All persons appointed to aided colleges as lecturers in the regular manner are borne in the common cadre and hence liable to be transferred.

JUDGMENT :

L. Rath, J. - 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 ;

(1) That the petitioner is not a person belonging to the common cadre of lecturers and hence is not lible to be transferred out of his own college of appointment ;

(2) That the transfer is mala fide in nature since the opp. party No. 4 who has been transferred in his place to Ekamra College had been transferred to Jashipur College on transfer only 45 days back ;

(3) That the transfer has been directed in the middle of the academic session contrary to the Government's guidelines for the same and that his children who are studying in the Central School, Bhubaneswar and are to appear in examinations would suffer; and

(4) Since the petitioner's wife is serving in the Central School as a teacher at Bhubaneswar and the Government's direction is that husband and wife are to be posted together, the transfer ought not to have been directed.

Counter affidavits have been filed by the opposite party Nos. 1 and 3, the Director, Higher Education and the Government of Orissa ; by the opp. party No. 2, the Principal, Ekamra Mahavidyalaya; and by the opp. party No. 4, the lecturer who has been transferred in place of the petitioner. So far as the counter affidavit of the Director and the Government is concerned, it is contended therein that the petitioner is a member of the common-cadre of lecturers which has already been constituted and hence his transfer is legal. It is further stated that the petitioner has been continuing in the Ekamra Mahavidyalaya since 1984 and hence his transfer cannot be called unjustified.

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 le