MADHABI SAHA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) BY this writ petition the petitioner seeks to quash the order dated 29th December, 2009 passed by the respondent no. 4, seeks on enquiry regarding the legality of the Ration Card of the private respondent so also to send the petitioner for training for the post of Auxiliary Nurse and Midwife (ANM).

(2.) THE case of the petitioner is that the private Respondent no. 9 is the daughter of the Respondent no. 10. For the post of second ANM advertisement was published and application invited for the concerned Sub-Centre. One of the criteria for the appointment was that the candidate would have to be the local resident of the Sub-Centre and in proof of the said criteria the EPIC Card or Ration Card had to be produced. As the Sub-Centre in respect of which the dispute has arisen is in Bablari Gram Panchayet the candidates would have to be the local resident of the said Gram Panchayat. In the panel prepared the petitioner has been placed at serial no. 2 while the private Respondent no. 9 has been placed at serial no. 1. As the private Respondent no. 9 though married does not satisfy the residential criteria therefore the name of the private Respondent no. 9 ought to be deleted from the said panel. A complaint was lodged to the Respondent no. 4 on 3rd September, 2009 as the private Respondent no. 9 after her marriage does not reside in the said Gram Panchayet and has also withdrawn her Ration Card from the said Gram Panchayet on 23rd June 2008. This will not entitle her on the ground of residential criteria alone to be eligible for such appointment. She resides at Ketugram since her marriage in 2002 and the advertisement was of 2008. On the basis of the complaint lodged by the petitioner, enquiry was held by the Respondent no. 4, the complaint was rejected and selection of the private respondent was upheld. THE said order dated 29th December, 2009 be set aside as it has failed to consider that the Respondent no. 10 is the father of the Respondent no. 9 and works as a ?karmadhaksha? in Nabadwip Block Panchayet Samity therefore the Respondent no. 9 cannot be selected nor can she be sent for training. As the Ration Card was withdrawn on 23rd June, 2008 from Bablari Gram Panchayet and the advertisement was in July 2008, there has been noncompliance of residential status. No proper enquiry has been made before passing the order dated 29th December, 2009. THE Ration Card, therefore of the Respondent no. 9 cannot be relied on. As the petitioner on the other hand is a married woman of Bablari Gram Panchayet and from the EPIC Card and the Ration Card her residential status in the said Gram Panchayet are established, the same ought to have been considered. Reliance is placed on 2007 11 SCC 522 for the proposition that Rules prevailing at the time of notification is to apply. Any appointment which is contrary to guidelines is void as held in 2006 7 SCC 161 and an illegal appointment cannot be the basis of allowing a wrong as held in 1996 2 SCC 459. One who seeks equity must come with clean hands as held in 2007 12 SCC 621 and AIR 1985 SC 1416. From the affidavit filed in CAN 7796 of 2010 by the writ petitoner it will be evident that her Ration Card has been issued on 29th July 2008 after surrender on 23rd June, 2008. From the EPIC Card disclosed in the affidavit filed by the private respondent to the writ petition it will appear that the same was issued in 2000 that is prior to her marriage in 2002 and the address given therein is of Bablari. THErefore the EPIC Card cannot be relied on and the Ration Card ought to have been considered. THE private respondent has been sent for provisional training on 20th January, 2009. For all the said reasons the order dated 29th December, 2009 set aside so also the provisional appointment of the private respondent as second ANM.

(3.) THEREFORE, the residential status of the petitioner cannot be doubted. As the father of the private Respondent no. 9 is a cardiac patient the private respondent no. 9 resides at Bablari to take care of her father after her mother?s demise and therefore is entitled to be appointed to the said post. The said has been enquired into by the adjudicating authority and no interference is called for with the order dated 29th December, 2009 and no order is warranted on this application. Counsel for the petitioner in reply submits guidelines is paramount to the advertisement and therefore, ought to have been followed. The proof of residential status are both EPIC and Ration Card and were to be produced. The last date for submission of the application was 29th August, 2008 and as guideline was available therefore, the same ought to have been relied on and not the advertisement as held in AIR (1988) SC 1274. Section 65 of the Evidence Act be also considered so also AIR 2000 SCC 2629 and AIR 2004 SC 1923. The adjudicating authority himself issued the guidelines and therefore could not have ignored the same or passed a contrary order. As two of the requisites was not complied with the application could not have been entertained. Without withdrawing the guidelines the findings of the adjudicating authority is in abuse of power as the EPIC Card does not show the marital status of the private respondent No.9, and the same cannot be considered. THEREFORE the order of the adjudicating authority is bad in law and be set aside. Reliance is placed on AIR 2006 SC 1584, AIR 2003 SC 578 and AIR 2008 SC 2796 for the principles of Promissory Estopple. For that there is an admission reliance is placed in 2005 5 SCC 784, 2007 1 SCC 457 and 2009 5 SCC 296.