1. Ranchi University, Ranchi through its Registrar; 2. Vice chancellor, Ranchi University, Ranchi; 3 v. Muddha Tiwari, aged about 47 years, Wife of
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 62 of 2024 1. Ranchi University, Ranchi through its Registrar; 2. Vice chancellor, Ranchi University, Ranchi; 3. Registrar, Ranchi University, Ranchi All at Shahid Chowk, P.O – GPO, PS – Kotwali, Dist. Ranchi, Jharkhand -834001 … ... … Appellants Versus Muddha Tiwari, aged about 47 years, Wife of Shri Pankaj Dwivedi, Resident of A-102, Divya Residency, Raod No. 09, Latma Road, Vikas Nagar, Singh More, PO & PS –Hatia, Dist. – Ranchi, Jharkhand-834003. … ... … Respondent With L.P.A. No. 65 of 2024 1. Ranchi University, Ranchi through its Registrar; 2. Vice chancellor, Ranchi University, Ranchi; 3. Registrar, Ranchi University, Ranchi All at Shahid Chowk, P.O – GPO, PS – Kotwali, Dist. Ranchi, Jharkhand -834001 …. …… …. Appellants Versus 1. Ambrish Kumar, aged about 51 years, Son of Shri Anand Mahto, Resident of SNEH, 856/1, Old H.B. Road, Kokar, PO –Kokar, PS –Sadar, Dist.- Ranchi, Jharkhand- 834001 2. Ranchi Women’s College, Ranchi, Circular Road, PO –Ranchi, PS –Lalpur, Dist. –Ranchi -834001; through its Principal. 3. Principal, Ranchi Women’s College, Ranchi, Circular Road, PO –Ranchi, PS – Lalpur, Dist. –Ranchi-834001. 4. Doranda College, Doranda, Hinoo Main Road, Opposite Shree Krishna Park, Near A.G. More, Doranda, PO & PS –Doranda, Dist. –Ranchi; through its Principal; 5. Principal, Doranda College, Doranda, Hinoo Main Road, Opposite Shree Krishna Park, Near A.G. More, Doranda, PO & PS –Doranda, Dist. –Ranchi. ….. …. … … Respondents --------- CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN KUMAR RAI For the Appellants For the Respondent s --------- : Mr. Anoop Kumar Mehta, Advocate : Mr. Amit Kumar Sinha, Advocate : Mr. Rishabh Raj, Advocate : Mr. Harshit Shekhar --------- 06/ Dated: 06.08.2024 Per Sujit Narayan Prasad, A.C.J. : 1. Since, both the aforesaid letters patent appeal arise out of common impugned order and therefore they have been heard together and shall 1 be disposed of by this common order. 2. Both these appeals have been filed under clause 10 of letters patent against the common order dated 31.10.2023 passed in W.P. (S) No. 3766 of 2023 along with W.P. (S) No. 3494 of 2023 whereby and whereunder the order of transfer dated 04.07.2023 issued by the Vice Chancellor, Ranchi University, Ranchi has been set aside. Factual Matrix 3. The brief facts of the case as per the pleadings made in the writ petitions, which requires to be enumerated herein, read as under: 4. The Writ Petitioner namely Ambrish Kumar (respondent in L.P.A. No. 65 of 2024) serving on the Class-III Post as Accountant in Ranchi Women’s College, Ranchi was transferred to the Doranda College, Doranda, whereas the Writ Petitioner namely Mugdha Tiwari (respondent in L.P.A. No. 62 of 2024) serving as Head Assistant in Doranda College, Doranda, was transferred to the Ranchi Women’s College, Ranchi by virtue of common transfer order as contained in Memo No.Estt./EC/129/23 dated 04.07.2023 issued by the order of Vice Chancellor, Ranchi University, Ranchi. 5. Both of the respondents/writ petitioners, namely, Ambrish Kumar and
Legal Reasoning
Ms. Mugdha Tiwari have challenged the said common order of transfer dated 04.07.2023 by filing two writ petitions being W.P.(S) No. 3766 of 2023 and W.P.(S) No. 3494 of 2023 respectively. 6. Before the learned writ Court, the writ petitioners has assailed the common order of transfer on the ground that no power has been conferred to the Vice Chancellor to transfer, the non-teaching employees of the universities from one constituent college to another constituent college. 7.
Decision
In support of their arguments, the writ petitioners have also relied upon the judgment rendered by the Division Bench of this Court in the case of Baidyanath Thakur vs. Ranchi University and Others, reported in 2005 SCC online Jharkhand 546 and Ram Ashis Ram vs. Rajendra Agriculture University and Ors, reported in 1993 1 PLJR 89. 8. Per contra the Ranchi University (appellant herein) had taken the 2 ground that the order of transfer was for some administrative reasons and does not in any way prejudice the petitioner(s). The transfer has been effected in the same city between colleges which are at a distance of six Kilometer as Mugdha Tiwari (petitioner) has been transferred from Doranda College, Ranchi to the Women’s College whereas Sri Ambrish Kumar (Petitioner) has been transferred from Women’s College, Ranchi to Doranda College, Ranchi vice-versa. 9. The learned Single Judge on appreciation of the rival submissions while setting aside the common order of transfer dated 04.07.2023 has observed that the exercise of administrative power is not in conformity with the rules and regulations framed for their exercise and in absence of it, the exercise will be non est in the eyes of law. 10. Being aggrieved by the aforesaid order passed by the learned single Judge, the present appeal has been preferred by the Ranchi University. 11. It is evident from the factual aspect that by the common transfer order as contained in Memo No. Estt/EC/129/23 dated 04.07.2023 issued by the Vice-Chancellor, Ranchi University, Ranchi the writ Petitioner (Ambrish Kumar) who was serving on the Class-III Post as Accountant in Ranchi Women’s College, Ranchi was transferred to the Doranda College, Doranda whereas the writ petitioner Mugdha Tiwari (petitioner) who was serving as Head Assistant in Doranda College, Doranda, was transferred to the Ranchi Women’s College, Ranchi. 12. The aforesaid common order of transfer was assailed before this Court by filing two different writ petitions being W.P. (S) No. 3766 of 2023 and W.P. (S) No. 3494 of 2023 wherein ground has been taken by the petitioner that no power has been conferred to the Vice Chancellor to transfer, the non-teaching employees of the universities from one constituent college to another constituent college and due to want of jurisdiction the said common order of transfer is bad in law. 13. However, the respondent university (appellant herein) while responding the contention of the writ petitioner has contended that the order of transfer was for some administrative reasons and does not in any way prejudice the petitioner(s). 3 14. The learned writ Court after appreciating the rival submission has observed that in absence of any provision, the exercise of administrative power is not in conformity with the rules and regulations framed for their exercise and in absence of it, the exercise will be non est in the eyes of law. 15. Hence the instant appeals have been preferred. Argument on behalf of the learned counsel for the appellant: 16. Mr. Anoop Kumar Mehta, learned counsel assisted by Mr. Amit Kumar Sinha, learned counsel appearing for the appellants, in both the appeals, has submitted that the learned Single Judge has not appreciated the factual as also the legal position which is available in the present case, since, herein both the transfers are on administrative side, not causing any prejudice to the both the respondents/writ petitioners. 17. It has been submitted that the issue has been raised that the services of both the petitioners have not been found to be satisfactory which led the Vice Chancellor to pass the common order of transfer. 18. Learned counsel has further submitted that the Learned writ Court has not appreciated the aforesaid aspect of the matter that common order of transfer has been passed for the smooth functioning of the college, i.e. Ranchi Women’s College. 19. It has been submitted that the notices were issued to both the respondents/ writ petitioners and in pursuance to the service of the aforesaid notices, both the respondents/writ petitioners have appeared and are being represented by their counsel, as such, no prejudice caused to both the respondents/writ petitioners. 20. On the basis of the aforesaid reasons, it has been submitted that the order passed by the writ Court may require interference of this Court. Argument on behalf of the learned counsel for the Respondents: 21. It has been argued by Mr. Rishabh Raj, learned counsel appearing for the respondents/writ petitioners that there is no error in the impugned order passed by learned Single Judge, since, whatever may be the reason, the jurisdiction if available to the competent authority, then only for considering the reason of transfer, the decision can be taken. 4 22. It has been contended that the Jharkhand Universities Act, 2000 does not confer power upon the Vice Chancellor to transfer the non-teaching employees working in the constituent college. The reference of the law laid down by the Division Bench of this Court in the case of Baidyanath Thakur (supra) has also been made. 23. The learned counsel based upon the aforesaid submission has submitted that the order passed by the learned Single Judge suffers from no error, hence both the appeals are fit to be dismissed. Analysis 24. We have heard the learned counsel for the parties and gone across the finding recorded by the learned Single Judge in the impugned order. 25. The issue which requires consideration is that if the competent authority having no power to transfer any category of non- teaching employees, then whether on the basis of any reason, such order of transfer can be issued. 26. This Court in order to answer the aforesaid issue first refer the provision of Section 10 of the Jharkhand Universities Act, 2000, wherein the power has been conferred to the Vice Chancellor to transfer the teaching employees working in the one of the other constituent colleges, for the ready reference Section 10 of the Act, 2000 is being referred herein:- “Section 10. Vice-Chancellor.-[(1) No person shall be deemed to be qualified to hold the office of Vice-Chancellor unless such person is, in the opinion of the Chancellor, reputed for his scholarship and academic interest. [Further, it would be desirable that the person has administrative experience either at the government or at the university level. 2[(i) The Selection of Vice-Chancellor should be through proper identification of a panel of 3-5 names by a Search Committee through public notification or nomination or a talent search process or in combination thereof. The members of the above Search Committee shall not be connected in any manner with the University concerned or its colleges. In respect of State Universities, the following shall be the constitution of the Search Committee-a. A nominee of the Chancellor would be the Chairperson of the Committee. 5 b. A nominee of the Chancellor, being an eminent educationist of high repute -members c. An officer representing State Government-members.] 3[2(i) Chancellor shall appoint the Vice-Chancellor out of the panel of names recommended by the Search Committee in consultation with the State Government 4[(ii) The panel recommended by the Search Committee shall be in force for one year to meet out any of the situation of not joining by the person so appointed the first instance, at the vacation of post of Vice-Chancellor on account of death resignation or removal of the Vice-Chancellor under the provision of this Act, with one year and the Chancellor shall appoint the Vice-Chancellor from the said panel consultation with the State Government." 5[[(3) (a) The Vice-Chancellor shall be whole time officer and shall hold off during the pleasure of the Chancellor. [(b) Subject to foregoing provisions of the section the Vice- Chancellor s ordinarily hold office for a term of three years. Provided that the age for applying to the post of Vice-Chancellor shall exceed 65 years. Ongoing of the said term she/he may be reappointed by Chancellor in consultation with the State Government and she/he shall hold office the pleasure of the Chancellor for a term not exceeding three years, or up-to-the of 70 years whichever is earlier. 4) (1) उनको िनयु्ঢ के अ(cid:586) ब(cid:576)ेज और शतं रा৸ सरकार के परामश१ से कुलािधपित अवधाौरत कर७गे।] (ii) "If the person appointed as Vice-Chancellor receives pension from Central or State Govemment or any University or any other source then the receivable amount of pension would be considered to be part of her/his receivable Salary and allowances." (5) The Vice-Chancellor shall be the principal executive and academic officer of the University, the Chairman of the Syndicate and of the Academic Council and shall be entitled to be present and speak at any meeting of any authority or other body of the University and shall in the absence of the Chancellor preside over meetings of the Senate and of any convocation of the University: Provided that the Vice-Chancellor shall not vote in the first 6 instance but shall have and exercise a casting vote in the case of an equality of votes. (6) The Vice-Chancellor shall subject to the provisions of this Act, the Statutes and the Ordinances have power to make appointment to posts within the sanctioned grades and scales of pay and within the sanctioned strength of the ministerial staff and other servants of the University not being teachers and officers of the University and have control and full disciplinary powers over such staff and servants. (7) कुलपित को िसनेट, उसकी सिमितयों एवं उप-सिमितयों, िस(cid:565)ीकेट, उसकी सिमितयों एवं उप-सिमितयों, िव(cid:554)त पौरषद एवं िव(cid:695)िव(cid:552)ालय के अ(cid:586) ঋािधकारों की बैठक बुलाने की श्ঢ होगी एवं वह उन बैठकों का पदेन सभापित होगा तथा अपनी अल(cid:631)ता के कारण िकसी अ(cid:586) अिधकारी को बैठक बुलाने एवं उसका सभापित(cid:533) करने हेतु ঋािधकृत कर सकेगा।] (8) The Vice-Chancellor shall have the powers to visit and inspect the Colleges and buildings, laboratories, workshops and equipments thereof and any other institution associated with the University, and he shall have the right of making an inquiry or causing an inquiry to be made, in like manner in respect of any matter connected with such Colleges and institutions. (9) The Vice-Chancellor shall address the Principal of such College with reference to the result of such inspection or inquiry and, thereupon, it shall be the duty of such Principal to communicate the views of the Vice-Chancellor to the governing body of the College and to report to the Vice-Chancellor such action, if any, taken or proposed to be taken upon the result of such inspection or inquiry. (10) It shall be lawful for the Vice-Chancellor to issue, from time to time, any direction to the Principal of a College in which post- graduate teaching conducted under clause (16) of section 4 and such Principal shall comply with all such directions accordingly. [(11) The Vice-Chancellor shall exercise general control over the educational arrangement of University and shall be responsible for 7 the discipline of the University. It shall be lawful for the Vice- Chancellor to take all steps which are necessary for maintaining the academic standard and administrative discipline of the University.] (12) If at any time, except when the Syndicate or the Academic Council is in session, the Vice-Chancellor is satisfied that an emergency has arisen requiring him to take such immediate action involving the exercise of any power vested in the [Syndicate or Academic Council) by or under this Act, the Vice-Chancellor shall take such action as he deems fit, and shall report the action taken by him to such authority which may either confirm the action so taken or disapprove of it. (13) It shall be the duty of the Vice-Chancellor to see whether the proceeding of the University are carried on in accordance with the provisions of this Act, the Statutes, the Ordinance, the Regulations and the Rules or not and the Vice- Chancellor shall report to the Chancellor every proceeding which is not in conformity with such provisions. For so long as the orders of the Chancellor are not received on the report of the Vice-Chancellor that the proceeding of the University is not in accordance with this Act, the Statutes, the Ordinance, the Regulation and the Rules, the Vice-Chancellor shall have the powers to stay the proceeding reported against. [(14) कुलपित को िव(cid:695)िव(cid:552)ालय (cid:554)ारा घोिषत िकसी िवभाग या महािव(cid:552)ालय के िकसी िशक को कुलािधपित (cid:554)ारा (cid:738)ीकृत माग१ िनद८शक िस(cid:544)ा(cid:566) के अनुसार उस िव(cid:695)िव(cid:552)ालय (cid:554)ारा घोिषत िकसी अ(cid:586) िवभाग या महािव(cid:552)ालय के िकसी समक पद पर (cid:725)ाना(cid:566)ौरत करने की श्ঢ होगी।] [illustration-'equivalent post' means Reader and Principal in the pay-scale of Reader, Professor and Principal in the pay-scale of Professor.] [(15) The Vice-Chancellor shall exercise such other powers and 8 perform such other duties as are conferred or imposed on him by this Act, the Statutes, the Regulations or the Rules.] 1[(16) The Vice-Chancellor shall have overall responsibility in maintaining good academic standard and promoting the efficiency and good order of the University. (17) Save as otherwise provided in the Act, or the Statutes the Vice- Chancellor shall appoint officer (other than the Pro-Vice- Chancellor) with the approval of the Chancellor, and teachers and shall define their duties; (18)The Vice-Chancellor shall have power to take disciplinary action against all employees of the University including officers and teachers of the University; (19) An appeal shall lie to the Chancellor against the order of the Vice-Chancellor imposing the penalty of dismissal, removal from service or reduction in rank. [(20) The Vice-Chancellor shall have the power to transfer the Principal of a constituent college after expiry of a term of four years, but for administrative reasons Vice-Chancellor can transfer Principals, by recording reasons in writing even before the expiry of four year period".) . 27. It appears from the bare perusal of the aforesaid provisions, it appears that no power has been vested upon the Vice Chancellor for transfer of non-teaching employees, as the aforesaid fact has not even been disputed by the learned counsel for the appellants. 28. The learned Writ Court has also based its finding on the judgment which was rendered by this Court in the case of Baidyanath Thakur (supra) wherein, the law has been laid down that the Vice Chancellor has got no power to transfer the non-teaching employees working in the constituent colleges of the Ranchi University, for the ready reference the relevant paragraph of the said judgment is referred herein: - “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 9 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. 29. It is thus evident that the Vice Chancellor is having no jurisdiction said to be conferred under the statute, The question therefore is that when the jurisdiction does not lie with the Vice Chancellor, then how can he take decision of transfer of non-teaching employees from one constituent college to another. 30. It requires to refer herein that the issue with respect to the power to be exercised by High Court under Article 226 of the Constitution of India, in the matter of transfer has already been dealt with by the Hon’ble Apex Court in catena of judgments. 31. Indisputably an order of transfer is an administrative order and there cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with by the High Court sitting under Article 226 of the Constitution of India, save in cases where transfer orders are made in violation of any mandatory statutory rule or inter alia mala fide on the part of the authority is proved. 32. The Hon’ble Apex Court in the case of Shilpi Bose (Mrs) v. State of Bihar, 1991 Supp (2) SCC 659 has categorically observed that the courts should not interfere with a transfer order unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under: “ 4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. ---. “ 33. Similarly, the Hon’ble Apex Court in the case of State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402 has observed that unless the order 10 of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered. 34. Further the Hon’ble Apex Court in the case of Rajendra Singh v. State of U.P., (2009) 15 SCC 178 has reiterated the same view. For ready reference the relevant paragraphs of the aforesaid judgment are being quoted as under: “9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides.---- 10. In N.K. Singh v. Union of India [(1994) 6 SCC 98 : 1994 SCC (L&S) 1304 : (1994) 28 ATC 246] this Court reiterated that: (SCC p. 103, para 6) “6. … the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision….” 35. The Hon’ble Apex Court in the case of Punjab & Sind Bank v. Durgesh Kuwar, (2020) 19 SCC 46 has categorically held that unless an order of transfer is established to be mala fide or contrary to a statutory provision or has been issued by an authority not competent to order transfer, the Court in exercise of judicial review would not be inclined to interfere. 36. It is evident from the aforesaid legal pronouncements as discussed above that one of the grounds where the Court of law is to interfere under the power of judicial review in the matter of transfer, if the said transfer order has been issued contrary to a statutory provision or has been issued by an authority not competent to order such transfer. 37. Now adverting to the factual aspect of the present case, herein, Vice Chancellor has issued the order of transfer of both the respondents/writ petitioners, who is having no jurisdiction as has been held by the Division Bench of this Court in the case of Baidyanath Thakur (supra), therefore, this Court is of the considered view that the common order of transfer will be said to be nullity in the eyes of law due to want 11 of jurisdiction. 38. This Court after having discussed the aforesaid factual as also the legal issues and coming to the order passed by the learned Single Judge has found that the learned Single Judge has, considered the aforesaid aspect of the matter in interfering with the impugned order of transfer. 39. This Court considering the aforesaid discussion based upon the settled proposition of law laid down as absence of statutory provision conferring power to the Vice Chancellor of the university, is of the view that the order which has been passed by the learned Single Judge cannot be said to be suffer from an error. 40. Accordingly, both the appeals i.e. L.P.A. No. 62 of 2024 and L.P.A. No. 65 of 2024 are hereby dismissed. 41. Pending interlocutory order if any, is accordingly disposed of. (Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) AFR Suman/Abhishek 12