JUDGMENT
S.J. Mukhopadhaya, J.
1. In both the writ petitions, as common questions of law involved, they were heard together and are being disposed of by this common judgment.
2. The petitioner Cosmas Bhengra of Writ Petition (S) No. 474 of 2005 has challenged the order contained in Memo No. 4808 dated 29th December, 2004, whereby and where under, he has been removed from service as a measure of punishment as envisaged under Rule 49 read with Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1935 (hereinafter referred to as the Civil Services Rules). The order of removal has been given effect from retrospective date i.e. 26th December, 2003 and issued under the signature of S.P., East Singhbhum, Jamshedpur.
3. The main plea taken by the respondents to remove the petitioner from service is that the petitioner was under age by three days as per terms of advertisement.
4. So far as petitioner Reena Kumari of Writ Petition (S) No. 532 of 2005 is concerned, she has challenged the order, contained in Memo No. 4810 dated 29th December, 2004, whereby and where under she has been removed from service as a measure of punishment as envisaged under Rule 49 read with Rule 55 of the Civil Services Rules. The order of removal has been given effect from retrospective date i.e. 26th December, 2003 and issued under the signature of S.P., Bast Singhbhum, Jamshedpur.
5. The main ground taken by the respondents is that though she was shown to have failed in the written test, but most probably due to over-writing and showing her to have passed, she was recommended by the Selection Committee and appointed to the post of Constable,
6. In both the cases, the main plea taken by the petitioners is that they have been removed from service as a measure of punishment without initiation, of a departmental proceeding, though in the order of removal, the respondent S.P., East Singhbhum, Jamshedpur has referred Rules 49 and 55 of the Civil Services Rules.
7. The case of the petitioners is that they applied for appointment to the post of Constable in pursuance of advertisement published by respondents in Newspapers on 15th August, 2003 (Advertisement No. 1/03), 15th September, 2003 was the last date for submission of applications. It was mentioned that the candidates should be in the age-group of 19 to 35 years (for general category), 19 to 40 (for S.T./S.C. categories) 19 to 37 for Backward/Extreme Backward Categories), as on 1st of January 2003.
8. Both the petitioners applied in pursuance of said advertisement. The petitioner Cosmas Bhengra of Writ Petition (S) No. 474/05 was more than 19 years of age at the time of application (applied in August, 2003), but was three days less than 19 years as on 1st January, 2003, his date of birth being 4th January, 1948. The petitioners were provided with Admit Cards, appeared in the physical and written test along with others and completed all the formalities. They having been selected by the Selection Board, were recommended for appointment and were appointed. Cosmas Behngra was appointed vide letter dated 6th February, 2004 issued by the S.P., Jamshedpur. By another letter dated 6th February, 2004, the petitioner Reena Kumari was appointed by S.P., Jamshedpur. Both of them were sent for Police Training and came out successful. After return from the training, petitioner Cosmas Bhengra received a Memo No. 3831, dated 26th November, 2004 whereby he was asked as to why he be not dismissed from service. It was informed that as per advertisement, a candidate should have been in between 19-40 years of age as on 1st January, 2003 and when he applied, he was found to be less than 19 years of age. It was alleged that the petitioner Cosmas Bhengra had given wrong information which shows his doubtful conduct and for that whey he be not dismissed being ineligible for appointment. Petitioner Cosmas Bhengra thereafter filed show cause reply and submitted that he was about 19 years of age i.e. three days less than 19 years as on 1st January, 2003 and thought that his age will be relaxed having attained 19 years of age of the time of application. Thereafter, without any departmental enquiry or charge-sheet, without appointment of any Enquiry Officer and without any enquiry, petitioner (Cosmas Bhengra) was removed from service as a measure of punishment in terms of Rules 49 and 55 of the Civil Services Rules by impugned Memo No. 4808 dated 29th December, 2004 from a retrospective effect i.e. w.e.f. 26th December, 2004 itself.
9. So far as petitioner Reena Kumari is concerned, she also received a show cause notice after return from training. She was noticed vide Memo No. 3800 dated 24th November, 2004 and was asked to show cause as to why she be not dismissed from service. It was alleged that though she was found successful in the physical test, but she failed in the reading and writing test. It was alleged that she through somebody else, got it over-written in the answer book and the word ‘Fail’ was changed into ‘Pass’ which was completely illegal and thereby as to why she be not dismissed from service. This petitioner Reena Kumari by her show cause reply dated 12th December, 2004 denied the allegation and submitted that she having been declared successful in the written test by the Selection Board she was appointed. Thereafter without issuance of any charge-sheet, without appointment of any Enquiry Officer, without any departmental enquiry, she was removed from service as a measure of punishment vide Memo No. 4810 dated 29th December, 2004 from a retrospective dated i.e. w.e.f. 26th December, 2004.
10. The respondents in their counter affidavit have not disputed the fact that no departmental proceeding was initiated against the petitioners and without any such proceeding they were removed from service. It was accepted that no charge-sheet was served as per Rule 55 of the Civil Services Rules.
11. While the facts, as narrated above, have been reiterated, it is pleased that the respondents have right to remove the petitioners from service as per Rule 668 (KA) of the Bihar Police Manual.
12. From the plain reading of Rules 668 and 668 (KA) of the Bihar Police Manual, it will be evident that the same relates to removal of those who have been appointed and are on probation. Under Rule 668 (KA), the competent authority has right to remove a person without any notice if service is found unsatisfactory during the period of probation.
The aforesaid rule is not applicable in the case of the petitioners herein, as they have not been removed from service on the ground of unsatisfactory service, while on probation. The orders of removal both dated 29th December, 2004 suggest that the orders have been passed under Rule 49 read with Rule 55 of the Civil Services Rules and thereby they are penal, in nature. Such orders of removal of service having been passed without initiation of a departmental proceeding as per Rule 55 of Civil Services Rules, no charge having framed against the petitioner, no Enquiry Officer having been appointed, no enquiry having been conducted after notice to the petitioners and the orders of removal having issued from retrospective date, such orders cannot be upheld.
13. Accordingly, the orders, as contained in Memo No. 4808 dated 29th December, 2004; so far as it relates to Cosmas Bhengra, and Memo No. 4810 dated 29th December, 2004, so far as It relates to Reena Kumari, are set aside.
14. So far as Cosmas Bhengra is concerned, admittedly, he was more than 19 years of age at the time of advertisement (15th August, 2003). He was merely three days less than 19 years, as on the cut-off date i.e. 1st January, 2003, a cut-off date which was fixed from a retrospective date.
Admittedly, he applied along with others, came out successful both in physical and written tests and after recommendation of the Selection Board and having competed along with others, was appointed to the post of Constable. He also came out successful in the Police Training to which he had gone after his appointment.
15. The respondent State have framed a statutory rule under proviso to Article 309 vide No. 111/R-2010/55A-11505 dated 28th November, 1956 commonly known as ‘Relaxation Rule’. Under such Rule, it is always open to the competent authority to relax any condition of service in regard to any individual and a class of person. As the petitioner Cosmas Bhengra was more than 19 years of age as on the date of advertisement, he was more than 19 years on the date he applied for appointment, as admittedly, he came out successful in both physical and written tests and competed and so recommended for appointment and as admittedly, he had not made any mis-representation as accepted in the impugned order dated 29th December, 2004, his case was a fit case for relaxation of age by the competent authority, as he was merely three days less than 19 years of age as on 1st January, 2003. Further, even if it is accepted that this petitioner was under age as on 1st January, 2003, he having attained the age of 19 years after three days, irregularity if any stood regularized by the time of application.
16. For the said reason, this Court is not remitting his (Cosmas Bhengra) case to the respondents nor giving any liberty to reopen the issue relating to legality of appointment of Cosmas Bhengra. He, accordingly, stands reinstated to the post with full back wages, his order of removal having been set aside by this Court, as ordered above.
17. So far as petitioner Reena Kumari is concerned, she also stands reinstated with full back wages, her order of removal having been set aside, but her case is remitted with liberty to the respondents to determine whether she was declared ‘Pass’ in the ‘Hindi reading and writing test’. It will appropriate if the evidence of the examiner is taken who put his signature on the answer book and gave his opinion as ‘Fail’/or ‘Pass’. If by mistake, she was declared ‘Fail’, but having found ‘Pass’, the examiner created mistake by over-writing ‘Fail’ as ‘Pass’, in such case, the petitioner Reena Kumari will get the benefit and will be treated to have been passed in the Hindi reading and writing test’.
18. A decision in this respect be taken only after initiation of a departmental proceeding, after notice and hearing the petitioner Reena Kumari.
19. Both the writ petitions are allowed with aforesaid observations and directions. However, in the facts and cir cumstances, there shall be no order, as to costs..
