DR. TAPAS KUMAR MAN DAL AND OTHERS & ETC.versusSTATE OF WEST BENGALAND OTHERS

                   [2015) 10 S.C.R. 447


   DR. TAPAS KUMAR MAN DAL AND OTHERS & ETC.                  A
                             V.
        STATE OF WEST BENGALAND OTHERS
           (Civil Appeal Nos.6689-6690 of 2015)
                  SEPTEMBER 01, 2015                          B

         [M.Y. EQBALAND C. NAGAPPAN, JJ.]
     West Bengal Medical Education Service, the West
Bengal Health Service and the West Bengal Public Health-
cum-Administrative Service (Placement on Trainee Reserve) C
Rules, 2008 - Selection procedure - Notification to the effect
that in-service candidates who had obtained diploma within
the last three years (2012-2014) would not be considered for
the degree course and only pre-2012 diploma holders would
                                                               0
be considered - Challenge to, by the appellants who were
selected and called for giving sponsorship - Held: Reasons
assigned by the High Court forgiving priority to those doctors
who have completed their diploma courses much before the
appellants upheld - Government gave opportunity to those E
Doctors, who had got one specialization more than three
years back and they are senior to the appellants - Further. it
is evident from the Rule that the placement of the Doctors
would be at the discretion of the Government - Merely
because the appellants got selected does not give them right F
as in-house Doctors to get priority above their seniors.

    Dismissing the appeals, the Court

    HELD: The perusal of the order passed by the High
Court would show the reasons assigned for giving G
priority to those doctors who have completed their
diploma courses much before the appellants. Admittedly,
the Government has given opportunity to those Doctors,
                            447                               H
448        SUPREME COURT REPORTS                [2015] 10 S.C.R.


A who had got one specialization more than three years
  back and they are senior to the appellants. The High
  Court also took note of the fact that there is a huge
  deficiency of Doctors in the State and the Government
  is contemplating of opening of new super-specialty
B hospitals by the year 2015-15. From perusal of the
  relevant rule, it is evident that the placement of the
  Doctors would be at the discretion of the Government.
  Merely because .the appellants were allowed in the
  examination and found place in the select list does not
C give them right as in-house. Doctors to get priority above
  their seniors. In the peculiar facts and circumstances of
  the case, there is no reason to interfere with the impugned
  order. However, it is recorded that the assurance given
  by the counsel for the respondents that the appellants
0
  would be given sponsorship for the next year 2016-17.
  [Para 13-15] [453-G-H; 454-A-C]

         CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
      6689-6690 of 2015.
E
          From the Judgment and Order dated 17.04.2015 of the
      High Court of Calcutta in A.S. T. Nos. 51 & 52 of 2015.

          H uzefa Ahmadi, Rauf Rahim for the Appellants.
F
          Kalyan Kr. Bandopadhyay, Shagun Matta,Anip Sachthey,
      Madhumita Bhattacharjee, Brajesh Pandey for the
      respondents.

          The Judgment of the Court was delivered by
G
          M. Y. EQBAL, J. 1. Leave granted.

      2. These appeals by special leave are directed against
  the Judgment and order dated 17.04.2015 passed by the
H Division Bench of High Court of Calcutta inA.S.T. Nos. 51 &
 DR. TAPAS KUMAR MANDAL & ORS. ETC. v. STATE OF 449
           WEST BENGAL [M. Y. EQBAL, J.]

52 of 2015 dismissing the writ petitions preferred by the A
appellants against the order of the West Bengal Administrative
Tribunal refusing to pass an interim order and fixing the matter
for final hearing.
                  •
      3. The tacts of the case in brief are that the appellants- B
 writ petitioners, who are all Doctors serving under the
 Department of Health and Family Welfare, Government of West
 Bengal, had obtained M.B.B.S. Degree and were issued
 Registration Certificates from· the West Bengal Medical
 Council in different years. All of them are permanent employees C
 under the Department of Health and Family Welfare,
 Government of West Bengal, having joined their services mostly
 before 2008. It is appellants' case that the West Bengal
 University of Health Sciences published an Advertisement for
 the West Bengal Post Graduate Medical Admission Test for D
 the years 2011-2012. They all got rank in the test of 2011 or in
.the test of 2012 and after counselling, all of them were admitted
 to different Diploma courses and they all completed their
 courses in the year 2014 with Trainee Reserve Facility (T.R.
 Facility) following the West Bengal Medical Education Service, E
 the West Bengal Health Service and the West Bengal Public
 Health-cum-Administrative Service (Placement on Trainee
 Reserve) Rules, 2008 (in short, "T. R. Rules of 2008"), which
 enabled them to study in the said courses as applicable to in- F
 service candidates. Such T. R. facilities were allowed by the
 Government vide different memos issued from time to time.

     4. It has been pleaded on behalf of the appellants that
they have availed two years' T.R. Facilities on completion of
their courses and that they had also availed T. R. facilities to G
which they were entitled to get and all of them had obtained
such facility in the year 2012, which came to be completed in
the year 2014, just after completion of their Diploma courses.
Further on completion of their Post Graduate Diploma Courses H
in the year 2014, their results were duly published and all of
450         SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A     them passed the examinations and joined duty. Some of them
      were posted at different Health Centres while others at different
      Hospitals, but all of them had passed the Diploma courses
      with good marks.

 B
                                                    •
       5. The West Bengal University of Health Sciences issued
  an Advertisement on 12.12.2014 pertaining to the West Bengal
  Post Graduate Medical Admission Test, 2015. They also
  published the Rules and Regulations of the said Admission
  Test. The writ petitioners submitted their formal applications
C before the concerned authorities so as to enable them to
  appear in the said 2015 Tests. It has been contended by the
  appellants that they were all eligible and the process of allowing
  in-service Doctors to take the Tests was being followed by the
  concerned Department for several years and, therefore, the
D appellants submitted Proforma of Sponsorship Certificates,
  which were duly accepted by the concerned authorities. The
  appellants then applied for the West Bengal Post Graduate
  Medical Admission Test, 2015 by submitting necessary
  documents along with the necessary fees in the category of
E Government Sponsored Candidates. The authorities of the
  Department of Health and Family Welfare, Government of West
  Bengal then allowed them to appear and the University of
  Health Sciences also accepted their Application Forms on-
F line and subsequently, the appellants also submitted
  hard copies of such Applications within the specified time.

       6. In February, 2015, Written Testforthe 2015 Tests was
  held in which appellants appeared and in the results, which
  were published on 11 .2.2015, appellants got comfortable ranks
G and top positions. As pleaded on behalf of the appellants, on
  17 .03.2015 a List was published in the website informing, inter
  alia, that the persons mentioned therein had qualified for
  acquiring Sponsorship Certificates for the W.B.P.G.M.A.T.
H 2015 and they were instructed to go to the concerned Office
 DR TAPAS KUMAR MANDAL & ORS. ETC. v. STATE OF 451
          WEST BENGAL [M. Y EQBAL, J.]

 and collect their certificates personally. Hence, it is contended A
 by the appellants that they were found eligible for being given
 Sponsorship Certificates. However, on 20.3.2015, the
 authorities published yet another Notice in their website giving
 out the names of 223 candidates giving similar instructions
 for personally collecting the Sponsorship Certificates. But in B
 this Notice, the name$ of the present appellants were dropped
 out. Upon enquiry, they came to learn that the authorities had
 taken a decision that they would not allow candidates, who
 had passed Diploma within the last three years and as such
 their names had been dropped. Being aggrieved, the C
 appellants sent a Letter of Demand for justice as well ·as
.Objection against such act and prayed for modifying their stand
 of not allowing such persons who had passed Diploma within
 the last three years. According to the appellants, this was a D
 condition, which was de hors the provisions of the Trainee.
 Reserve Rules of 2008.

     7. The names of the appellants were again not published
in another Notice dated 23.03.2015, whereby the authorities
allowed several Doctors, who had completed their Post             E
Graduate Diploma prior to 2012 and before entering service
and, according to the appellants, even the candidates, who
had not completed 2/3 years rural service, which was
compulsory as per the Rules, were allowed. It has been alleged    F
on behalf of the appellants that these Doctors had several
relatives/cousins/nephews in the higher echelons of the
Government and, therefore, the action was motivated and mala
fide.

    8. It has been further pleaded by the appellants that by a G
Notification dated 24.03.2015, the Joint Secretary to the
Government of West Bengal, Department of Health and Family
Welfare informed, inter alia, that in exercise of powers
conferred under Clause 9 of said T. R. Rules of 2008, those H
452         SUPREME COURT REPORTS                  [2015] 10 S.C.R.


A     Medical Officers, who had acquired Post Graduate Diploma/
      Degree on availing facilities within the last three years
      (1.4.2012 to 31.3.2015), would not be allowed further T. R.
      facility during this year (2015). According to the appellants, .
      this order is illegal, arbitrary and proceeds to debar the
 B    appellants purportedly on a ground, which is beyond the
      grounds mentioned in the Rules. According to them, despite
      being toppers of the merit list they could not participate in the
      counselling session.

C       9. Aggrieved appellants, therefore, immediately
   approached the First Bench of the West Bengal Administrative
   Tribunal (in short, "the Tribunal"), which dismissed their petition
   on the ground that Clause 9 of the T. R. Rules of 2008 had a
   non-obstante Clause whereby the Government had a
 D discretionary power in matters regarding placement of Trainee
   Reserve candidates and that no interim orders could be
   passed at that stage. Appellants, thereafter, knocked the doors
   of the High Court by filing writ petitions, which were dismissed
   by the Division Bench holding that the discretion that has been
 E exercised in the instant case does not suffer from any
   irregularity and it is based on logic, equality and on public policy
   since Rule 9 of the aforesaid Rules clearly lays down that
   "placement" shall be at the discretion of the Government. Thus,
 F even if a Doctor is eligible for further Government Sponsorship,
   he cannot claim, as a matter of right, that such sponsorship be
   given to him consecutively and in short intervals by not
   considering others, who are in queue for a period prior to
   1.4.2012.
G          10. Hence, the aggrieved Doctors are before us by way
      of these appeals by special leave. We have heard learned
      counsel forthe parties at length and perused the concerned·
      Rules.
H         11. Mr. HuzefaAhmadi, learned senior counsel appearing
 DR. TAPAS KUMAR MAN.DAL & ORS. ETC. v. STATE OF 453
           WEST BENGAL [M. Y. EQBAL, J.]

for the appellants, mainly contended that only after the A
appellants were selected, the Notification was published on
24.3.2015 indicating that in-service candidates who had
obtained diploma in the years 2012-2014 would not be
considered forthe degree course and only pre-2012 diploma
holders would be considered. According to the learned senior B
counsel, there is no rationale for this discrimination particularly
when one of the appellants all the three times finally ranked in
the merit list for the degree course. It was contended that at
the time of filling of the form for the degree course the eligibility
criteria did not specify that only pre-2012 diploma holders will C
be considered as candidates for the degree course. As a
matter of fact, the selection procedure was arbitrarily changed
after the appellants were selected and called for giving
sponsorship certificate. Mr. Ahmadi also referred to some D
decisions to the proposition that inter se merit cannot be
overlooked to promote seniority which has no place in the MCI
Regulations.

    12. Per contra, Mr. Kalyan Bandopadhyay, learned senior
counsel appearing for the respondents, at the very outset fairly      E
submitted that he has nothing to say so far the merits of the
appellants are concerned. But the action taken by the
respondents cannot be held to be mala fide. Indisputably,
appellants got the benefit of three years of service. It is not the   F
case of admission in the open category.

      13. Perusal of the impugned order passed by the High
Court will show the reasons assigned for giving priority to those
Doctors who have completed their diploma courses much
before the appellants. Admittedly, the Government has given G
opportunity to those Doctors, who had got one specialization
more than three years back and they are senior to the
appellants. The High Court also took note of the fact that there
is a huge deficiency of Doctors in the State and the Government H
is contemplating of opening of new super-specialty hospitals
454           SUPREME COURT REPORTS                [2015] 10 S.C.R.


A     by the year2015-16.

           14. From perusal of the relevant Rule, it is evidentthatthe
      placement of the Doctors shall be at the discretion of the
      Government. Merely because the appellants were allowed in
 B    the examination and found place in the select list does not
      give them right as in-house Doctors to get priority above their
      seniors.

           15. In the peculiar facts and circumstances of the case,
 c    we do not find any reason to interfere with the impugned.,order.
      However, we record the assurance given by Mr. Bandopadhyay
      that the appellants will be given sponsorship for the next year
      2016-17.

 D       16. For the aforesaid reason, we dismiss these appeals.
      However, there shall be no order as to costs.

      Nidhi. Jain                                    Appeals dismissed.