IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 12781 of 2010 1. DR.SIYA RAM SINGH S/O LATE KAPILESHWAR PRASAD SINGH R/O TARA KUNG, NIL KANTH COLONY, SECTOR, 2, P.S.SHASTRI NAGAR, DISTT-PATNA, AT PRESENT UNIVERSITY PROFESSOR -CUM-CHIEF SCIENTIST AND ALSO DEAN, VETERINARY AND ANIMAL SCIENCE , BIHAR VETERINARY COLLEGE, PATNA Versus 1. THE STATE OF BIHAR THROUGH AGRICULTURE PRODUCTION COMMISSIONER BIHAR, PATNA 2. THE RAJENDRA AGRICULTURE UNIVERSITY null BIHAR, PUSA, SAMASTIPUR THROUGH ITS REGISTRAR , RAJENDRA AGRICULTURE UNIVERSITY, BIHAR, PUSA, SAMASTIPUR 3. THE VICE CHANCELLOR , RAJENDRA AGRICULTURE UNIVERSITY BIHAR, PUSA, SAMASTIPUR 4. THE DIRECTOR (ADMINISTRATION) RAJENDRA AGRICULTURE UNIVERSITY BIHAR, PUSA, SAMASTIPUR *** For the petitioner : M/s Y V Giri, Ramakant Sharma, Sr Advocates with Mr Rajesh Kumar, Advocate For the S t a t e : Mr A A G I For the University : Mr D K Singh, Sr Advocate with M/s Chandra Mohan Singh & Dr A K Upadhyaya, Advocates *** 5 22.09.2010 By the present writ application, the petitioner challenges the order dated 30.07.2010 issued under the orders of the Vice Chancellor by which he has been assigned to act as Director (Planning) at Rajendra Agricultural University, Pusa (Annexure-1). Petitioner is the Professor – cum- Chief Scientist and was holding the charge of Dean, Veterinary and Animal Sciences at the Bihar Veterinary College, Patna. The consequence of this is that on 30th July 2010, petitioner has been transferred from Bihar Veterinary College, Patna to Rajendra Agricultural University, Pusa, District – Samastipur. Petitioner challenges this order 2 on ground of colourable exercise of power and adversely affecting him. Counter affidavit has been filed on behalf of the Rajendra Agricultural University, its Vice Chancellor and the Director (Administration) of the University and rejoinder thereto has also been filed. Heard the parties and with their consent, the writ application is being disposed of at this stage itself. Petitioner’s challenge to the said order is primarily based on two grounds. It is submitted that it is not a bona fide exercise of power rather it is punitive because firstly it has been passed as petitioner was held responsible for failing to tackle and settle protest by interns being the Incharge Dean of the Bihar Veterinary College at Patna and further in order to damage the petitioner permanently, he was deliberately, on 30th July 2010, transferred to Rajendra Agricultural University, Samastipur at Pusa so that, upon bifurcation of the said University, he would be permanently thrown out of Bihar Veterinary College at Patna. In the counter affidavit, it is stated that as the petitioner was a senior employee of the Rajendra Agriculture University, the Bihar Veterinary College being its Constituent Unit, there was nothing wrong in transferring him from Bihar Veterinary College at Patna to a post involving higher responsibility at Pusa, District – Samastipur. Submissions of the petitioner, that it was a colourable exercise of power more punitive in nature, have been baldly denied without specific denial of facts in relation thereto. Petitioner is University Professor –cum- Chief Scientist and Chairman of the Department of Animal Breeding and Genetics at the 3 Bihar Veterinary College at Patna. He, being the seniormost Teacher in the faculty of Veterinary and Animal Science (referred to as the VAS), was also appointed as the Incharge Dean (VAS) and functioning as such since 31.07.2009 awaiting permanent appointment of Dean. By the impugned order, he is being transferred as Director (Planning) at the Rajendra Agricultural University, Pusa, District – Samastipur which petitioner has asserted is not a statutory post duly sanctioned as per law and, thus, is an ex cadre post on which he could not be posted. That apart, he asserts that there was a students’/interns’ agitation pending for a long time for enhancement of internship allowance which the University had failed to resolve because of which the students’ agitation at the Bihar Veterinary College took an ugly turn which is the primary reason why petitioner is being punished by this transfer. It is punishment more because on the day this transfer is ordered that is the 30th of July 2010, it was officially known that the University had been bifurcated and the Bihar Veterinary College with its employees was to become a Constituent Unit of the newly created Bihar Agricultural University, Sabour at Bhagalpur. Thus, petitioner was pushed out so that he could never return to Bihar Veterinary College from Rajendra Agriculture University, Samastipur at Pusa. In the counter affidavit, the fact with regard to long pending students’ agitation is not denied. It is not denied that petitioner had informed the University authorities about the same. The University had also communicated to the petitioner as Dean that the matter was receiving attention of the Vice Chancellor through a Committee and, as such, 4 normal functioning should be maintained at Patna. This is communication dated 22.07.2010 (Annexure-5). The report, sent by the petitioner and other faculty members including the Registrar of the University and the Dean, Students Welfare of the University informing that the agitating students had locked the building and were sitting on Dharna being report dated 22.07.2010, is not disputed by the respondents. The letter of the petitioner dated 24.07.2010 addressed to the Vice Chancellor (Annexure-7) is also not disputed by the respondents including the Vice Chancellor. This letter clearly mentions that the Vice Chancellor had asked the petitioner to either get the strike called off within 24 hours or submit his resignation from the post of Dean. Petitioner, accordingly, by the said letter, tendered his resignation as the Dean because he was only acting as the Dean being the seniormost Teacher. It appears the students’ agitation did not end and, accordingly, the impugned order was issued on the 30th of July, 2010 transferring the petitioner from Patna to Samastipur at Pusa. Upon these facts, the petitioner urges that the real ground for transfer was punishment for failure to tackle students’ agitation. He states that the agitation has been pending for long time and no solution or negotiated settlement by the University was being offered. Petitioner was only made an escape goat. Petitioner then submits that earlier, there was the Bihar Agricultural University Act, 1987. Under the Act, there were two Universities incorporated and established by virtue of Section 3 (1) thereof. Rajendra Agricultural University, with its Headquarters at Pusa in the district of Samastipur which had jurisdiction over whole of State of 5 Bihar as and then existed except areas falling within the divisions of North and South Chotanagpur and Santhal Parganas for which area, there was Birsa Agricultural University with its Headquarters at Ranchi. Accordingly, the Rajendra Agricultural University, Pusa, Samastipur had within itself the Bihar Veterinary College, Patna and the Bihar Agricultural College, Sabour, Bhagalpur and other institutions as its Constituent Units. Section 19 of the said Act provided for officers of the University which included Directors. Section 24 (4) thereof provides for three Directors being Director of Research, Director of Resident Instruction and Director of Extension Education in the University. Section 25 (ii) clearly provides that no University or any College or its institution shall create any teaching or non-teaching post involving financial liability nor shall increase the pay and allowances of its staff without prior sanction of the State Government. Section 35 provides for Statutes of the University and Statutes were framed and notified earlier were carried on. If we refer to Chapter – XVII of the Statute, it would be seen that there are three Directors as envisaged under the Act. There is no Director (Planning) envisaged either under the Act or the Statute. Director (Planning), as per the counter affidavit, was created by the Board of Management in the year 1987 by redesignating the post of Planning Officer in the higher pay scale. Petitioner has stated that this post of Director (Planning) has not received approval at any point of time from the State Government much less prior approval in terms of Section 25 (ii) of the said Act. As such, it is submitted that it is an ex cadre post not 6 found either in the Act or in the Statute. These facts are not denied by the University in the counter affidavit or otherwise. Petitioner could, therefore, not be transferred to the said post without his consent. It matters little whether it involves higher responsibility or not. So far as the third part of challenge is concerned, it needs a deeper look. As noted above, the Bihar Agricultural University Act, 1987 had been enacted before the bifurcation of the State of Bihar which took place in November, 2000. From the said Act, it would be seen that so far as Birsa Agricultural University is concerned, it fell within the newly created State of Jharkhand whereas the Rajendra Agricultural University fell within the State of Bihar. Under the Rajendra Agricultural University then not only the University at Pusa but its Constituent Unit included the Bihar Agricultural College, Sabour, Bhagalpur and the Bihar Veterinary College, Patna was included apart from other establishments with which we are not concerned. On 16.04.2010, the State Legislature enacted the Bihar Agricultural University Act, 2010 (Bihar Act 12 of 2010) (hereinafter referred to as the Act of 2010 for brevity). This Act modified the earlier Bihar Agricultural University Act, 1987 which, as noted earlier, now operated for all Agricultural Colleges and other establishments in Bihar. The 2010 Act now incorporated and established from the date of enforcement that is 16.04.2010, Bihar Agricultural University with its Headquarters at Sabour, District – Bhagalpur. By virtue of Section 3 (1) (ii), all Colleges, Research and Experimental Stations and other Institutions mentioned in Schedule – I would become a Constituent Unit 7 under full management and control of the Bihar Agricultural University. Schedule – I, inter alia, includes the Bihar Veterinary College, Patna. Thus, by operation of law as made by the 2010 Act, Bihar Veterinary College, Patna became a part of Bihar Agricultural University, Sabour, Bhagalpur and was effectively taken out of Rajendra Agricultural University, Pusa, Samastipur of which it was earlier a Constituent Unit. As noted above, petitioner was posted at Bihar Veterinary College, Patna. By operation of law as under 2010 Act, petitioner would now be an employee of the Bihar Agricultural University, Sabour being employed in the Bihar Veterinary College, Patna and it is to defeat this, that, on 30.07.2010, petitioner was transferred from Patna to Pusa. What is most interesting as is pointed out is that though the Act was made on 16.04.2010, its enforcement was to be done by a separate notification to be issued by the Government in terms of Section 1 (3) of the 2010 Act. On 19th July 2010, the State Government issued the notification of enforcement and sent it for publication in the official gazette. This notification was the notification in terms of sub-section (3) of Section 1 of the 2010 Act enforcing all the provisions of the 2010 Act. But this notification had a rider. It specified that it would be effective from the date of notification being published in the official gazette. Petitioner states that this notification having been issued on 19th July 2010, everybody, including the Vice Chancellor who transferred the petitioner, knew that it was matter of days when the 2010 Act would come into being which would materially affect the employees and taking advantage of delayed publication in gazette, issued the transfer orders on the 30th of 8 July 2010. The notification dated 19th July 2010 was published in the Bihar Gazette Extraordinary on the 02nd of August, 2010 just two days after petitioner’s transfer. Petitioner, thus, submits that having known of this notification which had already been issued on the 19th of July, 2010 and sent for publication in gazette, this action to damage and punish the petitioner permanently was taken two days before the notification was notified. Having considered the submission, on the three lines indicated above, in my view, the order of transfer cannot be permitted to operate. It may not be right to call it a mala fide exercise of power but it could be called a colourable exercise of power or an exercise lacking in bona fide. That is the cumulative effect of the three submission which have rightly been pressed into service. So far as the aspect of students’ agitation is concerned, respondents, including the Vice Chancellor, has not denied petitioner’s letter dated 24.07.2010 (Annexure-7) in which petitioner has clearly stated the threat held out by the Vice Chancellor against the petitioner for getting the students’ agitation resolved or else tender his resignation from the post of Incharge, Dean. The counter affidavit does not deny this fact. This fact, in isolation, may not be enough to challenge the transfer order but if the other two facts are taken together, the cumulative effect would be to clearly bring out the true nature of the order of transfer which would be nothing but punitive. Petitioner asserted that the post of Director (Planning) at Pusa in the district of Samastipur under the Rajendra Agricultural University is an ex cadre post being a post not sanctioned by 9 the State Government nor provided in the Act or in the Statute. Petitioner could not be posted there. In the counter affidavit, there is no dispute to these facts except stating that the post was created by the Board of Management of the Rajendra Agricultural University by upgrading the post of Planning Officer. As we have seen earlier, Section 25 (ii) of the 1987 Act prohibits creation of such post. The Act specifies only three posts of Directors in the University. It does not even refer to any post nor the Statute referred to any post as the post of Director (Planning). Thus seen, petitioner is being transferred to a post which legally, as per 1987 Act or the Statutes with reference thereto, does not exist in law. At best, it could be an ex cadre post on which petitioner could not have been sent. The third limb in this trilogy also appears to be correct. The 2010 Act had already been enacted on 16.04.2010 and it was known to everybody that the moment the enforcement notification is issued, the rights of employees would stand determined. If they were posted in any Schedule – I Establishment on the date of enforcement of the 2010 Act, they would be deemed to be employees of the newly created Bihar Agriculture University and if on that day they were in the Rajendra Agricultural University at Pusa then they would permanently remain there. It is also undisputed that this notification was duly issued on the 19th of July 2010 and sent for gazette publication. It was, thus, known to everybody that the moment notification is published in the gazette, the Act would be effective and the rights of employees determined and, therefore, on the eve of publication of the notification in the official gazette, this transfer order was hastily issued so as to punish the petitioner 10 permanently by ensuring that he can never return in normal course to the Bihar Veterinary College at Patna. Thus seen, and the three events taken together, it is quite apparent that the transfer was not because of any administrative exigency but ostensibly to harm and punish the petitioner and it is because of that this Court chose to call it a colourable exercise of power rather than mala fide exercise of power. Thus, in my view, it would not be in interest of justice to permit the impugned notification to operate. It is, accordingly, quashed and it is ordered that the petitioner would be deemed to be continuing at Bihar Veterinary College, Patna. The writ application is, accordingly, allowed. M.E.H./ (Navaniti Prasad Singh)