Kerala Agricultural University v. Dr. Ani S. Das

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943** ## **WA.No.141 OF 2021** **AGAINST THE ORDER/JUDGMENT DATED 20.10.2020 IN WP(C) 36014/2019(B) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 3:** - **1 KERALA AGRICULTURAL UNIVERSITY REPRESENTED BY ITS REGISTRAR, K.A.U. MAIN CAMPUS, K.A.U. P.O., VELLANIKKARA, N.H.47, THRISSUR-680656.** - **2 THE VICE CHANCELLOR,** **KERALA AGRICULTURAL UNIVERSITY, K.A.U. MAIN CAMPUS, K.A.U. P.O., VELLANIKKARA, N.H.47, THRISSUR-680656.** - **3 THE PROGRAMME CO-ORDINATOR, KERALA AGRICULTURAL UNIVERSITY, KRISHI VIGYAN KENDRA, VELLANIKKARA, THRISSUR-680656.** ## **BY ADVS.** **SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL UNIVERSITY SRI.S.SREEKUMAR (SR.)** ## **RESPONDENT/PETITIONER:** **DR. ANI S. DAS, AGED 53 YEARS S/O. N.SIVADASAN, ASSOCIATE PROFESSOR (ANIMAL REPRODUCTION) KRISHI VIGYAN KENDRA, KERALA AGRICULTURAL UNIVERSITY, THRISSUR, RESIDING AT VILLA NO.34, STAR HOMES, ANNEX, CHATHARI, TRIPUNITHURA, ERNAKULAM-682301.** **R1 BY ADV. REKHA VASUDEVAN(B/O)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30-03-2021, THE COURT ON 31-03-2021 DELIVERED THE FOLLOWING:** :2: **WA.No.141 OF 2021** ## **JUDGMENT** ## **Gopinath P., J.** This appeal at the instance of the Kerala Agricultural University, is filed challenging judgment dated 20.10.2020 in W.P(C).No.36014 of 2019. The Writ Petition was filed by the present respondent challenging Ext.P7 order of transfer, by which the respondent was transferred and posted against the post of Assistant Professor (Veterinary) at Pilicode “ _as the services of a Veterinary Scientist was essential at Pilicode_ ”. The respondent was till the date of Ext.P7 order working as Programme Co-ordinator in the Krishi Vigyan Kendra, Thrissur, with an additional charge of Assistant Professor, College of Agriculture, Padannakkad. The main ground on which Ext.P7 order was challenged is that the respondent is actually an Associate Professor in the speciality of Animal Reproduction and he cannot be transferred and posted against the vacancy of Assistant Professor (Veterinary) at Pilicode. Though this issue was not adjudicated, on a consideration of the matter, the learned single Judge found that the transfer was against Clause 5 of the :3: ## **WA.No.141 OF 2021** Transfer Norms, which provides that the person who has not completed his/her normal tenure of three years at a particular station should not be transferred. The learned Single Judge found that the respondent had been transferred and posted at Krishi Vigyan Kendra, Thrissur only through Ext.P5 proceedings dated 25.09.2019. 2. Sri.S.Sreekumar, learned Senior counsel, appearing on the instructions of Sri.Robson Paul, Standing counsel for the University submits that the contentions of the respondent/writ petitioner that he has been transferred to a non-existing post in a lower category through Ext.P7 cannot be accepted. He submits that the petitioner was transferred to Regional Agricultural Research Station (RARS), Pilicode, as it was found that the services of a Veterinary Scientist are essential there. He submits that the petitioner will continue to enjoy the benefits applicable to the post of Associate Professor and there is no question of any demotion etc., in requiring him to undertake the duties of an Assistant Professor (Veterinary). He refers to the service history of the respondent to show that this is not a case where there has been any violation of the transfer norms. He also submits that :4: ## **WA.No.141 OF 2021** even if the transfer is against the transfer norms, it is settled law that the transfer norms are not enforceable and it is open to the employer to require the employee to work at any station of their choice, in public interest. 3. The learned counsel for the respondent, however, submits that the RARS, Pilicode, is not a station where there is any work that could be done by the petitioner who is an expert in Animal Reproduction. Specific reference is made to Ext.P23 to show that the activities of the RARS, Pilicode, has nothing to do with Animal Reproduction or even with Veterinary Science. In addition, it is submitted that the respondent who is required to work against the post of Assistant Professor (Veterinary Science) would stand to lose on further career prospects such as promotion etc. since the entire experience and educational qualifications of the respondent was in the field of Animal Reproduction. It is submitted that in the assessment norms of the UGC every promotion is on the basis of performance in the field concerned and requiring the respondent to work at RARS, Pilicode, in the post of Assistant Professor (Veterinary Science) will result in the respondent losing out on chances of promotion. :5: ## **WA.No.141 OF 2021** 4. We have considered the contentions raised by either side. It is settled law that in matters of transfer, the Courts or the Tribunals will not substitute their wisdom over the wisdom of the employer unless the transfer was found to be against some statutory provision or otherwise malafide in any manner. Transfer, is an incidence of service. Transfer does not result in the alteration of any condition of service to the disadvantage of the employee. In _**Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey**_ **, [(2004) 12 SCC 299]** it was held: **-** _“_ _**4.** Transfer which is an incidence of service is not to be interfered with by courts unless it is shown to be clearly arbitrary or visited by mala fide or infraction of any prescribed norms of principles governing the transfer (see Abani Kanta Ray v. State of Orissa [1995 Supp (4) SCC 169 : 1996 SCC (L&S) 175 : (1996) 32 ATC 107] . Unless the order of transfer is visited by mala fide or is made in violation of operative guidelines, the court cannot interfere with it (see Union of India v. S.L. Abbas [(1993) 4 SCC 357 : 1994 SCC (L&S) 230 : (1993) 25 ATC 844 : AIR 1993 SC 2444] ). Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any operative guidelines or rules the courts should not ordinarily interfere_ :6: ## **WA.No.141 OF 2021** _with it. In Union of India v. Janardhan Debanath [(2004) 4 SCC 245 : 2004 SCC (L&S) 631] it was observed as follows: (SCC p. 250, para 9)_ _“No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan [(2001) 8 SCC 574 : 2002 SCC (L&S) 21] .”_ We do not see from Ext.P7 that any right or privilege of the respondent as Associate Professor has been taken away by requiring him to work against the post of Assistant Professor in Veterinary Science at Pilicode. It is the specific case of the University that the respondent will continue to be borne on a :7: ## **WA.No.141 OF 2021** cadre of Associate Professor and will continue to enjoy all such benefits of Associate Professor and the service that he may render at RARS, Pilicode, will definitely be taken into consideration for further promotion/career advancement. The University also submits that the apprehension of the respondent that his career prospects will be affected by his posting at RARS, Pilicode, is only a figment of his imagination and this is not the situation. In para 7 of the affidavit dated 06.03.2021 filed in reply to I.A.No.1 of 2021, it is stated as follows: _“7. It is respectfully submitted that the averments contained in para 4.e is not true and hence denied. It is respectfully submitted that the Regional Agricultural Research Station, Pilicode has a fully functional veterinary unit. At RARS Pilicode, Farm Management/Livestock management is one of the major activities of the station and conservation and evaluation of Kasargod dwarf cattle, conservation of Malabari goats are among current research focus areas of the station. His posting at RARS, Pilicode will in no way affect his further chance of Career Advancement Promotions under the UGC Scheme as the assessment of his work as per Performance Based Appraisal System is devised by the University itself and it is based on the duties and responsibilities actually entrusted to the Scientist. The incumbent is posted at RARS, Pilicode on pure public interest where his services are highly essential to take care of the livestock and for the smooth functioning of the farm.”_ :8: **WA.No.141 OF 2021** It would also be useful to extract paragraph 14 and 18 of the very same affidavit, which reads as follows: _“14. It is respectfully submitted that the averments contained in para 4.m are not correct and hence denied. It is respectfully submitted that the available number of posts of teachers/scientists specialized in Veterinary Sciences in KAU is very limited due to formation of Kerala Veterinary and Animal Science University (KVASU) and The Kerala University of Fisheries and Ocean Studies (KUFOS) on 01/04/2011, by trifurcating KAU. Since the trifurcation, the Faculty of Veterinary and Animal Sciences in KAU ceased to exist and the various disciplines in Veterinary Science are pooled together as a common discipline of Veterinary Sciences and became part of the Faculty of Agriculture. The respondent's discipline is Veterinary Science and he is posted at RARS, Pilicode where a full-fledged Animal Sciences division is in place, to effectively utilise his service in the public interest. No teacher/scientist in research and extension centres of the University unless otherwise posted on working arrangement need to take classes, as mandate of teachers posted in these units are to carry out research and extension activities. One post of teacher in the discipline of Veterinary Science is available at RARS, Pilicode. The respondent can carry out research and extension activities as other fellow teachers/scientists working at RARS, Pilicode. Moreover, the respondent has been already assigned to teach Veterinary Science courses at College of Agriculture Padannakkad, a college under the University near to the RARS, Pilicode. Hence the respondent's contentions are untenable._ :9: ## **WA.No.141 OF 2021** _18. It is respectfully submitted that the averments in para 9 is not correct and hence denied. The University has always acknowledged the abilities of the respondent and hence he has been posted at RARS Pilicode, where the services of a well experienced senior faculty is required. Krishi Vigyan Kendra is only an extension centre but a Regional Agricultural Research Station is a well-equipped place for the respondent to carry out his research activities more effectively and efficiently.”_ It is clear from Ext.P7 order that the respondent was transferred on account of the immediate need of a qualified person at RARS, Pilicode. This together with the averments in the affidavit dated 06.03.2021 clearly show that there was absolutely no violation of any statutory rule in the matter of transfer of the respondent to RARS, Pilicode. We have no reason to hold that the action taken by the appellants herein in transferring the respondent/writ petitioner is in any way arbitrary or irrational. The orders of transfer have been passed in the interest of the administration and with a view to carrying on its functions. There is no allegation that the transfer was vitiated by malafides. In the above factual situation, we are inclined to allow this Appeal by setting aside the judgment of the learned Single Judge and holding that Ext.P7 order of transfer is legal and valid for all :10: ## **WA.No.141 OF 2021** purposes. In order to allay the apprehensions of the respondent that the career prospects, such as promotion and career advancement, will be affected by the transfer and posting at RARS, Pilicode, we record the submission made on behalf of the University by the learned Senior counsel that the career prospects of the respondent will not in any manner be affected by his transfer and posting at RARS, Pilicode. The Writ Appeal will stand allowed and the judgment of the learned Single Judge will stand set aside. No costs. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **GOPINATH P. JUDGE** mns/31.03.2021 :11: ## **WA.No.141 OF 2021** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **ANNEXURE A1(A): A TRUE COPY OF THE REQUEST LETTER DATED 27.09.2018** **ANNEXURE A1(B): A TRUE COPY OF NOTIFICATION DATED 03.03.2016 ISSUED FOR RECRUITMENT OF ASSISTANT PROFESSORS.** **ANNEXURE A1(C): A TRUE COPY OF RANK LIST OF ASSISTANT PROFESSOR IN LIVESTOCK PRODUCTION MANAGEMENT/ANIMAL REPRODUCTION/VETERINARY MEDICINE DISCIPLINES DATED 19.02.2019.** **ANNEXURE A1(D): A TRUE COPY OF ORDER NO.GA/C3/22542/2019(I) DATED 12.02.2021.** **ANNEXURE A1(E): A TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 20.01.2021 FOR REVIEW OF BIO-RESOURCE CUM AGRO SERVICE CENTRE AT MOKERI, KUTHUPARAMBA BY SECRETARY AGRICULTURE.** **ANNEXURE A1(F): A TRUE COPY OF G.O.(MS) NO.26/2021/AGRI DATED 13.02.2021** **ANNEXURE A1(G)- A TRUE COPY OF JUDGMENT DATED 10.02.2021 IN WRIT APPEAL NO.1460 OF 2020** ## **RESPONDENTS EXHIBITS:** **ANNEXURE R1(D)-TRUE COPY OF THE ORDER NO.KVK/TCR/991/2019 DATED 02.02.2021 ISSUED BY THE 3RD APPELLANT ALONG WITH THE FORWARDING MAIL TO THE RESPONDENT HEREIN.** **ANNEXURE R1(B)-TRUE COPY OF THE LEAVE APPLICATION ALONG WITH THE MEDICAL CERTIFICATE DATED 03.02.2021** **ANNEXURE R1(C)-TRUE COPY OF THE NEWS PAPER REPORT PUBLISHED IN MANAORAMA DAILY, THRISSUR EDITION ON 25TH AUGUST 2020** **ANNEXURE R1(D)- TRUE COPY OF THE JUDGMENT DATED 14.01.2021 IN WP(C) NO.110 OF 2021 AND CONNECTED CASES** **ANNEXURE R1(E)- TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 30.09.2020 OF THE BIO RESOURCE CUM AGRO CENTRE** **ANNEXURE R1(F)- TRUE COPY OF THE LETTER DATED 19.02.2021 SUBMITTED BY THE RESPONDENT TO THE SECRETARY AGRICULTURAL DEPARTMENT** **//TRUE COPY//** **P.A TO JUDGE**