Calcutta High Court (Appellete Side)
Calcutta And Another vs Dwijendranath Roy Barman on 8 April, 2015
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
Form No. J. (2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present:
The Hon'ble Justice Subhro Kamal Mukherjee
and
The Hon'ble Justice Shib Sadhan Sadhu
M.A.T. No. 554 of 2014
Registrar General-cum-Secretary, Selection Board, High Court at
Calcutta and another
...Appellants.
-Versus-
Dwijendranath Roy Barman
...Respondent.
For the appellants: Mr. Kishore Dutta,
Mr. Siddartha Banerjee.
[
For the respondent: Mr. Anuj Singh,
Ms. Purnima Nath.
Judgment on: April 8, 2015.
Subhro Kamal Mukherjee, J.:
The Hon'ble Single Judge considered four writ petitions, that is, the Writ Petition Nos. W.P No. 4832 (W) of 2014, W.P No. 22579 (W) of 2013, W.P No. 22581 (W) of 2013 and W.P No. 22582 (W) 2013 analogously and disposed them by a common judgment and order dated March 14, 2014.
While the second, third and fourth writ petitions were dismissed, the first writ petition, filed by Dwijendranath Roy Barman, the respondent in this appeal, was allowed to the extent indicated in the impugned judgment and order dated March 14, 2014.
The respondents in W. P. No. 4832 (W) of 2014 have come up in appeal against the said judgment and order.
The writ petitioner, a member of the West Bengal Judicial Service, is presently posted as the Additional District and Sessions Judge at Uluberia, District - Howrah.
In compliance of a decision of the Supreme Court of India dated May 12, 2006 in I.A. Nos. 11, 12, 17 and 18 in Transferred Case (Civil) No. 22 of 2001 Brij Mohan Lal - versus- Union of India and others, the Registrar General of this Court issued a notification bearing no. 5337A dated August 18, 2006 recommending the names of 32 officers in the rank of Civil Judge (Senior Division), including this writ petitioner, for ad-hoc promotion to fill up 32 fast track courts in the State of West Bengal.
While the writ petitioner/respondent was working as a judge of the fast track court, the learned Registrar General-cum-Secretary, Selection Board of this Court, by a notification, informed that 20 vacancies were declared on March 29, 2012 in the cadre of District Judge (Entry Level) in the West Bengal Judicial Service and that 14 posts (being 65% of the total vacancies) would be filled up by way of normal promotion on merit- cum-seniority basis.
Immediately, thereafter, on April 19, 2012, the Supreme Court of India delivered the judgment in Transferred Case (Civil) No. 22 of 2011 in the case of Brij Mohan Lal -versus- Union of India and others reported in (2012) 6 SCC 502.
The learned Registrar General-Cum-Secretary of this Court issued another notification dated May 14, 2012, whereby the seniority list of the Judicial Officers, who were eligible for coming under the zone of consideration for promotion to the cadre of District Judge (Entry Level) through normal promotion for 2012, was published.
On May 7, 2013, a notification was issued by the learned Registrar (Judicial Service) of this Court notifying, inter-alia, that several Judicial Officers, including the petitioner, would come under the zone of consideration in the process of selection through normal promotion for appointment in the cadre of District Judge (Entry Level).
Responding to the said notification dated May 7, 2013, the writ petitioner/respondent participated in the recruitment process for appointment of District Judge (Entry Level) through normal promotion in the year 2013. The merit list for normal promotion 2013 was published under Notification No. 3352RG dated August 30, 2013 for filling up of vacancies in the cadre of District Judge (Entry Level).
The merits of the candidates were judged based on five years Annual Confidential Report, Judgment Evaluation and Viva Voce. In the merit list the writ petitioner/respondent secured 84th position in terms of merit. The writ petitioner/respondent could not, therefore, qualify for the post of District Judge (Entry Level) through normal promotion.
Challenging the merit list published under Notification No. 3352RG dated August 30, 2013 as contrary to the directives of the Supreme Court of India in the case of Brij Mohan Lal (supra), the writ petitioner/respondent prayed that the merit list be recast by giving weightage to those Judicial Officers, who had served as Judges of the fast track courts in accordance with the decision in the case of Brij Mohan Lal (supra).
The Hon'ble Single Judge, in the judgment and order under appeal, held that the process of recruitment was faulty as it did not take into account the weightage that ought to have been given to the Judicial officers for the years they had served as fast track court judges. It was, further, held that upon the Supreme Court of India mandating such weightage to be given, it is not open to the High Court to disregard the same.
The Hon'ble Single Judge directed that the writ petitioner should be accommodated after giving him due weightage in terms of clause (c) of paragraph 207.13 of the judgment in the case of Brij Mohan Lal (supra) and after providing the weightage, if the petitioner qualifies for promotion, the writ petitioner would be dealt with in accordance with law.
Mr. Kishore Dutta, the learned advocate appearing on behalf of the appellants, contended that the decision of the Supreme Court of India in the case of Brij Mohan Lal (supra) has no manner of application in filling up of the posts of District Judge (Entry Level) from the fast track court judges in the State of West Bengal. It is contended that the decision in the case of Brij Mohan Lal (supra) was rendered on a different set of facts and would not apply in this case.
Mr. Dutta placed the decision of the Supreme Court of India in the case of Brij Mohan Lal (supra) in extenso. He has submitted that in the case of Brij Mohan Lal (supra), there were two sets of petitioners, namely, (i) Ad hoc fast track court judges claiming regularisation in their services; and (ii) directly recruited fast track court judges from the Bar, whose services were terminated and were claiming regularisation. Referring to paragraphs 23, 24, 29, 31 and 37 of the judgment in the case of Brij Mohan Lal (supra), it has been contended that the appointees were ad-hoc Judges under the fast track court scheme and in that case, their termination was sought to be challenged, being stigmatic and punitive.
Referring to paragraphs 65, 76 and 80 of the judgment in the case of Brij Mohan Lal (supra), it is contended that the Supreme Court of India was considering whether the ad hoc judges under the fast track court scheme in the States of Gujarat, Rajasthan, Orissa and Madhya Pradesh, who were appointed in temporary posts, initially, sponsored by Union of India and stopped with effect from March 31, 2011, could claim regularisation and permanency.
Referring to paragraphs 113 to 118 of the judgment in the case of Brij Mohan Lal (supra), it is contended that in those paragraphs, the Supreme Court of India was considering the right of the advocates, who were directly recruited as fast track court judges, but whose services were terminated, would have a restrictive right to practice.
Mr. Dutta has taken us through paragraph 207 of the judgment in the case of Brij Mohan Lal (supra) and contended that the directives of the Supreme Court of India was in exercise of power under Article 142 of the Constitution of India and it did not lay down any law. It is contended that such directives were intended to do complete justice to the lis pending before the Supreme Court of India.
Referring to paragraph 207.13 of the judgment in the case of Brij Mohan Lal (supra), Mr. Dutta submits that the directives contained therein were confined to the litigants before the Supreme Court of India or similarly situated persons. It has been contended that the expressions "...who were promoted as fast track court judges...", "...having requisite experience in service..." and "...shall be entitled to be absorbed and remain promoted..." in paragraph 207.13 clearly evidences that the directives were confined to the litigants before the Supreme Court of India.
Mr. Dutta, further, submits that the directives were confined to the fast track court judges qua their rights as fast track court judges in respect of absorption, regularisation and promotion in that post and did not percolate to promotion in the post of District Judge (Entry Level).
In his alternative submission, Mr. Dutta compared paragraph 207.9(d) with paragraph 207.13(c) of Brij Mohan Lal (supra) and contended that while in paragraph 207.9(d) the Supreme Court of India laid down the criteria of granting weightage, that is, one mark per year of service, in paragraph 207.13(c) the Supreme Court of India did not provide the criteria for granting weightage. According to Mr. Dutta the respective High Courts should first lay down the criteria of giving weightage and the yardstick thereof and then only a candidate would be entitled to weightage for rendering service as Fast Track Court Judges.
Mr. Dutta submits that the writ petitioner/respondent tried to draw support in his favour from a proposal placed before the Administrative Committee of this Court held on July 11, 2012 which, inter alia, proposed that:
"In view of the directions of the Hon'ble Supreme Court in the present case of Brij Mohan Lal versus Union of India, there is now need to give weightage to the officers of Civil Judge (Senior Division) at the time of promotion to the cadre of District Judge for rendering service as the Judge of Fast Track Courts with effect from their joining to the Fast Track Courts. Accordingly, the policy is to be taken by the Hon 'ble Court to decide how much weightage is to be given to the officers of Civil Judge (Senior Division) for rendering their service as Judge of Fast Track Courts. It is proposed that one year of weightage may be given for rendering three years service in the Fast Track Courts by Civil Judge (Senior Division) while promoted to the rank of District Judge (Entry Level) as recommended by the Shetty Commission, but rejected by the Hon'ble Supreme Court in "All India Judges Association".
Mr. Dutta has taken us through the decision of the Administrative Committee, which reads as follows:
"Discussed. The proposal of the Registry is accepted. It is resolved that the vacancies as proposed shall be filled up in accordance with the rules of recruitment and keeping in view the observations made by the Hon'ble Supreme Court in the case of Brij Mohan Lal -vs- Union of India and so also in All India Judges Association case".
It is contended by the learned counsel for the appellants that the Administrative Committee in its meeting, specifically, resolved that the vacancies would be filled up in accordance with the Rules of Recruitment and keeping in view the observations of the Supreme Court of India in the case of Brij Mohan Lal (supra) and All India Judges Association case. It is contended that since the Rules do not provide for granting weightage, the writ petitioner/ respondent or the other Judicial Officers are not entitled to any weightage. He, also, contends that the proposal, quoted above, through such resolution, was not adopted or approved. Hence, the writ petitioner was not entitled to any weightage.
According to Mr. Dutta, the recruitment was made in terms of Rule 26 of the West Bengal Judicial (Conditions of Service) Rules, 2004 which inter-alia, provides that the appointment in the rank of District Judges by selection through promotion is to be made on the basis of merit-cum- seniority and on passing of a suitability test. Granting weightage for having served as a fast track court judge would seriously affect the criteria of merit-cum-seniority. Weightage would do away with the merit of the candidates as the most unmeritorious Fast Track Court Judge may have the longest tenure as a fast track court judge. He contends that granting weightage would be contrary to the Rules and the Administrative Committee was right in not resolving to grant weightage for rendering services as Fast Track Court Judges.
Lastly, Mr. Dutta has contended that the writ petitioner has taken a calculative chance and has participated in the process of selection and after becoming unsuccessful in the selection process, the writ petitioner has thrown a challenge to the selection process in this proceeding. The writ petitioner has, thus, waived his right to challenge the selection process even assuming that the same was faulty.
Mr. Anuj Singh, the learned advocate for the writ petitioner/respondent heavily relies on the decision of the Supreme Court of India in the case of Brij Mohan Lal (supra) and has contended that the writ petitioner is entitled to be awarded weightage as per paragraph 207.13(c) of the said judgment.
Replying to the contentions raised by the learned advocate for the appellants on the applicability of the directives in the case of Brij Mohan Lal (supra) in the present case, Mr. Singh relies upon paragraph 190(d) and paragraphs 131 to 135 of the judgment in the case of Brij Mohan Lal (supra) and has contended that the said decision is also applicable in respect of the Fast Track Court Judges in the State of West Bengal.
Mr. Singh contended that the Administrative Committee of this Court in the meeting held on July 11, 2012 have, inter-alia, resolved that "Proposal of the Registry is accepted". This demonstrates that the proposal for providing weightage for rendering three years' service as Fast Track Court Judges stood approved by the said Resolution and the writ petitioner was entitled to be granted weightage irrespective of the West Bengal Judicial (Conditions of Service) Rules, 2004 providing for the same. Mr. Singh contended that the merit list, if recast, by granting weightage, the writ petitioner/respondent would secure a position higher up in the merit list and within the first 48 judicial officers in the merit list and, consequently, would be entitled to be promoted in the post of District Judge (Entry Level).
We have considered the rival submissions advanced by the learned advocates for the parties. The rights and obligations of the parties in this proceeding centres round the decision of the Supreme Court of India in the case of Brij Mohan Lal (supra). While the appellants contend that the judgment in the case of Brij Mohan Lal (supra) is not of universal application and is confined to the parties to the lis pending before the Supreme Court of India and/or the fast track court judges in the States of Gujarat, Rajasthan, Orissa and Madhya Pradersh, the writ petitioner/respondent contends that such decision was not confined to only those four States and would apply, also, in the State of West Bengal.
The observation of the Supreme Court of India in paragraph 207 in Brij Mohan Lal (Supra) are hereby relied upon by both the parties. The Supreme Court of India consciously expressed that the directives were, inter-alia, "...to do complete justice to the parties before us in terms of Article 142 of the Constitution... ".
When the Supreme Court of India has recorded that its directives were under Article 142 of the Constitution, its directives do not constitute a binding precedent. No law has been laid down under Article 141 of the Constitution. It is not of universal application. The directives have to be confined to the parties before the Supreme Court of India. Power under Article 142 of the Constitution, as is well settled, is exercised by the Supreme Court of India having regard to the peculiar facts of a case before it and to do justice to the parties, who would otherwise be placed in an inequitable situation. The paramount consideration in the exercise of such power is to ensure that no injustice is caused to the parties before the Supreme Court of India. The directives in the case of Brij Mohan Lal (supra), as the Supreme Court of India has recorded, are confined to the lis, that is, the parties before it or the Judicial Officers of the States of Gujarat, Rajasthan, Orissa and Madhya Pradesh.
However, the Fast Court Judges in the State of West Bengal belong to the permanent cadre of Civil Judge (Senior Division) whereas the Judicial Officers in the States of Gujarat, Rajasthan, Orissa and Madhya Pradesh before the Supreme Court in Brij Mohan Lal (supra) were ad hoc Judges under the fast track court scheme. A judgment rendered in the case of ad-hoc appointees-cannot be applied to judicial officers belonging to permanent cadre. The directives contained in the case of Brij Mohan Lal (supra) is not a binding precedent and the directives at paragraph 209.13(c) of the judgment is not applicable in this case in the State of West Bengal unless existing Rules are amended in conformity with the directives of the Supreme Court of India in the case of Brij Mohan Lal (supra).
The minutes of the Administrative Committee meeting, also, records that the vacancies would be filled up according to the Recruitment Rules and keeping in view the observations of the Supreme Court of India in the case of Brij Mohan Lal (supra) and All India Judges case. The contention by recording, inter alia, 'The proposal of the Registry is accepted', the Administrative Committee accepted the proposal for one year's weightage for rendering three years' service is not acceptable. The proposal, as recorded on the left hand side column, is for establishment of new Courts and regularization of Fast Track Court Judges. The acceptance of such proposal by the Administrative Committee cannot be construed to include the proposal for granting weightage as contended by the writ petitioner/respondent.
The West Bengal Judicial (Conditions of Service) Rules, 2004 has been framed in exercise of power conferred under Article 309 of the Constitution of India and complying with the procedure under Articles 233 and 234 of the Constitution. Rule 26(1)(b) of the West Bengal Judicial (Conditions of Service) Rules, 2004 requires selection through promotion on the basis of merit-cum-seniority. The Rules have not been amended. Mr. Dutta placed reliance upon the decision in the case of Sasidhar Reddy Sura versus State of Andhra Pradesh and others reported in (2014) 2 SCC 158 and contended that in a conflict of this nature, the Rules shall prevail. We find that the Supreme Court of India, after considering a situation of similar nature, has upheld the primacy of the Rules, inter alia, observing that provisions of the statutory rules must be followed.
The selection following the West Bengal Judicial (Conditions of Service) Rules, 2004 cannot be faulted on the ground that the decision in the case of Brij Mohan Lal (supra) was not followed.
The writ petitioner/respondent should not be entertained as he has taken a chance by participating in the selection process. The decision of the Supreme Court of India in the case of Madan Lal and others versus State of Jammu & Kashmir and others reported in (1995) 3 SCC 486 was relied upon before the learned Single Judge wherein the Supreme Court of India, inter-alia, held that the result of interview/test on merit cannot be challenged by the candidate, who takes a chance to get selected at the interview and who ultimately finds himself to be unsuccessful.
The writ petitioner/respondent has subjected himself to the process of selection without taking any objection. It is only after not finding his name in the merit list the writ petitioner/respondent chose to challenge the process of selection on the basis that no weightage has been granted in view of the decision of the Supreme Court of India. The writ petitioner/respondent is debarred from throwing a challenge to such selection process.
The selection process was held in accordance with West Bengal Judicial (Conditions of Service) Rules, 2004. The minutes of the Administrative Committee meeting did not confer any right in favour of the writ petitioner/respondent for being granted weightage for having served as Fast Track Court Judge. Rules, unless amended, the writ petitioner/respondent cannot claim weightage. The writ petitioner/respondent cannot claim weightage as a matter of right as none of his legal rights have been infringed. The writ petitioner/respondent cannot draw support from the directives of the Supreme Court of India in the case of Brij Mohan Lal (supra). The directives of the Supreme Court of India were confined to the parties to the lis pending before the Supreme Court of India. Moreover, the writ petitioner/respondent, in view of the decision in the case of Madanlal (supra), is not entitled to challenge the selection process after having participated in the selection process.
In view of discussion hereinabove, the appeal is allowed. The impugned judgment and order dated March 14, 2014 passed in Writ Petition No. 4832 (W) of 2014 is set aside. The Writ Petition No. 4832 (W) of 2014 is dismissed.
We, however, direct the parties to bear their respective costs in this appeal.
(Subhro Kamal Mukherjee, J.) Shib Sadhan Sadhu, J.
I agree.
(Shib Sadhan Sadhu, J.)