Madhya Pradesh High Court
Dr.Ramesh Prasad Shukla vs The State Of Madhya Pradesh on 2 May, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:20379
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 2 nd OF MAY, 2025
WRIT APPEAL No. 739 of 2023
DR.RAMESH PRASAD SHUKLA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri L.C. Patne, Advocate through video conferencing with Shri
Abhay Pandey - Advocate for the appellant.
Shri Bramhadatt Singh - Deputy Advocate General for the respondents
No.1 and 2/State.
Shri Aditya Pachori - Advocate for the respondent No.3.
Shri Anshuman Singh, learned counsel for the respondents No.4 and 5.
ORDER
Per: Hon'ble Shri Justice Suresh Kumar Kait, Chief Justice
The present appeal has been filed before this Court on the following
grounds:
"2. That, the Hon'ble Single Judge has also not appreciated the
fact that the writ petition preferred by Respondent No. 5 & 6challenging
the transfer and posting order of the petitioner dated 9.3.2019 (supra)
issued by Respondent No. 2 on the post of Director (Sports) in the
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Respondent No. 3 - University was not maintainable at the instance of
Respondent No. 5 & 6. The Hon'ble Single Judge has not appreciated
that existence of legal right is foundation of writ jurisdiction under
Article 226 of the Constitution of India. The Respondent No. 5 & 6
have miserably failed to point out violation or infringement of any of
their legal right or fundamental right enabling them to knock the door
of this Hon'ble Court challenging the aforesaid order (Annexure P/6).
As averred by the petitioners themselves that the post of Director of
Physical Education is to be filled up from direct recruitment and there is
no channel of promotion, the petitioners avenues of promotion cannot
be said to be adversely affected on account of temporary posting of the
Respondent No. 4 on deputation on the post of Director Physical
Education. Even otherwise, as held by a 5 Judges Constitutional Bench
of the Hon'ble Supreme Court in the case of Ramchandra Shankar
Deodhar & Others v. State of Maharashtra & Others (1974) 1 SCC 317
that mere chances of promotion is not a condition of service of an
employee and can be varied to his disadvantage by any administrative
act. For ready reference, Para 15 of the judgment is being reproduced as
under:-
"15. Re: Ground B: The petitioners and other allocated
Tehsildars from Ex-Hyderabad State had, under the Notification of
the Rajpramukh dated September 15, 1955 all the vacancies in the
posts of Deputy Collector in the Ex-Hyderabad State available to
them for promotion, but under the Rules of July 30, 1959, 50 per
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cent of the vacancies were to be filled by direct recruitment and
only the remaining 50 per cent were available for promotion and
that too on divisional basis. This, according to the petitioners,
constituted variation to their prejudice in the conditions of service
applicable to them immediately prior to the reorganisation of the
States and since such variation was affected by the Rules of July
30, 1959 without obtaining the previous approval of the Central
Government as required under the proviso to Section 115, sub-
section (7) of the States Reorganisation Act, 1956, the Rules of
July 30, 1959 were invalid. This contention of the petitioners we
find difficult to accept. All that happened as a result of making
promotions to the posts of Deputy Collectors division wise and
limiting such promotions to 50 per cent of the total number of
vacancies in the posts of Deputy Collector was to reduce the
chances of promotion available to the petitioners. It is now well-
settled by the decision of this Court in State of Mysore v.
G.B.Purohit [ CA No. 2281 of 1965, decided on January 25, 1967]
that though a right to be considered for promotion is a condition of
service, mere chances of promotion are not. A rule which merely
affects chances of promotion cannot be regarded as varying a
condition of service. In Purohit case the districtwise seniority of
sanitary inspectors was changed to Statewise seniority, and as a
result of this change the respondents went down in seniority and
became very junior. This, it was urged, affected their chances of
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promotion which were protected under the proviso to Section 115,
sub-section (7).This contention was negatived and Wanchoo, J. (as
he then was), speaking on behalf of this Court observed: "It is said
on behalf of the respondents that as their chances of promotion
have been affected their conditions of service have been changed
to their disadvantage. We see no force in this argument because
chances of promotion are not conditions of service". It is,
therefore, clear that neither the Rules of July 30, 1959 nor the
procedure for making promotions to the posts of Deputy Collector
division wise varies the conditions of service of the petitioners to
their disadvantage. The proviso to Section 115, sub-section (7) is
accordingly not attracted and the Rules of July 30, 1959 cannot be
assailed as invalid on ground of non-compliance with that proviso.
3. That, the Hon'ble Single Judge erred in law and on facts in not
appreciating the fact that the instant case was not that of "appointment
by deputation" rather was a case of "transfer on deputation" simplicitor.
Thus, interference by the Hon'ble Single Judge in the case of transfer
and posting of the appellant on the violation of Statute No. 20 & 31 of
Respondent No. 3 --- University is wholly unwarranted and uncalled
for.
4. That, the Hon'ble Single Judge has not appreciated the fact that
under the provisions of M.P. Business Allocation Rules framed by His
Excellency, the Governor of Madhya Pradesh in exercise of powers
conferred by Article 166(2) & (3) of Constitution of India, the
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Respondent No. 1 & 2 were empowered to transfer and post the
appellant on deputation on the post of Director (Sports) in the
Respondent No. 3 - University.
5. That, the Hon'ble Single Judge erred in law in interfering with
the impugned order on the ground that no consent of Respondent No. 3
-- University has been obtained before sending the appellant on
deputation on the post of Director (Sports) especially when the
Respondent No. 5 & 6 nowhere pleaded in the entire writ petition fact
regarding consent of the Respondent No. 3. Thus, the impugned order
passed by the Hon'ble Single Judge travelled beyond the pleading of
the parties which is not only impermissible but is also violative of
principles of natural justice and fair play.
6. That, the Hon'ble Single Judge erred in law in not appreciating
the fact that Statute No. 31 does not apply to those officers or teachers
in the Respondent No. 3 - University who have been sent on deputation
like the present appellant.
7. That, the Hon'ble Single Judge also erred in law and on facts
in holding the Respondent No. 5 & 6 as "teachers of the University"
whereas this Hon'ble Court in the case of Dr. Mohammad Iqbal
Quraishi v. His Excellency, Kuladhipathi of DAVV & Another-- 2015
(1) MPLJ 8 (Annexure R-4/3 to the reply filed by the appellant) as
affirmed by the Division Bench of this Hon'ble Court in W.A. No.
742/2014, dated 3.12.2014 (Annexure R-4/4 to the reply filed by the
appellant) has categorically held that the post of Director of Physical
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Education/Director Sports is not a teaching cadre post and the
provisions of Section 49 of M.P. Vishwavidyalaya Adhiniyam, 1973
shall not be applicable.
8. That, the Hon'ble Single Judge has not appreciated the fact that
the provisions of Section 35 of M.P. Vishwavidyalaya
Adhiniyam,1973, the provisions of Statute No. 20 cannot run contrary
to the substantive provisions of Section 49 and Section 59(1) of M.P.
Vishwavidyalaya Adhiniyam, 1973. This material aspect of the case has
been completely overlooked by the Hon'ble Single Judge despite the
fact that this legal position has been settled by the judgment of
Coordinate Single Bench of this Hon'ble Court in the case of Parikshit
Singh v. State of M.P. & Others [W.P. No.13304/2018, decided on
23.8.2018] (Annexure R-4/5 to the reply filed by the appellant) as
affirmed by the Division Bench of this Hon'ble Court in Writ Appeal
No. 1667/2018 by order dated 30.11.2018 (Annexure R-4/6 to the reply
filed by the appellant)."
2. A writ petition was filed by the respondents No.4 and 5 herein
being aggrieved by the order dated 09.03.2019 (Annexure P/6) whereby
respondent No.4 was given posting as Director (Sports) at Rani Durgawati
Vishwa Vidyalaya, Jabalpur (RDVV) on deputation.
3. The case of the writ petitioner before the Writ Court was that they
are working as Professor and Assistant Professor in the Physical Education
Department in RDVV Jabalpur. The posts are to be filled by the University
in terms of provisions contained in Section 18 of the M.P. Vishwadidyalaya
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Adhiniyam, 1973. Since the post of Sports Officer will fall in definition of
'other officers' provided in Section 18 of the Adhiniyam, 1973, therefore, it is
to be filled in terms of the provisions contained under Section 49(2) of the
Adhiniyam, 1973 by constituting a committee as prescribed in the said
provision, i.e., Section 49(2) of the Adhiniyam, 1973.
4 . Before the Writ Court, learned counsel for the respondent No.4
therein has drawn attention of this Court to Business (Allocation) Rules
framed by State of Madhya Pradesh in exercise of powers conferred by
Clause (2) and (3) of Article 166 of the Constitution of India. He submitted
that higher education is dealt with in Chapter XXXVIII and under the
Chapter XXXVIII(A)-II. Universities and all incidental matters including
development programmes, opening of faculties and grants of UGC is covered
and as per entry-17, all matters relating to the service with which the
department is concerned (other than matters allotted to Finance Department
and 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 authorizes the 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. The Government Advocate who appeared before this Court has
produced photocopies of the proposal which was mooted by the
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Government. The Writ Court had gone through the same and observed that
this appears to be a file from the Office of the Commissioner, Higher
Secondary, Madhya Pradesh, Bhopal bearing No. 255/Sakha 02/19. Heading
is Shekshanik Samvarg Antargat Sthanantaran Prastav. Vide this proposal
persons whose names are mentioned in column No.2 working in 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 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), RDVV Jabalpur. Name of private respondent appears at
serial No.27. However, 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 established that word "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 the learned counsel for the
respondent/State.
7. It is not in dispute that the said proposal was forwarded by the
Additional Commissioner, Higher Education, it was signed by the
Commissioner, Higher Education and thereafter, there is a mention of the
fact that apart from the aforesaid, 5 proposals were made by the concerning
Minister (Shri P.C. Sharma) and (Shri Pradyumn Tomar Ji) on telephone.
They are mentioned in the flag. After approval, those proposals will be sent
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in coordination for approval. Thereafter, note-sheets were sent to the
Minister who signed it by making a note as proposed. Thereafter, Minister,
Shri Jeetu Patwari had made a note in regard to 3 persons saying that their
names be included in the proposal then it is mentioned that one Prerana
Thakur be transferred to M.L.B. Indore.
8. The Writ Court observed that there is no concurrence of the
borrowing university. Thus, two facts merge from the note-sheet produced
for perusal of the Writ Court which the Government Advocate submits that
this photocopy is sufficient and he is not producing the original file because
that will be of no help to the Court. Therefore, these documents which are
paged upto 04 and thereafter six pages are unnumbered out of which last
page is blank, are taken on record by the Writ Court.
9. The Writ Court after hearing the learned counsel for the parties and
having perused the record observed that as per the M.P. Vishwavidyalaya
Adhiniyam, 1973, Section 12 defines 'Kuladhipathi and his powers'. Section
4(xx) defines 'teachers of university' means Professors, Readers, Lecturers
and such other persons as may be appointed for imparting instructions or
conducting research with the approval of the Academic Council in the
University or the College of Institution maintained or recognized by the
University. Thus, it is evident that term 'teachers of the university' include
other persons as may be appointed for imparting instructions or conducting
research. Thus, when this definition is taken into consideration, it is
comprehensive definition and includes the post of Director (Sports) which
bears responsibility to impart instructions in the physical education.
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Accordingly, the Writ Court opined that teachers of the universities though
include Director (Sports) but even for the sake of convenience and with a
view to respect the submissions made by learned counsel for the respondent
No.4 therein that Director (Sports) is not a teaching post and it is not here to
impart any instructions, then Director of Sports will be covered under
Section 18 of the Adhiniyam, 1973, which deals with other officers and
provides that appointment of other officers of the University referred to in
Section 12, shall be made in such manner and the conditions of their service
and powers and duties shall be such as may be prescribed by the Statutes,
Ordinance or Regulations.
10. Section 49(2) prescribes constitution of a committee for selection.
Thus, any appointment of an officer covered under Section 4(xx) or under
Section 18 of the Adhiniyam, 1973 is to be made in terms of the provisions
contained in Section 49(2) of the Adhiniyam, 1973. Statute-20 makes a
mention of post of Director of Physical Education. It specifically provides
that in addition to the officers mentioned in clauses (i) to (v) of Section 11 of
the Adhiniyam, 1973, the following shall be the officers of the University:-
(v) Director of Physical Education. This Statute-20 itself, provides that in
case of appointment to the following posts, the selection committee shall be
constituted in accordance with provisions contained under Section 49(2) of
Adhiniyam, 1973. The post of Director, Physical Education is included, and
thus, it is evident that Statute-20 clearly provides for filling up of the post of
Director, Physical Education by following a provision contained in Section
49(2) of Adhiniyam, 1973 and in view of this matter, it is evident that
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respondents No.1, 2 and 3 in the writ petition could not have filled the post
of Director, Physical Education, by transfer on deputation without following
the procedure prescribed under Section 49(2) of Adhiniyam, 1973, and in
any case even if the submissions made by learned counsel for the private
respondent No.4, is taken into consideration then a cogent reading of the
delegation of powers under the Business (Allocation) Rules makes it
abundantly clear that, that will not transgress into the matters which are
specifically covered by the M.P. Vishwavidyalaya Adhiniyam, 1973 or by
the Statutes framed specifically for the purposes of regulating the matters
pertaining to the University.
11. Accordingly, Writ Court has rightly opined that in the absence of
any material to show that Business (Allocation) Rules framed by His
Excellency Hon'ble the Governor in exercise of powers conferred on him
under Article 166 of the Constitution of India can transgress the Act which is
statutory in nature, cannot be tampered by the State Government in the name
of Business (Allocation) Rules. In view of such facts, once Statute cannot be
breached by respondents authorities in the name of Business (Allocation)
Rules and when there is flagrant violation of Section 49(2) of Adhiniyam,
1973 and Statute-20 framed in this behalf, then the action of the
respondent/State in favoring private respondent No.4 and appointing him as
Director, Physical Education without consent of the University or without
there being any requisition from the university for appointment of such
Director, Physical Education from an outside agency, namely, the employee
of State Government, the order of deputation being arbitrary and cryptic
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cannot be given seal of approval.
12. In view of the above, we find no perversity in the order passed by
the Writ Court. Finding no merit in the present appeal, the same is
accordingly dismissed.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
ak
