- (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 : "you have been provisionally selected for appointment as a sergeant in the Calcutta Police. If you are appointed to the post, then you have to undergo the prescribed course of training in the Police Training College, Barrackpore, 24-Parganas, for a period of one year. During the period of training you will be subject to the disciplinary control of the D. I. G. , Training, Police Training College, Barrackpore. After you successfully complete the course of training at the Police Training College, you will have to undergo further course of practical training in Police work in different units of the Calcutta Police for a period of one year. If you fail to make suitable progress during your training period at the Police Training College or in the Calcutta Police, you will be liable to be discharged from service at any time during the training period. 2. During the period of training in the Police Training College, you will draw a pay of Rs. 200/- plus admissible dearness allowance per month, from the date of joining the Police Training College, Barrackpore. 3. No traveling allowance will be allowed to you for the journey to join your post. 4. If you will to resign from the service within 3 (three) years from the date of your joining the training, then you will be required to refund to Government the cost of your training. 5. If you are finally appointed to the post, then you will be required to report your arrival to the D. I. G. , Training, Police Training College, Barrackpore on the forenoon of 1. 7. 70 where you will have to undergo the requisite course of training. Your appointment in that case will take effect from the date of your reporting your arrival to the D. I. G. Training, Police Training College. 6. You are requested to report by 22. 6. 70 at 11 a. m. in writing to this office if you are willing to accept the service on the conditions outlined above. In case your reply is not received by the date mentioned above, this offer of appointment will be treated as cancelled. " By a letter dated 27th June, 1970, issued by the Deputy Commissioner of Police, Head Quarters, Calcutta, the petitioner was directed to report at the Police Training College, Barrackpore on the 1st July, 1970. The petitioner joined the Police Training College at Barrackpore and spent one year there. After completion of the training at the said Police Training College the petitioner sat for the final examination held by the Police Training College at Barrackpore on the 31st May, 1971. On the 27th June, 1971, the result of the said final examination was published and the petitioner was placed second in the list of the successful candidates in order of merit, according to the petitioner. This, however, is not admitted by the respondents. It is contended that more than two candidates had secured better position than the petitioner. On the 28th June, 1971, the petitioner appeared before the Deputy Inspector General of Police (Training ). On the 9th July, 1971, the petitioner received an intimation whereby the: petitioner was directed to deposit the government kits and further it appeared that the petitioner was discharged as unsuitable with effect from the 8th July, 1971. The order was published being order No. 684 dated 9th July, 1971, wherein it was stated that certain cadet-sergeants in the Calcutta Police who were undergoing training at the Training College, Barrackpore, were being discharged from the Force with effect from 8th July, 1971, as unsuitable and against item No. 4 in the list appeared the name of sergeant 228 Siladitya De, the petitioner. The petitioner challenges the said order in this application under Article 226 of the Constitution.
(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 : "cadet No. 228 Siladitya Dey passed in all the subjects excepting some subjects for Gr. 'b' as noted against his name. During his stay at P. T. C. for one year he was on rest and light duty for 78 days, was in hospital for 23 days and was on Medical leave for 24 days. A detailed report in this respect is attached which will show that 2 warnings were issued to him. In spite of the fact that he has passed in all the subjects the board considered him as unfit in a disciplined department and a most unsuitable officer and recommends that he may be discharged for the greater interest of discipline. " A report describing mis-conduct of the petitioner had also been annexed. It was stated therein that he joined the Police Force and remained in hospital for 23 days, on rest and light duty for 78 days, on medical leave for 24 days, C. L. for 10 days and overstayed leave for 10 days. It was found that out of 254 working days the petitioner absented himself from training for 137 days. The petitioner's delinquent behaviour was detected on 29 occasions. He was frequently absenting himself from roll calls from barrack and hospital where he was admitted. It was further stated that he had deserted from Police Training College without any leave, permission or intimation on the 16th June, 1971 and returned on the 20th June, 1971. It has been further stated that on several occasions he remained absent without any proper excuse. It was stated that he abused his H. C. on the 30th August, 1970 and attempted to assault him. His progress in the mental training was also poor. It was stated that he was found malingering, disobedient, rough, ill-behaved and highly in disciplined.
(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 : "6. Sergeants : (1) Method of recruitment : (i) Vacancies shall be filled once a year in the month of January. Applications from candidates shall be invited through the Press in the month of July. All applications shall be made by the candidates in their own handwriting to the Deputy Commissioner, Headquarters, in forms to be obtained from the office of the Commissioner on production of satisfactory proof as to educational qualifications. If the candidates be serving in the Army, their applications must be sent through the Commanding Officer of their Unit. The applications shall each be accompanied with a Postal Order or a Receipted Treasury Challan for Rs. 5 only deposited under the appropriate head and with attested copies of testimonials and certificates in respect of character and educational qualifications. (ii) No notice shall be taken of applications submitted at other times of the year and they shall not be registered. (2) Applications from persons serving in the Army shall not ordinarily be considered unless the applicants have only two months to serve in the Army. (3) Sergeants on recruitment shall be enlisted in the first instance for the Foot Police and may subsequently be transferred, if suitable, to the Mounted Branch. (4) Qualifications : candidates shall- (i) be citizens of India, (ii) be single, (iii) be between 19 and 23 years of age on the 2nd January of the year of recruitment, (iv) be at least 5 feet 7 inches in height and have a chest measurement of at least 34 inches after exhalation. (v) in the case of Army candidates, hold a second class Army Educational Certificate, and in the case of others a certificate of having passed the Higher Secondary Examination or its equivalent or the Indian School Leaving Certificate Examination, and (vi) possess a thorough knowledge of Bengali language. (5) Candidates shall have to qualify in a written test in Essay writing in English and General Knowledge and thereafter the successful candidates shall have to appear for an interview before a Selection Board consisting of the Deputy Commissioner, Headquarters, and two other Deputy Commissioners nominated by the Commissioner. (6) Appointment shall be made of candidates included in approved list of candidates prepared on the recommendation of the aforesaid. Selection Board. After appointment, Sergeants shall remain on probation prior to confirmation. (7) Selected candidates shall have to be declared medically fit by the Police Surgeon, Calcutta, and their character and antecedents shall be verified before their final appointments are made. (8) Selected candidates shall have to undergo a course of training for one year in the Police Training College. On passing out of the College, they shall receive a further course of practical training for another year in different branches of the Calcutta Police as prescribed by the Commissioner. " It would be also necessary to refer to Rule 47 of Chapter XV of the said Rule which is in the following terms : "47. Sergeants : (1) A Sergeant shall remain on probation for two years exclusive of the period during which he may be under training at the Police Training College. No leave other than casual leave or earned leave as admissible under the normal rules shall count towards the period of probation. (2) The Deputy Commissioner, Headquarters, may confirm a probationer Sergeant on the completion of the period of his probation. He may, for reasons to be recorded in writing, make an order extending the period of probation or discharging him from service. Where such an extension of the period of probation is ordered, such period of extension shall not exceed one year. For further extension, if needed, sanction of Government shall be obtained. (3) The normal period of training and probation of a Sergeant shall count towards increment of pay. Any extended period of probation shall not count towards increment unless and until the Officer is confirmed. An Officer will draw as from the date of effect of his confirmation, the pay he would have drawn had he been confirmed on the expiry of the prescribed period of probation. ";