Asha Arora, J. - (1.) The writ petitioner/respondent no.1 was appointed as a junior clerk in Basumati Corporation Limited by a letter dated June 30, 1994 issued by the Managing Director of the said Corporation. The petitioner's initial appointment to the aforesaid post was at Siliguri wherefrom she was transferred to Calcutta Head Office of the Corporation vide order dated July 21, 1994. The petitioner was working in the said post since her appointment on compassionate ground pursuant to the death of her husband who was an employee of the Corporation. The Principal Secretary, Information and Cultural Affairs Department, Government of West Bengal issued the impugned order of transfer dated September 29, 2014 for placement of the service of the petitioner at the disposal of Information and Cultural Affairs department for further deployment according to the necessity of the department. The Managing Director of the Corporation issued the impugned release order dated October 9, 2014 directing the petitioner to join the Information and Cultural Affairs department at Nabanna and it was further mentioned in the said order that the petitioner will draw her salary from her original place of posting, that is, Basumati Corporation Limited.
(2.) Aggrieved, the petitioner filed a writ petition being WP No.30095(W) of 2014 which was allowed by the learned Single Judge by an order dated December 5, 2016, the relevant portion of which is reproduced hereinbelow: "Considering the submissions advanced by the learned Advocates appearing for the parties and after meticulously perusing the records I find the petitioner's initial appointment was under Basumati Corporation Ltd. and the petitioner was once on deputation taken to the Siliguri establishment of the said Basumati Corporation on consent and thereafter petitioner was again taken back to the Kolkata office of Basumati Corporation Ltd. It is also evident from the standing orders under Clause 7 that service of any workman is liable to be transferred from one post to another or from one department to another or from one shift to another. Therefore, such being the service condition petitioner cannot object against any transfer order. But in the present case petitioner was taken on deputation from his parent department i.e. Basumati Corporation Ltd. to a completely separate department/establishment namely Information and Cultural Affairs department without obtaining any consent from her. I cannot also ignore the fact that this order of deputation cannot be treated under Clause 7 of the standing orders as transfer order. Transfer means the employee is liable to be transferred from one post to another or from one department to another or from one shift to another. But the impugned order of deputation cannot be termed as transfer order. It is squarely falling under deputation. Deputation under service jurisprudence means service outside the cadre or outside the parent department on a temporary basis and after expiry of the deputation period the employee has to go back to his/her parent department. A deputationist cannot claim any promotion on the deputation post in the said department or absorption under that department, and the employee's lien lies with the parent department. Therefore, before sending any employee on deputation, taking consent from the said employee is mandatory and without obtaining any consent from the said employee no one can send any employee on deputation to some other department. But in the present case no consent has been obtained by the authority from the petitioner. Since the impugned orders passed without obtaining any consent of the petitioner, therefore, these impugned orders are not sustainable in the eye of law. I also cannot ignore the fact that with the petitioner one Ansuman Sarkar was also sent on deputation to the Information and Cultural Affairs department and against that he also filed a writ petition but since the said Ansuman Sarkar has withdrawn the writ petition, therefore, he was taken back to his parent department. In my considered view Government cannot compel any employee to accept any order which is beyond the scope of existing standing orders. It is evident from the record that there are 115 (approx.) employees working in the said corporation but only the petitioner has been taken on a pick and choose manner by the impugned orders to work on deputation under Information and Cultural Affairs Department. Such action of the authority is wholly illegal, arbitrary, vindictive and completely contrary to service jurisprudence as well as very much against the Articles 14 & 16 of the Constitution of India. In the light of the above discussions and the decisions cited above by Mr. Chakraborty (Sri Ranjit Basu case, Susmriti Das and Others case, State of Punjab & Others case and Amrit Banaspati Co. Ltd case & Ratilal B. Soni case I am of the considered view that the impugned order dated 29th September, 2014 issued by the Principal Secretary of Information and Cultural Affairs Department cannot be sustained as well as the following release order dated 9th October, 2014 issued by the Managing Director Basumati Corporation Ltd also is not sustainable. Accordingly, the impugned orders dated 29th September, 2014 issued by the Principal Secretary of Information and Cultural Affairs Department and 9th October, 2014 issued by the Managing Director Basumati Corporation Ltd are hereby quashed and set aside. I direct the Basumati Corporation Ltd to immediately allow the petitioner to resume her service at the said corporation. This writ petition is allowed without any order as to costs." The appellants/respondent nos.3, 4 and 5 have challenged in this intra court appeal the legality and propriety of the aforesaid order passed by the learned Single Judge. Learned counsel appearing for the Corporation/appellants strenuously argued that the impugned order of transfer dated September 29, 2014 and the release order dated October 9, 2014 have been issued for giving effect to a particular scheme of the Government being the "scheme for Utilisation of persons employed under Local Fund administered or not administered by the Government of West Bengal or in any Company, Corporation, Undertaking, Statutory Body, Board etc. which is wholly or partially owned or controlled by the Government of West Bengal or by any Body which is funded wholly or partially by the Government of West Bengal for deployment or detailment in any Government Offices or in any other local fund authority or any such entity" as introduced vide Government Notification No.3161-F(P) dated June 17, 2014 and modified by Government Notification No.3316-F(P) dated June 21, 2016 issued by the Principal Secretary to the Government of West Bengal, Finance Department. It has been argued that the said scheme does not make it obligatory for the employer to take prior consent of the employee before making such detailment or deployment. Learned counsel for the appellants elucidated that Basumati Corporation is under the Information and Cultural Affairs department of the Government of West Bengal and the petitioner has been relocated on deputation in the Information and Cultural Affairs department of the Government of West Bengal in accordance with the scheme which does not necessitate seeking prior consent of the employee before such deputation. To buttress his submission, learned counsel for the appellants pressed into service Clause 5 of the Scheme relating to "Detailment or deployment of person employed in Company, Corporation, Undertaking etc."
(3.) Learned counsel for the respondent/writ petitioner countered that the petitioner cannot be transferred to another department without her consent since the service conditions of employees are governed by the Industrial Employment (Standing Orders) Act, 1946. Paragraph 7 of the Standing Orders provides that the service of any workman is liable to be transferred from one post to another or from one department to another or from one shift to another but in the instant case the Principal Secretary issued the impugned order of transfer directing the petitioner to be placed at the disposal of the Information and Cultural Affairs department which is outside the Corporation. It has also been argued that the Managing Director or the Manager of the Corporation is the appointing authority of the petitioner but the impugned order of transfer has been issued by the Principal Secretary, Information and Cultural Affairs Department of the Government of West Bengal. Learned counsel for the respondent/petitioner sought to impress upon us that the transfer order is arbitrary and whimsical in view of the fact that by the aforesaid impugned order another employee namely, Angshuman Sarkar who was directed to join the Information and Cultural Affairs department, challenged the order in a writ petition which was subsequently withdrawn by him. Since the said employee withdrew his writ petition, he was allowed to join Basumati Corporation. Placing reliance upon the decision (paragraph 85) in the case of T.P. Senkumar, IPS Versus Union of India and Others, 2017 6 SCC 801 learned counsel for the respondent/petitioner canvassed that the impugned order of transfer is not a reasoned one. It is submitted that absence of reasons in the order of transfer cannot be supplemented by reasons through an affidavit.;