Calcutta High Court (Appellete Side)
Sri Parth Sarathi Sen & Ors vs Registrar General on 12 May, 2017
W.P. No. 8027 (W) of 2017
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Sri Parth Sarathi Sen & Ors.
Vs.
Registrar General, High Court, Calcutta & Ors.
For the Petitioners : Mr. Shaktinath Mukherjee, Sr. Advocate
Mr. Mukul Lahiri, Sr. Advocate
Mr. Kallol Bose, Advocate
Mr. Anirban Pramanick, Advocate
For the Respondent : Mr. Bikash Ranjan Bhattacharya, Sr. Advocate
Nos. 34 and 35 Mr. Anindya Lahiri, Advocate
Mr. Samrat Dey Pal, Advocate
For the Respondent : Mr. Arunava Ghosh, Advocate
No. 31 Mr. Mainak Ganguly, Advocate
For the High Court : Mr. Jaydip Kar, Sr. Advocate
Administration Mr. Siddhartha Banerjee, Advocate
For the Respondent : Mr. Jayanta Kumar Mitra, Sr. Advocate
Nos. 20, 71, 74, 78 and 80 Mr. Biswaroop Bhattacharya, Advocate
Mr. Pratik Majumder, Advocate
For the Respondent Nos. 6, 7, : Mr. Pratik Dhar, Sr. Advocate 8, 10, 11, 14, 15, 16, 23, 25, Mr. Ritwik Pattanayak, Advocate 27, 41, 47, 50, 52, 57, 63, 72 And 86 For the Respondent : Mr. Soumya Majumder, Advocate Nos. 17, 49, 62 and 64 For the State : Ms. Chama Mookherjee, Advocate Ms. Monika Pandit, Advocate Respondent : Md. Amzad Hossain No. 42 (in person) Respondent : Mr. Tapan Kumar Das-II No. 81 (in person) Hearing concluded on : May 5, 2017 Judgment on : May 12, 2017 DEBANGSU BASAK, J.:-
The petitioners have challenged a letter Circular bearing No. 4139- R (JS) dated November 29, 2016 issued by the High Court administration.
By such letter circular, the administration has published a draft gradation list of Judicial Officers for the post of District Judge (Entry Level). According to the petitioners, the draft gradation list published under cover of the impugned circular has not been prepared in accordance with the West Bengal Judicial (Conditions of Service) Rules, 2004.
Learned Senior Advocate appearing for the petitioners has submitted that, the petitioners are Judicial Officers in the cadre of District Judge (Entry Level). The petitioners are direct recruits to the post of District Judge (Entry Level). They were recruited in the year 2009. The draft gradation list published by the impugned circular deals with the appointees to the post of District Judge (Entry Level) in the year 2009. The petitioners do not find their place in the draft gradation list. On such score alone, the impugned draft gradation list is bad as the petitioners as direct recruitees are to be placed in a draft gradation list dealing with the year 2009.
Learned Senior Advocate for the petitioners has referred to the West Bengal Judicial (Conditions of Service) Rules, 2004 (hereinafter referred to as the Rules of 2004 for the sake of convenience). He has submitted that, the Rules of 2004 was promulgated subsequent to and in fact consequent upon a direction issued by the Hon'ble Supreme Court of India in the decision reported at 2002 Volume 4 Supreme Court Cases page 247 (All India Judges' Association & Ors. v. Union of India & Ors.). The Rules of 2004 prescribe that the Higher Judicial Officer in the rank of District Judges would include the posts of District Judge (Entry Level), District Judge in selection grade and District Judge in super time pay scale in forming the cadre. The Rules of 2004 have came into effect from October 1, 2004. On and from October 1, 2004, the recruitment to the post of District Judge (Entry Level) has to be effected in terms of the Rules of 2004. The Rules of 2004 prescribe three avenues of appointment to such post namely, by way of direct recruitment from the Bar, by way of selection through promotion on the basis of merit cum seniority and on passing of a suitability test from amongst such Judicial Officers other than District Judges as mentioned in Rules 6(1)(b) and by promotion strictly on the basis of merit through limited competitive examination of such officers other than District Judges as mentioned in Rule 6(1)(b) of the Rules of 2004. No other method of appointment to the post of District Judge (Entry Level) is permissible after the Rules of 2004 have come into effect.
A 40 Point roster system read with the Andhra Pradesh model governs the seniority amongst the appointees made under the Rules of 2004. Rules 24, 26 and 31 have been referred to in support of such contentions. Referring to Rule 31 of the Rules of 2004, learned Senior Advocate for the petitioners has submitted that, the seniority of a direct recruit to the post of District Judge (Entry Level) is to be considered from the date of appointment of such person to such post and not from the date of permission granted by the State Government to appoint such person to such post. In respect of the jump promotees and direct recruits, the date of the order of selection to the post of District Judge (Entry Level) is to govern their seniority. Seniority cannot be claimed from the date when the vacancies had accrued. An appointment to the post does not relate back to the date of vacancy. Reliance has been placed on All India Reporter 2000 Supreme Court page 85 (Ajit Kumar Rath v. State of Orissa) in support of such proposition. Referring to the impugned Circular, learned Senior advocate for the petitioners has submitted that, the administration has proceeded on such erroneous basis of accrual of vacancies to consider seniority and therefore the same is bad.
He has submitted that, after the Rules of 2004 coming into effect, an attempt to recruit for the purpose of District Judge (Entry Level) did not fructify in 2006. The first recruitment drive is of 2009. According to him, in 2009, all three avenues permissible under the Rules of 2004 were employed for the purpose of recruitment to such post. He has referred to the notifications issued by the High Court administration in this regard. He has submitted that, by a notification dated March 31, 2009, the High Court administration has declared 131 vacancies to be filled up through the three avenues contemplated under the Rules of 2004. He has referred to the notifications dated April 15, 2009 which relates to normal promotees and the jump promotees. He has submitted that, by a notification dated September 1, 2009, the High Court administration had prepared a panel in respect of the normal promotees. He has referred to the notification bearing No. 8846A dated October 28, 2009 and has submitted that, 31 officers were granted promotion to the cadre of District Judge (Entry Level) and were posted as such. This notification includes 5 jump promotees apart from 26 normal promotees. The direct recruits were also posted as District Judge (Entry Level) by a notification bearing no. 8847A dated October 28, 2009. Appointees under the three avenues prescribed under the Rules of 2004 being granted the post on the same day, in terms of the first proviso to Rule 31 of the Rules of 2004, inter se seniority from amongst them is governed by the 40 Point roster system read with the Andhra Pradesh model. The impugned gradation list has to be recast and redrawn in such manner.
The respondent nos. 34 and 35 have supported the petitioners. Learned Senior Advocate for the respondent nos. 34 and 35 has submitted that, the benefit of officiating at the Fast Track Courts (FTC) are not available to any of the parties for the purpose of counting seniority to the post of District Judge (Entry Level). Such issues were raised at the behest of some of the respondents in a writ petition being W.P. No. 22564 (W) of 2011 (Sri Samar Roy & Ors. v. The Hon'ble High Court at Calcutta & Ors.). Such writ petition has been disposed of by a judgment and order dated August 16, 2016. Such claim has not been accepted. There the High Court administration had taken a stand opposing the claim of seniority on the basis of officiation at FTC. The High Court administration cannot be allowed to take a contrary stand now. He has submitted that, the Rules of 2004 contemplate and implement a 40 Point roster system read with the Andhra Pradesh model for preparation of the gradation list and that the gradation list should be prepared accordingly.
Learned Senior Advocate for the High Court administration has submitted that, the roster system applies to the post and not to the vacancies. According to him, the total cadre strength is 203. In support of such contention, he has referred to the Schedule IV to the Rules of 2004. Schedule IV to the Rules of 2004 also excludes 119 FTC Judges from consideration. He has relied upon 1995 Volume 2 Supreme Court Cases page 745 (R.K. Sabharwal & Ors. v. State of Punjab & Ors.) as well as All India Judges' Association & Ors. (supra) in support of his contention with regard to the roster system. According to him, six orders of the High Court administration are relevant. Two of them are of September 17, 2009 and they deal with the normal and the jump promotees. The third is of September 23, 2009 which deals with 16 direct recruitees. The fourth is dated February 17, 2010 relating to normal promotees. The fifth is September 30, 2010 relating to the jump promotees and the last being December 6, 2010 relating to the direct recruitees. He has submitted that, the normal and the jump promotees being given appointment on the same date, that is, on September 17, 2009 and prior to the appointments of the direct recruitees, the normal promotees and the jump promotees would come first in the gradation list and then the direct recruitees would come. Therefore, according to him, the impugned gradation list is in order and no interference is called for. Moreover, the impugned gradation list is a draft gradation list. According to him, a writ petition challenging a draft gradation list is not maintainable as it is premature. The authorities are yet to take a final decision. The parties can ventilate their respective grievances before the Administration. No right of the petitioners stands infringed at this stage. In support of such contention he has relied upon 2003 Volume 3 Andhra Pradesh Law Times page 456 (B. Ananda Rama Rao & Ors. v. State of Andhra Pradesh & Ors.).
Learned Senior Advocate appearing for the High Court administration has submitted that, the issue of weightage being given for the period of officiation as officers of FTC has been considered in the earlier writ petition. In view of the judgment and order dated August 16, 2016 passed in such writ petition and the stand taken by the High Court administration therein, the question of giving weightage for the period of officiation as officers of FTC does not arise. He has submitted that, the High Court administration has not taken a stand contrary to the stand taken by the High Court administration in any of the proceedings including the earlier writ petition.
Relying upon 1996 Volume 2 Supreme Court Cases page 168 (Union of India v. S.S. Uppal & Ors.), 2006 Volume 2 Supreme Court Cases page 747 (State of Karnataka & Ors. v. C. Lalitha) and 2006 Volume 10 Supreme Court Cases page 346 (Uttaranchal Forest Rangers' Assn. (Direct Recruits) & Ors. v. State of U.P. & Ors.) learned Senior Advocate for the High Court administration has submitted that, the date of occurrence of a vacancy has no relevance for the purpose of fixation of seniority. The seniority has to be fixed in accordance with the service rules prevalent at that point of time. The seniority of the persons has been named, has to be fixed in accordance with the Rules of 2004. Relying upon 2003 Volume 8 Supreme Court Cases page 40 (V.K. Majotra v. Union of India & Ors.) he has submitted that, the Court should confine itself to the pleadings of the parties and not travel beyond the same. The Court need not consider a case not made out by the parties in the pleadings. He has submitted that, the present writ petition involves 4 issues which are required to be answered by the Court. He has indentified the issues raised in the proceedings in course of his submissions. He has also tabulated the same in the written notes of argument submitted subsequent to the conclusion of the hearing of the parties.
Learned Senior Advocate appearing for the respondent nos. 6 to 8, 10, 11, 14, 16, 23, 25, 27, 41, 47, 50, 52, 57, 63, 72 and 86 has submitted that, the impugned gradation list is correct. He has emphasized the meaning of the word "seniority" and a "berth" in a roster followed in service jurisprudence. He has referred to the various provisions of the Rules of 2004 and submitted that, some meaning should be attached to the user of different words in the three categories of appointment avenues provided in the Rules of 2004. He has contrasted the user of the words in Rule 31 of the Rules of 2004 for the purpose of determination of seniority. He has submitted that, since the Rules of 2004 require consideration for a period of officiation at a given post, the officers who had officiated as officers of FTC should be given due weightage. He has relied upon 1984 Volume 4 Supreme Court Cases page 450 (O.P. Singla & Anr. v. Union of India & Ors.), 2000 Volume 8 Supreme Court Cases page 25 (Rudra Kumar Sain & Ors. v. Union of India & Ors.), 2013 Volume 3 Supreme Court Cases page 658 (Debabrata Dash & Anr. v. Jatindra Prasad Das & Ors.) and 2012 Volume 6 Supreme Court Cases page 502 (Brij Mohan Lal v. Union of India & Ors.) in support his contentions. He has referred to the affidavit-in-opposition filed on behalf of his clients and submitted that, the drive for recruitment was for the period from September 13, 2004 till January 1, 2009. 65 officers were promoted against 67 vacancies. The promotion is to the West Bengal Judicial Service. Some of his clients having officiated as officers of FTC, such persons are entitled to their period of officiation at such post being counted for the purpose of seniority. He has submitted that, the contentions of the High Court administration that, the period of officiation as the officers of FTC has not been taken into consideration for the purpose of preparation of the draft gradation list is contrary to the specific decision of the Full Court. He has referred to the minutes of the Full Court appearing at page 92 and submitted that, the Full Court has referred to three decisions of the Hon'ble Supreme Court of India. He has relied upon 2016 Volume 11 Supreme Court Cases page 656 (V. Venkata Parsad & Ors. v. High Court of Andhra Pradesh & Ors.) in support of his contentions. According to him, the draft gradation list is upto December 31, 2008. The petitioners are appointees of 2009. He has referred to the last sentence at page 181 being the impugned letter circular which says that, the 2009 appointees will be looked at later. Consequently, no right of the petitioners stand infringed by the draft gradation list as the case of the petitioners who are appointees of 2009 would be looked after later by the High Court administration. The petitioners have failed to establish that, any of their legal rights have been violated. He has relied upon 1990 Volume 2 Supreme Court Cases page 715 (Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra & Ors.) in support of his contentions.
Learned Advocate appearing for the respondent no. 31 has submitted that, the impugned circular must be set aside. He has referred to the 2013 gradation list and the impugned gradation list and submitted that, the respondent no. 31 has been brought down from a higher position from 2013 to a lower position in the impugned draft gradation list without any reason. He has also pointed out that, the various other persons had faced the similar problems as that of the respondent no. 31. According to him, there is no logic in the impugned draft gradation list. He has referred to the Rules of 2004 and submitted that, a section of the persons appearing in the impugned draft gradation list is looking at super time pay scale.
Learned Advocate appearing for the respondent nos. 20, 71, 74, 78 and 80 has adopted the submissions made on behalf of the respondent nos. 6, 8 and others.
Respondent no. 81 has appeared in person. He has submitted that, the High Court administration ought to undertake an exercise of identifying the vacancies existing prior to the date of the Rules of 2004 coming into effect. After having identified such vacancies, the High Court administration should proceed to fill up such vacancies with the existing persons in terms of the Rules then prevailing. Once such an exercise is completed the High Court administration may proceed to fill up the vacancies of the District Judge (Entry Level) appearing on and from October 1, 2004 being the date when the Rules of 2004 had come into effect.
Few issues have arisen for consideration in the instant writ petition. Learned Senior Advocate for the High Court administration had suggested 4 issues for consideration. In my view the following issues have arisen for consideration in the present writ petition :-
(i) Is the writ petition not maintainable as being premature?
(ii) Does the 40 Point roster read with Andhra Pradesh model apply for the purpose of fixation of seniority inter se amongst the appointees to the post of District Judge (Entry Level)?
(iii) Is the seniority to be reckoned from the date of appointment/promotion or from the date of posting as a District Judge (Entry Level) under the Rules of 2004?
(iv) Is the draft gradation list circulated by the impugned letter circular in accordance with the Rules of 2004?
(v) To what reliefs, if any, are the parties entitled to?
On the first issue it has been contended that, the impugned letter circular merely deals with a draft gradation list and that the gradation list not having been finalized, no rights of the petitioners stands infringed. The petitioners if aggrieved by the draft gradation list, are to ventilate their grievances to the administration. As the administration has not taken a final decision on the gradation list, the petitioners do not have a cause of action to maintain a writ petition. No right of the petitioners can be said to be infringed by the draft gradation list as it is yet to be finalized. The petitioners may have a grievance, if at all, once the gradation list is finalized.
B. Ananda Rama Rao & Ors. (supra) has dealt with a number of writ petitions with regard to the method and manner to be followed in reckoning the seniority of Civil Assistant Surgeons of Andhra Pradesh Health, Medical and Family Welfare Department. A batch of writ petitions were filed challenging the order of the Administrative Tribunal. The writ petitions were entertained. The Government order under challenge as also the order of the Tribunal, were set aside. Directions for fixation of seniority were given. It has held that, ordinarily the Court should not interfere at the stage of a provisional seniority list. However, in the given facts and circumstances of that case, the Court had interfered. Therefore, the bar of interference at the stage of a provisional seniority list is not absolute. In a given facts and circumstances, the Court can and ought to interfere at the stage of a provisional seniority list. On the strength of B. Ananda Rama Rao & Ors. (supra) it cannot be said that, the present writ petition is not maintainable as being premature. The petitioners are aggrieved by the publication of draft gradation list in which the petitioners do not figure at all. The petitioners' contention that, the draft gradation list is not in accordance with the Rule of 2004 at all requires consideration. Issues with regard to interpretation of the Rule of 2004 have also been raised in this writ petition. There are claims for weightage for officiating as officer of Fast Track Courts. These issues require consideration. The writ petition, therefore, cannot said to be not maintainable or premature, in the facts of the present case. The first issue is answered by holding that, the writ petition is maintainable and not premature.
The Rules of 2004 have come into being following the directions given by the Supreme Court in paragraph 29 of All India Judges' Association & Ors. (supra) which is as follows:-
"29. Experience has shown that there has been a constant discontentment amongst the members of the Higher Judicial Service in regard to their seniority in service. For over three decades a large number of cases have been instituted in order to decide the relative seniority from the officers recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to Higher Judicial Service. The quota for promotion which we have prescribed is 50 per cent by following the principle "merit-cum-seniority", 25 per cent strictly on merit by limited departmental competitive examination and 25 per cent by direct recruitment. Experience has also shown that the least amount of litigation in the country, where quota system in recruitment exists, in so far as seniority is concerned, is where a roster system is followed. For example, there is, as per the Rules of the Central Government, a 40-point roster which has been prescribed which deals with the quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever, there has been a litigation amongst the members of the Service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited. When roster system is followed, there is no question of any dispute arising. The 40-point roster has been considered and approved by this Court in R. K. Sabharwal and Ors., v. State of Punjab. One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40 point roster works. We direct the High Courts to suitably amend and promulgate Seniority Rules on the basis of the roster principle as approved by this Court in R.K. Sabharwal 's case as early as possible. We hope that as a result thereof there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant Rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the Higher Judicial Service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by 31-3-2003."
(emphasis supplied) The Rules of 2004 had come into effect from October 1, 2004. The Rules of 2004 contemplate three avenues for the appointment to the cadre of District Judge (Entry Level). It appears from the records made available to Court that, the High Court administration had filled up the vacancies occurring in the post of District Judges upto September 30, 2004 being the date previous to the date of coming into effect of the Rules of 2004. This decision of the High Court administration appears from the resolution of the administrative committee dated July 10 and 11, 2006. Consequently no vacancies remain to be filled up for the period prior to the coming into effect of the Rules of 2004. Subsequent to the Rules of 2004 coming into effect on October 1, 2004, prescribed three avenues for appointment have to be employed for the purpose of appointment to the post of District Judge (Entry Level). The Rules of 2004 prescribe the quota for the three avenues for appointment. The quota is in terms of All India Judges' Association & Ors. (supra). From the records made available to Court, it appears that, the Administrative Committee of the High Court in its meeting held on December 6, 2010 had adopted the Andhra Pradesh model for maintenance of the 40 Point roster system for the purpose of determination of inter se seniority amongst the appointees of the District Judge (Entry Level) appointed pursuant to the Rules of 2004. The lay note placed for consideration before the Administrative Committee for its meeting held on December 6, 2010 notices few judgments of the Hon'ble Supreme Court. They are as follows:-
(i) 2002 Volume 4 Supreme Court Cases page 247 (All India Judges' Association & Ors. v. Union of India & Ors.)
(ii) 1995 Volume 2 Supreme Court Cases page 745 (R.K. Sabharwal & Ors. v. State of Punjab & Ors.)
(iii) All India Reporter 2002 Supreme Court page 2096 (Brij Mohanlal v. Union of India)
(iv) All India Reporter 2002 Supreme Court page 1181 (Maharashtra State Judicial Service Association & Ors.
v. High Court of Judicature at Bombay & Ors.)
(v) 2008 Volume 10 Supreme Court Cases page 271 (B.S. Mathur v. Union of India) The lay note had placed the Orissa High Court model and the Andhra Pradesh High Court model and a proposed roster prepared in terms of Orissa High Court model, for consideration of the Administrative Committee. The proposed roster in the lay note gave the first two vacancies to a normal promotee, the third vacancy to a jump promotee and the fourth position to the direct recruit. The proposed roster had followed the Orissa High Court model. The decision of the Administrative Committee in its meeting dated December 6, 2010 is as follows:-
Item No. 1
Matter How disposed of
To consider the proposed 40-Point Discussed.
Roster to be made application for Taking into consideration the decision
determining the inter se seniority of the Supreme Court rendered in the
between the promotee Judicial case of All India Judges' Association &
Officers and Direct Recruits from the Ors. vs. Union of India [Writ Petition
Members of the Bar in the cadre of (Civil) No. 1022 of 1989], it is decided to
District Judge (Entry Level) [in apply 40-Point Roster as adopted by the
conformity with the provision of the High Court of Andhra Pradesh for the
West Bengal Judicial (Conditions of purpose of fixation of seniority inter se
Service) Rules, 2004] amongst the Higher Judicial Service
Officers in the rank of District Judge
(Entry Level) in all the three categories,
viz., by way of direct recruitment from
Bar, by way of limited competitive
examination and through normal
promotion, prospectively with effect from
the year 2009.
The Administrative Committee had adopted the Andhra Pradesh model in preference over the Orissa model for the purpose of fixation of seniority. The Andhra Pradesh model grants the first position to a direct recruit, the second to a jump promotee, the third and the fourth to normal promotees, the fifth to a direct recruit, the sixth to a jump promotee and the seventh and eighth positions to the normal promotees. This system is followed till the 40th vacancy. The High Court administration in an affidavit filed before the Supreme Court in W.P. (C) No. 46 of 2007 (West Bengal Judicial Service Association v. Registrar General, High Court of Calcutta & Anr.) has stated that:-
"10. It is stated that presently the seniority has been determined as per 40 points roster as adopted in Andhra Pradesh and it has been decided to follow the said roster as per direction issued in the case of All India Judges' Association Vs. Union of India (Reported in (2002) 4 SCC 247)."
The stand of the High Court administration is that, the 40 Point Roster system read with Andhra Pradesh model applies for the purpose of fixation of seniority inter se amongst the appointees to the post of District Judge (Entry Level). This stand has not been substantiated by any of the parties to be incorrect. Rule 31 of the Rules of 2004 in its first proviso provides that the 40 point roster system would be followed for the purpose of determination of the inter se seniority. Therefore, the second issue is answered by holding that, the 40 Point Roster system read with the Andhra Pradesh model would apply for the purpose of fixation of seniority inter se amongst the appointees to the post of District Judge (Entry Level).
The Rules of 2004 prescribe the method of recruitment and the fixation of seniority. The relevant Rules are as follows:-
"24. Cadre.- (1) The Higher Judicial Officers in the rank of District Judges of the service as mentioned in Part II shall include the following posts forming the cadre, namely:-
(a) District Judge;
(b) District Judge in selection grade;
(c) District Judge in super time scale.
(2) The strength of the cadre of the service shall be such as specified in Schedule IV and the Government in consultation with the High Court may vary such strength of the cadre from time to time.
Provided that the number of posts as referred to in clause
(b) and clause (c) of sub-rule (1), shall be determined by the Government from time to time depending upon the total strength of the officers in the service."
"26. Method of recruitment:- (1) On or after the commencement of these rules, the appointment of the Higher Judicial Officers in the rank of District Judges in the post of District Judge as mentioned in clause (a) of sub-rule (1) of rule 24, shall be made-
(a) by direct recruitment from the Bar;
(b) by selection through promotion, on the basis of merit-
cum-seniority and on passing of a suitability test, from amongst such Judicial Officers other than District Judges as mentioned in clause (b) of sub-rule (1) of rule 6 of these rules;
(c) by promotion strictly on the basis of merit through limited competitive examination of such officers other than district Judges as mentioned in clause (b) of sub- rule(1) of rule 6 of these rules have not less than five years of qualifying service:
Provided that the number of vacancies to be filled up by direct recruitment as stated in clause (a) shall not be more than 25% of the total permanent strength and such recruitment shall as far as possible be made annually:
Provided further that the number of vacancies to be filled up by promotion as stated in clause (c) shall, subject to the provision of the third proviso, not be more than 25% of the total permanent strength and such recruitment shall as far as possible be made annually;
Provided also that where suitable persons are not available for appointment to the posts of the Judicial Officers in the rank of District Judges under this Part, the number of vacancies required to be filled up by direct recruitment as stated in clause (a) and by promotion as stated in clause (c), shall not be carried forward and such vacancies may be filled up-
(a) in respect of vacancies as required to be filled up by direct recruitment as stated in clause (a)
(i) firstly, from amongst the eligible Judicial Officers in the rank of District Judges as selected by the method as stated in clause ©;
(ii) secondly, from amongst the eligible Judicial Officers in the rank of District Judges selected by the method as stated in clause (b);
(b) in respect of vacancies required to be filled up by promotion on the basis of merit as stated in clause (c), from amongst the eligible Judicial Officers in the rank of District Judges selected by the method as stated in clause (b).
(2) the appointment of the Higher Judicial Officers in the rank of District Judges in the post of District Judge in selection grade and District Judge in super time scale, as referred to in clauses (b) and (c) of sub-rule (1) of rule 24, shall be made by the High Court by selection of the Higher Judicial Officers in the rank of District Judges of the service from posts as referred to in clause (a) and clause (b), respectively, of that rule and such appointment shall be made by selection on the basis of merit-
cum-seniority."
"28. Appointing authority.- (1) All appointments to the post as referred to in clause (a) of sub-rule (1) shall be made by the Governor in accordance with recommendations of the High Court.
(2) All selections to posts referred to in clause (a), clause (b) and clause (c) of sub-rule (1) of rule 24 shall be made by the High Court."
"31. Seniority.- (1) The seniority of the Higher Judicial Officers in the rank of District Judges appointed to the posts as referred to in clause (a), (b) and (c) of sub-rule (1) of rule 24 shall, unless reduced in rank on account of punishment, be determined in accordance with-
(a) the date of continuous officiation in case of officers promoted to the post as referred to in clause (a) of Sub- rule (1) of rule 24;
(b) the date of order of appointment in the case of direct recruit to the posts as referred to in clause (a) of sub- rule (1) of rule 24;
(c) the date of order of selection to posts as referred to in Clause (b) and (c) respectively of Sub-rule (1) of Rule 24 or such date, as may be specified by the High Court:
Provided that in the case of direct recruit or promote under clauses (a), (b) or (c), as the case may be, of sub- rule (1) of rule 26 to the post referred to in clause (a) of sub-rule (1) of rule 24, if the date of continuous officiation of the Higher Judicial Office in the rank of district judges promoted to such post and the date of joining/appointment of the direct recruit in the service be the same, the seniority inter se shall be fixed according to the 40 point roster as determined by the High Court from time to time:
Provided further that seniority inter se amongst the Higher Judicial Officers in the rank of District Judges promoted by an order of the same date or amongst direct recruits appointed by an order of the same date, shall follow the order in which their names have been recommended by the High Court.
Provided also that the relative seniority of the Judicial Officers of the West Bengal Higher Judicial Service appointed prior to coming into force of these rules and governed by the West Bengal Higher Judicial Service (Determination of Seniority) Rules, 1979, shall not be affected."
Rule 26 deals with the method of recruitment. It prescribes the quota for the three avenues of appointment to the post of District Judge (Entry Level). The three avenues are firstly by way of direct recruitment from the Bar, secondly through normal promotion on the basis of merit-
cum-seniority and on passing of a suitability test and thirdly by jump promotion on the basis of merit through limited competitive examination of such Judicial Officers other than District Judges. Rule 31 deals with seniority. Rule 31 prescribes that, the seniority of Higher Judicial Officers in the rank of District Judges appointed to the post as referred to in Clauses (a), (b) and (c) of Sub-rule (1) of Rule 24 shall be determined in accordance with (a) the date of continuous officiation in the case of officers promoted to the post as referred to in Clause (a) of Sub-rule (1) of Rule 24; (b) the date of order of appointment in the case of direct recruit to the posts as referred to in Clause (a) of Sub-rule (1) of Rule 24; (c) the date of order of selection to posts as referred to in Clause (b) and (c) respectively of Sub-rule (1) of Rule 24 or such date, as may be specified by the High Court. The first proviso to Rule 31 provides that, if the date of continuous officiation of the Higher Judicial Officer in the rank of District Judges promoted to such post and the date of jointing/appointment of the direct recruit in the service be the same, the seniority inter se shall be fixed according to the 40 Point Roster as determined by the High Court from time to time. As noted above, the High Court administration had decided to apply the Andhra Pradesh model in respect of the 40 Point roster system.
There is a divergence of views between the petitioners and the High Court administration as to the date from which the seniority is to be counted. According to the petitioners, all three avenues of appointment must result in an appointment to the post of District Judge (Entry Level) for the commencement of the date for the purpose of determination of seniority. According to the High Court administration, the date of appointment as a District Judge is sufficient rather than the date of actual posting as a District Judge for the purpose of determination of seniority.
Seniority is required to be counted from the date of birth in the cadre of District Judge (Entry Level). What is the date of birth of a person, in the cadre of District Judge (Entry Level), when appointed through the three different methods of appointment to such post, is a question which requires an answer in this petition. The question needs to be addressed in the context of the factual matrix of the instant case. Subsequent to the Rules of 2004 coming into effect on October 1, 2004, three methods of recruitment as prescribed under such Rules did not fructify till the recruitment in 2009. By a notification dated March 31, 2009, the High Court administration had declared 131 vacancies for the purpose of recruitment to the post of District Judge (Entry Level). The notification notes that, the recruitment would be in accordance with the directions given by the Hon'ble Supreme Court of India from time to time in Malik Mazhar Sultan's Case (Civil Appeal No. 1867 of 2006) and a Writ Petition No. 46 of 2007 filed by West Bengal Judicial Service Association. This notification was followed up by three notifications all of April 15, 2009. By the notification bearing No. 5952-RG dated April 15, 2009 the High Court administration had invited applications from the members of the West Bengal Judicial Service belonging to the cadre of Civil Judge (Senior Division) having not less than 5 years qualifying service for filling up some posts of Higher Judicial Service in the rank of District Judge by promotion strictly on the basis of merits through limited competitive examination. It had noted that, a panel would be prepared for filling up 55 vacant posts. It had noted that, the number may vary consequent upon the result of the pending litigation. By the notification bearing No. 5953-RG the High Court Administration had invited and fixed the examination schedule for the direct recruits. By the notification bearing No. 5954-RG dated April 15, 2009 issued by the High Court administration it had notified that, out of 131 vacancies in the cadre of District Judge (Entry Level) as declared on March 31, 2009, 26 posts would be filled up in 2009 against 50% of the cadre strength meant for promotion of the Judicial Officers in the cadre as mentioned in Rule 6(b) read with Rule 26(b) of the Rules of 2004. It had cautioned that, the exercise of promotion would be subject to the pending litigation. By a notification bearing No. 6745-RG dated May 15, 2009 the High Court Administration had invited applications from eligible candidates for normal promotion. It had noted that, the limited examination would be held as per the time schedule mentioned in Malik Mazhar Sultan (supra). By the notification bearing No. 9900- RG dated September 1, 2009 the High Court Administration had published the result of candidates for normal promotion. Two notifications dated September 17, 2009 were issued by the Judicial Department of the State of West Bengal. By the notification bearing No. 6537-J 26 officers were appointed in the cadre of District Judge (Entry Level) by way of normal promotion. By the notification bearing No. 6539-J 5 jump promotees were appointed in the cadre of District Judge (Entry Level). By a notification bearing No. 6617-J dated September 23, 2009 the Judicial Department of the State of West Bengal had notified the appointment of 16 persons from amongst the members of the Bar as District Judge (Entry Level). Having received the concurrence of the State Government to the appointment of District Judge (Entry Level) through the three avenues for the appointment to such post and in accordance with the quota prescribed, the High Court Administration had issued two notifications both dated October 28, 2009 bearing No. 8846A and 8847A. By the notification bearing No. 8846A the High Court Administration had promoted the normal promotees and the jump promotees to the cadre of District Judge (Entry Level) and posted them at the places mentioned against each of them. By the notification bearing No. 8847A the direct recruits were posted at the places mentioned.
Rule 31 of the Rules of 2004 dealing with seniority requires determination of seniority for all the three avenues of appointment to be made from the date of promotion to the post, date of selection to the post as District Judge (Entry Level) or the date of appointment to the post of District Judge (Entry Level) as the case may be. In the present case, the promotion, appointment and selection to the post of District Judge (Entry Level) had happened on October 28, 2009. In terms of the first proviso to Rule 31 of the Rules of 2004, the inter se seniority must be fixed in accordance with the 40 Point Roster system as determined by the High Court. The High Court had determined the 40 Point Roster system read with the Andhra Pradesh model as discussed above. The impugned letter circular containing the draft gradation list is not in accordance with the 40 Point Roster system read with the Andhra Pradesh model.
S.S. Uppal & Ors. (supra), Uttaranchal Forest Rangers' Assn. (Direct Recruits) & Ors. (supra) and C. Lalitha (supra) have held that, the seniority has to be determined by the Rules in force on the date of appointment. The fixation of seniority follows the appointment to the service. The date of occurrence of a vacancy has no relevance for the purpose of fixation the seniority. Ajit Kumar Rath (supra) has held that seniority cannot be claimed from the date of the vacancy. An appointment to the post does not relate back to the date of occurrence of the vacancy.
The appointing authority under the Rules of 2004 is the Governor acting on the recommendation of the High Court. The selections to the post are, however, to be made by the High Court. In the facts of the present case, the selections to the post were made by the High Court on October 28, 2009 for all the three streams of appointment.
The date of birth in the cadre of District Judge (Entry Level) can be deduced from another angle. The Rules of 2004 had come into vogue pursuant to the directions issued in All India Judges' Association & Ors. (supra). The three avenues of appointment were put into place subsequent to the Rules of 2004 consequent upon the directions issued in 2008 Volume 17 Supreme Court Cases page (Malik Mazhar Sultan (3) v. Uttar Pradesh Public Service Commission & Ors.). Malik Mazhar Sultan (3) (supra) had issued the following directions for filling up the vacancies in the cadre of District Judge:-
"7. For filling up of vacancies in the cadre of District Judge, accepting the proposal to which none has objected, except in the manner hereinafter noticed, we direct as under:
A. For Filling up of vacancies in the cadre of District Judge in respect of
(a) twenty-five per cent vacancies to be filled by direct recruitment from the Bar; and
(b) Twenty-five percent by promotion through limited competitive examination of Civil Judges (Senior Division) not having less than five years of qualifying service.
____________________________________________________________ Sl. No. Description Date ___________________________________________________________________________
1. Number of Vacancies to be notified by 31st March 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 arise due to elevation to the High Court, death or otherwise, say ten per cent of the number of posts.
(d) Vacancies arising due to deputation of judicial officers to other departments may be considered as temporary vacancy.
2. Advertisement inviting applications from 15th April eligible candidates.
3. Last date for receipt of application 30th April
4. Publication of list of eligible applicants. 15th May List may be put on the website.
5. Dispatch/Issue of admit cards to the eligible 16th May applicants. to 15th June
6. Written examination. 30th June Written examination may be
(a) Objective questions with multiple choice which can be scrutinised by the computer; and
(b) Subjective/narrative.
7. Declaration of result of written examination 16th August
(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.
8. Viva Voce. 1st to 7th September
9. Declaration of final select list and communication to the appointing authority 15th September
(a) Result may be put on the website and also published in the news paper.
(b) Select list be published in order of merit list and should be double the number of vacancies notified.
(c) Select list shall be valid till the next select list is published.
10. Issue of appointment latter by the 30th September competent authority for all existing vacant posts on date.
11. Last date for joining. 31st October B. For Filling up of vacancies in the cadre of District Judge in respect of fifty per cent vacancies to be filled by promotion ____________________________________________________________ Sl. No. Description Date ___________________________________________________________________________
1. Number of Vacancies to be notified by 31st March 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 arise due to elevation to the High Court, death or otherwise, say ten per cent of the number of posts.
2. Publication of list of eligible officers 15th May
(a) The list may put on website.
(b) Zone of consideration should be 1:3 of the number of vacancies.
3. Receipt of judgments from the eligible officers. 30th May
4. Viva Voce 15th to 31st July Criteria
(a) ACR for last five years;
(b) evaluation of judgments furnished; and
(c) performance in the oral interview.
5. Declaration of final select list and 31st August communication to the appointing authority.
(a) Result may be put on website and also published in news paper.
(b) Select list be published in order of merit and should be double the number of vacancies notified.
6. Issue of appointment letter by the competent 30th September authority for all existing vacant posts as on date.
7. Last date for jointing. 31st October C. For Filling up of vacancies in the cadre of Civil Judge (Senior Division) to be filled by promotion ____________________________________________________________ Sl. No. Description Date ___________________________________________________________________________
1. Number of Vacancies to be notified by 31st March 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 arise due to elevation to the High Court, death or otherwise, say ten per cent of the number of posts.
2. Publication of list of eligible officers 15th May
(a) The list may put on website.
(b) Zone of consideration should be 1:3 of the number of vacancies.
3. Receipt of judgments from the eligible officers 30th May
4. Viva Voce 1st to 16th August Criteria
(a) ACR for last five years;
(b) evaluation of judgments furnished; and
(c) performance in the oral interview.
5. Declaration of final select list and 15th September communication to the appointing authority.
(a) Result may be put on website and also published in news paper.
(b) Select list be published in order of merit and should be double the number of vacancies notified.
6. Issue of appointment letter by the competent 30th September authority for all existing vacant posts as on date.
7. Last date for jointing. 31st October D. For appointment to the posts of Civil Judge (Junior Division) by direct recruitment ____________________________________________________________ Sl. No. Description Date ___________________________________________________________________________
1. Number of Vacancies to be notified by 15th January the High Court.
Vacancies to be calculated including
(d) Existing vacancies.
(e) Future vacancies that may arise within one year due to retirement.
(f) Future vacancies that may arise due to elevation to the High Court, 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. Dispatch/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 scrutinised by computer.
7. Declaration of result of written examination 15th June
(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.
8. Final written examination 15th July
9. Declaration of result of final written examination 30th August
(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 to the appointing authority.
(a) Result may be put on website and also published in news paper.
(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 competent 1st December authority for all existing vacant posts as on date.
13. Last date for jointing. 2nd January of the following year"
The directions issued in Malik Mazhar Sultan (3) (supra) stipulates that, in respect of direct recruits and jump promotees the date of issuance of the letter of appointment would be September 30th of each year and that, the issuance of letter of appointment for normal promotion would also be of the same date. In All India Judges' Association & Ors. (supra) it has been observed that, ".........if ever, there has been a litigation amongst the members of the service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited.
When roster system is followed, there is no question of any dispute arising." Reading the directions of All India Judges' Association & Ors. (supra) and Malik Mazhar Sultan (3) (supra) together one can safely infer that, all the three avenues of appointments would culminate into an appointment or a promotion or a selection, as the case may be, to the post of District Judge (Entry Level) on one single day and that, the inter se seniority amongst such persons would be determined in terms of the 40 Point Roster system as may be adopted by a High Court. Our High Court has adopted the 40 Point Roster system read with Andhra Pradesh model. Consequently, the date of October 28, 2009 is taken for the purpose of consideration of the inter se seniority amongst the three avenues of appointment, in the facts of the present case. Even if the appointment, promotion or selection does not culminate on a single day, then also, in view of the direction quoted from All India Judges' Association & Ors. (supra), the recruitment being annual and happening on the basis of a quota, the roster system is to be followed, in determining inter se seniority, irrespective of the actual date of appointment, promotion or selection.
V.K. Majotra (supra) has held that, it is improper to consider questions which have not been raised in the writ petition. In the present case, on appreciation of the pleadings and the respective submissions, the issues raised in the writ petition and as suggested on behalf of the High Court Administration have been settled and noted in this order. One of the issues raised in this petition requires the court to decide the law relating to determination of the inter se seniority. It cannot be said that that, the Court has travelled beyond the pleadings or the issues raised in deciding such issue.
A large section of the respondents have traced their rights to a preferential treatment in the gradation list as officers of FTC. Reliance has been placed on O.P. Singla & Anr. (supra), Rudra Kumar Sain & Ors. (supra), Debabrata Dash & Anr. (supra) and Brij Mohan Lal (supra). This issue of rights emanating from an officiation as officers of FTC was raised in W.P. No. 22564(w) of 2011 and negated by the judgment and order dated August 16, 2016, passed therein. An appeal is pending against such judgment and order. The Rules of 2004 governs the seniority amongst the members of the cadre of District Judge (Entry Level). Officers of FTC are not considered as a post within the cadre of District Judge (Entry Level). The Rules of 2004 do not permit services rendered in ex-cadre post to be taken into consideration for the purpose of fixation of seniority. Consequently, such persons cannot claim seniority on the basis of officiation at the FTC. The decisions relied upon by such respondents have no manner of application in the facts of the present case.
Direct Recruit Class II Engineering Officers' Association (supra) has held that, where appointment has been made in accordance with the rules, seniority is to be counted from the date of such appointment and not from the date of confirmation. It has also held that, where initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
The learned Advocate appearing for the respondent nos. 20, 71, 74, 78 and 80 had adopted the submissions made on behalf of the respondent nos. 6 and others. However, in the written notes on argument, the respondent nos. 20 and four others have submitted various materials which were not discussed in the Court during the course of hearing. Therefore, the materials made available in the written submissions are not discussed. Similarly, respondent no. 81 appearing in person had contended in the manner as noted in this judgment and order. However, in the written notes of argument, the respondent no. 81 had included materials which were not discussed at the time of hearing by the respondent no. 81. The materials made available to the Court through the written notes on argument of the respondent no. 81 are, therefore, not dealt with.
In view of the discussions above, the third issue is answered by holding that, in the facts of the present case, the seniority is to be reckoned from the date of appointment to the post of a District Judge (Entry Level) being October 28, 2009. The fourth issue is answered by holding that, the draft gradation list circulated by the impugned letter circular is not in accordance with the Rules of 2004.
So far as the fifth issue is concerned, the seniority amongst the three avenues of appointment to the post not having been done in accordance with the Rules of 2004, the impugned letter circular is required to be set aside. The impugned letter circular is hereby set aside. The High Court administration is at liberty to prepare the gradation list, for all the appointees of 2009 to the post of District Judge (Entry Level) by taking the date of their appointment to such post as at October 28, 2009, in terms of the Rules of 2004 read with the Andhra Pradesh Model. Needless to say, the appointees of 2010 would come after the appointees of 2009 in the gradation list.
W.P. No. 8027(W) of 2017 is disposed of accordingly. Urgent certified website copies of this judgment, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.] Later:-
Learned Senior Advocate appearing for Respondent No.6 and his other clients seek stay of the judgment and order. Such prayer is considered and refused.
[DEBANGSU BASAK, J.]