Surender Kumar Verma and ors. Vs. State of Rajasthan and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/770321
SubjectService
CourtRajasthan High Court
Decided OnFeb-03-2000
Case NumberS.B. Civil Writ Petition Nos. 5562, 5563, 5652, 5804, 5805, 5920, 6195, 6230, 6234, 6277, 6278, 6294
Judge Shiv Kumar Sharma, J.
Reported in2000(2)WLN681
AppellantSurender Kumar Verma and ors.
RespondentState of Rajasthan and ors.
Cases ReferredBhim Singh v. State of Haryana
Excerpt:
rajasthan panchayati raj act, 1994 - section 89(8a)--transfer of teachers of panchayat samities--scope of powers of state--state has wide powers in the matter--it can refuse transfer but cannot shut off the teachers from asking for it--bond furnished by teachers at the time of appointment that they shall not ask for transfer for 10 years and to pay a sum of rs. 20,000 in case of breach of this condition is invalid--same discharged--amount deposited by petitioners to be refunded-state to appoint a committee to screen the representations for transfer and to act in accordance with section 89(8a).;writ petitions disposed of - - however, the petitioners got success in seeking transfers at the desired places. 8. it is well settled that an aggrieved person is entitled to judicial review if he can show that a decision of the public authority affects him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expects to be permitted to continue to enjoy either until he is given reasons for withdrawal and the opportunity to comment on such reasons. state of haryana air1980sc768 wherein their lordships of the supreme court observed thus- the appellants having believed the representation made by the state and having further acted thereon cannot now be defeated of their hopes which have crystalised into rights, thanks to the application of the doctrine of promissory estoppel.shiv kumar sharma, j.1. since identical questions of fact and law are involved in all these writ petitions, they are being disposed of by a common order.2. all the petitioners were appointed as teacher grade iii and they were asked to furnish undertaking that they would work for 10 years at their respective place of posting and would not make request for transfer to any other district. in case such request for transfer is made before expiry of 10 years, they would deposit rs. 20,000/- with the state treasury. all the petitioners executed the bonds incorporating aforequoted undertaking.3. it appears that immediately after joining at their respective places of posting, the petitioners made request seeking transfer at their desired places. some of the petitioners deposited rs. 20,000/- with the state treasury. however, the petitioners got success in seeking transfers at the desired places. but suddenly the state government passed an order on june 28, 1999 imposing condition no. 3 that transfer of the teachers who executed bond not to make request for transfer till the expiry of ten years, stood automatically cancelled and they would not be relieved in any case whatsoever. the petitioners seek to quash this condition no. 3 of the order dated june 28, 1999 in the instant writ petitions and to implement their transfer orders.4. it was pleaded on behalf of the state of rajasthan that the government framed a new transfer policy in the year 1999 and as per the said policy it was decided that the earlier policy of taking rs. 20,000/- from the employees for their transfer shall be abandoned and the condition which remained in existence was that if a candidate seeks appointment in pursuance to the advertisement issued by the district concerned, he shall have to serve at the place of posting for a period of 10 years. this condition was imposed looking to the required number of teachers who face difficulty in running the schools. the teachers were asked to furnish undertaking in the interest of students. condition no. 3 of the order dated june 28, 1999 is in the large interest of the public and the students. rather when the petitioners have given undertaking to serve at a place where they were posted then seeking any mandamus contrary to their own undertaking is wholly erroneous. the order of transfer can only be interfered with when it is malafide and contrary to the statutory provisions. as condition no. 3 has been imposed for public cause and there is no malafide behind it, this court should not interfere in the matter.5. i have heard learned counsel and carefully perused the material or record.6. before dealing with the rival submissions, i deem it necessary to look at the statutory provisions regarding transfer of an employee from one panchayat samiti to another. sub-section (8) of section 89 of the rajasthan panchayati raj act, 1994 (for short the act 1994) provides that appointment by transfer shall be made after consultation with the pradhans of panchayat samities or pramukhs of zila parishads from and to which such transfer is proposed to be made. sub-section (8a) of section 89 of act 1994 however gives wide powers to the state government in the matter of transfers. it provides thus-(8a)-notwithstanding anything contained in sub-section (8), the state government may transfer any member of the service from one panchayat samiti to another panchayat samiti, whether within the same district or outside it, from one zila parishad to another zila parishad or from a panchayat samiti to a zila parishad, or from a zila parishad to a panchayat samiti, and may also stay the operation of or cancel any order of transfer made under sub-section (8) of the rule made thereunder.7. from the perusal of sub-section (8a) it is evident that the state government possesses wide powers to transfer an employee. now it is to be seen as to whether in view of powers provided in sub-section (8a) of section 89 of act 1994 the state government was justified in asking the employees to submit bond incorporating undertaking that they will not make request for transfer till the expiry of 10 years from their date of joining the service? whether condition no. 3 of the bond is unconstitutional, unfair, unreasonable and opposed to public policy.8. it is well settled that an aggrieved person is entitled to judicial review if he can show that a decision of the public authority affects him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expects to be permitted to continue to enjoy either until he is given reasons for withdrawal and the opportunity to comment on such reasons. in l.i.c. of india v. consumer education & research centre : air1995sc1811 their lordships of the supreme court indicated thus (para 4).it is therefore, the settled law that if a contract or a clause in a contract is found unreasonable or unfair or irrational, one must look to the relative bargaining power of the contracting parties. in dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. he has either to accept or leave the services or goods in terms of the dotted line contracts. this option would be either to accept the unreasonable or unfair terms or forego the service for ever. with a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract.9. in shilpi bose v. state of bihar 1991 supp. (2) scc 659 it was indicated by their lordships of the supreme court that-the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide. a government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. transfer orders issued by the competent authority do not violate any of his legal rights. even if transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order, instead affected party should approach the higher authorities in the department.10. mr. r.s. chauhan, learned counsel appearing for some of the petitioners contended that state government should be asked to accept rs. 20,000/- and implement the transfer orders of the petitioners. the government should not be permitted to back track. reliance was placed on bhim singh v. state of haryana : air1980sc768 wherein their lordships of the supreme court observed thus-the appellants having believed the representation made by the state and having further acted thereon cannot now be defeated of their hopes which have crystalised into rights, thanks to the application of the doctrine of promissory estoppel. therefore it is not open to the state, according to the law laid down by this court, to back track.11. in brojo nath case : (1986)iillj171sc it was held that the courts will not enforce and will strike down an unfair and unreasonable contract or unfair and unreasonable clause of contract, entered into between the parties who are not equal in bargaining power.12. in view of the legal position indicated hereinabove i proceed to consider the nature of undertaking incorporated in the bond by the petitioners. before joining the service the petitioners were asked to submit undertaking that they would not seek transfer from their place of posting and work there for a period of 10 years. in the event of breach of this condition i.e. if request for transfer is made before expiry of 10 years, they shall deposit rs. 20,000/-with the state treasury, learned advocate general canvassed that now transfer policy was framed by the state government in 1999, according to which earlier policy of accepting rs. 20,000/- from the employees for their transfer was abandoned and only condition left in existence was that selected employee shall have to serve at his place of posting for a period of 10 years. the petitioner committed breach of undertaking and sought transfer after depositing rs. 20,000/- transfer orders were initially passed but subsequently in order dated june 28, 1999 condition no. 3 was imposed in the larger interest of the public that the employees who had furnished the bond not to seek transfer for a period of 10 years, their transfers would automatically stand cancelled. this condition is conscionable, fair, reasonable and based on public policy.13. if a person asks for something it does not mean that merely by asking he will get it. if one possesses some thing it is up to him to provide or not to provide that thing to others. but one cannot prevent others from asking for it. in the instant cases even the right to ask for transfer was curtailed and the employees were directed to furnish undertaking that they would not seek transfers for a period of 10 years. the employees had two options, either to submit bond of undertaking as desired by the state government or forego the service forever. even the employees were asked to undertake that in case of breach they would deposit rs. 20,000/- with the state treasury. after the employees furnished the bonds undertaking the state government now says that it has abandoned the condition of depositing rs. 20,000/- with the state treasury. to my mind, the condition in the bonds of undertaking furnished by the employees cannot be abandoned by the state government. it has no role to play as it was the unilateral act on the part of the employees. only the employees could abandon the condition by withdrawing the bond but they were not asked by the state government to withdraw the bonds. under sub-section (8a) of section 89 of the act 1994 the state government has wide powers to transfer or not to transfer its employee from a particular place but it can not prevent its employee from asking for transfer. the state government may decline the prayer of the employee but it cannot shut his mouth. in the garb of transfer policy the state government cannot act in arbitrary, unjust unfair and unreasonable manner. the act of state government in asking the employees to submit bond of undertaking was against the provisions of the act of 1994. the conditions that were asked to incorporate in the bond are unjust, unfair and unreasonable. it was a contract entered into between the parties who were not equal in bargaining power and it offends articles 14, 16 and 21 of the constitution of india. it is difficult to agree under this situation, with the submissions of learned advocate general. contention of mr. r.s. chauhan, learned counsel that government should be asked to accept rs. 20,000/- also cannot be accepted.14. it is no doubt true that the state government has to look after the interest of the students and for this purpose the transfer policy of teachers in framed but such policy should not go beyond the powers provides in sub-section (8a) of section 89 of the act of 1994.15. for the reasons aforementioned i dispose of the instant writ petitions in the following terms.(i) the bonds of undertaking submitted by the petitioners being violative of articles 14, 16 and 21 of the constitution of india shall stand discharged. the amount deposited by the petitioners in pursuance to the undertaking shall be refunded forthwith.(ii) the petitioners, if they so choose, may submit representations to the secretary, panchayati raj department expressing their respective grievances. the secretary panchayti raj department shall nominate a committee to screen the representations. the committee shall act in view of the powers provided in sub-section (8a) of section 89 of the act 1994 and decide the representations within a period of two months from the date of its receipt.(iii) all interim orders passed during the pendency of the writ petitions shall stand vacated.(iv) the parties shall bear their own costs.
Judgment:

Shiv Kumar Sharma, J.

1. Since identical questions of fact and law are involved in all these writ petitions, they are being disposed of by a common order.

2. All the petitioners were appointed as Teacher Grade III and they were asked to furnish undertaking that they would work for 10 years at their respective place of posting and would not make request for transfer to any other district. In case such request for transfer is made before expiry of 10 years, they would deposit Rs. 20,000/- with the State Treasury. All the petitioners executed the bonds incorporating aforequoted undertaking.

3. It appears that immediately after joining at their respective places of posting, the petitioners made request seeking transfer at their desired places. Some of the petitioners deposited Rs. 20,000/- with the State Treasury. However, the petitioners got success in seeking transfers at the desired places. But suddenly the State Government passed an order on June 28, 1999 imposing condition No. 3 that transfer of the teachers who executed bond not to make request for transfer till the expiry of ten years, stood automatically cancelled and they would not be relieved in any case whatsoever. The petitioners seek to quash this condition No. 3 of the order dated June 28, 1999 in the instant writ petitions and to implement their transfer orders.

4. It was pleaded on behalf of the State of Rajasthan that the Government framed a new transfer policy in the year 1999 and as per the said policy it was decided that the earlier policy of taking Rs. 20,000/- from the employees for their transfer shall be abandoned and the condition which remained in existence was that if a candidate seeks appointment in pursuance to the advertisement issued by the District concerned, he shall have to serve at the place of posting for a period of 10 years. This condition was imposed looking to the required number of teachers who face difficulty in running the schools. The teachers were asked to furnish undertaking in the interest of students. Condition No. 3 of the order dated June 28, 1999 is in the large interest of the public and the students. Rather when the petitioners have given undertaking to serve at a place where they were posted then seeking any mandamus contrary to their own undertaking is wholly erroneous. The order of transfer can only be interfered with when it is malafide and contrary to the statutory provisions. As condition No. 3 has been imposed for public cause and there is no malafide behind it, this court should not interfere in the matter.

5. I have heard learned Counsel and carefully perused the material or record.

6. Before dealing with the rival submissions, I deem it necessary to look at the statutory provisions regarding transfer of an employee from one Panchayat Samiti to another. Sub-section (8) of Section 89 of the Rajasthan Panchayati Raj Act, 1994 (for short the Act 1994) provides that appointment by transfer shall be made after consultation with the Pradhans of Panchayat Samities or Pramukhs of Zila Parishads from and to which such transfer is proposed to be made. Sub-section (8A) of Section 89 of Act 1994 however gives wide powers to the State Government in the matter of transfers. It provides thus-

(8A)-Notwithstanding anything contained in Sub-section (8), the State Government may transfer any member of the service from one Panchayat Samiti to another Panchayat Samiti, whether within the same district or outside it, from one Zila Parishad to another Zila Parishad or from a Panchayat Samiti to a Zila Parishad, or from a Zila Parishad to a Panchayat Samiti, and may also stay the operation of or cancel any order of transfer made under Sub-section (8) of the rule made thereunder.

7. From the perusal of Sub-section (8A) it is evident that the State Government possesses wide powers to transfer an employee. Now it is to be seen as to whether in view of powers provided in Sub-section (8A) of Section 89 of Act 1994 the State Government was justified in asking the employees to submit bond incorporating undertaking that they will not make request for transfer till the expiry of 10 years from their date of joining the service? Whether condition No. 3 of the bond is unconstitutional, unfair, unreasonable and opposed to public policy.

8. It is well settled that an aggrieved person is entitled to judicial review if he can show that a decision of the public authority affects him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expects to be permitted to continue to enjoy either until he is given reasons for withdrawal and the opportunity to comment on such reasons. In L.I.C. of India v. Consumer Education & Research Centre : AIR1995SC1811 their Lordships of the Supreme Court indicated thus (Para 4).

It is therefore, the settled law that if a contract or a clause in a contract is found unreasonable or unfair or irrational, one must look to the relative bargaining power of the contracting parties. In dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line contracts. This option would be either to accept the unreasonable or unfair terms or forego the service for ever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract.

9. In Shilpi Bose v. State of Bihar 1991 Supp. (2) SCC 659 it was indicated by their Lordships of the Supreme Court that-

The courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order, instead affected party should approach the higher authorities in the department.

10. Mr. R.S. Chauhan, learned Counsel appearing for some of the petitioners contended that State Government should be asked to accept Rs. 20,000/- and implement the transfer orders of the petitioners. The Government should not be permitted to back track. Reliance was placed on Bhim Singh v. State of Haryana : AIR1980SC768 wherein their Lordships of the Supreme Court observed thus-

The appellants having believed the representation made by the State and having further acted thereon cannot now be defeated of their hopes which have crystalised into rights, thanks to the application of the doctrine of promissory estoppel. Therefore it is not open to the State, according to the law laid down by this court, to back track.

11. In Brojo Nath case : (1986)IILLJ171SC it was held that the courts will not enforce and will strike down an unfair and unreasonable contract or unfair and unreasonable clause of contract, entered into between the parties who are not equal in bargaining power.

12. In view of the legal position indicated hereinabove I proceed to consider the nature of undertaking incorporated in the bond by the petitioners. Before joining the service the petitioners were asked to submit undertaking that they would not seek transfer from their place of posting and work there for a period of 10 years. In the event of breach of this condition i.e. if request for transfer is made before expiry of 10 years, they shall deposit Rs. 20,000/-with the State Treasury, learned Advocate General canvassed that now transfer policy was framed by the State Government in 1999, according to which earlier policy of accepting Rs. 20,000/- from the employees for their transfer was abandoned and only condition left in existence was that selected employee shall have to serve at his place of posting for a period of 10 years. The petitioner committed breach of undertaking and sought transfer after depositing Rs. 20,000/- Transfer orders were initially passed but subsequently in order dated June 28, 1999 condition No. 3 was imposed in the larger interest of the public that the employees who had furnished the bond not to seek transfer for a period of 10 years, their transfers would automatically stand cancelled. This condition is conscionable, fair, reasonable and based on public policy.

13. If a person asks for something it does not mean that merely by asking he will get it. If one possesses some thing it is up to him to provide or not to provide that thing to others. But one cannot prevent others from asking for it. In the instant cases even the right to ask for transfer was curtailed and the employees were directed to furnish undertaking that they would not seek transfers for a period of 10 years. The employees had two options, either to submit bond of undertaking as desired by the State Government or forego the service forever. Even the employees were asked to undertake that in case of breach they would deposit Rs. 20,000/- with the State Treasury. After the employees furnished the bonds undertaking the State Government now says that it has abandoned the condition of depositing Rs. 20,000/- with the State Treasury. To my mind, the condition in the bonds of undertaking furnished by the employees cannot be abandoned by the State Government. It has no role to play as it was the unilateral act on the part of the employees. Only the employees could abandon the condition by withdrawing the bond but they were not asked by the State Government to withdraw the bonds. Under Sub-section (8A) of Section 89 of the Act 1994 the State Government has wide powers to transfer or not to transfer its employee from a particular place but it can not prevent its employee from asking for transfer. The State Government may decline the prayer of the employee but it cannot shut his mouth. In the garb of transfer policy the State Government cannot act in arbitrary, unjust unfair and unreasonable manner. The act of State Government in asking the employees to submit bond of undertaking was against the provisions of the Act of 1994. The conditions that were asked to incorporate in the bond are unjust, unfair and unreasonable. It was a contract entered into between the parties who were not equal in bargaining power and it offends Articles 14, 16 and 21 of the Constitution of India. It is difficult to agree under this situation, with the submissions of learned Advocate General. Contention of Mr. R.S. Chauhan, learned Counsel that Government should be asked to accept Rs. 20,000/- also cannot be accepted.

14. It is no doubt true that the State Government has to look after the interest of the students and for this purpose the transfer policy of teachers in framed but such policy should not go beyond the powers provides in Sub-section (8A) of Section 89 of the Act of 1994.

15. For the reasons aforementioned I dispose of the instant writ petitions in the following terms.

(i) The bonds of undertaking submitted by the petitioners being violative of Articles 14, 16 and 21 of the Constitution of India shall stand discharged. The amount deposited by the petitioners in pursuance to the undertaking shall be refunded forthwith.

(ii) The petitioners, if they so choose, may submit representations to the Secretary, Panchayati Raj Department expressing their respective grievances. The Secretary Panchayti Raj Department shall nominate a committee to screen the representations. The committee shall act in view of the powers provided in Sub-section (8A) of Section 89 of the Act 1994 and decide the representations within a period of two months from the date of its receipt.

(iii) All interim orders passed during the pendency of the writ petitions shall stand vacated.

(iv) The parties shall bear their own costs.