BIRESH CHANDRA GIRI Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Writ Petition has been filed seeking direction to the opposite party no.2-the Odisha State Police Housing and Welfare Corporation Limited to extend the petitioner the benefit extended under the provision of Section 71(a) of the Orissa Service Code as amended on 25.07.2014 taking into account the notification dated 2.08.2014 and the resolution of the Board dated 22.09.2014 vide Annexure-5 and thereby setting aside the restrictions in the impugned orders vide Annexures-5B and 5C.

(2.) Short background involved in this case is that the Odisha State Police Housing and Welfare Corporation Ltd. hereinafter in short be called as 'the Corporation' a public sector undertaking of Government of Odisha is constituted with a purpose to build Police building, keeping in view the enhancement of the Police efficiency and also to see improvement in the Police community. The Corporation is also undertaking construction of buildings of other Organizations of the State, its undertaking in the State of Odisha and also the buildings of the Judicial Department. Initially the Corporation was being manned by persons under deputation from Government and other Corporation. But after sometime certain posts created for the Corporation by the Board of Directors was being approved by the Government in its Home Department and as such it is since approval of posts by the Government continuing almost with all its permanent employees. Petitioner had successfully cleared a recruitment process for the post of probationary Accountant and as a consequence he was posted as probationary Accountant on 10.07.1982 in the scale of pay of RS.320-550 with usual allowances. On completion of probation period successfully service of the petitioner was confirmed by the Office order vide office order No.135/OPHWC dated 11.2.1983. While the petitioner was continuing in such post he was communicated about his superannuation on his attaining the age of 58 years w.e.f. 30.09.2015 (Annexure-1). Petitioner challenging his superannuation contended that the Government of Odisha by its resolution dated 28.06.2014 took a general decision in terms of Central Government resolution by modifying the age of superannuation of the employees under the State from 58 years to 60 years. It is further claimed that pursuant to such resolution necessary modification was made by amending the provision at Section 71(a) of the Orissa Service Code as well as the Orissa Service Code Pension Rules, 1992 which was published in the Gazette on 25.07.2014 by the order vide Annexure-2. In the above circumstance, the Government of Odisha allowed the enhancement of age of retirement of the employees under Public Sector Undertakings of the State from 58 years to 60 years being published in Extra Ordinary Odisha Gazette on 18.08.2014 (Annexure-3). It is on such notification the petitioner claimed that large number of PSUs have increased the age of superannuation of its employees with approval of the Government of Odisha within short time thereafter and such employees have all been benefited with the continuance in service till 60 years of age. The petitioner alleged that in spite of such development involving several Public Sector Corporations there was no enhancement of the age of retirement in the Odisha State Police Housing and Welfare Corporation Ltd. However in its 122nd meeting held on 22.09.2014 the Board of Directors of the Corporation considered the case of enhancement of age of retirement of its employees from 58 years to 60 years in the line with Government in Public Enterprises Department Resolution No.1775/PE dated 2.08.2014. This resolution was submitted to the Government with a request to concur the proposal on 24.11.2014. However the proposal of the Corporation received the approval of the Government almost one year after i.e. on 23.11.2015 allowing enhancement of the age of retirement from 58 years to 60 years. On receipt of approval of the Government of Odisha the Odisha State Police Housing and Welfare Corporation Ltd. issued an Office order bearing No.11442/OPHWC dated 30.11.2015 enhancing the age of retirement on superannuation of the employees of its Corporation from 58 years to 60 years but however, it would be coming into force from 23.11.2015 only. The approval as well as the communication of the Corporation are available at Annexures-5B and 5C.

(3.) Shri Nanda, learned counsel for the petitioner drawing the attention of this Court to the above development and taking this Court to the resolution of the Board of Directors dated 22.09.2014 having support of the Government in the Public Enterprise Department resolution dated 2.08.2014 contended that once the resolution got approval of the Government, the resolution adopted by the Corporation on a subsequent date becomes immaterial. Shri Nanda, learned counsel for the petitioner contended that once the Government has adopted a resolution to its employees, it has a direct application to the employees of the Corporation may be with the concurrence of the State Government and once it got the concurrence/ approval of the Government, the approvals would have been relegated back to the original date of implication of such benefit in respect of the Government Employees since 28.06.2014 or in the worse from the date of its publication in the Extra Ordinary Gazette dated 18.08.2014. Shri Nanda, learned counsel for the petitioner further referring to the resolution of the Board, the Resolution of the Government contended that the approval of the Government in such matters becomes a routine and under no circumstance such benefit involving the Corporation could have been postponed as has been done in the case at hand. Shri Nanda, learned counsel for the petitioner further for postponing the date of benefit involving the employees of the Corporation to 23.11.2015 and for the application of same benefit to other Corporation since August, 2014 submitted that the same not only amounts to discriminating similar set of employees under different establishments but also creating a class amongst similar employees under different employments. Shri Nanda, learned counsel for the petitioner further taking this Court to the decision in the case of Premalata Panda Versus State of Odisha and another as reported in 2015(II) OLR 214 sought for extension of the benefit as granted therein to the case of the petitioner and thus requested for granting the relief as has been sought for by the petitioner. Shri Nanda also drawing the attention of this Court to the decision in the case of S. Krishna Sradha Versus State of Andhra Pradesh and Ors. as reported in 2017 STPL 3175 SC submitted that this decision has also application to the case of the petitioner. Shri Nanda, learned counsel for the petitioner at this stage taking this Court to the interim protection granted by this Court involving the Writ Petition at hand through the order dated 19.12.2016 and drawing the attention of this Court to the illegal retirement of the petitioner at the age of 58 years contended that for the protection granted to the petitioner through the interim order the petitioner should be deemed to be continuing in service till 60 years and also entitled to all consequential benefits.