BANSHIDHAR DASH Vs. STATE OF ORISSA AND ORS.

JUDGEMENT

(1.) THE Petitioner was initially appointed as a Clerk in the Lodging -house Fund, Puri with effect from 5.4.1955. He was promoted to the post of Head Clerk in the said establishment on 30.6.1981. Although he was due to retire on superannuation at the age of 58 years, he has been compulsorily retired at the age of 55 years by Office Order dated 24.8.1992 of the District Magistrate and President. Lodging -house Fund Committee, Puri in pursuance of Clause (a) of Rule 71 of the Orissa Service Code. Aggrieved, the Petitioner has filed this writ petition for quashing the said order of compulsory retirement and for directing the opposite parties to continue him in service till he attained the age of superannuation and for all consequential service benefits.

(2.) MR . T.K. Patnaik, learned Counsel for the Petitioner, submitted that the impugned order of compulsory retirement was passed on the recommendations of the Review Committee, but the Review Committee has not been constituted m accordance with the instructions of the State Government dated 24.11.1987. Clause 6 of Annexure -1A of the said instructions dated 24.11.1987 of the State Government, on which Mr. Patnaik relied on, describes the composition of the Review Committee in case off Class III employees in a district or subordinate office in respect of whom the Head of the District Off ice is the appointing authority. Clause 6 of Annexure -1A of the instructions of the State Government dated 24.11.1987 is quoted herein below: Mr. Patnaik argued that as per the aforesaid Clause 6 of Annexure -1A of the instructions, the Review Committee is to comprise of Head of the District Office who is to act as the Chairman and two other officers nominated by the Head of the Department. According to Mr. Patnaik the Head of the Department for Lodging -house Fund, Puri is the Member, Board of Revenue because under Section 21 of the Bihar and Orissa Places of Pilgrimage Act, 1920 (in short, 'the Act") under which the Lodging -house Fund Committee, Puri has been constituted, it is the Member. Board of Revenue who has the control over the Lodging house Fund, Puri. In support of this contention, he relied on the counter affidavit filed on behalf of opposite parties 1 and 2 as well as the communication dated 26.10.1997 of the Director, Municipal Administration, Orissa, to the Joint Secretary, Board of Revenue, Orissa, annexed there to Mr. Patnaik argued that the Review Committee for the Head Clerk, who is a Class III employee in the Lodging -house Fund, Puri as per Clause 6 of Annexure 1 -A of the instructions dated 24.11.1987 of the State Government, should comprise of the District Magistrate who is the Chairman of the Lodging -house Fund Committee, Puri and two other officers, nominated by the Member, Board of Revenue. But, in this case while the District Magistrate. Puri acted as the Chairman of the Review Committee, there was no officer nominated by the Member. Board of Revenue in the Review Committee and instead, officers nominated by the District Magistrate and Chairman of the Lodging -house Fund Committee, Puri were members of the Review Committee. In reply, Mr. G.A.R. Dora appearing for opposite party Nos. 3 and 4, submitted that under Section 20 of the Act the State Government has appointed, the Lodging -house Fund Committee, Puri with the District Magistrate, Puri as its ex officio President. The District Magistrate. Puri acting as such ex officio President of the Lodging -house Fund Committee, Puri has appointed the Petitioner as a Clerk in the said establishment and also has promoted him of the post of Head -Clerk in the Mid establishment. Mr. Dora argued that the District Magistrate, Puri as the ex officio President of the Lodging -house Fund Committee, Puri is thus the appointing authority of the Petitioner and the Petitioner has been working under him. The District Magistrate. Puri and not the Member, Board of Revenue is, therefore, the Head of the Department in respect of the establishment in which the Petitioner was working. Regarding the communication dated 26.10.1997 of the Director, Municipal Administration, Orissa, to the Joint Secretary, Board of Revenue, annexed to the counter affidavit filed on behalf of opposite parties 1 and 2, Mr. Dora submitted that the said communication itself says that the Member, Board of Revenue, Orissa, is the appellate authority against the orders of the President of the Lodging -house Fund Committee, Puri in respect of disciplinary and service matters of the employees of the Lodging -house Fund, Puri and does not say that the Member, Board of Revenue, Orissa, is the Head of the Department in respect of the Lodging -house Fund Committee, Puri. Mr. Dora pointed out that the Review Committee which reviewed the performance of the Petitioner, comprised of the District Magistrate, Puri who is the ex officio President of the Lodging -house Fund Committee, Puri and officers nominated by the District Magistrate and President of the Lodging -house Fund Committee Puri. Thus, the Review Committee, according to Mr. Dora, had been constituted in accordance with Clause 6 of Annexure 1 -A of the instructions of the State Government dated 24.11.1987.

(3.) SUB -section (2) of Section 20 and Section 21 of the Act which are relevant for deciding the contentions raised by Mr. Patnaik and Mr. Dora are quoted below: 20. (1) xx xx xx