B.C. Basak, J.
1. In this application under Article 226 of the Constitution of India, the petitioner has challenged the order of his reversion as per Memo, dated 12th August, 1980 passed by the Superintendent of Police, Cooch Behar, being Annexure 'F' to the petition. The allegations of the petitioner are as follows:
The petitioner was appointed as a temporary Sub-Inspector (RT) of West Bengal Police with effect from 28th August, 1966. While serving as Sub-Inspector of Police the petitioner passed all the departmental examinations prescribed for promotion to the post of Inspector of Police and also completed successfully the 15 weeks' course of training at the Detective Training School Barracl pore. A Departmental Board consisting of inspector General of Police of the State met a conference held on 29th and 30th November, 1976 and after consideration of the records of all eligible officers decided to include the name of the petitioner at the bottom of the existing Trial List in order of inter se seniority and the name of the petitioner found place at Serial 40 of the List. It is stated that before inclusion of the petitioner's name in the said List, the case of the petitioner, amongst others, was considered by the Deputy Inspector General of Police of the concerned Range in conference with the Superintendents of Police of the Range. After inclusion of the name of the petitioner in the existing Trial List of Sub-Inspectors fit for promotion as Inspectors of Police, the petitioner was appointed under Order dated 29th January, 1977 to officiate as Circle Inspector of Police, Gazole, Malda, with effect from the date of assuming charge and until further orders. The said appointment was published in the West Bengal Police Gazette, on 11th February, 1977. Pursuant to the aforesaid order promoting him to the post of Inspector of Police, he assumed charge as Circle Inspector of Police, Chanchal in Malda District on 5th February, 1977. Thereafter, the petitioner held several posts as Inspector of Police for about three years when by the impugned order dated 12th August, 1980 passed by the Superintendent of Police, Cooch Behar, the petitioner was reverted to his substantive rank of Sub-Inspector with effect from 12th August, 1980. The petitioner has challenged this order in the present writ petition.
2. In the affidavit in opposition affirmed on behalf of the respondents, the case sought to made out on behalf of the State is as follows:
With reference to the allegations made in para 4 of the said petition I state that the petitioner along with a number of other officers were recruited as temporary Sub-Inspectors in 1966 on the basis of a special Recruitment Examination for the purpose of Radio Telephone work. The qualifications of the candidates were the same as those of the direct recruit as prescribed in Regulation 741 of Police Regulations, Bengal, Vol. I of 1943. The Radio Telephone Sub-Inspectors including the petitioner were put through an abridged course of training at Police Training College for a period of four months instead of usual period of one year and an abridged course of practical training for 6 months instead of usual training for one year. On completion of the above abridged course in 1967 they were utilised in Law and Order duties in Radio Telephone patrol vans. In 1969 it was further decided that they should be given a further training for a period of six months at Police Training College like departmental officers and six months practical Training thereafter in the Districts so that they might be eligible for absorption in the regular cadre according to seniority. Those officers including the petitioner were made probationers with effect from 1st March, 1971 and confirmed with effect from 1st March, 1973. When the Radio Telephone Sub-Inspectors did not complete their training in 1966 and they were again sent for training in 1969 allowing them to sit for departmental promotion examination in 1974 under this office Radiogram No. 3999/Per (A) dated 24th September, 1974 having taken that they had left Police Training College in 1966 appears to be a mistake in calculations. In terms of Regulation 806(a) of Police Regulations, Vol. I, 1943 every directly appointed Sub-Inspector may sit for departmental examination after completing eight years service which is to count from the date he leaves Police Training College after his final examination. He was recruited as a temporary Sub-Inspector on 28th June, 1966 and a probationary Sub-Inspector on 1st March, 1971 and confirmed in the rank on 1st March, 1973. So on 1st March, 1979 the petitioner becomes eligible for appearing at the examination and for promotion to the rank of Inspector. The petitioner however had passed the departmental examination in 1976. Save as aforesaid and save what are matters of admitted records, I deny each and all the allegations made therein. A copy of the radiogram passage bearing No. 3799/PER (A) dated 24th July, 1974 is annexed hereto and marked with the letter 'A' (para 4).'
With reference to the allegations made in paras 5, 6 and 7 of the said petition, I state that selection of Officers for the promotion to the rank of Inspector is done as per the procedure laid down in Appendix XLIII of Police Regulations, Bengal Vol.I, 1943. The petitioner was nominated along with other eligible Sub-Inspectors by the Deputy Inspector General of Police, Burdwan Range for consideration of his name for inclusion in the Trial List of the Officers fit to officiate as inspector in the conference of the Deputy Inspector General of Police with the Inspector General of Police held in 1977 and his name was accepted in the conference for inclusion in the Trial List. Accordingly the petitioner was promoted to officiate as Inspector of Police with effect from 5th February, 1977 and was posted to officiate as Circle Inspector, Gazol. It was also decided in the said conference that the question of eligibility of this category of officers (Radio Telephones Sub-Inspectors) for inclusion of their names in the Trial List should be properly examined and a decision be taken in their cases. On a scrutiny of the nomination roll submitted by the Deputy Inspector General of Police, Burdwan Range, it appeared that the petitioner passed the departmental examination completely on 23rd April, 1974 and Detective Training School Examination in 1976. It also appeared that there was no indication in the nomination roll that he was recruited as a Radio Telephone Sub Inspector. The long gap between the date of his temporary appointment and the date of his probationary appointment was the only indication to denote that he was not a direct sub-inspector of the General Cadre and was ineligible for consideration of his name in the conference of the Inspector General of Police with the Deputy Inspectors General of Police for inclusion of his name in the Trial List of Officers fit to officiate as Inspector after having passed the departmental Examination completely in terms of Regulation 806(a) of Police Regulations, Bengal Vol.1, 1943 and after passing the Detective Training School Examination. As such the inclusion of the name of the petitioner in the Trial List drawn up in the conference of the Inspector General of Police with the Deputy Inspectors General of Police held in November, 1976 was erroneously done and subsequently the promotion of the petitioner as Inspector of Police with effect from 5th February, 1977 was also erroneous. Save as aforesaid and save what are matters of admitted records, I deny each and all the allegations made therein as if the same are set out and traversed ad seriatim.' (Para 5)
With reference to the allegations made in para 14 of the said petition, I state that in view of the facts stated in para. 5 hereinabove, allowing the Radio Telephone. Sub-Inspectors including the petitioner to sit for the departmental examination in terms of Regulation 806(a) of Police Regulations, Bengal Vol.1 was a mistake in calculation and as such the question of consideration of their cases in the conference of Inspector General of Police with the Deputy Inspectors General of Police held in the year 1976 and the subsequent promotion to the rank of Inspector was erroneous. Orders contained in Government order No. 3741-F dated 18th July, 1964, inter alia enjoin that the orders of notification of promotion etc., of a Government servant should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from a factual error and the Government servant should be brought down to the position which he would have held but for the incorrect order of promotion etc. by obtaining an order of such erroneous promotion/appointment from the next higher authority. The appointing authority of the Inspectors being the Inspector-General of Police, the next higher authority viz. the Government were moved to cancel the erroneous promotion of the petitioner allowing him to officiate as Circle Inspector, Gazole issued under this Office Notification No. 487-Per/GA-II dated 29th January, 1977 and the order was cancelled in Government order No. 539-P & R (P) dated 20th February, 1980. Save as aforesaid and save what are matters of admitted records, I deny each and all the allegations made therein as if the same are set out and traversed ad seriatim. Copies of the memorandum No. 3741F dated 18th July, 1964 and order No. 539 P & R (P) dated 20th February, 1980 are annexed hereto and collectively included in annexure 'A'.' (Para 9)
With reference to the allegations made in the paras 15 and 16 of the said petition I state in terms of Government order No. 3471-F dated 18th July, 1964 the question whether promotion or appointment of particular Government servant to a post was erroneous or not should be decided by an authority next higher than the appointing authority in accordance with established principles governing promotion/appointment. In the instant case, the Inspector General of Police being the appointing authority, the order of erroneous promotion of the petitioner was cancelled by the next higher authority viz. the Government vide Government order No. 539 P & R (P) dated 20th February, 1980. The copy of the above Government order was endorsed to the Deputy Inspector General of Police, Jalpaiguri Range and the Superintendent of Police, Cooch Behar for information and immediate necessary action. Save as aforesaid and save what are matters of admitted records, I deny each and all the allegations made therein.' (para 10)
A copy of the said 18th July, 1964 order has been annexed. The relevant provisions are set out in sub-paras 2(c) and (e) and 3 which are set out hereinbelow:
2(c) The orders of notification of promotion or appointment of a Government Servant should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from a fact (or?) error and the Government servant concerned, should immediately on such cancellation, be brought to the post which he would have held but for the incorrect order of promotion or appointment.
(e) Except where the appointing authority is the Governor, the question whether promotion or appointment of a particular Government servant to a post was erroneous or not should be decided by an authority next higher than the appointing authority in accordance with the established principles governing promotions/appointments where the appointing authority is the Governor the decision should rest with the Governor and should be final.
3. All cases of erroneous promotions/appointments confirmations should be viewed with serious concern and suitable disciplinary action should be taken against the officers and staff responsible for such erroneous orders. Attention of all appointing authorities should also be drawn to the principles enunciated in the preceding paragraph in disposing of any complaints against such erroneous orders.
4. Mr. Maitra appearing in support of this application has raised the following contentions. So far as the alleged reversion is concerned, he has stated that for an appeal there is a provision for 37 days and in case of revision though no particular time has been specified, it cannot be for a period of more than 37 days. In this connection he has relied on in the case of S.N. Mahapatra v. State of West Bengal reported in : : (1972)ILLJ368Cal wherein it was held that though there is no time limit under Regulation 884 in exercising the revisional powers by the authorities on their own motion, it should be treated as cams omissus and the period of 37 days from the date of the final order must be considered normally to be the limit unless delay for commencing the proceeding at a later date is unavoidable and sufficiently explained by the revisional authority. Mr. Maitra has further submitted that there is no question of any mistake. He has submitted that even if there was any mistake, it was merely an irregularity and that does not make any order of appointment a nullity. The respondents themselves have committed an irregularity. Thereafter, they have allowed the petitioner to be promoted and the petitioner was allowed to function for three years before the impugned order was passed. Under these circumstances, the petitioner cannot be punished for the wrong of the respondents. He has further submitted that there is a violation of the principles of natural justice in this case. The petitioner has been allowed to function as Inspector for three years and without any opportunity suddenly he has been reverted to the post of Sub-Inspector. Though the impugned order mentions about parent order of the Government, no copy of the same was furnished to the petitioner. He has further submitted that the order of reversion complained of is a result of the order of cancellation of the selection of the petitioner and appointment to the post of Inspector in the year 1977. This order was never served on the petitioner. The order not having been served on the petitioner has not come into effect and, accordingly, on the basis of such order, no action for reversion can be taken. In this connection, he has relied on a decision in the case of State of Punjab v. Amar Singh Harika reported in 1966-II L.L.J. 188. He has challenged this order as being unfair, arbitrary and improper. The petitioner admittedly completed the departmental examination and after due consideration his name was put in the panel and thereafter he was selected for appointment and, in fact, he worked as Inspector for more than three years when the impugned order was passed. Mr. Maitra has submitted that for this reason the impugned order should be quashed.
5. Mr. Mondal, learned Advocate appearing for the State, has made the following submissions. He has submitted that the petitioner was allowed to sit in the departmental examination by mistake. As he had not completed eight years of service at the relevant time, he should not have been allowed to appear in the departmental examination. But he has admitted that the petitioner has passed the departmental examination. This is also borne out by the records produced before me. At page (xx) of the File No. PR/GA/II/961/78, it was pointed that the petitioner was eligible to be considered for inclusion of his name in the T.L. i.e., Trial List as he has passed the departmental examinations as well as the D.T.S. examination but he was not eligible to sit in the departmental examination at that time as he had not completed 8 years of service from the date of his appointment as probationary Sub-Inspector. A question was raised as to whether it should be considered whether his passing the departmental examination should be treated as valid. The officer whose name and designation cannot be ascertained had made a very fair and proper suggestion. It is unfortunate that the same was not heeded to. It is found from further note that in view of emergency the government itself put them in training for a shorter period than required. They had been given training before. Therefore, the government itself for its own necessity has waived some requirements. Mr. Mondal has also submitted that, in this case, in view of the Government order dated 18th July, 1964 referred to above as the notice of the government was not brought to the said mistake, the order was cancelled. No further submission has been made on behalf of the State.
6. In my opinion, there are merits in the contentions of Mr. Maitra. Here is a case where the petitioner was allowed to appear in the departmental examination and he passed the same. His name was then put in the suggestion list by the D.I.G. of the Range in question in consultation with the Superintendent of Police. Thereafter, it was placed before the regular Board consisting of I.G. of Police, D.I.Gs. and other officers. The petitioner's name was selected for inclusion in the list of officers fit for promotion to the post of Inspector of Police. Pursuant thereto, the petitioner was promoted and appointed as Inspector of Police in which post he worked for three years at different places before the impugned order was passed. In my opinion, under the circumstances, the order passed was unfair and arbitrary. The Government should have realised that it was their mistake, if any, and not any fault on the part of the petitioner. Further, having allowed the petitioner to continue to work on the ground of their own admitted mistake, they should not have treated the petitioner in the fashion as they had done. They have abruptly and without any notice to the petitioner reverted him to the post which he held three years back. This was done without giving him an opportunity and without communicating to him the main order by which after three years his appointment as the Inspector was cancelled. This parent order of the government which resulted in the impugned order was also not communicated to him. Reliance on the July, 1964 Government Order is misplaced. I ought to point out also mat the petitioner had the qualification which was required for passing the departmental examination. Therefore, merely because he was wrongly allowed to appear in the departmental examination, it cannot be said that he was a disqualified candidate. Therefore, in my opinion, shelter cannot be taken behind the said notification. Moreover, nowhere it is stated that such action is to be taken without giving him an opportunity of showing cause. If such mistake was detected immediately after passing of the impugned order, though by mistake three years have been allowed to pass and then such cancellation was made, in my opinion it requires an opportunity to be given. It is well settled that opportunity of snowing cause can be inferred or implied though the same is not expressly mentioned. There is no express bar for the same In the impugned order. I have already stated that in the facts of this case an opportunity should have been given. Following the decision reported in S.N. Mahapatraa (supra), I also think that in this case such order after near about three years cannot be passed. In this context, I may also point out that para 3 of the July, 1964 Notification provides as follows:
All cases of erroneous promotions/appointments/confirmations should be viewed with serious concern and suitable disciplinary action should be taken against officers and staff responsible for such erroneous orders.
I have enquired from Mr. Mondal as to whether such step has been taken against any such defaulting officers, but he has not been able to furnish me with any such information. The I.G. of Police, several D.I.Gs. and several other officers were involved. The mistake, if any, is mistake on their part apart from the mistakes of the subordinate officers who had prepared the papers. Accordingly I may assume that because of the high ranks held by these officers, in spite of July, 1964 Government Order, which is sought to be enforced against the petitioner, has not been enforced against any one of these officers.
7. For the aforesaid reasons, I accept the contention of the petitioner.
The writ application is accordingly allowed and rule is made absolute.
There will be an order restraining the respondents, their servants and/or agents from giving any effect to or any further effect to the order 2815 dated 12th August, 1980 passed by the Superintendent of Police, Cooch Behar, reverting the petitioner to the rank of Sub-Inspector and the Government orders dated 20th February, 1980 and A.I.G.O. W.B. Memo, dated 9th August, 1980 referred to therein.
8. I make it clear that this order will not prevent the authorities from transferring the petitioner to some other place as Inspector of Police because in view of the pendency of this application and the orders made therein, the petitioner has not yet been transferred though he has been holding this post for more than the period usually allowed before transfer.
There will be no order as to costs.