BAPUJI EDUCATION SOCIETY Vs. EDUCATIONAL APPELLATE TRIBUNAL

JUDGEMENT

(1.) these two civij revision petitions arise out of an Order, dated 18-11-1988 passed by the court of the district judge and educational appellate tribunal, tumkur (hereinafter called as the 'tribunal') wherein the management of a private educational institution styled as bapuji education society and an employee by name narasimha murthy, who was an assistant master in the employment of sumathi jain school run under different management have challenged the legality and correctness of the order passed by the tribunal.

(2.) few facts are necessary for proper appreciation of contentions advanced, briefly to state are as follows: bapuji education society registered under the societies Registration Act is running a school by name bapuji high school at tumkur district. One rajanna was serving as assistantmaster in the aforesaid bapuji high school. The subject-matter of controversy relates to mutual transfer of the employees. It is seen from the records that on 17-8-1986, the management of bapuji high school has passed a resolution. The relevant portion of the extract is to the following effect: <IMG>JUDGEMENT_676_KANTLJ4_1992Image1.jpg</IMG> similarly, on 8-8-1986, the managing committee of sumati jain high school where another assistant master by name b.r. narasimha murthy was employed and which is run under the management of another private educational institution styled as "sri swethamber sthanakavasi education society, robertsonpet, k.g.f., kolar district has passed a resolution to the following effect: "ordinary meeting of the managing committee of sumathi jain high school met on 8-8-1986 at the school office. Agenda to consider the transfer of service of Sri B.R. Narasimha murthy, assistant master of this school in Sri Bapuji High school, Tumkur, in place of Sri S. Rajanna, B.sc., B.ed. Members present 1. Sri K. Kanyalalji; 2. Sri C.S. Pannalalji; 3. Sri M. Bhavaralalji; 4. Sri Kisturchandji; 5. Sri Madanlalji; 6. Sri R. Javanthraji. Resolution it is resolved to transfer the services of Sri B.R. Narasimha Murthy, assistant master to Sri Bapuji high school, tumkur as per the provision created in Rule No. 59 of the grant-in-aid code, by posting Sri S. Rajanna, in the place of Sri B.R. Narasimhamurthy. Members signature 1. Sd/-; 2. Sd/-; 3. Sd/-; 4. Sd/-; 5. Sd/-; 6. Sd/-. Sd/- "copy" head master sumathi high school, robertsonpet, k.g.f." subsequently, a letter dated 12-9-1986 has been addressed to the commissioner for public instructions, Karnataka by one Sri C.S. Pannalal on behalf of sumathi jain high school. The contents of which are excerpted below: "to the commissioner for public instructions, in karnataka, Bangalore. Through the deputy director of public instruction, kolar district, kolar. Sub: permission for pre-facto transfer of assistant master of aided high schools. Ref: grant-in-aid code No. 59, of secondary schools, in karnataka. The management of Sri Swethambar Sthanakvasi Education Society, Robertsonpet, K.G.F., Kolar District, and Bapuji Education Society, Tumkur, have resolved to transfer the following assistant masters under grant-in-aid cede No. 59 on the basis of pre-facto transfer orders to be issued by the commissioner for public instructions, karnataka. Sri B.R. Narasimha Murthy, B.sc., (CBZ), B.ed., teaching biology and chemistry working as assistant master, sumathi jain high school, robertsonpet, k.g.f., in place of Sri S. Rajanna, B.sc., (CBZ), B.ed., working as assistant master, bapuji high school, tumkur teaching biology and chemistry to be transferred along with his services to sumathi jain high school, k.g.f. it is further stated that the two assistant masters are working in their institutions of permanent basis and both the high schools are aided. Both the teachers are teaching the same subjects in their schools. Hence there is no financial burden to the government of Karnataka by according permission for pre-facto transfer. In the above circumstances, I request you kindly to accord permission to effect the above transfer under different management on their own pay and grade at the earliest. Yours faith fully, sd/- c.s. pannalal sumathi jain high school, robertsonpet, k.g.f. enclosed: 1. Copy of the appointment approval by the respective ddpi's. 2. Service certificates issued by the respective institutions, 2. Copies of the resolution made by both the managements. 4. Salary certificates of both the assistant masters. 5. Statement of staff pattern. 6. "strength and attendances". On 3-1-1987, directorate of public instructions has communicated its approval on the following lines: <IMG>JUDGEMENT_676_KANTLJ4_1992Image2.jpg</IMG> <IMG>JUDGEMENT_676_KANTLJ4_1992Image3.jpg</IMG> on 5-1-1987, tbc concerned managements have served orders of transfer and as well as orders relieving them from their respective posts. Copy of the order dated 5-1 -1987 issued by bapuji educational society reads as follows: "sumathi jain high school, roberts on pet, k.g.f. 563 112 rcf: No. Sjhs, to No. 96/1986-87, dated 5-1-1987 relieving order sub: transfer of Sri B.R. Narasimhamurthy, assistant maslcr, sumathi jain high school, k.g.f. to bapuji high school, tum-kur, vide-sri rajanna assistant master of that school to sumathi jain school, k.g.f. ref: No. E-7(a) transfer - 7:1986-87, dated 3-1-1987. In accordance with the memo of the joint director of public instruction (secondary education), Bangalore the management of the sumathi jain high school is pleased to relieve Sri B.R. Narasimha Murthy from his duties with effect from afternoon of 5-1-1987. Sd/- hcad master sumathi jain high school, roberlsonpet, k.g.f." it is seen from the records that the directorate of public instructions on the representation made by Sri Rajanna, assistant master attached to Bapuji Educational Society has, on 19-1-1987, withdrawn its approval accorded on 3-1-1987 subject to further instructions and on 30-1-1987, it has directed the bapuji educational institution to take back Sri Rajanna. Meanwhile, the assistant master viz., rajanna preferred an appeal before the jurisdictional educational appellate tribunal, being aggrieved of the order of transfer and challenged the legality, propriety and correctness of the order of transfer. The main grounds of appeal are formulated as hereundcr: 1) order of transfer affected employees conditions of service and the same cannot be imposed on an employee as ascribing to him under the doctrine of implied term of service. 2) the order of transfer as being motivated and not a transfer due to exigencies of administration, public interest, but is actuated by extraneous considerations oblique motives for achieving alien purpose in the garb of ostensible purpose of public interest and administrative exigencies. 3) the order or transfer not only affects the conditions of service but a colourable exorcise, mala fide and no public or administrative exigencies are involved. 4) the approval of directorate of public instructions under Rule 59(ii) of the grant-in-aid code does not ipso facto confer a blanket power to the private educational institutions to effect mutual transfers as against the consent of their employees and that principles of natural Justice having not been complied and the same as having been violated. The management of the private educational institutions have contested the appeal and the main grounds justifying their action may be formulated as hereunder. L)the orders of transfer are in accordance with Rule 59(ii) of the grant-in-aid code. 2) the orders of transfer do not change or affect any conditions of service and the same is done on account of administrative exigencies and in the public interest. 3. The management has inherent right to transfer and the transferability as being one of the implied terms of service. 4) that educational appellate tribunal has no jurisdiction to interfere with administrative instructions and that the order of transfer does not partake the character of an order as contemplated or envisaged under the Provisions of karnalaka private educational institutions (discipline and control) Act, 1975.

(3.) the main question that arises for consideration in these petitions is about the scope and extent of judicial review and the court's power to interfere in the administrative orders affecting the conditions of service of employees of private educational institutions.