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Shiva Nand Jha (Dr.) Vs. State of Madhya Pradesh (Through Chief Secretary, Government of Madhya Pradesh) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1970)ILLJ530MP
AppellantShiva Nand Jha (Dr.)
RespondentState of Madhya Pradesh (Through Chief Secretary, Government of Madhya Pradesh) and ors.
Cases ReferredSharangdhar Sharma Pathak v. State of Madhya Pradesh
Excerpt:
.....act and that if he failed to do so he would be deemed to have been absorbed in the vishwa vidyalaya service. on 15 october 1965, the deputy secretary to government in the agriculture department addressed a letter to the registrar of the vishwa vidyalaya saying that it should be clearly indicated to the employees on deputation that if they did not choose to remain in the vishwa vidyalaya service and reverted to the state government service, they would have to face retrenchment as it was not possible for the government to absorb all the employees. the failure to inform the petitioner of the terms and conditions of the vishwa vidyalaya service and the circulars issued by the government about retrenchment brought about a situtation in which the option given to him under section 55(2)(a) of..........who went to the visiwa vidyalaya on deputation, an option to revert to their services under the state government. this option had to be exercised by the employee before the expiry of the period of deputation, that is to say, before the expiry of two years from 1 december 1964. if the employee did not exercise the option, then according to section 55(2)(a) he was deemed to have been absorbed in the service of the vishwa vidyalaya and is thereafter governed by the terms and conditions regulating the services under the vishwa vidyalaya.2. even before the transfer of his services on deputation to the vishwa vidyalaya and during that period, the petitioner represented from time to time to the state government for his inclusion in the gradation list of the education department for the.....
Judgment:
ORDER

P.V. Dixit, C.J.

1. The petitioner in this application under Article 226 of the Constitution was on 1 December 1964, Professor of Economics, Agriculture College, Rewa. On 1 October 1963, the JawaharlalNehru Krishi Vishwa Vidyalaya Act, 1963, enacted for the establishment and incorporation of the Viahwa Vidyalaya came into force. By virtue of Section 55 of the Jawaharlal Nehru Krishi Vishwa Vidyalaya Act, 1963 (hereinafter called the Act), the Agriculture College, Rewa, stood transferred to the Vishwa Vidyalaya. The Government employees, who were working in or were attached to the college and its research section,became the employees of the Vishwa Vidyalaya from 1 December 1964. These employees were treated as on deputation to the Vishwa Vidyalaya for a period of two years from 1 December 1964, as provided by Section 56(2)(aa) of the Act as amended by the Jawaharlal Nehru Krishi Vishwa Vidyalaya (Amendment) Act, 1965. The amended Section 55(2)(a) gave to the Government employees, who went to the Visiwa Vidyalaya on deputation, an option to revert to their services under the State Government. This option had to be exercised by the employee before the expiry of the period of deputation, that is to say, before the expiry of two years from 1 December 1964. If the employee did not exercise the option, then according to Section 55(2)(a) he was deemed to have been absorbed in the service of the Vishwa Vidyalaya and is thereafter governed by the terms and conditions regulating the services under the Vishwa Vidyalaya.

2. Even before the transfer of his services on deputation to the Vishwa Vidyalaya and during that period, the petitioner represented from time to time to the State Government for his inclusion in the gradation list of the Education Department for the keeping of his lien and for fixation of his pay. The petitioner says that he never received any replies to his representations. While he was on deputation in the Vishwa Vidyalaya, the petitioner asked the authorities of the Vishwa Vidyalaya to inform him of the terms and conditions governing the services under the Vishwa Vidyalaya. By a letter dated 14 March 1966, he was informed by the Registrar of the Vishwa Vidyalaya that the terms and conditions governing the services under the Vishwa Vidyalaya were being finalized and that when this was done a copy of the same would be made available to him. The applicant was, however, never informed of the terms and conditions of service under the Vishwa Vidyalaya. On the other hand, sometime in November 1966, the Deputy Controller of the Vishwa Vidyalaya addressed a latter to the Principals of all Agriculture and Veterinary Colleges saying that no clarification should be given to any employee on deputation to the Vishwa Vidyalaya about the terms and conditions of absorption in the Vishwa Vidyalaya and that they should be told and 'asked to note' that he should exercise his option on the basis of the provisions of the Act and that if he failed to do so he would be deemed to have been absorbed in the Vishwa Vidyalaya service. On 15 October 1965, the Deputy Secretary to Government in the Agriculture Department addressed a letter to the Registrar of the Vishwa Vidyalaya saying that it should be clearly indicated to the employees on deputation that if they did not choose to remain in the Vishwa Vidyalaya service and reverted to the State Government service, they would have to face retrenchment as it was not possible for the Government to absorb all the employees. This letter was followed by another letter addressed by the Secretary to Government in the Agriculture Department reiterating the stand taken by the Government about the retrenchment of reverting employees and suggesting that those who had elected to revert to Government service should reconsider their option. On 19 November 1966, the Secretary sent to the Registrar a draft of the retrenchment notice to be served on the employees desirous of returning to Government service. On 24 September 1966 the petitioner, with reference to the representation made by him and the clarification sought by him about the terms and conditions of service under the Vishwa vidyalaya and the circulars issued by the Government about retrenchment of reverting employees, addressed the following letter to the Registrar:

With reference to the above, I am to say that is the absence of decision on the above two references and in view of confusion as to whether the period of option expires on 30 November 1966 in terms of the Jawaharlal Nehru Krishi Vishwa Vidyalaya Act or on 1 October 1966 in terms of the Circular No. 5692/7868/XIV I, dated 15 October 1955, from the Deputy Secretary to Government, Madhya Pradesh, Agriculture Department, as also in the absence of the terms and conditions of service under the Vishwa Vidyalaya and foreign service terms and conditions for the period of deputation to the Vishwa Vidyalaya in terms of the Act, as communicated under your demi-official letter No. 2904/Estt, dated 14 March 1966, as also the uncertain trends in the Viahwa Vidyalaya, I hereby opt for the service under the State Government of Madhya Pradesh in whatever departments my lien may virtually be deemed to belong, i.e., Education or Agriculture. I prefer an equivalent post in Education Department, in which my services originated.

This option will, however, not invalidate the two representations mentioned above which may be decided quickly on their own merits.

3. By this application under Article 226 of the Constitution, the petitioner first sought a writ of certiorari for quashing the circulars issued by the Government about retrenchment of reverting employees and about serving on them a notice of retrenchment. He also originally prayed that a direction be issued to the State for him employment under the State. But, later on, during the course of hearing of the petition, the applicant a mended the petition so as to urge that the latter addressed by him to the Registrar on 24 September 1966 could not be treated as containing a valid exercise of the choice given to him by Section 55(2)(a) of the Act of whether continuing with the Vishwa Vidyalaya or reverting to employment under the State, and prayed for a declaration that as he had not exercised any valid option in terms of Section 55(2)(a), he has become absorbed in the service of the Vishwa Vidyalaya on the expiry of two years from 1 December 1964.

4. Sri Tankha, learned Counsel for the petitioner, urged that the letter, which the petitioner addressed to the Registrar on 24 September 1956, showed that when the petitioner stated therein that he would 'opt for the service under the State Government,' he did so not in the exercise of the right of option given to him by Section 55(2)(a) but by way of compulsion. It was said that in the said letter the petitioner did not say that he would as an alternative to remaining in theVishwa Vidyalaya service go back to the, State service to face retrenchment; what he wanted was employment or service under the State and when the petitioner was told by the circulars issued by the Government that on reverting to the Government, service he would be retrenched, the option given to him by Section 55(2)(a) of the Act, namely, whether to continue with the Vishwa Vidyalaya on the terms andconditions on which he come to the Vishwa Vidiyalaya on 1 December 1964 or whether these conditions remaining the same he should go back to the State service was in effect taken away; and that thus the conditions for the validity and effectiveness of the exercise of option under Section 55(2)(a) of the Act did not exist, and if in the absence of those conditions the petitioner wrote the letter that he did on 24 September 1966, It could not be treated as a letter embodying the option of the petitioner to ' revert to the State service,' to face retrenchment. Learned councel relied on Sharangdhar Sharma Pathak v. State of Madhya Pradesh, Bhopal, and Anr. 1968-II L.L.J. 268.

5. In our judgment, the contention advanced on behalf of the petitioner must be given effect to. As has been held in the decision cited by the learned Counsel, for the validity of an option it is essential that the party opting should be cognizant of his right; the party must have the knowledge of his or her right to opt and of those circumstances which would influence the exercise of option. The person to whom an option is given must be left to his own free will to take or do one thing or another. Under Section 55(2)(a) of the Act, the option which was given to the petitioner was whether he should continue with the Vishwa Vidyalaya or whether he should go back to the State service; the choice given by Section 55(2)(a) was not between remaining with the Vishwa Vidyalaya and facing retrenchment. Now, here the petitioner was never informed of the terms and conditions of his service under the Vishwa Vidyalaya. By the letter which he addressed to the Registrar on 24 September 1966, he did not say that he would revert to Governments service unconditionally. On the other hand, in that latter he made it clear that he would prefer employment in the Education Department and that the representations, which he had made with regard to gradation list and fixation of pay, should be decided early. The failure to inform the petitioner of the terms and conditions of the Vishwa Vidyalaya service and the circulars issued by the Government about retrenchment brought about a situtation in which the option given to him under Section 55(2)(a) of the Act was practically nullified and he was compelled to say that he would leave the Vishwa Vidyalaya service and revert to Government service or employment. The letter dated 24 September 1966 cannot in any sense be regarded as expressing the desire of the petitioner to revert to Government service and face retrenchment, or as embodying a valid and effective exercise of the choice given to him by Section 55(2)(a) of the Act.

6. If, as we think, the petitioner did not validly exercise the option given to him by Section 55(2)(a) of the Act within two years of 1 December 1964, then he must be regarded as having become an employee of the Viahwa Vidyalaya and having been absorbed in the service of the Vishwe, Vidyalaya with effect from the expiry of two years from 1 December 1904.

7. The result is that this petition is allowed, and it is declared that the applicant has became an employee of the Jawaharlal Nahru Krishi Vishwa Vidyalaya and has been absorbed in the Vishwa Vidyalaya with effect from the expiry of two years from 1 December 1964. The petitioner shall have costs of this application from the respondent State and the respondent Vishwa Vidyalaya. Both the respondents shall bear equally the burden of costs andconsel's fee which is fixed at Rs. 200. The outstanding amount of security deposit shall be refunded to the petitioner.


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