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Monday, September 14, 2015

Admittedly, the Government has given opportunity to those Doctors, who had got one specialization more than three years back and they are senior to the appellants. The High Court also took note of the fact that there is a huge deficiency of Doctors in the State and the Government is contemplating of opening of new super-specialty hospitals by the year 2015-16. 14. From perusal of the relevant Rule, it is evident that the placement of the Doctors shall be at the discretion of the Government. Merely because the appellants were allowed in the examination and found place in the select list does not give them right as in-house Doctors to get priority above their seniors. 15. In the peculiar facts and circumstances of the case, we do not find any reason to interfere with the impugned order. However, we record the assurance given by Mr. Bandopadhyay that the appellants will be given sponsorship for the next year 2016-17.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL Nos.6689-6690 OF 2015
             (Arising out of S.L.P.(Civil) Nos.14244-45 of 2015)


Dr. Tapas Kumar Mandal
and others etc.                                  …..Appellant(s)

                                   versus

State of West Bengal and others             ..Respondent(s)


                                  JUDGMENT

M. Y. EQBAL, J.



Leave granted.

2.    These appeals by special leave are directed against the  Judgment  and
order dated 17.04.2015 passed by  the  Division   Bench  of  High  Court  of
Calcutta in A.S.T. Nos. 51 &  52  of  2015  dismissing  the  writ  petitions
preferred  by  the  appellants  against  the  order  of  the   West   Bengal
Administrative Tribunal refusing to pass an interim  order  and  fixing  the
matter for final hearing.

3.     The  facts  of  the  case  in  brief  are  that  the  appellants-writ
petitioners,  who are all Doctors serving under  the  Department  of  Health
and Family Welfare, Government of West Bengal, had obtained M.B.B.S.  Degree
and were issued Registration  Certificates  from  the  West  Bengal  Medical
Council in different years. All of them are permanent  employees  under  the
Department of Health and Family Welfare, Government of West  Bengal,  having
joined their services mostly before 2008. It is appellants’  case  that  the
West Bengal University of Health Sciences  published  an  Advertisement  for
the West Bengal Post Graduate Medical Admission Test  for  the  years  2011-
2012. They all got rank in the test of 2011 or  in  the  test  of  2012  and
after counselling, all of them were admitted to  different  Diploma  courses
and they all completed their courses in the year 2014 with  Trainee  Reserve
Facility  (T.R.  Facility)  following  the  West  Bengal  Medical  Education
Service, the West Bengal Health Service and the West Bengal  Public  Health-
cum- Administrative Service (Placement on Trainee Reserve) Rules,  2008  (in
short, “T. R. Rules of 2008”), which enabled  them  to  study  in  the  said
courses as applicable to in-service candidates. Such T. R.  facilities  were
allowed by the Government vide different memos issued from time to time.

4.     It has been pleaded on  behalf  of  the  appellants  that  they  have
availed two years’ T.R. Facilities on completion of their courses  and  that
they had also availed T. R. facilities to which they were  entitled  to  get
and all of them had obtained such facility in the year 2012, which  came  to
be completed in the year  2014,  just  after  completion  of  their  Diploma
courses.  Further on completion of their Post Graduate  Diploma  Courses  in
the year 2014, their results were duly published and all of them passed  the
examinations and joined duty. Some of them were posted at  different  Health
Centres while others at different Hospitals, but all of them had passed  the
Diploma courses with good marks.
5.    The West Bengal University of Health Sciences issued an  Advertisement
on 12.12.2014 pertaining to the West Bengal Post Graduate Medical  Admission
Test, 2015. They also published  the  Rules  and  Regulations  of  the  said
Admission Test.  The writ petitioners submitted  their  formal  applications
before the concerned authorities so as to enable them to appear in the  said
2015 Tests.   It has been contended by the appellants  that  they  were  all
eligible and the process of allowing in-service Doctors to  take  the  Tests
was being followed by  the  concerned  Department  for  several  years  and,
therefore, the appellants submitted Proforma  of  Sponsorship  Certificates,
which were duly accepted by the concerned authorities.  The appellants  then
applied for the West Bengal Post Graduate Medical Admission  Test,  2015  by
submitting  necessary  documents  along  with  the  necessary  fees  in  the
category  of  Government  Sponsored  Candidates.  The  authorities  of   the
Department of Health and Family Welfare,  Government  of  West  Bengal  then
allowed them to appear and the University of Health Sciences  also  accepted
their Application  Forms  on-line  and  subsequently,  the  appellants  also
submitted hardcopies of such Applications within the specified time.

6.    In February, 2015, Written Test for the 2015 Tests was held  in  which
appellants appeared and in the results, which were published  on  11.2.2015,
appellants got comfortable ranks and top positions.  As  pleaded  on  behalf
of the appellants, on  17.03.2015  a  List  was  published  in  the  website
informing, inter alia, that the persons mentioned therein had qualified  for
acquiring Sponsorship Certificates for  the  W.B.P.G.M.A.T.  2015  and  they
were  instructed  to  go  to  the  concerned  Office   and   collect   their
certificates personally. Hence, it is contended by the appellants that  they
were found eligible for being given Sponsorship Certificates.   However,  on
20.3.2015, the authorities published yet another  Notice  in  their  website
giving out the names of  223  candidates  giving  similar  instructions  for
personally collecting the Sponsorship Certificates.   But  in  this  Notice,
the names of the present appellants were dropped  out.  Upon  enquiry,  they
came to learn that the authorities had taken a decision that they would  not
allow candidates, who had passed Diploma within the last three years and  as
such their names had been dropped.   Being aggrieved, the appellants sent  a
Letter of Demand for justice as well  as  Objection  against  such  act  and
prayed for modifying their stand  of  not  allowing  such  persons  who  had
passed Diploma within the last three years.  According  to  the  appellants,
this was a condition, which was  de  hors  the  provisions  of  the  Trainee
Reserve Rules of 2008.

7.  The names of the appellants were again not published in  another  Notice
dated 23.03.2015, whereby the authorities allowed several Doctors,  who  had
completed their Post Graduate Diploma prior  to  2012  and  before  entering
service and, according to the appellants, even the candidates, who  had  not
completed 2/3 years rural service, which was compulsory as  per  the  Rules,
were allowed.   It has been alleged on behalf of the appellants  that  these
Doctors had several relatives/cousins/nephews in the higher echelons of  the
Government and, therefore, the action was motivated and mala fide.
8.    It has been further pleaded by the appellants that by  a  Notification
dated 24.03.2015, the Joint Secretary to  the  Government  of  West  Bengal,
Department of Health and  Family  Welfare  informed,  inter  alia,  that  in
exercise of powers conferred under Clause 9 of said T.  R.  Rules  of  2008,
those Medical Officers, who had acquired  Post  Graduate  Diploma/Degree  on
availing facilities within the last three  years  (1.4.2012  to  31.3.2015),
would not be allowed  further  T.  R.  facility  during  this  year  (2015).
According to the appellants, this order is illegal, arbitrary  and  proceeds
to debar the appellants  purportedly  on  a  ground,  which  is  beyond  the
grounds mentioned in the Rules.  According to them,  despite  being  toppers
of the merit list they could not participate in the counselling session.
9.    Aggrieved appellants,  therefore,  immediately  approached  the  First
Bench  of  the  West  Bengal  Administrative  Tribunal   (in   short,   “the
Tribunal”), which dismissed their petition on the ground that  Clause  9  of
the T.R. Rules of 2008 had a non-obstante Clause whereby the Government  had
a discretionary power in matters  regarding  placement  of  Trainee  Reserve
candidates and that no  interim  orders  could  be  passed  at  that  stage.
Appellants, thereafter, knocked the doors of the High Court by  filing  writ
petitions, which were dismissed by  the  Division  Bench  holding  that  the
discretion that has been exercised in the instant case does not suffer  from
any irregularity and it is based on logic, equality  and  on  public  policy
since Rule 9 of the aforesaid  Rules  clearly  lays  down  that  “placement”
shall be at the discretion of the Government. Thus,  even  if  a  Doctor  is
eligible for further Government Sponsorship, he cannot claim,  as  a  matter
of right, that such sponsorship be given to him consecutively and  in  short
intervals by not considering others, who are in queue for a period prior  to
1.4.2012.

10.   Hence, the aggrieved Doctors are before us by way of these appeals  by
special leave.  We have heard learned counsel for the parties at length  and
perused the concerned Rules.

11.    Mr.  Huzefa  Ahmadi,  learned  senior  counsel  appearing   for   the
appellants, mainly contended that only after the appellants  were  selected,
the Notification was  published  on  24.3.2015  indicating  that  in-service
candidates who had obtained diploma in the  years  2012-2014  would  not  be
considered for the degree course and only pre-2012 diploma holders would  be
considered.  According to the learned senior counsel, there is no  rationale
for this discrimination particularly when one  of  the  appellants  all  the
three times finally ranked in the merit list for the degree course.  It  was
contended that at the time of filling of the form for the degree course  the
eligibility criteria did not specify  that  only  pre-2012  diploma  holders
will be considered as candidates for the degree  course.   As  a  matter  of
fact, the selection procedure was arbitrarily changed after  the  appellants
were selected and called for giving  sponsorship  certificate.   Mr.  Ahmadi
also referred to some decisions to  the  proposition  that  inter  se  merit
cannot be overlooked to promote seniority which has  no  place  in  the  MCI
Regulations.

12.     Per  contra,  Mr.  Kalyan  Bandopadhyay,  learned   senior   counsel
appearing for the respondents, at the very outset fairly submitted  that  he
has nothing to say so far the merits of the appellants are  concerned.   But
the action taken by  the  respondents  cannot  be  held  to  be  mala  fide.
Indisputably, appellants got the benefit of three years of service.   It  is
not the case of admission in the open category.

13.   Perusal of the impugned order passed by the High Court will  show  the
reasons assigned for giving priority to those  Doctors  who  have  completed
their  diploma  courses  much  before  the  appellants.    Admittedly,   the
Government  has  given  opportunity  to  those  Doctors,  who  had  got  one
specialization more than three  years  back  and  they  are  senior  to  the
appellants.  The High Court also took note of the fact that there is a  huge
deficiency of Doctors in the State and the Government  is  contemplating  of
opening of new super-specialty hospitals by the year 2015-16.
14.   From perusal of the relevant Rule, it is evident  that  the  placement
of the Doctors shall  be  at  the  discretion  of  the  Government.   Merely
because the appellants were allowed in the examination and  found  place  in
the select list does  not  give  them  right  as  in-house  Doctors  to  get
priority above their seniors.
15.   In the peculiar facts and circumstances of the case, we  do  not  find
any reason to interfere with the impugned order.   However,  we  record  the
assurance given by Mr.  Bandopadhyay  that  the  appellants  will  be  given
sponsorship for the next year 2016-17.

16.   For the aforesaid reason, we dismiss these  appeals.   However,  there
shall be no order as to costs.

                                                                  ……………………J.
                                                                (M.Y. Eqbal)


                                                                  ……………………J.
                                                               (C. Nagappan)
New Delhi
September 01, 2015

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