THE HON’BLE SRI JUSTICE K.C. BHANU WRIT PETITION No.15288 OF 2011 ORDER: This Writ Petition is filed to declare the proceedings, dated 07.05.2011 and 31.05.2011, issued by the Secretary, Sri Venkateswara Vidyapeeth, M.V.P. Colony, Visakhapatnam, posting the petitioner as Principal, SVVP Degree College, R.R.V. Puram, Gopalapatnam, Visakhapatnam and assigning duties as mentioned in the said proceedings, as illegal and arbitrary and consequently, declare that the petitioner is entitled to continue as Lecturer in Physics at S.V.V.P.V.M.C. Mahila Vidya Peeth Degree College, M.V.P. Colony, Visakhapatnam. 2. The averments in the Writ Petition, in brief, may be stated as follows: The petitioner was appointed as Lecturer in Physics on 16.08.1991 on temporary basis in S.V.V.P.V.M.C. Mahila Vidya Peeth 1st Grade Women’s College. In pursuance of the orders issued in G.O.Ms.No.12, dated 10.01.1992, respondent No.1 College issued advertisement for regular recruitment of the posts of Lecturers. The petitioner participated in the selection and the governing body of respondent No.1 College approved the selection of petitioner on 13.09.1993. Thereafter, the petitioner was appointed as Lecturer in Physics in respondent No.1 College vide proceedings, dated 13.07.1994. Even though the petitioner was appointed on regular basis, respondent No.2 did not pay salary to the petitioner as per the government scale of pay applicable to the post held by her. Challenging the same, the petitioner along with one M.D. Sowjanya filed W.P.No.22335 of 2008, wherein respondent Nos.2 and 3 herein were directed to consider the proposal submitted by respondent No.1 College for admitting the posts in Science Department to grant-in-aid and respondent No.1 herein was directed to pay the applicable government scales to the petitioners therein. Thereafter, since the petitioner was not paid the salaries regularly, she filed a writ petition and a contempt case against respondent No.2. On 07.05.2011, respondent No.1 issued proceedings posting the petitioner as Principal, SVVP Degree College, R.R.V. Puram, Gopalapatnam, Visakhapatnam, with certain duties viz., to advertise for the admissions and filling up the posts of Lectures, to do marketing to mobilize students for admission into the College etc. As the petitioner has not reported to duty at SVVP Degree College, respondent No.1 issued proceedings, dated 31.05.2011, stating that the petitioner has not reported at SVVP Degree College, and directed the petitioner to explain as to why her absence at the said College, should not be treated as unauthorized absence and take action to terminate her services. Hence, the Writ Petition. 3. Respondent Nos.1 to 4 filed counter affidavit denying the averments made in the Writ Petition and stating that respondent No.2 - College is not a State under Article 12 of the Constitution of India; that respondent No.2 - College is a private College and the petitioner is a private lecturer; that the petitioner is paid salary by the Management; that it is not a grant-in-aid post; that all the duties which are entrusted to Principal of a College are entrusted to the petitioner; that as the petitioner is working under private management, respondent No.1 can transfer her without her consent; that a private management need not obtain permission from the competent authority before transferring a person from one institution to another; that the petitioner was not asked to do marketing duties; that the petitioner was promoted and transferred and hence, they prayed to dismiss the Writ Petition. 4. Learned counsel for the petitioner contended that with a view to take vengeance against the petitioner, as she filed a writ petition against respondent No.2 - College, she was transferred to another Educational Institution to discharge her duties as a Principal; that the duties mentioned in the proceedings impugned would clearly go to show that the petitioner has to contact students for the purpose of admission, which is not her duty; and that transferring the petitioner from one institution to another is not in accordance with law and hence, he prays to set aside the impugned proceedings. 5. Learned counsel for respondent Nos.1 to 4 contended that respondent No.2 is not a State within the meaning of Article 12 of the Constitution of India; that therefore, the Writ Petition is not maintainable and hence, he prays to dismiss the Writ Petition. 6. It is not in dispute before this Court that respondent No.2 - College is registered under Societies Registration Act, 1860, and it is not controlled and financed by the Government of Andhra Pradesh. It is not a funded or aided institution. Therefore, it is not a ‘State’ within the meaning of Article 12 of the Constitution of India. Even if respondent No.2 – College is not a State or instrumentality of a State or local or other authority, as mentioned in Article 12 of the Constitution of India, a Writ Petition under Article 226 of the Constitution of India is maintainable when there is violation of any statutory right. There is no bar under Article 226 of the Constitution of India to file a Writ Petition against a private person or a private authority, who was discharging the public duties or public functions in pursuance of any statute, if they have violated the same. This aspect of the case has been dealt with in a Full Bench decision of this Court 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.” 7. 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 and the nature of the statutory relief to a private person is relevant and the Court has to enforce such statutory public duty. 8. In another decision reported in Praga Tools Corporation v. C.V. Immanual & others[3], 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.” 9. There cannot be any dispute that the transfer in the general sense is one of the incidents of the service. The petitioner cannot question the transfer as a matter of right, unless the transfer order is vitiated by mala fides or the transfer is made contrary to the Rules or the person, who passed the order, has no jurisdiction. The case of the petitioner does not fall under any one of the three categories mentioned above. In the entire affidavit filed in support of the Writ Petition, there is no mention about violation of any mandatory statutory provision of any enactment. 10. Learned counsel for the petitioner relied upon a decision of this Court in G.V. Narasimham v. The Govt. of A.P.[4], wherein it is held thus: “G.O.Ms.No.233 dated 20.10.1993 was a specific circular on the question of seniority in private aided oriental colleges and filling up of the posts of Principal in those colleges treating the colleges as single units. On the other hand, G.O.Rt.No.401 dated 01.11.1994 is only relating to the abolition of the STRNSS Kalasala and took a general decision there that the staff of the closed institution shall be absorbed where there is work load. It was neither a circular relating to private aided oriental colleges, nor was it a circular relating to promotion to the post of Principal in those colleges. The circular only stated that the staff of the closed college would be adjusted wherever there is work load. Such a provision by itself does not supersede G.O.Ms.No.233 dated 20.10.1993, though it cannot be doubted that if the Government so wants, they can either modify or cancel G.O.Ms.No.233 dated 20.10.1993. But since that has not been done we must hold G.O.Ms.No.233, dated 20.10.1993 to be operative on its own force and as regulating the mode of filling up of the post of Principal in private aided oriental college. Consequently respondent No.4 could not have been transferred as Principal to respondent No.3 – College. Consequently, the order of transfer in proceedings Rc.No.270/PC.II-4/94 dated 10.03.1995 is quashed.” This decision has no application to the present facts of the case. 11. The learned counsel for the petitioner also relied upon a decision of this Court in K. Nirmala v. Government of Andhra Pradesh[5], wherein it is held thus: “From this it is crystal clear that the educational institution maintained by each educational agency/private institutions are treated as different and distinct institutions and they have nothing in common. In fact, while applying permission to establish an education institution, the educational agency is expected to send a copy of the bye-laws of the Society/Trust, whereunder the aims and objectives for which the institution is established are enumerated. It is also not in doubt that each educational agency may come forward to establish an educational institution with different aims and for achieving different objectives. Further Section 83 of the Act clearly deals with the retrenchment of the employees by a management what all is needed under this Section is that the management has to satisfy the competent authority that because of the changed circumstances, the retrenchment of the employee is unavoidable. The statute did not provide accommodation of the retrenched employees of one private educational institution in another educational institution maintained by another educational agency. When the statute itself did not envisages the absorption of a retrenched employee of one educational agency to another educational agency, to my mind, it appears that the Legislature did not chose to make such a provision in the statute deliberately not to give any scope for litigation between the private educational agencies on one hand and the teaching staff on the other hand. When the statute do not provide such a contingency, the respondents cannot contend that in exercise of the power of superintendence vested in the 2nd respondent, he can issue any proceedings as he likes at his whims and fancies. In fact, a reading of Section 3 makes it abundantly clear that the Director and other officers appointed by the Government are expected to exercise only those powers conferred on them and perform the duties entrusted to each of them by or under the Act. When the statute itself does not contemplate accommodation of a retrenched employee of one educational institution by another educational institution, the question of issuing orders in exercise of powers of superintendence by the 2nd respondent does not arise. Further a delegate cannot have more powers than the delegate himself.” This decision also has no application, in view of the fact that the transfer of the petitioner therein was made so as to absorb another person in the place of the petitioner therein. 12. Learned counsel for the petitioner also relied upon a decision of the Honourable Supreme Court in M/s.Kundan Sugar Mills v. Ziyauddin[6], wherein it is held thus: “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 be transferred 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.” In this case, both the institutions are covered by the by - laws of the Society, wherein the Secretary was given powers to have control over the Teachers. Therefore, the above decision also has no application to the present facts of the case. 13. As per by - law No.D of respondent No.2, the Secretary shall be the Executive Officer of the Society and shall have control over the employees of the Society. Therefore, when a Secretary of one institution has control over another institution, which is being run by the same Society, he could effect transfer of an employee from one institution to other institution under the control of same Society. But the grievance of the petitioner is that by virtue of promotion to the Principal post she has to be paid the scale attached to that post and that she cannot be directed to mobilise students for the purpose of admissions into the College. If the petitioner is transferred and promoted to the post of a Principal, whatever are the duties and functions of a Principal, the petitioner has to discharge those duties and functions, according to the by - laws of the Society and furthermore, she is also entitled to the scale of pay attached to that post. Therefore, the impugned order needs no interference. 14. Therefore, the Writ Petition is disposed of making it clear that the petitioner is entitled to the pay scale attached to the post of Principal and that she has to discharge such of the functions and duties of a Principal in the transferred college according to the by-laws of the Society. There shall be no order as to costs. _______________ K.C. BHANU, J August 02, 2011 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE SECOND DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU WRIT PETITION No.15288 OF 2011 Between: V.D.M.L. Kalyani .....PETITIONER AND Sri Venkateswara Vidya Peeth and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU WRIT PETITION No.15288 OF 2011 August 02, 2011 MD [1] AIR 1990 AP 171 [2] 2005 AIR SCW 2985 [3] AIR 1969 SC 1306 [4] 1996 (3) ALT 567 (D.B.) [5] 1997 (6) ALD 488 [6] AIR 1960 SC 650