Padmalaya Patra vs State Of Odisha And Others
2023 Latest Caselaw 4557 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                        W.P.(C) No.10164 of 2022

      This is an application under Articles 226 and 227 of the
Constitution of India.

      Padmalaya Patra                          ....            Petitioner

                                    -versus-
      State of Odisha and others               ....     Opposite Parties

     For Petitioner             :               Ms. Deepali Mahapatra,
                                                             Advocate

     For Opp. Parties           :                      Mr. T. Pattanaik,
                                         learned Addl. Standing Counsel


                              CORAM:
                      JUSTICE A.K. MOHAPATRA
                              JUDGMENT

Date of hearing : 19.04.2023 | Date of Judgment : 27.04.2023

A.K. Mohapatra, J.

1. Heard Ms. Deepali Mahapatra, learned counsel for the Petitioner

as well as Mr.T.Patnaik, learned Additional Standing Counsel for the

State-Opposite Parties. Perused the Writ Petition as well as the

documents annexed thereto.

2. The present Writ Petition has been filed with a prayer for a

direction to the Opposite Parties to permit the Petitioner to continue in // 2 //

the Cuttack District and quash the order dated 24.10.2021 under

Annexurre-3 in relation to the Petitioner as well as order dated

27.01.2022 under Annexure-4.

3. It is submitted by Ms. Deepali Mahapatra, learned counsel for the

Petitioner that the Petitioner, who was initially appointed as a Women

Constable through a recruitment process and was posted in the Office of

Superintendent of Police, Puri vide order dated 04.05.1999. She further

contended that during her service career, for her performance, she was

rewarded by the Superintendent of Police, Puri vide Office Order No.879

dated 14.05.2004. While she was working under the Superintendent of

Police, Puri, the Petitioner was transferred from Puri to Cuttack district

vide order dated 28.08.2004 and relieved with effect from 07.09.2004.

Pursuant to such transfer order, the Petitioner joined as Constable in the

Office of the Superintendent of Police Cuttack. Till date she is continuing

in Cuttack district. However, in view of the restructuring, she has been

working under the Commissionerate of Police of Twin City,

Bhubaneswar-Cuttack. She further contended that pursuant to the

Notification issued by the Government of Odisha, Commissionerate of

Police was created in the Twin city of Bhubaneswar-Cuttack with effect

from 01.01.2008. Therefore, the Petitioner, who was earlier transferred

from Puri to Cuttack in the year 2004 and was continuing in Cuttack // 3 //

district was allowed to continue to work as Women Constable under the

Commissionerate of Police after 01.01.2008. She further contended that

the Petitioner has been working since 13 years in the newly created

Commissionerate of Police in the twin city of Bhubaneswar-Cuttack.

4. The dispute involved in the present Writ Petition arose when a

Notification was issued by the Office of Opposite Party No.3 vide letter

No.29725 dated 16.08.2021 with regard to determination and fixation of

parent district in respect of Police Constables. For better appreciation, the

entire Notification dated 16.08.2021 under Annexure-2 has been quoted

herein below.

      "No.IF-12-2021/ 29725/Pers-I                   Dated
16.08.2021

To All District Suptds of Police/Suptds of Railway Police, Cuttack/Rourkela/Dy. Commissioner of Police, Bhubaneswar/Cuttack/Dy. Commissioner of Police (H.Qrs) BBSR-CTC, Bhubaneswar.

Sub: Determination of Parent District in respect of Constables.

xxxxx

This is to intimate that Rule-3 of the Odisha Police Service (Method of Recruitment and Conditions of Service of Constables) Order, 2010 specified that "The posts of Constables in Civil Police in each Police District shall constitute a separate cadre for the purpose of recruitment, seniority and promotions."

// 4 //

In order to determine the Parent cadre of Constable, following principles may please be adopted for determining Parent cadre of a Constable.

1. The District in which one Constable has been initially appointed by way of Direct recruitment/Rehabilitation Assistance Scheme/Meritorious Sports Person shall be his/her parent District. He/She shall be entitled to be posted in District ill he/she continues in the rank of Constable.

2. The District in which one Sepoy/Constable of OSAP has been appointed as Constable by way of Redeployment as per Office Order issued from State Police Headquarters for redeployment from Battalions shall be his Parent District/cadre till he continues in the rank of constable.

3. After District Division w.e.f. 01.04.1993 and introduction of Police Commissionerate for twin Cities of Bhubaneswar and Cuttack w.e.f. 01.01.2008 and reorganization of Sundargarh District and Rourkela Police district during the year 2008, some Constables appointed in earlier undivided Districts and Khordha/Cuttack have been posted to Cuttack or Khurda or Sundargarh/Rourkela or UPD Cuttack or UPD Bhubaneswar. In such a case, the District in which these Constables have been posted after 01.04.1993 or 01.01.2008 as the case may be shall be treated as their Parent District till he/she continues in rank of constable.

4. After the Police circular Order No342/2013, some Constables have been allowed change of Cadre, by State Police Headquarters, to the District of their choice. Their Parent Cadre shall be treated as the District in which they have been absorbed on change of cadre.

5. It may be further noted that Lance Naik and Havildar posts are of District Cadre. The Constables are entitled for promotion to the rank of Lance Naik and Havildar in their Parent cadre only. Promotion of any Constable/Lance Naik to the rank of Lance Naik/Havildar in a District which is not his/her parent District is irregular and must be reviewed immediately.

// 5 //

It any Constable/Lanse Naik of one District has been posted/deputed (by whatever name) to another District and availed promotion to the rank of Lance Naik/Havildar in such (non Parent) District vacancy, he/she may be reverted to the rank in which/he/she was posted to deputation (non Parent) District. Thereafter, he/she may be repatriated to his/her Parent district immediately.

This issues with approval of DGP.

Sd/-dt.16.08.2021

I.G. of Police (Personnel)"

5. In view of the aforesaid Notification with regard to fixation of

Parent district, the Petitioner was communicated vide Order dated

24.10.2011 under Annexure-3 wherein it has been stated that the

Petitioner including 7 others Police Constables were asked to report

before the R.I., Cuttack UPD on 25.10.2021 positively to repatriate the

Petitioner and others named therein to their parent district. The

Petitioner approached the Commissioner of Police by submitting a

representation pursuant to an order passed by this Court in the earlier

Writ Petition bearing W.P.(C) No.34169 of 2021 which was disposed of

vide order dated 0911.2021. Accordingly the Petitioner submitted her

representation before the D.C.P. Cuttack. The D.C.P., Cuttack vide order

dated 27.01.2022 disposed of the representation rejecting the prayer of

the Petitioner. On perusal of the rejection order dated 27.01.2022 under

Annexure-4, this Court observed that the D.C.P. while considering the // 6 //

representation of the Petitioner has taken into consideration the State

Police H.Qrs Letter No.29725 dated 16.08.2021 and while interpreting

the said letter has come to a conclusion that the Parent district of the

Petitioner is Puri district and not the Cuttack UPD as claimed by the

Petitioner. Being aggrieved by the order dated 27.01.2022 passed by the

D.C.P., Cuttack rejecting the representation of the Petitioner under

Annexure-4 the Petitioner has approached this Court by filing the present

Writ Petition.

6. Learned Additional Standing Counsel on the other hand referring

to the State Police H.Qrs Letter dated 16.08.2021 under Annexure-2

submitted that a decision was taken at the Police H.Qrs level regarding

determination and fixation of Parent district in respect of Constables.

Such fixation of parent district is required keeping in view Rule 3 of

Odisha Police Service (Method of Recruitment and Conditions of Service

of Constables) Order, 2010. Rule 3 of the aforesaid order, 2010

prescribes that there shall be a separate cadre of the Constables in Civil

Police in each Police district and the same shall also constitute a separate

cadre for the purpose of their recruitment, determination of seniority and

while giving promotion.

7. Learned Additional Standing Counsel referring to Clause-1 of

Letter dated 16.08.2021 submitted that since the Petitioner was initially // 7 //

appointed under the Superintendent of Police, Puri in Puri district, her

parent district has been fixed as Puri district. Therefore, the authorities

have determined and fixed the parent district of the Petitioner as Puri

district. Accordingly, order under Annexure-4 dated 27.01.2022 was

passed. In such view of the matter, learned Additional Standing Counsel

submitted that the authorities have not committed any illegality while

repatriating the Petitioner to her Parent district i.e. Puri district.

8. Learned counsel for the Petitioner on the other hand referring to

the very same letter dated 16.08.2021 drawing the attention of this Court

to Paragraph-3 submitted that with effect from 01.01.2008, the parent

district of the Petitioner has been changed and Cuttack UPD is to be

treated as her parent district in view of the stipulation in Paragraph-3 of

the aforesaid letter. She further submitted that under Paragraph-3, it has

been prescribed that after division of the district with effect from

01.04.1994 and upon introduction of Police Commissionerate in the Twin

city with effect from 01.01.2008 and reorganization of Sundargarh and

Rourkela Police District during the year 2008, the Constables appointed

in the earlier undivided districts prior to 01.04.1993 and Khordha/Cuttack

have been posted to Cuttack or Khorda or Sundargarh/Rourkela or UPD

Cuttack or UPD Bhubaneswar. For fixation of their Parent District a

decision was taken at the State Police H.Qrs level and accordingly, it was // 8 //

decided that the district in which these Constables have been posted after

01.04.1993 or 01.01.2008, the same shall be treated as their parent

district till he/she continues in the rank of Constables.

9. In the aforesaid context, learned counsel for the Petitioner drawing

the attention of this Court to the Additional Affidavit filed on behalf of

the State-Opposite parties on 17.04.2023 submitted that a detailed

statement containing information pursuant to the direction of this Court

has been filed along with such Additional Affidavit. On perusal, the said

statement reveals that many Constables continuing in Cuttack UPD

whose parent cadre are as follows:

             Sl.No.2              Jajpur

             Sl.No.5              Kendrapara

             Sl.No.7              Kendrapara

             Sl.No.8              Bhadrak

             Sl.No.9              Mayurbhanj

             Sl.No.10             Khordha

             Sl.No.12             Berhampur

             Sl.No.13             Bhubaneswar

             Sl.No.18             Dhenkanal

The aforesaid persons are still continuing under the Cuttack UPD. She

further contended that although they were appointed initially under

various districts of the State of Odisha, however, they were transferred to // 9 //

Cuttack district and were continuing in Cuttack district as on 01.01.2008.

Therefore, they have been allowed to continue under the Cuttack UPD

after formation of Commissionerate of Police in the Twin City. She

further contended that although the aforesaid persons were initially

appointed in respect of other districts, they have not been disturbed and

they have not been repatriated whereas the Petitioner has been transferred

from Cuttack to Puri district, which is contrary to Paragraph-3 of the

letter under Annexure-2.

10. On a careful consideration of the letter dated 16.08.2021 under

Annexure-2, this Court observed that the said letter was issued for

determination of parent district in respect of the Constables although the

general principle contained in Paragraph-1 reveals that Constables, who

have been appointed to a particular district, such district to be their parent

district till he/she continues in the rank of Constable. However, an

exception has been carved out in paragraph-3 in the said letter. Thus,

probably keeping in view the difficulties arose in fixation of parent

district and after reorganization of the State and creation of new districts

and subsequent creation of Commissionerate of Police for twin city of

Bhubaneswar-Cuttack and reorganization of Sundargarh district and

Rourkela Police district during the year 2008, the exception carved out in

Paragraph-3 is required to be interpreted in such a manner so that the // 10 //

same can be adhered to in uniform manner and effectively. On a close

scrutiny of the provisions contained in Paragraph-3 of the letter dated

16.08.2021, this Court is of the considered view that initially there was

13 districts in the State and after creation of new districts making it a

total of 30 districts, the persons who were appointed previously under

the undivided districts were posted to the newly created district.

Therefore, difficulties arose for fixation of parent district in respect of

those newly created districts. Accordingly, a decision was taken to allow

them to continue in the district in which they were posted after

01.04.1993 as their parent district.

11. Similarly, when the Commissionerate of Police was created in the

twin city of Cuttack and Bhubaneswar with effect from 01.01.2008,

Police personnel, who were working then in the Cuttack district or

Bhubaneswar Police district were allowed to continue as such for several

years after creation of the Commissionerate of Police. Therefore, the best

possible interpretation of Paragraph-3 of the letter dated 16.08.2021 is

that the Police Constables, who were continuing after creation of

Commissionerate of Police with effect from 01.01.2008 are to continue

under the UPD Cuttack or Bhubaneswar, as the case may be, and such

UPD shall be treated as their parent district.

// 11 //

12. Considering the submission made by the learned counsel for the

Petitioner and upon comparing with the statement attached to the

Additional Affidavit, the argument advanced by the learned counsel for

the Petitioner has sufficient force. Further, it appears that the said para-3

of the letter has been given effect to in the manner as has been held by

this Court.

13. In view of the aforesaid analysis of the facts as well as letter dated

16.08.2021, this Court has no hesitation in coming to a conclusion that

the Parent district of the Petitioner is Cuttack UPD with effect from

01.01.2008 in view of the letter dated 16.08.2021 and the Petitioner be

allowed to continue in Cuttack UPD. Accordingly, the impugned order

dated 24.10.2021 under Annexure-3 is held to be unsustainable in law

and the same is hereby quashed so also the order under Annexure-4. It is

needless to mention here that necessary consequences will follow

pursuant to the quashing of the order under Annexure-3 dated 24.10.2021

and Annexure-4.

14. Accordingly, the writ petition stands allowed. However, there shall be no order as to cost.

( A.K. Mohapatra ) Judge Orissa High Court, Cuttack The of April, 2023/ RKS