Baidhara Panda and Others vs State Government of Orissa and Others

I.M. Quddusi, J.—By means of this Writ Petition, the Petitioners have challenged the office Order Dated 22nd January, 2008 passed by the Managing Director, Orissa Forest Development Corporation Ltd. by which the Petitioners who were working as Field Assistants of Bhubaneswar (C) Zone Office/Bhubaneswar (C) Division were transferred and posted as such in divisions noted against their name against existing vacancies of Watchers as they were found to be surplus.

The brief facts of the case are that the Petitioners were appointed as Mate, which was later on redesignated as Field Assistants, which is a Class III post The Orissa Forest Development Corporation Ltd. by office order No. 877 dated 15th November, 2006, circulated the final seniority list of the Field Assistants after disposal of the representation received from the employees concerned on the provisional seniority list and reports of the Divisional Managers of OFDC Ltd. The said seniority list is enclosed as Annexure-1 to the Writ Petition. It is a combined seniority list of the Field Assistants. It is the case of the Petitioners that while they were continuing as Field Assistants, pursuant to the decision of the Board of Directors and on administrative ground the Petitioners and some other Field Assistants as mentioned in Annexure 3 were declared as surplus Field Assistants of Bhubaneswar (C) Zone Office/Bhubaneswar (C) Division and were transferred and posted as such in different divisions mentioned against their name against existing vacancies of Watchers. It is contended on behalf of the Petitioners that there is one seniority list of the Field Assistants which has been prepared taking into consideration the date of their entry into Corporation Service. No seniority list is maintained unit wise and therefore there was no question of surplus Field Assistant in Bhubaneswar Zone. Many Field Assistant who are pretty junior to the Petitioners are allowed to continue as such whereas the Petitioners have been transferred to other Divisions against existing vacancies of Watchers which amounts to reversion.

Counter affidavit has been filed on behalf of Opposite Party Nos. 2 and 3. The main plea of the Corporation is that there was surplus staff in each rank of Corporation Service. Since the Corporation suffered cumulative loss of Rs. 121.00 crores upto 2004-05 and has been incurring loss every year and as the work load has been greatly reduced, the Management decided to reduce the excess man power through V.R.S./ C.R.S/retrenchment process. So far as the Field Assistant is concerned, as against the requirement of 751 Field Assistants, there were 1195 Field Assistants. So 444 number of Field Assistants were declared to be surplus. Therefore, the Corporation floated Voluntary Retirement Scheme to reduce the excess manpower on payment of lucrative financial benefits like ex-gratia, gratuity and other benefits like leave encashment. As 252 Field Assistants were found surplus in Bhubaneswar Zone and Division taken together, the Managing Director of the Corporation passed order transferring surplus field assistants from units of Bhubaneswar Zone including the 22 Petitioners to different Divisions having vacancies where some work is going on. Since as many posts of Field Assistants as necessary are not available at the place of posting, they were adjusted against the vacancy of Watchers available at those places. The assertion that by the transfer the Petitioners have been reverted to lower post has been denied by the Opposite Parties 2 and 3 as because of the transfer their pay, grade or seniority is in no way affected and their inter se seniority in the common seniority list is also not affected by the transfer.

(SIC) Learned Counsel for the Petitioner contended that one seniority list is maintained by the Corporation for the Field Assistants according to the date of entry into the service and no seniority list division or zone-wise is maintained. It is the further contention of the Learned Counsel for the Petitioners that the Opposite Parties have adopted pick and choose method while effecting transfer and in the process while juniors have been retained at their place of posting the seniors have been disturbed. Learned Counsel for the Corporation, on the other hand, submitted that having regard to the O.F.C. Service Rules, 1986 transfer can be effected due to exigencies Since there was reduction of work at Bhubaneswar, the Board of Directors instead of retrenching resolved to redeploy the excess manpower to places where some work is available than to pay idle wages and accordingly the Petitioners who were found to be surplus at Bhubaneswar were transferred as such under Annexure-3 to the divisions mentioned against their names and posted against existing vacancies of Watchers without affecting their pay, grade or seniority.

It is no doubt true that Rule 39 of the Service Rules of the O.F.D.C. Ltd. provides for retrenchment on reduction of establishment/abolition of posts. But such retrenchment is required to be made by following the principle prescribed in the Industrial Disputes Act, i.e., last come first go. It is the case of the Opposite Parties that the O.F.D.C. was having surplus manpower as per the approved reorganization and restructuring plan by the Board of Directors and the management decided to reduce the excess manpower through compulsory V.R.S., C.R.S. or retrenchment. Since the Petitioners, as stated by the Opposite Parties, were found surplus, Instead of retrenchment, they were transferred as such to different divisions against existing vacancies of Watchers. Undisputedly the grade and nature of job of Watchers is lower than the Field Assistants. Even though instead of retrenchment, if the Opposite Parties thought it fit to redeploy the surplus staff of one grade/post in a lower one, the same should have been done on the principle of last come first go and after obtaining their consent. We, therefore, dispose of this Writ Petition with a direction to the Opposite Party-corporation to prepare a seniority list of Field Assistants on the basis of the date of joining and if there is necessity of reducing surplus manpower, the same shall be done on the basis of last come first go. If, the authorities instead of retrenching the surplus Field Assistants intend to redeploy them by way of transfer to different divisions/zones against any other existing vacancy, the same shall be done after obtaining their consent/ willingness. This should be done within a period of one month from the date of production of a copy of this order. Till then, no further action shall be taken pursuant to the impugned order. If the aforesaid exercise is not completed within the time specified, the order of transfer so far as the Petitioners are concerned shall be treated to have been cancelled and they should be restored back to their previous place of posting with all service benefits. If the Petitioners are not found surplus having regard to their date of entry into the service, the impugned order of transfer so far as they are concerned shall be cancelled and in that case they should be restored to their posts with all arrears of salary.

Learned Counsel for the Petitioners has filed a memo stating that pursuant to the interim orders passed by this Court, Petitioners 1, 3, 4, 5, 6, 7, 12 and 22 have not been relieved whereas rest 14 Petitioners have been relieved but Petitioners 2, 13,15, 16, 18 and 21 have not joined in their new place of posting. They are on leave and have not been paid their salary and necessary orders are liable to be passed for payment of their salary. We observe that for this purpose it will be open to the Petitioners to move representation before the concerned authority, which shall consider the same sympathetically, and treat the period of absence as leave due and admissible.

There would be no order as to costs.