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1984 DIGILAW 404 (PAT)

Ramanugrah Sharma v. Vice Chacellor, Magadh University

1984-11-28

HARI LAL AGRAWAL, YADUNATH SHARAN SINGH

body1984
JUDGMENT Hari Lal Agrawal, J. The petitioner of each of these two writ applications was Principal in different colleges under their respective Universities and have been transferred by separate notifications on the post of Reader. Both the cases, therefore, having a common question of law, have been heard together and are accordingly disposed of herewith. 2. In these cases we are confronted with the question as to whether the transfer of the principal of a college to the post of it Reader of equivalent scale of pay, would amount to reduction in rank in the eye of law. The short facts, however, of the two cases may be briefly stated as hereunder. C.W.J. 1542/84. 3. The petitioner has filed this writ application for quashing the notification dated 28.2.1984 (Annexure 6) issued by the L. N. Mithila University, Darbhanga, in pursuance of the order of the Chancellor, transferring the petitioner from the post of Principal, V.S.J. College, Rajnagar, to R.K. Colleger, Madhubani as a Reader, relieving him from the duties of the Principal with effect from the 1st March, 1984 to join his new assignment after handing over charge to the senior most available teacher. 4. When this application was placed earlier for admission on 24.4.1984 it was dismissed with liberty to the petitioner to file representation to the appropriate Government, but the petitioner obtained an order from the Supreme Court which by its order dated 27.7.84 directed to admit this application and dispose of on merit. Accordingly it was admitted on 31.8.84 with a direction for maintaining the statue quo. C.W.J.C. 4030/83. 5. The petitioner of this writ application filed it on 5.9.1983 which was admitted on 14.9.1983 with a direction that the petitioner would not be disturbed from his present place of posting; The petitioner has prayed for quashing a similar notification issued by the Magadh University, Bodh Gaya, dated 1st September, 1983 (Annexure -1) by which he has been transferred from the post of Principal, J.L.N. College, Dehri-on-Sone, to the post of Reader in Econoimics in Gaya College, asking him to be relieved from his office from 2nd of September, 1983. A counter-affidavit has been filed in this writ case (C.W.J.C. No. 4030/83) in which the background and circumstances under which the Vice Chancellor had to pass the order of transfer have been stated. 6. A counter-affidavit has been filed in this writ case (C.W.J.C. No. 4030/83) in which the background and circumstances under which the Vice Chancellor had to pass the order of transfer have been stated. 6. For the question of law with which only we are concerned, I am not stating the various other facts which have been stated by the writ petitioners and the respondents in their affidavits. 7. Since the point is common in both the cases, the main argument was advanced by Mr. Basudeva Prasad and the learned advocate appearing in the other case practically adopted his arguments. The contention of Mr. Basudeva Prasad was that the trasfer of the petitioner from the post of Principal to that of a Reader amounted in law to his reduction in rank and, therefore, in the absence of the formalities provided under Article 311 of the Constitution of India, the order could not be sustained. The stand of the learned counsel for the University, in essence, was that the pay scale of a Reader and that of a Principal being the same, the transfer of the petitioners could not be said to be reduction in their rank as the Universities were competent to transfer them to a post of Reader which was an equivalent post. 8. A part from the well known fact's, the petitioners have relied and stated that under the Bihar State Universities Act, whereas "Principal" means the Head of the college, the "Reader" is merely a teacher of the college or university. A Principal has many statutory right, such as (1) being the ex-officio member of the senate, (2) the right to be nominated as a member of the syndicate, (3) as Head of the institution having the administrative control over the college, professors, readers, lecturers and the other teaching and non-teaching staff, (4) the, principal of a consequent college is also the ex offico member of the Academic Council of the University, (5) he has the right to Act, as Centre Superintendent of the university Examination. Besides all these he has got an additional advantage of getting Rs. 150/- per month as teaching allowance and Rs. 166/- as house allowance. With respect to C.W.J.C. 4030/83 in view of the counter-affidavit field therein where certain allegations of lack of administrative ability are made, it was contended that a departmental proceeding should have been started against the petitioner. 9. 150/- per month as teaching allowance and Rs. 166/- as house allowance. With respect to C.W.J.C. 4030/83 in view of the counter-affidavit field therein where certain allegations of lack of administrative ability are made, it was contended that a departmental proceeding should have been started against the petitioner. 9. I now proceed to examine some of tile relevant provisions of the Act, and the statute etc. According to the definition in section 2(m) of the Act, "Principal" means the head of the college and according to section 2(r) "Reader" means a teacher of the college or university. 10. Mr. Ram Balak Mahto who appeared for the respondent University in C.W.J.C. 4030/83, placed reliance upon the following provisions of the Universities Act, mamely, section 10(14); which reads as follows : **dqyifr dks fo’ofo|ky; }kjk iksf”kr fdlh foHkkx ;k egkfo|ky; ds fdlh f’k{kd dks dqykf/kifr }kjk Lohd`r ekxZ funsZ’kd fl}kUr ds vuqlkj ml fo’ofo|ky; }kjk iksf”kr fdlh vU; foHkkx ;k egkfo|ky; ds fdlh led{k in ij LFkkUrfjr djus dh ‘kfDr gksxh** He contended that in view of the definition or the expression **vU; led{k in** (any other equivalent post) in clause ¼dp½ of the definition section or the Act, which reads as follows" **vU; led{k in** ls vfHkiszr gS ,slk dksbZ vU; in ftldk osrueku leku gks vFkok tks jkT; ljdkj }kjk led{k ?kksf”kr fd;k tk;A the notifications transferring the petitioners from the post of Principal to the post of Reader was valid as it was an “equivalent post drawing the same pay scale." Long arguments were made by learned counsel for both the parties with respect to the two expressions occurring in section 10(14) and clause >¼dp½ of the definition section where the expressions used are **led{k in** and **vU; led{k in** respectively, meaning thereby that the vice Chancellor had the power to transfer university teacher only to an equivalent post under section 10(4) and not to any other equivalent posts defined under clause ¼dp½ , i.e., a Principal could be transferred only on the post of a Principal and the post other than a Principal was not an equivalent post and the post other than the Principal might be any other post called a similar post limply on account of the pay scale of the two posts being the same. Therefore, it was contended that a distinction must be made between an "equivalent post" and “any other equivalent post" which was treated as an equivalent post by fiction of law, and the word **vU;** (meaning any other) cannot be deemed to be redundant or superfluous and, therefore, if that word can have appropriate application in the circumstances conceivably within the contemplation of the statute, it should not be brushed aside (See Aswini Kumar Ghose and another v. Arabinda Bose and another.) Reliance was, however, placed by Mr. Ram Balak Mahto on the case of Himachal Pradesh Krishi Vishwa Vidyalay v. Dr. D.R. Thakur and another a Bench decision of the Himanchal Pradesh High Court, where the transfer of a Dean of the College of Agriculture to the post of the Dean of Post-Graduate Studies was held to be valid on the ground that the scale of pay and other amenities provided to the Deans of the Colleges and Dean of Post-Graduate Studies were identical, meaning thereby that the service conditions for both the posts were same. It is obvious from the observations made in the Report itself that the order of transfer was in the same grade also besides the scale of pay, and, therefore, the facts of the case relied upon by the learned counsel is not exactly apposite. Reliance was next place upon an unreported decision of this Court in C.W.J.C. No.3622 of 1982, disposed of on 5.9.83, where a University Professor and head of the Department of philosophy, Bhagalpur University, was transferred to T.N.B. College, Bhagalpur, and posted there as Principal until further orders. It was observed by the learned acting Chief Justice that the order of transfer could not be assailed as the University was competent to transfer the University Professor and Head of the Department of Philosophy to the post of Principal which was an equivalent post. That was a converse case and issues were also different and therefore, to my mind the case also has no bearing to the facts of the present case. 11. The expression "reduction in rank" has fallen for consideration times without number in different courts and it involves two elements(a) reduction relating to the classification and (b) it must be by way of penalty. 11. The expression "reduction in rank" has fallen for consideration times without number in different courts and it involves two elements(a) reduction relating to the classification and (b) it must be by way of penalty. The first ingredient, i.e., reduction in rank in the physical sense relating to the classification takes place when a Government servant is reduced to a lower post or rank or to a lower stage in the pay scale. Although where there is no reduction in pay and other service conditions such as right to pension, gratuity and the like, it does not constitute reduction in rank, but if the transfer is made from a higher post to a lower post, then notwithstanding that the other post carries the same emoluments, it certainly places the incumbent to a lower rank of the hierarchy. It is evident and cannot be disputed by any stretch of imagination that the post of the Principal of a college is the highest in the rung and the various privileges enjoyed by the person holding that post have already been enumerated earlier. It is for this reason that all lecturers, readers and professors aspire to become the Principal, which post undisputedly has an edge and gives him a place of Privilege, status and position over the other teaching post in an institution. In support or the above proposition the following case may also be usefully noticed. In Krishnaswami V. Director of Technical Education. Madras and others the expression "reduction in rank" occurring in Article 311(2) of the Constitution was considered and it was held that although two posts may carry the same scale of pay, the difference in 8tat9s and responsibility and chances of promotions from one post to higher post, were also relevant considerations in determining as to whether there was reduction in rank. 12. In view of the above discussions, I am afraid, I do not find it possible to accept the contention of Mr. Ram Balak Mahto or Mr. Tara Kant Jha who appeared for the University in the next case and similar arguments, that the post of a Reader prescribing a similar scale of ay to that of a principal, must be held to be an equivalent post in the legal sense. The notifications transferring the petitioners abovementioned, therefore, cannot be sustained and must be set a side. Tara Kant Jha who appeared for the University in the next case and similar arguments, that the post of a Reader prescribing a similar scale of ay to that of a principal, must be held to be an equivalent post in the legal sense. The notifications transferring the petitioners abovementioned, therefore, cannot be sustained and must be set a side. If the University feels that the petitioner of C.W.J.C. 4030/83 has got to be transferred from J.L.N. College, Dehri-on-some to sone other college on account of administrative reasons as indicated in the counter-affidavit, then the University will be at liberty to transfer him to any other college under its jurisdiction as Principal thereof, to which Mr. Basudeva Prasad indicated the willingness of his client. 13. In, the result, both the applications are allowed and the impugned notifications (Annexures 1 and 6 in the respective cases) are hereby quashed. In the circumstances however, I shall make no order as to costs. I agree. Application allowed.