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Bhudarbhai Hirabhai Patel Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Judge
Reported in(1980)2GLR434
AppellantBhudarbhai Hirabhai Patel
RespondentState of Gujarat and anr.
Cases ReferredKhandige Sham Bhat v. Agricultural Income
Excerpt:
- - 2 university, it was not open to the respondents to bye-pass the claim of the petitioner and persons similarly situated like him to opt for the service of the said university. 1 as well as the impugned provisions of section 52 of the act are not vulnerable to the charge that they violate provisions of articles 14 and 16 of the constitution of india. the petitioner in para 10 of the petition has clearly averred that the petitioner in his individual capacity as well as in his capacity as president of the gujarat agricultural service class ii officers association had made many representations both in writing and orally to the various authorities pointing out the grievances of the officers like him serving in the gujarat agricultural service class ii. he further stated that the state.....s.b. majmudar, j.1. the petitioner is serving as a class ii officer in the gujarat agricultural service class ii. he is an employee of respondent no. 1 state of gujarat and he challenges the action of the 1st respondent state in not offering him option to switch over to the service of gujarat agricultural university established by gujarat act no. 13 of 1960. he also alternatively contends that if the relevant provision of the said act does not permit him to be given such option then in that eventuality the said provision is ultra vires fundamental rights guaranteed under articles 14 & 16 of the constitution of india. in the aforesaid premises a writ of mandamus is sought from this court for directing the respondents who are the state of gujarat and the gujarat agricultural university.....
Judgment:

S.B. Majmudar, J.

1. The petitioner is serving as a class II officer in the Gujarat Agricultural Service class II. He is an employee of respondent No. 1 State of Gujarat and he challenges the action of the 1st respondent State in not offering him option to switch over to the service of Gujarat Agricultural University established by Gujarat Act No. 13 of 1960. He also alternatively contends that if the relevant provision of the said Act does not permit him to be given such option then in that eventuality the said provision is ultra vires fundamental rights guaranteed under Articles 14 & 16 of the Constitution of India. In the aforesaid premises a writ of mandamus is sought from this Court for directing the respondents who are the State of Gujarat and the Gujarat Agricultural University respectively to give the petitioner an option to opt for service in the Gujarat Agricultural University. He has also sought for a declaration that Section 52 of the Gujarat Agricultural University Act, 1969 hereinafter referred to as the Act, is ultra vires Articles 14 and 16 of the Constitution of India.

2. In order to appreciate the controversy posed for our consideration in the present proceedings, it is necessary to have a glimpse of certain relevant facts leading to the present proceeding.

3. The petitioner joined Agricultural Department of the first respondent somewhere in the year 1960. Thereafter he continued to serve in the same Department. In 1966 he was promoted to Gujarat Agricultural Service Class II. The petitioner contends that there are about 300 officers serving in the Gujarat Agricultural Service Class-II. It is the further case of the petitioner that the State Government has constituted the Gujarat Agricultural Service into various cadres known as 'Gujarat Agricultural Service Class I Gujarat Agricultural Service Class-II, Gujarat Agricultural Service Class-Ill etc. The case of the petitioner is that all the employees belonging to Gujarat Agricultural Service Class II are similarly situated and they are transferable to various Institutions run under the control of the Directorate of Agriculture of the first respondent.

4. The Gujarat Legislature in the year 1969, enacted Gujarat Agricultural University Act, 1969, being Act No. 13 of 1969. The said Act provided for the establishment of the Gujarat Agricultural University in the State of Gujarat. The petitioner's case is that the State of Gujarat issued a notification dated 1 st June 1972 transferring certain colleges and research institutions along with their staff to the Agricultural University with effect from 1 st June 1972. The said notification issued by the 1st respondent is at Annex. A to the petition. The petitioner contends that as on that day he was working in the agricultural Department of the 1st respondent and was not actually working in any of the institutions or colleges transferred to the University under Section 51 of the Act, he was not given any option to opt for University service nor was he transferred to the University. The petitioner contends that he belongs to the Gujarat Agricultural Service class II and so did his other colleagues who were actually working in the Institutions and colleges which stood transferred to the University with effect from 1st June 1972. The petitioner says that prior to the issuance of the aforesaid notification, the colleges and research institutions in the State were managed, controlled and conducted by the Agricultural Department of the 1 st respondent State and the persons serving in the Gujarat Agricultural service class II were transferable from the Agriculture Department to the above referred colleges and research institutions. The petitioner himself had worked earlier as Assistant Entomologist (Pink Boll Worm Scheme) in the Research Institute at Junagadh. The said post is that of a Research Officer and the petitioner worked on that post for about two years. He further contends that even prior to this he worked in the same research institute as a demonstrator for about six years. The petitioner states that the post of Assistant Entomologist belongs to Gujarat Agricultural service class II. Thus according to him the persons serving in Gujarat Agricultural Service class II used to be transferred and posted indifferent colleges and research institutes run by the 1st respondent. There used to be inter se transfer of staff working in the Agriculture Department of the 1st respondent and that working in the research institutes or colleges run by the same respondent No. 1. The petitioner's contention is that in the background of the aforesaid facts, as he belongs to Gujarat Agricultural Service Class II, inertly because on 1-6-72 he was not actually working in any of the transferred institutions or colleges, which under Section 51 of the Act, stood transferred to respondent No. 2 university, it was not open to the respondents to bye-pass the claim of the petitioner and persons similarly situated like him to opt for the service of the said university. The petitioner contends that the resolution at Annex. A issued by respondent No. I is null and void and the impugned provisions of the Act are equally violative of his fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India.

5. The respondents have opposed the present proceedings by filing an affidavit in reply. Their defence is that even though the petitioner and other employees belonging to Gujarat Agricultural Service class II may have in the past stood transferred to various colleges and research institutes since they were run by the 1 st respondent at the relevant time, all these personnel of Agricultural Service class II were not entitled to be given options for switching over to the service of Gujarat Agricultural university on 1-6-72; that only certain earmarked colleges, institutions and centres stood transferred to the 2nd respondent university by statutory provisions of the Act. Along with these institutions stood transferred to respondent No. 2, then existing staff of these institutions. As the petitioner was not the staff member of any of these transferred institutions at the relevant time, there was no question of transferring him to the University. Thus the employees of the Gujarat Agricultural Service Class II who were not actual staff members of the transferred institutions, on the relevant date i.e. 1-6-72 formed a separate class as compared to the existing staff of the transferred institutions on that date and which formed another distinct and separate class. Both of them were not comparable and hence there was nothing wrong in not offering any option to the petitioner. Consequently there was no question of any discrimination against the petitioner and other employees of Gujarat Agricultural Service class II who were not existing staff members of those transferred institutions at the relevant time. The respondents therefore contend that there was no question of any discrimination involved in the present case. Consequently, the action of respondent No. 1 as well as the impugned provisions of Section 52 of the Act are not vulnerable to the charge that they violate provisions of Articles 14 and 16 of the Constitution of India.

6. So far as the second respondent University is concerned, Mr. J.R. Nanavati, learned Advocate appearing for the respondents, has raised an additional contention to the effect that the present petition is barred by delay and latches. It is contended in this behalf that the impugned resolution is dated 1-6-1972. The case of the petitioner is that be should have been given an option at that time of the switching over to the service of 2nd respondent. The petitioner has waited for all these years and has filed the present petition as late as in January 1978 at least about 5 1/2 years after the issuance of the resolution at Annex. A. Mr. Nanavati, therefore, contends that the petition deserves to be dismissed on the ground of gross delay and latches.

7. In view of the aforesaid rival contention of the parties, the preliminary point that arises for our consideration is:

(1) Whether the petition suffers from gross delay and latches. If yes, whether the petitioner has disentitled himself to any reliefs as prayed for?

8. On merits, Mr. Vakharia, learned Advocate appearing for the petitioner has raised the following contentions:

(1) Under the provisions of Section 52 of the Act, the petitioner was entitled to be considered for being drafted to the service of the 2nd respondent. The 1st respondent has misconstrued and misinterpreted the said provision in not offering an option to the petitioner to that effect and hence the action of the 1st respondent was contrary to the provisions of the Act.

(2) In the alternative, it was contended by Mr. Vakharia that if it is held that Section 52(1) of the Act does not cover the petitioner's case, then in that eventuality, the said provision is violative of the petitioner's fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. It is highly discriminatory and it is liable to be declared null and void.

9. So far as the preliminary contention raised by Mr. Nanavati is concerned it is true that the impugned resolution is dated 1-6-1972. It is equally true that Section 52 of the Act came into force from that date. The question whether the employees working in the Gujarat Agricultural Service class II were entitled to be offered an option to switch over to the 2nd respondent's service arose in these days and the petitioner has filed the petition years thereafter. Bat the question is whether the said delay is of such a type which would disentitle the petitioner from raising Constitutional contentions based on fundamental rights by way of the present petition. The petitioner in para 10 of the petition has clearly averred that the petitioner in his individual capacity as well as in his capacity as President of the Gujarat Agricultural Service class II officers Association had made many representations both in writing and orally to the various authorities pointing out the grievances of the officers like him serving in the Gujarat Agricultural Service Class II. He further stated that the State Government had no occasion to consider and has yet not rejected these representations and at one time even the State Government had proposed an amendment to the Act in order to redress the grievances of the petitioner and the officers like him. It is further averred that long time has been taken by the Government in taking any final decision in the matter and if there is more delay it may create more complications. It ii thereafter that the petitioner was constrained to file the present petition. It is pertinent to note that the first respondent State has not taken any objection in its affidavit-in reply on the ground of delay or latches. It is further pertinent to note that the petitioner in para 4 of his affidavit in rejoinder has met the preliminary objection raised by respondent No. 2 in its affidavit in reply. The petitioner contended that he had submitted many oral and written representations to the first respondent but the first respondent has not taken any care to consider the representations though they were more sympathetic. The petitioner had been given to understand that the respondents would amend the Act. The petitioner stated that the communication dated 28th June 1976 from the Director of Agriculture specifically stated that the Government was prepared to find some way out so that those desirous of serving the University could do so. The said communication has been annexed to the affidavit in rejoinder at Annexure C. Thereby the petitioner was given to understand that some way would be found out and therefore the petitioner did not approach the Court earlier. It is interesting to note that no challenge has been made to the averments of the petitioner in para 4 of the rejoinder. In view of the aforesaid state of pleadings, it appears clear that this is not one of those cases where the petition would be liable to be dismissed on the ground of delay and latches. Once the petitioner has made categorical averments that the 1 st respondent has not taken any final decision on representations and when this averment is not denied by the 1 st respondent it cannot be said that the petition suffers from gross delay and latches. It is also to be kept in view that the petitioner has challenged the action of the respondents as being violative of his fundamental rights under Articles 14 and 16 of the Constitution. He has also challenged the vires of Section 52 of the Act. Once this grievance is voiced by the petitioner it is not possible to uphold the preliminary contention raised by Mr. Nanavati that the petition is liable to be dismissed in limine on the ground of delay and latches.

10. That takes us to the consideration of the contentions raised by Mr. Vakharia on the merits of the petition. Mr. Vakharia's first contention is that under Section 52 of the Act, the petitioner ought to have been given an option to switch over to the service of the 2nd respondent. In so far as the respondents have not given this opportunity to the petitioner, the impugned resolution at Annex. A is contrary to the aforesaid provision. In order to appreciate the aforesaid contention of Mr. Vakharia it is necessary to have a look at Section 52 of Act which reads as under:

52. Notwithstanding anything contained in Section 51, such of the existing staff serving in any of the colleges or institutions transferred or liable to be transferred to the University under Section 51 or such other staff connected therewith, as the State Government may, from time to time having regard to the necessity therefore, direct, shall be taken over and employed by the University, and every person so taken over and employed shall be subject to the provisions of this Act and the statutes and regulations made thereunder: Provided that:

(a) during that period of such employment all matters relating to the pay, leave, retirement, allowance, pension, provident fund and other conditions of service of the members of such staff shall be regulated by the Bombay Civil Service Rules, 1959, or such other rules, as may from time to time be made by the State Government.

(b) any such member shall have a right of appeal to the State Government against any order of reduction dismissal or removal from service or any other punishment.

(2) Subject to the provisions of Sub-sections (3) and (4) all permanent servants of the said staff taken over and employed by the University under Sub-section (1) shall have a lien on their posts in the service of the State Government and the period of their service under the University shall if they choose to revert to the service of the State Government counted for their increments, pensions and other matters' relating to their service.

(3) Notwithstanding anything contained in Sub-section (1), eviry officer or servant of the State Government taken over by the University shall, within the period of two years from the date he is so taken over (or such further time, if any, as the State Government may decide), give notice in writing to the State Government:

(a) that he should be permitted to retire and thereupon he shall be permitted to retire from Government service and shall be entitled to such terminal benefits as compensation, pension or gratuity, or the like, as may be prescribed by the State Government or

(b) that he should be permenently absorbed in the service of the University and thereupon the University shall absorb him permenently in its service and any service rendered by him under the State Government shall be deemed to be service under the University, and he shall be entitled to receive from the University such terms and conditions of service as respects remuneration, leave and pension and such rights as respects disciplinary matters or rights similar thereto as changed circumstances may permit as are not less favourable than those to which that person was entitled immediately before he was taken over by the University, or

(c) that he should be permitted to revert to Government service and thereupon he shall be permitted to revert to the service on the same terms and conditions of service applicable to him immediately before he was taken over by the University.

4. If any officer or servant of the State Government fails to give notice under Sub-section (3) within the time referred to therein, he shall be deemed to have opted to be permanently absorbed in the service of the University under Clause (b) of Sub-section (3).

5. Notwithstanding anything contained in this section, in the case of any officer or servant of the State Government taken over by the University, if in the opinion of the University such officer or servant is not suitable or is surplus to its requirements, the University may move the State Government within a period of two years from the date he was so taken over to repatriate the said officer or servant to the service of the Government.

Upon such request by the University the State Government shall take back the said officer in its service.

The aforesaid section shows that the State Government was required to direct transfer to such staff of colleges and institutions liable to be transferred to the University under Section 51 as may be serving in the concerned colleges or institutions at the time when the Act came into force. So far as Section 51 is concerned, it reads as under:

51-(1) Notwithstanding anything contained in any other Act relating to the establishment of a University in the State or in the Statutes, Ordinances, regulations, rules and orders made thereunder, the colleges specified in the Scheduled appended to this Act shall as from the date as the State Government may by notification in the official Gazette, specify, (hereinafter in this section referred to as 'the specified date') be disaffiliated from the Universities to which they may have been affiliated on the day immediately preceding such date and shall be transferred to and be maintained by the University as its constituent colleges.

(2) The control and management of the, colleges specified in Sub-section (1) shall be from the specified date stand transferred to the University and all properties and assets and liabilities of the State Government in relation thereto shall stand transferred to, and vest in, or devolve upon, the University.

(3) Where before the specified date, the State Government has made any contract n relation to any of the said colleges, that contract shall be deemed to have been made by the University, and any reference therein to the State Government shall be construed as a reference to the University.

(4) Notwithstanding anything contained in this Act or the Statutes and regulations made thereunder, any student of a college specified in Sub-section (1) who immediately before the specified date, was studying in any such college or was eligible for any examination of the University to which his college was affiliated before the date as aforesaid (hereinafter referred to as the concerned University) shall be permitted to complete his course in preparation therefore, and the University shall make arrangements for the instruction, teaching, training and holding for such students examinations for such period and in such manner as may be prescribed in accordance with the curricula of studies of the concerned University.

(5) The control and management of all research and educational institutions of the Department of Agriculture, the Department of Animal Husbandry, the Fisheries Department and of such other Departments State Government as the State Government may, by notification in the official Gazette specify in this behalf shall, from such date as the State Government may by order specify, be transferred to the University; and thereupon all properties and assets and liabilities of the State Government in relation to such institutions shall stand transferred to, vest in, or devolve upon the University.

(6) Notwithstanding anything contained in Sub-sections (1), (2) and (5), the Agricultural College, Junagadh, and all research and educational institutions in Junagadh District which were under the control and management of any of the Departments referred to in Sub-section (5) immediately before date specified under Sub-section (1) or as the case may be, Sub-section (5), shall not, save with the previous sanction of the State Government, be discontinued by the University nor shall the educational research or extension activities conducted in or by the said college or institutions immediately before the said date be stopped or reduced in scope or extent or transferred outside the said district, save with the like sanction.

(7) Notwithstanding anything contained in any other Act relating to the establishment of any University in the State, no such University shall as from the specified date be competent to award any degrees, diplomas, certificates or other academic distinctions in agriculture and the Faculties of Agriculture Dairy Service and Veterinary science thereof by whatever name called shall cease to function.

A combined reading of Section 52 and Section 51(1) shows that certain specified colleges mentioned in the Schedule appended thereto were to be disaffiliated from the Universities, to which they had been affiliated prior to the specifical date and were to stand transferred to and to be maintained by the 2nd respondent University. In Sub-section (5) of Section 51, the control and management of all such research institutions of the Department of Agriculture, the Department of Animal Husbandry the Fisheries Department, and of such other Departments of State Government, as the State Government may by notification in the official Gazette specify in that behalf, shall from such date as the State Government may by order specify, be transferred to the University. Thus, the institutions and colleges mentioned in Section 51 were referred to in Section 52(1) for the purpose of absorption of staff of these institutions by the 2nd respondent university on the coming into operation of the Act. Schedule to the said Act mentioned five colleges which stood transferred to the 2nd respondent university under Section 51(1) of the Act and their names were as under:

1. The Agricultural College, Junagadh.

2. Shri Navinchandra Mafatlal College of Agriculture, Navpari.

3. The Bansilal Amratlal College of Agriculture, Anand.

4. The Dairy Science College, Anand.

5. The Gujarat College of Veterinary Science and Animal Husbandry, Anand.

It is an admitted fact between the parties that the petitioner was not a staff member serving in any of the aforesaid colleges or institutions which are mentioned in Section 51 at the relevant time when the Act came into force i.e. 1-6-72. But Mr. Vakharia's contention is that Section 52(1) not only takes care of the existing staff serving in any of the colleges or institutions transferred or liable to be transferred to the 2nd respondent university, but it also mentions such other staff connected therewith. It is submitted by Mr. Vakharia in this connection that the phrase 'such other staff connected therewith' takes in its sweep persons like the petitioner who were liable to be transferred to the colleges and institutions but who were not actually so transferred to these colleges and institutions on the relevant date and who were actually not working on the appointed day in those colleges and institutions. That they formed a part and parcel of the staff connected therewith, viz. the transferred college and institutions and consequently the petitioner ought to have been permitted by respondent No. 1 to be transferred to the 2nd respondent.

11. It is difficult to accept the aforesaid contention of Mr. Vakharia. In Section 52(1), the words, 'such other staff connected therewith' are so placed that they take colour from the preceding clauses employed in the said section. The words, 'existing staff serving in any of the colleges or institutions transferred or liable to be transferred to the University' clearly indicate that the legislature contemplated transfer of the existing staff, meaning those who were actually working in the colleges and institutions transferred to the 2nd respondent university along with the colleges and institutions themselves. The phrase 'such other staff connected therewith' would take in its sweep all other employees who might not be actually employed as existing staff in the said colleges and institutions but who might have been employed on the appointed date by the 1st respondent in connection with these colleges and institutions and even though they might be working somewhere else, they must be working on the appointed date in connection with these institutions or colleges. In short, they must be discharging duties in connection with such colleges and institution on the appointed date. If such a link is established between the concerned staff and the nature of their duties, then only they can be covered by the sweep of Section 52(1) and not otherwise. It is not the case of the petitioner that at the relevant time he was working in connection with these transferred colleges or institutions. Consequently, he cannot take advantage of the phrase, 'such other staff connected therewith' employed in Section 52(1) nor can it be urged with any emphasis that the 1st respondent was bound to direct the transfer of the petitioner to the 2nd respondent and the 2nd respondent University was bound to take him over as its employee. On the plain construction of Section 52(1) it is not possible to accede to the aforesaid contention of Mr. Vakharia. As the section stands, the petitioner could not have been directed to be transferred to the 2nd respondent by the 1st respondent. The first contention of Mr. Vakharia is, therefore, devoid of any merit and is rejected.

12. That takes us to the consideration of the second contention of Mr. Vakharia. That pertains to the vires of Section 52(1) of the Act. We have already reproduced above Section 52(1) in its entirety. In order to appreciate the contention of Mr. Vakharia on this aspect it is necessary to have a look at certain relevant provisions of the Act, Its preamble shows that it was meant to establish and incorporate a University for the development or agriculture including animal husbandry and allied sciences in the State of Gujarat. The said scheme came into force on 2nd October 1969. Section 3 of the said Act lays down that there shall be established and constituted in and for the State of Gujarat, a University by the name of the Gujarat Agricultural University which shall consist of a Chancellor, a Vice-chancellor, a Board of Management, an Academic Council, other authorities and officers as set forth in this Act. Section 4 of the said Act provides for the territorial jurisdiction of the 2nd respondent constituted under the Act. Sub-section (3) of Section 4 provides that all colleges, research and experimental stations or other institutions coming under the jurisdiction and authority of the University shall come as constituent units of the University under the full management and control of the University officers and authorities. No unit shall be recognised as an affiliated unit. Thus this university was not to be an affiliating university. It itself had to run all colleges and institutions. All of them were to be under the direct control of the University. Section 5 provides for various objects for which the university was deemed to be established and incorporated. Section 33(3) provides that jurisdiction over research programmes, facilities personnel and budgets, assigned to the Director of Agriculture and Animal Husbandry, State of Gujarat and to such other agencies of the State Government concerned with research of agriculture shall be transferred to the University according to such plans and on such date as may be mutually agreed upon by the Board and the State Government. Thus it appears that the 2nd respondent was made a full-fledged university for the purpose of agricultural education and research and all such institutions and colleges till then managed and run by the 1st respondent, State of Gujarat stood transferred to the said university along with their research projects and schemes. Then follow the relevant two sections of the Act, 51 and 52 which we have produced in extenso in the earlier part of our judgment. Section 51 in terms provides for the transfer of certain colleges and institutions. Once these institutions and colleges which were till then managed and run by the 1st respondent stood statutorily transferred to the 2nd respondent University the management and control of such colleges and institutions statutorily vested in the 2nd respondent. Thus, the colleges which stood statutorily transferred to the 2nd respondent under the provisions of Section 51 of the Act became constituent colleges of the 2nd respondent as provided by Section 51(1). Section 52(1) provides that notwithstanding anything contained in Section 51, such of the existing staff serving in any of the colleges or institutions transferred or liable to be transferred to the University under Section 51, or such other staff connected therewith, as the State Government may from time to time having regard to the necessity therefore, direct, shall be taken over and employed by the University, and every person so taken over and employed shall be subject to the provisions of the Act and the statutes and regulations made thereunder. Section 52(1) contemplates taking over and transfer to the University of such of the existing staff serving in any of the colleges which became constituent colleges of 2nd respondent University under Section 51(1), and also such of the existing staff of all research end educational institutions of Department of Agriculture as mentioned in Section 51(5), as the State Government may from time to time having regard to the necessity thereof direct. Thus, all the existing staff of these colleges and institutions as the State Government may direct has to be taken over by the University, 2nd respondent. Mr. Vakharia for the petitioner contends that Section 52(1) is violative of the petitioner's fundamental rights guaranteed under Articles 14 and 16 of the Constitution inasmuch as the petitioner and other persons similarly situated like him were all numbers of the Gujarat Agricultural Service Class II when Section 52(1) was made operative from 1-6-72. That all these employees of the 1st respondent who were actually working in agricultural colleges and institutions run by Department of Agriculture of the 1st respondent at the relevant time were as much members of Gujarat Agricultural Service class II is the petitioner and others who were at the relevant time on account of the exigencies of service working in Agriculture department itself and not in these colleges and institutions, even though they could have been transferred to these colleges and institutions and were in fact so transferred in the past. Thus all the servants of the 1st respondent who were members of the Gujarat Agricultural Service class II formed one class. By exigencies of service some of the members of that class were working in Agriculture Department at the relevant time while others were actually working in certain colleges and institutions run by the 1st respondent. When the question arose for transferring staff members of various colleges and institutions to the 2nd respondent, uniform treatment ought to have been given to all the employees of the Agriculture Department of the 1st respondent, as all of them belonged to Gujarat Agricultural Service class II as did their counterpart who were already serving in these colleges and institutions at the relevant time especially when all the incumbents of these posts were transferable inter se, Mr. Vakharia in this connection relied upon the common seniority list published by 1st respondent and annexed at Annexure B to the petition. Mr. Vakharia submitted that this common seniority list shows that the petitioner and others who were actually members of the Gujarat Agricultural Service class II but who were not staff members of these colleges and institutions have also been shown in the same seniority list along with those who were working in colleges and institutions. On the basis of this common seniority list it was submitted by Mr. Vakharia that all the State Government servants working in Gujarat Agricultural Service class II formed one class or category. Section 52(1) tried to carve out, therefore, a sub-classification or category and to give it a better treatment as compared to the main category comprised of 'all those in Gujarat Agricultural Service class II who were at the relevant date not serving in the concerned colleges or institutions even though this was due to exigencies of service. Consequently according to Mr. Vakharia hostile treatment is meted out by Section 52(1) by creating an artificial sub-classification from amongst similarly situated servants working in Gujarat Agricultural Service class II at the relevant time and hence the said section is violative of the fundamental rights of the petitioner guaranteed under Articles 14 and 16 of the Constitution of India. The aforesaid contention of Mr. Vakharia has been tried to be combated by the respondent. The contention of the 1st respondent in the affidavit in reply is that persons not working under the schemes transferred to the University were not required to be transferred to the university. The petitioner was working under the scheme which was not transferred to the university and hence, was not entitled to get posting to the post under the control of the university. So far as the seniority list at Annex. B which has been relied upon by the petitioner is concerned, it is submitted by the 1st respondent that the seniority list of the officers serving in Gujarat Agricultural Service class II shows the position as on 1-1-72 and was published by the State Government in the year 1977. In that connection it is further averred that the officers who were transferred and absorbed by the university from 1-6-72 were working in the Department of Agriculture on 1-1-72 and hence it was quite necessary to show their names in the aforesaid seniority list. This does not mean that the officers who remained with the Agriculture Department and the officers who were transferred to the university formed the same class or cadre after 1-6-72. In short the submission on behalf of the 1st respondent was that the petitioner and others who were not working under the schemes or colleges or in the institution s transferred to the university on 1-6-72 formed a separate category and class and could not be compared with other officers who were actually staff members of the transferred colleges and institutions and they formed a distinct class and cadre. In order to appreciate these rival contentions of the parties, it is necessary to keep in view certain salient features the Act. We have already referred to the relevant provisions of the said Act. The said provisions show that when a need was felt to have a separate Agricultural University in Gujarat State, the 2nd respondent came to be established by the said Act. As the University had to made provisions for imparting education in and had to undertake research in agriculture and allied sciences and humanities as provided by Section 5 of the Act, the 2nd respondent university had to run agricultural colleges and institutions and research schemes. By the time that university came to be established, the 1st respondent was already running certain agricultural colleges and institutions. They naturally stood transferred to the university. Consequently those colleges were disaffiliated from the universities to which they might have been affiliated earlier and were handed over to the 2nd respondent as constituent colleges. It is, therefore, obvious that the existing staff members who were manning these transferred colleges and institutions at the relevant time bad to be provided for and with that end in view Section 52(1) was enacted. Section 52(1) does make a classification but it appears to us to be quite a reasonable classification. The contention of the respondents is that the said classification is reasonable one when seen in the light of the aforesaid provisions of the Act. We agree with this contention. When Section 52(1) is read in the light of Section 51(1) no doubt is left in our mind that Section 52(1) seeks to make a reasonable classification of certain employees of the 1st respondent State who were actually working in the concerned colleges and institutions which were transferred or liable to be transferred to the university or who were comprising of other staff connected with these transferred colleges or institutions. These employees or the staff members who were actually manning these institutions and colleges on the appointed date had to be provided for as the very institutions where they were serving were being transferred to the 2nd respondent university for being within its control and management. From that date these colleges and institutions ceased to be Government colleges and institutions. It must, therefore, logically follow that the employees manning these institutions and colleges on the appointed date also ceased to be State servants and were transferred to the university service from that date. Consequently a statutory provision was required to be made about transfer of these employees to avert a hiatus. To begin with the State Government was given a right to direct which of the employees from the existing staff of the colleges and institutions transferred to respondent No. 2 should be taken over by the University. Once the State Government took the decision, university had no option but to employ the transferred staff by giving them an option to decide within two years as provided in Section 52(3) as to whether they would like to remain as university employees or would like to go back to the State Government where their liens were kept. Thus, Section 52(1) was meant to cater to the needs of only those staff members who were serving in the colleges and institutions which were transferred to the university under Section 51(1). Section 52(1) has to be read in the light of Section 51. There is a clear connection between these two sections. Both are to be read together. They represent a well-knit scheme. They are inextricably intertwined. Any attempt to either enlarge or to whittle down the scope of Section 52(1) will inevitably result in making the scheme of statutory transfer of institutions and colleges as envisaged by Section 50 totally unworkable. Section 52(1) is in fact a corollary to Section 51. It is a service provision for the full operation of Section 51. It is pertinent to note that the petitioner has not challenged Section 51. Once the said provision operates, sec, 52 (1) is pressed in service only in aid of the working of Section 51. But for it Section 51 would be deprived of its true content and efficacy and would be rendered otiose. Seen in this light it is clear that Section 52(1) earmarks a well defined class of employees who may be belonging to State Government service prior to the coming into operation of the Act and who may also be working along with the petitioner in Gujarat Agricultural Service class II. The rationale behind this classification lies in the need to provide for easy transmission of the existing staff of institutions and colleges or schemes transferred to the 2nd respondent university by virtue of Section 5J. They could not be transferred without the staff manning them. There cannot be any effective transfer of colleges or other research centres without the persons manning them. The existing staff was a part and parcel of these colleges and institutions and had to go with them. Consequently, provisions had to be made regarding the transfer of these staff members. If Mr. Vakharia's contention is accepted the harmony between Sections 52(1) and Section 51 would be completely destroyed. Any State Government servant who may be in Gujarat Agricultural Service class II in agricultural department of the State would be entitled to be taken over and employed by the University. That would create a dichotomy between the operations of Sections 52(1) and 51. Section 52(1) has to operate in the same field which is earmarked by Section 51. It must be held that it carves out a clearcut classification in the light of the parent provision, namely Section 51. This classification appears to be quite reasonable and has nexus with the object sought to be achieved. The object is to provide for smooth running of the colleges and institutions transferred to the university under Section 51 so that the 2nd respondent can effectively discharge its statutory functions as enjoined by Section 5. In order that the 2nd respondent can discharge its various functions the colleges and institutions transferred to it had to bring with them the existing staff which they were maintaining and which would be a trained staff well versed in existing duties and functions and having a live link with the tasks underlying agricultural education and research. Of-course the State Government was left with the right to select out of the existing staff of these colleges and institutions and to decide the extent to which it was necessary to transfer such staff to respondent No. 2. But the Legislature has clearly effected the classification of employees and from that class only the State has to direct the transfers to respondent No. 2 as provided by Section 52(1). It cannot be said that classification is in any way unreasonable. On the contrary, if this classification were not there, the entire working of the Act would have been jeopardised. Classification of the existing staff of transferred colleges and institutions as a separate class ensured the efficiency of the personnel who had to work in the transferred colleges and institutions after the appointed date. If Mr. Vakharia's contention is accepted any State Government servant who may have never worked in any such college or institution any time and who had no experience of teaching or research would be entitled to be transferred to the service of respondent No. 2 university only on the basis that he also belongs to Gujarat Agricultural Service class II. This would really frustrate the very object of the Act. As the university had to take over these colleges and institutions and schemes which till then were being run by the 1st respondent, the university was required to be supplied with efficient and experienced staff which was already with these colleges and institutions. Those Government employees who might have once upon a time staff members of these colleges and institutions and had ceased to be such staff members of these colleges and institutions before the relevant date could not insist that they should be included in or treated at par with the category of the existing staff serving in the transferred colleges and the institutions on that date. The whole working of the Act would be frustrated if such a contention was accepted The live link between such staff and colleges and institutions where they once worked was already snapped before the relevant date as they were transferred from these institutions earlier. They naturally went out of touch with the academics of agricultural education and research. They could stand no comparison with those who were in active touch with these colleges and institutions. Hence we find that the classification which is effected by Section 52(1) amongst the employees in Gujarat Agricultural Service class II is a reasonable one. It is pertinent to note that as per Section 52(1) all the employees who once worked in the institutions which stood transferred to the 2nd respondent could not insist that they should also be treated equally with their successors who were actual incumbents of their posts. The nexus of persons like the petitioner with these posts came to be snapped by the passage of time. They had ceased to be such incumbents at the relevant time when the Act came into force. Once the Act had to operate from a given point of time, classification had to be made with reference to that point of time so as to make the working of the entire scheme of the Act fully effective. In that view of the matter, it cannot be held that classification tried to be made out by Section 52(1), is in any arbitrary as Mr. Vakharia wants us hold. In order to support his second submission Mr. Vakharia placed reliance on certain judgments of the Supreme Court. Mr. Vakharia first invited our attention to the judgment of the Supreme Court in Mahommad Shujat AH v. Union of India : (1976)IILLJ115SC . In this judgment the Supreme Court was concerned with the constitutional validity of certain rules framed by the Andhra Pradesh Government by which equivalence of educational qualifications was made the relevant intenion for the purpose of effecting promotion in the Engineering service of Andhra Pradesh Government. These impugned rules were held to be intra vires Articles 14 and 16 of the Constitution, by the Supreme Court. In para 12 of the said judgment it was pointed out that the question in regard to equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications and where the decision of the Government is based on the recommendations of an expert body which possessed the requisite knowledge, skill and expertise for adequately discharging such a function, the Court, uniformed of relevant data and unaided by the technical insight necessary for the purpose of determining equivalence would not lightly disturb the decision of the Government. While dealing with the words 'similarly situated for the purpose of deciding constitutional challenge under Article 14, the Supreme Court in para 25 observed as under:

But the question is: what does this ambiguous and crucial phrase 'similarly situated' mean? Where are we to look for the test of similarly of situation which determines the reasonableness of classification? The inescapable answer is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons or things similarly situated with respect to the purpose of the law. There should be no discrimination between one person and thing or another if as regards the subject matter of the legislation their position is substantially the same. This is sometimes epigrammatically described by saying that what the constitutional code of equality and equal opportunity requires is that among equals, the law should be equal and that like should be treated alike. But the basic principle underlying the doctrine is that the legislature should have the right to classify and impose special burdens upon or grant special benefits to persons or things grouped together under the classification, so long as the classification is of persons or things similarly situated with respect to the purpose of the legislation, so that all persons or things similarly situated are treated alike by law. The test which has been evolved for this purpose is and this test has been consistently applied by this Court in all decided cases since the commencement of the Constitution that the classification must be founded on an intelligible differentia which distinguishes certain persons or things that are grouped together from others and that differentia must have a rational relation to the object sought to be achieved by the legislation.

Mr. Vakharia also drew our attention to another judgment of the Supreme Court in State of Mysore v. Krishna Murthy : (1973)ILLJ42SC . The said judgment of the Supreme Court was concerned with the question of differences of promotional chances between the two wings of the same service. The petitioners before the High Court in that case had joined the Accounts service in the comptroller's officer of the former Mysore State as first and second Division clerks. The petitioners worked as Accounts clerks under the Chief Engineer, P.W.D. from 31-10-1955. A Divisional Accounts cadre in the scale of Rs. 130-355 was created by the Mysore Government under the administrative control of the Chief Engineer. Both the petitioners passed the prescribed examinations and were absorbed in the Divisional Accounts' cadre. The Reorganisation Committee had recommended the transfer of the P.W.D. Accounts Branch in toto to the newly set up i Controller of State Accounts. Consequently the petitioners came under the administrative control of the Controller and the designation of their office was changed to that of 'Accounts Superintendent.' On 15th May 1959 the two formerly separate units of the Accounts service, namely the P.W.D. Accounts unit, under the Chief Engineer P.W.D. and the local Fund Audit unit, known also as 'the State Accounts Department' came under the common administrative control of the Controller of State Accounts. The petitioners 'became absorbed in a single permanent service regulated by uniform rules. The contention of the petitioners in that case was that in the matter of promotion they were discriminated against simply because they had worked in the P.W.D. Account unit. The Mysore High Court accepted the said contention of the petitioners. The State of Mysore thereafter preferred an appeal to the Supreme Court which came to be decided in the aforesaid case. While considering the question of discrimination in the light of Articles 14 and 16 of the Constitution, the Supreme Court observed that in the case of Government servants, the object of such a difference must be presumed to be the selection of the most competent from amongst those possessing qualifications and backgrounds entitling them to be considered as members of one class. In some cases quotas may have to be fixed between what are different classes or sources for promotion on grounds of public policy. If, on the facts of a particular case, the classes, to be considered are really different, inequality of opportunity in promotional chances may be justifiable. On the contrary if the facts of a particular case disclose no such rational distinction between members of what is found to be really a single class no class distinctions can be made in selecting the best. The Articles 14 and 16 of the Constitution were violated when some members of one class were considered for promotion. In the letter type of cases the difference in promotional opportunities of those who were wrongly divided into two classes for this purpose only could not be justified on any rational grounds. Placing reliance on the aforesaid observations of the Supreme Court Mr. Vakharia submitted that in the present case the petitioner and others were not considered for being transferred to the 2nd respondent university. It is difficult to appreciate how the aforesaid observations of the Supreme Court in the context of the question regarding the promotional avenues being available to all the employees of one class can be pressed in service by Mr. Vakharia in the present case. It is necessary to note that in the present case the legislature itself has marked out a separate class out of employees working in the Gujarat Agricultural Service class II to comprise of those who were at the relevant time working as staff members of the concerned transferred colleges which came to be assigned to the 2nd respondent university by the statutory provision of Section 51. Section 51 operates on its own and is not under challenge. Once Section 51 holds the field validly, Section 52(1) has got to fall in line. Consequently in the light of Section 51, Section 52(1) carves out a well defined class of employees actually serving in the concerned institutions even though belonging to Gujarat Agricultural Service class II. As we have shown above this classification is based on an intelligent differentia having a clear nexus with the object sought to be achieved thereby. As stated above the object is to ensure for the transferred colleges and institutions experienced staff well-versed in the field of agricultural education and research and in day-to-day touch with the same. It cannot be said that the said classification was unjustified or unreasonable in any manner. On the contrary, any attempt at disturbing that classification would result in dislocation of the working of the entire scheme of the Act and Section 51(1) would be rendered completely unworkable. In fact, to accept the submission of Mr. Vakharia would lead us to practically re-write Section 51(1) which is not within our power. Consequently, the aforesaid decision of the Supreme Court cannot be of any real assistance to him. Lastly, Mr. Vakharia invited our attention to the judgment of the Supreme Court in S.M. Pandit v. State of Gujarat : [1978]2SCR193 . In this case the question was whether vis-a-vis directly recruited Mamlatdars the promotee Mamlatdars could be discriminated against for the purpose of future promotion to the post of a Deputy Collector once all these Mamlatdars had formed only one integrated class of Mamlatdars discharging the same functions and holding similar posts and having the same designation. Confirming the judgment of the High Court the Supreme Court took the view that the directly recruited Mamlatdars and the promotee Mamlatdars formed one class of Mamlatdars, the source through which they entered the cadre of Mamlatdar was not relevant for deciding the question of their further promotions as Deputy Collectors. The well-made out features of that case were highlighted by the Supreme Court in the aforesaid decision for holding that the promotee Mamlatdars and directly recruited Mamlatdars formed only one well-limit single class of Mamlatdars as they were having the same designation and discharging the same functions and their posts were interchangeable. In that view of the matter the Supreme Court upheld the view of the High Court to the effect that none of these two groups of Mamlatdars after merging into one cadre of Mamlatdars could be discriminated against while deciding their promotions to the posts of Deputy Collectors. This judgment of the Supreme Court cannot be of any real assistance to Mr. Vakharia. Once we come to the conclusion in the light of the entire scheme of the Act and especially in the light of Section 51 which provided that certain colleges and institutions had to be transferred to the university for being conducted by the university that the employees working in these institutions at the relevant time formed a separate and distinct class for which special provision was required to be made under Section 52, no question of discrimination survives at all. Section 52(1) shows that those employees working in the Gujarat Agricultural Service class II who had nothing to do with the colleges and institutions which were transferred to respondent No. 2 under Section 51 formed a distinct and separate class and could not have anything in common with their counterpart employees who were actually the existing staff of these institutions on the appointed date. Consequently, they could not effectively complain about any alleged discrimination against them when the legislature has made no provision for giving them any option to be transferred to the university service under the scheme of the Act. We therefore, find that the second contention of Mr. Vakharia that Section 52(1) is violative of the fundamental rights of the petitioner guaranteed under Articles 14 and 16 of the Constitution is without any substance. It is now too late in the day to contest the proposition that the legislature can validly classify different categories of situation with regard to any given point of time. In the case of Jain Brothers v. Union of India : [1970]77ITR107(SC) , the Supreme Court had to consider the constitutional validity Section 29 (2) of the Income-tax Act, 1961 wherein the section was to operate with reference to a given point of time and tried to classify the situation prevailing there into a separate class. In that case the Supreme Court has made the following pertinent observations:

It is for the legislature to decide from which date a particular law should come into operation. There is no reason why pending proceeding cannot be treated by the legislature as a class for the purpose of Article 14. The date, first April 1962 which has been selected by the legislature for the purposes of Clauses (f) and (g) of Section 29 (2) cannot be characterised as arbitrary or fanciful. It is the date on which the Act of 1961 actually came into force. For the application and the implementation of the Act of 1961 it was necessary to fix a date and the stage of the proceedings which were pending for providing by which enactment they would be governed.

In the case of Khandige Sham Bhat v. Agricultural Income-tax Officer, Kasargod A.I.R. 1963 S.C. 591, the Supreme Court observed as under:

It will then be the duty of the Court to scrutinise the effect of the law carefully to ascertain its real impact on the persons or property similarly situated. Conversely, a law may treat persons who appear to be similarly situated differently; but on . investigation they may be found not to be similarly situated. To state it differently, if is not the phraseology of a statute that governs the situation but the effect of the law that is decisive. If there is equality and uniformity within each group, the law will not be condemned as discriminative, though due to some fortuitous circumstances arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment.' In the present case the situation is practically the same. Mr. Nanavati contends that by fortuitous circumstances, the petitioner and others who were working in Gujarat Agricultural Service Class II were not existing staff members of the transferred institutions while others were such members who got an option to switch over to the services of respondent No. 2. Once it is held that the classification envisaged by Section 52(1) stands the test of reasonableness, merely because the petitioner for some reason was not falling in that class on the relevant date, he cannot make any grievance for not being given the same treatment as members of that class got. Such fortuitous circumstances cannot impinge upon the validity, of the classification envisaged by Section 52(1). Consequently, the second submission of Mr. Vakharia is devoid of any merit and is liable to be rejected.

13. Thus, both the contentions raised by Mr. Vakharia fail. As a result, this petition fails Rule is discharged but in the circumstances there will be no order as to costs.


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