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2002 DIGILAW 618 (ORI)

Padmabati Rout v. State of Orissa

2002-09-24

PRADIP MOHANTY, R.K.PATRA

body2002
JUDGMENT R. K. PATRA, J. — This batch of writ petitions consists of three sets of Government employees, namely, Pharmacists, Staff Nurses and Multi Purpose Health Workers (Female). Their common case is that the posts held by them were initially State cadre posts. The State Government in September, 1998 declared them as District cadre posts. Options were called for by the Director, Health Services from them as to which district they wanted to be allotted. After the options were exercised, provisional lists for different categories of employees were published inviting objections. Without finalising it, orders were passed transfer¬ring them to different districts to which they had not opted. Being aggrieved by such orders, they filed separate applications before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack. By a common order dated 12.8.2002, the learned Member (Judicial) dismissed all the applications holding that the deci¬sion of the Government treating the posts in question as district cadre posts is a policy matter and, as such, he has no jurisdic¬tion to interfere with the same. He also recorded a finding that the entire exercise of the Government in inviting options from the concerned employees is “provisional and the same is executed for the interest of all and therefore he has no jurisdiction to interfere with the same”. 2. Learned counsel for the petitioners contended that the learned Member (Judicial) having found that the decision of the State Government declaring the posts of Pharmacists, Staff Nurses and Multi Purpose Health Workers (Female) as district cadre posts is a policy matter, he should not have disposed of the matters at his end and he ought to have referred/transferred the cases to the Chairperson for disposal by a Division Bench in view of the proviso contained in Sub-section (6) of Section 5 of the Administrative Tribunals Act, 1985 (hereinafter referred to as ‘the Act’). In this connection, they relied on the judgment of the Supreme Court in L. Chandra Kumar v. Union of India, AIR 1997 SC 1125 . In paragraph 98 of the judgment their Lordships observed as follows : “........ In this connection, they relied on the judgment of the Supreme Court in L. Chandra Kumar v. Union of India, AIR 1997 SC 1125 . In paragraph 98 of the judgment their Lordships observed as follows : “........ We wish to make it clear that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of the Single Member Bench of the Administrative Tribunal, the proviso to Section 5 (6) will automatically apply and the Chairman or the Members concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a Single Member Bench or a bench which does not consist of a Judi¬cial Member. So construed, Section 5 (6) will no longer be sus¬ceptible to charges of unconstitutionality.” Counsel for the petitioners in support of their case also pressed into service the recent judgment of the Supreme Court in State of Madhya Pradesh v. B.R.Thakare, AIR 2002 SC 2431 . Counsel for parties brought to our notice the office order No. 4551/OAT dated 3.5.1999 issued by the Chairman of Orissa Administrative Tribu¬nal, Bhubaneswar authorising two members of the Cuttack Bench to function as a Bench consisting of Single Member and to exercise jurisdiction, power or authority of the Tribunal in respect of cases or class of cases specified therein. At that time Cuttack Bench had two members and at present there is only one Member (Judicial). Another office order No. 2166/OAT dated 2.4.2002 made by the Chairperson of the Orissa Administrative Tribunal, Bhuba¬neswar was also brought to our notice. This shows that the Chair¬person in exercise of powers conferred by Sub-section (6) of Section 5 of the Act has authorised the present Member (Judicial) of Cuttack Bench to exercise all powers of two-member Bench until further orders. 3. This shows that the Chair¬person in exercise of powers conferred by Sub-section (6) of Section 5 of the Act has authorised the present Member (Judicial) of Cuttack Bench to exercise all powers of two-member Bench until further orders. 3. No doubt by virtue of the aforesaid office order No. 2166/OAT dated 2.4.2002 the learned Member (Judicial) of Cuttack Bench is competent to exercise all powers of the two-member Bench, but the question is whether in the facts and circumstances he ought not to have referred the cases to the Chairperson to be heard by a Bench consisting of two-members in view of the proviso contained to Sub-section (6) of Section 5 of the Act which lays down that if at any stage of the hearing of any such case or matter it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two members, the case or matter may be transferred by the Chairman or, as the case may be, referred to him for transfer to such Bench as the Chairman may deem fit. 4. As noted above, the learned Member while passing the impugned order found the decision of the State Government declaring the three posts in question as district cadre posts is a policy matter. Naturally, the dispute is of such a nature that certain provisions of the Constitution may fall for considera¬tion. Besides this, it is brought to our notice that some of the employees have filed similar applications before the Principal Bench at Bhubaneswar which are being dealt with by a Division Bench. Therefore, to avoid difference of opinion on the same point, judicial propriety requires that all cases should be heard by a larger Bench. It is well known that consistency in interpretation of law would inspire public confidence in the judicial system. 5. For the reasons aforesaid, we have no hesitation to hold that the learned Member (Judicial) ought not to have finally disposed of the cases at his end. As a consequence, we set aside the impugned order dated 12.8.2002 and direct him to transfer all such cases on his file to the file of the learned Chairperson for getting them heard and disposed of by a Division Bench. As a consequence, we set aside the impugned order dated 12.8.2002 and direct him to transfer all such cases on his file to the file of the learned Chairperson for getting them heard and disposed of by a Division Bench. Till all the matters are finally disposed of, the interim order passed by this Court in such cases shall remain operative. Before parting with the case, we may say that if still any case is pending on the file of the learned Member (Judicial), Cuttack Bench concerning the dispute of the present nature or if any such case is filed in future, he would instead of entertaining them transfer the same to the file of the learned Chairperson for disposal of the same according to law. The writ petitions are allowed. No costs. PRADIP MOHANTY, J. I agree. Petitions allowed.