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2012 DIGILAW 73 (ORI)

Manoranjan Mohanty v. State of Orissa

2012-02-09

J.CHAIRMAN, N.PRUSTY

body2012
ORDER 9.2.2012 – The applicant, who is presently working in work-charged establishment as Junior Clerk-cum-Typist under the Administrative control of the Executive Engineer Rairangpur (R&B) Division, Mayurbhanj has filed this O.A. with a prayer for a direction to the respondent No.2 to consider the case of the applicant for regular pension scheme benefit like other workers. Heard Mr. M. Pati, learned counsel for the applicant and Mr. Badjena, learned Standing Counsel. Mr. Pati, learned counsel submits that the applicant was initially engaged as DLR worker on 1.4.1984 as against a clerical post. While continuing as such he was brought over to work-charged establishment with effect from 14.1.2011. The next stage so far as the applicant is concerned, he is to be brought over to wages/regular establishment for enabling him to be eligible for pension. Since the applicant is going to retire on attaining the age of superannuation on 29.2.2012, if prior to that date he is not brought over to wages/regular establishment, he shall not be entitled for pension. In that view of the matter highlighting all his grievances as has been made in this O.A. the applicant had initially made a representation to the Superintending Engineer, Eastern Circle (R&B), Balasore through proper channel i.e. Executive Engineer, Rairangpur (R&B) Division on 28.6.2011. After receipt of the representation of the applicant the Superintending Engineer forwarded the same to the Engineer-in-Chief (Civil), Odisha vide letter dated 26.8.2011 (Annexure-9). Since the applicant's representation was not considered, again the applicant had approached the E.I.C.-cum-Secretary to Government of Odisha in works Department, by way of filing another representation on 15.11.2011. Since no final decision has been taken by the authority concerned on his representation till date, he has filed this O.A. with the prayer as mentioned above. In that view of the matter appropriate order may be issued at this stage to the respondent No.1 to consider the grievances of the applicant as has been made in his representation dated 15.11.2011, treating the contents of the O.A. as a part thereof and dispose of the same within the time stipulated, preferably prior to the date of retirement of the applicant, so that if the decision goes in favour of the applicant on disposal of his representation, he shall be entitled to pensionary benefits. Mr. Mr. Badajena, learned Standing Counsel submits that a two-Member Bench of the Principal Bench of this Tribunal have already disposed of O.A. O.A.404/2000 & batch, which are relating to regularization of NMR/ DLR/work-charged employees vide order dated 24.6.2010. Following the direction of the Hon'ble Supreme Court while disposing of the Civil Appeal No.1915 of 2003 and C.A. No.1916/2003 arising out of O.A.447/2006 (Hrusikesh Singh v. State and others) and after a detailed examination of the case of the applicants, the rules/orders position and also keeping in view various judicial pronouncements, this Tribunal disposed of the said batch of cases with the following observation/direction : "12. We are, therefore, unable to endorse the prayer of the retired applicants of work charged establishment either for their regularization or for grant of pensionary benefits as applicable to the persons under regular establishment. We, however, observe that such of the work-charged employees who are still in service may be considered for being brought over to regular establishment, as per their position in the seniority list, if found suitable, subject to availability of post under regular establishment and in accordance with the terms and conditions prescribed in various orders of the State issued since 22.1.1965 provided they agree to forego the retirement benefits receivable by them under 1974 Instruction." In the instant case unless the turn of the applicant comes after all other persons senior to him in the seniority list are brought over to wages/ regular establishment, the applicant can never be brought over to wages/ regular establishment for being eligible for pensionary benefits. The applicant shall have a good case if any junior to him has already been brought over to wages/regular establishment. Learned counsel further submits that even if the applicant is brought over to the wages/regular establishment, he shall be entitled for the retrial benefits as is presently applicable to the regular employees working under the Government as per the prevailing Rules, but he shall not be entitled for regular pension since the benefit of regular pension has already been withdrawn and a new scheme i.e. Contribution Pension Scheme has been introduced for new entrants in the State Government Service w.e.f. 1.1.2005 vide Office Memorandum No. Pen-40/2005-30132/F dated 13.7.2006. Considering the submissions made by the learned counsel for both the parties and keeping in view of the decision of the Hon'ble Supreme Court as well as this Tribunal. Considering the submissions made by the learned counsel for both the parties and keeping in view of the decision of the Hon'ble Supreme Court as well as this Tribunal. I am of the considered view, unless the applicant's turn comes on the basis of his position in the seniority list of work-charged employees, the applicant shall not be eligible for being brought over to the wages/regular establishment. Be that as it may, since the applicant's representation is still pending consideration before the E.I.C.-cum-Secretary to Government, Works Department since 15.11.2011, respondent No.1 shall be at liberty to consider the representation of the applicant, treating the contents of the O.A. as a part thereof on its own merit and dispose of the same in accordance with law, keeping in view the position of the applicant in the seniority list of work-charged employees, on the basis of his date of joining and in case anyone of the work-charged employees whose names find place below the applicant has already been brought over to wages/ regular establishment, then the applicant be brought over to wages/ regular establishment from the date his immediate junior was brought over to wages/regular establishment. Respondent No.1 is at liberty to take his independent decision in the matter on its own merit and dispose of the representation of the applicant in accordance with law, for which this Tribunal expresses no opinion. The O.A. is accordingly disposed of with the above observation/direction. Order be communicated to all the respondents along with copy of the O.A. by special messenger forthwith at the cost of the applicant. O.A. disposed of.