Calcutta High Court (Appellete Side)
Sri Satyajit Chakraborty vs The State Of West Bengal & Others on 5 December, 2018
Author: Bibek Chaudhuri
Bench: Dipankar Datta, Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE DIPANKAR DATTA
And
The Hon'ble JUSTICE BIBEK CHAUDHURI
W.P.S.T No. 75 of 2018
SRI SATYAJIT CHAKRABORTY
-Versus-
THE STATE OF WEST BENGAL & OTHERS
For the Petitioner: Mr. Tarun Kr. Roy,
Mr. Arnab Roy.
For the State: Mr Joytosh Majumder,
Mr. Pinaki Dhole,
Mr. Avishek Prasad.
Heard on: November 26, 2018.
Judgment on: December 5, 2018.
BIBEK CHAUDHURI, J. : -
1. This writ petition dated 23rd July, 2018 is directed against the
judgment and order dated 25th June, 2018 of dismissal of O.A No.988 of
2017 by the West Bengal Administrative Tribunal (hereinafter referred
to "the Tribunal")
2. The petitioner was appointed as lecturer in humanities at B.P.C
Institute of Technology, Krishnagar, Nadia under the Department of
Technical Education and Training (Polytechnic Branch), Government of
West Bengal on ad hoc basis. Subsequently, he was absorbed in the
aforesaid post vide order dated 11th January, 2002 with effect from 1st
January, 2002. In course of his employment as such, the petitioner was
transferred to different polytechnic institutions. Elaborate narration of
such transfer orders is not necessary for consideration of the instant
writ petition. However on 18th July 2011, the State Government
formulated a transfer policy for teaching and non-teaching staff of
different Government Polytechnics by dividing the State of West Bengal
into five zones, viz, Zone-"A" to Zone-"E". While working as such at Sri
Ramkrishna Silpa Vidyapith, Suri which falls within Zone-"C", by an
order dated 8th October, 2015 the petitioner was transferred to
Jalpaiguri Polytechnic Institute at Zone-"E". Challenging the aforesaid
order of transfer, the petitioner filed O.A No.1124 of 2015. It was
disposed of by the Tribunal on 17th December, 2015, giving liberty to
the petitioner to submit representation in connection with his transfer
and directing the respondents to consider the said representation within
a period of two months after giving the petitioner an opportunity of hearing. In compliance with the said order, the petitioner submitted his representation which was considered by the Principal Secretary, Government of West Bengal, Department of Technical Education Training and Skill Development. A reasoned order was passed on 3rd January, 2017 whereby the said representation stood rejected. Rejection of the said representation prompted the petitioner to file O.A No.988 of 2017, which was as noted above dismissed with cost of Rs.5,000/- .
3. Mr. Roy, learned senior advocate for the petitioner has assailed the impugned order dated 25th June, 2018 on the following grounds:-
1. The order of transfer dated 8th October, 2015 was not in accordance with the policy of transfer of the teaching and non-teaching staff of different Government Polytechnics under the administrative control of the department of Technical Education and Training the Government of West Bengal. In order to substantiate his contention, learned advocate for the petitioner has drawn our attention to different provisions of the said policy. The relevant provisions of the said transfer policy are reproduced below:-
"General Policy:
i) ...
ii) ...
iii) ...
iv) Normally orders of transfer especially for teaching
staff should be issued in such a manner that it
becomes effective at the beginning of each academic semester of the institutes.
v) ...
vi) In spite of all provisions contained in this policy,
depending on exigencies and administrative
convenience, Government may transfer anyone on any ground amongst the zones and amongst the polytechnics within a zone.
1. Policy in respect of Gr. "A" Officers (both teaching 7 non-teaching) A. Normally, the duration of service in different zones shall be 4 (four) years for teaching staff and 6 (six) years for non-teaching staff. Government, however, may exercise discretion to relax the above provision according to the merit of individual cases.
B. Every Gr. "A" officer will have to serve at least once in zone "E" in his\her total service period. C. An officer who has less than 3 (three) years of service left will be favourably considered for transfer to his\her home district on the availability of vacancies, provided he\she had served in Zone "E" for at least 4 (four) years in his/her service career."
4. It is contended by Mr. Roy that the impugned order of transfer was issued on 8th October, 2015 violating clause IV of the general policy of transfer. Moreover the petitioner was transferred to Jalpaiguri even before completion of two years of rendering service in Zone-"C". Thus the transferring authority overlooked the relevant provisions of the said policy of transfer.
5. We have carefully gone through the aforesaid transfer policy. In our considered view, clause IV of the general policy of transfer does not impose a mandatory obligation upon the transferring authority to issue the transfer order only at the beginning of each academic semester of the institute. The said clause IV starts with the word "Normally". Dictionary meaning of the term "Normally" is "generally", "usually" and/or "as far as practicable". If an authority is directed to perform a particular act "Normally", it does not impose an obligation upon the authority to perform such act strictly in accordance with such direction. Clause VI of the general policy of transfer clearly supports our view which contains a specific guideline to the effect that the Government may transfer anyone on any ground amongst the zones and amongst the polytechnics within a zone depending on exigencies and administrative convenience. Therefore, we are not impressed with the contention raised by Mr. Roy on the above score.
6. Mr. Roy next submits that the petitioner was singled out while issuing the order of transfer dated 8th October, 2015 and he was transferred from Zone-"C" to Zone-"E" even before completion of his service of four years in a particular zone, whereas the policy of transfer states that the duration of service in a particular zone is four years for teaching staff. It is also argued by Mr. Roy, referring to the representation submitted by the petitioner before the Secretary, Department of Technical Education and Training, Government of West Bengal, that some of his colleagues have been allowed to remain posted in a particular institution and zone for 21 years, 17 years, 11 years and so on. But the petitioner with some ulterior motive was transferred to Zone-"E" even before completion of four years of service in a particular zone. Therefore the said order of transfer is arbitrary and mala fide.
7. We are not in a position to accept such contention of Mr. Roy. First, the said other teaching members of the Government Polytechnics whose names and duration of postings in particular zone/institutes have been referred, were not made parties to the original application or in the instant writ petition. Secondly, each polytechnic has one post of lecturer in the discipline of humanities. The transfer order dated 8th October, 2015 shows that the petitioner was transferred from one polytechnic institute situated at Zone-"C" to another polytechnic institute at Zone-"E". Similarly another lecturer of humanities was transferred from Zone-"E" to Zone-"C". Under such circumstances, we are of the view that the impugned order dated 8th October, 2015 cannot be treated as arbitrary or mala fide.
8. Lastly, learned advocate for the petitioner submits before us that the purported reasoned order under Memo dated 3rd January, 2017 does not disclose any reason in support of transfer of the petitioner from Zone-"C" to Zone-"E".
9. We have carefully perused the said order dated 3rd January, 2017 (annexure P11). The competent authority duly considered the representation submitted by the petitioner and the general policy of transfer and came to the finding that the basic provisions of transfer policy have not been violated since he was transferred from Zone-"C" to Zone-"E" depending on exigencies and administrative convenience and the said transfer was made on rotational basis which is apparent and explicit in the order of transfer dated 8th October, 2015 (annexure P3). It appears from the said order of transfer that the petitioner, a lecturer of humanities was transferred from Zone-"C" to Zone-"E" and similarly another lecturer of the same discipline was transferred from Zone-"E" to Zone-"C".
10. Before we part with, we like to record that the petitioner has failed to make out a case that the order of transfer dated 8th October, 2015 was issued with a mala fide use of power by the authority concerned or that it was not issued in the exigencies of administration. An order of transfer cannot be assailed merely because the petitioner was not transferred to a particular zone of his choice. That apart, that the order of transfer dated 8th October, 2015 is a midterm transfer before the normal period specified in the policy of transfer will not necessarily make the transfer vulnerable.
11. There is no merit in the writ petition. It is, therefore, dismissed, without costs.
12. Mr. Majumder learned Government Pleader submitted with all fairness that the respondents are not pressing for payment of cost imposed by the tribunal upon the petitioner.
13. We, therefore, set aside that part of the impugned order pertaining to payment of cost by the petitioner.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.) (Dipankar Datta, J.) I agree.
(Dipankar Datta, J.)