Kanailal Chakraborty vs The State Of West Bengal & Ors
2022 Latest Caselaw 804 Cal

                     IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                               APPELLATE SIDE



                            W.P.A. 25149 Of 2014



                            Kanailal Chakraborty

                                    Versus

                      The State of West Bengal & Ors.




For the Petitioner      : Mr. Ayan Banerjee, Adv.
                         Ms. Debasree Dhamali, Adv.


For the Respondent

No. 2 to 4              : Mr. Saptanshu Basu, Ld. Sr. Adv.
                         Mr. Arindam Banerjee, Adv.


Heard On                : 09.02.2021 & 14.02.2022



Judgment On             : 24.02.2022




Saugata Bhattacharyya, J.:

1. In the present writ petition petitioner has prayed for sanctioning benefit

of Super Time Scale of Pay upon quashing memo no. 218-A dated 16 th

January, 2013 as well as memo dated 28th February, 2014 being no. 990-A

issued by the Registrar (Judicial Service), High Court, Calcutta whereby

petitioner was intimated that his prayer for grant of Super Time Scale of Pay

was spurned. The legality of these two decisions as contained in memo dated

16th January, 2013 and 28th February, 2014 is in question in the present writ

petition qua entitlement of the petitioner to get the benefit of Super Time Scale

of Pay which according to him he is entitled to.

2. Petitioner was a judicial officer who manned the post of Munsif, Judicial

Magistrate, Metropolitan Magistrate, Assistant District Judge, Sub-Divisional

Judicial Magistrate and thereafter he was promoted to the West Bengal Higher

Judicial Service in 1997. On his promotion as member of the higher judicial

service he functioned as Registrar of West Bengal Land Reforms and Tenancy

Tribunal also as District and Session Judge, Balurghat and lastly prior to his

superannuation on 31st October, 2007 he was discharging his function as

Judge, City Civil Court at Calcutta.

3. Mr. Ayan Banerjee, learned advocate representing the petitioner has

submitted that the petitioner was accorded benefit of Selection Grade vide

notification dated 29th July, 2006 issued by the Registrar (Judicial Service),

High Court, Calcutta w.e.f. 30th May, 2002. It is the case of the petitioner that

he completed three years' continuous service in the Selection Grade scale from

30th May, 2002. His case was considered for awarding the benefit of Super time

Scale of Pay by the concerned respondent authorities but such benefit was not

awarded to him as it is reflected from notification dated 12 th September, 2006

issued by the Registrar (Judicial Service), High Court, Calcutta. Vide said

notification dated 12th September, 2006 benefit of Super Time Scale of Pay

though was granted to some of the judicial officers but he was not found

eligible.

4. That by further notification dated 19 th December, 2008 issued under

memo no. 6100-A again eleven judicial officers were found fit to receive benefit

of Super Time Scale of Pay when according to the petitioner he was incorrectly

left out from the zone of consideration though fact remains the petitioner ought

to have been considered for grant of such benefit by the respondent authorities

prior to issuance of said notification dated 19 th December, 2008.

5. Such refusal to accord benefit of Super Time Scale of Pay to the

petitioner was the reason for preferring representations by him first on 20 th

July, 2009 and subsequently on 23rd November, 2010. Thereafter, in

consideration of such representations Registrar (Judicial Service), vide memo

dated 16th January, 2013 intimated the petitioner that the Hon'ble Court

refused the prayer of the petitioner to sanction the benefit as sought for.

6. On being intimated such refusal to grant benefit led the petitioner to

prefer another representation dated 10 th June, 2013 whereby it was contended

that junior officers who have retired before the notification dated 19 th

December, 2008 were sanctioned Super Time Scale of Pay whereas the

petitioner who is eligible in terms of the relevant rules was not considered for

granting such benefit. Subsequently, again petitioner was intimated vide memo

no. 990-A dated 28th February, 2014 that on consideration of the case of the

petitioner it was rejected by the Hon'ble Court.

7. Thereafter, the petitioner made an application under the Right to

Information Act dated 7th May, 2014 which was answered by the Deputy

Registrar (Administration) & Public Information Officer, Hon'ble High Court,

Calcutta vide letter dated 6th June, 2014 which is at page 54 and 55 of the writ

petition. On perusal of such letter dated 6 th June, 2014 it appears that the

petitioner was not found entitled for grant of Super Time Scale of Pay. It was

also informed to the petitioner selection for grant of such benefit was merit-

cum-seniority and other eligible criteria were also intimated in response to

query no. 2 which is quoted below:

"2............................................ (1) He has been granted the benefit of Selection Grade. (2) He is included within 10% of the post of Higher Judicial Officer in the rank of District Judge. (3) He has to be in not less than 3 years of continuous service in the Selection Grade Post.

(4) He should not have been graded "E" during the last 3 years and should not have been graded "D" more than once during the said period of 3 years.

(5) No Departmental or Criminal proceedings is pending against him on charges of misconduct, moral turpitude, lack of integrity and dereliction of Duty. (6) He has not been punished by the Disciplinary Authority on any of the grounds mentioned above or by any criminal court in respect of any penal and/or criminal offence. "

8. In addition thereto vide said letter dated 6th June, 2014 it was also

intimated to the petitioner though he was considered in the meeting held on

29th August, 2006 of the Hon'ble Administrative Committee of the Hon'ble High

Court but it was found that the petitioner could not fulfill the eligibility criteria

which resulted in refusal to sanction the said benefit.

9. The learned advocate representing the petitioner upon placing reliance

on this letter dated 6th June, 2014 has submitted that it appears from the said

letter that the reason behind refusal to sanction benefit of Super Time Scale of

Pay was failure on the part of the petitioner to fulfill the eligibility criteria as

stipulated in the said letter against query no. 2. According to the petitioner he

fulfilled the eligibility criteria at the time of taking decision by the Hon'ble

Administrative Committee of the Hon'ble High Court pursuant to which the

notification dated 19th December, 2008 was issued still he was not sanctioned

such benefit.

10. Another limb of submission of the petitioner is that he is entitled to

receive Super Time Scale of Pay in terms of Rule 15 of the West Bengal Judicial

Service (Revision of Pay and Allowance) Rules, 2003 (hereinafter referred to as

"Rules of 2003") which provides for 10% of the posts of Higher Judicial Officers

in the rank of District Judge ought to put in not less than three years of

continuous service in the Selection Grade post shall be allowed Super Time

Scale of Pay. According to the petitioner since he was promoted to Selection

Grade post w.e.f. 30th May, 2002 which makes him entitled to come within the

zone of consideration at the time of issuing notification on 19 th December, 2008

along with other eligible judicial officers.

11. It has further been submitted on behalf of the petitioner that prior to

issuing notification dated 12th September, 2006 for grant of Super Time Scale

of Pay by the Hon'ble High Court ACR of 2003, 2004 and 2005 were considered

and petitioner was found to have been awarded Grade "D" in 2003 and 2004

which made him not entitled to receive the benefit but before issuing

notification dated 19th December, 2008 ACR of 2005, 2006 and 2007 were

considered when petitioner was graded "C"(Good) for the year 2005, "B"(Very

Good) for the year 2006 and again "C"(Good) for the year 2007 which made him

entitled to receive the benefit of Super Time Scale of Pay.

12. In addition thereto it is also a specific submission on behalf of the

petitioner that there is no rule or departmental notification which prevents the

petitioner from being considered for the second time before issuing notification

dated 19th December, 2008 since he was considered once before issuance of

notification dated 12th September, 2006.

13. It has been contended on behalf of the petitioner that one Sri. Sukumar

Chakraborty who is similarly circumstanced like the petitioner was considered

for the second time for grant of Super Time Scale of Pay and accordingly

granted such benefit albeit the case was considered and rejected vide

notification dated 23rd February, 2006 which is at page 16 of the Affidavit-in-

Reply of the petitioner. Vide said notification dated 23 rd February, 2006 officers

junior to said Sukumar Chakraborty were granted such benefit. Thereafter on

second occasion Sukumar Chakraborty was found fit to be conferred the

benefit of Super Time Scale of Pay vide notification dated 12 th September, 2006

which negates the contention of the respondent authorities that once the case

of a candidate for grant of Super Time Scale of Pay is refused subsequently

such benefit cannot be extended to that candidate on considering the eligibility

of the said candidate in following meeting.

14. Per contra appearing on behalf of respondent nos. 2, 3 and 4 Mr.

Saptanshu Basu, learned senior advocate submits that Rule 15 of the Rules of

2003 is an enabling provision under which eligible candidates can be

considered for grant of Super Time Scale of Pay on fulfillment of certain

conditions as contained in said Rule 15 but such consideration will be on the

basis of merit-cum-seniority. In other words it is submitted petitioner does not

possess right of conferment of benefit rather has the right of consideration on

fulfillment of eligibility criteria.

15. According to the learned advocate representing the respondent

authorities the eligibility criteria has been fixed in terms of said Rule 15 as well

as those which were communicated to the petitioner vide letter dated 6 th June,

2014 against query no. 2 in response to the RTI application of the petitioner.

On applying such conditions relating to the eligibility of the candidates since

petitioner was found to have been graded "D" twice in the year 2003 and 2004

he was not found fit for granting such benefit therefore by issuing notification

dated 12th September, 2006 petitioner was refused such benefit.

16. It has been argued on behalf of the respondent authorities that vide

notification dated 12th September, 2006 petitioner was not conferred such

benefit subsequently there is no scope left open to the respondents to grant

such benefit by next notification dated 19 th December 2008 since refusal of

granting such benefit vide notification dated 12 th September, 2006 resulted in

granting such benefit to next eligible officer.

17. In answering the point raised by the petitioner with regard to granting

benefit of Super Time Scale of Pay to one Sukumar Chakraborty vide

notification dated 12th September, 2006 while his case was considered for the

second time after he was not allowed the benefit by the resolution of the

Administrative Committee dated 22 nd December, 2005, it has been submitted

since the Administrative Committee meeting held on 29 th August, 2006 was not

provided with the decision of the earlier Administrative Committee dated 22 nd

December, 2005 the Administrative Committee proceeded as if the case of said

Sukumar Chakraborty was not considered earlier and rejected. Therefore,

according the respondent authorities the benefit of Super Time Scale of Pay

was sanctioned in favour of Sukumar Chakraborty on wrong appreciation of

facts.

18. This Court has posed query to Mr. Basu, learned senior advocate

representing the respondents that whether any rule or notification debars any

candidate from being considered for the second time for sanction of Super Time

Scale of Pay but the Court does not get any satisfactory answer save and

except the submission made on behalf of the respondents that once a judicial

officer on consideration of his eligibility is refused to receive the benefit of

Super Time Scale next eligible junior officer is generally sanctioned such

benefit sealing the fate of senior candidate for being further considered for such

benefit but it has been submitted by Mr. Basu very candidly that there is no

provision in the Rules of 2003 or in any other notification issued by the

respondent authorities which puts an embargo in considering the eligible

judicial officer on second occasion for sanction of Super Time Scale.

19. This Court has considered the submissions made on behalf of the parties

and also perused the relevant documents and pleadings available on record in

order to ascertain the entitlement of the petitioner to receive Super Time Scale.

The eligibility criteria for sanction of Super Time Scale in favour of a judicial

officer is enumerated in Annexure -'R-1' appended to the Affidavit-in-

Opposition used by the respondent nos. 2, 3 and 4. In the letter dated 6 th

June, 2014 issued by the Deputy Registrar (Administration) same eligibility

criteria have been set out against query no. 2. This court has also made an

endeavour to find out whether the petitioner was an eligible judicial officer for

conferment of Super Time Scale of Pay in terms of such eligibility criteria before

issuing notification dated 19th December, 2008 by the Registrar (Judicial

Service).

20. It appears that the petitioner was granted Selection Grade scale vide

notification dated 29th July, 2006 w.e.f. 30th May, 2002, therefore, at the time

of issuing notification dated 19th December, 2008 petitioner completed three

years' service as a recipient of Selection Grade Pay and he was within the 10%

posts of higher judicial officers in the rank of District Judge in addition thereto

for taking decision on conferment of Super Time Scale of Pay before the

notification dated 19th December, 2008 ACR of 2005, 2006 and 2007 were

considered. The petitioner was awarded 'C' (Good) in 2005, 'B' (Very Good) in

2006 and in 2007 he was awarded 'C' (Good). Therefore, during these period of

2005, 2006 and 2007 he was not awarded 'E' once and not awarded 'D' more

than once; rather it appears he was not at all awarded 'D' or 'E' in 2005, 2006

and 2007. It is also an admitted position that no departmental or criminal

proceeding was pending against the petitioner on the charges of misconduct,

moral turpitude, lack of integrity or dereliction of duty at the material point of

time and he was not punished by the disciplinary authority on any of the

grounds mentioned above or by any criminal court in respect of any penal/any

criminal offence.

21. Therefore, it appears that on applying the eligibility criteria as set out in

Annexure-'R-1' to the Affidavit-in-Opposition the petitioner is eligible to receive

Super Time Scale of Pay. This court is at a loss having seen the reply to query

no. 3 communicated vide letter dated 6th June, 2014 issued by the Deputy

Registrar (Administration) to him that reason for not granting Super Time Scale

of Pay was non-fulfillment of eligibility criteria in reference to notification dated

19th December, 2008. As discussed above it is apparent that in terms of the

relevant eligibility criteria petitioner is found to have fulfilled those conditions

therefore, the reason for non-consideration of the candidature of the petitioner

for grant of such benefit as communicated by the Deputy Registrar

(Administration) vide letter dated 6 th June, 2014 appears to be erroneous.

22. On behalf of the respondents it has been argued strenuously that

petitioner was not found fit to get the benefit of Super Time Scale while issuing

notification dated 12th September, 2006 therefore, next eligible officer junior to

the petitioner was accorded such benefit and there is no scope left open to

consider the eligibility of the petitioner for grant of such benefit. Such

submission does not hold much water since sanction of Super Time Scale of

Pay is not a process by which a judicial officer is promoted from the existing

post to the next higher post rather it pertains to grant of higher scale of pay.

Therefore, if junior officer is sanctioned Super Time Scale vide notification

dated 12th September, 2006 when the petitioner was found not eligible cannot

lead to a situation where the petitioner cannot be considered for grant of such

scale of pay at the time of issuing subsequent notification on 19 th December,

2008. Had there been case where higher post is filled up by allowing promotion

to a junior officer when a senior officer was found ineligible, the question of

promoting the senior officer subsequently on assessment of eligibility to the

said higher post is not possible. But in the present case this court is

considering sanction of Super Time Scale of Pay to the petitioner which ought

not be closed since junior officer was sanctioned Super Time Scale vide

previous notification dated 12th September, 2006.

23. Both the learned advocates representing the parties to this writ petition

have submitted that Rule 15 of Rules of 2003 is the only relevant provision

relating to grant of Super Time Scale to an eligible judicial officer. Said Rule 15

is quoted below:

"15. Selection Grade Scale and Super Time Scale for Higher Judicial Officers in the rank of District

Judges.- The promotion to the pay scales of Selection Grade and Super Time Scale shall be on merit-cum- seniority basis to be decided by the High Court of Calcutta. 25% of the posts of High Judicial Officers in the rank of District Judges who have put in not less than 5 years of continuous service in a post in the rank of District Judges shall be awarded Selection Grade Scale and 10% of the posts of Higher Judicial Officers in the rank of District Judges who have put in not less than three years of continuous service in the Selection grade posts shall be allowed Super Time Scale of Pay."

24. On perusal of Rule 15 it does not appear that any bar is provided therein

to the extent that once a judicial officer is not found fit for conferment of Super

Time Scale cannot be considered on subsequent occasion. Apart from said Rule

15 reliance has also been placed by the respondents on Annexure 'R-1' to the

affidavit-in-opposition wherein eligibility criteria has been set out where no bar

is clamped on consideration of an eligible judicial officer for second time for

sanctioning such benefit.

25. It appears that one judicial officer namely, Sukumar Chakraborty,

though was not found eligible at the time of issuing notification dated 23 rd

February, 2006 but subsequently vide notification dated 12 th September, 2006

was sanctioned Super Time Scale of Pay and this fact of sanction of Super Time

Scale in favour of said Sukumar Chakraborty upon consideration of the

eligibility on the second occasion dilutes the submission of the respondents

that once a judicial officer is found ineligible in granting Super Time Scale

cannot be considered subsequently.

26. Attempt has been made on behalf of the respondents to explain the

instance of granting Super Time Scale to said Sukumar Chakraborty on

consideration of his eligibility for the second time by terming such exercise as

mistake therefore, it has been argued that the benefit conferred by mistake

cannot be extended to other similarly circumstanced candidates and in this

regard reliance has been placed on the following judgments of the Apex Court;

(i) (2013) 14 SCC 81 (Basawaraj And Another Vs. Special Land Acquisition

Officer );

(ii) (2020) 10 SCC 496 (State of Madhya Pradesh And Others Vs. Amit

Srivas).

27. Though effort has been made to term such grant of benefit in favour of

said Sukumar Chakraborty as mistake but this court finds as it has been

discussed above that there is no impediment in grant of Super Time Scale to a

judicial officer upon scrutinizing his eligibility for the second time and it

appears there is no existing provision which prevents the authority from

granting such benefit to such judicial officer if he is found eligible on scrutiny

on second occasion. Therefore the judgments of the Apex Court cited on behalf

of the respondents are of no help.

28. Mr. Basu has argued that since the petitioner retired on 31 st October,

2007 and the notification was issued on 19 th December, 2008 therefore Super

Time Scale could not be granted to the petitioner but such attempt on the part

of the learned advocate representing the respondents is found to be made in

desperation since judicial officers named against serial nos. 2, 3 and 4 in the

notification no. 6100-A dated 19th December, 2008 retired prior to sanction of

benefit of Super Time Scale. Therefore, superannuation of the petitioner on 31 st

October, 2007 ought not impose any restrictions upon the respondent

authorities in deciding the case of the petitioner for sanction of Super Time

Scale of Pay.

29. Accordingly decisions communicated to the petitioner vide memo dated

16th January, 2013 and subsequent memo dated 28 th February, 2014 are set

aside. Concerned authority of respondent no. 2 is directed to revisit the

eligibility of the petitioner to receive Super Time Scale of Pay on the basis of the

eligibility criteria as set forth in "Annexure- R1" to the affidavit-in-opposition of

the respondent authorities within a period of twelve weeks from this date. Such

decision shall be taken on the basis of ACRs of the petitioner for the year 2005,

2006 and 2007 and taking into account observations made by this court as

aforesaid and decision to be taken in terms of this order shall be

communicated to the petitioner within one week thereafter.

30. With the above direction this writ petition stands disposed of. However,

there shall be no order as to costs.

31. Urgent photostat certified copy of the order, if applied for, be given to the

parties upon usual undertakings.

(Saugata Bhattacharyya, J.)