ARUNA SURESH, J. W.P. (C) NO.18644 OF 2011 (Decided on 26.07.2011) KAURAB CHANDRA PRADHAN ……..Petitioner. .Vrs. STATE OF ORISSA & ORS. ……Opp.Parties. ORISSA ADMINISTRATIVE TRIBUNAL ACT,1985 (ACT NO.13 OF 1985 ) – S.15. For Petitioner - Mr. R.C.Behera. For Opp.Parties - Mr. S.N.Mohapatra, Standing Counsel for School & Mass Education Department. ARUNA SURESH, J. ( Oral ) Petitioner was appointed as Swechhasevi Sikshya Sahayak in Boitasarei Primary School under Pallahara Block in the district of Angul on 12.8.2001. After joining the services, he continued as such for a period of 8 years His services were regularized and was appointed as Regular Primary School Teacher by Chief Executive Officer, Zilla Parisad, Angul on 9.4.2008. However, he was directed to continue as Assistant Teacher in Injidi Primary School as per order dated 28.6.2008 issued by the District Inspector of Schools, Palalhara. He continued to work as Assistant Teacher in Injidi Primary School and after completion of more than 10 years of service, his deputation was cancelled and he was transferred to his original place of posting i.e. Boitasarei Primary School vide order dated 28.6.2011 (Annexure-4). Aggrieved by his transfer order, petitioner has preferred this appeal. Mr. S.N. Mohapatra, learned Standing Counsel for School and Mass Education Department has disputed the jurisdiction of this Court to entertain this writ petition alleging that Section 15 of the Administrative Tribunal Act,1985 (Hereinafter referred to as ‘the Act’) expressly deals with the jurisdiction, powers and authority of State Administrative Tribunals and according to the said Section, State Administrative Tribunal has all the jurisdiction, powers and authority in relation to recruitment and matters concerning recruitment to any civil services of the State or to any civil post under the State or, to all service matters concerning a person appointed to any civil service of the State or, any civil post under the State. He has submitted that petitioner being a regular primary School teacher under Zilla Parishad is holding a civil post and, therefore, the only forum available to the petitioner to challenge the transfer order is before the Orissa Administrative Tribunal. Mr. R.C. Behera, learned counsel for the petitioner has urged that petitioner had initially filed an Original Application before the Administrative Tribunal, Cuttack Bench being O.A. NO.2159 (C ) of 2011. However the said OA was withdrawn by the petitioner in view of the preliminary objection raised by Mr. Tripathy, learned Standing Counsel for the Government relating to the maintainability of the OA. Therefore, the petitioner was left with no option but to file this writ. He has placed on record the certified copy of the order dated 6.7.2011 wherein the objection to the jurisdiction of the Tribunal made by learned Standing Counsel of the State has been recorded. To appreciate the submissions made by learned Standing Counsel for the State, provisions of Section 15 of the Act need consideration. It reads as below:- “15. Jurisdiction, powers and authority of State Administrative Tribunals.-(1) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court[***] in relation to- (a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State; (b) all service matters concerning a person [not being a person referred to in clause (c) of this sub-section or a member, person or civilian referred to in clause (b) of sub-section (1) of section 14] appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation [or society] owned or controlled by the State Government; (c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation [or society] or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment. (2) The State Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) of local or other authorities and corporations [or societies] controlled or owned by the State Government: Provided that if the Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates 2 may be so specified under this sub –section in respect of different classes of, or different categories under any class of, local or other authorities or corporations [or societies]. (3) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all Courts (except the Supreme Court [***]) in relation to- (a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation [or society]; and (b) all service matters concerning a person [other than a person referred to in clause (b) of sub-section (1) of this section or a member, person or civilian referred to in clause (b) of sub-section (1) of section 14] appointed to any service or post in connection with the affairs of such local or other authority or corporation [or society] and pertaining to the service of such person in connection with such affairs. (4) For the removal of doubts, it is hereby declared that the jurisdiction powers and authority of the Administrative Tribunal for a State shall not extend to, or be exercisable in relation to, any matter in relation to which the jurisdiction, powers and authority of the Central Administrative Tribunal extends or is exercisable.” Thus, it is clear that every matter relating to the recruitment or all service matters concerning a person appointed to any civil service to the State, all service matters pertaining to service of such person in connection with the affairs of the State, concerning a person whose services have been placed by any such local or other authority controlled or owned by the State Government, at the disposal of the State Government for such appointment falls within the powers, authority and jurisdiction of the State Administrative Tribunal. Similarly, the administrative Tribunal has the jurisdiction concerning recruitment to any service or post in connection with the aforesaid such local or other authority or corporation or society and all service matter concerning a person, so appointed. Section 15 of the Act was interpreted by this Court in W.P. (C ) No.3388 of 2010 (Hrusikesh Sethi & Others Vs. State of Orissa and others) and 3752 of 2010(Rajeeba Kumar Dutta Vs. State of Orissa and others).It was observed :- 3 “A person holding a post under a State is a person serving or employed under the State. The relationship of master and servant exists between the State and the person holding a post under it. The existence of this relationship is indicated by the State’s right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control, the manner and method of his doing the work and the payment of wages or remuneration, as the case may be. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether such a relation between the State and the alleged holder of a post exists or not”. ”A conjoint reading of Articles 309, 310 and 311 gives an impression that post under the State denotes an office. A person who holds a civil post under a State holds an office during the pleasure of the Government except as expressly provided by Article 310 of the Constitution. In other words, a post under the State is an office or a position to which duties in connection with the affairs of the State are attached. Article 310(2) contemplates that a post may be abolished and a person holding such post may be required to vacate the post.” Method of determination as to whether a person holding a post under the Government is a civil servant or is a member of the civil service is the existence of relationship of master and servant between the State and the person holding such post. Existence of such relationship depends on the right of the State to select and appoint the holder of the post or its right to sustain or dismiss him, its right to control the manner and method of his doing the work and the payment of his wages and remuneration. The relationship of master and servant is established by the presence of all or some of the factors as above in conjunction with other circumstances. Section 3 (q) of the Act defines service matters in relation to a person i.e. service conditions. It includes remuneration (including allowances), pension, promotion, retirement benefits, tenure including confirmation seniority, promotion, reversion, pre- mature retirement and superannuation, leave of any kind, disciplinary matters or any other matter related to the service whatsoever. Now, it is to be seen whether a regular junior teacher working under Zilla Parisad is a civil servant or is holding a civil post within the meaning of Section 15 of the Act. Learned Standing counsel for the respondent has brought to my notice Resolution no.II-SME/B-33-09-17566/SME., Dt.9.11.2009 of the Government of Orissa, School & Mass Education Department. This resolution was passed in pursuance of Article 243 of the Constitution of India as inserted by the Constitution by the 73rd Amendment Act of 1992, whereby powers were conferred on the State to hand over the elementary education to the control of Zilla Parisad and other Panchayati Raj institutions. Since thereafter, Zilla Parisad is empowered to engage Sikshya Sahayaks, appoint Junior Teachers and regular Primary School Teachers. By virtue of this 4 Resolution, the scale of pay and other allowances of the regular Primary School Teachers appointed by the Zilla Parishad are at par with the Primary School Teachers (Level-V) under School & Mass Education Department. Such regular Primary School Teachers have to remain on probation for one year. They are entitled to pensionary benefits as admissible to the State Government servants under the new re-structured defined contribution Scheme as per the amended provisions of Orissa Civil Services Rule 1992 with effect from 1.1.2005. Besides, Regular Primary School Teachers are also entitled to house rent allowance and leave as admissible to Primary School Teachers under Mass Education Department. Their age of superannuation has also been fixed at ‘58’ years. As per Clause –1 of this Resolution, the services of a Regular Teacher are governed by the provisions contained in Orissa Service Code, the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962 and the Orissa Reservation of Vacancies in posts and services (for SC & ST ) Act, 1975 and Rules 1976 and such other rules and instructions issued by Government from time to time. This resolution was concurred by the Finance Department and was enforced with immediate effect. Coming back to the facts & circumstances of the case admittedly that petitioner, who was working as Junior Teacher was appointed as regular Primary School Teacher under Zilla Parishad w.e.f. 09.04.2008. His appointment was made pending finalization of the service condition with the pay scale applicable to Level-V of the Elementary Cadre Trained Teachers. Petitioner is being paid emoluments by the State Government. He is entitled to pensionary benefits, house rent allowance, leave etc. as per the State Government Service Code and Rules regulating the services of a Civil Servant who is holding a civil post. Since petitioner and his service conditions are governed and regulated by the provisions contained in the Orissa Service Code, the Orissa Civil Service (Classification, Control & Rules) and his services are under the direct control and supervision of Zilla Parishad which a State body, he is a civil servant and is holding a civil posts under the State. A relationship of master and servant exists between Zillla Parishad and the petitioner. Therefore, all his service matters, including his transfer can be challenged by him only before the Orissa Administrative Tribunal. Since, the petitioner is holding a civil post under Zilla Parishad and existing Government establishment. Hence, the writ petition is not maintainable. It seems that Mr. Tripathy, learned Standing Counsel for the State inadvertently omitted to mention the aforesaid resolution dated 9.11.2009 when he objected to the maintainability of the OA filed by the petitioner before the Orissa Administrative Tribunal, Cuttack Bench. In view of my discussion as above, writ petition is hereby rejected for want of jurisdiction. However, to avoid further harassment, delay and inconvenience to the 5 petitioner, he is given liberty to file an appropriate application for revival of his Original Application on or before 9.8.2011 before the Orissa Administrative Tribunal, Cuttack Bench. On receipt of the application, the Tribunal would consider the same in the light of this order and proceed to dispose of the same on merits. Registry is directed to communicate the certified copy of the order to the Registrar, Orissa Administrative Tribunal, Cuttack Bench forthwith so as to avoid any further delay. Free attested copy of this order be provided to the Standing Counsel for School and Mass Education Department under signature of the Court Master. Writ petition dismissed. 6