SILADITYA DE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner pursuant to an advertisement published in the newspaper applied for the post of a Sergeant in the Calcutta Police Force. By a letter dated 15th October, 1969, issued from the office of the Commissioner of Police, Calcutta, the petitioner was asked to call at the Police Training school on the 30th October, 1969. On the 30th October, 1969, the petitioner appeared for physical measurement and was selected for a test. On 8th November, 1969, the petitioner appeared in the written test in essay writing in English and general knowledge and was successful in the written test. Thereafter in February, 1970, the petitioner appeared before the Selection Board at the Police Head Quarters at Lalbazar. In May, 1970, the petitioner appeared before the Police Surgeon at the Calcutta Police Hospital for medical examination and was declared medically fit. By a letter dated 19th June, 1970, issued by the Deputy Commissioner of Police, Head Quarters, Calcutta, the petitioner was selected for appointment as a sergeant in the Calcutta Police Force. It would be necessary to refer to the said letter in detail as contentions have been made on the basis of the said letter. The said letter states as follows :

(2.) IT was contended, on behalf of the petitioner that the petitioner held a civil post under the State of West Bengal and the impugned order amounted to removal with a stigma and a punishment and inasmuch as there had been no compliance with the provisions of Article 311 (2) of the Constitution of India, the order in question was void. It was submitted secondly that the order in question was also violative of Rule 47 of the Calcutta Police Regulations dealing with the sergeants inasmuch as the order in question did not state any reason. It was stated on behalf of the respondents in the affidavit-in-opposition filed by Narendra Nath Majumdar affirmed on the 3rd September, 1971 that the petitioner and three other candidates were found unsuitable and were discharged by order No. 684 on the 9th July, 1971. It was further stated that Rule 47 of Chapter XV of the Calcutta Police Regulations did not apply to the petitioner who was undergoing training for appointment on probation. It was further stated that Rule 47 applied only to cases of probationers who had been appointed as probationers after satisfactory completion of training after having been duly selected to be admitted as probationers. It was stated that the Board of Examiners before whom the petitioner appeared after having passed the written examination found him unsuitable for being selected as a probationer after an interview for which an opportunity had been given to the petitioner and after consideration of the records of his training, the result of his examination and all other factors the impugned order in question was passed. Along with the affidavit the Minutes of the Meeting of the Board of Examiners held on the 28th June, 1971 to review the results of the final examination of direct cadet sergeants, were annexed. Against the petitioner's name it appeared as follows :

(3.) THE question that requires consideration in this case is whether Article 311 (2) of the Constitution applies. It is undisputed that if the provisions of Article 311 (2) applied then same had not been complied with in the instant case inasmuch as there was no enquiry against the petitioner giving him. reasonable opportunity. It appears to me and it was not seriously congested at all that the order in question, undoubtedly amounted to removal and also that the order in question undoubtedly attached a certain amount of stigma upon the petitioner. The petitioner was being discharged not because he was unfit but because he was found unsuitable. A finding to that effect would seriously impair the possibility of any future employment. It is an order where there is an indication of stigma. This position also was not seriously disputed. The question which was strenuously canvassed in this case, however, was whether the petitioner held any civil post under the State of West Bengal entitling the petitioner to protection of Article 311 (2) of the Constitution. It was contended on behalf of the petitioner that at the relevant time he held such a civil post, being a probationer sergeant. It was contended on the other hand by counsel for the respondent that the petitioner did not hold any civil post. It was also not disputed by counsel for the respondent that even in the cases of probationers the provisions of Article 311 (1) would be applicable. The question that, therefore, requires consideration is, whether at the relevant time the petitioner was appointed to the civil post or to be more precise the petitioner was at the relevant time a probationer. In order to determine this contention it would be necessary to refer to the relevant provisions of the Rules, being Rude 6 of Chapter XV of the Police Regulations, Calcutta. Rule 6 deals with recruitment of sergeants. It is necessary to set out the said Rule. Rule 6 states as follows :