Biswanath Somadder, J.@mdashThis 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 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.
2. 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:
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.
3. 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.
4. 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.
5. 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 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.
6. He further submitted that the 1982 Rules has excluded personnel of the Border Security Force to be considered as ''ex-servicemen'' and in such 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.
7. 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.
8. 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.
9. 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 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.
10. 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.
11. 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.
12. 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.
13. 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 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.
14. 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, 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.
15. 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''.
16. 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."
17. 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.
18. 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 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).
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. The writ petition stands disposed of accordingly. Urgent photostat certified copy of this order, if applied for, shall be given to the parties.
