Writ Appeal No. 1460 of 2020, Kerala High Court

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942** **WA.No.1460 OF 2020** **AGAINST THE JUDGMENT DATED 12.10.2020 IN WP(C) 14722/2020 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 3:** - **1 KERALA AGRICULTURAL UNIVERISITY KAU P O, VELLANIKKARA, THRISSUR - 680656, REPRESENTED BY REGISTRAR.** - **2 VICE CHANCELLOR KERALA AGRICULTURAL UNIVERSITY, KAU PO, VELLANIKKARA, THRISSUR - 680656,** - **3 EXECUTIVE COMMITTEE OF THE KERALA AGRICULTURAL UNIVERSITY, KAU P.O, VELLANIKKARA, THRISSUR - 680656, REPRESENTED BY ITS CHAIRMAN, THE VICE CHANCELLOR OF THE UNIVERSITY.** **BY SRI. S. SREEKUMAR (SR.) BY ADV. SMT.SURYA BINOY** ## **RESPONDENTS/PETITIONER:** **DR. MEERA V. MENON, AGED 57 YEARS, W/O..K.C. RAGHAVAN, PROFESSOR, DEPARTMENT OF AGRONOMY, COLLEGE OF HORTICULTURE, VELLANIKKARA, VELLANIKKARA P O, THRISSUR DISTRICT, PIN - 680656, RESIDING AT THEJASWINI, NELLANKARA, NETTISSERY PO, THRISSUR DISTRICT, PIN - 680651.** **BY SRI. KURIAN GEORGE KANNANTHANAM (SR.) ADV. SRI.BABU JOSEPH KURUVATHAZHA BY ADV. SRI.M.G.SREEJITH** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2021, THE COURT ON 10-02-2021 DELIVERED THE FOLLOWING:** WA No.1460/2020 ## -:2:- ## **J U D G M E N T** Dated this the 10[th] day of February, 2021 ## _**Shaffique, J.**_ The appeal is filed by the Kerala Agricultural University and its officers challenging judgment dated 12/10/2020 in WP(C) No. 14722/2020. The writ petition is filed by the respondent herein challenging Ext.P6, an order of transfer by which the petitioner who was working as Professor in the department of Agronomy at College of Horticulture, Vellanikkara, Trichur has been transferred and posted as Associate Professor (Agronomy) at the College of Agriculture, Padannakkad. One of the main contentions urged by the petitioner was that as per the transfer norms, she should not have been transferred as she would be retiring during November, 2022 and she was about to attain 58 years of age. According to her, other Professors with several years of service are working in the very same department and there was no reason for her to be transferred. 2. In the counter affidavit filed by the University, it is contended that after issuing Ext.P6 order, an erratum order dated WA No.1460/2020 -:3:- 17/7/2020 has been issued which is produced as Ext.R1(a) correcting Ext.P6 order and posting the petitioner as Professor (Agronomy) by upgrading one vacant post of Associate Professor (Agronomy). Further it is contended that the other Professors who were working in various departments were heading several projects and therefore, they could not be allocated to Padannakkad. It is their further case that there were serious concerns regarding the functioning of All India Coordinated Research Project (AICRP) on Weed Management under the petitioner 's leadership. A letter dated 1/7/2020 was received from the Directorate of Weed Research, ICAR stating various issues relating to the Weed Management Project. They sought for immediate action to rectify the deficiency. Copy of e-mail dated 1/7/2020 has been produced as Ext.R1(h) and the communication produced along with the same is produced as Ext.R1(i). It is stated that the writ petitioner who was handling the weed management project did not take appropriate action in time and therefore, in order to take remedial action, a change of leadership was necessary and this also was a reason for exercising the administrative discretion to transfer the petitioner. WA No.1460/2020 ## -:4:- She was working in Vellanikkara for more than 20 years and therefore, being a transferable job, the University was entitled to transfer her and there is no malafides or extraneous considerations in the matter. 3. Learned Single Judge after evaluating the respective contentions and having observed that the transfer was punitive in nature, allowed the writ petition setting aside Ext.P6. 4. While impugning the aforesaid judgment, learned senior counsel Sri.S.Sreekumar appearing for the petitioner had contended that the transfer was necessitated on account of administrative exigencies especially in the light of Exts.R1(h) and R1(i) letters which are self explanatory. It is pointed out that when the petitioner was in charge of weed management project, as nothing has been done and it being a project of AICRP and they were not satisfied with the implementation of the project, necessary changes will have to be effected by the University. It is further pointed out that the norms cannot have any application when the order of transfer had been issued on account of administrative exigencies. Specific reference had been made to paragraph 6 of the counter affidavit to point out the fact that the WA No.1460/2020 -:5:- other Professors mentioned in the writ petition could not be transferred. Learned counsel submits that the order of transfer was not punitive in any nature as found by the learned Single Judge. He also placed reliance on a Division Bench judgment of this court in _**State of Kerala v. Rajan**_ (1989 (2) KLT 666), in which, after referring to long line of judgments, Division Bench of this Court held that transfer is an incidence of service and the Government servant has no legal right in this behalf. The guidelines for transfer are not statutory and are only meant for guidance of the transferring authority. It is not exhaustive and it is open to effect transfers taking into consideration the circumstances not covered by the guidelines. 5. On the other hand, learned senior counsel Sri.Kurian George Kannanthanam appearing on behalf of the respondent/writ petitioner submitted that apart from violation of the norms, there is clear irregularity on the part of the University in transferring the petitioner. It is pointed out that the order of transfer was issued at the instance of the Vice Chancellor as evident from Ext.P6. But Ext.P6 would indicate that the transfer from the post of Professor is to the post of Associate Professor. WA No.1460/2020 -:6:- Though by Registrar's order dated 17/7/2020, the said order of transfer was rectified and the petitioner is posted as Professor (Agronomy) at College of Agriculture, Padannakkad, the Registrar has no jurisdiction to upgrade one vacant post of Associate Professor (Agronomy) as Professor (Agronomy). Reference is made by the learned counsel to the powers of Registrar under the Kerala Agricultural University Act, 1971 and the statutes framed thereunder and it is argued that the Registrar did not have the power to issue Ext.R1(a). Therefore, Ext.P6 order virtually reverting the petitioner to the post of Associate Professor is a punitive action. Learned counsel therefore supported the stand taken by the learned Single Judge. It is further pointed out that in terms of Ext.R1(g), the necessity was only to appoint Assistant Professor/Senior Faculty Member against the sanctioned post. Ext.R1(g) order does not apply to the petitioner. 6. There is no quarrel about the proposition that the transfer guidelines or norms has no statutory force. Apparently, the petitioner is working in a transferable post and it is open for the University to transfer her on administrative exigencies. Under normal circumstances, the Courts shall not interfere with WA No.1460/2020 -:7:- an order of transfer unless the transfer order is issued in violation of the statutory rules or with malafides. Apparently in this case, no malafides had been imputed on the appellants or any officer of the appellants. 7. From the factual circumstances available in the case, it is rather clear that one of the reasons for transferring the petitioner was based on the letter issued by the Principal Scientist, AICRP on Weed Management. The said letter reads as under: _“Sir,_ _In reference to the subject cited above, it is to say that a coordinating centre of AICRP on Weed Management in KAU, Thrissur has been in operation since 1/4/1990, however, in the recent past it is not performing as expected. In this context a letter of competent Authority at ICAR-DWR, Jabalpur is attached with this mail for your kind information and suitable action.”_ 8. The letter enclosed was from ICAR, Directorate of Weed Research dated 1/7/2020. The said letter produced as Ext.R1(i) reads as under; _“In reference to the subject cited above, your attention is invited towards continuous under performance of AICRP on Weed management centre being operated under the leadership of Dr.Meera V. Menon, Principal Investigator and Prof. (Agronomy), Dept. of Agronomy and Dr.Sreelakshmi K., Co-Investigator & Assistant Professor in your esteem_ WA No.1460/2020 ## -:8:- _University. The QRT team was not happy with the progress and maintenance of lab, field facilities, experiments and way of presentation of research work etc._ _It has been observed from quite some time that this centre is taking up research and extension activities very casually. During last two years no significant technology/technique/practices have been developed for inclusion in the package of practices for Kerala State (see Annexure-1) Annual Reports of the last two years (please refer Annual Report 2018-19, 2019-20) are also in very poor shape._ _Apart from this, when a proposal for the period of 2020-25 was sought for developing infrastructure facilities at KAU, Thrissur to conduct fruitful weed management research, the centre replied in one-line mail (enclosed as Annexure-II) that there is no requirement of any equipment. This indicates the apathy of the PI towards the project activities. Seeing the nil requirement, the PI was further persuaded telephonically by the PC Unit Jabalpur to submit a revised proposal, so that the KAU, centre does not miss the opportunity to improve the weed management research infrastructure in future (2021-25). However, this Directorate has not yet received any meaningful proposal from the PI._ _These issues are viewed seriously. I am afraid that if it continues like this, it will adversely affect the Weed Management project at your university._ _These are few facts that need immediate attention and action at your end. Kindly look into the mater before the situation slips out of hand, in the interest of the project.”_ Ext.R1(i) letter had been issued to the Vice Chancellor of the University. Therefore, it was necessary for the University to take WA No.1460/2020 -:9:- appropriate remedial measures to ensure that the weed management in the University maintains the standard of expectation. According to the petitioner, she was entrusted with the duty of weed management only as per order dated 21/11/2018 and the contention urged by her was that Ext.R1(i) was with reference to the period 2014-15. In Ext.R1(h), it is stated that though the weed management project was in operation since 01/04/1990, it was not performing as expected “in the recent past” . Even in Ext.R1(i), reference is made to the annual reports of 2018-2019 and 2019-2020 and it is stated to be in “very poor shape”. It is further stated that with reference to weed management research, the centre did not ask for any equipment and though a revised proposal was solicited, the Directorate did not receive a meaningful proposal. When it is admitted that the petitioner was in charge of weed management studies, its failure can only be attributed to her. Therefore, if the University had taken action pursuant to Exts.R1(i) and R1(h), it cannot be termed as punitive in any manner. Learned Single Judge was therefore not justified in arriving at such a conclusion. According to us, the transfer of the petitioner was due to WA No.1460/2020 ## -:10:- administrative exigences and there is no malafides in such a transfer. 9. The argument that the Registrar has no powers to issue Ext.R1(a) cannot be sustained. The power of the Registrar is specified under Section 30 of the Kerala Agricultural University Act and sub-section (7) reads as under: ## _“_ _**30. The Registrar** :xxxx_ _(7) The Registrar shall perform such other duties as may be prescribed, or which may be assigned by the Executive Committee or the Vice-Chancellor.”_ 10. The petitioner does not have a case that the Registrar had not been assigned with such powers by the Executive Committee or the Vice Chancellor as mentioned in Section 30(7). No such ground had been raised at any point of time during the pendency of the writ petition. Learned senior counsel for the writ petitioner submits that Ext.R1(a) was produced along with the counter affidavit. Even then, in the reply filed by the petitioner, no contention had been raised to indicate that the Registrar was not given such powers. The only contention urged is that Registrar had no jurisdiction to upgrade a post. Petitioner was given the post of Professor under the Career Advancement Scheme. When she is posted at Padannakkad, necessarily an WA No.1460/2020 -:11:- equivalent post has to be given to her. Registrar can exercise all powers that are assigned to him. Insofar as a contention has not been raised that the Registrar had not been assigned with any such power, such a ground cannot be sustained. 11. Having regard to the factual aspects involved in the matter and the settled legal position, we are of the view that the learned Single Judge was not justified in allowing the writ petition. We are of the view that Ext.P6 read with Ext.R1(a) cannot be set aside as punitive. In the result, this appeal is allowed. We set aside the judgment of the learned Single Judge and the writ petition stands dismissed. **Sd/-** **A.M.SHAFFIQUE** **JUDGE** **Sd/-** Rp **GOPINATH P. JUDGE** WA No.1460/2020 -:12:- ## **APPENDIX** ## **APPELLANTS' EXHIBITS: NIL** ## **RESPONDENT'S EXHIBITS:** **ANNEXURE-R1 A TRUE COPY OF THE LETTER NO.AGRON 1/2020 DATED 01/10/2020**