Order This is an application under Article 226 of the Constitution of India, inter alia, praying for an order that:- (a) A writ of and/or in the nature of Mandamus commanding the respondents each of them their servants, agents or subordinates to cancel, reckon, rescind and/or with the result of the viva voce test taken on the 8th day of August, 1990 for selecting the petitioner for appointment to the post of Sergeants in Calcutta Police; (b) A writ of Mandamus commanding the respondent to fix viva voce marks at the rate of 15% of the total marks and prepare a merit list by taking together the marks obtained in Written Examination and viva voce test for appointment to the post of Sergeants in the Calcutta Police according to merit; (c) A writ of and/or in the nature of Mandamus commanding the respondents to act in accordance with law in giving appointment to the petitioner to the posts of Sergeant in Calcutta Police as has been done in favour of Tapas Kumar Biswas who was also declared unfit in his chest measurement and give seniority and service benefits along with his batch mates of 1989 as he has secured 50% of the total marks inasmuch as the Qualifying marks for appointment is 40'% of the total; 2. This is a very unfortunate case where the petitioner was harassed and had to come to Court on several occasions. 3. Mr. Bikash Bhattacharjee, learned Advocate for the petitioner, has filed a list of dates comprising of 9 pages, which goes to show the harassments caused to the petitioner from time to time by the respondents. The first writ application filed by the petitioner was disposed of by Monoranjan Mullick J. on 13.7.90 wherein it was held that the petitioner be treated to have qualified in the physical measurement in the recruitment to the post of Sergeant of the Calcutta Police for the year 1988. The Commissioner of Police was directed to constitute a Selection Board before whom the petitioner shall appear for interview and if the petitioner qualifies then he will be appointed for the post of Sergeant for the year 1988. Thereafter, the petitioner appeared before the Selection Committee but no result was communicated and no steps were taken by the respondent and the petitioner was kept in darkness. Thereafter, the petitioner appeared before the Selection Committee but no result was communicated and no steps were taken by the respondent and the petitioner was kept in darkness. As a result whereof the petitioner had to file a second writ application which was heard and disposed of by A.N. Ray J. ex parte and the respondent did not care to contest the matter. No affidavit-in-opposition has been filed and no steps were taken on behalf of the respondents in the said writ application. In the said judgment dated 10.9.91 a detailed discussion was made so far as the case of the petitioner was concerned and the following order was passed:- "In view of what I have stated above, if the writ petitioner had actually secured even pass marks at the interview on 8.8.90 he would be bound to be appointed in obedience to the said order dated 13.7.90. Qualification at the viva voce test was all that could be asked for from the writ petitioner after the said order had been passed. For the reasons above, I do not think that it is necessary for me to enter into the question as to whether the assessment of 100 marks for viva voce examination was appropriate and reasonable in view of the written test itself being for only 200 marks. The learned Counsel appearing on behalf of the writ petitioner has relied upon an unreported judgment of Mr. Justice Ajit Kumar Sengupta delivered on 21st March, 1990 in Matter No. 1159 of 1986, wherein His Lordship following a Supreme Court decision, has been pleased to indicate that 100 marks in viva-voce examination is apparently not very consistent with the principle laid down in that case, considering the fact that the written test was only for 200 marks. I need not examine the matter from the above angle because the writ petitioner cannot be refused appointment today by reason of any ranking made with other candidates on the basis of the viva voce examination. The writ petitioner's qualification is only pass marks qualification. As such, the authorities would not be permitted to enter into the question of ranking on the basis of the viva voce examination so far as the writ petitioner is concerned whether the viva voce is for 100 marks or any other marks more or less than that. 4. The writ petitioner's qualification is only pass marks qualification. As such, the authorities would not be permitted to enter into the question of ranking on the basis of the viva voce examination so far as the writ petitioner is concerned whether the viva voce is for 100 marks or any other marks more or less than that. 4. On the earlier occasion, prior to the order of Justice Mullick, the writ petitioner had already appeared for the written test and having passed the same had been sent for the test of physical fitness. What happened thereafter, I have already stated above. As such, it appears that the respondents are bound to grant appointment forthwith to the writ petitioner as Sergeant unless reasons can be made out showing manifest disqualification of the writ petitioner from such appointment. Accordingly, I allow this writ application and direct by way of Rule absolute that the respondents or those concerned amongst them, shall, within a period of four weeks from the date of service of a copy of this order upon them, appoint .the writ petitioner as a Sergeant in the Calcutta Police Force, unless for reasons to be recorded in writing, and served upon the writ petitioner in that regard within the aforesaid period, the respondents may make out a case for absolute disqualification of the writ petitioner from being so appointed as a Sergeant at all. In case any such absolute disqualification is sought to be spelt out by the respondents or any of them, the writ petitioner will be at liberty to take steps against the same as he may be advised and as he may be entitled to in accordance with law. In default of any such communication as aforesaid, the appointment of the writ petitioner as a sergeant shall become absolute after the lapse of the period of four weeks as aforesaid. The other points in the writ petition are not being decided upon by me and shall remain open in case any occasion for their consideration arises in future." 5. It is submitted by Mr. Bhattacharjee that the respondents with a view to flout the order of this Court stated the writ petitioner has failed to secure the qualifying marks in the viva voce test and the Selection Board fixed the qualifying marks as 50% whereas the writ petitioner has secured only 331/3%. It is submitted by Mr. Bhattacharjee that the respondents with a view to flout the order of this Court stated the writ petitioner has failed to secure the qualifying marks in the viva voce test and the Selection Board fixed the qualifying marks as 50% whereas the writ petitioner has secured only 331/3%. It appears that the Selection Board fixed 200 marks for written test and 100 marks for viva voce. The said tests were completed long before the order was passed by Justice A.N. Rayon 10.9.91. While the judgment was passed the said result for written test and the viva voce test were not produced before the Court and the respondent kept mum and/or simply watching the proceedings so as to come up with a plea that the petitioner could not qualify himself. 6. Mr. Bhattacharjee relies upon a decision reported in 1985 (4) SCC 417 (Ashok Kumar Yadav & Ors. vs. State of Haryana & Ors.) and AIR 1991 SC 1011 (Vikram Singh & Anr. vs. The Subordinate Services Selection Board, Haryana & Ors.) wherein the question, which was decided by the Hon'ble Supreme Court as to what should be the marks allotted for viva voce test. In the instant case, the respondents allotted 200 marks for written test and 100 marks for viva voce test, i.e. 50% for viva voce test. The Supreme Court has laid down the principle that the viva voce test marks allocated for the viva voce test shall not exceed 12.2% of the total marks taken into account for the purpose of selection but in the instant case the respondents for reasons best known to them allocated 50% for viva voce test in total disregard of the principle laid down by the Supreme Court and furthermore kept the said fact concealed from the Court when the judgment was passed on by Justice A.N. Rayon 10.9.91 and thereafter issued the letter dated 5.10.91 with a mala fide motive. It further appears that in the Selection Board three officers were there, viz. P.K. Bhattacharjee, Assistant Secretary, Government of West Bengal, Home Police, S.I. S. Ahmed, Deputy Commissioner of Police Headquarters and Sri K. Roy, Joint Commissioner of Police (General), Calcutta. It further appears that in the Selection Board three officers were there, viz. P.K. Bhattacharjee, Assistant Secretary, Government of West Bengal, Home Police, S.I. S. Ahmed, Deputy Commissioner of Police Headquarters and Sri K. Roy, Joint Commissioner of Police (General), Calcutta. In Ajoy Hasia vs. Khalid Mujib reported in AIR 1981 SC 487 the Supreme Court also held that allocation of as high a percentage as 331/3 of the total marks for oral interview should be regarded as infecting the admission procedure with the vice of arbitrariness and selection of candidates, made on the basis of such selection of candidates, such admission procedure cannot be sustained. It was further held that allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid. In this connection Supreme Court observed at para 19 page 501, that-"Now there can be no doubt that, having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allotted for written test cannot be accepted by the Court as free from the vice of arbitrariness." 7. The Learned Advocate for the respondents could not satisfy this Court as to the reason or reasons for keeping 50% marks as qualifying marks for viva voce examination. It was only submitted that this thing was prevailing with the Calcutta Police and the said system is continuing. But the fact remains that the said allocation of marks for viva voce examination was in total disregard to the principle laid down by the Supreme Court. In case of viva voce examination there is a scope for manipulation and to check that, principles have been laid down by the Hon'ble Supreme Court. But, it appears that the respondents are following the old technique so as to keep the appointment within their control, whims and wishes and by that method the petitioner was made a victim and the three responsible officers of the Calcutta Police who were in the Selection Board were instrumental to such an action. It is submitted by Mr. But, it appears that the respondents are following the old technique so as to keep the appointment within their control, whims and wishes and by that method the petitioner was made a victim and the three responsible officers of the Calcutta Police who were in the Selection Board were instrumental to such an action. It is submitted by Mr. Bhattacharjee that as per the principles laid down by the Hon'ble Supreme Court the viva voce marks cannot be more than 15%, therefore, if 200 marks is for written examination then at best there can be 30 marks for viva voce. So, admittedly the petitioner has secured 117 marks out of 200 marks in the written test and he has secured 331/3% in the viva voce examination for 100 marks which was allotted in the so called examination. If the viva voce test allotted 30% then the petitioner would have secured 10 marks. Therefore, the petitioner as per the calculation of the respondent coupled with the principals laid down by the Supreme Court would have secured 117 + 10 = 127 out of 230, i.e. 200 marks in the written test and 30 marks for viva voce, which is more than 50%. Therefore, on their own showing of the respondent the petitioner has qualified himself to be appointed as a Sergeant but instead of appointing him as a Sergeant to flout the order passed by Justice A.N. Roy, the letter dated 5.10.91 was addressed by the Deputy Commissioner of Police, Headquarters, Calcutta. In the order passed on 10.9.91 it was made clear by Justice A.N. Ray that the respondents are bound to grant appointment forthwith to the petitioner as Sergeant unless reasons can be made out showing manifest disqualification of the writ petitioner and 4 weeks time was granted to the respondent for appointing the writ petitioner as a Sergeant in the Calcutta Police Force, Unless for reasons to he recorded in writing and served upon the writ petitioner in that regard within the period of 4 weeks whereby the respondent will have to make out a case of absolute disqualification of the writ petitioner. 8. 8. From the facts it is clear that the letter dated 5.10.91 addressed by the Deputy Commissioner of Police, was to bypass the judgment passed by Justice A.N. Ray and the said letter was written with a mala fide motive and is devoid of any principle and contrary to the principles liad down by the Hon'ble Supreme Court, in respect of the marks which are to be allocated for viva voce examination. 9. In the circumstances aforesaid, the respondents are directed to comply with the directions made by Justice A.N. Ray in his judgment dated 10.9.91. I further direct the respondents to give appointment to the petitioner to be absorbed in the post of Sergeant in the Calcutta Police forthwith and also to take necessary steps for modifying the marks which is to be allocated for viva voce examination in terms of the decision of the Hon'ble Supreme Court. 10. The petition is, accordingly, allowed with cost assessed at Rs.510/- as this is a case where the writ petitioner, a bona fide citizen of India, was harassed by the Calcutta Police for reasons best known to them and he was dragged to the litigation on three occasions. 11. It is submitted by Mr. Bhattacharjee that because the petitioner is poor he could not afford to take out a petition for contempt. However, liberty is given to the petitioner to file an application for contempt, if so advised, for violation of the order of Justice A.N. Ray dated 10.9.91. 12. Learned Advocate for the respondents prayed for stay of operation of this order for a period of fortnight, which prayer is considered and rejected. All parties to act on a signed copy of the operative part of this judgment upon usual undertaking. Application allowed with costs; direction given for modifying the marks for viva voce examination in terms of the decision of the Supreme Court; petitioner to be appointed forthwith.