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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
DEBANGSU BASAK, J.
Parth Sarathi Sen & Others - Petitioners
Versus
Registrar General, High Court, Calcutta & Others - Respondents
No : W.P. No. 8027 (W) of 2017
Decided On : 12-05-2017
SERVICE LAW - WEST BENGAL JUDICIAL (CONDITIONS OF SERVICE) RULES, 2004 - GRADATION LIST - SENIORITY - ROSTER SYSTEM - DIRECT RECRUITMENT - PROMOTION - SELECTION - APPOINTMENT - DATE OF BIRTH IN THE CADRE - DATE OF OCCURRENCE OF VACANCY - 40 POINT ROSTER SYSTEM - ANDHRA PRADESH MODEL - DRAFT GRADATION LIST - WRIT PETITION - MAINTAINABILITY - PREMATURE - INTERIM RELIEF - STAY - REFUSED.
Fact of the Case:
The petitioners, who are Judicial Officers in the cadre of District Judge (Entry Level), challenged a letter circular issued by the High Court administration, which published a draft gradation list of Judicial Officers for the post of District Judge (Entry Level). The petitioners contended that the draft gradation list was not prepared in accordance with the West Bengal Judicial (Conditions of Service) Rules, 2004 (the Rules of 2004).
Finding of the Court:
The Court held that the writ petition was maintainable and not premature. The Court further held that the 40 Point Roster system read with the Andhra Pradesh model would apply for the purpose of fixation of seniority inter se amongst the appointees to the post of District Judge (Entry Level). The Court also held that the seniority is to be reckoned from the date of appointment to the post of a District Judge (Entry Level). The Court further held that the draft gradation list circulated by the impugned letter circular was not in accordance with the Rules of 2004.
Issues: 1. Whether the writ petition is maintainable and not premature? 2. Whether the 40 Point Roster system read with the Andhra Pradesh model would apply for the purpose of fixation of seniority inter se amongst the appointees to the post of District Judge (Entry Level)? 3. Whether the seniority is to be reckoned from the date of appointment to the post of a District Judge (Entry Level)? 4. Whether the draft gradation list circulated by the impugned letter circular is in accordance with the Rules of 2004?
Ratio Decidendi: 1. A writ petition is not maintainable if it is premature. However, in the present case, the Court held that the writ petition was maintainable and not premature as the petitioners were aggrieved by the publication of draft gradation list in which the petitioners did not figure at all. The petitioners’ contention that, the draft gradation list is not in accordance with the Rule of 2004 at all required consideration. 2. The Court held that the 40 Point Roster system read with the Andhra Pradesh model would apply for the purpose of fixation of seniority inter se amongst the appointees to the post of District Judge (Entry Level) as the High Court administration had adopted the Andhra Pradesh model in preference over the Orissa model for the purpose of fixation of seniority. 3. The Court held that the seniority is to be reckoned from the date of appointment to the post of a District Judge (Entry Level) as the Rules of 2004 prescribe that, the seniority of Higher Judicial Officers in the rank of District Judges appointed to the post as referred to in Clause (a), (b) and (c) of Sub-rule (1) of Rule 24 shall be determined in accordance with (a) the date of continuous officiation in case of officers promoted to the post as referred to in Clause (a) of Sub-rule (1) of Rule 24; (b) the date of order of appointment in the case of direct recruit to the posts as referred to in Clause (a) of Sub-rule (1) of Rule 24; (c) the date of order of selection to posts as referred to in Clause (b) and (c) respectively of Sub-rule (1) of Rule 24 or such date, as may be specified by the High Court. 4. The Court held that the draft gradation list circulated by the impugned letter circular was not in accordance with the Rules of 2004 as the impugned letter circular containing the draft gradation list was not in accordance with the 40 Point Roster system read with the Andhra Pradesh model.
Final Decision: The Court set aside the impugned letter circular and directed the High Court administration to prepare the gradation list, for all the appointees of 2009 to the post of District Judge (Entry Level) by taking the date of their appointment to such post as at October 28, 2009, in terms of the Rules of 2004 read with the Andhra Pradesh Model. The Court also refused to stay the judgment and order.
1. The petitioners have challenged a letter Circular bearing No. 4139-R (JS) dated November 29, 2016 issued by the High Court administration.
2. By such letter circular, the administration has published a draft gradation list of Judicial Officers for the post of District Judge (Entry Level). According to the petitioners, the draft gradation list published under cover of the impugned circular has not been prepared in accordance with the West Bengal Judicial (Conditions of Service) Rules, 2004.
3. Learned Senior Advocate appearing for the petitioners has submitted that, the petitioners are Judicial Officers in the cadre of District Judge (Entry Level). The petitioners are direct recruits to the post of District Judge (Entry Level). They were recruited in the year 2009. The draft gradation list published by the impugned circular deals with the appointees to the post of District Judge (Entry Level) in the year 2009. The petitioners do not find their place in the draft gradation list. On such score alone, the impugned draft gradation list is bad as the petitioners as direct recruitees are to be placed in a draft gradation list dealing with the year 2009.
4. Learned Senior Advocate for the petitioners has referred to the West Bengal Judicial (Conditions of Service) Rules, 2004 (hereinafter referred to as the Rules of 2004 for the sake of convenience). He has submitted that, the Rules of 2004 was promulgated subsequent to and in fact consequent upon a direction issued by the Hon’ble Supreme Court of India in the decision reported at 2002 Volume 4 Supreme Court Cases page 247 (All India Judges’ Association & Ors. v. Union of India & Ors.). The Rules of 2004 prescribe that the Higher Judicial Officer in the rank of District Judges would include the posts of District Judge (Entry Level), District Judge in selection grade and District Judge in super time pay scale in forming the cadre. The Rules of 2004 have came into effect from October 1, 2004. On and from October 1, 2004, the recruitment to the post of District Judge (Entry Level) has to be effected in terms of the Rules of 2004. The Rules of 2004 prescribe three avenues of appointment to such post namely, by way of direct recruitment from the Bar, by way of selection through promotion on the basis of merit cum seniority and on passing of a suitability test from amongst such Judicial Officers other than District Judges as mentioned in Rules 6(1)(b) and by promotion strictly on the basis of merit through limited competitive examination of such officers other than District Judges as mentioned in Rule 6(1)(b) of the Rules of 2004. No other method of appointment to the post of District Judge (Entry Level) is permissible after the Rules of 2004 have come into effect.
5. A 40 Point roster system read with the Andhra Pradesh model governs the seniority amongst the appointees made under the Rules of 2004. Rules 24, 26 and 31 have been referred to in support of such contentions. Referring to Rule 31 of the Rules of 2004, learned Senior Advocate for the petitioners has submitted that, the seniority of a direct recruit to the post of District Judge (Entry Level) is to be considered from the date of appointment of such person to such post and not from the date of permission granted by the State Government to appoint such person to such post. In respect of the jump promotees and direct recruits, the date of the order of selection to the post of District Judge (Entry Level) is to govern their seniority. Seniority cannot be claimed from the date when the vacancies had accrued. An appointment to the post does not relate back to the date of vacancy. Reliance has been placed on All India Reporter 2000 Supreme Court page 85 (Ajit Kumar Rath v. State of Orissa) in support of such proposition. Referring to the impugned Circular, learned Senior advocate for the petitioners has submitted that, the
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