Kolkata Radiologist decides to Resign from Service to Contest in Elections, High Court gives nod

Kolkata: Holding deemed public interest,  the Calcutta High Court has directed the state to accept the resignation of a radiologist who sought to contest in the upcoming Lok Sabha 2024 elections.

While the state objected to the government doctor's resignation based on the Clause 14 of Appendix 5 of Part I of the West Bengal Service Rules, which deals with the resignation and retirement after study leave, the bench observed that the doctor did not suppress any material facts in the case in terms of his bond obligation.

While considering the plea by the doctor, who was denied permission by the State to resign from his post, the HC bench comprising Justice Rajasekhar Mantha noted that when any person seeks to contest an election to the post of a public representative, he is deemed as a person seeking to represent the public at large.

"There is, therefore, deemed public interest in a person seeking to contest in an election and to be a representative of the people," the Court observed.

The plea was filed by Dr. Pranat Tudu who was working as a doctor at Jhargram Government Medical College and Hospital. Intending to contest in the forthcoming Parliamentary Elections this year, the doctor tendered his resignation on 19th March, 2024 from Government Service on this ground. Submitting a proforma as per the State rules, the doctor questioned "Nil" meaning 'No' to the question "Whether the applicant is serving any Government Bond Obligation period".

Anxious to receive response from the Government and worried that he would not get enough time to campaign for his election if the Government delays the acceptance of resignation, the doctor approached the Court praying for directions upon the State to accept his resignation immediately.

Responding to his plea, the counsel for the State's counsel raised three-fold objections. It was submitted that the petitioner did not even give breathing time to the State to respond to the petitioner doctor's application. Referring to this, the State's counsel termed the plea as "premature". Apart from this, the counsel for the State Government also submitted that the doctor suppressed material facts. Allegedly, the doctor had availed Study Leave between the year 2020-2021 and 2021-2022 for two years to undergo "DNB (PDCET-2020), Radiodiagnosis, Session 2020 at Apollo Gleneagles Hospital, Kolkata.

Accordingly, the doctor was allowed Study Leave subject to observance of West Bengal Service Rules, Part I, Appendix No.5, Clause 2(a). It was also argued that his leave salary during the Study Leave period would also be governed by the West Bengal Service Rules Part I, Appendix No.5, Clause 7(2).

Admittedly, the petitioner was granted one-year of initial Study Leave by an order dated 29th June, 2020 and this leave was further extended for a period of 12 months on 29th July, 2021. Referring to these facts, the State's counsel submitted that it would take time to determine as to whether the petitioner doctor has, in fact, executed any bond or not. Even assuming that the petitioner has not executed any bond, he would in terms of Clause 14 of Appendix 5 of Part I of the West Bengal Service Rules, be bound to make refund to the amounts, argued the counsel for the West Bengal Government.

Referring to the concerned Clause 14, the State counsel argued that the concept of public interest is vital to the invocation of any benefit under the clause and therefore, the petitioner doctor cannot claim permanent discharge by resignation from the service of the State. Considering these facts, no writ of mandamus can be issued in favour of the petitioner, argued the counsel for the State.

While considering the plea, the Court took note of the proforma submitted by the doctor, who submitted that he is not serving from any Government Bond obligation.

"This Court is of the view that the petitioner has not suppressed any material facts. In the event the petitioner had, in fact, executed any Bond the terms and conditions of such Bond would prevail over and above Appendix 5 and the restrictions contained thereunder. Such restrictions cannot be more stringent than Clause 14 of Appendix 5. It is only in respect of any gray area or matters not dealt with under any Bond that would have have to be addressed by reference to the Clauses under Appendix 5," the HC bench noted at this outset.

"The question that remains, therefore, is the liability of the petitioner, in the absence of any Bond under Clause 14 of Appendix 5," it added.

Perusing the concerned Clause 14, the HC bench observed, "This Court is of the clear view that the petitioner is bound by Clause 14 of Appendix 5 and the same is a precondition for his resignation to be accepted."

Responding to the situation, the counsel for the petitioner submitted on instructions that his client is willing to refund all and every sum specified in Clause 14.

"On the last objection raised by Mr. Amal Kumar Sen on the absence of pleadings for the benefit under Clause 14 of Appendix 5 to the West Bengal Service Rules, it is now well-settled that relief under Article 226 of the Constitution of India can always be moulded by the High Court. The absence of prayers and pleadings may only be fatal where a Rule or law is invoked wholly unconnected with or alien to the facts and circumstances pleaded in the writ petition," noted the Court.

The Court opined that the benefit of Clause 14 of Appendix 5 of the West Bengal Service Rules being sought by the petitioner is something that arises out of the facts of the case as also and the arguments advanced by both parties in respect of Appendix 5 of the West Bengal Service Rules.

"On the issue of public interest being the primary consideration under Clause 14, apart from the same being directory, this Court is of the view that when any person seeks to contest an election to the post of a public representative, he is deemed as a person seeking to represent the public at large. There is, therefore, deemed public interest in a person seeking to contest in an election and to be a representative of the people," noted the bench.

With this observation, the bench directed the State to accept the resignation of the petitioner within 48 hours of all and any refund being made by the petitioner under Clause 14 of Appendix 5 of the West Bengal Service Rules.

"Upon making such refund, the petitioner shall be entitled to treat himself as having discontinued the service of the State. Any differences and deficit in calculation of the sums of money required to be deposited in terms of Clause 14 may be adjudicated against the petitioner and retained from any benefits of his service by the State," the Court clarified.

"In addition to the above, post refund in the peculiar facts and circumstances, the petitioner shall be entitled to approach the Governor for any reduction and/or waiver of any sums of money already paid under Clause 14 above. If any prayer under Clause 14 is entertained and allowed by the Governor, the respondent No.2 shall be obliged to refund such amounts to the petitioner," it further added.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/dr-pranat-tudu-jhargram-vs-wb-govt-235096.pdf

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