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2011 DIGILAW 2129 (PAT)

B. N. Mandal University v. Manan Singh

2011-10-08

NAGENDRA RAI, S.K.KATRIAR

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JUDGEMENT Nagendra Rai, J. 1. In view of the averments made is the limitation petition and after hearing learned counsel for the parties, I am of the view that a good ground for condonation of delay has been made out and, accordingly, the delay in filing the appeal is condoned and the limitation petition, thus, stands allowed. 2. This appeal is directed against the order dated 9.5.2000, passed by the learned Single Judge in C.W.J.C. No. 893 of 2000 whereby he has allowed the writ petition filed by the writ petitioner-respondent Manan Singh and quashed the order dated 4.1.2000, passed by the Vice Chancellor of the B.N. Mandal University, Madhepura, Bihar, by which the writ petitioner-respondent was transferred from the post of Sectional Officer (General), D.S. College, Katihar, to H.S. College, Udakishunganj. 3. Both the Colleges, namely, D.S. College, Katihar and H.S. College, Udakishunganj, are the constituent Colleges of the aforesaid B.N. Mandal University. 4. The case of the writ petitioner-respondent is that he was originally appointed as Clerk by the private Management in D.S. College, Katihar, in 1961. He was promoted to the post of Sectional Officer in 1982 by the L.N. Mithila University. Respondent no. 4 of the writ application (respondent no. 3 herein) i.e. the Principal Incharge of D.S. College, Katihar, was annoyed with him because he did not oblige him by obeying his illegal orders and, therefore, he reported against the conduct of the writ petitioner- respondent to the authorities of the University, on the basis of which the University on 4.1.2000 aksed for a show-cause from the writ petitioner-respondent, a copy of which has been annexed as Annexure 8 to the writ petition. Before the writ petitioner- respondent could file his show cause, on the same day i.e. 4.1.2000 itself, the impugned order was issued, whereby he was transferred from D.S. College, Katihar to H.S. College, Udakishunganj on the ground that due to illegalities, irregularities and insubordination committed by him, the Principal was not in a position to run the administration of the College. He challenged the order of transfer on two grounds; firstly on the ground that the Vice Chancellor has no power under the Bihar State Universities Act, 1976 (for short,"the Act) to transfer non-teaching staff from one constituent College to another constituent College and secondly on the ground of mala fide against the Principal of the College. He challenged the order of transfer on two grounds; firstly on the ground that the Vice Chancellor has no power under the Bihar State Universities Act, 1976 (for short,"the Act) to transfer non-teaching staff from one constituent College to another constituent College and secondly on the ground of mala fide against the Principal of the College. During the course of hearing, the writ petitioner-respondent did not press the allegation regarding mala fide and he challenged the order of transfer on the other ground only as stated above. 5. The stand of the University, on the other hand, is that complaints were received against the writ petitioner-respondent with regard to indiscipline, insubordination, misconduct, misbehaviour, dereliction of duty and during inspection by a Team of the University he was found absent. Under the provisions of the Act, once a College becomes a constituent unit of the University then its employees, including non-teaching employees, become the employees of the University and the Vice Chancellor has been empowered to take all actions including disciplinary action as well as passing of the order of transfer against the empoyees for smooth functioning of the College and under such power the Vice Chancellor has passed the order of transfer of the writ petitioner-respondent. 6. Respondent no.3the Principal of the Collegealso filed a counter-affidavit and denied the allegations of mala fide and further stated that the writ petitioner-respondent was not allowing the institution to function and has mentioned several instances to show his misdeeds, insubordination, manipulation, dereliction of duty and absence at the time of inspection. 7. The learned Single Judge has held that there is no cadre of the non-teaching staff of the constituent Colleges and the transfer can be made within the cadre and not beyond the cadre. The Vice Chancellor has no jurisdiction to transfer the non-teaching staff from one constituent College to another constituent College. He has further held that the order of transfer was punitive in nature as the order itself shows that the transfer was done on the charges of misconduct, indiscipline, misbehaviour, insubordination, dereliction of duty and unauthorised absence. 8. The only point for consideration is as to whether the Vice Chancellor has power to transfer the writ petitioner-respondent from one constituent College to another constituent College of the University or not? 9. 8. The only point for consideration is as to whether the Vice Chancellor has power to transfer the writ petitioner-respondent from one constituent College to another constituent College of the University or not? 9. Learned counsel for the appellant- University submitted that once a College becomes a constituent unit of the University in terms of the provisions of the Act, the College becomes a part of the University and the Vice Chancellor being the appointing authority of the ministerial staff and other staff of the University and not of the teaching employees and officers of the College of the University, and having control and full disciplinary powers over such staff and servants, has power to transfer from one constituent College to another constituent College even though there is no formal creation of a cadre consisting of non-teaching staff of the constituent Colleges and no specific power has been vested in the Vice Chancellor to make transfer. Elaborating his submission, he submitted that the transfer is not a condition of service rather an incident of service and even if there is no specific provision under the Act or the Statute, the transfer can be effected for administrative reasons or grounds. He also referred to certain provisions of the Act, which will be referred to while discussing the aforesaid point. 10. Learned counsel for the writ petitioner-respondent, on the other hand, submitted that unless the statutory provisions provide that the post is transferable one, the transfer cannot be effected. There is no provision under the Act and Statute empowering the Vice Chancellor to transfer the non-teaching staff from one constituent College to another constituent College and in absence of any such provision, the order of transfer cannot be made with regard to the writ petitioner-respondent. 11. Now, the settled law is that the transfer is an incident of service and not a condition of service. No employee has a right to claim that he will remain posted at a particular place and for a particular period of time. It is for the employer to decide with regard to place of posting. Unless it is shown that the order of transfer has been made in contravention of any mandatory provision or is actuated by mala fide or arbitrary in the sense that no reasonable man in exercise of power will pass such an order, the court will not interfere with the. Unless it is shown that the order of transfer has been made in contravention of any mandatory provision or is actuated by mala fide or arbitrary in the sense that no reasonable man in exercise of power will pass such an order, the court will not interfere with the. order of transfer. 12. It is equally well-settled that the cadre is an unit of strength of service or part of which as declared by the employer. The cadre has to be specifically created by an instrument of the authority concerned. Section 2(i) of the Act defines Constituent College, which means a teaching institution maintained or controlled by the University. Section 4 of the Act deals with the purpose and power of the University and sub-section (14) thereof provides that the University will enter into an agreement with other bodies and persons for promoting the purposes of the Act and to assume the management of any institution under them and to take over its assets and liabilities. Section 10 of the Act deals with the power of the Vice Chancellor and sub-section (6) thereof provides that the Vice Chancellor shall subject to the provisions of the Act, the Statutes and the Ordinances have power to make appointment to posts within the sanctioned grades and scales of pay and within the sanctioned strength of the ministerial staff and other servants of the University not being teachers and officers of the University and have control and full disciplinary powers over such staff and servants. Sub-section (11) thereof provides that the Vice Chancellor shall exercise general control over the educational arrangement of University and shall be responsible for the discipline of the University. It shall be lawful for the Vice-Chancellor to take all steps which are necessary for maintaining the academic standard and administrative discipline of the University. 13. From a reading of the aforesaid provisions, it is clear that when the College becomes a constituent unit it becomes a part of the University in terms of the provisions of the Act and the Vice Chancellor being the appointing authority of the ministerial staff and other servants, excluding the teachers and officers of the University, shall have control and full disciplinary power over such employees and he can take all steps, which are necessary for maintaining the academic standard and administrative discipline of the University. 14. 14. The admitted position is that no cadre with regard to the employees of the constituent Colleges has been made by the University and as such every constituent College is a separate unit. It is also an admitted position that no rule or instruction or direction has been issued by the Vice Chancellor laying down any procedure for transfer of employees from one constituent College to another constituent College in exercise of the power vested in him in order to maintain the administrative discipline of the constituent Colleges. Even if for the time being it is assumed that as the employees of the constituent Colleges became the employees of the University, the Vice Chancellor has control and full power to take disciplinary action against such employees, then the question arises whether he can transfer them without there being a decision taken by him making the post of ministerial staff of the constituent Colleges transferable from one constituent College to another Constituent College. The Colleges prior to their being constituent ones were separate and independent units. Appointments were made for the Colleges in question. After the colleges in question having become constituent units of the University, unless the Vice Chancellor comes out with a decision that the ministerial and non- teaching posts of the constituent Colleges are transferable ones, in my view, the employees cannot be transferred from one constituent College to another constituent College or brought to the University. Once the post is made transferable one, then the employee cannot claim to remain posted on that post at his sweet will. When there is no statutory provision making the post transferable one then the employee cannot be transferred from one place to another without his consent. 15. Thus, the learned Single Judge has rightly held that the Vice Chancellor has no such power to transfer the writ petitioner-respondent from one constituent College to another constituent College. It is made clear that once the constituent College became a unit of the University, its employees became employees of the University and the Vice Chancellor can make the posts of ministerial staff transferable ones and can also make a provision with regard to the same in exercise of the power contained under sections 10(6), read with (11) of the Act. 16. 16. In view of the fact that the Vice Chancellor has no power to transfer the writ petitioner-respondent from one constituent college to another constituent college of the University, it is not necessary to go through the question as to whether the order of transfer of the writ petitioner-respondent was punitive or administrative in nature. 17. In the result, the appeal is dismissed. S.K.Katriar, J. 18 I agree.