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2011 DIGILAW 1502 (CAL)

Debabrata Kundu v. The State of West Bengal

2011-12-12

ASHIM KUMAR BANERJEE, SHUKLA KABIR SINHA

body2011
Judgment : ASHIM KUMAR BANERJEE.J. FACTUAL SCENARIO Petitioners were all having qualifications of BHMS (MD.) being eligible for the post of Lecturer in Homoeopathic Medical Colleges in West Bengal. They all applied for the post of Demonstrator as per advertisement dated July 6, 2002 issued by the Department of Health and Family Welfare. They also deposited requisite fees for the said purpose. Up till 2008 the Public Service Commission (hereinafter referred to as PSC) who published the advertisement and responsible for holding such selection process, did not communicate to the petitioners about the fate of their applications. Vide communication dated April 17, 2008 PSC refunded their fees and thus formally cancelled the process of recruitment in the post of Demonstrator. In the mean time the post of Demonstrator was changed to Lecturer. The petitioner claimed that they should have been considered for the post of Lecturer as per the original advertisement. The authority however declined to act upon such request. The authority filled up the post of the Lecturer by two batches, one by appointing Medical Officers from Health Service on ad hoc basis and thereafter regularizing them and the other batch of freshers through a subsequent advertisement of 2008 and the petitioners were debarred from participating in such process being age barred by that time. They made grievance before the Tribunal unsuccessfully and then before us. LAW RELEVANT On August 1, 2002 the West Bengal State Homoeopathic Health Service Act, 2002 came into force. By the said Act two separate services were formed, West Bengal Homoeopathic Health Service and West Bengal Homoeopathic Education Service. By a further amendment published in the Gazette on September 5, 2007 the said Act of 2002 was amended by amending Section 21 of the said Act making a transitory provision for appointment of teachers. Section 21 as per the original Act and the amendment are reproduced below :- Original section 21. By a further amendment published in the Gazette on September 5, 2007 the said Act of 2002 was amended by amending Section 21 of the said Act making a transitory provision for appointment of teachers. Section 21 as per the original Act and the amendment are reproduced below :- Original section 21. “Notwithstanding anything contained elsewhere in this Act, if the State Government is of opinion that it is necessary so to do in the public interest, it may, by order, elevate or promote any person holding a teaching post in the West Bengal Homoeopathic Education Service to a higher rank or may make recruitment to any teaching post in the West Bengal Homoeopathic Education Service in such manner, and subject to such terms and conditions, as may be prescribed: Provided that no such order shall be made after the expiry of a period of three years from the date of coming into force of this Act.” Amended provision “Notwithstanding anything contained elsewhere in this Act, if the State Government is of opinion that it is necessary so to do in the public interest, it may, by order, elevate or promote any person holding a teaching post in the West Bengal Homoeopathic Education Service to a higher rank or may make recruitment to any teaching post in the West Bengal Homoeopathic Education Service in such manner and subject to such terms and conditions as contained in the Homoeopathy (Minimum Standards of Education) Regulations, 1983, of the Central Council of Homoeopathy: Provided that no such order shall be made after the expiry of a period of six years from the date of coming into force of this Act.” By a subsequent notification dated February 10, 2003 the post of Demonstrator was abolished and was substituted as Lecturer in the said Act of 2002. GRIEVANCE The petitioners now want that they should be considered for appointment in the post of Lecturer in terms of the earlier advertisement published in 2002 that was not cancelled. Their prayer was declined by the State on two counts:- (i) The post of Lecturer had been filled up from amongst the Medical Officers working under West Bengal Homoeopathic Health Service by giving ad hoc appointments in 2004 and thereafter regularized through Memo dated June 27, 2008, presumably exercising the power under amended Section 21 of the said Act of 2002. (ii) The subsequent advertisement was published on June 28, 2008 for filling up the rest of the post of Lecturer. Those were filled up through a regular recruitment process by another fresh batch of candidates. The petitioners did not appear in the said examination process and as such they could not be considered. Pertinent to note, the petitioners by that time crossed the age eligibility bar. LITIGATION AT THE TRIBUNAL The petitioners approached the Tribunal by filing O.A. No.5 of 2009 principally challenging the advertisement published in the newspaper for holding a fresh selection process as well as regularization of the medical officers in the post of Lecturer. The petitioners’ principal contention before the Tribunal as appearing from the judgment and order impugned, was as follows : (i) Since the petitioner challenged an illegality they had locus standi to maintain the same. (ii) As per the notification of the Government published in 2002, as also in 2007 West Bengal Homoeopathic Health Service was segregated from Homoeopathic Education Service and the persons working in Health Service could not be appointed in Education Service. (iii) The petitioners being the aspirants for the post of Lecturer were ready and willing to apply for the same pursuant to an earlier advertisement that was cancelled illegally. (iv) Advertisement dated June 28, 2008 was prima facie illegal and not in accordance with the Rules of 1983 promulgated by the Central Government for Homoeopathic Health Service and Homoeopathic Education Service. (v) As per advertisement of 2008 there was no scope for age relaxation although the Rules would inter alia provide so. The State on the other hand contended before the Tribunal that the petitioner had no right or business to call in question the action taken by the Government. To justify the conduct the learned counsel contended that the affiliation of the Private Homoeopathic Medical Colleges were at stake compelling the Government to take over the management in the interest of the public and the said Act of 2002 as amended in 2007 was promulgated. The ad hoc appointments were done as per 2003 Circular, to meet the exigency, those were regularized in 2008. The private respondents supported the State. The Tribunal considered the issue and ultimately observed that the Rules did provide age relaxation. However it was not mandatory for the appointing authority to grant such relaxation. The ad hoc appointments were done as per 2003 Circular, to meet the exigency, those were regularized in 2008. The private respondents supported the State. The Tribunal considered the issue and ultimately observed that the Rules did provide age relaxation. However it was not mandatory for the appointing authority to grant such relaxation. However, they should exercise such discretion judiciously keeping public interest in mind. The Tribunal felt that the 2008 advertisement should have mentioned clause for age relaxation. However, since selection was complete such process could not be annulled and the authority must provide such a provision in a next advertisement. To that extent, the application was allowed. THIS PETITION Being aggrieved, the petitioners approached us by filing the instant application that was heard by us on the above mentioned dates. CONTENTIONS BEFORE US Mr. Aninda Lahiri, learned counsel appearing for the petitioners contended as follows :- (i) Section 11 and 12 of the said Act of 2002, if read together, would clearly debar consideration of any Health Service in-house candidate for the post of Lecturer being a part of Education Service. Hence, the regularization of medical officers were illegal. (ii) As per the Rules the age could be relaxable for five years after thirty-five years in case of exceptional candidates. The advertisement of 2008 did not specify such clause. Hence, the petitioners were debarred from participating in such process being age barred. (iii) Assuming the State was entitled to relax the age in case of in-house candidates from Health Service such relaxation could be given upto the age of forty years whereas the average age of the in-house candidates was fifty years. (iv) The amendment so published in Official Gazette on September 5, 2007 could not have any retrospective effect to validate the engagement of the in-house candidates irrespective of their age as Section 11 and 12 would stand in the way. Section 14 would also operate as a clear bar. (v) As per the 2002 advertisement the petitioners were all eligible for the post of Demonstrator. They applied for the same. Before the process was cancelled the post of Demonstrator was substituted by the word “lecturer”. Hence, the petitioners should have been considered for the said post. (vi) The law did not permit the State to regularize the ad hoc appointees that too, de hors the Rules. They applied for the same. Before the process was cancelled the post of Demonstrator was substituted by the word “lecturer”. Hence, the petitioners should have been considered for the said post. (vi) The law did not permit the State to regularize the ad hoc appointees that too, de hors the Rules. (vii) Article 14 and 16 of the Constitution would mandate opportunity to be given to all eligible candidates to compete for the said post. The petitioners were debarred from doing so as posts were filled up from the in-house candidates without any regular recruitment process. To support his contentions, Mr. Lahiri cited the following decisions :- (i) All India Reporter 1965 Supreme Court Page-491 (The University of Mysore –VS-C.D. Govinda Rao & Anr.) (ii) 1990 Volume-III Supreme Court Cases Page-655 (District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram & Anr.-VS-Mr. Tripura Sundari Devi) (iii) 2006 Supreme Court Cases Volume-IV Page-I (Secretary, State of Karnataka & Ors. –VS- Uma Devi-III & Ors.) Mr. Debangsu Basak, learned Senior State Government Advocate, while opposing the application contended as follows :- (i) The age relaxation was within the discretion of the State. By not making any mention, the advertisement could not be held to be bad as it was merely an enabling provision and not mandatory. (ii) Section 21 empowered the State to cope up with the emergent situation. Hence, ad hoc appointments were made. The earlier advertisement for the post of Demonstrator stood cancelled on the introduction of the said Act of 2002. The State informed PSC contemporaneously. Hence, it was their duty to formally cancel the selection process. The State could not be blamed. (iii) Subsequent Memo of regularization was nothing but a follow up action in terms of Section 21 as amended. In absence of challenge to the said amendment the petitioners’ contention could not be upheld. Mr. Pratik Dhar, learned counsel appearing for the batch of in-house candidates while opposing the application contended that Section 11 would bar the regular appointment and not an ad hoc appointment that was given exercising power under Section 21. He further contended that eighty-five candidates applied for the post and the Selection Committee ultimately gave appointment to twenty-nine in-house candidates on ad hoc basis. The ad hoc appointees were in regular pay roll of the Government. It was nothing but a change of cadre. He further contended that eighty-five candidates applied for the post and the Selection Committee ultimately gave appointment to twenty-nine in-house candidates on ad hoc basis. The ad hoc appointees were in regular pay roll of the Government. It was nothing but a change of cadre. Hence, the analogy in the case of Umadevi (III) (Supra), would not be applicable. On the applicability of Rules Mr. Dhar contended that the 2009 Rules would have retrospective effect. He however supported the prayer of the petitioners on the age relaxation. He contended that as per 2009 Rules relaxation was permissible and this Court, if found suitable, should grant such liberty to the applicants. Mr. Dhar relied on the Apex Court decision in the case of Union of India & Another –VS- G.M. Kokil & Others reported in 1984 (Supplementary) Supreme Court Cases Page-196) On behalf of the fresh appointees Mr. Dwiptendra Narayan Roy, learned counsel drew our attention to page 167 and 200 of the petition and contended that the appointments were regularized strictly in terms of the Rules. He supported the judgment and order impugned. PRECEDENTS AS CITED (i) The University of Mysore & Ors. –VS- C.D. Govinda Rao & Anr. (Supra) Mr. Lahiri cited this decision to support his locus standi. He relied on paragraph 7 wherein the Apex Court quoted Halsbury, Laws of England and observed, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise or liberty is called upon to show by what right he holds the said office. He must satisfy the Court inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance of law or not. (ii) Union of India & Another –VS- G.M. Kokil & Others (Supra) Paragraph 11 of this decision was relied upon by Mr. Dhar to support his contention on the applicability of Section 21, as amended. The Apex Court observed in the subject paragraph, the non-obstanti clause must mean notwithstanding anything contained in that Act. (ii) Union of India & Another –VS- G.M. Kokil & Others (Supra) Paragraph 11 of this decision was relied upon by Mr. Dhar to support his contention on the applicability of Section 21, as amended. The Apex Court observed in the subject paragraph, the non-obstanti clause must mean notwithstanding anything contained in that Act. The Apex Court further observed, “just as because of the non-obstanti clause the Act is applicable even to employees in the factory who might not be “workers” under section 2(1), the same non-obstanti clause will keep away the applicability of exemption provisions qua all those working in the factory.” The Apex Court further observed, “a non-obstanti clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.” (iii) District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram & Anr.-VS- Mr. Tripura Sundari Devi (Supra) Mr. Lahiri relied on paragraph 6 that being relevant herein is quoted below : “It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact.” Mr. Lahiri relied on the above passage to support his contention, had there been age relaxation clause published in 2008 advertisement they could have applied for the same. This aspect was ignored by the Tribunal. (iv) Secretary, State of Karnataka & Ors. –VS- Uma Devi-III & Ors.(Supra) Mr. Lahiri relied on this decision to support his contention as against the regularization of the ad hoc appointments dehors the recruitment rules. This aspect was ignored by the Tribunal. (iv) Secretary, State of Karnataka & Ors. –VS- Uma Devi-III & Ors.(Supra) Mr. Lahiri relied on this decision to support his contention as against the regularization of the ad hoc appointments dehors the recruitment rules. PRINCIPAL ISSUES AS EMERGED (i) What would be the effect of 2002 advertisement even after the said Act of 2002 coming into force? (ii) What would be the fate of ad hoc appointees and their subsequent regularization? (iii) Fresh batch of appointees as per 2008 advertisement – their fate (iv) What relief, if any, would be appropriate for the petitioners? OUR VIEW FIRST ISSUE 2002 advertisement was published for the post of Demonstrator. Once the post of Demonstrator was abolished the said advertisement was rendered nugatory. It is true that the word “lecturer” substituted the word “Demonstrator”. The State could have continued with such recruitment process by issuing corrigendum for the post. The PSC did not do so. In course of hearing Mr. Basak handed over a copy of the letter dated August 4, 2003 that is kept on record. The said letter would provide that the PSC was duly intimated that in view of abolition of eighteen posts of Demonstrator there was no need for recruitment in the said post. The State through the Principal Secretary, Health Department categorically requested the PSC to cancel such advertisement. The PSC however did not act upon the same. From a xerox copy of the Status Report issued by the PSC in 2006 as handed over by Mr. Mitra appearing for the PSC would depict that they were contemplating cancellation and refund of application fees submitted by the applicants. However no step was taken on that score. When a representation was made by a group of post graduate trainees in 2005, the Health Department disposed of the said representation in 2007 by informing that twenty nine in service candidates were appointed in different disciplines/teaching post of four State-run Homoeopathic College and Hospital on purely ad hoc basis under compelling circumstances. In the said letter it was also informed that PSC was asked to cancel the recruitment process in the post of Demonstrator in view of abolition of the said post. Ultimately, the PSC refunded the application fees in 2008 as would appear from the petition. In the said letter it was also informed that PSC was asked to cancel the recruitment process in the post of Demonstrator in view of abolition of the said post. Ultimately, the PSC refunded the application fees in 2008 as would appear from the petition. It is unfortunate that the State as well as the PSC acted in most irresponsible manner in this regard and kept the applicants in the dark for six years keeping them under misconception that they would be considered for the post of Demonstrator or the post of Lecturer as per their application made in 2002. The PSC must compensate each of the applicants being the petitioner no.1 and 2 above named by paying token compensation of Rs.5000/- each to be recovered from the erring official after fixing up the responsibility. SECOND ISSUE To decide the second issue we have to carefully consider the relevant provisions of the said Act of 2002 and the subsequent amendment thereto. Section 11 would inter alia provide that a person working as Medical Officer prior to the said Act coming into force would be included in Health Service and shall not be allowed to opt for Education Service. Section 12 would denote that a teaching post in a Medical College would have the option either to join Education Service or Health Service and upon such option being exercised they would be deemed to have been appointed in such service. However, medical officers temporarily engaged in such teaching post would not be able to exercise such option. If someone (permanent teacher) does not exercise any option he would remain in Education Service. Section 14 inter alia provides for recruitment procedure in Health Service as well as Education Service. Recruitment in Education Service would be done by PSC. Similarly basic grade post in Health Service would also be filled up by PSC. If we take these three provisions together we would come to the conclusion, on the said Act of 2002 coming into force there would be two different service, Health Service and Education Service. The permanent teachers would remain with the Education Service provided they do not opt for Health Service. The Medical Officers or the temporary teachers appointed from amongst the Medical Officers would remain with the Health Service and would not be entitled to change over to Education Service. The permanent teachers would remain with the Education Service provided they do not opt for Health Service. The Medical Officers or the temporary teachers appointed from amongst the Medical Officers would remain with the Health Service and would not be entitled to change over to Education Service. Subsequent appointments in both the categories would be through PSC only. Section 21 would denote that the general provisions as above would not debar the State to cope up with an emergent situation in the public interest to order, elevate or promote any person holding a teaching post to a higher rank or make recruitment to any teaching post in such a manner and on such terms and conditions as may be prescribed. However such emergent power was restricted to three years from the date of the said Act coming into force. Hence, we find that Section 11, 12 and 14 read together would suggest an ordinary mode of recruitment and placement whereas Section 21 was an enabling provision for the State to cope up with an emergent situation within three years from the date of the said Act coming into force for either, recruitment of a teacher directly or promoting someone from the teaching post to a higher post. Section 21 was subsequently amended. If we look to the amended provision we find that the unfettered provision of Section 21 was restricted to the criteria to be followed by the State while exercising such provision, as per Homoeopathic (Minimum Standard of Education) Regulation, 1983 prescribed by the Central Council of Homoeopathy. However, the period was enhanced from three years to six years. Thus, we find, the scope of original Section 21 was restricted by the amendment by bringing it within the ambit of the said regulations of 1983, however extending the period from three years to six years. The objects and reasons as relied upon by Mr. Basak would show that the State needed such power in view of the disastrous situation faced by various Homoeopathic Medical Colleges subsequently taken over by the State for the fear of deaffiliation. We are therefore, of the view, in view of Section 21 the operation of Section 11, 12 and 14 would remain suspended to the extent it would operate contrary to such emergent provision. We are therefore, of the view, in view of Section 21 the operation of Section 11, 12 and 14 would remain suspended to the extent it would operate contrary to such emergent provision. Hence, we find that the State was entitled to cope up with such emergent situation and the notification by which those twenty-nine Medical Officers working under the State were appointed ad hoc teachers, could not be faulted. If we look to the notification dated January 13, 2004 and August 5, 2004 appearing at pages 171-178 of the petition we would find that the State appointed twenty-eight Medical Officers as teachers on ad hoc basis. The State however assured in the said notification that such appointments would be regularized after finalizing of the recruitment rules which were being finalized as per the provisions of Section 21. The State was however cautious and as such observed, “in case reversion to their parent post, the ad hoc service would be counted towards pensionary benefit, if there is no breaking service or other non-qualifying service and towards fixing inter se seniority in the West Bengal Homoeopathic Health Service.” On a combined reading of the said two circulars we would find that the State considered the Medical Officers working under the State for the post of teachers and ultimately twenty-eight candidates were appointed in the said process. We are told, the rest one was subsequently appointed, thus making the total of twenty-nine. We are of the view, the State did not commit any illegality appointing them in the teaching post on ad-hoc basis applying the power under Section 21 thereof. The question would thus remain, whether the Section 21 would also give them power to regularize those ad hoc appointees in a regular post. Here we join issue. Once a regular public post is filled up the mandate of Section 14 and 16 could not be avoided. Moreover, the amended provision would clearly denote that the Standard Regulation must be followed that would prescribe the age and the qualification. We are not aware as to whether the ad hoc appointees had the requisite qualification or not. However it was contended before us that they were over-aged and debarred from being appointed in the teaching post. Moreover, the amended provision would clearly denote that the Standard Regulation must be followed that would prescribe the age and the qualification. We are not aware as to whether the ad hoc appointees had the requisite qualification or not. However it was contended before us that they were over-aged and debarred from being appointed in the teaching post. Once they were regularized in the Education Service on permanent basis that would be a fresh recruitment in such post as change of cadre was not possible in terms of Section 11, 12 and 14, read together. The non-obstanti clause in Section 21 helped the State to cope up with an emergent situation that would not permit the State to act contrary to the mandate of the Constitution that would clearly violate and infringe the eligible candidates’ right to be considered in a permanent Government post. That was deprecated by the Apex Court in case of Uma Devi-III (Supra). It is true that the State in their notification assured the ad hoc appointees that they would be regularized. Such assurance was de hors the provision of law. The appointees may sue the State for such illegal assurance if they are so entitled to in law. However, it would not give them any right to enforce such assurance, which had no legal support. It might be contended that petitioners being over-aged would not be entitled to question such appointments. We are unable to accept such contention. A public post was being held by some person without any authority in law. Such illegality, as soon as brought to the notice of the Court, must be removed by using the power under quo warranto. Significant to note, definite assertion of the petitioners that the ad hoc appointees had an average age of fifty years was not disputed either by the State or by the said appointees. They based their submission on change of cadre that had no legal support. The State was entitled to put their house in order within six years by applying emergent provisions. They could have gone for regular recruitment applying such provision but subject to the observance of Regulation of 1983. Be that as it may, such power expired by efflux of time. The State would have to fill up the teaching post only through the PSC by applying the usual provisions of Section 14. They could have gone for regular recruitment applying such provision but subject to the observance of Regulation of 1983. Be that as it may, such power expired by efflux of time. The State would have to fill up the teaching post only through the PSC by applying the usual provisions of Section 14. On perusal of the bunch of documents handed over in Court it appears that the State vide letter dated April 25, 2005 appearing at page 39-40 of the compilation requested the PSC to allow change of cadre of those twenty nine Medical Officers to the post of Lecturer and their regularization in the said post. The State also sent a reminder on October 26, 2005 appearing at page 41 thereof. The PSC vide communication dated September 20, 2006 appearing at page 42 thereof, allowed such chan ge of cadre. Accordingly, they were regularized in the said post. In our view, the appointment of twenty nine respondents on ad hoc basis was just and proper. However their regularisation did not have support of law. We uphold their appointment on had hoc basis and set aside the order of regularisation issued by the State with the concurrence of Public Service Commission. We also find that the Homoeopathic Educational Service (Cadre and Recruitment) Rules, 2004) came into force through notification dated September 6, 2006 wherein the appointment in teaching post must be made through PSC, West Bengal. We however observe, the State may continue with those ad hoc appointees till a regular recruitment process through PSC does not fill up the said post. On such post being filled up on regular basis, the ad hoc appointees would go back to their parent post. They would however be entitled to continuity of service in their original cadre. THIRD ISSUE As per the provisions of Section 21 the State was also entitled to appoint teachers on regular basis. Hence, the advertisement published on June 28, 2008 does not offend any of the provisions of the said Act of 2002 or the Rules framed thereunder. It would have been better, the State would provide appropriate relaxation clause. The Tribunal already directed them to mention such clause in subsequent advertisement on that score. We do not wish to annul the appointment of the fresh batch being the other set of private respondents represented by Mr. Roy. It would have been better, the State would provide appropriate relaxation clause. The Tribunal already directed them to mention such clause in subsequent advertisement on that score. We do not wish to annul the appointment of the fresh batch being the other set of private respondents represented by Mr. Roy. They were considered in a regular recruitment process and were duly appointed through such process. It was not the case of the petitioners that they did not have the requisite qualification or experience or the age eligibility. Hence, we decline to interfere on that score. The third issue is accordingly held against the petitioners. FOURTH ISSUE The petitioners have crossed their age in view of the pendency of the 2002 advertisement and the protracted litigations. It is for the State Legislature to consider their fate in a peculiar circumstance as to whether they could be given appropriate age relaxation even beyond forty years. The court of law, however, is not entitled to give any direction on that score. We only observe that the Government should look into the aspect dispassionately. In case the petitioner gets appropriate relaxation of age and if they qualify for the post they should be considered in the next recruitment process for the existing vacancies including those twenty nine vacancies that would be arising in view of the foregoing judgment and order. Fourth issue is disposed of accordingly. RESULT The writ petition is thus disposed of accordingly without any order as to costs.