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2002 Supreme(Ori) 321
2002 (II) OLR — 546
R. K. PATRA AND PRADIP MOHANTY, JJ.
Padmabati Rout... Petitioner
Banalata Parhi and another... Petitioners
Versus
State of Orissa and others (in both)... Opp. Parties
WP (C) No. 1938/2002
Babita Das... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 1947/2002
Arati Baral... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2014/2002
Puspalata Sahoo... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2024/2002
Sanjukta Mallick... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2025/2002
Anusaya Mahalik... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2026/2002
Santilata Madhual... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2028/2002
Sandhyarani Dash... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2029/2002
Chapala Sahoo... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2033/2002
Kamala Sahoo... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2232/2002
Sushama Manjari Barid... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2263/2002
Jayanti Mishra... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2349/2002
Alaka Sundari Nayak... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2355/2002
Saraswati Jena... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2491/2002
Sasmita Mohanty... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2496/2002
Mamata Jena... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2564/2002
Renubala Singh... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2678/2002
Lakshmipriya Nayak... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2680/2002
Srimantini Mishra... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2730/2002
Hemalata Sahoo... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2750/2002
Pratima Das... Petitioner
Versus
Deputy Registrar, Orissa
Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2971/2002
Basanti Ghadei... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2230/2002
Minatimani Behera... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2233/2002
Gurubari Madhei... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2234/2002
Subarna Jena... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2357/2002
Hemalata Dhada... Petitioner
Versus
Orissa Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2593/2002
Chandramani Rath... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2600/2002
Satyabhama Mishra... Petitioner
Versus
Orissa Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2631/2002
Mounabati Behera... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2640/2002
Suchita Dung Dung... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2673/2002
Husna Begum... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2698/2002
Sabita Kumari Swain... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2728/2002
Sulekha Naik... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2731/2002
Sudhansubala Jena... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2766/2002
Pankajini Barik... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2900/2002
Jhunubala Dey... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 3010/2002
Ranjita Patra... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 3070/2002
Snehalata Dash... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 3447/2002
Swarnalata Behera... Petitioner
Versus
Orissa Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2264/2002
P. Dillip Kumar Patro... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2325/2002
Prabhat Kumar Dhupal... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2333/2002
Prafulla Kumar Panda
and others... Petitioners
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2334/2002
Abhimanyu Satpathy
and others... Petitioners
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2335/2002
Prafulla Kumar Palai and others... Petitioners
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2360/2002
V.V.Padma Vathi... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2566/2002
Ajaya Kumar Nanda... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2594/2002
Ajaya Kumar Moharana... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2595/2002
Sukanta Kumar Das... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2608/2002
Dhananjaya Pattnaik
and others... Petitioners
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2638/2002
Santosh Kumar Pradhan... Petitioner
Versus
State Administrative Tribunal
and others... Opp. Parties
WP (C) No. 2743/2002
Malaya Kumar Mishra... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 2744/2002
Santosh Kumar Prusty... Petitioner
Versus
State of Orissa and others... Opp. Parties
WP (C) No. 3054/2002
Judhistir Garnaik... Petitioner
Versus
State of Orissa and others... Opp. Parties
W.P. (C) Nos. 529/2002, 1826/2002, 1938/2002, 1947/2002, 2014/2002, 2024/2002, 2025/2002, 2026/2002, 2028/2002, 2029/2002, 2033/2002, 2232/2002, 2263/2002, 2349/2002, 2355/2002, 2491/2002, 2496/2002, 2564/2002, 2678/2002, 2680/2002, 2730/2002, 2750/2002, 2971/2002, 2230/2002, 2233/2002, 2234/2002, 2357/2002, 2593/2002, 2600/2002, 2631/2002, 2640/2002, 2673/2002, 2698/2002, 2728/2002, 2731/2002, 2766/2002, 2900/2002, 3010/2002, 3070/2002, 3447/2002, 2264/2002, 2325/2002, 2333/2002, 2334/2002, 2335/2002, 2360/2002, 2566/2002, 2594/2002, 2595/2002, 2608/2002, 2638/2002, 2743/2002, 2744/2002, and 3054/2002
Decided on 24th September, 2002.
For Petitioner (s):M/s. S. K. Das, R. N. Mishra-II, M/s. M. K. Mohanty,
and S. K. Mohanty
M/s. S. L. Patnaik, Md. Arif, M/s. P. K. Mohapatra and S. Nath, G. Gartia,
M/s. D. R. Pattnayak, A. K. Routray, M. P. Khuntia, N. S. Panda, S. K. Das,
M/s. A. C. Mohanty, G. N. Rout and L. Patnaik,
M/s. S. K. Sahoo, A. P. Ray, Smt. G. Sahoo, M. K. Mallick
Mr. Sanatan Nayak
M/s. P. C. Pradhan, B. N. Mishra and K. C. Satpathy
M/s. S. P. Sahoo
M/s. S. B. Jena, S. J. Nanda, S. Behera and S. S. Mohapatra
M/s. P. K. Mohanty, P. K. Khuntia and S. Singh
M/s. B. Senapati, S. K. Patnaik and S. K. Sethi
M/s. Dillip Ray and A. K. Jethy
M/s. A. K. Mishra, B. K. Panda, J. Sengupta, P. R.J. Das
and G. Sinha
M/s. S. K. Dey and
Miss N. Patnaik
M/s. J. M. Mohanty, B. Samal, N. K. Das and K. C. Mishra
Mr. G. C. Mohapatra
M/s. K. P. Mishra, J. K. Khandayatray, S. Das
M/s. B. R. Barik & S. K. Jena
M/s. N. Patra, A. K. Patra and B. N. Sarangi
M/s. D. S. Misra & D. Ray
M/s. B. P. Das and S. Mohapatra
M/s. J. K. Mishra and K. K. Das
M/s. A. K. Mohapatra and B. P. Rath
M/s. Rajib Rath and S. Nayak
M/s. D. Narendra, T. B. Jena & S. S. K. Subudhi, A. K. Mishra-2
For Opp. parties:Mr. R. N. Acharya, Addl. Government Advocate
Headnote:1. ADMINISTRATIVE TRIBUNALS ACT, 1985 — Sec. 5 (6) — Govern¬ment decision in change of cadre and transfer of persons under challenge — Member (Judicial) dismissed applications holding the Government decision as a policy matter, hence no jurisdiction to interfere — Discussing the facts and case laws held, the dispute is of such a nature that certain provisions of the Constitution may fall for consideration — Similar applications pending before Principal Bench being dealt by a Division Bench — Member (Judicial) ought not to have finally disposed of the cases at his end — Directions is¬sued. (Paras - 3 to 5)
2. JUDICIAL PROPRIETY — Similar type of cases pending in two Courts, one at Cuttack and other at Bhubaneswar — It requires that all cases should be heard by a Larger Bench — Consistency in interpretation of law would inspire public confidence in judicial system. (Para - 4)
JUDGMENT
R. K. PATRA, J. — This batch of writ petitions consists of three sets of Government employees, namely, Pharmacists, Staff Nurses and Multi Purpose Health Workers (Female). Their common case is that the posts held by them were initially State cadre posts. The State Government in September, 1998 declared them as District cadre posts. Options were called for by the Director, Health Services from them as to which district they wanted to be allotted. After the options were exercised, provisional lists for different categories of employees were published inviting objections. Without finalising it, orders were passed transfer¬ring them to different districts to which they had not opted. Being aggrieved by such orders, they filed separate applications before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack. By a common order dated 12.8.2002, the learned Member (Judicial) dismissed all the applications holding that the deci¬sion of the Government treating the posts in question as district cadre posts is a policy matter and, as such, he has no jurisdic¬tion to interfere with the same. He also recorded a finding that the entire exercise of the Government in inviting options from the concerned employees is “provisional and the same is executed for the interest of all and therefore he has no jurisdiction to interfere with the same”.
2. Learned counsel for the petitioners contended that the learned Member (Judicial) having found that the decision of the State Government declaring the posts of Pharmacists, Staff Nurses and Multi Purpose Health Workers (Female) as district cadre posts is a policy matter, he should not have disposed of the matters at his end and he ought to have referred/transferred the cases to the Chairperson for disposal by a Division Bench in view of the proviso contained in Sub-section (6) of Section 5 of the Administrative Tribunals Act, 1985 (hereinafter referred to as ‘the Act’). In this connection, they relied on the judgment of the Supreme Court in L. Chandra Kumar v. Union of India, AIR 1997 SC 1125. In paragraph 98 of the judgment their Lordships observed as follows :
“........ We wish to make it clear that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of the Single Member Bench of the Administrative Tribunal, the proviso to Section 5 (6) will automatically apply and the Chairman or the Members concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a Single Member Bench or a bench which does not consist of a Judi¬cial Member. So construed, Section 5 (6) will no longer be sus¬ceptible to charges of unconstitutionality.”
Counsel for the petitioners in support of their case also pressed into service the recent judgment of the Supreme Court in State of Madhya Pradesh v. B.R.Thakare, AIR 2002 SC 2431. Counsel for parties brought to our notice the office order No. 4551/OAT dated 3.5.1999 issued by the Chairman of Orissa Administrative Tribu¬nal, Bhubaneswar authorising two members of the Cuttack Bench to function as a Bench consisting of Single Member and to exercise jurisdiction, power or authority of the Tribunal in respect of cases or class of cases specified therein. At that time Cuttack Bench had two members and at present there is only one Member (Judicial). Another office order No. 2166/OAT dated 2.4.2002 made by the Chairperson of the Orissa Administrative Tribunal, Bhuba¬neswar was also brought to our notice. This shows that the Chair¬person in exercise of powers conferred by Sub-section (6) of Section 5 of the Act has authorised the present Member (Judicial) of Cuttack Bench to exercise all powers of two-member Bench until further orders.
3. No doubt by virtue of the aforesaid office order No. 2166/OAT dated 2.4.20
