Shiv Kumar Sharma vs University Of Delhi And Ors.
1995 Latest Caselaw 893 Del

JUDGMENT

Vijender Jain, J.

(1) This petition challenges the validity of the resolutions of Executive Council dated 29.4.75 and 28.4.76.

(2) Mr. G.D. Gupta, learned Counsel for the petitioner has argued that the petitioner was to be assigned the seniority from 4.8.58 when he was appointed as 'Senior Laboratory Assistant' though he was performing the duty of Clerk Typist from the date of his first appointment to the date when he was transferred in public interest as Clerk Typist from 1.1.64.

(3) The short controversy in this writ petition is as to whether transfer of the petitioner from the cadre of 'Senior Laboratory Assistant' to 'Clerk Typist' was in public interest or at the behest of the petitioner. In this context Mr. Gupta has argued that the petitioner who was performing the duties of Clerk typist since his appointment could not have opted for transfer as the pay scale at the relevant time of the two categories of posts, i.e. Clerk Typist and Senior Laboratory Assistant were similar. Another argument advanced by the learned Counsel for the petitioner is that if the transfer was voluntary then the petitioner could not have written the letter dated 10.12.63 filed by the petitioner along with writ petition in which the petitioner, inter alia, has mentioned that he was taking the typing test as per the order of the Head of Department of Physics and Astrophysics and he had further written in the said letter that he hopes that he shall not be put to a loss by taking that test.

(4) Mr. Gupta has argued that it was in this background when the writ petition came up for hearing on 3.2.76 adjournment was sought to place the letter dated 10.12.63 and other facts for the consideration of the Executive Council afresh. I have perused the order sheet and what Mr. Gupta has stated seems to be correct in view of the order passed on 3.3.76 by the Court in which the statement of Mr. Gupta is recorded that he had written to the University and was awaiting action on his letter. It seems that the Executive Council though considered the letter of the petitioner dated 10.12.63 but reiterated the stand which has earlier been taken pursuant to the decision taken on 29.4.75 in the earlier meeting of Executive Council. From the bare reading of the resolution dated 29.4.75 it is manifestly clear that the petitioner was denied the benefit of his previous service from 1958 on the ground that his transfer to the clerical side was not made in any public interest. It is important to quote the relevant para of the said resolution :- "IN this connection, the Committee noted that the fact that Shri Shiv Kumar Sharma had taken the type writing test conducted by the Department of Physics and Astrophysics on 10.12.1963 was enough evidence to indicate that he was himself interested to change over to clerical side and as informed by the Head of the Department of Physics and Astrophysics vide his letter dated 9.1.1964, Shri Sharma took over as Clerk-typist in the Centre for Advanced Studies in the Department of Physics and Astrophysics w.e.f. 1.1.1964 and that his transfer to the clerical side was not made in any public interest."

(5) It is strange that after the representation was made by the petitioner to the Executive Council of the respondent, inter alia, bringing to their notice specific letter dated 10.12.63 written by the petitioner, which is as follows :- "I have already discussed the matter that it will not be beneficial for me to transfer over to clerical side after such a long period though I have been performing the duties of clerk typist since my appointment. As per your orders, I am taking typing test only to obey them. I hope I shall not be put to a loss."

(6) The Executive Council still chose to ignore the letter and simply reiterated its earlier stand.

(7) The rejection and non-consideration of this vital aspect in which the petitioner had specifically mentioned that he was taking the test obeying the instructions of the superiors was given a complete go-by by the Executive Council which deprived the petitioner of his valuable right as his transfer was taken being voluntary by the University Authorities which was detrimental to the interest of the petitioner. The earlier resolution of the Executive Council specifically mentions that the petitioner was himself interested to seek a transfer and, therefore, the case of the petitioner was rejected. When the petitioner placed before the Executive Council letter dated 10.12.63 which repelled the basis of earlier decision of the Executive Council, non-consideration of this vital aspect by the Executive Council in its subsequent meeting makes the order of the Executive Council based on non- application of mind by the respondent. Treating the transfer of petitioner voluntary and not in public interest is illegal.

(8) In view of the above discussion, I quash both the resolutions dated 29.4.75 and 28.4.76 and the letter dated 25.5.76 of the respondent. The result is that the petitioner shall be given seniority from the date of his initial appointment, i.e. from 4.8.58 in the cadre of clerical typist. He shall also be entitled to all consequential benefits and promotions. Rule is made absolute. No order as to costs. Petition allowed.