In The High Court At Calcutta Constitutional Writ Jurisdiction Original Side WP285of 2015 Utpal Bakshi -Vs.The Registrar General, High Court, Calcutta & ORS.Before : The Hon’ble Justice Mr.Arijit Banerjee For the Petitioner : Mr.Anjan Bhattacharjee, Adv.Mr.Aniruddha Sarkar, Adv.Mr.Tandra Dutta, Adv.For the Respondent : Siddhartha Banerjee, Adv.Heard on : 14/05/15 & 02/06/15 CAV On : 09/06/15 Judgment on : 19/06/2015 Arijit Banerjee, J.: (1) In the instant writ petition the petitioner challenges an order dated 20th January, 2015 issued by the Registrar General, Calcutta High Court, whereby the petitioner was reverted back from the post of Assistant Court Officer to the post of Stenographer Grade A with effect from 26th February, 2014.
The case of the petitioner in short is as follows.
(2) The petitioner was appointed as Stenographer under Grade C with effect from 20th November, 2000 after he passed the shorthand test and typing test conducted by the Recruitment Committee of the Calcutta High Court.
Between February, 2002 and March 2004, the petitioner worked as the Personal Assistant of the Hon’ble Justice Kalyan Jyoti Sengupta.
In March, 2004 he was promoted to the post of Stenographer under Grade B.
In 2010 he was promoted to the post of Stenographer under Grade A.
Between 2012 and February, 2014 the petitioner worked as the Personal Assistant of then Hon’ble The Chief Justice Mr.Arun Mishra.
From February, 2014 till 26th November, 2014 he worked as an Assistant Court Officer in the Court of the Hon’ble Justice Ashim Kumar Ray.
(3) On 28th October, 2014 a selection test was conducted for the post of Assistant Court Officer under the supervision of a Special Committee constituting of three Hon’ble Judges of this Court.
Being dissatisfied with the performance of the petitioner in the selection test, the said committee recommended that the petitioner be reverted to the post of Stenographer Grade A.
Pursuant to such recommendation the Registrar General issued the order dated 28th January, 2015 which is under challenge in the present writ application.
(4) Ld.
Counsel for the petitioner referred to Article 229 of the Constitution of India.
Article 229 (1) provides that appointment of Officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or Officer of the court as he may direct.
Article 229 (2) provides that subject to the provisions of any law made by the Legislature of the State, the conditions of service of Officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or Officer of the Court authorised by the Chief Justice to make rules for the purpose.
Ld.
Counsel referred to The Calcutta High Court Service Rules, 1960 and in particular to Rule 12 which provides as under:“Vacancies in the higher grades of the High Court Service, Class III shall be filled according to merit and ordinarily promotion from the lower grade in the same class.
No assistant of the lower grade shall have any claim to promotion to a higher grade merely on the ground of seniority.” (5) Ld.
Counsel for the petitioner submitted that the aforesaid Rule 12 of the Calcutta High Court Service Rules, 1960 does not provide for conducting selection test.
The special committee had no power to conduct the selection test and hence, the recommendation of the special committee is a nullity and without jurisdiction.
Ld.
Counsel further submitted that the appointment of the petitioner as per his appointment letter, became confirmed after three years from the date of appointment.
The petitioner worked under three Hon’ble Judges and none of them made any adveRs.remark against the petitioner as regards his ability or efficiency.
(6) Ld.
Counsel relied on a decision of this Court in the case of JayaSr.Ghosh-vs.-The State of West Bengal reported in 2014 (1) CLJ17wherein at paragraph 24 of the judgment it was observed that if a glaring illegality in the selection process is demonstrated before the Court affecting one’s right protected by Articles 14 and 16, an unsuccessful candidate (if he/she can prove to the satisfaction of the court that such glaring illegality could not have been known to him/her before the selection process was complete and that he/she came to learn of the same after completion of the selection process) can legitimately question a concluded selection process.
(7) On the strength of the aforesaid submissions, Ld.
Counsel for the petitioner prayed for quashing of the order impugned.
(8) Ld.
Counsel for the respondents submitted that having participated in the selection test and having become unsuccessful the petitioner cannot now contend that the selection process should not have been held.
In this connection, Ld.
Counsel relied on a Supreme Court decision in the case of Madan Lal-vs.-State of Jammu and Kashmir reported in (1995) 3 SCC486 wherein at paragraphs 9 and 10 the Supreme Court observed as follows:"9.
Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview.
Up to this stage there is no dispute between the parties.
The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned.
Thus the petitioners took a chance to get themselves selected at the said oral interview.
Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition.
It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted.
In the case of Om Prakash Shukla v.
Akhilesh Kumar Shukla, AIR1986SC1043 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.”
10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful.
It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better.
It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews.
Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee." (9) Ld.
Counsel further submitted that the impugned order only gives effect to the recommendation of the special committee but such recommendation is not under challenge.
Hence, no relief can be granted to the petitioner.
He further submitted that it would appear from the report of the special committee that the petitioner committed too many mistakes in the selection test.
Merit cannot take a back seat.
Any candidate in order to be unsuccessful in a promotional test will have to prove his ability and efficiency.
In this connection, Ld.
Counsel relied on a decision of the Hon’ble Supreme Court in the case of Hon’ble Chief Justice, High Court of Bombay-vs.-B.S.Nayak reported in (2001) 9 SCC763 wherein at paragraph 2 of the judgment it was observed as follows:“2.
The appointments to the posts of Private Secretaries in the High Courts could be made by the Chief Justice as indicated in Article 229 of the Constitution.
In the absence of any rules framed by the Court or the learned Chief Justice, the direction of the learned Chief Justice operates in the field of appointment.
That being the position the Chief Justice was well within his jurisdiction in deciding the norms of merit cum seniority for filling up the posts of Private Secretaries and, in our opinion, that is the most befitting criteria for filling up the posts which takes into consideration the merit as a prime importance though seniority is not totally obliterated.
We do not find any justification for the Division Bench of the High Court to strike down the criteria in question on the ground that the same had not been given due publicity.
The question of giving publicity to the criteria would not arise as the learned Chief Justice has formulated the criteria for filling up the posts of Privates Secretaries which he thought appropriate for efficient administration and for efficient discharge of the duties of the Hon'ble Judges.
It cannot be disputed that the Private Secretaries to the Hon'ble Judges play an important role in taking down dictations and writing judgment and, if merit is not given its due consideration and appointments are made on the basis of seniority, then it would be difficult for any Judge to discharge his obligations.
We, therefore, find the impugned direction of the Division Bench of Bombay High Court to be wholly unsustainable in law.
We accordingly set aside the same and allow this appeal.” (10) Ld.
Counsel for the respondents then referred to Rule 5 of the Calcutta High Court Service (Appellate Side) Categorization of Posts, Channels of Promotion and Principles of Seniority Rules, 1986 framed by the Hon’ble Chief Justice in exercise of power vested in him under Article 229 (2) of the Constitution of India.
Rule 5 is set out hereunder:“5 (1) The criteria for promotion to posts in the category of Upper Division Assistant and Superintendent Grade II in the General Branch, and to the category of Assistant Court Officer in Technical Branch Part I, and to the category of Centenary Librarian or Librarian in the Technical Branch Part-II shall be seniority subject to rejection of the unfit.
5 (2) Subject to Rule 5 (3) the criteria for promotion to all other higher promotional posts shall be Merit-cum-Seniority.
5 (3) The criteria for promotion to selection or to Super Selection Grade Posts shall be merit only.” (11) Referring to the aforesaid Rule Ld.
Counsel submitted that the rules specifically provides for rejection of the unfit and makes merit of a candidate the most important criterion for granting him promotion.
(12) Ld.
Counsel also relied on a decision of the Hon’ble Supreme Court in the case of Chief Justice of Andhra Pradesh-vs.-L.V.A.Dixitulu reported in (1979) 2 SCC34 wherein at paragraph 29 of the judgment it was observed that the power of ‘Appointment’ conferred by Article 229 (1) includes the power to suspend, dismiss, remove or compulsorily retire from the service.
With regard to the servants and officers of the High Court under Article 229 makes the power of appointment, dismissal, removal, suspension, reduction in rank, compulsorily retirement etc.including the power to prescribe their conditions of service, the sole preserve of the Chief Justice, and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee, except to a very limited extent indicated in the provisos.
In conferring such exclusive and supreme powers on the Chief Justice, the object which the founding fathers had in view, was to ensure independence of the High Court.
(13) It was further submitted by ld.
Counsel that the successful candidate has not been impleaded as a party in this writ petition.
He is a necessary party as he will be adversely affected if the writ petition is allowed.
In his absence and without hearing him no relief should be granted to the petitioner.
(14) Ld.
Counsel finally submitted that this is not a case of demotion.
The writ petitioner was never confirmed in the higher post of Assistant Court Officer.
Hence, he cannot contend that by the impugned order he was demoted.
(15) In reply, Ld.
Counsel for the petitioner submitted that Rule 5 of the 1986 Rules framed by the Hon’ble Chief Justice also does not provide for holding a selection test.
As such, conducting such a selection test by the Special Committee was without the authority of law and the impugned order which is based on the result of such selection test is a nullity.
(16) I have considered the rival contentions of the parties.
The sole question that arises for consideration is whether the Special Committee had the power to hold a selection test.
Rule 12 of the Calcutta High Court Service Rules 1960 clearly provides that vacancies in the higher grades of the High Court service, Grade-III shall be filled according to merit.
Rule 5 of the Calcutta High Court Service (Appellate Side) Categorization of Posts, Channels of Promotions and Principles of Seniority Rules 1986 provides for promotion on the basis of merit-cum-seniority.
The said rules specifically provide for rejection of the unfit.
Thus, it appears to be quite clear that to be entitled to promotion, a candidate must prove his efficiency.
In my opinion, the best way to assess the efficiency of a candidate is to hold a selection test and that is what the Special Committee did.
It is not the case of the writ petitioner that the Special Committee was not authorised by the Hon’ble Chief Justice to hold such a selection test for choosing a candidate who is fit for promotion.
I am of the view that an employer is always at liberty to test the ability of an employee before granting him promotion to a higher post.
This is also necessary for efficiency in administration of work.
(17) The importance of merit as a criterion for granting promotion was clearly recognized by the Hon’ble Supreme Court in the case of Hon’ble Chief Justice, High Court of Bombay-vs.-B.S.Nayak (Supra).In the context of Private Secretaries to the Hon’ble Judges the Supreme Court observed that the Private Secretaries play an important role in taking down dictations and typing judgments and if merit is not given its due consideration and appointments are made on the basis of seniority, then it would be difficult for any judge to discharge his work.
Similarly, an Assistant Court Officer, is expected to be reasonably efficient in taking down shorthand notes and typing out matteRs.otherwise the administration of Court will suffer.
The Special Committee had unanimously fixed the criterion to select the candidates at a maximum of 75 mistakes.
The petitioner committed in excess of 140 mistakes and failed to qualify despite four chances.
Accordingly, in the interest of administration of the affairs of Court the Special Committee recommended that the petitioner be reverted back to the post of Stenographer Grade A whereas the other candidate who qualified, was recommended for confirmation in the post of Assistant Court Officer.
(18) No employee can claim promotion as a matter of right.
Before granting promotion to an employee, the employer is entitled to ensure that his skill and competence is commensurate with the duty that he has to discharge in the higher post.
For this purpose the employer is well within its right to test the employee who aspires for promotion.
In the present case, an Expert Committee comprising of three Hon’ble Judges of this court conducted the selection test and did not find the petitioner fit for the higher post.
The petitioner has not challenged the recommendation of the Special Committee nor is the Writ Court competent to sit in judgment on the decision of such an Expert Committee.
(19) In view of the aforesaid, I am of the opinion that there is no infirmity in the order challenged in the present writ application.
The impugned order merely gives effect to the recommendation of the Special Committee which conducted the selection test.
I am unable to accept the submission of the Ld.
Counsel for the petitioner that the selection test that was held was without authority of law.
Article 229 of the Constitution of India vests wide powers in the Chief Justice of a High Court or such other Judge as he may direct as regards the appointment and conditions of service of officers and servants of a High Court.
While my sympathies are with the petitioner, in law I am unable to grant any relief to him.
The writ application fails and is dismissed.
(Arijit Banerjee, J.)