Jharkhand High Court
Awdhesh Kumar vs Vice-Chancellor on 25 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 843 of 2023
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Awdhesh Kumar S/o Shankar Yadav, resident of Village Mandhata,
PO Sono, PS Sono, District Jamui, Bihar, 811314; presently residing
at Professor Quarter, House No.14, Horticulture College, Village, Binj
(Khutpani), PO Bhoya and PS Pandrashali, District West Singhbhum,
Jharkhand, 833201.
... Petitioner
-versus-
1. Vice-Chancellor, Birsa Agriculture University, Ranchi.
2. Director, Administration, Birsa Agriculture University, Ranchi.
3. Dean, Faculty of Agriculture, Birsa Agriculture University, Ranchi.
... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Petitioner : Mr. Saurabh Shekhar, Advocate
For the Respondents : Mr. A. Allam, Sr. Advocate
Mr. Abhijeet Kumar Singh, Advocate
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ORDER
RESERVED ON 28.02.2023 PRONOUNCED ON 25.08.2023
By filing this writ petition, the petitioner prays to quash the order
as contained in Memo No.F17-263(A)/2014/BAU(VC)/610/Kanke dated
09.02.2023 (Annexure 6 to the writ petition), whereby the petitioner has been
transferred from the post of Assistant Professor-cum-Junior Scientist,
Department of Basic Science (Statistics), Horticulture College, Khuntpani,
Chaibasa to Tilka Manjhi Agriculture College, Godda.
2. Learned counsel appearing on behalf of the petitioner submitted
that admittedly the petitioner is not in permanent service, rather was appointed
on contractual basis for a period of six months, which was extended from time
to time. The advertisement dated 14.08.2018, pursuant to which the petitioner
was appointed was for the post of Assistant Professor-cum-Junior Scientist in
different colleges on the basis of walk-in-interview. There were separate
process for selection in different colleges, including the Horticulture College,
Khuntpani, Chaibasa. The candidates had to opt for the college where they
wanted to apply and the petitioner had opted for Horticulture College,
Khuntpani, Chaibasa. Petitioner was appointed on contractual basis and was
serving there, but suddenly, by the impugned order, petitioner has been
transferred to Tilkamanjhi Agriculture College, Godda. He submits that since
the nature of appointment of the petitioner is contractual, petitioner could not
have been transferred to Tilka Manjhi Agriculture University, as in his letter of
appointment, there was no provision of transferring the petitioner. Since there
was no provision for transfer, the act of transferring the petitioner by the
respondents is bad. He submits that being a contractual employee, petitioner
cannot be equated with the regular employees of the respondents and his
conditions of service will not be governed by the statutory rules framed by the
employer. He submits that the status of the petitioner qua the employer would
be governed by the contract and since the contract does not provide for
transferring the petitioner, he could not have been transferred. As per the
petitioner, contractual engagement does not give a status of regular employee
and he is governed by the terms of the contract. As per the petitioner, though it
is settled principle that transfer is incidence of service, yet appointment on
contractual basis is not a service as it does not attain such status. In support of
his contention, he refers to judgment of the Hon'ble Supreme Court in the case
of State of Himachal Pradesh & Others versus Raj Kumar & Others
reported in (2022) SCC OnLine SC 680, and the order dated 04.10.2021
passed by this Court in the case of Anita Prasad versus The State of
Jharkhand & others in L.P.A. No.76 of 2021.
3. Learned senior counsel appearing on behalf of the respondents
submits that though the advertisement was published in respect of different
colleges, yet, admittedly all the colleges were under the Birsa Agricultural
University. The appointment was, admittedly, contractual, but since the
transfer was made from one unit of Birsa Agricultural University to another, it
cannot be said that the transfer order is bad. He submits that contract
appointment can also be said to be service and transfer being incidence of
service is impliedly applicable in the case of this petitioner as well. As per the
respondents, since there is no specific bar for transferring the petitioner and
there is no malafide in the said transfer, the same cannot be interfered with. It
is his contention that since there was a need of Assistant Professor at Tilka
Manjhi Agricultural College, Godda, the petitioner was transferred there.
Lastly, it is submitted that prejudice will not be caused to the petitioner as he
being the resident of Bihar, was residing in the accommodation provided by
the University at Khuntpani, Chaibasa, and he will also be provided
accommodation at Tilka Manjhi Agriculture College, Godda.
4. An advertisement was published on 14.08.2018 inviting an
application for engagement of Assistant Professor-cum-Junior Scientist in
different departments of Ranchi Agriculture College, Ranchi Verterinary
College and 7 (seven) New colleges on contract basis for a period of six
months with a provision for extension as per the University Act and Statute.
The advertisement was issued by the Birsa Agriculture University. All the posts
in all the units were advertised separately. There were 9 (nine) posts
advertised in Ranchi Veterinary College, Kanke, Ranchi, which was numbered
at Sl. 'A'. Sl. 'B' was advertisement of 90 (ninety) posts each in Agricultural
College, Garhwa, Godda, Deoghar and Ranchi. Sl. 'C' was for 20 (twenty)
posts at Horticulture College, Khuntpani, Chaibasa. Further there were other
posts at other places, which is not relevant for this purpose. The petitioner was
selected and offer of appointment was issued on 16.01.2019 as Assistant
Professor-cum-Junior Scientist on contract basis in Department of Basic
Science, Horticulture College, Khuntpani, Chaibasa. The terms and conditions
was mentioned in the said offer of appointment. The joining of the petitioner
was accepted with effect from 24.01.2019 vide memo No.4897. His tenure was
extended vide memo No.1130 Kanke dated 07.06.2019. Vide order dated
09.02.2023, he was transferred to Tilka Manjhi Agriculture College, Godda.
This transfer order is under challenge.
5. Petitioner was appointed pursuant to advertisement dated
14.08.2018. Though the advertisement was in respect of different agricultural
colleges, advertising several posts, yet all these colleges are under the
umbrella and under direct control of Birsa Agriculture University. The
advertisement issued under the order of the Vice Chancellor of Birsa
Agricultural University. In the said advertisement, nowhere it was mentioned
that the post against which the petitioner has applied, is transferable. The
appointment letter dated 16.01.2019 of the petitioner is at Annexure 2. In the
said appointment letter, it has been mentioned that on the recommendation of
the Selection Committee, the petitioner was engaged as Assistant Professor-
cum-Junior Scientist on contractual basis in the Department of Basic Science
(Statistics), Horticulture College, Khuntpani, Chaibasa under faculty of
Agriculture, Birsa Agricultural University, Kanke, Ranchi. The terms and
conditions of the appointment has been mentioned in the appointment letter.
There were total 12 terms and conditions, which includes the term that the
appointment is contractual and can be terminated by giving one month's
notice. There is an embargo in the appointment letter that the petitioner cannot
claim adjustment against any post of any nature in the University.
Remuneration has also been mentioned in the terms and conditions.
Termination clause is also there. Further, it has been mentioned that if the
petitioner accepts the aforesaid conditions, then only he is directed to report
for duty to join. The aforesaid appointment letter nowhere mentions that being
engaged on contract basis, petitioner can be transferred to any other college.
6. Learned Senior Counsel appearing on behalf of the University
harped upon Chapter XI, particularly, 11.1(iii) of the said Chapter of the
Statute. As per him, the statute of Rajendra Agriculture University, Bihar, 1976
as amended by 31st October, 2004 was approved by the 59th Meeting of the
Board of Management of Birsa Agricultural University to adopt the statute in
the University. As per the learned Senior Counsel, Chapter 11, particularly,
Clause 11.1(iii) gives power to the Vice Chancellor to transfer an employee
from one post to another in the interest of the University. Thus, as per him, the
University has power to transfer even a temporary contractual employee also.
7. Clause 11.1(iii) of Chapter XI of the Statute, definitely gives power
to the Vice Chancellor to transfer employees from one post to another, but the
definition of employee is in Chapter I. In the definition Clause 1.3(iii) the term
'Employees' has been defined as follows: -
DEFINITIONS
1.3 In these Statutes unless there is anything repugnant
to the subject or context-
(i) ...
(ii) ...
(iii) 'Employees' means whole-time employees other than
part-time employees, honorary employees or those paid
from contingencies.
8. This definition clearly suggests that an 'employee' means whole-
time employee. Definition is restricted only to whole-time employees as there
is nothing to suggest that statute had 'included' any other category of
employees within the meaning of whole-time employee. The definition does
not provide to include any other type of employees within the meaning of
whole-time employees. Thus, from the definition, it cannot be said that the
contractual employee would come within the definition of employee.
9. Further, the Hon'ble Supreme Court in the case of State of
Madhya Pradesh and Others versus Sandhya Tomar & Another reported
in (2013) 11 SCC 357, at paragraph 9 thereof has held as under: -
9. There can be no dispute with respect to the settled
legal proposition that in the event that a person is not
appointed on a regular basis, and if his service is not
governed by any statutory rules, he shall be bound by the
terms and conditions that have been incorporated in his
appointment letter. (Vide State of Punjab v. Surinder
Kumar). In such an eventuality, there can be no reason
with respect to why the terms and conditions
incorporated in the appointment letter should not be
enforced against such an employee. In the instant case,
Respondent 1 was temporarily appointed in a project and
thus, she had at no point of time, been appointed on a
regular basis owing to which, she cannot claim any lien
with respect to the said post.
10. In the instant case also, I find that neither in the appointment letter
nor in the advertisement anywhere it has been mentioned that the service of
the petitioner would be transferable nor it was mentioned that the services
would be governed by the statute of the Birsa Agricultural University. Further
as mentioned earlier, the specific terms and conditions of service pursuant to
the contract was incorporated in the offer of appointment and in the last
paragraph of offer of appointment it was mentioned that if only the petitioner
accepts the terms and conditions, he should report for joining. In those
conditions, admittedly, there is no provision for transferring the petitioner.
Petitioner accepted the offer letter with the conditions mentioned therein. Now,
transferring the petitioner will amount to unilaterally imposing a condition,
which was not initially placed before the petitioner. There may be a possibility
that if some clause was placed in the offer letter, petitioner could have
exercised the choice either to accept or refuse the same. Thus, now the
respondents cannot unilaterally incorporate a condition, which was not there in
the offer letter, once the said offer letter is already accepted. Thus, from
conjoint reading of definition of employee in Chapter I, Clause 1.3(iii), and the
advertisement and offer letter, which according to this Court does not include a
contract employee, read with observations made by the Hon'ble Supreme
Court in the case of Sandhya Tomar (supra) at paragraph 9 thereof, the
condition of offer of appointment would be governing the conditions so far as
the petitioner is concerned and he cannot be said to be an 'employee' to be
governed by the statute. Further, nowhere in the appointment letter nor in the
advertisement for the post, it was mentioned that the appointee would be liable
to be transferred and the post was transferable. It is held that the contractual
appointment of the petitioner was not transferable, thus, issuance of the
impugned order contained in Memo No.F17-263(A)/2014/ BAU(VC)/ 610/
Kanke dated 09.02.2023 is bad.
11. Thus, there being merit, I am inclined to allow this writ petition.
The impugned order as contained in Memo No.F17-263(A)/2014/BAU(VC)/
610/ Kanke dated 09.02.2023 is hereby set aside.
12. This writ petition stands allowed. Interlocutory application being
I.A. No.2061 of 2023 also stands disposed of.
(Ananda Sen, J.)
Kumar/Cp-02
