AKSHAYA KUMAR PATTNAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Writ petition has been filed by the petitioner with a prayer to direct the opposite parties to grant the pensionary benefits in his favour by taking his total length of service into account and release the consequential benefits including arrear dues, if any, as admissible under law within a stipulated period and further to quash the letter dtd. 02.12.2002 under Annexure-4 issued by the Manager (HRD), Grid Corporation of Orissa Ltd. rejecting the case of the petitioner for grant of pension. The brief facts of the case are that the petitioner was initially appointed as a Khalasi on 17.12.1995 in Talcher Thermal Power Station and was placed under the control of the Executive Engineer, EPI Division No. III. Subsequently he was promoted to the post of Work Sarkar w.e.f. 08.02.1978. While continuing as such, State Government promulgated the Orissa Electricity Reform (Transfer of Undertakings, Assets,. Liabilities, Proceedings and Personnel) Schemes Rules 1996 (hereinafter referred to as '1996 Rules') w.e.f. 01.4.1996 and in consequence of such enactment of 1996 Rules, Talcher Thermal Power Station was taken over by the newly formed GRIDCO and the services of the petitioner stood permanently absorbed in GRIDCO w.e.f. 01.4.1997 and he was posted in Talcher Electrical Division, Chainpal. Thereafter the State Government after consultation with GRIDCO made the Transfer Scheme Rules under the Orissa Electricity Reform (Transfer of Assets, Liabilities, Proceedings and Personnel of GRIDCO to Distribution Companies) Rules, 1998 (hereinafter referred to as '1998 Rules') for the purpose of providing and giving effect to the preparation and implementation of the Scheme for the transfer of the Distribution Undertakings of the GRIDCO to the Distribution Companies namely CESCO, WESCO, NESCO and SOUTHCO. According to Rule 3 of 1998 Rules the personnel shall continue to remain with and belong to GRIDCO and Rule 4 of the said Rules protected the service condition of all such employees. Accordingly, the petitioner continued to work for CESCO with protection of his service conditions and retired from service w.e.f. 29.2.2000 on attaining the age of superannuation. After his retirement, the petitioner had made several representations before the opposite parties for grant of his retiral dues as well as pensionary benefits including family pension. The Manager (HRD), Grid Corporation of Orissa Ltd. vide letter dtd. 02.12.2002 rejected the claim of the petitioner for grant of pension but granted gratuity by taking his entire length of service into consideration. While matter stood thus, a similarly situated employee that of the petitioner was granted pension as well as other consequential benefits. Accordingly, the petitioner claimed parity and drawn attention of the competent authority by filing a representation. In response to the said representation, the opposite parties vide letter dtd. 06.04.2011 recommended the case of the petitioner to the Chief HRD Officer of CESU at Bhubaneswar for necessary consideration. As the representation of the petitioner for grant of retrial benefits, pension and family pension has not attained finality, the petitioner has approached this Court by filing the present Writ Petition.

(2.) A counter affidavit has been filed by opposite party Nos. 3 and 4 stating therein that the Writ Petition is barred by law of limitation and the pensionary benefit being a property attracts the provisions of limitation act. It is further stated that the petitioner has been satisfied with the relief granted to him following his superannuation and at this belated stage he is estopped to raise the dispute. It is stated that as the petitioner has not served under the establishment of opposite party Nos. 3 and 4 for a minimum period as required for grant of pensionary benefit, this Writ Petition is not maintainable. It is further stated that the employees, who were transferred along with their establishment from the Government are not eligible to avail the pension and DCRG but are only entitled to gratuity under the provisions of Gratuity Act as adopted by the then Electricity Board. In so far as the claim of the petitioner that pension has been granted in favour of a similarly situated person to that of the petitioner, it is stated in the counter affidavit that law is well settled that each case has to be considered on its own merit and negative discrimination cannot be claimed as a matter of right.

(3.) Opposite party No. 5 has also filed a counter affidavit stating therein that under the provisions of Orissa Electricity Reforms Act, 1995 and the transfer scheme framed thereunder though the petitioner was permanently absorbed in GRIDCO w.e.f. 01.4.1997, after creation of CESU he was absorbed in the said Company w.e.f. 26.11.1998 and the petitioner retired from service on 29.2.2000 while working as a Work Sarkar under CESU, Talcher Electrical Division, Chainpal. Therefore, the CESU is the competent authority to consider the case of the petitioner being his employer.