K.C. Sethi vs State of Haryana

K. Kannan, J.—Rejoinder, to the replication filed by the petitioner, filed on behalf of respondents 1 to 3 along with Annexures R-10 to R-16, is taken on record. CM No. 7140 of 2012

Application filed on behalf of the petitioner for placing on record appointment letters as Annexures P-15 to P- 19, is allowed, as prayed for.

Civil Writ Petition No. 21829 of 2011

The petitioner challenges the order issued by the Financial Commissioner-cum-Principal Secretary to Government Haryana, Technical Education, issued on 17.11.2011, directing that the petitioner, who was working as a Principal, Government Polytechnic, Education Society, Uttawar, repatriating him to his parent cadre in the post as senior Lecturer in Mechanical Engineering at Government Polytechnic, Sonepat, against the vacant post with immediate effect. The petitioner''s contention is that when the order of appointment had been issued, it specifically contained a recital that he was selected for "appointment" on transfer basis to the post of Principal. The petitioner''s claim is that when he accepted the offer which was issued on 18.06.2007, it was only on the basis that he was being appointed on a transfer basis and the question of repatriating him to his parent department did not arise. The petitioner also points out to the fact that in the same order, there is a reference to the petitioner being placed on probation for a period of one year which would have been inconsistent with an order of transfer by deputation. The petitioner would refer to an instance of yet another person Labh Singh, who had been appointed about the same time and when he was asking for a repatriation to his parent department, he having been issued with a letter of appointment by transfer, the respondents specifically responded that he was not on deputation in the institute, but he was a regular officer of the institute and, therefore, he could not be considered for being repatriated. The petitioner would rely on a subsequent advertisement which had been issued when the writ petition was filed and pending on 10.04.2012 calling for applications for filling-up the posts of Principals and Heads of the Department including the College at the Government Polytechnic Uttawar for appointment on transfer basis. This is a manner of showing that the respondents had, at all times, known that the ultimate order to take effect was one of appointment by transfer and not on deputation and that is why even the order appointment that was given had been only for an appointment on transfer basis.

The contention of the petitioner is refuted by the respondents by saying that at all times, the proposals had been only for posting by deputation, but the order issued under Annexure P-4 on 18.06.2007, it had been wrongly mentioned as "appointment by transfer basis". The contention that it was only a mistake is sought to be substantiated by the respondents by pointing out that on 09.11.2006 when the Director of Technical Education Department served the memos to the Principals of various colleges, the idea was mooted that the appointment would be only on deputation basis. As a matter of fact, even the applications that were given pursuant to the initial proposal on 09.11.2006, had been only for seeking a transfer on deputation from Government to Government Polytechnic Society. The minutes of the meeting of the Selection Committee which was held on 23.04.2007 also were only with reference to a decision to fill-up the posts by deputation and while the minutes were drawn, it was specifically recited that the deputation to the above faculties would be in functional scale to the post, but no deputation allowance would be paid to them. The period of deputation of the officers, the meeting recorded, would be for a period of 3 years or till the requirement of the Society or as the State Government might recall, whichever was earlier. The counsel for the respondent would also refer to the acceptance of the decision which also recorded the fact that the petitioner had signed in acknowledgment of having attended the interview for the post of Principals on deputation in the Government Polytechnic. The attempt was, therefore, to show that, at all times, prior to actually issuing order on 18.06.2007, the consideration of the Government was only for filling-up the posts by deputation and not by way of transfer.

The issue of whether the petitioner could have been served with an order repatriating him would depend on whether the order which was issued was a transfer or a deputation to the post. Although I notice that, at all times, the Government was having the proposal to fill-up the post only by deputation, when the order was issued, it states in no unmistakable terms that what was offered to the petitioner and what was accepted by the respondent, was a posting as a Principal by appointment on transfer basis. If the petitioner had accepted this letter and had joined the post, it should normally be taken that he was only for what was being offered to him, namely, an appointment on transfer basis. I might immediately observe that the principle of estoppel could not be used against a Government except in rare situations that have come to be recognized in commercial transactions where principle of promissory estoppel has been applied even against the State. If there is a statement or an offer which is against law or any statutory rule, it shall always be possible for the State to contend that a particular order or offer which was made, was contrary to law and, therefore, a mistake that had permeated in their action was liable for correction. If, in this case, the appointment to the post could have been only by deputation, but the order was issued for transfer, then it might become possible for the Government to set right the mistake and to contend that the order issued was erroneous, therefore, was liable for correction. The petitioner points out that the relevant bye-law of the Society stipulates through Clause-9 that the method of recruitment was by promotion to the extent of 75% and 25% by direct recruitment or by transfer or deputation of an officer already in the service or any Government or of the Government of India (Emphasis supplied). Therefore, the order of transfer itself was not against the statutory rule. If there was indeed a mistake, as is being contended now, one has to also accommodate whether the mistake was known to the petitioner or he had induced the other party to commit a mistake and he was taking advantage of such a mistake. What would apply as a principle of contract ought to be imported also to an offer and acceptance in service law. If a public employment has a genesis in a contract, all the trappings of the contract law would a fortiori apply. Under the provisions of the Contract Act, a mutual mistake could be a ground for rescinding of a contract. An unilateral mistake is never a ground for such a rescission. Section 20 of the Contract Act enacts:--

S. 20. Agreement void where both parties are under mistake as to matter of fact.-Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void.

Explanation:--An erroneous opinion as to the value of the thing which forms the subject-matter of the agreement, is not to be deemed a mistake as to a matter of fact.

In Pollock & Mulla on the Indian Contract and Specific Relief Acts, 14th Edition, Volume-I, at page 457, while eliciting the principle of law relating to mistakes, it has been observed:--

The rule of mistake, as invalidating a contract, is therefore confined within very narrow limits, where the extreme injustice of holding one party to the contract, outweighs the general principle that apparent contracts should be enforced.

The book further outlines that the mistakes may be unilateral, i.e., that of one party only to the contract; or it may be bilateral, where both parties are under a mistake. A bilateral mistake may be a mutual or common mistake. A mistake would be unilateral where one party is mistaken. It will make the contract void, if the other party knows or must be taken to know of the mistake of the first party.

In this case, even if we grant that the mistake was committed by the State, I have no reason to believe that the petitioner himself induced the State to commit the mistake or the petitioner knew that the order was passed under a mistake. Bilateral or mutual mistakes are wholly different. The authors would say that, "mutual mistake occurs where the parties misunderstand each other and are at cross-purposes with each other. There is no real corresponding offer and acceptance. The parties are not really consensus ad idem. There is thus no agreement at all; and this contract is also void." (supra at page 458). I am prepared to examine the case as a case of mistake by the respondents, but if there was a mistake which was not induced by the other party, nor is it shown that the mistake was made known and the other party was prepared to readjust himself to the correct state of affairs, then the State cannot point out to the mistake as a ground for rescinding a contract and rewriting a fresh one. The fact that there had been initial proposals for deputation must be taken as only a particular circumstance to show how the parties were bargaining for a particular term of service. If the bargain did not conclude in the manner in which the proposals began then the Court cannot chalk out a fresh contract which does not exist. I let the matter reside by the application of the principle of contract of employment that what was offered to him was an appointment by transfer and that cannot be resiled by the State by pointing out to a mistake even it was a genuine mistake.

The learned counsel for the petitioner points out that subsequent to the filing of the writ petition also the Government was only trying to fill-up posts by appointment on transfer basis. I will not treat this as concluding a state of affairs that the Government could not have offered a post by transfer basis and that it should be taken as inconsistent to their stand that they were contemplating filling up of this post only by deputation. I would deduce, however, that if the State has a reason to have the post filled up by appointment by transfer, it should allow pragmatism to prevail in their ways and consider if it is feasible to continue with the petitioner. If there is a particular requirement for filling up of post and if the Government itself did not have any cause for a complaint against the petitioner, a fresh consideration of the petitioner''s candidature would become essential. Platform speeches and lectures of high level bureaucrats spelling out litigation policy and to impress the public that the State does not want to litigate must be put in practice. The State should apply to itself first of what it expects from the public.

The fact that other persons, who had been appointed about the same time, did not make an issue of the manner of the respective orders of appointment, cannot be used against the petitioner himself. So long as the orders of appointment are independent and a person is sub juris, who could be bound and bind the other parties by his own action, the manner of response or the conduct of other persons cannot dictate to the petitioner as to how he must have acted as well. The order of repatriation would require to be quashed only because it does not conform to the order that was issued initially. The Government will be at liberty to exercise such course of action as is permissible to set right that action by engaging the petitioner in any form of legal action that could be permissible after serving a notice to the petitioner and giving him an opportunity to show cause against any proposed action. As of now, I would only hold that the impugned order cannot stand. The writ petition is allowed on the above terms.