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2020 Supreme(Ori) 22
IN THE HIGH COURT OF ORISSA, CUTTACK
Biswanath Rath, J.
Biresh Chandra Giri - Appellant
Versus
State Of Orissa - Respondent
Writ Petition (Civil) No. 17444 of 2015
Decided On : 28-01-2020
P.K. Nanda, Advocate, S. Panigrahi, Advocate, D. Mund, Advocate, G.P. Dutta, Advocate
Cases Referred
Premalata Panda Versus State of Odisha & another, (2015) 2 OrissaLR 214
The main legal point established in the judgment is the impact of delayed government approval on the extension of retirement age for employees of a corporation, leading to discriminatory treatment and the application of the doctrine of nunc pro tunc to prevent the petitioner from suffering due to the delay.
Headnote:
Section 71(a) - Extension of Age of Retirement - Orissa Service Code - [71(a)] - The court discussed the application of Section 71(a) of the Orissa Service Code and the resolution of the Board of Directors and the Government regarding the enhancement of the age of retirement from 58 to 60 years for employees of the Odisha State Police Housing and Welfare Corporation Ltd. The court highlighted the delayed approval of the resolution by the Government and its impact on the petitioner's superannuation, leading to a discriminatory attitude in the adoption of age of superannuation for similarly situated persons in different corporations in the same state administration.
Fact of the Case:
The petitioner sought extension of the benefit of enhanced retirement age from 58 to 60 years, as granted to government employees, to employees of the Odisha State Police Housing and Welfare Corporation Ltd. The petitioner's superannuation at the age of 58 was challenged based on the delayed approval of the resolution by the Government.
Finding of the Court:
The court found that the delayed approval of the resolution by the Government resulted in a discriminatory attitude and observed that the petitioner would not have been superannuated at 58 if the resolution had been approved promptly. The court held that the petitioner should be deemed to be continuing in service till 60 years and entitled to all consequential benefits.
Issues: The issues involved the extension of the benefit of enhanced retirement age to employees of the Corporation, the delayed approval of the resolution by the Government, and the discriminatory impact on the petitioner's superannuation.
Ratio Decidendi: The court held that the delayed approval of the resolution by the Government led to a discriminatory attitude in the adoption of age of superannuation for similarly situated persons in different corporations in the same state administration. The court also applied the doctrine of nunc pro tunc to ensure that the petitioner did not suffer due to the delayed approval.
Final Decision: The court set aside the communication of the Government and the Corporation regarding the petitioner's superannuation, directed the application of the resolution of the Board from the date it was passed, and deemed the petitioner to be continuing in service till attaining the age of 60 years. The court ordered the calculation and release of arrear salary and pension in favor of the petitioner with interest.
JUDGMENT
Biswanath Rath, J. - 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 & 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 Odis
