Dr. K. Venkat Reddy vs The English And Foreign Languages University & Anr.

The contention of the petitioner is that the impugned transfer was not a mere routine transfer but, in substance, a permanent relocation of the petitioner along with his post from Hyderabad to Shillong and to a Department having a different area of specialization, notwithstanding that he was selected for his specific expertise in Training and Development. The University has not demonstrated any legally sustainable administrative necessity warranting such relocation/transfer.

The petitioner further submits that the transfer was effected without prior notice, consultation or opportunity and without consideration of the peculiar circumstances of his case, including his long and unblemished service, specialised academic responsibilities, ongoing supervision of research scholars and the serious medical difficulties placed before the University. The petitioner had also made representations seeking reconsideration, which were not taken into consideration by the respondents.

Accordingly, the petitioner filed W.P.No.4773 of 2021 before this Court, ventilating his grievance against his transfer from Hyderabad Campus to Shillong Campus along with his post contending that the said transfer would result in his permanent relocation to the Department of Education, where he has no requisite expertise or specialization. However, this Court, vide its order dated 04.08.2023 disposed of the said writ petition holding that though the petitioner was initially appointed as a Reader in 2006, he was subsequently promoted as Professor with effect from 10.07.2017 under the new Regulations and therefore, could not rely upon the erstwhile Regulations to contend that Regulation 17(k) was inapplicable to him. The Court accordingly held that Regulation 17(k) empowered the Vice-Chancellor to transfer the petitioner from one place to another. However, having regard to the petitioner's health condition and his status as a single parent, the Court directed the University to reconsider his request for transfer from Shillong to Hyderabad on medical grounds. Pursuant to the order of the learned Single Judge in W.P.No.4773 of 2021, the petitioner submitted a representation dated 08.09.2023 seeking his transfer back to Hyderabad. Pursuant to the above orders the Executive Council considered and examined the representation dated 08.09.2023 of the petitioner seeking transfer from the Regional Campus, EFL University, Shillong to EFL University, Hyderabad and vide Memorandum No.EFLU/Admn/F.1772/2023/771, dated 07.11.2023 rejected the said representation holding that the request for transfer could not be acceded to and was not feasible on administrative grounds. The petitioner submits that the impugned rejection fails to adequately consider the statutory protections available to him, as well as his medical and family circumstances, which warrant reconsideration of the matter.

The petitioner subsequently filed WA No.1136 of 2023 challenging the orders of the learned Single Judge in WP No.4773 of 2021, which was subsequently withdrawn. The Hon'ble Division Bench of this Court, while disposing of the said writ appeal, observed that the petitioner would challenge the rejection order dated 07.11.2023 and that the petitioner is at liberty to challenge the competency of the University in transferring him before the appropriate forum.

The petitioner further submits that the impugned action is without jurisdiction, contrary to the statutory saving provision, contrary to the governing CIEFL By-laws, arbitrary and violative of Articles 14 and 21 of the Constitution and was made without application of mind. The respondents under the guise of administrative exigency cannot exercise a power which they do not possess or defeat the statutory protection attached to the petitioner's pre-existing service conditions.

Accordingly, the petitioner seeks to set aside the transfer/relocation order dated 19.02.2021 and the consequential rejection memorandum dated 07.11.2023 and a consequential direction to restore/retransfer him to the EFL University, Hyderabad Campus, together with consequential service benefits.

Learned counsel submits that the respondents have not demonstrated any legally sustainable administrative exigency warranting such relocation and that the expression “administrative exigency” cannot confer a power which is otherwise not vested in the authority. Learned counsel further submits that the consequential rejection of the petitioner’s representation is vitiated by non-application of mind, particularly when the specific issue relating to the competence of the University to effect the inter-campus transfer was raised before the respondents. It is also submitted that the Hon’ble Division Bench, while permitting withdrawal of the earlier writ appeal, had left it open to the petitioner to question the competency of the University to transfer him from Hyderabad to Shillong. An administrative or statutory authority is required to reconsider a matter pursuant to a judicial direction and it must apply its mind to the relevant facts and circumstances and take a reasoned decision. A mere rejection on the premise of "administrative grounds", without disclosing the specific reasons or circumstances warranting such rejection, would not demonstrate proper application of mind, particularly where the Court has specifically directed reconsideration of the request. It is, therefore, submitted that the general proposition that transfer is common and inevitable in the service has no application where the very source and extent of the power to transfer are under challenge. Learned counsel accordingly submits that the impugned action, being without authority of law and contrary to the statutory protection available to the petitioner, is liable to be interfered with in exercise of the jurisdiction under Article 226 of the Constitution of India.

The learned counsel for the petitioner relied upon the decision of the Hon'ble Apex Court rendered in Prof.V.S.S.Sastry Vs. Ministry of Human Resource Development, Government of India, New Delhi and others^{11.2008 SCC OnLine AP 128}.

Learned Senior Counsel further submits that the petitioner, having subsequently been promoted as Professor under the University Regulations, cannot selectively rely upon the erstwhile CIEFL By-laws so as to claim immunity from the service regime governing the employees of the EFL University. The transfer from Hyderabad to Shillong is only an inter-campus transfer within the same University and does not result in any change of employer, post, pay, seniority, tenure or other substantive service benefits of the petitioner. The order merely alters the place of posting and does not affect any accrued or substantive service right of the petitioner.

It is further submitted that the protection afforded under Section 4(v) of the EFL University Act, 2006 to the existing service conditions of the employees is subject to the provisions of the said Act. Such saving provision cannot be construed as creating an absolute bar against transfer or as overriding the statutory and regulatory powers vested in the Vice-Chancellor. Section 4(v) and Regulation 17(k) are required to be read harmoniously, so that the petitioner's accrued service benefits remain protected, while the administrative power to determine the place of posting, in accordance with the exigencies of service, continues to operate.

It is also submitted that the transfer was necessitated by administrative requirements at the Shillong Campus, where the petitioner's experience and expertise were considered relevant to the academic and administrative needs of the University. Appropriate arrangements were made in respect of his responsibilities at Hyderabad. However, despite the transfer order, the petitioner did not report at Shillong and remained absent without authorisation, which lead to initiation of disciplinary proceedings. It is further submitted that the personal and medical circumstances relied upon by the petitioner were duly considered, but the material available in the service and leave records did not substantiate the extent of the difficulties pleaded by him. His request for re-transfer to Hyderabad was also considered by the competent authority/Executive Council and was declined on administrative grounds.

Learned senior counsel further submitted that the petitioner has no vested right to remain posted at Hyderabad, as neither his original appointment nor the applicable service conditions stipulated any permanent place of posting. Regulation 17(k) expressly empowers the Vice-Chancellor to transfer an employee from one place to another and the Coordinate Bench has already upheld the University's competence to transfer the petitioner, observing that his subsequent promotion as Professor was governed by the EFLU Rules and Regulations. The transfer from Hyderabad to Shillong was therefore within the University's administrative authority and cannot be interfered with in the absence of any statutory or contractual prohibition or any demonstrated arbitrariness.

Learned senior counsel further submits that there is neither any allegation nor any material on record to establish mala fides, incompetence on the part of the competent authority, violation of any statutory provision, or alteration of the petitioner's substantive service conditions. The decision regarding the suitable place of posting falls essentially within the administrative domain of the University and absence of any demonstrated illegality, arbitrariness, mala fides or violation of statutory or constitutional rights, does not warrant interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The petitioner cannot seek judicial interference merely on the basis of personal preference or dissatisfaction with the place of posting. It is, therefore, submitted that the impugned transfer order and the subsequent decision of the University are neither illegal nor arbitrary and that the writ petition is liable to be dismissed.

Learned senior counsel, appeared for the respondents, relied upon the following decisions :

South India Corporation (P) Ltd., Vs. Secretary, Board of Revenue Trivandrum and another^{22.1953 SCC OnLine SC 19}.

Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram^{33.(1986) 4 Supreme Court Cases 447}.

Union of India and others Vs. S.L.Abbas^{44.(1993) 4 Supreme Court Cases 357}.

State of U.P. and others Vs. Gobardhan Lal^{55.(2004) 11 SCC 402}.

Gujarat Electricity Board and another Vs. Atmaram Sungomal Poshani^{66.(1989) 2 SCC 602}.

Shilpi Bose (Mrs.) and others Vs. State of Bihar and others^{77.1991 Supp.(2) SCC 656}.

State Bank of India Vs. Anjan Sanyal and others^{88.(2001) 5 SCC 508}.

Public Services Tribunal Bar Association Vs. State of U.P. and another^{99.(2003) 4 SCC 104}.

Jawaharlal Nehru University Vs. Dr.K.S.Jawatkar and others^{1010.(1989) 1 SCC 679}.

Roshan Lal Tandon Vs. Union of India^{1111.AIR 1967 SC 1889}.

State of J&K Vs. Triloki Nath Khosa and others^{1212.(1974) 1 SCC 19}.

Union of India and another Vs. D.P.Singh and others with Union of India and another Vs. Amit Rai and others^{1313.LPA Nos.726&}.

State of Himachal Pradesh and others Vs. Raj Kumar and others with Anurag Sharma and others Vs. State of Himachal Pradesh and others^{1414.CA Nos.9746 & 9747 of 2011}.

In the present case, the petitioner was appointed under the erstwhile CIEFL prior to the commencement of the EFL University Act, 2006 and therefore the protection, if any, extended to his pre-existing service conditions under Section 4(v) of the Act assumes significance. Therefore, the issue to be determined is whether Regulation 17(k), read in the context of Section 4(v) and the petitioner's pre-existing service conditions, conferred any power on the competent authority to effect the transfer of the petitioner from Hyderabad Campus to Shillong Campus. Administrative exigency, past practice or convenience may furnish the platform for a transfer, but cannot, by themselves, create a power which is otherwise not vested in the authority. At the same time, the petitioner cannot claim an absolute immunity from transfer merely by reason of his initial appointment at Hyderabad. The legality of the impugned action must, therefore, be examined by determining whether the power of transfer existed, whether it validly operated upon the petitioner's service conditions and whether its exercise was consistent with the governing statutory and regulatory framework. Subject to the existence of such power, the assessment of administrative requirements and academic deployment would ordinarily fall within the domain of the University, unless the exercise of power is shown to be arbitrary, without authority, contrary to the governing framework, or vitiated by non-application of mind.

At this juncture it is relevant to extract Regulation 17(k) and Section 4(v) of the EFL University Act, 2006 hereunder :

The Office Order No.CIEFL/Admn./F/272/2006/60, dated 05.07.2006, indicates that pursuant to the recommendation of the Selection Committee made at its meeting held on 16.06.2006 and approved by the Board at its 114^th meeting held on 05.07.2006, the petitioner, Dr.K.Venkat Reddy, was appointed as a Reader in the Centre for Training and Development at the Institute, in the pay scale of Rs.12,000/- – Rs.18,300/-, with an initial pay of Rs.12,000/- per month. The order stipulated that he would be on probation for one year from the date of joining and that his service would be governed by the rules of the Institute.

By proceedings No.EFLU/1307/2015/365, dated 24.07.2015, the petitioner was promoted from Associate Professor to Professor pursuant to the recommendations of the Selection Committee, as approved by the Executive Council at its 20^th meeting held on the same date. The promotion order stipulated that his service would be governed by the University's rules and regulations applicable to teaching employees and the relevant UGC/Government of India regulations and orders concerning the Career Advancement Scheme.

In W.P.No.4773 of 2021, filed by the petitioner challenging his transfer from Hyderabad to Shillong, a Coordinate Bench of this Court, by order dated 04.08.2023, held that the University had the power to transfer the petitioner and that the decision had been taken by the Executive Council on administrative grounds. However, having regard to his medical condition and his responsibilities as a single parent, the Court directed the University to reconsider his request for retransfer to Hyderabad.

Pursuant thereto, the petitioner submitted a representation dated 08.09.2023, citing his history of two surgeries for cervical disc prolapse, partial impairment of his left hand, diabetes and hypertension. The Executive Council, by proceedings No.EFLU/Admn./F.1772/2023/771, dated 07.11.2023, rejected the request on administrative grounds. The proceedings, however, did not specify the particular administrative considerations that guided such a decision.

Thereupon, the petitioner filed W.A.No.1136 of 2023 however, subsequently, he sought permission to withdraw the appeal. By order dated 12.12.2023, the Division Bench of this Court dismissed the appeal as withdrawn, granting liberty to the petitioner to challenge the rejection order and the University's competence to transfer him from Hyderabad to Shillong.

The petitioner thereafter submitted a representation dated 05.02.2024 to the Vice-Chancellor, seeking recall of his transfer. He contended that his original appointment as Reader in the Centre for Training and Development at the erstwhile CIEFL, Hyderabad, was pursuant to Advertisement No.28 of 2003 and that the post was campus-specific and non-transferable. Relying on Section 4(v) of the English and Foreign Languages University Act, 2006, the relevant CIEFL By-laws and the judgment dated 12.03.2008 in W.P.No.10846 of 2007, he claimed protection of his pre-existing service conditions. He also referred to the liberty granted in W.A.No.1136 of 2023 and alleged that the transfer was motivated by personal animosity.

By proceedings dated 04.03.2024, the University rejected the said representation, stating that the legality of the transfer and the alleged non-transferable nature of the post had already been considered in W.P.No.4773 of 2021. It further stated that transfer was an incidence of service, the original appointment order did not restrict the petitioner's posting to Hyderabad and that his subsequent promotion as Professor was governed by the University's applicable regulations. The University also denied that personal malice had motivated the transfer and stated that the petitioner was at liberty to seek appropriate judicial redressal.

The judgment dated 12.03.2008 in W.P.No.10846 of 2007, relied upon by the petitioner, concerns the protection afforded under Section 4(v) of the English and Foreign Languages University Act, 2006, to the tenure and terms and conditions of service of employees of the erstwhile CIEFL, subject to the provisions of the Act. However, that judgment, having arisen in the context of the transitional provisions governing the tenure of the Vice-Chancellor, does not, by itself, establish that the petitioner's post was non-transferable. The petitioner's claim must therefore be examined with reference to his original appointment order, the recruitment notification, the relevant CIEFL By-laws, applicable service rules and the rejection of the petitioner's claim by the University.

It is not in dispute that the petitioner was appointed as a Reader in the Centre for Training and Development of the erstwhile CIEFL, Hyderabad, by order dated 05.07.2006 and that the order stipulated that his service would be governed by the rules of the Institute. Section 4(v) of the Act preserves the tenure and terms and conditions of service of employees of the erstwhile institution, subject to the provisions of the Act. Regulation 17(k), which empowers the Vice-Chancellor to transfer employees, must likewise be read subject to the governing statute and any binding conditions of service. Though transfer is ordinarily an incidence of service and an employee has no absolute right to remain at a particular place of posting, this principle does not dispense with the requirement that the transfer must be authorized by law and consistent with applicable statutory protections, while also taking into account any compelling circumstances warranting protection of the employee against such transfer.

The University's administrative requirements may justify a transfer where the power to effect such transfer lawfully exists. However, administrative exigency cannot independently confer a power that is otherwise unavailable or override an applicable statutory restriction. The earlier order dated 04.08.2023 in W.P.No.4773 of 2021 and the subsequent order dated 12.12.2023 in W.A.No.1136 of 2023 must also be kept in view. The present challenge must be examined within the scope of the liberty granted by the Division Bench, without reopening any issue that has attained finality under the earlier judicial order.

As regards the rejection of the petitioner's representation dated 08.09.2023, the Executive Council rejected his request for retransfer by proceedings dated 07.11.2023 stating that the request was not feasible on administrative grounds. While the assessment of administrative requirements ordinarily falls within the University's domain, the authority was required to undertake a genuine reconsideration of the petitioner's request in the light of the earlier judicial direction, which specifically referred to his medical condition and family circumstances.

The absence of specific administrative reasons in the rejection proceedings raises a question as to whether the petitioner's representation was meaningfully reconsidered. His medical condition and responsibilities as a single parent were relevant factors, though they did not confer an automatic right to retransfer. However, the reasoning underlying the rejection of the petitioners' request on medical grounds does not appear to be reasonable. Nor can the rejection be justified merely on the grounds that the petitioner had not availed of medical leave or had submitted claims for relatively small amounts, particularly when prolonged sickness was not pleaded. The decision ought to have been based on relevant material and a proper assessment of the circumstances placed before the competent authority. Further, the absence of medical leave or the relatively low amounts claimed towards medical reimbursement could not, by themselves, establish that the petitioner was not suffering from chronic ailments. His medical condition was required to be assessed on the basis of the relevant medical records and other material.

The adequacy of the reasons must, however, be assessed with reference to the complete record, including the materials considered by the Executive Council. The legality of the original transfer order dated 19.02.2021 and the validity of the subsequent rejection proceedings dated 07.11.2023 are separate issues. The former concerns the source and extent of the University's power to transfer the petitioner, while the latter concerns compliance with the earlier judicial direction and the fairness of the decision-making process. The former must be tested against the governing statute and applicable service conditions, while the latter must satisfy the requirements of lawful, fair and reasoned administrative decision-making. In that view of the matter, when the rejection of the petitioner's request is examined, it is apparent that authorities did not give mindful consideration to the grievance of the petitioner.

In the above circumstances, since the competent authority's proceedings dated 07.11.2023 do not demonstrate meaningful reconsideration of the petitioner's medical condition and family circumstances, or compliance with the earlier judicial directions, the rejection order warrants reconsideration. Accordingly, the University authorities are directed to reconsider the petitioner's representation and pass a reasoned order after examining the relevant medical records, family circumstances and administrative requirements strictly in accordance with law within 90 working days from the date of receipt of a copy of this order.