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2007 DIGILAW 60 (KER)

Vijayakumari v. Kerala Agricultural University

2007-01-19

A.K.BASHEER

body2007
Judgment :- A.K. Basheer, J. Petitioner who was working as Personal Assistant to the Director of Physical Plant under the Kerala Agricultural University was ordered to be transferred to the Engineering Sub Division, Mannuthy within the University campus itself. The said order dated July 27, 2006, a copy of which is on record as Ext.P7, is sought to be quashed in this Writ Petition. There is a further prayer to issue a writ of mandamus directing respondents 1 to 3 to remove respondent No.4 from the post of Director of Physical Plant since her term had already expired on June 22,2006. 2. A brief reference to the essential facts is necessary to consider the question whether the prayers made by the petitioner are liable to be allowed or not. 3. Petitioner belongs to the cadre of Assistant Executive Engineer. She had been appointed as Personal Assistant to the Director of Physical Plant in the University since June 3, 2004. Respondent No.4 in her capacity as the Director of Physical Plant is the Head of the Engineering Department in the University. The Director has control over all construction activities in the University. 4. It is not in dispute that appointed as the Director of Physical Plant on June 22, 2004 for a period of two years. Admittedly, there is no love lost between the petitioner and respondent No.4. The Registrar of the University, (respondent No.3) and the Director have minced no words in describing the petitioner as an incapable, inefficient and incompetent officer. According to them, petitioner is not fit or competent to hold the post of Personal Assistant to the Director. These respondents have in unambiguous terms stated in their respective counter affidavits that the petitioner had been making it difficult for the Directorate to function smoothly. The Director wanted to have an officer of her choice to assist her in her duties. It is therefore that Ext.P7 order was issued transferring the petitioner to the Engineering Sub Division at Mannuthy. Respondent No.5 was posted as Personal Assistant in the place of the petitioner. 5. It is contended by the petitioner that the Director and the Registrar had made her life difficult in the University. She was being constantly harassed and persecuted. Petitioner had been fighting against the corruption in the Directorate for quite some time. Respondent No.5 was posted as Personal Assistant in the place of the petitioner. 5. It is contended by the petitioner that the Director and the Registrar had made her life difficult in the University. She was being constantly harassed and persecuted. Petitioner had been fighting against the corruption in the Directorate for quite some time. Though she was the Personal Assistant to the Director, many of the important files were not routed through her in order to cover up the irregularities and corruption. Respondent No.4 had been misappropriating the funds of the Directorate and misusing her official capacity. In fact the petitioner had submitted Ext.P1 note before the Director herself pointing out the above aspects and requesting her to take appropriate action to ensure that the files were made available to her in her capacity as the Personal Assistant. It is further contended by the petitioner that a contractors' lobby is behind this sinister plot perpetrated against the petitioner by respondent Nos.3 and 4. 6. It is pointed out by the petitioner that she was in fact transferred to the Engineering Sub Division at Vellanikara by the Vice Chancellor by order dated May 26,2006. A copy of the above order issued by the Vice Chancellor has been produced as Ext.P4. However the said order was not implemented by the Registrar and the Director. It appears that petitioner's cause was taken up by the University Employees' Union. Ext.P5 representation was submitted by the Union before the Vice Chancellor, who issued a specific direction to the Director in this regard to implement Ext.P4 order of transfer. The note made by the Vice Chancellor in this regard on June 16, 2006 is available in Ext.P5 itself. The Registrar had thereafter issued Ext.P6 communication to the Director requesting her to implement Ext.P4 order issued by the Vice Chancellor. But still the said order was not implemented by the Director. Surprisingly on July 27, 2006 Ext.P7 order was issued by the Registrar of the University transferring the petitioner to Mannuthy ignoring and flouting Ext.P4 order issued by the Vice Chancellor. 7. It is pointed out by the learned counsel for the petitioner that Ext.P7 order is ex facie illegal, arbitrary and vitiated. The Registrar of the University had no authority to nullify the order of the Vice Chancellor. 7. It is pointed out by the learned counsel for the petitioner that Ext.P7 order is ex facie illegal, arbitrary and vitiated. The Registrar of the University had no authority to nullify the order of the Vice Chancellor. In fact the Vice Chancellor had issued instructions to implement Ext.P4 order when it was brought to his notice that it had not been implemented through Ext.P5. But in spite of the above instruction, the Registrar had shown the audacity and impertinence not to implement the order, it is contended by the learned counsel. The above contention is not without force and justification. 8. As noticed earlier, Ext.P4 order was passed by the Vice Chancellor on May 26, 2006 transferring the petitioner from the Directorate of Physical Plant to the Engineering Sub Division at Vellanikkara. It is revealed from Ext.P5 that the Vice Chancellor had instructed the Director to relieve the petitioner on June 16, 2006 itself. But the said order was not complied with by the Director. Curiously, it took more than one month for the Registrar to remind the Director (even if such reminder was necessary) about the order passed by the Vice Chancellor to comply with Ext.P4 order, since it was only on July 17, 2006 that the Registrar had issued Ext.P6 communication to the Director "requesting" him to implement the orders of the Vice Chancellor. Worst still, the Director did not comply with the order of the Vice Chancellor even after receipt of Ext.P6 reminder from the Registrar. It was at that stage that the Registrar had come out with Ext.P7 order on July 27, 2006, in effect overturning the order of the Vice Chancellor by transferring the petitioner to the Engineering Sub Division at Mannuthy. 9. It is seen mentioned in Ext.P7 that the said order was issued on the basis of a request made by Shri P.M. Mohammed Ismail who was ordered to be transferred to the Directorate from Vellanikkara to which station the petitioner was transferred on a mutual basis. Shri Mohammed Ismail is seen to have submitted a representation on July 20, 2006. On the next day, viz. July 21, 2006, respondent No.5, Shri P.M.Vasudevan had submitted a request informing the Registrar that he was prepared to serve in the Directorate. It was on the basis of these two representations that Ext.P7 is seen to have been issued by the Registrar. On the next day, viz. July 21, 2006, respondent No.5, Shri P.M.Vasudevan had submitted a request informing the Registrar that he was prepared to serve in the Directorate. It was on the basis of these two representations that Ext.P7 is seen to have been issued by the Registrar. Obviously, the Registrar had stultified the order issued by the Vice Chancellor in Ext.P4 by the latest order. Though it is brought to my notice that the Vice Chancellor had subsequently ratified the action taken by the Registrar in issuing Ext.P7 order, I am not prepared to give any sanctity to the said ratification in the peculiar facts and circumstances of the case. The Vice Chancellor might have obliged by ratifying the action taken by the Registrar for reasons best known to him. But the sequence of events undoubtedly shows that the officers concerned were bent upon proving that their dictates prevailed in the University campus. It is true that discipline should be maintained in any establishment. If the petitioner is guilty of insubordination or any other like charges, she can be proceeded against. If she has to be transferred out from the campus, that can also be done. As indicated in the earlier part of the judgment, respondents 3 and 4 have not minced any words in venting their anger and rancour against the petitioner. These respondents have described the petitioner as incompetent, inefficient, etc. But the order passed by the Vice Chancellor of the University ought to have been obeyed and implemented by these officers. They should have at least shown respect to the office of the Vice Chancellor. 10. It is averred by the Registrar in his counter affidavit that Ext.P4 order was kept in abeyance since respondent No.4 had expressed some reservations about the mutual transfer ordered by the Vice Chancellor. It is also mentioned that the order was not implemented since Shri P.M. Mohammed Ismail who was ordered to be posted in the place of the petitioner in the Directorate had raised objection. But as noticed already, Ext.P7 order shows that Shri Mohammed Ismail had submitted his representation only on July 20, 2006. On the next day. another letter was seen to have been sent by respondent No.5 indicating his readiness to come to the Directorate in the place of Shri Ismail. But as noticed already, Ext.P7 order shows that Shri Mohammed Ismail had submitted his representation only on July 20, 2006. On the next day. another letter was seen to have been sent by respondent No.5 indicating his readiness to come to the Directorate in the place of Shri Ismail. Thus, apparently respondents 3 and 4 had been instrumental in conjuring Ext.P7 order and that too without any authority. It is not in dispute that orders of transfer of the officers at the level of the petitioner have to be issued by the Vice Chancellor, as was done in Ext.P4. Ext.P7 was admittedly not issued by the Vice Chancellor. But it is contended by respondent No. 3 that the Vice Chancellor had subsequently ratified Ext.P7 order. But the ratification would not justify the action of respondent No. 3 or save the situation for him. 11. In Marathwada University v. Seshrao Balwant Rao Chavan (AIR 1989 SC 1582), it has been held by their Lordships of the Supreme Court that "the principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified." 12. Nothing has been brought to my notice to show that the Registrar had the power or authority to issue an order of transfer as contained in Ext.P7. Therefore, even assuming that the Vice Chancellor had subsequently ratified the above order of transfer, it cannot be held that Ext.P7 is liable to be enforced or implemented. The said order has to be treated as ab initio void in which event, it could not have been ratified by the Vice Chancellor. In that view of the matter, Ext.P7 is liable to be quashed. 13. In this context, it may also be noticed that the Vice Chancellor who had issued Ext.P4 order, had demitted office shortly after making the endorsement on Ext.P5, on June 16, 2006 by which he had issued a direction to the Director to implement Ext.P4 order. The said direction was ignored by respondents 3 and 4. Though it is vaguely contended by respondent No.3 that Ext.P5 was received in the office of respondent No.4 only on July 16, 2006, respondent No.4 has no such case at all in his counter affidavit. The said direction was ignored by respondents 3 and 4. Though it is vaguely contended by respondent No.3 that Ext.P5 was received in the office of respondent No.4 only on July 16, 2006, respondent No.4 has no such case at all in his counter affidavit. It cannot be believed that the note made by the Vice Chancellor of the University would have taken one month to reach the office of a subordinate officer of the University in the same campus. Therefore, it is apparent that respondents 3 and 4 were hand in glove with each other and were trying to stall the implementation of Ext.P4 order. It is further revealed from the counter affidavit of respondent No.3 that the new Vice Chancellor had assumed charge on June 19, 2006 and that Ext.P4 order was cancelled after a discussion with him. Ext.P7 was issued thereafter by the Registrar. It is seen from Ext.R1(b) that the new Vice Chancellor had ratified Ext.P7 order on August 7, 2U06. I am unable to approve or endorse the above ratification, if any, made by the Vice Chancellor for the reasons stated above, particularly in view of the dictum laid down in Marathwada University's case (supra). University would have taken one month to reach the office of a subordinate officer of the University in the same campus. Therefore, it is apparent that respondents 3 and 4 were hand in glove with each other and were trying to stall the implementation of Ext.P4 order. It is further revealed from the counter affidavit of respondent No.3 that the new Vice Chancellor had assumed charge on June 19, 2006 and that Ext.P4 order was cancelled after a discussion with him. Ext.P7 was issued thereafter by the Registrar. It is seen from Ext.R1(b) that the new Vice Chancellor had ratified Ext.P7 order on August 7, 2U06. I am unable to approve or endorse the above ratification, if any, made by the Vice Chancellor for the reasons stated above, particularly in view of the dictum laid down in Marathwada University's case (supra). 14. Curiously, respondent No.3 has a further case that Ext.P4 order was not communicated to the Director. What was the authority of respondent No.3 to withhold an order issued by the Vice Chancellor? There is no answer. This vital aspect also has persuaded me to set aside Ext.P7 order. 15. 14. Curiously, respondent No.3 has a further case that Ext.P4 order was not communicated to the Director. What was the authority of respondent No.3 to withhold an order issued by the Vice Chancellor? There is no answer. This vital aspect also has persuaded me to set aside Ext.P7 order. 15. There is yet another curious aspect which indicates as to how casually official functions were conducted in the above matter. Ext.R1 (c) is stated to be the report of transfer of charge by which petitioner had assumed charge pursuant to Ext.P7 order. Respondent No.5 who was serving at Mannuthy was transferred as Personal Assistant to the Director and petitioner was transferred to Mannuthy. Ext.R1(c) refers to Ext.P7 order. But curiously, it is Shri P.M. Mohammed Ismail and not respondent No.5 who has signed in that order as the relieving officer. I have referred to this aspect only to show how certain things had been stage managed by the University as alleged by the petitioner. 16. Learned Standing Counsel for the University has invited my attention to some of the provisions in the Kerala Agricultural University Act, Statutes, Ordinances, etc. in his attempt to show that the action taken by the University was well within its powers. Since I have already found that Ext.P7 was totally vitiated and unenforceable, since the Registrar had no authority to issue that order, I do not deem it necessary to refer to the above contentions. Incidentally, I may advert to the administrative powers of the Registrar of the University in this context. It is pointed out by the learned petitioner that the Registrar has got no officer of the rank of the petitioner as delineated in the delegation of powers formulated by the University. This contention has not been controverted by the University. 17. The petitioner has made yet another prayer to issue a writ of mandamus or such other appropriate writ or direction to respondents 1 to 3 to remove respondent No.4 from the post of Director of Physical Plant. According to the petitioner, the term of appointment of respondent No.4 as Director had expired on June 22, 2006. But it is on record, as revealed from Ext.R4(g) that the Government has extended the term of deputation of respondent No.4 as Director for a further period of one year with effect from June 22, 2006. According to the petitioner, the term of appointment of respondent No.4 as Director had expired on June 22, 2006. But it is on record, as revealed from Ext.R4(g) that the Government has extended the term of deputation of respondent No.4 as Director for a further period of one year with effect from June 22, 2006. In that view of the matter, the petitioner is not entitled to get the relief prayed for. Having regard to the entire facts and circumstances, I have no hesitation to hold that Ext.P7 is liable to be quashed. I do so. Ext.P4 order shall be implemented by the University forthwith. Petitioner shall be transferred to the Engineering Sub Division at Vellanikkara as ordered in Ext.P4, as expeditiously as possible, at any rate, within 10 days from the date of receipt of a copy of this judgment. However, I make it clear that it will be open to the University to pass appropriate fresh orders in the matter, if so advised, in accordance with law, if for any administrative reasons it is found that petitioner is liable to be transferred to any particular station.