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the recruitment process for the post of a Homoeopathic Officer for a Gram Panchayat Level Dispensary situated at Jhilu–I Gram Panchayat under Mongalkote Block in the district of Burdwan= the Guidelines for engagement of part-time Homoeopathic doctors in the Gram Panchayat Level Dispensaries are not related to the Guidelines for engagement of ‘AYUSH’ doctors for Gram Panchayat Level Dispensaries which falls under the National Rural Health Mission. As such, the ad-interim prayer of the petitioner is not entertained since this Court is, prima facie, satisfied that the Guidelines for recruitment of ‘AYUSH’ doctors is under a separate Scheme altogether which has no rational nexus with the Guidelines as contained in the notification dated 22nd February, 2010

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43
11.01.2012
pg.
WP No. 22635 (W) of 2011
Dr. Abdul Basar
Vs.
State of West Bengal & Ors.
Mr. Subir Sanyal
Mr. Saikat Banerjee
Md. Hasanuz Zaman
… For the petitioner
Mr. Ram Mohan Pal
… For the State
Supplementary affidavit filed by the petitioner in
Court today be kept on record.
The petitioner participated in the recruitment process
for the post of a Homoeopathic Officer for a Gram
Panchayat Level Dispensary situated at Jhilu–I Gram
Panchayat under Mongalkote Block in the district of
Burdwan and was asked to appear for an interview for his
engagement as an ‘AYUSH’ doctor on 16th December,
2011, at the office of the concerned Block Development
Officer. Subsequently, the petitioner came to learn that he
was selected on merit as an ‘AYUSH’ doctor for Jhilu–I
Gram Panchayat. Later, however, the petitioner came to
learn further that despite being selected on merit, his
name would not be forwarded by the concerned Block
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Development Officer to the higher authorities for
ratification and for according approval since he had
crossed the upper age limit as prescribed in a Guideline
dated 22nd February, 2010, issued by the Chief Executive
Officer, West Bengal State Rural Development Agency.
Relying on a judgment of the Supreme Court in Dr.
Rajinder Singh Vs. State of Punjab & Ors. reported in
(2001) 5 SCC 482, the learned advocate for the petitioner
submits that it is the settled proposition of law that no
Government Order or Notification or Circular or
Guidelines can be a substitute of a Statutory Rule framed
under authority of law. He further submits that in the
facts of the instant case there is already a statutory
‘Scheme’ prevailing since 1988, which had been brought
into effect by a notification dated 23rd May, 1988, issued
by the Department of Health and Family Welfare,
Government of West Bengal, in exercise of power
conferred by sub-section (3) of section 160, read with
section 212, of the West Bengal Panchayat Act, 1973. He
also submits that in this statutory ‘Scheme’ which is still
in force, it has been categorically stated that there shall
not be any upper age limit in case of recruitment of parttime
Homoeopathic doctors for the Gram Panchayats in
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West Bengal, provided, it is ensured that the selected
candidates are physically fit and mentally alert for
performing their duties.
It appears, prima facie, that the Guidelines for
engagement of part-time Homoeopathic doctors in the
Gram Panchayat Level Dispensaries are not related to the
Guidelines for engagement of ‘AYUSH’ doctors for Gram
Panchayat Level Dispensaries which falls under the
National Rural Health Mission. As such, the ad-interim
prayer of the petitioner is not entertained since this Court
is, prima facie, satisfied that the Guidelines for
recruitment of ‘AYUSH’ doctors is under a separate
Scheme altogether which has no rational nexus with the
Guidelines as contained in the notification dated 22nd
February, 2010. However, the matter may be finally
decided on affidavits.
Accordingly, let affidavit-in-opposition be filed within
three weeks from date. Reply, if any, a fortnight
thereafter.
Let this matter appear for further consideration under
the heading “For Final Disposal” in the monthly combined
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list to be published for the month of March, 2012.
Urgent photostat certified copy of this order, if applied
for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.)

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