Hanumanthappa K. vs State of Karnataka and Others

In this writ petition presented under Art. 226 of the Constitution, of India, a Reader in the service of the Bangalore University has questioned the validity of S. 52 of the Karnataka Universities Act, 1976 (hereinafter referred to as the Act), which empowers the Chancellor of the Universities established under the Act, to transfer an employee of oneUniversity to another University, as also the legality of the order by which the petitioner has been transferred to the Gulbarga University.

The relevant facts, in brief, are as follows:

The Act has been enacted by the State Legislature as a uniform law relating to the Universities in the State. S. 3 of the Act provides for the establishment of the Universities. On the corning into force of the Act, the three Universities which existed earlier, came to be established as the Universities under the Act; they were, the Bangalore University, the Karnataka University and the Mysore University. The Act was amended by the Karnataka State Universities (Amendment) Act, 1980. S. 3 of the amending Act, amended S. 3 of the Act and by that provision, two more universities, namely, Gulbarga and Mangalore universities, were established. By S. 18 of the amending Act sub-section (3) was inserted into S. 72, to provide as a transitory measure that the statute''s/ordinances and regulations of the Karnataka University shall be deemed to be the statutes, ordinances and regulations of the Gulbarga University, and those of the Mysore University shall be deemed to be the statutes ordinances and regulations of the Mangalore University. According to the provisions of the Act, each of the Universities constitutes a body corporate. The petitioner was appointed as a reader in the service of the erstwhile Bangalore University on 5.7.74. By virtue of the provisions of the Act, he became an employee of the Bangalore University constituted under the Act. 3. 52 of the Act empowers the Chancellor to transfer an employee of one university to another university. By en order made by the Chancellor on 5.5.81 (Annexure-B), the petitioner was transferred from the Bangalore University to the Gulbarga University. Aggrieved by the said order of transfer, the petitioner has presented this writ petition to this Court.

In the petition, the petitioner inter alia has pleaded as follows:

S. 52 of the Act is violative of Art. 14 of the Constitution as it confers unguided and uncontrolled power to transfer an employee of one university to another university. The impugned order is invalid as the Governor of the State is the Chancellor and he has not made the order on the advice of the Council of Ministers. The order is also bad as the Chancellor has failed to specify the conditions of service applicable to the petitioner in the transfer order, in spite of such requirement contained in S. 52 of the Act. Under the statutes of the Bangalore University, a pension scheme has been introduced to the members of the staff and there is no corresponding scheme introduced in the other universities of the State. He has been guiding three students for their doctorate degree and in view of the transfer, their doctoral course gets frustrated, The transfer was not really made for administrative convenience.

No statement of objections has been filed. However, in the objection statement filed in connection with the prayer for vacating the stay, it is specifically stated that the order of transfer was effected in recognition of the ability of the petitioner to give impetus to the newly formed Gulbarga University, without detriment to his existing service conditions and the transfer was effected on account of administrative convenience as permitted by Section 52 of the Act.

Shri Mohandas N. Hegde. learned counsel for the petitioner urged the following contentions:

(1) S. 52 of the Act is void as offending Art. 14 of the Constitution as it confers unguided and uncontrolled power on the Chancellor to transfer an employee of one university to another university;

(2) As under S. 10 of the Act, the Governor of the State is the Chancellor, in view of Art. 163 of the Constitution he was required to act on the aid and advice of the Council of Ministers and as the impugned order has not been made on the advice of the Council of Ministers, it is invalid;

(3) S. 52 of the Act requires'' the Chancellor to specify the conditions of service to which an employee (transferred from one university to another university is entitled to and usno such condition is specified in the order of transfer, it is ultra vires the power of the Chancellor under S. 52 of the Act; and (4) A relevant fact, namely, that the petitioner was a guide for three students pursuing doctorate degree course and that under the rules regulating the said course, there is no provision for change of guide, has not at all been considered though by the transfer of the petitioner, the doctorate degree course of the three students stands frustrated.

The first contention urged for the petitioner is that S. 52 of the Act confers an uncontrolled and unguided power on the Chancellor and therefore, it is violative of Art. 14 of the Constitution. There can be no doubt that if a statutory provision confers an uncontrolled and unguided power on the designated authority, such a provision would be violative of the basic right of equality guaranteed under Article 14 of the Contitution. Jyoti Pershad v. Administrator for the Union Territory of Delhi, AIR 1961 SC 1602. However on. the wording of S. 52 of the Act, I am unable to agree that the section confers any unguided or uncontrolled power on the Chancellor, S. 52 specifically provides that the Chancellor, may for administrative reasons, transfer an employee of one university to another university. The use of the words ''administra,tive reasons'' gives sufficient guidance and indicates that a transfer can be effected only for meeting the administrative exigencies of the universities and not for any other purpose. Further the section also provides that when the Chancellor exercises his power to transfer an employee of one university to another University, the conditions of service to which the transferred employee would be entitled to, should be specified in the order of transfer. Therefore, it is clear, both for the purpose of exercising the power as also for the purpose of protecting the interests of the transferred employee, specific guidance is given in the section itself. Therefore, I reject the first contention.

The second contention urged for the petitioner is that as S. 10 of the Act provides that the Governor of Karnataka shall, by virtue of his office, be the Chancellor of the University, he was required to act on the aid and advice of the Council of Ministers and as the impugned order is not made on such advice, it is invalid. Art. 163(1) provides, that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion. The wording of Article 163 unmistakably indicates that the requirement of the said article applies to the exercise, of the constitutional functions in the capacity of the Governor. In respect of those functions, except those which under the provisions of the Constitution he is required to exercise on his own discretion, the Governor is required to act only on the aid and advice of the Council of Ministers. The power to effect transfer of the servants of one university to another under S. 52 of the Act is not one of the functions conferred on the Governor. It is also not one of the functions, conferred on the Governor under the provisions of the Constitution. It is a power exercisable by the person holding the, office, of the Chancellor by virtue of the office under the provisions of the Act. Though S. 10(1) provides that the Governor of Karnataka shall, by virtue of his office, be the Chancellor of the University, still the office of the Chancellor is an independent office created by the Act. The Chancellor is one of the officers of the University as is evident from S. 9of the Act. He is the Head of the University as declared by S. 10(2) and his powers are those conferred on him under the Act or the statutes as provided in S. 10(3). There is no requirement under any of the provisions of the, Act thatthe Chancellor should exercise his powers under the Act on the aid and advice of the Council of Ministers. Hence, there was no obligation on the part of the Chancellor to do so, as rightly contended by the learned Advocate General appearing for the Chancellor. Therefore, I reject the second contention also.

The third contention urged tor the petitioner is that whereas the earlier part of S. 52 of the Act empowers the Chancellor to transfer an employee of one University to another University, the latter part of the same provision provides that the conditions of service to which the employee so transferred would be entitled to in the university to which he is transferred should be specified in the order of transfer and as in the present case the said requirement has not been complied with, the order of transfer is invalid.

In order to appreciate this contention, it is necessary to set out the provisions of S. 52 of the Act and the order of transfer. S. 52 reads:

"52. Transfer of employees.-Notwithstanding anything in any contract, agreement or in any other law for the time being in force, the Chancellor may, for admistrative reasons, transfer any person holding any post in the University to any other University established under the Act and the person so transferred shall carry with him to the University to which he is transferred such conditions of service as may be specified in the order of transfer. Such person shall on transfer, be deemed to be appointed by the competent authority of the other University. For purposes of ordering transfers under this section the Chancellor shall be deemed to be the appointing authority in respect of the posts held by the persons transferred." (underlining (italics) by me)

The order of transfer reads:

"KARNATAKA GOVERNOR''S SECRETARIAT

No. GS 32 BUM 81

Raj Bhavan, Bangalore, Dated: 5-5-1981.

NOTIFICATION

In exercise of the powers conferred under Section 52 of the Karnataka State Universities Act, 1976, the Chancellor is pleased to transfer Dr. K. Hanumanthappa, Reader in Commerce of Bangalore University to Gulbarga University on Administrative Grounds with immediate effect.

By Order of the Chancellor, Sd/- K.P. Singh, Secretary to Governor."

The learned counsel for the petitioner contended that though the wording of the section in that the transferred person shall carry with him to the University to which he is transferred such conditions of service as may be specified in the order of transfer, having regard to the wording and purpose of that requirement, the specification of the conditions of service to which the petitioner would be entitled to in the Gulbarga University, in the order of transfer was a must and non-specification of such conditions of service renders the transfer order invalid. He submitted that the word ''may'' used in the latter part of the first sentence must be construed as shall or must. On this basis, he submitted that as the conditions of service which would be available to the petitioner in the Gulbarg University have not been specified in the order of transfer, the order of transfer is liable to be set aside on the ground that it is not in conformity with the requirements of the provisions of S. 52 of the Act.

The learned Advocate General appearing for the Chancellor and Sh S.C. Javali, learned counsel appearing for the University strenuously contended as follows:

The power conferred on the Chancellor to transfer an employee of one university to another university in the first part of S. 52 is absolute. The requirement to specify conditions of service to which the transferred employee would be entitled to in the university to which he is transferred is only directory. Therefore non-incorporation of the same in the order of transfer does not render the order of transfer invalid. The Chancellor does not become functus-officio by passing the order of transfer. It is always open to him subsequently to specify the conditions of service to which the petitioner is entitled to.

Having regard to the rival contentions urged for the parties, the question that arises for my consideration is whether the Legislature, when it staled that the transferred official shall carry with him to the university to which he is transferred such conditions of service as may be specified in the order of transfer, it meant that such conditions of service must be specified in the order of transfer or not. Ordinarily, whenever the word ''may'' is used in a statutory provision for the purpose of conferring discretionary power, it means that the authority has the power or liberty to exercise that power or not to exercise it, depending upon its discretion. It is permissive and not compulsive. But, there is a settled rule of construction, namely, that whenever the word ''may'' is used to confer a power coupled with an obligation to comply with certain conditions simultaneous with the exercise of the power, for the benefit of the person who would be affected by the exercise of the power, it casts a duty on the authority to comply with those conditions and a corresponding right on the person for whose benefit the condition is imposed, to enforce such compliance. In such a case, the legislative intention, which is always of paramount importance, in incorporating the condition for the benefit of the persons who would be affected by the exercise of the power cannot be allowed to be defeated by interpreting the word ''may'' as permissive and not compulsive.

Therefore, in construing the true meaning of the word ''may'' appearing in the second part of the S. 52, the intention of the Legislature in incorporating the words ''as may be specified in the transfer order'' should be ascertained on a consideration of the scheme of the Act, as discernible from its provisions. The reason for incorporating a specific condition that the conditions of service to which the transferred employee would be entitled to in the order of transfer itself, is not far to seek.

(1) In the 1st instance it is necessary to note that the transfer provided for in S. 52 of the Act is not transfer as ordinarily understood in the service parlance or under the general law of master and servant. Ordinarily, transfer means the transfer and posting of an employee from one place to another place or from one post to another post to which he can legitimately be transferred but under the same master. At the place to which he is transferred also he continues to be the servant of the same master. Conditions of service would also be the same at the transfer red place or post to which the employee is transferred. Such a power of transfer need not even be specifically conferred, because every master has got an inherent power to transfer his employee to any place or post within the scope of his employment for the purpose for which the concerned person is employed. The transfer provided for in S. 52 of the Act is not a ''transfer of that kind. It is an extraordinary transfer. Though under S. 10 of the Act, the Governor of the State of Karnataka is designated as the Chancellor for all the universities established under the Act, the fact remains that by the force of the provisions of S. 3 of the Act each University is a separate autonomous body. Though under S. 49(6) of the Act. the Chancellor is the appointing authority for all. the teaching posts in all the universities constituted under the Act and by virtue of S. 50 of the Act the Chancellor also happens to be the appointing authority for all the non-ministerial posts the pay of which exceeds Rs. 1599, the fact remains that immediately after the appointment of a person by the Chancellor, the person so appointed becomes the servant of that particular university to which he is appointed by the Chancellor.

(2) The above position stands explained by the decision of this Court in Ganesh Rama Naik v. Deputy Commr. N.K., (1971) Mys. L.J. 140. That case arose under the provisions of the Karnataka Village Panchayats and Local Boards Act. Section 80 thereof empowers the Deputy Commissioner to appoint the Secretary of each of the Panchayats within his district. If that case, the legality of an order of transfer of a secretary from one panchayat to another panchayat by the Deputy Commissioner, North Kanara, was questioned. This Court held that though under S. 80 of the said Act, the Deputy Commissioner was the appointing authority, after the person is so appointed, he becomes the servant of the concerned panchayat and the Deputy Commissioner had no power to transfer the secretary of one panchayat to be the secretary of another panchayat in his district unless and until all the secretaries were absorbed in a common cadre of the Local Government Service. The position is similar in this case. The Chancellor is the appointing authority for the posts specified in Sec. 49(6) and S. 50 of the Act for all the universities. But after the appointment order is issued and the concerned person joins duty, he becomes the servant of that university to which he is appointed.

(3) In view of the above position arising from the provisions of the Act, it is clear that but for S. 52 of the Act, it would not have been competent for the Chancellor to transfer an employee of one university to another university. The effect of an order made under S. 52 therefore, would be, a person so transferred ceases to be an employee of the university which was his master and becomes the servant of another university to which he stands transferred, which becomes his new master. Further, there is no provision in the Act which provides for prescribing common conditions of service for the employees of all the universities in the State. S. 35(m) of the Act which provides for the prescribing of the conditions of service including emoluments of the employees of the university reads:

"35. Statutes.-Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely:

** ** **

(m) the conditions of service including emoluments of the employees of the University"

The Senate of the concerned University is vested with the power to make the statutes regulating the conditions of service of the employees of that university. Thus there is no common authority which is empowered to lay down uniform conditions of service of the employees of all the universities. Though S. 36(4) of the Act empowers the Chancellor towithhold his assent to any statute and S. 36(5) provides that a statute shall come into force only after it is assented to by the Chancellor, there is no provision which compels the Senate of all the universities or the Chancellor to prescribe similar conditions of service. Therefore the inter University transfers are sure to affect the conditions of service of a transferred employee and his continuity of service unless specifically protected.

(4) It is in the context of the provision for the establishment of separate Universities under the Act and the extraordinary power of transfer conferred on the Chancellor under S. 52 of the Act, the Legislature has taken care to incorporate in the section itself a condition to the effect that the conditions of service which shall be applicable to a person transferred from one University to another University should be specified in the order of transfer itself. Non-specification of conditions makes the transfer unworkable and in any event adversely affects the transferred employee. Take for instance, the impugned order of transfer. It merely states that the petitioner has been transferred to the Gulbarga University with immediate effect. The order is silent regarding the conditions of service such as pay, allowances, leave and pensionary benefits to which the petitioner would be entitled to in Gulbarga University. It was submitted that pay-scale for the posts in all the Universities are of a similar pattern. Assuming it to be so, still the transfer gives rise to several questions, viz.,- (i) Even if the pay-scale is similar, whether the pay last drawn in the Bangalore University would or would not be his pay in the Gulbarga University.

(ii) Even if his pay is protected, on what date he would be entitled to draw his next increment? i.e., whether the part of incremental year during which he has worked in Bangalore University does or does not count for increments in Gulbarga University?

(iii) Whether the unutilised leave accrues to his benefit or it lapses.

(iv) Whether the service rendered by the petitioner as Reader in the Bangalore University does or does not count for seniority?

(v) What is the joining and preparation period?

(vi) How the period after his relief from the Bangalore University and till the date he joins the Gulbarga University is going to be treated? If it is duty, which University will pay him the salary for the period?

(vii) Whether the petitioner and/or members of his family is/are entitled to travelling allowance or not? If entitled to what is the rate? and which University will pay that amount to the petitioner?

(viii) Whether the petitioner would be entitled to pensionary benefits?

In this behalf it is necessary to state that the petitioner has specifically averred that a pension scheme has been introduced by the Bangalore University and no other University in the State has got such a scheme. This fact has not been controverted.

When I asked these questions to the learned counsels for the respondents the reply was that on all these matters the petitioner could make representation to the Chancellor and that the Chancellor had not become functus officio by passing the transfer order and, therefore, he could pass appropriate orders later.

14(i) It is plain that the Legislature did not intend that a transferred employee should make a representation in respect of every one of these matters and to accept whatever is given to him as and when it is given. On the other hand the Legislature in requiring the specification of the conditions of service in the order of transfer itself, intended to prevent such uncertainty and consequential hardship to the, transferred official. The intention is that he must be made known about the conditions of service to which he is entitled to in the University to which he is transferred, by the order of transfer. The provision is certainly intended to protect the rights and interests of the transferred employees. Therefore that part of S. 52 of the Act which confers power on the Chancellor to specify the conditions of service applicable to an employee of a University transferred to another University in the order of transfer, is indubitably a power coupled with a duty to protect the interest of the official affected by the exercise of the power of transfer. Under the provision, apart from specifying the various conditions categorised earlier, it is also permissible for the Chancellor to give any compensatory allowance to the transferred employee to meet the increase in the expenses required to be incurred by him on account of the transfer.

(ii) Further, once a person is transferred from one University to another and he joins duty at another University he becomes the employee of the latter University. S. 52 provides that he shall be deemed to have been appointed by the corresponding appointing authority of that University. Consequently, the power to regulate his conditions of service, thereafter, stands vested in the Senate of that University and not in the Chancellor. S. 52 therefore confers power, and requires the Chancellor to specify the conditions of service in the transfer order so thai the transferred employee stands vested with those rights before he joins duty at the university to which he is transferred.

(iii) Therefore it appears to me that having regard to the settled rule of construction, it is impermissible to hold that the word ''may'' used in the context of specifying the conditions of service in the order of transfer made under section 52 of the Act ''is only directory and not mandatory

The rule of construction which I am inclined to adopt on the wording of S. 52 of the Act is in accord with the ratio of the decision rendered by the Supreme Court in Rangaswami, v. Sagar Textile Mills (P) Ltd., AIR 1977 SC 1516. In the said case, the Supreme Court was interpreting Clause 20 of the Cotton Textiles (Control) Order 1948 issued under Section 3 of the Essential Supplies (Temporary powers) Act, 1946. The said provision reads thus:

"20(1) The Textile Commissioner may from time to time issue directions in writing to any manufacturer or class of manufacturers or the manufacturers generally regarding the classes or specifications of cloth or yarn, and the maximum or the minimum quantities thereof which they shall or shall not produce during such periods as may be specified in the directions, and they shall comply with such directions."

(underlined (italics) by me

The first part of the clause conferred power on the Textile Commissioner to issue directions in writing to manufacturers for the purpose specified in the clause and the last part of the said clause provided that such directions would be in force ''during such periods as may be specified in the directions'' and the person to whom the said direction was issued should comply with such directions. In the said case, the Textile Commissioner had issued the direction but had not specified the period for which the direction was to be in force, in the direction itself. The question for consideration before the Supreme Court was whether it was obligatory for the Textile Commissioner, having decided to issue appropriate direction, to specify in the order itself, the period for which the direction would remain in operation. The Supreme Court held that though the latter part of the clause stated that the direction should be obeyed during the periods as may be specified in the directions, the requirement to specify such periods was to the benefit of the manufacturers and therefore it should be construed as obligatory. The order of the Textile Commissioner was declared invalid. The relevant portion of the judgment reads:

"2. As held by this Court in State of U.P. v. Jogendra Singh AIR 1963 SC 1618 it is well settled that the word"may"is capable of meaning"must"or"shall"in the light of the context and that where a discretion is conferred upon a public authority coupled with an obligation, the word"may"which denotes discretion should be construed to mean a command. Considering the purpose of the relevant empowerment and its impact on those who are likely to be affected by the exercise of the power, we are clear that the power conferred on the Textile Commissioner to issue directions is coupled with the duty to specify the particular period for. which the directions shall be operative, Directions of the kind envisaged by clause 20 are influenced and justified by exigencies which render it imperative that the directions be reviewed from time to time. That becomes feasible only if the directions are limited expressly to a determinate period of time at the end of which a fresh review of facts and circumstances becomes obligatory. There is a fear that a direction not limited in point of time may continue to operate even after it has outlived its utility for the reason merely that the need to review it is not clearly perceived. Besides, the manufacturers must know, in order that they may organize their business in their own interest as well as in the interest of the community at large as to how long any particular embargo is going to be operative."

In the above paragraph, the Supreme Court reiterated the principles laid down in the earlier decision reported in A.I.R. 1963 SC 1618. In the said case, the Supreme Court was interpreting the provisions of the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947. Rule 4(1) of the said rules empowered the Government to refer any case against any Government servant for enquiry to the Administrative Tribunal constituted under the Rules. Sub-rule (2) of Rule 4 however provided that if a Gazetted Government servant made a request that the case pending against him should be referred to the Administrative Tribunal for adjudication, ''the Governor may refer such case'' to the Administrative Tribunal. In spite of the request made by the respondent therein who was a gazetted Government servant of the U.P. Government, his case was not referred to the Administrative Tribunal on the ground that in view of the word ''may'' used in rule 4(2) it was within the discretion of the Governor either to refer the case to the Tribunal or not. The Supreme Court, affirming the view taken by the Allahabad High Court, held that even though the word ''may'' was used in the rules, the power conferred was for the benefit of the Gazetted Government servants and therefore when a request had been made by the respondent therein who was a Gazetted Officer, it was obligatory on the part of the Governor to have referred his case to the Tribunal and the word ''may'' in the context should be interpreted as ''must''. The relevant portion of the said judgment is to be found in paragraph 8 and it reads:

"Rule 4(2) deals with the class of gazetted Government servants and gives them the right to make a request to the Governor that their cases should be referred to the Tribunal in respect of matters specified in clauses (a) to (d) of sub-rule (1). The question for our decision is whether like the word ''may" in rule 4(1) which confers the discretion on the Governor, the word "may" in sub-rule (2) confers discretion on him, or does the word "may" in sub-rule (2) really mean shall", or "must"?

There is no doubt that the word "may" generally does-not mean "must" or "shall". But it is well settled that the word "may" is capable of meaning "must or shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive. The whole purpose of rule 4(2) would be frustrated if the word "may" in the said rule receives the same construction as in sub-rule (1). It is because in regard to gazetted Government servants the discretion had already been given to the Governor to refer their cases to the Tribunal that the rulemaking authority wanted to make a special provision in respect of them as distinguished from other Government servants falling under rule 4(1), and rule 4(2) has been prescribed, otherwise rule 4(2) would be wholly redundant. In other words, the plain and unambiguous object of enacting rule 4(2) is to provide an option to the gazetted Government servants to request the Governor that their cases should be tried by a Tribunal and not otherwise. The rule-making authority presumably thought that having regard to the status of the gazetted Government servants, it would be legitimate to give such an option to them. Therefore, we feel no difficulty in accepting the view taken by the High Court that rule 4(2) imposes an obligation on the Governor to grant a request made by the gazetted Government servant that his case should be referred to the Tribunal under the Rules. Such a request was admittedly made by the respondent and has not been granted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposed to be taken by the appellant against, the respondent otherwise than by referring his case to he Tribunal under the Rules." (underlining italics by me).

In my view having regard to the principles laid down in the aforesaid decision of the Supreme Court, the construction placed by the learned counsel for the petitioner on S. 52 of the Act is sound and has got to be accepted.

The learned Advocate General appearing for the Chancellor however submitted that the decision of the Supreme Court in the Sayar Textile Mills, AIR 1977 SC 1516, case was clearly distinguishable. He submitted that the Supreme Court held that the requirement of specification of the period during which the direction issued under clause 20 of the Textile Control order was to remain in force was mandatory, as it was sure to affect the rights of the textile manufacturers and the intention of the rule was also that there should be periodical review of the direction and therefore the provision was considered to be mandatory and such a circumstance is absent in the present provision and therefore the word "may" should not be interpreted as "must" or "shall". I find it difficult to locate any such distinction. If the order passed by the Textile Commissioner under clause 20 of the Textile Control Order was sure to affect the rights of the Textile manufacturers and therefore clause 20 which required the specification of the periods during which the direction should be in force was construed as mandatory, an order of inter-University transfer made under S. 52 of the Act which is a transfer of an extraordinary nature, is sure to affect the conditions of service of the person transferred unless the conditions of service are specified in the order as explained earlier. Just as clause 20(1) of the Textile Control Order required the incorporation of the period during which the direction was to be in force in the direction itself in order to protect the rights of the manufacturers affected by the directions issued under that clause, S. 52 of the Act requires the incorporation of the conditions ofservice to which a transferred employee would be entitled to, in the transfer order itself, in order to protect, the rights of the employees affected by the order of transfer made under the section. Therefore, I do not find any force in the submission made by the learned Advocate General that the principles laid down in Sagar Textile Mills'' case is not applicable to the facts of this case.

Another decision relied on by the learned counsel for the petitioner in support of his submission was the decision, of the Supreme Court in Senior Superintendent, R.M.S. v. K.V. Gopinath, AIR 1972 SC 1487. In that case, the Supreme Court was interpreting the proviso to rule 5(1)(b) of the Central Civil Services (Temporary Service) Rules, 1965. Clause (a) of sub-rule (1) of rule 5 empowered the competent authority to terminate the services of a temporary servant at any time by giving him a notice in writing. Clause (b) thereof required that the period of such notice should be one month. The proviso however added, that the services of any such Government servant may be terminated forthwith by payment to him, a sum equivalent to his one months'' salary. The question for consideration was whether the termination of a temporary Government servant effected, without giving him notice and also without paying him one months salary rendered the order of termination invalid. The Supreme Court held that the power to terminate forthwith without giving one month''s notice was inseparable from the requirement to pay one month''s salary on such termination and therefore, the termination effected without paying the Government servant one month''s salary was invalid. The contention that one month''s salary could be paid subsequently also and the non-payment did not invalidate the order of termination was rejected. Learned counsel for the petitioner maintained that on the same analogy, the non-specification of the conditions of service to which a transferred employee would be entitled to, in the transfer order made under S. 52 of the Act renders it invalid and the submission that the conditions of service could be fixed or laid down later should be rejected.

The learned Advocate General however relied on a later decision of the Supreme Court in Raj Kumar v. Union of India, AIR 1975 SC 1116. In that case also, the Supreme Court was interpreting the proviso to rule 5(1)(b) of the Central Civil Services (Temporary-Service) Rules, 1965, but after the proviso was amended, in order to get over the effect of the judgment of the Supreme Court in Gopinath''s case. Having regard to the wording of the amended rule, the Supreme Court held that the requirement to pay one months''s salary on the termination of the services of a temporary Government servant forthwith, could be complied with subsequently i.e., after effecting the termination. The learned Advocate General submitted that the principles laid down in the later decision in Raj Kumar''s case, are applicable to the interpretation of S. 52 of the Act and therefore, the conditions of service which should be extended to a transferred employee could be decided at any time subsequent to the order of transfer.

In order to appreciate the submissions, it is necessary to set out rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 and the proviso before and after its amendment. It reads:

Before amendment: After amendment:

Termination of Temporary Service: (1)(a) The services of a temporary Government servant who is not in not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government Servant to the appointing or by the appointing authority to the Government Servant.

Termination of Temporary Service: (1)(a) The services of a temporary Government servant who is not in not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government Servant to the appointing or by the appointing authority to the Government Servant.

(b) the period of such notice shall be one month: (b) The period of such notice shall be one month:

Provided that the services of any such Government servant may be terminated forthwith by payment to him of an equivalent to the amount of his pay plus allowances for the

Provided that the services of any such Government servant may be terminated forthwith and on such termination the Government servant period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be, for the period by which such notice falls short of one month."

shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such no ice falls short of one month".

(Underlined (italics) by me indicate the difference)

According to the rule before its amendment, though the rule required the giving of one month''s notice before terminating the services of a temporary Government Servant, the proviso conferred the power to terminate forthwith subject to the payment of month''s pay. The power to terminate the services forthwith and the duty to pay one month''s salary in lieu of a month''s notice were inseparable. But the position after the amendment of the proviso was it permitted the termination of the services of a temporary Government servant forthwith and created a right in the Government servant to get one month''s salary on such termination. In other words the right to claim one month''s salary would accrue to a temporary Government servant only after his services were terminated forthwith i.e., without giving him one month''s notice. When the wording of the proviso stood as it was, the Supreme Court held that the non-payment of one month''s salary invalidated the order of termination itself. But when the wording of the proviso was changed, the Supreme Court held that the right to get one months salary accrued only after the termination of his services and therefore that was not a condition precedent for a valid termination order. The learned Advocate General submitted that the requirement to specify the conditions of service in the order of transfer in S. 52 is similar to the condition imposed in the proviso to rule 5 of the Temporary Service Rules after its amendment and therefore the ratio of the later decision of the Supreme Court in Raj Kumar''s case is relevant to the interpretation of S. 52 of the Act. I find it difficult to appreciate the submission. Just as the proviso to rule 5 of the Temporary Service Rules prior to its amendment permitted the termination of service forthwith by the payment of one month''s salary, Section 52 of the Act empowers the Chancellor to transfer an employee of one university to another University by specifying the conditions of service to which he would be entitled to, in the order of transfer itself. The section does not provide for the specification of the conditions of service after effecting the transfer and therefore the provision cannot be considered similar to the proviso to rule 5 of the Temporary service Rules after its amendment which permitted the termination of service forthwith and directed the payment of one months salary thereafter. Therefore in my view the ratio of the decision in Gopinath''s case, AIR 1972 SC 1487, is apposite to the interpretation of S. 52 of the Act.

The learned Advocate General invited my attention to the principles governing interpretation of statutes laid down in the following decisions of the Supreme Court, namely Board of Muslim Wakfs v. RadhaKishan, AIR 1979 SC 289, Punjab Beverages v. Suresh Chand, AIR 1978 SC 995 and Sharjuddin, v. Abdul Gani Lone, AIR 1980 SC 303 and submitted that the requirement under S. 52 of the Act to specify the conditions of service in the transfer order should be interpreted as directory and therefore non-compliance with that requirement does not invalidate the transfer order. In all these decisions the Supreme Court has laid down the guiding principles for interpretation of statutory provisions as also the criteria for construing a provision as directory or mandatory. These decisions are not in any way helpful for construing S. 52 of the Act as suggested for the respondents. On the other hand we have the decisions of the Supreme Court in Sagar Mills'' case (AIR 1977 SC 1516) and in Jogendra Singh''s case (AIR 1963 SC 1618) referred to earlier which are specific instances of the application of those principles which are the most apposite to the interpretion of S. 52 of the Act.

The learned counsel for the University submitted that S. 52 of the Act should be interpreted in the same manner as Section 320 of the Karnataka Municipalities Act, 1964, had been interpreted by this Court. In particular, he relied on the decision of this Court in A. Shivananda Suvarna v. D.C. Mysore, AIR 1973 Mys. 21. Sub-Section (1) of S. 320 of the Municipalities Act confers power on the State Government to transfer an officer of one Municipality to another municipality. In the aforesaid case, the transferred official contended that without specifying the conditions of service, he could not have been transferred from one municipality to another municipality The said contention was rejected by this Court. The learned counsel submitted, applying the ratio in the above case, the contention urged on behalf of the petitioner in this case also should be rejected.

In my view, the ratio of the above decision is inapplicable for the interpretation of S. 52 of the Act. The only common factor between the provisions of the Municipalities Act and the provisions of the Act is that both these Acts contain a provision empowering the designated authority to transfer an employee of one statutory Corporation to another statutory Corporation. Under the Act, the transfer provided for is from one University to another University. Under the Municipalities Act the transfer provided for is from one Municipality to another municipality. Except this common factor, the other circumstances are different. S. 320 of the Municipalities Act reads as follows:

''320. Power to transfer officers.- (1) Notwithstanding anything contained in this Act, the Government shall have power to transfer any officer or servant of a municipal council to the service of any other municipal council or of any other local authority or of any Government department.

(2) The Government shall have power to issue such special or general directions as it thinks necessary for the purpose of giving due effect to transfers made under sub-section (1) and such directions shall be complied with by the municipal council and any municipal authority concerned."

Sub-section (1) of S. 320 which empowers the Government to transfer an employee of a municipal council to another municipal council does not require the incorporation of the conditions of service in the order of transfer as specifically provided for in S. 52 of the Act. Sub-section (2) of S. 320 independently confers powers on the State Government to issue general or special directions for the purpose of living due effect to the order of transfer and further provides that such direction shall be complied with by the municipal council and any municipal authority concerned. Having regard to the power conferred under sub-section (2) of S. 320, such direction could be issued either generally or specially and it could be issued either before or after the transfer. There is no such corresponding provision in the Act. The most distinguishing feature in the scheme of the Act and the Municipalities Act is the creation of a common authority for regulating the conditions of service of all the municipal employees in the Municipalities Act and the absence of it under the Act. The relevant provision in the Municipalities Act is 323(g). It reads:

Government to make rules.-(1) The Government may by notification and after previous publication make rules for carrying out all or any of the purposes of this Act and prescribe by such rules, forms for any proceeding for which it considers that a form should be prescribed.

(2) In particular and without prejudice to the generality of the foregoing power, rules may be made-

XX XX XX (g) for regulating the recrutment and conditions of service of officers and servants, and determining the conditions under which such officers and servants, or any of them, shall receive pensions, gratuities, or compassionate allowances or retirement, or on their becoming disabled through the execution of their duty, and the amount of such pensions, gratuities, or compassionate allowances; and for prescribing the conditions under which any gratuities or compassionate allowance may be paid to the surviving relations on the death of any such officers or servants;"

Thus it will be seen that though each municipal council is a separate statutory corporation and independent of each other, the power to regulate the recruitment and conditions of service of officers and servants of all the municipal councils in the State, is conferred on a common authority, namely, the State Government. There is no such provision contained in the Act. Having regard to the conferment of such power on the State Government, before framing the rules also it is competent for the State Government to regulate the recruitment and conditions of service of officers and servants of all the municipal councils by issuing executive orders, vide K. Mruthyunjaya v. Town Municipal Council. Shiralakoppa, (1973) 1 Mys.L.J. 470. According to the recruitment rules governing the municipalities, there are common conditions of service, common seniority, whether it is districtwise, divisionwise or statewide, common channel of promotion and in fact every matter relating to the conditions of service of the servants of all the municipalities in the State is governed by the same set of rules made by one common authority. In Gurulingappa v. The State of Karnataka, (1981) 2 Kar. L.J. 282. rejecting the contention urged for the petitioners therein that the transfer from one municipality to another municipality was illegal as it was likely to affect adversly their conditions of service, I held as follows:

"8. The recruitment and conditions of service appointed to various municipal councils in the State are now regulated by a common set of rules. The recruitment which includes the provision relating to promotion is regulated by Karnataka Municipalities (Recruitment of Officer and Servants) Rules, 1971. Under the said rules the posts on the establishment of different municipal councils have been classified at the districtwise, division-wise and State-wide basis. The appointing authority for the posits carrying a pay or maximum pay upto Rs. 500 is vested in the municipal council concerned and in respect of posts the pay or maximum pay of which exceeds Rs. 500 and does not exceed Rs. 900 the power to make appointment is vested in the Deputy Commissioner in the case of Town Municipal Councils and in the Divisional Commissioner in the case of City Municipal Councils and in respect of all other posts the State Government is the appointing authority. Provision for promotion of persons working in different municipalities to higher cadres is also provided for under the recruitment rules. The conditions of service are also regulated by common rules called the Karnataka Municipalities (Conditions of Service of Officers and Servants) Rules, 1972. The provisions of this rule ensure uniform conditions of service to all the municipal servants, and therefore the contention that their conditions of service would be affected by their transfer to another municipality is not correct. If in any individual case, a municipal servant is transferred to a post which carries a lower pay-scale or his condition of service is otherwise affected, such person is entitled to question the legality of the transfer on the ground that by such transfer he is adversely affected. In these cases, the petitioners have not made out that their conditions of service have been affected by their transfer to other municipalities within the district."

In view of these distinguishing features in my view, the interpretation placed on S. 320 of the Municipalities Act is hardly relevant for interpreting S. 52 of the Act which is differently worded and which provides for the transfer of the employees of one University to another not governed by any common Rules governing their conditions of service, and there being no common authority having the power to prescribe the conditions of service.

The fourth and the last contention urged for the petitioner is that a relevant factor, namely, that the petitioner had accepted to be a guide for three students who had registered themselves for Ph.D. course and that under the relevant regulations the petitioner was under a duty to guide them until those students submitted their thesis to the University has not at all been considered by the Chancellor before making the impugned order of transfer. Shri R.N. Narasimha Murthy, appearing for the three interveners who are the three students pursuing the Ph.D. course submitted as follows:

Under the rules of the University, a student undertaking the Ph.D., Course was required to select a teacher of the university qualified to be a guide for doctoral research as his guide. A joint application signed by the student and the guide has got to be submitted to the university. Accordingly, the three students had accepted the petitioner as their guide and had jointly signed the application for registration. Thereafter, the university had registered their names. They had completed three years of research and their research had reached a crucial and final stage. The nature of guideance which they seek from the guide requires frequent dialogue with the guide, and constant, guidance for further research work. By the transfer of the petitioner to Gulbarga, their entire doctoral research stands frustrated. Therefore, the transfer of the petitioner which could be made by the Chancellor only for the administrative convenience of the Universities, could not have been made without taking this relevant factor into account. It appears to me that there is considerable force in the submission, that the fact that some of the students doing doctoral research had accepted the petitioner as their guide and their joint application had been registered by the Bangalore University and by the transfer of the petitioner the research done upto date is likely to become futile, and the students would suffer irreparable injury unless by some device they are enabled to complete their doctoral research under the guidance of the petitioner, was a relevant matter which should have been taken into account. However in view of my acceptance of the third contention, it is unnecessary to decide the fourth contention and accordingly I leave this contention open.

In the result, I make the following order:

(i) Rule made absolute. The impugned order dated 5.5.81 (Annexure-B) is quashed;

(ii) The petitioner shall be continued as Reader in the service of the Bangalore University and shall be treated as on duty with effect from the date of his relief on 7.5.81;

(iii) The respondents shall, however, be at liberty to continue the person who had been transferred in the place of the petitioner, against any other vacancy of Reader, if available in the Bangalore University; and

No costs.