Dr. Usha C. Thomas v. Registrar, Kerala Agricultural University

## **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. 33929 of 2017 (M)** **----------------------------** **PETITIONER : ----------------------** **DR. USHA C.THOMAS, ASSISTANT PROFESSOR (AGRONOMY), AICRP ON FORAGE CROPS AND ITS UTILIZATION, COLLEGE OF AGRICULTURE, VELLAYANI P.O., THIRUVANANTHAPURAM -695 522.** **BY ADVS.SRI.N.D.PREMACHANDRAN SRI.D.AJITHKUMAR** **RESPONDENT :** **------------------------** **THE REGISTRAR, KERALA AGRICULTURAL UNIVERSITY, HQ, VELLANIKKARA CAMPUS, THRISSUR.** **R1 & R2 BY SRI.ROBSON PAUL, SC,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 33929 of 2017 (M)** ## **-------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **---------------------------------------** ## **EXHIBIT P1 A COPY OF THE PROCEEDINGS DATED 7/10/2005 OF THE RESPONDENT** - **EXHIBIT P2 A COPY OF THE PROCEEDINGS DATED 7/10/2005 OF THE RESPONDENT** - **EXHIBIT P3 A COPY OF THE ORDER DATED 11/12/2009 OF THE RESPONDENT** - **EXHIBIT P4 A COPY OF THE PROCEEDINGS DATED 13/12/2013** - **EXHIBIT P5 A COPY OF THE PROCEEDINGS DATED 21/10/2017** - **EXHIBIT P6 A COPY OF THE REPRESENTATION DATED 23/10/2017** - **EXHIBIT P7 A COPY OF THE REPRESENTATION DATED 23/10/2017 SUBMITTED BY THE PETITIONER'S HUSBAND** - **EXHIBIT P8 A COPY OF THE TRANSFER NORMS OF THE UNIVERSITY** ## **RESPONDENT(S)' EXHIBITS** **-----------------------------------------** - **EXHIBIT R1 TRUE COPY OF THE LETTER DATED 8/9/2017** - **EXHIBIT R2 COPY OF THE REPRESENTATION SUBMITTED BY N.SREEHARI** - **EXHIBIT R3 COPY OF THE REPRESENTATION SUBMITTED BY N.SREEHARI** - **EXHIBIT R4 COPY OF THE REPRESENTATION SUBMITTED BY N.SREEHARI** - **EXHIBIT R5 COPY OF THE REPRESENTATION SUBMITTED BY N.SREEHARI** - **EXHIBIT R6 COPY OF THE LETTER DATED 7/10/2017 ISSUED FROM THE OFFICE OF THE CHANCELLOR.** **EXHIBIT R7 COPY OF THE DIRECTION ISSUED FROM THE OFFICE OF PRO CHANCELLOR VIDE NO.1872458/17/M.** - **EXHIBIT R8 COPY OF THE ORDER DATED 27/9/17.** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No. 33929 of 2017-M ------------------------------------------- _Dated this the 28[th] day of November, 2017_ ## _**JUDGMENT**_ The writ petition is filed challenging Ext.P5 order of the 1[st] respondent issued on 21.10.2017 by which 6 teachers including the petitioner herein were transferred to College of Agriculture, Padannakkad from their respective colleges with immediate effect. The reasons stated was that the Associate Dean, College of Agriculture, Padannakkad as per letter dated 17.10.2017 informed that the acute shortage of teaching faculty in the college was drastically affecting the academic programs of the college. Apart from that the Honourable Governor, Government of Kerala and Chancellor of the Kerala Agricultural University as well as the Hon'ble Minister for Agriculture, Kerala and Pro Chancellor of Kerala Agricultural University have directed the University to take immediate measures to address the grievances of the students of the college and the students of Padannakkad. Stating the aforesaid reason, it was ordered that the 6 teachers mentioned therein including the petitioner, who have not completed their bonded obligation at the College of Agriculture, Padannakkad, are 2 W.P(C) No. 33929 of 2017-M transferred to the College of Argiculture, Padannakkad. 2. Petitioner is an Assistant Professor in Agronomy. Her appointment was as per Ext.P1 order dated 07.10.2005, against the post exclusively created for the newly established Krishi Vigyan Kendra, Kottayam. As in the case of all appointments, it was ordered that (1) the appointment was stated to be on contract basis as required under Section 42 of the University Act; (2) she was directed to execute an agreement in stamp paper; the period of appointment was stated to be the period till she attains superannuation as laid down in Section 42(5) of the Kerala University Act or till the termination of the Scheme/abolition of the post; (3) for all purposes she would be treated as an employee of the University as part of approved cadre and would be subject to the administrative control of the University; the officer would have lien in the concerned discipline in the newly created KVK mentioned in the notification; (4)(i) selected candidate will work in the station/institution to which he/she is appointed for a minimum period of five years; any leave availed in excess of 2 months per year will not be considered for counting the 5 year period; (ii) option/request for transfer as per clause 3 of Proceedings no. GA/C1/1339/99 dated 13.04.99 prescribing transfer norms will not be W.P(C) No. 33929 of 2017-M 3 entertained under any circumstances till the completion of stipulated 5 years; (iii) University would be free to make interdepartmental/inter unit transfer as per requirement in public interest at any time. The petitioner was directed to report at KVK, Kottayam, within one month with certificate of fitness, etc. 3. The 1[st] respondent has stated that as per Clause 4 of the order of appointment, petitioner has to work for a period of 5 years in the College at Padannakad. Clause 4(i) provides for an obligation to work in the station/institution to which one is appointed. According to petitioner, she does not have any bonded obligation to work at the College of Agriculture, Padannakkad, as her appointment was in KVK Kottayam. 4. As per another order Ext.P2 issued on the very same day, i.e on 07.10.2005, the petitioner was deployed to a vacant post in the College of Agriculture, Padannakadu, saying that University had already deployed skeletal staff for the operation of newly created KVK and as they were deployed in the University's interest, they cannot be transferred out. It was stated that the period served by her in the College of Agriculture, Padannakkad would be treated as her service at KVK Kottayam, as per Clause 4(i) of the appointment order. It was stated that she would be 4 W.P(C) No. 33929 of 2017-M transferred and posted at the concerned discipline in the newly created post when the deployed personnel is transferred out. 5. Thereafter, as per Ext.P3 order dated 11.12.2009 she was transferred to an existing vacancy of Assistant Professor in Agronomy in the College of Agriculture, Vellayani, i.e, after completion of 4 years and 2 months of service at Padannakkad. Thereafter, as per Ext.P4 order issued on 13.12.2013, the petitioner got a transfer to NARP (SR) Vellayani, AICRP. It is while continuing at Vellayani, that the petitioner as well as her husband Dr.Allan Thomas are transferred to College of Agriculture at Padannakadu, saying that they have not completed the bonded obligation of 5 years at Padannakadu. The petitioner immediately submitted a representation Ext.P6 before the respondent pointing out the hardship caused to her by a transfer in the midst of the academic year, when her two children of tender age are studying in Schools at Thiruvananthapuram. The writ petition is filed at that stage challenging Ext.P5 order of transfer. 6. The petitioner submits that the transfer is ordered without following any of the norms for transfer. It is issued to victimise her; there is no reason to choose her for transfer, when there are several Assistant Professors, who have even completed 25 years, retained at Vellayani. It is 5 W.P(C) No. 33929 of 2017-M pointed out that both the petitioner and her husband are transferred to Padannakadu in flagrant violation of the norms for transfer issued in Ext.P8 order, and they are chosen for the transfer in arbitrary and malafide exercise of power. Both of them are transferred from Vellayani, in the midst of the academic year, when their children are studying in Thiruvananthapuram and it will not be even possible to get them admission in another school. She points out that under clause 20(c) of the transfer norms, service rendered in stations beyond 351kms from the opted stations would be counted as double the period of stay in such stations and therefore her length of stay at Padannakadu for 4 years and 2 months has to be treated as 8 years and 4 months and therefore she is not liable to be transferred in any circumstance. 7. According to her, she was not allowed to work even for a single day in the station to which she was appointed. She was deployed to Padannakadu on the very first day itself in order to accommodate others and thus she had been victimised right from the first day. She has pointed out the name of several Assistant Professors in the very same discipline who were posted to the College at Padannakadu but allowed to continue at Vellayani, without completing their bonded obligation. It is stated that there is nobody to look after their children studying in Layola School, on account W.P(C) No. 33929 of 2017-M 6 of the transfer of both the parents and it will affect their studies. Relying on the judgment of the Apex Court in **Director of Education v. Karuppa Thevan** [1994 Supp (2) SCC 666] the learned Counsel for the petitioner argued that transfer in the midst of the academic year is liable to be interfered with. 8. In the counter affidavit it is stated that the petitioner has not completed the bonded obligation stipulated in para (i) of the University Orders Ext.P1 and Ext.P2 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. 9. The petitioner has filed a reply affidavit pointing out the discriminatory treatment meted out to her by the University by allowing the teachers who were exclusively posted to the College of Agriculture, Padannakadu to continue at Padannakadu while transferring the petitioner, who did not have any bonded obligation, to work there. She alleged that the University cannot pick and choose teachers for the purposes of transfer. 7 W.P(C) No. 33929 of 2017-M 10. In the counter affidavit filed by the respondent the reason stated is that there is acute shortage of teaching staff. Apart from that they have produced Exts.R1 to R8 documents based on which the impugned transfer orders were issued. Ext.R1 is a letter dt.8.9.17 of the Associate Dean informing the Registrar that Dr.T.K.Bridgit, 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 8 W.P(C) No. 33929 of 2017-M 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) ## 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).” 11. Ext.R2 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 is also a W.P(C) No. 33929 of 2017-M 9 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 at 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 working at Padannakkad are transferred to far off place. Ext R4 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 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] 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 is the letter dated 07.10.2017 addressed W.P(C) No. 33929 of 2017-M 10 to the Vice Chancellor of the University from the Secretary to Governor calling for a report on the complaint of Sri. Srihari 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 is a letter dated 20.10.2017, from the Minister for Agriculture directing to take emergents steps on the issue, forwarding the complaint he received from the SFI leader Srihari. It is further stated that Ext.R8 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 Governor as well as the Vice Chancellor 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. 12. On consideration of the rival contentions on either side, it is clear that there is acute shortage of teaching faculties in the College at W.P(C) No. 33929 of 2017-M 11 Padannakad. It is also seen that the order transferring the petitioner issued on 21.10.2017, was pursuant to the instructions the respondent 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 interfering with such a transfer, provided no other reason is stated in the order of transfer. 13. But in the present case the petitioner is chosen for the transfer on the ground that she has not completed her bonded obligation to serve at Padannakkad. 14. The orders Exts.P1 and P2 issued in the case of the petitioner Dr. Usha C.Thomas, makes it clear that she does not have the bonded obligation to work at Padannakad. As per Ext.P1, the appointment of the petitioner was exclusively to the Krishi Vignan Kendra at Kottayam. Clause 4 (i) of the order Ext.P1 provides that the selected candidates have to work in the station/institution to which he/she is appointed, for a minimum period of 5 years. The petitioner was not given any opportunity to work in the institution to which she was appointed. Though it was stated in Ext.P1 that her appointment was to a post exclusively created for KVK, Kottayam, W.P(C) No. 33929 of 2017-M 12 while deploying the petitioner to the College at Padannakad as per Ext.P2 order, what was stated was “The period served by the incumbent at the College at Padannakad will be treated as her service at Kottayam as per clause 4(i) of the appointment Ext.P1.” Such a stipulation cannot be interpreted to mean that she has to complete 5 years at Padannakad or that she has got any obligation to work for that much period at Padannakad. 15. There cannot be any dispute on the power vested in the University to transfer a teacher from one College to another. But the present transfer is ordered stating a reason for choosing the petitioner for transfer and when it is found to be baseless, it can be definitely interfered with by this Court. 16. It is also pertinent to note that the petitioner has pointed out the names of a large number of teachers in the very same discipline who have not completed bonded obligation at Padannakad, who are left undisturbed. There is no answer for the same. Therefore, whatever be the degree of public interest, the power to transfer has to be exercised properly, on relevant considerations. When the consideration is found to be extraneous or on a non-existent reason, the order does not stand in the eye of law. 17. In the above view of my conclusions, I do not think it necessary W.P(C) No. 33929 of 2017-M 13 to go into the contention raised by the petitioner against the transfer ordered in the midst of academic year relying on the judgment of the Apex Court in **Director of School Education** v. **O. Karuppa Thevan & others** : **1994 suppl (2) SCC 666.** Therefore, the transfer of the petitioner ordered in Ext.P5 is set aside and the writ petition is allowed. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_