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2007 DIGILAW 846 (CAL)

Badiuzzaman v. STATE OF WEST BENGAL

2007-12-05

KALYAN JYOTI SENGUPTA, MANIK MOHAN SARKAR

body2007
JUDGMENT:- (1). ALL the aforesaid matters are heard together as the points of law involved in these matters are identical and decision on the question of law is depending upon the decision of each and every individual case. In all those cases the learned Tribunal had rejected by a common judgment, claim and contention of the respective applicants. In all those cases the applicants before us on diverse dates participated in selection process for appointment of Constables in Calcutta Police establishment. Almost in all the cases the applicants, though having qualified themselves in physical measurement test had failed to qualify in various endurance tests, namely 100 meters, 800 meters run within stipulated time, long jump of particular distance, and interview. It was legal contention that under Regulation 11 of Police Regulation Calcutta, 1968 (hereinafter PRC in short) the method of recruitment to the posts of constables and sepoys are provided. In this regulation recruitment shall be by direct selection from and amongst the candidates having qualification of ages of 18 and 25 years, ability to read and write the vernacular, and having minimum measurement of physique as mentioned therein. None of the modes namely completion of 100 meter run within 14.5 seconds, 800 meters within 2.50 minutes, long jump of distance minimum 15 feet and interview can be undertaken as there is no provision in the said published regulation. The learned tribunal having relied on notification issued by Deputy Commissioner of Police dated 4th July, 1994 whereby existing provisions of the method of recruitment to the post of constable, sipahi, police driver in Calcutta Police has been sought to be changed by way of addition of some other mode, held that their elimination on the basis of amended provision of the Regulation was valid and lawful. (2). THAT apart factually the learned Tribunal in the common judgment held that most of the claimants approached beyond the period of limitation. (3). HAVING heard the learned Counsel for the parties we have decided to address the question of law relating to the legality and validity of the amendment of the Regulation by the above notification, naturally competency of the Commissioner of Police, and thereafter we shall examine each and every individual applicants case on merit. (3). HAVING heard the learned Counsel for the parties we have decided to address the question of law relating to the legality and validity of the amendment of the Regulation by the above notification, naturally competency of the Commissioner of Police, and thereafter we shall examine each and every individual applicants case on merit. Therefore as far as the point of limitation is concerned we think all these cases can not be bracketed in one omnibus findings, because facts relating to limitation in these cases substantially diverse and different. (4). IT is submitted by the learned Counsels for the applicants in each and every matter including Mr. Sadananda Ganguli learned Advocate who really spearheaded arguments on behalf of the applicants, though the learned lawyers in each and every applications have advanced separate arguments substantially, adopting argument of Mr. Ganguli. Mr. Ganguli submits that, firstly the aforesaid notification dated 4th July, 1994 was issued by the Deputy commissioner of Police being a delegatee of the Commissioner of Police aiming at to modify the existing provision of the method of recruitment to the post of constable. The above notification, he urges, is ultra vires as the Commissioner or for that matter Deputy Commissioner of Police had no power to issue such notification under Calcutta Police Act, 1866 (hereinafter referred to as said act). (5). HE contends that it is the subject of recruitment of Calcutta Police constable as such Regulation 11 of Police Regulation Calcutta, 1968 (hereinafter in short PRC) governs recruitment methodology which is set out hereunder: "11. Constables and Sepoys: (1) Method of recruitment.-Recruitment to posts of Constables and sepoys shall be direct by selection. The following shall be the necessary qualifications for candidates for posts of constable and sepoy:- (i) General-Candidates shall be citizens of India and strong and healthy young men between the ages of 18 and 25 years on the 1st January of the year of recruitment preferably able to read and write the vernacular. (ii) Measurement-The following shall be the minimum measurements ; but the candidates of best physique obtainable shall be selected :- SAURASO_89_WBLR2_2008.HTM Note.-The Commissioner may relax the physical standard in respect of height and chest measurement of candidates in exceptional circumstances and for special reasons to be recorded in writing. (ii) Measurement-The following shall be the minimum measurements ; but the candidates of best physique obtainable shall be selected :- SAURASO_89_WBLR2_2008.HTM Note.-The Commissioner may relax the physical standard in respect of height and chest measurement of candidates in exceptional circumstances and for special reasons to be recorded in writing. (2) Candidates offering themselves for selection shall be paraded on the parade Ground and inspected by a Selection Board consisting of a Deputy Commissioner and an Assistant commissioner of Police nominated by the Commissioner. Appointment shall be made of candidates including in an approved list of candidates prepared on the recommendation of the Selection board. The Candidates shall be medically examined by the Police surgeon, Calcutta, or by the District Medical Officer of the District in which they are recruited. (3) Not recruiting party shall be sent outside West Bengal without the previous sanction of Government. (4) Candidates shall, on recruitment, be posted to the Police Training college or School and shall be required to pass out of the College or School, as the case may be, after having undergone a course of training there. (5) Recruits who resign before confirmation shall refund to government the cost of their training and travelling allowances, if any. (6) The age restrictions specified in clause (i) of sub-rule (1) shall not be enforced in the case of combatant ex-Army Personnel, but ordinarily the age shall not exceed 35 years. (7) The military service of the combatant ex-Army Personnel recruited after their discharge from the army shall count towards increment in their pay in Police Force. " (6). IT will be clear from the aforesaid Regulation that there is no room for taking any other method of recruitment apart from mentioned therein, there is no mention for asking to undergo 100 meters and 800 meters run respectively within stipulated time, also long jump of minimum distance as mentioned in the impugned notification, even there is no provision for taking interview. According to him once the aforesaid measure of eligibility is fulfilled by a candidate and being chosen to be the best on physical measurement test there is no scope for taking further test to select him. The regulation spoken of by the respondents was issued in Calcutta Police Gazette not in the official gazette as required by law. According to him once the aforesaid measure of eligibility is fulfilled by a candidate and being chosen to be the best on physical measurement test there is no scope for taking further test to select him. The regulation spoken of by the respondents was issued in Calcutta Police Gazette not in the official gazette as required by law. Therefore it cannot be valid publication, even if had it been published in official gazette, still the same would have been ultra vires. (7). HE further submits that under the provision of Section 9 (A) of the said Act State Government alone may frame or amend Rules relating to recruitment, conditions of service, disciplinary proceedings punishment in respect of members of the subordinate ranks of the Police Force. The said notification is therefore invalid and ineffective. (8). QUITE a few number of decisions have been cited at the Bar on the subject of mode of recruitment of Calcutta police constables. We think that those decisions need to be discussed the same are apparently conflicting each other on the fact and the views. Learned Tribunal in case of Yasin Molla v. State of West Bengal (O. A. No. 1538 of 1997) on 8th July, t999 did not accept the said notification dated 4th July, 1994 as being valid amendment of recruitment Regulations. It was held in that case that Regulation 11 of Chapter xv of Calcutta Police Regulation, 1968 has to be followed ignoring the aforesaid amendment. The aforesaid judgment of the learned Tribunal was challenged by. the State of West Bengal in W. P. S. T. No. 352 of 1999 (State of West bengal and Ors. v. Yasin Molla) in this Court. The Division Bench of this Court dismissed the appeal and held that the aforesaid notification purporting to amend Regulation relating to recruitment of Calcutta police constables is not the Rule framed under Section 9a of the said Act, 1866. It has been held by the Division Bench further that the said notification cannot be termed to be a rule framed by the Government. Therefore, the same cannot be accepted nor be enforceable, under the law. Consequently the decision rendered by the learned Tribunal was upheld: The State of West Bengal filed an S.L.P. on 19th January, 2004 unsuccessfully against the aforesaid judgment of the division Bench. In case of W.P.S.T. No. 472 of 2000 (State of West Bengal and Ors. Therefore, the same cannot be accepted nor be enforceable, under the law. Consequently the decision rendered by the learned Tribunal was upheld: The State of West Bengal filed an S.L.P. on 19th January, 2004 unsuccessfully against the aforesaid judgment of the division Bench. In case of W.P.S.T. No. 472 of 2000 (State of West Bengal and Ors. v. Sk. Taj Alam), an unreported judgment, the Division Bench of this court on 25th January, 2001, dismissed the State appeal holding that interview contrary to the recruitment Rules, is not permissible. The State Governments contention was that the Rule was framed in 1992 incorporating provision for interview and the same was published in Police Gazette. The Division Bench held, while considering the provision of Section 46 sub-section (2) of the Police act, 1861 that any Rule framed by the Government has to be notified in the official Gazette as the same was not done it cannot be said to be an enforceable rule. In another unreported decision this Court, in case of W.P.S.T. No. 283 of 2002 (San/ay Kumar Mondal v. The State of West Bengal and Ors.) while considering the provision of Section 2a of the Police Act, 1861 held that provision for 100 meters run etc. contrary to the Police Regulation of Bengal is not acceptable as the same was not validly passed Regulation by the appropriate authority. In case of Abdur Rahim Sardar v. State of West Bengal and Ors. reported in (2004)2 Cal HN 602 the Division Bench of this Court held that any method or procedure for short-listing of the suitable candidates in the matter of recruitment of police constables is permissible. By this judgment it was held that viva-voce test as a part of the recruitment process is not unreasonable and arbitrary. It is pertinent to mention that in this case the legality and validity of the aforesaid notification of 1994 issued by and on behalf of the commissioner of Police was not questioned nor it was decided. It is also appropriate to note that the ratio decided in case of Yasin Molla by the Division bench of this Court was not brought to the attention of the learned Judges. According to us, Abdur Rahim Sardars case has not laid down any law relating to the validity and legality of the aforesaid notification. It is also appropriate to note that the ratio decided in case of Yasin Molla by the Division bench of this Court was not brought to the attention of the learned Judges. According to us, Abdur Rahim Sardars case has not laid down any law relating to the validity and legality of the aforesaid notification. In that case on fact no relief was granted to the applicant candidate who became-unsuccessful in the oral interview. This judgment of Abdur Rahim Sardars case reported in (2004)2 cal HN 602 was sought to be reviewed subsequently unsuccessfully. The division Bench of this Court by judgment and order dated 15th May, 2007 dismissed the review application. While deciding the matter the Division Bench observed that while selecting, strong and healthy young man asking the candidate to run 100 meters or 800 meters and to undergo long jump test of a minimum distance of 15 feet is not unreasonable, rather a determinative factor of holding a candidate being strong and healthy. It appears to us that in this judgment issues involved in the original judgment were something different from this one. In the original judgment which was sought to be reviewed, only question was whether viva voce test is contrary to Rules or not. The interpretation of the words "strong and healthy young man" was not the issue but this issue raised therein was not decided. In our view, this Division Bench judgment cannot be binding precedent for the question raised here. (9). AFTER analyzing all the aforesaid judgments we think that the law laid down in the Yasin Mollas case in principle holds the field as the Supreme court dismissed the S. L. P. To support this we find the position of law is as follows: regulation 11 has been framed under the provision of Calcutta Police act, 1866. Section 9a became part of the statute by way of amendment of the west Bengal Act 15 of 1962. Section 9a provides as follows: "9a. Power of State Government to frame rules.-(1) Subject to the provisions of this Act, the State Government may make rules relating to recruitment, conditions of service, disciplinary proceedings and punishments, in respect of members of the subordinate ranks of the police-force. Section 9a provides as follows: "9a. Power of State Government to frame rules.-(1) Subject to the provisions of this Act, the State Government may make rules relating to recruitment, conditions of service, disciplinary proceedings and punishments, in respect of members of the subordinate ranks of the police-force. (2) Any rules, orders or regulations made before the commencement of the Calcutta and Suburban Police (Amendment) Act, 1962 by any authority in respect of the aforesaid matters shall, in so far as they are not inconsistent with the provisions of this Act, be deemed to have been validly made and shall continue in force until other provisions are made in this behalf. " (10). THE Calcutta Police Regulation was framed earlier. Thus, the regulation 11 framed earlier by virtue of sub-section (2) is held to be valid and subsisting as the same is not to be found inconsistent with any provision of the act. (11). IF this Regulation is read it will be found that it was framed by the commissioner of Police as at that point of time he was empowered to frame the same. (12). IN our view, in view of the insertion of Section 9a Rules framing power relating to the recruitment has been taken away from the Commissioner of Police and now the Government is conferred with such power. (13). THEREFORE, notification dated 4th July, 1994 No. 793 purporting to incorporate 100 meter run within 14.5 seconds, 800 meter run within 2 minutes 50 seconds and long jump of 15 feet and other provisions aiming at to change the recruitment method is ultra vires of the aforesaid Act as the Commissioner has no power to do so. The act and action of the Commissioner of Police cannot be the act of the State Government as any act and action done or taken by the Government is always in the name of the Governor under the provision of the Constitution. In our view provision of Article 309 has no manner of application. Article 309 contemplates enactment of appropriate legislation relating to the recruitment etc. and so long this enactment is not made the executive decision in respect of this field as a temporary measure, can be taken and this will be clear from the language of Article 309 of the Constitution of India: "309. Article 309 contemplates enactment of appropriate legislation relating to the recruitment etc. and so long this enactment is not made the executive decision in respect of this field as a temporary measure, can be taken and this will be clear from the language of Article 309 of the Constitution of India: "309. Recruitment and conditions of service of persons serving the Union or a State.-Subject to the provisions of this Constitution, acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State : provided that it shall be competent for the President or such person as he may direct in the case of services and. posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act. " (14). IN our view by this Calcutta Police Act 1866 power is conferred upon the State Government to change or modify the recruitment method as provided in the aforesaid Regulation. So long it is not done existing Regulation 11 has to be followed whatever may be impossible situation allegedly being faced by the administration. Proviso of Article 309 envisages for temporary measure and applicable so long appropriate legislation is not made, meaning thereby measure to fill in vacuums. (15). REGULATION 11 is clear and there is no room for taking 100 meter run or 800 meter run or for that matter of taking oral test. (16). IT is submitted on behalf of the State that the impugned notice dated 4th July, 1994 was issued by the Commissioner of Police and not by the government, though, it has power to do so as the head of the Calcutta Police and in support of this proposition the judgments of the Supreme Court and this court reported in (2006)6 SCC 395 ; (1998)2 Cal LJ 125 respectively have been relied on. We are of the view, having gone through the entire Calcutta police Act, that the Commissioner of Police is the head of the police but under th6 provision of this Act all powers and authority have not been given to him. Therefore, he cannot be said to be an absolute head of the police in the matter of recruitment policy. In the judgment of the Supreme Court reported in (2006)6 scc 395 the above proposition as propounded by the learned lawyer for the state, has been held in the context of the power of the High Court of a State relating to recruitment of judicial officer. Under the Constitution the High Court is the head of the judiciary and it has been given power to lay down the norms and procedure to select suitable candidates. Naturally, High Court can take all the decisions with regard to the recruitment as a supplement to the existing rules. The Division Bench judgment of this Court reported in (1998)2 Cal LJ 125 was held completely in a different context. In that case one of the issues was whether the petitioners, after having participated in the selection process can challenge the changed mode of recruitment of not. In paragraph 12 of the said judgment it is held that the petitioners, after having participated in the selection process without any protest and having taken a chance by sitting on the fence cannot be allowed to turn round and challenge the mode of selection. In that case it was not the issue whether the respondent Steel Authority of india had any power or jurisdiction to change either by adding or deleting existing method of recruitment. This judgment in our view is not at all helpful for the issue raised before us. Similarly, decisions of the Supreme Court reported in (1989)2 SCC 386, and another judgment of the Division Bench rendered in case of W. P.S.T. No. 95 of 2004 relied on by the State are not at all helpful as in those cases power of the Commissioner to amend the recruitment rules was not in question. In these judgments the methodology of the recruitment rules as adopted by the Commissioner have been held to be reasonable and justified but not his authority. We are not, for a single moment, thinking of justifiability and reasonableness of the methodology sought to be brought in by the Commissioner. In these judgments the methodology of the recruitment rules as adopted by the Commissioner have been held to be reasonable and justified but not his authority. We are not, for a single moment, thinking of justifiability and reasonableness of the methodology sought to be brought in by the Commissioner. Those judgments, in our view, have not decided the issues involved herein. (17). IN our considered view, question of estoppel as raised here does not and cannot arise because a particular person cannot be compelled to comply with certain condition which has got no force of/law. The decision of the Supreme Court reported in AIR 1964 SC 1823 cited at the Bar is not at all helpful in this case to answer the issue of the authority of Commissioner as raised hera In the Supreme Court judgment one of the issues was whether issuance of interview letter not in the name of the Governor but in the name of the some other officials of the department, can be a valid action under Article 166 of the Constitution of India or not. In that context it was held on fact that the said interview letter was issued by the authority of the Government and there has been compliance of Article 166 of the Constitution of India. (18). SIMILARLY decision in Union of India v. Amrik Singh reported in (1994)1 SCC 269 sought to be relied on by the learned Counsel for the State is of no help in the issues involved here. In that case, the question was whether, in addition to the existing statutory recruitment rules made by the President in consultation with C and AG, any supplementary administrative instruction could be validly issued by the C and AG, or not. In other words, whether C and AG is competent to issue any instruction or not. (19). IT was held by the Supreme Court considering constitutional provision that C and AG being administrative head in its own department who has to be always consulted by the President for framing the rules, has authority to supplement the existing rules relating to the recruitment process. No such power under the statute any longer is remaining with the Commissioner, In case of Union of India and Ors. v. Raj Kumar Gupta and Ors. reported in 1995 supp. No such power under the statute any longer is remaining with the Commissioner, In case of Union of India and Ors. v. Raj Kumar Gupta and Ors. reported in 1995 supp. (2) SCC 607 it was held that the Railway Board being an administrative head under the rules had power to issue instructions as a supplement to the existing rules relating to recruitment, In Ratan Lal Bohras case reported in (1996)8 SCC 735 it was also held that the department concerned has authority to issue circulars to give effect to existing rules. In this judgment there was no issue whether the department concerned in absence of express provision, had any authority to amend the existing recruitment rules as it is case here. In this case, at present the Government has been expressly given power which had hitherto been kept with Commissioner before amendment of the Calcutta police Act as we have already observed. Therefore, the legislatures intention was to take away this power from the Commissioner relating to the recruitment. The Government did not intend to keep power with the Commissioner of Police and such intention is discernible with the amendment. Had it been so it would have come forward to accept the Commissioners unauthorized effort to amend or change existing rules prior to 22nd June, 2005. By a notification dated 22nd june, 2005, in exercise of power under Section 29a of the Calcutta Police Act, now the Government has amended the method of recruitment. At present by amended methodology 100 meter run, 800 meter run, long jump, oral interview and written test have been provided. Thus, it is clear that the notification given earlier by the Commissioner may be in conformity with the present amendment but it cannot partake the character of a valid piece of subordinate legislation. State legislature has delegated power to the Government to frame rules and commissioner cannot act as second delegatee on behalf of the Government simply because there cannot be a second delegation. In our view this amendment made by the Government by notification dated 22nd June, 2005 cannot haye retrospective operation. Present cases relate to incident or cause of action that had occurred long time before this amendment came into force. (20). In our view this amendment made by the Government by notification dated 22nd June, 2005 cannot haye retrospective operation. Present cases relate to incident or cause of action that had occurred long time before this amendment came into force. (20). THE decisions of the Court approving changed methodology issued by the impugned notification cannot take place of law and it will apply to each and every individual case only, besides the issue raised here were not decided by the Courts in the judgments relied on by the State whether the Commissioner has authority to change the methodology or not. The learned Tribunal has similarly felt necessity of adopting methodology of short-listing in view of participation of a large number of candidates. Howsoever, laudable is the feeling of the learned Tribunal, but it cannot take the role of an Administrator rather to decide the issues raised before them. Therefore, those observations of the learned Tribunal relating to justifiability and relevancy relating to methodology adopted by the Department is absolutely besides the point. Learned Tribunal travelled beyond the issues, accordingly we do not approve of these observations. (21). NOW we have to examine the cases on factual score individually. Firstly, whether the applications were filed before the learned Tribunal as per provisions of the Administrative Tribunal Act or not and secondly on fact whether they came to be qualified undisputedly as per the norms laid down in Regulation 11 or not. (22). THE applicant in this case (WPST 1301 of 2001 Badiuzzaman v. State of West Bengal and Ors.) took interview on or about 15th December, 1993 and he was successful in physical measurement test and then he was unsuccessful in 100 meter run in 14 seconds in terms of the above notification of 1994. The applicant challenged the decision of his elimination by filing a writ petition being C. O. No. 18300 (W) of 1993. The said writ petition thereafter was transferred to the Tribunal being formed, and registered as T. A. No. 287 of 1996. No affidavit-in-opposition has been filed despite direction being given. Therefore, the statements made in the writ petition are deemed to be correct. In our view, in this case, the petitioner must get the benefit of judgment rendered in Yasin Mollas case and also ourfindings as above. Therefore, this application is allowed. No affidavit-in-opposition has been filed despite direction being given. Therefore, the statements made in the writ petition are deemed to be correct. In our view, in this case, the petitioner must get the benefit of judgment rendered in Yasin Mollas case and also ourfindings as above. Therefore, this application is allowed. We set aside the dismissal order of the Tribunal so far as this applicant is concerned. We direct the respondents to take steps for appointment of the petitioner in the existing vacancy if available, if not, in immediate future as and when vacancies will arise subject to formalities which are required to be observed.