Mahatma Gandhi University vs Karthika A.P

P.B.Suresh Kumar, J.

These appeals are directed against the judgment dated 01.12.2022 in W.P.(C) No.37876 of 2022. The appellant in W.A.No.2 of 2023 was the third respondent in the writ petition and the appellant in W.A.No.119 of 2023 is a third party. Parties and documents are referred to in this judgment for convenience, as they appear in the writ petition.

The matter relates to the claim made by the petitioner who is an Assistant in the service of the third respondent, the Mahatma Gandhi University (the University) for an inter-university transfer to the Kerala University.

The petitioner is a person who entered into an inter-caste marriage. Her husband is employed in Kerala University and is residing in Thiruvananthapuram. The petitioner was appointed as an Assistant in the University on 22.06.2022 and she is working as such at Kottayam since 28.06.2022. Immediately after joining the service of the University, on 25.08.2022, the petitioner preferred a representation to the Registrar of the University seeking inter-university transfer to Kerala University, by extending her the privilege by the State Government to inter-caste married couples to work in the same station. Ext.P10 is the representation preferred by the petitioner in this regard. In Ext.P10, it is stated by the petitioner that her mother-in-law who is suffering from cancer, is being taken care of by her husband and if she is transferred to Thiruvananthapuram, the same would be helpful to both her husband and the mother-in-law. Ext.P10 representation was rejected by the University in terms of Ext.P12 memo. Ext.P12 memo was under challenge in the writ petition. The case set out by the petitioner in the writ petition was that in light of Exts.P8 and P9 orders of the Government, the University ought to have allowed the request made by the petitioner. The prayer in the writ petition, in the circumstances, was for a direction to the University to transfer the petitioner to the Kerala University.

It is seen that when the writ petition came up for admission, the learned Standing Counsel for the University pointed out that more than 88 persons have already made similar requests and that the request of the petitioner can be considered only after considering the requests earlier received, and that the petitioner's case cannot be considered out of turn. It was also pointed out that an identical claim was rejected by this Court in W.P.(C) No.28645 of 2017.

The learned Single Judge though held that the priority of turns cannot be disturbed under normal circumstances, since it is alleged that the mother-in-law of the petitioner is suffering from a terminal form of cancer requiring continuous care, the University must consider her request with all its empathy. Consequently, the writ petition was disposed of directing the University to consider the case of the petitioner as an exception and issue her appropriate orders as expeditiously as possible. It was, however, made clear in the judgment that if there is any other person with equal or more compelling reason for transfer, the same shall be considered first and only then, the petitioner be granted the benefit. The University is aggrieved by the said decision of the learned Single Judge.

W.A.No.119 of 2023 is filed by the senior most among the employees of the University who preferred requests for inter-university transfer to the Kerala University. It is stated by him in the appeal that he entered the service of the University on 08.12.2017; that his parents who are aged 74 and 72 respectively, are suffering from various ailments; that there is nobody in his house to take care of his parents; that inter-university transfers are effected on a reciprocal arrangement based on service seniority when there are requests for transfer from both Universities as per the norms fixed by the Government and adopted by the University; that requests are invited for the said purpose by the University; that he has made a request for the same pursuant to an invitation made by the University on 11.12.2019; that in terms of the existing norms, persons who are given inter-university transfer have to join in the transferred university as junior most in the cadre; that he has been waiting all throughout for the same and it is when his turn matured against a vacancy that arose in Kerala University, that the petitioner who entered service in the year 2022 and who had no occasion even to prefer a request pursuant to an invitation made by the University, has obtained the impugned judgment in her favour.

Heard the learned Standing Counsel for the University, the learned counsel for the petitioner as also the learned counsel for the appellant in W.A.No.119 of 2023.

The learned Standing Counsel for the University contended that there is a procedure in place in the University for considering requests for inter-university transfers and since it is made on a reciprocal arrangement, as and when vacancies arise in the concerned Universities, the senior most among the employees who have submitted the request pursuant to the invitation made by the University will be considered and the said procedure is one prescribed by the Government and adopted by the University. It was argued by the learned counsel that since more than 88 employees of the University have already made requests for inter-university transfer to Kerala University, there was no occasion at all for the University to invite fresh applications after 2019 for the said purpose and the petitioner, therefore, had no occasion to even apply for inter-university transfer. It was contended by the learned Standing Counsel that the learned Single Judge, in the circumstances, ought not have entertained the writ petition filed by the petitioner, especially since the petitioner has not impleaded in the writ petition persons who are already in the list drawn by the University for the said purpose.

The learned counsel for the petitioner contended that an identical writ petition has been allowed by this Court as per the judgment in W.P.(C) No.21469 of 2017 and in light of the said judgment, the direction issued by the learned Single Judge cannot be said to be illegal. It was also contended by the learned counsel that since the learned Single Judge has made clear in the judgment that the case of the petitioner need be considered only after considering claims of other senior employees with equal or more compelling reasons for transfer, the University cannot be heard to contend that any prejudice would be caused to anyone on account of the direction issued by the learned Single Judge.

The learned counsel for the appellant in W.A.No.119 of 2023 contended that if the claim of the petitioner is considered in preference to his claim, grave prejudice would be caused to him inasmuch as he will have to wait until a new vacancy arises in the Kerala University and even if a vacancy arises and he is transferred, he will be junior to the petitioner in Kerala University. The learned counsel for the appellant in the said case has also drawn our attention to the representation submitted by the petitioner and pointed out that what has been stated by her in the representation is only that since her husband is taking care of his ailing mother, the transfer requested for by the petitioner would be helpful to him and to her mother-in-law. According to the learned counsel, even if it is assumed that inter-university transfers can be ordered in exceptional cases out of turn, the case of the petitioner cannot be said to be an exceptional one.

We have examined the arguments advanced by the learned counsel for the parties on either side.

As noted, since inter-university transfers are effected on a reciprocal arrangement, only if there are requests for transfer from Kerala University, corresponding requests from the University will be considered. There is no dispute to the fact that as per the norms in force, such transfers have to be effected on the basis of service seniority. But, that does not mean that requests for inter-university transfers cannot be considered out of turn at all. In exceptionally exceptional cases, the University ought to have the power to grant inter-university transfers out of turn. The case dealt with by this Court in W.P.(C) No.21469 of 2017 is one such case where the employee who sought inter-university transfer is the mother of a mentally retarded child suffering from “West Syndrome” and undergoing treatment at Thiruvananthapuram Medical College. But, whether there shall be an inter-university transfer out of turn is a question to be considered by the University at the first instance, having regard to the reasons stated in the requests received for such transfers. Of course, a decision by the University on a request for an out of turn transfer can be challenged before this Court. But that does not mean that this Court can take a decision whether the reason stated by a particular employee is a compelling reason, sufficient for the University to deviate from the existing norms, that too, in a proceedings in which persons who earlier made such requests are not parties, and issue directions to the University to grant such requests. As rightly pointed out by the learned counsel for the appellant in W.A.No.119 of 2023, what is stated by the petitioner in Ext.P10 representation is only that since her husband is taking care of his ailing mother, the transfer requested by her would be helpful to him and her mother-in-law. According to us, the case of the petitioner cannot be said to be an exceptional one sufficient for deviating from the established procedure evolved for maintaining fairness in the actions of the University. We are certainly conscious of the fact that the direction in the impugned judgment is one issued in exercise of the discretionary power of this Court under Article 226 of the Constitution, and such orders are not normally interfered with in an appeal under Section 5 of the Kerala High Court Act, 1958.

Nevertheless, we are constrained to interfere with the impugned decision of the learned Single Judge as we find that the direction contained in the judgment that if there are other persons with equal or more compelling reasons for transfer, the same shall be considered first and only then, the petitioner be granted the benefit, would create a mess in the University as the same would upset the procedure hitherto followed, and the inter-university transfers hereafter will be based on comparative hardship. In such a situation, according to us, there will not be any consistency in the actions of the University in this regard, for such decisions would only be subjective.

In the result, the writ appeals are allowed, the impugned judgment is set aside and the writ petition is dismissed.