Orissa High Court
Smt. Madhumita Das vs The Collector on 18 March, 2021
ORISSA HIGH COURT, CUTTACK.
W.P.(C) No.14217 of 2019
With
W.P.(C) No.14219 of 2019
With
W.P.(C) No.14222 of 2019
Applications under Article 226 of
the Constitution of India.
----------
In W.P.(C) No.14217 of 2019
Smt. Madhumita Das ... Petitioner
Versus
The Collector, Khurda & Others ... Opposite Parties
With
In W.P.(C) No.14219 of 2019
Smt. Madhumita Das ... Petitioner
Versus
State of Orissa & Others ... Opposite Parties
In W.P.(C) No.14222 of 2019
Smt. Madhumita Das ... Petitioner
Versus
State of Orissa & Others ... Opposite Parties
For Petitioners : M/s. S.K. Das
P.K. Behera, N. Jena
For Opp. Party Nos.1 & 2 : Mr. P.P. Mohanty,
Learned AGA
For Opp. Party No.3 : M/s.P.K. Panda, D. Misra,
For Opp. Party No.4 : Mr.S.K. Nath
----------
PRESENT :
THE HONOURABLE MR. JUSTICE BISWANATH RATH
---------------------------------------------------------------------------------------------------
Date of hearing & Date of Judgment : 18.03.2021
---------------------------------------------------------------------------------------------------
Biswanath Rath, J. Since all these writ petitions involve same cause
of action, on consent of parties all these matters are heard together
and decided by this common judgment.
2. Short background involved in all these cases are that
the Petitioners were initially appointed as NMR employees under
Talcher Municipality. Subsequently their services were regularized
in the post of Tax Collector in the same Municipality. The order
vide Annexure-1 also discloses that the services of the number of
candidates including the Petitioners working in the Municipality as
Tax Collector are regularized in order of merit. It is alleged that
during discharging their duties with utmost satisfaction of the
Authority, the Petitioners involving all writ petitions were served
with an order No.13953/HUD dated 6.08.2019/HUD-MUN-ADM-
11619 vide Annexure-2 regarding their deployment in the Hindol
NAC in the District of Dhenkanal on deputation basis for smooth
management of the Office work at Hindol N.A.C. As a consequence
of which, on the same date by the order vide Annexure-3 the
Executive Officer, Talcher Municipality relieved the Petitioners
involved herein from their place of posting in Talcher Municipality.
Being aggrieved with such action the Petitioners have filed
these writ petitions seeking direction from this Court to quash the
order vide Annexure-2 and pass appropriate direction.
3. In entertaining these writ petitions this Court by its
order dated 16.08.2019 issued notice to the Opposite Parties.
However, during pendency of the writ petitions by subsequent
order dated 5.03.2020 this Court as an interim measure directed,
no coercive action shall be taken against the Petitioners till 23rd
March, 2020. There was an attempt for modification of the interim
order, but however, which has been turned down by this Court by
order dated 10.09.2020.
4. On their appearance, the Opposite Party no.1 filing
counter affidavit attempted to justify their stand. By way of
rejoinder affidavit, the Petitioners have brought to the notice of this
Court a correspondence being issued by the Chairperson, Notified
Area Council, Hindol at Annexure-7, which discloses the inability
of the N.A.C, Hindol in making payment to the Petitioners due to
financial constrained at their end. It is also intimated therein that
none of the Petitioners have joined at Hindol after their deputation
made to the Hindol, N.A.C.
5. Mr. Das, learned counsel for the Petitioners though did
not dispute to the fact that there has been a decision at the level of
the Government to have a cadre called "Odisha Municipal Finance
Service Cadre" involving the persons like that of the Petitioners,
but however, taking this Court to the plea of the Opposite Party
No.1 through paragraph nos.5 & 8 contended that as on date there
is no finalization of such cadre by the Government. It is, in this
view of the matter, Mr. Das, learned counsel for the Petitioners
contended that for no preparation of the cadre rule as of now, the
services of the Petitioners under the Talcher Municipality and for
the conditions given, the Petitioners has to be governed by the
Talcher Municipality.
Mr. Das, learned counsel for the Petitioners, therefore,
contended that the deputation order being passed by the Authority
without having competency should be held illegal and the period
spent by the Petitioners in the meantime, should be regularized
and for disturbing the Petitioners on the basis of an incompetent
order, Mr. Das, learned counsel for Petitioners contended that on
their own submission of the N.A.C, Hindol, it has already indicated
that neither the Petitioners have joined in their Office, nor they are
in a position to make payment to the Petitioners. In the
circumstance, Mr. Das, learned counsel for Petitioners thus prayed
this Court for interfering with the impugned orders.
6. Mr. Mohanty, learned AGA referring to the averments
made in paragraph nos.5 to 8 submitted that for the decision of
the Government to have a common cadre involving the Local Fund
Services namely the "Odisha Municipal Finance Service Cadre",
there is no wrong in issuing the impugned orders and the
Petitioners, if have not joined pursuant to such direction, they are
to suffer for their own latches.
7. Mr. Panda, learned counsel for the Talcher
Municipality, accordingly, stated that for the decision of the
Government, the Authority of the Talcher Municipality has done
the same, but however, he admitted the claim of the Petitioners
that the "Odisha Municipal Finance Service Cadre" is yet to see the
light of the day.
8. Considering the rival contentions of the Parties, this
Court finds, there is no denial to the fact that there is no such
cadre namely "Odisha Municipal Finance Service Cadre" as of now,
which makes it clear that there is no existence of common cadre.
Now coming to the claim of the Parties, this Court finds, so long as
common cadre rule is not framed, control over the services of the
Petitioners lies on the Municipality and thus while observing that
the deputation order involved herein becomes bad, this Court also
observes, the Petitioners are deemed to be continuing under the
jurisdiction of Talcher Municipality. This Court observes, the
impugned order vide Annexure-2 involving all the writ petitions
being passed by an Authority outside the Talcher Municipality
becomes bad in law. This Court here, taking into account the
statement of the State through paragraph nos.5 to 8 of the counter
affidavit, finds, the State Government in its counter affidavit has a
clear admission of not having the cadre namely "Odisha Municipal
Finance Service Cadre". In this view of the matter this Court while
setting aside the order vide Annexure-2, also sets aside the relieve
order involving the Petitioners vide Annexure-3. It is, at this stage
of the matter, taking into account the interim order passed on
5.03.2020 where this Court has directed, there shall be no coercive
action involving the Petitioners, this Court on the setting aside of
the orders vide Annexures-2 & 3, directs, the Petitioners may be
deemed to be continuing in the Talcher Municipality and for they
are not being able to discharge their duty involving this period,
such period involved may be adjusted towards admissible leave
and payment shall be made accordingly by completing the entire
exercise within a period of two months. All the Petitioners in the
meanwhile will be entitled to current salary forthwith.
9. All the writ petitions succeed to the extent indicated
hereinabove, but however, there is no order as to cost.
.............................
(Biswanath Rath, J.)
Orissa High Court, Cuttack.
The 18th day of March, 2021/Ayaskanta Jena, Sr. Steno.
