Orissa High Court
Kantilata Naik vs State Of Odisha & Others on 22 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.13437 of 2023
An application under Articles 226 and 227 of the
Constitution of India.
Kantilata Naik . Petitioner
Ms. S. Patnaik, Advocate
-versus-
State of Odisha & others . Opp. Parties
Mr. I. Mohanty, A.S.C.
Ms. B.K. Pattanaik, Advocate
(For Intervenor)
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing : 14.08.2023 | Date of Judgment: 22.08.2023
______________________________________________________
A.K. Mohapatra, J. :
1.
The Petitioner who is working as a Forest Guard has filed
the present writ application to quash the letter dated 17.04.2023
under Annexure-1 issued by the Opposite Party No.4 thereby
rejecting the representation of the Petitioner and further for a
direction to the Opposite Parties to include the name of the
Petitioner in the final gradation list dated 19.04.2023 issued by the
Opposite Party No.4 under Annexure-13 to the writ application and
further to fix the seniority of the Petitioner keeping in view the
seniority of the similarly situated other candidates.
// 2 //
2. The factual backdrop of the writ petition in gist is that the
Petitioner was initially appointed as a Forest Guard on 17.11.2007
under the Angul Forest Division. It is pertinent to mention here that
the Petitioner was appointed on being duly selected through a
recruitment examination. After her selection, she was appointed
asked to undergo training at the Training School in Angul. Upon
completion of such training in the Forest Training College at
Angul, the Petitioner joined as a Forest Guard under the Angul
Forest Division. Initially, the Petitioner was appointed on
contractual basis. Upon completion of a continuous service of 6
years, the Petitioner was brought over to the regular establishment
in the year 2013 which is evident from the service book of the
Petitioner.
3. While working as a Forest Guard under the Angul Forest
Division, the petitioner submitted a representation to the Opposite
Party No.2 for Inter Division Transfer from Angul to City Forest
Division, Bhubaneswar. Upon due consideration of such
representation the Opposite Party No.2 vide order dated 02.07.2015
transferred the Petitioner from Angul Forest Division to City Forest
Division. In her transfer order dated 02.07.2015, the Opposite Party
No.2 has categorically mentioned that the seniority of the Petitioner
would be governed in terms of the Office Memorandum No.23849
// 3 //
dated 23.11.2017. Pursuant to such transfer order under Annexure-2
the Petitioner joined in City Forest Division, Bhubaneswar on
13.07.2015 and thereafter she was posted in the Range Office at
Cuttack. Since such date of joining the Petitioner has been
discharging her duties to the satisfaction of the higher authorities.
4. In the writ petition it has been stated that the Opposite Party
No.2 issued the circular guideline dated 23.11.2007 under
Annexure-4 and the same contains guidelines for cadre
management of Forest Guards. In the aforesaid circular, it has been
specifically enumerated that the post of Forest Guard belongs to
Divisional Cadre as per Rule 72 of the Odisha Forest Code, 1979.
Further, it has been specifically stipulated in the aforesaid guideline
that ordinarily Forest Guards cannot be transferred to a place
beyond their division. However, under exceptional circumstances
transfer is permissible on the request of the Forest Guard subject to
the condition that if the Forest Guard seeking transfer beyond his/
her division, in such eventuality her seniority shall be placed at the
bottom of the gradation list that is as the Junior most Forest Guard
in the Transferee Division. Moreover, once the Inter Division
Transfer is given effect to, the Forest Guard cannot again request
for reversion to either the parent division or to any other division.
// 4 //
5. In view of the specific guidelines contain in circular dated
23.11.2007 under Annexure-4, the Petitioner's Seniority after
transfer was fixed as the Junior most in the cadre of the new
division i.e. City Forest Division, Bhubaneswar. In such view of the
matter, it has been specifically pleaded in the writ petition that the
Petitioner's service was merged with the cadre of Transferee City
Forest Division, Bhubaneswar and accordingly the seniority list of
the City Forest Division, Bhubaneswar was re-drawn indicating the
name of the Petitioner therein at the bottom i.e. at Serial No.38.
6. While this was the position, the Opposite Party No.2 issued
letter dated 11.06.2020 to all DFOs of the State instructing them to
relieve all the Foresters and Forest Guards who have been
transferred to other Division from their parent division with a
further direction to relieve the Foresters and Forest Guards to join
in their parent division immediately. Being aggrieved by such
decision of the Opposite Party No.2, the Petitioner filed a
representation dated 15.06.2020 before the Opposite Party No.2.
Since, the representation of the Petitioner was not being considered
by the Opposite Party No.2, the Petitioner approached this Court
earlier by filing W.P.(C) No.14505 of 2020. The said writ petition
was disposed of on 20.06.2020 by a Coordinate Bench with a
direction to the PCCF, Odisha (Opposite Party No.2) to consider
// 5 //
the representation of the Petitioner. After disposal of the writ
petition the Petitioner approached the Opposite Party No.2. The
Opposite Party No.2 considered the representation and rejected the
same vide his order dated 21.07.2020.
7. Being aggrieved by order dated 21.07.2020 passed by the
Opposite Party No.2, the Petitioner again approached this Court by
filing W.P.(C) No.17797 of 2020. After hearing the learned
counsels appearing for the Parties at the stage of admission, a
Coordinate Bench of this Court vide order dated 13.08.2020 passed
in I.A. No.8466 of 2020 directed stay of operation of order under
Annexure-5 as well as Annexure-6 with a further direction to the
Opposite Parties to allow the Petitioner to continue in the City
Forest Division, Bhubaneswar till disposal of the writ petition. On
the basis of the aforesaid interim order dated 13.08.2020, the
Petitioner has been continuing as a Forest Guard in the City Forest
Division, Bhubaneswar.
8. While the matter stood thus, a new rule was enacted which
is known as Odisha Sub-Ordinate Forest Service (Method of
Recruitment and Conditions of Service of Foresters) Amendment
Rules, 2020. Under the aforesaid amended rules a draft common
gradation list of Forest Guard belonging to City Forest Division,
Bhubaneswar was published on 30.06.2021 and the same was
// 6 //
notified on 14.07.2021. It is relevant to mention here that in the said
gradation list published under the Amendment Rule, 2020, the
name of the Petitioner finds place at Serial No.37. While reflecting
the date of appointment as 19.11.2007 in the aforesaid gradation
list, in the remarks column it was indicated that the seniority of the
Petitioner is subject to the result of the W.P.(C) No.17797 of 2020.
9. Thereafter, another draft common gradation list of Forest
Guard, Bhubaneswar Circle was published on 31.08.2021. In the
said gradation list the Petitioner's name finds place at Serial
No.303. Since, the name of the Petitioner was kept much below in
the common gradation list the Petitioner filed a representation
before the Opposite Parties for reconsideration. Thereafter, another
revised final common gradation list of Forest Guards belonging to
City Forest Division, Bhubaneswar was published on 01.10.2021.
In the said list, the seniority of one Shri Prasanna Kumar Rout, Smt.
Manini Mishra and Smt. Madhusmita Mohanty has been fixed in
the revised final gradation list from the date of their appointment as
Forest Guard.
10. It has been stated in the writ petition that the above named
three persons are similarly placed with the petitioner that is they
have been transferred from their parent division to City Forest
Division, Bhubaneswar. It has also been stated that the seniority of
// 7 //
the aforesaid persons has been maintained as per Rule 12(3) of the
Amendment Rules, 2020. However, the Petitioner was really
shocked to learn that her name has been deleted from the aforesaid
revised final common gradation list.
11. During the pendency of the above noted W.P.(C) No.l7797
of 2020, another final common gradation list of Forest Guard of
Bhubaneswar circle was published on 01.03.2023 by the Opposite
Party No.4. In the said final common gradation list also the name of
the Petitioner does not find place. The aforesaid list was
communicated vide letter dated 20.03.2023 by the Opposite Party
No.4 to the Opposite Party No.3. Although, the Petitioner submitted
her objection to the above noted final gradation list on 24.03.2023,
the Opposite Party No.4 has been sitting over the matter without
taking a final decision on the objection of the Petitioner.
12. Challenging the inaction of the Opposite Party No.4, the
Petitioner again approached this Court by filing W.P.(C) No.10615
of 2023. This Court again disposed of the writ application by
directing the Opposite Party No.4 to consider the representation of
the Petitioner within six weeks. Further, while disposing of the writ
petition filed by the Petitioner this Court also directed that the
gradation list under Annexure-1 shall not be acted upon for a period
of six weeks.
// 8 //
13. After disposal of the above noted writ petition, the
Petitioner again approached the Opposite Party No.4. The Opposite
Party No.4 issued office order dated 17.04.2023 rejecting the
representation of the Petitioner. Thereafter, the Opposite Party No.4
issued the final common gradation list of Forest Guard,
Bhubaneswar (T) Circle dated 19.04.2023 excluding the name of
the Petitioner.
14. A counter affidavit has been filed on behalf of the State-
Opposite Parties. In the counter affidavit it has been stated on
behalf of the Opposite Parties that in compliance to this Court's
order, the Opposite Parties have considered the representation of
the Petitioner and upon such consideration the representation filed
by the Petitioner has been rejected by a speaking order and relying
upon the clarification issued by the office of the PCCF, Odisha vide
circular dated 11.11.2021. Accordingly, it was submitted that in
view of the Rule 12(3) of the Rules, 2020 the seniority of the
Petitioner is to be maintained in her parent cadre.
15. Additionally, it has been stated in the counter affidavit that
the Petitioner was originally appointed in the Angul Forest Division
and thereafter she was transferred to City Forest Division,
Bhubaneswar vide letter dated 02.07.2015 on her own request with
certain conditions with regard to her seniority. Knowing fully well
// 9 //
such conditions, the Petitioner had joined in the City Forest
Division, Bhubaneswar. Further, it has been stated that till 2020 the
Seniority of the Petitioner was being regulated in the City Forest
Division as per memo dated 23.11.2007 and accordingly her name
appeared in the final gradation list dated 01.01.2020 at Serial
No.38, that is, after taking into consideration her date of joining.
16. Further, it has been specifically averred in the counter
affidavit that the seniority of the Petitioner was being maintained as
per circular dated 23.11.2007 as the Junior most Forest Guard in
City Forest Division, taking into consideration her date of joining
on 13.07.2015. However, after the circular dated 23.11.2007 was
superseded by memo No.11447 dated 11.06.2020 of the PCCF,
Odisha, the Petitioner was reverted to her parent division vide
memo dated 24.06.2020 of the DFO, City Division. In the
meantime, the Cadre Management Circular on transfer policy of the
Forest Guards has been withdrawn by the PCCF, Odisha vide his
order dated 07.08.2020. Although, it has been stated in the counter
affidavit that pursuant to the interim order passed in W.P.(C)
No.17797 of 2020, the Petitioner is continuing in Bhubaneswar
City Forest Division till date. It has also been stated that the
inclusion of the Petitioner's name in the tentative gradation list
// 10 //
published on 14.07.2021 was purely tentative in nature and thus the
same does not confer any right on the Petitioner.
17. The counter affidavit further reveals that the final gradation
list of Forest Guards was published on 07.10.2021, wherein the
name of the Petitioner was placed at Serial No.302 basing on her
date of joining in City Division on 13.07.2015. Such placement in
the gradation list is in accordance with the circular dated
23.11.2007 of the PCCF, Odisha. However, pursuant to the
clarification from the PCCF, Odisha vide memo dated 28.09.2021
and clarification dated 11.11.2021 a Revised final common
gradation list of Forest Guards belonging to Bhubaneswar (T)
Circle as on 01.10.2021 was published. On 12.11.2021 such list
was communicated excluding the name of the Petitioner as he was
not absorbed in City Forest Division, Bhubaneswar. So far, the
seniority of the other three named persons are concerned, the same
were fixed in the revised final gradation list as per their date of
appointment as Forest Guard treating City Forest Division as their
parent division following the clarification dated 11.11.2021.
18. Additionally, it has also been contended in the Counter
affidavit that basing upon the revised final common gradation list of
Forest Guards dated 12.11.2021, three numbers of DPCs have been
convened in the meantime and a total of 42 numbers of Forest
// 11 //
Guards have been promoted to the rank of Foresters including the
above named three persons. Therefore, it is stated in the Counter
affidavit that the case of the Petitioner cannot be equated with the
case of the above named three persons. Moreover, the Petitioner has
been transferred to her parent division i.e. Angul Forest Division
vide memo dated 11.06.2020 in supersession of her transfer order
dated 02.07.2015.
19. The order dated 24.06.2020 has been challenged by the
Petitioner by filing W.P.(C) No.17797 of 2020 and pursuant to the
interim order passed therein by this Court, the Petitioner has been
allowed to continue in City Forest Division, Bhubaneswar. Thus, it
was argued by learned Additional Standing Counsel that the
rejection of the Petitioner's representation is not illegal and
arbitrary. He further contended that the Petitioner has been reverted
to her parent division in accordance with Rule 12(3) of the
Amendment Rules, 2020 and that although she was relieved from
the City Division, however, pursuant to the interim order passed by
this Court in the other writ application, the Petitioner has been
allowed to continue in service till date.
20. Heard Ms. Soma Pattnaik, learned counsel appearing for
the Petitioner, Mr. I. Mohanty, learned Additional Standing
Counsel for the State-Opposite Parties and Ms. B.K. Pattnaik,
// 12 //
learned counsel appearing for the Interveners. Perused the pleadings
of the respective parties as well as the materials on record.
21. Having heard the learned counsels appearing for the
respective parties, this Court observed that the Petitioner has been
continuing in service as a Forest Guard in the City Forest Division,
Bhubaneswar pursuant to the interim order passed by a Coordinate
Bench of this Court in W.P.(C) No.17797 of 2020. Such fact has
been admitted by all the appearing parties. With regard to joining of
the Petitioner, the factual position is also admitted by the appearing
parties, that is, the Petitioner was initially appointed under the
Angul Forest Division as Forest Guard on 23.11.2007. Thereafter,
on the request of the Petitioner, she was transferred beyond her
division to the City Forest Division, Bhubaneswar vide order dated
02.07.2015.
22. It is also not disputed by the parties that the transfer of the
Petitioner is an Inter Divisional Transfer pursuant to the circular
dated 23.11.2007 under Annexure-4 to the writ application. On a
careful reading of the circular under Annexure-4, this Court
observed that in Clause-3 of the circular Inter Divisional Transfer
of Forest Guards on own request are permissible in exceptional
cases. However, such transfer shall be subject to the condition that
in the transferee division the transferred Forest Guard shall be the
// 13 //
Junior most and he/she shall be kept under the existing Forest
Guards in the transferee division. Further, under Clause-4 the Forest
Guards are required to furnish an undertaking to the effect that they
shall not claim seniority on such Inter Divisional Transfer in the
Transferee Division and further once the Inter Divisional Transfer
is effected, he/ she shall not again request for reversion to neither
the parent division nor transfer to any other division.
23. On a careful analysis of the language employed in the
Circular dated 23.11.2007 under Annexure-4, this Court is of the
view that Inter Divisional Transfer is permissible and once the same
takes effect, the person under transfer shall merge in the transferee
division, however he/ she shall loose his/ her seniority and shall be
placed below the existing Forest Guards and once such Inter
Divisional Transfer is given effect to, the Forest Guard concerned,
cannot be reverted back to the parent division. In such view of the
matter, this Court has absolutely no doubt that the Petitioner has
been automatically absorbed in the City Forest Division,
Bhubaneswar, after she was transferred from the Angul Forest
Division vide order dated 02.07.2015 under Annexure-3 to the writ
application. Moreover, the office order under Annexure-3 clearly
reveals that the Seniority shall be regulated vide office memo dated
23.11.2007.
// 14 //
24. Learned Additional Standing Counsel in course of his
argument took a stand that since the Petitioner was not absorbed in
service of the City Forest Division, Bhubaneswar, she cannot claim
as a regular employee of the City Forest Division, Bhubaneswar
and therefore she has no right to claim for inclusion of her name in
the gradation list of the City Forest Division, Bhubaneswar. He
further contended that the three persons named by the Petitioner,
were absorbed as Forest Guards in the City Forest Division before
finalization of the gradation list. Since, the Petitioner was not
absorbed, the Opposite Parties have rightly vide their memo dated
11.11.2021 under Annexure-A/4 have taken a decision that the
seniority of the Petitioner shall be fixed in terms of Rule 12(3) of
the Rules, 2020 as they were not absorbed in City Forest Division.
25. Learned Additional Standing Counsel further referring to
letter dated 24.06.2020 under Annexure-E/4 contended that the
petitioner was repatriated to her parent division as she was not
absorbed in the City Forest Division, Bhubaneswar. Laying
emphasis on office order dated 07.08.2020 under Annexure-F/4,
learned Additional Standing Counsel further contended before this
Court that the executive instruction vide memo No.23849 dated
23.11.2007 has been withdrawn by order of the PCCF, Odisha
dated 07.08.2020. Therefore, the Petitioner has no right to continue
// 15 //
in the City Forest Division and accordingly her name cannot be
included in the final gradation list of the City Forest Division,
Bhubaneswar.
26. On a careful analysis of the aforesaid documents referred to
by the learned Additional Standing Counsel, this Court is of the
considered view that the order of repatriation was passed on
24.06.2020. Therefore, by then the circular dated 23.11.2007
permitting Inter Divisional Transfer was still in force and staring at
the DFO, City Forest Division, Bhubaneswar. Therefore, the DFO-
Opposite Party No.3 was bound by the circular dated 23.11.2007.
As such he could not have passed order dated 24.06.2020 under
Annexure-E/4 to the counter affidavit. Although, the circular dated
23.11.2007 was withdrawn subsequently such subsequent
withdrawal cannot ipso-facto validate an order which was passed
prior to such withdrawal by the Opposite Party No.3 on 24.06.2020
repatriating the Petitioner to Angul Forest Division. Moreover, this
Court observed and it is also an admitted fact that the Petitioner is
continuing in service by virtue of the interim order passed by this
Court. Since, validity of order dated 24.06.2020 is sub-judice before
this Court in another writ application bearing W.P.(C) No.17797 of
2020, this Court refrains from making any observation in that
regard.
// 16 //
27. On a careful consideration of the factual background of the
present case as well as keeping in view the settled principles of law,
this Court deems it proper to protect the Petitioner till a final
decision is taken by this Court in W.P.(C) No.17797 of 2020,
otherwise the fate of the Petitioner would remain hanging in a
limbo. Therefore, in the large interest of justice, this Court directs
the Opposite Parties to include the name of the Petitioner
provisionally in the final gradation list by ascertaining her position
in the gradation list strictly in the light of the circular dated
23.11.2007 under Annexure-4 to the writ application. Accordingly,
a revised gradation list be published indicating the name of the
Petitioner in such gradation list of the City Forest Division,
Bhubaneswar. Moreover, it is indicated that such inclusion of name
of the Petitioner shall be subject the final outcome of W.P.(C)
No.17797 of 2020. Let the aforesaid exercised be carried out within
a period of six weeks from the date of communication of a copy of
this judgment. In view of the aforesaid direction the letter dated
17.04.2023 issued by the Opposite Party No.4 is hereby quashed
with a further direction to prepare a final gradation list by revising
the gradation list dated 19.04.2023 under Annexure-13 in the
manner as has been directed hereinabove.
// 17 //
28. Accordingly, the writ application is allowed in the light of
the observations made hereinabove. However, there shall be no
order as to cost.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
The 22nd August, 2023/ Anil.
Signature Not Verified
Digitally Signed
Signed by: ANIL KUMAR SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 22-Aug-2023 19:18:18
