Dr. Manas Kumar Pratihar vs State Of West Bengal & Ors
2022 Latest Caselaw 6696 Cal

19.09.2022
Sl. No. 1&2
S. De
                                 W.P.A. 12664 of 2019
                             Dr. Manas Kumar Pratihar.
                                       -Versus-
                             State of West Bengal & Ors.
                                        with
                                 W.P.A. 9921 of 2018
                               Dr. Arun Chakraborty.
                                       -Versus-
                             State of West Bengal & Ors.

               Mr. Bhaghat Chaudhuri,
               Mr. Dilip Kumar Sadhu,
                          ...for the petitioner in W.P.A. 9921 of 2018
                                & respondent in W.P.A. 12664 of 2019.

Mr. Chitta Priya Ghosh, Mr. Samir Kumar Adhikari, Mr. Kuntal Ray, ...for the petitioner in W.P.A. 12664 of 2019. Mr. Santanu Kumar Mitra, Mr. Mirza Kamruddin, ...for the State in W.P.A. 9921 of 2018. Ms. Sujata Ghosh, Ms. Paromita Pal, ...for the State in W.P.A. 12664 of 2019.

In re : W.P.A. 12664 of 2019 & W.P.A. 9921 of 2018

The petitioner in W.P.A. No. 9921 of 2018 (for short

W.P.A. 1) has challenged the selection process for

appointment of Homoeopathic Medical Officer in Nepura

No.10 Gram Panchayat under Binpur-I Block in terms of

Memo No. 201/J.Swa/17 dated 01.11.2017 issued by the

Secretary, Zilla Parishad, Paschim Medinipur (now

Jhargram Zilla Parishad) and has prayed for issuance of a

fresh notification in terms of the guidelines of 1988 State

Budget Head.

The petitioner in W.P.A. 12664 of 2019 (for short

W.P.A. 2) has prayed for issuance of mandamus to appoint

him in the post of Homoeopathy Medical Officer at the

said gram panchayat.

Since the two writ petitions arise out of the selection

process for appointment of the post of homoeopathy

doctor under the same gram panchayat, with the consent

of parties both the writ petitions are taken up for

analogous hearing as identical questions of law and fact

arises for consideration and are decided by this common

judgment and order.

The writ petitioner in W.P.A. 1 has challenged the

selection process on the ground that the petitioner was not

given preference for possessing the B.H.M.S. degree. The

writ petitioner submitted representations dated 08.06.2018

and 21.06.2018 praying for appointing him to the post of

homoeopathy doctor.

The writ petitioner in W.P.A. 2 claims that he was selected

for appointment to the post of homoeopathy doctor at

Nepura Gram Panchayat under Binpur-I Block and the

Executive Officers of the Panchayat Samity have

forwarded the documents of the petitioner for according

approval to the appointment of the petitioner. The

grievance of the petitioner in W.P.A. No.2 is that he has

not been given appointment to the said post till date.

Mr. Chaudhuri, learned advocate appearing for the

petitioner in W.P.A. 1 contends that the petitioner is

having B.H.M.S. qualification and the writ petitioner in

W.P.A. No. 2 is a diploma holder, and as such the writ

petitioner in W.P.A. No.1 should be given preference for

having the degree in homoeopathy as a degree holder has

to be considered as a candidate possessing higher

qualification than a diploma holder. Mr. Chaudhuri

further submits that the respondent authorities have

changed the Rules after initiation of the selection process

by holding an interview of fifty marks which was not

contemplated in the 1988 guidelines of the State Budget

Head. He thus, submits that the selection of doctor on the

basis of the oral interview is invalid in the eye of law and

the entire selection process is liable to be set aside. In

support of his contention that the selection on the basis of

the oral interview lacks transparency and the entire

selection process is vitiated Mr. Chaudhuri relied upon a

decision of the Hon'ble Supreme Court in the case of

Bishnu Biswas & Ors. Vs. Union of India & Ors. reported

in (2014) 5 Supreme Court Cases 774. He also places

reliance upon an order dated April 7, 2017 in W.P. No.

26826 (W) of 2015 in the case of Md. Mostafa Parhad

Hossain & Ors. Vs. The State of West Bengal & Ors.

wherein the Co-ordinate Bench held that where the terms

and conditions, Rules or norms for selection has been

changed after initiation of the selection process, the entire

selection process is liable to be set aside.

Mr. Mitra, learned advocate appearing for the State

submits that the call letters for viva voce test was issued to

the candidates who were provisionally qualified for the

viva voce test for appointment to the post of homoeopathy

doctor. He further contended that the petitioner in W.P.A.

1 participated in the said viva voce test along with other

candidates called for the said viva voce test and the

petitioner in W.P.A. No.2 having secured the highest

marks in the interview was selected for appointment to the

post of homoeopathy doctor.

Mr. Ghosh, learned advocate representing the writ

petitioner in W.P.A. No.2 contended that the petitioner in

W.P.A. No.1 having participated in the viva voce test is

estopped from challenging the process of selection of

candidates on the basis of such viva voce test. In support

of his contention that a candidate having participated in

the selection process is estopped from challenging the

selection process at the subsequent stage, Mr. Ghosh

placed reliance upon a decision of the Hon'ble Supreme

Court in the case of Dhananjay Malik & Ors. Vs. State of

Uttaranchal & Ors. reported in (2008) 4 Supreme Court

Cases 171.

Heard the learned advocates for the parties and

perused the materials on record. It appears from the

notification dated 23.05.1988 that the requisite qualification

for appointment as a Medical Officer is D.M.S. or

equivalent. It further appears from the notification dated

04.12.2017 that the requisite qualification is DMS or

equivalent.

Mr. Chaudhury could not produce any rule, norm

for giving preference to a degree holder while giving

appointment to the post of Homoeopathy Medical Officer.

The notification dated 23.05.1988 is silent as to giving any

preference to a BHMS degree holder. It further appears

from the record that the concerned Block Development

Officer issued a call letter to the petitioner under Memo

No. 1212 dated May 14, 2018 requesting him to appear for

the viva voce test of fifty marks before the Block Level

Selection Committee and the date of such viva voce test

was fixed on June 7, 2018.

It is not in dispute that the petitioner in W.P.A. No.1

participated in the said viva voce test at the scheduled date

and time without any protest. On the following day i.e. on

08.06.2018, petitioner submitted a representation before the

concerned Block Development Officer contending that

B.H.M.S. or a post graduate qualified candidate should be

given preference while giving appointment to the post of

homoeopathy officer. In the subsequent representation

dated June 21, 2018, the petitioner again prayed for giving

preference to B.H.M.S. or post graduate qualified doctors.

Thus, it is evident that the case of the petitioner in W.P.A.

No.1 in his representations before the authorities was to

give him preference for possessing the B.H.M.S. degree.

The petitioner in W.P.A. No.1 participated in the viva voce

test without any demur and after being successful in the

said test is now challenging the selection process. The

Hon'ble Supreme Court in the case of Dhananjay Malik

(Supra) held that a candidate having unsuccessfully

participated in the process of selection without any demur

are estopped from challenging the selection process. The

Hon'ble Supreme Court held thus -

"it is not disputed that the

respondent-writ petitioners herein

participated in the process of selection

knowing fully well that the educational

qualification was clearly indicated in the

advertisement itself as BPE or graduate

with diploma in Physical Education.

Having unsuccessfully participated in the

process of selection without any demur they

are estopped from challenging the selection

criterion inter alia that the advertisement

and selection with regard to requisite

educational qualifications were contrary to

the Rules.

In Madan Lal V. State of J&K- this

Court pointed out that when the petitioners

appeared at the oral interview conducted by

the members concerned of the Commission

who interviewed the petitioners as well as

the contesting respondents concerned, the

petitioners took a chance to get themselves

selected at the said oral interview.

Therefore, only because they did not find

themselves to have emerged successful as a

result of their combined performance both at

written test and oral interview, they have

filed writ petitions. This Court further

pointed out that if a candidate takes a

calculated chance and appears at the

interview, then, only because the result of

the interview is not palatable to him, he

cannot turn round and subsequently

contend that the process of interview was

unfair or the Selection Committee was not

properly constituted.

In the present case, as already pointed

out, the respondent-writ petitioners herein

participated in the selection process without

any demur; they are estopped from

complaining that the selection process was

not in accordance with the Rules. If they

think that the advertisement and selection

process were not in accordance with the

Rules they could have challenged the

advertisement and selection process without

participating in the selection process. This

has not been done."

This Court, therefore, holds that the petitioner in

W.P.A. No.1 having participated in the viva voce test

without any demur is estopped from complaining that the

selection process was not held in accordance with the

Rules.

The decision of the Co-ordinate Bench in the case of

Md. Mostafa Parhad Hossain (Supra) is not applicable to

the case on hand as in that case the negative marking

system as contemplated in the selection process was not

followed and instead of marking the papers by OMR

machines, the papers were physically checked. After

taking note of such factual scenario, the Co-ordinate Bench

was pleased to set aside the selection process in the case of

Md. Mostafa Parhad Hossain (Supra).

In Bishnu Biswas (Supra), the Hon'ble Supreme

Court took note of the fact that the High Court after

considering several issues recorded a finding of fact that

awarding of marks in the oral interview indicated lack of

transparency in the matter. On the basis of such factual

finding, the Hon'ble Supreme Court was pleased to hold

that the selection of candidates on the basis of marks

awarded in the interview was arbitrary and is liable to be

struck down. The said decision also has no manner of the

application to the case on hand.

It is not in dispute that the writ petitioner in W.P.A.

No. 2 secured more marks than the petitioner in W.P.A.

No. 1 in the viva voce test and he has been selected for

appointment. Since the papers relating to the appointment

of the petitioner in W.P.A. No.2 has been forwarded to the

Secretary for granting approval for appointment, the

Secretary, Paschim Medinipur Zilla Parishad (now

Jhargram Zilla Parishad) being the respondent no.5 herein

is directed to issue necessary approval and thereafter the

respondent authorities shall issue appointment letter to the

petitioner. The entire exercise shall be completed as

expeditiously as possible but positively within a period of

twenty one working days from the date of communication

of this order.

With the above observations, W.P.A. 12664 of 2019

and W.P.A. 9921 of 2018 are, accordingly, disposed of.

There shall be however no order as to costs.

Urgent photostat copy of this order, if applied for,

be given to the parties after observing necessary

formalities.

(Hiranmay Bhattacharyya, J.)