Tania Mukherjee And Others vs The State Of West Bengal & Ors
2021 Latest Caselaw 6070 Cal

6th December, 2021
     (D/L No.39)
      (SKB)

                                W.P.A. 17775 of 2021
                                 (Via Video Conference)

                              Tania Mukherjee and others
                                         Versus
                            The State of West Bengal & Ors.


                            Mr. Pratik Dhar,
                            Mr. Kartik Kumar Roy
                                                      ... for the petitioners.

                            Mr. Indranil Roy,
                            Mr. Sunit Kumar Roy
                                ... for the National Medical Commission.

                            Mr. Samrat Sen,
                            Mr. Suman Dey
                                                             ... for the State.

                            Mr. Debu Chowdhury
                                             ... for respondent no.7.

The petitioners are 53 medical officers who are

engaged in different government hospitals in the State of

West Bengal. The petitioners seek the respondent to

show cause as to why the impugned notification dated

8th October, 2021 should not be set aside in absence of

sufficient cause in that respect.

The extent of challenge to the impugned

notification is not to the entirety of the notification but

limited to the 4th paragraph of that notification by which

the Department of Health and Family Welfare,

Government of West Bengal mandates that in order to

avail "in-service" candidates of the said Department who

are rendering service in government hospitals would

have to serve in rural or remote areas for a minimum of

three years aggregate as on 30th April, of an academic

year for being considered as eligible for such "in-service"

quota.

It should be pointed out that the impugned

notification dated 8th October, 2021 is in terms of a

Judgment delivered by a five Judges Bench of Supreme

Court in Tamil Nadu Medical Officers Association and

others Vs. Union of India and others: (2021)6 SCC 568,

paragraph 97 of which contains an expectation that the

respective state governments providing for a separate

channel of entry should make a minimum service in

rural or remote or difficult areas mandatory for a

specific period before a candidate can seek admission

through such separate channel and also subsequent to

obtaining the degree.

According to learned counsel appearing for the

petitioners, the challenge is to the portion of the

impugned notification which makes the three years

service in remote/rural/difficult areas mandatory for

being considered for the "in-service" quota. It is the

position of the petitioners that the impugned notification

was introduced in the face of an existing notification of

2nd June, 2015 as amended on 21st January, 2016

already providing for certain requirements for qualifying

for the "in-service" quota in the form of candidates

putting in three years in specialized units like Critical

Care Unit, Intensive Cardiac Care Unit etc. Counsel

submits that since the petitioners have already fulfilled

the required criteria under the notification of 2015-

2016, the subsequent notification dated 8th October,

2021 would set petitioners back for a period of three

years which the Supreme Court did not mean in the

expectation expressed in paragraph 97 of Tamil Nadu

Medical Officers Association (supra).

The above position is disputed by learned counsel

appearing for the State and submits that the

notifications relied upon do not apply to the petitioners

and that the petitioners in any event not in a position

challenge a policy decision of the government.

The National Medical Commission and the

National Medical Board and Education are represented.

Since the arguments point to a contentious issue

turning upon a consideration of a judgment of the

Supreme Court of 31st August, 2020 and there are

several representations made by the writ petitioners to

the Health Secretary, Government of West Bengal,

which have not been responded to by the latter till date,

this court is of the view that before the petitioners are

permitted to urge their case any further, W.P.A.17775 of

2021 can be disposed of with a direction to the

respondent no.5 being the Special Secretary,

Department of Health & Family Welfare, Government of

West Bengal, to dispose of the last representations made

by the petitioners dated 25th October, 2021 or any other

representation which the petitioners may make by 9th

December, 2021 by way of a reasoned order after giving

an opportunity of hearing to all concerned parties

including the petitioners within 30th December, 2021.

The petitioners shall be at liberty of placing any existing

notification, which may assist the petitioners before the

authority concerned (for the sake of completeness). A

copy of the reasoned order shall be made available to

the petitioners within 4th January, 2022. It is made

clear that the time frames have been provided upon the

suggestion made by learned counsel appearing on

behalf of the parties and it is hence expected that the

petitioners shall not be prejudiced by reason of such

time is framed.

This order is made subject to court fees be put in

by the petitioners by the end of this week.

W.P.A. 17775 of 2021 is disposed of in terms of the

above.

Urgent photostat certified copy of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Moushumi Bhattacharya, J.)