Tripura High Court
Sri Somen Baidya vs The State Of Tripura on 10 February, 2020
Equivalent citations: AIRONLINE 2020 TRI 38
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.99 of 2015
Sri Somen Baidya,
son of Sri Ratan Lal Baidya, resident of
village & P.O. Kashari, P.S. P.R. Bari,
District- South Tripura
-----Petitioner
Versus
1. The State of Tripura,
to be represented by the Secretary-cum-
Commissioner to the Department of Health &
Family Welfare, Government of Tripura,
Secretariat Complex, P.O. Secretariat
Complex, P.S. New Capital Complex, Agartala,
West Tripura, PIN-799010
2. The Director,
Directorate of Health Services, Government of
Tripura, P.O. Agartala, P.S. West Agartala,
District- West Tripura
3. ** Sri Bishnu Debnath,
son of Narayan Debnath, resident of village-
Kalachara, P.O. Bhuratali, P.S. Manubazar,
Sabroom, District- South Tripura
4. Sri Raju Danda,
son of Amarendra Danda, resident of village &
P.O. South Sonaichari, P.S. Belonia, District-
South Tripura
5. Sri Biswajit Sen,
son of Sri Manik Sen, resident of village & P.O.
Debdaru, P.S. Baikhora, District- South Tripura
6. Sri Sanjib Banik,
son of late Hrishikesh Banik, resident of
village- Rabindranagar, P.O. Kanchanpur,
District- North Tripura
7. ** Sri Chinmoy Debnath,
son of Ratan Debnath, resident of village-
Mohanpur, P.O. Majlishpur, P.S. Ranirbazar,
District- West Tripura
8. Sri Bhaskar Purakayastha,
son of Sri Bhabatosh Purakayastha, resident of
village & P.O-Jogendranagar, near Vidhyasagar
Girls School, Agartala, District- West Tripura
Page 2 of 9
9. Sri Kajal Paul,
son of Badal Paul, resident of village & P.O.
Lembucherra, P.S. Kamalpur, District- Dhalai,
Tripura
10. Sri Protim Kr. Sinha,
son of Krishna Kr. Sinha, resident of West
Kanchanbari, P.O. Kanchanbari, District-
Unakoti
11. Sri Sukanta Banik,
son of late Prafulla Ch. Banik, North
Badharghat (Madhyapara) , P.O. A.D. Nagar,
P.S. A.D. Nagar, District- West Tripura
----Respondents
** As per Hon'ble Courts order dated 04.01.2020 passed in I.A. No.3 of 2020, the names of the respondents No.3 & 7 have been deleted from the array of the parties.
For Petitioner(s) : Mr. A. Bhowmik, Adv.
For Respondent(s) : Mr. D. Bhattacharjee, G.A.
Date of hearing and : 10.02.2020
delivery of Judgment & Order
Yes No
Whether fit for reporting : √
HON'BLE MR. JUSTICE S. TALAPATRA
JUDGMENT & ORDER [ORAL]
Heard Mr. A. Bhowmik, learned counsel appearing for the petitioner as well as Mr. D. Bhattacharjee, learned G.A. appearing for the respondents No.1 & 2. None appears for the remaining respondents. However, the name of the respondents No.3 & 7 have been deleted under the order of this court and at the instance of the petitioner.
[2] In terms of the notification under No.ICA-D-771/13, Annexure-X to the rejoinder filed by the petitioner on 01.07.2016, the petitioner had applied for the post of Page 3 of 9 Pharmacist [Allo] under the Health and Family Welfare Department, Government of Tripura inasmuch as he had all the essential qualifications for the said post. From the advertisement, it evinces that there were 7 posts for SC category candidates, 53 posts for ST category candidates and 13 posts for UR category candidates. In total, posts notified for filling up was 73. The petitioner is concerned with the post available for UR category. Out of 13[thirteen] posts under the said category, 1[one] post is allocated for physically handicapped person and other 4[four] posts for Ex-serviceman. [3] At the outset, Mr. Bhowmik, learned counsel appearing for the petitioner has submitted that there are unfilled post of Pharmacist [Allo] for the UR category [Ex- serviceman]. The case of the petitioner as projected in this writ petition may briefly be introduced at the outset.
The petitioner completed his degree of Pharmacy on 10.07.2013 and in terms of the said notification, the petitioner had applied along the private respondents for the post of Pharmacist [Allopathy]. The petitioner made an inquiry why he has been excluded inasmuch the petitioner has got the better public examination results than the respondent No.10 and few others. Under the authority of RTI Act, the petitioner got some information on 13.01.2015 from where he shows that out of 20 marks as allocated for determining the comparative merit of the petitioner in the walk in interview, he has been given 9. Other candidates were given the higher marks than the petitioner. Mr. Page 4 of 9 Bhowmik, learned counsel has laboured hard to press this court that if the comparison is made between the examination result and the persons who got the appointment and the petitioner, it will be apparent that the petitioner is superior then some of the private respondents when those private respondents have been given the appointment in the post of Pharmacist [Allo] but the petitioner has been left out. Mr. Bhowmik, learned counsel has thereafter submitted that the respondent No.10 on the day of walk in interview did not have the registration from the State Pharmacy Council or the Central Pharmacy Council. He was therefore, unfit on the day of interview to be appointed or even recommended as the registered Pharmacist. The Pharmacy Act, 1948 made the various provisions for the Pharmacist [see Section 10 of the said Act] as well as constitution and functions of the councils at various levels including opening of the Register from the cut off date as provided in the said Act. The petitioner has categorically stated that the respondent No.2 was not registered with the State Pharmacy Council and that has been admitted by Mr. Bhattacharjee, learned G.A. appearing for the official respondents. Mr. Bhowmik, learned counsel having referred to Para-19 of the reply filed by the official respondents on 16.06.2015 has contended that the respondents No.1 & 2 have clearly admitted that the respondent No.10, Protim Kr. Sinha was not a registered Pharmacist under the State Pharmacy Council but later on i.e. 27.01.2014 he was registered vide registration certificate No.A-2175 dated 27.01.2014. Mr. Page 5 of 9 Bhattacharjee, learned G.A., has, therefore, contended that the when the petitioner was appointed in the post of Pharmacist [Allo] he was the registered Pharmacist and he had no embargo in dispensing the medicine on the basis of his educational qualification and registration. Mr. Bhowmik, learned counsel has seriously contended that no transparent guidelines is available, based on which the competence and comparative merit of the petitioner has been adjudged by the selection board at the time of walk in interview. There is no dispute that unless a person is registered as the Pharmacist [Allo] he cannot be engaged as Pharmacist [Allo]. The Pharmacy Council of India is in the country level and the State Pharmacy Council is in the state level, they places their respective role in the given jurisdiction or area as provided under the Pharmacy Act, 1948. But in this case, Section 41 of the Pharmacy Act, 1948 under Chapter-V is relevant which provided that the description of 'pharmacist', 'chemist', 'druggist', pharmaceutist', 'dispenser', 'dispensing chemist' or any combination of such words [or of any such word with any other word] shall be deemed to be reasonably calculated to suggest that the person using such description is a person whose name is for the time entered in the register of the State. Mr. Bhowmik, learned counsel has launched his submission from unambiguous circumstances. It is really not known to this court how the respondent No.10 was selected in absence of certificate of registration as the Pharmacist [Allo]. There is no answer to this in the reply filed by the respondents. Page 6 of 9 However, Mr. Bhattacharjee, learned GA has candidly submitted that on the day of walk in interview the respondent No.10 did not have the status of registered Pharmacist. Thus, according to Mr. Bhowmik, learned counsel, at least the appointment of the respondent No.10 cannot be allowed to survive in law. In a pointed response to this aspect of the matter, Mr. Bhattacharjee, learned G.A. has submitted that on the basis of employment notification, on the basis of which the present process has been launched, it cannot be stated that it was the requirement from the employer that every person who applied for the post of Pharmacist [Allo] should be registered with the State Council or the Central Council. Therefore, the respondent No.10 had no obligation to procure or to show his registration certificate to the selection board.
[4] Having carefully scrutinized the records as produced before this court, this court finds that the respondents No.1 & 2 had made attempt to invoke the doctrine of estoppel by conduct against the petitioner as after his participation in the selection process when he found himself out of the fray, he has challenged the very process itself by which he sought to achieve the selection. In this regard, however, Mr. Bhattacharjee, learned GA referred a decision of the Calcutta High Court in State of West Bengal & Others vs. Chandra Kanta Ganguli [judgment dated 26.04.2017 delivered in MAT 949 of 2016 & Ors.] where the Calcutta High Court has observed that where there is no allegation of any bias or favouritism, the recruitment Page 7 of 9 process cannot be set aside on some technical flaws, here and there. It is an uphill task on the part of the selection committee to interview huge number of candidates on a single day and prepare the merit panel. The method which is to be selected for getting the best candidates out of the basket depends on the nature of job attached to the post. Therefore, Mr. Bhattacharjee, learned G.A. has indicated that the selection on the maximum mark of 20 cannot be questioned by the petitioner inasmuch as there is no specific allegation of bias, mala-fide or manipulation against the selection committee/ board. Even the members of the selection committee are not party in the proceeding. Therefore, against them no allegation can be made, even if there is some allegation as not incorporated in the writ petition. Only the mode has been questioned as there is no such allegation that the said mode is not equivalent for all the candidates. The impossibility of taking interview of huge number of candidates cannot be a ground for challenging the selection process inasmuch as in Sadananda Halo & Ors. vs. Momtaz Ali Sheikh & Ors., reported in (2008) 4 SCC 619, it has been observed that the court cannot interfere with the recruitment process mechanically and in a mathematical manner by setting its own benchmark. The apex court has further observed that instead of testing the matter on the basis of the ground realities the court shall take a decision and make the balance before interfering with the selection process. Mr. Bhowmik, learned counsel has submitted that still there is vacancy and the Page 8 of 9 respondents No.1 & 2 may be directed to appoint the petitioner and if necessary to adjust the vacancy when the vacancy might be available from the reserved category, such as Ex-serviceman etc. It is apparent that there is no challenge against the bona fide of the selection process and as such, this court is not inclined to interfere with the selection process but so far the pointed allegation of not having the registration as the Pharmacist by the respondent No.10 is concerned, this court is of the view that in absence of the registration as the Pharmacist, no Pharmacist [Allo] can be appointed inasmuch he will otherwise stand prohibited from dispensing the medicine to the patient for which he was being observed to find his suitability to be appointed as the Pharmacist [Allo]. Be that as it may, it has not been denied that the respondent No.10 had the essential qualifications of getting the registration as the Pharmacist under the State Pharmacy Council. It is a mere formality to register someone. Without taking a hyper technical view of the matter, this court is of the view that since already the respondent No.10 has been granted the registration as the Pharmacist [Allopathy], his service may not be disturbed. That apart, the respondent No.10 has got 12 out of 20. The petitioner had got 9 out of 20. This court does not have the jurisdiction in the background fact to verify the process of the selection committee and as stated earlier, there is no challenge in respect of fairness or integrity of the selection process. Further, there is no allegation of mala fide against the members of the selection Page 9 of 9 committee. But it appears that the petitioner is a suitable candidate. Therefore, the respondents No.1 & 2 may consider on the appointment of the petitioner against the vacancy, if any available, and if required by adjustment. Result of such consideration be communicated to the petitioner within a period of 3 months from today. The observation as made on the basis of the records of the interview as conducted by the respondents No.1 & 2 is fair consideration and the consequential action.
With this observation and direction, this writ petition stands disposed of.
There shall be no order as to costs.
JUDGE Sujay