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2013 DIGILAW 134 (ORI)

MD. QAISAR IQBAL ALI v. STATE OF ODISHA

2013-05-02

B.K.MISRA, M.M.DAS

body2013
JUDGMENT : M.M. Das, J. - The petitioner in the present writ petition has called in question the notification No. 6736/HUD dated 18.2.2013 (Annexure-1), by which he has been transferred from Bhubaneswar Development Authority (for short, 'the B.D.A.') and posted as Planning Member of Sambalpur Development Authority (for short, 'the S.D.A.') with additional charge of Secretary of Jharsuguda Regional Improvement Trust (for short, 'the JRIT) and S.P.A., Deogarh until further orders. The grounds of challenge to the transfer order, as stated in the writ petition, are that in absence of uniform service condition governing all the staff of all the authorities under the Orissa Development Authorities Act, 1982 (for short, 'the Act'), the petitioner could not have been transferred from the B.D.A. to the S.D.A. The further ground taken in the writ petition is that the vires of the amendments brought to sub-sections (3) and (4) of section 4 of the Act is under challenge before this Court in W.P.(C) No. 10095 of 2006 and W.P. (C) No. 9105 of 2007, which are pending adjudication. It is further stated in the writ petition that the constitutional validity of the Orissa Development Authorities (Amendment) Rules, 2010 is also under challenge in W.P. (C) No. 16460 of 2007 which were done to give effect to the amended provisions of section 4 of the Act. In essence, therefore, the contention of the petitioner is that the impugned transfer order is contrary to the rules and, hence, is required to be interfered with. 2. Mr. R.K. Rath, learned senior counsel appearing for the petitioner vehemently urged that since no common cadre exists between the employees of different Development Authorities in the State constituted under the Act, there cannot be inter se transfer of an employee from one Authority to another Authority. He further contended that the petitioner was appointed by the B.D.A. and, therefore, is an employee of the said Development Authority, who could not be transferred to serve in another Authority in absence of any common cadre inasmuch as the petitioner cannot be compelled to be included in the cadre of employees holding equivalent post under the SDA. He further contended that the petitioner was appointed by the B.D.A. and, therefore, is an employee of the said Development Authority, who could not be transferred to serve in another Authority in absence of any common cadre inasmuch as the petitioner cannot be compelled to be included in the cadre of employees holding equivalent post under the SDA. He relied upon various decisions of the Hon'ble Apex Court in support of his contention, which, this Court is of the view, is not required to be gone into as it is an admitted case that there is no common cadre existing between the employees of all the Development Authorities in the State and that law is well settled that there cannot be inter se transfer between different cadres. 3. A counter-affidavit has been filed by the opp. parties, which has been sworn to by the Senior Administrative Officer in the establishment of the B.D.A. and the said counter- affidavit has been adopted by the opp. party No. 1--State, who has filed a memorandum stating that the B.D.A. was authorized by the State to file the counter-affidavit on behalf of the State also. The stand taken in the counter-affidavit is that though the vires of the amended section 4 of the Act as well as the amended Rules have been challenged before this Court in various writ petitions, but the interim order of stay granted in one of the writ petitions with regard to operation of the amended provisions of the act and the Rules has been vacated by this Court and, there is no embargo in applying the said provisions for transferring the petitioner. It is further averred in the counter-affidavit that there is no bar on the part of the Government to depute an Officer of a Development Authority to any other Authority for maintaining the transparency and the transfer is a policy of the Government for ensuring good governance. It is also stated that this is not the first time that the employees of the Development Authorities have been transferred. Prior to such transfer, many of the employees and Officers of the B.D.A. have been transferred to different Development Authorities. Details of such persons have been given in the counter-affidavit. 4. It is also stated that this is not the first time that the employees of the Development Authorities have been transferred. Prior to such transfer, many of the employees and Officers of the B.D.A. have been transferred to different Development Authorities. Details of such persons have been given in the counter-affidavit. 4. In order to appreciate the rival contentions, it is appropriate to quote the amended provisions of sub-sections (3) and (4) of section 4 of the Act as well as sub-rule (4) of Rule 6 of the Orissa Development Authorities Rules, 1983, as amended by Orissa Development Authorities (Amendment) Rules, 2010: 4. Staff of the Authority.-- (1) & (2) xxxx (3) Notwithstanding anything contained in this Act or in the rules or regulations made thereunder, for the purpose of smooth and efficient administration of the affairs of the Authorities, the State Government may, at the instance of any Authority or otherwise, direct any Authority for transfer of any officer or employee of such Authority, by way of deputation, to another Authority for such period not exceeding six years at a time and on such conditions, as may be specified in the direction. (4) Whenever, any officer or employee belonging to an Authority is transferred under sub-section (3), the Authority to which the officer or employee is so transferred shall be bound to accept the joining report forthwith, employ him in the service of the Authority and pay all amounts due to him on account of his pay, allowances and other dues from out of the fund of that Authority. (6) Appointing authority, supervision and control -- (1) to (3) xxxx (4)(a) During the period of deputation the concerned employee will draw his pay and allowances in the existing scale of pay which is fixed by his/her parent organization. (b) He/she shall remain in the cadre of parent organization during the period of deputation. (c) Pay and allowances will be borne by the borrowing authority under intimation of parent organization. (d)The employee will be entitled to Dearness Allowances under the Rule of parent organization. (e) House rent allowances will be paid to the deputationist as per norm fixed by the borrowing authority. (f) Any loan or advance will be sanctioned by the borrowing authority and the Service Book will be maintained by the borrowing authority. (d)The employee will be entitled to Dearness Allowances under the Rule of parent organization. (e) House rent allowances will be paid to the deputationist as per norm fixed by the borrowing authority. (f) Any loan or advance will be sanctioned by the borrowing authority and the Service Book will be maintained by the borrowing authority. (g) He/she shall be entitled to the medical facilities as admissible to him/her as per norm fixed by the borrowing authority. (h) The share of CPF/EPF contribution of the employee concerned will be borne by the borrowing authority as per norm fixed by the parent organization and the borrowing authority will deposit the same in the Heads of Accounts of employee concerned. There is no need of change in respect of quantum of EPF contribution from the different authority. (i) The borrowing authority shall sanction leave -- (i) Upto a maximum period days credited to the leave account of the employee during deputation; and (ii) Exceeding the period as in para (i) above shall be sanctioned by the parent organization. (j) Joining time: (i) Not more than one day is admissible to an employee in order to join a new post on transfer within the same headquarters. A holiday counts as a day for the purpose of this rule. (ii) Not more than one day excluding holiday and actual time taken for journey in the shortest route is admissible to an employee in order to join a new post when the appointment to such post necessarily involves on transfer from one station to another: Provided the authority may extend the joining time for a maximum period up to six days in special cases where it is not possible on the part of the employee to join in new post within the period stipulated as in Para (i) & (ii) above. (k) The borrowing authority at any time with concurrence of Administrative Department may revert/repatriate the employee to his parent organization before completion of deputation period and vice versa. (l) The employee shall not be entitled to any other remuneration and concession of pensionary value unless it is specified on the terms of his/her deputation without specific sanction of parent organization. (k) The borrowing authority at any time with concurrence of Administrative Department may revert/repatriate the employee to his parent organization before completion of deputation period and vice versa. (l) The employee shall not be entitled to any other remuneration and concession of pensionary value unless it is specified on the terms of his/her deputation without specific sanction of parent organization. (m) The borrowing authority with prior approval of me Administrative Department may initiate disciplinary action against the employee concerned on the ground of misconduct under Orissa Civil Services (Classification, Control & Appeal) Rules, 1962, in case he violates the rules and regulations of the borrowing authority. (n) No deputation shall exceed six years at a time; Provided that if it is expedient to do so, the Finance Department shall be consulted. 5. A bare reading of the amended sub-sections (3) and (4) of section 4 of the Act would show that it clearly envisages that for the purpose of smooth and efficient administration of the affairs of the Authorities, the State Government can direct any Authority for transfer of any Officer or employee of such Authority by way of deputation to another authority for such period which shall not exceed six years at a time and on such conditions, as may be specified in the direction. (Emphasis supplied) Sub-section (4) thereof also stipulates that whenever, any officer or employee belonging to an Authority is transferred under sub-section (3), the Authority to which the officer or employee is so transferred, shall be bound to accept the joining report forthwith, employ him in the service of the: Authority and pay all amounts due to him on account of his pay, allowances and other dues from out of the fund of that Authority. The amended Rule now introduced, i.e., sub-rule (4) of Rule 6 prescribes the manner in which sub-section (4) of section 4 shall be operated. The impugned transfer order by notification No. 6736/HUD dated 18.2.2013 made as Annexure-1 to the writ petition in respect of the petitioner is as follows:-- 6736/HUD. Shri Md. Q.I. Ali, Asst. Town Planner, BDA, Bhubaneswar is hereby transferred and posted as Planning Member, S.D.A. Sambalpur with additional charge of Secretary, JRIT, Jharsuguda, SPA, Deogarh until further orders. The above order of transfer of the Government has, therefore, been passed by exercise of power under sub-section (3) of section 4 of the Act. Shri Md. Q.I. Ali, Asst. Town Planner, BDA, Bhubaneswar is hereby transferred and posted as Planning Member, S.D.A. Sambalpur with additional charge of Secretary, JRIT, Jharsuguda, SPA, Deogarh until further orders. The above order of transfer of the Government has, therefore, been passed by exercise of power under sub-section (3) of section 4 of the Act. The said order, therefore, amounts to transfer of the petitioner on deputation to the S.D.A., Sambalpur and such transfer cannot amount to be a transfer to a different cadre. This Court, therefore, is of the view that the transfer order having been passed under sub-section (3) of section 4 of the Act, as stated above, should be read as an order deputing the petitioner to the S.D.A. and the said Development Authority is to accept the joining report of the petitioner, who shall be entitled to all his dues as per his entitlement as provided in section 4 of sub-section (4) of the Act as well as the amended Rules and can be kept on deputation for a maximum period of six years. This Court further finds that the apprehension of the petitioner that he may lose his service benefits, such as seniority etc. on the ground that he is transferred to a different cadre and not within a common cadre does not hold any water. However, since the vires of the amendments of the Act as well as the Rules are sub-judice though we do not find any ground to interfere with the impugned transfer order/notification of transfer, but the said transfer will ultimately be subject to the result of the writ petitions filed, challenging the vires of the amendment of the Act as well as the Rules. In the result, therefore, we find no merit in the writ petition, which is accordingly dismissed. All pending Misc. Cases also stand disposed of. The interim order passed earlier stands vacated.