Jince Augustine v Centre for Professional and Advanced Studies and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021/21ST MAGHA,1942** ## **WP(C).No.2767 OF 2021(U)** ## **- PETITIONER :** **JINCE AUGUSTINE, AGED 41 YEARS S/O.K.A.AUGUSTHY, ASSOCIATE PROFESSOR, DEPARTMENT OF PHYSIOTHERAPY, SCHOOL OF MEDICAL EDUCATION, GANDHI NAGAR, KOTTAYAM - 686 008.** **BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY SMT.MAITREYI SACHIDANANDA HEGDE** ## **- RESPONDENTS :** |**1**|**CENTRE FOR PROFESSIONAL AND ADVANCED STUDIES**| |---|---| ||**REPRESENTED BY ITS DIRECTOR,**| ||**SCHOOL OF MEDICAL EDUCATION, GANDHI NAGAR,**| ||**KOTTAYAM - 686 008.**| |**2**|**DIRECTOR,**| ||**SCHOOL OF MEDICAL EDUCATION, GANDHI NAGAR,**| ||**KOTTAYAM - 686 008.**| |**3**|**DEPUTY DIRECTOR,**| ||**SCHOOL OF MEDICAL EDUCATION, ANGAMALY - 683 572.**| |**4**|**KERALA UNIVERSITY OF HEALTH SCIENCES,**| ||**REPRESENTED BY ITS REGISTRAR,**| ||**UNIVERSITY OF HEALTH SCIENCES,**| ||**MEDICAL COLLEGE P.O., THRISSUR - 680 596.**| ||**BY ADV. SRI.P.C.SASIDHARAN**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-02-2021, THE COURT ON 10-02-2021 DELIVERED THE FOLLOWING:** WP(C).No.2767 OF 2021(U) -: 2 :- ## **JUDGMENT** ## **Dated this the 10th day of February, 2021** This writ petition is filed challenging Ext.P2 order of transfer on the ground that it is unjust, arbitrary, unsustainable and malicious. It is contended by the learned counsel for the petitioner that the petitioner, who is working as Associate Professor in the School of Medical Education, Gandhinagar, Kottayam on contract basis is transferred by Ext.P2 to the School of Medical Education, Angamaly. It is stated that in Ext.P2, the petitioner sought to be transferred as there is a shortage of Associate Professor in the Department of Physiotherapy at Angamaly. It is stated that the attempt is to obtain provisional affiliation for the academic year 2020-2021 for the institution at Angamaly and that this is against Ext.P3 University Order, which specifically states that a person shown as faculty in an affiliated institution during the inspection shall not be treated as faculty in another affiliated institution in that inspection year and an affidavit from the faculty stating that such faculty has not been presented in any other institution in that inspection year is to be provided. It is contended that the attempt is to shift the petitioner, who has been shown as faculty in one institution to another, thus, violating Ext.P3 and is clearly illegal and arbitrary. WP(C).No.2767 OF 2021(U) -: 3 :- 2. A counter affidavit has been placed on record by respondents 1 to 3. It is stated that the petitioner is appointed as a contract employee in the institution and his contract specifies that he is liable to work in any of the colleges under the CPAS. It is further stated that the course of Bachelor in Physiotherapy is conducted at the School of Medical Education, Gandhinagar, Kottayam and the School of Medical Education at Angamaly. The teaching faculty is transferable from one centre to another on need basis. It is further stated at paragraphs 7 and 8 of the counter affidavit as follows :- “7. It is submitted that going by the norms, there are five teaching categories in the subject : |Sl.<br>No.|Post|Qualification| |---|---|---| |1|Principal/Director/Dean/<br>HoD|Master of Physiotherapy<br>with 10 years of post PG<br>teaching experience.| |2|Professor|Master of Physiotherapy<br>with 8 years of post PG<br>teaching experience.| |3|Associate Professor|Master of Physiotherapy<br>with 5 years of post PG<br>teaching experience.| |4|Asst. professor|Master of Physiotherapy| |5|Tutor/Clinical Instructor|Bachelor of Physiotherapy| It is submitted that the number of posts required for going by the Norms are, professor & Principal/HoD – 1, Professor & Vice Principal – 1, Associate Professor – 2, Assistant Professor – 7 and Tutor/Clinical Instructor – 3. 8. The faculty details in the School of Medical Education, Gandhi Nagar in Kottayam in the Department of Physiotherapy are as follows :- WP(C).No.2767 OF 2021(U) -: 4 :- |Sl<br>No|Name of the Staff|Qualification|Total year of<br>teaching<br>experience|KUHS Unique<br>Id| |---|---|---|---|---| |1|Dr.Jugun J|PhD DRP|12 years|K21001| |2|Dr.Shibu Puthenparambil|MPH, UGC-<br>NET, PhD|17 years|Under<br>University<br>Verification| |3|Renjith<br>Chandrasekharan<br>Nair|MPT|12 years 6 months|Under<br>University<br>Verification| |4|Priya Accal Thomas|MPT|15 years 7 months|L18860| |5|Jince Augustine|MPT|13 years 4 months|L18872| |6|Albeni I S|MPT|10 years 4 months|L18920| |7|Shyni M|MPT|13 years 6 months|L18864| |8|Deepu C.B.|MPT|5 years 10 months|L18858| |9|Ansu Riya George|MPT|5 years 10 months|L18863| |10|Prathibha I Janardhanan|MPT|5 years 10 months|L18922| |11|Farasha K A|MPT|1 year 1 month|Under<br>University<br>Verification| |12|K.K.Sujamol|MPT|2 year 7 months|L19382| |13|Maria Stefy Suresh Kumar|MPT|NIL|-| |14|Riju Kurian Thomas|MPT|1 year|-| |15|Jomi John|MPT|NIL|-| |16|Ancila Simon|MPT|NIL|-| |17|Seethal Vincent|MPT|NIL|-| |18|Sreedevi K.S.|BPT|2 years|Under<br>University<br>Verification| |19|Fathima Nazar|BPT|2 years|Under<br>University<br>Verification| |20|Sheril Tom|BPT|2 years|Under<br>University<br>Verification| It is submitted that Dr.Jugun.J, is the Principal and Dr.Shibu Puthenparambil, the Vice Principal and Sri.Renjith Chandrasekharan Nair is the Professor and Head of Department. There are 4 teachers who satisfy the eligibility of more than 5 years of experience to be Associate Professors since they are having more than 5 years of PG teaching experience thought the request is only 2. There are 10 persons with the qualification of Assistant Professors, whereas the requirement is only 7. To put it otherwise, WP(C).No.2767 OF 2021(U) ## -: 5 :- though the requirement of Associate Professor is only 2, 4 persons are holding the post with the eligibility of being Associate Professors and though requirement of Assistant Professor is only 7, there are 10 Assistant Professors in addition to the required number of the Tutors. Hence the averment of the petitioner that the transfer is a colourable exercise of power to create an artificial strength of faculty at Angamaly is incorrect and one made knowledge incorrect.” It is stated that there are excess teachers in the Department of Physiotherapy at Gandhinagar and that there is requirement of faculty at Angamaly, which is the reason why an order of transfer has been passed. It is stated that the CPAS is a charitable society running professional courses and that writ will lie against a society only if there is a violation of fundamental rights of the petitioner. It is further stated that the petitioner has already been relieved as early as on 1.2.2021. 3. The petitioner has filed I.A. No.1 of 2021 producing a representation preferred by him on 4.2.2021 before the Registrar of the University. It is stated that grounds have been raised as against the order of transfer stating that it is against Ext.P3 University Order. The learned counsel for the petitioner also relies on the decision of the Apex Court in **Union of India and others** v. **S. L. Abbas** [(1993) 4 SCC 357], contending that a transfer order, which is vitiated by mala fides or is made in violation of any statutory provisions is liable to be interfered with by this Court. WP(C).No.2767 OF 2021(U) -: 6 :- 4. I have considered the contentions advanced. The specific case of the petitioner is that his transfer from Kottayam to Angamaly is in violation of Ext.P3 order of the University. It is stated that provisional affiliation is granted by respondents 4 and 5 for the course of Bachelor in Physiotherapy at Kottayam showing the petitioner as a qualified faculty. It is stated that the attempt to shift him to Angamaly is, therefore, illegal. The petitioner in paragraph 1 of the writ petition submits that he had been transferred to Kottayam from the School of Medical Education, Angamaly on compassionate grounds. Ext.P1 is the order. By Ext.P2, the petitioner has been transferred to Angamaly on the ground that there is a shortage of Associate Professor in the Department of Physiotherapy at Angamaly. Though the petitioner has raised a contention that the facts stated in the counter affidavit do not find a place in Ext.P2, I am of the opinion that the transfer would be liable to be interfered with by this Court only if the transfer is vitiated by mala fides or if it is issued by an authority without jurisdiction or if it is against any statutory or binding provisions of law. In the instant case, it is the petitioner's contention that the transfer is against Ext.P3 order issued by the University. That would be so only in case the transfer of the petitioner would lead to a shortfall in the required faculty at the School of Medical Education, Kottayam. The respondents have placed WP(C).No.2767 OF 2021(U) -: 7 :- a counter affidavit on record specifically stating that there is excess staff available at Kottayam and a dearth of hands at Angamaly. It is only if the facts stated in the counter affidavit are shown to be incorrect that the petitioner has any cause of action to maintain a complaint before the University. Since no such details are forthcoming in Ext.P4, I am of the opinion that there would be no purpose in directing a consideration of Ext.P4. 5. In the facts and circumstances of the instant case and in view of the counter affidavit placed on record by respondents 1 to 3, I am of the opinion that this Court would not be justified in interfering with an order of transfer simplicitor especially in view of the fact that it is admitted that the petitioner had been transferred from Angamaly to Kottayam earlier on his own request. In the above view of the matter, the prayers sought for in the writ petition cannot be granted. This writ petition fails and the same is, accordingly, dismissed. **Sd/ANU SIVARAMAN JUDGE** Jvt/5.2.2021 WP(C).No.2767 OF 2021(U) -: 8 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 17.10.2007 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE ORDER NO 4970/2019/CPASHO DATED 30.1.2021** **EXHIBIT P3 TRUE COPY OF THE UO NO 59/2021/ACADEMIC/KUHS DATED 19.1.2021 ISSUED BY THE 5TH RESPONDENT** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 4.02.2021 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.** //TRUE COPY// P.A. TO JUDGE