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2012 DIGILAW 554 (CAL)

Alak Kumar Bera v. Aritra Chatterjee

2012-06-25

J.N.PATEL, SAMBUDDHA CHAKRABARTI

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JUDGMENT 1. The certified copy of the order impugned in this appeal is filed in court today. Let the same be kept on record. 2. This is an application for stay of operation of the order dated April 27, 2012 passed by a learned Single Judge of this court in W.P. 8477 (W) of 2012. By the said order, the learned Single Judge had, inter alia, directed the Director of Health Services, West Bengal, to issue sponsorship certificates provisionally to the writ petitioners, so that the writ petitioners did not find any difficulty at the time of counselling. 3. While hearing the application for stay, we propose to dispose of the appeal itself with the consent of the learned advocates appearing for the parties and by treating the same as on day’s list. 4. The subject matter of challenge in the writ petition is the non-grant of sponsorship certificates for appearing at the counselling for admission to Post Graduate Medical Degree and Diploma Course. 5. In the writ petition, the writ petitioners have, inter alia, prayed for a writ in the nature of mandamus commanding the respondents to allow the writ petitioners to appear at the counselling and to allow them to get themselves admitted to the Post Graduate Course of Master of Dental Surgery for the session 2012 by issuing necessary sponsorship certificates to that effect and a writ in the nature of mandamus commanding the respondents not to give effect or further effect to the Memo dated March 31, 2005. The writ petitioners have, also, prayed for an interim order of injunction restraining the respondents from giving any effect or further effect to the said memo dated March 31, 2005 and also for an order directing the respondents to issue sponsorship certificates to the writ petitioners so that they might appear at the counselling for admission to the Post Graduate Course of Master of Dental Surgery. 6. At this stage, we need not enter into the details of the case. Suffice it to say, the writ petitioners joined the West Bengal Dental Service through Public Service Commission in the year 2009. The fact that the writ petitioners belong to the West Bengal Dental Service is not a matter of dispute and the writ petitioners have many times admitted this fact in their writ petition. 7. Suffice it to say, the writ petitioners joined the West Bengal Dental Service through Public Service Commission in the year 2009. The fact that the writ petitioners belong to the West Bengal Dental Service is not a matter of dispute and the writ petitioners have many times admitted this fact in their writ petition. 7. The writ petitioners are, however, aggrieved by the notification for admission to the Post Graduate Course of Master of Dental Surgery issued by the West Bengal University of Health Sciences wherein there was a specific stipulation that in-service candidates, who are sponsored by the Department of Health and Family Welfare, Government of West Bengal, are eligible to apply for admission to the said course for the government service-sponsored seats. The candidates applying for those seats are required to produce sponsorship certificates from the competent authority of the Department of Health and Family Welfare, Government of West Bengal, before taking entry at the counselling premises and for the purpose of being considered for admission about his/her eligibility. 8. The writ petitioners’ grievance is that the competent authority of the State of West Bengal has not issued the necessary sponsorship certificates in spite of the fact that they have applied for the same. On such grievance, the writ petitioners have filed the writ petition with the prayers as mentioned hereinbefore. 9. It appears from the order impugned in this appeal that before the learned Single Judge there was two competing documents – one was memo dated March 31, 2005 and the other was a Rule of 2008. 10. It was sought to be contended, as it appears from the order impugned, on behalf of the State respondents that the period of three years should have been completed on the date of the Post Graduate Entrance Examination, which was held on January 22, 2012. Reliance was, accordingly, placed on a memo dated March 31, 2005 issued by the Special Secretary, Department of Health and Family Welfare, Government of West Bengal. The said memo, inter alia, stipulated that the length of qualifying services of three years including two years services in non-CMDA area was to be counted as on the date of actual Post Graduate Entrance Examination. The said memo, inter alia, stipulated that the length of qualifying services of three years including two years services in non-CMDA area was to be counted as on the date of actual Post Graduate Entrance Examination. The occasion for issuance of the said memo was the receipt of several applications by the concerned department from the doctors belonging to the West Bengal Dental Services, who had completed two years but less than three years qualifying services for undergoing Master of Dental Surgery courses. According to the State of West Bengal, this memo of 2005 still governs the field. 11. The submission, as aforesaid, was found to be not tenable by the learned Single Judge. According to the learned Single Judge, the said memo was superseded by the Trainee Reserve Rules, 2008 and after framing of this rule, the earlier memo has lost its all significance. The learned Single Judge, therefore, came to the further finding that sponsorship certificates, in any case, had to be issued on the basis of the said rules of 2008. 12. We have given our anxious consideration to the merits of the cases of the respective parties. We are of the, prima facie, view that the Rules of 2008 do not have any manner of application to the facts of the present case. The Trainee Reserve Rules were issued under Section 21 of the West Bengal State Health Service Act, 1990. The said Act empowered the State Government to constitute two health services, namely, West Bengal Medical Education Service and West Bengal Health Service. 13. Mr. Arabinda Chatterjee, learned advocate appearing for the appellants, submits that the Trainee Reserve Rules, 2008 have no application to the employees of the West Bengal Dental Services. Although the West Bengal State Dental Service Act was enacted in 2009, the Dental Service was in existence from a period long before the said Act came into picture. It would become quite evident from different government notifications, memo, etc. 14. The West Bengal State Dental Service Act, 2009 like the West Bengal State Health Service Act, 1990 had, also, similarly empowered the State of West Bengal to constitute two different services bifurcating the old West Bengal Dental Services. That does not detract the basic position that West Bengal Health Services and West Bengal Dental Services are two distinct services and they are separate in existence. 15. That does not detract the basic position that West Bengal Health Services and West Bengal Dental Services are two distinct services and they are separate in existence. 15. We are, prima facie, of the view that the Trainee Reserve Rules of 2008 are not applicable to the employees belonging to the West Bengal Dental Services. The writ petitioners have, also, repeatedly mentioned it in their writ petition unambiguously and that seems to be the stand taken by them. 16. Thus, the very foundation of the interim order having found to be not sustainable, the interim order need not continue. 17. Mr. Ashish Sanyal, learned advocate appearing for the writ petitioners has, however, raised another issue. Mr. Sanyal also does not for once dispute that the Rules of 2008 per se do not apply to the case of the writ petitioners as they belong to the West Bengal Dental Services, but, according to him, as members of both the services belong to the same Department of Health having two separate rules fixing different cut off dates and consequently having the eligibility criterion for admission to post graduate courses is violative of Article 14 of the Constitution of India. In other words, the State Government cannot take two different stands for employees of two different services, more so before the statutory bifurcation was made. 18. For our present purpose, we need not enter into this aspect of the submission as advanced by Mr. Sanyal. We have gone through the writ petition, which is, primarily, concerned with non-grant of sponsorship certificates for the in-service candidates. The point, as aforesaid, has neither been pleaded in the writ petition nor any relief has been sought for on the basis of such allegation. Neither does it appear to have been canvassed before the learned Single Judge nor does it appear that the learned Single Judge passed a mandatory interim order on the ground of any discrimination allegedly made between the employees of the two different services. Thus the interim order passed by the learned Single Judge cannot be sustained on that ground. 19. The order impugned in this appeal is, thus, set aside and the appeal stands allowed. 20. We have been informed that pursuant to the order passed by the learned Single Judge, no affidavit in opposition has yet been filed to the writ petition. 21. We extend the time for filing affidavits. 19. The order impugned in this appeal is, thus, set aside and the appeal stands allowed. 20. We have been informed that pursuant to the order passed by the learned Single Judge, no affidavit in opposition has yet been filed to the writ petition. 21. We extend the time for filing affidavits. Let affidavit in opposition to the writ application be filed within a period of two weeks from date; reply thereto, if any, be filed by one week thereafter and we request the learned Single Judge to dispose of the writ petition as expeditiously as possible. 22. In view of disposal of the appeal, the connected application for stay becomes infructuous and the same is, also, disposed of. 23. There will be no order as to costs. 24. Xerox certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.