Raghav Sood vs H.P. University & Another

Anoop Chitkara, J

The petitioner, who is a Junior Office Assistant (IT) (on contract basis), has come up before this Court challenging his transfer from the Evaluation Branch of Himachal Pradesh University Shimla to its regional Centre, Dharamshala, and also challenging the dismissal of the representation by Registrar on 25.9.2020, seeking a writ of certiorari to quash the same on the ground that a contract employee could not be transferred before completion of three years service from his initial appointment, and secondly that Clause 10 of the Transfer Policy protects the petitioner because such transfer could be done only after obtaining his consent, which the University never asked.

We have heard Mr. Sanjeev Bhushan, learned Senior Advocate assisted by Mr. Rajesh Kumar, Advocate for the petitioner and Mr. Ashok Sharma, Senior Advocate assisted by Mr. Surender Verma, Advocate for respondent No.1 -University.

The order Annexure P-2 did not reveal any reason for such transfer. Challenging the impugned order, the petitioner had earlier come up before this Court by filing CWP No.1794 of 2020. Vide order dated 10.9.2020, this Bench had disposed of the petition with an observation that as per Clause 10 of the Notification if any employee is to be posted in the Regional Centre Dharamshala, the acceptance from the employee is required to be taken. The records reveal that no such consent was obtained from the petitioner before his transfer to Regional Centre, Dharamshala.

In such a situation, this Court had permitted the petitioner to make representation in terms of the clause, as mentioned earlier. After that, the petitioner did make the representation dated 14.9.2020, Annexure P-4. Vide order dated 25.9.2020, Annexure P-5, the Registrar of the University dismissed the representation on the ground that the order of transfer is effected on administrative exigencies of service and the same was issued with the prior approval of the Vice-Chancellor of the University, who had passed the order in exercise of powers vested under Ordinance 35.24 of the first Ordinance. It further revealed three vacancies at Dharamshala and was required to be filled-up in administrative exigencies. It also shows that the provision of Ordinance 35.24 could not have been eclipsed by a resolution of the Executive Council dated 27.01.2016.

The petitioner was initially appointed on a contract basis, and such contract Annexure P-6 was renewed on 28.8.2020. Clause 6 of the contract mentioned that a Junior Office Assistant (IT), who is appointed, on a contract basis, would be eligible for transfer only on completion of three years and that too on a need basis, post wherever required on administrative grounds.

Mr. Ashok Sharma learned Senior Advocate assisted by Mr. Surender Verma Advocate, submits that he has received the written instructions from the University to the effect that on Oct 1, 2020, the petitioner's services have been regularized. He further submits that because of the regularization, the restriction of the contract, in any case, would not come into force. Furthermore, three years period of the contract also stands expired in August 2020. He further submits that there was no violation of the contract because the transfer order was passed in June 2020. In contrast, the representation was decided in August 2020; the variation was hardly two months.

Mr. Sanjeev Bhushan learned Senior Advocate does not dispute that the petitioner has been promoted, w.e.f. 1. 10.2020. The effect of regularization of the petitioner's service from the contract is comparable to transforming a caterpillar into a butterfly. The petitioner is now a regular employee and transfers being incident of service; he cannot claim to be posted at one particular place unless such transfer is not shown malafide and violation of transfer policy.

In the writ petition, the petitioner has arraigned the second respondent, a relative of the petitioner, and is a nominated counselor because the transfer order was passed because of his influence. However, the Coordinate Bench of this Court vide order dated 30.9.2020, did not issue any notice to the private respondent. The principle of Audi alteram partem that any person may not be condemned unheard, we refrain ourselves from expressing any opinion relating to the second respondent.

The fact that during the pendency of this petition, the petitioner stands regularized and now he is no more contractual employee, merely on technicalities that at the time of passing of the transfer order on 16.6.2020, the petitioner had not completed three years of contractual service, would be too technical leading to the cancellation of the same. The petitioner has failed to prove any mala fide or arbitrariness.

Given above, there is no merit in the present petition and the same is accordingly dismissed. Pending application(s), if any, are closed.