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2001 DIGILAW 369 (KER)

Thankamani v. University Of Kerala

2001-07-11

K.A.ABDUL GAFOOR

body2001
JUDGMENT K.A. Abdul Gafoor, J. 1. Petitioner is a Reader in bio-technology Department of the University of Kerala. She was so appointed on 28.2.1995. By Ext. P2 she has been put in charge of the Head of that department by the Vice Chancellor. She is continuing as such. Later, there was an attempt to transfer a Professor from another department to Biotechnology Department. That is evident from Ext. P6. The Syndicate decided to transfer a Professor from one Department to Biotechnology department. That has been stayed by this Court in C.M.P. No. 36401/2001 in O.P. NO. 21701/2001. It is still in force. That is not disputed. Now Ext. P7 whereby a decision of the Syndicate to shift one post of Professor from the Bio-Chemistry Department to Bio-Technology department has been implemented, is impugned in this Original Petition. No incumbent is transferred but only a post is transferred as per Ext. P7. That means a new post of Professor is instituted in Bio-Technology department on transfer from Bio-Chemistry department. 2. This order Ext. P7 is challenged as incompetent and without jurisdiction. it is submitted relying on S. 19(2)(e) of the Kerala University Act that only the Senate of the University will have the power "to institute Professorship, Readerships, Lectureships, and such other teaching or research posts as it may deem necessary". It is further submitted that as power S. 23 regulating powers of the Syndicate, such a power is not vested with the Syndicate. Even institution of a teaching post as per S. 19, by the Senate shall be based on the proposals made by the Academic Council concerned under S. 25(ix). it is further be contended relying on para 1 of Chapter 3 of the Kerala University First Statutes that "The Senate shall be competent to institute Professorships, Readerships, Lectureships, and such other teaching and research posts required by the University on the motion of the Syndicate and/or on the proposals of the Academic Councils therefore endorsed by the Syndicate". For this also, there shall be proposals from the Academic Council concerned or motion by the Syndicate in the Senate. The Syndicate cannot at any rate by itself create a post of Professor in any of the departments in the University. 3. It is contended by the counsel for the University that this is only a transfer of a post from one department to another. The Syndicate cannot at any rate by itself create a post of Professor in any of the departments in the University. 3. It is contended by the counsel for the University that this is only a transfer of a post from one department to another. So, it does not militate against the provisions contained in S. 19(2)(e). 4. As at present there is no post of Professor in Bio-technology department. The result of Ext. P7 is that there comes into being a post of Professor in that department. That means, a post of Professor is instituted in that department. When a post is transferred from Biochemistry department to Bio-technology department, it cannot subsequent to that transfer, be a post of Professor in Bio-Chemistry Department but only the post of Professor in bio-technology department. That means a post of Professor in the latter department is instituted. it cannot continue, subsequent to the transfer, as the Professors in the former department. Therefore, Ext. P7 amounts to institution of a post of Professor in Bio-technology department. Admittedly, Ext. P7 is based only on the decision of the Syndicate in its meeting held on 26.8.2000. There is no decision by the Senate. The Syndicate can only make proposals as provided in Statute 1 Chapter 3 of the Kerala University First Statutes. it cannot institute a post. On the other hand, Ext. P7 is result of the decision of the Syndicate. Syndicate has not moved the Senate for institution of such post, nor, is there any proposal from the Academic Council. In such circumstances, Ext. P7 is incompetent, militating against the statutory provisions contained in Ss. 19 and 23 detailing power of the various authorities of the University. When Ext. P7 and the decision forming its basis thus does not come within the power delegated to the Syndicate in terms of S. 23 of the Kerala university Act, and when it is within the domain of the Senate as provided in S. 19(2)(e) and Para 1 of Chapter 3 of the Kerala University First Statutes, naturally, Ext. P7 shall loose its efficacy and legal basis. It is quashed. 5. O.P. is allowed. No costs.