Administrative transfer orders lack jurisdiction if taken in absence of requisite quorum: Odisha High Court
In matter to stemming from administrative transfer orders, any transfer order pertaining to the State education authorities when taken in the absence of a quorum in a materialized meeting would be deemed to be without jurisdiction. The Odisha High Court bench was faced with malfeasant transfer orders in the case Surya Narayan Mishra V State of Odisha [W.P.(C) NO. 12584 OF 2019]. The bench comprising of B.R. Sarangi J. took the aforesaid approach in the light of the  Odisha Primary Education Programme Authority (hereafter ‘OPEPA’) rules for the transfer of employees. The single-judge bench scrutinized the jurisdiction of administrative transfer orders in light of ‘administrative exigencies’. The factual matrix which has given rise is that the petitioner therein was engaged as Financial Consultant in the DPO on contractual basis vide office order dated 17.08.2004 with remuneration of Rs.6,000/- per month. While he was so continuing, he was disengaged and again re-engaged vide office order dated 10.11.2005 at DPO, Ganjam, While working as such, again he was re-engaged at DPO, SS, Kendrapara vide office order dated 12.05.2008 and continuing as such till the impugned order of transfer was passed by the authority on 17.07.2019, by which he has been transferred from DPO, SS, Kendrapara to DPO, SS Bolangir. Essentially, the writ petition have been filed by the contractual employee working under the OPEPA in different capacities seeking to quash the orders of transfer issued against them. The opposition party has maintained its ground that any contravention of transfer orders shall be punishable according to OPEPA Service Rules and Regulations, 1996. The issue of transfer and posting has been considered time and again by the apex Court and law has been settled by a catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. It does not affect the conditions of service in any manner The court opined that merely writing the words “administrative exigencies” cannot create a field for the transfer of contractual employees for whom no service rules and guidelines have been framed. As such, the guidelines, which have been relied upon in the present case, cannot be construed to be a guideline as the same have been framed with lack of quorum. Thereby, the impugned orders of transfer so passed by the authority concerned are without jurisdiction. The court turned to the decision in Hari Prasad Mulshanker Trivedi v. V.B. Raju, [AIR 1973 SC 2602], the Apex Court held that the word “jurisdiction” is an expression which is used in a variety of senses and takes its colour from its context. Whereas the pure theory of jurisdiction would reduce jurisdictional control, to a vanishing point, the adoption of a narrower meaning might result in a more useful legal concept even though the formal structure of law may lose something of its logical symmetry
ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 12584 OF 2019 W.P.(C) NO. 24671 OF 2020 In the matter of applications under Articles 226 and 227 of the Constitution of India. W.P.(C) No. 125819 Surya Narayan Mishra … Petitioner Versus Versus State of Odisha and others ….. Opp. Parties W.P.(C) No. 246720 Rajashree Pattnaik … Petitioner State of Odisha and others ….. Opp. Parties For Petitioners M s. A.K. Pandey P.K. Samal and D.N. Mishra Advocates in both the cases) For Opp. Parties : Mr. A. Pradhan Addl. Standing Counsel O.Ps. No.1 3 and 4 in both the cases) Mr. Pradipta Kumar Mohanty Senior Advocate along with M s. P. Mohanty P.K. Nayak and P.K. Pasayat Advocates O.P. No.2 in both the cases] 2 P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing:12.04.2021 :: Date of Judgment: 20.04.2021 DR. B.R. SARANGI J. Surya Narayan Mishra while working as Financial Consultant in the District Project OfficeSS Kendrapara on contractual basis with a consolidated remuneration of Rs.6 000 per month has filed W.P.(C) No.12584 of 2019 seeking to quash the order dated 17.07.2019 under Annexure 2 by which he has been transferred to DPO SS Bolangir on administrative Whereas Rajashree Pattanaik who was working as Coordinator Pedagogy in the DPO SS Khordha on contractual basis and has been transferred to DPO SS Rayagada on administrative ground vide office order dated 17.07.2019 under Annexure 1 has filed W.P.(C) 24671 of 2020 challenging the order dated 23.09.2020 under Annexure 5 by which opposite party no.2 has directed the petitioner to obey the office order 3 dated 17.07.2019 and to join at DPO SS Rayagada as per OSEPA office order no. 5036 dated 17.07.2019 positively failing which action shall be taken against her as per the Service Rules & Regulations 1996. Essentially both the writ petitions have been filed by the contractual employees working under the Odisha Primary Education Programme Authority OPEPA) in different capacities seeking to quash the orders of transfer issued against them. Therefore they have been heard together and are being disposed of by this common judgment which will govern in both the The factual matrix which has given rise to filing of W.P.(C) No. 125819 is that the petitioner therein was engaged as Financial Consultant in the DPO SSA DPEP Malkangiri on contractual basis vide office order dated 17.08.2004 with remuneration of Rs.6 000 per month. While he was so continuing he was disengaged and again re engaged vide office order The factual matrix which led to filing of 4 dated 10.11.2005 at DPO Ganjam While working as such again he was re engaged at DPO SS Kendrapara vide office order dated 12.05.2008 and continuing as such till the impugned order of transfer was passed by the authority on 17.07.2019 by which he has been transferred from DPO SS Kendrapara to DPO SS W.P.(C) No. 24671 of 2020 is that the petitioner therein was initially engaged as Coordinator Pedagogy in the DPO Sambalpur on contractual basis. Thereafter she was transferred to DPC Office Angul on 17.06.2010 and subsequently she was placed at DPC Office Keonjhar on 10.08.2010. Again the authority deployed her in the Head Office of OPEPA and after cancellation of deputation period the petitioner was again posted at DPC Office Keonjhar. Then she was posted at DPC Office Khurda vide office order dated 23.08.2016 and while so continuing she has been transferred vide office order dated 17.07.2019 to DPO SS Rayagada on 5 administrative ground as Financial Consultant. Against the order of transfer dated 17.07.2019 under Annexure 1 she filed W.P.(C) No. 12585 of 2019 wherein as an interim measure this Court stayed operation of the said transfer order. Despite that opposite party no.2 vide office order dated 23.09.2020 compelled her to carry on the order of transfer dated 17.07.2019 by joining at DPO SS Rayagada failing which action shall be taken against her as per OPEPA Service Rules and Regulations 1996. appearing for the petitioners in both the writ petitions contended that to regulate the service conditions of the employees of the OPEPA under Clause 5(n) of the Memorandum of Association of the Orissa Primary Education Programme Authority read with Rule 36 of the Rules and Regulations made thereunder “The Orissa Primary Education Programme Authority Service Regulations 1996” were framed. It is contended that in the said OPEPA Service Rules & Regulations 1996 there Mr. A.K. Pandey 6 is no provision for transfer of OPEPA employees from one place to other nor has any transfer policy been framed by the OPEPA till 2018. But for the first time on 17.12.2018 guidelines transfer of contractual employees working at State Project Office District Offices and Block Level Offices under RTE SSA Odisha were framed which also do not contemplate for transfer or deployment of employees working under SPO DPO & Block Level Offices under SSA. It is further contended that taking into consideration the merger of OPEPA with RMSA to form one society namely “Odisha School Education Programme Authroity” Government was pleased to accord permission for formulation of the inter district intra district transfer deployment and rationalization of employees working at SPO DPOs and Block Level Offices under RTE SSA. It is further contended that so far as the to contractual employees concerned it is not permissible by the said guidelines and more so the said guidelines cannot be given effect 7 to as the same have been formulated by a committee having lack of quorum. Therefore he seeks for quashing of the impugned orders of transfer passed by the authority concerned. Mr. P.K. Mohanty learned Senior Counsel appearing along with Mr. P. Mohanty learned counsel for opposite party no.2 vehemently contended that Rule 24 of the OPEPA Service Rules and Regulations 1996 which deals with travelling allowance clearly envisages that the employees in case of their transfer from the State Project Office to any DPO or from one DPO to another DPO shall be entitled to travelling allowance daily allowance and transfer T.A.. Thereby the posts held by the petitioners are transferable and as such they are entitled to travelling allowances as per Rule 24 read with Appendix B of the said Rules. It is further contended that Rule 12 under Chapter V deals with “Cadre” which indicates that directly engaged employees in the State Project Office shall be in a common cadre. The staff in all the district offices shall form a separate 8 cadre. Thereby the petitioners having been engaged in district offices they form a separate cadre and as such they are liable for transfer. Consequentially impugned orders of transfer have been given effect to and thereby no illegality or irregularity has been committed by transferring such employees. It is contended that when the transfer has been made on administrative ground as has been indicated in the impugned orders even though the petitioners are contractual employees for smooth administration if the order of transfer has been effected thereby no illegality or irregularity has been committed by the authority concerned. It is further contended by referring to Rule 24 that transfer is applicable to contractual employees from the State Project office to District Project office and also from one District Project office to another District Project office. The petitioners having been engaged in a project on contractual basis are not holding any civil post and therefore the services of contractual employees are coterminous with the implementation of the project. It is further contended 9 that as per Section 45 of the OPEPA Memorandum of Association the Executive Committee of OPEPA headed by the Chief Secretary as the Chairman and the Secretary of S & ME Department as Vice chairman and State Project Director as the Member Secretary are the competent authorities who have the power to frame and amend the regulations pertaining to service matter of including creation of post qualification selection procedure and emoluments disciplinary controls as well as classification control and appeal rules. Accordingly the transfer policy of contractual employees working under OPEPA OSEPA has been framed as per the approval of the Chairman EC OPEPA in the 36th Executive Committee OPEPA and in such guideline dated 17.12.2018 the provision for transfer of contractual employees is there. Thereby pursuant to such guideline if the orders of transfer have been passed the same cannot be said to be illegal or subjected to judicial scrutiny in the writ jurisdiction of this Court. Thereby it is contended that both the writ 10 petitions should be dismissed on the grounds mentioned above. To substantiate his contention he has relied upon the judgment of this Court in Prasanna Kumar Acharya v. State of Orissa 2015OLR 819. Mr. A. Pradhan learned Addl. Standing Counsel appearing for the State opposite parties contended that since it is a dispute between the petitioners and opposite party no.2 the State has no role to play and as such the State did not choose to file any counter affidavit. This Court heard Mr. A.K. Pandey learned counsel appearing for the petitioners in both the writ petitions Mr. P.K. Mohanty learned Senior Counsel appearing along with Mr. P. Mohanty learned counsel for opposite party no.2 and Mr. A. Pradhan learned Addl. Standing Counsel appearing for the State opposite parties through virtual mode. Pleadings have been exchanged between the parties with the consent of 11 learned counsel for the parties this writ petition is being disposed of finally at the stage of admission. It is admitted that both petitioners had been engaged as contractual employees under the OPEPA OSEPA and from the date of their engagement they have been discharging their duty. Even in some places they had been disengaged and re engaged and in some places with the closure of the project they had been directed to discharge their duty in new places. But by means of these two writ petitions they seek to quash the orders of their transfer. So far as transfer in general is concerned the issue of transfer and posting has been considered time and again by the apex Court and law has been settled by catena of decisions. It is entirely upon the competent authority to decide when where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. It does not affect the 12 conditions of service in any manner. The employee does not have any vested right to be posted at a particular place. These principles have been decided in B. Varadha Rao v. State of Karnataka AIR 1986 SC 1955 :4 SCC 131 Shilpi Bose v. State of Bihar AIR 1991 SC 532 :SCC 659 Union of India v. N.P. Thomas AIR 1993 SC 1605 Union of India v. S.L. Abbas AIR 1993 SC 2444 and the latest judgment in Somesh Tiwari v. Union of India AIR 2009 SC 1399 :2 SCC 592. So far as scope of judicial review of transfer under Article 226 of the Constitution of India is concerned it has been settled by the apex Court in Rajendra Roy v. Union of India AIR 1993 SC 1236 National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan AIR 2001 SC 3309 and State Bank of India v. Anjan Sanyal AIR 2001 SC 1748. 13 follows: under: In Sarvesh Kumar Awasthi v. U.P. Jal Nigam 11 SCC 740 the apex Court held as “In our view transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who the business of has nothing to do with Taking into consideration the law laid down by the apex Court as discussed above the legal proposition of the issue of transfer can be summarized as It is does not adversely affect the status or 1) Transfer is a condition of service. emoluments or seniority of the employee. 3) The employee has no vested right to get a posting at a particular place or can choose to serve at a particular place for a particular tenure. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are 5) Transfer order should be passed in public interest or administrative exigency and not arbitrarily or for extraneous consideration or for 14 victimization of the employee nor it should be passed under political pressure. 6) There is a very little scope of judicial review by the Court Tribunal against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or mala fides is established. In case of mala fides the employee has to make specific averments and should prove the same by adducing implacable evidence. 8) The person against whom allegation of mala fide is alleged is to be impleaded as a party by 9) Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Departmental personnel. 10) The Court does not have a power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee his family members and children as consideration of these issues fall within the exclusive domain of the 11) If the transfer order is made in mid academic session of the children of the employee the Court Tribunal cannot is for the employer to consider such a personal grievance.” There is no dispute with regard to legal proposition as discussed above. Such principles have to be considered on the touchstone of the reasonableness. Now coming to the facts of the case at hand it is admitted case of the both the petitioners that they are employees of the opposite party no.2 and working under the OPEPA and their service conditions have been 15 regulated by OPEPA Service Rules and Regulations 1996. So far as transfer is concerned there is no such provision available under the OPEPA Service Rules and Regulations 1996. Rule 12 deals with cadre which means the directly engaged employees in the State Project office shall be in a common cadre. The staff in all the district offices shall form a separate cadre. The seniority in each group and category in a cadre shall be fixed according to their date of joining. As such on perusal of OPEPA Service Rules 1996 there is no provision prescribed for “transfer”. Mr. P.K. Mohanty learned Senior Counsel appearing for opposite party no.2 placed reliance on Rule 24 of OPEPA Service Rules & Regulations 1996 which deals with Travelling Allowance reads as under: “(i) The employees of the Authority shall be entitled travelling allowance daily allowance and transfer. T.A. in case of their transfer from the State Project Office to any D.P.O. or from one D.P.O. to another at the rates as incorporated in the Appendix B. ii) The class to which an officer shall be entitled for any journey shall be prescribed in Appendix B. 16 iii) Travelling allowance and daily allowance payable to non official member attending meetings of any body or committee under authority shall be as per rate prescribed in Appendix B. iv) State meetings Workshops convened by the authority shall draw their T.A. & D.A. from the Authority or from the Department they work as decided by State Government. The rate in such cases shall decided by State Government. The rate in such cases shall be the rate applicable to them under the State Government. In a particular case if no specific rule is there in this regulation the relevant rules of State government shall apply mutatis mutandis.” On perusal of sub ruleof Rule 24 it is made clear that the employees of the Authority shall be entitled to travelling allowance daily allowance and transfer T.A. in case of their transfer from the State Project Office to any DPO or from one DPO to another at the rates as incorporated in the Appendix B. The employees as mentioned in sub rule of Rule 24 there was no specific definition of “the employee” available under the Rules save and except Rule 3(f) of OPEPA Service Rules and Regulations 1996 which deals with officers and staff of the OPEPA reads as under: 17 “3. DEFINITIONS: include consultant Officers and Staff means whole time employees of the Authority appointed by the Executive Committee or by any officer or authority delegated with power by the Executive Committee to do so and would also fellows research staff and officers and staff working under the Authority on deputation from the State Central Government. It also includes State Government Officers authorized to work as coordinators either on payment of salary or any fixed amount of On a close reading of the definition prescribed in Rule 3(f) of OPEPA Service Rules and Regulations 1996 it appears that it does not include the officer and staff engaged on contractual basis. Thereby neither Rule 24 nor the definition prescribed under Rule 3(f) deals with “contractual employee” working under the OPEPA and OPESA. Under Rule 24(i) reference has been made to Appendix B which deals with travelling allowance. Clause 2 of Appendix B reads as under: “2. Classification of officers for the purpose of tour in connection with affairs of the Authority. a) The officers of the authority including those Governments shall be classified into following 18 grades on the basis of the basic pay or class to which they belong as mentioned below: i) First Grade All officers in receipt of basic pay of Rs.2500 and above. ii) Second Grade Officers getting pay above Rs.1300 but below Rs.2500 p.m. iii) Third Grade All employees appointed on lump sum contract and classified as group C in the service regulation. iv) Fourth Grade All employees classified in the group appointed on lump sum contract. The grade of the reemployed officer shall be on basis of the pay last drawn before deduction of the pension. The retired officers appointed on contract on lump sum amount of pay shall be classified on the basis of the basic contract amount excluding allowances of compensatory nature. The State Government officers working Ex officio shall be classed into grade on basis of the pay they draw in their post under the state If such classification of the officers for the purpose of tour as envisaged under clause 2 of the Appendix B is taken into consideration it also does not speak about “the employee engaged on contractual basis” rather sub clausesandof clausestates about all employees appointed on lump sum contract. That by itself cannot construe that the employees who have been engaged on contractual basis. Clause 3 of Appendix B deals with entitlement of class of 19 accommodation for travel. Therefore if a close scrutiny would be made to the provisions contained in Rule 3(f) read with clause 24(i) and Appendix B nowhere it has been specified with regard to transfer of contractual employee engaged under OPEPA and OSEPA. The travelling allowance which is admissible under Rule 24(i) is only applicable to the employees indicated in definition 3(f) and as such the same does not include the “contractual employees” engaged under OPEPA and OSEPA. Thereby OPEPA Service Rules and Regulations 1996 being silent about the transfer and implementation thereof any transfer of contractual employees if made is in violation of such rules and the same cannot sustain in the eye of law. Mr. P.K. Mohanty learned Senior Counsel appearing for opposite party no.2 relied upon the judgment of this Court in Prasanna Kumar Acharya mentioned supra. The said judgment was decided on the principle of transfer as already discussed and while deciding the said case this Court also took similar view 20 holding that the opposite party being the employer has got every prerogative to transfer its employees. But fact remains such transfer cannot be done arbitrarily unreasonably and contrary to the rules governing the field. Emphasis has been laid that due to administrative exigencies the petitioners have been transferred by the opposite party no.2 but nothing has been placed on Therefore merely writing the words “administrative exigencies” cannot create a transfer of contractual employees for whom no service rules and guidelines have been framed. As such the guidelines which have been relied upon in the present case cannot be construed to be a guidelines as the same have been framed with lack of quorum. Thereby the impugned orders of transfer so passed by the authority concerned are without jurisdiction. It is not disputed that OPEPA authority is a society registered under the Societies Registration Act 1860. As per clauseof Memorandum of Association 21 is an “Authority” whose affairs shall be administered subject to the rules regulations and orders of the Authority by an executive committee which will be constituted as per clause 21 of such Memorandum of Association which reads as under: “ 21. Executive Committee. Chairman Ex Officio) the Authority shall be The affairs of administered subject the Rule and Regulations and orders of the Authority by an Executive Committee which shall consist of the i) Secretary to Government School & Mass Orissa Bhubanjeswar. ii) Secretary Department Government of Orissa. iii) Secretary to Government Department of Panchayati Raj Government of Orissa. iv) Director Elementary Education v) Director of Mass Education Department of School & Mass Education Government of to Government Finance Member Member Member Member vi) Director of T.E. and S.C.E.R.T. Orissa vii) Director Women & Child Development Government of Orissa ` 22 Members Member viii) Director Tribal Welfare & Director Harijan Welfare Government of Orissa ix) Two District Project Coordinators from amongst selected districts by rotation to be nominated by the Chairman. Members x) Two Heads of District Committees from amongst selected Districts by rotation to be nominated by the Chairman. Members the Central xi) Three representatives of Government Department Education Ministry of Human Resource Development Govt. of India. xii) Two Directors of State level Academic and Technical Resource Support Agencies. xiii) Two Educationists known experience and interests in basic education sector one each to be nominated by the State Government and Central Government. xiv) One serving teacher known for his her meritorious service to the cadre of Basic Education to represent teacher’s organization concerned with basic education to be nominated by the State Government. xv) Two women with experience and interest in women’s Development and Education one each to be nominated by the Central and State xvi) Two persons from Voluntary Agencies who have distinguished themselves for their work in the area of Mass Education one each to be nominated by the Central and State Members 23 xvii) Principal Regional Institute of Education xv) State Project Director O.P.E.P Member Member Secretary” Clause 28 which deals with quorum at the meeting reads as under: “Quorum at the Meeting: One third of the members of the Executive Committee present and in person shall constitute a quorum at any meeting of the Executive Committee provided that no quorum shall be necessary in respect of an adjourned On perusal of clause 28 it is made clear that one third of the members of the Executive Committee present and in person shall constitute a quorum at any meeting of the Executive Committee provided that no quorum shall be necessary in respect of an adjourned meeting. Clause 21 of the Memorandum of Association which deals with Executive Committee stipulates the Executive Committee shall comprise of 30 members as detailed in sub clauseto thereof. That means in order to constitute a quorum of the Executive Committee one third of the members of the 24 said Executive Committee which comes to ten are to remain present in person. Thereby the decision taken by an Executive Committee will only be valid and implemented said Executive Committee constitutes a quorum. In Than Singh v. State of Madhya Pradesh AIR 2005 MP 170 while considering Section 6(2) of M.P. Panchayat Avam Gram Swaraj Adhiniyam the Full Bench of Madhya Pradesh High Court dealt with the question of “quorum” and in paragraphs 36 to 40 observed as follows: “36. In Halsbury s Laws of England Third Edition Volume 6 while dealing with the factum of regulation and management of companies quorum has been described as under : 630. A quorum. A quorum means the minimum number of directors who are authorised to act as a board and 25 where a transaction is really one transaction the necessary quorum cannot be obtained by dividing the transaction into two any one of you the aforesaid A B C D etc. we will shall be one) our justices to inquire the truth more fully" whence the justices so named were usually called justices of the quorum. The term was afterwards applied to all justices and subsequently by transference to the number of members of a body necessary for the transaction of 26 is competent to transact 38. In Corpus Juris Secundum Volume LXXIV quorum has been described as under : Quorum : The word "quorum" now in common use is from the Latin and has come to signify such a number of the officers or members of anybody as is competent by law or constitution to transact business such a number of an assembly as business such a number of the members of any body as is when duly assembled legally competent to transact business such a number of a body as is competent to transact business in the absence of the other member. The quorum of a body is an absolute majority of it unless the authority by which the body was created fixes it at a different number. The idea of a quorum is that when that required number of persons goes into a session as a body the votes of a majority thereof are sufficient for binding action. Thus the word quorum" implies a meeting and the action must be group action not merely action of a particular number of members as individuals." 39. In the case of the Punjab University Chandigarh v. Vijay Singh Lamba AIR 1976 SC 1441 the Apex Court has ruled thus : Quorum" denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful. The fixation of quorum for the meetings of a committee does not preclude attending the meetings. By the quorum a minimum number of members of the committee must be present in order that its proceedings may be lawful but that does not mean that the minimum are denied an opportunity to participate in the deliberations the members of the committee 27 and the decisions of the committee. Whenever a committee is scheduled to meet due notice of the meeting has to go to all the members of the committee and it is left to each individual member whether or not to attend a particular meeting. Every member has thus the choice and the opportunity to attend every meeting of the committee. If any member considers the matter which is to be discussed or determined in a particular meeting as of such importance that he must make his voice heard and cast his vote it is open to him and indeed he is entitled to attend the meeting and make his presence Thus the basic and fundamental principle inhered in the term quorum is presence of minimum number of members to transact business with the avowed purpose to make it 40. In the instant case the quorum has been differently prescribed. The effect and import of such enjoining has to be scrutinised in the backdrop of democracy albeit at the grassroot level. By introduction of such a provision the control from the majority slowly but steadily in a different manner travels to the very small and thin body. The democracy is built on the idea of the majority. All have a right to parameters of to conceive of a situation that to empower certain weaker section they would be allowed to have control in entirety the democracy at the grassroot level would itself be an anathema to the basic requirement of democracy. To have an idea that the protection of weaker sections should percolate to the minuscule level in a minutest manner cannot but smack of unreasonableness and irrationality. It can be well imagined if in one of the three categories as provided under permissible within law. But 28 the provisions Section 6(2) is absent the meeting of Gram Sabha cannot be held. We have been apprised at the Bar that provision has become workable but it can never be the test in a case of this nature. In the case at hand we are testing the provision keeping in view the democratic polity rationality of the non arbitrariness of it and when tested on the bedrock of the same we are of the opinion the second part of the provision cannot stand the test of the Article 14 of the Constitution. The percolation to that extent if we say so is not in a beyond tolerance. The learned counsel for the State submitted that unless they are allowed to control Gram Sabha would be controlled by a different kind of majority and the entire Panchayat system would collapse. As has been stated above number the basic substratum of a quorum but a significant and pregnant one the Legislature has further proceeded to provide how the quorum would be formed or to put it differently who would constitute the quorum. It is interesting to note that no alternative is provided what would happen in the absence of a quorum. The words used therein cast a mandate. Submission of the learned counsel for the State is that in a democratic polity there has to be participation of the weaker sections of the society moreso India where Scheduled in a country Castes Scheduled Tribes and women who have suffered for centuries. The aforesaid submission has its own significance and import and that has been met with by the Parliament while making provisions for reservation. Once the seats are reserved there can be no trace of doubt that the affirmative steps have been taken for progress and upliftment of the weaker sections of the society. The litmus test that is to be applied to the provision is whether a further controlling tool in the hands of a 29 particular number of a particular caste or tribe as well as woman is affirmative or necessary. An argument has been advanced that unless such a provision is engrafted into the marrows of the Statute the aforesaid three categories would not come to the meetings and the democracy at the grassroot level would remain a myth. The aforesaid argument at a first flush may sound attractive but on a deeper probe greater scrutiny subtle analysis and pregnant penetration would make it a submission which has to face the founder but cannot form the Much reliance has been placed on the office order dated 17.12.2018 which shows about the guidelines of transfer of contractual employees working at State Project Office District Project Offices and Block Level Offices under RTE SSA Odisha. The very opening paragraph of the said office order reads as under: “Presently there is no transfer deployment policy for the employees working at SPO DPO Block level under SSA. A large number of representations for transfer received from different categories of contractual employees working at SPO DPO and Block Level are pending and cannot be disposed of in absence of a clear cut guideline in this regard. In the 36th meeting of Executive Committee of OPEPA held on 21.03.2018 this issue was discussed at length and decision was taken at item no. 11(2) to formulate a Transfer Deployment Policy for the contractual employees under SSA.” 30 On perusal of the above mentioned paragraph it is made that no transfer deployment policy employees working at SPO DPO Block Level under SSA and a large number of representations for transfer from different categories of employees” working at SPO DPO and Block Level are pending and cannot be disposed of in absence of a clear cut guidelines in that regard. In the proceedings of the 36th meeting of the Executive Committee of the OPEPA held on 21.03.2018 the above issue was discussed at length and the same was taken in clause no.11.2 to formulate transfer deployment policy of the OPEPA employee. The proceedings of 36th Executive Committee of the OPEPA held on 21.03.2018 has been placed on record as Annexure 4 to W.P.(C) No. 24671 of 2020. Clause 11.2 which deals with transfer policy of OPEPA employees reads as under: of OPEPA As per OPEPA Service Rules & Regulations 1996 Rule 13 the directly engaged employees 31 in the State Project Office shall be in a common cadre. The staff in all the district offices shall form a separate cadre. The seniority in each group and category in a cadre shall be fixed according to their date of joining. It is felt that so many representations recommendations have been received from different corners regarding transfer of district block employees personal Health Spouse Grounds etc. This matter was discussed and decided to frame a transfer policy of State Dist Block level staff by a committee to be formed at State Level under the Chairmanship of SPD OPEPA which will be placed before Govt. in S & ME Deptt. for approval.” The guidelines for transfer of contractual employees have been framed vide office order dated 17.12.2018 under Annexure 3 to W.P.(C) No.12584 of 2019. If the very same opening paragraph as mentioned above would be read with clause 11.2 of the 36th meeting of Executive Committee held on 21.03.2018 it would be evident that nowhere it has said about the transfer policy of the contractual employees under SSA. Clause 11.2 of the proceedings of 36th Executive Committee of the OPEPA held on 21.03.2018 also does not speak about transfer policy of the contractual 32 employees working under the OPEPA. Thereby no reliance can be placed on such clause of the proceedings of 36th Executive Committee of the OPEPA held on 21.03.2018 so far as transfer of the contractual employees is concerned. Apart from the above the 36th Executive Committee meeting of the OPEPA held on 21.03.2018 does not satisfy the requirement of forming a quorum as required under clause 28 of the Memorandum of Association. Further the list of members present in the 36th Executive Committee meeting held on 21.03.2018 which has been placed as Annexure A at page 57 of W.P.(C) No.24671 of 2020 shows about presence of ten members. If a close scrutiny would be made it would be apparent that the Labour Commissioner of Odisha Director Panchayatiraj & Drinking Water Odisha and Dr. B.B. Acharya Technical Consultant Labour and ESI Department are not the members as enumerated under clause 21 of the Memorandum of Association. Otherwise also out of 30 members if ten are not present in the 33 Executive Meeting the same lacks quorum. Thereby any decision taken in an Executive Meeting which lacks quorum cannot be said to be a valid decision so that the same can be given effect to. Consequentially the reliance placed on the proceedings of 36th Executive Committee meeting of the OPEPA held on 21.03.2018 having lacked the quorum the decision so taken as per clause 11.2 of the said meeting to formulate transfer deployment policy for the employees is hardly of any assistance to opposite party no.2. Thereby it can be safely stated that in absence of any guidelines for transfer of contractual employees of the OPEPA the impugned orders of transfer cannot sustain in the eye of law. If the issue involved herein is considered from other angle in absence of any provision contained in OPEPA Service Rules and Regulations 1996 for transfer of contractual employees read with so called issued on 17.12.2018 as well as the proceedings of the 36th Executive Committee meeting of the OPEPA held on 21.03.2018 which lacked quorum 34 the impugned orders of transfer passed by the authority concerned is without jurisdiction. Butterworths Words and Phrases Legally Defined Vol.3 at page 113 states succinctly “by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its In Smt. Ujjam Bai v. State of U.P. AIR 1962 SC 1621 the apex Court held that “jurisdiction” is the power to hear and determine it does not depend upon the regularity of the exercise of that power or upon correctness of the decision pronounced for the power to decide necessarily carries with it the power to decide wrongly as well as rightly. In Official Trustee West Bengal v. Sachindranath Chaterjee AIR 1969 SC 823 the apex Court held that “jurisdiction” means the legal authority to administer justice according to the means which the 35 law has provided and subject to the limitations imposed by that law upon the judicial authority. In Raja Soap Factory v. S.P. Shantharaj AIR 1965 SC 1449 the apex Court held that “Jurisdiction” is meant the extent of the power which is conferred upon the Court by its Constitution to try a proceeding. In Hari Prasad Mulshanker Trivedi v. V.B. Raju AIR 1973 SC 2602 the apex Court held that the word “jurisdiction” is an expression which is used in a variety of senses and takes its colour from its context. Whereas the „pure‟ theory of jurisdiction would reduce jurisdictional control to a vanishing point the adoption of a narrower meaning might result in a more useful legal concept even though the formal structure of law may lose something of its logical symmetry. In A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531 the apex Court held that jurisdiction is the 36 authority or power of the Court to deal with a matter and make an order carrying binding force in the facts. In Harpal Singh v. State of Punjab 2007) 13 SCC 387 the apex Court held “jurisdiction” means the authority or power to entertain hear and decide a case and to do justice in the case and determine the controversy. In absence of jurisdiction the Court has no power to hear and decide the matter and the order passed by it would be a nullity. Taking into consideration the above meaning of the jurisdiction and applying the same to the present context it is made clear that in absence of any provision contained in OPEPA Service Rules and Regulations 1996 read with the guidelines dated 17.12.2018 and the decision taken in 36th Meeting of the Executive Committee of OPEPA held on 21.03.2018 with regard to formulation of transfer deployment policy as per clause 11.2 thereof the impugned orders passed by the authority transferring the petitioners who are 37 contractual employees are without jurisdiction. Thereby the order of transfer dated 17.07.2019 under Annexure 2 to W.P.(C) No.12584 of 2019 and that of dated 17.07.2019 under Annexure 1 to W.P.(C) No. 24671 of 2020 as well as letter dated 23.09.2020 and order dated 21.09.2020 under Annexures 5 and 6 to the W.P.(C) No.24671 of 2020 cannot sustain in the eye of law and are liable to be quashed and hereby quashed. As opposite party no.2 is the employer keeping in view the settled proposition of law as discussed above it is left open to the said authority to suitable policy guidelines transfer of contractual employees of OPEPA OSEPA by following due procedure as provided under law. In the result the writ petitions are allowed. However there shall be no order as to costs. JUDGE Orissa High Court Cuttack The 20th April 2021 Ashok Ajaya GDS …... …. .. DR. B.R.SARANGI 