1 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay W.P.A. 8609 of 2016 Tanmoy Ghosh & Ors. -Vs- The State of West Bengal & Ors. For the Petitioners : Mr. Upendra Roy Mr. Arunesh Pathak Mr. Aniruddha Singha Roy For the State : Mr. Mrinal Kanti Ghosh Ms. Sangeeta Roy Heard on : 11.07.2024, 28.02.2025, 14.05.2025, Judgment on : 28.08.2025 Ananya Bandyopadhyay, J.:- 1. The petitioners duly registered as Civil Defence Volunteers of Hooghly District on contractual basis, having successfully completed basic Civil Defence training, were eligible to participate in the recruitment process initiated pursuant to Notification No. 97(3)/DCD dated 07.02.2012 issued by the Director of Civil Defence, West Bengal, inviting applications for engagement of Auxiliary Fire Personnel in the West Bengal Fire and Emergency Services on contractual basis. Out of 1660 posts notified, 175 posts were earmarked for Hooghly District Civil Defence Volunteers. 2. The District Magistrate and Controller of Civil Defence, Hooghly, constituted a Selection Committee which shortlisted 148 candidates from 2 the four sub-divisions of Hooghly for the screening test. Admit cards were duly issued by the Director General, West Bengal Fire and Emergency Services (Respondent No. 3), and the petitioners participated in physical measurement, endurance and viva-voce tests. 3. Although 175 posts were declared for Hooghly, only 106 candidates were declared qualified by Respondent No. 3. The petitioners contended the introduction of an arbitrary cut-off or benchmark in viva-voce, not prescribed under the Notification dated 07.02.2012, was a colourable exercise of power intended to exclude otherwise eligible candidates. The process, according to the petitioners, was neither transparent nor consistent with the recruitment notification. 4. Despite repeated representations to the concerned authorities, including the Principal Secretary, Department of Fire and Emergency Services, the petitioners were not appointed against the remaining vacancies though publication of further lists was assured. 5. Aggrieved thereby, the petitioners approached this Hon’ble Court in W.P. No. 12246 (W) of 2013. This Court was pleased to direct the authorities to keep 31 posts vacant for the petitioners and sought clarification on the terms “vulnerability” and “exigencies” used in reducing the number of posts. The report subsequently filed by the respondents did not provide any rational explanation, and by order dated 30.11.2015, this Hon’ble Court held the reduction of posts was a result of total non-application of mind and directed the authorities to revisit the vacancy position and consider the petitioners for appointment, if otherwise eligible. 6. The petitioners asserted to have fulfilled all requisite qualifications, have been duly subjected to the prescribed selection process, and have never 3 been disqualified on merit. The reduction of 31 posts from Hooghly District was arbitrary, mala fide, vindictive and violative of Articles 14, 16 and 21 of the Constitution of India. 7. Instead of implementing the Court’s order in its true spirit, the respondents purported to initiate a second screening process by calling the petitioners afresh for tests, which was wholly illegal, arbitrary and beyond jurisdiction. The expression “revisit” as used in the Court’s order could only mean reconsideration of existing vacancies, not reopening of the entire selection process. 8. The irrational issuance of fresh admit cards for a second screening test, intended to deprive the petitioners of their legitimate entitlement. Such action is wholly mala fide, arbitrary, and in violation of the principles of natural justice as well as the binding orders of this Hon’ble Court. 9. The petitioners, therefore, contended the reduction of posts, exclusion from the selection list, and initiation of a second screening process were illegal and liable to be set aside and they were entitled to appointment against the notified vacancies of Hooghly District in terms of Notification No. 97(3)/DCD dated 07.02.2012. 10. The Learned Advocate representing the petitioner submitted as follows:- (i) The petitioners contended the recruitment process initiated pursuant to Notification No. 97(3)/DCD dated 07.02.2012 for appointment of Civil Defence Volunteers in Hooghly district was illegal, arbitrary, non-transparent and contrary to the terms of the said notification. (ii) It was argued that the Civil Defence Authorities acted without jurisdiction in prescribing cut-off marks/benchmarks for viva- 4 voce after candidates had already qualified in the written, physical measurement and endurance tests, since the notification did not authorize fixation of such cut-off marks. (iii) The petitioners, being fully qualified, had a legitimate expectation of appointment. Since the number of available vacancies exceeded the number of petitioners, all petitioners ought to have been appointed. Reduction of notified vacancies from 175 to 106 in Hooghly district was termed arbitrary, mala fide, vindictive and violative of Articles 14, 16 and 21 of the Constitution. (iv) The direction for the petitioners to reappear before a Screening Committee was challenged as mala fide, punitive and beyond jurisdiction, amounting to reopening the entire selection process despite their earlier success in all prescribed tests. (v) The Hon’ble Court had earlier directed that 31 posts be kept vacant for the petitioners. Despite this, the respondents sought to reduce posts and initiate a second screening process, which was alleged to be in contravention of the Court’s orders. (vi) Respondents themselves admitted through affidavits that posts in Hooghly district remained unfilled. Out of 175 notified posts, only 106 had been filled, leaving several vacancies. (vii) The petitioners submitted that although qualified since 2012, their appointments were deliberately withheld for extraneous reasons, causing undue hardship. (viii) The petitioners prayed the recruitment process, in so far as it excluded them by applying unauthorized cut-off marks and by 5 reducing the number of posts, be set aside, and they be appointed against the existing vacancies in Hooghly district in terms of the notification dated 07.02.2012 and subsequent orders of this Hon’ble Court. 11. The Learned Advocate representing the respondent submitted as follows:- (i) It was contended on behalf of the respondents that the writ petition was not maintainable for misjoinder and/or non-joinder of necessary parties. It was submitted that the engagement of Auxiliary Fire Personnel was a policy decision of the Government of West Bengal, taken to meet urgent public requirements, pursuant to Government Orders dated 19.01.2012 and 08.11.2012, under which Civil Defence Volunteers, duly trained in fire operation, were to be appointed as Auxiliary Fire Operators on contractual basis. The number of sanctioned posts was initially fixed at 2000 but was later reduced to 1572, with prescribed eligibility criteria and physical standards. (ii) It was further submitted that pursuant to the said policy, selection and engagement of 1170 Auxiliary Fire Operators was completed in 2013. Certain unsuccessful candidates challenged the process in W.P. No.12246(W) of 2013 and connected matters, in which the Hon’ble High Court, Calcutta, by order dated 30.11.2015, directed the Director General, Fire & Emergency Services, to revisit the vacancy position and consider the cases of eligible petitioners if vacancies were available. The said order was accepted by the petitioners and attained finality. 6 (iii) In compliance, vacancies were reassessed and 28 posts were allotted to Hooghly district, for which call letters were issued. The petitioners, however, did not appear for the Endurance Test held on 13.05.2016 and instead challenged the test by filing the present writ petition. It was contended that endurance tests were indispensable, as physical fitness was a mandatory criterion for the post. The decision to conduct such test was upheld in other writ petitions on similar issues. (iv) It was further submitted that the engagements were purely contractual in nature, for a limited tenure, and have since expired. Regular recruitment to the post of Fire Operators has also been initiated through the Public Service Commission. Moreover, subsequent challenges, including O.A. No.53 of 2019 before the West Bengal Administrative Tribunal, W.P.S.T. No.89 of 2023 before the Hon’ble Division Bench, and SLP No.25307 of 2023 before the Hon’ble Supreme Court, were all dismissed. 12. Challenging the selection process of 2013 certain writ applications were filed by certain candidates of different Districts and an order dated 30.11.2015 was passed by the Hon’ble High Court, Calcutta in W.P. 12246(W) of 2013 and in eight other matters. The Hon’ble High Court, Calcutta directed the Director General, Government of West Bengal Fire and Emergency Services to revisit the vacancy position throughout the State of West Bengal and if vacancies were available, consider the petitioners’ case for being appointed to the post in question, provided of course, they were otherwise eligible and/or entitled to in accordance with law. 7 13. In compliance of the above order of the Hon’ble High Court Calcutta, the Director General had revisited the vacancy position throughout the State and an order was issued accordingly where vacancies were allotted against seven Districts vide Memo No.WBFES/1995 dated 04.03.2016 and for the district of Hooghly 28 vacancies were allotted. 14. Accordingly call letters were issued to the petitioners for Endurance Test. The Endurance Test was held on 13.05.2016 but the petitioners did not appear in the said Endurance Test and filed the instant writ petition challenging such Endurance Test for 2nd time. 15. The engagement of the Auxiliary Fire Operators was accomplished in different Districts in compliance with the order dated 30.11.2015 passed by the Hon’ble Court in the writ petition being W.P. No.12246(W) of 2013 and in similar other writ petitions in the following manner:- Sl. No. Name of the Districts No. of Vacancy No. of AFO Engaged Vacant 1. Jalpaiguri 21 21 0 2. Dakshin Dinajpur 15 15 0 3. Murshidabad 6 6 0 4. Howrah 10 9 1 5. Nadia 5 5 0 6. Burdwan 3 3 0 7. Hooghly 28 0 28 Total 88 59 29 8 16. The petitioners were impleaded in writ petition being W.P. No.12246(W) of 2013 in which the order dated 30.11.2015 passed by the Hon’ble High Court was not challenged by the writ petitioner wherein the said order was conclusively final as of date. In the said order dated 30.11.2015 passed by the Hon’ble Court it was directed, inter alia, as follows:- “For reasons stated above, this Court is of the view that the Director General, West Bengal Fire and Emergency Services, shall revisit the vacancy position throughout the State of West Bengal and if vacancies are available, consider the petitioners’ case for being appointed to the posts-in-question, provided of course, they are otherwise eligible and/or entitled to, in accordance with law.” 17. The respondent authorities were directed to consider the candidature of the petitioners in respect of fresh assessed vacancies if they were otherwise eligible. The physical fitness was an important criteria for engagement of Auxiliary Fire Operators which might undergo change with lapse of time. Therefore, the decision of the respondent authority to conduct endurance test in respect of Auxiliary Fire Operators was in accordance with law and not arbitrary or capricious or violative of legal principles. The legality of holding Endurance Test of the candidates after re-allotting the vacancies is indisputable. Moreover, as the petitioners accepted the order dated 30.11.2015 passed by the Hon’ble Court without challenging the same which attained finality. 18. The engagement of Auxiliary Fire Operators was contractual in nature. The petitioners did not appear to undergo the endurance test and the said period elapsed. The respondent authorities initiated steps for regular 9 appointment in the post of Fire Operators in the place of such contractual engagements through Public Service Commission. 19. The final list of selected candidates for the post of Auxiliary Fire Operator was challenged before the West Bengal Administrative Tribunal by filing an application being O.A. No.53 of 2019. 20. The order dated February 21, 2019 passed in O.A. 53 of 2019 a writ petition being W.P.S.T. No.89 of 2023 was filed. By a judgment dated September 14, 2023, the Hon’ble Division Bench dismissed the said writ petition. 21. Challenging, inter alia, the aforesaid judgment dated September 14, 2023 a Special Leave Petition being No.25307/2023 was filed before the Hon’ble Supreme Court and by an order dated 20.11.2023 the Hon’ble Supreme Court dismissed the Special Leave Petition. 22. The order passed in writ petition being WP No.12246(W) of 2013 on 30.11.2015 did not specifically mention that the petitioners, based on their earlier performance, should be considered eligible or entitled to being appointed in the post of Auxiliary Fire Operators as aforesaid. 23. The order as aforesaid, however, stated if the petitioners were otherwise eligible and/or entitled to in accordance with law. The endurance test objectified the assessment of physical fitness being one of the primary criteria to be fulfilled in projecting and portraying one’s capability to act as Auxiliary Fire Operator. The petitioners were asked to appear for the test against the appointment to the re-assessed vacancies of 28 posts and the same could not be termed to have been deliberate and mala fide with an intention to deprive them from being appointed. The candidates in the other Districts as enumerated in the chart above did appear for the 10 endurance test and got engaged accordingly. The Appointing Authority did not, however, act in contravention with law and, therefore, the action on their part had been in accordance with law. 24. Moreover, the period and purpose of appointment of the petitioners on the contractual basis could not be treated at par with regular employees appointed against sanctioned posts. The appointing authority can exercise its discretion to appoint any incumbent to a permanent post converting the post with regard to contractual employment. 25. The Appointing Authority, in its administrative capacity, can decide and determine the process of such employment and the decision to appoint permanent employees through the Public Service Commission exclusively lie within the domain of the Appointing Authority not to be interfered with by this Court. 26. In view of the above discussions, the instant writ petition being WPA 8609 of 2016 is dismissed. 27. There is no order as to costs. 28. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. (Ananya Bandyopadhyay, J.)