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High Court of Judicature at Calcutta
ANIRUDDHA BOSE, J.
Plaban Mukherjee & Others
Versus
The Honourable High Court At Calcutta & Others
W.P. 8446 (W)_of 2011 with GA 543 of 2012 with W.P. 565 of 2012 (Appellate Side)
Decided On : 21-06-2013
APPOINTMENT - Judicial Officers - Selection - Advertisement of vacancies - Interpretation - Petitioners, candidates for Civil Judge (Junior Division) posts, participated in selection process undertaken in 2010 - Advertisement invited applications for 35 vacancies - Petitioners' names appeared in select list of 82 candidates - Petitioners expected appointment but only 23 candidates were appointed including reserve categories - Petitioners challenged exclusion - Held, number of vacancies advertised were anticipated vacancies - Actual number of vacancies could be found out later on depending on number of officers who could actually be given promotion and posting - Petitioners did not have any vested legal right to maintain writ petition as empanelment or position in select list cannot confer any right of appointment to candidate - Petitions dismissed.
Fact of the Case:
Petitioners were candidates for the posts of Civil Judge (Junior Division) who participated in a selection process undertaken in the year 2010. The advertisement inviting applications for these posts was issued by the Public Service Commission, West Bengal, numbered 3 of 2010, and date of issue was 6th March, 2010. In W.P. No. 8446 (W) of 2011, originally there were eleven petitioners. During pendency of hearing of these proceedings, three of them were given appointment and hence they withdrew from this litigation. Two other petitioners being the petitioner nos. 9 and 11 also subsequently chose not to prosecute the writ petition. Their names as petitioners thus were deleted by direction of this Court.
Finding of the Court:
1. Petitioners did not have any vested legal right to maintain writ petition as empanelment or position in select list cannot confer any right of appointment to candidate. 2. Vacancy does not occur immediately on issue of the order of promotion, as unless the concerned officer is released from his subsisting post, the authorities do not have the scope of appointing any person in that post. 3. There were actually twenty three vacancies that occurred in the year 2010 in the cadre of Civil Judge (Junior Division) or Judicial Magistrates under the West Bengal Judicial Service.
Issues: 1. Whether petitioners had a vested legal right to maintain writ petition? 2. Whether there were actually thirty five vacancies or not? 3. Whether it was permissible for the appointing authority in this case under the Rules to disclose anticipated vacancies only, without specifying the character of such vacancies?
Ratio Decidendi: 1. Mere empanelment cannot give rise to a vested legal right for a candidate to seek appointment in the post for which a merit list or select list is published. 2. One fact is clear to this Court that the manner in which the selection process was conducted, projection to the applicants or candidates was that there were actually thirty five vacancies and at no point of time the candidates had knowledge about the fact that these were anticipated or expected vacancies. 3. The questions to be addressed in these proceedings are twofold. The first is as to whether there were actually thirty five vacancies or not and secondly, whether it was permissible for the appointing authority in this case under the Rules to disclose anticipated vacancies only, without specifying the character of such vacancies.
Final Decision: Petitions dismissed.
The petitioners in these proceedings were all candidates for the posts of Civil Judge (Junior Division), who participated in a selection process undertaken in the year 2010. The advertisement inviting applications for these posts was issued by the Public Service Commission, West Bengal, numbered 3 of 2010, and date of issue was 6th March, 2010. In W.P. No. 8446 (W) of 2011, originally there were eleven petitioners. During pendency of hearing of these proceedings, three of them were given appointment and hence they withdrew from this litigation. Two other petitioners being the petitioner nos. 9 and 11 also subsequently chose not to prosecute the writ petition. Their names as petitioners thus were deleted by direction of this Court.
The controversy in these two writ petitions revolve around interpretation of the expression “vacancy” as specified in the said advertisement, as the case of the petitioners is that the authorities did not fill up all the vacancies, as advertised. The specification relating to vacancies, which was advertised, reads:-
“Vacancies:
(a) The number of vacancies arising in 2010 due to retirement/promotion of W.B.J.S. officers – 35 (Unreserved – 23, BC – 02, SC – 03, ST – 02+04*=06, and PH – 01) *04 vacancies reserved for S.T. for the year 2008 are carried forward.
(b) The number of vacancies which may arise due to death, voluntary retirement, resignation or unwillingness to join the service by selected candidates – 10 (Unreserved – 08, BC – 01, SC –
01).” Selection to the posts of Judicial Officers under the West Bengal Judicial Service is guided by the West Bengal Judicial (Conditions of Service), Rules, 2004. We are concerned in this proceeding with three provisions of the said Rules, and these are paragraphs 6, 8 and 9, which read:-
“6. Cadre:- (1) the Judicial Officers other than District Judge of the service as mentioned in Part-I, shall include the following posts forming the cadre namely:
(a) Civil Judge/Judicial Magistrate/Metropolitan Magistrate/Municipal Magistrate/Magistrate of the Juvenile Board:
(b) Chief Metropolitan Magistrate/Additional Chief Metropolitan Magistrate/Chief Judicial Magistrate/Additional Chief Judicial Magistrate/Senior Civil Judge/Assistant Sessions Judge/Sub-Divisional Judicial Magistrate/Senior Municipal Magistrate/The Judge, Presidency Small Causes Court/The Registrar, District Judge’s Court.
8. Appointment (I) the appointment to any of the posts as mentioned in clause (a) of sub-rule (1) of rule 6, shall be made by the Governor in accordance with the West Bengal Civil Service (Judicial) Recruitment Rules, published with this Department notification no. 1713-J, dated 31st March, 1951, as subsequently amended, after consultation with the High Court and the Commission.
(2) the appointment to any of the posts as mentioned in clause (b) of sub-rule (1) of rule 6, shall be made by way of selection through promotion from the posts as mentioned in clause (a) of sub-rule (1) of rule 6, by the High Court, on the basis of merit-cum-seniority.
Provided that the selection to the posts as mentioned in clause (b) of sub-rule (1) of rule 6, shall be made only on completion of six years service in the posts as mentioned in clause (a) of sub-rule (1) of rule 6, on the first day of January of the year in which selection is to be made.
9. LIST OF CANDIDATE RECOMMENDED BY COMMISSION:-
(1) The Commission shall, on the basis of the examination conducted by it, forward to the Government a list of qualified candidates in order of merit and such list shall be published for the general information.
(2) Subject to any other provision of these rules, each of such candidates shall be considered for appointment to the available vacant posts as mentioned in clause (a) of sub-rule (1) of rule 6, in the order in which their names appear in the merit list.”
The substantive provisions relating to appointment are contained in the said Rules, whereas the manner in which such appointment are to be made
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