Dr. Jenny Rappai v. Sree Sankaracharya University of Sanskrit

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 13TH DAY OF AUGUST 2013/22ND SRAVANA, 1935 WP(C).No. 13954 of 2013 (T) ---------------------------- PETITIONER: - -------------- DR. JENNY RAPPAI ASSOCIATE PROFESSOR IN ENGLISH SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY ERNAKULAM DISTRICT PIN-683 574. BY ADVS.SRI.ALEXANDER THOMAS SRI.P.K.SEBASTIAN RESPONDENTS: ------------------- 1. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT REPRESENTED BY ITS REGISTRAR. KALADY ERNAKULAM DISTRICT, PIN-683 574. ## 2. VICE CHANCELLOR SREE SANKARACHARYA UNIVERSITY OF SANSKRIT KALADY, ERNAKULAM DISTRICT, PIN-683 574 ## 3. N. PRASANTHA KUMAR PROFESSOR IN ENGLISH AND MEMBER OF THE SYNDICATE OF SREE SANKARACHARYA UNIVERSITY OF SANSKRIT KALADY, ERNAKULAM DISTRICT, PIN-683 574. R1,R2 BY ADV. SRI.ARUN B.VARGHESE,SC, SREE SANKARACHARYA UTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1-07-2013, THE COURT ON 13-08-2013 DELIVERED THE FOLLOWING: WP(C).No. 13954 of 2013 (T) ---------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS ----------------------------- EXT.P1 - TRUE COPY OF Ph.D. DEGREE CERTIFICATE OF THE PETITIONER - EXT.P2 - TRUE COPY OF NOTE TO THE CHAIRPERSON, WOMEN'S COMPLAINT COMMITTEE OF THE RESPONDENT UNIVERSITY ISSUED BY THE DEPUTY REGISTRAR DATED 23-6-2011 - EXT.P3 - TRUE COPY OF THE TRANSFER ORDER NO.AD.A2/531/SSUS/2013 DATED 28-5-2013 ISSUED BY THE 1ST RESPONDENT - EXT.P4 - TRUE COPY OF THE SENIORITY LIST OF ENGLISH DEPARTMENT PUBLISHED BY THE RESPONDENT UNIVERSITY ON 16-3-2013 - EXT.P5 - TRUE COPY OF THE APPOINTMENT ORDER OF 3RD RESPONDENT AS REGISTRAR OF THE UNIVERSITY - EXT.P6 - TRUE COPY OF RECONSTITUTION OF WOMEN'S COMPLAINT COMMITTEE BY THE 1ST RESPONDENT DATED 9-4-2013 - EXT.P7 - TRUE COPY OF THE LETTER DATED 30-4-2013 PREFERRED BY THE CHAIRPERSON OF THE WOMEN'S COMPLAINT COMMITTEE BEFORE THE PRO VICE CHANCELLOR DATED 30-4-2013 - EXT.P8: TRUE COPY OF THE MUNUTES OF THE SYNDICATE MEETING OF THE RESPONDENT UNIVERSITY HELD ON 16.4.2013. - EXT.P8(a): TRUE COPY OF THE NOTE TO SYNDICATE THROUGH STANDING COMMITTEE ON STAFF AND FINANCE. - EXT.P9: TRUE COPY OF THE JUDGMENT DT. 28.5.2013 OF THIS HON'BLE COURT IN W.P.(C)NO.1029 OF 2010. - EXT.P10: TRUE COPY OF THE PROCEEDINGS NO.Ad.A2/2150/SSUS/2013 DT. 10-4-2013 OF THE 1ST RESPONDENT. EXT.P11: TRUE COPY OF THE ORDER DT.27.6.2009. EXT.P11(a): TRUE COPY OF THE ORDER DATED 2.11.2009 ISSUED BY R1. EXT.P11(b): TRUE COPY OF THE ORDER DATED 28.6.2011 ISSUED BY R1. EXT.P11(c): TRUE COPY OF THE ORDER DATED 19.7.2011 ISSUED BY R1. EXT.P11(d): TRUE COPY OF THE ORDER DATED 25.9.2010 ISSUED BY R1. EXT.P11(e): TRUE COPY OF THE ORDER DATED 28.1.2011 ISSUED BY R1. EXT.P12: TRUE COPY OF PROCEEDINGS DATED 7.7.2011 ISSUED BY R1. EXT.P12(a): TRUE COPY OF THE PROCEEDINGS DATED 21.4.2012 ISSUED BY R1. WP(C).No. 13954 of 2013 (T) 2 EXT.P12(b): TRUE COPY OF THE PROCEEDINGS DATED 16.2.2013 ISSUED BY R1. EXT.P12(c): TRUE COPY OF THE PROCEEDINGS DATED 11.4.2013 ISSUED BY R1. EXT.P12(d): TRUE COPY OF PANEL OF 5 NAMES FOR 2013-14. EXT.P13: TRUE COPY OF PROVISIONAL TRANSFER ORDER DT. 16.5.2013 ISSUED BY R1. EXT.P14: TRUE COPY OF PETITIONER'S REPRESENTATION DT. 17.4.2007. EXT.P15: TRUE COPY OF SUPPLEMENTARY ORDER SHOWING DATE OF 16.4.2007 ISSUED BY CAMPUS DIRECTOR. EXT.P15(a): TRUE COPY OF ATTENDANCE REGISTER ENDORSEMENT. EXT.P15(b): TRUE COPY OF PETITIONER'S REPRESENTATION DT. 7.6.2007. EXT.P15(c): TRUE COPY OF MEMO DT. 15.9.2007. EXT.P15(d): TRUE COPY OF MEMO DT. 18.6.2011 ISSUED BY R2. EXT.P15(e): TRUE COPY OF PETITIONER'S REPRESENTATION DT. 28.6.2011. EXT.P16: TRUE COPY OF PROCEEDINGS DT. 16.7.2011 ISSUED TO R3 BY R1'S WOMEN'S COMPLAINT COMMITTEE. EXT.P16(a): TRUE COPY OF PROCEEDINGS DT. 23.5.2012 ISSUED BY R1. EXT.P17: TRUE COPY OF WORK LOAD REPORT DT. 19.3.2013 ISSUED BY TIRUR CENTRE. RESPONDENTS' EXHIBITS: ---------------------------- - EXT.R1(a): TRUE COPY OF THE REPORT DATED 25//11 SUBMITTED BY THE HEAD OF THE DEPARTMENT OF ENGLISH BEFORE THE PRO VICE CHANCELLOR. - EXT.R1(b): TRUE COPY OF THE COMPLAINT DATED 9/6/11 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - EXT.R1(c): TRUE COPY OF THE LETTER DATED 13/5/13 ISSUED BY THE LOCAL MLA TO THE 1ST RESPONDENT. - EXT.R1(d): TRUE COPY OF UNIVERSITY ORDER NO.AD.B/2554/2001/SSUS DATED 8/8/2001. EXT.R1(e) TRUE COPY OF THE RELIEVING ORDER DATED 3/6/13. - EXT.R1(f): TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE MEETING HELD ON 13/3/13. WP(C).No. 13954 of 2013 (T) 3 - EXT.R1(g): TRUE COPY OF THE LETTER DATED 23/7/12 ISSUED BY THE CAMPUS DIRECTOR TO THE UNIVERSITY. - EXT.R1(h): TRUE COPY OF THE RELEVANT EXTRACT OF THE REGISTER OF TRANSFER AND POSTINGS. - EXT.R1(i): TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE SYNDICATE MEETING HELD ON 15/6/13. - EXT.R1(j): TRUE COPY OF THE ORDER NO.Ad.A2/2294/SSUS/13 DATED 17.6.2013 ISSUED BY THE 1ST RESPONDENT. // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ---------------------------- W.P.(C)No.13954 of 2013 ---------------------------Dated 13[th] August, 2013 ## **JUDGMENT** The petitioner who is an Associate Professor in the Department of English of the first respondent University at its Main Centre, Kalady filed this writ petition challenging Ext.P3 whereby she was ordered to be transferred to its Regional Centre at Tirur. Ext.P3 is challenged on various grounds. It is contended that Ext.P3 was issued under the influence exerted by the third respondent who got animosity towards the petitioner for filing a complaint against him before the Vice Chancellor of the University alleging an untoward incident. It is stated that the said complaint was then forwarded to the Women's Complaint Committee of the University constituted in terms of the directions of the Hon'ble Apex Court in **Vishaka and Others** v. **State of Rajasthan and Others ((1997) 6 SCC 241)** . It is contended that the third respondent is reluctant to appear before the committee and in fact, he has been evading the said proceedings. During its pendency the third respondent became the Registrar of the University and with an ulterior motive and malafide intention he had inserted influence on the Pro Vice Chancellor who is in charge of the Vice Chancellor to transfer the petitioner and ultimately succeeded in doing so as per Ext.P3, it is WP(C).No.13954/2013 2 submitted. It is the further contention of the petitioner that she is a guide to research scholars and therefore, her transfer to Tirur Centre would adversely affect the prospects of those research scholars. Above all, it is contended that in Tirur Centre there is no sanctioned post of Associate Professor in English and therefore, the very transfer of the petitioner as per Ext.P3 is against a non-existent post and on that sole score the order of transfer is liable to be set aside. Yet another contention of the petitioner is that there is no administrative exigency for transferring the petitioner. According to the petitioner, at the Tirur Centre only MA English is available and whereas, many more courses are available in Kalady Main Centre and therefore, taking into the fact that the petitioner is a Senior most Associate Professor and that the other Senior Associate Professor at the Main Centre viz., the third respondent is presently put-in-charge as the Registrar of the first respondent University the petitioner's service is required more at Kalady Main Centre. 2. An affidavit has been filed by the first respondent. Evidently, the same was sworn in by the third respondent in his capacity as the Professor in charge of Registrar of the first respondent University. In the said affidavit dated 4.6.2013 it is stated that the entire WP(C).No.13954/2013 3 Professors/Teachers of the University are considered as a single unit and each person would be posted at each centre according to the work load and for the smooth functioning of the centre. It is the further contention that in English Department the posts sanctioned/created are at the cadre of Assistant Professor and some of them including the petitioner are subsequently promoted to higher cadres under the Career Advancement Scheme of UGC. It is also stated therein that in the meeting of the Standing Committee on staff held on 13.3.2013 it was resolved to recommend to approve the staff pattern of teachers for implementing the same in teaching department and as per the same the required number of teachers in English at the Tirur Centre is five. Ext.R1(f) is the minutes of the said meeting. It is also stated therein that repeated notifications for appointment of guest lecturers at Tirur Centre have been issued by the Campus Director and going by Ext.R1(g) despite such notifications non-availability of guest lecturers continues. The admission process to new batch is underway at Tirur Centre and therefore, after the admission process there would be two batches of students at Tirur Centre and in such eventuality, it would not be practicable to conduct classes with two Assistant Professors alone. In short, according to the first respondent, it was taking into account such circumstances that the petitioner who is fully qualified and experienced was transferred as per Ext.P3. WP(C).No.13954/2013 4 Subsequently, a counter affidavit has been filed by the first respondent and it was also sworn in by the third respondent in his capacity as the Professor in charge of Registrar of the first respondent University. In the said counter affidavit the allegations levelled against the third respondent have also been attempted to be refuted. It is contended that Ext.R1(b) is the complaint filed by the petitioner against the third respondent and a perusal of the same would reveal that it carries no allegation of any sexual harassment. The further contention therein is that if the petitioner is having any grievance regarding the Women's Complaint Committee in the matter of handling of a written complaint she has to work out her remedies elsewhere and not in this writ petition which carries only a challenge against Ext.P3 transfer order. It is stated therein that all the allegations were raised in the writ petition only with a view to get modified or cancelled Ext.P3 order of transfer. It is also stated therein that the deponent is not the regular appointee to the post of Registrar and he is holding only the charge of the Registrar as a stopgap arrangement. It is further stated therein that Post Graduate Programme in English is offered in the University Main Centre, Kalady and University Centres at Thiruvananthapuram and Tirur. It is further stated in the counter affidavit as follows:- WP(C).No.13954/2013 5 In the Main Centre at Kalady there is one Professor and four other retired Professors and in the University Centre at Thiruvananthapuram there are two Associate Professors and two Assistant Professors. In University Centre, Tirur there are only two Assistant Professors and they are the junior most Assistant Professors in the University. The Parent Teachers Association in Tirur Centre earlier submitted a representation to the local MLA regarding the necessity to have an additional teacher/professor at the Tirur Centre and thereupon Ext.R1(c) request was made by the local MLA. The attempts to get a qualified guest lecturer from the local area turned futile and it was taking into account all such circumstances that the petitioner was transferred as per Ext.P3 and that the transfer was made in the interest of the University. The deponent viz., the third respondent is not the competent officer to transfer the petitioner and it is the Vice Chancellor is the authority competent to transfer the petitioner. Ext.P3 order was issued by the Pro Vice Chancellor who was in charge of the Vice Chancellor and the deponent had only communicated the same. The transfer of the petitioner from the Main Centre at Kalady would not in any way affect the studies at Main Centre as there is no scarcity of getting qualified hands as guest lecturers to the Main Centre whereas to get a qualified experienced hand at Tirur is very difficult. WP(C).No.13954/2013 6 3. Earlier, when the matter came up for admission, this Court passed an interim order on 3.6.2013 to the effect that if the petitioner was not already relieved pursuant to Ext.P3 she shall not be relieved. That order was extended from time to time. In the counter affidavit it is stated that though Ext.R1(e) relieving order was prepared pursuant to Ext.P3, on getting information regarding the said interim order of this Court from the Standing Counsel it was not communicated to the petitioner. I.A.No.8128 of 2013 was then filed seeking to vacate the interim order. Along with the same Exts.R1(i) and (j) were also produced. Ext.R1(i) is a copy of the relevant portion of the minutes of the Syndicate meeting held on 15.6.2013. It would reveal that at the said Syndicate meeting held on 15.6.2013 it was resolved to approve the staff pattern of teachers and to implement the same in the teaching departments from the current academic year. Essentially, Ext.R1(i) was passed for implementing the decisions in Ext.R1(f) as well which is a recommendation of the Standing Committee on staff held on 13.3.2013. Obviously, as per Ext.R1(f), the Standing Committee resolved only to recommend to approve the staff pattern of teachers for implementing the same in teaching departments and Ext.R1(j) is the consequential orders passed based on the Syndicate decision dated 17.6.2013. WP(C).No.13954/2013 7 4. A reply affidavit dated 17.6.2013 has been filed by the petitioner. It is stated therein that the affidavit and counter affidavit filed by the first respondent did not carry any details as to whether there is a sanctioned post of Associate Professor of English in Tirur Centre. It is contended therein that the statement in Ext.R1(f) dated 13.32013 that there are five posts of English teachers in Tirur Centre is misleading and in fact, incorrect and that Ext.P4 issued by the first respondent dated 16.3.2013 would clearly show that there are only eight sanctioned posts of English teachers under the first respondent University and that the said figure represents the teachers in English available at all the centres including the Main Centre. Therefore, the contention that five posts of English teachers are available in Tirur Centre would go contrary to the statement in Ext.P4. It is also stated that Ext.P8 would reveal that in the Syndicate meeting held on 16.4.2013 as per item No.15 it was decided to create four posts of Assistant Professor in English and to seek approval of Government for creation of such posts. It is further stated therein that Ext.P8(a) would reveal that the agenda note prepared was to recommend for creation of three posts of Assistant Professor of English and one post of Associate Professor of English at Tirur Centre. It is the further contention of the petitioner that Ext.P8(a) would reveal WP(C).No.13954/2013 8 that recommendation was to create three posts of Assistant Professor and one post of Associate Professor for English at Tirur and that as per Ext.P8 it was decided only to approve creation of four posts of Assistant Professor of English at Tirur Centre. According to the petitioner, the decision in Ext.P8 at item No.15 would thus clearly establish that the proposal to create one post of Associate Professor of English at Tirur was rejected and it was decided to seek for approval from the Government only for creation of four posts of Assistant Professor in English at Tirur Centre. At any rate, there was no proposal to seek for creation of any post of Associate Professor from the Government. It is also contended therein that the statements in the counter affidavit, Ext.P8 and Ext.P8(a) would belie the contention of the first respondent that no approval is required for creation of posts under the University. In fact, such a contention was raised by the learned Standing Counsel on the earlier posting dates prior to the filing of the affidavit and the counter affidavit. The petitioner has produced Ext.P9 judgment of this Court dated 28.5.2013 in W.P.(C)No.1029 of 2010 to contend that this Court held that in the light of the specific mandate in Section 14(2)(h) of the Sree Sankaracharya University of Sanskrit Act, 1994 (for short `the Act') teaching posts in the first respondent University could be created by the Syndicate only with the prior approval of the State Government. In the WP(C).No.13954/2013 9 light of the said judgment it is further contended that if a regular incumbent is transferred to another post which is not created with prior sanction of the State Government as mandated in Section 14(2)(h) of the Act then the transfer order is _ultra vires_ and unenforceable as it is null and void. Without prejudice to such contentions in the reply affidavit the petitioner endeavoured to establish that the statements made by the first respondent in the additional affidavit regarding the teaching hours and the requirement of teachers are absolutely incorrect and wrong. It is stated that there are about 40 research scholars registered for Ph.D in the English Department of the Main Centre at Kalady and the first respondent University has issued Ext.P11 order dated 27.6.2009 recognising the petitioner as an approved research guide for guiding Ph.D students in English. In continuation with the earlier statement that she is a guide to the research scholars it is stated that in Comparative Literature also she is acting as a guide to 9 Ph.D students. I will deal with the contentions and rival contentions regarding the working hours and the requirement of teaching staff little later, that too, only in case it is necessary to do so. 5. As noticed hereinbefore, the petitioner assails Ext.P3 order of transfer on the ground that it is tainted with malafides and was issued WP(C).No.13954/2013 10 with ulterior motives. While in paragraph 3 of the writ petition the petitioner contends that the third respondent with ulterior motive and malafide intention succeeded in exerting influence on the Pro Vice Chancellor who is in charge of the Vice Chancellor to issue Ext.P3 order of transfer in paragraph 9 it is stated that the third respondent is the competent officer to transfer the petitioner from Main Centre, Kalady. The affidavit and counter affidavit filed on behalf of the first respondent would reveal that in troth, they were filed by the third respondent in his capacity as the Professor in charge of the Registrar of the first respondent University. It is specifically stated therein that the Vice Chancellor is the authority to transfer the petitioner and Ext.P3 itself would reveal that the order was in fact passed by the Pro Vice Chancellor who is in charge of the Vice Chancellor and the Professor in charge of the Registrar issued the orders as sanctioned by the Vice Chancellor. Though the petitioner has taken a contention in paragraph 9 of the writ petition that the third respondent who is holding the charge of Registrar is the competent authority to transfer the petitioner the aforesaid specific contention in the counter affidavit remains unchallenged. In that context, it is also to be noted that the very contention in paragraph 3 of the writ petition itself would show that the contention of the first respondent that Vice Chancellor is the authority competent to transfer WP(C).No.13954/2013 11 the petitioner is the correct position lest the petitioner would not have stated in paragraph 3 that the third respondent with an ulterior motive and malafide intention succeeded in exerting influence on the Vice Chancellor viz., the Pro Vice Chancellor who is in charge of the Vice Chancellor to issue Ext.P3 order. A perusal of Ext.R1(b) also would, prima facie, go to show that the complaint of the petitioner made in Ext.R1(b) is not one specifically raising allegation of sexual harassment against the third respondent. It is stated therein only that the petitioner was subjected to inhuman and gender-discriminatory treatment by the third respondent. Since that is not the subject matter of this writ petition I do not intend to go into that question any further. When once it is evident that the third respondent is not the authority competent to transfer the petitioner and that the authority competent to transfer the petitioner is the Vice Chancellor of the University and also that the decision in Ext.P3 to transfer the petitioner was, in fact, taken by the Pro Vice Chancellor who is in charge of the Vice Chancellor I am not inclined to accept the contention of the petitioner that the order of transfer is tainted with malafides and ulterior motive and that it was issued on exertion of influence by the third respondent on the Vice Chancellor in charge, in the absence of any circumstance and material to draw such a conclusion. WP(C).No.13954/2013 12 6. At the same time, the facts born out from the rival pleadings would reveal that there is substance in the contention that the petitioner was transferred as per Ext.P3 dated 28.5.2013 as against a non-existent post. Certain crucial aspects have to be looked into in the said context. As noticed hereinbefore, in the affidavit filed by the first respondent dated 4.6.2013 it is stated that in the English Department under the first respondent University the post sanctioned/created are all in the cadre of Assistant Professor though some of them including the petitioner were subsequently promoted to higher cadres under the UGC Career Advancement Scheme. It is also stated therein that the entire Professors/Teachers of the first respondent University are considered as a single unit and each person would be posted in each centre according to the work load and for the smooth functioning of the centre. In Paragraph 2 of the said affidavit dated 4.6.2013 it is stated that when the matter was taken up for consideration on 4.6.2013 this Court directed the University to place on record the records showing the strength of the staff required at University Centre, Tirur. In fact, as stated by the petitioner in the reply affidavit this Court has pointedly posed a question as to whether any post of Associate Professor has been sanctioned and available in the Tirur Centre. It is against such a query WP(C).No.13954/2013 13 that the aforementioned details were furnished as per affidavit dated 4.6.2013. The statement in the affidavit filed by the first respondent would reveal that the stand taken by the University is that the entire Professors/Teachers of the University are considered as a single unit and that all the posts in the English Department were sanctioned/created only in the cadre of Assistant Professor. After stating so, along with the said affidavit Ext.R1(f) was produced. Ext.R1(f) would reveal the recommendations of the Standing Committee on staff held on 13.3.2013. Subsequently, a counter affidavit has been filed by the first respondent. It is stated therein that in the University Centre at Tirur there are two Assistant Professors. It is further stated therein that at University Centre, Thiruvananthapuram of the first respondent University there are two Associate Professors and two Assistant Professors. The documents produced along with the counter affidavit (Exts.P8 and P8(a)) would reveal that the recommendation of the Standing Committee was to create three posts of Assistant Professors in English and one post of Associate Professor in English at Tirur Centre. The decision of the Syndicate in Ext.P8 or particularly at item No.15 would reveal that the said proposal to create one post of Associate Professor was virtually rejected and it was resolved to create only four posts of Assistant Professors of English at Tirur Centre, that too, only with the approval of WP(C).No.13954/2013 14 the Government. Ext.P8 itself would reveal that no recommendation was made by the Syndicate to create any post of Associate Professor in English at Tirur Centre. What is relevant in the context of the rival contentions is that as per Ext.P8 it is evident that for creation it was resolved by the Syndicate only to request the Government for approval of 4 posts of Assistant Professor in English in Tirur Centre. Ext.P9 would reveal that in terms of the provisions under Section 14(2)(h) of the Act for creation of any post under the first respondent University prior approval by the Government is required. It is evident from paragraph 9 of the judgment that after considering the provisions under Section 14(2) (h) of the Act it was held by this Court that Statute 3(ii) and (xii) of Chapter V did not empower the Syndicate to create a post and that too, without the prior approval of the Government in view of Section 14(2)(h) of the Act. Though the documents produced by the first respondent along with the affidavit and the counter affidavit would show that initially a Standing Committee on staff recommended for creation of one post of Associate Professor it was only a resolution for recommending to request for approval for creation of such a post and in fact, the Syndicate did not accept the said recommendation of creation of one post of Associate Professor at the University Centre, Tirur. Going by the facts thus obtained from Exts.R1(f), P8 and P8(a) it is evident that the contention WP(C).No.13954/2013 15 taken in the affidavit dated 4.6.2013 by the first respondent that all the posts were created or sanctioned only in the cadre of Assistant Professor in English Department is not the true position. In other words, going by the stand taken thereunder as regards the English Department posts are created only at the cadre of Assistant Professor. But, at the same time, it is true that Ext.P8 would reveal that though the recommendation of the Standing Committee on staff was to create one post of Associate Professor and three posts of Assistant Professor in English Department at the Tirur Centre the Syndicate resolved only to seek for approval for creation of 4 posts of Assistant Professor in English and no decision was taken to seek for creation of four posts of Assistant Professor in Tirur Centre. It would thus clear that under the University a post with the designation Associate Professor is very much available and such a post is to be created and Ext.P8 would reveal that any such post could be created only with the sanction of the Government. There is absolutely no case for the respondents that a post of Associate Professor was created at University Centre, Tirur. It would only reveal that there was such a proposal but, the said recommendation was not in fact, accepted even by the Syndicate and even if it is taken that the said recommendation was accepted and consequently the Syndicate resolved to recommend for its creation and sought for approval from the Government it is to be noted WP(C).No.13954/2013 16 that there is no case for the respondents that hitherto approval was granted by the Government for creation of a post of Associate Professor in English Department at University Centre, Tirur. In the light of Ext.P9 judgment rendered after carefully scanning the provisions under Section 14(2)(h) of the Act and what is revealed from Ext.P8 it is evident that for creating such posts approval from the Government is required. It is to be noted that in Ext.P8 the Syndicate resolved to request approval of the Government for creation of all posts specifically referred to in Ext.P8. That also supports the contention of the petitioner that a post of Associate Professor could be created under the first respondent only with the approval of the Government. At any rate, in Ext.P9 this Court after referring to the provisions under Section 14(2)(h) and the powers of the Syndicate by virtue of Statute 3(ii) and (ix) of Chapter V held that the Syndicate is not empowered to create a post without the prior approval of the Government in view of Section 14(2)(h) of the Act. As noticed hereinbefore, there is nothing on record to show that at the University Centre, Tirur of the first respondent University a post of Associate Professor created and it was available in the English Department when Ext.P3 order was issued. In fact, after carefully scanning of the contentions in the affidavit and the counter affidavit filed by the first respondent I could not find any statement specifically stating that with WP(C).No.13954/2013 17 the approval of the Government a post of Associate Professor was created in the English Department at University Centre, Tirur and it is against that post that the petitioner was transferred as per Ext.P3. In that context, the further finding in Ext.P9 judgment assumes relevance. This Court in respect of the grievance of the petitioner in W.P.(C) No.1029 of 2010 holding the post of Reader in Ayurveda Department of the first respondent University held that the first respondent University could not transfer a person against a non-existent post. Going by the findings in paragraph 10 thereunder even if a concerned post is created but, if it is not created in accordance with the relevant provisions under the Act it could not be a creation of the concerned post in accordance with law and therefore, transfer could not be effected. In view of the position thus obtained in this case, I am inclined to accept the contention of the petitioner that as per Ext.P3 the petitioner was transferred from Main Centre, Kalady to University Centre, Tirur against a non-existent post. In this context, it is to be noted that the fact that the petitioner is presently an Associate Professor on such promotion is not at all disputed by the respondents whereas in the affidavit it has been specifically stated that the petitioner though appointed initially as an Assistant Professor got promotion subsequently to the post of Associate Professor. There cannot be any doubt with respect to the fact that a person holding the WP(C).No.13954/2013 18 post of Associate Professor can be transferred only against such a post or an equivalent post and when the first respondent admitted the fact that the petitioner who was appointed as Assistant Professor was promoted as Associate Professor it cannot be contended that the post of Associate Professor is equivalent to Assistant Professor. It is a promotion post of Assistant Professor even going by the contention of the first respondent. In the light of the said contention it is evident that the petitioner who is holding the post of Associate Professor in the Department of English at the Main Centre at Kalady of the first respondent University was placed under orders of transfer to University Centre, Tirur as per Ext.P3 against a non-existent post. In view of the said indisputable position obtained in this case Ext.P3 is liable to be interfered with and accordingly it is set aside. In view of the above findings, there is no necessity to consider the contentions and rival contentions regarding the working hours and the requirement of teaching staff. The writ petition is allowed to the above extent. **==> picture [321 x 44] intentionally omitted <==** TKS