Calcutta High Court (Appellete Side)
Dr. Jagajjiban Datta vs The State Of West Bengal & Others on 22 February, 2023
22.02.2023
Item No.2
Court No.6.
AB
M.A.T. 2031 of 2016
With
I A CAN 1 of 2022
Dr. Jagajjiban Datta
Vs
The State of West Bengal & Others
Mr. Debasish Saha,
Mr. Moniruzzaman ...for the Appellant.
Mr. Susovan Sengupta,
Mr. Subir Pal ...for the State.
Mr. Sakya Sen, Sr. Adv,
Mr. Sunil Gupta,
Mr. Hasibul Islam .....for the Murshidabad
Zilla Parishad.
By consent of the parties, the appeal and the
application are taken up for hearing together.
Affidavit-in-opposition on behalf of the
respondent no.10 and the appellant's affidavit-in-reply
thereto filed in Court today be kept with the records.
A judgment and order dated August 23, 2016,
whereby the appellant's writ petition was dismissed, is
the subject matter of challenge in this appeal.
The grievance ventilated by the appellant/writ
petitioner before the learned Single Judge was that he
was selected as Homeopathic Doctor of Khargram
Panchayat Samity for the free medical clinic at
Margram Gram Panchayat. The Murshidabad Zilla
Parishad had recommended the name of the appellant
to the concerned Government Department for
approval. However, the Additional Executive Officer of
the Zilla Parishad, being the respondent no.10 in the
writ petition, by a letter dated December 12, 2014,
debarred the writ petitioner from acting as
Homeopathic Doctor. This letter was challenged before
the learned Single Judge.
It was submitted before the learned Single Judge
on behalf of the State that the Government had
sanctioned only 70 units where Homeopathic Doctors
and Homeopathic Compounders would be appointed.
Margram Gram Panchayat was not one of the 70
sanctioned Panchayats. Hence, the writ petitioner
could not be appointed. The respondent no.10, acting
on behalf of the Zilla Parishad, clarified before the
learned Judge that if any Gram Panchayet takes any
decision on its own to engage the writ petitioner, then
that Panchayet will have to bear the entire financial
liability and not the Government.
The learned Judge dismissed the writ petition
with the following observations:
"Regard being had to the contention of the petitioner
and the context in such order has been passed this is the
only reasonable and rational approach that could be taken
as the concerned gram panchayat does not come within the
number of approved panchayat dispensaries. The circular
sought to be relied upon the petitioner which has been
annexed to the writ petition as annexure P-2 has no
application inasmuch as the reason for which the
petitioner's liability has been disowned by the respondent
no.10 has nothing to do with any theoretical circular issued
in the year 1988. The reason for not considering the
Margram Gram Panchayat has been very specifically
clarified in the impugned order and therefore the
notification of May 23, 1988 about the allotment of fund
etc. is immaterial.
I find no impropriety or lack of logic in the
communication made by the respondent no.10.
However, if the concerned panchayat samity or the
panchayat who bears the expenses for running the free
Homeopathic Medical Clinic engage the petitioner that is a
separate matter."
Being aggrieved, the writ petitioner is before us
by way of this appeal.
Appearing for the appellant/writ petitioner, Mr.
Saha, learned Advocate submitted that the
recruitment process was initiated in the year 2007.
Any subsequent circular including circular dated
August 26, 2009 would not have any bearing on such
recruitment process. He further submitted that the
matter is now pending before the concerned
Department of the State Government. The Zilla
Parishad has approved the name of the appellant and
has recommended the appellant's name to the
Government. The Government is yet to take a decision
in the matter. He further says, on instructions, that
posts are vacant where the appellant can be
accommodated.
The submission made on behalf of the appellant
is strongly disputed by learned Advocates appearing
for the Zilla Parishad and the State. Learned Advocate
for the Zilla Parishad has drawn our attention to a
Government Notification dated May 23, 1988,
paragraph 3 whereof makes it clear that the Jana
Swasthya Sthayee Samity of the Zilla Parishad will
administer the proposal received from different
panchayet samities with due regard to the quota of
new dispensaries for the district communicated to the
Zilla Parishad by the Department of Health & Family
Welfare. Learned Advocate says that the Zilla Parishad
has to act within the number of dispensaries
prescribed by the Government. Margram not being one
of the prescribed or sanctioned panchayets, the
appellant's case cannot be favourably considered.
Learned Advocate for the State says that his
instruction is that no approval has yet been granted by
the concerned Department of the State Government for
appointment of the appellant.
Having considered the rival contentions of the
parties, we are of the considered opinion that there is
no apparent infirmity in the order under appeal. We
have also considered the letter dated December 12,
2014, written by the Additional Executive Officer of the
Murshidabad Zilla Parishad, which was under
challenge before the learned Single Judge. In our view,
the learned Judge has rightly held that the said
communication is well reasoned and contains a logical
decision. We see no reason to interfere with the order
under appeal.
M.A.T. No.2031 of 2016 is, accordingly,
dismissed along with IA CAN 1 of 2022 without any
order as to costs.
However, this order will not in any manner
prelude the State Government to accord approval for
appointment of the appellant if the Government so
decides.
Urgent photostat certified copy of this order, if
applied for, be supplied expeditiously after compliance
with all the necessary formalities.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)
