Calcutta High Court (Appellete Side)
Dr. Ashok Kumar Maity vs The State Of West Bengal And Others on 1 October, 2021
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
And
The Hon'ble Justice Jay Sengupta
W.P.S.T. 55 of 2021
Dr. Ashok Kumar Maity
Vs.
The State of West Bengal and others
For the petitioner : Mr. Ashok Kumar Banerjee
Mr. Sumit Ray,
Mr. Sailen Naskar,
Mr. Allauddin Mondal
For the State : Mr. Tapan Kumar Mukherjee,
Mr. Biswabrata Basu Mallik,
Mr. Sayan Ganguly
Hearing concluded on : 24.09.2021
Judgment on : 01.10.2021
Sabyasachi Bhattacharyya, J.:-
1. In the present writ petition, the petitioner has challenged a Transfer
Order bearing no. HF/O/Dental/133/HFW-38099/58/29 dated
February 25, 2021, whereby the petitioner was transferred from the
Calcutta National Medical College and Hospital to the Diamond Harbour
Government Medical College and Hospital.
2. Learned senior counsel appearing for the petitioner contends that the
petitioner did his Masters' Degree of Dental Surgery in Periodontia.
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Reliance is placed on a photocopy of a certificate issued by the
University of Calcutta, annexed at page 83 (annexure P-5) to the writ
petition. Learned senior counsel for the petitioner contends that,
pursuant to a Division Bench judgment of this Court dated February 8,
2010, the Director of Medical Education and Ex-Officio Secretary,
Government of West Bengal, by an order dated May 11, 2010, had
recommended that a previous transfer order of the petitioner be
cancelled and it was directed that the petitioner may remain posted as
Professor, Department of Dentistry, Calcutta National Medical College
and Hospital "for the present". However, it was made clear in the said
order that the petitioner may by transferred afresh in future,
maintaining the rules and regulations.
3. Subsequently, by the impugned notification dated February 25, 2021, it
was communicated to the petitioner that the Governor of West Bengal
had been pleased to transfer the petitioner to the Department of
Dentistry, Diamond Harbour Government Medical College and Hospital,
with effect from his date of joining and to continue in the respective
place of posting until further order, in the interest of public service.
4. Pursuant thereto, the release order was passed on February 25, 2021
itself, whereby the petitioner was released from the Calcutta National
Medical College and Hospital, with instruction to join his duty as
Professor, Department of Dentistry at Diamond Harbour Government
Medical College and Hospital at Diamond Harbour.
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5. The petitioner moved the West Bengal Administrative Tribunal against
such transfer order by filing OA No. 184 of 2021. In the said
application, apart from seeking the cancellation of the transfer order and
the consequent release order, the petitioner had also sought for stay of
the transfer order. However, prayers (d) and (e), pertaining to release of
dues/unpaid salary of the petitioner and regularisation/normalisation of
his attendance from September, 2019 were not pressed.
6. It was submitted before the Tribunal that only 11 months were left for
the petitioner's superannuation. Such superannuation of the petitioner
is due in normal course on January 31, 2022.
7. Vide Order No. 01 dated March 8, 2021, the Tribunal categorically
recorded that the petitioner had sought for postponement of the transfer,
since his son's examination was due to be held from June 1 to June 10,
2021. On such humanitarian aspect of the matter, the transfer was
deferred till June 15, 2021, with the rider that the applicant will join the
post, to which he had been transferred, on June 16, 2021. The Tribunal
held that such postponement was directed on the humanitarian ground
of the then impending Madhyamik Examinations of the petitioner's son,
however, the applicant was to join the transferred post on June 16,
2021.
8. Although the prayers in the present writ petition do not reveal any
challenge to such order of the Tribunal, but directly pray for a
cancellation of the transfer order as well as the consequent release
order, since the said challenge had already been decided by the
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Tribunal, the writ petition cannot be entertained on the reliefs as prayed
therein, if read literally. However, for the ends of justice, the reliefs are
moulded and the writ petition is deemed to be a challenge to the order
dated March 8, 2021 of the Tribunal passed in OA No. 184 of 2021.
9. Learned senior counsel for the petitioner contends that the petitioner
has been working as a Professor in the Department of Periodontia in the
Calcutta National Medical College and Hospital, which is a specific field
of specialization in treatment of gums and teeth. However, the Diamond
Harbour Government Medical College and Hospital, which is the
transferee hospital, does not have the scope of teaching in the said
subject of specialization of the petitioner. It is further submitted that
there is no such Department of Periodontia in the transferee institution
at all.
10. Moreover, at the fag end of his career, the transfer is not only unjust but
reeks of mala fides on the part of the authorities.
11. Learned counsel places reliance on a Memorandum dated November 18,
1996, bearing no. H/MA/MES/1891/1M-77/96/Calcutta, to argue that
the said memorandum sets out the guiding principles regarding posting
and transfer of medical officers and teachers of the erstwhile West
Bengal Health Services.
12. It is submitted that several guidelines, as stipulated therein by the
Department of Health and Family Welfare, Government of West Bengal
itself, have been squarely violated by the impugned transfer.
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13. By placing particular reliance on Guideline 4, learned senior counsel
indicated that WBMES teachers, which cadre has been created within
the erstwhile West Bengal Health Services, shall be required to work for
a period of 8 to 10 years in any institution(s) outside Zone-I. A teacher
posted in Zone-I can be transferred to other institutions of that Zone as
per necessity.
14. It is submitted that there is nothing on record to show that the Diamond
Harbour Medical College and Hospital is located within Zone-I.
15. Guideline 8 stipulates that any choice of posting indicated by a teacher
of WBMES from one Zone to another Zone during the last 3 years before
superannuation shall normally be given due consideration.
16. In the present case, although a few months are left for the petitioner's
superannuation, such guideline was flouted by the respondent.
17. Guideline 13 provides that, notwithstanding anything contained in the
guidelines, the Government may post at/transfer any teacher from one
Medical Institute to another in the interest of public service.
18. It is submitted that no public service would be subserved if the
petitioner is plucked out from his field of specialization and is compelled
to teach at some other department in the transferee medical college and
hospital.
19. It is contended by the petitioner that there is patent discrimination in
case of the petitioner since, despite the vacancy of posts which require
equivalent qualification elsewhere within Zone-I, the petitioner has been
transferred to Diamond Harbour, which is far off from his residence. As
regards public interest, in the affidavit-in-opposition filed by the
respondent to the present writ petition, the parties have cited the
emergency during the current pandemic situation as one of the reasons
for such transfer. However, it is argued that the specific field of
specialization of the petitioner, that is, dentistry, does not come within
the fold of the pandemic, that is, Covid-19. As such, no 'public interest'
would be subserved by such transfer.
20. Apart from violation of Guidelines 4 and 8 as indicated above, the
extreme haste in which the petitioner was transferred and a release
order was passed on the same date, that is, February 25, 2021, clearly
shows the mala fides on the part of the respondent against the
petitioner.
21. It is submitted that Guideline 13 permits that transfer of any teacher of
the WBMES cadre from any medical institution to another in West
Bengal in the interest of "public service", which test is not satisfied in
the present case.
22. It is submitted by the learned Additional Government Pleader (AGP) that
not only in view of the pandemic, but also due to exigency arising out of
vacancy of competent teacher in the transferee medical college and
hospital, the impugned transfer was in the interest of public service.
23. It is further contended by the learned AGP, by citing Pravin Kumar Vs.
Union of India and others, reported at (2020) 9 SCC 471, that
Constitutional courts, while exercising their powers of judicial review,
would not assume the role of an appellate authority. Their jurisdiction
is circumscribed by limits of correcting errors of law, procedural errors
leading to manifest injustice or violation of principles of Natural Justice.
Put differently, judicial review is not analogous to venturing into the
merits of case like a appellate authority. In the present case, no
pleading of mala fides, let alone particulars thereof, finds place in the
writ petition. There is no material or specific allegation to indicate mala
fides against the petitioner on the part of the authorities.
24. In the affidavit-in-opposition, it is contended, not only the pandemic, but
public interest was also cited as a reason for the transfer.
25. As regards alleged discrimination against the petitioner, in view of other
vacancies being available near Kolkata, it is submitted that the said
point is being urged for the first time before this Court. Moreover, it was
within the discretion of the administration to choose where to transfer
the petitioner for the ends of public service.
26. The petitioner is being transferred to a similar post of teacher, as he is
holding at present, in the Diamond Harbour Government Medical College
and Hospital, which also contains a Dentistry Department.
27. That apart, the Disaster Management Act also overrides other statutes
and bye-laws and permits the administration to post medical
practitioners to any hospital in view of the vacancies arising.
28. It is controverted by the learned AGP that there was any arbitrariness in
the impugned transfer.
29. The learned AGP also cites S.C. Saxena Vs. Union of India and others,
reported in (2006) 9 SCC 583, in support of the proposition that a
government servant cannot disobey a transfer order by not reporting at
the place of posting and then go to a court to ventilate his grievances. It
is his duty to first report for work where he is transferred and to make a
representation as to what may be his personal problems. Such tendency
of not reporting at the place of posting and indulging in litigation needs
to be curbed, the Supreme Court held in the said report.
30. Learned Senior Advocate appearing for the petitioner places reliance on
the judgment reported at AIR 2008 SC 690 [State of Rajasthan Vs.
Ganeshi Lal] for the proposition that reliance on a decision without
looking into the factual background of the case before it, is clearly
impermissible and a decision is a precedent on its own facts. Each case
presents its own features. It is not everything said by a Judge while
giving a judgment that constitutes a precedent. It was further held that
the only thing in a Judge's decision binding a party is the principle upon
which the case is decided and for this reason it is important to analyse a
decision and isolate from it the ratio decidendi.
31. Learned senior counsel submits that, in view of such proposition, the
judgements relied on by the State respondents cannot be taken as
precedents in the present case.
32. Upon hearing learned counsel for the parties and a scrutiny of the
records, I arrive at the following decision.
33. A perusal of the Guidelines in the Memorandum dated November 18,
1996 clearly indicates that those are not mandatory in nature but, as
the name suggests, are merely Guidelines regarding posting and
transfer.
34. As far as Guideline 1 is concerned, the specific stipulation is that
transfer shall be normally effected after considering the actual need
arising out of such phenomena, as stipulated, among other
considerations. The transfer, it is provided, shall not be a routine
procedure but shall be effected to run the academic, medical related
needs of the medical teaching institutions in an efficient manner.
35. Guideline 4 merely stipulates that all WBMES teachers, during the
entire period of his/her services in WBMES, shall be required to work for
a period of 8 to 10 years in institutions outside Zone I. Although it has
been provided that teachers posted in Zone I can be transferred in other
institutions of that Zone as per necessity, there is no mandate cast by
the guidelines to do so in all cases.
36. In any event, Guideline 13 overrides the other clauses and clearly
indicates that, notwithstanding anything contained in the foregoing
paragraphs of the guidelines, the Government may post and/or transfer
any teacher within the WBMES cadre from any Medical Institution to
another in West Bengal 'in the public interest'.
37. Guideline 8, which stipulates that any choice of posting indicated by a
teacher from one Zone to another during the last 3 years before
superannuation shall be given due consideration, contains the adjective
"normally", which itself indicates that the said Guideline is not
mandatory in nature.
38. It is further seen that, in the present case, the respondents have
specifically made out a case in their affidavit-in-opposition that there is a
dearth of specialists in dentistry in the transferee Medical College and
Hospital, for which the necessity arose to transfer the petitioner in the
interest of public service.
39. That apart, the fact that the specialized field of Periodontia also pertains
to gums, which might be affected due to several epidemics, would also
add to the necessity of transfer. In any event, merely because the
petitioner did his Masters' degree in the specific subject of Periodontia, it
is not mandatory that he should be posted only to Medical Colleges
having specialized departments of Periodontia. The petitioner is fully
qualified as a Professor in the field of dentistry and, as such, cannot cite
the absence of a Periodontia department in the transferee Medical
College and Hospital, despite there being vacancy in the Dentistry
department of the said College.
40. That apart, no arbitrariness and/or mala fides on the part of the
authorities against the petitioner has been specifically pleaded and/or
proved in the present case.
41. In fact, by flouting the decision in S.C. Saxena (supra), the petitioner has
been stalling the compliance of the transfer order for an inordinate
period.
42. At first, the petitioner resorted to the pretext of his son's examination,
which was considered on humanitarian ground, subject to the petitioner
joining the transferee hospital on June 16, 2021. However, the
petitioner, despite taking advantage of such breathing period, did not
comply with the order of the Tribunal in a nonchalant manner.
43. As correctly pointed out by the learned AGP, the Supreme Court clearly
laid down the contours of judicial review in Pravin Kumar (supra), which
precludes this Court, sitting in judicial review under Article 226 of the
Constitution of India, from scrutinizing and re-appreciating the
materials-on-record. In the present case, the petitioner has failed to
make out any positive case of mala fides on the part of the authority
and/or any manifest injustice or violation of the principles of natural
justice. In such view of the fact, it was well within the administrative
discretion of the respondents to direct the transfer of the petitioner to
the Diamond Harbour Medical College and Hospital, which has a
Dentistry Department as well.
44. Accordingly, there is no merit in the present writ petition. WPST 55 of
2021 is, thus, dismissed on contest without any order as to costs.
45. The petitioner shall join the transferee Medical College and Hospital at
Diamond harbour within a week from date and will be subject to all
deductions due to his non-reporting to the transferee Hospital in the
interregnum, in accordance with law.
46. Urgent certified server copies shall be supplied to the applying parties,
subject to due compliance with the necessary formalities.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Jay Sengupta, J.)
