STATE OF ORISSA Vs. KISHORE CHANDRA SAMAL

JUDGEMENT

(1.) 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 interchangeable 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 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.

(2.) 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.

(3.) 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 interchangeable 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.