Orissa High Court
Akshaya Kumar Beura vs Director, Higher Education And Ors. on 29 March, 1991
Equivalent citations: 1991(II)OLR87
JUDGMENT L. Rath, J.
1. The petitioner, a lecturer in Ekamra Mahavidyalaya, Bhubaneswar, having been transferred to Jashipur College in the district of Mayurbhanj, has moved this Court assailing the order of transfer. The. facts are that on the passing of the order of transfer on 14-12-1990 the petitioner filed O. J. C. No. 5039 of 1990 for quashing the order mainly on the ground that he was a person not liable to be transferred since he was not borne in the common cadre of lecturers relating to the aided colleges. The case was disposed of on 20-12-1990 permitting the petitioner to file a representation before the appropriate authority within two weeks from the date of order whereafter the representation was to be disposed of within two weeks. The representation in question was made by the petitioner to the opp, party Mo. 1 on 31-12-1990 who communicated his decision refusing the same on 11-1-1991, annexed to the writ petition as Annexure-4, saying that since the petitioner was entitled to full salary cost from the date of his- Joining the new college, he is deemed to have come to the common cadre and that formal encadrement and notificatfon takes an enormously long. time it was further stated that pending, such notification, marry other persons have been extended the benefit of common cadre and accordingly the petitioner has been transferred and could have no ground for complaint. Mr. G. N. Mohapatra, the learned counsel appearing for the petitioner,. has urged, in questioning the transfer, the following submissions ;
(1) That the petitioner is not a person belonging to the common cadre of lecturers and hence is not lible to be transferred out of his own college of appointment ;
(2) That the transfer is mala fide in nature since the opp. party No. 4 who has been transferred in his place to Ekamra College had been transferred to Jashipur College on transfer only 45 days back ;
(3) That the transfer has been directed in the middle of the academic session contrary to the Government's guidelines for the same and that his children who are studying in the Central School, Bhubaneswar and are to appear in examinations would suffer; and (4) Since the petitioner's wife is serving in the Central School as a teacher at Bhubaneswar and the Government's direction is that husband and wife are to be posted together, the transfer ought not to have been directed.
Counter affidavits have been filed by the opposite party Nos. 1 and 3, the Director, Higher Education and the Government of Orissa ; by the opp. party No. 2, the Principal, Ekamra Mahavidyalaya; and by the opp. party No. 4, the lecturer who has been transferred in place of the petitioner. So far as the counter affidavit of the Director and the Government is concerned, it is contended therein that the petitioner is a member of the common-cadre of lecturers which has already been constituted and hence his transfer is legal. It is further stated that the petitioner has been continuing in the Ekamra Mahavidyalaya since 1984 and hence his transfer cannot be called unjustified.
2. As regards the first submission, it is urged by Mr. Mohapatra that Section 10-C of the Orissa Education Act which makes the provision for constitution of the common cadre, stipulates that before a person is grafted to a cadre his option has to be asked for whether he intends to be absorbed there and since the petitioner has not been afforded any such opportunity to state his opinion, he cannot be said to be borne in the cadre. In support of submission reliance is also placed on the very impugned order of the Director in Annexure-4 wherein the petitioner was communicated that formal encadrement and notification takes an enormously long time and that the petitioner shall be deemed to have come into the common cadre. It is Mr. Mohapatra's submission that there is no provision in the Orissa Education Act providing for a deemed encadrement and that the fact that the- petitioner is not encadred would itself appear from the letter wherein it is stated that because of long time process involved in the matter of encadrement and notification, reliance is being placed by the Government on a deemed encadrement.
3. To appreciate the submission, the provisions of Sub-Secs. (1) to (5) of Section 10-C as also Rules 3, 4 and 5 of the Orissa Aided Educational Institutions Employees' Common Cadre and Intertransferability Rules, 1979 (hereinafter referred to as 'the Common Cadre Rules' ) may be extracted :
"10-C. Constitution of common cadre and its consequences. (1) The State Government may, by order, constitute a common cadre in relation to ail or any class of employees of all or any category of aided educational institutions, as may be specified in the order.
(2) Before constitution of a common cadre under Sub-section (1) the Director, in Case of Colleges, and the Inspector of Schools having jurisdiction, in cases of schools, shall furnish detailed information relating to the terms and conditions of service prescribed for such cadre to every employee belonging to that cadre with a notice requiring him to exercise his option within such period, not being less than thirty days and more than forty-five days as may be specified therein, for absorption or otherwise in such cadre.
(3) The option shall be exercised in writing and shall be filed with the Director or the Inspector of Schools, as the case may be.
(4) Any employee who fails to exercise his option within the aforesaid period shall be deemed to have opted for being obsorbed in the common cadre.
(5) Where an employee of educational institution exercises his option for not being absorbed in the common cadre the Managing Committee or, as the case may be, the Governing Body of the institution shall terminate the services of such employee within fifteen days from the date of receipt of an intimation to that effect from the Director or, as the case may be, the Inspector of Schools, and the provisions of Section 10-A shall not apply to any such termination."
"Rule 3. Constitution of the common cadre :__ On constitution of the common cadre under Sub-section (1) of Section 10-C by Government a gradation list of persons in respect of cadre shall be prepared by the Director in accordance with such directions as the Government may issue from time to time.
(4) Inter se seniority, transfer, promotion and confirmation shall be confined to the particular cadre.
(5) The number of posts in each cadre may be varied from time to lime depending on the requirement of posts in the institutions for any other purpose."
A plain reading of Sub-section (2) of Section 10-C of the Orissa Education Act shows that the option in question is to be invited from the persons at the first constitution of the cadre. It is the specific legislative provision that before the cadre is constituted every employee who is to be absorbed in that cadre is to be furnished with the detailed, informations regarding the terms and conditions of service and option is to be asked from him giving him time to exercise the same within not less than thirty days and not more than 45 days. Sub-section (4) makes provision for a deemed exercise of option in favour of encadrement if there is a failure to exercise the option within the stipulated period and under Sub-section (5) if an employee refuses to be absorbed in the cadre, his services are to be terminated. There is no provision in the Section requiring an option to be invited as and when every new appointment is made to the category of service in respect of which the cadre is constituted. Once a cadre is constituted of a service, all appointments made thereafter to the service are, ordinarily, made in the cadre either as within the strength of the cadre or as temporary additions to the strength. The contention of there being a requirement to ask for option to every fresh appointee is wholly without substance being plainly unworkable. It is well known that when a cadre is constituted, all persons who are subsequently appointed to the service are automatically appointed to the cadre and become subject to the conditions of service relating to the cadre. This submission of Mr. Mohapatra must accordingly fail.
4. The question however does not rest there. It is the further submission of Mr. Mohapatra that in effect no common cadre has been constituted as yet of all the lecturers of all the aided colleges and that no such cadre has been constituted in respect of new entrants to the service. He has placed reliance on the order of the Education & Youth Services Department of 22-10-1982 (Annexure A to the counter affidavit of the opp. party Nos. 1 and 3 ) under which the cadre is stated to have been constituted. The relevant portion of the order is as follows :
"Now, therefore, in exercise of the powers conferred by Sub- Section (1) of Section 10-C of the Orissa Education Act, 1969 (Orissa Act 15 of 1963), the State Government do hereby constitute separate common cadres in relation to each of the following classes of employees of aided educational institutions, under the fold of direct payment system of grant-in-aid being colleges, who have opted or deemed to have opted or deemed to have opted for absorption in the concerned common cadre :
1. Lecturers.
2. Grade of Readers which includes Principals."
It is the submission of the learned counsel appearing for the petitioner that since the constitution of the common cadre is only in relation to lecturers who have opted or are deemed to have opted for absorption, there is no ipso facto encadrement of all persons who were appointed to different aided colleges thereafter. Refuting the submission of the learned Additional Government Advocate that in effect the cadre was constituted for all the lecturers of the aided colleges which had been admitted to the direct payment system of grant-in-aid and that otherwise the constitution of cadre would have no meaning. He has also placed reliance on Rules 3 and 5 of the Common Cadre Rules that the number of posts borne in the cadre may be varied from time to time and that the interse seniority, transfer, promotion and confirmation shall be confined to that particular cadre. Relying upon these provisions, it is his submission that if the cadre is not taken to have been constituted for all lecturers, the cadre itself becomes unworkable.
5. Section 10-C (I) vests authority in the Government to constitute a common cadre in relation to all or any class of employees of all or any category of aided educational institutions. The lecturers of the aided colleges or the teachers of the aided schools constitute classes by themselves in respect of whom constitution of common cadres can be contempt lated of. in schools trained graduates may be even contemplated as a different class. It is difficult to imagine that the State Government in constituting a common cadre of lecturers of aided colleges will make a further classification between the persons who are existing by the date of the constitution of the cadre and those who are appointed thereafter. Such a classification would neither be intelligible nor reasonable. Constitution of a common cadre entails with it different consequences bearing upon the service career of the incumbent, such as seniority, promotion, pay, etc. It may justifiably be said that the persons who are no inside the cadre, while the cadre is existing, are not eligible to the benefits enjoyed by those borne in the cadre. Such persons may be adversely affected if they are not included in the cadre. The entire mischief appears to have arisen from the words used in Annexure-A extracted above wherein the constitution of the cadre was directed of lecturers who have opted or deemed to have opted for absorption in the concerned cadre, Even though on a plain reading the words are amenable to an interpretation as is suggested by Mr. Mohapatra, yet we think that the real intention behind the order was different and that phraseology used is more a matter of confusion than revealing one real intention. It could not have been the intention of the Government in making the order to confine the constitution of the : cadre only to the existing personnel and leave out all persons who would be appointed thereafter. It is to be remembered that persons who had opted not to be included in the cadre were to have their services terminated under Sub- Section (5) of Sec, 10-C. It rather appears that specifically the lecturers who had opted or were deemed to have opted were indicated in the order only for the purpose of identification but not so as to exclude others. The communication of the Director in Annexure-4 that formal encadrement and notification takes a long time as such never meant that the petitioner was not within the cadre but only meant that a formal notification publishing the list of the cadre takes a long time. There is no provision of making a separate notification of encadrement of every such individual appointment. In that view of the matter, we would hold that all persons who are appointed in aided colleges as lecturers in the regular manner are borne in the common cadre and hence the petitioner being one such, is within the common cadre and was liable to be transferred which power vested in the Government under Sub-section (6) of Section 10-C as also under the Common Cadre Rules.
6. The next two submissions of the petitioner may be taken up together, i.e. as regards the mala fide nature of his transfer and a transfer effected during the middle of the academic session. Even though it is a fact that the opposite party No. 4 had been posted in Jashipur College on 27-10-1990 and the impugned transfer was effected on 14-12-1990. yet from that itself we are not prepared to accept the submission of the transfer having been made mala fide. It is to be remembered that the petitioner himself has been continuing in the Ekamra Mahavidyalaya since 1984. Once it is said that he is found liable to be transferred, if for any reason the opposite party No. 4 is transferred earlier than due and the petitioner is posted to that place it would not ipso facto lead to a conclusion of mala fide without more farts being placed. No such facts have been brought on record and hence there is no warrant to draw such a conclusion As regards the transfer during the academic session, it is fairly conceded by the learned Additional Government Advocate that the guidelines issued by the Government in the matter also serve as the guidelines so far as the transfer of lecturers to aided educational institutions are concerned, but. however it is his submission that on the one hand the academic session is already over and on the other hand the petitioner in this particular case is not to suffer any prejudice on that count because his wife herself is a teacher in the Central School and education of the children which is the main consideration so far as the mid academic session transfer is concerned, is not to be affected in any manner. Such facts are not disputed by the petitioner. Be that as it may it appears that the opposite party No. 4 has already joined the college in place of the petitioner and since we find that the petitioner was liable to have been transferred, his transfer during the academic session must be taken as being in exigencies of service of the particular case and no relief is available to him on that score. The petitioner's submission that his transfer should not be given effect to in view of his wife's posting in Bhubaneswar is equally without force since the principle cannot be said to have an universal application, particularly when husband and wife are not employees under the same master. Another submission of Mr. Mohapatra is that since the post at Jashipur College has not been held by any qualified person for five years, it would not quality for grant in aid and that the petitioner is to suffer on his posting inasmuch as he would not get the scale of pay as he was getting in the Ekamra Mahavidyalaya. The apprehension is unfounded since the petitioner being transferred would obviously get his own scale of pay as grant-in-aid as he was getting in Ekamra Mahavidyalaya, a fact which has been conceded by the learned Additional Government Advocate, Mr. S. K. Das.
7. In the result, it must be held that the writ petition has no merit. By order No. 6 dated 13-2-1991 we had directed, as an interim measure, the petitioner to continue as a lecturer in the Ekamra Mahavidyalaya and as being entitled to arrear and current salary and allowances and that responsibility for payment of the arreac and current salary would be fixed in accordance with the decision of the case. Since we find that both the order of the Government in Annexure-A to the counter affidavit as also the communication in Annexure-4 his scope of creating confusion in the petitioner's mind that in fact a common cadre including him had not been constituted, we hold that the confusion so created was the justification for him to come before this Court and hence the payment already mad to him would not be recoverable, but however the petitioner would have no /unification not to join his place of transfer hereafter and the payment of his salary from the month of April onwards shall be dependent upon his so joining He is entitled to the pay till the end of March 1V9.1 as per the earlier order of the Court on 13-2-1991, The writ petition is dismissed, but in the circumstances there shall be no order as to costs.
K.C. Jagadeb Roy, J.
8. I agree.