ANJAN KUMAR DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner who was serving as a Lecturer in the Department of Zoology in Municipal College, Rourkela having been transferred as a Lecturer to Kuchinda College, by order dated 17 -8 -1991, annexed as Annexure -8, has approached this Court for quashing the said order, inter alia, on the ground that the irmpognad transfer contravenes the provisions contained in the proviso to Sub -section (1) of Sec 10 of the Orissa Education Act and, therefore, the same should be struck down. It is alleged in the writ application that the employees of the Rourkela Municipal College are getting additional benefits pursuant to an agreement between the employees and the authorities of the Rourkela Municipality and by the impugned order of transfer, the petitioner will be deprived of such benefits.

(2.) A counter affidavit has been filed on behalf of opp. parties . 4 and 5 stating therein that there is no difference so far as the pay scale is concerned between the employees of Rourkela Municipal College and the employees of Kuchinda College. The petitioner has been given the pay scale of Rs. 2,200 -4000/ - - It is further stated tint in accordance with Section 10 -C of the Orissa Education Act a common cadre has been constituted in respect of Lecturers of Aided Educational Institutions and the Rourkela Municipal College and Kuchinda College both being aided educational institutions, the Lecturers of Rourkeia Municipal College are borne on the constituted Common Cadre, in accordance with Sub -section (6) of Section 10 -C, employees belonging to a Common Cadre could be transferred from one institution to another by the prescribed authority in the prescribed manner. in that view of the matter, the petitioner having served in Rourkela for a pretty long period has rightly been transferred to College in Kuchinda. A rejoinder affidavit has been filed by the petitioner indicating therein that the terms and conditions of service at Rourkela Municipal College were much more favourable than the terms and conditions of service of the employees in Kunchinda College.

(3.) FROM the averments made in the writ application as well as the everments made in the the counter affidavits of the opposite parties, it is crystal clear that Rourkala Municipal College and Kuchinda College, both are non -Government aided colleges and the scale of pay of Lecturers in both the Colleges is the same, A Common Cadre of Lecturers of all aided non -Government Colleges has been constituted and petitioner's name finds place in the said Common Cadre. The Orissa Aided Educational Institutions Employees (Common Cadre and Inter -Transferability) Rules, 1979 (hereinafter referred to as the 'Transferability Rules') provide for transfer of Lecturers from one non -Government aided college to another. The petitioner has been serving in Municipal College, Rourkela, for a pretty long period, This Court has already held the Transferability Rules to be constitutional In the aforesaid premises, we find no infirmity with the impugned order of transfer. 6. Though persons borne on the Common Cadre could be transferred from one institution to another by the prescribed authority in prescribed manner in accordance with the Transferability Rules and consequently we do not find any infirmity with the same, but in view of the proviso to Sub -section (1) of Section 10 of the Orissa Education Act, the terms and conditions of service of a teacher on the date of the costitution of the Common Cadre shall not be in any way less favourable than the terms and conditions which were applicable to them immediately prior to such constitution. In other words, if the petitioner had been drawing any higher emoluments while continuing to discharge his duties as a Lecturer in Rourkela Municipal College prior to the constitution of the common cadre, then he would be entitled to the same. Admittedly, the pay scale of Lecturers of all non -Government aided Colleges is the same. But Mr. Das for the petitioner contends that in Rourkela Municipal College, the petitioner had been given some additional remuneration pursuant to some agreement between the employees and the management. If the petitioner had, in fact, been getting any additional remuneration prior to the constitution of the Common Cadre, then that cannot be taken away after the constitution of the Common Cadre and he will be entitled to those benefits even after transfer in Kuchinda College. On the existing meterials on record, it is difficult for us to come to a conclusion as to whether the petitioner was enjoying any higher emoluments in Rourkela Municipal College on the date of constitution of the Common Cadre. In that view of the matter, so far as this relief is concerned, we would observe that the Director of Higher Education may examine this question on the basis of the records of the Rourkela Municipal College and if he finds that the petitioner was getting any higher enroluments on the date of the constitution of the Common Cadre by which he was brought into the Common Cadre, then he should take steps by ordering that the petitioner would receive the same in Kuchinda College. But that does not affect the right of the prescribed authority to transfer, nor does it vitiate the order of transfer of the petitioner from Rourkela to Kuchinda. We accordingly hold that the order of transfer is valid and justified and cannot be interfered with by this Court in this proceeding. 6. The writ application accordingly fails. Subject to the observations made in this judgment, the writ application is dismissed. The interim order stands vacated. The petitioner should join forthwith in Kuchinda College if the post to which he had been transferred is stilt lying vacant. In the event it is not vacant, it is open for the prescribed authority to transfer the petitioner to some other college. I agree.