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Himachal Pradesh High Court · body

2014 DIGILAW 526 (HP)

Ved Parkash v. State of H. P.

2014-05-02

RAJIV SHARMA, TARLOK SINGH CHAUHAN

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Judgment Tarlok Singh Chauhan, J. The petitioner has filed this petition claiming therein the following relief(s):- (i) That writ in the nature of certiorari may kindly be issued and the impugned order of transfer dated 10.2.2014 (Annexure P-4) may kindly be quashed and set-aside. (ii) That writ in the nature of mandamus may kindly be issued directing the respondents 1 and 2 to permit the petitioner to work as Lecturer (Chemistry) on contract basis in Govt. Sr. Sec. School, Kashmaila Distt. Mandi. 2. It is alleged that petitioner after his due selection by the H.P. Subordinate Selection Board, Hamirpur came to be appointed as a Lecturer in Chemistry in the school cadre on contract basis vide office order dated 26.8.2010. The specimen copy of contract has been appended with the writ petition as Annexure P-2 and condition No. 7 thereof reads as under:- “Transfer of an official appointed on contract basis will not be permitted from one place to another in any case.” This contract was renewed on year to year basis by the Director of Higher Education subject to good performance and good conduct. 3. Lastly, one agreement/contract was signed on 25.9.2013, copy whereof has been annexed as Annexure P-3 with the petition. The condition No. 6 thereof stipulates as under:- “Transfer of an official appointed on contract basis will not be permitted from one place to another in any case.” 4. Vide order dated 10.2.2014 despite condition No. 6, the petitioner has been transferred from his current place of posting GSSS Kashmaila (Mandi) to GSSS Sarahan (District Shimla). This order has been challenged on the ground (i) that petitioner is shown to have been transferred vice-versa Smt. Neeti Chaudhary, while there was no request made by the petitioner to this effect, (ii) nothing has been mentioned in the transfer order regarding the T.A.D.A. and joining order, which clearly shows that impugned order of transfer has been made simply in order to accommodate the said respondent No. 3 and (iii) the transfer order is contrary to condition No. 10 of the appointment letter because the petitioner has only completed three years and four months at one place of posting. Condition No. 10 of the appointment letter reads as under:- “An official appointed on contract basis who have completed five years tenure at one place of posting will be eligible for Transfer on need based wherever required on Administrative grounds except as stated in terms and conditions No.4.” (iv) the appointment of the petitioner was lastly renewed on 25.9.2013 and in terms of condition No. 6 of this contract, the petitioner could not have been transferred prior to the expiry of one year, which period would expire on 24.9.2014, (v) the order of transfer had been made in mid-academic session and the daughter of the petitioner is studying in Ist class at Kashmaila (Mandi), which school is summer, whereas the petitioner has been transfer to a school, which is winter closing, as such impugned order of transfer has been made in mid-academic session and contrary to the transfer policy. 5. The respondents have filed their reply, wherein the respondents in the preliminary submissions have contended that petitioner is a Lecturer (School Cadre) Chemistry and is borne in the State Cadre post, as such he can be transferred within the State of Himachal Pradesh in the exigency of service as well as in public interest. Therefore, no cause of action has accrued in favour of the petitioner, since transfer is a mandatory service condition. 6. It is further averred that in terms of clause-1 of Comprehensive Guiding Principles 2013 issued vide memorandum dated 10.7.2013 which regulate the transfer of officers/ officials working under the Government of H.P. working in board/ Corporations and autonomous bodies under the State Government, the said principles have also been made applicable to the teachers of Education Department, as per clause 1(i) thereof and clause-7 thereof now provide:- “Posting/transfers of contract employees: The employee appointed on contract basis shall be eligible for transfer after completion of three years of service at par with the regular employees on administrative grounds wherever required. The transfer/ posting of such contractual employees will be made on need based basis.” 7. Lastly, it is contended that neither any legal or fundamental right of the petitioner has been infringed in any manner, since the transfer has been effected with the prior approval of the competent authority on completion of petitioner’s normal tenure of three years at one place. 8. We have heard the learned counsel for the parties. Lastly, it is contended that neither any legal or fundamental right of the petitioner has been infringed in any manner, since the transfer has been effected with the prior approval of the competent authority on completion of petitioner’s normal tenure of three years at one place. 8. We have heard the learned counsel for the parties. This court in CWP No. 269 of 2014 titled Om Dutt vs. State of Himachal Pradesh and others, decided on 17.4.2014, after taking into consideration the entire law on this subject, has held as under:- “24. ………. the judicial review of administrative order of transfer can only be interfered with when the same is actuated with malafide or based on extraneous consideration or is against professed norms or the same could be termed as punitive and is in lieu of any punishment.” 9. However, the moot question in the present case which is required to be determined is as to whether the petitioner could have been ordered to be transferred under clause-7 of the Comprehensive Guiding Principles 2013 issued vide memorandum dated 10.7.2013 or the service of the petitioner would be governed in terms of the agreement/contract entered into between the petitioner and respondent No. 2 on 25th September 2013 and therefore, cannot be transferred prior to completion of one year as per condition No.6 thereof. 10. We have given our deep and thoughtful consideration to the aforesaid proposition and are of the firm view that when general instructions i.e. Comprehensive Guiding Principles 2013 are pitted against a specific agreement entered into between the employer and the employee, the general instructions will have to yield to the agreement. Reason for this is obvious, the general instructions regulate the general conditions of service of the employee while the contract between the employer and the employee is personal and therefore, enforceable as a matter of right and would therefore, govern the special and specific conditions of service. 11. It is settled that special conditions of the contract will prevail over the general conditions, particularly when the general conditions are in nature of administrative orders issued without any statutory backing. 12. 11. It is settled that special conditions of the contract will prevail over the general conditions, particularly when the general conditions are in nature of administrative orders issued without any statutory backing. 12. The matter can be viewed from another angle, it may not be possible for an employee to seek justiciability of Comprehensive Guiding Principles 2013 issued by the department of Personnel vide memorandum dated 10.7.2013, but the employee as also the employer can definitely rely upon the terms of the contract/ agreement executed inter se amongst themselves and seek its enforceability. 13. In the given facts and circumstances, the contract entered into between the employer and the employee would be taken to be the special condition of service for employees, while the general condition of service would be those which have been issued by way of Comprehensive Guiding Principles 2013 read with similar instructions issued by the respondents- Department. 14. This interpretation would be further strengthened from the fact that Comprehensive Guiding Principles 2013 have not been issued by the respondents- department, but have in fact been issued by the department of Personnel. 15. Lastly, it may be observed that Comprehensive Guiding Principles 2013 were admittedly issued vide memorandum dated 10.7.2013, while the agreement in the present case was entered into on a later date on 25.9.2013 and, therefore, it can legitimately be inferred that respondents themselves wanted the service conditions of the petitioner to be regulated by the special conditions as incorporated in the agreement entered inter se between the petitioner and respondent No. 2 and not to be governed by the terms of Comprehensive Guiding Principles 2013. 16. In view of the aforesaid discussion, the other questions raised need not to be gone into. Since the transfer of the petitioner has been ordered in violation of condition No. 6 of the agreement/ contract signed on 25.9.2013, therefore, the transfer of the petitioner effected vide Annexure P-4 is quashed and set-aside and respondents are directed to permit the petitioner to serve at GSSS Kashmaila till the expiry of the terms of his contract i.e. 24.9.2014. 17. Resultantly, the present petition is allowed, leaving the parties to bear their own costs.