Madhya Pradesh High Court
Dr. Somesh Singh vs The State Of Madhya Pradesh on 23 August, 2017
1 W.P. No. 5474/2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO. 5474/2017
Dr. Somesh Singh
Vs.
State of Madhya Pradesh & Others
Shri P.R. Bhave, learned senior counsel with Shri A.T.
Faridee, learned counsel for the petitioner.
Shri Rajendra Kumar Mishra, learned counsel for
respondent Nos. 2 & 3 on caveat.
Shri Anil Khare, learned senior counsel with Shri H.S.
Chhabra, learned counsel for respondent No. 4.
ORDER
(23.08.2017) With consent of the parties matter is heard finally at motion stage.
2. The petitioner has filed the present petition challenging the order dated 04.04.2017 passed by respondent No. 3 thereby transferring the services of the petitioner from 2 W.P. No. 5474/2017 the post of Assistant Professor, School of Wildlife and Forensic Health, Nanaji Deshmukh Veterinary Science University, Jabalpur to Wildlife Unit, College of Veterinary Science and Animal Husbandry, Rewa in same capacity.
3. The petitioner was initially appointed on the post of Assistant Professor on the recommendation of selection committee and was posted at the department of Wildlife Health and Management, Centre for Wildlife Forensic and Health, MPPCVV, Jabalpur vide order dated 31.01.2012. The petitioner joined on the said post on 13.02.2012. The petitioner has cleared the probation period on 12.02.2014 and was granted increments from the due date. Thereafter, an order was passed on 04.04.2017 thereby services of the petitioner have been transferred from the post of Assistant Professor, School of Wildlife and Forensic Health, Nanaji Deshmukh Veterinary Science University, Jabalpur to Wildlife Unit, College of Veterinary Science and Animal Husbandry, Rewa in the same capacity. The petitioner submitted a representation for cancellation of the impugned transfer order, however, no cation has been taken in the 3 W.P. No. 5474/2017 matter. Therefore, the petitioner has filed the present writ petition.
4. Learned senior counsel appearing on behalf of the petitioner argues that the petitioner is expert in Wildlife Health and Management and is holding Master of Veterinary Science in Wildlife Health and Management and Ph.D in Wildlife Science and several students are doing MVSc and Ph.D under him. The petitioner has also alleged malafides against respondent No. 4. During the course of the arguments, the learned senior counsel submits that he does not want to press the question of allegations of malafides against respondent No. 4, as during the pendency of the said writ petition, respondent No. 4 retired. The said transfer order has been challenged by the petitioner on the ground that as per the norms set up by the Veterinary Council of India, the minimum standards of veterinary education there are only 17 departments required to be established in Veterinary Colleges which does not cover Department of Wildlife Health and Management. There is no such set up to establish any department of Wildlife at Veterinary College, 4 W.P. No. 5474/2017 Rewa. The MVSc and Ph.D Wildlife programmes are also not run at this college. The academic programmes of MVSc/Ph.D Wildlife Health and Management of School of Wildlife Forensic and Health, Jabalpur are already not accredited by ICAR in 2016 due to non compliance of its norms and guidelines. Under such circumstances transfer of the petitioner who is only Ph.D. Wildlife Science Staff will worsen the situation and make it difficult to run the Ph.D. Wildlife Health and Management Programme as per norms. The petitioner is the only eligible Wildlife expert to guide Ph.D. at Jabalpur and his transfer to Rewa will affect the research work and thesis submission of the students of Jabalpur pursuing MVSc and Ph.D. under him. The petitioner is the only staff qualified to guide the Ph.D. students as per the norms of the Indian Council of Agriculture Research, New Delhi. In the absence of the petitioner, the university has to appoint the advisors from teaching staffs of other branches and thus compromise with the education quality and standards and, therefore, the transfer order under no stretch of imagination said to be on 5 W.P. No. 5474/2017 any administrative ground.
5. It has further been submitted that the petitioner being an expert in Wildlife and Forensic Health his posting at Jabalpur will be more important and beneficial and useful services of the petitioner can best be utilized here. If, he is continued at Jabalpur his services will be available to the students who are doing MVSc and Ph.D. under him at Jabalpur; whereas, if the petitioner is compelled to join at Rewa no useful purpose will be served and, therefore, the transfer order by no stage of imagination can be said to be issued on administrative ground. In such circumstances, the learned senior counsel submits that if the impugned transfer order is allowed to stand it will create humiliation to the petitioner and will also ruin his and several students future doing degrees in the absence of expert faculty. He further submits that under the department there is no regulation for transfer. The statute is also silent about the transfer of its employees. The units at Rewa and Mhow open in 2016 for under graduate and there is no post graduate post in the said department at Rewa and Mhow, therefore, the impugned 6 W.P. No. 5474/2017 transfer order not issued under administrative exigency but has been issued malafide.
6. The respondents have field the reply and in the said reply it has been stated that prior to establishment of the university field of Veterinary Science was under Jawahar Lal Nehru Krishi Vishwavidhyalaya (hereinafter referred to as 'the Predecessor University'). In the predecessor university a new Department of Wildlife Health and Management was created which was subsequently upgraded as centre for Wildlife Forensic and Health. This centre had undertaken a detailed task including that providing all types of veterinary support to Forest Department in its conservation programme and in exigencies as and when required in collaboration with the Forest Department of the State. After creation of the new university, the entire field of veterinary science came within the fold of present university. This centre is a constituent unit of the university and has a supervisory body. This centre has been upgraded as School of Wildlife Forensic and Health. Thereafter, the Board of Management of the university considered the proposal for starting two units of 7 W.P. No. 5474/2017 School of Wildlife Forensic and Health at colleges of Veterinary Science at Rewa and Mhow. It was decided that these two units are to be developed into independent departments in future. Apart from studies, the units are suggested to grant awareness programme in Wildlife for general public as regards how to safeguard crops/self from attacks by wild animals any once. It was in this background as well as the two units have been created to impart teaching of Wildlife courses at under graduate levels. For this process one post of Assistant Professor has been transferred to College at Rewa, on which the petitioner has been posted as In-charge of the unit in view of his suitability. These units are designed to the subsequently elevated to independent department in future. The transfer of the petitioner in any way is not detrimental to the students or studies or research work and is in furtherance of the public interest. The discipline of Wildlife Forensic and Health is totally a new discipline and requires multi disciplinary faculty. In fact the School of Wildlife Forensic and Health in the university is the first of its kind in the entire country which has recently 8 W.P. No. 5474/2017 been followed by similar institute at 2 or 3 places in the country. The faculty in the institute at Jabalpur is one of the best in nation both in quality and quantity. The petitioner cannot insist to be continued at Jabalpur that to the detriment of public and national interest. In any case a research scholar is not required to have an advisor in the same station, the apprehension of change of supervisor on account of transfer of the petitioner is utterly hollow. Thus, from the above said facts, it is clear that the impugned transfer order has been issued in public interest as per the administrative exigency and the same has not been issued malafidely. It has further been submitted that the petitioner has already been relieved in the month of April itself, but he has not yet joined at the place of transfer. Although there is no interim order in favour of the petitioner.
7. The petitioner has filed rejoinder to the said reply and in the rejoinder, the petitioner has stated that the impugned transfer order is not as per the statute and law prevailing in the field. The Statute or Act concerned does not permit such transfer of teacher of the university to college. 9 W.P. No. 5474/2017 The learned senior counsel appearing on behalf of the petitioner argues that the impugned transfer order is illegal and arbitrary. He submits that from perusal of the impugned transfer order, it reveals that the same has not been issued in administrative exigency or on the ground that the petitioner is a surplus employee. He submits that there is no regulation or statute regarding the transfer of employees of the university to college. He submits that by the impugned transfer order, the services of the petitioner have been transferred from university to college which is contrary to the statute. He further argues that the units at Rewa and Mhow are open in the year 2016 and these units only imparting the under graduate course and not for post graduate.
8. On the other hand, learned counsel appearing on behalf of the respondents submits that the Board of Management of the University considered the proposal for starting two units of School of Wildlife Forensic and Health at Colleges of Veterinary Science at Rewa and Mhow. These units are to be developed into independent department in 10 W.P. No. 5474/2017 future. In pursuance to above order, two unites of School of Wildlife Forensic & Health (SWFH) in the colleges of Veterinary Science and Animal Husbandry, one each at Mhow and Rewa were established. For felicitating this out of the two sanctioned post of Assistant Professors which were attached to SWFH, Jabalpur one post was transferred back to SWFH Mhow and one to SWFH Rewa, the newly created unit. The units have been created for providing veterinary assistance to the wildlife including the Tiger Reserve in their areas of catchment. In light of the aforesaid background, the authorities of the university were required to post faculty at this important unit, keeping in view the high object for which its establishment was proposed. Thus, the competent authority after proper application of mind issued the transfer order dated 04.04.2017 whereby the petitioner has been transferred to Rewa in the Wildlife unit. Looking to the significance of the assignment and the suitability of the petitioner for the post, he has been made the In-charge of the unit by the order impugned. Thus, the impugned order has been issued in administrative exigency and public interest. 11 W.P. No. 5474/2017
9. So far as, guiding the students for research work is concerned, the counsel for the respondents submits that there are qualified faculty members at Jabalpur even the teachers under whom, the petitioner himself has studied and in any case, it is for the employer to decide about the posting of particular person at particular place in view of the exigencies of service. The petitioner has remained posted at Jabalpur right from his day of initial appointment and, therefore, he cannot contend that he be continued at Jabalpur for all times.
10. Learned counsel appearing on behalf of the respondents also submits that the powers and functions of the university has been given under Section 6 of the Nanaji Deshmukh Pashu Chikitsa Vigyan Vishwavidhyalaya Adhiniyam 2009 (hereinafter referred to as 'the Adhiniyam). The Clause-h of Section 6 of the Adhiniyam provides that the university shall have power to establish and maintain colleges and institutions relating to Veterinary and Fisheries Sciences. The Section 23 provides for the powers of the Board. As per Clause-h of the said Adhiniyam provides for 12 W.P. No. 5474/2017 the appointment of committees, either standing or tempering, as it may consider necessary, and specify the terms of reference thereof subject to the provisions of this Act and Statutes. Thus, on the basis of the said provision, learned counsel submits that the respondents have taken a decision to establish two units at Rewa and Mhow. So far as, the provisions regarding the transfer either under the regulation or statute is concerned, the learned counsel for the respondents submits that the university has adopted the Government Rules for example Fundamental Rules and other Rules. The Fundamental Rule 9 (17) provides for the transfer of its employees and, therefore, as per the Fundamental Rule 9(17), the respondents have power to transfer its employee. Learned counsel for the respondents further submits that the transfer is an incident of service and the scope of interference by this Court in the matter of transfer is limited as held by the Apex Court in the case of Gujarat Electricity Board and another V. Atmaram Sungomal Poshani, reported in AIR 1989 SC 1433 as well as in the matter of S.C. Saxena Vs. Union of India and Others, reported in 13 W.P. No. 5474/2017 (2006) 9 SCC 583.
11. Heard learned counsel for the parties and perused the record. From perusal of the record, it reveals that the petitioner was appointed on the post of Assistant Professor at the department of Wildlife Health and Management, Wildlife Forensic and Health Centre, MPPCVV, Jabalpur vide order dated 31.01.2012. After completion of probation period, he was confirmed on the said post on 12.02.2014. Thereafter, vide order dated 04.04.2017, the services of the petitioner have been transferred from the post of Assistant Professor, School of Wildlife and Forensic Health, Nanaji Deshmukh Veterinary Science University, Jabalpur to Wildlife Unit, College of Veterinary Science and Animal Husbandry in the same capacity. The said transfer order has been challenged by the petitioner on the ground that the petitioner is appointed in the university and by the impugned order, the services have been transferred to the college which is impermissible. As per the reply filed by the respondents, the Board of Management of the University has passed a resolution for 14 W.P. No. 5474/2017 starting two units of School for Wildlife Forensic and Health at Colleges of Veterinary Science at Rewa and Mhow. Apart from studies, the units are suggested to grant awareness programme in Wildlife for general public as regards how to safeguard crops/self from attacks by wild animals. With this objections two units of School of Wildlife Forensic and Health in the colleges of Veterinary Science and Animal Husbandry one each at Rewa and Mhow were established and for the said purpose, the one post from Jabalpur was attached to Rewa at newly created unit.
12. In view of the aforesaid, the competent authority after proper application of mind issued the transfer order dated 04.04.2017 whereby the petitioner has been transferred to Rewa in the Wildlife Unit. Thus, the impugned transfer order has been issued in administrative exigency and in public interest. So far as, the allegations regarding malafides are concerned, as the learned senior counsel appearing on behalf of the petitioner does not press the said allegations, therefore, this Court is not commenting on the part of the malafides alleged by the petitioner in the petition. The 15 W.P. No. 5474/2017 impugned transfer order is not detrimental to the career of the petitioner. It has also pertinent to note that the petitioner has already been relieved from Jabalpur on 06.04.2017 and has not yet joined at the transfer place.
13. The Apex Court in the case of Gujarat Electricity Board and Another (supra) in para 4 has held as under:-
"4. Transfer of a Government Servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public 16 W.P. No. 5474/2017 servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other."
14. Similarly, in the case of S.C. Saxena (supra), the Apex Court in paragraphs 6 and 9 has held as under:-
"6. We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. Apart therefrom, if the appellant really had some genuine difficulty in reporting for work at Tezpur, he could have reported for duty at Amritsar where he was so posted. We 17 W.P. No. 5474/2017 too decline to believe the story of his remaining sick. Assuming there was some sickness, we are not satisfied that it prevented him from joining duty either at Tezpur or at Amritsar. The medical certificate issued by Dr. Ram Manohar Lohia Hospital proves this point. In the circumstances, we too are of the opinion that the appellant was guilty of the misconduct of unauthorisedly remaining absent from duty.
9. We find no reason to interfere with the order made by the Tribunal and the High Court. The appeal is dismissed accordingly without costs, but we make it clear that the appellant cannot be held guilty of unauthorised absence from 07.07.1989 to 11.07.1989."
15. Thus, in light of the aforesaid discussion as well as in light of the judgments passed by the Apex Court, I do not find any reasons to interfere into the said transfer order.
16. Accordingly, the writ petition is dismissed with no order as to costs.
(Ms.Vandana Kasrekar) Judge ashish