SEKHAR CHANDRA BISWAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This writ petition is made by one Homeopathy Doctor and another Compounder purportedly working part time basis at a Grain Panehayai: known as Patharghata-II under Nadia District Zilla Parisad. West Bengal purely on. voluntary basis subject to approval by the Zilla Parisad as available from the letter of the Gram Panchayet, 15th August 1997, being Arnnexure P-II to the writ petition. From Annexure P-5 and P-6 being letters dated 5th May, 1998 and -15th May, 1999 written by the Zilla Parisad to the Joint Secretary, Government of West Bengal, Directorate of Health and Family Welfare it appears that Zilla Parisad requested such authority to sanction for establishment of dispensaries proposed to be set up. According to the petitioners, they are working with the approval of the Zilla Parisad from 1998 when the respondents contended that the 'dispensaries proposed to be set up' does not mean dispensary was existing and the petitioners were working there. However, presently the same is not the issue before this Court in view of setting up of various dispensaries in the said Gram Panchayat on and from 1 st June, 2002 admittedly. However, for the purpose of filling up part-time posts of Homoeopathy Doctor and Compounder an interview was taken amongst various candidates including the petitioners on the basis of a notice of the Assistant Secretary of the Zilla Parisad, dated 6th September, 2002. Admittedly the interview was taken at the office of Chief Medical Officer Health {CMOH). The interviewers are CMOH himself, Karmadhakshya, Janaswastha Adhikarik of the Zilla Parisad and the Deputy Secretary of such zilla parisad being an Executive. Admittedly Chief Medical Officer was considered to be the expert. The petitioners have participated in the selection but their candidatures were not considered to be fit and proper for the purpose of Doctor and Compounder on the part time basis in the said Gram Panchayat dispensary. The contention of the writ petitioners is that the process of selection of Homoeopathy Doctor and Compounder is wrong because there was no expert in the Selection Committee having prudent knowledge of Homoeopathy medicine. Moreover, the process of selection only by way of oral interview is running contrary to the transparency of the selection process. Since the validity of the selection process is questioned here by the petitioners, their participation in the selection cannot be said to be nonest in the eye of law. Principles of acquiescence or waiver can be available only when the selection process is correct. If the very root of selection process is under challenge, the question of participation cannot put an embargo.

(2.) Mr. Kamalesh Bhattacharya. learned Counsel appearing on behalf of the petitioner cited paragraph 10 of a judgement reported in AIR 1980 SC 2141 (J. P. Kulshrestha & Ors. vs. Allahabad University & Ors.) wherefrom I find that the Supreme Court held as follows: Certainly, cases arise where the art of interviewing candidates deteriorates from strategy to stratagem and undetectable manipulation of results is achieved by remote control tactics masked as viva vocie tests. This, if allowed, is surely a sabotage of the purity of proceedings, a subterfuge whereby legal means to reach illegal ends is achieved. So it is that courts insist, as the learned Single Judge has, in this very case, suggested on recording of marks at interviews and other fair checks like guidelines for marks and remarks about candidates and the like. If the court is skeptical, the record of the selection proceedings, including the notes regarding the interviews, may have to be made available. Interviews, as such, are not bad but polluting it to attain illegitimate ends is bad. Dr. Martin Luther King Jr. was right when he wrote: "So I have tried to make it clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or even more, to use moral means to preserve immoral ends.

(3.) From paragraph 9 of AIR 2001 SC 152 (Praveen Singh vs. State of Punjab & Ors.) I find that in the above judgment the Supreme Court once again held that vice of manipulation cannot be ruled out though interview undoubtedly is a significant factor in the matter of appointments. It plays a strategic role but it also allows creeping in of a lacuna rendering the appointments illegitimate.