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Judgment
Heard the parties.
The present writ petition has been filed for the following reliefs:
Issuance of a direction, order or writ, including writ in the nature of certiorari quashing the office order dated 10/06/2022 bearing office order no. 61/2022 issued by the orders of the Vice Chancellor of the Tilka Manjhi Bhagalpur University, Bhagalpur (hereinafter referred to as "the University"), by which the petitioner has been transferred from S.M. College, Bhagalpur to Murarka College, Sultanganj, which are both constituent units of the University;
Issuance of a direction, order or writ, including writ in the nature of mandamus commanding the concerned respondent authorities under the University to post the petitioner in the capacity of an Assistant in the University headquarters, which is the parent place of his appointment and posting in terms of the provisions contained under the Bihar State Universities Act, 1976 and the statutes framed thereunder;
Issuance of a declaration holding that the petitioner is entitled to continue in the capacity of an Assistant in the services of Headquarters of the University and as such, the action on the part of the concerned respondent authorities under the University in seeking to transfer the petitioner outside the University Department in the constituent college of the University is impermissible in the eyes of law the same being in blatant disregard and violation of the provisions contained under Bihar State Universities Act, 1976 as well as the judgments passed by this Hon'ble Court;
Issuance of an ad interim order of stay against the operation of the impugned office order dated 10/06/2022 bearing office order no. 61/2022 issued by the orders of the Vice Chancellor of the University during the pendency of the present case;
Any other relief that the petitioner may be found to be entitled to in the facts and circumstances of the present case.
BRIEF FACTS OF THE CASE
The brief facts which are essential for adjudication of the present writ petition are that an advertisement was issued by the University on 18.10. 2001, for appointment on different class III and class IV posts in the University. The petitioner being eligible, submitted his application in the prescribed performa, for being considered against a class III post. The petitioner was directed by the University to participate in the written examination vide letter dated 28.02.2002, which was to be conducted by the University for appointment on class III post. The petitioner participated in the written examination, which was conducted by the University and subsequent thereto vide letter dated 18.04.2002 issued under the signature of the Deputy Registrar, Tilka Manjhi Bhagalpur University (T.M.B.U.) Bhagalpur, the petitioner was directed to participate in the interview, which was to be held on 27.04.2002.
On the basis of the written test and the interview vide office order no. 171 contained in memo no. B/20776/21097 dated 05.06.2003 issued under the signature of the Registrar, T.M.B.U., Bhagalpur, the petitioner along with others was appointed in the services of University. The name of the petitioner appears at serial no. 13 of the memo dated 05.06.2003 and he was appointed as an Assistant in the Pay-scale of Rs. 1500-2750/- in the University office.
The petitioner submitted his joining and started working as an Assistant in the University. Later on vide office order contained in memo no. B-15793-963 dated 27.05.2006 issued under the signature of the Registrar, T.M.B.U., Bhagalpur the petitioner was absorbed in the services of the University on the post of store-keeper. The petitioner was transferred from one department of the University to another department of the University and he continued to perform his duties, to the satisfaction of the authorities of the University. All of a sudden, while the petitioner was working in the establishment section of the University, vide office order no. 41/11 dated 19.02.2011, the petitioner was transferred to S.S.V. college at Kahalgaon, a Constituent unit of the University.
The petitioner assailed the said order by filing a writ petition before this Hon’ble Court. The writ petition filed by the petitioner was numbered as CWJC no. 15233 of 2013 and finally vide order dated 30.10.2013 passed by a Hon’ble Single Judge of this Hon’ble Court, liberty was granted to the petitioner to file an appeal before the Hon’ble Chancellor of the Universities. The petitioner submitted his representation/appeal before the Hon'ble Chancellor of the Universities. Subsequently, vide memo no. B/9372/408 dated 30.05.2016 issued under the signature of the Registrar, T.M.B.U, Bhagalpur, the designation of the petitioner was changed from Storekeeper to Assistant. When no action was taken on the representation filed by the petitioner before the Hon’ble Chancellor of the Universities, even then the petitioner kept on filing one representation after another. In the meantime, the petitioner was transferred from S.S.V. College, Kahalgaon, to the department of Angika in the University and he gave his joining in the said department. Again, the petitioner was transferred from the Department of Angika to Murarka College, Sultanganj, a Constituent unit of T.M.B.U, Bhagalpur.
The petitioner filed an application/representation before the authorities of the University and subsequently vide memo no. RO/SPL/2030-87 dated 10.08.2020 issued under the signature of the Registrar, T.M.B.U., Bhagalpur, the petitioner was transferred from Murarka College, Sultanganj to the establishment section of the University. Again, vide memo no. RO/SPL/2218-227 dated 16.09.2020, issued under the signature of the Registrar, T.M.B.U., Bhagalpur the petitioner was repatriated to Murarka College, Sultanganj, on account of administrative exigency and was deputed to Sundarwati, Mahila College, Bhagalpur, in view of his representation submitted before the Hon’ble Chancellor of the University. In the order dated 16.09.2020 it was further mentioned that the petitioner will draw his salary from Murarka College, Sultanganj. Immediately thereafter, vide memo no. B/1919-1946 dated 28.01.2021 issued under the signature of the Registrar, it was notified that the petitioner will get his salary from Sundarwati Mahila College, Bhagalpur, where he was deputed.
The petitioner filed a representation before the University authorities, however, no action was taken and all of a sudden, by the impugned order contained in memo no. ACC/3592-95 dated 10.06.2022 issued vide office order no. 61/2022, the petitioner was transferred from S.M. College, Bhagalpur to Murarka College, Sultanganj, with immediate effect in view of the administrative exigencies. The petitioner again filed representation before the respondent authorities. However, no action was taken on the representation filed before the University, therefore he was constrained to file the present writ petition. Vide order dated 28.07.2022 passed in this writ petition, a Hon’ble Single Judge of this Hon’ble Court, while issuing notice to the respondents to file their reply, directed that in the meanwhile and until further orders the effect of and operation of the order dated 10.06.2022, by which the petitioner was transferred from S.M. College, Bhagalpur, to Murarka College, Sultanganj shall remain stayed. It was also directed that the petitioner shall be allowed to perform his duty at the place of posting as prior to 10.06.2022 and shall also be allowed to draw his salary.
SUBMISSION ON BEHALF OF THE PETITIONER
The learned senior counsel for the petitioner submits that from the appointment letter issued in favor of the petitioner, it is established beyond all reasonable doubt that the place of appointment and posting of the petitioner in the capacity of an Assistant was in the services of the University and the petitioner was entitled to continue in the services of the University office alone and as such, in absence of their being any provision under the Bihar State Universities Act, 1976 with respect to the provision for joint cadre of Class III and Class IV employees working in the services of the University and its constituent colleges, the services of non-teaching employees working in the University are not transferable from University headquarters /offices to any other constituent unit and vice versa or even from one constituent unit to another constituent unit. He submits that since his initial appointment and joining in the services of the University, the petitioner was continuing in the University headquarters/offices in the capacity of Assistant, which was strictly in accordance with law, as his initial appointment and joining has been in the University office only. He submits that in absence of any provisions and a common cadre of class III employees working in the services of the University, the Vice Chancellor of the University did not have any authority vested in him to transfer the petitioner from the University headquarters/offices to any College under the University.
The learned senior counsel for the petitioner further submits that the action on the part of the concerned respondent authorities under the University in transferring the petitioner from the University headquarters to different constituent units and again from such constituent colleges to the University headquarters/ its Department is clearly impermissible in the eyes of law, as there is neither any provision laying down the procedure to be adopted for the purposes of effecting transfer of non-teaching employees. A Class III employee working in the services of the University headquarters and one working under different constituent colleges do not form part of common cadre. Therefore, they are not transferable from the University headquarters to the constituent colleges or vice versa, nor from one constituent college to another. He submits that from perusal of the office order dated 05.06.2003 issued by the University, it is evident that the initial appointment and joining of the petitioner was at the University headquarter. Even at the time of regularization/absorption of the services of the petitioner, pursuant to the directions issued from the Governor Secretariat, although his designation was wrongly typed as “Stenographer”, which was subsequently corrected, the petitioner’s parent place of posting was never shown as Murarka College, Sultanganj.
The learned Senior counsel for the petitioner submits that the action of the University authorities in transferring the petitioner from the University headquarter to different Constituent Colleges within the jurisdiction of University is arbitrary, unreasonable, blatant disregard and violation of the provisions contained in the Bihar State Universities Act, 1976 and the Statutes framed thereunder. He further submits that since the Vice Chancellor of the University does not have any authority vested in him in terms of the provisions contained in the Bihar State Universities Act, 1976, to transfer any Class III or Class IV employee from the University headquarter to any constituent colleges in absence of a common/joint cadre of non-teaching employees. Therefore, the action of the authorities of the University in transferring the petitioner from the University headquarter to other constituent colleges is not in accordance with law.
The learned Senior counsel for the petitioner in support of his contention refers to and relies upon an order dated 09.05.2000 passed by a Hon’ble Single Judge of this Hon’ble Court in C.W.J.C. No. 893 of 2000 (Manan Singh Vs. The B.N. Mandal University & Ors.), whereby, in paragraph no. 5 to 8 it has been held as under:
5.It is a settled law that the transfer can be made only within cadre. No person can be forced to join in Ex-cadre post without deputation.
6.In the counter affidavit, it is pleaded that both the Colleges are constituent units of the University, but plea taken by the University's counsel that it is a joint cadre. This stand cannot be accepted in view of specific statement made at Paragraph No.5 to the counter affidavit, wherein the Respondents University itself have stated that "there is no cadre amongst the employees of the University appointed and working on the same post". The cadre is a strength of service or part thereof. It is a settled law that a cadre is required to be constituted specifically by an instrument. In absence of any order/rule, a combined cadre cannot be presumed.
7.In a case of Rajniti Prasad vs. Chancellor and ors. (C.W.J.C. No. 2783/97), this Court by its order and judgment dated 11th September, 1997, held that the non-teaching employees of constituent Colleges have no joint cadre with the University. Similar view was taken in the case of Rajendra Nath Bhuwan vs. B.N. Mandal University and ors. (C.W.J.C. No. 7953/97), disposed of on 9th January, 1998, wherein the Court held that Vice Chancellor and University have no jurisdiction to transfer any Class-Ill employee from one College to another College and/or under the University.
Similar view has been also taken in the earlier case of Ram Subhak Singh vs. B.R.A. Bihar University (C.W.J.C. No. 4486/93), disposed of on 30th September, 1994.
8.In view of aforesaid decision, I hold that the impugned order dated 4th January, 2000 as illegal, the Vice Chancellor having no jurisdiction to transfer the petitioner from one constituent College to another.
The learned senior counsel for the petitioner further refers to and relies upon an order dated 19.09.2001 passed by a Hon’ble Single Judge of this Hon’ble Court in C.W.J.C No. 2005 of 2001 (Prashant Kumar Suman Vs. The Vice Chancellor, L.N. Mithila & Ors.) whereby the Hon’ble Single Judge in paragraph no. 4 to 8 has held as follows:-
4.On the issue of the Vice Chancellor's power to make transfer of a Class III employee from one constituent college to another Mr. Singh referred to sections 2 (i), 10 (6) and10 (11) of the Bihar Universities Act. Section 2(i) defines 'Constituent College' to mean a teaching institution maintained or controlled by the University.
5.Section 10 deals with the powers and functions of the Vice Chancellor of the University.
6.Sub-section (6) of section 10 empowers the Vice Chancellor 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 subject to the provisions of the Act, statute and ordinances.
7.Sub-section (11) gives to the Vice Chancellor the power of general control over the educational arrangement of the University and makes him responsible for the discipline of the University. It further provides that it would be lawful for the Vice Chancellor to take all steps which are necessary for maintaining the academic standard and administrative discipline of the University.
8.In my considered view the provisions of section 10 (6) have no relevance to the point at issue. So far as sub-section (11) of section 10 is concerned, a general power for maintaining the academic standard and administrative discipline of the University can hardly be stretched to include the power of transferring a Class III employee from one constituent unit to another constituent unit. Moreover, from the attending facts and circumstances it also appears that the transfer was by way of punishment rather than a measure of administrative discipline.
The learned senior counsel for the petitioner further refers to and relies upon a Division Bench judgment of the Hon’ble Jharkhand High Court dated 13.01.2005 passed in W.P. (S) No. 2982 of 2003 (Baidyanath Thakur Vs. Ranchi University and Ors.) whereby the Hon’ble Division Bench while relying upon the case of Manan Singh (Supra), in paragraph no. 6 to 18, 28 and 29 has held as follows:-
6.In this case, the questions require to be determined are;
(a)Whether there is a joint cadre of all non-teaching (class-III & IV) employees of constituent colleges or the cadre of constituent colleges are separate, and;
(b)Whether the Office Order being Memo No. RU/Esstt./253-283 dated, the 11th January, 1991, as clarified by corrigendum, being Memo No. RU/ Esst./421-468 dated, the 13th February, 1991, issued by the Vice-Chancellor of the Ranchi University, Ranchi is applicable to non-teaching (Class-III & IV) employees of constituent colleges or not.
7.It is not in dispute that the petitioner was appointed as a temporary Office Clerk in the Bokaro Steel City College, Bokaro on 19th May, 1973 by the then Managing Committee of the college. At that time, the College was an affiliated college. On successful completion of the probation period, he was confirmed to the post of Lower Division Clerk with effect from 1st November, 1997, by the order of the Managing Committee of the College.
8.From the supplementary counter affidavit filed by the 4th respondent, it further appears that the Bokaro Steel City College, Bokaro was made a constituent college of Ranchi University in the year 1981.
9.Learned counsel for the petitioner submitted that the P.K. Roy Memorial College, Dhanbad was another affiliated college under the Ranchi University. It was also made a constituent college of Ranchi University. In the year 1992, after constitution of Vinoba Bhave University, both the Colleges i.e. Bokaro Steel College, Bokaro and P.K. Roy Memorial College, Dhanbad were carved out of the jurisdiction of Ranchi University and placed under the jurisdiction of Vinoba Bhave University w.e.f. 17th September, 1992 and made its Constituent colleges.
10.From the counter affidavit as was filed by the Ranchi University in one CWJC No. 1554 of 1986(R), a copy of which has been enclosed with supplementary counter affidavit filed by the 4th Respondent, it appears that there were three different cadres of the non-teaching employees Le.
(i)Non-teaching employees of Universities posted in its Head Office and University Departments; (ii) Non-teaching employees of constituent colleges; and (iii) Non-teaching employees of affiliated colleges. In the year 1971, there was a proposal to amalgamate the Cadre of University employees and the constituent colleges, but there is nothing on the record to suggest that the Cadres were amalgamated.
It further appears that the different Pay scales were prescribed for non-teaching (class- III) employees. One scale of pay for those non-teaching (class-III) employees who were appointed in the University and its Departments and another scale of pay for the non- teaching (class-III) employees who were appointed in constituent colleges and affiliated colleges.
From the recommendations of the Pay Revision Committees, as was accepted by the Government from time to time of which reference has been given in the earlier counter affidavit filed by the Ranchi University in CWJC No. 1554 of 1986(R), and the pleading made by the petitioner, it appears that the nomenclature of basic Class-III posts in the University and its Departments is Assistant, whereas those appointed in constituent colleges and affiliated colleges, are known as Clerks. The Government has provided a different scale of pay to the Clerks than the scale of pay of the Assistants.
11.It further appears that a letter No. B/5323-62 dated 15th December, 1987 was issued by the Deputy Registrar, Ranchi University to the Bihar Inter-University Board. In response to the said letter, Bihar Inter University Board in its meeting held on 25th August, 1990, vide its Resolution No. 84, decided that the non-teaching (class-III & IV) employees working in the University Office; Post Graduate Departments; Post Graduate Centres and the Units directly run by the University, such as University Library; Computer Centres etc. will constitute a Common Cadre. The aforesaid resolution of the Bihar Inter-University Board was approved by the Government of Bihar from its Department of Human Resources Development, Patna as also by the Chancellor of Universities of Bihar.
12.Taking into consideration the aforesaid decision of the Bihar Inter University Board as also Resolution No. 877, dated 22nd May, 1971, letter No P/9926-57 dated 2nd August, 1971 of Ranchi University, the Vice Chancellor of the Ranchi University in exercise of his powers conferred upon him under the provisions of the Bihar State Universities Act, 1976, declared that the non-teaching (class-III & IV) employees of Ranchi University Office; Post Graduate Departments; Post Graduate Centres and Units directly run by the University, such as University Library, Computer Centres, etc. shall constitute one Cadre under the Ranchi University with effect from the date of creation of the Ranchi University. This was communicated vide Ranchi University's Memo No. RU/Esstt/ 253-283 dated, the 11th January, 1991. There being clerical error and mistake in the Office Order, issued on 1 Ith January. 1991, a corrigendum was issued "By the order of the Vice Chancellor, Ranchi University, Ranchi", circulated vide Memo No. RU/Esstt/421-468 dated, the 13th February, 1991, relevant portion of which reads, as follows:
Due to some clerical error, there was a mistake in the office order issued vide Memo No. RU/Esstt./253-283 dated 11.1.1991. The third paragraph (last para) of this office order i.e. read as follows :
Considering the communication of the Bihar Inter University Board (Ref. No. IUD/3629/90), dated 13.12.1990 and the Ranchi University Syndicate Resolution No. 1877, dated 22.5.1971, the letter No. P/9926-57, dated 2 8.1971 under the signature of Assistant Registrar, Ranchi University along with seniority list, and the affidavits of the Ranchi University dated 8.12.86 and 13.4.88 in case No. CWJC 1554/86(R), the Vice-Chancellor of Ranchi University, in exercise of his powers vested upon him under the provisions of Bihar State Universities Act, 1976, as amended up- up-to-date, has been pleased to declare that the class III and TV employees of Ranchi University Office. P.G. departments, P.G. Centres, Computer Centre, Central Library and Units directly administered by Ranchi University be treated as of one cadre under Ranchi University service with effect from the creation of the Ranchi University.
The aforesaid office order dated 11.1.91 stands modified to that extent.
13.From the aforesaid fact, it will be evident that while the Bihar Inter University Board by its Resolution No. 84, dated 25th August, 1990 decided to have one common cadre of non-teaching (class-III & IV) employees posted in the University Office, Post Graduate Departments, Post Graduate Centres and Units directly controlled by the University, such as University Library, Computer Centre etc., no order was issued merging the Cadre(s) of non-teaching (class-III & IV) employees appointed and posted in one or other constituent college(s) of the University or in affiliated college(s) of the University.
14.From the decision of Ranchi University, contained in Memo No. RU/Esst/ 253-283, dated the 11th January, 1991 read with corrigendum, as contained in Memo No. RU/Esstt/421-468, dated the 13th February, 1991, it will be further evident that the Vice-Chancellor, Ranchi University in exercise of the powers vested under the provisions of the Bihar State Universities Act, 1976, though declared that the non-teaching (class- III & IV) employees of Ranchi University Office; P.G. Departments; P.G. Centres; Computer Centre; Central Library and Units directly administered by Ranchi University as a joint Cadre, but no order of merger was issued with regard to non-teaching (class-III & IV) employees who were appointed in affiliated college(s) or those colleges which were subsequently made constituent under colleges of the Ranchi University.
15.It has already been pointed out that the State Government has provided different scales of pay to the class-III employees of affiliated and constituent colleges, vis-a-vis, the non-teaching (class-III & IV) employees, appointed and posted in the Ranchi University, its Post Graduate Departments; and the Units under the direct control of the University. Thereby merger of two different class-Ill post having different nomenclature and scales of pay cannot be presumed in absence of issuance of any resolution providing them with common nomenclature and scale of pay.
16.It is relevant to state that there are different types of colleges and Institutions under the Universities, as defined under the Bihar State Universities Act, 1976. Section 2(b) defines Autonomous Institutions, which means any institution declared as such under the Act, which includes a College also. Affiliated college has been defined under Section 2(c) of the Act, which means educational institutions having received privileges of he University. There is a separate meaning of college as defined under Section 2{f), which means an institution maintained or controlled by the University or maintained by the State Government in which instruction is given. 'Constituent College' as defined under Section 2(i) means a teaching institution maintained or controlled by the University whereas Institution as defined under Section 2(k) means an Institution maintained or recognized by the University.
17.Therefore, it is clear that the University Office, its Post Graduate Departments, Post Graduate centers, Units controlled by it such as University Library, Computer Centres have separate identity than the other Institutions such as, (i) Autonomous institutions; (ii) Affiliated colleges; (iii) State Government colleges maintained by the State Government or (iv) the constituent colleges.
18.There is no separate definition of cadre laid down under the Bihar State Universities Act, 1976. The definition of 'Cadre' in general sense means, the strength of a service or a part of a service sanctioned as a separate Unit. "In the Service Jurisprudence, the expression 'cadre' means the unit of strength of a service or a part of it as determined by the employer And it is too well settled that services rendered by an employee in one cadre cannot be taken into account for determining the seniority in another cadre unless by any rules of seniority this privilege is conferred."
28.Thus, both the questions, as raised in the present case, are answered in favour of the petitioner and against the University. Accordingly, I hold that the non-teaching (class-III/class-IV) employees of University Office, Post Graduate Department of University, Post Graduate Centres and the Units directly administered by the University, such as Computer Centres, University Library etc. have a common Cadre, but so far affiliated colleges and constituent colleges are concerned, they have their independent separate college-wise cadre. Even there is no joint cadre of affiliated colleges nor there is any such joint cadre of constituent colleges. The Office Order contained in Memo No. RU/Esstt/253-283, dated the 11th January, 1991 and the corrigendum, contained in Memo No. RU/ Esstt/421 468, dated the 13th February, 1991 do not relate to the cadre of non-teaching (class-III/class-IV) employees of constituent colleges or the affiliated colleges. By the aforesaid order cadres of affiliated colleges and constituent colleges have not been merged with the non-teaching cadre of the University employees.
29.In view of decision made and finding given above, I hold that the Vice-Chancellor(s) of Universities within the territorial jurisdiction of Jharkhand have no jurisdiction to transfer a non-teaching (class-III/class-IV) employee from one constituent college to another constituent college. The respondents have no jurisdiction to transfer the petitioner from one constituent college to another constituent college, even though the Vice-Chancellor is the Principal Executive and the appointing authority of the employees of a constituent college under Section 10 of the Bihar Universities Act, 1976.
SUBMISSION ON BEHALF OF THE UNIVERSITY
Per contra, the learned counsel appearing on behalf of the University submits that on 19.12.1985 the petitioner was initially appointed as a Storekeeper at G.B. College, Naugachia, as a daily wager under staffing pattern. The salary of the petitioner and other similarly situated daily wage employees/temporary employees were stopped w.e.f. 01.09.1999 in view of letter no. B/18760-819 dated 30.08.1999 issued by the University, addressed to all the heads and the principals of the Colleges, on the directions issued by the State Government. Being aggrieved with the order dated 30.08.1999, several employees filed different writ petitions before the Hon’ble Patna High Court. In one of the writ petitions bearing CWJC no. 11854 of 1999 (Nikhil Kumar Jha & Ors. Vs. The State of Bihar & Ors.) this Hon’ble Court vide order dated 28.02.2000 set aside the communication dated 30.08.1999 of the University and directed the University to take steps for regularization/absorption against different posts. The University preferred an appeal however, during pendency of the appeal, the Secretary, Department of Education, Government of Bihar, Patna, directed all the Vice Chancellor’s in the Universities in the State of Bihar to take action for regularization of the services of daily wagers in the light of the order dated 12.04.2001 passed by Hon’ble Division Bench of this Hon’ble Court in LPA No. 1514 of 2000 (State of Bihar & Ors. Vs Vijay Kumar Jha & Ors.) An advertisement was published in the Hindi daily newspaper Hindustan in the year 2001 by the T.M.B.U., Bhagalpur, for appointment on Class III and Class IV post. The petitioner and others, after qualifying the written test and interview were declared successful and was temporarily appointed in the services of the University on the post of Assistant w.e.f. 05.06.2003.
The learned counsel for the University further submits that, prior to issuance of order dated 05.06.2003 vide office order no. 159 of 2002 dated 05.07.2002, appointment was made on class III post, however later on the same was canceled and another office order no. 32 of 2003 dated 26.01.2003 was issued. Subsequently, the said office order no. 32 of 2003 was also canceled and officer order no. 171 of 2003 dated 05.06.2003 was issued. Later on the said office order dated 05.06.2003 was also canceled and office order no. 69 of 2005 was issued, on the basis of the objections raised by the State of Bihar, therefore the claim of the petitioner, that he was appointed at University headquarter is not correct. He submits that from perusal of the admit card issued by the University in favor of the petitioner, it would appear that the petitioner at the time of submission of his application for class III post, was working at G.B. College, Naugachia, therefore the appointment of the petitioner was not a fresh appointment, rather it was an adjustment for absorption of daily wage/temporary employees. He submits that the facts relating to the initial appointment has been concealed by the petitioner, while filing the present writ petition.
The learned counsel for the University further submits that the matter with regard to appointment of daily wage/temporary employees came before the Hon’ble Chancellors of the Universities in the State of Bihar and the Hon’ble Chancellor directed the University to take steps for regularization of the services of all the daily wagers, whether Class III or Class IV, against vacant and sanctioned posts, in compliance of order passed by this Hon’ble Court in CWJC no. 11854 of 1999 (Nikhil Kumar Jha & Ors. Vs. The State of Bihar & Ors.). The University was directed to prepare list, as per seniority and after compliance of reservation roster and to send the recommendation to the State Government, with regard to the regularization of the services of daily wage employees for its approval. Pursuant to the directions given by the Hon’ble Chancellor, the roster of employees selected against Class III and Class IV posts was prepared in three units. The first unit with respect to employees serving at University headquarters and its allied units. The second roster was prepared with respect to the employees serving in the Post Graduate departments, and the third list was with respect to the employees serving in the Constituent colleges of the University. The name of the petitioner is mentioned in the roster prepared for Constituent colleges and as per the roster the petitioner was appointed on the post of Storekeeper at Murarka College, Sultanganj. Later on, he was sent on deputation to the University headquarters. The services of the petitioner and other similarly situated employees were absorbed in the regular establishment vide Office Order No. 88 of 2006 dated 27.05.2006 w.e.f. 05.06.2003. The absorption of the petitioner in regular service was in accordance with the approved roster. Therefore, it would transpire that the parent post of appointment and posting of the petitioner was at Murarka College, Sultanganj, and not at the University headquarters.
The learned counsel for the University further submits that, on the directions of the State Government, the petitioner, who was serving in the PG Department of Angika, was reverted back to his parent college i.e. Murarka College, Sultanganj, on 24.10.2011 and was later on posted as Assistant in the Establishment Section of the University on deputation. He was again reverted back to Murarka College on 18.07.2013. Thereafter, he was again posted to the University Establishment Section on deputation. Subsequently, he was transferred to S.M. College, Bhagalpur vide Office Order No. 143 of 2020 on deputation.
The learned counsel for the University further submits that, so far the allegation of the petitioner that the Vice-Chancellor of the University does not have any authority, in terms of the provisions contained in the Bihar State Universities Act, 1976, to transfer any Class III or Class IV employee from the University headquarter to any Constituent college for want of a common/joint cadre is concerned, it is submitted that the petitioner is not a Class III employee, whose appointment and posting was at University headquarter. Further as per the provisions contained in Section 10(18) of the Bihar State Universities Act,1976, the Vice-Chancellor has got the power to take disciplinary action against all employees of the University, including officers and teachers of the University. The petitioner has been transferred vide Office Order No. 61 of 2022 dated 10.06.2022 from S.M. College, Bhagalpur, to Murarka College, Sultanganj, which is his parent place of appointment. The transfer of the petitioner is a disciplinary action, taken on the basis of the written complaint dated 20.04.2022 submitted by the Principal, S.M. College, Bhagalpur, against the petitioner.
The learned counsel for the University finally submits that the petitioner has not filed the present writ petition with clean hand and has suppressed the material facts.
CONSIDERATION
Having considered the rival submissions and after going through the records, it appears that initially the petitioner was appointed as a Storekeeper at G.B. College, Murarka as a daily wage employee on 19.12.1985 under the staffing pattern, however the salary of the petitioner and other similarly situated daily wage employees/temporary employees. w.e.f. 01.09.1999 was stopped, in view of the letter of the State Government. The petitioner and others, filed different writ petitions before this Hon’ble Court. One of the writ petition bearing CWJC No.11854 of 1999 (Nikhil Kumar Jha & Ors. V/S the State of Bihar & Ors.) was allowed vide order dated 28.02.2000 and the letter of the University dated 30.08.1999, by which the salary of the petitioner and other similarly situated employees was stopped, was set aside. The University was directed to take steps for regularization/Absorption against different post. The University preferred an appeal, however during pendency of the appeal, the Secretary of the Department of Education, Government of Bihar, directed the Vice Chancellors of all the Universities in the State of Bihar to take action for regularization of the services of daily wagers in the light of the order dated 12.04.2001 passed by the Hon’ble Division bench of this Court in LPA No.1514 of 2000 (State of Bihar V/S Vijay Kumar Jha & Ors.). Pursuant thereto an advertisement was published on 18.10.2001 by the University, for appointment on Class-III & IV Posts. The petitioner, and others submitted their application form. From perusal of Annexure-1 & 2 to the writ petition it would transpire that the petitioner, at the relevant time was working in G.B. College, Naugachia, since he was informed at his College address to appear for written examination on 03.03.2002, for selection for appointment on Class-III Post. Subsequently the call letter for interview dated 18.04.2002, issued under the signature of the Deputy Registrar of the University, was also communicated to him at his College address, for appearing in the interview on 27.04.2002. The petitioner was appointed as a Class-III employee. From the counter affidavit of the University, it would transpire that initially the petitioner and others were appointed vide office order no.159 of 2002 dated 05.07.2002, however the same was cancelled and another office order no.32 of 2003 dated 26.01.2003 was issued. Subsequently the same was also cancelled and office order no.171 of 2003 dated 05.06.2003 was issued. Later on, the same was also cancelled and office order no.69 of 2005 was issued, on the basis of the objections raised by the State of Bihar, whereby the petitioner and others were appointed. It is the case of the University that he was appointed in the College by the said office order, however no document has been brought on record by the University to substantiate their claim. From annexure-4 to the writ petition i.e. memo no.963 dated 27.05.2006 issued under the signature of the Registrar, TMBU, Bhagalpur it would transpire that the petitioner and others were Absorbed in the regular services of the University, in view of the approval given by the State Government vide its letter dated 11.05.2006. The persons named therein, including the petitioner herein, were Absorbed in the regular services of the University w.e.f 05.06.2003 i.e. from the date of issuance of memo no.171 of 2003. The name of the petitioner appears at serial no.46 of the memo dated 27.05.2006 and he has been Absorbed on the post of Storekeeper in the University w.e.f. 05.06.2003. Subsequent thereto, vide office order no.252/16 contained in memo no. B/9372- 408 dated 30.05.2016 issued under the signature of the Registrar, TMBU, Bhagalpur, on the recommendation of the University Discrepancy Rectification Committee and on the orders of the Vice Chancellor of the University the Post of the petitioner was corrected from Storekeeper to the Post of Assistant. The name of the petitioner is mentioned at serial no.7 of the office order dated 30.05.2016. From perusal of memo dated 27.05.2006 and memo dated 30.05.2006 it is clear that the petitioner was Absorbed in the services of the University and the contention of the University to the effect, that he was appointed in G.B. College, Naugachiya/Murarka College, Sultanganj cannot be sustained, in view of any supporting documents. In view of the consideration made above, this court is of the considered opinion that the petitioner is an employee in the establishment of the University and he cannot be transferred to any Constituent College. He can be transferred to the University and its allied offices and not to any Constituent Colleges, within the Jurisdiction of the University. So far the contention of the Learned Senior counsel for the petitioner to the effect that Class-III & IV employees of the University or its Constituent Colleges cannot be transferred from the University and its allied officers to a Constituent College and even from one Constituent College to another Constituent College, since the University is a Unit and each Constituent College is a separate Unit and therefore the petitioner cannot be transferred from University or its allied officers to any Constituent College or even from one Constituent College to another, is concerned, after careful examination of the submission of the Learned Senior counsel for the petitioner and the Judgments referred to and relied upon by him, in the opinion of this court all the Judgments, which have been relied upon by the Learned Senior counsel for the petitioner are prior to coming into force of the Service Regulations with regard to the Class-III & IV employees of the Universities in the State of Bihar. The service condition of the employees came into effect from 04.03.2014 and from perusal of Rule 8 thereof it would transpire that the same is related to Promotion of the Class-III & IV employees of the University. Clause-8 (X) (C) specifically provides that University employees can be transferred to any Unit/University Department or any establishment/organization within the Jurisdiction of the University on similar Post. Similarly, from perusal of Clause-10 thereof it would transpire that for the purposes of Promotion the University office, its allied offices, Post Graduate departments, Post Graduate centers/establishments (imparting education up to Post Graduate level) will be considered One Unit and will be named Unit-I and all the Constituent Colleges and establishments (imparting education up to Graduate level) will be another Unit and will be called Unit-II. From a bare reading of the above two Clauses it is clear that an employee of the University can be Promoted/transferred and posted in one Unit i.e. Unit-I and similarly, an employee of the Constituent Colleges can be Promoted/Transferred and Posted in one Unit i.e. Unit-II. In no case they can be transferred from Unit-I to Unit-II or vice versa. They cannot be transferred from one Unit to another Unit even under the powers conferred to the Vice Chancellor of the University contained in Section 10 (18) of the Bihar State Universities Act 1976.
From the consideration made above this Court holds that the transfer of the petitioner from the University to S.M. college, Bhagalpur and then to Murarka college, Sultanganj is illegal and beyond the Provisions contained in Statute relating to the Service Conditions of the employees of the University, its allied offices, Post Graduate departments, establishments and the Constituent Colleges of the University, notified on 04.03.2014. The petitioner is entitled to be posted in the University or its allied offices i.e. Unit-1 and for payment of his salary. Accordingly, the office order no.61 of 2022 contained in memo no. 3592-95 dated 10.06.2022 issued under the signature of the Registrar, TMBU, Bhagalpur is hereby set aside. The petitioner will be entitled to be Posted in the University or its allied offices i.e. Unit-I with immediate effect. The writ petition is allowed in the aforementioned terms.
Pending applications if any, shall also stands disposed of.