[ad_1]
Calcutta High Court (Appellete Side)
Dr. Aniket Mahata vs The State Of West Bengal & Ors on 30 July, 2025
Author: Biswajit Basu
Bench: Biswajit Basu
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
(CONSTITUTIONAL WRIT JURISDICTION)
Present:
The Hon'ble Justice Biswajit Basu.
WPA 12496 of 2025
Dr. Aniket Mahata
-Vs-
The State of West Bengal & Ors.
with
WPA 12309 of 2025
Dr. Debashis Halder
Vs.
The State of West Bengal & Ors.
with
WPA 12310 of 2025
Dr. Asfakulla Naiya
Vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Pratik Dhar, Ld. Sr. Adv.,
in WPA 12496 of 2025. Mr. Kartik Kumar Ray,
Mr. Debashis Banerjee,
Mr. Rakesh Jana.
For the petitioner : Mr. Samim Ahammed,
in WPA 12309 2025 Mr. Arka Maiti,
& WPA 12310 of 2025. Ms. Gulsanwara Pervin.
For the State : Mr. Kishore Dutta, Ld. AG,
in WPA 12496 of 2025 Mr. Tapan Kumar Mukherjee, Ld. A.G.P.,
and Mrs. Kakali Naskar.
WPA 12310 of 2025.
For the State : Mr. Kalyan Bandopadhyay, Ld. Sr. Adv.,
in WPA 12309 of 2025 Mr. Sirsanya Bandopadhyay, Ld.Sr.
Standing Counsel,
Mr. Pramiti Bandopadhyay,
Mr. Arka Kumar Nag.
1
For the Respondent Nos.2 & 3: Mr. Debayan Sen,
Mr. Niket Ojha.
For the Respondent No.7 : Mr. D.N. Maiti,
in WPA 12496 of 2025 Mr. A. Santra.
& for the respondent no.5
inWPA 12309 of 2025
& WPA 12310 of 2025.
Heard on : 28.07.2025
Judgment on : 30.07.2025
Biswajit Basu, J.
1. The State, in all the matters, has taken a common objection that the
petitioners since are holding civil posts in relation to the civil service
under the State, they should have approached the West Bengal
Administrative Tribunal (hereinafter referred to as the ‘said Tribunal’
in short) first, instead of the High Court directly. On behalf of the
State, it is suggested that to avoid unnecessary wastage of the Court’s
valuable time, the issue regarding maintainability of these writ
petitions may be addressed first. The Court, accepting the said
suggestion, proceeds to dispose of the said objection as the
preliminary issue for all the writ petitions analogously.
2. The objection so raised though was expressly overruled by the Hon’ble
Division Bench of this Court in the case of THE STATE OF WEST
BENGAL & ORS. vs. DR. RAHUL BANSAL & ORS. reported in (2018)
2 Cal LT 436(HC) but the Learned Advocate General and Mr. Kalyan
Bandopadhyay, learned senior advocate who is representing the State
in WPA 12309 of 2025 (Dr. Debashis Halder vs. The State of West
Bengal and Ors.) submit that some of the relevant judgments of the
Hon’ble Supreme Court and the High Courts and the relevant laws on
2
the issue were not placed before the said Hon’ble Division Bench,
therefore, according to them, the issue needs a fresh look.
3. The facts necessary to deal with the said preliminary issue are thus;
the petitioners, as non-sponsored candidates, had pursued M.D./M.S.
courses in their respective disciplines from R.G. Kar Medical College, a
Government Medical College upon execution of indemnity bonds, as
required in terms of the Notification issued by the Department of
Health & Family welfare (MERT) Branch, Government of West
Bengal(hereinafter referred to as ‘the said Department’ in short)
bearing No. HF/O/MERT/912/ME/MISC-78-13 dated July 31, 2013
read with the Notification bearing No. HF/O/MERT/923/ME/MISC-
78-13 dated June 10, 2014. The petitioners, by executing such bonds,
had given an undertaking that after completion of the course, they
shall serve the State for a period of three years, in default, would pay
penalty of a sum of Rs. 10,00,000/-(Rupees Ten Lakhs) for each
defaulting year to the State.
4. The petitioners have completed their respective M.D./M.S. courses
from the said College. The said Department, thereafter, to engage the
petitioners as senior residents at different Medical College
Hospitals/Teaching Institutions under it, had notified the dates for
counselling vide notice bearing No. HAD/12M-01-2025/M/549 dated
March 06, 2025. The petitioners had participated in the said
counselling and had opted for the preferred place of their posting on
the basis of the vacancy list and had also submitted formal self
declaration for Senior Resident (SR) Bond Engagement to the effect
3
that the option so exercised was final and not susceptible to future
change.
5. The Department of Health & Family Welfare, MA(MES) Branch,
Government of West Bengal by the notification bearing no.
HF/O/MA(MES)/353/ME/MISC-161-2025 dated May 27, 2025 and
the notification bearing no. HF/O/HS(MA)/725/SF-11/2025 dated
May 26, 2025 has engaged the petitioners as Senior residents in
different departments of the Institutions mentioned in the list annexed
thereto. The petitioners are challenging the said Notifications on the
ground that the respondent authorities, in assigning posting to them,
have arbitrarily deviated from the merit list as well as the option
exercised by them during the said counselling process without any
cogent reason thereby have rendered the counselling process and the
merit list redundant.
Let me now consider the arguments of the learned counsel for the
parties on the said preliminary issue.
6. The learned Advocate General argues as follows:-
(i) The petitioners are raising disputes in relation to the
condition of their service, which being the ‘affairs of the State’,
squarely comes within the definition of ‘service Matters’, as defined
under Section 3(q) of The Administrative Tribunals Act, 1985
(hereinafter referred to as ‘the said Act of 1985’ in short), besides,
they are holding civil posts and the disputes sought to be raised in the
writ petitions are in relation to their recruitment to the said post,
consequently, by virtue of Section 15 thereof, the jurisdiction, power
4
and authority to decide the said disputes exclusively vests in theTribunal.
(ii) The Hon’ble Supreme Court in the case of STATE OF
ASSAM AND OTHERS vs. SHRI KANAK CHANDRA DUTTA reported
in AIR 1967 Supreme Court 884 and the decision of the Constitution
Bench in the case of STATE OF GUJRAT AND ANOTHER vs. RAMAN
LAL KESHAV LAL SONI AND OTHERS reported in (1983) 2 Supreme
Court Cases 33 has laid down the criteria to identify a ‘civil post’
under the State, the said criteria since are matching with the
incidences of the posts which the petitioners are holding, the
jurisdictional bar under the said Act of 1985 to entertain the writ
petitions by the Single Bench of the High Court comes into play.
(iii) Reliance is placed on the decision of the Hon’ble Supreme
Court in the case of UNION OF INDIA vs. M.A. CHOWDHARY reported
in (1987) 4 Supreme Court Cases 112 to contend that even a
contractual employee under the Government is holding a ‘civil post’
within the meaning of Article 311(1) of the Constitution.
(iv) Reliance is placed on the decision of the Hon’ble Supreme
Court in the case of STATE OF WEST BENGAL AND ANOTHER vs.
WEST BENGAL REGISTRATION COPYWRITERS ASSOCIATION AND
ANOTHER reported in (2009) 14 Supreme Court Cases 132 to
contend that the respondents though were found to be mere licensee
copywriters but had to approach the Tribunal for redressal of their
grievances as in view of the nature of jobs assigned to them, they are
coming within the purview of ‘affairs of the State’.
5
(v) The decision of the Hon’ble Supreme Court in the case of
RAJEEV KUMAR AND ANOTHER vs. HEMRAJ SINGH CHAUHAN
AND OTHERS reported in (2010) 4 Supreme Court Cases 554 is
cited for the proposition that the Tribunals will function as the only
Court of first instance in respect of the areas of law for which they
have been constituted.
(vi) The Hon’ble Supreme Court in the case of ASSOCIATION
OF MEDICAL SUPERSPERCIALITY ASPIRANTS AND RESIDENTS
AND OTHERS vs. UNION OF INDIA AND OTHERS reported in (2019)
8 Supreme Court Cases 607 has held that the petitioners are
rendering a compulsory service to the State under the bond therefore,
to resolve any dispute in relation to the said service, they are required
to approach the Tribunal.
(vii) Heavy reliance is placed on the Judgment of the Hon’ble
Division Bench of the Andhra Pradesh High Court in the case of
MOHAMMAD AZMAT ALI vs. DIRECTOR OF INTERMEDIATE
EDUCATION, ANDHRA PRADESH, HYDERABAD AND OTHERS
reported in 2011 SCC OnLine AP 769 to contend that the person
appointed by the Government on contract service holds a civil post
under the State and the service matters concerning such a person
falls within the ambit of Section 15(1)(a) and (b) of the said Act of 1985
thereby necessitating invocation of the jurisdiction of the Tribunal as
the Court of first instance.
6
7. Mr. Kalyan Bandopadhyay, learned Senior advocate, argues as
follows:-
(i) The Hon’ble Supreme Court in the case of L. CHANDRA
KUMAR vs. UNION OF INDIA AND OTHERS reported in (1997) 3
Supreme Court Cases 261 has upheld the constitutional validity of
the creation of the Administrative Tribunals therefore, when such a
Tribunal is functioning, the petitioners are required to approach it as
a Court of first instance.
(ii) Reliance is placed on the decisions of the Hon’ble Supreme
Court in the case of SHRI KANAK CHANDRA DUTTA (supra) and in
the case of C.C.,C.E. AND S.T. BANGALORE (ADJUDICATION) AND
OTHERS vs. NORTHERN OPERATING SYSTEMS PRIVATE LIMITED
reported in (2022)17 Supreme Court Cases 90 to contend that the
relationship of master and servant between the employer and the
employee can be inferred if all or some of the incidences of
engagement exists e.g., when the employer has a right to control the
manner and method of the work to be done by the employee and when
there is payment of wages or remuneration by the employer to the
employee. In the instant matters, the State controls the nature of jobs
to be assigned to the petitioners and the manner in which the
petitioners are required to discharge the said assignment, the
remuneration would be paid to them from the head of salary account
of the existing staff of same categories of the institution to which they
will be attached, therefore, all these incidents of the engagement of the
petitioners are indicative of existence of master-servant relationship
7
between the petitioner and the State, sufficient to attract the provisionof Section 15 of the said Act of 1985, in consequence thereof, the
Tribunal is vested with exclusive jurisdiction to deal with the issues
sought to be canvassed in the present writ petitions.
8. Mr. Pratik Dhar, learned senior advocate for the petitioner in WPA
12496 of 2025 argues as follows:-
i. The object of creation of Tribunals as enshrined under Article
323-A of the Constitution is to establish Administrative
Tribunals to adjudicate disputes with respect to recruitment
and conditions of service of the persons appointed in public
service. The legislature, to achieve the said object, has
promulgated the said Act of 1985 to create such Tribunals.
Section 15 of the said Act of 1985 vests exclusive jurisdiction,
powers and authority upon the Tribunal to decide such
disputes.
ii. The petitioners neither have been recruited in the civil service of
the State nor have been appointed in a civil post under the
State, they have been merely ‘deployed’ as senior residents, as
such, the dispute raised in the writ petitions cannot come
within the meaning of ‘service matters’ as defined under Section
3(q) of the said Act of 1985 and the scope of Section 15 thereof
cannot be enlarged so as to include the said disputes within its
sweep.
iii. The phrase “appointment” or the phrase “recruitment’ in relation
to a civil post under the State or to any civil service of the State
8
postulates some procedures to be followed such as publicationof proper advertisement inviting applications from eligible
candidates, holding of a selection process by a body of experts,
issuance of proper orders of appointment to the eligible
person(s), to follow such procedures is the mandate of the
Articles 14 and 16 of the Constitution but the same are absent
in engaging the petitioners, reference in this context is made to
the decisions of the Hon’ble Supreme Court in the case of
UNION PUBLIC SERVICE COMMISSION vs. GIRISH JAYANTI
LAL VAGHELA AND OTHERS reported in (2006) 2 Supreme
Court Cases 482, in the case of STATE OF ORRISA AND
ANOTHER vs. MAMATA MOHANTY reported in (2011) 3
Supreme Court Cases 436, in the case of TAGIN LITIN vs.
STATE OF ARUNACHAL PRADESH AND OTHERS reported in
(1996) 5 Supreme Court Cases 83 and in the case of
PRAFULLA KUMAR SWAIN vs. PRAKASH CHANDRA MISRA
AND OTHERS reported in 1993 Supp(3) Supreme Court Cases
181.
iv. Reliance is placed on an unreported decision dated March 17,
2025 of the Hon’ble Supreme Court passed in Special Leave
Petition(Civil) NO. 19648 of 2023(THE JOINT SECRETARY,
CENTRAL BOARD OF SECONDARY EDUCATION & ANR. vs.
RAJ KUMAR MISHRA & ANR.) to contend that the master-
servant relationship between the employer and employee cannot
be inferred only on the ground that the employer has
9
supervisory and jurisdictional control over the employee, such
approach is not only very simplistic but also erroneous under
the law, a direct master and servant relationship has to be
established on paper.
v. The petitioners have not been appointed or recruited in any civil
post under the State, the Department of Health & Family
Welfare, MA (MES) Branch, Government of West Bengal, by the
impugned notifications bearing no. HF/O/MA(MES)/353/
ME/MISC-161-2025 dated May 27, 2025 and bearing no.
HF/O/HS(MA)/725/SF-11/2025 dated May 26, 2025, has only
deployed the petitioners as senior residents in the Medical
Colleges or Institutions to discharge their obligation to serve the
State for the bond period, the provision of Section 15 of the said
Act of 1985 does not get attracted as there is no appointment
and/or recruitment.
vi. The Hon’ble Division Bench of this Court in the case of RAHUL
BANSAL (supra), after considering all relevant judgments of the
Hon’ble Supreme Court and all relevant laws holding the field
had expressly overruled the identical objection taken by the
State, holding inter alia, that the doctors who had executed the
indemnity bonds in favour of the State to get admission in the
State medical teaching institutions, were not appointed in the
service of the State nor were holding a civil post, they were
deployed as contractual medical officers, as such are not
Government servants. The Hon’ble Division Bench, in coming to
10
the said conclusion had considered the decisions of the Hon’ble
Supreme Court in the case of SHRI KANAK CHANDRA DUTTA
(supra) and RAMAN LAL KESHAV LAL SONI (supra).
vii. The Hon’ble Division Bench since has considered the issue in
detail, there is no scope to take a different view. However, even
in the case of disagreement with the said judgment of the
Hon’ble Division Bench, the only course left open to this Court
is to refer the issue to the Hon’ble The Chief Justice for
constitution of a Larger Bench to examine it, as has been held
by the Hon’ble Supreme Court in the case LALA SHRI
BHAGWAN & ANOTHER vs. SHRI RAM CHAND & ANOTHER
reported in 1965 SCC OnLine SC 73 and by the Hon’ble
Division Bench of this Court in the case of SUDIPTA KOLEY
VS. M. BHOWMICK AND ORS. passed in WP No. 84 of 2019 on
July 10, 2019.
viii. A decision is an authority for what it decides and not what can
logically be deduced therefrom, in support of such contention,
reliance is placed on the decision of the Hon’ble Supreme Court
in the case of COMMISSIONER OF CUSTOMS(PORT), CHENNAI
vs. TOYOTA KIRLOSKAR MOTOR(P) LTD. reported in (2007) 5
Supreme Court Cases 371. None of the judgments cited on
behalf of the State qualifies the said test, they are all factually
distinguishable and are irrelevant to the issue under
consideration.
11
9. Mr. Samim Ahammed, the learned advocate for the petitioners in WPA
12309 of 2025 and WPA 12310 of 2025 argues as follows: –
(i) The petitioners have been engaged under indemnity bonds to
serve the State for a fixed period, in view of the nature of their
such engagement, it cannot be said that they are holding a ‘civil
post’ under the State within the meaning of Article 311 of the
Constitution, reference in this context is made to the decision of
the Hon’ble Supreme Court in the case of STATE OF
KARNATAKA VS. AMEERBI & ORS. reported in (2007) 11
Supreme Court Cases 681.
(ii) Selection and appointment by a competent government
authority, payment of salary from public funds, control and
supervision by the Government, though not individually
exclusive but are determining factors in totality to decide as to
whether a person holds a civil post. In the instant case, there is
no selection process and in absence thereof, it cannot be said
that the petitioners have been appointed in any post, rather
they have been ‘deployed’ to serve the State during the bond
period, therefore, by no stretch of imagination, such deployment
can be said to be appointment in civil posts under the State.
The Hon’ble Supreme Court, in the case of SHRI KANAK
CHANDRA DUTTA(supra), has clarified “what a civil post
signifies”, which was also considered by the Hon’ble Division
Bench in the case of RAHUL BANSAL (supra).
12
(iii) Reliance is placed on the decisions of the Hon’ble Supreme in
GIRISH JAYANTI LAL VAGHELA (supra) and in the case of
KARNATAKA STATE ROAD TRANSPORT CORPORATION AND
ORS. vs. S.G. KOTTURAPPA AND ORS. reported in(2005) 3
Supreme Court Cases 409 to contend that persons engaged on
short term terminable contracts without recourse to statutory
recruitment process do not hold ‘civil post’.
(iv) Reliance is placed on the decision of the Hon’ble Supreme Court
in the case of ANDHRA PRADESH STATE ELECTRICITY BOARD
AND ORS. vs. M.A. HAI AZAMI AND ORS. reported in (1992)
Supp(1) Supreme Court Cases 660 to contend that if the relief is
unconnected with the public post and independent of service
conditions thereof, the Tribunal has no jurisdiction to deal with
such claim.
(v) The Department of Health & Family Welfare, Health
Services(Medical Administration) Branch, Government of West
Bengal by an order bearing Memo no. HF/O/HS(MA)/222/HFW-
43011(11)/152/2022-ADMIN dated February 16, 2023 has laid
down the Standard Operating Procedure for dealing with different
issues of non-sponsored candidates engaged as senior residents
under indemnity bond, Paragraph 7A thereof though mentions
the phrase ‘appointment’ but the said phrase alone is not decisive
to understand the nature of their engagement. The term
‘appointment’ is context-specific, to buttress the said argument,
reliance is placed on the decision of the Hon’ble Supreme Court
13
in the case of STATE OF GUJARAT AND ORS. vs. P.J.
KAMPAVAT AND ORS. reported in (1992)3 Supreme Court
Cases 226.
(vi) The petitioners have not been appointed in terms of West Bengal
Service (Appointment, Probation and Confirmation) Rules, 1979,
as such cannot claim the status of “Government employees”as
defined under Rule 2(c) of the West Bengal Services (Duties,
Rights and Obligations of Government Employees) Rules, 1980, it
is therefore an absurd suggestion that the Tribunal would be an
appropriate forum to adjudicate their grievances.
(vii) The State, before the Full Bench of this Court in the case of
TANMAY GHOSH AND ORS. vs. STATE OF WEST BENGAL
reported in 2015 (2) CHN (CAL) 461 took a specific stand that
the civil defence volunteers were contractual appointees, as such
cannot said to be holding ‘civil posts’, therefore, neither the said
Act of 1985 applies to them nor they are entitled to the protection
under Article 311 of the Constitution. The State, however is now
contradicting its said earlier stand only to delay the disposal of
the present writ petitions, though the said issue has been settled
by the Hon’ble Division Bench in the case of RAHUL
BANSAL(supra) with a caution as recorded in the paragraph 39
the judgment, therefore, the said objection may be overruled with
exemplary costs.
14
10. Reply of the learned Advocate General
The petitioners have not explained the nature of their engagement in
the Government hospitals, they are, at least, no longer students. The
Hon’ble Supreme Court in the decision of ASSOCIATION OF MEDICAL
SUPERSPERCIALITY ASPIRANTS AND RESIDENTS (supra) has
identified the engagement of the doctors like petitioners as service
under the State. The dispute with regard to the condition of their such
service, naturally comes within the purview of ‘service matters’,
consequently the provision of Section 15 of the said Act, 1985, gets
attracted.
Heard learned counsel for the parties, perused the materials-on-
record.
11. In the case of RAHUL BANSAL (supra), the Hon’ble Division Bench, in
the backdrop of similar factual matrix, had overruled the identical
objection of the State, nonetheless the State has once again invited this
Court to decide the said issue on the ground that the relevant
judgments of the Hon’ble Supreme Court and the High Courts so also
the laws governing the field were not placed before the said Hon’ble
Division Bench, had there been so, the decision would have been
otherwise.
The task of this Court, therefore, is confined to the scrutiny as
to whether in the said case, relevant judgments and laws were left out
of the consideration of the said Hon’ble Division Bench.
12. On a close reading of the paragraphs 13, 14 and 18 of the said
judgment, it is apparent that the Hon’ble Division Bench has
15
extensively considered the meaning of ‘government employee’, the
definition of ‘service matters’ as defined under Section 3(q) of the said
Act of 1985, the scope and ambit of Section 15 thereof, therefore, I am
unable to accept that the Hon’ble Division Bench was not apprised of
the relevant provisions of the said Act of 1985 or the laws governing the
field. To understand the extent of consideration of the relevant laws on
the issue by the said Hon’ble Division Bench, the aforementioned
paragraphs of the judgment of RAHUL BANSAL (supra) are reproduced
below: –
“13. There seems to be little doubt that
employment, whether private or public, has its
origin in a contract. Ordinarily, two persons having
entered into a contract with one party to the
contract willing to serve the other on terms and
conditions as agreed upon by and between them,
the person employing is called the employer while
the employee is the other party to the contract who
agrees to render work for the employer. Insofar as
employment under the State is concerned, i.e.
public employment, although it is initially
contractual, but the terms and conditions of service
being regulated by statutory provisions, the
employee upon accepting the terms and conditions
of the offer of appointment earns the status of a
Government employee. In terms of rule 2(c) of the
West Bengal Services (Duties, Rights and
Obligations of Government Employees) Rules, 1980
a Government employee means “a person
appointed to a service or post in connection with
the affairs of the State”.
14. Employment of a person for rendering
services under the Union and the States is covered
by Part XIV of the Constitution. While Article 309
relates to recruitment and conditions of service of
person serving the Union or a State, Article 310
relates to tenure of office of persons serving the
Union or a State. The control that can be exercised
by the Union or a State over any one of its
employees is, however, subject to the safeguards in
Article 311. For the purpose of conducting
16
examinations for appointment to the service of the
Union as well as the States, the Constitution in
Article 320 has ordained that it shall be the Union
Public Service Commission or the State Public
Service Commissions, as the case may be, to
conduct such examinations. These provisions of
the Constitution have to be borne in mind while
understanding the ambit and scope of section 15 of
the 1985 Act.
……..
18. The definition of ‘service matters’ is
wide enough to take within its fold any kind of
dispute that could arise in relation to a person’s
conditions of service in connection with the affairs
of the Union or of a State. However, ‘civil post’ has
not been defined in the 1985 Act.”
13. The Hon’ble Division Bench, to trace the meaning of the term ‘civil
post’, at first, had considered the case of SHRI KANAK CHANDRA
DUTTA (supra) and at paragraph 21 of the judgment has concluded
as follows:-
“21. The decision in Kanak Chandra
Dutta (supra) seems to be the first, where the
meaning of the term ‘civil post’ was attempted to
be traced by the Supreme Court. Let us now take
a quick look at subsequent decisions of the
Supreme Court, upon consideration of Kanak
Chandra Dutta (supra).”
14. The Hon’ble Division Bench, thereafter, had proceeded to consider
the decision of the Constitution Bench of the Hon’ble Supreme Court
in the case RAMAN LAL KESHAV LAL SONI (supra) with respect to
laying down of any distinctive test to determine when can a person be
said to hold a civil post under the Government and at paragraph 23
of the judgment, has held that whether a person is a servant of the
State or not, is a question of fact. The said paragraph of the said
judgment is quoted below :-
17
“23. What follows from the aforesaid
extract is that whether a person is a servant of
the State or not, is a question of fact which is to
be decided in each case depending on the
circumstances of that case.”
15. The Hon’ble Division Bench, then, had proceeded to consider the
decision of the Hon’ble Supreme Court in the case of GIRISH
JAYANTI LAL VAGHELA (supra) on the issue as to whether a person
working under the Government on a contract basis is a ‘Government
servant’ and at paragraph 25 of the said judgment, has held as
follows:-
“25. The aforesaid decision, therefore, is
an authority for the proposition that where the
Government appoints a person on contract de
hors the statutory rules for recruitment and
violating the guarantee of equality enshrined in
Article 16 of the Constitution, such a
contractual appointee does not become a
Government servant.”
16. The Hon’ble Division Bench, next, at paragraph 26 of the judgment,
had considered the decision of Hon’ble Supreme Court in the case of
AMEERBI (supra), in the said decision, the Hon’ble Supreme Court
has held that the State, in terms of a scheme, may exercise control
over a section of persons working but thereby only, they do not
become entitled to protection under Article 311 of the Constitution.
The said paragraph 26 of the judgment of the Hon’ble Division
Bench, is quoted below, for ready reference : –
“26. The Supreme Court, yet again, in
the decision reported in (2007)11 SCC 681
(State of Karnataka v. Ameerbi), had the
occasion to consider whether anganwadi
workers hold civil posts and whether their
application before the State Administrative
Tribunal was maintainable under section 15 of
18
the 1985 Act or not. Upon consideration of
various decisions, which included Kanak
Chandra Dutta (supra) but not Raman Lal
Keshav Lal Soni (supra) and Girish Jayanti Lal
Vaghela(supra), it was held that the
respondents in the civil appeal were not the
holders of any civil post and, therefore, the
tribunal had no jurisdiction to entertain the
application. The tests laid down in Kanak
Chandra (supra) were not accepted on the
following reason:
“20. Anganwadi workers, however,
do not carry on any function of the
State. They do not hold post under a
statute. Their posts are not created.
Recruitment rules ordinarily
applicable to the employees of the
State are not applicable in their case.
The State is not required to comply
with the constitutional scheme of
equality as adumbrated under Articles
14 and 16 of the Constitution of India.
No process of selection for the
purpose of their appointment within
the constitutional scheme exists. We
do not think that the said decision
has any application in the instant
case.”
The decision reported in (1992) 4 SCC
432(Union of India v. Deep Chanda Pandey),
wherein casual employees were found to come
within the purview of Section 14(1) of the 1985
Act was distinguished on the ground that the
employees were seeking temporary status and
they had claimed a right to continue in
employment; and, in view of the nature of the
claim, the Supreme Court had opined that the
application under section 14 of the 1985 Act
was maintainable. Insofar as the other cited
cases are concerned, it was noticed that the
same centres around application of a statute,
all the posts were statutory ones, and terms
and conditions of services of the holder of the
posts were governed by statues. Considering
that anganwadi workers were appointed under
a scheme which is not of a permanent nature,
although the same might have continued for a
long time, and that the recruitment process was
carried out through a committee, the Court
observed that the same would not render the
19
incumbents as holders of civil posts. One of the
questions raised before the Court was in regard
to the right of an anganwadi worker to contest
an election. It was held that they are
indisputably free to do so” and further that a
“holder of a civil post may not be entitled
thereto”. Finally, it was held that the State in
terms of a scheme may exercise control over a
section of persons working but thereby only,
they do not become entitled to protection under
Article 311 of the Constitution.”
17. The Hon’ble Division Bench, to ascertain the nature of engagement of
similarly placed doctors, thereafter had considered the Notification
bearing No. HF/O/MA/1468/HPT/23T-35-16 dated July 26, 2016
issued by the Department of Health & Family Welfare, Medical
Administration Branch for contractual engagement of upto 230 pass-
out non-service Post Doctoral/MD/MS/Post Graduate diploma
students from West Bengal University of Health Sciences by
deploying them as Specialists in Multi/Super Speciality and
Secondary Tier hospitals in West Bengal and at paragraphs 28 to 31
of the judgment, has concluded its finding as follows: –
“28. The notification dated July 26,
2016 in its subject clearly makes a distinction.
The notification is applicable to “non-service
post-Doctoral/MD/MS/Post Graduate Diploma
students from the West Bengal University of
Hu8ealth Sciences”. It refers to contractual
engagement by deploying the students as
specialists in the multi/super speciality
hospitals and other hospitals in West Bengal
after publication of their results at a
consolidated monthly remuneration of Rs.
50,000/- for the period as per the bond
executed by the incumbents during their entry
in the courses under the West Bengal
University of Health Sciences. As has been held
in Raman Lal Keshav Lal Soni (supra), a single
factor may not be considered as absolutely
20
essential for determining whether one is the
holder of a civil post and, therefore, merely
because the charge for paying consolidated
monthly remuneration to the students is
debitable under the existing head of account in
respect of salaries of existing staff of same
categories of institutions, it is not decisive. The
other factors mentioned in Raman Lal Keshav
Lal Soni (supra), as found from the passage that
we have extracted above, would be necessary to
be examined but in the absence of the relevant
data, it would be difficult for us to embark on
such an exercise. Even in terms of the decision
in Girish Jayanti Lal Vaghela, a person
appointed by the Government on contract basis
without following the rules does not become a
Government servant.
29. However, even in the absence of the
necessary data to examine the claim on the
anvil of the decision in Raman Lal Keshav Lal
Soni (supra), what is interesting to note is that
the writ petitioner does not appear to have been
appointed either in the services of the State or
on a civil post. The writ petitioner, along with
other doctors, was merely deployed to act as a
contractual medical officer. The dictionary
meaning of the word deploy, relevant for our
purpose, is to use something or someone,
especially in an effective way.
30.We have no doubt in our mind that
the word ‘deploy’ has been used consciously
instead of ‘appoint’ so as not to make available
to the pass out non-service Post-
Doctoral/MD/MS/Post Graduate Diploma
students from the West Bengal University of
Health Sciences the protection that is normally
available to a Government servant under Article
311 of the Constitution. Once the Government
has consciously decided against appointment of
such non-service students in the services of the
State or on civil posts, for whatever reason it
might have had in mind, it is not open to it at
this stage, to overcome the rigours of the
directions contained in the impugned judgment
and order, to contend that the writ petitioner
ought to have moved the tribunal.
21
31. Assuming that the writ petitioner
was appointed and not merely deployed, his
appointment is no more than a contractual one
for a period of 2(two) years on a monthly
remuneration. There are no terms and
conditions of service mentioned in the
notification dated August 07, 2017. Applying
the law laid down in Girish Jayanti Lal Vaghela
(supra), the conclusion is inescapable that the
writ petitioner is not a Government servant.
18. In RAHUL BANSAL‘s(supra) case, the Department of Health &
Family Welfare, Medical Administration Branch, Government of West
Bengal by the notification bearing No. HF/O/MA/1060/HPT/32M-
77-17 dated August 07, 2017 had deployed the respondent (Dr.
Rahul Bansal) to an Institution mentioned in Column ‘E’ in the list
annexed with the said Notification to serve the State as ‘Contractual
Medical Officer(Specialist)’ for the bond period.
The identical notifications of the Department dated May 26,
2025 and May 27, 2025 whereby the petitioners have been deployed
to serve the State for the bond period are under challenge in the
present writ petitions.
A comparison between these two sets of notifications would
clearly show the similarities in terms of the object sought to be
achieved by the said notifications inasmuch as all the above
notifications aim to deploy pass-out Non-sponsored post graduate
doctors to serve the Medical Institutions in the State as per the bond
executed by them, moreover the common source notification is the
Notification issued by the Department bearing No.
HF/O/MERT/923/ME/MISC-78-13 dated June 10, 2014, only the
terminology associated therewith differs, the aforesaid Notification
22
dated August 07, 2017 refers to the doctors so deployed as
‘Contractual Medical Officer(Specialist)’ whereas in the impugned
Notifications, such doctors are referred to as ‘Senior Residents’,
therefore the purport of the aforesaid Notifications cannot be inflated
to entertain the possibility that posts were created and that the
doctors so deployed in the service of the State were appointed in the
posts of Contractual Medical Officer(Specialist) or Senior
Residents.
19. The Hon’ble Division Bench, in the case of RAHUL BANSAL (supra)
has extensively analysed the meaning of the word ‘deploy’ and the
nature of engagement of persons deployed to serve the State during
the bond period in terms of the aforesaid Notifications, as such the
said decision is the authority for the ratio decidendi that such
engagement cannot be equated to appointment in a civil post and
that the persons so engaged are not ‘Government servants’ this
Court, therefore, is bound by the said ratio and is not inclined to take
any other view.
20. It is clear from the above discussion that in the decision of RAHUL
BANSAL(supra), the Hon’ble Division Bench had considered all the
relevant provisions of the said Act of 1985 and the relevant
judgments of the Hon’ble Supreme Court in coming to a conclusion
that the objection regarding maintainability of similar type of writ
petition before the High Courts is not sustainable and has
accordingly overruled it.
23
21. Even an independent scrutiny to the issue by this Court would
inevitably result in same conclusion regarding the nature of
engagement of the petitioners inasmuch as by no stretch of
imagination, such engagement and/or deployment can be equated
with the appointment or recruitment in a public office, suffice to
quote paragraph 12 of GIRISH JAYANTI LAL VAGHELA(supra).
“12. Article 16 which finds place in Part
III of the Constitution relating to fundamental
rights provides that there shall be equality of
opportunity for all citizens in matters relating to
employment or appointment to any office under
the State. The main object of Article 16 is to
create a constitutional right to equality of
opportunity and employment in public offices.
The word “employment or appointment” cover
not merely the initial appointment but also
other attributes of service like promotion and
age of superannuation, etc. The appointment to
any post under the State can only be made after
a proper advertisement has been made inviting
applications from eligible candidates and
holding of selection by a body of experts or a
specially constituted committee whose members
are fair and impartial through a written
examination or interview or some other rational
criteria for judging the inter se merit of
candidates who have applied in response to the
advertisement made. A regular appointment to
a post under the State or Union cannot be
made without issuing advertisement in the
prescribed manner which may in some cases
include inviting applications from the
employment exchange where eligible candidates
get their names registered. Any regular
appointment made on a post under the State or
Union without issuing advertisement inviting
applications from eligible candidates and
without holding a proper selection where all
eligible candidates get fair chance to compete
would violate the guarantee enshrined under
Article 16 of the Constitution.”
24
22. A decision is an authority for what it decides and not what can
logically be deduced therefrom, as has been held by the Hon’ble
Supreme Court in the case of TOYOTA KIRLOSKAR MOTOR (supra).
The judgments cited on behalf of the State fail to qualify the said test
of relevancy. However, this Court, to allay the objection raised by the
State, shall venture an extra mile to hold that the judgments relied
on by the State are no pointer to the issue inasmuch as those are
distinguishable on facts.
In the case of WEST BENGAL REGISTRATION COPYWRITERS
ASSOCIATION (supra), the issue was whether the copywriters are
entitled to regular appointment under the State, obviously, for such
relief, one has to approach the Tribunal.
The case of M.A. CHOWDHARY (supra) is a case of appointment
and re-employment of a person, which is not the situation here.
In RAJEEV KUMAR (supra), the Hon’ble Supreme Court did not
approve addition of a party in the High Court for the first time in a
case which was originated from the Tribunal, the said case stands on
a different factual footing and is not remotely related to the issue
under consideration.
In the case of ASSOCIATION OF MEDICAL SUPERSPECIALITY
ASPIRANTS AND RESIDENTS (supra), the Hon’ble Supreme Court
has decided the constitutional validity of the bond, as such, the said
case is no pointer to the issue under consideration.
In the case of MOHAMMAD AZMAT ALI (supra), the issue before
the Hon’ble Division Bench of the Andhra Pradesh High Court was
25
whether a dispute raised by a person appointed by the State on
contract basis under the relevant rules of the State would fall under
the ambit of Section 15 of the said Act of 1985, in the present case,
there is no question of appointment, therefore, the ratio of law laid
down in the said decision is not applicable here.
There is no dispute with the proposition of law laid down in L.
CHANDRAKUMAR (supra) but this decision is of no help in deciding
the present issue, so the decision in C.C.,C.E. AND S.T.
BANGALORE (ADJUDICATION) (supra).
23. The Hon’ble Division Bench, at paragraph 39 of the judgment,
which is quoted below, had cautioned the State against pursuing
unmeritorious appeals: –
“39. Before parting, we wish to record
that the controversy that we were called upon
to resolve in this writ appeal has bared once
again the strange ways of functioning of the
Government machinery. Unmeritorious appeals
like this not only clog the docket but precious
judicial hours are lost in hearing and disposal
of the same, when the time taken therefor could
have been put to better use by us for the overall
benefit of the State and its people. We hope and
trust that the State Government would be more
careful in the future in deciding whether to
unnecessarily prolong the life of a litigation by
presenting such an appeal which is thoroughly
unmeritorious.”
In an ideal scenario the State, keeping the said caution in mind,
should have done due diligence and should have taken care and caution
before re-agitating the identical objection which has already been
overruled by the Hon’ble Division Bench of this Court in the case of
26
RAHUL BANSAL (supra) but in the present case, such care and caution
have not been taken, however, this Court still reposes confidence on the
State that in future, same would not be overlooked.
Summing up the discussion made above, this Court decides the
preliminary issue in favour of the petitioners overruling the objection of
the State.
The writ petitions are now taken up separately on merits.
Parties to act on the server copy of the judgment duly downloaded
from the official website of this Court.
Urgent Photostat certified copy of the judgment, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(BISWAJIT BASU, J.)
LATER
After delivery of judgment Mr. Arka Nag, learned Advocate for the
State prays stay of operation of it, the prayer is considered and refused.
A prayer for adjournment of the hearing of the writ petitions is made
on behalf of the State.
On July 28, 2025, when the judgment was reserved, it was made clear
to the State that in the event the objection is not sustained, the hearing
would commence immediately after delivery of judgment.
Learned Advocate General submits that the State intends to assail the
judgment delivered today in appeal, for which some time is necessary.
27
The State, of course, has a right of appeal, but the prayer of the
petitioner for interim protection is equally justified.
The respondents, therefore, are restrained from taking any coercive
step against the petitioner in WPA 12496 of 2025 till the disposal of the
matter.
The writ petitions would be taken up for hearing on merit separately
at the first sitting of the Court on August 05, 2025, list the matters
accordingly.
Urgent Photostat certified copy of the judgment, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(BISWAJIT BASU, J.)
28
[ad_2]
Source link