PETITIONER: STATE OF WEST BENGAL & ANR. Vs. RESPONDENT: BANDAN BAYEN & ORS. DATE OF JUDGMENT07/12/1995 BENCH: K.RAMASWAMY, B.L. HANSARIA ACT: HEADNOTE: JUDGMENT:
O R D E R
Leave granted.
The only question in this appeal is whether the
respondents are governed by the Rules for the regulation of
the recruitment to the clerical service of the Secretariat
and certain other offices of the Government of West Bengal
issued in Notification No. 2083-F dated July 21, 1954 or the
West Bengal Boards Miscellaneous Rules, 1955 for appointment
to the Lower Divisions. The facts are not in dispute. The
appellant called for the names from the Employment Exchange
in the notification for recruitment. Calling their names,
the appellants prescribed passing of the written exams and
typing with 30 w.p.m. speed as qualification apart from
other qualifications. Pursuant thereto, the names of the
candidates have been sent. 545 candidates were qualified in
the written examination and were required to pass the typing
test. After conducting the typing test, respondents 44-189
had passed the test and the other respondents did not pass
the test. Consequently, they could not be appointed. When
they had approached the High Court under Art. 226 for
necessary directions, the learned single Judge dismissed the
writ petition. But on appeal, the Division Bench in F.M.A.
No. 648/91 by order dated April 27, 1992 set aside the order
of the learned single Judge and directed that the
appointment of respondents 44-189 were not upset. Yet
directed that the respondents be appointed. Feeling
aggrieved, this appeal by special leave has been filed.
Pursuant to our directions dated November 2, 1995, the
appellants have placed on record the relevant Rules relating
to the Schedule 2, 2-A as enumerated in Rule 4 of the
Secretariat Rules referred to hereinbefore. In form of
notification it is stated in column 3(c) thus:
“Qualification required:
School Final or its equivalent. Must
have knowledge in English Typing with a
minimum speed of 30 words p.m. Such
knowledge in typing is not essential for
the physically handicapped persons.”
Under Rule 65 of the West Bengal Board’s Miscellaneous
Rules, 1955 qualifications for permanent appointment to the
Lower Division are specified of which condition (d) provides
that:
“In the case of vacancies in the
district or sub-divisional offices an
examination of candidates should be held
after due notice within the period
mentioned in rule 62 to select the best
persons for the posts. The examination
will be held in English and Bengali to
test (a) handwriting, (b) knowledge in
English and Bengali (c) general
knowledge and intelligence. There will
be one paper to be answered in two
hours. The tet for typewriting will be
for half an hour. A candidate should be
able to transcribe accurately from
legible handwriting at a rate of not
less than 30 words per minute and the
paper will be marked on the basis of a
penalty of five words for every mistake
e.g. misspelling, wrong spacing, wrong
paragraphing. One letter typed over
another, etc. The manuscript will be
such as is used in ordinary Government
Correspondence and the percentage of
errors permissible shall not be more
than 5 percent. The examinations should
be held by the District officer or by
any senior Gazetted officer to whom he
may delegate the duty.”
As noted earlier, pursuant to the advertisement and
prescription of the qualification, the respondent Nos.1 to
43 had appered and sat for the examination. They were
qualified in the written examination. They had also appeared
for the typing test and therein they were not qualified. The
question thus emerges whether the West Bengal Services
(Secretariat Common Cadre) Rules, 1984 (for short `the
Rules’) issued under proviso to Art.309 of the Constitution
would be applicable to the method of recruitment of L.D.Cs.
to be appointed in the district and sub-divisional offices.
The Rules themselves clearly envisage that they are
applicable to Secretariat Common Cadre Rules. Rule 4 which
is relevant in this case postulates that notwithstanding the
provisions of the West Bengal (Classification Control and
Appeal) Rules, 1971, the competent authority to make the
recruitment is envisaged in Rule 7. Rule 4 would be
applicable to the list of departments specified in the
Schedule. Schedule has been appended and clause (iv)
envisages `Department of Land and Land Reforms”. At the end
it is stated under the head `Offices’ `1. Board of Revenue,
West Bengal’.
Relying upon these rules, Shri M.N. Krishnamani, the
learned Senior counsel for the respondents 1-43 contended
that the respondents working in the Department of Land and
Land Reforms are controlled by the Board of Revenue.
Therefore, they are required to be governed by the Rules
which though initially prescribed pass of the typing test
but it is not a condition for appointment. The qualification
could be acquired during probation. That rule subsequently
was deleted, consequently, the respondent Nos. 1-43 need not
pass the accounts test. We find no force in the contention.
It is seen that the Rules themselves would clearly
indicate that they are applicable to the Secretariat and the
Offices mentioned in the Schedule. Department of Land and
Land Reforms mentioned in the Schedule is a Department in
the Secretariat. In the `Offices’ it is mentioned the Board
of Revenue. It would thus be seen that Secretariat is a
separate wing and the Board of Revenue is the Head of the
Department. That gets manifested when we see Schedule 2 and
Schedule 2-C attached to the West Bengal Public Service
Commission Regulation, 1937. It clearly enumerates various
clerical establishment, stenographers and typist of the
Secretariat and typists in all the departments. They are all
heads of Departments. That was also manifested in Schedule
2-C including the Inspector General of Prisons and the
Conservator of Forests. It would thus be seen that the
regulations for recruitment through Public Service
Commission are in respect of clerical establishment,
stenographers and typists of the Secretariat and the heads
of the departments. Regulation 31 excludes other departments
which envisages thus:
“It shall not be necessary to consult
the Commission with respect to the
matters specified in clauses (a) and (b)
of sub-section (3) of section 266 of the
Act for any service or post not included
in Schedule “C” annexed hereto the
appointing authority for which is an
authority subordinate to the Provincial
Government.”
In other words, except those mentioned in Schedule 2
and 2-C, all other departments in other respects the
district and sub-divisional offices stand excluded by
operation of Regulation 31 of the West Bengal Public Service
Commission Regulation 1937. Once they stand excluded from
the recruitment by the Public Service Commission, the
necessary concomitant result would be that they are governed
by the Board’s miscellaneous Rules, 1955. They clearly
envisage passing of typing as a qualification for
appointment as a LDC in the district and sub-divisional
offices. It would, therefore, be clear that the recruitment
was properly and legally made, respondent Nos. 1-43 and 114-
120 having appeared and failed in typing examination, cannot
now turn round and contend that the said rules are
inapplicable and the Rules are applicable to them. Our view
gets support also frm the decision of this Court in C.A.
4531/92, dated October 22, 1992.
In case of future recruitment, it may be open to the
respondent Nos. 1-43 and 114-120 to appear for the
examination and claim their right to be considered for
recruitment as LDCs. In the event if any of them happen to
be barred by age, necessary relaxation of age may be given
and they may be considered according to rules.
The appeal is accordingly allowed and the order of the
Division Bench is set aside and that of the learned single
Judge stands confirmed. No costs.