Pratap Kumar Ray, J. - (1.) HEARD the learned Advocates appearing for the parties.
(2.) ASSAILING the order dated 28th April, 2009 passed in O.A. No. 609 of 2009 by the West Bengal Administrative Tribunal, this application has been filed. By the impugned order, the learned Tribunal rejected the writ application whereby and whereunder the applicant has prayed for consideration of his application as was pending, seeking alternative job, in terms of the direction given by the Inspector General of Police (A), West Bengal communicating it under Memo No. 1095/RO dated 1st November, 2008 to the applicant. The memo dated 1st November, 2008 reads such - Memo No. 1870 SPL/EMP/SPL/EMP -81/07 dt. 15.09.08 of West Bengal Police Directorate Writers' Buildings, Kolkata -1 To The Superintendent of Police, Nadia. Sub: Employment under Exempted category in terms of Labour Deptt's Notification No. 30 EMP dt. 2.4.2008. Ref: Your memo No. 894/RO dt. 31.8.08. As per physical measurement of the candidate in respect Jiaur Rahaman, S/o. Lt. C/498 Md. Moniruddin S.K. the chest expansion is 2 (two) CMs. Which is not permissible as per G.O. No. 225 PL dt. 07.01.1992 for the post of Constable. The candidate also failed in physical efficiency tests. So, the candidate is not eligible for appointment as Constable under exempted category. The candidate may be applied for other eligible post. Candidate may also be suitable informed. Sd/ - A.K. GuptaInspr. Genl. of Police (A)West Bengal. Memo No. 1095/R.O. dt. 01.11.08. Copy to: Jiaur Rahaman, S/O. Lt. C/498 Md. Moniruddin Sk. of Vill. Gholla, P.O. Milki, P.S. Rejinagar, Dist. Murshidabad, West Bengal, for information....
(3.) IT appears from the memo that the financial crisis of the family due to death of petitioner's father has been considered as genuine despite the fact that the mother of the petitioner was getting family pension to the tune of Rs. 4,312/ - per month and terminal benefits also were released in favour of the family. The rejection of application seeking appointment under exempted category as filed by the writ petitioner/applicant was not on the ground that the family had no financial crisis due to death of sole bread earner as the widow was receiving family pension and received terminal benefits due to death of the employee. But the rejection of the application was on the ground that the applicant failed in physical efficiency test for the post of Constable for which he applied. It appears from the said memo further that Inspector General of Police (A), West Bengal advised the petitioner/applicant to apply for other eligible post. Hence, it appears, that the concerned respondent authorities in terms of the circular letter for appointment of a candidate under exempted category never refused the applicant on the ground that the family had no economic crisis. But before the Tribunal when the application for other job is pending as per direction of the authority, the respondent authorities urged different point that the family had no financial crisis by referring the monthly family pension as was being received by the widow of the deceased family and the terminal benefits as already released. It is a settled way proposition of law that the administrative body in the form of an affidavit cannot take any new ground in the litigation stage until and unless that point was specifically taken in their impugned decision. Reliance may be placed to the judgment passed in the case Mohinder Singh Gill v. Chief Election Commissioner, reported in, AIR 1978 SC 857, a judgment of Constitution Bench which has been followed in the case S. AT. Chandra Sekher & Anr. v State of Karnataka, reported in : 2006 3 SCC 208. Mohinder Singh Gill (supra) was followed in the case Chandra Singh & Ors. v. State of Raj as than & Anr. reported in, (2003) 6 SCC 544. The same view has been reiterated in the case Bangalore Development Authority v. R. Hanumaialx reported in : (2005) 12 SCC 508.;