Calcutta High Court (Appellete Side)
Sri Ankur Bhattacharya & Anr vs State Of West Bengal & Ors on 13 January, 2021
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WPA No. 8462 of 2020
Sri Ankur Bhattacharya & Anr.
Vs.
State of West Bengal & Ors.
For the writ petitioner :- Mr. Partha Sarathi Bhattacharya,
Sr. Adv.
Mr. Uday Narayan Betal, Adv.
Mr. Raju Bhattacharyya, Adv.
For the respondent no. 1 :- Mr. Subrata Guha Biswas, Adv.
For the respondent nos. 3-4 :- Mr. Pantu Deb Roy, AGP.
Mr. Pannalal Bandhopadhyya, Adv.
Hearing concluded on :- 06.01.2021
Judgment on :- 13.01.2021
Amrita Sinha, J.:-
The petitioners pray for giving appointment to them in the vacant
posts of Peshkar (Bench Clerk) in the Fast Track Courts in the Hooghly
Judgeship.
In response to the employment notification no. 1/2015 dated 30th
April, 2015 the petitioners applied for being recruited in the post of
Peshkar (Bench Clerk) in the Fast Track Court of the Hooghly
Judgeship. Initially the advertisement was made in respect of two
sanctioned posts, but later on, by way of a corrigendum, the sanctioned
posts were enhanced to three. The employment was to be given on ad
hoc basis, temporary and contractual in nature.
The petitioners participated in the recruitment process and were
eligible for appointment. The name of the petitioners appeared in the list
of selected candidates. It was notified on 22nd September, 2015 that the
selected candidates will be intimated by post and/or by telephonic
message to receive the appointment letters in person from the office of
the District Judge, English Department, Hooghly.
In spite of being selected for appointment no appointment letter
was issued in their favour. The petitioners made an application under
the Right to Information Act, 2005 seeking reasons for non-issuance of
the letter of appointment. The query of the petitioners was replied by the
Public Information Officer, thereby intimating, that the office of the
District Judge, Hooghly has sought approval of the Appointment
Committee of the Cabinet, vide office memo dated 21st September, 2015,
but the matter was pending before the Judicial Department,
Government of West Bengal and no direction from the Judicial
Department, Government of West Bengal has been received till date. The
petitioners thereafter made a representation on 10th September, 2020
followed by a notice demanding justice through their learned advocate
on 21st September, 2020.
According to the petitioners as they were successful in the
selection process necessary direction may be passed upon the recruiting
authority for issuance of appointment letter in their favour.
Referring to the report which has been filed by the respondents
the petitioners submit that the District Judge is the appropriate
authority to issue the letter of appointment in their favour. Reference
has been made to the communication dated 23rd December, 2019
written by the Joint Secretary, Judicial Department to the District
Judge, Hooghly that the matter of engagement of support staff in respect
of the Fast Track Courts are guided by the Circular no. 6716-J dated
14th September, 2001 issued by the Judicial Department and the
relevant District Judge is the authority for such engagement, subject to
the observation of the norms as envisaged therein.
The petitioners also refer to the letter dated 15th January, 2020
issued by the District Judge, Hooghly to the Joint Secretary, Judicial
Department seeking approval of the appointment of the selected
candidates in various posts.
In reply to the stand taken by the respondents in their affidavit-in-
opposition that the panel prepared on 22nd September, 2015 has lost its
validity and the petitioners do not have any locus standi to claim
appointment as the post in question is purely ad hoc, temporary and
contractual, the petitioners submit that the respondent authorities are
not entitled to improve or supplement their case by assigning fresh
reasons by way of affidavit. Reliance has been placed on the decision
delivered by the Hon'ble Supreme Court in the matter of Mohinder
Singh Gill -vs- Chief Election Commissioner & Ors. reported in AIR
1978 SC 851.
The learned advocate appearing on behalf of the respondents
refers to the memo no. 7196/F(P) dated 2nd July, 2010 issued by the
Principal Secretary, Finance Department, Audit Branch relating to the
instructions regarding preparation, cancellation, appointment out of
panels for filling up of the non-PSC posts, wherein it has been
mentioned that the selection process is initiated for a particular number
of vacancies against particular posts. A panel should not remain valid
for more than a year. The panel will automatically stand cancelled when
all the notified vacant posts are filled up from the panel within the one
year validity period of the panel.
It has been contended that the panel prepared in the year 2015
cannot, under any circumstances, remain valid till 2021. It has been
submitted that no appointment has been given from the said panel as
the panel was not approved by the authority. It has been argued that
the petitioners do not have a right of appointment even though their
names appeared in the panel of selected candidates. Empanelment per
se does not create any right in favour of the petitioners. The respondents
pray for dismissal of the writ petition.
I have heard the submissions made on behalf of both the parties.
The policy relating to recruitment and fixation of pay of the staff of
Fast Track Courts was published by the Secretary, Judicial Department
by a Government Order dated 14th September, 2001. In the said
Government Order it has been clearly mentioned that the supporting
staff of Fast Track Courts will be recruited by the District and Sessions
Judge of each district from the persons who retired from service, subject
to the condition that they are physically fit and mentally alert.
In continuation of the aforesaid Government Order a further
Government Order was published on 27th November, 2001 wherein
certain guidelines have been prescribed regarding recruitment and
fixation of pay of the supporting staff of the Fast Track Courts. It has
been mentioned that in the event of non-availability of retired personnel,
a lower division clerk may be appointed, on contract basis, in place of
Peshkar, since direct recruitment to the upper division level clerical post
is not permitted under the existing recruitment policy. Both the
Government Orders have been issued with the concurrence of the
Finance Department.
In response to the letter of the District Judge seeking approval of
appointment of the selected candidates, the Judicial Department has
clearly mentioned that the engagement of the support staff in respect of
the Fast Track Courts will be guided by the Government Orders dated
14th September, 2001 and 27th November, 2001.
From the employment notification published by the office of the
District Judge, Hooghly on 30th April, 2015 it appears that applications
have been invited from general public including retired government
employees for filling up the post of Peshkar.
The petitioners being unemployed youth participated in the
recruitment process and were successful in the same.
Without delving into the matter any further, at the face of the
employment notification it appears that the same is an absolute illegal
and arbitrary one. The policy regarding recruitment of staff in the Fast
Track Courts does not permit unemployed youths to participate in the
recruitment process of Peshkar. The recruitment is to be made from the
persons who retired from service, and in the event of unavailability of
retired persons, a lower division clerk may be appointed on contract
basis. The guidelines specifically mention that direct recruitment of the
upper division level clerical post is not permissible under existing
recruitment policy. There is no provision for appointing a fresh
candidate, by way of direct recruitment, in the post of Peshkar. In fact,
there is a clear restriction to directly appoint any person in the upper
division level clerical post, and in view of the aforesaid restriction
application from general public could not have been invited by the
District Judge for giving appointment in the post of Peshkar.
The parties have not been able to produce before the Court any
document to show that there has been any relaxation in the aforesaid
directives. Nothing has been shown before the Court that unemployed
youth or the general public are eligible for appointment directly, in the
post of Peshkar in the Fast Track Courts. The department has reiterated
their stand that the appointment is to be guided by the aforesaid two
Government Orders.
The initiation of the recruitment process not being made in
accordance with the guidelines framed by the government, no direction
can be passed for either proceeding or concluding the same. The
petitioners could not have acquired any right, far less an indefeasible
right, for being appointed in a recruitment process which was void ab
initio. The employment notification no. 1/2015 dated 30th April, 2015
issued by the District Judge, Hooghly is ex facie bad and not
sustainable in law.
In view of the above no relief can be granted to the petitioners in
the instant case. The writ petition fails and is hereby dismissed.
WPA No. 8462 of 2020 is dismissed.
No costs.
Urgent certified photocopy of this judgment, if applied for, be
supplied to the parties or their advocate(s) on record expeditiously, on
compliance of usual legal formalities.
(Amrita Sinha, J.)
