Sambuddha Chakrabarti - (1.) A disgruntled writ petitioner aggrieved by exclusion of her name from a panel prepared for the appointment of Auxiliary Nurses and Midwife (hereinafter referred to as 'the ANM') Training Course for a certain center and selection of the name of the respondent no. 10 to the writ petition has filed the present application under Article 226 of the Constitution of India inter alia praying for a writ in the nature of Mandamus commanding the respondents to allow or recruit the petitioner to undergo the ANM Training Course for the relevant sub-center after discarding the name of the respondent no. 10, a writ in the nature of Certiorari quashing the order dated September 7, 2009 passed in favour of the respondent no. 10 for the said Training Center.
(2.) THE case as made out by the petitioner was that she had passed the Madhyamik examination in the year 1999 in the 2nd Division. She secured 422 marks out of a total of 800 marks which came to 52.75 per cent. She was the permanent resident of Village Kararpara, Bajeprotap under Block Amta I, Howrah. She has various documents in support of her residential address. On July 29, 2008 an advertisement was issued by the Department of Health and Family Welfare, Government of West Bengal, inviting applications from married women in the age group of 25 to 35 and a resident of one of the villages comprising the relevant sub-center for selection of trainees under ANM course inter alia for Bajeprotap subcenter. THE petitioner applied for the said post. THE list of successful candidates for the said training course was published and a panel was prepared. THE petitioner's name was at serial no. 1 of the three selected candidates and as such she was waiting for her final call for the said training course. But she ultimately received no such intimation. THE petitioner's assertion is that a surreptitious device had been adopted to discard her name on the plea of her lack of residential qualification. THE petitioner made a representation to the Block Development Officer, Amta and to various other authorities. The higher officials of the Government of West Bengal directed the Sub Divisional Officer, Uluberia to look into the matter and to furnish a report on the complaint of the petitioner. On an information that the name of the petitioner had been substituted by some other person she made another representation to the District Magistrate, Howrah narrating all the facts and requesting for initiating an immediate action. This was followed by yet another representation dated February 16, 2009. In this representation she mentioned the name of respondent no. 10 as substituting her and she had in fact moved various authorities for the redressal of her grievances but her efforts did not produce any substantial result. As a result she moved a writ petition challenging the selection of the respondent no. 10 in her place. That writ petition was disposed of by a single Judge of this Court directing the District Magistrate, Howrah to give a hearing to the petitioner as also the respondent no. 10 and to pass a reasoned order and to communicate the result of the hearing to her. The petitioner states that before the District Magistrate, Howrah the State respondents have taken a plea which was very different from the one taken by them in this Court. Before the District Magistrate it was claimed that the respondent no. 10 had secured 61.12 per cent marks which was the highest marks obtained by any candidate and that justified the selection of the said respondent for the relevant training course. The petitioner has challenged the residential qualification of the respondent no. 10. According to her the respondent no. 10 was a resident of Ballychak, Dakshinpara and as such she was not entitled to apply. The petitioner was asked to attend the bungalow chamber of the District Magistrate, Howrah on August 10, 2009. The private respondent was also directed to attend the said hearing. This hearing was deferred to August 12, 2009 and the District Magistrate directed the petitioner to serve a copy of the writ petition to the respondent no. 10 and the respondent no. 10 in her turn was directed to submit all papers and documents in support of her contention. The petitioner's further case is this that by a letter dated August 21, 2009 the District Magistrate, Howrah had intimated her that the order-sheet of the hearing taken by him in this connection was sent to the respondents nos. 6 and 7 for taking immediate action. The order dated September 1, 2009 revealed that the District Magistrate had fixed hearing on September 7, 2009 and directed for fresh service of notice upon the petitioner and the respondents nos. 6, 7 and 10 were also asked to remain present on the said date. The respondent no. 10 had filed a written deposition without serving any copy upon the petitioner. When the petitioner obtained a copy of the order dated September 7, 2009 she found that the Sub Divisional Officer, Uluberia had submitted a report which was perused and was made a part of the proceeding. This report was neither disclosed at the hearing nor was the petitioner given a copy thereof. The said order further revealed that the representation made by the Joint Block Development Officer, Amta I Block was heard and considered wherein it was alleged that a draft panel was published by the respondent no. 6 inviting claims and objections. The respondent no. 10 had filed an objection. The said order recorded that the respondent no. 10 had secured 61.12 per cent marks excluding the marks obtained in the additional subject and it was observed that the selection of this respondent for undertaking the concerned training course was valid. The said order further mentioned that a final list ought to have been published formally after due modification. Therefore, the respondent no. 6 and the Chairman of the Selection Committee were directed to enquire and fix the responsibility for the omission of the name of the respondent no. 10 from the draft panel. This order was communicated to the petitioner by the respondent no. 5 which has been impugned in the writ petition. On behalf of the State respondents the respondent no. 7 has affirmed the affidavit-in-opposition. It has been specifically stated in the said affidavit that during the visit to the petitioner's house it was found vacant and the neighbours had disclosed that the petitioners resided at Amta, i.e., beyond the command area of Bajeprotap sub-center. It has also been stated that on the basis of the enquiry report the Sub Divisional Officer, Uluberia had mentioned in his report that the petitioner was indeed a resident of the service area of Bajeprotap sub-center and it was further mentioned that regarding the selection of the petitioner criteria of residence did not arise at all. The petitioner was not selected on the ground of securing lesser marks than the other candidates. In the final panel for selection of the third batch of trainees of ANMs for the said sub-center the respondent no. 10 got the highest marks and secured first position in the panel. The other two candidates got less than the respondent no. 10 and secured the second and third positions respectively in the final panel. The petitioner with 49.25 per cent marks could not secure any position in the final panel. The State respondents had also filed Supplementary Affidavit-inOpposition incorporating the relevant documents and some more relevant statements. The specific case made out in the Supplementary Affidavit is that the writ petitioner along with the respondent no. 10 and others applied for selection to the post of the Second ANM. As the petitioner was the resident of village Kanrapara within Ballychak Gram Panchayat which is within the command area of Bajeprotap sub-center her name was enlisted in the draft panel and the name of the respondent no. 10 was mistakenly included in the Ballychak sub-center instead of the Bajeprotap sub-center although she was a resident of Ballychak village within the command area of Bajeprotap sub-center. The respondent no. 10 raised an objection to the Block Development Officer, Amta I Development Block. The matter was enquired into and the objection was found to be a valid one. Mistakes during the preparation of the draft panel were rectified and a final panel was prepared on November 21, 2008 wherein the respondent no. 10 topped the list. Subsequently, when the matter was considered afresh by the District Magistrate, Howrah in terms of the order passed by this Court the reasons for selecting the private respondent and for not selecting the writ petitioner was properly stated. The respondent no. 10 obtained 61.12 per cent marks whereas the petitioners secured 49.25 per cent marks and as such the writ petitioner was not entitled to be selected for the post of the Second ANM. It has also been asserted that when the mistake of including the name of the respondent no. 10 in the Ballychak sub-center was detected her name along with those of other applicants who were mistakenly included in other sub-centers were deleted from the wrong sub-centers and were included in the panel prepared for the appropriate sub-centers. The respondent no. 7 has further stated very specifically that the marks obtained in the Madhyamik or equivalent examinations was the final criteria and the writ petitioner having secured lesser marks than that of respondent no. 10 could not be selected. The Supplementary Affidavit has repeated that in course of hearing given by the District Magistrate the reasons for selecting the respondent no. 10 was disclosed to the writ petitioner and the writ petitioner is aware that the respondent no. 10 had obtained 61.12 per cent marks in the Madhyamik examination. It has been contended that the dispute regarding residence raised in the writ petition was not the subject-matter of the present case was not reason for not selecting the writ petitioner for the post of Second ANM. The affidavit has described the mistake in recording the particulars of the applicants for selection of the Second ANM as bona fide and for this mistake the petitioner cannot get any advantage to be enlisted at the top of the panel. According to the affidavit-in-opposition the writ petition was totally frivolous and should be dismissed.
(3.) THE petitioner had initially affirmed an affidavit-in-reply to the affidavit-in-opposition filed by the State denying the earlier contention of the State that the petitioner was beyond the command area of Bajeprotap sub-center. THE petitioner also maintained that in the affidavit-inopposition there was no whisper as to the area covered under which subcenter the respondent no. 10 belonged to. THE writ petitioner had denied the contention that for selection for Second ANM residential criteria did not arise. Moreover, the opposition was silent about the dispute relating to the residential address and service area of the respondent no. 10 and why the panel was published in the notice board of Amta Gram Panchayat Hospital in November, 2008. According to the writ petitioner the main question was whether the publication of the panel was necessary and whether the subsequent alleged panel where the name of the petitioner was not there was at all published or not. When the learned Advocate for the State had prayed for liberty to file the supplementary affidavit-in-opposition there was no objection from the petitioner's side. The petitioner also was granted an opportunity to file a supplementary affidavit-in-reply within one week from the date of filing of the supplementary affidavit-in-opposition and after the supplementary affidavit-in-opposition was filed Mr. Subhas Chandra Basu, the learned Advocate appearing for the writ petitioner categorically submitted that the petitioner was not willing to file any supplementary affidavit-in-reply to the said affidavit-in-opposition.;