Orissa High Court
Unknown vs 3 12.7.2013 on 12 July, 2013
Author: M.M.Das
Bench: M.M.Das
W.P.(C) No.14057 of 2013
W.P.(C) Nos.14057, 14059 and 14062 of 2013
03 12.7.2013
Though all these writ petitions have been listed for admission, but on the consent of the learned counsel for the parties, the same are taken up for final disposal.
We have heard Mr. B.Routray, learned Senior Counsel appearing for the petitioners in W.P.(C) No.14057 of 2013 and 14059 of 2013, Mr.S.K.Padhi, learned Senior Counsel appearing for the petitioner in W.P.(C) No.14062 of 2013 and Mr. Sangram Das, learned counsel for the State.
2. In all the writ petitions, challenge is being made to the order of transfer passed by the Director, Higher Education, Orissa, Bhubaneswar.
3. The case of the petitioners is that in absence of any cadre, as provided under Sec. 10 (C) of the Orissa Education Act, (hereinafter referred to as 'Act' for the sake of brevity), the impugned order is bad in law. It is further stated that though a specific provision has been provided under Sec.10 (C) of the Act to constitute a common cadre of lecturers of different subjects in the different colleges, but no common cadre has been constituted till now. It is further stated that transfer of an employee of an aided college is governed under a set of statutory rules i.e. Orissa Aided Educational Institutions Employees Common Cadre and Inter transferability Rules, 1979 (hereinafter referred to as 'Rules' for the sake of brevity). Rule 3 of 1979 Rules provides constitution of the common cadre. Rule 6 vests the power on CB the Director to transfer an employee of a common cadre in case of colleges. However, no common cadre has been 2 constituted.
4. Pursuant to issuance of notice, opposite parties entered appearance and filed counter affidavit. The specific case of the opposite parties is that a common cadre of lecturers of all aided colleges of the State has been constituted by the State Government in exercise of the powers conferred by sub-Sec. (1) of Sec.10 (C) of the Act vide Government order dated 22.10.1982 under Annexure-A. The further case of the opposite parties is that once a cadre is constituted, all persons, who are subsequently appointed to the service, are automatically appointed to the cadre. It is further stated that all persons, who are appointed in aided colleges as lecturers in regular manner and are receiving Grant-in-Aid, are borne in the common cadre and, as such, any lecturer being within the said cadre is liable to be transferred.
5. Referring to the provisions of Sec.10 (C) of the Act and Rules 3 and 6 of the 1979 Rules, learned Senior Counsel appearing for the respective petitioners submit that since no cadre has been constituted till date, the order of transfer is bad in law and unworkable.
6. Per contra, learned counsel appearing for the State submits that a common cadre of lecturers of all the aided colleges of the State has been constituted way back on 22.10.1982 vide Annexure-A. Furthermore, all persons, who were subsequently appointed to the service, are automatically appointed to the cadre and any lecturer being within the common cadre, is liable to be transferred by the State 3 Government under sub-sec. (6) of Sec.10 (C) of the Act as well as 1979 Rules.
7. On the rival submissions of the parties, really one point arises for consideration as to whether a common cadre of lecturers relating to the aided colleges of the State of Orissa has been constituted by the State Government in accordance with the provisions of Sec.10 (C) (1) of the Act and whether the petitioner, who has been appointed in an aided college as lecturer in a regular manner receiving Grant-in-Aid, is borne in the common cadre and liable to be transferred.
8. Though submissions of the learned Senior Counsel appearing for the respective petitioners at flash appears to be persuasive, but on a dipper scrutiny of the provisions of Sec.10 (C) (1) of the Act and Rules 3 and 6 of the 1979 Rules and the order dated 22.10.1982 vide Annexure-A, the same holds no water. In service jurisprudence, the term 'cadre' has definite legal connotation. The word 'cadre' is not synonymous with service. Section 10 (C) of the Act provides for constitution of a common cadre and its consequences.
9. To appreciate the rival submissions made at the Bar, the provisions of sub-Secs. (1) to (5) of Sec.10 (C) of the Act and Rules 3 and 6 of the 1979 Rules are extracted hereunder:
"10-C. Constitution of common cadre and its consequences.
(1)The State Government may, by order, constitute a common cadre in relation to all or any class of employees of all or any category of aided Educational Institutions as may be specified in the order.4
(Provided that the State Government may constitute a common cadre in relation to all or any class of employees of all or any category of aided High Schools or Upper Primary Schools for the whole State or for any educational circle or 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 case 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 file with the Director or the Inspector of Schools, as the case may be.
(4) Any employee who fails to exercise option within the aforesaid period shall be deemed to have opted for being absorbed 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, as the case may, be, the Inspector of Schools, and the provisions of Section 10-A shall not apply to any such termination".
xxx xxx "Rule 3. Constitution of the common cadre - On constitution of the common cadre under Sub-section (1) of Sections 10-C by Government a gradation list of persons in respect of cadre, shall be prepared by the Director in Orissa Gazette No.1481 - Dt.20.7.1979 - S.R.O. No.722-79 in accordance with such direction as the Government may issue from time to time.
xxx xxx
6. Power to transfer - (1) The Director shall have the power to transfer employee of the common cadre in the case of Colleges. The Inspector in the case of High Schools and the District Inspector in respect of Middle English Schools shall have the power to transfer employee in the common cadre from the institution to another within the jurisdiction.
(2) The Director shall have the power to transfer employees 5 in the common cadre from one educational circle to another in respect of employees serving in High Schools and the Inspector, one educational district to other within his circle incase of employees serving of Middle English Schools.
(3) No employee who has not completed five years of the service in a particular institution shall be ordinarily transferred :
Provided that such an employee may be transferred before completion of the said period in public interest, administrative and academic consideration so demanded.
((4) The authorities empowered to make transfer under Sub rules (1) and (2) shall be the disciplinary authorities in respective cases during the period intervening the date of relief and date of joining)".
10. 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. When a cadre is constituted, all persons who were subsequently appointed to the service, are automatically appointed to the cadre and become subject to the conditions of the service relating to the cadre.
11. An identical question came up for consideration before this Court in the case of Akshya Kumar Beura Vrs.
Director, Higher Education and others, 1991(II) OLR-87. In the said case, this Court was called upon to decide as to whether the petitioner, who was not a person belonging to the common cadre of lecturers, was liable to be transferred. Referring to sub-Secs. (1) to (5) of Sec.10(C) and also Rules 3, 4 and 5 of the 1979 Rules, this Court in the aforesaid decision held as follows:-
6"A plain reading of Sub-sec.(2) of Sec. 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 provisions 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-sec. (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-sec. (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".
12. In paragraph-5 of the judgment, their Lordships further held as follows:-
"Sec.10-C(1) 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 class by themselves in respect of whom constitution of common cadres can be contemplated of. In schools trained graduates may be even contemplated as a different class. It is difficult to imagine that the State Government to 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.7
Constitution of a common cadre entails within 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 not inside the cadre, while the cadre is existing, are not eligible to the benefits enjoyed by those borne in the cadre. Such persons maybe 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-sec.(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 enacadrement 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. 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-sec.(6) 10-C as also under Common Cadre Rules. (emphasis is ours)
13. On taking a holistic view of the matter, we are of the considered opinion that a common cadre of lectures of all the aided colleges of the State have been constituted by the State Government way back on 22.10.1982 vide Annexure-A. 8 In the back drop of the settled legal dictum that 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, we are of the view that when a cadre is constituted, all persons, who were subsequently appointed to the service, are automatically appointed to the cadre and become subject to the conditions of the service relating to the cadre.
14. We further hold that all persons, who are appointed in an aided colleges as lecturers in regular manner and receiving Grant-in-Aid, are borne in the common cadre and the petitioners being such lecturers are within the common cadre and liable to be transferred, which power is vested in the Government under sub-Sec. 6 of Sec.10-C of the Act.
15. Referring to Annexure-A, list of 255 Non- Government Aided Junior Colleges receiving Grant-in-Aid prior to 1994, Annexure-B list of 193 Non-Government Aided Junior Colleges receiving Grant-in-Aid under Grant-in-Aid Order 1994, Annexure-C, list of 40 Non-Government Block Grant Junior Colleges receiving Block Grant in Grant-in-Aid Order 2004 and Annexure-D, list of 108 Non-Government Aided Degree Colleges receiving Grant-in-Aid prior to 1994 which are appended to Orissa (Aided Colleges, Aided Junior Colleges and Aided Higher Secondary Schools) Grant-in-Aid Order 2009, it is submitted that a cadre in respect of the colleges receiving Grant-in-Aid after 1994 has not been 9 constituted.
16. We are afraid that once a college comes within the purview of Grant-in-Aid fold, there is no provision for making a separate notification of encadrement of every such individual appointment.
17. All the contentions raised by the learned Senior counsel appearing for the respective petitioners having failed, the writ applications are liable to be dismissed. The writ applications are accordingly dismissed. No order as to costs.
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M.M.Das, J.
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Dr. A.K.Rath, J.
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