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2001 DIGILAW 696 (CAL)

Swaraj Haldar v. State of West Bengal

2001-10-19

Alok Kumar Basu, Altamas Kabir

body2001
Judgment Altamas Kabir, J. This writ application is directed against the judgment passed by the West Bengal Administrative Tribunal on 20th July, 2001, dismissing the petitioner's Original Application No. 4876 of 1999 upon holding that there was no merit therein. 2. While posted as Assistant Professor, F. & S. M. Department, Medical College, Calcutta, the petitioner was appointed to the post Assistant Director of Medical Education on 8th January, 1996. In or about the month of June, 1998, in order to meet the requirement of the Medical Council of India for maintaining adequate number of Senior and Junior Teaching staff, a proposal was made by the Department of Health and Family Welfare, Government of West Bengal, to provide for ad hoc elevation to eligible Medical Teachers to fill up the 221 posts of Lecturers to Professors lying vacant in 38 disciplines, to be subsequently regularised by the Public Service Commission, West Bengal. The matter appears to have been placed before the Minister-in-Charge who gave his approval to the proposal. After the Finance Department gave its approval, the matter was placed before the cabinet with the approval of the Hon'ble Chief Minister on 4th June, 1998, and the proposal regarding ad hoc elevation was duly noted by the Cabinet. 3. Pursuant to such proposal for ad hoc academic elevation, orders of transfer and posting of as many as 275 doctors, including the petitioner, were issued. 4. Pursuant thereto, the petitioner was transferred and posted as Assistant Professor, Department of F. & S. M., Calcutta Medical College, and was given academic elevation to the post of Reader. According to the petitioner, the entire proposal relating to ad hoc elevation and posting on transfer was placed before the Cabinet for its approval and the same was duly approved along with the notice against each candidate. According to the petitioner, in his case it was stipulated that after his transfer, he was to be brought back to Writers' Buildings to his original post of Assistant Director of Medical Education. 5. However, while the conditions relating to the transfer and posting of the other transferees were duly given effect to, in the petitioner's case the decision to bring him back as Assistant Director of Medical Education was deliberately not acted upon and instead application for filling up the said post, showing the same to be vacant, were invited by a Memo dated 27th January, 1999. In keeping with the said Memo the petitioner applied for the said post, but without considering the petitioner's application, a fresh' Memo was issued on 25th March, 1999, for the self-same purpose, wherein the last date for submission of application was 30th April, 1999. The said date was subsequently extended on 5th May, 1999. 6. The petitioner again applied on the basis of the second Memo but apprehending foul play moved the West Bengal Administrative Tribunal by way of Original Application No. 4876 of 1999. The matter was admitted for hearing by the learned Tribunal on 9th July, 1999, but as the prayer for interim order was refused, the petitioner filed an application under Article 226 of the Constitution, being WPST No. 260 of 1999. The matter was taken up on 14th July, 1999, when an interim order was passed restraining the respondents from making any appointment on the basis of the selection process. It was also directed that if any appointment order had already been passed, no further effect was to be given to such order of appointment. 7. The said interim order was subsequently modified on 21st March, 2000, with liberty to the petitioner to file an application for amendment before the learned Tribunal. It was also stipulated that in the event any appointment was made pursuant to the second selection, such appointment would abide by the result of the application before the learned Tribunal and the appointee would not claim any equity. A further direction was given to the State to clearly mention in the appointment letter that such appointment would be subject to the result of the application pending before the learned Tribunal. As the matter was being delayed, an application for contempt was filed on or about 17th April, 2000, and upon receipt of intimation thereof, the State respondents appointed one Dr. Santanu Banerjee, Lecturer (Ad hoc) to the post of Assistant Director, Medical Education on 20th April, 2000. 8. Ultimately, by its order dated 20th July, 2001, the learned Tribunal dismissed the petitioner's application, upon holding that there was no illegality and or irregularity in the selection process since the petitioner had been considered in the second stage of the selection process along with other eligible candidates. 8. Ultimately, by its order dated 20th July, 2001, the learned Tribunal dismissed the petitioner's application, upon holding that there was no illegality and or irregularity in the selection process since the petitioner had been considered in the second stage of the selection process along with other eligible candidates. Unfortunately, on merit, the petitioner was placed in the last position in the Select List and on being unsuccessful in the selection process, he could not now turn round and challenge the said selection process on the ground that it was bad, mala fide and arbitrary. 9. Appearing in support of the writ petition, Mr. Surajit Samanta contended that since the Cabinet had taken a decision that the petitioner should be brought back to the Writers' Buildings as Assistant Director, Medical Education, and since the conditions in relation to all the other transferees had been given effect to, the respondents acted in a highly arbitrary and discriminatory manner in not giving effect to the Cabinet decision as far as the petitioner was concerned. 10. Mr. Samanta urged that the writ petitioner was not challenging the selection process but the very initiation thereof. According to Mr. Samanta, even if the first stage of the selection process was held to be regular, the petitioner should have been appointed to the post of Assistant Director, Medical Education, at that stage, since his candidature was allegedly rejected at the said stage on the ground that he was over-qualified for the said post. It was contended that since the said ground was not considered to be a bar for being considered at the second stage of selection, the rejection of the petitioner's candidature at the first stage was merely a ploy to keep him from being appointed to the said post. 11. Mr. Samanta also contended that since a person was required to be a Lecturer for being considered for appointment to the post in question, the appointment of Dr. Santanu Banerjee, who held the substantial post of Demonstrator at the relevant time and was an ad hoc Lecturer, was not only illegal but clearly indicated the mala fide intention of the respondents to deprive the petitioner of the decision of the Cabinet to retain him in the said post. 12. Mr. Santanu Banerjee, who held the substantial post of Demonstrator at the relevant time and was an ad hoc Lecturer, was not only illegal but clearly indicated the mala fide intention of the respondents to deprive the petitioner of the decision of the Cabinet to retain him in the said post. 12. Mr. Samanta urged that inspite of the said facts being placed at the time of hearing of the petitioner's application the learned Tribunal had erroneously dismissed the said application upon holding that the same had no merit. 13. Appearing for the State and its authorities Mr. Debashis Kar Gupta denied Mr. Samanta's submission that the proposal to retain the petitioner as the Assistant Director, Medical Education, had either been placed before the Cabinet or approved by it. Mr. Kar Gupta submitted that in order to meet the requirement of the Medical Council of India a proposal was mooted by the Department of Health and Family Welfare to grant ad hoc elevation without consulting the Public Service Commission, West Bengal, and the same was required to be brought to the notice of the Cabinet. Accordingly, with the approval of the Minister-in-Charge of the Department and the Hon'ble Chief-Minister, the proposal was brought before the Cabinet as a 'Mention Case' and was duly noted by it on 4th June, 1998. Mr. Kar Gupta produced a copy of the 'Decision in Cabinet' and the relevant file in support of his submission and urged that apart from the said proposal nothing else relating to the consequent transfer and postings had even been placed before the Cabinet for its decision. 14. On the question of publication of the first and second Memos inviting applications for filling up the post of Assistant Director, Medical Education, Mr. Kar Gupta submitted that inasmuch as, sufficient candidates were not available upon publication of the first Memo it was felt that a second Memo should issue to obtain the best candidates available to fill up the said post. Subsequently, on receipt of a sizeable number of applications and considering the merits 'of the respective candidates a Select List was prepared and the petitioner was at the bottom of the list. 15. As far as the appointment of Dr. Santanu Banerjee was concerned, Mr. Subsequently, on receipt of a sizeable number of applications and considering the merits 'of the respective candidates a Select List was prepared and the petitioner was at the bottom of the list. 15. As far as the appointment of Dr. Santanu Banerjee was concerned, Mr. Kar Gupta submitted that his candidature was considered as he was functioning as a Lecturer though on an ad hoc basis and he was selected for appointment as he had topped the Select List on merit. 16. Mr. Kar Gupta urged that the entire process of selection was completely fair and transparent and no interference was warranted with the order of the learned Tribunal. 17. On a careful consideration of the file produced by Mr. Kar Gupta and the other relevant documents, it is quite clear that only the proposal for grant of ad hoc elevation, subject to regularisation by the West Bengal Public Service Commission, was placed before the Cabinet for its information and not the proposed list of transfer and posting, as contended by Mr. Samanta. We are also satisfied that the said proposed list of transfer and posting was initiated by the petitioner while he was functioning as Assistant Director, Medical Education, and the notings against his name in the said list did not confer any right on him to be re-appointed in the said post after his transfer to the Calcutta Medical College as Assistant Professor in the Department of F. & S. M. 18. There is also some justification in issuance of the second Memo issued on 25th March, 1999, since the petitioner appears to have been the only candidate available pursuant to publication of the first Memo. While we do not appreciate the ground on which the petitioner's candidature was not considered pursuant to the first Memo, the petitioner did not choose to question the same at the relevant point of time and responded to the second Memo of course, Mr. While we do not appreciate the ground on which the petitioner's candidature was not considered pursuant to the first Memo, the petitioner did not choose to question the same at the relevant point of time and responded to the second Memo of course, Mr. Samanta attempted to counter the same by referring to and relying on the decision of the Hon'ble Supreme Court in the case of Basheshar Nath vs. Commissioner of Income Tax, Delhi and Rajasthan, A.I.R. 1959 S.C. page 149, wherein it had been observed that it was not open to a citizen to waive his fundamental rights conferred by Part III of the Constitution, and contending that the petitioner had a right to be considered for appointment on the basis of the first Memo. 19. In our view, the said decision does not help the petitioner's case, as no fundamental right of the petitioner was infringed by the issuance of the second Memo which the respondents were always entitled to issue in order to secure the best candidate for the post. 20. The last branch or Mr. Samanta's submission has some force since Dr. Santanu Banerjee was not initially eligible to be considered for the post of Assistant Director, Medical Education, as he was not a Lecturer at the relevant point of time, but was merely functioning as Lecturer on an ad hoc basis while holding the substantive post of Demonstrator. He may have become a Lecturer at a subsequent stage, but the same could not have been given retrospective effect to make him eligible at the initial stage. 21. On the aforesaid score, we would have had no hesitation to set aside Dr. Santanu Banerjee's appointment as Assistant Director, Medical Education, but even if we did so, no benefit would accrue to the petitioner who was placed at the last position of the Select List. We do not, therefore, intend to unsettle the position and the writ application is accordingly dismissed. 22. There will, however, be no order as to costs. 23. If an urgent xerox certified copy of this judgment is applied for, the same is to be supplied expeditiously, subject to compliance with all the required formalities. Alok Kumar Basu, J.: I agree. Writ application dismissed.