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2024 DIGILAW 1583 (RAJ)

Rajendra Singh Bajiya S/o Sh. Ram Singh Bajiya v. Karan Narendra Agriculture University, Jaipur

2024-11-19

SAMEER JAIN

body2024
ORDER : Sameer Jain, J. 1. With consent of the learned counsel representing the parties the instant petitions are adjudicated jointly by this judgment. The instant judgment shall be applicable on both the petitions of mutatis mutandis basis. 2. At the outset, learned counsel for the petitioners has submitted that vide the impugned order dated 23.10.2024 the services of the petitioners on the post of Assistant Professor (Entomology) were transferred from Rajasthan Agricultural Research Institute, Durgapura, Jaipur to College of Agriculture Kishangarhbas, Alwar (in S.B. Civil Writ Petition No. 17205/2024) and College of Agriculture (in S.B. Civil Writ Petition No. 17192/2024) Peethampuri Neem Ka Thana, in an arbitrary and illegal manner under the veil of administrative exigencies. It is further submitted that the petitioners are rendering services ever since 07.10.2020, as Assistant Professor (Entomology) – appointed via direct placement/recruitment. 3. Further, learned counsel has placed reliance upon Annexure-3 i.e. State Government letter dated 04.01.2023 and Annexure-5 i.e. letter dated 19.01.2022 and submitted that a blanket ban was imposed upon all the departments under the administrative control of the Government, which includes Nigams, Mandals and Autonomous Institutions like the respondent-University. It is further submitted that respondent-University itself has argued for clarification that whether the said ban will be applicable on them or otherwise and the same is replied by the respondent-State vide letter dated 19.01.2022 (Annexure-5) stating that the said ban shall be applicable on the respondent-University also. 4. Thereafter, learned counsel has placed reliance upon the provisions enshrined under Section 40 and 41 of the Act and Statues of SKN Agriculture University, Jobner (Rajasthan) and has submitted that the vital control over the respondent-University, is in the hands of Government; and the same is made unambiguous by the aforementioned provisions as whenever State Government issues any Service Rules or conditions, then the same shall be deemed amended upto the extent of the said statues. 5. Learned counsel representing the petitioners has further averred that as per the rules governing the manner of appointment, the direct recruitment of teachers is ought to be subject to non-transfer for a period of 5 years. Moreover, the registrars and other officers posted at various notable posts are also appointed by the State Government from candidates belong atleast to Rajasthan Administrative Services cadre. 6. Therefore, the impugned transfer order is passed after sans application of mind. Moreover, the registrars and other officers posted at various notable posts are also appointed by the State Government from candidates belong atleast to Rajasthan Administrative Services cadre. 6. Therefore, the impugned transfer order is passed after sans application of mind. In support of the contentions made insofar learned counsel has placed reliance upon Statute No. 6 Clause (3) (v) and has further submitted that the petitioner(s) ought not to be transferred within a period of five years, especially at a place where no vacancy on Assistant Professor in the said field/branch/subject is available. Hence, it can be deduced that the impugned transfer order is made without consideration of vital aspects of circumstances moreover, in an arbitrary manner bypassing the erstwhile Rules and letters issued/circulated by the State Government. 7. Per contra, learned counsel representing the respondent-University has drawn the attention of this Court on the definition of “Government servant” under the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976 more particularly on Section 2 (c) which defines Government Servant. While placing reliance upon the same, it is submitted that respondent-University and their employees do not fall under the ambit of the definition of “Government servant” as per the Act of 1976, moreover, if momentarily it is assumed that the petitioners fall under the said definition of government servant then the Service Tribunal would be the appropriate forum for raising grievances. 8. Learned counsel has further relied upon the provisions enshrined under Section 26 and 40 of the Act of 2013 and has submitted that the said provisions categorically notes the powers and duties of the Vice Chancellor, Registrar and other Officers and also grants them wide powers to effectuate and carry out transfer considering the administrative exigencies. 9. It is further averred that as per the provisions of Section 40 of the Act of 2013, the limited/miniscule control is exercised by the State Government upon the said University, and the same pertains to the aid/funds grant. Additionally, as per Section 12 of the said Act the Board of Management has delegated powers upon the Vice Chancellor and other Officers like Registrar and teachers. It is also made clear that the power of passing a transferring order is only granted to the Vice Chancellor of the University or to the person authorized by him. 10. Additionally, as per Section 12 of the said Act the Board of Management has delegated powers upon the Vice Chancellor and other Officers like Registrar and teachers. It is also made clear that the power of passing a transferring order is only granted to the Vice Chancellor of the University or to the person authorized by him. 10. Further, learned counsel has submitted that the letter dated 19.01.2022 is being wrongly interpreted by the petitioners and the same cannot create an estoppel qua the respondent-University. 11. Likewise it is submitted that the petitioners have not approached this Court with clean hands, as they were posted in the University prior to the said appointment letter, for a period of approximately 30 years. It is further submitted that respondent-University is having twelve branches which are imparting education with utmost sincerity and truthfulness and considering the wide scope of management, on account of administrative exigencies, discipline and internal management and control, certain employees can be transferred. Moreover, while passing the said transfer order the respondent-University has duly taken note of the administrative exigencies which prevailed at that time. 12. Learned counsel under instruction has submitted that though petitioners were appointed as Assistant Professors of Entomology but their appointment and practice is to impart education in other courses (UG courses) also therefore, even if there is no vacancy/subject of Entomology at Neem Ka Thana, the same shall not vitiate the said transfer order. 13. Lastly, learned counsel has averred that due the non-joining of the petitioners on the said posts, at the respective places, commotion is caused hence the instant petition should be dismissed at threshold. 14. Learned AAG representing the respondent-State has submitted that the circular/orders dated 04.01.2023 and 03.01.2024 issued by the Government of Rajasthan are applicable qua the Government servants and the employees of the respondent- University do not fall under the said definition as per the Act of 1976 therefore the ban imposed vide the aforesaid letter will not applicable upon the respondent-University. 15. Heard and considered. 16. This Court upon consideration of the arguments made by the learned counsel representing various parties and upon an assiduous scanning of the record and the relevant Statues and Acts is of the following view: 16.1 That the petitioners on 07.10.2020 were appointed on the post of Assistant Professor (Entomology). 15. Heard and considered. 16. This Court upon consideration of the arguments made by the learned counsel representing various parties and upon an assiduous scanning of the record and the relevant Statues and Acts is of the following view: 16.1 That the petitioners on 07.10.2020 were appointed on the post of Assistant Professor (Entomology). It was made clear in the appointment letter that qua the said service and conduct, the Rules of SKR AU, Jobner, 2013 will be made applicable. 16.2 That upon a perusal of the definition of “government servant” from the Act of 1976 it can be deduced that the petitioners do not fall under the ambit of the said definition. Therefore, the present petitioners cannot be considered as “government servants” hence the circulars dated 04.01.2023 and 03.01.2024 are not applicable upon the respondent-University. For the sake of convenience the said definition is reproduced herein below: “2 (c) "Government Servant" means a person who is or has been a member of a Civil Service or who holds or has held a Civil post under the Government of Rajasthan and includes any such person on foreign Service or whose services are temporarily placed at the disposal of a local or other authority and also any person in the service of a local or other authority whose services have been temporarily placed at the disposal of the State Government or a person in service on a contract or a person who has retired from the Government service elsewhere and is re-employed under the Government of Rajasthan, but does not include a person in the Civil Service of the Indian Union or a State Government serving on deputation in Rajasthan who will continue to be governed by the rules applicable to such person.” 16.3 That as per the provisions of Section 40 and 26 of the Act, of 2013 the limited domain and the powers exercised by the State Government are confined to aids and grant. Moreover, the Vice Chancellor is the highest authority for the respondent- University, who has powers delegated upon him to pass appropriate transfer orders considering the administrative exigencies. Moreover, the Vice Chancellor is the highest authority for the respondent- University, who has powers delegated upon him to pass appropriate transfer orders considering the administrative exigencies. For the sake of convenience the relevant extract from Section 26 of the Act of 2013 is reiterated herein below:- “Powers and duties of the Vice-Chancellor: …...(9) Subject to the provisions of the preceding sub-sections, the Vice-Chancellor shall give effect to the decisions of the Board regarding the appointments, promotions and dismissal of officers, teachers and other employees of the University. (10) The Vice-Chancellor shall be responsible for the proper administration of the affairs of the University and for a close co-ordination and integration of teaching, research and extension education. (11) The Vice-Chancellor shall exercise such other powers and perform such other duties as are conferred or imposed on him under the provisions of this Act and the Statues.” 16.4 That it is not disputed that prior to the said appointment on the post of Assistant Professor, the petitioners were situated at said place of posting for a period of approximately three decades. 16.5 That the Assistant Professor of Entomology is capable of teaching and giving lectures in the respective/other subjects of the under graduate course also. 16.6 That this Court under judicial review has no power to intervene into the grounds of administrative exigencies till demonstrable illegality or malafides are reflected in the transfer orders. Moreover, the reliance placed by the learned counsel appearing for the petitioners upon Statute 6 Clause (3)(v) is a misnomer as the appointment and transfers of the designations as prescribed in the said Act and Statutes is entirely based upon the discretion of the Vice Chancellor and as per the relevant Rules and Regulations, considering the administrative exigencies. Additionally, as per the Act of 2013, the Board of Management has categorically delegated its powers qua passing of transfer orders and other requisites for smooth functioning of the University upon the Vice Chancellor. More specifically by Statue 2 (1) it is made clear that the BOM and the Vice Chancellor (ex officio Chairman of the Academic Council) shall exercise their powers and jurisdiction as per the provisions of Section 12 of the Act of 2013. More specifically by Statue 2 (1) it is made clear that the BOM and the Vice Chancellor (ex officio Chairman of the Academic Council) shall exercise their powers and jurisdiction as per the provisions of Section 12 of the Act of 2013. 16.7 That qua the issue of ban imposed by the State Government vide circular/order dated 04.01.2023 and 03.01.2024, issued by Department of Administrative Reforms, Government of Rajasthan, this Court deems it apposite place reliance upon Section 40 of the Act of 2013 whereby it is clarified that the State Government shall have limited role only qua grant of aids and funds and nothing else not even to make any transfers. Therefore, the said circulars are not applicable upon the respondent-University. For the sake of convenience, Section 40 of the Act of 2013 is reproduced herein below: “Control of the State Government:- Where the State Government funds are involved, the University shall abide by the terms and conditions attached to the sanction of such funds which may inter alia include prior permission of the State Government in respect of the following, namely:- (a) creation of the new posts of teachers, officers or other employees; (b) revision of the pay, allowances, post-retirement benefits and other benefits to its teachers, officers and other employees; (c) grant of any additional/special pay, allowance or other extra remuneration of any description whatsoever, including ex-gratia payment or other benefits having financial implications, to any of its teachers, officers or other employees; (d) diversion of any earmarked funds other than the purpose for which it was received; (e) transfer by sale, lease, mortgage or otherwise of immovable property; (f) incur expenditure on any development work from the funds received from the State Government for any purposes other than for which the funds are received; and (g) take any decision resulting in increased financial liability, direct or indirect, for the State Government. Explanation:- The above conditions shall also apply in respect of the posts created from any other fund, which may, in the long term, be likely to cause financial implications to the State Government.” 17. Moreover, this Court deems it apposite to place reliance upon the dictum enunciated in Shilpi Bose (Mrs.) and ors. vs. State of Bihar and ors. Explanation:- The above conditions shall also apply in respect of the posts created from any other fund, which may, in the long term, be likely to cause financial implications to the State Government.” 17. Moreover, this Court deems it apposite to place reliance upon the dictum enunciated in Shilpi Bose (Mrs.) and ors. vs. State of Bihar and ors. reported in 1991 Supp (2) SCC 659 wherein, it is categorically stated that the Courts while exercising its jurisdiction under Article 226 of the Constitution of India, normally should not interfere in transfers made by the departments considering the administrative exigencies. The relevant extract from the said ratio is retreated herein below: “4. In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for administrative reasons unless the transfer Orders are made in violation of any mandatory statutory Rule or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer Orders issued by the competent authority do not violate any of his legal rights. Even if a transfer Order is passed in violation of executive instructions or Orders, the Courts ordinarily should not interfere with the Order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer Orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer Orders.” 18. Accordingly, the instant petitions being devoid of any merits, stands dismissed. Petitioners are directed to join their services at the place of posting (as per the transfer orders) immediately. It is made clear that if the petitioners fail to join at the said place of posting, respondents shall be at liberty to initiate disciplinary proceedings against the petitioners, if deemed essential. 19. In light of the above, the present petitions are dismissed with aforesaid directions. Pending application(s), if any, shall stand disposed of.