Orissa High Court
Kantilata Naik vs State Of Odisha & Others . Opp. Parties on 22 August, 2023
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.13437 of 2023
An application under Articles 226 and 227 of the
Constitution of India.
Kantilata Naik . Petitioner
Ms. S. Patnaik, Advocate
-versus-
State of Odisha & others . Opp. Parties
Mr. I. Mohanty, A.S.C.
Ms. B.K. Pattanaik, Advocate
(For Intervenor)
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing : 14.08.2023 | Date of Judgment: 22.08.2023
______________________________________________________
A.K. Mohapatra, J. :
1. The Petitioner who is working as a Forest Guard has filed the present writ application to quash the letter dated 17.04.2023 under Annexure-1 issued by the Opposite Party No.4 thereby rejecting the representation of the Petitioner and further for a direction to the Opposite Parties to include the name of the Petitioner in the final gradation list dated 19.04.2023 issued by the Opposite Party No.4 under Annexure-13 to the writ application and further to fix the seniority of the Petitioner keeping in view the seniority of the similarly situated other candidates.
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2. The factual backdrop of the writ petition in gist is that the Petitioner was initially appointed as a Forest Guard on 17.11.2007 under the Angul Forest Division. It is pertinent to mention here that the Petitioner was appointed on being duly selected through a recruitment examination. After her selection, she was appointed asked to undergo training at the Training School in Angul. Upon completion of such training in the Forest Training College at Angul, the Petitioner joined as a Forest Guard under the Angul Forest Division. Initially, the Petitioner was appointed on contractual basis. Upon completion of a continuous service of 6 years, the Petitioner was brought over to the regular establishment in the year 2013 which is evident from the service book of the Petitioner.
3. While working as a Forest Guard under the Angul Forest Division, the petitioner submitted a representation to the Opposite Party No.2 for Inter Division Transfer from Angul to City Forest Division, Bhubaneswar. Upon due consideration of such representation the Opposite Party No.2 vide order dated 02.07.2015 transferred the Petitioner from Angul Forest Division to City Forest Division. In her transfer order dated 02.07.2015, the Opposite Party No.2 has categorically mentioned that the seniority of the Petitioner would be governed in terms of the Office Memorandum No.23849 // 3 // dated 23.11.2017. Pursuant to such transfer order under Annexure-2 the Petitioner joined in City Forest Division, Bhubaneswar on 13.07.2015 and thereafter she was posted in the Range Office at Cuttack. Since such date of joining the Petitioner has been discharging her duties to the satisfaction of the higher authorities.
4. In the writ petition it has been stated that the Opposite Party No.2 issued the circular guideline dated 23.11.2007 under Annexure-4 and the same contains guidelines for cadre management of Forest Guards. In the aforesaid circular, it has been specifically enumerated that the post of Forest Guard belongs to Divisional Cadre as per Rule 72 of the Odisha Forest Code, 1979. Further, it has been specifically stipulated in the aforesaid guideline that ordinarily Forest Guards cannot be transferred to a place beyond their division. However, under exceptional circumstances transfer is permissible on the request of the Forest Guard subject to the condition that if the Forest Guard seeking transfer beyond his/ her division, in such eventuality her seniority shall be placed at the bottom of the gradation list that is as the Junior most Forest Guard in the Transferee Division. Moreover, once the Inter Division Transfer is given effect to, the Forest Guard cannot again request for reversion to either the parent division or to any other division.
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5. In view of the specific guidelines contain in circular dated 23.11.2007 under Annexure-4, the Petitioner's Seniority after transfer was fixed as the Junior most in the cadre of the new division i.e. City Forest Division, Bhubaneswar. In such view of the matter, it has been specifically pleaded in the writ petition that the Petitioner's service was merged with the cadre of Transferee City Forest Division, Bhubaneswar and accordingly the seniority list of the City Forest Division, Bhubaneswar was re-drawn indicating the name of the Petitioner therein at the bottom i.e. at Serial No.38.
6. While this was the position, the Opposite Party No.2 issued letter dated 11.06.2020 to all DFOs of the State instructing them to relieve all the Foresters and Forest Guards who have been transferred to other Division from their parent division with a further direction to relieve the Foresters and Forest Guards to join in their parent division immediately. Being aggrieved by such decision of the Opposite Party No.2, the Petitioner filed a representation dated 15.06.2020 before the Opposite Party No.2. Since, the representation of the Petitioner was not being considered by the Opposite Party No.2, the Petitioner approached this Court earlier by filing W.P.(C) No.14505 of 2020. The said writ petition was disposed of on 20.06.2020 by a Coordinate Bench with a direction to the PCCF, Odisha (Opposite Party No.2) to consider // 5 // the representation of the Petitioner. After disposal of the writ petition the Petitioner approached the Opposite Party No.2. The Opposite Party No.2 considered the representation and rejected the same vide his order dated 21.07.2020.
7. Being aggrieved by order dated 21.07.2020 passed by the Opposite Party No.2, the Petitioner again approached this Court by filing W.P.(C) No.17797 of 2020. After hearing the learned counsels appearing for the Parties at the stage of admission, a Coordinate Bench of this Court vide order dated 13.08.2020 passed in I.A. No.8466 of 2020 directed stay of operation of order under Annexure-5 as well as Annexure-6 with a further direction to the Opposite Parties to allow the Petitioner to continue in the City Forest Division, Bhubaneswar till disposal of the writ petition. On the basis of the aforesaid interim order dated 13.08.2020, the Petitioner has been continuing as a Forest Guard in the City Forest Division, Bhubaneswar.
8. While the matter stood thus, a new rule was enacted which is known as Odisha Sub-Ordinate Forest Service (Method of Recruitment and Conditions of Service of Foresters) Amendment Rules, 2020. Under the aforesaid amended rules a draft common gradation list of Forest Guard belonging to City Forest Division, Bhubaneswar was published on 30.06.2021 and the same was // 6 // notified on 14.07.2021. It is relevant to mention here that in the said gradation list published under the Amendment Rule, 2020, the name of the Petitioner finds place at Serial No.37. While reflecting the date of appointment as 19.11.2007 in the aforesaid gradation list, in the remarks column it was indicated that the seniority of the Petitioner is subject to the result of the W.P.(C) No.17797 of 2020.
9. Thereafter, another draft common gradation list of Forest Guard, Bhubaneswar Circle was published on 31.08.2021. In the said gradation list the Petitioner's name finds place at Serial No.303. Since, the name of the Petitioner was kept much below in the common gradation list the Petitioner filed a representation before the Opposite Parties for reconsideration. Thereafter, another revised final common gradation list of Forest Guards belonging to City Forest Division, Bhubaneswar was published on 01.10.2021. In the said list, the seniority of one Shri Prasanna Kumar Rout, Smt. Manini Mishra and Smt. Madhusmita Mohanty has been fixed in the revised final gradation list from the date of their appointment as Forest Guard.
10. It has been stated in the writ petition that the above named three persons are similarly placed with the petitioner that is they have been transferred from their parent division to City Forest Division, Bhubaneswar. It has also been stated that the seniority of // 7 // the aforesaid persons has been maintained as per Rule 12(3) of the Amendment Rules, 2020. However, the Petitioner was really shocked to learn that her name has been deleted from the aforesaid revised final common gradation list.
11. During the pendency of the above noted W.P.(C) No.l7797 of 2020, another final common gradation list of Forest Guard of Bhubaneswar circle was published on 01.03.2023 by the Opposite Party No.4. In the said final common gradation list also the name of the Petitioner does not find place. The aforesaid list was communicated vide letter dated 20.03.2023 by the Opposite Party No.4 to the Opposite Party No.3. Although, the Petitioner submitted her objection to the above noted final gradation list on 24.03.2023, the Opposite Party No.4 has been sitting over the matter without taking a final decision on the objection of the Petitioner.
12. Challenging the inaction of the Opposite Party No.4, the Petitioner again approached this Court by filing W.P.(C) No.10615 of 2023. This Court again disposed of the writ application by directing the Opposite Party No.4 to consider the representation of the Petitioner within six weeks. Further, while disposing of the writ petition filed by the Petitioner this Court also directed that the gradation list under Annexure-1 shall not be acted upon for a period of six weeks.
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13. After disposal of the above noted writ petition, the Petitioner again approached the Opposite Party No.4. The Opposite Party No.4 issued office order dated 17.04.2023 rejecting the representation of the Petitioner. Thereafter, the Opposite Party No.4 issued the final common gradation list of Forest Guard, Bhubaneswar (T) Circle dated 19.04.2023 excluding the name of the Petitioner.
14. A counter affidavit has been filed on behalf of the State- Opposite Parties. In the counter affidavit it has been stated on behalf of the Opposite Parties that in compliance to this Court's order, the Opposite Parties have considered the representation of the Petitioner and upon such consideration the representation filed by the Petitioner has been rejected by a speaking order and relying upon the clarification issued by the office of the PCCF, Odisha vide circular dated 11.11.2021. Accordingly, it was submitted that in view of the Rule 12(3) of the Rules, 2020 the seniority of the Petitioner is to be maintained in her parent cadre.
15. Additionally, it has been stated in the counter affidavit that the Petitioner was originally appointed in the Angul Forest Division and thereafter she was transferred to City Forest Division, Bhubaneswar vide letter dated 02.07.2015 on her own request with certain conditions with regard to her seniority. Knowing fully well // 9 // such conditions, the Petitioner had joined in the City Forest Division, Bhubaneswar. Further, it has been stated that till 2020 the Seniority of the Petitioner was being regulated in the City Forest Division as per memo dated 23.11.2007 and accordingly her name appeared in the final gradation list dated 01.01.2020 at Serial No.38, that is, after taking into consideration her date of joining.
16. Further, it has been specifically averred in the counter affidavit that the seniority of the Petitioner was being maintained as per circular dated 23.11.2007 as the Junior most Forest Guard in City Forest Division, taking into consideration her date of joining on 13.07.2015. However, after the circular dated 23.11.2007 was superseded by memo No.11447 dated 11.06.2020 of the PCCF, Odisha, the Petitioner was reverted to her parent division vide memo dated 24.06.2020 of the DFO, City Division. In the meantime, the Cadre Management Circular on transfer policy of the Forest Guards has been withdrawn by the PCCF, Odisha vide his order dated 07.08.2020. Although, it has been stated in the counter affidavit that pursuant to the interim order passed in W.P.(C) No.17797 of 2020, the Petitioner is continuing in Bhubaneswar City Forest Division till date. It has also been stated that the inclusion of the Petitioner's name in the tentative gradation list // 10 // published on 14.07.2021 was purely tentative in nature and thus the same does not confer any right on the Petitioner.
17. The counter affidavit further reveals that the final gradation list of Forest Guards was published on 07.10.2021, wherein the name of the Petitioner was placed at Serial No.302 basing on her date of joining in City Division on 13.07.2015. Such placement in the gradation list is in accordance with the circular dated 23.11.2007 of the PCCF, Odisha. However, pursuant to the clarification from the PCCF, Odisha vide memo dated 28.09.2021 and clarification dated 11.11.2021 a Revised final common gradation list of Forest Guards belonging to Bhubaneswar (T) Circle as on 01.10.2021 was published. On 12.11.2021 such list was communicated excluding the name of the Petitioner as he was not absorbed in City Forest Division, Bhubaneswar. So far, the seniority of the other three named persons are concerned, the same were fixed in the revised final gradation list as per their date of appointment as Forest Guard treating City Forest Division as their parent division following the clarification dated 11.11.2021.
18. Additionally, it has also been contended in the Counter affidavit that basing upon the revised final common gradation list of Forest Guards dated 12.11.2021, three numbers of DPCs have been convened in the meantime and a total of 42 numbers of Forest // 11 // Guards have been promoted to the rank of Foresters including the above named three persons. Therefore, it is stated in the Counter affidavit that the case of the Petitioner cannot be equated with the case of the above named three persons. Moreover, the Petitioner has been transferred to her parent division i.e. Angul Forest Division vide memo dated 11.06.2020 in supersession of her transfer order dated 02.07.2015.
19. The order dated 24.06.2020 has been challenged by the Petitioner by filing W.P.(C) No.17797 of 2020 and pursuant to the interim order passed therein by this Court, the Petitioner has been allowed to continue in City Forest Division, Bhubaneswar. Thus, it was argued by learned Additional Standing Counsel that the rejection of the Petitioner's representation is not illegal and arbitrary. He further contended that the Petitioner has been reverted to her parent division in accordance with Rule 12(3) of the Amendment Rules, 2020 and that although she was relieved from the City Division, however, pursuant to the interim order passed by this Court in the other writ application, the Petitioner has been allowed to continue in service till date.
20. Heard Ms. Soma Pattnaik, learned counsel appearing for the Petitioner, Mr. I. Mohanty, learned Additional Standing Counsel for the State-Opposite Parties and Ms. B.K. Pattnaik, // 12 // learned counsel appearing for the Interveners. Perused the pleadings of the respective parties as well as the materials on record.
21. Having heard the learned counsels appearing for the respective parties, this Court observed that the Petitioner has been continuing in service as a Forest Guard in the City Forest Division, Bhubaneswar pursuant to the interim order passed by a Coordinate Bench of this Court in W.P.(C) No.17797 of 2020. Such fact has been admitted by all the appearing parties. With regard to joining of the Petitioner, the factual position is also admitted by the appearing parties, that is, the Petitioner was initially appointed under the Angul Forest Division as Forest Guard on 23.11.2007. Thereafter, on the request of the Petitioner, she was transferred beyond her division to the City Forest Division, Bhubaneswar vide order dated 02.07.2015.
22. It is also not disputed by the parties that the transfer of the Petitioner is an Inter Divisional Transfer pursuant to the circular dated 23.11.2007 under Annexure-4 to the writ application. On a careful reading of the circular under Annexure-4, this Court observed that in Clause-3 of the circular Inter Divisional Transfer of Forest Guards on own request are permissible in exceptional cases. However, such transfer shall be subject to the condition that in the transferee division the transferred Forest Guard shall be the // 13 // Junior most and he/she shall be kept under the existing Forest Guards in the transferee division. Further, under Clause-4 the Forest Guards are required to furnish an undertaking to the effect that they shall not claim seniority on such Inter Divisional Transfer in the Transferee Division and further once the Inter Divisional Transfer is effected, he/ she shall not again request for reversion to neither the parent division nor transfer to any other division.
23. On a careful analysis of the language employed in the Circular dated 23.11.2007 under Annexure-4, this Court is of the view that Inter Divisional Transfer is permissible and once the same takes effect, the person under transfer shall merge in the transferee division, however he/ she shall loose his/ her seniority and shall be placed below the existing Forest Guards and once such Inter Divisional Transfer is given effect to, the Forest Guard concerned, cannot be reverted back to the parent division. In such view of the matter, this Court has absolutely no doubt that the Petitioner has been automatically absorbed in the City Forest Division, Bhubaneswar, after she was transferred from the Angul Forest Division vide order dated 02.07.2015 under Annexure-3 to the writ application. Moreover, the office order under Annexure-3 clearly reveals that the Seniority shall be regulated vide office memo dated 23.11.2007.
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24. Learned Additional Standing Counsel in course of his argument took a stand that since the Petitioner was not absorbed in service of the City Forest Division, Bhubaneswar, she cannot claim as a regular employee of the City Forest Division, Bhubaneswar and therefore she has no right to claim for inclusion of her name in the gradation list of the City Forest Division, Bhubaneswar. He further contended that the three persons named by the Petitioner, were absorbed as Forest Guards in the City Forest Division before finalization of the gradation list. Since, the Petitioner was not absorbed, the Opposite Parties have rightly vide their memo dated 11.11.2021 under Annexure-A/4 have taken a decision that the seniority of the Petitioner shall be fixed in terms of Rule 12(3) of the Rules, 2020 as they were not absorbed in City Forest Division.
25. Learned Additional Standing Counsel further referring to letter dated 24.06.2020 under Annexure-E/4 contended that the petitioner was repatriated to her parent division as she was not absorbed in the City Forest Division, Bhubaneswar. Laying emphasis on office order dated 07.08.2020 under Annexure-F/4, learned Additional Standing Counsel further contended before this Court that the executive instruction vide memo No.23849 dated 23.11.2007 has been withdrawn by order of the PCCF, Odisha dated 07.08.2020. Therefore, the Petitioner has no right to continue // 15 // in the City Forest Division and accordingly her name cannot be included in the final gradation list of the City Forest Division, Bhubaneswar.
26. On a careful analysis of the aforesaid documents referred to by the learned Additional Standing Counsel, this Court is of the considered view that the order of repatriation was passed on 24.06.2020. Therefore, by then the circular dated 23.11.2007 permitting Inter Divisional Transfer was still in force and staring at the DFO, City Forest Division, Bhubaneswar. Therefore, the DFO- Opposite Party No.3 was bound by the circular dated 23.11.2007. As such he could not have passed order dated 24.06.2020 under Annexure-E/4 to the counter affidavit. Although, the circular dated 23.11.2007 was withdrawn subsequently such subsequent withdrawal cannot ipso-facto validate an order which was passed prior to such withdrawal by the Opposite Party No.3 on 24.06.2020 repatriating the Petitioner to Angul Forest Division. Moreover, this Court observed and it is also an admitted fact that the Petitioner is continuing in service by virtue of the interim order passed by this Court. Since, validity of order dated 24.06.2020 is sub-judice before this Court in another writ application bearing W.P.(C) No.17797 of 2020, this Court refrains from making any observation in that regard.
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27. On a careful consideration of the factual background of the present case as well as keeping in view the settled principles of law, this Court deems it proper to protect the Petitioner till a final decision is taken by this Court in W.P.(C) No.17797 of 2020, otherwise the fate of the Petitioner would remain hanging in a limbo. Therefore, in the large interest of justice, this Court directs the Opposite Parties to include the name of the Petitioner provisionally in the final gradation list by ascertaining her position in the gradation list strictly in the light of the circular dated 23.11.2007 under Annexure-4 to the writ application. Accordingly, a revised gradation list be published indicating the name of the Petitioner in such gradation list of the City Forest Division, Bhubaneswar. Moreover, it is indicated that such inclusion of name of the Petitioner shall be subject the final outcome of W.P.(C) No.17797 of 2020. Let the aforesaid exercised be carried out within a period of six weeks from the date of communication of a copy of this judgment. In view of the aforesaid direction the letter dated 17.04.2023 issued by the Opposite Party No.4 is hereby quashed with a further direction to prepare a final gradation list by revising the gradation list dated 19.04.2023 under Annexure-13 in the manner as has been directed hereinabove.
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28. Accordingly, the writ application is allowed in the light of the observations made hereinabove. However, there shall be no order as to cost.
(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 22nd August, 2023/ Anil.
Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO
Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Aug-2023 19:18:18