Calcutta High Court (Appellete Side)
Dr. Apurba Kumar Das & Anr vs The State Of West Bengal & Others on 26 August, 2013
Author: I.P. Mukerji
Bench: I.P. Mukerji
1
26.08.13
13
sm
W.P. 2455(W) of 2010
Dr. Apurba Kumar Das & Anr.
-vs-
The State of West Bengal & Others
Md. Yamin Ali
Ms. Saira Bany
.......for the petitioners
Mr. Subrata Talukdar
Ms. Aparna Ghosh
....for the State
Mr. Usof Ali Dewan
....for respondent
Nos. 2,3 and 5
A notification under Section 160(3) read with Section 212 of the West Bengal Panchayat Act, 1973 was published on 23rd May, 1988. Under this legislation, each Gram Panchayat had to have one part-time homeopathic doctor and one part-time homeopathic compounder-cum-Dresser. A scheme for this purpose would be implemented by the Zilla Parishads, Panchayat Samitis and Gram Panchayats.
2Two writ petitioners are before this court. The first is a homeopathy doctor, the second is the compounder.
Each of them has been recommended by the Janasasthya Sthayee Samiti of the Panchayat Samity, the Panchayat and the Samserganj Panchayat Samiti for appointment to the above post.
The letter dated 7th July, 2005 of the Executive Officer, Samserganj Panchayat Samity to the Executive Officer, Murshidabad Zilla Parishad stated that the Jana Sastha Sthyee Samity of Samserganj Panchayat Samiti had adopted a resolution for setting up a homeopathy dispensary at Dogachi Napara Gram Panchayat and that as an enclosure to the letter the applications of the writ petitioners together with the necessary resolution of the Gram Panchayat and the above Janasasthya Sthyee Samity approving the names were enclosed.
Mr. Ali showed me a document at page 49 of the petition signifying the approval of the Sastha Samity of the Panchayat Samity to the above resolution. The decision taken, it seems was to have effect from 17th February, 2004.
3
The writ petitioners have been practising at the above site chosen by the Panchayat, since 2004, but their salaries have not been paid in the absence of an approval from the department of Health and Family Welfare of the government of West Bengal.
Learned counsel for the state submitted that the appointment of the writ petitioners was irregular. It did not have the approval of the state government. The state had not sanctioned any post of homeopathic doctor and compounder in that particular Panchayat. The state government had by notification approved the appointment of homeopathic doctors and compounders in select centres only, it was submitted.
I am unable to accept this submission. The writ petitioners, undisputedly, are carrying out their duties since 17th February, 2004 from the place designated for them, as indicated by the letter of the Samserganj Panchayat Samity dated 7th July, 2005. Therefore, the homeopathy doctor and compounder are operating from an official place and not from their private centre or from under a tree by the road side. Their appointments were approved by a resolution of the Panchayat as well as by the Janasasthya Sthayee Samity of the Samserganj Panchayat Samiti and the Samity . It was sent to the Zilla Parishad. The parishad had 4 neither returned the papers nor approved it and sent it to the government of West Bengal. It has sat tight over the matter. Meanwhile, the petitioners have continued to discharge their duties under the aforesaid notification since 17th February, 2004.
Therefore, I take it that this site for setting up the homeopathy centre along with the appointment of the writ petitioners was approved by the Zilla Parishad, expressly or impliedly. At any rate they are estopped from denying it. The writ petitioners are entitled to a formal appointment by the department of Health and Family Welfare, together with their honorarium from 17th February, 2004 till date. I order accordingly. Furthermore, the state will continue to make or ensure payment of their honorarium at the applicable rates in future. The writ petitioners will continue to discharge their duties as doctor and compounder, till officially discharged by the government in accordance with law. Compliance with this order is to be effected within three months of communication of this order.
The writ application is disposed of.
5Urgent certified photocopy of this order, if applied for, will be made available to the parties subject to compliance with all requisite formalities.
(I.P. Mukerji, J)