Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 767 (CAL)

Rita Majumdar Das v. State of West Bengal

2014-08-13

R.K.BAG, TAPAN KUMAR DUTT

body2014
JUDGMENT : Tapan Kumar Dutt, J. The two appeals being F.M.A. 109 of 2012 and F.M.A. 110 of 2012 have been taken up for hearing together. 2. F.M.A. 109 of 2012 arises out of W.P. 10505(W) of 2010 and F.M.A. 110 of 2012 arises out of W.P. 15159(W) of 2010. The appellant in both the appeals is the writ petitioner in W.P. 10505(W) of 2010 and the respondent no. 8 in W.P. 15159(W) of 2010. The aforesaid writ petition being W.P. 10505(W) of 2010 was filed by the appellant with a prayer that direction may be given upon the Chief Medical Officer, Balurghat to issue an appointment letter to the appellant for the post of Auxiliary Nurse and Midwife at Alipore Sub-Health Centre under II No. Changispur Gram Panchayat. The case of the appellant was that the authorities concerned issued a Notification on 29.8.2008 in a daily newspaper inviting applications from eligible candidates for the post of Auxiliary Nurse and Midwife in various Sub-Health Centre in the District of Dakshin Dinajpur. Pursuant to the said Notification the appellant had applied and it also appears that the respondent no. 9 in W.P. 10505(W) of 2010 had also applied for the said post. It may be recorded here that the respondent no. 9 in the said writ petition is the writ petitioner in W.P. 15159(W) of 2010. The case of the appellant was that a panel of three candidates was prepared and the petitioner secured the second position in the said panel while the petitioner in W.P. 15159(W) of 2010 i.e. Arundhati Mahata (Mandal) secured the first position in the said panel. The appellant i.e. Rita Majumder (Das) felt aggrieved by the preparation of such panel and she made a complaint before the District Magistrate, Dakshin Dinajpur, Balurghat. The said District Magistrate heard both the parties i.e. Rita Majumder (Das) and Arundhati Mahata (Mandal) and ultimately by an order dated 15.7.2010 found that the said Arundhati Mahata (Mandal) could not prove that her name was enrolled in the electoral roll of Sontara and as such she could not justify her permanent residence at Sontara which was one of the eligibility criteria for selection to the said post. Accordingly, the said District Magistrate found that the said Arundhati Mahata (Mandal) cannot be treated as a permanent resident of Sontara and directed that the said Arundhati Mahata (Mandal)'s appointment to the post of Auxiliary Nurse and Midwife for the said centre be terminated immediately. 3. In the context of the said order dated 15.7.2010 passed by the said District Magistrate, Rita Majumder (Das) filed the writ petition being W.P. 10505(W) of 2010 with the above prayer. Arundhati Mahata (Mandal) filed the aforesaid writ petition being W.P. 15159(W) of 2010 with a prayer that the said order dated 15.7.2010 passed by the said District Magistrate be rescinded and/or cancelled and/or withdrawn. Both the aforesaid writ petitions were taken up for hearing together by an Hon 'ble Single Judge and by an order dated 2.2.2011 was pleased to dismiss the said W.P. 10505(W) of 2010 and allow the said W.P. 15159(W) of 2010 with a finding that the said District Magistrate could not have said that the said Arundhati Mahata (Mandal) cannot be treated as a permanent resident of Sontara. 4. Rita Majumder (Das) has challenged the said order in the two appeals before us. The appellant in both the appeals has filed a supplementary affidavit and the said Rita Majumder (Das) has stated that she had filed an application for obtaining information under the Right to Information Act, 2005 during the pendency of the appeal before the authority concerned. She has further stated that on 30.11.2013 the Block Medical Officer, Health & Member Secretary, Block Health & Family Welfare Samity, Khaspur Rural Hospital, Dakshin Dinajpur has issued a letter supplying the necessary information. It appears from the annexures to the said supplementary affidavit that the appellant did make such application before the authority concerned and it also appears that the said Arundhati Mahata (Mandal) had written a letter dated 19.10.2013 to the Block Medical Officer of Health of the Block concerned indicating that she intends to resign from her post on 18.11.2013 as she has been selected for the post of U.D.C. (C.P.W.D.) and her reporting date was expected to be on 19.11.2013 to the new post. It further appears from a copy of the said letter that her request was accepted by the authority concerned and the B.M.O.H. & Member Secretary, Block Health and Family Welfare Samity, Khaspur Rural Hospital, Dakshin Dinajpur by a letter dated 30.11.2013 informed the State Public Information Officer, Office of the District Magistrate, Dakshin Dinajpur, Balurghat with a copy of the said letter to the appellant to the effect that the said Arundhati Mahata (Mandal) is not attached to the Alipore Sub-Health Centre under Khaspur Rural Hospital from 19.11.2013 and a photocopy of the accepted resignation letter of the said Arundhati Mahata (Mandal) was also enclosed with the said letter. 5. The learned Advocate appearing on behalf of the appellant in both the appeals submits before this Court that in view of the annexures to the supplementary affidavit, it will appear that the said Arundhati Mahata (Mandal) is no longer in the said post of Auxiliary Nurse and Midwife as she has resigned from the said post and such resignation has also been accepted by the authority concerned. The learned Advocate appearing on behalf of the said Arundhati Mahata (Mandal), of course, has objected to such submission and he took a stand that the said Arundhati Mahata (Mandal) had only expressed her intention to resign but that was not the actual letter of resignation. 6. Be that as it may, it appears that the authority concerned has treated that letter as a letter of resignation and it also appears that the said Arundhati Mahata (Mandal) had made it very clear that she intends to resign with effect from 18.11.2013 and her letter was dated 19.10.2013 which also shows that she gave one month's notice of resignation. The authority concerned has accepted such letter and the proposal for resignation. It also appears from the records that the said Arundhati Mahata (Mandal) herself stated in the said letter dated 19.10.2013 that she has been selected for the post of U.D.C. (C.P.W.D.). 7. In the present day situation where to get a job is not an easy matter, a person cannot be permitted to dribble with the issue. It is clear that the said Arundhati Mahata (Mandal) has stated that she has been selected for another post, and her resignation in the post of Auxiliary Nurse and Midwife has been accepted by the authority concerned. 8. It is clear that the said Arundhati Mahata (Mandal) has stated that she has been selected for another post, and her resignation in the post of Auxiliary Nurse and Midwife has been accepted by the authority concerned. 8. The said learned Advocate for the State respondents has cited a decision reported at (2002)1 SCC 113 ( State of Punjab v. Raghbir Chand Sharma & Anr.) in support of his contention that once the first candidate named in the panel has been appointed and such first candidate subsequently resigns, then in that event a fresh panel has to be prepared as the first panel will have to be deemed to have lapsed. 9. We find that the Hon 'ble Supreme Court in similar circumstances at paragraph - 4 of the said reports was pleased to observe "With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently". 10. In view of the discussions made above, we are of the view that the order under challenge in both the appeals needs to be set aside and the appeals be disposed with the following directions : 11. The authority concerned shall treat the panel in which the name of the said Rita Majumder (Das) and the name of the said Arundhati Mahata (Mandal) had appeared as a panel which was outlived its utility and it has lapsed. In case the said post is remaining vacant as on today, the authority concerned shall take appropriate steps in accordance with law for filling up of the said post. 12. In case the appellant, Rita Majumder (Das), before this Court and the said Arundhati Mahata (Mandal) fulfil the necessary eligibility criteria for filling up of the said post of Auxiliary Nurse and Midwife, they shall be entitled to participate for the necessary selection in the said post in accordance with law. 13. Both the appeals are disposed of. 14. Let a copy of this judgement be also kept with the other file i.e. in F.M.A. 110 of 2012. 13. Both the appeals are disposed of. 14. Let a copy of this judgement be also kept with the other file i.e. in F.M.A. 110 of 2012. 15. Urgent certified xerox copy of this judgement, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities. Tapan Kumar Dutt, J. - I agree.