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2017 DIGILAW 316 (ORI)

Dinabandhu Kar v. State of Odisha

2017-03-23

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is under Articles 226 and 227 of the Constitution of India assailing the order dated 21.7.2016 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1922(C) of 2015 wherein the order of transfer as contained in Office Order No. 16661 dated 28.5.2015 has been refused to be interfered with by dismissing the Original Application. 2. The petitioner’s case is that he was appointed as driver in pursuance of the order dated 13.8.1996, which is under the Directorate cadre and as such, his transfer from Bhubaneswar Special Jail to Choudwar Central Jail vide order No. 16661 dated 28.5.2015 is illegal reason being that since he is of the Directorate cadre, he cannot be transferred elsewhere save and except to remain posted in the office of the Directorate, but the Tribunal without appreciating this aspect of the matter, has dismissed the Original Application treating him as a driver under the State cadre, which is impugned in the instant writ petition. 3. The opposite party-State has put its appearance before the Tribunal as before this Court and has taken a specific stand that the petitioner was appointed under the State cadre by virtue of the order dated 13.8.1996 with a specific direction to report for duty before the Superintendent, Bhubaneswar Special Jail on account of the vacancy having arisen due to retirement of a driver. He has been directed to go for medical examination being a selected and available candidate in the merit list prepared on account of an advertisement, in pursuance thereto the proceedings of the selection committee was held in the year 1995 as would be evident from Annexure-B/1 in which the petitioner being a candidate belonging to the general category could not have been selected due to non-availability of a vacancy although his name was appearing at Sl.No.5, but the candidates whose names were appearing at Sl.Nos.1, 2, and 3 had been selected. He, thereafter, has submitted his joining report before the Bhubaneswar Special Jail and from there he has been transferred to report to the Choudwar Central Jail. Hence, his service since was under the State cadre, he was transferred from Bhubaneswar Special Jail to Choudwar Central Jail. As such, the order of transfer has got no infirmity. He, thereafter, has submitted his joining report before the Bhubaneswar Special Jail and from there he has been transferred to report to the Choudwar Central Jail. Hence, his service since was under the State cadre, he was transferred from Bhubaneswar Special Jail to Choudwar Central Jail. As such, the order of transfer has got no infirmity. It is further submitted that the Tribunal after taking into consideration this aspect of the matter, has dismissed the O.A. Learned Addl. Govt. Advocate submits that the submission of the petitioner that he belongs to Directorate cadre and not belongs to State cadre is not correct for the reason that he all along was discharging his duties under Bhubaneswar Special Jail in pursuance to the order of appointment dated 13.8.1996 and other different orders, i.e., orders dated 9.9.2004 and 25.8.2012, which go to show that for short while he was directed to discharge the duty of driver in the office of the Directorate, which itself suggests that the petitioner was having its State cadre post and on deputation for short while he was directed to discharge his duty in the office of the Directorate. 4. We have heard the learned counsel for the parties. Perused the documents available on record including the order passed by the Orissa Administrative Tribunal, which is impugned in the instant writ petition. 5. The sole question raised by the petitioner in assailing the order of transfer dated 28.5.2015 that he being in the Directorate cadre, cannot be transferred from one jail to another treating him to be a State cadre employee. In order to examine this aspect of the matter, we have closely scrutinized the order dated 13.8.1996. From its perusal, it is evident that due to retirement of a driver and in public interest to fill up the retirement vacancy, an outsider, who was selected and available in the merit list was asked to undergo medical examination, the petitioner, being an enlisted candidate in pursuance to the advertisement published for selection as driver under the State cadre, had participated in the proceedings of the selection committee, but in spite of his name having been found at Sl.No.5 in the merit list, under the general category candidate, he was not engaged since the vacancy for the unreserved category was confined to three candidates. The petitioner being at Sl.No.5 in the said merit list had been considered and being found eligible was sent for medical examination, in which he having been found fit, was directed to be engaged as driver with a direction to report for duty before the Superintendent, Bhubaneswar Special Jail as would be evident from Annexure-1 appended to the writ petition. The petitioner has joined in Bhubaneswar Special Jail and remained there. We have found that for some intervening period, he was transferred from one place to another on deputation basis, but ultimately rendered his service under Bhubaneswar Special Jail. We have found from letter dated 9.9.2004 annexed to the counter affidavit as Annexure-C/1 that while he was posted at Bhubaneswar Special Jail, he was directed to drive the vehicle meant for the Asst. Inspector General of Prisons, Odisha until further orders and again vide order dated 25.8.2012, annexed as Annexure-D/1 to the counter affidavit, he was relieved to join at Bhubaneswar Special Jail immediately to drive the vehicle of the jail concerned, while he was deputed to Prison Director vide order dated 9.9.2004. It is further evident from the order of engagement dated 13.6.1996 that at the time of engagement itself, he was directed to report for duty to Bhubaneswar Special Jail to give effect to his order of appointment and accordingly, he has given his joining. Thus, all along the petitioner has discharged his duties at Bhubaneswar Special Jail in pursuance to the offer of appointment having not made any objection at any point of time. The authorities when passed the order on 28.5.2015 transferring him from Bhubaneswar Special Jail to Choudwar Central Jail, he for the first time has raised this issue that his transfer is illegal since it is contrary to the cadre rule as because according to the petitioner, he being an employee in the Directorate cadre, he cannot be transferred to any Special Jail or Choudwar Central Jail situated in the respective districts under the State. But, we on examination of the materials available on record, as has been discussed hereinabove, have found that the petitioner was engaged on 13.8.1996 due to the vacancy having arisen on account of retirement of one person and the petitioner being a selected candidate in pursuance to the meeting of the Selection Board initiated in terms of the advertisement, has got is position in Sl.No.5 in the merit list and thereafter having been engaged, he was directed to report for duty before the Superintendent, Bhubaneswar Special Jail, which he has accepted and since then, leaving apart a short interval, he remained at Bhubaneswar Special Jail and as such, these documents go to suggest that his appointment as driver is on a State cadre post, the State Govt. after taking into consideration this aspects of the matter has passed the order of transfer dated 28.5.2015. 6. We on close scrutiny of the order passed by the Tribunal have found that the Tribunal have taken into consideration all the documents including the order of appointment and other relevant documents as has been discussed by us hereinabove and thereafter having reached to the conclusion that the petitioner has failed to establish that he belongs to Prisons’ Directorate cadre, rather, agreeing with the stand of the State, has come to the finding that he belongs to the State cadre of driver under the Prison Director, and hence refused to interfere with the order of transfer. 7. In view thereof, since the Tribunal has passed a well reasoned and conscious order, basing upon the relevant documents, which we have discussed hereinabove, we are not inclined to interfere with the order. Accordingly, the writ petition fails and the same is dismissed.