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2001 DIGILAW 376 (CAL)

Prabir Kumar Nandi v. State of West Bengal

2001-06-29

HRISHIKESH BANERJI, TARUN CHATTERJEE

body2001
JUDGMENT Banerji, J. 1. This appeal is directed against the Judgment and Order dated April 26, 1995 passed by a learned Judge of this Court in the Writ Application being C.O. No. 4861 of 1995 filed by the Appellant herein praying, inter alia, for directing the Respondents to select the Petitioner to the Post of Constable on the basis of interview held on 28th September, 1994 at Police Line, Chinsurah, in the District of Hooghly and to direct the Authorities concerned to issue Appointment Letter. 2. On our queries about the maintainability of the above C.O. No. 4861 of 1995 filed in this Court under Article 226 of the Constitution of India without seeking relief in the West Bengal Administrative Tribunal (hereinafter called 'the Tribunal' for short), Mr. Sahu, the learned Counsel, appearing for the Appellant submits that the above C.O. was filed when there was stay on the functioning of the Tribunal during the period from January 17, 1995 to January 10, 1996 as would be evident from the decision in the case of (1) The State of West Bengal v. R. Bhattacharya reported in 1996 (1) CHN 379 , whereby the Judgment passed by a learned Single Judge of this Court in the case of (2) Rudrajyoti Bhattacharya & Ors. v. Union of India & Ors. reported in 1995 (1) CHN 135 , was reversed. 3. The present appeal was preferred on May 15, 1995, i.e., during the period when the stay on the functioning of the Tribunal was in force. 4. The submission of the learned Counsel appearing for the Respondents that the petition stood transferred, w.e.f., the date of the filing of the petition is without any substance as the Writ Application was filed within the period during which the stay as abovementioned was in force and the present appeal was also filed when such stay was in force. 5. In view of the proviso to Section 29 of the Administrative Tribunal Act, 1985, the provision of deemed transfer to the Administrative Tribunal as contained in the sub-section (1) does not apply to the present appeal and this Court has jurisdiction to entertain the present appeal. 6. 5. In view of the proviso to Section 29 of the Administrative Tribunal Act, 1985, the provision of deemed transfer to the Administrative Tribunal as contained in the sub-section (1) does not apply to the present appeal and this Court has jurisdiction to entertain the present appeal. 6. On June 27, 1994, the Appellant herein got a Call Letter from the Employment Exchange Office for an interview to the post of Constable on July 28, 1994 at the Chinsurah Police Line under the supervision of the Respondent No.3, the Superintendent of Police, Hooghly. After some postponements the interview was held on September 28, 1994. The petitioner appeared before the Interview Board and participated in the test and according to the Appellant his performance before the Interview Board was satisfactory and he was called for oral interview on October 20, 1994. But, in the selection list dated October 21, 1994 published on November 20, 1994, the name of the petitioner did not appear. It is the case of the petitioner that although he performed well in all the items, he has not been empanelled on some extraneous considerations and that the oral interview was held illegally as the provision for oral interview was not in force in the year 1994. 7. The learned Single Judge, however, held that the viva voce test could not be said to be illegal and directed the Respondents to communicate the result and effect as to whether the Petitioner was successful in the oral interview. 8. Mr. Sahu, appearing for the Petitioner, submits that the Petitioner has been denied the appointment arbitrarily as the oral interview was held in violation of the extant Recruitment Rules. 9. We find that the selection of the candidates was made in the year 1994 when the provision for oral interview was not in force. Although the rule was published in the Police Gazette in the year 1992, the amended rule for oral interview was published in the Official Gazette in the year 1996, i.e., after the selection process in which the Appellant herein appeared for his appointment was over. 10. Mr. Although the rule was published in the Police Gazette in the year 1992, the amended rule for oral interview was published in the Official Gazette in the year 1996, i.e., after the selection process in which the Appellant herein appeared for his appointment was over. 10. Mr. Sahu, in support of his contentions that no oral interview can be held after the Petitioner passed the Physical Fitness Test on September 28, 1994 and that recruitment is to be made on the basis of such fitness only, cites the decision in the case of (3) Ananta Pal & Ors. v. The State of West Bengal & Ors. reported in 1988 (2) CLJ 217 , where it has been held that unless warranted by the Police Regulations of Bengal, recruitment to the post of Constables is to be made on the basis of Physical Fitness Test and elemination or selection by oral interview cannot be resorted to. He also cites the case of (4) State v. Sudhangshu Ghatak reported in 1975 (1) CLJ 144 , where it has been held that the Police Regulations of Bengal has the force of law. 11. This point is no longer res integra. In the case of (5) The State of West Bengal & Ors. v. Bobby Singh & Ors. (W.P.S.T. No. 42 of 2000) as also in the case of (6) The State of West Bengal & Ors. v. Sk. Taj Alam (W.P.S.T. No 472 of 2000) this Division Bench held that under Regulation 746 of the Police Regulations of Bengal, 1943, no selection could be made following the amended provisions of the said Regulation 746 before such amendment was published in the Official Gazette in the year 1996 and that publication of the said amended rule in the Police Gazette in the year 1992 could not be said to have the force of the statutory rule before the publication in the Official Gazette. 12. Accordingly, we are of the view that the oral interview held on October 20, 1994 was illegal and invalid as the amended rule for oral interview did not come into force prior to its publication of the amended Rule 746 in the Official Gazette in the year 1996. In view of the above, the order passed by the learned Single Judge is set aside and this appeal is allowed. In view of the above, the order passed by the learned Single Judge is set aside and this appeal is allowed. The Respondents and/or the Appropriate Authorities are directed to select the Appellant to the post of Constable on the basis of interview held on September 28, 1994 and to issue Appointment Letter condoning age bar, if any, subject to availability of vacancy. No order as to costs. Chatterjee, J.: I agree.