The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jan-2025 14:07:00 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.29211 of 2022 & W.P.(C) No.31902 of 2022 (In the matter of an application under Articles 226 and 227 of the Constitution of India) In W.P.(C) No.29211 of 2022 Kamal Lochan Sahoo …. Petitioner -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. Subir Palit, Senior Advocate Mrs. S. Patnaik, Advocate For Opposite Parties
Legal Reasoning
: Mr. P.K. Rath, Senior Advocate For O.P. Nos.5 to 12 Ms. B.L. Tripathy, A.S.C. In W.P.(C) No.31902 of 2022 Debasish Mishra …. Petitioner -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. Subir Palit, Senior Advocate Mrs. S. Patnaik, Advocate For Opposite Parties : Mrs. Pami Rath, Senior Advocate For O.P. No.8 Ms. B.L. Tripathy, A.S.C. W.P.(C) No.29211 & 31902 of 2022 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jan-2025 14:07:00 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 15th January 2025 B.P. Routray, J. 1.
Decision
The cause of action in both the writ petitions being similar, they are heard together and disposed of by this common order. 2. Heard Mr. Subir Palit, learned Senior Advocate along with Mrs. S. Patnaik, learned Advocate for the Petitioners in both the writ petitions and Ms. B.L. Tripathy, learned Additional Standing Counsel for the State-Opposite Parties, Mr. P.K. Rath and Mrs. Pami Rath, learned Senior Advocates, for the private Opposite Parties in both the writ petitions. 3. Present Petitioners, who were initially appointed as IPO under Micro, Small & Medium Enterprises Department (in short, “MS&ME Department”) in the year 2015 were deputed upon bifurcation of Handlooms, Textiles and Hanidcrafts Department (in short, “HT&H Department”) as a new Department. 4. Both the Petitioners have been relived from MS&ME Department vide Notification dated 29.10.2020 and joined in HT&H W.P.(C) No.29211 & 31902 of 2022 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jan-2025 14:07:00 Department consequently. Being aggrieved with such order relieving them from MS&ME Department, they approached this Court in W.P.(C) No.29305 of 2020. Said writ petition was disposed of by this Court vide order dated 09.12.2021 with observation that, since service conditions has already been introduced in the newly constituted HT&H Department, the same should be implemented by the authorities. 5. Then both the Writ Petitioners filed two separate writ petitions in W.P.(C) No.15474 of 2022 and W.P.(C) No.15478 of 2022. This Court vide order dated 18.7.2022 and 20.7.2022 disposed of both writ petitions respectively, directing the Principal Secretary to Government of Odisha in MS&ME Department to take a decision in accordance with law on the representation filed by the Petitioners. Consequent upon said direction, the Principal Secretary to the Government of Odisha in MS&ME Department passed the impugned order dated 19.9.2022 rejecting the prayer of the Petitioners for their repatriation to the parent Department, i.e. MS&ME Department. The Petitioners have challenged said impugned orders under Annexure-10 & 8 in both the writ petitions respectively with further prayer for their repatriation in MS&ME Department. W.P.(C) No.29211 & 31902 of 2022 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jan-2025 14:07:00 6. It is submitted on behalf of the Petitioners that, since private Opposite Parties 5 to 12, who are their Juniors in service, have been retained in MS&ME Department violating bottom seniority principle, they should be allowed to be repatriated to the parent Department. 7. Learned Senior Advocate for the private Opposite Parties on the other hand replies that, the Petitioners are standing on different footing and having been sent to HT&H Department to continue there since long and having availed promotional benefits there, their question of repatriation to MS&ME Department will not arise. 8. The simple issue involved in the present writ petitions is that, whether sending the Petitioners to HT&H Department is violating the bottom seniority principle as stated in Notification dated 28.9.2020 (Annexure-3 in W.P.(C) No.29211 of 2022) of MS&ME Department, based on G.A. Department Notification dated 19.12.2011? 9. Before bifurcation, upon creation of new HT&H Department, options were invited from the employees including the Petitioners, where these Petitioners remained silence without exercising any option. It is true that, despite being a general notification made under W.P.(C) No.29211 & 31902 of 2022 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jan-2025 14:07:00 Annexure-3, the Petitioners did not exercise their option either to be repatriated or to be retained in parent MS&ME Department. 10. In the tentative gradation list of MS&ME Department dated 16.3.2020 (Annexure-5 in W.P.(C) No.29211 of 2022), the Petitioners have been placed at Serial No.21 & 15 respectively. A close perusal of said tentative gradation list, placed at Annexure-5 & 4 in both the writ petitions, it is seen from the same that private Opposite Parties have joined earlier in service than the Petitioners, except Opposite Parties 6, 7, 8 & 10 in respect of Debasish Mishra (Petitioner in W.P.(C) No.31902 of 2022) and Opposite Party No.8 in respect of Kamal Lochan Sahoo (Petitioner in W.P.(C) No.29211 of 2022). 11. As per the impugned order of transfer dated 29.10.2020, Kamal Locah Sahoo has been placed at Serial No.62 and Debasish Mishra at Serial No.67 as per bottom seniority list. The contention of the Petitioners that, they are senior to all the private Opposite Parties in the gradation list in their parent Department before the order of transfer was issued on 29.10.2020, is found undisputed. Nonetheless, even if the seniority is accepted in favour of the Petitioners, then also no case W.P.(C) No.29211 & 31902 of 2022 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jan-2025 14:07:00 is made out in their favour for their repatriation to parent Department in absence of any option exercised by them. 12. As stated above, the Petitioners had earlier approached this Court in W.P.(C) No.29305 of 220, wherein this Court has disposed of the same by order dated 9.12.2021. Said order dated 9.12.2021 reads as follows:- “1. This matter is taken up through hybrid mode. 2. Head Ms. S. Patnaik, learned counsel for the petitioners and Mr. H.M. Dhal, learned Addl. Govt. Advocate for the State opposite parties. 3. The petitioners, by means of this writ petition, seek to quash the resolution dated 20.08.2020 under Annexure-2, notification dated 28.09.2020 under Annexure-3 and the notification dated 29.10.2020 under Annexure-7, by declaring the action taken by the opposite parties inviting option from the petitioners without framing new cadre rules as illegal and contrary to the settled principle of law. 4. Ms. S. Patnaik, learned counsel for the petitioners contended that during pendency of this writ petition cadre rule has already been framed and, therefore, if option is invited the same should be done in accordance with the cadre rule. It is also W.P.(C) No.29211 & 31902 of 2022 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jan-2025 14:07:00 indicated in the Order No.08 Page 2 of 2 interim order dated 03.11.2020 passed by this Court in I.A. No.12801 of 2020 that since the petitioners are already relieved in absence of any service condition to guide the petitioners in the new establishment, the service condition governing the petitioners at the time of their relieve shall continue till a service condition is introduced and implemented in respect of the petitioners. As such, since service condition has already been introduced, the same should be implemented by the authority concerned. 5. Mr. H.M. Dhal, learned Addl. Govt. Advocate for the State opposite parties has no objection to such proposition. 6. Therefore, the writ petition stands disposed of in above terms. The interim order passed by this Court stands vacated. Issue urgent certified copy as per rules.” 13. Since this Court has not said anything regarding repatriation of the Petitioners to MS&ME Department or regarding cancellation of their order of transfer dated 29.10.2020, but has only observed that the service conditions having been introduced the same should be implemented. In other words, the prayer of the Petitioners to quash the order of transfer has been rejected unsaid. So on that count, their prayer in the present writ petitions is held not maintainable. W.P.(C) No.29211 & 31902 of 2022 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jan-2025 14:07:00 14. Further, it remains undisputed that, the Petitioners have been absorbed in the new cadre, i.e. in the Odisha Sub-ordinate Handicrafts Services (Method of Recruitment and Conditions of Service) Rules, 2021, which has been implemented in respect of HT&H Department governing the service conditions of the Petitioners upon their absorption. So the Petitioners are bound to take benefit of prospects of their career in said service rules. As such, seen from either angel, no merit is seen in the contention of the Petitioners for their repatriation to the parent Department. 15. In the result, both the writ petitions are dismissed. (B.P. Routray) Judge B.K. Barik/Secretary W.P.(C) No.29211 & 31902 of 2022 Page 8 of 8