Calcutta High Court (Appellete Side)
Mithun Chakrabortty & Ors vs The State Of West Bengal & Ors on 25 August, 2025
Author: Aniruddha Roy
Bench: Aniruddha Roy
2025:CHC-AS:1627
Form No. J.(2)
Item No. 1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Aniruddha Roy
W.P.A. 14686 of 2025
Mithun Chakrabortty & Ors.
Vs.
The State of West Bengal & Ors.
For the petitioners : Mr.Partha Sarathi Bhattacharyya, Sr. Adv.
Md. Sarwar Jahan, Adv.
Mr. Soumen Barman, Adv.
Md. Shahjahan, Adv.
Mr. Umenun Khan, Adv.
For the State : Mr. Santanu Kr. Mitra, Sr. Govt. Adv.
Mr. Subhabrata Das, Adv.
Reserved on : August 06, 2025
Judgment on : August 25, 2025
Aniruddha Roy, J.
FACTS :
1. The petitioners pursuant to the recruitment notices issued in the
year 2006, 2018 and 2021, participated in the recruitment process and
ultimately they were engaged for the post of District Accounts Manager
(for short the said post) on contractual basis at the respective districts for
the Programme Management Unit (PMU) under RCH-II which is a
component of National Rural Health Mission.
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2. The appointment was purely contractual against a monthly
consolidated remuneration initially for a period of 11 months, as would
be evident from the engagement letter Annexure P-2 at page 22 to the
writ petition.
3. The contractual period of the petitioners was extended from time to
time and accordingly, the engagement of the petitioners was renewed. At
no point of time either in the engagement letter or during the time of
renewal, no condition for transfer of employee was imposed by the
authority. The petitioners do not receive any house rent allowance,
provident fund benefit, pension, gratuity or any social security including
terminal benefits.
4. There has been no condition of employment of the petitioners,
either express or implied that the West Bengal State Health and Family
Welfare Samity or District Health and Family Welfare Samity or Block
Health and Family Welfare Samity has any right to transfer the
petitioners from their place of engagement to any other place.
5. Suddenly on June 25, 2025, the Mission Director, National Health
Mission and Executive Director, West Bengal Health and Family Welfare
Samity (for short the Welfare Samity) issued a transfer order dated June
25, 2025, Annexure P-4 at page 41 to the writ petition, in exercise of
authority under Clause 1.3 of the Transfer Guideline dated May 26,
2022, Annexure P-5 at page 44 to the writ petition.
6. The petitioners alleged that prior to issuance of the said transfer
order dated June 25, 2025, the petitioners were not aware of about any
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transfer Guideline nor the petitioners were made aware of the same at
the time of their engagement or during the renewal of their contractual
employment.
7. On the basis of the said impugned transfer order, the petitioners
were directed to shift at the transferred place without any further or
additional benefit.
8. Thus, the petitioners being aggrieved with the said transfer order
dated June 25, 2025, has filed the instant writ petition with the following
prayers :-
a) Writ of ог in the nature of Mandamus Commanding and/or
directing the respondents, their men, agents, subordinates and
each one of them to cancel, rescind and/or withdraw the Order
being Memo No. HFW-27099/444/2024/1616 dated
25.06.2025 issued by the Mission Director, NHM and Executive
Director, West Bengal State Health and Family Welfare Samity,
immediately;
b) Writ of or in the nature of Mandamus Commanding and/or
directing the respondents, their men, agents, subordinates and
each one of them not to give effect and/or further effect of the
Transfer Guideline of Contractual HR under National Health
Mission, West Bengal issued by the Executive Director, West
Bengal State Health and Family Welfare Samity & Mission
Director, National Health Mission, West Bengal vide Memo No.
HFW/NHM-466/2020/Pt-1/356 dated 26.05.2022 petitioners;
in respect of the petitioners;
c) A writ of or in the nature of Certiorari calling upon the
respondents to produce before the Hon’ble Court all the records
relating to and arising out of the present case and upon perusal
of such records conscionable justice may be done to the
Petitioner by issuing appropriate writ order or orders.
d) Rule NISI in terms of prayer (a), (b) and (c) above and make the
Rule absolute if the respondents fail to show sufficient cause or
return.
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e) An interim order of injunction directing the Respondents, their
men, subordinates, agents and each one of them not to give any
effect and/or further effect to the Order being Memo No.HFW-
27099/444/2024/1616 dated 25.06.2025 issued by the
Mission Director, NHM and Executive Director, West Bengal
State Health and Family Welfare Samity till the disposal of the
writ petition.
f) Ad-interim order of injunction in terms of prayer (e) above.
g) Such other or further order or orders as to Your Lordships may
deem fit and proper.
h) Cost of incidental to this writ application.
i) Leave may be granted to move the writ petition without
complying the requirement of Rule 26 of the Rules relating to
Application under Article 226 of the Constitution of India;
9. Pursuant to the direction of this Court, report on affidavit has been
filed on behalf of the respondent No.6. The petitioners have also filed
their exception on affidavit to the said report.
SUBMISSIONS :
10. Mr. Partha Sarathi Bhattacharyya, learned Senior Advocate
appearing for the petitioners submits that the recruitment of the
petitioners took pace under a particular contract. The contract provides
for employment of the petitioners at a particular position at the district
level for the post of Accounts Officer and there was no condition either
express or implied for transfer. The petitioners are supposed to work
under the contract at a particular place for which they were engaged and
in absence of any provision for transfer under the contract, the
petitioners cannot be transferred by the Welfare Samity.
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11. Immediately, upon issuance of the said impugned transfer order,
the petitioners through their respective e-mails on June 29, 2025,
submitted representations before the said Welfare Samity requesting it to
withdraw the transfer order and not to give any effect to the alleged
Transfer Guideline, Annexure P-6 at page 49 to the writ petition.
12. Referring to diverse provisions from the Guidelines on Human
Resources for Health, National Health Mission, 2022 (for short NHM-
Guideline), Mr. Bhattacharyya submits that the employment should not
be subject to any routine transfer. Transfer may be entertained in certain
exceptional circumstance, such as, spousal colocation and mutual
transfer, where both the employees at the same level with the same
educational qualifications, if want transfer for personal/family reasons.
According to learned Senior Advocate appearing for the petitioners, the
other exception could be to transfer an employee to a post which is lying
vacant and the particular employee desires the transfer because of its
family/personal reasons. Other than these, there was no scope for any
transfer at the instance of the Welfare Samity.
13. Mr. Bhattacharyya, learned Senior Advocate further submits that
the engagement of the petitioners are not against any permanent public
post. The petitioners are the employees of the said Welfare Samity and
not of the State against any sanctioned post. Hence, transfer cannot be
treated as an incidence of service of the petitioners. Since the contract
under which the petitioners were engaged and were renewed from time to
time does not provide any provision for transfer to any other place other
than the place at which they are employed. The impugned order of
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transfer including the transfer policy, if any, are bad in law and liable to
be set aside.
14. Per contra, Mr. Santanu Kr. Mitra, learned Senior Government
Advocate appearing for the State with Mr. Subhabrata Das, learned
Advocate, at the threshold referring to pages 50, 52, 56, 59, 62 and 65 to
the writ petition submits that the petitioner Nos.1, 4, 7, 8, 9 and 10
through their respective e-mails dated June 29, 2025, accepted the
transfer provided some monetary benefits are granted to them as
mentioned in their representations. He further submits that the transfer
guideline came into force on May 26, 2022. Prior thereto, on December
14, 2015 and June 4, 2018 at Pages 59 and 61 to the writ petition,
petitioners Nos.4 and 8 asked for transfer.
15. Learned State Counsel submits that the petitioners being
contractual employees do not have any legally enforceable right praying
for issuance of mandamus. Whatever rights the petitioners have, if any,
the same would flow from the contract itself. The petitioners are engaged
against temporary post and no vested right is created in favour of the
petitioners against the post or against any sanctioned post.
16. Referring to the recruitment notice dated February 27, 2014, at
Page 18 to the report on affidavit filed on behalf of the Welfare Samity,
the learned State Counsel submits that the engagement was mentioned
to be anywhere in West Bengal as place of posting.
17. Learned State Counsel then refers to the renewal of engagement
dated August 1, 2017, at Page 21 to the writ petition to show that place
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of posting was anywhere in West Bengal. He then refers to the Transfer
Guideline dated May 26, 2022, at Page 30 to the writ petition. Under
Clause 1.3 of the said Transfer Guideline, it is clearly mentioned that
transfer on administrative ground can be made by the authority at any
point of time and by exercising the said power, the Welfare Samity had
issued the said transfer order. Learned State Counsel then refers to the
resolution of the 24th meeting of the HR Advisory Committee at Page 41
to the writ petition. Referring to Clause 8 from the said resolution, he
submits that in partial modification of the said transfer policy dated May
26, 2022, it was decided that any employee who has applied for transfer
and has been transferred will not be eligible for further transfer for the
next three years subject to his renewal of his contract with effect from
the issuance of the transfer order. The said clause further mentions that
however, the said criteria will not be applicable for transfer on
administrative ground or on severe medical reasons.
18. Referring to the renewal of contract dated October 16, 2023,
Annexure-R5 at Page 46 to the report, learned Counsel submits that the
contract was renewed as per the terms and conditions mentioned in
Annexure-A and format mentioned in Annexure-1 thereto. Annexure-A
at page 48 to the said report, inter alia, contains Clause 8 which provides
that transfer will be guided as per the said transfer policy dated May 26,
2022 which, inter alia, provides for Clause 1.3 being transfer on
administrative ground can be made by the authority at any point of time.
On the basis of the said clause, the transfer order was issued on June
25, 2025 at Page 41 to the writ petition.
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19. Learned State Counsel then further refers to last renewal of
contract dated March 26, 2025, Annexure R-6 to the report.
20. Mr. Mitra, learned Counsel appearing for the State submits that by
virtue of accepting the said renewal from time to time, the petitioners had
accepted the provisions for transfer engrafted in their service contract. As
such, the said transfer order dated June 25, 2025, is lawful and valid.
21. Mr. Mitra, further submits that transfer is an incidental to service.
Unless the transfer is resulted of malice or arbitrariness, the same
should not be interfered with. No case of mala fide has been made out in
the writ petition. In support, he has relied upon the following two
decisions of the Hon’ble Supreme Court
(i) In the matter of : Rajendra Singh and Others vs. State of
Uttar Pradesh and Others reported at (2009) 15 SCC 178,
(ii) In the matter of : State of Rajasthan vs. Anand Prakash
Solanki reported at (2003) 7 SCC 403.
22. To explain administrative exigency which vests power on the
employer to transfer its employee, Mr. Mitra has relied upon a decision
of the Hon’ble Supreme Court In the matter of : K. B. Shukla and
Others vs. Union of India and Others reported at (1979) 4 SCC
673.
23. In the light of the above, Mr. Mitra submits that the writ petition
should be dismissed, as the petitioners had already accepted the
transfer as a condition of their employment.
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24. In reply, Mr. Partha Sarathi Bhattacharyya, learned Senior
Counsel appearing for the petitioners submits that the petitioners are
contractual employees and not engaged against any sanctioned post. The
petitioners cannot be termed to be in public employment. Therefore, the
transfer cannot be an incidence of the service of the petitioners.
Accordingly, Mr. Partha Sarathi Bhattacharyya, distinguished the
judgments relied upon by the learned State Counsel.
25. Mr. Partha Sarathi Bhattacharyya, further submits that the
principle laid down in the ratio of a judgment has to be read in the light
of the particular facts situation on which the judgment has been
delivered. The judgments cited by the learned State Counsel are also
distinguishable on facts and the ratio therein, are not applicable in the
facts of this case. In support, he has relied upon a decision of the Hon’ble
Supreme Court In the matter of : The Regional Manager and Others
vs. Pawan Kumar Dubey, reported at AIR 1976 SC 1766.
DECISION :
26. After considering the rival contentions of the parties and on
perusal of the materials on record, it appears to this Court that, the facts
admitted are that the petitioners were engaged as contractual employees.
The contract was renewed from time to time by incorporating various
terms. The petitioners are working upon execution of fresh contracts
and/or upon renewal thereof. The law is well settled that with the
execution of new contract and/or by incorporation of new terms in the
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contract, the original contract either stands modified partly or wholly or
stands novated partly or wholly, as the case may be.
27. The transfer policy/guideline dated May 26, 2022, Annexure P-5 at
page 44 to the writ petition is also admitted document and Clause 1.3
thereof, inter alia, provides that transfer on administrative grounds can
be made by the authority at any point of time.
28. The impugned transfer order dated June 25, 2025, Annexure P-4
at page 41 to the writ petition, has also been issued in exercise of the
authority under the said Clause 1.3 of the transfer guideline.
29. The renewal of contract for engagement of the petitioner dated
August 1, 2017, and the last one dated March 26, 2025 at page 51 to the
report filed by the respondents clearly show that the transfer clause was
duly incorporated in the renewed contract. Therefore, petitioners cannot
contend that the contract under which the petitioners are working does
not include the provisions for transfer. The judgment of the Coordinate
Bench dated February 4, 2022, In the matter of : Sanghamitra Ghosh
vs. State of West Bengal and Others rendered in WPA 19243 of
2021, relied upon on behalf of the petitioners is clearly distinguishable
on these facts that in the instant case the contract under which the
petitioners are working included the provision for transfer. Therefore, the
ratio decided In the matter of : Sanghamitra Ghosh (supra) has no
application in the facts of the instant case.
30. On meaningful reading of the provisions from said NHM guidelines,
this Court is of the firm opinion that, the guidelines mentioned therein
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are merely indicative and are suggestive in nature, as would be evident
from Clause 1.1 – purpose of guidelines, of the said guidelines. These
guidelines are not directives. Thus, the said guidelines would have no
binding force.
31. As contended on behalf of the petitioners that since the
employment of the petitioners are contractual, not against any
sanctioned post and neither in the nature of public service, transfer
cannot be considered to be an incidence of service of the petitioners, is of
no relevance or consequence in the facts and circumstances of this case.
In the instant case, the employment of the petitioners are purely
contractual and the last renewed contract shows that transfer is one of
the terms engrafted in the contract. The petitioners having executed the
said contract cannot contend anything to the contrary.
32. Inasmuch as, through the representation submitted through e-
mails all dated June 29, 2025, some of the petitioners have accepted the
transfer subject to some monetary benefits and some of the petitioners
have already asked for transfer even before the transfer guideline was
effected. Thus, records show the petitioners on principle have accepted
transfer.
33. Since the transfer clause is an integral part of the contract under
which the petitioners are working, this Court is of the opinion that the
judgments relied upon by both the parties are not required for any
further discussion.
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34. In view of the forgoing reasons and discussions, this Court finds
that the writ petition is totally devoid of merits. The transfer order dated
June 25, 2025, is not interfered with and stands affirmed.
35. Accordingly, the writ petition being W.P.A. 14686 of 2025 stands
dismissed, without any order as to costs.
36. Photostat certified copy of this Judgment, if applied for, be
furnished expeditiously.
(Aniruddha Roy, J.)
D. Das, P.A.