Back
2011 Supreme(Cal) 689
High Court of Judicature at Calcutta
TAPEN SEN
Manabendra Nath Ghosh & Others
Versus
The Hon’ble High Court at Calcutta Service through the Registrar General, Appellate Side, High Court, Calcutta & Others
W.P. No. 1620 of 2010 with GA No. 843 of 2011, 1293 of 2011
Decided On : 18-05-2011
For the Petitioners:Mr. Bikash Ranjan Bhattacharya, Sr. Advocate, Mr. Subrata Talukdar, Mr. Sanjib Mitra, Ms. Deboshree Saha, Advocates.
For the Respondents:Mr. Alok Kumar Ghosh, Mr. Pratik Dhar, Mr. Rittwik Pattanaik, Mr. Joydeep Kar, Mr. Kishore Datta, Advocates.
Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.
Headnote:
WEST BENGAL JUDICIAL SERVICE EXAMINATIONS - APPOINTMENT - POSTING - CONSULTATION - JURISDICTION - VALIDITY OF APPOINTMENT - VIOLATION OF ARTICLE 234 OF THE CONSTITUTION OF INDIA - WEST BENGAL JUDICIAL (CONDITIONS OF SERVICE) RULES 2004 - RULE 8 - MALICK MAZHAR SULTAN CASE - APPLICABILITY.
Fact of the Case:
9 Petitioners appeared in the West Bengal Judicial Service Examinations, 2009 for being appointed as Civil Judges (Junior Division). The Petitioners cleared the preliminary examinations successfully and were then asked to appear in the final written examinations. The PSC recommended the names of 25 candidates as against 25 out of 26 clear vacancies and 36 candidates as against 36 vacancies out of 37. The PSC requested the Judicial Department to verify the eligibility of the candidates on the basis of the original Certificates/documents filed by them. Upon completion of other formalities, the Respondent Nos. 4 and 5 caused a Notification to be published on 21.1.2010 whereby and whereunder 25 candidates out of the first category were appointed under List-A (in respect of the clear vacancies of 26) and a further two candidates were also appointed under List-B (in respect of the vacancies that may arise out of resignation and died in harness). The Petitioners' grievance is that the moment such an instruction was given that they should await receipt of Orders of posting, a right accrued in their favour to join on the post of Civil Judges (Junior Division) but in spite of a long lapse of time and till date, no Orders of posting were issued in favour of these Petitioners.
Finding of the Court:
The appointments themselves were irregular being contrary to the provisions of Article 234 read with Rule 8 of the 2004 Rules referred to above, then the appointments of the Petitioners are totally illegal. They are also beyond the vacancy and as such there is no obligation at all on the part of the High Court to issue posting Orders in their favour.
Issues: 1. Whether the Petitioners acquired vested/accrued rights once appointment Notifications were issued, obliging the High Court to issue posting Orders under Article 235 of the Constitution of India? 2. Whether the High Court violated the Judgment passed by the Hon’ble Supreme Court in the case of Mallick Mazhar Sultan by keeping on hold the posting of these 9 Petitioners? 3. Whether the appointments of the Petitioners were illegal and void ab initio due to being made without consulting the High Court?
Ratio Decidendi: 1. Article 234 of the Constitution of India clearly mentions that appointments of persons other than District Judges shall be made by the Governor of the State in accordance with the Rules made by him in that behalf after consultation with the PSC and the High Court exercising jurisdiction over the State. 2. Rule 8 of the West Bengal Judicial (Conditions of Service) Rules 2004 lays down that the appointments to any of the posts mentioned in Rule 6(1)(a) shall be made by the Governor in accordance with the “West Bengal Civil Service (Judicial) Recruitment Rules” after consultation with the High Court and the Commission. 3. The Petitioners' appointments were made without consulting the High Court and were therefore, wholly without jurisdiction and void ab initio.
Final Decision: The Writ Petition is dismissed. There shall be no Order as to costs. As a consequence of this Judgment, the interim Order granted earlier on 14th March, 2011 is hereby vacated.
Tapen Sen, J.
These 9 (Nine) Writ Petitioners had appeared in the West Bengal Judicial Service Examinations, 2009 (hereinafter referred to as the 2009 Examinations) for being appointed as Civil Judges (Junior Division) in the West Bengal Judicial Service pursuant to an advertisement published by the West Bengal Public Service Commission in the Newspapers on 31.1.2009 as contained in Annexure-P/1. In the said advertisement itself, it was intimated that :-
(a) the number of vacancies arising in 2009 was 26 (General-19, BC-02, SC-03, ST-01 and PH-01);
(b) the number of vacancies which may arise due to death, voluntary retirement, resignation or unwillingness to join the service by selected candidates was 37 (General27, BC-03, SC-04, ST-02 and PH-01).
2. The Petitioners have stated that the closing date for receipt of the Applications was 2.3.2009. The Petitioners, being eligible, duly applied before the said West Bengal Public Service Commission (Respondent No. 7) (hereinafter referred to as the PSC) and they also duly appeared in the said examinations which were held on 10.5.2009. After having cleared the preliminary examinations successfully, they were then asked to appear in the final written examinations which were held between 1.7.2009 and 10.7.2009. The final result was published in the Website of the PSC and by a letter dated 30.11.2009, the PSC informed the Secretary-in-charge to the Government of West Bengal, Judicial Department that 25 candidates as recommended by the PSC from the select list against 25 out of 26 clear vacancies (General-19, BC-02, SC-03, ST01 and PH-01) were being forwarded/communicated and that the names had been arranged in Order of merit.
3. The PSC also recommended the names of 36 candidates from the select list against 36 vacancies out of 37 (General-27, BC-03, SC-04, ST-02 and PH-01).
4. They also mentioned that in both the categories, no recommendations could be made against the physically handicapped vacancy of one for want of qualified PH candidates.
5. Upon a perusal of the recommended names of the two categories above, it would be evident that against the 26 vacancies for which 25 names had been recommended, the PSC placed the Petitioner Nos. 1 to 7 at Sl. Nos. 19 to 25 and against the 37 vacancies for which 36 candidates had been recommended, it placed the Petitioner Nos. 8 and 9 at Sl. Nos. 1 and 2 thereof.
6. By reason of the said letter, the PSC requested the Judicial Department to verify the eligibility of the candidates on the basis of the original Certificates/documents filed by them. It was also informed that the medical examinations and antecedents of the candidates had however not been conducted and therefore appropriate action in that regard was requested to be taken.
7. It is stated that on the basis of the aforementioned letter dated 30.11.2009, the medical verifications of the selected candidates were completed on 21.12.2009 and, upon completion of other formalities, the Respondent Nos. 4 and 5 (Principal Secretary-in-charge, Judicial Department and the Secretary, Judicial Department respectively), caused a Notification to be published on 21.1.2010 (Annexure-P/4) whereby and whereunder 25 candidates out of the first category were appointed under List-A (in respect of the clear vacancies of 26) and a further two candidates were also appointed under List-B (in respect of the vacancies that may arise out of resignation and died in harness).
8. Upon a perusal of the aforementioned Notification, it would appear that the names of the Petitioner Nos. 1 to 7 were placed under List-A between Sl. Nos. 19 and 25 and the names of the Petitioner Nos. 8 and 9 were enlisted under List-B at Sl. Nos. 1 and 2. It is stated that the said Notification dated 21.1.2010 was forwarded to each of the persons mentioned therein including the Petitioners with an instruction that they should all await receipt of Order about their posting from the Registrar (Judicial Service), Appellate Side
