Barin Ghosh, C.J. -
(1.) There has been 153 days delay in preferring this Appeal. An Application (CLMA No. 12844 of 2013) for condonation of delay has been filed. That is not being objected by the respondents. We have independently considered the averments made in the Application for condonation of delay and, being satisfied with the sufficiency of the reasons furnished, allow the Application.
(2.) The facts, to which there appears to be no dispute, are that the appellant was a Home Guard. While he was working as a Home Guard, an advertisement was published for recruitment of Constables, whereby and under, it was held out that some of the advertised vacancies are available exclusively for people serving as Home Guard. Appellant responded to the said advertisement and held out that he being a Home Guard, his response be treated for the posts available for Home Guards. Appellant was selected and appointed as a Constable. While the appellant was working as a Constable, an advertisement was published for recruitment of Sub-Inspectors. In that advertisement also, it was held out that some of the vacancies advertised are to be filled up by Home Guards. Appellant responded to the said advertisement. His response was through proper channel. In the response, appellant held out that he is a Home Guard and, accordingly, prayed for consideration of his response for supplying those vacancies available for Home Guards. Appellant was selected, whereupon he resigned from the post of constable and, thereafter, was sent for training. While on training, it transpired that, at the time when the appellant had applied for the post of Sub-Inspector, he was a constable and not a Home Guard and, accordingly, his appointment as Sub-Inspector was cancelled. Appellant approached this Court by filing a writ petition challenging cancellation of his appointment as Sub-Inspector and succeeded only on the ground that cancellation was effected without giving an opportunity of hearing to him. Appellant was, accordingly, reinstated, but, soon thereafter, he was suspended and a departmental inquiry proceeding was initiated against him. That departmental inquiry proceeding was concluded by issuing an order of termination. Having had lost in the Appeal and the revision, appellant approached this Court by filing a writ petition challenging the said disciplinary order. By the judgment and order under Appeal, the learned Single Judge has held that, at the time when the appellant had responded to the advertisement for the posts of Sub-Inspectors, he was not a Home Guard, but was a Constable and, accordingly, he was not entitled to the benefit of the said response. Learned Judge found, as a fact, which fact is not in dispute, that the said response was made by the appellant through proper channel, where it was indicated that the appellant is a Home Guard and that was not verified by the Authority, who forwarded the response of the appellant. It was, therefore, held that there was a mutual mistake and, accordingly, appellant should not be made to suffer alone. Learned Judge, therefore, directed the respondents to take back the appellant on the post of Constable, with a direction that the period when the appellant had resigned from the post of Constable and the period when he will be taken back in service as Constable shall be treated as continuation in service. Learned Judge felt that the said period shall be treated under suspension and apart from subsistence allowance, no other monetary benefit shall be given to the appellant.
(3.) We feel that there is hardly any scope of interference as the conclusion of the learned Judge that the appellant was not a Home Guard at the time of responding to the advertisement for the posts of Sub-Inspector is not interfere able. However, we feel that, having had served as a Home Guard originally, when the appellant held out that he is a Home Guard in his response to the advertisement for the posts of Sub-Inspector, appellant did not make any misrepresentation. The fact is that the appellant was a Home Guard at one point of time. The fact is that the appellant made the response through proper channel, inasmuch as, he was then a Constable. The Authority, who forwarded that response, if had been little cautious, could avoid the happening of the situation through which the appellant passed through. At the same time, the Authority, who received the response, if had been little more cautious, appellant would not have had gone through what he had gone through. The fact remains that despite being selected for the post of Sub-Inspector, appellant has been declared to be entitled to only the post of Constable. There being no dispute that there was a mutual mistake, appellant alone cannot be made to suffer. We, accordingly, interfere with only that part of the order, by which it has been held out that for the period between resignation and taking back of the appellant in service, appellant will be entitled to only subsistence allowance and nothing more. We direct payment of regular salary for that period and conclude the matter. The Appeal is, accordingly, disposed of.;