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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

RESERVED ON: 19.03.2026

DELIVERED ON: 17.04.2026

PRESENT:

THE HON’BLE MR. JUSTICE REETOBROTO KUMAR MITRA

WPA NO. 12309 OF 2025

DR. DEBASHIS HALDER

- VERSUS –

THE STATE OF WEST BENGAL AND ORS.

Appearance:

Mr. Samim Ahammed, Adv.

Mr. Arka Maiti, Adv.

Ms. Gulsanwara Pervin, Adv.

Ms. Saloni Bhattacharya, Adv.

Ms. Reshma Khatun, Adv.

….. for the Applicant/Petitioner

Mr. Kalyan Bandopadhyay, Sr. Adv.

Ms. Pramiti Banerjee, Adv.

Mr. Arka Nag, Adv.

Mr. Debayan Sen, Adv.

Mr. Niket Ojha, Adv. ….. for the State

Mr. D. N. Maiti, Adv.

Mr. A. Santra, Adv. …… for the respondent no. 5

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Reetobroto Kumar Mitra, J.:

1. The petitioner is aggrieved that he has been transferred from the medical

college of his choice in Howrah, while serving as a senior resident to

Gazole, Malda.

2. The petitioner is a qualified medical practitioner, having successfully

completed his post-graduate degree in Anesthesiology from the Medical

College, Kolkata, which is affiliated to the West Bengal University of

Health Sciences (for short, “WBUHS”). The petitioner is duly registered

with the Medical Council in the batch of 2020-2023. The petitioner

participated in the counselling process and had also executed a bond,

required of persons willing to serve as senior resident based on their final

MD examination marks, in terms of the notification dated February 20,

2025, which invited eligible candidates to participate in the centralized

counselling process for selection and posting of incumbents to various

government hospitals in West Bengal.

3. Upon participation, the petitioner had secured Rank 24 in the merit list in

Anesthesiology and was allotted the post of senior resident at the

Department of Anesthesiology, Howrah District Hospital. This was in

terms with the self-declaration given by the petitioner that he was willing to

be engaged in the Howrah District Hospital under the indemnity bond.

The self-declaration was given on February 27, 2025.

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4. The petitioner had served the first year in the Howrah District Hospital,

being the hospital of his choice, and thereafter was asked to join Gazole

State General Hospital, Malda. It is this posting from Howrah to Malda

which has been assailed in this writ petition.

5. Mr. Samim Ahammed, appearing for the petitioner, has raised the

following issues:

a. The transfer of the petitioner is contrary to the self-declaration

that he would not seek any change from the place of

engagement opted by him, which was finalised.

b. The Standard Operating Procedure (hereinafter “SOP”)

envisaged in the Memo No. HF/O/HS(MA)/222/HFW-

43011(11)/152/2022-ADMIN dated February 16, 2023 (page

82 of the writ petition) has been grossly violated.

c. The SOP contemplates engagement of candidates after

completion of their post-graduate degree at different medical

colleges and hospitals as senior resident for one year through

counselling. Thus, upon counselling, the Howrah District

Hospital was allotted to the petitioner.

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d. Therefore, his appointment to the Howrah District Hospital

could not have been changed and he could not have been

asked to join in Malda. Thus, there has been a gross deviation

from the SOP.

e. Of the entire list of 871 candidates, there has been a selective

procedure adopted for only two persons, including the

petitioner, which is in violation of the SOP.

f. The SOP has been followed for all the other 869 candidates

but not for the petitioner and another.

g. In the list of vacancies from which interested persons had to

opt/choose their medical college/hospital, Gazole in Malda

was not even there with a vacancy. Thus, the vacancy in Gazole

was created only out of bias against the petitioner and put him

in difficulty.

h. The petitioner had written to the concerned authority on May

27, 2025, and finally on May 29, 2025, challenging the

unilateral posting of the petitioner from the medical college of

his choice to a far-flung place in Malda.

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i. This posting was not just unilateral, it is also the result of an

administrative bias and malice in law.

j. The concept of malice in law stems, in this case, from the

participation in the protest regarding an unfortunate event that

had unfolded in the R. G. Kar Medical College and Hospital.

Thus, the administrative bias was really in the nature of a

retributory measure to teach the petitioner a lesson, under the

garb of an administrative requirement which allegedly

warranted such posting.

k. The petitioner has relied upon a decision of this Hon'ble

Court by the learned Single Judge in WPA 12496 of 2025 (Dr.

Aniket Mahata -vs- The State of West Bengal & Ors.), which

was duly affirmed by a Division Bench of this Hon'ble Court

in MAT 1736 of 2025 (State of West Bengal & Ors. Vs. Dr.

Aniket Mahata & Ors.), as well as the fact that the order of the

Division Bench has been upheld by the Hon'ble Supreme

Court of India in Special Leave to Appeal (C) No(s).

35788/2025 on December 11, 2025.

6. Thus, in view of the aforesaid submissions, the petitioner ought to be re-

posted to the original college of his choice, Howrah District Hospital, and

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the transfer by way of Memo No. HF/O/HS(MA)/725/SF-11/2025 dated

May 26, 2025, should be set aside.

7. Mr. Kalyan Bandopadhyay, learned Senior Advocate appearing for the

respondent, has defended the order of posting on the following grounds:

i. The petitioner is in the second year of his residency and is

thus not covered by the SOP. The initial appointment, which

is for a period of one year, is covered by the SOP. The initial

appointment is thus the result of the counselling process as

specified in the SOP, while the second and third years are not

based on counselling.

ii. It is true that Gazole State General Hospital was not a hospital

included in the list of options for Anesthesiology. The hospital

had not been upgraded and a seasoned Anesthesiologist was

not required at the time of counselling.

iii. He has placed reliance on a Memo No.

CMOH/MLD/Estb/649 dated March 20, 2025, by which

Gazole Rural Hospital has been upgraded to the category of

"State General Hospital".

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iv. In fact, he also drew support from the document saying that

funds for renovation of the building had been approved and

subsequent thereto various surgical procedures, including

Orthopaedic and General Surgery, will occur at the said

hospital in future, on account whereof an Anesthesiologist was

required at the said hospital.

v. Thus, the posting of the petitioner cannot be termed as unjust,

arbitrary, or retaliatory in any manner whatsoever.

vi. In so far as the applicability of the decision in Dr. Aniket

Mahata (supra) is concerned, this particular case is completely

different from that of Dr. Aniket Mahata. Dr. Aniket Mahata

was a first-year incumbent and thus covered by the counselling

process, and truly the transfer could not have been made. In

the instant case, since the petitioner is a second-year senior

resident, the applicability of the counselling round to the

petitioner is not applicable. There is no question of the

counselling round extending to the petitioner, the window of

retaining the hospital/medical college of the incumbent's

choice is restricted to the first year only. For the second and

third year, there is no such process through counselling which

can bind the State to retain such an incumbent in the hospital

of his choice.

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vii. Thus, the State authority is within its right to post a petitioner

after completion of the first year as a senior resident.

Therefore, this case is not covered by Dr. Aniket Mahata

(supra).

viii. The petitioner, while executing the bond, makes a specified

declaration that he is willing to work in multiple

speciality/super speciality hospital/secondary/tertiary level

hospitals in West Bengal for a continuous period of three

years. Thus, the petitioner by his own accord has agreed to

serve the State in any medical college, as specified in the bond,

throughout the State of West Bengal. Hence, he cannot claim

a right not to be transferred from the college of his choice for

the entire tenure of three years.

ix. He has placed reliance on three decisions of the Hon'ble

Supreme Court of India:

I. 1989 2 SCC 602;

II. 2009 11 SCC 678;

III. 2022 12 SCC 1.

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8. I have heard learned counsel for the parties and perused the record and

gone through the material on record.

9. A few admitted facts are relevant before embarking on the adjudication of

this matter.

10. The admitted facts are summarised as under:

a. The petitioner is a successful candidate having secured Rank

24 in the merit list, and was allotted the post of senior resident

at the Department of Anesthesiology, Howrah District

Hospital.

b. The petitioner had executed a self-declaration form for SR

bond engagement affirming that he would not request any

change of the place of engagement. The place of engagement

was given as the Howrah District Hospital.

c. In the final engagement list published on May 26, 2025, the

petitioner was found to have been posted at Gazole State

General Hospital, Malda.

11. On this very short conspectus, the disputes have arisen.

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12. The disputes in a nutshell are that the petitioner ought not to have been

posted at Gazole, but in Howrah, for the following reasons:

a. Gazole was not a hospital featuring in the list of original

vacancy matrix.

b. The petitioner, due to his rank, was entitled to be posted in

Howrah which was his first preference and not elsewhere.

c. The posting at Gazole is on account of a clear departure from

the established SOP.

13. This has been refuted by the respondent on the following terms:-

a. Transfer is not a matter of right.

b. Hence, the transfer of the petitioner to Gazole was due to

need-based reasons and cannot be challenged by the

petitioner, as he had undertaken to work in any hospital in

West Bengal. The issues of SOP and transfer based on the

counselling are restricted to students of the first year only. The

petitioner being in the second year cannot claim the

application of the counselling process for any beneficial

transfer.

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14. To appreciate the rival contention, it is imperative to first understand the

entire process of appointment and posting of doctors as senior residents

under indemnity bond in various medical colleges/teaching institutions in

West Bengal.

15. Doctors with requisite qualification, as specified from time to time, are

given the option to apply and obtain posting as senior resident on the basis

of merit list and on the basis of the counselling rounds. The SOP

contained in Memo No. HF/O/HS(MA)/222/HFW-43011(11)/152/2022-

ADMIN dated 16th February, 2023, clarifies in clause 6 that the Director

of Medical Education will arrange to collect the particulars of all

candidates from the concerned medical colleges, which would include,

amongst others, the rank obtained in the final MD examination. The

Directorate of Medical Education would thereafter, along with the

concerned Branch of the Department (MERT), arrange engagement of

such candidates completing post-graduate degree at different

hospitals/teaching institutions as senior resident for initial one year through

counselling process based on merit list prepared on the basis of the

collected stated particulars (as in clause 6) of SOP.

16. The SOP also specifies that after completion of the first year as per the

bond service by such candidates, the Director of Health Services along

with the concerned Branch of the Department (HS-MA) will arrange for

appointment of such candidates at different secondary tier hospitals and

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rural hospitals in the State as Senior Resident “through further

counselling”, “based on the merit list already prepared” on the basis of

collected stated particulars. Thus, the stated particulars and the counselling

process will together form the merit list which will decide as to where a

candidate will be posted. Thus, the higher the rank of the candidate and

depending on his choice, the more likely he is to get a college of his

choice/preference. Thus, if a candidate has chosen a particular hospital, he

has the right to be posted there provided no other candidate with a better

rank than him has already opted for that particular seat or for that

particular seat in that hospital.

17. Thus if there is a single vacancy in a college and if a higher ranked

candidate has already opted for a particular post in a particular hospital as

senior resident, lower ranked candidates, even if that particular college is

their first preference, will not get posted there.

18. This is the process of appointment and/or posting of a candidate to a

particular college.

19. The applicability of the SOP is not restricted to the first year candidates

only. The SOP merely states that posting in the first year will not ensure

nor grant a right to any candidate that he gets posted to the same hospital

for the next year or the years thereafter. Thus it is possible that Candidate

“A” gets a posting in Hospital “X” in the first year, but is not able to obtain

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the same hospital in the next year, if a higher ranked candidate in the merit

list has opted for it.

20. The petitioner has opted for a post in Anesthesiology in Howrah Medical

College and Hospital where there were two vacancies.

21. The petitioner was initially posted at Howrah. However, in the second

year, the petitioner for reasons which are not very clear from the records

was posted at Gazole.

22. The reasons sought to be furnished by the respondent are that Gazole,

though not featuring in the vacancy list because it was not a State General

Hospital at the time, has been specifically upgraded by Memo No.

CMOH/MLD/Estb/649 dated March 20, 2025. Thus, the said hospital

required an Anesthesiologist at Gazole, Malda, to assist in Orthopaedic

and General Surgeries which would take place in the said hospital. Thus,

the petitioner being an Anesthesiologist and having executed an indemnity

bond, thereby agreeing to serve in hospitals in West Bengal, was duty

bound to take up the job of Anesthesiology at Gazole. There is, according

to the respondents, no reason to question the “transfer of the petitioner to

Gazole from Howrah”. It is, as if, the entire process has happened in the

usual course of business and need not be interfered with.

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23. A second and rather interesting issue raised is that the petitioner cannot

challenge this transfer, as transfer is not a matter of right. There is no

dispute on this proposition; the Supreme Court, in cases such as 1989 2

SCC 602, 2009 11 SCC 678, and 2022 12 SCC 1, has categorically held

that transfer is not a matter of right.

24. The moot question therefore arises, as contended by the petitioner, that

this process is not a transfer at all. This is a fresh posting. The tenor of the

respondent’s submissions is also similar in that the genesis of this transfer

or posting is not merely a shift from one place to another but an

appointment on the basis of a merit list and a counselling process. Had

there been no consideration on the basis of any merit list or counselling,

this could well have been considered as a case of transfer. This is not so.

25. On a factual basis, from the records it appears that there are two vacant

seats which were available and featured in the vacancy matrix provided by

the respondent at the Howrah General Hospital, in the Department of

Anesthesiology. It is also an admitted fact that at least one of the two posts

is still lying vacant. Thus, it is clear that there is no other person above the

petitioner in rank (considering merit list and counselling) who has opted

for Howrah Medical College or has been given posting at Howrah. Thus

there is no reason why the petitioner who had opted for Howrah and had

been ranked as per the merit list and counselling process should not have

been given the posting at Howrah.

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26. The only reason could have been that the petitioner was required as an

Anesthesiologist to immediately attend to the duties of Anesthesiology at

Gazole. If Gazole had such requirement, one could have considered

whether the petitioner could have been asked to continue at Gazole, which

place he had already joined, to further continue in service.

27. It is also not in dispute that the petitioner has a few more days left to

complete his tenure at Gazole. However, it is not a question of the tenure

only. It is also a question of principle as to the manner and mode of

posting the petitioner at Gazole is rather arbitrary, whimsical, and in

contravention of the established SOP. Interestingly, Memo No.

CMOH/MLD/Estb/649 dated March 20, 2025, merely states that funds

had been approved for renovation of the old building at Gazole and after

renovation various surgical procedures such as Orthopaedic and General

Surgery “which will occur in future” would require the presence of an

Anesthesiologist. On a query from Court, it was informed that not a single

surgery has occurred from the date of the joining of the petitioner at

Gazole till the date of last hearing of the petition, that is, March 19, 2026.

The petitioner is an Anesthesiologist who went to work and had opted for

Howrah, had the rank to be posted there, but has been unceremoniously

sent to Gazole, where for the past almost one year he has not had the

occasion to participate in a single surgery.

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28. Without getting into the controversy of administrative bias, malice in law,

or a retaliatory action as pleaded by the petitioner, though not argued in

such detail, the very process of the petitioner’s posting at Gazole is vitiated,

as it is against the very tenet of the SOP established by the respondent

themselves. It will also not be out of place to mention here that of the 778

candidates, 777 were allotted to their preferred place of posting and only

in the case of the petitioner there seems to be an alteration. This alteration

in the posting cannot be glossed over in any manner. Significantly, the

SOP has been followed while posting of all others except for the

petitioner, this is ex-facie discriminatory.

29. It may also be noted that in a similar matter a coordinate bench of this

Hon’ble Court in the case of Dr. Aniket Mahata (supra) had set aside the

posting of a candidate similarly situated, that is, within the merit list but not

getting the posting of his preferred hospital. This decision has been upheld

by a Division Bench of this Hon’ble Court by an order and judgment in

the case of MAT 1736 of 2025 (State of West Bengal & Ors. Vs. Dr.

Aniket Mahata & Ors.) dated November 6, 2025, which was also carried

before the Hon’ble Supreme Court of India but was not entertained, as

would appear from the order dated December 11, 2025.

30. The petitioner herein, even if not similarly situated as Dr. Aniket Mahata,

only to the extent that the petitioner is in the second year of residency and

Dr. Aniket Mahata was in the first year, the issue of the applicability of

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clauses 7a, 7b and 7c of the SOP is clear and unequivocal. These clauses

spell out the fact that while posting, whether a first year or a second year

student, will be entitled to a rank in terms of merit and counselling. If

merit-based criteria is not a qualifying parameter for engagement, then the

choice exercised by the concerned doctor would have to be construed as a

qualifying parameter. As in the case of Dr. Aniket Mahata (supra), the

petitioner qualifies on both counts, and there is no reason disclosed by the

State as to why his appointment at the institution of his choice in Howrah

could not be afforded to him, and why he has been posted at a place of the

State’s choice in Gazole.

31. The SOP has been formulated to ensure transparency, clarity, and to

maintain fairness and balance in the issue of posting/deployment of

doctors as senior residents. If the mandate of the SOP has been followed

in the case of 777 out of 778 doctors, there is absolutely no ground for the

State to say that the SOP does not apply to the petitioner or that the

petitioner is required elsewhere (Gazole) rather than at Howrah.

32. While exercising the jurisdiction of judicial review, the Court has to be

alive to the proposition as succinctly laid down by the Hon’ble Supreme

Court of India in Tata Cellular vs Union Of India reported in 1994 6 SCC

651. The Court is not to take into account the correctness of an

administrative action unless it is illegal or reeks of irrationality or

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procedural bias. The Court is not to examine or go into the validity of the

decision taken by the Government.

33. With this cautious approach, a plain reading of the SOP as formulated by

the State, to which it is bound, shows that the mechanism devised therein

is to ensure smooth, transparent and efficacious services of the doctors as

senior resident during their bond period in a manner which would be in

consonance with the basic principle of administrative law.

34. The SOP is clear and unequivocal. To negate any consideration of

administrative bias or malice in law, the SOP has devised a mechanism

which prescribes the method to proceed with posting. This method as

enunciated in clauses 7a, 7b and 7c collates merit as well as counselling to

achieve the principle of fairness, transparency and clarity. Interestingly, in

the case of every other candidate the SOP has been meticulously followed

except for this petitioner and another person.

35. The mechanism of the SOP has been devised with the ulterior aim to

guarantee the rights of all doctors who have applied by way of bond for

posting as senior residents. This SOP is merely the mechanism to uphold

the rights of the citizen under Article 12 of the Constitution of India. The

very purpose of the SOP is to eliminate any sort of arbitrariness, unfairness

or opaque action on behalf of the state authorities. The State is thus bound

to adhere to the standard fixed by it by way of this SOP. Any deviation,

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disruption or derailment from the process as specified in the SOP by the

State clearly warrants interference as it is a procedural impropriety

touching the parameter of illegality and irrationality and warrants judicial

interference. The decisions relied upon by the respondent are all in

respect of transfer of an employee relating to his service, to which the

transferee has no right. This is an accepted principle and cannot be

equated with the posting of a doctor in the present case as the same does

not qualify as a transfer.

36. The concerned clauses of the SOP dated February 16, 2023, 7a, 7b and 7c

are clear and unequivocal. If the merit‑based criteria is not a qualifying

parameter for engagement as argued by the respondent, since according to

the respondent it applies only to students of the first year, in that event the

choice/preference exercised by the petitioner would have to be the

qualifying parameter. It is not as if the petitioner was being transferred

from one place to another but, as clearly enshrined in clause 7a, he would

be appointed through further counselling based on merit list already

prepared. Thus, even if the respondents’ arguments are taken to be correct

that the merit‑based criteria is not a qualifying parameter, then there

remains no other parameter on the basis of which posting would be made,

other than the choice or preference of the concerned candidate.

37. In view of the aforestated, I am inclined to hold that the posting of the

petitioner at Gazole was unfounded and clearly in violation of the

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established rules and procedures under the SOP for the following

reasons:-

a. On a consideration of the SOP, the petitioner was within the

merit list to obtain a posting/deployment at Howrah.

b. The posting of the petitioner at Gazole is contrary to the SOP

and particularly clauses 6 and 7.

c. Though it is true that the petitioner had declared that he

would serve in any hospital in West Bengal, it has to be

construed that it means any hospital with a requirement.

Gazole is not an established hospital with any requirement of

an Anesthesiologist and did not feature in the vacancy matrix

floated to the candidates.

d. The continued vacancy of a post at the Howrah Medical

College Hospital reflects that there is no other person/doctor

above the rank of the petitioner in the merit list who sought an

appointment in Howrah. Thus the petitioner is well entitled to

have been posted/deployed at Howrah.

e. The deviation in so far as the petitioner is concerned out of

778 candidates is a clear indication of an arbitrary action which

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cannot be supported in any manner whatsoever. The

petitioner is entitled to be treated at par with all other doctors

in so far as their deployment/posting is concerned.

38. In view of the aforestated, I hold that the posting of the petitioner at

Gazole is bad in law and hereby set aside the Memo No.

HF/O/HS(MA)/725/SF-11/2025 dated May 26, 2025.

39. The respondents are directed to immediately allow the petitioner to join

the post of senior resident in the Department of Anesthesiology at Howrah

District Hospital in terms of the original allotment to him during the

counselling held on February 27, 2025.

40. The writ petition is accordingly allowed.

41. There shall, however, be no order as to costs.

42. Urgent photostat certified copy of this judgment, if applied for, shall be

granted to the parties as expeditiously as possible, upon compliance of all

formalities.

(Reetobroto Kumar Mitra, J.)