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IN THE HIGH COURT OF CALCUTTA
Patherya and Tapash Mookherjee, JJ.
State of West Bengal and others - Appellants
Versus
Somashree Khatun - Respondent
MAT 1421 of 2013 With CAN 10184 of 2013
Decided on : 06-12-2013
For the Appellants :Mr. Biswajit De, Ms. Shabana Hasin, Advocates.
For the Respondent:Mr. Debabrata Saha Roy, Mr. Indranath Mitra, Advocates.
THE CERTIFICATE ISSUED BY THE COUNCILLOR WAS NOT PROOF OF RESIDENCE OF THE RESPONDENT NO. 1/WRIT PETITIONER.
Headnote:
CERTIFICATE FOR NURSING ADMISSION - CRITERIA - DEFECT - CURABILITY - ACT-SECTION REFERRED: NIL - THIS APPEAL IS DIRECTED AGAINST THE ORDER DATED 13TH AUGUST, 2013 PASSED BY THE LEARNED SINGLE JUDGE IN W.P. 23989(W) OF 2013 WHEREBY THE LEARNED SINGLE JUDGE HELD THAT AS THE CHAIRMAN OF THE MUNICIPALITY AS WELL AS M.L.A., IN WHOSE CONSTITUENCY THE PETITIONER RESIDES, HAD SUBMITTED THE CERTIFICATE, THE ELIGIBILITY CRITERIA HAD BEEN FULFILLED BY THE RESPONDENT NO. 1/WRIT PETITIONER AND THE DEFECT CURED.
Fact of the Case:
THE ADVERTISEMENT FOR ADMISSION TO THE GENERAL NURSING & MIDWIFERY (G.N.M.) COURSE WAS PUBLISHED. BY CLAUSE 7 IT WAS MANDATED THAT THE APPLICATIONS BE ACCOMPANIED BY ORIGINAL OR PHOTOSTAT COPIES OF THE DOCUMENTS. ONE OF THE REQUIREMENTS, WAS THE RESIDENTIAL CERTIFICATE, ISSUED BY THE CHAIRMAN OF THE MUNICIPALITY. IN THE CASE OF THE RESPONDENT NO. 1/WRIT PETITIONER, AS SHE IS THE RESIDENT OF KRISHNA NAGAR MUNICIPALITY, THE CHAIRMANS CERTIFICATE WOULD BE NEEDED BUT WHILE SUBMITTING HER APPLICATION, THE RESPONDENT NO. 1/WRIT PETITIONER SUBMITTED A CERTIFICATE, ISSUED BY THE COUNCILLOR OF WARD NO. 15 OF THE SAID MUNICIPALITY, WHICH IS CONTRARY TO THE CRITERIA SET OUT IN THE ADVERTISEMENT.
Finding of the Court:
THE COURT HELD THAT THE CERTIFICATE ISSUED BY THE COUNCILLOR WAS NOT PROOF OF RESIDENCE OF THE RESPONDENT NO. 1/WRIT PETITIONER. THE PLEA OF SUBMITTING ALL DOCUMENTS ON EARLIER OCCASION AND THEREFORE THE AUTHORITIES BEING AWARE OF THE RESIDENCE OF THE RESPONDENT NO. 1/WRIT PETITIONER WILL BE OF NO ASSISTANCE TO THE RESPONDENT NO. 1/WRIT PETITIONER AS THE RECORDS OF EARLIER PROCEEDINGS WAS NOT A PART OF THE PRESENT SELECTION PROCESS AND NONE OF THE CANDIDATES IS A FAVOURED CANDIDATE OF THE APPELLANT, THE STATE. THEREFORE, BASED ON THE ADVERTISEMENT, THE APPLICATION HAS TO BE CONSIDERED, MAY BE YEAR AFTER YEAR.
Issues: WHETHER THE CERTIFICATE ISSUED BY THE COUNCILLOR WAS PROOF OF RESIDENCE OF THE RESPONDENT NO. 1/WRIT PETITIONER.
Ratio Decidendi: THE COURT HELD THAT THE CERTIFICATE ISSUED BY THE COUNCILLOR WAS NOT PROOF OF RESIDENCE OF THE RESPONDENT NO. 1/WRIT PETITIONER. THE PLEA OF SUBMITTING ALL DOCUMENTS ON EARLIER OCCASION AND THEREFORE THE AUTHORITIES BEING AWARE OF THE RESIDENCE OF THE RESPONDENT NO. 1/WRIT PETITIONER WILL BE OF NO ASSISTANCE TO THE RESPONDENT NO. 1/WRIT PETITIONER AS THE RECORDS OF EARLIER PROCEEDINGS WAS NOT A PART OF THE PRESENT SELECTION PROCESS AND NONE OF THE CANDIDATES IS A FAVOURED CANDIDATE OF THE APPELLANT, THE STATE. THEREFORE, BASED ON THE ADVERTISEMENT, THE APPLICATION HAS TO BE CONSIDERED, MAY BE YEAR AFTER YEAR.
Final Decision: THE APPEAL IS ALLOWED AND DISPOSED OF ALONGWITH THE CONNECTED APPLICATION BEING CAN 10184 OF 2013.
The order under appeal is dated 13th August, 2013 whereby the Trial Court held that as the Chairman of the Municipality as well as M.L.A., in whose constituency the petitioner resides, had submitted the certificate, the eligibility criteria had been fulfilled by the respondent no. 1/writ petitioner and the defect cured. Therefore, the respondent no. 1/writ petitioner ought to be allowed to participate in the selection process.
2. Counsel for the appellants submits that the advertisement for admission to the General Nursing & Midwifery (G.N.M.) course was published. By Clause 7 it was mandated that the applications be accompanied by original or photostat copies of the documents. One of the requirements, was the residential certificate, issued by the Chairman of the Municipality. In the case of the respondent no. 1/writ petitioner, as she is the resident of Krishna Nagar Municipality, the Chairmans certificate would be needed but while submitting her application, the respondent no. 1/writ petitioner submitted a certificate, issued by the Councillor of Ward No. 15 of the said municipality, which is contrary to the criteria set out in the advertisement. Therefore, her candidature was not considered and she was not called for the interview. This non-call to interview was challenged in W.P. 23989(W) of 2013 by the candidate, respondent no. 1/writ petitioner and after considering the submissions of the parties the Trial Court held that in view of the subsequent certificate, issued by the concerned authorities, the same ought to be accepted. As the defect had been cured the respondent no. 1/writ petitioner ought to be permitted to participate in the selection process after satisfying the eligibility criteria. Admittedly the said order is contrary to the terms of the advertisement and as held in 2011 (12) SCC 85 (Bedanga Talukdar v. Saifudaullah Khan & Ors.), 2007 (4) SCC 54 (Ashok Kumar Sonkar v. Union of India) and 2012 (9) SCC 545 (State of Gujrat v. Arvind Kumar T. Tiwari) the order under appeal ought to be set aside.
3. Opposing the said appeal it has been submitted on behalf of the candidate, respondent no. 1/writ petitioner, that the decisions cited are distinguishable on facts. In the reported decisions, on the date of advertisement, the candidate was not qualified, therefore, the criteria could not be relaxed. Such is not the case here as the candidate, respondent no. 1/writ petitioner, was a resident of the area and she had participated on earlier occasions for the same course and the interview letter was also issued at the said address. Therefore, it was well within the knowledge of the authorities that she was a resident of the said area and, submission of the certificate, issued by the Chairman of the Municipality was only a technical flaw as stated by the Trial Court which could have been cured. Therefore the direction of the Trial Court to cure such defect was justified, and the order under appeal calls for no interference. In fact, on an earlier occasion the Additional District Magistrate had issued the certificate and, on the basis thereof, the respondent no. 1/writ petitioner was called for the interview. The Chairman is also a Councillor of the Municipality. Therefore, the issuance of the certificate by the Councillor ought not to be ignored when on a subsequent date the certificate, issued by the Chairman, has been submitted. It involves the career of a student and therefore the order under appeal ought to be upheld.
4. Having considered the submissions of the parties the document that calls for scrutiny is advertisement for admission to the General Nursing & Midwifery (G.N.M.) course. It is true that 2.5% seats was reserved for Lady Civil Defence Volunteers under Home (Civil Defence) Department, Government of West Bengal. It is also true that a candidate must be a citizen of India and a permanent resident of West Bengal for at least five years. The Clause which is of most importance is Clause 7 and sub Claus
