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2017 DIGILAW 527 (ORI)

Kalyani Parida v. State of Odisha

2017-05-05

S.N.PRASAD, SANJU PANDA

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is under Articles 226 and 227 of the Constitution of India wherein the order dated 10.4.2017 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A.No.873(C) of 2017 is under challenge whereby and where under the Tribunal while issuing notice upon the opposite parties/State authorities in the order of transfer transferring the petitioner but refused to grant interim order. 2. Brief facts of the case is that the petitioner/applicant while working as Associate Professor, Radio-diagnosis, S.C.B. Medical College and Hospital, Cuttack was transferred and posted as Officer-on-Special Duty in the office of the DMET, Orissa, Bhubaneswar vide order dated 15.9.2015 and while she was posted there, a departmental proceeding was initiated against her vide order dated 16.6.2016 under Rule 15 of the Orissa Civil Service(Classification, Control and Appeal) Rules, 1962. The Government of Odisha has come out a notification dated 25.3.2017 by which large number of medical college teachers were promoted to the post of Professor/Associate Professor and posted at different medical colleges including the new medical colleges i.e. TRMMCH, Baripada and SLNMCH, Koraput and in the same order the petitioner, vide memo No.8532 dated 25.3.2017, has been transferred and posted to SLNMCH, Koraput against the existing vacancy. Against that transfer order the petitioner has filed original application before the Tribunal being O.A.No.777(C) of 2017 and the Tribunal vide order dated 28.3.2017 while disposing of the original application, has remitted the original application before the respondent no.1 to treat the same as the representation of the applicant/petitioner, consider and dispose of the same on its own merit as per Rules, within a period of two weeks from the date of receipt of copy of that order and till then status quo of the applicant as on 28.3.2017 be maintained. Pursuant to the Government of Orissa, Health and Family Welfare Department vide order No.923 dated 5.4.2017, the Government has rejected the representation of the applicant as devoid of merit and refused to interfere with the decision of the authority in transferring her, hence she again approached the Tribunal in O.A.No.873 of 2017 wherein the Tribunal while issuing notices to the opposite parties fixing the case after four weeks, but however with no interim order, against which the instant writ petition has been filed by her on the grounds that since the matter is of transfer and as such, the authorities ought to have passed interim order staying operation of the order of transfer, by not passing such order of stay, the Tribunal has committed error since in the matter of transfer, if interim inter will not be passed it will be infructuous. It has been submitted that the Tribunal has not considered the fact that since departmental proceeding is going on and as such transferring her to a remote place will cause prejudice to her in the departmental proceeding and also ground has been made that she has been transferred by way of colourable exercise of power since there is no requirement of the post which she is holding. 3. This Court vide order dated 12.4.2017 has directed the learned Additional Government Advocate to obtain instruction in the matter, in pursuance thereof, learned Additional Government Advocate has argued the case at length by submitting that since the order of transfer of the petitioner, who is the incumbent of a specialist category of the post in the health service having worked as Associate Professor in the Radia-diagnosis in the SCB Medical College & Hospital, Cuttack and as such, the Government after taking decision to promote medical college teachers to the post of Professor/Associate Professor and posted her in public interest, hence due to larger interest of the people she has been posted at SLNMCH, Koraput, as such it cannot be said that it is by way of colourable exercise of power. He further submits that so far as causing prejudice to the petitioner is concerned, the Tribunal while issuing notice has directed to give all opportunity to her to come to Bhubaneswar to attend departmental proceeding as and when required. He further submits that so far as causing prejudice to the petitioner is concerned, the Tribunal while issuing notice has directed to give all opportunity to her to come to Bhubaneswar to attend departmental proceeding as and when required. He further submits that also taking into consideration that the Medical Council of India is to visit for according permission for giving admission to MMBS students and as such it has been submitted that on these pretext the Tribunal has refused to pass interim order. Learned counsel for the petitioner has filed one document relating to the Medical Council of India showing staff requirement for 100 admissions. 4. We have heard learned counsel for the parties and perused the documents available on record. 5. Admittedly the petitioner is holding the post of Associate Professor, Radio-diagnosis. She was transferred and posted as Officer-on-Special Duty in the office of the DMET, Orissa, Bhubaneswar vide order dated 15.9.2015 from SCB Medical College, Cuttack. While she was working, a departmental proceeding was initiated against her vide order dated 16.6.2016 in exercise of power conferred under Rule 15 of the OCS(CCA) Rules,1962. The Government has accorded promotion to medical college teachers vide order dated 25.3.2017 to the post of Professor/Associate Professor and posted at different medical colleges including the new medical colleges i.e. TRMMCH, Baripada and SLNMCH, Koraput. In course thereof, the petitioner has also been transferred to the newly constituted Medical College i.e. SLNMCH, Koraput vide order dated 25.3.2017. The petitioner being aggrieved with the order of transfer has approached the Tribunal vide O.A No.777(C) of 2017, the Tribunal while disposing of the original application has directed the authorities to take decision, accordingly the decision was taken by the authorities on 5.4.2017 rejecting her claim. The order of rejection dated 5.4.2017 has been challenged before the Tribunal in O.A.No.873(C) of 2017 wherein the Tribunal has issued notices to the opposite parties fixing the case after four weeks vide order dated 10.4.2017 but refused to grant interim order which is under challenge in this writ petition wherein questing the legality and propriety of the order passed by the Tribunal. We are only concerned with the decision of the Tribunal by which prayer of the petitioner to stay operation of the order dated 5.4.2017 has been refused. 6. We are only concerned with the decision of the Tribunal by which prayer of the petitioner to stay operation of the order dated 5.4.2017 has been refused. 6. We have gone through the order of transfer and the reasons stated therein that the petitioner has been transferred on public interest, her predicament is that she will be prejudiced in the departmental proceeding; the Tribunal has protected her interest and as such refused to grant interim order of stay. Learned counsel for the petitioner cited one judgment of this Court stating that in the matter of transfer, if order will not be stayed, it will be infructuous but it is settled that the judgment has got no universal applicability rather it depends upon the facts and circumstances of each case. In the instant case, where the petitioner has been posted in public interest at large taking into consideration of the interest of the Medical Council of India and the fact that the petitioner has got specialist in Radio-diagnosis, the Tribunal has refused to pass interim order directing the authorities to file affidavit so that the matter can be finally decided on its merit after hearing the parties. 7. So far as the contention that if the order of transfer will not be stayed it will become infructuous, it cannot be applicable in each and every aspect of the matter since the Tribunal has issued notice to the opposite parties and if the Tribunal would come to finding that the order of transfer is by way of colourable exercise of power and if the order of transfer will be quashed on the basis of adjudication on merit depending upon the document, in that situation, ante status quo will come into play and in that view of the matter, it cannot be said that merely on account of the fact that interim stay has not been passed the original application will become infructuous. Even otherwise interim order is to be passed by the court of law depending upon the contention i.e. prima facie case, balance of convenience and irreparable loss to the parties, we, after taking into consideration these three principles, are of the considered that that the Tribunal has not erred in refusing to grant interim order of stay by staying operation of the order of transfer so as to consider larger interest of the public as has been reflected in the order and by refusing it, it cannot be said that the applicant will suffer irreparable loss. 8. We, after taking into consideration of the factual aspects as stated above, are of the considered view that the order passed by the Tribunal so far it relates to not staying of operation of the order of transfer dated 5.4.2017 needs no interference, accordingly the instant writ petition is dismissed. However, since the Tribunal has directed the authorities to file counter within four weeks as would be evident from the order dated 10.4.2017 and as such, the Tribunal will take all sincere efforts for expeditious disposal of the original application as early as possible preferably within six weeks from the date of receipt/production of certified copy of this order and decide the issue without being prejudiced by any of the observation made in this order.