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2001 DIGILAW 40 (CAL)

State of West Bengal v. Bobby Singh

2001-01-25

HRISHIKESH BANERJI, TARUN CHATTERJEE

body2001
JUDGMENT Banerji, J. 1. By the present application, the petitioners challenge the order dated June 28, 1999 passed by the West Bengal Administrative Tribunal allowing the application of respondent Nos. 1, 2 & 3, and directing tile petitioners herein to appoint the respondent Nos. 1, 2 & 3 to the posts of Constable in the district of Midnapore, against the existing vacancies, if any, and in case there is no such existing vacancy, against vacancies to occur in future. 2. An advertisement was published in the Employment Gazette in the month of May 1996 that recruitment to the posts of Constables would be made in different districts and Employment Exchanges would be asked to sponsor the names of the candidates having requisite qualifications as given in Annexure 'C' to the application before the Tribunal. 3. Receiving Call Letters (Annexure 'D’ to the petition before the Tribunal) from Employment Officer of the Employment Exchanges concerned, the respondent Nos. 1 to 3 met them for physical measurement on 25.6.1996. S.P., Midnapore asked the respondents to appear before the interview on the dates mentioned therein at Midnapore Police Lines with all testimonials for recruitment to the posts of Constables. The respondents qualified in the physical measurement which is essential for getting appointment to the posts of Constables. Thereafter, they appeared before the Interview Board as they had qualified in the physical efficiency test. 4. After the interview they were not getting their appointments and as they were due to cross the age limit shortly they made several prayers before the petitioner No.3 herein, the Superintendent of Police, Midnapore, stating all the facts and circumstances and requested him to take steps to consider their prayer favourably. As the petitioner No 3 herein did not pay any heed to the prayers each of the respondent Nos. 1 to 3 submitted individual representation to the petitioner No.3 herein endorsing copies to the other petitioners stating the facts and circumstances of the case and requested them to take step to consider their prayers favourably. Getting no reply, respondent Nos. 1 to 3 filed the application before the Tribunal for giving them appointment to the posts of Constable as stated above. 5. Getting no reply, respondent Nos. 1 to 3 filed the application before the Tribunal for giving them appointment to the posts of Constable as stated above. 5. The bone of contention in the present proceeding is whether the procedure for recruitment of the Constables as laid down in Home (Police) Department's Notification No. 225-P.L. dated 7.1.1992 which introduced the provision of oral interview in the process of recruitment of Constables amending Regulation 746 of the Police Regulations of Bengal, 1943, would be applicable to the recruitment process in which the petitioners herein participated. 6. It appears that the Employment Exchanges sent names of 1559 candidates including those belonging to SC, ST, OBC, Ex-Service men, NVF and other exempted categories. Four hundred and five (405) candidates were selected after physical measurement and physical efficiency test and an interview of those candidates was held in terms of Home (Police) Department's Notification No. 225 as stated above. The Interview Board was constituted with the S.P., Midnapore as Chairman and four other members including Additional S.P. (Head Quarters), Additional S.P. (Kharagpur), Additional S.P. (Operation) and D.S.P. (D.T.). Hundred marks were earmarked for interview and the respondent Nos. 1, 2 & 3 herein obtained 33 marks, 39 marks and 48 marks respectively and none of them could find place in the list of selected candidates. Before the Tribunal, the respondent Nos. 1 to 3 herein filed supplementary affidavit stating the names of 21 persons alleged to be the relatives of Police personnel who had been given appointment as Constables of Police and the prayer for their addition was allowed by the Tribunal by its order dated 17.11.1998. The above respondents before the Tribunal did not appear to oppose the application. The last selected candidate according to the merit list was one Sanjit Mahapatra, who obtained 55 marks in the interview out of hundred marks. 7. Interviews were held on different dates in the months of July and August 1996. Regulation 746 of the Police Regulations of Bengal, 1943 which was in force when the oral interview was held, laid down that candidates who would be able to read and write vernacular and would satisfy the standard of the minimum height, chest measurement and weight, would be eligible for recruitment to the posts of Constable. 8. Regulation 746 of the Police Regulations of Bengal, 1943 which was in force when the oral interview was held, laid down that candidates who would be able to read and write vernacular and would satisfy the standard of the minimum height, chest measurement and weight, would be eligible for recruitment to the posts of Constable. 8. Physical efficiency test and interview were introduced by Home (Police) Department's Notification No. 225-P.L. dated 7.1.1992 but the Notification was published in the Official Gazette, viz., the Calcutta Gazette only on 19th December, 1996. 9. The Tribunal held that the physical efficiency test and interview conducted before the date of publication of the Notification in Official Gazette, i.e., the Calcutta Gazette was illegal, and allowed the application as stated above. 10. The petitioners challenge the impugned order on the grounds, inter alia, that the interview as also the selection and appointment were made lawfully; that the appointment was given strictly in accordance with the merit list that the respondent Nos. 1 to 3 who appeared in the interview are now estopped from challenging the legality of the interview; and that after appearing in the interview and having failed to succeed therein the said respondents cannot now veer round and challenge the legality of the interview. 11. The Home Department's Notification introducing physical efficiency test and oral interview which was published in the Police Gazette on 7.1.1992 became effective after it was published in the Official Gazette on 19.12.1996. Interviews were held on different dates in the months of July and August 1996, i.e., before the Regulation 746, a statutory rule framed under Article 309 of the Constitution of India was amended. 12. Citing the Apex Court decision in the case of (1) Vimal Kumari v. State of Haryana & Ors. reported in 1998 (4) SCC 114 , it is submitted by the learned Counsel for the petitioners that it is open to the Government to regulate the service conditions of the employees for whom the rules are made, even when the said rules are in the "draft stage" provided there is clear intention on the part of the Government to enforce those rules in the near future and that recourse to such draft rules is permissible only for the interregnum to meet any emergent situation. It is further observed in the said decision that where the intention is not to enforce or notify the rules at all, recourse to draft rules cannot be taken; that such draft rules cannot be treated to be rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subject covered by the draft rules. Nor can such draft rules, it is observed by the Apex Court, exclude the jurisdiction of the Government, or for that matter any other authority, including the Appointing Authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them. 13. The decision in 1998(4) SCC 114 (supra), is clearly distinguishable as the Draft Rules were sought to be introduced under Article 309 of the Constitution in place of executive instructions. In the case at hand Regulation 746 sought to be replaced, itself was the extant statutory rule framed under Article 309 of the Constitution of India, prior to 19.12.1996, the date on which the amended rule was brought into force in place of the old statutory rule. Prior to December 19, 1996, the statutory rule held the field and the Draft Rule could not be read to be part of the statutory rule on the basis of which the selection was required to be made. 14. In the case of (2) Ajitendra Hira & Ors. v. State & Ors. reported in 1999 WBLR (Calcutta) 12, it has been held by a Division Bench of this Court that in the absence of Notification in the Official Gazette incorporating viva voce test in the process of selection of Police Constables under Regulation 746 of the Police Regulations of Bengal, 1943 no such viva voce test could be lawfully held. 15. The learned Counsel for the petitioners has drawn our attention to the case of (3) Steel Authority of India Ltd. v. Nayan Kumar Roy & Ors. reported in 1998(2) CLJ 125 , where no illegality, irrationality or procedural impropriety was involved as it is in the case at hand. The petitioner, therein, had appeared in the written test without any demur but when he was not called for an interview he turned round and questioned the mode of selection itself. reported in 1998(2) CLJ 125 , where no illegality, irrationality or procedural impropriety was involved as it is in the case at hand. The petitioner, therein, had appeared in the written test without any demur but when he was not called for an interview he turned round and questioned the mode of selection itself. In such circumstances, it was held by the Division Bench that the petitioner would not be allowed to challenge the process of selection as he himself appeared in the written examination without any protest. Therefore, the cited decision is not applicable to the facts of the present case. 16. In the case of (4) Sanjib Kumar Das & Ors. v. State of West Bengal & Ors (W.P.S.T. No. 40 of 1997) cited by the learned Counsel for the respondent, a Division Bench of this Court by its order dated 6.6.2000 held that a proposal for amending the Regulation 746 of the Police Regulations of Bengal, 1943 could not have the effect of amending the Regulation and before the amendment gets statutory force any interview held, contrary to the provisions in force before such amendment would not be applicable. 17. The learned Counsel for the petitioners also refers to the Apex Court decision in the case of (5) Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar & Anr. reported in AIR 1995 Supreme Court 77, wherein the process of short listing of the candidates who had applied for the post of Presiding Officers of the Labour Courts, the Public Service Commission, M.P. took a decision to call for interview only those candidates who had completed 7½ years of practice, although the minimum requirement for the eligibility of the candidates who had applied for the posts was 5 years. Referring to the said case, the learned Counsel for the petitioners submits that oral interview in the instant case was not improper or illegal. 18. We are not impressed with the arguments because 5 years' experience at the Bar was mere eligibility to apply for the post but not their entitlement as clearly explained in the above Apex Court decision. In the instant case, oral interview was taken though the statutory rules did not provide for that and as such the above Apex Court decision is clearly distinguishable and not applicable to the facts of the present case. 19. In the instant case, oral interview was taken though the statutory rules did not provide for that and as such the above Apex Court decision is clearly distinguishable and not applicable to the facts of the present case. 19. On the facts and in the circumstances of the present case, we find that the exclusion of the respondent Nos. 1 to 3 herein from the select list on the basis of the result of the oral interview held in contravention of Regulation 746 of the Police Regulations of Bengal, 1943 which was the extant rule at the time of the said interview has been illegal and the Tribunal, in our opinion, was justified in passing the impugned order rejecting the contentions raised by the petitioners herein. In view of the above, we hold that there is no merit in this writ application and the same is dismissed. No order as to costs. Chatterjee, J.: I agree.