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1995 DIGILAW 677 (PAT)

Arvind Kumar v. State of Bihar

1995-12-08

SUDHANSU JYOTI MUKHOPADHAYA

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ORDER S.J. Mukhopadhaya, J. There are fifteen petitioners who are lecturers under the Magadh University, Gaya (the 'University for short). They have challenged the Notification No. 1169/GI 'A' dated 15th November, 1991 as contained in Annexure 1, so far as it relates to the petitioners. By the impugned Annexure-1 the petitioners have been transferred on deputation to different Colleges and/or P.G. Department. It has further been mentioned therein (Annexure - 1) that the salary of the petitioners will be remitted from the Colleges where the petitioners were earlier posted. 2. The brief facts of the case are, as follows : According to the petitioners, they were functioning as Lecturers in different subjects in different Colleges which were made constituent in the 4th phase. It is stated that they were so functioning in their respective Colleges since long, against existing vacancies. There was no complaint against the petitioners, but the Respondent- Vice Chancellor of the University has suddenly come out with the impugned order, contained in Notification dated 15th November, 1995 (Annexure-1), by which the petitioners have been transferred on deputation to other Colleges/ P.G. Departments. 3. Counsel for the petitioners drawn my attention to a letter dated 29th June, 1988 (Annexure-2) issued by the Commissioner-cum-Secretary, Human Resources Development Department of the State of Bihar. By the said letter, the Registrars of different Universities, including the Magadh University were intimated that the matter relating to creation/sanction of posts and absorption of teaching and non-teaching employees against such posts were under the consideration of a high level Enquiry Committee. It was requested not to transfer the teachers of the Colleges which had been recently made constituent under different Universities. It was suggested to cancel the transfer orders, if issued, in the meantime, by the authorities. Similar letter was issued by the Respondent-State of Bihar, from its Human Resources Development Department, vide letter dated 1st September, 1990 (Annexure-3). 4. The counsel for the petitioners challenged the impugned order of transfer (Annexure-1), mainly on the ground that the Respondent- Vice Chancellor of the University had no jurisdiction to transfer the petitioners by way of deputation, deputation being not permissible under the Bihar State Universities Act, 1976 and/or under the Statute. 4. The counsel for the petitioners challenged the impugned order of transfer (Annexure-1), mainly on the ground that the Respondent- Vice Chancellor of the University had no jurisdiction to transfer the petitioners by way of deputation, deputation being not permissible under the Bihar State Universities Act, 1976 and/or under the Statute. Much stress was given on the word 'deputation' and it was submitted that though the power of transfer is vested with the Vice Chancellor of the University, he has got no jurisdiction to depute the petitioners to other Colleges/P.G. Departments. It was further submitted on behalf of the petitioners that if the petitioners have been placed on deputation, in that case, finding should be given that the petitioners retained their lien for the post and Colleges, where they were earlier appointed and had been functioning. Subsequently, an additional written submission has been filed on behalf of the petitioners. In the said additional submission, it has been mentioned that 'deputation' is unknown to the Act, and statute of the University. It has been written therein that if the petitioners are transferred from one constituent College to another constituent College, in that case, the petitioners will have no objection, if the impugned Annexure-1 is modified to that extent by deleting the word 'deputation'. It has further been stated therein that on such transfer, the authorities should pay the salary in favour of the petitioners from the Colleges, where the petitioners and others have been transferred and not from their erstwhile Colleges. According to them, in that case, earlier due salary should also be released in favour of the .petitioners. In the additional written submission, it has also been mentioned that if this Court does not upset the impugned order, in that case, liberty be given to the petitioners to make representation to the Vice Chancellor for consideration of their grievances relating to change of their place of posting. 5. Mr. Ram Balak Mahto, Senior Advocate along with Mr. Shivendra Kishore appeared on behalf of the Respondents University and their authorities. It was submitted by the counsel that the deputation is also transfer in the eye of law. According to the counsel, the word 'deputation' has been used because of certain purposes. 5. Mr. Ram Balak Mahto, Senior Advocate along with Mr. Shivendra Kishore appeared on behalf of the Respondents University and their authorities. It was submitted by the counsel that the deputation is also transfer in the eye of law. According to the counsel, the word 'deputation' has been used because of certain purposes. It was brought to my notice that the appointment of the petitioners were made in different Colleges, which were made constituent under the Respondents University There was no definite decision that was taken for taking the services of the petitioners under the University on regular basis, after the Colleges became constituent. In this background, certain Lecturers of such constituent Colleges, including some of the petitioners moved before this Court by filing writ petition (C.W.J.C. No. 4021/95). In the said writ petition, interim relief was sought for to direct the Respondents not to terminate the services of petitioners of the said writ petition (C.W.J.C. No. 4021/95). A Bench of this Court passed order of status quo in the said writ petition, which is still continuing. It was contended on behalf of the University that as in the administrative exigency, in the academic interest of the Government, the petitioners and others were to be transferred, taking into note that the right of petitioners, which they accrued against the posts, were they were initially appointed in the respective Colleges, may not be disturbed, so while transferring the petitioners, the word 'deputation' has been included so that the right and status of petitioners against their posts, where they initially appointed, continue to remain, inspite of the transfer. It was further submitted on behalf of the University that the Respondent-Vice Chancellor' has jurisdiction to transfer its teachers, from one place to another place in terms with sub-section (14) of section 10 of Bihar State Universities Act, 1976. 6. According to me, the use of a word in a particular order of transfer, is to be tested, and a meaning is to be given on the basis of the provisions laid down under the statutory Rule/Law. There is no definition of 'transfer' and/or 'deputation' has been laid down under the Bihar State Universities Act, 1976. The definition, as given in the Dictionary meaning, directly does not cover the aspect relating to condition of service. There is no definition of 'transfer' and/or 'deputation' has been laid down under the Bihar State Universities Act, 1976. The definition, as given in the Dictionary meaning, directly does not cover the aspect relating to condition of service. On the other band, such definition of transfer has been laid down in some other statutory Rules of other authorities. I have the occasion to go through the definition of 'transfer', as laid down under the Bihar Service Code, according to which (Rule-51), the 'transfer' means movement of a Government servant from one Head-quarter Station in which he is employed to another such Station, to take up the duties of a new post or in consequence of a change of his Headquarter. No separate definition of 'deputation' has been laid down even therein, except in the Note below of the said Rule-51 of Bihar Service Code, it has been mentioned that 'deputation' to a course of training of three months or less is not to be regarded as a 'transfer'. 7. From the aforesaid discussions, it is evident and clear that the word 'transfer' also includes 'deputation'. If such meaning is not given then some of the statutory provisions of the University employees cannot be given effect. For example, under Clause(7) of Chapter-1 of the relevant University's Statute deals with 'lien'. Therein, it has been laid down that if a person is holding a permanent post on substantive appointment, he acquires a lien and on deputation, his lien continued against such post. No separate Rule and/or Section has been laid down under the Statute and/or Act, relating to deputation. If the provision for transfer is not made applicable with respect to deputation, then where is the question of deputing a person to another and/or retention of lien, as laid down under said Clause (7) of Chapter-I of Statute Thereby, I hold that the word 'transfer' includes the word 'deputation' also. 8. As it is admitted position that under sub-section (14) of section 10 of Bihar State Universities Act, 1976, the Vice Chancellor can transfer a teacher/lecturer from one college to another College and/or Department, I hold that the said Vice Chancellor has also got jurisdiction to depute such Lecturer in one or other College/Department. The only thing is to be seen that on such transfer/deputation, a person is to be posted against an equivalent post. The only thing is to be seen that on such transfer/deputation, a person is to be posted against an equivalent post. Apart from the same, proper explanation has been given by the counsel for the University as to in which circumstances, while transferring the .petitioners, the word 'deputation' has been used. Thereby, I find no illegality in the impugned Notification dated 15th November, 1995 (Annexure-1). 9. So far as the prayer of the petitioners to give a declaration in their favour that they retain their lien against the posts in which they were initially appointed is concerned, according to me, there is no necessity of giving such declaration at this stage. No pleading has been made by tile petitioners that they were appointed on substantive basis against a permanent post. Such being the position, it is not possible at this stage to give a finding as to whether the petitioners hold lien against the posts, against which they were initially appointed. However, it has been mentioned by the counsel for the University that to retain the rights of the petitioners, over the post against which they were initially appointed, the word 'deputation' has been used in the impugned Notification (Annexure-1). Such statement given by the counsel for the University is enough to safeguard the rights/interests of petitioners against the posts/Colleges where they were initially appointed. 10. So far as the alternative submission that has been made on behalf of the petitioners to move before the vice Chancellor for change of place of posting is concerned, this is for the petitioners to decide their course. However, it is expected that if the petitioners file such representation, before the Respondent- Vice Chancellor of the University he may consider the same sympathetically. So far as arrears of salary of the petitioners is concerned, such matter is not directly involved in the present case. The petitioners may move with respect to the same before the appropriate' authority/Vice Chancellor. 11. Accordingly, I do not find any merit in the writ petition, which is dismissed with the aforementioned observations. Application dismissed.