Mahendra Thakur v. State of Bihar — 1986 DIGILAW 368 (PAT)

JUDGMENT : N.P. Singh, J. The petitioner has questioned the validity of an ORDER :passed by the Chancellor of the L.N. Mithila University transferring the petitioner from the post of the Registrar of the University to the post of Inspector of Colleges (Science) Bhagalpur University. 2. While the petitioner was holding the post of Inspector of Colleges (Science), Ranchi University, he was appointed as the Secretary. Bihar Inter University Board (hereinafter referred to as 'the Board'), by the Chancellor of the Universities of Bihar, in exercise of the powers conferred on him by section 8 (Ka) of the Bihar Inter Universities Board Second Ordinance 1981, by a notification dated 11.5.1981. On 26.4.1982, by another notification issued on the direction of the Chancellor, the petitioner was transferred from the post of Secretary of the Board to the post of Registrar, Bhagalpur University. On 26.12.1983, the petitioner was transferred from Bhagalpur to the post of Registrar, L.N. Mithila University (hereinafter referred to as 'the Mithila University, by the ORDER :of the Chancellor issued under section 8 of the Bihar State Universities Act, 1976. On 2.3.1985 the impugned notification was issued transferring the petitioner from the post of the Registrar of the Mithila University to the post of Inspector of Colleges (Science), Bhagalpur. 3. According to the petitioner, once he had been appointed as the Secretary of the Board he could not have been transferred from the said post to the post of Registrar, Bhagalpur University. In any case his transfer from the post of Registrar of the Mithila University to the post of Inspector of Colleges (Science), Bhagalpur, by the impugned ORDER :amounts to his reduction in rank because the post of the Inspector of Colleges is not an equivalent post to that of a Registrar of a University. 4. On behalf of the respondents the claim made on behalf of the petitioner has been resisted. According to them, the post of Inspector of Colleges is an equivalent post to the Registrar of a University and as such there is no illegality in the ORDER :of transfer. It was also pointed out that the petitioner was throughout holding the substantive post of Inspector of Colleges only. His appointment to the post of Secretary of the Board was on deputation. It was also pointed out that the petitioner was throughout holding the substantive post of Inspector of Colleges only. His appointment to the post of Secretary of the Board was on deputation. He was also holding the post of Registrar in Bhagalpur University as well as Mithila University only on officiating basis because he had not been appointed to the post of Registrar in accordance with the provisions of the Bihar State Universities Act, 1976 (hereinafter referred to as 'the Act). 5. Although due to lapse of time the petitioner is not entitled to challenge his transfers from the post of Secretary of the Board, which took place as early as on 26.4.1982, as the controversy in respect of nature of his appointment to the post of Secretary of that Board, has been raised in the present application, it is advisable to deal with that question first. On behalf of the petitioner it was urged that from a bare reference to the notification dated 11.5.1981 it shall appear that he had been appointed as the Secretary of the Board in exercise of a statutory power by the Chanceller and on substantive basis. As such he could not have been transferred from that post to the post of Registrar, Bhagalpur University. 6. The learned Advocate General and Mr. Tara Kant Jha, who appeared respectively for the Chancellor and the Mithila University, pointed out that in the ORDER :appointing the petitioner as the Secretary of the Board, it was specifically mentioned as follows : "The terms and conditions of the appointment will be issued later in consultation with the State Government." In the counter affidavit filed on behalf of the Board, a copy of ORDER :dated 24.3.1982, of the State Government addressed to the Secretary of the Chancellor, has been annexed giving the terms and conditions of appointment of the petitioner as the Secretary of the Board. It says that the petitioner shall be entitled to the salary' and other emoluments which, he was getting I from the Ranchi University, while holding the post of Inspector of Colleges (Science). Apart from that, the petitioner was to get Rs.250/- per month as deputation allowance. It was pointed out that the petitioner has received this, deputation allowance, during the period he acted as the Secretary of the Board. This was not challenged on behalf of the petitioner. Apart from that, the petitioner was to get Rs.250/- per month as deputation allowance. It was pointed out that the petitioner has received this, deputation allowance, during the period he acted as the Secretary of the Board. This was not challenged on behalf of the petitioner. In this background, there is no escape from conclusion that the petitioner bad been appointed as the Secretary of the Board on deputation and not on the substantive basis. As such he could have been transferred from that post either to his original post or to any other equivalent post in any of the Universities. 7. The next question which falls for consideration is as to whether the petitioner could have been transferred from the post of the Registrar of the University to the post of the Inspector of Colleges. According to the petitioner, the post of the Inspector of Colleges is not an equivalant post to the post of Registrar of a University, as such by the impugned ORDER :the petitioner could not have been transferred to Bhagalpur University as Inspector of Colleges (Science). In this connection reliance was placed on the JUDGMENT : of the Supreme Court in the case of Vice-Chancellor, L.N. Mithila University v. Dayanand Jha [AIR 1986 Supreme Court 1200 : 1986 PLJR 37 (SC)] where an ORDER :of transfer of the petitioner of that case from the post of the Principal to the post of Reader of the University was held to be invalid as the transfer bad not been made to an equivalent post. While bolding that the two posts were not equivalent, it was pointed out by the Supreme Court that the identical pay scales, of the two posts, are not the only determining factor. 8. Section 2 (v) defines "Teacher" to include "Principal, University Professor, College Professor, Reader, Lecturer, Demonstrator and other persons imparting instruction in any department, college or institute maintained by the University". Section 2 (m) defines "Principal" to mean "the head of a College". Section 2 (r) defines “Reader” to mean "a teacher of a College or the University possessing such qualifications as may be prescribed by the Statutes". Section 2 (m) defines "Principal" to mean "the head of a College". Section 2 (r) defines “Reader” to mean "a teacher of a College or the University possessing such qualifications as may be prescribed by the Statutes". Section 2 (am) defines "other equivalent post" to mean "any other post, the scale of pay of which is equivalent or as may be declared so by the State Government", Section 8 (1) vests power in Chancellor to transfer the officers of the University excluding Chancellor, Vice-Chancellor and Pro-Chancellor "to an equivalent pest in another University". Section 10(14) is as follows:- "10(14) The Vice-Chancellor shall have power to transfer any teacher of a department or a college maintained by the University to an equivalent post in another Department or college maintained by the University." Section 15(e) which is a specific provision in respect of the transfer of Registrar of the University is as follows :- "15(e) the Registrar may, on the recommendation of the Vice-Chancellor or otherwise, be transferred by the Chancellor from one University to other University on the same or any other equivalent post, or within the same University to any other equivalent post." (Emphasis added). 9. The learned Advocate General submitted that in view of section 15 (e) of the Act, the petitioner could have been transferred to any other equivalent post, which read with the definition given in section 2 (am) shall mean to a post, the scale of pay of which is equivalent or which may have been declared to be equivalent by the State Government. In other words, as the pay scales of the post of the Registrar and the Inspector of Colleges are same it shall be deemed that the petitioner bas been transferred to another equivalent post which is permissible under the provisions of the Act. It was pointed out that the Supreme Court in the aforesaid case had to interpret the expressions "any equivalent post" occurring in section 10 (14) and had no occasion to consider the scope of section 15 (e) of the Act. It appears that on behalf of the Vice-Chancellor of the Mithila University in that case it was urged that the words "any equivalent post" occurring in section 10 (14) must bear the same meaning in which the expression "other equivalent post" has been defined in section 2(am). It appears that on behalf of the Vice-Chancellor of the Mithila University in that case it was urged that the words "any equivalent post" occurring in section 10 (14) must bear the same meaning in which the expression "other equivalent post" has been defined in section 2(am). That argument was repelled saying that as in the Act "any equivalent post" and "other equivalent post" have been used in different sections, the definition of "other equivalent post" shall not be applicable to sections where expression "any equivalent post" has been used. On that finding it was held that for transfer to an equivalent post (Samkaksh Pad) the requirement to be fulfilled should not only be that the pay scale of the two posts should be identical but even the power and privilege should also be similar. It was observed that the post of Principal and Reader cannot be regarded as of equivalent status and responsibility although they carried the same scale of pay. In my opinion, the Supreme Court itself has drawn a distinction between the expression "any equivalent post" and "other equivalent post". On the basis of that JUDGMENT : it can be held that for determining whether a post can be held to be "other equivalent post", reference has to be made to the definition of that expression given in section 2 (am), (section 2 (ka, chh) of the Hindi version of the Act). It is open to the legislature to lay down the basis on which two posts can be held to be equivalent or to prescribe the conditions and the procedure by which two posts can be declared equivalent. Under section 2 (am) while defining "other equivalent post" the framers of the Act have said that either the scales of pay of the two posts should be identical or the State Government should declare the posts to be as equivalent. In my view, as, in the instant case, section 15 (e) vests power in the Chancellor to transfer a Registrar from one University to other University on the same or "any other equivalent post", the petitioner could have been transferred from the post of Registrar to the post of Inspector of Colleges; the pay scale of the two posts being identical. 10. 10. On behalf of the petitioner, however, it was urged that as the ORDER :of his transfer has been passed under section 8 of the Act, by the Chancellor where the expressions used are "any equivalent post" and not "other equivalent post", the case of the petitioner is covered by the aforesaid JUDGMENT : of the Supreme Court. It is true that after amendment, in section 8 (1) the expression "any equivalent post" has been introduced. As such if the impugned ORDER :could have been passed only under section 8 (1), then the ratio of the JUDGMENT : of the Supreme Court aforesaid shall be fully applicable to the case of the petitioner. In that event the respondents have not only to show that the pay scales of the two posts are identical but they have also to satisfy that the status, responsibility and duties attached to the two posts are similar. On behalf of the respondents it was pointed out that, although the ORDER :is purported to have been issued under section 8 of the Act, but mentioning of the section is irrelevant once the source of the power can be traced to section 15 (e). In that connection it was submitted that section 15 (e) is a specific provision in respect of the transfer of a Registrar by the Chancellor from one University to another which shall not be eclipsed by the general power of the Chancellor to transfer any officer of the University. In this connection reference was made to the case of J.K. Steel Ltd. v. Union of India (AIR 1970 Supreme Court 1173) where it was pointed out as follows :- "If the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of the power in question. This is a well-settled proposition of law. In this connection reference may usefully be made to the decisions of this Court in P. Balakotaiah v. The Union of India, 1958 SCR 1052 : ( AIR 1958 SC 232 ) and Afzal Ullah v. State of U.P. 1964-4 SCR 991 : ( AIR 1964 SC 264 )." Again in the case of N.B. Sanjana v. E.S. & W. Mills (AIR 1971 Supreme Court 2039) the same view was reiterated. In my view, the contention is well founded. In my view, the contention is well founded. There being a specific provision under section 15 (e) of the Act, vesting power in the Chancellor to transfer a Registrar on the recommendation of the Vice-Chancellor or otherwise from one University to another University either on the same or any other equivalent post, the ORDER :shall be deemed to have been passed by the Chancellor under that provision although in the notification issued from the Governor Secretariat, section 8 of the Act has been mentioned. 11. The learned Counsel appearing for the petitioner, however, submitted that after amendment of section 8 (i) by the Bihar Universities (Second Amendment) Ordinance, 1981, substituting the expression “to an equivalent post” for the expression "to other equivalent post" it shall be deemed that there has been an implied repeal of section 15 (e) of the Act as well. In my opinion, it is difficult to accept this contention. If the framers of the Act wanted to exclude the words "other equivalent post" from the Act itself those words should have been deleted even from section 15 (e) and there was no sense in introducing a definition, by the same Ordinance, "of other equivalent post" by introduction of section 2 (am) (ka, chh) in the Hindi version). 12. Apart from that, it is well-known that the principle of implied repeal is applicable when both provisions cannot coexist. Reference in this connection may be made to the case of Municipal Council, Palai v. T.J. Joseph (AIR 1963 Supreme Court 1561) where it was pointed out as follows :- "It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is all equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the Intent was not to repeal existing legislation. But it is all equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the Intent was not to repeal existing legislation. Of course, this presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together." The Supreme Court in the case of Municipal Council, Palai v. T.J. Joseph (supra) has also observed :- "Of course, there is no rule of law to prevent repeal of a special (sic) by a later general statute and, therefore, where the provisions of, the special statute are wholly repugnant to the general statute, it would be possible to infer that the special statute was repealed by the general enactment. A general statute applies to all persons and localities within its jurisdiction and scope as distinguished from a special one which in its operation is confirmed to a particular locality and, therefore, where it is doubtful whether the special statute was intended to be repealed by the general statute the court should try to give effect to both the enactments as far as possible." 13. The Courts have always pointed out that whenever there is some conflict between a special Act or provision with any general piece of legislation or provision the special Act and provision will prevail over the general piece of legislation or provision with respect to the subject-matter in question. In Maxwell on Interpretation of Statutes, 11th Edition, page 169 it has been stated as follows :- "Having already given its attention to the particular subject and provided for it the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language .........or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one." Reference can be made also to the JUDGMENT : of the Supreme Court in the case of Paradip Port Trust v. Their Workmen (AIR 1977 Supreme Court 36). 14. It is true that section 8 of the Act when vests power in the Chancellor to transfer "the officers of the University" it shall also include Registrar in view of section 7 of the Act which enlists the officers of the University, including Registrar. But when framers of the Act under section 12 made a separate provision in respect of the Registrar, prescribing his duties and as to how he can be transferred by the Chancellor from one University to another University or within the same University to any other equivalent posts that shall be deemed to be a specific provision of transfer in respect of the Registrar and it shall not be deemed to have been impliedly amended with the amendment of section 8 (1) of the Act. It can be held that the framers of the Act did not like to interfere with the said provision. The result will be that a Registrar of the University can be transferred within the University itself to any other equivalent post, or to any other equivalent post in another University. In view of the definition of the words "other equivalent post" the post to which such Regular is transferred must have same scale of pay. 15. Although, in view of my finding above, it is not necessary to enter into the question as to whether the post of the Registrar has some special status, privilege attached to it which is not available to the holder of the post of Inspector of Colleges. But, in view of the fact that both parties were heard on that question, I propose to indicate the grievance made on behalf of the petitioner. On behalf of the petitioner it was pointed out that from bare reference to section 7 of the Act which mentions about the different officers of the University starting from the Chancellor, the Registrar has been shown against serial no. 5 whereas the Inspector of Colleges has been shown against serial no. 6. On behalf of the petitioner it was pointed out that from bare reference to section 7 of the Act which mentions about the different officers of the University starting from the Chancellor, the Registrar has been shown against serial no. 5 whereas the Inspector of Colleges has been shown against serial no. 6. It was submitted that the framers of the Act them selves have indicated the hierarchy of the different officers showing the inspector of Colleges below the Registrar. In this connection it was pointed out that at one stage by amendment the Inspector of Colleges was brought at par with the Registrar and they had been put against same serial number. But later by another amendment the original position was restored putting the Inspector of Colleges below the Registrar in section 7. It was submitted that the post of Inspector of Colleges is lower in rank than the Registrar. It was pointed out that the Registrar has a higher status and many privilege attached to his office including payment of allowances etc. In this connection it has been stated on affidavit that many of the bills of the Inspector of Colleges are countersigned by the Registrar of the University which was not possible if the two posts were equivalent. In my view, on the basis of the circumstances mentioned above, it is not possible to record a categorical finding that the post of Inspector of Colleges is not equivalent to the post or Registrar; of course if the view expressed by the Supreme Court in connection with the post of Principal vis-a-vis Reader was applicable even in the present case then there was no difficulty in holding that the post of the Registrar carries with it a status, power and privileges which is not available to the Inspector of Colleges. But as I have already mentioned above that the view of the Supreme Court while examining the scope of the words "any equivalent post" should not be imported while examining the scope of the words "other equivalent posts" which have been defined in the Act itself. In that view of the matter, the petitioner cannot make any grievance on that account. 16. In that view of the matter, the petitioner cannot make any grievance on that account. 16. While resisting the claim of the petitioner that he cannot be transferred from the post of the Registrar to any other post which is not in all respects equivalent, it was pointed out on behalf of the respondents that the petitioner bad never been appointed to the post of Registrar in accordance with the procedure prescribed under sections 57 and 58 of the Act. It was submitted on behalf of the respondents that when the petitioner was transferred from the post of the Secretary to the Board to the post of Registrar, Bhagalpur University, on 26.4.1982, it will be deemed that the petitioner was appointed as a Registrar on officiating basis. Section 57 of the Act prescribes that the State Public Service - Commission shall perform (he same functions "in the matter of appointment to the post of teachers and officers of the University.... ..as are entrusted to it by Article 320 of the Constitution of India in respect of State Services". In the year 1982, for some time a transitory provision had been introduced by amendment in section 57 of the Act entrusting the power of selection and recommendation in a selection committee. Subsection (2) of section 58 of the Act prescribes the procedure for recommendation for the appointment to the post of teachers and officers of the University which will include even the Registrar. In view of sub-section (3) of section 58 of the Act, appointments of the officers and teachers of the University have to be made on the basis of such recommendation of the Selection Committee/Commission. 17. On behalf of the petitioner it has not been disputed that when he was appointed as Registrar of the Bhagalpur University on 26.4.1982, the procedures prescribed under sections 57 and 58 of the Act were not followed. Perhaps, because of that the ORDER :of the Chancellor was notified on 26.4.1982 as follows :- “Dr. Mahendra Thakur, Secretary, Inter University Board, Patna to be transferred and appointed as the Registrar Bhagalpur University, Bhagalpur.” As such it cannot be held that by the aforesaid notification dated 26.4.1982 the petitioner had been appointed as the Registrar of the Bhagalpur University on substantive basis. Mahendra Thakur, Secretary, Inter University Board, Patna to be transferred and appointed as the Registrar Bhagalpur University, Bhagalpur.” As such it cannot be held that by the aforesaid notification dated 26.4.1982 the petitioner had been appointed as the Registrar of the Bhagalpur University on substantive basis. It will be deemed that he had been appointed against the post of Registrar on an officiating basis which he has continued to hold in Bhagalpur and Mithila Universities till the impugned notification dated 2.3.1985 was issued. Once the petitioner has failed to prove that he had been appointed to the post of the Registrar on substantive basis, even if the post of Registrar is held to be higher in rank than the post of the Inspector of Colleges the petitioner cannot make any grievance if he has been transferred to the post of the Inspector of Colleges which was the substantive post the petitioner was bolding throughout. 18. In the result this application fails and it is dismissed. But, in the circumstances of the case, there shall be no ORDER :as to costs. Application dismissed.