Dr. Chaitali Roy vs Union Of India & Ors
2022 Latest Caselaw 4974 Cal

                                      1

                     IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURISDICTION
                             (APPELLATE SIDE)
Present:
The Hon'ble Justice Subrata Talukdar
              and
The Hon'ble Justice Ananda Kumar Mukherjee

                             FMA 474 of 2021

                                    With

                               CAN 1 of 2021

                              Dr. Chaitali Roy

                                    -Vs-

                           Union of India & Ors.


For the Appellant              : Mr. Soumya Majumdar
                                 Mr. Sunil Kumar Gupta
                                 Mr. Dipanjan Biswas
                                                        .....Advocates
For the Respondent              : Mr. Sahasransu Bhattacharyya

Nos. 2 and 3                    Mr. Sukanta Chakrabarty
                                                       .....Advocates
For Union of India              : Ms. Chandreyi Alam (Gupta)
                                 Ms. Runi Mukherjee
                                  Mr. Partha Ghosh
                                                      ..... Advocates
Heard on                         : 12.05.2022

Judgment on                      : 02.08.2022

Subrata Talukdar, J.:- The short question which arises in this appeal

pertains to the fact as to whether the Hon'ble Single Bench by its

Judgement and Order dated 3rd February 2021 was correct in upholding the

action of the respondents to transfer the appellant/the writ petitioner from a

Technical to an Administrative Cadre. The respondents are 'State' within the

meaning of Article 12 of the Constitution of India being governed by the

policies framed by the Department of Science and Technology, Government

of India.

The Hon'ble Single Bench, inter alia, held that the transfer of the writ

petitioner/ the present appellant to an Administrative Post in the Purchase

Department of the Bose Institute (for short referred to only as the Institute) is

ad hoc and temporary. The Hon'ble Single Bench further held that a

specialized scientific institute like the present Institute may require the

appointment of technical officers on the administrative side in the interests

of overall administrative convenience. The Hon'ble Single Bench also held

that the writ petitioner's pay, allowances, seniority and service benefits

continue to be protected in her transferred place of posting in the Purchase

Department of the Institute from her previous post of Senior Laboratory

Assistant (SLA).

Mr. Soumya Majumder, Learned Counsel appearing for the writ

petitioner/the present appellant, submits that the Hon'ble Single Bench

gravely erred in not applying the correct law to the facts of this case. It is

submitted that the appellant was appointed wholly on the Technical side in

the position of a Junior Laboratory Assistant (for short JLA). The appellant

was also promoted on the Technical side to the position of Senior Laboratory

Assistant (for short SLA). Both the initial appointment and the promotion of

the appellant were therefore completely within the Technical Cadre of the

Institute.

It is argued that the order of transfer has resulted in a change in the

service condition of the appellant by displacing her from her cadre of

appointment on the Technical side to an altogether new cadre on the

Administrative side. Such order of transfer is therefore ex facie illegal.

Reference is drawn to the Rules and Regulations of the Institute which

clearly distinguish between the Technical and the Non-technical cadre. It is

submitted that on the Technical side the Cadre strength relevant to JLA

includes in the ascending order, Technical Officer (A), Technical Officer (B)

and Technical Officer (C).

It is further submitted that the Rules and Regulations of the Institute

provide an altogether separate channel for the Administrative Cadre

beginning with the post of LDC and ascending to the post of Cashier.

Mr. Majumder places strong reliance on the governing Memorandum

of Association (MoA) of the Institute. It is submitted that the staff of the

Institute has been broadly divided into three categories namely, Research

Staff; Administrative and other Non-Research Staff; and Subordinate (Class-

IV) Staff. The appellant lays particular emphasis on Chapter III of the Staff

Pattern of the Institute of which Clause 3.1.0 speaks of Classification of

Posts according to their respective functions.

The provisions relating to Classification of Posts in terms of Paragraph

3.1.0 (supra) indicate the following Groups of Posts namely, Group-I: Head

of Institution-the Director; Group -II: Academic Staff; Group-III:

Administrative Staff; Group-IV: Technical Staff; and Group-V: Auxiliary

Staff. The duties of the Technical Staff and the Administrative Staff are

clearly divided in Note III (c) and (d) respectively of Clause 3.1.0 of Chapter

III (supra) connected to Classification of Posts.

It is submitted that the Essential educational qualification for being

appointed on the Technical side of the Institute is to be a Science Graduate

with seven years of experience in laboratory work. The Desirable

qualification pertains to the ability to record scientific data and maintaining

scientific instruments. The post of JLA is to be filled up by direct

recruitment with the Essential qualification of a Science Graduate with

experience in laboratory work and the Desirable qualification of a Diploma in

laboratory techniques with basic knowledge of electrical circuits.

It is therefore pointed out by Mr. Majumder that the offer of

appointment of the appellant has been given on purely the Technical side to

the post of JLA and is governed by the rules of the Institute requiring her

assessment, promotion and all other incidents of service which are

applicable to the Technical side exclusively. In support of his submissions,

Learned Counsel for the appellant relies heavily on a decision of this Hon'ble

Court reported in 1982 2) CLJ 416, In Re: Ranajit Basu Vs. State of West

Bengal and others delivered by Sabyasachi Mukherjee J. (as His Lordship

then was) with particular mention of Paragraph 17 of the said judgement

which reads as follows:

"The general principles that can be deduced from the decisions and the provisions and the rules are, that an employee (1) cannot be transferred out of his cadre or establishment against his wish (2) when appointment is made to a specified post or a specified group of posts, no transfer can be justified

merely because the pay is not being affected, (3) the government servant cannot be asked to perform duties which were never expected of him when he was recruited and (4) expectations of future promotions cannot be wiped off by moving a Government servant around. A cadre is the strength of a service or part of a service sanctioned as a separate unit. The assembly Secretariate staff clearly form such a separate unit even if it is assumed or presumed that they form part of the West Bengal General Service. The petitioner's appointment was as a Bengali Reporter there. He was not recruited as a member of the West Bengal General Service and then given a post in the service. His special qualification for the post, it was submitted a news reporter was not the same thing as a Bengali Reporter of the Assembly Secretariate. The order of the Speaker cannot be described as an order of transfer, The order cannot best be considered to be an order of deputation of foreign services. There cannot be any deputation even under Rule 97 without the consent of the employee concerned. In any event, Rules 97 to 116 of the West Bengal Service Rules, Part I have not been complied with."

Mr. Majumder therefore submits that the impugned order of transfer

be set aside.

Per Contra, Mr. Sahasransu Bhattacharyya Learned Counsel

appearing for the Institute and Ms. Chandreyi Alam, Learned Counsel

appearing for the Union of India, rely on Paragraph 5.18.0 of the Service

Rules. Paragraph 5.18.0 reads as follows:

"5.18.0. Any person in the employ of the Institute may be posted in any of the offices or departments of the Institute or transferred from one Office or department to another, provided, however, it should not prejudicially affect his terms and conditions of service and should not ordinarily be frequent as to cause him hardship. Such postings and transfers shall be made under the orders of the Director in consultation with the Chairman of the Department/ Dead of Section concern. A representation in writing regarding the transfer causing hardship to an employee may be permitted to be made to the Director by the employee concerned."

The attention of this Court is drawn to the Judgement and Order

impugned of the Hon'ble Single Bench which recorded the submission of the

Learned Additional Solicitor General that the appellant/ the writ petitioner

has been transferred on the Administrative Side in the Purchase

Department only for a temporary period.

Learned Counsel for the respondents rely upon the decisions reported

in 2009) 15 SCC 178 and 1993) 4 SCC 357 to argue that a Government

servant does not enjoy a vested right to remain posted at a place of his

choice and administrative exigencies require transfer of the Government

servant from one post/place to another. It is argued that there is no

enforceable right of a Government employee to resist a transfer made

considering the exigencies of public service and the powers of Judicial

Review are extremely limited in interfering with such an order of transfer.

Having heard the parties and considering the materials placed the

attention of this Court is first drawn to the order of transfer which reads as

follows:

" ORDER

The Director, Bose Institute is pleased to accord approval for the transfer/postings with immediate effect in r/o the following officials of Bose Institute with their reporting departments mentioned below against each:

                             Sl.No. Name of the          Dept.         Dept.
                                    official with        transferred   transferred
                                    designation          from          to
                             1.     Ms.       Chaitali   DPB           Purchase
                                    Roy,           Sr.                 Section under
                                    Laboratory                         Administration
                                    Assistant
                             2.     Mr.        Tapas     DPB           Purchase
                                    Chakrabory,                        Section under
                                    Duftry                             Administration
                             3.     Mr. Purnendu         DMM           Workshop
                                    Manna, Duftry

Prof. Shubho Chaudhuri, In-charge, DPB is requested to release Ms. Chaitali Roy and Mr. Tapas Chakraborty from their duties from the division after proper handing over the charge.

Prof. Anup Kumar Misra, Prof. & Head, DMM is requested to release Mr. Purnendu Manna, Duftry from his duties from the department after proper handing over the charge.

Aforesaid officials are directed to properly hand over the charge in their respective departments, and report to Dy. Registrar, Administration, for further instruction."

To the mind of this Court, the order of transfer dated the 1st of

January 2021 does not speak of any temporary posting. The order of

transfer also does not speak of any ad hoc requirement which may be

insisted upon by the Institute as a temporary measure to overcome an

immediate shortcoming.

To the further mind of this Court the reasoning recorded in the order

of the Hon'ble Single Bench to the effect that the writ petitioner is under an

obligation to discharge functions other than that of her area of specialization

in an otherwise highly specialized Institute finds no reflection in the order of

transfer dated the 1st of January, 2021.

Again, to the mind of this Court, the transfer of the appellant from the

Technical side to the Administrative side has the effect of changing the

Cadre of the appellant' service. The order of transfer being unconditional in

nature therefore prejudicially and fundamentally affects the terms and

conditions of the service of the appellant.

The requirement of Clause 5.18.0 mandates that transfer from one

Department to another of the Institute should not prejudicially affect the

terms and conditions of the service of the transferee and such transfer

should be made under orders of the Director in consultation with the

Chairman of the Department/ Head of the Section concerned. The language

of Clause 5.18.0 makes it abundantly clear that there is a requirement of an

application of mind by the transferring authority to the effect that the

transfer of the appellant from the Technical side shall not affect the smooth

functioning of the Technical side. Furthermore, the transfer exercise must

also be of a nature so that exigencies of the movement connected to the

Purchase Department require the expertise of a Technical Cadre Officer now

in the rank of a SLA.

However, from the materials placed connected to the Staff

requirements of the Institute, the appellant has demonstrated that there

exist availability of personnel on a larger scale on the Administrative side for

filling up posts in the Purchase Department rather than draw from the

lesser strength of Staff available on the Technical side.

In the backdrop of the above discussion, this Court is satisfied that

the order impugned of the transfer of the appellant/ the writ petitioner is

coloured by an illegal alienation from the Cadre of her choice and

specialization to which she was specifically recruited by the Institute subject

to fulfillment of Essential and Desirable qualifications.

Accordingly, both the order of transfer dated 1st of January 2021 and

the Judgement and Order impugned of the Hon'ble Single Bench dated 3rd of

February 2021 stand set aside.

FMA 474 of 2021 with CAN 1 of 2021 stand thus allowed.

Parties shall be entitled to act on the basis of a server copy of the

Judgment and Order placed on the official website of the Court.

Urgent Xerox certified photocopies of this Judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

I agree.

(Ananda Kumar Mukherjee, J.) (Subrata Talukdar, J.)