Calcutta High Court (Appellete Side)
Dip Sarkar &Ors vs The State Of West Bengal &Ors on 13 September, 2024
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
&
The Hon'ble Justice Partha Sarathi Chatterjee
WP.ST 165 of 2023
with
IA No. CAN 1 of 2023
with
IA No.CAN 2 of 2023
Dip Sarkar &Ors.
Versus
The State of West Bengal &Ors.
with
WP.ST 170 of 2023
with
IA No. CAN 1 of 2023
The Secretary and Controller of Examinations,
West Bengal Health Recruitment Board
Versus
Dip Sarkar &Ors.
For the Petitioners : Mr. Uday Narayan Betal,
WP.ST 165 of 2023 Mr. Mriganka Patra.
And Respondents in
WP.ST 170 of 2023
For the Applicants in : Mr. Sadananda Ganguly,
CAN 2 of 2023 of Mr. Sumit Ray,
WP.ST 165 of 2023 Mr. Sanjay Ghosh,
Ms. Sarda Shaw.
For the State respondents : Mr. Tapan Kumar Mukherjee, Ld. A.G.P.,
in WP.ST 165 of 2023 Mr. Somnath Naskar.
For the Sate respondents : Mr. Tapan Kumar Mukherjee, Ld. A.G.P.,
in WP.ST 170 of 2023 Ms. Sangeeta Roy.
2
For the Petitioners in : Mr. Jayanta Samanta,
WP.ST 170 of 2023 Ms. Indumouli Banerjee.
For the Respondent no. 2 : Mr. Amal Kumar Sen,
Ms. Sahina Sumi.
Hearing is concluded on : 29th August, 2024
Judgment On : 13th September, 2024
Partha Sarathi Chatterjee, J.
Preface:
1. Both writ petitions are presented seeking a judicial review of a common
order dated August 23, 2023 passed by the learned Tribunal in an original
application (in short, OA), being OA 173 of 2022 and as such, both writ
petitions are heard analogously. The order dated 23.08.2023 adjudicated
the OA with the following order:
" In view of the above observations, it is the finding of this Tribunal
that the Reasoned order passed by the Secretary and Controller of
Examination, West Bengal Health Recruitment Board dated
02.03.2022 is not in conformity with any rules and thus, void in law
and quashable. Accordingly, the Reasoned order is quashed and set
aside with the following directions to the respondent no. 5, Secretary
and Controller of Examination, West Bengal Health Recruitment
Board:
1) Initiate the process of selection for the post of Medical
Technologist (Lab) Grade-III within four (4) weeks from the
communication of this order.
2) Allow the applicants to participate in the said selection process
if they are found to be otherwise eligible, and
3) Allot one mark each year upto maximum 5 weeks if the
certificates produced by them are found to be from the
recognised private sector and are acceptable.
Accordingly, the application is disposed of."
Key facts:
2. Although the issue at hand lies within a narrow compass, for the sake
of elucidation and a comprehensive appreciation of the same, it is
imperative to outline the salient facts that have given rise to these writ
petitions.
3. A selection process was initiated by the West Bengal Health
Recruitment Board (hereinafter referred to as the "Board") to fill the posts
of Medical Technologist Grade III (All categories) under the West Bengal
Subordinate Health Services. In this regard, an advertisement No. R/MT
(VARIOUS)/02/2021, dated January 21, 2021, was issued inviting online
applications from eligible candidates for the posts. The deadline for
submission of the online application was 6.02.2021.
4. To get to the heart of the matter, it is pertinent to examine the
distribution of marks, as outlined in the advertisement, is as follows:
"a) Higher Secondary (10+2) or its equivalent examinations in
Science Subjects [Physics, Chemistry and Biology] - 25 marks
b) Diploma/Bachelor Degree in Medical Technology in concerned
subject - 50 marks.
c) Experience as Medical Technologist in State Govt. service
(Permanent/Contractual) - 02 marks/year - 10(Max)
[Maximum last 5 years' tenure of experience will be taken into account]
d) Interview - 15 (Max)".
5. It is important to note that marks for experience were allotted only
to the candidates who had served as Medical Technologists in State
Government service, whether as permanent or contractual employees.
Consequently, no marks were allotted to the candidates who gained
experience through service in private organizations. This constitutes the
central issue of contention.
6. Some candidates who are aspiring for the posts and have gained
experience in private organizations raised their grievances regarding the
allocation of marks for experience to candidates who have gathered
experience in government service by making a joint representation on
February 01, 2021 i.e. prior to the deadline for submission of the online
applications. However, since their representation did not receive a
response from the concerned authorities, they were compelled to approach
the learned Tribunal with OA 169 of 2021. This OA was disposed of by an
order dated August 6, 2021, directing the respondent no. 5 to take a
reasoned decision on the representation after affording a hearing to either
the applicant no. 1 or a representative of the applicants.
7. Following this direction, the respondent No. 5 provided an
opportunity of hearing to the applicant No. 1 and the representative of the
Director of Health Services, but ultimately, rejected the appeal to allocate
marks for experience to candidates who had gained such experience
through employment in the private sector, by issuing a reasoned order
dated 02.03.2023. For clarity and convenience, it would be apposite to
quote the operative part of the order, which is as follows:
" With the object getting preferable candidates and WBHRB, having
prerogative to determine the qualifying standards of the applicants,
fix the relative weightage to be given for academic career and
experience for preparing the final order of merit, have provided
weightage to the candidates who have working experience in the State
Government Sector by allotting 10 marks under experience category.
Applicants after accepting the stipulations of the advertisement
cannot turn around and dispute the same later on.
Considering the prerogative of the Board of WBHRB in fixing
marks distribution pattern and keeping in view the submission of Dr.
Tapan Kumar Sahar ADHA(Admin), the prayer of the applicants for
allotting marks for having working experience in private sector
cannot be considered. Above all, if the prayer of the applicants is
considered the same may amount to change in the rules in selection
procedure.
Hence, the representation dated 1st Februrary, 2021 is disposed of."
8. Since the reasoned order rejected the appeal of the petitioners in OA
169 of 2021 to allocate 10 marks for experience gained in the private
sector, those petitioners challenged this decision before the learned
Tribunal in OA 173 of 2023. As noted previously, the order under scrutiny
in this writ petition indicates that the learned Tribunal disapproved the
reasoning provided by respondent No. 5 in his order dated March 2, 2023.
However, in that order, the Tribunal directed respondent No. 5 to allocate
one mark for each year of experience, up to a maximum of five marks,
provided the certificates produced by them are from recognized private
sector and are acceptable.
9. This direction from the Tribunal has led to the filing of two writ
petitions. The first, being, WP.ST 165 of 2024, has been presented by the
candidates with experience in the private sector, seeking to advance their
claim for the allocation of 10 marks for experience, whereas the second,
being, WP.ST 170 of 2024, has been filed by the Secretary and Controller
of Examinations, West Bengal Health Recruitment Board to challenge the
decision to award marks for experience to candidates who obtained such
experience in private organizations.
10. Therefore, the limited issue that we are tasked to resolve is whether the
candidates who have gained experience in the private sector are entitled to
receive any marks for their experience, and if so, whether the appropriate
allocation should be 5 marks or 10 marks.
Submissions:
11. Mr. Betal, learned advocate representing the petitioners in WP.ST 165 of
2023, argues that the petitioners are aggrieved by the concluding part of
the order challenged in both writ petitions, whereby the learned Tribunal
directed the Board to allot 5 marks for experience to candidates from the
private sector. He contends that according to the advertisement issued by
the Board for the post, 10 marks were allotted for experience as a Medical
Technologist in State Government Service (Permanent/Contractual).
According to him, such allotment of marks towards experience only for the
candidates who gained experience as Medical Technologist in State
Government Service is illegal, as the extant Recruitment Rules does not
empower the Board to allot any mark towards experience.
12. He seeks to clarify the petitioners' stand, contending that the
petitioners do not object to the allotment of marks for experience to
candidates from Government Service (permanent or casual). However, the
sole intention of the petitioners in pursuing this action is to ensure that the
same marks are also allotted for experience to candidates from the private
sector.
13. His main argument is that, even if Board had such power to specify
marks under different heads, it cannot differentiate between candidates
with experience in the government sector and those with experience in the
private sector, since such practice is discriminatory. He contends that the
advertisement shows that not only the candidates with experience in
private sector but the candidates who gathered experience in Central
Government Service are also not to be awarded any mark towards
experience. He submits that in 2018 and 2022 also, selection processes
were initiated to fill the posts of same cadre but in both selection
processes, there was no such classification. According to him, such a
classification cannot be sustained.
14. He argues that the Private Medical Service Providers are governed by
the provisions of the West Bengal Clinical Establishment (Registration,
Regulation and Transparency) Act, 2017 (in short, the 2017 Act), and are
required to maintain high standard and transparency in their operations.
He contends that although the learned Tribunal found this classification to
be illegal, it misguided itself by directing the respondents to allocate only 5
marks instead of 10 marks for experience to candidates from the private
sector. To embolden his contention, Mr. Betal places reliance on the
decisions, reported at (1987) 4 SCC 646 (Shri Durgacharan Misra v. State
of Orissa & Ors.) and (1995) 6 SCC 1 (Krushna Chandra Sahu v. State of
Orissa & Ors) for the proposition that a commission or authority
empowered to conduct selection process cannot prescribe additional
requirements for selection.
15. In rebuttal, Mr. Mukherjee, learned Additional Government Pleader
representing the petitioners in WP.ST 170 of 2023 and the respondents in
WP.ST 165 of 2023, argues that the provisions of the 2017 Act do not apply
to clinical establishments maintained by or under the control of the State
Government, Central Government, Local Self-Government, or any local
authority. Therefore, according to him, the candidates with experience in
State Government Service cannot be equated with those who have gained
experience in the private sector. He further argues that, since the
Recruitment Rules were framed by the Hon'ble Governor under the power
conferred by Article 309 of the Constitution of India, and the Board, which
holds a status similar to that of a Public Service Commission constituted
under Article 320 of the Constitution of India, can prescribe additional
requirements for the selection process. He asserts that the Board's power
in this regard is not amenable to judicial review.
16. He further argues that an employer has the prerogative to determine the
qualifying standards for candidates in any selection process. In his view, a
court or tribunal should not dictate how the employer should set
qualifications for a particular post. He asserts that the candidates with
experience from State Government Service are better qualified and as
such, to identify the better and/or preferable candidates for the posts, 10
marks are allotted only to the candidates with experience from State
Government Service. He contends that the Board did not commit any
mistake in allotting 10 marks to candidates with experience in State
Government Service and that the learned Tribunal erred in directing the
respondents to allot only 5 marks to candidates with experience in the
private sector.
17. Mr. Betal was quick to respond to Mr. Mukherjee's contention, arguing
that it is unclear on what basis candidates with experience in State
Government Service are being deemed better qualified than those with
experience in the private sector.
Analysis:
18. Indisputably, setting eligibility criteria falls within the exclusive domain
of an employer and cannot be subject to judicial review unless it is found to
be arbitrary, unreasonable, or not aligned with the nature of the services
for which the appointments are to be made. If the eligibility criteria lack a
rational relation to the objectives of the statute, or if they are deemed
arbitrary or unreasonable, they are liable to be quashed as they contravene
Article 14 of the Constitution of India, which guarantees equality before
the law and equal protection under the law. (See, the judgment delivered
in case of State of Jammu & Kashmir v. Shiv Ram Sharma, reported in AIR
1999 SC 2012 and Pradeep Kumar Biswas v. Indian Institute of Chemical
Biology, reported at (2002) 5 SCC 111).
19. Admittedly, in the case at hand, the Recruitment Rules prescribes that
the posts shall be filled up by selection (direct recruitment) through the
Board and the Director of Health Services, West Bengal would be the
appointing authority. However, apart from prescribing educational
qualifications, no other qualifications have been prescribed for the post.
20. There cannot be any quarrel in accepting the proposition of law
expounded in the judgements delivered in cases of Shri Durgacharan
Misra (supra) and Krushna Chandra Sahu (supra) that if the relevant
recruitment rules do not empower, a selection body cannot prescribe
additional qualification for any post. However, since it has been clarified
that the petitioners' sole intention in pursuing this action is to ensure that
same 10 marks are also allotted to candidates from private sector also, we
restrain ourselves from making any further deliberation on this particular
issue.
21. Article 14 of the Constitution of India forbids only class legislation and
not reasonable classification. A classification is considered reasonable
when the twin tests laid down in the celebrated decision, reported at AIR
1975 SC 75 (State of W.B -vs- Anwar Ali Sarkar) are fulfilled. The twin
tests are follows:
'(i) The classification must be based on an intelligible differentia that
distinguishes persons or things within the group from those excluded from
it; and
(ii) The differentia must have a rational relationship to the objective
sought to be achieved by the statute'.
22. Therefore, it must be examined whether the differentia is reasonable
and intelligible. If the answer is affirmative, it is then necessary to
determine whether such differentia has any nexus with the object of the
scheme. It goes without saying that the term 'intelligible' refers to 'what
can be understood.'
23. The reasoned order dated 2.3.2022 issued by the respondent no. 5
indicates that the classification was made with 'the objective of selecting
preferable candidates', and since the Board, as the employer, has the
prerogative to determine the qualifying standards for the post.
24. In the order challenged in the writ petitions, the learned Tribunal
observed that the word 'Technologist' used in the nomenclature of the post
suggests that the candidates have to be familiar with functioning of
medical devices and machineries. In other words, they are required to
handle or operate the machines/apparatus used for therapeutic purposes.
However, ultimately, the learned Tribunal strongly criticised such
classification, finding it to be premeditated bias towards the candidates
with experience in government sector. It concluded that disregard for the
experience gained in private organizations is arbitrary, contrary to the
principles of natural justice, and not supported by the relevant recruitment
rules.
25. Admittedly, the objective underlying any selection process is to find
best candidate for the post. The phrase 'the objective of selecting
preferable candidate', as used in the reasoned order, is somewhat
confusing. If the State and its functionaries completely disregard the
experience gathered in private organisation, it undermines the standard
maintained in private sector. Such action shall convey a message that
experience in operating medical device can only be acquired in
government sector. It has an effect of devaluing the experience of the
technologist employed in private sector. It is not clear on what basis the
respondents had reached such a conclusion.
26. The advertisement did not prohibit candidates with experience from the
private sector or other government services from applying for the posts.
However, it specified that candidates with experience in the private sector
or other government services would compete out of a total of 90 marks,
while candidates with experience in State Government Service would
compete with a total of 100 marks. This is a clear example of
discrimination and, therefore, violates the principles enshrined in Article
14 of the Constitution of India. Moreover, such discrimination undermines
the standards maintained by private medical service providers and creates
an unjust class distinction, which should be avoided.
27. It is well-settled that a legislation should not only to be assessed on its
proposed aims but rather on the implications and the effects. [see, the
judgment delivered in case of Anuj Garg v. Hotel Assn. of India, reported
at (2008) 3 SCC 1].
28. In the judgment delivered in the case of 'Press Trust of India v. Union of
India', reported in (1974) 4 SCC 638, it was ruled that even where
legislative action or any action is taken under any law affecting a single
individual or thing, or several individuals or things, and no reasonable
basis for classification appears in the face of it or is deducible from the
surrounding circumstances, such action is liable to be struck down as
discriminatory. Since we did not find any basis for the classification made
in the advertisement between candidates with experience from State
Government Service (permanent or casual) and those with experience
from the private sector, we cannot approve the allotment of 10 marks
exclusively to candidates from State Government Service. In our
considered opinion, the same marks should also be allotted to candidates
from the private sector.
29. The court cannot ignore the fact that, to manage the pressure of
providing medical treatment in this highly populated country, the State
has adopted a public-private model. Even the Health Department of each
State is resorting to outsourcing many services to the private sector. The
reality is that the State is unable to provide medical facilities to all its
citizens, and a significant portion of the population depends on private
medical service providers for life-saving treatment.
30. As observed previously, no authority can get unfettered prerogative or
discretion to act according its whims and caprice. The scope of judicial
review is based on the grounds of illegality, procedural impropriety and
irrationality (Wednesbury's unreasonableness). The doctrine of
proportionality can serve as an additional ground. A decision can be
deemed to be irrational, if it is so outrageous in its defiance of logic or
accepted moral standards that no sensible person, having applied his mind
to the question to be decided, could have arrived at it. If any
administrative action is found to be illegal, improper or irrational, the
court or tribunal has sufficient authority to address such mischief and
rectify the wrong.
Conclusion:
31. Therefore, in view of discussion made hereinabove, we do not find that
the classification as was made by the respondents between the candidates
with experience in the government sector and those with experience in the
private sector is based on intelligible differentia and therefore, cannot be
upheld. The learned Tribunal also reached the same conclusion but it erred
by directing the respondents to allot 5 marks instead of 10 marks towards
experience which has resulted in further discrimination and even
inconsistent with the Tribunal's own observation.
Order:
32. In such conspectus, the writ petition WP.ST 165 of 2023 is allowed,
while writ petition WP.ST 170 of 2023 is dismissed. The operative order of
the learned Tribunal dated 23.08.2022 passed in OA 173 of 2022 is
modified to the extent that the respondents shall allocate 10 marks for
experience to the petitioners in WP.ST 165 of 2023, who have gained
experience in the private sector. However, the respondents in WP.ST 165
of 2023 retain the authority to conduct a thorough inquiry to verify the
authenticity of the certificates submitted from recognized private medical
organizations and to assess whether the candidates have actually acquired
the required experience for the post. The period as fixed by the learned
Tribunal for initiation of the selection process for the post is extended for a
period of 4 (four) weeks from date. The other portions of the order under
assail in these two writ petitions are left unaltered.
33. There shall be no order as to the costs.
34. Urgent photostat certified copy of this judgment, if applied for, shall be
granted to the parties as expeditiously as possible, upon compliance of all
formalities.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)
