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2014 DIGILAW 160 (JK)

Amit Saraf v. SKUAST

2014-04-04

M.M.Kumar

body2014
1. The instant petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir prays for issuance of directions to the respondents to relieve the petitioner from the post of Field-cum-Laboratory Assistant so as to enable him to join on the post of Horticulture Development Officer in the department of Horticulture, Government of Jammu and Kashmir, pursuant to his selection and appointment as such vide Government order No. 53-Agri of 2012 dated 08.02.2012. However the University-respondent No.1 did not relieve him by urging that the petitioner was required to serve the University for a period of five years which was an implied condition imposed on him for his PhD programme. It necessitated the petitioner to approach this Court which would be further clear from the facts as noticed in the following paras. 2. The petitioner was appointed as Field-cum-Laboratory Assistant in Sher-e-Kashmir University of Agricultural Sciences and Technology- respondent no.1 on 15.10.2003. On 10.11.2003 he was posted in the Division of Pomology & PHT, Udheywalla. The details of his appointment are discernible from that order which has been placed on record (Annexure A). It is claimed that the post of Field-cum-Laboratory Assistant is a non-teaching post as the nomenclature itself makes it evident. During the course of his employment the petitioner applied to respondent no. 1 for undertaking the PhD programme in Post Harvest Technology. The respondents vide memorandum dated 29.10.2008 accorded necessary sanction for deputation of various in-service Field-cum-Laboratory Assistants, including the petitioner, permitting them to undertake PhD programme (Annexure B). It is evident from a perusal of the said memorandum that no express condition to serve the University has been imposed while granting sanction to undertake the PhD programme. It would thus be necessary to read the aforesaid memorandum which reads as under:- "Memorandum Sanction is hereby accorded to the deputation of the following in-service FCLA's (only for release of salary) for undergoing Phd programme in the respective disciplines show against each from the date of their joining Phd programme. S No. Name Discipline Undergoing Phd Division/Station 1. ------------ ------------ ------------ 2. Amit Saraf PHT Division of PHT, Chatha 3. ------------ ------------ ------------ 4. ------------ ------------ ------------ 5. ------------ ------------ ------------ 6. ------------ ------------ ------------ 7. ------------ ------------ ------------ By order Sd/- Registrar" 3. S No. Name Discipline Undergoing Phd Division/Station 1. ------------ ------------ ------------ 2. Amit Saraf PHT Division of PHT, Chatha 3. ------------ ------------ ------------ 4. ------------ ------------ ------------ 5. ------------ ------------ ------------ 6. ------------ ------------ ------------ 7. ------------ ------------ ------------ By order Sd/- Registrar" 3. The petitioner was then relieved on 20.01.2012 and was directed to report to Dean FoA, Chatha for further duties as he had completed all the requirements and research work. He was advised to keep contact with his major advisor during that period. 4. When the petitioner was pursuing his PhD studies, he applied for the post of Horticulture Development Officer through proper channel while responding to an advertisement issued by the Jammu and Kashmir Public Service Commission. His application was duly forwarded by Head of the Department of Division of Post Harvest Technology of the University-respondent No. 1. He competed in the selection process and came to be selected for the said post. Consequently he was issued an appointment order dated 08.02.2012 to the post of Horticulture Development Officer. His name figured in the list at serial no. 05 (Annexure-D). 5. In order to get himself relieved from the post of Field-cum-Laboratory Assistant on which he was serving in the University, he filed an application dated 09.02.2012 through proper channel addressed to the Registrar of University seeking his relieving. That application was duly forwarded by the Head of the Department, Post Harvest Technology Section, FOA, Udheywala-respondent No. 3 to the Registrar (Annexure-E). However, he was not being relieved nor any reason was being assigned by passing any order to that effect. The petitioner was under an obligation to join as Horticulture Development Officer within 21 days of the issuance of appointment order dated 08.02.2012. He claimed that his rights were being put to severe prejudice and he would suffer immensely. It is in these circumstances that petitioner approached this Court. 6. The petitioner has also disclosed the possible reason for his non-relieving. In para 13 of the petition it has been averred that in respect of the teaching staff the University has issued a circular under the Statute framed by the University directing that all teachers who have been deputed for undergoing PhD programme under Faculty Improvement Programme to enter into an agreement (Bond) to the extent that such teachers were to serve the University for a period of at least five years. It is the case of the petitioner that the post of Field-cum-Laboratory Assistant is a non teaching post and the post held by the petitioner is not covered by the aforesaid circular/instructions. He has submitted that the circular applies only to the teaching posts, whereas the post of Field-cum-Laboratory Assistant is a non-teaching post. Therefore, it has been urged that question of execution of any bond would not arise binding the petitioner to serve the University for a period of at least five years after acquiring PhD. A copy of the circular dated 18.05.2011 has been placed on record (Annexure-F). It is stated that such a condition would be applicable to the members of the teaching staff as per the memorandum dated 06.10.2008 issued by the University (Annexure-G). In respect of 13 Assistant Professors who have been deputed for undergoing the PhD programme, the requirement of furnishing such a bond has been acted upon. It is for this reason that the petitioner was not asked to execute any bond. 7. The case of the petitioner has been opposed by the University and according to the objections filed, it is conceded that the University is having Faculty Improvement Programme and it may sponsor any teacher to undergo PhD programme in various agricultural Universities or institutes of repute throughout the Country. As per Clause 37(iv) and 43 Chapter-VI of the statutes framed by the University, it has been provided that all the teachers deputed for undergoing PhD course under the Faculty Improvement Programme were required to execute a bond with the University as prescribed by the Vice Chancellor. The bond is an agreement entered into by the sponsored teacher with the University on a prescribed proforma. However, there is nothing on record to suggest that the petitioner at any stage was asked to execute any such bond despite the fact that he had filed application for appointment to the post of Horticulture Development Officer through proper channel nor any such condition was imposed when sanction was accorded vide order dated 29.10.2008 that he would be under bond to serve the University for a period of five years. 8. 8. It is further appropriate to mention that when the matter came up for consideration on 23.02.2012 an order was passed in CMA No. 546/2012 and an interim direction was issued to the University-respondent No.1 to relieve the petitioner from the post of Field-cum-Laboratory Assistant at his own risk and responsibility and the relieving was not to prejudice the rights of the University in any manner whatsoever. Accordingly, the petitioner was relieved and he has been serving as Horticulture Development Officer for the last about two years. 9. I have heard learned counsel for the parties and perused the paper book with their able assistance. 10. On the facts of the present case it is crystal clear that the petitioner was permitted to undertake PhD programme without attaching any condition or limitation. The order dated 29.10.2008, according sanction to the deputation of the petitioner to undergo PhD programme, did not incorporate any clause subjecting him to any condition, there is not a Whisper that the petitioner was to execute a bond and to serve the University for a period of five years after qualifying the PhD. The situation becomes worse for the respondents when petitioner applied for the post of Horticulture Development Officer while responding to an advertisement issued by the J&K Public Service Commission through proper channel. At that stage also the University did not indicate that he was not qualified to apply without first executing a bond to serve the University for a period of five years. His application was duly forwarded by respondents. In that regard averments have been made in para 6 of the petition, which read as under:- "6. That during the course of aforesaid Phd programme, the petitioner through proper "channel applied for the post of Horticulture Development Officer which was advertised by the J&K Public Service Commission. The application form filled in by the petitioner for the post of Horticulture Development Officer was duly forwarded by the Head of Department of Division of Post harvest Technology of Sher-e-Kashmir University of Agricultural Science and Technology, Jammu." 11. In the corresponding para of the objections filed by the University the following reply has been entered which reads as under- "6. That the averments made in para No.9 are admitted as a matter of record. In the corresponding para of the objections filed by the University the following reply has been entered which reads as under- "6. That the averments made in para No.9 are admitted as a matter of record. It is further submitted that forwarding of application dated 09-02-2012 by the University officials does not confer any right whatsoever upon the petitioner with regard to his relieving from the University." 12. It is thus patent that the petitioner, in all fairness, had followed the discipline and has routed his application through proper channel to participate in the selection process for the post of Horticulture Development Officer. Respondents did not impose any condition either at the time when the petitioner was granted permission to undertake PhD programme vide order dated 29.10.2008 by asking him to execute a bond to serve the University for five years nor any such thing was done at the time when his application was forwarded through proper channel by the University to the Public Service Commission. At the time of relieving no order was passed although the stand taken in the objection is that the University has incurred expenses to facilitate the petitioner to acquire a degree of PhD and therefore; they are lawfully entitled to recover the expenses. The whole object of sending an application through proper channel is to raise any such objection at that stage itself. The opportunity apparently was not availed. There is not a whisper with regard to the amount of expenses or any other charges which were required to be paid by the petitioner that might have been paid by the University. It does not lie in the mouth of the officers of the University at this stage of relieving the petitioner that he has to serve the University for at least five years after acquiring the degree of PhD. There is no circular or rule, which binds the petitioner to do any such thing nor any bond has been executed undertaking any such commitment. Therefore, the writ petition deserves to succeed and the order dated 23.02.2012, directing the University-respondent to relieve the petitioner is liable to made absolute. 13. As a sequel to the above discussion, this petition succeeds. There is no circular or rule, which binds the petitioner to do any such thing nor any bond has been executed undertaking any such commitment. Therefore, the writ petition deserves to succeed and the order dated 23.02.2012, directing the University-respondent to relieve the petitioner is liable to made absolute. 13. As a sequel to the above discussion, this petition succeeds. It is declared that the respondent-University has rightly relieved the petitioner from the post of Field-cum- Laboratory Assistant to enable him to join on the post of Horticulture Development Officer and that there was no commitment of the petitioner to serve the University for five years. The interim order dated 23.02.2012 passed by this Court is made absolute. 14. Petition along with application stand disposed of.