Calcutta High Court (Appellete Side)
Dr. Bikram Panda vs State Of West Bengal & Ors on 10 August, 2022
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Court
No. 11 10.8.2022
G.S.Das WPST 86 of 2021
Dr. Bikram Panda
-Vs-
State of West Bengal & Ors.
Mr. Rahul Karmakar
Ms. Gargi Goswami
Mr. Sounak Mukherjee
... for the Appellants
Mr. Tapan Kumar Mukherjee
Mr. Pinaki Dhole
Mr. Rajat Dutta
... for the Respondents
Party/Parties is/are represented in the order of their name/names as printed above in the cause title.
The appellant is a doctor with the West Bengal Medical Service (WBMS). The appellant has served in his allotted capacities as a doctor in the WBMS after his appointment in 2012, regularly till 2019. There is no complaint against the discharge of duties by the appellant as a doctor in the WBMS by his Controlling Authority, which is the Directorate of Health and Family Welfare, Government of West Bengal.
During his service as a Block Medical Officer of Health (BMOH) at Nandigram the appellant was transferred as BMOH at Alipurduar in June, 2019. The appellant was transferred vice one Dr. Rahul Sarkar, who was transferred from the post of BMOH, Alipurduar to take up the appellant's posting as 2 BMOH at Nandigram.
This Court has been copiously taken through the records of this appeal. From the records the appellant substantiates his claim that although he acted in terms of his transfer order from Nandigram to Alipurduar in June, 2019, no release order was issued in favour of the said Dr. Rahul Sarkar till August, 2019. The said Dr. Rahul Sarkar, due to reasons of inconvenience following his transfer order from Alipurduar to Nandigram, had not handed over charge.
Finally, upon the CMOH, Alipurduar executing the final release of the said Dr. Rahul Sarkar sometime in August, 2019, the appellant could be formally declared to have joined his transferred place of posting by his superiors at Alipurduar.
However, by way of further substantiating his discharge of duties at his transferred place of posting at Alipurduar, the appellant relies upon the Working Statement which is valid from June, 2019 to 25 th July, 2019.
Ms. Goswami, Learned Counsel appearing for the appellant, further draws the attention of this Court to an Order of posting on promotion dated 24th January, 2020 issued by the State in favour of the appellant posting him as an Assistant Chief Medical Officer of Health (ACMOH), Tufangunj.
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The appellant was compelled to take his grievances before the West Bengal Administrative Tribunal (WBAT) upon non-payment of his salaries, which has been recorded by this Court through its previous Order dated 13th July, 2022 to be pending for the past two years.
The appellant submits that a formal leave application was filed with the Controlling Authority at Alipurduar by the appellant seeking leave for the period between August, 2019 and September, 2019.
A Co-ordinate Hon'ble Division Bench of this Court by its Order dated 20 th July, 2021 took judicial notice of the refusal of interim relief in the pending application before the Learned WBAT and directed the Learned WBAT to decide the prayer for interim relief, particularly the payment of salary to the appellant as a doctor in the WBMS without calling for any further affidavits in the event no affidavit is filed. Such order of the Hon'ble Co-ordinate Division Bench dated 20 th July, 2021 was passed in WPST 59 of 2021.
Notwithstanding the Order of the Hon'ble Co- ordinate Division Bench dated 20th July, 2021, the Learned WBAT by the Order impugned in the application dated 10th September, 2021 called for further instructions to be given by the Principal Secretary, Department of Health and Family Welfare, Government of West Bengal/the Respondent No.1 4 before the Learned WBAT to Learned Advocate appearing for the State-respondents.
Challenging such lack of real progress on the part of the Learned WBAT to consider the question of grant of interim relief, the present WBST 86 of 2021 has been filed by the appellant.
Resisting the arguments of Learned Counsel for the appellant, Mr. Mukherjee, Learned Additional Government Pleader (AGP), submits that the appellant cannot be permitted to join his transferred place of posting on promotion at Tufanganj till such time his service at Alipurduar is regularised.
Mr. Mukherjee submits that the appellant be directed to apply for regularisation of his service on the ground of having taken unauthorised leave which shall be considered by the authority in accordance with law and thereafter subsequent steps shall be taken, if and so advised, to promote the appellant to join as ACMOH, Tufangunj.
Mr. Mukherjee therefore submits that till such regularisation is considered by the State, the salaries of the appellant qua his detailment of duty at Alipurduar cannot be disbursed.
Having heard the parties and anxiously considering the materials placed including the Report- on-Affidavit of the Principal Secretary, Department of Health and Family Welfare filed today by the 5 respondents as well as the Reply Affidavit filed by the appellant, this Court is prima facie satisfied that after the detailment of the appellant at Alipurduar, he was subsequently posted on promotion to Tufanganj.
This Court also prima facie finds that in spite of the appellant having reported for joining his duties at Alipurduar from Nandigram in June, 2019, the services of his predecessor-in-office at Alipurduar, i.e., Dr. Rahul Sarkar, were not finally released by the CMOH, Alipurduar till August, 2019.
This Court further notices that although the appellant filed a formal leave application with his Controlling Authority for the period 25 th August, 2019 till 10th September, 2019, the State has now included that period as part of the alleged unauthorised absence by the appellant from duties.
It is a matter of record that the release of the said Dr. Rahul Sarkar from his posting as BMOH, Alipurduar was granted by the CMOH, Alipurduar on the 14th of August, 2019.
This Court also prima facie notices that in January, 2020 the State had permitted the appellant to be transferred as ACMOH at Tufangunj but the appellant was not allowed to join duties as ACMOH, Tufanganj on the ground that his services at Alipurduar are required to be regularised.
This Court, at this stage, is of the view, that the 6 aspect of regularisation of service of the appellant as BMOH at Alipurduar for the period in issue, i.e. August 2019 to September 2019 shall be ultimately considered in this appeal.
By way of an interim order, since the Order of transfer on promotion of the appellant as ACMOH at Tufangunj still subsists, the State shall allow the appellant to join his service as ACMOH at Tufangunj within a week from this date. The State-respondents shall take necessary steps to release the appellant from service at Alipurduar to permit him to join his transferred place of posting at Tufangunj.
The parties shall report such joining before this Court on the next date.
From the actual date of joining of his service at Tufangunj, the appellant shall be entitled to receive his regular salaries.
The appellant shall be treated to have notionally joined in his post as ACMOH, Tufangaunj from the date of his actual transfer, i.e. 24th January, 2020.
The joining of the appellant and the future discharge of his service as ACMOH, Tufangaunj shall be without prejudice to the rights and contentions of the parties in this appeal.
Let the matter return under the same heading "Application (Assigned)" at the top on the 17th of 7 August, 2022.
All parties to act on a server copy of this order duly obtained from the official website of the Hon'ble High Court, Calcutta.
(Lapita Banerji, J.) (Subrata Talukdar,J.)