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2012 Supreme(Cal) 536
IN THE HIGH COURT AT CALCUTTA
J. N. Patel, Sambuddha Chakrabarti, JJ.
Dr. Alak Kumar Bera
Vs.
Aritra Chatterjee
A.S.T. 159 of 2012
Decided On: June 25, 2012
Advocate Appeared:
Mr. Arabinda Chatterjee, Mr. Rajarshi Halder, Ms. Kakali Dutta, …for the appellants.
Mr. Subrata Talukdar, Mr. Abdul Momen, …for the State respondents.
Mr. Ashish Sanyal, Mr. Sujan Nayak, Mr. Sujit Sankar Koley, …for the writ petitioners/respondents.
Mr. Indranil Ray, Mr. Ayan Bhattacharjee, …for the respondents no. 13 to 16.
The Trainee Reserve Rules, 2008 were not applicable to the employees belonging to the West Bengal Dental Services.
Headnote:
WEST BENGAL DENTAL SERVICE - SPONSORSHIP CERTIFICATE - RULES OF 2008 - NOT APPLICABLE - WEST BENGAL STATE HEALTH SERVICE ACT, 1990 - SECTION 21 - TRAINEE RESERVE RULES, 2008 - NOT APPLICABLE TO WEST BENGAL DENTAL SERVICE - DISCRIMINATION - NOT PLEADED OR CANVASSED - INTERIM ORDER SET ASIDE.
Fact of the Case:
The writ petitioners, who were members of the West Bengal Dental Service, challenged the non-grant of sponsorship certificates for appearing at the counselling for admission to Post Graduate Medical Degree and Diploma Course. The petitioners contended that the Trainee Reserve Rules, 2008, which were issued under Section 21 of the West Bengal State Health Service Act, 1990, did not apply to them as they belonged to the West Bengal Dental Services. They also argued that the State Government's different cut-off dates and eligibility criteria for employees of the two different services violated Article 14 of the Constitution of India.
Finding of the Court:
The Court held that the Trainee Reserve Rules of 2008 were not applicable to the employees belonging to the West Bengal Dental Services. The Court also held that the point of discrimination between the employees of the two different services was neither pleaded in the writ petition nor canvassed before the learned Single Judge. Therefore, the interim order passed by the learned Single Judge could not be sustained on that ground.
Issues: 1. Whether the Trainee Reserve Rules, 2008 were applicable to the employees belonging to the West Bengal Dental Services? 2. Whether the State Government's different cut-off dates and eligibility criteria for employees of the two different services violated Article 14 of the Constitution of India?
Ratio Decidendi: 1. The Trainee Reserve Rules of 2008 were issued under Section 21 of the West Bengal State Health Service Act, 1990, which empowered the State Government to constitute two health services, namely, West Bengal Medical Education Service and West Bengal Health Service. 2. The West Bengal State Dental Service Act, 2009, had similarly empowered the State of West Bengal to constitute two different services bifurcating the old West Bengal Dental Services. 3. The West Bengal Health Services and West Bengal Dental Services were two distinct services and they were separate in existence. 4. The point of discrimination between the employees of the two different services was neither pleaded in the writ petition nor canvassed before the learned Single Judge.
Final Decision: The Court set aside the interim order passed by the learned Single Judge and allowed the appeal. The Court also extended the time for filing affidavits in the writ petition and requested the learned Single Judge to dispose of the writ petition as expeditiously as possible.
1. The certified copy of the order impugned in this appeal is filed in court today. Let the same be kept on record.
2. This is an application for stay of operation of the order dated April 27, 2012 passed by a learned Single Judge of this court in W.P. 8477 (W) of 2012. By the said order, the learned Single Judge had, inter alia, directed the Director of Health Services, West Bengal, to issue sponsorship certificates provisionally to the writ petitioners, so that the writ petitioners did not find any difficulty at the time of counselling.
3. While hearing the application for stay, we propose to dispose of the appeal itself with the consent of the learned advocates appearing for the parties and by treating the same as on day’s list.
4. The subject matter of challenge in the writ petition is the non-grant of sponsorship certificates for appearing at the counselling for admission to Post Graduate Medical Degree and Diploma Course.
5. In the writ petition, the writ petitioners have, inter alia, prayed for a writ in the nature of mandamus commanding the respondents to allow the writ petitioners to appear at the counselling and to allow them to get themselves admitted to the Post Graduate Course of Master of Dental Surgery for the session 2012 by issuing necessary sponsorship certificates to that effect and a writ in the nature of mandamus commanding the respondents not to give effect or further effect to the Memo dated March 31, 2005. The writ petitioners have, also, prayed for an interim order of injunction restraining the respondents from giving any effect or further effect to the said memo dated March 31, 2005 and also for an order directing the respondents to issue sponsorship certificates to the writ petitioners so that they might appear at the counselling for admission to the Post Graduate Course of Master of Dental Surgery.
6. At this stage, we need not enter into the details of the case. Suffice it to say, the writ petitioners joined the West Bengal Dental Service through Public Service Commission in the year 2009. The fact that the writ petitioners belong to the West Bengal Dental Service is not a matter of dispute and the writ petitioners have many times admitted this fact in their writ petition.
7. The writ petitioners are, however, aggrieved by the notification for admission to the Post Graduate Course of Master of Dental Surgery issued by the West Bengal University of Health Sciences wherein there was a specific stipulation that in-service candidates, who are sponsored by the Department of Health and Family Welfare, Government of West Bengal, are eligible to apply for admission to the said course for the government service-sponsored seats. The candidates applying for those seats are required to produce sponsorship certificates from the competent authority of the Department of Health and Family Welfare, Government of West Bengal, before taking entry at the counselling premises and for the purpose of being considered for admission about his/her eligibility.
8. The writ petitioners’ grievance is that the competent authority of the State of West Bengal has not issued the necessary sponsorship certificates in spite of the fact that they have applied for the same. On such grievance, the writ petitioners have filed the writ petition with the prayers as mentioned hereinbefore.
9. It appears from the order impugned in this appeal that before the learned Single Judge there was two competing documents – one was memo dated March 31, 2005 and the other was a Rule of 2008.
10. It was sought to be contended, as it appears from the order impugned, on behalf of the State respondents that the period of three years should have been completed on the date of the Post Graduate Entrance Examination, which was held on January 22, 2012. Reliance was, accordingly, placed on a memo dated March 31, 2005 issued by the Special Secretary, Department of Health and Family Welfare, Government of West Bengal. The said memo, inter alia, stipulated that t
