Orissa High Court
Dillip Kumar Sahoo vs State Of Odisha & Others .... Opposite ... on 5 November, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) (OAC) No.1714 of 2017
An application under Section-19 of Administrative
Tribunals Act, 1985.
..................
Dillip Kumar Sahoo .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. D.K. Panda, G. Sinha & A.
Mishra.
For Opp. Parties : M/s.C.M. Singh,
Addl. Standing Counsel
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:05.11.2024 and Date ofJudgement:05.11.2024
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel appearing for the Parties.
3. The Present Writ Petition has been filed inter alia
challenging the order dtd.27.06.2017 so passed by the
// 2 //
Government-Opposite Party No.1 under Annexure-6.
Vide the said order, Petitioner was reverted to the rank of
Deputy Ranger with immediate effect.
4. It is contended that the Petitioner was initially
appointed as a Forester where he joined on 29.05.1979.
But subsequently, Petitioner was terminated and again
appointed as L.D. Clerk, where he joined on 22.09.1979.
Subsequently, Petitioner was again allowed to continue as
a Forester w.e.f. 09.08.1980 and appointed as a Forest
Extension Officer, where he joined on 11.02.1981.
Petitioner was ultimately appointed as a Village Forest
Worker on ad hoc basis for a period of 89 days vide office
order dtd.01.12.1986, where he joined on 03.12.1986.
4.1. It is contended that while continuing as a Village
Forester Worker under the Social Forest Project, basing
on the decision taken by the Government on 10.02.2009,
all Village Forester Workers were appointed as Foresters
with merger of Village Forester Workers in the cadre of
Forester. As per the said notification issued by the
Government on 10.02.2009, Petitioner after being merged
in the cadre of Forester, he was placed at Sl. No.67 in the
gradation list of the Forester so issued on 01.01.2014
under Annexure-2.
4.2. It is contended that basing on the position in the
gradation list so published under Annexure-2, Petitioner
// 3 //
was promoted to the rank of Deputy Ranger vide office
order dtd.03.06.2014 under Annexure-3 and
subsequently as a Forest Ranger vide office order
dtd.31.03.2016 under Annexure-4.
4.3. It is contended that while in order dtd.03.06.2014,
name of the Petitioner was reflected at Sl. No.2 as against
the post Deputy Ranger, in order dtd. 31.03.2016, name
of the Petitioner is reflected at Sl. No.45 as against the
post of Forest Ranger.
4.4. It is contended that while continuing as a Forest
Ranger in terms of the order issued on 31.03.2016 under
Annexure-4, Petitioner was reverted vide the impugned
order dtd.27.06.2017 under Annexure-6. However, by
virtue of the interim order of status quo passed by the
Tribunal on 07.07.2017, Petitioner was allowed to
continue as a Forest Ranger, till he attained the age of
superannuation on 31.01.2019.
4.5. It is contended that since prior to taking the extreme
step of reverting the Petitioner from the post of Forest
Ranger to the rank of Deputy Ranger vide impugned order
dtd.27.06.2017, Petitioner was never given an
opportunity of hearing, the said order is not sustainable
in the eye of law on the ground of non-compliance of
principle of natural justice.
// 4 //
In support of the same, learned counsel for the
Petitioner relied on the decision in the case of Purna
Chandra Hota and Others vs. Sambalpur University
and Others. This Court in Para-11, 12 and 19 of the said
judgment has held as follows:-
"11. In course of hearing a query was made by this Court
to the extent that while the authority re-fixed the inter se
seniority of the petitioners whether any opportunity of
hearing was given to them in compliance of principles of
natural justice or not. Learned counsel for opposite parties
no.1 and 2, save and except pleadings made in paragraph-
8 mentioned above, has not indicted anything that there
was compliance of principles of natural justice in changing
inter se seniority of the petitioners nor learned counsel
appearing for opposite parties no.3 to 26 (except opposite
parties no.6, 12, 17 and 22) has indicated anything from
record that the petitioners were given opportunity of
hearing, while changing inter se seniority, in compliance of
the principles of natural justice.
12. If the services of the petitioners were regularized with
effect from 27.11.1984 pursuant to office order dated
16.01.1999 which was confirmed on 29.02.1992, and none
had raised any objection to the said confirmation, a vested
right had already been accrued in their favour, and on that
basis if inter se seniority of the petitioners was placed at
serial nos. 124, 125 and 123 respectively, that cannot and
could not have been changed without complying the
principles of natural justice. The arguments advanced by
learned counsel for opposite parties no.1 and 2 indicates
that such re-fixation of inter se seniority has been done in
view of the order dated 07.01.2008 passed by this Court in
OJC No.3246 of 1997. But the said order clearly indicates
that there was no direction to fix the seniority of opposite
parties no.3 to 26 over and above the petitioners, rather this
Court noting down the submission of learned counsel for
opposite parties no.7, 15 and 16, who approached this
Court by filing OJC No.3246 of 1997, permitted them to file
certified copy of the order together with representation
within two weeks and the same was to be considered in
accordance with law. As 13 such, no principle has been
decided by this Court, while disposing of the said writ
// 5 //
petition, nor any such direction was given that opposite
parties no.3 to 26 would be placed senior to the petitioners.
Therefore, opposite parties no.1 and 2 in a camouflaged
manner passed the impugned orders in the name of
compliance of the order dated 07.01.2008 passed by this
Court in OJC No.3246 of 1997.
xxx xxx xxx
19. In view of the law discussed above, the inevitable
conclusion is that once the petitioners have acquired a
vested right by continuing in a post as Jr. Assistant and
subsequently regularized and confirmed against that post
on 29.02.1992 and thereafter promoted to the post of Sr.
Assistant on 21.04.2003 and in the gradation list their
seniority has been fixed as serial nos.124, 125 and 123
respectively, the same cannot and could not have been
altered merely on the basis of consideration of
representation filed by opposite parties nos.7, 15 and 16
and re-fixed their seniority against serial nos.148, 149 and
147 by placing them below the opposite parties nos.3 to 26.
Thereby, this Court is of the opinion that the rudiment of
law of compliance of principles of natural justice has not
been followed. In such view of the matter, the order so
passed in Annexure-6 dated 29.07.2008 with regard to re-
fixation of seniority and consequential order dated
07.08.2008 in Annexure-7 cannot sustain in the eye of law
and are liable to quashed. Accordingly, the same are hereby
quashed and the petitioners seniority are restored to their
original position, i.e., serial nos.124, 125 and 123
respectively".
4.6. It is accordingly contended that since prior to
passing of the impugned order, Petitioner was never given
an opportunity of hearing, the impugned order is not
sustainable in the eye of law. However, since by virtue of
the interim order, Petitioner was allowed to continue as
Forest Ranger till he attained the age of superannuation
on 31.01.2019, impugned order of reversion lost its force
and is not applicable to the claim of the Petitioner to get
all service and financial benefits as due and admissible.
// 6 //
4.7. It is also contended that such order of reversion,
which is in the nature of a major penalty could not have
been passed without initiating a proceeding as provided
under OCS (CC&A) Rules, 1962.
5. Mr. C.M. Singh, learned Addl. Standing Counsel for
the State on the other hand placing reliance on the stand
taken in the counter affidavit so filed by the Opposite
Party contended that Petitioner was appointed as a
Village Forester Worker, where he joined on 03.12.1986
and the said date of joining of the Petitioner as Village
Forester Worker was reflected in the service book
available under Annexure-I to the counter.
5.1. It is contended that Petitioner while so continuing as
a Village Forester Worker, Village Forester Workers
merged with the cadre of Forester in terms of notification
issued by the Department on 10.02.2009 under
Annexure-II. As per the said notification issued under
Annexure-II, it was clearly indicated under Sub-Rule-5 of
Rule-12 of Orissa Subordinate Forest Service (Method of
Recruitment and Conditions of Service of Foresters)
Rules, 1998, inter-se seniority of Village Forest Workers
merged under Class-A of Rule-4 shall be in order of their
names appears in the select list and they shall en-block
be junior to the existing Foresters.
// 7 //
5.2. It is contended that in view of the provisions
contained under Rule-12(5) of the Rules, seniority of
Village Forester Worker so merged in the cadre of Forester
was to be counted from 10.02.2009 in the rank of
Foresters i.e. the date of merger. However, in the
gradation list published under Annexure-2, Petitioner was
wrongly placed at Sl. No.67 by showing the date of his
joining as Forester as 03.12.1986. Since Petitioner
merged in the cadre of Forester on 10.02.2009, in view of
Rule-12(5), his seniority is to be counted from that date.
However, basing on his position in the gradation list so
published under Annexure-2, Petitioner was extended
with the benefit of promotion to the rank of Deputy
Ranger vide order dtd.03.06.2014 under Annexure-3 and
subsequently to the rank of Forest Ranger vide order
dtd.31.03.2016. But subsequently when it came to the
knowledge of the Department that Petitioner's seniority in
the rank of Forester has been wrongly fixed as
03.12.1986 in the gradation list published under
Annexure-2 in place of 10.02.2009 and because of such
wrong, he got the benefit of promotion to the rank of
Deputy Ranger as well as Forester Ranger, basing on the
letter issued by the P.C.C.F, Odisha, Petitioner was
reverted to the rank of Deputy Ranger vide office order
dtd.27.06.2017 under Annexure-6.
// 8 //
5.3. It is contended that in the gradation list published
under Annexure-2 since Petitioner was wrongly placed by
taking his date of joining as a Forester as 03.12.1986 in
place of 10.02.2009, the order of reversion was passed.
5.4. It is also contended that by the time the Tribunal
passed the interim order of status quo on 07.07.2017,
Petitioner since had already been reverted vide order
dtd.28.06.2017, it is to be held that Petitioner continued
in the reverted post till he attained the age of
superannuation on 31.01.2019, as order of reversion
takes effect from the date of order.
In support of the aforesaid submissions, learned
Addl. Standing Counsel for the State relied on the
decision of the Hon'ble Apex Court in the case of Ram
Dayal vs. Municipal Corporation of Delhi & Another,
reported in (1969) 3 SCC-35. Hon'ble Apex Court in
Para-17 reads as follows:-
"17. The ordinary meaning of the word "communicate" is
to impart, confer or transmit information.
xxx xxx xxx
In our view, once an order is issued and it is sent out to
the concerned government servant, it must be held to have
been communicated to him, no matter when he actually
received it. We find it difficult to persuade ourselves to
accept the view that it is only from the date of the actual
receipt by him that the order becomes effective. If that be
the true meaning of communication, it would be possible
for a government servant to effectively thwart an order by
avoiding receipt of it by one method or the other till after
// 9 //
the date of his retirement even though such an order is
passed and despatched to him before such date".
5.5. It is accordingly contended that since the Petitioner
because of the wrong committed by the Department got
the benefit of promotion from the rank of Deputy Ranger
to the rank of Forest Ranger vide order issued on
31.03.2016 under Annexure-4, the same was corrected
with passing of the order dtd.27.06.2017 under
Annexure-6.
5.6. It is accordingly contended that since Petitioner was
extended with the benefit of promotion wrongly by the
Department, basing on the recommendation made by the
PCCF, the order impugned has been rightly passed which
requires no interference. It is also contended that
Petitioner could not have improved his case if he would
have been issued with a notice. It is also contended that
since the wrong committed by the Dept. is tale-tale and in
the order of reversion no stigma is attached, no
proceeding was required to be initiated. It is accordingly
contended that the impugned order requires no
interference of this Court.
In support of the aforesaid contention, learned Addl.
Standing Counsel for the State relied on the decision of
the Hon'ble Apex Court in the case of R.S. Sial vs. The
State of U.P. & Others, reported in (1975) 3 SCC-111.
Hon'ble Apex Court in Para-12 has held as follows:-
// 10 //
"12. Keeping in view the principles enunciated above, we
have looked at the facts of the case and are not satisfied
that the order of reversion of the appellant was by way of
punishment. It has already been mentioned above that no
aspersion was cast on the appellant in the order of
reversion and as a result of that order no stigma attaches
to his name. The appellant was merely officiating in a
higher post and the impugned order had the effect of
reverting him to his substantive post. The attendant
circumstances to which our attention has been invited with
a view to show that the order of reversion was by way of
punishment are two letters dated July 12, 1967. One of
these letters was addressed by the Deputy Secretary,
Vigilance Department to the Director of Vigilance wherein
reference was made to the report of the officers of the
Intelligence and Evaluation Cell. It was requested that an
open enquiry might be made into the allegations of
involvement of the appellant in a matter relating to the
supply of non-genuine and substandard motor parts by a
Delhi dealer. In the other letter addressed to the Secretary
to Uttar Pradesh Government, Transport Department a
request was made by the Deputy Secretary, Vigilance
Department that in case the appellant was not confirmed
on the post of General Manager, he might be reverted since
an enquiry made by the CID into the allegations of
corruption against the appellant had revealed that there
was substance in those allegations. The above letters
would show that the authorities concerned came to the
conclusion that, pending the holding of an open enquiry
into the charges of corruption against the appellant, he
should not be allowed to officiate in a higher post. It
cannot, in our opinion, be inferred therefrom that the
reversion of the appellant was by way of punishment. All
that can be said is that the contemplated enquiry into the
charges of corruption against the appellant provided the
motive for the reversion of the appellant. The existence of
such a motive cannot, in our opinion, vitiate the order for
the reversion of the appellant. It may be taken to be well
settled that even though misconduct, negligence,
inefficiency or other disqualifications may be the motive or
the inducing factor which influence the Government to take
action under the express or implied terms of the contract of
employment or under the statutory rule, nevertheless if a
right exists, under the contract or the rules to terminate the
services the motive operating on the mind of the
Government is wholly immaterial The same rule would
// 11 //
hold good if the order passed is not for termination of
service but for reversion of a Government servant from a
higher post to a lower post which he holds in a substantive
capacity".
6. Having heard learned counsel appearing for the
Parties and considering the submissions made, this Court
finds that Petitioner though was initially engaged as a
Forester on 27.02.1979 as found from Annexure-1, but
Petitioner was terminated from that post and he
continued as a L.D Clerk w.e.f. 22.02.1979 and thereafter
as Forest Extension Officer w.e.f. 11.02.1981. But it is
not disputed by the parties that the Petitioner ultimately
joined as a Village Forest Worker (VFW) where he joined
on 03.12.1986.
6.1. As found from Annexure-II notification
dtd.10.02.2009 Village Forester Workers merged in the
cadre of Forester's and in terms of the notification issued
by the Department on 10.02.2009, more particularly
Rule-12(5) of the 1998 Rules, all such VFWs so merged in
the cadre of Foresters are to be treated as en-block junior
to be existing Foresters. It means all the Village Forest
Workers will carry the seniority in the rank of Forester
w.e.f 10.02.2009. But as found from Annexure-2,
Petitioner's date of joining in the cadre of Forester was
taken as 03.12.1986 and accordingly he got the benefit of
promotion to the rank of Deputy Ranger vide order
dtd.03.06.2014 under Annexure-3 and to the rank of
// 12 //
Forest Ranger vide order dtd.31.03.2016 under
Annexure-4.
6.2. In view of the provisions contained in the
Notification dtd.10.02.2009 under Annexure-II, it is the
view of this Court that Petitioner's seniority in the rank of
Forester should have been counted from 10.02.2009. But
his seniority has been wrongly taken as 03.12.1986, while
issuing the gradation list under Annexure-2 and basing
on which he got the benefit of promotion to the rank of
Deputy Ranger as well as Forest Ranger vide orders
issued under Annexures-3 & 4.
6.3. Therefore, this Court is of the view that Petitioner
has got the benefit of promotion to the rank of Deputy
Ranger as well as Forest Ranger, because of the wrong
committed by the Opposite Parties while preparing the
gradation list under Annexure-2. However since prior to
passing of the impugned order, Petitioner has not been
given an opportunity of hearing this Court on the ground
of non-compliance of the principle of natural justice is
inclined to quash order dtd.27.06.2017 so passed under
Annexure-6. While quashing the same, this Court remits
the matter to Opposite Party No.1 to take a fresh decision.
In order to avoid delay, Petitioner is directed to file his
objection with regard to his reversion to the post of
Deputy Ranger within a period of four (4) weeks from the
date of receipt of this order. On receipt of such objection,
// 13 //
Opposite Party No.1 shall take a fresh decision taking into
account the observation made by this Court and
communicate the result thereof to the Petitioner.
7. With the aforesaid observation and direction, the
Writ Petition is disposed of.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 5th November, 2024/ Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
