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1957 Supreme(Pat) 115
PATNA HIGH COURT
V.Ramaswami and Raj Kishore Prasad JJ.
Manoranjan Ghose
Versus
State Of Bihar
Miscellaneous Judicial Case No. 58 of 1957 ;
Decided On : APRIL 23, 1957
An order refusing permission to a candidate to appear in an examination is ultra vires if the candidate has fulfilled the conditions required by the relevant government circular and order.
Headnote:
CONSTITUTION OF INDIA, 1950 - ARTICLE 226 - WRIT OF MANDAMUS - SPECIAL LOWER DIVISION SECRETARIAT EXAMINATION - ELIGIBILITY - CONDITIONS - FULFILLMENT - ORDER REFUSING PERMISSION TO APPEAR AT EXAMINATION - ULTRA VIRES.
Fact of the Case:
The petitioner, a temporary assistant in the Northern Range office, was denied permission to appear in the Special Lower Division Secretariat Examination due to an order reverting him to his substantive post of typist Class II with effect from 21st May 1956. The petitioner challenged this order, arguing that it was not communicated to him until 29th January 1957 and therefore did not become effective before that date.
Finding of the Court:
The court found that the order reverting the petitioner was communicated to him and became effective only on 29th January 1957, and that on 30th August 1956, the petitioner had put in one year of continuous service as a Lower Division Assistant. Therefore, the petitioner had fulfilled the conditions imposed by the Government circular and order and was entitled to appear at the examination.
Issues: 1. Whether the order reverting the petitioner from the post of temporary assistant to the post of typist Class II was effective from 21st May 1956 or from 29th January 1957. 2. Whether the petitioner had fulfilled the conditions required by the Government circular and order to appear at the Special Lower Division Secretariat Examination.
Ratio Decidendi: The court held that the order reverting the petitioner was not communicated to him until 29th January 1957 and therefore did not become effective before that date. As a result, the petitioner had put in one year of continuous service as a Lower Division Assistant on 30th August 1956 and had fulfilled the conditions required by the Government circular and order to appear at the examination. Therefore, the order refusing permission to the petitioner to appear at the examination was ultra vires.
Final Decision: The court allowed the petition and issued a writ of mandamus commanding the respondents to publish the results of the Special Lower Division Secretariat Examination held on 7th February 1957, so far as the petitioner was concerned.
1. This is an application on behalf of the petitioner Mandranjan Ghose praying for grant of a writ under Article 226 of the Constitution commending the Opposite parties to permit the petitioner to sit for the Special Lower Division Secretariat Examination, to be held on 7th February, 1957. Cause has been shown in this case by the learned Government Advocate on behalf of the State of Bihar and other opposite parties to whom a notice of the rule was ordered to lie given..
2. The rule was issued in this case on 24th January 1957. Thereafter the, petitioner made a prayer that he may be permitted to sit for the examination to be held on 7th February 1957, pending the hearing of the application, but that the result of the examination may not be published or given effect to until the application was disposed of. The prayer was allowed by this Bench and on 4th February, 1957 it was ordered that the petitioner should be permitted to appear at the examination to be held by the Finance Department on 7th February 1957, and that the results would not be published till the disposal of the application.
3. The case of the petitioner is that he was appointed on 25th September 1943, as a Class II typist and was confirmed with effect from 18th May 1948, in the office, of the Inspector General of Police, Patna. He was promoted as Class I typist from 1st June 1950. On 19th. May 1956, the petitioner made a representation to the Secretary of the Finance Department through the proper authorities for permission to appear at the Special Lower Division Secretariat Examination. The case of the petitioner is that no permission was granted to him by the Finance Department, though he was qualified to appear at the examination and though he fulfilled all the conditions required by the Government order dated 9th November 1956. The Government order is to the following effect ;
"Notice." A special competitive examination will be conducted by the Finance Department on 17th, 18th, 19th and 20th December 1956, for the assistants who are now employed on temporary basis in the Secretariat (Including amalgamated departments) and in the offices attached to the Secretariat (including Unamalgamated Departments, the offices of the Chief Conservator of forest, Bihar Secretariat to the Governor, Commissioners of all divisions etc). In order that a candidate is eligible to sit at the examination, he must (a) have put in more than one year of continuous service as L. D. Assistant in the scale of 75-150/70-125 on 30th August 1956. The candidate must have passed I. A. or I. Sc. or any other equivalent examination. If, however, he is a Matriculate he must have put in at least 5 years continuous service under Government on 30th August 1955.
(b) have a certificate from his department head that his temporary service has been satisfactory and that he is fit for absorption in.the permanent service.
(c) Pay a fee of Rs. 5/- for appearing at the examination. The fee should be deposited in a treasury or branch of State Bank of India in Bihar and the amount should be credited under the head XXXVI Misc. Departments provincial Examination fees other Examination Fees. The duplicate copy of the challan should be attached with the application form.
2. The examination will consist of the following subjects, (i) precis writing.
(ii) Office procedure, Receipt and Registration of papers, Routine procedure in dealing with cases, Drafting, Tabulating, indexing and Recording of cases.
(iii) Bihar Service Code (Chapter I, II, III, IV, V, VI, S, 8 and Chapter
VII) Government Servants Conduct Rules and Travelling Allowance Rules.
(iv) Hindi Essay.
3. In order to qualify at the examination a candidate must secure not less than 50% marks in total excluding Hindi Essay for which qualifying marks will be 30 per cent.
4. Application should reach the Under Secretary--F. Department, through the proper channel not later than 30th November, 1956, in the enclosed form"
The circular of the Finance Depar
