ORDER
1. In this writ petition, the petitioner has called in question the legality of the order, dated 12-12-1995, by which he has been transferred from Dharwad to Madras (Annexure-C).
2. The questions to be considered herein are.-
(i) Whether the petitioner is an employee of the Dakshin Bharat Hindi Prachar Sabha;
(ii) Whether he had been appointed to a cadre of librarians and posted at Dharwad or his appointment was to the post at Dharwad only;
(iii) Whether, under the terms of employment of the petitioner, his post was transferable either expressly or even impliedly.
3. Dakshin Bharat Hindi Prachar Sabha (in short 'the Sabha') is a society registered under the provisions of the Societies Registration Act, 1860 (for brevity 'Societies Act'). The constitution of Sabha specifically provides that its head office shall be at Madras. This society was established in the year 1918 under the inspiring guidance and Presidentship of Mahathma Gandhi, for spreading the hindi language among the non-Hindi speaking people of South India. Keeping in view the tremendous task undertaken and executed by it since its establishment, the Parliament by enacting 'The Dakshin Bharath Hindi Prachar Sabha Act, 1964', (in short 'the Sabha Act') declared it to be an Institution of national importance and, notwithstanding anything contained in the University Grants Commission Act, 1956, gave it a special status for holding examinations and granting degrees, diplomas and certificates for proficiency in Hindi or in the teaching of Hindi as may be determined by theSabha from time to time. The Act made some ancillary provisions as well.
4. Section 2(b) of the Act defines 'rules and regulations' to include any rule or regulation, by whatever name called, which the Sabha is competent to make in exercise of the powers conferred on it under the Societies Registration Act, 1960, but, shall not include any bye-laws or standing orders made under the rules and regulations for the conduct of its work.
5. Section 6 of the Act provides for prior approval of the Central Government as a condition precedent for certain actions by the Sabha. This section reads thus.-
'Notwithstanding anything contained in the Societies Registration Act, 1860, or in the memorandum of rules and regulations, the Sabha shall not except with the previous approval of the Central Government.-
(a) alter, extend or abridge any of the purposes for which it has been established or for which it is being used immediately before the commencement of this Act, or amalgamate itself, either wholly or partially, with any other institution or society; or
(b) alter or amend in any manner the memorandum or rules and regulations; or
(c) be dissolved'.
6. Section 2 of the Societies Act provides for drawing of Memorandum of Association and framing of the rules of the society for the purpose of management of its affairs. This section reads as under.-
'Memorandum of Association.--The memorandum of association shall contain the following things (that is to say) -- the name of the society;
the object of the society;
the names, address, and occupations of the governors, council, directors, committee or other governing body to whom, by the rules of the society, the management of its affairs is entrusted.
A copy of the rules and regulations of the society, certified to be a correct copy by not less than three of themembers of the governing body, shall be filed with the memorandum of association'.
7. From a conjoint reading of Section 2 of the Societies Act and the definition of 'rules and regulations' under Section 2(d) and Section 6 of the Sabha Act, it becomes amply clear that the Parliament while making it mandatory the obtaining of the prior approval of the Central Government for altering or amending the rules or regulations pertaining to management of the affairs of the Sabha, had kept in view and maintained a clear distinction between the rules or regulations which the Sabha was competent to make under Section 2 of the Societies Act and the subordinate rules and regulations made within the frame work of the management rules for the conduct of its work. Under Section 6 of the Sabha Act the Parliament never contemplated any restraint on the powers of the Sabha to frame rules, regulations or bye-laws which were intended for discharging of its work and functions. This becomes further evident from the statement of objects and reasons of the Sabha Act, wherein it has been specifically declared that 'it has been left to the Sabha to regulate its own affairs in accordance with the provisions of the memorandum, rules and regulations'.
8. Para 3 of the Constitution of the Sabha declares its object, which is to spread knowledge of Hindi as specified in Article 351 of the Indian Constitution in the areas in South India, where Tamil, Telugu, Malayalam and Kannada are spoken. Para 4 elaborates the powers and functions of the Sabha which are essential and necessary for the fulfilment of the said objectives.
9. In para 5 of the Constitution of the Sabha it has been said that the functions of the Sabha shall be discharged by five bodies, namely, (i) Nidhipalak Mandal; (ii) Vyavasthapak Samiti; (iii) Karyakarini Samiti; (iv) Siksha Parishad and (v)Uchcha Siksha and Shodh Sansthan.
10. The functions of the Sabha, which are to be discharged by the Uchcha Siksha and Shodh Sansthan (hereinafter called the 'University Wing') have been enumerated in a set of rules known as 'Rules of the Sansthan'. From the rules it transpires that the academic functions for providing facilities for study of Hindi at University level in South India and holding of examinations has been entrusted to this Sansthan. It is really the University Wing of the Sabha which has a complete infrastructure of aninstitution parallel to Universities as contemplated under the University Grants Commissions Act, 1956. The jurisdiction of the Sansthan extends to all the four States of South India namely, Tamil Nadu, Kerala, Karnataka and Andhra Pradesh. Rule 6 of these Rules provides for power of the Sansthan through its Shashi Parishad to appoint Professors, Readers, Lecturers and other members of the staff in the manner prescribed and to prescribe the necessary qualifications and other conditions for such appointment.
11. Pursuant to the said powers, the Sansthan has framed service rules for the teachers as approved by its Shashi Parishad. Under these rules, 'teacher' include the professors, readers, lecturers, research assistants, librarian, system analysts, computer operations, programmers, etc. These rules have been amended and/or substituted expressly or impliedly from time to time. At the time of appointment of the petitioner, the 1990 Rules were in operation which have been substituted by the present service rules with effect from 14-5-1995.
12. In the 1990 Rules there was no express provision for transfer of a teacher but now in the present rules, Rule 14 makes it explicit by providing that.-
'Transfer.--The Teaching staff and the non-teaching Staff (Employees) of the Uchcha Shiksha aur Shodh Sansthan, D.B.H.P. Sabha are liable to be transferred to other places also according to necessity with or without additional allowances, as the case may be, as the Registrar may decide from time to time'.
Facts of the present case
13. On 14-6-1989, the Registrar of the University Wing of the Sabha called for applications from eligible candidates for the post of librarian. The notification has been placed at Annexure-B (at page 15). The relevant extract of the notification is to the following effect.-
'Applications are invited on the prescribed forms for the following posts on or before 10-7-1989, on the following address: 'The Registrar, Post-Graduate and Research Sansthan, Dakshina Bharat Hindi Prachar Sabha, Thyagaraja Nagar, Madras 600 17'.
1. Lecturer : Two posts
2. Librarian: Three posts (one for Madras, one for Ernakulam and one for Dharwad.
Scale of pay: 700-1600 with usual allowances.
Qualification required:
Master of Library Science with sound knowledge in Hindi.
Applications can be had from the Registrar by sending postal order for Rs. 5/-.
sd/
-Registrar on 14-6-1989'.
14. Pursuant to the said notification, the petitioner had filed his application addressed to the Registrar of the University Wing with his office address at Madras. Accordingly, the petitioner was selected and posted as librarian at Dharwad at which he assumed his duties.
15. Subsequently, because of administrative exigencies, by an order, dated 12-12-1995, the Registrar, as an Appointing Authority of the petitioner, transferred him as librarian to the P.G. Centre of the University Wing at Madras, requiring him to report his duties on 27-12-1995 (Annexure-C). Immediately after the receipt of the transfer order, the petitioner made an application to the first respondent for cancellation of the same on various medical grounds. This application has been filed as Annexure-R2 to the statement of objections. On consideration of the facts set out by the petitioner, by taking a humanitarian approach, the transfer order of the petitioner was stayed for one term i.e., upto 30-6-1996 (Annexure-C1). The petitioner after so obtaining a favorable order from his Appointing Authority, has now availed the said opportunity to challenge the very competence of his Appointing Authority to transfer him from Dharwad to Madras precisely taking the plea that he was substantively appointed to a post at Dharwad and his appointment was not in a cadre of librarians created by the University Wing of the Sabha making his post transferable.
16. To appreciate the plea of the petitioner, it has to be first ascertained as to whether there is any cadre of librarians in the University Wing of the Sabha and whether the petitioner was appointed to the said cadre as has been claimed by the respondents. In this connection, it is worthwhile to understand the concept of the expression 'cadre' as understood in the service jurisprudence. 'Cadre' is a group of posts created by anemployer prescribing a separate time scale of pay for such post, separate avenues of promotion or the like which forms a separate unit.
17. In the present case, from the notification Annexure-B inviting applications for appointment to the posts of librarian, it is clear that the applications were invited for filling up of 3 posts of librarians at 3 places viz., Madras, Ernakulam, and Dharwad on a pay scale of 700-1600 with usual allowances and having qualification of 'Master of Library Science' with sound knowledge in Hindi. Therefore, the applications which were required to be made were for appointment in the cadre of librarian for being appointed at any of the three available vacant posts.
18. Now the next and the last question is to be answered as to whether a person like the petitioner, who is appointed at one of the places, in the cadre, like Dharwad as in the present case, has acquired a vested right to remain there throughout the tenure of service or the Appointing Authority had the competence to transfer him to other places.
19. The Counsel for the petitioner has vehemently argued that since in the service rules framed by the University Wing for the teachers, there was no specific provision authorising the Appointing Authority to effect transfers of the employees of the Sabha, therefore, the impugned order transferring the petitioner from Dharwad to Madras should be held as ultra vires his powers. On the other hand, Sri Jayakumar S. Patil, learned Counsel appearing for the Sabha, has submitted that the power to transfer its employee from one place to another within its existing establishments is inherently embodied in the competence of the Appointing Authority and as such it need not be expressly spelt out. He has also submitted that even if there is any such requirement now the new rules which have come into effect from 14-5-1995 i.e., before passing of the impugned order, makes the said power explicit under Rule 14 thereof providing therein that the teaching staff and the non-teaching staff (employees) of the 'Uchcha Siksha aur Shodh Sansthan D.B.H.P.S.' are liable to be transferred to other places also according to necessity with or without additional allowances, as the case may be, as the Registrar may decide the same from time to time.
20. For adjudicating the competence aspect of the impugned transfer of the petitioner, I would do better to refer to the first judicial pronouncement in this regard. A similar question as one has arisen in the present case, had come up for consideration before the Privy Council in the case of Alexander v Ottoman Bank. In this case, the appellant was appointed at the head office of the Bank at Constantinople against one of the 5 vacant posts. The contract of employment did not specifically provide the sphere of his employment. Still he was transferred to a foreign branch. This action of the employer came to be challenged before Court. The Privy Council on consideration of the facts and the law relating to master and servant opined that (page 119).-
'...From the point of view of proper organisation of their staff, it is difficult to assume that the bank would willingly agree that their employees should not be bound to serve outside the place where the contract was made except with their consent, and, in their Lordships' opinion such a condition of the contract would require to be clearly established. The nature of the service in this case is different to that of the yearly engagement as a spinner of the defender in the Scottish case of Anderson v Moon, where it was held that the contract was applicable to one mill only.
Their Lordships are of opinion that the reference to five vacant posts in the advertisement and the choice of posts given to the appellant by Mr. Maltass related merely to the initial step in an unlimited employment in the service of the bank, which followed on engagement on the permanent staff of the bank and that the appellant has failed to establish that the appointment to an initial post at Constantinople involved that no subsequent appointment to another post could be made except to another post in Constantinople...'.
21. From the above enunciation of law by the Privy Council it is clear that transfer of an employee from one post to another within the establishment of his employer is a normal incidence of service, unless a condition to the contrary is clearly shown to be existing in the contract of service. This very view has beentaken by the Supreme Court in the case of Gujarat Electricity Board and Another v Atmaram Sungomal Poshani, wherein it has been held that.-
'Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration'.
The same view has also been taken by the Supreme Court in the case of Union of India v S.L. Abbas and Others and again in the case of N.K. Singh v Union of India and Others.
22. To counter the aforesaid propositions, the learned Counsel for the petitioner has heavily relied on earlier judgment of the Supreme Court in the case of M/s. Kundan Sugar Mills v Ziyauddin. In this case it was found by the Supreme Court that the employee had been transferred to an independent establishment of the employer which was established subsequent to the employment of the respondent in that case. After noticing the decision of the Privy Council in Alexander's case, supra, and some cases of the High Courts, the Supreme Court by drawing distinction between those cases and the case before their Lordships, it was pronounced that.-
'We have referred to the decisions only to distinguish them from the present case, and not to express our opinion as to the correctness of the decisions therein. It would be enough to point out that in all the said decisions the workers had been employed in a business or a concern and the question that arose was whether in the circumstances of each case the transfer from one branch to another was valid or amounted to victimization. None of these decisions deals with a case similar to that presented in this appeal, namely, whether a person employed in a factory can betransferred to some other independent concern started by the same employer at a stage subsequent to the date of his employment. None of these cases holds, as it is suggested by the learned Counsel for the appellant, that every employer has the inherent right to transfer his employee to another place where he chooses to start a business subsequent to the date of the employment. We, therefore, hold that it was not a condition of service of employment of the respondents either express or implied that the employer has the right to transfer them to a new concern started by him subsequent to the date of their employment'.
23. Therefore, in M/s. Kundan Sugar Mills case, supra, the law declared by the Supreme Court is only to the effect that an employer has no inherent right to transfer his employee to another place where he chooses to start a new business subsequent to the date of the employment. In the present case, admittedly, at the time of appointment of the petitioner the University Wing was having its establishment both at Madras as well as Dharwad and as I have held above, the petitioner was given an appointment in the cadre of librarian created by the University Wing and was posted to one of the posts in the cadre, at Dharwad. In this situation, judgment of the Supreme Court in the case of M/s. Kundan Sugar Mills, supra, is of no help to the petitioner.
24. On behalf of the petitioner, reliance has also been placed on an unreported judgment of the Division Bench of this Court in the case of P. Ramegowda v Karnataka Silk Industries Corporation and Another. In this case, the appellant was employed on 13-4-1975 in the establishment of Silk Filature Unit which was situated at T. Narasipur. The terms of employment were governed by 'Works Service Rules' which did not provide for any transfer. Subsequently, on 10-4-1980, the unit of the appellant along with the other four units were transferred to the respondent-corporation. The Government order which directed for merger of five units into the corporation specifically provided that the service conditions of employees governed by 'Works Service Rules' shall continue to remain in force till the employee opts for service conditions of the corporation. Nothing was shown to this Court that the appellant,had exercised the option for service conditions of the corporation providing for transfer. It was under these circumstances that this Court held that 'unless and until the contract between the employee and employer provides for condition of transfer or the rules and regulations framed by the employer specifically so provide, it is not permissible to claim that transfer being incidence of service, the employee can be transferred at the sweet will of the employer.
25. I am of the view that the proposition of law as held out by the Division Bench of this Court in the case of P. Ramegowda, supra, has to be read in the context of the facts of the case before the Court and not as an absolute proposition of law governing transferability aspect in service jurisprudence. It has to be so held because any contrary view will fall in conflict with the law laid down by the Privy Council in Alexander's case, supra, which has been referred with approval by the Supreme Court in M/s. Kundan Sugar Mills case, supra, as also the law independently laid down by the Supreme Court in Gujarat Electricity Board's case, supra and other subsequent judgments as referred to above in para 21.
26. The petitioner has also tried to make out a case of hardship likely to be caused to him in case he is forced to join at Madras. As held by the Supreme Court in the case of State of Madhya Pradesh v S.S. Kourav, hardship itself cannot be a ground for this Court to interfere with the order of transfer under writ jurisdiction. In para 4 of the judgment it has been held by the Apex Court that.-
'The Courts or Tribunals are not appellate forums to decide on transfers 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. In this case have seen that on administrative grounds the transfer orders came to be issued'.
Again in para 6, it has been held that.-
'This Court cannot go into that question of relative hardship. It would be for the administration to consider the facts or a given case and mitigate the real hardship in the interest of good and efficient administration. If there is any such hardship, it would be open to the respondent to make a representation to the Government and it is for the Government to consider and take appropriate decision in that behalf'.
27. For the said reasons, I do not find permissible ground on the part of this Court 'to interfere with the impugned orders placed at Annexure-C as supplemented by Annexure-C1. The writ petition is accordingly dismissed. But keeping in view the facts and circumstances of the case, the parties will bear their own costs.