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Sharangdhar Sharma Pathak Vs. State of Madhya Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1968)IILLJ268MP
AppellantSharangdhar Sharma Pathak
RespondentState of Madhya Pradesh and anr.
Excerpt:
.....and said at one place that- in view of the anomalous situation outlined above. 14. we are unable to hold that the applicant validly and effectively exercised his option for reversion to the state service. the requisites essential to an option or election are well-settled......of the j.n. krishi vishwa vidyalaya act was deemed to be on deputation. he was appointed by the state government on emergency basis to the post of agronomist, class i service post, and was allowed to retaus him over his substantiate post in class ii. the government of madhya pradesh informed the vishwa vidyalaya that madhya pradesh public service commission had refused to grant approval to the promotion of the petitioners and asked to take further action in the matter. i.e., to issue reversion orders. the petitioner was advised demonically to proceed on earned leave, as he was to revert to class ii post from that of class i. in this matter also this respondent is in no way concerned.8. the petitioner opted for government service and his option was duly forwarded to the madhya pradesh.....
Judgment:

P.V. Dixit, C.J.

1. By this application under Article 226 of the Constitution, the petitioner seeks a writ of ceritorari for quashing an order of the Vice-Chancellor of the Jawaharlal Nehru krishi Vishwa Vidyalaya, Jabalpur, reverting Mm from his appointment in Class I to Class II service.

2. The matter arises thus. In August 1962, the petitioner joined service in the former State of Madhya Bharat, and was appointed as a Lecturer in Agronomy, He was con-firmed la that post, on 27 November 1968. On 13 September 1956 he was appointed as Agronomists at the Agricultural Research, Institute, Gwaller, in the higher scale of Rs. 300-20--500. According to the return filed by the respondent-State, this appointment in the higher scale was temporary. According to the applicant after the formation of the new State of Madhya Pradesh he was directed to take charge as Professor of Agriculture on 7 October 1958; that there-after for some reason, not made known to him, the Government did not consider his claim for appointment as Professor till August, 1962; that during this same he made various representations to the Government against his susperssesion and also sought permission to apply for posts outside the State; but the Government did not appoint him in Class I service and yet refused to permit him to apply for a post outside the State saying that his services could not be speared.

3. On 29 August 1862, the Government passed an order appointing the petitioner as Professor of Agronomy, Agriculture College, Indore, in Madhya Pradesh Agriculture Service, Class I, in the scale of Rs. 550-550-30-700-70 -E.B. 30-860-25-860. The order stated that the appoinment were temporary until further orders. Thereafter by an order passed in August 1963, the Government declared that the applicant was a departments) promotee to the post of Professor of Agronomy in Madhya Pradesh Agriculture Service, Class I. Then on 27 June 1964, the Government made an order reverting the petitioner to the post of Assistant Agronomist in Madbya Pradesh Agriculture Service, Class II, transferring him from Indore to Jabalpur. The applicant represented to the Government against his reversion and on 7 August 1964, the Government passed an order appointing him as effecting Professor of Agronomy, Agriculture College, Indore, Madhya Pradesh Agriculture Service, Class I. This order mentioned that the appointment was temporary until further orders, After this appointment petitioner became an employee of the Jawaharlal Nehru Krishi Vishwa Vidyalaya. On 19 October 1965, the Deputy Comptroller of the Vishwa Vidyalaya addressed this following communication to the petitioner:

Orders the Vice-Chancellor terminating your appointment in Class I and reposting you as a Lecturer Class II are as under issue as parabely.

I am desired by the Vice-Chancellor to say that yon may apply for leave immediately, as the orders referred to above in Para 1 are be given effect to immediately.

4. The petitioner represented against the order of reversion passed by the Vice-Chancellor without any success. He proceeded on leave and on return from lease he was appointed as Assistant) Director of Agriculture (Seed Certification) in Madhya Pradesh Agriculture Service, Class II.

5. The applicant averred that in the communications, which he received from the Government in reply to the representations he had made against his supersession and reversion, it was suggested that his record was not good and some remarks adverse to him had been recorded in his confidential file, and that he was also informed on 22 July 1964 that Public Service Commission did not agree to his promotion in Class I service. It is the grievances of the petitioner that the 'adverse remarks' were never communicated to him although he repeatedly requested the Government to communicate them and it was on 25 August 1968 that those remarks were communicated to him for the first time. The applicant contends that this delay in the communication of 'adverse remarks' was contrary to the rules, regulations instructions about the communication of adverse remarks to the civil servant concerned.

6. In the return filed by the respondent-State, it has been stated that with the transfer of the Agricultural Education and Research to the Jawaharlal Nehru Krishi Vishwa Vidyalaya under the Jawaharlal Nahru Krishi Vishwa Vidyalaya Act, 1963 (hereinafter referred to as the Act), the petitioner was transferred to the Vishwa Vidyalaya in accordance with Section 55(2) of the Act, and it was only when the Act was amended by the amending Act 24 of 1965, namely, the Jawaharlal Nehru, Krishi Vishwa Vidyalaya (Amendment) Act, 1965, that the applicant, was considered as on deputation to the Vishwa Vidyalaya; and that the university was competent to revert the petitioner under Section 55(2) of the Act as on the date on which the Vice-Chancellor made the order reverting the applicant the Act had act been amended. It has been stated that the applicant himself opted for Government service and was absorbed as Class II officer.

7. The reply of respondent 2, the Vice-Chancellor of the Vishwa Vidyalaya, is:.Sri S.S. Pathak came over to J.N. Krishi Vishwa Vidyalaya on 1 December 1964 and under Section 55(2) of the J.N. Krishi Vishwa Vidyalaya Act was deemed to be on deputation. He was appointed by the State Government on emergency basis to the post of Agronomist, Class I service post, and was allowed to retaus him over his substantiate post in Class II. The Government of Madhya Pradesh informed the Vishwa Vidyalaya that Madhya Pradesh Public Service Commission had refused to grant approval to the promotion of the petitioners and asked to take further action in the matter. i.e., to issue reversion orders. The petitioner was advised demonically to proceed on earned leave, as he was to revert to Class II post from that of Class I. In this matter also this respondent is in no way concerned.

8. The petitioner opted for Government service and his option was duly forwarded to the Madhya Pradesh State Government. The petitioners was subsequently posted as Assistant Director of Agriculture by the Madhya Pradesh State Government. The petitioner during the entire period of his service in J.N. Krishi Vishwa Vidyalaya was on deputation from the State Government Service and the conditions of his service were laid down and regulated by the State Government of Madhya Pradesh.

9. The sole question that arises for determination in this case is as regards the legality of the order passed by the Vice-Chancellor in October 1965 reverting the petitioner. It involves a consideration of the effect of Section 55 of the Jawaharlal Nehru Krishi Vishwa Vidyalaya Act, 1963. That Act was enacted for the establishment and incorporation of the Vishwa Vidyalaya. It came into force on 1 October 1964. Section 55(1) of the Act is as follows:

55. Transfer of property and personnel- (1) As from such date as the State Government may, by notification, specify in this behalf all Government collages imparking instruction in agriculture and veterinary science and animal husbandry for Bachalor's degree or above and all research stations within the State which are operated for carrying out research in agriculture and allied sciences together with lands, hostels and other buildings, furniture, library books, laboratories, instruments, apparatus, appliances and equipments and livestocks belonging to such colleges and stations and the budget programme made for them shall be transferred to and vest in the Vishwa Vidyalaya.

On 28 November 1964, the Government issued a notification specifying 1 December 1961 as the date for the purpose of Sub-section (1).

10. Sub-section (2) (a) of Section 55, an originally enacted, was in the following terms:

(2) On and from tag date of transfer of any college of research station under Sub-section (1) the following consequences shall ensue, namely:

(a) the Government employees working in the college or research station as the case may be shall become file employees of the Vishwa Vidyalaya on the same terms and conditions as were applicable to them immediately before the said date;By the Jawaharlal Nehru Krishi Vishwa Vidyalaya (Amendment) Act, 1965 (24 of 1965), 01. (a) of Sub-section (2) of 3. 65 of the Act was amended by substituting new Clauses (a) and (aa) for aristing C1. (a). Section 55(2) (a) now reads as follows:

(2) On and from the date of transfer of any college or research, station under Sub-section (1) the following consequences shall ensue, namely:

(a) the Government employees--

(i) who ware working in of were attached to the colleges or research stations on the field date, or

(ii) who but for their temporary absence from such colleges or research stations on account of any cause would have been working in or remained attached thereto on the said date; shall become the employees of the Vishwa Vidyalaya and shall be deemed to be absorbed in the service of the Vishwa Vidyalaya with. effect from the expiry of a period of two years from the said date (hereinafter in this sub-section referred to as the aforesaid period) and shall thereafter be governed by the terms and conditions governing the said service under the Vishwa Vidyalaya, unless within the aforesaid period-

(1) any Government employees opts for reversion to his services under the State Government; or

(2) the State Government recalls the Government employee from the said service under Vishwa Vidyalaya: Provided that-

(1) the terms and conditions offered by the Vishwa Vidhalaya to such employees consequent on their absorption In the service of the Vishwa Vidyalaya shall not be less favourable than those applicable to such employees prior to the said date ....

Section 3 of the amending Act provides that the amendment made in Section 65(2)(a) of the Act shall be deemed to have formed part of the principal from the commencement thereof.

11. It will be was that the effect of Sub-secs. (1) and (2)(a)of Section 65 is that as from 1 December 1964 ail Government colleges, institutions and research stations spoken of in Sub-section (1), stood transferred to the Vishwa Vidyalaya. The Government employees who were working or were attached tic the colleges or research stations, 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 beginning from 1 December 1964, as it clear from Clause (aa) of Section 55(2). This clause, which were inserted in Sub-section (3) of Section 55 by the amending Act 24 of 1965, prescribed that during the period of two years the employees referred to la Clause (a) shall be treated as on deputation to the Vishwa Vidyalaya. Clause (aa) of Sub. Section (2) of Section 65 was also deemed to have formed part of the principal Act from the commencement thereof. During this period of two years' deputation, the Government employee could opt for reversion to his service under the State Government. The State Government could also recall the Government employee from his service under the Vishwa Vidyalaya any time during the two years' period of deputation. If the Government employee, who went to the University on deputation under Section 55(2)(a). does not exercise the option given to him of reversion to the State Government's service or is not recalled by the Government, then on the expiry of two years from 1 December 1964 the employee is 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. It is important to note that the authority competent to revert a Government employee on deputation with the Vishwa Vidyalaya from one grade to another is, during the two years' period of deputation, not the Vishwa Vidyalaya but the Government. This follows from the position that during the period of deputation the Government employee sent on deputation remains otherwise the employes of the Government; it is only after the person sent on deputation is absorbed in the service of the Vishwa Vidyalaya that the Vishwa Vidyalaya can take any action affecting the conditions of his service.

12. Now, here, it is not disputed that on 1 December 1964, the petitioner was affecting as Professor of Agronomy, Agriculture College, Indore, in Madhya Pradesh Agriculture Service, Class I. From that date he became an employee of the Vishwa Vidyalaya as a person on deputation to the Vishwa Vidyalaya. During the period of two years' deputation from I December 1964 the Vice-Chancellor of the Vishwa Vidyalaya had clearly to power to revert the petitioner from Class I to Class II service. In that period the power of reversion remained with the Government. As the amendments made in Section 65(2)(c) by the amending Act 24 of 1965 were deemed to have formed part of the principal Act from the commencement thereof, the contention that the Vice-Chancellor was competent to make an order in October 1965 reverting the applicant cannot be accepted in view of the clear provisions of Section 65(2) (a) as amended. If, as has been stated in the returns, the Public Service Commission did not agree to the petitioner's promotion in Class I service, then the Government should have recalled the petitioner from his service under the Vishwa Vidyalaya and then made an order reverting him to Class II service. But the Government made no such order and did not at any time during the two years period from 1 December 1964 pass any order reverting the applicant to Class II service. The impugned order passed by the Vice-Chancellor reverting the applicant from Class I to Class II service was thus wholly without jurisdiction and illegal. The position that than emerged in that during the period of the petitioner's deputation the Government did not recall him and did not even pass any order reverting from Class I to Class II service, and the order passed by Vice-Chancellor reverting the petitioner was of no legal effect whatsoever. Thus the petitioner continued to remain as a deputed employee in Class I service with the Vishwa Vidyalaya till the expiry of two years' period of deputation and thereafter became absorbed in the service of the Vishwa Vidyalaya,

13. It was urged on behalf of the respondents that when the applicant was reverted by the Vice Chancellor's order passed in October 1065 he proceeded on leave and thereafter he himself opted for reversion to State service and, therefore, after having exercised the option for reversion to the State service the applicant could not be regarded as having been absorbed in the service of the Vishwa Vidyalaya after the expiry of two years from 1 December 1964, In this connexion our attention was drawn to Para 16 of the petition and to a latter (annexure 11 to the petition) addressed by the petitioner to the Government in November 1965. In Para. 16 of the petition the petitioner has said:

Your petitioners prooceeded on leave and submitted to the State Government his option for reversion of his services to the State Government. A representation was also submitted by him to the State Government on 17 November 1966 against his being revested by the University.

In the letter, which the petitioner addressed to the Government in November 1965 and which form annexure 11 to the petition, the applicant vehemently protested against his reversion by the University complained against the treatment mated out to him in his service career, and said at one place that-

In view of the anomalous situation outlined above. I have no choice but to revert to the State service due to the following reasons.

14. We are unable to hold that the applicant validly and effectively exercised his option for reversion to the State service. The requisites essential to an option or election are well-settled. For the validity of an option, it is essential that the party opting should cognizant of his right. The party mass 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 in regard to any matter must be left to his own free will to take of do one thing or another. The option, which Section 65(2)(a) gave to a Government employee on deputation to the Vishwa Vidyalaya, was whether he should continue with the Vishwa Vidyalaya on the terms and conditions on which he came to the Vishwa Vidyalaya on 1 December 1964, or whether those conditions remaining the same, he should go back to the State service. If, by reason of any change in the terms and conditions on which the Government employee came to the Vishwa Vidyalaya, the employee is compelled to leave the University service and go back to the State service then it cannot be said that he reverted to the Government service in the exercise of the option given to him by Section 55(2)(a) of the Act. In that case, the reversion would be by way of compulsion and not in the exercise of the right of option. In the letter addressed by the petitioner to the Government in November 1965 protesting against the action of the Vice-Chancellor reverting the petitioner, he said that in the circumstances narrated by him in that letter

I have no choice bat to revert to the State service.

15. The words-' I have no choice ' themselves how that the petitioner was not exercising his option but following a course which he was compelled to adopt by reason of some circumstances. In our judgment , the letter. which the petitioner addressed to the Government in November 1965, cannot in any sence be regarded as embodying a valid and effective exercise of the choice given to him by Section 55(2) (a) of the Act.

16. For all these reasons, our conclusion is that the order passed by the Vice-Chancellor in October 1965 reverting the petitioner from Class I to Class II service is wholly without jurisdiction and invalid, and that the petitioner, who was not recalled by the State Government from the University service during the two years' period of deputation and who did not opt for his reversion to the State service during that period, became absorbed in the service of the Vishwa Vidyalaya on the expiry of two years from 1 December 1964 as officiating Professor of Agronomy in Class I service. The question whether on absorption in the service of the Vishwa Vidyalaya the terms and conditions of the petitioner's service can be varied does not arise for determination in this case.

17. The result is that this petition is allowed, and the order passed by the Vice-Chancellor of the Jawaharlal Nehru Krishi Vishwa Vidyalaya in October 1965 ' terminating the petitioner's appointment in Class I and reposting him as a lecturer in Class II' and thus reverting him from Class I to Class II service is quashed. The petitioner shall have costs of this petition. Both the respondents shall bear equally the burden of costs and the counsel's fee which is fixed at Rs 200. The outstanding amount of security deposit shall be refunded to the petitioner.


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