Judgment:
S.J. Mukhopadhaya, A.C.J.
1. The writ petition has been preferred by the petitioner against the order contained in Memo No. VBU/Esstt/R/434/801/03 dated 24th May, 2003, issued by the order of the Vice Chancellor, Vinoba Bhave University, Hazaribagh (hereinafter referred to as the University), whereby and where under, the petitioner has been transferred from Bokaro Steel City College, Bokaro to P.K. Roy Memorial College, Dhanbad, on administrative ground, with immediate effect.
2. The main plea taken by the petitioner to assail the impugned order is that the cadre of constituent colleges being separate, the petitioner cannot be transferred from one constituent college to another constituent college.
3. The counsel for the petitioner relied on a Single Bench decision of Patna High Court in the case of Shri Manan Singh v. B.N Mandal University, reported in 2000(4) PLJR 127, wherein the Court held that there is no joint cadre of non-teaching (class- III & IV) employees of constituent colleges and, therefore, the Vice-Chancellor and the University have no jurisdiction to transfer a non-teaching employee from one constituent college to another constituent college.
4. The counsel appearing on behalf of the University relied on an Office Order issued by the Ranchi University, contained in Memo No. RU/Esstt/253-283, dated, the 11th January, 1991, as clarified by corrigendum circulated vide Memo No. RU/ Easstt/421-468, dated the 13th February, 1991, issued by the order of the Vice Chancellor of the Ranchi University, whereby and where under, in exercise of power vested upon him under the provisions of the Bihar State University Act, 1975, as amended up to date, the Vice-Chancellor of the University was pleased to declare that the non-teaching (class-III & IV) employees of the Ranchi University Office, P.G. Departments, P.G. Centres, Computer Centre, Central Library and Units directly administered by the Ranchi University will constitute one common Cadre under the University service with effect from the creation of the University. He also placed reliance on a Single Bench decision of Ranchi Bench of Patna High Court dated 19th March, 1991 in the case of Bacchha Prasad and Ors. v. Ranchi University and Ors., CWJC No. 1392 of 1989 (R), wherein the learned Single Judge having noticed the order dated 11th January, 1991 and cor rigendum dated 13th February, 1991, accepted that there is a joint cadre of all the assistants of the University.
5. On 16th September, 2003, when the present case was taken up by the learned Single Judge, he noticed the decision as rendered by the two Single Judges of Patna High Court in the case of Shri Manan Singh, (supra) and Bacchha Prasad, (supra), as also the powers and functions of the Vice-Chancellors as vested under Section 10 of the Bihar State Universities Act, 1976 (hereinafter referred to as the Act). While learned Single Judge opined that in his view, the appointing authority (Vice-Chancellor) has got the power to transfer the employees of one constituent college to another constituent college, observed that in view of conflicting decisions rendered by Single Judges in the aforesaid cases this case should be decided by a Division Bench and referred the case before the Division Bench.
6. In this case, the questions require to be determined are;
(a) Whether there is a joint cadre of all non-teaching (class-Ill & 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-Ill) 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 he 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-Ill & 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 lth 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 :
'RANCHI UNIVERSITY, RANCHI
Office Order
CORRIGENDUM
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-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.
By order of the Vice Chancellor
Sd/- (H. Oraon)
Registrar,
Ranchi University, Ranchi.
Memo No. RU/Esstt./421-468,
dated, the 13 February, 1991.
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-Ill & 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-Ill & 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-Ill & 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-Ill & 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 nomenclaure 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.'
19. The aforesaid finding was given by the Supreme Court in the case of State of Maharashtra v. Purushotam, reported in (1996) 9 SCC 266.
20. Admittedly, all the affiliated colleges were not made constituent colleges of the University on the same date. For example, Bokaro Steel City College, Bokaro which was an affiliated college run by the Managing Committee, was made a Constituent College in the year 1981. Whereas, P.K. Roy Memorial College, Dhanbad which was an affiliated college of the University was made constituent college on a different date. There is nothing on the record to suggest that the strength of non-teaching (class-III/class-IV) service or part of it, of one affiliated college or the constituent college, including both the colleges, in question were merged together and a common unit with a large strength of non-teaching (class-III/class-IV) service or part thereof, was determined by the employer i.e. Vice Chancellor of the University.
21. It has already been noticed that the Office Order, as contained in Memo No. RU/Esstt/253-283. dated, the 11th January, 1991 and the corrigendum, as contained in Memo No. RU/Esstt/421- 468, dated the 13th February, 1991 do not relate to the merger of the strength of units of class-III/class-IV employees of affiliated colleges or constituent colleges.
22. Thus, the submission as made on behalf of the University that the cadre of non-teaching (class-III/class-IV) employees of affiliated colleges and constituent colleges were merged with the cadre of non-teaching (class-III/class-IV) employees of University Office, Post Graduate Departments, Post Graduate Centres and other Units, such as University Library, Computer Centres etc., is rejected.
23. In the case of Shri Manan Singh v. B.N. Mandal University, reported in 2000 (4) PLJR 127, the Patna High Court noticed other decisions rendered by the Patna High Court. In the case of Rajniti Prasad v. Chancellor, CWJC. No. 2787 of 1997, the Patna High Court by its judgment and order dated 11th September, 1997 held that the non-teaching (class-III/class-IV) employees of constituent colleges have no joint cadre with the University employees.
24. Similar was the view taken by Patna High Court in the case of Rajendra Nath Bhuwan v. B.N. Mandal University, CWJC No. 7953 of 1997, disposed of on 9th January, 1998, therein the Court held that the Vice-Chancellor and the University have no jurisdiction to transfer any class-Ill, employee from one constituent college to another Constituent College and/or under the University.
25. Similar view was taken by the Patna High Court in the case of Ram Subhag Singh v. B.R.A., Bihar University, CWJC No. 4486 of 1993, disposed of on 30th September, 1994.
26. In the case Manan Singh, (supra), the Patna High Court held that the Cadre is required to be constitued specifically by any Instrument, in absence of any such Instrument/Order/Rule, no presumption can be made that the Cadres of the constituent colleges is one combined cadre.
27. I do not find any conflict between the decisions of learned Single Judges in Manan Singh's case, reported in 2000(4) PLJR 127, and the decision rendered by learned Single Judge in the case of Bacchha Prasad and Ors. v. Ranchi University and Ors., CWJC No. 1392 of 1989(R), decided on 19th March, 1991. The case of Shri Manan Singh, (supra) was a case of non-teaching employee of B.N. Mandal University who was transferred from University to a constituent college. In the said case, the Court held that the University and constituent college have no combined cadre. So far as the case of Bacchha Prasad, (supra) is concerned, the petitioners of the said case were working in the Post Graduate Department of the University, whereas the contesting respondents were working in the University Office. When the question of joint seniority cropped up, the learned Single judge having noticed University's Notification dated 11th January, 1991 and corrigendum dated 13th February, 1991, admitted that the University Office and Post Graduate Departments have a combined Cadre. Thereby, I find no conflict between the case of Manan Singh, (supra) and Bacchha Prasad and Ors., (supra), both of which relate to two different Cadres.
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.
30. In view of the findings recorded above, it is not necessary to discuss and decide the other question as was raised by the petitioner that the order of transfer is punitive, in nature.
31. In the result, the writ petition succeeds. The Notification, as contained in Memo No. VBU/Esstt/R/434/801/03, dated 24th May, 2003 is set aside. The petitioner stands transferred back to his parent cadre post of 'Accountant' in his parent college i.e. Bokaro Steel City College, Bokaro. On rejoining, the respondents will accept his joining in the said Bokaro Steel City College, Bokaro, within one week from the date of his joining.
32. The writ petition is allowed with the aforesaid observations and directions. However, there shall be no order, as to costs.
N.N. Tiwari, J.
33. I agree.