AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2008 (11) TMI 718
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....n CAP No. 1006 of 2004 and cognate petitions. 3. The case has a checkered history. In early nineties of the last century, the Department of Health & Family Welfare, State of West Bengal suffered acute shortage and non- availability of adequate member of Medical Technologists. In their absence, laboratory and investigation work in Government Hospitals, Laboratories, Medical Colleges, Primary Health Centres, Blood Banks, etc. could not be performed satisfactorily. The Government was worrying as to distress and agony of patients visiting hospitals and dispensaries. It, therefore, took an initiative to fill up requisite number of vacancies of Medical Technologists by taking up the matter with the Employment Exchange. On October 5, 1993, the Assistant Director of Health Services (Administration) issued a Memo to the Director of Employment Exchange for sponsoring names of candidates for the post of Medical Technologist (Laboratory) having requisite qualification of Madhyamik (Secondary)/Higher Secondary with Science along with a certificate of Laboratory Technology from a recognized University or Institution. The post was in the basic pay of Rs. 1040-1920 with other admissible allowance....
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....ten examination, and (ii) oral interview, excluding those who were already in service. It was observed that in the oral test 40% was fixed by the Committee as pass marks. The said standard should be applied on the total marks as pass marks. Appointment should be given from the fresh panel so prepared in order of merit subject to reservation and to fill up vacant posts. Since substantial period had gone in the meanwhile, a direction was also issued that age bar will not come in the way of the candidates in getting appointment. The persons who were selected, appointed and were in employment were protected. It was also observed that every appointment would be subject to medical examination and police verification. A direction was also issued that all appointments should be given within a period of four months from July 1, 2000. The case was thus finally disposed of. 8. The decision of the Tribunal was challenged in writ petitions in the High Court and the High Court, by judgment and order dated November 27, 2000, disposed of the petitions. It observed that the question of retaining those candidates who had been appointed, must be considered afresh by the Tribunal since Tribunal had n....
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....age. It was also contended that once those candidates who participated in the process and could not get themselves selected, had no right to raise objection against such process which had been undertaken in accordance with law. They were estopped by the doctrine of estoppel by turning round and challenging it being illegal or unlawful. 11. It was also contended by the counsel for the State that since posts which were to be filled in were very limited (80) and large number of candidates applied (approximately 4000 candidates), the State authorities had no alternative but to screen candidates by holding written examination. Such a `screening test' was perfectly legal, valid and it could not have been objected. In other words, according to the State, written examination was in the nature of `elimination test'. So far as oral interview was concerned, it was submitted that the Selection Committee was consisting of high ranking officials who acted impartially, objectively and without malice. The allegation that the members of Selection Committee were instrumental in the matter of selection of their close relations was totally baseless. Aggrieved candidates could not give any nam....
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....em also could not be disturbed. Accordingly, a direction was issued to the State authorities to offer appointments to successful candidates in the waiting list subject to availability of vacancies following medical examination and police verification. 16. The above judgment and order was again challenged by the unsuccessful candidates in the High Court and by the impugned order, the High Court allowed the petitions. It observed that the Tribunal had committed an error of law in not directing the authorities to prepare merit list on the basis of marks obtained in the written test as well as viva voce. It was urged that if the marks obtained at the written test had been kept out of consideration, proper selection could not be said to have been made and the entire panel would be invalid. Referring to Raj Kumar and Ors. v. Shakti Raj and Ors. AIR1997SC2110 and Praveen Singh v. State of Punjab and Ors. (2000)8SCC633 , the High Court issued the following directions; We hold that a fresh panel of Medical Technologies has to be prepared by the State Government on the basis of qualifying marks both in the written test as well as in oral test. We, therefore, dispose of all these writ appl....
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....as stated that there was some delay on the part of the authorities because of procedural difficulties and practical problems but it was unintentional. They were always ready and willing to carry out the directions of the Court. An unconditional apology was also tendered by the respondents. 21. The High Court passed an interim order on December 21, 2004. Reading of the order made it clear that the Court was not inclined to issue any direction for removal/termination of services of 66 persons who were working since 3-4 years. The Court directed the State to make inquiries and to report to the Court on January 06, 2005 as to the exact number of vacancies which were available for the appointment of the panel to be prepared. It also directed the State to inform the Court whether nine vacancies which had become defunct, could be revived. 22. On January 06, 2005, again the matter was placed before the Court as per the order dated December 21, 2004. The High Court heard learned Counsel for the parties and noted that a panel of 586 candidates had been prepared on the basis of 40% marks obtained both in the written test as well as oral interview. It also observed that sixty-six persons who....
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....selected candidates, the doctrine of estoppel, waiver or acquiescence does not apply. The entire process of selection got vitiated and directions are required to be issued by this Court to respondent authorities to act in accordance with law. 27. It was stated that several vacancies are still there in the cadre of Medical Technologists and almost all the appellants can be accommodated by the State authorities. It was, therefore, submitted that the appeals deserve to be allowed by issuing consequential directions. 28. The respondent authorities, on the other hand, supported the orders passed by the Tribunal and confirmed by the High Court. It was stated that there is gross and unexplained delay and laches on the part of the appellants in approaching this Court. 29. So far as the order dated August 11, 2003 is concerned, it was submitted that certain directions were issued which were complied with by the authorities. The appellants herein did not challenge those directions at that time. In fact, their grievance was that the authorities had not complied with the orders passed in August, 2003 and hence contempt petition was filed after about ten months. The prayer was to implement t....
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....d to 66 employees. 33. The learned Counsel appearing for 66 employees who were appointed, protected by the Tribunal and by the High Court and who are still in service, submitted that the High Court was wholly right in protecting his clients. It was stated that their names were sponsored by the Employment Exchange, they cleared written examination as well as oral interview; they were declared successful and were appointed. In the Original Application, they were not made parties before the Tribunal. They were, therefore, protected by the Tribunal and there was no illegality therein. The High Court, no doubt, directed the Tribunal to consider the cases of those candidates but it is equally true that they were in service and therefore they were protected even in the second round. The High Court in the second round, expressly stated that since the employees were in service, they needed protection and accordingly direction was issued to that effect. Even during the course of proceedings, it was stated on behalf of the petitioners before the High Court that the protection granted in favour of selected candidates could be continued. It was, however, submitted that similar benefit ought to....
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....econd round, the same ground, that written examination was in the nature of `elimination test' and it was limited to `short listing' of candidates and marks obtained by candidates at the written examination could not be considered for preparation of merit list. The said stage had already gone and the decision in the first round had attained finality so far as the nature of written examination was concerned. The Tribunal and the High Court were, therefore, right in holding in the second round that the merit list was required to be prepared on the basis of composite marks obtained by candidates at the written examination and oral interview both and not only on the basis of marks at the oral interview. 35. The contention on behalf of the appellants that as per the law laid down by this Court in Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors. (1981)ILLJ103SC and other cases that there cannot be more than 15% marks at the oral interview also cannot be accepted at this stage. As already indicated earlier, such a direction was issued as early as in 2000. The appellants, who were applicants before the Tribunal and petitioners before the High Court accepted the said decisio....
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....in Prabodh Verma and Ors. v. State of Uttar Pradesh and Ors. [1985]1SCR216 . 39. True it is that the High Court, in the first round, directed the Tribunal to reconsider the matter of 66 candidates who were selected and appointed observing that the Tribunal had not assigned any reason for granting protection. With respect, it was not factually correct. The Tribunal had recorded reasons, namely, that they had been selected and appointed, they were working since the date of their appointment; they were not joined as respondents and no opportunity of hearing was afforded to them and in their absence and without observing principles of natural justice and fair play, their appointment could not be set aside. 40. Be that as it may, in the second round also, the Tribunal as well as the High Court protected them. 41. Dealing with the selected candidates, the Tribunal stated; Taking an over-all view of the matter as disclosed from material on record, we find that the selection process opted by the Respondent authorities was bonafide and in accordance with the law. Therefore, we approve the action taken by them in the matter. We hold that the entire selection process was not vitiated in ....
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....se sixty-six persons are now working. There were none vacancies which could not be filled up. It also appears from the affidavit of the State that those vacancies have become defunct. The Court is also not inclined to pass any order for removal/termination of services of those sixty-six persons who have been working for last three to four years and have become confirmed. (emphasis supplied) 45. Then while finally disposing of Contempt Petition, the Court said; We, therefore, give liberty to accommodate those sixty six persons in the manner it thinks best and without disturbing their seniority or continuity of service. 46. In fact, it was stated at the Bar that on behalf of the appellants a statement was made before the High Court that appointment of 66 employees may not be disturbed but similar relief could be granted and benefit should be extended to the candidates who had approached the Court. The Court, to that extent, accepted the submission and directed the authorities to consider the cases of those candidates who had obtained requisite 40% marks at written examination and oral test and who could be placed in the merit list along with or above 66 candidates. By taking suc....
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....veral vacancies. The stand of the State Government is equally fair and reasonable. It was stated that those candidates who had grievance against the selection and had not waived their right to get similar treatment and had approached the Tribunal, High Court and this Court, may be granted similar relief. We are also of the view that such relief can be granted in favour of appellants who were agitated and had raised voice against the selection of candidates before the Tribunal, before the High Court and before us. 53. Those candidates who had not approached the Tribunal, High Court or this Court have now filed Interim Applications in this Court. The learned Counsel appearing for those applicants submitted that they may also be granted similar benefits. It was urged that equals must be treated equally which is the fundamental right enshrined in Articles 14 and 16 of the Constitution. It was vehemently argued that it is settled law that fundamental rights cannot be waived. Hence, even if the applicants had not approached this Court earlier, they can come to this Court claiming similar relief by invoking Part III of the Constitution. 54. We are unable to uphold the contention. It is ....
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....by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. (emphasis supplied) 59. From the facts, it is clear that written examination for the selection of Medical Technologists was taken as early as in August, 1995 and list of more than 1,000 candidates was published in June, 1996. By now more than a decade has passed. The applicants who had never challenged the selection before the Tribunal, before the High Court and before us and have applied for the first time in the present proceedings which were instituted in 2005 by filing impleadment applications have thus accepted the position as prevailed in 1996. Qua them, therefore, the matter can be said to have been `settled'. Initiation of proceedings at the instance of those candidates now will `unsettle the settled position'. 60. In our opinion, the learned Counsel for the State is right in contending that even if this Court holds that the appellants who have approached this Court are entitled to some relief, such relief could be granted to those candidates who had grievance against the selection and who had challenged the action of the respondent authoriti....