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Judgment
K. Govindarajan, J.—In all the above writ petitions, the petitioners have presented the same, seeking to issue a writ of declaration, declaring
that the petitioners are entitled to continue in service till they attain the age of retirement as per the University Grants Commission Regulations,
namely, 60/62 years as the case may be. Since the averments in all these writ petitions are identical, I am dealing with the same in a common order.
The petitioners on the date of notification dated July 7, 1998 on which date the Government of India accorded permission for Chennai Medical
College and Research Institute, Chennai, as deemed to be University for the purpose of the University Grants Commission Act, 1956, had been
working in the said institute. On that basis the petitioners have claimed that in view of the said notification, they should be dealt with only as per the
University Grants Commission Regulation and not under the Special Rules for the Tamil Nadu Medical Service, according to which the petitioners
have to retire from service at the age of 58.
The learned Senior Counsel appearing for the petitioners has submitted that for the purpose of conversion as deemed university, the Chennai
Medical College, Chennai was converted into an institution registered under the Societies Registration Act and the petitioners had become the
employees of the said Society. When the notification dated July 7, 1998 was issued declaring the said institute as deemed to be university, the
petitioners have automatically become the employees of the university and so the respondents cannot apply the Special Rules for the Tamil Nadu
Medical Service to retire them at the age of 58. In support of his submission, the learned Senior Counsel has relied on G.O.MS. NO. 60 Health
and Family Welfare (MCA) Department dated February 13, 1997 in which the Government have decided to make the teaching staff in the
institution as full time teaching staff with the University Grants Commission scales of pay as and when the institution is declared as deemed
university by the Government of India. The learned Senior Counsel has further submitted that having decided to make the teaching staff in the
institution as teaching staff in the University Grants Commission scales of pay, when it is declared as deemed university in the said Government
Order, now the respondents cannot be allowed to say that the petitioners are not the employees of the university. He has also submitted that by
allowing the petitioners to retire in accordance with the regulations of the University Grants Commission nobody is going to be prejudiced, and so
the petitioners are entitled for the relief as sought for.
In reply to the above submission, Mr. Murugesan, learned Special Government Pleader has submitted that as per the Special Rules for the Tamil
Nadu Medical Service, the petitioners have to retire at the age of 58. According to him, the petitioner in W.P. No. 10953 of 1998 has to retire on
July 31, 1998, the petitioners in W.P. Nos. 13708 and 13710 of 1998 on September 30. 1998 and the petitioners in W.P. No. 13707 and 13709
of 1998 on October 31, 1998. According to him there are 10 Medical Colleges in the State. All the teaching staff are transferable to any one of
those colleges. Merely because the petitioners happened to work on the day of notification dated July 7, 1998 in the Chennai Medical College and
Research Institute, they cannot claim benefit though their services with the parent department are yet to be delinked especially when they cannot
get any automatic confirmation of status as employees of the university. According to him, the university is yet to be established and the process is
going on to establish the university. It is also the case of the learned Special Government Pleader that the university recommendation cannot be
made applicable automatically and the respondents are having power to alter or modify the same and so the petitioners cannot simply rely on
Government Order dated February 13, 1997 which is only a desire and no final order is passed, and, unless the order is passed, the petitioners
cannot claim any right under the said Government Order. There are no regulations or rules framed with respect to the service conditions of the
staff, and even the Board of Management is not yet constituted. On the basis of the abovesaid submissions the learned Special Government
Pleader has submitted that the writ petitions cannot be sustained.
From the above said submission of the learned Senior Counsel appearing for the petitioners, it is clear that to sustain the rights of the petitioners
as claimed in the writ petitions, they are relying on the Government Order in G.O.Ms. No. 60, Health and Family Welfare (MCA) Department
dated February 13, 1997 and the notification dated July 7, 1998. Apart from these documents, no other material is placed before this Court to
show that they had become the employees of the university. Further the learned counsel appearing for the petitioners has submitted that even as
per the bye-laws/Rule of the Society, they are entitled to claim as university employees.
The learned Special Government Pleader, as suggested by the learned Senior Counsel appearing for the petitioners, has produced the Rules of
the Institute which has been registered as Society under the Tamil Nadu Societies Registration Act. The said Rules have been framed, as suggested
by the University Grants Commission. Even according to Rule 22, it is stated that there shall be a Selection Committee for making
recommendations to the Board of Management for appointment to the post of professors, associate professors and assistant professors in the
institute, and such other posts as may be prescribed in the bye-laws. It is not in dispute that even the Board of Management is yet to be
constituted. So, the question of making recommendations for appointment to the post of professors, etc., in the institute has not yet arisen. In view
of the above said Rule, the appointment should be made on the basis of the recommendations of the Selection Committee to be made by the
Board of Management and so the claim of the petitioners that there would be automatic absorption cannot be correct.
It is also not in dispute that except saying that in view of the notification dated July 7, 1988, the petitioners would automatically become
university employees, the petitioners have not pointed out any of the provisions of law or any contract to that effect. It is well settled by the Apex
Court while dealing with similar issue in State of Mysore v. H. Papanna 1970 I LLJ 683 by observing that by way of issuing a notification (similar
in the present case), the status of the employee cannot be changed, except in accordance with law. In the said decision one Papanna Gowda was
appointed as agricultural demonstrator in the Mysore Civil Service and his services were regularised. Subsequently he was transferred and posted
as Chemical Assistant of the Sugarcane Research Station, Mandya in the Department of Agriculture. When he was thus employed, a law made by
the State Legislature called the University of Agricultural Sciences Act, 1963 came into force. He challenged the vires of Section 7(5) of the Act
and the notification issued thereunder. The said sub-section (5) provided that every person employed in any of the colleges specified in the Act
immediately before the appointed day or the date specified in the order shall, as from the appointed day or the specified date, become the
employee of the University on such terms and conditions as may be determined by the State Government in consult ation with the Board. The High
Court allowed the writ petition accepting the case of the writ petitioner that by issuing notification under the said provision, he had been removed
from the civil post held under the State in contravention of the provisions of Article 311. In the appeal filed before the Supreme Court by the State,
the Su preme Court dismissed the appeal, without ac cepting the case of the State. From the above said decision of the Supreme Court it is very
clear that merely by notification the conditions of service cannot be changed automatically un less further proceedings are taken and consent is
obtained from the concerned employee.
In Jawaharlal Nehru University Vs. Dr. K.S. Jawatkar and Others, the Apex Court while dealing with the transfer of centre of Post Graduate
Studies set up by Jawaharlal Nehru University, Imphal to Manipur University, has held as follows at pp. 590-591:
Inasmuch as the transfer of the centre of Post-graduate Studies from the appellant University to the Manipur University could not result in a
transfer of the employment of the respondent from one to the other, it must be concluded that the respondent continues in the employment of the
appellant University. The transfer of the Centre of Post-graduate Studies to the Mainpur 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. But it appears
that the respondent has been adjusted against a suitable post in the appellant University and has been working there without break during the
pendency of this litigation, and we cannot, therefore, permit the appellant University to retrench him.
Similar view has also been taken in Union of India (UOI) and Another Vs. R.G. Kashikar and Another, , wherein it has been held as follows:
The underlying fallacy of the reasoning lies in assuming that the instructors under the scheme ceased to be Central Government employees merely
because of the proposal to transfer the establishment of the National Fitness Corps to the State Governments. They continued to be employees of
the Central Government till the process of absorption was completed. Until then they were still retained in Central Government service although
allocated to different States, and as such employees they were entitled to be treated alike.
In the recent decision in A.K. Pradhan Vs. State of Bihar and Others, , the Apex Court has held that by such absorption, it cannot be held that
the employees stand automatically taken over by the absorbing body.
In view of the above settled principles, the submission of the learned Senior Counsel appearing for the petitioners regarding automatic
absorption cannot be countenanced.
Even the regulations framed under the University Grants Commission are not absolutely binding the Government or University and the
regulations are only in the nature of guidelines. So, it is tor the respondents to frame their own regulations with respect to the service conditions of
the employees and to appoint the teaching staff on the basis of the said regulations or as decided by the Board of Management. That stage has not
yet been reached. Since the lien of the petitioners with the parent department is not disconnected, the petitioners cannot claim that they are not
Government Servants. Unless they are specifically appointed as employees of the university, they cannot claim themselves as employees of the
university, that too on the basis of the said notification. Even as submitted by the learned Special Government Pleader, the Government Order
dated February 13, 1997 is only a desire of the Government and the final order has not yet been passed, by giving effect to the desire of the
Government.
For the foregoing reasons I find that the petitioners cannot claim themselves as the employees of the University and so they have to retire only
as per the provisions of the Special Rules for the Tamil Nadu Medical Services. I do not find any merit in these writ petitions. Hence they are
dismissed accordingly. No costs. Consequently, W.M.P. Nos. 16715, 20846 to 20853 of 1998 are also dismissed.