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IN THE HIGH COURT OF CALCUTTA
Nishita Mhatre, Asha Arora, JJ.
Rivu Dutta - Appellant
Versus
State of West Bengal and Ors. - Respondents
F.M.A. Nos. 4416, 4417, 4418, 4420, 4422, 4439, 4440, 4441 of 2014 with A.S.T. Nos. 38, 46, 47 of 2014 with F.M.A. No. 169 of 2015
Decided On : 24-09-2015
WRIT PETITION - DELAY AND LACHES - APPOINTMENT OF CIVIL JUDGE (JUNIOR DIVISION)/JUDICIAL MAGISTRATE - WEST BENGAL JUDICIAL SERVICE - RECRUITMENT - IRREGULARITIES IN APPOINTMENT PROCESS - DIVERSION OF VACANCIES - LEGITIMATE EXPECTATION - RIGHT TO APPOINTMENT - MANDATORY APPOINTMENT - ARBITRARY ACTION - VIOLATION OF ARTICLES 14 AND 16(1) OF THE CONSTITUTION - CREATION OF SUPERNUMERARY POSTS - OVER-AGE CANDIDATES - MERITORIOUS CANDIDATES - ZONE OF CONSIDERATION - REDEMPTION OF HIGH COURT'S ILLEGALITY.
Fact of the Case:
Appellants participated in the examination for the post of Civil Judge (Junior Division)/Judicial Magistrate in the West Bengal Judicial Service. All except a few were selected but were not issued appointment orders. They filed writ petitions under Article 226 of the Constitution of India, which were dismissed due to delay and laches. The appellants challenged the decision in appeals.
Finding of the Court:
1. The Administrative Committee of the High Court erred in diverting vacancies of one year to another, resulting in the non-issuance of appointment orders to the appellants. 2. The appellants' delay in approaching the Court cannot be justified, as they were aware of the judgment of the Division Bench in Manabendra Nath Ghosh (supra) delivered on 12.09.2011. 3. The appellants have no absolute right to be appointed, as Rule 9 of the West Bengal Judicial (Conditions of Service) Rules, 2004 only provides that each candidate shall be considered for appointment subject to other provisions of the Rules. 4. The appellants' legitimate expectations of being appointed based on their inclusion in the select list are unfounded. 5. The State and the High Court's action in diverting vacancies and regularizing irregular appointments was arbitrary and contrary to settled legal principles, but it is too late to seek a declaration to oust those already appointed. 6. Creating supernumerary posts to accommodate the appellants is not a viable solution, as the vacancies for 2009 have been filled, and the appellants are not similarly circumstanced as the 9 candidates who were granted relief by the Supreme Court. 7. The appellants' argument that they would have been appointed if there was no diversion is speculative. 8. The appellants are not entitled to any relief on merits, as their ranks in the select list do not fall within the zone of consideration for the available vacancies. 9. The appellants' request to be appointed against vacancies arising in 2016 is not supported, as the High Court's practice of accommodating successful candidates of one year in the following year has been criticized by the Division Bench in Manabendra Nath Ghosh (supra).
Issues: 1. Whether the appellants have a right to be appointed to the post of Civil Judge (Junior Division)/Judicial Magistrate despite the delay in approaching the Court? 2. Whether the appellants have a mandatory right to be appointed based on their inclusion in the select list? 3. Whether the State and the High Court's action in diverting vacancies and regularizing irregular appointments was arbitrary and violative of Articles 14 and 16(1) of the Constitution? 4. Whether supernumerary posts should be created to accommodate the appellants? 5. Whether the appellants are entitled to be appointed against vacancies arising in 2016?
Ratio Decidendi: 1. Delay and laches in approaching the Court can be a bar to relief, even if the appellants' rights were violated. 2. The appellants do not have an absolute right to be appointed, as appointments are subject to available vacancies and other provisions of the Rules. 3. The State and the High Court's action in diverting vacancies and regularizing irregular appointments was arbitrary and contrary to settled legal principles, but it is too late to seek a declaration to oust those already appointed. 4. Creating supernumerary posts to accommodate the appellants is not a viable solution, as the vacancies for 2009 have been filled, and the appellants are not similarly circumstanced as the 9 candidates who were granted relief by the Supreme Court. 5. The appellants' argument that they would have been appointed if there was no diversion is speculative. 6. The appellants are not entitled to any relief on merits, as their ranks in the select list do not fall within the zone of consideration for the available vacancies.
Final Decision: The appeals are dismissed.
Nishita Mhatre, J.
The appellants have all participated in the examination conducted for appointment to the post of Civil Judge (Junior Division)/Judicial Magistrate in the West Bengal Judicial Service. All except the appellants in FMA No. 4418 of 2014, AST No. 38 of 2014, AST No. 46 of 2014 and AST No. 47 of 2014 were selected. However, none of them were issued appointment orders which prompted them to file writ petitions under Article 226 of the Constitution of India. The writ petitions were dismissed on account of the delay and laches in filing the same. Aggrieved by the decision of the learned single judge the appellants have preferred the present appeals.
2. The issues agitated before us arise in the following manner:
The cadre strength of Civil Judges (Junior Division) was increased in the State of West Bengal from 351 judges to 375, with the approval of the Cabinet and the Finance Department of the Government of West Bengal in the year 2008. A resolution was passed by the Administrative Committee of the Calcutta High Court on 28th October, 2009 noting that there was no proper consultation with the High Court by the State Government within the meaning of Rule 8 of the West Bengal Judicial (Conditions of Service) Rules, 2004. The Committee considered the hardship which could be caused to the persons who had been appointed in breach of the provisions of the aforesaid Rule and allowed the posting of 51 candidates vide a Notification issued by the Court on 21st November, 2009. Resultantly the strength of cadre of Civil Judge (Junior Division)/Judicial Magistrate rose to 357 which was in excess of the sanctioned strength of 351.
3. Earlier in the year, adhering to the time schedule prescribed by the Supreme Court in Malik Mazhar Sultan & Anr. v. U.P. Public Service Commission & Ors reported in (2008) 17 SCC 703 for holding examinations for recruitment to the aforesaid post of judicial officers, the High Court informed the Public Service Commission, West Bengal (for short 'PSC') that there were 26 clear vacancies for the year 2009 and 37 anticipated vacancies which could arise due to death, voluntary retirement, resignation or unwillingness of the selected candidate to join service. Accordingly the PSC advertised the vacant posts on 1st February 2009. The select list of 114 successful candidates was published in November 2009 and forwarded to the High Court for necessary action. The Public Service Commission recommended the names of 61 candidates for appointment in 2009; 25 candidates as Civil Judge (Junior Division) in the West Bengal Judicial Service against the 26 vacancies and 2 persons against the future vacancies as described in Malik Mazhar Sultan (supra). The Registrar (Judicial Service), High Court, Calcutta by his letter dated 27th January, 2010 to the Secretary-in-Charge (Judicial Department), Government of West Bengal, requested the State to process the appointment of 18 candidates who were successful and to keep the remaining 9 candidates on the waiting list for being considered against the vacancies that could arise due to death, voluntary retirement or resignation of the existing officers or if the selected candidates were unwilling to accept the appointment.
4. A group of 9 candidates, being aggrieved by the decision of the High Court, not to issue posting orders to them challenged the decision before this Court by filing a writ petition. This writ petition was dismissed by the learned single Judge holding that they had no right to be posted. This decision was challenged before the Division Bench in Manabendra Nath Ghosh v. The Hon'ble High Court at Calcutta & Ors., [APOT No. 260 of 2011]. The Division Bench found that apart from 26 clear vacancies and 37 anticipated vacancies notified by the High Court, 42 officers had been promoted in the year 2009 from the post of Civil Judge (Junior Division) to Civil Judge (Senior Division). As a result there were 42 more vacancies available which were required to be
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