This writ petition brings forth once again the oft- agitated issue of transfer, in the middle of the academic year, especially. 2. Briefly stated, the petitioner is presently working as the Head of the Department of Medical Laboratory Technology, School of Medical Education, Gandhinagar, Kottayam, under the administrative control of the first respondent University. When the petitioner was subjected to transfer through Ext.P5, aggrieved thereby the petitioner approached this Court by filing W.P.(C) No. 29863 of 2014, which eventually was disposed of on 11.11.2014.
3. Placing reliance on Director of School Education, Madras & others v. O. Karuppa Thevan & another1, this Court has observed that since a representation is said to be 1 1994 Supp (2) SCC 666 pending before the Vice-Chancellor concerning Ext.P5 transfer, it is appropriate for the said authority to dispose it of in accordance with law before giving effect to, if required, Ext.P5 order of transfer.
4. As could be seen from the record, in compliance with the direction in Ext.P7 judgment of this Court, the respondent University passed Ext.P8 order, dated 05.12.2014, rejecting the claim of the petitioner to be retained in the present place of working till the end of the academic year. Under those circumstances, the petitioner has once again approached this Court by filing the present writ petition.
5. In the above factual background, the learned counsel for the petitioner has strenuously contended that in Ext.P5, the only reason supplied by the respondent University for transferring the petitioner was that she had completed three years of service in the present place of posting. Insofar as Ext.P8 is concerned, according to the learned counsel, the University has come up with entirely different reasons, thereby supplanting the earlier reasons only with a view to justifying its action of transferring the petitioner. In this regard, the learned counsel for the petitioner has placed reliance on Mohinder Singh Gill v. Chief Election Commissioner, New Delhi2. The learned counsel has further submitted that more than 45 employees have completed three years of service, but only a handful of them, including the petitioner, have been subjected to transfer midstream. In expatiation of his submissions, the learned counsel would contend that out of eight persons transferred through Ext.P5, three of them, including the petitioner, have approached this Court questioning the orders of transfer; whereas, two of them have been transferred on mutual basis.
6. The learned counsel has further submitted that the petitioner has no reservations, nor can she have any 2 (1978) 1 SCC 405 objection, concerning the transfer which she is willing to suffer, provided it is in accordance with law. In elaboration thereof, the learned counsel has submitted that the petitioner's son is studying 5th standard in the present place of working and at this juncture, the petitioner's transfer to a faraway place would disturb his schooling. In the end, the learned counsel has submitted that the petitioner is willing to be transferred at the end of the academic year i.e., by the end of March, 2015.
7. Per contra, the learned Standing Counsel for the respondent University has strenuously opposed the claims and contentions of the petitioner. To begin with, he has submitted that the transfer is an incidence of service and the petitioner does not have any indefeasible right to insist that, up to a particular point of time, only to suit her convenience, she should not be transferred. The learned Standing Counsel has brought to my notice Ext.R1(a), which is said to be a representation submitted by the petitioner seeking, all along, transfer to the place, to which she has presently been transferred.
8. The learned Standing Counsel has also contended that the petitioner has been facing certain allegations and in fact, in the interest of better administration, the petitioner has been transferred through Ext.P5, as has been affirmed through Ext.P8, to Angamaly. In this regard, the learned Standing Counsel has drawn my attention to Ext.R1(b), which is said to be a complaint filed by a former Chairman of a particular student union. According to him, conveniently suppressing this factum of enquiry into the allegations made in Ext.R1(b), the petitioner has approached this Court. He has further submitted that when an enquiry committee was appointed to go into the allegations made in Ext.R1(b), the petitioner, in fact, approached this Court by filing W.P.(C) No. 7376 of 2013 and invited an interim order of stay on 15.03.2013.
9. The learned Standing Counsel on the issue of undesirability of judicial interference in the matters of transfer has placed reliance on State of U.P. v. Dr. V.N. Prasad3, N.K. Singh v. Union of India & others4, Chief General Manager v. Rajendra Ch. Bhattacharjee5, K. Prasanna v. Director of Medical Education6 and also K. Sajeevan v. State of Kerala7.
10. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent University, apart from perusing the record.
11. The issues that fall for consideration in the present writ petition are :
1. Whether the petitioner has been guilty of suppressing any material facts while filing the present writ petition?
2. Whether Exts.P5 and P8 disclose any valid reasons for, and statutory compliance in, effecting mid-academic year 3 1995 Supp (2) SCC 151 4 (1994) 6 SCC 98 5 (1995) 2 SCC 532
6 Unreported Judgment, dt.1.12.2009 in WA No.2719 of 2009
7 Unreported Judgment, dt.24.1.2012 in WP (C) No.29712 of 2011 transfer?
In re: Issue No.1:
12. To begin with, I may initially deal with the charge of suppression of material fact on the petitioner’s part while approaching this Court. The learned Standing Counsel has contended that, on an earlier occasion, the petitioner faced certain allegations as contained in Ext.R1(b), which compelled the respondent University to constitute an enquiry committee to go into the said allegations. Aggrieved by the action proposed to be taken on the basis of Ext.R1(b), the petitioner filed W.P.(C) No. 7376 of 2013 and on 15.03.2013 got stayed all further proceedings pursuant to Ext.R1(a). The question is whether non- disclosure of the information amounts to any suppression of material facts. In other words, if the information concerning the pending proceedings in W.P.(C) No. 736 of 2013 had been revealed before this Court in the present writ petition, would the outcome have been in any manner different? On this issue, we need not look far, inasmuch as the Hon'ble Supreme Court in S.J.S. Business Enterprises (P) Ltd. v. State of Bihar8 has elaborately dealt with the aspect of suppression of material facts. Their Lordships have held that the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken.
13. It is clear that Ext.R1(b) complaint was made on 28.01.2013. Soon thereafter, the petitioner approached this Court and obtained an interim direction on 15.03.2013. For arcane reasons, the said complaint, which was filed way back on 28.01.2013, was resurrected after two years with an inward seal 'received on 12.12.2014'. In the first place, the issue of specific allegations against the petitioner by a
8 (2004) 7 SCC 166 former chairman of a particular student union could not be held to have any relevance at this point of time, more particularly in the light of Ext.P11 interim order issued by this Court. It is evident that to this day the order is in force and the University does not seem to have made any serious efforts to have it vacated. Secondly, neither Ext.P5 nor Ext.P8 refers even remotely to Ext.R1(b) as one of the factors that has weighed with the University to transfer the petitioner. Thus, it is to be held that the writ petition does not suffer from the vice of suppression of material facts.
In re: Issue No.2:
14. The learned Standing Counsel has repeatedly asserted that when many people have been transferred, only the petitioner has chosen to lay challenge against Ext.P5 and that any intervention by this Court would affect the administrative interest of the respondent University.
15. As a corollary, we may have to consider whether undisclosed reasons, or reasons which have collaterally been brought forth can have any impact on the adjudication of an administrative action. The proposition of law in this regard, as has been laid down by a Constitution Bench of the Hon'ble Supreme Court in Mohinder Singh Gill (supra), stands undisturbed to this day. It is instructive to refer to the observation of the Constitution Bench, which is as follows:
“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16] :
‘Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.’ Orders are not like old wine becoming better as they grow older.”
16. Thus, it is beyond any cavil that an order of an authority is required to be sustained on the strength of the reasons supplied therein, rather than those that have been either supplemented or supplanted by way of defence in any judicial proceedings that may arise subsequently. It is profitable to extract a portion of Ext.P5 which contains the reasons, if any, that have weighed with the respondent University in effecting the transfer of the petitioner as well as other employees. The order is as follows:
“As per the Special Rules framed for the Self Financing Institutions of the University, all the teachers are liable to be transferred after 3 years of service from one centre to another centre of Self Financing Institutions.
Vide paper read as (2) above, it was resolved to make transfers of teaching staff once in every three years in all self financing Institutions including Principals/Regional Directors.
Therefore, the Registrar has accorded sanction for the transfer and postings of the following Regional Directors, Principals and HOD's working in various centres of SME with immediate effect.”
17. When this Court, in an earlier round of litigation, keeping Ext.P5 in abeyance, directed the Vice-Chancellor of the University to consider the representation filed by the petitioner, Ext.P8 came to be passed. It is further appropriate to examine the reasons supplied therein, which are as follows:
“Adverting to the references cited, I am to inform you that the Vice Chancellor has considered the representation cited (2) above in detail. The transfer is effected as per the decision of the Syndicate and the provisions of Special Rules in this regard. You had earlier sought change of guide at the University and transfer to School of Medical Education, Angamaly seeking permission to attach with the guide in LFM Research Centre, Angamaly. The transfer is effected as per rules in force. On going through the facts and circumstances, the Vice Chancellor has found that there is no merit in your representation and has rejected the same accordingly.
Hence, you are directed to comply with the transfer order referred to as (1) above in the light of the decision of the Hon'ble Vice Chancellor and the judgment dated 11.11.2014 of the Hon'ble High Court.”
18. Compendiously viewed, Ext.P5 discloses that the transfer was effected on the simple premise that the petitioner has completed three years of service in her present place of posting; Ext.P8 on the other hand reveals that the transfer has been effected on the ground that the petitioner had earlier sought change of guide at the University and also transfer to School of Medical Education, Angamaly.
19. There is no gainsaying the fact that at a particular point of time the petitioner submitted a representation. To expatiate, it can be stated that initially on 28.03.2014 the petitioner made a request seeking change of guide, as well as transfer to Angamaly, in her capacity as research student, but not as an employee. It has not been disputed by the respondent University that the petitioner's representation dated 28.03.2014 was rejected. Later, the petitioner renewed the request through Ext.R1(a), dt.01.10.2014, i.e., prior to Ext.P5 order. If one were to conclude that Ext.P5 transfer order was passed based on Ext.R1(a) request, it would be natural to assume that the said aspect would have been reflected in Ext.P5 order itself, but it was not. Even otherwise, what was sought through Ext.R1(a) was the change of research guide, as well as the change of centre. It has nothing to do with the petitioner's service in the capacity of the Head of the Department. If there had been any acceptance of Ext.R1(a) by the respondent University, there could have been a proper consideration of the same involving both the aspects of change of centre and change of research guide as well.
20. The learned counsel for the petitioner has submitted that the petitioner has sought the transfer only as a research student, more particularly from the beginning of the next academic year. I do not, however, see any such specific stipulation in Ext.R1(a) that the petitioner's request has to be considered only from the next academic year. Be that as it may, either the change of research guide or the change of research centre has nothing to do with Ext.P5 order of transfer, which is entirely on a different footing. Accordingly, notwithstanding the ratio of Mohinder Singh Gill, if one were to consider the validity of either Ext.P5 or Ext.P8, I am constrained to observe that it cannot be supported by any legally sustainable grounds.
21. It is requisite to examine the precedents cited at the Bar by the learned Standing Counsel for the respondent University. In Rajendra Ch. Bhattacharjee (supra) the Hon'ble Supreme Court has held that the transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and compelling reasons rendering the transfer order improper and unjustifiable. In N.K. Singh (supra), the Supreme Court has observed thus:
“Transfer of a Government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated.”
22. In K. Prassanna (supra), a learned Division Bench of this Court has observed that the guideline that transfer should not ordinarily be made during the middle of the academic year is meant for routine transfers and the same does not apply to the transfers made in exigencies of service. In K. Sajeevan (supra), a learned single Judge of this Court has distinguished the judgment of the Hon'ble Supreme Court in Karuppa Thevan (supra) by holding that once the transfer is effected with a view to improving the performance of any particular administrative division, more particularly in the face of deficiency of staff, the aspect of mid-academic year transfer should not come in the way.
23. The gravamen of all the above precedents is to the effect that the paramount consideration for every administrator while effecting transfers is the interest of the institution rather than the convenience of the individual. Time and again, almost aphoristically, the Courts have held that in the matters of transfer, the scope of judicial intervention is extremely limited and that unless the order is vitiated by mala fides or colourable exercise of power, which in fact is a facet of vires, there shall not be any intervention in a routine and mechanical manner, thus throwing the administration out of gear and depriving the administrator the discretion of selecting the best of the talents to suit any particular place of posting.
24. In the light of the admitted legal position, if we examine the present factual scenario, as has already been observed, neither Ext.P5 nor Ext.P8 reveals in so many words that notwithstanding the constraint of mid-academic year, the transfer was effected only to suit the administrative convenience or to meet the administrative exigencies. To put it otherwise, Ext.P5 simply speaks of the three-year time period, which cannot be an invariable yardstick or unyielding time stipulation, especially, in the face of the dictum laid down by the Hon'ble Supreme Court in Karuppa Thevan (supra). Insofar as Ext.P8 is concerned, though in a half-hearted manner the respondent University has tried to resurrect the aspect of Ext.R1(a) application made by the petitioner, I am afraid, even that cannot come to its rescue, for it has never been in consideration or contemplation of the authorities when Ext.P5 order was issued. Further, had it been an outcome of Ext.R1(a) application submitted by the petitioner, there could have been specific addressing of the issues raised therein, namely the change of guide, as well as that of the centre. Thus, viewed from any angle, the order of the respondent University either in Ext.P5 or in Ext.P8 cannot be sustained.
25. When the matter was being heard, this Court initially proposed to the respondent University to consider the submission of the learned counsel for the petitioner that the petitioner was willing to be transferred by the end of March so that she would not face any difficulty in protecting the academic interest, nascent though, of her son, who is said to be studying 5th standard. Even this Court has suggested to the learned Standing Counsel to persuade the authorities of the respondent University not to insist on the technicalities, if any, available to the University so that the morale of the employees is preserved, by making room for minor adjustments. Having sought time initially to get instructions, today the learned Standing Counsel for the respondent University has reported that the respondent University is not in a position to consider the request concessionally made by the learned counsel for the petitioner.
In the facts and circumstances, this Court cannot persuade itself to accept that either Ext.P5 or Ext.P8 is legally sustainable, containing reasons indicating any administrative exigencies not brooking any delay even up to March, 2015, thus transcending the ratio of Karuppa Thevan (supra). This Court, therefore, sets aside both Exts.P5 and P8, thereby permitting the petitioner to continue in the present place of posting until the end of the academic year. It is, however, made clear that, at the end of the present academic years, the respondent University is at liberty to exercise its administrative powers concerning the transfer of the petitioner to whichever place it deems fit.
sd/- DAMA SESHADRI NAIDU, JUDGE.
rv