C.S. Dias JUDGMENT
C.S. Dias, J.
1. The petitioner is aggrieved by her transfer from the Thrissur Regional Centre to Tirur Campus of the first respondent.
2. The case put forth by the petitioner, in brief, is that she is working as an Associate Professor (in the Thrissur Regional Centre) of the first respondent. She is also entrusted with the responsibility of the Director, as additional charge, at the Thrissur Campus since 31.7.2018. Before joining at Thrissur, she worked at Palakkad, Thiruvananthapuram and other Stations.
3. While discharging her duties as Director, she had to encounter various obstacles from members of the staff, which she had brought to the notice of the second respondent, as per Ext. P1. Although Ext. P1 was submitted as early as in December, 2019, no decision has been taken. Ignoring the rightful claim of the petitioner to continue as Director on a temporary basis, the charge of the Director was handed over to the third respondent. Even though a three-member committee was constituted to enquire into Ext. P1, no report has been submitted till date. During the tenure as Director, the petitioner conducted fact finding enquiries on complaints concerning Teachers, including the third respondent, who not only did not co-operate with the petitioner, but created obstacles and misbehaved with her. The petitioner is in charge of the conduct of examinations, which got delayed due to the Covid-19 pandemic and are in progress. The petitioner had brought to the notice of the Registrar of the first respondent, as per Ext. P3, the misconduct of the third respondent and other Teachers.
4. The petitioner has further averred that, she has information that at the instance of the third respondent and others, who influenced the second respondent, the petitioner is proposed to be shifted to some other place pretending it to be on a temporary basis, which is with a view to discharge the petitioner from the position of Director and give the post to the third respondent, who is the favorite of the second respondent. The third respondent has been posted as Director by Ext. P4.
5. By Ext. P5, the petitioner has been suddenly shifted to the Tirur Campus, purportedly on academic interest. As Ext. P5 is patently mala fide, the petitioner has again complained that her transfer cannot be supported by any law. The petitioner has a school-going son, who cannot be left alone at home. Her husband is at Thiruvananthapuram, looking after to his aged parents. The petitioner has mobility issues due to leg pain. Without considering the grievances of the petitioner, Ext. P7 order has been issued, transferring the petitioner on a temporary basis to the Tirur Campus and the existing incumbent in Tirur has been transferred to Ettumannur. The petitioner received the transfer order through Whatsapp, probably sent by another colleague.
6. On the above stated facts, the petitioner challenges Exts. P5 and P7, inter alia, on the grounds that the transfer is not supported by any administrative reasons and that the orders are utterly malafide and abuse of exercise of power violating the petitioner's fundamental rights guaranteed under Articles 14, 16, 21 and 335 of the Constitution of India.
7. The petitioner has a further grievance that there are number of employees who are continuing in Thrissur Campus for the last many years, some of them for more than 20 years, but none of them have been touched. The petitioner being a member of a scheduled caste community, who has entered into an inter-caste marriage, has been discriminated on irrelevant considerations. Therefore, Exts. P5 and P7, to the extent it transfers the petitioner from Thrissur to Tirur, may be quashed.
8. The writ petition came up for admission on 10.6.2020. The learned Standing Counsel appearing for the respondents 1 and 2 sought time to file a statement. This Court directed the respondents 1 and 2 to maintain "status quo" in respect of posting of the petitioner at Thrissur Campus.
9. The respondents 1 and 2 have filed a counter affidavit, inter alia, contending that the transfer of the petitioner is purely on administrative reasons. The petitioner is unnecessarily dragging caste issues into a routine administrative order. The post of Campus Director is a post created for managing the affairs of the Centre, for which a suitable person is to be appointed. By Ext. R(1) (a) meeting held on 27.2.2020, it was decided to put on hold the admission process for all courses from 2020 onwards, until an own building is constructed for the Regional Centre at Thrissur.
10. The Department of Hindi at the Regional Centre, Thrissur, has only 25 hours workload for a week. The workload required for engaging a regular Faculty is 16 hours. So, there is no sufficient workload to engage two permanent Faculty members. On the contrary, the Department of Hindi at the Tirur Campus has a workload of 50 hours per week. The workload at Thrissur can be managed by engaging one regular Faculty and a Guest Faculty. Therefore, the posting of the petitioner at Tirur Campus is on academic grounds. The incumbent at Tirur has already been transferred and has taken charge at the Ettumannur Campus, as evidenced by Ext. R1(b).
11. The allegations in the writ petition regarding exam duty, ailment, and personal difficulty of the petitioner are only an eye-wash to abstain from attending duty at the Tirur Campus. The conveyance facilities to Tirur and other places are restored due to the easing down of the lock-down restrictions. Tirur is only 60 kms away from Thrissur. Moreover, a Teacher cannot raise a contention that she cannot be transferred from a current station, where she has been working for the last more than 8 years and has less outstation service when compared to the other Teachers. By Ext. P7 order, three teachers, including the petitioner, have been transferred from the Thrissur Centre.
12. The respondents 1 and 2 have relied on the decisions of the Hon'ble Supreme Court in Union of India and Others v. S.L. Abbas [MANU/SC/0370/1993 : (1993) 4 SCC 357] wherein it is laid down that, an order of transfer can be questioned in a Court or Tribunal, only when it is passed with malafides or passed in violation of a statutory provision.
13. The respondents 1 and 2 have averred that Ext. P7 order is issued in academic interest. Therefore, the writ petition is not maintainable. Hence, the writ petition may be dismissed.
14. The petitioner has filed a reply affidavit controverting the averments in the counter affidavit. The petitioner has, inter alia, contended that there are a number of employees who are continuing in the Thrissur Campus for a longer tenure than the petitioner. The petitioner has furnished the details of the persons who are senior to her at the Thrissur Campus. The petitioner has contended that her transfer is discriminatory and a clear case of victimisation. Therefore, she prays that Exts. P5 and P7 orders may be quashed.
15. Heard Sri. K. Ramkumar, the learned Senior Counsel appearing for the petitioner and Sri. Prasanth. S, the learned Standing Counsel appearing for respondents 1 and 2.
16. The learned Senior Counsel appearing for the petitioner argued that the respondents 1 and 2 have taken contradictory stands in Ext. P7, where it is mentioned that the petitioner's transfer is only temporary and in the counter affidavit, wherein it is contended that the petitioner has been transferred on a regular basis. According to the learned Senior Counsel, there cannot be a general transfer on a temporary basis. Ext. P6 complaint submitted by the petitioner has to be re-considered on its merits, by the second respondent or his superior authority, that too in an unbiased manner. Similarly, the fact that there are other employees who have posted at Thrissur for more than 10 years substantiates there is discrimination meted out on the petitioner as she is posted at the Thrissur Centre only for the last 8 years. The learned Senior Counsel also argued that the admission made by the respondents 1 and 2 in the counter affidavit that the Regional Centre at Thrissur has 25 hours workload for a week, substantiates that the petitioner's services are required because a single Faculty cannot teach for 25 hours a week. He invited the attention of this Court to Ext. P5, wherein, it is explicitly mentioned that the willingness of the teachers of the University was sought for before ordering the transfer, which according to him is not correct because Ext. P6 was submitted by the petitioner on 27.5.2020, prior to issuance of Ext. P7. The learned Senior Counsel contended that Exts. P5 and P7 have to be set aside and the respondents 1 and 2 be directed to permit the petitioner to continue in the Thrissur Campus at least till a final decision is taken on Ext. P6. He also pointed out that Thrissur as well as Tirur are hot-spots due to the Covid-19 pandemic. Hence, it is not safe for the petitioner to be transferred at this point of time.
17. The learned Standing Counsel appearing for the respondents 1 and 2 argued that Exts. P5 and P7 have been issued on administrative grounds and in academic interest. He contended that, by Ext. R1 (a) minutes of the special meeting of the Syndicate, it was resolved to put on hold the admission process in the University from 2020 onwards till an own building is constructed for the Regional Centre at Thrissur. The terminology temporarily transferred has been used in Ext. P7 only due to the above reason. On the commencement of new courses at the Regional Centre, additional Faculty in Hindi may be required. It is considering these aspects, that the 1st respondent decided to transfer the petitioner to Tirur, where there is a workload of 50 hours per week. In response to the argument of the learned Senior Counsel regarding the requirement of an additional Teacher at Thrissur, the learned Standing Counsel argued that, as the petitioner is a regular Faculty, her services are required at Tirur Campus, where there is a heavier workload. The workload at Thrissur can be managed by engaging a Guest Faculty, which is economically viable for the University. He also contended that the Faculty who are having longer service than the petitioner at Thrissur campus, are persons in different departments, whose services are required at Thrissur. Whereas, in the Department of Hindi, at present, as there are no sufficient number of students, the petitioner's services are not required. There is no discrimination shown against the petitioner. Hence he prayed that the writ petition be dismissed.
18. The sole question that arises for consideration in this writ petition is whether Exts. P5 and P7 orders, transferring the petitioner from the Thrissur Regional Centre to the Tirur Campus of the 1st respondent, are legal and justifiable.
19. The scope of judicial review, in matters relating to transfer and posting of employees under Article 226 of the Constitution of India, is well settled in a host of judicial pronouncements by the Hon'ble Supreme Court.
20. In Shilpi Bose and Others v. State of Bihar and Others [MANU/SC/0147/1991 : (1991) Supp 2 SCC 659] the Hon'ble Supreme Court observed as follows:
"4. In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons (unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day to day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders."
21. The above legal proposition has been reiterated by the Hon'ble Supreme Court in State of M.P. and Another v. S.S. Kourav and others [MANU/SC/0202/1995 : (1995) 3 SCC 270], wherein, it is laid down thus:
"4 ..............................................................The Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation ............................................................................................................................."
22. Again, in Somesh Tiwari v. Union of India and Others [MANU/SC/8494/2008 : (2009) 2 SCC 592], the Hon'ble Supreme Court observed as follows:
"20. 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 malafide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law."
23. A Division Bench of this Court in Gopinathan M and Another v. State of Kerala and Others [MANU/KE/1582/2014 : 2014 (4) KLT 285] observed as follows:
"11. Therefore, if the service of an employee is found to be not satisfactory at a particular place for whatever reasons, it would be open to the employer to take such remedial measures as are permissible under law to meet the requirements of that situation, like initiation of disciplinary proceedings or transferring the employee out of that place. If the employer opines that mere transfer of the employee would suffice the interest of the administration and accordingly orders transfer of such employee, such order of transfer need not necessarily be a measure of punishment to such employee."
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14. It is the choice of the employer to determine how long the service of an employee is required in a particular post or at a particular place. The order or transfer does not affect any legal rights of the employee and the Court or Tribunal cannot interfere with an order of transfer or posting, which is made in public interest or on administrative exigency. However, if the power of transfer is abused or the transfer is not made in public interest, but for collateral purposes and with oblique motive, the order would stand vitiated, warranting interference of the Court or Tribunal."
24. The kernel of the petitioner's grievance is that her transfer is instigated by the third respondent, who has been favoured by the second respondent. Regardless of Ext. P-1 to P-3 complaints, the third respondent has been posted as Director and, thereafter, the petitioner has been transferred, as per Ext.-7, without considering Ext. P-6 objection. The transfer is not supported by any administrative reason but is actuated by malafides.
25. The essence of the defence of the respondents 1 and 2 is that in Ext. R(1) (a) meeting it was resolved to put on hold the admission process for all courses from 2020 onwards, in the Regional Centre at Thrissur; therefore, the workload in the Hindi Department has considerably been reduced to 25 hours a week. Whereas, at the Tirur campus, the workload is 50 hours a week and the petitioner's service is required there. Exts. P-5 and P-7 are issued to meet an administrative exigency. The petitioner has been working at the Thrissur Centre for the last eight years and she is unnecessarily dragging caste issues to scuttle the transfer.
26. Ext. P-5 was provisionally issued on 02.05.2020, calling upon twelve Faculty members to register their complaints, if any, on or before 01.06.2020, to their transfer and posting. In response to Ext. P-5, the petitioner had submitted Ext. P-6 complaint (email) dated 27.05.2020, wherein she has sought to be retained at Thrissur Centre, due to various personal problems. She has no complaint of any mala fide action on the part of the respondents 1 and 2, as now pleaded in the writ petition. The 1st respondent, thereafter, issued Ext. P-7 order dated 05.06.2020, transferring 13 Faculty members to different Centres of the 1st respondent.
27. On a reading of Exts. P-1 to P-3 complaints submitted by the petitioner in October to December 2019, it is evident that they substantially pertain to the obstacles faced by the petitioner and the insubordination of some Faculty members, and the posting of the third respondent as Director. Other than for the said unsubstantiated allegations, there is no material to prove that the transfer was a result of mala fide action. Therefore, I am of the considered opinion that there is no malafides in the transfer of the petitioner, as alleged.
28. On the contrary, I find that the petitioner has been working in the present Centre for the last eight years. She was even given the responsibility of the Director, on an additional charge. Her complaints started after the third respondent was posted as Director in the place of the petitioner. It was pursuant to Ext. R(1) (a) decision of the Syndicate, new admissions for all courses from the year 2020, have been put on hold in the Regional Centre at Thrissur. Consequently, the workload in the Hindi Department has come down to 25 hours a week, and the petitioner's services are no longer required at the said Centre, instead the workload at the Tirur campus is 50 hours a week. Hence, the 1st respondent took the administrative decision to post the petitioner at Tirur, where her services are required, which in my opinion is justifiable and within the administrative realm of the University.
29. It is trite law in the aforecited precedents; no employee has any vested legal right to be perpetual posted at a Station of his/her choice. The arguments of the learned Standing Counsel that, the workload between 16-25 hours at the Thrissur Centre, can be managed with one regular Faculty and a Guest Faculty, for economic reasons seems to be realistic and within the domain of the University. Also, the argument that, the Faculty who have been posted for more than eight years at the Centre are because they are the sole regular Faculty in their respective Departments is convincing. I also find force in the stand of the respondents 1 and 2 that, they have used the term "temporary" in column four in Ext. P-7, even though it is a general order of transfer, as against the name of the petitioner because the petitioner has been posted in Tirur due to the workload at the said Campus. I don't find any legal substance in the petitioner's contention that her transfer would adversely affect her school-going son and her health, and further, it is dangerous for her health to join Tirur due to the Covid-19 pandemic. As pointed out by the respondents 1 and 2, Tirur is only 60 kilometres from Thrissur.
30. On an anxious consideration of the rival pleadings, the arguments of the respective counsel for the parties and the enunciation of law in the aforecited precedents, I am of the firm opinion that Exts. P-5 and P-7 orders passed against the petitioner are not vitiated by malafides, but are passed to meet administrative exigencies and is an incident of service, and is therefore legal. I do not find any ground warranting interference by this Court, in the exercise of its powers under Article 226 of the Constitution of India, in the transfer of the petitioner as per Exts. P-5 and P-7 orders. Resultantly, this writ petition is dismissed.
At the time of pronouncement of judgment, the learned counsel appearing for the petitioner sought for a week's time to enable the petitioner to join the Tirur Campus. The learned Standing Counsel appearing for the respondents, on instructions, submitted that the petitioner can be given a week's time to join the Tirur Campus. The said submission is recorded. The petitioner is permitted to join the Tirur Campus of the 1st respondent on or before 1.7.2020.
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