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HIGH COURT OF MADHYA PRADESH
Mr. Justice Aran Mishra, Mr. Justice K.K. Lahoti and Mr. Justice Rajendra Menon
ASHOK TIWARI
Versus
MP. TEXT BOOK CORPORATION
W.P. No. 1967/2003 Of
Decided On : Apr 20,2010
From the aforesaid, it would be clear that a daily rated employee does not hold a post as he is not appointed in terms of the provisions of the Act and rules framed there under. It is, therefore, clear from a perusal of the principles laid down in the aforesaid cases that a daily rated employee does not hold a post and his appointment is not made on a sanctioned post or post created as per the rules after following the due procedure contemplated for appointment to the post.
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. AIR 1967 SC 884, (1977)3 SCC 94, (1995)2 SCC 532, 2000(3) MPHT 256, (2003)6 SCC 123, (2004)7 SCC 405,2006(2) JLJ 1,2006(2) JLJ 24, (1996)11 SCC 77, (2006)2 SCC 716, (2006)2 SCC 702, 2002(4) MPLJ 33, (2001)8 SCC 574, AIR 2006 SC 1165 and (2009)5 SCC 65 followed. 1974(2) SLR 110 discussed. 2000(3) MPHT 256 and 2002(4) MPLJ 33 relied on. 1994(II) MPWN 38 held not good law. [Paras 18, 23, 26 & 27
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Rajendra Menon, J.
( 1. ) While hearing the present writ petition pertaining to transfer of a daily rated employee, the Writ Court found that the principles laid down by a Division Bench of this Court, in the case of Udai Singh Yadav Vs. Depot Manager, MPSRTC, 1994(2) MPWN pg. 50 SN 38, warrants reconsideration due to reasons indicated in the order-dated 23.7.2003 and, therefore, the following reference is made to this Bench. The questions requiring consideration as indicated by the learned Single Judge are:
"(i) Whether a daily rated employee, who is not governed by any service rules, can be transferred from one place to another? OR (ii) Whether his services are transferable? OR (iii) In case of transfer, what emoluments will be available to him and whether on this ground, he is entitled to any protection under the Rules?"
( 2. ) Facts, in brief, necessary for answering the aforesaid question indicates that the petitioner herein was employed in the M.P. Text Book Corporation, Bhopal as a daily rated employee. He was assigned duties in the Library as an Incharge and while so working it was found that he has acted in a manner unbecoming of an employee, in as much as he was found to be taking out photocopies of certain important documents, in an unauthorized manner. In view of the above, vide Annexure P/12 dated 4.4.2003, he was transferred from the Head Office of the Corporation i.e.. from Bhopal to Panna Depot.
( 3. ) The writ petition in question is filed assailing the aforesaid order of transfer. During the course of hearing of the Writ Petition, on 23.7.2003 before the Writ Court, petitioner assailed the transfer mainly on the ground that he is a daily rated employee, inspite of certain orders passed in an earlier writ petition filed by him being W.P.No.800/2000, he has not been regularized and he continues to be a daily rated employee. Accordingly, contending that he is not holding any post and the terms and conditions of his appointment do not permit for his transfer from one place to another, challenge was made to the order of transfer. Placing reliance on certain judgments indicating the status of a daily rated employee, it was argued before the learned Single Judge (Writ Court) that a daily rated employee, does not hold any post, therefore, cannot be transferred from one place to another. The contention advanced by the petitioner was refuted on behalf of the respondents before the learned Single Judge, by pointing out that petitioner had been working at one place i.e... at Bhopal, since the last 13 years, he is being transferred because of certain administrative exigency and placing reliance on the Division Bench judgment of this Court, in the case of Udai Singh Yadav (supra), it was argued that transfer of the petitioner is proper and permissible.
( 4. ) After considering the rival contentions, learned Single Judge found that a daily rated employee does not hold any post, the legal rights available to him were limited and keeping in view certain principles laid down by a Bench of this Court, in the case of Tilak Singh Tomar Vs. State of MP and others, 2000(2) MPLJ 249, the learned Single Judge found that transfer of a government servant is permissible only when he is appointed to a cadre of transferable post and whose case transfer is an ordinary incident of service, which does not result in any alteration of the condition of service to the disadvantage of the employee. It was found by the learned Single Judge that in the present case, petitioner was a daily rated employee, he is not regularized and no service rules are applicable to the petitioner, he is getting a meagre emolument as fixed by the Collector and there is no rule showing that in the establishment of the respondent a daily rated employee is holding a post, which is transferable. Prima facie finding that an employee, who does not hold a post and to whom no rules are applicable, cannot be transferred and observing that the principle laid down in this re
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