Calcutta High Court
Purnendu Narayan Chakraborty vs The Hon'Ble The Chief Justice, High ... on 15 June, 1989
Equivalent citations: (1990)IILLJ116CAL
JUDGMENT Ajit Kumar Sengupta, J.
1. The writ petitioner, Purnendu Narayan Chakraborty, is a member of the Infest Bengal Civil Service (Judicial) and is currently posted as Assistant District Judge of Nadia. He has filed this petition under Article 226 of the Constitution of India against the Chief Justice of this Court and other concerned authorities. He says that he has been discriminated against and has been subjected to unfair treatment in relation to his service. His grievances are:-
(a) He has been superseded by many of his juniors at the stage of promotion from the grade of Judicial Magistrate or Munsiff to the next higher post of Sub-Divisional Judicial Magistrate;
(b) He has been denied the benefit of a higher scale of pay to which he was lawfully entitled.
2. He has prayed for quashing the various orders which resulted in such supersession and the order denying him the benefit of the higher scale. He has also prayed for re-fixation of his seniority in the rank of Assistant District Judge in accordance with law.
3. Inspite of several opportunities being granted no affidavit has been filed either on behalf of the authorities of this Court or the officers of the State Government or the State of West Bengal who have been impleaded as respondents.
4. It appears that on 12th February, 1987, I directed the writ petitioner to serve a copy of the application upon the respondents and pursuant to such direction the petitioner's Advocate-on-record communicated the said direction upon Mr. P.K. Chatterjee, Advocate for the respondents. Thereafter, on 14th December, 1987, when the matter appeared before Subhas Chandra Sen, J. as an adjourned application, Mr. Justice Sen gave directions for filing affidavit-in-opposition and affidavit-in-reply.
5. However, as directed, the relevant records of this Court relating to the petitioner have been produced and I have gone through these records. I also allowed the learned Advocate appearing for the petitioner to inspect the records so produced.
6. For appreciating the justifiability or otherwise of the grievances of the petitioner it is necessary to consider the factual background. I will first briefly indicate the tactual allegations made by the petitioner in his writ petition. Thereafter, I propose to record certain facts which appear from the records of this Court produced before me.
THE WRIT PETITION
7. On 22nd February, 1974 the petitioner joined the West Bengal Civil Service (Judicial) as a Munsiff. He was confirmed in service with effect from 22nd February, 1976. After his initial postings the petitioner was transferred and posted as Judicial Magistrate. Sealdah in the District of 24-Parganas (which is of the same rank as Munsiff) in May, 1978.
8. The Judicial Magistrate, Sealdah is under the control of the District Judge of 24-Parganas. The District Judges prepare and maintain Annual Confidential Reports (ACRs) on, inter alia, the merit of performance of the Munsiff Judicial Magistrates.
9. On 6th December, 1980 the petitioner received through the Additional Registrar (Appellate Side) of this Court extract of ACR prepared by the District Judge of 24-Parganas for the year 1978 stating that on 23rd December, 1978 the District Judge had paid surprise visit to the Court of the Judicial Magistrate at Sealdah and found the Court Room padlocked from outside with the internal lights on and that the District Judge had examined the petitioner's diary which did not give any idea of his hour of arrival, taking of judicial seat and rising from Court. The petitioner made a representation in writing on 15th December, 1980 against the remarks contained in the ACR.
10. In the last week of December, 1980 the petitoner was sent on deputation to Andaman & Nicobar Islands to work as Judicial Magistrate, First Class in the District of Andaman. While working as Judicial Magistrate, First Class at Maya Bandar in the Andamans, the petitioner received a memo dated 27th February, 1981 from the District and Sessions Judge of the Andamans & Nicobar Islands enclosing a communication from the Additional Registrar tc the effect that his representation dated 15th December, 1980 had been rejected.
11. In the meantime on 21st February, 1981 the petitioner received through the Additional Registrar another extract from the ACR prepared by the District Judge of 24-Parganas for the year 1979 stating that the quantity of work disposed of by the petitioner was 'inadequate'. According to the petitioner he could not make any representation against the comments in the ACR for 1979 because he was in the Andamans and a representation could only be effectively made on the basis of the records of the Court of Judicial Magistrate, Sealdah which for all practical purposes was not accessable to him in the Andamans.
12. While he was still posted in the Andamans on 11th March, 1982 the petitioner received through the Additional Registrar another extract from the ACR prepared by the Direct judge of 24-Parganas for the year 1980 with the same remark i.e., quantity of work disposed of by the petitioner was 'inadequate'. The petitioner says that for the same reasons put forward by him in relation to ACR for 1979 he was prevented from making any effective representation with regard to the comments in ACR for 1980. All the three adverse remarks in the ACRs for 1978, 1979 and 1980 were made by the same District Judge i.e., Shri N.K. Sen.
13. The petitioner was allowed to cross Efficiency Bar at the stage of Rs. 685/- in the scale of Rs.475- 1150/- with effect from 1st February, 1982.
14. By a Notification No. 103558 dated 27th August, 1983 the petitioner was posted as Metropolitan Magistrate, Calcutta. He has stated in the petition that although the post of Metropolitan Megistrate, Calcutta is of the same rank as that of the Munsiff substantively, the former has higher responsibilities attached to it than the post of Judicial Magistrate, First Class. In fact it is considered to be a special assignment and a speical pay of Rs.100/- per month is attached to the post of Metropolitan Magistrate, Calcutta in token of recognition of higher responsibility attached to it. He joined as Metropolitan Magistrate, Calcutta on 27th October, 1983.
15. By the impugned notification dated 1st April, 1985 Shri Sailendra Prosad Talukdar and Shri Sadhan Kumar Gupta (amongst others) were promoted as Sub-Divisional Judicial Magistrate of Asansol Sub-Division and Suri Sub-Division respectively. There is no dispute that Sailendra Prosad Talukdar and Sadhan Kumar Gupta were junior to Shri Chakraborty in service. This is evidenced by West Bengal Civil list (Vol.1) corrected as on 1st January, 1975 where in the seniority list of probationary Munisiffs the petitioner is shown as Serial No. 53 whereas Sailendra Prosad Talukdar and Sadhan Kumar Gupta occupy the position as Serial No. 54 and 55 respectively. The petitioner has assailed the validity of the notification dated 1st April, 1985 (Annexure 'K') to the writ petition on the ground that he has been superseded illegally and arbitrarily.
16. The written representation of the petitioner dated 29th April, 1985 addressed to the Additional Registrar complaining about his supersession was not replied to. In fact 9 more Munsiffs who were junior to the petitioner were given promotion to the next higher post even after his representation dated 29th April, 1985. The petitioner has given particulars of the 9 Officers who superseded him vide Annexure 'M' to the petition. The petitioner was ultimately promoted to the rank of Assistant District Judge in February, 1986.
17. The other grievance of the petitioner i.e., denial of benefit of higher scale is related to a Memo No. 12046. J/JIM-6/85 dated the 7th May, 1985.
By this memo the Government of West Bengal allowed the benefit of the higher scale of Sub-Divisional Judicial Magistrate/Subordinate Judge of Rs.1100-1900/- to 16 posts of Munsiffs on the basis of seniority and satisfactory service. This memo has been annexed as Annexure 'M' to the writ petition and the text thereof is quoted below:-
"Government of West Bengal Immediate Judicial Department.
From : Shri L.M. Ghosh, Secretary to the Government of West Bengal, Judicial Department.
To : The Accountant General, West Bengal, Treasury Buildings, Calcutta-1. No. 12046-J JIM-6/85 Dated the 7th May, 1985. Calcutta.
The undersigned is directed, by order of the Governor, to say that in Finance Department Notification No. 5690- F dated 28th July, 1981 promulgating the West Bengal Services (Revision of Pay and Allowance) Rules, 1981, the following revised pay scales have been prescribed for officers belonging to West Bengal Civil Service (Judicial) :-
(1) Munsiff/Judicial Magistrate - Rs. 660-1600/-
(2) Sub-Divisional Judicial Magistrate/Subordinate Judge (now re-designated as Assistant District Judge) - Rs. 1100-1900/-
2. Subsequently, a statement on promotion policy was issued by the Government on 5th August, 1981 affirming decision of Government for widening the scope of promotion by awarding the benefit of higher scale to the high judicial Servants at all levels.
3. The total Cadre-Strength of the West Bengal Civil Service (Judicial) stands at present at 445 out of which 320 posts belong to the rank of Munsiffs/Judicial Magistrates. The Governor has now been pleased to sanction the upgradation of the 4 (four) posts of Munsiff/Magistrates at Civil Courts at 24-Parganas, Howrah, Midnapore and Burdwan to the rank of Subordinate Judge (re-designated as Assistant District Judge) in the scale of pay of Rs. 1100-1900/- (i.e., Scale No. 13) out of the 320 posts of MunsirT/Judicial Magistrates in the cadre of West Bengal Civil Service (Judicial).
4. In pursuance of the statement on promotion policy referred to in paragraph 2 above, the Governor has further been pleased to allow the benefit of higher Scale No. 10 i.e., Rs.1100-1900/- to another 16 (sixteen) posts of Munsiffs out of the remaining 316 posts of Munsiff/Judicial Magistrate in the cadre of West Bengal Civil Service (Judicial) on the basis of seniority and satisfactory service. The Judicial Officers in the Scale No. 17 will be eligible for moving into Scale No. 10 i.e., Rs.1100-1900/- sanctioned herein after rendering atleast 6 years of satisfactory service.
5. The benefit sanctioned in para 4 above shall be available from 1st April, 1981. The benefit sanctioned in para 3 above shall, however, take effect from the date of issue of this order.
6. This order issues with the concurrence of Finance Department vide their unofficial Order No. Group Di/501 dated 25th April, 1985.
7. All concerned are being informed.
Sd/- L.M.Ghosh Secretary Judicial Department".
18. It is the case of the petitioner that in or about 3rd week of November, 1986 he came to know about Notification No. 11229A dated 11th November, 1986 whereby Sailendra Prosad Talukdar, amongst others, had been allowed to move into higher scale of Rs. 1100-1900 with effect from 31st October, 1983 in terms of paragraph 4 of the memo dated 7th May, 1985. The petitioner made representation in writing dated 2nd December, 1986 complaining about his initial supersession in April, 1985 as well as depriving him of the benefit of the higher scale in terms of memo dated 7th May, 1985. The Additional Registrar, by his letter dated 6th January, 1987 informed the petitioner that his representation dated 2nd December, 1986 could not be entertained in view of the settled principles already adopted.
RECORDS I. Personal file of P.N. Chakraborty.
19. The personal file of the petitioner reveals that adverse remarks were made by Sri N.K.Sen, District Judge of 24-Parganas in respect of the years 1978, 1979 and 1980. The subsequent confidential reports regarding the petitioner in the personal file are, however, all in his favour.
20. I will briefly refer to the basis of the adverse remarks for the fears 1978, 1979 and 1980 in as much as it appears from the records that the same were taken into account for withholding the petitioner's promotion as well as denying him the benefit of the higher scale.
21. The 1978 report says that the period under observation by the Reporting Officer was 11th May, 1978 to 31st December, 1978. Against column headed "Remarks as to the quality of works disposed of, the remark is "Marginal outturn". This remark is based on the following figures set out in that very column :-
Period No. of working days Disposal 1st Qrt.
--
--
2nd Qrt.41 309
3rd Qrt.71 302
4th Qrt.43 366
22. In column 6 headed "Remarks as to quantity of judicial work disposed of and as to promptitude of disposal", the remark is "average". The remark is based on the following figures mentioned in that very column:-
Case heard Confirmed Modified Reserved Remanded Crl. Appeal 1(100%) Crl. Motion
23. Against Column 7 headed "Remarks as to administrative work and ability", the remark is "No comment" and finally, against Col.8 headed 'As to character or reputation" the remarks were as communicated to Sri P.N. Chakraborty by the Additional Registrar of this Court, which is also Annexure 'A' to the writ petition, viz, the surprise visit of Sri N.K. Sen on 23rd November, 1978 and finding the Court Room padlocked from outside with the inner light on and the petitioner being absent. The relevant extract is as follows:-
"Item No. 8: Re: Remarks as to character on reputation: I paid a surprise visit to his court on 23rd November, 1978. I found the Court Room padlocked from outside with the inner light on. He had left early. After sometime the Bench Clerk came and opened the door. I examined his diary which did not give any idea of the hours of his arrival, taking of judicial seat and rising from Court. There was no endorsement by him from 13th November, 1978."
24. Be it mentioned at this stage that this comment to some extent is palpably incorrect. Admittedly no diary in the prescribed form was being maintained for want of forms in the month of December, District Judge sent to the petitioner some forms of Diary in December, 1978.
25. The 1979 Report covers the period from 1st January, 1979 to 31st December, 1979. In this Report the remark in relation of work disposed of is "inadequate" . This remark is based on the following figures mentioned in col. 5 of the report itself:-
Period Working days Disposal 1st Qrt.67 790
2nd Qrt.70 613
3rd Qrt.35 162
4th Qrt.56 745
26. Again against Col.6 relating to "Quantity of judicial work disposed of and prompitude of disposal", the remark is 'average'. This is based on the following figures in the report itself.
Case heard Confirmed Modified Reserved Remanded Crl. Appeal 100(100%) Crl. Motion 1(100%)
27. Against Col.7 headed "Remarks as to administrative work and ability", the remark is 'no comment' and finally, against col.8, headed "As to character or reputation.", the remark is 'good'. This time, the extract of the report communicated to the petitioner referred to the remarks against Col.5 regarding the quality of work being 'inadequate'. This communication is Annexure 'D' to the writ petition.
28. Similarly, the report for 1980 covering the period from 1st January, 1980 to 16th December, 1980 contains the remark 'inadequate' against Col. 5 relating to quality of work disposed of. This remark is based on the following figures:-
Period Working days No. of cases disposed of 1st Qrt.65 754
2nd Qrt.61 1338
3rd Qrt.73 1418
4th Qrt.38 227
29. The other remarks are the same as in the year 1979. The extract sent to the petitioner referred to the remark 'inadequate' against Col.5. This is Annexure 'E' to the writ petition.
30. The subsequent reports in his personal file signed by the District and Sessions Judge, Andaman & Nickobar Islands (for the years 1982, 83) Chief Metropolitan Magistrate (for part of the years 1983, 1984 and 1985) and the District Judge, Howrah (for 1986) are not only in his favour but are highly appreciative on all counts. I will briefly refer to some of these reports.
31. The 1983 Report of the District & Sessions Judge, Andaman & Nichobar Kslands, says that the quality of work disposed of is very good and the quantity of judicial work and promptitude of disposal was also good.
32. The report of the Chief Metropolitan Magistrate, Calcutta for the year 1983 says "his work as Magistrate is quite satisfactory, he has also administrative capability". Again the Report of the Chief Metropolitan Magistrate for the year 1984 says "a very hard working Officer, examined highest number of witnesses with least average duration of cases. Earned good reputation". The general remarks of the District Judge, Howrah in the report covering the period from 1st January, 1986 to 28th May, 1986 says "he is a very efficient Officer and sincere and devoted to his job. His capacity to write and place matters properly, in their perspective deserves mention. He is also capable of taking responsibility and shows initiative, helpful for the purpose of administration". The District Judge, Nadia in his Report relating to the uetitioner's performance as Assistant District Judge, Nadia for the period from 4th June 1986 to 31st December 1986 has said that the quality of his judicial work is good and he is prompt in delivering judgements. He also remarked that Sri Chakraborti's judgments are well reasoned and not unduly long. This report concluded with the following general remarks:
"He is shaping well. He has grasp over law and facts. His judgments are well discussed and speaking. He has earned the appreciation of the lawyers of this station."
II. Administrative Department (Appoint-ment Branch) File relating to panel of Officers fit to officiate as Assistant District Judge.
33. On 22nd January, 1985 a note was put up before the Additional Registrar-I concerning the Officers who were considered for replenishment of the panel of Assistant District Judges. In this note the names of 16 Officers were recommended, including the name of the petitioner. This note concluded with the following remarks:
"In view of what has been stated above, and from the materials in the service records, it appears that all the aforesaid 16 Officers are on the whole good officers, and there is nothing in record which may debar them from consideration for inclusion in the panel of Assistant District Judges."
It also appears from this note that the Additional Registrar-I requested the Additional Registrar-II to examine the 16 Officers cases and offer his comments. Accordingly the Additional Registrar-II examined each of the 16 cases independently which appears from his note dated 25th January, 1985. In relation to the petitioner the Additional Registrar-II's comments are as follows:
C.C.R. Out Turn Judgment Admn General 13.3.83 - 22.10.83 Adequate Good Good Good 1.1.82 - 30.4.83 Adequate Good Good Good JMFC 1.1.80 - 16.12.80 Very good Good Good No mention.
He may be considered for being included in the panel of officers to officiate as Assistant District Judge."
34. On 25th January, 1985 the Additional Registrar-1 put up before the Hon'ble Judge, AD-I a note relating to replenishment of the panel of Assistant District Judges after considereing the notes dated 22nd January, 1985 as well as the report of Additional Registrar-II dated 25th January, 1985. This note said that the last panel approved in August, 1984 for appointment of Assistant District Judge has been exhausted and it was necessary that a new panel should be framed so that postings might be made. Accordingly, by this note the Additional Registrar-I put up names of 16 officers before the Hon'ble Judge AD-I for consideration of inclusion in the new panel to be formed including the name of the writ petitioner. The concluding remarks were:
"In the circumstances, the names of all the 16 officers barring Shri D.K.Bhattacharjee may be considered for inclusion in the panel of Assistant District Judges."
35. On 28th January, 1985 the Hon'ble Judge AD-1 made his comments in the file in relation to all the 16 officers excepting the writ petitioner and two other officers. There were no comments in relation to the writ petitioner.
36. On 30th January, 1985 the Additional Registrar-1 put up another note before the Hon'ble Judge, AD-I. This note recorded that no recommendations have been made by the Hon'ble Judge, AD-I in relation to 3 officers including the writ petitioner and further proceeded to record certain comments about the writ petitioner with the request to the Hon'ble Judge, AD-I to consider whether or not it was a fit case where recommendation might be made for the promotion of the writ petitioner in the light of such comments. It is apparent from these comments that the Hon'ble Judge AD-I had placed some emphasis on the adverse entries made in the annual confidential report of the writ petitioner by Shri N.K.Sen, the then District Judge, 24-Parganas. The following extracts from the comments made by the Additional Registrar-I are relevant:
"Those remarks are quite serious and reveal a sorry state of affairs. The out-turn of work of Shri Chakraborty for the year 1st January, 1979 to 31st December, 1979 was also adjudged as inadequate. The same rating was given to the quantity of the work disposed of by him from 1st January, 1980 to 16th December, 1980. He, however, got a clean chit from the Chief Judicial Magistrate, Calcutta who described his work as quite satisfactory. It is, therefore, for your Lordship to consider whether or not it is a fit case where recommendation may be made for his promotion."
37. On this note dated 30th January, 1985 the Hon'ble Judge AD-I passed the following order: -
"Cases of Items (4) & (16) be deferred for 6 months. I recommend Shri P.C. Kundu for promotion."
38. Item No. 4 related to the writ petitioner. Item No. 16 (O.K. Bhattacharjee) and Item No. 9 (P.C.Kundu) related to the other two officers out of the 16 officers recommended for promotion.
39. The above recommendations of the Hon'ble Judge AD-I was placed before the Administrative Committee of this Court and the same was approved by the Committee by its resolution passed at a meeting held on 1st March, 1985 which recorded the names of 14 officers to be included in the panel of officers fit to officiate as Assistant District Judge. The resolution further recorded as follows;-
"Resolved further that consideration of the cases of Shri Purnendu Narayan Chakraborty and Dilip Kumar Bhattacharjee for their inclusion in the said panel be deferred for 6 months for the present. Their cases be taken up again after completion of the said period on obtaining special reports from their respective District Judges about their work and conduct."
40. On 1st April, 1985 Notification No. 3647 dated 1st April, 1985 of this Court (Appellate Side) was published appointing the persons mentioned therein as Judicial Magistrate of the 1st Class designated as Sub-Divisional Judicial Magistrate of the respective Sub-Divisions mentioned in the schedule to the notification. The name of the writ petitioner was not mentioned in this notification. Two officers who were junior to the writ petitioner, namely Sailendra Prosad Talukdar and S.Gupta, were appointed as Sub-Divisional Magistrates by this notification.
41. Under cover of his Memo No. 1116 dated 29th April, 1985 the Chief Metropolitan Magistrate, Calcutta forwarded to the Additional Registrar a representation of the writ petitioner of the same date i.e., 29th April, 1985 complaining about the supersession and requesting for a fresh consideration of the matter in the light of the contents of the said representation. He also requested that he would be allowed promotion with restoration of the seniority without being supreseded further. He also said that he would be glad to appear before this Court and offer his explanation and clarification as might be thought necessary.
42. It appears that a note was put up before the Additional Registrar on 13th May, 1985 along with the representation of the writ petitioner and another officer (D.K. Bhattercharjee) with the request that the representation be placed before the Hon'ble Judge AD-I with reference to the resolution of the Administrative Committee dated 1st March, 1985.
The said note was as follows:-
"Additional Registrar, The Administrative Committee in its Resolution dated 1st March, 1985 decided to include fourteen Munsiffs in the panel of Assistant District Judges. It was then also decided that consideration of the cases of Sri Pumendu Narayan Chakraborty and Shri Dilip Kumar Bhattacharjee for inclusion in the panel of Assistant District Judges be deferred for six months for the present and that their cases be taken up again after completion of the said period on obtaining a special report from their respective District Judges about their work and conduct.
Shri Pumendu Narayan Chakraborty and Shri Dilip Kumar Bhattacharjee have submitted representations praying that their names may be included in the panel and they may be promoted as Assistant District Judges along with the officers of the batch. The representations are placed below:--
"Shri Chakraborty states that he received adverse comments from the District Judge, 24-Parganas, on his character, out-turn etc, in 1978, 1979 and 1980 and if those comments have played any role in spelling the disaster upon him he may be regarded as the most unfortunate officer. As a subordinate Judicial Officer he could not satisfy the District Judge with the quality of work and his inability is deeply regretted. He, however, did not waste judicial hours and tried his best to improve the out-turn to the best of his ability. He also states that for the last years he has not received any adverse comments from any of the District Judges and the C.M.M. under whom now he is working.'
43. The Additional Registrar in his turn put up a note before the Hon'ble Judge. AD-I on the same date i.e., 13th May, 1985 pointing out that the writ petitioner and the other officers had made the said representations and it was for the Hon'ble Judge AD-I to consider whether their cases might be reviewed or not. It appears from the further note of the Additional Registrar of the same date that the Hon'ble Judge AD-I directed that the personal files of the writ petitioner and the other officers be put up before the Hon'ble Judge, AD-I.
44. Accordingly the personal files of the writ petitioner, and the other officers were put up before the Hon'ble Judge AD-I on 26th July, 1985. On 1st August, 1985 the Hon'ble Judge AD-I made the following note:-
"In view of the decision of AC, the case of these two officers can be considered only after special reports called for from their respective DJs are received..."
45. It appears that pursuant to the direction of the Hon'ble Judge AD-I the Additional Registrar by his Memo No. 8987A dated 9th August, 1985 requested, inter alia, the Chief Metropolitan Magistrate, Calcutta to submit a "Special Report on the work, quality of judgments, performance as Judicial Officer, conduct, character and reputation etc." of the writ pettitioner as a Judicial Officer. It also appears that the Chief metropolitan Magistrate had sent the special report in relation to the writ petitioner by his Letter No. 2101 dated 13th August, 1985.
46. Since the petitioner was not informed about the facts of his representation dated 29th April, 1985, the petitioner made a further representation on 23rd September, 1985.
47. Under cover of Memo No. 2594 dated 24th September, 1985 the Chief Metropolitan Magistrate forwarded to the Additional Registrar the said representation of the petitioner with a request that "attention of the Hon'ble Court may kindly be invited to this office Confidential Letter No. 2101 dated 13th August, 1985 in reply to your Confidential Letter No. 8987A dated 9th August, 1985." The petitioner's representation dated 23rd September, 1985 enclosed with the memo of the Chief Metropolitan Magistrate dated 24th September, 1985 pointed out that the decision of this Court on the representation of the petitioner dated 29th April, 1985 had not been communicated and as such he was feeling humiliated and frustrated and finding it difficult to perform his judicial work with a "free mind" and keeping his "head" high. He again requested for an opportunity to appear before the Hon'ble Judge AD-1 personally for offering his explanation and if necessary for apology for lapses, if any, which might have taken glace in the past. He prayed for arranging an interview with the Hon'ble Judge AD-I.
48. It appears that the said Special Report submitted by the then Chief Metropolitan Magistrate was either mislaid or not placed in the file. By a Letter No. 10454-A dated 28th September, 1985 this Court wrote to the Chief Metropolitan Magistrate for the Special Report. In reply to the said letter, the Chief Metropolitan Megistrate on 1st October, 1985 wrote as follows:-
"With reference to the Hon'ble Court's Letter No. 10454-A dated 28th September, 1985, I am to forward herewith the copy of the special report dated 13th August, 1985 on the work, quality of judgments, performance etc. of Shri Purendu Narayan Chakraborty, Metropolitan Magistrate, Calcutta for favour of information of the Hon'ble Court.
In this context, it may be mentioned that the original report in this regard was sent to the Hon'ble Court by this office Letter No. 2101 dated 13th August, 1985."
49. The Special Report dated 13th August, 1985 by the then Chief Metropolitan Magistrate is as follows:-
"This has reference to the Hon'ble Court's confidential Letter No. 8987-A dated the 9th August, 1985 requesting me to submit a special report on the work, quality of judgment etc. of Shri P.N. Chakraborty, Metropolitan Magistrate, Calcutta.
I beg to state, for information of the Hon'ble Court that I have examined records of several cases (GR. 1922/81, C54/79, EX636/83, GR.2181/78 and GR.3442/83) disposed of by Shri Chakraborty on contest and found that evidence was properly recorded and judgments delivered were well-reasoned.
In this connection, I may invite the attention of the Hon'ble Court to the annual confidential report of Shri Chakraborty and other Magistrates forwarded by this Office Confidential Letter No. 2016 dated the 5th August, 1985 wherein figures have been quoted showing that the disposal of cases by Shri Chakraborty was one of the highest and average duration of cases in his Court was one of the lowest among the Magistrates here. The number of witnesses examined by Shri Chakraborty in the said year was also among the highest.
I have examined the registers of the Court of Shri Chakraborty and found the same to be properly maintained with uptodate entries suggesting that he oversees the work of the staff attached to his Court.
He is regular in attendance and takes seat for judicial work in time. He has earned good reputation for his conduct, character and performance as a Judicial officer.
Considering all aspects, I am firmly of the opinion that he is one of the best Magistrates here and fit to assume higher responsibility."
50. Thereafter on 4th October, 1985 a note was put up before the Additional Registrar recording that six months mentioned in the Administrative Committee Resolution dated 1st March, 1985 had lapsed and special reports have been obtained. The note also recorded that a further representation had been submitted by the petitioner and that he had requested to arrange an interview with the Hon'ble Judge AD-I, and as such orders of the Hon'ble Judge AD-I might be obtained as to whether an interview would be granted to him and whether his case might be considered favourably for inclusion in the panel. The Additional Registrar placed the matter before the Hon'ble Judge, AD-I along with his note dated 7th October, 1985 pointing out specifically that the petitioner had requested to arrange for an interview with the Hon'ble Judge, AD-I and the Chief Metropolitan Magistrate had given a favourable report in respect of the petitioner. The note of the Additional Registrar concluded in the following manner;-
"The matter is put up before your Lordship to ascertain-
(i) whether interview will be granted to Shri P.N. Chakraborty and
(ii) whether the cases of the two officers for inclusion of their names in the panel of Assistant District Judges be favourably considered. Submitted."
51. On the same day i.e., 7th October, 1985 the Hon'ble Judge AD-I recorded the following decision in the note sheet:
"Yes, their names may be approved for inclusion in the panel."
52. The order of the Hon'ble Judge, AD-I dated 7th October, 1985 was approved by the then Chief Justice (the Hon'ble Mr. Satish Chandra) on 5th December, 1985.
53. At the meeting of the Administrative Committee dated 9th December, 1985 the Committee resolved that Shri Chakraborty be included in the panel of Additional District Judges:
54. On 12th December, 1985 the then Chief Justice directed that copies of the Resolutions adopted at the meeting of the Administrative Committee on 9th December, 1985 (which included resolution relating to inclusion of the petitioner in the panel of the Additional District Judges) be circulated to all the Hon'ble Judges of this Court and if no objection from any of the Hon'ble Judges was raised by 23rd December, 1985 the resolutions in question would be deemed to have been approved by the full Court.
55. Accordingly the said resolutions were circulated and since no objection was received by 23rd December, 1985, they were deemed to have been approved by the full Court.
56. Under cover of Letter No. 12047-J dated 7th May, 1985 the Joint Secretary, Judicial Department, Government of West Bengal forwarded to the Additional Registrar a copy of the Memo No. 12046-J dated 7th May, 1985 issued by the Judicial Department. I have already set out the text of the Memo dated 7th May, 1985.
57. On 21st September, 1985 a note was placed before the Additional Registrar relating to awarding of the benefit of the higher scale of Rs. 1100-1900 to the 16 eligible Munsiffs. This note first of all named 22 Judicial Officers who were posted as Munsiffs on 1st April, 1981. This note also recorded that out of 22 Judicial Officers, 2 Officers namely, Shib Sankar Sinha and Anil Kumar Biswas, were not promoted to the rank of Assistant District Judge in due course and their cases for inclusion in the panel of Assistant District Judges were deferred as "their performance as a Munsiff was not satisfactory and as such they were not promoted duly". It further records that the remaining 20 Officers were duly promoted to the rank of Assistant District Judge and it might be safely presumed that their performance as Munsiff was quite satisfactory. Accordingly the note proposed that 16 Munsiffs out of 20 Munsiffs mentioned above might be given benefit of next higher scale of Rs. 1100-1900 with effect from 1st April, 1981 till the date they were promoted to the rank of Assistant District Judge.
58. This is obvious that the list of 16 Officers were prepared according to their inter se seniority and having regard to such seniority the petitioner's name did not find any place in this list.
59. On 24th September, 1985 the Additional Registrar placed his note before the Hon'ble Judge AD-I for comments. The note of the Additional Registrar was substantially in the same terms as the note dated 21st September, 1985 put up before him. In particular, the Additional Registrar also accepted the principle that those Munsiffs who were not promoted to the rank of Assistant District Judges in due course and whose promotions were deferred should not get benefit of higher scale with effect from 1st April, 1981. The Hon'ble Judge AD-I passed the following order on 25th September, 1985:
"Seen. Officers set out in the List bearing Nos. 2-14 and 16-18 may be given higher scale. Since all these Officers were found to be suitable for promotion as Assistant District Judges their services may be recognised as satisfactory. The Officers bearing Item Nos. (1) & (15) are not entitled to the benefit since their service was held to be unsatisfactory and as such their promotion as Asst. D.J. was deferred."
60. On 4th October, 1985 another note was placed before the Additional Registrar regarding the next batch of Officers who might be considered for allowing benefit of the higher scale. It will appear from this note that the basis of considering as to whether the perfomance of such Officers as Munsiff was satisfactory or not was whether the concerned Officer was promoted to the rank of Assistant District Judge in due time and any deferment of promotion led to the conclusion that the performance as Munsiff was not satisfactory.
61. The Additional Registrar put up his note, before the Hon'ble Judge AD-I on almost verbatim terms as the note dated 4th October, 1985.
62. On 9th October, 1985 the Hon'ble Judge AD-I made the following order:
'Proposal as made is approved."
63. In this process by August, 1986, 64 Munsiffs had been given the benefit of the higher scale. The turn of the writ petitioner did not arrive till then by reason of the seniority principle.
64. On 13th August, 1986 a note was placed before the Additional Registrar relating to the benefit being extended to more officers consequent upon the promotion of Munsiffs (who were already getting the benefit of the higher scale) to the rank of Assistant District Judge. This note shows that three lists were, prepared, List I, List II and List III. The writ petitioner was Clause 10 in List I. The note then proceeds to say that the principle for giving benefit of higher scale, namely, that those whose promotion as Assistant District Judge were deferred were not entitled to such benefit, should be followed and on this basis the note excludes the names of three Officers from List I, four Officers from List n and five Officers from List III. The petitioner is one of the Officers excluded from List I, The Additional Registrar in substance adopted the note dated 13th August, 1986 by his note dated 20th August, 1986 while placing the matter before the Hon'ble Judge AD-I. On 20th August, 1986 the Hon'ble Judge AD-I made the following order on the note sheet:
"For the present I approve List I and List II. So far as List III is concerned that is deferred for scrutiny and report about the satisfactory nature by their services."
As such the petitioner was denied the benefit of the higher scale when his turn came for consideration.
65. A Notification No. 1129-A dated 11th November, 1986, was published showing the names of the Officers who were given the benefit of the higher scale and obviously the name of the petitioner was not published although officer junior to him, namely, Sailendra Prosad Talukdar was given the benefit.
66. Under cover of a Memo dated 5th December, 1986, the District Judge. Nadia forwarded to the Additional Registrar a representation dated 2nd December, 1986 from the petitioner with regard to denial of the benefit of the higher scale to him. In this representation the petitioner pointed out that his deferment of promotion to the rank of Assistant District Judge was itself a punishment based on the allegation contained in the said ACRs and he was denied promotion when the same was due to him. As such, he said that denial of the benefit of the higher scale because of not being promoted in due time as Assistant District Judge subjected bim to double jeopardy. He offered to appear before the High Court and to explain or clarify as to the justness of his cause.
67. On 22nd December, 1986 a note was put up before the Additional Registrar in relation, inter alia, to the representation of the petitioner with the remark that in view of the principle already adopted i.e., allowing benefit of higher scale to only those who have been duly promoted to the rank of Assistant District Judge, the issue migtht not be reopened and the representation might not perhaps be entertained. The Additional Registrar placed the representation before the Hon'ble Judge AD-I with similar comments by his note dated 23rd December, 1986. The Hon'ble Judge AD-I made the following remarks in the note sheet on the same date:
"Yes."
68. In the content and setting of those facts, the submissions of Shri Samaraditya Pal learned Counsel appearing on behalf of the writ petitioner are briefly as follows :-
(a) The initial supersession of the petitioner in April, 1985 was arbitrary and no reasonable person properly instructed in law or facts could have permitted such supersession on the basis of the materials on record.
(b) Having permitted the petitioner to cross Efficiency Bar at the stage of Rs. 685/- in the scale of Rs. 475-1150 with effect from 1st February, 1982 the Hon'ble Judge AD-I erred in law in basing his order dated 30th January, 1985 deferring the promotion of the petitioner for six months on the adverse remarks contained in ACRs of 1978,1979 and 1980. In this connection reliance was placed on the judgments of the Supreme Court in State of Punjab v. Diwan Chunilal and D. Ramaswami v. State of Tamil Nadu reported in (1982-I-LLJ-349)
(c) The denial of the benefit of higher scale admissible under Memo No. 12046-J dated 7th May, 1985 to the petitioner was wholly arbitrary, in violation of the principles of natural justice or fair play and in fact subjected the petitioner to double jeopardy. The settled principles referred to in the Memo dated 6th January, 1987 are not relevant principles.
(d) The petitioner should be deemed to be promoted to the rank of Assistant District Judge with effect from 1st April, 1985, i.e., the date on which he was superseded. His seniority in the grade of Assistant District Judge be fixed accordingly and he should be given benefit of higher scale introduced by the Memo dated 7th May, 1985 with effect from 31st October, 1983 i.e., the date from which Sailendra Prosad Talukdar who was immediately junior to the petitioner in the rank of Munsiff was allowed to move into the higher scale. Reliance was placed on the decision of Division Bench of the Andhra Pradesh High Court in C. Hanumantha Reddy v. Union of India reported in 1983 (3) SLR 234 and a decision of, Division Bench of the Kerala High Court in G.O. Joseph v. State of Kerala reported in 1979 (2) SLR 689.
69. I propose to deal with the submissions made on behalf of the petitioner in the same order.
70. It is not necessary for me to consider whether the adverse remarks made by the District Judge. 24 Parganas for the years 1978, 1979 and 1980 were justified or not. However, it is difficult to discern what standards operated in the thinking process of the District Judge in assessing the performance of the petitioner particularly in relation to the out-turn of work.
71. What is important is on what consideration and on what materials the Hon'ble Judge AD-I made his order dated 30th January, 1985 defering the promotion of the petitioner which was subsequently approved by the Administrative Committee of this Court and which resulted in the ommission of the name of the petitioner in Notification No. 3647 dated 1st April, 1985.
72. It is evident from the records that the note dated 22nd January, 1985 put up before the Additional Registrar-I clearly stated that the 16 officers including the petitioner who were being considered for promotion were good officers and there was nothing on record which might debar them from such consideration. The report of the Additional Registrar-II made pursuant to the request of Additional Registrar-I was also favourable as far as the petitioner is concerned. The Additional Registrar-I after considering the report of the Additional Registrar-II as well as the note dated 22nd January, 1985 considered that the petitioner was fit for inclusion in the panel of the Assistant District Judges. The Hon'ble Judge AD-I initially did not make any comments in relation to Shri Chakraborti. So the matter was again placed before the Hon'ble Judge AD-I on 30th Jaunary, 1985 and it appears from the note sheet (as I have already recorded earlier) that the Hon'ble Judge AD-I laid some emphasis on the adverse entries made in the ACRs of the petitioner for the years 1978, 1979 and 1980. It is surprising to note that the Additional Registrar-I who had in his earlier note dated 25th January, 1985 unqualifiedly remarked that the petitioner could be considered for inclusion in the panel of Assistant District Judges, in his note dated 30th January, 1985 put up before the Hon'ble Judge AD-I referred to the said adverse remarks in the ACRs of 1979-1980 and concluded by saying:-
"It is therefore for your Lordship to consider whether or not it is a fit case where recommendations "be made for his promotion."
73. The reasons behind such change of stand is not apparent. It was the duty of the Additional Registrar-I to place all relevant facts before the Hon'ble Judge AD-1. He foiled in his duty which prejudicially affected the career of the petitioner inasmuch as it is on the basis of this note that the Hon'ble Judge AD-I passed the order dated 30th January, 1985 defering the promotion of the petitioner and which resulted in his supersession.
74. The records do not disclose that the Hon'ble Judge AD-I brought his independent judgment in the matter. He seems to have relied solely on the note of Additional Registar-I dated 30th January, 1985. This note was inconsistent with the Additional Registrar-I's earlier notes. The records also do not disclose that the Hon'ble Judge AD-I independently considered the ACRs of Shri Chakraborty for the years 1978, 1979 and 1980. It is difficult to predict what view he would have formed had he looked into those ACRs. In any event the Hon'ble Judge AD-I was considering the question of the fitness of the petitioner to be promoted to the rank of Assistant District Judge in the year 1985. It is apparent from the records (i.e., personal file of Shri Chakraborty) that after 1980 the subsequent ACRs signed by the District & Sessions Judge, Andamans & Nicobar Islands regarding his performance as Judicial Magistrate First Class, on deputation to Andamans and as Chief Metropolitan Magistrate, Calcutta in 1983 and 1984 were highly in his favour on all counts and particularly in reference to the quality and quantity of judicial work. It appears that the attention of Hon'ble Judge AD-1 was not pointedly drawn to the personal records of the petitioner for the years 1981, 1982, 1983 and 1984 nor did the Hon'ble Judge AD-I himself consider the same. In considering the fitness of a person for promotion to higher post, his performance in the proximate past is more relevant and deserves more weightage than his performance in the remote past, Assuming that the District Judge was justified in making the adverse remarks for the years 1978, 1979 and 1980, it is difficult to appreciate how such remarks could outweigh and obliterate the favourable remarks of the years 1981, 1982, 1983 and 1984 on 30th January, 1985 when the Hon'ble Judge AD-I took the decision to withhold the petitioner's promotion resulting in the impugned superssion. In J.D. Shrivastava v. State of M.P. reported in (1984-I-LLJ-344) it was held that the confidential reports relating to a remote period would not be relevant for the purpose of determining whether a person should be retired compulsorily or not. Again in Brij Mohan Singh Chopra v. State of Punjab reported in (1987-1-LLJ-522), the Supreme Court observed as follows at page 526 of the report:
"It would be unreasonable and unjust to consider adverse entries of remote past and to ignore the good entries of recent past."
Although these two cases relate to compulsory retirement, I am of the opinion that the same principles should apply also while considering the case of granting promotion to an employee.
75. Furthemore, on 7th October, 1985 the Hon'ble Judge AD-I approved the petitioner for inclusion in the panel of Assistant District Judges. Apart from the special report of the Chief Metropolitan Magistrate dated 1st August, 1985 there were no new materials before the Hon'ble Judge AD-I between 30th January, 1985 and 7th October, 1985. But the Chief Metropolitan Magistrate had already submitted favourable ACRs in respect of the petitioner for the years 1983 and 1984. This also goes to show that the case of the petitioner was not duly considered before his supersession on 30th January, 1985.
76. In my view the decision of the Hon'ble Judge AD-I dated 30th January, 1985 which resulted in the supersession of Shri Chakraborty cannot be considered to be a reasonable decision within the meaning of principles laid down in the well known judgment of Associated Provincial Picture House Ltd v. Wadnesbury Corporation (1948)1 KB 223 which has become known as the Wednesbury Principle. In that case Lord Green M.R. explained the principle as follows:
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general discretion of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which he is bound not to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'."
77. The submissions based on the petitioner being allowed to cross the Efficiency Bar with effect from 1st February, 1982, i.e., after the adverse remarks in the ACRs of 1978, 1979 and 1980 and being given the responsible posting of Chief Metropolitan Magistrate on 27th August, 1983 are also of substance. In the case of the State of Punjab v. Dewan Chunilal (supra) the Supreme Court said as follows at page 2089 of the report:
"In our view reports earlier than 1944 should not have been considered at all inasmuch as he was allowed to cross the efficiency bar in that year. It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942 they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944.
78. In D. Ramaswami v. State of Tamil Nadu reported in (1982-I-LLJ-349) the Supreme Court observed as follows at page 351 of the report:
"So what do we have? There was an adverse entry in the confidential file of the appellant in 1969. The basis of the entry was knocked out by an Order dated November 29, 1974 of the Government and effect of the entry was blotted out by the promotion of the appellant as Deputy Commissioner."
79. In the instant case the authorities relied on the adverse remarks contained in the ACRs of 1978. 1979 and 1980 and they were relied on at the time of deciding whether the petitioner was fit for promotion i.e., on 30th January, 1985. In view of the fact that the petitioner was allowed to cross the Efficiency Bar with effect from 1st February, 1982 and given the responsible assisgnment of Chief Metropolitan Magistrate, Calcutta in 1983, in my opinion such reliance on the ACRs of 1978. 1979 and 1980 was misplaced and in view of the principles to be derived from the decisions of the Supreme Court in Dewan Chunilal's Case and Ramaswami's Case referred to above, the very basis of the decision dated 30th January, 1985 becomes unsustainable in law.
80. As such I hold that the supersession of the petitioner in 1985 was unjustified in law and the order of the Hon'ble Judge AD-I dated 30th January, 1985 and the decision of the Administrative Committee of this Court recorded in its Resolution dated 1st March, 1985 must be quashed.
81. In considering the entitlement of the benefit of higher scale to 16 Munsiffs pursuant to Memo dated 7th May, 1985, it is apparent from the records that the concerned authorities including the Hon'ble Judge AD-I adopted the principle that these Munsiffs who were not promoted to the rank of Assistant District Judge in due course and whose promotions were deferred should not get the benefit of higher scale. By reason of the application of this principle the petitioner was denied the benefit of higher scale when his turn came for such consideration on the basis of his seniority in August, 1986.
82. A reference to the note dated 13th August, 1986 in the Administrative, Department (Appointment Branch) file relating to benefit of higher scale shows that the petitioner's name was placed at Serial No. 10 of List I of officers for being considered for getting the benefit of higher scale. The note proceeds to say that the principle of getting the benefit of higher scale i.e., that those whose promotions as Assistant District Judge were deferred were not entitled to such benefit should be followed and on this basis excludes the names of three Officers from the List I, one of whom is the petitioner. The Hon'ble Judge AD-I made the following order on 20th August, 1986 on the note sheet:
"For the present I approve the List I and List II ..."
83. On this basis the said Notification No. 1129A dated 11th November, 1985 was published showing the names of the officers who were given the benefit of higher scale. The petitioner was excluded, whereas an officer junior to him in the Munsiff rankle., Sailendra Prosad lalukdar, was given the benefit. The petitioner was superseded because of the adverse remarks in the ACRs of 1978, 1979 and 1980. In other words, he was punished for such adverse entries for not getting his due promotion. Again the petitioner was not given the benefit of higher scale because he was not promoted in due course as Assistant District Judge.
84. It is obvious that the petitioner is in effect punished twice for the same reason i.e., adverse entries in ACRs of 1978, 1979 and 1980. Our administration is governed by the rule of law and this principle should be obvious to authorities of this Court even in discharging administrative functions. The rule of law cannot permit the application of the principle of what is known as double jeopardy. A man cannot be punished twice for the same offence. The principle adopted by the concerned authorities and the Hon'ble Judge AD-I in considering the granting of the benefit of higher scale ex facie suffers from the vice of double jeopardy. Although Article 20(2) of the Constitution which provides that no person shall be prosecuted and punished for the same offence more than once does not strictly apply to the facts of the present case, I would hold that withholding of promotion and denial of benefit of higher scale for the same complaints regarding an officer amounts to double jeopardy which is manifestly arbitrary and violative of Articles 14 and 16 of the Constitution of India, In this connection I may refer to the judgment of the Supreme Court in the case of A.L. Kalra v. Project & Eciuipment Corporation of India Ltd. reported in (1984-11-LLJ-186). In that case the Supreme Court recognised the application of the principle of double jeopardy in service jurisprudence (see observations at page 190, 194 of the report). In my view the order dated 20th August, 1986 of the Hon'ble Judge AD-I which has resulted in the petitioner being denied the benefit of higher scale must be struck down. In that view of the matter it is not necessary for me to consider the other submissions made on behalf of the petitioner relating to violation of the principle of natural justice or the effect of the representation of the petitioner regarding the denial of higher scale and the refusal of the authorities to consider his representation on the ground that the decision dated 20th August, 1986 was taken on well-settled principles.
85. It now remains to be considered what consequential reliefs are to be given to the petitioner.
86. The learned Counsel appearing for the petitioner submitted that inasmuch as the supersession and denial of higher scale were illegal and were not based on relevant considerations and as no farther enquiry into the facts and law were involved, it is fit and proper that this Court should direct the authorites concerned to grant promotion to the petitioner with effect from 1st April, 1985 and benefit of the higher scale with effect from 31st October, 1983. He submitted that this Court had jurisdiction to give such direction and in this connection relied on the following passage from the judgment of the Supreme Court in the case of Comptroller & Auditor General of India and Anr. v. K.S. Jagannathan and Anr. :
"There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the, policy tor implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the peformance in a proper and lawful manner of the discretion conferred upon the Government or a public authority and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order as Govt. or public authority should have passed or given had it properly and lawfully exercised its discretion."
87. Learned Counsel for Sn Chakraborty also submitted that granting of deemed promotion in an appropriate case was a well known concept in service jurisprudence.
88. The cases relied upon by the learned Counsel in this connection, namely, C.Hanumentha Reddy v. Union of India (supra) and GO. Joseph v. State of Kerala (supra) do lend support to such submissions. In G.O.Joseph's case Mr. Justice Balakrishna Eradi observed as follow?; at page 692:
"...There was therefore a vacancy of Upper Division Clerk available in the Labour Deptt. itself (leaving out of account vacancies in the Labour Courts) on 22nd March, 1957. On to date the petitioner was the senior-most qualified hand amongst the Lower Division Clerks working in the Department. The 6th respondent acquired the test qualification only on 27th March, 1957. The legitimate claimant for promotion in the vacancy that arose on 22nd March, 1957 was, therefore, the petitioner and the petitioner is entitled to have the said vacancy assigned to him for purpose of fixation of his rank and seniority..."
89. Since I have held that the supersession of Sri Chakraborty in 1985 was illegal, it follows that he should have been included in the panel of Assistant District Judges and he would have been entitled to promotion in April, 1985 along with Sailendra Prosad Talukdar and Sudhan Kumar Gupta who were immediately junior to the petitioner in the rank of Munsiff. Because of the illegal supersession the petitioner has suffered in various ways as pointed out in his representations to this Court. The ends of justice require that the petitioner should be compensated in all respects and to the extent possible. In the normal course I would have remitted the matter to the administrative jurisdiction of this Court for consideration of the case of the petitioner afresh. But, having regard to the fact that the only factors resulting in prejudice to the petitioner were based on irrelevant and unjustifiable considerations and that no further enquiry into facts are necessary, I consider it fair and proper in exercise of this Court's discretionary power under Article 226 of the Constitution of India to direct that the petitioner should be given deemed promotion with effect from 1st April, 1985 in the rank of Assistant District Judge and should be given benefit of the higher scale in terms of the Memo No. 12046(J) dated 7th May, 1985 with effect from 31st October, 1983 until 1st April, 1985 i.e., the deemed date of his promotion as Assistant District Judge.
90. In the result this writ petition succeeds. The respondents are directed to grant promotion to the petitioner in the rank of Assistant Dist. Judge with effect from 1st April, 1985 with consequential seniority in service in accordance with law. The respondents are also directed to give the benefit of higher scale in terms of Memo No. 12046(J) dated 7th May, 1985 to the petitioner with effect from 31st October, 1983 till 1st April, 1985. All emoluments which become payable to the petitioner by reason of granting of the benefit of such higher scale in terms of this order shall be paid to the petitioner within three weeks from the date of communication of this order.
91. There will be no order as to costs.
92 . The concerned authorities shall act on a signed copy of the minutes of the operative part of this judgment and order upon the undertaking of the petitioner to apply for and obtain a certified copy.