Shri Ved Bhushan Sharma vs University Of Delhi And Others
2001 Latest Caselaw 1289 Del

ORDER

Vikramajit Sen, J.

1. The controversy in the present case revolves around the question as to whether the Petitioner had been appointed to an ex cadre post of Senior Technical Assistant (for handling GLC Counters). If this is so, the Petitioner's contention that he cannot be assigned any other duties may be correct. In terms of the Respondents' Notice dated 4th October, 1999 the Petitioner was directed to join a team which was invested with the task "to expedite the long-pending and urgent Stock Verification (both consumables and non-consumables) in the department." The Petitioner remonstrated against this Notice the very next day, inter alia, stating that his "appointment was for the instruments i.e. HPLC, Scintillation Counters etc." in which he had developed expertise. It appears that the Petitioner, despite his objections, joined the stock verification duty. Respondent No. 3, Head of Department, Department of Zoology, University of Delhi appears to have failed to address the fundamental objection of the Petitioner inasmuch as he understood the Petitioner to have requested for "an assignment of alternative duties" and expressed his inability to entertain it, as is evident from his letter dated 12.10.1999.

2. Simultaneously with the notice dated 4th October, 1999, the Respondents also issued an Office Order of even dated informing all the 'technical staff' whose names were given in the enclosed list of their newly assigned duties: thereby the Petitioner was assigned the duties of Store-in-Charge. Immediately on receipt of the above-mentioned letter dated 12.10.1999 of the Head of the Department, the Petitioner again recorded his Objections in writing to the effect that while he had reported to Dr. A.K. Singh for stock verification, he should be continued in the Central Instrumentation Facility. However, Respondent No. 3, in terms of letter dated October 20, 1999 called upon the Petitioner to report to the duty of Store-in-Charge, relying on a decision of the University that all non-teaching employees of the Department, regardless of their appointment status (General/Ex cadre) are "required to perform such duties as may be assigned to him by the Head of the Department and will be required to work in accordance with the needs of the Department." The Petitioner again replied immediately, reminding Respondent No. 3 that the decision of the Departmental Committee taken on 13.8.1999 to the effect that Shri B.M. Thapliyal would be Store-in-Charge had not been implemented. The Petitioner drew attention to letters of the University dated 23rd February, 1988 and 4th June, 1987 to the effect "that a person who has been appointed against specialised post would not be allowed to undertake the work of other specialised post." These submissions were reiterated to the Head of the Department by the Petitioner in his letter dated October 25, 1999.

3. A Memorandum dated 5th November 1999 was issued to the Petitioner calling upon him to Show Cause as to why action should not be initiated against him for his not attending the duties assigned by the Head of the Department. Both sides appear to have resolutely adhered to their respective stands. A Disciplinary Inquiry appears to have been instituted. However, by the Orders of Hon'ble A.K. Sikri, J. dated 8.5.2000, it was recorded that if the Petitioner even at that point of time started discharging the duties assigned to him, the proposed disciplinary action would be withdrawn. It is not in controversy that Petitioner has acted on this offer and has started performing the duties of Store-in-Charge, without prejudice to the rights and contentions in the Writ Petition.

4. The centre of the dispute, therefore, is the question of whether the Petitioner had been appointed to an ex-cadre post or not. It is not in dispute that at the time when he had responded to the advertisement issued by the Respondents, the Petitioner was already serving with the Respondents as a Senior Technical Assistant (GLC-HPLC Scintillation - Counters). The University Grant Commission had made a special sanction for the development of the Centre of Advance Study Programme in Zoology and it was pursuant thereto that the Executive Council had resolved that three posts of Senior Technical Assistant, one each for Electron Microscopy, Radionuamassy and handling of GLC-Counters should be filled up by open recruitment . There is no explanation from the Respondents as to why the Petitioner was not simply transferred to the new assignment, and the formalities, expense and ragmarole was needlessly taken. The Respondents have invited applications for the following posts.

   Sr. No.          Department/Centre      Designation
-------          -----------------      -----------
11               Zoology                *Two Senior Technical
                                        Assistants (**) (one each
                                        for the Electron Microscopy
                                        and handling GLC counter)   

 

 (**) Tenure of the posts at present is up to 1989 but is likely to continue on permanent basis.  

 

 5. The Essential Qualification was B.Sc. (General) Group A and B. and the desirability was 5 years experience in handling instruments like GLC and HPLC.  

 

 6. After interviewing the Petitioner he was appointed as Senior Technical Assistant in the Department of Zoology on the following conditions:  

   

 1. The appointment is temporary for the present (i.e. until 1989).  

 

 2. The appointment will take effect from the date you assume charge as Senior Technical Assistant.  

 

 3. You will continue to be governed by the conditions of service and conduct rules of the University Non-Academic Employees in force from time to time.  
 

 
4. Your earlier service in the University will be counted for purposes of leave and retirement benefits etc. provided that it is without break.  

 

 5. Your pay will be fixed in accordance with the rules and for which you are required to exercise your option for pay fixation within one month from the date of issue of the letter.   

 

7. After the Petitioner's appointment, his confirmation from the University is dated 18/19th May, 1994, in respect of the Petitioner is against his designation of Senior Technical Assistant (GLC-Counter) with effect from 10.3.1988. It is not in dispute that till 4th October, 1999, the Petitioner was discharging the duties of Senior Technical Assistant (GLC-Counter). The Petitioner had also placed on the record a letter dated 1st February, 1990 addressed to Respondent No. 3 which reads as follows:-

069092

Estab. III/Zool-23A/PF/901/

Delhi, the 1st February, 1990.

The Head,

Department of Zoology,

University of Delhi,

Delhi-110007.

Dear Sir,

Please refer to your endorsement dated 24.1.1990 on the representation of Sh. Bajrang Pratap Singh, Senior Technical Assistant (Radionuamassy) for protection of his pay at par with Sh. Ved Bhushan Sharma, Senior Technical Assistant (GLC Counter & HPLC), I am to inform you that since Shri B.P. Singh is holding separate cadre, he has no claim for protection of his pay at par with Sh. V.B. Sharma.

Sh. B.P. Singh may please be informed accordingly.

Your faithfully,

Sd/-     

B.B. Gupta

Assistant Registrar (Estab.)

8. On a consideration of all these facts it is not possible to accept the contention of the Respondents that the appointment of the Petitioner as Senior Technical Assistant (GLC-Counter & HPLC) was not in respect of an ex cadre post. As already observed above, the question which immediately arises is why the Respondents did not simply transfer the Petitioner to the duties of Senior Technical Assistant (GLC-Counter & HPLC) if they were empowered to do so. The answer can only be that the scope of these duties, as well as the qualifications were not identical to those in the cadre of Senior Technical Assistant. Once this conclusion is arrived at, it will at once become evident that the Respondents' reliance on the authority of the Head of the Department to assign any other duties from time to time to Technical Assistant is wholly misplaced. This right and power is relatable only to those persons who are within the cadre.

9. The fallacy in the Petitioner's stand and assumption is also discernible from the fact that the qualification for a Senior Technical Assistant is as follows:-

Minimum Higher Secondary or an equivalent Examination, with Science subjects. Five years' experience as Technical Assistant. Selection is to be made on the basis of Seniority-cum-efficiency.

10. It will be recalled that the Advertisement for the post to which the Petitioner was appointed specified B.Sc. (General) Group A and B along with five years experience in handling instruments like GLC and HPLC. It was obviously felt that the requirements of the new post could not be met from the existing cadre of the Senior Technical Assistants and higher qualifications as well as specialised work experience was essential.

11. This position and conclusion cannot change merely because the machines which were to be operated upon by the Petitioner had stopped functioning. Even on this question a controversy has been generated. It has been alleged by the Petitioner that a sanction of U.S. $5841.38 had been approved by the University for the repair of the Scintillation Counter as far back as in November, 1999. The validity of the explanation for Respondents' failure to utilise these funds for repairing the machines does not call for consideration in the present petition. However, since the Petitioner was appointed to an ex cadre post, the mere fact that the apparatus on which he was to work had become disfunctional does not entitle the Respondents to transfer him out of the ex cadre post and assign him other duties contrary to his consent. Having been directly recruited to the ex cadre post, the Petitioner has already foregone the promotional avenues and all other benefits that were available to him in the cadre of Senior Technical Assistant. The Respondents have argued that if the machines are not in operation they may have to abolish the ex cadre post to which the Petitioner was appointed. The legitimacy of such a decision, if and when taken, does not also fall for a decision in these proceedings.

12. For all these manifold reasons, I am satisfied that the Petition is well-founded. In these circumstances, the impugned Order dated 4.10.1999 transferring the Petitioner from the ex cadre post of Senior Technical Assistant (GLC Counter and HPLC) to the post of Store-in-Charge in the cadre of Senior Technical Assistant is quashed. Since the Respondents have already stated that if the Petitioner starts discharging the duties assigned to him, and since the Petitioner had submitted to this demand without prejudice to his contentions to the present Writ Petition, the disciplinary action initiated against him for not joining the post of Store-in-Charge in terms of Memorandum dated 27.1.2000 is also quashed. The Petitioner will be entitled to all consequential and ancillary reliefs.

13. The Writ Petition as well as C.Ms. 2876/2000 and 9489/2000 stand disposed off.

14. There shall be no order as to costs.