Calcutta High Court (Appellete Side)
Smt. Madhuri Maji vs The State Of West Bengal & Ors on 16 August, 2023
16.08.2023 IN THE HIGH COURT AT CALCUTTA
DL-14 CONSTITUTIONAL WRIT JURISDICTION
(PP) APPELLATE SIDE
WPA 16568 of 2023
Smt. Madhuri Maji
Vs.
The State of West Bengal & Ors.
Mr. Saibal Acharyya,
Mr. Sujit Bhunia
...for the petitioner.
Mr. Arjun Ray Mukherjee,
Ms. Tuli Sinha
....for the State.
Mr. Siddhartha Sarkar
....for the respondent no.12.
The petitioner participated for engagement as an
Accredited Social Health Activist (ASHA)/Karmee
pursuant to an advertisement dated March 21, 2022.
The said advertisement relied on a notification dated
December 3, 2021 regarding that Scheduled
Caste/Scheduled Tribe candidates being given priority
for engagement. In the event such candidates were
not available then general candidates could be
considered for engagement.
It is the grievance of the petitioner that the post
for engagement of ASHA Karmee for Block - Keshpur,
Gram Panchayat - Sarishakhola, Sub-Centre - Digha,
village - Adamchak, Dogerya, Akna was to be filled up
by an Unreserved category candidate. However,
despite the said vacancy being advertised for
Unreserved category, the private respondent no.12
even though a reserved category candidate, was
engaged as an ASHA Karmee against the said
vacancy.
Mr. Acharyya, learned counsel appears on behalf
of the petitioner.
Mr. Ray Mukherjee, learned counsel appears on
behalf of the State respondents.
Mr. Sarkar, learned counsel appears on behalf of
the private respondent no.12.
Mr. Acharyya draws the attention of this Court
to the impugned memo dated March 6, 2023 issued
by the Additional Mission Director, National Health
Mission (NHM) & Special Secretary, Health & Family
Welfare Department, Government of West Bengal.
The Additional Mission Director held that pursuant to
several judgments of the Supreme Court and also
Niravkumar Dilipbhai Makwana vs. Gujarat Public
Service Commission & Ors. reported in 2019 (6)
Supreme 254, it has been clarified that the State
Government has a discretion to formulate a policy for
concession, exemption, preference or relaxation either
conditionally or unconditionally in favour of the
backward classes. The State Government is within its
authority to relax the criteria for engagement for
reserved category candidates in order to bring them
within the zone of consideration.
Considering the submissions of the parties and
the materials placed on record, this Court directs the
respondent no.3 or any other authority delegated by
him to file a Report-on-Affidavit stating why the ratio
of Niravkumar (supra) was not taken into
consideration while issuing the clarificatory memo
dated March 6, 2023.
It has been specifically held in that case by the
Apex Court that a candidate who availed of age
relaxation in a selection process as a result of
belonging to a reserved category, cannot, thereafter
seek to be accommodated in or be migrated as a
general category candidate.
How the ratio of the said judgment has been
taken into consideration by the Additional Mission
Director, NHM, has to be clarified in the said Report.
Let such Report-on-Affidavit be filed by
September 8, 2023.
Exception, if any, by September 22, 2023.
Let the matter appear for further consideration
under the same heading "Motion" on September 25,
2023.
All parties shall act on the server copy of this
order duly downloaded from the official website of this
Hon'ble Court.
(Lapita Banerji, J.)
