IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU Date: 12-07-2011 WRIT PETITION No.15302 OF 2011 Between: Syed Fazlur Raheem .. Petitioner And Government of Andhra Pradesh rep. by its Principal Secretary to Government, Higher Education Department, Secretariat Buildings, Hyderabad and seven others .. Respondents WRIT PETITION No.15303 OF 2011 Between: Mohammed Faize .. Petitioner And Government of Andhra Pradesh rep. by its Principal Secretary to Government, Higher Education Department, Secretariat Buildings, Hyderabad and seven others .. Respondents WRIT PETITION No.15304 OF 2011 Between: Syed Sayeeduddin Tanveer .. Petitioner And Government of Andhra Pradesh rep. by its Principal Secretary to Government, Higher Education Department, Secretariat Buildings, Hyderabad and seven others .. Respondents WRIT PETITION No.15305 OF 2011 Between: Mohammed Fayyaz .. Petitioner And Government of Andhra Pradesh rep. by its Principal Secretary to Government, Higher Education Department, Secretariat Buildings, Hyderabad and seven others .. Respondents COMMON ORDER: These writ petitions are filed, under Article 226 of the Constitution of India, seeking to issue a writ of Mandamus declaring the action of respondent Nos.1, 2 and 6 to 8 in not acting legally so as to direct respondent No.3 to cancel the orders transferring the petitioners from Muffakhamjah College of Engineering and Technology to Sultan-ul-uloom Public School, Golkonda, Hyderabad, vide proceedings dated 30-05-2011 as arbitrary and illegal and consequently, set aside the same along with the consequential order passed on 31-05-2011 after declaring that the petitioners cannot be transferred from out of the Engineering College. 2. Since common point is involved in all the writ petitions, they are being disposed of by this common order. 3. The grievance of the petitioners is that the third respondent had transferred the petitioners from Muffakhamjah College of Engineering and Technology to Sultan-ul-uloom Public School, Golkonda, Hyderabad, without any authority, jurisdiction and only to harass the petitioners, who have been demanding pay revision and payment of arrears due to application of the scales under 6th Pay Commission for teaching staff and regularization of services of teaching and non teaching staff. It is their case that they hold requisite qualifications and they were interviewed and selected for the post of Lab Assistant/Lab Technician in due selection process. This lab is attached to the Electrical Engineering Department of respondent Engineering College. The respondents 3 and 4 institutions were not implementing the various pay scales though AICTE and the Osmania University insisted for adherence to payment of salaries as per scales. The pay revision recommendations were also made not applicable. Due to this non- implementation of scales and non-payment of correct salaries, two separate Associations were formed in the Engineering College and made effective representations for charter of demands followed by demonstrations and wearing of black badges. The management did not pay attention to all these activities and had resorted to illegal action of transfer of the activists of JAC from Engineering College to High School and Junior Colleges. A plain reading of the transfer orders indicates that these are vindictive, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India. Persons with technical and scientific qualifications selected/appointed and made permanent in a post in the Engineering College cannot be asked to go to a school. This amounts to change of cadre. This is not permissible under the A.P. Education Act, 1982 and there is no equivalent post in the School/Junior College to which the petitioners were transferred. Hence, the writ petitions. 4. Respondents 3 to 5 filed counter affidavit denying all the material allegations made by the writ petitioners. It is stated that the writ petitions are not maintainable as the writ petitioners seek to challenge the action of third respondent, which is a private body, being a society registered under the Societies Registration Act. The third respondent is not ‘State’ within the meaning of Article 12 of the Constitution of India and further the petitioners have failed to make out any violation of any of their fundamental or statutory rights. The impugned orders are mere administrative orders of transfer issued by the third respondent and the petitioners have filed the above writ petitions only to get over the said transfer orders, which is impermissible in law. Clause 3.IX of the Memorandum of Association (Rules and Bye-laws) of the Sultan-ul-Uloom Education Society deals with the powers of Board of Governors. Sub-Section (iv) states, “to create posts and make appointments on such terms as it may in its absolute discretion decide, fill vacancies, direct transfers, retirements and give promotions, increments, honorarium and grant leave as also extension of service to any officer, clerk or any other employee of the Society and to do all such other acts and things as may be necessary in connection with the employee in the society”. Rights of administration in respect of Minority Institutions are statutorily protected under Article 30 (1) of the Constitution of India. Respondents denied that the transfer orders are issued to harass the employees who have been demanding pay revision and payment of arrears. The transfers do not amount to punishment or reduction in rank. There has been no improper or non- implementation of scales or salaries. The transfers cannot be understood that management has acted to create panic or fear in any ones minds much less, amongst the teaching and non- teaching staff. The management issued the transfer orders for administrative reasons and the impugned orders would not cause prejudice to the rights of the petitioners in any manner. There is no change in the cadre of petitioners. It is also denied that there is no equivalent posts in the transferred institution. The petitioners are employed by the Society and their employment cannot be regulated by any outside agency including AICTE. Hence, they prayed to dismiss the Writ Petition. 5. Learned counsel for the petitioners contended that the petitioners are Engineering graduates drawing salaries not less than Rs.58,000/- per month each, working in a sanctioned post working in an Engineering College laboratory; that they are transferred to High School where there is no cadre or permanent post, thereby depriving their rights in the status and the scale attached to the post; that the action of the respondents 3 to 5 is contrary to the Rules applicable, as the service conditions of the petitioners are being affected; that in view of this arbitrary order, the statutory provisions of the statute have been violated; that therefore, the writ is maintainable and hence, he prays to cancel the transfer orders of the petitioners. 6. The main argument of learned counsel for petitioners in all the writ petitions is that when there is no sanctioned post equivalent to the post of petitioners in the High School, the question of transfer does not arise. 7. On the other hand, learned counsel for the respondents 3 to 5 contended that the third respondent society, which is running the Engineering College and other schools, is not ‘State’ within the meaning of Article 12 of the Constitution of India; that a writ or direction for violation or infringement of any fundamental right of the petitioners cannot be issued and so, the writ petitions are not maintainable; that petitioners have been transferred to work in the laboratories maintained by the society; that by virtue of such transfer the petitioners’ emoluments and status have not been effected in any manner; that in the absence of any violation of mandatory statutory provision, no direction can be given under Article 226 of the Constitution of India to a society even if it comes within the meaning of person or authority and hence, he prays to dismiss the writ petitions. 8. With regard to maintainability of the writ petitions, it is not in dispute that the third respondent society is not ‘State’ within the meaning of Article 12 of the Constitution of India. It is a ‘society’ registered under the Societies Registration Act, 1860. The society is not controlled or owned by the Government. Therefore, the petitioners cannot contend that there is a violation or infringement of any of their fundamental rights as enumerated in Part-III of the Constitution of India. No doubt, in case of infringement of any ordinary legal or statutory right or when a person or other authority has some public duty, statutory or non-statutory or is discharging some public function, remedy under Article 226 of the Constitution of India would lie There cannot be any dispute that a writ against a person or other authority is maintainable provided that a person or authority violated any mandatory statutory public duty. This aspect of the case has been dealt with by a Full Bench of this Court in a case in Sri Konaseema Co-Operative Central Bank Limited v. N. Seetharama Raju[1], wherein it is held in paragraph No.51 (ii) as follows: “51 (ii) Even if a Society cannot be characterised as a 'State' within the meaning of Art. 12, even so a writ would lie against it to enforce a statutory public duty which an employee is entitled to enforce against the Society. In such a case, it is unnecessary to go into the question whether the Society is being treated as a 'person', or an 'authority', within the meaning of Art.226 of the Constitution. What is material is the nature of the statutory duty placed upon it, and the Court will enforce such, statutory public duty.” 9. On this aspect, it is also pertinent to refer to a decision reported in M/s. Zee Tele Films Ltd. & another v. Union of India & others[2], wherein it is held in paragraph No.32 as follows: “This Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ore. has held : "Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to "any person or authority". The term "authority" used in the context, must receive a liberal meaning unlike the term in Article 12 which is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers powers on the High Courts to issue writs for enforcement of the fundamental rights as well as non- fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party, no matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied." From the above decision, it is clear that the nature of duty is relevant and the nature of the statutory relief to a private person is relevant and the Court has to enforce such statutory public duty. 10. In another decision reported in Praga Tools Corporation v. C.V. Immanual & others[3], wherein it is held as follows: “Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities. [Cf. Halsbury's Laws of England (3rd Ed.), Vol. II, p. 52 and onwards]. The company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company.” 11. The appointment order of the petitioners would go to show that they were appointed as Laboratory Assistants/Laboratory Technician in Electrical Machines Laboratory. At this stage, by virtue of the appointment order it would go to show that their duty is to teach or enlighten the students with regard to the scientific aspects in the laboratory. 12. There is no public law element involved. The petitioners did not aver in the affidavit or reply affidavit that by virtue of the impugned orders, a mandatory statutory provision has been violated. Though it is stated that All India Council for Technical Education is giving instructions with regard to pay scales and service conditions issued from time to time, the impugned order does not indicate that by virtue of that order, the service conditions of the petitioners are being affected seriously or that they were put in a disadvantageous position. Similarly, the benefits that they were getting while they were working in the laboratory of the college are not being cut down or affected by transferring them to a school. Therefore, primary function of the petitioners is to work in the laboratory. The only difference is that in the college they would demonstrate the practicals in the laboratory to the Engineering students, whereas they have to discharge the same functions in the school to the pupil. Therefore, in no manner the rights of the petitioners are being affected. 13. Even assuming for a moment that there is no post, cadre or strength available in the school to which the petitioners were transferred, still they continue to be employees of the third respondent society, as the school is also under the management and control of the third respondent. They would continue to draw the emoluments from the cadre or post in which they were appointed. 14. On administrative grounds because the services of the petitioners are required in the laboratory of the school they were transferred. Though it is contended that as they are office barears of the Joint Action Committee, espousing the cause of other employees with regard to the proper payment of salaries the transfers are effected, the same cannot be accepted in the absence of any imputations levelled against the Principal, who effected the transfers. The Principal is not an agent or a uninominal party. Therefore, the contention of the learned counsel for the petitioners on this aspect is devoid of merit. In the absence of any public duty involved on the respondents 3 to 5, ordinarily this Court would not issue a Mandamus to enforce any right, in pursuance of the bye-laws of the society. 15. There cannot be any dispute that the transfer, in the general sense, is one of the incidents of the service. Ordinarily, this Court would not interfere with the transfer of an employee when it is made on administrative grounds, unless the transfers is vitiated by mala fides or it is made contrary to the Rules or the person who issued the order has no jurisdiction. Transfer in relation to service reduced to simple terms, means a change of place of employment within an organisation. It is an incident of public service, does not require the consent of the employee. The basic jural relationship of employer and employee is not affected in any manner by transfer. The case of the petitioners does not fall under any one of the three categories as mentioned above. 16. The learned counsel for the petitioners relied upon a decision of the Hon’ble Supreme Court reported in C.C.Padmanabhan & Others vs The Director Of Public[4], where-under it is held thus: “The first is that the post of an A.E.O. carries a special pay of Rs.50/- per month, and, therefore, ensures for its incumbents higher emoluments than are available to an H.S.A. The second is that the special pay is counted towards pension as is made out on a reading of rules 12(23) and 62 of the Kerala Service Rules. According to rule 12(23) special pay is part of 'pay' while rule 62 states inter alia that emoluments which are reckoned for pension include pay as defined in rule 12(23). The post of an A.E.O. thus carries with it not only benefits enjoyable by the incumbent so long as he holds the post but also such as are available to him after retirement. The substantial improvements in the benefits which an H.S.A. thus enjoys after his posting as an A.E.O. constitute a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an H.S.A. as an A.E.O. and vice-versa so that mere caprice does not deprive an A.E.O. of the benefits enjoyed by him.” 17. The learned counsel for petitioners also relied upon another decision of the Hon’ble Supreme Court reported in Governing Body St. Anthony’s College, Shilliong v. Rev. Fr. Paul Petta of Shillong, East Khasi Hills[5], wherein it was held that the status of the petitioner therein was seriously affected as the petitioner therein was transferred from the post of Principal to the post of Teacher in another school. 18. The learned counsel for petitioners relied upon another decision reported in Vice-Chancellor, Lalit Narain Mithila University v. Devanand Jha[6], wherein it is held thus: “The power of the Vice-Chancellor to transfer any teacher under Section 10(14) is controlled by the use of the word 'Samakaksh' and he can not transfer any teacher from one post to another in a department of the university or a college unless they belong to the same class. In that view, there can be no doubt that the two posts of Principal and Reader cannot be regarded as of equal status and responsibility.” 19. The above decisions have no application to the petitioners’ case because those are the cases where by virtue of transfer orders the service conditions, such as status and emoluments, of the petitioners have been severely affected and therefore, in the circumstances of those cases, it was held that the transfer orders are contrary to the Rules and the same were set aside. 20. The learned counsel for petitioners also relied upon a decision of Hon’ble Supreme Court reported in Prasar Bharti and others Vs. Amarjeet Singh and others[7] wherein in paragraph No.13, it is held thus: “There exists a distinction between “transfer” and “deputation”. “Deputation” connotes service outside the cadre or outside the parent department in which an employee is serving. “Transfer”, however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications.” From the above decision, it is clear that there must be equivalent post in the same cadre and the same Department. 21. By virtue of the impugned order the petitioners are transferred from an Engineering College to a High School. The learned counsel for the petitioners produced the bye-laws and the Rules, whereunder there is no sanctioned post or cadre post in the schools managed by the third respondent. The transfer order, reads as follows: “You are aware that you are working as Lab. Supervisor in Electrical Engg. Department of our Muffakham Jah College of Engineering and Technology. However, Your services are required at Sultan-ul-uloom Public School, Hafeez Baba Nagar, which is also an institution run by our society. Therefore, you are hereby transferred from Muffakham Jah College of Engineering and Technology to Sultan-ul-uloom Public School, Hafeez Baba Nagar. Your transfer is made on administrative grounds. You are instructed to report to the Principal, Sultan-ul-uloom Public School, Hafeez Baba Nagar on 1.6.2011 at 9.00 A.M. Since you are on vacation, after reporting at Sultan-ul-uloom Public School, Hafeez Baba Nagar on 1.6.2001, you can continue your vacation as per approved slots. There is no change in your pay emoluments, service conditions and other existing benefits.” 22. As seen from the impugned proceedings it is made clear that there is no change in the pay, emoluments, status and other existing benefits. It was passed on administrative grounds. As the services of the petitioners are required at the High School, being run by the third respondent, they were transferred from the Engineering College to the High School. It is not in dispute that there is a laboratory available in the school to which the petitioners were transferred. 23. Therefore, for the aforesaid reasons, the impugned order passed by the third respondent does not warrant any interference by this Court, in the absence of any violation or infringement of mandatory statutory provision. Hence, the writ petitions are devoid on merits. 24. Accordingly, the writ petitions are dismissed. There shall be no order as to costs. ______________________ JUSTICE K.C. BHANU July 12, 2011. Pn THE HON'BLE SRI JUSTICE K.C. BHANU W.P.No.15302,15303,15304 & 15305 OF 2011 July 12, 2011 Pn [1] AIR 1990 AP 171 [2] 2005 AIR SCW 2985 [3] AIR 1969 SC 1306 [4] AIR 1981 SUPREME COURT 64 [5] AIR 1988 SUPREME COURT 2005 [6] AIR 1986 Supreme Court 1200 [7] (2007) 9 SCC 539,