Tridip Kumar Dingal And Ors vs State Of West Bengal And Ors

2. The present appeals have been instituted by the appellants being aggrieved and dissatisfied with the judgment and order passed by the High Court of Calcutta on August 11, 2003 in WPSR No. 630 of 2002 and companion matters and an order, dated January 06, 2005 in CAP No. 1006 of 2004 and cognate petitions.

3. The case has a checkered history. In early nineties of the last century, the Department of Health & Family Welfare, State of West Bengal suffered acute shortage and non- availability of adequate member of Medical Technologists. In their absence, laboratory and investigation work in Government Hospitals, Laboratories, Medical Colleges, Primary Health Centres, Blood Banks, etc. could not be performed satisfactorily. The Government was worrying as to distress and agony of patients 3 visiting hospitals and dispensaries. It, therefore, took an initiative to fill up requisite number of vacancies of Medical Technologists by taking up the matter with the Employment Exchange. On October 5, 1993, the Assistant Director of Health Services (Administration) issued a Memo to the Director of Employment Exchange for sponsoring names of candidates for the post of Medical Technologist (Laboratory) having requisite qualification of Madhyamik (Secondary)/Higher Secondary with Science along with a certificate of Laboratory Technology from a recognized University or Institution. The post was in the basic pay of Rs.1040-1920 with other admissible allowances. It was stated that the candidates were required to work in any District of West Bengal.

4. Pursuant to the above Memo and receipt of names from Employment Exchange, a written examination was held on August 20, 1995. A list of 1070 candidates was published who had cleared the examination. On August 1, 1996, 4 oral interview of the candidates who had cleared written examination was taken and provisional select list was prepared which was published on December 18, 1998. The empanelment was made on the basis of marks obtained by the candidates at oral interview.

5. The candidates who could not get entry in the select list prepared by the authorities on the basis of marks obtained at oral interview, approached West Bengal Administrative Tribunal, Calcutta by instituting Original Application No. 1023 of 1999. It was contended by them that the authorities had committed an error of law in totally ignoring the marks obtained by candidates at written examination and panel was prepared only on the basis of marks obtained by the candidates at oral interview which was illegal and contrary to law. Preparation of panel, therefore, was arbitrary, unreasonable and was liable to be set aside. Interim order was passed by the Tribunal on April 9, 1999 5 granting liberty to the authorities to make appointment of candidates selected and empanelled subject to the result in Original Application. Liberty was also granted to the parties to move the Tribunal for variation, vacation or modification of the order.

6. Being aggrieved by the interim order dated April 9, 1999 granting liberty to the authorities to make appointment subject to final outcome of the proceedings, the appellants approached the High Court of Calcutta by filing WPST No. 199 of 1999 contending that they had been treated with discrimination and different interim orders were passed in different matters. The petition was disposed of by the High Court by issuing certain directions. The Tribunal was requested to dispose of the main matter expeditiously preferably before January 15, 2000.

7. By judgment and order dated June 30, 2000, main matter was disposed of by the Tribunal. Merit list which was prepared on the 6 basis of marks obtained by candidates at oral interview was set aside and a direction was issued by the Tribunal to prepare fresh merit list of candidates by adding the marks obtained by them in both (i) written examination, and

18. It appears that certain candidates approached this Court by filing Special Leave Petition (Civil) No. (CC) 3728 of 2004 challenging the judgment and order dated August 11, 2003. A two Judge Bench of this Court dismissed the Special Leave Petition as withdrawn on April 29, 2004.

22. On January 06, 2005, again the matter was placed before the Court as per the order dated December 21, 2004. The High Court heard learned counsel for the parties and noted that a panel of 586 candidates had been prepared on the basis of 40% marks obtained both in the written test as well as oral interview. It also observed that sixty-six persons who were appointed should be allowed to be accommodated by granting liberty to the State Government in the manner it thought best without disturbing their seniority or continuity of their service. It directed that the remaining vacancies should be filled up on the basis of seniority position from the panel of 586 candidates. Contempt petition was accordingly disposed of. 19

24. There was long delay of 559 days in approaching this Court by the appellants so far as the order passed in the Writ Petition. On July 15, 2005, notice was issued by this Court on Special Leave Petition as well as on application for condonation of delay. No stay of appointment, however, was granted pursuant to the impugned order of the High court and liberty was granted to the State to make appointments. It was, however, clarified that the appointments if any shall be subject to further orders that may be passed in the Special Leave Petition. The matter was thereafter adjourned from time to time. Affidavits and further affidavits were filed. Considering the nature of litigation and administrative problems of the State Government on one hand and future of several candidates on the other hand, it was thought fit to dispose 20 of the matter finally and accordingly the Registry was directed to place the matter for final disposal on a non-miscellaneous day. That is how the matter has been placed before us.

29. So far as the order dated August 11, 2003 is concerned, it was submitted that certain directions were issued which were complied with by the authorities. The appellants herein did not challenge those directions at that time. In fact, their grievance was that the authorities had not complied with the orders passed in August, 2003 and hence contempt petition was filed after about ten months. The prayer was to implement the order passed by the High Court. Necessary directions were, therefore, issued by the High Court in January, 2005 ordering the authorities to act in accordance with the directions of the Court.

41. Dealing with the selected candidates, the Tribunal stated;

(emphasis supplied)

51. In our considered opinion, the law laid down by this Court in aforesaid and other cases applies to the present situation also. We are of the considered view that it would be inequitable if we set aside appointments of candidates selected, appointed and are working since 1998-99. We, therefore, hold that the Tribunal and the High Court were right in not setting aside their appointments.

(emphasis supplied)

63. In the result, the appeals are partly allowed. Service of 66 candidates who were selected and appointed in 1998-99, whose appointments were initially not challenged and thereafter who were protected by the Tribunal and by the High Court have not been disturbed. The appellants who are similarly situated to 66 respondents who are protected in the present proceedings will be treated at par with those respondents. And if on the basis of merit list prepared as per the order of the High Court, they are found eligible and qualified, the State Government will consider their cases, i.e. the cases of the appellants and will appoint them in accordance with law. Age bar, if any, will not come in the way of those candidates. The said benefit, however, is limited to those candidates who have challenged 46 the selection by approaching the Tribunal, the High Court and this Court. Our directions will not apply to those candidates who have approached this Court for the first time by filing Interim Applications. Their applications, therefore, stand dismissed.

64. On the facts and in the circumstances of the case, there shall be no order as to costs.