Calcutta High Court (Appellete Side)
Musibor Rahaman Molla vs State Of West Bengal & Ors on 31 March, 2023
83.
31.3.2023
S.D.
W.P.A. 17772 of 2018
With
CAN 1 of 2023
Musibor Rahaman Molla
Vs.
State of West Bengal & Ors.
Mr. Atarup Banerjee
Mr. Rajdeep Pramanik
Mr. S. Nandy
... For the Petitioner
Mr. Avishek Prasad
...For the State
In re: CAN 1 of 2023
This is an application for reinstatement of the petitioner
to the position of Senior Treatment Supervisor and for
disbursement of his arrears of salaries pursuant to an order
passed by a Coordinate Bench on July 10, 2019 in W.P. No.
17777 (W) of 2018 (Mamun Shaikh Vs. State of West Bengal &
Ors.). The petitioner claims to be one of the eight candidates
who were working as Senior Treatment Supervisors (STS)
and whose services have been terminated by the Impugned
order dated August 17, 2018. The petitioner prays for setting
aside and/or quashing of the Impugned order in the present
writ petition being W.P.A. 17772 of 2018. The Impugned
2
order was preceded by a show-cause notice dated July 18,
2018.
The petitioner applied for the post of STS pursuant to
an advertisement dated December 29, 2015 issued by the
Secretary and Chief Medical Office of Health, District Health
and Family Welfare Samity. The relevant eligibility criteria
was that the petitioner was required to have a Bachelor
Degree OR Recognized Sanitary Inspector's Course. The
petitioner's service was terminated from August 2018 on the
ground that the petitioner failed to comply with the
minimum essential educational qualification. Since the
diploma in Sanitary Inspector's Course was purportedly from
an unrecognized institution, the petitioner was held not to
have essential qualification for the post of STS.
It is also the case of the State that since the petitioner
obtained less than 50% marks in the Bachelor Degree, the said
qualification does not fall within the eligibility criteria even
though the Bachelor Degree has been obtained from a
recognized institute.
The Hon'ble Coordinate Bench by its judgment and
order dated July 10, 2019 held that since the advertisement
did not clearly stipulate that the Sanitary Inspector's Course
had to be from a recognized University or a minimum of 50%
3
was required to fulfil the essential conditions of eligibility, the
said conditions could not be later introduced. The
Coordinate Bench held that the eligibility criteria of the
Bachelors Degree had to be read disjunctively with the
eligibility criteria for diploma in the Recognized Sanitary
Inspector's Course. It held that the condition OR cannot be
read as AND/OR and if such a course was allowed that
would lead to an amendment of material nature of the
advertisement/representation made to the public. Therefore,
the Impugned order was quashed and/or set aside and the
petitioner in W.P. 17777 (W) of 2018 was directed to be
reinstated immediately.
A review application being R.V.W. 111 of 2021 was
preferred by the State belatedly without any valid
explanation as to the cause of delay. The said review
application was dismissed by this Court by a judgment and
order dated December 21, 2022.
Therefore, the order dated July 19, 2019 has attained
finality since no appeal has been admittedly preferred from
the said order.
Mr. Banerjee, learned counsel appearing on behalf of
the petitioner submits that not only have the State
respondents sought to alter the terms of the advertisement by
seeking to interpret the word or as and/or, but the State
respondents had already made up their mind to terminate the
petitioner from service by a resolution dated May 24, 2018
prior to the issuance of the show-cause notice dated July 18,
2018. The bias and/or arbitrariness of the State's
action/conduct is apparent from the said course of action.
Therefore, he prays for setting aside of the impugned order
dated August 17, 2018.
Mr. Prasad, learned counsel appears on behalf of the
State authorities.
He submits that the terms of the advertisement have
not been complied with. He further submits that the Terms
of Reference (TOR) issued by the competent authority or the
District Recruitment Committee were to be applicable for a
particular course. Such was stated in the advertisement.
Having considered the rival submissions of the parties
and the materials placed on record, this Court finds no reason
to differ with the reasoning/finding in the judgment and
order passed by the Coordinate Bench dated July 10, 2019.
This Court has already dismissed the review application
wherein the learned counsel appearing on behalf of the State
sought to reopen the matter on merits.
In the circumstances, the impugned order dated August
17, 2018 is set aside and/or quashed.
The writ petition being W.P.A. 17772 of 2018 is directed
to be treated as a representation by the respondent no. 3/the
Chief Medical Officer of Health and the representation is to
be disposed of within four weeks from the date of this order.
The petitioner is to be given a personal hearing and a
reasoned order be communicated to the petitioner within two
weeks of passing thereof. In considering the representation
of the petitioner, the respondent no. 3 shall take into account
the directions passed by the Coordinate Bench on July 10,
2019 and the observations by this Court made by the
judgment and order dated December 21, 2022 and also the
order passed today.
With the directions aforesaid, CAN 1 of 2023 and the
writ petition being W.P.A. 17772 of 2018 are disposed of.
All parties shall act on the server copy of this order
duly downloaded from the website of this Court.
Urgent photostat certified copy of this order, if applied
for, be given to the parties upon compliance of all the
formalities.
(Lapita Banerji, J.)
