Kamdev Mohanty vs State of Orissa and Another

K.B. Panda, J.—This is an application under Article 226 of the Constitution of India for quashing Annexure 4 under which the Petitioner has been transferred from the post of Grade II Assistant Accountant in the Director of Bureau of Statistics and Economics (hereinafter referred to as �Bureau�) to the post of Head Clerk-cum-Accountant, District Kalahandi and for restoration of the Petitioner to his former post.

The Petitioner was initially appointed as Lower Division Statistical Clerk in the office of the District Statistical Office, Cuttack on 22-7-1959. He was promoted to the rank of Upper Division Statistical Clerk on 19-3-1963 and was posted as such under the District Statistical Officer, Sambalpur. Again he got promotion to a higher rank, namely, Head Clerk-cum-Accountant on 29-6-1967 and was posted as such under the District Statistical Officer, Sundergarh. This post of Head Clerk-cum-Accountant is the highest post in the District cadre and there is only one such Post in every district. The ministerial staff of all ranks, namely, Lower Division, Upper Division and Head Clerk etc. in all the districts constitute one cadre with a combined gradation list. After a ministerial servant becomes Head Clerk-Cum-Accountant, he has no further prospects of promotion in the district cadre. The Petitioner alleges that being a graduate and a promising Assistant working as Head Clerk from 29-6-1967, he made representations to the Director of the Bureau opposite party No. 2, for absorbing him in the Bureau as Grade II Accountant-Assistant which is an equivalent post to that of Head Clerk-cum-Accountant in the District cadre with equal scale of pay. This the Petitioner did mainly on two considerations; firstly as a man of Cuttack he preferred the office of the Bureau which was located at Cuttack (upto 31-8-1971) and secondly, in the Bureau there were many promotional prospects. Petitioner�s last representation in that regard was dated 17-7-1971. He was selected for the post of Accountant. Assistant under opposite party No. 2 and was issued the appointment order No. 8748 dated 17-7-1971 (Annexure-2).

Accordingly, the Petitioner joined the office of opposite party No. 2 as Grade II Accountant-Assistant on 21-8-1971 and thus "became a full-fledged member of the Bureau cadre which is completely different from the District cadre" as alleged in his petition. There are two separate gradation lists one for the Bureau staff and the other for the District staff. The Petitioner�s position in the gradation list of the Bureau staff is at serial No. 11 (Annexure-3).

While the Petitioner had put in four years of service in the Bureau, opposite party No. 2 passed the impugned order dated 5-9-1975 transferring and posting him as Head Clerk-cum-Accountant in the office or the District Statistical Officer, Kalahandi and Shri Dandapani Das who (not a party in this case) was Head Clerk in the District cadre was appointed as Grade II Accountant in the Bureau and is continuing as such. Some instances have also been given to show how the Petitioner has been discriminated. The Petitioner�s grievance is that his impugned transfer to the District Office as Head Clerk-cum-Accountant is not on deputation nor on foreign service and that opposite party No. 2 has no jurisdiction to transfer him outside his cadre, thereby obliterating his future prospects of promotion for good.

In the counter affidavit filed on behalf of the two opposite parties, the allegations in the petition have been answered saying that the initial appointment of the Petitioner under Annexure 2 is "actually a transfer and not a fresh appointment" ; that inclusion of the name of the Petitioner in the gradation list of the Bureau is a mistake; that he has been transferred to a comparable post in the exigencies of public service; and that the instances cited are all distinguishable. This is how the case of the Petitioner has been met in the counter affidavit.

However, a sympathetic attitude was taken on his second representation dated 17-3-1971 and he was brought to the office of the Principal, Statistical Training Institute which is a subordinate office under the Director, B. S. E. located inside the premises of the then Bureau Headquarters as Accountant in the same scale of pay as the post was identical with that of the Head Clerk-cum-Accountant. The appointment order as Grade II Accountant (Annexure 2) was actually one of transfer since there was no such post sanctioned for the office of the Principal, S. T. I.

Even assuming that the Petitioner was appointed in the Bureau of Statistics and Economics as Grade II Accountant, he retained his lien in the District cadre had not generated any claim for inclusion in the Bureau Headquarters cadre.

x x x

The office of the Principal, Statistical Training Institute is a subordinate office of the Bureau of Statistics and Economics comparable with the Office of the District Statistical Officers and there being no post of Grade II Accountant Assistant sanctioned for that office; the appointment order issued by opp. party No. 2 is virtually one of transfer. On the other hand the designation of the posts sanctioned for the office of the Principal, Statistical Training Institute and the pay scales attached to the posts are identical to those of the District Statistical Offices.

x x x

The office of the Principal, S. T. I. is not a part of the Bureau of Statistics and Economics as has been explained above, hence the Petitioner�s claim that he became a regular and full-fledged member of the Bureau cadre is not correct. The Statistical Training Institute was functioning within the same premises of the Bureau of Statistics and Economics and the persons were housed in the same premises. Because of this and through oversight, the Petitioner�s name was included in the cadre list which is not yet finalised. This, however, does not entitle the Petitioner to claim his position in the cadre list without valid appointment order for a corresponding post in the Bureau of Statistics and Economics. This anomaly was detected later and steps are being taken to revise the gradation list.

x x

This was done in the public interest and this was simply a case of reversion to Petitioner�s former post without any reduction in rank/grade not on any loss in emoluments to

Over the instances given in the petition, it is stated that the case of those persons was different inasmuch as some were taken directly on selection and not brought over from the subordinate offices. It is specifically asserted that "there is no interchangeability of post in any grade between the subordinate offices and the Bureau cadre". However, it is admitted that "some appointments through transfers were made in a limited number of cases to the posts bearing identical scales of pay from the District Officers to Bureau and vice versa on temporary basis in the interest of public service. In the meantime, however, Government have decided that 25% of the vacancies in the post of Grade II Assistants in the offices of Heads of Departments shall be filled up by promotion of U. D. Clerks of District and subordinate offices. In view of the fact that the Petitioner is a confirmed U. D. Statistical Clerk belonging to District Office, his chances of promotion to the cadre of the Bureau of Statistics and Economics in course of time are not rules out. Since the Petitioner was never appointed in the Bureau cadre as stated in the foregoing paras he cannot claim his future promotion under the Bureau cadre. His appointment in the office of the Principal. S. T. I. in an identical post was merely a case of transfer." A rejoinder to the counter affidavit and a counter to the rejoinder have been filed, but no new materials have been introduced which deserve mention.

The sole point for consideration is whether the initial appointment of the Petitioner under Annexure 2 was a fresh appointment as claimed by him or a mere transfer as stated in the counter affidavit. Annexure 2 runs thus:

Office of the Director, Bureau of Statistics and Economics, Orissa. 0.0. No. 8748/BSE/DMS- 10/70 Dt. Cuttack the 17th July, 1971.

In supersession of this 0.0. No. 7144 dt. 18-6-1971, Sri Kamdev Mohanty, Head Clerk-cum-Accountant. Office of the District Statistical Officer, Sundargarh is appointed as Grade II Accountant on his own pay in the scale of Rs. 125-5-130-6-160-10-190/-, and posted as such in the office of the Principal, Statistical Training Institute, Cuttack under Bureau of Statistics and

Economics, Orissa against one of the posts continuance of which was last sanctioned in G. O. No. 3691/F. dated 18-5-1971 with effect from the date of his joining.

The appointment is purely temporary and can be terminated at any time without notice and without assigning any reason therefor.

Sd. S. B. Misra

for Director.

(The italics are ours)

The impugned annexure 4 which is undoubtedly an order of transfer has been differently couched and runs thus:

Shri Kamadeb Mohanty, Accountant, working in the office of the Principal, Statistical Training Institute is transferred and posted as Heard Clerk-cum-Accountant in the scale of Rs. 320-8-352-10A02/EB12-450/- in the office of the D. S. O., Kalahandi in the place of Sri Harekrishna Dash, Head Clerk-cum-Accountant transferred.

Annexure 2 envisages that the Petitioner was appointed to a new post. The expression used there is "appointment" and not "transfer" as in annexure 4. Further, the last clause namely, "the appointment is purely temporary and can be terminated at any time without notice and without assigning any reason therefor", indicates that it is a fresh appointment and not a continuance of any old appointment. Such a clause is only compatible with a new appointment and not with an old one. Therefore, a reading of Annexure 2 does not at all give the impression that it is a transfer only and not a fresh appointment. The expressions used under annexure 4 which is a transfer is quite different and it is said that Sri Kamdev Mohanty, Accountant, working in the office of the Principal, Statistical Training Institute "is transferred" and posted as Head Clerk-cum-Accountant. It needs no ingenuity to see the difference between the two. Therefore the explanations offered in the counter affidavit explaining that it was in fact a transfer in face of Ext. 2 is utterly unacceptable.

Secondly, it is also admitted in the counter affidavit that -

through oversight, the Petitioner�s name was included in the cadre list of the Bureau which is not yet finalised.

xx xx xx xx

This anomaly was detected later and steps are being taken to revise the gradation list.

This is an additional ground to hold how the Petitioner since his joining the Bureau has been taken to be a member of the staff of the Bureau. The explanation that it is a mere transfer on the same scale of pay is of no consequence in the present context if his initial entry into the Bureau was not by way of transfer but by way of appointment.

In view of the admitted documentary evidence, i. e. Annexure -2 and the gradation list annexure 11, there is no scope for a finding that in fact the Petitioner had been transferred while he got into the Bureau and, therefore, his transfer under Annexure- 4 to a different cadre, where the prospects are admittedly nil cannot be upheld. This view of ours gains support from a judgment of this Court in the case of Bamadeb Misra v. State of Orissa and Ors. 1973 S.L.J. 378, which following the principle laid down by their Lordships of the Supreme Court in Chief Secretary of Mysore v. S. O. Chandraih2, says that when the order of appointment is clear, unambiguous and self-contained, an interpretation foreign to the explicit meaning nor any condition can be engrafted into it.

Accordingly, we allow the writ petition and quash annexure 4 and direct that the Petitioner be restored to his former post. However, there will be no order as to costs.

R.N. Misra, J.

I agree.

Petition allowed.