vil Appeal Nos
23 19 2320 of 1981
From the Judgment and Order dated 1431980 of the Madras High Court in Writ Petition Nos 4959 and 4960 of 1975
236 Soli J Sorabjee Harish N Salve section Ganesh Mahapa tra PS Shroff and Mrs PS Shroff for the Appellant
NA Palkhiwala Gauri Shanker SC Manchanda JB Dadachanji Mrs AK Verma DN Mishra MS Harau Ram Chandran Mrs J Ramachandran Ms A Subhashini and CV Subba Rao for the Respondents
The Judgment of the Court was delivered by PATHAK CJ
These appeals by special leave are directed against the judgment and order of the High Court of Madras dismissing the writ petitions filed by the appellant against the refusal of the first respondent to rectify an assess ment order and pass consequential directions
Shri Anantharamakrishnan a reputed industrialist in Tamil Nadu died in the state in Madras on 18 April 1964
He left behind his widow Valli his two sons Sivasailam and Krish namoorthy and two daughters Kalyani and Seetha
Some time after his death Sivasailam as an accountable person ren dered the estate duty account
All the heirs other than Sri Sivasailam who were also accountable persons wrote to the Assistant Controller of Estate Duty on 15 December 1964 that as accountable persons they agreed to abide by the accounts  rendered by Sri Sivasailam and any explanation furnished by him with regard to the Estate Duty case would be binding on them
Messrs Amalgamations Private Ltd shortly referred to as Amalgamations  is a company which holds shares in most of the companies including Simpson and Company Ltd shortly referred to as Simpson  of the group
By letter dated 27 April 1965 Amalgamations informed the assessing authority that the deceased had transferred property in the form of shares in Simpson to it and that the deceased had controlling interest in that company at the time of his death
On 13 September 1965 the assessing authority wrote to Amalgamations that the deceased had transferred 80377 shares of Simpson and therefore Amalga mations was a controlled company within the meaning of section 17 of the Estate Duty Act
By virtue of section 191 of the Estate Duty Act the controlled company had to be regarded as one of the persons accountable for the estate of the deceased
Amalgamations was required to submit an account of the estate
Amalgamations filed a return before the Assistant Controller
No objection was raised by the heirs of the deceased or by Amalgama 237 tions to the latter being treated as an accountable person
After due enquiry the assessment of Estate Duty was completed on 27 January 1970 and the duty payable by the estate was determined at Rs 1677469758 of which provi sional duty had been paid in the amount of Rs655045273 leaving a balance of Rs1022424485
The assessment order was addressed to Amalgamations as well as Sri Sivasailam as accountable persons
The Assistant Controller of Estate Duty proceeded on the basis that Amalgamations was a controlled company and the deceased had control over its affairs and therefore valuation of the shares held by the deceased in the company had to be made in the manner laid down in Rule 15 framed by the Board under section 301e of the Estate Duty Act
The principal value of the assets was determined at Rs21229998 and the duty was computed at Rs 1677469758
There was no appeal against the assessment by any of the accountable persons
Kalyani Sundaram one of the daughters of the deceased and the appellant before us became entitled to the death of Anantharamakrishnan to a fifth share in his estate under the Hindu Succession Act
Her husband KS Sundaram as her agent constituted by power of attorney wrote on 11 June 1974 to the Assistant Controller seeking certain clarifica tions regarding the assessment
The Assistant Controller replied on 25 June 1974 referring to the specific agreement of the accountable persons to abide by the accounts rendered by Sri Sivasailam and to be bound by any explanation given by him
The Assistant Controller referred to the fact that all subsequent proceedings had been completed after discus sion with Sri Sivasailam and Amalgamations and as the as sessment had now become final it was not possible to enter into any discussion concerning it
On 2 January 1975 the appellant s husband as agent filed an application under section 61 of the Estate Duty Act contending that the assessment order was vitiated by several errors inasmuch as Rule 15 prescribed only the method of valuation of the shares and debentures of the controlled company and the Rule was an appendage to sections 36  37 of the Act that unless property was transferred without considera tion by the deceased to Amalgamations and some benefit accrued to the deceased from the company section 171 of the Act would not be attracted that the decision to treat Amalgama tions as an accountable person because of the transfer of shares rested on the transfer of shares made by the de ceased that on a number of aspects of the case the assess ment order did not show any detail and therefore a rectifi cation 238 order should be made indicating the exact amount included under section 171 of the Act as the property passing on the death of the deceased
He required this information he said to enable him to work out the amount which his princi pal had to pay to Amalgamations by way of reimbursement of the duty
If the apportionment of the duty had been effected by the order itself he said the need for rectification would not have arisen
Section 61 empowers the Controller to rectify any mistake apparent from the record at any time within five years from the date of the order passed by him
On 25 Janu ary 1975 the Assistant Controller passed an Order declaring that he was unable to discover any mistake which called for rectification in the assessment order and therefore he declined to act under section 61 of the Act
This order was challenged by the writ petitions out of which the present appeals arise
The High Court dismissed the writ petitions
Sethuraman J held that there was no apparent error and therefore no reason for invoking section 61 of the Act and Balasubramanyan J in a concurring judgment held likewise and also dealt with other aspects of the case
BOth learned Judges were of the view that the proceeding reflected a private dispute between the appellant and other members of the family and that the forum and remedy selected by the appellant were not appro priate for that purpose
The fundamental question in these appeals is whether the appellant is right in invoking section 61 of the Act
Learned counsel for the appellant contends that the heirs of the deceased on whom the estate devolves are liable to pay estate duty attributable to the property which falls to their respective shares and that if an accountable person pays any part of the estate duty in respect of any property not passing to him he is entitled to reimbursement by the person entitled to such property
This says learned coun sel has no application in respect of the duty payable by virtue of section 17 of the Act which provides that the slice of the assets of a controlled company shall be deemed to pass on the death of the deceased for the purposes of estate duty and the slice will be included in the property passing on his death if the deceased made a transfer of that property to the controlled company and benefit accrued to the de ceased in the three years ending his death
The slice of the assets of the controlled company does not come to any heir therefore no heir is called upon to pay the amount of estate duty attributable to the inclusion of that slice 239 in the chargeable estate
By section 19 the controlled company itself is liable to pay the corresponding amount of estate duty
In the present case however learned counsel urges no slice of the assets of Amalgamations has been included in the estate of the deceased by the assessing authority as property deemed to pass on the death of the deceased and therefore the demand issued to the controlled company con stitutes a mistake apparent from the record
The application of Rule 15 is also contested and this according to learned counsel is a clear mistake committed by the Controller
It is urged that there is a mistake apparent from the record in the directions requiring Amalgamations to pay the entire amount of estate duty
It seems to us that all the heirs other than Sivasailam had agreed that as accountable persons they would abide by the accounts rendered by Sivasailam and any information furnished by him with regard to the estate duty matter would be binding on them
The appellant cannot be heard now to dispute the quantum of liability and the basis on which the liability was computed
Nor is it open to her to contend that it is not Amalgamations which is liable to pay the duty but the duty is payable by the heirs of the deceased
The assessment has become final and no appeal against it has been attempted
It was for the benefit of the heirs that there was general agreement to have the assessment made on Amalgamations and indeed when the assessment was completed and finalised no objection was taken
The appellant acqui esced wholly and completely in the assessment to estate duty being made on Amalgamations
No separate assessment was made on the appellant nor on the other heirs
The assessment was completed in 1970 and the entire estate duty has now been paid up
It was only after the entire estate duty was paid that the appellant filed the application for rectification on 2 January 1975
It was contended by learned counsel for the private respondents that the appellant enjoyed no locus standi in order to maintain the application under section 61 and these appeals thereafter but we do not propose to enter into this question
Further it appears that this litigation is woven around a private dispute among the family members
That is hardly any justification for invoking section 61 of the Act
We have carefully perused the reasons given individually by the two learned Judges of the High Court and we are in complete agreement with them that there is no mistake appar ent on the record
240 In support of the contention that there was a mistake apparent on the record learned counsel has referred us to Hari Vishnu Kamath vs Syed Ahmed Ishaque and Others   1123 Hind Trading Company vs Union of India  Anr   MK Venkatachalam Income Tax Officer and Another vs Bombay Dyeing and Manufacturing Co Ltd   149 50 and Commissioner of Income Tax Madras vs Mr P Firm Muar 15822 but having regard to the facts of the case before us we do not find anything in those cases which can be of assistance to the appellant
Learned counsel for the appellant states that having regard to the terms of the order granting special leave to appeal the appellant is justified in requesting the court to consider the issues on the merits
We are unable to spell out such intent of the Court from the terms of the order granting special leave to appeal
We do not think that the observations of the Court in Thungabhadra Industries Ltd vs The Government of Andhra Pradesh   180 affect the position before us
The real question is whether the assessment was justi fied on Amalgamations or should it have been taken against the heirs of the deceased
In our opinion that question stands concluded now and upon all the facts and circum stances of the case we do not think it permissible for the appellant to have recourse to section 61 of the Act in order to re open the case
The appeals are dismissed there is no order as to costs
YL Appeals dis missed


Summary:
The appellant Jawaharlal Nehru University had set up a Centre of Post Graduate Studies at Imphal under section 52 of the University Act
The Respondent while he was working as a temporary research Assistant in the School of International Studies of the University was offered the post of Associate Fellow at the Centre of Post graduate Studies Imphal on ad hoc basis which offer was accepted by him on 3 December 1973
His term of appointment was extended from time to time
On 21st March 1979 the University offered him the post of Assistant Professor in the Political Science Divi sion at the Centre at Imphal for a period of two years
The respondent joined the post on 29 August 1979
Later he was appointed as such on a regular basis from the date of his initial appointment and was confirmed with effect from the same date
The Centre of Post graduate Studies at Imphal was to be merged with the Manipur University as provided in the Mani pur University Act 1980
On 3 February 1981 the Syndicate of the Jawaharlal Nehru University provided for the transfer of the Centre to the Manipur University and resolved that the members of the faculty employed by the Jawaharlal Nehru University Centre of Post graduate Studies Imphal immedi ately before its merger into the Manipur University would on and from that date become members of the staff of the Manipur University
The respondent filed a writ petition in the Delhi High Court praying for the quashing of the Resolution of the Jawaharlal Nehru University whereby his services were trans ferred to the Manipur University
The learned Single Judge allowed the writ petition holding that the respondent could not be obliged to join the Manipur University and that he was confirmed as Assistant Professor in the employment of the 274 Jawaharlal Nehru University in its Imphal Centre and was entitled to continue in service until he attained the age of 60 years
In appeal the Division Bench upheld the view that the services of the respondent could not stand automatically transferred with the transfer of the Centre at Imphal from the Jawaharlal Nehru University to the Manipur University
Dismissing the appeal this Court HELD 1 The Centre of Post graduate Studies was set up at Imphal as an activity of the appellant Jawaharlal Nehru University
To give expression to that activity the Univer sity set up and organised the Centre at Imphal and appointed teaching and administrative staff to man it
Since the Centre represented an activity of the University the teach ing and administrative staff must be understood as employees of the University
279H 280A 2 The contract of service entered into by the respond ent was a contract with the appellant University and no law can convert that contract into a contract between the re spondent and the Manipur University without automatically making it either expressly or by necessary implication subject to the respondent s consent notwithstanding any statutory provision to that effect whether in the Manipur University Act or otherwise
The position of law is clear that no employee can be transferred without his consent from one employer to another
The consent may be express or implied
280B C E 3 The transfer of the Centre of Post graduate Studies to the Manipur University may be regarded as resulting in the abolition of the post held by the respondent in the appellant University
In that event if the post held by the respondent is regarded as one of a number of posts in a group the principle last come first go will apply and someone junior to the respondent must go
If the post held by him constitutes a class by itself it is possible to say that he is surplus to the requirements of the appellant University and is liable to be retrenched
Since
however the respondent has been adjusted against a suitable post in the appellant University during the pendency of the litiga tion the appellant cannot be permitted to retrench him
280F H 281A