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Judgment
V. Jagannathan, J.—These two appeals are by the defendants in the trial court in the suit filed by the respective plaintiffs who questioned the order of transfer passed by the 1st defendant and I.A. 2 filed by the respective plaintiffs seeking an order of temporary injunction restraining the defendants from interfering with the functioning of the respective principals (plaintiff in respective suits) was allowed by the trial court by its common order on I.A.2. The defendants were restrained from interfering with the functioning of the respective plaintiffs as the principal of Bishop Cotton Boys'' School and Bishop Cotton Girls'' School respectively. The defendants therefore call in question the said common order in these two appeals and in view of the common grounds urged and common order being passed by the trial court, these two appeals are also disposed of by this common judgment.
Col. John Ellis was appointed as the Principal of Bishop Cotton Boys'' School, Bangalore by an appointment order dated 26.5.2006. Likewise, Princess Franklyn was appointed as the Principal of Bishop Sargant School, Tumkur by appointment order dated 3.5 03, but was transferred as Principal to the Bishop Cotton Girls'' School, Bangalore by transfer order dated 16.4.2005. Both the aforementioned Principals were transferred by order dated 7.5.2010. Col. John Ellis was transferred to Cathedral High School, Bangalore and Princess Franklyn was transferred to St. John''s High School, Bangalore. The said transfer orders were the basis for the respective suits being filed by the aforementioned Principals. The Principals in their suit sought for the relief of declaring the transfer order dated 7.5.2010 as illegal, void, unauthorised and further prayer in the suit was to declare the resolution/meeting held on 7.5.2010 as unauthorised and being in contravention of the bye-law and Constitution of the respective schools and also for perpetual injunction restraining the defendants from interfering with the functioning of the plaintiffs as the Principals of the respective schools.
I.A. 2 was filed by the respective Principals for an order of temporary injunction as mentioned earlier and the trial court allowed the said I.A giving rise to these two appeals by the 1st defendant.
Before referring to the submissions made by the learned Counsel for the parties, it is also necessary to mention that the 2nd defendant is a Constitution Unit of Church of South India (CSI) and the 2nd defendant i.e. Karnataka Central Diocese (KCD) has an independent Constitution and bye-laws and the said KCD is a body responsible for governing the administration of Karnataka Central Diocese of South India. The Executive Committee of KCD is the highest policy making body and under its umbrella there are several schools and each school also has its Constitution and bye-laws.
As per the Constitution and the bye-laws of Bishop Cotton Girls'' School, the control and management of the institution vests with the Executive Committee of KCD of Church of South India. However, the institution is administered by the Board of Management under the general policies laid down by the Executive Committee of the Diocese. It is with this backdrop, we will have to appreciate the argument addressed by the learned Counsel for the parties.
The basis for the suit as well as the application filed by the respective Principals viz., I.A. 2 lies in the transfer order dated 7.5.2010. Learned senior counsel Smt. Nalini Chidambaram appearing for the appellants i.e. defendant No. 1 referring to the transfer of the Principal of Bishop Cotton Girls'' School, at the outset, submitted that the trial court erred in relying on the Constitution and the bye-laws of the Bishop Cotton Girls'' School, but it lost sight of the Constitution bye-laws of KCD and the latter Constitution empowers the Executive Committee to transfer the Heads of all institutions and therefore the trial court could not have lost sight of the said bye-law which is to be found in Chapter II (IV)(6). It is argued in this context that the power to appoint heads of all Diocesan institutions within its own jurisdiction and, have final authority in matters of confirmation of service, transfer, discipline, dismissal, termination and suspension of such appointees and as such, the transfer of the Principal of Bishop Cotton Girls'' School is well within the powers of KCD headed by the Executive Committee which is the 3rd appellant in these appeals. It is also submitted that, in the course of its entire order, the trial court did not even make a reference to the Constitution and bye laws of KCD in particular.
As far as the transfer effected is concerned, submission made by the learned senior counsel is that the transfer was effected for administrative reasons and merely because no specific reason was mentioned in the - composite transfer order, it cannot be said that the transfer order is vitiated. Reference was also made to condition No. 11 of the appointment order of the Principal of Bishop Cotton Girls'' School to submit that the said condition makes it clear that the Principal is liable to be transferred. The trial court did not take these materials into account and erred in holding that the Executive Committee of the KCD does not have the power to transfer the Principal. It was also mentioned that the Principal of the Bishop Cotton Girls'' School came on transfer from Tumkur and this itself is sufficient to indicate that the Principals of the respective schools which come under the KCD are also liable to be transferred from one institution to the other.
Another limb of argument by the learned senior counsel is that, in the suit there is no prayer seeking stay of the transfer order and therefore the trial court could not have granted an order of injunction. As the Constitution and the bye-laws of KCD empowers the defendants to transfer the Heads of institutions, the order of transfer cannot be held to be defective.
As far as mala fide in the exercise of the power of transfer is concerned, it is submitted by the learned senior counsel that the trial court also does not deal with the mala fide aspect of the matter in the course of its order. Placing reliance heavily on the school''s bye-laws V(b) is totally erroneous and the trial court ought to have taken into consideration the bye-laws of the KCD which permits the Executive Committee not only to appoint the heads of Diocese institution, but also have the final authority in the matter of confirmation of service, transfer, dismissal, termination and suspension of such appointees. Under the said circumstances, the impugned order of the court below cannot be sustained in law and the plaintiff has failed to make out a prima facie case for grant of injunction in her favour.
Learned senior counsel Sri. S. Nanjunda Reddy for the appellant in the case of transfer of Principal of Bishop Cotton Boys'' School, while reiterating the aforementioned submissions made by the learned senior counsel Smt. Nalini Chidambaram, also contended that, being a minority institution, the institution therefore gets the protection of Article 30 of the Constitution of India and the Kamataka Education Act, 1983 is not made applicable to the educational institutions recognized by the Council of Indian School Certificate Examination like the present institution by virtue of Section 1(iii-a) of the said Act. Apart from this, being a private educational institution and also being a minority educational institution, certain amount of laxity has to be allowed in cases of unaided private schools and the maximum autonomy has to be with the management with regard to administration, including the right of appointment or disciplinary powers etc.,
Learned senior counsel Sri. Reddy also pointed out by referring to the Apex Court decision in the case of T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, that in so far as regulating the facets of administration, in case of an unaided minority educational institution, there should be minimal regulatory measure of control and the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. Therefore it is contended by the learned senior counsel that the transfer order issued in the instant case in respect of the Principal of Bishop Cotton Boys'' School is concerned, the said order cannot be found to be vitiated unless it is shown that the order itself suffers from of lack of jurisdiction or is the result of a mala fide intention or mala fide exercise of power by the Management. Unless either of the two requirements is satisfied, the order of transfer cannot be interfered with.
In support of the above submission, learned senior counsel placed reliance on the decisions reported in Union of India and Others Vs. S.L. Abbas, , Hindustan Petroleum Corporation Ltd. Vs. Sri Sriman Narayan and Another, .
As far as the amendment brought into force from 1.1.2006 is concerned, referring to the said amendment which gave the Executive Committee to transfer the Heads of institutions, it is argued that, as on the date of the transfer order, the amendment had already come into force and secondly even in the order of appointment issued to the Principal, there is a condition that the Principal is also liable to be transferred. Under these circumstances, the question of amendment having no application to the instant case, does not arise.
As far as the ground of mala fide taken up by the Principal concerned in the suit, it is argued that it is a matter of trial and only when the plaintiff is able to establish by placing proper material as to the mala fide exercise of power by the Executive Committee headed by the 1st appellant, the question of considering the ground of mala fide act on the part of the appellant does arise and the plaintiff, if he succeeds in establishing the ground of mala tide intention on the part of the appellant, in that event, the plaintiff can always be compensated by the trial court by awarding damages, but at the stage of hearing the I.A for grant of injunction, the trial court ought to have seen whether there existed a prima facie case in favour of the plaintiff when the transfer order has been passed by the appellant, who is also a Chairman of the Executive Committee and the said transfer being in accordance with the bye-laws of KCD, the question of there being no power to transfer the Principal, does not arise.
As far as the balance of convenience is concerned, it is argued by the learned senior counsel that the trial court ought to have seen that the balance of convenience lies in favour of the Management rather than the plaintiff, in as much as the plaintiff was transferred from one institution to another institution in Bangalore and as such, the said transfer was effected much prior to the commencement of the academic year and if such an order is not given effect to, the institution would be put to loss, inconvenience rather than the plaintiff.
In the light of the aforementioned submission and the decision referred to, learned senior counsel sought for setting aside the impugned order of the trial court. Learned senior counsel also referred in the course of his argument to the Minutes of Meeting held on 7.5.2010 to submit that the decision to transfer the Heads of institutions was taken by the Executive Committee which comprises of 26 persons and the said decision was not unilateral decision of the 1st appellant herein.
Sri. Isaac Mohan Lal arguing in MFA 3901/10 which concerns the transfer of the Principal from Bishop Cotton Girls'' School, supported the order of the trial court and contended that the Constitution and bye-laws of Bishop Cotton Girls'' School does not provide for the Executive Committee of the KCD to transfer the Principal and in this connection he drew my attention to the bye-Laws 5(2). It is then submitted that the appointment was in the year 2005, whereas the amendment was given effect from 1.1.06 and therefore the question of the Principal of the Bishop Cotton Girls'' School being liable to be transferred and such a power being vested with the Executive Committee of the KCD, therefore does not arise. As such, the Executive Committee lacks any jurisdiction to transfer the Principal of Bishop Cotton Girls'' School.
The second submission made is that the order of transfer is the result of mala fide in exercise of power by the 1st appellant. In this connection learned Counsel contended that one Mrs. Lydia Joshua who has now been transferred as Principal of the Bishop Cotton Girls'' School in place of the plaintiff Princess Franklyn, happens to be the cousin of the 1st appellant and though the said Lydia Joshua was not selected at the first instance, now by virtue of the present order, the said Lydia Joshua has been given entry into Bishop Cotton Girls'' School This shall also be read in the context of a complaint being filed against the 1st appellant and it is the said complaint and the consequent events that prompted the 1st appellant to transfer the plaintiff Princess Franklyn to another school.
Further submission made is that a demand was made by the 1st appellant Bishop to transfer Rs. 5 lakhs to the personal account of the Bishop and as the Principal did not agree to the said demand, the order of transfer has been passed. As far as the Executive Committee of the KCD is concerned, it is argued that it is not the right authority to transfer the Heads of institutions, but it is only the final authority and as such for this reason also, the order of transfer cannot be sustained in law.
Yet, another submission made by the learned Counsel Sri Isaac Mohanlal is that, there never has been an instance of the Principal of Bishop Cotton Girls'' School being transferred without completing the entire service and most of the Principals who headed the Bishop Cotton Girls'' School retired in the said post while serving in Bishop Cotton Girls'' School and for this, there is a record of 130 years. Therefore, the question of the Principal of Bishop Cotton Girls'' School being transferred is inconceivable under these circumstances. In support of these submissions, learned Counsel appearing for the Principal of the Bishop Cotton Girls'' School placed reliance on the decisions reported in AIR 1999 S.C.C. 565 (1999) 7 S.C.C. 1, 1998 (3) M.L.J. 595, (2004) 12 S.C.C. 0299, (2009) 2 S.C.C. 592, (2010) 2 S.C.C. 225.
As far as the matter being referred to arbitration is concerned, learned Counsel Sri. Isaac Mohanlal contended that the present case is not the one which can be brought within the ambit of specified case as can be found in the said arbitration clause and transfer is not one such item which can be brought within the folder of said expression and as such, question of the matter being referred to arbitration also does not arise. Hence, learned Counsel sought for affirming the order of the trial court.
Sri. G. Sukumaran, learned Counsel appearing for the Principal of Bishop Cotton Boys'' School, while adopting the submission made by the learned Counsel Sri. Isaac Mohanlal, in so far as the interpretation of the bye-laws of the school and that of the KCD, contended that the order of transfer is nothing but an exercise of mala fide intention on the part of the 1st appellant. The transfer order itself has been signed by the Bishop who is the 1st defendant and it is not signed by the Chairman of the KCD Executive Committee. Therefore, the impugned order of transfer is illegal.
Referring to the reasons assigned by the learned trial Judge, it is submitted that the learned trial Judge was right in holding that there is no bye-laws to transfer the Principal from one school to another and referring to the minutes of the KCD held on 11.5.2007, it is argued that the Members of the Executive Committee have not decided on the question of transfer of the Heads of institutions, but only indicated that there shall be a clear policy for transfer of Heads of institutions.
Another submission made is that the consent of the Heads of institutions also will have to be obtained before effecting the transfer and for this reason also, the order of transfer cannot be sustained in law. Yet, another submission made by the learned Counsel Sri. Sukumaran for the plaintiff i.e. the Principal of Bishop Cotton Boys'' School is that a plain reading of the bye laws of KCD and in particular bye-laws 24 to 28 go to show that the Executive Committee can only act as an appellate authority and it will have to take a decision only after being satisfied from the opinion given to it by the Board. Therefore, the order of transfer suffers from this defect as well. Referring to condition No. 11 of the appointment order of the Principal Col. John Ellis, it is contended that the said condition provides that the Principal shall retire on completion of 60 years as per the rules prevailing in the Diocese for. Heads of the unaided institutions.
Relying on the Apex Court decision reported in M/s. Sundaram Finance Ltd. Vs. M/s. NEPC India Ltd., , learned Counsel argued that the existence of arbitration clause does not preclude the Civil Court from dealing with the matter and therefore the question of the matter being referred to arbitration does not arise as Civil Court has got jurisdiction to entertain u/s 9 an application for interim measure. Therefore, relying on many decisions referred to by the learned Counsel Sri. Isaac Mohanlal, it is argued by Sri. Sukumaran that the order of the trial court does not call for interference.
In the light of the aforesaid submissions made by the learned Counsel for the parties and the decisions referred to by them, the only point for consideration is whether the appellants have made out a case for this Court to interfere with the impugned order the trial court.
It is the transfer order dated 7.5.2010 that set in motion the suit being filed by the two Principals of the respective schools viz., Bishop Cotton Boys School and Bishop Cotton Girls School, and the interim order of the trial court is also passed allowing IA No. 2 filed by the respective Principals seeking an order of temporary injunction restraining the appellants from preventing the them from functioning in their respective schools. It is a well settled law that an order of transfer is an incident of service. The Apex Court has laid down certain principles while considering the cases in which an order of transfer was called in question. It would be proper to keep in view the principles laid down by the Apex Court and from the decisions cited by the learned Counsel for both the parties, the following position in law becomes clear.
In Union of India and Others Vs. S.L. Abbas, , dealing with a case of transfer, the Apex Court laid down the following principle:
An order of transfer is an incident of Government service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot Interfere with it.
An order of transfer of an employee is a part of his service conditions and such order of transfer is not required to be interfered with lightly by a court of law in exercise of its discretion any jurisdiction, unless the court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the Order. This is the proposition of law laid down in the case of State Bank of India Vs. Anjan Sanyal and Others, .
Dealing with a case where malice is alleged in the act of transfer, the Apex Court, in the case of M. Sankaranarayanan, IAS Vs. State of Karnataka and others, , has held that the inference of mala fides cannot be drawn from mere differences of opinion between the officer transferred and the authority transferring and further, it was held that it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established but, such an inference must be drawn or based on factual matrix and such factual matrix cannot remain in the realm of insinuations, conjectures and surmises.
In Kendriya Vidyalaya Sangathan Vs. Damodar Prasad Pandey and Others, , the Apex Court has observed that, in the absence of arbitrariness, mala fides or violation of any operative guidelines or rules, court''s interference with order of transfer is not called for.
In the case of Somesh Tiwari Vs. Union of India (UOI) and Others, , referred to by learned Counsel Shri Isaac Mohanlal, the Apex Court has held that an order of transfer is an administrative order and transfer, which is ordinarily an incident of service, should not be interfered with, save in cases where inter alia mala fides on the part of the authority is proved and mala fides are of two kinds first, malice in fact and second, malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane to passing of an order of transfer and based on an irrelevant ground i.e., on the allegations made against the appellant in an anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of, or in lieu of punishment. When the order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. No vigilance enquiry was initiated against appellant. Transfer order was passed on material which was non-existent. The order suffers not only from non-application of mind but also suffers from malice in law.
It is, therefore, clear that transfer is an incident of service and cannot be interfered with by courts unless two of the factors indicated above are brought into picture and established by the aggrieved person.
As far as grant of injunction is concerned, the law is well settled and in the case of Hindustan Petroleum Corporation Ltd. Vs. Sri Sriman Narayan and Another, , the Apex Court held that, grant of an interlocutory injunction during the pendency of die legal proceedings is a matter requiring the exercise of discretion and the court normally applies the following tests:
(i) whether the plaintiff has a prima facie case;
(ii) whether the balance of convenience is in favour of the plaintiff; and
(iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed.
35, Therefore, the plaintiff seeking an order of temporary injunction will have to establish a prima facie case in his/her favour and if no prima facie case is made out, it would not be necessary for the court to consider the other factors like balance of convenience, hardship, etc.
Keeping the above parameters of law in view, we will have to see whether the impugned order of the trial court granting injunction can be held to be sustainable in law in the light of the material placed by the respective parties.
The Principal of the Bishop Cotton Girls School viz, Mrs. Princess Franklyn, was appointed as the Principal of Bishop Sargant School, Tumkur, by appointment order dated 3.5.2003. Among the terms and conditions of the appointment order, condition No. 11 will have to be taken note of and it reads as under;
You are liable for transfer to another school of similar coming under the control of the Karnataka Central Diocese, if the need arises.
In respect of the other Principal Col. John Ellis, the appointment order was issued on 26.5.2006 and he was appointed as the Principal of Bishop Cotton Boys School, Bangalore, and among the 12 terms and conditions, condition No. 12 is as under:
You are liable for transfer to another school of similar coming under the control of ''he Karnataka Central Diocese, if the need arises.
The main contention urged before the trial court by the respective Principals and also contended by the learned Counsel appearing for the respective plaintiffs in these appeals is that the Executive Committee of the KCD has no power to transfer the Principals of the institutions. The trial court laid much emphasis on bye-law V(2) of the Constitution and Bye-laws of the Bishop Cotton Girls School and the similar one in respect of Boys School and the said bye-laws provide that the control and management of the Institution shall be vested with the Executive Committee of the Karnataka Central Diocese of the Church of South India and the institution shall be administered by the Board of Management under the general policies laid down by the Executive Committee of the Diocese, and in particular, the Diocesan Executive Committee shall have the power among others to have the power to confirm, suspend, terminate the services of the Principal. It is this bye-law that was taken into consideration by the trial court while accepting the contention put forward on behalf of the respective plaintiffs that the ''Executive Committee of the KCD has no power to transfer the heads of the institution.
The trial court did not bestow its attention to the Constitution and the Bye-laws of the KCD which provides under Chapter II(iv)(6) thus:
Appoint heads of all Diocesan institutions within its own jurisdiction and have final authority in matters of confirmation of service, transfer, discipline, dismissal, termination and suspension of such appointees.
This particular bye-law, therefore, makes it clear that the Executive Committee of the KCD is the final authority in the matters of confirmation of service, transfer, discipline, dismissal, termination and suspension of such appointees. Therefore, the power to transfer heads of all Diocesan institutions vests with the Executive Committee in view of the aforesaid bye law of the KCD. The trial court did not look into this particular bye-law that was placed for consideration but, instead, rested its conclusion only on the Constitution and the Bye-laws of the schools concerned.
Apart from this, as far as Bye-law 24 of the Bye-laws of the KCD is concerned, though this bye-law was referred to by the learned Counsel appearing for the respondents-plaintiffs, the said bye-law only provides that the Executive Committee shall be an appellate authority on all appeals on the decision taken by the Board of Management of the Institutions in relation to staff matters. In other words, it is only in respect of the decision taken by the Board of Management of die particular institution that the Executive Committee of the KCD functions as an appellate authority but, however, insofar as transfer is concerned, it is governed by Bye-law (IV)(6) of the Constitution and Bye-laws of the KCD. The learned trial judge lost sight of this material placed by the appellants.
Notwithstanding the aforesaid power conferred on the Executive Committee of the KCD by the Constitution and Bye-laws of the KCD, It is also very relevant to mention that, in the appointment orders issued to the respective Principals, it has been clearly indicated that the Principals will also be liable for transfer to another school coming under the control of the KCD, if need arises. The trial court has made a mountain of a mole by stressing on the expression "if need arises" and, in the course of its order has gone on to observe that in the transfer orders, no such need for transfer has been mentioned and, therefore, this is also one of the factors that led the trial court to allow I.A. No. 2.
The said reasoning of the trial court cannot be accepted as having any rational basis. Since the institution is a religious minority institution, protection of Article 30 is guaranteed to such an institution and the Apex Court, in the case of N. Ammad Vs. The Manager, Emjay High School and Others, while dealing with a case of appointment of headmaster, has held that so far as the right of management of minority aided school is concerned, the right guaranteed under Article 30(1) of the Constitution is a right that is absolute and any law or executive direction which infringes the substance of that right is void to the extent of infringement. The Apex Court went on to hold in the said case that, if the management of the school is not given very wide freedom to choose the personnel for holding such a key post, the right to administer the school would get much diminished and hence, it is for the management of the minority educational institution to choose the modality for selecting the qualified persons for appointment.
The Apex Court, in the case of T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, , while dealing with the case of unaided private schools, has observed at paragraph-61 of its judgment that, in the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. In the very same decision, while answering the questions, referring to question No. 5(c), the Apex Court made the following observations:
Q. 5. (c). Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/with drawl thereof, and appointment of staff, employees, teachers and principles including their service conditions and regulation of fees etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like appointment of staff, teaching and non-teaching and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of such employees who are subjected to punishment or termination from service, a mechanism will have to be evolved and in our opinion, appropriate tribunals could be constituted, and till then, such tribunal could be presided over by a judicial officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualifications, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of an educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with overall administrative control of management over the staff, government/university representative can be associated with the Selection Committee and the guidelines for selection can be laid down. In regard to unaided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare of teachers could be framed.
There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not resorted to.
The extent of regulations will not be the same for aided and unaided institutions.
Therefore, when the Executive Committee of the KCD takes the decision to transfer not only the respective plaintiffs but several others along with them as could be seen from the transfer order, it Is not for the courts to sit in judgment over the facets of administration and the management should have the freedom and there should not be any external controlling agency. Therefore, when the management decides to transfer several persons by issuing composite transfer order, it is needless to say that a need must have arisen for the Executive Committee to take such a decision.
The trial court, unfortunately, went off in a tangent and, ignoring the Constitution and the Bye-laws of the KCD and the powers conferred on the KCD, only took note of the Constitution and Bye-laws of the schools concerned and committed serious error in holding that the plaintiffs have made out a prima facie case. At the cost of repetition, it has to be mentioned that not only the Executive Committee has got the authority to transfer the heads of the institutions but, even in the very appointment orders issued to the respective plaintiffs, there is a condition that they will also be liable for transfer. In the face of such material, even if the amendment is said to have come into force on 1.1.2006, that only goes to goes to reinforce the power of the Executive Committee of the KCD to transfer the Principals from one institution to the other institution. Therefore, the contention of the learned Counsel for the respondents that the amendment came into force only in 2006 and that the appointment orders were issued much prior to that date pales into insignificance. Even looked from another angle, the amendment was in force as on the date of transfer. Under these circumstances, the reasoning of the trial court cannot but be termed as unreasonable and capricious.
Insofar the contention put forward by the learned Counsel for the respondents that in the history of the Bishop Cotton Schools, both ''girls'' and ''boys'', there has never been an instance of the Principal of the respective school being transferred and that all the past Principals retired while functioning as the Principal of the Bishop Cotton Boys'' and Girls'' Schools respectively, is concerned, when the Executive Committee decides that even the heads of the institutions will have to be transferred and to that effect, the decision is also taken by all the 26 members of the Executive Committee when they met on 7.5.2010. with a lone member dissenting, and when in the very appointment orders it is mentioned that the respective Principals are liable to be transferred and when transfer itself is an incident of service, the question of the Executive Committee not having the power to transfer the Principals of any of the institutions including that of Bishop Cotton Boys'' School and Bishop Cotton Girls'' School does not arise.
The respondents'' counsel have not been able to place any material before this Court or any bye-law which lays down the rule that the Principals of the Bishop Cotton Boys'' School and Bishop Cotton Girls'' School can never be transferred at all. The contention put forward in this connection by the learned Counsel for the respondents, therefore, will have to be rejected as not having force behind it. In fact, it must be said at this juncture that what is permanent is change and merely because of a longstanding history of the Principals of the respective schools having retired as Principals of the said schools, that itself is not sufficient to hold that the Executive Committee of the KCD does not have the power to transfer the Principals.
As far as the ground of mala fides alleged is concerned, though the learned Counsel for the respondents argued by referring to certain material that the transfer order of the appellants is ill-motivated and is on account of a complaint being lodged against the first appellant herein, the trial court, In the course of its order, has not whispered a word about the transfer order being tainted with mala fides. That apart, the respective Principals have been transferred from one place to another place in Bangalore and if the respective Principals are able to establish in their suits during trial that their transfers were affected because of mala fides, they will be entitled to damages at the hands of the trial court. But, that can only happen only after trial and if the plaintiffs are able to establish that their transfers were affected with mala fide intention.
Insofar the decision upon which the learned Counsel Shri Isaac Mohanlal relies is concerned viz., the Full Bench decision of the High Court of Judicature, Madras, The Correspondent, Malankara Syrian Catholic School Vs. J. Rabinson Jacob and Others, though It was contended by referring to the said decision that the management cannot bring about any change in the contract of service without the consent of the employees and, therefore, the plaintiffs are not liable for transfer, the said decision, in my view, does not come to the aid of the respondents but, on the other hand, the court, at paragraph-28 of its judgment, has observed that, transfer cannot be termed absolutely as an incident of service when it is neither specifically provided for nor prohibited under the rules and regulations or conditions of service applicable to the teachers and others in a private school. In the case before us, not only the appointment order mentions that the Principals are liable to transfer from one institution to the other but, even the Constitution and Bye-laws of the KCD provides for transfer of the heads of the institutions.
In the light of the foregoing reasons, the impugned order of the trial court granting an order of injunction cannot be sustained in law as the materials placed do not make out a prima facie case in favour of the respective plaintiffs. At the same time, balance of convenience, viewed from the angle of the appellants, lies with them.
Before parting, it has to be mentioned that Shri James P. Arun Kumar, who is a member of the Church of South India, and a parent, wanted the court to take note of the I.A. filed for impleading him as one of the respondents. He also made a further submission that the I.A. that was filed by him has not been put up for want of complying with certain objections raised by the office. But, he also hastened to add that he is withdrawing the application itself. In view of the above submission, the question of considering the I.A., which is yet to be put up for want of compliance of the objections, does not arise.
At this stage, learned Counsel Shri G. Sukumaran for the Principal of the Bishop Cotton Boys'' School wanted some time to be given to the said Principal to join the institution to which he has been posted and for this, learned Counsel Shri B.M. Arun for the appellants submits that the Principal is at liberty to join at the earliest, preferably tomorrow i.e., 3.6.2010, as the schools have started functioning.
In the result, both the appeals stand allowed and the impugned order of the trial court on I.A. No. 2 is set aside. It is also made clear that the above observations shall not have any bearing on the merits of the case.