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2018 DIGILAW 357 (ORI)

Binod Kumar Jena v. State of Odisha

2018-04-04

SUJIT NARAYAN PRASAD

body2018
JUDGMENT S.N.PRASAD, J. - The writ petition is filed challenging the order of transfer dated 7.6.2017 passed by the Director of Higher Education, Odisha, Bhubaneswar whereby and whereunder the petitioner has been transferred from Surendra Nath Institute of Higher Technical Studies, Kamarda, Balasore to Shailabala Mahavidyalaya, Uitikiri, Balasore. 2. The order of transfer has been assailed on the ground of jurisdiction, placing reliance upon the Government decision whereby and whereunder the Department of Higher Education has been bifurcated by virtue of Notification dated 24th May, 2016 and after the said notification, the Department of Higher Education has been bifurcated into two directorates, namely, Directorate of Higher Education and the +2 wing of Department of Higher Education has been shifted to School & Mass Education Department under the separate directorate in the name of Directorate of Higher Secondary Education. According to the petitioner, he, after the Notification dated 24th May, 2016, has become an employee of Directorate of Higher Secondary Education since his services has been placed under the Department of School & Mass Education as because he is working in +2 College. The order of transfer since been issued on 7.6.2017 by the Director of Higher Education, he having no jurisdiction after Notification dated 24th May, 2016. Hence, the order of transfer is fit to be quashed on the ground of lack of jurisdiction having with the Director of Higher Education. This Court, after hearing the learned Counsel for the petitioner at the first instance on 22.11.2017, has passed an order directing the State to seek instruction and file counter affidavit as also issued notice to the opposite parties No.5 and 6 through registered post with A.D. Simultaneously, the order of transfer has been stayed to the effect that the petitioner has not been relieved, he shall not be relieved from his post till the next date of hearing. 3. In pursuant to the notice issued to the opposite parties, the opposite parties No.1 to 4 have filed detailed counter affidavit wherein the plea has been taken that the Notification dated 24th May, 2016 issued by the Government of Odisha through Department of Higher Education, a separate Directorate in the name of Directorate of Higher Secondary Education has been created by separating +2 and + 3 wing. The +3 wing remained in the Department of Higher Education while +2 wing has come in the Department of Higher Secondary Education i.e. under the School and Mass Education Department. The said notification has been given effect to 1st July, 2016. It has been decided by the competent authority of the State Government that all the teaching staff, including Junior and Degree lecturers presently working in Jr. Colleges shall be deemed to be on deployment to School & Mass Education Department for a period of one year initially, meaning thereby while teaching staff including Junior and Degree lecturers working in the Junior Colleges will be of the employee of the Department of Higher Education for a period of one year which has completed on 1.7.2017 and since the order of transfer has been issued on 7.6.2017 it is well within the period of one year, i.e., before 1.7.2016 and as such, the Department of Higher Education has its jurisdiction to pass an order being the cadre controlling authority. Mr.S.K. Samal, learned Standing Counsel appearing for the State-opposite parties submits that if the order of transfer would have been issued after 1.7.2017, the contention made by the petitioner can be said to be true, but that is not the factual position here. 4. Miss. B. Pattnaik, learned Counsel appearing for the petitioner in rebuttal has submitted that after issuance of Notification dated 24th May, 2016, another notification has been issued on 6th October, 2010 whereby and whereunder it would be evident that from the list of Higher Education Department, the Secondary Education has been deleted while it has been inserted in the Higher Secondary Education and as such, what the submission has been advanced by the learned Standing counsel appearing for the State-opposite parties cannot be said to be correct and as such, the order of transfer will be said to be without jurisdiction, since the order passed by the Director, Higher Education and as such, the order of transfer is to be struck down. 5. 5. Having heard the learned Counsel for the parties and after appreciation of their rival submissions, it is note here that the order of transfer is to be interfered with by the High Court sitting under Article 226 of the Constitution of India only if the order of transfer is without jurisdiction or it is in violation of the statutory rule or if the order of transfer is without jurisdiction or it is in violation of the statutory rule or if the order of transfer has been passed with malice. Petitioner’s case in this case is that he has challenged the order dated 7.6.2017 merely on the ground that the order of transfer is without jurisdiction. The contention raised by the petitioner is on the basis of the Government decision for bifurcating the Higher Education Department in two wings, i.e., earlier +2 wing and +3 wing were under the Higher Education Department, but the Government has taken a decision to handover +2 wing to the School & Mass Education Department by creating a separate directorate in the name of Directorate of Higher Secondary Education. The petitioner’s case is that he is working under +2 College and as such, earlier his appointment authority was the Director of Higher Education, but subsequent to the Notification dated 24th May, 2016, he has become the employee of the School & Mass Education Department under the Directorate of Higher Secondary Education. In view thereof, after 6th October, 2016, the appointing authority of the petitioner has become the Director of Higher Secondary Education and in the capacity of appointing authority, he has the only competent authority to transfer the petitioner from one place to another. This Court, after hearing the learned Counsel for the petitioner at the first instance, has issued notice to the opposite parties and pass an interim order to the effect that if the petitioner has not been relieved, he shall not be relieved from his post till the next date of hearing. This Court, after hearing the learned Counsel for the petitioner at the first instance, has issued notice to the opposite parties and pass an interim order to the effect that if the petitioner has not been relieved, he shall not be relieved from his post till the next date of hearing. The State opposite parties has come out with a plea that there is no dispute about the fact that the Director of Higher Education has been bifurcated by taking of +2 wing from it having handed over to the School & Mass Education Department by a separate directorate in the name of Directorate of Higher Secondary Education, but the Notification dated 24th May, 2016 has taken care of the fact that for a period of one year all the employees working under the Directorate of Higher Education Department will be on deployment to the School & Mass Education Department and as such, he submits that since the order of transfer has been issued within one year and the petitioner since working Junior College will be said to be on deployment to the School & Mass Education Department will be controlling as an appointing authority for the said period and as such, he submits that the Directorate of Higher Education has got its jurisdiction and therefore, the order of transfer has been issued and subsequently, it has also approved by the Director of Higher Secondary Education. 6. This Court, after appreciating the arguments advanced on behalf of the parties and after going through the Notification dated 24th May, 2016, has found that the Government has decided to separate the Junior Colleges and Degree Colleges. It has been decided to bring the Junior Colleges to the administrative control of School & Mass Education Department for the academic session 2016-17 by creating a separate directorate with nomenclature “Directorate of Higher Secondary Education” with the following conditions : (i) Separation of +2 and +3 will be given effect from 1st July, 2016. (ii) all the teaching staff, including Junior and Degree lecturers presently working in Jr. Colleges shall be deemed to be on deployment to School & Mass Education Department for a period of one year initially. Simultaneously School & Mass Education Deptt. shall create equal number of PGT posts against the current sanctioned strength of 1023 Junior Lecturers and take steps for their recruitment within a year. Colleges shall be deemed to be on deployment to School & Mass Education Department for a period of one year initially. Simultaneously School & Mass Education Deptt. shall create equal number of PGT posts against the current sanctioned strength of 1023 Junior Lecturers and take steps for their recruitment within a year. Upon the joining of new recruits after due recruitment process, the Junior/Degree Lecturers working on deployment to School & Mass Education Department shall get reverted to Higher Education Deptt. To work against the existing vacancies in Degree Colleges. This will include Government College Lecturers as well as the aided college lecturers, i.e, those covered under GIA lecturers or Block grant, as the case may be. 7. The legal proposition of deployment is that if an employee will be deployed from one department to another department, lien of that post will be in the department who has passed order of deployment. Here in the instant case, the order of deployment has been passed by virtue of Notification dated 24th May, 2016 for a period of one year, meaning thereby all the employees who have sought to be transferred from 1.7.2016 will be said to be an employee of Director of Higher Education for a period of one year, i.e. upto 1.7.2017. In between 1.7.2016 and 1.7.2017 the Director of Higher Education will be said to be the cadre controlling authority and as such, the Department of Higher Education will be said to be an authority to pass an order of transfer being the cadre controlling authority. 8. This Court, after going through that part of notification as quoted above, is of the view that for a period of one year since the petitioner was on deployment under the School & Mass Education Department and as such, the Department of Higher Education will be the cadre controlling authority and as such, the decision for transfer can be taken by the Department of Higher Education and in view thereof, the jurisdiction of Department of Higher Education cannot be disputed. So far as the Notification dated 9th January, 2017 (Annexure-3) concerned, the same will not give any aid to the petitioner, since by virtue of it, Director, Higher Secondary Education has been declared as Prescribed Authority relating to Private Higher Secondary Schools, but the petitioner is not under the private Higher Secondary School, hence this notification is not applicable. So far as the Notification dated 9th January, 2017 (Annexure-3) concerned, the same will not give any aid to the petitioner, since by virtue of it, Director, Higher Secondary Education has been declared as Prescribed Authority relating to Private Higher Secondary Schools, but the petitioner is not under the private Higher Secondary School, hence this notification is not applicable. Accordingly, the petitioner has failed to make out a case. 9. In view thereof, the order of transfer dated 7.6.2017 passed by the Director of Higher Education, Odisha, Bhubaneswar on this ground cannot be interfered with by this Court. Hence, the writ petition is devoid of merit and as such, the same is dismissed. The interim order dated 22.11.2017 stands vacated. At this juncture, learned Counsel appearing for the petitioner submits that the petitioner is to retire within a period of two years and there is a policy decision of the State Government that if an employee is to retire within two years, so far as possible, the employee cannot be transferred. However, this pleading has not taken by the petitioner in this writ petition, but since this point has been raised and there is also decision of the State Government and as such, it is appropriate to give liberty to the petitioner to file representation before the concerned authority by giving therein details and if that would be done, the concerned authority shall take decision in accordance with law within a period of three weeks from the date of receipt of certified copy of this judgment. Petition dismissed.