Dr. R. Muralidharan, Dr. Perialwar, Dr. M. Sethuraman and Dr. V. Chidambaranatha Pillai vs State of Tamilnadu and Tamil University

P. Jyothimani, J.—These writ petitions are filed challenging the Government Order (4D) No. 6, Adi Dravidar and Tribal Welfare

Development Department dated 2 7.03.1998.

The petitioners were appointed as Research Assistants in the Department of Tribal Welfare Centre pertaining to the second respondent

University which was established at Ootacamund. The said Department was established in the year 1983-84. The Government, by G.O. Ms. No.

16 1, Adidravidar and Tribal Welfare (TD) Department, dated 13.09.1995, has taken over the administrative control of Tribal Research Centre

on 13.09.1995. Eventhough the Government has taken the administrative control in respect of the said Department, the Department was well

within the second respondent University. In fact, at one point of time, options were asked for, from the Teachers and Research Assistants like that

of the petitioners, for which the petitioners have given their option to continue to work in the second respondent University. There are various

communications to show that the second respondent University desired to retain the Department by itself, eventhough there were financial

commitments. Ultimately, the impugned order came to be passed by the Government by deputing the petitioners and the said Research Assistants

from the Tribal Welfare Centre to Government Departments. Based on the impugned Government Order, the second respondent has passed

resolution on 28.03.1998. The petitioners challenged the impugned Government Order on various grounds contending that the University

Department cannot be taken away by the Government Order, since the Department is created by the statute. In as much as the second respondent

University was created by the Tamil University Act of 1982 and the Department of Tribal Welfare Centre was forming part of the University

Department, the impugned order by which the Research Assistants like that of the petitioners were sought to be sent on deputation with the

Government is not permissible in law. On the other hand, the second respondent University would contend that when once Government passed the

impugned G.O., the second respondent is bound to follow the same in as much as the entire administrative control of the Tribal Welfare Centre

including the financing was done by the Government and in such circumstance, the second respondent has no other go than following the

Government Order. Eventhough it is admitted by the second respondent University that the University is retaining the Department with it, it had to

follow the Government Order because of the financial constraint.

Mr. Hariparanthaman, learned Counsel for the petitioner, placing reliance on the judgment of the Supreme Court rendered in Jawaharlal Nehru

University Vs. Dr. K.S. Jawatkar and Others, , would submit that the transfer of an University employee to some other Department cannot make

the employee ceased from the University service. The Supreme Court in that case, has held that eventhough transfer has been effected, the transfer

will not make the University servant to be other than an University employee.

The learned Counsel appearing for the petitioners, Mr. Hariparanthaman would also refer to various communications to which the University has

been, time and again, making it clear that the Tribal Research Centre should form part of the second respondent University as such. Further, the

fact that the petitioners and other Research Assisants have also given options to work in the University, is also not disputed. A reference to the

statutes of the second respondent University would show that the post of Research Assistant is an academic post. Further, as seen in Chapter-XX

of the statutes of the Tamil University, the Department of Tribal Welfare (Tribal Research Centre) is a Department constituted in the faculty of

language within the control of second respondent University. When the Tribal Research Centre has been a constituted Department of the

University, it goes without saying that it is only the second respondent University to decide about the closing of the Department in accordance with

the provisions of the Tamil University Act, 1982. Therefore on the face of it, the impugned Government Order seeking the transfer of Research

Assistants working in the Tribal Research Centre of the second respondent University to some other Department is not valid in law. Admittedly,

the University has not passed any resolution for the purpose of closing the Department. On the other hand, a perusal of the entire records would

show that consistently, the second respondent has been taking a stand that the Department should be retained with the second respondent and the

Research Assistants should also be with it. It is also an admitted fact that after the impugned order came to be passed, this Court has stayed the

operation of the order and by virtue of the same, all the petitioners have continued the work in the second respondent University as Research

Assistants / Professors in the Department of Tribal Research Centre, out of whom the petitioner in W.P. No. 5276 of 1998, Dr.Perialwar having

worked as a Professor in the Department, has since retired. It is also relevant to point out that the petitioner in W.P. No. 5276 was working as a

Professor, who retired on 30.06.2000, while the petitioner in W.P. No. 5395 of 1998, Dr.V.Chidambaranatha Pillai is also working as a

Professor, petitioner in W.P. No. 5394 of 199 8, Dr.M.Sethuraman is working as a Lecturer and the petitioner in W.P. No. 5275 of 1998

Dr.R.Muralidharan is working as Research Assistant, who has also been subsequently posted as a Lecturer. Therefore, admittedly all the

petitioners are in the academic side.

In addition to what I have stated as the legal position that the impugned Government Order cannot be deemed to have abolished the

Department itself, the subsequent developments after filing of the writ petitions also worthy to be mentioned. The Government, by letter dated

06.02.2006 has asked the second respondent University to give its opinion as to whether these petitioners can be permitted to continue to work in

the second respondent University itself. It was based on the said letter of the Government, the syndicate of the second respondent University, in its

meeting dated 24.02.2006 has resolved requesting the Government to make all the petitioners as employees of the University once again and also

requesting the Government to release the funds in respect of the salary and other benefits payable and paid, apart from requesting the Government

to reimburse in respect of the pension and other benefits to be payable to its Teachers including that of the petitioners.

The learned Counsel appearing for the second respondent University would submit that in addition to the records which consistently show that

the second respondent has been, at all times, interested in retaining the petitioners and other Professors of the Tribal Research Centre, the

Government itself has now accepted to continue the teaching staff and non-teaching staff with the second respondent. Therefore, according to the

learned Counsel appearing for the petitioners, the said facts were to be recorded while closing the writ petitions. In view of the subsequent

developments as s tated earlier that the petitioners should be continued to be treated as the employees of the second respondent University, I am

of the considered view that no further order is required. However, the legal position as I have stated earlier that any instituted Department of the

University cannot be taken over by the Government, is an established law and the same has been confirmed by the Apex Court more than once.

In view of the said legal position, while disposing the writ petitions, there will be a direction to the first respondent Government to consider the

position taken by the syndicate of the second respondent University for the purpose of reimbursement of the pensionary and other benefits in

respect of the teaching and non-teaching staff working in the Tribal Research Centre and also the payment of salary etc., and pass orders based on

the observations made above.

With the above direction, the writ petitions stand disposed of with no order as to costs. Consequently, the W.M.P. Nos. 8143 of 1998, 8 145

of 1998, 8353 of 1998 and 8355 of 1998 are closed.