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IN THE HIGH COURT OF TRIPURA AT AGARTALA
ARINDAM LODH, J.
Malabika Shil - Appellant
Versus
The Tripura Public Service Commission and Ors - Respondent
WP(C) No. 1310 of 2017
Decided On : 27-11-2019
Dental Surgeon - Legality of Notification - Dentists Act 1948, Sections 46, 48 - The court discussed the legality of notifications cancelling the recommendation of the petitioner for the post of Dental Surgeon, Ex-cadre, and the requirement of a Registration Certificate under the Dentists Act 1948. The court highlighted the legal provisions of Sections 46 and 48 of the Dentists Act 1948 and their interpretation in relation to the appointment process, and concluded that the notifications were quashed and set aside.
Fact of the Case:
The petitioner challenged the legality of notifications cancelling her recommendation for the post of Dental Surgeon, Ex-cadre, due to the absence of a Registration Certificate.
Finding of the Court:
The court found that the petitioner had acquired the required educational qualification as of the date of application and that the requirement of a Registration Certificate for appointment did not apply to the selection process.
Issues: The issues included the legality of the notifications, the distinction between recruitment/selection and appointment, and the applicability of Sections 46 and 48 of the Dentists Act 1948.
Ratio Decidendi: The court held that the requirement of a Registration Certificate for appointment did not apply to the selection process, and the notifications were quashed and set aside.
Final Decision: The court directed the TPSC to recall its notifications and the respondents to act in accordance with the memo for providing all service benefits to the petitioner within two months.
JUDGMENT :
ARINDAM LODH, J.
1. By means of filing the present writ petition, the petitioner, Smt. Malabika Shil has challenged the legality and propriety of Notification dated 09.12.2016 of reference No. F.11(26-17)-Rectt./TPSC/2013 and Notification dated 23.06.2017 of reference No. F.11(26-17)-Rectt./TPSC/2013.
2. The brief facts, arising out of the writ petition are that admittedly the petitioner had successfully completed her final BDS Examination in the year 2015. Having obtained the degree of BDS, the petitioner, pursuant to an Advertisement No. 06/2016 dated 30.06.2016 for appointment to the post of Dental Surgeon, Ex-cadre, had submitted application for the said post. The relevant portion of the advertisement related to the post of Dental Surgeon, in Item No. 01 is extracted here-in-below, for convenience:
Educational Qualifications:
(a) Essential:- A recognized Dental qualification included in Part-I & III of the Schedule of the Dentist Act, 1948, as appended to this schedule.
(b) Preferable: (i) Recognized post-graduate degree as appended to this schedule.
(ii) Working knowledge of Bengali."
3. The petitioner had appeared at the screening(written) test and thereafter appeared for interview. Accordingly, the result was published by Notification dated 13.04.2017, in which the name of the petitioner was found at Sl. No. 15 in order of merit, out of 23 selected and recommended candidates.
4. The respondents No. 1 and 2, i.e. the TPSC had issued a Notification dated 23.06.2017, wherein the recommendation in respect of the petitioner for being appointed as Dental Surgeon, Ex-cadre was cancelled on the ground that as on the last date of receipt of application i.e. 30.07.2016 she was not having the required Registration Certificate for being eligible to get appointed to the post of Dental Surgeon, Ex-cadre. The said Notification dated 23.06.2017 is reproduced here-in-below, for convenience, in extenso:
No. F.11(26-17)-Rectt./TPSC/2013
Dated, Agartala, the 23rd June, 2017
Reference:- Advertisement No. 06/2016(Item No. 01), dated 27.06.2016 Notification dated 07.11.2016, Notification dated 09.12.2016, Notification dated 17.03.2017 and Notification dated 13.04.2017.
Whereas, Dr. Malabika Shil D/O.- Ranjit Kumar Shil, Sripalli, Badharghat, PO-Madhuban, Dukli, PS-A. D Nagar, Dist.-West Tripura, Pin-700003, Roll No. 00163(UR) was recommended by the Commission for the Post of Dental Surgeon, Ex-cadre under Health & Family Welfare Department, Govt. of Tripura;
And
Whereas, on further scrutiny it is found that Dr. Malabika Shil D/O.- Ranjit Kumar Shil, Sripalli, Badharghat, PO.- Madhuban, Dukli, PS-A.D. Nagar, Dist.-West Tripura, Pin-799003, Roll No. 00163(UR) does not possess required qualification to be eligible on the last date of receipt of application(i.e. 30.07.2016). As per section 46 & 48 of Dental Act 1948 and revised BDS course regulations, 2007, registration under Dental Council is compulsory for being eligible for the post of Dental Surgeon.
Now, therefore, the Commission is pleased to treat the recommendation in respect of Dr. Malabika Shil as cancelled.
Sd/-
(S. Riyan)
Secretary,
Tripura Public Service Commission"
5. On 03.07.2017, the petitioner had submitted a representation to the Secretary, Tripura Public Service Commission, Agartala stating inter alia that being called on by the Health & Family Welfare Department for verification of all the relevant original documents, she had produced all the relevant documents, as sought for by the concerned authority, but, even after elapse of 3 months, she was not communicated about the latest status of her selection and appointment, neither from the TPSC nor from the Health & Family Welfare Department, Government of Tripura. In response
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