The Odisha Development Authorities (Retirement Benefit of the Employees) Rules, 2015 are declared ultra vires, affirming the right of employees appointed prior to 01.01.2005 to receive pension benefits equivalent to State Government employees.

JUDGMENT :

B.R. SARANGI, ACJ.

The petitioner, who was the employee of Cuttack Development Authority, has filed this writ petition to declare the Odisha Development Authorities (Retirement Benefit of the Employees) Rules, 2015 under Annexure-6 as ultra vires to the provisions contained in the Odisha Development Authorities Act, 1982 as well as Articles 14 and 16 of the Constitution of India; and further to direct the opposite party- authorities to declare that since the petitioner is an employee appointed prior to 01.01.2005, he is entitled to get pension, as has been granted to similarly situated State Government employees.

2. The factual matrix of the case, in brief, is that the erstwhile employees under the Greater Cuttack Improvement Trust were brought forward to Cuttack Development Authority by virtue of Section 128 -2(a) of the Odisha Development Authorities Act, 1982 (for short “Act, 1982”). The Greater Cuttack Improvement Trust, in its resolution no.11/48, dated 08.02.1971 had adopted Odisha Service Code, which in terms regulated the retirement & pensionary benefits of its employees. Cuttack Development Authority subsequently also adopted other Rules of the Government of Odisha relating to service conditions of its employees. Even the employees of Greater Bhubaneswar Regional Improvement Trust were treated as employees of Bhubaneswar Development Authority and became amenable to the Rules framed by the Government for its employees and adopted by the Authority. The petitioner, having joined prior to 01.01.2005, has been subjected to the schemes under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 notwithstanding the fact that the employees, who joined prior to 01.01.2005 under the State Government are getting the benefit under the Odisha Civil Services (Pension) Rules, 1992.

2.1. Under a mistake of fact or misconception, the Cuttack Development Authority was covered under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 from the year 1982. But the Authority, vide letter no.16498 dated 27.07.2001 and letter no.25137 dated 27.11.2001, approached the Regional Provident Fund Commissioner for exemption under Section 17 of the E.P.F. and M.P. Act, 1952 with an undertaking to constitute separate funds for pension and provident fund for its employees. The Regional Provident Fund Commissioner, Odisha, vide letter dated 30.01.2002, intimated opposite party no.3 for production of certain documents for grant of exemption under of the E.P.F. & M.P. Act, 1952. Opposite party no.3, by letter no. 15898 dated 19.06.2010, requested the Under Secretary to the Government in Housing and Urban Development Department, Odisha for approval of the draft Rules of the year, 1991 in terms of Section 83 of the Odisha Development Authorities Act, 1982. The E.P.F. and M.P. Act, 1952 is not applicable to the employees of the Cuttack Development Authority in view of the Section 16 (c) of E.P.F. and M.P. Act, 1952.

2.2. Consequentially, a meeting was convened on 23.08.2010 under the Chairmanship of the Chief Secretary to the Government of Odisha, wherein Principal Secretaries to Government, Housing & Urban Development Department, Finance Department as well as Law Department were present. It was decided in the said meeting to initiate steps for formulation of the Rules regarding pensionary benefit of the employees of the Development Authorities consti