Arun Kumar Sarkar & Ors vs The High Court At Calcutta & Ors
2023 Latest Caselaw 418 Cal

21 16.01 IN THE HIGH COURT AT CALCUTTA and 2023

Constitutional Writ Jurisdiction Ct No Appellate Side

AGM W.P.A. 1165 of 2023

Arun Kumar Sarkar & Ors Vs The High Court at Calcutta & Ors

WPA 903 of 2022.

Arun Kumar Sarkar & Ors Vs The High Court at Calcutta & Ors

Mr. Subir Sanyal, Ms. Sumouli Sarkar, Mr. Sagnik Roy Chowdhury.

... For the petitioners.

Mr. Joydip Kar, Sr. Advocate.

Mr. Siddhartha Banerjee, Mr. S. N. Ghosh.

... For the High Court Administration.

These writ petitions have been filed by the

employees working in different posts in the Appellate Side

Establishment of the Hon'ble High Court at Calcutta.

The petitioner nos. 1, 4 to 8 are working as Section

Officers. The petitioner no. 2 is working in the post of

Additional Court Keeper and the petitioner no. 3 is

working in the post of Superintendent Grade I.

There are forty sanctioned posts of Assistant

Registrars in the Appellate Side of this Hon'ble Court.

Vacancies for filling up 10 posts of Assistant

Registrars (General Branch) on the Appellate Side

Establishment was notified by a notice dated January 11,

2023. The said ten posts were notified to be filled up by

promotional appointment from the posts of

Superintendent Grade I, Additional Court Keeper and

Section Officers.

By the notice dated January 11, 2023 received by

the petitioners on January 13, 2023, the eligible officers

were required to appear for a written test scheduled to be

held on January 17, 2023, followed by an interview and

ACR Scrutiny to be held on February 4, 2023. The total

marks for the test is stipulated to be 50 (Written Test 30+

ACR 10+Interview 10).

The said notification dated January 11, 2023 is

under challenge in the present writ petition.

Mr. Subir Sanyal, learned counsel appearing on

behalf of the petitioners submits that all the three posts of

Superintendent Grade I, Additional Court Keeper and

Section Officers cannot be clubbed together for

consideration of promotional appointments to the post of

Assistant Registrar, Appellate Side.

The system followed so far is that the Section

Officers are promoted to the post of Additional Court

Keeper (which is a single cadre post) and Additional Court

Keeper is promoted to the post of Superintendent Grade

I/Senior Superintendent,(which is a single cadre post).

Only a Superintendent Grade I officer is eligible to

be appointed to the post of Assistant Registrar.

All appointments to the post of Assistant Registrar

is done by the same promotional channel apart from

cases of jump promotion which are considered in cases of

candidates with exceptional merit by the Hon'ble the Chief

Justice.

He further submits that the said promotional

channel has been followed since 2012 and even if a

person is kept at the post of Additional Court Keeper or

Superintendent Grade I for few hours, the said policy has

been followed. He draws the attention of this Court to the

notification dated August 28, 1986. Pursuant to the

Schedule A of the said notification, the promotion to the

post of Assistant Registrar has to be considered on the

basis of merit and seniority. From the said notification, it

appears that there is no post of Section Officer. The post

of Section Officers have been introduced in 1996 and has

not been included in the said notification of August 28,

1986 till date. He submits that for appointment to the

post of Assistant Registrar, the reserved posts should also

have been notified pursuant to a notification dated March

21, 1978. He contends that the recommendations dated

November 28, 2018 of the three Judge Committee relating

to the promotion to the post of Assistant Registrar,

Appellate Side should have been considered before the

issuance of the impugned notification dated January 18,

2023.

The recommendation of the three Judges'

Committee in 2018 was to the effect that the Attendance

Report, the Leave Records, Performance and ancillary

credentials of Superintendent Grade I has to be

considered for the purpose of promotion to the post of

Assistant Registrar. Such promotion was to be given

without holding any written test. He submits that by

issuing a notice on January 11, 2023 received by the

petitioners on January 13, 2023, the petitioners were

required to sit for written examination on January 17,

2023. The said procedure for promotion was illegal and

arbitrary. Furthermore, no sufficient time was given to the

petitioners for preparation required to be made in respect

of the written test.

Upon enquiry by the Court, he submitted that a

syllabus was also handed over on January 13, 2023 to

some of the incumbents/petitioners regarding the written

test to be held on January 17, 2023.

He submits that marks allocated for the interview

should be fifteen percent of the total allocated marks.

Here, the marks allocated for interview was 20 per cent.

So the impugned order dated January 11, 2023 was

vitiated.

Mr. Joydip Kar, learned Senior counsel appears on

behalf of the High Court Administration and submits that

he has no instruction on behalf of the High Court

Administration since he did not receive a copy of the brief

in WPA 1165 of 2023 till date. He submits that the

recommendations of the Hon'ble Recruitment and

Promotion (High Court) Committee dated May 5, 2022,

September 7, 2022, December 14, 2022 and the order

passed by the Hon'ble the Chief Justice on December 19,

2022 ratifying the aforesaid resolutions have to be

brought on record.

In rejoinder Mr. Sanyal submitted that he was

unaware of all the subsequent resolutions passed by

Hon'ble Recruitment and Promotion (High Court)

Committee after the resolution passed in 2018.

Having considered the rival submissions of the

parties and the materials placed on record, this Court

finds that there are several resolutions taken by the

Hon'ble Recruitment and Promotion (High Court)

Committee after 2018 for the purpose of filling up the

posts of Assistant Registrars.

The promotion to the post of Assistant Registrar has

to be considered on the basis of merit as well as seniority.

This Court is prima facie of the view that it is the

employers prerogative to assess merit in the form and

manner in which he chooses to assess it.

The view of this Court finds support in the three

Bench judgment of the Apex Court passed in civil Appeal

No. 3602 of 2020 (Chief Manager, Punjab National Bank

& Ant. Vs Amit Kumar Das) whereby it was held that the

prescription of qualifications for a post is a matter of

recruitment policy. The employer is entitled to prescribe

the qualification as a condition of eligibility. It is no part

of the role of function of Judicial Review to expand upon

the ambit of the prescribed qualification.

This Court prima facie finds that there is no

arbitrariness or perversity in requiring the

incumbents/petitioners to appear for written test for

assessing their merit.

However, this Court is also of the view that after

issuing the notice of January 11, 2023 which was served

on January 13, 2023 along with a copy of the syllabus to

some of the petitioners, the written test should not have

been directed to be held on January 17, 2023.

The petitioners should have been given sufficient

time to prepare and appear for the said written test in

view of the fact that this procedure was earlier not

followed.

In such circumstances this Court directs the

written test be re-fixed on February 17, 2023 and

consequently the interview and consideration of ACR

Scrutiny be held on March 3, 2023.

Let the matter appear under the same heading

'Motion' for further consideration on February 22, 2023.

It is expected that the High Court Administration

would be in a position to provide copies of the resolutions

mentioned hereinabove by way of written instruction on

the said date.

All parties are directed to act on the server copy of

this order downloaded from the official website of this

Hon'ble Court.

( Lapita Banerji, J.)