UTTAM KUMAR SHAW VERSUS PARTHA SARATHI SEN & ORS.

UTTAM KUMAR SHAW VERSUS PARTHA SARATHI SEN & ORS.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11698 OF 2018
UTTAM KUMAR SHAW …APPELLANT
VERSUS
PARTHA SARATHI SEN & ORS. …RESPONDENTS
J U D G M E N T
M.M. SUNDRESH, J.
1. Heard Mr. Jayanth Nath, learned senior counsel for the appellant. Neither the
counsel for the High Court nor that of the contesting respondents would
want to make their submissions. While the counsel for the High Court
submitted that any decision of this Court would be duly implemented, it is
the say of the counsel for the contesting respondents that they have no desire
to pursue the matter further. Counsel for the State have stated that
appropriate orders may be passed based on the position it has taken.
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2. The appellant joined the Judicial Service in 1989 as a Civil Judge, Junior
Division. With the approval of the Full Court, he was deemed suitable for
empanelment in the rank of West Bengal Higher Judicial Services.
Accordingly, a communication was sent by the High Court to the Principal
Secretary to the Government of West Bengal and by the proceeding dated
24.12.2003. The relevant part of the aforesaid is appositely reproduced
herein:
“I am directed to say that the following officers have been found
suitable for empanelment in the rank of West Bengal Higher
Judicial Service in this meeting held on 13.12.2003 and approved
by the full court by circulation dated 23.12.2002:-
Sl.
No.
Name of the Officer Designation
xxx xxx xxx
28. Shri Uttam Kumar Shaw S.D.J.M. Kalna
xxx Xxx xxx
I am to request that Government may be moved to issue
necessary orders in the matter of appointment of the aforesaid
officers, on promotion to the West Bengal Higher Judicial Services
after replacing the service of the concerned officers who are
holding / are in deputation post in Government or in the other
Institution already communicated under court’s letter No. 8553-A,
dated 23.12.2003.
I am to add that on receipt of orders / notification from the
Government the orders will be issued.
This may be treated as extremely urgent.”
The Appellant was posted as a Fast Track Judge, accordingly.
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3. New rules in the form of the West Bengal Judicial (Conditions of Service)
Rules, 2004 came into effect from 01.10.2004. Under these rules, three
modes of recruitment and appointment with the appropriate percentage were
prescribed, and seniority shall be fixed with respect to the 40-Point Roster
System against the vacancies that arise. The purpose of these regulations
was to fill all vacancies in the District Judge cadre as they occur.
4. The learned counsel for the appellant submitted that there were several
vacancies which arose from 2004 to 2008, against which the appellant was
eligible. The High Court was unsuccessful in its efforts to fill the vacant
posts. In 2009, vacancies were finally filled both through direct recruitment
and the selection of jump promotees through a limited competitive
examination among qualified Senior Judges in the cadre of Civil Judge,
Senior Division.
5. A draft notification was published by the High Court in the year 2011 by
which the promotees just like the appellant were placed below the above two
categories recruited/promoted in the year 2009. Noting that such persons
were entitled to be considered in the vacancies arose between 01.10.2004 to
31.12.2008, the earlier draft notification was superseded by subsequent one
dated 29.11.2016, as could be seen from the following paragraphs:
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“Sub: Publication of fresh draft Gradation List for the officers
covered in the list belonging to the cadre of District Judge (Entry
Level) against the vacancies for the period from 01.10.2004 to
31.12.2008.
Sir,
I am directed to inform that the Hon'ble Court has been pleased to
prepare a fresh Draft Gradation List for the officers covered in the list
belonging to the cadre of District Judge (Entry Level) of the WSJS,
against the vacancies occurred during the period from 01.10.2004 to
31.12.2008, in supersession of the previous Draft Gradation List duly
published on 04.04.2013, and to direct for publishing the same inviting
views/objections, if any, from the officers covered in the list within a
period of 15 days time from the date of its publication. I am, accordingly,
to request you to cause circulation of the same amongst all the officers
appearing in the enclosed list, posted in your judgeship/on deputation, at
the earliest enabling them to submit views/objections, if any, so that the
same is reached at this end positively by the stipulated 15 days' time.
xxx xxx xxx”
“DRAFT GRADATION LIST OF THE OFFICERS
BELONGING TO THE CADRE OF DISTRICT JUDGE (ENTRY
LEVEL) OF THE WBJS AGAINST THE VACANCIES OCCURRED
FROM 01.10.2004 TO 31.12.2008, IN SUPRESSION OF EARLIER
DRAFT GRADATION LIST PUBLISHED ON 04.04.2013
Sl.
No.
Name
of the
Officers
Reasons of
occurrence
of vacancy,
viz. Date of
Retirement
(R)/Elevation
(E) / Death
of the Officer
(D)/
Voluntary
Retirement
(VR)/
Compulsory
Retirement
(CR)
Date of
occurrence
of vacancy
Merit
Position
as per
A.O.
Batch Remark
xxx xxx xxx xxx xxx xxx xxx
71. Sri
Uttam
Due to
retirement of
01.03.2008 NP/17th
/ 2010
1988
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Kumar
Shaw
Sri Dulal
Chandra Dey
w.e.f.
29.02.2008
xxx xxx xxx xxx xxx xxx xxx
6. Incidentally, it has been stated that the gradation list of officer promotions
beginning in 2009 will be published in due time. Thus, in its wisdom, the
High Court deems it appropriate to consider the names, including that of the
appellant, for appointment in the cadre prior to 2009, by placing above two
other categories i.e. recruited/promoted. Apparently, this is for the reason
that the mistake at the hands of the High Court needs to be remedied. We
may note, the others appointed in the year 2009 were not born in the cadre at
that relevant point of time.
7. The aforesaid being a draft gradation list merely calling for objections, if
any, was put into challenge before the High Court on the judicial side. The
Writ Petition filed was allowed as rules have come to vogue, and thus, 40-
Point Roster has to be followed. On a challenge, the Division Bench while
concurring with the views of the learned Single Judge in part, followed its
earlier order in declining the relief to the appellant.
8. The learned counsel appearing for the appellant submitted that the fact that
he was promoted to the rank of West Bengal Higher Judicial Service in the
year 2003 by the proceeding dated 24.12.2003, has been overruled. It is only
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an administrative act in posting him to function as a Fast Track Court Judge
as there was no bar to posting to any other post in the cadre of a District
Judge. The mistake was that of the High Court which was sought to be
rectified by the impugned draft list which was published by the Registrar
(Judicial Service), High Court, Appellate Side, Calcutta, dated 29.11.2016
against the vacancies which were available from the year 2004 to 2008. No
promotion whatsoever took place during that period. It is not as if all the
promotees would get seniority on a particular date but the date on which a
vacancy is made available against each of them is sought to be reckoned as
the date of appointment. If that is so, the date of appointment of the
appellant as a District Judge (Entry Level) would be 01.03.2008. The direct
recruits or the jump promotees were admittedly recruited and promoted in
the year 2009 alone. As a District Judge he was merely asked to man the
Fast Track Court. The position prior to the 2004 Rules is that there was only
one channel of promotion to the post of District Judge (Entry Level). As
facts not being considered in the correct perspective, the orders passed are
required to be overturned.
9. We have already recorded the stated position taken by the counsel appearing
for the respondents. At the outset, we do believe that the Writ Petition, as
filed, ought not to have entertained on draft gradation list calling for
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objections. Be that as it may, we would like to decide the matter on merits,
particularly, when a specific stand has already been taken by the High Court
also.
10.We do not find any error in the administrative decision taken by the High
Court in facilitating the issuance of the impugned communication calling for
objection on the premise that eligible officers will have to be fitted against
the vacancies for the period from 1.10.2004 to 31.12.2008. It is the fair
acknowledgment on the part of the High Court to redeem the mistake
committed in not promoting the officers at the appropriate time. One cannot
withhold the due promotion of the promotees till the date of recruitment of
the direct recruits or appointment of the jump promotes. The consequence
would obviously be disastrous.
11.We have also noted that, it is not as if all the promotees were fitted in the
vacancies of the year 2004 but it was spread over between 2004 to 2008.
This is notwithstanding the fact that a decision was taken way back in the
year 2003 to promote as District Judges. In such view of the matter, the
orders passed by the High Court may require interference. However, we
make it clear that giving effect to the impugned draft gradation list, cannot
be made applicable to other officers who are not before us. As any
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implementation might have a serious civil consequence, we are inclined to
observe so.
12.We have also been informed by the counsel appearing for few of the
contesting respondents that names of some of them have already been
cleared by the Collegium of the High Court as well as this Court, and
therefore, we make it clear that this judgment will not have any bearing on
such persons.
13.The appeal stands allowed. The judgments rendered by the learned Single
Judge and that of the Division Bench of the High Court of Calcutta stand set
aside. The High Court and the State Government are directed to give effect
to the impugned draft gradation list insofar as the appellant alone is
concerned, within a period of 12 weeks from the date of the receipt of the
copy of this judgment. Pending application(s), if any, stand(s) disposed of.
……………………………J.
 (SANJAY KISHAN KAUL)
……………………………J.
(M.M. SUNDRESH)
New Delhi,
September 13, 2022

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