Transfer is not prohibited by the provisions of the Act.

R. Jayasimha Babu, J.

The appellant school is a minority school run by the Salem Diocese Society. It run 43 schools all of which have been recognised under the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act 1973. A common seniority list is maintained of all the teachers working in all these schools. The society has been effecting transfers of its teachers from one school to another, such transfers being authorised under the Rules of the society which rules are made part of the service conditions of the employees by the undertaking obtained from the teachers in their service registers that they will be bound by the rules of the society.

2. The 1st respondent is one of the teachers employed in the school run by the appellant at Salem. He along with many others, said to number about fifty, were transferred in the year 1998. Though all the others took up their places at the schools to which they were posted, the 1st respondent resisted the transfer and filed a writ petition in this Court which has been allowed by placing reliance on the judgment of the Full Bench of this Court in the case of The Correspondent, Malenkara Syrian Catholic School, Marthandam, Kanyakumari District. vs. J. Robinson Jacob and others [1998 (3) M.L.J. 595].

3. In that case, the Full Bench examined the scheme of the Act and the Rules and held regarding transfer that,

" The question whether it is an incident of service has to be determined in the facts and circumstances of each and every case and is a question of fact."

The Bench also held that,

" Transfer cannot be termed absolutely as an incident of service when it is not 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."

On the facts of the case before the Full Bench, it was concluded that transfer was not an incident of service as the schools in that case had been treated as separate units and separate seniority list were maintained in each individual school and admittedly there was no common seniority list.

4. The ratio of the decision of the Full Bench, therefore, is that transfer is not prohibited by the provisions of the Act; that if in a given case it is shown that transfer is a condition of service having regard to the terms of the contract between the parties, then transfer is permissible subject to the transferee not being deprived of the benefits of his service prior to such transfer.

5. The facts and circumstance of each case have to be examined before a decision can be rendered as to whether transfer is or is not permissible. Factors relevant for determining that question would be whether transfer is provided for in the contract of service, as to whether a common seniority list is maintained and as to whether, by reason of the transfer, the transferred employee is deprived of any of the benefit to which he is otherwise entitled prior to the transfer.

6. Section 20 of the Act which is in Chapater V titled "Terms and conditions of service of teachers and other persons employed in Private Schools" deals with appointment of teachers and other employees in private schools. Section 19 empowers the Government to make rules regulating the number, qualifications and conditions of service of the teachers and other persons employed in any private school. Rules having been made by the Government in this regard, qualifications and conditions of service of teachers and others are dealt with in Rule 15. It requires the school committee of every private school to enter into an agreement in Form VII(A) or VII(B). Rule 15 (4) deals with promotions. Rule 15 (4) (ii) (ii) (c) refers to Corporate Body running more than one school that, in respect of Corporate Body running more than one school, the schools under that body shall be treated as one uni