The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.7482 of 2022 Devi Prasad Dash ..... State of Odisha & Ors. -versus- ..... CORAM:
Legal Reasoning
Petitioner Ms. P. Rath, Sr. Advocate along with Mr. A. Mohanty, Advocate Opposite Parties Mr. S. Jena, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 27.06.2024 Order No. 09 1. This matter is taken up through hybrid mode. 2. Heard Ms. P. Rath, learned Sr. Counsel appearing for the Petitioner along with Mr. A. Mohanty and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia challenging office order dtd.16.03.2022 so issued by the Govt.- Opp. Party No. 1 under Annexure-3. Vide the said order; Petitioner was deployed to Sri Bikrama Dev. Govt. Arts and Crafts School, Jeypore as instructor on administrative ground with immediate effect. 4. It is the main contention of the learned Sr. Counsel appearing for the Petitioner that since the Petitioner is a Lecturer, which comes under the cadre of Group-B Gazetted so framed by the Govt. in the Department of Tourism & Culture in its notification Page 1 of 4. dtd.04.12.2006 under Annexure-4, Petitioner could not have been deployed to a post, which is not in the cadre itself. 4.1. It is also contended that considering the stand taken in the writ petition, this Court while issuing notice of the writ petition, passed an interim order on 22.03.2022 staying operation of order under Annexure-3 and by virtue of the same, Petitioner is continuing in his parent post as on date. It is contended that since Petitioner is a Lecturer, which comes in the cadre of Group-B Gazetted of the Odisha Culture Service (Method of Recruitment and Condition of Service) Rules, 2006, he could not have been deployed to a post, which is not there in the cadre itself. 4.2. In support of her aforesaid submission, Ms. P. Rath, learned Sr. Counsel appearing for the Petitioner relied on a decision of this Court passed in the case of Upendra Chandra Sarangi Vs. State of Odisha & Ors. decided on 24.04.1974. This Court in Para 4 of the said Judgment held as follows:- “But so far as the petitioner's appointment is concerned, he having been appointed to a specified post in the Directorate of Health Services, he cannot be compelled to be included within a cadre without his consent. No such consent has been obtained from the petitioner. Hence, we are constrained to hold that the petitioner's appointment being to a particular post of a Statistician in the Directorate of Health Services and the said post not being within a cadre, it is not open to opp. party No. 1 to transfer the petitioner from the said post.” 5. Learned Addl. Govt. Advocate relying on the stand taken in the counter affidavit while justifying the deployment so passed vide the impugned order under Annexure-3, contended that Page 2 of 4. basing on the communication issued by the Govt. in the General Administrative Department on 08.07.2013 under Annexure-B/3, since the scale of pay of both the post of Lecturer and Instructor is same, Petitioner has been deployed to the said post. The stand taken in Para 5 of the counter reads as follows:- “5. That in reply to the averments made in Paragraph-1 of the writ petition, it is humbly submitted that there was an enquiry about the allegations/ complain irregularity/unauthorized leave of the petitioner by the OP No.1 Accordingly Sri Sanjay Kumar Mishra, OAS, Deputy Secretary to Govt. conducted an enquiry into the matter and submitted his report on 07.01.2022 to the Govt. (O.P. no1) about the misconduct/irregularity/illegal acts of the petitioner with recommendations that the unauthorized absence of the petitioner is to be deployed to the S.V. Govt. School of Art and Crafts, Jeypore (OP No.4) in order to lower temperature of the campus of the OP No.3. It is also submitted that, the office order dated 16.03.2022 (Annexure-3 to the writ petition) issued by the OP No.1 has never been issued in contravention of the provisions contained in Odisha culture service (Method of Recruitment and condition of service) Rules, 2006 and the manuals of Govt. College Art and Crafts, Khallikote, Ganjam, and S.V. Govt. School of Art and crafts, Jeypore. Further, it is humbly submitted that the petitioner after being selected by the OPSC has been appointed as Lecture in Art Theory in the Govt. College of Art and Crafts, Khallikote by the OP No.1 The pay Band of the post of Lecturer of Govt. college of Art and Craft, Khallikote is Rs.9,300/- to Rs.34,800/- with grade pay of Rs.4,200/- whereas the pay band of Instructor of S.V. Govt. School of Art and Crafts, Jeypore is also Rs.9,300/- to Rs.34,800/- with Grade pay of Rs.4,200/- as per 6th pay commission. It is crystal clear that, the scale of pay and grade pay of both the post of lecturer and instructor are same and they belong to Group-B post. Hence, the contention of the petitioner that the post of the Instructor of S.V. Govt. School of Art and Crafts, Jeypore is a Group-C post is completely false, frivolous and concocted and hence is denied. In this connection, it is pertinent to mention here Page 3 of 4. that the Govt. has also classified /categorized the different posts vide order No. 1880/Gen, dtd.8.7.2013.” 5.1. It is also contended that taking into account the illegal action of the Petitioner in Govt. College of Art and Crafts, Khallikote, he was deployed on administrative ground vide the impugned order dtd.16.03.2022 under Annexure-3. It is accordingly contended that Petitioner has been rightly deployd and it requires no interference. 6. Having heard learned counsel appearing for the Parties and considering the submission made, this Court finds that by the time Petitioner was put under deployment, he was working as a Lecturer, which comes under the Group-B Gazetted cadre of the aforesaid 2006 Rules. Since the post of Instructor is not coming within the cadre of Group-B Gazetted, as per the considered view of this Court, Petitioner could have been deployed to a post, which is not there in the cadre itself. Therefore, this Court is inclined to quash the order of deployment so passed on 16.03.2022 under Annexure-3 and quash the same accordingly. However, quashing of the order will not preclude the Opp. Parties to put the Petitioner under transfer as against the post of Lecturer within the cadre, if it is so required. 7. The writ petition is disposed of accordingly. (BIRAJA PRASANNA SATAPATHY) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Jun-2024 18:33:31 Page 4 of 4.