ORDER
1. Heard counsel for the parties.
In this petition under Article 226 of the Constitution of India, the petitioner has sought for quashing of the order under Annexure-6 whereby he was transferred (from the Finance Division of the Orissa Small Industries Corporation Limitted at Cuttack (hereinafter referred to as the OSIC’) to the office of the Orissa Timber and Engineering Works, Sunabeda. His further prayer is for directing opp. party No. 1 to maintain his inter se seniority vis-a-vis opp. party Nos. 3, 4 and 5.
2. The facts involved in this case are simple. In response to the advertisement issued by opp. party No. 1,–the OSIC, the petitioner alongwith many others applied for the post of Assistant Manager (Finance). His application being in order, vide memo dated 23-4-1981 (Annexure-2) issued by the Managing Director of the OSIC, the petitioner was called for an interview on 16-5-1981. He was interviewed alongwith many others and was placed at serial No. 6 in the panel. Thereafter, the order dated 18th of August. 1981 (Arinexure-3) was issued appointing him as an Assistant Manager (Finance) of the Rehabilitation Industries at Sunabeda with a starting salary of Rs. 525/-as per the advertisement. Since his appointment in 1981, he is continuing in the post of Assistant Manager (Finance) till today.
3. On 23-2-1984 vide Annexure-5, the petitioner was transferred to the Head Office at Cuttack as ah Assistant Manager (Finance) and continued to work there as such till 17-10-1989 on which day vide Annexure-6 he was transferred back to Orissa Timber and Engineering Works, Sunabeda. This order is one of the subject-matter of this writ application.
4. The other grievance of the petitioner is that there has been discrimination in the matter of his promotion to the higher post vis-a-vis opp. party Nos. 3, 4 and 5. It is his case that though he and opp. party Nos. 3, 4 and 5 had applied for the same post in response to common advertisement and had appeared at the same interview and were selected, yet the benefits of higher salary and promotion which have been granted to opp. party Nos.3, 4 and 5 are not being granted to him. It is submitted that these anomalies came to his notice during his posting at the Head Office of the OSIC. On coming to know about the same, the petitioner, so he asserts, submitted representations to the Managing Director for promotion, financial benefits and other reliefs and the same not having been considered, he has approached this Court for relief. It may, however, be mentioned at this stage that though the above allegations are contained in the body of the petition, specific prayer has not been made in these terms.
5. In response to the notice, the opposite parties have entered appearance and filed a counter denying the relief claimed by the petitioner. The case of the opposite parties, inter alia, is that the petitioner was not appointed in the OSIC but was appointed in the Rehabilitation Industries, Sunabeda and for the said reason, his claim for promotion, as was done in the case of opp. parties 3, 4 and 5 could not be considered because opp. party Nos. 3, 4 and 5 were employed in the OSIC while the petitioner was offered employment in the Rehabilitation Industries, Sunabeda. The further case of opp. party Nos. 3, 4 and 5 is that the petitioner was posted in the Head Office of the OSIC in terms of his appointment order wherein it was specifically mentioned that he would be posted within or outside the State of Orissa in connection with his duties. As regards Annexure-6, it is stated that as the petitioner’s service was no longer required in the Head Office, he was transferred back to his parent office at Sunabeda which has been latter re-named as Orissa Timber and Engineering Works.
6. Having heard counsel for the parties and in view of the peculiar facts and circumstances of the case, we are of the considered opinion that the contentions raised by the petitioner regarding non-consideration of his claim for promotion as has been done in the case of opp. parties 3, 4 and 5, has to be upheld.
7. Though the learned counsel for the opposite parties has stated that the OSIC and the Rehabilitation Industries which is now re-named as the Orissa Timber and Engineering Works, are two different entities having different cadres, there is no material on record except the appointment order to substantiate the plea. On our repeated query, Mr. Dora for opp. parties 3, 4 and 5 has not been able to place before us any material to show that there are two separate cadres of Assistant Manager (Finance). Except a bald statement in the counter, there is no material to substantiate the averment. Under the circumstances, we are not inclined to agree with Mr. Dora that there are two separate cadres of Assistant Manager (Finance)–one for the Head Office and the other for the Unit. This apart, the record indicates that the advertisement for the post of Assistant Manager (Finance) issued by the OSIC does not indicate that Assistant Managers (Finance) were to be recruited independently for different Units. Annexure-2. the momo sent to the petitioner requiring him to appear at an interview on 16-5-1981 was issued by the OSIC and was signed by an officer on behalf of the Managing Director thereof. No doubt, in that order it has been mentioned that the petitioner has been appointed in the Rehabilitation Industries at Sunabeda, but there is nothing in the said appointment order to indicate that the petitioner was not appointed in the cadre of the OSIC. Rather, the transfer order issued by the OSIC is itself indicative of the fact that the petitioner is and was treated to be an employee of the OSIC. Under the circumstances, having applied for a job under the OSIC. the petitioner was justified in believing that he was being appointed to a post under it. We find nothing on record to indicate that the petitioner, either at the time of interview or, at the time of appointment was ever intimated of the fact that he was not being appointed as an employee of the OSIC but was being appointed as an employee of the Unit, a separate entity, which was then named and styled as Rehabilitation Industries. Who knows, had the petitioner been informed about the fact, he may not have joined the post under the Unit. Thus, the fact that he accepted the appointment cannot estop the petitioner from claiming a relief of being treated at par with opp. parties 3, 4 and 5 who had also applied for the same post in response to a common advertisement and had been interviewed alongwith the petitioner and whose names were in the same panel and who had been appointed as Assistant Managers (Finance) under the OSIC. In the peculiar facts and circumstances of the case, we feel that opp. party No. 1 was unjustified in not considering the case of the petitioner for promotion to the higher post as has been done in the case of opp. party Nos. 3, 4 and 5.
8. The other relief claimed by the petitioner, namely, quashing the order of his transfer, cannot be granted. Since transfer/re-transfer of an incumbent is an incidence of service, this Court does not interfere with the same except under very strong exceptional circumstances. We feel, how long and at which place an employee is to work is the concern of the employer and not this Court. We, therefore, reject the prayer of the petitioner for quashing Annexure-6 whereby he was transferred from the Head Office to Sunabeda.
9. For the reasons aforesaid, the writ application is partly allowed and we direct the OSIC to consider the case of the petitioner for promotion to the higher post as has been done in the case of opp. party Nos. 3, 4 and 5. We are sure that his case will be considered expeditiously. As it is pointed out that the petitioner is at serial No. 6 in the panel, his name will be considered alongwith the persons then in the list immediately above him at the time of promotion of opp. parties 3, 4 and 5.
There shall be no order as to costs.