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2015 Supreme(HP) 1982
IN THE HIGH COURT OF HIMACHAL PRADESH
MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN, JJ.
Desh Raj And Others - Appellant
Versus
Chaudhary Shrawan Kumar Himachal Pradesh Krishi Vishvavidyalaya - Respondent
CWP No. 1098 of 2015 a/w CWP Nos. 3238 of 2014, 1099, 1102, 1103, 1104, 1105, 1106, 1107, 1108, 1109, 1110, 1124, 1617, 1622, 1624, 1658, 1743, 1744, 1745, 1748, 1749, 1750, 1755, 1756, 1757 and 1758 of 2015
Decided on : 04-06-2015
For the Appellant : Ajay Kumar Dhiman,
For the Respondent:B.M. Chauhan, Advocates
Consent for secondment can be implied from the conduct of the employee, and immediate challenge to secondment orders differs from cases where employees have already joined the new positions.
Headnote:
Secondment - Service Transfer - H.P. Universities of Agriculture, Horticulture and Forestry Act, 1986, Section 9 - Summary: The court considered the legality of secondment orders under the Act. It discussed the provisions of the Act, the power of the Vice Chancellor to send employees on secondment, and the requirement of obtaining consent for secondment. The court relied on precedents to establish that consent for secondment can be implied from the conduct of the employee. The judgment differentiated between cases where employees immediately challenged the secondment orders and cases where employees had already joined the new positions.
Fact of the Case:
The petitioners challenged secondment orders under the H.P. Universities of Agriculture, Horticulture and Forestry Act, 1986, alleging lack of consent for transfer. The respondents justified the secondment citing financial crisis and statutory provisions.
Finding of the Court:
The court dismissed the first set of petitions where employees had already joined the new positions without objection. It allowed the second set of petitions where employees immediately challenged the secondment orders, quashing the orders and stating that consent for secondment can be implied from the conduct of the employee.
Issues: Legality of secondment orders under the Act, requirement of obtaining consent for secondment, differentiation between cases of immediate challenge and cases of joining without protest.
Ratio Decidendi: Consent for secondment can be implied from the conduct of the employee. Immediate challenge to secondment orders differs from cases where employees have already joined the new positions.
Final Decision: First set of petitions dismissed, second set of petitions allowed, and the impugned orders of secondment quashed and set aside.
JUDGMENT :
Tarlok Singh Chauhan, J.
Since these petitions can be disposed of by a common judgment, therefore, they are being taken up together for disposal.
2. This batch of writ petitions can be categorized into two sets. One set pertains to the cases where the petitioners were sent on secondment and have joined without raising any objection. This set comprises of the following writ petitions:
"CWP Nos. 1617, 1622, 1624, 1658, 1743, 1744, 1745, 1748, 1749 and CWP No. 1750 of 2015."
3. The second set of petitions is those where the petitioners immediately on the issuance of order of secondment, approached this Court and obtained interim relief. This set comprises of the following writ petitions:
"CWP Nos. 1098 of 2015, 3238 of 2014, 1099, 1102, 1103, 1104, 1105, 1106, 1107, 1108, 1109, 1110, 1124, 1755, 1756, 1757 and 1758 of 2015."
4. It is not in dispute that in all these cases the petitioners are beldars whose services have been placed beyond the parent cadre by way of secondment.
5. The challenge to these orders of secondment is common to both sets of petitions and it is alleged that the impugned order(s) is/are illegal, arbitrary and unconstitutional on the ground that the petitioners consent was not obtained before ordering their transfer on secondment basis.
6. In response to the petition, the respondents have filed the reply wherein it has been alleged that the Government of Himachal Pradesh in accordance with the provisions of Section 9 of the H.P. Universities of Agriculture, Horticulture and Forestry Act, 1986 (for short 'Act') has constituted a Council for Education and Research to be called "The Himachal Pradesh Council of Agricultural, Horticultural and Forestry Education and Research", (for short 'Council'), who in its meeting held on 28.7.2012 had vide item No. 13 decided that the total core strength of the University be fixed at 1403 which includes the core strength of category 'D' staff as 250 only. It is pointed out that the University is facing acute financial crisis and has therefore to reduce its establishment cost.
7. As per the decision of the Council, the respondent University declared 200 category 'D' and 'C' employees surplus and sent list of 185 category 'D' employees and 15 category 'C' employees to the Additional Chief Secretary (Agriculture) to the Govt. of H.P. in the first phase. Out of the above list, 175 category 'D' and 10 category 'C' employees had been placed on secondment basis with the various departments of H.P.
8. Thereafter, since the working strength of the category 'D' employees in the University happens to be more than the fixed core strength of 250 and there was again communication from the Government to reduce the establishment cost, 289 more category 'D' employees were declared surplus in the second phase, out of which 146 employees have been ordered to be placed on secondment basis with the various departments of the Government. As per the requirement of Engineer-in-Chief (Project), IPH Department, Fatehpur, District Kangra, vide his letter dated 15.1.2015, 39 category 'D' employees including the petitioners had been placed on secondment basis with the Swan River Flood Management Project, Circle Una, H.P.
9. It is further contended that as per the appointment letter of the petitioners, their service condition are to be governed by the Act, Statutes and Rules/Regulations framed from time to time. There is no provision in the Act and Statute of the University to obtain any consent for placement on deputation/secondment/foreign service. However, as per Clause 7.11 (iv) of the Statutes, Vice Chancellor may send any employee/teacher of the University on deputation/secondment/foreign service. Since the University is facing acute financial crisis as such keeping in view this aspect the services of the petitioners had been placed on secondment basis and, therefore, the same is legal and valid and not contrary to the provisions of law.
10. We have heard the learned counsel for the parties and have
