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2019 DIGILAW 383 (ORI)

Sudhakar Tripathy v. State of Odisha

2019-05-01

A.K.MISHRA, S.K.MISHRA

body2019
ORDER : 1. Heard Mr. K.K. Swain, learned counsel for the appellant and Mr. J. Katikia, learned Additional Government Advocate for the State. 2. Learned counsel for the appellant cited two decisions, i.e. The Management of D.A.V. Public School, Chandrasekharpur v. State Government of Orissa, represented by its Secretary and another, reported in 2010 (II) OLR 85 and Employer in Relation to Management of Central Mine Planning and Design Institute Ltd. v. Union of India & Anr., reported in JT 2001 (2) SC 87, to contend that this writ appeal is maintainable against the impugned order dated 13.03.2019 passed by the learned Single Judge in I.A. No. 4092 of 2019 pending W.P.(C) No. 17167 of 2017. The writ petition was filed to regularize the services of the petitioner appellant against the post of Pharmacist with all consequential benefits within a time limit on quashing of Annexures-11 and 12. 3. I.A. No. 4092 of 2019 was filed to stay the order dated 16.02.2019 in Annexure-14 till disposal of the writ appeal. By that order of the Executive Officer, Puri Municipality dated 16.02.2019 vide Annexure-14, the appellant was directed to hand over the detailed charges to one Padosh Mumar Swain, Pharmacist, in charge of Pharmacist, Municipal Hospital, Swargadwara and Dolabedikona Dispensary with immediate effect. Learned Single Judge dismissed the interlocutory application (I.A.) stating that "since the petitioner was appointed against the substantive post of a Dresser, he was directed to hand over the detailed charge to one Pradosh Mumar Swain and thereby no illegality or irregularity was committed by the authority so as to warrant interference by this Court." 4. In the cited D.A.V. Public School, Chandrasekharpur case (supra) decision of this Court it has been stated that "It is well settled legal position of law that any order that would be passed including an order of either granting an interim order or not granting an interim order is appealable under Section 10 of L.P.A." 5. The Hon'ble Supreme Court in Employer in Relation to Management of Central Mine Planning case (supra) has clarified that "appeal lies against intermediary or interlocutory judgment where "such other orders which possess the characteristics and trappings of penalty and may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding." 6. In that case it is held that for the purposes of Letters Patent the test is whether the order is a final determination affecting vital and valuable rights and obligations of the parties concerned and that has to be ascertained on the facts of each case. 7. In the instant case, the question is whether the right of the appellant-is affected under Annexure-14 by ordering to hand over charge. There is no dispute that the petitioner-appellant was holding the post of 'Dresser' and in absence of available of substantive post of Pharmacist he was in charge of that.' 8. The process of making over and taking over charge is a necessary adjunct of duty of an employee. It is a routine business of the employer to ask employee to make over and take over charge but when such direction affects the service condition of the post the employee held, the same can be said to have effect on the right incidental to the 'post' or breach of service condition. Otherwise the employee is to yield to such discretion of the employer. 9. The petitioner has no absolute right over the properties of which he is directed to make over. Such direction does not affect the conditions precedent to the performance of the duties attached to the post of Dresser. If he feels aggrieved, it is not for the post he substantially holds but the post he wants to hold in future if created. A duty akin to the future post does not need protection in praesenti stay order, pending final adjudication of the writ petition. 10. In view of the above analysis, the right and obligation of the appellant is no way found to have been affected by the order under Annexure-14 and the impugned order refusing to stay Annexure-14 is not appealable in this intra court appeal. 11. The appeal is not maintainable and accordingly the same is dismissed.