Bandana Bayan vs State of West Bengal

A.M. Sinha, J.—This appeal is directed against the judgment and order passed by the learned Single Judge in CO. No. 5781(W) of 1990 arising out of a writ application filed by the Appellants writ Petitioners challenging the selection and appointment to the post of Lower Division Clerks in the office, of the Settlement Officer, now designated as District Land and Land Reforms Officer. The short facts of this case are that the District Land and Land Reforms Officer, Purulia, sent a requisition for sending the names (sic) suitable candidates from the Purulia Employment Exchange for appointment in the vacancies of 194 Lower Division Clerks in his office. The Employment Exchange. Officer after sorting out the applications and after holding typing test, sent the names of about 1700 candidates including the Petitioners. The fifty writ Petitioners along with other candidates sat for the written test in the subjects, namely, English, Bengali, General Knowledge and Elementary Mathematics, each having maximum marks of 20 making the total marks 80. After such written test a panel of S17 candidates was prepared and the names of the writ Petitioners appeared in. the top of such panel. Such list was published on December 24, 1989. On December 29, 1989, they were asked by the authority concerned in writing to appear for typing test which was scheduled to be held on January 16, 17 and 18, 1990. It is contended by the writ Petitioners that after their empanelment following the result of written test, the call of the authority concerned to appear in the typing test was illegal, arbitrary and mala fide. It is the case of the Petitioner that in the typing test, they were required to type 30 words on the average in a minute. Thereafter, on March 12, 1990, a list of successful candidates was allegedly published by the authority concerned. The Petitioners were surprised to know that although they were successful In the written test their names were not found in such panel. On their protest the panel was kept in abeyance and no appointment was made. As they apprehended that the appointment may be made on revocation of the order of abeyance of the panel in time they moved the High Court in writ jurisdiction for a writ of mandamus directing the authorities to make appointment of the writ Petitioners to the post of Lower Division Clerks from the panel published after the written test and also for other relief�s They also prayed for interim order restraining the Respondents authorities from giving any appointment.

Their further contention is that the typing test for the selection of the candidates in the posts of Lower Division Clerks or Assistants could not be mandatory as they already passed the first typing test conducted by the Employment Exchange which sponsored them for the written test for the purpose of selection. According to them, the second typing test was illegal and arbitrary. The letter issued by the authorities concerned for the purpose of written test to the writ Petitioners (Annexure B) dated December 2, 1989, it is stated, did not contain any direction for appearance in typing test although they were informed that for the purpose of selection they were to appear on written test on the subjects mentioned. The Petitioners secured more than 60 on average out of total marks of 80 and after the publication of panel of successful candidates in the written test, they expected that they would be appointed to the post according to available vacancies in order of merits. The authorities concerned, however, issued another letter (Annexure C) dated December 29, 1989, intimating that they had been selected for typing test on the basis of written test held on December 24, 1989. According to them this letter had no legal basis and was motivated only to frustrate their claim for appointment.

The Respondent, State of West Bengal, and the District Land and Land Reforms Officer, Purulia, in their joint affidavit-in-opposition denied the allegations of the writ Petitioners on material particulars and contended that for selection of lower Division Assistants, the Type Test (at a speed of 30 words per minute) was an essential qualification according to the rules contained in The West Bengal Board''s Miscellaneous Rules, 1955. It was further disclosed that no panel was prepared in order of merit after written test and that only after the type test, the list of successful candidates were prepared and published and that out of 50 candidates only 11 candidates obtained 60 % marks in the written test and that they could not qualify in the typing test. The list was published in order of merit after taking the overall performance of the candidates in the written and typing test. On the objection of the unsuccessful candidates, the list was kept in abeyance. Ultimately, result was published, and letters were sent to successful candidates for their medical examination.

In the affidavit-in-reply the Petitioners contended that according to Rule 10 of The Regulation of Recruitment to the clerical services of the Secretariat and certain other offices of the Government of West Bengal, 1954, which guides and controls the selection and appointment of the candidates in the posts of Lower Division Clerks, no typing test is required for the purpose of selection of the candidates in the post The holding of typing test after the selection in the written test, it is further contended, is arbitrary and is not warranted by any rules.

Three sets of successful candidates after being qualified in the written and in the typing test have been added as parties to the proceedings. They support the contention of the Respondents Nos. 1 and 2, the State of West Bengal and the District Land and Land Reforms Officer. According to them f. 65 of The West Bengal Board of Revenue Miscellaneous Rules 1955, provides for holding of typing test along with written Best for the purpose of selecting a candidate for appointment to the post of Lower Division Clerk.

The learned trial Judge on consideration of the respective contentions of the parties and the rules for the regulations of the recruitment to Clerical Services of the Secretariat and certain other offices of the Government of West Bengal 1954, which was prepared under Article 309 of the Constitution of India and Rule 65 of The Board of Revenue Miscellaneous Rules of 1955 held that the typing test conducted by the authority concerned for the purpose of recruitment along with written test was not illegal inasmuch as Rule 65 of the Board of Revenue Miscellaneous Rules, 1955; provides for such typing test and such rule guides and controls the recruitment of the Lower Divisions Assistants in the offices of the District Authorities concerned. But the learned trial Judge found that as the writ Petitioners had grievances as to the manner of typing test, and directed the district authority to scrutinize the result and to be satisfied as to the propriety of the typing test within 15 days of the passing of the, order. He further directed that if the authorities concerned were satisfied they would process the appointment of successful candidates. In case, the authorities concerned held that the typing test Was not held properly they should arrange for a fresh typing test of the qualified candidates and finally appoint the successful candidates taking into consideration their overall performance in the written test and the typing test: Being aggrieved by and dissatisfied with such judgment and order, the writ Petitioners have come up in appeal.

The short point in this appeal is with regard to the question of applicability of the rules for the purpose of recruitment to the clerical services in the offices of the District Land and Law Reforms Officer The contention of the Government of West Bengal and the authority concerned which has been supported by the added Respondents, the successful candidates, is that The West Bengal Board Miscellaneous Rules, 1955, will regulate, guide and control the recruitment to the clerical services in the concerned department. The preface although indicates that the rule has been revised or the basis of certain changes and also other constitutional changes, it does nowhere indicate that rules were prepared in terms of Article 309 of the Constitution.

Mrs. Manjuri Gupta, the learned Advocate representing the Respondents, has urged that though this Rule 65 of The West Bengal Board''s Miscellaneous Rules, 1955, is not under Article 309 of the Constitution, it may be treated as administrative rules or executive instructions and the recruitment done according to such rule could not be treated as illegal and invalid. She has referred to a decision B.N. Nagarajan and Others Vs. State of Mysore and Others, in support of her argument.

Mr. Kashi Kanta Moitra, the learned Advocate representing the Appellants-writ Petitioners, has, on the other hand, urged that the problem is not so simple as suggested by Mrs. Gupta. He has referred to rules for Regulation of Recruitment to Clerical Services of the Secretariat and certain other offices of the Government of West Bengal, 1954. These rules were framed in terms of powers conferred by proviso to Article 309 of the Constitution of India He has drawn our attention to Rules 7 and 14 which prescribes the papers in which the candidate is to appear and the minimum of the marks he has to obtain for being successful. This syllabus of examination does not provide for any such typing test He has further drawn our attention to the West Bengal Services (Secretariat Common Cadre) Rules, 1984. Rule 2 of these Rules lays down that the Rules will apply to all Government employees holding pests in the Secretariat Department and offices mentioned in the schedule to the Rules. Rule 4 of these Rules provides for constitution of separate cadres for the Lower Division Assistants (Clerks), Typists Upper Division Assistants and Typists Graded and so on. Rule 7 provides for recruitment of persons to different categories of services Item v. refers to recruitment of tower Division Assistants, which according to these Rules, should be done in terms of Finance Department Notification No. 2083-F dated July 21, 1954. Mr. Moitra has already referred to these notified Rules which we have discussed before this West Bengal (Secretariat Common Cadre) Rules, 1984, it is urged, was already given effect to before the examination held by the District Land and Land Reforms Officer for the post of Lower Division Clerks in the district. Rule 7 of these Rules indicates that it will take effect notwithstanding anything Contained in other Rules for the time being in force. Rule 9 lays down that the provisions of any other Rules notifications and order in so far--as they are repugnant to matters covered by these Rules shall be deemed to have been repealed. The schedule to this Rule, it will appear, includes the offices under the Board of Revenue, West Bengal Next, Mr. Moitra has drawn our attention to the West Bengal Services Rules, Part--I, corrected upto 1971 which was framed in terms of the powers conferred by proviso to Article 309. Rule 4 of these Rules provides for repeal and saving. It says that all Rules, orders or notifications corresponding to these Rules in force immediately before the commencement of these Rules and applicable to Government servants to whom these rules apply are hereby repealed. Rule 5(8) of these Rules defines clerical staff as those Government servants in Class III services whose duties are entirely clerical arid includes any other class of Government servants specially defined as such by the orders of the Government, It is mentioned in the note under the Rule that classifications of the Government servants in terms of this Rule 5(8) have been given in Append 2. It will appear from Item No. 6 of this Append. 5 that the typist an clerk-typists are placed in separate categories as members of the clerical staff.

The cumulative effect of Mr. Moitra''s argument may shortly be stated thus The impugned examination was held on December 24, 1989, i.e. long after the coming into the effect of the West Bengal Services (Secretariat Common Cadre) Rules, 1984, which applies to offices under Board of Revenue as mentioned in the schedule. The earlier rules of recruitment according to Rule 9 of these Rules stood already repealed. As Rule 7 of these Rules for recruitment of'' Lower Division Assistants enjoins that the notified Rules (2083F) dated July 21, 1954, is to be followed and as such. rule does not provide for typing test as essential qualification for the purpose of recruitment of Lower Division Clerks or Assistants, writ Petitioners could not be declared, disqualified or unfit for the appointment in that post of Lower Division Clerks on account of their failure to pass the typing test after being successful in the written test.

Mrs. Manjuri Gupta in her reply has tried to make out the case that the post of Lower Division Assistants sought to be recruited in that office of the District Land and Land Reforms Officer does not come under the heading Offices of Board of Revenue West Bengal, contained in schedule to Rule because the West Bengal Board Miscellaneous Rules, 1955, on which she very much relied in this case in its Rule 6 clearly indicates that Director of Land Records and Surveys is under the administrative control of the Board of Revenue: it is not disputed by her that the office of the District Land and Laad Reforms Officer came under the hierarchal control of the Director of Land Records and Survey which again is under the control of the Board of Revenue. Therefore, the post of Lower Division Assistants or Clerks, in our view cane under the heading Offices contained in schedule to Rule 4 of the West Bengal Services (Secretariat Common Cadre Rules, 1984. Item No. 1 of that schedule under the heading Offices is the Board of Revenue, West Bengal So, with the coming into force of this West Bengal Services (Secretariat Common Cadre) Rules, 1984, which repeals all previous rules and notifications will govern the recruitment of the Lower Division Assistants or Clerks to the office of the District Land and Land Reforms Officer. Accordingly, Rule 65 which provides for typing test along with other test cannot be invoked for the purpose of selection of candidates for the post of Lower Division Assistants or Clerks in the proposed office. The subsequent rules, namely notified Rules of 1954 and the Rules of West Bengal Services Rules, 1984 would prevail over the Board''s Miscellaneous Rules, 1955. According to the rules of interpretation of statutes, where an Act is repealed any delegated legislation made under the Act falls to the ground with the statutes unless it is expressly preserved. Where the subordinate legislation is continuing force however the general rule is that its scope and construction are determined according to repealed Act under which it was made.

Maxwell on the Interpretation of Statutes 12th Ed., p. 18. There is nothing in the 1984 Rules, specially in Rule 9 which provides for repeal and savings that the Board Miscellaneous Rules would be applied and would regulate, control and guide the system of recruitment of Lower Division Assistants in that offices under the Board of Revenue as before. As a corollary to this Rule construction of repeal and savings the rule of interpretation is that the application of the statutes is always deemed to be prospective unless otherwise intended by statute itself.

It will appear from the examination of the relevant rules that neither Rule 65 of the Board''s Miscellaneous Rules, 1955 nor the West Bengal Services (Secretariat Common Cadre) Rules, 1984 and the Regulation of recruitment, to clerical service of the secretariat and certain other offices of the West Bengal Government, 1954 was followed by the authority, concerned in the present case. We have already stated that with the enactment of the West Bengal Services (Secretariat Common Cadre) Rules, 1984, other rules regarding recruitment ceased to have any effect having been repealed by this enactment. The authority concerned followed Rule 65 of the Board''s Miscellaneous Rule, 1955, in part as it held the prescribed test in English, Bengali, General Knowledge etc. But they did not hold the typing test as enjoined in the Rule along with other test at the same time.

The letter, prescribing for the test to the candidates sent by the Employment Exchange (Annexure B), on the other hand, did not give an'' inkling of holding a typing test. Annexure C, another letter, which was issued by the authorities concerned after about three weeks, i.e. on December 29, 1989 opened with the words that the candidates had been selected for the ''type test was on the basis of written test held on December 21, 1989. Rule 65 nowhere provides that the candidates will be placed for typing test only after being selected in the written test. The Rule, on the other hand, indicates that the examination will be held in other papers which includes Bengali, English, General Knowledge and Intelligence along with type-writing which will be for half an hour requiring the candidates to type 30 words per minute. Annexure A at p. 79A and B of the Paper Book containing the affidavit-in-opposition discloses the requirements of the department for sponsoring the name for lower division clerks. It appears from p. 9B that the essential qualification for lower. division clerk post was that the candidates should be passed School Final or its equivalent The department put in the desirable category of qualification that the candidates must have the knowledge, of English typing, With mini mum speed of 30 words per minute and such typing, is not essential for the, physically handicapped persona. So, according to the department, the knowledge of English typing was not an essential) qualification Had they made it an essential qualification, they should have indicated in the letter inviting the candidates sponsored by the Employment Exchange mat they must sit for the typing test. In the absence of this express condition conveyed to the candidates and. in the absence of express conditions that the candidates would be required to qualify at first in the written, test and then they would be called for typing test, before final selection, the actions of the authority in discarding the claim of the successful candidates in the written test only on their failure to qualify in the type-writing test should be termed as unreasonable and arbitrary and cannot be supported in law.

Further, the, rules to which we have already referred clearly indicate that the Government itself has classified the lower division clerks in Append 2 of the West Bengal Services Rules, 1971 (Part. 1) (vide note 1 below Rule 5(8), as Lower, Division Clerks, second third and fourth Grade Clerks and the Junior Clerks and the like and also the typist and typist-clerk. It may be also stated that Rule 4 of the 1984 Rules also placed the Lower Division Assistants and Typists in separate category. Therefore, clubbing of other test along with typing test should be held arbitrary The classification in rules of recruitment or appointment is permissible, but it has been held by the Supreme Court in J. Pandurangarao v. Andhra Pradesh Public Service Commission AIR S.C. 268 that it must be found on an intelligent differentia which distinguishes persons or things grouped together from others left out of group. It lays down that differentia in question must have reasonable relation to the object sought to be achieved by the rules or statutory provisions in question. There may be various consideration for the classification But it has been laid down that in every case there must be some nexus between the basis of the classification and the object intended to be achieved by the statute In the present case, the State Government and its department concerned themselves made the classification as Lower Division Clerks, Typist and Typist-Clerk. A person may work as lower division assistant even without knowledge of typing Typing is a technical knowledge and has got to be acquired by practice. If such knowledge has been made an essential qualification for the purpose of recruitment or appointment to any post it must be spoken out clearly in the advertisements or notices for such recruitment debarring the candidates from applying for such post without having the knowledge in typewriting. There must be compulsiveness as to qualification of type-writing if ''the department seriously wanted that the Lower Division Clerks must possess the knowledge of typing before they could apply for such post. In our view, the learned Single Judge has not dealt with this aspect of the problem which had gone against the writ. Petitioner and deprived them of their rightful claim for appointment to the post of Lower Division Clerks in the department concerned. So the judgment and order of the learned Single Judge should be set aside. The appeal should be allowed;

The Respondents, the State of West Bengal and the District Land and Land Reforms officer, should therefore, on the basis of, written test select the candidates in order of merits seeking the highest marks for the post of available Lower Division Assistants but the candidates who in addition to written test have qualified themselves in the typing test also should not be thrown out of appointment if already given.

It is made clear that the performance of the typing test will be taken into consideration after consideration of the position of the candidates in the writ-ten test in order of merit. The order to be complied within two months of the date of the orders.

Bhagabati Prasad Banerjee, J.

I agree.

Appeal allowed

After the judgment was delivered a prayer Was made by the learned Advocate appearing for the Respondents for granting a leave to prefer a SLP before the Supreme Court under Article 133(1) of the Constitution of India.

In order to grant such leave this Court has to satisfy that substantial question of law involved in the case and of general importance and in the opinion of this Court the said question is to be decided by the Supreme Court. In our view, in this particular case there is no such point of substantial question of law involved.

Accordingly the oral prayer for leave to prefer a SLP to the Supreme Court is refused.

Let a Xerox copy of the above order-judgment be given to the parties on the usual undertaking.