Back
2015 Supreme(Mad) 1136
HIGH COURT OF JUDICATURE AT MADRAS
K.K. SASIDHARAN, J.
Dr. P. Santhi – Appellant
Versus
The Government of Tamilnadu, Rep by its Secretary & Others – Respondent
W.P. No. 31396 of 2014 & M.P. Nos. 1 & 2 of 2014
Decided On : 02-03-2015
For the Petitioner:R. Vaigai for V. Ajoy Khose, Advocates.
For the Respondents:R1 to R4, M.S. Ramesh, Addl. Government Pleader, R6 to R8 & R10, K. Doraisami, Senior Counsel for M. Devendran, R5, S.T. Rajan, R9, N. Baskaran, Advocates.
Headnote:
Bihar State Universities Act, 1976 - Section 10(14) - Tamil Nadu Private Colleges Act - Member of Syndicate of University - Teaching and non-teaching staffs - Post of Reader - Petitioner is an Associate Professor and Head of Department of Mathematics - She is presently a faculty member in College for Women - She is also a member of Syndicate of University from Teachers Constituency - She is stated to be office bearer of Association of University Teachers - College is managed by Trust - Trust is running several colleges and educational institutions - Each College is stated to be a separate and independent unit for appointment of both teaching and non-teaching staffs - Petitioner appears to have made series of complaints against ninth respondent ever since her appointment as Principal of College for Women - Syndicate of University pursuant to complaint preferred by petitioner debarred ninth respondent for a period of five years from undertaking examination related works of University for certain irregularities relating to awarding internal marks – Held, Right to transfer an employee is a powerful weapon in hands of employer - Sometimes it is more dangerous than other punishments - Recent history bears testimony to this - It may at times bear mask of innocuousness - What is extensible in a transfer order may not be real object - Behind mask of innocence may hide sweet revenge a desire to get rid of an inconvenient employee or to keep at bay an activist or a stormy petral - When Court is alerted Court has necessarily to tear veil of deceptive innocuousness and see what exactly motivated transfer - This Court can and should in cases where it is satisfied that real object of transfer is not what is apparent examine what exactly was behind transfer - Indisputably an order of transfer is an administrative order - There cannot be any doubt whatsoever that transfer which is ordinarily an incident of service should not be interfered with save in cases where inter alia mala fide on part of authority is proved - Mala fide is of two kinds one malice in fact and second malice in law - Order in question would attract principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground on allegations made against appellant in anonymous complaint - It is one thing to say that employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that order of transfer is passed by way of or in lieu of punishment - When an order of transfer is passed in lieu of punishment same is liable to be set aside being wholly illegal - Materials available on record very clearly shows that only as a measure of punishment petitioner was transferred - Representation submitted by ninth respondent to District Administration and Education Department proceeds as if petitioner and other faculty members have been disturbing normal functioning of College - Petitioner is therefore justified in her contention that under guise of transfer sixth respondent was actually implementing a hidden agenda - Court therefore of view that transfer was made only as a punitive measure and it was not a simple transfer on administrative ground as projected by sixth respondent - Writ petition allow
1. The petitioner challenges the order dated 26 November 2014 transferring her from C.Kandasamy Naidu College for Women at Cuddalore to Pachaiyapa's College for Men, Kancheepuram with immediate effect on the ground of malafides and affecting her status as the Head of the Department and Member of the Syndicate of Thiruvalluvar University.
The facts:
2. The petitioner is an Associate Professor and Head of the Department of Mathematics. She is presently a faculty member in C.Kandasamy Naidu College for Women at Cuddalore. She is also a member of the Syndicate of Thiruvalluvar University from the Teachers Constituency. She is stated to be the office bearer of the Association of University Teachers. The College is managed by Pachaiappa's Trust. The Trust is running several colleges and educational institutions. Each College is stated to be a separate and independent unit for appointment of both teaching and non-teaching staffs. The petitioner appears to have made series of complaints against the ninth respondent ever since her appointment as Principal of C.Kandasamy Naidu College for Women at Cuddalore. The Syndicate of Thiruvalluvar University pursuant to the complaint preferred by the petitioner debarred the ninth respondent for a period of five years from undertaking the examination related works of the University for certain irregularities relating to awarding internal marks.
3. According to the petitioner, the ninth respondent prevailed upon the management to transfer her as her presence was not conducive for her mismanagement of the institution. The Secretary of the College Committee vide order dated 26 November 2014 transferred the petitioner from C.Kandasamy Naidu College for Women, Cuddalore to Pachaiyapa's College for Men, Kancheepuram . The transfer order is challenged on various grounds including jurisdiction.
Defense:
4. The Secretary, Pachaiyapa's Trust in his counter affidavit contended that due to administrative exigencies and to maintain peace and proper atmosphere in C.Kandasamy Naidu College for Women, Cuddalore, it became necessary for the College Committee to transfer the petitioner from C.Kandasamy Naidu College for Women, Cuddalore to Pachaiyapa's College for Men, Kancheepuram. According to the Secretary, pursuant to the decision taken by the College Committee of C.Kandasamy Naidu College for Women, Cuddalore, transfer order was issued by him in his capacity as Secretary of the College Committee. The Secretary has given details of the agitations and dharnas conducted by the petitioner along with others to recall the order passed by the management. According to the Secretary, the order of transfer was issued by the competent authority in a lawful manner under administrative exigencies and it was approved by the competent authority.
5. The ninth respondent filed a counter affidavit wherein it was contended that she has not played any part in so far as the transfer of the petitioner is concerned. According to the ninth respondent, the order passed by the University debarring her from undertaking examination related works is the subject matter of a writ petition before this Court.
Rival contentions:
6. The learned counsel for the petitioner made the following substantial contentions.
(i) The transfer order was issued by the Secretary, College Committee of C.Kandasamy Naidu College for Women, Cuddalore. It was not issued by Pachaiyappa's Trust. The Secretary of the College Committee has no jurisdiction to transfer a teacher from one college to another college.
(ii) The petitioner was transferred to a Junior College and as such it would affect her status.
(iii) The petitioner by virtue of her position as faculty member of C.Kandasamy Naidu College for Women, Cuddalore was elected to the Academic Council of Thiruvalluvar University and thereafter to the Syndicate of the said University. Her term would expire only on 22 September 2016. She would lose her membership on account of the transfer to a College f
