The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.27405 of 2023 Tapan Kumar Sahu State of Odisha and others -versus- …. Petitioner Mr.A.K.Pandey, Advocate ….
Legal Reasoning
Opposite Parties Mr.Saswat Das, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 28.08.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the learned Additional Government Advocate. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer : “ The Petitioner therefore humbly prays that your Lordship may graciously be pleased to admit this writ application, issue a Rule NISI calling upon the Opp.Parties to show cause as to why the impugned order dated 28.07.2023 under Annexur-2 shall not be quashed/set aside, if the Opposite Parties fail to sow cause or shown any insufficient cause the Rule may be made, absolute against the Opp.Parties. A N D May pass any other appropriate direction(s)/order(s) as this Hon’ble Court considers may deem just and proper.” 3. It is submitted by the learned counsel for the Petitioner that the Petitioner was engaged as Planning Coordinator in the District Project Office, SSA/DPEP, Koraput on contractual basis vide Office Order dated 20.09.2005. While working as such, the Petitioner was disengaged and reengaged again. Finally, the Petitioner was asked to // 2 // join as Planning Coordinator vide Office Order dated 04.04.2013. at District Project Office, Kendrapara. Accordingly, he joined on 04.04.2013. While the Petitioner was working in the district Project Office, Kendrapra, he was transferred/deployed to /District Project Office, Deogarh vide impugned order dated 28.07.2023 under Anexure- 2 to the Wit Petition. Learned counsel for the Petitioner submitted that since the Petitioner has no other alternative, and he was not even given any time for joining, therefore, he has already joined at Deogarh, however being aggrieved by the impugned order under Annexure-2 dated 28.07.2023 the Petitioner has approached this Court by filing the present Writ Petition. 5. On perusal of the impugned order, it appears that no leave was also allowed to the Petitioner for joining in his service place of posting and he was already relieved on the date of transfer/deployment or order was passed under Annexure-3. Thereafter, after joining at the new place of posting the Petitioner assailed the order dated 28.07.2023 under Annexure-2 to the Writ Petition. 6. Learned counsel for the Petitioner contended before this Court that at the moment there was no guideline/policy to regulate the transfer/deployment of the employees working under SSA Project. He further contended that the guidelines for transfer of contractual employee was formulated and circulated vide Office Order dated 17.12.2018 by the OPEPA. However, the said transfer policy was assailed before this Court by filing W.P.(C) No.12584 of 2019 and W.P.(C) No.24671 of 2020 at the instance of Surya Narayan Mishra and Rajashree Patnaik. A coordinate Bench of this Court vide judgment dated 20.04.2021 has held that the Executive Committee had taken a decision with regard to guideline under Annexure-4 is not competent to take such a decision. Accordingly at paragraph-5 of the judgment the coordinate bench has come to a conclusion that the decision taken by // 3 // the Opposite Parties to transfer the aforesaid two persons pursuant to the guidelines under Annexure-4 is illegal and without jurisdiction. Therefore, their transfer orders be quashed. 7. Learned counsel for the Petitioner further contended that the case of the Petitioner is squarely covered by the judgment of this Court in Surya Narayan Mishra (supra). He also contended that the factual scenario of the case are same and accordingly the ratio decided in the case of Surya Narayan Mishra is applicable to the present case. He further contended that the order of transfer/deployment is illegal as has been held by this Court in the abovenoted case. No new policy has been framed in the meantime. In such view of the matter, learned counsel for the Petitioner that the impugned order is liable to be set aside. 8. On the other hand, learned Additional Government Advocate submitted that he has no instruction whether any new policy/guideline with regard to transfer/deployment of the employees after the judgment in Surya Narayan Mishra (supra) has been issued or not? Further, referring to the impugned order under Annexure-2, learned Additional Government Advocate submitted that the order has been made in exigency of public service. He also contended that the impugned order under Annexure-2 does not refer to guideline under Annexure-4 to the Writ Petition dated 17.12.2018. In such view of the matter, learned Additional Government Advocate submitted before this Court the Opposite Parties have not committed any illegality in transferring the Petitioner in the public exigency. Accordingly, the Writ Petition is devoid of merit and the same is liable to be dismissed. 9. On a careful consideration of the submissions of the learned counsel for the respective parties and upon examination of the factual background of the present case, this Court on a careful examination of the judgment under Annexur-5 to the Writ Petition, it is observed that the guideline dated 17.12.2018 under Annexure-4 has been declared // 4 // illegal by the coordinate Bench of this Court in Surya Narayan Mishra’s case (supra). However, on the submission of the learned Additional Government Advocate for the State that he has no instructions as to whether any transfer policy has been formulated in the meantime or not and accordingly there exists no policy with regard to transfer/deployment at the moment. In such view of the matter, this Court deems it proper to dispose of the Writ Petition by directing the Opposite Party No.1 to consider the representation under Annexure-6 to the Writ Petition in the event the same is pending before him and pass necessary order thereon. It is needless to mention here that the Opposite Parties while considering the representation of the Petitioner shall keep in view the judgment of this Court under Annexure-5 to the Writ Petition and shall dispose of the representation of the Petitioner by passing a reasoned and speaking order within a period of four weeks. The Petitioner is further directed to approach the Opposite Party no.1 along with certified copy of this order. The decision so taken be communicated to the Petitioner within 10 days thereafter. Further, it is directed that when no new transfer policy has been formulated the transfer policy under Annexure-4 has been quashed in the previous Writ Petition. The Opposite Party No.1 shall pass necessary orders cancelling/modifying the impugned order under Annexure-2, if there is no other legal impediment within the aforesaid time stipulation. 10. With the aforesaid observation, the Writ Petition stands disposed of. 8. Issue urgent certified copy of this order as per Rule. ( A.K. Mohapatra ) Judge RKS Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 01-Sep-2023 16:38:50