- (1.) The writ petitioner, Smt. Subhra Halder (Dubey), filed the instant writ petition on 26th September, 2011, challenging issuance of a notice dated 23rd September, 2011, which was issued on behalf of the District Magistrate and Collector, Murshidabad, directing her to appear before the District Magistrate, Murshidabad, at his office chamber on 29th September, 2011 at 10.30 a.m. for a hearing. The hearing was in connection with an order passed by this Court on 20th September, 2007, in another writ petition, being W.P. No. 6354 (W) of 2007. The writ petitioner, in that matter, was the private respondent No. 6 in the instant writ petition, namely, Tajmira Khatoon. Incidentally, the writ petitioner herein, Smt. Subhra Halder (Dubey), was the private respondent No. 12, in that writ petition. The Court, while passing the order dated 20th September, 2007, had directed the District Magistrate, Murshidabad, to consider the representation of Tajmira Khatoon, whose primary grievance was that in spite of having secured the highest marks, she was not chosen as the successful candidate for the post of 2nd Auxiliary Nurse Midwives (ANM) at Gholla sub-centre of Health, Beldanga--II Block, Murshidabad. By the time the instant matter was taken up for consideration by this Court, the hearing had already taken place and an order was passed by the District Magistrate, Murshidabad, on 29th September, 2011. The said order of the District Magistrate, Murshidabad, was allowed to be brought on record by the writ petitioner in the instant matter by means of a supplementary affidavit, pursuant to leave granted on 29th November, 2011. The matter has now been heard at length and all parties have advanced their respective submissions.
(2.) The central issue in controversy is in respect of the selection process for the post of 2nd Auxiliary Nurse Midwives (ANM) for Gholla sub-centre of Health, falling under the jurisdiction of Sompara-II Gram Panchayat, Beldanga-II Block, situated in the district of Murshidabad. The writ petitioner and the private respondent No. 6, Tajmira Khatoon, were amongst thirteen candidates who had participated for the post-in-question. The writ petitioner, Smt. Subhra Halder (Dubey), scored 42.33 percent marks. On the other hand, the private respondent No. 6, Tajmira Khatoon, had a higher score of 53.50 percent marks, but was not empanelled on the ground of non-submission of residential proof. As such, the writ petitioner, Smt. Subhra Halder (Dubey), in spite of having obtained a lower score, was selected for being appointed to the post-in-question. As observed hereinbefore, the private respondent No. 6 had approached this Court earlier by filing a writ petition which was disposed of on 20th September, 2007, with certain directions upon the District Magistrate, Murshidabad, pursuant whereof the order dated 29th September, 2011 was passed. While passing the order dated 29th September, 2011, the District Magistrate, Murshidabad, had considered all relevant facts and record and came to the following conclusions:- Now all the documentary papers are examined and verified with their originals and the following findings are derived: 1) The petitioner, Tajmira Khatun filed application on 1.11.2006 following the advertisement. No proof of residential status in found tagged with the application form, though she has claimed that she submitted a copy of her Voter Identity card as stood on 1.1.2006 with her application along with other requisite papers. 2) The private respondent, Subhra Dubey (Halder) submitted her application on 31.10.2006. The application contains a copy of her Voter Identity card as stood on 01.01.2006 along with other requisite papers. 3) The register of application reveals that 13 nos. of candidates submitted applications for the post of 2nd ANM for Gholla S.C. It appears that Subhra Dubey (Halder) was kept in 1st position with 42.33% of Score and one Sahanara Khatun was placed as 2nd with 39.44% of Score in order of merit. The entries in the register is unsigned and unauthenticated and it is found that all other candidates were not considered for selection for one or other reason though eight candidates Scored higher marks than the private respondent, Subhra Dubey (Halder). The reasons of non-consideration of the candidature of higher Scoring candidates in four cases were mainly for non-submission of residential proof. The petitioner, Tajmira Khatun was not empanelled on grounds of non-submission of residential proof though she was the highest Scorer with 53.50% marks in order of merit. 4) The then Block Level Selection Committee Selected Subhra Dubey (Halder) as the topper but there is no proof that proper scrutiny of the applications was done by the Block Level Selection Committee and they took no resolution to complete the process of selection. 5) The appointment issued in favour of Subhra Dubey (Halder) is a wrongful act as it violets the very operative direction of the Hon'ble High Court given through order dtd. 20.9.07 in W.P. No. 6354 (W) of 2007. Hence, the wrong done in any strata of the process of Selection can not be allowed to continue. Under the above stated facts and circumstances I am constrained to state that the Selection process in selecting Subhra Dubey (Halder) for the post of 2nd ANM for Gholla S.C. under Beldanga-II Block was not fair and not done according to norms and guidelines issued by the Health and Family Welfare. Department, Govt. of West Bengal. The Block Level Selection Committee failed to discharge their duty properly, and it was not beyond doubt that there was a manipulation in selecting the candidate for 2nd ANM. Hence, it is ordered that the selection of Subhra Dubey (Halder) for the post of 2nd ANM for Gholla Health Sub-centre is null and void. The Block Medical Officer of Health, Beldanga-II is directed to terminate the provisional appointment on contractual basis issued in favour of Subhra Dubey (Halder) and take her back from duty. The Block Development Officer, Beldanga-II who is the Chairman of the B.L.S.C. is directed to select the Writ Petitioner, Tajmira Khatun for the post of 2nd ANM for Gholla S.C. and send here name for sending training through the process of selection as per norms within 30 days of receipt of order. The matter is thus disposed of.
(3.) The learned senior advocate appearing on behalf of the petitioner assails the finding of the District Magistrate, Murshidabad. He submits that the private respondent No. 6, Tajmira Khatoon, cannot be selected for appointment for the post-in-question since it is the admitted fact that she had not submitted her residential proof along with her application. According to him, one of the essential conditions for being considered as eligible for the post-in-question is that a candidate is required to submit her residential proof along with her application and that the District Magistrate, Murshidabad ought to have considered this aspect of the matter before passing the order on 29th September, 2011. In this context, he relies on the observation made by this Court in a recent judgment rendered on 14th August, 2012, in the case of Dr. Md. Suraborddin Khan vs. State of West Bengal and Ors. in W.P. 17971 (W) of 2012.;