ORDER
K. Sreedhar Rao, J.
1. The petitioner institution is running an Arts college in Sindgi Town . The 5th respondent is appointed as lecturer in political science in the college of the petitioner in the year 2000-01. The student ratio fell below required bench mark rendering the 5th respondent a surplus staff without sufficient work. The third Respondent passed an Order deputing 5th Respondent to the college of the 4th respondent where there was sufficient work load. The third Respondent inspected the college of the petitioner and found that the situation had improved and there was sufficient work load for the political science lecturer and passed an Order at Annexure-A dated 3.1.2003 cancelling the deputation and re- posted the 5th Respondent to the college of the petitioner.
2. The government by Order at Annexure-B as a special case transferred the 5th Respondent to the college of the 4th Respondent by shifting the post from the college of the petitioner to the college of the 4th Respondent.
3. It is the contention of the petitioner that Order at Annexure-B is arbitrary and bad in law and does not conform to the statutory requirements of Rule 12 of the Karnataka Educational Institutions (Recruitment and terms and conditions of service of Employees in aided colleges of Education and Teachers of training Institute) Rules 2001.
4. The provisions of Rule 12 is extracted hereunder for convenient reference:
“12. Transfer of employees from one aided institution to another aided institution:- (1) Transfer of an employee can be permitted by the competent authority subject to the following conditions.
(a) that there is need for filling up the post in terms of subject, strength and attendance.
(b) that the vacancy so proposed for transfer is a clear vacancy and is in accordance with the staffing pattern.
(c) the management has clearly mentioned the nature and cause of vacancy supported by facts.
(d) that an employee receiving salary grant from Government earlier is proposed for transfer in the place of another employee or post which is also included in salary grant and no employee occupying a post receiving salary grant is proposed for transfer to an unaided post.
(e) that both the management have consulted.
(2) The competent authority may grant permission to transfer in the following cases:-
(a) in the case of a request by the management or the employee for a transfer within the institution of the same management.
(b) in the case of request by management or the employee for a transfer to an institution of different management, with the consent of both the management.
Provided that in case of request by the management or the employee for a transfer within the institutions of the same management or request by an employee for a transfer to an institution belonging to a different management, the head of the department may accord permission for the same, subject to the condition that in respect of transfer involving different management, the employee earns the seniority in the concerned institution from the date of reporting for duty in the new institution. However, his service in the previous Aided Institution will count for the purpose of salary, leave and pensionary benefits. In all other cases of transfer effected within the same management the services in the previous institution shall count for seniority in the new Institution and his service in the previous institution of the same management shall count for salary, leave and pensionary benefits. Transfer Orders of the employees within the institution of the same management or different management shall be issued only by Director of Public Instruction (Research and Training).
5. The objection statement filed by the first Respondent would clearly disclose that at the instance of the MLA the impugned Order at Annexure- B is passed as a special case. There is no provision under the Education Act and Rules for the Government to shift the post from one aided Institution to other aided Institution. Nextly, regarding transfer of employee, from one management to other management the conditions laid down in Rule 12 have to be fulfilled. In the present case, there is of course, request of the 4th Respondent for posting a lecturer in political science from another institution having regard to the workload. Rule 12 contemplates that before Orders are passed by the competent authority both the managements have to be consulted. In case of request by management the consent of both the management management is necessary. The Government before passing Order vide Annexure -B, has not been consulted and taken the consent of management as required under Rule.
6. In that view of the matter, the Order passed at Annexure -B transferring the petitioner to the college of the 4th Respondent and shifting of the post from petitioners college is bad in law. Accordingly, the Order at Annexure – B is quashed. The consequent Order passed at Annexure -C by the third Respondent is also quashed.
7. The 4th respondent has filed an application that the post of political science lecturer is vacant, no permission is granted by the competent authority to fill up the post nor any eligible person is transferred from other institution to the college of the 4th respondent. The students in political science are put in great hardship and loss. Therefore, prayed for necessary direction in this regard. It is therefore, directed that the competent authority shall favourably consider the request of the 4th respondent and pass appropriate Orders in accordance with law.
8. Accordingly the Writ Petition is allowed as indicted above.
9. Learned H.C.G.P. is permitted to file memo of appearance within four weeks.