Calcutta High Court (Appellete Side)
Sanghamitra Ghosh vs State Of West Bengal & Others on 4 February, 2022
WPA 19243 of 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE ARINDAM MUKHEREJEE.
W.P.A 19243 of 2021
SANGHAMITRA GHOSH
VS.
STATE OF WEST BENGAL & OTHERS.
For the Petitioner : Mr. Sakya Sen,
Mr. Sunil Gupta,
Mr. Dipanjan Biswas
....Advocates
For the State : Mr. S. N. Mookherjee, Ld. AG,
Mr. Anirban Ray,Ld. GP,
Mr. T. M. Siddiqui,
Mr. Nilotpal Chatterjee
....Advocates
For the respondent no. 3 Mr. Rivu Dutta
....Advocate
Heard on : 08.12.2021, 10.12.2021,
14.12.2021, 17.12.2021,
22.12.2021 and 05.01.2021
Judgment on : 04th February, 2022
Arindam Mukherjee, J.:
1. On 21st February, 2003, the West Bengal State Health &
Family Welfare Samity (hereinafter referred to as the said
'Samity') was constituted with the dissolution of all existing
WPA 19243 of 2021
State level Registered Societies for proper monitoring,
supervision, planning and implementation of all the
National Health Programme as well as different public
health programmes under the West Bengal Societies
Registration, 1961. The object for which the said Samity
was incorporated has been enumerated in clause 3 of its
Memorandum of Association. Clause 3 (12) empowers the
Samity to appoint or engage any person temporarily either
on deputation or on contractual basis for the performance of
programme related activities.
2. The said Samity issued a recruitment notice on 2nd August,
2012 inviting applications for various posts as enumerated
therein for contractual appointment in the State/District
Programme Management Unit. One of such post was that of
Statistical Manager (HQ). The place of posting as indicated
in Serial no. 1 of the said recruitment notice is
"headquarter" and the educational qualification for the
applicants have also been specified therein in a separate
column against the said serial. There were others to be
recruited as mentioned in Serial no. 2 to 5 of the said
recruitment notice.
WPA 19243 of 2021
3. The petitioner on being successful was engaged as State
Statistical Manager in the State Programme Management
Unit of National Rural Health Mission (in short 'NRHM')
under the said Samity by an order of engagement dated 1st
January, 2013 on contractual basis up to 31st March, 2013
on a consolidated monthly remuneration. The engagement
order was to take effect from the date the petitioner joined
in that post. The period of contract as per such engagement
order would automatically be terminated after expiry of 31st
March, 2013. The petitioner's service as per the engagement
order could be terminated by one month's notice from either
side.
4. The tenure of the petitioner's contractual employment was
subsequently renewed and/or extended from time to time.
The petitioner's engagement has been lastly extended for a
period of four months with effect from 1st September, 2021
on the existing terms and conditions by an order dated 1st
December, 2021. This order has been issued subsequent to
the filing of the writ petition which was filed on 30th
November, 2021. The said order has been brought on record
by the petitioner by way of a supplementary affidavit.
WPA 19243 of 2021
5. Prior to the last extension, the petitioner was served with an
order dated 26th November, 2021 by which the petitioner
was withdrawn from her place of posting on administrative
ground and detailed to District Programme Management
Unit, Nandigram (HD).
6. The petitioner has challenged this order dated 26.11.2021
on the ground that being in contractual engagement against
a particular post at a particular place, the petitioner cannot
be transferred to anywhere else from the post wherein she
was initially engaged and has continued thereat on
subsequent extensions. The petitioner further says that the
qualification for the post in which she was engaged is
different from the post where she is been sought to be
transferred apart from the fact that the nomenclature of the
two posts are also different. The contract according to the
petitioner does not provide for transfer and there is no
implied condition embedded in the contract for appointment
permitting transfer of the petitioner for her post of initial
engagement to any other place. The petitioner, therefor,
proceeds on the basis that she has been sought to be
transferred treating detailment to be transfer. The petitioner
WPA 19243 of 2021
has relied upon a judgment reported in AIR 1960 SC 650
(M/s Kundan Sugar Mills vs. Ziyauddin & Ors) in support of
her contention that she cannot be transferred. Relying upon
Kundan Sugar Mills (supra) the petitioner says that the idea
of transfer was not in contemplation at the time of
engagement of the petitioner as the Statistical Manager
(Head Quarters) because the post wherein she is sought to
be transferred now i.e., District Programme Management
Unit, Nandigram HD did not figure in the advertisement for
recruitment or in the order of recruitment by and under
which the petitioner was engaged. It has to be held
according to the petitioner that the District Programme
Management Unit, Nandigram HD was not in existence like
the mill at Bulandshahr in the case of Kundan Sugar Mills
(supra) and as such the transfer is impermissible as held in
that case.
7. On behalf of the State respondents it is submitted that the
petitioner has not been transferred but detailed to
Nandigram on administrative ground to meet the exigencies.
The detailment is for a limited period and the petitioner like
others will be brought back to the original post or
WPA 19243 of 2021
designation after a certain while. In this context transfer of
two other officers and that they were brought back to their
original place of engagement has been relied upon by the
State. The respondents also say that the petitioner's salary
and appraisal of annual confidential report will be
respectively disbursed and done at her parent unit and not
in her new unit as in case of transfer. It is further submitted
that although detailment is not transfer yet transfer is an
incidence of public service. Even if the contract does not
specifically provide for transfer but implied transfer is part
of public service and can be done at any stage for
administrative purpose. The ratio of Kundan Mills (supra)
according to the State respondents is not applicable in the
instant case as in 1946 Kundan Mills only had an unit at
Amroha and the Bulandshahr unit was acquired in 1955.
In such factual matrix the Hon'ble Supreme Court according
to the State respondents held that transfer to Bulandshahr
which was not existent in 1946 cannot be done. The
Supreme Court according to the respondents did not rule
out implied transfer depending upon the need of the hour.
However, it is not been submitted that the
WPA 19243 of 2021
project/programme at Nandigram was in existence when the
petitioner was initially engaged. No interference is, therefor,
called for according to the State respondents. The
performance of the petitioner despite the detailment has
been clearly spelt out to be made not by the unit to which
she is detailed. This will according to the State respondents
is further classified from the order of renewal of contract
made on 1st December, 2021 and the order of detailment
dated 26th November, 2021 on a conjoint reading of the two.
The renewal order according to the State respondents is on
appreciation of petitioner's satisfactory performance till 30th
September, 2021 and the detailment is on administrative
ground. There is as such no mala fide approach on the part
of the State. The detailment is the need of the hour for
which the petitioner has been asked to work at Nandigram
on administrative ground. The renewal order dated 1st
December, 2021, therefor, according to the State
respondents does not negate the order of detailment dated
26th November, 2021 or stultify the same in any manner.
8. The word detailment in ordinary parlance means
utilization of service of an employee in any job for a
WPA 19243 of 2021
temporary period in the public interest. The word detailment
has been introduced in West Bengal Service Rules Part I by
an amendment dated 9th January, 2014 which in Rule 5 (10
B) provides as follows:
Detailment means utilization of service of an employee in
any job for a temporary period in the public interest under
any Department or Office of the Government or in any
Company, Corporation, Undertaking and Statutory Body
etc., which is wholly or substantially owned or controlled by
the State Government or by any body which is funded by
the State Government.
The other definitions in the said service rules which are
germane for the adjudication of the issues involved are:
5 (29) Permanent Post: Permanent post means a post
carrying a definite rate of pay rate of pay sanctioned without
limit of time.
5(37) Temporary Post: Temporary post means a post
carrying a definite rate of pay or monthly honorarium
sectioned for a limited time.
WPA 19243 of 2021
5(40) Transfer: Transfer means the move of a Government
employee from one place to another or from one post to
another, either-
(a) To take up the duties of a new post; or
(b) in consequence of a change of his headquarters.
9. The said rules, though are not applicable to the petitioner
primarily because she has been appointed by the said
Samity and not by the State Government as also for the
reason that the petitioner's appointment is on contractual
basis for a fixed tenure with fixed salary not as per scale of
pay of a sanctioned post but the definitions analogous to
these referred to hereinabove can be applied to petitioner's
case. By applying the same, I find that the words 'transfer'
and 'detailment' are different particularly in the context of
the facts of the instant case. In case of transfer, if it is not,
at the request of the employee it has to be to an equivalent
post within the same cadre in general so that seniority of an
employee on joining a post as required in law can be
reckoned from the date of initial appointment and not from
the date of assuming office on transfer. In the instant case
the petitioner has been appointed on temporary basis as the
WPA 19243 of 2021
Samity has the power only to appoint temporarily either on
deputation or on contractual basis. Admittedly, the
petitioner has not been appointed on deputation so the
petitioner's appointment has to be contractual one which is
indeed the case as borne out from record. The post wherein
the petitioner was engaged initially is also not a statutory
post as per the ratio laid down in State of Karnataka &
Ors vs. Ameerbi & Ors reported in 2007 (11) SCC 681.
Keeping in mind the issues involved, it does not fall for
consideration at this stage whether the petitioner's post is a
temporary post within cadre or unclassified and isolated ex-
cadre temporary post as differentiated in the judgment
reported in G.K. Dudani & Ors. vs. S.D. Sharma & Ors.
and State of Gujrat vs. S.D. Sharma and Ors. 1986
(Suppl) SCC 239. It is, however, a confirmed state that the
petitioner had been holding the post on substantive capacity
following the ratio laid down in Baleshwar Dass & Ors vs.
State of U.P. & Ors. and Arhant Prasad Jain & Ors. vs.
State of U.P. & Ors. 1980 (4) SCC 226. I am also not
called upon to decide at this stage as to whether the
petitioner holds a civil post or not. Yet assuming without
WPA 19243 of 2021
admitting that the petitioner is holding a civil post then also
it is a temporary post going by the definition in rules 5(27)
and 5(37) of the said rules. Unless the petitioner is in a
permanent post the petitioner cannot be transferred even if
the proposition that transfer is an incidence of a public
service or that the authority empowered to appoint is also
authorised to transfer is accepted. Once I hold that the
petitioner's service cannot be transferred, the interpretation
sought to be given either by the petitioner or the
respondents to M/s Kundan Mills (supra) has no relevance,
though there is no dispute as to the ratio laid down therein.
10. Now comes the question whether the petitioner can be
detailed as submitted by the State respondents. Clause
3(12) of the Memorandum of Association of the said Samity
permits the said Samity to engage any person temporarily
either on deputation or contractual basis for the
performance of programme related activities. Record,
however, does not reveal which are the posts to be filled in
by deputation and which on contractual basis but the fact
remains that the appointment has to be on
WPA 19243 of 2021
programme/project basis unit-wise. The petitioner has to
be engaged as the State Statistical Manager in State
Programme Management Unit of NRHM under the Samity.
The place of posting of the petitioner is Headquarter as per
the recruitment notice dated 2nd April, 2012. In the same
recruitment notice Serial Nos.2 to 5 clearly indicate the
posting at "Any District/Health District" which is absent in
respect of Serial No. 1 against which the petitioner was
engaged. In the subsequent orders wherein the petitioner's
tenure as a contractual employee has been extended, there
is no change in designation or place of posting. The
petitioner's designation cannot be now changed by an office
order as sought to be done by the order dated 26th
November, 2021. The petitioner cannot also be detailed at
District Programme Management Unit, Nandigram HD from
State Programme Management Unit, NRHM simply because
she had been initially engaged in a particular
programme/project and on subsequent extensions the
petitioner was directed to work in the same
project/programme under the same unit. By the detailment
sought to be made, the petitioner's unit is being changed
WPA 19243 of 2021
from State to District which was not the intention in the
recruitment notice, otherwise against Serial No. 1 the same
endorsement as in Serial Nos. 2 to 5 would have been made.
Even subsequent extensions were against the same
programme/project. The definition analogous to the
definition of detailment as in West Bengal Service Rules,
Part-I is applied to the instant case then also detailment is
not permissible as the petitioner is neither an ad hoc nor a
temporary or a casual State Government employee on
having been appointed by the Samity on contractual basis.
The petitioner also does not hold a statutory post. The
petitioner, therefor, cannot be brought within the coinage of
an "employee" who can be detailed as in rule 5 (10b) of the
said rules or on the principles analogous there to.
Initially I thought of hearing the matter on affidavits after
considering the petitioner's entitlement to an interim order
as the petitioner's service had been lastly extended till 31st
January, 2022. The matter was, therefor, fixed "for orders"
on 13th January, 2022. However, situation was beyond my
control to deliver and order prior to 31st January, 2022 as I
WPA 19243 of 2021
suffered from Covid-19 and was unable to attend Court on
and from 13th January, 2022.
The State has used an affidavit though against the
Supplementary Affidavit filed by the petitioner. In the said
affidavit the State respondents have categorically explained
their stand which I have considered in details in the
foregoing paragraphs. I, therefor, see no justification in
calling for further affidavits to decide the main issue
involved i.e., whether the petitioner can be transferred or
detailed.
The order impugned dated 26th November, 2021 is set
aside. The writ petition is accordingly disposed of.
Urgent photostat certified copy of this judgment and order,
if applied for, be supplied to the parties on priority basis
after compliance with all necessary formalities.
Arindam Mukherjee, J.
WPA 19243 of 2021
Later:
It is submitted on behalf of the petitioner as also the State
respondents that the petitioner's contract which was lastly
extended up to 31st January, 2022 has not been further
extended. This fact is however beyond the scope of the present
writ petition and as such is not taken into consideration while
deciding the instant writ petition.
Arindam Mukherjee, J.
