VIDYA SAGIAR YADAV Vs. CHANCELLOR

JUDGEMENT

(1.) IN this writ application the petitioner has prayed for quashing of the directions issued by the Chancellor of the Uniersities of Bihar communicated to the petitioner vide letter no. 1170/GS(i) dated 4.6.2001 as contained in Annexure -17 whereby and whereunder it has even held that the petitioner had absented himself from University service since the year 1994, his joining report given in Patna University in the year 2001 does not appear to be in accordance with rules, the service of the petitioner as Registrar either in Patna University or in Tilkamanjhi Bhagalpur University had not been confirmed in consequence to which the petitioner does not have any lien on the post of Registrar of the aforesaid two Universities and it has been directed that the petitioner should give his joining on the post of Deputy Registrar in L. N. M. University, Darbhanga provided the petitioner had been regular and substantive incumbent of the said post and had not completed the age of superannuation. The petitioner has also prayed for quashing of notification bearing no. 807 dated 8.5.2001 issued under the signature of the Secretary, Department of Higher Education, Government of Bihar, Patna, as contained in Annexure -14 relieving the petitioner from the post of Director, Higher Education, Bihar and directing him to obtain instructions from the office of the Chancellor regarding the place where he should give his joining and a direction to the Vice Chancellor of Patna University to accept his joining on the post of Registrar, Patna University.

(2.) ACCORDING to the petitioner, he was appointed as Lecturer in Geography under Magadh University on 12.9.1964 and he functioned as such till after proper selection, he was appointed and joined the post of Deputy Registrar in L.N.M. University on 15.6.1973. It appears that the petitioner was thereafter transferred to the post of Controller of Examinations, Ranchi University where he joined on 19.10.1981 and subsequently he was re -transferred to the post of Deputy Registrar -(i) in L.N.Mithila University on 14.7.1985. It appears that an advertisement bearing no. 1/151/USC/90 was issued by the Bihar State Universities (Constituent College) Service Commission, Patna in the year 1990 for appointment to the post of Registrar, Patna University on temporary basis. The petitioner along with others applied for the said appointment and was called for interview on 8.3.1991. By the said Commissions letter no. 17/C dated 18.3.1991 (Annexure -A to the coun - ter -affidavit of respondent no.1) the name of the petitioiner was recommended for the said appointment in pursuance to which by notification dated 20.3.1991 (Annexure -2) the petitioner was appointed as Registrar, Patna joined the said post on 22.3.1991 and continued to function as such till the Chancellor, Universities of Bihar in purported exercise of power vested in him under sections 9 and 16(e) of the Patna University Act as it then stood (i.e. prior to the amendment made by Act 13 of 1995) transferred the petitioner from the post of Registrar, Patna University to Bhagalpur University vide notification dated 24.3.1992 (Annexure -4). Although it has been pleaded by the petitioner that he represented against the said order of transfer to the Chancellor but in obedience to the direction of the Chancellor he joined the post of Registrar, Bhagalpur University on 2.4.1992. Subsequently, by another notification dated 29/ 30.8.1994 issued from the office of the Chancellor (Annexure -5) the Chancellor was pleased to transfer the petitioner from the post of Registrar, Bhagalpur University to the post of Inspector of Colleges (Arts) at Vinoba Bhave University, Hazaribagh. This notification was issued under section 8 of the Bihar State Universities Act. It has further been asserted by the petitioner that he represented against the aforesaid transfer to the Chancellor on 12.9.1994 vide Annexure -6 and thereafter filed reminder/ representation on 21.10.1994. However, in the meantime since the petitioner was appointed as Director Higher Education, Bihar by way of deputation by the State Government under notification no. 696 dated 28.11.1994 (Annexure -7) he joined the said post. It has further been stated on behalf of the petitioner that even thereafter he made repeated requests for hearing in the matter of the representation filed earlier on his behalf. According to the petitioner, since it was provided in the order of appointment of the petitioner on deputation as Director, Higher Education, (Annexure -7) that the condition of his service and deputation would be decided subsequently, the State Government later fixed his service condition vide letter no. 1407 dated 31.8.1995 (Annexure -9) issued under the signature of the Secretary, Higher Education, Government of Bihar which was addressesd to the Accountant -General, Bihar and a copy of the same was also sent to different officials including the petitioner. In the said Government order it has been mentioned that during the course of functioning of the petitioner as Director, Higher Education, Government of Bihar, the petitioner would hold lien of his original post of Registrar, Patna University. By the said letter certain other conditions with respect to salary, allowance leave etc. were also fixed. It has further been asserted in the writ application that the matter of granting lien from Patna University in pursuance to the aforesaid Government letter dated 31.8.1995 was placed in the meeting of the Syndicate of Patna University scheduled to be held on 6.9.1997 vide Agenda item no.3. It has been further stated that though he has not got copy of the decision of the Syndicate meeting of Patna University held on 6.9.1997 but the Syndicate had approved the Government letter in question. It has further been asserted that the Syndicate of the Patna University in its meeting held on 21.3.1997 resolved to credit the contribution received by the petitioner with regard to Provident Fund G.I.S. contribution etc. to the proper accounts of the University. The petitioner has pleaded that since the Patna University is accepting the contributions made by the petitioner towards the said amounts the same shows that the Patna University is treating the petitioner to hold lien on the post of Registrar on which the petitioner was earlier functioning. Later, by one letter dated 11.9.2000 (Annexure -12)it was communicated to the petitioner that the petitioner had remained absent from University service since last five years and nine months without obtaining approval regarding such absence from the concerned University or from the Chancellor. Consequently, the petitioner was directed to return back to his original post by 26.9.2000 failing which it would be presumed that the petitioner was not interested in returning back to University services and also his lien would be terminated. Subsequently by Annexure -14 (notification dated 8.5.2001) the State Government relieved the petitioner from the post of Director, Higher Education for joining University service. In the said notification itself it has been mentioned that the petitioner should obtain directions from the office of the Chancellor regarding the place where he should give joining. However, the petitioner treating himself to be holding the lien of the post of Registrar, Patna University gave his joining before the Vice Chancellor, Patna University on 8.5.2001 itself vide Annexure -15, However, when no notification accepting the joining of the petitioner was issued by the Patna University the petitioner represented in that regard. However, in the meantime, by order as contained in letter dated 4.6.2001 (Annexure -7), the petitioner as noted above, has been directed to join on the post of Deputy Registrar, Lalit Narain Mithila University.

(3.) IT has been vehemently contended on belalf of the petitioner that the post of Registrar of Patna University is a statutory post and is of substantive nature. Petitioner having gone subsequently to Bhagalpur University on the basis of order passesd by the Chancellor the service statute which is applicable to all Universities has to be interpreted in such a manner as to hold that the petitioner became a substantive Registrar as he completed two years as Registrar in Patna University and Bhagaipur University. In any case, the petitioner being a direct recruit to the post of Registrar cannot now be asked to join the post of Deputy Registrar which would amount to reduction of rank of the petitioner without any justifiable basis. On the other hand, the Chancellor of the Universities of Bihar and Patna University have taken a firm stand that the petitioner does not have any lien on the post of Registrar of Patna University specially when this appointment as Registrar in Patna University was of temporary nature and he was transferred as such just after one year from Patna University to Bhagaipur University. It has been contended that as per the provisions of clause 3(3) of the statutes (general conditions of service of employees of the Patna, Bihar, Ranchi, Bhagaipur, Magadh, L.N.M.U. and K.S.D. Sanskrit Universities as approved by the Chancellor on 29.9.1980 vide letter no. B.S.U. 36/805270 -GS(1) dated 18.11.1980) whenever a permanent post in any cadre and pay scale is available for substantive appointment, the claim of a University servant who has been holding a tenure or temporary post for not less than two years and possesses requisite qualifications prescribed for the post and his work is found to be satisfactory, may be considered in the first instance for substantive appointment to that permanent post. It has been submitted that the petitioner not having completed two years of service in Patna University as Registrar, where he was working on temporary basis cannot be said to be holding substantive appointment to the permanent post of Registrar and consequently the petitioner did not acquire any lien on the post of Registrar, Patna University. It has further been submitted that only a University servant of substantive appointment to any permanent post acquires the lien on that post as stipulated in clause -7 of the said statute. So far as the claim of the petitioner regarding making deposits in Patna University towards Provident Fund and G.I.S. contributions is concerned, it has been pointed out that the deposits made by the petitioner had been accepted only because the Registrar, Patna University vide order passed on 4.12.1996 (extract of which has been produced along with the written notes of arguments filed on behalf of Patna University in terms of order dated 28.8.2001 passed in this case) had felt that though the question relating to lien of the petitioner on the post of Registrar, Patna University had not been decided such deposit should be accepted because even if it would be held that the petitioner did not hold lien of the said post, the said amount would be sent to the appropriate place subsequently. It was on the basis i.e. on the basis of the note put up by the Registrar mentioned above that the Syndicate of Patna University in its meeting dated 21.3.1997 resolved to accept deposit of the Provident Fund and other dues of the petitioner in Patna University presently which would be available for being forwarded to the concerned authority at the relevant time. It has further been stated that the syndicates in its meeting held on 21.3.1997 did not take any decision to grant lien to the petitioner from the post of Registrar, Patna University. In the counter - affidavit of the Patna University it has specifically been stated that the contention of the petitioner that the Syndicate of the Patna University had decided to grant lien to the petitioner on the post of Registrar, Patna University in its meeting held on 6.9.1997 is not correct. A copy of the minutes of the meeting of Syndicate, Patna University dated 6.9.1997 has been annexed as Annexure -A to the said counter - affidavit wherein it has been recorded that the question regarding grant of lien to the petitioner should be placed again before the syndicate after taking legal opinion. It has further been stated that the said matter was never placed before Syndicate thereafter. It has been vehemently contended on behalf of the respondens that the petitioner joined the post of Director, Higher Education, Government of Bihar without obtaining leave from anywhere and the State Government letter dated 31.8.1995 (Annexure -9) treating the petitioner to hold a lien on the post of Registrar, Patna University is unauthorised because neither the State Government had jurisdiction to decide the question of lien nor the State Government was competent to unilaterally transfer the services of the petitioner to State Government service from University Service. It has been asserted that there is no order either approving leave to the petitioner to join as Director, Higher Education nor any order approving the joining of the petitioner on the said post issued by any University or the office of the Chancellor. In sum and substance, it has been contended that the petitioner out of his own sweet free will, functioned as Director, Higher Education without seeking and obtaining permission or approval for doing so from any University or the office of the Chancellor and thus the entire period which he spent as Director, Higher Education, was virtually a period of unauthorised absence of the petitioner from University service. A counter -affidavit has also been filed on behalf of the State wherein it has only been contended that no relief has been sought against the State Government and since the petitioner was/ is in University service, the State Government has very little, rather no role to play in the matter of transfer of University personnel.