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Ananda Chandra Mallik Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 360 of 1981
Judge
Reported in1984(II)OLR849
ActsOrissa Service Code - Rule 54
AppellantAnanda Chandra Mallik
RespondentState of Orissa and ors.
Appellant AdvocateG.A.R. Dora, Adv.
Respondent AdvocateAddl. Government Adv.
DispositionPetition allowed
Cases ReferredDhruba Charan Nanda v. Additional Director of Health Services
Excerpt:
.....getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - so he cannot be transferred to cuttack-ix circle, and the order of transfer is bad. ' the above sub-paragraphs clearly show that non-gazetted employees like the petitioner should not be ordinarily transferred beyond the cadre area except on their request or on promotion. 5. after considering the arguments of both sides and the facts and circumstances of the case we hold that annexure-3, the order of transfer dated 15. 11. 1977, is bad and the same is quashed......under the inspector of schools, cuttack-ii circle which is outside the parent circle, i. e., cuttack circle-i, petitioner protested afainst such transfer and on a representation the order was cancelled. in the mean while petitioner was again transferred from athgarh to the office of the district inspector of schools, cuttack as headclerk in the year 1975. on 17. 6. 1977 petitioner was again transferred as junior statistical assistant to the office of the district inspector of schools, jajpur under the inspector of schools, cuttack-ii circle. again he was transferred to the office of the district inspector of schools, dolipur under the inspector of schools, cuttack-ii circle as per the order of the additional director of public instruction (schools), orissa dated 15. 7. 1977. on the.....
Judgment:

J.K. Mohanty, J.

1. Petitioner was working as Senior Clerk in the office of the 'District Social Educational Organiser' being appointed in the year 1969 and was adjusted in the office of the District Inspector of Schools, Cuttack-I Circle on 16. 10.1969. For administrative convenience, the Educational Circles in the State were reorganised into a number of circles by order dated 15.12. 1970 by the Government of Orissa and each Circle was having its own cadre vide Annexure-2. After the said reorganisation the petitioner was placed under the Inspector of Schools, Cuttack-I Circle as a Senior Clerk. He was promoted to the post of Head Clerk-cum-Accountant by the order of the Inspector of Schools, Cuttack-I Circle and was posted in the office of the District Inspector of Schools, Athgarh under the same circle on 6. 9. 1971. While he was so working, all on a sudden he was transferred to the office of the District Inspector of Schools, Jaipur under the Inspector of Schools, Cuttack-II Circle which is outside the parent circle, i. e., Cuttack Circle-I, Petitioner protested afainst such transfer and on a representation the order was cancelled. In the mean while petitioner was again transferred from Athgarh to the office of the District Inspector of Schools, Cuttack as Headclerk in the year 1975. On 17. 6. 1977 petitioner was again transferred as Junior Statistical Assistant to the office of the District Inspector of Schools, Jajpur under the Inspector of Schools, Cuttack-II Circle. Again he was transferred to the office of the District Inspector of Schools, Dolipur under the Inspector of Schools, Cuttack-II Circle as per the order of the Additional Director of Public Instruction (Schools), Orissa dated 15. 7. 1977. On the protest of the petitioner, the raid transfer was kept in abeyance. But all on a sudden, by order dated 15.11. 1977 issued by the Additional Director of Public Instruction (Schools), Orissa, the petitioner's services were placed at the disposal of the District Inspector of Schools, Dolipur, which according to the petitioner is outside the cadre and circle, i. e., Cuttack Circle-I, vide Annexure-3. He was placed under suspension by order dated 22. 2. 1978 vide Annexure-5. A disciplinary proceeding was started against the petitioner and after the conclusion of the said proceeding the petitioner's two annual increments were withheld by order dated 30. 8. 1979 vide Annexuire-6. On 19. 11. 1979 the petitioner was again posted at Dolipur under Cuttack-II Circle vide Annexure-10. He submitted a representation to the Governor on 3. 3.1980. vide Annexure-4 with copies to the Director of Public Instruction (Schools) and the Secretary to Government, Education Department. On 25. 10 1980 the representation was rejected without assigning any reason vide Annexure-8. Therefore, the petitioner has filed this writ petition on 25. 2. 1981 to quash Annexures-3, 6, 8 and, 10.

2. Opposite parties, the State of Orissa represented by the Secretary, Education Department, Director of Public Instruction (Schools), Inspector of Schools, Cuttack-I Circle and District Inspector of Schools, Cuttack-I Circle have filed their counter and have said that the prayer for quashing the order of transfer passed on 15. 9. 1977 vide Annexure-3 should be rejected on the ground of delay and laches. Regarding the punishment imposed in the disciplinary proceeding, the opposite parties have stated that the punishment is a minor one and there has been no irregularity in conducting the proceeding against the petitioner nor is there any justifiable ground for interfering with the order of punishment. Regarding Annexure-8, the opposite parties contended that it is an order of the Government on the appeal preferred by the petitioner against the order of punishment and no ground has been indicated as to why the said order should be quashed. Regarding the legality of the order of transfer, the opposite parties contended that the post of Head Clerk in the office of the District Inspector of Schools is transferable and at any rate the transfer order being of the year 1977 is not open to challenge in the year 1981. The petitioner in his rejoinder has submitted that he was placed under suspension on 22. 2. 1978 for not carrying put the order of transfer and was reinstated on 19.11.1979 but was asked to join in a separate cadre which he challenged. The stoppage of two increments being the result of alleged disobedience of the illegal order of transfer, the same is untenable. There is no delay in filing the petition and the petitioner is not guilty of laches.

3. The main contention of the petitioner is that after the reorganisation of the School Inspectorates in So number of circles from 15.12,1970 vide Annexure-2, each Circle was having its own cadre. He belonged to Cuttack Circle-I which was having its own cadre. So he cannot be transferred to Cuttack-IX Circle, and the order of transfer is bad. According to the petitioner, each circle was maintaining a seniority list of Head Clerks, Junior Statistical Assistant/U. D. C. and L. D. C. as would be evident from Annexures-11, 12, 13, and 14, the seniority lists of Cuttack Circles-I to III and Dhenkanal Circle respectively. But this is disputed on behalf of the opposite parties. As already indicated, the main ground of attack of the opposite parties is that the petition has been filed to quash Annexure-3, the order of transfer dated 15.11. 1977, after a lapse of more than three years. In reply to this, learned counsel for the petitioner submitted that after the transfer order dated 15. 11. 1977, the petitioner was placed under suspension on 22. 2. 1978 for not carrying out the order vide Annexure-5 and a disciplinary proceeding was started against him. Thereafter the disciplinary authority stopped two of his increments in the disciplinary proceeding, reinstated him and directed him to join at Dolipur under the District Inspector of Schools, Jajpur-If under the Inspector of Schools, Cuttack-II Circle as per order dated 8. 11. 1979. (Annexure-10) which the petitioner contested and filed a representation on 3. 3. 1980 vide Annexure-4. His representation was rejected on 14. 10. 1980 vide Annexure-8 and thereafter he has filed this writ petition. So there was no question of delay in filing the petition. There is considerable force in the contention of the learned counsel for the petitioner. Considering the facts and circumstances of the case, we are of the view that there is no delay in filing this writ petition.

4. The next question for consideration is whether the petitioner can be transferred beyond the cadre area. In this connection Annexure-9, a copy of the letter No. 17250 ( 115 ) dated 13th November, 1973 issued by the Government of Orissa in the Political and Services Department, is relied upon by the petitioner. Therein it is stated:

'(1) No non-gazetted officer should ordinarily be transferred beyond the cadre area except on his own request or when the transfer is on promotion and no promotion post is vacant and available within the Cadre. (Explanation : Cadre area means District, Division or any other territorial area to which the Cadre is confined).

(2) Ministerial Officers should not be ordinarily transferred from a particular station before completing five years. There would however be no objection to transfer from one seat or branch to another or from one office to another at the same station during the period of. five years.'

The above sub-paragraphs clearly show that non-gazetted employees like the petitioner should not be ordinarily transferred beyond the cadre area except on their request or on promotion. In this case admittedly the transfer was not on the own request of the petitioner nor has it been occasioned on account of promotion. Transfers are generally not to be given effect to from one cadre to another or from one district to another so far as non-gazetted employees are concerned. In this case the petitioner was transferred from one Circle to another. So the order of transfer is contrary to the Government Circular No. 17250(115) dated 13. 11. 1973 as mentioned above and evidently it would disturb the cadre position maintain at the Circle level. Nothing is indicated in the counter affidavit as to why such an unusual course was considered expedient. This view has been taken in the decision reported in I.L.R. (1974) Cuttack 925 Dhruba Charan Nanda v. Additional Director of Health Services (Family Planning and Medical College & Hospital, Bhobaneswar. So the order of transfer of the petitioner from Cuttack-I to Cuttack-II Circle as per Annexure-3 cannot be sustained.

5. After considering the arguments of both sides and the facts and circumstances of the case we hold that Annexure-3, the order of transfer dated 15. 11. 1977, is bad and the same is quashed. The consequential orders passed in Annexures-6, 8 and 10 are also quashed.

6. In the result, the writ petition is allowed with costs. The petitioner is entitled to all his benefits and he should be posted in his parent Circle, i. e., Cuttack-I Circle, as early as possible. Hearing fee is assessed at Rs. 100.00.

K.P. Mohapatra, J.

7. I agree.


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