T. Nandakumar Singh, J@mdashHeard Mr. V.K. Jindal, learned senior counsel assisted by Mr. S. Dey, learned counsel appearing for the petitioners and Mr. S. Sen, learned counsel for the respondents No. 1 & 2.
2. This is the second time the petitioners approached this Court for assailing the portion of the order dated 30.03.2015 of the respondents for transferring the petitioner No. 1 from North Eastern Hill University (for short ''NEHU''), Shillong to Tura Campus, NEHU as Assistant Registrar. The earlier writ petition i.e. W.P.(C) No. 73/2015 assailing the said order dated 30.03.2015 had been disposed of by passing the judgment and order dated 16.04.2015 (Annexure-19 to the writ petition) directing the Vice Chancellor, NEHU, Shillong to consider and dispose of the two representations filed by the petitioners in view of the office memorandum dated 30.09.2009 wherein and where-under, the earlier memoranda for posting of husband and wife who are working in the Govt. service at the same place for enhancement of women''s status in all walks of life and to enable them to lead a normal life so also to ensure the education and welfare of the children will be mandatory. The Vice Chancellor, NEHU, Shillong was further directed to dispose of the said two representations within two weeks from the date of receipt of a certified copy of the judgment and order and till the said representations are disposed of, the impugned order dated 30.03.2015 shall remain suspended. The relevant portions of the judgment and order of this Court dated 16.04.2015 are quoted hereunder:-
"THE HIGH COURT OF MEGHALAYA
W.P.(C) No. 73/2015
1. Shri Joseph Pullan,
S/o. (L) Shri P.P. Paily,
Deputy Registrar (Officiating),
North Eastern Hills University,
NEHU Campus, Shillong-793022.
2. Mrs. Mary Florancy C.V.,
W/o. Shri Joseph Pullan,
senior Technical Assistant,
Department of Chemistry,
NEHU Campus, Shillong-793022.
:::: Petitioners
Vs.
1. North Eastern Hills University,
NEHU Campus,
Shillong-793022,
Represented by its Registrar.
2. The Vice Chancellor,
North Eastern Hills University,
NEHU Campus,
Shillong-793022.
:::: Respondents.
BEFORE
THE HON''BLE MR JUSTICE T. NANDAKUMAR SINGH
***** ***** *****
2. The concise fact leading to the filing of the present writ petition is noted. Petitioner No. 1 married with petitioner No. 2 on 19.01.1983. Petitioner No. 2 was born on 19.03.1957 and joined the services of respondent No. 1 on 28.05.1984 as Lab Assistant in the Department of Chemistry, NEHU, Shillong and subsequently, she was promoted to the post of Senior Technical Assistant in the Department of Chemistry, NEHU, Shillong. It is also stated that the post of Senior Technical Assistant is a technical post meant for the Department of Chemistry, NEHU, Shillong only. The post of Senior Technical Assistant which is a specialized post is for a particular type of job in the Department of Chemistry; such specialized post i.e. technical post is not available at Tura Campus, NEHU. Petitioner No. 1 ever since his appointment as Assistant Registrar at Tura Campus served in that capacity at Tura from 05.03.2007 to 02.04.2014. It is also stated that during his stay at Tura, the petitioners made representations to the respondents for transferring either petitioner No. 2 to Tura Campus, NEHU or petitioner No. 1 to Shillong on medical grounds. But due to non-availability of specialized post of Senior Technical Assistant in Tura Campus, NEHU where petitioner No. 1 was working as Assistant Registrar, the petitioner No. 2 could not be transferred to Tura.
3. It is the further case of the petitioners that under the Office Memorandum being No. F. No. 28034/9/2009-Estt.(A), Govt. of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), North Block, New Delhi dated 30.09.2009 (Annexure - 6 to the writ petition), the earlier memorandums dated 03.04.1986 and 12.06.1997 for posting husband and wife who are working in the Govt. service at the same station, had been made mandatory. In other words, under the said Office Memorandum dated 30.09.2009, both husband and wife working in the Govt. Service should be posted at the same place and it would be more profitable to quote the relevant portion of the said Office Memorandum dated 30.09.2009 as hereunder:-
"F. No. 28034/9/2009-Estt.(A)
Government of India
Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training)
North Block,
New Delhi,
Dated the 30th September, 2009.
OFFICE MEMORANDUM
Subject: Posting of husband and wife at the same station.
In view of the utmost importance attached to the enhancement of women''s status in all walks of life and to enable them to lead a normal family life as also to ensure the education and welfare of the children, guidelines were issued by DOP&T in O.M. No. 28034/7/86-Estt.(A) dated 3.04.86 and No. 28034/2/97-Estt.(A) dated 12.6.97 for posting of husband and wife who are in Government service, at the same station. Department had on 23.8.2004 issued instructions to all Mins./Deptts. To follow the above guidelines in letter and spirit.
2. In the context of the need to make concerted efforts to increase representation of women in Central Government jobs, these guidelines have been reviewed to see whether the instructions could be made mandatory. It has been decided that when both spouses are in same Central Service or working in same Dept. and if posts are available, they may mandatorily be posted at the same station. It is also necessary to make the provisions at Paras 3(iv) and (vi) of the O.M. dated 3.4.86 stronger as it is not always necessary that the service to which the spouse with longer service belongs has adequate number of posts and posting to the nearest station by either of the Department may become necessary."
***** ***** *****
***** ***** *****
8. In the above factual backdrop, this writ petition is disposed of by directing the Vice Chancellor, NEHU, Shillong to consider and dispose of the said two representations keeping in view of the said Office Memorandum dated 30.09.2009 wherein and where-under, the earlier memoranda for posting of husband and wife who are working in the government service at the same place for enhancement of women''s status in all walks of life and to enable them to lead a normal life so also to ensure the education and welfare of the children will be mandatory, and also that in the present case, the petitioners No. 1 & 2 have been blessed with 2 (two) children and also that the petitioner No. 1 is suffering from heart problem and diabetes and the doctor advised the petitioner No. 1 not to stay alone and to take all necessary cardiac care. It is also made clear that an opportunity of hearing of the petitioners No. 1 & 2 in person should be available to the petitioners before disposing of the said representations by the Vice Chancellor, NEHU, Shillong by passing reasoned order and also that the whole exercise for considering and disposing of the representations should be completed within a period of 2 (two) weeks from the date of receipt of a certified copy of this judgment and order and also till the said representations are disposed of, the impugned order dated 30.03.2015, shall remain suspended."
3. In pursuance of the directions of this Court in the judgment and order dated 16.04.2015, the respondent No. 2 passed the impugned order dated 01.05.2015 rejecting the representations, filed by the petitioners for posting husband and wife (petitioner No. 1 and petitioner No. 2) at the same station, on 4 (four) grounds. For convenience, the impugned order dated 01.05.2015 (Annexure-22 to the writ petition) is quoted hereunder:-
"North Eastern Hill University
NEHU Campus Shillong - 793022 (Meghalaya)
F.14-220/Estt-II/2007-1607
Dated the 1st May, 2015.
ORDER
In compliance with the judgment and order dated 16.04.2015 passed by the Hon''ble High Court of Meghalaya in the Writ Petition W.P.(C) No. 73/2015 and after hearing Shri Joseph Pullan (petitioner No. 1) and Mrs. Mary Florancy C.V. (petitioner No. 2) in person by the Vice Chancellor on 29.04.2015, their request for posting of husband and wife at the same station is regretted on the following grounds:
1. The Office Memorandum No. 280324/9/2009-Estt.(A) dated 30th September, 2009 issued by the Department of Personnel and Training, Govt. of India on posting of husband and wife at the same station does not apply to the University suo motto as the Office Memorandum is directed towards. All India Services, Central Services and employees having all India transfer liability. Whereas the university does not even have any inter campus transfer policy in place.
2. In so far posting of Shri Joseph Pullan (petitioner No. 1) to Tura Campus is concerned, the University has never taken a decision to transfer and post Shri Joseph Pullan from Shillong to Tura Campus. Rather, it was Shri Joseph Pullan who had applied for the post of Assistant Registrar in response to the Advertisement No. F.1-4/Estt-II(B)/2006-858 dated 26.09.2006 and on having been selected he had willingly accepted the offer and decided to serve as Assistant Registrar at Tura Campus.
3. As regard health condition of Shri Joseph Pullan, it has been verified from the record that despite having heart ailment Shri Joseph Pullan has voluntarily taken up the assignment of Assistant Registrar at Tura Campus.
4. Further, there is no vacant post of Assistant Registrar lying at Shillong Campus.
In view of the above, Shri Joseph Pullan is hereby directed to report for duties at Tura Campus immediately.
(This issues with the approval of the Vice Chancellor).
Sd/-
Registrar
1. Shri Joseph Pullan,
Assistant Registrar, Tura Campus, Tura (Camp Shillong)
C/o. Mrs. Mary Florancy C.V.
Department of Chemistry,
NEHU, Shillong.
2. Mrs. Mary Florancy C.V.
Department of Chemistry,
NEHU, Shillong."
4. The petitioner No. 1, after Graduation, joined the services under the NEHU as Store In-charge in the Centre of Regional Sophisticated Instrumentation Centre (RSIC), NEHU, Shillong vide order No. RSIC/E/7/84-7117 dated 07.12.1984. Thereafter, the petitioner No. 1 was promoted and posted as Assistant in Regional Sophisticated Instrumentation Centre (RSIC) vide office order No. RSIC/E/6-2/84-7345 dated 19.12.1990. Later on, the petitioner No. 1 was appointed as Section Officer w.e.f. 09.08.2000 vide appointment order No. F.78-10/Estt/1/Apptt/98-291 dated 06.12.2000. On the recommendation of the Selection Committee, the respondent No. 2 vide letter No. F.14-220/Estt-22/2007-176 dated 28.02.2007 made an offer of appointment to the petitioner No. 1 to the post of Assistant Registrar in Tura Campus, NEHU, which was accepted by the petitioner No. 1. Pursuant to the said offer of appointment, the petitioner No. 1 joined the post of Assistant Registrar in Tura Campus, NEHU on 05.03.2007. It is the further case of the petitioner No. 1 that though he joined the post of Assistant Registrar at Tura Campus, NEHU, he is the Assistant Registrar of NEHU for all purposes and the petitioner No. 1 is due to retire in the month of February, 2019 and petitioner No. 2 is due to retire in the month of March, 2017.
5. The petitioner No. 1 married with petitioner No. 2 on 19.01.1983 and they have two children who are pursuing their studies in Medicine. The petitioner No. 2 joined the services of NEHU on 28.05.1984 as Lab Assistant in the Department of Chemistry, NEHU, Shillong and subsequently, she was promoted to the post of Senior Technical Assistant in the Department of Chemistry, NEHU, Shillong. The post of Senior Technical Assistant is a technical post meant for the Department of Chemistry, NEHU, Shillong only. It is also a specialized post for a particular type of job meant for the Department of Chemistry, NEHU, Shillong. There is no such technical Department at Tura Campus where the petitioner No. 2 could be posted as Senior Technical Assistant. The petitioner No. 1 ever since his appointment as Assistant Registrar at Tura Campus, NEHU, served in that capacity at Tura Campus from 05.03.2007 to 02.04.2014 and during his stay at Tura Campus, the petitioner No. 1 and petitioner No. 2 filed representations to the respondents for transferring either the petitioner No. 2 at Tura or petitioner No. 1 at Shillong on medical ground and also as per the earlier guidelines dated 12.06.1997 (posting of husband and wife at the same station) at a time when the said directions were only directory in nature. In view of utmost importance attached to the enhancement of women''s status in all walks of life and to enable them to lead a normal life as also to ensure the education and welfare of children, guidelines were issued by the DOP&T in O.M. No. 28034/7/86-Estt.(A) dated 03.04.1986 and No. 28034/2/97-Estt(A) dated 12.06.1997 for posting of husband and wife who are in Govt. service, at the same station. On 23.08.2004 instructions were issued to all Ministries/Departments to follow the same guidelines in letter and spirit. Again, office memorandum F. No. 28034/9/2009-Estt.(A) dated 30.09.2009 was issued containing consolidated guidelines and made the same as mandatory. Paras 1-4 of the said office memorandum dated 30.09.2009 (Annexure-6 to the writ petition) read as follows:-
"F. No. 28034/9/2009-Estt.(A)
Government of India
Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training)
North Block,
New Delhi,
Dated the 30th September, 2009.
OFFICE MEMORANDUM
Subject: Posting of husband and wife at the same station.
In view of the utmost importance attached to the enhancement of women''s status in all walks of life and to enable them to lead a normal family life as also to ensure the education and welfare of the children, guidelines were issued by DOP&T in O.M. No. 28034/7/86-Estt.(A) dated 3.04.86 and No. 28034/2/97-Estt.(A) dated 12.6.97 for posting of husband and wife who are in Government service, at the same station. Department had on 23.8.2004 issued instructions to all Mins./Deptts. To follow the above guidelines in letter and spirit.
2. In the context of the need to make concerted efforts to increase representation of women in Central Government jobs, these guidelines have been reviewed to see whether the instructions could be made mandatory. It has been decided that when both spouses are in same Central Service or working in same Dept. and if posts are available, they may mandatorily be posted at the same station. It is also necessary to make the provisions at Paras 3(iv) and (vi) of the O.M. dated 3.4.86 stronger as it is not always necessary that the service to which the spouse with longer service belongs has adequate number of posts and posting to the nearest station by either of the Department may become necessary.
3. On the basis of the 6th C.P.C. Report, Govt. servants have already been allowed the facility of Child Care Leave which is admissible till the children attain 18 years of age. On similar lines, provisions of O.M. dated 12.6.97 have been amended.
4. The consolidated guidelines will now be as follows:-
(i) Where the spouses belong to the same All India Service or two of the All India Services, namely, IAS, IPS and Indian Forest Service (Group ''A'');
The spouse may be transferred to the same cadre by providing for a cadre transfer of one spouse to the Cadre of the other spouse, on the request of the member of service subject to the member of service not being posted under this process to his/her home cadre. Postings within the Cadre will, of course, fall within the purview of the State Govt.
(ii) Where one spouse belongs to one of the All India Services and the other spouse belongs to one of the Central Services:-
The cadre controlling authority of the Central Service may post the officer to the station or if there is no post in that station, to the State where the other spouse belonging to the All India Service is posted.
(iii) Where the spouses belong to the same Central Service:
The cadre controlling authority may post the spouses to the same station.
(iv) Where the spouse belongs to one Central Service and the other spouse belongs to another Central Service:
The spouse with the longer service at a station may apply to his/her appropriate cadre controlling authority and the said authority may post the said officer to the station or if there is no post in that station to the nearest station where the post exists. In case that authority, after consideration of the request, is not in a position to accede to the request, on the basis of non-availability of vacant post, the spouse with lesser service may apply to the appropriate cadre authority accordingly, and that authority will consider such requests for posting the said officer to the station or if there is no post in that station to the nearest station where the post exists.
(v) Where one spouse belongs to an All India Service and the other spouse belongs to a Public Sector Undertaking:
The spouse employed under the Public Sector Undertaking may apply to the competent authority and said authority may post the said officer to the station, or if there is no post under the PSU in that station, to the State where the other spouse is posted.
(vi) Where one spouse belongs to a Central Service and the other spouse belongs to a PSU:
The spouse employed under the PSU may apply to the competent authority and the said authority may post the officer to the station or if there is no post under the PSU in that station, to the station nearest to the station where the other spouse is posted. If, however, the request cannot be granted because the PSU has no post in the said station, then the spouse belonging to the Central Service may apply to the appropriate cadre controlling authority and the said authority may post the said officer to the station or if there is no post in that station, to the station nearest to the station where the spouse employed under PSU is posted.
(vii) Where one spouse is employed under the Central Govt. and the other spouse is employed under the State Govt.:
The spouse employed under the Central Govt. may apply to the competent authority and the competent authority may post the said officer to the station or if there is no post in that station to the State where the other spouse is posted.
(viii) The husband & wife, if working in the same Department and if the required level of post is available, should invariably be posted together in order to enable them to lead a normal family life and look after the welfare of their children especially till the children attain 18 years of age. This will not apply on appointment under the central Staffing Scheme. Where only wife is a Govt. servant, the above concessions would be applicable to the Govt. servant."
6. The petitioner No. 1 and No. 2 are in the services of NEHU, which is a Central University. Further, there is vacancy in the post of Deputy Registrar/Assistant Registrar for petitioner No. 1 in Shillong whereas, there is no vacancy in the post of Senior Technical Assistant at Tura Campus for petitioner No. 2. The petitioner No. 1 was appointed as Deputy Registrar (officiate) on temporary basis and was posted at NEHU, Shillong vide office order No. F.9-20/Estt-II(B)/2012-2145 dated 31.03.2014 and pursuant to that order, the petitioner No. 1 took charge for the post of Deputy Registrar (officiate), NEHU, Shillong w.e.f. 02.04.2014. After joining the said post i.e. Deputy Registrar (officiate), NEHU, Shillong, the respondents issued a Corrigendum vide No. F.9-20/Estt-II(B)/2012-2149 dated 04.04.2014, whereby officiating appointment of the petitioner No. 1 to the post of Deputy Registrar was made for a period of one year from the date of assumption of charge as Deputy Registrar, NEHU, Shillong. The petitioner No. 1 is a patient of Ischemic Heart Disease & Uncontrolled Diabetes Mellitus and he is advised to be in a locality with good cardiac care facility and with family members to take care of him and in this respect, the petitioner No. 1 was examined by Christian Medical College and Hospital, Vellore in the Department of Cardiology, Department of Endocrinology on being recommended by the Doctor of the University. The petitioner No. 1 also annexed the medical certificates dated 14.01.2010, 14.01.2010, 09.07.2012 and 13.07.2012 as Annexures 10, 11, 12 & 13 respectively to the writ petition. The posts of Deputy Registrar are to be filled up by direct recruitment and by promotion in the ratio of 75% by direct recruitment and 25% by promotion. Assistant Registrar, on completion of 8 (eight) years of regular service, will be eligible for promotion to the post of Deputy Registrar. The petitioner No. 1 became eligible for promotion to the post of Deputy Registrar w.e.f. 05.03.2015 but the respondents in order to deprive his right to the post of Deputy Registrar did not hold any DPC. Further, there are vacancies both in the post of Assistant Registrar and Deputy Registrar at Shillong. By the order F. No. 9-20/Estt-II(B)/2012-1582 dated 30.03.2015, the officiating appointment of the petitioner No. 1 as Deputy Registrar had been terminated w.e.f. 01.04.2015 and relieved him from the post of Deputy Registrar (officiating) w.e.f. 01.04.2015 and directed him to resume his duties as Assistant Registrar in Tura Campus, NEHU. The petitioner No. 1 was granted medical leave w.e.f. 31.03.2015 for a period of 15 days by the Medical Officer, NEHU, Shillong.
7. The petitioners had filed the representations requesting the respondents to allow the petitioner No. 1 to stay at Shillong along with his family on medical ground in view of the office memorandum dated 30.09.2009. As the said representations were not considered by the respondents, the petitioners approached this Court by filing the writ petition i.e. W.P.(C) No. 73/2015 for assailing the said order dated 30.03.2015 and the said writ petition was disposed of by passing the judgment and order dated 16.04.2015. Pursuant to the directions of this Court in the judgment and order dated 16.04.2015 passed in W.P.(C) No. 73/2015, the respondent No. 2 passed the impugned order dated 01.05.2015. As stated above, the representations filed by the petitioners had been rejected vide the impugned order dated 01.05.2015 on 4 (four) grounds. The first ground was that the office memorandum dated 30.09.2009 does not apply to the University i.e. NEHU and the University does not even have any inter campus transfer policy in place. Therefore, from the first ground, it is the clear case of the respondents that the said office memorandum dated 30.09.2009 is not applicable to the University and also the University does not even have any inter campus transfer policy. The petitioners had pleaded categorically in the writ petition that the respondents vide order No. 53-4/Estt-I/Apptt/2007-83 dated 22.08.2008, transferred Shri S. Chakraborty, Assistant Registrar and his wife Smt. S. Chakraborty, LDC, NEHU, Tura Campus to Shillong Campus in terms of GOI Rule on posting of husband and wife at the same station. The said order dated 22.08.2008 (Annexure-25 to the writ petition) reads as follows:-
"NORTH EASTERN HILL UNIVERSITY
NEHU, Campus, Shillong-793022 (Meghalaya)
No. 53-4/Estt-I/Apptt/2007-83/
Dated 22nd August, 2008
ORDER
Consequent upon the promotion of Shri S Chakraborty, Section Officer, NEHU, Tura Campus, Tura to the post of Assistant Registrar and his subsequent transfer to the Headquarters on promotion and in terms of G.O.I. Rule on posting of husband and wife at the same station, Smt. S. Chakraborty, LDC, NEHU, Tura Campus, Tura is hereby transferred to the Headquarters in the same capacity and with immediate effect. She is to report to the Establishment I (Appointment) Section till her place of posting is arranged.
(emphasis supplied)
This issues with the orders of the Registrar.
Sd/-
Deputy Registrar, Estt. I
Copy to:-
1. The Pro-Vice Chancellor, NEHU, Tura Campus, Tura for kind information. Pending posting of a regular substitute an LDC may be appointed on Contract Basis in consultation with the Administration Section as a stop gap arrangement.
2. The Finance Officer, NEHU, Shillong.
3. The Deputy Registrar, NEHU, Tura Campus, Tura for information with reference to his letter No. TC/Estt/PF/C-5/96-279 dated 4/7/08.
4. The Deputy Registrar (Planning), NEHU, Shillong in view of the fact that no one from amongst the LDCs in the Headquarters is willing to go to Tura Campus on mutual inter campus transfer and since the regular post of LDC held by Smt. Chakraborty cannot be taken away from Tura Campus, the matter of creation of an additional post of LDC for Tura Campus may kindly be taken up with the UGC/MHRD as early as possible.
(emphasis supplied)
5. The Assistant Registrar, Admn. I Section.
6. The Section Officer (Salary), Finance Deptt., NEHU, Shillong.
7. The Section Officer, Estt. I (Per), NEHU, Shillong."
The respondents vide order No. F.Dy.Regr/Misc. File/Estt.II/120 dated 05.06.2000, transferred Shri L. Marbaniang, Deputy Registrar (Estt. I) from Shillong Campus to Tura Campus and Shri J.N. Nayak, Deputy Registrar from Tura Campus to Shillong. By another office order No. F.14-179/Estt-II/96-139 dated 19.12.1996, Dr. D.K. Tiwari, Deputy Registrar was posted from Tura Campus to Shillong Campus. It is the further case of the petitioners that the contention of the respondents in the first ground of the impugned order dated 01.05.2015, that the University does not even have any inter campus transfer policy in place is not at all correct on the face of the said orders dated 05.06.2000 and 19.12.1996.
8. The respondents filed affidavit-in-opposition. In para 14 of the affidavit-in-opposition of the respondent No. 1, it is stated that the said order dated 22.08.2008 was passed as there was a vacancy further with mutual consent. However, at times such instructions were being followed after duly taking into consideration the nature of such instructions and if the application of the same does not cause any administrative inconvenience. The relevant portions of para 14 of the affidavit-in-opposition of the respondent No. 1 read as follows:-
"14. That with regard to the averment made in paragraph A(II) of the writ petition the deponent begs to state that the transfer effected by order dated 22 August 2008 in the post of LDC as there was a vacancy and further with mutual consent. It may be stated that transfer policies/guidelines/instructions for Central Service and services with All India Transfer Liability is not suo-moto applicable to the University. However, at times such instructions are being followed after duly taking into consideration the nature of such instruction and if the application of the same does not cause any administrative inconvenience. It is specifically stated that the instructions contained in the memo dated 30th September 2009 has never been adopted and followed by the University and no transfer has ever been effected by the University pursuant to the said memo. ....."
9. The respondents-university has taken all together a different stand in para 12 of the affidavit-in-reply filed in Misc. Case No. 98/2015 that the request of Mr. S. Chakraborty was considered on administrative convenience and she has been brought to Shillong along with the post. This again tantamount of mala fide exercise of power. The University is changing their stand from time to time. At one time in para 14 of the affidavit-in-opposition of the respondents-university stated that "however at times such instructions i.e. instruction for transfer of husband and wife at the same place were being followed after duly taking into consideration the nature of such instructions if the application of the same does not cause any administrative inconvenience" and also that "the transfer effected by the order dated 22.08.2008 in the post of LDC as there was a vacancy and further with mutual consent." In the present case, it is not the case of the respondents-university that administrative inconvenience will cause in case of transferring the petitioners i.e. husband and wife at the same place i.e. NEHU, Shillong.
Principle of approbation and reprobation:-
Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn around and say it is void for the purpose of securing some other advantage. For this principle, it would be sufficed to refer to the following cases:-
(i)
(ii)
(iii)
(iv)
(v)
(vi)
Paras 11 & 12 of the SCC in Joint Action Committee of Air Line Pilots'' Association of India case (Supra) read as follows-
"11 In
"10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that ''a person cannot say at one time a transaction is valid and thereby obtain some advantage, to which he could not (sic) only be entitled on the footing that it is valid and then turn around and say it is void for the purpose of securing some other advantage''."
12. The doctrine of election is based on the rule of estoppel-the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow and cold by taking inconsistent stands and prolong proceedings unnecessarily. [Vide
10. It is fairly settled law that practice consistently followed i.e. past practice cannot be discarded against the employees of the same employer to deprive them of the benefits of the past practice and that cannot be two different practices relating to the employees of the same employer according to "doctrine of past practice". The Apex Court in
"25. On the question of acting on the basis of the past practice for the purpose of appointment or promotion, Ms. Dikshit referred to the decision of this Court in
32. While considering the said question, this Court in
41. It is on account of a deliberate decision taken by the State Government that the private respondents were left out of the zone of consideration for appointment as Pharmacists in order to accommodate those who had obtained their diplomas earlier. The decision taken by the State Government at that time to accommodate the diploma-holders in batches against their respective years can no doubt be discontinued at a later stage, but not to the disadvantage of those who had been deprived of an opportunity of being appointed by virtue of the same Rules. In our view, the same decision which was taken to deprive the private respondents from being appointed, could not now be discarded, once again to their disadvantage to prevent them from being appointed, introducing the concept of merit selection at a later stage. The same may be introduced after the private respondents and those similarly situated persons have been accommodated.
43. As indicated hereinbefore, in this case a certain set of rules were applied in a manner which deprived the private respondents of an opportunity to be considered for appointment as Pharmacists, despite having acquired the requisite qualification and being deprived of appointment once again by discarding the same rules to their detriment. In our view, the decision in
The democratic form of Govt. demands equality and absence of arbitrariness and discrimination. [Ref:
11. Another ground for passing the impugned order dated 01.05.2015 is that there is no vacant post of Assistant Registrar at Shillong. It is categorically pleaded in the writ petition that vide notification dated 26.08.2003 of NEHU, there are 11 (eleven) numbers of sanctioned posts of Assistant Registrar and all the 11 (eleven) posts are in operation. There is no bifurcation of 11 (eleven) numbers of posts between Shillong Campus and Tura Campus. One Smt. J. Chyne retired as Assistant Registrar from the service of NEHU, Shillong Campus but after retirement, she had been reappointed on contract basis as Special Officer and further extension was asked by the Finance Officer vide No. FO.38/NEHU/2010/1643 dated 02.03.2015 on the ground that no substitute Assistant Registrar could be provided immediately. The said letter of the Finance Officer dated 02.03.2015 (Annexure 37 to the writ petition) reads as follows:-
"NORTH EASTERN HILL UNIVERSITY
SHILLONG
No. FO.38/NEHU/2010/1643
March 02, 2015
To,
The Registrar,
North Eastern Hill University, Shillong
Sub: Request for another extension of contract appointment in respect of Smt. J. Chyne, Retired Assistant Registrar.
Sir,
I am to request you to kindly consider and approve another extension of 3 (three) months on the contract appointment of Smt. J. Chyne as Special Officer in this Department because it is understood that no substitute Assistant Registrar could be provided immediately and moreover, if provided it would take about a month or so for the new incumbent to pick up the work.
Yours faithfully,
Sd/-
(N.G. Marwein)
Finance Officer"
It is also stated in the writ petition that the respondents had denied the rights of the writ petitioners for posting at the same place in order to accommodate Smt. J. Chyne on contract basis and also the respondents had completely lost sight of the fact that no administrative inconvenience shall cause to the university in case of allowing the petitioner No. 1 to work as Assistant Registrar, NEHU, Shillong in the vacant post of Assistant Registrar vacated by Smt. J. Chyne.
12. In para 5 of the affidavit-in-opposition of the respondents-NEHU, it is stated that the University, outside Shillong, having its only Campus at Tura. Tura Campus of the University has its own sanctioned post of staff both teaching and non-teaching. Since the University does not have any inter campus transfer policy, the vacancies/posts in Tura Campus are normally filled up either by direct recruitment or promotion. However, there were few cases when a regular incumbent from Tura Campus was brought to Shillong as there were suitable available posts and that the incumbent at Shillong ready and willing to go to Tura Campus. It is the further case of the petitioners that there is no requirement of an employee at Shillong ready to go to Tura Campus in case of transferring of an employee from Tura Campus to Shillong Campus.
13. The letter dated 18.07.2006 of the UGC (Annexure-C to the affidavit-in-reply) shows that one post of Assistant Registrar for Tura Campus was created and consequently the University had issued the notification dated 14.11.2006 (Annexure-D to the affidavit-in-reply). The E.C. Resolution No. EC:118:2004:6: (Annexure-B to the affidavit-in-reply) by which the E.C. had accepted the recommendation of the Selection Committee for appointment of Mr. S. Myrchiang to the post of Assistant Registrar and resolved that "this appointment is made for NEHU, Tura Campus, Tura". According to the learned counsel for the respondents-NEHU, the said resolution had created the post of Assistant Registrar at Tura Campus and thus, he argued that there are two sanctioned posts of Assistant Registrar at Tura Campus. The learned counsel for the respondents-NEHU could not show any related sanction letter of the MHRD/UGC by which a post of Assistant Registrar was created for Tura Campus only. The said resolution only indicates that Mr. S. Myrchiang was appointed to the post of Assistant Registrar and was posted to Tura Campus. The learned counsel for the respondents-NEHU failed to establish that there are two sanctioned posts of Assistant Registrar at Tura Campus.
The office order dated 28.04.2015 (Annexure-31 to the writ petition) issued by the Vice Chancellor, NEHU indicates the reallocation of duties and responsibilities of the Deputy Registrar and Assistant Registrar of NEHU. But however, the said office order does not indicate the duties and responsibilities of the Deputy Registrar/Assistant Registrar at Tura Campus. Further, it also indicates the names of 10 (ten) Assistant Registrars, who are occupying the posts of Assistant Registrar in different sections of NEHU, Shillong Campus. It also shows that Smt. T. Dkhar and Smit. K. Nongsiej were promoted to Assistant Registrar on 10.04.2015 and stand posted in Finance Department and Examination Department respectively. The contention of the learned counsel for the petitioners is that even if 10 (ten) posts are occupied, there is still 1 (one) vacant post of Assistant Registrar in Shillong Campus. Annexure-37 to the writ petition, Annexure-44 to the affidavit-in-opposition of the petitioners in Misc. Case No. 98/2015, Annexure-6 to the affidavit-in-opposition of the respondent No. 1 and Annexure-1 to the rejoinder affidavit of the petitioners clearly indicate that one Smt. J. Chyne, who was working as Assistant Registrar in the Finance Department of NEHU, Shillong proceeded on retirement on 31.12.2013 and the said post fell vacant.
Annexure-40 to the affidavit-in-opposition of the petitioner in Misc. Case No. 98/2015 shows that one Shri B.C. Dey, Section Officer, Tura Campus was promoted on officiating basis as Assistant Registrar, Tura Campus against the regular vacant post of Assistant Registrar at Tura Campus since 06.05.2014 and he is continuing as Assistant Registrar, Tura Campus.
14. The question whether the transfer was in public interest or due to administrative reason requires factual adjudication. From the above factual adjudication, it appears that the two reasons for passing the impugned order dated 01.05.2015 i.e. (i) there is no past practice of following the transfer policy of posting of husband and wife at the same place in NEHU and also (ii) non-availability of vacant post of Assistant Registrar at NEHU, Shillong are arbitrary and perfunctory based on no reasons and evidences. The Apex Court in
"9. ..... The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon the peculiar facts and circumstances of the case concerned. ....."
The Apex Court in
"21. ..... It is not the law that mala fides in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (
15. The statutory authority having exercised its jurisdiction in favour of an employee cannot deny a similar benefit to the other employee. The Apex Court in
"29. A statutory authority or an administrative authority must exercise its jurisdiction one way or the other so as to enable the employees to take recourse to such remedies as are available to them in law, if they are aggrieved thereby. The question which, however, arises for consideration is as to whether having exercised its jurisdiction in favour of a class of employees, a statutory authority can deny a similar relief to another class of employees. In a case of this nature, in our opinion, the writ court was entitled to declare such a stand taken by the statutory authority as discriminatory on arriving at a finding that both the classes are entitled to the benefit of a statutory rule."
Fairness in action is now an established test to judge the validity of State actions. [Ref:-
"16. It was also contended that not a single branch of NBI was closed down as a result of amalgamation and, therefore, it was really unnecessary to transfer any workman employee of NBI. Only the employees of NBI were transferred and that would indicate that impugned transfers were made either to accommodate employees of PNB or for some other considerations. Thus the transfer orders were either arbitrary or discriminatory and so they were rightly declared as illegal and bad. In support of his contention that in cases where both the transferor and transferee are State or State instrumentalities, it is open to the court to review whether the terms and conditions of the transfer ensure "fairness in action" and non-arbitrariness, Dr. Dhawan relied upon the decision of this Court in
16. The Apex Court in
"16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.
21. For appreciating the effect of such an order, we may also notice the order dated 19-10-2005 which has been reproduced by the High Court in its impugned judgment, the relevant portion whereof reads thus:
"2. As per Para 9.1 of the New Transfer Policy, the Government may, if necessary in public interest, transfer or post any officer to any station or post. Para 9.2 of the policy stipulates that an officer against whom the CVC has recommended initiation of vigilance proceedings, should not normally be posted or remain posted at the station where the cause of the vigilance proceedings originated. He shall also not be posted on a ''sensitive'' charge. This restriction will remain in operation till such time the vigilance matter is not closed.
3. In the case of Shri Tiwari, he belongs to Madhya Pradesh and on enquiry into complaint of working on caste biased ideology he was to be over dependent upon a set of officers, apparently giving an impression that he (is) working on caste biased ideology. These circumstances have necessitated his transfer from Bhopal Central Excise Commissionerate to Shillong Commissionerate."
No vigilance enquiry was initiated against him. The order of transfer was passed on material which was non-existent. The order therefore, not only suffers from total non-application of mind on the part of authorities of Respondent 1, but also suffers from malice in law.
24. We, keeping in view the fact that on the one hand the appellant did not join his posting at Ahmedabad, although no order of stay was passed and on the other wholly unwarranted and reprehensible conduct on the part of the authorities of the respondents, are of the opinion that interest of justice would be subserved if during the period from 28-12-2005 till his joining his post at Bhopal, the appellant is treated to be on leave and the respondents are directed to pass an appropriate order invoking the leave rules applicable in this behalf. It is ordered accordingly.
25. The impugned judgment of the High Court is modified to the aforesaid extent. The appeal is allowed to the aforementioned extent. The respondents shall bear the costs of the appellant. Counsel''s fee assessed at Rs. 50,000."
17. For the foregoing factual adjudication keeping in view of the ratio decidendi of the cases discussed above, this Court is of the considered view that the impugned order dated 01.05.2015 is a perfunctory one. This Court further observed that the respondents (University) had changed their case from time to time in their affidavit-in-opposition and rejoinder affidavit contrary to the contents of their orders discussed above. Accordingly, this Court has no alternative except to interfere the impugned order dated 01.05.2015. Thus, the impugned order dated 01.05.2015 and the portion of the order dated 30.03.2015 directing the petitioner No. 1 to resume duties at Tura Campus are hereby set aside and quashed.
18. Writ petition is allowed.
19. Parties are to bear their own costs.
