Lineesh.K.R v State of Kerala, Kerala Agricultural University, Kerala University of Fisheries & Ocean Studies and Others

**WP(C) NO. 142 OF 2018** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 7[TH] DAY OF MARCH 2022 / 16TH PHALGUNA, 1943** **WP(C) NO. 142 OF 2018** ## **PETITIONER:** LINEESH.K.R AGED 36 YEARS, S/O RAGAVAN, CLASS IV EMPLOYEE,KERALA UNIVERSITY OF FISHERIES & OCEAN STUDIES,PANANGAD P.O, KOCHI, RESIDING AT KARATTUPARAMBIL,VELLANIKKARA P.O, THRISSUR. BY ADVS. SRI.R.SANJITH SMT.ASHI SUKUMARAN SMT.K.JASMIN BABY SMT.JEENSHA CHACKO SMT.C.S.SINDHU KRISHNAH ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY,FISHERIES AND PORTS DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 KERALA AGRICULTURAL UNIVERSITY REPRESENTED BY ITS REGISTRAR,VELLANIKKARA, TRICHUR - 680 651. 3 KERALA UNIVERSITY OF FISHERIES & OCEAN STUDIES PANANGAD P.O, KOCHI -682 506. SRI ROBSON PAUL, SC SRI VIPIN DAS T.K, SC SMT ANIMA M, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 142 OF 2018** **2** ## **JUDGMENT** The challenge in this writ petition is mounted against Ext.P10 order by which the 1st respondent has rejected the request of the petitioner to revoke the option exercised by him to join the Kerala University of Fisheries and Ocean Studies (KUFOS), Panangad and to transfer the service to the Kerala Agricultural University (KAU). 2. Pursuant to the enactment of the Kerala University of Fisheries and Ocean Studies Act, 2010, the College of Fisheries, Panangad was disaffiliated from the Kerala Agricultural University with effect from 1.4.2011, to form the Kerala University of Fisheries and Ocean Studies. All properties, assets and liabilities of the College of Fisheries, Panangad and the Fisheries Station, Puthuvypu were transferred to the KUFOS and the persons employed in the institutions became the employees of KUFOS. The Act also provides for calling of options from the employees from the parent University for appointment to the new University based on seniority. The provisions of the Act states that the KAU employees who have a superior claim than others and who have become the employees of the KUFOS are entitled to submit option within a period of six months and can be appointed there and also that the junior employees from the new University may return to the KAU. **WP(C) NO. 142 OF 2018** **3** 3. Options were invited from the employees of both the Universities as per Ext.P1A and in tune with the same, the petitioner exercised his option by submitting Ext.P2. As per Ext.P2, the petitioner elected to continue his service in KUFOS with effect from 1.4.2011. After submitting the option, he felt that it was unwise to exercise the option and decided to revoke the same. In the said circumstances, he submitted Ext.P3 representation on 18.1.2012 and 2.2.2012 before the 3rd respondent requesting that the option exercised by him be revoked. The Registrar, KUFOS, by Exhibit P4 communication dated 10.2.2012 informed the Government that the petitioner has revoked his option to continue his service at KUFOS and to work at the KAU. However, without considering Exts.P3 and P4, Ext.P5 order was issued by the Government as per which sanction was accorded to relieve 23 Nos. of teaching staff and 52 Nos. of Non-teaching Staff who were working in KAU and shifted to the KUFOS. Immediately thereafter, he submitted Ext.P6 representation on 15.11.2012 requesting that he be allowed to continue in the service of the 2nd respondent and to revoke the option. However, no action was taken on the same. It is the case of the petitioner that as per the provisions of Section 73(4)(b) of the KUFOS Act, 2010, the respondents are bound to consider the request of the petitioner for transfer back to the parent University. It is also pointed out that while continuing in the service of the 2nd respondent, he had applied to the post of Bus Attendant Grade II and being qualified, he was included in Ext.P7 list dated 28.11.2009. **WP(C) NO. 142 OF 2018** **4** However, as the 3rd respondent has disaffiliated from the 2nd respondent, there is no possibility of the name of the petitioner being considered for the said post. He was also informed by the 2nd respondent in response to Ext.P3 representation that the time limit for exercise of option has expired and since the petitioner is not having a lien in the services of the 2nd respondent, he cannot be considered for promotion. 4. Being aggrieved, the petitioner is stated to have filed W.P.(C) No.7639/2013 before this Court and this Court by judgment dated 10.11.2016, directed the Government to reconsider the revocation of option submitted by the petitioner and to reconsider the matter in the light of the directions issued by a Division Bench of this Court in W.A.No.1051/2011. According to the petitioner, the 1st respondent without considering the facts and circumstances and the directions issued by this Court rejected the request of the petitioner by Exhibit P10 order. 5. It is contended that the order cannot be sustained in the light of Exts.P11 and P12 judgments issued by this Court. It is also asserted that the impugned order is clearly violative of the constitutional rights guaranteed to the petitioner. It is on these assertions that the petitioner has approached this Court seeking to quash Ext.P5 and for a declaration that the petitioner is still continuing in the service of the 2nd respondent and for incidental reliefs. 6. A counter affidavit has been filed by the 2nd respondent wherein **WP(C) NO. 142 OF 2018** **5** it is stated that as per the provisions of Section 47(3) of the KUFOS, 2010, all research programmes, research stations, facilities, personnel and budgets assigned to the KAU with research in Fisheries, Ocean Studies and Allied Fields of Study immediately before the commencement of Act stands transferred to the KUFOS according to terms mutually agreed between the University and the Government. In terms of the said provision and pursuant to the Gazette Notification dated 10.5.2011 with effect from 1.4.2011, all persons employed in the constituent institution of KUFOS became an employee of KUFOS. When the terms of transfer are governed by a scheme that is framed under the authority of a statute, the principles of Contract Law may not be applicable. As per Section 73 of the KUFOS Act, every person employed in Colleges of Fisheries of the KAU shall immediately before the date specified in the notification under subsection (1) become an employee of the University as from that date. As is evident from Ext.P10, the post and employees have been transferred by the 1st respondent in the exercise of its powers under Section 73 of the KUFOS Act, 2010 to the 3rd respondent University by G.O.(Rt) No.369/12/F & PD dated 27.4.2012. The said order and the prior Government Orders were passed in accordance with the provisions of KUFOS Act, 2010, which shifted the posts. The transfer of the employees to the 3rd respondent has in the said circumstances become final. The 3rd respondent University has also requested that these posts may not be transferred back to the 2nd respondent. There are no vacancies to **WP(C) NO. 142 OF 2018** **6** accommodate the petitioner as a Class-IV employee and moreover, the petitioner cannot be accommodated without affecting the cadre strength of Class-IV employees. The vacancies that were in existence have been filled up by way of internal appointment or have already been reported for direct recruitment to the concerned agency. If the petitioner is to be accommodated, he would have to be placed junior most in the cadre so that the interest of persons who have continued in service of the 2nd respondent may not be affected. While rendering Ext.P11 judgment, this Court took note of the fact that the transferee University had no objection in revoking the option. However, in the case of the petitioner, the 3rd respondent has requested that the post be retained with the 3rd respondent. The principles laid down in Exts.P11 and P12 judgments may not be applicable in the case of the petitioner as in those cases, there was no provision concerning the revocation of the option one way or the other. However, in the case of the petitioner, a specific time limit was set for the revocation of the option. The respondents could not have acted disregarding the time limit and if the same is done, it would have disturbed settled rights. The petitioner does not have any lien in the post of Class-IV employee and therefore, he cannot be considered for the post of Bus Attendant. Furthermore, the select list is no longer valid and moreover, the petitioner would have no indefeasible right to be considered to the post of Bus Attendant on the basis of his inclusion in the select list. **WP(C) NO. 142 OF 2018** **7** 7. After the filing of the counter affidavit, the petitioner has placed on record Exhibit P13 to bring home his point that even recently transfer of employees between 2nd and 3rd respondents are being effected based on options exercised by the respective employee. 8. Sri. R. Sanjith, the learned counsel submitted that before the option exercised by the petitioner was accepted, he had revoked the option. The respondents, without taking note of the said fact, passed Exhibit P5 order on 16.6.2012. It is contended that the petitioner would be entitled to the benefit of the proviso to Section 73(4)(b) of the KUFOS Act, as he had exercised the option at the earliest stage. Unless the option exercised by the petitioner was accepted and acted upon, the respondent could not have held that the lien acquired by the petitioner in a particular post in the 2nd respondent would be lost. Reliance is placed by the learned Counsel to the fact that this Court during the previous round of litigation had conclusively held that the request for revocation made by the petitioner had not been considered by the Government. This Court, after setting aside the order of transfer, had directed the respondents to reconsider the issue. However, without taking note of any of the aspects, the request made by the petitioner was rejected. The learned counsel would refer to the counter affidavit filed by the 2nd respondent and it is submitted that the petitioner would not have any objection even if he was placed junior most in the cadre. **WP(C) NO. 142 OF 2018** **8** 9. Sri Robson Paul, the learned counsel appearing for the 2nd respondent submitted that the option having been exercised and as the petitioner has been working in the 3rd respondent for the past several years, it may not be possible to unsettle the same. it is further submitted that there is no vacant Grade IV post in the 2nd respondent to accommodate the petitioner. Sri N Satheesh, the learned standing counsel appearing for the 3rd respondent supported the submissions of Sri Robson Paul. 10. I have considered the submissions advanced. This is the 2nd round of litigation. Being aggrieved by the order passed by the respondent without considering the revocation of option, the petitioner had approached this Court and had filed W.P.(C) No.7639/2013. After considering the entire aspects, a learned Single Judge of this Court by common judgment dated 10.11.2016 had set aside Exhibit P5 produced in this Writ petition as per which the petitioner was relieved from the service of the 2nd respondent by observing as follows. In the instant cases, the petitioners had exercised their option to go over to the third respondent University. The said option was exercised in pursuance of Ext.P1(A) circular dated 13.09.2011 However, the petitioners had addressed the third respondent, informing the revocation of their options before orders were passed accepting the options. The revocation was informed to the Government also. In W.P.(C)No.7639/2013, The request of the petitioner for revocation of the option had been forwarded by the third respondent to the Government by Ext.P4 order on 10.02.2012. In the above view of the matter, **WP(C) NO. 142 OF 2018** **9** it is clear that the request for revocation made by the petitioners had not been considered by the Government. It is also clear that Ext.P5 proceedings were issued by the second respondent University without considering the revocation of option made by the petitioner. In the above view of the matter, I am of the opinion that Ext.P5, to the extent that it directs the transfer of the petitioners to the third respondent University is unsustainable. Ext.R1(a) which is a letter issued by the Secretary to Government to the Registrar of the third respondent University, cannot serve the purpose of consideration of the revocation of option submitted by the petitioners which was duly forwarded to the first respondent. In the above view of the matter, I am of the opinion that the Government is to reconsider the revocation of the option submitted by the petitioners and pass appropriate orders on the same, in the light of the judgment of the Division Bench of this Court in W.A.No.1051/2011 dated 04.08.2011. The Government shall specifically consider the contention raised by the petitioners that though there was a cut-off date of 30.09.2011 fixed in Circular dated 13.09.2011, the petitioners had revoked their options long before such options were accepted. Final orders as directed above shall be passed by the Government after hearing the petitioners within a period of three months from the date of receipt of a copy of this judgment. 11. In the light of the directions issued by this Court, the Government reconsidered the issue and passed Exhibit P10 order, the relevant portion of which reads as under. 7) Government has examined the matter in detail. There is no valid reason for revoking the options of the petitioners and also found that in Writ appeal No.1051/2011 filed by Kerala Agricultural University against revocation of option of Sri Anil **WP(C) NO. 142 OF 2018** **10** Kumar (KVASU) the Court dismissed the appeal upholding that KVASU has no objection in revoking the option and continuance of Sri Anil Kumar in Kerala Agricultural University and there was existing vacancy to accommodate him. Considering the contentions put forth by the Kerala Agricultural University and to avoid further problem raised while solving the seniority of the incumbents with respect to the existing staff of KAU and series of changes required affecting many people after a long lapse of time, the request of the petitioners to revoke their option is rejected. 12. It is evident that while passing the said order, the Government had failed to consider the directions issued by this Court. This Court in unmistakable terms had held that the transfer order in so far as the petitioner is concerned was unsustainable. While holding so, this Court had recognised the fact that the petitioner had revoked the option much before the same was exercised. As the revocation of option was submitted by the petitioner well before the acceptance of the option itself, there cannot be any impediment in accepting the revocation as laid down by the Apex Court in **Bank of India v O.P. Swarnakar** ( 2003 (2) SCC 721 ). In that view of the matter, Exhibit P10 order cannot be sustained. 13. Now the question is as to what is the relief to be granted to the petitioner. During the course of arguments, it was submitted by Sri. Robson Paul, based on the assertions in the counter that if the petitioner has to be **WP(C) NO. 142 OF 2018** **11** accommodated, he would have to be placed junior most so that the interest of persons who have continued in service of the 2nd respondent is not affected. Sri.Sanjith, the learned counsel appearing for the petitioner submitted that the petitioner would have no grievance even if he is placed the junior most. 14. Having considered the entire facts, I am of the view that this writ petition can be disposed of by issuing the following directions. a) Ext.P10 order passed by the 1st respondent will stand quashed. b) There will be a direction to the 3rd respondent to initiate appropriate proceedings to transfer the service of the petitioner to the 2nd respondent in the same grade. Orders shall be passed expeditiously, in any event, within a period of one month from the date of receipt of a copy of this judgment. c) On transfer, the petitioner shall be placed as the junior-most in the cadre so that the interest of those employees who have continued in service of the 2nd respondent is not affected. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ps **WP(C) NO. 142 OF 2018** **12** ## **APPENDIX OF WP(C) 142/2018** PETITIONER'S EXHIBITS: EXHIBIT P1 - TRUE COPY OF THE APPOINTMENT ORDER DATED 18.07.1998 BEARING NO.G.A/F2/14247/98 EXHIBIT P1A TRUE COPY OF THE CIRCULAR DATED 13.09.2011 BEARING NO.GA1/2853/ 2011 - EXHIBIT P2 TRUE COPY OF THE FORM OF OPTION SUBMITTED BY THE PETITIONER - EXHIBIT P3 TRUE COPIES OF THE REPRESENTATIONS DATED 18.01.2012 AND 02.02.2012 SUBMITTED BY THE PETITIONER - EXHIBIT P4 TRUE COPY OF THE FORWARDING LETTER DATED 10.02.2012 BEARING NO.GA1/2853/2011 - EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 16.06.2012 BEARING NO.GA/E2/27917/2010 EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 15.11.2012 - EXHIBIT P7 TRUE COPY OF THE LIST DATED 28.11.2009 BEARING NO.GA/B2/32133/ 03(I) - EXHIBIT P8 TRUE COPY OF THE LETTER DATED 21.07.2012 EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 10.11.2016 IN WPC NO.7639/2013 EXHIBIT P10 TRUE COPY OF THE ORDER DATED 05.05.2017 BEARING NO.G.O(RT) NO.354/2017/F&PD EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 04.08.2011 IN WA NO.1051/2011 **WP(C) NO. 142 OF 2018** **13** EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 01.06.2011 IN WPC NO.12985/2011 EXHIBIT P13 TRUE COPY OF THE INFORMATION SOUGHT UNDER RIGHT TO INFORMATION ACT ISSUED BY PUBLIC INFORMATION OFFICER OF 3RD RESPONDENT RESPONDENTS' EXHIBITS: NIL