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2020 DIGILAW 217 (CAL)

Nure Shobha Begum v. State of West Bengal

2020-02-14

AMRITA SINHA

body2020
JUDGMENT : 1. Writ petition 6879 (W) of 2011 was filed by Shakila Bibi @ Khatun praying for issuance of a writ of mandamus inter alia praying for not giving effect to the impugned order dated 4th March, 2011 passed by the District Magistrate, Birbhum rejecting her representation. 2. The said Shakila Bibi challenged the selection of Nure Shobha Begum the private respondent no. 7 in the said writ petition, in the post of ASHA on the ground that she was not the resident of the village in which the ASHA will be engaged. 3. In compliance of a direction passed by this court on 3rd February, 2011 in WP No. 20009 (w) of 2010 filed by Shakila Bibi the District Magistrate, Birbhum considered the matter and after hearing the submissions made on behalf of all the necessary parties passed the impugned order on 14th March, 2011 whereby he was of the opinion that the empanelment of Nure Shobha Begum in serial no. 1 of the panel prepared for engagement of ASHA in village Bahirgora, under Hassan II Gram Panchayat was justified and proper and the allegation of the petitioner that the private respondent was not a resident of the village where the ASHA was to be appointed was negated. The District Magistrate was of the firm opinion that the private respondent was the resident of the village concerned and he held that the empanelment was made after observing all the terms and conditions of the advertisement. 4. The primary contention of Shakila is that on the date of the advertisement Nure Shobha neither had a ration card nor a voter's card in support of her residency in respect of the area where the ASHA was to be appointed. According to Shakila the private respondent Nure Shobha procured the essential documents required for engagement after the selection process was over and as such, the District Magistrate ought not to have permitted Nure Shobha to rely upon the said documents. As per Shakila the respondent ought to engage her being the second empanelled candidate in the post in question as she had all the relevant documents in support of her residency. 5. As per Shakila the respondent ought to engage her being the second empanelled candidate in the post in question as she had all the relevant documents in support of her residency. 5. As the writ petition filed by Shakila remained pending for a considerable period of time and the appointment letter was not issued in favour of the private respondent Nure Shobha Begum even though there was no order from the court restraining the issuance of the letter of appointment, accordingly, the private respondent Nure Shobha Begum filed a separate writ petition being W.P. No. 17548 (W) of 2019 praying for a direction upon the respondent authority to issue the letter of appointment in her favour. 6. The matter was very hotly contested by the parties. A report has been filed by the Block Medical Officer of Health wherein it has been mentioned that the State Mission Director, National Rural Health Mission and ex-officio Social Secretary, Department of Health and Family Welfare vide memo dated 11th December, 2006 framed a detailed implementation guideline for selection of Accredited Social Health Activists (ASHA). The Health and Family Welfare Samity, Rampurhat-II Block invited applications from eligible intending candidates vide memo dated 8th November, 2007 for appointment of ASHA in Hassan-II Gram Panchayat, Birbhum. After the selection process was over the Block Health and Family Welfare Samity, Rampurhat-II published a panel of selected candidates on 25th February, 2020. Nure Shobha Begum secured the first position in the panel and Shakila Bibi secured the second position. 7. The said Shakila Bibi challenged the validity of the selection process in a writ petition being W.P. No. 20009 (W) 2010 (Shakila Bibi alias Khatun -vs- State of West Bengal & Ors.). The said writ petition was heard and disposed of by this court on 3rd February, 2011 whereby the District Magistrate was directed to consider the representation made by Shakila Bibi in accordance with law after affording an opportunity to all necessary parties and to pass a reasoned order therein. 8. In compliance of the order the impugned order was passed, wherein the selection of Nure Shobha Begum was held to be just and proper. 9. In the report it has been further mentioned that the vacancy of ASHA in the said Gram Panchayat is existing. 10. 8. In compliance of the order the impugned order was passed, wherein the selection of Nure Shobha Begum was held to be just and proper. 9. In the report it has been further mentioned that the vacancy of ASHA in the said Gram Panchayat is existing. 10. The learned advocate appearing for Nure Shobha Begum submits that though her selection was confirmed in 2010 but due to the pendency of the writ petition being W.P. No. 6879 (W) 2011 the appointment letter was not issued in her favour and she is being highly prejudiced for the same. She prays for necessary direction upon the respondents to issue the appointment letter in her favour. 11. The learned advocate appearing on behalf of Shakila raises a preliminary objection with regard to the maintainability of the writ petition filed by Nure Shobha Begum in 2019 on the ground of delay and laches on her part. It has been submitted that Nure Shobha Begum was all along aware that the writ petition filed by Shakila was pending since 2011. The right of Nure Shobha Begum to be appointed in the post in question got crystallized the moment the District Magistrate was of the opinion that her empanelment in serial no. 1 was justified and proper. It has been contended that Nure Shobha Begum chose not to exercise her right by not approaching this court earlier and lately approaching this court in 2019 long after the panel was published. 12. It has further been argued that the validity of the panel is long over and no direction ought to be given upon the respondent for issuance of the appointment letter in favour of any empanelled candidate. 13. Ld. Advocate representing Shakila relies upon Section 2(g) of The Limitation Act, 1963 and submits that the "period of limitation" means the period of limitation prescribed for any suit, appeal or any application in the Schedule to the Act, and the "prescribed period" means the period of limitation computed in accordance with the provisions of the Act. 14. The learned advocate relies upon Article 137 of the Schedule specifying the period of limitation under The Limitation Act, 1963 which mentions that any application for which no period of limitation is provided, the period of limitations is three years from the date when the right to apply accrues. 14. The learned advocate relies upon Article 137 of the Schedule specifying the period of limitation under The Limitation Act, 1963 which mentions that any application for which no period of limitation is provided, the period of limitations is three years from the date when the right to apply accrues. According to Shakila the right of Nure Shobha Begum to be appointed as ASHA accrued when the panel was published, i.e. nearly ten years back and accordingly the application filed by Nure Shobha Begum for implementation of the panel at such a belated stage cannot and does not arise at all. 15. The learned advocate appearing for Shakila Bibi also relies upon Rule 53 of the Appellate Side Rules of the High Court at Calcutta relating to applications under the Article 226 of the Constitution wherein it has been mentioned that save and except as provided by the Rules and subject thereto, the provisions of the Code of Civil Procedure in regard to suit shall be followed, as far as it can be made applicable in all proceedings under Article 226. The learned advocate presses the ground of delay by relying on the decision delivered by the Hon'ble Supreme Court in the matter of Chennai Metropolitan Water Supply and Sewerage Board & Ors. -vs- T. T. Murali Babu reported in AIR 2014 SC 1141 (paragraph 16) wherein the court held that if an aggrieved person without adequate reason approaches the court at his own leisure or pleasure the court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. It mentions that it is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. Shakila prays for dismissal of the writ petition filed by Nure Shobha Begum at a belated stage and for issuance of the letter of appointment in her favour. 16. The learned advocate representing Nure Shobha Begum submits that as the issue in dispute was pending consideration before this court since 2011 and she being a party in the pending writ petition was not advised to file a separate writ petition for a direction upon the respondents for issuance of letter of engagement in her favour. 16. The learned advocate representing Nure Shobha Begum submits that as the issue in dispute was pending consideration before this court since 2011 and she being a party in the pending writ petition was not advised to file a separate writ petition for a direction upon the respondents for issuance of letter of engagement in her favour. It has been submitted that as the writ petition was kept pending for a considerable period of time Nure Shobha Begum was compelled or rather left with no other option but to file a writ petition praying for issuance of a letter of engagement in her favour. 17. It has been submitted that had the 2011 writ petition being disposed of in proper time there would not have been any requirement on her part to file a fresh writ petition. Moreover, according to Nure Shobha Begum, filing another writ petition for a direction for issuance of the letter of engagement would amount to multiplicity of proceedings which was sought to be avoided. 18. Nure Shobha Begum prays for a direction upon the respondent authority for issuance of letter of engagement in her favour in accordance with the conclusion arrived at by the District Magistrate, Birbhum. 19. I have heard the submissions made on behalf of all the parties. The respondent authorities that is the Block Medical Officer of Health and the Block Development Officer, Rampurhat-II has filed separate reports wherein it has been indicated that the issue of residency of Nure Shobha Begum was duly considered and on perusal of the ration card and other relevant document in support of her residency the concerned authority have come to the conclusion that Nure Shobha Begum was a resident of the area where the ASHA is to be appointed and accordingly intimation was sent to Nure Shobha Begum to join as ASHA Karmee but she neither turned up nor gave any reply stating the reasons for non-joining. Copy of the letter dated 9th March, 2011 has been annexed to the report. On perusal of the said letter dated 9th March, 2011 it appears that the same is a letter by which the reasoned order of the District Magistrate, Birbhum was communicated to the parties. It is not a communication directing Nure Shobha Begum to report to work or to join duties. On perusal of the said letter dated 9th March, 2011 it appears that the same is a letter by which the reasoned order of the District Magistrate, Birbhum was communicated to the parties. It is not a communication directing Nure Shobha Begum to report to work or to join duties. There is nothing on record to show that during the pendency of the writ petition since April, 2011 Nure Shobha Begum was ever directed to report before the concerned authority for joining the job in question. The logical conclusion is that the respondent authority did not take any step for issuance of the letter of engagement in favour of Nure Shobha Begum solely because of the reason of the pendency of the writ petition challenging the order of the District Magistrate, Birbhum. As no order was ever passed restraining the respondents from issuing the letter of engagement in favour of the first empanelled candidate it was incumbent upon the respondents to take steps for formal completion of the selection process by issuance of the letter of engagement in favour of the selected candidate. The respondents ought not to have waited for issuance of the letter of engagement on the plea of pendency of the writ petition before the court. 20. It appears from record that Shakila filed the writ petition in April, 2011. When the matter appeared in the list on 8th August, 2011 none appeared on behalf of the parties and the matter was directed to go out of the list. Since thereafter it does not appear that any step was taken by Shakila to get the matter heard by the court, presumably because pendency of the writ petition was enough reason for the respondents to dissuade themselves from issuing the letter of engagement in favour of Nure Shobha Begum. The sole intention of Shakila was to stall the entire process. It is only when Nure Shobha Begum filed the writ petition in 2019 a direction was passed in the latter writ petition for tagging the 2011 writ petition so that both the matters may be heard analogously and disposed of by the court. 21. The conduct of Shakila clearly implies that she was well aware that being the second empanelled candidate she was not eligible for being engaged in the post in question and accordingly she did not proceed further with her writ petition. 21. The conduct of Shakila clearly implies that she was well aware that being the second empanelled candidate she was not eligible for being engaged in the post in question and accordingly she did not proceed further with her writ petition. Shakila raised the plea that no appointment can be given from the panel as the same lost its validity due to passage of time. The aforesaid submission also implies that being aware that there is no scope of her engagement she is fighting tooth and nail to stall the engagement of Nure Shobha Begum. 22. It is clear from the conduct of Shakila that she being an unsuccessful candidate has adopted a dog in the manger policy and has left no stone unturned to stall the issuance of the letter of engagement in favour of the successful candidate. 23. The point of limitation raised by Shakila does not appeal to the court in view of the fact that the writ petition filed by Shakila in which Nure Shobha Begum is a party was filed within the prescribed period of limitation and the same remained pending till date. Irrespective of the fact whether Nure Shobha Begum filed the latter writ petition or not, any order passed in the earlier writ petition shall cover the case of both Shakila and Nure Shobha Begum. 24. It is only when after waiting for a considerable period of time that Nure Shobha Begum was compelled to file a writ petition in 2019 praying for necessary orders in her favour. The second writ petition could have been surely avoided had the first writ petition been proceeded with diligence. 25. The Hon'ble Supreme Court time and again has laid down the law that an unsuccessful candidate cannot turn around belatedly and challenge the selection process alleging irregularity and illegality. 26. Nure Shobha Begum has filed an affidavit wherein she has annexed documents in support of her residency in the area where the ASHA is to be engaged. As the District Magistrate, Birbhum, one of the respondents in the writ petition, perused the documents in support of both the parties and have come to the conclusion that the empanelment of Nure Shobha Begum at serial no. 1 is justified and proper accordingly, both the writ petitions are disposed of by this common order with the directions mentioned herein below. 27. 1 is justified and proper accordingly, both the writ petitions are disposed of by this common order with the directions mentioned herein below. 27. The District Magistrate, Birbhum is directed to take immediate steps for completion of the selection process, which was kept in abeyance for no plausible reason, by issuance of the letter of engagement in favour of the first empanelled candidate. The selection process shall be positively completed within a period of four weeks from the date of communication of a copy of this order. 28. W.P No. 6879 (W) of 2011 stands dismissed. W.P No. 17548 (W) of 2019 stands disposed of. Urgent certified photo copy of this order, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities.