Calcutta High Court (Appellete Side)
Appellate Side vs Moumita Sen & Others on 19 April, 2016
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Tapash Mookherjee
MAT 1560 of 2015
With
CAN 10110 of 2015
The Registrar (Judicial Service), High Court,
Appellate Side, Calcutta
... Appellant
vs.
Moumita Sen & Others
... Respondents
AND
CAN 1920 of 2016 [Addition of Party]
AND
FMA 3602 of 2015
With
CAN 2067 of 2016 & CAN 580 of 2016
Moumita Sen & Others
... Appellants
Vs.
Public Service Commission, West Bengal & Others
... Respondents
For the Appellant in MAT 1560 of 2015
& for the Respondent No.4 in FMA 3602 of 2015
: Mr. Joydeep Kar
Mr. Siddhartha Banerjee
For the Respondent Nos.1-4 in MAT 1560 of 2015
& for the Appellants in FMA 3602 of 2015
: Mr. Bidyut Kiran Mukherjee
Mr. Ujjal Kumar Bhattacharya
Mr. Jayanta Kumar Datta
Mr. Gangaprasad Mukherjee
For the Public Service Commission (in both the petitions)
: Mr. Pradip Kuma Roy
Ms. Sharaboni Sarkar
Mr. Joydeep Roy
For the Respondent No.8 in MAT 1560 of 2015
& for the Respondent No.5 in FMA 3602 of 2015
: Mr. Anjan Bhatacharya
For the State/Respondents (in both the petitions)
: Ms. Chaitali Bhattacharya
Mrs. Sukla Das Chanda
For the Applicants in CAN 1920 of 2016
: Mr. Anindya Lahiri
Mr. Puspal Chakraborty
Heard on : 07.03.2016, 08.03.2016,
09.03.2016 & 11.03.2016
Judgment on : 19.04.2016
Nishita Mhatre, J.:
1. In the year 2008 the Supreme Court laid down the time schedule to be adhered to for filling up vacancies which arose in Sub-ordinate Courts and District Courts in the case of Malik Mazhar Sultan (3) & Anr vs. Uttar Pradesh Public Service Commission & Ors reported in (2008) 17 SCC 703. The Supreme Court directed that the vacancies should be calculated including (a) existing vacancies, (b) future vacancies that may arise within one year due to the retirements of judicial officers, and (c) future vacancies that may arise due to promotion, death or otherwise. Ten per cent of the unforeseen vacancies were directed to in respect of the sanctioned posts and not vacancies. Appointment letters were directed to be issued for all vacancies as on 1st December of the year. While laying down the time schedule and the methodology to be adopted by every High Court for filling in the vacancies in the subordinate judiciary, the Supreme Court reiterated that the appointments must be made in consonance with Judicial Service Rules of every State.
2. Several High Courts moved applications before the Supreme Court submitting that the direction that 10 per cent of the anticipated vacancies should be in respect of sanctioned post and not vacancies occurred in a particular year based in Malik Mazhar's case (supra) was difficult to comply. It was contended that there would be expectation on the part of such candidates to get appointments which would create unwanted litigation by the candidates. Therefore, it was prayed that existing vacancies alone be notified along with anticipated vacancies that may arise in the next year. In supersession of the order passed on 4th January, 2008 in the aforesaid judgment, the Supreme Court in Malik Mazhar Sultan & Anr vs. Uttar Pradesh Public Service Commission & Ors reported in (2009) 17 SCC 24 decided on 24th March, 2009 directed that in future the High Courts/PSCs should notify the existing number of vacancies plus the anticipated vacancies for the next one year and some candidates should also be included in the waitlist.
3. The recruitment to the West Bengal Judicial Service for the year 2014 was undertaken for the post of Civil Judge (Junior Division) by issuing an advertisement on 1st March, 2014. Thirty nine existing vacancies and 24 anticipated or future vacancies were advertised. These anticipated vacancies were required to be considered in accordance with the directions of the Supreme Court in Malik Mazhar Sultan's case (supra).
4. The West Bengal Judicial Service Examination was held in 2014 as per the schedule delineated in the aforesaid judgment. In September, 2014, fourteen officers holding the post of Civil Judge (Junior Division) were recommended for promotion to the post of Civil Judge (Senior Division). Accordingly they were promoted on 15th October 2014. One Civil Judge (Junior Division) was permitted to retire voluntarily on 26th September 2014. Thus there were 15 additional clear vacancies for the year 2014 and consequently the anticipated vacancies for the year reduced. Appointment letters were expected to be issued for all vacant posts existing on 1st December 2014 as per the aforesaid judgement of the Supreme Court.
5. The select list was published on 24th December, 2014 containing the names of 117 candidates including those of the respondents. The West Bengal Public Service Commission (for short "PSC") by its communication dated 29th December 2014 recommended the names of 38 candidates from this select list for being appointed against 38 clear vacancies; a recommendation for one vacancy could not be made as there was no suitable candidate from the physically handicapped category. Out of these 38 clear vacancies there were 25 unreserved vacancies, 4 from the Scheduled Castes category, 2 from the Scheduled Tribes category, 4 from the OBC (A) category and 3 from the OBC (B) category. The names of 24 candidates were recommended from the select list for filling in the anticipated vacancies. Although 25 vacancies had been advertised no suitable candidate from the physically handicapped reserved category was available. Accordingly the Public Service Commission recommended 17 vacancies from the unreserved category, 2 from the Scheduled Castes, 1 from the Scheduled Tribes, 2 from the OBC (A) and 2 from the OBC(B) category for filling up the 24 anticipated vacancies.
6. Respondents in MAT No.1560 of 2015 were directed to appear before the Judicial Department of the State Government for verification of their original certificates and testimonials. They were also directed to appear for a medical test on 6th April 2015.
7. As mentioned earlier only such clear vacancies as were available by 1st December 2014 were required to be filled in as per Malik Mazhar Sultan (supra).The Judicial Department, Government of West Bengal therefore requested the PSC to re-allot the qualified candidates for 52 vacancies: 38 vacancies advertised plus 14 vacancies which had been advertised as anticipated vacancies and which had crystallised into clear vacancies. Accordingly the names of 52 candidates in the order of merit from the select list of 117 candidates were recommended for appointment by the PSC in consonance with the 100 point roster. These 52 candidates were allotted after revising the roster which was communicated by the Public Service Commission to the Judicial Department by a letter dated 5th May, 2015. These 52 vacancies were made up of 35 vacancies for the unreserved category, 5 vacancies for Scheduled Castes candidates, 3 vacancies for the candidates from the Scheduled Tribes, 5 for the OBC (A) and 4 for the OBC (B) category. The Public Service Commission thus recommended the names of 52 such candidates in the order of merit. The respondents 1 to 4 in MAT 1560 of 2015 who are unreserved candidates were not included as they were far below in the merit list and could not be accommodated in view of the roster. They were informed by a communication dated 11th May 2015 that they were not entitled to be appointed.
8. Being aggrieved by the fact that they had not been appointed, some unsuccessful candidates filed a writ petition in this Court. Principally the challenge in the writ petition was against the failure to issue appointment orders in favour of the respondents although they had cleared the judicial services examination, were recommended by the Public Service Commission and had been found medically fit.
9. The High Court administration opposed the writ petition and contended that the recruitment had been made strictly in conformity with the guidelines issued by the Supreme Court in Malik Mazhar Sultan's case (supra). It was pointed out that though the advertisement had specified that there were 25 anticipated or future vacancies, all these vacancies had not fructified into clear vacancies in the year 2014. Fourteen Judicial Officers in the rank of Civil Judge (Junior Division) / Judicial Magistrate were promoted to the post of Civil Judge (Senior Division). As a result, only 14 vacancies fructified out of 25 anticipated vacancies. One of the Judicial Officers posted as Civil Judge (Junior Division), Additional Court at Suri, Birbhum, had submitted her resignation on the ground of ill-health. Consequently one more post became vacant for recruitment of Judicial Officers to the post of Civil Judge (Junior Division). Thus, in all 15 anticipated vacancies fructified into clear vacancies. Accordingly, by a communication dated 13th March, 2015, the High Court informed the Government about these 15 vacancies. The unsuccessful candidates were at a much lower rank in the select list and therefore, were not issued appointment orders. Furthermore, the recruitment was actuated on the basis of the 100-Point-Roster, according to the High Court Administration.
10. The learned Single Judge by the impugned order dated 29th July, 2015 allowed the writ petition. The Court observed that when the names of the petitioners in the writ petition had been recommended, they could not be brushed aside. The Court also noted that 10 anticipated vacancies did not fructify into confirmed vacancies due to the promotions not being accorded to the Civil Judges (Junior Division) in time. The learned Single Judge was of the view that there was no justifiable reason for the High Court administration to carry forward such vacancies. The Court concluded that there was no known concept of carrying forward "non-fructified" anticipated vacancies in respect of one particular year to the following year. The learned Single Judge observed that if anticipated vacancies did not fructify during the course of one year "solely due to the inability on part of the High Court administration to complete all promotions within time", candidates who were eligible to secure employment based on their performance in the Judicial Service Examination could not be denied of their valuable right to secure such appointment. A direction was issued to the High Court administration to treat the petitioners along with other eligible candidates as wait-listed against 10 anticipated vacancies which would arise on account of promotions which were due.
11. Aggrieved by the direction of the learned Single Judge in the impugned judgment the High Court has preferred the appeal MAT 1560 of 2015. The respondents in this appeal who were the petitioners before the learned Single Judge have filed FMA 3602 of 2015 because they were aggrieved by some of the observations of the learned Single Judge in the impugned order. They have therefore sought a direction against the State to issue letters of appointment in their favour for the post of Civil Judge (Junior Division)/Judicial Magistrate, 1st Class in the category of West Bengal Judicial Service. They have also sought a declaration that the appointment of Respondent No.6 Abdul Hoque is illegal. A consequential injunction order has also been prayed for by the appellants in FMA 3602 of 2015. CAN 1920 of 2016 has been filed in MAT 1560 of 2015, i.e., the appeal filed by the High Court. This application has been filed contending that the applicants were necessary parties before the learned Single Judge and that their rights would be affected by any order passed by the Appeal Court. The applicants had filed W.P. No.27293(W) of 2015 on 16th October, 2015 after the judgment of the learned Single Judge in this case. They essentially prayed for the same reliefs as were sought by the petitioners in W.P. No.11319(W) of 2015 who are the respondents in MAT 1560 of 2015. On 23rd November, 2015 this writ petition has also been allowed by the learned Single Judge in terms of the judgment and order dated 29th July, 2015 in W.P. No.11319(W) of 2015. No appeal has been preferred by the High Court from this judgment and order of the learned Single Judge and therefore the present application has been filed contending that the applicants should be heard as they would be vitally affected by any order passed in the present appeals.
12. For the sake of convenience the appellants in FMA 3602 of 2015, i.e., the writ petitioners in W.P. 11319(W) of 2015 will be termed as respondents hereinafter and the applicants in CAN 1920 of 2016 will be termed as applicants.
13. Mr. Joydeep Kar, the learned Counsel for the High Court, argued that the learned Single Judge has erred in equating anticipated vacancies with confirmed vacancies. He submitted that the select list existed till 16th December, 2015 as stipulated in Malik Mazhar Sultan's case (supra). Fifteen anticipated vacancies fructified on 29th September, 2015 and were filled in by candidates from the 2014 select list. The learned Counsel submitted that the directions issued by the learned Single Judge in the impugned judgement go beyond the ambit of Malik Mazhar Sultan's case (supra). He further submitted that the scope of judicial review in such matters of recruitment is limited and no unsuccessful candidate can question the procedure of selection. The learned Counsel has further submitted that the learned Single Judge failed to appreciate the term "anticipated vacancies". The learned Counsel submitted that it was not open for the Court to decide that there were more than 15 anticipated vacancies which could be filled in when only 15 had fructified into confirmed vacancies. The learned Counsel then pointed out that although when the advertisement was published on 1st March, 2014, there were 25 anticipated vacancies, only 15 vacancies matured into confirmed vacancies. Furthermore, Mr. Kar criticised the finding of the learned single judge that there was a deliberate act on the part of the High Court administration to deny the respondents' appointment by promoting the Civil Judge (Junior Division) to the post of Civil Judge (Senior Division), late. He pointed out that it takes some time for vacancies which had occurred in the post of District Judge to percolate through to the lowest rung in the judicial service. Therefore, although some District Judges had retired, unless persons from the feeder post were promoted to fill in such posts, the vacancies would not be available to be filled in for the post of Civil Judge (Junior Division). Mr. Kar pointed out that on 13th March, 2015, the High Court had informed the appointing authority, i.e., the State that only 54 clear vacancies were available on 1st December, 2014 against the vacancies initially reported in the advertisement. In short, according to the learned Counsel the impugned judgement is against the well settled cannons of service jurisprudence.
14. The learned Counsel Mr. Bidyut Kiran Mukherjee for the unsuccessful candidates, i.e., the respondents herein submitted that the respondents had challenged the decision making process in the writ petition as it had left them bereft of appointment orders. According to him, the declaration of vacancies made in the advertisement could not be altered and since the number of vacancies mentioned in the advertisement was 64, the respondents should certainly have been appointed as Civil Judges (Junior Division). He then submitted that the vacancy position cannot be changed midstream inasmuch as although 64 vacancies announced in the advertisement were inclusive of 39 clear vacancies and 25 anticipated or future vacancies, 10 anticipated vacancies had not been filled in thereby altering the vacancy position. According to him once the Public Service Commission had recommended the appointment of a person the High Court was bound to act on it by appointing the person. He submitted that the respondents had been deprived of their appointment orders only because the number of vacancies had been altered. The learned Counsel argued that the High Court administration had illegally clubbed two lists, i.e., one for the confirmed vacancies and the other for anticipated vacancies thereby changing the roster position. He then submitted that a communication was sent by the Secretary, Judicial Department, Government of West Bengal, on 5th May, 2015 indicating the manner in which the reservations for 52 posts were to be made. According to him this communication assessed the reserved candidates and was contrary to the judgments of this Court (S. Banerjee, J). The learned Counsel then submitted that when the respondents had been included in the select list of 117 candidates, it was necessary to comply with the rules of natural justice before delisting their names. It was further argued by the learned Counsel that the list of 5th May, 2015 was bad in law. The learned Counsel then contended that the Chief Justice does not have the power to alter the number of vacancies. He drew our attention to the information received under the Right to Information Act indicating that the number of vacancies was much more than the number filled in by the appellants. By relying on certain judgments, the learned Counsel submitted that the High Court administration had violated the true spirit of the judgment in the case of Malik Mazhar Sultan's case (supra) and had deliberately caused prejudice to the respondents.
15. Mr. Anindya Lahiri, the learned Counsel appearing for some of the candidates, i.e., the applicants, supported the argument of Mr. Bidyut Kiran Mukherjee, learned Counsel for the respondents herein, and added that the select list existed till 16th December, 2015 and the anticipated vacancies had fructified on 29th September, 2015. Therefore, according to him, the vacancies ought to have been filled in. He contended that the vacancies which did not fructify in the year 2014 although they were anticipated and advertised for the year 2014, must be filled in with the candidates from the 2014 select list even if these vacancies were confirmed in the year 2015. He submitted that instead of filling in the vacancies which arose by candidates who were in the select list of 2014, i.e., 10 anticipated vacancies had been carried forward to the year 2015 which was not permissible in law.
16. We have given our anxious consideration to the issues raised before us. There is no dispute that as per the advertisement there were 39 confirmed vacancies in the year 2014. Twenty five anticipated vacancies were advertised for that year. These future vacancies were those which could occur on account of death, promotion, resignation, retirement of the judicial officers or otherwise. Fifteen anticipated vacancies matured into confirmed vacancies because of promotions. Thus for the year 2014 there were altogether 54 clear vacancies. However, 10 of the anticipated or future vacancies which were advertised did not crystallise in the year 2014. Therefore, these 10 vacancies were not available to the administration for filling them with candidates who had passed the 2014 examination. The future vacancies which are predicted to be confirmed in a particular year can be filled in only by successful candidates of that year. However if all the anticipated vacancies are not transformed into clear vacancies in a particular year those anticipated vacancies would be available for being reckoned for the next year. If such anticipated vacancies of one year become clear vacancies in the subsequent year they will naturally have to be advertised as clear vacancies in the next year. Such vacancies which were anticipated in the previous year and become confirmed or clear in the subsequent year cannot be filled in by the candidates in the select list of the previous year. Therefore the 10 anticipated vacancies of 2014 which matured into confirmed and clear vacancies in 2015 could not have been filled in by candidates in the select list of 2014. These vacancies would naturally be advertised in 2015 as clear vacancies.
17. The contention that because the 10 future vacancies of the year 2014 fructified in the year 2015, the roster point would change is wholly unsustainable. The roster point is calculated separately for the anticipated vacancies. Thus, after the 15 anticipated vacancies fructified into clear vacancies, they were added to the existing 39 vacancies and were filled in according to the roster. The question of the roster changing because of the anticipated vacancies had not been reckoned is also without merit.
18. The number of vacancies to be informed by the High Court to the State Government for the year 2015 would include the 10 vacancies which had not matured in the year 2014 although they had been advertised in that year. We are unable to accept the contention that by doing so, the High Court had carried forward vacancies from one year to the other. What was anticipated in 2014 became confirmed only in the year 2015. Had all the anticipated or future vacancies of 2014 been available for filling up the posts by meritorious candidates in the year 2014 itself then the select list of 2014 would have to be applied for filling up such posts. The letter of 5th May, 2015 which was issued by the Public Service Commission to the Secretary, Judicial Department, Government of West Bengal takes into account that these 15 vacancies which were anticipated in 2014 had been confirmed in that very year and therefore, the number of vacancies which could be filled in was 54. The 10 vacancies which had not matured in the year 2014 were naturally not considered for being filled in that year. We do not see any reason for the criticism of the learned Single Judge with respect to the manner in which the vacancies were filled in. The observation of the learned Single Judge that there was a total obliteration of 10 anticipated vacancies in the year 2014 is not correct. Since those vacancies did not fructify into clear ones in the year 2014, the question of obliterating them does not arise. These vacancies matured only in the year 2015. Therefore, they could be counted as confirmed vacancies for that year.
19. In the case of State of Orissa & Anr vs. Rajkishore Nanda & Ors reported in (2010) 6 SCC 777 the Supreme Court reiterated its earlier view in the case of Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47 that appearance of the name of a candidate in the select list does not give a right of appointment. The candidate who is not appointed though his name is on the select list cannot claim that he has been subjected to hostile discrimination. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment, at the best, is a condition of eligibility for the purpose of appointment and no vested right of appointment is created. The Court observed that the select list cannot be treated as a reservoir for the purpose of appointments. The select list for all categories of Judicial Officers is valid till the next select list is published as observed in Malik Mazhar Sultan's case (supra). Therefore, in our opinion, the High Court has not erred in filling up the vacancies.
20. The submission of Mr. Bidyut Kiran Mukherjee is that the High Court administration and the State had acted clearly in violation of the judgment and order of the Division Bench in the case of Manabendra Nath Ghosh vs. The Hon'ble High Court at Calcutta & Ors reported in 2012 (2) CLJ (Cal) 65. This submission is, in our opinion, untenable. In Manabendra Nath Ghosh's case (supra), the successful candidates who were named in the select list were issued appointment orders but were not posted despite there being vacancies. Instead the vacancies were carried forward to the next year and filled. It is in these circumstances that the Division Bench ruled that posting orders should be issued in favour of the candidates. This judgment was challenged before the Supreme Court by the High Court administration by filing SLP (Civil) No.27234 of 2011. Ultimately, the appeal/petition was disposed of by the Supreme Court after a statement was made by the High Court administration that the candidates would be appointed by creating supernumerary posts. This judgment, in our opinion, therefore has no application to the present case. The appointment orders have not been issued in favour of the respondents or the applicants because their names were not sufficiently high in the merit list for filling in the 52 vacancies. It is well-settled that merely because a candidate finds himself named in the select list or has undergone the medical test, it does not give him an indefeasible right of being appointed to the post.
21. Reliance was also placed by Mr. Mukherjee on the judgment of the Supreme Court in Renu & Ors vs. District and Sessions Judge, Tis Hazari Courts, Delhi & Anr reported in (2014) 14 SCC 50. This judgment was pressed to service by the learned Counsel in support of his submission that the High Court and the State had acted in violation of Articles 14 and 16 of the Constitution of India. He submitted that the principles to be adopted in matters of public appointments which had been formulated in by the Supreme Court in M.P. State Cooperative Bank Ltd., Bhopal vs. Nanuram Yadav & Ors reported in (2007) 8 SCC 264 had been given a go bye in order to accommodate one Abdul Hoque. He further submitted that Abdul Hoque gained a "back door appointment de hors the rules". Therefore it was necessary to cancel his appointment. He then submitted that although the Hon'ble Chief Justice of the High Court is vested with the powers of appointment of the staff of the High Court or indeed the Judicial Officers of the subordinate judiciary, such appointments cannot be in contravention of Articles 14 and 16 of the Constitution. The Chief Justice does not have an unfettered power which may be exercised in an arbitrary manner. He further submitted by relying on the judgment in Renu's case (supra) that the Chief Justice does not have the power to alter the number of vacancies advertised and the entire issue must be placed before the Full Court.
22. The learned Counsel then submitted that after records were produced by the High Court before the learned Single Judge, it was evident that the High Court administration had altered the number of vacancies in order to accommodate Abdul Hoque.
23. According to him, the list was manipulated to give Abdul Hoque, one of the private respondents in the writ petition, an appointment order. He submitted that although the private respondent belongs to a reserved category, he was included as a successful candidate. This was done by considering the person who stood first in the merit list as a general category candidate, thereby making one reserved vacancy available and depriving a person from the general category of an appointment. To counter this argument, Mr. Kar relied on Samta Aandolan Samity & Anr vs. Union of India & Ors reported in (2014) 14 SCC 745 where the Supreme Court after considering the judgment of the Constitution Bench of the Supreme Court in the case of Indra Sawhaney vs. Union of India reported in 1992 Supp (3) SCC 217 held that persons belonging to the reserved category who are selected in the open competition on the basis of their own merit, have a right to be included in the general list/unreserved category and not to be counted against the quota reserved for Scheduled Caste. Thus, while calculating the limit of 50 per cent reservation, candidates belonging to reserved categories who have found their place on the basis of their merit competing with general candidates are not to be taken into consideration.
24. There can be no quarrel with the judgment in Renu's case (supra) and we are bound by the same. The Supreme Court in Renu's case (supra) has requested all High Court to re-examine the statutory rules dealing with appointment of staff in the High Court as well as in the sub-ordinate Courts. The judgment was delivered in a case where appointment was sought by Class IV employees in the Courts subordinate to the Delhi High Court. The Supreme Court expressed its basic concern with regard to the appointments in judicial institutions which should be made on the touchstone of equality of opportunity enshrined in Article 14 read with Article 16 of the Constitution of India.
25. In the present case we are concerned with Judges to be appointed to Courts subordinate to the High Court of Calcutta. These appointments are to be made inconsonance with the Judicial service Rules and the judgment in Malik Mazhar Sultan (3) & Anr vs. Uttar Pradesh Public Service Commission & Ors reported in (2008) 17 SCC 703. The criticism of the learned Counsel Mr. Mukherjee of the High Court in the matter of recruitment to the post of Civil Judge (Junior Division) is, in our opinion, unfounded. We do not find that the Hon'ble Chief Justice or the High Court administration has acted in an arbitrary, capricious or whimsical manner as suggested by the learned Counsel. We are also not convinced with the argument that the list of selected candidates was manipulated in order to accommodate Abdul Hoque. Abdul Hoque belonged to the reserved category. He was placed in the Serial No. 93 of the select list of 117 candidates which was declared by the Public Service Commission. In the modified list which was issued on 8th May, 2015, Abdul Hoque was at Serial No.48 and belongs to the OBC(A) category. The submission of the learned Counsel Mr. Mukherjee was that the roster point has been changed after the anticipated vacancies which had crystalized were added to the list of confirmed vacancies. This submission is also unsustainable. Although the respondents and the applicants figured in the select list in view of the vacancies available for the roster point, it was not possible to accommodate them. The submission that the communication dated 5th May, 2015 had upset the earlier roster point is also not tenable. In the earlier communication, 25 unreserved posts were available out of 38 clear vacancies whereas after the 52 clear vacancies were considered 35 unreserved vacancies became available for being filled in with candidates from the select list of the West Bengal Judicial Service Examination held in the year 2014. The respondents who all belong to the unreserved category were far below in the select list at Nos. 36, 38, 44 and 87. Similarly the applicants in CAN 1920 of 2016 are at serial Nos. 41, 42 and 101 in the same select list of 117 candidates. They can have no grievance that the vacancies in the unreserved category were reduced by the subsequent recasting of the vacancies. They were unable to cross the line and secure appointments because they fail short of the merit required. As mentioned earlier we do not find that the High Court has acted arbitrarily in appointing those whose names figured in the panel of 52 candidates. In view of the decision in Samta Aandolan Samiti & Anr vs. Union of India & Ors reported in (2014) 14 SCC 745 the candidate from the reserved category who secures high marks is entitled to a seat in the general category and the seat vacated by such a candidate would be available for a candidate from the reserved category, next in the merit list.
26. MAT 1560 of 2015 is allowed. The judgment and order impugned in the appeal is quashed and set aside. F.M.A. 3602 of 2015 is dismissed and C.A.N. 1920 of 2016 is also dismissed. All other applications CAN 10110 of 2015, CAN 2067of 2016 and CAN 580 of 2016 are dismissed as infructuous.
27. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.
(Tapash Mookherjee, J.) (Nishita Mhatre, J.) Later
Mr. Ujjal Kumar Bhattacharya, the learned Counsel appearing for the respondent, seeks a stay of our judgment.
We do not find it necessary to stay our decision for the reasons mentioned in the judgment.
Accordingly the stay is refused.
(Tapash Mookherjee, J.) (Nishita Mhatre, J.)