Manoranjan Hota & Others vs State Of Odisha And Another
2023 Latest Caselaw 12940 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                       W.P.(C) No. 31043 of 2023

      Applications under Articles 226 & 227 of Constitution of
      India.
                           ---------------
      Manoranjan Hota & Others             .......          Petitioners

                              - Versus -

      State of Odisha and another              .......    Opp. Parties
      Advocate(s) appeared in this case:-
      _________________________________________________________
        For Petitioners       : M/s. Dr. J.K. Lenka, P.K. Behera,
                                & L. Tripathy, Advocate.

         For Opp. Parties : Mr. I. Mohanty
                            Addl. Standing Counsel
      _________________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                                JUDGMENT

th 18 October, 2023

SASHIKANTA MISHRA, J.

The petitioners have filed this writ application with

the following prayer:

"In view of the above stated fact and circumstances, this Hon'ble Court may graciously be pleased to admit the Writ application, issue rule NISI calling upon the Opp. Parties to show cause as to why the order of transfer of the Petitioners vide Office order dated 14.07.2023 at

Annexure-7 and the order of rejection dated 14.09.2023 at Annexure-12, directing immediate relief of the petitioners should not be quashed.

And if the Opp.Party failed to show cause or sufficient cause, the rule be made absolute.

And further be pleased to issue any other appropriate writ/writs, rule/rules or order/orders, direction/directions as may be deemed fit and proper in the interest of justice.

And for which act of kindness, the Petitioners as in duty bound shall ever pray."

2. The facts of the case are that Govt. of Odisha in

the Department of Panchayati Raj created the post of Asst.

Project Manager (Finance) in District Rural Development

Agency (DRDA) by order dated 18.11.1996 as per staffing

pattern meant for Class-II officers of the State Govt. with

regular scale of pay of Rs.2000-3500/-. The petitioners

applied for the said posts pursuant to an open advertisement

and after undergoing a selection process, were appointed

against such posts. Their pay scale was subsequently revised

in the pay band of Rs.9300 - 34800/- with grade pay of Rs.

4600/-. Because of lack of promotional avenues, the

petitioners approached this Court in W.P.(C) No.32335 of

2011 for a direction to the authorities to create promotional

avenues for them or in the alternative, to grant higher scale

of pay at par with Class-I officers of the State Govt. During

pendency of the said writ petition the Govt. vide letter dated

10.12.2014 took a decision to fill up the posts of Addl. Project

Director (Finance) in DRDAs by officers from the Odisha

Finance Service on deputation ignoring the case of the

petitioners. As such, they again approached this Court in

W.P.(C) No. 24678 of 2014 with prayer to quash the letter

dated 10.12.2014 and to direct the Govt. to fill up the posts

by the petitioners. This Court, by order dated 19.12.2014

directed as an interim measure that any appointment made

shall abide by the result of the writ petition. However, the

claim of the petitioners for promotion was rejected by order

dated 12.05.2020. The petitioners therefore, filed a contempt

petition being CONTC No. 2110 of 2010. During pendency of

the contempt petition the Govt. decided to abolish the DRDAs

in the state by merging them with the Zilla Parishads. The

post of Asst. Project Manager (Finance) was merged with the

newly created post of Senior Programme Manager (Finance)

carrying same pay scale. The six petitioners herein have been

continuing in 6 out of 7 such posts newly created. The higher

post of Addl. Project Manager (Finance) was merged with the

newly created post of Addl. Executive Officer (Finance). At

this stage and during pendency of the aforementioned two

writ petitions the Govt. by notification dated 16.02.2015

transferred the petitioners to different DRDAs. Said

notification was challenged by one of the petitioners namely,

Deepak Kumar Biswal in W.P.(C) No. 2953 of 2015. By order

dated 24.07.2015, this Court quashed the order of transfer in

respect of the said petitioner as it was passed without

complying with the provisions contained in Regulation 15 of

the Odisha District Rural Development Agency Employees

(Recruitment and Conditions of Service) Regulations, 1989

(for short, 'DRDA Regulations 1989'). However, the Director,

Panchayati Raj vide order dated 14.07.2023 transferred the

petitioners to different Zilla Parishads (Copy enclosed as

Annexure-7). The petitioners again approached this Court in

W.P.(C) No. 22459 of 2023, which was disposed of by order

dated 19.07.2023 by keeping the impugned order in

abeyance and granting liberty to them to submit a fresh

representation before the Director with further direction to

the Director to consider the same as per Regulation 15 of the

DRDA Regulation 1989. The petitioners submitted their

representations but the same has been rejected by the

Director vide order dated 14.09.2023 on the ground that after

framing of the Odisha Zilla Parishad Employees Service

(Recruitment and Conditions of Service) Rules, 2023 (for

short, 'Zilla Parishad Rules, 2023') the petitioners are of the

state cadre. Said order is enclosed as Annexure-12 to the writ

petition.

3. The opposite parties have not filed any counter to

the writ petition but the state counsel preferred to make oral

submissions as it was felt that the matter could be finally

disposed of at the sage of admission since the facts are not

disputed and only a point of law is involved.

4. Heard Dr. J.K. Lenka, learned counsel for the

petitioners and Mr. I Mohanty, learned Addl. Standing

Counsel for the State.

5. Dr. Lenka assails the impugned orders under

Annexures- 7 and 12 by contending that the Govt. has acted

with malafides in transferring the petitioners to different Zilla

Parishads purportedly treating them as belonging to a state

cadre which is in violation of the DRDA Regulations, 1989,

which still holds the field. Further, the reliance placed by the

Director on the Zilla Parishad Rules, 2023 is entirely

misconceived and contrary to law because said Rules have

actually not come into force as yet. The draft Rules can have

no legal force. It is further argued that all the petitioners have

rendered service for more than two decades without having

any promotional avenues. So, only because they legitimately

claimed promotion or higher scale of pay, they are sought to

be punished by transferring them

6. Mr. I. Mohanty argues that transfer is an incidence

of service and no employee has a right to remain posted at

any particular place of his choice. In the instant case, the

petitioners were transferred on administrative grounds and in

the larger interest of the functioning of the Zilla Parishads

which are engaged in developmental works. Mr. Mohanty

however, fairly concedes that the Zilla Parishad Rules, 2023

is still at the draft stage and has not been finally brought into

force as yet.

7. As evident from the foregoing narration, much has

been pleaded and argued as regards the promotional avenues

or the lack of it of the petitioners. But this Court finds that

the present lis revolves around the correctness and/or

legality of the notification under Annexure-7 and the order of

rejection under Annexure-12. Moreover, the claim of the

petitioners regarding promotional avenues is the subject

matter of the previous writ petitions and therefore, this Court

shall not render any finding in such regard.

8. Having regard to the rival contentions it is

apparent that the sole question that falls for determination in

this case is, whether the provisions of a draft Rules can be

invoked by the authorities for taking any action.

9. Reference has been made by the parties to the

Zillab Parishad Rules, 2023, copy enclosed as Annexure- 10

to the writ petition. Said draft Rules was published in the

Odisha Gazette on 11.08.2023. Its introduction reads as

follows:

"No.17546-PR-DRDA-MISC-0049/2014/PR & DW.- In exercise of the power conferred under section 51 of Odisha Zilla Parishad Act, 1991 (Odisha Act 17 of 1991) is hereby published as required by sub-section (1) of the said section for the information of all persons likely to be affected thereby and notice is hereby given that the said draft will be taken into consideration after the expiry of a period of thirty days from the date of publication of this notification in the Odisha Gazette,

Any objection and suggestion which may be received from any person in respect of the said draft before the expiry of the period so specified above will be considered by the State Government."

10. We need not dwell upon the provisions of the

Rules, for the question is, are these Rules deemed to have

come into force automatically. The law in this regard was

examined by the Supreme Court in the case of Vimal

Kumari vs. State of Haryana and others reported in

(1998) 4 SCC 114 and it was observed as follows:

"6. The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no

doubt, open to the Government to regulate the service conditions of the employees for whom the Rules are made by those Rules even in their "draft stage" provided there is clear intention on the part of the Government to enforce those Rules in the near future. Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the Rules at all, as is evident in the instant case, recourse to "Draft Rules" cannot be taken. Such Draft Rules cannot be treated to be Rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the Draft Rules nor can such Draft Rules exclude the jurisdiction of the Government, or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them."

11. Vimal Kumari (Supra) was also relied upon by the

Supreme Court in the case of Chandigarh Administration

v. Usha Kheterpal Waie, reported in (2011) 9 SCC 645;

(2011) 9 SCC 645 in the following words:

"17. In Abraham Jacob v. Union of India [(1998) 4 SCC 65 : 1998 SCC (L&S) 995] this Court held that where draft rules have been made, an administrative decision taken to make promotions in accordance with the draft rules which were to be finalised later on, was valid. In Vimal Kumari v. State of Haryana [(1998) 4 SCC 114 : 1998 SCC (L&S) 1018] this Court held that it is open to the Government to regulate the service conditions of the employees for whom the rules were made, even if they were in their draft stage, provided there is a clear intention on the part of the Government to enforce those Rules in the near future."

12. Thus, the position that emerges is, even a Draft

Rule can be invoked provided there is a clear intention on the

part of the State to enforce it in the near future to meet an

emergent situation but it cannot legally exclude the operation

of any existing executive instruction, Rule etc.. Turning to the

facts of the case, admittedly, the draft Rules were published

in the Gazette on 11.08.2023 with the stipulation that they

shall will be taken into consideration thirty days after such

publication. Obviously, the intention was to invite

objections/suggestions as to its provisions. Nothing has been

stated on behalf of the State as to if any

suggestions/objections were received and the steps taken in

that regard. So, the Rules must be held to have remained in a

nascent stage and not attained finality because there is

nothing to show that after a particular period of time, the

draft Rules would automatically become final. Therefore,

invocation of the Draft Rules by the authorities as on

13.09.2023 when the same had not actually come into force

is unconscionable in law. Consequently, the rejection of the

representation of the petitioner as per order under Annexure-

12 is rendered unsustainable in law.

13. It would be significant to note that as against the

Draft Rules, there is an existing Regulation namely, the

DRDA Regulations 1989 occupying the field. As held in

Vimal Kumari (supra) the draft Rules cannot exclude the

operation of any existing executive or administrative

instructions on the subject covered by it. The DRDA

Regulations 1989 does exist and is in force. As long as the

Regulations have not been expressly or impliedly repealed, its

provisions have to be followed.

14. In this context, reference may be had to the

relevant provisions of the DRDA Regulations 1989.

Regulation 15 reads as follows:

"No employee shall be transferred from one agency to another. However, the Director(SP) of C.D. & R.R. Department may transfer an-employee from one Agency to another with the willingness of the concerned employees and consent of both Agencies. In the event of such a transfer, the seniority of the employee transferred from one Agency to another shall be determined as per his date of joining in the present post in the gradation

list of the cadre of the Agency to which the employee is transferred."

15. It is needless to mention that the impugned order

of transfer as at Annexure-7 runs contrary to Regulation 15.

16. Thus on a conspectus of the discussion made on

the facts and law as above, it is evident that the impugned

orders under Annexures -7 and 12 being unsustainable in

the eye of law warrant interference by this Court.

17. In the result, the writ petition is allowed. The

impugned orders under Annexures-7 and 12 are hereby

quashed. The petitioners shall be permitted to continue in

their places of posting prior to issuance of Annexure-7.

................................. Sashikanta Mishra, Judge

Orissa High Court, Cuttack.

The 18th October, 2023/ A.K. Rana, P.A.

Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication

Date: 18-Oct-2023 20:25:48