Surendra Kumar Jena vs State Of Odisha And Others
2025 Latest Caselaw 267 Ori

Orissa High Court

Surendra Kumar Jena vs State Of Odisha And Others on 7 May, 2025

Author: Murahari Sri Raman

Bench: Murahari Sri Raman

  IN THE HIGH COURT OF ORISSA AT CUTTACK
                         W.A. No.685 of 2025

Surendra Kumar Jena                               ....                 Appellant

                                     -Versus-
State of Odisha and others                        ....             Respondents



Advocates appeared in this case:
For the Appellant                :       Mr. Sameer Kumar Das, Advocate

For the Respondents              :       Ms. Aishwarya Dash
                                         Additional Standing Counsel


                      CORAM:
            HON' BLE THE CHIEF JUSTICE
                        AND
      HON'BLE MR. JUSTICE MURAHARI SRI RAMAN

                          JUDGMENT

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Date of hearing and Judgment: 7th May, 2025

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HARISH TANDON, CJ.

1. Challenging the office order dated 10th March, 2025 issued

by the Director, Higher Education deploying the appellant in

Naami College, Naami in the district of Bhadrak on the

administrative ground, the appellant filed a writ petition being

W.P.(C) No.7783 of 2025 before the learned Single Judge. The

said writ petition was disposed of with categorical finding that the

moment such transfer was necessitated by an administrative

exigency, the writ Court should be slow and circumspect in

interfering with such administrative order.

2. The appellant was permitted to join the transferred post

with the rider that it would not be construed as an acquiescence or

waiver of their rights and shall be without prejudice to their rights

and contentions.

3. The pivotal issue involved in the instant writ appeal is

whether the Director of Higher Education is within its competence

to transfer the ministerial staff from one institution to another

institution within the revenue district.

4. The respective counsel are ad idem on the applicability of

the Odisha Non-Government Aided Colleges Ministerial Service

(Method of Recruitment and Conditions of Service) Rules, 1999.

According to the respective counsel, the provisions contained in

the aforesaid Rules have to be interpreted in a meaningful manner

so as to render it workable than to make it redundant.

5. The reliance is placed on the definition of a common

cadre given under Rule-3(e) of the said Rules to mean the common

cadre of the ministerial employees of the Non-Government Aided

Colleges in respect of a revenue district. Rule-4 of the said Rules is

more expansive imbibing within itself, several ministerial posts

which include the Junior Clerk, the Cashier, the Junior Accountant,

the Senior Clerk and the Head Clerk of the Non-Government

Aided Colleges. A striking feature can be noticed from the

language employed in Rule-4 of the said Rules that those

ministerial employees mentioned in Rule-4 shall form a separate

cadre meaning thereby they would constitute a homogenous class

as an offshoot of the common cadre.

6. We are not unmindful of the proposition of law that the

transfer being an incident of service, the employer reserves his

right to transfer its employee from one organization to another

provided both the organizations are within their administrative

control.

7. The writ Court does not encourage any proceedings at the

behest of an employee challenging an order of transfer, unless such

order is beyond the Rules applicable in this regard or is tainted

with malice or perceived to be a punitive in nature. The

Administrative exigency is an expression of a wide connotation

and has to be understood both subjectively and objectively. In

order to run the smooth administration, the authorities have a right

to transfer any employee from one place to another but the moment

such transfer is apparently contrary to the mandate of the statutory

Rules, such order is susceptible to be interfered with as the

authority cannot transgress their statutory limits set forth in the

Rules. Any action of the statutory authority beyond the

circumference of the statutory provisions is liable to be interfered

under Article 226 of the Constitution of India as it is an ardent duty

of the Court to put the authorities within the precincts of law and

should not encourage any departure or violation thereof.

8. Though we do not find any incongruity and/or

inconsistency between Rule-3(e) and Rule-4, yet the Government

was of the view that there appears to be an ambiguity in

interpreting and/or implementing the aforesaid provisions and in

exercise of powers under Rule 16, the clarificatory circular was

issued vide No. HE-NCET-I-POLICY-0002-2021-15521,

Bhubaneswar, dated 16th April, 2022 addressed to all the Principals

of the Non-Government Aided Colleges stipulating that the

employees of the Non-Government Colleges who are in receipt of

grant-in-aid in terms of the G.I.A. Order 2004/ 2008/ 2009/ 2014

do not belong to a State wide common cadre and, therefore, are not

transferable from one institution to another. The said notification is

reproduced as under:

"GOVERNMENT OF ODISHA HIGHER EDUCATION DEPARTMENT ***

No.HE-NCET-I-POLICY-0002-2021 15521// Bhubaneswar, dated 16.04.2022

From Saswat Mishra, IAS Principal Secretary to Government To The Principals (488 & 662 categories of Non-Government Aided Colleges) Sub: Transferability of employees receiving grant-

in-aid under GIA Orders 2004/2008/2009/2014 Madam/Sir, There is doubt in certain quarters as regards the transferability of employees in Non-Government Colleges who are in receipt of grant-in-aid under GIA Orders 2004/2008/2009/2014.

It is hereby clarified that since such employees do not belong to the state-wide common cadre, they are not transferable from one institution to another.

                                       Yours faithfully

                             Principal Secretary to Government

        Memo No. 15522             //Date-16.04.2022

Copy to the Regional Director of Education, Balasore/ Berhampur/ Bhubaneswar/ Jeypore/ Sambalpur for information and necessary action.

Principal Secretary to Government"

9. Though the definition of the common cadre under Rule-

3(e) engulfed all the ministerial employees of the Non-Government

Aided Colleges in respect of a revenue district, but Rule-4 thereof

impliedly excludes certain ministerial employees like the Junior

Clerk, the Cashier, the Junior Accountant, the Senior Clerk and the

Head Clerk of the Non-Government Aided College therefrom and

to form a separate cadre.

10. The moment the ambiguity was perceived between a

common cadre of the ministerial employees and the separate cadre

encompassing certain ministerial employees, such clarificatory

circular was issued so that the employees of the Non-Government

Aided Colleges receiving grant-in-aid shall remain in the

institution and should not be transferred to another institution.

11. The moment the Government has taken a conscious

decision by issuing a clarificatory circular and the source of power

to issue such circular emanates from the statutory Rules, the

adherence thereof is inevitable and the statutory authority cannot

transgress the rigor of the same and take a decision contrary there

to.

12. Ms. A. Dash, learned Additional Standing Counsel for the

State tried to impress the Court that the provisions contained in the

said Rules should receive a purposive construction instead of

literal construction. As according to her, the transfer of an

employee from one institution to another within the revenue

district on the ground of administrative exigencies does not violate

any of the provisions of the said Rules. Though the argument

appears attractive but the moment the Government has issued a

clarificatory circular conveying a laudable intention that the

employees of the Non-Government Aided Colleges receiving

grant-in-aid cannot be transferred from one institution to another,

the scope of literal or purposive construction becomes mere

academic and, therefore, we need not invest much endeavor in the

above aspect.

13. Once the intention is evident and be gathered with

precession and clarity (in this case the clarificatory circular dated

16th April, 2022), the interpretation to various provisions has to be

assigned keeping in mind the intention of the law-makers and any

other interpretation which would run contrary thereto should be

avoided. Since a conscious decision is taken by the Higher

Education Department by issuing the said clarificatory circular

dated 16th April, 2022 that the employees of the Non-Government

Aided Colleges who receive grant-in-aid cannot be transferred

from one institution to another, it does not invite any interpretative

tool to be used to restrict its applicability to inter-revenue district

and not intra-revenue district.

14. We find that the judgment dated 20th March, 2025 passed

by the learned Single Judge in W.P.(C) No.7783 of 2025 cannot be

upheld and, therefore, the same is hereby set aside.

15. Consequently, the order of the Director, Higher Education

dated 10th March, 2025 is hereby quashed and set aside. The writ

petition shall be deemed to be disposed of in the light of the

observations made hereinabove.

16. The appeal is thus disposed of, however, in the

circumstances with no order as to costs.

(Harish Tandon) Chief Justice

(M.S. Raman) Judge

S. Behera A. Nanda

Designation: Junior Stenographer

Location: High Court of Orissa, Cuttack Date: 08-May-2025 12:33:19