The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.685 of 2025 Surendra Kumar Jena …. Appellant State of Odisha and others …. Respondents -Versus- Advocates appeared in this case: For the Appellant For the Respondents : : Mr. Sameer Kumar Das, Advocate Ms. Aishwarya Dash Additional Standing Counsel
Legal Reasoning
CORAM: HON’ BLE THE CHIEF JUSTICE AND HON’BLE MR. JUSTICE MURAHARI SRI RAMAN J U D G M E N T ------------------------------------------------------------------------------- Date of hearing and Judgment: 7th May, 2025 ------------------------------------------------------------------------------- HARISH TANDON, CJ. 1. Challenging the office order dated 10th March, 2025 issued by the Director, Higher Education deploying the appellant in Naami College, Naami in the district of Bhadrak on the administrative ground, the appellant filed a writ petition being W.P.(C) No.7783 of 2025 before the learned Single Judge. The Page 1 of 9 W.A. No.685 of 2025
Decision
said writ petition was disposed of with categorical finding that the moment such transfer was necessitated by an administrative exigency, the writ Court should be slow and circumspect in interfering with such administrative order. 2. The appellant was permitted to join the transferred post with the rider that it would not be construed as an acquiescence or waiver of their rights and shall be without prejudice to their rights and contentions. 3. The pivotal issue involved in the instant writ appeal is whether the Director of Higher Education is within its competence to transfer the ministerial staff from one institution to another institution within the revenue district. 4. The respective counsel are ad idem on the applicability of the Odisha Non-Government Aided Colleges Ministerial Service (Method of Recruitment and Conditions of Service) Rules, 1999. According to the respective counsel, the provisions contained in the aforesaid Rules have to be interpreted in a meaningful manner so as to render it workable than to make it redundant. W.A. No.685 of 2025 Page 2 of 9 5. The reliance is placed on the definition of a common cadre given under Rule-3(e) of the said Rules to mean the common cadre of the ministerial employees of the Non-Government Aided Colleges in respect of a revenue district. Rule-4 of the said Rules is more expansive imbibing within itself, several ministerial posts which include the Junior Clerk, the Cashier, the Junior Accountant, the Senior Clerk and the Head Clerk of the Non-Government Aided Colleges. A striking feature can be noticed from the language employed in Rule-4 of the said Rules that those ministerial employees mentioned in Rule-4 shall form a separate cadre meaning thereby they would constitute a homogenous class as an offshoot of the common cadre. 6. We are not unmindful of the proposition of law that the transfer being an incident of service, the employer reserves his right to transfer its employee from one organization to another provided both the organizations are within their administrative control. 7. The writ Court does not encourage any proceedings at the behest of an employee challenging an order of transfer, unless such order is beyond the Rules applicable in this regard or is tainted Page 3 of 9 W.A. No.685 of 2025 with malice or perceived to be a punitive in nature. The Administrative exigency is an expression of a wide connotation and has to be understood both subjectively and objectively. In order to run the smooth administration, the authorities have a right to transfer any employee from one place to another but the moment such transfer is apparently contrary to the mandate of the statutory Rules, such order is susceptible to be interfered with as the authority cannot transgress their statutory limits set forth in the Rules. Any action of the statutory authority beyond the circumference of the statutory provisions is liable to be interfered under Article 226 of the Constitution of India as it is an ardent duty of the Court to put the authorities within the precincts of law and should not encourage any departure or violation thereof. 8. Though we do not find any incongruity and/or inconsistency between Rule-3(e) and Rule-4, yet the Government was of the view that there appears to be an ambiguity in interpreting and/or implementing the aforesaid provisions and in exercise of powers under Rule 16, the clarificatory circular was issued vide No. HE-NCET-I-POLICY-0002-2021-15521, Bhubaneswar, dated 16th April, 2022 addressed to all the Principals W.A. No.685 of 2025 Page 4 of 9 of the Non-Government Aided Colleges stipulating that the employees of the Non-Government Colleges who are in receipt of grant-in-aid in terms of the G.I.A. Order 2004/ 2008/ 2009/ 2014 do not belong to a State wide common cadre and, therefore, are not transferable from one institution to another. The said notification is reproduced as under: “GOVERNMENT OF ODISHA HIGHER EDUCATION DEPARTMENT *** No.HE-NCET-I-POLICY-0002-2021 15521// Bhubaneswar, dated 16.04.2022 From To Saswat Mishra, IAS Principal Secretary to Government The Principals (488 & 662 categories of Non-Government Aided Colleges) Sub: Transferability of employees receiving grant- in-aid under GIA Orders 2004/2008/2009/2014 Madam/Sir, There is doubt in certain quarters as regards the transferability of employees in Non-Government Colleges who are in receipt of grant-in-aid under GIA Orders 2004/2008/2009/2014. It is hereby clarified that since such employees do not belong to the state-wide common cadre, they are not transferable from one institution to another. W.A. No.685 of 2025 Page 5 of 9 Yours faithfully Principal Secretary to Government Memo No. 15522 //Date-16.04.2022 to Copy Balasore/ Berhampur/ Bhubaneswar/ Sambalpur for information and necessary action. the Regional Director of Education, Jeypore/ Principal Secretary to Government” 9. Though the definition of the common cadre under Rule- 3(e) engulfed all the ministerial employees of the Non-Government Aided Colleges in respect of a revenue district, but Rule-4 thereof impliedly excludes certain ministerial employees like the Junior Clerk, the Cashier, the Junior Accountant, the Senior Clerk and the Head Clerk of the Non-Government Aided College therefrom and to form a separate cadre. 10. The moment the ambiguity was perceived between a common cadre of the ministerial employees and the separate cadre encompassing certain ministerial employees, such clarificatory circular was issued so that the employees of the Non-Government Aided Colleges receiving grant-in-aid shall remain in the institution and should not be transferred to another institution. W.A. No.685 of 2025 Page 6 of 9 11. The moment the Government has taken a conscious decision by issuing a clarificatory circular and the source of power to issue such circular emanates from the statutory Rules, the adherence thereof is inevitable and the statutory authority cannot transgress the rigor of the same and take a decision contrary there to. 12. Ms. A. Dash, learned Additional Standing Counsel for the State tried to impress the Court that the provisions contained in the said Rules should receive a purposive construction instead of literal construction. As according to her, the transfer of an employee from one institution to another within the revenue district on the ground of administrative exigencies does not violate any of the provisions of the said Rules. Though the argument appears attractive but the moment the Government has issued a clarificatory circular conveying a laudable intention that the employees of the Non-Government Aided Colleges receiving grant-in-aid cannot be transferred from one institution to another, the scope of literal or purposive construction becomes mere academic and, therefore, we need not invest much endeavor in the above aspect. W.A. No.685 of 2025 Page 7 of 9 13. Once the intention is evident and be gathered with precession and clarity (in this case the clarificatory circular dated 16th April, 2022), the interpretation to various provisions has to be assigned keeping in mind the intention of the law-makers and any other interpretation which would run contrary thereto should be avoided. Since a conscious decision is taken by the Higher Education Department by issuing the said clarificatory circular dated 16th April, 2022 that the employees of the Non-Government Aided Colleges who receive grant-in-aid cannot be transferred from one institution to another, it does not invite any interpretative tool to be used to restrict its applicability to inter-revenue district and not intra-revenue district. 14. We find that the judgment dated 20th March, 2025 passed by the learned Single Judge in W.P.(C) No.7783 of 2025 cannot be upheld and, therefore, the same is hereby set aside. 15. Consequently, the order of the Director, Higher Education dated 10th March, 2025 is hereby quashed and set aside. The writ petition shall be deemed to be disposed of in the light of the observations made hereinabove. W.A. No.685 of 2025 Page 8 of 9 16. The appeal is thus disposed of, however, in the circumstances with no order as to costs. (Harish Tandon) Chief Justice (M.S. Raman) Judge S. Behera A. Nanda Signature Not Verified Digitally Signed Signed by: ANISHA NANDA Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-May-2025 12:33:19 W.A. No.685 of 2025 Page 9 of 9