IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1787 of 2010 THE RAJENDRA AGRICULTURE UNIVERSITY, Bihar, Pusa, Samastipur through its Registrar, Rajendra Agriculture University, Bihar, Pusa, Samastipur 2. The Vice-Chancellor, the Rajendra Agriculture University, Bihar, Pusa, Samastipur 3. The Director (Administration), the Rajendra Agriculture University, Bihar, Pusa, Samastipur …Respondents/Appellants Versus 1. DR.SIYA RAM SINGH, S/o Late Kapileshwar Prasad Singh, resident of Tara Kunj, Nil Kanth Colony, Sector -2, PS Shastri Nagar, district Patna, at present University Professor-cum-Chief Scientist and also Dean, Veterinary and Animal Science, Bihar Veterinary College, Patna ……Petitioner/Respondent 1st set 2. The State of Bihar through Agriculture Production Commissioner, Bihar, Patna ……Respondent/Respondent 2nd set ----------- For the Appellants : Mr. Devendra Prasad Sinha Senior Advocate For the Respondent : Mr. Y V Giri, Senior Advocate 05- 14/1/2011 This appeal under clause 10 of the Letters Patent of the High Court of Judicature at Patna raises a grievance with respect to the judgment dated 22.9.2010, passed by a learned single Judge of this Court in CWJC No. 12781 of 2010 (Dr. Siya Ram Singh v. State of Bihar & Ors.), whereby the office order dated 30.7.2010, issued by the Vice-Chancellor of the Rajendra Agricultural University, transferring respondent no.1 herein (the writ petitioner), from the post of University Professor-cum-Chief Scientist and holding the charge of Dean, Veterinary and Animal 2 Science, Patna, to act as Director (Planning), Rajendra Agricultural University, Pusa, has been set aside. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. We shall go by the description of the parties occurring in the present proceeding. Respondent no.1 was in June 2009 posted as University Professor-cum-Scientist, and was also acting as Dean, Veterinary & Animal Science, Patna. Towards the end of July 2010, the interns of Bihar Veterinary College, one of the constituent colleges of the Rajendra Agricultural University, raised agitation to enhance their internship allowance payable every month to them. It appears that respondent no.1 was made in-charge of a team to negotiate with the interns and tackle the situation, as is evident from the reports dated 22.7.2010 and 23.7.2010 etc., all under the signature of respondent no.1. This was followed by communication dated 24.7.2010, from respondent no.1 to the Vice-Chancellor of the Rajendra Agricultural University, inter alia, stating therein that, in view of the telephonic instruction of the Vice-Chancellor, he (respondent no.1) had stopped functioning as the Dean of the University because he was unsuccessful in having the 3 strike called off. This was followed by the impugned order, whereby he has been transferred from his posting in Patna to the position of Director (Planning), Rajendra Agricultural University, Pusa, with immediate effect, leading to the writ petition. The same has been allowed, whereby the impugned order of transfer has been set aside on three counts which we shall discuss in detail hereinafter. 3. Learned counsel for the appellants has advanced elaborate submissions in support of the appeal, and submits that the order of transfer may be restored. He has taken us through the schemes of the Bihar Agricultural University Act 1987 (Bihar Act 8 of 1988) (hereinafter referred to as 1988 Act), as well as the Bihar Agricultural University Act 2010 (Bihar Act 12 of 2010) (hereinafter referred to as 2010 Act). He relies on the following reported judgments:- (i) Taylor v. Taylor (Law Reports 1876 (III)Chancery Divn 145) (ii) Rajendra Agricultural University Versus Ashok Kumar Prasad [2010(1) SCC 730] 4. Learned counsel for respondent no.1 has supported the order of the learned single Judge. He submits 4 that the three grounds on which the impugned order of transfer has been set aside are unsustainable. He wraps up his submissions by concluding that, if the learned single Judge has taken a possible view in facts and law, then the court of appeal should desist from taking a different view even though a better one. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. We should first of all examine the scope and the schemes of the two enactments to the extent relevant in the present context. 1988 Act set up two universities in the erstwhile, undivided State of Bihar. One is Rajendra Agricultural University comprising of the agricultural colleges at different places which now fall in the present State of Bihar, as well as one veterinary college situate in Patna. The second university is Birsa Agricultural University which includes agricultural colleges and one veterinary college, all of which in north and south Chotanagpur and Santhal Parganas, and are now situate in the present State of Jharkhand. It may be stated, though not of much relevance in the present context, that the erstwhile State of Bihar was divided into the present State of Bihar 5 and the State of Jharkhand with effect from 15th November 2000. 6. The institutions falling within the present State of Bihar, which were earlier governed by 1988 Act, have, by operation of 2010 Act, been divided into two categories. Some of the institutions including the Bihar Veterinary College have been, by operation of 2010 Act, taken out of the purview and the sweep of 1988 Act, and now will be governed by the provisions of the 2010 Act with effect from the date the same has been enforced. The institutions including the Bihar Veterinary College are incorporated in Schedule-I of 2010 Act, and shall be governed by its provisions, whereas the remaining institutions which fall within the State of Bihar shall continue to be governed by 1988 Act. As it stands today, there is no veterinary college within the jurisdiction of 1988 Act. It is of considerable importance to state that the headquarters of 1988 Act continues to be at Pusa in the district of Samastipur (Bihar), whereas the headquarters of the University constituted under the 2010 Act shall be at Sabour in the district of Bhagalpur (Bihar). 7. As stated hereinabove, respondent no.1 was, 6 in July 2010, posted as University Professor-cum-Chief Scientist in Bihar Veterinary College, Patna. He was also given the charge of acting Dean, Veterinary and Animal Science, Patna, with effect from 29.7.2009. It appears that the interns of the Bihar Veterinary College had raised the banner of revolt to enhance their internship allowance payable per month. Respondent no.1 seems to be leading a committee to negotiate the issue with the interns. The communication dated 24.7.2010, from respondent no.1 to the Vice-Chancellor of Rajendra Agricultural University, assumes considerable importance in the present context. It reports the state of affairs and also quotes the telephonic orders of the Vice-Chancellor “either to get the strike called off by any means in 24 hours or submit resignation from the post of Dean (VAS)”. The communication proceeds to state that inspite of his best efforts he could not get the strike dissolved within the stipulated period. However, in view of the oral direction, he had stopped functioning as acting Dean (VAS). This was followed by the impugned transfer order, from a teaching assignment in Patna, to an administrative assignment at Pusa, with immediate effect. 8. The writ petition has been allowed on three 7 grounds. The impugned order was punitive in nature, and has been passed because respondent no.1 was unable to get the strike dissolved. The learned single Judge proceeded to observe that the same by itself is not of much consequence. However, taking into account the combined effect of the three factors which form the basis of his judgment, it becomes a matter of consequence. The second ground to set aside the impugned order is that the same was passed in hot haste, just two days prior to the enforcement of 2010 Act. The Bihar Agricultural University constituted under 2010 Act, includes a veterinary college which is the specialization of respondent no.1, whereas he was transferred to Rajendra Agricultural University which is bereft of a veterinary college. It is a colourable exercise of power, inasmuch as the status of the employees of the two universities were to be determined on “as is where is basis” as on the date of enforcement of 2010 Act. The third ground to set aside the impugned order is that there was no recognized post of Director (Planning) under the 1988 Act and, in substance, respondent no.1 has been transferred to an ex-cadre post. 9. We would take up each ground one by one. The entire text of the impugned order is reproduced 8 hereinbelow:- “Dr. Siya Ram Singh, University Professor- cum-Chief Scientist and holding the charge of Dean, Veterinary and Animal Sciences, Patna is assigned to act as Director Planning, RAU, Pusa with immediate effect. Dr. S K Chandra, Director Planning, RAU, Pusa is relieved from the charge of Director Planning, RAU, Pusa with immediate effect to join his new assignment.” We do not see any trace of victimization or punitive action from the impugned order. Even if one were to tear the veil to find out the real state of affairs, the only possible material on record to lead to the conclusion that it was punitive in nature was the statement quoted by respondent no.1 in his aforesaid communication dated 24.7.2010, the telephonic order of the Vice-Chancellor that “either to get the strike called off by any means in 24 hours or submit resignation to the post of Dean (VAS).” Taking the statements made in the said communication dt. 24.7.2010, at its worse against respondent no.1, there was apparently a direction to resign his position as Acting Dean which, on his own showing, he had promptly complied. Failure to do so might have incurred the wrath of the authorities. We are of the view that resting the first ground on this limited material would be doing so on inadequate material and tenuous 9 ground. If that were to be permitted, administration would become a very difficult affair. There are many subterranean currents which an administrator has to tackle, and the courts must desist from making undue interference with such orders which are essentially administrative in nature. Law is well settled that the administration must be allowed some play in the joints. The fact that the impugned order takes respondent no.1 from the township of Patna to Sabour, or from his teaching duties to administrative duties, are irrelevant considerations to be taken into account to adjudge the validity of the impugned order of transfer. It is a well-known example that a medical practitioner associated with medical practice and/or teaching is always appointed as the Director of Medical Services of the Government of Bihar with which mainly and principally administrative duties are attached. We are, therefore, of the view that the impugned order of transfer by itself is not punitive in nature and seems to be an administrative order to tackle the subterranean currents of the university without any stigma, or trace of victimization, in so far as the petitioner is concerned. 10. The second ground is that respondent no.1 has been transferred in hot haste, on the eve of enforcement 10 of the 2010 Act, and to damage the petitioner permanently. This aspect of the matter requires a close scrutiny of the schemes of the two Acts from our limited angle. The institutions situate in the present State of Bihar, which were governed by 1988 Act, have now been divided into two categories. Some of the institutions including the Bihar Veterinary College shall, with effect from the date 2010 Act has been enforced, be governed by the provisions thereunder. It is equally correct to state that the institutions which are not in Schedule-I of 2010 Act, and would continue to be governed by 1988 Act, does not have a veterinary college. It is equally correct that specialization of respondentno.1 seems to be in veterinary and animal science. It appears from the scheme of 2010 Act that the employees including the members of the teaching faculty would automatically stand divided between the jurisdictions created by the two Acts on “as is where is basis”, as on the date of enforcement of 2010 Act. In other words, if the impugned order had not been passed, respondent no.1 should have been governed by 2010 Act, whereas by the impugned order of transfer issued two days prior to enforcement of 2010 Act, he has passed on to the jurisdiction of 1988 Act. It, therefore, 11 raises a vital question whether or not the impugned order of transfer at this stage was purposive or was an accidental and fortuitous administrative act. We see no design or purpose in doing any damage to respondent no.1 by such transfer, nor do we see any ill effects on him. It is evident that the administrative headquarters of the Universities of the two enactments are not in Patna, but are at Pusa and Sabour. Even if the impugned order of transfer were not passed, respondent no.1 could have been transferred under 2010 Act from Patna to Sabour. By such hair-splitting arguments as has been advanced on behalf of respondent no.1, we would be very reluctant to nullify such administrative orders which are meant to serve certain purpose which is neither punitive in character, nor brings any stigma on the employee, nor reduces his status and emoluments. Respondent no.1 cannot by any means insist for teaching functions, or must be posted in Patna, or may not be assigned administrative functions. We cannot fetter the administration with such personal predilections of the employees. The contention is rejected. 11. Transfer of respondent no.1 to the jurisdiction of 1988 Act does not leave him remediless. Section 46 of 2010 Act comes to his aid, and is reproduced hereinbelow:- 12 “46. Provisions regarding existing colleges and institutions.- (1) The Colleges and Research Institutes indicated in Schedule –I shall be maintained, controlled and managed by the University. (2) All the properties, assets, liabilities and obligations in respect to institution indicated in Schedule –I shall stand transferred to and vest in or devolve upon the University. (3) Notwithstanding anything contained in (other Universities in the State) Universities Act, or in Statutes or Regulations made thereunder, College of Agriculture/Veterinary and other colleges in allied fields (as approved by Government) shall after the commencement of this Act, be disaffiliated from other University in the State and shall be maintained by the University as constituent College. (4) All employees of any College, Research Institute or other officers & Institutions mentioned in Schedule-I shall be employee of the University and shall cease to be the employee of Rajendra Agriculture University: Provided that they shall give written notice to the Rajendra Agricultural University within one year of publication of Notification of the Act in the Bihar Gazette. They may be permitted to be retained in the service of and to be posed on equivalent post within the jurisdiction of the Rajendra Agricultural University. Likewise the employees of Rajendra Agricultural University, if they so desire, may give written notice to the State Government for their absorption in the Bihar Agricultural University, Sabour. The State Government will intimate its decision to the University.” It is evident on a perusal of sub-section(4) of Section 46 that, after the employees have been allocated to the jurisdiction of the two enactments on “as is where is” basis, it is open to the 13 employee to submit an application before the appropriate authority for his transfer to the other jurisdiction. We are, therefore, of the view that the impugned order of transfer on the eve of enforcement of 2010 Act, in no way erodes the order. 12. The third ground is that the post of Director (Planning), to which respondent no.1 has by the impugned order been transferred, is an ex-cadre post and he cannot be transferred to that position. Section 19 of the 1988 Act is headed `Officers of the University’, one of whom is ’Directors’, and the other one is `Director of Resident Instruction of the other Agricultural University of the State’. Sub-section (4) of section 24 envisages three Directors, namely, Director of Research, Director of Resident Instruction, and Director of Extension, with their duties and functions stated therein. Section 24(4)(iv) provides that the duties and responsibilities of other Directors shall be as prescribed by the statutes. Learned counsel for respondent no.1 has strenuously submitted that the post of Director (Planning) is not to be found in 1988 Act and, therefore, he has been assigned to an ex-cadre post which is impermissible in law. 14 12.1) The notification dated 13.8.1987, issued under the signature of the Vice-Chancellor of Rajendra Agricultural University, reads as follows:- “ In pursuance of the decision taken in the meeting of the Board of Management held on 01.07.87, the post of Planning Officer is re- designated as Director, Planning and Motitoring in the pay scale of Rs.1500-60- 1800-100-2000-125/9-2500/- from the date of Board decision.” It thus appears to us that, in view of the growing activities under 1988 Act, the University had way back in August 1987, decided to convert the post of Planning Officer to that of Director (Planning). Therefore, the post of Director (Planning) is available for quite some time in Rajendra Agricultural University, may be an ex-cadre post. The impugned order of transfer cannot be set aside on the ground that respondent no.1 has been transferred to an ex-cadre post so long the transferee does not lose by way of salary and emoluments. The counter affidavit of the University is replete with statements that respondent no.1 shall not be loser by way of his salary, emoluments, and perquisites after his transfer. On the contrary, it states that he shall be entitled to extra allowance which was not available to him while posted as Professor. Law is well settled that no employee has 15 any enforceable right to continue on a particular position, or insist on discharging particular nature of duties and functions, so long he does not suffer by way of his salary and emoluments. Indeed decisions have gone to the extent of saying that no employee can at all insist on duties and functions. If the employer chooses not to assign any duty and function to an employee, no complaint in that behalf could be entertained so long the salary and emoluments are not adversely affected, or is not relegated to a lower post. 13. In the result, we are of the view that the impugned order of transfer dated 30th July 2010, is fit to be upheld. The appeal is allowed, and the writ petition is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. ( S K Katriar ) ( Samarendra Pratap Singh ) mrl