The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.3613 and 3791 of 2025 (Applications under Articles 226 and 227 of the Constitution of India) Dillip Kumar Biswal … Petitioner -versus- State of Odisha & another … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.Srinivas Mohanty, Advocate. -versus- For Opposite Parties : Mr. S.S.Routray, A.S.C. In W.P.(C) No.3791 of 2025 Sankar Mallick … Petitioner -versus- State of Odisha & another … Opposite Parties Advocates appeared in the case through hybrid mode: W.P.(C) Nos.3613 & 3791 of 2025 Page 1 of 12 For Petitioner : Mr.Srinivas Mohanty, Advocate. -versus- For Opposite Parties : Mr. S.S.Routray, A.S.C. --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA 15.7.2025. JUDGMENT Sashikanta Mishra,J. Both these Writ Petitions involve common
Decision
facts and law and being heard together, are disposed of by this common judgment. For brevity, the facts of W.P.(C) No.3613/2025 are only reflected in this judgment. 2. The Petitioner was engaged as Gram Rozgar Sevak w.e.f. 15.9.2008 after undergoing due selection process and was assigned to such work in Bachhalo Gram Panchayat of Naugaon Block in the district of Jagatsinghpur. While working as such, an order dtd.07.11.2019 was issued by the Collector transferring him to Ersama Block. He challenged such transfer before this Court in W.P.(C) No.21819/2019. W.P.(C) Nos.3613 & 3791 of 2025 Page 2 of 12 Initially, by order dtd.15.11.2019 this Court directed status quo to be maintained with regard to the post held by the Petitioner. Ultimately, by order dtd.15.2.2022, the Writ Petition was disposed by quashing the order of transfer. The State carried the matter in appeal to the Division Bench being W.A. No.433/2022. By order dtd.21.3.2023, the Division Bench set aside the order of the learned Single Judge passed in the aforementioned Writ Petition and restored the order of transfer of the Petitioner. Pursuant to such order, the Petitioner joined in his place of transfer. On 27.2.2024, the Odisha Accountant-cum-Data Entry Operator (Method of Recruitment and Conditions of Service) Rules, 2024 (hereinafter referred “Rules, 2024) was notified wherein a provision was made for absorption of Gram Rozgar Sevaks as Accountant-cum-Data Entry Operator (ADEO) as a one-time measure. Accordingly, a select list was published in the district of Jagatsinghpur, but the name of the Petitioner was not included therein. The Petitioner therefore, approached this Court in W.P.(C) Nos.3613 & 3791 of 2025 Page 3 of 12 W.P.(C) No.29934/2024 which was disposed of by order dtd.2.12.2024 granting liberty to him to submit a representation to the Collector highlighting his grievance. The Petitioner submitted his grievance in the form of representation addressed to the Collector on 09.12.2024. The Collector after considering the relevant facts, rejected the representation by order dtd.4.1.2025 by holding that the Petitioner was not in duty from 15.11.2019 to 23.4.2024. The said order is impugned in the present Writ Petition. 3. According to the Petitioner, this Court having directed to maintain status quo in the earlier Writ Petition filed by him, he must be deemed to have continued in the post held by him at that relevant time till the order of transfer was quashed. The Petitioner continued till the order of the learned Single Judge was set aside by the Division Bench. Thereafter, he joined in the place of transfer. As such, he was in duty all through for which rejection of his representation is bad in law. On such facts, the Petitioner has preferred this Writ Petition with the following prayer; W.P.(C) Nos.3613 & 3791 of 2025 Page 4 of 12 “The petitioner, therefore, prays that your lordship would graciously be pleased to admit this petition, call for the records and after hearing the parties be pleased to quash the rejection order dtd-04.01.2025 under ANNEXURE-7; And further be pleased to direct the authority to appoint the petitioner as ADEO (Accountant cum DEO) on the basis of the Gazette notification dtd-27.02.2024 vis-a-vis as per select list dtd-21.06. 2024; And pass any other and/or further order as deemed the fit circumstances of the case, And for this act of kindness the petitioner as in duty bound shall for ever pray.” proper under and 4. Counter affidavit has been filed by the C.D.O.-cum- Executive Officer (Opp.Party No.2) inter alia, stating that the name of the Petitioner was considered by the Selection Committee constituted for promotion of Gram Rozgar Sevak to the post of ADEO but the committee did not find the Petitioner suitable as he had not rendered 5 years continuous service as on 27.2.2024. The Petitioner had not performed his duty from 15.11.2019 to 23.4.2023 having remained absent from duty without any permission or leave. He was also not paid remuneration during this period nor was the gap period regularized. He was therefore, disqualified from being considered for absorption. W.P.(C) Nos.3613 & 3791 of 2025 Page 5 of 12 5. The Petitioner has filed a further affidavit stating that pursuant to the interim order passed by this Court on 15.11.2019 he had continued in his earlier place of engagement at Naugaon Block. After passing of such order he had submitted a series of representations for permitting him to resume his work and for grant of remuneration which were never considered. Even after the order of transfer was quashed on 15.2.2022, he submitted representation for permitting him to resume his work and for granting him remuneration. 6. Heard Mr. Srinivas Mohanty, learned counsel for the Petitioner and Mr. S.S. Routray, learned Addl. Standing Counsel for the State. 7. Mr.Mohanty would argue that admittedly the order of transfer dtd.7.11.2019 was interfered with by this Court in the earlier Writ Petition by specifically directing that status quo with regard to the Petitioner’s post be maintained. This implies that the Petitioner was allowed to continue in the post held by him at that point of time. The order of transfer was eventually W.P.(C) Nos.3613 & 3791 of 2025 Page 6 of 12 quashed which means the Petitioner’s continuance in his place of posting was confirmed. Though the order of the Single Judge was set aside and the order of transfer was restored, the Petitioner acted in compliance of such order by joining in the place of transfer. It cannot therefore, be held that he had not rendered any work or that he was unauthorizedly absent. Non-payment of remuneration cannot imply break in service. 8. Mr.Routray, learned State counsel, on the other hand, argues that as per the Rules, a Gram Rozgar Sevak in order to be considered for absorption in the permanent post of ADEO should have rendered 5 years continuous service as on the date of coming into force of the Rules i.e. 27.2.2024. The Petitioner was absent from duties from 15.11.2019 to 23.4.2023 inasmuch as he was never allowed to resume his duties nor paid remuneration. Such gap period was also never regularized. Therefore, notwithstanding the fact that the Petitioner was engaged since 15.9.2008 yet, he does not satisfy the requirement of rendering 5 years W.P.(C) Nos.3613 & 3791 of 2025 Page 7 of 12 continuous service as on the date of coming into force of the Rules for being considered for absorption as ADEO. 9. I have heard learned counsel for the parties at length and have also carefully considered the materials on record. There is no dispute that the Petitioner was engaged since 15.9.2008 and had rendered continuous service till 15.11.2019. On that date, this Court in W.P.(C) No.21819/2019 directed that status quo with regard to the post held by the Petitioner shall be maintained. This obviously implies that this Court wanted the existing situation to be maintained. This, in turn, implies that the Petitioner continued to work as Gram Rozgar Sevak in the post held by him at that time. The order of transfer was quashed by this Court by order dtd.15.2.2022. This means, the Petitioner’s continuance in the post held by him was confirmed. Nothing has been placed on record to show that the Petitioner was absent from duty. Of course, the Petitioner has submitted representation seeking W.P.(C) Nos.3613 & 3791 of 2025 Page 8 of 12 permission to render work. This Court would deal with the effect of such representation a little later. 10. The order passed by learned Single Judge was set aside by the Division Bench on 21.3.2023 whereby, the order of transfer was revived. So, from 15.2.2022 till 21.3.2023, there was no order of transfer. It appears from the record that the Petitioner was not paid remuneration during the interregnum nor such period was regularized. As already stated, the Petitioner submitted several representations for permitting him to render work and to be paid his remuneration. No order appears to have been passed on such representations. Thus, as things stand, there is nothing on record to show that any action was taken against the Petitioner for purported non-performance of his duty. That apart, this Court having directed status quo to be maintained, it was obviously not open to the concerned authorities to act otherwise. Be it noted that it was never the case of the authorities that the Petitioner was not working in the post held by him on 15.11.2019, the date on which the interim order W.P.(C) Nos.3613 & 3791 of 2025 Page 9 of 12 was passed. Such being the case, the authorities could not have deprived him from rendering work. What is surprising to note is, despite having taken the stand that the Petitioner was unauthorizedly absent from his duties, his case was considered for absorption to the post of Gram Rozgar Sevak by the selection committee as per the 2024 Rules. It is stated in Paragraph-5 of the counter that the selection committee did not find the Petitioner a suitable candidate as he had not rendered 5 years continuous service as on 27.2.2024. This stand of the authorities is not only contradictory but also unconscionable for the reason that if the Petitioner was authorizedly absent from his duty from 15.11.2019, where was the question of the selection committee considering his case at all for absorption? Moreover, there being no positive or specific order treating the Petitioner as being unauthorizedly absent, mere stand taken in the counter affidavit cannot be accepted. As regards non-payment of remuneration, the same, even if true, cannot in the absence of any specific order, wipe out the period from 15.11.2019 to W.P.(C) Nos.3613 & 3791 of 2025 Page 10 of 12 23.4.2023. Significantly, it is not disputed that the Petitioner, after revival of the order of transfer, has joined in his transferred place. It is for the authorities concerned to deal with the period in between. Since they themselves have not taken any decision in such regard, the Petitioner cannot be blamed for the same or deprived of his legitimate due. By accepting the joining of the Petitioner in his transferred place and in the absence of any specific order dealing with the relevant period prior to it, the authorities must be deemed to have accepted his continuance in employment. In the impugned order, the Collector has stated the following: “And whereas, Sri Dillip Kumar Biswal, GRS of Bachhalo GP remained absent from office duty from date 15.11.2019 AN and did not join in his new place of posting i.e Gadaharishpur under Erasama Block disobeying the order of Hon’ble High Court as well as his Higher Authorities serious misconduct, which amounts negligence & dereliction of duty.” to The above ground is untenable for the reason that no action worth the name was taken against the Petitioner for the so-called ‘serious misconduct, negligence and dereliction of duty’. Not having taken any action at the relevant time, it is obviously not open W.P.(C) Nos.3613 & 3791 of 2025 Page 11 of 12 to them to cite the ground of misconduct etc. at this belated stage. 11. For the foregoing reasons therefore, the rejection of the representation of the Petitioner on the above grounds cannot be sustained. The Petitioner must be deemed to have been in employment all through thereby satisfying the requirement of rendering 5 years continuous service for absorption as ADEO. 12. In the result, both the Writ Petitions are allowed. The impugned order dated 04.1.2025 is quashed. The Opp. Party-authorties are directed to consider the case of the Petitioners for absorption as ADEO in terms of Rule 10 of the 2024 Rules and to take a decision thereon within four weeks from the date of production of certified copy of this order by the Petitioners. …………….……………. Sashikanta Mishra, Judge Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Jul-2025 10:47:13 Ashok Kumar Behera W.P.(C) Nos.3613 & 3791 of 2025 Page 12 of 12