IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 WP(C).No. 9674 of 2010(H) ------------------------------------- PETITIONER(S): ----------------------- G.G.MURALEEDHARA KURUP, PROFESSOR, DEPARTMENT OF BIO-CHEMISTRY, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM, RESIDING AT TC NO.2/279(3), MRA 77A, DOCTORS GARDENS, ULLOOR, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM-695 011. BY ADV. SRI.ANIL K.NARENDRAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, SCIENCE AND TECHNOLOGY (A) DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001. 2. UNIVERSITY OF KERALA, THIRUVANANTHAPURAM-695 034, REP.BY ITS REGISTRAR. 3. KERALA STATE COUNCIL FOR SCIENCE TECHNOLOGY AND ENVIRONMENT, SASTHRA BHAVAN, PATTOM.P.O, THIRUVANANTHAPURAM-695 004, REP.BY ITS MEMBER SECRETARY. R1 BY GOVT. PLEADER SMT.N.SUDHA DEVI R2 BY ADVS. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. R3 BY SRI.P.A.AHAMED, SC, K.S.C.T.E , SRI.THOUFEEK AHAMED. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.9674/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE G.O.(P) NO.76/2002/STED DTD. 6.11.02 ISSUED BY THE IST RESPONDENT, ALONG WITH THE MEMORANDUM OF ASSOCIATION AND RULES AND BYE-LAWS OF THE RESPONDENT. P2:- COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE 3RD ANNUAL MEETING OF THE STATE COUNCIL HELD ON 1.4.05. P3:- COPY OF THE NOTIFICATION PUBLISHED BY THE 3RD RESPONDENT IN NEW INDIAN EXPRESS DAILY DTD. 28.7.08. P4:- COPY OF THE LETTER DTD. 24.10.2008 OF THE 3RD RESPONDENT. P5:- COPY OF THE ORDER DTD. 13.1.2009 OF THE 3RD RESPONDENT. P6:- COPY OF THE ORDER DTD. 4.2.09 OF THE 2ND RESPONDENT UNIVERSITY. P7:- COPY OF THE ORDER DTD. 6.2.09 OF THE 3RD RESPONDENT. P8:- COPY OF THE .O.(RT) NO.41/09/S&TD DTD. 22.4.2009, ISSUED BY THE IST RESPONDENT. P9:- COPY OF THE ORDER DTD. 25.4.09 ISSUED BY THE 2ND RESPONDENT UNIVERSITY. P10:- COPY OF THE REPRESENTATION DTD. 11.6.2009 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P11:- COPY OF THE ORDER DTD. 27.4.09 OF THE MEMBER SECRETARY OF THE 3RD RESPONDENT. P12:- COPY OF THE MEMO DTD. 29.4.2009 ISSUED BY THE EXECUTIVE VICE-PRESIDENT OF THE STATE COUNCL TO THE PETITIONER. P13:- COPY OF THE REPLY DTD. 2.5.09 SUBMITTED BY THE PETITIONER TO EXT.P12 MEMO. P14:- COPY OF THE NOTE DTD. 30.7.09 ISSUED BY THE MEMBER SECRETARY OF the 3RD RESPONDENT. P15:- COPY OF THE G.O.(RT) NO.90/09/S&TD DTD. 18.8.09 ISSUED BY THE IST RESPONDENT. P16:- COPY OF THE NOTE DTD. 19.8.09 ISSUED BY THE EXECUTIVE VICE- PRESIDENT OF THE 3RD RESPONDENT. P17:- COPY OF THE G.O.(RT) NO/99/09 /S&TD DTD. 23.0.09 ISSUED BY THE IST RESPONDENT. P18:- COPY OF THE REPRESENTATION DTD. 1.1.2010 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT UNIVERSITY. W.P.(C) NO.9674/2010 P19:- COPY OF THE LETTER DTD. 6.2.2010 OF THE 2ND RESPONDENT UNIVERSITY. P20:- COPY OF THE REPRESENTATION DTD. 15.2.2010 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT UNIVERSITY. P21:- COPY OF THE ORDER DTD. 9.3.2010 OF THE 3RD RESPONDENT ISSUED TO THE PETITIONER. P22:- COPY OF THE G.O.(RT) NO.24/2010/S&TD DTD. 30.3.2010 ISSUED BY THE IST RESPONDENT. P23:- COPY OF THE PETITIONER'S REQUEST DTD. 19.1.2009, SUBMITTED BEFORE THE 2ND RESPONDENT, THROUGH THE PROFESSOR & HEAD OF DEPARTMENT, DEPARTMENT OF BIO-CHEMISTRY. P24:- COPY OF THE RELEVANT EXTRACT OF THE MINUTES (ITEM NO.33/57) OF THE MEETING OF THE SYNDICATE OF THE 2ND RESPONDENT HELD ON 25.3.2009. P25:- COPY OF THE PETITIONER'S APPLICATION DTD. 30.4.2010, SUBMITTED BEFORE THE PUBLIC INFORMATION OFFICER OF THE 2ND RESPONDENT UNIVERSITY. P26:- COPY OF THE LETTER DTD. 22.5.2010 OF THE PUBLIC INFORMATION OFFICER OF THE 2ND RESPONDENT UNIVERSITY, ADDRESSED TO THE PETITIONER./ P27:- COPY OF THE UNIVERSITY ORDER DTD. 30.12.2009, RELIEVING DR.P.R.SUDHAKARAN OF HIS DUTIES AS PROFESSOR IN THE DEPARTMENT OF BIO- CHEMISTRY, WITH EFFECT FROM 31.12.2009. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE REQUEST SUBMTITED BY THE PETITIONER SEEKING TO RELIEVE HIM FROM UNIVERSITY SERVICE. R2(b):- COPY OF THE NON-LIABILITY CERTIFICATE ISSUED BY THE HEAD OF THE DEPARTMENT. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 9674 of 2010-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2010. JUDGMENT The petitioner is a Professor in the Department of Bio-Chemistry in the University of Kerala. He is aggrieved by the cancellation of the order of deputation to the third respondent Organisation and the denial of his request for completing the entire term of deputation. 2. Necessary facts for the disposal of the writ petition are the following: Before the appointment of the petitioner as Professor in the Department of Bio-Chemistry, he was holding the post of Director, School of Bio-Sciences of the Mahatma Gandhi University at Kottayam. The third respondent is an autonomous body under the Government of Kerala and registered under the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act, 1955. Ext.P1 is the copy of the Memorandum of Association and Rules and Bye-laws of the third respondent. Article 4 of the Memorandum of Association provides that the “the State Council shall have a Member Secretary, who shall be a Scientist with research and administrative experience, nominated by Government. Rule 7.1 of the Rules wpc 9674/2010 2 and Bye-laws provides that “a Member Secretary of the State Council shall be nominated by the Government and shall hold office for a period of three years from the date of assumption of office.” 3. The third respondent issued a notification as per Ext.P3 dated 28.7.2008, calling for applications for appointment as Member Secretary to which the petitioner also responded. The notification provides the details with regard to the qualification etc. The petitioner was subsequently interviewed along with other candidates and Ext.P5 is the copy of the order by which he was appointed as Member Secretary for a period of three years. By Ext.P6, the Vice Chancellor accorded sanction subject to ratification by the Syndicate, for accepting the appointment for a period of three years on usual terms and conditions of deputation as prescribed in the Kerala Service Rules. Accordingly, he was relieved of his duties on 4.2.2009 and joined the third respondent's office on 5.2.2009. 4. The appointment was approved by the Government also as evidenced by Ext.P8. When the matter came up before the Syndicate for approval, the Syndicate took a decision, after ratification of the action taken by the Vice Chancellor, that the deputation will be restricted for one year, i.e. till 4.2.2010 and Ext.P9 is the copy of the consequential order issued by the University in that regard. This prompted the petitioner to file an wpc 9674/2010 3 application Ext.P10, to review the decision of the Syndicate. It is pointed out that the Syndicate did not take any decision reviewing the order. The travails of the petitioner commenced therein. 5. The petitioner has got a case that even with regard to the restriction of the period of deputation for a period of one year had a background and according to him, certain developments in the third respondent organisation had paved the way for that. To substantiate the said contentions, the petitioner has produced Exts.P11 to P17. Certain differences with the Executive Vice President has been projected therein. The Government as per Ext.P15 had also granted permission to revert him back to the University which was initially kept in abeyance by Ext.P16 for some period and ultimately the Government reviewed it by Ext.P17. 6. Finally, the petitioner gave a further representation to the University to extend the period of deputation for another period of two years, as per Ext.P18. The University by communication dated 6.2.2010, Ext.P19, directed him to rejoin duty as Professor in the Department of Bio- Chemistry. This is followed by another request made by the petitioner as per Ext.P20 to extend the period of deputation. The third respondent, finally by Ext.P21 reverted him back to the parent department, viz. the University. The Government also passed Ext.P22 cancelling the unavailed wpc 9674/2010 4 portion of the period of deputation beyond 9.3.2010. It is in these circumstances the petitioner has approached this Court seeking various reliefs. 7. Mainly it is contended that the third respondent had appointed the petitioner for a period of three years which was sanctioned by the Government and by the Vice Chancellor. It is pointed out that the denial of the same to the petitioner, that too without any valid reason, will be arbitrary and illegal. It is submitted by the learned counsel for the petitoner Shri Anil Narendran that the decision of the Syndicate is not a reasoned one and there was no immediate necessity or other requirements in the Department of Bio-Chemistry also to recall him back. It is further pointed out that the reasons stated in the counter affidavit of the University are not sufficient to establish any such immediate necessity also. My attention was drawn to the principles stated by the Apex Court in U.O.I Through Govt. of Pondicherry and another v. V. Ramakrishnan and others (AIR 2005 SC 4295) and Union of India and another v. Shardindu {(2007) 6 SCC 276}. 8. The University as well as the third respondent have filed separate counter affidavits. wpc 9674/2010 5 9. The sum and substance of the stand taken by the University in their counter affidavit is that the Syndicate is the appointing authority as far as teachers are concerned and therefore there is nothing arbitrary or illegal in restricting the deputation to one year by the Syndicate. There was shortage of faculty in the Department therefore the Syndicate had forced to cut short the period of deputation in view of the fact that many students are doing research under him and his service in the Department is necessary to take care of such scholars. This decision was communicated to the Government and the third respondent on 25.4.2009 and 29.4.2009 respectively. In para 7 of the counter affidavit, it is mentioned that the University had received Ext.P15 dated 18.8.2009 from the third respondent stating that the services of the petitioner is not needed any more and the Government accorded sanction to terminate the deputation with effect from 19.8.2009 with directions to the petitioner to report before the Registrar. 10. The third respondent in their counter affidavit dated 14.10.2010, has taken the stand that in the light of the stand taken by the University, the petitioner had to be reverted back to the University. The Government also intervened in the matter and there is nothing illegal or arbitrary in the whole wpc 9674/2010 6 episode. 11. Along with the reply affidavit, the petitioner has produced Ext.P27 which is a copy of an order of deputation of another Professor from the very same department to the Central University of Kerala for a period of one year from 31.12.2009, to show that deputation is being permitted by the University in spite of the contrary stand taken against him. 12. The first question is whether the appointment as per Ext.P5 for a period of three years, could have been curtailed by the University. Herein, learned counsel for the petitioner pointed out various aspects based on the decisions of the Apex Court. In Ramakrishnan's case (AIR 2005 SC 4295) in para 32 it was held as follows: “When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance.” The facts of the case show that the order of deputation was under challenge by another person seeking promotion. After examining various aspects including the procedure governing the appointment on deputation, the question whether the curtailment of the period of deputation of the person wpc 9674/2010 7 concerned was considered and the above view was taken. 13. In Shardindu's case [(2007) 6 SCC 276} also the deputation was for a fixed term and practically it was an appointment under the National Council for Teacher Education Act and the Rules therein. The respondent was appointed as Chairperson of NCTE for a period of four years or till he attains the age of 60 years, whichever is earlier. In the light of certain disciplinary proceedings initiated against him in the parent cadre, the deputation was cancelled. After considering various aspects, their Lordships held thus in para 26: “We regret to say that this appointment of the respondent cannot be said to be purely an appointment on deputation basis. Strictly speaking, it is not a deputation post because the incumbent has been selected under the Act and he has not come on deputation as such though loosely it can be said to be on deputation in the sense that since the incumbent holds his lien in the State of Uttar Pradesh and the State of Uttar Pradesh has permitted him to join the post for a fixed period of four years or till he attains the age of superannuation, i.e. sixty years. Since the respondent holds a lien in the State of U.P. therefore, to some extent he can be said to be on deputation but it is not in the sense of deputation as in the case of an all-India service person who is sent on deputation to the Central Government or to other organisation.” wpc 9674/2010 8 Therefore, it was directed that he will be restored back to his post. 14. Even though learned counsel for the petitioner wanted to sustain the deputation of the petitioner to the third respondent organisation for the full period relying upon the facts of the above cases, some distinguishing features will have to be considered. As far as the appointment of the respondent in the case considered by the Supreme Court in Shardindu's case [(2007) 6 SCC 276} is concerned, the same was governed by the provisions of the NCTE Act. On consideration of the various statutory provisions of the Act and Rules, it was held that even though the person was characterised to be a deputationist, it was an appointment for a fixed term. In that view, it was further held that he was entitled to be continued for the fixed period. 15. Herein, it is pointed out by the learned counsel for the petitioner that there was a notification issued by the third respondent, viz. Ext.P3 and there was a selection also by which he was appointed. True that there was a notification and the credentials were examined and an interview was also conducted. The petitioner was serving the University and the application was forwarded through the University. After the appointment was offered by the third respondent, the Vice Chancellor accorded sanction subject to wpc 9674/2010 9 the decision of the Syndicate as per Ext.P6. It is clearly stated in the order that the same will be on usual terms and conditions of deputation and it will be subject to ratification by the Syndicate. Therefore, the Syndicate had the choice to ratify or to put other restrictions also since there cannot be any dispute that the Syndicate is the appointing authority. The Syndicate has in its wisdom, decided to fix the term of deputation as one year as evident from Ext.P9. The petitioner's request to review the order was not evidently granted by the Syndicate. In the meanwhile, the Government also passed an order Ext.P15, even though it was kept in abeyance and subsequently cancelled. In Ext.P15, direction was issued to revert him back to the University. Of course learned counsel for the petitioner submitted that this was a malafide act of the Principal Secretary to the Government who was the Executive Vice President of the third respondent Organisation. What prompted the Government to issue such an order, need not deter this Court from examining the matter in the light of the fact that being a deputationist he can be reverted back to the parent department and the parent department had also put some conditions regarding the period of deputation. Herein, evidently the Syndicate, at the initial point of time allowed the deputation only for a period of one year. The justification sought for by the University wpc 9674/2010 10 is on the plea that his services are required for the students of the University. It is not a case where the petitioner was working in an Administrative department of the University. He was a Professor in the Department of Bio-Chemistry and being a Scientist he had to guide the students also. Even though learned counsel for the petitioner submitted that the reason stated is only a ruse to deny the benefit and that even while working as Member Secretary he was attending the students, while examining the decision of the Syndicate, it cannot be said that the reason stated is so irrational and were shown to curtail the tenure of the petitioner with a malafide intent. 16. The request of the petitioner for extension has also not been responded to by the University. Ultimately, he rejoined to the University itself. Therefore, presently he has joined back in the post of Professor of Bio-Chemistry under the University and the third respondent also, after waiting for some time, probably expecting some positive action by the University, had to issue proceedings reverting him back to the University itself. 17. In that view of the matter, the question is whether the petitioner was automatically entitled for an extension of the period of deputation as wpc 9674/2010 11 contended by the learned counsel for the petitioner. Being a deputationist, the lien of the petitioner is in the parent department and the terms of deputation are clearly covered by the express provisions of the Kerala Service Rules also. Even if the petitioner has projected other circumstances which may or may not have prompted various authorities to curtail his tenure, in the light of the fact that the Syndicate, at the initial stage itself, fixed it only for a period of one year, there is no legal right to continue for three years. His reversion back to the University was depended upon the refusal to grant extension by the University itself. Extension was never granted by the University. The question is whether the University could have been compelled to fix the term as three years when the original order Ext.P5 was issued and when he sought for review/extension of the period. Being the appointing authority, the Syndicate had its own power to fix the period of deputation, especially since he was continuing in a teaching post. Therefore, he did not get an indefeasible right to hold the post of Member Secretary for a period of three years. Otherwise, it will be a case where the parent department will be denuded of its power to fix the period of deputation or call back a person on deputation merely because of the fact that the Organisation like the third respondent was prepared to fix the wpc 9674/2010 12 period as three years. There was nothing to show that even the three year period was fixed with the consent of the University when he was selected. The three year period was fixed as per the Bye-laws of the third respondent alone. In that view of the matter also, I am not persuaded to accept the contentions of the petitioner. According to me, the assertion by the petitioner that he had a legal right to continue for three years, which could not have been curtailed by the University in the light of the original period of appointment as per Ext.P5, cannot be accepted. For all these reasons, the writ petition fails and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/