Sukla Mistry (Biswas) vs Shivani Devi & Others

Tapabrata Chakraborty, J

The writ petition being WPCT No. 071 of 2019 has been preferred by one Sukla Mistry (Biswas) (hereinafter referred to as Sukla) primarily praying for the following relief:

"b) Writ/Order/Direction in the nature of Mandamus do issue quashing and/or setting aside the order dated 04.02.2019 passed by the Learned Central Administrative Tribunal, Calcutta Bench presided by Ms. Bidisha Banerjee, Member (Judicial) sitting with Dr. Ms. Nandita Chatterjee, Member (Administrative), in Original Application No. 351/00419 of 2017 (Shivani Devi -vs- The Union of India & Ors.), and passing further order dismissing the OA of the applicant as not maintainable and thereupon passing an order restoring the appointment granted to the petitioner as Staff Nurse under order dated 19.09.2016 of the Director of Health Services, Andaman and Nicobar administration;"

The writ petition being WPCT No. 085 of 2019 has been preferred by one Shivani Devi (hereinafter referred to as Shivani) primarily praying for the following relief:

"(A) A writ in the nature of Certiorari directing the respondent No.6 to transmit the case record before this Hon'ble Court for administering conscionable justice and after considering the same to quash the judgment and order dated 04.02.2019 only to the extent whereby the learned tribunal held that the disability certificate dated 19.08.2013 in respect of the private respondent was in order being issued by a medical officer since disability certificate by medical officer was not mandatory and the said fact is not disputed in view of the circular dated 02.03.2012."

Responding to a vacancy notification, both Sukla and Shivani applied for participation in a selection process for appointment to a post of Staff Nurse under the physically handicapped category. The first notification was published in a local newspaper on 12th August, 2013 but due to administrative reasons, it did not culminate into appointment and as such a similar vacancy notification was published in the month of May, 2015. A written examination was held and the result was published on 8th August, 2016 wherein Shivani's name appeared below the name of Sukla. Shivani thereafter submitted a representation stating inter alia that Sukla is neither handicapped nor was in possession of a valid nursing registration certificate (hereinafter referred to as NRC) and as such she cannot claim appointment to the post. Shivani's claim was, however, rejected by an order dated 23rd August, 2016 and Sukla was granted appointment by a memo dated 19th September, 2016 issued by the Assistant Director (Administration), Directorate of Health Services. Challenging the said order dated 23rd August, 2016, Shivani preferred an original application being OA 419/2017 and the same was disposed of by an order dated 26th June, 2018 directing "the Principal Secretary (health), A&N Administration, to re-visit the process of appointment of Staff Nurse particularly in the context of appointment under Physically Handicapped quota and to issue a reasoned and speaking order on the same in accordance with law." Challenging the said order dated 26th June, 2018 passed by the learned tribunal, Shivani preferred a writ petition being WPCT No.118 of 2018 since according to her, the learned tribunal ought to have annulled the appointment of Sukla having arrived at a categoric finding that she had no valid NRC. Sukla also challenged the said order by filing a writ petition being WPCT No. 127 of 2018. Both the said writ petitions were disposed of by an order dated 6th July, 2018 setting aside the order of the learned tribunal and the original application was remanded for further consideration. Subsequent thereto, the said application was disposed of by the learned tribunal on 4th February, 2019.

Mr. Samanta, learned advocate appearing for Sukla submits that the learned tribunal erred in law in setting aside the appointment of Sukla at the behest of Shivani, who was an unsuccessful candidate in the selection process and that Shivani also did not fulfill the eligibility criteria as she was not having a valid NRC.

Drawing the attention of this Court to the documents annexed at pages 73 and 154 of WPCT 071 of 2019, Mr. Samanta submits that the term "life member" as inserted in the NRC of Shivani issued on 18th December, 2001 does not feature in the NRC supplied to Sukla in response to her application under the Right to Information Act, 2005 (hereinafter referred to as the said Act of 2005). In reply to Sukla's query, it has also been informed, upon verification, that " as we have received the required details from your end and verified we inform you that there is no record of the renewal found with us hence this registration is inactive with us." A person having no valid NRC is precluded from challenging the appointment of Sukla. Thus, the original application preferred by Shivani is itself not maintainable since an unqualified candidate cannot challenge the appointment of Sukla, who emerged to be successful on the basis of merit.

He contends that the Hon'ble High Court accepting the submission of Sukla that the learned tribunal had passed the earlier order on 26th June, 2018, on stale notifications and circulars, remanded the matter for consideration afresh by an order dated 26th July, 2018. The contention of Sukla that the learned tribunal had failed to assess the matter on the basis of the law as it stood as on the date of the appointment or as on the date of the application was not taken note of by the learned tribunal while passing the order impugned.

He further submits that the learned tribunal did not take into consideration the document annexed at page 194 of WPCT No. 085 of 2019, which clearly shows that Sukla's NRC was renewed from time to time and is valid till the year 2022. It is a settled proposition of law that subsequent revaluation/renewal of a certificate relates back to the date on which the certificate was issued and as such Sukla's certificate was valid on the date of issuance of notification as well on the date on which the application was received as per the vacancy notification.

According to Mr. Samanta, the argument advanced on behalf of Shivani that Sukla's disability certificate at page 99 of WPCT 071 of 2019 is not valid has been rightly negated by the learned tribunal taking into consideration the circular dated 2nd March, 2012. In view of the said circular, the disability certificate issued in favour of Sukla does not suffer from any jurisdictional error, warranting interference of this Court.

Per contra, Mr. Kumar, learned advocate appearing for Shivani contends that the issue of maintainability was not urged by Sukla in the first and second round of litigation before the learned tribunal or before this Court, as would be explicit from the pleadings therein. The maintainability issue thus cannot be urged at this belated stage.

He submits that the document towards renewal of NRC annexed at page 194 of WPCT No. 085 of 2019 could have been availed by Sukla earlier by submitting appropriate application under the said Act of 2005. No such steps were taken by Sukla and as such she is estopped from placing reliance upon the said documents at this belated stage.

He submits that in the NRC submitted by Shivani it was categorically indicated that she was a life member of the Council and as such question of any renewal of the said NRC does not occasion. Even if the document of renewal at page 194 of WPCT 085 of 2019 is accepted, it would be evident that Sukla did not have any valid NRC during the period from 24th July, 2004 till 3 rd May, 2006 and from 4th May, 2011 till 15th May, 2017 and as such as on the date of the vacancy notification and as on the last date of submission of application, Sukla did not fulfill a mandatory eligibility criterion. It is explicit that no attempt was made by Sukla to apply for renewal after her certificate lapsed in the year 2009.

Drawing the attention of this Court to the documents at pages 119, 120, 121, 131 and 146 of WPCT No. 085 of 2019, Mr. Kumar submits that the vacancy notification was initially published on 12th August, 2013 and thereafter on 13th August, 2013 Sukla applied for disability certificate and the said certificate was issued on 19th August, 2013 whereas the examination was conducted by the Medical Officer on 20th August, 2013. At that juncture Sukla was discharging her services under the Chief Medical Officer, Community Health Centre, Diglipur, on leave vacancy.

Mr. Kumar points out that the memo number as referred to in the communication dated 17th September, 2018 at page 158 of WPCT No. 071 of 2019, has no manner of application pertaining to the issue of renewal of NRC inasmuch as the same pertains to "release of funds for Upgradation/Strengthening of State Nursing Council during XI plan period". Let the said memo, as produced, be kept on record. In support of his arguments Mr. Kumar has placed reliance upon the judgments delivered in Suneel Kumar Singh and another vs. State of U.P and others, District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and another vs. M.Tripura Sundari Devi reported in (1990) 3 SCC 655, Mriganka Mondal vs Dr. Asitabha Das & others and Deepak Tandon & another vs Rajesh Kumar Gupta.

Mr. Khan, learned advocate appearing for the Administration submits that the physical disability certificate issued to Sukla had not been challenged in the original application and that the Administration had considered the applications submitted and had conducted the selection process in strict consonance with the terms of the vacancy notification. The selection process as conducted does not suffer from any infirmity warranting any interference.

In reply, Mr. Samanta submits that in response to Sukla's queries, the documents annexed at pages 153 to 160 of WPCT 071 of 2019 were supplied in terms of the said Act of 2005. The said documents were not in possession of Sukla at the time when the earlier writ petitions were disposed of and as such it was an impossibility to incorporate the same in the pleadings in course of the earlier rounds of litigation. The issue that Shivani did not have a valid NRC and hence had no locus standi to challenge the appointment of the private respondent goes to the root of the matter as regards maintainability of the original application and the said issue can be agitated even at this stage.

The documents at pages 119, 120, 121 and 146 of WPCT No. 085 of 2019 clearly reveal that an application for disability certificate was submitted by Sukla on 13th August, 2013, the said certificate was issued on 19th August, 2013 and Sukla applied in response to the vacancy notification on 24th August, 2013. The certificate was issued on 19th August, 2013 whereas the examination was on 20th August, 2013. From such sequence, grave doubts occasion as regards the validity of such certificate dated 19th August, 2013. It appears that the learned tribunal did not consider the said issue. The manner in which the disability certificate was obtained within less than five days prior to the date of submission of the application and in the absence of any explanation as regards the controversy which had occasioned pertaining to the issue, no reliance can be placed upon the same and the same does not conclusively establish that Sukla is physically handicapped. With such observations, the writ petition being WPCT 085 of 2019 is disposed of.

A perusal of the order dated 6th July, 2018 would reveal that the original application was remanded primarily on the basis of the submission advanced by Sukla that "later notifications of 2009 were not looked into" by the learned tribunal. However, no such notification was placed by Sukla at the time of disposal of the original application after remand. No new law or circular or the like was cited by Sukla. The attempt on the part of Sukla to negate the claim of Shivani placing reliance upon an extract of a memo referred to in a communication dated 17th September, 2018 annexed at pages 158 of WPCT 071 of 2019 also fails since the said memo is not pertaining to any renewal of nursing certificate.

In the order dated 4th of February, 2019, it has been rightly observed that on the date of submission of application for the post in question, Sukla had no valid NRC. Even if the document annexed at page 194 of WPCT No.085 of 2019 is accepted, it would be evident that there was no renewal of Sukla's NRC in between 4th May, 2011 till 15th May, 2017 which covers the dates of issuance of notification and submission of application and in such circumstances, the doctrine of relating back has no manner of application. When an advertisement mentions a particular qualification and an appointment is made in disregard to the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or better qualification than the appointee. The petitioner was the first candidate on merit fulfilling the eligibility criteria inasmuch as the sole candidate above her admittedly did not fulfill the eligibility criteria.

In the said conspectus, the learned tribunal had rightly quashed the appointment order issued in favour of Sukla and we do not find any infirmity in such direction. Accordingly, the writ petition being WPCT 071 of 2019 is dismissed