Calcutta High Court (Appellete Side)
Pabitramayee Majhi vs The State Of West Bengal And Others on 25 August, 2022
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
The Hon'ble Justice Subrata Talukdar
&
The Hon'ble Justice Lapita Banerji
MAT 1380 of 2021
With
IA No. CAN 1 of 2021
Pabitramayee Majhi
Vs.
The State of West Bengal and others
For the Appellant : Mr. Kashiswar Ghosal
For the State-Respondents : Mr. Susanta Pal
Ms. Ananya Neogi
Heard on : 25/07/2022
Judgment on : 25/08/2022
Lapita Banerji, J:- This appeal and application arises out of an Order
passed by an Hon'ble Single Judge of this High Court on December 17,
2021 (Impugned Order). By the Impugned Order the Hon'ble Single Judge
dismissed the Writ Petition, thereby, rejecting the writ petitioner's prayer
for setting aside/recalling of a Memo dated February 26, 2020 passed by
the respondent No.4 rejecting the writ petitioner's application for being
selected as an Accredited Social Health Activist (in short "ASHA") Karmee.
2. Pursuant to a Notice for Engagement/Advertisement dated July 18, 2018
vide Memo No.721/SDO/S/PRL, the list of vacancies that arose in five
blocks of Purulia Sadar was advertised. The list showing vacancy status
of ASHA Karmee was attached to the said advertisement. The writ
petitioner/appellant applied pursuant to the same for being appointed as
an ASHA for sub centre Polpol, village-Tilaitar. The appellant /writ
petitioner was a resident of village Chakadabad.
3. The second clause of the eligibility criteria in the advertisement stipulated
that an ASHA Karmee "should be a permanent resident of the same area
under the health sub-centre for which she is applying".
4. The writ petitioner's grievance was that she did not get any response to
the said application. Hence, she made an application under Right to
Information Act on February 19, 2020.
5. The State Public Information Officer, Arsha Development Block intimated
to the writ petitioner vide Memo No.416/AB dated March 5, 2020 that the
call letter for interview was not sent to the writ petitioner since the
vacancy was only for the residents of Tilaitar and she was not a resident of
the said village. The said response was based on the information given by
the Sub-Divisional Officer, Purulia/respondent No.4 vide Memo
No.171/SDO/S/PRL dated February 26, 2020, whereby, the respondent
No.4 being the officer concerned, rejected the application of the writ
petitioner as she did not "apply from the same village of the Sub-Centre
where she resides". The said Memo dated February 26, 2020 was
impugned by the writ petitioner in W.P.A. No.6190 of 2021.
6. Mr. Ghosal appearing for the writ petitioner/appellant argued that in
the advertisement the eligibility criteria was stipulated as that the "ASHA
Karmee had to be a permanent resident of the same area" under the
Health Sub-Centre. There was no requirement for her to be a permanent
resident of the same village". The said requirement of the candidate
belonging to the "same village" was in the nature of an afterthought and
contrary to the advertisement dated July 18, 2018.
7. He further submits, Under Clause No.5 of the General Conditions of the
advertisement at the Sub-Divisional level the ASHA Selection Committee
had the right to cancel part or whole of any process of engagement
including the provisions/clauses of the Notice or advertisement.
Therefore, at a sub-divisional level it was thought and decided that the
eligibility of the ASHA Karmee would require the candidate to reside in the
"same area" under the Health Sub-Centre and not the "same village".
8. Mr. Ghosal relied on a document dated February 15, 2021 issued by the
Pradhan, Arsha Gram Panchayat to show that both the villages of
Chakadabad and Tilaitar were under the Sub-Centre Polpol and the writ
petitioner was entitled to be considered for the post of ASHA even though
she resided at Chakadabad village and the vacancy arose for the village of
Tilaitar.
9. Mr. Pal appearing for the State argued that the revised guidelines for
selection of ASHAs vide Memo No. HFW/NRHM-20/2006/Part-II/1631
dated June 27, 2012 issued by the Government of West Bengal, Health
and Family Welfare Department, National Rural Health Mission, clearly
stipulated that a candidate "should be a resident of the same village for
which she will be selected" as per clause 2 of the eligibility criteria.
10. Therefore, any advertisement/notice of engagement was to be read
keeping in mind the aforesaid guidelines and not in derogation of the
same.
11. The Hon'ble Single Bench came to the finding that upon scrutiny of the
petitioner's application, the B.D.O./respondent No.5 came to the finding
that the writ petitioner was not entitled to be considered for the post of
ASHA against Polpol Sub-Centre, Village Tilaitar. The B.D.O. was the
competent authority to decide the same and the certificate of Panchayat
Pradhan could not be given precedence over the B.D.O.'s decision.
Therefore, the Writ Petition was dismissed.
12. When the appeal and application came up for hearing, this Court called
for the original records to be produced by the B.D.O. and thereafter also
directed a report to be filed by both the respondent No.4/Sub-Divisional
Officer as well as the respondent No.5/B.D.O. This court was informed
that a panel of 20 candidates suitable for the post of ASHA was prepared
on February 16, 2022. An interim Order directing maintenance of "status
quo" as on March 8, 2022 was also passed.
13. Pursuant to and in compliance of the Orders passed by this Court,
reports have been filed by both the respondent Nos.4 and 5 and
exceptions thereto have been taken by the writ petitioner/appellant.
14. After considering the rival submissions of the parties and the materials
placed on record, this Court finds:-
(i) The Notice of the Engagement dated July 18, 2018, pursuant to which
the writ petitioner/appellant applied for being engaged as an ASHA
Karmee, contained a vacancy list. The vacancy list indicated Sub-Centre
wise names of the villages in which the vacancies arose for the post of
ASHA. Therefore, the writ petitioner was aware of the fact that the
engagements would be made in respect of such villages in which the
vacancies arose at the time of the application. The admitted fact in
relation to the vacancy status appears from page 34 of the stay petition
being CAN 1 of 2021.
(ii) The Chief Medical Officer of Health, Purulia unequivocally interpreted and
relied on the guidelines issued on June 27, 2012 by the Government of
West Bengal which stated that the candidate has to be a resident of the
"same village" for which she would be selected. The names of the villages
were clearly notified in the advertisement and there was no way that the
writ petitioner/appellant was misled by the same.
(iii) From the page 2 of the report filed by the respondent No.4, it would clearly
appear that all the 20 candidates approved for selection as "ASHA"
Karmee in the ARSHA Block, by the Joint Secretary, Health and Family
Welfare Department, Government of West Bengal vide Memo No. HFW-
27011/216/2018-NHM SEC-Dept of H&FW/552 dated February 16, 2022
were residents of the same village, Vis-à-vis- the villages advertised. The
EPIC/RC of the candidates which were enclosed evidence the same.
(iv) The argument that there was a foul play in the selection of the candidates
and the documents being manufactured or produced by way of an
afterthought is untenable, given the production of the aforesaid records.
(v) On comparison of the panel selected vide Memo dated February 16, 2022
with the synoptic report on the status of the residence of the 20 selected
candidates of ASHA for Arsha Block, it would unequivocally appear that
the panel has been drawn up keeping in mind the vacancy status of the
ASHA Karmees appearing at page 34 of the stay application being an
Annexure to the Notice/Advertisement dated July 18, 2018. All the
candidates resided in the same villages where the vacancies arose. Hence,
no illegality or material irregularity or procedural impropriety can be
inferred on the facts of the case.
(vi) Assuming though not admitting the argument of the appellant that the
respondent No.4 had the right to cancel, part or whole of the process of
engagement including provisions/clauses of the notice, the respondent
No.4 did not exercise that power and relied on the guidelines of June 27,
2012 and followed the same. Therefore, the second clause of the eligibility
criteria contained in the advertisement dated July 18, 2018 has to be read
in conjunction with the Second Clause of the eligibility criteria contained
in the circular/guidelines issued on June 27, 2012 by the Government of
West Bengal, to give it a purposive meaning.
(vii) The eligibility criteria in the advertisement dated July 18, 2018 cannot be
read in derogation or supersession of the guidelines issued on June 27,
2012.
15. In the light of the discussions above, this Court upholds the Order passed
by the Hon'ble Single Bench dated December 17, 2021 in W.P.A. No. 6190
of 2021. Accordingly, the appeal being MAT No. 1380 of 2021 along with
CAN 1 of 2021 be dismissed, without any order as to costs.
16. Parties shall be entitled to act on the basis of a server copy of the order
placed on the official website of the Court.
17. Urgent Xerox certified photocopies of this judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
I agree.
(Subrata Talukdar, J.) (Lapita Banerji, J.)
