Calcutta High Court (Appellete Side)
Ranjit Kumar Phukan & Ors vs Union Of India & Ors on 5 May, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Present :
The Hon'ble Justice Ashim Kumar Banerjee
-And-
The Hon'ble Justice Dr. Mrinal Kanti Chaudhuri
W.P.C.T. 36 of 2011
Ranjit Kumar Phukan & Ors.
Versus
Union of India & Ors.
For Petitioners : Ms. Urmita Dutta (Sen)
For Respondents : Ms. Manashi Bhattacharjee
Heard on :- May 03, 04 and 05, 2011 Judgment on :- May 05, 2011
The petitioners are working as 'Veterinary Assistants'. They were initially working as members of Uniformed Force in Special Service Bureau, which was later on renamed as SSB (Sashastra Seema Bal). They resigned from their service, although it attracted better pay, and opted for civil post. Pertinent to note, the members of the Uniformed Force are combatised and getting better pay than their civil counterparts. After SSB was formed and Sashastra Seema Bal Act came into force, the members of the civil wing were asked to exercise option for being combatised. The petitioners expressed their unwillingness on that score and thus, remained as civil employees. They are now posted at various Offices looking after the household animals and collecting information for Intelligence Service. They do not have any arms or bullet proof jackets to be used for their personal safety. They do not have any security allowance, which the Uniformed Force get. The petitioner approached the Tribunal against the order of transfer issued by the respondent 2 Authority transferring them to battalion along with their posts. The respondent Authority says that it was done in the interest of the Administration particularly to look after the Sniffer Dogs being members of the battalion. The petitioners opposed the said transfer on the ground that they neither opted for being combatised nor is interested to be so. They rather resigned from the Uniformed Force and are happy with a lesser pay being in civil post. From the record it appears that the respondent Authority also expressed their desire to fill up the said post in the battalion in case of retirement or vacating of the office by any of the petitioner. In fact they planned for phasing out the post of the civil veterinary assistant and absorbing them in the battalion to look after the Sniffer Dogs. The Tribunal rejected their contention and dismissed the application. The Tribunal observed that they were only being used to assist battalion with veterinary support service. Their duties were not being changed fundamentally. No change took place. It was a case of "deployment' to meet emergency situation. The Government had inherent power to change service conditions. Being aggrieved, the petitioners have approached us by filing the instant application.
We have heard Ms. Urmita Dutta (Sen), learned Counsel for the petitioners and Ms. Manashi Bhattacharjee, learned Counsel for the respondent Authority.
We are unable to convince ourselves with the logic so advanced by the Tribunal. It is true that the Government has the inherent power to change the service conditions. Such change must not be to the detriment of the employees those who enjoy the protection under Article 311 of the Constitution. The petitioners were members of Uniformed Force. The members of the said Force are part of the battalion. In the battalion, apart from the Armed Force cook, cobbler, waterman and other helping hands, are members. The veterinary staffs are not included therein.
3Moreover, the petitioners themselves resigned from the said Uniformed Force and opted for civil post attracting lesser service benefit. They should not be asked to join battalion in the guise of support service particularly when there was life risk and without such risk being covered by any financial and/or other support.
The Government would be free to form its own policy. If they feel, to look after the Sniffer Dogs in the battalion the service of the veterinary staff is necessary, they may create post in the battalion and engage persons therein. Transferring the staff with the post in the battalion, who are non-combatised, is not permissible. In short, what could not be done in a direct way could not be done indirectly. The Authority attempted to do so. They are not entitled to engage any veterinary staff in the battalion in absence of a post, transferring a civil employee in such post and then continue to avail benefit of such post. Even on vacation of such post by the concerned person recruitment in such post is not permitted in law. The government has taken a policy decision to phase out the assistant veterinary staff in civil wing. They are free to do so. They are also free to create post in the battalion. However, implementation of those policies must not disturb the existing employees and they should not be forced to act to their detriment.
On a query made by this Court Ms. Sen, on instruction, submits that her clients are prepared to join any other department in any other post. Let them be adjusted and/or absorbed in any other department if the Government feels so necessary. The Government is also free to create post in the battalion to take care of the Sniffer Dogs.
The Tribunal application succeeds. The judgment and order passed by the Tribunal is set aside. WPCT 36 of 2011 is disposed of without any order as to costs.
4Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.
( Banerjee, J.) ( Dr. Mrinal Kanti Chaudhuri, J.) akb.