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2019 DIGILAW 491 (ORI)

Ardhendu Sekhar Rath v. State of Odisha

2019-07-30

B.R.SARANGI

body2019
JUDGMENT : Dr. B.R. Sarangi, J. 1. The petitioners, who are erstwhile employees of Odisha Construction Corporation Limited (OCCL), seek to quash order dated 11.08.2014, whereby office order dated 31.07.2014 allowing the employees of the Corporation, who were to superannuate on attaining the age of 58 years on 31.07.2014, 31.08.2014 and 30.09.2014, to continue in service upto 31.10.2014 has been cancelled with immediate effect, and further seek for direction to the opposite parties to extend their age of retirement from 58 to 60 years, pursuant to the resolution passed by the Finance Department, Government of Orissa dated 28.06.2014 in Annexure-1, and grant all consequential benefits as due and admissible to them. 2. The factual matrix of the case, in hand, is that the petitioners, on 05.05.2014, were served with notices of their retirement on attaining the age of superannuation of 58 years w.e.f. 31.07.2014. The Government of Orissa in its Finance Department resolution dated 28.06.2014 enhanced the retirement age of its employees on superannuation from 58 to 60 years with immediate effect, i.e., from 28.06.2014 by amending the Code 71 (a) of Orissa Service Code. The OCCL circulated office order dated 31.07.20.14 to retain the services of the retiring employees up to 31.10.2014 or till receipt of order of Public Enterprises Department, in this regard, whichever would be earlier. The resolution dated 02.08.2014 of the Public Enterprises Department, regarding enhancement of age of retirement on superannuation of the employees of the State Public Sector Undertakings from 58 to 60 years, was received on 04.08.2014 with a stipulation that the Public Sector Undertakings (PSUs) fulfilling the specified preconditions, have to place a proposal for enhancement of age of superannuation before the Board of Directors. Consequent upon such stipulation, the proposal for retention of the service of retired employees was withdrawn by OCCL vide order dated 11.08.2014. Therefore, OCCL issued order dated 11.08.2014 to the petitioners for their retirement from service, followed by relieve orders directing them to handover charges to their controlling authority. But such office orders could not be served on the petitioners, due to their refusal to receive the same, as per the reports of the special messenger, who had been to their residential quarters, and remarks of the postal department. 3. But such office orders could not be served on the petitioners, due to their refusal to receive the same, as per the reports of the special messenger, who had been to their residential quarters, and remarks of the postal department. 3. The Board of Directors of OCCL, on examination of letter dated 02.08.2014 of Public Enterprises Department and the pre-conditions for enhancement of retirement age, resolved that the retirement age of its employees be enhanced from 58 to 60 years and, accordingly, vide letter dated 28.08.2014, OCCL requested the Government to approve the proposal. Consequently, Addl. Secretary to the Government in the Department of Water Resources communicated approval of the Government, vide letter dated 17.09.2014, for extension of retirement age of regular, work charged regular and work charged employees of OCCL, including employees of central workshop cadre, from 58 to 60 years, as per Public Enterprises Department resolution dated 02.08.2014. As a consequence thereof, OCCL issued implementation order on 19.09.2014 for extension of retirement age of its employees from 58 to 60 years giving effect from that date. The petitioners, who were to retire from service w.e.f. 31.07.2014 and whose services had been extended upto 31.10.2014 and allowed to continue till 11.07.2014, being aggrieved by the decision so taken by the OCCL on 19.09.2014 extending the age of service from 58 to 60 years in respect of similarly situated employees, have approached this Court by filing the present application, and contend that similar benefits should be extended allowing them to continue till attaining the age of 60 years. 4. Mr. A.K. Mohapatra, learned counsel appearing for the petitioners in W.P.(C) No. 15328 of 2014 contended that the petitioners, who were working as Manager (F & A) and Dy. 4. Mr. A.K. Mohapatra, learned counsel appearing for the petitioners in W.P.(C) No. 15328 of 2014 contended that the petitioners, who were working as Manager (F & A) and Dy. Manager (F & A) respectively in the office of OCCL (a State PSU), though issued with notices to superannuate from service on attaining the age of superannuation on 31.07.2014, but subsequently, on the basis of the resolution passed by the Finance Department on 28.06.2014, by which the retirement age of the State Government employees for superannuation was enhanced from 58 to 60 years, by amending Rule-71(a) of the Odisha Service Code, the OCCL, in anticipation of the government approval to the extension of age of superannuation of its employees from 58 to 60 years, enhanced the date of superannuation of the petitioners, who were to be superannuated from "service on attaining the age of 58 years on 31.07.2014, till 31.10.2014 or till receipt of orders of Public Enterprises Department, whichever is earlier. It is contended that on 02.08.2014, the Principal Secretary, Department of Public Enterprises, Government of Odisha issued clarification regarding enhancement of retirement age on superannuation of the employees of State Public Sector undertakings from 58 to 60 years subject to fulfillment of certain conditions and, as such, by that time the petitioners were continuing in service. But all on a sudden, on 11.08.2014, the Managing Director of OCCL revoked the extension order regarding continuance of service of the petitioners upto 31.10.2014, which is nonest in the eye of law, in view of the fact that when the Board of Directors of OCCL took decision with regard to enhancement of retirement age of its employees from 58 to 60 years w.e.f. 19.09.2014, the same benefit should have been extended to the petitioners without cancelling the continuance order of the petitioners upto 31.10.2014. It is also contended that OCCL followed the State Government rules and procedure for its employees by passing various resolutions, therefore applying the said resolution with regard to acceptance of the Odisha Service Code, which is applicable to the employees of OCCL, the benefit of enhancement of retirement age should have been extended to the petitioners in consonance with the Government resolution passed on 28.06.2014. Further, since OCCL had satisfied the subsequent resolution published by the Public Enterprises Department on 02.08.2014, as a consequence of which, the proposal submitted by the Board of Directors of OCCL was duly approved by the Government allowing extension of retirement age of OCCL employees from 58 to 60 years on 19.09.2014, the said benefit should have been extended to the petitioners who were to retire in the interregnum period between 31.07.2014 and 31.08.2014, without making any discrimination thereof. It is further contended that similar question had come up for consideration before this Court in the case of Premalata Panda v. State of Orissa, 2015 (II) OLR 214 , and the petitioners herein, having stood in the same footing, should have been extended with the benefits flowing from the said judgment. 5. Mr. S. Senapati, learned counsel appearing for the petitioner in W.P.(C) No. 16081 of 2014 adopted the argument advanced by Mr. A.K. Mohapatra, learned counsel appearing for the petitioners in W.P.(C) No. 15328 of 2014, and contended that the petitioner, having stood in similar footing with the existing employees of the OCCL, should have been extended the benefit of extension of age of superannuation from 58 to 60 years, by quashing the order dated 11.08.2014. To substantiate his contention, he has relied upon the judgment of this Court in Digambar Behera v. State of Orissa, (2017) 2 ILR CUT 876. 6. Mr. S. Mishra, learned Addl. Government Advocate contended that whether the retirement age of the petitioners will be extended from 58 to 60 years pursuant to resolution passed by the Finance Department on 28.06.2014 and subsequent resolution passed by the Public Enterprises Department on 02.08.2014, the same is within the domain of OCCL, on which the State has no role to play. As a matter of fact, the Government in its resolution dated 28.06.2014 amended Rule-71(a) of Odisha Service Code and enhanced retirement age of its employees from 58 to 60 years. In pursuance thereof, Public Enterprises Department passed resolution on 02.08.2014 for public sector undertakings to satisfy certain requirements so as to give effect the enhancement of age of superannuation of their employees from 58 to 60 years, after getting due approval of the Government. In pursuance thereof, Public Enterprises Department passed resolution on 02.08.2014 for public sector undertakings to satisfy certain requirements so as to give effect the enhancement of age of superannuation of their employees from 58 to 60 years, after getting due approval of the Government. Meaning thereby, unless the public sector undertakings satisfy the conditions stipulated in the resolution dated 02.08.2014, their employees are not entitled to get enhancement of retirement age from 58 to 60 years. 7. Mr. L. Pangari, learned Sr. Counsel appearing along with Mr. S. Nath, learned counsel for opposite party No. 3 emphatically submitted that OCCL has not adopted the Orissa Service Code to be implemented in the case of its employees. Therefore, the Government resolution dated 28.06.2014 enhancing retirement age of its employees from 58 to 60 years, by amending Rule-71(a) of the Orissa Service Code, ipso facto cannot and could not be applicable to the employees of OCCL. It is further contended that pursuant to resolution passed by Public Enterprises Department on 02.08.2014 stipulating certain conditions to be satisfied by public sector undertakings, OCCL, being one of the public sector undertakings of Government of Orissa, having satisfied the conditions stipulated in the said resolution, its Board of Directors recommended the matter to the Government for according approval to the enhancement of retirement of age of its employees, which was duly approved and consequentially the same was implemented by issuing letter on 19.09.2014. Therefore, the benefit of extension of retirement age would only be applicable prospectively to those employees who were going to superannuate from service after 19.09.2014. Admittedly, as the petitioners were to retire on 31.07.2014, the said circular dated 19.09.2014 cannot apply to them. It is further contended that the ratio decided in Premalata Panda and Digamber Behera (supra) cannot have any application to the present context, in view of the fact that in those cases the respective PSUs have applied Odisha Service Code for their employees but here OCCL has not done so till date, thereby, those cases are distinguishable. 8. This Court heard Mr. A.K. Mohapatra and Mr. S. Senapati, learned counsel appearing for the petitioners in respective writ petitions; Mr. S. Mishra, learned Addl. Government Advocate; and Mr. L. Pangari, learned Sr. Counsel for opposite party No. 3 - Corporation; and perused the record. 8. This Court heard Mr. A.K. Mohapatra and Mr. S. Senapati, learned counsel appearing for the petitioners in respective writ petitions; Mr. S. Mishra, learned Addl. Government Advocate; and Mr. L. Pangari, learned Sr. Counsel for opposite party No. 3 - Corporation; and perused the record. Pleadings having been exchanged, with the consent of learned counsel for the parties, the writ petitions are being disposed of finally at the stage of admission. 9. In the peculiar facts and circumstances of the case, this Court, keeping aside the questions whether the Odisha Service Code is applicable to the employees of OCCL and whether the judgment rendered in Premalata Panda and Digambar Behera mentioned (supra) are applicable to the petitioners or not, deemed it proper to consider whether the petitioners have been discriminated by their employer, namely, OCCL in directing them to superannuate from service, pursuant to letter dated 11.08.2014, by cancelling their extension letter dated 31.07.2014 by which they had been allowed to continue till 31.10.2014. If the similar benefit has been extended to the employees of the OCCL by enhancing the age of superannuation from 58 to 60 years, pursuant to letter dated 19.09.2014, had the petitioners continued pursuant to the extension order dated 31.07.2014 till 31.10.2014, they would have enjoyed such benefit of retirement till attaining the age of superannuation, i.e., 60 years. Needless to mention, by the time the petitioners were directed to handover the charge on 11.08.2014, OCCL was aware of the resolution dated 02.08.2014 issued by the Public Enterprises Department. Therefore, without examining such resolution, which they did subsequently on 28.08.2014 and recommended for extension of retirement of age of its employees from 58 to 60 years, the action of OCCL taken on 11.08.2014 cancelling the office order dated 31.07.2014 and directing the petitioners immediately to handover the charge, is absolutely arbitrary, unreasonable and contrary to the provisions of law, meaning thereby the entire action of OCCL is violative of Article 14 of the Constitution of India. 10. In M. Nagraj v. Union of India, (2006) 8 SCC 212 , the apex Court held that the constitutional principle of equality is inherent in the rule of law. 10. In M. Nagraj v. Union of India, (2006) 8 SCC 212 , the apex Court held that the constitutional principle of equality is inherent in the rule of law. The rule of law is satisfied when the laws are applied or enforced equally, that is, even-handedly, free of bias and without irrational distinction The concept of equality allows differential treatment but it prevents distinctions that are not properly justified. 11. In Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34 , the apex Court held that the doctrine of equality before law is a necessary corollary to the concept of the rule of law of the Constitution. 12. In Gauri Shankar v. Union of India, (1994) 6 SCC 349 , the apex Court held that under our Constitution Article 14 prescribes equality before law. But the fact remains that all persons are not equal by nature, attainment or circumstances and therefore a mechanical equality before law may. result in injustice. The principle of equality of law means not that the same law should apply to everyone, but that a law should deal alike with all in one class; that there shall be equality of treatment under equal circumstances. It means that equals should not be treated unlike and unlikes should not be treated alike. Likes should be treated alike. Similar view has also taken in State of Karnatak v. B. Suvarva Malini, (2001) 1 SCC 728 . 13. In Food Corporation of India v. Bhanu Lodh, (2005) 3 SCC 618 , the apex Court held that the question of discrimination will arise only as between persons who are similarly, if not identically situated. 14. In Faridabad CT Scan Centre v. Director, General of Health Services, (1997) 7 SCC 752 , the apex Court held that the importance of Article 14 is that, its benefit accrues to every person in India, whether he is a citizen or not. We are a country governed by Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before Law and equal protection of the Laws. 15. We are a country governed by Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before Law and equal protection of the Laws. 15. In K.R. Laxman v. Karnatak Electricity Board, (2001) 1 SCC 442 , the apex Court held that when a provision is challenged as violative of Article 14, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it and having ascertained the policy and object of the Act, the Court has to apply dual test namely whether the classification is rational and based upon an intelligible differentia which distinguished persons or things that are grouped together from others and that are left out of the group and whether-the basis of differentiation has any rational nexus or relation with its avowed policy and objects. 16. Considering the above law laid down by the apex Court, as discussed above, and applying the same to the present context, since under our Constitution Article 14 prescribes equality before law, law should be deal alike with all in one class; that there shall be equality of treatment under equal circumstances, which means "that equals should not be treated unlike and unlikes should not be treated alike. Likes should be treated as alike". Meaning thereby, the petitioners, being the employees of OCCL, were to retire from service on attaining the age of 58 years, but they were allowed extension till 31.10.2014. Subsequently, it was resolved on 28.08.2014 by OCCL to extend the age of superannuation of its employees from 58 to 60 years and on being moved the Government approved the same on 17.09.2014. Consequentially, OCCL extended the retirement age of its employees from 58 to 60 years, pursuant to letter dated 19.09.2014. Therefore, the petitioners, being similarly situated persons, have been discriminated and are not treated equally, and as such, the principle that equals should not be treated unlike and unlikes should not be treated alike has been breached in the case in hand. 17. The underlying provisions, as mentioned above, have been duly considered and it is found that there was no rational nexus in passing the office order dated 11.08.2014 cancelling the order dated 31.07.2014 extending the date of retirement of the petitioners till 31.10.2014. 17. The underlying provisions, as mentioned above, have been duly considered and it is found that there was no rational nexus in passing the office order dated 11.08.2014 cancelling the order dated 31.07.2014 extending the date of retirement of the petitioners till 31.10.2014. When the Public Enterprises Department issued resolution dated 02.08.2014 putting certain conditions for PSUs to enhance the retirement age of their employee from 58 to 60 years, and as such, on that basis the Board of Directors of OCCL took decision on 28.08.2014 for extension of retirement age of its employees from 58 to 60 years and recommended to the Government for approval, which was done on 17.09.2014, and thereafter issued circular dated 19.09.2014 extending the age of superannuation of its employees from 58 to 60 years, the benefit should have been extended to the similarly situated employees including the petitioners. 18. Considering the factual and legal aspects, as discussed above, this Court is of the considered view that the order dated 11.08.2014 cancelling extension of retirement age of the petitioners upto 31.10.2014, cannot sustain in the eye of law and the same is hereby quashed. As a consequence thereof, it is deemed that the petitioners were continuing in service till 31.10.2014 and they were employees of OCCL till then Since OCCL extended the age of retirement of its employees from 58 to 60 years, pursuant to circular issued on 19.09.2014, consequent upon the resolution passed on 28.08.2014 which was duly approved by the Government on 17.09.2014, the petitioners, having stood in the same footing, are entitled to continue till they attain the age of 60 years and are also entitled to get the consequential benefits as due and admissible Needless to say that since a few persons have been allowed to superannuate from service in the interregnum period from 31.07.2014 till 19.09.2014, the OCCL and also the State Government shall do well to extend the similar benefit to the petitioners at par with their counterparts, with whom the petitioners are similarly situated, by granting them the benefits allowing to extend the retirement age from 58 to 60 years and consequentially pay the dues as admissible in accordance with law, as expeditiously as possible, preferably within a period of four months from the date of communication of the judgment. 19. Both the writ petitions are thus allowed However, there shall be no order as to cost.