Prafulla Kumar Samal vs Chairman, State Transport Authority and Others

R.N. Misra, J.—Petitioner joined service as a lower division clerk in the office of the Major Settlement Officer at Cuttack in the year 1967 and was retrenched from service on account of abolition of the post. His name was registered in the Planning & Co-ordination Department of the State Government for absorption in an appropriate post under the State Government on the basis of being a retrenched hand. On being reported of vacancies by the Transport Commissioner in his establishment, the Planning & Co-ordination Department recommended the name of the Petitioner for appointment in an existing vacancy in the office of the Regional Transport Officer, Cuttack (vide Annexure-2). The order of appointment was, however, issued by the Additional District Magistrate under Annexure-3 in the following terms:

In pursuance of the P & C Department letter No. 5892/Coord, dated 7-4-1970. Sri Prafulla Kumar Samal is hereby temporarily appointed as the L. D. Clerk in the scale of pay of Rs. 80.135/- with usual D. A. and posted as such to the office of the R.T.O., Cuttack against the post sanctioned by the Transport Department in their letter No. 3468/T. dated 28-2-1970.

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While Petitioner continued in the establishment of the Regional Transport Officer, on 8-7-1975, the Additional District Magistrate of Cuttack passed an order (Annexure-6) transferring him to a block outside Cuttack. Petitioner challenges the order of transfer passed by the Additional District Magistrate on the footing that Petitioner was not an employee of the Collectorate of Cuttack but belonged to the establishment of the Regional Transport Authority of Cuttack which is an independent organisation and, therefore, the order of transfer is not in accordance with law.

Opposite parties 1 and 2 have filed one counter affidavit while on behalf of opposite party No. 3, a separate counter affidavit has been filed. In both the counter affidavits, the order of transfer has been justified and it has been stated that the Petitioner has no justification to challenge the transfer. It has been contended that the Petitioner�s appointment having been made by the Additional District Magistrate as per Annexure-3, he must be taken to be the appointing authority and Petitioner, therefore, belongs to the Collectorate and not to the alleged independent establishment of the Regional Transport Authority.

The order of appointment in Annexure-3 clearly refers to the Planning & Co-ordination Department letter in terms whereof Petitioner had been sponsored for appointment in the existing vacancy in the office of the Regional Transport Officer at Cuttack. Under Annexure-2, to which reference has been made in Annexure-3, the Under Secretary to the State Government in the Planning & Co-ordination Department had advised the Regional Transport Officer thus:

With reference to your letter No. 4235 dated 31-3-1970 of Deputy Transport Commissioner, Cuttack (copy enclosed ), on the above subject, I am directed to recommend the names of the retrenched personnel for appointment against the vacancy reported in your letter under reference in the enclosed statement.

As per paras 2 and 6 of this Department Circular letter No. 10674(31) dated 22-8-1968, not interview has to be conducted in respect of the candidates recommended by this Department. A copy of the order offering the appointment to the candidates sponsored by this Department may be forwarded to this Department within 10 days from the date of receipt of the recommendation.

Undoubtedly, Petitioner was one of the two candidates recommended under the aforesaid letter and the order of appointment in terms was on the basis of the said recommendation. It is true that the Additional District Magistrate had signed the order of appointment. That, however, cannot be the deciding feature. The State Transport Authority as also the Regional Transport Authorities under the provisions of the Motor Vehicles Act are independent statutory bodies. Dispute arose as to whether the Regional Transport Authority of which the District Magistrate was the Chairman was a part of the Collectorate. In fact, in the case of one Sri K. C. Mohapatra who was employed in the establishment of the Regional Transport Authority of Keonjhar, a similar order of transfer to the Collectorate had been passed and as early as 1969, the Chairman of the State Transport Authority had passed the following order:

On a careful consideration of the representation filed by Sri Kishore Ch. Mohapatra, U.D.C. of the Office of the R.T.O., Keonjhar, I find that the order of the Chairman, R.T.A. (No. 1853/68/RT dated 21-8-1968) transferring Sri K.C. Mohapatra, U.D.C. of the office of the R. T. O., Keonjhar to the Keonjhar Collectorate is technically irregular as the office of the R. T. O. is not a part of the Collectorate Office and as such the said order is inoperative. Inform the Chairman, R.T.A., Keonjhar.

In fact, on 15th of June, 1965, the State Government in the Transport Department had decided to re-organise the staffing pattern in the establishment of the State Transport Authority as also in the establishments of the Regional Transport Authorities. The powers of licensing of drivers, conductors, registering and taxing of motor vehicles, assessment and collection of motor vehicles tax were withdrawn from the Police Department and the Chairman of the State Transport Authority and each of the Chairman of the Regional Transport Authorities with the assistance of Regional Transport Officers were asked to discharge the said duties. In 1966, the Transport Commissioner clarified the position regarding the status of the establishments of the Regional Transport Authorities by saying:

... The Chairman, State Transport Authority-cum-Transport Commissioner, Orissa, is of the view that the office of the Regional Transport Authority under the re-organised Transport set up constitutes a distinct and separate office and is not any more a part of Collectorate. The Government of Orissa in the Transport Department have delegated administrative and financial powers to the R. T. Os. in letter No. 10092 T of the 16th October, 1965, to enable the R.T. Os. to function as the head of office of their respective offices. Therefore the presumption that the office of the R. T. A. can be inspected by the office Superintendent of the Koraput Collectorate on the ground that an Assistant of the Koraput Collectorate has been posted to the office of the R. T. A., Koraput, is not tenable....

From the materials placed on record, we are fully satisfied that the establishment of the Collectorate and the establishment of the Regional Transport Authority wherein the Regional Transport Officer functions are two independent establishments. Petitioner was admittedly appointed to the establishment of the Regional Transport Officer though the formal order had been passed by the Additional District Magistrate without keeping the distinction in view. We called for the original appointment file of the Petitioner so that the real situation could be known. Though three adjournments were taken, the file has not been produced and no justifying reasons have been indicated for withholding the record from the Court. In the circumstances, we think it appropriate to draw adverse inference against the stand of the opposite parties on the footing that if the record had been produced it would have supported the case of the Petitioner. As the Petitioner belongs to the establishment of the Regional Transport Office, it was not open to the Additional District Magistrate to pass an order of transfer so far as he is concerned. Again, Petitioner could not have been transferred outside the establishment to the Collectorate. The order of transfer in the circumstances is wholly unjustified. We accordingly quash it as not sustainable in law.

The writ application is allowed with costs. Hearing fee is assessed at rupees one hundred.

N.K. Das, J.

I agree.

Application allowed.