned counsel for Parties at length. Perused the materials available on record. There is no dispute that pursuant to advertisement issued under Annexure-1 on 19.05.1995, the Petitioner was duly selected with publication of the select list vide notification dtd.07.01.2000 under Annexure-2.
Xxx xxx xxx
17. Accordingly, this Court while allowing the prayer made in the writ Petition directs the Opp. Parties to extend the benefit of coverage under OCS (Pension) Rules, 1992 and the GPF(O) Rules, 1938 in favour of the Petitioner. It is further directed that the Opp. Parties shall complete the entire exercise within a period of 3 months from the date of receipt of this order."
7.2. Placing reliance on the aforesaid decisions, learned Sr. Counsel contended that since the selection process was initiated in the year 1996 and because of the admitted latches on the part of the Opp.
Page 13 of 15.Parties, Petitioners got the benefit of appointment in the year 2013 on the face of their names being reflected in the select list published on 27.02.1997 under Annexure-A, they are eligible and entitled to be covered under the OCS (Pension) Rules, 1992 and GPF (Odisha) Rules, 1938.
8. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that pursuant to the selection process initiated with issuance of an advertisement on 04.03.1996 under Annexure-3 for the post of Homeopathic Assistant, Petitioners being eligible to face the selection process made their applications. As found from Annexure- A to the counter, in the select list so published on 27.02.1997, names of the present Petitioners were found at Sl. No. 18, 22 & 32 respectively. But on the ground of non-production of the Pharmacy completion certificate, Petitioners were not provided with the appointment though persons similarly situated and placed below the Petitioners were provided with such appointment vide order dtd.16.05.1997.
8.1. It is also found from the record that seeking issuance of the Pharmacy completion certificate, a writ petition was filed by the Students' Union before this Court in OJC No.7920 of 1992. On the face of the order passed by this Court on 01.09.1994 under Annexure-2, such certificate was never issued. Not only that when the matter was again carried to this Court in OJC No. 2637 of 1996 with similar prayer and the matter was kept pending before this Court with passing of an interim order on 02.04.1997, but such Pharmacy completion certificate was never issued by the Odisha State Board of Homeopathic Medicine, Odisha, Bhubaneswar-Opp.
Page 14 of 15.Party No. 5. Only when OJC No. 2637 of 1996 was disposed of by this Court vide order dtd.11.09.2002, Petitioners were issued with such Pharmacy completion certificate on 30.08.2003. But as found from the record in spite of being issued with the Pharmacy completion certificate, Petitioners were not provided with the appointment on the face of the interim order passed by this Court on 02.04.1997. Only when the Tribunal disposed of the O.A. vide order dtd.13.09.2012 under Annexure-11, Petitioners were provided with the appointment vide order dtd.04.02.2013.
8.2. In view of such position, it is the view of this Court that the claim of the Petitioners to be covered under OCS (Pension) Rules, 1992 and GPF (Odisha) Rules, 1938 needs a favourable consideration by Opp. Party No. 1. Placing reliance on the decisionsas cited supra and the communication issued by the Govt. in the Health & Family Welfare Department on 04.03.1999 vide Annexure-8, this Court directs Opp. Party No. 1 to take a decision on the claim of the Petitioners to be covered under OCS (Pension) Rules, 1992 and GPF (Odisha) Rules, 1938 within a period of two (2) months from the date of receipt of this order. It is expected that claim of the Petitioners will be considered favourably by Opp. Party No. 1 as Petitioners suffered due to the in action on the part of Odisha State Board of Homeopathic Medicine-Opp. Party No. 5, on the face of two successive orders passed by this Court.
9. The writ petition is accordingly disposed of.
Signature Not VerifiedDigitally Signed (BIRAJA PRASANNA SATAPATHY) Signed by: SNEHANJALI PARIDA Reason: Authentication Judge Location: High Court of Orissa, Cuttack Date: 03-May-2024 11:49:41Sneha Page 15 of 15.