Confining Benefit Of Enhancement Of Age Of Superannuation To One Set Of Employees & Denying It To Another Is Discriminatory: Orissa High Court

The Orissa High Court has upheld the decision of Single Judge Bench which had issued a mandamus to the Housing and Urban Development Department ("HOUDD"), Government of Odisha as well as to the Orissa Water Supply and Sewerage Board ("OWSSB") to increase the age of superannuation of its four employees who had approached the Court.The four employees were denied the benefit by the Board because they reached the erstwhile age of superannuation of 58 years prior to the date of the Notification.Granting relief to them, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik held, "…to confine the benefit of enhancement of the age of superannuation to one set of employees and deny it to another was plainly discriminatory and this is what was held by the learned Single Judge." Brief Facts: The four writ appeals are directed against the order passed by the learned Single Judge allowing the writ petitions filed by the four employees. In each of the said writ petitions, the prayer was for a direction to the HOUDD, to enhance the age of superannuation from 58 to 60 years. The Single Judge had held that there was no justification in the State Government not acting on the recommendation of the Appellant and in discriminating against the writ petitioners who stood on the same footing as other employees of the Board, in whose case the age of retirement was enhanced from 58 to 60 years. Accordingly, the Single Judge issued a mandamus to the HOUDD as well as the present Appellant to extend to the writ petitioners the benefit of enhanced retirement age, re-fix their pay and other allowances and pay the corresponding amount to each of them within a period of four months from the date of the judgment along with simple interest at 7% per annum. The order was challenged in these writ appeals. Contentions: The Appellant submitted that although regulations have been made by the OWSSB under the Orissa Water Supply and Sewerage Board Act, 1991, there was no specific Regulation as regards the age of retirement. The admitted position is that the Rules concerning the service conditions as applicable to the employees of the State Government would ipso facto apply to employees of the OWSSB. It also pointed out that it is only on 31st May, 2021 that a Notification was issued by the HOUDD permitting the increase in the age of superannuation of the employees of the OWSSB from 58 to 60 years. The Notification reads that it "will take immediate effect". Therefore, it was contended that the Notification is 'prospective' in operation and since the four employees before the Court (Respondent No. 1 in each of the writ appeals) reached the age of superannuation of 58 years prior to the date of the Notification, their prayer cannot be granted. It placed reliance on the judgment of the Apex Court in Noida v. B.D. Singhal, 2021 SCC Online SC 466, where it was held that in matters of policy the Court will not dictate to the State what should be the age of superannuation or the date from which such decision will become effective. It also sought support from the judgments in Sarat Chandra Tripathy v. OFDC, 2015 SCC Online 141; IPICOL v. Bimbadhar Panda (decision dated 14th July, 2021, in Writ Appeal No. 696 of 2020). However, it did not dispute that in respect of the employees of the OWSSB belonging to Group 'D' the benefit of the enhanced age of superannuation was extended by the Board from July 2020, even when without waiting for the sanction of the State Government. It was also admitted that barring these four employees in Group 'C', all other serving employees of the OWSSB in Group 'C' have got the benefit of enhancement of retirement age from 58 to 60 years. Decision of the Court: The Court distinguished the cases cited by the Appellant from the present set of facts and observed, "…as far as the present cases are concerned, there was no refusal of the proposal of the Appellant by the State Government. There was only a delay in conveying concurrence. Secondly, there was no specific Regulation governing the age of superannuation of OWSSB employees. Therefore, unlike the Noida case (supra), the approval of the State Government did not have to be followed by an amendment to the Regulations. On the other hand, even without waiting for the approval of the State Government OWSSB granted the benefit of the enhancement of the age of superannuation to its Group D employees from July 2020 itself." Resultantly, it concluded that not extending the benefit of enhancement of the age of superannuation to the respondents and providing it to other employees is clearly discriminatory. It accordingly dismissed the appeals, finding no error in the judgment of the Single Judge. Case Title: Orissa Water Supply and Sewerage Board v. Praful Kumar Sethi & Ors. and other connected matters.Citation: 2022 LiveLaw (Ori) 10 Case No.: W.A....

Confining Benefit Of Enhancement Of Age Of Superannuation To One Set Of Employees & Denying It To Another Is Discriminatory: Orissa High Court

Jyoti Prakash Dutta

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