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2008 DIGILAW 805 (ORI)

STATE OF ORISSA v. SUBAL CHANDRA BHUYAN

2008-09-05

I.M.QUDDUSI, SANJU PANDA

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JUDGMENT : I.M. Quddusi, J. - This writ petition has been filed against the impugned judgment/order passed by the Orissa Administrative Tribunal, Bhubaneswar on 25.10.2005 in O.A. No. 9", of 2004 (Annexure-9) and the common order dated 8.9.2006 (Annexure-10) passed in S.P. No. 19/2006,R.P. No. 37/2006 and C.P. No. 8/2006 arising out of the aforesaid O.A. No. 927 of 2004. 2. The brief facts of the Petitioner's case is that the opposite party, while continuing as Headmaster, was transferred and posted as S.I. of Schools in Gobra Circle under Belaguntha Block vide order dated 30.11.1999 and accordingly, he joined on 18.12.1999 as S.I. of Schools. While he was working as S.I. of Schools, Gobara Circle was again transferred and posted as Headmaster of Government Nodal M.E. School, Dhiopodhal vide order dated 13.6.2003 on administrative ground on the basis of a complaint received from the grievance cell of the Chief Minister. Pursuant to the order dated 13.6.2003, the B.D.O. concerned, vide order dated 24.6.2003, relieved the opposite party with effect from 24.6.2003 (AN) to enable him to join in the new place of posting. Being aggrieved, the opposite party moved a petition on 20.10.2003 in the grievance cell of the Director of Elementary Education, Orissa, who instead of passing any order forwarded the same to the D.I. of Schools since the transfer was to a post belonging to the same cadre. After receipt of the Siamese the D.I. of Schools found that the opposite party has been transferred on administrative ground on the basis of the instruction given by the Chief Minister's Office he sought clarification from opposite party No. 2 as to whether the transfer of opposite party would be modified. Against the order of transfer, the opposite party preferred. O.A. No. 9", of 2004 before the learned Administrative Tribunal, Bhubaneswar and accordingly, the Tribunal quashed the order of transfer of opposite party dated 13.6.2003 on the ground that the opposite party had only remained as S.I. of Schools from 1999 and not completed ten years in the nonteaching post. A further prayer had been made by the opposite party before the Tribunal for a direction to the present Petitioners to modify his order of transfer and to post him against other vacant post of S.I. of Schools. A further prayer had been made by the opposite party before the Tribunal for a direction to the present Petitioners to modify his order of transfer and to post him against other vacant post of S.I. of Schools. O.A. No. 9", of 2004 was disposed of on 7.4.2004 with the following direction: O.A. is disposed of with a direction to send the paper book to Respondent No. 2 to consider the letter of Respondent No. 3 as at Annexure-6 dated 24.1.2004 in the light of the averments in the O.A. Pass appropriate orders regarding posting of the applicant as S.I. of Schools in Bhanjanagar Block in modification of the order under Annexure-2 and communicate his order to the Respondent No. 3 with a copy to the applicant within two months from the date of receipt of a copy of this order. After receipt of the order dated 7.4.2004 passed by the Tribunal in O.A. No. 9", of 2004, the Director of Elementary Educatiol), Orissa by order dated 22.7.2004 (Annexure-6) rejected the prayer of opposite party for modification of his earlier order of transfer dated 13.6.2003 on the following grounds: i) That the decision of the transfer committee who have been empowered by Government to take decision in the matter of transfer of S.I. of Schools and teachers should be honoured; and ii) That the applicant has been posted as Headmaster of the U.P. School which is of same rank to the post of S.I. of Schools, both the posts being under Level-III services of Elementary Education Cadre. Against the order dated 22.7.2004, the opposite party again approached the Tribunal. An O.A No. 9", of 2004 with a prayer 10 quash the order dated 22.7.2004 and the earlier transfer order dated 13.6.2003. 3. The Tribunal, vide order dated 25.10.2005, allowed O.A. No. 927 of 2004 filed by the opposite party and quashed the order dated 22.7.2004 (Annexure6) with a direction to opposite party No. 2 to issue suitable instruction to the, O.I. of Schools, Bhanjanagar in the district of Ganjam to modify the earlier transfer order dated 13.6.2003 of the opposite party issued as per Government order dated 16.6.2004 within seven days from the date of receipt of that order. The D.I. of Schools was directed to pass appropriate order strictly in accordance with the said direction of the Government within three weeks from the date of receipt of the instruction from the Director and communicate the same to the instant opposite party within the said period. The opposite party, while working as Headmaster in Government U.P. (M.E.) School, Bahadapadar was transferred vide order dated 30.11.1999 to the post of S.I. of Schools, Gobara Circle of Belaguntha Block and he joined as S.I. of Schools on 10.12.1999, but vide impugned order dated 13.6.2003, he was again transferred from the post of S.I. of Schools, Gobara Circle to the post of Headmaster, Government Nodal M.E. School, Dhiopodhal. Consequently, he was relieved on 24.6.2003. Thereafter, he had challenged his order of transfer from the post of S.I. of Schools to the post of Headmaster before the Tribunal being contrary to the Government Circular dated 25.7.2001 in which it has been provided that the S.I. of Schools who have stayed for ten years or more in non-teaching line should be transferred and posted in teaching post and the vacancy should be filled up by incumbent from teaching post following the due procedure. But the transfer of these categories of officers are to be done by Transfer Committee headed by the Inspector of Schools and during ban period, approval of the Collector is to be taken. The stand of the instant Petitioners before the Tribunal was that the opposite party was transferred and posted as Headmaster vide impugned order dated 13.6.2003 on administrative ground as per the instruction of the Government and on the approval of the District Transfer Committee and was not considered to be posted as S.I. of Schools in the block other than Belaguntha on the grounds that the District Transfer Committee on 25..6.2004 resolved not to transfer him as S.I of Schools, Bhanjanagar Block and the said decision was honoured as the post of Headmaster is of the same rank as that of S.I. of Schools and that his rank on posting as Headmaster has not been reduced to the lower rank. 4. The Tribunal interpreting the Government Order dated 25.7.2001 held that the opposite party could not have been transferred prior to completion of ten years. Therefore, the crux of the matter is the interpretation of paragraph-3 of the Government Circular dated 25.7.2001, which is quoted hereunder: 3. 4. The Tribunal interpreting the Government Order dated 25.7.2001 held that the opposite party could not have been transferred prior to completion of ten years. Therefore, the crux of the matter is the interpretation of paragraph-3 of the Government Circular dated 25.7.2001, which is quoted hereunder: 3. For the transfer of Sub-Inspectors of Schools, an instruction was issued vide letter No. 4637 dated 8.3.2001 whereby it was mentioned that Sub-Inspectors of Schools who stayed for 5 years as such or more in any particular Block should be transferred and posted to other Block of the district. The SubInspectors of Schools who have stayed for 10 years or more in non-teaching line should be transferred and posted in the teaching post and vacancy should be filled up by incumbent from teaching post following the due procedure. But transfer of these categories of officers were to be done by transfer committee headed by Inspector of Schools and during ban period approval of Collector is to be taken. 5. The above mentioned circular dated 25.7.2001 was issued in a situation when mass transfers were being made and it was directed that during ban period, minimum transfers required for rationalization of teachers should be made with the approval of the Collector and Chief Executive Officer, Zilla Parishad. Therefore, the policy of the Government was to make minimum transfers and, accordingly, it was directed that the S.I. of Schools, who have stayed for ten years or more in non-teaching line should be transferred and posted in the teaching post. The words "ten years or more" had been used. Therefore, the S.I. of Schools, who has not completed ten years, would not come under the scope of the instruction of the Government. In view of the above, we do not find any manifest error of law in the impugned judgment/order passed by the Tribunal. The writ petition is, therefore, dismissed. Sanju Panda, J. 6. I agree. Final Result : Dismissed