IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. No. 3437 of 2010. Decided on: 28.06.2010. Anuradha Garg ….Petitioner Versus State of H.P. & Others. …Respondents Coram The Hon’ble Mr.Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? 1 Yes For the petitioner. : Mr. K.S. Banyal, Advocate. For the respondents. : Mr. R.K. Sharma, Senior Additional Advocate General, for respondents No.1to 3. Mr. Rupinder Singh Thakur, Advocate. for respondent No.4. Justice Kurian Joseph, C.J. (Oral): Eligibility versus entitlement in the matter of transfer is the issue arising for consideration in this case. 2. The petitioner is regularly appointed as Lecturer Hindi and presently she is working in Govt. Senior Secondary School, Sarahan. She is aggrieved since she has been transferred to Govt. Senior Secondary School, Bagthan. It is submitted that transfer is made only to accommodate the 4th respondent, who is working as Para Teacher at Govt. Senior Secondary School, Bagthan. It is the contention of the - 2 - petitioner that 4th respondent, who has been engaged on contract basis against a post in a particular school cannot be transferred to the school where the petitioner is working so as to disturb her by transferring to another place. 3. The learned Senior Addl. Advocate General and learned counsel appearing for 4th respondent have submitted that the petitioner has been working in the present station for the last 13 years and hence she is liable to be transferred in terms of the guidelines of the government since the normal tenure is only three to five years. 4. The question is whether the question of normal tenure can be examined at the instance of a para teacher who has been appointed on contract basis against a post in a particular school. It is not in dispute that originally it was not permissible as far as contract employees were concerned. But it is seen that the Govt. had issued office memorandum dated 13.8.2009 in this regard which reads as follows:- “The undersigned is directed to invite a reference to this Department Office Memorandum of even number dated 10th April, 2008 vide which Guiding Principles for effecting transfers of State Government employees have been circulated. The matter with regard to extending the provisions of these Guiding Principles to the employees as are appointed on contract basis by various Departments and Para Teachers and Gramin Vidya Upasak of Education Department was under consideration of the Government. - 3 - Now it has been decided by the government that the Contract appointees of all the Departments and Para Teachers and Gramin Vidya Upasak in Education Department, who have completed five years tenure at one place of posting will be eligible for transfer on need based basis where ever required on administrative grounds.” 5. It is clear from the office memorandum extracted above that the contract employees become eligible to make a request for transfer on completion of five years tenure at the present place of posting. Equally, the department on administrative grounds is entitled to transfer a contract employee after five years of tenure at one place. But the contract employees are not entitled for transfer as of right, so as to disturb the regularly appointed employees, even when the regularly appointed employee has completed the normal tenure. It is squarely clear from the office memorandum extracted above that the eligibility of a contract employee for transfer will depend on two conditions; (i) the same will be considered only on need basis and (ii); the same will be done only on administrative grounds. These are to be read and understood and applied qua the contract employees and not qua a regular employee to be transferred so as to accommodate a contract employee. However, it needs to be also clarified that in case a regularly appointed employee has to be transferred on any administrative grounds, and in case there is a vacancy available on account of such transfer, it - 4 - would certainly be open to the contract employee to point out such vacancy remaining unfilled and in that situation that request has to be considered. In other words, the norms do not entitle a contract employee to make a request for transfer by transferring a regular employee. Therefore, it is made clear that the eligibility of the contract employee to request for transfer and consideration of that request will depend only on availability of the vacancy. In the instant case, there is no vacancy available to accommodate 4th respondent since the petitioner has been working in the present place. In that view of the matter the impugned order is set aside. However, it is made clear that in case there is a post lying vacant, wherein 4th respondent is interested to get his transfer, it will be open to him/her to point out such a vacancy and that request in the light of what we have held above shall be considered by 2nd respondent within one week. (Kurian Joseph), Chief Justice ( Kuldip Singh ), Judge June 28, 2010 (Sks/grs)