Calcutta High Court
High Court At Calcutta And Ors vs Suchhanda Ganguly And Ors on 22 May, 2024
Author: Harish Tandon
Bench: Harish Tandon
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:-
The Hon'ble Justice Harish Tandon
And
The Hon'ble Justice Madhuresh Prasad
A.P.O.T.267 of 2023
WITH
WPO/1238/2023
IA NO:GA/1/2023
THE LD REGISTRAR GENERAL APPELLATE SIDE
HIGH COURT AT CALCUTTA AND ORS
Vs.
SUCHHANDA GANGULY AND ORS
A.P.O.T. 329 of 2023
WITH
IA NO:GA/2/2023
GA/3/2024
SUCHHANDA GANGULY AND ORS
Vs.
THE LD REGISTRAR GENERAL AND ORS
For the Respondent :Mr. Partha Sarathi Bhattacharyya,
Mr. Dhruba Ghosh,
Mr. Anand Farmania,
Mr. Raju Bhattacharyya,
Mr. Piyan Kumar Maity,
Mrs. Indumouli Banerjee,
Ms. Shamrin.
For the State Respondents : Mr. Biswabarata Basu Mallick,
Mr. Abhisheek Banerjee,
For the High Court Administration : Mr. Jaydip Kar,
Mr. Siddhartha Banerjee,
Mr. Sudipta Nayan Ghosh
Ms. Jyoti Rauth,
Mr. Anjan Bhandari
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
Heard on : March 05, 2024
Judgment on : May 22, 2024
Madhuresh Prasad,J.:
1. The present memorandum is filed by the High Court at Calcuttaby
way of intra-Court Appeal, being aggrieved and dissatisfied with the
judgment and order dated 14thJuly, 2023 passed in W.P.O. No. 1238 of
2023 whereby and whereunder the learned Single Judge has directed
the learned Registrar, Original Side, to dispose of the representations
dated 04.01.2021, 18.03.2021, 19.03.2021 and 28.03.2021 filed by the
writ petitioners. The order mandates passing of a reasoned order within
four weeks after affording an opportunity of hearing to the
representationist. The learned Single Judge has restrained the authority
from publishing the result of the promotional process till disposal of the
representations.
2. The brief factual matrix leading to filing of the writ petition
commences from issuance of one notice dated 01.06.2023. The notice
was in terms of the resolution dated 18.05.2023 adopted by the
Recruitments and Promotion (High Court) Committee ('HC Committee'
for short) duly approved by the Hon'ble the Chief Justice regarding
selection process for the newly sanctioned post of Deputy Registrar
(Legal). In terms of the notice dated 01.06.2023, the selection process
was scheduled to be held from amongst the Assistant Registrar (Direct
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
Recruit from Legal Profession) and Stamp Reporter(s). The selection
process comprised of a written test and viva voce.
3. The writ petitioners who are Assistant Registrars directly recruited
from the legal profession were offended by the fact that the notice
invited willingness/ unwillingness from Stamp Reporter(s), along with
the petitioners, for being considered as candidates for the selection
process to the post of Deputy Registrar (Legal).According to them,
clubbing of the post of Assistant Registrar (Direct Recruit from Legal
Profession) along with the Stamp reporter(s), as feeder posts for
selection to the post of Deputy Registrar is arbitrary and discriminatory.
The post of Stamp Reporter(s) is a Grade III post, whereas the
petitioners are holding Grade II posts. The clubbing, therefore, amounts
to treating unequals as equals and is violative of Article 14 and 16 of
the Constitution of India.
4. The writ Court after affording due consideration to the issue has
directed the Registrar General, Appellate Side, High Court at Calcutta to
consider the representations submitted by the writ petitioners in this
regard, before publishing the result of the promotional process. The
order and Judgment is thus under appeal at the instance of the High
Court.
5. An appeal (A.P.O.T. No. 329 of 2023) has also been filed by the writ
petitioners. It is their contention that the learned Single Judge has
erred in not considering the fact that the post of Assistant Registrar is
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
in existence since the inception of the Original Side Rules and Calcutta
High Court Service Rules, 1960. The post of Stamp Reporter(s) was,
however, introduced in 1974 in the Original Side Rules. The learned
Single Judge also erred in not taking into consideration the higher rank
of the post of Assistant Registrar in comparison to the Stamp
Reporter(s), who as per their case are not entitled to be within the zone
of consideration, at par with the writ petitioners for the post of Deputy
Registrar (Legal). Another distinguishing feature is thatthe post of
Assistant Registrar has promotional avenues, which was absent in the
case of Stamp Reporter(s). The writ petitioners are aggrieved by dilution
of their promotional prospects on account of inclusion of the Stamp
Reporter(s) within the zone of consideration for the promotional process.
Since the post of Deputy Registrar (Legal) was a new post being filled up
for the first time, the process for appointment by way of promotion to
the said post was required to be preceded by consultation with the
Governor of the State as contemplated under Article 229 of the
Constitution of India and by framing rules in this regard accordingly.
The nature of duties performed by the Assistant Registrar (Direct
Recruit from Legal Profession) and the Stamp Reporter(s) are also
lacking in similarity, which is a pre-requisite for clubbing of two posts.
Clubbing of the two posts as feeder posts was also required to be
preceded by compliance with the principles of Natural Justice, allowing
the writ petitioners an opportunity of being heard. The same having not
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
been done the decision suffers on this count also and is legally
unsustainable. Had such opportunity been granted to the petitioners,
the petitioners would have brought to the notice of the High Court the
fact that such clubbing of post was arbitrary and discriminatory and
that the impugned notice seeks to equate the writ petitioners (Assistant
Registrar) who are unequals holding the posts in Class II, with Stamp
Reporter(s) who are holding Non-Gazetted Ministerial Class III posts.
The further submission of the petitioners before the writ Court was that
rejection of theirearlier representations in this regard is mechanical
and by a non-speaking order, and, therefore, unsustainable in the eyes
of law.
6. The writ petitioners are not satisfied with the order of the learned
Single Judge in as much as the same merely directs for disposal of the
representations. According to them, the impugned notice with respect to
the promotional process was/is required to be quashed, and positive
directions issued, declaring the candidature of the Stamp Reporter(s) as
ineligible; and to direct for conducting of the selection process afresh
excluding the Stamp Reporter(s) from the process and to confine
consideration in the fresh process to Assistant Registrar (Direct Recruit
from Legal Profession).
7. The first and foremost issue raised by the writ petitioners was that
the notice dated 01.06.2023 initiating the selection process for the
Assistant Registrar (Direct Recruit from Legal Profession) was
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
discriminatory in nature. Discrimination has been alleged, referring to
the nature of work being performed by the Assistant Registrar (Direct
Recruit from Legal Profession), their pay scale as also the fact that
categorizationof the post of Assistant Registrar (Direct Recruit from
Legal Profession)is a class higher than that of the Stamp Reporter(s). To
emphasize discrimination the writ petitioners have also claimed
superiority over the Stamp Reporter(s) on the premise that their post
has been in existence since inception of the Original Side Rules and the
Calcutta High Court Service Rules, 1960. The post of Stamp Reporter(s),
however, was introduced in the Original Side Rules much later, that is
in 1974. The fact that the post of Assistant Registrar had specified
promotional avenue, which the Stamp Reporter(s) did not have is also
relied upon to allege discrimination.
8. Upon careful consideration of the submissions and material relied
upon by the writ petitioners, in the course ofthese proceedings we are of
the opinion that some of the grounds urged in support of the alleged
discrimination are based on non est reasons. The fact that the post of
Stamp Reporter(s) was introduced in the Service Rules later in time, and
after the post of Assistant Registrar (Direct Recruit from Legal
Profession),per se cannot sustain the petitioners claimed superiority
over the Stamp Reporter(s). There is no dispute that when the impugned
notice of appointment was issued both the posts were very much
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
inexistence in the Service Rules, and were filled up by persons who were
discharging duties on their respective posts.
9. Another ground urged by the writ petitioners regarding the duties
of Assistant Registrar (Direct Recruit from Legal Profession)and the
Stamp Reporter(s) lacking in similarity, is also in our opinion
irrelevant.Such distinction, even if it exists, would not disentitle the
Stamp Reporter(s) to be clubbed with the Assistant Registrar (Direct
Recruit from Legal Profession)as feeder posts for the selection process
initiated under the impugned notice, for appointment of Deputy
Registrar (Legal). The alleged difference in the duties performed by the
Assistant Registrar (Direct Recruit from Legal Profession) and the Stamp
Reporter(s) may perhaps have assumed significance if the writ
petitioners had shown to this Court that the duties performed by the
Assistant Registrar (Direct Recruit from Legal Profession)as opposed to
Stamp Reporters constituted any kind of experience which may be
useful or relevant to the performance of duties on the higher posts of
Deputy Registrar (Legal). Such is not the case of the writ petitioners. It
is not their case that their experience on the lower post is of performing
duties which has a nexus with duties of the higher post for which the
promotion process is being undertaken, so as to give them any
advantage over the Stamp Reporter. We, therefore, hold that alleged
distinction in the duties performed by the Deputy Registrar (Legal) with
that of the Stamp Reporter(s), is irrelevant and cannot be made the
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
basis of alleging discrimination by clubbing of the two posts as a
common feeder reservoir for appointment by way of promotion to the
post of Deputy Registrar (Legal).
10. The claim of the Assistant Registrar (Direct Recruit from Legal
Profession) that they are superior to the Stamp Reporter(s) by virtue of
being in a higher class/ higher scale is required to be examined with
reference to the Calcutta High Court Service Rules, 1960. The writ
petitioners have placed reliance on Schedule 'A' of the 1960 Rules to
show that the post of Deputy Registrar (Legal) and Assistant Registrar
(Direct Recruit from Legal Profession) are posts of class II whereas the
post of Stamp Reporter(s) is a class III posts. Referring to Schedule 'A' of
the 1960 Rules they have submitted that even scale of pay of the post of
Assistant Registrar is higher than that of the Stamp Reporter(s). The
learned Senior Counsel appearing for the appellant has pointed out a
basic fallacy in such claim of the writ petitioners based on Schedule 'A'
by highlighting the fact that the same is a schedule for the Appellate
Side of the Calcutta High Court. The schedule of services in the Original
Side of the Calcutta High Court are specified in Schedule 'B' of the same
Rules wherein there is no such distinction to be found between the
Assistant Registrar (Direct Recruit from Legal Profession) and the Stamp
Reporter(s). In fact, both Assistant Registrar (Direct Recruit from Legal
Profession) as well as Stamp Reporter(s) in the Original Side relating to
which the impugned notice has been issued are in the same pay scale
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
(Ref : 1974 Amendment). We find force in such submission of the
learned Senior Counsel representing the High Court, since it is evident
from a bare perusal of Schedule 'A' and Schedule 'B' of the Rules that
Schedule 'A' relates to the Appellate Side whereas schedule 'B' relates to
the Original Side which is relevant to the issue in these proceedings.
We, thereforefind that reliance placed by the learned Counsel for the
petitioner on Schedule 'A' is futile in establishing any discrimination
with the Stamp Reporter(s) based on class or scale of the two posts.
11. Another ground raised by the writ petitioners to allege
discrimination is that promotional avenue is lacking for the Stamp
Reporter(s) whereas specified for the Assistant Registrar (Direct Recruit
from Legal Profession).In our opinion, this fact only substantiates the
reasons assigned by the H.C. Committee, duly approved by the Chief
Justice that the Stamp Reporter(s), who entered service based on the
same qualifications as theAssistant Registrar (Direct Recruit from Legal
Profession)have been stagnating for wantof promotional avenues; and
thus being in the same scale of pay, could also be provided a
promotional avenue in the self same process of selection by way of
promotion notified by the impugned notice. The decision of the Chief
Justice to allow the Stamp Reporter(s) to participate in the recruitment
process was to ameliorate the undue hardship being faced by the Stamp
Reporter(s) on account of the their stagnation, for want of promotional
avenues, for which Annexure II of the Calcutta High Court Service Rules
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
specifically empowers the Chief Justice. Annexure II is a Rule dated
13.09.1962 framed under Article 229 of the Constitution of India with
approval of the Governor. The relevant extract of the said Rule is being
quoted for ease of relevance :-
"In cases where the Chief Justice is satisfied that the operation of
any of these rules causes undue hardship, he may, by order,
dispense with or relax the requirements or that rule to such extent
and subject to such conditions as he may consider necessary for
dealing with the case in a just and equitable manner."
12. In view of the source of power being derived from this notification
dated 3rdSeptember, 1962, we find another issue raised by the writ
petitioners regarding non-compliance of Article 229 of the Constitution
of India also to be without any substance.
13. We are also not impressed with the stand of the writ petitioners
that the issuance of the impugned notification, initiating the selection
process for appointment of Deputy Registrar (Legal) was required to be
preceded by compliance with Principles of Natural Justice and after
giving an opportunity to the Assistant Registrar (Direct Recruit from
Legal Profession) for being heard. By clubbing the Stamp Reporter(s)
along with the Assistant Registrar (Direct Recruit from Legal Profession)
as a common feeder reservoir for promotion/ appointment to the post of
Deputy Registrar (Legal) no vested right of the writ petitioners has been
taken away. The alleged dilution of their promotional prospects cannot
be made the basis to claim an opportunity of hearing. The impugned
notification issued by the High Court is pursuant to decision of the
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
Recruitment and Promotion(High Court Committee) duly approved by
the Chief Justice, which as noticed above was in accordance with the
Rules framed under Article 229 of the Constitution of India. Such
exercise of jurisdiction with respect to promotional process of selection,
for a post undertaken for the first time under sanction of the Rule, is
not found to be discriminatory or violative of the Article 14 and 16 of the
Constitution of India.
14. There is no allegation that procedure being adopted under the
impugned notice, is in any manner lacking in fairness or that it violates
Articles 14 and 16 of the Constitution of India.
15. In the above circumstance, we find that there is no requirement of
compliance with the Principles of Natural Justice, for the same is not a
strait jacket formula to be applied in each and every circumstance. The
petitioners even if they are afforded with an opportunity of hearing,
would not have benefitted from the same whatsoever. The Principles of
Natural Justice, it is trite is no unruly horse and are not required to be
complied with in a case like the instant one. Compliance with Principles
of Natural Justice, in fact, would be nothing more than a useless and
empty formality. More so in the instant ease where there is no prejudice
that can be claimed by the petitioner. In this connection we consider it
worth taking note of decision of the Apex Court in the case of Kanwar
Natwar Singh vs Directorate Of Enforcement & Anr reported in
(2010)13 SCC 255.
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
16. All these issues have been duly considered by the learned Single
Judge and decided by referring to the facts, submissions and the legal
position in this regard. The learned Single Judge has rejected all the
submissions and has concluded in paragraph 35 "m" and "n" that there
is no requirement to dispose of the representations or afford an
opportunity of natural justice while framing rules under Article 229 (2)
of the Constitution of India. In the present case, the selection process
for Deputy Registrar (Legal) was being conducted for the first time after
decision of the Recruitment High Court Committee duly approved by the
Chief Justice, who was the competent authority to frameRules. The
facts of the present case as taken note of above make it abundantly
clear that discretion was exercised under the Rules; and no statutory
violation is made out. We, therefore, are not in agreement with the
conclusions and directions of the learned Single Judge as contained in
paragraph 35 cc, dd and ee and paragraph 36 of the Judgment of the
learned Single Judge whereby and whereunder the right of the
petitioners for having their representations disposed of after an
opportunity of hearing has been recognized. Such directions are
diametrically opposite to the findings of the learned Single Judge
recorded in paragraph 35 l., m., n. The directions are also
unsustainable when viewed keeping in background the findings
recorded by the learned Single Judge in paragraph 35 bb. wherein it
has been held that the reasons for clubbing together the post of
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
Assistant Registrar (Direct Recruit from Legal Profession) and Stamp
Reporter(s) are after due deliberation by the administrative committee
and that the Stamp Reporter(s) where not being given any undue
advantage, nor were the Assistant Registrar (Direct Recruit from Legal
Profession) being ousted from the process. The directions of the learned
Single Judge for consideration of the petitioners' representation and
opportunity of hearing, therefore, in our opinion, was wholly
unwarranted in view of the above noted findings of the learned Single
Judge.
17. In so far as the grievance of the writ petitioners regarding dilution
of their promotional prospects as a result of the decision to combine the
Stamp Reporter(s) along with the writ petitioners as a common feeder
corpus for promotion to the post of Deputy Registrar (Legal), we observe
that the same is a result of a conscious decision in accordance with law.
The bona fides of the decision is apparent from deliberations of the H.C.
Committee considering the hardship of the Stamp Reporter(s)for whom
there was no promotional prospects whatsoever. On the other hand, the
Assistant Registrar (Direct Recruit from Legal Profession) (writ
petitioners) were exclusively having a promotional prospect to the post
of Deputy Registrar (Legal), though they were not having any
qualification/ experience in addition to that possessedby the Stamp
Reporters.As noticed above both Assistant Registrar (Direct Recruit from
Legal Profession) (petitioners) and the Stamp Reporter(s) are members of
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
the same class and in the same scale of pay. The decision, therefore, to
combine the two posts as a common feeder corpus for consideration for
promotion to the post of Deputy Registrar (Legal) cannot be said to be
lacking in bona fides. It is also observed that the decision is in exigency
of service as having a common feeder corpus of the Stamp Reporters
along with the Assistant Registrars would only ensure that the
meritorious candidate is rewarded by way of promotion, augmenting the
efficiency of the higher promoted post. Merely because one of the
consequences of the decision of the H.C. Committee, taken in
accordance with law, by the competent authority, for valid reasons, was
likely to effect the promotional prospect of the petitioners, in future, the
same cannot be said to be bad in law. It is trite law, and the position is
well settled as can be seen from decision of the Apex Court in the case
ofK.S. Vora and Others vs. State of Gujarat and Others reported in
(1988) 1 SCC 311wherein the Apex Court was considering a similar
grievance and held that the rules of seniority are matters for the
employer to frame. The Apex Court has, further, held that even though
the future promotional prospect were likely to be affected by
introduction of a new set of Rules and if the Rules were made bona fide,
to meet exigency of service, no entertainable grievance could be made.
Paragraph 5 of the said Judgment is considered useful to quote, which
reads thus:-
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
"5.As we have already pointed out in the instant case the State
decided at stages to switch over to the common cadre in respect of
all the four grades of the Subordinate Service. Before common
grades had been formed promotion was granted departmentwise.
When ultimately a common cadre came into existence -- and all
that was done by 1974 -- it was realised that if seniority as given
in the respective departments were taken as final for all purposes
there would be prejudice. Undoubtedly the common cadre was for
the purpose of increasing the efficiency by introducing a spirit of
total competition by enlarging the field of choice for filling up the
promotional posts and in the interest of discipline too. After a
common cadre was formed, the general feeling of dissatisfaction on
account of disparity of seniority became apparent. The 1977 Rules
were introduced in this background to ease the situation. The
scheme of this rule protected the rank then held by every member of
the service notwithstanding alteration of seniority on the new basis.
This, therefore, made it clear that accrued benefits were not to be
interfered with. To that extent the 1977 Rules were not retroactive.
In spite of the protection of rule regarding the post then held, the
Rules brought about a change in the inter se seniority by adopting
the date of initial recruitment and the length of service became the
basis for refixing seniority. Total length of service for such purpose
is a well known concept and could not said to be arbitrary.
Undoubtedly one of the consequences of the change in the basis
was likely to affect prospects of promotion -- a matter in future.
Two aspects have to be borne in mind while considering the
challenge of the appellants to this situation. It was a historical
necessity and the peculiar situation that arose out of government's
decision to create a common cadre with four grades in the entire
Secretariat. We would like to point out with appropriate emphasis
that there was no challenge to creation of the common cadre and
certainly government was competent to do so. The second aspect to
be borne in mind is that rules of seniority are a matter for the
employer to frame and even though prospects of promotion in future
were likely to be prejudiced by introduction of a new set of rules to
regulate seniority, if the rules were made bona fide and to meet
exigencies of the service, no entertainable grievance could be made.
If these are the tests to apply, we do not think the appellants have
indeed any grievance to make. In our view, therefore, the High
Court rightly dismissed the contention and found that appellants
were not entitled to relief." (emphasis ours).
18. We also consider it apt to take into consideration the decision of
the Apex Court in the case of Renu and Others vs. District &
Sessions Judge, Tis Hazari Courts, Delhi and Another reported in
(2014) 14 SCC 50wherein the Apex Court has acknowledged the
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
administrative power of Chief Justice of a High Court for making
appointments or regulating other conditions of service with
constitutional backing. Such discretion exercised by the Chief Justice
has been held not to be open to be challenged, except on well-known
grounds only on a very strong and convincing argument to show that
the powers have been abused. Once it is found that the discretion has
been exercised in good faith and not in violation of any law, as in the
instant case, such discretion should not be interfered with by the
Courts merely on the ground that it could have been exercised
differently.
19. Having considered the matter in its entirety keeping in background
the settled legal position emanating from the Judgments considered
above, we find no infirmity in the notice dated 01.06.2023 setting in
motion the process of appointment to the post of Deputy Registrar
(Legal), by way of promotion from a feeder corpus comprised of the
Assistant Registrar (Direct Recruit from Legal Profession) and Stamp
Reporter(s). We also do not find any justification for the direction of
the learned Single Judge to consider the representations made by the
Assistant Registrar (Direct Recruit from Legal Profession) after
affording them an opportunity of hearing. To that extent, we interfere
with the decision of the learned Single Judge passed in the writ
proceedings. The instant appeal (A.P.O.T. 267 of 2023) is allowed to
this limited extent.
Calcutta High Court A.P.O.T. 267 of 2023dt. 22.05.2024
20. The A.P.O.T. 329 of 2023 preferred by the writ petitioners stands
dismissed.
21. Interim orders, if any, stand vacated. The applications, if any are
also hereby disposed of.
(Madhuresh Prasad, J.)
22. I agree.
(Harish Tandon, J.)
Later:
After pronouncement of the Judgment in the open Court, learned
Counsel for the appellant in A.P.O.T. No. 329 of 2023 prays for stay of
the operation of this order.
Since we have taken up a conscious decision, we do not think
there is any justification in staying the operation of the Judgment
and, therefore, the prayer is refused.
(Harish Tandon, J.)
(Madhuresh Prasad, J.)
.
