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2023 Supreme(MP) 132
IN THE HIGH COURT OF MADHYA PRADESH
Vivek Agarwal, J.
Ravindra Kumar Yadav (Dr.) & Another v. The State of Madhya Pradesh & Others
Writ Petition No. 9730 of 2019;
Decided on 5.4.2023
Anshuman Singh for petitioners; Manas Mani Verma, Government Advocate for respondents No. 1 and 2; Nikhil Bhatt for respondent No. 3; L. C. Patne for respondent No. 4.
Headnote:
(1) Vishwavidyalaya Adhiniyam, 1973 (M. P.) -- Ss. 4 (xx) and 18 -- term 'teachers of the university' -- includes other persons as may be appointed for imparting instructions or conducting research -- it is comprehensive definition -- includes post of Director (Sports) which bears responsibility to impart instructions in physical education -- even if Director (Sports) is not teaching post and does not impart instructions, it will be covered u/s. 18 which deals with other officers. [Para 10
(2) Vishwavidyalaya Adhiniyam, 1973 (M. P.) -- Ss. 4 (xx), 18 and 49 (2) -- S. 49 (2) prescribes constitution of committee for selection -- appointment of officer covered u/s. 4 (xx) or 18 is to be made in terms of provisions contained in S. 49 (2). [Para 11
(3) Vishwavidyalaya Adhiniyam, 1973 (M. P.) -- S. 49 (2) -- post of Director (Sports) -- Statute 20 clearly provides for filling post of Director, Physical Education by following provision of S. 49 (2) -- respondents No. 1, 2 and 3 could not have filled post of Director, Physical Education by transfer on deputation without following procedure prescribed u/s. 49 (2) -- absence of material to show that Business (Allocation) Rules can transgress Act which is statutory in nature -- such procedure cannot be tampered by State Government in name of Business (Allocation) Rules -- respondent/State appointed private respondent No. 4 as Director, Physical Education without consent of university and without any requisition from university for such appointment from outside agency, namely, employee of State Government -- order of deputation arbitrary and cryptic -- cannot be given seal of approval -- University free to appoint appropriate person after following due process as prescribed under Act and Statute framed thereunder. [Paras 12 to 14
¼1½ fo'ofo|ky; vf/kfu;e] 1973 ¼e-iz-½ &&/kkjk 4 ¼chl½ rFkk 18 && in ^fo'ofo|ky; dk v/;kid* && ,sls vU; O;fDr lfEefyr gSa tks f'k{k.k nsus vFkok xos"k.kk djus ds fy, fu;qDr fd, tk,¡ && ;g O;kid ifjHkk"kk gS && lapkyd ¼[ksy½ dk in lfEefyr gS] ftl ij 'kkjhfjd f'k{kk esa f'k{k.k nsus dk mÙkjnkf;Ro gksrk gS &&lapkyd ¼[ksy½ f'k{k.k dk in ugha gks vkSj f'k{k.k ugha nsrk gks rc Hkh og/kkjk 18 ds v/khu vk,xk] tks vU; vf/kdkfj;ksa ds laca/k esa gSA
[iSjk 10
¼2½ fo'ofo|ky; vf/kfu;e] 1973 ¼e-iz-½ &&/kkjk 4 ¼chl½ 18 rFkk 49 ¼2½ &&/kkjk 49 ¼2½ esa p;u ds fy, lfefr dk xBu fofgr gS &&/kkjk 4 ¼chl½ vFkok 18 ds v/khu vkus okys vf/kdkjh dh fu;qfDr/kkjk 49 ¼2½ esa varfoZ"V micaèkksa ds vuqlkj dh tkuk gksrh gSA [iSjk 11
¼3½ fo'ofo|ky; vf/kfu;e] 1973 ¼e-iz-½ &&/kkjk 49¼2½ && lapkyd ¼[ksy½ dk in && ifjfu;e 20 esa lapkyd] 'kkjhfjd f'k{kk dk in/kkjk 49 ¼2½ ds mica/k dk vuqlj.k djds Hkjus dk Li"V mica/k gS && izR;FkhZx.k Ø-1] 2 rFkk 3/kkjk 49 ¼2½ ds v/khu fofgr izfØ;k dk vuqlj.k fd, fcuk] izfrfu;qfDr ij LFkkukarj.k }kjk lapkyd] 'kkjhfjd f'k{kk dk in ugha Hkj ldrs Fks && ;g n'kkZus ds fy, lkexzh dk vHkko fd dkjckj ¼vkcaVu½ fu;e vf/kfu;e dk] ftldh izÑfr dkuwuh gS] vfrya?ku dj ldrs gSa && jkT; ljdkj }kjk dkjckj ¼vkoaVu½ fu;eksa ds uke ij bl izfØ;k esa NsM+NkM+ ugha dh tk ldrh && izR;FkhZ@jkT; us] fo'ofo|ky; dh lgefr ds fcuk] izkbosV izR;FkhZ Ø-4 dks lapkyd] 'kkjhfjd f'k{kk fu;qDr fd;k && izfrfu;qfDr dk vkns'k euekuk vkSj xw<+ && vuqeksnu ugha fd;k tk ldrk && fo'ofo|ky; vf/kfu;e rFkk rn/khu fojfpr dkuwu ds v/khu ;Fkk fofgr lE;~d izfØ;k dk vuqlj.k djus ds mijkar mi;qDr O;fDr dks fu;qDr djus ds fy, Lora=A [iSjk 12 ls 14
ORDER
1. This petition is filed by the petitioners being aggrieved of order dated 9.3.2019 (Annexure-P/6) whereby private respondent No.4-Dr. Ramesh Prasad Shukla was given posting as Director (Sports) at Rani Durgawati Vishwavidyalaya, Jabalpur on deputation. His names appears at serial No.47 in the impugned order (Annexure-P/6).
2. Petitioners' contention is that they are working as Professor and Assistant Professor in the Department of Physical Education in RDVV, Jabalpur. The posts are to be filled by the university in terms of the provisions contained in section 18 of the M.P. Vishwavidyalaya Adhiniyam, 1973 (hereinafter referred to as 'the Adhiniyam of 1973'). It is submitted that since the post of Sport Officer will fall in the definition of 'other Officers' provided in section 18 of the Adhiniyam of 1973, therefore, it is to be filled in terms of the provisions contained under section 49(2) of the Adhiniyam of 1973 by constituting a committee as prescribed in the said provision i.e. section 49(2) of the Adhiniyam of 1973. Thus, the order (Annexure-P/6) as far as it relates to private respondent No.6 is bad in law.
3. Shri Manas Mani Verma, learned Govt. Advocate, submits that State Government has passed the said order and has posted private respondent to the university which does not suffer from any infirmity.
4. Shri L.C. Patne, learned counsel for respondent no.4, has drawn attention of this Court to the Business (Allocation) Rules framed by the State of Madhya Pradesh in exercise of powers conferred by Clauses (2) and (3) of Article 166 of the Constitution of India. He submits that higher education is dealt with in Chapter -XXXVIII. Under Chapter -XXXVIII (A)-11. Universities and all incidental matters including development programmes, opening of faculties and grants from UGC is covered. It is submitted that as per entry-17, all matters relating to the service with which the department is concerned (other than matters allotted to the Finance Department and the General Administration Department) e.g. appointments, posting, transfers, pay, leave, pension, promotions, provident funds, deputation, punishments and memorials are within the domain of Higher Education Department, therefore, when this is read with F.R. 110 of the Fundamental Rules which authorises Government to transfer a Government servant to foreign service, it is transfer by deputation, therefore, no indulgence is required in the hands of the Court and the impugned order be sustained without any interference.
5. Shri Manas Mani Verma, learned Government Advocate, as per the directions of this Court, has produced photocopy of the proposal which was mooted by the Government. This appears to be a file from the Office of the Commissioner, Higher Education, Madhya Pradesh, Bhopal bearing No.255/Shakha 02/19. Heading is Shekshanik Samvarg Antargat Sthanantaran Prastav. Vide this proposal persons whose names are mentioned in column No.2 working on different posts of Assistant Professor/Professor/Associate Professor have been transferred from various Government Colleges mentioned in column No.3 to various Government Colleges mentioned in column No.4.
6. Name of private respondent No.4 appears in this proposal at serial No.27 wherein he is shown as Sports Officer working at Government Model Science College, Jabalpur from whom a proposal was made to transfer him as Director (Sports), Rani Durgawati Vishwavidyalaya, Jabalpur. Name of private respondent appears at serial No.27. There is no mention of transferring the private respondent on deputation as is mentioned in the impugned order (Annexure-P/6) at serial No.47. Thus, it is evident that words 'on deputation' have been inserted in the transfer order (Annexure-P/6) though there was no such proposal as has been brought on record by Shri Manas Mani Verma, learned Govt. Advocate.
7. This proposal was forwarded by the Additional Commissioner, Higher Education, it was signed by the Commissioner, Higher Education and thereaf
