Kerala High Court
Dr. Meera V. Menon vs Kerala Agricultural University on 12 October, 2020
Equivalent citations: AIRONLINE 2020 KER 705
Author: Amit Rawal
Bench: Amit Rawal
WP(C).No.14722 OF 2020(M) 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942
WP(C).No.14722 OF 2020(M)
PETITIONER/S:
DR. MEERA V. MENON
AGED 57 YEARS
W/O. K.C RAGHAVAN, PROFESSOR, DEPARTMENT OF
AGRONOMY, COLLEGE OF HORTICULTURE, VELLANIKKARA,
VELLANIKKARA P.O, THRISSUR DISTRICT, PIN 680 656
RESIDING AT THEJASWINI, NELLANKARA, NETTISSERY P.O,
THRISSUR DISTRICT PIN 680 651 (UNDER ORDER OF
TRANSFER TO PADANNAKKAD, KASRAGOD DISTRICT.
BY ADVS.
SRI.BABU JOSEPH KURUVATHAZHA
SRI.M.G.SREEJITH
RESPONDENT/S:
1 KERALA AGRICULTURAL UNIVERSITY
KAU P.O, VELLANIKKARA, THRISSUR DISTRICT,
PIN 680 656, REPRESENTED BY ITS REGISTRAR.
2 VICE CHANCELLOR,
KERALA AGRICULTURAL UNIVERSITY, KAU P.O,
VELLANIKKARA, THRISSUR DISTRICT, PIN 680 656
3 EXECUTIVE COMMITTEE OF THE KERALA AGRICULTURAL
UNIVERISITY,
KAU P.O, VELLANIKKARA, THRISSUR DISTRICT, PIN 680
656 REPRESENTED BY ITS CHAIRMAN, THE VICE
CHANCELLOR OF THE UNIVERSITY.
R3 BY ADV. SMT.SURYA BINOY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23-09-2020, THE COURT ON 12-10-2020 DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 12th day of October 2020 The petitioner through the instant writ petition has challenged transfer order, Ext.P6 dated 3.7.2020 issued by the 1st respondent, Kerala Agricultural University, transferring her from Vellanikkara to Padannakkad.
2. In support of the aforementioned prayer, the petitioner averred as under:
On 4th April 1998, the petitioner joined in service under the respondents as Lecturer at the College of Agriculture, Padannakkad in Kasaragod. The native place of the petitioner is Vellanikkara, Thrissur. Ext.P1 guidelines pertain to the transfers and postings of Teachers and Scientific Staff under the 1st respondent. Petitioner relied upon clause 3, 17 and 24(d) of guidelines by submitting that the transfer is at the fag end of her career as she would be demitting office in November, 2022, thus, is an act of the whims and fancies and arbitrary. Many of her juniors in the stream have been left out. There was no occasion for transferring the petitioner except on receipt of the communication dated 1st of July 2020, Ext.R1(i), whereby the Director and Project WP(C).No.14722 OF 2020(M) 3 Coordinator, All India Coordinator Research Project on Weed Management, Jabalpur brought to the notice of Vice Chancellor, Kerala Agricultural University that the centre's research and extension activities was very casual, particularly for the last two years no significant technology/technique/practices were developed for inclusion in the package of practices for Kerala State and in case such practice continues, it would adversely affect the Weed Management project in the University and also, letter Ext.R1(g) dated 23.6.2020 whereby, Associate Dean, College of Agriculture intimated Registrar, Kerala Agricultural University, Vellanikkara, Thrissur for appointment of Assistant Professor /Senior faculty member(contractual) in different disciplines including Agronomy, relevant for the instant case, as the petitioner belongs to such stream, amounts to not only reduction in rank but a punitive punishment. Not only this, even the place of transfer to Padannakkad at Kasaragod District is at a distance of 250 km away from the home station of the petitioner, owing to the vide spread of COVID Pandemic, it WP(C).No.14722 OF 2020(M) 4 is not advisable to transfer in the absence of public interest or administrative exigencies. Attention of this Court was also drawn to the order Ext.R1(i), whereby subsequent to the transfer of the petitioner, her post was upgraded to Professor, which was being held before transfer.
3. Learned counsel appearing on behalf of the petitioner submitted that the communication dated 23rd June 2020, Ext.R1(g) nowhere reflects for appointment of "Associate" or "Professor" rather its contents would reveal with regard to the "Assistant Professor" or "Senior Faculty member" in the disciplines referred to therein. Even middle level faculty members could have been transferred and placed instead of petitioner,warranting action fallacious and malafide, glaringly evident from reply of the Registrar, where the plea of malafide has been attempted to be countered by not impleading the respondent or affected party in personal capacity. Even the contents of para 10 would reveal that the transfer is punitive, which could not have been ordered without following the due procedure of law. Though the petitioner earlier preferred a writ petition WP(C).No.14722 OF 2020(M) 5 W.P.(C) No.14019 of 2020, which was permitted to withdrawn with a liberty to file fresh. It is in this back ground, the present writ petition has been filed. The petitioner has been discharging duties as evidenced from the contents of letter dated 17th August 2020 and 27th August 2020 produced during the course of the hearing. The aforementioned documents have been handed over and are ordered to be placed on record to eradicate the defence of the respondent that the petitioner had already been relieved before passing of the interim order. The petitioner had even attempted to file an appeal to the Executive committee against the impugned order but the same has also not been entertained. It was submitted that the petitioner joined on the Weed Management course only in 21st November 2018 as evidenced from Ext.P9.
4. On the other hand, Ms. Surya Binoy, learned Standing Counsel emphatically contested the matter by raising numerous objections qua the project having been effected and place of posting was on administrative ground. To buttress the aforementioned contention, WP(C).No.14722 OF 2020(M) 6 attention of this Court has been drawn to paragraphs 5, 8, 9, 10 and 11 of the counter affidavit. The sum and substance of the counter, reveals that the petitioner is a Senior faculty in Agronomy and left with more than two years of service. It is only in view of the receipt of the letter from Associate Dean, College of Agricultural University, Padannakkad dated 23rd June 2020, it became necessary that a Senior faculty to be posted in the College to address the dearth of faculty there at. Very serious concerns regarding functioning of Dean management under petitioner's leadership were raised by the Director of Weed Research in the letter dated 1st July 2020 and continuance of the status quo would adversely affect the Weed Management project. It is imperative for the University to initiate remedial measures / action to address the concern by effecting a change of leadership in the project by signing into another senior scientist, such circumstances, resulted into transfer of the petitioner. The aforementioned decision is an administrative discretion cannot be solely based on length of outstation service or remaining service. The WP(C).No.14722 OF 2020(M) 7 petitioner at the time of posting at Vellanikkara was the Editor of the Journal of Tropical Agriculture and the transfer would not be effected as there is provision of online journal of Tropical Agriculture, which is a half yearly publication having editorial team. Owing to COVID-19, the employees recently transferred during the General Transfer were permitted to assume charges of the new posts in remote areas, working from home, provided they are eligible, as per the guidelines, issued by the Government. There is no impediment for the petitioner to continue to work-from-home till COVID restrictions remain in force. The remedy of a representation to the Executive Committee was withheld as it was not treated to be an appealable order. The contention that, the petitioner has already completed three years of outstation service and therefore cannot be transferred out is devoid of any merit. There was no departure from transfer norms applicable to teaching staff of the 1st respondent University and urged this Court for dismissal of the writ petition.
5. I have heard the learned counsel for the parties WP(C).No.14722 OF 2020(M) 8 and appraised the paper book. It would be expedient to refer the relevant clauses of the guidelines pertaining to posting and transfer of employees belonging to Kerala Agricultural University, emphatically relied upon by the learned counsel representing parties.
1.3. "The options for transfer of the newly appointed teachers will be entertained only after completing their tenure in the first posted unit/station (excluding leave period, if any) (see clause 4). They will have to give their option within three months of completing the tenure as specified in 1 above. All new Assistant Professors appointed for KVK/EAPs/non plan posts must compulsorily work in remote stations for five years. The Assistant Professors who have not completed their tenure as stated above are liable to be transferred to remote stations according to their options.
1.4. Senior Scientists /Teachers posted at remote stations like Padannakad, Ambalavayal, Pampadumpara, Pilicode etc. (through transfer) are eligible for transfer after one year. It will be considered as two year outstation service. Persons who have completed two years of outstation service will become eligible to apply for transfer to their preferred stations. 1.5. Any teacher who has completed three years of tenure in the particular Station/Unit is liable to be transferred to any other station to facilitate transfer norms. Transfers will be made between cadre to cadre posts only.
17. The teachers will be given posting for two years prior to superannuation in the preferred stations as far as possible.
24. For the purpose of calculating out station service index (non preferred station service index), the following criteria will be followed. a. One year service at a Station up to 250 WP(C).No.14722 OF 2020(M) 9 km. Away from the first preferred station will be treated as one year outstation service index.
b. One year service at a station away by 250 km to 350 km will be treated as outstation service index of 1.5 c. One year service at a station which is away by 351 km and above will be treated as outstation service index of 2.
d. One year service in any of the remote stations like Pampadumpara, Ambalavayal, Panniyoor, Padannakad and Anakkayam will be treated as equivalent to one year service at a place which is away by 351 km and above 91 year service =2)
26. Notwithstanding anything contained in the norms, the University can make transfers on public interest. However, the public interest may be specified. "
6. It may also be necessary to refer the contents of letter dated 23rd of June 2020, where the Associate Dean while writing to the Registrar, Kerala Agricultural University on the subject of Posting of Assistant Professor (Contract) at Padannakad requested for appointing "Assistant Professor"/"Senior faculty member". The relevant portions of the letter are as under:
"Sub: COA, Padannakkad- Posting of Assistant Professor (Contract) - Reg.
Ref: GA/C3/19957/2018, dated 3.12.2018 As per the above order, sanction was accorded to engage of 29 Assistant Professor (Contract) in various disciplines of this college against the vacant faculty positions. Subsequently 29 new Assistant WP(C).No.14722 OF 2020(M) 10 Professors (Contract) joined and most of the candidates appointed have discontinued. Consequent to increase in number of UG seats, theory classes have two batches and practical classes have four batches. Hence we are in need of more faculty members in disciplines which offer st nd rd courses in 1 , 2 and 3 year. The number of permanent faculty now working in this college is only 31 which include Associate Director (CM) and Associate Dean I/c. Over and above the teaching load at college, the faculty here has to extent support to Department of Agriculture and other agencies by way of experts for classes and diagnose visits and other technical supports of northern region, since RARS Pilicode also have skeletal staff strength. Hence action may be taken to appoint Assistant Professor/Senior faculty member in the following disciplines against the sanctioned posts lying vacant (35 Nos.) in various departments.
Sl.No. Disciplines having Nos. Justification PG Programme
1. Agronomy 3 One for instructional Farm and two for department.
ICAR accreditation PRT
recommended enhanced
faculty strength
x xx xxxxxx
x xx xxxxxx
x xx xxxxxx
It is also requested that senior level/middle level faculty members may be placed in the disciplines of Agronomy, Plant Breeding, Horticulture and Pathology."
7. Contents of letter dated 1.7.2020, Ext.R1(i) also reflects that the work of Weed management project of WP(C).No.14722 OF 2020(M) 11 Kerala Agricultural University was affected owing to the delay. This fact has not been denied by either of the parties. Learned counsel for the petitioner emphasised that the petitioner under the aforementioned project was only posted vide order dated 21st November 2018, Ext.P9. As a fallout, sword struck on petitioners head, by the Vice Chancellor as reflected from impugned order Ext.P6. The relevant portion of Ext.P6 reads as follows:
"As per the letter read(2) above, the Associate Dean, College of Agriculture, Padannakkad has requested to post senior faculty in the college for the smooth conduct of the academic and research activities.
In the circumstances, the following orders are issued with immediate effect.
1.1. Dr. Meera V. Menon, Professor (Agronomy) & P1, AICRP on Weed Management, College of Horticulture, Vellanikkara is transferred and posted against the existing vacancy of Associate Professor (Agronomy) at College of Agriculture, Padannakkad.
1.2. Dr. Meera V.Menon will hand over the charge of the post of the Head of the Department of Agronomy and PI, AICRP on weed management College of Horticulture, Vellanikkara to Dr. Prameela P. Professor (Agronomy) 1.3. Connected RTCs will be forwarded to all concerned.
1.4. The Associate Dean, College of Horticulture, Vellanikkara is directed to relieve Dr. Meera V. Menon with immediate effect."WP(C).No.14722 OF 2020(M) 12
8. On perusal of Ext.P6, it is evident that there is a reference of letter dated 23.6.2020, Ext.R1(g). Thus the transfer order is not a general order but on the basis of a request purportedly made by Dean. This Court is to examine whether for filling up the post of Assistant Professor on contract / Senior faculty can be construed or pertain to person of rank of Professor, also head of department of Agronomy or not. On a plain and simple language of contents of letter dated 23rd June 2020, extracted above, it leads to irresistible conclusion that Senior faculty member could not be correlated to the rank of Professor held by the petitioner. In other words, a person holding of a post of Professor would be above the Senior faculty member, which could relate to an Associate Professor. Realizing that the Agricultural University was in remiss while passing the impugned order, posting the petitioner against the existing vacancy of Associate Professor as it may not invite the wrath of litigation in wisdom vide communication dated 17th July 2020, upgraded her post. Cumulative reading of the letter dated WP(C).No.14722 OF 2020(M) 13 23rd June 2020 and 1st of July 2020 in my view leads to only one conclusion that the transfer of the petitioner is punitive in nature. The question further arise is whether the pleadings are bereft of any malafide by arraying any party in personal capacity. Malafidies sometimes are not attributed as person has to remain in the same department. It is trite law that transfer cannot be interfered under Article 226 of the constitution of India, as it is mostly on account of administrative exigencies or public interest. I cannot remain oblivious of the fact that the counter in the present writ petition do not support the case of the University being the case of general transfer but a case of solitary transfer of the petitioner. It is also to be kept in mind that the petitioner, concededly, is about to retire on November 2022. Generally, at the fag end of the career of an employee, it is desirable and expected from the concerned State/department/employer not to disturb a person, who is already settled and expecting to settle after his superannuation. The counter do not specify the non availability of any senior faculty other than the petitioner fit WP(C).No.14722 OF 2020(M) 14 for posting at Padannakkad.
During the course of hearing, learned counsel emphatically raised the objection qua maintainability of the writ petition in the absence of any pleadings of malafide or punitive in nature as the University in support of the allegations made in paragraph 10 would have taken steps to hold disciplinary enquiry but submitted that it could have taken more time. I am of the view that such a contention definitely attracts a punitive action on the part of the University in transferring the petitioner knowing that she would be retiring on November 2022. With the aforementioned findings, it is irresistibly concluded that it is not a general transfer order but an order in punitive nature. The impugned order Ext.P6 is quashed.
Accordingly, the writ petition is allowed.
Sd/-
AMIT RAWAL
sab JUDGE
WP(C).No.14722 OF 2020(M) 15
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RELEVANT PORTION OF THE
GUIDELINES FOR TRANSFERS AND POSTINGS OF TEACHERS AND SCIENTIFIC STAFF UNDER THE 1ST RESPONDENT.
EXHIBIT P2 TRUE PHOTOCOPY OF THE MEDICAL CERTIFICATE DATED 8-7-2020 ISSUED BY DR. SUNITHA V. NARAYANAN, PERTAINING TO THE ILLNESS OF THE PETITIONER. EXHIBIT P3 TRUE P[HOTOCOPY OF THE ACADEMIC PROGRAMME FOR PF/PH.D DATED 17-10-2019 ISSUED BY THE ASSOCIATE DEAN, COLLEGE OF HORTICULTURE UNDER THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE RELEVANT PORTION OF THE ORDER DATED 15-7-2017 ISSUED BY THE PROFESSOR AND HEAD DEPARTMENT OF AGRONOMY EXHIBIT P5 TRUE COPY OF THE RELEVANT PORTION OF THE ACADEMIC PROGRAMME OF PG AND PH.D COURSES TO BE ATTENDED BY THE PETITIONER.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 3-7-2020 ISSUED BY THE 1ST RESPONDENT, TRANSFERRING THE PETITIONER FROM VELLANIKKARA TO PADANNAKKAD.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION 7-7-2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 16-7-2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE ORDER NO.R3/70492/00 DATED 21.11.2018 ISSUED BY THE DIRECTOR OF RESEARCH, KERALA AGRICULTURE UNIVERSITY.
EXHIBIT P10 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 24/08/2020 IN WPC.NO.16738/2020.