GUJARAT KRUSHI UNIVERSITY DANTIWADA Vs. D N VAGAD

JUDGEMENT

(1.) . The judgment and the decree passed by the learned Extra Assistant Judge of Junagadh on 22/10/1991 in Regular Civil Appeal No. 134 of 1987 are under challenge in this appeal preferred by original defendant No. 1 under Sec. 100 of the Code of Civil Procedure, 1908 ('the Code' for brief). Thereby the learned Lower Appellate Judge dismissed the present appellant's appeal against the judgment and the decree passed by the learned 2nd Joint Civil Judge (S. D.) at Junagadh on llth September, 1987 in Regular Civil Suit No. 126 of 1979. It is needless to say that the trial Court decreed the suit filed by respondent No. 1 herein as the plaintiff.

(2.) . The facts giving rise to this appeal move in a narrow compass. The appellant is a University established under the Gujarat Agricultural University Act, 1969 ('the Act' for brief). It appears that by the Government Resolution of 25/06/1973 at Exh. 43 on the record of the trial Court, certain activities relating to Research, Education and Extension Training Programme facilities pertaining to the Department of Agriculture and Animal Husbandry of respondent No. 2 herein came to be transferred to the appellant. This was obviously done under Sec. 51(5) of the Act. One of these schemes transferred to the appellant University thereunder was the scheme for distribution of Ammonium Sulphate. It was transferred with certain staff of the scheme namely 4 (four) Analysers and 1 (one Laboratory Boy. They were to be treated as on deputation. The transfer was to be made effective from 1/07/1973. The staff transferred with the aforesaid scheme included transfer of respondent No. 1 herein in his capacity as an Analyser. His service was also placed under the control of the appellant University. It appears that by its order passed on 30/05/1974 at Exh. 44 on the record of the case, he was promoted as Agricultural Officer on ad hoc basis and appointed as the Principal of Agricultural College at Junagadh. It appears that it was brought to the notice of the appellant University that he was not its permanent employee and was transferred to it on 1/06/1972 and he was wrongly given promotion. Thereupon, by its order passed on 22/04/1976 the promotion given to him by the order at Exh. 44 came to be cancelled. A copy of the order passed on 22/04/1976 is at Exh. 45 on the record of the case. This order was implemented by the order of 27/04/1976 at Exh. 46 on the record of the case. It appears that the idea to retransfer the scheme for Distribution of Ammonium Sulphate to respondent No. 2 was under consideration. It appears that a decision in that regard was taken and the necessary notification was issued by the appellant University on 2/08/1977 inter alia for recommendation of retransfer of the scheme for Distribution of Ammonium Sulphate. It appears that this recommendation was accepted by respondent No. 2 and the necessary Resolution in that regard was passed on 31/05/1979. Its copy is at Exh. 56 on the record of the case. It appears that prior to that the Director of Education issued one office order infer alia promoting respondent No. 1 herein to the post of Agricultural Officer on ad hoc basis pending availability of the candidates for the post selected by the Public Service Commission or for a period of six months whichever eventuality occurring earlier. A copy of that office order of 28/03/1979 is at Exh. 47 on the record of the case. It appears that in the mean time respondent No. I herein filed one suit in the Court of the Civil Judge (S. D.) at Junagadh questioning the correctness of the reversion order on the ground that he was an employee of the appellant University and was therefore, entitled to promotion to the post of Agricultural Officer. He also prayed for a mandatory injunction for his promotion to and reinstatement on the post of Agricultural Officer with full back wages and for a permanent injunction restraining the appellant herein and respondent No. 2 herein from issuing any order, instruction or direction to revert him or to repatriate him from the services of the appellant University. It came to be registered as Regular Civil Suit No. 126 of 1979. The appellant herein was arraigned as defendant No. 1 and respondent No. 2 herein as defendant No. 2 in that suit. The appellant as defendant No. 1 filed its written statement at Exh. 12 on the record of the case and resisted the suit on various grounds. Respondent No. 2 herein as defendant No. 2 does not appear to have filed any written statement in the suit. It appears to have been assigned to the learned 2nd Joint Civil Judge (S.D.) at Junagadh for trial and disposal. On the pleadings of the parties, the issues were framed at Exh. 15 on the record of the case. After recording evidence and hearing the parties, by his judgment and decree passed on llth September, 1987 in Regular Civil Suit No. 126 of 1979, the learned 2nd Joint Civil Judge (S. D.) at Junagadh accepted the suit in toto and passed the decree as prayed for. That aggrieved the present appellant. It carried the matter in appeal before the District Court of Junagadh. Its appeal came to be registered as Regular Civil Appeal No. 134 of 1987. It appears to have been assigned to the learned Extra Assistant Judge of Junagadh for hearing and disposal. By his judgment and decree passed on 22/10/1991 in Regular Civil Appeal No. 134 of 1987, the learned Extra Assistant Judge of Junagadh dismissed the present appellant's appeal. The aggrieved appellant has thereupon invoked the further appellate jurisdiction of this Court under Sec. 100 of the Code by means of this Second Appeal.

(3.) . The Courts below have held respondent No. 1 herein to be a permanent employee of the appellant University under the relevant provisions contained in Sec. 52 of the Act. This conclusion reached by the Courts below is challenged before this Court by way of a substantial question of law.