Orissa High Court
Smt. Phulamani Mandi vs State Of Orissa Rep. Through Its ... on 18 December, 2014
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
O.J.C. No. 8434 of 1994
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Smt. Phulamani Mandi ......... Petitioner
-versus-
State of Orissa ......... Opp. Parties
represented through its
Secretary, Orissa Khadi &
Village Industries Board, Bhubaneswar
and another
For Petitioner : M/s Dr. M.R.Panda, D.K.Pani,
Mrs.M.K.Das, M.K.Nayak,
Mrs. M. Panda.
For Opp.Parties : M/s. Jagannath Das, G.B.Das,
S.Jena, S.Das.
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 03.12.2014 | Date of judgment:18.12.2014
Dr. B.R.Sarangi, J.The petitioner has filed this application seeking to quash Annexure-8 the office order dated 27.08.1994 under which the petitioner has been posted to the D.C.I.O., Kalahandi as U.D. Asst. instead of Mayurbhanj and Annexure-13 the office order dated 11.11.1994 refusing to extend the benefit of U.D. Asst. under Rule 56 2 of the Orissa Service Code and further seeks for a direction to the opposite parties to sanction, draw and disburse the due scale of pay admissible to the post of U.D. Asst. w.e.f. 3.5.1994 with all consequential service benefits.
2. The short fact of the case in hand is that the petitioner was recruited as a Junior Assistant by the Orissa Khadi & Village Industries Board (hereinafter referred to as „the Board‟) and was promoted to the post of U.D. Assistant on recommendation of the Departmental Promotion Committee vide order dated 10.02.1994 under Annexure-1 and posted to D.C.I.O., Keonjhar. Due to family problem, she represented to the Secretary on 17.02.1994, which was forwarded by the D.C.I.O., Mayurbhanj on 18.02.1994 to the Secretary for necessary consideration. The representation of the petitioner was considered by the President and vide order dated 28.04.1994 under Annexure-4 the petitioner was posted as U.D. Assistant under DCIO, Mayurbhanj vide Smt. Sujata Sahoo, U.D. Assistant transferred on promotion. Thereafter, the petitioner submitted her joining report on 3.5.1994 as U.D. Assistant which was forwarded by the DCIO, Mayurbhanj to the Secretary vide letter dated 4.5.1994. Consequently, the petitioner was directed by the DCIO, Mayurbhanj to be in-charge of the files and records dealt by Smt. Sujata Sahoo under Memo No. 2666 (2) dated 31.08.1994. But by office order dated 27.08.1994 vide Annexure-8 in partial modification of the order dated 28.4.1994 the petitioner was posted at Kalahandi 3 as U.D. Assistant instead of Mayurbhanj until further orders with the condition that her promotion order would be cancelled in case she failed to join her new headquarters within the scheduled period. On receipt of the said order of transfer, the petitioner represented before the authority concerned along with an application for forwarding her representation to the Secretary for immediate action/consideration of such order. Since the petitioner was discharging her duty as U.D. Assistant from 3.5.1994 by order of the Board, she made representation to the Secretary for fixation of her scale of pay as UD Asst. working under establishment of DCIO, Mayurbhanj. Consequently, the petitioner who was promoted to the post of U.D. Assistant pursuant to the office order dated 28.04.1994 under Annexure-4 and discharged her duty since 3.5.1994 has been reverted back to the lower rank i.e. Junior Assistant after assuming office as U.D. Assistant for more than six months in order to accommodate Smt. Sujata Sahoo who did not accept the post of Sr. Asst. in whose place the petitioner was continued as U.D. Assistant. The petitioner‟s grievance is that though she belongs to scheduled tribe community, she has been harassed by the authority, thereby the entire action taken by the authorities is violative of Articles 14, 16(1) and 46 of the Constitution of India.
3. Mrs. M. Panda, learned counsel for the petitioner referred to Annexure-4 which reads as follows:-
4
OFFICE ORDER "Smt. Phulamani Mandi, Jr. Asst. posted as U.D. Assistant under D.C.I.O., Keonjhar on promotion is hereby posted as such under D.C.I.O., Mayurbhanj vide Smt. Sujata Sahoo, U.D. Assistant transferred on promotion."
She submitted that pursuant to the above mentioned order, the petitioner joined in the post of U.D. Assistant on 3.5.1994 at DCIO, Mayurbhanj against the post of Smt. Sujata Sahoo and continued there. But in partial modification of the order in Annexure-4 dated 28.04.1994, the petitioner was posted to DCIO, Kalahandi as U.D. Assistant instead of Mayurbhanj until further orders with a further stipulation that the promotion order will be cancelled in case she fails to join in her new headquarters within the scheduled period, against which the petitioner represented before the authorities indicating her difficulties to join in DCIO, Kalahandi, but the said representation of the petitioner was rejected. It is urged that the petitioner discharged her duty in the promotional post of U.D. Assistant and because of non-joining in DCIO, Kalahandi she cannot be reverted to the post of Junior Assistant without following due procedure of law. Therefore, such action of the authorities is arbitrary, unreasonable and contrary to Articles 14 and 16(1) of the Constitution of India.
4. Mr. S. Das, learned counsel for opposite party no.2 strenuously urged that in representation submitted by the petitioner in Annexure-9 against the order passed by the opposite party- 5 Secretary transferring the petitioner from DCIO, Mayurbhanj to DCIO, Kalahandi the petitioner has specifically stated that she has personal difficulties, therefore she is not able to join in DCIO, Kalahandi. In the event she is not allowed to continue as U.D. Assistant in the office of the DCIO, Mayurbhanj, she would have no other go but to forego the promotion post to remain as usual as Jr. Assistant under DCIO, Mayurbhanj. She having not carried out the order of transfer and foregone the promotion, she is not entitled to get the benefit claimed by her. Therefore, the authority while considering the representation was justified in passing the impugned order under Annexure-13 dated 11.11.1994. Consequence thereof, the petitioner now cannot claim that she is entitled to get the benefits of U.D. Assistant and consequential scale of pay admissible to the post from the date of her joining in the post i.e. 3.5.1994.
5. Considering the aforementioned facts pleaded and after going through the records, it appears that the petitioner had been selected by following due procedure of selection to join as Junior Assistant. While she was so continuing as Junior Assistant, the D.P.C. recommended her case for promotion to the post of U.D. Assistant and accordingly she was promoted and posted under DCIO, Keonjhar as U.D. Assistant. The petitioner represented before the authorities to allow her to continue as Sr.Asst/ U.D. Assistant in the office of the DCIO, Mayurbhanj. Considering the same, Annexure-4 dated 28.04.1994 was passed allowing her to continue as U.D. Assistant 6 under DCIO, Mayurbhanj against the post which fell vacant on Smt. Sujata Sahoo, U.D. Assistant transferred on promotion. The petitioner joined in the said post on 3.5.1994 and continued as U.D. Assistant in the office of the DCIO, Mayurbhanj. But she was again transferred to the DCIO, Kalahandi as U.D. Assistant with a condition that the promotion order will be cancelled in case she fails to join in her new headquarters within the scheduled period vide order dated 2.9.1994 under Annexure-8. Again the petitioner made representation before the authorities for allowing her to continue as U.D. Assistant/Sr.Asst. in the office of the DCIO, Mayurbhanj as before, but without considering the same the impugned order under Annexure-13 has been passed on the ground that the petitioner is not entitled to get the pay and allowances for the post of U.D. Assistant under Rule 56 of the Orissa Service Code and her joining as U.D. Assistant from 3.5.1994 is not acceptable as there was no vacancy. This contention is purely fallacious one inasmuch as from the order passed in Annexure- 4 dated 28.4.1994 it is crystal clear that the petitioner had been promoted to post of U.D. Assistant and the authorities had allowed her to join as such on promotion under DCIO, Mayurbhanj vide Smt. Sujata Sahoo, U.D. Assistant transferred on promotion. Therefore the contention raised that there was no vacancy available is only a myth and further against such vacancy the petitioner had already joined on 3.5.1994 and discharged her duty against the promotional post, though the order dated 28.4.1994 does not indicate the scale of pay 7 admissible to the post of U.D. Assistant. Therefore, once the petitioner had joined against the vacant post as U.D. Assistant, the authority cannot deny the benefits as admissible to the post of U.D. Assistant. Reference has been made to Rule-56 of the Orissa Service Code, which reads as follows:-
"56. Subject to exceptions specifically provided in these rules, a Government servant shall begin to draw the pay and allowances attached to his post w.e.f. the date on which he assumes the duties of that post and shall cease to draw them as soon as he ceases to discharge those duties."
6. The aforementioned provision states that a Government servant shall begin to draw the pay and allowances attached to the post w.e.f. the date on which he assumes the duties of that post. It appears that the petitioner has assumed the duty on 3.5.1994 pursuant to the office order vide Annexure-4, but she has not been allowed the scale of pay and allowances attached to the post w.e.f. the date of her assumption of charge. Therefore, the contention that the petitioner is not entitled to get the benefit cannot be sustained in the eye of law. Admittedly, when the promotion has been given and the incumbent has joined in the promotional post, and because of non-joining in the new assignment cannot deprive of her claim. The impugned order under Annexure-4 clearly indicates that the petitioner who was continuing as Junior Assistant was posted as U.D. Assistant under DCIO, Keonjhar on promotion and posted as such under DCIO, Mayurbhanj, meaning thereby the petitioner was holding the 8 promotional post of U.D. Assistant and discharging the same duty under DCIO, Mayurbhanj.
7. The use of word as such in the office order under Annexure-4 has its own meaning. The word „as such‟ has came up for consideration in Ramacharan Bhat v. State of U.P., AIR 1967 Allahabad 321, wherein the Court held that the word „as such‟ cannote that the service rendered must be connected with the discharge of the official duties of the other public servant. The very same word „as such‟ has also came up for consideration while interpreting Section 37
(b) of the Orissa Land Reforms Act, 1960 in Dibyasingh Malana v. State of Orissa, 1989 Supp (2) SCC 312, wherein it is held that the word as used in later part of Section 37 (b) of the Orissa Land Reforms Act, 1960 can only be interpreted to mean that it is only such son who would get the benefit of the exception who had separated by partition or otherwise before 26.09.1970 as „major married son‟ is entitled to get benefits.
8. So applying the meaning of „as such‟ to the present context the order under Annexure-4 indicates that the petitioner was promoted to the post of U.D. Assistant from Junior Assistant under DCIO, Keonjhar and was posted „as such‟ under DCIO, Mayurbhanj, which means that the petitioner was continued on promotion as U.D. Assistant under DCIO, Keonjhar and subsequently posted in the office of the DCIO, Mayurbhanj with the same post meaning thereby the U.D. Assistant. The authority passed the order under Annexure-8 9 transferring the petitioner as U.D. Assistant to the office of the DCIO, Kalahandi with a stipulation that the promotion order will stand cancelled in case she fails to join in her new headquarters within the scheduled period. Since the petitioner had already been promoted to the post of U.D. Assistant, Annexure-8 could have be considered as an order of transfer and not a promotional order. Therefore the condition stipulated therein that in the event she will not join in new place of posting her promotion would be cancelled is just to put pressure on her to join in the new place of posting. Since the petitioner discharged her duty on promotion on 3.5.1994 as U.D. Assistant, she having already been promoted vide Annexure-4, Annexure-8 can only be considered a transfer order and cannot be construed as a promotion order which has been passed to pressure the petitioner to join in the new place of posting. As a model employer, the opposite party should not have passed such order without following due procedure of law and consequently when the petitioner made a grievance that she would be allowed to continue in the office of the DCIO, Mayurbhanj, the same has been rejected vide Annexure-13 on a frivolous ground that Smt. Sujata Sahoo did not accept the promotion to the post of Sr. Asst. and was subsequently allowed to continue as U.D. Assistant vide office order dated 2.9.1994. Therefore, it is not possible to post the petitioner as U.D. Assistant in the said office. By the time Smt. Sujata Sahoo foregone her promotion to the post of Sr. Asst. and allowed to continue as U.D. Assistant vide order dated 2.9.1994, the 10 petitioner had already occupied the post as U.D. Assistant and discharged her duty. Therefore the entire order has been passed in order to show favoritism to Smt. Sujata Sahoo and cause harassment to the petitioner, who belongs to Scheduled Tribe community. Taking advantage of her innocence, the authorities have caused harassment by passing such impugned order though she was discharging her duty in the promotional post of U.D. Assistant.
9. So far as the pay and allowances claimed by the petitioner under Rule-56 of the Orissa Service Code is concerned, it is the duty of the employer to pay the admissible scale of pay of the promotional post of U.D. Assistant and allowances admissible to the post to her and non-extension of such benefit by the employer to its employee amounts to arbitrary and unreasonable exercise of power and is hit by Articles 14 and 16 of the Constitution of India. Therefore, the contention raised that the petitioner has foregone her promotion in view of the representation vide Annexure-9 as stated by learned counsel for opposite party cannot be sustained in the eye of law. It is contended by the opposite party that since the petitioner only remained incharge of Smt. Sujata Sahoo, UD Asst. who granted maternity leave from 1.9.1994 to 29.11.1994, that does not confer any right on the petitioner to claim the pay and allowances attached to the post of UD Asst. Vide Annexure-1, the petitioner was promoted as UD Asst. on the recommendation of the DPC and was posted under the DCIO, Keonjhar and vide Annexure-4 she was posted as UD Asst. 11 under DCIO, Mayurbhanj in place of Smt. Sujata Sahoo, UD Asst. transferred on promotion. Therefore, the contention raised by opposite party that the petitioner was only allowed to discharge duty in place of Smt. Sujata Sahoo due to maternity leave taken by her being bereft of records, the same cannot be accepted.
10. Considering the above facts and circumstances of the case, this Court is of the considered view that the petitioner has been arbitrarily and unreasonably deprived of her legitimate claim of the promotional post of U.D. Assistant from 3.5.1994. Therefore, the order dated 27.08.1994 vide Annexure-8 and order dated 11.11.1994 vide Annexure-13 cannot be sustained in the eye of law. Accordingly, the same are quashed. The authorities are directed to compute the benefit admissible to the petitioner in the post of U.D. Assistant w.e.f. 3.5.1994, the date she joined against such post and disburse the same to the petitioner within a period of four months from the date of communication of this order.
11. With the above observation and direction, the writ petition is allowed. No order to costs.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 18th December, 2014/Jagdev