{"id":68668,"date":"2006-07-28T00:00:00","date_gmt":"2006-07-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/y-balachandra-babu-vs-the-district-educational-officer-on-28-july-2006"},"modified":"2017-04-23T19:35:02","modified_gmt":"2017-04-23T14:05:02","slug":"y-balachandra-babu-vs-the-district-educational-officer-on-28-july-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/y-balachandra-babu-vs-the-district-educational-officer-on-28-july-2006","title":{"rendered":"Y.Balachandra Babu vs The District Educational Officer on 28 July, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Y.Balachandra Babu vs The District Educational Officer on 28 July, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT\n\n\nDATED : 28\/07\/2006\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE P.JYOTHIMANI\n\n\nW.P.(MD)No.4816 of 2005,\nW.P.(MD)No. 11064 of 2005\nand\nW.P.M.P.(MD)Nos.1603, 10902, 5181 of 2005\n\n\nY.Balachandra Babu\t\t\t ... \tPetitioner in\n\t\t\t\t\t\tWP.(MD)No.4816 of 2005\n\nThe Corporate Manager\nRoman Catholic Schools,\n\"Thedal\" 10\/8-46 C, Bridge Ward,\nNear Fire Station,\nKuzhithurai,\nKanyakumari District - 629 163 \t\t... \tPetitioner in\n\t\t\t\t\t\tWP.(MD)No. 11064 of 2005\n\n\nVs.\n\t\n\n1.The District Educational Officer,\n  Kuzhithurai Educational District at\n  Marthandam,\n  Kanyakumari District.\t\t\t... \t1st Respondent in both the W.Ps.\n\n2.The Corporate Manager,\n  Roman Catholic Schools,\n  \"Thedal\" 10\/8-46 C, Bridge Ward,\n  Near Fire Station,\n  Kuzhithurai,\n  Kanyakumari District - 629 163\n\n\t\t\t\t\t... \t2nd Respondent\n\t\t\t\t\t\tin W.P.(MD)No.4816\/2005\n3.The Correspondent,\n  St.Antony's High School,\n  Kappukad - 629 162,\n  Kanyakumari District.\t\t\t... \t3rd Respondent in\n\t\t\t\t\t    \tW.P.(MD)No.4816 of 2005\n\n4.The District Educational Officer,\n  Thuckalay Education District,\n  Thuckalay - 625 175,\n  Kanyakumari District.\t\t\t... \t2nd Respondent in\n\t\t\t\t\t\tW.P.(MD)No.11064\/2005\n\n5.Y.Balachandra Babu.\n\t\t\t\t\t...\t3rd Respondent in\n\t\t\t\t\t\tW.P.(MD)No.11064\/2005\n\n\n(impleaded as per order of Court dated 28.07.2006 in WPMP.1603\/2006.\n\n\nPRAYER in W.P.(MD)No.4816 of 2005: Writ Petition filed under Article 226 of the\nConstitution of India praying for the issuance of a Writ of Certiorarified\nMandamus, to call for the records pertaining to the impugned transfer order of\nthe 2nd respondent in ref.No.EDN\/K\/CM\/FC79\/115\/2005, dated 31.05.2005 issued to\nthe petitioner, and quash the same and consequently direct the 2nd respondent to\nre-post the petitioner as School Assistant in the 3rd respondent school namely\nSt.Antony's High School, Kappukadu-629 162.\n\nPRAYER in W.P.(MD)No.11064 of 2005: Writ Petition filed under Article 226 of the\nConstitution of India praying for the issuance of a Writ of Mandamus, to direct\nthe second respondent District Educational Officer to consider and pass orders\non the proposal submitted by the petitioner-management to him dated 21.11.2005\n(Seeking approval for the purpose of disbursing grant-in-aid towards the salary\nfor the teacher Y.Balachandra Babu working as B.T.Assistant in St.Lawrence\nHigher Secondary School, Madathattuvilai) within a reasonable time.\n\n\n\n!For Petitioners   \t...\tMr.G.R.Swaminathan\n\t\t\t\t(In W.P.No.4816 of 2005)\n\t\t\t...\tMr.Issac Mohanlal\n\t\t\t\t(In W.P.No.11064 of 2005)\n\t\t\t\t\t\t\n^For 1st Respondent\t...\tMrs.Jessi Jeeva Priya,\n\t\t\t\tSpecial Government Pleader\n\t\t\t\t(In both W.Ps.)\n\t\t\nFor Respondents (2-3)\t...\tMr.Issac Mohanlal\t\t\t\t\t\n\t\t\t\t(In W.P.No.11064 of 2005)\n\n\n:ORDER\n<\/pre>\n
\t W.P.No.4816 of 2005, is filed challenging the transfer order passed by
\nthe second respondent dated 31.05.2005 by which, the petitioner who was a school
\nassistant working in St.Antony’s High School, Kappukadu, was transferred on
\nadministrative ground to St.Lawrence Higher Secondary School, Madathattuvilai
\nand consequently, for a direction against the second respondent to repost the
\npetitioner in the third respondent school, namely, St.Antony’s High School,
\nKappukadu, Kanyakumari District.\n<\/p>\n
\t2. The case of the petitioner is that he has joined in the third
\nrespondent school on 17.08.1979 as a School Assistant and he has served in the
\nsaid institution for the past 26 years.   It is due to the ill-will developed by
\nthe second respondent towards the petitioner, there was an order of suspension
\npassed against the petitioner, against which, the petitioner moved before the
\nCivil Court filing a suit in O.S.No.618 of 2004 on the file of the District
\nMunsif Court and the same is pending.\n<\/p>\n
\t3. According to the petitioner, the third respondent is a single unit
\nschool and not forming part of the corporate network.  However, the second
\nrespondent has been claiming as a corporate management, even though, it is a
\nseparate unit.\n<\/p>\n
\t4. It is also the case of the petitioner that the Diocese of Kottar had
\nearlier filed a writ petition before the Principal Bench of this Court in
\nW.P.No.3990 of 2003 for a direction against the authorities to recognise the
\nstatus of the writ petitioner and to recognise its status along with 57
\neducational institutions under the same corporate management and this Court has
\ndirected the authorities to consider the representation, and till date, the
\nauthorities have not granted such status to the Diocese of Kottar.  When the
\nthird respondent remains a single unit school, the second respondent by the
\nimpugned order dated 31.05.2005 has transferred the petitioner from the third
\nrespondent school and by an order dated 01.06.2005, the petitioner was relieved.\n<\/p>\n
\t5. The impugned order is challenged on various grounds including that the
\nthird respondent is an aided school from the State Government and though it is a
\nminority institution it is discharging the public duty and the order of transfer
\nis against the Tamil Nadu Private School (Regulations) Act and Rules made
\nthereunder.  Since the third respondent school is not coming under the corporate
\nmanagement category, the impugned order of transfer from the third respondent
\nschool is on the face of it illegal.\n<\/p>\n
\t6. The petitioner would also state that the transfer is not an incident of
\nservice and when there is no corporate management and the contract does not
\nprovide the same, there cannot be a transfer from one unit to another.  That
\napart, the petitioner would also state that the order of transfer is punitive in
\nnature.\n<\/p>\n
\t7. The second respondent in the writ petition in W.P.No.4816 of 2005 has
\napproached this Court by way of filing  Writ Petition in W.P.No.11064 of 2005
\npraying for a direction against the second respondent viz., the District
\nEducational Officer, Kanyakumari District to consider and pass orders on the
\nproposals submitted by the petitioner dated 21.11.2005 for disbursing grant-in-
\naid  towards the salary of the teacher Y.Balachandra Babu writ petitioner in
\nW.P.No.4816 of 2005, working as B.T.Assistant in St.Lawrence Higher Secondary
\nSchool, Madathattuvilai.  The said writ petition is filed consequent to the
\norder of transfer dated 31.05.2005 by which the writ petitioner in W.P.No.4816
\nof 2005 was transferred from the third respondent school which is the subject
\nmatter of dispute in the said writ petition in W.P.No.4816 of 2005.\n<\/p>\n
\t8. The second and third respondents in W.P.NO.4816 of 2005 who are the
\nwrit petitioners in the other writ petition in W.P.No.11604 of 2005 have filed
\nthe counter affidavit.\n<\/p>\n
\t9. The case of the second and third respondents is that Roman Catholic
\nDiocese of Kottar is a registered society and a recognised religious minority
\ninstitution, which is functioning as a corporate body.  The Diocese owned and
\nadministered 59 educational institutions in the revenue District of Kanyakumari,
\napart from several orphanages, Homes for the old and the handicapped and other
\ncharitable institutions.  The Bishop is the educational agency and General
\nManager of all the educational institutions and he is appointed as the Corporate
\nManager for the administration of all the schools.  The Diocese of Kottar
\ndivided into four vicariates namely Mulagumoodu Vicariate, Thiruthuvapuram
\nVicariate, Kottar Vicariate and Colachel Vicariate for administrative
\nconvenience.  Later on, Mullagumoodu vicariate and Thiruthuvapuram vicariate
\nwere combined together as a single corporate management.  All the 57 educational
\ninstitutions which are presently 59 are now in 2 vicariate brought under the
\ncorporative management and there are separate rules and statutes governing the
\ncorporative management.  According to the second and third respondents all the
\nschools under the control of the corporate management are from the single common
\nunit.  The common seniority list among the teachers of all schools are
\nmaintained apart from non teaching staff.  The staff of each school are
\ntransferred from one school to another school under the control of the corporate
\nmanagement without depriving the seniority and affecting any of the services of
\nthe teachers as well as the non teaching staff, the seniority of teachers are
\nretained whereever they go.  Even for promotion of all the eligible candidates
\nthe same will be considered by taking into account their services rendered in
\nall the schools under the control of the corporate management as qualifying
\nservice conditions.  The Department has also treated the corporate management
\nfor all purposes including deployment of staff from one school to another, the
\npromotion or transfer effecting orders by the management have been approved by
\nthe Department.\n<\/p>\n
\t10. The petitioner in W.P.No.4816 of 2005 was working as a B.T.Assistant
\nin St.Antony’s High School in Kappukadu till May 2005. Considering the overall
\neducational need of the schools and taking into consideration, the interest of
\nthe institutions, the second respondent has decided to transfer the writ
\npetitioner in the academic year 2005-2006 to another school viz., St.Lawrence,
\nHigher Secondary School, Madathattuvilai which is under the same corporate
\nmanagement.  The new school to which the petitioner has been transferred is only
\n15 kilo metres from the petitioner’s residence.  The petitioner was also
\nrelieved pursuant to the said transfer order and is now working in the
\ntransferred school.   The transfer is effected for the better management and of
\nall the schools under the corporate management and absolutely  with no
\ndislocation or harassment.  All along, all the schools under the corporate
\nmanagement of the second respondent have been treated as a single unit.
\nHowever, when the District Educational officer has taken different stand in the
\naffidavit filed in the writ petitioner’s suit in O.S.No.618 of 2004 it was
\nmisconception. In the interlocutory application, the Additional District Munsif,
\nKuzhithurai has rejected the said contention in the order dated 28.09.2004.  The
\nappeal in C.M.A.No.40\/2004 filed was also dismissed by the Sub Court
\nKuzhithurai. The second and third respondents are also denying the allegations
\nof petitioner’s plea is mala fide.\n<\/p>\n
\t 11. The first respondent \/ District Educational Officer, in both the writ
\npetitions has filed counter affidavit.\n<\/p>\n
\t 12. The case of the first respondent is that the third respondent school
\nas well as the school to which the petitioner has been transferred whereof
\nfunctioning as a single unit school and not under the corporate management.
\nThat apart, it is the case of the first respondent that the schools are
\nfunctioning as religious minority institutions and the Educational Department
\ncannot interfere with the administration of its schools.\n<\/p>\n
\t13. It is also the specific case of the first respondent that the
\nSt.Antony, Higher Secondary School, Kappukadu has not come under the corporate
\nmanagement of the second respondent and it is treated as a single unit.
\nHowever, the Educational Department has nothing to do with the transfer.\n<\/p>\n
\t14. Mr.G.R.Swaminathan, learned counsel for the petitioner in W.P.No.4816
\nof 2005 would submit that even a reference to the appointment order given to the
\npetitioner on 17.08.1979 shows that he was appointed under the management of the
\nthird respondent school and there is absolutely no clause regarding the transfer
\nto any other schools.\n<\/p>\n
\t15. The learned counsel by relying  upon the Full Bench judgment of this
\nCourt rendered in The Correspondent, Malankara Syrian Catholic School,
\nMarthandam, Kanyakumari District Vs. J.Rabinson Jacob and others reported in
\n1998 (3)M.L.J, 595 would submit that the transfer is not an incident of service
\nespecially in the circumstance that the minority corporate management is not
\nrecognised by the authorities and the minority institutions are not affiliated
\nas one unit and therefore, cannot transfer the teachers in different units
\nestablished and administered by it and such power is not inherent power of
\ntransfer.  According to the learned counsel, inasmuch as in the appointment
\norder stated above, there is no provision regarding the petitioner from one
\nschool to another school, the transfer cannot be treated as one of inherent in
\nnature.\n<\/p>\n
\t16. According to the learned counsel for the petitioner, the judgment of
\nthe Division Bench of this Court in the Manager  R.C.Schools, Salem Social
\nServices Society, Alagapuram, Salem and another Vs. G.Vincent Paulraj, Salem -7
\nand another reported in 2003 (4) CTC 65 holding that the policy of the Tamil
\nNadu Private Schools(Regulations) Act, 1973 does not prohibit more than one
\nschool being run by the same corporate body, has no application on the facts and
\ncircumstances of the case, for the reason that the order of appointment issued
\nto the petitioner was by the Manager of St.Antony High School, Kappu Kadu and
\nnot by the second respondent.\n<\/p>\n
\t17. The learned counsel also relied upon a letter of the Bishop and the
\nGeneral Manager Diocese of Kottar, dated 22.05.2000, quoting the resolution of
\nthe Kottar, Diocese, stating that even though all the schools were under the
\nKottar R.C. Diocese every school has been treated as a single unit and in that
\nview of the matter, it was decided by the Diocese to apply for recognition of
\nthe Corporate management.  Further, the learned counsel would state that based
\non the said resolution, the second respondent has moved this Court by filing
\nW.P.No.3990 of 2003 for a direction against the educational authorities to
\nrecognise the status of the 57 educational institutions to be treated  under the
\ncontrol of the corporate management and this Court in the order dated 17.03.2003
\nwhile categorically concluding that the authorities has not yet passed any order
\nhas directed the authorities to pass orders.  While it remains a fact that the
\nauthority has not passed any order recognising the corporate status of the
\nsecond respondent, in addition to the order of appointment given to the
\npetitioner, factually the second respondent has not been recognised as a
\ncorporate management and in view of the same, the third respondent should be
\ntreated as single unit. Therefore, the transfer made under the impugned order is
\nnot sustainable. He would also submit that a decision given in interlocutory
\napplication by a civil Court which has been confirmed on appeal in C.M.A.No.40
\nof 2004 even though the same may be true, that was only in the interlocutory
\nstage, and not  a  decision on merit, since the suit in O.S.No.618 of 2004 is
\nstill pending adjudication.  Therefore, according to the learned counsel for the
\npetitioner, inasmuch as the transfer is not an incident of service and even on
\nfactual position also, the second respondent can never be treated as a corporate
\nmanagement and in view of the same, he would contend that the impugned order of
\ntransfer has no legal basis whatsoever.\n<\/p>\n
\t18. Per contra, Mr.Issac Mohanlal, learned counsel appearing for the
\nsecond and third respondents, who are the petitioners in W.P.No.11064 of 2005
\nwould submit that it is the diocese which is the educational agency and the
\nsecond respondent is having a common seniority list of all teachers in all the
\nconstituent schools  numbering 59 schools.   The transfer which is made for the
\npurpose of better administration of all the schools and not as a punishment. On
\nthe other hand, the transfer has been effected for the purpose of utilising the
\nservices of the expertise teaching of the petitioner.  It is also his contention
\nthat even for the purpose redeployment, the second respondent has been treated
\nas a corporate management and in these years all the 57 schools have been
\ncontrolled by the corporate management namely, the second respondent.  By
\neffecting the impugned transfer on the petitioner, the petitioner’s service
\ncondition is not affected and it does not involve a stigma on the career of the
\npetitioner.\n<\/p>\n
\t19. That apart, the petitioner having accepted the transfer and is now
\nworking in the transferred school for the past one year. On the other hand,
\nanother person posted in the third respondent school in the place of the
\npetitioner and his transfer has been approved.  It is also the case of the
\nlearned counsel for the second and third respondents that the petitioner is very
\nwell aware that all the schools were under the control of the common corporate
\nmanagement and the  common seniority has been prescribed in these years and at
\nno point of time, the petitioner ever raised his objection.\n<\/p>\n
\t20. The learned counsel would rely upon the rules and regulations for
\nschools in the corporate management of Roman Catholic Diocese of Kottar to
\nsubstantiate the case that ever since the said rule has come into effect namely,
\n22.05.2000, the corporate management has been in existence.  The rule
\nspecifically states that the secretary cum treasurer has power of effecting
\ntransfer of any of the members of staff among the schools constituted under the
\ncorporate management.  The petitioner having become the teacher and working
\nunder the second respondent management cannot plead ignorance of the same.  The
\nlearned counsel further, would rely upon the communication of the Chief
\nEducational Officer dated 24.06.2005 by specifically stating the second
\nrespondent as a corporate manager or Roman Catholic Schools, Kuzhithurai.  He
\nwould also rely upon another communication of the Chief Educational officer
\naddressed to the second respondent dated 24.06.2005 under which while
\nconsidering the plea of redeployment for the year 2004-2005, the Chief
\nEducational Officer has specifically stated that the second respondent as
\ncorporate management and stated that there are no surplus teachers.  In view of
\nthe said factual position, according to the learned counsel for the second and
\nthird respondents, it cannot be said that the educational authorities have not
\nrecognised the second respondent such corporate management of all the schools
\nunder its control.  According to the learned counsel, there is absolutely no
\nprovision under the Tamil Nadu Private Schools (Regulations) Act and Rules for
\nthe purpose of approval of the corporate body from the educational authorities.
\nHe would also rely upon the judgment of this Court rendered in The Management of
\nPapanasam Labour Welfare Association Higher Secondary school Vikramasingapuram –
\n627 425 rep by its Secretary Vs. The Chief Educational Officer, Tirunelveli-9
\nand 6 others reported in 1998 (III) CTC 753. In that case, while referring about
\nthe earlier judgment of this Court rendered in The Management of Hindu and
\nSaraswathy Middle Schools etc. Vs. Government of Tamil Nadu in W.P.No.9649 of
\n1982 by order dated 05.10.1990 holding that in respect of the schools under the
\ncorporate management two separate school committees are not necessary, this
\nCourt has specifically stated that “The law does not say that the petitioner
\nmust get approval as corporate body”.\n<\/p>\n
\t21. Therefore, according to the learned counsel for the second and third
\nrespondents, there is no prohibition of constitution of the corporate body under
\nthe Act and therefore, it should be deemed to be a permission granted to have
\nsuch corporate management.  The learned counsel would further state that the
\nFull Bench of this Court rendered in The Correspondent, Malankara Syrian
\nCatholic School, Marthandam, Kanyakumari District Vs. J.Rabinson Jacob and
\nothers reported in 1998 (3)M.L.J, 595 even though has taken the view that each
\nschool should be treated as a separate unit, has ultimately decided that the
\nquestion whether transfer between one school from among other corporate school
\nis an incident of service has to be taken in the facts and circumstances of each
\nand every case and is a question of fact. That was a case wherein 13 schools in
\nthe District of Kanyakumari under the control of M.K. Syrian Catholic Diocese
\nwere recognised individually as a separate entity.  The management has
\nmaintained seniority list for each individual school as a unit and there was no
\ncommon seniority list for all the schools run by the society.  Therefore,
\naccording to the learned counsel for the second and third respondents, it was
\nbased on the facts and circumstances of the said case, that the Full Bench of
\nthis Court has come to the conclusion regarding the corporate management and
\ntransfer among the schools whereas considering the 57 schools under the control
\nof the second respondent they are treated as one corporate body and there has
\nbeen a common seniority list among the teachers of all the schools and by
\neffecting the transfer, the service conditions of the teachers are not affected
\nand therefore, according to him, on the facts and circumstances of the present
\ncase, the transfer should be treated as an incident of service.\n<\/p>\n
\t22. Even by applying the ultimate decision of the Hon’ble Full Bench of
\nthis Court, according to the learned counsel for the petitioner, even though,
\nthe Tamil Nadu Private Schools (Regulations) Act does not contain any word about
\nthe corporate body, an analogy to a similar act in respect of colleges viz.,
\nTamil Nadu Private Colleges (Regulations) Act and Rules made thereunder
\nespecially Rule 15(c) which used the term “corporate body” of the management.
\nTherefore, according to the learned counsel when the two acts which are similar
\nand in one act namely relates to colleges, the corporate body is used, it should
\nbe made applicable to the private schools also.\n<\/p>\n
\t23. This is apart from the contention raised by the learned counsel that
\nwhile the Private Schools Act does not prohibit having a corporate management
\nwhile including a clause in the Rules, it  should be deemed to be a permission
\ngranted to have the corporate management.  It is in this regard, the learned
\ncounsel placed reliance on another judgment of the Division Bench of this Court
\nrendered in the Manager  R.C.Schools, Salem Social Services Society, Alagapuram,
\nSalem and another reported in 2003 (4) CTC 65. In that case, the Division Bench
\nof this Court while dealing with the Diocese of Salem establishing and
\nadministering 43 schools, and considering the right of the corporate management
\nto transfer the teachers from one school to another under its control in
\naccordance with the provisions of the Tamil Nadu Recognised Private Schools
\n(Regulations) Act 1973 has held that the transfer can be resorted to, if it is
\nan incident of service according to the terms of contract between the management
\nstating that the management cannot deprive of their benefits of service prior to
\nthe said transfer.\n<\/p>\n
\t24. The learned counsel would submit that the Division Bench has clearly
\nheld that the Full Bench of this Court reported in 1998 3 M.L.J 595 was made
\napplicable only on the facts and circumstances of the case wherein there was no
\ncommon seniority maintained by the petitioner therein and held that the ratio of
\nthe decision of the Full Bench is that the transfer is not prohibited by the
\nprovisions of the Act that if in a given case it is shown that the transfer is a
\ncondition of the teacher having regard to the terms and conditions of the
\ncontract between the parties, then the same is permissible.\n<\/p>\n
\t25. According to the learned counsel for the second and third respondents,
\nconsidering the fact that the second respondent\/management is maintaining the
\ncommon and overall seniority list among all the teachers working in the
\nconstituent schools, it should be taken that the transfer which is well within
\nthe knowledge of the petitioner and other teachers, it should be taken that the
\ntransfer is an incident of service in this case.\n<\/p>\n
\t26. The learned counsel also would rely upon the definition of Educational
\nAgency under Section 2(3) of the Tamil Nadu Recognised Private Schools
\n(Regulations) Act which states as follows:\n<\/p>\n
\t“3.Educational agency in relation to–\n<\/p>\n
\t a) any minority school, means any perons who, or body or persons which,
\nhas established and is administering or purposes to establish and administer
\nsuch minority school; and\n<\/p>\n
\t b) any other private school, means any person or body of persons
\npermitted or deemed to be permitted under this Act to establish and maintain
\nsuch other private school;”\n<\/p>\n
\t26. On the other hand, the definition of the term, “educational agency” is
\ndefined under Section 2(4) of the Tamil Nadu Private Colleges (Regulations) Act
\n1976 states as follows:\n<\/p>\n
\t\t“4)”educational agency” in relation to–\n<\/p>\n
\t  a) any minority college, means any person who, or body of persons which,
\nhas established an is administering or proposes to establish and administer such
\nminority college; and\n<\/p>\n
\t   b) any other private college, means any person or body of persons
\npermitted or deemed to be permitted under this Act to establish and maintain
\nsuch other private college;”\n<\/p>\n
\t27. However, in Rule 11(4)(ii) of the Private Colleges Rules, 1976 which
\nstates as follows:\n<\/p>\n
\t“11.Conditions of service, etc., of teachers and other persons in
\ncollege:…..\n<\/p>\n
\t4 (i) Promotions in respect of teaching staff shall be made on grounds of
\nmerit and ability, seniority being considered only where merit and ability are
\napproximately equal, and in respect of non- teaching staff promotions shall be
\nmade on seniority basis, provided other conditions regarding qualification are
\nsatisfied.\n<\/p>\n
\t  ii) The committee shall fill up the posts by promotion or by direct
\nrecruitment.  The committee shall, while making promotion, consider the claims
\nof all the qualified teachers in that college.  if, however, none of the
\nqualified teachers in the college is found suitable for promotion, the vacancy
\nshall be filled up by direct recruitment by calling for applications from
\nqualified persons through the Press or by calling for a list of candidates from
\nthe Employment Exchange by following the rule of reservation ordered by the
\nGovernment from time to time for direct recruitment.\n<\/p>\n
\tExplanation:- For purposes of this rule, if an educational agency has
\nestablished and administered more than one college, then, the colleges under the
\ncontrol of that educational agency shall be treated as one unit”.\n<\/p>\n
\t28. According to the learned counsel for the second and third respondents
\nwhen once in respect of private colleges  where an educational agency runs more
\nthan one college and thus controls all the colleges the same shall be treated as
\none unit. Whileso, it should be taken that private schools also eligible for the
\nsaid benefits  which is given to the private colleges and the said benefits
\nshould be extended.  In this regard, the learned counsel would submit that the
\ncommunication of the educational authorities namely, the Chief Educational
\nOfficer, cited above, has categorically  stated the factual position that the
\nsecond respondent as a corporative management is running 57 schools.\n<\/p>\n
\t29. Learned counsel would also vehemently reiterate that inasmuch as it is
\nadmitted fact that the overall seniority maintained in respect of all the
\nteachers working in all the 57 constituent schools under the control of the
\nsecond respondent corporate management and such common seniority is in
\nexistence,  the impugned transfer is not  punitive in character, the service
\ncondition of the petitioner is not affected and he cannot have any objection
\nagainst the same.\n<\/p>\n
\t30. He would also further reiterate that the said common pool of teachers
\nbelonging to all the 57 schools under the control of the second respondent
\ncorporate management is in existence for many years and in such circumstances,
\nthe terms of employment which should be considered on the factual situation as
\ndecided by the Full Bench judgment stated above and as also subsequently
\nexplained by the Hon’ble Division Bench of this Court stated above, the power of
\ntransfer as exercised in the impugned  order should be treated as implied in the
\npresent case.  By considering the entire facts and circumstances of the case, it
\nshould be deemed that there is implied condition of transfer which was known to
\nthe petitioner as well as the other teachers.\n<\/p>\n
\t31. The learned counsel for the second and third respondents submitted by
\nmaking reliance Rule 15(4) of the Act which clearly states that “in respect of
\nCorporate Body running more than one single unit that body shall be treated as
\none unit for the purpose of this Rule”. According to the learned counsel, even
\nthough the said Rule may not be applicable to the second and third respondents
\ninstitutions which are the minority institutions, the rationale of the Rule
\ncontemplated the acceptance of such corporate management under the Tamil Nadu
\nRecognised Private Schools (Regulations) Act.\n<\/p>\n
\t32. Again, Mr.G.R.Swaminathn, learned counsel appearing for the writ
\npetitioner in W.P.No.4816 of 2005 by way of reply has placed reliance on various
\njudgments to show that  specific approval of the corporate management from the
\neducational authorities is required.  He would also submit that as far as Rule
\n15 is concerned, when the same is not applicable to the minority institution,
\nthat cannot be taken advantage of by the second and third respondents for the
\npurpose of acting against the general tenets of the Act as also the judicial
\nprecedents.\n<\/p>\n
\t33. The learned counsel would submit that even assuming that the
\npetitioner has made application in 2000, the same can never be treated as if the
\nsame is with full knowledge of the teachers. In any event, according to the
\nlearned counsel for the writ petitioner, if a law has conferred certain benefit
\nthe same cannot be waived.  He would also rely upon some other judgments
\nincluding 1999 Writ.L.R – 219, and 1991 L.W. 180 to show that every constituent
\nschool is a single unit as per the provisions of the Act.\n<\/p>\n
\t34. I have heard the rival contentions of the learned counsels on either
\nside and perused the entire records produced before me.\n<\/p>\n
\t35. At the outset, it is relevant to point out some of the factual aspects
\nconcerning these cases.  The third respondent school in W.P.No.4816 of 2005 as
\nalso the St.Lawrence Higher Secondary School, Madathattuvilai which are stated
\nto be under the control of the second respondent as their educational agency
\nalong with 57 other schools are all private aided minority schools governed by
\nthe provisions of Tamil Nadu Recognised Private Schools (Regulations) Act and
\nRules made thereunder, except those provisions which are not applicable to the
\nminority institutions.  The petitioner in W.P.No.4816 of 2005 has enclosed a
\nresolution of the Diocese of Kottar dated 16.05.2000 in which, the Diocese of
\nKottar has specifically passed the resolution stating that even though, the
\nsecond respondent educational agency has been controlling all the schools under
\none educational agency, the educational authorities have been treating each
\nschool as individual unit and therefore, it was decided to apply to the
\neducational authorities for approving the second respondent as a corporate
\nmanagement.  It was based on the said resolution, in fact, a writ petition was
\nfiled before this Court in W.P.No.3990 of 2003 by the second respondent for a
\ndirection against the Government as also the Director of School Education and
\nthe Director of Elementary Education to declare all the 57 educational
\ninstitutions under its control as a corporate management. This Court while
\ndisposing of the said writ petition by an order dated 17.03.2003 has directed
\nthe educational authorities to pass orders on the representation of the second
\nrespondent herein dated 22.05.2000 followed by a reminder on 08.11.2002  within
\na stipulated time.\n<\/p>\n
\t36. In a suit filed by the petitioner in O.S.No.618 of 2004 challenging
\nthe order of suspension, the District Educational Officer, Kuzhithurai, who is
\nthe first respondent herein has filed a written statement in November 2004
\nstating that St.Antony’s High School is a single unit management and not a
\ncorporate body since the same has not been recognised as a corporate body by the
\nGovernment or Educational Department. That was the pleading of the first
\nrespondent in the said suit filed by the petitioner against the order of
\nsuspension passed by the management.\n<\/p>\n
\t37. The question now to be considered is as to whether on fact, the
\neducational authorities have recognised the second respondent as a corporate
\nmanagement for the purpose of enabling the second respondent to control all the
\n59 schools as a common educational agency and to treat all the schools as a
\nsingle unit.  In this regard, it is relevant to point out a letter of the Chief
\nEducational Officer in  Na.Ka.No.6709\/A4\/03, dated 14.02.2005. That is the order
\npassed in respect of fixing the sanctioned strength of teachers in respect of
\nthe schools under the control of the second respondent viz., Diocese of Kottar.
\nThat letter by referring about the proceedings of the Director of School
\nEducation in Na.Ka.No.48937\/G3\/2000, dated 23.03.2002 states as follows:\n<\/p>\n
\t“ghh;it 1y; Fwpg;gpl;Ls;s gs;spf;fy;tp ,af;Feh; mth;fsJ brayKiwfspy;
\nnfhl;lhW kiwkhtl;l Mh;.rp. gs;spfis xU myfhf vLj;Jf;bfhz;L cghpahf gzpahw;Wk;
\nMrphpah;fis njitg;gLk; gs;spfSf;F gzpaplj;Jld; khw;wpf;bfhs;s ehfh;nfhtpy;
\nKjd;ikf;fy;tp mYtyUf;F Miz tHq;fg;gl;Ls;sJ.  mjd; tptuk; fj;njhypf;fg;gs;spfspd;
\nnkyhsUf;F Mah; ,y;yj;jpw;F ghh;it 2y; Fwpg;gpl;Ls;s ,t;tYtyff;fojk; thapyhft[k;
\nbjhptpf;fg;gl;Ls;sJ.”\n<\/p>\n
\t38. Therefore, as per the said letter, the Director of School Education in
\nhis proceeding dated 23.03.2002 has treated all the R.C. schools under the
\ncontrol of the Kottar Diocese as single unit for the purpose of deciding about
\nthe excess teachers in all the schools for the purpose of redeployment.  Even
\nthough, the said letter refuses to approve the appointment of certain teachers,
\na reference to the letter, shows that it remains a fact that the educational
\nauthority namely, Director of School Education has recognised the second
\nrespondent as a corporate management.\n<\/p>\n
\t39. It is the case of the second respondent in W.P.No.4816 of 2005 that
\nthe second respondent is a registered society governed by its rules and
\nregulations and a corporate educational Board has been constituted.  It is also
\nthe case of the second respondent in the said writ petition which is in fact not
\nin dispute that a common seniority is maintained for the teaching staff as well
\nas non teaching staff working in the various schools separately for each cadre
\nand by transferring the teachers as well as non teaching staff from one school
\nto another under the management of the second respondent and their seniority is
\nnot affected and service benefits are also not taken away.\n<\/p>\n
\t40. The learned counsel for the second respondent in w.P.No.4816 of 2005
\nhas also produced common seniority list of all the schools under the control of
\nthe second respondent management as on 01.06.2005 and I find that the seniority
\nof the teachers are not affected and the service conditions are not changed.\n<\/p>\n
\t41. It is based on the above said facts, it is the contention of the
\nlearned counsel appearing for the second and third respondents that when once
\nthe impugned order of transfer of the petitioner from the third respondent
\nschool to another school under the management as its educational agency was
\neffected, the same cannot be assailed by the petitioner as if the corporate
\nmanagement of the second respondent is not recognised.  That apart, it is the
\ncase of the second respondent that the service condition of the petitioner is
\nnot affected and the transfer is effected within the district and the
\ntransferred school is near the petitioner’s residence and that pursuant to the
\nimpugned order of transfer, the petitioner was relieved from the third
\nrespondent school on 02.06.2005.\n<\/p>\n
\t42. The learned counsel also would submit that the petitioner has been
\nrelieved from the third respondent school on 02.06.2005 and the same has been
\nendorsed by the District Educational Officer, Kuzhithurai on 18.11.2005 and in
\nfact, the order of the transfer has been communicated by the correspondent to
\nthe District Educational Officer, Thuckalay on 21.11.2005 for the purpose of
\napproval of the transfer.  The said District Educational Officer of his letter
\nO.Mu.No.12382\/A2\/2005, dated 25.11.2005 has also called for certain other
\nparticulars and the same have been submitted by the Correspondent to the
\nDistrict Educational officer, Thuckalay on 28.11.2005.  In view of the said
\nfactual position, according to the learned counsel for the second respondent and
\nconsidering the earlier recognition of the corporate management of the second
\nrespondent by the Director of School Education, the writ petition is not
\nmaintainable.\n<\/p>\n
\t43. Even though, Mr.G.R.Swaminathan, learned counsel appearing for the
\npetitioner in W.P.No.4816 of 2005 would submit that in the appointment order
\ngiven to the petitioner on 17.08.1979, it has been signed by the Manager
\nSt.Antony’s High School, Kappukad and such order has not been issued by the
\nsecond respondent and therefore, it cannot be said that the petitioner has
\naccepted the corporate management of the second respondent, I am of the
\nconsidered view that the recognition of the second respondent as a corporate
\nmanagement is in the hands of the educational authorities and inasmuch as the
\nfactual situation stated above, it cannot be said that the educational
\nauthorities have not recognised the second respondent as corporate management.
\nI am of the considered view that there is certainly a force in the argument of
\nthe learned counsel of the second respondent in W.P.No.4816 of 2005 in this
\nregard.\n<\/p>\n
\t44. Therefore, on the facts stated above and especially in the
\ncircumstance that the letter for approval of the transfer of petitioner effected
\nunder the impugned order is under the consideration of the educational
\nauthorities, I have no hesitation to come to the conclusion that the writ
\npetition in W.P.No.4816 of 2005 at this stage is misconceived.\n<\/p>\n
\t45. Now, the next question which should be considered is about the writ
\npetition filed by the second respondent in W.P.No.4816 of 2005 who is the
\npetitioner in W.P.No.11064 of 2005 seeking for a direction against the second
\nrespondent District Educational officer to consider and pass orders on the
\nproposal submitted by the petitioner management dated 21.11.2005 seeking
\napproval for the purpose of disbursing  grant-in-aid towards the salary for the
\nteacher (Y.Balachandra Babu) working as B.T.Assistant in St.Lawrence Higher
\nSecondary School, Madathattuvilai.\n<\/p>\n
\t46. As I have narrated above, in fact, the said proposal is in the form of
\napproval of transfer which is impugned in the first writ petition and the said
\nproposal is still pending with the second respondent in W.P.No.11064 of 2005.\n<\/p>\n
\t47. On the facts stated above, it goes without saying that inasmuch as, in
\nthe letter of the Chief Educational Officer, Nagercoil dated 14.02.2005
\nreferring to the proceedings of the Director of School Education dated
\n23.03.2002 recognising the petitioner in W.P.No.11064 of 2005 as a corporate
\nbody, I am of the considered view that the second respondent cannot take any
\nother decision contra to that.\n<\/p>\n
\t48. It is in these circumstances, necessary to consider another aspect as
\nargued by the learned counsels.   Mr.Issac Mohanlal, learned counsel appearing
\nfor the petitioner in W.P.No.11064 of 2005 would state that even assuming that
\nthe factual situation is otherwise, by applying the provisions of the Tamil Nadu
\nRecognised Private Schools (Regulations) Rules especially, with reference to
\nRule 15(4)(ii)(c), in respect of the corporate body running more than one school
\nall these schools under the said body shall be treated as one unit for the
\npurpose of the said Rule 15 which speaks about the qualifications, conditions of
\nservices of teachers and other persons.\n<\/p>\n
\t49. He would also refer to a similar provision under the Tamil Nadu
\nColleges(Regulation) Rules especially Rule 11(4)(ii) in which, the explanation
\ncategorically shows that in cases where the Educational Agency establishes and
\nadministers more than one college, all the colleges under the control of that
\neducational agency shall be treated as one unit.  Therefore by making an analogy
\nbetween these two acts which are almost similar, the learned counsel would state
\nthat even though the act has not prohibited the formation of such corporate
\nmanagement, by virtue of the enablement given under the rules framed under the
\nAct, the writ petitioner in W.P.No.11064 of 2005 has a definite right to be
\ntreated as a corporate unit by treating all the 59 schools under its control.\n<\/p>\n
\t50. On the other hand, Mr.G.R.Swaminathan, learned counsel appearing for
\nthe petitioner in W.P.No.4816 of 2005 would submit that while statute in the
\nform of the Act does not provide for a corporate body, a reference made in the
\nRule cannot be deemed to be a right on the part of the second respondent viz.,
\nDiocese of Kottar to assume itself as a corporate management having control over
\nall 59 schools, unless and until, the said status is approved by the
\neducational authorities.  According to him, when once in a suit filed by the
\npetitioner in a Civil Court, challenging the order of suspension, the District
\nEducational Officer has filed the written statement stating that the second
\nrespondent Diocese of Kottar is not recognised as a corporate management, it
\nshould be presumed that such a status has not been conferred on the second
\nrespondent Diocese at all.  In that regard, he would rely upon the Division
\nBench judgment of this Court rendered in  W.A.No.122 of 1997, in Sri Kasi Mutt,
\nEducational Agency of Sri Kumaragurubara Swamigal Arts College, Srivaikuntam and
\nSri Kasivasi SwaminathaSwamigal Arts College, Tirupanandal rep. by its
\nPresident, Srilasri Kasivasi Muthukumaraswamy Thambiran Swamigal Vs. The
\nCommissioner of Collegiate Education, Chennai and others.  That was a case
\nwherein the petitioner has filed a writ petition for a declaration that the
\ncolleges in question are established and administered by minority institutions
\nunder Article 30(1) of the Constitution of India.  While deciding the case, the
\nHon’ble Division Bench has held that the approval of the competent educational
\nauthority is required to treat an educational agency as a single corporate unit.
\nTherefore, according to the learned counsel, the second respondent in
\nW.P.No.4816 of 2005 who is the writ petitioner in W.P.No.11064 of 2005 cannot
\npresume itself to be a corporate body.\n<\/p>\n
\t51. According to the learned counsel, Rule 15 of the Tamil Nadu Recognised
\nPrivate Schools (Regulations) Rules is not applicable to the minority
\ninstitutions and therefore, the second respondent Diocese cannot take advantage
\nof the same.\n<\/p>\n
\t52. On the face of the said rival submissions made by the learned counsels
\nin this regard, it is relevant to extract some of the provisions of the Tamil
\nNadu Recognised Private Schools as well as Colleges Act. Before coming into
\nthat, on the analysis of the Tamil Nadu Recognised Private Schools
\n(Regulations) Act, 1973 as well as the Tamil Nadu Private Colleges (Regulation)
\nAct 1976, it shows except that they are applicable to the aided schools and
\naided colleges respectively, all other provisions are the in pari materia the
\nsame.\n<\/p>\n
\t53. Now, for a reference to Rule 15(4) of the Tamil Nadu Recognised
\nPrivate Schools (Regulations) Rules 1974 it is relevant to extract the same
\nwhich runs as follows:\n<\/p>\n
\t“15.Qualifications, conditions of service of teachers and other
\npersons:……..\n<\/p>\n
\t  4)(i) Promotion shall be made on grounds of merit and ability, seniority
\nbeing considered only when merit and ability are approximately equal.\n<\/p>\n
       (ii) Appointments to the various categories of teachers shall be made by
\nthe following methods:-\n<\/p>\n
  \t\t   i)Promotion from among the qualified teachers in that school.\n<\/p>\n
\t    ii) If no qualified and suitable candidate is available by method (i)
\nabove-\n<\/p>\n
  \t      a) Appointment of other persons employed in that school, provided
\nthey are fully qualified to hold the post of teachers;\n<\/p>\n
\t\t     b) Appointment of teachers from any other school;\n<\/p>\n
\t\t     c) Direct recruitment.\n<\/p>\n
\tIn the case of appointment from any other school or by direct recruitment,
\nthe school committee shall obtain the prior permission of the District
\nEducational Officer in respect of Pre-primary, Primary and Middle School and
\nthat of the Chief Educational officer in respect of High Schools and Higher
\nSecondary Schools, Teachers’ Training Institutions setting out the reasons for
\nsuch appointment.  In respect of corporate body running more than one school,
\nthe schools under that body shall be treated as one unit for purpose of this
\nrule”. (Emphasis is mine)<\/p>\n
\t54. Likewise, the Tamil Nadu Private Colleges (Regulations) Rule 11(4) is
\nalso relevant to be extracted which runs as follows:\n<\/p>\n
\t“11.Conditions of service, etc., of teachers and other persons in
\ncollege:…..\n<\/p>\n
\t4 (i) Promotions in respect of teaching staff shall be made on grounds of
\nmerit and ability, seniority being considered only where merit and ability are
\napproximately equal, and in respect of non- teaching staff promotions shall be
\nmade on seniority basis, provided other conditions regarding qualification are
\nsatisfied.\n<\/p>\n
\t  ii) The committee shall fill up the posts by promotion or by direct
\nrecruitment.  The committee shall, while making promotion, consider the claims
\nof all the qualified teachers in that college.  if, however, none of the
\nqualified teachers in the college is found suitable for promotion, the vacancy
\nshall be filled up by direct recruitment by calling for applications from
\nqualified persons through the Press or by calling for a list of candidates from
\nthe Employment Exchange by following the rule of reservation ordered by the
\nGovernment from time to time for direct recruitment.\n<\/p>\n
\tExplanation:- For purposes of this rule, if an educational agency has
\nestablished and administered more than one college, then, the colleges under the
\ncontrol of that educational agency shall be treated as one unit”.(Emphasis is
\nmine)<\/p>\n
\t55. The reading of the said rules show that the educational authorities
\nrunning more than one schools or colleges are to be treated as one unit at least
\nfor the purpose of qualifications, conditions of service of teachers and other
\npersons employed in aided private schools and colleges respectively.  When a
\nquestion arose regarding the formation of two different school committees in
\nrespect of primary school and higher secondary school under the Tamil Nadu
\nPrivate Schools (Regulations) Act, 1973, this Court in the judgment rendered in
\nThe Management of Papanasam Labour Welfare Association Higher Secondary school
\nVikramasingapuram – 627 425 represented by its Secretary Vs. The Chief
\nEducational Officer, Tirunelveli-9 and 6 others reported in 1998 (III) CTC 753
\nhas held that “The law does not say that the petitioner must get approval as
\ncorporate body”.\n<\/p>\n
\t56. However, while dealing with the provisions of the Tamil Nadu Private
\nColleges (Regulations) Act 1976, especially relating to Rule 11(4), a Division
\nBench in the judgment rendered in W.A.No.122 of 1997, in Sri Kasi Mutt,
\nEducational Agency of Sri Kumaragurubara Swamigal Arts College, Srivaikuntam and
\nSri Kasivasi SwaminathaSwamigal Arts College, Tirupanandal rep. by its
\nPresident, Srilasri Kasivasi Muthukumaraswamy Thambiran Swamigal Vs. The
\nCommissioner of Collegiate Education, Chennai and others, has held as follows:\n<\/p>\n
\t“16.We hold that the approval of the first respondent is required to treat
\nthe educational agency as a single corporate unit.  We approve the view of the
\nlearned Single Judge that when an educational agency is having two or three
\ncolleges under its corporate control, it has the power to transfer the teachers
\nor the staff from one college to another, but it must be strictly in accordance
\nwith Rule 11(4) of the Rules relating to the conditions of Service being
\nmaintained by a single corporate unit”.\n<\/p>\n
A reading of the entire judgment shows that it relates to a case where the
\nDirector of Collegiate Education has not gone into the question is as to whether
\ntwo institutions are run by a single corporate unit it is on the facts of the
\nsaid case, the Hon’ble Division Bench of this Court has held that the approval
\nof the Commissioner of Collegiate Education would be required but insisting that
\nthe power to transfer has to be strictly in accordance with the Rules under
\nSection 11(4) relating to the conditions of the services being maintained by a
\nsingle corporate unit.\tIn fact, in the said judgment, the decision of the Full
\nBench of this Court, rendered in the Correspondent, Malankara Syrian Catholic
\nSchool, Marthandam, Kanyakumari District Vs. J.Rabinson Jacob and others
\nreported in 1998 (3)M.L.J, 595 was considered stating that the Full Bench was
\nconcerned about the institutions in question where it was not established before
\nthe Full Bench that the institutions were run under a single corporate unit.\n<\/p>\n
\t57. The Hon’ble Full Bench, was dealing with the issue relating to
\ntransfer of teachers of private schools under the Tamil Nadu Recognised Private
\nSchools (Regulations) Act, 1974, holding that the power of transfer cannot be
\nincluded in appointment unless expressly or impliedly provided for,  on the
\nfacts and circumstances of the said case. Apart from that, the Full Bench has
\nheld that the right of transfer cannot be inferred.  However, the Hon’ble Full
\nBench has observed that in a peculiar circumstance where there is no alteration
\nof condition of service, change of master etc., such transfer may be treated as
\nan incident of service. The Full Bench has decided the issue on the facts and
\ncircumstances of the said case. In this regard, it is relevant to extract para
\n26 of the said judgment as follows:\n<\/p>\n
\t“26.From the resume of the observations made above it can be safely
\nconcluded that transfer is not necessarily included n the conditions of service
\nas a term of the conditions of service.  Transfer is a specie of the appointment
\nand being one of the modes of appointment, cannot be included in the appointment
\nitself unless it is expressly or impliedly provided for.  Thus the assumption
\nthat the power to transfer is included in the power of appointment is
\nunsustainable.  Power to transfer involving the cessation of appointment would
\ndepend upon the nature of the transaction involved.  May be in peculiar facts
\nwhere it does not bring about any alterations of the conditions of service,
\nchange of master, change of place, alternation in the terms of appointment,
\nusage prevalent in the statutory provisions, rules and regulations and
\nstructure, duration of employment and various other circumstances may provide
\nfor a lead that it is an incident of service.  The question whether it is an
\nincident of service has to be determined in the facts and circumstances of each
\nand every case and is a question of fact”.\n<\/p>\n
Even though, the question whether transfer is an incident of service was left to
\nbe decided on the facts and circumstances, it remains a fact that the Full Bench
\nhas made a categoric observation that in cases where, the condition of service
\nis not changed, there is no alteration in terms of appointment, transfer can be
\ntreated as an incident of service.\n<\/p>\n
\t58. It is in this regard, relevant to point out another Division Bench
\njudgment of this Court in the Manager  R.C.Schools, Salem Social Services
\nSociety, Alagapuram, Salem and another reported in 2003 (4) CTC 65.  In that
\ncase, the Division Bench has considered exactly, the similar issue which is
\nbefore this Court, while deciding about the Rule 15(4)(ii)(c). That was also a
\ncase where various schools under the control of the same educational agency and
\nthe educational agency claimed to be a corporate management transferring the
\nteachers from one school to another school under the same management.  The
\nHon’ble Division Bench while referring to the above said judgment of the Full
\nBench reported in The Correspondent, Malankara Syrian Catholic School,
\nMarthandam, Kanyakumari District Vs. J.Rabinson Jacob and others reported in
\n1998 (3)M.L.J, 595 has specifically stated as follows:\n<\/p>\n
\t“4.The ratio of the decision of the Full Bench, therefore, is that
\ntransfer is not prohibited by the provisions of the Act; that if in a given case
\nit is shown that transfer is a condition of service having regard to the terms
\nof the contract between the parties,then transfer is permissible subject to the
\ntransferee not being deprived of the benefits of his service prior to such
\ntransfer”.\n<\/p>\n
\t59. The Division Bench while deciding about the above said Rule
\n15(4)(ii)(c) and also narrating the statutory authority of such Rule making, by
\nreferring to Section 19 and 20 of the Tamil Nadu Private Colleges (Regulations)
\nAct in categorical terms has held that the Government by virtue of the power
\nconferred under Section 19 of the Act has framed the Rules and in that Rule
\nviz., Rule Number 15(4)(ii)(c) which speaks about the corporate body running
\nmore than one school, held that the possibility of several schools being run by
\none single legal entity enshrined under the said Rule and by considering the
\npolicy of the Act it does not prohibit more than one school being run by the
\nsame corporate body and also referring to the terms of contract entered under
\nForm.No.VII(A), which runs as follows:\n<\/p>\n
\t“6. Section 20 of the Act which is in Chapter V titled “Terms and
\nconditions of service of teachers and other persons employed in Private Schools”
\ndeals with appointment of teachers and other employees in private schools.
\nSection 19 empowers the Government to make rules regulating the number,
\nqualifications and conditions of service of the teachers and other persons
\nemployed in any private school.   Rules having been made by the Government in
\nthis regard, qualifications and conditions of service of teachers and others are
\ndealt with in Rule 15.  It requires the school committee of every private school
\nto enter into an agreement in Form VII(A) or VII(B).  Rule 15(4) deals with
\npromotions. Rule 15(4)(ii)(c) refers to Corporate Body running more than one
\nschool that, in respect of Corporate Body running more than one school, the
\nschools under that body shall be treated as one unit for the purpose of the
\nRule.  Thus, the rule made under the statute clearly recognises the possibility
\nof several schools being run by one single legal entity and promotions being
\nmade from a common pool of teachers serving in all such schools whenever
\nvacancies arise in any one of those schools run by that legal entity.  The
\npolicy of the Act therefore is not to prohibit more than one school being run by
\nthe same corporate body.  The fact that statutory agreement does not
\nspecifically refer to transfer would not come in the way of the concerned
\nparties agreeing to such a condition or agreeing to continue to be bound by such
\na condition in a contract entered prior to coming into force of this Act.  As to
\nwhether such a condition providing transfer in fact formed part of the contract
\nis a question of fact”.(emphasis is mine)<\/p>\n
\t60. Further, the Division Bench by going into the various aspects of the
\nservice conditions of the respondent therein and having factually ascertained
\nthat the service conditions has not been altered to his disadvantage while
\nholding that the transfer is valid has also observed  in the following terms:\n<\/p>\n
\t“9.This transfer does not prejudicially affect him as his seniority is
\npreserved so also his emoluments.  The appellant has placed before the Court the
\nseniority list of its teaching staff in all the schools.  It is a common
\nseniority list which sets out the name of the teachers and their present place
\nof working.  The list is arranged chronologically with a person who joined
\nearlier being placed above one who joined later.” (emphasis is mine)<\/p>\n
\t61. That apart, it is relevant to point out that the Apex Court  time and
\nagain has held that the transfer is an incident of service and unless, mala fide
\nis proved or statutory violations are found out such transfer cannot be
\ninterfered with as it was decided in the National Hydro Electric Power
\nCorporation Vs.Shri Bhagwan and another reported in 2001(8) SCC 574.\n<\/p>\n
\t62. In the present case, it is not even the case of the petitioner in
\nW.P.No.4816 of 2005 that the transfer is effected by punitive method, as it is
\non fact clear that by effecting the impugned transfer, the petitioner’s service
\nconditions are not affected, his seniority is not disturbed and his monetary
\nbenefits are deprived and therefore, it can never be said as punitive in
\ncharacter.\n<\/p>\n
\t63. A reference to the judgment of the Apex Court rendered in State of
\nUttar Pradesh Vs. Siya Ram and another reported in 2004 (7) SCC 405 is relevant
\nwhich in unequivocal terms has laid down the law as follows:\n<\/p>\n
\t“Unless an order of transfer is shown to be an outcome of mala fide
\nexercise or stated to be in violation of statutory provisions prohibiting any
\nsuch transfer, the courts or the tribunals normally cannot interfere with such
\norders as a matter of routine, as though they were appellate authorities
\nsubstituting their own decision for that of the employer\/management, as against
\nsuch orders passed in the interest of administrative exigencies of the service
\nconcerned.  This position was highlighted by this Court in National
\nHydroelectric Power Corpn. Ltd., Vs.Shri Bhagwan”.\n<\/p>\n
\t64. One other judgment of the Hon’ble Supreme Court which is relevant to
\nbe quoted in this regard to show that the transfer is an incident of service
\nunless expressly barred as it was held in State of Rajasthan Vs. Anand Prakash
\nSolanki reported in 2003 (7) SCC 403. While dealing with Section 10 of the
\nConsumer Protection Act 1986, the Hon’ble Apex Court by making reference to a
\ncase rendered in Indra Sawhney Vs. Union of India, 1992 Supp (3) 217 has held
\nat page 407 as follows:\n<\/p>\n
\t“The concept of appointment by transfer is not unknown to service
\njurisprudence.  A power to appoint includes a power to revoke an appointment,
\nand so also a power to make an appointment includes a power to make an
\nappointment by transfer, subject to satisfying the requirements of Section 10 of
\nthe Act.  The expression “appointment” takes in appointment by direct
\nrecruitment, appointment by promotion and appointment by transfer”.\n<\/p>\n
\t65. In view of the facts stated above, that the educational authorities
\nhave recognised the second respondent in W.P.No.4816 of 2005 as a corporate
\nmanagement and further that by effecting the transfer, the petitioner’s service
\nconditions are not altered to his disadvantage and on the legal parlour, the
\npossibility of having more than one schools under the control of the same
\ncorporate management is not prohibited under the provisions of the Tamil Nadu
\nRecognised Private Schools (Regulations)Act and on the other hand, the Rules
\nframed as per Section 19 of the said Act especially relating to Rule
\n15(4)(ii)(c) specifically enables and mandates the authorities to treat the
\ncorporate body running more than one school should be treated as one unit for
\nthe purpose of the Rule relating to qualifications, conditions of service of
\nteachers and other persons employed in the aided private schools, I am of the
\nconsidered view that the impugned order of transfer is not against the
\nprovisions of the Tamil Nadu Recognised Private Schools(Regulations) Act and
\nRules made thereunder and is not illegal. Consequently, the writ petition in
\nW.P.No.4816 of 2005 is dismissed.\n<\/p>\n
\t66. In W.P.No.11064 of 2005, the second respondent is directed to pass
\norders on the proposal submitted by the petitioner therein dated 21.11.2005 in
\nrespect of the grant regarding (Y.Balachandra Babu) working as B.T. Assistant in
\nSt.Lawrence Higher Secondary School, Madathattuvilai and pass orders based on
\nthe above decision of this Court within a period of four weeks from the date of
\nreceipt of a copy of this order.  This writ petition is ordered accordingly.  No
\ncosts.  Consequently, connected W.P.M.Ps. are closed.\n<\/p>\n
sms<\/p>\n
To<\/p>\n
1.The District Educational Officer,
\n  Kuzhithurai Educational District at
\n  Marthandam,
\n  Kanyakumari District.\n<\/p>\n
2.The Corporate Manager,
\n  Roman Catholic Schools,
\n  “Thedal” 10\/8-46 C, Bridge Ward,
\n  Near Fire Station,
\n  Kuzhithurai,
\n  Kanyakumari District – 629 163<\/p>\n
3.The Correspondent,
\n  St.Antony’s High School,
\n  Kappukad – 629 162,
\n  Kanyakumari District.\n<\/p>\n
4.The District Educational Officer,
\n  Thuckalay Education District,
\n  Thuckalay – 625 175,
\n  Kanyakumari District.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Y.Balachandra Babu vs The District Educational Officer on 28 July, 2006 BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 28\/07\/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.(MD)No.4816 of 2005, W.P.(MD)No. 11064 of 2005 and W.P.M.P.(MD)Nos.1603, 10902, 5181 of 2005 Y.Balachandra Babu … Petitioner in WP.(MD)No.4816 of 2005 The Corporate Manager […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-68668","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nY.Balachandra Babu vs The District Educational Officer on 28 July, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/y-balachandra-babu-vs-the-district-educational-officer-on-28-july-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Y.Balachandra Babu vs The District Educational Officer on 28 July, 2006 - 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