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PETITIONER: STATE OF MYSORE

       Vs.

RESPONDENT: H.   PAPANNA GOWDA & ANR.  ETC.

DATE OF JUDGMENT: 24/11/1970

BENCH: MITTER, G.K. BENCH: MITTER, G.K. SHAH, J.C. HEGDE, K.S. GROVER, A.N. RAY, A.N.

CITATION:  1971 AIR  191            1971 SCR  (2) 831  1970 SCC  (3) 545  CITATOR INFO :  RF         1981 SC  53  (23)  E&D        1982 SC1107  (28)

ACT: Constitution  of India, 1950, Art.  311-Compulsory  transfer from Government Service to University-If operates as removal from service.

HEADNOTE: The  University  of  Agricultural Sciences  Act,  1963,  was passed  by  the  Mysore State Legislature,  to  establish  a University  for the development of agricultural  and  allied sciences  in  the  State.  Under s. 7(4)  of  the  Act,  the control and management of such research institutions of  the department  of agriculture as the State Government might  by order  specify, were to be transferred to the University  as and  from the date specified; and, under sub-s.  (5),  every person  employed in such an institution, were, as  from  the specified  date, to become an employee of the University  on such  terms  and conditions as might be  determined  by  the State  Government in consultation with the Board of  Regents of the University. The  respondent  was holding a civil post  under  the  State Government, having been appointed as a chemical assistant in the   Agricultural  Research  Institute,  Mandya,   in   the department  of  agriculture  of the  State.   In  1965,  the control  and management of the Institute was transferred  to the University, by a notification under the Act. On   the  question  whether  there  was  a  removal-of   the respondent from a civil post in contravention of Art. 311, HELD : Whether the prospects of the respondent were or  were not prejudicially affected is irrelevant.  For better or for worse,  the notification resulted in the extinction  of  his status  as  a  civil  servant,  and  hence,  his  compulsory transfer to the University was void. [834 A, F] Amulya  Kumar  Talukdar v. Union of India, I.L.R.  13  Punj. 781, distinguished.

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JUDGMENT: CIVIL  APPELLATE  JURISDICTION: Civil Appeals Nos.  1868  to 1882 of 1969. Appeals  from the judgment and order dated July 9, 10,  1968 of the Mysore High Court in Writ Petitions Nos. 1776,  2108, 2109,  2111, 2112, 2272, 2273, 2275, 2385, 2386, 2390,  2395 and 2396 of 1966 and 728 and 990 of 1967. Jagadish   Swarup,  Solicitor-General,  S.  S.  Javali   and S. P. Nayar, for the appellant (in all the appeals). M.Mama  Jois  and R. B. Datar, for respondent No.  1  (in C.As.     Nos. 1868 to 1871 and 1874 to 1881 of 1969). 832 The Judgment of the Court was delivered by- Mitter, J. The State of Mysore has come up in appeal from  a common judgment of the High Court at Bangalore disposing  of a  number of writ petitions and holding void the  compulsory transfer  of  the  respondents herein  to  the  Agricultural University  under  the  provisions  of  the  University   of Agricultural Sciences Act, 1963. As  the same question arise Civil all these appeals it  will be sufficient to state the facts in Appeal No. 1$68 of  1969 in  which one H. Papanna Gowda is the respondent.  The  said respondent  was appointed on January 7, 1959 as an  agricul- tural  demonstrator  in  the  Mysore  Civil  Service.    His appointment  was  as  a local candidate’  which  under  the Mysore  Civil Service Rules means a person appointed not  in accordance with the rules of recruitment.  His services were however  regularised  when  he was selected  by  the  Public Service  Commission for appointment to that post  on  August 27,  1959.   By  an  order  dated  April  4,  1964  he   was transferred  and  posted  as a  Chemical  Assistant  of  the Sugarcane  Research  Station Mandya, in  the  department  of agriculture.   When he was thus employed, a law made by  the State  Legislature  called the  University  of  Agricultural Sciences  Act., 1963 (hereinafter referred to as the Act’) came  into force on April 24, 1964.  Before the  High  Court the respondents to these appeals challenged the vires of  s. 7(5) of the Act and a notification issued thereunder. The  preamble to the Act shows that it was an Act to  estab- lish  and  incorporate a University for the  development  of agriculture,  animal  husbandry and allied sciences  in  the State  of Mysore.  Under S. 3(2) the University was to be  a body  corporate  having perpetual succession  and  a  common seal.   The  powers given under s. 6 of the Act  enabled  it inter  alia to create administrative, ministerial and  other posts  and to appoint persons to such posts.  Under s.  7(1) subject   to  the  conditions  therein   mentioned   several agricultural and veterinary colleges were disaffiliated from the Karnatak University or the University of Mysore and were to  be  maintained  by the  new  University  as  constituent colleges.  The control and management of these colleges were to stand transferred to the Agricultural University and all its properties and assets and liabilities and obligations of the  State  Government  in relation thereto  were  to  stand transferred   to,  vest  in,  or  devolve  upon   the   said University.   Under  sub-s.  (4) of s.  7  the  control  and management of such research and educational institutions  of the  Department  of Agriculture, the  Department  of  Animal Husbandry  and  the  Department of Fisheries  of  the  State Government  were,  as  and  from  such  date  as  the  State Government                             833 might by order specify, to be transferred to the  University

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and thereupon all the properties and assets and  liabilities and obligations of the State Government in relation to  such institutions  were  to  stand transferred to,  vest  in,  or devolve  upon the University. omitting the proviso which  is not relevant for our purpose, sub-s. (5) provided               "Every person employed in any of the  colleges               specified in sub-section (1) or in any of  the               institutions  referred to in  sub-section  (4)               immediate before the appointed day or the date               specified  in the order under subsection  (4),               as  the  case  may  be,  shall,  as  from  the               appointed day or the specified date, become an               employee  of the University on such terms  and               conditions  as may be determined by the  State               Government in consultation with the Board :" The  Board has been defined in section 2 clause (3)  as  the Board of Regents of the University. By  notification  dated September 29, 1965 the  control  and management  of a large number of research  and  educational institutions were transferred to the University with  effect from  October 1, 1965.  The Agricultural Research  Institute Mandya  where  the  respondent  was  working  was  one  such institution.   Not  liking  the  change  which  his   future prospects  were  likely  to  undergo  as  a  result  of  the notification,  the  respondent presented  a  writ  petition, seeking  a declaration that sub-ss. (4) and (5) of s.  7  of the  Act Were invalid And for a further declaration that  he continued to be a civil servant under the State  Government. To  put in brief the argument on this head was that  he  had been   removed  from  a  civil  post  under  the  State   in contravention of the provisions of Art. 311. A  further argument was put up that the respondent had  been subjected to hostile discrimination inasmuch as persons  who had  been appointed in the same manner as himself and  later in  point  of  time than himself had been  retained  in  the service  of the State thereby infringing articles 14 and  16 of the Constitution. It  is  not necessary to deal with the second point  as  the appellant,  in our opinion, must fail on the  first.   There can  be no dispute-as indeed the  learned  Solicitor-General was constrained to admit-that the respondent and others  who had  filed writ petitions in the High Court challenging  the notification ceased to hold the civil posts which they  held under the State of Mysore at the time when the notification was issued if it was to have full force and effect.  Whether the prospects of the respondent were 11-L694Sup.CI/71 834 or were not to be prejudicially affected if he was to become an employee of the University is not in point.  However  the learned Solicitor-General drew our attention to paragraph 17 of  the counter affidavit to the writ petition filed in  the High Court where it was stated that the terms and conditions of  transfer  as  agreed  to  by  the  Government  and   the University provided inter alia for the following (1)Every  employee of the, Government on his  transfer  to the University shall enjoy the same pay scale. (2)  He  was to be eligible for pensionary benefits  in  the same manner as he had while he was serving the Government. (3)  His  claims for higher pay scales or  higher  positions under the University shall be deemed to be on a preferential basis in comparison with others, provided the qualifications and experience were equal; and (4)Every  employees of the Government on his  transfer  to the  University was to be protected to the extent  that  the

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terms  and  conditions of his service under  the  University would not be altered to his detriment. We  are not here concerned with the question as  to  whether for  all practical purposes the respondent was not to  be  a loser as a result of the transfer.  Evidently the respondent held the view that as a civil servant of the State of Mysore the  prospects  of  promotion to higher  posts  with  better scales of pay were greater in the service of the State  with its manifold activities in various departments.  For  better or for worse, the notification resulted in extinction of his status as a civil servant. The  learned Solicitor-General sought to rely on a  judgment of  the Punjab High Court in Amulya Kumar Talukdar v.  Union of  India and others(1) a case which was considered  by  the High  Court  of Mysore, in aid of his  contention  that  the transfer of the kind effected in this case had been held  to be  valid  by  the Punjab High Court.   The  High  Court  at Bangalore  went  into the question  rather  elaborately  and noted   that  there  were  many  differences   between   the provisions of the Indian Institute of Technology (Kharagpur) Act 1956, the Act impugned in the Punjab High Court and  the Agricultural  University Act of 1963.  Tin the  Punjab  case the petitioner had initially been appointed by the Director, Indian  Institute of Technology Kharagpur as a peon.   As  a result of the Act of 1956 the Institution declared to be one of  national  importance,  was  constituted  under  the  Act providing inter alia that the employees who were working  in the  Institute  be-fore  were  to  hold  office  or  service thereafter upon the (1)  I.L.R. 13 Punj. 781. 835 same  terms  and  conditions and with the  same  rights  and Privileges  as to pension, leave, gratuity,  provident  fund and  other matters as they would have held the same  on  the date of commencement of. the Act as if the Act had not  been passed.   In the case before us the Act provides  by  sub-s. (5) of S. 7 that the terms and conditions of the  Government employees  immediately before the appointed day or the  date specified in the notification were to be such as might  be determined by the State Government in consultation with  the Board.   The learned Judge of the Punjab High Court  on  the facts  of  that  case found it unnecessary  to  examine  the argument whether, the assent given by the President to  the Indian  Institute  of  Technology Bill  had  the  effect  of terminating  the  status of the  petitioners  as  Government servants  by  the President as also the argument  raised  on their behalf that their lien had been terminated under  the Fundamental   Rules  without  their  consent.   The   Punjab decision  can-not therefore apply to the case  as  presented before us. In  the  result  the appeals fail  and  are  dismissed  with costs.. There will be one set of hearing fee. V.P.S.               Appeals dismissed. 836