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Madhya Pradesh High Court · body

2020 DIGILAW 779 (MP)

Ajit Singh v. State of M. P.

2020-08-06

SUJOY PAUL

body2020
ORDER 1. With the consent of the parties, the matter is heard finally. 2. This petition filed under Article 226 of the Constitution assails the order dated 22.6.2020 whereby the petitioner is directed to work at District Umariya against the vacant post of Programme Officer. It was directed that new contract of petitioner be executed at District Umariya. 3. Criticizing this order, learned counsel for the petitioner submits that impugned order dated 22.6.2020 itself makes it clear that as per the condition of contract, the work of contractual employees is to be extracted/taken at the same place where he was appointed. 4. By placing reliance on the document dated 21.5.2020 Annexure RJ-1, it is argued that the apex body, i.e., the Directorate of Panchayat and Rural Development Department in video conferencing decided to extend the contract for a period for one year. As per this policy decision taken at the apex level, the subordinate authorities including the Jila Panchayat, Katni is now required to undertake the consequential ministerial exercise and enter into the consequential contract relating to the extension of service. Accordingly, by order dated 22.5.2020 Annexure RJ-2, the applicant’s ACRs were produced before the learned CEO with the request to issue necessary order for extension of the contract. 5. After having taken a policy decision on apex level, it is no more open to the respondents to direct the petitioner to work on a different place other than the place where he was working pursuant to his appointment. 6. Prayer is opposed by the learned Dy. Advocate General on the strength of the policy dated 1.12.2015 wherein in clause 11 it was mentioned that after issuance of contractual order of appointment, the employee needs to join at the place of posting otherwise his order will be cancelled automatically. If the applicant is interested to continue, he has to enter into new contract at District Umariya. 7. Learned Dy. Advocate General also placed reliance on the order passed by this Court in W. P. No. 8150/2011 (Rajendra Prasad Bakoriya v. Secretary, The State of M. P.) Annexure R-6 to bolster his submission that either for enforcement of contract or for challenging the termination of contractual appointment, the remedy is elsewhere and not before this Court. 8. No other point is pressed by counsel for the parties. 9. I have heard counsel for the parties at length and perused the record. 8. No other point is pressed by counsel for the parties. 9. I have heard counsel for the parties at length and perused the record. 10. The relevant portion of the impugned order dated 22.6.2020 reads as under : ß@@vkns'k@@ Hkksiky] fnukad 02 Ø@8@0@,uvkjbZth,l&e-iz-@LFkk-@,uvkj&2@2020] egkRek xka/kh ujsxk varxZr lafonk vf/kdkfj;ksa@deZpkfj;ksa ds lkFk vuqcaèk fu"ikfnr dj mudh lsok ysus ds fy;s ftyk dysDVj ¼ftyk dk;ZØe leUo;d½ dks vfèkdkj izR;k;ksftr fd;s x;s gSA lafonk vfèkdkfj;ksa@deZpkfj;ksa dh fu;qfDRk ^^dk;Z fo'ks"k ,oa LFkku fo'ks"k** ds fy;s gksus ds dkj.k LFkkukarj.k ugha fd;k tk ldrk gSA bl ifjizs{; esa Jh vthr flag] lafonk vfrfjDr dk;ZØe vf/kdkjh] tuin iapk;r cgksjh can ftyk dVuh dks vkxkeh vkns'k rd ftyk mefj;k esa fjDr vfrfjDr dk;ZØe vfèkdkjh ds in ij dk;Z djus gsrq vknsf'kr fd;k tkrk gSA vr% Jh vthr flag] lafonk vfrfjDr dk;ZØe vf/kdkjh dk uohu vuqca/k ftyk mefj;k esa fu"ikfnr fd;k tkosA vk;qDr }kjk vuqeksfnr ¼izHkkr mbds½ la;qDr vk;qDr ¼iz’kk-½ e/;izns'k jkT; jkstxkj xkjaVh ifj"knÞ (Emphasis supplied) 11. A careful reading of this order leaves no room for any doubt that respondents are conscious of the fact that contractual employee cannot be transferred by posting him to a different place than the place on which he was appointed. Indisputably, the policy decision is already taken to continue the contractual employment of the existing employee. Pertinently, in the order dated 21.5.2020, it is mentioned as under : ßlanfHkZr i= 03 ds ek/;e ls vij eq[; lfpo] e-iz- 'kklu iapk;r ,oa xzkeh.k fodkl foHkkx dh ohfM;ks dkWUÝsaflax fnukad 16-4-2020 dks eujsxk ;kstuk esa lafonk esa inLFk yksd lsodksa gsrq lafonk o`f) gsrq fuEukuqlkj funsZ'k fn, x, gSa& 1- ftyk@tuin iapk;r esa lafonk esa inLFk leLr veys dh lafonk vofèk iwokZuqlkj fu/kkZfjr ACR ¼okf"kZd dk;Z iz.kkyh½ i=d esa izfof"V djrs gq, vuqca/k dj vkxkeh 01 o"kZ gsrq lafonk vof/k c<+kbZ tkosA 2- xzke iapk;r esa inLFk xzke Lojkstxkj lgk;d dh lsok vofèk iwokZuqlkj fuèkkZfjr izfØ;k ds rgr dk;Zokgh dj vkxkeh 01 o"kZ gsrq lafonk vofèk c<+kbZ tkosAÞ (Emphasis supplied) 12. The above highlighted portion shows that the contractual period is to be extended for the employees who are working at the relevant place. A conjoint reading of order dated 22.6.2020 Annexure P-1 and 21.5.2020 Annexure RJ-1 shows that a contractual employee needs to be kept at the same place where he was appointed. The above highlighted portion shows that the contractual period is to be extended for the employees who are working at the relevant place. A conjoint reading of order dated 22.6.2020 Annexure P-1 and 21.5.2020 Annexure RJ-1 shows that a contractual employee needs to be kept at the same place where he was appointed. His extension of contractual period, as a consequence thereof has to be at the same place where he was working. For this reason, by Annexure RJ-2, the record of the petitioner was produced before the concerned CEO, Jila Panchayat, Katni so that appropriate decision may be taken for extension of contract period. The respondents, by issuing the impugned order dated 22.6.2020, have tried to do something indirectly which was impermissible, if done directly. A contractual employee cannot be transferred to a place other than the place where he was appointed. Thus, a different modus operandi adopted by directing the petitioner to sign a contract at Umariya so that the petitioner is left with no option but to go to Umariya. This is trite that if something cannot be permitted to be done directly, it cannot be so permitted by adopting indirect method. 13. A full bench of this Court in the case of Ashok Tiwari v. M. P. Text Book Corporation and another [ 2010 (3) JLJ 227 = 2010 MPLJ 662 (FB)] opined that in absence of an enabling provision/service condition, a casual employee cannot be transferred. In other words, the transfer is not a condition of service for a casual employee. The said principle will squarely apply in a case of contractual employee. Unless it is shown that there exists the provision enabling the employer to transfer such employee, the transfer order cannot sustain judicial scrutiny. The relevant portion reads as under: “23. ...........That being so, one of the preconditions necessary for transfer of an employee is that he should be holder of a post, his appointment should be substantive in nature to a regular post in the establishment after following the due process contemplated for appointment to the post and even though transfer is an incident of service, but transfer is permissible only if the conditions of service and the contract of service contemplates a provision for transfer one place to another.” 14. Clause 11 of the policy has no significance in this matter because it is applicable only when the contractual order of appointment is already passed. This exercise relating to the petitioner is in the pipeline in the teeth of Annexure RJ-2. In other words, the CEO, Jila Panchayat, Katni needs to take a decision and pass an appropriate order for extension of contract. The judgment of Rajendra Prasad Bakoriya (supra) cannot be pressed into service because the petitioner has neither challenged the termination nor seeking any specific performance of contract. Indeed, he is seeking enforcement of certain portion of administrative order dated 22.6.2020 Annexure P-1 wherein respondents themselves realised and recorded that a contractual employee cannot be transferred. In addition, he is seeking enforcement of policy decision mentioned in Annexure RJ-1 whereby the contractual period is to be extended for a period of one year. Thus, both the arguments of learned Dy. A.G. will not cut any ice. 15. In view of the foregoing analysis, the impugned order dated 22.6.2020 cannot sustain judicial scrutiny. The said order is set aside. It will be open to the CEO, Jila Panchayat, Katni to take a decision as per law regarding the extension of contract period as per Annexure RJ-1 and RJ-2. The petition is allowed.