IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:09.02.2010 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.NO.24820 OF 2009 AND M.P.NO.1 OF 2009 C.J.Anburaj ....Petitioner Vs. 1.The Dsitrict Elementry Educational officer, Thiruvallur, Thiruvallur District. 2. The Correspondent, C.S.I. Middle & Elementary Schools, Madras South and Central, 9, Irusamanallore, Kinar Post, Madurantakam Taluk, Kanchipuram District. ...Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records relating to the order of transfer passed against the petitioner by the 2nd respondent dated 13.11.2009 and to quash the same and direct the 2nd respondent to post the petitioner at C.S.I. Primary School at Palavanthangal. For Petitioner : Mr.S.Doraisamy For Respondent No.1: Mrs.E.Ranganayaki Government Advocate For respondent No.2:Fr.A.Xavier Arulraj O R D E R The petitioner is working as a Secondary School Teacher in the school run by the second respondent management. The second respondent runs the trust of schools and it is also declared as minority Educational Institutions under Article 30(1) of the Constitution of India. The petitioner was transferred by an order dated 12.6.2009 from the CSI Primary School at Thiruninravur, Poonmalee Range to the CSI Primary School , Pazhavanthangal with https://hcservices.ecourts.gov.in/hcservices/ effect from 12.6.2009. The petitioner filed a writ petition being W.P.No.10502 of 2009 before this Court. The contention raised by the petitioner was that in the transferred school, there are no sanctioned posts so as to accommodate the petitioner and therefore, the transfer order was illegal. 2. This Court by a final order dated 8.9.2009 in Paragraphs 6 and 8 ordered as follows: "6. In view of the above statement made by the District Elementary Educational Officer, in my considered opinion, the transfer of the petitioner to C.S.I. School at Pazhavanthangal cannot be sustained. Though both the schools are under the same management, the petitioner cannot be transferred to a post which has not been sanctioned by the Department. Therefore, the impugned order is liable to be quashed on this ground alone. 8. At this juncture, the learned counsel for the fourth respondent would submit that after the impugned order of transfer, the petitioner has neither joined in the transferee school nor discharging his functions in the present school. In my considered opinion, in this writ petition the said question need not be gone into. It is made clear that this order shall not stand in the way of the Management transferring him in future in accordance with law."(Emphasis added) 3. Subsequent to the order passed by this Court, the present impugned order came to be made transferring the petitioner to an approved post. The petitioner was transferred to CSI primary School at Arukkanpattu in Cuddalore District by order dated 13.11.2009. In the order itself, it was stated that since the place was available in some other District,with the consent of Bishop in Madras and Manager of all CSI schools, the petitioner's transfer is necessitated and there are no posts available in the existing District, in which the petitioner is working. It was also stated that he is transferred subject to the approval of the Department. The petitioner has come forward to challenge the said order. 4. Notice was directed to be issued on 3.12.2009. On notice from this Court the second respondent has filed a counter affidavit dated 18.1.2010. In the counter affidavit, it was stated that only pursuant to the earlier order passed by this Court wherein the petitioner himself has stated that he should be transferred to a place where approved posts are available, the https://hcservices.ecourts.gov.in/hcservices/ present transfer took place and even in the earlier place viz.,Pazhavanthangal, there are no place available and the petitioner is accommodated only because his requirement in the earlier school has become surplus and therefore the proceedings were initiated. Since the petitioner wanted a clear approved school, the transfer order came to be made. 5. Though this Court attempted to find out from the counsel appearing for the second respondent in respect of accommodating the petitioner in any nearby place, learned counsel informs this Court that there are no post available other than the one which the petitioner has been transferred. Since the petitioner by transfer has been accommodated against the sanctioned post, this Court do not find any illegality or infirmity. Only because that the place of posting in Cuddalore District by itself cannot be a ground for resisting such a transfer order. 6. The question as to whether a teacher working in an aided private school run by minority can be transferred out of one school to other school came to be considered by a Full Bench of this Court in The Correspondent, Malankara Syrian Catholic School, Marthandam,Kanyakumari District Vs. J.Robinson Jacob and others reported in 1998 III MLJ 595. In that case, the Division Bench held in Paragraphs 26 and 32 as follows: "26. From the resume of the observations made above it can be safely concluded that transfer is not necessarily included in the conditions of service as a term of the conditions of service. Transfer is a specie of the appointment and being one of the modes of appointment, cannot be included in the appointment itself unless it is expressly or impliedly provided for. Thus, the assumption that the power to transfer is included in the power of appointment is unsustainable. Power to transfer involving the cessation of appointment would depend upon the nature of the transaction involved. May be in peculiar facts where it does not bring about any alterations of the conditions of service, change of master, change of place, alteration in the terms of appointment, usage prevalent in the statutory provisions, rules and regulations and structure, duration of employment and various other circumstances may provide for a lead that it is an incident of service. The question whether it is an incident of service has to be determined in the facts and circumstances of each and every case and is a question of fact. https://hcservices.ecourts.gov.in/hcservices/ 32. In view of the observations made in the earlier part of the judgment, the right to transfer is not in all circumstances cannot be taken into the fold of administration. It will depend upon peculiar facts and circumstances of each case. There cannot be any absolute rule that right to transfer is a right to administer minority institutions, protected under the umbrella of Art.30 of the Constitution of India. Consequently, question No.4 is also answered in negative.". 7. Subsequently, the said Full Bench decision came to be considered by a subsequent Division Bench vide its judgment in The Manager, R.C.Schools, Salem Social Services Society, Alagapuram,Salem and another Vs. G.Vincent Paulraj, Peramanur, Salem reported in 2003 III MLJ 835, the Division Bench after referring to the Full Bench opinion, held in Paragraphs 4 ,5 and 6 as follows: 4. The ratio of the decision of the Full Bench, therefore, is that transfer is not prohibited by the provisions of the Act; that if in a given case it is shown that transfer is a condition of service having regard to the terms of the contract between the parties, then transfer is permissible subject to the transferee not being deprived of the benefits of his service prior to such transfer. 5. The facts and circumstances of each case have to be examined before a decision can be rendered as to whether transfer is or is not permissible. Factors relevant for determining that question would be whether transfer is provided for in the contract of service, as to whether a common seniority list is maintained and as to whether, by reason of the transfer, the transferred employee is deprived of any of the benefit to which he is otherwise entitled prior to the transfer. 6....... The policy of the Act therefore is not to prohibit more than one school being run by the same corporate body. The fact that statutory agreement does not specifically refer to transfer would not come in the way of the concerned parties agreeing to such a condition https://hcservices.ecourts.gov.in/hcservices/ or agreeing to continue to be bound by such a condition in a contract entered prior to coming into force of this Act. As to whether such a condition providing transfer in fact formed part of the contract is a question of fact..........". 8. In the present case, the case of transfer is not arising out of any administrative reason. Because the petitioner's requirement in the existing school was not held to be necessary, as it become surplus, due to want of economic strength and in the earlier round of litigation, the petitioner himself sought for posting only in the school where approved vacancies are available, the impugned order of transfer did not require any interference. The writ petition shall stand dismissed. Two more weeks is granted to the petitioner to join in the transferred place, if he so desires. No costs. Consequently, M.P.No.1 of 2009 is also dismissed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. VJY To 1.The District Elementary Educational officer, Thiruvallur, Thiruvallur District. 1 cc to Mr.Fr.A. Xavier Arulraj, Advocate, SR. 8612 1 cc to Government Pleader, SR. 8337 W.P.NO.24820 OF 2009 MRD (CO) kk 22/2 https://hcservices.ecourts.gov.in/hcservices/