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1992 DIGILAW 226 (PAT)

Ram Ashis Ram v. Rejendra Agriculture University

1992-07-15

S.B.SINHA

body1992
JUDGMENT S.B. Sinha, J. - This writ application is directed against the orders dated 1.12.1990 (Annexure-I); the order dated 22.2.1991 (Annexure-2) and order dated 27.2.1991 as contained in Anncxure-3 to the writ application whereby and whereunder the petitioner was transferred by the respondent No.1 from the Head Quarter to the Office of the Chief Scientist, Regional Research Centre, Madhopur, West Champaran and consequently relieving him from his post. The question which arises for consideration in this application is as to whether a person working as an Assistant in the Head quarters of the respondent No. 1-University which constitutes a separate cadre can be transferred to a Muffasil Unit as a clerk which constitutes another cadre. 2. The basic facts of the matter which are not disputed are - The petitioner was appointed as a Clerk in the Office of the Regional Director, Agriculture Research Institute, Patna on 23.10.1973. The respondent University in its meeting held on 26.8.1986 created posts in the scale of Rs. 785-1210 in the Muffasil Unit of the University but the same was not approved by the State Government. 3. The Board of Management however, in its meeting held on 21.11.1987 and 23.11.1987 decided that the clerks who were getting the scale of Rs. 730-1080 may only be absorbed in the University Head Quarter Cadre in the scale of Rs. 745-1210 as Assistants on the basis of the inter-se seniority keeping in view the reservation quota. The Board of Management, therefore, resolved that the clerks of the constituent Units in the scale of Rs. 730-1080 be absorbed as Assistants in the University Head quarter in the scale of pay of Rs. 785-1210. 4. According to the petitioner the University created a separate and distinct cadre of University Head quarter Assistants in the scale of Rs.785-1210 5. The petitioner has contended that pursuant to the aforementioned resolution he was absorbed as an Assistant in the scale of Rs. 78-1210 by an order dated 28.1.1988 against the reservation quota (Annexure-4) in which post the petitioner joined and consequently by an order dated 5.5.1988 his pay was fixed in the scale of Rs. 785-1210. 6. The petitioner has contended that pursuant to the aforementioned resolution he was absorbed as an Assistant in the scale of Rs. 78-1210 by an order dated 28.1.1988 against the reservation quota (Annexure-4) in which post the petitioner joined and consequently by an order dated 5.5.1988 his pay was fixed in the scale of Rs. 785-1210. 6. The petitioner has further contended that a writ petition was filed being CWJC No. 792 of 1988 wherein the University in its counter affidavit stated that the Assistant of the Head quarters (785-1210) constitutes a separate and distinct cadre and no post of the said cadre is available in the constituent Units. 7. The petitioner further contends that in the said counter-affidavit, the University has also admitted that the nature and scope of the functions and duties of the University Head Quarter Assistants is much different and superior to the clerks working in the constituent Units. 8. The petitioner has further contended that some adverse remarks were made as against the petitioner in respect whereof he filed a representation which is still pending consideration and allegedly on that ground, the impugned orders as contained in Annexures-1, 2 and 3 have been passed. 9. The respondent-University in its counter affidavit inter alia stated as under:- "That the statements as mentioned in paragraph nos. 3 to 15 of the writ application are matters of record, however, it is needful to be clarified that the creation of separate cadre and absorbing of person in that cadre does not deprive the university from exercising its right to transfer its employees from one place to another without causing any loss to the person either in respect of emoluments or status. It may be further clarified that the university has unified the pay scales of clerks-cum-typist in the Constituent University at par that of the Assistants of the Head-quarters and hence there is no question of any difference of duties and responsibility between them. That the statements as mentioned in paragraph 21 & 22 of the writ application being matters of record requires no comments, however by way of clarification it need be mentioned that the scale of pay of clerks working in the constituent Unit has been up-graded to that of the Assistant of the Headquarters and hence the status of Headquarters Assistant can in no manner be said to be a superior post. Besides in the case of the petitioner neither his designation as Assistant nor his emoluments has been changed. Thus, the contention of the petitioner is wholly misconceived. That with regard to the statements as mentioned in paragraph 24 of the writ application, it is stated that the post of Assistant is only available in Headquarters and its attached Office only, whereas in other Constituent Unit, the post of clerk is available. However, the pay scale is the same, i.e. Rs. 785-1210/-. Nevertheless it has no relevance so far the question of transfer of the petitioner is concerned as the petitioner shall be drawing the same scale of Assistant on his new place of assignment." 10. From the statements made hereinbefore, it is clear that the respondent University has not denied that there existed separate cadre and merely contended that the scale of pay of Assistants in the Moffassil units have been upgraded. 11. The petitioner in his reply has, inter alia, contended that there was no administrative exigency for his transfer and in any event the petitioner cannot be posted in unit where there is no post of Assistants. The petitioner in support of his statement, has annexed documents showing sanctioned strength of the University which is contained in Annexure-12 to the said reply. 12. The petitioner has further contended that the Chief Scientist by an office order dated 17.5.91 has clearly ordained that the petitioner shall not be entitled to Rs. 501 P.M. as secretariat allowance. It has further been contended that the petitioner is being paid his salary at the minimum of the scale i.e. Rs. 1500/-. The petitioner has annexed two documents in support of his contentions which are contained in Annexures 13 and 14 of the reply. On these grounds, it has been contended that the order of transfer appears to be penal in nature. The petitioner has further contended that in any event, as the cadre of Assistants of the Head quarters having been created by the Board of Management; the Vice Chancellor has no jurisdiction to make any alteration in relation thereto. The petitioner has filed a supplementary affidavit on 3.10.1991 wherein he brought on records the subsequent events namely a resolution of November, 1987 (Annexure-17) wherein it has been decided that those Assistants working in Muffassil would be given an upgraded scale and will be placed under the Head quarter cadre. The petitioner has filed a supplementary affidavit on 3.10.1991 wherein he brought on records the subsequent events namely a resolution of November, 1987 (Annexure-17) wherein it has been decided that those Assistants working in Muffassil would be given an upgraded scale and will be placed under the Head quarter cadre. The petitioner has contended that Annexure-A to the Counter affidavit is contrary to the aforementioned resolution of the Board of Directors. 13. It has further been contended that when the action of the Vice Chancellor was placed before the Board of Management in its meeting on 14.9.91, the Board has not agreed thereto and has taken a contrary decision. In the said resolution, it was resolved that the State Government be approached for implementing the earlier resolution of the Board of Directors. 14. The respondent, however in a reply to the supplementary affidavit filed on behalf of the petitioner has stated that the resolution dated 14.9.91 of the Board of Management is a mere proposal and the same has not been given effect to. It has further been contended that the question of payment of secretariat allowance of Rs. 50/- to the petitioner is under consideration. 15. The respondents further in the said reply to the rejoinder filed on behalf of the petitioner have contended that the Vice Chancellor has exercised his jurisdiction under the Universities Statute. It was further stated that the last pay certificate of the petitioner was held up for want of no dues certificate but the same is being issued so that the petitioner may set all the emoluments except the secretariat allowance. 16. It was further stated that the petitioner is entitled to Muffasil allowance and thus no financial loss shall be caused to the petitioner. 17. In the said rejoinder, it has been contended- "The modification of the office order no. 150 dated 17.3.1991 made vide office order no. 159 dated 20.9.91 was with a view that the inter se seniority of the clerks of units already absorbed against the post of Assistants in the University head-quarters should be maintained in the University head-quarters. However, they were liable to be transferred anywhere within the jurisdiction or the University. This modification being quite reasonable and just and fair to the clerks of the units who had been absorbed in the cadre as assistants of the university head quarters. However, they were liable to be transferred anywhere within the jurisdiction or the University. This modification being quite reasonable and just and fair to the clerks of the units who had been absorbed in the cadre as assistants of the university head quarters. At the same time the said modification in no way adversely affect the pay scale or the seniority of the petitioner and has got nothing to do with the transfer of the petitioner. The university has not modified the cadre of Assistants in the University head-quarters as approved by the Board of Management and hence contention made by the petitioner is wholly baseless." 18. The University has further contended.- "The upgradation of pay scale of clerks of units does not mean merger of the cadres of clerks of the units nor that of the assistants of the university. Hence neither go to affect the seniority of the Assistants of the university head quarters including the petitioner or their promotional avenues in any manner. In such circumstances the question of arranging the particular section under the umbrella of cadre and making them sit on the head of the persons already in the cadre or equalising them for their purpose, does not arise at all". 19. From what has been noticed hereinbefore, there cannot be any doubt whatsoever that the petitioner being an Assistant posted at the head quarters was absolutely in a different cadre inasmuch as, the cadre of the Muffasil units is different. There cannot further be any doubt that in law a person cannot be transferred from one cadre to another cadre without his consent. Such a tran8fer is possible only if there exists any rule in that regard governing the conditions of services of the employee. No such rule governing the service conditions of the employees of the respondent University, has been placed before me. It may be, as has been contended on behalf of the respondents, that by reason of the order of transfer the petitioner would not suffer any financial loss but that by itself is not sufficient to clothe the authorities of the respondent University to pass an order in violation of law. 20. It may be, as has been contended on behalf of the respondents, that by reason of the order of transfer the petitioner would not suffer any financial loss but that by itself is not sufficient to clothe the authorities of the respondent University to pass an order in violation of law. 20. From a bare perusal of the statements made by the University itself in its counter affidavit as also in its reply to the rejoinder of the petitioner, as quoted hereinbefore, it is evident that the University has taken steps for upgradation in the scale of pay of the clerks posted in the Mufassil Units. No merger of two cadres has yet taken place. Whenever two cadres are to be merged the same has to be done in accordance with law and a combined gradation list has also to be prepared therefor and unless the same is done, the Respondent University has no authority or jurisdiction to transfer an employee from one cadre to another without his consent. 21. This aspect of the matter has been considered recently by me in Ganesh Chandra Jha vs. Steel Authority of India Limited reported in 1992 (1) PLJR 165 , wherein it has been held that although transfer is an incidence of service; however, it is well known that by reason of such transfer, a person cannot be transferred from one cadre to another cadre without his consent unless there exists provisions therefor. 22. In that case, this court had taken into consideration various decisions of this court as well as the Supreme Court and other High Courts. It is, therefore, clear that except by promotion an employee cannot be transferred outside his cadre without his consent. 23. This writ application was, thus, to be allowed on this ground alone. 24. In the result, this application is allowed, the impugned order as contained in Annexures 1, 2, and 3 are quashed. 25. However, in the facts and circumstances of the case, there will be no order as to costs.