V.Rajendran v. Bharathiar University

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 04.03.2010CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.4330 of 2010andM.P.NO.1 of 2010V.Rajendran.. Petitioner Vs.Bharathiar University,rep. By its Registrar,oimbatore-641 046... RespondentThis writ petition has been preferred under Article 226 ofthe Constitution of India praying for the issue of a writ ofcertiorari to call for the records on the file of the respondentin connection with the proceedings in office order No.E2/2010/3844dated 24.2.2010 transferring the petitioner from Bharathiar Schoolof Management and Entrepreneur Development, Coimbatore toBharathiar University College of Arts and Science, Gudalur,Nilgiris District and to quash the same.For Petitioner: Mr.R.SingaravelanORDERThe petitioner has filed the present writ petition, seekingto challenge the order, dated 24.2.2010, transferring him fromBharathiar School of Management and Entrepreneur Development,Coimbatore to Bharathiyar University College of Arts and Science,Gudalur, Nilgiris District. The petitioner was employed as anAssistant Librarian in the said University. The petitioner hasserved in the Central Library. In the last 1-1/2 years, he wasworking in the library attached to the Bharathiar School ofManagement and Entrepreneur Development, Coimbatore. By theimpugned order, the petitioner was posted to Bharathiar UniversityCollege of Arts and Science, Gudalur, which is a constituentcollege of the University. 2.The ground taken by the petitioner was that because he cameto this court earlier in W.P.No.27148 of 2009 questioning theappointment of Librarians, the present order has been passed as acounter blast. He also stated that his children are studying inthe school and he has aged parents. The climate at Nilgiris willnot suit him. The order is violative of Articles 14 and 16 of theConstitution. https://hcservices.ecourts.gov.in/hcservices/

3.Mr.R.Singaravelan, learned counsel for the petitioner alsoadded that the petitioner being an employee of the Universitycannot be transferred to a College even though it might be theconstituent college of the University. This Court is unable toagree with any one of the submission. The order impugned is passedunder administrative reasons. There is no suffering in terms ofemoluments or designation . 4.In this context, it is relevant to refer to two decisionsof the Supreme Court. The first relates to E.P.Royappa Vs. Stateof Tamilnadu reported in 1974 (4) SCC 3. The relevant passagesfound in paras 91 and 92 are reproduced below: "91....The only question before us is whetherthe action taken by the respondents includes anycomponent of mala fides; whether hostility andmalus animus against the petitioner were theoperational cause of the transfer of thepetitioner from the post of Chief Secretary.92. Secondly, we must not also overlook thatthe burden of establishing mala fides is veryheavy on the person who alleges it. Theallegations of mala fides are often more easilymade than proved, and the very seriousness ofsuch allegations demands proof of a high orderof credibility. Here the petitioner, who washimself once the Chief Secretary, has flung aseries of charges of oblique conduct against theChief Minister. That is in itself a ratherextraordinary and unusual occurrence and ifthese charges are true, they are bound to shakethe confidence of the people in the politicalcustodians of power in the State, and therefore,the anxiety of the Court should be all thegreater to insist on a high degree of proof. Inthis context it may be noted that topadministrators are often required to do actswhich affect others adversely but which arenecessary in the execution of their duties.These acts may lend themselves tomisconstruction and suspicion as to the bonafides of their author when the full facts andsurrounding circumstances are not known. TheCourt would, therefore, be slow to draw dubiousinferences from incomplete facts placed beforeit by a party, particularly when the imputationsare grave and they are made against the holderof an office which has a high responsibility inthe administration. Such is the judicialperspective in evaluating charge of unworthyconduct against ministers and other highauthorities, not because of any special statuswhich they are supposed to enjoy, nor because https://hcservices.ecourts.gov.in/hcservices/ they are highly placed in social life oradministrative set up—these considerations arewholly irrelevant in judicial approach—butbecause otherwise, functioning effectively wouldbecome difficult in a democracy. It is from thisstandpoint that we must assess the merits of theallegations of mala fides made by the petitioneragainst the second respondent.5.The second decision relates to M.Sankaranarayanan, IAS Vs.State of Karnataka and others (1993) 1 SCC 54. The followingpassage found in para 12 is worthy of reproduction here:12. After considering the respectivecontentions of the learned counsels appearingfor the parties, it appears to us that theappellant has not been able to lay any firmfoundation warranting a finding that theimpugned order of transfer was passed mala fideand/or for an oblique purpose in order to punishthe appellant and/or to humiliate him. Thepleadings of the appellant before the CentralAdministrative Tribunal only indicate that someof his suggestions in the matter of posting ofsenior bureaucratic officers of the State hadnot been accepted by the present Chief Ministerof the State. Such facts alone do not constituteany foundation for a finding that because theappellant was not agreeable to oblige the ChiefMinister by accepting all his suggestions andputting up notes to that effect, he had incurredthe displeasure of the Chief Minister and theimpugned orders had been passed not onadministrative exigencies but only to malign theappellant and to humiliate him. It may notalways be possible to demonstrate malice in factwith full and elaborate particulars and it maybe permissible in an appropriate case to drawreasonable inference of mala fide from the factspleaded and established. But such inference mustbe based on factual matrix and such factualmatrix cannot remain in the realm ofinsinuation, surmise or conjecture. In theinstance case, we are unable to find that thereare sufficient materials from which a reasonableinference of malice in fact for passing theimpugned order of transfer can be drawn. It isan admitted position that the Chief Secretaryand the Chief Minister had differences ofopinion on a number of sensitive matters. If onthat score, the Cabinet and the Chief Ministerhad taken a decision to relieve the appellantfrom the post of Chief Secretary and post a verysenior officer of their confidence to the post https://hcservices.ecourts.gov.in/hcservices/ of Chief Secretary, it cannot be held that suchdecision is per se illegal or beyond theadministrative authority. The position in thisregard has been well explained in Royappa case1by this Court.6.In both the cases, the issue related to transfer orders ofthe highest officials of the State Government i.e. Chief Secretaryto the Government.7.Since the transfer was made on administrative grounds, theCourt cannot go behind the said reason so long as the power hasbeen exercised properly by the authorities. Even following of theguidelines are not required when transfer is made onadministrative grounds.8.In this context, it is necessary to refer to the decisionof the Hon'ble Supreme Court reported in State of U.P. Vs. SiyaRam and another (2004 (7) SCC 405). In paragraph 5 observed asfollows.5. The High Court while exercisingjurisdiction under Articles 226 and 227 of theConstitution of India had gone into the questionas to whether the transfer was in the interestof public service. That would essentiallyrequire factual adjudication and invariablydepend upon peculiar facts and circumstances ofthe case concerned. No government servant oremployee of a public undertaking has any legalright to be posted forever at any one particularplace or place of his choice since transfer of aparticular employee appointed to the class orcategory of transferable posts from one place toother is not only an incident, but a conditionof service, necessary too in public interest andefficiency in the public administration. Unlessan order of transfer is shown to be an outcomeof mala fide exercise or stated to be inviolation of statutory provisions prohibitingany such transfer, the courts or the tribunalsnormally cannot interfere with such orders as amatter of routine, as though they were appellateauthorities substituting their own decision forthat of the employer/management, as against suchorders passed in the interest of administrativeexigencies of the service concerned. Thisposition was highlighted by this Court inNational Hydroelectric Power Corpn. Ltd. v. ShriBhagwan 1.9.Further, the Hon'ble Supreme Court in yet another decisionreported in 2004 (11) SCC 402 (State of U.P. Vs. Gobardhan Lal),in paragraph 7 observed as follows:- https://hcservices.ecourts.gov.in/hcservices/

7. It is too late in the day for anygovernment servant to contend that onceappointed or posted in a particular place orposition, he should continue in such place orposition as long as he desires. Transfer ofan employee is not only an incident inherentin the terms of appointment but also implicitas an essential condition of service in theabsence of any specific indication to thecontra, in the law governing or conditions ofservice. Unless the order of transfer isshown to be an outcome of a mala fideexercise of power or violative of anystatutory provision (an Act or rule) orpassed by an authority not competent to doso, an order of transfer cannot lightly beinterfered with as a matter of course orroutine for any or every type of grievancesought to be made. Even administrativeguidelines for regulating transfers orcontaining transfer policies at best mayafford an opportunity to the officer orservant concerned to approach their higherauthorities for redress but cannot have theconsequence of depriving or denying thecompetent authority to transfer a particularofficer/servant to any place in publicinterest and as is found necessitated byexigencies of service as long as the officialstatus is not affected adversely and there isno infraction of any career prospects such asseniority, scale of pay and securedemoluments. This Court has often reiteratedthat the order of transfer made even intransgression of administrative guidelinescannot also be interfered with, as they donot confer any legally enforceable rights,unless, as noticed supra, shown to bevitiated by mala fides or is made inviolation of any statutory provision.10.With reference to the last argument that there is no powerto transfer a person from the University to a constituentcollege, cannot also be accepted so long as there was no reductionof his status or emoluments. In this context, it is necessary torefer to a judgment of the Supreme Court in Vice-Chancellor, L.N.Mithila University v. Dayanand Jha, (1986) 3 SCC 7. The followingpassages found in paragraphs 7 and 8 of the said judgment may beusefully extracted below:"7. We have no hesitation in repelling thecontention of learned counsel for the respondentthat the words ‘any equivalent post’ used inSection 10(14) of the Act cannot bear themeaning of the expression ‘other equivalent https://hcservices.ecourts.gov.in/hcservices/ post’ as defined in Section 2(ka, chh). It mustbe remembered that both the provisions wereinserted by the Amendment Act and the expression‘other equivalent post’ was defined in Section 2(ka, chh) to give effect to the power of theVice-Chancellor to transfer any teacher of anydepartment or college maintained by theuniversity to any equivalent post in any otherdepartment or college maintained by it. Toremove any doubt or difficulty as toconstruction, and to make the conferral of powerof transfer on the Vice-Chancellor under Section10(14) of the Act meaningful and effective, thelegislature thought it expedient to provide thedefinition of the expression ‘other equivalentpost’ in Section 2(ka, chh). The definitionclause must be read in the context of the phrasewhich it defines as the function of a definitionclause is to give precision and certainty to aword or phrase which would otherwise be vagueand uncertain. If the contention of learnedcounsel for the respondent were to be accepted,it would reduce the definition of the expression‘other equivalent post’ as contained in Section2(ka, chh) a mere superfluity.8. The prerequisite of the power of the Vice-Chancellor under Section 10(14) of the Act totransfer any teacher occupying a post in anydepartment or college maintained by theUniversity to any equivalent post in anotherdepartment or college maintained by it is thatthey must, broadly, bear the samecharacteristics. The mere circumstance that thetwo posts are carried on the same scale of payis not enough. That is because in the originaltext of the Amendment Act the words used inSection 10(14) as well as in the expression‘other equivalent post’ as defined in Section 2(ka, chh) are samakaksh pad. Learned counsel forthe respondent is therefore right in contendingthat equivalence of the pay scale is not theonly factor in judging whether the post ofPrincipal and that of Reader are equivalentposts. We are inclined to agree with him thatthe real criterion to adopt is whether theycould be regarded of equal status andresponsibility. The term ‘teacher’ is defined inSection 2(ka, chh) to inlcude Principal,University Professor, College Professor, Reader,Lecturer etc. Professors of the universitylike head of the department, College Professors,Readers, Lecturers belong to different gradesand discharge different duties andresponsibilities The power of the Vice- https://hcservices.ecourts.gov.in/hcservices/ Chancellor to transfer any teacher under Section10(14) is controlled by the use of the wordsamakaksh and he cannot transfer any teacherfrom one post to another in a department of theuniversity or a college unless they belong tothe same class. In that view, there can be nodoubt that the two posts of Principal and Readercannot be regarded as of equal status andresponsibility. The true criterion forequivalence is the status and the nature andresponsibility of the duties attached to the twoposts. Although the two posts of Principal andReader are carried on the same scale of pay, thepost of Principal undoubtedly has higher dutiesand responsibilities. Apart from the fact thatthere are certain privileges and allowancesattached to it, the Principal being the head ofthe college has many statutory rights, such as:(i) He is the ex officio member of the Senate.(ii) He has the right to be nominated as themember of the Syndicate. (iii) As head of theinstitution, he has administrative control overthe college Professors, Readers, Lecturers andother teaching and non-teaching staff. (iv) ThePrincipal of a constituent college is also theex officio member of the Academic Council of theuniversity. (v) He has the right to act asCentre Superintendent in the universityexaminations. It is thus evident that the HighCourt was right in holding that the post ofReader could not be regarded as an equivalentpost as that of Principal in the legal sense.Maybe, when the affairs of a college maintainedby the university are mismanaged, the Vice-Chancellor may, for administrative reasons,transfer a Professor or Reader of any departmentor college maintained by it to the post of thePrincipal of such college, but the converse maynot be true. While the Professors and Readers byreason of their learning and erudition may enjoymuch greater respect in society than the Dean orPrincipal of a college, it does not follow thatthe post of Principal must be treated asequivalent to that of a Reader for purposes ofSection 10(14) of the Bihar State UniversitiesAct, 1976, as amended."(Emphasis added)11.In the aforesaid case, the Supreme Court held that thetransfer from the post of Principal of a College to that of aProfessor will result in loss of status. In that context, it heldthat such a transfer was impermissible. In other respects, thepetitioner being an employee of the University is liable to betransferred to any one of the institutions run by the University.The present college is only in the neighbouring District. The https://hcservices.ecourts.gov.in/hcservices/ other grounds raised i.e. that the transfer will causeinconvenience cannot be taken into account and that issue cannotdecide the validity of the transfer order. 12.In the light of the above, the writ petition will standdismissed. No costs. Consequently, connected miscellaneouspetition stands closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.vvkToThe Registrar,Bharathiar University,Coimbatore-641 046.W.P.NO.4330 of 2010LA (CO)kk 11/3