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2008 DIGILAW 650 (ORI)

JITENDRA KUMAR DAS v. UNION OF INDIA

2008-08-05

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT : L. Mohapatra, J. - The Petitioner in this writ application assails the legality of the order dated 31 st May 2007 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 130 of 2007 dismissing the same. 2. Case of the Petitioner is that pursuant to an advertisement published by the Staff Selection Commission for the post of Lower Division Clerk, he submitted his application and having been selected through a selection process, he was appointed and posted in the State office of the National Commission for Scheduled Castes and Scheduled Tribes. On 5th December 1984, the Petitioner joined -as L.D.C. in the said organization in its State office. He was promoted to the post of U.D.C. in the year 1992 and, thereafter again promoted to the post of Superintendent in the year 2005 and was posted at Bhubaneswar. The Government of India on 1.12.2004 issued an office order bifurcating the National Commission for Scheduled Castes and Scheduled Tribes into two separate Commissions i.e. National Commission for Scheduled Castes (NCSC) and National Commission for Scheduled Tribes (NCST). The bifurcation was given effect from 19.2.2004 and pursuant to said bifurcation, the officers and staff of the erstwhile National Commission for SCs and STs were divided between both the Commissions and it was decided that the officers and staff other than those belonging to the joint cadre and posted to headquarters of 18 States offices were to be divided between two Commissions and the Petitioner was brought into NCST. According to the Petitioner, on and from 19.2.2004 he became an employee of NCST. On 19.3.2007 the National Commission for STs passed an office order transferring the Petitioner from its Bhubaneswar office to office of the National Commission for Scheduled Castes State office at Chennai and in his place, opposite party No. 6 was posted in the State office of NCST at Bhubaneswar. Challenging the said order of transfer, the Petitioner approached the Central Administrative Tribunal, Cuttack Bench, Cuttack in the aforesaid original application. The Petitioner challenged the order of transfer before the Tribunal on the ground that he being an employee under NCST, could not have transferred to NCSC office at Chennai. Before the Tribunal, the department did not file any counter affidavit but the present opposite party No. 6 filed a preliminary counter affidavit. The Petitioner challenged the order of transfer before the Tribunal on the ground that he being an employee under NCST, could not have transferred to NCSC office at Chennai. Before the Tribunal, the department did not file any counter affidavit but the present opposite party No. 6 filed a preliminary counter affidavit. On consideration of the different documents attached to the O.A. as well as the counter affidavit filed by opposite party No. 6, the Tribunal came to a conclusion that though there had been a division of the National Commission for Scheduled Castes and Scheduled Tribes the administrative control remained with NCSC and, therefore, the Petitioner could be transferred as an employee of NCST to NCSC and with the above findings, the O.A. was dismissed. 3. Shri. Pattnaik, the learned Counsel appearing for the Petitioner drew attention of the Court to Annexure-1 and submitted that the erstwhile National Commission for Scheduled Castes and Scheduled. Tribes was bifurcated in two Commissions such as, NCSC and NCST with effect from 19.2.2004 and Clause-3 of the said letter shows that the officers and staff(other than those belonging to Joint Cadre) posted at-Headquarters of the 18 State Offices be bifurcated between NCSC and NCST as shown in the statement attached to the said letter as Annexure-C. Under Annexure-C attached to the said letter, the service of the Petitioner had been placed under NCST. Referring to this statement, the learned Counsel for the Petitioner submitted that the services of the Petitioner having been placed under NCST, he could have only been transferred by NCST to any of it's State offices covering the six places as mentioned in Annexure-I, such as, Bhopal, Bhubaneswar, Raipur, Ranchi, Shillong and Jaipur. Since there is no State office so far as National Commission for Scheduled Tribes is concerned in the State of Chennai, the Petitioner could not have been transferred to the office of NCSC at Chennai. 4. The learned Counsel for the opposite party No. 6 drew attention of the Court to Annexures attached to the counter affidavit filed before the Tribunal and submitted that bifurcation has not been finalized and, therefore, the inter -se transfer between two Commissions is permissible. 5. 4. The learned Counsel for the opposite party No. 6 drew attention of the Court to Annexures attached to the counter affidavit filed before the Tribunal and submitted that bifurcation has not been finalized and, therefore, the inter -se transfer between two Commissions is permissible. 5. From Annexure-I, it appears that bifurcation took effect on 19.2.2004 and in,pursuance of the said bifurcation, the officers and staff of erstwhile.National Commission for Scheduled Castes and Scheduled Tribes were required to be divided between the NCSC and NCST. In view of the above, the order in Annexure-1 was passed wherein the headquarters of the" State offices of NCSC and headquarters of the State offices of NCST were specified and under the said order, the placement of the officers and staff (other than those belonging to Joint Cadre) was done. It appears from Annexure-C that the service of the Petitioner had been placed under NCST and he was posted at Bhubaneswar. The sole question for determination before this Court is as to whether the service of the Petitioner having been placed under NCST at Bhubaneswar, he could be transferred to State office of NCSC at Chennai. Annexure F-1 to the counter affidavit filed by opposite party No. 6 before the Tribunal is dated 6th October 2005. The subject of the said letter is filling-up of vacant posts belonging to the Joint Cadre posts in the National Commission for Scheduled Tribes. It is specifically mentioned in the said letter that bifurcation of posts between the two Commissions and Ministries has not been finally decided. It is, therefore clear that till 6th October 2005 bifurcation of posts between two Commissions had not been finalized. From Annexure F-2, it appears that the Petitioner was promoted to officiate as Superintendent on ad hoc basis on 25.2.2005. The said order of promotion has been issued by the National Commission for Scheduled Caste and the Petitioner has accepted the promotion. The said promotional order clearly shows that while the Petitioner was working in the State office of NCST at Bhubaneswar, he was promoted to the post of Superintendent on ad hoc basis at NCST, Bhubaneswar by SCSC. Again Annexure F-3 also shows that the Petitioner was given further promotion to the post of Superintendent by the National Commission for Scheduled Castes whereas he was working under NCST at Bhubaneswar. Again Annexure F-3 also shows that the Petitioner was given further promotion to the post of Superintendent by the National Commission for Scheduled Castes whereas he was working under NCST at Bhubaneswar. This promotion was also accepted by the Petitioner.: It is, therefore clear from Annexures F-1, F-2 and F-3 filed before the Tribunal that though the service of the Petitioner had been placed under NCST under Annexure-1 dated 1.12.2004, bifurcation of posts between two Commissions had not been finalized and he was given promotion by NCSC while he was working under NCST. These documents clearly indicate that bifurcation had not been finalized even on 21.2.2006 and NCSC had the authority to give promotion to employees working under NCST, which was duly accepted by the Petitioner without raising any objection. Having accepted the promotion given by NCSC while working under NCST, it is no more open for the Petitioner now to say that he cannot be transferred to office of NCSC at Chennai on the ground that his service had been placed under NCST. The administrative control appears to be with NCSC otherwise NCSC could not have given promotion to the Petitioner twice though Petitioner was working under NCST. 6. In view of the above, the Tribunal was justified in dismissing the original application. We do not find any merit in this writ application, which is accordingly dismissed. I. Mahanty, J. 7. I agree. Final Result : Dismissed