Kerala High Court
Dr. K. Prathapan vs Kerala Agricultural University on 5 October, 2017
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 28TH DAY OF NOVEMBER 2017/7TH AGRAHAYANA, 1939
WP(C).No. 33714 of 2017 (L)
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PETITIONER:
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DR. K. PRATHAPAN,
PROFESSOR (AGRONOMY),
COCONUT RESEARCH STATION,
KERALA AGRICULTURAL UNIVERSITY,
BALARAMAPURAM,
THIRUVANANTHAPURAM-695501.
BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.)
SRI.S.ABHILASH
SRI.K.SIJU
SMT.RENY ANTO
KUM.KAVYA SOMAN
RESPONDENTS:
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1. KERALA AGRICULTURAL UNIVERSITY,
REPRESENTED BY THE REGISTRAR,
MAIN CAMPUS, VELLANIKKARA,
KERALA AGRICULTURAL UNIVERSITY P.O.,
THRISSUR-680656.
2. VICE CHANCELLOR,
KERALA AGRICULTURAL UNIVERSITY,
MAIN CAMPUS, VELLANIKKARA,
KERALA AGRICULTURAL UNIVERSITY P.O.,
THRISSUR-680656.
3. PROFESSOR AND HEAD,
COCONUT RESEARCH STATION,
KERALA AGRICULTURAL UNIVERSITY,
BALARAMAPURAM,
THIRUVANANTHAPURAM-695501.
R1-R2 BY ADV. SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL UNIVERSITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-11-2017,
ALONG WITH WPC.33715/2017 & WPC.34355/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
EL
WP(C).No. 33714 of 2017 (L)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 UNIVERSITY ORDER DATED 5.10.2017 PROMOTING THE PETITIONER TO
THE POST OF PROFESSOR.
EXHIBIT P2 PHOTOCOPY OF ORDER DATED 25.9.2017 OF THIS HON'BLE COURT IN
CCC NO.1020/2016.
EXHIBIT P3 COPY OF ORDER DATED 21.10.2017 TRANSFERRING THE PETITIONER TO
PDANNAKKAD, KASARAGODE.
EXHIBIT P4 PHOTOCOPY OF THE TRANSFER NORMS CIRCULATED ALONG WITH ORDER
DATED 13.4.1999.
EXHIBIT P5 PHOTOCOPY OF THE ORDER OF APPOINTMENT DATED 20.1.1996.
EXHIBIT P6 PHOTOCOPY OF THE TRANSFER ORDER DATED 26.5.1998.
EXHIBIT P7 PHOTOCOPY OF THE TREATMENT CERTIFICATE OF PETITIONER'S FATHER.
EXHIBIT P7(A) PHOTOCOPY OF THE TREATMENT CERTIFICATE OF PETITIONER'S MOTHER.
EXHIBIT P8 A COPY OF THE FULL TEXT OF THE UNIVERSITY ORDER DATED
27.9.2017
EXHIBIT P9 A PHOTOCOPY OF THE UNIVERSITY ORDER DATED 15.8.2017
EXHIBIT P10 A PERFORMA OF AGREEMENT
EXHIBIT P11 A TRUE COPY OF THE LETTER DATED 10.10.2017
RESPONDENT(S)' EXHIBITS
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EXHIBIT R1(A) TRUE COPY OF THE LETTER DATED 8.9.2017
EXHIBIT R1(B) TRUE COPY OF THE REPRESENTATION SUBMITTED BY N.SREEHARI
EXHIBIT R1(C) TRUE COPY OF THE REPRESENTATION SUBMITTED BY N. SREEHARI
EXHIBIT R1(D) TRUE COPY OF THE REPRESENTATION SUBMITTED BY N. SREEHARI
EXHIBIT R1(E) TRUE COPY OF REPLY THE REPRESENTATION SUBMITTED BY N. SREEHARI
EXHIBIT R1(F) TRUE COPY OF THE LETTER DATED 7.10.2017 ISSUED FROM THE OFFICE
OF THE CHANCELLOR
EXHIBIT R1(G) TRUE COPY OF THE DIRECTION ISSUED FROM THE OFFICE OF PRO
CHANCELLOR VIDE NO.1872458/17/M
EXHIBIT R1(H) COPY OF THE ORDER DATED 27.9.2017
TRUE COPY
P.S. TO JUDGE
EL
P.V.ASHA, J.
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W.P(C) Nos.33714 of 2017-L, 33715/2017-L
and 34355/2017-T
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Dated this the 28th day of November, 2017
JUDGMENT
Petitioners in all these writ petitions are Professors working under the Kerala Agricultural University (hereinafter referred to as ''the University"'). They have filed these writ petitions aggrieved by the order dated 21.10.2017 of the University, by which they stand transferred and posted to College of Agriculture, Padannakkad, saying that they have not completed their bonded obligation at the College of Agriculture, Padannakkad. The transfer was ordered on the basis of a letter dated 17.10.2017 of Associate Dean of the College at Padannakad informing the acute shortage of teachers in the college, which was drastically affecting the academic program of the college. Apart from that the Honourable the Governor of Kerala and Chancellor of the University as well as the Hon'ble Minister for Agriculture, Kerala and Pro Vice Chancellor of the University have directed the University to take immediate measures to address the grievances of the students of the college at Padannakkad. 6 teachers including the petitioners, who were stated to have not completed the bonded obligation at the College W.P(c).No.33714/2017 & c/cases 2 at Padannankkad were therefore transferred.
2. The common contentions raised in all the three cases are (1) petitioners ceased to have any obligation to serve at Padannakkad at the moment they were transferred from that institution, without any request from them and at any rate they ceased to have any such obligation once they got promotion from the post of Assistant Professors.
3. The second contention is that (2) petitioners who are Professors working in various institutions under the University are transferred to a College where there is no post of Professor to accommodate them and the posts available are already manned; transfer to an institution where there is no post is impermissible, as transfers can only be from cadre to cadre, otherwise it would amount to demotion.
4. The contention of the University is that obligation to work at the College where they were appointed is not confined to the post to which they were appointed and therefore it obliges them during the entire tenure of the service.
5. On the contention about the transfers without post, it is stated that they are all granted only career advancement promotion and therefore their promotions were not against any posts, their posts only got upgraded. W.P(c).No.33714/2017 & c/cases 3 Posts at Padannakad would be upgraded to that of Professor.
Contentions are the following in each of the cases:
W.P(c).No.33714/2017
6. The petitioner is presently working as Professor in Agronomy in the Coconut Research Centre, Balaramapuram, on the basis of promotion granted to him as per Ext.P1 order dated 5.10.2017. He commenced his service in the University as Assistant Professor of Agronomy, on appointment as per Ext.P5 order issued on 20.01.1996. As per Ext.P5 order he was posted against a vacant post in the College of Agriculture at Nileswar, Pilicode. He joined the College on 30.01.1996. While working there, the University issued Ext.P6 order on 26.05.1988 to the Department of Agronomy, College of Agriculture, Vellayani. The petitioner submits that the transfer as per Ext.P6 order was ordered in the interest of the university and not on the basis of any request from him. His contention is that Ext.P5 order of appointment was in accordance with Section 42 of the University Act, on the basis of the recommendation of the Selection Committee and as per that order he would be treated as an employee of the University as part of approved cadre. Clause 4(i) of Ext.P5 order provided that the selected candidate would work in the station to which he is appointed, for a W.P(c).No.33714/2017 & c/cases 4 minimum period of 5 years or till the termination of the scheme/project and that requests for transfer would not be entertained under any circumstances.
7. Producing the order Ext.P2 dated 05.09.2017, passed by this Court in the Contempt Case filed by him and explaining the attitude of the respondents in implementing the judgment in W.P(c).No.9390 of 2012 filed by him, the petitioner alleges malafides and victimisation behind Ext.P3 order of transfer. By the judgment in W.P(c).No.9390 of 2012 the respondents were directed to reckon the previous service rendered by the petitioner in the Rubber Research Institute and the University did not succeed in the writ appeal or the Special Leave Petition. The petitioner claims that Ext.P1 order was issued only on 05.10.2017, in implementation of the judgment, that too, only after this Court passed Ext.P2 order. The petitioner was promoted on 5.10.2017 as Professor w.e.f 3.11.2009. The present order of transfer Ext.P3 comes even before completion of three weeks; according to him, there are several others who have completed more than 20 years in the same institution without being subjected to any transfer. It is claimed that he is not liable to be transferred even before he completed 3 weeks in the post of Professor. It is also stated that his parents are aged and ailing after undergoing cardiac surgery and a transfer at this stage will W.P(c).No.33714/2017 & c/cases 5 cause very serious hardship to him; as per the transfer norms circulated as per Ext P4 order on 13.04.1999, only cadre to cadre transfer alone is permissible.
8. It is his further case that there is only one post of Professor in Agronomy in the college of Agriculture, Padannakkad, which is already occupied by Dr. Bright.T.K and therefore the transfer to a college where there is no post can only be found as victimisation. It is further pointed out that there is no reason to choose him for transfer, from among various Professors available in Agronomy. According to petitioner, transfers cannot be ordered except in accordance with the norms Ext.P4 and a Professor cannot be posted to a college where there is no vacant post to accommodate him. In case such norms are followed, the petitioner is not liable to be transferred, that too, to far off places, at this distance of time and in the midst of academic year.
W.P(c).No.33715 of 2017
9. The petitioner is presently working as Professor and Principal Investigator in All India Net Work Project on Pesticide Residues, Kerala Agricultural University in Thiruvananthapuram. His initial appointment in the University was as Assistant Professor in Soil Science and Agricultural W.P(c).No.33714/2017 & c/cases 6 Chemistry, at the college of Agriculture, Nileswar as per Ext.P2 order on 23.1.1996 and he joined there on 24.1.1996, after executing an agreement with the University as directed in the order of his appointment. Clause 4(1) of the Order of appointment Ext.P2 provided that the selected candidate would work in the station to which he is appointed for a minimum period of 5 years or till the termination of the scheme/project. But the petitioner was transferred to the Department of Soil Science and Agricultural Chemistry in the College of Agriculture, Vellayani as per Ext.P3 order on 26.5.1998. According to the petitioner, the transfer was not at his request. The present order transferring him to College of Agriculture, Padannakkad dated 21.10.2017 is issued saying that the teachers mentioned therein have not completed their bonded obligation to work in the College at Padannakad for 5 years.
10. The contention of the petitioner is that as per the norms, transfer can be ordered only from cadre to cadre. It is his case that the only post of Professor in the Department of Soil Science and Agricultural Chemistry in the College of Agriculture, Padannakkad, is manned by Dr.Suresh P.R and therefore the transfer of the petitioner to a college where there is no post is illegal and impermissible. Moreover, he does not have any W.P(c).No.33714/2017 & c/cases 7 bonded obligation to work at Padannakad, once he got promotion from the post of Assistant Professor. The petitioner took charge as Professor only on 13.7.2016. The petitioner further submits that he is holding the post of Professor and Principal Investigator of All India Net Work Project on Pesticides Residue funded by ICAR, Government of India; the financial liability of the University is only 25% when the petitioner is holding the present post; he is the Principal Investigator of Central Sector Scheme on monitoring of pesticide residues at national level funded by Government of India with annual funding of Rs.35 lakhs; the petitioner is in the control and supervision of 12 contractual employees working under that project; he is the custodian of sophisticated instruments worth Rs.12 crores which are installed in the art lab of Government of Kerala; he is the Principal Investigator of supervised trials for residue data generation of new pesticides; the laboratory headed by him is a national level NABL accredited laboratory; he is also serving as Technical Manager, the authorised signatory to all the NABL documents and reports; it is the only laboratory performing analysis of Pesticide Residues as per international standards, protocols and issuing test certificates with NABL logo in the public sector in Kerala; he is the only Chemist available in the lab for W.P(c).No.33714/2017 & c/cases 8 verification of procedure and reports; he is in charge of RKVY projects on strengthening of pesticide residue laboratory of the University at Vellayani to the status of a State referal laboratory with a total budget outlay of Rs.694 lakhs. According to him, his transfer from the post is contrary to public interest as there would not be anybody competent to hold charge of the aforesaid posts, which will result in huge loss to the nation itself. Ext.P4 is the order transferring him. The petitioner submits that he is transferred without indicating the post to which he is transferred and hence the same is in gross violation of Ext.P5, the revised norms issued in 1999; clause 20 of the norms prohibits transfers of Principal Investigators before completion of Projects and the transfer within one year of promotion is contrary to the norms which provides for transfers only on completion of 3 years in a post/station; according to him, there is no competent substitute for him to run the projects; the transfer is ordered saying that he has not completed 5 years of bonded obligation. The obligation to work for 5 years as per clause 4(i) is only to work in the post to which he was appointed; viz. Assistant Professor; the provision in clause 4 of the appointment order is not one which can be enforced on a Professor; the transfer to a non-existing post is actuated by malafides and arbitrariness and is illegal. W.P(c).No.33714/2017 & c/cases 9
11. It is alleged that there is no public interest involved in the transfer. According to him, the shortage of teaching staff is in the post of Assistant Professor and he being a Professor cannot be transferred on that ground in the absence of a post and transfer can be only from cadre to cadre; the transfer of the petitioner would adversely affect the prospects of the laboratory where the petitioner is the only competent person authorised to issue test certificates and it is the only lab which issues authentic certificates regarding the tests conducted on estimation of pesticides residue in food commodities.
12. The 1st respondent filed a counter affidavit stating that the obligation of the petitioner to work at Padannakkad does not cease to exist on his promotion and justifying the transfer in the light of Exts.R1(a) to R1
(h) letters, pointing out the public interest involved in the transfer. The petitioner filed a reply affidavit, in which it is stated that there are only 3 Assistant Chemists in the institute where he is working and 2 posts are lying vacant; he is heading a project funded by ICAR; the persons in charge of the project are those selected and posted by ICAR; there is nobody appointed by ICAR who can certify the test results; the drawing and disbursing officer, who was appointed was already removed. The petitioner submits that as per W.P(c).No.33714/2017 & c/cases 10 Ext.P9 letter dt.10.11.2015, he is the person nominated as Principal Investigator and Centre in Charge, AINP and as per Ext.P10 order he was declared as the Principal Investigator of AINP, Pesticide Residue of the University; as per Ext.P11 dated 14.07.2015, he was nominated as the Principal Investigator of the RKVY project and as per Exts.P12(a) to P12
(d) orders administrative and technical sanction were accorded to various other projects which would be completed in March, 2018 and all these projects are large scheme projects and therefore the transfer in violation of clause 20 of the norms is a clear case of abuse of power by the Vice Chancellor and any act of shifting from that post will result in huge loss. The petitioner disputes the authority of the Associate Dean in pointing out the necessity of 3 teachers for handling PG courses in order to solve the problem of shortage of staff. Pointing out the University order Ext.P7 dated 15.08.2017 and Ext.P6 order issued on 27.09.2017. According to the petitioner, Ext.R1(a) letter dt.8.9.2017 of the Associate Dean pointing out the requirement of minimum 3 permanent teachers for handling P.G classes and requesting to solve the problem of shortage of teaching faculty is misleading. It is pointed out that the University Order Ext.P4 issued on 21.10.2017 has excluded all teachers, who are Assistant Professors W.P(c).No.33714/2017 & c/cases 11 obligated to take classes at the College of Agriculture, Padannakkad as instructed in Ext.P7 order dt.15.8.2017. The petitioner claims that he has executed only an agreement on 3.2.1996 as required under Section 42(2)(a) of the Kerala Agricultural University Act, 1971 and that there is no clause in that agreement which insists him to work at the College of Agriculture, Padannakkad for 5 years. He is relieved of that obligation once he was transferred out in the interest of the University. As long as there is no post as on 21.10.2017 to accommodate him, his transfer is illegal; the Vice Chancellor does not have any power to upgrade or degrade any post. The respondents produced the agreement executed by the petitioner at the time of his appointment along with I.A.No.18119 of 2017.
W.P(C).No.34355 of 2017
13. The petitioner's initial appointment was as per Ext.P1 order as Assistant Professor in Plant Breeding and Genetics on 1.4.1998. She was posted in the College of Agriculture, Nileswar against the post shifted as per the University Order dated 13.12.1995. The appointment was on contract basis as required under Section 42 of the Kerala Agricultural University Act, 1971 and the period of appointment was stated to be till she attained the age of superannuation. Clause 4 of the order provided that the selected W.P(c).No.33714/2017 & c/cases 12 candidates will work in the station to which she is appointed for a minimum period of 5 years or till the termination of the scheme/project and that request for transfer will not be entertained under any circumstances. As required in the order of appointment she executed agreement in stamp paper worth Rs.60/-. While working in Nileswar, she was transferred as per Ext.P2 order on 8.6.1999 and was posted at Agricultural Research Station, Mannuthi. Thereafter, she was transferred to All India Coordinated Research Project (AICRP) on Cashew Research Station, Madakkathara, as per Ext.P3 order. The order Ext.P5 issued on 21.10.2017 transferring her to the College of Padannakkad is issued while she has been continuing in the College of Agriculture, Vellayani on the basis of Ext.P4 order issued on 13.11.2003. It is stated that the petitioner's husband is working as Associate Professor in the very same University under the Department of Farm Power Machinery and Energy in Kelappagy College of Agricultural Engineering and Technology, Thavanoor and both of them got a transfer to College of Agriculture, Vellayani. According to the petitioner, she is working as Principal Investigator of an Externally Aided Project funded by Department of Bio Technology with an outlay of Rs.70,000/-; she is also the Principal Investigator of 2 other State Plant Projects with an outlay of Rs.12.5 lakhs W.P(c).No.33714/2017 & c/cases 13 and any movement from the present post would cause very serious loss.
14. As per the counter affidavit the transfer of the petitioner is necessitated on account of acute shortage of teaching staff in the college of Padannakkad to handle P.Gclasses. It is also pointed out that out of the 781 posts of teaching staff in the University, 50% of them are lying vacant and the University is taking steps for recruitment of Assistant Professors and since the process of direct recruitment is time consuming, the University has decided to transfer some of the teachers to the College of Agriculture. It is also pointed out that majority of the P.G courses in the college are having practicals and the courses are designed to be taught by teachers with vast experience and expertise in the research, which the Teaching Assistants cannot handle.
15. The petitioner has filed reply affidavit pointing out that she did not have any liability to work in the College of Agriculture, Padannakkad since she was transferred out of that college as per Ext.P2 order in the year 1999 itself without any request and therefore the University has already waived the right to insist the continuance of 5 years at Padannakkad. According to her, any shifting from the present station in which she is the Principal Investigator for several projects would affect the projects W.P(c).No.33714/2017 & c/cases 14 seriously. According to her, these projects end with development of new varieties with consequential benefits to the human race in general and the country in particular. It is her further contention that she has applied for 12 patents following the aforesaid projects for which administrative sanction was already issued by the Director of Research.
Common Contentions in the Counter Affidavits
16. In the counter affidavit it is stated that the petitioners have not completed the bonded obligation stipulated in para (i) of the University Orders of their appointment and that the redressal of the grievances of the students at Padannakadu is more important than personal issues and that it is to streamline the academic programmes at the College at Padannakadu, transfer was necessitated in the light of the student unrest as well as the directions of the Chancellor, the Minister based on the repeated representations of the SFI leader Sreehari, in view of the acute shortage of teachers.
17. It is stated that there is acute shortage of teaching staff. Apart from that they have produced Exts.R1/R1(a) to R8/R1(h) documents based on which the impugned transfer orders were issued. Ext.R1/R1(a) is a letter dt.8.9.17 of the Associate Dean informing the Registrar that Dr.T.K.Bridgit, W.P(c).No.33714/2017 & c/cases 15 Professor and Head of Department of Agronomy has informed that it will be extremely difficult to offer courses to the P.G students for the academic year 2017-18 without a minimum of 3 permanent teachers. It was pointed out that 2 teachers were deputed last time for handling classes and that in the ensuing semesters there are 4 post graduate and 6 under graduate courses; the teaching assistants cannot handle post graduate classes. With the 2017 admissions, the number of courses to be offered by the department will come to 9 to 10 (3 U.G courses plus 3 or 4 P.G courses); she is presently guiding 2 students whose field works have already started and therefore guiding 3 more students is practically impossible; majority of the courses are having practicals; Stating that the problem of shortage of teaching faculty is not resolved even after repeated requests to the University, which adversely affects the quality of teaching, to the prejudice of the students, she requested to post at least 2 teachers in the department of Agronomy. List of courses available for handling by the visiting teachers were as given below:
"PG Programme
1. Agron.501 - Modern concepts in crop production (3+0)
2. Agron.502 - Principles and practices of soil fertility and nutrient management (2+1)
3. Agron.503 - Principles and practices of weed management (2+1)
4. Agron.504 - Principles and practices of water management (2+1) W.P(c).No.33714/2017 & c/cases 16 UG courses
1. Agron.1101 - Fundamentals of Agronomy (2+1)
2. Agron.1102 - Agricultural Heritage (1+0)
3. Agromet.1101 - Introductory Agro Meteorology and Climate Change
4. Agron.2105 - Field Crops 1 (2+1)
5. Agron.3`08 - Cropping pattern and farming system (1+1)."
18. Ext.R2/R1(b) is a memorandum submitted by Sri N.Sreehari, Secretary of SFI Unit, College of Agriculture, Padannakkad to the Registrar pointing out the acute shortage of teaching faculty in the College. His complaint is that: there are only about 10 permanent teachers as against the required 65; at least 20 permanent teachers are required emergently, as the regular process of recruitment initiated by the University is likely to take time; appropriate action is necessary discontinuing the discriminatory attitude towards the College of Agriculture, Padannakkad, failing which the students would be compelled to resort to indefinite strike. Ext.R3/R1(c) is also a letter of Sri. Sreehari, addressed to the Chief Minister pointing out the shortage of teachers in the College complaining inaction in solving the problem, even after assurances. He complained that the students as well as the College of Agriculture, Padannakad were totally neglected and are subjected to discriminatory treatment. He stated that about 10 teachers were deputed for undergoing Ph.D and even the teachers who are interested in W.P(c).No.33714/2017 & c/cases 17 working at Padannakkad are transferred to far off place. Ext.R4/R1(d) is his letter to the Vice Chancellor on the very same issue informing that the students will have to resort to strike in case the problem is not solved immediately. Ext.R5/R1(e) is a report of the Registrar with respect to the queries/clarifications sought in respect of the situation in the college with respect to the complaints on the shortage of teachers. The registrar informed that as per order dated 27.9.2017 [Ext.R8/R1(h)] all the 10 teachers who completed their study leave and 4 teachers who are working in other centres of the University were directed to take classes in the College at Padannakad. It was also informed that the University has, as per notification dated 03.03.2016 initiated proceedings for fresh selection of Assistant Professors and steps are afoot for publication of rank list and the vacancies in the teaching posts in the College would be filled up on its finalisation. Ext.R6/R1(f) is the letter dated 07.10.2017 addressed to the Vice Chancellor of the University from the Secretary to Governor calling for a report on the complaint of Sri. Sreehari informing that the students will resort to protests and strike in case the problem of shortage of teaching faculties in the College was not solved. Ext.R7/R1(g) is a letter dated 20.10.2017, from the Minister for Agriculture directing to take emergent steps on the issue, W.P(c).No.33714/2017 & c/cases 18 forwarding the complaint he received from the SFI leader Sreehari. It is further stated that Ext.R8/R1(h) order was issued on 27.9.2017 directing some of the teachers to render their services at the College of Agriculture, Padannakkad during the first semester of the academic year 2017-18 without affecting their normal duties. It is the case of the respondents that the order of transfer was issued in the light of the tense situation prevailing in the College of Agriculture, Padannakkad due to students' unrest as informed by the Associate Dean based on which the Chancellor as well as the Pro-Chancellor of the University had directed to take immediate action to solve the problem. The students of the college started protests and strikes alleging inaction on the part of the University in providing sufficient teaching faculties in the college.
19. The contention of the 1st respondent is that the obligation of the petitioners to work at the College of Agriculture, Padannakkad does not cease to exist on their promotions. They have executed an agreement with the University as provided in their order of appointment. As per the provisions contained in the order, they have to work for 5 years in the station/college to which they were appointed. They were transferred from the College at Padannakkad before completing the said 5 year period. The W.P(c).No.33714/2017 & c/cases 19 present transfer is ordered in public interest on account of acute scarcity of teaching staff in Padannakkad and on the basis of complaints from various corners relating to the scarcity of staff, and on instructions from the Chancellor, Pro-Chancellor, Vice Chancellor, etc. to solve the problems faced by the College on account of the shortage of staff. Dr. P.R.Suresh is in charge of ADR and head of the Regional Agricultural Research Station, Pilicode. According to the 1st respondent, promotion of teachers/scientists in the University are not vacancy based but personal in nature; a Professor can be posted in the post of Associate Professor also by upgrading the post; this will automatically get downgraded on his retirement; there are teaching posts in the College of Agriculture, Padannakkad to which the petitioner can be accommodated by upgrading the post to that of a Professor.
20. I heard learned Senior Counsel Sri. O.V.Radhakrishnan and Sri. Johnson Gomez, the learned counsel for the petitioners and Sri.Robson Paul, the learned Standing Counsel for the respondents. The Senior Counsel relied on the judgment of the Apex Court in Dr. T.P.Senkumar IPS v. Union of India [2017 (2) KLT 453 (SC)], V.Jagannadha Rao v. State of A.P [(2001) 10 SCC 401], B.Varadha Rao v. State of Karnataka [(1986) 4 SCC 131], etc. and argued that the orders of transfer are liable to be set W.P(c).No.33714/2017 & c/cases 20 aside.
21. On consideration of the rival contentions on either side, it is clear that there is acute shortage of teaching faculties in the College of Agriculture, Padannakad. It is also seen that the order transferring the petitioners issued on 21.10.2017, was pursuant to the instructions the respondents received from the Chancellor and the Minister for Agriculture to take steps to solve the problems faced by the College. It would appear that the order of transfer is issued in public interest and in such circumstances this Court will not be justified in interfering with such a transfer, provided no other reason is stated in the order of transfer. But when the transfer is ordered stating a reason, for choosing the petitioners, and that reason is under dispute it is necessary to examine the correctness of that reason.
22. The contention of the petitioners is that the selected candidates means the candidates selected for appointment as Assistant Professor and therefore the period of 5 years referred to in this clause is 5 years in the post of Assistant Professor, i.e, the post to which they were appointed. The petitioners submit that when the University itself , on its own transferred the petitioners to Vellayani without any request from him, even before they W.P(c).No.33714/2017 & c/cases 21 completed the period of 5 years, at a time when they were willing to continue in the same station for a period of 5 years, the respondents cannot enforce any bonded obligation and transfer the petitioner under the guise of such obligations. According to them, once they were promoted from the post of Assistant Professor and were working as Professor, they are not liable to complete the 5 years which was required in the post of Assistant Professor and they do not have any more obligation to work for 5 years, as directed in the order of appointment.
23. On the other hand, the contention of the learned Standing Counsel for the respondents is that the selected candidate only means that the candidate who is selected and the obligation is to work in the station/college to which he is appointed. That obligation continues during the entire tenure of the service of the selected teachers and the condition does not restrict the obligation to work for 5 years only in the post of Assistant Professor and it also does not say that once he is transferred that obligation will cease to exist.
24. In the light of the contentions raised on either side, it has to be examined whether the liability to work for 5 years provided in clause 4 of the order of appointment was confined to the period when the petitioners W.P(c).No.33714/2017 & c/cases 22 worked as Assistant Professors and whether the obligation ceased on promotion of the petitioners as Professors.
25. Clause 4 of the order of appointment reads as follows:
"(4)(i) :The selected candidate will work in the station / institution to which he/she is appointed for a minimum period of five years or till the termination of the scheme/project. Requests for transfer will not be entertained under any circumstances.
(ii) University would be free to make interdepartmental/inter unit transfer within a college/research station as per requirements."
26. On a combined reading of the aforesaid provision, I am of the view that the intention of the University should have been to retain the fresh recruit in the station/institution for the first five years as is insisted in district wise recruitments. The minimum period prescribed should have been a continuous period of five years immediately after the appointment, unless otherwise provided. The words and expressions "Minimum period of five years" are followed by the expressions "or till the termination or project/scheme". Therefore, what was envisaged should have been a continuous period of 5 years. After insisting the minimum service it further proceeds providing that requests for transfer will not be entertained. Such a request referred to should have been during that 5 year period. There cannot be a prohibition for a request for transfer for ever if one was not allowed to continue in the first college/station for the first five year as in the present W.P(c).No.33714/2017 & c/cases 23 case.
27. Moreover, while Clause 4(i) provides that selected candidate has to work in the station to which he is appointed for a minimum period of 5 years, clause (ii) provides that University is free to make inter- departmental/inter unit transfer within a college/research station as per requirement. That would mean that the University should not have transferred the employees outside the college during that five year period. In all these cases University has granted transfer to the petitioners without any request from them. Once the University themselves thought it fit not to stick on the terms in the order of appointment and transferred the petitioners to other colleges far away from the college to which they were appointed, it is not fair to ask them to work in the colleges in which they were first appointed, years after the transfer.
28. I will also look into the conditions stipulated in the orders of appointment issued to the petitioners, with reference to the agreement, executed by the petitioners. The 1st respondent has filed an I.A..No.18119/2017 in W.P.(C) No. 33715/2017, producing the agreement executed by the petitioner therein. Before going into that agreement it is necessary to have a look at the order of appointment of the petitioner in that W.P(c).No.33714/2017 & c/cases 24 case-Dr. Thomas George. The order of his appointment is Ext.P2 order dated 23.01.1996. By Ext.P2, Registrar of the University, by order of Vice Chancellor, appointed Sri. Thomas George as Assistant Professor in Soil Science and Agricultural Chemistry, in the Faculty of Agriculture, in the University, on the basis of the recommendation of the selection committee and as approved by the executive Committee, it is stated that based on the recommendation of the selection committee and as approved by the executive committee. He was posted at College of Agriculture, Nileswar. The appointment was stated to be on the following conditions:
"1. The appointment would be on contract basis as required under Section 42 of the KAU Act, 1971. He shall execute necessary agreement in stamp paper worth Rs.60/- as provided in the section within one month from the date of assumption of charge of the post (copy of the agreement produced);
2. The period of appointment of the above officer would be for a period till he attains the age of superannuation as laid down in Section 42(5) of the KAU Act or till the termination of the post whichever is earlier;
3. For all purposes he will be treated as employee of the Kerala Agricultural University as part of its approved cadre and will be subject to the administrative control of the University;
4. (i) :The selected candidate will work in the station /institution to which he/she is appointed for a minimum period of five years or till the termination of the scheme/project. Requests for transfer will not be entertained under any circumstances.
(ii) University would be free to make interdepartmental/inter unit transfer within a college/research station as per requirements.
He will assume charge of the post ------xxxxxx--
W.P(c).No.33714/2017 & c/cases 25 The appointments of the teachers are made in accordance with Section 42 of the KAU Act,1971, which reads as follows:
42. Appointment of teachers, officers and staff:- (1) Subject to the provisions of this Act and the Statutes, the members of the staff of the University shall be appointed by the Executive Committee.
(2) a) Except in cases otherwise provided for in this Act and the Statutes, every salaried officer and teacher of the University shall be appointed under a written contract.
b) The contract shall be lodged with the Vice-Chancellor and a copy thereof shall be furnished for the officer or teacher concerned.
c) The contract shall not be inconsistent with the provisions of this Act and the Statutes for the time being in force in relation to conditions of service. (3) The procedure for selection of officers, teachers and other employees of the University shall unless otherwise provided for in this Act, be such as may be prescribed.
[(4) The normal retirement age of the Deans of Faculties, the Director of Research, the Director of Extension, the Director of Veterinary Research and Education, 2[the Director of Post Graduate Studies, the Professors and the other categories of teachers of the University] shall be sixty years], [(5) The normal retirement age of officers of the University other than the Chancellor, the Pro-Chancellor, the Vice-Chancellor and those specified in sub-section (4) shall be fifty five years]"
The terms of the agreement, as seen from Ext.R1(i) produced along with I.A..No.18119/2017 are to the effect that :
"xxxx xxxx xxxx xxxxx WHEREAS the University has in order No. GA/C3/45962/95, dated, 23-01-1996, Vellanikkara (hereinafter called the said order) appointed the officer as Asst. Professor on the basis of the decision of the Executive Committee of the University;
AND WHEREAS the officer has agreed to serve the University on the terms and conditions of service as hereinafter contained and those contained in the said order a copy of which is attached hereto and shall form the part of this Agreement as if incorporated herein; xxxx xxxx xxxx"
The officer shall submit himself to the orders of the University and shall loyally and faithfully discharge his duties in accordance with the provisions W.P(c).No.33714/2017 & c/cases 26 of the Act, Statutes, Rules, Ordinances or regulations or other orders issued from time to time by the authorities. He shall comply with the requests or directions from other competent authorities and shall whenever required to proceed to any part of India as directed by the competent authorities and perform the duties assigned to him.; period of appointment would be till he attains the age of superannuation under Section 42 (5) of the Act or till termination of the post whichever is earlier, etc.
29. At any rate, the obligation to work for 5 year period to work in the college in which appointed could have been only the 5 years immediately succeeding the first appointment on the selection for appointment as Assistant Professor and it cannot by no stretch of imagination go beyond one's promotion from that post after the 5 year period. The respondents themselves violated or waived the said condition by transferring them to other colleges in other stations when the freedom of the respondents was restricted to effect inter-departmental or inter-unit transfers within the college, by way of sub clause (ii) of clause 4 of the order of appointment.
30. Otherwise the respondents could have, when they transferred the petitioners before completion of the 5 year period, fixed such conditions W.P(c).No.33714/2017 & c/cases 27 in the order of transfer reminding them the liability to work for the balance period. But the respondents have not taken any action till the order was issued on 21.10.2017, to act upon the provisions in clause 4 (i) and to get their services for the balance period . Therefore, one can only conclude that they waived the conditions, at the time when they granted transfer to the petitioners in the years 1998, 1999, etc.
31. Even though the agreement does not contain any specific provision relating to the 5 year period in a station or college, the order of appointment has become part of the agreement. Therefore clause 4(i) is a part of the agreement executed by the petitioner. But the condition in when sub clause (i) of clause 4 can only be interpreted on a combined reading of clause 4. In view of the prohibition of requests for transfer within the 5 year period specifying the freedom of the University to effect transfers within the College alone during the said period, I am of the view that the 5 year period intended was a continuous period of 5 years unless provided otherwise when transfers of petitioners were effected without their requests.
32. The contention raised by the petitioners regarding the transfer of petitioners while they are already promoted as Professors also requires consideration. Though the petitioners' promotions were on career W.P(c).No.33714/2017 & c/cases 28 advancement, the posts occupied by them were upgraded while granting them promotion. In these cases the University chose to transfer them when admittedly there are no posts of Professors. The contention of the respondent University that the posts available in the college will be upgraded after they join duty cannot be accepted. Their postings are not seen made along with their posts. The respondents have not stated that the posts in the College at Padannakkad are upgraded for accommodating them.
33. In the present case there is acute scarcity of teachers in the College at Padannakad. Nothing prevents the University in availing the services of teachers in that College, provided orders are issued in accordance with law. Norms of transfer itself provides for transfers in public interest. The terms of agreement also makes the appointees liable to work anywhere on directions of the University, But such directions also should be in accordance with law.
In the above circumstances, the orders of transfer issued on 21.10.2017 (Ext.P3 in W.P.(C).No.33714/2017, Ext.P4 in W.P.(C).No. 337154/2017 and Ext.P5 in W.P.(C).No.34355/2017) to the extent it relates to petitioners are set aside. However, this will not prevent the respondent University from issuing fresh orders of transfer and from taking appropriate W.P(c).No.33714/2017 & c/cases 29 steps to avail the services of Professors, including the petitioners, in accordance with law.
These writ petitions are allowed accordingly.
(P.V.ASHA, JUDGE) rtr/