P.C. Borooah, J.

1. The Petitioner Dr. Susanta Kumar Sarkar, who is now employed as a Professor-Director, Department of Pathology and Bacteriology, N.R.S. Medical College, Calcutta, has in this application under Article 226 of the Constitution, challenged the validity of two orders, namely, (i) order No. Estt/8025/3A-16/74 dated June 19, 1974, appointing him to act as a Medical officer on supernumerary duty to act as Professor and Head of the Department of Pathology and Bacteriology, Bankura Sammilani Medical College, Bankura, with effect from the date on which he joins as such until further orders. A copy of this order is annEx. 'C' to the petition; and (ii) an order dated June 19, 1974, passed by the Principal, N.R.S. Medical College, Calcutta, asking the Petitioner to hand over charge to Dr. S.K. Gupta, Reader, Department of Pathology and Bacteriology, N.R.S. Medical College, in terms of the aforesaid order. A copy of this order is annEx. 'H' to the petition.

2. It is submitted by Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the Petitioner, that the post to which the Petitioner has been sought to be transferred, is not within the cadre of the West Bengal Health Services and as such the order of transfer is in violation of Rule 19 of the West Bengal Health Services (Cadre, Pay and Allowances) Rules, 1958 (hereinafter referred to as the Health Services Rules'). The second submission of Mr. Mukherjee is that the transfer of the Petitioner from the post of a Professor-Director to the post of a Professor on supernumerary duty is a reduction in rank, as a person holding the post of a Professor-Director becomes entitled to, in addition to his basic pay, certain special pay and administrative allowance and the Petitioner will lose such special pay and administrative allowance if he is to join the post to which he is sought to be transferred.

3. Mr. Shiblal Bose, learned Advocate appearing on behalf of the Respondents, has contended that no extra post has been created at Bankura, but the Petitioner, if he goes to Bankura, will hold his regular position in the Gradation List and in the total pool or cadre of the West Bengal Health Services as a whole. It is also submitted that the Petitioner is being sent to Bankure as his services are required there in the public interest, but as the allotted quota of the Bankura Sammilani Medical College has already been idled up, the Petitioner has been shown as on supernumerary duty and no extra post has been created in the cadre, but the Petitioner will continue to draw his usual pay and allowances against the substantive post he holds in the cadre.

4. In accordance with Rule 19(a) of the Health Services Rules all Medical Officers of the West Bengal Health Services are liable to be transferred to any post in that cadre including posts in the rural areas in the exigency of public service.

5. The question, therefore, which has to be determined is whether the post to which the Petitioner is sought to be transferred is a post within the cadre of the West Bengal Health Services.

6. Rule 2A of the Health Services Rules provides that from January 1, 1968, there would be one unified cadre of Health Services to be designated as the 'West Bengal Health Services' and it would replace the existing cadres set out in the said Rule and shall comprise all posts, permanent and temporary, included in the said cadre as well as such other posts as may be incorporated in the unified cadre by orders of the Government issued from time to time. It has thus to be seen whether the post of Professor and Head of the Department of Pathology and Bacteriology, Bankura Sammilani Medical Collage, Bankura, has been included in the cadre posts of the West Bengal Health Services by any notification of the Government.

7. Mr. Shiblal Bose, learned Advocate appearing for the Respondents, was unable to produce before me any notification to that effect, but according to Mr. Bose, the post to which the Petitioner is sought to be transferred must be deemed to be a cadre post as the Petitioner will be drawing his usual pay and allowances. In my view, this argument of Mr. Bose is fallacious. If this was the correct position, then a Professor-Director in the West Bengal Health Services can be transferred to a post of Lecturer or a Reader and given the same pay and allowances. This obviously cannot be done as will presently appear.

8. On September 8, 1967, the Secretary to the Government of West Bengal (Department of Health) issued a letter No. Estt/5412/ST-15/66 to the Director of Health Services, West Bengal, prescribing the standard of post-graduate qualifications and teaching experience for the purpose of teaching appointments in the State Medical College and other teaching institutions--a copy of this letter is annEx. 'D' to the petition. In the said letter it is laid down that for appointment to the different teaching ranks the Medical officer must have past teaching experience in the subject as indicated in the said letter and it is also clear from the said letter that a Medical officer has to go up the ladder from a Lecturer to an Assistant Professor, then Reader, then an Associate Professor and then a Professor and lastly a Professor-Director. Therefore, a rank of Professor-Director is definitely higher than the rank of a Professor because to become a Professor-Director fifteen years' total teaching experience is necessary out of which three years should be as a Professor. It has been further mentioned in the said letter in para. 3(a) that the eligibility of a Medical officer for a academic status shall be subject to the primary condition that he must have capacity for teaching and his elevation in teaching rank shall also depend on his past teaching performance.

9. The Supreme Court in the case of Union of India v. K.P. Joseph and Ors. A.I.R. 1973 S.C. 303 held in reference to a certain administrative order that it conferred a right to the Respondent to have his pay fixed in the manner specified in the order and that was a part in the condition of his service. In the instant case, the letter, the copy of which is annEx. 'D', which lays down the qualification and the teaching experience necessary to attain the different ranks in the gradation of the West Bengal Health Services, must necessarily be deemed to be a part of the condition of service of a member of the said Services. Therefore, in my view, a Professor-Director cannot be transferred to a post which is lower in the teaching rank.

10. It is an admitted position that there are three sanctioned posts at Bankura Sammilani Medical College and all the three posts are filled up. The post to which the Petitioner is sought to be transferred is not a sanctioned post.

11. Rule 6 of the West Bengal Health Services Rules, pt. I, defines 'cadre' to mean the strength of a service or a part of a service sanctioned as a separate unit. Therefore, the post of Professor and Head of the Department of Pathology and Bacteriology, Bankura Sammilani Medical College, Bankura, not having been sanctioned as a separate post in the unit at Bankura cannot be deemed to be a cadre post within the definition referred to above. Furthermore, the absence of any notification in accordance with Rule 2A of the Health Services Rules including the said post in the cadre can lead to only one conclusion, viz., that the post to which the Petitioner is sought to be transferred is a non-cadre post. Therefore, the impugned order seeking to transfer the Petitioner to Bankura is not in conformity with Rule 19(a) of the Health Services Rules.

12. As regards the second submission of Mr. Mukherjee, viz., that if the Petitioner is transferred there will be a reduction in rank, I have already mentioned about the different teaching ranks referred to in the letter, a copy of which is annEx. 'D' to the petition. Moreover, the special pay and allowances to which the Petitioner is entitled to when holding the post of a Professor-Director will no longer be available to him if he joins the post at Bankura to which he is sought to be transferred.

13. Mr. Bose tries to argue that special pay is an addition in the nature of pay granted to a Government servant under certain considerations and stoppage of special pay is not necessarily a loss in the pay of a Government servant and therefore, by losing the special pay and allowance the Petitioner cannot be deemed to be transferred to a post with a lesser pay.

14. The question of the Petitioner's losing his special pay and allowance on the proposed transfer and whether it would tantamount to a reduction in rank need not be gone into as I have already held that the post to which the Petitioner is sought to be transferred is lower in the teaching scale and therefore, if the transfer is given effect to, there will be a reduction in rank.

15. In the result, this application must succeed and the Rule is made absolute. I direct the Respondents to cancel, revoke and not to give effect to the impugned order copies of which are annexes. 'G' and 'H' to the petition and I also further direct that the said orders be quashed. Let appropriate writs issue accordingly.

16. In the circumstances of the case, there will be no order as to costs.