AKSHAYA KUMAR BEURA Vs. DIRECTOR HIGHER EDUCATION

JUDGEMENT

(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 ;

(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.) 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 and 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 :