Calcutta High Court (Appellete Side)
Dr. Chaitali Roy vs Union Of India & Ors on 3 February, 2021
03.02.2021.
Item no. 8.
Court No.13
ap
W.P.A. No. 2445 of 2021
(Through Video Conference)
Dr. Chaitali Roy
Versus
Union of India & Ors.
Mr. Sakya Sen,
Mr. Sunil Gupta,
Mr. Dipanjan Biswas.
...For the petitioner.
Mr. Y. J. Dastoor, ld. A.S.G.
Mrs. Chandreyi Alam,
Mrs. Runu Mukherjee,
...For the Union of India.
Mr. Partha Ghosh,
Mr. Tirthapati Acharya.
..For the respondent nos.2 & 3.
The writ petitioner is aggrieved by an order of
transfer dated 1st January, 2021 signed by the
Registrar of Bose Institute of Calcutta. The said
Institute is under the control of the Department of
Scientific Technology of the Government of India.
Admittedly, Bose Institute is a highly specialized
institute addressing scientific needs of the country.
The petitioner was originally posted as Senior
Laboratory Assistant and having a distinctive and
different pay scale. The petitioner has been transferred
to the Purchase Section under the Administration.
The petitioner would argue as follows:
That the transfer is not by deputation and that it
is one in the nature of a fresh recruitment. Reliance in
this regard is placed on a decision of the Hon'ble
Supreme Court in the case of V. Jagannadha Rao &
Ors. - Vs. - State of A.P. & Ors. reported in (2001)
10 SCC 401 particularly paragraphs 10 thereof.
This Court notices that the said decision was
rendered in the context of a recruitment policy of the
newly formed Government of A.P. and it was, inter
alia, held at paragraph 12 that transfer is primarily an
incident of service and Rules cannot be read as Statute
strictly by letter and word. It was also held from the
said judgment that the transfer is an incident of
service and temporary ad hoc appointment to other
cadres is permissible. The contention of the appellant
employees in the said case was dismissed in the said
decision by the three Judges' Bench of the Hon'ble
Supreme Court of India.
The petitioner would next relied upon another
decision of the Hon'ble Supreme Court of India in the
case of Palure Bhaskar Rao & Ors. - Vs. - P.
Ramaseshaiah & Ors. reported in (2017) 5 SCC 783
particularly paragraph 14 thereof.
This Court notes that the said decision was
rendered in the context of a basic requirement for a
promotion of a minimum of six years in the feeder post
of Sub-Inspector of Police (Civil) to the next Higher
Grade. The issue therein was whether the period spent
as a Reserve Sub-Inspector, should have been taken
into consideration for the purpose of six years'
requirement in the feeder post. The same was negated
by the Hon'ble Supreme Court of India. Reliance is
also placed on the said decision particularly
paragraphs 14 and 15 to indicate that the transfer and
recruitment are two different matters altogether and
the petitioners' transfer in the instant case amounts to
recruitment in the Purchase Department under the
Administration.
This Court notes the submissions of the learned
Additional Solicitor General that the petitioner has
been sent to the Administrative post only for a
temporary period and the posting is a temporary
assignment.
In any event, this Court is of the view that the
general principles of cadre transfer and the restrictions
thereon may not be applicable to a highly specialized
institute like the Bose Institute. The reason therefor is
that the person with the petitioner's experience may be
better placed than a general candidate in the
Administrative post since the decision involves
purchase of special equipment and the petitioner's
expertise may be required even for the purpose of
procurement. Such Administrative post cannot be
compared to any other Administrative post in the
Government or any Autonomous Body under the
Government.
The petitioner would lastly rely upon a decision
of a Single Judge of the Hon'ble Gujarat High Court in
the case of Rohit J. Gediya - Vs. - State of Gujarat
reported in 2005 GLH(2) 173. The said decision was
rendered in the context of a transfer from the post of
tutor under a Dental College to that of a tutor in a
Medical College, which was held to be a transfer from
one cadre to another.
This Court sees that the transfer in the said
Gediya decision was from one Institution to a
completely different Institution and has no manner of
application in the facts of the present case.
The Gujarat High Court had considered as to
whether the petitioner therein would have prejudiced
by the transfer order and it was found that the
petitioner may have some promotional opportunities
by reason of transfer. The said decision has no manner
of application in the facts of the present case.
Since it is found from the submissions of the
learned Additional Solicitor General that the transfer
of the petitioner to the Administrative post is ad hoc
and temporary, this Court is not inclined to consider
the claims of the petitioner.
This Court has already held hereinabove that
the requirement of even Administrative post in a
Specialized Scientific Institute like Bose Institute may
warrant appointment of technical officers as well.
The Bose Institute submits that the petitioner's
pay and allowances, seniority and service benefits will
not in any way be prejudiced or affected and that even
if the post in question to which she is being
transferred, had a lesser amount of pay, the
petitioner's pay and allowances would be continued to
be protected. Hence the writ petitioner's grievance are
utterly misplaced.
For the reasons stated hereinabove, the instant
writ application shall stand dismissed.
There will be no order as to costs.
All parties are directed to act on a server copy of
this order on usual undertakings.
(Rajasekhar Mantha, J.)
