WA Nos. 946 of 2022 & 951 of 2022: Sree Narayana Trusts, Kollam & The Manager, Sree Narayana Trusts Colleges, Kollam v. University of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS ``` ## **`&`** ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944 ``` ``` WA NO. 946 OF 2022 ``` ``` AGAINST THE JUDGMENT DATED 11.07.2022 IN WP(C) NO.21967/2022 ``` ## **`OF HIGH COURT OF KERALA`** ## **`APPELLANTS/PETITIONERS:`** - `1 SREE NARAYANA TRUSTS, KOLLAM, POST BOX NO.63, KOLLAM-691001, REPRESENTED BY ITS SECRETARY, VELLAPPALLY NATESAN, RESIDING AT VELLAPPALLIL HOUSE, KANICHUKULANGARA P.O., KANICHUKULANGARA, CHERTHALA, ALAPPUZHA DISTRICT.` - `2 THE MANAGER, SREE NARAYANA TRUSTS COLLEGES, KOLLAM, POST BOX NO.63, KOLLAM-691001.` ``` BY ADVS. A.N.RAJAN BABU P.GOPALAKRISHNAN (MVA) ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 UNIVERSITY OF KERALA, REP. BY ITS REGISTRAR, SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM-695034.` - `2 THE VICE CHANCELLOR, UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS, THIRUVANANTHAPURAM-695034.` ``` 3DR. MANU RAMAKANTH, AGED 49 YEARS, S/O.A.RAMAKANTH, ASSOCIATE PROFESSOR, S.N.COLLEGE, CHERTHALA-688549, R/AT. RTA 54, ATHIRA, THENGAPPARA LANE, STATION ROAD, PETTAH P.O., TRIVANDRUM-695024. ``` W.A. Nos.946/2022 & 951/2022 ``` 4REMYA C.R., AGED 41 YEARS, D/O.C.S.RAVEENDRAN, ASSISTANT PROFESSOR, DEPARTMENT OF ENGLISH, S.N.COLLEGE FOR WOMEN, KOLLAM-691001, R/AT. RESMY, TC 3/1310, T.K.DIVAKARAN ROAD, PATTOM P.O., TRIVANDRUM-695004. ``` ``` 5SANGEETHA HARIHARAN, AGED 44 YEARS, D/O.G.HARIHARAN, ASSISTANT PROFESSOR, DEPARTMENT OF ENGLISH, TKMM COLLEGE, NANGIARKULANGARA, HARIPAD, ALAPPUZHA-690513, R/AT. VYSAKH, KRA 70, AMBALATHUMUKKU, PETTAH P.O., TRIVANDRUM-695024. ``` ``` BY ADVS. R1 & R2 BY SHRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA R3 TO R5 BY C.UNNIKRISHNAN (KOLLAM) D.JAYAKRISHNAN ``` ## **`OTHER PRESENT:`** ``` SRI SAIGI JACOB PALATTY-SR. GP ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.08.2022, ALONG WITH WA.951/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.A. Nos.946/2022 & 951/2022 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944 ``` ``` WA NO. 951 OF 2022 ``` ``` AGAINST THE JUDGMENT DATED 11.07.2022 IN WP(C) NO.20924/2022 OF HIGH COURT OF KERALA ``` ## **`APPELLANTS / RESPONDENTS 4 & 5:`** - `1 SREE NARAYANA TRUSTS KOLLAM, KOLLAM POST BOX NO.63, KOLLAM-691001, REPRESENTED BY ITS SECRETARY, VELLAPPALLY NATESAN, RESIDING AT VELLAPPALLIL HOUSE, KANICHUKULANGARA P.O., KANICHUKULANGARA, CHERTHALA, ALAPPUZHA DISTRICT.` ``` 2THE MANAGER, SREE NARAYANA TRUSTS COLLEGES, KOLLAM POST BOX NO.63, KOLLAM-691001. ``` ``` BY ADVS. A.N.RAJAN BABU P.GOPALAKRISHNAN (MVA) A.R.EASWAR LAL ``` ## **`RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 3 & 6 TO 9:`** - `1 DR.MANU RAMAKANTH AGED 48 YEARS, S/O.A.RAMAKANTH, ASSOCIATE PROFESSOR, S.N.COLLEGE, CHERTHALA-688549, R/AT. RTA 54, ATHIRA, THENGAPPARA LANE, STATION ROAD, PETTAH P.O., TRIVANDRUM-695024.` ``` 2REMYA. C.R., AGED 41 YEARS, D/O.C.S.RAVEENDRAN, ASSISTANT PROFESSOR, DEPARTMENT OF ENGLISH, S.N.COLLEGE FOR WOMEN, KOLLAM-691001, R/AT. RESMY, TC 3/1310, T.K.DIVAKARAN ROAD, PATTOM P.O., TRIVANDRUM-695004. ``` W.A. Nos.946/2022 & 951/2022 - `3 SANGEETHA HARIHARAN, AGED 44 YEARS, D/O.G.HARIHARAN, ASSISTANT PROFESSOR, DEPARTMENT OF ENGLISH, TKMM COLLEGE, NARGIARKULANGARA, HARIPAD, ALAPPUZHA-690513, R/AT. VYSAKH, KRA 70, AMBALATHUMUKKU, PETTAH P.O., TRIVANDRUM-695024.` - `4 THE DIRECTOR OF COLLEGIATE EDUCATION, 6TH FLOOR, VIKAS BHAVAN, TRIVANDRUM-695033.` - `5 THE VICE CHANCELLOR, UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS, PALAYAM, TRIVANDRUM-695034.` - `6 UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS, PALAYAM, TRIVANDRUM-695034, REPRESENTED BY ITS REGISTRAR.` - `7 THE PRINCIPAL, SREE NARAYANA COLLEGE, CHEMPAZHANTHY, TRIVANDRUM-695587.` - `8 THE PRINCIPAL, SREE NARAYANA COLLEGE, CHERTHALA-685549.` - `9 THE PRINCIPAL, TKMM COLLEGE, NANGIARKULANGARA, HARIPAD, ALAPPUZHA-690513.` - `10 THE PRINCIPAL, SREE NARAYANA COLLEGE FOR WOMEN, KOLLAM-691001.` ``` BY ADVS. R1 TO R3 BY C.UNIIKRISHNAN(B/O) R5 & R6 BY SHRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA R7 TO R10 BY M.S.RADHAKRISHNAN NAIR ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.08.2022, ALONG WITH WA.946/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **(CR)** ## **ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.** **-----------------------------------------------------------------------------------** ## W.A. No.946 of 2022 _[arising out of the impugned judgment dated 11.07.2022 in W.P.(C) No.21967/2022]_ & ## W.A. No.951 of 2022 _[arising out of the impugned judgment dated 11.07.2022 in W.P.(C) No.20924/2022]_ _**----------------------------------------------------------------------------**_ Dated this the 29[th] day of August, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** As both these appeals arise out of the common impugned judgment, rendered in two connected writ petitions (civil), these cases are disposed of on the basis of this common judgment. 2. Heard Sri.A.N. Rajan Babu, learned counsel appearing for the appellants in both these cases, Sri.C. Unnikrishnan, learned counsel appearing for contesting respondent Nos.3 to 5 in W.A. No.946/2022 (who are also arrayed as contesting respondent Nos.1 to 3 in W.A. No.951/2022), Sri.Thomas Abraham, learned Standing Counsel for the Kerala University, appearing for the respondent Kerala University authorities, Sri.Saigi Jacob Palatty, learned Senior Government Pleader, appearing for the 4[th] respondent-Director of Collegiate Education, in W.A. No.951/2022 and Sri.M.S. Radhakrishnan Nair, learned Advocate, appearing for respondent Nos.7 to 10 in W.A. No.951/2022. W.A. Nos.946/2022 & 951/2022 2 3. For the sake of convenience the Exhibits as marked in W.P.(C) No.21967/2022 (filed by the managements) will be referred to in this judgment, unless otherwise indicated. 4. The subject matter of consideration in these writ proceedings is essentially Ext.P1 transfer order dated 03.11.2021, issued by the college management as well as the impugned Ext.P7 order dated 09.06.2022, issued by the respondent Vice-Chancellor, interfering with the said transfer order in favour of the teachers concerned. 5. After the issuance of Ext.P7 order, issued by the respondent Vice-Chancellor, the college management has filed W.P. (C) No.21967/2022, seeking to challenge Ext.P7 order of the ViceChancellor and for its quashment. Whereas, the 3 transferee teachers have filed W.P.(C) No.20924/2022 before this Court, seeking for directions to the college management to implement the abovesaid Ext.P7 order, in their favour. 6. The learned Single Judge has heard both the W.P.(C)s together and has disposed of the same, as per the impugned common judgment on 11.07.2022. Therein, the learned Single Judge has held that the interference made by the respondent Vice-Chancellor, W.A. Nos.946/2022 & 951/2022 3 through the issuance of the impugned Ext.P7 order, is not liable for interference in judicial review proceedings. Consequently, it has been ordered that Ext.P7 order should be implemented in favour of the teachers but without prejudice to the continuance of the disciplinary action against them. 7. Being aggrieved by the said common judgment, the management has filed the abovesaid writ appeals to challenge the respective judgments in each of the two writ petitions. 8. In answer to the contentions raised by Sri.C.Unnikrishnan, learned counsel appearing for the transferee teachers, the college management had made specific factual submissions regarding the genesis of the disciplinary action. It was stated that, initially, a Facebook post was made on 03.05.2020, which generated a lot of controversies. Yet another online programme was conducted on 23.07.2021, at the behest of the abovesaid teachers concerned, which generated more controversy in the student and teaching community of the college concerned. That, this was the subject matter of detailed and serious consideration in the meeting, held on 02.08.2021 by the college council, consisting of the Principal and senior members of the teaching staff and some W.A. Nos.946/2022 & 951/2022 4 student representatives. Further that, when the conduct of the writ petitioners persisted and when they had again involved in the very same conduct, it was again considered by the college council on 16.08.2021. Further that, the Principal of the college concerned had, thereafter, sent a report on 20.09.2021 to the college management, along with the complaints against the above teachers concerned. It is thereafter that the college management has issued Anxs.A1, A2 & A3 memo of charges dated 18.10.2021 and had later issued the impugned Ext.P1 transfer order on 03.11.2021. We need not get into these factual submissions, as the point of consideration before us lies in an extremely narrow compass, as to the legality and correctness of Ext.P1 transfer order as well as Ext.P7 order issued by the respondent Vice-Chancellor. 9. For the said limited purpose, it is to be noted that, Anxs.A1, A2 & A3, memo of charges dated 18.10.2021, was issued by the Manager of the college concerned to each of the 3 transferee teachers for taking disciplinary action on certain allegations. It appears that statement of allegations was also furnished along with Anxs.A1, A2 & A3 memos of charges. 10. Thereafter, the Manager of the college has issued the W.A. Nos.946/2022 & 951/2022 5 impugned Ext.P1 transfer order dated 03.11.2021, wherein the abovesaid disciplinary action, taken in terms of the memo of charges, has been referred to therein and the 3 teachers concerned have been ordered to be transferred from the college concerned (S.N. College, Chempazhanthy, Thiruvananthapuram District), to other colleges under the same management but in nearby Districts. It appears that they have been so transferred to S.N. College, Cherthala (Alappuzha District), S.N. College for Women, Kollam (Kollam District), and TKMM College, Nangiarkulangara (Alappuzha District). 11. It is also common ground that all the abovesaid 3 teachers concerned have been relieved from the post held by them in the college concerned on 08.11.2021 and they have subsequently joined duty in the transferred colleges. So also, it is common ground that the substitutes of the transferee teachers, mentioned in the Ext.P1 transfer order, have also joined duty in S.N. College, Chempazhanthy on 09.11.2021. 12. Being aggrieved by the impugned Ext.P1 transfer order, the abovesaid writ petitioners had challenged the same by filing writ proceedings before this Court, which resulted in judgments of this Court in W.P.(C) Nos.24806/2021 & connected cases. Copies of W.A. Nos.946/2022 & 951/2022 6 those judgments have been produced as Exts.P8, P9 & P10 in W.P. (C) No.20924/2022, filed by the teachers, wherein this Court has not interfered with the transfer order, but noted the submissions of the teachers that they have filed an appeal against the transfer order before the respondent Vice-Chancellor. Taking note of the said submission, this Court ordered, as per Exts.P8, P9 & P10 judgments, that the respondent-Vice-Chancellor may consider the said appeals, said to have been filed by the petitioners therein (teachers), as per the procedure and, after hearing the parties concerned, may take a decision thereon, in accordance with law. 13. It appears that, in those representations, styled as appeals said to have been filed by the teachers concerned, the Manager of the college or the affected/substitute teachers were not made parties. However, it appears that the respondent ViceChancellor has passed the impugned Ext.P7 order dated 09.06.2022, after hearing the transferee teachers and the Management of the college. 14. The gist of the decision of the respondent-ViceChancellor, as reflected in the aforementioned Ext.P7 order dated 09.06.2022, is contained in the last two paragraphs of Ext.P7 and the W.A. Nos.946/2022 & 951/2022 7 ## same reads as follows (see page No.157 of the paper book in W.A. ## No.946/2022):- _“The Legal Advisor to the University raised the salient point as to why the Management had proceeded to execute the out of turn transfer in the midst of the academic year if it were not on account of a disciplinary measure. If so, why was the procedure violated and the petitioner teachers not given an opportunity to present their defence. It was also noted that the teachers were served with Charge Memos belatedly i.e., several days after the date mentioned in the Memo whereby they effectively had only 10 days to present their defence. Curiously, even before the expiry of the 10 days time, in fact on the 8[th] day the petitioner teachers were issued with relieving orders. The Counsel for the petitioners mentioned that this step by the Management was deliberately made to pre-empt the petitioner teachers from obtaining an interim order from the Hon’ble Court._ _On observing the above mentioned facts, it is seen that there is clearly a violation of proper and prescribed procedure for disciplinary action since the out of turn transfer done against the relevant provision in the Statutes constitute a disciplinary action. Over and above, the petitioner teachers have been denied natural justice. Therefore, the transfer appeals filed by the petitioner teachers are allowed.”_ 15. That apart, it appears from a reading of Ext.P7 that the same is not styled as an order but as a proceeding of the hearing, conducted by the Vice-Chancellor. 16. A reading of Ext.P7 would indicate the main reasons given by the respondent Vice-Chancellor to interfere with Ext.P7 transfer order, issued by the college management, are that, even according to the management, the impugned Ext.P7 transfer order was issued after the issuance of memo of charges and the ViceChancellor noted the submissions of the teachers that Anxs.A1, A2 & A3 memo of charges were not served to them immediately, but only W.A. Nos.946/2022 & 951/2022 8 later. Further, it is stated in the memo of charges that they have to give their defence statement within 10 days thereafter. That, it is without giving the abovesaid minimum of 10 days time, as offered in Anx.A1 memo of charges, Ext.P7 transfer order has been issued, thereby implying that the teachers concerned have been deprived an opportunity of hearing on the transfer issue as well as on the issue of disciplinary action. 17. From the submissions of Sri.C. Unnikrishnan, learned counsel appearing for the writ petitioners/transferee teachers, it appears that Statute 72 A (10) of the Kerala University First Statutes, 1979 provides that, ordinarily, transfer of teachers may not be made in the midst of an academic year, especially after the time for general transfers are finalized before the beginning of the academic year. Going by the wordings in the last two paragraphs of Ext.P7, it is slightly difficult for us to decipher the exact ideas sought to be conveyed therein. 18. We specifically querried both sides, as to their understanding of the reasoning in Ext.P7. From the submissions of both sides, it appears that two grounds were stated by the ViceChancellor to interfere with the transfer order; firstly, since the W.A. Nos.946/2022 & 951/2022 9 transfer order has been issued after disciplinary action, and since the memo of charges at Anxs.A series, offered them 10 days’ time to give their defence to the memo of charges and since the said memo of charges was not served to them before the issuance of the transfer order, the teachers concerned did not get an opportunity to defend their case, on the matters in relation to the transfer order. Secondly, by virtue of the provisions in the First statutes, it was not proper to have made a transfer in the midst of the academic year, as per Ext.P1 issued on 03.11.2021. 19. The learned Single Judge, after hearing both sides, has rendered the impugned common judgment, wherein it has been observed in para 10 that, normally, once a disciplinary action was initiated, transfer as a punishment could have been imposed only after the disciplinary action is over or in lieu of suspension. That the stand of the college management is that, it is to create a congenial atmosphere in the college that they have issued the transfer, after the issuance of the memo of charges, and that therefore it has to be held that the transfer order is punitive and to that extent the order of the Vice-Chancellor deserves acceptance. However, the learned Single Judge, in para No.11 of the impugned judgment, has held that this W.A. Nos.946/2022 & 951/2022 10 would be without prejudice to the continuance of the disciplinary action. It is in the light of these aspects that the learned Single Judge has refused to grant the relief sought for by the management for quashing the impugned Ext.P7 order of the respondent ViceChancellor, but has granted the relief of the transferee teachers concerned that the college management should implement the impugned Ext.P7 order of the respondent Vice-Chancellor, etc. 20. During the course of submissions, Sri.C.Unnikrishnan, learned counsel appearing for the transferee teachers, would point out that, if the grounds of interference, stated by the respondent Vice-Chancellor in Ext.P7, are not cogent and fully relevant, etc., then this Court may set aside the said order and remit the matter to the Vice-Chancellor for fresh action. 21. At the outset, we have made it clear that we are not in a position to accede to the said request made by contesting respondents, who are the transferee teachers concerned. Firstly, Ext.P7 order has been issued by the Vice-Chancellor only, at the instance of the said teachers. Secondly, they have not, in any manner, challenged Ext.P7 order and sought for a remit. On the other hand, the main prayer that they have raised in the present writ W.A. Nos.946/2022 & 951/2022 11 petition filed by them is that Ext.P7 order, issued by the respondent Vice-Chancellor, should necessarily be implemented by the college management. Thirdly, we see that this submission has never been made by the teachers concerned before the learned Single Judge. Fourthly and most importantly, we have reminded ourselves that the present proceedings before us are essential to test the legality and correctness of the transfer order issued by the college management and, sitting in an intra-court appeal, it may not be right and proper for us to give a prayer as sought for by the respondents in this appeal, which has never been canvassed by them. 22. Further, Sri.C. Unnikrishnan, learned counsel appearing for the teachers concerned, has also submitted that the impugned transfer order is vitiated by factual mala fides and certain submissions have been made in that regard. 23. A reading of the impugned Ext.P7 order would make it clear that such a case of factual mala fides has not been put forward by the contesting respondents herein or accepted by the respondent Vice-Chancellor. 24. We are essentially called upon only to decide the legality and correctness of Ext.P7 order of the respondent Vice-Chancellor, W.A. Nos.946/2022 & 951/2022 12 which has interfered with the Ext.P1 transfer order. Therefore, we have to confine our consideration only to the grounds of interference made by the respondent Vice-Chancellor in Ext.P7. 25. Essentially, the simple and straightforward reason, put forward by the college management is that, due to certain events, the college management was constrained to take disciplinary action against the contesting respondents herein, which led to the issuance of memos of charges dated 18.10.2021, issued as per Anxs.A1, A2 & A3. 26. The allegation made by the contesting respondents herein is that the said memos of charges were not served to them, before the issuance of the impugned Ext.P1 transfer order. It is thereafter that the impugned Ext.P1 transfer order has been issued on 03.11.2021, transferring the contesting respondents herein to 3 colleges in nearby districts. 27. The specific case of the college management is that the conduct of the contesting respondents became the subject matter of disciplinary action and in order to create a congenial atmosphere in the college, they have invoked their managerial power to transfer the teachers to nearby colleges, which, according to them, is in the W.A. Nos.946/2022 & 951/2022 13 exigencies of service and for the better administration of the college. 28. We will certainly examine the issue as to whether the impugned Ext.P1 transfer order is vitiated by legal mala fides and whether it has been issued for collateral and ulterior purposes, which are alien to the objectives of the transfer order. In other words, we will have to examine the issue as to whether the impugned transfer order, at Ext.P1, is a colourable exercise of the power or, in the terminology employed in administrative law of jurisprudence, whether it is a fraud on the power of transfer. 29. The said issue regarding legal malice has been cogently explained by the Apex Court in various decisions. In that regard, it will be profitable to refer to the decision of the Apex Court in _**State of Punjab & Another v. Gurdial Singh & Others**_ [1980 (2) SCC 471] p.475, para 9 thereof, which reads as follows:- _“9. The question, then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power—sometimes called colourable exercise or fraud on power and often times overlaps motives, passions and satisfactions–is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside_ W.A. Nos.946/2022 & 951/2022 14 _those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated : “I repeat . . . that all power is a trust–that we are accountable for its exercise–that, from the people and for the people, all springs, and all must exist”. Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power vitiates the acquisition or other official act.”_ 30. So, it is by now well settled that, if the use of the power is for the fulfillment of a legitimate object, the acquisition by malice is not legicidal. But the action is bad, where the true object is to reach an end, different from the one for which the power is entrusted and guided by extraneous considerations, good or bad, but irrelevant to the entrustment. Hence, the issue is as to whether a transfer order, on the ground that on account of the allegation, which led to the disciplinary action initiated against the incumbents concerned, for creating a better and congenial atmosphere in the institution (college), could have been issued, in the nature of Ext.P1. The Apex Court, in the decision in _**Union of India & Ors. v. Janardhan Debanath & Another**_ [(2004) 4 SCC 245], has held, in para No.14 thereof, that the allegations made against the employees therein were of serious nature and the conduct attributed is certainly unbecoming W.A. Nos.946/2022 & 951/2022 15 and whether there was any misbehaviour is a question of fact which can be gone into in a departmental proceeding. But that, for the purposes of effecting a transfer, the question of holding an inquiry, to find out whether there was misbehaviour or conduct unbecoming of an employee, is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement of holding an elaborate inquiry, as insisted by the employees therein, is to be considered, then the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. It was also held, in para No.12 thereof, that the manner, nature, and extent of exercise, to be undertaken by courts/tribunals in a case, to adjudge whether the use of the word “undesirable” casts a stigma or constitutes a punishment would depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions, etc. and the same yardstick cannot be applied to all categories of cases. Transfer, unless it involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to the same type of scrutiny, approach, and assessment, as W.A. Nos.946/2022 & 951/2022 16 in the case of dismissal, discharge, reversion, or termination and that, utmost latitude should be left with the authorities concerned to enforce discipline, decency, and decorum in public service, which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure the smooth functioning of the administration. It will be profitable to refer to the contents of paras 12 & 14 of the judgment of the Apex Court in _**Janardhan Debanath**_ ’s case supra [(2004) 4 SCC 245] p.251 & 252, which read as follows:- _“12. That brings us to the other question as to whether the use of the expression “undesirable” warranted an enquiry before the transfer. Strong reliance was placed by learned counsel for the respondents on a decision of this Court in Jagdish Mitter v. Union of India[2] (AIR p. 456, para 21) to contend that whenever there is a use of the word “undesirable” it casts a stigma and it cannot be done without holding a regular enquiry. The submission is clearly without substance. The said case relates to use of the expression “undesirable” in an order affecting the continuance in service by way of discharge. The decision has therefore no application to the facts of the present case. The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions — status, service prospects financially — and the same yardstick, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration._ _“14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a_ W.A. Nos.946/2022 & 951/2022 17 _departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as to costs.”_ 31. It has been held by the Apex Court, in decisions as in _**State of U.P. & Others v. Gobardhan Lal**_ [(2004) 11 SCC 402] that, it is well settled that transfer is an incident of service and it is a prerogative of the employer or the employee authorities concerned and the court should not normally interfere therewith, except when the transfer order is shown to be vitiated by _mala fide_ or it is issued in violation of any statutory provision or the same has been passed by an authority not competent to pass such an order, etc. Further, it has been held, in no uncertain terms, that allegations of _mala fide_ must be based on concrete material and must inspire the confidence of the court and where, in the writ petition challenging the order of transfer, disputed questions of facts raised, then, declining of discretionary jurisdiction is to be seriously considered, etc. W.A. Nos.946/2022 & 951/2022 18 Moreover, it is also held in para No.8 thereof that a challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is the reason that courts or tribunals cannot substitute their own decisions in the matter of a transfer for that of competent authorities of the State and even allegations of mala fides, when made, must be such as to inspire confidence or based on concrete materials and ought not to be entertained on the mere asking of it or on consideration, borne out of conjectures or surmises and except for strong and convincing reasons, etc. 32. In the case in _**Dr.Nagorao Shivaji Chavan v. Dr. Sunil Purushottam Bhamre & Others**_ [(2019) 13 SCC 788], the Apex Court has considered the impact of a transfer order vis-a-vis an enactment made by the legislature concerned, viz. Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act 2005, more particularly Secs.3 & 4 thereof. After considering various case laws on the subject, the Apex Court held that though the Statute stipulates that W.A. Nos.946/2022 & 951/2022 19 “ordinarily the tenure is three years”, but that in exceptional circumstances, or in a case of administrative exigencies, transfer is still permissible and that no absolute bar on transfer is created, by virtue of the provisions contained in Secs.3 & 4 of the abovesaid Act. We have referred to the abovesaid decision of the Apex Court in _**Dr.Nagorao Shivaji Chavan**_ ’s case supra [(2019) 13 SCC 788], as the matter involved the application of an enactment made by the State legislature concerned. Though Sec.3 of the said Act stipulated that the normal tenure of an employee in a post is for 3 years, it has been held that, in administrative exigencies or in exceptional cases, transfer is still permissible and that Secs.3 & 4 of the said Act cannot be said to create any absolute bar on the prerogative of the employer to effectuate transfer. 33. True that the object and purpose of a transfer order, which is an incident of service, is to tackle exigencies of service, administrative grounds, public interest, etc. So also, the disciplinary action is to be taken as per the procedure stipulated by the statutory Rules concerned, and it is the prerogative of the disciplinary authority concerned to decide whether suspension is required and also about the issuance of memo of charges and the procedure for inquiry, etc. W.A. Nos.946/2022 & 951/2022 20 34. In a case where disciplinary action is contemplated or has already been initiated, if the employer is of the considered opinion that, for creating a congenial atmosphere in the institution concerned or to ensure that the course of the disciplinary action is not interfered with by the employee concerned, it could be open to the employer to issue a transfer order, so as to transfer the employee concerned to a different station and such a ground would certainly come within the ambit of exigencies of service or administrative ground. 35. It cannot be contended for a moment that, it is not as if disciplinary action is proposed then, if the employer does not want the employee to remain in that station, pending the disciplinary inquiry, then the only course of action, available to the employer, is to suspend the employee concerned from service. 36. In the light of the abovesaid case laws, we are of the view that, issuance of a transfer order, pending either in contemplation or during the pendency of disciplinary action, for the purpose of creating a proper atmosphere in the department concerned or, to ensure that the employee concerned does not get the opportunity to affect the process of disciplinary inquiry, etc., then such a course of action is certainly available and it will not be right and proper to hold W.A. Nos.946/2022 & 951/2022 21 that such a transfer order issued, in the light of such a factual scenario, is one which is issued as a colourable exercise of power or as a fraud on the power or that the same is vitiated by legal mala fides. 37. Further, very crucially, we note that no proper grounds for interfering with the transfer order are made out in the impugned Ext.P7 order of the Vice-Chancellor. 38. We have already indicated that we found certain difficulty in deciphering as to what exactly was meant to be conveyed by the contents of the last two paragraphs of Ext.P7. From the submissions of both sides, it appears that the main ground of interference is that, even according to the stand of the management, the same has been issued in the light of a disciplinary action, taken in pursuance of the memo of charges issued. Hence, it has been held that, since memo of charges was not served to the teachers concerned, before the issuance of the transfer order, then they have been deprived of an opportunity to defend their case before the issuance of the transfer order, etc. In a matter of this nature, it is not imperative or mandatory that the employee concerned should necessarily hear the affected employees concerned before issuance of a transfer order, merely because a memo of charges has also been issued or if W.A. Nos.946/2022 & 951/2022 22 disciplinary action is contemplated. In cases of this nature, the employer may either issue the memo of charges or the disciplinary action may be in contemplation or they may even decide that, for the time being, no disciplinary action is called for and the requisite exigencies of service are met by a transfer order, so as to create a proper working atmosphere in the institution/department concerned. The first ground of interference made in Ext.P7 appears to be on irrelevant grounds. The second ground appears to be that the impugned transfer order at Ext.P1 has been issued on 03.11.2021, which is in the midst of the academic year 2021-22 and that, therefore, the same is in violation of Statute 72 A (10) of the First Statutes, framed under the University Act, which stipulates that, ordinarily, transfer of teaching staff, in the midst of an academic year, may not be made, especially after the finalisation of general **-** transfers, etc. Statute 72A(10) of the First Statutes reads as follows: _“Statute 72A. (10) General transfers shall be effected only once in a year and they shall be ordered by the first week of May every year. The Corporate Management shall obtain applications for transfers from the teachers till 15th of March every year, provided that transfers shall be effected on the commencement of this amendment Statute within one month after the last date prescribed for the receipt of option from the teachers. Applications for transfer shall be given along with the form of option.”_ 39. The afore statutory provision cannot be said even W.A. Nos.946/2022 & 951/2022 23 remotely to have any prohibition or restriction therein to make any transfer order in the midst of an academic year in the exigencies of service, interest of administration or public interest, after making general transfers of incumbents as contained in that provision. So we fail to see how the above statutory provision can trammel the rights of the college management to make transfer in the exigencies of service, interest of administration, etc. and the contra finding in the impugned order of the Vice-Chancellor is illegal and perverse. 40. After hearing both sides we are of the view that, according to the case of the management, they were facing an emergent issue of discipline in the college and therefore, they had issued Anx.A series memo of charges on 03.11.2021. 41. We have already held that, in cases of this nature, transfer, for the abovesaid grounds, is to be held within the exigencies of service or administrative grounds. The transfer that is made is not a routine transfer and therefore, the Statute concerned cannot be said to be affected. Hence, the impugned transfer order at Ext.P1 cannot be said to be affected by the abovesaid Statute 72 A (10). 42. We have already referred to the impact of a provision of the parent enactment, contained in Secs 3 & 4 of the abovesaid W.A. Nos.946/2022 & 951/2022 24 Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act 2005, referred to in the judgment of the Apex Court in _**Dr.Nagorao Shivaji Chavan**_ ’s case supra [(2019) 13 SCC 788], wherein it has been held that the stipulation in Secs 3 & 4 of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act 2005, that the tenure of an employee in a transferred post is for 3 years, does not absolutely create a bar in the right of the employer to effect transfers in the exigencies of service or in exceptional cases. According to the management, they were facing an emergent issue of discipline in the college and that therefore, they had issued the impugned Ext.P1 transfer order in the midst of the academic year. 43. It will be beyond the limited powers in judicial review to adjudge, based on factual appreciation, as to whether the management should or should not have issued such a transfer order. 44. The issue as to whether it is a serious matter, which requires emergent action, in the midst of an academic year, which would all come within the prerogative right of the employer management. If the judicial review courts will have to evaluate those W.A. Nos.946/2022 & 951/2022 25 aspects, then certainly, it will not be a proper approach in dealing with judicial review of transfer matters. 45. Hence, these crucial aspects of the matter have not been duly taken note of, in the rendering of the impugned judgment in the W.P.(C). The approach made therein, as if once a memo of charges was issued, then transfer orders should have been seen only as a punishment or as a penal measure and that therefore, the same is illegal, cannot be the right and proper approach. The upshot of the above discussion is that the impugned Ext.P7 order, issued by the respondent-Vice-Chancellor, is not sustainable. 46. It should also be borne in mind that the transfer orders have been issued on 03.11.2021 and all the teachers concerned and the substitute teachers have joined duty in the respective colleges concerned long ago. 47. In that view of the matter, it is ordered that the impugned decision of the respondent Vice-Chancellor, rendered on 09.06.2022 (produced as Ext.P7 in W.P.(C) No.21967/2022 and as Ext.P14 in W.P.(C) No.20924/2022) will stand quashed and set aside. Further, it is also ordered that the impugned common judgment, rendered on 11.07.2022 in W.P.(C) No.21967/2022 & W.P.(C) No.20924/2022, W.A. Nos.946/2022 & 951/2022 26 will stand set aside. 48. It is made clear that we have not entered into the merits of the controversy, in any manner, and none of the observations and findings, made either in the abovesaid impugned Ext.P7 order or in the impugned judgment in the W.P.(C) or in this appeals, shall, in any manner, affect the finalisation of the disciplinary action, which will have to be effected independently and in accordance with law. With these observations and directions, the above writ appeals will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **SHOBA ANNAMMA EAPEN, JUDGE** Skk//30082022 W.A. Nos.946/2022 & 951/2022 ## **`APPENDIX OF WA 946/2022`** ## **`PETITIONERS' ANNEXURES:-`** |`ANNEXURE A1`|`TRUE COPY OF THE MEMO OF CHARGE DATED`| |---|---| ||`18-10-2021 SERVED ON THE 3RD RESPONDENT.`| |`ANNEXURE A2`|`TRUE COPY OF THE MEMO OF CHARGE DATED`| ||`18-10-2021 SERVED ON THE 3RD RESPONDENT.`| |`ANNEXURE A3`|`TRUE COPY OF THE MEMO OF CHARGE DATED`| ||`18-10-2021 SERVED ON THE 3RD RESPONDENT.`|