Al-Kamal Ahmedullah vs State of West Bengal & Ors.

Biswanath Somadder, J.

The instant appeal arises out of a judgment and order dated 21st June, 2011, passed by a learned Single Judge in W.P. 7110 (W) of 2011 (Al Kamal

Ahmedullah vs. State of West Bengal & Ors.). The writ petition was filed by one Al Kamal Ahmedullah challenging an order dated 4th April 2011,

passed by the Chief Medical Officer of Health, Paschim Medinipur. The said order dated 4th April, 2011, was passed by the Chief Medical Officer of

Health, Paschim Medinipur, pursuant to a previous order of the High Court, being an order dated 15th February, 2011, which was rendered in a prior

writ petition, being W.P. 1088 (W) of 2011, filed by the writ petitioner/appellant herein. The learned Single Judge, while proceeding to dismiss the writ

petition, being W.P. 7110 (W) of 2011 (wherefrom the instant appeal emanates), made the following observations: -

“Having considered the facts of the case, the guidelines for appointment of AYUSH doctor allots 45 marks on account of academic and

professional records. The allocation has also been set out in clause 8 (i) of the said guidelines. For viva-voce, 5 marks is to be given. On the basis of

the academic and professional records, marks have been allotted and although a question has been raised with regard to the balance 25 marks which

according to the petitioner should have been allotted to him. The said guidelines have not been challenged by the petitioner in this writ petition.

According to him, professional records would include experience but the said does not find mention in clause 8 or in any other clause of the guidelines.

Therefore, to contend that, marks should have been allotted on account of experience cannot be accepted. Undoubtedly, from a look at the tabulation

sheet, it appears that in academic, the petitioner has scored much more than the private respondent, but it is on account of viva-voce that he has got

five marks. Therefore, the findings of the respondent no. 5 cannot be faulted and calls for no interference. The petitioner here is an unsuccessful

candidate and no infirmity is found with the selection process or the order dated 4th April, 2011.â€​

Against the impugned judgment and order, the present appeal has been filed by the writ petitioner. Even a bare perusal of the order passed by the

Chief Medical Officer of Health, Paschim Medinipur, dated 4th April, 2011, reveals that the same was rendered in conformity with the directions as

contained in the order dated 15th February, 2011, passed by the writ Court in W.P. 1088 (W) of 2011 (being the first writ petition filed by Al Kamal

Ahmedullah). The learned Single Judge has observed in the impugned judgment and order dated 21st June, 2011, to the effect that the writ petitioner

had not challenged the guidelines relating to the appointment of AYUSH doctors.

The Court has further observed â€" upon looking at the tabulation sheet â€" that although the writ petitioner had scored much more than the private

respondent, but it was on account of viva-voce that the said private respondent had got more marks. The learned Single Judge has also categorically

observed that the findings of the respondent no. 5 in the writ proceeding (being the Chief Medical Officer of Health, Paschim Medinipur) cannot be

faulted and called for no interference. The last observation made by the learned Single Judge in the impugned judgment and order is to the effect that

the writ petitioner was an unsuccessful candidate and no infirmity could have been found with the selection process or the order of the Chief Medical

Officer of Health, Paschim Medinipur dated 4th April, 2011. At this juncture, we wish to take note of the following observation made in the case of

Amarendranath Mandal vs. State of West Bengal & Ors., reported in AIR 2011 Calcutta 56 :-

“The writ court ought not to transpose itself as an appellate authority when a particular authority has performed its obligation to abide by the

specific directions given by this Court and rendered a decision in the matter supported with cogent reasons. The discretionary jurisdiction of this Court

under Article 226 of the Constitution of India ought not to be invoked in such a case, unless of course, the decision so rendered by the concerned

authority was palpably wrong or is arbitrary or perverse or smacks of malafide motive or has been rendered without adhering to the specific directions

given by the Court.â€​

The records of the instant case demonstrate that the appellant/writ petitioner has developed a habit of filing successive writ petitions, each of them

centering around basically the same issue, i.e., with regard to his non-selection as an AYUSH doctor. It is as if the appellant/writ petitioner has

decided to keep on moving this Court, by filing successive writ petitions, till such time an order is passed by this Court which enures to his benefit.

(emphasis supplied). This sort of an attitude of a litigant is precisely what has been frowned upon by the Supreme Court of India in several of its

judgments. In Dr. Buddhi Kota Subbarao â€"vs- K. Parasaran & Ors., reported in (1996) 5 SCC 530, it was observed that no litigant has a right to

unlimited drought on the Courts’ time and public money in order to get his affairs settled in the manner as he wishes.

His easy access to justice should not be misused as a licence to file misconceived or frivolous petitions. This observation has also been reflected in

another judgment of the Supreme Court in the case of Sunil Kumar â€"vs- State of Haryana, reported in (2012) 5 SCC 398, while it was considering

as to whether there should be any restraint on a writ petitioner in such a fact situation or whether he should be permitted to abuse the judicial process

as he likes. (emphasis in original). In this context, one may also take notice of the judgment rendered in the case of Debashis Biswas vs. The State of

West Bengal & Ors., reported in (2013) 1 WBLR (CAL) 530 = (2013) 1 CLT 25 (HC).

That apart and in any event, in an Intra-Court Mandamus Appeal, no interference is usually warranted unless palpable infirmities or perversities are

noticed on a plain reading of the impugned judgment and order. In the instant case, upon a plain reading of the impugned judgment and order dated

21st June, 2011, we do not notice any such palpable infirmity or perversity. Moreover, the reasons put forward by the learned Single Judge justifying

dismissal of the writ petition, being W.P. 7110 (W) of 2011, are cogent and justifiable. For reasons stated above, the instant appeal is liable to be

dismissed and stands accordingly dismissed.