JUDGMENT
K.A. Abdul Gafoor, J.
1. This petitioner is a Corporate management running private colleges in the State. That is not a disputed fact. The Corporate management does have colleges within the territorial jurisdiction of the Kerala University. That also is not in dispute. The power of the management to transfer the teachers in the colleges managed by them is also not in dispute. The transfer of teachers in different colleges within the Kerala University is governed by Ext. P1. Chapter 4-A is introduced governing intra-University transfer. That Statute enables a teacher to opt a particular college as a home college and another college as a college of least inconvenience. A teacher shall be posted to such a college depending upon the length of outside service of the concerned teacher in colleges other than the home college. Taking into account Ext. P1 and also other provisions in the First statutes governing conditions of service of teachers and non-teaching staff in private colleges the management issued transfer orders transferring respondent No. 3 onwards. The said respondents did not gel posting to their home colleges inspite of availability of vacancies. Instead, they were provided to the colleges chosen by them as of least inconvenience. As they did not get postings to their home colleges, as provided for in the statute; they preferred appeals before the Vice-Chancellor. The Vice-Chancellor heard the parties and set aside the transfer orders by Exts. P 21 to 24 orders. It was found that as there were vacancies in the home colleges, they ought to have been posted there and the contention of the management that they had issued transfer order following Statute 37 in Chapter 2 of the First Statutes was negatived by the Vice-Chancellor. It is in the above circumstances, the Management has approached this Court with this writ petition.
2. It is contended by the petitioner that Statute 37 in Chapter 2 of the First Statutes makes it mandatory that as far as women teachers are concerned they shall be posted to women colleges. When vacancies are available in women colleges, on transfer, women teachers shall be posted to women colleges causing least inconvenience to them, in obedience to the mandate contained in Statute 37 mentioned above. In this case, it was possible to accommodate them in women colleges. That is why transfer order was issued posting women teachers to women colleges and men teachers to college for men, taking into account their respective options to home colleges as well as to college for least inconvenience. Therefore, there was no reason for the Vice-Chancel for to interfere with the transfer order, the counsel for the petitioner contends.
3. It is contended by the University that the Vice-Chancellor has the power to interfere with the transfer order in an appeal. The Vice-Chancel for has also exercised his appellate power while setting aside the transfer order and directing its review. There is no stay in the Original petition challenging Ext. P1 amendment to the Statute. The Vice-Chancellor has taken the view that the provisions contained in Chapter 4-A introduced by Ext. P1 amendment, shall be adhered to by the management. Statute 37 in Chapter 2 of the First Statutes, makes it clear that the management need only follow the said provision so far as possible alone and one among the criteria to consider whether the said mandate need be followed is the option of the concerned teachers in terms of the provisions contained in Chapter 4-A of the statute as introduced by Ext. P1. Therefore, there is nothing illegal in the interference by the Vice-Chancellor; the counsel contends.
4. It is contended by the counsel for respondent No. 3 onwards, the affected teachers, that the provisions contained in Chapter 4-A as introduced by Ext. P1 amendment are to protect the interests of the teachers from the vagouries of the management in transferring teachers. The manager cannot wreak vengeance in transferring teachers to different stations. It is to avoid such arbitrariness on the part of the management introducing Chapter 4-A, to the First Statutes on Condition of service of private college teachers and members of Non-teaching staff in the private colleges, the teachers are given opportunity to opt for the home colleges as well as college for least inconvenience for getting transfer by reckoning length of service they had spent outside such opted colleges. Therefore, the provisions contained in Chapter 4-A have predominance over other conditions including Statute No. 37.
5. It is contended relying on the decision reported in A.K. Banerjee and Ors. v. Union of India, AIR 1984 S.C. 1130, that when there is repugnancy in relation to statutes, the later shall be followed meaning thereby that by reason of the later statute the earlier one should have been taken as superseded because the legislature has enacted the later statute knowing fully well about the provisions available in the earlier statute. It is also contended relying on Osmania University v. V.S. Muthurangam and Ors., A.I.R. 1997 S.C. 2758, that the phraseology used as far as possible in any statute shall be taken as to the extent possible. There need not be any impossibility of performance. Even if something is possible, that can be avoided if it is not to that extent possible to adhere to the statute.
6. The only issue thus involves in this case is whether interference with the transfer order by the Vice-Chancellor exercising his appellate power as per Statute 72A (12) in Ext. P1. is correct or not. In other words, whether the transfer order issued by the petitioner management could have been interfered with in the light of the provisions contained in Statute 37 of Chapter 2 governing the Conditions of service of private college teachers and members of Non-teaching, staff. Government have issued, exercising the power under Section 83 of the Kerala University Act, Notification dated 19.4.1979 making the First Statute “in respect of the conditions of service” other than pension, provident fund, gratuity, insurance and age of retirement of teachers and members of Non-teaching staff in private colleges named as the Kerala University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First Statutes, 1979. Chapter I thereof contains the ‘preliminary’ as in any other statute. Chapter 2, is with the caption “conditions of Service of Teachers in Private Colleges.” Chapter 3 is with the heading “Conditions of Service of Members of Non-Teaching Staff.” The heading given to Chapter 4 is “Disciplinary action against the teachers of Private Colleges.” It is after that a new Chapter is introduced by Ext. P1. with the heading “Intra University transfer of teachers of colleges under in corporate managements having colleges affiliated to the University.” Though the Statute is named as statute relating to Conditions of service of private college teachers and members of Non-Teaching Staff, Chapter 2 is separately headed as Conditions of service of teachers in Private Colleges meaning thereby the provisions therein are the specific conditions of service relating to teachers in private colleges. Statute 37 relied on by the petitioner management to transfer the teachers appears in that chapter meaning thereby that it is specific condition of service of the teaching staff in the private colleges. Statute 37 reads thus:
“37. Posting of women teachers in Women’s colleges:–In private Colleges exclusively set up for women, women alone shall be appointed as teachers, as far as possible.”
What is meant by this statute is not transfer of the teachers but posting of the teachers and also appointment of the teachers. That forms a condition of service as specifically included in Chapter 2 with the caption ‘Conditions of Service of Teachers. It is far later that Chapter 4-A was added to the First Statute as per Ext. P1 dated 6.8.1997. That is applicable only to the Teachers of Private Colleges under a Corporate agency where as Statute 37 is applicable to all the teachers of the private colleges whether they are under the corporate educational agency or otherwise. Clause 3 of Statute 72A introduced as per Ext. Pi is that a teacher shall be transferred and posted in his/her Home College in accordance with the provisions contained in Chapter 4-A of the First Statute. So, the posting in Home colleges in thus on transfer. It is a posting different to the posting made mention of in Statute 37 in Chapter 2 forming a specific condition of service of private college teacher. Necessarily, the provisions introduced as Chapter 4-A to the First Statute shall always be subject to the specific conditions of service as contained in Ch. 2 of the First Statute which includes Statute 37 relating to a posting of women teachers to women colleges as far as possible.
7. This conclusion can be arrived at if the provisions are viewed in another angle as well. As already mentioned above, the First Statutes were introduced in the year 1979. Chapter 4-A was introduced to that statute as per Ext. P1 only in 1997. When the rule making authority thus amended the Statute, it was well aware of the provisions contained in Chapter 2 of the First Statute governing posting of women teachers in private colleges. While introducing the provisions with regard to transfer in Chapter 4-A, the rule making authority did not make use of the valuable legal tool of non-obstantic clause in its hand to give the provisions newly introduced an overwhelming effect of other provisions including those contained in Chapter 2 which include Statute 37, In other words, it is keeping Statute 37 in tract and with full force and vigour that Chapter 4-A was introduced regulating transfer. So, the rule making authority has introduced amendment as per Ext. P1 regulating transfer, always subject to the specific conditions of service as contained in Chapter 2 of the First Statutes which includes Statute 37 regulating posting of women teachers in women colleges. On that ground also, the management cannot in effecting transfers, avoid the mandates in Statute 37. Thus, the regulation regarding transfer is always subject to Statute 37.
8. Again if we consider this issue in another manner, the irresistible conclusion is this. As already mentioned above, Chapter 2 of the First Statute is captioned “Conditions of Service of Teachers in Private Colleges” meaning thereby that the provisions contained in that Chapter are the specific conditions of service of private college teachers. The rule making authority while introducing Chapter 4-A was aware that the transfer shall not be a specific item regarding conditions of service. Had it been so, necessarily, the provisions regulating transfer as now contained in Chapter 4-A should have found place in Chapter-2 itself. Therefore, the rule making authority did not consider transfer as a specific condition of service to be included in Chapter 2 and thought of regulating transfer by separate statutory provisions introducing a separate Chapter other than Chapter 2 with the caption ‘Conditions of Service.’ Necessarily, the specific conditions of service shall always prevail. Posting of women teachers in women colleges in a specific condition of service as already mentioned above. On this basis also Statute 37 will have to be followed while effecting transfers in terms of Clause 3 of Statute (sic).
9. Exhibit P 25 is a table showing the names of respondent No. 3 onwards, the colleges where they were working before the transfer order, the colleges opted as home colleges, the colleges opted as with least inconvenience and the colleges to which they are transferred. It is clear from that table that respondent Nos. 7 to 9 and 11 are accommodated in N.S.S. college for Women, Karamana, Trivandrum. There are no available places to accommodate respondent Nos. 3 to 6 in N.S.S. College for Women at Karamana which is the home college opted by them. As there were sufficient posts available in Women College to accommodate women candidates like respondent No. 6 onwards except respondent No. 12, the management was liable to post them in Women’s college at Karamana because of the mandate contained in Statute 37 as mentioned above though their home college is M.G. College, Trivandrum. So also respondent Nos. 3 to 5 could not be posted to N.S.S. college for women, Karamana, their home college as there are other women teachers who shall be posted as far as possible in women colleges and there are no posts available after accommodating the women candidates like respondent No. 6 onwards, except respondent No. 12. The net result of the posting is that respondent Nos. 3 to 5 male candidates who have opted for women college at Karamana could not be posted there as respondent No. 6 onwards, except respondent No. 12, had to be accommodated in women college at Karamana following Statute 37 though their home college is M.G. College, Trivandrum. They could not have been posted to their home colleges because they being women candidates should have been posted following Statute 37 in N.S.S. college for women Karamana. Respondent No. 12 is a male candidate. His home college is M.G. College, Thiruvananthapuram and he has opted N.S.S. College for women at Karamana as a college of least inconvenience and was posted there because there was no vacancy available in M.G. College after accommodating the senior hands to their college of least inconvenience. Not only that he was the only teacher in Chemistry and there was no vacancy in Chemistry in M.G. College, Thiruvananthapuram. Therefore, he could have been posted only in the college opted as of least inconvenience. Therefore, it can easily be seen that the transfer effected by the management is in tune with Statute 37 and also Chapter 4-A introduced as per Ext. Pi without offending the provisions therein. When there is no post available in the opted home college, the concerned teacher shall be accommodated in the college opted as one with least inconvenience. That is what was done by the Management while effecting transfers.
10. The decision relied on by the Counsel for respondent No. 3 onwards in A.K. Banerjee and Ors. v. Union of India and Ors. (supra), does not have any relevance in this case because what is dealt with in that decision is repugnancy with two separate statutes whereas repugnancy that is contended herein is the repugnancy between the two provisions in the same statute which I have already answered as above. I have already found that there is no repugnancy and that statute 37 shall have an overwhelming effect being a specific condition of service to the provisions contained in Chapter 4-A introduced as per Ext. P1.
11. The decision reported in Osmania University v. V.S. Muthurangam and Ors., (supra), also does not improve the case of respondent No. 3 onwards as, to any extent it was possible, to post women teachers in women colleges. The Management is bound either as far as possible or to the extent possible to give posting to women teachers in women colleges.
12. These aspects have not been considered or adverted to by the appellate authority while issuing Exts. P 21 to P 24 orders. When the management had made a specific contention with regard to Statute 37, it was incumbent upon the appellate authority to consider the effect of that statute appearing in the chapter captioned in the ‘Conditions of Service’ as compared to the provisions introduced in Chapter 4-A to the statutes as per Ext. P1. Thus, the appellate authority did not examine the issue in the real perspective. So, Exts. P 21 to P24 are quashed. Interference of the transfer order was illegal.
O.P. is allowed to the above extent. No costs.