Calcutta High Court (Appellete Side)
Sayan Rakshit And Others vs Public Service Commission on 14 June, 2016
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 Serial No.160(M/L) June 14, 2016 SD/SG WP 4469(W) of 2016 Sayan Rakshit and others
-versus-
Public Service Commission, West Bengal and others.
Mr. Sardar Amjad Ali Ms Sucharita Roy Mr Masum Ali Sardar ...for the petitioners.
Mr Jaydip Kar Mr Siddhartha Banerjee ...for the High Court Administration.
Mr Pradip Kumar Roy Ms Shrabani Sarkar Mr Debasish Karmakar Mr Joydeep Roy ...for the Public Service Commission.
Mr Sadhan Roychowdhury Mr Manas Kumar Sadhu ..for the State.
This matter pertains to the recruitment of the judicial officers at the entry level by the West Bengal Judicial Service Examination, 2015.
By an advertisement published on or about April 16, 2015, applications were invited for two clear vacancies and 44 anticipated vacancies. The clear vacancies were reserved against physically challenged candidates. Of the 44 anticipated vacancies, 30 were 2 unreserved: four were for scheduled castes; two for scheduled tribes; four for OBC -A; three for OBC - B and one for an orthopaedically handicapped candidate. Apart from the qualification and age limits indicated in the advertisement, a further condition stipulated therein was that no candidate other than the candidates belonging to the scheduled castes, scheduled tribes and backward castes of West Bengal would be allowed to appear in the examination more than thrice. The advertisement indicated that on-line submission of applications would commence on April 20, 2015 and close on May 11, 2015. The last date for submission of fees was May 30, 2015.
These nine petitioners participated in the selection process and their names figured in the list of candidates recommenced for appointment by the Public Service Commission of the State on December 16, 2015. The list contained the names of 44 candidates, since there were no applicants for the two clear vacancies reserved for physically challenged persons.
The grievance of the petitioners is that the list was arbitrarily revised by the Public Service Commission and the subsequent list of February 10, 2016 excluded the names of these nine petitioners.
When this petition was received on March 14, 2016, the petitioners were eager in not only seeking to point out the perceived anomalies in the system, but the petitioners referred to a kind of conspiracy to exclude deserving candidates from appointment to the post. An order was passed on March 14, 2016 expressing a prima facie view that there may not have been any anomaly upon the 44 anticipated vacancies not maturing into clear vacancies 3 during the course of the calendar year and only 34 of the 44 anticipated vacancies opening up for appointment. The order observed that when the break-up of the number of seats available to the various categories was indicated in the advertisement published on or about April 16, 2015, it was expected that the 44 anticipated vacancies would open up to clear vacancies. However, once the 44 anticipated vacancies did not all open up for appointment and only 34 clear vacancies from the 44 arose during the calendar year, the inter se allotment on the basis of the reservation policy required the adjustment.
For reasons which do not require repetition, the order dated March 14, 2016 found that the appropriate 34 persons had been short-listed for selection in the recommendation by the PSC in the list dated February 10, 2016. It is of significance that such aspect of the matter has not been emphasised or even urged at the final hearing as to the perceived anomaly of who among the 44 short- listed would make the cut for the 34 posts. The submission at the final hearing challenges the process by referring to the affidavit filed by the High Court. The petitioners maintain that the entire process of recruitment conducted in the year 2015 was illegal and the manner of selection is described as 'shady' and not transparent.
According to the petitioners, the official website of the High Court revealed that there were 71 vacancies in the post of Civil Judge (Junior Division) in course of the year 2015. If the recruitment conducted in the previous calendar year was taken into consideration, the number of vacancies, according to the petitioners, would be least 53. The petitioners point out that only 34 persons were recruited in 2015, though the information 4 furnished by the High Court following a query under the Right to Information Act, 2005 revealed that there were 36 vacancies which had arisen in the year 2015. The petitioners suggest that if all the 53 vacancies, as per the High Court website, were to be filled up, all these petitioners and more could have been accommodated. The petitioners say that even if the scaled-down figure of 36 as indicated in the response of the High Court to the RTI query were to be filled up, two of the nine petitioners would gain employment.
There appears to be little scope to pass any order in favour of the petitioners in view of a recent judgment of a Division Bench rendered in MAT 1560 of 2015 [The Registrar (Judicial Service), High Court v Moumita Sen] on April 19, 2016. In similar circumstances as in the present petition, certain candidates who had participated in the 2014 recruitment process questioned the pruning down of the anticipated vacancies to a reduced figure of actual vacancies. The writ petition succeeded. The order of July 29, 2015 was carried in appeal. The Division Bench observed, while setting aside the impugned order dated July 29, 2015, inter alia, as follows at paragraph 16 of the judgment:
"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 5 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."
The issue addressed in the passage extracted above in the Division Bench judgment precludes any discussion on the primary aspect of the matter that has been emphasised on by the petitioners at the final hearing. Apart from the petitioners describing the recruitment process as 'shady' and in breach of the directions issued by the Supreme Court in the judgment reported at (2008) 17 SCC 703 (Malik Mazhar Sultan (3) v Uttar Pradesh Public Service Commission), the High Court has also been accused of distorting the expression used by Supreme Court. It is submitted that the distinction between 'clear' and 'anticipated' vacancies sought to be made by the High Court is vague and unclear and the expression 'anticipated' was not used in Malik Mazhar (3).
Paragraph 7(D) of the Malik Mazhar (3) judgment is placed to refer to the expression 'future vacancies'. The Supreme Court contemplated that the number of vacancies would be declared by the High Court and notified by January 15 of each year and the calculation of vacancies would include existing vacancies, future vacancies that may arise in the year due to retirement and future 6 vacancies that may arise due to promotion, death or otherwise. It is, however, submitted on behalf of the High Court that in a subsequent order in the Malik Mazhar matter reported at (2009) 17 SCC 24, the expression 'anticipated vacancies' has been used by the Supreme Court and the previous order in Malik Mazhar (3) has been modified to such extent.
In the recruitment process of 2015, the advertisement of April 16, 2015 had sought applications to fill up two posts that were already vacant and the posts that were expected to fall vacant in course of the calendar year. The anticipated number of vacancies was indicated to be 44, but as it transpired only 34 vacancies opened up in course of the calendar year. Thus, there were 36 candidates to be selected in all. Such position was corroborated by the response to the RTI query of one of the petitioners herein. The manner in which the 34 posts have been filled up is evident from the chart recommended by the PSC on February 10, 2016. The appointments proposed to be given, if not already made, to the 34 persons in accordance with the PSC chart of February 10, 2016 appears to be in order. There is nothing that had been shown by the petitioners to detract from the prima facie view taken on March 14, 2016 as to the validity of such second list of February 10, 2016. The reference to the High Court website indicating 71 or 53 vacancies in 2015 is only in the affidavit-in-reply and not in the petition.
The petitioners' assertion that the recruitment process was illegal, cannot help the petitioners' cause. Upon the petitioners having participated in the process, it is not open to the petitioners to question the process or challenge its legality and, in the same breath, insist on the petitioners' appointments.
7The petitioners also refer to paragraphs 16 and 17 of the appellate judgment in Moumita Sen where the Division Bench dwelt on the 10 vacancies of the year 2014 which had not matured in that calendar year and which had to be regarded as vacancies that opened up in the year 2015. The petitioners submit that since it has been accepted in the Division Bench order that 10 of the vacancies that ought to have arisen in 2014 actually arose in 2015, the advertisement published on April 16, 2015 ought to have shown these 10 clear vacancies available.
The error on the part of the petitioners appears to be in their assumption that the 10 vacancies that ought to have arisen in 2014 arose at the end of that year or on the first day of 2015. The vacancies that arise at an entry-level post are upon either the occupants of such post being promoted or such occupants resigning or dying. In this case, the promotion process that was due to have been completed in 2014 was delayed and was ultimately completed in 2015. The 10 vacancies that ought to have arisen in 2014 but matured in 2015 were included as part of the 34 vacancies that opened up out of the 44 anticipated vacancies in the year 2015. The 10 vacancies referred to in the Division Bench order opened up only in or about October, 2015.
The further point that 36 persons ought to have recruited in 2015 for the 36 vacancies that had arisen in that year is partly right, but the process cannot be criticised for the same. As observed earlier, the two clear vacancies that were advertised on April 16, 2015 were for physically challenged candidates. There were no applicants in the relevant category and, as such, the two reserved posts for physically challenged candidates could not be filled up from the applications received in 2015 and, by law, the posts had to be left 8 vacant for an attempt to be made in the subsequent year to fill them up from the same reserved category of candidates.
The entire issue appears to be borne out of the confusion pertaining to certain posts or the vacancies being carried over from one year to another. The vacancies which arise in a calendar year cannot be carried over to another year unless the posts are reserved and the law requires the vacancies to such reserved post to be carried over to explore the possibility of affording candidates in the category a further chance in the subsequent year.
The matter has been needlessly complicated by the petitioners in their treating anticipated vacancies as firm vacancies. The order in Malik Mazhar (3), as noticed above, contemplated vacancies to be calculated under three heads. The second of the heads covered retirement. However, it is extremely unusual for any person to retire from the entry-level post of Civil Judge (Junior Division). Again, the third head covered by "promotions, death or otherwise" provided for an unusually high figure of ten per cent of the number of posts. In the subsequent order in Malik Mazhar in 2009, paragraph 2 thereof noticed the submission that once candidates' names are included in the panel, there "may be an expectation for such candidates to get appointment and this creates unwanted litigation by the candidates ..." It was in such circumstances that the order in Malik Mazhar (3) was modified to the extent that "in future High Courts/PSCs shall notify the existing number of vacancies plus the anticipated vacancies for the next one year and some candidates also be included in the wait list."
The word "anticipated" implies expected or there being a likelihood thereof. The idea of notifying the clear and anticipated 9 vacancies is to ensure that all the posts that open up are filled up; but it does not follow that even if the number of posts that are anticipated to open up do not actually open up, all the candidates covered by the number of anticipated vacancies have a right to an appointment or even any legitimate expectation thereto. To suggest that the entirety of the number of candidates who are short-listed on the basis of the number of anticipated vacancies have a right to be appointed is absurd as it would require the life of the panel to be extended till the posts are filled up, irrespective of whether in a subsequent year or several years down the line.
The matter may be viewed with the help of an illustration. If the strength of the cadre at the entry-level post is 40 and all 40 candidates are eligible to be considered for promotion in a particular year, the anticipated vacancies would be 40. If, however, ten of the candidates are found unfit for promotion in that year and again five of such ten found unfit for promotion in the subsequent year, it cannot be said that the panel of 40 would continue till all the vacancies actually arise and are filled up.
It is, thus, that anticipated vacancies have always to be regarded as fluid and subject to the actual number of vacancies that open up during a year. For all practical purposes, the anticipated vacancies may every time be in excess of the vacancies that actually open up; so as to ensure that if some vacancy opens up on account of a contingency that could not be reasonably foreseen, the post does not remain vacant. But the corollary would not hold good: all the applicants short-listed to meet the number of anticipated vacancies would have no right to claim an appointment if the anticipated vacancies do not translate to actual vacancies by the end of the calendar year. The matter required no further deliberation after the 10 Division Bench judgment in Moumita Sen; but since these petitioners only seek to flog a dead horse, this, somewhat unnecessary, discussion has been indulged in.
There is no merit in the petitioners' grievance. In any event, irrespective of the merits of the matter, the petitioners should not be looking for any appointment in a system which the petitioners find to be 'shady' and not transparent.
WP 4469 (W) of 2016 is dismissed with costs.
Certified website copies of this order, if applied for, be urgently made available to the parties upon compliance with the requisite formalities.
(Sanjib Banerjee, J.)