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2015 DIGILAW 349 (CAL)

Satinath Ghosh v. State of West Bengal

2015-04-17

SIDDHARTHA CHATTOPADHYAY, TAPEN SEN

body2015
JUDGMENT : Tapen Sen, J. This Writ Petition has been assigned before us by the Hon'ble the Chief Justice by an Administrative Order dated 06.04.2015. It is on that score that we have taken up this matter. The matter was heard on different dates and finally, on 10.04.2015, the learned Additional Advocate General stated that in view of the extreme urgency of the matter, he was not interested in filing any affidavit-in-opposition, but the Notes of Submissions, which he filed on that day, may be treated as the affidavit-in-opposition of the State. 2. We, accordingly, took the said Notes of Submissions on record. The arguments were concluded on that day and we reserved Judgment. 3. This Writ Petition is directed against the Order dated 31.03.2015 passed by the learned West Bengal Administrative Tribunal (First Bench) whereby and whereunder the said learned Tribunal refused to pass an interim order and fixed the matter for final hearing on 4.5.2015. 4. The Petitioners have also prayed for an Order for modifying the impugned order passed by the learned Tribunal by passing an interim order protecting the interests of the Petitioners with a direction that they be given temporary Sponsorship Certificates and be also allowed to participate in the counseling for the West Bengal Post Graduate Medical Admission Test, 2015 and be allowed to be registered to appear for counseling by not giving effect to the Memo dated 24.03.2015 whereby and whereunder the Joint Secretary to the Government of West Bengal, Department of Health and Family Welfare, in purported compliance of the Order of the Governor, informed that in compliance of his Discretion vested upon him under Clause 9 of the West Bengal Medical Education Service, the West Bengal Health Service and the West Bengal Public Health-cum-Administrative Service (Placement on Trainee Reserve) Rules, 2008 (hereinafter referred to for the sake of brevity as the said Rules), those Doctors, who had acquired P.G. Diploma/Degree on availing T.R. Facility within the last three years (1.4.2012 to 31.3.2015), will not be allowed further T.R. facility during the current year being 2015. The said Memo was indicated to be in the interests of the public and to overcome the exigency due to crisis of Specialist Medical Officers in Government Health Facilities. 5. The said Memo was indicated to be in the interests of the public and to overcome the exigency due to crisis of Specialist Medical Officers in Government Health Facilities. 5. The Petitioners have further prayed for the issuance of an appropriate Writ for setting aside the said Memo dated 24.03.2015 referred to above (hereinafter referred to for the sake of brevity as the 2nd Impugned Order) being irregular, illegal, unreasonable, unethical, discriminatory, based on unreasonable classification and in violation of Articles 14 and 16 of the Constitution of India. 6. The Petitioners have further prayed for an Order commanding upon the Respondents to issue Sponsorship Certificates for the aforementioned Post Graduate Medical Admission Test, 2015. 7. The Petitioners have finally prayed for an interim Order directing the Respondents not to give effect to the 2nd impugned order till disposal of this Writ Petition. 8. The Petitioners are all Doctors serving under the Department of Health and Family Welfare, Government of West Bengal. All of them had obtained M.B.B.S. Degree and were issued Registration Certificates from the West Bengal Medical Council in different years. All of them are permanent employees under the Department of Health and Family Welfare, Government of West Bengal, having joined their services mostly before the year 2008. 9. The Petitioners have stated that the West Bengal University of Health Sciences published an Advertisement for the West Bengal Post Graduate Medical Admission Test for the years 2011-2012. They all got rank in the test of 2011 or in the test of 2012 and after counseling, all of them obtained diploma courses and were admitted to different Diploma courses and they all completed their courses in the year 2014 with Trainee Reserve Facility (T.R. Facility) following the T. R. Rules of 2008, which enabled them to study in the said courses as applicable to in-service candidates. Such T.R. facilities were allowed by the Government vide different memos mentioned in Paragraph 6 of the Writ Petition. 10. The Petitioners have stated that they availed two years' T.R. Facilities on completion of their courses and that they had also availed T.R. facilities to which they were entitled to get and all of them had obtained such facility in the year 2012, which came to be completed in the year 2014, just after completion of their Diploma courses. 11. The Petitioners have stated that they availed two years' T.R. Facilities on completion of their courses and that they had also availed T.R. facilities to which they were entitled to get and all of them had obtained such facility in the year 2012, which came to be completed in the year 2014, just after completion of their Diploma courses. 11. The Petitioners have further stated that on completion of their Post Graduate Diploma Courses in the year 2014, their Results were duly published and all of them passed the examinations and joined duty. Some of them were posted at different Health Centres while others at different Hospitals, but all of them had passed the Diploma courses with good marks. 12. On 12.12.2014, West Bengal University of Health Sciences caused an Advertisement to be made in the website of the University pertaining to the West Bengal Post Graduate Medical Admission Test, 2015. They also published the Rules and Regulations of the said Admission Test nomenclating the same "Information Booklet". The Petitioners submitted their formal applications before the concerned authorities so as to enable them to appear in the said 2015 Tests. The applications were duly received by the concerned authorities within time. The Petitioners have stated that they were all eligible and the process of allowing in-service Doctors to take the Tests was being followed by the concerned Department for several years and, therefore, the Petitioners submitted Proforma of Sponsorship Certificates, which were duly accepted by the concerned authorities. 13. The Petitioners then applied for the West Bengal Post Graduate Medical Admission Test, 2015 by submitting necessary documents along with the necessary fees in the category of Government Sponsored Candidates. The authorities of the Department of Health and Family Welfare, Government of West Bengal then allowed them to appear and the University of Health Sciences also accepted their Application Forms on-line and subsequently, the Petitioners also submitted hardcopies of such Applications within the specified time. 14. The Written Test for the 2015 Tests was held on 1.2.2015 and the Petitioners appeared and the results were published on 11.2.2015. The Petitioners have stated that all of them got comfortable ranks and top positions in the results. 15. 14. The Written Test for the 2015 Tests was held on 1.2.2015 and the Petitioners appeared and the results were published on 11.2.2015. The Petitioners have stated that all of them got comfortable ranks and top positions in the results. 15. The Petitioners have further stated that on 17.03.2015 a List was published in the website (Annexure "P-9" to the Writ Petition) informing, inter alia, that the persons mentioned therein had qualified for acquiring Sponsorship Certificates for the W.B.P.G.M.A.T. 2015 and they were instructed to go to the concerned Office and collect their Certificates personally between 18.3.2015 and 19.3.2015 between 12 noon to 4.30 P.M. and on failure to collect the same on the said stipulated date and time, they could go back on 23.03.2015 at 3.00 P.M. Other instructions were also given, but in effect, what the Petitioners want to state, is that they were found eligible for being given Sponsorship Certificates. 16. On 20.3.2015, the authorities published yet another Notice in their website giving out the names of 223 more candidates giving out similar instructions for personally collecting the Sponsorship Certificates. 17. The Petitioners have stated that in the Notice dated 20.03.2015, the names of the present Petitioners were, however, dropped out. Upon enquiry, they came to learn that the authorities had taken a decision that they will not allow candidates, who had passed Diploma within the last three years and that was why, their names had been dropped. 18. Being aggrieved, the Petitioners sent a Letter of Demand for justice as well as Objection against such wrongful act and prayed that they modify their stand of not allowing such persons who had passed Diploma within the last three years. According to the Petitioners, this was a condition, which was de hors the provisions of the Trainee Reserve Rules of 2008. 19. Thereafter, on 23.03.2015 another Notice was published with 57 candidates and the names of the Petitioners were again left out. The authorities allowed several Doctors, who had completed their Post Graduate Diploma prior to 2012 and before entering service and even the candidates, who had not completed 2/3 years rural service, which was compulsory as per the Rules, were allowed. According to the Petitioners, these Doctors had several relatives/cousins/nephews in the higher echelons of the Government and, therefore, the action was motivated and mala fide. 20. According to the Petitioners, these Doctors had several relatives/cousins/nephews in the higher echelons of the Government and, therefore, the action was motivated and mala fide. 20. The Petitioners have further stated that subsequently, by a Notification dated 24.03.2015 (2nd Impugned Order), the Joint Secretary to the Government of West Bengal, Department of Health and Family Welfare informed, inter alia, that in exercise of powers conferred under Clause 9 of said T. R. Rules of 2008, those Medical Officers, who had acquired Post Graduate Diploma/Degree on availing facilities within the last three years (1.4.2012 to 31.3.2015), would not be allowed further T.R. facility during this year (2015). According to the learned Counsel for the Petitioners, the rights of these Petitioners flow from the Rules itself. These Rules have been brought on record vide Annexure "P-2". According to the learned Counsel, the 2nd Impugned Order dated 24.3.2015 is illegal, arbitrary and proceeds to debar the Petitioners purportedly on a ground, which is beyond the grounds mentioned in the Rules. 21. We have perused the Rules. The criteria for Placement on Trainee Reserve is Rule 3 and Rule 6 provides that any Officer after completion of one course by availing "Trainee Reserve" facility may be eligible for further Government Sponsorship as "Trainee Reserve" for the Postdoctoral/Postgraduate Degree/Post-doctoral Diploma course after the Results of the first course have been officially published. However, the Bond period and the Bond money given earlier, shall be carried forward and computed summatively after the incumbent had completed the second course. 22. Learned Counsel further submits that once the Petitioners were selected, the Respondents cannot be allowed to render otiose their selection by passing the 2nd Impugned Order. Learned Counsel further submits that the 2nd Impugned Order was in fact preceded by another Order dated 19.03.2015 issued under Memo No. HAD/10M-101-13/130 (running page 168) whereby and whereunder the selection of the Petitioners published on 17.03.2015 regarding their being called for obtaining Sponsorship Certificates were cancelled with a note that a next Notice/Order will be published soon. According to the learned Counsel, the first Notice dated 19.03.2015 did not contain any reasons whatsoever and, therefore, the 2nd Notice dated 24.03.2015 cannot be accepted since it proceeds to add reasons, which were not mentioned in the first Notice dated 19.03.2015 contrary to the judgment of the Hon'ble Supreme Court passed in the case of Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Others reported in AIR 1978 SC 851 : (1978) 1 SCC 405 . 23. The learned Additional Advocate General has submitted that the 2nd Impugned Order cannot be challenged because in the first Notice dated 19.03.2015, there was an indication that another Notice will be published soon. In other words, the first Notice dated 19.03.2015 cannot be treated to be a final Notice restraining the hands of the Government in issuing another Notice. According to him, the other Notice is the 2nd Impugned Order dated 24.03.2015 where reasons, in consonance with the interests of the State and of the public, have been not only indicated, but a specific ground has been given to the effect that those, who had acquired Postgraduate Diploma/Degree on availing T.R. facility within the last three years (1.4.2012 to 31.3.2015), will not be allowed further T.R. in the year 2015. 24. The learned Additional Advocate General has submitted, with reference to the Notes of Submissions, that the Petitioners had availed the T.R. Benefit and had obtained specialization through Diploma Courses in different disciplines and such qualification had been obtained by them only recently. According to him, the T.R. Rules itself lay down an elaborate procedure as to how T.R. Facility can be granted. He submits that the Petitioners are undoubtedly eligible, but so far as placement of the Trainee Reserves are concerned, a discretion has been bestowed upon the Government at Clause 9 of the said Rules, which clearly lays down that even when an Officer had been selected for a course, the placement shall be at the sole discretion of the Department of Health and Family Welfare. 25. We are in agreement with the submissions of the learned Additional Advocate General to the effect that mere eligibility does not create a vested right upon such eligible persons to claim placement as a matter of right. Placement depends on a number of factors. The situation varies from year to year and the number of seats available in the T.R. Quota in the State Government also keeps varying. 26. Placement depends on a number of factors. The situation varies from year to year and the number of seats available in the T.R. Quota in the State Government also keeps varying. 26. He further submits, with reference to Paragraph 6 of the Notes of Submissions, that in the current year, the Government has worked out and found that the number of in-service Doctors, who have been qualified in the Tests conducted by the Universities for admission to different Postgraduate Courses, is much higher than the quota, which is available under the Trainee Reserve Quota. 27. Learned Counsel has further stated that these Petitioners had pursued their Two Year Diploma Course during which time all of them were entitled to their full salaries. According to him, if the same group is given further T. R. Benefit consecutively or for the second time within such a short span of time, other Government Doctors will be deprived of their chance and who have been in queue since prior to 1.4.2012. Consequently, the Government can fill up the T.R. Quota by giving an opportunity to them as they had got one specialization more than three years back. According to him, these Doctors are senior to the Petitioners and, therefore, if the Petitioners are allowed, it will have the effect of making juniors higher qualified than their juniors. We are of the view that such submissions should be accepted as they show a rationale objective of the State. The Petitioners may be eligible, but there are others in the queue and, therefore, their eligibility cannot take away the rights of consideration of others and that too, when these Petitioners had, very recently, been given the benefits. 28. Moreover, if the State is taking the plea that the number of in-service Doctors, who have qualified this year outnumber the T.R. Quota, then in that event, the Court cannot force the Government to perform an impossibility following the principles of "lex non cogit ad impossibilia," (the law does not compel a man to do that which he cannot possibly perform). Consequently, if the High Court were to allow the prayer of the Petitioners, then in that event, it would have the effect of compelling the State to perform an impossibility. Consequently, if the High Court were to allow the prayer of the Petitioners, then in that event, it would have the effect of compelling the State to perform an impossibility. This may result in causing prejudice to the State running counter to the well-known concept of "Actus Curiae Neminem Gravabit" (An Act of Court shall prejudice no man). 29. Moreover, from the Notes of Submissions, we find a computerized chart which goes to show that there is a huge deficiency of Doctors in the State. It also adds that the Government is contemplating of opening 40 new Super-Speciality/Multi-specialty Hospitals, which are supposed to be made functional in the State by the year 2015-2016. Rule 9 of the concerned Rules clearly lays down that "placement" shall be at the discretion of the Government. Thus, even if a Doctor is eligible for further Government Sponsorship, he cannot claim, as a matter of right, that such sponsorship be given to him consecutively and in short intervals by not considering others, who are in queue for a period prior to 1.4.2012. We are, therefore, of the view that the discretion that has been exercised in the instant case does not suffer from any irregularity. On the contrary, it is based on logic, equality and on public policy. 30. The Judgment cited by the learned Counsel for the Petitioners in the case of Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Others reported in AIR 1978 SC 851 : (1978) 1 SCC 405 to the effect that once a statutory functionary makes an Order, it has to be judged on the basis of that Order and it cannot be allowed to be supplemented or complemented by addition of new grounds cannot, in the facts and circumstances of this case, be made applicable because the 1st Notice dated 19.03.2015 itself clearly stated that a next Notice will follow soon. In other words, the Notice dated 19.03.2015 was an indication of another Notice coming and that Notice is the 2nd Impugned Notice/Order wherein reasons have been given. Therefore, the 1st Notice dated 19.03.2015 was not a final Notice/Order. In other words, the Notice dated 19.03.2015 was an indication of another Notice coming and that Notice is the 2nd Impugned Notice/Order wherein reasons have been given. Therefore, the 1st Notice dated 19.03.2015 was not a final Notice/Order. In the background of the reasons given and considering the fact that the State Government has to devise methods to strike a balance between earlier Doctors, who have not been given the benefit and, Doctors like the Petitioners, who have already availed benefits recently, we do not find any reason to interfere in this Writ Petition. 31. The Writ Petition stands dismissed and as a result, we also hold that the learned Tribunal was correct in not passing any Interim Order as was prayed for. 32. The Writ Petition stands Dismissed. 33. However, there shall be no Order as to Costs. 34. This judgment is approved for Reporting. In re : A.S.T. 51 of 2015 This Judgment/Order will govern A.S.T. 51 of 2015 which is also on the Board. Urgent Certified Copy of this Judgment, if applied for, be supplied to the parties upon compliance of all necessary formalities.