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IN THE HIGH COURT OF CALCUTTA
Arindam Mukherjee, J.
Sanghamitra Ghosh - Appellant
Versus
State Of West Bengal And Others - Respondent
W.P.A No. 19243 of 2021
Decided On : 04-02-2022
Transfer - Employment Contract - West Bengal Societies Registration, 1961 - Clause 3(12) - West Bengal Service Rules - Rule 5(10B) - Detailment - State of Karnataka & Ors vs. Ameerbi & Ors (2007) (11) SCC 681 - M/s Kundan Sugar Mills vs. Ziyauddin & Ors (AIR 1960 SC 650) - G.K. Dudani & Ors. vs. S.D. Sharma & Ors. and State of Gujrat vs. S.D. Sharma and Ors. (1986) (Suppl) SCC 239 - Baleshwar Dass & Ors vs. State of U.P. & Ors. and Arhant Prasad Jain & Ors. vs. State of U.P. & Ors. (1980) (4) SCC 226
Fact of the Case:
The petitioner, engaged as State Statistical Manager, challenged an order transferring her to a different place of posting on the grounds that her contract did not provide for transfer and the new place of posting was not part of the original recruitment notice.
Finding of the Court:
The court held that the petitioner's service could not be transferred as she was appointed on a contractual basis and did not hold a permanent post. The court also found that the petitioner could not be detailed to a different unit as she did not hold a statutory post and was not an employee under the relevant rules.
Issues: The main issue was whether the petitioner could be transferred or detailed to a different place of posting despite her contractual appointment.
Ratio Decidendi: The court ruled that the petitioner's service could not be transferred as she was appointed on a contractual basis and did not hold a permanent post. The court also found that the petitioner could not be detailed to a different unit as she did not hold a statutory post and was not an employee under the relevant rules.
Final Decision: The order transferring the petitioner was set aside, and the writ petition was disposed of in favor of the petitioner.
JUDGMENT
arindam Mukherjee, J. - 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 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.
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.
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 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 t
The main legal point established in the judgment is that a contractual employee without a permanent post cannot be transferred or detailed to a different place of posting.
Contractual employees can be subject to transfer if explicitly stated in their employment contract, limiting rights akin to permanent employees.
Point of Law : Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer orde....
The central legal point established in the judgment is the prohibition of inter-district transfer under NHM Policy and the locality-specific nature of contractual engagements under NHM.
The court emphasized that transfer orders made in public interest and for administrative reasons should not be interfered with unless they violate any mandatory statutory rule or are made on the grou....
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