AMULYA CHARAN SATPATHY Vs. SECRETARY ORISSA STATE

JUDGEMENT

(1.) THE petitioner an U. D. Clerk under the Orissa State Electricity Board has come before this Court seeking the reliefs of maintaing his senbrity in acordance with his date of appointment as. L. D Clerk on 3 -7 1971 and quashing of the promotion of opp. party 4 alleged to have been made on the basis of wrong determination of seniority. The facts in brief are that the petitioner was appointed on 3 -3 -1971 as L.D. Clerk in the office of the Superintending, Engineer, Berhampur, but wss transferred to the Cuttack Electrical Circle on 29 -12 -1973. A gradition list was published in 1978 (Annoxure -3) wherein the petitioner was shown at Serial 67 with his date of appointment as 3 -7 -1971 and also showing the very same date from which his seniority was counted. Subsequently, though the O. P. 4 was junior to him having been appointed on 23 -10 -1971 yet he was promoted on 16 -3 -1982 as U D. Clerk superseding him. Being aggrieved by such supersession the petitioner filed the present petition. During pendency of the petition in this Court, the seniority list was modified on 30th October, 1985 in Annexure -12 showing the petitioner's seniority in the cadre as having been computed from' 12 -1 -1974 i'e., the date on which he Joined the Cuttack Electrical Circle. In the list a remark was made as against his name that he had joined the Cuttack Electrical Circle after having been brought over on transfer from the Electrical Circle, Berhampur and that his seniority is disputed as pending in this Court in the case.

(2.) A counter affidavit has been filed by the opp. parties contending that the transfer of the petitioner was on mutual basis on his own application and that due to such reason his seniority has been placed below all the incumbents in the cadre on the date of the transfer, and as regards the promotion of O. P. 4, it is contended that it was made against reserve quota to which the petitioner could not have any claim.

(3.) MR . B. K. Nayak, learned counsel appearing for the O. P. 4 has, fin support of the new seniority assigned to the petitioner, placed reliance upon a decision of the O. S. E. B. purported to have been conveyed in a Setter of 26th May, '1976 to the Superintending Engineer, Cuttack Circle that in case of cadre transfers the transferee will get the seniority from the date of his joining in the Division and/or the Circle if the transfer is made at his own request. Such submission of Mr. Nayak does not appear to have any substance. The clarification issued in the letter relied upon ex faoie, on its own terms, relates to only transfers made at one's requests. A; is well known, cadre transfer in any service may be made in three different ways. Firstly, an employee may be transferred by the employer at his discretion in exigencies of the service; secondly, the transfer may be made at the employee's own request which is usually known as taking a voluntary transfer; and thirdly, two employees belonging to two different cadies offices may agree for a mutual transfer as between them. The rule of seniority commonly accepted so far as the three types of transfers are concerned, are different from each other, but all such rules are only based upon the principles of fairplay and equity. So far as transfer by the employer at his own instance for exigencies of service is concerned, an employee transferred to a different cadre is not to be adversely affected with regard to his seniority on the basis of his appointment/promotion and. is ordinarily to retain the same in the new cadre. Where the employee himself seeks a transfer for some reason of his own, he cannot be permitted to take his own seniority to the. new cadre to the detriment of others already in the cadre and hence must find his seniority below everybody also in the cadre on the date of the transfer. So far as mutual, transfer is concerred,it is the common practice that the the transferees exchange their positions in seniority subject to the condition that a transferee by such process does not march ever the existing incumbents who are otherwise his seniors and in such case the transferee takes the seniority on the basis of his date of recruitment/promotion. This is the distinction between the fixations of seniority between the three types of transfers and in the absence of any rule to the contrary, is to be the basis for determination of seniority.