DR.SURESH PRASAD SINGH v. THE MAGADH UNIVERSITY , Bodh-Gaya through its Registrar & Ors.

The validity of the Act 16/08 was challenged by the petitioners and others by filing C.W.J.C. No. 19296 of 2008 (Dr. Ram Naresh Singh & Others Vs The state of Bihar & Ors). First prayer of the petitioners was to declare Section 4 & 6 of the Bihar Act, 16/08 as ultra vires. Second prayer was to quash Section 26(6((iv) which makes provision of mandatory transfer of principals after completing five years in one college as principal. Other prayer was to restrain the respondents from acting in pursuance of the amended provisions as it is in contradiction of existing statute for transfer and the guidelines of the University Grant Commission on the issue of transfer. The Division Bench after considering the pleadings of the parties and submissions made by the counsels vide its order dated 17th November, 2008 was pleased to hold that the 4 transfer orders were not inconsistent with the statute 39 & also that there was no merit in challenging the constitutional validity of Section 4 & 6 of the Bihar State Universities Act, 2008. By order dated 19th November, 2008, petitioners were permitted to withdraw the writ application. The interim order of stay was discharged. However, the petitioners were given liberty to challenge their individual transfer orders as the individual transfer orders were not brought on record by the petitioners. This liberty was given to the petitioners, in case of any infirmity, illegality in their individual transfer orders. So far the legality of the amended provision relating to mandatory transfer order is concerned; it was held that it is not inconsistent with the statute 39 of Bihar State Universities Act, 1976 as well as the guidelines in this regard. Grounds which have been taken by the petitioners in all these writ applications in order to quash transfer orders as well as relieving orders are:- (i) Transfer order is against the guidelines of the U.G.C.; (ii) Transfer orders are bad and punitive as the petitioners have been transferred from graded college to ungraded college ; (iii) Amended provisions of section 26(6)(iv) of Bihar State Universities Act is prospective in nature, made effective from 23.4.2008 i.e. the date of publication of Notification, as 5 such, five years period in one college as principal will be counted with effect from 23.4.2008; (iv) Amended provisions of Section 26(6)(iv) of Bihar State Universities Act is discriminatory as it is silent regarding Professor-in-charge of the college when position of principal and Professor-in-charge is same with respect to nature of duty and status; (v) Transfer orders are against academic interest of the colleges as some of the projects are incomplete which have been started with the initiative of the petitioners as principal (vi) Some of the petitioners have also taken this ground that they are going to retire within one year, one and a half year or two years. (vii) The transfer orders are against Government’s own policy of choice posting at the fag end of the career. (viii) Petitioners on being transferred from post graduate college to under graduate college, will suffer financial loss on account of the Pay Revision as per recommendation of the Pay Review Committee i.e. Chadha Committee’s report. Counter affidavit has been filed on behalf of the Magadh University in three writ applications and so far other two are concerned, it has been submitted by the counsel that statement made in the counter affidavit of these three writ applications will equally be applicable to other two cases. In the 6 counter affidavit, the first objection which has been raised by the university is that almost all law points raised by the petitioners in the present writ applications, were part of the law point raised and argued in the writ petition challenging validity of Act, 16 of 2008 bringing amendments in the Bihar State Universities Act, 1976. The Division Bench after hearing the parties was pleased to hold that transfer orders were not inconsistent with the Statute 39 and also that there was no merit in challenging the constitutional validity of sections 4 & 6 of Bihar State Universities (Amendment) Act, 2008. Since the law points have already been decided and settled by the Division Bench, now it is not open to the petitioners to re-open the same points in the present writ applications. The Division Bench had given liberty to the petitioners only to challenge their individual transfer orders, in case there is any infirmity and illegality apparent in the order. Since the petitioners have not been able to show any apparent infirmity or illegality in the transfer orders issued against them. Now they cannot raise same points which have already been decided by the Division Bench. I find force in contention of the counsel appearing for the university. The validity of Sections 4 & 6 of the Bihar State Universities Act has been upheld by the Division Bench. It has also been decided that transfer orders are not inconsistent with Statute 39. In that view, the grounds taken by the petitioners challenging their individual order that it is violative of section 7 10(14) of the Bihar State Universities Act, 1976 as well as Statute 39, is almost like re-opening the issue which is not permissible. The petitioners cannot be allowed to re-open the issue. The transfer orders cannot be held to have been issued in violation of section 10(14) of the Bihar State Universities Act, 1976 as well as of Statute 39 only ground left open for challenging the validity of the transfer orders is whether section 26(6)(iv) is Retrospective or prospective, as this point was not raised and considered by the Division Bench. Main emphasis of the counsels appearing for the petitioners is on the prospectivity of the Amended section 26(6)(iv) of 2008 Act. Counsels for the petitioners have submitted that there is no rule of construction which is more established than this --- that retrospective operation cannot be given to a statute, if it will impair an existing right or obligation of the parties. It is well settled that every statute or Statutory Rule is prospective unless expressly or by necessary implication, have been made retrospective in effect. If the language of the amended Act has not made it expressly retrospective, then there can be no other interpretation than that it is perspective. Amended Act came into force from the date of its Notification i.e. 23rd April, 2008. Section 2 of the Amended Act, 2008 provides that it shall come into force at once. Section 26(6)(iv) reads: 26(6)(iv) :- “The principal shall hold office for a 8 maximum period of five years in one college.” Since the Act itself has come into force on 23rd April, 2008 and the provisions under the Act has not been made retrospective, five years period as provided under 26(6)(iv) will be counted from the date of Notification. In this view, the transfer of the petitioners is in violation of Section 26(6)(iv) of the Amended Act, 2008. Counsel for the petitioners in support of their contention , have placed reliance on decisions reported in 1999(3) PLJR S.C. 197, 1989 PLJR 280, AIR 1979 S.C. 592 & AIR 1978 S.C. 851. Counsel appearing for the University on the other hand has submitted that it is an elementary rule of the statute that it should be construed in the sense within the real intention of the legislator. The construction of statute should be more in harmony with the intention, where the alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system, which the statute purports to be regulating. The intention of the legislator in introducing Sub-section IV, Section 26(6) of the Act, was to improve the academic culture of the colleges in different universities. Principal of a particular college, who is more experienced and has shown intensive interest in improving the academic environment of the college, under whose guidance, the college in question has been upgraded, benefit of his experience and efficiency is required to be utilized for improving 9 other colleges. Simultaneously, if continuation of a principal at one place adversely affects the academic environment of that college; he should be transferred to other places. Transfer orders issued in favour of the petitioners, since are not going to affect their career, no ground is available to them to pray for quashing of transfer orders. It is a fact that service of a teacher, principal as well as other employees of an university is transferable u/S 10(14) of the Bihar Universities Act. Intention of the legislator was to make the provisions of mandatory transfer under the amended Act effective at once, it cannot be construed that counting of five years period of any principal in a college will start from the date of Notification. The language is that the principal shall hold office for a maximum period of five years in one college. Only requirement for issuing transfer order is completion of five years. Language of the amended provision is clear enough that any one who has completed five years in a college as Principal, will not remain in that college any more. Counting of five years period will start from which date, is not relevant. Five years period in a college is only relevant. The amended provision will be applicable in case of all such Principals who have for five years remained in one college as Principal. I am completely in agreement with the submission of the counsel appearing for the university that if statute is passed for the purpose of protecting the public interest, it will be 10 allowed to operate even retrospectively, although by such operation, it will deprive some person or persons of a vested right. The provision under Section 26(6)(iv) of the amended Act, 2008, in my view is neither retrospective or prospective but retroactive. In that view, the impugned orders of transfers are not arbitrary, illegal or in violation of the provisions u/S 26(6)(iv) of amended Act, 2008. Further submission of the petitioners’ counsels is that Section 2(v) of the Bihar State Universities Act, 1976 defines teachers which include principals as well. Section 10(14) of the Bihar State Universities Act, 1976 mandates that the Vice-Chancellor will exercise the power to transfer in accordance with the approved guidelines issued by Chancellor. The statute No. 39 provides guidelines for transfer of teachers and principals which have been approved by the Chancellor. The said statute stipulates that transfer can be affected on three grounds: (a) academic grounds (b) compassionate grounds and (c) administrative grounds. Statute 39 further provides that generally all transfers should be made in academic interest of the university i.e. for ensuring better teaching, research and other academic activities. The present transfer orders are completely in disregard of the academic interest of the university as it would adversely affect the teaching, ongoing research and other activities of the colleges in question where the petitioners were posted. While issuing 11 the transfer orders, even the requirement of the institution and relative qualification and merit of the teachers have not been considered. More qualified and senior teachers, which according to statute 39, should be posted in relatively more important colleges from the point of view of teaching and other facilities for any institution. Contrary to it, they have been transferred to grade B college from grade-A college against the academic interest. I find no force in this contention because the transfer orders have not been issued on academic grounds as provided under statute 39. It is also not a transfer on purely administrative reasons because such transfer orders can be passed when disciplinary cases are pending against the teachers to be transferred for maintaining better academic discipline and atmosphere. The transfer orders in favour of the petitioners have been issued under the amended provision u/S 26(6)(iv) of the amended Act, 2008 because the petitioners have remained as principal in the same college for five years. In this circumstance, the transfer orders cannot be held to be illegal on this count that it is in the teeth of section 10(14) of the Bihar State Universities Act as well as section 39 of the statute. This has also been submitted by the petitioners counsels that the Pay Review Committee properly known as Chadha Committee has submitted its report and has made recommendations about the various aspects of the revision, i.e. 12 Pay scale and allowances etc of teachers and others. The recommendation of the Pay Review Committee has been accepted by the U.G.C. and placed before the Central Government for approval and implementation. As per the proposed scale of pay, a teacher posted in post graduate college, has been recommended higher pay scale other than the teacher who is posted in under graduate college. The petitioners on account of the impugned orders have been transferred from post graduate college to under graduate college and they will certainly suffer monetary loss as per the recommendation of the Pay Review Committee. What I find that till now, the Chadha Committee’s report has not been adopted and accepted by the state government. The state government if adopts and accepts the recommendation of the Pay Review Committee, then the question will arise, from which date, it will come into force. At present, no cause of action has arisen to the petitioners and they will not suffer loss of salary unless it is implemented. When the cause of action will arise to the petitioners, they can move before the proper forum for redressal of their grievance. One more ground taken by the petitioners is that some of them are going to retire within a period of one year, one and a half years or two years. As per policy decision of the Government, in the fag end of the career, an employee should be given posting of his choice. So far the policy of the 13 Government applicable in case of employees is concerned, in case of teachers/employees of an university has no application as they are governed by the Universities Act and rules framed there under. There is no such provision in State Universities Act, applicable to the teachers/non teaching staff of university. This submission for assailing the transfer orders has no force. Petitioners have not been able to show that transfer orders are illegal, arbitrary and without jurisdiction. Accordingly, all writ applications are dismissed. AKV/ ( Mridula Mishra, J )