Smt. Vandana Dandotiya vs State of Madhya Pradesh and Others

Sujoy Paul, J.—This is second visit of the petitioner to this Court. Earlier, she filed writ petition No. 7251/2012 against the impugned transfer order. This Court disposed of the said writ petition with the direction to the respondents to decide the representation. In turn, the representation is decided by order dated 29.11.2012 (Annexure P-1), which is challenged in the present petition. The singular ground of attack against the transfer and rejection order is that as per the conditions of appointment, the petitioner can be transferred and posted on contract basis in the same district wherein she is appointed. Annexure P-6 dated 4.1.2008 is relied upon for this purpose.

The respondents have stated that the petitioner''s transfer order is in accordance with the GAD Circular dated 1.5.2012 and as per the transfer policy of 2012-2013.

In the considered opinion of this Court, the transfer order can be interfered with if it violates any statutory provision, proved to be malafide, changes service conditions of an employee to her detriment or passed by an incompetent authority. The service conditions of a contractual employee are governed by the terms of contract. In other words, for civil post holders, the department has framed statutory recruitment and promotion rules. No such rule is shown which governs the service conditions of petitioner, a contractual employee. Her service conditions are accordingly governed by the terms of contract, Annexure P-6. Clause (1) of the conditions of employment reads as under:-

This is trite in law that transfer can be treated to be a condition of service provided the employee is holding the post on substantive basis. Transfer is permissible provided it is condition of service and contract of service contemplates a provision in this regard. If it is otherwise, by no stretch of imagination, transfer can be said to be incident/condition of service. A Full Bench of this Court in Ashok Tiwari Vs. Madhya Pradesh Text Book Corporation and Another opined as under:-

The principle that emerges on the basis of the aforesaid judgments would clearly indicate that transfer is of a government servant or an employee, who is appointed to a post and transfer even though an accident and condition of service, is from one post to another i.e., from one place to another without altering the basic terms and conditions of service to the disadvantage of the employee concerned. 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 from one place to another. It is also clear from the aforesaid judgments and the principle, that a ''daily rated employee'' is not appointed to any post and before he is appointed, the pre-conditions contemplated for appointment to the post are not followed. His appointment is on day-to-day basis as per the need of work and normally the conditions of service regarding transfer, suspension, disciplinary action cannot be applied to such an employee.

The petitioner is admittedly transferred beyond the district for which she was appointed and posted. Thus, admittedly, condition of her employment/appointment has been altered to her detriment. The question is whether this can be done under the garb of the transfer policy of 2012-2013. In the impugned order (Annexure P-1) it self the respondents have stated that for contractual employees no different transfer policy is issued and, therefore, the transfer policy of 2012-2013 will apply to the petitioner as well. I am not impressed with this argument. Once a contract is entered into, the respondents are bound by its terms and cannot act contrary to it. The transfer policy aforesaid in no way permits the respondents to transfer the petitioner beyond the unit permissible under the appointment order dated 4.1.2008 (Annexure P-6). Thus, the rejection order cannot be permitted to stand. Consequently, the impugned order of transfer to the extent it relates to the petitioner, and the rejection order dated 29.11.2012 (Annexure P-1) are set aside. Petition is allowed. No costs.