Mamun Shaikh vs State Of West Bengal And Others

Protik Prakash Banerjee, J

The writ petitioner has approached this Court under Article 226 of the Constitution of India, 1950 against an order of termination dated August 17,

2018 passed by the District Recruitment Committee & Executive Committee, South 24 Parganas praying for the setting aside of the said order of

termination from service and reinstatement to his erstwhile position.

By a Memo No. CMOH(SPG) DH & FWS/5395 dated December 29, 2015 the District Health & Family Welfare Samity, South 24 Parganas from

the office of the Chief Medical Officer of Health published an advertisement on their website and initiated the process of appointment for different

posts under the National Health Mission (NHM), Department of Health & Family Welfare, Government of West Bengal.

The said advertisement constitutes a binding representation made to the public by the respondent authorities. The representation made to the public

so far as the essential conditions of eligibility were concerned, for the post of Senior Treatment Supervisor, comprised, inter alia, the following: -

“(1) Bachelor Degree OR Recognized Sanitary Inspector’s Course. (2) Certificate course in computer operation (minimum 2 months). (3)

Permanent two-wheeler driving & should be able to drive two-wheeler (with gear).â€​

It shows, at one go, that any person who had either the educational qualification of a bachelor degree or a recognized sanitary inspector’s

course, was eligible to apply. It also shows that the authorities were aware of the meaning of the word “Or†as distinguished from “&â€, and

that in the former case, either qualification would do and in the latter case, not just possession of a driving licence BUT ALSO the person having the

licence must be able to drive the two-wheeler. In other words, the use of the word ‘OR’ was clearly a representation that it was an alternative

to a bachelor’s degree and either qualification would be acceptable.

The writ petitioner participated in the process of appointment to the post of Senior Treatment Supervisor (STS), a purely contractual post under the

National Health Mission. On being successful, he was offered the said post on a contractual basis by an appointment notice being Memo No.

CMOH/SPG/DH & FWS/1088 dated February 29, 2016. Finally, on March 04, 2016 he joined the Jirangacha Block Primary Health Centre, District

24 Parganas under the Block Medical Officer of Health, Bhangore-II Block, as a Senior Treatment Supervisor. He had furnished documents showing

that he was holding a bachelor’s degree from a college affiliated to the University of Calcutta. He had also furnished documents showing that he

had a certificate of the sanitary inspector’s course, from an institution which is recognized by the University Grants Commission (as appears from

the affidavit-in-reply).

The writ petitioner continued on the said post until July 18, 2018 when a show-cause notice, issued by the Chief Medical Officer of Health, District

Health & Family Welfare Samity, South 24 Parganas, was served upon him. The said notice pointed out that the petitioner’s qualification of

“Diploma in Sanitary Inspector Technology†from the Institute of Medical & Technological Research (IMTR), Kolkata is unrecognized as the

same is not available on the website of the said Institute. Therefore, the petitioner was directed to show cause as to why his services should not be

terminated for non-compliance of the minimum essential educational qualification as provided for in the advertisement being Memo No. CMOH(SPG)

DH & FWS/5395 dated December 29, 2015, through which the appointment to the post of Senior Treatment Supervisor was initiated.

The writ petitioner responded to the said show cause by a reply dated July 27, 2018 wherein he took the ground that since he possesses a

bachelor’s degree with the University of Calcutta and that the Diploma in Sanitary Inspector Technology was merely optional. Therefore, on the

strength of his bachelor’s degree, he contended that his services must not be terminated. However, despite the aforesaid, the writ petitioner was

served with a termination notice dated August 17, 2018 being the impugned order before this Court. However, the notice of termination is that it is

being done “as per resolution of the District Recruitment Committee & Executive Committee, South 24 Pargranas†without assigning any reason

for the same and without even furnishing a copy of the resolution to the writ petitioner. Hence, this writ petition.

Mr. Indranil Roy, appearing for the petitioner, has based this case on three primary grounds. Firstly, he contends that the aforesaid advertisement

relied upon represents to the public at large that one of the essential conditions of eligibility was the possession of either a bachelor’s degree from

a recognized university OR a diploma in Sanitary Inspector Technology in order to be eligible for the post of Senior Treatment Supervisor â€" which

therefore allows a person to be eligible if he fulfils either condition. That the petitioner holds a bachelor degree from the University of Calcutta

satisfies the condition of minimum educational qualification as enumerated in the said advertisement even if the respondents found fault with his

certificate for the course of Sanitary Inspector Technology for any reason.

Secondly, as against the allegation that the petitioner’s Diploma in Sanitary Inspector Technology was not recognized by the Institute, the

petitioner has argued that the Institute wherefrom the petitioner obtained his Diploma in Sanitary Inspector Technology is a recognized study center of

the Institute of Advanced Studies in Education (IASE), the latter being a deemed university under section 3 of the University Grant Commission Act,

1956. It has been so recognized by a notification being F.9-29/2000-U.3 of the University Grant Commission since July 17, 2002. In this regard, the

petitioner has appended appropriate documents annexed to his Affidavit-in-Reply to the Affidavit-in-Opposition filed by the respondent authorities.

Lastly, the petitioner submits that there has been a gross violation of the principles of natural justice throughout the decision making process of the

District Recruitment Committee & Executive Committee, South 24 parganas since the reply of the petitioner to the show cause notice served upon

him was not taken into consideration. So much so that the respondent authorities even failed to make available even a copy of the order disposing of

his representation, if at all there is any, to the writ petitioner and the order of termination was not a speaking order and the resolution to which it

referred, was not served on the petitioner.

As against this, the principal objections of the respondents can be summarized best in terms of paragraph 5(iii) of the affidavit-in-opposition. The

rest of the allegations contained in the said affidavit-in-opposition are reiterations of this basic objection. For the sake convenience, I extract paragraph

5(iii) hereinbelow: -

“5(iii). That the respondent authority by issuing the said notification had declared that the recruitment process for the different post will be done as

per the terms of the reference mentioned by the competent authority or the District Recruitment Committee, applicable for the particular post and the

essential qualification for the concerned post was bachelor degree and/or recognized Sanitary Inspector Course. However, it has been observed that

the Diploma obtained by the petitioner in Sanitary Inspector Technology from the Institute of Medical & Technological Research (IMTR), Kolkata, is

not available in website of IMTR and the same is not approved course as it is not affiliated by the West Bengal Council of Technical and Vocational

Education and Skill Development, therefore, the qualification of the petitioner of Diploma in Sanitary Inspector Technology Course from the Institute

of Medical & Technological Research (IMTR) Kolkata is an unrecognized and/or unapproved course for the post of Senior Treatment Supervisor and

he does not have the essential qualification for the said post and as such he is not eligible for the post of Senior Treatment Supervisor due to non-

compliance of requisite qualification.â€​ (emphasis supplied).

When I pointed out to the learned Government Pleader, who was addressing me on behalf of the respondents assisted by Mr. Abhishek Prasad,

that the said paragraph of the affidavit-in-opposition alleged, contrary to the materials on record, that the essential qualification had been expressed to

be bachelor degree and/or recognized sanitary inspector course, and that in reality it was to be either one OR the other, the learned Government

Pleader argued that once the petitioner had submitted two sets of qualifications, if any one set was found to be not in order, then the eligibility of the

writ petitioner as a whole was liable to be considered as cancelled, and if it had not been done at the inception, it could be corrected by the

termination. That of course, does not begin to answer the question as to why the respondents had to misquote the essential educational qualification of

eligibility by alleging on oath, that it was expressed to be “and/or†instead of “orâ€, to make this submission. Furthermore, if I accept this

interpretation of “or†then it would mean that the essential educational condition of eligibility would be both the possession of a bachelor’s

degree and a recognized sanitary inspector’s course certificate/diploma. That would mean that I will allow an amendment of material nature to be

made to a representation made to the public, privately, which would defeat the purpose of having qualifications in the alternative.

The learned Government Pleader could not satisfy me how the resolution of the authority referred to in the order impugned was communicated to

the petitioner, if at all, and what was the reason for the said termination of the petitioner apart from the said resolution. The impugned order

communicating the said resolution was laconic to the point of being cryptic, and therefore on the face of the records, while depriving the petitioner of

his livelihood, the respondent authorities did not comply with the basic principles of natural justice by supplying the reasons for doing so, however

briefly â€" this failure to pass a speaking order renders the decision-making process behind the said order opaque and otherwise than in the manner

prescribed by law and/or due process.

The said order of termination as in Annexure P/12 and the so called mysterious resolution on which it is based, are therefore rendered nullities

because they are contrary to the basic principles of natural justice and therefore they are liable to be quashed on the basis of these two grounds alone

as I have summarized in paragraph 12 and 13 above. In that view of the matter, I do not have to deal with the question of whether the said IMTR

Kolkata and its diploma in Sanitary Inspector Technology Course are recognized by the West Bengal Council of Technical and Vocational Education

and Skill Development or whether the term “recognized†in the advertisement referred to recognized by the University Grants Commission or the

said Council. Nothing turns on it in the facts of the case where I have held that the petitioner had produced due documentation in support of his

qualification of a bachelor’s degree to which the diploma in Sanitary Inspector Technology was an alternative.

Accordingly, the impugned order as in Annexure P/12 dated August 18, 2018 and any other like decision and the resolution on which it is based,

are held to be nullities and non-est and are set aside. As a consequential relief, the respondents are commanded to reinstate the writ petitioner with full

benefits as admissible to him with effect from August 18, 2018, and payments of arrears calculated as if he continued in service on that date. Such

reinstatement must be done within seventy-two hours from the date of communication of this order and the payment of arrears made within one

month from the date of communication of this order. By an order dated April 22, 2019 I had granted the respondents a liberty to continue the

recruitment process while keeping one post vacant. The writ petitioner shall therefore be deemed to have continued in that post, without any break

caused by the said termination. The said order therefore, merges with this final order.

The writ petition is allowed to the above extent. There shall be no order as to costs.