Karnataka High Court
Sri Taralabalu Jagadguru Education ... vs State Of Karnataka And Ors. on 14 December, 2004
Equivalent citations: 2005(1)KARLJ361, 2005 LAB. I. C. 1057, 2005 AIR - KANT. H. C. R. 280, (2005) 4 SERVLR 416, (2005) 1 KCCR 688, (2005) 1 KANT LJ 361
Author: R. Gururajan
Bench: R. Gururajan
ORDER R. Gururajan, J.
1. Sri Taralabalu Jagadguru Education Society is seeking for a declaration declaring that respondents have no right to transfer lecturers from colleges run by other managements to any other colleges having Pre-University being run by the petitioner without its consent and as a consequence thereof to quash the order dated 16-11-2000 issued by the first respondent Annexure-C insofar as it relates to 16 lecturers mentioned in Annexure-D who are transferred to various colleges being run by the petitioner in terms of the order.
2. Facts as narrated by the petitioner are as under:
The petitioner is running several educational institutions catering to the needs of the public. The petitioner states that the aim of the Society is to provide good and meaningful education to the children of rural areas. The petitioner has filed Annexure-A, an order dated 7-8-1972 in the matter of grant-in-aid to Junior Colleges having Pre-University Course. The petitioner has filed Annexure-B, another notification dated 20-11-2000. The petitioner has also filed another notification dated 16-11-2000. The petitioner states that the petitioner has the exclusive right to appoint teachers in terms of Section 46 of the Karnataka Education Act, 1983. The petitioner is running 3 types of educational instructions viz., Junior Colleges having only 1st and 2nd P.U.C. Classes, Higher Secondary Schools converted into Junior Colleges and Composite colleges. Grant-in-Aid is applicable to the colleges in terms of Annexure-A. According to the petitioner, there is no authority conferred on the Government either under the Act or the said Grant-in-Aid Code to transfer teachers from one educational institution to another institution under different management without the consent of the concerned managements. Agreements entered into by the Government with the petitioner-Society does not contain any provision for transfer of teachers from institutions under other managements to the institutions of the petitioner-Society. The petitioner was shocked to know that the 2nd respondent transferred some teachers working in the institutions run by other managements to the colleges of the petitioner-Society. One such order is filed at Annexure-B. Thereafter, the petitioner states that 16 lecturers are transferred to the colleges run by the petitioner in terms of Annexure-D. According to the petitioner, the said transfer is not only in violation of the Constitutional provision but is also in violation of various provisions of the Karnataka Education Act. The petitioner complains that the right of the petitioner in the matter of recruitment is taken away by this unsustainable transfer from other colleges to the petitioner-college.
3. The State Government has entered appearance. In the objection statement, the State Government has referred to Section 98 to say that in terms of Sub-section (2) of Section 98, a power is available to the State Government to appoint a person who is facing retrenchment in similar post available in another aided education institution. They also refer to an order of this Court in support of their submission.
4. The State Government states that Ravindra PU College, Challakere, SUJS PU College, Guggarahatti and Maharani PU College, Kamanabhavi Extension, Chitradurga had no workload, even though colleges have the basic infrastructures. The State Government also says that the lecturers in the following colleges where there were no basic infrastructural facilities were facing retrenchment as the managements were denied the permission to run the PU Colleges. The names of the colleges are as follows:
(1) Atavi Siddalingeshwara PU College, Chikkatottalukere, Tumkur District;
(2) Chandrasekhara PU College, Manna-e-Khalli, Humnabad Takik, Bidar District;
(3) Sri Murali PU College, Tumkur;
(4) Sri Swamy PU College, Kunigal, Tumkur District;
(5) Havanur PU College, Sira, Tumkur District;
(6) Sri Krishna PU College, Dobspet, Nelamangala Taluk, Bangalore Rural District.
5. 16 lecturers of the above colleges were posted to the petitioner colleges in order to ensure that they do not go without jobs and salaries. They refer to Section 53 of the Karnataka Education Act, 1983 with regard to their power in the matter. They also say that in terms of the Government order, it provides a right of transfer to the Government in the case on hand. They say that the Government order empower the 2nd respondent to transfer the colleges to a college where there are vacancy and the petitioner management is bound to accept the same. It is submitted that the petitioner-management received the Grant-in-Aid from the State Government and the management is bound to issue from time to time by the respondent.
6. A rejoinder has been filed by the petitioner and along with the rejoinder, the petitioner has filed Annexure-F, an order dated in terms of the pleadings.
7. The contesting respondents have also filed a statement of objection. They support their transfer. They also enclose the draft of the Karnataka Educational Institutions (Recruitment and Terms and Conditions of Service of Employees of Private Aided Primary and Secondary Educational Institutions) Rules, 1999 and a judgment of this Court in W.P. No. 7428 of 2000, dated 25-10-2000.
8. Matter is heard for final disposal.
9. Sri G.K.V. Murthy, learned Counsel took me through the pleadings to contend that in terms of the material available on record, the State Government has virtually taken away the power of appointment by this permanent transfer as effected by the State. He refers to me various pleadings and the various orders to contend that such a power is not available to the Government. He relies on various judgments to which I would be adverting to at the relevant point of time. He, .while concluding wants this petition to be allowed in the given circumstances.
10. Per contra, the State Government would support the order by contending with reference to the transfer Rules and with reference to Section 98 of the Karnataka Education Act.
11. After hearing, I have carefully perused the material on record.
12. At the time of hearing, I am told that respondents 14 and 16 have not joined the petitioner. Respondents 3, 7, 9, 10, 11, 12 and 17 are working in some other colleges. The only respondents as on today working in the colleges are 4, 5, 6, 8, 13, 15 and 18. The only question that requires consideration is as to whether the State Government can transfer these employees permanently in terms of Annexures-C and D.
13. Material facts would reveal that some educational institutions has suffered a lesser workload and in those circumstances, the State Government has chosen to issue an order ordering transfer of employees permanently in other aided colleges. Let me see as to whether the State Government has the necessary power in the case on hand and if the power is available, let me see as to whether Annexure-C is sustainable in terms of the material available on record.
14. Admitted facts would reveal that the petitioner is an aided institution. An aided institution is duty-bound to accept with the directions issued from time to time by the State Government. In fact, no serious arguments are advanced with regard to the power of the Government. This Court in somewhat identical circumstances ruled in W.P. No. 2880 of 1997, dated 10-3-1997 that "the institution cannot while claiming aid defy or violate the executive instructions issued on the subject or orders passed by the authorities pursuant to such instructions". This Court also ruled that so long as the institution gets aid from the State Government, it is bound to follow the executive instructions issued or the policies framed by the State Government. In the light of the petitioner getting aid and in the light of the judgment of this Court, it cannot be said that the State Government has no power at all in the matter of transfer as argued by the learned Counsel for the petitioner. This argument does not appeal to me.
15. Coming to the merits of the matter, it is seen from Annexure-C that the State Government in the light of a lesser workload has chosen to transfer permanently in terms of Clause 3 of the order of various teachers to the petitioner-institution. Admittedly, these transfers are affected in terms of an order dated 3-10-1981. Both the Counsels refer to this order Annexure-F. Clause 7 of the said order provides for transfer and the same reads as under:
7. Transfers:
1. Whenever there is a fall in the workload, rendering an employee surplus in a college or a surplus member of Ministerial Staff, the Director shall have the power to transfer such surplus employees to another college where there are vacancies and such transfers shall be accepted by the concerned management:
Provided the employee so transferred is liable to retransfer to the present institution whenever there is sufficient workload or a vacancy.
2. The Director shall have power to transfer on request of an employee of a college to another such college under the control of Director of Collegiate Education in cases of hardship subject to availability of workload/vacancy, provided both the managements pass a Resolution agreeing to such a transfer. The transferred employee shall be the junior most in that cadre as on the date of transfer".
16. A careful reading of the said clause would show that whenever there is a fault in the workload, rendering an employee surplus in a college or a surplus member of Ministerial Staff, the Director shall have the power to transfers shall be accepted by the concerned management. It cannot be said in the case on hand that the transfer as such is bad because transfer is affected in the light of a fault in the workload in terms of the objection statement. However, it is seen in terms of Annexure-C that these transfers are transferred permanently which would virtually mean that places of appointment which are available to the management is virtually sealed. Whether it can be done is the question that is required to be considered by this Court. To consider, let me also see the proviso to Clause 7 itself. It categorically provides for re-transfer to the parent institution whenever there is sufficient workload or a vacancy. Therefore, a reading of proviso would show that there can be no permanent transfer as has been done in the case on hand. Transfer always is understood as a stop-gap arrangement to meet a particular situation or a particular circumstance. That cannot be made use of to send an employee or another institution in the guise of Clause 7. Any such permanent transfer in terms of the power under Clause 7 would virtually mean appointing permanently in an institution by the Government.
17. Sri G.K.V. Murthy, learned Counsel invites my attention to a judgment of the Supreme Court in The Manager, M/s. Pyarchand Kesarimal Porwal Bidi Factory v Onkar Laxman Thenge and Ors., particularly para 8 of the said judgment.
In the said judgment, the Supreme Court has ruled that "a contract of service being thus incapable of transfer unilaterally, such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of service by mutual consent and to make a new contract between the employee and the third party. Therefore, so long as the contract of service is not terminated, a new contract is not made as aforesaid and the employee continues to be in the employment of the employer".
18. He invites my attention to a recent judgment of the Supreme Court in Brahmo Samaj Education Society and Ors. v State of West Bengal and Ors., 2004 AIR SCW 3189 : 2004(4) Supreme 349. In the said case, the Supreme Court has ruled that "the petitioner's right to administer includes the right to appoint teachers of its choice among the NET/SLET qualified candidates".
In para 8, the Supreme Court has ruled as under:
"Argument on behalf of the State that the appointment through College Service Commission is to maintain the equal standard of education all throughout the State of West Bengal does not impress us. The equal standard of teachers are already maintained by the NET/SLET. Similarly, receiving aid from State coffers can also not be treated as a justification for imposition of any restrictions that cannot be imposed otherwise".
19. In Jawaharlal Nehru University v Dr. K.S. Jawatkar and Ors., the Supreme Court has ruled as under:
"The position in law is clear, that no employee can be transferred, without his consent, from one employer to another. The consent may be express or implied".
20. From these judgments, what is clear to this Court is that the right to administer includes right to appoint teachers in the case on hand. That right to appoint a teacher is virtually taken away by the respondent thereby virtually the right to administer is partly effected on account of his permanent transfers. Therefore, Sri Murthy, learned Counsel is right in his submission that a permanent transfer would run against the administration of the institution. In these circumstances, I find substance in his submission.
21. But at the same time, I must notice the argument of the respondent. They refer to Section 98(2) of the Karnataka Education Act.
22. Chapter 14 of the Karnataka Education Act of 1983 provides for Terms and Conditions of service of Employees in Private Educational Institutions.
23. Section 98 provides for retrenchment of employees. Sub-section (1) provides for prior approval of the Competent Authority. Sub-section (2) provides for appointing such retrenched person by the State Government subject to prescribed rules to a similar post where available in any other aided educational institution.
24. Admittedly, in the case on hand, no retrenchment is affected by the management. Therefore, the Government cannot take shelter under Section 98(2) for the purpose of permanent transfer in the case on hand. That argument is not available to the Government.
25. In these circumstances, this Court is of the view that the order insofar as Clause 3 (permanent transfer) is concerned is required to be set aside. The respondents who are continued as on today are not to be disturbed in the larger interest of the students and the institutions. They cannot be sent back during the mid term of this education system. They are allowed to continue till 30-5-2005. The Government is directed to re-consider in the light of Clause 7 of 1981 Order with regard to re-transfer and also consider the subsequent development, if any, and take appropriate decision in the matter. Time for compliance is 30-5-2005. Liberty is reserved to the management to place its views by way of a representation with regard to the performance/complaint or the source of recruitment etc., to the Government for its decision in the matter.
26. Ordered accordingly. No costs.