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Himachal Pradesh High Court · body

2001 DIGILAW 53 (HP)

Capt. Randhir Singh Salhuria v. State of H. P.

2001-04-09

C.K.THAKKER, LOKESHWAR SINGH PANTA

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JUDGMENT C.K. Thakker, C.J. 1. Admitted. Learned Advocate General appears and waives service of notice of admission on behalf of the Respondents. In the facts and circumstances of the case and with the consent of parties, the matter has been taken up for final hearing today. 2. This petition is filed by the petitioners for an appropriate writ, direction or order quashing and setting aside Notification Annexure PD issued by the Government of Himachal Pradesh through the Department of Youth Services and Sports dated December 27, 2000 as violative of Fundamental Rights guaranteed in Part III of the Constitution. A further prayer is made permanently restraining the Government from taking any action on the said Notification and changing service conditions of the petitioners. 3. The case of the petitioners is that in 1961, a Mountaineering and Allied Sports Institute of Adventures was founded under the guidance of the first Prime Minister of India, Pt. Jawahar Lal Nehru keeping in view its benefit for the national security. In 1966, during the Reorganisation of States, the State of Himachal Pradesh came into existence. In 1975, the Mountaineering and Allied Sports Institute spread over the State as a result of which several students showed keen interest at National as well as International level. It was stated by the petitioners that the Institute is having International reputation. 4. The grievance of the petitioners in the present petition is that an action is sought to be taken by the Respondents by which the status of the petitioners is sought to be adversely affected in the light of decision taken by the Government vide Annexure PD dated December 27, 2000. The said decision reads as under: I am directed to refer to the subject cited above and to say that the Government has approved the proposal to constitute the Directorate of Mountaineering and Allied Sports, Manali as a society with the name "Himalayan Institute of Mountaineering and Adventure Sports." You are therefore requested to get the society registered under the Societies Registration Act, 1860 and send the Registration Certificate along with relevant record to this office at the earliest, so that the Notification could be issued. 5. We have heard the learned Counsel for the parties. 5. We have heard the learned Counsel for the parties. It was contended on behalf of the petitioners that once a decision is taken that a society will be registered under the provisions of Societies Registration Act, 1860 and the petitioners services would be placed at the disposal of the said society, the provisions of Part XIV of the Constitution including the provisions of Article 311 will not be applied to them. Such action would thus violate the provisions of the Constitution and it cannot be taken without extending opportunity of hearing to the petitioners and following principles of natural justice and fair play. It is, therefore, liable to be set aside. 6. An affidavit-in-reply is filed by the Respondents. In the reply, it is admitted that the decision has been taken to convert the Directorate of Mountaineering and Allied Sports, Manali, into a Society and the said decision, according to the deponent, had been taken with a view to achieve the following objectives : (i) To introduce professionalism in the departmental activities and to develop commercial outlook in the service oriented activities. (ii) To develop service oriented activities in a self resource generating manner to expand their scope, variety and range. (iii) to harness the initiative of staff in promoting adventure tourism, reward performances in the scope of incentive out of resources generated by the Society through its own efforts. (iv) To raise resources for promotional activities by innovative methods and to secure the necessary autonomy for such efforts. (v) To make optimum use of the assets created by the Government and to make them self sustaining. 7. It is then stated that the decision is taken to convert the Institute a society in the larger interest of the institute as the intention of the Government is to give more functional autonomy and professionalism in its functioning. It is asserted that such conversion will in "no way either adversely affect its activities or have any adverse affect on the service conditions of its employees". It is asserted that such conversion will in "no way either adversely affect its activities or have any adverse affect on the service conditions of its employees". It is also stated that the service conditions of the petitioners will be fully protected and even after conversion of Mountaineering and Allied Sports, Manali, into a Society, "the existing officers/officials of the Directorate of Mountaineering and Allied Sports shall continue to function as Government servants and the conditions of service of the employees in position and to be transferred to the society on the date of its incorporation shall continue to be governed by such rules to which they were/are being governed before their transfer to the Society". It is stated that the petitioners will function as "Government servants for all intents and purposes" and their salary and other allowances will continue to be paid by the Government as annual budget/grant. It is however, stated in the affidavit that the Government will not give any grant-in-aid to the society since all existing staff and establishment costs will continue to be borne on the Government budget. 8. The learned Counsel for the petitioners made a statement a the Bar at the time of hearing of the petition that so far as conversion of Institute into a Society under the Societies Registration Act, 1860, is concerned, the petitioners do not challenge. In our opinion, the said concession is in consonance with law. As held by the Supreme Court in several cases a policy decision can be taken by an appropriate authority, if such decision is otherwise legal, valid and lawful. The counsel, however, made grievance that an action, sought to be taken against the petitioners by transferring them and/or sending them to the Society without affording an opportunity or without taking their options is clearly contrary to law and inconsistent with the provisions of the Constitution. 9. In this connection, our attention, was invited to two decisions of the Apex Court. In State of Mysore v. H. Papanna Gowda and Anr. AIR 1971 SC 191, almost a similar question arose before the Supreme Court. In that case a Notification was issued on September 29, 1965, under which a large number of research and educational institutions were transferred to the University with effect from October 1, 1965, which were previously under the control of the State Government. AIR 1971 SC 191, almost a similar question arose before the Supreme Court. In that case a Notification was issued on September 29, 1965, under which a large number of research and educational institutions were transferred to the University with effect from October 1, 1965, which were previously under the control of the State Government. The Agricultural Research Institute, Mandya, where the Petitioner was working was also one of such Institutions when the said action was taken. He approached the High Court by contending that the action would amount to his removal from civil services under the State and was thus violative of Article 311 of the Constitution. 10. Upholding the contention and setting aside the action of the State, the Supreme Court observed : 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 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 employee of the Government on his transfer to the University was to be protected to the extent that the 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 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. (Emphasis supplied) 11. The principle laid down in H. Papanna Gowda was reiterated by the Apex Court in S.K. Saha v. Prem Prakash Agarwal and Ors. (1994) 1 SCC 431. In S.K. Saha also, the Appellant was appointed as Foreman, Cycle Parts Factory, by the erstwhile Madhya Bharat Government in October 31, 1956. His services were transferred from Government Department to an autonomous body. He contended that the action was violative of Article 311 and since he was holding civil post, he could not be transferred to an autonomous body. 12. The Supreme Court upheld the contention and following H. Papanna Gowda allowed the petition and set aside the action observing thus : Where all the functions of a Department of the State or Union Government along with posts are transferred to some University or Government Corporation, which of late has become a common feature, in view of the fact that it had been accepted at all levels that public interest is better served if the activities which were part of the department are entrusted to some autonomous Corporation or University, a question arises as to how to transfer the services of the holders of such posts having protection of Article 311 of the Constitution. A situation is created where the holders of the posts are in service of the State Government, but the activities of the whole department are transferred to some Government Corporation or undertaking. How can the State retain the members of such service against those posts when the department itself becomes defunct. A holder of any post in such a department has no right to question the wisdom of the State to entrust the activities of the department to an autonomous body. It is true in view of Article 311, merely on this ground, the holders of civil posts cannot be dismissed or removed from service. A holder of any post in such a department has no right to question the wisdom of the State to entrust the activities of the department to an autonomous body. It is true in view of Article 311, merely on this ground, the holders of civil posts cannot be dismissed or removed from service. However the State can give an option to the holders of such posts either to be absorbed in-some other department or to leave the service of the State and to opt for the service of the Government Corporation or undertaking in question. Once any such employee of the State opts for the service of the Corporation, he shall cease to be in the service of the State. In such a situation, it cannot be held that the holder of the post has been deputed to the Corporation holding his lien with the State Government. 13. The ratio laid down in the above two decisions, in our considered opinion, applies to the facts of the present case as well. It is not disputed by the Respondents in their affidavit-in-reply that the petitioners are holding civil posts. They are, therefore, governed by Part XIV of the Constitution and are protected by Article 311 of the Constitution. It is also not in dispute that an autonomous society is sought to be created for Mountaineering activities. The question is whether the services of the petitioners can be transferred or the petitioners can be sent to such a society registered under 1860 Act. The point is no longer res integra and it has been held that a person, who is holding a civil post and protected by Part XIV of the Constitution cannot be transferred to an autonomous body (in the present case a Society registered under the Societies Registration Act, 1860). Such transfer and/or action without the consent and inviting options and/or observing principles of natural justice would amount to removal within the meaning of Article 311 of the Constitution and cannot be taken. 14. It is, no doubt, asserted in the affidavit-in-reply that the service conditions of the petitioners will not be adversely affected and "they will continue to remain as Government servants". 14. It is, no doubt, asserted in the affidavit-in-reply that the service conditions of the petitioners will not be adversely affected and "they will continue to remain as Government servants". In our opinion, however, the legal position is fairly well settled and as held by the Supreme Court in above two decisions, once an autonomous body is created and/or established and the services of civil servants have been transferred to such an autonomous body, employees sent there would not continue to remain as "civil servants" under the State. 15. For the foregoing reasons, in our opinion the petition deserves to be allowed to the extent that no action can be taken for transferring the petitioners or sending them to a society registered under the Societies Registration Act, 1860, except in accordance with law. It is, however, clarified that it is open to the State to take appropriate action in accordance with law. The petition is allowed to the above extent. In the facts and circumstances of the case, there shall be no order as to costs. CMP No. 133/2001 16. In view of the disposal of the main writ petition, the present application is also disposed of and the interim order is vacated.