Orissa High Court

Dillip Kumar Biswal vs State Of Odisha & Another ... Opposite ... on 15 July, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

      IN THE HIGH COURT OF ORISSA AT CUTTACK

          W.P.(C) Nos.3613 and 3791 of 2025

 (Applications under Articles 226 and 227 of the Constitution of
 India)


       Dillip Kumar Biswal                ...       Petitioner

                             -versus-

       State of Odisha & another ...               Opposite Parties


  Advocates appeared in the case through hybrid mode:


      For Petitioner              :     Mr.Srinivas Mohanty,
                                        Advocate.

                              -versus-

       For Opposite Parties        : Mr. S.S.Routray, A.S.C.


In W.P.(C) No.3791 of 2025

      Sankar Mallick                      ...       Petitioner

                             -versus-

       State of Odisha & another ...               Opposite Parties


  Advocates appeared in the case through hybrid mode:




W.P.(C) Nos.3613 & 3791 of 2025                   Page 1 of 12
                For Petitioner                    :    Mr.Srinivas Mohanty,
                                                      Advocate.

                                           -versus-

               For Opposite Parties               : Mr. S.S.Routray, A.S.C.


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                                          CORAM:
                          JUSTICE SASHIKANTA MISHRA

                                      JUDGMENT

15.7.2025.

Sashikanta Mishra,J. Both these Writ Petitions involve common

facts and law and being heard together, are disposed of

by this common judgment. For brevity, the facts of

W.P.(C) No.3613/2025 are only reflected in this

judgment.

2. The Petitioner was engaged as Gram Rozgar

Sevak w.e.f. 15.9.2008 after undergoing due selection

process and was assigned to such work in Bachhalo

Gram Panchayat of Naugaon Block in the district of

Jagatsinghpur. While working as such, an order

dtd.07.11.2019 was issued by the Collector

transferring him to Ersama Block. He challenged such

transfer before this Court in W.P.(C) No.21819/2019.

Initially, by order dtd.15.11.2019 this Court directed

status quo to be maintained with regard to the post

held by the Petitioner. Ultimately, by order

dtd.15.2.2022, the Writ Petition was disposed by

quashing the order of transfer. The State carried the

matter in appeal to the Division Bench being W.A.

No.433/2022. By order dtd.21.3.2023, the Division

Bench set aside the order of the learned Single Judge

passed in the aforementioned Writ Petition and

restored the order of transfer of the Petitioner.

Pursuant to such order, the Petitioner joined in his

place of transfer. On 27.2.2024, the Odisha

Accountant-cum-Data Entry Operator (Method of

Recruitment and Conditions of Service) Rules, 2024

(hereinafter referred "Rules, 2024) was notified wherein

a provision was made for absorption of Gram Rozgar

Sevaks as Accountant-cum-Data Entry Operator

(ADEO) as a one-time measure. Accordingly, a select

list was published in the district of Jagatsinghpur, but

the name of the Petitioner was not included therein.

The Petitioner therefore, approached this Court in

W.P.(C) No.29934/2024 which was disposed of by

order dtd.2.12.2024 granting liberty to him to submit a

representation to the Collector highlighting his

grievance. The Petitioner submitted his grievance in

the form of representation addressed to the Collector

on 09.12.2024. The Collector after considering the

relevant facts, rejected the representation by order

dtd.4.1.2025 by holding that the Petitioner was not in

duty from 15.11.2019 to 23.4.2024. The said order is

impugned in the present Writ Petition.

3. According to the Petitioner, this Court having

directed to maintain status quo in the earlier Writ

Petition filed by him, he must be deemed to have

continued in the post held by him at that relevant time

till the order of transfer was quashed. The Petitioner

continued till the order of the learned Single Judge was

set aside by the Division Bench. Thereafter, he joined

in the place of transfer. As such, he was in duty all

through for which rejection of his representation is bad

in law. On such facts, the Petitioner has preferred this

Writ Petition with the following prayer;

"The petitioner, therefore, prays that your lordship would graciously be pleased to admit this petition, call for the records and after hearing the parties be pleased to quash the rejection order dtd-04.01.2025 under ANNEXURE-7;

And further be pleased to direct the authority to appoint the petitioner as ADEO (Accountant cum DEO) on the basis of the Gazette notification dtd-27.02.2024 vis-a-vis as per select list dtd-21.06. 2024; And pass any other and/or further order as deemed fit and proper under the circumstances of the case, And for this act of kindness the petitioner as in duty bound shall for ever pray."

4. Counter affidavit has been filed by the C.D.O.-cum-

Executive Officer (Opp.Party No.2) inter alia, stating

that the name of the Petitioner was considered by the

Selection Committee constituted for promotion of Gram

Rozgar Sevak to the post of ADEO but the committee

did not find the Petitioner suitable as he had not

rendered 5 years continuous service as on 27.2.2024.

The Petitioner had not performed his duty from

15.11.2019 to 23.4.2023 having remained absent from

duty without any permission or leave. He was also not

paid remuneration during this period nor was the gap

period regularized. He was therefore, disqualified from

being considered for absorption.

5. The Petitioner has filed a further affidavit stating

that pursuant to the interim order passed by this

Court on 15.11.2019 he had continued in his earlier

place of engagement at Naugaon Block. After passing

of such order he had submitted a series of

representations for permitting him to resume his work

and for grant of remuneration which were never

considered. Even after the order of transfer was

quashed on 15.2.2022, he submitted representation

for permitting him to resume his work and for granting

him remuneration.

6. Heard Mr. Srinivas Mohanty, learned counsel for

the Petitioner and Mr. S.S. Routray, learned Addl.

Standing Counsel for the State.

7. Mr.Mohanty would argue that admittedly the

order of transfer dtd.7.11.2019 was interfered with by

this Court in the earlier Writ Petition by specifically

directing that status quo with regard to the Petitioner's

post be maintained. This implies that the Petitioner

was allowed to continue in the post held by him at that

point of time. The order of transfer was eventually

quashed which means the Petitioner's continuance in

his place of posting was confirmed. Though the order

of the Single Judge was set aside and the order of

transfer was restored, the Petitioner acted in

compliance of such order by joining in the place of

transfer. It cannot therefore, be held that he had not

rendered any work or that he was unauthorizedly

absent. Non-payment of remuneration cannot imply

break in service.

8. Mr.Routray, learned State counsel, on the other

hand, argues that as per the Rules, a Gram Rozgar

Sevak in order to be considered for absorption in the

permanent post of ADEO should have rendered 5 years

continuous service as on the date of coming into force

of the Rules i.e. 27.2.2024. The Petitioner was absent

from duties from 15.11.2019 to 23.4.2023 inasmuch

as he was never allowed to resume his duties nor paid

remuneration. Such gap period was also never

regularized. Therefore, notwithstanding the fact that

the Petitioner was engaged since 15.9.2008 yet, he

does not satisfy the requirement of rendering 5 years

continuous service as on the date of coming into force

of the Rules for being considered for absorption as

ADEO.

9. I have heard learned counsel for the parties at

length and have also carefully considered the materials

on record. There is no dispute that the Petitioner was

engaged since 15.9.2008 and had rendered continuous

service till 15.11.2019. On that date, this Court in

W.P.(C) No.21819/2019 directed that status quo with

regard to the post held by the Petitioner shall be

maintained. This obviously implies that this Court

wanted the existing situation to be maintained. This, in

turn, implies that the Petitioner continued to work as

Gram Rozgar Sevak in the post held by him at that

time. The order of transfer was quashed by this Court

by order dtd.15.2.2022. This means, the Petitioner's

continuance in the post held by him was confirmed.

Nothing has been placed on record to show that the

Petitioner was absent from duty. Of course, the

Petitioner has submitted representation seeking

permission to render work. This Court would deal with

the effect of such representation a little later.

10. The order passed by learned Single Judge was

set aside by the Division Bench on 21.3.2023 whereby,

the order of transfer was revived. So, from 15.2.2022

till 21.3.2023, there was no order of transfer. It

appears from the record that the Petitioner was not

paid remuneration during the interregnum nor such

period was regularized. As already stated, the

Petitioner submitted several representations for

permitting him to render work and to be paid his

remuneration. No order appears to have been passed

on such representations. Thus, as things stand, there

is nothing on record to show that any action was taken

against the Petitioner for purported non-performance

of his duty. That apart, this Court having directed

status quo to be maintained, it was obviously not open

to the concerned authorities to act otherwise. Be it

noted that it was never the case of the authorities that

the Petitioner was not working in the post held by him

on 15.11.2019, the date on which the interim order

was passed. Such being the case, the authorities could

not have deprived him from rendering work. What is

surprising to note is, despite having taken the stand

that the Petitioner was unauthorizedly absent from his

duties, his case was considered for absorption to the

post of Gram Rozgar Sevak by the selection committee

as per the 2024 Rules. It is stated in Paragraph-5 of

the counter that the selection committee did not find

the Petitioner a suitable candidate as he had not

rendered 5 years continuous service as on 27.2.2024.

This stand of the authorities is not only contradictory

but also unconscionable for the reason that if the

Petitioner was authorizedly absent from his duty from

15.11.2019, where was the question of the selection

committee considering his case at all for absorption?

Moreover, there being no positive or specific order

treating the Petitioner as being unauthorizedly absent,

mere stand taken in the counter affidavit cannot be

accepted. As regards non-payment of remuneration,

the same, even if true, cannot in the absence of any

specific order, wipe out the period from 15.11.2019 to

23.4.2023. Significantly, it is not disputed that the

Petitioner, after revival of the order of transfer, has

joined in his transferred place. It is for the authorities

concerned to deal with the period in between. Since

they themselves have not taken any decision in such

regard, the Petitioner cannot be blamed for the same or

deprived of his legitimate due. By accepting the joining

of the Petitioner in his transferred place and in the

absence of any specific order dealing with the relevant

period prior to it, the authorities must be deemed to

have accepted his continuance in employment. In the

impugned order, the Collector has stated the following:

"And whereas, Sri Dillip Kumar Biswal, GRS of Bachhalo GP remained absent from office duty from date 15.11.2019 AN and did not join in his new place of posting i.e Gadaharishpur under Erasama Block disobeying the order of Hon'ble High Court as well as his Higher Authorities which amounts to serious misconduct, negligence & dereliction of duty."

The above ground is untenable for the reason

that no action worth the name was taken against the

Petitioner for the so-called 'serious misconduct,

negligence and dereliction of duty'. Not having taken

any action at the relevant time, it is obviously not open

to them to cite the ground of misconduct etc. at this

belated stage.

11. For the foregoing reasons therefore, the rejection

of the representation of the Petitioner on the above

grounds cannot be sustained. The Petitioner must be

deemed to have been in employment all through

thereby satisfying the requirement of rendering 5 years