Dr. G. Rajasekharan Nair v State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 WP(C).No. 4899 of 2011(J) ------------------------PETITIONER(S): --------------DR.G.RAJASEKHARAN NAIR, PRINCIPAL, GOVERNMENT LAW COLLEGE, ERNAKULAM. BY ADV. SRI.M.BALAGOVINDAN SRI.T.K.ANANDA PADMANABHAN RESPONDENT(S): --------------1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM-695 001. 2. SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001. 3. UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, CALICUT-673 001. 4. VICE CHANCELLOR, CALICUT UNIVERSITY, CALICUT-673 001. 5. SMT.USHA, PRINCIPAL, GOVERNMENT LAW COLLEGE, THIRUVANANTHAPURAM-695 034. ADV. SRI.NAVEEN.T FOR R5 ADV. SRI P.C.SASIDHARAN FOR R3 & R4 SENIOR GOVERNMENT PLEADER SHRI T.T.MUHAMOOD FOR R1-R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(C).No. 4899 of 2011-J ## **APPENDIX** ## **PETITIONER'S EXTS:** EXT.P1 TRUE COPY OF THE COMMUNICATION ISSUED BY THE PRINCIPAL GOVT. LAW COLLEGE THRISSUR EXT.P2 TRUE COPY OF THE COMPLAINT DATED 26/03/2009 EXT.P3 TRUE COPY OF THE COMMUNICATION OF CONTROLLER OF EXAMINATION TO THE PETITIONER EXT.P4 TRUE COPY OF THE SUGGESTION MADE BY THE PETITIONER ON 30/04/2009 EXT.P5 TRUE COPY OF THE COMMISSION REPORT EXT.P6 TRUE COPY OF THE RECOMMENDATION LETTER OF THE STUDENTS WELFARE DEPARTMENT TO THE UNIVERSITY OF SYNDICATE EXT.P7 TRUE COPY OF THE COMMUNICATION ISSUED BY THE REGISTRAR CALICUT UNIVERSITY. EXT.P8 TRUE COPY of the COMMUNICATION DATED 21/04/2010 ISSUED BY THE 2ND RESPONDENT. EXT.P9 TRUE COPY OF THE EXPLANATION GIVEN BY THE PETITIONER DATED 28/04/2010 EXT.P10 TRUE COPY OF THE GO ISSUED BY THE 2ND RESPONDENT DATED 24/09/2010 EXT.P11 TRUE COPY OF THE JUDGMENT OF THIS COURT IN WPC 31483/2010 EXT.P12 TRUE COPY OF THE ORDER IN GO RT NO.100/2011/H.EDN., TVM, DATED 20/1/2011 ## **RESPONDENTS' EXTS:** EXT.R5(a) TRUE COPY OF THE ORDER DATED 24/05/2008 ISSUED BY THE GOVERNMENT EXT.R5(b) TRUE COPY OF THE ORDER DATED 14/07/2008 ISSUED BY THE GOVERNMENT. WP(C).No. 4899 of 2011-J |EXT.R5(c)|TRUE COPY OF THE JUDGMENT DATED 19/09/2008 IN WPC| |---|---| ||NO.21630/2008 OF THIS COURT| |EXT.R5(d)|TRUE COPY OF THE ORDER DATED 15/05/2009 ISSUED BY THE| ||GOVERNMENT.| |EXT.R5(e)|TRUE COPY OF THE ORDER DATED 23/06/2009 ISSUED BY THE| ||GOVERNMENT.| |EXT.R2(a)|ORDER NO.SW(3)/GC/2009 VOL.1(2) DATED 16/12/2009.| \\TRUE COPY// P.A TO JUDGE ## **`T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.4899/2011-J`** ``` ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 24[th] day of March, 2011 ``` ## **`J U D G M E N T`** ``` Aggrieved by Exts.P10 and P12 orders whereby the petitioner, who is the Principal, is transferred from Government Law College, Thiruvananthapuram to the Government Law College, Ernakulam, this writ petition is filed. ``` ``` 2.The learned counsel for the petitioner submitted that prior to the issuance of Ext.P10 order transferring the petitioner to Ernakulam Law College, he was transferred from Thrissur Government Law College to Thiruvananthapuram Law College in the year 2009. Therefore, the power of transfer has been abused and the entire action taken by the respondents is not fair. It is also submitted that the petitioner is due to retire from service on 31/03/2011 and therefore, as he had only two years to retire, after he obtained a posting at Thiruvananthapuram, he need not have been disturbed. ``` ``` 3.The plea raised by the Government is two fold, viz.; (i) that there was a disciplinary action pending ``` ## W.P.(C). No.4899/2011 ## -:2:- ``` against him and as he is due to retire on 31/03/2011, instead of taking any stringent action against him, the Government thought of transferring the petitioner to Ernakulam in the interest of the student community and; (ii) the transfer from Thrissur to Thiruvananthapuram was only at the time of general transfer and at that time, the further action in respect of disciplinary action was never in contemplation and, in these circumstances, it is pointed out that the power of transfer has not been abused. ``` ``` 4.As pointed out already, the petitioner was the Principal of Government Law College, Thrissur. He had occasion to forward the internal assessment marks in respect of answer paper valuation of 5[th] semester L.L.B (three year) Examination 2008, Drafting, Pleading and Conveyancing. But, according to the petitioner, it was realised subsequently that while forwarding the marks, some discrepancies had occurred. Therefore, immediately, within 5 days, the petitioner forwarded the correct marks awarded by the Lecturer along with the manuscript copy maintained by the teacher as per Ext.P1. It appears that in the meanwhile, a students' ``` W.P.(C). No.4899/2011 ## -:3:- ``` organisation had raised a complaint against the petitioner stating that the marks had been altered purposefully to help certain students. It is pointed out that the complaint itself was generated only after one week of the forwarding of Ext.P1 to the Controller of Examinations. The explanation given by the petitioner was that the mistake occurred due to typographical error only. ``` ``` 5.In spite of the same, the alleged disciplinary action against the petitioner was initiated. In Ext.P10 order the Government after referring to the explanation offered by the petitioner in paragraph (4) stated that pending disciplinary action, the petitioner is transferred and posted as such in Government Law College, Ernakulam with immediate effect in the interest of public, especially, student community. This was challenged in W.P.(C).No.31483/2010 and this Court directed the petitioner to approach the Government again and after the Judgment (Ext.P11) was also rendered, the Government reiterated the stand, in Ext.P12 order. ``` W.P.(C). No.4899/2011 -:4:- ``` 6.The fifth respondent has also filed a counter affidavit justifying her transfer from Government Law College, Ernakulam to Government Law College, Thiruvananthapuram. It is pointed out that even though in the earlier Judgment there was a direction to offer a hearing to the fifth respondent also, that was not done. It is not a case where due to the dispute if any between the petitioner and the fifth respondent that the transfer was ordered. Therefore, I am not going into any of the contentions raised by the fifth respondent in the counter affidavit. ``` ``` 7.The learned counsel for the petitioner relying upon the principles stated in Dr.Sethumadhavanv. State ``` ``` of Kerala and other[ILR 1991 (1) Ker.656] contended ``` ``` that the order lacked fairness in action and is really an abuse of power and, when the power of transfer is abused, this Court can interfere. ``` ``` 8.In the counter affidavit filed by the ``` ``` Government in paragraph Nos.3 and 4 it is mentioned that actually to avoid suspension, the Government thought of transferring the petitioner. It is also stated in paragraph No.5 that the transfer in question ``` W.P.(C). No.4899/2011 -:5:- ``` was effected in public interest, especially, for the sake of student community and as a part of the disciplinary action against the petitioner. It is also mentioned that as the disciplinary action is pending, the authorities of all the Universities in Kerala have been requested to debar the petitioner from examination duties. ``` ``` 9.Evidently, no mala fides could be established in the matter. What is alleged mainly is the abuse of the power of transfer. The question is whether the Government has considered any relevant aspects and has chosen to transfer the petitioner in spite of the fact that he is going to retire on 31/03/2011, so as to cause inconvenience to him, as alleged, by the petitioner. ``` ``` 10.True that going by the decisions of the Apex Court and this Court, the power of transfer cannot be abused and there should be a fairness in action. But, we are concerned with a case where disciplinary action was pending against the petitioner at the relevant point of time. Shri M.Balagovindan, learned counsel for the petitioner submitted that the transfer from ``` W.P.(C). No.4899/2011 -:6:- ``` Government Law College, Thiruvananthapuram to the Government Law College, Ernakulam has nothing to do with the disciplinary action since the issue if at all arose was during his tenure in Government Law College, Thrissur. It is also pointed out that the University concerned is also different as there was nothing concerning M.G. University or the Kerala University. The learned Government Pleader explained that the enquiry against the petitioner was being done at the Government level and, therefore the said contention cannot be accepted. ``` ``` 11.The Government or the administrative authority conferred with the power can always consider various aspects when an action is being thought of, concerning an officer under the service of the Government. Normally, this Court will not be justified in sitting in appeal over the reasons, for a particular decision unless the action is vitiated on various grounds, namely, arbitrariness, unfairness and abuse of power. ``` ``` 12.Here, evidently, a reason has been shown, i.e., the pendency of the disciplinary action. Going by the averments in the counter affidavit to avoid the ``` W.P.(C). No.4899/2011 -:7:- ``` suspension of the petitioner, the Government thought of transferring him in the interest of the student community. What were the compulsions of the Government may not be the matter for this Court to consider. Therefore, even though I find some force in the submission of the learned counsel for the petitioner, this Court will not be justified in substituting the reasons which were considered by the Government at the time of transfer. It cannot be said that the order of transfer is totally vitiated by lack of power or it amounts to gross abuse of power. ``` ``` 13.It is submitted that the petitioner is due to retire from service on 31/03/2011. Therefore, any decision on the issues raised is rather academic also. For all these reasons, it is not necessary to interfere with the order. Hence, the writ petition is dismissed. No costs. ``` ``` Sd/- ``` ## **`(T.R. Ramachandran Nair, Judge.)`** ``` ms ```