ASHIM KUMAR BANERJEE.J: - (1.) PETITIONERS were all having qualifications of BHMS (MD.) being eligible for the post of Lecturer in Homoeopathic Medical Colleges in West Bengal. They all applied for the post of Demonstrator as per advertisement dated July 6, 2002 issued by the Department of Health and Family Welfare. They also deposited requisite fees for the said purpose. Up till 2008 the Public Service Commission (hereinafter referred to as PSC) who published the advertisement and responsible for holding such selection process, did not communicate to the petitioners about the fate of their applications. Vide communication dated April 17, 2008 PSC refunded their fees and thus formally cancelled the process of recruitment in the post of Demonstrator.
(2.) IN the mean time the post of Demonstrator was changed to Lecturer. The petitioner claimed that they should have been considered for the post of Lecturer as per the original advertisement. The authority however declined to act upon such request. The authority filled up the post of the Lecturer by two batches, one by appointing Medical Officers from Health Service on ad hoc basis and thereafter regularizing them and the other batch of freshers through a subsequent advertisement of 2008 and the petitioners were debarred from participating in such process being age barred by that time. They made grievance before the Tribunal unsuccessfully and then before us. On August 1, 2002 the West Bengal State Homoeopathic Health Service Act, 2002 came into force. By the said Act two separate services were formed, West Bengal Homoeopathic Health Service and West Bengal Homoeopathic Education Service. By a further amendment published in the Gazette on September 5, 2007 the said Act of 2002 was amended by amending Section 21 of the said Act making a transitory provision for appointment of teachers. Section 21 as per the original Act and the amendment are reproduced below :- Original section 21. -Notwithstanding anything contained elsewhere in this Act, if the State Government is of opinion that it is necessary so to do in the public interest, it may, by order, elevate or promote any person holding a teaching post in the West Bengal Homoeopathic Education Service to a higher rank or may make recruitment to any teaching post in the West Bengal Homoeopathic Education Service in such manner, and subject to such terms and conditions, as may be prescribed: Provided that no such order shall be made after the expiry of a period of three years from the date of coming into force of this Act.- Amended provision -Notwithstanding anything contained elsewhere in this Act, if the State Government is of opinion that it is necessary so to do in the public interest, it may, by order, elevate or promote any person holding a teaching post in the West Bengal Homoeopathic Education Service to a higher rank or may make recruitment to any teaching post in the West Bengal Homoeopathic Education Service in such manner and subject to such terms and conditions as contained in the Homoeopathy (Minimum Standards of Education) Regulations, 1983, of the Central Council of Homoeopathy: Provided that no such order shall be made after the expiry of a period of six years from the date of coming into force of this Act.- By a subsequent notification dated February 10, 2003 the post of Demonstrator was abolished and was substituted as Lecturer in the said Act of 2002. The petitioners now want that they should be considered for appointment in the post of Lecturer in terms of the earlier advertisement published in 2002 that was not cancelled. Their prayer was declined by the State on two counts: i) The post of Lecturer had been filled up from amongst the Medical Officers working under West Bengal Homoeopathic Health Service by giving ad hoc appointments in 2004 and thereafter regularized through Memo dated June 27, 2008, presumably exercising the power under amended Section 21 of the said Act of 2002. ii) The subsequent advertisement was published on June 28, 2008 for filling up the rest of the post of Lecturer. Those were filled up through a regular recruitment process by another fresh batch of candidates. The petitioners did not appear in the said examination process and as such they could not be considered. Pertinent to note, the petitioners by that time crossed the age eligibility bar. LITIGATION AT The TRIBUNAL
(3.) THE petitioners approached the Tribunal by filing O.A. No.5 of 2009 principally challenging the advertisement published in the newspaper for holding a fresh selection process as well as regularization of the medical officers in the post of Lecturer. THE petitioners- principal contention before the Tribunal as appearing from the judgment and order impugned, was as follows :- i) Since the petitioner challenged an illegality they had locus standi to maintain the same. ii) As per the notification of the Government published in 2002, as also in 2007 West Bengal Homoeopathic Health Service was segregated from Homoeopathic Education Service and the persons working in Health Service could not be appointed in Education Service. iii) THE petitioners being the aspirants for the post of Lecturer were ready and willing to apply for the same pursuant to an earlier advertisement that was cancelled illegally. iv) Advertisement dated June 28, 2008 was prima facie illegal and not in accordance with the Rules of 1983 promulgated by the Central Government for Homoeopathic Health Service and Homoeopathic Education Service. v) As per advertisement of 2008 there was no scope for age relaxation although the Rules would inter alia provide so. The State on the other hand contended before the Tribunal that the petitioner had no right or business to call in question the action taken by the Government. To justify the conduct the learned counsel contended that the affiliation of the Private Homoeopathic Medical Colleges were at stake compelling the Government to take over the management in the interest of the public and the said Act of 2002 as amended in 2007 was promulgated.;