S.B. Sinha, J. - (1.) These applications are directed against a judgment and order dated 18.4.2000 passed by the West Bengal State Administrative Tribunal, whereby and whereunder an interim order granted on 3.3.2000 to the effect that the respondents would be allowed to hold the interview and publish result, but no appointment without the leave of the learned Tribunal shall be issued, has been extended. While passing the order dated 3.3.2000, the entire matter was directed to be heard upto 5.4.2000. But when the question as regards extension of the said order came up for consideration, an objection thereto having been raised by the appellant, the matter was heard on 5.4.2000, 7.4.2000 and 12.4.2000, whereupon the order impugned in these applications has been passed. Before the learned Tribunal the applicant - respondent No. 1 prayed for the following reliefs: "(a) an order do issue to rescind/cancel/withdraw it impugned Ordinance 11 of 2000 published in the Extraordinary Calcutta Gazette dated 27.1.2000 with the declaration that the said Ordinance is ultra vires the Constitution of India in general and the W.B. Health Service Act, 1990 in particular and the same is inoperative in the eye of law; (b) a direction do issue upon the respondents that there should not be any selection on the basis of its advertisement dated 6.2.2000 inviting applications for recruitment to the post of RMO-cum-Clinical Tutor/Demonstrator and that any selection pursuant thereto if made already, is illegal, inoperative and cannot be given effect to." The respondent questioned the vires of an Ordinance published in the Calcutta Gazette on 27th January, 2000, whereby and whereunder certain provisions of the West Bengal State Health Service Act, 1990 were sought to be amended. Admittedly, the said Ordinance is no longer in force as in its place and stead, the State has enacted the West Bengal Health Service (Amendment) Act, 2000 which has been published in Calcutta Gazette on 11th April, 2000. The provisions of the said Act are not in question before the learned Tribunal. Before the learned Tribunal only a question was raised to the effect that by reason of the advertisement departures have been made from the earlier recruitment rules and thereby State is tree to appoint any person to the said posts without consulting the Public Service Commission (Recruitment to Teaching Posts) Rules, 1997. It had further been contended that unless and until the appropriate rules are framed, the Advertisement dated 6.2.2000 cannot be given effect to nor any action can be taken by the State pursuant thereto or in furtherance thereof. The learned Tribunal considered various decisions of the Apex Court as regards the matter of grant of injunction and after taking into consideration the question of balance of convenience it was held, "The debatable point is whether such a process is open to arbitrariness and hence anathema to Article 14 of the Constitution of India. So it cannot be said that there is no fair question to be raised at the time of trial. Regarding the question of balance of convenience and inconvenience, the Ld. Advocates of the respondents have very appropriately drawn our attention to the dictum of the apex court in Delhi Development Authority -v. Skipper Construction Co. (P) Ltd. (supra) and Dunlop India Ltd.'s case (supra). The pros and cons of granting injunction have been explained by both Mr. Mitra Ld. Adv. and Mr. Gupta, Ld. Advocate above. Injunction cannot be granted in a mechanical manner. The Court/Tribunal must apply its mind to see what harm it may cause to the other side or to the public interest." The learned Tribunal, inter alia, observed that Section 6 of the Ordinance confers an arbitrary and unguided power and as threatened injury is an irreparable one to the members of the Association, the balance of convenience is in their favour. Ultimately, the learned Tribunal opined, "Thus considering the points and counter-points debated in this case, it can be said that the applicants have prima facie established a case of a threat thereof of irreparable injury and a balance of convenience and inconvenience in favour of granting injunction. Accordingly, we hold that the interim order granted on 3.3.2000 and later extended from time to time will continue till the date which has been fixed for final disposal of the case. As the power of appointment under Section 14 of the amended W.B. State Health Service Act, 1990 (as amended by Sec.2 of the Ordinance II of 2000/W.B. State Health Service (Amendment) Bill, 2000) is going to expire on 24.5.2000, thereof, it is proper that the final date of hearing should be preponed to a date well before 24.5.2000 as the case is mature for final hearing. Accordingly, we prepone the final hearing date from 21.6.2000 to 5.5.2000 for final hearing and disposal."
(2.) Having regard to the fact that the learned Tribunal itself had preponed the hearing from 21.6.2000 to 5.5.2000, normally we would not have entertained this application, but we did so in view of the admitted position that on 5.5.2000, the matter cannot be heard inasmuch as the Administrative Member is going to be retiring in the meantime. In terms of the provisions of the Administrative Tribunal Act, when the matter is required to be heard by a Bench, the same must consists at least by a judicial member as also an administrative member. In that view of the matter, we have heard in details the learned counsel for the parties.
(3.) It is not a dispute that pursuant to the aforementioned advertisement hundred of posts in the posts of Demonstrator/RMO- cum-Clinical Tutor and two hundred posts in the upper tires are to be filled up. If the said posts are not filled up, Medical Institution would suffer irreparable injury and there may be a possibility of de-recognition by the Medical Council of India. It had been submitted by Mr. Mitra, learned Counsel for the petitioner that this application filed by the respondent herein has become infructuous in view of the enactment of the West Bengal State Health Services(Amendment) Act. 2000. Mr. Roy Chowdhury, learned Counsel for the respondent No. 1, on the other hand submitted that a supplementary affidavit has been filed pointing out that such an Act has come into being. According to Mr. Roy Chowdhury, learned Counsel, not only vires of the Ordinance but the entire selection process having been questioned and the learned Tribunal having arrived at a finding that there exists a prima facie case and the balance or convenience is also in favour of the applicant-respondent, this court should not interfere with the impugned order.;