Calcutta High Court (Appellete Side)
Dr. Rajendra Prasad Singh vs State Of West Bengal & Ors on 25 September, 2023
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
WP.ST 384 of 2012
Dr. Rajendra Prasad Singh
Vs.
State of West Bengal & Ors.
For the petitioner : Mr. Biswanath Chakraborty
Mr. Krishnendu Bera
For the State-respondents : Mr. S.N. Mookherjee, Ld. Advocate General
Mr. Jyotiprakash Chatterjee
Ms. Nilanjana Banerjee Pal
Heard & Judgment on : September 25, 2023
DEBANGSU BASAK, J.:-
1. The writ petition is directed against an order dated September
7, 2012 passed by the West Bengal Administrative Tribunal in
OA-712 of 2011.
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2. By the impugned order, the Tribunal rejected the request of
the writ petitioner for permission to revert from practicing to
non-practicing status.
3. The writ petition was heard on August 29, 2023 when an order
was passed. Thereafter, it was placed in the list since the
Court felt that, certain clarifications were required from the
parties. Consequently, orders dated August 31, 2023,
September 6, 2023 and September 19, 2023 were passed.
Assistance of the learned Advocate General was requested.
4. The writ petitioner is a doctor in the employment of State. The
service conditions of the writ petitioner are governed by the
West Bengal State Health Service Act, 1990. The writ
petitioner was engaged in private practice with effect from
November 1, 2007 by virtue of memo dated June 9, 2008. The
writ petitioner wanted to revert to non-practicing status
pursuant to the notification of the department dated August
28, 2007. The writ petitioner applied for such purpose on
November 12, 2009. The writ petitioner was to superannuate
on January 31, 2013. The authorities, however, rejected the
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application for reverting from practicing to non-practicing
status by an order dated May 16, 2011.
5. The application dated November 12, 2009 was not considered
by the authorities and, therefore, the writ petitioner
approached the West Bengal Administrative Tribunal by way of
O.A.570 of 2010. Such original application was disposed of by
an order dated July 19, 2010 requiring the authorities to
consider and dispose of the application dated November 12,
2009.
6. By an order dated May 16, 2011, the Additional Chief
Secretary, Health & Family Welfare Department after hearing
the writ petitioner, negated the claim of the writ petitioner on
the basis of the notification of the department dated October 7,
2009.
7. Aggrieved by the decision dated May 16, 2011, the writ
petitioner approached the Tribunal by way of O.A. 712 of 2011
which was disposed of by the impugned order dated September
7, 2012.
8. The rejection of the application of the writ petitioner was based
on the notification dated October 7, 2009.
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9. The notification dated October 7, 2009, purports to modify the
second proviso of Clause 8(h) of the notification of the
department dated August 29, 2007 published in the Calcutta
Gazette relating to the amendment of the West Bengal Health
Service Rules, 1993.
10. West Bengal Health Service Rules, 1993 was promulgated in
exercise of powers under the West Bengal Health Service Act.
The notification dated August 29, 2007 was published in the
Calcutta Gazette.
11. Notification under the West Bengal State Health Service Act,
1990 is defined in Section 2(c).
The definition is as follows:
"2. ...............
........................
(c) "notification" means a notification published in the Official
Gazette;
......................
....................
.................."
12. It is also relevant to refer to Section 21 of the Act of 1990
which is as follows:
"21. (1) The State Government may, by notification, make
rules for carrying out the purposes of this Act.
(2) Every rule made by the State Government under this
Act shall be laid, as soon as may be after it is made,
before the State Legislature, while it is in session, for a
total period of thirty days which may be comprised in one
session or in two or more successive sessions, and if,
before the expiry of the session immediately following the
session or the successive sessions aforesaid, the State
Legislature agrees in making any modification in the rule
or the State Legislature agrees that the rule should not be
made, the rule shall thereafter have effect only in such
modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall
be without prejudice to the validity of anything previously
done under that rule."
13. Sub-Section (1) of Section 21 permits the State Government
by a notification to make rules for carrying out the purposes
of the Act. In terms of definition of notification as provided
in the Act of 1990, it is required to be published in the
Official Gazette. The notification dated October 7, 2009 was
not published in the Official Gazette. Therefore, the
notification dated October 7, 2009 cannot be read to amend
the existing provisions of the Health Service Rules, 1993.
14. Therefore, in our view, there was a foundational error on the
part of the authorities and the Tribunal in reading October 7,
2009 notification to be one within the meaning of the Act of
1990 amending the West Bengal Health Service Rules, 1993
since the notification dated October 7, 2009 was never
published in the Official Gazette. It does not come within the
definition of a notification as contemplated under the Act of
1990. It is trite law that, a law framed under an Act can be
amended through the mechanism provided under such Act.
15. In the present case, the notification dated October 7, 2009
did not utilise the mechanism provided under the Act of
1990 for framing a rule or the amendment thereof.
Therefore, it cannot be held that the notification dated
October 7, 2009 modified the Health Service Rules, 1993 in
any manner whatsoever. Consequently, the decision of the
authorities and of the Tribunal impugned herein, rejecting
the application of the writ petitioner dated November 12,
2009 are set aside.
16. The Secretary, Health & Family Welfare Department is
requested to consider and decide the application of the writ
petitioner dated November 12, 2009 within a period of six
weeks from the date of communication of this order to him.
He will afford a reasonable opportunity of hearing to the writ
petitioner. He is at liberty to hear such other parties and
consult such other documents as he deems appropriate.
17. WP.ST 384 of 2012 is disposed of without any order as to
costs.
(Debangsu Basak,J.)
18. I Agree.
(Md. Shabbar Rashidi, J.)
(AD)
