Dr. Subir Kumar Ghosh vs Atin Mishra & Ors
2022 Latest Caselaw 1691 Cal

S/L 3-5
31.03.2022
Court No.6
SD
                              FMA 327 of 2020
                                   With
                               CAN 3 of 2018
                           (Old CAN 5281 of 2018)
                              Dr. Subir Kumar Ghosh
                                        Vs.
                                Atin Mishra & Ors.

                                         With
                               FMA 3163 of 2015
                           State of West Bengal & Anr.
                                       Vs.
                                 Dr. Atin Mishra

                                         With
                             FMA 3539 of 2013
                                   With
                                CAN 4 of 2017
                           (Old CAN 9284 of 2017)

                               Bikash Kumar Das
                                       Vs.
                           State of West Bengal & Ors.
             Mr. Bhagwat Chowdhury
             Mr. Sariful Islam Mallick
                                                      ... for the Appellant.
                                                        (in FMA 327 of 2020)
             Mr. Atarup Banerjee
             Mr. Samit Bhanja
                                                     ... for the Appellant.
                                                     (in FMA 3539 of 2013)
             Mr. Biswarup Biswas
             Mr. Md. Mojnu Sk.
                               ... for the Respondents/Writ Petitioners.

Mr. Raja Saha Mr. Biswabrata Basu Mullick Mr. Sayan Ganguly ... for the State.

Mr. Uttiya Ray ... for the Zilla Parishad.

These three appeals can be disposed of by this

common judgment.

The disputes in all three appeals relate to appointment

to a post of Ayush in Nandai Gram Panchayat, Kalna-I Block,

East Burdwan.

One of the prospective candidates for the said post,

namely Atin Mishra claimed to be the successful candidate in

the selection process. He approached this Court alleging that

the concerned authority had withheld his appointment

illegally. His writ petition was allowed directing the relevant

authorities to issue an appointment letter in his favour.

The order of the learned Single Judge passed in the

said writ petition was carried in appeal by the State. The

other two aspirants for the said post, namely Subir Kumar

Ghosh and Bikash Kumar Das sought to intervene in the said

appeal by filing applications. The said appeal preferred by

the State was dismissed for default. As a consequence

thereof, the applications filed by Subir Kumar Ghosh and

Bikash Kumar Das were also dismissed.

Thereafter, Subir Kumar Ghosh preferred an appeal

being F.M.A. No. 327 of 2020 with an application for leave to

appeal against the same order whereby Atin Mishra was

directed to be appointed. Subir Kumar Ghosh also filed a

writ petition challenging the selection process.

It appears that Bikash Kumar Das approached the

learned Single Judge with a prayer that he should be

permitted to participate in the selection process condoning

his age bar. The learned Single Judge permitted him to

participate in the selection proceeding condoning the age

bar. Bikash Kumar Das accordingly participated in the

selection process but was not successful. Subsequently,

Bikash Kumar Das has preferred an appeal being FMA 3539

of 2013 quite interestingly, against the order whereby he was

permitted to participate in the selection process.

Bikash Kumar Das, admittedly, has been working in

the post in question on the strength of an order passed by a

Coordinate Bench.

In order to resolve the dispute finally without going

into any other aspect of the matter, we sought to ascertain

who is the eligible candidate for the appointment to the post

in question. It appears that controversy in these three

appeals zeroed in on the domiciles of the respective

candidates. According to Clause 5 of the relevant notification

for recruitment dated March 29, 2010, a candidate for the

post in question has to be domiciled in the relevant Gram

Panchayat, and if no candidate is available from the said

Gram Panchayat then the availability should be ascertained

from the concerned Block.

We asked all three aspirants before us to produce

documents to show their domiciles in terms of the

advertisement published for the post in question.

Accordingly, parties have produced documents in support of

their domiciles. It appears that none of the candidates is a

resident of the Nandai Gram Panchayat. Bikash Kumar Das

and Subir Kumar Ghosh, however, appear to be residents of

Kalna-I Block while Atin Mishra is a resident of the

concerned Municipality. Therefore, Atin Mishra does not

qualify for the post on the ground of his domicile whereas the

other two candidates, namely Subir Kumar Ghosh and

Bikash Kumar Das come within the zone of consideration.

That being the position, the appointment in question

should go to the candidate who has scored the highest marks

in the selection process. The respective marks of Bikash

Kumar Das and Subir Kumar Ghosh are 57.65 and 58.17.

Therefore, we hold that Subir Kumar Ghosh should be

appointed to the post in question.

In view of the aforesaid, appeals being F.M.A. No.327

of 2020 along with CAN 3 of 2018 (Old No. CAN 5281 of

2018), F.M.A. No.3163 of 2015 and F.M.A. No.3539 of 2013

along with CAN 4 of 2017 (Old No. CAN 9284 of 2017) are

disposed of with a direction upon the Chief Medical Officer of

Health, Burdwan, and the Pradhan of Nandai Gram

Panchayat to take necessary steps for appointing Subir

Kumar Ghosh to the post in question within a period of four

weeks from the date of communication of this order.

Urgent photostat certified copy of this order, if applied

for, be given to the parties upon compliance with all the

necessary formalities.

(Kausik Chanda,J.) (Arijit Banerjee, J.)