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2019 Supreme(Bom) 768
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.R. GAVAI, DAMA SESHADRI NAIDU, JJ.
MANISHA YOGESH KHALADKAR AND OTHERS - Appellant
Versus
STATE OF MAHARASHTRA AND OTHERS - Respondent
Writ Petition No. 6115, 7072, 6702 of 2018; Civil Application No. 120 of 2019, 119 of 2018
Decided on : 03-05-2019
Advocate Appeared:
A.V. Anturkar, Adv., Yatin Malvankar, Adv., Amol Gatne, Adv., Ajinkya M Udane, Adv., S.M. Phatak, Adv., Amit B Borkar L M Acharya, Adv., Shruti D Vyas, Adv., B. Panel, Adv.
Headnote:
Service Laws – Transfer – Writ petition poses a familiar, oft-repeated question: can the Court judicially review an employees transfer made on administrative grounds – The answer could have been plain. But this question has, plain as it seems, a different factual background. – Before we attempt to answer the question of transfer, we ought to answer another question: Are the transferred employees under the administrative control of the authorities that transferred them – Government has transferred a batch of employees- the Assistant professors-from one college to another. – Yet the college from which the batch has been transferred is an autonomous institute. – Though the transferred employees were recruited before the college became autonomous, they maintain that post-autonomy, the government has ceased to control them; so the order of transfer is ultra vires. – If the transferred employees are government servants, they may still question the transfer, though on limited grounds; but the forum changes. – That is, they have an efficacious alternative remedy. – Held, Government has been regularly transferring and deputing these employees. It has been granting permissions to many pre-autonomy staff to pursue higher studies and acquire better qualifications under Quality Improvement Programme. – It asserts that the Government has sponsored the petitioners 3, 4, 5, 6. 8, 12, 13 under that Programme. – It also permitted the petitioners 10 and 11 to complete their Ph.D with full salary and allowance, on deputation to IITs. – All these happened post-autonomy. – The Institute has illustratively placed on record a couple of the petitioners representations to the Government for their taking up higher studies. – And those applications include the ones submitted by the petitioners 2 and 3 to the Principal Secretary, Higher and Technical Education. – Institute also places on record that the Directorate of Technical Education and Joint Director of Technical Education have from time to time assessed the confidential reports of only the Government appointed faculty, like the petitioners. – Even permission to travel abroad, the petitioners have been securing only from the Government. – As a matter of fact, the petitioner 2, 3, 4, and 13 sought travel permission from the Government and secured it. – Besides that, all the pre-autonomy staff have been submitting their Annual Statements of Assets not to the Institute, but to the Government. – Government periodically prepares, further asserts the Institute, an integrated seniority list involving all the teaching staff of Government colleges. – And the petitioners names, too, are reflected in it. – The Institute points out that because of various intervening factors, it wanted to bifurcate its roaster from the State roaster and prepare its own. – That is, the Institute wanted to prepare its own seniority list. – When it did prepare the seniority list keeping Government appointed employees at appropriate places as specified by the Government, the petitioners and similarly placed persons objected to it. – The objection mainly relates to clubbing the petitioners-the Government employees-with the Society employees in a single list. – Abhiyantriki Mahavidyalay Rajpatrit Adhyapak Adhikari Sangh has also corresponded on this issue with the Joint Director of Technical Education. – Autonomy conferred on the Institute, the empowered Board undertook the recruitment process. – Many petitioners, that is petitioner 1, 2, 3, 4, 5, 6, 11, 12, 13 applied, got selected to higher positions, joined, served, and then got reverted. – They chose reversion because they did not want to lose the status of being government employees and the attendant financial benefits, perhaps. – When the Institute applied for securing deemed-to-be-university status, the Sangh, to which the petitioners belong, objected. – A writ petition is said to be pending on that issue. – In WP Sangh acknowledges that the employees recruited after the Institute gained autonomy will not get the benefit of pension and provident fund. – In that context they pleaded in paragraph 18 that many government employees continued in the Institute after 19 July 2002 when it gained autonomy, but they continued only as Government employees. – So the petitions are estopped. And the GRs are not statutes to arrest this estoppel. – It is the petitioners that have come before this Court; they have asserted that this Court has jurisdiction to entertain the Writ Petition. – At any rate, the doctrine of the alternative forum implies a choice among more than one forum. In determining alternative remedy; efficacy, expediency, and judicial restraint, a self-imposed one though, are the norms to be observed. – Put it differently, only if the Court inherently lacks jurisdiction- that is, the subject matter jurisdiction-a partys consent does not confer jurisdiction. – Otherwise, it does at least estops the party. – Suitor who knocked the doors of a Constitutional Court cannot turn back and avoid adjudication by asserting that he has an efficacious alternative remedy. – That conduct amounts to self-contradiction. – And that option of avoiding adjudication rests with the Court he has approached. – Writ Petitions Dismissed
DAMA SESHADRI NAIDU, J.
Introduction:
This Writ petition poses a familiar, oft-repeated question: can the Court judicially review an employee's transfer made on administrative grounds? The answer could have been plain. But this question has, plain as it seems, a different factual background. Before we attempt to answer the question of transfer, we ought to answer another question: Are the transferred employees under the administrative control of the authorities that transferred them?
2. The government has transferred a batch of employees- the Assistant professors-from one college to another. Yet the college from which the batch has been transferred is an autonomous institute. Though the transferred employees were recruited before the college became autonomous, they maintain that post-autonomy, the government has ceased to control them; so the order of transfer is ultra vires.
3. If the transferred employees are government servants, they may still question the transfer, though on limited grounds; but the forum changes. That is, they have an efficacious alternative remedy.
4. Now, therefore, we need to answer these questions:
(a) Are the petitioners, the transferred employees, the government servants?
(b) If they are government servants, is this Court still inclined to judicially review the government order of transfer, despite the petitioners' having an efficacious alternative forum: the Maharashtra Administrative Tribunal?
Facts:
5. In WP No.6115 of 2018, there are 13 petitioners; the first petitioner represents the remaining 12 as their Power of Attorney holder. The petitioners are Assistant Professors working in the 3rd respondent college, an autonomous Engineering College ("the Institute"). The petitioners 1, 6, 7, 8, 9, 10, 11, and 12 are married women having, as they assert in the alternative, right not to be transferred on the spousal ground, too.
6. Under a World Bank sponsored Scheme, three Engineering Colleges and eight Polytechnics were declared autonomous, through Government Resolution, dated 19th July 2002. The staff of these institutes is governed by the Rules framed by those institutes themselves. Unlike the Government servants, they are disentitled to pension and provident fund. A Government Resolution lets the teaching and non-teaching staff working outside to opt for these autonomous institutes; conversely, those working in these institutes could as well choose to work in non-autonomous institutes.
7. Another GR empowers a Board of Governors to administer each autonomous institute with its own service conditions. But the staff who had been in service before these institutes became autonomous would remain unaffected: they would have their service benefits on a par with other government employees, pension and provident fund included.
8. As these institutes continue to be autonomous, an association of employees, an Adhyapak Adhikari Sangh, filed a few writ petitions, including WP No.4046 of 2012. Thus the Sangh's efforts resulted in judicial directives, consequential government action, and further litigation, too.
9. The Sangh complained of malpractices in recruitment to the respondent Institute. In fact, a Division Bench of this Court disposed of WP No.4046 of 2012 with certain directions. Acting on those directions, the Government appointed a Committee to probe the allegations of irregularities in recruitment. The Committee's report, the petitioners allege, vindicates the Sangh's stand.
10. In due course, the Government issued GR, dated 30th May 2018, transferring 49 Assistant Professors. From the 3rd respondent Institute, 21 Associate Professors were transferred. And of those 21, the majority, that is 17, are the members of the Sangh, which acted as a whistleblower. The remaining four also were the government servants who opted to stay in the autonomous institute.
11. In esense, some of the petitioners have been transferred on "administrative ground", and the remaining apprehend that they too may soon have the marc
