Chandan Roy Chandan vs State Of West Bengal & Ors

Amrita Sinha, J

The petitioner is serving as a Project Director in the Institutional Strengthening of Gram panchayats (ISGP) Program-II, Panchayats & Rural Development Department. The petitioner is presently posted at Durgaur, Paschim Burdwan.

By a Memo dated December 2, 2019 a transfer order was passed in respect of forty-nine employees by the Program Director, ISGPP II and Commissioner in the Panchayats and Rural Development Department. The name of the petitioner appears in the said list. The petitioner has been transferred and posted at Egra, Purba Medinipur. According to the order of transfer the petitioner was supposed to join the new place of posting on December 5, 2019.

The petitioner submits that his younger brother is mentally retarded and the District Magistrate & Chairperson, Local Level Committee, Birbhum under the National Trust Act, 1999 has appointed the petitioner as his local guardian.

According to the certificate of appointment of guardianship dated June 9, 2017 it is the obligation of the guardian for maintenance and residential care, management of immovable property and management of movable property and others. The guardian is supposed to furnish a report to the Committee in forms "C" and "D" as specified in the Rules.

The petitioner submits that since he has been legally appointed as the local guardian of the mentally retarded person it is not possible for him to take up the job at his transferred place of posting at Egra, Purba Medinipur as his mentally retarded brother resides at Suri and it is not possible for the petitioner to carry his younger brother with him.

The petitioner has annexed copy of documents to show that his brother is 90% disabled and the doctor certified that the petitioner is required to be present with him for providing adequate physical, emotional support as a part of his treatment. The brother of the petitioner is unable to adjust with his environment and he is solely dependent on the petitioner for his daily activities.

The petitioner by way of a representation had prayed for reconsideration of his transfer by a letter dated December 3, 2019. The representation of the petitioner has been considered by the Deputy Program Director and by a communication dated December 3, 2019 the petitioner has been directed to comply with the order of transfer immediately as his prayer cannot be considered at this stage due to larger interest and his engagement is in the interest of public service.

The petitioner submits that he has made a further representation to the Chairperson of the Local Level Committee as per National Trust Act, 1999 praying for making alternative support system for his mentally retarded brother as per National Trust Act so that he may be able to continue with his service. The said representation has been received by the office of the District Magistrate on December 3, 2019.

The petitioner alleges that the said representation has not been considered by the authority till date.

It appears from the transfer order that the same was made in respect of as many as forty-nine employees by way of routine transfer.

The offer of engagement of the petitioner on contractual basis dated December 3, 2010 indicates that the petitioner has been offered contractual engagement for working in Burdwan district as member of the Mentoring Team for providing multi-disciplinary support to Gram Panchayats for ISGP project.

The learned advocate for the respondents submits that according to Clause 3 of the offer of engagement a candidate may be transferred anywhere within the district or State at any time during the tenure of his contract at the discretion of the authority, in public interest and in the interest of effective implementation of the project.

From the letter of appointment of the petitioner it appears that his service was transferable anywhere within the district or the State. The transfer being an incident of service the same ought not to be interfered with by the Court in normal circumstances.

Here is a case where the presence of the petitioner is very much required for his mentally retarded brother. The petitioner has been appointed under the National Trust Act, 1999 as guardian of the retarded person. The petitioner has mentioned in details the reasons for retaining him at his present place of posting or posting him at any place in the proximity of his residence where he is residing along with his mentally retarded brother.

The communication whereby the prayer of the petitioner has been turned down does not disclose the reason which led to the refusal of the petitioner's prayer. The inconvenience faced by the petitioner in the event he is to join at Egra, Purba Medinipur has not been taken into consideration by the respondent at the time of consideration of the prayer of the petitioner.

The petitioner has relied upon a judgement delivered by the Hon'ble Division Bench of this Court in the matter of Subir Bose v. State of West Bengal & Ors., reported in (2010)2 WBLR(Cal) 239 wherein the Court held that the disability and the family ground of the petitioner ought to be taken into consideration while deciding the prayer for transfer.

In view of the discussions made hereinabove the instant writ petition is disposed of by directing the respondent no. 2 being the Program Director, ISGPP-II and Commissioner of Panchayats and Rural Development Department to consider the representation made by the petitioner on December 3, 2019 keeping in mind the medical condition of the retarded brother of the petitioner.

The said representation shall be considered within a period of two weeks from the date of communication of a copy of this order. The said respondent shall pass a reasoned order and communicate the same to the petitioner within a week thereafter. The respondents shall not insist the petitioner to join his transferred place of posting till an order is passed by the respondent no. 2 on consideration of the representation of the petitioner.

The learned advocate appearing for the parties are directed to immediately communicate this order to the respondent no. 2 for necessary compliance.

In the event, the post of the petitioner has not been filled up by any other incumbent at Durgapur, the respondent shall consider to retain the petitioner at the said place till a decision is taken with respect to the representation made by the petitioner.

WP No. 22834(W) of 2019 is disposed of.

Urgent photostat certified copy of this order if applied for, be given to the parties after completion of all legal formalities.