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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.2681 of 2024 Sashikanta Nag and another …. Petitioner Mr. Kananbala Roy Choudhury, Advocate -versus- State of Odisha and others …. Opposite Parties Mr. A.P.Das, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No. 01. 1. This matter is taken up through Hybrid Arrangement (Virtual
Decision
ORDER 06.02.2024 /Physical Mode). 2. Heard learned counsel for the Petitioners as well as learned Additional Standing Counsel for the State. Perused the Writ Petition as well as the documents annexed thereto. 3. The Petitioners have filed the present writ application with the following prayer: “ Under facts and in the circumstances stated above it is humbly prayed that this Hon’ble Court may graciously be pleased to admit the wit petition, call for and peruse the connected records so that conscionable justice can be done and after hearing the Petitioner’s counsel, be further pleased to:- i) Issue Rule NISI calling for the O.P. to show cause as to why the Petitioners shall not be recommended for change of cadre being fully eligible as per requirements of Notification under Annexure-5. ii) And if they show no/insufficient cause make the Rule absolute; iii) And further be pleased to direct the O.P. to allow // 2 // iv) the applications of the Petitioners Annexure-7 series taking into account the order of the authority setting aside the effect of black mark vide annexue- 4 series. Issue direction to the O.P. and/or their subordinates not to take any coercive action against the Petitioner till the disposal of the writ petition. v) And may pass any such other order(s)/direction (s) as this Hon’ble Court deemed just and proper;” 4. Learned counsel for the Petitioner at the outset contended that the Petitioners joined in service on 01.06.2008 as Sepoy at Kalinganagar, Jajpur. Thereafter, the Petitioners were continuing in service and discharging their duty to the satisfaction of the authority. Finally, the Petitioners came across a Notification of the Government of Odisha, Home Department dated 13.09.2022 under Annexure-6 to the Writ Petition. Pursuant to such Notification of the Government a new Rule namely “Odisha Battalion Service (Method of Recruitment and Conditions of Service of Sepoys or Constables, Havildars and ASI (Armed)) Order, 2022 was promulgated. Referring to Appendix- A of the aforesaid order, 2022, learned counsel for the Petitioners submitted that the same provides for change of cadre to the rank of sepoy in different Battalion and accordingly upon consideration of application received the authority shall permit change of cadre from one battalion to the other in the same calendar year. 5. In course of his argument, further referring to Clause-6, learned counsel for the Petitioners submitted that one of the requirement is that the Sepoy or Constable applying for change of cadre must have good service record and that he must not have any Major punishment or more than five minor punishments to his discredit during his entire service career and no Departmental Proceeding or Criminal Proceeding or vigilance case or Human // 3 // Rights Protection cell related case shall be pending against him. In the said context, learned counsel for the Petitioners submitted that such restriction under Clause-6 will not stand on the way of the Petitioners to consider their case for change of cadre. She further contended that in view of the order passed on 19.10.2023 under Annexure-4 involving the Petitioners, the D.I.G. of Police, SAP, in Paragraph-7 of the order under Annexure-4 has categorically held that in view of the judgment of this Court in Biswajit Panigrahi-v.- State of Odisha and others in W.P.(C) No.27484 of 2022, the Commandant, 3rd I.R. Bn. Jajpur was directed to ensure that while calculating the number of Back mark to the discredit of the Petitioners or for initiation of proceeding under Police Manual Rule 836. The same should not be counted as equivalent of Black Mark awarded vide B.O.No.30.05.2020. A similar order was passed in respect of other Petitioner on 9.10.2023 and Paragraph-7 of the order also contained the identical direction. 6. In view of the aforesaid factual background of both the Petitioners, learned counsel for the Petitioners contended that both the Petitioners’ are eligible to be considered for change of cadre under Annexure-5 keeping in view the Rule under Annexue-6 to the Writ Petition. Since the names of the Petitioners have not been recommended by the Commandant, the Petitioners being aggrieved by such action of the Commandant has approached this Court by filing the present Writ Petition. 7. Learned counsel for the Petitioners’ also contended that the Petitioners are eligible to be considered for change of cadre and their names should have been recommended by the Commandant. Challenging such inaction of the Commandant, the Petitioners have approached this Court by filing the present Writ Petition. // 4 // 8. On the other hand learned counsel for the State contended that the Petitioners have not approached the Departmental Authority before approaching this Court in the matter. He further contended that in the event this Court directs the Opposite Party No.4 to reconsider the case of the Petitioners within a stipulated period of time strictly in accordance with law he will have no objection to the same. 9. Considering the submissions made by the learned counsel for the respective parties, on careful examination of the background facts and also keeping in view the analysis made herein above, this Court deems it proper to dispose of the Writ Petitioner by granting liberty to the Petitioners to approach Opposite Party Nos. 3 & 4 by filing a fresh representations along with supporting documents within a week from today. In such event the Opposite Party No.4 shall consider the same in accordance with law and in terms of the Order, 2022 under Annexure-6 and in the event it is found that the Petitioners are eligible in terms of the aforesaid order, the Opposite Party No.4 shall recommend the case of the Petitioners for consideration of their cases for change of cadre in terms of the Rule under Annexure-6 to the Writ Petition. Any decision taken by Opposite Party No.3 & 4 shall be communicated to the Petitioners within a week from the date of taking such decisions. 7. With the aforesaid observation, the writ application stands disposed of. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra ) Judge // 5 // Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 10-Feb-2024 11:20:04