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Shahid Ahmed v/s SKUAST & Others


Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    WP(C) No. 3227 & CM. No. 6726 of 2019

    Decided On, 23 September 2019

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE DHIRAJ SINGH THAKUR

    For the Petitioner: Rahul Pant, Advocate. For the Respondents: Jatinder Choudhary, Advocate.



Judgment Text

1. The petitioner challenges the order dated 30.08.2019 to the limited extent of his transfer. According to the order impugned, the petitioner, who is stated to be a Chief Scientist & Head, Krishi Vigyan Kendra (KVK), Reasi and was attached with the Directorate of of Research has been ordered to be detached and posted at KVK, Doda against the post of Sr. Scientist & Head. Respondent No. 4 has been directed to be posted in place of the petitioner. A number of other transfers have also been effected through the same order, which, however, is not under challenge.

2. The order impugned is challenged on the grounds of jurisdiction and malafides.

ON JURISDICTION

3. It is stated that the order impugned has been issued under orders of the respondent No. 3, who was Incharge Vice-chancellor of the Sher-e-Kashmir University of Agricultural Sciences & Technology (SKUAST), Jammu. It was urged that according to the Act of 1982, i.e. the Sher-e-Kashmir University of Agricultural Sciences & Technology Act, 1982, in the event of a temporary vacancy of the post of Vice-Chancellor or in the event of his absence on leave or for any other reason, the senior most Director of the University, with the approval of the Chancellor may perform the routine duties of the Vice-Chancellor. According to Section 25(4), such a period has not to exceed six months.

4. It was urged that even when the respondent No. 3 was performing the routine duties of the Vice-Chancellor in terms of Section 25(4) of the Act, yet the respondent No. 3 just before the expiry of his six months' tenure on 10.09.2019, passed the order impugned with a view to accommodate his favourites. It was also urged that the respondent No. 3 could not have transferred the petitioner at all, as he was only supposed to discharge routine affairs of the Vice- Chancellor and not take any policy decision.

The plea raised that the senior most Director of the University could not have passed an order of transfer as it constituted a policy decision is without any legal basis. The issue with regard to the transfer is a matter, which can clearly be said to be a routine matter, falling within the jurisdiction of the Vice-Chancellor and in his absence vested with the officer performing the duties as envisaged under Section 25(4) of the Act. As to whether a particular officer is best suited to work against a particular post can never be said to be a policy matter. This argument, therefore, in my opinion, is without any substance and is, accordingly, rejected.

ON MALAFIDES

5. With a view to challenge the order on malafides, as stated in the foregoing paragraph, apart from asserting that respondent No. 3 had passed the order impugned towards the fag end of his six months' tenure, to accommodate his favourites, the petitioner has also taken pains to allege personal bias and mafides against him. The bias is alleged not in the recent past, but relates as far back as in 2013. It was alleged that the respondent No. 3 had deliberately refused to release pending increments and the Pay Band-4, which was due to the petitioner. A communication dated 21.11.2013 is then stated to have been addressed by the petitioner to the Vice-Chancellor, wherein details of harassment on the aforementioned and other grounds were cited in detail. Apart from writing to the Vice- Chancellor, the petitioner had also been representing to respondent No. 3 himself in this regard, who was working as a Director Extension. The communications dated 06.03.2012, 03.09.2012 & 12.04.2013 are on record.

6. Not only this, it was alleged that vide communication dated 02.07.2012 respondent No. 3 while acting as a Director Extension had sought the reasons from the petitioner for seeking permission to meet the Vice-Chancellor during the month of June-July, 2012. In this regard, the petitioner appears to have responded to the same on 16.07.2012, conveying reasons to respondent No. 3 and the reason was to apprise the Vice-Chancellor regarding the non-release of the increments for the last four years as also his failure to placing him in Pay Band-4, besides failing to clear the travel bills and refusing to sanction the earned leave in time etc.

7. Learned counsel for the petitioner urged that based upon the representation filed by the petitioner against the respondent No. 3, his powers were seized and vested in Dr. R. K. Arora, Associate Director Extension, who subsequently vide order dated 11.08.2016 released the annual increments in favour of the petitioner by granting post-facto sanction.

8. It was next urged that even according the University, for effecting transfers, a 4-Member Committee, headed by the Director Research as Chairman was constituted, yet the order impugned had been passed at the behest of respondent No. 3 by bye-passing the Committee. It is stated that the petitioner along with other scientists were involved in the research works, which would be badly affected. A letter of protest dated 05.09.2019 also appears to have been issued by the Director Research, addressed to respondent No.

3. A copy of the letter was produced by the learned counsel for the petitioner during the hearing of the case and is taken on record. The said communication addressed to the respondent No. 3 is reproduced hereunder:-

"Dr. K. S. Risam I/c Vice-Chancellor, SKUAST, Jammu No:AUJ/DR/19-20/F-56/3738 Dated: 05.09.2019. Sub:- Transfers of Scientific Staff from Research Station. Sir, This is in reference to order No. 43(Est.) of 2019 dated 30.08.2019 regarding various transfers taken in the interest of administration. As Director Research undersigned in custodian of the research programme of the University and this order has re-shuffled various positions with respect to the research stations which has created imbalance with respect to the research faculty at the various Stations and Sub-Stations of the University. As Director Research I express my concern with respect to the transfer made at the Serial Nos. 1, 2, 3, 5, 9 & 12 wherein the undersigned has not been taken under confidence moreover the appropriate substitutes have also not been provided, with some of the units even do not have I/c scientists at the stations.

Further, due to the University, one sided action ignoring this office, as a result of the following research stations are without In-charge and head of the Station:

1. Maize Research Centre, Udhampur

2. RHRSS, Bhaderwah

3. RARS, Rajouri

4. ACRA, Dhiansar

5. ACHR, Udheywalla

6. MBRSS, Poonch Submitted for favour of appraisal and redressal in the interest of promotion of research at the Stations/Sub-Stations.

Yours faithfully,

Sd/-

Director Research"

9. In response, the University has taken a stand that the transfer order was issued in the interest of administration. It was stated that the petitioner was not an employee of the SKUAST University but was appointed as a Programme Coordinator in the KVK in the year 2008, which are being run by the Indian Council for Agricultural Research (ICAR), with a view to promote and coordinate education, research and its application in agriculture, agro-forestry, animal husbandry, fisheries, home science and allied sciences. This is done in coordination with the various Agricultural Universities through execution of Memorandum-of-Understanding. According to Clause 7 of the Memorandum, it is stated that the officers of the KVK cannot be transferred for any work other than that pertaining to KVK.

10. It was further stated that the petitioner was temporarily transferred and posted as the Deputy Director Research in Directorate of Research keeping in view his substantive position of senior scientist and Head intact and that subsequently under the Career Advancement Scheme (CAS) the petitioner was designated as Chief Scientist, as per the guidelines of ICAR. Subsequently, it was urged that the temporary posting of the petitioner as Deputy Director, Research against the lien vacancy was terminated on the completion of tenure of Dr. Deepak Kher (Deputy Director, Research, who had been posted as Director Planning & Monitoring on tenure basis. An effort was also made to justify the withholding of increments and for questioning the manner in which the petitioner used to proceed on leave without awaiting for the sanction.

11. The reply affidavit has been filed by the Registrar, SKUAST Jammu. However, no affidavit at all has been filed by respondent No. 3, who had been impleaded in his personal capacity. The allegations of malafides and bias though sought to be denied by the Registrar remained unrebutted by respondent No. 3. There is enough material on record to suggest that the petitioner had for quite some time been protesting against the inaction of respondent No. 3 in taking a decision on his request either for release of increments, placement in a higher pay band, clearance of TA bills or for sanctioning of his earned leave in time.

12. It can also be seen that on some occasions, respondent No. 3 had called for an explanation seeking reasons for permission to meet the Vice-Chancellor. There certainly appears to exist an underlying friction between the two. Although, the University has tried to question the integrity of the petitioner on the ground that there had been numerous complaints against him, which were enquired into in the past, on which account also is stated to have been transferred in the interest of better administration, yet, the said justification cannot in any manner be a substitute for a specific denial of the specific allegations of bias and malafides levelled by the petitioner against respondent No. 3.

13. It is settled law that the allegations of bias and malafides have to be specifically rebutted by the person ag

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ainst whom they are made and if unrebutted, a presumption could be raised in favour of the petitioner against the said respondent. Whether or not there was any element of bias or and whether the order in regard to the petitioner's transfer issued for malafides reasons cannot at all sought to be rebutted by the Registrar of the University. The said allegations could have only been rebutted by respondent No. 3, which he failed to do in the present case. 14. Having considered the entire matter, in my opinion, the petitioner has made out a case for interference on the grounds of bias and malafides. I accordingly allow this petition and quash the order impugned dated 30.08.2019 to the extent of the petitioner only. Notwithstanding the above, it shall be open to the Chancellor of the University to independently decide as to whether the petitioner is required to be retained at his present place of posting or else the issue can even be considered by the new incumbent upon completion of the tenure of respondent No. 3. 15. With the aforesaid directions, the writ petition is disposed of.
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