Orissa High Court
Sri Bijaya Kumar Bhumij vs State Of Odisha Represented Through The ... on 18 January, 2018
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA:CUTTACK
W.P. (C) No.19029 of 2013
In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950.
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Sri Bijaya Kumar Bhumij ......... Petitioner
Versus
State of Odisha, represented through
the Secretary to Government,
Law Department and others ......... Opposite Parties
For Petitioner : M/s.Sameer Kumar Das,
S.K.Mishra
For Opp. Parties : Mr.Amit Kumar Pattanaik
Additional Government Advocate
.........
PRESENT:
THE HON'BLE MR. JUSTICE B.K.NAYAK
AND
THE HON'LE DR. JUSTICE D.P.CHOUDHURY
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Date of argument:25.11.2017 Date of judgment:18.01.2018
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Dr. D.P.Choudhury, J. This writ petition has been filed challenging the
action of the learned District Judge, Sambalpur, opposite party no.2 in
rejecting the representation of the petitioner vide his order dated
13.06.2013(Annexure-14) for his retention in the judgeship of Sambalpur.
2. FACTS The adumbrated facts leading to the case of the petitioner, in the writ petition, is that the petitioner was initially appointed as Junior Stenographer in the undivided judgeship of Sambalpur after being duly selected and was promoted to the post of Senior Stenographer and -2- posted at Bargarh District due to bifurcation of Bargarh district where he exercised his option to remain in mother district of Sambalpur. Considering the option of the petitioner, he was directed to continue in the judgeship of Bargarh for which he approached this Court by filing W.P.(C) No.22366 of 2011. This Court, vide its order dated 14.09.2011, disposed of the said writ petition directing the learned District Judge, Samblpur, opposite party no.2 to consider the representation of the petitioner and pass appropriate order. In compliance of the order dated 14.09.2011, the opposite party no.2 passed an order directing the petitioner to join in the mother judgeship of Sambalpur by giving him posting at Deogarh. When again Deogarh judgeship was separated, the option was called for and the petitioner exercised his option for his transfer to the mother judgeship of Sambalpur. Learned District Judge, Sambalpur, opposite party no.2 directed the petitioner to continue at Deogarh for which he had again approached this Court by filing W.P.(C) No.11051 of 2013 wherein this Court directed the opposite party no.2 to consider the grievance of the petitioner and take a decision.
3. Be it stated that the learned District Judge, Sambalpur rejected the representation of the petitioner vide order dated 13.06.2013, which is challenged in this writ petition with a further prayer to allow the petitioner to continue in the mother judgeship of Sambalpur.
4. SUBMISSIONS Mr.Das, learned counsel for the petitioner submitted that after the representation of the petitioner being considered to be retained -3- in the mother judgeship of Sambalpur at the time of bifurcation of Sambalpur and Bargarh judgeship, the same was rejected. But by the intervention of this Court vide W.P.(C) No.22366 of 2011, he was posted at Deogarh in the judgeship of Sambalpur. When the Deogarh judgeship was separated from Sambalpur judgeship, option was called for and the petitioner gave his option to continue in the judgeship of Sambalpur as he has got degree from Sambalpur University and would be more affected if at all he is not brought from Deogarh.
5. Mr.Das, learned counsel for the petitioner further submitted that "bottom-up principle" has not been followed in this case for the reasons that the option of the petitioner was ignored without any reason whereas other staff, namely, Sri K.T.Patra was accommodated at Sambalpur and also some other staff have been accommodated at Sambalpur. He further contended that one Sri Jagatram Pradhan, who belongs to ST category, was adjusted at Deogarh judgeship as per his option and one sanctioned ST post of Senior Stenographer is available at Sambalpur. Therefore, the posting of the petitioner in Deogarh judgeship is in violation of Orissa Reservation of Vacancies in Post and Services (For Scheduled Castes and Scheduled Tribes) Act, 1975 and the Rules (in short "the Act and the Rules"). He further stated that the petitioner has ascertained under Right to Information Act, 2005 that two posts of ST candidates are available at Sambalpur judgeship and out of that two posts, one post is filled up by a ST candidate and another post is filled up by a general candidate. Since the posting has been made -4- against the reservation rule, the deployment of the petitioner at Deogarh judgeship also violates the "bottom-up principle".
6. Mr.Pattanaik, learned Additional Government Advocate submitted that due to "bottom-up principle" as laid down in Clasue-2.6 of the Office Memorandum dated 13.12.1996 issued by the General Administration Department of Government of Orissa, the representation of the petitioner was rejected vide impugned order dated 13.06.2013. According to him, prior to bifurcation of the judgeship of Sambalpur- Deogarh, total sanctioned strength of Senior Stenographer was 11, but after bifurcation, it was reduced to 8. As per the bottom-up principle, Sri Jagatram Pradhan, Senior Stenographer who opted to continue at newly created judgeship of Deogarh, was adjusted there and Sri Narayan Mishra and the present petitioner being at bottom most employees in the cadre of Senior Stenographer were posted there. Since Sri K.T. Patra was at the top of the Junior Stenographer cadre, his deployment to the Deogarh judgeship was not made but was posted in the judgeship of Sambalpur due to "bottom-up principle" and Sri Patra was never given the benefit of Senior Stenographer.
7. Mr.Pattanaik, learned Additional Government Advocate further submitted that the deployment of the petitioner at Deogarh was due to the deployment procedure being followed and he was neither forced to stay there nor his posting there is illegal. Moreover, there is dearth of Stenographers in two senior Courts at Deogarh. The bottom- up principle said that as far as possible, the deployment would be made. -5- So, there is no illegality in deploying the petitioner in the judgeship of Deogarh.
8. Mr.Pattanaik, learned Additional Government Advocate further contended that the deployment of the petitioner at Deogarh has violated the ORV Act and Rules is a misnomer because the bottom-up principle as enumerated in the Office Memorandum of the General Administration Department, as stated above, does not state that deployment would be made in accordance with ORV Act and Rules as applicable to the newly recruited employees. In the writ petition, such plea has not been taken whereas in the rejoinder, which is not part of the writ petition, such plea has been taken for which such contention has no merit.
9. POINT FOR DETERMINATION The main point for consideration is whether the deployment of the petitioner at Deogarh judgeship is illegal and improper?
10. DISCUSSIONS It is not in dispute that the petitioner was initially appointed as a Junior Stenographer in the undivided judgeship of Sambalpur and subsequently promoted to the post of Senior Stenographer being posted in the same undivided judgeship of Sambalpur. It is admitted fact that at the time of bifurcation from the mother judgeship of Sambalpur, the petitioner opted for his retention in the judgeship of Sambalpur and due to the intervention of this Court in W.P.(C) No.22366 of 2011, his representation was allowed for his deployment at Sambalpur judgeship. It is also not in dispute that after his deployment in the undivided -6- judgeship of Sambalpur at that point of time, he was posted at Deogarh as Senior Stenographer. It is also admitted fact that Deogarh judgeship was separated from Sambalpur judgeship later on and the options were called for and the petitioner has given his option for his retention in the divided mother judgeship of Sambalpur.
11. Mr.Das, learned counsel for the petitioner submitted that the bottom up principle is not followed when the judgeship of Deogarh was newly created whereas learned Additional Government Advocate stated that such principle has been followed. The bottom up principle, as per Office Memorandum of the G.A. Department, is placed in the following manner:
"No.31775-SC/6-73/96-Gen. GOVERNMENT OF ORISSA GENERAL ADMINISTRATION DEPARTMENT OFFICE MEMORANDUM The 13th December, 1996 Subject- Guidelines for re-deployment of surplus staff of mother district to the newly created districts on re-organization.
Xx xx xx xx
2. To overcome this difficulty and after careful consideration, the Government in General Administration Department have been pleased to decided that the following principles shall be followed for deployment of the staff rendered surplus in the mother district.
2.1 Action for re-deployment of employees borne in the cadre of mother district shall be taken by the respective district cadre controlling authorities of the mother district. 2.2 The cases of the employees, who have already been assigned to the newly created district and have joined there before the issue of these Guidelines need not be re-opened. This is, however, subject to any order or direction that may have been received from a Court or Tribunal on the subject. 2.3 Employees borne in the cadre of the mother district, except those covered by para 2.2, may be asked to submit their order of preference for continuing in the cadre of the mother district or for assignment to the cadres of the districts carved out of the mother district. Those who fail to submit their preference may be presumed to have opted for the mother district only.
2.4. As far as practicable and subject to the vacancies available in the relevant grades the assignment of the employees to the -7- cadre of the mother district or the cadres of the newly created districts may be made on the basis of the position in the gradation list of the original district cadre taking into account their preferences. To illustrate, if there are 15 vacancies in a cadre in a district and 30 employees have given their first preference for the district, the senior-most 15 employees of the 30 will be allotted to the district. Having exhausted the first preference, the second and subsequent preferences may be acted upon in that order.
2.5 For splitting the sanctioned posts of the undivided district instruction issued to the district offices by the Government in the respect Administrative Departments shall be followed.
2.6. If all the vacant posts in a cadre of the districts, carved out of the mother district, cannot be filled upon on the basis of the preferences as above, the posts shall be filled up by the following the "bottom up" principles subject to the following exceptions:-
(i) The widow or any other female member of the family of a deceased or disabled Government Servant who has been appointed under the rehabilitation assistance scheme may be allowed to continue in the mother district unless she pre prefers to be assigned to some other district carved out of the mother district.
(ii) An employee who had come on transfer to the cadre of the mother district from another district by forgoing his/her seniority in pursuance of General Administration Notification No.28949, dated the 15th July, 1992 and Resolution No.18380, dated 26th August 1993 may be allowed to continue in the cadre of mother district unless he/she prefers to be assigned to some other district carved out of the mother district.
(iii) The employees, whose son/daughter is/are already enrolled in a school for blind, deaf, dumb or mentally retarded, may be allowed to continue in the cadre of mother district, if similar instructions are not available in the other newly created districts. The proof of admission and continuance of studies of their children in such institutions shall be produced by the employees for the satisfaction of the cadre controlling authority.
Xx xx xx xx"
From a perusal of the aforesaid "bottom-up principle" of the General Administration Department, it appears that there is clause 2.4 where it is specifically stated that as far as practicable and subject to the vacancies available in the relevant grades the assignment of the employees to the cadre of the mother district would be available. It is enshrined therein that the bottom-up employees would be deployed to -8- the newly created districts but this principle is subject to exception as enumerated in Clause 2.6 of the aforesaid Office Memorandum of the General Administration Department. It further appears that the competent authority has been entrusted with the duty to follow the instruction and as it appears that it is directory one but not mandatory because the principles as far as possible to be maintained.
12. As per the gradation list of Senior Stenographers under Annexure-1, the name of the petitioner finds place at the bottom while he was posted at Bargarh. In the gradation list of Stenographers for the judgeship of Sambalpur-Deogarh for the year 2012 vide Annexure-8, the name of the petitioner finds place at bottom in the cadre of Senior Stenographers. The name of Sri K.T.Patro is at the top in the cadre of Junior Stenographers. This was published on 16.01.2013 and the option was called for on 01.02.2013. On 05.02.2013 vide Annexure-10, the petitioner gave his representation mentioning therein that he has got old parents and a five year baby with his wife at Sambalpur. Since he has got family at Sambalpur and not able to take care, he opted to be retained in the mother judgeship of Sambalpur. Annexure-12 shows that in creation of new judgeship of Deogarh on 20.04.2013, on 17.04.2013 the staff were deployed and the name of the petitioner finds place at serial no.41. Of course, nothing was available from Annexure-12 why his option was not considered. But it appears from the entire order that the deployment list does not show whose options have been considered and whose options have been rejected. It is required for every administrative order to be preceded with reasons. In absence of reason, the order -9- becomes non-speaking. No doubt, the representation was made by the petitioner to reconsider his option, which was disposed of by the learned District Judge, Sambalpur vide Annexure-14 on 13.06.2013.
13. It appears from Annexure-14 that the learned District Judge, Sambalpur disposed of the representation mainly on the ground that as per bottom-up principle, the petitioner is placed at the lowest in the cadre of Senior Stenographers requiring his transfer to Deogarh and the ground of his retention in the Sambalpur judgeship is not convincing. Further, the order shows that Deogarh judgeship was with dearth of employees in the cadre of stenographers. It appears that the order of rejection is self-explanatory and is annexed to the order of deployment of petitioner at Deogarh judgeship.
14. As per Clause 2.4 of bottom-up principle of the G.A. Department read with Clause 2.6, there is no such contingencies of the petitioner for his retention in the divided judgeship of Sambalpur because he is at the bottom of the new cadre of Senior Stenographer and the learned District Judge, Samablpur being the competent authority considered the option as far as possible. His case is not coming within the exception as per the ground maintained at Clause 2.6 of the bottom-up principle of G.A. Department.
15. It is needless to mention that in first bifurcation between Sambalpur and Bargarh districts, the option of the petitioner has been duly considered and he was posted at Deogarh under the judgeship of Sambalpur which he has accepted and he worked there since 2011. Had there not been separate judgeship at Deogarh he had no occasion to
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make option for his deployment to Samablpur. So far as the second option of the petitioner to be retained at Sambalpur judgeship, the same appears to have no basis. So, the deployment of the petitioner at Deogarh is legal and proper.
16. CONCLUSION In terms of the above discussion, we are of the view that as per the bottom-up principle of the G.A. Department, the deployment of the petitioner at Deogarh judgeship was made for which the same cannot be interfered with. However, learned counsel for the petitioner has urged about violation of the ORV Act and the Rules which needs little attention of the Court. First of all, such ground of violation of the ORV Act and the Rules has not been pleaded in the writ petition but it is only pleaded in the rejoinder. It must be remembered that rejoinder is filed to explain the counter affidavit filed by the opposite parties.
17. If the petitioner desires to add pleadings, he could have amended the writ petition but not did so. In the counter affidavit, there is no whisper of any observance of the ORV Act and Rules while bottom- up principle is followed. Also the General Administration Department's Office Memorandum of 1996 never speaks about observance of the ORV Act and Rules while deployment is made at the time of creation of new judgeship. It is only available from the amendment to such Office Memorandum of 1997 that while separation of district would be made, necessary SC, ST and SEBC posts should be looked into in both districts. It has no bearing with the case of the petitioner. Therefore, the argument of the learned counsel for the petitioner about non-
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observance of the ORV Act and Rules is untenable and the same is quashed.
In view of the aforesaid analysis, we are of the view that the writ petition sans merit and as such, the same stands dismissed.
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Dr.D.P.Choudhury,J.
B.K.Nayak, J I agree.
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B.K.Nayak,J.
Orissa High Court, Cuttack
Dated the 18th Jan,2018/Nayak