Sabita Biswas v. Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR *** WP.CT/11/2023 Sabita Biswas Vs.

Union of India and others Mr. Gopala Binnu Kumar ... for the petitioner Mr.Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the Administration July 18, 2023 [AKB] Item No.5 The present writ petition has been preferred challenging an order dated 9th February, 2023 passed by the learned Tribunal in the original application, being OA 351/00600/2022. Mr.

Kumar, learned advocate appearing for the petitioner/applicant submits that upon emerging to be successful in a selection process initiated by the Andaman and Nicobar Administration (in short, the Administration), she was appointed to the post of Homoeo Physician on 7th November, 1994. Such contractual appointment of the petitioner was extended from time to time till 31st December, 2021. However, she continued to be in service till March 2022.

In the midst thereof, a memo dated 8th March, 2022 was issued by the Assistant Secretary (Health) intimating, inter alia, that the proposal for extension of contract of the petitioner had not been approved and her service has been terminated in view of placing of charge sheets in the prosecution case filed in the month of March 2021 in the matter of procurement of Ayurvedic Medicines for Ayush Hospital, Port Blair at high rates. According to Mr. Kumar the impugned order dated 8th March, 2022 was issued in blatant violation of the principles of natural justice. A person who was discharging her services for more than two decades was not even given a show cause prior to issuance of the termination order. Such issue though urged before the learned Tribunal was not considered. He informs that the in respect of one Dr.

Rajesh, Ayurveda Physician, who is similarly situated with the petitioner, the authorities issued a show cause notice to which the said person replied and thereafter a final decision was taken. The authorities cannot apply different yardsticks in respect of persons similarly situated.

Mr. Kumar argues that the FIR was registered in the year 2012 pertaining to an alleged incident of the year 2005-2006. The charge sheet was submitted about ten years thereafter in the month of March, 2021. From the said sequence and lack of

incriminating materials, it would be evident that the petitioner has been falsely implicated and stigmatized and her fundamental right towards life and livelihood has been severely affected. The learned Tribunal glossed over the said issues and did not return any finding on the same. In support of his arguments, Mr. Kumar has placed reliance upon a judgment delivered in the case of K. Ragupathi vs. The State of Uttar Pradesh and others, reported in 2022 (6) SCC 346.

Per contra, Mr. Chakraborty, learned advocate appearing for the Administration submits that the petitioner was in contractual appointment which was extended from time to time. The contractual appointment of the petitioner came to an end on 31st December 2021. The memo intimating termination of her service was issued subsequent to such expiry of contractual engagement on 8th March, 2022.

Mr. Chakraborty further argues that in contractual appointment, the appointment comes to end at the end of the contract. If it was an engagement on daily basis or causal basis the same would came to an end when it is discontinued. In the present case the petitioner's tenure of appointment expired on 31st December, 2021 and as such question of issuance of show cause notice prior to the issuance of memo dated 8th March, 2022, does not occasion.

He contends that petitioner's name features in the charge sheet and the allegations leveled against the petitioner are serious and in view of the pendency of the said proceeding, the petitioner cannot claim to be reappointed in the post. The authorities have not acted in an arbitrary or unreasonable manner and as such no interference is called for in the present writ petition.

Heard learned advocates appearing for the respective parties and considered the materials on records. Indisputably the petitioner's contractual appointment came to an end on 31st December, 2021. The order of termination was issued on 8th March, 2022. The petitioner is involved in a criminal proceeding which is yet to be brought to its logical conclusion. The issue as to whether the petitioner would be reappointed and continued in service falls within the executive domain. The Court in exercise of its jurisdiction cannot step into the shoes of the executive/administrative authority to determine the issue.

In the said conspectus, the learned Tribunal has directed that the petitioner may make a further representation before the authorities for reengagement as Medical Officer (Homoeopathy) on contract basis and the respondents may consider the same. It is well known that a decision is an authority for what it decides and not what can logically be deduced therefrom. Even a slight distinction in fact or an additional fact may make a lot of difference in decision making process. The judgment in the case

of K. Ragupathi (supra), upon which reliance has been placed by the petitioner is distinguishable on facts.

The learned Tribunal, upon dealing with all the factual issues arrived at specific findings and we do not find any error in the same. The impugned order also does not suffer from any jurisdictional error or any manifest injustice warranting interference of this Court.

Accordingly the writ petition being WP.CT/11/2023 is dismissed.

There shall, however, be no order as to costs. Urgent photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities.

(Tapabrata Chakraborty, J.) (Raja Basu Chowdhury, J.)