Orissa High Court
Rabindra Kumar Khuntia vs State Of Orissa And Others on 12 May, 2016
Author: S.N.Prasad
Bench: S.N.Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.32453 of 2011
In the matter of application under Articles 226 and 227 of the Constitution of
India.
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Rabindra Kumar Khuntia ...... Petitioner
- Versus-
State of Odisha and others ...... Opposite Parties
For Petitioner - M/s Kamalakanta Mohanty, A.K.Das
and P.K.Khuntia
For Opp.Parties - Mr. Budhiman Rout, Standing Counsel
( School and Mass Education Department )
PRESENT:
THE HONOURABLE SHRI JUSTICE S.N.PRASAD
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Date of hearing and judgment: 12.5.2016
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S. N. Prasad, J.This writ petition is for issuance of direction upon the opposite parties:-
(i) to quash office order dated 20.9.2011(Annexure-8) so far it relates to the petitioner.
(ii) Petitioner be appointed as regular teacher as per the resolution dated 10.1.2008,
(iii) Petitioner be transferred and posted in any educational institution under Zilla Parishad Cadre of Koraput District.
2. Brief facts of the case of the petitioner is that petitioner being an application for Jeypore Circle against existing vacancy of 33 numbers of post of Sikhya Sahayak, was enlisted and engaged vide order dated 6.11.2003 in Bariguma Block in the district of Koraput under ST/SC Development Department. Engagement of Sikhya Sahayak has been questioned by some candidates by filing 2 writ petition being W.P.(C) No.11748 of 2003 which was disposed of by a coordinate Bench of this Court holding that all the engagements in pursuance to the letter dated 26.9.2003 is declared to be illegal, however, this Court has directed the State authorities to go for fresh selection and provide opportunity of being heard to the appointees who have been selected in pursuance to the letter dated 26.9.2003. Petitioner participated in pursuance to the fresh selection made by virtue of order passed in W.P.(C) No.11748 of 2003 and was selected in the same school. Petitioner after completion of six years of service was regularized as regular teacher under Zilla Parishad cadre but initially petitioner was under SC/ST Development Section.
3. It has been submitted by the petitioner that by virtue of letter dated 20.9.2011, although he has been appointed as regular teacher under ST/SC Development Section but not taken under the Zilla Parishad cadre which is contrary to the resolution dated 10.1.2008 , hence this writ petition has been filed for issuance of direction upon the School and Mass Education Department to take back his service under the Zilla Parishad cadre in pursuance to the resolution dated 10.1.2008 by quashing order of the Government dated 20.9.2011.
4. Counter affidavit has been filed on behalf of the opposite party no.2, inter alia, it has been stated that the petitioner was initially engaged as Swechasevi Sikshya Sahayak vide order No.1968 dated 6.11.2003 in Benagaon Sevashram under ST & SC Development Section of Collectorate, Koraput and he joined on 10.11.2003 in accordance with the Government in ST/SC Development Department, Odisha vide letter No.30308/SSD dated 21.6.2003.
5. Service of the petitioner was initially been struck down by virtue of the order passed by this Court in W.P.(C) No.11748 of 2003 but in course of fresh selection process he has again been selected and directed to discharge his duty at the place where he was discharging in the ST/SC Development Section of the Collectorate campus. Accordingly, petitioner has given his joining under ST/SC department. It has been stated that the petitioner was never engaged as Swechasevi Sikshya Sahayak under Zilla Parishad cadre as would be evident from letter No.30308/SSD dated 21.6.2003. It has been stated that the petitioner was allowed to continue under ST/SC Development Department of the State of Orissa vide letter No.9482/SSD dated 4.3.2005 which clarifies that the Swechasevi 3 Sikshya Sahayak those who have engaged in the non-residential Sevashramas run by the ST & ST Department will be allowed to continue as such, until further instruction of the Government and in pursuance to the same petitioner was allowed to continue in the ST & SC Department, the petitioner was continuing for a period of six years and thereafter he has been regularized as regular Teacher under ST & SC Department and grievance is being raised for cadre and placement of service under Zilla Parishad Department.
6. According to the learned counsel for the opposite party-State the writ petition is fit to be dismissed having no merit for the reason that the petitioner has been engaged as Swechasevi Sikshya Sahayak in pursuance to the letter dated 26.9.2003 and he has accepted offer of engagement for rendering his service under ST & SC Development Department. After Government decision dated 26.9.2003 has been quashed by this Court in W.P.(c) No.11748 of 2003 but however with the observation that all the candidates who have been selected in pursuance to the decision dated 26.9.2003 would be allowed chance for consideration for their engagements in case of fresh advertisement and the subsequent advertisement in pursuance to the order passed by this Court in W.P.(C) No.11748 of 2003 has come, petitioner had participated in the selection process and selected and thereafter was allowed to continue as Swechhasevi Sikshaya Sahayak at the place where he was working at the time when he was selected vide order dated 26.9.2003. Petitioner without any objection has accepted offer of engagement and not only accepted he without any protest has continued for the period of six years and thereafter has been regularized as regular teacher and after regularization, now he is challenging order of the Government as to why he has been taken under ST & SC Development Department which is being contrary to the resolution, as such he cannot be allowed to be shifted from ST & SC Development Department to the School and Mass Education department since cadre in School and Mass Education Department and the ST & SC Development Department is altogether two different departments having two different cadres and the petitioner cannot be shifted from one cadre to other cadre by way of transfer.
7. Heard learned counsel for the parties and perused the documents on record.
48. Undisputed fact in this case is that the petitioner had participated in the selection process for being engaged as Swechhasevi Sikshya Sahayak in pursuance to the letter dated 26.9.2003 and accordingly engaged and directed to discharge his duty under ST & SC Development Department. Letter dated 26.9.2003 has been challenged by some of the candidates before this Court by way of writ petition being W.P.(C) No.11748 of 2003 on the ground that one advertisement has been issued and some posts have been filled up, but remaining vacancies cannot be directed to be filled up by way of executive instruction, this Court after taking into consideration all these aspects of the matter in W.P.(C) No.11748 of 2003 has struck down Government communication dated 26.9.2003 and in consequence thereof all the engagements has been held to be illegal but directed the State authorities to go for fresh advertisement for consideration and selection of engagement of Swechhasevi Sikshya sahayak whose services have been discontinued by virtue of the order passed by this Court in W.P.(C) No.11748 of 2003.
9. Petitioner being one of the selectee in pursuance to the letter dated 26.9.2003 had participated in pursuance to the second advertisement published in terms of the order passed by this Court in W.P.(C) No.11748 of 2003 and he has been found to be successful and accordingly directed to remain in the post where he was working and the petitioner without any protest accepted offer of appointment and started discharging his duty. Petitioner has regularly worked and thereafter he has been regularized as regular teacher under the ST & SC Development Department.
10. Now grievance raised by the petitioner is that engagement of the petitioner under ST & SC Development Department is contrary to the resolution dated 10.1.2008 since Swechhasevi Sikshya Sahayak is to be appointed by the department of School and Mass Education to be made by the Zilla Parishad and since the recruiting department is the School and Mass Education Department through Zilla Parishad, hence engagement of the petitioner under ST & SC Development Department is absolutely contrary to the resolution dated 10.1.2008.
11. Learned counsel representing the School and Mass Education Department has submitted that it is not Swechhasevi Sikshya Sahayak working only in the School and Mass Education Department, rather posts of Swechhasevi 5 Sikshya Sahayak are even in the ST & SC Department and are working after making appointment by the School and Mass Education Department after taking into consideration all aspect of the matter has directed some of the successful candidates at the initial stage to remain on duties under the ST & SC Development Department so that work of the said department will function smoothly, even if School and Mass Education Department is the recruiting master through Zilla Parishad.
12. After seeing the resolution dated 10.1.2008 (Annexure-6) it is evident that power has been conferred upon the authorities under Article 243G of the Constitution of India, conferring powers to handover the elementary education to the control of Zilla Parishad and other Panchayati Raj institutions and the Zilla Parishad has been vested with power to engage Swechhasevi Sikshya Sahayak.
It is also evident from the pleadings made in the counter affidavit that Government has come out with decision as contained in letter No.30308/SSD dated 21.6.2003 addressed to the opposite party no.2 in connection with filling up the vacancies of Matric CT/IACT teachers in Non-Residential Sevashrams by Swechhasevi Sikshya Sahayaks.
It is further evident that Collector, Koraput held a meeting of District Selection Committee on 16.7.2003 requested the Project Director, DRDA-cum- Executive Officer, Zilla Parishad, Koraput letter dated 23.7.2003 to sponsor 82 names of candidates to the District Welfare Officer, Koraput for appointment in the post of Swechhasevi Sikshaya Sahayaks in different non-residential Sevashrams under Koraput district in the existing vacancies.
It further transpires that name of the present petitioner and other eligible candidates were sponsored by the Zilla Parisad to the District Welfare Officer, Koraput and accordingly the District Welfare Officer vide letter dated 1290 dated 26.7.2003 as ked the eligible candidates to attend the District Welfare Officer, Koraput on 30.7.2003 at 11.00 A.M. for verification of original documents and execution of agreement for considering their engagement. Petitioner had appeared, executed agreement on 29.10.2003 with the Collector, Koraput wherein the Collector, Koraput is the 1st party and the present petitioner is the 2nd party. Accordingly, the petitioner has joined in the said Sevashram under the ST & SC 6 Development Department. After retrenchment of service when the petitioner has again joined in pursuance to the fresh advertisement and he again been directed to work his duty at the place where he was discharging at the first place of engagement and accordingly he has joined.
13. Thus, it is specific stand in the counter affidavit that there is sanctioned post of Swechhasevi Sikshya Sahayak in the ST & SC development Department and the post is being filled up from the candidates who on requisition from Zilla Parisahd is called for interview by the District Welfare Officer and thereafter they are engaged and accordingly the petitioner has been engaged.
It is also evident that although School and Mass Education Department is the recruiting master but power has been vested upon the Collector, CEO being head of Zilla Parishad also to look into the affairs of the Sevashram schools under the ST & SC Department. Accordingly, the petitioner has accepted offer of engagement and continued and thereafter regularized in service.
14. Now the petitioner wants his cadre to be changed from ST & SC Department to the School and Mass Education Department, the same cannot be allowed on the following ground:-
(i) At the first instance petitioner has executed an agreement on 29.10.2003 with the Collector, Koraput giving his consent to render his service under ST & SC development Department, hence it is the wish of the petitioner and on the basis of his wish, he voluntarily has accepted offer of engagement.
(ii) Petitioner subsequently after being disengaged and then reengaged has again been followed direction of the Government and joined duty at the first place where he had been discharging his duty.
Thus the petitioner has been given cadre in the ST & SC Development Department and in service jurisprudence the term „cadre‟ has a definite legal connotation. It is not synonymous with service. It is open to the Government to constitute as many cadres in any particular service as it may choose according to the administrative convenience and expediency.
7Likewise here in this case Swechasevi Sikshya Sahayaks have been appointed under the School and Mass Education Department and ST & SC Development Department having two separate cadres and the petitioner right from the very beginning is working under the ST & SC Development department and now he has been regularized in the said department under its cadre having permanent lien.
(iii) Petitioner has discharged duty for six years which is the minimum qualification for being appointed as regular teacher and after completion of the said period the petitioner has been reengaged in service under the ST & SC Development Department and as such he is working/holding under the ST & SC Development Department and it is settled that when lien of post is created, same cannot be shifted to other department so far as the employee has lien and holding the post.
The meaning of word „lien‟ has been defined by Hon‟ble Apex Court in the case of Ramlal Khurana(dead)by LRS -vs- State of Punjab and others reported in (1989) 4 SCC 99 at paragraph-8 therein "lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed."
It has been held by Hon‟ble Supreme Court in the case of State of Rajasthan and another -vs- S.N.Tiwari and others, reported in (2009) 4 SCC 700 at paragraph-17 which is being reproduced hereinbelow:
"It is very well settled that when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against the latter post. Then and then alone the lien against the previous post disappears. Lien connotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends if he is appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post. It may not acquire a formal termination of lien over the previous permanent post."
Thus it is evident that the moment the petitioner has been regularized as Assistant Teacher in the ST & SC Development Department has got its own cadre having substantive post of teacher with its lien.
15. Since the petitioner is holding a post in the Department i.e. ST & SC Development Department which cadre cannot be changed to other Department i.e. 8 School and Mass Education Department that to by way of transfer. Furthermore, the petitioner has not only accepted the offer of engagement rather he has also accepted decision of the authority in regularization in service in ST & SC Development Department and after acceptance he now wants to be shifted to another Department which is not permissible for the reason stated hereinabove.
16. In view of the entirety of the facts and circumstances of the case, I find no reason to pass any positive direction in favour of the petitioner.
Accordingly, the writ petition is dismissed being devoid of merit.
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S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 12th May,2016/Palai