PHULAMANI MANDI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner has filed this application seeking to quash Annexure -8 the office order dated 27.08.1994 under which the petitioner has been posted to the D.C.I.O., Kalahandi as U.D. Asst. instead of Mayurbhanj and Annexure -13 the office order dated 11.11.1994 refusing to extend the benefit of U.D. Asst. under Rule 56 of the Orissa Service Code and further seeks for a direction to the opposite parties to sanction, draw and disburse the due scale of pay admissible to the post of U.D. Asst. w.e.f. 3.5.1994 with all consequential service benefits.

(2.) THE short fact of the case in hand is that the petitioner was recruited as a Junior Assistant by the Orissa Khadi & Village Industries Board (hereinafter referred to as 'the Board') and was promoted to the post of U.D. Assistant on recommendation of the Departmental Promotion Committee vide order dated 10.02.1994 under Annexure -1 and posted to D.C.I.O., Keonjhar. Due to family problem, she represented to the Secretary on 17.02.1994, which was forwarded by the D.C.I.O., Mayurbhanj on 18.02.1994 to the Secretary for necessary consideration. The representation of the petitioner was considered by the President and vide order dated 28.04.1994 under Annexure -4 the petitioner was posted as U.D. Assistant under DCIO, Mayurbhanj vide Smt. Sujata Sahoo, U.D. Assistant transferred on promotion. Thereafter, the petitioner submitted her joining report on 3.5.1994 as U.D. Assistant which was forwarded by the DCIO, Mayurbhanj to the Secretary vide letter dated 4.5.1994. Consequently, the petitioner was directed by the DCIO, Mayurbhanj to be in -charge of the files and records dealt by Smt. Sujata Sahoo under Memo No. 2666 (2) dated 31.08.1994. But by office order dated 27.08.1994 vide Annexure -8 in partial modification of the order dated 28.4.1994 the petitioner was posted at Kalahandi as U.D. Assistant instead of Mayurbhanj until further orders with the condition that her promotion order would be cancelled in case she failed to join her new headquarters within the scheduled period. On receipt of the said order of transfer, the petitioner represented before the authority concerned along with an application for forwarding her representation to the Secretary for immediate action/consideration of such order. Since the petitioner was discharging her duty as U.D. Assistant from 3.5.1994 by order of the Board, she made representation to the Secretary for fixation of her scale of pay as UD Asst. working under establishment of DCIO, Mayurbhanj. Consequently, the petitioner who was promoted to the post of U.D. Assistant pursuant to the office order dated 28.04.1994 under Annexure -4 and discharged her duty since 3.5.1994 has been reverted back to the lower rank i.e. Junior Assistant after assuming office as U.D. Assistant for more than six months in order to accommodate Smt. Sujata Sahoo who did not accept the post of Sr. Asst. in whose place the petitioner was continued as U.D. Assistant. The petitioner's grievance is that though she belongs to scheduled tribe community, she has been harassed by the authority, thereby the entire action taken by the authorities is violative of Articles 14, 16(1) and 46 of the Constitution of India.

(3.) MR . S. Das, learned counsel for opposite party No. 2 strenuously urged that in representation submitted by the petitioner in Annexure -9 against the order passed by the opposite party -Secretary transferring the petitioner from DCIO, Mayurbhanj to DCIO, Kalahandi the petitioner has specifically stated that she has personal difficulties, therefore she is not able to join in DCIO, Kalahandi. In the event she is not allowed to continue as U.D. Assistant in the office of the DCIO, Mayurbhanj, she would have no other go but to forego the promotion post to remain as usual as Jr. Assistant under DCIO, Mayurbhanj. She having not carried out the order of transfer and foregone the promotion, she is not entitled to get the benefit claimed by her. Therefore, the authority while considering the representation was justified in passing the impugned order under Annexure -13 dated 11.11.1994. Consequence thereof, the petitioner now cannot claim that she is entitled to get the benefits of U.D. Assistant and consequential scale of pay admissible to the post from the date of her joining in the post i.e. 3.5.1994.