Subhash Chander etc. vs State and Others

T.U. Mehta, J.—The Petitioners herein are the employees of Himachal Pradesh University and have filed this writ petition challenging the seniority list found at Annexures ''C'' and ''M'' as also the promotion of Respondents Nos. 9 and 10 as Superintendents on 5-11-1973 as per Annexure ''F''.

The short question which is involved in the above referred challenges is whether, for the purpose of fixing seniority as between the Petitioners and the Respondents Nos. 9 to 12, the services rendered by the latter in the past with the Government of Himachal Pradesh in the Agriculture Department should be taken into account or not. The short facts forming the back ground between the parties are as under:

The Himachal Pradesh University was established by Section 3 of the Himachal Pradesh University Act (Act No. 17 of 1970), which came into force on 22-7-1970, and which is hereafter referred to as "the Act." Before that, educational institutions in Himachal Pradesh were run by Punjab Agricultural University, Ludhiana, and Punjab University Chandigarh. The Agricultural University Ludhiana was running an Agricultural Complex at Palampur and also some research and extension education centers within this Pradesh. The Punjab University Chandigarh was running a regional centre for post-graduate students, and an Evening College, at Simla. It appears that apart from the above institutions run by the Agricultural University Ludhiana, the Government of Himachal Pradesh was also running through its Department of Agriculture, a college of agriculture at Solan, and other Research and Extension Education Centres at various places in the Pradesh. With the establishment of the Himachal Pradesh University in the year 19(SIC)0, it was decided that all these institutions should be taken over by the newly formed University. Since the institutions which were already in existence had a special emphasis on agriculture, Section 24 of the Act visualises an Agricultural Complex made of different existing agricultural institutions. This Section 24 provides as under:

Agricultural Complex.-There shall be an Agricultural Complex and it shall consist of,-

(a) the Himachal Pradesh Agricultural College, Solan;

(b) the Agaicultural College at Palampur pertaining to the Punjab Agricultural University, Ludhiana;

(c) the Research Stations, Extension Centres, Extension Education Units and any other property of the Punjab Agricultural University, Ludhiana, located in Himachal Pradesh;

(d) the Research Stations and Extension Education Units which may be transferred from time to time by the State Government to the University; and

(e) any other college or institution that may he declared hereafter by the Statutes as part of the Agricultural complex.

This section shows that the Agricultural Complex was to be constituted by the newly formed University taking over different agricultural institutions run by Agricultural University Ludhiana as well as by the Government in the Pradesh area.

So far as the institutions run by the Punjab University Chandigarh were concerned, Section 8 of the Act contemplates how the transfer of their assets, liabilities and employees should be affected. So far as the present petition is concerned, it is not relevant to state on what conditions the employees of these institutions were to be transferred.

In this case we are concerned with the transfer of the services of those who were serving the Agricultural Department of the Government of Himachal Pradesh which was controlling the Agricultural College at Solan, and other Research and Extension Centres at various places. The Act does not make any special provision with regard to the conditions of transfer of employees of agricultural institutions run by the Agricultural University Ludhiana and the Government of Himachal Pradesh in the Agriculture Department. Such a provision is, however, found in statute 38 of the First Statutes framed under Sections 38 and 39 of the Act. This statute 38 is in the following terms:

Conditions of service. (1) Notwithstanding anything contained in the provisions of Section 35 of the Act, every employee of the Agricultural College, Palampur and Research and Extension Education Centres of the Punjab Agricultural University, Ludhiana, transferred to the University vide Section 5(3) of the Haryana and Panjab Agricultural Universities Act No. 16 of 1970 of the Parliament shall on the commencement of this Act, Holding office as such immediately before the commencement of this Act, shall become the employees of the University:

Provided that:

(a) Such employees of the above-mentioned institutions shall be allowed to exercise an option whether or not they wish their services to be taken over by the University;

(b) the existing rights and service conditions of such employees who opt for service in the University shall be protected;

(c) any service rendered by any such employee before such transfer of his service to the University shall be deemed to be service rendered in connection with the administration of the University, on the condition that their leave, pension and provident fund and gratuity contribution in respect of the service rendered by them to the Punjab Agricultural University, Ludhiana shall be reimbursed to the University by the Punjab Agricultural University, Ludhiana.

In the event of any dispute or difficulty in the matter of implementation of the provisions of Sub-clauses (a), (b) and (c) the matter shall be referred to the Central Government whose decision shall be final.

(2) The employees of the Himachal Pradesh Government posted in Himachal Pradesh College of Agriculture, Solan and the Research and Extension Education Centres to be transferred to the University from time to time become the employees of the University on such terms and conditions as may be agreed upon between the State Government and the University:

Provided that such employees of either of the categories mentioned in Sub-clauses (1) and (2) shall be offered an option as to whether they would like to opt for either of the two retirement benefits applicable to the entrants in the service of the University.

From the perusal of this statute 38 it is apparent that it is divided into two parts. The first part is with reference to the transfer of every employee of the Agricultural College, Palampur and Research and Extension Centres of the Punjab Agricultural University, Ludhiana to the newly formed University and provides that the employees of these institutions shall become the employees of the University. The proviso which is attached to Clause (1) of statute 38 mentions the conditions on which the services of the said employees are to be transferred to the University. Clause (2) of this statute refers to the employees of the Himachal Pradesh Government posted in Himachal Pradesh Agricultural College, Solan and other Research and Extension Education Centres under the control of the Agriculture Department. This Clause (2) unlike Clause (1), does not provide for any specific terms and conditions on which the services are required to be transferred to the University, but says that the employees whose services are to be transferred to the University from time to time shall become the employees of the University on "such terms and conditions" as may be agreed upon between the State Government and the University. So far as this writ petition is concerned we are primarily concerned with this Clause (2) of statute 38 because Respondents Nos. 9 to 12, whose se