WA No.707/2019 & connected matters (Inter-University Transfer of Assistant/Non-teaching staff)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **WA.No.707 OF 2019** ## **AGAINST THE JUDGMENT IN WP(C) 31211/2017(B) OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONERS 1 & 3:** **1 REKHA.V.R AGED 44 YEARS D/O. RAMACHANDRAN,VENCHINAPPILLY HOUSE, CHERUVALLOOR P.O, KORATTY, THRISSUR-680 308,WORKING AS ASSISTANT SECTION OFFICER, EXAMINATION WING, M.G.UNIVERSITY** **2 SHOYAB.K.A., AGED 48 YEARS SON OF K.I.ALI, GAZAL,LAKSHMI NAGAR, KAVIL ROAD, PALAKKAD DISTRICT, WORKING AS ASSISTANT SECTION OFFICER, SCHOOL OF BHAVIORAL SCIENCE, MG.UNIVERSITY** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.G.RENJITH SMT.R.S.ASWINI SANKAR SRI.M.R.NANDAKUMAR SRI.T.H.ARAVIND** -:2:- WA No.707/19 & conn.cases ## **RESPONDENTS/RESPONDENTS & PETITIONER NO.2:** - **1 THE PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM-695 001** - **2 MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, MAHATMA GADHI UNIVERSITY, ATHIRAMPUZHA,KOTTAYAM-686 001** - **3 KERALA UNIVERSITY OF HEALTH AND SCIENCE, REPRESENTED BY ITS REGISTRAR,KERALA UNIVERSITY OF HEALTH AND SCIENCE, KULANKUNNATHUKKAVU,THRISSUR-680 596** - **4 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEALTH, SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **5 VIBITHA V.V., VADAKKUM MURI HOUSE, CHOORAKKATTUKARA, AMALANAGAR P.O., THRISSUR-680 556** - **6 INDHU P.M., PANAMPILLY HOUSE, KUTTANELLOOR P.O., THRISUR-680 602** - **7 SAINUDHEEN THODUKAD HOUSE, VAVULLIAPURAM, NEAR ALATHUR, PALAKKAD-678 543** - **8 ROHITH V.M., VENGOTTUPARAMBIL HOUSE, MANNUTHY, NETTISERY,THRISSUR-680 657** WA No.707/19 & conn.cases ## -:3:- **9 SMT. JULIE JAMES, AGED 45 YEARS D/O. T.S.JAMES, THADATHIL PLACKAL HOUSE, KOORKANCHERRY P.O., THRISUR-680 007, WORKING AS ASSISTANT SECTION OFFICER, EXAMINATION WING, M.G.UNIVERSITY** **R1, R4 BY SRI.B.VINOD, SR.GOVERNMENT PLEADER R2 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY R3 BY ADV. P.SREEKUMAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15-012020, ALONG WITH WA NOS.790,894 & 985/2019, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:** WA No.707/19 & conn.cases -:4:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **WA.No.790 OF 2019** ## **AGAINST THE JUDGMENT IN WP(C) 35651/2017(F) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **PRADEEP K.B. AGED 47 YEARS SENIOR GRADE ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM - 686 560** **BY ADV. SRI.M.R.NANDAKUMAR** ## **RESPONDENTS/RESPONDENTS:** - **1 THE MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS, KOTTAYAM - 686 560** - **2 THE REGISTRAR MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM - 686 560** - **3 THE KERALA UNIVERSITY OF HEALTH SCIENCES REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O, THRISSUR - 680 596** WA No.707/19 & conn.cases -:5:- **4 THE REGISTRAR KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O, THRISSUR - 680 596** **R1-2 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY R3-4 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15-012020, ALONG WITH WA.707/2019, WA.894/2019, WA.985/2019, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:** WA No.707/19 & conn.cases -:6:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020/30TH MAGHA, 1941** ## **WA.No.894 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 31211/2017(B) OF HIGH COURT OF KERALA** ## **APPELLANTS/ADDITIONAL RESPONDENTS 5 TO 8:** - **1 VIBITHA.V.V AGED 31 YEARS VADAKKUM MURI HOUSE, CHOORAKKATTUKARA, AMALANAGAR P.O., THRISSUR - 680 556** - **2 INDHU P.M. PANAMBILLY HOUSE, KOTTANELLOOR POST, THRISSUR - 680 662** - **3 SAINUDHEEN THODUKAD HOUSE, VAVULLIAPURAM, NEAR ALATHUR, PALAKKAD - 678 543** - **4 ROHITH V.M. VENGOTTUPARAMBIL HOUSE, MANNUTHY, NETTISSERRY, THRISSUR - 680 657** **BY ADVS. SRI.T.B.HOOD SMT.M.ISHA** WA No.707/19 & conn.cases -:7:- ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 4:** - **1 REKHA V.R. AGED 42 YEARS, D/O. V.V. RAMACHANDRAN, VENCHINAPPILY HOUSE, CHERUVALOOR P.O., KORATTY, THRISSUR - 680 308, WORKING AS ASSISTANT SECTION OFFICER, EXAMINATION WING, M.G. UNIVERSITY.** - **2 JULIE JAMES AGED 43 YEARS** - **D/O. T.S.JAMES, THADATHIL PLACKAL HOUSE, KOORKANCHERRY P.O., THRISSUR - 680 007, WORKING AS ASSISTANT SECTION OFFICER, EXAMINATION WING, M.G. UNIVERSITY.** - **3 SHOYAB K.A. AGED 46 YEARS** - **S/O. K.I.ALI, GAZAL LAKSHMI NAGAR, KAVIL PAD, PALAKKAD DISTRICT, WORKING AS ASSISTANT SECTION OFFICER, SCHOOL OF BEHAVIORAL SCIENCE, M.G. UNIVERSITY, PIN - 678 545** - **4 THE PRINCIPAL SECRETARY DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001** - **5 MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR, MAHATMA GANDHI UNIVERSITY, ATHIRAMPUZHA, KOTTAYAM - 686 001** - **6 KERALA UNIVERSITY OF HEALTH AND SCIENCE REPRESENTED BY ITS REGISTRAR, KERALA UNIVERSITY OF HEALTH AND SCIENCE, MULANKUNNATHKKAVU, THRISSUR - 680 596** WA No.707/19 & conn.cases -:8:- **7 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF HEALTH, SECRETARIAT, THIRUVANANTHAPURAM - 695 001** **R4, R7 BY SRI.B.VINOD SENIOR GOVERNMENT PLEADER R5 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY R6 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15-012020, ALONG WITH WA.NOS.707,790 & 985/2019, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:** WA No.707/19 & conn.cases -:9:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **WA.No.985 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 14829/2018(C) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 6 AND 8:** **1 GAFOORGHAN A., AGED 30 YEARS FORMERLY ASSISTANT, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM DISTRICT - 673 635, NOW WORKING AS ASSISTANT, KERALA UNIVERSITY OF HEALTH AND SCIENCE, MULAMKUNNATHUKKAVU, THRISSUR - 680 596.** **2 KIRAN JOSE, FORMERLY ASSISTANT, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM DISTRICT - 673 635, NOW WORKING AS ASSISTANT, KERALA UNIVERSITY OF HEALTH AND SCIENCE, MULAMKUNNATHUKKAVU, THRISSUR - 680 596.** **BY ADVS. SRI.T.B.HOOD SMT.M.ISHA SRI.AMAL KASHA** -:10:- WA No.707/19 & conn.cases ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 5 & 7:** - **1 SUBRAHMANIAN V.P., ASSISTANT (SENIOR GRADE), UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM DISTRICT - 673 635.** - **2 SMITHA K.M., ASSISTANT (SENIOR GRADE), UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM DISTRICT - 673 635.** - **3 SUMANA T.V., ASSISTANT, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM DISTRICT - 673 635.** - **4 MEGHA M.V., ASSISTANT (SENIOR GRADE), UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM DISTRICT - 673 635.** - **5 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **6 UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM DISTRICT - 673 635, REPRESENTED BY ITS REGISTRAR.** - **7 THE REGISTRAR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM DISTRICT - 673 635.** - **8 KERALA UNIVERSITY OF HEALTH AND SCIENCE, MEDICAL COLLEGE P.O., MULAMKUNNATHUKKAVU, THRISSUR - 680 596, REPRESENTED BY ITS REGISTRAR.** WA No.707/19 & conn.cases -:11:- - **9 THE REGISTRAR, KERALA UNIVERSITY OF HEALTH AND SCIENCE, MEDICAL COLLEGE P.O., MULAMKUNNATHUKKAVU, THRISSUR - 680 596.** **10 NADEETHA KAMARUDHEEN, ASSISTANT, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM DISTRICT - 673 635.** **R1-4 BY ADV. SMT.N.SANTHA R1-4 BY ADV. SRI.V.VARGHESE R1-4 BY ADV. SRI.PETER JOSE CHRISTO R1-4 BY ADV. SRI.S.A.ANAND R1-4 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R5 BY SRI.B.VINOD SR.GOVT.PLEADER R6 & 7 BY ADV. P.C SASIDHARAN R8-9 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15-012020, ALONG WITH WA.707/2019, WA.790/2019, WA.894/2019, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:** WA No.707/19 & conn.cases -:12:- ## **J U D G M E N T** [ WA.707/2019, WA.790/2019, WA.894/2019, WA.985/2019 ] Dated this the 19[th] day of February, 2020 ## _**Shaffique, J.**_ These appeals arise from a common judgment dated 31/1/2019 in WP(C) No. 25387/2017 and connected cases. WA No. 707/2019 has been filed by petitioners 1 and 3 in WP(C) No. 31211/2017. The writ petition was filed challenging Ext.P4 order dated 23/9/2017 issued by the Registrar of Mahatma Gandhi University by which it was informed that inter- University transfer to the Cochin University of Science and Technology is available only to Assistants who are appointed through Public Service Commission (PSC). WA No. 894/2019 has been filed by respondents 5 to 8 in WP(C) No. 31211/2017. 2. WA No. 790/2019 has been filed by the petitioner in WP(C) No. 35651/2017. The petitioner also challenged Ext.P5 order dated 23/9/2017 which is impugned in WP(C) No. 31211/2017 and also Ext.P6 dated 26/9/2017, a seniority list WA No.707/19 & conn.cases -:13:- prepared in respect of those Assistants who were appointed through PSC. 3. WA No. 985/2019 has been filed by respondents 6 and 8 in WP(C) No. 14829/2018. The said writ petition has been filed by certain Assistants of Calicut University challenging Exts.P2 and P3 in so far as the University of Calicut has also issued an order implementing the resolution on the basis of instructions received from Kerala University of Health Sciences (hereinafter referred to as 'Health University') that inter-University transfer of Assistants from Calicut University to the Health University will be done only from the list of Assistants appointed through PSC. Ext.P3 in the said case is the instruction sent by the Registrar of Health University on 2/6/2017 _inter alia_ stating that in so far as appointment to the post of non-teaching staff in the Health University could be made only through PSC, the Governing Council had taken a decision on 12/4/2017 that transfer in the post of Assistants from other Universities shall be considered only if those persons were appointed by PSC. 4. The Health University was constituted in terms of the Kerala University of Health Sciences Act, 2010 (hereinafter WA No.707/19 & conn.cases -:14:- referred to as the '2010 Act') and the appointments to the service of the Health University is to be made through the Kerala Public Service Commission in terms of S.6(xv) of Chapter II of the 2010 Act. The Government took a decision to permit inter-University transfers since appointments in other Universities were also entrusted to PSC. The Governing Council of the University had taken a decision that inter-University transfer would be permitted on a reciprocal basis in the case of Assistants who are recruited by PSC. The decision of the respective Universities, in which the petitioners were working, came to be challenged before this Court _inter alia_ contending that it is not open for the University to prescribe that PSC recruitees alone will be entitled to interUniversity transfer. The learned Single Judge after considering the aforesaid contention and placing reliance upon an affidavit filed by the Government held that a discrimination based on the source of recruitment would offend Art.14 of the Constitution. On the basis of the representation of the counsel for PSC recruitees who were forced to choose other Universities, that they should be given a chance based on their option to switch over to the Health University by way of transfer, it was observed that, it is for the WA No.707/19 & conn.cases -:15:- ## Government to decide the matter as a policy decision and accordingly issued the following directions:- _“Therefore, it is appropriate, the Chief Secretary of State convene a meeting involving Registrars of Health University and other Universities and also Secretaries of Higher Education as well as Health Department and take a final decision in the matter and issue policy guidelines for permitting InterUniversity Transfer. Appropriate decision shall be taken within two months. The claim of petitioners would depend upon such decision of the Government. The inter transfer already allowed would be subject to such decision”._ 5. The respondents who had preferred WA Nos.894/2019 and 985/2019 were persons who had exercised their option for being transferred to the Health University and were recruited through PSC. Their contention is that in so far as Section 6(xv) of the 2010 Act provides that recruitment to the non-teaching staff shall be through the PSC and Statute 96 in Part II of Chapter IV of the Kerala University of Health Sciences First Statutes, 2013 provides such a mandate, the respective Universities were justified in calling for option from the Assistants for interUniversity transfer only from among those who had been recruited by PSC. It was further argued that the Government Order dated 9/5/2017 was issued by the Government only to WA No.707/19 & conn.cases -:16:- facilitate inter-University transfer of Assistants who had not satisfactorily completed their probation. lt is argued that, by filing an affidavit, Government cannot enlarge the scope of the said Government Order dated 9/5/2017. 6. In the appeal filed by the writ petitioners, their contention is that there was no necessity for the learned Single Judge to have directed the Government to further consider the matter in so far as the Government had already made their position clear in the affidavit filed before the Court. It is further argued that when the learned Single Judge have already arrived at a conclusion that there is violation of Article 14, the writ petitions ought to have been allowed and there was no reason to direct the Government to consider the matter afresh. Learned counsel for the Health University also submitted that the University had taken a conscious decision to engage only those persons recruited by PSC in view of the specific provision under the Statute, that the appointments can be made only through PSC. 7. Section 6(xv) of the 2010 Act reads as under:- _“6. Powers and functions of the University: The powers and_ WA No.707/19 & conn.cases -:17:- _functions of the University shall be the following, namely:xxxx_ _(xv) to create non-teaching, skilled, administrative, ministerial and other posts and prescribe through Statutes pay scales for such posts, with prior approval of the State Government and to fix the method of appointment and to make appointments thereto;_ _Provided that the recruitment to the non-teaching staff other than the officers of the University mentioned in clause 9, shall be through Kerala Public Service Commission._ 8. Statute 96(1) of Part II in Chapter IV of the First Statutes reads as under:- ## _“_ _**96. Recruitment to posts:**_ _(1) The recruitment to posts of non-teaching staff shall be made through Kerala Public Service Commission.xxx”_ 9. Now coming to the Government Order GO(MS) No.123/2017/HEDN dated 9/5/2017, which is produced as Ext.P2 in WP(C) No.35651/2017, the order came to be issued when selection was being made for appointment of persons in the nonteaching posts in various Universities through PSC. The PSC conducted examinations and a ranked list was prepared. The persons who were being appointed had opted for different Universities. They have been requesting for transfer to other Universities and accordingly, Government had decided that even WA No.707/19 & conn.cases -:18:- without declaration of probation, on the basis of service seniority and option, persons who were appointed in the post of Assistant/Computer Assistant will be entitled for inter-university transfer. Apparently, this Government Order applies only to persons who had been selected and appointed through PSC and therefore this Government Order may not apply to the facts involved in the present cases. 10. In the cases on hand, we are only concerned with a short question as to whether the insistence by the Health University that only PSC recruits can be transferred to the Health University amounts to violation of Art.14 of the Constitution of India. The learned Single Judge had observed that there cannot be a classification from among the persons who had already been recruited and appointed as Assistants in various Universities. 11. Apparently, it is based on the instructions given by the Health University that the other Universities had requested for option from Assistants who were recruited by PSC and a seniority list was prepared based on the same. The question is whether such a request made by the Health University amounts to WA No.707/19 & conn.cases -:19:- violation of Art.14 of the Constitution of India. It is apparent from proviso to S.6(xv) that recruitment to the non teaching staff shall be made through PSC. Therefore, the Health University insisting for such appointments being made from persons being recruited through PSC cannot be termed as violation of Art.14 of the Constitution. As far as the Assistants employed by other Universities are concerned, some of them had been recruited through PSC and the others were recruited directly by the University. Therefore, there were two sources of recruitment as far as other Universities are concerned. Recruitment through PSC started only later when the Government insisted that all appointments in respect of non teaching staff in the Universities shall be made through PSC. 12. Inter-University transfer had been permitted by the Government as a policy matter. Therefore, it is for the Government to take a view regarding the manner in which interUniversity transfer should take place. It is settled law that transfers and affording options are the exigences and incidence of service for which there is no vested right for an employee. In _**S.G.Jaisinghani v. Union of India**_ (AIR 1967 SC 1427), the WA No.707/19 & conn.cases -:20:- Apex Court had occasion to hold in a matter relating to appointment and promotion that there can be a reasonable classification of the employees for the purpose of appointment or promotion. The concept of equality in the matter of promotion can be predicated only when the promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on differences between the said two sources, and the said differences have a reasonable relation to the nature of office or the offices to which recruitment is made, the said recruitment can legitimately be sustained on the basis of a valid classification. The aforesaid law has been further reiterated by the Constitution Bench in _**Govind Dattatray Kelkar v. Chief Controller of Imports & Exports**_ (AIR 1967 SC 839). 13. Though in the cases on hand, the Assistants who were working in the Universities are recruited under two different sources, it cannot be stated that the said difference had a reasonable relation to the nature of office. If the Government as a policy decision wants to give the benefit of inter-University transfer to all the Assistants irrespective of the source of WA No.707/19 & conn.cases -:21:- recruitment, the said decision has to be given primacy over the decision of the Health University. Under such circumstances, when the Government had made it clear in their affidavit that right to exercise option for inter-University transfer has to be given to all the Assistants irrespective of their source of recruitment, we cannot find fault with the said approach of the Government. Other than submitting an affidavit, no policy decision in that regard has been taken by the Government and therefore there was justification on the part of the learned Single Judge to have directed the matter to be considered at the Government level. In the above circumstances, we do not think that any grounds are made out for interference. Appeals are dismissed. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** **Sd/-** ## **MARY JOSEPH** Rp **JUDGE** WA No.707/19 & conn.cases -:22:- The words **“Cochin University of Science and Technology** ” appearing in the 7[th] line of 1[st] paragraph of the common judgment dated 19.2.2020 in WA Nos.707/2019, 790/2019, 894/2019 and 985/2019 **is suo motu corrected** and it may be read as “ **Kerala University of Health and Science** ”, as per order dated 9.3.2020 in W.A.No.707/2019 & Con.Cases. Sd/- **Deputy Registrar** Rp