PRATAP KUMAR RAY,J. - (1.) Heard the learned Advocates appearing for the parties.
(2.) Assailing the order dated 2nd July, 2009, passed by the learned Trial Judge in W.P. 21297 (W) of 2007, this appeal has been preferred. The impugned order reads such: "Way back on 3rd September, 2007 an ad interim order was passed by this Court (Dipankar Dutta, J.) on the writ petition by the District Magistrate, Murshidabad on 27.8.2007. By that order the District Magistrate, Murshidabad thought that he should choose the other candidate namely, the 10th respondent herein, Maina Bibi to be more eligible purely on the ground that Maina Bibi was older than the writ petitioner. Though in all respects, the writ petitioner was fully qualified for appointment as Auxiliary Nurse and Mid-wife. There is no doubt, however, that on the basis of an advertisement, the petitioner applied for the job of Auxiliary Nurse and Mid-wife which is required by the Sub-Centre in the District of Murshidabad. The petitioner in fact applied for the job by way of an application on the basis of the notification issued by the authority concerned to that effect. The petitioner pursuant to her application appeared for the interview before a Screening Committee for the job after submission of relevant papers from her end which were asked for by the authority concerned. The petitioner was sent for necessary training to the SSKM Hospital, Calcutta and on that basis she joined the Hospital on 18th April, 2007 and successfully completed the training. While the petitioner was awaiting appointment since she completed her training successfully after being selected for the job as above, the 10th respondent herein, namely Maina Bibi initiated a proceedings (W.P. No. 5417 (W) of 2007 Maina Bibi v. State of West Bengal and Ors. ), making the petitioner herein, the private respondent. The writ petition of Maina Bibi, however, was disposed of by this Court by an order dated 16th May, 2007 whereby the District Magistrate, Murshidabad was asked to consider the case of Maina Bibi. The District Magistrate considered the case of Maina Bibi after affording an opportunity of hearing to the private respondent, namely the petitioner herein. The only point that had to be considered by the District Magistrate was whether the petitioner was a resident where the concerned Sub-Centre was situated. The District Magistrate, however, as aforesaid, passed the impugned order on 27th August, 2007 holding that though the petitioner and the 10th respondent herein had the identical status, since the 10th respondent was older than the writ petitioner, the District Magistrate directed that the writ petitioner "should be called back" and replaced by Maina Bibi, the 10th respondent herein. Nobody has any doubt that the selection of the writ petitioner was in accordance with the procedures made by the Screening Committee and that the petitioner was the most eligible candidate for such selection and that the petitioner completed the training as aforesaid for the job successfully. I have considered the impugned order of the District Magistrate, Murshidabad and I am at a loss to appreciate as to what prompted the District Magistrate to pass the order as he did in the facts and circumstances of the case before me. The District Magistrate thought that the 10th respondent was a better candidate simply because the 10th respondent, according to the District Magistrate was older than the writ petitioner and that was the most important qualification, the 10th respondent had in succeeding before the District Magistrate. In my opinion, in passing that order, the District Magistrate concerned took into account most irrelevant considerations which he was authorised to take into account leaving out the most relevant considerations, namely that the petitioner was a duly qualified candidate who was duly selected for the job by the Screening Committee in complete compliance of the procedures for such selection. It should take this Court long to set aside the order of the District Magistrate without any hesitation. Thus, the order of the District Magistrate dated 27th August, 2007 is set aside and as a natural consequence the petitioner should immediately be engaged or appointed as duly qualified Auxiliary Nurse and Midwife in the concerned Sub-Health Centre within two weeks from the date of communication of this order. Needless to mention, that in spite of service upon all the concerned respondents including the private and the State respondents the writ proceedings has remained uncontested. Neither the State respondents nor the private respondent have or has used any opposition to this writ petition. The State respondents, I quite appreciate, has no stake in this matter as the writ petitioner was duly selected by the Screening Committee and as such after completion of her training was awaiting appointment. The private respondent also did come forward to contest this proceedings although directions for affidavits were given in the past in fact for more than one occasion and the Hon'ble Judge in fact while passing the order dated 3rd October, 2007 was pleased to observe that the writ petition should be treated as ready for hearing on the expiry of the period fixed for exchange of affidavits. However, I have considered the merits of the writ petition in spite of the failure of the respondents to use affidavits and set aside the impugned order of the District Magistrate, Murshidabad for the reasons mentioned above. The writ petition is disposed of. There will, however, be no order as to costs. For the sake of communication and compliance, let xerox plain copy of this order, duly countersigned by the Assistant Registrar (Court) or the Assistant Court Officer be given to the learned Advocates for the parties upon usual undertakings."
(3.) In the writ application the decision of District Magistrate, Murshidabad dated 27th August, 2007 was under challenge which was passed on 20th June, 2007. The said order reads such: "Hearing of the Petitioner Maina Bibi v. State of West Bengal and other Respondents. In compliance with the order of the Hon'ble High Court, Calcutta passed on 16.05.2007 kin connection with W.P. No. 5417 (W) of 2007 Maina Bibi Petitioner v. State of West Bengal and Others , the matter was taken up for hearing on 20.06.2007. The petitioner, Maina Bibi responddon no. 10 Kamrunnesha and B.D.O, Bhagawangola - II also a respondent are present and heard all the parties. Examined the documents and records submitted by them B.D.O. Bhagwangola-II is asked to submit a report in this regard to enable the undersigned to take final decision in the matter. Received the report of the B.D.O. Bhagwangola-II on careful examination of the report it reveals that the two candidates - the petitioner (Maina Bibi) and the report no.10 (Kamrunnesha) are evently poised in respect of their fitness for the post of 2nd ANM for the no.1 Akheriganj G.P.H.Q. Sub-Centre, so far as their educational qualification and residential status are concerned. Only in respect of age Maina Bibi, the petitioner is senior to Kamrnnesha (Respondent no.10) by more than 4 years. On this ground of seniority in age alone. I consider Maina Bibi, the petitioner is senior to Kamrunnesha (Respondent no.10) by more than 4 years. On this ground of seniority in age alone. I consider Maina Bibi, the petitioner a shred more deserving to be selected as 2nd ANM for the no.1 Akheriganj G.P.H.Q. Sub-Centre. As such Kamrnnesha who is already undergoing training is hereby ordered to be called back replaced by Maina Bibi. Let the copy of this order be served upon all concerned. Sd/-District Magistrate,Murshidabad. Dated 27.08.2007.";