Calcutta High Court (Appellete Side)
Minati Majumder (Sharma) vs State Of West Bengal & Ors on 30 September, 2024
IN THE HIGH COURT AT CALCUTTA
(Constitutional Writ Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
WPA No.10373 of 2009
Minati Majumder (Sharma)
Vs
State of West Bengal & Ors.
For the Petitioner : Mr. Achyut Basu,
Ms. Punam Basu,
Mr. Rupchand Chakraborty,
Mr. Anirban Saha,
Mr. Sikumar Chakraborty,
Mr. Tirtharaj Ghosal.
For the State : Mr. Rajarshi Basu,
Mr. Ananda Dulal Sarkar.
Hearing concluded on : 17.09.2024
Judgment on : 30.09.2024
2
Shampa Dutt (Paul), J.:
1. The Petitioner's case in this Writ Petition is as follows:-
"........In response to an advertisement inviting applications
for selection of Auxiliary Nurse and Midwife (ANM) in Balia
health sub centre at 1 no Silinda Gryam Panchayat under
rural heath mission the petitioner applied as having requisite
qualification.
On scrutiny of the applications submitted in response to
that the concerned respondent authority prepared a select
list/panel for selection of Auxiliary Nurse and Midwife (ANM)
in Balia health sub centre at 1 no Silinda Gryam Panchayat
under rural health mission, in which the petitioner figures at
the first position in respect of the said health sub-centre.
That primarily on apprehension which was created in her
mind owing to conduct of the concerned respondent authority
that the panel in respect of her health sub centre would not
be considered and selection would be made amongst the
persons who can otherwise satisfy their demand, she
preferred an application under Article 226 of the Constitution
of India in this Hon'ble High Court which was numbered as
W.P. No. 30463(w) of 2008. That no selection/appointment
was made at that point of time in the said health sub centre.
The said application was disposed of on 16/01/2009 by
an order inter alia directing the concerned authority to
consider the case of the petitioner regarding
appointment in accordance with law.
That on 06.02.2009 the concerned authority in complete
disregard of the panel prepared for the purpose of
appointment of Auxiliary Nurse and Midwife (ANM) in Balia
health sub centre at 1 no Silinda Gryam Panchayat under
rural health mission, gave appointment/communicated
selection letter to the respondent no. 7, herein, for
training/appointment in the said post. The said fact came to
the knowledge of the petitioner on or about 7th April, 2009.
That the concerned authority's such action is imbued with
bias and malafide and completely in violation of fair play and
legal principles........."
2. Written notes as to the petitioner's case has been filed.
3. As directed, the State has filed a "Comprehensive Statement of
facts" in Court.
4. Considering the materials on record, the following is evident :-
i) Relevant extract of the order dated 16.01.2009 in W.P.
30463(w) of 2008 related to the petitioner's case herein is as
follows :-
"..........This Court does not agree with the contention
raised by Mr. Saha, learned counsel for the petitioner
that since the petitioner has been empanelled the
respondents must issue offer to appointment in her
favour. It is settled law that mere empanelment
does not confer the candidate concerned any
indefeasible right of appointment. It is the
absolute discretion of the employer to decide as
to whether an appointment shall be given from
the panel or not. The Court of Writ cannot issue a
mandamus directing the employer to appoint any
particular person. Of course, the employer would not
have the licence to act arbitrarily. But by not offering
appointment to any candidate from the panel that has
been prepared, it cannot be said that the employer
has acted arbitrarily.
In view thereof, this Court is unable to issue
any mandamus on the respondents to issue offer of
appointment in favour of the petitioner.
The writ petition stands disposed of. There will
be no order for costs.
However, it is made clear that in the event the
employer seeks to operate the panel that has been
prepared and indeed the petitioner is at the top
position, her claim for appointment shall be duly
considered in accordance with law................
Sd/-
(Dipankar Datta, J.)"
ii) It thus appears that the writ petitioner has approached this
court for the second time claiming the same relief.
iii) The List (undated) in which the petitioner claims to have stood
first is a provisional list/tabulation sheet prepared for the said
post in respect of the respective Gram Panchayats.
iv) From the statement of facts filed by the State it appears
that:-
1. In the Provisional Merit list, it was found that
Minati Majumdar (Sharma) (petitioner, herein) was
placed in the first position with two other waitlisted
candidates (other than Rita Sarkar (Seal), who has been
appointed).
2. After the publication of Provisional Merit List, Rita
Sarkar (Seal) filed an application stating that she has
more marks than the (first) candidate Minati
Majumdar (Sharma), the petitioner herein.
3. Based on Application received from Rita Sarkar
(Seal), SDO, Kalyani after re-Scrutiny prepared the final
panel of the selected and waitlisted candidate and the
final merit list was published. In the final Merit List,
Rita Sarkar (Seal) was found to be selected as she
stood first and Minati Majumdar (Sharma) was then
the 1st Waitlisted Candidate and Anima Das (Sarkar)
was the second waitlisted.
4. As seen from the 'statement of facts' filed by the
State it appears that the Final panel dated 22.11.2008
was duly signed by the then BPHN - Chakdaha,
Karmadhyakha-Chakdaha, BDO, Chakdaha, DPHNO-
Nadia, ACMOH-Kalyani and SDO-Kalyani. The Final
Panel reveals that Rita Sarkar (Seal) Scored 47.13%
(first), Minati Majumdar (Sharma) Scored 42.67%
(second) and Anima Das (Sarkar) Scored 41.67%
Marks.
5. After subsequent approval, Rita Sarkar (Seal)
joined for training as 2nd ANM for the session Feb 2009
to August 2010 at NTS Gandhi Memorial Hospital,
Kalyani vide memo no. : NTS/09/GMH/018 dated :
12.02.2009.
6. BMOH, Chakdaha issued an engagement letter in
the name of Rita Sarkar (Seal) on 30.10.2010.
7. After completion of training from NTS Rita Sarkar
(Seal) Prayed for joining at BMOH, Chakdaha BPHC as
2nd ANM on 09.11.2010.
8. Rita Sarkar (Seal) was allowed to join as 2nd
ANM on 09.11.2010 Fore-Noon by BMOH Chakdaha.
v) The final list is dated/was prepared on 22.11.2008, thus
prior to the order dated 16.01.09 in W.P 30463(w) of 2008,
wherein the court disposed of the matter on giving certain
directions to the authorities concerned.
vi) The authorities in compliance of the court's direction dated
16.01.2009, on considering the petitioners' case, approved the
joining of Rita Sarkar (Seal) for training in the session Feb
2009 to August 2010 vide memo dated 12.02.2009.
vii) The present writ petition has been filed on 17.06.2009,
challenging the appointment of Rita Sarkar (Seal) which this
court finds is in accordance with law, as she stood first in the
final merit list and the petitioner stood 'second'.
5. The writ petition thus having no merit stands dismissed.
6. All connected applications, if any, stand disposed of.
7. Interim order, if any, stands vacated.
8. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)
