The main legal point established is that the transfer of a non-teaching employee must be within the cadre, and allegations against the employee must be on administrative grounds rather than punitive in nature.

S.J.Mukhopadhaya, J.

1. The petitioner, a non-teaching employee holding Class-ll (Section Officer) post under Respondent B.N. Mandal University, has been transferred by impugned order dated 4th January, 2000 from D.S. College, Katihar to H.S. College, Kishanganj.

2. The petitioner has mainly raised the question of jurisdiction of Vice Chancellor in the matter of transfer of a non-teaching employee from one constituent college to another constituent college.

3. It is not in dispute that the Colleges, in question, i.e. the College in which the petitioner was earlier working and the College in which he has been transferred, both the Colleges have been taken over and made constituent Colleges under the then Bihar University (Now known as B.R.A. Bihar University),muzaffarpur. Since end of the year 1992, it ha I been carved out and placed under newly established B.N. Mandal University.

4. According to the petitioner, the cadre of non-teaching employees of constituent colleges is separate not a combined cadre, so no notification constituting a combined cadre has been issued. However, the Respondents have disputed the aforesaid fact.

5. In the counter affidavit, the University has taken plea that the Vice Chancellor has power to transfer in terms with the guidelines approved by the Chancellor, vide letter No. 269/G.5. (I) dated 22nd July, 1982, wherein he has been delegated with power to transfer on administrative ground. However, neither copy of the said letter is enclosed nor it made clear as to whether the same to lates to non-teaching Class-Ill employee, including section officer or not.

6. It is a settled law that the transfer can be made only within cadre. No person can be forced to join in Ex-cadre post without deputation.

7. In the counter affidavit, it pleaded that both the Colleges are constituent units of the University, but plea taken by the Universitys counsel that it is a joint cadre. This stand cannot be accepted in view of specific statement made at Paragraph No.5 to the counter affidavit, wherein the Respondents University itself have stated that "there is no cadre amongst the employees of the University appointed and working on the same post". The cadre is a strength of service or part thereof. It is a settled law that a cadre is required to be constituted specifically by an instrument. In absence of any order/rule, a combined cadre cannot be presumed.

8. In a case of Rajniti Prasad vs. Chancellor and ors. (C.W.J.C. No. 2783/97), this Court by its order and judgment dated 11th September, 1997, held that the non-teaching employees of constituent Colleges have no joint cadre with the University. Similar view was taken in the case of Rajendra Nath Bhuwan vs. B.N. Mandal University and ors. (C.W.J.C. No. 7953/97), disposed of on 9th January, 1998, wherein the Court held that Vice Chancellor and University have no jurisdiction to transfer any Class-Ill employee from one College to another College and/or under the University. Similar view has been also taken in the earlier case of Ram Subhak Singh vs. B.R.A. Bihar University (C.W.J.C. No. 4486/93), disposed of on 30th September, 1994.

9. In view of aforesaid decision, I hold that the impugned order dated 4th January, 2000 as illegal, the Vice Chancellor having no jurisdiction to transfer the petitioner from one constituent College to another.

10. This apart, from Paragraph No. 3 of the counter afficlavit, I find that the petitioner has been transferred on the charges of mis-conduct, indiscipline, disobedience, misbehaviour, insubordination, dereliction of duty; illegal and unauthorised absence from duty etc., which is punitive in nature and cannot be termed as administrative ground. If there are lot of allegations against the petitioner, then the authorities should have completed the departmental proceedings, as stated to have been started earlier against the petitioner, for which he was suspended, while the College was under the jurisdiction of the B.R.A. Bihar Un