K.K. Denesan, J.@mdashIn these two original petitions the petitioners who are members of the teaching staff of private colleges have approached
this Court with rival claims. Since the same question in the same set of facts arises for consideration, they are disposed of together.
2. Petitioner in O.P. No. 34274 of 2001 is aggrieved by the refusal by Kerala University to approve the inter-management/inter-university transfer
granted in his favour by the management based on the sanction accorded by the Director of Collegiate Education.
3. Petitioner in O.P. No. 21649 of 2001 has approached this court opposing the aforesaid inter-management transfer and seeking directions not to
approve that appointment.
4. A perusal of the proceedings issued by the management on 28-5-2001, copy of which is produced and marked as Ext. P5 in both the O.Ps.
would furnish the basic facts forming the foundation of these cases. I therefore extract Ext. P5 in extenso:
Vide the orders read above, the Director of Collegiate Education Trivandrum has issued orders for the Inter-management transfer of Dr. V.S.
Josekumar, Lecturer in Zoology, Christ College, Irinjalakuda (Calicut University) to the Mar Ivanious College Trivandrum (M.S.C. Management
Kerala University).
In the circumstances, Dr. V.S. Josekumar, Lecturer in Zoology, Christ College Irinjalakuda is transferred and posted as such in the St. John''s
College Anchal, an institution under the M.S.C. Management as per the terms and conditions laid down in the Kerala University Statute w.e.f. 28-
3-2001 in the vacancy caused due to the retirement of Sri. P.J. James, Lecturer (Del. tr) in Zoology, subject to the approval of the University of
Kerala.
Dr. V.S. Josekumar will be the juniormost teacher in the Department of Zoology under the M.S.C. Management. His rank in the gradation list will
be fixed below Dr. Sunny Augustine, Lecturer.
The Principal, St. John''s College Anchal will report the date of joining duty of the incumbent, immediately.
5. The approval sought for, pursuant to Ext. P5 has been declined by the Kerala University as per communication dated 17-9-2001, a copy of
which is produced and marked as Ext. P6 in O.P. No. 34274 of 2001. Therefore Ext. P6 is under challenge at the instance of the petitioner in that
O.P.
6. Petitioner in O.P. No. 21649 of 2001 has prayed for quashing the order of the Director according sanction for the inter-management/inter-
university transfer as well as Ext. P5 proceedings issued in pursuance thereof.
7. Christ College, Irinjalakudda, is within the jurisdiction of Calicut University. Mar Ivanios College, Trivandrum, is within the jurisdiction of the
Kerala University. The issue to be decided is whether transfer of teachers from a college under a particular management affiliated to a particular
university to a college under a different management affiliated to a different university is permissible and whether the action of the latter University
refusing to approve that transfer is correct.
8. Petitioner in O.P. No. 21649 of 2001 and the Kerala University argued for the position that the transfer is not permissible whereas the petitioner
in O.P. No. 34274 of 2001 and the management contended that the transfer is not against provisions of law and hence the University was not
justified in refusing approval.
9. I have heard the counsel for the petitioners as also the counsel for the respondents in the above O.Ps.
10. Dr. Josekumar became a member of the teaching staff after due selection by the appropriate authority and his appointment was approved by
the Calicut University. Previously he had worked as Lecturer in the College under the respondent-Management pursuant to approval of his
appointment granted by the Kerala university. He has stated that he is qualified for appointment to the post of Lecturer in Zoology as per the
qualifications prescribed for that post under both the Universities, namely, the Calicut University and the Kerala University. Petitioner in O.P. No.
21649 of 2001 who got himself impleaded as addl. respondent No. 6 in O.P. No. 34274 of 2001 has averred, among other things, that Dr.
Josekumar (Petitioner in O.P. No. 34274/01) does not possess the requisite qualifications. But he has neither demonstrated as to why Dr. V.S.
Josekumar is not qualified nor done anything to substantiate that plea. Therefore the said bald averment cannot be acted upon. It is worth noticing
that neither the Director of Collegiate Education nor the Kerala University has got a case that Dr. V.S. Josekumar is not qualified for the post of
Lecturer in Zoology. I therefore find that Dr. V.S. Josekumar is fully qualified for appointment to the post of Lecturer in Zoology in the college
where he is posted as per Ext. P5.
11. It is common case that there is no provision either in the Kerala University Act or the Statutes framed thereunder, expressly prohibiting inter-
management/inter-university transfer of a teacher.
12. In support of Ext. P5 and against the refusal by the Kerala University to approve the transfer it was contended that similar inter-
management/inter-university transfers of other teachers had been made in the past and the objection now raised lacks good faith and is arbitrary
and discriminator. Ext. P7 in O.P. No. 34274/01 (a copy of which has been produced as Ext. R3(a) along with the counter affidavit of the
management) is cited as an instance of inter-university transfer. Other instances have been referred to in the counter affidavit filed by Dr. V.S.
Josekumar who is respondent No. 7 in O.P. No. 21649/01. In that counter affidavit he has referred to the case of one Shri. Philip whose inter-
management transfer was approved by the Kerala University as evidenced by Ext. R7(b). He has also referred to the case of one Shri. Antony
Mathew which is another instance of inter-management transfer for which sanction was accorded by the Director of Collegiate Education. In
support of the submission thus made by him he has produced Exts. R7(c) and R7(d) in the counter affidavit in O.P. No. 21649/01.
13. In response to the above submissions, the petitioner in O.P. No. 21649/01 would contend that those inter-management/inter-university
transfers were passed illegally and there cannot be any equality in the matter of illegality. I am unable to accept the contention that the petitioner Dr.
Josekumar is claiming equality in illegality because it is not shown that the transfers already granted as also the transfer involved in this case are
contrary to any provision of law. Counsel for the Kerala University submitted that Ext. P7 order is not an order granting any inter-university
transfer but he approval granted was in respect of a fresh appointment made by the management. But this submission does not appear to be
correct.
14. Though there are provisions to regulate inter-management transfers in the colleges affiliated to the same University, no such provisions are
made regulating or prohibiting inter-management/inter-university transfers. Reference is made to G.O.(MS) 145/200/H.Edn. dt. 19-9-1988 which
was issued in the context of Pre-degree delinking and consequent deployment of staff. That is one of the instances where inter-university transfers
of excess staff had to be resorted to, in the exigencies of service and for protecting the interest of those teachers eligible for retention. The same
educational agency may have colleges under the jurisdiction of different Universities in the State, for example, Kerala University, Calicut University
and Mahatma Gandhi University,. Materials available on record would show that the inter-management/inter university transfers were allowed by
the respondent University in the case of other teachers, taking into account the sanction accorded by the Director of Collegiate Education. Under
such circumstances, refusal by the University to approve the transfer of Dr. Josekumar, especially viewed in the absence of any provision of law
prohibiting such transfers, is unjust and unfair. It is only reasonable to find that the request for transfer by Dr. Josekumar was agreed by the two
managements, taking into account the favourable attitude shown by the University in the case of other teachers. The sanction accorded by the
Director of Collegiate education also has to be viewed, in the above perspective. Hence denial of the facility of inter-management/inter-university
transfers to the petitioner in O.P.34274/2001 is arbitrary and discriminatory. For these reasons, I am of the opinion that the grievance of the
petitioner in the above O.P. ought to be redressed, applying the principles of justice and equity. It is well accepted that this court exercising the
jurisdiction under Article 226 of the Constitution acts as a court of equity also. Hence, in my view, the petitioner in O.P.34274/2001 is entitled to
get similar treatment and consequential appropriate reliefs. Even assuming that there is justification on the part of the University in disallowing or
discouraging inter-management/inter-university transfers, deviating from the attitudes it had taken previously, fairness requires that it should bring
that fact to the notice of the management as well as the teachers, so that the same can be acted upon for the future guidance of all concerned.
15. The management as well as the beneficiary of Ext. P5 contended that the grievance of Shri. Johnson George who is the petitioner in O.P. No.
21649/01 that the rights of existing teachers will be adversely affected is without any substance since there is absolutely no difference as far as the
consequences flowing from inter-management transfers within the same University are concerned and inter-management transfers involving two
different Universities are concerned. It was contended that the existing teachers have no right to oppose the inter-management/inter-university
transfer ordered as per Ext. P5. It was also pointed out on behalf of the management as well as by the learned counsel appearing for the teacher
who got the order of transfer as per Ext. P5, that the freedom or right to transfer a teacher from one college under a management to another
college under a different management cannot be turned down or denied unless it is shown that such transfer was against the legitimate interest of the
transferred teacher or other members of the teaching staff working in the concerned colleges. It is pointed out that Ext. P5 proceedings has taken
care of the interest of the teachers in service under the respondent-management, by specifically providing that Dr. V.S. Josekumar will join in that
college as the juniormost Lecturer.
16. It is pertinent to note that Dr. V.S. Josekumar has been appointed by transfer as per Ext. P5 specifically directing that he will be the juniormost
among the teachers of the colleges under that management. As far as other teachers are concerned, it is immaterial whether he comes from a
college under another management within the same University or a different University. Counsel for the University as well as counsel appearing for
the petitioner in O.P. No. 21649/01 put forward a contention that Dr. V.S. Josekumar who has got previous service as Lecturer in the college
under the respondent-management would be able to get the credit of that service for certain purposes, though he will be the juniormost Lecturer. I
am unable to appreciate the above contention because irrespective of the nature of appointment, the principles governing the reckoning of total
service would be the same and the fact that the transferee has got previous service cannot form the foundation for a grievance for other existing
teachers so long as that incumbent joins duty as the juniormost. I therefore reject the contention that the petitioner in O.P. No. 21649/01 is entitled
to oppose Exts. P5 on the ground that it would adversely affect his legal rights or those enjoyed by other teachers.
17. Now coming to the basic question relating to the right of the management to order inter-management transfers including managements having
colleges within the jurisdiction of different universities and the right of teachers working in those colleges to seek for such transfers, I am of the view
that such rights will be available to them unless taken away by specific provisions in the University Act or other regulations made under that Act. Of
course, the Director of Collegiate Education or the University as the case may he, shall have the power to refuse sanction or decline approval if
such transfers are made in violation of specific provisions of law or prejudicially affecting the legitimate right or interest of the teachers working in
the colleges under the management concerned. An enacted law may broadly provide for matters concerning the subject matter of that enactment
and for effectuating those matters may confer powers on certain authorities, as also rights and liabilities on certain others. As regards matters
specifically dealt with in that enactment, it will be easier for the authorities to act upon. But difficulties arise in respect of matters which are not
specifically covered by the provisions of the statute. This in turn gives rise to disputes requiring adjudication by judicial or quasi-judicial forums
having jurisdiction. In the matter of resolving such disputes, it should be remembered that the enacted law cannot make provisions for everything
concerning that subject matter. As far far as matter which are not thus specifically covered by the provisions of that enactment or any other
subordinate legislation brought into force as empowreed by that enactment, certain principles will have to be followed to deal with issues or
disputes arising in that area. One such principle is that in the absence of provisions expressly or impliedly curtailing any freedom or right otherwise
enjoyed by the citizens or class of persons whose actions are intended to be controlled or regulated by the enacted law, the authorities under the
Act shall not encroach upon such existing freedoms or rights or interfere with the legitimate rights they are otherwise free to enjoy. Rights or
freedom to do certain thing, enjoyed or enjoyable under the provisions the Constitution can be restricted or curtained by a competent legislation
intended to regulate such actions. Right or freedom that is not curtailed or restricted shall be available to the citizens, notwithstanding the statute law
on the subject. Ext. P5 is not contrary to any of the provisions of law and it cannot therefore be held as illegal or unenforceable.
18. Learned counsel for the University put forward contentions with a view to sustain Ext. P6 order by which transfer was declined by the Kerala
University stating that grant of approval by the University is invariably done only in respect of matters which are specifically provided and which are
specifically enumerated, as though all those matters could be exhaustively listed. But the fact remains that the relevant Act of the State Legislature
or the statutes framed thereunder does not contain any provision directing the University to grant approval only in such and such matters and in no
other. I do not find any substance in the contention taken by the University that approval cannot be granted in the absence of a provision enabling
the University to do so. In my opinion, even in the absence of a provision enabling the University to approve certain acts, the University has got the
power to grant approval and also to decline approval depending upon the merits of the matter, provided such exercise of power is not prohibited
by the provisions of law. Managers have got the basic right to transfer the staff, for, transfer is an incidence of service. Unless that right is taken
away by a provision of law validly enacted or opposed to the provisions in any other manner, the said right shall be conceded. Needless to say that
such powers have to be exercised by the Management and the University fairly and reasonably and not arbitrarily.
19. In the light of the discussions made by me above, I hold that the petitioner in O.P. No. 34274/01 is entitled to the reliefs prayed for by him.
Accordingly, I quash Ext. P6 in that O.P. and direct the 5th respondent-University to consider afresh the question of approval of the transfer and
posting ordered as per Ext. P5, in the light of the observations made in the foregoing paragraphs. Having regard to the fact that the petitioner,
despite the service rendered by him is not paid any salary from 29-3-2001 onwards, for want of approval, I direct the respondent University to
pass appropriate orders within one month from the date of receipt of a copy of this judgment. It follows that the petitioner in O.P. No. 21649/01 is
not entitled to the reliefs prayed for by him.
O.P. No. 21649/01 is dismissed and O.P. No. 34274/01 is allowed as above.