Calcutta High Court (Appellete Side)
Plaban Mukherjee & Ors vs The Hon'Ble High Court At Calcutta & Ors on 16 June, 2017
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
FMA No. 123 of 2014
Plaban Mukherjee & Ors.
Versus
The Hon'ble High Court at Calcutta & Ors.
For the appellants : Mr. Rameswar Bhattacharya
Mr. Soumen Bhattacharya
For the High Court Authority : Mr. Alok Ghosh
For the respondent nos.8-10 : Mr. Pradip Kr. Roy
Ms. Srabani Sarkar
Heard on : 22/07/2016, 25/07/2016, 26/07/2016, 08/09/2016, 09/09/2016 &
07/04/2017
Judgment on: 16/06/2017
Debasish Kar Gupta , J. :
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.
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).
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* = 06, and PH - 01).
*04 vacancies reserved for ST for the year 2008 were carried forward.
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). 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.
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.
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.
The Secretary-in-Charge to the Government of West Bengal, Judicial Department, in his turn, informed the respondent Commission the revised allotment of candidates on the result of the said Examination, 2010, under his memo. No.109- SJ dated February 15, 2011, as follows:-
i) Unreserved - 12
ii) SC (1+3*) - 04
iii) ST (1+5 ) - 06
iv) BC - 01
Total - 23
*Vacancy carried forward from previous year.
The respondent Commission forwarded revised allotment of qualified candidates to the Secretary-in-charge to the Government of West Bengal, Judicial Department, under memo. No. A-10 - P.S.C. (A) dated February 23, 2011, for appointment in the West Bengal Judicial Service on the result of the said Examination, 2010, recommending 22 (twenty two) candidates (Unreserved - 12, BC - 01, SC - 04, ST - 05) arranging the names in order of merit for appointment against 22 (twenty two) vacancies out of 23 (twenty three) vacancies (Unreserved - 12, BC - 01, SC - 04, ST - 06) in cancellation of its earlier recommendation made under communication No.A-170 - P.S.C. (A) dated December 21, 2010. The names appearing against serial Nos. 1 (one) to 12 (twelve) in the select list published by the respondent Commission under announcement no.231 P.S.C/Con. IIA on December 21, 2010, were recommended for appointment in the said Judicial Service on the results of the said Examination, 2010 against unreserved categories. The names of the appellants did not appear in the above revised allotment of qualified candidates for appointment in the West Bengal Judicial Service on the results of the said Examination, 2010, since the name of none of them appeared within serial No. 12 (twelve) in the select list published by the respondent Commission under announcement no.231 P.S.C/Con. IIA on December 21, 2010.
It will not be out of context to take note of the fact that the respondent commission initiated the process for holding West Bengal Judicial Service Examination, 2011 by advertisement no.04/2011 dated April 12, 2011 inviting applications from eligible candidates in prescribed proforma in respect of 73 (Unreserved - 48, SC - 07, ST - 04, BC - 12 (Category A-07, Category B-
05) and PH - 02) anticipated vacancies for the year 2011.
According to the appellants the decision making process of the respondent authorities not to fill up all the vacancies as declared under advertisement No.03/2010 dated April March 6, 2010, could not be sustained in law. The above decision making process was subject matter of challenge in the two writ applications which give rise to these appeals at the instance of the appellants amongst other participants. By virtue of the impugned judgment both the writ applications were dismissed.
It is submitted by Mr. Rameswar Bhattacharya, learned advocate appearing on behalf of the appellants, at the very outset that out of 11 (eleven) writ petitioners 3 (three) have been appointed in usual course from select list consisting of names of 82 (eighty two) candidates qualified on the results of the said Examination, 2010, in the meantime. Two (2) writ petitioners have been selected subsequently for appointment from the select list of candidates qualified on the results of the West Bengal Judicial Service, Examination, 2011. Consequent thereupon, this appeal is preferred by 6 (six) appellants whose names appeared in the select list consisting of the names of candidates qualified on the results of the said Examination, 2010. No dispute is raised by Mr. Alok Ghosh, learned advocate appearing for the respondent nos.1, 2 and 3, in respect of the aforesaid submissions.
According to Mr. Bhattacharya, 35 (thirty five) vacancies as notified by the respondent commission were the vacancies in existence in the said Judicial Service at the time of publishing advertisement no.03/2010 dated March 6, 2010 by the respondent commission and there was no scope to reduce it to 23 (twenty three) depriving the appellants. Drawing our attention to the Notification No.5643-J dated August 14, 2009, it is submitted by him that consequent upon appointment on promotion of 42 (forty two) officers to the West Bengal Judicial Service in the cadre of Civil Judge (Senior Division)/ Chief Judicial Magistrate/ Additional Judicial Magistrate etc. from the Judicial Officers belonging in the cadre of Civil Judge (Junior Division)/ Judicial Magistrate etc., the total number of vacancies in existence in the said Judicial Service was calculated as 35 (thirty five) for publishing above advertisement no.03/2010 dated March 6, 2010.
It is also submitted by him that consequent upon appointment on promotion of 72 (seventy two) judicial officers to the West Bengal Judicial Service, in the cadre of Civil Judge (Senior Division)/Chief Judicial Magistrate/Additional Chief Judicial Magistrate etc. by virtue of notification no.5733-J dated September 30, 2010, further vacancies arose in the said Judicial.
It is further submitted by him that the selection process under challenge was conducted by the respondent authorities in violation of the guidelines prescribed by the Hon'ble Supreme Court for appointment to the post of Civil Judge (Junior Division)/Judicial Magistrate etc. by direct recruitment in the matter of Malik Mazhar Sultan (3) vs. U.P. Public Service Commission & Ors., reported in (2008) 17 SCC 703. According to him, though it was directed by the Hon'ble Supreme Court in the above matter that the select list prepared for all candidates of judicial officers should be valid till the next select list was published, the vacancies arising as a consequence of promotion of judicial officers to the West Bengal Judicial Service, in the cadre of Civil Judge (Senior Division)/Chief Judicial Magistrate/Additional Chief Judicial Magistrate etc. by notification nos.5642-J dated August 14,2009, and dated September 30, 2010, respectively, from the said Judicial Service were not filled up from the select list of candidates qualified on the results of the said examination, 2010.
According to him, there was violation of the order dated March 24, 2009 passed by the Apex Court in the matter of Malik Mazhar Sultan (3) (supra) on the part of the respondent authorities in notifying the existing number of vacancies plus anticipated vacancies for the next one year by advertisement no.04/2011 dated April 12, 2011 inviting applications from eligible candidates in prescribed proforma in respect of 73 (Unreserved - 48, SC - 07, ST - 04, BC - 12 (Category A-07, Category B-05) and PH - 02) anticipated vacancies for the year 2011.
Reliance is placed by Mr. Bhattacharya on the decisions of Malik Mazhar Sultan (3) vs. U.P. Public Service Commission & Ors., reported in (2008) 17 SCC 703, read with orders dated April 3, 2006 and March 24, 2009 passed in C.A. No.1867 of 2006 arising out of the above matter, unreported judgment dated May 16, 2003 by a Single Bench of this Court in the matter of Kazi Abdul Hasen & Ors. vs. State of West Bengal & Ors. (In re:- W.P. No.16485 of 2002) and unreported judgment dated September 12, 2011 passed by a Division Bench of this Court in the matter of Manabendra Nath Ghosh & Ors. vs. The Hon'ble High Court at Calcutta & Ors. (In re:-
A.P.O.T. No.260 of 2011, G.A. No.1805 of 2011) in support of his above submissions.
On the other hand it is submitted by Mr. Alok Ghosh, learned advocate appearing on behalf of the respondent nos.1, 2 and 3 that the vacancies as declared by the respondent commission in advertisement no.03/2010 dated March 6, 2010 were all anticipated, unforeseen and expected that might arise due to retirement, promotion, death, voluntary retirement, resignation or unwillingness to join in the service by select candidates and there was no existing or clear vacancy for the post in question at that point of time.
It is further submitted by him that in view of Malik Mazhar Sultan (3) (supra) the appointments should be given in accordance with the respective judicial service rules in the States. Having due regard to the above direction of the Apex Court as also taking into consideration the provisions of sub-rule (2) of Rule 9 read with the provisions of Clause (a) of sub-rule 1 (1) of Rule 6 of the West Bengal Judicial (Condition of Service) Rules, 2004, the High Court Administration adopted a resolution on January 12, 2011 to the effect that the actual vacancy being (22+1)=23 only (inclusive of all categories), those vacancies could be filled up from amongst the allotted candidates of the said Examination, 2010, offering them due appointment by the Judicial Department, Government of West Bengal. The above decision was communicated by the Registrar (Judicial Service), High Court, Calcutta, Appellate Side to the Principal Secretary-in-Charge to the Government of West Bengal, Judicial Department by a communication issued under memo no.210-
A dated January 13, 2011 containing that according to the resolution adopted by the High Court, the actual number of vacancies in respect of the posts in the said Judicial Service 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 Secretary-in-Charge to the Government of West Bengal Judicial Department, in his turn, informed the respondent commission to revise the allotment of candidates on the result of the said Examination, 2010, accordingly. As a result the respondent commission forwarded revised allotment of qualified candidates to the Secretary-in-Charge to the Government of West Bengal, Judicial Department for appointment in the said Judicial Service on the result of the said Examination, 2010, recommending 22 (twenty two) candidates (containing names of 12 candidates belonging to Unreserved category, amongst others, arranging the names in order of merit for appointment against 22 (twenty two) vacancies out of 23 (twenty three) vacancies in cancellation of its earlier recommendation.
According to Mr. Ghosh, though a notification no.5733-J dated September 30, 2010 was issued for appointment of 72 (seventy two) judicial officers on promotion to the West Bengal Judicial Service, in the cadre of Civil Judge (Senior Division)/Chief Judicial Magistrate/Additional Chief Judicial Magistrate, from Judicial Officers in the said Judicial Service, mere fact of issuing the above notification did not ipso facto render the feeder posts vacant. The vacancies occurred in respect of the feeder posts only after their posting to the respective promoted posts. The Judicial officers so long remain in the Cadre of Civil Judge (Junior Division)/ Judicial Magistrate etc. without having the posting after issuing of the above notification for appointment on promotion, the posts in the said Judicial Service cannot be alleged to have been fallen vacant. According to him, first 22 (twenty two) Judicial officers out of 72 (seventy two) belonging in the said Judicial Service could be given posting on promotion to the posts of judicial officers belonging in the cadre of Civil Judge (Senior Division)/Chief Judicial Magistrate/Additional Chief Judicial Magistrate etc. on the basis of a resolution adopted in the meeting of appropriate Committee of the High Court for the members of the Judicial Service in its meeting dated January 6, 2011. After filling up the above vacancies, the advertisement no.04/ 2011 dated April 12, 2011, was published to fill up the anticipated vacancies for the year 2011.
It is ultimately submitted by Mr. Ghosh that after taking into consideration the above decision making process, the writ applications filed by the appellants, amongst others, were dismissed.
Reliance is placed by Mr. Ghosh on the decisions of Malik Mazhar Sultan (3) vs. U.P. Public Service Commission & Ors., reported in (2008) 17 SCC 703, Prafulla Kumar Swain vs. Prakash Chandra Mishra & Ors., reported in 1993 Supp. (3) SCC 181, Food Corporation of India & Ors. vs. Bhanu Lodh & Ors., reported in (2005) 3 SCC 618, Government of Orissa Through Secretary, Commerce & Transport vs. Haraprasad Das & Ors., reported in (1998) 1 SCC 487, State of U.P. & Ors. vs. Rajkumar Sharma & Ors., reported in (2006) 3 SCC 330, Madan Lal & Ors. vs. State of Jammu & Kashmir & Ors., reported in AIR 1995 SC 1088, Mansukhlal Dhanraj Jain & Ors. vs. Eknath Vithal Ogale, reported in AIR 1995 SC 1102 and unreported judgment dated February 14, 2013 passed by a Division Bench of this Court in the matter of The Registrar General, High Court, Calcutta vs. Minakshi Chakraborty (In re:- A.P.O. No.365 of 2011, C.S. No.3 of 2005) and The Registrar General, High Court, Calcutta vs. Chaitali Kundu & Ors. (In re:- MAT 253 of 2012) in support of his above submissions.
It is submitted by Mr. Pradip Kumar Roy, learned advocate appearing for the respondent nos.8, 9 and 10 that the respondent commission acted on the basis of the directions received from the respondent authorities in publishing the advertisement no.03/2010 dated March 6, 2010, preparing the select list of the names of 82 (eighty two) candidates qualified on the result of the said Examination, 2010 under announcement no.231 P.S.C/Con. IIA on December 21, 2010, forwarding the revised allotment of qualified candidates to the Secretary-in-Charge to the Government of West Bengal Judicial Department, under memo no.A-10-P.S.C. (A) dated February 23, 2013 recommending 22 (twenty two) candidates arranging the names in order of merit as also in holding West Bengal Judicial Service Examination, 2011 by advertisement no.04/2011 dated April 12, 2011 inviting applications from eligible candidates in prescribed proforma in respect of 73 (Unreserved - 48, SC - 07, ST - 04, BC - 12 (Category A-07, Category B-05) and PH - 02) anticipated vacancies for the year 2011.
Reliance is placed by Mr. Roy on the decisions of unreported judgment dated September 24, 2015 passed by a Division Bench of this Court in the matter of Rivu Dutta vs. The State of West Bengal & Ors. (In re:- F.M.A. No.4416 of 2014 and 11 other identical matters) as also unreported judgment dated April 19, 2016 passed by a Division Bench of this Court in the matter of The Registrar (Judicial Service), High Court, Appellate Side, Calcutta vs. Moumita Sen & Ors. (In re:- MAT 1560 of 2015 with CAN 10110 of 2015 with another appeal) in support of his above submissions.
We have heard the learned Counsels appearing for the respective parties carefully and we have given our anxious considerations to the facts and circumstances of this appeal taking into consideration the materials on record which includes production of the relevant records on behalf of the respondent nos.1, 2 and 3.
With regard to the first contention of the appellants we find that admittedly advertisement no.03/2010 dated March 6, 2010, was published containing declaration of 35 (thirty five) vacancies arising in 2010 in anticipation of retirement/promotion of West Bengal Judicial Service Officers from the said Judicial service as also 10 (ten) vacancies which might arise due to death, voluntary retirement, resignation or unwillingness to join the service by select candidates. The learned Single Judge took into consideration the above advertisement for examining the validity of the decision making process of the respondent authorities in the light of the provisions of Rules 6, 8 and 9 of the West Bengal (Condition of Service) Rules, 2004 which run as under:-
"6. Cadre:- (1) the Judicial Officers other than District Judge of the service as mentioned in Part-I, shall include the following posts forming the cadre namely:
(a) Civil Judge / Judicial Magistrate / Metropolitan Magistrate / Municipal Magistrate / Magistrate of the Juvenile Board:
(b) Chief Metropolitan Magistrate / Additional Chief Metropolitan Magistrate / Chief Judicial Magistrate / Additional Chief Judicial magistrate / Senior Civil Judge / Assistant Sessions Judge / Sub-Divisional Judicial Magistrate / Senior Municipal Magistrate / The Judge, Presidency Small Causes Court / The Registrar, District Judges's Court.
8. Appointment (I) the appointment to any of the posts as mentioned in clause (a) of sub-rule (1) of rule 6, shall be made by the Governor in accordance with the West Bengal Civil Service (Judicial) Recruitment Rules, published with this Department notification no.1713-J, dated 31st March, 1951, as subsequently amended, after consultation with the High Court and the Commission. (2) The appointment to any of the posts as mentioned in clause (b) of sub-rule (1) of rule 6, shall be made by way of selection through promotion from the posts as mentioned in clause (a) of sub-rule (1) of rule 6, by the High Court, on the basis of merit-cum-seniority.
Provided that the selection to the posts as mentioned in clause (b) of sub-rule (1) of rule 6, shall be made only on completion of six years service in the posts as mentioned in clause (a) of sub-rule (1) of rule 6, on the first day of January of the year in which selection is to be made.
9. LIST OF CANDIDATE RECOMMENDED BY COMMISSION:-
(1) The Commission shall, on the basis of the examination conducted by it, forward to the Government a list of qualified candidates in order of merit and such list shall be published for the general information. (2) Subject to any other provision of these rules, each of such candidates shall be considered for appointment to the available vacant posts as mentioned in clause (a) of sub-rule (1) of rule 6, in the order in which their names appear in the merit list."
In examining the decision making process of the respondent authorities, the learned Single Judge further took into consideration the decision of the Hon'ble Supreme Court passed in the matter of Malik Mazhar Sultan (3) (supra).
By virtue of the above judgment the Hon'ble Supreme Court, inter -alia, directed all the State Governments, Union Territories and/or High Courts to keep suggestions regarding the time schedule to be fixed so that every year vacancies that may occur are filled up. According to the Hon'ble Supreme Court, the above direction was given for the purpose of evolving a mechanism to speedily determine and fill vacancies of Judges at all levels observing that admittedly steps were required to be taken for determination of vacancies, issue of advertisement, conducting of examinations, interviews, declaration of final results and issue of orders of appointment in respect of the cadre of Civil Judge (Junior Division) who would be appointed by direct recruitment. Directions for appointment to the posts of Civil Judge (Junior Division)/ Judicial Magistrate etc. as provided in paragraph (D) of paragraph 7 of the above judgment were as follows:-
"D. For appointment to the posts of Civil Judge (Junior Division) by direct recruitment:-
Sl. No. Description Date ____________________________________________________________
1. Number of vacancies to be 15th January notified by the High Court.
Vacancies to be calculated Including
(a) Existing vacancies
(b) Future vacancies that may arise within one year due to retirement.
(c) Future vacancies that may that may arise due to promotion, death or otherwise, say ten per cent of the number of posts.
2. Advertisement inviting applications 1st February From eligible candidates.
3. Last date for receipt of application. 1st March
4. Publication of list of eligible applicants. 2nd April The list may be put on the website.
5. Despatch/Issue of admit cards to the 2nd to eligible applicants. 30th April.
6. Preliminary written examination 15Th May Objective questions with multiple Choice which can be scrutinized by Computer.
7. Declaration of result of preliminary 15th June written examination
(a) Result may be put on the website and also published in the newspaper.
(b) the ratio of 1:10 of the available Vacancies to the successful Candidates be maintained.
8. Final written examination Subjective / 15th July Narrative.
9. Declaration of result of final written 30th August examination
(a) Result may be put on the website and also published in the newspaper.
(b) The ratio of 1:3 of the available Vacancies to the successful candidates be maintained.
(c) Dates of interview of the successful candidates may be put on the internet which can be printed by the candidates and no separate intimation of the date of interview need be sent.
10. Viva Voce. 1st to 15th October
11. Declaration of final select list and 1st November communication of the appointing authority.
(a) Result may be put on the website and also published in the newspaper.
(b) Select list be published in order of merit and should be double the number of vacancies notified.
12. Issue of appointment letter by the 1st December competent authority for all existing vacant posts as on date.
13. Last date for joining. 2nd January of the following year."
Apart from the above directions, the Hon'ble Supreme Court passed two other relevant orders in the above matter by an order dated March 24, 2009 passed in connection with I.A. No.56 the direction regarding selection and appointment of members of subordinate judicial officers in various Courts were given as follows:-
"On 4th January, 2007, this Court had given certain directions regarding the selection and appointment of Members of subordinate judicial officers in various courts. In the tabular form, the number of vacancies is notified by the High Court/Public Service Commission. It was directed that the further vacancies that may arise due to elevation or death or otherwise, 10 per cent of the posts shall be notified and this is referred at P.16 of the order, it is further stated:
"We further directed that ten per cent of unforeseen vacancies would be in respect of sanctioned posts and not vacancies occurring in a particular year."
It has been pointed out by the counsel appearing for the various High Courts that 10 per cent of the sanctioned posts are notified in some States. A large number of posts are to be notified whereas there was corresponding number of vacancies to be filled if the candidates are selected in the select list.
There may be an expectation for such candidates to get appointment and this creates unwanted litigation by the candidates and it is prayed that the existing vacancies alone be notified along with the anticipated vacancies that may arise in the next one year and some candidates also be included in the wait list prepared by the High Courts/PSCs.
In suppression of the order passed by this Court on 4.1.2007, this Court direct that in future the High Courts/PSCs shall notify the existing number of vacancies plus the anticipated vacancies for the next one year and some candidates also be included in the wait list. To this extent earlier order is modified.
I.A. is disposed of accordingly."
By a further order dated April 3, 2006, the Apex Court directed all States, Union Territories and/or High Courts to provide for time schedule for the purpose of selection and appointment of members of subordinate judicial officers in various Courts as follows:-
"All State Governments, Union Territories and/or High Courts are directed to provide for time schedule for the aforesaid purposes so that every year vacancies that may occur are timely filled. All State Governments, Union Territories and High Courts are directed to file within three months details of the time schedule so fixed and date from which time schedule so fixed would be operational."
After taking into consideration the materials which have been produced before us on behalf of the respondent nos.1, 2 and 3, we find that the Administrative Committee of this High Court adopted a resolution in its meeting dated January 13, 2010 relating declaration of vacancies in said Judicial Service in the year 2010 which was later approved by the Full Court. The above resolution was as follows:-
"It is resolved that the number of vacancies to be notified for the year 2010 will be 54 (fifty four), i.e., 29 (twenty nine) anticipated vacancies plus 15 (fifteen) vacancies expected to arise on account of retirement in the year 2010 plus 10 (ten) unforeseen vacancies."
It further appears from the materials on record that in the meantime a communication bearing no.7971-J dated December 1, 2009 submitted by Secretary-in-Charge, Government of West Bengal, Judicial Department that the filling up of 25 (twenty five) clear vacancies as also 2 (two) further vacancies arising out of death and resignation of two Civil Judges (Junior Division) during 2009 had been processed but after detailed scrutiny of the existing vacancies the High Court Administration found that only 18 (eighteen) vacancies in the cadre of Civil Judge (Junior Division)/Judicial Magistrate etc. were in existence. Therefore, it was decided on the suggestion of the Judicial Department of the Government of West Bengal to offer appointment to the first 18 (eighteen) candidates only keeping the rest 9 (nine) candidates in the waiting list till the availability of the all further vacancies. In view of the above the total number of vacancies arising in the year 2010 due to retirement/promotion of Judicial Officers came to 35 (thirty five) vacancies and the number of vacancies which might arise due to death, voluntary retirement, resignation or unwillingness to join the service by selected candidates came to 10 (ten) vacancies after keeping aside 9 (nine) vacancies for accommodating the aforesaid 9 (nine) candidates from the select list of 2009. In this regard the communication of the Secretary-in-Charge to the Government of West Bengal issued under memo no.488-J/M-01/09 dated February 1, 2010, addressed to the High Court Administration is required to be taken into consideration and the same is quoted below:-
"Sir, With reference to above I am to state that in pursuance of vacancy report in the post of Civil Judge (Jr. Divn.) for the year, 2009 as received from the Hon'ble Court necessary reporting was made to the P.S.C., West Bengal and on receipt of allotment of candidates on the result of the relevant Examination, 2009, the cases of 27 candidates were processed for issuing appointment as such in their favour with due intimation to the Hon'ble Court. Necessary notification under No.313-J dated 21.01.2010 appointing the 27 (twenty seven) candidates as Civil Judge (Jr. Divn.) on provisionally and temporary basis for a period of three months was issued after observing necessary formalities and in pursuance of the schedules fixed by the Hon'ble Apex court read with a petition filed by the Govt. before the Apex Court for granting time to complete the appointment procedure by 1st February, 2010.
As anticipated/expected vacancies report in the judicial service for the year, 2010 as received from the Hon'ble Court as (29+15) = 44. The P.S.C., West Bengal is being reported for (44-9) = 35 vacancies keeping aside 9 subsequent vacancies for 9 candidates already appointed as such for the year, 2009.
Ten vacancies arising out due to death/voluntary retirement/resignation etc. are also being reported to the P.S.C., West Bengal."
The Secretary-in-Charge to the Government of West Bengal, Judicial Department requested the respondent commission to take appropriate action in the matter of holding West Bengal Judicial Service Examination 2010 for recommendation of the names of selected candidates in the rank of Civil Judge (Junior Division)/Judicial Magistrate etc. by a communication issued under memo. no. 489- J/JD/IM-01/09 dated February 1, 2010 as follows:-
"Sir, I am directed to forward herewith in the prescribed proforma an estimate of vacancies to be filled up on the results of the W.B.J.S. Examination, 2010. The vacancies will be as follows:-
a) Anticipated/Expected that may arise due to promotion/retirement 35
b)Vacancies which may arise due to death resignation/voluntary/retirement/unwillingness to join 10 I am further directed to say that the appointment of the vacancies amongst the different categories will be as follows:-
As (a) above as (b) above (i) Unreserved - 23 08 (ii) S.C. (10%) - 03 01 (iii) S.T. (5%) - 02+04 NIL (iv) B.C. (7%) - 02 01 (v) P.H. (3%) - 01 NIL *04 vacancies reserved for S.T. for the year 2008 are carried forward.
__________________________________________________________ Total - 35 10 As per order of the Hon'ble Apex Court in Malik Mazhar Sultan (SLP 22523/05) cases the next examination will have to be conducted as per schedule.
The vacancies as reported by the Hon'ble High Court, Calcutta vide NO.221-A dated 27.01.10 read with 222-A dated 27.01.2010 have been reproduced above and in the format as well.
Accordingly I am to request you to take appropriate action in the matter.
Yours faithfully, Secretary-in-Charge"
After taking into consideration the aforesaid facts and circumstances from the relevant records produced on behalf of the respondent nos.1, 2 and 3 we have no doubt or dispute that the vacancies declared by advertisement no.03/2010 dated March 6, 2010 were calculated as 35 (thirty five) 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 (ten). Those vacancies were not actual vacancies in existence at the time of issuing the advertisement no.03/2010 dated March 6, 2010. So, we do not find any substance in the submission made on behalf of the appellants that 35 (thirty five) vacancies as notified by the respondent commission were the vacancies in the said Service at the time of publishing the above advertisement. Therefore, there was no error or infirmity in the impugned judgement in this regard.
With regard to the next contention of the appellants of alleged reduction in the number of existing vacancies in the cadre in question from 35 (thirty five) to 23 (twenty three), The Learned Single Judge rightly observed that the Court had to rely upon the disclosure made on behalf of the respondents on how many vacancies actually occurred in 2010 as there was no other option for the Court to compute such vacancies on the basis of the disclosed materials. The Learned Single Judge accepted the submissions made by Mr. Ghosh on behalf of the respondent nos.1,2 and 3, that actual vacancies did not occur in the posts of said Judicial Service immediately on issue of the order of promotion to the posts in the cadre of Civil service (Senior Division)/ Chief Judicial Magistrate/ Additional Chief Judicial Magistrate and The Learned Single Judge further accepted the stand of the High Court administration as evident from resolution of the Administrative Committee of the High Court in its meeting held on January 13, 2011, that there were 23 (twenty three) actual vacancies occurred in respect of the posts belonging to the said Judicial Service.
we find from the materials which have been made available by the respondent nos.1, 2 and 3 before us that 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 the following resolution:-
"1. It is resolved 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 learned Single Judge was not inclined to accept the contention of the appellants with regard to the vacancies which occurred consequent upon promotion from the promotion list contained in the notification no.5733-J dated September 30, 2010, taking into consideration the above facts and circumstances. We do not find any error or infirmity in the above finding of the learned Single Judge with regard to the aforesaid contention of the appellants.
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. We do not find any substance in the submissions made on behalf of the appellants that any of the aforesaid vacancies could be filled up from the rest of the qualified candidates whose names appeared in the select list consisting of the names of 82 candidates qualified on the results of the said Examination, 2010 on the result of the said Examination, 2010. So, there was no violation of the guidline framed by the Apex Court in connection with the Malik Mazhar Sultan (3) (supra) in this regard as alleged.
In view of the aforesaid facts and circumstances the decision of Malik Mazhar Sultan (3) (supra) or any order passed in connection with the above decision do not help the appellants. In the decision of Kazi Abdul Hasen (supra) it was the admitted fact that the vacancies of Public Service Commission failed to publish the result of all successful candidates and there was further failure to fill up all the vacancies arising for the relevant year. So, in view of the aforesaid distinguishable fact the above decision does not help the appellants. In the matter of Manabendra Nath Ghosh & Ors. (supra), a Division Bench of this Court found that legitimate vacancies to which the appellants could seek appointment were diverted to carry forward those vacancies of the preceding year and in that context they were directed to be given posting. The above fact is distinguishable with the facts and circumstances involved in the instant appeal.
In view of the discussions and observations made hereinabove the impugned judgment does not require our interference.
This appeal stands dismissed.
There will be, however, no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.
I agree. ( Debasish Kar Gupta )
( Md. Mumtaz Khan, J.)