Thahsin. Z. Hussain vs Calicut University
2021 Latest Caselaw 16619 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
                     WP(C) NO. 11962 OF 2021
PETITIONER/S:
          THAHSIN. Z. HUSSAIN,AGED 33 YEARS
          D/O.ZAKKIR HUSSAIN, PATHODY HOUSE, PONNANI,
          MALAPPURAM-679 577 (WORKING AS ASSISTANT PROFESSOR
          IN ENGLISH IN MES COLLEGE, MAMBAD).

            BY ADV M.S.RADHAKRISHNAN NAIR


RESPONDENT/S:
    1     CALICUT UNIVERSITY,REPRESENTED BY THE REGISTRAR,
          THENJIPPALAM, CALICUT UNIVERSITY CAMPUS P.O.,
          MALAPPURAM-673 635.

    2       THE VICE CHANCELLOR, CALICUT UNIVERSITY,
            THENJIPPALAM, CALICUT UNIVERSITY CAMPUS P.O.,
            MALAPPURAM-673 635.

    3       THE CORRESPONDENT AND CHAIRMAN,STANDING COMMITTEE
            ON MES, AIDED COLLEGE, FGM WO,MEN'S COLLEGE
            CAMPUS, IMA HALL ROAD, NADAKKAVU, CALICUT-673 011.

    4       SMT.SWAPNA.N.R., ASSISTANT PROFESSOR IN ENGLISH,
            DEPARTMENT OF ENGLISH, MES COLLEGE, ASMABI,
            VEMBALLOOR P.O., KODUNGALLOOR, THRISSUR-680 671.

    5       SMT.RESHMI RAVEENDRAN, ASSISTANT PROFESSOR IN
            ENGLISH,DEPARTMENT OF ENGLISH,MES COLLEGE, ASMABI,
            VEMBALLOOR P.O., KODUNGALLOOR, THRISSUR- 671.

    6       SMT.ANUPAMA MURALI, ASSISTANT PROFESSOR IN
            ENGLISH, DEPARTMENT OF ENGLISH, MES COLLEGE,
            MARAMPALLY, ERNKAULAM DISTRICT, PIN-683 107.

            BY ADVS.P.C.SASIDHARAN
            BABU KARUKAPADATH


     THIS     WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION    ON   11.08.2021,     THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 11962 OF 2021



                                -2-



                            JUDGMENT

(Dated this the 11th day of August, 2021)

Aggrieved by part of the proceedings Ext.P3 dated 27.5.2021, which has been passed in terms of the judgment dated 23.3.2021 of this court in W.P.(C) No.2495 of 2021 transferring the petitioner, Assistant Professor in English from MES Mampad College to MES Keveeyem College Valancherry, instead of Ponnani, the petitioner filed the present Writ Petition.

2. On 22.10.2008, the petitioner was appointed as Assistant Professor in English in MES College, Mambad, and only provisional approval was granted with effect from 24.10.2018, subject to termination of Smt.Unaisa T. On account of some erroneous calculation, the salary of the petitioner was denied, which was assailed by the petitioner in this court. This Court, by judgment dated 7.9.2020 in W.P.(C) No.4229 of 2020, allowed the same. The petitioner after rendering two years of service in 2020 WP(C) NO. 11962 OF 2021

submitted a representation to the college for transferring her to home town at Ponnani as she is a candidate belonging to physically handicapped with 40% disability. The aforementioned option can be exercised once during the career as per the provisions of clause 72A read with 7(xi) of Chapter 4A of Calicut University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First Statues, 1979. Since no action was taken by the respondents, the petitioner approached this court along with other petitioner. This court by judgment dated 23.3.2021 in WP(C) No.2495 of 2021 disposed of the Writ Petition filed by the petitioner by directing the respondents to consider the case of the petitioner as per the provisions of statute, as well as order dated 15.10.2020 of the University of Calicut whereby the case of the petitioner for transfer was to be considered at the time of general transfers.

3. The learned counsel for the petitioner submitted that vide impugned order dated 27.5.2021 Ext.P3, 4 persons were transferred whereas the petitioner was assigned MES WP(C) NO. 11962 OF 2021

Keveeyam College, Valancherry, while the other 3 persons who are from far away, have been posted at Ponnani college. Valancherry is about 26 Km from her home district, but because of her physical disability it is very difficult for her to travel and it is in that background the challenge has been made.

4. The learned counsel for the respondents raised the objection and countered the arguments of Adv.Mr.M.S. Radhakrishnan Nair on the premise that clause 72A read with 7(xi) cannot be read in isolation but has to be in conjunction with other clauses wherein it is provided that certain number of year of service in the college has to be rendered for claiming the transfer. The Government vide order Ext.R3(a) dated 1.4.2020 while considering the workload ordered that existing teachers whose appointments have already been approved would not be terminated even if they have less than 16 hours of workload. The posts with less than 16 hours of workload will vanish away on retirement /resignation/relieving of the WP(C) NO. 11962 OF 2021

present teacher or occurrence of vacancy in any other manner. Manager was prohibited to fill up any teaching post carrying less than 16 hours work load. The government passed fresh order and sanctioned the new programs in the aided and science colleges prior to 2016-

17. Considering all the facts, created 721 new teaching posts in aided Arts and Science college in the state, as per the Annexure attached as Annexure R3(b). There had been no general transfer taken place due to covid 19 pandemic. As and when the general transfers take place, the petitioner would be accommodated. Even otherwise, for the time being, in view of the interim order, the petitioner is teaching through virtual mode while sitting at home. No inconvenience is caused rather the petitioner should have reserved the option to exercise the virtual mode of teaching till the physical mode of teaching commences.

5. Heard the learned counsel for the parties.

6. The order Ext.P3 transferring the petitioner to Valancherry along with 3 persons to Ponnani reflects that WP(C) NO. 11962 OF 2021

the petitioner could have been adjusted to her home place i.e.,Ponnani as per clause 72A read with 7(xi) of Chapter 4A of Calicut University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First Statues, 1979, which reads as follows;

"Chapter 4A Intra-University Transfer of Teachers of Colleges under Corporate Managements having Colleges affiliated to the Calicut University

72A.(1) xxxx (2) xxxx (2) xxxx (3) xxxx (4) xxxx (5) xxxx (6) xxxx (7) (i) xxx

(ii) xx .....

(xi) Physically handicapped persons with forty percent or more of disability shall be given posting in a college of his/her choice, provided Certificate proving such disability from the Medical Board constituted by the Director of Health Services is produced.

Provided further that this benefit shall be allowed only once in the entire period of service, and

(xii) xxxx"

WP(C) NO. 11962 OF 2021

7. No doubt the number of years a person has to render service in a particular college is almost three years of service, but for calculation of the service it has been mentioned as per 6(d) of clause 72A ibid, it will be one year of service in a college situated in a place beyond 80 km, but less than 200 km is equal to two years of outside service. The college at Mampad was 90 km, therefore the representation of the petitioner seeking the transfer was within the provisions of the statute. The argument of the respondents' counsel to the effect that no general transfer has been taken place would not find any force before this court for the reason that as per Ext.P3 general orders of transfer was passed, where by the case of the petitioner was considered, which otherwise was to be considered independently as per the direction of this court. Ext.P1 recommendations has been already made by the concerned Registrar for transferring the petitioner as per clause 72A read with 7(xi) of Chapter 4A of Calicut University (Conditions of Service of Teachers and Members of Non- WP(C) NO. 11962 OF 2021

Teaching Staff) First Statues, 1979 to the place of her home town.

The petitioner should have reserved the option of exercising the transfer to her home town as it is available only once as per the proviso to 7(xi) of 72A under Chapter 4A of Calicut University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First Statues, 1979. Be that it may. It is the wish of the petitioner that in this pandemic situation of Covid -19, she need the support of her family, which she is enjoying while discharging her duty through virtual mode of teaching from home. No explanation has come forth as to why the other 3 Teachers have been transferred to Ponnani and not the petitioner. One of the Teachers could have transferred in place of the petitioner to Valancherry, which is 26 km away from Ponnani. No doubt the respondents have attempted to comply with the direction of this court, but it appears that the petitioner is being made to run from pillar to post for redressal of her grievances, for the reasons WP(C) NO. 11962 OF 2021

noticed, as in the earlier round of litigation, had to approach this court for claiming arrears of salary. Such act of the respondents meted out on a person with 40% physical disability is not appreciated and liable to be deprecated. I dispose of this Writ Petition by directing the respondents to modify the order of transfer Ext.P3, by issuing notice to the other teachers referred at Sl.Nos.1 to 3 in Ext.P3 to undertake transfer by posting the petitioner in MES College, Ponnani, her home town. Let this exercise be undertaken within a period of one month from the date of receipt of a copy of this judgment.

Sd/-

AMIT RAWAL, JUDGE.

dl/ WP(C) NO. 11962 OF 2021

APPENDIX OF WP(C) 11962/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT UO 9565/2020/Admn. Dated 15.10.2020

Exhibit P2 TRUE COPY OF THE JUDGMENT IN WP(C) 2495/2021 DATED 23.3.2021 OF THIS COURT.

Exhibit P3 TRUE COPY OF THE ORDER NO.MES/ACE-308/21 DATED 27.05.2021 ISSUED BY THIRD RESPONDENT.

Exhibit P4 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 03.06.2021.

RESPONDENT EXHIBITS

Exhibit R3(a) A TRUE COPY OF G.O.(MS) NO.155/2020/HEDN DATED 01/04/2020 BY WHICH IT WAS ORDERED THAT "(I) IN ALL AIDED ARTS AND SCIENCES COLLEGES IN THE STATE WORKLOAD OF 16HRS / WEEK IS REQUIRED FOR SANCTIONING AND FILLING UP OF REGULAR TEACHING POSTS.

Exhibit R3(b) A TRUE COPY OF G.O.(MS) NO.4712020/HEDN DATED 30/12/2020 BY WHICH THE GOVERNMENT CREATED 721 ADDITIONAL TEACHING POSTS IN VARIOUS COLLEGES OUT OF WHICH 151 ARE IN AIDED COLLEGES INCLUDING 35 POSTS IN VARIOUS MES COLLEGES.

Exhibit R3(c) A TRUE COPY OF THE HOME COLLEGE OPTION DECLARATION FORM SUBMITTED BY THE PETITIONER AT THE TIME OF ENTERING INTO THE SERVICE OF MES.

WP(C) NO. 11962 OF 2021

Exhibit R3(d) A TRUE COPY OF THE ORDER DATED 16/06/2021 ISSUED BY THE CORPORATE MANAGER AS AMENDMENT TO EXHIBIT P3.