KISHORE CHANDRA SAMAL AND 39 ORS. AND SARAT @ SHARAT CHANDRA PADHI Vs. STATE OF ORISSA AND ORS. AND CHAIRMAN-CUM-COLLECTOR, CUTTACK MUNICIPALITY

JUDGEMENT

(1.) - - - - 1. A common question of law is involved in both these writ applications and, therefore, these cases have been heard together and are being disposed of by this common Judgment. The order of transfer of the petitioners under Annexure -1 is the subject matter of challenge. The question ' of law raised in these two applications is whether the personnel belonging to the Octroi Section of a Municipality from a cadre by themselves and are, therefore, not to be transferred to any other posts, notwithstanding the provisions of the Orissa Local Fund Service Rules, 1975

(2.) THE Government of Orissa had issued a Notification on 31 -8 -1976 grouping different posts in the Municipalities within a cadre and it is because of the said notification, the petitioners have been transferred from one post to the other within the cadre so formed by the Government in the notification referred to earlier. The aforesaid Notification had been challenged by an employee of the Berhampur Municipality and a Bench of this Court in the said case of R Babu Rao v. Executive Officer, Berhampur Municipality and Ors., reported in 1986 (II) OLR (NOC), 62 (1986) CLT, 593 after analysing the different provisions of the Orissa Municipal Act came to hold that there being no similarity in the nature of duties and degree of responsibilities of the posts which have been grouped in one cadre under the Notification, the said grouping contravened the provisions of the Orissa Municipal Act as well as was violative of Article 16 of the Constitution. On the aforesaid conclusion, the transfer of the petitioner of the said writ application from Octroi Inspector to Lower Division Clerk was quashed. This decision was again followed by another Bench of this Court in OJC No. 3226 of 1937 (Hemanta Kumar Ratha v. State of Orissa and Ors.) disposed of on 13th November, 1988, whereunder the transfer of an Octroi Inspector to the post of a Junior Assistant was quashed. The aforesaid decision in K. Babu Rao's case was also followed in yet another decision of this Court in O. J. C. No. 2893 of 1981 (Dwarikanath Panigrahi v. State of Orissa and Ors.), disposed of on 11th July, 1989, whereunder the direction of the Government to adjust an Octroi Superintendent as a Senior Assistant was set aside. When the present case came up before the Division Bench, the learned counsel for the Municipality brought it to the notice of the Division Bench that an earlier Bench decision of this Court in the case of Rabinarayan Vyas v. State of Orissa, (O. J. C. No. 930 of 1979, disposed of on 16 -5 -1980) had not been brought to the notice of any of the three Division B inches, referred to supra, and that in Rabinarayan's case, the Court had taken a different view of the matter and because of the inconsistency between the Bench decisions, the matter was referred to a larger Bench.

(3.) THE petitioners were continuing in different posts in the Octroi Section of the Municipality. By the impugned order of transfer they have been posted against different posts. The scale of pay of the posts to which they have been transferred is equal to the scale of pay which they were getting while serving under the Octroi Section. But they allege in the writ applications that the Octroi Section itself constitutes a cadre and, therefore, personnel from that cadre cannot be transferred to any other Section of the Municipality forming a different cadre.