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2007 DIGILAW 826 (CAL)

Jagannath Mondal v. STATE OF WEST BENGAL

2007-11-16

JAYANTA KUMAR BISWAS

body2007
JUDGMENT: JAYANTA KUMAR BISWAS, J. (1) THE petitioner in this writ petition dated january 24th, 2005 is aggrieved by the decision of the Director, panchayats and Rural Development, West Bengal dated December 22nd, 2004 that he is not entitled to get any benefit as part-time homoeopathic medical officer working in the dispensary set up by Kashinagar Gram panchayat, South 24 Parganas. (2) THE Secretary, Department of Health and Family Welfare, government of West Bengal issued a memo dated March 27th, 1978 introducing the scheme for providing the Anchals, i.e. the Gram panchayats of the state with homeopathic dispensaries. Guidelines for execution of the scheme were issued by the joint secretary of that department by his memo dated September 17th, 1983. The scheme was to be operated jointly by the health and family welfare department and the department of panchayats and rural development. Prescribing the conditions for appointment of part-time homoeopathic medical officer and compounder, the assistant secretary of the department of health and family welfare issued a memo dated May 23rd, 1988. The conditions were prescribed in exercise of power conferred on the government by the provisions in sections 160 (3) and 212 of the West Bengal Panchayats act, 1973. (3) IN terms of the scheme each Gram Panchayat was to be provided with one homoeopathic dispensary with one part-time homoeopathic doctor and one part-time homceopathic compounder-cum-dresser. The Gram Panchayat intending to set up such a state aided homoeopathic dispensary was to select the site, name the doctor and the compounder with requisite qualification, and forward the proposal in the form of a resolution to the Panchayat Samity concerned. After examining the proposal, the Panchayat Samity was to recommend it to the Zilla parishad, and the Zilla Parishad, in turn, was to forward the proposal, after examining it in detail, to the department of health and family welfare of the Government. The dispensary was to become operative only after acceptance of the proposal was communicated to the Zilla parishad by the department of health and family welfare. (4) IN the present case, the petitioner has alleged as follows. By a letter dated November 25th, 1993 the Prodhan of Kashinagar Gram panchayat appointed him to work as medical officer in the homoeopathic dispensary set up by the Gram Panchayat. Accordingly, he joined the dispensary on December 1st, 1993. (4) IN the present case, the petitioner has alleged as follows. By a letter dated November 25th, 1993 the Prodhan of Kashinagar Gram panchayat appointed him to work as medical officer in the homoeopathic dispensary set up by the Gram Panchayat. Accordingly, he joined the dispensary on December 1st, 1993. The Gram Panchayat duly sent the proposal to the Panchayat Samity that adopted a resolution dated March 24th, 1994 approving the proposal and the petitioners appointment. The panchayat Samity under cover of its letter dated June 15th, 1995 forwarded the papers to the Zilla Parishad, and after examining the proposal and approving it, and the petitioners appointment, the Zilla parishad, by its letter dated November 30th, 1995 forwarded the papers to the department of health and family welfare. As will appear from the letter of the health and family welfare department dated March 18th, 2002 the remuneration payable for the period from April 1st, 2000 to march 31st, 2002 was released. However, no remuneration was paid. (5) WHEN the amount released by the department concerned was not disbursed, the petitioner moved this Court by filing a writ petition (No. 1752 of 2002). He prayed for an order directing the respondents therein to regularize his appointment and also to pay him remuneration. By an order dated June 15th, 2004 that writ petition was disposed of directing the director of panchayats and rural development to inquire into the matter. It was observed that if the remuneration released by the department of health and family welfare was to be released, then steps should be taken for disbursing it. It is in compliance with those directions of this Court that the director of panchayats and rural development gave the impugned decision. The decision of the director is simply without jurisdiction, because, in terms of the provisions of the scheme, guidelines, and the prescribed directions noted hereinbefore, he was not the authority to approve the proposal including the petitioners appointment. The secretary, department of health and family welfare was the competent authority for the purpose. (6) AS has been noted hereinbefore, the Zilla Parishad was to send all papers connected with the proposal to set up the dispensary to the department of health and family welfare, and the dispensary was to start functioning only after acceptance of the proposal was communicated to the Zilla Parishad by the department of health and family welfare. (6) AS has been noted hereinbefore, the Zilla Parishad was to send all papers connected with the proposal to set up the dispensary to the department of health and family welfare, and the dispensary was to start functioning only after acceptance of the proposal was communicated to the Zilla Parishad by the department of health and family welfare. Thus it is apparent that the director of panchayats and rural development was not to play any role whatsoever in connection with approval of the petitioners appointment as part-time homoeopathic medical officer selected by the Gram Panchayat for working in the homoeopathic dispensary it had decided to set up in terms of the provisions of the scheme. But then, in ignorance of the provisions of the scheme, guidelines, and the prescribed directions this Court referred the matter to the director of panchayats and rural development, when the matter was actually to be remitted to the secretary, department of health and family welfare. (7) BY filing a supplementary affidavit dated September 10th, 2007 the joint secretary of the health and family welfare department has sought to justify the decision of the director. It has been stated that the proposal was never forwarded by the Ziila Parishad to the department, and hence there was no question of considering the question of approving the petitioners selection by the Gram Panchayat. While counsel for the petitioner has submitted that it is not correct to say that the Zilla Parishad did not forward the papers to the health and family welfare department, counsel for the state has stuck to the statement made by the joint secretary in his supplementary affidavit. For reasons known to the Zilla Parishad it has not appeared to contest the case. I have been informed by counsel for the petitioner that the Zilla Parishad affirmed an opposition, a copy whereof was served. But no such opposition has been filed. Counsel for the petitioner has said that in the opposition the Zilla Parishad did not say that the letter dated november 30th, 1995 (at page 22 of the writ petition) was not written by it. By that letter the Zilla Parishad apparently forwarded the proposal to the health and family welfare department. But then, in my view there is no need to make the matter complicated by raising the issue whether the letter dated November 30th, 1995 was actually written by the Zilla parishad. By that letter the Zilla Parishad apparently forwarded the proposal to the health and family welfare department. But then, in my view there is no need to make the matter complicated by raising the issue whether the letter dated November 30th, 1995 was actually written by the Zilla parishad. (8) ON these facts, I have no doubt in my mind that the decision of the director is not a decision given by a lawful authority. It cannot be sustained simply because the joint secretary of the competent department seeks to justify it. In my opinion, purpose of justice will be served if the matter is remitted to the secretary of the health and family welfare department directing him to make a detailed inquiry and give a reasoned decision regarding the petitioners claims that he became entitled to get approval as part-time homoeopathic medical officer for the homoeopathic dispensary set up by the Gram Panchayat. (9) FOR these reasons, I set aside the impugned decision of the director dated December 22nd, 2004 and allow the writ petition to this extent. I order that the Secretary, Health and Family Welfare Department, government of West Bengal shall make a detailed inquiry into the petitioners claims, indicating which he shall submit an appropriate representation with supporting documents to the secretary. On receipt of the representation the secretary shall collect all necessary papers from the Gram Panchayat, the Panchayat Samity, and the Zilla Parishad concerned. Those authorities shall submit all papers and documents in terms of directions of the secretary. After collecting all papers and documents, and giving opportunity of inspection thereof to the petitioner, and after giving opportunity of hearing to the petitioner and the authorities, if necessary, the secretary shall give a reasoned decision in the matter within ten weeks from the date of receipt of the representation. If the secretary finds that the petitioner started working in the dispensary set up by the Gram Panchayat, then a lenient view shall be taken for approving the proposal and the petitioners appointment with effect from the date he started working as part-time homoeopathic medical officer in the dispensary, and in that case an appropriate decision, keeping equity in view, shall be given regarding payment of remuneration to him as an approved part-time homoeopathic medical officer. If any amount is to be paid to the petitioner, steps for payment shall be taken as expeditiously as possible. There shall be no order for costs. Petition allowed.