The State Of West Bengal & Ors vs Smt. Rita Roy (Maity) & Anr
2023 Latest Caselaw 7087 Cal

                                MAT 425 of 2021
                                     with
13.10.23                         CAN 1 of 2021
  Sl-04                              and
  Ct.11                          CAN 2 of 2021
 (S.R.)
                        The State of West Bengal & Ors.
                                      v.
                         Smt. Rita Roy (Maity) & Anr.

           Mr. Tapan Kumar Mukherjee, Ld. AGP
           Mr. Avishek Prasad               ... for the appellants.

           Mr. Soumik Ganguli
           Mr. Lal Ratan Mondal
           Mr. Dilip Kumar Sadhu
           Ms. Chandana Chakraborty
                                ... writ petitioner/respondent no.1.

The present appeal has been preferred challenging

an order dated 20th January, 2021 passed by the learned

Single Judge in a writ petition being WPA 11056 of 2020.

This case has a chequered history. In the month of

October, 2006, the appellants published a notice in a

local newspaper inviting applications from eligible

candidates for engagement in the post of Auxiliary Nurse-

cum-Mid-wife (in short, ANM) on contractual basis in the

sub-health centres in different blocks of the district. In

response thereto, the writ petitioner/respondent no.1

herein, namely, Rita Roy (Maity) (in short, Rita) submitted

an application annexing the relevant documents and the

same was dropped in a box prescribed therefor in the

office of the appellant no.5. As no intimation was

furnished thereafter, Rita preferred a writ petition being

WP No.28389 (W) of 2006, which was disposed of by an

order dated 22nd January, 2008 with liberty to Rita to

submit a representation annexing thereto a copy of the

writ application as well as all other supporting material

documents before the appellant no.4. It was further

directed that upon receipt of such representation the said

authority shall consider the matter in its proper

perspective after giving an opportunity of hearing. Rita

accordingly submitted a representation annexing her

academic qualification certificates, ration card, EPIC,

gram panchayat certificate and voter list. Upon receipt of

the same, the appellant no.4 passed an order on 30th

April, 2008 rejecting Rita's claim. Aggrieved by the said

order, Rita again preferred a writ petition being WP

No.16842 (W) of 2008, which was disposed of by an order

dated 2nd December, 2009 setting aside the order passed

by the appellant no.4 observing inter alia that there was

no discussion whatsoever in the said order as to why the

documents relied on by Rita were not relevant. The

matter was remanded to the self-same authority to

consider the matter afresh in terms of the earlier order

passed by the Writ Court on 22nd January, 2008.

Pursuant to such direction, the appellant no.4 passed an

order on 17th January, 2020 again rejecting Rita's claim.

Aggrieved thereby, Rita again preferred a writ petition

being WPA 11056 of 2020, which was disposed of by the

order dated 20th January, 2021 impugned in the present

appeal. As the said order was not being complied with,

Rita preferred a contempt application and during

pendency of the same, Rita was engaged as 2nd ANM at

Kutki sub centre in the Narayangarh Block, Paschim

Medinipur by a memo dated 15th December, 2021 issued

by the appellant no.3 recording inter alia that such

engagement would abide by the result of the pending

appeal.

Mr. Mukherjee, learned Additional Government

Pleader, assisted by Mr. Prasad, learned advocate

appearing for the appellants, argues that the writ petition

was abruptly disposed of without calling for affidavits and

without setting aside the order impugned in the same. As

the lis involved disputed question of facts, the appellants

ought to have been granted an opportunity to file an

affidavit. In view thereof, the order impugned is not

sustainable in law moreso when the same has been

passed without taking into consideration Rule 38 of the

Writ Rules. In support of such contention reliance has

been placed upon a judgment delivered in the case of

Satpalsa High School and Ors. -vs- Krishna Ram

Bhattacharya & Ors., reported in (2018) 1 CHN 222.

He further argues that the order engaging Rita in

the post of 2nd ANM was passed on threat of contempt and

such act does not render the present appeal infructuous

and does not debar the authorities from challenging the

same in an appeal. In support of such contention reliance

has been placed upon a judgment delivered in the case of

Union of India and Ors. -vs- Ram Kumar Thakur, reported

in (2009) 1 SCC 122.

He further argues that training is mandatory for

appointment to the post of 2nd ANM. The scheme to that

effect had already been discontinued by the competent

authority, as would be explicit from the memo dated 13th

March, 2015 issued by the Mission Director. Rita was not

a selected candidate in the recruitment process, which

was initiated in the year 2006 and training cannot be

imparted to Rita at this stage since the scheme has

already been discontinued. The post in which Rita was

asked to be engaged had already been filled up and there

is no existing vacancy. No legal right of Rita was infringed

warranting interference of the Writ Court.

Per contra, Mr. Mondal, learned advocate appearing

for the respondent no.1 submits that there is no dispute

that the applicants were asked to deposit their

applications along with relevant documents in a box

prescribed therefor in the office of the appellant no.5. A

perusal of the first order of rejection dated 20th March,

2008/30th April, 2008 would reveal that Rita did submit

her application, however, allegedly, as the same was not

accompanied with either the Ration Card or EPIC, the

application was rejected. The said order was set aside in

the second writ petition as the documents annexed to the

representation submitted by Rita were not considered.

The Writ Court accordingly directed the appellant no.4 to

consider the matter afresh dealing with the documents

submitted. However, the second order of rejection was

passed on 17th January, 2020 reiterating the grounds

taken in the earlier order. From such sequence it is

explicit that the appellants were determined to deny

engagement to Rita in an arbitrary and mala fide manner.

He further argues that considering the fact that Rita

had been continuously litigating since the year 2006 and

as the delay was not totally attributable to her, the Writ

Court rightly directed the authorities to engage Rita in the

post of ANM indicating that such engagement was being

issued in the peculiar facts and circumstances of the case

and as an exception without creating any precedent and

protecting the engagement of the respondent no.2. The

order does not suffer from any infirmity warranting

interference of this Court. In support of the arguments

advanced reliance has been placed upon two unreported

judgments delivered in the cases of Ujjal Ghosh versus

Prabir Kumar Chattopadhyay & Others and Chittaranjan

Baidya versus Dipankar Mandal & Others.

Heard the learned advocates appearing for the

respective parties and considered the materials on record.

It is well known that a decision is an authority for

what it decides and not what can logically be deduced

therefrom. Even a slight distinction in fact or an

additional fact may make a lot of difference in decision

making process. The judgment is a precedent for the issue

of law that is raised and decided and not observations

made in the facts of any particular case. There is no

dispute as regards the proposition of law laid down in the

judgments upon which reliance has been placed by the

appellants. The order impugned in the present appeal

was passed in presence of the learned Advocate appearing

for the State and upon hearing him and as such the

judgment delivered in the case of Satpalsa High School

(supra) is distinguishable on facts.

Mr. Mukherjee has strenuously argued that the

scheme itself has been abolished and as such, the

appellants are not in a position to impart training to Rita

in the post at this stage. In support of such contention,

reliance has been placed upon the memoranda dated 1st

October, 2012, 10th December, 2014, 13th March, 2015

and 19th May 2015. The first order was passed by the

appellant no.4 on 20th March, 2008/13th April, 2008. The

said order was set aside by the Writ Court. The

subsequent order was passed on 17th January, 2020. In

none of the said orders ground as regards abolition of the

scheme or as regards stoppage of training had been

urged. The litigation commenced from 2006 and the same

ultimately culminated in the order impugned in the

present appeal about 15 years thereafter.

The appellants have repeatedly rejected Rita's claim

on the basis of a ground that she did not submit a proper

application annexing copies of the documents, as

specifically stated in the advertisement. Indisputably, the

application along with the documents were asked to be

dropped in a box. No receipt was provided by the

authorities. No intimation was furnished that Rita's

application had been rejected for non-availability of

relevant documents. In the said conspectus, the learned

Judge rightly directed the appellants to engage Rita in the

post of ANM observing, inter alia, that 'there is no way of

verifying the claim of the Medical Officer, Narayangarh or

the Block Development Officer, Narayangarh that the

petitioner did not furnish the Ration Card or the Voter's

identity card/EPIC Card'. The order was passed

considering the peculiar facts and circumstances involved

and as an exception without creating any precedent since

denial of such engagement would have been iniquitous.

Judiciary has a very strong sense of justice and it

works to maintain social justice and fairness. Equity

regards as done, which should have been done. It would

be the bounden duty of the Court to put an end to a

protracted long agony of the litigant, who had suffered the

distraught pain and was kept in animated tenterhooks in

anticipation of an employment.

Applying such proposition and considering the

peculiar facts and circumstances of the case, we do not

find any infirmity in the order impugned.

In view thereof, the appeal and the connected

application are dismissed.

There shall, however, be no order as to costs.

Urgent Photostat certified copy of the order if

applied for, be made over to the parties as expeditiously

as possible.

(Siddhartha Roy Chowdhury, J.) (Tapabrata Chakraborty, J.)