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2020 DIGILAW 103 (ORI)

Rajendra Narayan Patra v. State Of Odisha

2020-05-12

P.PATNAIK

body2020
JUDGMENT P.Patnaik, J. - In the accompanied writ petition, the petitioner challenges the legality and propriety of the retirement notice on attaining the age of 58 years w.e.f. 31.05.2017 being contrary to the resolution of the Finance Department dated 28.06.2014 and also incongruous and inconsistent with the order passed by the Odisha State Agricultural Marketing Board (hereinafter to be called as "the Board"). 2. The facts as averred in the writ petition in a nutshell is that the petitioner was initially appointed as Junior Clerk on 04.05.1988 and subsequently promoted to the rank of Senior Clerk on 14.03.1995. After undergoing the process of selection, he was appointed as Deputy Marketing Officer and joined in the said post on 20.02.2004. While continuing as such, he was allowed to retire from services on 31.05.2017 by notice dated 31.05.2017 issued by the Member Secretary of the Board wherein it was stated that the petitioner has attained the age of superannuation of 58 years of age as on 31.05.2017. It is stated in the writ petition the date of birth of the petitioner as per High School Certificate Examination issued by the Board of Secondary Education was 15.05.1959. Therefore, the petitioner was made to retire at the age of 58 years which was not the age of superannuation for the employees of the Board. The State Government in Finance Department issued a resolution dated 28.06.2014 by which the Government have decided to enhance the retirement age of the State Government employees on superannuation from 58 years to 60 years. The Government of Orissa in Public Enterprises Department vide Resolution dated 02.08.2014 allowed the enhancement of age of retirement on superannuation in respect of the employees of State Public Sector Undertakings from 58 to 60 years. The petitioner further stated in the writ petition that the Board enhanced the age of retirement of superior officers of the Regulated Market Committee from 58 to 60 years which is established under Section 3 and 5 of the Act, 1956. Thereafter the Board communicated letter dated 16.03.2015 to all the Regulated Market Committees indicating therein that the Regulated Market Committee employees who have been ordered to retire on attaining the age of 58 years on or after 28.06.2014 are allowed to continue in service keeping in view the Resolution of the Finance Department. Thereafter the Board communicated letter dated 16.03.2015 to all the Regulated Market Committees indicating therein that the Regulated Market Committee employees who have been ordered to retire on attaining the age of 58 years on or after 28.06.2014 are allowed to continue in service keeping in view the Resolution of the Finance Department. The petitioner made a representation on 07.06.2017 vide Annexure-9 before the Member Secretary of the Board indicating therein that in view of the Government Resolution as per Annexure-3 & 4 to the writ petition and in view of the fact that one of the similarly situated incumbent like the petitioner namely, Shri G.P. Patra who was allowed to continue in service up to 60 years of age, he may be allowed to continue in service till he attains 60 years of age and the retirement notice be recalled, but the said representation appears to have fallen on deaf ears. Being aggrieved by the retirement notice under Annexure-1, the petitioner has filed the instant writ petition with a prayer to quash the retirement notice and for allowing him to continue in service from 01.06.2017 to 31.05.2019 with all consequential benefits. 3. Learned counsel for the petitioner submitted with vehemence that the petitioner was made to retire at the age of 58 years on superannuation on 31.05.2017 in view of retirement notice issued by the Board on 31.05.2017 vide Annexure-1 to the writ petition. He further submitted that the petitioner was not allowed to continue in service till the age of 60 years though similarly situated employees like the petitioner was allowed to continue in services up to 60 years and the Odisha State Agricultural Marketing Board has enhanced the age of retirement of the employees of the Regulated Market Committee from 58 to 60 years. Learned counsel further submitted that on 31.10.2017, the Board had resolved to enhance the age of retirement of its employees from 58 to 60 years which was after three years and four months of passing of the resolution by the State Government under Annexures-3 & 4 only to harass the petitioner. Learned counsel for the petitioner during course of hearing cited the decision ( State of Uttar Pradeshvrs.-Dayanand Chakrawarty and Others, (2013) 7 SCC 595 wherein the Hon'ble Apex Court in paragraph 49.1 and 49.2 held as follows:- 49.1. Learned counsel for the petitioner during course of hearing cited the decision ( State of Uttar Pradeshvrs.-Dayanand Chakrawarty and Others, (2013) 7 SCC 595 wherein the Hon'ble Apex Court in paragraph 49.1 and 49.2 held as follows:- 49.1. The employees including respondents who moved before a court of law irrespective of fact whether interim order was passed in their favour or not, shall be entitled for full salary up to the age of 60 years. The arrears of salary shall be paid to them after adjusting the amount if any paid. 49.2. The employees, who never moved before any court of law and had to retire on attaining the age of superannuation, they shall not be entitled for arrears of salary. However, in view of Regulation 31 they will deem to have continued in service up to the age of 60 years. In their case, the appellants shall treat the age of superannuation at 60 years, fix the pay accordingly and re-fix the retirement benefits like pension, gratuity, etc. On such calculation, they shall be entitled for arrears of retirement benefits after adjusting the amount already paid." 4. Mr. B.S. Tripathy, learned counsel for the opposite party nos.2 to 4 by referring to Annexure-4 to the writ application i.e. the Resolution dated 02.08.2014 of Government of Orissa in Public Enterprises Department submits that as per the said Resolution, the proposal approved by the Board shall be concurred by the Administrative Department. The Administrative Department shall obtain appropriate Government approval before giving effect to the enhanced proposal. Learned counsel for the opposite party nos.2 to 4 further submitted that the case of Shri G.P. Patra as has been referred by the petitioner is a stray incident. Therefore the petitioner cannot seek benefit of a singular case. Learned counsel for the opposite party nos.2 to 4 further submitted that the petitioner has approached this Court after attaining the age of 58 years. Therefore, the petitioner will not be entitled to arrear salary during the period of 58 to 60 years. 5. Before adverting the rivalised submissions, it would apposite to refer the decision rendered by Hon'ble Apex Court in Chairman, Uttar Pradesh Jal Nigam & Another vrs. Radhey Shyam Gautam ad Another, (2007) 11 SCC 507 wherein following the decision of Harwindra Kumar vrs. 5. Before adverting the rivalised submissions, it would apposite to refer the decision rendered by Hon'ble Apex Court in Chairman, Uttar Pradesh Jal Nigam & Another vrs. Radhey Shyam Gautam ad Another, (2007) 11 SCC 507 wherein following the decision of Harwindra Kumar vrs. Chief Engineer, Karmik & Ors, (2006) AIR SC 365 , the Apex Court held that the employees of the Nigam shall be entitled to full salary for the remaining period up to the age of 60 years. In W.P.(C) No. 9279 of 2015, Premalata Panda vrs. State of Odisha, this Court held at paragraph-16 which is quoted hereunder: "16. Keeping in view the law laid down by the apex Court in Dayanand Chakrawarty (supra), this Court is of the opinion that the following consequential and pecuniary benefits should be allowed to different sets of CDA employees including the petitioner who were ordered to retire at the age of 58 years and this Court so directs. (a) The employees, who moved the Court of law irrespective of the fact whether interim order was passed in their favour or not, shall be entitled to full salary up to the age of 60 years and arrear salary shall be paid to them after adjusting the amount, if any, paid. (b) The employees, who never moved before any Court of law and had retired on attaining the age of superannuation, shall not be entitled for arrears of salary. However, they will be deemed to be continuing in service up to the age of 60 years. In their case, the CDA shall treat their age of superannuation as 60 years, fix the pay accordingly and re-fix the retirement benefits like pension, gratuity etc. On such calculation, they shall be entitled to arrears of retirement benefits after adjusting the amount already paid. ************." 6. In W.P.(C) No. 8401 of 2016 and batch of cases (Digambar Behera vrs. In their case, the CDA shall treat their age of superannuation as 60 years, fix the pay accordingly and re-fix the retirement benefits like pension, gratuity etc. On such calculation, they shall be entitled to arrears of retirement benefits after adjusting the amount already paid. ************." 6. In W.P.(C) No. 8401 of 2016 and batch of cases (Digambar Behera vrs. State of Odisha & Others,2017 2 ILR 876-CUT-), a Co-ordinate Bench of this Court by referring to the decision rendered in Premalata (supra) and various judgments of the Hon'ble Apex Court has been pleased to answer the Question No.3 at paragraph-18 in the following manner":- "a) The petitioners, who had approached this Court before completion of 58 years of age and during pendency of the writ petition were made to retire on attaining the age of 58 years, as well as who had approached this Court after retirement on attaining 58 years of age, the opposite party no.3-OREDA is directed to bring them back into service forthwith, if they have not attained the age of 60 years, and allow them to continue till they attain the age of 60 years and grant all the consequential service and financial benefits as due and admissible to them in accordance with law. (b) The petitioners, who had approached this Court after retirement on attaining the age of superannuation and in the meantime have attained the age of 60 years, shall not be entitled for arrears of salary. However, they will be deemed to be continuing in service up to the age of 60 years. In their case, the OREDA shall treat their age of superannuation as 60 years, fix the pay accordingly and re-fix the retirement benefits like pension, gratuity etc. On such calculation, they shall be entitled to arrears of retirement benefits after adjusting the amount already paid. (c) Needless to say that the arrears of salary and arrears of retirement benefits should be paid to such employees within a period of six months from the date of receipt of copy of the judgment." 7. In the instant case, the petitioner received the notice of retirement on 31.05.2017, the date of superannuation. Therefore, there was no occasion on the part of the petitioner to approach this Court prior to receipt of the said notice. In the instant case, the petitioner received the notice of retirement on 31.05.2017, the date of superannuation. Therefore, there was no occasion on the part of the petitioner to approach this Court prior to receipt of the said notice. But the petitioner has admittedly approached this Court after attaining the age of 58 years and before completion of 60 years. Though the sub-paragraph-b of paragraph-18 of Digambar Behera (supra) does not enure to the benefit of the petitioner, but in view of the peculiar circumstances that the retirement notice was neither issued nor received prior to the date of retirement of the petitioner, the petitioner's case stands on different footing so far as the arrear salary is concerned. It would be relevant to refer the decision rendered by Hon'ble Apex Court in P.G.I. of Medical Education and Research vrs. Raj Kumar, (2001) 2 SCC 54 , wherein the Hon'ble Apex Court held at paragraph-12 as follows:- "12. Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straightjacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety. ************." In Hindustan Tin Works (P) Ltd., (1979) 2 SCC 80 , the Hon'ble Apex Court has been pleased to hold the similar view regarding the payment of back wages. 8. So far as grant of arrear salary is concerned on the maxim of 'No work no pay' and there is no straight jacket formula for grant of arrear salary but depending on facts and circumstances of the case in view of the reasons stated in the foregoing paragraphs, this Court is of the considered view that the petitioner is entitled to 50% of the arrear salary from the date of attainment of 58 years till 60 years after adjusting the amount already paid. 9. 9. After hearing the learned counsel for the respective parties and after bestowing thoughtful consideration to the rivalised submissions advanced by the learned counsel for the parties and keeping in view the decision cited supra and resolution dated 02.08.2014 of Government of Odisha, this Court is of the considered view that the petitioner is entitled to continue in service till attaining the age of 60 years and 50% of the arrear salary during period of 58 to 60 years shall be paid to the petitioner within a period of four months from the date of receipt of the copy of the order and on such calculation, the petitioner shall be entitled to arrears of retirement benefits after adjusting the amount already paid. 10. With the aforesaid observation and direction, the writ petition stands allowed. No cost.