Syama Pradhan vs State of Orissa and Others

G.K. Misra, C.J.—The Petitioner joined as a Warder in the judicial lock-up at Ranpur on 24-12-1950. He continued to work as such till 21-2-1970. On that date he was relieved of that post and was directed to join as a Jail Warder in the office of the Superintendent of Circle Jail, Berhampur. The order by which he was directed to so join is Annexure-1. He reported for duty before the Superintendent, Circle Jail, Berhampur (opposite party No. 3) on that very date. Opposite party No. 3 did not allow him to join saying that Jail Warders belong to Class III Ministerial Service and that as the Petitioner had already passed his 55th year he cannot be permitted to join as a Jail Warder. The Petitioner has filed this writ application to quash the impugned Order (Annexure-1) and for issue of an adequate writ declaring him to be in service with Effect from 21-2-1970 onwards and for further service benefits.

Certain important dates may be noted to clearly bring out the relief to which the Petitioner would be entitled. His date of birth is 10-9-1914. By 21-2-1970 he was) 5 years and odd. A Jail Warder belongs to Class III Service while a Warder belongs to Class IV Service, as specified in Schedule B of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. Before 21-2-1970 the Petitioner was throughout a Warder. He, therefore, belonged to Class IV Service and was entitled to continue in service till his 60th year. If the writ application had been filed without delay, there would have been no difficulty for us to grant the relief that the Petitioner shall be deemed to be continuing in service till his age of superannuation at the 60th Year. The writ application was, however, filed on 1-2-1974. Even if the Petitioner was to continue till the 60th year he would have retired on 10.9.1974. We cannot accordingly grant the relief that the Petitioner shall be deemed to be still continuing in service.

The question for consideration is what relief can be granted to the Petitioner. If the Petitioner had filed a suit today he would have been entitled to arrears of pay from 23-6-1972 till 10-9.1974. Ordinarily the Petitioner would have been asked to file a civil suit for recovery of arrears; but in view of the fact that the writ application was filed prior to the retirement of the Petitioner we are of opinion that it would be unnecessary to ask him to file a civil suit. We accordingly grant the relief that the Petitioner is entitled to arrears of pay from 23-6-1972 to 10-9.1974. The Order (Annexure-1) transferring him to Berhampur Jail as a Class III servant was clearly contrary to law and is hereby quashed. It need hardly be stated that the Petitioner is entitled to further pensionary benefits on the basis of the aforesaid relief.

On our aforesaid analysis, the Petitioner was not working from 21-2-1970 till 23-6-1972 for no fault of his. This period must obviously be treated as extraordinary leave and the Petitioner will not be entitled to any arrears of pay during this period.

The writ application is accordingly allowed in part. A writ of mandamus be issued directing the opposite parties to pay arrears of pay to the Petitioner from 23-6-1972 to 10-9-1974 and further service benefits by way of payment of gratuity and pension. In the circumstances, there will be no order as to costs.

P.K. Mohanti, J.

I agree.