Madras High Court
The Bishop vs C.Jane Margret ... 1St on 28 August, 2014
Author: R.Mahadevan
Bench: M.Jaichandren, R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.08.2014
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
AND
THE HONOURABLE MR. JUSTICE R.MAHADEVAN
W.A.(MD)Nos.917 of 2014
and 978 of 2014
and
M.P(MD)Nos.1 and 1 of 2014
W.A.(MD)No.917 of 2014:
1.The Bishop,
C.S.I. Tiruchirapalli - Thanjavur Diocese,
Diocesan Office,
Puthur,
Tiruchirapalli - 620 017.
2.The Correspondent,
C.S.I.Primary School,
Mulanur,
Tiruppur District - 638 106.
3.The C.S.I. Tiruchirapalli - Thanjavur Diocese,
Education Committee, represented by its
Secretary, Diocesan Office,
Puthur,
Tiruchirapalli - 620 017. ... Appellants/Respondents 1 to 3
Vs.
1.C.Jane Margret ... 1st Respondent/ Writ Petitioner
2.The District Elementary Educational Officer,
Tiruppur Educational District,
Tiruppur.
3.T.Alexander Paul ... Respondents 2 & 3/ Respondents 4 & 5
Prayer
Writ Appeal filed under Clause 15 of the Letter Patent Act, against
the order dated 14.07.2014 passed in W.P(MD)No.12058 of 2013.
!For Appellants ... Mr.Veera Kathiravan
^For Respondents ... Mr.A.Immanuel for R.1
Mr.A.K.Baskarapandian,
Special Govt. Pleader for R.2
No appearance for R.3
W.A.(MD)No.978 of 2014:
C.Jane Margret ... Appellant/
Petitioner
Vs.
1.The Bishop,
C.S.I. Tiruchirapalli - Thanjavur Diocese,
Diocesan Office,
Puthur,
Tiruchirapalli - 620 017.
2.The Correspondent,
C.S.I.Primary School,
Mulanur,
Tiruppur District - 638 106.
3.The C.S.I. Tiruchirapalli - Thanjavur Diocese,
Education Committee, represented by its
Secretary, Diocesan Office,
Puthur,
Tiruchirapalli - 620 017.
4.The District Elementary Educational Officer,
Tiruppur Educational District,
Tiruppur.
5.T.Alexander Paul ... Respondents/
Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent Act, against
the order dated 14.07.2014 passed in W.P(MD)No.12058 of 2013.
!For Appellant ... Mr.A.Immanuel
^For Respondents ... Mr.Veera Kathiravan
for R.1 to R.3
Mr.VR.Shanmuganathan
Special Govt. Pleader for R.4
:COMMON JUDGMENT
R.MAHADEVAN,J.
Since both the writ appeals arise out of the order of the learned Judge, dated 14.07.2014 passed in W.P(MD)No.12058 of 2013, they are disposed of by this common order.
2. For the sake of convenience, the parties are referred to hereunder according to their litigative status in the writ petition.
3. Facts necessary for the disposal of these writ appeals, are as follows:
3.1. The writ petitioner was originally appointed as an Assistant Teacher on 29.07.1992 in the Society for Propagation of Gospel Primary School, Thuraiyur, Trichy District. Thereafter, she was transferred to CSI Primary School, Venkatapuram, on 02.06.1993. Again, she was transferred to the CSI Primary School, Kundalam, on 16.11.1995 and she got promotion to the post of Primary School Headmistress on 01.06.2005 and continued in the said school. Later, she was transferred to CSI Primary School, Mulanur, on 02.06.2006. Subsequently, she was once again transferred to CSI Elementary School, Avinasipalayam, Tirupur District, on 18.07.2013, by the impugned order. Challenging the same, the writ petition came to be filed.
3.2. In the counter affidavit filed by the third respondent, it was contended that since the writ petitioner had continuously worked for seven years in the very same place, she was transferred along with others on administrative ground, which, was only a general transfer. Denying the allegation of mala fides, the fourth respondent prayed for the dismissal of the writ petition.
3.3. Upon consideration of the rival submissions and the materials available on record, the learned Judge of this Court allowed the writ petition.
3.4. Aggrieved over the same, the respondents 1 to 3 are before this Court with the writ appeal in W.A.(MD)No.917 of 2014.
3.5. Whereas the writ petitioner has filed the another writ appeal in W.A.(MD)No.978 of 2014, challenging the finding of the learned Judge in paragraph 11 of the order to the effect that the first respondent is having every authority to transfer teachers from one institution to another.
4. Mr.Veera Kathiravan, learned Counsel for the respondents 1 to 3 submitted that the third respondent alone is the competent authority to appoint and transfer teachers in all the schools managed by CSI and that the schools are not separate units and that the writ proceedings initiated by the husband of the first respondent had no nexus with the transfer order made on administrative grounds and accordingly, he denied the allegation of mala fides. He further contended that the learned Judge ought to have considered the fact that the impugned transfer order was passed for the reason that the first respondent had been working in the same place for more than seven years and it could be termed as a punitive measure on the part of the appellants.
Also, it is contended that merely based on presumption, the impugned order cannot be said to be illegal and the learned Judge had not gone into that aspect.
5. Refuting the allegations of mala fides, Mr.Veera Kathiravan, learned Counsel for the respondents 1 to 3 also contended that the said transfer is in no way affecting the writ petitioner as there is no reversion or any deductions in the salary of the writ petitioner. He further added that it is only a policy decision of the first respondent for the reason that not only the writ petitioner, but also, 29 other teachers were transferred and hence, mala fides cannot be attributed as against the respondents 1 to 3. Moreover, he submitted that the learned Judge had also found that the first respondent was having every authority to effect such transfers and therefore, the plea of the writ petitioner that the first respondent had no authority to make transfers, is liable to be brushed aside.
6. It is his further submission that the transfer of the writ petitioner is not by way of punitive measure to wreck vengeance on the husband of the writ petitioner who initiated writ proceedings as against the Diocese and the writ petitioner alone was not transferred, however, along with other 29 teachers and further, the reason stated by the first respondent for such transfer, is nothing but she worked for more than seven years in the same place. Having accepted all her appointment, promotion, transfer, etc., the writ petitioner is not justified in questioning the transfer made now by the first respondent, according to him. He argued that if the plea of the writ petitioner is that such transfer has been made only based on mala fides, it is not known as to why she had kept quiet while she was transferred earlier on her promotion and the writ petitioner had not proved the so-called mala fides with material evidence. Further, he contended that the present station wherein the writ petitioner has been transferred, is only around 20 Kms. from that of the place where she worked earlier and that even after such transfer order, the writ petitioner did not join duty to impart education to the students, who are ultimately going to suffer much. Lastly, he submitted that the transfer order is not punitive in nature and it is common in nature transferring more than 29 other teachers and therefore, he prayed for setting aside the order of the learned Judge in holding that the transfer order has been made as a punitive measure.
7. Per contra, Mr.A.Immanuel, learned Counsel for the writ petitioner put forth his submissions to the effect that the first respondent had no jurisdiction to transfer the teachers from one institution to another and that there had been no common seniority among the institutions, besides the Management is not a corporate body. According to him, the Tamil Nadu Recognised Private Schools (Regulation) Act, 1974, does not provide for such a power to transfer and if the schools are under one single unit, they cannot claim any corporate status. Though the writ petitioner did not challenge the earlier transfer orders or question the said power, the waiver of right is not there for each and every circumstance, he argued. Further, he contended that the order of transfer had been rightly quashed as it was punitive in nature. Placing reliance on the decision of the Full Bench of this Court in The Correspondent, Malankara Syrian Catholic School, Marthandam v. Eabinson Jacob reported in 1998 (3) MLJ 595, he contended that it is not permissible to effect transfer of teachers from one unit to another.
8. Also, he submitted that the respondent Diocese is not a corporate body and Article 26 and 26-A of the Constitution of India will not support their claim. Inasmuch as the Diocese is an unregistered society, each and every school is an independent body unless it is recognised by the authority and there cannot be any transfer and if so, the same has to be authorised by the educational authorities. Accordingly, he prayed for the dismissal of the writ appeal filed by the respondents 1 to 3 in W.A.(MD)No.917 of 2014 and also for setting aside the finding of the learned Judge in paragraph 11 of the order, by allowing the writ appeal in W.A.(MD)No.978 of 2014.
9. In support of his submissions, he relied on the following decisions:
(i) Thoothukudi Nazareth Diocese v. Church of South India reported in (2009) 8 MLJ 548.
(ii) E.C. of the S.Church of S.India v. Rt. Rev. Dr.V.Devasahayam Bishop reported in (2009) 8 MLJ 329.
(iii) Tmt. Mercy Matilda v. The Director of School Education, Chennai.
[W.P.No.16914 of 1998, decided on 08.09.1999]. In paragraph 48, it is held as follows:
"48. Hence, it is clear that the schools established by the CSI Diocese, Coimbatore do not enjoy the corporate status, nor the said Diocese had secured permission as prescribed by proviso to Rule 15 of the Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974. Further, as seen from the report extracted above, each school is being managed by an independent different correspondent and treated as separate unit for all purposes. In the circumstances, it is clear that all the schools established and run by the CSI Diocese, Coimbatore are not under the Corporate Management and they are treated as independent schools for all practical purposes."
(iv) Rt. Rev. William Moses and another v. The Director of School Education, Chennai - 6 and others [W.A.Nos.1947 of 1999 and 1837 of 2001, decided on 03.12.2007].
(v) Associated Hotels of India Ltd., v. Ranjit Singh reported in AIR 1968 SUPREME COURT 933. In paragraph 14, it is held as follows:
"14. ... A waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights."
(vi) The Correspondent, Malankara Syrian Catholic School, Marthandam v. Rabinson Jacob reported in 1998 (3) MLJ 595, wherein it is laid down thus:
"28. As observed earlier, the transfer cannot be termed absolutely as an incident of service when it is neither specifically provided for nor prohibited under the rules and regulations or conditions of service applicable to the teachers and others in a private school. It is only in particular circumstances in the facts and circumstances of each case, it can be inferred to be an incident of service.
29. The questions referred to the Full Bench are to be answered on the facts and circumstances of the case as emerge and noticed earlier to the effect that there was no contract of service providing for transfer rather the letter of appointment which is the magna carta of terms of contract conferred a right on the employee to be transferred to another unit of a school only on a condition that if the one seeking transfer opts to become the junior-most in the new unit. The schools have been treated as separate units. Recognition and affiliation are given to the school, not to the management. Separate seniority list is maintained each individual schools and admittedly there is no common seniority list. Grant?in?aid is provided to each school as a unit and not to the society. Society is at liberty to establish new schools and one joining in the unit cannot assume at the time of appointment that the society is likely to set up another unit in a different place nor there is any just expectation that he is likely to be transferred to the new unit. Thus, the diachotomy of the terms and conditions and the basic principle of freedom to enter into contract and sanctity attached to the contract with right to rewrite the contract and read into the terms the right to transfer merely because, it is reasonable to do so and putting the meaning to the words differently what they clearly and expressly provide for cannot be termed as an incident of service in order to determine the surrounding circumstances as referred to above other relevant factors will be taken into consideration whether it is an incident of service or not. Transfer has either expressly or impliedly to be provided for by the statute or by the contract or must be inherent in the nature of contract or subject matter of the circumstances leading to the conclusion that the parties by necessary implication have intended it.
30. As observed in the earlier part of the judgment, in view of the facts and circumstances of this case transfer cannot be termed as an incident of service especially when it is neither specifically provided for in the contract nor in the rules and regulations nor in the conditions of service applicable to teachers and others in private schools. No express provision for transfer is needed when it cannot be termed as an incident of service and cannot be read into it. Rather the appointment condition i.e. one has to become junior ? most teacher on being transferred in terms of the contract. Consequently, Question No. 1 is answered in the negative i.e. right to transfer always depends on innumerable facts, incapable of itemised.
31. In view of the observations made above and the findings rendered that there is no minority corporate management recognised by the authorities and the transfer is not an incident of service, the contract does not provide for the minority institutions being affiliated as one as aided cannot transfer the teachers in the different units established and administered by it and it has no inherent power to transfer. Consequently, Question No. 3 is answered in negative.
32. In view of the observations made in the earlier part of the Judgment, the right to transfer is not in all circumstances cannot be taken into the fold of administration. It will depend upon peculiar facts and circumstances of each case. There cannot be any absolute rule that right to transfer is a right to administer minority institutions, protected under the umbrella of Art. 30 of the constitution of India. Consequently, question No. 4 is also answered in negative.
33. We are of the further considered view, that, even on facts, the letter of appointment leads to an irresistible conclusion that transfer is neither a term of contract, nor an incident of service, nor is provided for under the statutes governing the parties."
(emphasis supplied.)
(vii) T.M.A.Pai Foundation v. State of Karnataka reported in AIR 2003 SUPREME COURT 355.
(viii) C.Rajakumar v. M.Azariah and others [C.S.No.562 of 1990, decided on 08.06.1994.].
10. We have considered the rival submissions and perused the materials available on record, including the order of the learned Judge of this Court.
11 It is not in dispute that the writ petitioner was appointed as Assistant Teacher on 29.07.1992 by the first respondent and given promotion and transferred to CSI Primary School, Mulanur, on 02.06.2006. Later, she was transferred to CSI Elementary School, Avinasipalayam, Tirupur District.
12. From the analysis of the materials, the learned Judge found that the appointment, promotion, transfers, had been made by the third respondent only on behalf of the first respondent and distinguished the decision relied on by the first respondent in The Correspondent, Malankara Syrian Catholic School, Marthandam v. Eabinson Jacob reported in 1998 (3) MLJ 595, that it had no application to the case on hand and arrived at a conclusion that the first appellant was having every authority to effect transfer of teachers from one institution to another.
13. It could be seen that though the writ petitioner raised a contention before the learned Judge that each school is a separate unit and hence, the first respondent had no authority to transfer the teachers from one institution to another, the learned Judge had rightly given a finding that appointment, promotion, transfers, etc., were all effected only by the third respondent for and on behalf of the first respondent and that the schools wherein the writ petitioner worked earlier, or the school, now, she is working, had never been treated as separate units and therefore, transfer from one school to another could not be termed as impermissible.
14. We, therefore, hold that the finding of the learned Judge in coming to the conclusion that the first respondent is having every authority to transfer the teachers from institution to another, is sustainable in law and needs no interference by us. In these circumstances, the writ appeal preferred against the said finding has no legs to stand and ultimately, W.A.(MD)No.978 of 2014 fails.
15. Insofar as the issue regarding the transfer as a punitive measure, the learned Judge placed reliance on the decision of the Honourable Apex Court in Somesh Tiwari v. Union of India reported in 2009 (2) SCC 592 and held that no order of transfer which was made as a punishment, is sustainable and thereby, quashed the impugned order of transfer stating that it came to be in existence not on the basis of administrative exigency, but, only as a punitive one.
16. We do agree with the proposition laid down in the above said decision. However, we have to scrutinise as to whether such a transfer is based on mala fides, and if so, what are the material evidences to support the same.
17. The learned Judge had come to the conclusion that the transfer order had been passed as a punitive measure holding that the husband of the writ petitioner initiated writ proceedings as against the respondent Diocese and in order to wreck vengeance, the writ petitioner was transferred on the next day of the pronouncement of the judgment in the writ proceedings. Simply because the writ petitioner was transferred on the next day of the result of the writ proceedings, it cannot be said that it is a punitive one. If the writ petitioner alone had been transferred, the legal position would be much different than that of the present one. Here, in the case on hand, 29 other teachers along with the writ petitioner were transferred on that particular date. The object of transfer is that the writ petitioner had been working for more than seven years in the same school and therefore, the order of transfer has come into existence. The learned Judge had not considered this aspect in detail, however, carried away by the arguments of the writ petitioner. Accordingly, we find that there are no materials to show that such a transfer has been made only as a punitive measure.
18. On consideration of the materials available before us, we are of the view that the transfer of the writ petitioner cannot be termed as a punitive one and it is only on administrative grounds as claimed by the respondents 1 to 3. We, therefore, observe that the finding of the learned Judge in coming to the conclusion that the transfer order is a punitive one, warrants interference by this Court and accordingly, the same is liable to be set aside.
19. In the result,
(i) W.A.(MD)No.978 of 2014 filed by the writ petitioner, stands dismissed. Consequently, the connected miscellaneous petition is dismissed;
(ii) W.A.(MD)No.917 of 2014 preferred by the respondents 1 to 3, is allowed as above. Consequently, the connected miscellaneous petition is closed; and
(iii) There shall be no order as to costs in both the writ appeals.
To The District Elementary Educational Officer, Tiruppur Educational District, Tiruppur.