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1971 DIGILAW 108 (KAR)

C. B. SHANBHAG v. STATE OF MYSORE

1971-03-24

NARAYANA PAI, VENKATASWAMI

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NARAYANA PAI, C. J. ( 1 ) THIS was one of the writ petitions posted along with W. P. 4363 of 1968 and connected cases for hearing, but was kept out of the batch on the representation that it involved certain additional points. ( 2 ) ALTHOUGH there are several prayers in the writ petition, all of them ultimately relate to the petitioner's claim to retain the benefit of previous service for purposes of seniority in the Mysore Government secretariat services. ( 3 ) HE was allotted from the erstwhile State of Bombay to the new state of Mysore. He joined service under the Bombay Government in december, 1955. Upon allotment in consequence of the States Reorganisation act, he was directed by the Electrical Engineer of the Bombay Government to report himself for duty in the office of the Director of Public instruction of the Mysore State in Bangalore. The said officer however did not take him into service in his office on the ground that he had not been allotted to work there. Thereupon he reported himself at the General administration Department of the Secretariat for further instructions. On 22nd December, 1956, by an order of transfer made by the Chief Secretary to the Government, the petitioner was transferred, from the Administration branch to the Election branch to work temporarily against a post of typist sanctioned by the Government for the said Election Department the text of the order of transfer is- "the following postings and transfers of officials in the Mysore government Secretariat, are ordered to take effect forthwith. " a copy of that order is produced as Ext.-C annexed to the petition. ( 4 ) THE petitioner states that there was a circular by the Government sometime in May, 1959 providing for absorption in Secretariat services of persons who had been similarly situated as the petitioner and that in the said circular no conditions were stipulated for absorption. We do not however have that circular before us, nor does the petitioner state how and on what basis he states such to be the content of the said circular. ( 5 ) HE then refers to the circular dated 23rd October, 1961 providing for conditional absorption into Secretariat service) of persons, on the several conditions set out therein. We do not however have that circular before us, nor does the petitioner state how and on what basis he states such to be the content of the said circular. ( 5 ) HE then refers to the circular dated 23rd October, 1961 providing for conditional absorption into Secretariat service) of persons, on the several conditions set out therein. The circular has been dealt with in detail in our order dated 19th February, 1971 made in Parameswaran v. Chief Secy. , (1971) 1 Mys. L. J. 378 (WP. 4363/65) and connected cases and also in our order dated 12th March, 1971 in Ramakrishnaya v. Chief Secy. , (1971) 1 Mys. L. J. 555 (WP. 148069) dealing with the same question in relation to the same circular. It is unnecessary to refer to the details thereof. It is sufficient to state that the Government took from each person desirous of absorption on the conditions set out in the circular a written declaration in the form prescribed by the Circular itself. The effect of that is, the signatory thereto voluntarily agreed to the conditions contained therein, one of them being giving up the benefit of service prior to a particular date (7th October, 1961 ). ( 6 ) THE text of the declaration prescribed by the circular is as follows:"in pursuance of the circular No. CAD 268 ASP 61 dated 23rd october 1961, I. . . . . . . . . . at present working as. . . . . . . . . . in my absorption in the Mysore Government Secretariat on the conditions stated in the said circular which I hereby voluntarily accept. " ( 7 ) THE petitioner has produced as Ext.-E a copy of the declaration which, he states, was the one given by him. That declaration reads :-"in pursuance of the circular No. CAD 268 ASP 1961, I, G. B. Shanbhag, at present working as Junior Assistant in the Law Department hereby agree to my absorption, subject to giving me full seniority and S. R. Protections, in the Mysore Government Secretariat. " n. B.-My parent Deptt. in Mysore State is wounded up and formed a Board. " ( 8 ) ONE of the points of distinction between those cases and this case is said to be that the order of transfer Ext. C should, in the circumstances, be read as actually amounting to absorption. " n. B.-My parent Deptt. in Mysore State is wounded up and formed a Board. " ( 8 ) ONE of the points of distinction between those cases and this case is said to be that the order of transfer Ext. C should, in the circumstances, be read as actually amounting to absorption. The argument is based almost exclusively on the language employed in the order which we have already " extracted. It is said that the transfer was of "officials in the Mysore Government secretariat" which in the context should, according to the argument, be read as 'officials of the Mysore Government Secretariat' or as having such effect. We are unable to accept the contention. It is a simple order of transfer from one department of the Secretariat to another department. The expression "in the Mysore Government Secretariat" may as well be read as qualifying transfers, and not necessarily as qualifying officials. It may be read as a transfer of officials to have effect within the secretariat, meaning that the transfer is limited to the Secretariat itself and not outside the Secretariat. ( 9 ) THE language itself does not, in our opinion, support the contention that the said transfer must be regarded as absorption. ( 10 ) ANOTHER difficulty of accepting that argument is that the petitioner was not for the first time taken into Secretariat service by that order, but was already working in the Secretariat in its Administration Branch, and we know the circumstances in which he came to work in the branch, which we have already summarised. The reason was that the Director of Public instruction to whose office he was sent by his official superior in the erstwhile state of Bombay declined to take him in and directed him to go to the Administration Department for further instructions. If, therefore, the petitioner has to make out a case of absorption, he must concentrate on the position as on the date he was asked to work in the " Administration department. There is no information whatever as to the circumstances in which he was asked to work there, much less any demonstration of how these circumstances must in the eye of law be regarded as resulting in actual absorption of the petitioner in Secretariat service. There is no information whatever as to the circumstances in which he was asked to work there, much less any demonstration of how these circumstances must in the eye of law be regarded as resulting in actual absorption of the petitioner in Secretariat service. ( 11 ) TO another circumstance which is said to distinguish this case from WP 4363 of 1968 and connected cases, we shall refer at a later stage because it has relation to the effect of the circular of 23rd October, 1961. ( 12 ) NOW, in the case of Parameshwara, W. P. 4363 of 1968, we have held that the circular was in the nature of an offer by the State Government to absorb in Secretariat, service on certain conditions and subject to their assenting to the said conditions, and that whoever accepted those conditions and gave an undertaking became bound by the same with the result that they must be taken to have voluntarily given up the benefit of previous service as required by that circular. ( 13 ) IN the case ot Ramakrishna, Writ Petition No. 1480 of 1969, we have indicated what the legal result of continuing a person without taking an undertaking is and have pointed out that, in the absence of an undertaking, the official continued in the Secretariat cannot be made to lose the benefit of the provisions of rule 6 of the Mysore Government Servant's seniority Rules, but that in such a situation the absorption does not take effect at all and thereby preserves to the Government its original right of transferring the official to any other department. ( 14 ) THE argument based on this consideration is that the right to transfer which we have considered as continuing to subsist, was no other than the right of repatriation, because that is the word used in the circular. ( 14 ) THE argument based on this consideration is that the right to transfer which we have considered as continuing to subsist, was no other than the right of repatriation, because that is the word used in the circular. The further argument is that repatriation is possible only to a parent department, that is, a department where the official concerned had been working, and that because in the case of the petitioner Electricity department has ceased to exist upon the establishment of the Electricity board under a statute, there was no parent department to which the petitioner could be repatriated, and that therefore Government had lost the right of making a transfer, with the result that the petitioner gets the benefit of continuing in the Secretariat as well as the benefit of retaining his previous service. ( 15 ) WE do not think that such a position is statable. The fact that the Government stated in the circular that those who are not willing to get absorbed on the conditions offered by them would be repatriated to their parent department does not mean that if there is no parent department, government could not transfer them to any other department. The essence of the matter is, the Government does have the right to transfer a Government servant from one department to another. The consequence of absorbing a person in Secretariat service is that the Secretariat is the only place where he should serve and the transfer could only be from one department of the Secretariat to another department. The Government cannot therefore, thereafter, transfer him to any department or place other than a department of the Secretariat. We reject the contention that the use of the word 'repatriation' supports the inference that repatriation or transfer to the parent department was the only right the Government had in respect of persons serving in the Secretariat, having been transferred thereto from some other department. We reject the contention that the use of the word 'repatriation' supports the inference that repatriation or transfer to the parent department was the only right the Government had in respect of persons serving in the Secretariat, having been transferred thereto from some other department. ( 16 ) ONCE it is seen that these two distinguishing features really make no difference to the legal position, the result is that, if the petitioner had given an undertaking as prescribed under the circular of 23rd October, 1961 then this case would be governed by our decision in Parameshwara's case, W. P. No. 4363 of 1968, and, if he had not given such undertaking he would be governed by our decision in the case of Ramakrishna W. P. 1480 of 1969. ( 17 ) AS the form in which, the petitioner contends, he gave an undertaking is materially different from the form prescribed under the Government circular of 23-10-1961, it would be a case of petitioner not having given any undertaking at all, because the essence of the undertaking as required by the circular is the giving up of previous seniority, and, the condition appearing at the end of the text of the declaration which the petitioner has given is totally destructive of the same. It would be a case of Government making an offer of absorption on condition that the petitioner should give up past service and the petitioner making a counter-offer that he is willing to get absorbed on condition that his previous service is retained. ( 18 ) HENCE, if the petitioner has given an undertaking of the type which he says he has given, it would be a case of petitioner not having been absorbed at all. ( 19 ) THE question whether the petitioner has given an undertaking in the text prescribed by the Government or in the text now produced by him as Ext. E is a question of fact and we do not propose to go into it for the reason that there appears to be some disciplinary enquiry pending against the petitioner in relation thereto. E is a question of fact and we do not propose to go into it for the reason that there appears to be some disciplinary enquiry pending against the petitioner in relation thereto. ( 20 ) IN the circumstances, therefore, we can dispose of his writ petition by only making a declaration to the effect that there has been no absorption of the petitioner in Secretariat service any time prior to the circular of 23rd October, 1961, that the absorption would be complete and the petitioner loses the benefit of previous service as indicated in the circular if the petitioner had given an undertaking in the text prescribed by the circular, and that his case will be governed by our decision in Writ petition No. 4363 of 1968, but that, if he had given an undertaking in the form furnished in Ext. E annexed to the writ petition, no absorption of tht petitioner could have taken place, and his case would be governed by our decision in Writ Petition No. 1480 of 1969. We make a declaration in these terms. --- *** --- .