Raseda Begum vs The State Of West Bengal & Others
2022 Latest Caselaw 4942 Cal

01.08.2022
Item No. 12.
Court No.6.
   AB
                                  M.A.T. 996 of 2022
                                         With
                                  I A CAN 1 of 2022

                                    Raseda Begum
                                         Vs
                          The State of West Bengal & Others

                     Mr. Robiul Islam,
                     Mr. S. A. Munshi,
                     Ms. Firoja Khatun          ...for the Appellant.

                     Mr. Jahar Lal De,
                     Mr. Bipin Ghosh            ...for the State.



                     By consent of the parties, the appeal and the

               application are taken up for hearing together.

                     This appeal is directed against a judgment and

               order dated June 15, 2022, whereby WPA No.9687 of

               2022 filed by the present appellant was disposed of.

               The operative portion of the impugned order reads as

               follows:

                             "The Block Medical Officer of Health and the Block
                     Development Officer, Domkal Development Block have
                     expressed their inability to provide engagement to the
                     petitioner, as the residential area of the petitioner is not
                     within the jurisdiction of the Health Sub-centre where the
                     ASHA worker is to be appointed.
                             It appears from the documents annexed to the writ
                     petition that the petitioner stood second in the panel in
                     respect of the village Khidirpara. Village Khidirpara has not
                     been advertised in the notification that has been published
                     for engagement of ASHA worker.
                             Accordingly, at this stage no relief can be granted to
                     the petitioner in the instant writ petition.   As and when
                     vacancy is declared within the residential area of the
                     petitioner, the respondent authorities shall take necessary

steps for accommodating the petitioner strictly in terms of the order passed by the Court on September 17, 2009 in WPA 15753 of 2009 and the order of the District Magistrate, Murshidabad dated May 24, 2010."

The appellant/writ petitioner had initially

approached this Court by filing WPA No.15753 of 2009

challenging the legality and/or validity of a panel

prepared by the Administration pertaining to

engagement of candidates in the posts of ASHA

workers. According to the writ petitioner, the private

respondent in that writ petition did not have the

requisite qualification and she was wrongly included in

the panel. That writ petition was disposed of by an

order dated September 17, 2009, the operative portion

whereof reads as follows:

"When the selection process was started, the private respondent did not have the qualification but the writ petitioner had the qualification as noted above. Now the private respondent has attained the age qualification.

In that view of the matter, the Court has some sympathy for the writ petitioner and disposes of this writ application by directing the respondent no.3 to consider the case of the writ petitioner for being employed as ASHA staff sympathetically, without dislodging the panel which is Annexure-P3 of the writ petition, as an additional appointment, if possible, or in the future."

Subsequently, an order was passed by the

District Magistrate, Murshidabad, who referred the

matter to the Block Level Selection Committee to find

out whether there was scope for engagement of the

writ petitioner "at present or in the future".

The writ petitioner's name was empanelled in

the second position in the Khidirpara village under

Katakopara Sub-centre.

The present writ petition was filed by the

appellant challenging a Notification for initiation of the

process of engagement of ASHA workers at Health

Sub-centre, Katakopara. The learned Judge recorded

that village Khidirpara has not been advertised in the

said Notification. It is not in dispute that the writ

petitioner resides within the territorial limits of

Khidirpara. Accordingly, the learned Judge passed the

order impugned directing that as soon as vacancy

arises in Khidirpara, the case of the writ petitioner

shall be considered strictly in accordance with the

order dated September 17, 2009, passed in the earlier

writ petition.

Being aggrieved, the writ petitioner is before us

by way of this appeal.

Learned Advocate appearing for the appellant

says that the Administration will never create vacancy

within the territorial limits of Khidirpara. The law

requires that there should be at least one ASHA

worker for every 1000 persons. According to learned

Advocate, Khidirpara has about 6000 people. Hence,

there should be at least 6 ASHA workers for

Khidirpara. Presently, there is only one ASHA worker,

who was selected in 2009.

Mr. De, learned Senior Counsel representing the

State-respondents disputes the factual submissions

made on behalf of the appellant as regards the

population number in Khidirpara village. He further

disputes the proposition that there should be one

ASHA worker per 1000 persons. He says that these are

policy decisions of the Government. However, the State

Administration shall definitely comply with all legal

requirements as may be mandated by the relevant

Statutes or Rules framed thereunder. If the law so

mandates, post for ASHA worker will be created in

Khidirpara and the case of the appellant will be duly

considered in terms of the earlier order of this Court.

In view of such fair stand taken on behalf of the

State and since we do not find any apparent infirmity

in the order under appeal, we dispose of the appeal by

observing that this being a welfare State, we trust and

hope that the State Administration shall act fairly and

consider the case of the appellant in accordance with

law and with some sympathy.

Since we have not called for affidavits, the

allegations in the stay application are deemed not to

be admitted by the respondents.

MAT No.996 of 2022 stands disposed of along

with IA CAN 1 of 2022.

Urgent photostat certified copy of this order, if

applied for, be supplied expeditiously after compliance

with all the necessary formalities.

(Rai Chattopadhyay, J.) (Arijit Banerjee, J.)