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
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
