IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 WP(C).No. 24069 of 2009(C) --------------------------------------- PETITIONER(S): ----------------------- BABITHA.M, PROFESSIONAL ASSISTANT, GRADE-11, COCHIN UNIVERSITY SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY PO, KALAMASSERY,ERNAKULAM. BY ADV. SRI.MANOJ RAMASWAMY RESPONDENT(S): ------------------------- 1. UNIVERSITY OF KERALA REPRESENTED BY THE REGISTRAR, UNIVERSITY OF KERALA THIRUVANANTHAPURAM. 2. THE VICE CHANCELLOR UNIVERSITY OF KERALA THIRUVANANTHAPURAM. 3. COCHIN UNIVERSITY SCIENCE AND TECHNOLOGY, REPRESENTED BY THE REGISTRAR COCHIN UNIVERSITY SCIENCE AND TECHNOLOGY COCHIN UNIVERSITY PO, KALAMASSERY, ERNAKULAM. 4. JAYASREE V PROFESSIONAL ASSISTANT GRADE -11,COCHIN UNIVERSITY SCIENCE AND TECHNOLOGY COCHIN UNIVERSITY PO, KALAMASSERY, ERNAKULAM. R1 & R2 BY ADV. SRI.M.RAJAGOPALAN NAIR R3 BY ADV. SRI.K.S.MOHAMMED HASHIM,SC,CUSAT,COCHIN R4 BY ADV. SRI.R.SREERAJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24069/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE OFFICE ORDER ISSUED BY THE DEPUTY LIBRARY DTD. 9.1.07. P2:- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR INTER- UNIVERSITY TRANSFER DTD. 12.5.2008. P3:- COPY OF THE APPLICATION SUBMITTED ON 2.6.08. P4:- COPY OF THE PROVISIONAL GRADATION LIST OF LIBRARY STAFF AS ON 1.7.07 OF THE IST RESPONDENT UNIVERSITY. P5:- COPY OF THE PETITIONS SUBMITTED BEFORE THE 2ND RESPONDENT WITH COPY TO THE IST RESPONDENT DTD. 25.7.09. P6:- COPY OF THE ORDER NO.AD.G3/2009 DT. 18.8.09 ISSUED ON BEHALF OF THE IST RESPONDENT. P7:- COPY OF THE ORDER NO.AD.AV.2/IUT/2009 DTD. 18.8.09 ISSUED BY THE IST RESPONDENT. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE CONDITIONS STIPULATED IN STATUTE A4 A. R1(b):- COPY OF THE LETTER DTD. 6.5.08 SENT BY REGISTRAR, UNIVERSITY OF KERALA TO REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY. R1(c):- COPY OF THE LETTER DTD. 11.6.2008 SENT BY REGISTRAR UNIVERSITY OF KERALA, TO REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY. R1(d):- COPY OF THE GOVERNMENT ORDER DTD. 17.6.2009. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.24069/2009-C ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 7th day of December, 2010 J U D G M E N T The dispute between the petitioner and the fourth respondent for seniority is the question to be decided herein. 2. Both of them were employed under the Kerala University and they sought inter-University transfer to the third respondent Cochin University of Science and Technology which was granted by the Kerala University on reciprocal basis. The petitioner wants to retain her seniority in the Kerala University above the fourth respondent who joined the third respondent University earlier than the petitioner, consequent to the inter- University transfer. 3. The details with regard to the petitioner and the fourth respondent are the following:- The petitioner entered the service of the Kerala University in the post of Laboratory Assistant on 31/12/2005. She was promoted to the post of Technical Assistant on 06/03/2007 and continued there in the post W.P.(C). No.24069/2009 -:2:- till she was transferred to the Kerala University Study Centre at Alappuzha. 4. The petitioner applied for an inter-University transfer as per application dated 12/05/2008 (Ext.P2). As required by the University, she submitted an application in the proforma prescribed as per Ext.P3 dated 02/06/2008. The fourth respondent is junior to the petitioner and she entered service on 04/12/2006. The fourth respondent had applied for an inter- University transfer on 26/02/2008. It is the case of the petitioner that the petitioner filed Ext.P5 representation for consideration of her request prior to that of the fourth respondent. But in the meanwhile, the fourth respondent was relieved on 17/08/2009 and she joined the third respondent University on 18/08/2009. The allegation raised is that the relief of the petitioner was purposefully delayed so as to ensure the fourth respondent to join the third respondent University ahead of the petitioner. Ext.P6 is the order by which the petitioner was ordered to be transferred to the third W.P.(C). No.24069/2009 -:3:- respondent-University. Therein, she is described as 'second senior in the list of employees to be transferred to Cochin University of Science and Technology'. This is under challenge in this writ petition. Ext.P7 is the order by which the petitioner was relieved from the service of the University. The orders Exts.P6 and P7 will show that the sanction is accorded for inter-University Transfer against Shri Sajeev T., Professional Assistant Grade-I of the Cochin University of Science and Technology on a reciprocal basis with effect from 18/08/2009. 5. The respondents have filed separate counter affidavits. The learned counsel for the petitioner submitted that the petitioner was entitled to retain the seniority in the Kerala University and the applications of the petitioner and the fourth respondent ought to have been considered in the light of the seniority position which they were having and, therefore, there was gross violation of the norms. It is pointed out that even Ext.R1(d) order of the Kerala University will show that service seniority has to be W.P.(C). No.24069/2009 -:4:- reckoned. It is further pointed out that even though in Ext.R1(d) in para (3) it is specified that the staff who have already applied for inter-University transfer before 2009 are exempted from the norms, no separate orders according such exemptions have been passed. 6. The learned Standing Counsel for the Kerala University explained that the inter-University transfers are effected on the basis of seniority of the application based on the conditions stipulated in Statue 14A produced produced as Ext.R1(a) along with the counter affidavit of the first respondent. Going by Ext.R1(a), the posting of employees on transfer from other Universities may be allowed only on reciprocal basis. It is pointed out that the fourth respondent had applied for inter-University transfer to Cochin University of Science and Technology on 26/02/2008 whereas the petitioner had applied only on 02/06/2008 and, as per the norms followed, the fourth respondent was the first employee to be transferred and the petitioner the next employee to be transferred. The counter affidavit shows the following aspects:- W.P.(C). No.24069/2009 -:5:- On getting the applications from the petitioner and the fourth respondent, the Kerala University addressed the Cochin University of Science and Technology obviously to get response on the reciprocal scheme. Ext.R1(b) is the copy of the communication dated 06/05/2008 from the Registrar of Kerala University to the Registrar of Cochin University of Science and Technology informing about the request of the fourth respondent for transfer to the said University and further seeking information whether any employee of the same category in that University is willing to be transferred to University of Kerala. Ext.R1(c) is the communication similarly issued to the Cochin University of Science and Technology, on receipt of application for inter- University transfer from the petitioner, seeking information whether any employee of the same category in that University is willing to be transferred to University of Kerala. Therefore, it is not a case where the Kerala University is considering the claim for transfer without waiting for replacement of the parties concerned. Paragraph (7) of the counter affidavit furnishes the details regarding the relief of W.P.(C). No.24069/2009 -:6:- the petitioner and the fourth respondent, which is extracted below:- “(7). In response to the letter dated Ad.A5/175/IUT/2001 dated 05/08/2009 from the Registrar, CUSAT, the willingness of the 4th respondent was intimated to the CUSAT on that day itself. Similarly the willingness of the petitioner dated 13/08/2009 to be relieved from this University on 17/08/2009 was intimated to the Registrar, CUSAT on 13/08/2009 itself. The Registrar informed that it is convenient to relieve Prasanth V. (the employee in lieu of 4th respondent) on 17/08/2009 A.N so as to join the University of Kerala on 18/08/2009. Hence, the fourth respondent was relieved on 17/08/2009 A.M. Likewise as per letter No.Ad.A5/175/IUT/2001 dated 17/08/2009 the Registrar, CUSAT informed that it is convenient to relieve Shri T.Sajeev, Professional Assistant on 18/08/2009 so as to join University of Kerala on W.P.(C). No.24069/2009 -:7:- 19/08/2009. Even though petitioner was willing to be relieved from University of Kerala on 17/08/2009 itself, Shri Sajeev T. was willing to be relieved from CUSAT only on 18/08/2009 A.N. Hence, the petitioner was relieved on 18/08/2009. Hence no undue urgency or delay has occurred in either cases.” 7. It is further pointed out that the same method was followed in the case of Smt.Susan Chacko and Smt.Resmi Sara Thomas who opted for inter- University transfer to Mahatma Gandhi University and that, as per the then norms prevalent in the University of Kerala for inter-University transfer of employees who have applied before 2009, seniority of application is taken into consideration. 8. The only question is whether therefore, the University had violated any settled norms with regard to the grant of the request for transfers. Evidently, the consideration of the applications depended upon any response of the Cochin University of Science and W.P.(C). No.24069/2009 -:8:- Technology for reciprocal transfer. Therefore, persons had to be identified for replacing the petitioner and the fourth respondent on the basis of their willingness. If going by the facts pleaded by the Kerala University in paragraph (7) of the counter affidavit, the relief of both the petitioner and the fourth respondent depended upon the willingness of the persons who had been transferred in their place. Now, all of them have joined the respective Universities and the dates of joining service alone will be the criteria for considering their seniority in the respective Universities. Therefore, any re-arrangement, if at all that is sought for by the petitioner, cannot be effectively made at this stage since all these four persons have joined in the respective Universities. The petitioner does not rely upon any particular provision of the Statute, Regulation or any other University Order to claim that the seniority in service is the only criteria as far as consideration of the application for transfer also. As pointed out by the Kerala University in their counter affidavit, they were treating the application of employees who have applied W.P.(C). No.24069/2009 -:9:- for inter-University transfers before 2009, on the basis of the norms prevailed at that time i.e. seniority of the application. Such a norm cannot be said to be arbitrary in the light of the various facts stated already. Evidently, both of them were working in different stations, viz., the fourth respondent was in Thiruvananthapuram and the petitioner in Alappuzha. Therefore, the reciprocal arrangement had to be thought of by the Kerala University and the Cochin University and then only the arrangement could have been sanctioned also. In that view of the matter, I do not find any reason to take the view that the arrangement made by the first respondent-University is so arbitrary in the matter. Evidently, all of them have joined the service as noted already. Therefore, setting aside the orders at this stage will result in certain consequences to persons who have joined in the place of the petitioner and the fourth respondent. They are not parties to the writ petition also. 9. For all the above reasons, I do not find any reason to interfere with the orders issued, to grant W.P.(C). No.24069/2009 -:10:- relief to the petitioner. The writ petition is therefore dismissed. No costs. (T.R. Ramachandran Nair, Judge.) ms