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2013 DIGILAW 101 (CAL)

Keshab Chandra Dhara v. STATE OF WEST BENGAL

2013-02-14

PRASENJIT MANDAL

body2013
JUDGMENT Prasenjit Mandal, J. The writ petitioner has filed this application praying for the following reliefs:- a) Writ of and/or in the nature of Mandamus directing the Respondents to rescind/recall/cancel the impugned resolution of the Executive Council of the University as its 64th meeting held on 17.10.2012, and impugned order dated 12.12.2012 in so far as the same purport to post the petitioner at Ramsai, District Jalpaiguri; b) Writ of and/or in the nature of Mandamus directing the Respondents not to disturb the functioning of the petitioner as Assistant Director (Farms) of the Respondent University at its Mohanpur Campus, Nadia; c) Writ of and/or in the nature of Certiorari directing the Respondents to certify and transmit the records of the case before this Hon’ble Court so that the impugned Executive Council resolution dated 17.10.2012 and the order dated 12.12.2012 in so far as the same adversely affect the petitioner may be quashed and conscionable justice done to the parties; d) ………… h) On the recommendation of the Selection Committee and its acceptance by the Executive Council of the respondent university in its 64th Meeting held on October 17, 2012, the writ petitioner has been appointed Assistant Director (Farms), Directorate of Research, Extension & Farms, West Bengal University of Animal & Fishery Sciences in the revised pay scale of Rs.15,600-39,100/- and Grade Pay of Rs.8,000/- against existing vacancy upon certain terms and conditions. The place of posting has been decided at Ramsai Farm, District Jalpaiguri. He has been informed that he will be on temporary service for one year from the date of joining followed by a period of two years on probation. During this period, if his service is found unsatisfactory, his employment is liable to be terminated as per rules and regulations of the respondent university. The petitioner has also been directed to join his service within 30 days from the date of issue of the appointment letter dated December 12, 2012. The petitioner has contended that there is no Farm under the respondent university at Ramsai. The State Government took over the Ramsai Farm, but, by a decision of the Division Bench dated February 9, 2004, the State Government has been directed to hand over the entire land of the farm and that of Krishi Vigyan Kendra to Ramkrishna Seva Kendra. The petitioner has contended that there is no Farm under the respondent university at Ramsai. The State Government took over the Ramsai Farm, but, by a decision of the Division Bench dated February 9, 2004, the State Government has been directed to hand over the entire land of the farm and that of Krishi Vigyan Kendra to Ramkrishna Seva Kendra. So, the order of appointment at Ramsai by the respondent university is without jurisdiction and violative of fundamental rights of the petitioner. So, the petitioner filed a representation dated December 7, 2012 requesting the respondent university to reconsider the decision of posting at Ramsai. The petitioner should be allowed to function as Assistant Director (Farms) at Mohanpur Campus upon quashing the impugned resolution of the Executive Council dated October 17, 2012. The respondent university is contesting this application by filing a separate affidavit-in-opposition denying the allegations raised in the writ petition. Now, the question is whether the petitioner should get the reliefs as prayed for. Having heard the learned Counsel for the parties and on going through the materials on record, I find that admittedly, the petitioner joined the respondent university on lien. Subsequently, the petitioner prayed for permanent absorption in the respondent university and accordingly, by taking a resolution, the writ petitioner was allowed to continue in their present posting on lien free. Thereafter, on being selected to the aforesaid post, the petitioner was released from his present incumbency on December 14, 2012. Thereafter, he filed this application. As per materials on record, Indian Council of Agriculture and Research (ICAR) sanctioned a Krishi Vigyan Kendra (henceforth shall be called ‘KVK’) at Ramsai and several posts were sanctioned for running the said KVK in the year 2001-2002 and then an Assistant Director (Farms) was given additional responsibility in charge of Ramsai KVK for a temporary post till the posts sanctioned by the ICAR for Ramsai KVK were filled up. The Executive Council of the respondent university held the 48th Meeting dated June 24, 2009 over the take over of the Ramsai Farm from the University by the State Government leaving 50 acres of land for running the KVK and the said take over was approved and the Division Bench of the Calcutta High Court directed the State Government to hand over the entire land of the Farm and that of the KVK to Ramkrishna Seva Kenkra. But, I do not find any material that the entire land had been transferred to Ramkrishna Seva Kendra. From the page no.21 appearing at Annexure 3 of the affidavitin- opposition, it appears that the writ petitioner was appointed Assistant Director (Farms) on lien under the Directorate of Research, Extension and Farms and as per terms of appointment, the petitioner was directed to report for duty at Mohanpur Campus. But, as per terms of appointment, he might be posted anywhere in West Bengal as per requirement of the work. On the basis of such terms and conditions, inter alia, the petitioner accepted the said appointment on lien and so, from the terms and conditions of service, I find that the petitioner is likely to be posted anywhere in West Bengal as per requirement of the work. The ICAR sanctioned a KVK at Ramsai with 16 posts (12 technical and 4 Group-D) in the year 2001-2002 and the then Assistant Director (Farms) was given additional responsibilities in-charge of Ramsai KVK for a temporary period till the posts sanctioned by the ICAR for Ramsai KVK were filled up. The respondent university had taken over the responsibilities of the Ramsai Farm after the closer of Ramkrishna Seva Kendra. The respondent university got the responsibility to run the Ramsai Farm from the State Government in the year 1999 along with 29 members of casual workers engaged by the erstwhile NGO for maintaining the then Bull Mother Farm. Since inception, the land of KVK and that of the farm was not demarcated, the staff engaged in the KVK are looking after both the KVK and the farm, which is creating problems for management of both the KVK and the farm. The State University is bearing the expenditure of the casual workers without getting any financial assistance from the State Government even after placing documents for sanctioning separate grants for the maintenance of the casual workers. The writ petitioner submitted a representation to allow him to continue in his present post as regular staff of the respondent university. It was resolved that the petitioner would be allowed to continue in his post, Assistant Director (Farms), if the post becomes lien free. The resolution stood confirmed. The Executive Council approved the proposal for absorption of the writ petitioner to the post of Assistant Director (Farms). It was resolved that the petitioner would be allowed to continue in his post, Assistant Director (Farms), if the post becomes lien free. The resolution stood confirmed. The Executive Council approved the proposal for absorption of the writ petitioner to the post of Assistant Director (Farms). Subsequently, while the petitioner was allowed to continue his present post on lien free by the decision dated October 17, 2012 of the Executive Council of the respondent university, he was transferred to Ramsai Campus in the District of Jalpaiguri. Litigations were held in respect of the land at Ramsai Campus. The respondent university has contended that the State Government had taken over possession of the land from the Ramkrishna Seva Kendra upon cancelling the lease agreement and thereafter, the State Government transferred the land to the respondent university and the ICAR also directed the University to run the KVK. At present, the Ramsai Farm is being run under the guidance of Director of Farms and as such, the Assistant Director (Farms) is also duty bound to run the same under the guidance of the Directorate of Farms. The order of the Division Bench setting aside the order passed by the West Bengal Land and Tenancy Tribunal on challenge of the lease of deed is under challenge before the Apex Court by filing two Special Leave Petitions filed by the State Government and the respondent university and so, as the respondent university being in charge and possession of the Ramsai Farm is bound to maintain the property till the disposal of the Special Leave Petition. So, the respondent university is bound to maintain the Ramsai Farm properly as per materials furnished by the respondent university. As per materials on record, there are about 151 acres of land and most of such area of land is being utilized for livestock enterprises, fodder cultivation and grazing of animals. At present, there are about 300 numbers of Bonpala Sheep which are required to be preserved in their native tract for indepth study of this rare breed. There is also a rare variety of animal known as Ghogroo pigs which are also maintained in the said Farm. These two types of animals have also been emphasized by the Government of India for livelihood generation of the State Farming Community. There is also a rare variety of animal known as Ghogroo pigs which are also maintained in the said Farm. These two types of animals have also been emphasized by the Government of India for livelihood generation of the State Farming Community. These breeds of livestock have a great scope for sustainable livelihood and improve of the poor and unemployed population of the State. These livestock farms are maintained by the State and Central Government funds provided to the University. As per order of the Apex Court appearing as Annexure R-8 to the affidavit-in-opposition, status quo order has been passed and so, the respondent university has a responsibility to maintain and preserve the animals which are now in their possession. The question of employment as contended by the respondent university cannot also be ignored. Under such circumstances, I find that the respondent university has directed the petitioner to join the post as Assistant Director (Farms) for proper maintenance of the same particularly when there is an order of the Apex Court for maintaining the same. An Assistant Director (Farms) is to look after the farm units including the staff working under him in the farm. Since, the petitioner has become an employee under the respondent university after absorption, he is, therefore, at the disposal of the university. The order of transfer is an incident of service and the respondent university is to decide the place of posting of the petitioner according to the need of the situation. Mr. Arabinda Chatterjee, learned Advocate appearing for the petitioner, has contended that at present, there is no farm of the State university at Ramsai Campus and only the KVK is existing and this KVK is not under the control of the respondent university. He has submitted that such contention of the petitioner is corroborated by the Status report of the respondent university appearing as Annexure R-1 in the affidavit-in-reply on behalf of the writ petitioner. The State Government is releasing funds for the KVK only and as such, since the petitioner has no scope to work at Ramsai, the order of transfer is nothing but a punishment and if it is implemented, the service of the petitioner will not be utilized properly. So, the order is arbitrary. The State Government is releasing funds for the KVK only and as such, since the petitioner has no scope to work at Ramsai, the order of transfer is nothing but a punishment and if it is implemented, the service of the petitioner will not be utilized properly. So, the order is arbitrary. He has also contended that as per Status report, the livestock has been described only at Belgachia and Monhanpur and there is no indication of any livestock at Ramsai under the control and management of the respondent university. With due respect to Mr. Chatterjee, on the basis of the materials furnished by the respondent university as indicated above and the order of the Apex Court for maintaining status quo by the respondent university, I am of the view that the respondent university cannot discharge its duties properly unless a regular appointment to the post of Assistant Director (Farms) is given. Accordingly, in my view, the contention of the writ petitioner that the appointment is arbitrary and violative of Articles 14 & 19 cannot be accepted. In that view of the matter, I am of the opinion that there is no scope of interference with the order of the Executive Council of the respondent university dated October 17, 2012 and the subsequent order dated December 12, 2012 of the respondent university. The petitioner cannot get any relief. Accordingly, the application is dismissed. The interim order as granted earlier stands vacated with effect from this day. Considering the circumstances, there will be no order as to costs. Urgent Xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.