Dr. Manishankar Garang vs Dr. Sk. Nafis Ali & Ors.

By consent of the parties, the appeal is treated as on day''s list and taken up for consideration along with the application for stay.

The instant appeal has been preferred against a judgment and order dated 22nd November, 2016, passed by the learned Single Judge in WP 2073 (W) of 2016 (Dr. Sk. Nafis Ali vs. The State of West Bengal & Ors.). The appellant before us was the private respondent no.15 in the writ proceeding.

One Dr. Sk. Nafis Ali, being the respondent no.1 herein, moved a writ Court challenging the selection of the private respondent no.15 for the post of Homoeopathic Medical Officer to be appointed on a part-time contractual basis at Nawabpur Gram Panchayat situated in the district of Hooghly. During the course of hearing of the writ petition, a report from the Pradhan of the concerned Gram Panchayat was called for. The Pradhan stated that the respondent no.15 had qualification. The learned Single Judge while considering the rest of the report in the form of an affidavit observed in the impugned judgment and order to the effect that the other part of the affidavit revealed a sordid state of affairs. The learned Single Judge has recorded the following in his impugned judgment and order:- "...The Pradhan says that he had called a general meeting on January 4, 2016 to select the part-time Homoeopathic Doctor after discussing with the other members. At the meeting he and three other members opposed the appointment of the respondent no.15 but with the majority support respondent no.15 was selected and the resolution was passed. If this is the only thing that has been done for selecting a Doctor for the Homoeopathic dispensary I must say that the respondent did not follow the appropriate procedure or rules. When there are more candidates than one it is only expected that the authorities would initiate a regular selection procedure in order to assess the comparative merits of the respective candidates. The resolution of the Gram Panchayat as annexed to the affidavit shows that there were seven applicants and the resolution merely recorded that after scrutinizing the applications it was proposed to appoint the respondent no.15 as the Homoeopathic Doctor. Overruling the objection of the three members of the Samity by majority opinion the respondent no.15 was selected."

Thereafter, the learned Single Judge proceeded to make the following observation: "Such a procedure must be reckoned to be not a valid one for selecting a Doctor or for a candidate for any post. By merely and sheer majority decision no appointment can be made. Moreover, the resolution adopted by the Panchayat is entirely silent as to why the respondent no.15 was considered more suitable over and above the other six candidates. The respondent authorities did not record anything except that the majority had supported the case of the respondent no.15. Consequently, there was no assessment of the respective merits. There was no expert called for the purpose and one has to hold that there was a good deal of arbitrariness in the selection of the private respondent who was the choice of the majority of the members of the Panchayat. The Panchayat in the process had forgotten that when an educational qualification with background had been laid down as the eligibility for applying for the post and when more than one person with the said eligibility had applied the comparative merits must have to be taken into consideration. There was no such effort in the present case."

The learned Single Judge proceeded further to observe that any selection must have a reasonable nexus with the purpose for which it was to be made and the purpose of setting up the Homoeopathic dispensary as well as engaging a part-time Homoeopathic Doctor was to render the best service to the people of the locality and that could be done by the best qualified candidate. The learned Single Judge has thereafter proceeded to observe to the effect that it was incumbent upon them to ensure a regular selection process and the Panchayat, without following this well settled principle, had decided to go by the majority decision as if they had assembled to exercise their democratic right with the voice of the majority that counts.

We find from the remaining portion of the impugned judgment and order that during pendency of the writ petition, the learned Single Judge had given liberty to the appellant herein, being the private respondent no.15 before the writ Court, to file an affidavit-in-opposition. This was communicated to the private respondent no.15 by the learned advocate for the writ petitioner. In spite of such opportunity being given to him, the private respondent no.15 neither filed any affidavit nor was he represented by a learned advocate when the impugned judgment and order was passed. The learned Single Judge has ultimately come to a conclusion that since the entire procedure adopted by the Panchayat for selecting the Homoeopathic Doctor was bad, the resolution dated 4th January, 2016 and all subsequent steps taken pursuant thereto were set aside and quashed. Upon quashing the resolution dated 4th January, 2016 and all subsequent steps taken pursuant thereto, the learned Single Judge proceeded to issue the following directions:- "... I direct the appropriate authority to initiate the appropriate selection procedure on the basis of the applications already on record. Such procedure is to be initiated within three weeks from the date of communication of the order and shall be completed within four weeks thereafter. It is, however, made clear that since the respondent no.15 is already working as a part-time Doctor he shall be allowed to discharge his duties till the selection procedure to be initiated by the Panchayat afresh is completed. I make it clear that the timeframe fixed by this Court for initiating and completing the selection process are mandatory."

In an Intra-Court Mandamus Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed. No such palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. Moreover, the judgment is supported with cogent reasons.

It is quite interesting, however, to take note of one fact which surfaced during the course of hearing of the instant appeal. In response to the Court''s specific query, the learned advocate representing the appellant, being the private respondent no.15 before the writ Court, has specifically stated that his client has been merely selected but is not working. However, before the learned Single Judge it was represented - most probably by the Panchayat authorities - that he was already working. This was taken note of by the learned Single Judge which was the reason why the Court had observed that the "part-time Doctor shall be allowed to discharge his duties till the selection procedure to be initiated by the Panchayat afresh is completed".

The private respondent no.15 was given an opportunity to use an affidavit and also an opportunity to be represented in Court, but he chose neither. That apart, the Panchayat authorities - as it appears - extended undue favour to the said private respondent no.15, being the appellant herein, while selecting him without following due process of regular selection purely on a majority vote.

For reasons stated above, the appeal and the application for stay are liable to be dismissed and are accordingly dismissed.

Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.