Dr. Ashok Kumar Yadav vs Vice Chancellor and Others

K. Kannan, J.—The petitioner, who was working as a Senior Scientist in the Scheme C(a) Agro-3 Plan (Agri) in the Department of Agronomy, Hisar, challenges the order issued on 5.12.2011 transferring the petitioner to Scheme C(b) RSK-18 ICAR at Uchani, Karnal. The order of transfer, according to the petitioner, is not on grounds of administrative exigency but on account of bias against the petitioner and to accommodate favourably the 4th respondent-R.K. Pannu, who was a close relative of the Vice Chancellor-1st respondent. The petitioner has set out the credentials in the field of research that he has had and his doctorate having been secured in U.K. in Agronomy and made the Director of RDS Seed Farm on 1.9.2008. The petitioner would contend that he had been promoted as Class 1 officer in the Department of Agronomy in February, 1995, further promoted as a Professor in February, 2003. The 4th respondent-R.K. Pannu also joined the Department of Agronomy as a Junior Scientist in July, 1983 and promoted as Professor in the Department in July, 2004. In terms of his entry as a Junior Scientist as well as in the posting as a Senior Scientist, the 4th respondent was junior to the petitioner. During his posting as a Senior Scientist, the petitioner had been assigned the charge of Director, RDS Seed Farm on 1.9.2008 and thanks to his stewardship, the farm which was running at loss, has turned the corner. The petitioner had been relieved, however, from the charge of the Seed Farm by Sh. RPS Kharab on 2.4.2011 by virtue of the fact that the said person was a close relative of Vice Chancellor. The harassment to the petitioner could also been seen by the fact during the absence of Head of the Department, the practice have always been to assign the duty to the senior most Professor/Scientist with the Department as indeed provided for under Sub-clause (2) of the Statutes. This practice of assigning the Head of the Department to senior most Professor could be evident on endorsement recorded by the Registrar on 21.11.1998. This post was denied to the petitioner for extraneous considerations. In violation of usual practice, the 4th respondent, who was junior to the petitioner had been nominated as the alternative Head of the Department and as soon as the petitioner came to know about it, he had made a representation on 29.6.2011 pointing out to the practice and staking his claim. The petitioner approached to them by means of representation setting out the details of past practice when one R.S. Malik had been the Scheme Incharge, who was the senior most Scientist. Generally, DAC is constituted for guiding the Head of the Department on all aspects of academic activity but this has been discontinued in the Department of Agronomy. When the petitioner was, therefore, communicating the Vice Chancellor about the injustice caused to him by not giving to him the responsibility of alternative HOD, the 1st respondent has been infuriated to issue the impugned order of transfer.

The order of transfer itself had not been communicated to him and the manner in which it had been passed would itself show that it was biased and to spite the representation which he has been making for not assigning to him the responsibility of HoD. The petitioner will have the following objections:--

(i) There is no post of a Senior Scientist in ICAR, Uchani and there is only a post of Assistant Scientist to which post he has been now transferred.

(ii) The petitioner has been transferred from the Scheme C(a) Agro-3-Plan (Agri) run by the Department of Agronomy to a different Scheme called C(b) RSK-18, Uchani Karnal by ICAR.

(iii) The transfer is motivated to accommodate the 4th respondent, who was admittedly junior to the petitioner to higher responsibility of the alternate HoD, which is against the prevalent practice.

(iv) The position as Senior Scientist in the Scheme in C(a) Agro-3-Plan is essentially a research assignment in which the petitioner is adept while the respondent is from the academic stream and has done very little research.

(v) The order of transfer has been passed at the time when the petitioner was pre-occupied with some personal work for arranging the marriage of his daughter and it was issued at that time to cause harassment to him.

To the petitioner''s claim that Dr. RPS Kharab was closely related to the Vice Chancellor and therefore, he had been posted as Director of the Seed Farm in the place of the petitioner, the respondent would contend that there is no sanctioned post of Director, RDS Seed Farm and only Teachers and Professors of equivalent rank are assigned the charge of RDS Seed Farm and designated as the Director. The petitioner had been officiating as a Director, RDS Farm at a time when there was no prescribed procedure for assigning the charge but now the procedure has been prescribed for assigning the charge to various positions including the Director, RDS, Farm. As per the prescribed procedure, the position of Director, RDS Farm was notified within the University and all Professors/equivalent of Agricultural stream who were eligible, were invited to apply for the post and four persons by name K.K. Dahiya, RPS Kharab, R.S. Kadian and P.S. Sehrawat had applied for the same. Dr. RPS Kharab was recommended by a Committee headed by the Director of Research and the order was ultimately issued by the Vice Chancellor approving the recommendation of the Committee. The petitioner had not even applied for the post and it is, therefore, false to contend that there was any motivation for the appointment of Dr. Kharab.

These contentions raised by the petitioner are again contested through a replication. The petitioner would contend that the University downgraded the post of the Director occupied by the petitioner in Seed Farm as Chief Scientist-cum-Head. Five other positions were also redesignated from Director to Chief Scientist-cum-Head at the same time. Out of these six positions as Chief Scientist-cum-Head, only the post of RDS Seed Farm had been filled up by the appointment of Dr. RPS Kharab. After the appointment of Dr. Kharab as Chief Scientist-cum-Head, the Vice Chancellor again changed the designation as Director-cum-Scientist-cum-Head. This downgrading was motivated and redesignation done after appointment as a Director was so manipulated only to favour Dr. Kharab to exclude the petitioner. In my view, this does not really answer the fundamental issue that when a procedure had been prescribed for appointment to a particular post in the Seed Farm and a Committee had been constituted to select the Chief Scientist-cum-Head and the petitioner himself had not applied for the same, he is not entitled to make a complaint that he had not been appointed and Dr. Kharab had been appointed. I will also have no cause to suspect that there was any deliberate manipulation to accommodate Dr. Kharab since a Committee had been appointed and the appointment was ultimately approved by the Vice Chancellor only after the recommendation of the Committee. If the petitioner himself would admit that even apart from RDS Farm, there were five other posts, which had been designated as Chief Scientist-cum-Head, I cannot accept that the post was downgraded and again redesignated as Director, Seed Farm to keep out the petitioner. All this discussion is only to exclude the possibility of any bias for the 1st respondent to make the impugned order. I will conclude that there was no such bias.

The other aspect, which is contended by the petitioner as the cause for the transfer was that the 4th respondent, who was a junior, had been posted as alternate HOD and when actually the petitioner was in the Department of Agronomy, the petitioner''s objection to the posting of the 4th respondent was seen as the irritant for the Vice Chancellor to pass the order. This action is cited by the petitioner as prevailing on the 1st respondent''s consideration for a transfer which if established to show that there was a biased approach to the petitioner. As regards the contention with reference to the posting of the 4th respondent as the alternative HOD, the respondent would refer to Clause 4(2) of Chapter IV of the University Statutes and contend that since the petitioner was holding the additional charge as Director, RDS Seed Farm at the time, it was decided that the 4th respondent must be considered for being posted as the alternative HOD. The rule itself does not specifically state any where that only the senior-most Professor could have been considered for the HOD''s post. Where there is enough material to show that at all previous times, the alternate HOD was invariably offered to the senior-most Professor and if it was not offered to the petitioner at the time when there was a need for filling up the post, it is perhaps the justifiable grievance of the petitioner. The Statutes by the strict letter did not allow for a right to be posted as alternative HOD, which by the very nature of things would be only a temporary officiation. In view of the explanation given by the respondent that the petitioner was occupying an additional post of the Director of RDS Farm and therefore, it was decided not to burden him I would hold as a sufficient explanation and I would not treat this as so serious a grievance that the Vice Chancellor punish him by a transfer on this account.

The most substantial objection to the contention is only whether a transfer to the post in RRS was impermissible or it amounted to any punishment. The petitioner''s grounds of challenge had already been elicited above and amongst them the fundamental objection is that there was no post of Senior Scientist in the transferee post and the existing post was only of an Assistant Scientist and the similar post in the Department was being retained as vacant post only to enable the transferee department to claim the difference in pay. Joining issues on the claim by the petitioner that the petitioner, who was a Senior Scientist could not have been transferred to RRS in a vacant post meant for Assistant Scientist, it is contended by the respondent that the petitioner himself was holding the post of an Assistant Scientist in the Department of Agronomy but the post was upgraded as a Senior Scientist as a personal measure to him after he got the promotion under the Career Advancement Scheme. As per the said scheme, a teacher gets promotion in his own post which is upgraded as a personal measure to him. The claim by the petitioner, therefore, that he was holding a Senior Scientist''s post substantially is factually incorrect. Scheme C(b) RSK-18, which is sponsored by ICAR, which is the funding agency does not allow for upgradation of post in transfer cases and the lien of the petitioner had been retained in the said Scheme Agro-3-Plan (Agri) for the purpose of drawing difference in pay in accordance with the decision taken by the management. This was not a solitary case and the University had a number of promotees had been working in ICAR funding scheme where a person would continue to enjoy the designation and status as a Senior Scientist and would also draw the salary and other benefits which he was drawing prior to the transfer. The petitioner cannot, therefore, complain that there was any harassment or loss of post or lowering of his designation.

As regards the petitioner''s contention in the writ petition that the petitioner had not been even informed about the transfer and that he came to know through some one else, it is explained by the respondent by contending that the petitioner was sought to be served with the order on 5.11.2011 and relieved of his duty on 6.12.2011 to enable him to join at RRS, Uchani Karnal. He had gone on casual leave without receiving the relieving order which was sought to be delivered to him on 12.12.2011 by a messenger, who had gone to his residence at 9/13, Old Campus. Both the petitioner and his wife refused to receive the envelop. It is stated that the messenger again visited the house but he was not available and his wife also refused to receive the same. This aspect has been refuted by the petitioner but I am not prepared to go into it, for it is really not material for our consideration, for the order of transfer stares at the face and the petitioner has had full opportunity to explain the alleged untenability of the order from his perspective.

The respondents have also attempted to explain that no victimization was made by transferring the petitioner to RRS, Uchani. It is stated that the Head of the Department, Agronomy submitted a proposal on 2.12.2011 that the verities of Maize developed at RRS, Uchani had gained importance at national level and was leading the country in the research. Several organizations have signed MoU with the University for enhancing their area and productivity. To harvest the potential of a newly developed product as well as developing cultivators of Maize, the standardization and development of agronomical practice were most important. Keeping in view of the importance of the Maize crop for developing agronomy practices, the post of Assistant Scientist, Agronomy, which was lying vacant was required to be immediately filled up. The attempt of the respondent was, therefore, to show that the petitioner was really being accommodated recognizing his merit in research and the importance of the contribution that he could make at the new place of posting. This contention has been refuted by the petitioner.

In the ultimate analysis, the issue is one of a denial of the post of Head of the Department and a transfer made to an employee to another place in a post, which was previously handled by an Assistant Engineer but having regard to the petitioner''s own status he was accommodated in the new post by upgrading the post and protecting his pay. A challenge to a transfer could be made only if the Rules did not permit or the transfer itself was a manner of punishment. Any transfer involves uprooting from a place and it may not be comfortable in all situations. The fact of the matter, however, is that transfer is a necessary incident of service and the petitioner cannot challenge the same unless he had right to a particular post which was denied or when it was mala fide. The post of Head of the Department itself is not a promotion post. It is only a manner of officiation for administrative purposes. I have already held that there is no victimization. The petitioner cannot, therefore, complain that any of his legal rights is infringed. The challenge to the impugned order cannot, therefore, be sustained and I dismiss the writ petition.