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PETITIONER: STATE OF ORISSA & ORS.

       Vs.

RESPONDENT: SRI KISHORE CHANDRA SAMAL & ORS.

DATE OF JUDGMENT:       24/03/1999

BENCH: S.R.Babu S.N.Phukan

JUDGMENT:

RAJENDRA BABU, J.  :

     The  State  of Orissa issued a notification on  August 31,  1976  grouping  different posts in  the  municipalities within  a cadre and as a result thereof the respondents were transferred  from  the  posts of Octroi Inspector  to  Lower Division Clerk or Junior Assistant and Octroi Superintendent as Senior Assistant.  The stand of the appellants before the High Court and in this Court is that all the respondents had been    initially    appointed      as    Lower     Division Clerk-cum-Assistant  Octroi  Superintendents and on  several occasions  they have been transferred to the general section and  from the general section to the octroi section.   There is   no   separate  cadre  of  Octroi   Superintendents   or Inspectors.   When  all  the  respondents  and  other  Lower Division   Clerks   were  holding   the  posts  which   were inter-changeable  and  within one cadre, transfer  from  one post  to another cannot be really questioned.  The stand  of the respondents has been that under Section 81 of the Orissa Municipal  Act  [hereinafter referred to as the  Act]  the State Government is empowered to create a Local Fund Service and  can make rules regulating the classification, method of recruitment,  conditions  of  service, pay  and  allowances, discipline   and  conduct  of   the  officers  and  servants belonging  to the Local Fund Service and such rules may vest jurisdiction  in  relation  to  such service  in  the  State Government  or in such other authority or authorities as may be prescribed therein.  The proviso to Section 81 stipulates that  the terms and conditions of service shall not be  less favourable  than which were applicable immediately prior  to such constitution.  Rule 3(1) prescribes that the Local Fund Service  shall  be  constituted by the State  Government  as provided  under Section 81(1) of the Act which includes such of  the  posts  of the municipalities as  specified  by  the Government  from  time  to  time by order  in  that  behalf. Sub-rule  (2) therein indicates that on constitution of  the service  under  sub-rule  (1) the posts of  the  equal  time scales  having duties and degree of responsibilities of  the same  nature in the municipalities shall form one cadre.  It is submitted that a combined reading of these two provisions would  make  it  clear  that   the  State  Government  while constituting the Local Fund Service and while constituting a cadre  of  the  municipal  employees is guided  by  the  two conditions,  namely,  (i)  that they must be in  equal  time

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scales and, (ii) their duties and degree of responsibilities of  the posts must be of the same nature.  Therefore, it  is contended that the action of the respondents in constituting a  common  cadre of officials in the octroi section and  the general  section is not proper.  This argument was  accepted by  the Full Bench of the Orissa High Court and,  therefore, the action taken by the appellants was set aside.

     The  High Court took the view that the respondents who were  working  in  the  octroi   section  cannot  claim   to constitute  an independent cadre by themselves.  But it took the  view that the guidance as to nature of responsibilities and  duties  discharged by respondents provided  under  Rule 3(2)  of the Rules, adverted to earlier, was ignored by  the authorities and, therefore, they could not class in the same cadre as those in the general cadre.

     In this batch of appeals the arguments advanced by the respective  parties  before  the High Court  are  reiterated before us.  When the respondents had been appointed as Lower Division  Clerk-cum-Assistant Octroi Superintendents and the posts  in the octroi section and the general section in  the municipalities  were  inter-  changeable prior  to  impugned Rules  and  action thereto and when the finding of the  High Court  is  that those working in the octroi section  do  not constitute a separate cadre, we fail to understand as to how the  respondents can claim that while constituting the cadre they  cannot  be  grouped along with others working  in  the general section.

     The  question  of  parity  in   pay  and  duties   and responsibilities  would arise only in case of constituting a cadre  by integrating several cadres.  In the present cases, there   is  no  integration  of   cadres  inasmuch  as   the respondents  and  others working in the common  cadre  would constitute  one single cadre, as noticed by the High  Court. If  that position is correct, it hardly lies in the mouth of the  respondents to contend that they cannot be equated with other  employees  working  in  the  other  sections  of  the municipalities.   In the present case, all of them belong to one  cadre  and  it  is the first time  when  the  State  is constituting   the  cadre  as   provided  under  the  Rules. Therefore,  when  the posts were inter- changeable  and  the responsibilities  discharged  by the respondents and  others were  identical in constituting such a service the action of the State appears to us to be unexceptionable.

     In  this  view of the matter, we think the High  Court was  not  justified in quashing the transfer order  and  the view taken in Rabinarayan Vyas v.  State of Orissa in O.J.C. No.   930  of  1979 appears to be correct and not  the  view taken  in  other  cases  referred to in the  course  of  the judgment of the Full Bench decision.

     The  appeals,  therefore, stand allowed.  However,  in the  circumstances  of the case, each of the  parties  would bear their own costs.  Civil Appeal No.  ./99 [@ S.L.P. (C) NO.  16192/93]

     Leave granted.

     In  this  appeal,  the appellants called  in  question circular  dated November 17, 1990 from the State  Government to  the Executive Officers of all the Municipalities in  the State  to  revert employees promoted irregularly and  report

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compliance  by December 15, 1990.  The appellants approached the  High  Court and status quo was continued under  interim orders.   Thereafter  the High Court, after considering  the entire  matter  observed  that they would not  have  allowed reversion  of the appellants on the grounds mentioned in the impugned circular.  But the High Court found that because of the decision in Kishore Chandra Samal & 39 others vs.  State of  Orissa  & Ors., 1992 (I) OLR 544, the persons  like  the appellants  who were serving in the octroi section could not be  brought  or  appointed or promoted as clerks.   On  that short ground, the High Court set aside the promotions given. Following  the  said  Full Bench decision,  the  High  Court further  directed  the Government to reconsider  the  matter while the promotions given had to be set aside.  Now that we have allowed the States appeals against the decision in the Kishore  Chandra  Samal  case  in  C.A.Nos.4875-76/92,  this appeal  has  to  be allowed and the order made by  the  High Court  shall  stand set aside and the reversions made  under impugned  circular  shall  stand  quashed.   Thus  the  writ petition  filed by the appellants shall stand allowed.   The appeal is disposed of accordingly.