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2002 DIGILAW 244 (CAL)

Sisir Kumar Bandyopadhyay v. State of West Bengal

2002-04-11

Jayanta Kumar Biswas, Tarun Chatterjee

body2002
Judgment Jayanta Kumar Biswas, J. This is an application for review. The applicant, Sisir Kr. Bandyopadhyay had filed the Original Application No. 287 of 1997 in the West Bengal State Administrative Tribunal (in short' the Tribunal'). By an order dated November 11, 1997 the Tribunal rejected the said Original Application. Thereupon the applicant moved a writ petition being W.P.S.T. No. 403 of 1997 before the Division Bench of this court. The said Writ Petition was dismissed by a judgment and order dated February 16, 1998. The present application has been filed for review of said judgment and order. 2. The Police Regulations, Calcutta, 1968 (in short the 1968 Regulations') were framed in terms of provisions of the Calcutta Suburban Police Act, 1866 and the Calcutta Police Act, 1866 the 1968 Regulations' were divided into 29 Chapters. 3. Chapter XV of the 1968 Regulations' contains the Regulations regarding method of recruitment, qualifications for appointment including age and conditions of service. 4. Regulations 1 to 66 contained in said Chapter XV are really the incorporation of the amended Rules contained in Schedule-I to the Calcutta and Suburban Police (Subordinate Ranks Recruitment, Conditions of Service and Discipline) Rules, 1962 (in short the 1962 Rules') which were published in the Official Gazette by Home Department Notification No. 2868-PI dated June 3, 1967 of the Govt. of West Bengal. 5. Rule 1 of Schedule-I to the 1962 Rules' contains the provisions regarding method of recruitment of Inspectors other than Wireless Inspectors. Said Rule 1 reads as follows: "1. Inspectors other than Wireless Inspectors.- (1) Method of recruitment-vacancies in the rank of Inspector shall be filled by promotion from the ranks of Sub-Inspector and Sergeant. (2) Promotion shall be based on merit with due regard to seniority. Promotion shall be made of candidates who, on interview by a Selection Board consisting of the Commissioner and all the Deputy Commissioners, are recommended by till Board to be suitable for promotion and included in an approved list for appointment as officiating Inspectors: Provided that for the purpose of appearing before the Selection Board for interview it shall be necessary for the candidates to pass a departmental examination the procedure and syllabus for which shall be such as may be determined by the Commissioner. (3) Sub-Inspectors and Sergeants recruited direct to their posts shall be eligible to sit for the said departmental examination after their confirmation and on completion of seven years' service including temporary service in their rank. The departmental Sub-Inspectors, that is to say, Sub-Inspectors who have been so appointed on promotion from lower ranks shall be eligible to sit for the aforesaid examination after their confirmation in the rank of Sub-Inspector provided that their total length of service as Sub-Inspector is not less than seven years. (4) An officiating Inspector having completed two years' continuous service in the rank shall be eligible for appearing before the Selection Board referred to above for inclusion of his name in the panel of officiating Inspectors fit for confirmation as Inspectors. (5) Inspectors so promoted shall, in the first instance, be on probation." 6. Under paragraph No. 1221 of the Calcutta Police Gazette dated August 14, 1996 and order issued by the Commissioner of Police, Calcutta being C.O. No. 311 dated August 13, 1996 was published. Said order was as follows: "As per Rule-I Chapter-XV of the Police Regulation Calcutta on Recruitment and Probation, there is provision or interview for eligible candidates by a Selection Board. The Selection Board shall comprise the Commissioner of Police, Calcutta as the Chairman, Deputy Commissioner of Police, Headquarters, Calcutta and any seven officers out of the available Additional Commissioners of Police, Joint Commissioners of Police and Deputy Commissioners of Police to be nominated by the Commissioner of Police, Calcutta personally. The Selection Board shall interview an eligible candidates and award marks on the basis of: (a) Service Records of the candidates for the last five years, (b) Annual Confidential Roll of the candidates for the last five years, and (c) a Working Report in favour of the candidate to be submitted by the concerned unit/Divisional Deputy Commissioners of Police, Calcutta. (C.O. No. 311 dated 13-8-96)" 7. The applicant who had been working in the Calcutta Police from the year 1974 as a Sergeant was eligible to be considered for promotion to the post of Inspector, for recruitment whereto-by promotion, the Commissioner of Police issued the said order dated August 13, 1996 as published in said Calcutta Police Gazette on August 14, 1996. 8. The applicant who had been working in the Calcutta Police from the year 1974 as a Sergeant was eligible to be considered for promotion to the post of Inspector, for recruitment whereto-by promotion, the Commissioner of Police issued the said order dated August 13, 1996 as published in said Calcutta Police Gazette on August 14, 1996. 8. The applicant contended that the said Order No. 311 dated August 13, 1996 issued by the Commissioner of Police amounted to amendment of the Statutory method of recruitment as contained in Regulation 1 of Chapter XV of the 1968 Regulations' and as the Commissioner of Police was not empowered to effect such amendment, his order dated August 13, 1996 was ultra vires the Statutory Rules and consequently a nullity in the eye of law. According to the applicant the order amounted to amendment of the Statutory Rules, because the Selection Board proposed to be constituted by the Commissioner by his said order was not in conformity with the provisions of Regulation 1 of Chapter-XV of the 1968 Regulations'. 9. Contending as aforesaid on March 11, 1997 the application moved the Original Application No. 287 of 1997 before the Tribunal. 10. By an order dated November 11, 1997 the Tribunal rejected the Original Application holding that the questions regarding validity of the procedure of selection and constitution of Selection Board as proposed by the Commissioner by his said order dated August 13, 1996, were not open to challenge in view of the Tribunal's earlier order passed in O.A. No. 557 of 1996. 11. Against the Tribunal's such order the applicant moved the Writ Petition contending, inter alia, that the Tribunal had avoided adjudication of the principal contention raised in the Original Application-in that: the order dated August 13, 1996 issued by the Commissioner had amounted to unauthorised amendment of the provisions of the 1968 Regulations' which only the State Government was empowered to amend. 12. By the judgment and order dated February 16, 1998 a Division Bench of this Court dismissed the said writ petition. The applicant, who appeared in person, was heard by the Division Bench. 12. By the judgment and order dated February 16, 1998 a Division Bench of this Court dismissed the said writ petition. The applicant, who appeared in person, was heard by the Division Bench. It appears from the said judgment and order that the applicant's main contention was that: the Selection Board had been wrongly constituted, as, under the Statutory Rules the Selection Board was required to be constituted only with the Commissioner of Police, Calcutta and all the Deputy Commissioner of Police. The Division Bench held that the constitution of the Selection Board by the Commissioner, though might have been done in an irregular way, did not and could not cause any prejudice to anybody; and as such, the Writ Petition was without any merit. 13. It appears, in March 1998 the applicant obtained the certified copy of the said judgment and order dated February 16, 1998. In paragraph 2 of the review application the applicant has made the following statements: "Your petitioner, on receipt of the certified copy of the judgment did not move any appeal or Review Petition earlier as apparently he did not find any ground till 24th August, 1999 for preferring any appeal or review petition and as such believed the judgment to be valid and true." 14. In paragraph 8 of the review application the applicant has stated that till September 1999 he had no knowledge about the origin of Chapter-XV of the 1968 Regulations' and other Statutory provisions, relying on which he could have preferred an appeal or review against the said Division Bench judgment and order dated February 16, 1998; and that, only in September 1999 he received the certified copy of the Home Department Notification No. 2868-PI, dated June 3, 1967. 15. On November 16, 1999 the applicant filed the present review application. In paragraph 4 of the application he has mentioned the grounds on which he seeks review. Said ground are: "(a) The judgment under review dated 16th February, 1998 contains patent errors apparent on the face of law and records which stare without any elaborate arguments. (b) The judgment under review legalises a violation of statutory rules and colourable exercise of executive power. (c) The judgment under review contravene the provisions of Article 141 of the Constitution of India as the same is contrary to the decisions of the Hon'ble Supreme Court of India. (b) The judgment under review legalises a violation of statutory rules and colourable exercise of executive power. (c) The judgment under review contravene the provisions of Article 141 of the Constitution of India as the same is contrary to the decisions of the Hon'ble Supreme Court of India. (d) The judgment under review was made on the basis of misconceived submissions of the ld. Amicus Curie and ld. Advocates representing the State without adjudicating the main question of power, authority and jurisdiction of the Commissioner of Police in amending a Rule which is framed by the Governor of West Bengal. (e) The Hon'ble Court has erred in deciding that the Commissioner of Police, Calcutta has the power to amend a Rule which is framed by the Governor of West Bengal under the proviso of an Act and misunderstood an entirely illegal change of procedure as 'filling up a lacuna or gap'. (f) That in the ratio in the several judgments passed by the Hon'ble Supreme Court and particularly in the ratio of M. Shankaraiah & Anr. vs. State of Karnataka & Ors., 1993 SCC (Supp 4) 596, the judgment is liable to be recalled in the interest of justice." 16. In support of his case the applicant has relied on the decisions given in the cases of: (1) State of Gujarat vs. Sardarbegum, reported in AIR 1976 SC 1695 ; (2) General Officer Commanding-in-Chief vs. Subhash Chandra, reported in AIR 1988 SC 876 ; (3) L/Naik Mahabir Singh vs. Chief of Army Staff reported in 1990 (Supp) SCC 89 (I); (4) S. Nagaraj vs. Slate of Karnataka, reported in 1993 Supp (4) SCC 595; (5) Common Cause, a Registered Society vs. Union of India reported in AIR 1999 SC 2979 ; and (6) State of West Bengal & Ors. vs. Bubby Singh & Ors., reported in 2001 (2) Cal LJ 22 (DB). He has also relied on an order of the Tribunal given in O.A. No. 1446 of 1998 on November 12, 1999. 17. Mr. Mondal appearing for the State respondents has submitted that besides being hopelessly time barred, the review application is absolutely without any substance. 18. vs. Bubby Singh & Ors., reported in 2001 (2) Cal LJ 22 (DB). He has also relied on an order of the Tribunal given in O.A. No. 1446 of 1998 on November 12, 1999. 17. Mr. Mondal appearing for the State respondents has submitted that besides being hopelessly time barred, the review application is absolutely without any substance. 18. From the pleadings on record and the oral and written submissions made by the applicant we find that he has filed the instant review application on the main ground that: since he had no knowledge of the Notification dated June 3, 1967; he could not argue before the Division Bench that the order dated August 13, 1996 issued by the Commissioner of Police regarding constitution of the Selection Board, had amounted to unauthorised amendment of the Statutory Rules contained in said Notification, and as such, the Commissioner's said order was a nullity irrespective of whether that order had caused any prejudice to the applicant, or not; and therefore the judgment and order is required to be recalled on review. 19. At the present stage we are not concerned as to whether the Commissioner's said order dated August 13, 1996 had amounted to any unauthorised amendment of the provisions contained in the Statutory Rules or not. Such a question was relevant at the stage when the writ petition was being decided. We are now concerned only with the question: whether the applicant has made out a case for review of the judgment and order of the earlier Division Bench by which the Writ Petition was dismissed. 20. Therefore, we are of the view that the decisions cited by the applicant regarding striking down of an action taken in violation of statutory provision, have no manner of application to the present issue. For this reason we do not feel any necessity of dealing with the cited decisions in detail. 21. The applicant states that only after obtaining a certified copy of the Notification dated June 3, 1967 it has become clear to him that his contention that the Commissioner's order dated August 13, 1996 had amounted to unauthorised amendment of the provisions contained in Statutory Rules-was a valid contention. 22. We have already indicated that the Rules framed by the Notification dated June 3, 1967 were fully incorporated in Chapter-XV of the 1968 Regulations'. 22. We have already indicated that the Rules framed by the Notification dated June 3, 1967 were fully incorporated in Chapter-XV of the 1968 Regulations'. The applicant before the Tribunal and then in his Writ Petition contended that the Commissioner's order dated August 13, 1996 had amounted to amendment of the Statutory provisions contained in Regulation 1 of Chapter XV of the 1968 Regulations'. 23. It will not be out of context to mention here that Chapter-XV of the 1968 Regulations' begins specifically with the disclosure of the origin of Regulations 1 to 66 contained in that Chapter. There is a specific mention of the Notification of June 3, 1967. 24. The applicant joined the Calcutta Police in the year 1974. In an earlier case being O.A. No. 557 of 1996 he had unsuccessfully raised the similar contention before the Tribunal. In his writ petition the applicant himself had annexed the very first page of said Chapter-XV of the 1968 Regulations'. In that first page it was specifically mentioned that the said Notification of June 3, 1967 was the source of all the Regulations of said Chapter-XV. 25. Therefore, the case now made out by the applicant in the review application that before September 1999 he had no knowledge of the said Notification of June 3, 1967; does not stand to any reason. We find the plea, to be not genuine. 26. It is on record that raising the contention that the Commissioner's said order dated August 13, 1996 was ultra vires the Statutory Rules contained in Regulation 1 of Chapter-XV of the 1968 Regulations' the applicant had unsuccessfully moved the Tribunal. In the Writ Petition the applicant, inter alia, raised the contention that: the Tribunal had avoided adjudication of the principal contention raised in the original application. 27. From the judgment and order dated February 16, 1998 passed by the Division Bench-it does not appear that the applicant had at all pressed his contention that the Commissioner's decision had amounted to amendment of the Statutory Rules contained in the 1968 Regulations', and as such, the decision was a nullity, as the Commissioner had no power to amend the Statutory Rules contained in the 1968 Regulations. 28. 28. In the entire review application there is no averment to the effect that the aforementioned contention had been raised and the point had been pressed by the applicant while he made submissions, in person, but the Division Bench did not consider such contention and point. 29. In the circumstances it must be held that the contention and the point had consciously been abandoned by the applicant himself at the time of making his submissions is support of his writ petition. Such a presumption is further strengthened by the applicant's own statements made in paragraph 2 of his review application, relevant portion whereof has been quoted hereinbefore. 30. The applicant now seeks recall of the judgment and order dated February 16, 1998, on review on that ground that he could not raise the contention and argue the point: which we find he had consciously abandoned. 31. We are of the view, no judgment and order can be recalled on review to allow a party to the case to agitate any contention and/or point which such party had consciously abandoned or not pressed at the time of making submissions, although the pleadings contained such a contention and/or point. 32. We, therefore, hold that the review application is speculative and without any merit; and accordingly liable to be dismissed. 33. On the question of limitation: The applicant does not contend that there is no period of limitation for filing a review application. His contention is that since the judgment and order was passed due to mistake and it is a judgment per incuriam, prejudicial to future employees of the entire force, provisions of the Limitation Act would not apply; and accordingly this court is under a constitutional and legal obligation to set the injustice right by recalling the judgment and order. 34. In support of his contention, the applicant has relied on the decision of the Apex Court given in the case of State of Gujarat vs. Sardarbegum, reported in AIR 1976 SC 1695 . The applicant further submits that even if there is delay, the same can be condoned on his oral prayer. He makes such prayer, placing reliance on the Apex Court decision given in the case of L/Naik Mahabir Singh vs. Chief of Army Staff, reported in 1990 (Supp) SCC 89(1). 35. The applicant further submits that even if there is delay, the same can be condoned on his oral prayer. He makes such prayer, placing reliance on the Apex Court decision given in the case of L/Naik Mahabir Singh vs. Chief of Army Staff, reported in 1990 (Supp) SCC 89(1). 35. We do not find in the present case that there is any patent error in the judgment and order dated February 16, 1998. We do not find any reason to exercise our inherent jurisdiction to review the said judgment and order after expiry of the period of limitation. We also do not find from the decision of the Apex Court in the case of L/Naik Mahabir Singh that it lays down any proposition of law to the effect that whenever an oral prayer is made for condonation of delay, such delay has to be condoned. 36. The review application was required to be filed within the period of limitation as prescribed by Article 124 of the Limitation Act, 1963. The period of limitation was 30 days from the date of passing of the order sought to be reviewed in the instant case. The application is, admittedly, out of time; and no application for condonation has been filed. Accordingly, we hold that the application is time barred and liable to be dismissed on this ground. 37. For the foregoing reasons, we dismiss the application for review. Considering the fact that the applicant has been appearing in person, we do not award any cost against him, although we hold that the filing of the speculative review application has amounted to abuse of the process of the court. 38. Urgent xerox certified copy, if applied for, be supplied to the parties, on payment of usual requisites, on priority basis. Tarun Chatterjee, J.: I agree. Revisional application dismissed.