1. The Petitioner herein has prayed for the issue of a writ of certiorarified mandamus to quash the communication of the first respondent dated 1st July, 1983 and to direct the respondents to retire the petitioner on the basis of his letter dated 7th February, 1982 with effect from 7th June, 1982 with all monetary benefits without insisting upon him to pay the leave salary contribution at 11% on the salary drawn by him at Ahamadu Bello University at Nigeria.
2. The circumstances under which this writ petition came to be filed may briefly be noted : The Petitioner joined service in the Animal Husbandry Department of the Tamil Nadu Government in the year 1949 as Veterinary Assistant Surgeon. In 1954 the Petitioner was posted as Assistant Lecturer in the Department of Anatomy. Later he passed Ph.D. in Denmark. As a result of his acquiring post-graduate qualification, the petitioner was posted as Head of Anatomy, and as such Professor of Anatomy in the Madras Veterinary College. While so, the State Government decided to transfer the Veterinary College with all its units/research stations to the second respondent, the Tamil Nadu Agricultural University under G.O. Ms. No. 2000, Agriculture dated 16th December, 1978, which came into effect retrospectively from 1st December, 1976. This Government Order was passed under S. 42 of the Tamil Nadu Agricultural University Act, 1971. As a result of the said Government Order, the Petitioner along with all other professors and staff of the Madras Veterinary College became the employees of the second respondent.
3. Thus with effect from 1st December, 1976 the petitioner ceased to be under the service of the Government but became an employee of the second respondent. Even while he was serving in the Veterinary College as head of the department, the petitioner had an offer from Ahamadu Bello University of Nigeria to serve the said University as a Senior Lecturer. In view of the said offer the petitioner sought the permission of the State Government for serving the said foreign University while retaining his lien in the service of the Government. The State Government forwarded the said application of the petitioner by their letter dated 1st November, 1977 to the Government of India subject to the condition that either the petitioner or the foreign employer should pay leave salary and pension contribution to the Government of Tamil Nadu for retaining the lien of the petitioner with the State Government. The petitioner had, by his letter dated 27th November, 1978 expressed his willingness to pay the leave salary and pension contribution to the Government of Tamil Nadu for retaining his lien while serving in Nigeria. But, however, neither the letter dated 1st November, 1977 nor the consent letter sent by the petitioner dated 27th November, 1978 refer to the rate of leave salary contribution payable by the petitioner. Since the petitioner as a Government servant was governed by the Fundamental Rules and the Civil Service Regulations it could be assumed that the leave salary contribution payable by the petitioner should be in accordance with Fundamental Rule 116 which prescribed 11% of the pay drawn in foreign service as the leave salary contribution payable by a person in foreign service. Though the petitioner expressed his willingness to pay the leave salary contribution to the Government for retaining his lien as early as 27th November, 1978, he did not avail of the said benefit during the time he served the State Government. As already stated, the petitioner became an employee of the second respondent on 16th December, 1978 by virtue of G.O. Ms. No. 2000 Agricultural Department dated 16th December, 1978. It is only thereafter the petitioner was granted a 'no objection certificate by the second respondent for obtaining a passport, and a visa to go to Nigeria in connection with his appointment as Senior Lecturer in Veterinary Anatomy in the University of Ahamadu Bello, Nigeria subject to the following conditions :
1) That there should be no financial commitments to the Tamil Nadu Agricultural University and
2) that no pay and allowances will be paid from the Tamil Nadu Agricultural University during the period of his appointment at Nigeria.
Thereafter by proceedings dated 2nd February, 1979 the second respondent permitted the petitioner to take up the appointment at Nigeria for a period of two years retaining his lien in the University on condition that he should pay the leave salary contribution to the University. In the said proceedings, the letter of the petitioner dated 27th November, 1978 expressing his willingness to pay leave salary and pension contribution to the Government for retaining his lien in the University while serving in Nigeria has been referred to. After the said permission the petitioner went and joined the University at Ahamadu Bello University in Nigeria. Thereafter dispute arose as to the rate of leave salary contribution payable by the petitioner to the second respondent University the petitioner contending that he is liable to pay the pension contribution at 11% of the maximum grade pay and the University contending that the same can only be at 11% of the salary received by the petitioner while in foreign service. While that dispute was pending the petitioner applied to the second respondent University for permission to voluntarily retire with effect from 7th June, 1979 after waiving the leave salary contribution for the period from 12th February, 1979 to 7th June, 1979 by his letter dated 18th April, 1982. The second respondent took up the stand that the petitioner cannot voluntarily retire unless the leave salary contribution is paid at the rate contemplated by the Fundamental Rules. It is at this stage the present writ petition has been filed for the reliefs stated above.
4. It cannot be disputed that if the petitioner is continued in government service and availed of the benefit of continuous lien with the Government while serving in Nigeria, he will have to pay leave salary contribution at the rate prescribed by the Fundamental Rules, for the Fundamental Rules apply to all Government servants, whether the rate mentioned in the Fundamental Rule 116 is referred to in the petitioner's letter giving his consent to pay the leave salary contribution or not. But the position here is that though the petitioner agreed to pay the leave salary contribution for continuing the lien with the Government, since the petitioner became the employee of the second respondent long before he got the permission of the second respondent to join foreign service at Nigeria it was not any longer necessary for the petitioner to get the retention of the lien with the Government though the leave salary contribution may be necessary to be paid to the second respondent for retaining his lien with the second respondent. It is no doubt true that in the order dated February 2, 1979 granting permission to the petitioner to take up employment in Nigeria reference has been made to the petitioner's letter dated November 27, 1978 given to the Government expressing his willingness to pay leave salary contribution. But it cannot be forgotten that, that willingness was given at a time when the petitioner has no other go except to comply with the Fundamental Rules. But after the petitioner has become an employee of the second respondent it is only the provisions of the Tamil Nadu Agricultural University Act and the various Regulations made by the University that are applicable to the petitioner. It is not the case of the respondents that all the provisions of the Fundamental Rules are applicable to the employees who have gone over to the University. When the provisions of the Tamil Nadu Agricultural University Act and the Regulations have taken over a particular field in relation to the employees of the University, the provisions of the Fundamental Rules which were applicable to persons like the petitioner before they became employees of the University can no longer apply. Regulation 20 of the Regulations made by the University under S. 38(c) and 48(4) of the Tamil Nadu Agricultural University Act specifically provide for a situation when an employee of a University seeks permission to take up foreign service.
5. Regulation 20(1)(e) empowers the Vice-Chancellor to lay down the duration, emoluments and other conditions including all the costs involved in the transfer by way of travelling and daily allowance etc., and provident fund and leave salary contribution to be made by the foreign employer, in every case of deputation on foreign service. Regulation 20(1)(d) says that no employee of the University on deputation with an outside agency shall be allowed to retain lien on his post for more than five years which means that such an employee can retain the lien for a period of five years with the University, of course, subject to the conditions prescribed by the Vice-Chancellor as to the leave salary contribution and other matters. Thus it is seen that after the petitioner has become an employee of the second respondent University and when the University grants permission to take up foreign service, it is the Vice-Chancellor who has to lay down the requisite conditions for payment of leave salary contribution including the rate of such contribution to be made by the foreign employer or the employee concerned. The power to lay down conditions under Regulation 20(1)(e) is general in nature and that power cannot be taken to include to pass individual orders with reference to individual cases. It is not in dispute that the second condition is contemplated in Regulation 20(1)(e). It is a moot point whether the Vice-Chancellor when laying down the conditions contemplated in Regulation 20(1)(e) generally, can pass separate orders in individual cases. If the Vice-Chancellor is taken to have such a power, then it is possible that he may impose different conditions in respect of different individuals leading to arbitrary exercise of power. Therefore, Regulation 20(1)(e) can only be construed as enabling the Vice-Chancellor to lay down general conditions in the matter of grant of permission to its employees to take up foreign service.
6. Then the question is whether the second respondent University can enforce the payment of 11% of the monthly foreign salary of the petitioner based on the consent given by him in his letter dated November 27, 1978. As already stated, that letter was given for continuance of the lien with the State Government for the petitioner was a Government servant then and the requisite condition for continuance of such lien with the Government was the payment of 11% of the foreign salary. But after the petitioner became an employee of the University he should be taken to have sought the continuance of the lien with the University and it is only subject to such conditions as may be prescribed by the University. The mere fact that the petitioner has given his consent at an earlier stage to the Government, that cannot be enforced by the second respondent. No doubt, if the Vice-Chancellor exercising the power under Regulation 20(1)(e) has prescribed the same rate of leave salary contribution as has been referred to in Fundamental Rule 116 as part of the University's Regulations, then it is possible for the University to levy the contribution at that rate. In this case the University itself proceeded on the basis that the leave salary contribution payable by the petitioner should be at 11% of his grade pay as seen from the enclosure to the University's letter dated October 20, 1982. No doubt, this letter was subsequently revoked and a demand was made for the payment of the leave salary contribution at 11% of the monthly foreign salary. But even without reference to the different stands taken by the University at different stages, I do not see how the petitioner could be asked to pay the leave salary contribution at the rate mentioned in Fundamental Rule 116. As already stated, if in the letter permitting the petitioner to take up foreign service 11% of the foreign salary is referred to as the leave salary contribution and the permission is given subject to that condition, then it would have been a different matter. In that case it will be enforcement of the contractual terms entered into between the University and the petitioner. If the University has imposed a condition as to the payment of 11% of the foreign salary as leave salary contribution for permitting the petitioner to take up foreign service and the petitioner agreed to that condition, then the petitioner may not be permitted to go behind the terms of the contract or to rescind it. But here the petitioner's consent letter alone has been referred to in the order permitting the petitioner to take up foreign service and in that letter no reference is made to any rate of contribution. Merely because at the time when the petitioner gave the consent letter the rate of contribution had been fixed under Fundamental Rule 116 at 11% that rate cannot be automatically applied after the petitioner has become an employee of the second respondent. University, and the Regulations of the University contemplate the rules being framed by the Vice-Chancellor for that purpose. The learned Advocate-General, however, relies on S. 42(2) of the Tamil Nadu Agricultural University Act in support of his submission that all the employees transferred to the University from the Government are governed by the same tenure, same remuneration and the same terms and conditions and with the same rights and privileges as to pension or gratuity, if any, and other matters as he would have held the same on the date specified in the order under S. 42(1). A close reading of the said provision indicates that the section is intended to ensure that the transferred personnel will not be put to any disadvantage and that they will continue to enjoy the same rights and privileges as they were enjoying before transfer. According to the learned Advocate-General, since the petitioner has given his consent to pay leave salary contribution it should be taken to be a liability and that liability continues even after the petitioner has ceased to be a Government servant and has become an employee of the University. It is also said that the liability to pay leave salary contribution will also fall under the terms and conditions of service. I do not see how the consent letter given by the petitioner for getting some privilege will amount to part of the terms and conditions of service and how the consent letter given to the Government could be treated as one creating a liability. If the petitioner has been permitted by the Government to take up foreign service while he was in the service of the Government, then the petitioner can be taken to have incurred a liability to pay the leave salary contribution at the rate mentioned in Fundamental rule 116. But in this case it cannot be said that the petitioner has been given the privilege by the Government. The privilege was actually given only by the second respondent University. It should be remembered that the University is not bound by the decision of the Government to permit the petitioner to take up foreign service on the basis of the consent letter. The University, with reference to the exigencies of service, could have refused permission to the petitioner to take up foreign service based on the consent letter given by the petitioner earlier to the Government. Therefore it cannot be said that under S. 42(2) of the Act the petitioner can enforce the grant of permission to take up foreign service. If the petitioner is in a position to enforce the privilege which has already been given by the Government as against the University then the petitioner is bound by the consent letter given by him. But where the privilege, if any, granted by the Government is not binding on the University, the University should be taken to have acted independently and not on the basis of the decision if any taken by the Government either to grant permission to take up foreign service or not.
7. In this case, as already stated, the University has not made a Regulation fixing 11% of the monthly foreign salary as leave salary contribution as is found in Fundamental Rule 116. Therefore, the University cannot enforce the payment of leave salary contribution at that rate. Normally the rate applicable to a person like the petitioner who is on deputation, is only 11% of the grade pay. That was the original stand taken by the University itself. Therefore I have to hold that the petitioner has to pay the leave salary contribution at 11% of the maximum grade pay of the petitioner. Though the writ petitioner has asked for a direction to the second respondent to voluntarily retire him from a certain anterior date, that is a matter to be considered by the University. Now that the controversy between the petitioner and the second respondent University as regards the rate of leave salary contribution has been decided, the University will naturally consider the petitioner's request for voluntary retirement according to the Rules and Regulations. Therefore, I am not giving any directions as sought for by the petitioner.
8. The result is the writ petition is allowed in part and the communication dated July 1, 1983 impugned in the writ petition in so far as it relates to the demand for leave salary contribution at the rate of 11% of the monthly foreign salary contribution is quashed with the declaration that the petitioner is liable to pay the leave salary contribution at the rate of 11% of his maximum grade pay. There will, however, be no order as to costs.