Orissa High Court
Sunil Kumar Mohanta & Others vs State Of Odisha & Others Opposite ... on 1 February, 2024
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.30084 of 2023
An application under Articles 226 and 227 of the
Constitution of India.
Sunil Kumar Mohanta & others Petitioners
Mr. R.N. Nayak, Advocate
-versus-
State of Odisha & others Opposite Parties
Mr. A.P. Das, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing : 01.02.2024 | Date of Judgment: 01.02.2024
______________________________________________________
A.K. Mohapatra, J. :
1. Heard learned counsel for the Petitioners as well as learned Additional Standing Counsel for the State-Opposite Parties. Perused the pleadings of the parties as well as the documents annexed thereto.
2. The present writ application has been filed by the Petitioners for a direction to the Opposite Parties particularly to the Principal Chief Conservator of Forest and the Regional Chief Conservator of Forest-cum-Field Director of Similipal Tiger // 2 // Reserve, Baripada, Opposite Party Nos.2 & 3 respectively to repatriate the petitioners, who have been working as Forest Guards, to their parent division i.e. Rairangpur Forest Division within a stipulated period of time.
3. The factual background of the present case, in short, is that the Petitioners, who are ten in number, were initially appointed as Forest Guards in the Rairangpur Forest Division. In the year 2019, the Govt. of Odisha, Forest & Environment Dept. took a decision to recognize Similipal Sanctuary Area into two wild life divisions, namely, Similipal South Wild Life Division and Similipal North Wild Life Division. It was also decided not to disturb the employees in the cadre of Forest Ranger and Forest Guard of Karanjia Forest division and Rairangpur Forest Division except changing the Ranges, which come under newly created wild life divisions.
4. After creation of the aforesaid two new wild life Divisions, the administrative set up of the two divisions were required to be made functional with the appointment of new staff. Accordingly, the Foresters and Forest Guards from Karanjia and Rairangpur Forest Division were deployed in the newly created two divisions. So far the present Petitioners are concerned, they belong to Rairangpur Forest Division Cadre and they were deployed in // 3 // Similipal North Wild Life Division vide order dated 30.09.2019 of the Divisional Forest Officer, Rairangpur Forest Division. From the date of such deployment in Similipal North Forest Division, the Petitioners have already completed three years of continuous service, however, they have not been repatriated to their parent division. Being aggrieved by such decision of the Opposite Parties in not repatriating the petitioners to their parent division, the Petitioners have approached this Court by filing the present writ application for a direction to the Opposite Parties to repatriate them to their parent division immediately.
5. Learned counsel for the petitioners submitted that after creation of the two new divisions, the petitioners were sent on urgent basis to man such Forest Divisions and in obedience to such order. The petitioners, without any objection, joined in duty and were discharging their duties. He further submitted that in view of the provisions contained in Odisha Forest Code i.e. the note appended to Rule 72 (5), all Foresters and Forest Guards are to be transferred from one division to another under exceptional circumstances by recording reasons in writing. He also contended that in the event they are transferred to another division, such transfer should not be for a period of more than three years and on // 4 // completion of such three years period, the incumbent should be repatriated to the parent Division on expiry of the aforesaid term.
6. Additionally, referring to the letter dated 11.06.2020 under Annexure-4 to the writ application, learned counsel for the petitioners also contended that the PCCF, Odisha has also issued instruction to all Forest Divisions in the State of Odisha in connection with inter-Division transfer of Foresters and Forest Guards/ repatriation to the parent division regarding. On perusal of the instruction dated 11.06.2020 under Annexure-4, it is revealed that by referring to Rule 72 of Odisha Forest Code, 1979 the PCCF, Odisha has specifically asked to repatriate those foresters/ forest guards to their parent division forthwith. It has also been clarified that wherever such Foresters or Forest Guards have been transferred to another division for a period of more than three years, on such basis the incumbent should be reposted to their parent division on expiry of the term.
7. Further, the PCCF, Odisha in the said letter has categorically observed that in many cases it is seen that Foresters and Forest Guards, who have been transferred outside their parent Division, have not been repatriated to their parent division even after completion of three years as per the Codal Provision. Accordingly, all Forest Divisions were directed to relieve the // 5 // Foresters and Forest Guards, who have been transferred beyond their parent division and have completed three years of service in the Forest Division. Further, a direction has also been given in the said letter to such persons who have completed three years to join in their parent division immediately and to report to that office.
8. Similarly, learned counsel for the Petitioners also referred to the guidelines with regard to the inter-division transfers of Forest Guards in the State issued vide Office Memo No.1185 dtd.01.12.2021 under Annexure-5 to the writ application. Referring to Clause-IV, learned counsel for the Petitioners submitted that maximum period of inter-division transfer shall not be for a period of more than 3 years in a tenure and that the incumbent is deemed to have been repatriated to the parent division on expiry of the 3- years term. Further, the said guideline also provides that the DFO concerned shall ensure that such Forest Guards are repatriated to their respective parent Division and to intimate such fact to the Head Office.
9. He also referred to Clause-IX of the guideline under Annexure-5 which prescribes that the date of deemed repartition of the Forrest Guard to his/her parent Division shall be mentioned in the inter-division transfer order, itself. In view of the aforesaid provisions in the Code and the guidelines prepared by the Forest // 6 // Department as well as the instruction of the PCCF, Odisha- Opposite Party No.3, learned Counsel for the Petitioners submitted that since the Petitioners have completed three years on deputation outside their parent division, they should be immediately repatriated to their parent division.
10. Learned Additional Standing Counsel for the State- Opposite Parties on the other hand referring to the Counter Affidavit filed by the Opposite Party No.3 submitted that inter- division transfer of Foresters and Forest Guards and their repatriation to their parent division are guided and governed by Office Memo No.11447 dtd.11.06.2020 which is applicable to the entire State of Odisha. He further contended that the said Memo dated 11.06.2020 relates to the Foresters and Forest Guards who have been transferred by the PCCF, Odisha based on their own representation. It was also contended that the aforesaid instruction relates to the Foresters and Forest Guards who have overstayed beyond the orders of the PCCF, Odisha and that the same is not applicable to the Petitioners' case.
11. It was also contended that the transfer in the present case i.e. inter-division transfer having been done within the same circle, it is well-within the authority of RCCF as vested in him under Rule 72 of the amended OFD Code, 2020. Learned Additional Standing // 7 // Counsel also referred to the Office Memo dated 01.12.2021 issued by the PCCF and HoFF, Odisha in connection with the inter- division transfer of Forest Guards in the State of Odisha and submitted before this Court that the same relates to the request transfer of Foresters and Forest Guards. Accordingly, it was submitted that O.M. dated 01.12.2021 under Annexure-5 is not applicable to the facts of the Petitioners' case.
12. Learned Additional Standing Counsel, additionally, contended that even assuming that the Memo dated 01.12.2021 under Annexure-5 is applicable to the facts of the Petitioners' case then in view of the provisions contained in clause-X, the PCCF and HoFF, Odisha has the power to effect any transfer on administrative exigency and if required he may also relax any of the provisions contained in the guideline under Annexure-5 in the interest of public service. In view of the aforesaid submission, learned Additional Standing Counsel for the State-Opposite Parties urged that the writ petition is devoid of merit and accordingly the same should be dismissed.
13. Having heard the learned counsels appearing for the respective parties and on a careful examination of the pleadings of the respective parties and on examination of the materials on record, this Court observed that the Petitioners have approached // 8 // this Court by filing the present writ application with a prayer for a direction to the Opposite Parties to repatriate them to their parent division. It was also observed that so far the factual aspect of the matter is concerned there is no dispute by either side. The fact that the Petitioners are all Forest Guards and they have been transferred to outside their division in the year 2019 is not disputed by either side. The only question that falls for determination in the present case is with regard to interpretation of the rules and the guidelines. On perusal of Forest Code i.e. the note appended to Rule 72 (5) it appears that the Foresters and Forest Guards may be transferred beyond their parent division. However, the same can only be done by recording reasons thereof.
14. Furthermore, the said note also provides that such transfer shall be for a maximum period of three years and not beyond. It also provides for a deeming provision i.e. on completion of such period of three years, the Forest Guards and Foresters shall be repatriated to their parent division. The provision contained in OFD Code as referred to hereinabove has also been reiterated in the said guideline under Annexure-5 to the writ application. The provision of Forest Code as well as guidelines has also been reiterated by the PCCF, Odisha and HoFF, Odisha in his letter dated 11.06.2020 under Annexure-4. The State-Opposite Parties took a ground that // 9 // the note appended to Rule 72(5) as well as the guideline under Annexre-5 is not applicable to those cases where the Petitioners have opted for transfer or they have been transferred on their request beyond their division. Such contention of learned Additional Standing Counsel has been stoutly denied by learned counsel for the Petitioners.
15. This Court on a careful examination of the relevant provision of the Forest Code as well as the guidelines is of the considered view that there is no such distinction so far the Forest Guards and Foresters who have been posted beyond their division. The only requirement as is evident from the reading of the Code as well as guideline is that they should be transferred in exceptional cases for reasons to be recorded in writing and such transfer beyond division shall not be for a period more than three years. There is no other classification/ clarification attached to the aforesaid Codal provision as well as the guideline.
16. On a careful scrutiny of the Odisha Forest Code, particularly Rule-72 thereof, this Court observed that the argument advanced by the learned Additional Standing Counsel is absolutely baseless. For better appreciation the Provisions contained in Rule- 72 of the Odisha Forest Code is quoted hereinbelow:-
// 10 //
72. Posting & Transfers.
(1) The postings and transfers of officers of Indian Forest Service and Class I Officers of Orissa Forest Service within the State are made by the Government. Such transfers are ordinarily made on the recommendation of the Chief Conservator.
(2) The Chief Conservator, is empowered to transfer Class II Officers of Orissa Forest Service within the State. (3) The Chief Conservator, has full powers to transfer all members of subordinate forest service and ministerial service from one circle to another.
(4) The Conservator has full power to transfer all members of subordinate forest service and ministerial service from one division to another within the circle. (5) The Divisional Forest Officers are empowered to transfer Forester and other subordinate officers below the rank of Forester within the division.
Note-Except in exceptional cases to be recorded in writing Foresters, L. D. Clerks, Stenographers and Forest Guards should not be transferred from one division to another. Such transfers should not be for a period of more than 3 years and the incumbent should be reposted to the parent division on expiry of the terms.
(6) The Deputy Rangers/U. D. Clerks/Accountant/ Stenographers and all ministerial officers in the circle cadre should not ordinarily be transferred from one circle to another except for exceptional reasons to be recorded in writing. Such transfer should not be for a period more than 3 years and the incumbent should be reposted to the parent circle on expiry of the term.
// 11 // (7) To enable the Forest Rangers to acquire experience in all the branches of the Forest Department they should be transferred to various circles such as Afforestation, Development, Working Plan and Kendu leaf working. The Forest Ranger in a non-territorial circle should ordinarily be transferred to a territorial circle after the period of 3 years likewise a Forest Ranger who is continuously posted in a territorial circle for more than 5 years should be posted to a non-territorial or Kendu leaf circle.
Therefore, the contention raised by learned Additional Standing Counsel for the State that the provision referred to hereinabove is not applicable to the facts of Petitioners' case is something which is extraneous and by making such an attempt learned Additional Standing Counsel is trying to add words to the Rules/Code which are not there. Therefore, such contention raised by learned Additional Standing Counsel is not acceptable to this Court, accordingly the same is rejected.
17. On a careful consideration of the factual background of the present case and keeping in view the provision contained in Rule 72 of the Odisha Forest Code as well as the guidelines under Annexure-5 and the instruction of the PCCF & HoFF, Odisha- Opposite Party No.3 under Annexure-4 to the writ application, this Court is of the considered view that the Petitioners, who have been transferred beyond their parent division and as such they have completed three years are entitled to be repatriated to their parent // 12 // division. Accordingly, it is directed that the Opposite Party Nos.2 & 3 shall take necessary steps for immediate repatriation of the Petitioners to their parent division by making necessary alternative arrangement at their present place of posting within a period of six weeks from the date of communication of a copy of this judgment.
18. For the foregoing reasons and analysis the writ petition succeeds. However, there shall be no order as to cost.
(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 01st of February, 2024/ Anil.
Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 07-Feb-2024 10:25:45