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2017 Supreme(Cal) 587
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
DEBASISH KAR GUPTA, MD. MUMTAZ KHAN, JJ.
Plaban Mukherjee & Others - Appellant
Versus
The Hon’ble High Court at Calcutta & Others - Respondents
FMA No. 123 of 2014 (Appellate Side)
Decided On : 16-06-2017
For the Appearing Parties : Rameswar Bhattacharya, Soumen Bhattacharya, Alok Ghosh, Pradip Kr. Roy, Srabani Sarkar
The main legal point established in the judgment is the calculation and filling up of vacancies in the West Bengal Judicial Service in the cadre of Civil Judge (Junior Division)/Judicial Magistrate etc. initiated by virtue of West Bengal Judicial Service Examination, 2010, and the adherence to the guideline framed by the Apex Court in the decision of Malik Mazhar Sultan (3) (supra) for filling up the anticipated vacancies in the said West Bengal Judicial Service.
Headnote:
Recruitment - West Bengal Judicial Service - West Bengal Judicial Service Examination, 2010 - [Recruitment] - [West Bengal Judicial Service] - [West Bengal Judicial (Condition of Service) Rules, 2004, Rules 6, 8, 9] - The court examined the validity of the action on the part of the respondents in the matter of recruitment to the post in the West Bengal Judicial Service in the cadre of Civil Judge (Junior Division)/Judicial Magistrate etc. initiated by virtue of West Bengal Judicial Service Examination, 2010. The vacancies declared by advertisement no.03/2010 dated March 6, 2010 were calculated as 35 anticipating the incidents of retirement/promotion of West Bengal Judicial Service Officers from the cadre of Civil Judge (Junior Division)/Judicial Magistrate etc. and the number of vacancies which might arise due to death, voluntary retirement, resignation or unwillingness to join the service by selected candidates was 10. The Administrative Committee of the High Court in its meeting held on January 12, 2011 considered the actual number of vacancies for the year 2010 in the said Judicial Service and adopted a resolution that the actual vacancy being (22+1) = 23 only (inclusive all) which can be filled up from amongst the allotted candidates of West Bengal Judicial Service Examination, 2010 after offering them due appointment by the Judicial Department, Government of West Bengal. The Full Court subsequently confirmed the above resolution and the above fact was communicated by the Registrar (Judicial Service) to the State Government on the basis of which appointment letters were issued to 22 (twenty two) candidates. The selection process for filling up the anticipated vacancies in the said West Bengal Judicial Service which might arose subsequently in the year 2011, adhering to guideline framed by the Apex Court in the decision of Malik Mazhar Sultan (3) (supra), the advertisement no.04/2011 dated April 12, 2011 was issued inviting applications from eligible candidates in prescribed proforma in respect of 73 (seventy three) anticipated vacancies for the year 2011. There was, in fact, no actual vacancy in respect of the posts belonging to the said Judicial Service.
Fact of the Case:
The appeal was directed against a judgment dated June 21, 2013 passed in the writ applications bearing W.P. Nos.8446 (W) of 2011 and W.P. 565 (W) of 2012. The subject matter of challenge in the above writ applications was the validity of the action on the part of the respondents in the matter of recruitment to the post in the West Bengal Judicial Service in the cadre of Civil Judge (Junior Division)/Judicial Magistrate etc. initiated by virtue of West Bengal Judicial Service Examination, 2010. The selection process in question for recruitment to the posts in Judicial Service in the cadre of Civil Judge (Junior Division)/Judicial Magistrate etc. was initiated under advertisement No. 03/2010 dated March 6, 2010, inviting applications from the eligible candidates in prescribed proforma for the following vacancies.
Finding of the Court:
The court examined the validity of the action on the part of the respondents in the matter of recruitment to the post in the West Bengal Judicial Service in the cadre of Civil Judge (Junior Division)/Judicial Magistrate etc. initiated by virtue of West Bengal Judicial Service Examination, 2010. The court found that the vacancies declared by advertisement no.03/2010 dated March 6, 2010 were calculated as 35 anticipating the incidents of retirement/promotion of West Bengal Judicial Service Officers from the cadre of Civil Judge (Junior Division)/Judicial Magistrate etc. and the number of vacancies which might arise due to death, voluntary retirement, resignation or unwillingness to join the service by selected candidates was 10. The Administrative Committee of the High Court in its meeting held on January 12, 2011 considered the actual number of vacancies for the year 2010 in the said Judicial Service and adopted a resolution that the actual vacancy being (22+1) = 23 only (inclusive all) which can be filled up from amongst the allotted candidates of West Bengal Judicial Service Examination, 2010 after offering them due appointment by the Judicial Department, Government of West Bengal. The Full Court subsequently confirmed the above resolution and the above fact was communicated by the Registrar (Judicial Service) to the State Government on the basis of which appointment letters were issued to 22 (twenty two) candidates. The selection process for filling up the anticipated vacancies in the said West Bengal Judicial Service which might arose subsequently in the year 2011, adhering to guideline framed by the Apex Court in the decision of Malik Mazhar Sultan (3) (supra), the advertisement no.04/2011 dated April 12, 2011 was issued inviting applications from eligible candidates in prescribed proforma in respect of 73 (seventy three) anticipated vacancies for the year 2011. There was, in fact, no actual vacancy in respect of the posts belonging to the said Judicial Service.
Issues: The issues involved in the case were the validity of the action on the part of the respondents in the matter of recruitment to the post in the West Bengal Judicial Service in the cadre of Civil Judge (Junior Division)/Judicial Magistrate etc. initiated by virtue of West Bengal Judicial Service Examination, 2010 and the calculation and filling up of vacancies in the said Judicial Service.
Ratio Decidendi: The court found that the vacancies declared by advertisement no.03/2010 dated March 6, 2010 were calculated as 35 anticipating the incidents of retirement/promotion of West Bengal Judicial Service Officers from the cadre of Civil Judge (Junior Division)/Judicial Magistrate etc. and the number of vacancies which might arise due to death, voluntary retirement, resignation or unwillingness to join the service by selected candidates was 10. The Administrative Committee of the High Court in its meeting held on January 12, 2011 considered the actual number of vacancies for the year 2010 in the said Judicial Service and adopted a resolution that the actual vacancy being (22+1) = 23 only (inclusive all) which can be filled up from amongst the allotted candidates of West Bengal Judicial Service Examination, 2010 after offering them due appointment by the Judicial Department, Government of West Bengal. The Full Court subsequently confirmed the above resolution and the above fact was communicated by the Registrar (Judicial Service) to the State Government on the basis of which appointment letters were issued to 22 (twenty two) candidates. The selection process for filling up the anticipated vacancies in the said West Bengal Judicial Service which might arose subsequently in the year 2011, adhering to guideline framed by the Apex Court in the decision of Malik Mazhar Sultan (3) (supra), the advertisement no.04/2011 dated April 12, 2011 was issued inviting applications from eligible candidates in prescribed proforma in respect of 73 (seventy three) anticipated vacancies for the year 2011. There was, in fact, no actual vacancy in respect of the posts belonging to the said Judicial Service.
Final Decision: The appeal was dismissed with no order as to costs.
Debasish Kar Gupta, J.
1. This appeal is directed against a judgment dated June 21, 2013 passed in the writ applications bearing W.P. Nos.8446 (W) of 2011 and W.P. 565 (W) of 2012.
2. The subject matter of challenge in the above writ applications was the validity of the action on the part of the respondents in the matter of recruitment to the post in the West Bengal Judicial Service in the cadre of Civil Judge (Junior Division)/Judicial Magistrate etc. initiated by virtue of West Bengal Judicial Service Examination, 2010 (hereinafter referred to as the said Examination, 2010).
3. The selection process in question for recruitment to the posts in Judicial Service in the cadre of Civil Judge (Junior Division)/Judicial Magistrate etc. (hereinafter referred to as the said Judicial Service) was initiated under advertisement No. 03/2010 dated March 6, 2010, inviting applications from the eligible candidates in prescribed proforma for the following 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 (vacancies reserved for ST for the year 2008 were carried forward) = 06, and PH – 01).
(b) The number of vacancies which might arise due to death, voluntary retirement, resignation or unwillingness to join the service by selected candidates – 10 (Unreserved – 08, BC – 01, SC – 01).
4. After conducting the said Examination, 2010, in three phases, i.e. Preliminary Examination, Written Examination and Personality Test, a select list consisting of the names of 82 candidates qualified on the results of the said Examination, 2010, for recruitment in the said Judicial Service was published by the respondent Commission under announcement no. 231 P.S.C/Con. IIA on December 21, 2010. The names of the appellants appeared in the above select list against serial nos. 16, 17, 18, 20, 21 and 23 respectively.
5. The respondent Commission by a communication issued under memo. No. A-170 - P.S.C. (A) dated December 21, 2010, addressed to the Secretary-in-charge to the Government of West Bengal, Judicial Department, recommended the names of 33 (thirty three) qualified candidates from the above select list out of 35 (thirty five) vacancies as had been declared by the advertisement no.03/2010 dated April March 6, 2010. The above letter contained that allotment against 1 (one) vacancy under PH category could not be made due to non-availability of qualified candidate and allotment against 1(one) vacancy under ST category out of 6 vacancies under that category could not be made in view of an order dated November 23, 2010, passed in W.P. No. 18836 (W) of 2010. The names of the appellants appeared therein against serial Nos. 16, 17, 18, 20, 21 and 23 respectively.
6. By a subsequent communication issued under memo. No. 210-A dated January 13, 2011, the Registrar (Judicial Service), High Court, Calcutta, Appellate Side, furnished actual vacancy position in the said Judicial Service for the year 2010 to the Principal Secretary-in-Charge to the Government of West Bengal, Judicial Department, as directed by the High Court. The above communication contained that it had been resolved by the High Court that the actual number of vacancies in respect of the above post for the year 2010 was 23 inclusive of all categories which could be filled up from amongst the allotted candidates on the basis of the result of the said Examination, 2010. The above letter further contained with regard to the vacancy position in the rank of Civil Judge (Junior Division)/Judicial Magistrate for the year 2011, that the High Court had been pleased to resolve the anticipated vacancy to be 73 (seventy three) as there was no clear vacancy for that year.
7. The Secretary-in-Charge to the Government of West Bengal, Judicial Department, in his turn, informed the respondent Commission the revis
