Calcutta High Court (Appellete Side)
Matar Chandra Mahato vs The State Of West Bengal & Ors on 2 August, 2011
Author: Biswanath Somadder
Bench: Biswanath Somadder
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.2011.
&
.2011.
p.b.
W.P. No.16036 (W) of 2010.
Matar Chandra Mahato
Vs.
The State of West Bengal & Ors.
Mr. Lalit Mohan Mahata,
Mr. Manoranjan Mahata.
.....For the Petitioner.
Mr. Jayanta Mitra.
....For the Council.
Mr. Balai Chandra Ray, Senior Advocate,
(represented the State as
the Advocate General),
Mr. Tapabrata Chakraborty,
Mr. Abhijit Basu,
Mr. Pinaki Dhole.
....For the State.
Mr. Asok De, Sr. Adv.,
....Amicus Curiae.
This writ petition and a few other similar petitions have been moved
primarily on the issue as to whether an ex-personnel of the Border Security Force
could qualify as an ex-serviceman of the Armed Forces of the Union for the
purpose of being eligible to participate in the recruitment process initiated by the
District Primary School Council, Purulia, for the post of assistant primary school
teachers under the category of an 'ex-serviceman'.
The genesis of the instant matter arises at a point of time when the writ
petitioner - who had retired from the Border Security Force on 30th April, 2009 -
decided to participate in the recruitment process initiated by the District Primary
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School Council, Purulia, pursuant to a public advertisement issued on 30th
August, 2009. The writ petitioner duly filled-up the requisite application form in
the prescribed format, describing himself as an ex-serviceman and applied for
participating in the selection process under that category. The concerned Council
considered him as an eligible candidate and allowed him to participate in the
written test examination and on being successful called him for an aptitude
test/oral interview. On 23rd June, 2010, the petitioner appeared before the
selection committee for the aptitude test/oral interview. Subsequently, when the
results were published on the internet, he was shown as not selected. On query,
the petitioner came to learn that all ex-personnel of the Border Security Force
were not considered for appointment on the ground that they did not belong to
the category of an 'ex-serviceman'. Challenging this action of non consideration of
his candidature in the category of an 'ex-serviceman', the writ petitioner filed the
instant writ petition, which has been heard at length for several days.
By an order dated 20th January, 2011, Mr. Ashok Dey, a Senior
Advocate of this Court, was appointed as an amicus curiae. Mr. Dey made
elaborate submission on the question of interpretation of the applicable laws as
well as the various clauses governing eligibility, as provided in the booklet
containing the application form and information brochure for candidates
participating in the recruitment process. Mr. Dey drew this Court's attention to
the definition of the word, 'ex-serviceman', which is contained under Clause 3(b)
of General Information, which forms part of the application form and information
brochure. The said clause is set out hereinbelow:-
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"Ex-Servicemen are those who have put not less than 6 months
continuous service in any rank (whether as a Combatant or as a Non-
Combatant) in the Armed Forces of the Union".
Mr. Dey, thereafter, drew this Court's attention to Section 4 of the
Border Security Force Act, 1968, which reads as follows:-
"Constitution of the Force.:- (1) There shall be an armed force
of the Union called the Border Security Force for ensuring the security of
the borders of India.
(2) Subject to the provisions of this Act, the Force shall be
constituted in such manner as may be prescribed and the conditions of
service of the members of the Force shall be such as may be prescribed."
He further submitted that neither the West Bengal Primary Education
Act, 1973 nor the West Bengal Primary Teachers' Recruitment Rules, 2001,
provides for any definition of the word, 'ex-serviceman'. He submitted that in
order to come to a correct conclusion, this Court is required to interpret the
expression 'ex-serviceman' in the context it has been sought to be described in
the application form and information brochure.
On behalf of the State, the learned Advocate General (as Mr. Balai
Chandra Ray, Senior Advocate, then was) had appeared and submitted that the
State objected to ex-personnel of the Border Security Force being described as ex-
servicemen. In this context, he relied on the Ex-Servicemen (Reservation of
Vacancies in the States Services and Posts Group C & Group D) Rules, 1982,
(hereinafter referred to as the 1982 Rules). He submitted that the 1982 Rules
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have been framed on the basis of power conferred under the proviso to Article
309 of the Constitution of India and the definition clause of the 1982 Rules
provides under Rule 2(a) the definition of "Armed Forces of the Union", which
means the Naval, Military or the Air Forces of the Union. He further submitted
that Rule 2(c) defines 'Ex-Servicemen' and the Border Security Force does not fall
within that definition. For convenience, Rule 2(c) of the 1982 Rules is reproduced
hereinbelow:-
"(C) "Ex-Servicemen" means a person who has served in any rank
(whether as a combatant or as a non-combatant) in the Armed Forces of
the Union, including the Armed Forces of the former Indian States but
excluding The Assam Rifles Defence Security Corps, General Reserve
Engineering Force, Lok Sahayak Sena and Territorial Army for a
continuous period of not less than six months after attestation, and
(i) has been released, otherwise than at his own request or by way of
dismissal or discharge on account of misconduct or inefficiency, or has
been transferred to the reserve pending such release, or
(ii) has to serve for not more than six months for completing the period
of service requisite for becoming entitled to be released or transferred to the
reserve as aforesaid, or
(iii) has been released at his own request, after completing five years'
service in the Armed Forces of the Union."
He further submitted that the 1982 Rules has excluded personnel of
the Border Security Force to be considered as 'ex-servicemen' and in such
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circumstances, the writ petitioner is not eligible to be considered as an 'ex-
serviceman' for the purpose of his participation in the selection process under
that category.
Upon considering the respective submissions, this Court is of the view
that it may not at all be necessary to embark on an elaborate exercise of
interpretation of statutes, in view of what is clear and apparent from the
conditions laid down in the application form and information brochure provided
to all those candidates who had participated in the selection process for
recruitment of assistant teachers for primary schools under the various District
Primary School Councils in West Bengal.
Clause 3(b) under General Information, which has already been
reproduced hereinabove, defines 'ex-servicemen' as those who have put not less
than six months continuous service in any rank (whether as a Combatant or as a
Non-Combatant) in the Armed Forces of the Union.
It is the admitted position that the petitioner is an ex-personnel of the
Border Security Force. The Border Security Force is a para-military service which
was statutorily recognised upon the Border Security Force Act, 1968, coming into
force. The Border Security Force was initially raised under the Central Police Act,
1949, when the Director-General of Border Security Force was set up in the
Ministry of Home Affairs under a senior police officer designated as the Director-
General of Border Security Force. The Force has been entrusted primarily with
the responsibility of ensuring the security of India's international border with
Pakistan and Bangladesh in order to create a sense of security among the people
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living in the border areas, and preventing trans-border crime, smuggling and
unauthorised entry into and exit from Indian territory. The Force was created
towards the end of 1965. Considering the nature and purpose of the Force and
the experience gained of its working, it was felt that the Force should be
regulated by a separate self-contained statute. For this purpose, the Border
Security Force Bill was introduced in the Parliament.
The preamble of the Border Security Force Act, 1968, reads as under:-
"An Act to provide for the constitution and regulation of an Armed
Force of the Union for ensuring the security of the borders of India and for
matters connected therewith."
Section 4(1) of the Border Security Force Act reads as under:-
"There shall be an armed force of the Union called the Border
Security Force for ensuring the security of the borders of India."
It leaves no manner of doubt that under the Act of 1968, the Border
Security Force has been statutorily described as an 'Armed Forces of the Union'.
Now, the question that comes up for consideration is whether the 1982 Rules,
framed by the State, would at all be applicable in the facts of the instant case.
The 1982 Rules have been brought into force on the basis of power
conferred by the proviso to Article 309 of the Constitution of India. Article 309, in
its entirety, is reproduced hereinbelow:-
"Recruitment and conditions of service of persons serving
the Union or a State.- Subject to the provisions of this Constitution, Acts
of the appropriate Legislature may regulate the recruitment, and conditions
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of service of persons appointed, to public services and posts in connection
with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such
person as he may direct in the case of services and posts in connection
with the affairs of the Union, and for the Governor of a State or such a
person as he may direct in the case of services and posts in connection
with the affairs of the State, to make rules regulating the recruitment, and
the conditions of service of persons appointed, to such services and posts
until provision in that behalf is made by or under an Act of the appropriate
Legislature under this article, and any rules so made shall have effect
subject to the provisions of any such Act."
A mere glance at the 1982 Rules reveals that it is for the purpose of
regulating the reservation of vacancies in the State Services and Posts, Group
"C" and Group "D", for Ex-Servicemen. Conversely, the relevant Rules which
govern the recruitment and service of primary teachers in West Bengal are the
West Bengal Primary Teachers' Recruitment Rules, 2001 (as amended upto date)
and the West Bengal Primary Education (Conduct of Service of Teachers), 2001
(as amended upto date). Both these Rules have been framed under the provisions
of the West Bengal Primary Education Act, 1973. There are various other Rules
and Regulations governing the service of primary teachers in West Bengal as well
as several Notifications, Guidelines and Circulars, all having their source of
power flowing from the provisions of the West Bengal Primary Education Act,
1973. The 1982 Rules are confined only in respect of State Services and Posts,
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Group "C" and Group "D". The service of a primary school teacher is certainly not
a "State Service" or a "Post". Had it been a "State Service" or a "Post" it would
have attracted the definition of "West Bengal State Services" as provided under
the West Bengal Services Rules.
Sub-rule (4) of Rule 5 of the West Bengal Service Rules (Part - 1)
statutorily defines "West Bengal State Services", which reads as under:-
"West Bengal State Services means those services and posts
under the administrative control of the Government which have been
classified as Group 'A', Group 'B', Group 'C' and Group 'D'."
The above definition clarifies that only those Services and Posts which
are under the "administrative" control of the Government and which have been
classified as Group-'A', Group-'B', Group-'C' and Group-'D', could fall within the
statutory definition of "West Bengal State Services."
As discussed hereinbefore, the recruitment and service of a primary
school teacher in West Bengal are governed under various Rules, Regulations,
Notifications, Guidelines and Circulars, all of which have their roots originating
from the West Bengal Primary Education Act, 1973, the preamble of which reads
as follows:-
"An act to make better provision for the development, expansion,
management and control of primary education with a view to making it universal,
free and compulsory."
It is by virtue of the provisions of the West Bengal Primary Education
Act, 1973, that the West Bengal Primary Teachers' Recruitment Rules, 2001 (as
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amended upto date) has come into existence. The recruitment process was
initiated by the various District Primary School Councils in West Bengal following
the said Recruitment Rules. The post of a primary school teacher is created,
managed and controlled by virtue of the powers conferred under the West
Bengal Primary Education Act, 1973, and the Rules, Regulations, Notifications,
Guidelines and Circulars framed thereunder and, therefore, does not fall under
the definition of "West Bengal State Services" as provided in the West Bengal
Service Rules (Part - 1).
Thus, the 1982 Rules, which has been relied on by the State
respondents, have no manner of application at all in the facts of the present case.
In such circumstances, this Court directs the District Primary School Council, Purulia, to forward the name of the writ petitioner to the office of the Director of School Education, West Bengal, within three weeks from the date of communication of a photostat certified copy of this order.
The Director of School Education, West Bengal, upon receipt of the name of the petitioner from the office of the Council, shall take appropriate steps in the matter and grant approval in favour of the writ petitioner, in the event he conforms to and fulfils all statutory requirements necessary for the purpose of securing his appointment. It is expected that the Director of School Education, West Bengal, shall complete the entire exercise as expeditiously as possible, preferably within a period of four weeks, but not later than six weeks from the date of receipt of the name of the petitioner from the office of the Council in terms of this order.
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In the event the Director of School Education, West Bengal, grants approval in favour of the writ petitioner, the Chairman of the Council shall issue appointment letter in favour of the writ petitioner within a week therefrom.
Before parting with the matter, this Court renders its appreciation for Mr. Ashok Dey, learned Senior Advocate, who was appointed as an amicus curiae in terms of the order dated 20th January, 2011, for rendering assistance to the Court in the best possible manner.
The writ petition stands disposed of accordingly.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties.
(Biswanath Somadder, J.) 11 The facts of the instant case being more or less similar to (Matar Chandra Mahato vs. The State of West Bengal & Ors.). The ratio of the judgment and order passed in that matter is squarely applicable on 2nd August, 2011, as well as 4th August, 2011, respectively.
In such circumstances,..............."