Dr. Arindam Roy vs The State Of West Bengal & Ors
2021 Latest Caselaw 236 Cal

                           IN THE HIGH COURT AT CALCUTTA
                            CIVIL APPELLATE JURISDICTION
                                   APPELLATE SIDE


     The Hon'ble Justice Rajesh Bindal
               and
     The Hon'ble Justice Aniruddha Roy


                                  W.P.S.T. 107 of 2020

                                     Dr. Arindam Roy
                                            vs.
                              The State of West Bengal & Ors.


     For the Petitioner:                        Mr. D.N. Ray, Advocate,
                                                Mr. D. Nandy, Advocate and
                                                Mr. Biswaroop Nandy, Advocate.
                                                                         -Through VC

     For the Respondent:                        Mr. Jyotosh Majumder, Advocate and
                                                Learned Government Pleader,
                                                Mr. Biswabrata Basu Mullik, Advocate,
                                                Mr. Raja Saha, Advocates.


     Heard on: January 06, 2021.
     Judgment on: January 19, 2021

     ANIRUDDHA ROY, J.

1. The present writ petition has been filed challenging the impugned order dated

December 9, 2020 passed by the West Bengal Administrative Tribunal (for

short 'the Tribunal') in O.A. No. 434 of 2020 (Dr. Arindam Roy vs. The State of

West Bengal & Ors.) (for short 'theOriginal Application') whereby the said

Original Application filed by the writ petitioner was disposed of directing the

first respondent to dispose of the representation dated November 11, 2020,

filed by the petitioner by passing a reasoned order and to make necessary

communication thereof.

2. It was submitted on behalf of the petitioner that there is an extreme urgency in

the matter. In case the petitioner is not allowed to join AIIMS by January 21,

2020, he will lose the opportunity and would suffer immense and irreversible

injury and prejudice. Accordingly, the petitioner prayed for redressal of his

grievance completely in this present writ petition on merit of its case.

Considering such prayer and finding a urgency in the matter this Court

proceeds to hear the petitioner on merit for final disposal of the writ petition,

even though the representation filed by the petitioner has not yet been decided

by the first respondent. The parties had also agreed to the same.

3. It is the arbitrary and illegal action on the part of the respondents, as alleged

by the petitioner, by not allowing him to join on the post of Assistant Professor

in the Department of Ophthalmology at All India Institute of Medical Science

(for short 'the AIIMS'), Kalyani,retaining his lien on the post he is working

presently, is under challenge in the present petition.

4. The petitioner on September 4, 2017 had joined the West Bengal Medical

Education Service (for short 'the State Medical Service'), Department of Health

and Family Welfare as a Resident Medical Officer-cum-Clinical Tutor (for short

'the RMO'), pursuant to notification dated August 7, 2017, in the Department

of Ophthalmology, NRS Medical College and Hospital, Kolkata (for short 'the

Medical College').After his joining at the Medical College, the petitioner was

posted on detailment at Regional Institute of Ophthalmology, MCH Campus,

Medical College, Kolkata, pursuant to an office order dated May 22, 2018. The

petitioner is presently serving at the said detailed Post.

5. Pursuant to an advertisement dated January 22, 2019 issued by the AIIMS for

the Post of Assistant Professor, the petitioner applied for the same and received

a call for interview. The petitioner vide hisletter dated March 5, 2019 applied

to the second respondent requesting to grant him "No Objection Certificate" to

enable him to appear in the said interview.The second respondent by its

communication dated March 14, 2019issued permission in favour of several

candidates including the petitioner.The permission granted by the second

respondent also stipulated that the it was meant for 'appearing in the interview

only'.The candidates had to obey F.D. Memo No. 4499-F(P) dated August 26,

2016 and the West Bengal Service Rules, 1971 (for short 'the 1971 Rules') and

also the discretionary power of the authority.On the same day i.e. March 14,

2019 the second respondent also granted a 'No Objection Certificate'in favour

of the petitioner to the extent that if he is selected for the Post of Assistant

Professor in the Department of Ophthalmology in AIIMS, he would be relieved

from duty to take up the said Post in AIIMS.

6. On October 22, 2020 the appointment letter was issued by AIIMS in favour of

the petitioner containing the terms and conditions of his appointment.

7. The petitioner vide his letter dated November 11, 2020 made a representation

to the respondents and requested for retaining his lien on the post he is

working and let him join on the post of Assistant Professor, Ophthalmology at

AIIMS. No heed was paid to the said representation.

8. The petitioner claimed that he has a right to retain lien on the substantive post

in the State Medical Service under the1971 Rules and he is entitled to exercise

such right. Such right had been denied by the respondent State Authorities.

The petitioner further claimed that he is required by January 21, 2021, failing

which he would lose the opportunity to join AIIMS and would suffer immense

and irreversible prejudice.

9. Being aggrieved by the alleged inaction on the part of the State Authorities by

not allowing him to retain lien, the petitioner moved the Tribunal by filing the

Original Application. The said Original Application was disposed of by the

Tribunal at the thresh hold, at the motion stage by passing the order

impugned, directing consideration of the representation of the petitioner.

10. Mr. D.N. Ray, the learned counsel appearing with Mr. Biswaroop Nandi,

Advocate, on behalf of the petitioner submitted that the petitioner had joined in

the State Medical Service on September 4, 2017 and had served for more than

two years without any interruption or complaint. Referring to a notification

dated August 7, 2017 issued by the Government of West Bengal, he submitted

that the terms and conditions mentioned therein govern the employment of the

petitioner. Pursuant to the said notification, he submitted that the service of

the petitioner would continue provisionally for six months or until further order

with effect from his date of joining. Mr. Ray further submitted that the said

provisional period of six months was never extended in the case of the

petitioner and he had continuously serving his employer for two years and as

such by operation of the various applicable provisions of the relevant Rules and

law the appointment of petitioner became permanent. He then referred to a

certificate dated March 7, 2019 issued by the third respondent whereby it was

certified that the petitioner was a regular employee of the West Bengal Medical

Education Service, who joined service as RMO on September 4, 2017 and

presently working as RMO, Regional Institute of Ophthalmology, Kolkata, since

June 1, 2018 and would retire on November 30, 2043.

11. Mr. D.N. Ray, learned counsel, then referred to Rules 17 to 21 of the 1971

Rules, Part-I and submitted that unless it is provided in the Rules, a

government employee on substantive appointment to any permanent post

acquires a lien on the post and seizes to hold lien on any other post. He

submitted that Rule 20 of the 1971 Rules, Part-I deals with the situations and

provisions whereby lien of a government employee on a permanent post, which

he holds substantively, shall be suspended. He then submitted that, as a

permanent post holder in the State Health Service, which he holds

substantively, he is entitled to retain lien and the question of suspension of

lien had not arisen in the facts and circumstances of this case, which could

prompt the State respondents, not to allow the petitioner to retain his lien on

the post he is working. Thus, the respondent authorities are obliged to allow

the petitioner to retain his lien. Mr. Ray, the learned counsel, then referred to

the provisions of West Bengal Services (Appointment, Probation and

Confirmation) Rules, 1979 (for short 'the 1979 Rules'). He placed much

reliance upon Rule 5 of the 1979 Rules and submitted that in terms of Rule 5

(1)(a) and 5(1)(b)thereof, a government employee shall be deemed to be

permanent on completion of continuous temporary service for two years after

his initial appointment on a post of service or cadre and such government

employee shall be confirmed and made permanent on satisfactory completion

of the period of probation. Where passing of any departmental examination is

essential before confirmation, the provisions of Chapter I of the Services

(Training and Examination) Rules, West Bengal shall have to complied with. In

the facts of this case, it was argued that, since the petitioner had successfully

completed uninterruptedly two years of service after his initial appointment,

and since there is no requirement of any departmental examination before

confirmation, the petitioner is deemed to have completed his probation period

and become a permanent employee and as such he is entitled to retain lien as

per the Service Rules.

12. In support of his contention Mr. Ray, placed reliance upon the judgment of the

Hon'ble Supreme Court in the matter of: T.R. Sharma -versus- Prithvi Singh

and Ors., reported in (1976)1 SCC 226.

13. According to him, the interpretation of the relevant Rule depends upon the

expression a government servant on 'Substantive Appointment', which includes

permanent appointment of the petitioner in the State Medical Service, which by

fiction of law he enjoys immediately after completion of his two years of service

from the date of joining and as such he is entitled to retain his lien. It was

then submitted that, the relevant Rule of the general conditions of service of

the 1971 Rules, Part-I being Rule 34A deals with resignation. Such Rule

provides for a lock in period of five years within which the petitioner cannot

resign from his service. So retention of lien was the only option for him to

enable him to join at AIIMS.

14. Mr. Jyotosh Majumder, Advocate, the Learned Government Pleader, along with

Mr. Biswabroto Basu Mullik, Learned Advocate, appearing for the State

respondents, at the outset submitted that the petitioner is neither a permanent

employee nor can he be construed as such, therefore, the relevant Service

Rules do not permit the petitioner to retain lien on the post he is working.

15. The Learned Government Pleader referring to the said rules, submitted that the

appointment on permanent post means substantive appointment with

confirmation and an appointment on probation means appointment on trial

before confirmation. He further referred to Rule 5 of the 1979 Rules and

submitted that on completion of the period of probation the appointing

authority shall either issue formal declaration making the probationer

permanent or to take such action as may be considered necessary in terms of

provisions of Part-A of Chapter I of the Services (Training and Examination)

Rules, West Bengal. A formal declaration is, therefore, a mandatory

requirement to be made by the appointing authority for making the probationer

permanent. In the instant case no such formal declaration was made.

Referring to Rule 5(1) of the said 1979 Rules, he submitted that, in the absence

of such formal declaration the petitioner shall be deemed to be on probation.

The status of the petitioner is, thus, still a probationer and not permanent. It

was further submitted that it is true that Rule 34(A) of the 1971 Rules, Part-I,

provides for a lock in period of five years for resignation but there is no Rule for

deemed confirmation after expiry of probationary.

16. Mr. Majumder, then referred to the notes mentioned under Rule 19 of the 1971

Rules, Part-I and submitted that an employee who is on probation, cannot

claim any lien.In support of his contention the learned Government Pleader

placed reliance upon the judgments of the Hon'ble Supreme Court in the matter

of: S. Narayana vs. MD. Ahemedulla Khan and Ors., reported in (2006) 10

SCC 84 ;State of Madhya Pradesh and Ors. Vs. Sandhya Tomar and Anr.,

reported in (2013) 11 SCC 357 ;Triveni Shankar Saxena and Ors.

Vs.State of Uttar Pradesh and Ors., reported in 1992 Supp (1) SCC 524

and High Court of M.P. through Registrar and ors vs. Satya Narayan

Jhavar reported in (2001) 7, SCC 161.

17. The Learned Government Pleader, in addition to his legal submissions further

submitted that during this pandemic situation arising due to COVID-19, the

human lives in the world have been suffering and this State is also not an

exception thereto. In as much as, there is scarcity of doctors in the State

Medical Service to treat the society at large considering the persons affected

during this pandemic situation. The doctors who are employed with the State

Medical Services, considering the exigency and scarcity of doctors might have

to be posted and shifted to the places wherever their services are required on

an emergency basis. Considering this, it is also not just and reasonable to

allow a doctor in the State Medical Services to proceed elsewhere more so when

he is not entitled to the same as per the Rules.

18. Mr. D.N. Ray, Learned Counsel, on behalf of the writ petitioner submitted that,

even if the writ petitioner joins AIIMS, Kalyani, he would still remain within the

State and serve the society at large in the State during this COVID-19

situation. Hence, unless his lien is allowed, to which he is lawfully entitled to

and is allowed to join AIIMS, Kalyani on or before January 21, 2021, the

infrastructure of the State to provide treatment to the persons affected by

COVID-19 would not suffer any prejudice.

19. After hearing the submissions made on behalf of the parties and upon perusal

of material before this Court, it appears that the facts are not in much dispute.

The only issue which requires consideration is whether the petitioner had

become a permanent employee of the State Medical Services and is entitled to

retain lien on the post he is working to pursue his new assignment with AIIMS.

20. The petitioner was appointed in the West Bengal Medical Education Service

and joined on September 9, 2017.He applied for permission to appear in

interview for a post in AIIMS before the second respondent on March 3, 2019

and the permission was granted to the petitioner on March 14, 2019, subject to

certain conditions. Necessary 'No Objection Certificate' was also issued on the

same day. It is, therefore, evident that the request for no objection made by

the petitioner and the consequential permission and the No Objection

Certificate issued thereupon, were all before completion of the period of two

years from the date of joining of the petitioner, when admittedly the petitioner

was in probation. So the question of receiving such permission or No Objection

Certificate from the respondent No.2 by the petitioner before completion of

period of probation did not and could not arise. In as much as, on a true and

proper construction of Rule 3(a) and 3(b) of the 1979 Rules, it is evident, that

appointment on permanent post means substantive appointment with

confirmation and for probation such an appointment is on trial before

confirmation. From a plain reading and proper construction of Rule 5 of the

1979 Rules, it is clear that a government employee, being the petitioner herein,

shall be deemed to be on probation on till such time a specific order is passed

by the competent authority for making him permanent. Such a formal

declaration must contain recording of satisfaction of the appointing authority

as to the performance of the petitioner to make him permanent. It is the

undisputed position on record that no such formal declaration was issued by

the appointing authority in favour of the petitioner to make him permanent.

21. The relevant rules of the 1979 rules governing the petitioner require a specific

act on the part of the employer by issuing a formal declaration for the purpose

of confirmation and even if the maximum period of probation of two years, as

contended by the petitioner had expired, no such formal declaration being

made for confirmation by the appointing authority of the petitioner, he cannot

be deemed to have been confirmed merely because the period of probation,

according to him or otherwise, had expired.

22. Rule 17 to 21 of the 1971 Rules- Part I deal with lien. A plain reading of Rule

17 of the said Rules and on proper construction thereof it is evident that a

government employee on substantive appointment to any permanent post

acquires a lien on the post, therefore, to avail of the right of lien a government

employee must have a substantive appointment to any permanent post. In the

facts and circumstances of this case the petitioner is not holding any

permanent post, hence, is not entitled to claim right of lien as provided under

the relevant Rules under Chapter 3 of the 1971 Rules, Part-I.

23. In the instant case, the petitioner claims his right primarily on the basis of the

document being the order of permission dated March 14, 2019 issued by the

second respondent for appearance in the interview of AIIMS and the 'No

Objection Certificate' dated march 14, 2019 issued by the second respondent,

which were the documents issued to the petitioner contrary to the said

established due process of law and as such no right can flow from such

documents. In as much as when there is a clear statutory provision, the

petitioner cannot claim any advantage from the said two documents, which are

contrary to such statutory provisions. In as much as, there is no estoppel

against the statute. Therefore, even if the said two documents exist, the same

cannot give rise to any right to the petitioner to become a permanent employee

in a substantive capacity which he is otherwise not in the eye of law and he

cannot enforce the same in court. A person can be said to acquire a lien on the

post only when he has been confirmed and made permanent on that post or

not earlier. As on today there is no such order and not even a prayer in the

petition to treat the petitioner as such.

24. The judgments, relied upon by the Learned Government Pleader on behalf of

the State respondents, have laid down the law on the subject which are still

holding the field. It is thus, well settled that to avail of the right of lien an

employee must be in permanent employment in substantive capacity.

25. The ratio decided in T.R. Sharma's case (supra) relied upon by the petitioner,

deals with termination of lien of an employee relating to a government servant

on a permanent post which he holds substantively being appointed in a

substantive capacity. Such is not the instant case. The issue involved in the

instant case is whether the petitioner is a permanent employee in a substantive

capacity of the State employment and is accordingly entitled to retain lien.

Thus, the ratio has no application in the facts and circumstances of the case.

26. In so far as, the submission of the State respondents that if the petitioner joins

AIIMS, Kalyani, the State Medical Service may suffer during this COVID-19

situation and considering the counter argument made on behalf of the

petitioner in this regard, as noticed above, we are of the considered view that

the AIIMS, Kalyani, is no doubt a premier and esteem medical institute of high

repute and though the petitioner would remain at Kalyani within the State of

West Bengal but considering the prevailing pandemic situation if any

emergency arises where immediately the scarcity of doctors is to be met in any

part of the State, it can immediately deploy the petitioner, wherever his service

is required. Such cannot be a scenario in the event the petitioner joins AIIMS,

Kalyani. Thus, considering the gravity for the present prevailing pandemic

situation in the State, this Court cannot lose its sight of that and as such the

submission of the petitioner in this regard, are not acceptable by this Court.

27. In view of our foregoing discussions there is no merit in the present writ

petition and the same is hereby dismissed.

28. Before parting with the order, this Court is constrained to make certain

observation regarding the casualness with which the second respondent had

acted. He should have been more careful in issuing no objection certificate in

favour of the petitioner, when the petitioner had not even completed the tenure

of two years of probation from the date of his joining and was not even a

permanent confirmed employee in the State. However, this Court has been

informed in the course of the hearing that the person concerned, being the

then second respondent, had retired from his service, no action can be taken

against him.

29. There shall, however, be no order as to costs.

(Aniruddha Roy, J.)

I agree

(Rajesh Bindal, J.)