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2016 Supreme(Cal) 359
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Dipankar Datta, J.
Sri Samar Roy & ors. - Petitioners
Vs.
The Hon’ble High Court at Calcutta & ors. - Respondents
W.P. No. 22564(W) of 2011
Decided On : 16-08-2016
For the Petitioners: Mr. Partha Sarathi Sengupta, Mr. Soumya Majumder, Mr. Sunny Nandy.
For the Respondents: Mr. Joydeep Kar, Mr. Siddhartha Banerjee, Mr. Jaharlal De, Mr. Shyamal Kumar De, Mr. Bikash Ranjan Bhattacharya, Mr. Rahul Karmakar, Ms. Debasree Dhamali.
Promotions granted to judicial officers to man Fast Track Courts (FTCs) under a scheme to clear the backlog of long-pending cases were held to be ad hoc and not regular, and the petitioners were not entitled to claim seniority in the cadre of District Judge (Entry Level) from the dates they served as FTC judges.
Headnote:
This writ petition filed by 22 disgruntled members of the West Bengal Judicial Service (W.B.J.S.) seeks to restore their seniority by challenging the perceived step-motherly treatment accorded by the High Court administration. The petitioners, promoted to the W.B.H.J.S. in 2003-2004, were posted as judges of Fast Track Courts (FTCs) created under a scheme to clear the backlog of long-pending cases. The scheme envisaged ad hoc promotions from eligible judicial officers for manning the FTCs, as per directions issued by the Supreme Court in Brij Mohan Lal vs. Union of India (2002) 5 SCC 1. The petitioners contend that their promotions were regular and not ad hoc, and that they are entitled to seniority from the dates they served as FTC judges. The High Court administration, on the other hand, maintains that the promotions were ad hoc and that the petitioners are not entitled to the claimed seniority.
Fact of the Case:
1. Petitioners, members of West Bengal Judicial Service (W.B.J.S.), filed a writ petition challenging the perceived step-motherly treatment accorded by the High Court administration. 2. Petitioners were promoted to W.B.H.J.S. in 2003-2004 and posted as judges of Fast Track Courts (FTCs) created under a scheme to clear the backlog of long-pending cases. 3. The scheme envisaged ad hoc promotions from eligible judicial officers for manning the FTCs, as per directions issued by the Supreme Court in Brij Mohan Lal vs. Union of India (2002) 5 SCC 1. 4. Petitioners contend that their promotions were regular and not ad hoc, and that they are entitled to seniority from the dates they served as FTC judges. 5. The High Court administration maintains that the promotions were ad hoc and that the petitioners are not entitled to the claimed seniority.
Finding of the Court:
1. The Court held that the promotions of the petitioners were ad hoc and not regular, and that the petitioners cannot claim that their seniority in the cadre of District Judge (Entry Level) ought to be counted from the respective dates they took over as judges of the FTCs.
Issues: 1. Whether the promotions of the petitioners to the W.B.H.J.S. in 2003/2004 were adhoc or regular? 2. Whether the petitioners have a legitimate claim for counting of seniority in the cadre of District Judge (Entry Level) from the dates they took charge as judges of the FTCs? 3. Whether the petitioners can claim parity with the said 4 (four) judicial officers? 4. Whether the petitioners can legitimately claim any benefit flowing from the representation contained in Notification No. 6745-RG dated May 15, 2009? 5. Whether the petitioners, by reason of their conduct, can at all raise any grievance at this distant point of time with regard to counting of their seniority from the dates they have been serving as judges of the FTCs?
Ratio Decidendi: 1. The Supreme Court, in Brij Mohan Lal vs. Union of India (2002) 5 SCC 1, held that the promotions to the judges of the FTCs would be ad hoc, since the scheme did not envisage creation of posts. 2. The petitioners' first posting orders, issued on their promotion to the W.B.H.J.S. in 2003/2004, clearly expressed the promotions to be on an ad hoc basis. 3. The petitioners did not challenge the scheme or their ad hoc promotions at the relevant time. 4. The petitioners' claim for seniority from the dates they served as FTC judges is not supported by any provision of law or the Rules governing the conditions of service of judicial officers. 5. The petitioners are not entitled to claim parity with the said 4 (four) judicial officers, who were absorbed/regularized in the W.B.H.J.S. on the basis of a different set of circumstances. 6. The petitioners cannot claim any benefit flowing from the representation contained in Notification No. 6745-RG dated May 15, 2009, as they did not participate in the limited competitive examination conducted pursuant to that notification. 7. The petitioners' conduct in participating in the process of promotion by selection in 2009 without demur and without raising any objection to their ad hoc promotions or the seniority list prepared by the High Court administration estops them from challenging the same at this distant point of time.
Final Decision: The writ petition was dismissed.
1. This writ petition dated December 22, 2011 is at the instance of 22 (twenty two) disgruntled members of the West Bengal Judicial Service (hereafter the W.B.J.S.), presented on December 23, 2011. While complaining of perceived step motherly treatment accorded by the administration of this Court to them, the petitioners have prayed for ameliorative relief to restore their seniority thereby enabling them discharge their judicial and administrative functions without any sense of deprivation. It is noted that by the time this Bench had the occasion to consider applications for addition of parties filed in connection with the writ petition on July 15, 2016 and thereafter proceeded with final hearing, the petitioners 1 – 3, 8 and 9 had retired from service on attaining the age of superannuation while the petitioner no.10 proceeded on voluntary retirement w.e.f. September 20, 2014. It is also noted that a couple of petitioners and one of the added respondents are now members of the registry of this Court.
2. Tracing the genesis of the controversy raised by the petitioners would necessitate walking down memory lane when the Fast Track Court Scheme (hereafter the scheme) was conceived and introduced for clearing backlog of cases in courts, mainly long pending cases in the Sessions Courts and cases of under-trial prisoners, by the Central Government based on the recommendation of the Eleventh Finance Commission. The scheme, envisaging creation of 1734 (seventeen hundred thirty four) Fast Track Courts (hereafter FTCs) in the country with funds to be provided by the Ministry of Finance, was to continue initially for 5 (five) years i.e. till March 31, 2005. It was the primary responsibility of the State Governments to establish the FTCs in consultation with the respective High Courts. However, the scheme viz. the constitution of the FTCs and policy of appointment of its Presiding Officers came to be challenged in the Punjab and Haryana High Court as well as the Andhra Pradesh High Court in writ petitions, primarily on the ground that there was no constitutional sanction for employment of retired judges to man the FTCs and effective guidelines were not in operation. It was also highlighted that infrastructural facilities were not available so as to make the scheme a reality. Several other deficiencies were also pointed out. A plea was raised that instead of retired officers, eligible members of the Bar should be considered for appointment. The Union of India had approached the Supreme Court seeking transfer of such cases and by its order dated August 3, 2001 reported in (2012) 6 SCC 580 (Union of India vs. Brij Mohan Lal), the Supreme Court transferred such cases for consideration by it. By the same order, the Court permitted intervention by other parties who might have filed similar writ petitions in different High Courts. Thereafter, the Court proceeded to hear and dispose of the same by a common judgment dated May 6, 2002 reported in (2002) 5 SCC 1 (Brij Mohan Lal vs. Union of India). The Court was of the opinion, keeping in view the laudable objects of the scheme, that certain directions for taking care of the initial teething problems highlighted by the parties are necessary and accordingly, issued several directions. A few of the directions, which are considered relevant, are reproduced below:
“Directions by the Court
1. The first preference for appointment of judges of the Fast Track Courts is to be given by ad hoc promotions from amongst eligible judicial officers. While giving such promotion, the High Court shall follow the procedures in force in the matter of promotion to such posts in Superior/Higher Judicial Services.
7. After ad hoc promotion of judicial officers to the Fast Track Courts, the consequential vacancies shall be filled up immediately by organizing a special recruitment drive. Steps should be taken in
