Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 635 (CAL)

Gora Chand Hazra v. State of West Bengal

2015-07-30

SANJIB BANERJEE

body2015
ORDER : Sanjib Banerjee, J. The petitioner has been functioning as the head of the department of agricultural chemistry and soil science at the Bidhan Chandra Krishi Viswavidyalaya since October 1, 2014. The petitioner complains of the petitioner being forcibly sent on deputation in an autocratic exercise of authority by the vice-chancellor of the university who is temporarily vested with the powers of the executive council thereof. 2. In November, 2012, the executive council, the board of studies and the faculty council of the university were dissolved by the Bidhan Chandra Krishi Viswavidyalaya (Temporary Super-session) Act, 2012 and a new council was formed with similar powers as the erstwhile executive council. Within a few days of the said Act of 2012 coming into effect, the Governor as the chancellor of the university appointed the petitioner on the said council. At a meeting of such council held on May 21, 2014, whereat the petitioner was present, the council set up a committee for establishing an extended campus of the university at Burdwan Sadar and another at Sisunia. 3. It appears that the temporary statute of 2012 was enacted for the purpose of disbanding the existing decision-making body in the university and for ultimately enacting the procedure for representation on such body. On November 24, 2014 the temporary council of the university, of which the petitioner was a member, was dissolved and the vice-chancellor was given authority to discharge all duties and functions of the council till such time that the new enactment came into force. By the end of 2014, the West Bengal Krishi Viswavidyalaya Laws (Amendment) Act, 2014, had been passed by the State assembly and published in the official gazette. All that was necessary for such Act to apply to the university was the publication of the notification in the official gazette to indicate the appointed date. 4. In March, 2015, the State Government called upon the university to constitute the executive council since the relevant statute had come into effect upon the appointed date being notified, whereupon the university wrote back to the Government that it would take some time for conducting the elections to constitute the executive council. According to the petitioner, the excuse that was proffered by the university was at the behest of the vice-chancellor so that the vice-chancellor could wield complete authority over the university without any accountability to the executive council. According to the petitioner, the excuse that was proffered by the university was at the behest of the vice-chancellor so that the vice-chancellor could wield complete authority over the university without any accountability to the executive council. The petitioner claims that since he was the general secretary of the Adhyapak Samity of the university he requested the vice-chancellor on April 10, 2015 to take expeditious steps to form the executive council. The petitioner submits that the vice-chancellor did not take kindly to the petitioner's temerity of making such request. 5. By the late afternoon of April 10, 2015, the petitioner received an order by which the petitioner was posted on deputation to the extended campus of the university at the College of Agriculture at Burdwan with effect from May 16, 2015. The impugned notice indicated that the vice-chancellor had "been pleased to approve the placement of the teachers at A and B below to the College of Agriculture at Burdwan Sadar on deputation basis for a period until further orders..." The petitioner's name was at the top of the list and he was required to join his posting on deputation by May 16, 2015. The reason ascribed was that it was "in the interest of the University for developing the new College at Burdwan." By the same order of April 10, 2015, the petitioner was called upon to hand over the charge of "Headship" of the department to the "next senior most Professor of the Department." 6. The petitioner made an immediate representation to the vice-chancellor on April 13, 2015, claiming that the petitioner being sent on deputation amounted to depriving the petitioner of the privileges as the head of a department. The petitioner emphasised that he was the supervisor for four doctoral students and three masters' students and on the advisory boards of a number of students for supervising their theses. The petitioner indicated that if he were to be kept away from the university laboratory by virtue of his new posting, the careers of the students under him would be in jeopardy. The petitioner also referred to his having spent 15 years of his service career in Cooch Behar and Jhargram. The petitioner spoke of his expertise being wasted by requiring him to head a fledgling under-graduate institute. 7. The petitioner also referred to his having spent 15 years of his service career in Cooch Behar and Jhargram. The petitioner spoke of his expertise being wasted by requiring him to head a fledgling under-graduate institute. 7. No sooner had the petitioner's representation against his seemingly punitive deputation reached the vice-chancellor's table than a corrigendum to the order of April 10, 2015 was published by the registrar under the instructions of the vice-chancellor. The corrigendum required the petitioner to report at Burdwan on April 17, 2015, rather than the joining date of May 16, 2015 indicated in the original order of April 10, 2015. 8. The petitioner contends that the petitioner's posting is punitive in nature and is a backlash to the petitioner's request to the vice-chancellor to ensure that the executive council of the university was put in place. The petitioner apprehends that the vice-chancellor desires to exercise complete control over the affairs pertaining to the university and regards the petitioner as a threat to his autocratic rule. The petitioner says that the viciousness of the vice-chancellor's conduct is evident from the fact that the petitioner's date of joining was advanced from May 16 to April 17, 2015 merely because the petitioner had dared to make a representation against the order of forced deputation and, thereby, had questioned the vice-chancellor's unbridled authority. 9. The petitioner submits that in service jurisprudence deputation is not to be equated with transfer and no Government employee can be sent on deputation without his consent. In support of such legal proposition, the petitioner refers to a judgment reported at (1997) 8 SCC 372 (State of Punjab v. Inder Singh). Paragraph 18 of the report is clear in its enunciation of the legal position that deputation means the temporary assignment of the services of an employee to a post outside his cadre where the employee returns to the parent cadre to occupy the same position after the expiry of the tenure of deputation, unless he is promoted in his parent department as per the governing rules in the meantime. The petitioner, however, emphasises more on the following sentence of paragraph 18 which unambiguously postulates that the consent of the person deputed is imperative for the deputation to be effected: "There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post." 10. Another judgment, reported at (1999) 4 SCC 659 (Umapati Choudhary v. State of Bihar), has been placed by the petitioner for the recognition therein that deputation is an assignment of an employee of one department or cadre or even an organisation to another department or cadre or organisation and it is consensual as it "involves a voluntary decision of the employer to lend the services of its employee and a corresponding acceptance of such services by the borrower employer (with) the consent of the employee to go on deputation." 11. The petitioner says that since it is nobody's case that the petitioner consented to go on deputation, the order of April 10, 2015 as against the petitioner is exceptionable. The petitioner submits that it is evident from the affidavit filed by the university that the posting is on deputation and not a mere transfer. The petitioner insists that the orders impugned betray a colourable exercise of his authority by the vice-chancellor in his attempt to perpetuate his autocratic control over the university and its affairs without putting an executive council in place to oversee the decisions pertaining to the management of the university. The petitioner claims that contrary to the impression sought to be given by the opening lines of the order dated April 10, 2015, the decision to place the petitioner or the others referred to in the order at the campus being set up in Burdwan was not on the basis of any decision of the erstwhile council taken on May 21, 2014. The petitioner claims that he was an integral part of the council at the relevant time and all that the council resolved on May 21, 2014 was to set up a committee to monitor the setting up of the extended campus at Burdwan and another at Sisunia. The petitioner asserts that the high-level committee has made no recommendation and, at any rate, since the petitioner cannot be forced to go on deputation without the petitioner's consent, the order impugned should be set aside. 12. The petitioner asserts that the high-level committee has made no recommendation and, at any rate, since the petitioner cannot be forced to go on deputation without the petitioner's consent, the order impugned should be set aside. 12. When the petition was received in this court, an initial order was made on April 17, 2015, staying the operation of the impugned memorandum of April 13, 2015. The court was, prima facie, satisfied that the petitioner's claim of the respondents "having proceeded against the petitioner in a vindictive, mala fide and illegal manner" was established. The initial order was extended on May 13, 2015 till the disposal of the petition. 13. The respondents have gone about attempting to belittle the petitioner and his achievements in the affidavit filed on behalf of the university. However, the registrar as the deponent of the university's affidavit has maintained that the petitioner was "transferred from the main campus of the University to the College of Agriculture of Burdwan, on deputation, by the highest authority of the University in an extensive interest for the development of a new College" 14. The university appears to suggest that this was a routine transfer and, since the new campus at Burdwan Sadar requires a capable person to establish the same, the petitioner was found suitable therefor. The university submits that though the impugned orders have been described to be mala fide at the hearing, there is no case of malice made out in the petition. The university seeks to contend that since the authority now exercised by the vice-chancellor is pursuant to an order of the Governor as chancellor of the university, the order impugned cannot not be said to be illegal. 15. The university has referred to a judgment reported at (2012) 7 SCC 757 (Ashok Kumar Ratilal Patel v. Union of India) to make a distinction between an appointment on deputation and a transfer on deputation. In that case, the director of the computer department in the North Gujarat University applied for and obtained an appointment in the All India Council for Technical Education. After such petitioner's appointment was confirmed and even the petitioner's original employer accepted the same, the AICTE purported to deny the appointment on the ground that a deputation from a higher pay grade to a lower pay grade was impermissible. After such petitioner's appointment was confirmed and even the petitioner's original employer accepted the same, the AICTE purported to deny the appointment on the ground that a deputation from a higher pay grade to a lower pay grade was impermissible. The Supreme Court held that there was a distinction between an appointment on deputation and a transfer on deputation. When a person agrees to be appointed to a post which carries less pay, he cannot be denied the appointment merely on such ground. The decision is of no relevance in the context of the present matter where there can be no doubt that the petitioner has been sought to be sent on deputation without the petitioner's consent and in circumstances which cause material prejudice to the petitioner. 16. Another judgment, reported at (1993) 1 SCC 54 (M. Sankaranarayanan, IAS v. State of Karnataka), has been cited by the university for the principle enunciated therein that an inference of malice in fact cannot be made without the factual basis thereof in the pleadings. 17. The acts complained of herein are of the vice-chancellor of a university. The circumstances in which the impugned order of April 10, 2015 came to be made and the impugned corrigendum of April 13, 2015 came to be issued have been clearly stated in the petition. Paragraph 43 of the petition refers to the "vindictive attitude of the respondents" and that the acts complained of were "to retaliate his (the petitioner's) response as the General Secretary of Adhyapak Samity for formation of the Executive Council to affect or create disadvantages to petitioner's status and authority." Despite the petitioner's challenge to the basis of the order impugned, the university has not disclosed any recommendation of the high-level committee that had been constituted by the erstwhile executive council on May 21, 2014 to set up the Burdwan Sadar campus. 18. But it may not be necessary to dwell on such aspect, since such allegation pertains to the conduct of the vice-chancellor, no less, of a State university. What is apparent is that the order impugned and the corrigendum relate to the petitioner being sent on deputation to another post. 18. But it may not be necessary to dwell on such aspect, since such allegation pertains to the conduct of the vice-chancellor, no less, of a State university. What is apparent is that the order impugned and the corrigendum relate to the petitioner being sent on deputation to another post. Once it is recognised that for a Government employee to be sent on deputation to another post or cadre his consent is necessary, and the petitioner's consent in such regard was admittedly not obtained, the order has no legs to stand on. That the petitioner was being sent on deputation is evident from the impugned order of April 10, 2015 to which the impugned corrigendum is only an appendage. It is also the university's case on affidavit, inter alia, at paragraphs 3 and 5 thereof, that the petitioner had been transferred "on deputation". When the act complained of, to assign the petitioner on deputation, is found to be contrary to service jurisprudence, it may not be necessary to ascertain whether it was maliciously done or whether it was in the best interests of the institution. 19. The judgments relied on by the petitioner recognise deputation to be possible only upon the consent of the concerned employee. Since it remains uncontroverted that the petitioner had not consented to his deputation, indeed, the petitioner protested the same by his letter of April 13, 2015, the university could not coerce the petitioner to accepting his assignment on deputation or force him to join the post to which he had been deputed. 20. Though the State is represented, no submission has been made on its behalf. In facts of this case, the State may possibly have played a pro-active role and prevailed on the vice-chancellor to annul the illegal order without waiting for the court to set it aside. 21. WP No. 8601 (W) of 2015 succeeds. The impugned order of April 10, 2015, insofar as it relates to the petitioner, and the impugned corrigendum of April 13, 2015 are set aside. The petitioner will continue in his present post at the university in accordance with law. 22. The several ancillary issues raised by the petitioner, apart from the illegality of sending him on deputation without his consent, should not be deemed to have been answered against the petitioner. 23. The petitioner will be entitled to costs assessed at Rs. The petitioner will continue in his present post at the university in accordance with law. 22. The several ancillary issues raised by the petitioner, apart from the illegality of sending him on deputation without his consent, should not be deemed to have been answered against the petitioner. 23. The petitioner will be entitled to costs assessed at Rs. 50,000/- to be paid by the university at the first instance and for the executive council of the university, once it is put in place in terms of the relevant statute, to decide whether and to what extent such costs may be recovered from the appropriate person. 24. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.