A. N. Grover, J. ( 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. "3. 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. "3. It has, therefore, been decided to ascertain the willingness or otherwise of all the officers and staff of the said Institute (excepting those belonging to the Central Secretariat Service and others who are at present on deputation with the said Institute) for their absorption by the Indian Council of Agricultural Research The service of those who do not opt for absorption by the Indian Council or A. gricultural Research, will be dispensed with under Article 436 of the Civil Service Regulations (in the case of permanent employee) or under Rules 5 and 7 of the Central Civil Services (Temporary Service) Rules, 1965 (in the case of temporary and quasi-permanent employees respectively ). 4. All the officers and staff (excepting those belonging to the Central Secretariat Service and others who are on deputation with the said Institute) are hereby required to give their option in the prescribed form on or before the 26th March, 1966. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The option once exercised shall be final. In case any one fails to exercise the option within the time allowed, he will be liable, if he is a permanent Government servant, to be dealt with in accordance with the procedure prescribed for dealing with Government servants whose posts are abolished and if he is temporary or quasi-permanent, he will be liable to be dealt with in accordance with the provisions of the Central Civil Services (Femporary Service) Ru e, 1965. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " ( 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 theGovernment 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. 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 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. ( 4 ) THE case of the petitioner has been argued by Mr. N. C. Chatterjee. It may be mentioned that his case alone can be considered, as it is not possible to decide the cases of all the employees working in the Institute who are affected by the aforesaid decision of the Government in the absence of any petition filed on their behalf. The whole emphasis of Mr Chatterjee has been mainly on two matters. In the first place it is stated that a person, who substantively holds a permanent post, has a right to continue in service, subject to the rules of superannuation and compulsory retirement. The whole emphasis of Mr Chatterjee has been mainly on two matters. In the first place it is stated that a person, who substantively holds a permanent post, has a right to continue in service, subject to the rules of superannuation and compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service, and as such it is in the nature of a penalty and amounts to removal In other words, termination of the services of apermanent servant otherwise than on ground of superannuation or compulsory retirement must per se amount to his removal, which would attract the applicability of Article 3 II (2) of the Constitution. For this proposition reliance has been placed on Moti Ram Deka v. General Manager. N. E. F. Railways, Maligaon, Pandu. in which the validity of Rules 148 (3) and 149 (3) of the Indian Railway Establish ment Code came up for consideration These rules were struck down by the Supreme Court on the ground that they were inconsistent with the provisions of Article 3 II (2) of the Constitution. The submission of Mr. Chatterjee, therefore, is that the petitioner has a right to continue in service subject to the rules of superannuation and compulsory retirement and that right has now been invaded by the decision taken by the Government by the impugned notices by which he has been given the option to accept employment under the Council, otherwise he would be dealt with in accordance with the procedure prescribed for dealing with Government servants whose posts are abolished. ( 5 ) IN the ultimate result the petitioner shall henceforth cease to be in Government service even before the age of suppernnuation and compulsory retirement. His right to continue in service has thus been defeated. ( 6 ) THE second point convassed by Mr. Chatterji is founded on the allegation that the abolition of the post of the petitioner along with the posts of the other employees of the Institute is a paper abolition and this has been done with the object of depriving the petitioner of the Constitutional benefits and protections as also other safeguards which are provided by various statutory rules of regulations in the matter of service of permanent Government servants. It is suggested that this can well be called a fraud on the Constitution, because the same posts are being retained under the Council carrying the same grades and almost the same conditions of service, the over all control being of the Government, but the petitioner is being denied the fundamental protections which the Constitution accords to Government servants. Mr. Chatterji has sought to invoke the observations of Gajendragadkar J. (as he then was), in M. R Balaji etc: v. The State of Mysore. It has been said by him that afraud on the Constitution does not necessarily mean that the impugned action is actuated by mala fides. An executive action which is patently and plainly outside the limits of the Constitutional authority conferred on the state is struck down as being ultra vires the state authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is convert or latent, the said action is struck down as being a fraud on the relevant Constitutional power. It is in this connection that Courts often consider the substance of the matter and not its form. ( 7 ) MR S. N. Shankar for the Union points out that there are certain aspects of the problems posed by Mr. Chatterji which have not been adverted to by him and which could clinch the matter. According to him it is essential to consider- (A) whether there is any prohibition or inhibition in the Constitution to abolish post of a Government servant ; (B) If a post is abolished. , then what has the Government servant to do; and (E) whether in the present cases as a matter of fact the post held by the petitioner or the posts held by the other employees of the Institute have r. ot been abolished. As regards the applicability of Article 311 (2) of the Constitution and the protection afforded by it. Mr. Shankar has relied on the law laid down in Parshotam Lal Dhingra v. Union of India", which has become locus classious so far as service matters are concerned. As regards the applicability of Article 311 (2) of the Constitution and the protection afforded by it. Mr. Shankar has relied on the law laid down in Parshotam Lal Dhingra v. Union of India", which has become locus classious so far as service matters are concerned. At page page 47 S. R. Das C. J. , speaking for the Court, said that it is only in those cases where the Government intends to inflict the three forms of punishment mentioned in Article 311 (2) that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It follows, therefore, that if the termination of service is south to be brought about otherwise then by way of punishment, than the Government servant whose service is so terminated cannot invoke the protection of Article 311 (2), It was further observed at pages 47 and 48- "it has already been said that where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Article 311 (2 ). " ( 8 ) THE above passage contains the gist of the right which a Government servant has to hold the post, and it is quite clear that he is eniitled to hold it until he attains the age of superannuation or is compulsorily retired, but there are certain exceptions and one of these exceptions is where the post itself is abolished. In other words, in the event of the abolition of the post itself, the Government servant cannot possibly have a right to hold that post. If any other view were to be entertained, it would lead to the extraordinary result that although the post stand, abolished, the right of the servant still exist to hold a post which is not-existent. In other words, in the event of the abolition of the post itself, the Government servant cannot possibly have a right to hold that post. If any other view were to be entertained, it would lead to the extraordinary result that although the post stand, abolished, the right of the servant still exist to hold a post which is not-existent. Article 436 of the Civil Service Regulations indisputably contemplates abolition of office held by an officer, and t provides for reasonable notice to be given to him when he is in permanent employ before his services are dispensed with. Mr. Chatterji indeed could not and has not shown any principle or authority according to which the Government is debarred from abolishing even a permanent post. Mr. Shankar is therefore, right in maintaining that there is no Constitutional or other prohibition against the abolition of a post by the Government, and if a post is abolished, then it is equally clear that the right of a servant to hold that post comes to an end. The protection which is conferred by Article 16 and Article 3 II (2) of the Constitution can be invoked only by those who would be entitled to the same at a given point of time. It is not possible to appreciate that a Government servant, whose post has been abolished in exercise of lawful and legitimate power of the Government to do so, can still complain that he has been deprived of the protection and bene fit conferred on him under the Constitution while he was a Government servant and was holding a post or had a right to hold it. ( 9 ) MY attention has been invited to Mehswari Prasad and others v. Regional Employment Officer, Bihar in which the petitioner held posts in quasi-permanent capacity in the National Employment Service under the Government of India. Subsequently, as a result of administrative changes, the Employment Exchange Organisation, including the Training Section, ceased to be the Central Government Organisation and became the State Government Organisation with effect from the 1st of November, 1956. Notices were served on the employees of the Employment Exchange Organisation that there posts would be abolished, but that the State Government had agreed to take over their services and that it would be open to the employees to accept employment under the State Govarnment. Notices were served on the employees of the Employment Exchange Organisation that there posts would be abolished, but that the State Government had agreed to take over their services and that it would be open to the employees to accept employment under the State Govarnment. The notices which were issued in that case were very similar to the notices issued in the present case. At pages 558 and 559 this is what was said by the Division Bench- "what, therefore, has happened is that the Central Government organisation having been abolished, with its abolition naturally all the posts under it are also abolished, and the Government of India has, as stated in para 7 of the counter-affidavit by the opposite yarty, purely as an ex gratia measure arranged to have such person, whose services were dispensed with by the Government of India employed by the State Government on terms and conditions of services as prescribed by the State Government. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insuch circumstances it cannot be said that the notices amounted to reduction in rank so as to the provisions of Article 3 II of the Constitution. The posts under the Government of India having been abolished because of abolition of the organisation itself, the question of retention of the services of the petitioners with the Union of India did not asise. "with respect I follow the above decision and held that for the reasons, which have already been stated, the conatention of Mr. Chatterjee on the first point cannot be accepted. ( 10 ) AS regard the second point agitated by Mr. Chatterjee, I fail to see how from the material which has been placed on the record it can be found that any fraud on the Constitution has been perpetrated by the Government. Chatterjee on the first point cannot be accepted. ( 10 ) AS regard the second point agitated by Mr. Chatterjee, I fail to see how from the material which has been placed on the record it can be found that any fraud on the Constitution has been perpetrated by the Government. The mere fact that the same posts are to be filled up under the Council or that the monetary or other control over the Council will be predominantly that of the Government, can by no means justify any such suggestion as has b. en made by Mr. Chatterjee that the intention was to deprive the petitioner of the benefits, Constitutional or otherwise, which he enjoys as a Government servant. The Council has been given the control over the Institute in the larger interest of agricultural research and development which is for the benefit of the entire country. The council has been set up as a distinct body and entity and it consists not only of Government officials but also of a number of representatives from various branches of life and learning. The case of M. R. Balaji etc on which Mr Chatterjee relied was altogether different. There an order of the Mysore Government reserved seats for backward classes in technical institutions and catagarised the backward classes on the sole basis of caste, which according to their Lordships was not permitted by Article 15 (4) of the Constitution. It was held that the reservation of 66 per cent seats for the Schedule Castes and Schedule Tribes made by the impugned order was clearly inconsistent with the concept of the special provision contained in Article 15 (4) It was in that context that the observations referred to before were made and it was held that the impugned order was a fraud on the Constitutional power conferred on the State by Article 15 (4 ). There is no parallel whatsoever between the facts of that case and of the present case, and I am altogether unimpressed by the suggestion which was forcefully pit on behalf of the petitioner, namely that the decision of the Government and the proposed action constitute a fraud on the Constitution. ( 11 ) IN the result the petition fails and is dismissed, but I leave the parties to bear their own costs.