The Odisha High Court recently comprising of a bench of Justice B.R. Sarangi observed that in matter to stemming from administrative transfer orders, any transfer order pertaining to the State education authorities when taken in the absence of a quorum in a materialized meeting would be deemed to be without jurisdiction. (Surya Narayan Mishra V State of Odisha) (Rajashree Pattnaik v. State of Odisha and others)
The bench took the aforesaid approach in the light of the Odisha Primary Education Programme Authority (hereafter ‘OPEPA’) rules for the transfer of employees. The bench scrutinized the jurisdiction of administrative transfer orders in light of ‘administrative exigencies’.
Facts of the Case
The petitioner therein was engaged as Financial Consultant in the DPO on contractual basis with remuneration of Rs.6,000/- per month. While he was so continuing, he was disengaged and again re-engaged at DPO, Ganjam, While working as such, again he was re-engaged at DPO, SS, Kendrapara and continuing as such till the impugned order of transfer was passed by the authority, by which he has been transferred from DPO, SS, Kendrapara to DPO, SS Bolangir.
Essentially, the writ petition have been filed by the contractual employee working under the OPEPA in different capacities seeking to quash the orders of transfer issued against them. The opposition party has maintained its ground that any contravention of transfer orders shall be punishable according to OPEPA Service Rules and Regulations, 1996.
The issue of transfer and posting has been considered time and again by the apex Court and law has been settled by a catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. It does not affect the conditions of service in any manner.
Contention of the Parties
The learned counsel appearing for the petitioners in both the writ petitions contended that to regulate the service conditions of the employees of the OPEPA, under Clause-5(n) of the Memorandum of Association of the Orissa Primary Education Programme Authority read with Rule 36 of the Rules and Regulations made thereunder, “The Orissa Primary Education Programme Authority Service Regulations, 1996” were framed.
It was contended that in the said OPEPA Service Rules & Regulations, 1996 there is no provision for transfer of OPEPA employees from one place to other, nor has any transfer policy been framed by the OPEPA till 2018. But, for the first time, on 17.12.2018 guidelines for transfer of contractual employees working at State Project Office, District Offices and Block Level Offices under RTE-SSA, Odisha were framed, which also do not contemplate for transfer or deployment of employees working under SPO, DPO & Block Level Offices under SSA. It is further contended that taking into consideration the merger of OPEPA with RMSA to form one society, namely, “Odisha School Education Programme Authroity” (OSEPA), Government was pleased to accord permission for formulation of the guidelines for inter-district and intra-district transfer/deployment, and rationalization of employees working at SPO, DPOs and Block Level Offices under RTE-SSA.
It was further contended that so far as the transfer in respect to contractual employees is concerned, it is not permissible by the said guidelines, and, more so, the said guidelines cannot be given effect to as the same have been formulated by a committee having lack of quorum. Therefore, he seeks for quashing of the impugned orders of transfer passed by the authority concerned.
The learned Senior Counsel appearing along with Mr. P. Mohanty, learned counsel for opposite party no.2 vehemently contended that Rule24 of the OPEPA Service Rules and Regulations, 1996, which deals with travelling allowance, clearly envisages that the employees in case of their transfer from the State Project Office to any DPO or from one DPO to another DPO shall be entitled to travelling allowance, daily allowance and transfer T.A.. Thereby, the posts held by the petitioners are transferable and, as such, they are entitled to travelling allowances as per Rule 24 read with Appendix-B of the said Rules.
It was further contended that Rule-12 under Chapter-V deals with “Cadre”, which indicates that directly engaged employees in the State Project Office shall be in a common cadre. The staff in all the district offices shall form a separate cadre. Thereby, the petitioners having been engaged in district offices, they form a separate cadre and as such they are liable for transfer. Consequentially, impugned orders of transfer have been given effect to and, thereby, no illegality or irregularity has been committed by transferring such employees. It is contended that when the transfer has been made on administrative ground, as has been indicated in the impugned orders, even though the petitioners are contractual employees, for smooth administration if the order of transfer has been effected, thereby, no illegality or irregularity has been committed by the authority concerned.
It was further contended, by referring to Rule-24, that transfer is applicable to contractual employees from the State Project office to District Project office and also from one District Project office to another District Project office. The petitioners, having been engaged in a project on contractual basis, are not holding any civil post and, therefore, the services of contractual employees are coterminous with the implementation of the project. It was further contended that as per Section-45 of the OPEPA Memorandum of Association, the Executive Committee of OPEPA headed by the Chief Secretary as the Chairman and the Secretary of S & ME Department as Vice-chairman and State Project Director as the Member Secretary are the competent authorities who have the power to frame and amend the regulations pertaining to service matter of SPO/DPO including creation of post, qualification, selection procedure and emoluments, disciplinary controls as well as classification, control and appeal rules.
Accordingly, the transfer policy of contractual employees working under OPEPA/OSEPA has been framed as per the approval of the Chairman, EC, OPEPA in the 36th Executive Committee, OPEPA and in such guideline dated 17.12.2018 the provision for transfer of contractual employees is there. Thereby, pursuant to such guideline, if the orders of transfer have been passed, the same cannot be said to be illegal or subjected to judicial scrutiny in the writ jurisdiction of this Court. Thereby, it was contended that both the writ petitions should be dismissed on the grounds mentioned above.
Courts Observation & Judgment
The bench observed, “It is admitted fact that both the petitioners had been engaged as contractual employees under the OPEPA/OSEPA and from the date of their engagement they have been discharging their duty. Even in some places they had been disengaged and re-engaged and in some places with the closure of the project they had been directed to discharge their duty in new places. But, by means of these two writ petitions, they seek to quash the orders of their transfer.
So far as transfer in general is concerned, the issue of transfer and posting has been considered time and again by the apex Court and law has been settled by catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. It does not affect the conditions of service in any manner. The employee does not have any vested right to be posted at a particular place. These principles have been decided in B. Varadha Rao v. State of Karnataka, AIR 1986 SC 1955 : (1986) 4 SCC 131; Shilpi Bose v. State of Bihar, AIR 1991 SC 532 : (1991) SCC 659.”
The court opined that merely writing the words “administrative exigencies” cannot create a field for the transfer of contractual employees for whom no service rules and guidelines have been framed. As such, the guidelines, which have been relied upon in the present case, cannot be construed to be a guideline as the same have been framed with lack of quorum. Thereby, the impugned orders of transfer so passed by the authority concerned are without jurisdiction.
The court referred to the judgment in the case of Hari Prasad Mulshanker Trivedi v. V.B. Raju, [AIR 1973 SC 2602], wherein the Apex Court held that the word “jurisdiction” is an expression which is used in a variety of senses and takes its colour from its context. Whereas the pure theory of jurisdiction would reduce jurisdictional control, to a vanishing point, the adoption of a narrower meaning might result in a more useful legal concept even though the formal structure of law may lose something of its logical symmetry
The court ruled that “It is made clear that in absence of any provision contained in OPEPA Service Rules and Regulations, 1996 read with the guidelines dated 17.12.2018 and the decision taken in 36th Meeting of the Executive Committee of OPEPA held on 21.03.2018 with regard to formulation of transfer/deployment policy as per clause-11.2 thereof, the impugned orders passed by the authority transferring the petitioners, who are contractual employees, are without jurisdiction.”
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SOURCE ; .latestlaws.com
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