Ranajit Basu v. STATE OF WEST BENGAL — 1982 DIGILAW 326 (CAL)

JUDGMENT Sabyasachi Mukherji, J. 1. THE petitioner in this application under Article 226 of the Constitution makes grievance of the two orders, namely Annexure 'E' dated 10th of April, 1980 and Annexure 'F' dated 4th of July, 1980. THE petitioner at the relevant time was the Chief Bengali Reporter of the West Bengal Legislative Assembly Secretariat. By the order dated 10th April, 1980 he was directed not to enter the chamber of the Assembly until further orders. This order was passed in view of some representations made by other reporters in the Assembly to which I shall presently refer. THE other order which is Annexure 'F' dated 4th July, 1980 whereby the Speaker of the West Bengal Legislative Assembly has been pleased to place the services of Sri Ranajit Basu, Bengali Reporter, West Bengal Legislative Assembly Secretariat at the disposal of the Department of Information and Cultural Affairs, Govt. of West Bengal for appointment as News Reporter in that department On the same date which is also included in the Annexure' F another order was passed whereby the Governor has been pleased to appoint Sri Ranajit Basu, Bengali Reporter in the Legislative Assembly to act as News Reporter under the information and Cultural Affairs' Department in the scale of Rs.450/-.1050/- for a period of six months from the date he assumed charge until further orders, the order, inter alia, provided that the Governor has further been pleased to allow Sri Basu to draw a special pay of Rs.100/- per month in view of the arduous nature of the job. THE notification has also been annexed and is under challenge. In order to appreciate this controversy it is necessary to refer to certain facts which I shall presently do. 2. BUT before I do so it is necessary to bear in mind the notification issued under Section 241 of the Government of India Act, 1935 declaring certain posts in the Bengal Legislative Assembly Department to be included in the Government service. That notification included in Schedule VIII, clause (b). Item 96- to 102 who were Secretary, Bengal Legislative Council Department, Assistant Secretary, Bengal Legislative Council Department, Registrar, Bengal Legislative Assembly Department, 1st Assistant Secretary, Bengal Legislative Assembly Department, 2nd Assistant Secretary, Bengal Legislative Assembly Department and Registrar, Bengal Legislative Assembly Department. That notification included in Schedule VIII, clause (b). Item 96- to 102 who were Secretary, Bengal Legislative Council Department, Assistant Secretary, Bengal Legislative Council Department, Registrar, Bengal Legislative Assembly Department, 1st Assistant Secretary, Bengal Legislative Assembly Department, 2nd Assistant Secretary, Bengal Legislative Assembly Department and Registrar, Bengal Legislative Assembly Department. It has to be borne in mind that this notification was issued at a time before the Constitution of India when the separateness of the Legislature from the control of the executive government was not so emphasised, as has been done under the Constitution. On 24th August, 1953 the West Bengal Legislative Assembly Secretariat Rules, 1953 were framed under Article 187(3) by the Governor after consultation with the Speaker. The petitioner was appointed as a temporary typist on 18th of June, 1964 in the Public Health and Engineering Department of the Govt. of West Bengal. On the 16th of September, 1965 application was made by the petitioner for the post of Junior Bengali Reporter in the West Bengal Legislative Assembly. This allegation has been made at page 16 of the first affidavit in reply. This would be borne out, that this statement was correct because of the subsequent letter of appointment. On the 30th of October, 1965 the petitioner was provisionally selected for the said post and request was made by the Assistant Secretary, Legislative Assembly Secretariat to the Chief Engineer, Public Health and Engineering Department of the Govt. of West Bengal for the release of the petitioner so that he might join his new post. This would be clearly borne out by Annexure 'Y' of the affidavit in Opposition filed on behalf of the Legislative Assembly. On the same date the petitioner also applied to the Chief Engineer, Public Health and Engineering Department for release. This would be borne out by the document at page 16 of the first affidavit in reply of the petitioner on the 1st of November, 1965 order of release was passed which is Annexure 'J' of the affidavit in Opposition of the Legislative Assembly. There was, another notification issued on the 6th of July, 1966 under Article 309 amending the earlier notification dated 4th June, 1941 by including gazetted posts which had not been included specifically in any other State services as part of the earlier notification. There was, another notification issued on the 6th of July, 1966 under Article 309 amending the earlier notification dated 4th June, 1941 by including gazetted posts which had not been included specifically in any other State services as part of the earlier notification. It was contended that in the earlier notification issued in 1941 the employees of the Legislative Assembly under the West Bengal Legislative Assembly were included with the posts of the Government service, under the Home Department, while in 1966 when fresh notification was issued care was not taken to separately mention the employees of the West Bengal Legislative Assembly because it was inconceivable that under the Constitution and the specific provisions of the Constitution to which I shall presently refer it was expected that 'the employees of the West Bengal State Legislative Assembly could continue to be under the control of West Bengal Govt. Home Department; it would be repugnant to the very essence of separateness as envisaged in the constitutional provisions. On the 8th of September, 1971, there was a notification issued appointing the petitioner as Senior Reporter (Bengali) in the West Bengal Legislative Assembly by the order of the Speaker with effect from 10th of May, 1971. The said notification, however, was amended on 29th of August, 1972 so as to take effect from 23rd of April 1969 instead of 10th May, 1971. On 23rd of April, 1971 amendment was made to the West Bengal Legislative Assembly Secretariat (Pay and Allowance) Rules, 1970 under Article 187(3) by the Governor after consolation with the Speaker. Petitioner was confirmed on 2nd of May, 1977 in the post of Bengali Reporter to the West Bengal Legislative Assembly Secretariat with effect from 23rd of April, 1969. On the 31st of March, 1979 the petitioner was allowed to cross the second efficiency bar in the time scale of pay by the order of the Speaker. On the 8th April, 1980 recommendation was made by the Speaker to the Minister, Finance Department for financial help to the petitioner to enable the petitioner to publish his thesis On the. 9th of April, 1980 there was a complaint by 24 Reporters which is set out at page 31 of the petition against the petitioner. On the 10th April, 1980 the Secretary, Legislative Assembly sent the complaint to the petitioner for his comments. 9th of April, 1980 there was a complaint by 24 Reporters which is set out at page 31 of the petition against the petitioner. On the 10th April, 1980 the Secretary, Legislative Assembly sent the complaint to the petitioner for his comments. Order was passed on the same date by the Speaker directing the petitioner not to enter the chamber of the Assembly until further orders. On the 16th April, 1980 the petitioner furnished his comments against the complaint. On the 9th June, 1980 notice under Section 80 of the Civil Procedure Code was given of a suit for defamation by the petitioner on the reporters who had made the complaint against him. It is not necessary for the purpose of deciding the contention and the controversy involved in this case to set out in detail either the recommendation of the Hon'ble Speaker for financial help to the petitioner for the publication of his thesis on the history of the Legislative Assembly nor is it necessary to set out in detail the actual complaint by the 24 Reporters against the petitioner. On 1st of July, 1980 the proposal for the creation of a post of News Reporter in the Department of Information and Cultural Affairs receive J the assent of the Hon'ble Chief Minister and the Hon'ble Finance Minister. On the 2nd of July, 1980 the above post of News Reporter in the Department of Information and Cultural Affairs was sanctioned. On the 4th of July, 1980 the Speaker placed the services of the petitioner at the disposal of the Department of Information and Cultural Affairs for "appointment" as News Reporter in that department. On the 4th of July, 1980 there was an order by the Deputy Secretary, Department of Information and Cultural Affairs "appointing" the petitioner "to act as News Reporter" under the Information and Cultural Affairs Dept. for a further period of 6 months until further orders. On 7th of July, 1980 the present application under Article 226 of the Constitution was moved and filed, and certain directions for filing of the affidavit was made by Mr. Justice D. K. Sen passing certain interim orders restraining the respondent from giving further effect to the impugned orders and permitting withdrawal of salary. The said order was from time to time modified by the learned Judge as also by Mr. Justice T. K. Basu. Justice D. K. Sen passing certain interim orders restraining the respondent from giving further effect to the impugned orders and permitting withdrawal of salary. The said order was from time to time modified by the learned Judge as also by Mr. Justice T. K. Basu. The said orders were passed upon notice to the respondents and upon hearing them. Ultimately, on 3rd of March, 1981 a rule nisi was issued and the interim orders made were directed to be continued with certain modifications, and directions for filing affidavits were given. After the affidavits were filed certain other modifications were obtained from time to time and ultimately on the 4th of June, 1982 the matter was mentioned before me for hearing after three weeks and has since been heard by me. Two points were urged in support of this application. It was submitted firstly, that in the background of the facts and circumstances of the case the impugned order was a malafide one and a colourable exercise of the power of the competent authority at the behest of certain reporters" allegations which were not investigated nor in respect of which petitioner was given any chance or opportunity to adduce any evidence or proof. It was submitted that the sequence of events narrated before would manifest the above allegations. It was, secondly, submitted that being a permanent Chief Bengali Reporter of the West -Bengal Legislative Assembly the petitioner was a permanent employee of the Legislative Assembly which was a separate ex cadre post and the petitioner could not be removed from that position to any other position or to any other service terminating the petitioner's lien on the petitioner's substantive appointment in the Legislative Assembly without the consent of the petitioner. In the premises, it was urged that the action of the respondents were wholly illegal, unconstitutional, malafide and as such void. 3. IT would be desirable to deal with the second of point submission made on behalf of the petitioner, In and of this submission several provision of the Constitution were referred to. In order to urge that specific provisions had been made in the Constitution relating to the employment in connection with the affairs of the Union or the States, it was emphasised that these were, inter alia, as follows : - "(a) Employees of the Parliament and the State Legislatures. In order to urge that specific provisions had been made in the Constitution relating to the employment in connection with the affairs of the Union or the States, it was emphasised that these were, inter alia, as follows : - "(a) Employees of the Parliament and the State Legislatures. In this connection reference was made to Articles 98 and 187. (b) Employees of the Supreme Court and the High Courts who were, governed by Article 146 and Article 229 of the Constitution. (c) Employees of the Comptroller and Auditor General of India and Article 148 provides for the same and (d) Employees of the Executive Government who were regulated specifically by the provisions of Article 309 of the Constitution." IT was submitted that the distinction between the employees of the High Court and the Executive Government had been pointed out by the Supreme Court in the case of Pradyot Kumar V Chief Justice of the Calcutta High Court reported in AIR 1956 SC Page 285. IT is not necessary for my present purpose to discuss the said decision in detail though the said decision does highlight the distinction between the employees of the High Court and the Executive Government. Article 187 speaks of "Separate Secretariat" for State Legislature. IT was urged on behalf of the petitioner that it is desirable for the Court to look into the legislative history in order to appreciate the background why this provision was enacted and to construe the meanings of the words in the Constitution. For this reliance was placed on the decision in the case of State of West Bengal V. Nripendranath AIR 1966 SC page 447 and learned advocate for the petitioner drew my attention to paragraphs 7 to 13 of the said decision. The legislative history of the article indicated, according to the petitioner that the word "separate" had been used in order to mean separateness from the Executive Government as one of the measures to secure the independence of the Legislatures. 4. THE legislative and constitutional history was sought to be relied upon in order to emphasise the purpose of Article 187 along with Article 98 of the Constitution and in this connection my attention was drawn to (a), Glimpses of the Working of Parliament by S. L, Shakdhar 1977 Ed. pages 5 to 9, (b) THE Speaker in India by Maya Dube 1971 Ed. pages 5 to 9, (b) THE Speaker in India by Maya Dube 1971 Ed. pages 238 to 241 (c) Constituent Assembly Debates, Vol. 9, pages 2, 3 and 37 containing the speech of Dr. Ambedkar introducing Article 98 of the Constitution and (d) Speech of Dr. Rajendra Prasad on 26th of November, 1949 moving for the adoption of the Constitution printed in the Framing of India's Constitution by B. N. Rao, Vol. 4 (1968) Ed. page 946 at page I955. It is not necessary to refer to all these materials but these are instructive. But it may not be inappropriate to refer to the speech of Dr. Rajendra Prasad in the Constituent Assembly just before the adoption of the Constitution of India on November 26th, 1949. He observed as follows: - "In the case, of the Legislature, the High Courts, the Public Service Commission, the Comptroller and Auditor-General and the Election Commissioner, the staff which will assist them in their work has also been placed under their control and in most of these cases their appointment, promotion and discipline vests in the particular institution to which they belong thus giving additional safeguards about their independence." It was submitted that the reason for the incorporation of Article 98 and 187 was the demand for independence of the legislatives bodies from the Executive Government The separation of the staff was one of the element in achieving such independence it was emphasised. From the debate of - Dr. Ambedkar's speech to that effect was referred to. He had observed (Debates Vol. 9 pages 2 and 3) "that the officer is under a sort of dual control, control exercised by the department of which he is an officer and the control by the President under whom for the time being, he is serving There it was urged that it was necessary that the staff of the Assembly Secretarial should be separate and independent from the staff of the Executive Government Therefore, it was further urged that the Authorities that were competent to lay down the terms and conditions of the service in the two cases were different and the controlling "authorities were also different. This was not merely the difference which exists between two departments off the Executive Government which though separate fall under the common umbrella off the Executive Government. This was not merely the difference which exists between two departments off the Executive Government which though separate fall under the common umbrella off the Executive Government. In this connection reliance was placed upon the decision reported in AIR 1965, Motilal v. Union of India, Punjab page 444 which I shall discuss later in this judgment. In this connection on behalf of the petitioner reliance was placed also in the statements and contentions, made in the affidavit in opposition filed on behalf of the Secretary, Legislative Assembly. My attention was drawn to paragraph 6 of the said affidavit in opposition, paragraphs 11 and 12 where the case has been made out that the petitioner had been appointed in connection with the affairs of the State and as such he was governed by the rules framed under Article 309 of the Constitution and not under Article 187 of the Constitution and therefore he was transferred in accordance with Rule 24 read with Rule 97 of the West Bengal Service Rules. It was, further, asserted that the petitioner was not one who was governed by the rules framed under Article 187 of the Constitution as he was originally recruited as a Government servant and thereafter transferred to the West Bengal Legislative Assembly Secretariat. He had been placed as a Government employee in the West Bengal Assembly Secretariat by the Government and therefore he could always be called back by the said employer. It was further urged that in the course of the submission on behalf of the Secretariat that the petitioner had never applied for the job of the reporter and that the application dated 6th of September, 1965 could not be found in the Assembly record. This is incorrect. That this not correct is the submission on behalf of thy petitioner. After having persued the documents annexed and produced before me I am satisfied that this submission on behalf of the petitioner is correct that the petitioner did apply for the post of reporter in the Legislative Secretariat and he was so appointed. It further Appears that the petitioner was a temporary typist before his appointment to the West Bengal Secretariat in the Public Health and Engineering Directorate. It further Appears that the petitioner was a temporary typist before his appointment to the West Bengal Secretariat in the Public Health and Engineering Directorate. If the petitioner did not hold any gazetted post under the State Government he cannot be considered to he one who was included in the West Bengal General Services see in this connection, Rule 5(4) of the West Bengal Service Rules, Part 1. 5. AS I have mentioned before that annexure 'Y' to the affidavit in Opposition filed on behalf of the West Bengal Secretariat specifically mentioned that there was such an application made by the petitioner. The said document indicated that the petitioner was selected for appointment by the Assembly. Annexure 'B' of the affidavit in reply also indicates that the petitioner applied for release from Public Health and Engineering Directorate and Annexure 'Y' of the said affidavit also indicated that the Assembly had requested the said Directorate to release the petitioner so that the may join his new post in this Assembly Secretariat." It is correct, as was suggested on behalf of the petitioner that the order of release by the Government was necessary since a Government servant cannot unilaterally sever his connection with the Government by resignation. Reliance in this connection may be placed for understanding this position on the decision in the case reported in AIR 1973 SC page 694 at paragraph 51 Union of India v. Gopal and AIR 1981 SC page 789 at paragraph 13 Kasilingam v. C. S. G. College. I find corroboration of this fact by the service record of the petitioner which at my request was produced by the Government. From this ' it appears that for terminal and other benefits the petitioner's service from 1.8.64 prior to his joining on 1.11.66 in the West Bengal Secretariat has not been reckoned for computing the terminal benefits which the petitioner would be entitled to on his retirement for version etc. The original of the service record wan produced and a Xerox copy war, supplied. I directed that the Xerox copy which was handed over to me. be kept as a part on record of this case. This position is, further corroborated by the fact that there was no order of transfer either under Rule 24 and/or 97 of the West Bengal Service Rule, Part 1 in the case of the present petitioner. I directed that the Xerox copy which was handed over to me. be kept as a part on record of this case. This position is, further corroborated by the fact that there was no order of transfer either under Rule 24 and/or 97 of the West Bengal Service Rule, Part 1 in the case of the present petitioner. The order of the Government being Annexure 'Z' to the affidavit-in-Opposition is not an order or/of sending the Government servant to 'foreign service' which are guided by different provisions. On the other hand, the Government's case in the affidavit filed on its behalf is not that the petitioner was sent by the Government to the Legislative Assembly either on transfer or on deputation. The Government asserts in its affidavit in opposition in paragraph 6, sub-paragraph (e) that the petitioner was initially appointed' to the post of junior Bengali Reporter. Therefore, the order of the Government in Annexure 'Z' cannot be an order of transfer to foreign service. Transfer to foreign service should be in compliance with Rules 97 to 116 of the West Bengal Service Rules, Part I. None of these rules and particularly Rules 97, 100, 101, 102, 103 and 109 were complied with. On the other Hand, it appears that the petitioner was at first appointed as Junior Bengali Reporter. He was then appointed as a Senior Bengali Reporter-See Annexure 'A' to the petition. He was confirmed in the same post-See Annexure 'B' to petition. These are all permanent Assembly posts. In this connection it has to be borne in mind that when the petitioner was in the Public Health and Engineering Department the petitioner did not have any lien to the post. In this connection reference may be made to Rule 5(23) of the West Bengal Service Rules, Part I at page 8. The impugned orders which have the effect of extinguishing lien of the petitioner to a permanent post in the Assembly Secretariat is illegal. This position would be clear from tine several decisions discussed herein. A lien can only be lost either by dismissal in accordance with Article 311 of the Constitution which was not done in this case or by superannuation. It is hot also the case. This position would be clear from tine several decisions discussed herein. A lien can only be lost either by dismissal in accordance with Article 311 of the Constitution which was not done in this case or by superannuation. It is hot also the case. The notification of 1966 which is referred to on page 17 of the affidavit in Opposition filed on behalf of the Government could only refer to the executive posts under the Constitution because otherwise the said notification would come into conflict with the other constitutional provisions. An examination of the rules governing the employees of the West Bengal Secretariat in the context of our constitutional requirements can only mean that such employees were separate. Assembly Secretariat rules specifically deals with the posts governed by Article 187. Therefore, it cannot be accepted that the same posts would be governed by the rules under Article 3(9). 6. IN aid of the proposition that the petitioner held a specified ex-cadre job as Chief, Bengali Reporter of the West Bengal Legislative Assembly and he could not be transferred unilaterally in the manner purported to be done, several decisions were relied. One of the decisions is the decision of the Gujarat High Court reported in 1977 (2) SLR 551 (Bhagawati Prasad Gordhandas Bhatt vs. The State of Gujarat). There the learned Judge Mr. Justice D. A. Desai observed that Civil Defence Organisation had its own set up. It had its own officers. It might be that for the members of the Civil Defence Organisation, drill march or such other activities which the police force had to undertake might have been prescribed and that the petitioner might have been sent to import instructions in respect of such duties. But the police force and the members of the police department of the Gujarat State was entirely independent and separate from Civil Defence Organisation. The word 'deputation' itself connected service outside the cadre or outside the parent department. He could be deputed to other department. If a person was holding an office and was bound to render duty it must be in the cadre and the post to which he was appointed. If he was to be taken away from that post and sent to another department it was said that he was being deputed to that department. He could be deputed to other department. If a person was holding an office and was bound to render duty it must be in the cadre and the post to which he was appointed. If he was to be taken away from that post and sent to another department it was said that he was being deputed to that department. Now, when one was in the department or was in the cadre, the proper authority could post him wherever it was open to the authority to post such a person belonging to that cadre and take duty which was assigned to them. But if an employee was to be taken out of cadre and sent altogether to another field of service, it could never be done without his consent or at other places of service. Transfer was always limited to equivalent posts in the same cadre and of the same department. Deputation and transfer basically differs from one another in that transfer could only be to equivalent posts in the same cadre; deputation must be in department other than the parent department where even equivalent might not have been determined. Transfer is a matter of routine and it was an incident of service and can only be challenged on the ground of malafide or violation of statutory rule relating to transfer. Deputation could only be with the consent because the employee joined the department to render service in that department and he could not be made to serve somewhere else, might be in a post much lower to that post. IN that event he would have never joined the service. If such power was to be conceded contract of service might degenerate into a contract of slavery, according to the learned Judge, because the slaves could be employed in any manner and or any work human or inhuman as the master or owner of the slave desired. Such was not the position of the employees of the State Government, concept of deputation taken within its sweep rendering service outside the parent department or outside the cadre and therefore, with it carries concept of allowance as deputation allowance. Therefore, it was not conceivable that deputation could be ordered without the consent of the concerned employee. Such was not the position of the employees of the State Government, concept of deputation taken within its sweep rendering service outside the parent department or outside the cadre and therefore, with it carries concept of allowance as deputation allowance. Therefore, it was not conceivable that deputation could be ordered without the consent of the concerned employee. It thus appeared well established that the petitioner in that case who was a Police Inspector could not be transferred to Civil Defence Organisation nor could he be sent on deputation without his consent. Thus on principle, according to the learned Judge, on the authority it appeared clear that a person belonging to a cadre could not be deputed or transferred outside the parent department and outside the cadre. He could be sent on deputation but that too with his consent. Deputation could not be without the consent of the person to be deputed. Viewed from this angle, the order was not sustainable. The learned Judge observed a person belonging to a cadre could not be deputed or transferred outside the department or outside the cadre. In this case it was strongly contended that the petitioner was the Chief Bengali Reporter belonging to an ex cadre post and certainly not belonging to the same cadre as one in the Agricultural and Information Department of the Govt. of West Bengal. Therefore, he having been according to the petitioner, originally appointed afresh as a Bengali Reporter in the West Bengal Legislative "Secretariat which is an independent organisation could not have been sent out of that organisation without his consent. On the other hand, on behalf of the respondents it was contended that the facts in that case were entirely different. Relience in this connection was placed on a decision of the Supreme Court "in the case of State of Mysore v. H. Papanna AIR 1971 S. C. page 191 where dealing with the Mysore University of Agricultural Sciences Act, 1963 the Court held that Section 7(5) of the Act which authorised the issuance of notification whereby the Government servants were to cease to hold the civil post which they held under the State of Mysore at the time when the notification was issued was unconstitutional, the reason being that it amounted to removal from civil post under the State in contravention of the provisions of Article 311 of the constitution. My attention was drawn to paragraphs 5, 7, and 8. The Supreme Court in these paragraphs has emphasised that it was not proper to judge the question as to whether as a result of the impugned action the person concerned was a loser. What happened as a result of the notification was an extinction to which he has been specifically appointed. Similarly, it was urged in support of the petitioner on the basis of the said decision that in the post of the News Reporter in the Information and Agricultural Department of the Government of West Bengal whether the petitioner would not be a loser so far as his pay or emoluments were concerned was not at all relevant. The petitioner held a specific ex-cadre post or position and he could not be removed without his consent from that position. For the similar purpose, reliance was placed on certain observations of the Calcutta High Court in the case of State v, Hirendra Nath, AIR 1967 Cal. page 285 where the Division Bench of this Court was concerned with the Registrar of Rent Controller's Office and the Court expressed the view that transfer from a specified statutory post to another post could not be made. The Registrar of Rent Controller's post was specified statutory post created by a statute. The Court was of the view that on the introduction of the statute that a person appointed as the Registrar not belonging to any cadre post was appointed to that post could not be transferred. In that case the petitioner was permanently appointed as the Registrar of the Rent Controller's Court, Calcutta under Section 26 of the West Bengal Tenancy Act, 1956 was transferred as a Certificate Officer under the Bengal Public Demands Recovery Act in a certain Revenue Division. Although the pay of the Certificate Officer's post was less than that of the Registrar of the Rent Controller's Court, the petitioner in that case was allowed to draw his pay in the Registrar's pay scale. The transfer was challenged by the petitioner in that case, on the ground that the post of the petitioner was not transferable and therefore the transfer was illegal. The Court upheld this contention. The transfer was challenged by the petitioner in that case, on the ground that the post of the petitioner was not transferable and therefore the transfer was illegal. The Court upheld this contention. On behalf of the petitioner before me in the instant case it was similarly contended, but on behalf of the respondents it was emphasised that Registrar was a statutory position created by the Statute but that was not the position, according to the respondents before me, in the instant case. . 7. MY attention was also drawn to a decision of the Allahabad High Court in the case of Dr. P. B. Saksena vs. Director, M. and H. Services AIR 1959 ALL 629 where the petitioner was appointed by the Governor in the post of the Anesthetist attached to the State Hospital at Kanpur and was confirmed in that post ultimately and the appointment order imposed no express obligation for transfer from that post and the post did not belong to any regular service or other cadre but was an individual post attached to the two hospitals at Kanpur. Therefore, the petitioner could not be transferred in that case. On behalf of the petitioner reliance was placed on this decision also but it was contended on behalf of the respondents that in the instant case the petitioner belong to the cadre of Bengal General Services and therefore the principles of that decision would not be applicable to the instant case. 8. IN aid of the submission that the office or the post held by the petitioner could not be interfeared with in the manner purported to be done reliance was placed on the decision in the case of P.L Dhingra v. Union of India AIR 1958 SC page 36 and reliance was placed on paragraph 5 on words to stress the history of services under the State from the pre Constitution days, up to the constitutional provisions. Reference was made to Articles 310 and 311 of the Constitution which were the two articles which had grouped under the heading "Services" in Chapter 1 of part xiv which dealt with services under the Union and the States and in paragraph 15 it was compared with Article 311 of the Constitution. For my immediate purpose I do not think that it is material to discuss in detail the said decision. For my immediate purpose I do not think that it is material to discuss in detail the said decision. Learned advocate of the petitioner also drew my attention to a decision of the Full Bench of the Punjab High Court in the case of Moti Lal v. Union of India AIR 1965 Punjab page 444 and reliance was placed on certain observations at paragraph 10 of the said judgment at page 447. It is also not necessary for the purpose of deciding the points in issue in this instant application before me to discuss the said case in detail. 9. LEARNED Advocate also drew my attention to a decision of the Supreme Court in the case of State of Bihar v. S. B. Mishra AIR 1971 SC page 1011. This decision, however, was mainly relied on because of the allegations made against the petitioner in the affidavit-in-Opposition of the Government on behalf of the Legislative Assembly. It was submitted that in the affidavit in opposition certain allegations have been made against the petitioner which amounted to a stigma and therefore it was a punishment. It was emphasised on the authority of the said decision that for the applicability of Article 311 of the Constitution it was not necessary that there should be express words of stigma attributed to the conduct of the Government servant by the impugned order. There was no rigid principle that one had only to look to the order and if it did not contain any imputation of misconduct or word attaching stigma to the character or imputation of a Government servant- it must held to have been passed in the ordinary course of administrative routine. But it was emphasised that in this case in view of the averments made in the affidavit in opposition and the stand taken by the respondent the petitioner has been stigmatised without following the provisions of Article 311 of the Constitution. Therefore, the impugned action on the part of the respondents was bad and unconstitutional. 10. RELIANCE was placed on the decision of the learned single Judge of the Delhi High Court in the case of Ganga Prasad v. Delhi High Court 1977 (11 SLR, page 176 where the learned Judge emphasised that subject to any provision to the contrary, a public servant was liable to be transferred within the cadre and the establishment. 10. RELIANCE was placed on the decision of the learned single Judge of the Delhi High Court in the case of Ganga Prasad v. Delhi High Court 1977 (11 SLR, page 176 where the learned Judge emphasised that subject to any provision to the contrary, a public servant was liable to be transferred within the cadre and the establishment. Unless there was a special provision in that behalf to the contrary a civil servant was not liable to be transferred outside the cadre or the establishment except on deputation. He might, however, be transferred outside the cadre or establishment otherwise than on deputation only by his consent. Such a transfer without his consent would ordinarily amount to unilateral change in the condition of service and could be brought about only by a statutory sanction. Any transfer of a civil servant outside the cadre or establishment whether on deputation or otherwise did not, however, extinguish his lien in the parent office, the civil servant concerned and the new establishment, the lien in the parent office was extinguished and he was absorbed in the new service. The transfer of the petitioner in that case was admittedly neither intra cadre or intra establishment nor one on deputation. It was a transfer outside the cadre and the establishment apparently by a bipartite arrangement between the parent and the new office on account of the need to avoid a dislocation of work for which the staff was concerned. It was found that it was tripartite arrangement subject to the consent of the staff concerned. If a number of such staff exercised the option to be absorbed in the new office it provided the necessary consent to make the arrangement complete and legally binding. In such a case the op tee could be absorbed in the new office and if on the contrary the members of the staff concerned sought repatriation the consent of the absorption was withheld. In such a case the officer concerned had to be repatriated and here would be no question of either extinction of the existing lien or of absorption in the new office. The petitioner in that case it was found had sought repatriation when he exercised his option. In such a case the officer concerned had to be repatriated and here would be no question of either extinction of the existing lien or of absorption in the new office. The petitioner in that case it was found had sought repatriation when he exercised his option. With the exercise of this option by the petitioner the transitory transfer to the new establishment on the basis of the bipartite arrangement between the parent office and the new office ceased to have been effected without any further validity. The learned Judge held that the status of the petitioner vis-a-vis his parent office continued to subsist as before and there was no question of the absorption of the petitioner in the new office. In consequence the petitioner had become entitled to be repatriated and was therefore obliged to go back to the parent office. Learned Advocate for the petitioner also referred me to a judgment of the Allahabad High Court in the case of S.G K. Sangh v. Cane Commissioner 1980 (1) SLR 640 where the Court emphasised that employee of one cane co-operative society could not be transferred to another co-operative society unless the employee belongs to a Centralized Service. 11. RELIANCE was also placed on a decision of the Delhi High Court in the case of Prem Praveen v. Union of India 1973(2) S. L. R. page 659 where the Court was concerned with Fundamental Rules 14 and 15 and emphasised that a Government servant who was recruited in a particular cadre could not be compelled to serve outside his cadre, and also emphasised that once the Government was shown to have the authority to transfer the Government servant the Court would be most reluctant and disinclined to interfere with the exercise of the administrative discretion by the Government on the obviously plausible plea that the administration was the best Judge and in the know of all relevant circumstances to determine as to the desirability or the propriety of any particular posting and at what place of a Government servant. But it is equally well settled that the Court could interfere if the transfer was violative of any legal provisions or was otherwise malafide. 12. But it is equally well settled that the Court could interfere if the transfer was violative of any legal provisions or was otherwise malafide. 12. THE general principles that can be deduced from the decisions and the provisions and the rules are, that an employee (1) cannot be transferred out of his cadre or establishment against his wish ; (2) when appointment is made to a specified post or a specified group of posts, no transfer can be justified merely because the pay is not being affected, (3) the government servant cannot be asked to perform duties which were never expected of him when he was recruited and (4) expectations of future promotions cannot be wiped off by moving a Government servant around. A cadre is the strength of a service or part of a service sanctioned as a separate unit.. THE Assembly Secretariat staff clearly form such a separate unit even if it is assumed or presumed that they form part of the West Bengal General Service. THE Petitioner's appointment was as a Bengali Reporter there. He was not recruited as a member of the West Bengal General Service and then given a post in the service. His special qualification for the post, it was submitted, a news reporter was not the same thing as a Bengali Reporter of the Assembly Secretariat. The order of the Speaker cannot be described as an order of transfer. The order cannot best be considered to be an order of deputation of foreign services. There cannot be any deputation even under Rule 97 without the consent of the employee concerned, in any event, Rule 97 to 116 of the West Bengal Service Rules, Part I have not been complied with. On behalf of the respondents it was submitted that the petitioner had been working a Junior Bengali Reporter in the West Bengal Secretariat. The said post came to be included in the West Bengal General Service and ultimately he was promoted to the post of Senior Bengali Reporter. According to the respondents, the post of Senior Bengali Reporter was and is a gazetted and Class I post as classified in West Bengal Service Rules, Part I. In this connection, reference was made to Rule 5(4) Note 2, Appendix 9 of the West Bengal Service Rules. According to the respondents, the post of Senior Bengali Reporter was and is a gazetted and Class I post as classified in West Bengal Service Rules, Part I. In this connection, reference was made to Rule 5(4) Note 2, Appendix 9 of the West Bengal Service Rules. The post of Senior Bengali Reporter in the Assembly Secretariat was a Class 1 gazetted post and had been included admittedly in Appendix 2 in the West Bengal Legislative Secretariat Rule, 1953. According to the respondents, Rule 6(1) of the West Bengal Secretariat Rules, 1953 all posts specified in the first column of Appendix II and all other posts of officers in the Assembly Secretariat which might be created under Rule 2 in the West Bengal Services were included. Therefore, the transfer of the petitioner was valid. It was further urged that the post of News Reporter was sanctioned by the Government by a Government order. The said post was gazetted and the said post came to be included in the West Bengal General Service. The impugned order does not in any way, according to the respondents, adversely affect the status or pay of the petitioner. The said order had been passed for the benefit and in the exigencies of the public service and in the interest of the administration. The said order was not a penal order. The argument urged on behalf of the petitioner that he was part of the transferred staff would offend the provisions of the Constitution was devoid of substance. It was submitted that the decisions relied upon were entirely different and were rendered on facts and circumstances entirely different It is true as was submitted by the petitioner that the latest rules of pay and allowance there has been non-inclusion of post of News Reporter but the post that the petitioner held in the Assembly Secretariat has been included. The justification of the State Government seems to be that when reference was made to the Pay Commission this post was not there, subsequently, however, the question of pay of post has been referred to the Pay Commission. In these circumstances, it has been urged that the contentions urged on behalf of the petitioner were entirely wrong. 13. The justification of the State Government seems to be that when reference was made to the Pay Commission this post was not there, subsequently, however, the question of pay of post has been referred to the Pay Commission. In these circumstances, it has been urged that the contentions urged on behalf of the petitioner were entirely wrong. 13. IT was submitted that in view of Article 212(2) of the Constitution which provides as follows "(2) No officer or member of the Legislature of a state in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers." It would be inappropriate in any event for (the Court to interfere with the order of the Speaker dated 10th of April, 1980 whereby the Speaker had directed the petitioner not to enter the chamber of the Assembly until further orders. IT was further submitted that if the Court was inclined to pass any order setting aside the transfer order that would really be infructuous in view of the said constitutional provisions, it is true that Speaker is supreme so far as the conduct and the procedure of the legislature is concerned and no Court should exercise any jurisdiction which" would impair this function of the Speaker. But the question urged on behalf of the Speaker on this point, in my opinion now stands settled by the observations of the Supreme Court in Reference No. 1 of 1964 AIR 1965 S. C. page 745 and see also in this connection the observations of the Division Bench of this Court in the case of Syed Abdul v. W. B. Legislative Assembly AIR 1966 Cal. page 363 at 366. The principles seem to be that if the order of the Speaker suffers from the illegality and affect the legal or fundamental rights of a citizen then the said order can be called in question in the Court. If by any impugned action a Speaker in effect terminates the services of any employee of the Secretariat of the Legislative Assembly which infringes the provisions of Constitution then such exercise of power in my opinion, can be properly called in question. 14. If by any impugned action a Speaker in effect terminates the services of any employee of the Secretariat of the Legislative Assembly which infringes the provisions of Constitution then such exercise of power in my opinion, can be properly called in question. 14. HAVING considered these decision and the provisions of the West Bengal services Rule as well as West Bengal Legislative Secretariat Rules and the provisions of the Constitution and keeping in background the importance of the need to keep legislature completely separate from the influence of the executive, in my opinion, the petitioner on the facts and in the circumstances was not an employee of the Government by the West Bengal General Service Rules. The petitioner's original appointment as a typist in the Public Health and Engineering Department of the West Bengal Government and his subsequent selection and appointment after giving up his post as a typist is not a continuous appointment. The petitioner was specifically selected and specifically appointed pursuant to his application made for the post of the reporter in the West Bengal Legislative Assembly Secretariat and he was subsequently promoted to the post of Chief Reporter. The petitioner did not belong to West Bengal General Service and as such he did not go on deputation to the West Bengal Legislative Assembly nor was he sent on foreign service terms to the West Bengal Legislative Secretariat. He, therefore, could not be recalled by the West Bengal Government to be sent back for employment in any post in the West Bengal General Services. The action of releasing the petitioner of the West Bengal Legislative Assembly in the facts and the circumstances of the case virtually amounted to a termination service of the petitioner in violation of the provisions of his legal rights. In the premises, the said action cannot be sustained. As mentioned hereinbefore, one of the points urged in support of this petition was that the impugned order was passed malafide. In the premises, the said action cannot be sustained. As mentioned hereinbefore, one of the points urged in support of this petition was that the impugned order was passed malafide. It is true that the close proximity of certain dates specially the petitioner obtaining Doctorate Degree, the recommendation of the Speaker on 8th of April, 1980 to the Minister, Finance, for financial help to enable the petitioner to publish his thesis and the complaint subsequently on the 9th of April, 1980 by 24 persons followed by the order of the Speaker on the 10th of April, 1980 without giving an opportunity to the petitioner to explain the complaint as well as the facts that the proposal was immediately made on 1st and 2nd July, 1980 and the order of the Minister on the 4th of July, 1980 for the creation of a post of news reporter in. the Department of Information and Cultural Affairs and the order of the Speaker on the 4th of July, 1980 and the order of the Deputy Secretary, Department of Information and Cultural Affairs placing the petitioner as news reporter under that department on identical pay and scale and the fact that the petitioner's post was not referred to the pay Commission, do raise serious doubt as to whether the impugned action was taken for really administrative reasons of the impugned action was to appease 24 reporters without giving the petitioner an opportunity, but in the facts and circumstances of the case, the facts are not sufficient, in my opinion, to come to the conclusion that the impugned order was passed malafide by the Speaker. In any event in the view I have taken it is not necessary for me to examine the question in any greater detail. 15. IN the premises, for the reasons I have indicated before, the order of the Hon'ble Speaker dated 4th of July, 1980 is hereby set aside and the respondents are directed not to give effect to the said order and to give to the petitioner all consequential reliefs This however, will not in any event, prevent the Hon'ble Speaker from placing the petitioner's service in such manner within the Assembly as he considers fit and proper taking all factors into consideration. 16. THE rule is made absolute to the extent indicated above. 16. THE rule is made absolute to the extent indicated above. In the facts and circumstances of the case there will be no order as to costs. Operation of this order will remain stayed for four weeks from today. The interim order already passed will continue in the meantime. Rule made absolute to the extent indicated. No costs.