RULYA RAM Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is a permanent Government servant and is posted as a Senior Scientific Assistant at the Indian Agricultural Research institute. New Delhi (hereinafter called as 'the Institute'). The Indian Council of Agricultural Research, New Delhi (hereinafter called 'the Council'), was registered under the societies Registration Act, 1860, with effect from the 1st April, 1966. The Government of India decided to transfer the administrative control of the Institute to the Council. A memorandum dated 21st of February 1966 was issued by the Government of India (Annexture 'A' to the writ petition), conveying the aforesaid decision. (t has been stated in the memorandum that as a result of the above decision the staff employed at the Institute will become surplus to the requirements of the department of Agriculture (of the Government of India), and therefore, the council will employ such of the staff (both gazetted and non-gazetted) employed at the Institute as are willing to serve the Council. On employment by the Council they will be governed by terms and conditions set out in paragraph 2 of the memorandum. Briefly these terms and conditions are that the staff will continue to be entitled to the pensionary benefits in accordance with the provisions of Ministry of Finance mernorndum No. F.2 (6)/EV(A)/62. dated the 5th of November 1964, and will be required to subscribe to a Provident Fund to be establised by the Council. The amount of leave due to the staff will be regulated in accordance with the provisions of Ministry of Finance memorandum No. F. 1(13)E IV/A/61, dated the 29th of September 1965. The grant of pay, leave, travelling and other allowances, and other service conditions of the staff shall be regulated mutatis mutandis in accordance with the Fundamental and Suplementary Rules and such other rules and orders as are issued by the Government of India from time to time. The existing inter se seniority of the staff in the Institute will be maintained. On employment by the Council the staff shall cease to be in Government service and will be governed by the Staff Regulations of the Council. Paragraph 3 and 4 of the aforesaid memorandum may next be reproduced.

(2.) Pursuant to the aforesaid memorandum, a letter dated the 21stofFebri-ary 1966, together with Forms I and II, was issued to the petitioner copies Annexnres 'B', 'B-1' and 'B-2' to the petition). The letter simply reiterates the position explained in the memorandum. According to paragraph 3 of the letter the petitioner was told that if he was agreeable to the arrangement proposed he should signify the same in the enclosed Form I on or before the 26th of March 1966 and if he was not agreeable then in paragraph 4 of the letter he was asked to signify his un-willingness in the enclosed Form II. lt was futher stated in paragraph 5 of the letter that if he was not agreeable t... the proposed arrangement or if he did not send any reply within the specied time, the Government would be constiained to adopt the proce'ure prescribed for dealing with Government servants whose posts hid been abolished

(3.) According to the petitioner the Institute with all its Divisions still continues to exit and the same type of personnel are required for serving it. The Council has undertaken to employ the existing personnel when they resign from Government service and only the admini-trative control is prposed to be made over to it. All the posts thus exist and there is no abolition of any pasts. It is maintained that the so celled abolition of posts is on paper only and it constitutes an abuse of powe- and is a mere contrivance to deprive the petitioner and others of the benefit and Constitutional protections which are enjoyed by Government servants. In paragraphs 10 and 11 of the petition it is stated that the funds of the Council will come solely from the Union of India and it is the same Cabinet Minister, namely, the Minister of the Government of India for the time being in charge of agriculture who is at the top of the hierarchy of the Council and that the governing body of the Council is subject to the control of the Government both financially and otherwise. Moreover the decision of the Government is binding on the Council and its governing body. The petitioner, therefore, submits tLat the Council is nothing but a fact of Government department in the garb of a registered society." Certain allegations of Malafides have further been made and it is claimed that the petitioner, who is holding his post in a substantive capacity and has a right to hold that post until he reaches the age of superannuation, cannot be asked to leave his service in the manner in which it has been done and it is tantamount to removal within the meaning of Article 311 of the Constitution. The petitioner has also been deprived of the protection of equality of opportunity in the matter of public employment guaranteed by Article 16 (1) of the Constitution. It is pointed out that the alternative method, which has been employed on occasions when similar situation has arisen of transtering administrative control, is to place the employees like the petitioner on deputation or in foreign service while working under the control of the Council. The petitioner has also raised the question of the effect of the action taken by the Government on the quasi-permanent employees in the matter of qualifying service, pension and gratuity. This has been done because the present petition has been filed more or less as a test case on behalf of all the employees who are affected by the above decsion of the Government. The orders and directions which have been sought by the petitioner are for quashing the notices issued by the respondent, being Annexures 'A', 'B', 'B-1' and 'B-2', dated the 21st of February 1966, and for prohibiting the respondent from giving effect to the aforesaid notice etc. An affidavit in reply has been filed by Mr. P. S. Hariharan, Deputy Secretary to the Government of India in the Ministry of Food, Agriculture, Community Development and Co-operation. The events leading to the constitution of the Council have been fully set out in paragraph 6. It has been stated inter-alia that the Government of India with the specific objective of suggesting changes and enquiring into the research set up in India appointed an Agricultural Research Review Team. This Team recommended that the Council should be made into a central body for coordinating and directing agricultural research and education in the whole country. The recommendations were fully considered by the Government and it was felt that co-ordination could best be achieved if all the agricultural research institutions were placed under the Council which is an autonomous body and has got more freedom of action than a Government department. It was with this background that the Government decided to transfer the administrative control of the Institute to the Council with effect from the 1st of April 1966. This led to the situation that the posts in question became surplus to the requirements of the Government and the services of the incumbents of those posts would necessarily have to be dispensed with. But the Government negotiated with the Council and the latter agreed to offer similar posts on the terms and conditions mentioned in the memorandum and the letter which were then issued by the Government. It is further stated that the Council is a distinct entity separate from the Government. It needs the same personnel as were serving the Institute in order to carry out its work. Since the posts, which were Government posts in the Institute before the transfer, became surplus, they were liable to be abolished. Owing to the stay order of this Court, dated the 28th of March 1966, these pests were being continued as shadow posts and the employees were being treated as on foreign service to the Council. But it is maintained that the abolition of parts is a necessary result of the transfer of control of the Institute to the Council and that such abolition is real and not on paper only. It is denied that the decision taken by the Government was mala fide or that it constituted abuse of power or that it was tantamount to a contrivance to deprive the petitioner and others of the Constitutional protection available to a Government servant. It is pointed out that since the Council is a distinct entity, this position does not become different simply because the Cabinet Minister of the Government of India for the time being in charge of Agriculture is the President of the Council or because two out of the innumerable officers of the Council are to be appointed by the Government According to Rule 37, the governing body of the Council is empowered to exercise all powers, though subject to such limits as the Government may from time io time impose in respect of expenditure. The Government of India is accountable to Parliament for the proper functioning of the Council, which is financed out of public funds, but such accountability exists in the case of all public undertakings and autonomous corporations fully or partially financed out of public funds Reference has been made to Article 436 of the Civil Service Regulations which lays down the procedure to be adopted for dealing with a case when a post is abolished. According to Mr. Hariharan, the case of the petitioner will be examined and dealt with strictly in accordance with the said Article. As regards the transfer on foreign service or sealing on deputation, it is pointed out that the present case is not one of transfer of a few Government employees to the administrative control of another department. It is denied that any quesion arises of taking away the protection of equality of opportunity guaranteed by Article 16 of the Constitution.