Calcutta High Court (Appellete Side)
(Ad) vs State Of West Bengal & Ors on 24 August, 2023
DL-6 wt 7
WP.ST 225 of 2009
24.08.2023
Court No.5 Dr. Md. Hasem Ali
(AD) Vs.
State of West Bengal & Ors.
With
WP.ST 226 of 2009
Dr. Md. Hasem Ali
Vs.
State of West Bengal & Ors.
Mr. Swapan Kumar Nandi
Mr. Debjyoti Ghosh
... for the petitioner in both the writ petitions.
Mr. Tapan Kumar Mukherjee,
Ld. Sr. Advocate & Ld. AGP
Mr. Somnath Naskar
...for the State-respondents in WP.ST 225 of 2009.
Mr. Arjun Roy Mukherjee
Ms. Tuli Sinha
... for the State-respondents in WP.ST 226 of 2009.
The two writ petitions are taken up together for
analogous hearing as they emanate out of the same
judgment and order passed in two original proceedings.
The writ petitions are directed against an order
dated September 19, 2008 passed in two original
applications being OA-540 of 2002 and OA-542 of 2002
instituted by the writ petitioner.
By the impugned order, the Tribunal allowed the
applications in part.
The Tribunal took into considerations the prayers
made in the two applications. The Tribunal found that,
prayers 7(a) and 7(b) of OA-542 of 2002 cannot be
granted since, the Tribunal found no ground to interfere
with the impugned notification dated February 19, 2002.
In respect of prayers 7(c) of OA-542 of 2002, the
Tribunal directed the State to consider the payment of
arrear salary, if any, including leave salary as sanctioned
if not already paid keeping into view the decision of the
Tribunal.
The Tribunal thereafter considered prayer 7(a) of
the OA-542 of 2002 and returned a finding that, such
prayer does not make any sense as ROPA, 1998 was
given effect from January 1, 1996 and thereafter
question of fixation of pay under ROPA, 1998 from
September, 1991 did not arise. The Tribunal held that,
the matter of fixation under ROPA, 1998 may be
considered by the authorities if admissible in terms of
the applicable rules and procedures.
Learned Advocate appearing for the petitioner
draws the attention of the Court to the facts of the case.
He submits that, the writ petitioner was transferred to a
post where he could not join due to his medical
condition and conditions in his family. He made several
representations. He approached the Tribunal. Tribunal
directed disposal of the representation by a speaking
order. He refers to the speaking order where relief was
granted to the petitioner. He thereafter refers to the
notifications issued by the Government for joining
including his joining the post. He also refers to the
notification dated February 19, 2002.
The writ petitioner initially joined West Bengal
Health Services on July 19, 1976. His service was
regularized by the Public Service Commission with effect
from July 1, 1977. He initially joined as a Medical
Officer, Bakulia Public Health Centre, Hooghly. Since
January 5, 1981, he was working as G.D.M.O. at
Imambara Sadar Hospital, Hooghly. The writ petitioner
made a representation dated December 30, 1989
informing the authorities that due to his family affairs he
was unable to accept any administrative post. The
applicant was transferred to Cooch Behar as
A.C.M.O.H.-II by a notification dated May 10, 1991 and
by an order dated August 7, 1991 of the D.H.S., the writ
petitioner was deemed to be released from his existing
post with effect from August 19, 1991. He was, however,
actually released in the afternoon of September 10,
1991. Thereafter, the writ petitioner made several
representations. The representation was ultimately
directed to be considered by the Tribunal.
The speaking order dated August 27, 1999 was
passed by the Director of Health Services where, Director
of Health Services opined that the writ petitioner
deserves sympathy due to his ailments and as he was
suffering from medical condition.
State authorities thereafter issued a notification
dated December 15, 1999 posting the writ petitioner as
M.O., Kalna Sub-Divisional Hospital, Burdwan with
effect from the date on which he joins the post. Such
notification cancelled the earlier notification dated May
10, 1991. Writ petitioner joined the post of M.O., Kalna
by the memo dated January 27, 2000.
By a writing dated November 6, 2000, the writ
petitioner made a representation with regard to the non-
payment of nine years of arrear salary with benefit.
By a letter dated August 2, 2001 the Joint Director
of Health Services (Admn-I) issued directions with regard
to the payment of salary to the writ petitioner as per
revised scale under ROPA, 1998.
State authorities issued a notification dated
February 19, 2002 treating the period of absence of five
years of the writ petitioner in the manner as stipulated
therein.
The writ petitioner was unable to establish any
ground for interference with the writing dated February
19, 2002. His period of absence from September 11,
1991 and till September 8, 1996 was required to be
treated in a particular way which the authorities did by
the writing dated February 19, 2002. The writ petitioner
is unable to establish that such treatment was not in
consonance with law. The Tribunal also arrived at such
a finding in the impugned order. So far as the other
representations are concerned, the Tribunal granted
such of them as was permissible in law.
In such circumstances, we find no reason to
interfere with the impugned order.
WP.ST 225 of 2009 and WP.ST 226 of 2009 are
dismissed without any order as to costs.
(Debangsu Basak, J.)
(Md. Shabbar Rashidi, J.)
