Amiya Kanti Haldar vs State of West Bengal

S.K. Mookherjee, J.—The writ Petitioner is the Additional Director of Health Services (Administration), West Bengal. He was appointed as such by a Notification dated June 30, 1988, which is Annexure ''C'' to the writ application. Simultaneously, on the same date, by another notification, the Respondent No. 4 was appointed as Director of Health Services, West Bengal. The said notification also is Annexure ''D'' to the writ application. The instant writ application was moved on July 4, 1988 with prayers, inter alia, for writ of mandamus commanding the Respondent to withdraw, cancel, rescind and/or recall the notification (Annexure ''D'') and also for a writ of certiorari for quashing of the same. After exchange of affidavits the writ application has been heard out by me.

From the submissions made on behalf of contesting parties, it appears that the resolution of the dispute involved in the writ proceeding substantially hinges on the construction of a memorandum issued by the Secretary, Department of Health and Family Welfare, dated April 20, 1986, Annexure ''A'' to the writ application, which embodies the Government decision and sanction thereto of the Governor to the creation of two posts in the unified cadre of the West Bengal Health Services in place of single post of Director of Health Services, West Bengal. One of the created posts is the post of Director of Health Services to which the present dispute relates. At this point, it is necessary to take note of the criteria which were laid down by the said memorandum for filling up the said post. The relevant part of the said memorandum may be quoted as follows:

The post of Director of Health Services, on the other hand, should be manned by a Senior Medical Officer of the WBHS Preferably with 15 years'' administrative experience (underlining is mine).

It is not disputed that the post is a selection post. Upon careful reading of the quoted paragraph, it becomes clear that it requires basically two criteria to be satisfied-- (i) seniority and (ii) administrative experience. ''Seniority'' cannot mean seniority on the basis of the gradation list because in that event it was open to use the term ''senior most'' instead of seniority. Senior Medical Officer means Medical Officer having sufficient experience. The second criterion of having administrative experience means that he must have practical experience in administrative matters. In other words, he must have, during his service career, been entrusted with the task of administration. The second criterion is qualified further by saying ''preferably with 15 years'' administrative ''experience''. The terms ''preferably'' and ''fifteen years'' indicate the flexibility of the second criterion in case of necessity.

This can be properly appreciated by considering two examples, namely, if two candidates are available one with 15 years'' experience and another with lesser experience, in the absence of a special factor against the first one, he ought to be selected and a deviation would amount to arbitrariness; but if there is an adverse factor against such a candidate having 15 years'' administrative, experience or if no candidate with 15 years'' administrative experience is available, the Government would be free to accept candidate with lesser period of administrative experience.

Applying the aforesaid principles to the facts of the present case, I find that the first requisite has been fulfilled by both the candidates as both of them can be treated as senior Medical Officers. The view taken by me about the meaning of the term ''Senior Medical Officer'' obviates'' the need for consideration of the effect'' of seniority attributable to the Respondent on the basis of his service in Army having resulted in doubling the actual service period. Difficulty arises when the cases of the two candidates are considered in the background of the second requisite.

It has been strongly contended in this connection, on behalf of the writ Petitioner that the private Respondent held posts, for the major part of his service life, which did not carry any administrative allowance or pay and, as such, the period during which he held such posts could not be considered for determining his period of administrative experience. It cannot be said that the construction of the term ''administrative experience'' would be narrowed down by holding that the Medical Officers, who draw administrative allowance or pay, only discharge administrative functions.

A look at the various memoranda issued from time to time by the Government prescribing the duties and functions of different Medical Officers immediately reveals that many such Medical Officers discharged administrative functions in spite of not being entitled to draw such pays and allowances. If a narrow construction or interpretation is put regarding the second requisite, it would result in curtailing the scope or availability of incumbents for consideration for the post in question which, I feel, would not be just and proper in the context of the nature of the requisite itself and the social need and public benefit, which are sought to be achieved.

This view about the second requisite also justified the selection of the Respondent No. 4 as the different posts be held from time to time as delineated in the Supplementary Affidavit affirmed on June 11, 1990, involved discharge of administrative functions in the light of the Government memoranda referred to hereinabove. It cannot be accepted, as contended on behalf of the Petitioner, that during the period 1962-78 the Respondent No. 4 did not perform any administrative duties.

The second requisite also is, therefore, well-fulfilled by the said Respondent No. 4. It is not necessary for me, for the purpose of Judging the propriety of the selection of the Respondent No. 4 the Government for the disputed post to compare the extent of administrative experience between the two rival candidates as requirement of 15 years'' administrative experience is well-satisfied also by the Respondent No. 4.

No material has been placed before this Court to show that the State Respondents acted arbitrarily and/or mala fide in selecting the Respondent No. 4 to the disputed post.

In the aforesaid view of the matter, I do not interfere with the disputed appointment by setting aside the order embodied in the impugned memorandum (Annexures ''C'' and ''D'') by quashing the same or by issuing a direction on the Respondents for rescinding or withdrawing the same.

The writ application, therefore, fails and is dismissed.

There will, however, be no order as to costs.