TAPAS KUMAR MONDAL AND ORS. ETC. Vs TAPAS KUMAR MONDAL . ETC.
Bench: M.Y. EQBAL,C. NAGAPPAN
Case number: C.A. No.-006689-006690 / 2015
Diary number: 14793 / 2015
Advocates: RAUF RAHIM Vs
Page 1
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.6689-6690 OF 2015 (Arising out of S.L.P.(Civil) Nos.14244-45 of 2015)
Dr. Tapas Kumar Mandal and others etc. …..Appellant(s)
versus
State of West Bengal and others ..Respondent(s)
JUDGMENT M. Y. EQBAL, J.
Leave granted.
2. These appeals by special leave are directed against the
Judgment and order dated 17.04.2015 passed by the Division
Bench of High Court of Calcutta in A.S.T. Nos. 51 & 52 of
2015 dismissing the writ petitions preferred by the appellants
against the order of the West Bengal Administrative Tribunal
refusing to pass an interim order and fixing the matter for
final hearing.
1
Page 2
3. The facts of the case in brief are that the appellants-writ
petitioners, who are all Doctors serving under the Department
of Health and Family Welfare, Government of West Bengal,
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 2008.
It is appellants’ case 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 counselling, all of them 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 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 (in short, “T. R. Rules of 2008”), which enabled them to
2
Page 3
study in the said courses as applicable to in-service
candidates. Such T. R. facilities were allowed by the
Government vide different memos issued from time to time.
4. It has been pleaded on behalf of the appellants that they
have 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.
Further 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.
5. The West Bengal University of Health Sciences issued an
Advertisement on 12.12.2014 pertaining to the West Bengal
Post Graduate Medical Admission Test, 2015. They also
3
Page 4
published the Rules and Regulations of the said Admission
Test. The writ petitioners submitted their formal applications
before the concerned authorities so as to enable them to
appear in the said 2015 Tests. It has been contended by the
appellants 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 appellants submitted Proforma of Sponsorship
Certificates, which were duly accepted by the concerned
authorities. The appellants 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 appellants
also submitted hardcopies of such Applications within the
specified time.
4
Page 5
6. In February, 2015, Written Test for the 2015 Tests was
held in which appellants appeared and in the results, which
were published on 11.2.2015, appellants got comfortable
ranks and top positions. As pleaded on behalf of the
appellants, on 17.03.2015 a List was published in the website
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.
Hence, it is contended by the appellants that they were found
eligible for being given Sponsorship Certificates. However, on
20.3.2015, the authorities published yet another Notice in
their website giving out the names of 223 candidates giving
similar instructions for personally collecting the Sponsorship
Certificates. But in this Notice, the names of the present
appellants were dropped out. Upon enquiry, they came to
learn that the authorities had taken a decision that they would
not allow candidates, who had passed Diploma within the last
5
Page 6
three years and as such their names had been dropped.
Being aggrieved, the appellants sent a Letter of Demand for
justice as well as Objection against such act and prayed for
modifying their stand of not allowing such persons who had
passed Diploma within the last three years. According to the
appellants, this was a condition, which was de hors the
provisions of the Trainee Reserve Rules of 2008.
7. The names of the appellants were again not published in
another Notice dated 23.03.2015, whereby the authorities
allowed several Doctors, who had completed their Post
Graduate Diploma prior to 2012 and before entering service
and, according to the appellants, even the candidates, who
had not completed 2/3 years rural service, which was
compulsory as per the Rules, were allowed. It has been
alleged on behalf of the appellants that these Doctors had
several relatives/cousins/nephews in the higher echelons of
the Government and, therefore, the action was motivated and
mala fide.
6
Page 7
8. It has been further pleaded by the appellants that by a
Notification dated 24.03.2015, 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 appellants,
this order is illegal, arbitrary and proceeds to debar the
appellants purportedly on a ground, which is beyond the
grounds mentioned in the Rules. According to them, despite
being toppers of the merit list they could not participate in the
counselling session.
9. Aggrieved appellants, therefore, immediately approached
the First Bench of the West Bengal Administrative Tribunal (in
short, “the Tribunal”), which dismissed their petition on the
ground that Clause 9 of the T.R. Rules of 2008 had a
non-obstante Clause whereby the Government had a
7
Page 8
discretionary power in matters regarding placement of Trainee
Reserve candidates and that no interim orders could be
passed at that stage. Appellants, thereafter, knocked the
doors of the High Court by filing writ petitions, which were
dismissed by the Division Bench holding that the discretion
that has been exercised in the instant case does not suffer
from any irregularity and it is based on logic, equality and on
public policy since Rule 9 of the aforesaid 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.
10. Hence, the aggrieved Doctors are before us by way of
these appeals by special leave. We have heard learned counsel
for the parties at length and perused the concerned Rules.
8
Page 9
11. Mr. Huzefa Ahmadi, learned senior counsel appearing for
the appellants, mainly contended that only after the appellants
were selected, the Notification was published on 24.3.2015
indicating that in-service candidates who had obtained
diploma in the years 2012-2014 would not be considered for
the degree course and only pre-2012 diploma holders would be
considered. According to the learned senior counsel, there is
no rationale for this discrimination particularly when one of
the appellants all the three times finally ranked in the merit
list for the degree course. It was contended that at the time of
filling of the form for the degree course the eligibility criteria
did not specify that only pre-2012 diploma holders will be
considered as candidates for the degree course. As a matter of
fact, the selection procedure was arbitrarily changed after the
appellants were selected and called for giving sponsorship
certificate. Mr. Ahmadi also referred to some decisions to the
proposition that inter se merit cannot be overlooked to
promote seniority which has no place in the MCI Regulations.
9
Page 10
12. Per contra, Mr. Kalyan Bandopadhyay, learned senior
counsel appearing for the respondents, at the very outset fairly
submitted that he has nothing to say so far the merits of the
appellants are concerned. But the action taken by the
respondents cannot be held to be mala fide. Indisputably,
appellants got the benefit of three years of service. It is not the
case of admission in the open category.
13. Perusal of the impugned order passed by the High Court
will show the reasons assigned for giving priority to those
Doctors who have completed their diploma courses much
before the appellants. Admittedly, the Government has given
opportunity to those Doctors, who had got one specialization
more than three years back and they are senior to the
appellants. The High Court also took note of the fact that
there is a huge deficiency of Doctors in the State and the
Government is contemplating of opening of new
super-specialty hospitals by the year 2015-16.
10
Page 11
14. From perusal of the relevant Rule, it is evident that the
placement of the Doctors shall be at the discretion of the
Government. Merely because the appellants were allowed in
the examination and found place in the select list does not give
them right as in-house Doctors to get priority above their
seniors.
15. In the peculiar facts and circumstances of the case, we
do not find any reason to interfere with the impugned order.
However, we record the assurance given by Mr. Bandopadhyay
that the appellants will be given sponsorship for the next year
2016-17.
16. For the aforesaid reason, we dismiss these appeals.
However, there shall be no order as to costs.
……………………J. (M.Y. Eqbal)
……………………J. (C. Nagappan)
New Delhi September 01, 2015
11