Dasarathi Behera and Others vs State of Orissa and Others <BR> State of Orissa and Others Vs Dasarathi Behera and Others

B.P. Das, J.—Both these Writ Petitions have been filed under Articles 226 and 227 of the Constitution of India challenging the judgment dated 14.5.1999 passed by the Orissa Administrative Tribunal, Bhubaneswar, allowing Original Application No. 2129/1997, vide Annexure-1, and quashing the Resolution dated 18.9.1997 issued by the State Govt. in Forest and Environment Department.

O.J.C. No. 6498/1999 is filed by Respondent Nos. 4 to 9 arraying Respondents Nos. 1 to 3, i.e., the Stated and its functionaries, as O.P. Nos. 1 to 3, and the applicants as O.P. Nos. 4 to 11, whereas O.J.C. No. 10061/1999 is filed by the State and its functionaries, i.e., Respondent Nos. 1 to 3, arraying Respondent Nos. 4 to 9 as O.P. Nos. 1 to 6 and the applicants as O.P. Nos. 7 to 14.

As both the writ petitions arise out of one and the same judgment, those were heard together and are being disposed of by this common judgment. Counter affidavit and affidavits filed by the respective parties in the former case have been adopted in the latter case as prayed for by the learned Counsel for the parties.

The brief facts leading to the filing of O.A. No. 2129/1997 as well as the writ petitions are as follows:

The applicants, who are O.P. Nos. 4 to 11 in O.J.C. No. 6498/1999 and O.P. Nos. 7 to 14 in O.J.C. No. 10061/1999, filed the aforesaid O.A. challenging the Resolution dated 18.9.1997 issued by the State Govt. in Forest and Environment Department. In the application the applicants stated that they were originally appointed in the ministerial posts in different Circles and District Offices of the Forest Department and as such they were in the District Cadre. After formation of the Chief Wild Life Warden (C.W.L.W.) in the rank of Addl. Chief Conservator of Forests (Addl.C.C.F.), they were transferred from different Circles and District Offices and posted in the aforesaid organization on different dates in-between 1979 and 1989. The State Govt. by the Resolution dated 13/16.7.1984 delegated the Chief Wild Life Warden (Addl. Chief Conservator of Forests) with the powers of Heads of Department in respect of the entire Wild life Organization in the field with a direction that he would exercise all the powers of Heads of Department under the Delegation of Financial Powers Rules, 1978 subject to overall control and supervision of the Chief Conservator of Forests (C.C.F.). The Orissa State Wild life Advisory Board in its meeting held on 15.2.1986 recommended merger of the staff working in the office of the Addl.C.C.F. (Wild Life) (i.e., C.W.L.W.) in the cadre of staff of C.C.F. (Wild Life). Thereafter the State Govt. by Resolution dated 11.7.1995 established a separate Heads of Department for the Wild life Organization in the State and declared the Principal Chief Conservator of Forests (P.C.C.F.)/C.C.F. (Wild Life) and his office as a separate Heads of Department equivalent in status and responsibility to that of the Principle C.C.F./C.C.F., Orissa, under the administrative control of the Forest and Environment Department. Consequent upon declaration of the P.C.C.F./C.C.F. (Wild Life) as a separate Heads of Department, the question of absorption of the ministerial staff of the office of the C.C.F. (Wild Life) and C.W.L.W. in the grade/cadre of the Heads of the Department was considered and the applicants, who were continuing in the said office, were merged in the grade/cadre of the newly established Heads of Department for the Wild Life Organisation in the State, namely, P.C.C.F./C.C.F. (W.L.) and the C.W.L.W., Orissa, as per the decision taken by the Government in the Resolution dated 7.3.1996. Pursuant to the aforesaid Resolution, the P.C.C.F. (W.L.) and the C.W.L.W., Orissa, issued Office Order dated 18.3.1996 re-designating the posts held by the applicants and sanctioning the scales of pay of different posts. Aggrieved by the aforesaid action of the State, the Orissa Karmachari Sangram Samiti made a representation on 12.3.1996 to the Principal C.C.F., who in his turn requested the Govt. by letter dated 19.3.1996 to re-consider the decision taken in the Resolution dated 7.3.1996 and suggested that instead of absorbing the circle cadre incumbents in the office of the Principal C.C.F. (W.L.) in the Heads of Department cadre, such upgraded posts in that office might be filled up from amongst the ministerial staff of common cadre of the Heads of Department of Forest Department. Thereafter the State Govt. by the Resolution dated 18.9.1997 decided that the staff belonging to the District cadre, who had been absorbed in the Heads of Department cadre on 7.3.1996, would be reverted to their parent cadre, i.e., the District cadre in the Forest Department consisting of posts in the offices of the D.F.O. and offices of the Conservator. The applicants challenged the aforesaid Resolution dated 18.9.1997 of the State Govt. before the Tribunal in O.A. No. 2129/97, as stated above.

Respondent Nos. 1 and 2 filed a joint reply defending the decision taken in the Resolution dated 18.9.1997 to reverse the decision taken in the Resolution dated 7.3.1996 and contending, inter alia, that as the existing staff of the C.W.L.W. originally belonged to the circle cadre, they could not be merged in the cadre of the P.C.C.F. (W.L.) even though the Orissa State Wild Life Advisory Board had recommended for merger of the staff of the erstwhile Conservator of Forests (W.L.) in the cadre of the staff of the P.C.C.F (W.L.).

Respondent Nos. 4 to 9, who were continuing in the office of the P.C.C.F. (W.L.), and were subsequently impleaded as intervenors, filed their reply justifying the action of the State Govt. in issuing the Resolution dated 18.9.1997 by reversing its earlier Resolution dated 7.3.1996.

The Tribunal heard the applicants as well as Respondent Nos. 1 to 3, i.e., the Petitioners in O.J.C. No. 10061/1999, and Respondent Nos. 4 to 9., the Petitioners in O.J.C. No. 6498/1999, and by the impugned judgment dated 14.5.1999 allowed the O.A. and quashed the Resolution dated 18.9.1997 holding inter alia, that the decision taken by the Govt. in the aforesaid Resolution dated 18.9.1997 was not sustainable as the same was not based on merit but had been largely influenced by the demand of the Karmachari Sangha. In the present writ petitions, the Petitioners have assailed the aforesaid judgment passed by the Tribunal on various grounds and specially on the ground that as the decision taken in the Resolution dated 7.3.1996 had serious infirmities, the same was reversed by the subsequent decision taken in the Resolution dated 18.9.1997.

It was admitted by the learned Counsel for the State as well as the learned Counsel for the Petitioners in O.J.C. No. 6498/1999 that the Govt. in its Resolution dated 7.3.1996 had decided to absorb the staff of the office of the C.W.L.W., Orissa in the grade/cadre of the Heads of Department. The aforesaid Resolution is quoted as hereunder:

The Government in Forest and Environment Department Resolution No. 652-2(M)-12/92-F. and E. dated the 11th July, 1995 have declared the Principal Chief Conservator of Forests/Chief Conservator of Forests (W.L.) and Chief Wild life Warden, Orissa, as a separate Heads of Department and equivalent in status and responsibility to that of the Principal Chief Conservator of Forests/Chief Conservator of Forests, Orissa under the Administrative control of the Forest and Environment Department. Consequent upon declaration of the said Heads of Department, absorption of the Ministerial staff of the office of the erstwhile Chief Wild life Warden, Orissa in the Grade/Cadre of the Heads of Department has been felt necessary. After carefully consideration Government have now been pleased to decide that the Ministerial posts created for the office of the erstwhile Chief Wild life Warden, Orissa as enumerated in the Schedule appended to this Resolution shall be merged in the Grade/Cadre of the aforesaid Heads of Department and the incumbents holding those posts on the date of issue of this Resolution shall be redesignated as in the Schedule. The seniority of the existing incumbents in the office of the erstwhile C.W.L.W., Orissa as maintained on the date of issue of this Resolution shall remain unaltered on their absorption in the Grade/Cadre of the Heads of Department as maintained by the Principal Chief Conservator of Forests.

In the aforesaid process of absorption, the existing Ministerial staff in the Heads of Department Grade/Cadre the post of Office Superintendent and the post of Head Clerk shall be down-graded in redesignating them as Section Officer, Level-I and Senior Assistant respectively, 2 posts of Senior Clerk shall be upgraded in redesignating them as Senior Assistant. The down-gradation of the post may affect the employees namely the Head Clerk and the Office Superintendent in the long-run for which they may be allowed to opt to retain their old post and in old scale of pay.

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It is also an admitted fact that in the Resolution dated 18.9.1997 the Govt. in Forest and Environment Department decided to modify its earlier decision in the matter and to fill up the ministerial posts in the office of the Wild life Warden, which was called the P.C.C.F. (W.L.), and had been declared as Heads of Department in accordance with the provisions laid down in the Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Assistants and Section Officers in the Offices of the Heads of Departments) Rules, 1994. It was indicated therein that the authority controlling the Common Cadre of Ministerial staff in the Heads of Department, i.e., the P.C.C.F. would continue to be the cadre controlling authority of the Ministerial staff working under the P.C.C.F. (W.L.), Orissa, along with other Heads of Department, namely, C.C.F. (Kendu Leaf), Director, Social Forestry Project, Orissa, and that the staff belonging to District Cadre, who had been absorbed in the Heads of the Department Cadre as per the Resolution dated 7.3.1996 would be reverted to their parent cadre, i.e., the District Cadre in the Forest Department consisting of posts in the office of D.F.O. and the offices of Conservator. It was further indicated that although the pay scales and conditions of service of the staff were identical, normally by practice the services of employees working under Divisional Forest Officer and Conservator were not interchangeable among themselves; hence the staff of the office of P.C.C.F. (W.L.), Orissa, who were brought from the office of the Conservators and Divisional Forest Officers would return to their respective offices in the District Cadre and such staff on their reversion to the district cadre would not lose their seniority and their original seniority before coming over to the office of the Chief Wild Life Warden, Orissa, would be maintained in the District Cadre and kept intact, and would be taken into consideration in deciding all types of Service benefits to be given.

Learned Counsel appearing for the Petitioners in both the writ petitions submitted that modification of the Resolution dated 7.3.1996 was necessitated because the P.C.C.F. pointed out certain difficulties regarding implementation of the Govt. decision and the Orissa Karmachari Sangram Samiti and the Orissa Heads of Department Ministerial Officers Association raised objections to the decision of the Govt. regarding absorption of the staff of the office of the C.W.L.W. Grade/Cadre of the Heads of Department in a representation made in that regard. The P.C.C.F. also pointed out that it was not possible to absorb the junior employees of the district cadre in the cadre of the Heads of Department because these two cadres were regulated by two different sets of recruitment rules, i.e., the Orissa Ministerial Services (Method of Recruitments to the posts of Junior Clerk in the District Offices) Rules, 1985 and the Orissa Ministerial Services (Method of Recruitment and Conditions of Service of Assistants and Section Officers in the Office of the Heads of Departments) Rules, 1994. It was further stated in the Resolution that if the employees of the office of C.W.L.W., Orissa, would be absorbed in the Grade/Cadre of Heads of Department, difficulties would arise in fixing their inter se seniority vis-a-vis the existing employees in their parent cadre and that the promotional prospects of the existing ministerial staff of the Heads of Departments would be affected.

Learned Counsel for the opposite party-applicants submitted that after they were absorbed/merged in the Grade/Cadre of the Heads of Department as per the Resolution dated 7.3.1996 and their scales of pay were changed in terms of the office order dated 18.3.1996 of the P.C.C.F. (W.L.) and C.W.L.W., Orissa, the subsequent decision to reverse the decision in the Resolution dated 7.3.1996 prima facie appeared to have been taken on the pressure of the Orissa Karmachari Sangram Samiti on whose representation dated 12.3.1996 the P.C.C.F., Orissa, requested the Govt. by letter dated 19.3.1996 to re-consider the earlier decision and suggested that instead of absorbing the circle cadre incumbents in the office of the P.C.C.F. (W.L.) in the Heads of Department cadre, such upgraded posts in that office might be filled up from amongst the ministerial staff of the common cadre of Heads of Department of Forest Department maintained by him. Acting upon the representation of the Sangram Samiti and the suggestion of the P.C.C.F., Orissa, as indicated above, the Govt. passed the Resolution dated 18.9.1997 to reverse its earlier decision as per the Resolution dated 7.3.1996. The aforesaid Resolution dated 18.9.1997 was challenged before the Tribunal and the Tribunal ultimately quashed the same.

We have to examine as to whether the order passed by the Tribunal quashing the Resolution dated 18.9.1997 is legal and correct and whether the decision of the State Govt. to reverse its earlier decision in the Resolution dated 7.3.1996 is justified.

Let us first see that Resolution dated 18.9.1997, which was impugned before the Tribunal. The reason for issuance of the said Resolution, as mentioned therein, is the objections raised by the Orissa Karmachari Sangram Samiti and the Orissa Heads of Department Ministerial Officers Association and the difficulties pointed out by the P.C.C.F. regarding implementation of the said Govt. decision. In paragraph 5 of the writ petition (O.J.C. No. 10061/1999), the State Govt. has averred that the P.C.C.F. in his letter dated 19.3.1996 moved the Govt. for re-consideration of its earlier decision dated 7.3.96 pointing out serious infirmities in the said decision and that the Govt. carefully considered the material and letter dated 19.3.1996 of the P.C.C.F. and passed the Resolution/order dated 18.9.1997. At this stage, it would be worthwhile to have a look at the reply filed by the State before the Tribunal. In the said reply, the State Govt. had taken a stand that the existing staff of the office of C.W.L.W. were of circle cadre and they could not be merged in the cadre of Addl.C.C.F. (Wild life) and even though the Orissa State Wild life Advisory Board in their proceeding of the 8th meeting dated 15.2.1986 had recommended for merger of staff of the erstwhile C.W.L.W in the cadre of the staff of C.C.F., Orissa, the same could not be considered by the Govt. In the said reply, it was admitted that the Govt. in Forest and Environment Department Resolution dated 1.7.1995 had declared the P.C.C.F. (Wild life) and his office as a separate Heads of Department with equivalent in status and responsibility to that of P.C.C./C.C.F., Orissa, under the administrative control of the Forest and Environment Department and vide Resolution dated 7.3.1996 the Govt. decided that the ministerial posts created for the erstwhile C.W.L.W., Orissa, would be merged in the grade/cadre of the aforesaid Heads of Department and the incumbents holding these posts on the date of issue of the Resolution would be re-designated as per the schedule appended thereto. The State Govt. referred to the relevant appointment of O.Ps. 7 to 14, i.e., the applicants in the O.A., and took a stand that the applicants belonged to circle cadre by virtue of their appointment in the Circle Offices and their gradation list had been maintained accordingly. The State further referred to the letter dated 19.3.1996 of the P.C.C.F., wherein the P.C.C.F. objected to the proposed merger and stated that the absorption of the applicants in the office of P.C.C.F. (W.L.) was contrary to the Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Assistants and Section Officers in the Office of Heads of Departments) Rules, 1994 and therefore, the Govt. had carefully re-considered the matter and thought it proper to reverse the decision taken in the Resolution dated 7.3.1996 by reverting the staff of the District cadre, who had been absorbed in the Heads of Department as per Resolution dated 7.3.1996, to their parent cadre, i.e., District cadre in Forest Department consisting of posts in the offices of D.F.O. and Offices of the Conservator. This is only the objection, but no cogent reason has been ascribed as to the difficulties in implementing the resolution dated 7.3.1996 when the P.C.C.F./C.C.F. (Wild life) was declared as separate Heads of Department equivalent in status and responsibility with that of the P.C.C.F/C.C.F., Orissa, under the administrative control of the Forest and Environment Department and O.Ps. 7 to 14, i.e., the applicants, were merged in the grade/cadre of the newly established Heads of the Department and when there was categorical mention that it would not affect in any manner the ministerial staff of the Heads of the Department under the control of the P.C.C.F. In O.J.C. No. 6498/99 the Petitioners tried to make out a case that their seniority will be affected, but no material was produced before this Court to justify their contention as to how they will be affected if the O.Ps. would come to the cadre of the Heads of the Department, i.e. P.C.C.F/C.C.F. (W.L.). because pursuant to the Govt. Resolution dated 11.7.1995, the P.C.C.F (W.L.) had been conferred to exercise all the powers of a Heads of Department with regard to appointment, disciplinary control, transfer and posting, etc. of all such staff of different cadres of his office. Therefore, there is nothing to substantiate the contention of the writ Petitioners that the Petitioners in O.J.C. No. 6498/1999, who are O.Ps. 1 to 6 in O.J.C. No. 10061/1999 and are the staff of the other Heads of Department controlled by the P.C.C.F., would in any way be affected. The contention is based upon unfounded apprehension only. On the other hand, the finding of the Tribunal shows that the staff of the Officer of the P.C.C.F. (Wild Life) after their absorption in the cadre of the Heads of the Department shall remain as separate cadre and shall not be merged in the common cadres under the administrative and disciplinary control of the Principal Chief Conservator of Forests, Orissa.

From the Resolution dated 18.9.1997, it further appears that the Govt. had taken a decision to reverse the decision taken in the Resolution dated 7.3.1996 on the representation of the Orissa Karmachari Sangram Samiti and the Orissa Heads of Department Ministerial Officers Association and on the suggestion given by the P.C.C.F. However, no cogent reason has been ascribed by the Govt. as to how the absorption of the opposite parties, i.e., applicants before the Tribunal, will in any manner affect the promotional prospect of O.Ps. 1 to 6 in O.J.C. No. 10061/1999 and the Petitioners in O.J.C. No. 6498/1999 in view of the order of the Tribunal and more particularly the observation that the staff of the office of the Principal Chief Conservator of Forests (Wild Life) after their absorption in the cadres of the Heads of Department shall remain as separate cadres and shall not be merged in the common cadres under the administrative and disciplinary control of the Principal Chief Conservator of Forests. As per the Resolution dated 11.7.1995, the Principal Conservator of Forests (Wild Life) shall exercise all powers of Heads of the Department in regard to appointment, disciplinary control, transfer and posting, etc. of all such staff of different cadres of his office. As such, the points raised by the Petitioners in both the writ Petitioners are answered accordingly.

In view of the above, we do not find any infirmity, irregularity/manifest error of law and/or any room to interfere in the judgment dated 14.5.1999 passed by the Orissa Administrative Tribunal, Bhubaneswar, in Original Application No. 2129/1997. Accordingly, the judgment of the Tribunal is confirmed.

However, since the time period for implementation of the impugned resolution dated 7.3.1996 (Annexure-7 in the O.A.), as has been directed by the learned Tribunal in the impugned judgment, has expired since long and the same has not yet been implemented in letter and spirit, the State Government is directed to implement the same in its entirety within a period of six weeks from today.

Both the writ petitions are accordingly dismissed. There will be no order as to cost.

N. Prusty, J.

I agree.