Calcutta High Court (Appellete Side)

Mithu Bauri vs The State Of West Bengal & Ors on 1 May, 2023

 01.05.2023
Sl. No.43(ML)
    srm
                                W.P.A. No. 22024 of 2016

                                      Mithu Bauri

                                              Vs.

                             The State of West Bengal & Ors.



                      Mr. Subhas Chandra Atha,
                      Ms. Payel Pramanik
                                                            ....for the Petitioner.

                      Mr. Pantu Deb Roy,
                      Mr. Subrata Guha Biswas
                                            ...for the State-respondents.

The petitioner has challenged the order of the Joint

Secretary (Family Welfare) & Additional Mission Director

(National Health Mission) dated June 26, 2014. By the said

order, approval to the selection of the petitioner as an

Accredited Social Health Activist (ASHA) in Jamtora Gram

Panchayat, Bankura, had been refused by the government.

The State Mission Director (National Rural Health

Mission) & Ex Officio Special Secretary, Department of

Health and Family Welfare, Government of West Bengal,

circulated an office order being Memo

No.HFW/NRHM/277/06 dated December 11, 2006 to all

Sabhadhipatis, District Magistrates and Chief Medical

Officers of Health regarding engagement of ASHAs in

different blocks of different districts in West Bengal. Along

with the said notification, guidelines for the selection of

ASHA had been enclosed. All the blocks followed the

guidelines framed for implementation of the said selection

process. The guidelines provided that the age group of the

candidates applying for being selected as an ASHA should

be between 30 to 40 years, which was relaxable to 25 years,

in case of scheduled tribes only. The guidelines did not

provide for age relaxation for scheduled caste candidates.

The petitioner is a schedule caste candidate.

According to the petitioner, the Pradhan of Jamtora

Gram Panchayat had issued a notification inviting

applications from eligible candidates. In the said

advertisement, the lower age limit of the candidates

applying for the post was mentioned as 25 years. The

petitioner accordingly applied for being considered in the

recruitment process.

The petitioner was 29 years 6 months at the relevant

point of time. When the selection of the petitioner was sent

for approval by the department as per the guidelines, it

was found that the petitioner had not met the eligibility

criteria of being within the age group of 30 to 40 years.

Hence the selection of the petitioner was not approved by

the government.

Learned Advocate for the petitioner has prayed for

cancellation of the said decision on the following grounds:

(a) The Pradhan issued the advertisement by

mentioning the lower age limit as 25 years for

scheduled caste candidates.

(b) The petitioner qualified in terms of the

advertisement.

(c) The vested right of the petitioner could not be

taken away subsequently, by the government.

(d) The petitioner cannot suffer for any mistake, if at

all, committed by the Pradhan.

The two reports filed by the State-respondents

clearly indicate that at the time of publication of the

advertisement on the basis of which the petitioner applied

for the post of ASHA, the guidelines annexed to the

communication dated December 11, 2006 were to be

followed. The Pradhan of the Jamtora Gram Panchayat

unilaterally relaxed the lower age limit for scheduled caste

candidates to 25 years, without any authority from the

concerned department and in violation of the guidelines.

The contention of the petitioner that the guidelines

was undated and did not bear any memo number, is not

relevant for adjudication of the dispute in this case, as it is

the specific contention of the Department of Health and

Family Welfare, Government of West Bengal, that the

guidelines attached to the communication dated December

11, 2006 was the sole basis for deciding the eligibility

criteria and the procedure to be followed for engagement

of ASHA vide notification dated December 11, 2006.

Subsequently, on June 27, 2012, the revised

guidelines were published. Clause B.3 of the same

mentioned that the age limit of a candidate who applied

for the post of an ASHA should be between 30 to 40 years,

but relaxation up to the lower age limit to 22 years for

scheduled caste and scheduled tribe candidates could be

given by the authority. The petitioner relies on such

guidelines and submits that the candidature of the

petitioner ought to have been decided on the basis of the

said 2012 guidelines, by relaxing the lower age limit.

There is no doubt that at the relevant point of time,

the guidelines annexed to the communication dated

December 11, 2006 were being followed. The petitioner has

not been able to prove the contrary. Only age limit for

scheduled tribe categories was relaxable to 25 years. In any

event, the expression 'relaxable to 25 years' does not

mandate that there must be relaxation in all cases. The

discretion is left with the authority to relax the lower age

limit in an appropriate case by deciding as to whether the

relaxation would be given or not. The petitioner has not

been able to show that such situation exists. The writ court

cannot also interpret the 'scheduled caste' to be

synonymous with 'schedule tribe'.

Next, the question as to whether the revised

guidelines dated June 27, 2012, would be applicable in this

case, is answered in the negative. The guidelines applicable

in the impugned selection process would be the one which

was prevailing on March 23, 2012, that is, the last date

within which the applications had to be filed by the eligible

candidates. As per the advertisement published by the

Pradhan inviting applications from the eligible candidates

to participate in the ASHA selection process, the last date

was March 23, 2012. The notification/guidelines dated June

27, 2012 is an administrative order which cannot be

applied retrospectively and must be applied prospectively.

In the decision of Bharat Sanchar Nigam Ltd. & ors.

etc. vs. M/s Tata communications Ltd. Etc. decided in Civil

Appeal No.1699-1723 of 2015 at paragraph 30, the Hon'ble

Apex Court held as follows:-

"30. The power to make retrospective legislations enables the Legislature to obliterate an amending Act completely and restore the law as it existed before the amending Act, but at the same time, administrative/executive orders or circulars, as the

case may be, in the absence of any legislative competence cannot be made applicable with retrospective effect. Only law could be made retrospectively if it was expressly provided by the Legislature in the Statute. Keeping in mind the afore-stated principles of law on the subject, we are of the view that applicability of the circular dated 12th June, 2012 to be effective retrospectively from 1st April 2009, in revising the infrastructure charges, is not legally sustainable and to this extent, we are in agreement with the view expressed by the Tribunal under the impugned judgment."

Secondly, the discretion left to the authority to relax

the lower age limit up to 22 years cannot be considered to

be a mandate upon the authorities to relax the lower age

limit in all cases. It is left to the authority to decide in

appropriate cases as to whether the relaxation would be

given or not. In the decision of Shri Amrik Singh and

others vs. Union of India and others reported in (1980) 3

SCC 393, the Hon'ble Apex Court held that the

discretionary power has to be exercised judiciously and not

in a routine manner. Right to a post accrues when the

appointment letter is issued.

The other question of infringement of a vested right

raised by the petitioner, does not arise, precisely for the

reason that the selection of the petitioner had not been

reached to its logical conclusion and had been disapproved

by the appropriate authority at a stage before the

appointment letter.

The guidelines which was applicable at the relevant

point of time required that the final list of the selected

candidates (gram panchayat wise and village wise), should

be submitted to the State. In compliance with such

provision, the selection list with the petitioner's name was

sent to the State. The state authorities found that the

petitioner was not eligible, as he was under age. Thus, the

petitioner did not accrue any vested right even if his name

was included in the list. The selection was subject to the

approval of the State and the approval was not granted.

In the decision of Punjab SEB vs. Malkiat Singh

reported in (2005) 9 SCC 22, the Hon'ble Apex Court held

that the mere inclusion of the candidate in a selection list

does not confer upon them a vested right to appointment.

The court held:-

"4. ...the High Court committed an error in proceeding on the basis that the respondent had got a vested right for (2005) 9 SCC 22 appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47.

7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the

notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220.

The selection was not found to be in accordance

with the procedure and guidelines and hence approval for

the selection of the petitioner was not given by the

competent authority. The fact that the Pradhan had

unilaterally relaxed the lower age limit, cannot be a ground

for allowing the writ petition as the Pradhan did not have

any authority to do so.

Any appointment de hors the procedure and the

guidelines and on the basis of a decision of an authority

who did not have any power or jurisdiction to decide on

such selection process, thereby, re-writing the eligibility

criteria in contravention to the guidelines, cannot be a