Kantilal Kuberdas Chauhan v. State of Gujarat — 1996 DIGILAW 22 (GUJ)

ORDER : S. K. Keshote, J. The petitioner, who is holding the post of cadre of Gujarat Agricultural Services Class-II, filed this writ petition before this Court praying therein for quashing of the order at Annexure-E and Annexure-J dated 1st June, 1979 and 10th March, 1983 respectively under which the authorities have not accepted this option of the petitioner for the agricultural services. The petitioner was directly recruited through the Gujarat Panchayat Service Selection Board to the post of Agricultural Officer Grade-I and he was appointed vide order dated 14th February, 1977 in the office of the Amreli District Panchavat. The petitioner was not aware at the time of recruitment till 17th March, 1979 that he has to submit his option either to the post of Agricultural Service Class II or Gujarat Development Services Class-II. The petitioner states that he was not given any option form at the relevant time. He has also not been informed by the District Development Officer under whom he was working that he is entitled to fill in the option form within four months for promotion in the Gujarat Agricultural Services Class-II or Gujarat Development Services Class-II. In view of this fact, the petitioner has filled in his option form on 22nd March, 1979 and he has opted for Agricultural Services. The Agricultural Officer immediately forwarded the aforesaid option application of the petitioner to the Director of Agriculture, Ahmedabad, vide letter dated 24th April, 1979, the copy of which is submitted at Annexure-C to this petition. The Director of Agriculture, in its turn, vide its letter dated 23rd May, 1979 informed the Agricultural Officer, Amreli, that as the petitioner has not submitted his option in time, he should be treated to have opted for Gujarat Agriculture Development Officers Class-II. The petitioner on coming to know about the direction submitted the representation to the said officer on 29th December, 1980 and given out therein that he was not informed of his right to exercise option for either of the services. 2. The petitioner on coming to know about the direction submitted the representation to the said officer on 29th December, 1980 and given out therein that he was not informed of his right to exercise option for either of the services. 2. The Gujarat Panchayat Service (Promotions to Cadres in State Services) Rules, 1974, makes a provision for submission of the option in writing to the District Development Officer and to the Head of the Department concerned within four months from the date of the publication of these Rules and in case those who are appointed to the posts specified in column No. I after the publication of these rules within four months from the date of their appointment to such posts. These Rules were amended in the month of October, 1978 and it has been ruled out that in case those who have failed to exercise their option within the period of four months shall be deemed to have opted for the Gujarat Development Service Class-II. The petitioner has stated that three persons who were similarly situated filed Special Civil Application No. 221 of 1979 before this Court. One another person has filed Special Civil Application No.219 of 1979 and in those writ petitions the identical question as regards the exercise of option was raised and this Court has held that the authorities shall treat the option exercised by the petitioners therein as valid and effective. After coming to know about the decision given in those two writ petitions as referred to here in above, on 1st December, 1982, he submitted a representation to the Department on 13th December, 1982 for accepting his option for Gujarat Agricultural Service Class-II and for giving him promotion accordingly. The petitioner was informed by the Additional District Agricultural Officer, District Amreli, vide letter dated 10th March, 1983 that his option form did not reach in time and therefore it was not accepted. The two orders dated 22nd November, 1979 of the Director of Agriculture and 10th March, 1983 of Additional District Agricultural Officer are challenged in this writ petition. 3. The respondents have contested this writ petition by filing reply to the same. 4. The learned counsel for the petitioner has contended that a great injustice has been caused to the petitioner in the matter of his service career and future prospects without there being any fault on his part. 3. The respondents have contested this writ petition by filing reply to the same. 4. The learned counsel for the petitioner has contended that a great injustice has been caused to the petitioner in the matter of his service career and future prospects without there being any fault on his part. The petitioner was not made aware of his right of the option for either of the services i.e. Agricultural Service or Agricultural Development Services at any stage prior to 1979. At the time of inviting applications for appointment to the post of Agricultural Officer Grade-I, it was not mentioned that after his appointment he shall opt for either of the services within a period of four months. The Rules of 1974 were not brought to his notice. Not only this but after his appointment on the post he was never informed of his right of the option by his superior officers. He could not exercise the right of option within the time limit for want of knowledge of the rules. 5. It is too difficult to expect from a new entrant that he has to know about his right. The petitioner who is a new entrant to the service should have been informed about his right by the department rather than to proceed on the assumption and presumption of knowing the law by all the persons. A valuable right could not be exercised by the petitioner which has affected his future promotions. The option form has been rejected only on the ground that it was not submitted within the time but the respondents have not considered that there was no fault on his part whatsoever in submitting the option form. The petitioner could not have been blamed for not submitting the option form within the time. The blame could have been put on the petitioner when the petitioner was informed of his right and he did not exercise the option. The legal fiction which has been created cannot be operated against him because, he was not aware of his right. Lastly, the learned counsel for the petitioner relying on documents, that is, letters of the District Panchayat, Amreli, and Director of Agriculture contended that those officers have also stated that it is too difficult for the employees to know about their rights and as such in the rules necessary amendment shall be made. 6. Lastly, the learned counsel for the petitioner relying on documents, that is, letters of the District Panchayat, Amreli, and Director of Agriculture contended that those officers have also stated that it is too difficult for the employees to know about their rights and as such in the rules necessary amendment shall be made. 6. On the other hand, learned counsel for the respondents has contended that the petitioner has not submitted his option within time and as such no illegality whatsoever has been committed by the respondents to reject his option form. 7. I have considered the submissions made by the learned counsels for the parties. 8. It is the admitted case of the respondents that the petitioner was not informed of his right of option either at the time of his appointment or thereafter at any point of time. It is also the admitted case of the respondents that the option has to be exercised in a prescribed form and that prescribed form was never given to the petitioner for exercising his option. It is also the admitted case of the respondents that after appointment at no point of time the officers at District Panchayat, Amreli, have brought to his notice his right to exercise option for either of the services. It is also the admitted case of the respondents that the petitioner has any knowledge of the Rules which provide for option at any time prior to March, 1979. 9. It is the case of the respondents that the petitioner was appointed after the Rules, 1974 have been framed and in view of this fact the petitioner was required to exercise his option within four months from the date of appointment. The State Government has amended these Rules vide notification of April, 1978 and a provision has been inserted therein providing for legal fiction that in case the option has not been exercised within a period of four months then, the officers shall be deemed to have opted for Gujarat Agricultural Development Class-II Services. To deny the benefit of option to the petitioner, the first and foremost question which does arise for the consideration is that even when the petitioner has no knowledge about his right actual or constructive nor he was made aware of his right either at the time of appointment or thereafter whether the legal fiction created would come in his way. The next question does arise for consideration is whether in the absence of the knowledge of the right actual or constructive whether the period of limitation came in the way of the petitioner to exercise the option. So far as the factual aspect, is concerned, it is not the case of the respondents that the petitioner has any actual or constructive knowledge of his right at any time earlier to March, 1979. The petitioner could have exercised his option as provided in Rules 1974 within the time limit prescribed when he has any knowledge about his right. Though the petitioner was eligible to exercise option of either of the services, he could not exercise his option as required in the Rules within four months from the date of his appointment for the obvious reason that he has no knowledge of the same or he was not made known of it. From the orders which have been passed in the present case by the Director of Agriculture and the office of the District Panchayat, Amreli, it is clear that the petitioner's option has been rejected only on the ground that it has not been made within four months of his appointment. The legal fiction has been made applicable in the case' of the petitioner. Neither the Director of Agriculture nor the District Panchayat at Amreli has found that the petitioner had not exercised the right within four months even though he was in knowledge of the right of said option. In the absence of a finding to this effect, the rejection of the option of the petitioner only on the ground of limitation is highly arbitrary and unjustified. Both the authorities have themselves realised the difficulty of the employees who entered into service to exercise their option for either of the services within the stipulated period. The Director of Agriculture has suggested for amendment in the Rules to overcome these difficulties to the new entrants in the service and deprives them their valuable right of option. It is too wide to say that the petitioner is presumed to know about his rights. In this context, it may be relevant to state that it is too difficult for the employee to know about all the relevant service rules regulating their service conditions immediately after appointment. It is too wide to say that the petitioner is presumed to know about his rights. In this context, it may be relevant to state that it is too difficult for the employee to know about all the relevant service rules regulating their service conditions immediately after appointment. Moreover, a new entrant to the service will not be supposed to know from the very first day or start looking into and search out about his rights. What I think to be fair and reasonable to provide all the benefits of the services is to bring this fact to the notice of the candidates at the stage when the applications are invited for the appointment. Even if this is not done, but when the petitioner has entered the services, the superior officers should have brought this right of option to his notice. Otherwise, how can he be expected to know about his right of option within four months of his appointment? Under the Rules of 1974 a limitation for the exercise of option is provided. When it is the requirement of Rules with a further provision of deeming clause by legal fiction, the superior officer should have taken all care that the new entrant has availed of his right of option. Looking to the fact that a new entrant has to exercise his option within four months of entry in service it is the knowledge of the party affected by such Rule which should be taken to be the requirement, otherwise, the very object and purpose of the benefits conferred by the Rules would be defeated. It is no doubt true that Rules of 1974 as well as amended Rules of 1978 are the Statutory Rules framed by the State Government in exercise of powers under Section 203(4) of the Gujarat Panchayat Act. It is also equally true that these Rules are published in the Government Gazette but it cannot be accepted that once these rules are published' in the Government Gazette, every person affected by such Rules must be deemed to have knowledge of the same. The case which came for the consideration of this Court in Special Civil Applications Nos. 221 of 1979 and 219 of 1979 are of the existing employees but the case of the petitioner stand on much better footing. The case which came for the consideration of this Court in Special Civil Applications Nos. 221 of 1979 and 219 of 1979 are of the existing employees but the case of the petitioner stand on much better footing. In the present case the petitioner is a new entrant and normally it is too difficult to expect from him to know each and every thing within four months from the date of his appointment. He takes a reasonable time to settle and at the early stages no employee cares for his future service prospects. Looking to the right which has been conferred by a statutory provisions and the consequential loss to the petitioner due to non-exercise of option it is just, reasonable and in the larger interest that period of limitation should have been considered from actual or constructive knowledge of the Rules and not from the date of the actual appointment. 10. In the result, this writ petition succeeds and the same is allowed. The order of the Director of Agriculture as contained in his letter dated 23rd May, 1979 and conveyed to the petitioner under the letter of Agricultural Officer, Amreli, dated 1st June, 1979 at Annexure-E to the petition and order of the Additional District Agricultural Officer, District Amreli, dated 10th March, 1983 at Annexure-3 to the petition, are quashed and set aside. The option exercised by the petitioner for the Gujarat Agricultural Services Class- II vide his letter dated 23rd March, 1979 and dated 15th December, 1982 should have been treated as valid and effective option entitling the petitioner to be considered for being included in the combined seniority list of Agricultural Combined Officers Grade-I and to consider his case for promotion and if he is found suitable for the same to give him promotion in the Gujarat Agricultural Service Class-II with effect from the date when his immediate junior was promoted. However, he shall not be entitled for actual promotion but only be entitled to notional promotions. He shall be entitled for all the consequential benefits followed therefrom. Rule is made absolute in the aforesaid terms with no order as to costs. Petition allowed.