Orissa & Ors Vs. Sri Kishore Chandra Samal
& Ors  INSC 97 (24 March 1999)
S.N.Phukan RAJENDRA BABU, J. :
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
inter-changeable 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.
(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.
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.
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
inter- changeable 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.
question of parity in pay and duties and responsibilities would arise only in
case of constituting a cadre by integrating several cadres. In the present
cases, there is no integration of cadres inasmuch as the respondents and others
working in the common cadre would constitute one single cadre, as noticed by
the High Court.
that position is correct, it hardly lies in the mouth of the respondents to
contend that they cannot be equated with other employees working in the other
sections of the municipalities. In the present case, all of them belong to one
cadre and it is the first time when the State is constituting the cadre as
provided under the Rules.
when the posts were inter- changeable and the responsibilities discharged by
the respondents and others were identical in constituting such a service the
action of the State appears to us to be unexceptionable.
this view of the matter, we think the High Court was not justified in quashing
the transfer order and the view taken in Rabinarayan Vyas v. State of Orissa in
O.J.C. No. 930 of 1979 appears to be correct and not the view taken in other
cases referred to in the course of the judgment of the Full Bench decision.
appeals, therefore, stand allowed. However, in the circumstances of the case,
each of the parties would bear their own costs. Civil Appeal No. ./99 [@ S.L.P.
(C) NO. 16192/93] Leave granted.
this appeal, the appellants called in question circular dated November 17, 1990 from the State Government to the
Executive Officers of all the Municipalities in the State to revert employees
promoted irregularly and report compliance by December 15, 1990. The appellants approached the High Court and status quo
was continued under interim orders. Thereafter the High Court, after
considering the entire matter observed that they would not have allowed
reversion of the appellants on the grounds mentioned in the impugned circular.
But the High Court found that because of the decision in Kishore Chandra Samal
& 39 others vs. State of Orissa & Ors., 1992 (I) OLR 544, the persons
like the appellants who were serving in the octroi section could not be brought
or appointed or promoted as clerks. On that short ground, the High Court set
aside the promotions given.
the said Full Bench decision, the High Court further directed the Government to
reconsider the matter while the promotions given had to be set aside. Now that
we have allowed the States appeals against the decision in the Kishore Chandra Samal
case in C.A.Nos.4875-76/92, this appeal has to be allowed and the order made by
the High Court shall stand set aside and the reversions made under impugned
circular shall stand quashed. Thus the writ petition filed by the appellants
shall stand allowed. The appeal is disposed of accordingly.