Biplab Ranjan Bose Vs. Public Service Commission and Ors. - Court Judgment

S.P. Talukdar, J.

1. Applications under Article 226 of the Constitution had been filed one after another in connection with the recruitment process in West Bengal Judicial Service Examination, 2007. To avoid confusion and controversy and in response to the submission made by or on behalf of the parties, those were heard analogously over a protracted period of time. All those matters are now being taken up one after another.

2. In W.P. No. 27163 (W) of 2008, the petitioner appearing in person claimed that he appeared in West Bengal Judicial Service Examination, 2007 in response to an advertisement for recruitment published in January, 2007. Result of the preliminary examination was declared by respondent No. 1, Public Service Commission, West Bengal on 16th June, 2007. Final result was published on 28th September, 2007. Successful candidates were asked to appear in the personality test. Petitioner did not find his name in the said list. Though much below his expectation level, he came to learn that he had procured only 490 marks in aggregate. Respondent No. 1 after personality test declared a final list of 152 candidates though declared vacancy was 109. The petitioner, thereafter, gathered the information that another candidate, Sri Padmanava Chakraborty, Roll No. 0100845, secured 482 marks including his marks in the personality test. Petitioner, by filing an application under Section 6(1) of the Right to Information Act, 2005, could get in writing that he got 490 marks in aggregate. He then submitted representation addressed to respondent Nos. 1 to 5 requesting them to quash the panel of selected candidates but there had been no response. Being left with no choice, he approached this Court with the instant application.

3. Respondent No. 5 contested the case by filing Affidavit-in-Opposition, inter alia, denying all the material allegations made by the petitioner.

4. In response to the allegation of anomaly in the selection process, it was claimed that the Public Service Commission called 226 general candidates against 75 unreserved vacancies fixing 515 1/2 as the cut off marks in the written total for such candidates. Sri Padmanava Chakraborty was initially found to have obtained more than 515 1/2 marks. He was called for personality test but the petitioner failed to obtain the requisite marks and so, was not called at the interview/personality test. Sri Chakraborty initially obtained 529 marks whereas the petitioner got 501 marks. The Selection Committee, after conclusion of the interview/personality test, examined the mark-sheets submitted by the examiners and found examiner variability in the valuation of answer scripts in nine subjects taking into account the average marks and range of marks awarded by different examiners of the selfsame subjects. The said Selection Committee, thereafter, in its meeting held on 27.12.2007 recommended for moderation of answer scripts on those subjects to minimize the examiners variations. It was stated that Hon'ble Justice Bhaskar Bhattacharya was nominated by the Hon'ble Chief Justice to act as a member of the Board in the interview. In terms of the rules of recruitment in the West Bengal Judicial Service, a sitting Judge of the High Court nominated by the Hon'ble Chief Justice is to be a member of the Selection Committee and his opinion shall not be disregarded unless there are strong and cogent reason for not accepting the same. After moderation was completed, the Selection Committee in its meeting held on 13th March, 2008 decided to accept the moderated marks and prepared the select list on the basis of the marks obtained by the candidates in the written test examination and interview taken together. Since neither the petitioner nor Sri Chakraborty could obtain more than 515 1/2 marks after moderation, they were not called for interview. Thus, there could be no anomaly or illegality in the selection process. The vacancies having already been filled up prior to submission of the representation dated 20th October, 2008, there was no scope for responding to the same. It was further stated that prior to filing of the writ application, large number of selected candidates had joined the services.

5. In A.S.T. No. 1558 of 2008, the petitioner, Ajay Kumar Shaw, sought for direction upon the respondent authority for considering the appointment of the petitioner in the post of Civil Judge (Junior Division)/Judicial Magistrate in terms of the announcement being No. 76 PSC/Con.(IIA) dated 19th March, 2008.

6. The petitioner, Ajay Kumar Shaw, claimed that he qualified the preliminary, written and personality test conducted by the Public Service Commission, West Bengal and his name appeared at serial No. 129 in the final select list of candidates. The petitioner, thereafter, came to learn that his appointment in the post of Civil Judge (Junior Division)/Judicial Magistrate, would be impossible in view of the fact that the respondent had decided to appoint only 80 candidates from the said select list. He was further informed that there was paucity of Court rooms though vacancies existed.

7. Referring to the resolutions adopted and as recorded in the minutes dated April 19, 2008 in the conference of the Chief Ministers of the States and the Chief Justices of the High Courts, it was submitted that in order to reduce arrears of cases and ensure speedy trial within a reasonable period of time, the vacancies in the High Courts as well as in Subordinate Courts were required to filled up on urgent basis. The petitioner further referred to the resolution regarding setting up of evening/morning Courts, giving appointment in the post of Special Judicial Magistrates/Special Metropolitan Magistrates and so on and so forth.

8. The guidelines given by the Apex Court in its order dated 4th January, 2007 in the case filed by Malik Mazhar Sultan had also been referred to by the petitioner. Deriving inspiration from the said guidelines, it was claimed that the select list to be published would reflect double the number of vacancies notified and the issue of the appointment letter would be for all existing vacant posts as on date. Such petitioner claimed that vacant posts would mean and encompass all those posts, which fell vacant after the issue of the advertisement. It was mentioned in the advertisement that 'the number of vacancies may increase'. Such increase would be based on future vacancies, which could arise during the subsistence of the selected candidates. In connection with the application being No. 21558 (W) of 2007, the learned Division Bench of this Court by order dated 14th March, 2008, directed the State Government to take appropriate steps to establish the Juvenile Justice Board in each and every district of the State of West Bengal as well as to comply with the other provisions of the Act by forming necessary number of Child Welfare Committees. The learned Court granted three weeks time to the State Government for taking necessary steps to implement the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in the year 2006. In the event of respondent authorities complying with the said direction, there would have been many more vacancies in the judicial service. It was further claimed that the respondents were under obligation to consider the appointment of the petitioner against the existing vacancies. It was then alleged that instead of filling up the vacancies from the select list, a fresh recruitment process was initiated and advertisement was published on 1st September, 2008.

9. The petitioner, in such circumstances, approached this Court with a writ application seeking direction upon the respondent authority to appoint the petitioner in such post.

10. The respondent No. 1 contested the said case by filing Affidavit-in-Opposition, inter alia, denying all the material allegations made by the petitioner.

11. It was stated that in Civil Appeal No. 1867 of 2006 relating to the case between Malik Mazhar Sultan and Anr. v. U.P. Public Service Commission and Ors., the Apex Court by its order dated 4th January, 2007 issued general directions and fixed time schedule for filling vacancies that could arise in the subordinate judiciary. Registrar (Judicial Service) by his letter dated 15th January, 2007 informed the Secretary, Judicial Department, Government of West Bengal that the total vacancy in the post of Civil Judge (Junior Division)/Judicial Magistrate was 113 for the year 2007. Leaving aside four posts which were required to be filled up as per direction of the Hon'ble Court, the Public Service Commission, West Bengal in response to the request of the Judicial Department initiated steps for filling up 109 posts. P.S.C. notified 109 vacancies and invited applications for filling up the same from the eligible candidates. By letter dated 19th March, 2008, the Secretary of the P.S.C. informed the Secretary, Judicial Department that it had prepared a select list of 152 candidates in order of merit and published the same and communicated to the Government and finally sent a list of 96 qualified candidates against 109 notified vacancies. P.S.C. was unable to recommend the name of candidates against 4 BC, 7 ST and 2 physically handicapped vacancies for want of qualified candidates in the said categories. The Registrar (Judicial Service), High Court, Calcutta, by letter dated 3rd April, 2008, informed the Joint Secretary to the Government of West Bengal, Judicial Department the vacancy position for initiation of the process of recruitment as 96 for the year 2007 and 49 for the year 2008. Subsequently, the said number was brought down to 80 on the plea that for lack of infrastructural facilities, it would not be possible to accommodate more. Such respondent No. 1 alleged that if the Government was to issue appointment letters in favour of 80 candidates only out of the list of 96 candidates recommended by the P.S.C., there was need for re-arranging the list as per reservation of vacancies. An application was filed before the Apex Court being No. I.A. 34 of 2008 seeking necessary direction and by order dated 14th May, 2008, the Apex Court directed that 'let all the 96 selected candidates be appointed within a period of four weeks on completion of necessary formalities.'

12. Accordingly, the State Government issued appointment letters in favour of 94 recommended candidates. It was unable to issue appointment letter in favour of 1(one) recommended candidate, as she was temporarily medically unfit. The recommendation in respect of a candidate reserved for S.C. was not received by the State Government from the P.S.C. Seven vacancies for S.T. were carried forward. P.S.C. notified the said vacancy for recruitment to the post of Civil Judge (Junior Division) for the year 2008. The preliminary examination had already been over. In such circumstances, there could be no scope for giving appointment to the petitioner whose position was 129 in the select list for the year 2007. Regarding possibility of having family Courts, Juvenile Justice Courts and others, such respondent referred to the fact that the entire recruitment process was to proceed as per the directions given by the Apex Court in the case of Malik Mazhar Sultan and Anr.

13. Dismissal of the application had been so prayed for.

14. Respondent No. 2 also contested the case by filing a separate Affidavit-in-Opposition. It appears that the claim, as made by the writ petitioner, was sought to be demolished by such respondent No. 2, virtually on the self-same ground.

15. In the writ application being W.P. No. 7041 (W) of 2008, the petitioners, namely, Ratul Ganguly and Sanchita Chakraborty, sought for direction upon the respondent authorities for exhausting the finally published select list of candidates for appointment in the West Bengal Judicial Service. They also sought for direction for not issuing any notification inviting application for fresh recruitment in respect of the vacancies in the said service.

16. They claimed that they appeared in the preliminary examination on 27th May, 2007. The result of the said examination was published in the English Daily, 'The Telegraph' on 15th June 2007 and their names appeared in such list as successful candidates. Thereafter, they appeared in the final examination. This was followed by the respondent authorities asking them to appear in the personality test, which was held for the two petitioners on 23rd November, 2007 and 3rd December, 2007 respectively. The select list of the candidates for recruitment to 109 vacancies (General 75, B.C. 8, S.C. 11, S.T. 12 and P.H. 3) was published in the Bengali Daily 'Ananda Bazar Patrika' on 23rd March, 2008. The names of the petitioners appeared there as against serial No. 127 and 125 respectively. It was intimated that the number of vacancies might increase. It is the legitimate expectation of the present petitioners that the respondent authorities would proceed to recruit in the judicial service and would, thus, give appointment to all those whose names appeared in the select list. It was also claimed that during the period from May 27 to April, 2008, the number of vacancies must have increased.

17. This application under Article 226 of the Constitution was taken up along with another application being A.S.T. No. 974 of 2008.

18. The petitioners in the said case virtually sought for identical relief. The petitioners, namely, Sweta Datta, Saurabh Dey and Lopamudra Dass Nandy, after they found that they had been selected for appointment in the said service, rushed to the office of the respondent/Public Service Commission. This was to ascertain the reason as to why they had not been called for verification even after their success in the final examination. They alleged that respondent/P.S.C. intimated that the existing vacancies of 109 posts having already been filled up, the petitioners could not be accommodated.

19. By filing the Supplementary Affidavit, the petitioners brought to the notice of the Court that the respondent/P.S.C. published an advertisement being No. 3/2008 on May 3, 2008 inviting applications from the intending candidates for recruitment to the West Bengal Judicial Service for filling up 56 vacancies (General 38, S.C. 05, S.T. 09, B.C. 03 and P.H. 01) for the year 2008.

20. With practically identical grievances, two other candidates filed another writ application being W.P. No. 9191(W) of 2008. The said applicants, namely, Samiul Haque and Harish Chandra Mishra, also sought for direction upon the respondent authorities for not proceeding with the recruitment in West Bengal Judicial Service for the year 2008. They also claimed to have duly qualified and finally selected in the said examination having their names duly published in the final select list. They alleged that in view of declaration of the names of 152 candidates, there could be no justification for not giving appointment to the petitioner No. 1, Samiul Haque, whose name appeared as against serial No. 93 and petitioner No. 2, Harish Chandra Mishra, whose position in the select list was 107. They also sought for necessary order directing the respondent authorities from not proceeding with the said examination for the year 2008.

21. Respondent/Registrar General, High Court, Calcutta, contested the case by filing Affidavit-in-Opposition. Apart from denying all the material allegations made in the instant application, it had been claimed by such respondent that a merit list with the names of 152 candidates was published in view of order of the Apex Court passed in Civil Appeal No. 1867 of 2006 (Malik Mazhar Sultan and Anr. v. U.P. Public Service Commission and Ors.). Subsequent advertisement being No. 3/2008 dated 3rd June, 2008 was also published in accordance with the guidelines of the Apex Court as made for recruitment of the candidates in West Bengal Judicial Service. Such respondent categorically disputed the claim that in the subsequent advertisement of the year, 2008, the number of vacancies shown should have been assessed after taking into account the total vacancies to be filled up on the basis of the West Bengal Judicial Examination, 2007. The respondent/Registrar General further claimed that the petitioners have no legal right to challenge a subsequent process of selection of candidates, as initiated by issuing the said advertisement dated 31st June, 2008.

22. In the Affidavit-in-Opposition as against the Supplementary Affidavit, the respondent claimed that vacancies, if any, arising subsequent to the examination for the year 2007 cannot be filled up by any candidate from the select list as prepared and published on the basis of the result of the said examination of 2007. It had been emphatically claimed that the petitioners could not have had any right whatsoever to be appointed in the posts in question in view of their respective merit position.

23. In W.P. No. 21719 (W) of 2008, the three petitioners, namely, Debasish Barman, Swatilekha Pal and Parijat Ray, sought for direction upon the respondent authorities to appoint the petitioners in the West Bengal Judicial Service and to declare number of vacancies of posts in the said service for the years 2004, 2005, 2006 and 2007. They sought for cancellation of the impugned notice dated 3rd May, 2008. They further sought for direction upon the respondent authorities to recast the panel of select candidates in accordance with the provisions of the West Bengal Scheduled Castes and Schedules Tribes (Reservation of Vacancies in Services and Posts) Act, 1976. Cancellation of the advertisement dated 3rd May, 2008 issued by the Public Service Commission, West Bengal, were sought for while seeking a direction upon the respondent authorities for not cancelling the select list dated 19th March, 2008. Such petitioners claimed that number of vacancies initially declared was 109 for the West Bengal Judicial Service Examination, 2007 which included 8 (eight) posts reserved for B.C., 11 (eleven) for S.C., 12 (twelve) for S.T. and 3 (three) for P.H. candidates. They claimed that there was no recruitment for the years 2004, 2005 and 2006 and consequently there had been no declaration of vacancies, which arose during the said period. Despite being approached, the respondent authorities did not supply any copy of the West Bengal Civil Service (Judicial) Recruitment Rules, 1951. A fresh advertisement was published for recruitment in the said service declaring number of vacancies as 56.

24. The petitioners claimed that they are eligible for appointment as Judicial Officers on the basis of the examination of the year 2007 if total number of vacancies which arose during the years 2004, 2005 and 2006, are taken into consideration. Besides, there had been direction for setting up of Juvenile Justice Board in each and every district. Referring to Schedule, being No. (IV) to (IX) under Section 4 of the West Bengal Scheduled Castes and Schedules Tribes (Reservation of Vacancies in Services and Posts) Act, 1976, the petitioners sought for redressal of their grievances. It was further stated that by non-consideration of the claim of the writ petitioners and not appointing them, the respondent authorities had violated Articles 14, 16 and 21 of the Constitution.

25. Respondent No. 2, being the Registrar General, High Court, Calcutta, by filing an Affidavit-in-Opposition, denied the material allegations made by the petitioners. It was stated that petitioner No. 1 belongs to scheduled caste whereas petitioner Nos. 2 and 3 belong to general category. It was then stated that the Apex Court in a pending case before it passed an order providing guidelines in connection with the recruitment in the subordinate judiciary. The vacancy position, as reflected from the various correspondences between Officers of the Registry in the High Court and the Secretary, Judicial Department, had been referred while submitting that it was not possible to give appointment to 32 officers from the panel since there was no existing vacancy at that point of time. The concerned authority proceeded with giving appointment to 80 candidates to fill up then existing actual vacancies.

26. With reference to the advertisement published for recruitment in 2008, it had been claimed that examination is required to be held on year-to-year basis and vacancy available in a particular year was to be filled up by the candidates selected in such year. Such respondent specifically claimed that there was no scope to accommodate the petitioners in the vacant posts available up to the year 2007. The petitioners, being empanelled in the merit list beyond the vacancies declared under the advertisement, do not have any claim for appointment. Besides, an empanelled candidate has no indefeasible right to be appointed in the concerned post. The panel does not confer any right on the candidates selected.

27. In the application, being W.P. No. 22704 (W) of 2008, the petitioner, while seeking a direction upon the respondent authority to appoint him in the post of Civil Judge (Junior Division) with immediate effect, prayed for direction upon the respondent authority to de-reserve the 13 reserved category seats, which were lying vacant.

28. The said application was also resisted by the respondent No. 1. In the Affidavit-in-Opposition filed by such respondent No. 1/Registrar General, High Court, Calcutta, it was stated that the writ petitioner ultimately was placed as against serial No. 94 of the select/merit list. Petitioner filed an intervening application in pending Civil Appeal No. 1867 of 2006 before the Apex Court. The said application was disposed of upon giving liberty to the petitioner to approach the High Court for appropriate relief. It was then stated that in the event of establishment of Juvenile Justice Boards as directed by the learned Division Bench of this Court, the respondent authorities would have very well taken appropriate action in compliance with the direction of the Apex Court in the pending Malik Mazhar case (Supra). Respondent No. 1 strongly denied that there had been any lack of concern on the part of the respondent authorities in the matter of recruitment in the West Bengal Judicial Service. Such respondent No. 1 further raised dispute regarding the claim of the writ petitioner and alleged that there could be no cause of action for approaching this Court with such an application under Article 226 of the Constitution.

29. Though circumstances may be different, it appears all the writ petitioners have their grievances against the manner in which the West Bengal Judicial Service Examination, 2007 was held and the way, selection had been made. The allegation, as ventilated in the writ application, being W.P. No. 27163(W) of 2008 relates to alleged arbitrariness on the part of the respondent authority in depriving the petitioner from the benefits, which were extended to one Sri Padmanava Chakraborty, who, according to the petitioner, scored much less. This has been explained by referring to the fact that the Selection Committee being headed by the Hon'ble Justice Bhaskar Bhattacharya introduced 'moderation of answer scripts' to minimize the examiners variations. Justifiability of introduction of such method is a different question altogether. But that was decided to be an essential part of the selection process. As explained by the respondent, on the basis of such moderation of answer scripts, the writ petitioner as well as Sri Chakraborty went out of consideration and none of them was finally taken for interview. Thus, the said writ petitioner in W.P. No. 27163(W) of 2008 does not seem to have any valid reasons for approaching this Court and the petition is accordingly liable to be dismissed.

30. The applicant in the writ petition, being A.S.T. No. 1558 of 2008, namely, Ajay Kumar Shaw, was placed at serial No. 129 in the final select list of candidates. The petitioner sought to explain the legitimacy of his claim on the basis of the various resolutions taken in order to reduce arrears of cases and ensure speedy trial. It cannot be disputed that millions of pending cases all over the country continue to embarrass the institution of judiciary. The resolutions adopted in the various conferences of the Chief Justices and the Chief Ministers may very well reflect the concern of the establishment. But that by itself cannot give any enforceable right in favour of a candidate who admittedly could not make it in the select list. Whether there is need for having more and more recruits and in case that is done, the petitioner, whose name though appeared as against serial No. 129 of the select list could also be considered for appointment is far too remote a matter. However important it might be in the interest of society and the country, the petitioner having stood 129 in the select list could not be said to have any legitimate claim whatsoever where the authority chose not to go beyond 80 candidates. Thus, the grievance of the writ petitioner, Ajay Kumar Shaw, in A.S.T. No. 1558 of 2008 is clearly of little substance.

31. On behalf of the two petitioners, namely, Ratul Ganguly and Sanchita Chakraborty in W.P. No. 7041(W) of 2008, it was submitted by Mr. Roy, as learned Counsel on their behalf that both the petitioners duly passed the test and they were in the select panel being placed as against serial Nos. 127 and 125 respectively. Referring to the fact that the advertisement was for recruitment in 152 posts, there could be no justification whatsoever for not appointing the said two petitioners on the basis of the West Bengal Judicial Service Examination, 2007. Mr. Roy submitted that there could not be any vested interest but this by itself cannot permit the respondent authority to act in an arbitrary manner. In course of submission, Mr. Roy referred to the fact that while calculating the number of vacancies, the authority concerned did not take into consideration the order of the learned Division Bench of this Court directing setting up of Juvenile Courts. Mr. Roy further submitted that even declaration of vacancies could not be permitted to be arbitrary. It has to take into consideration all relevant criteria. It was then mentioned that the said two petitioners quite obviously had the legitimate expectation that having been placed as serial Nos. 127 and 125 of the select list of 152 candidates, they would be offered appointment in West Bengal Judicial Service. It was further submitted that the vacancies are to be declared taking into consideration the population Judges ratio. The various observations made in connection thereto cannot be ignored. Even after notification, there must have been increase in the number of vacancies. Mr. Roy, as such, expressed wonder as to why in that event all the candidates in the entire select list cannot be accommodated.

32. Annexure-'P-6' (at page 25) of W.P. No. 7041 (W) of 2008 is the copy of the advertisement published in connection with recruitment in West Bengal Judicial Service Examination, 2007. The vacancies declared was 109 (including 8 reserved for BC, 11 for SC, 12 for ST and 3 for PH candidates). It was also indicated that the number of vacancies could increase. This, according to Mr. Roy, justifiably gave rise to legitimate expectation.

33. In response to this, Mr. Alok Kumar Ghosh, as learned Counsel for the respondent/High Court Administration, submitted that the petitioners had unnecessarily sought to expand and extend the scope and implications of the relevant advertisement, being Annexure- 'P-6'. He submitted that mere empanelment does not accrue any right in favour of any candidate and there could be no question of any legitimate expectation particularly for those who were placed at serial Nos. 125 and 127 of the select list. He submitted that even a selectee cannot claim appointment as a matter of right. In fact, the two petitioners in W.P. No. 7041(W) of 2008 could not establish any proper right so as to entitle them to get appointment in the Judicial Service.

34. In A.S.T. No. 974 of 2008, the three petitioner, namely, Sweta Datta, Saurabh Dey and Lopamudra Dass Nandy claimed that they were placed as serial Nos. 122, 102 and 113 respectively in the select list of candidates. They all belong to the general category candidates. It was claimed that having regard to the number of the advertised vacancies being 109 and in view of preparation of a list of 152 candidates, there could be no reason whatsoever for not accommodating the said petitioners. It was also submitted that the panel is ordinarily kept alive for a period of one year. Though in view of amalgamating a number of cases and continuation of hearing over a protracted period of time and consideration of the same, much time had elapsed, it is required to be analyzed and ascertained as to whether there could be any right in favour of the said three applicants/writ petitioners.

35. Mr. Prabal Kumar Mukherjee, appearing as learned Counsel for the said three petitioners, submitted that the writ Court can very well appreciate the legitimate expectation of a person even in absence of any enforceable right in his favour. Mr. Mukherjee on behalf of the said three applicants submitted that the petitioners approached this Court for enforcement of their right of being considered for appointment in Judicial Service in the vacancies that arose after publication of the advertisement being No. 4/2007 dated February 17, 2007 till the expiry of the validity of the select list/merit list made and published on March 19, 2008/March 23, 2008 according to their rank. He contended that the respondents could not legally proceed with any further recruitment process for 56 vacancies as advertised on May 3, 2008, till the validity of the select list made and published on March 19, 2008/March 23, 2008 is exhausted.

36. Deriving support and strength from the decision of the Apex Court in the case between State of Rajasthan v. Jagdish Chopra as reported in : (2007) 8 SCC 161, it was submitted that the vacancies arising in the subsequent years could be filled up from the select list prepared in the previous year and not in other manner. The Apex Court in the said case held that 'even otherwise, in absence of any rule, ordinary period of validity of select list should be one year'.

37. He also referred to the decision of the Apex Court in the case between State of U.P. v. Ram Swarup Saroj as reported in : AIR 2000 SC 1097 in this regard.

28. Attention of the Court was invited to the West Bengal Judicial (Conditions of Service) Rules, 2004 while submitting that the appointments are to be made by the Governor in accordance with West Bengal Civil Service (Judicial) Recruitment Rules as notified by No. 1713-J dated 31st March, 1951, as subsequently amended, after consultation with High Court and the Commission. Rule 9 confers right of consideration for appointment of the qualified candidates whose names are forwarded by the Commission in the list to the Government in order of merit.

39. Referring to the decision of the Apex Court in Malik Mazhar Sultan and Anr. v. U.P. Public Service Commission in Civil Appeal No. 1867 of 2006, it was submitted that the time schedule of recruitment process for appointment to the post of Civil Judge (Jr. Divn.) by direct recruitment is mandated. The same are:

The number of vacancies to be notified by High Court - 15th January.

Advertisement inviting applications from eligible candidates - 1st February.

Declaration of final select list and communication to the appointing authority - 1st November. (Note-select list be published in order of merit and should be double the number of vacancies notified).

Issue of appointment letter by the competent authority for all existing vacancies as on date - 1st December.

40. Mr. Prabal Mukherjee sought to interpret such directions by saying that the appointment letters were, thus, required to be given to select listed candidates for all existing vacant posts as distinguished from notified vacancies. The qualified candidates who are select listed were to be appointed for all existing vacant posts in order of merit, which essentially presupposes that the right of being considered for appointment of qualified select list candidates to all existing vacant posts continues till next select list/merit list is published and all vacancies which arose during the intervening period, being all existing vacant posts are to be filled up from the preceding select list/merit list.

41. The gist of the argument advanced by Mr. Prabal Mukherjee is that though maintenance of time schedule is mandatory and any deviation or variation is required to be ratified from the Supreme Court, as directed in the decision of Malik Mazhar Sultan's case, there had been no attempt to adhere to the time schedule. The petitioners sought for enforcement of their right of being considered for appointment in West Bengal Judicial Service in the vacancies that arose after publication of the advertisement being No. 4/2007 dated February 17, 2007 till the expiry of the validity of the select list/merit list made and published on March 19, 2008/March 23, 2008 according to their rank in consonance with Article 16 of the Constitution and action based on legitimate expectation. The declaration had also been sought as to the period of validity of the 'select list' in absence of available provision in the Rules. It was also submitted that in view of issuance of advertisement on May 3, 2008, there could be no scope for any controversy as to the availability of vacancy and as such, the respondents were estopped from initiating recruitment process since the petitioners, who are select listed candidates have pre-existing right to be considered for appointment in all existing vacancies/available vacant posts according to their ranking on merit, till the period of validity of the select list is exhausted.

42. Referring to the various decisions of the Apex Court and Rule 9 of the West Bengal Judicial (Conditions of Service) Rule, 2004, it was contended on behalf of the petitioners that the validity of the select list continues at least for a period of one year from the date of its publication or till next select list is published whichever is later. The petitioners, thus, sought for direction upon the respondent authorities for considering their candidature for appointment in all existing vacancies/all available vacant posts according to their rank.

43. Referring to the decision of the Apex Court in the case between State of Rajasthan and Ors. v. Jagdish Chopra (Supra), it was submitted that a panel/merit list should ordinarily be valid for one year if the rules are silent on this point. Mr. Prabal Mukherjee also invited attention of the Court to the West Bengal Judicial (Conditions of Service) Rules, 2004 and the various provisions therein - particularly Rule 9.

44. In the context of the stand of the respondent/High Court Administration that for better appreciation and in the best interest of justice, scaling system was introduced, it was submitted on behalf of the petitioners in the cases under reference that the scaling formula does not necessarily address or rectify the effect of strictness or liberality of the examiner. In the case between Sanjay Singh and Anr. v. U.P. Public Service Com., Allahabad and Anr. as reported in : AIR 2007 SC 950, while overruling the earlier decision in the case reported in 2003 AIR SCW 5844 the Apex Court held that the scaling formula is more suited and appropriate to find a common base and inter se merit, where candidates take examinations in different subjects. It was observed that 'when the object of the selection process is to try to select the best, and even one mark may make the difference between selection or non-selection, the system of scaling which has the effect of either reducing or increasing the marks in an arbitrary manner will lead to unjust results. This is in addition to the main disadvantage that scaling does not remedy the ill-effects of examiner variability arising out of strictness or liberality in valuation.'

45. Mr. Jayanta Mitra, appearing as learned Senior Counsel for the writ petitioners in W.P. No. 21719(W) of 2008, referred to the decision in the case between Sheo Shyam and Ors. v. State of U.P. and Ors. as reported in : (2005) 10 SCC 314. This was in the context of his submission that there is need for consistency in approach with reference to period of validity of waiting list of select candidates. Mr. Mitra also referred to the decision in the case between Sri Kant Tripathi and Ors. v. State of U.P. and Ors. as reported in (2001) 10 SCC 237. But the dispute raised in the said case related to the calculation made by the Allahabad High Court to find out the ratio between direct recruits and promotees in U.P. Higher Judicial Service in respect of recruitment made in different recruitments years.

46. The factual backdrop of the case is distinctly different from that of the present case and consequently, the said decision does not seem to have much relevance in the case. But the Apex Court while dealing with the said case referred to the settled law that an applicant, whose name appears in the wait list, does not get an enforceable right for being appointed to a post.

47. Much emphasis was laid by Mr. Roy, appearing as learned Counsel for the writ petitioner in W.P. No. 7041(W) of 2008, on the urgent need for revitalizing the institution of judiciary. Deriving inspiration from the decision in the case between All India Judges' Association and Ors. v. Union of India and Ors. as reported in : (2002) 4 SCC 247, it was submitted that if sufficient number of Judges are not appointed, justice would not be available to the people, thereby undermining the basic structure. An independent and efficient judicial system is one of the basic structures of our Constitution. The Apex Court in the said case observed:

It is well known that justice delayed is justice denied. Time and again the inadequacy in the number of Judges has adversely been commented upon. Not only have the Law Commission and the Standing Committee of Parliament made observations in this regard, but even the head of the judiciary, namely, the Chief Justice of India has had more occasion than one to make observations in regard thereto. Under the circumstances, we feel it is our constitutional obligation to ensure that the backlog of the cases is decreased and efforts are made to increase the disposal of cases. Apart from the steps which may be necessary for increasing the efficiency of the judicial officers, we are of the opinion that time has now come for protecting one of the pillars of the Constitution, namely, the judicial system, by directing increase, in the first instance, in the Judges strength from the existing ratio of 10.5 or 13 per 10 lakh people to 50 Judges per 10 lakh people.

48. Mr. Roy also submitted that the application of law depends upon the fact situation obtaining in each case. Deriving support and strength from the decision in the case between Director, SCTI for Medical Science & Technology and Anr. v. M. Pushkaran as reported in : (2008) 1 SCC 448, it was submitted that the authority concerned cannot be permitted to act in an arbitrary manner. The Apex Court in the said case held:

The law operating in the field in this behalf is neither in doubt nor in dispute. Only because the name of a person appears in the select list, the same by itself may not be a ground for offering him an appointment. A person in the select list does not have any legal right in this behalf. The selectees do not have any legal right of appointment subject, inter alia, to bona fide action on the part of the State. Whereas the selectee as such has no legal right and the superior Court in exercise of its power of judicial review would not ordinarily direct issuance of any writ in absence of any pleading and proof of mala fide or arbitrariness on the part of the employer. Each case, therefore, must be considered on its own merit.

49. Though reference was made to another decision of the Apex Court in the case between Virender S. Hooda and Ors. v. State of Haryana and Anr. as reported in : (1999) 3 SCC 696, I do not think that the decision in the said case has any manner of application to the facts and circumstances of the present case.

50. Mr. Roy, thus, contended that a candidate in the select list has certainly a right to be considered for appointment. It is for the respondent authorities to act bona fide and in the cases under reference, the respondent authorities had not acted bona fide in not taking into account the vacancies available. So, such action on the part of the respondent authorities was arbitrary.

51. Mr. Prabal Mukherjee, while echoing the submission of Mr. Roy in this regard, further referred to Rule 9 of the West Bengal Judicial (Conditions of Service) Rules, 2004 and submitted that it does not speak about longevity of a panel.

52. Mr. Arunabha Ghosh, appearing with Ms. Debjani Sahu, as learned Counsel for the petitioner in W.P. No. 22704(W) of 2008, submitted that recommendation of the High Court under Article 233(2) and consultation with High Court under Article 234 are sine qua non for direct recruitment of District Judges at the apex level and other Judicial Officers at the base level respectively of the State Judicial Service. Reference was made to the decision in the case between State of Bihar and Anr. v. Bal Mukund Sah and Ors. as reported in (2004) 4 SCC 640. It was contended that judicial service does not come within the ambit of Article 309 so as to clothe the Legislature with the power to legislate in this regard.

53. Attention of the Court was invited to an unreported decision of the Division Bench in W.P. No. 21558 (W) of 2007, wherein the learned Court directed the State Government to take appropriate steps to establish the Juvenile Justice Boards in each and every District of the State of West Bengal as well as to comply with the other provisions of the Act by forming necessary number of Child Welfare Committees. The State Government was given three weeks time for taking necessary steps to implement the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended by 2006 Act. Inviting attention of the Court to the copies of the various documents annexed to the writ application, being W.P. No. 22704(W) of 2008, learned Counsel sought to establish that there had been inherent inconsistency in the approach of the respondent/High Court Administration as well as the respondent/State of West Bengal. Such inconsistency essentially related to fixation of the number of available vacancies and matters relating thereto.

54. Reference was further made to the decision of the Apex Court in the case between Ashok Kumar Yadav and Ors. v. State of Haryana and Ors. as reported in : (1985) 4 SCC 417. This is in the context of the need for attracting the finest talent in the judiciary.

55. Mr. Arunabha Ghosh sought to derive inspiration from the decision in the All India Judges' Association and Ors. (Supra), while submitting that in order to attract the best of talent, there is need for monitoring the recruitment procedure and this could best be done by having active and direct guidance of a sitting judge of the concerned person. He then went on to submit that it is not for the High Court to dictate the vacancy but the High Court has the pre-dominant role in ascertaining 'quality' at the time of interview. It was further submitted that in the midst of selection, no new criteria could be permitted to be introduced.

56. It was contended on behalf of the petitioner in W.P. No. 22704(W) of 2008 that the petitioner approached the Apex Court by way of intervening application being Nos. 37 and 38 in the pending Civil Appeal No. 1867 of 2006. The Apex Court by its order dated 24th July, 2008 granted leave to the applicants to approach the High Court for appropriate relief, particularly, in the light of the order dated March 14, 2008 passed in W.P. No. 21558(W) of 2007. The Division Bench of this Court by order dated 14th March, 2008 directed the State authorities to construct Juvenile Justice Boards. Consequent upon such judgment, it could not be disputed that 19 further vacancies occurred and as such, there could be no reason for not accommodating the petitioners.

57. Much was submitted in regard to the manner in which the calculation of the exact number of vacancies was made. In view of the submission made on behalf of the respondent/High Court Administration that 26 officers were promoted to the rank of Civil Judge (Senior Division). The vacancies arising therefrom ought to have been taken into consideration. While drawing attention of the Court to the copies of the various annexures particularly the correspondences made between the officers of the High Court and that of the State of West Bengal, it was categorically submitted that those do not unfortunately project the exact state of affairs.

58. In this context, learned Counsel sought to analyze the stand taken by the respondent/High Court Administration in order to establish the claim that the respondent/High Court Administration did not place the matter properly before this Court.

59. Attention of the Court was also drawn to the letter dated 15th January, 2007 from the Registrar (Judicial Service), High Court, Calcutta in support of the claim that there had been 113 vacancies. It was also contended that 13 vacancies in the reserved category could also be filled up from the candidates in the select list without getting those carried over.

60. Mr. Alok Ghosh being led by learned Senior Counsel, Mr. Saktinath Mukherjee categorically submitted that whatever action had been taken by the High Court Administration in the matter of recruitment in response to West Bengal Judicial Service Examination, 2007 was essentially under the direction of the Apex Court. What emerged from his submission is that there could be no question of any legitimate expectation since mere empanelment does not accrue any right and selectee cannot claim appointment as a matter of right. Mr. Ghosh contended that there could be no indefeasible right to be appointed though the State authorities cannot act in an arbitrary manner. It was also submitted that this Court in response to an application under Article 226 of the Constitution cannot interfere with the policy decision and there cannot be any issuance of writ of mandamus directing filling up of vacancies. It was emphatically submitted that in absence of arbitrariness, it is outside the scope of judicial review as to whether the respondent authorities were bound to fill up the vacancies or not.

61. Referring to the application filed by the petitioner, Ajay Kumar Shaw, it was submitted that there could be no rational justification for attempting to establish any claim on the basis of the Division Bench judgment of this Court and direction given therein for setting up of Juvenile Justice Board in every district.

62. Mr. Saktinath Mukherjee, while leading Mr. Ghosh, as learned Counsel for the respondent authority, submitted that the writ petitioners could not have had any indefeasible right to be appointed when the decision of the authority not to fill up of the vacancies was based on sound bona fide reasons. In this context, he referred to the decision of the Apex Court in the case between Batiarani Gramiya Bank v. Pallab Kumar and Ors. as reported in : (2004) 9 SCC 100.

63. Learned Senior Counsel, Mr. Saktinath Mukherjee on behalf of the respondent/High Court Administration, submitted that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute impose a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. He referred to the decision in the case between The State of Haryana v. Subash Chander Marwaha and Ors. as reported in : (1974) 3 SCC 220.

64. While submitting that inclusion of names of candidates in the merit list does not confer any right to be selected, reference was made to the Apex Court decision in the case between Shankarsan Dash v. Union of India as reported in : AIR 1991 SC 1612.

65. No doubt, it is the settled position of law that the decision to fill up or not to fill up a post is a policy decision. Unless said decision is infected with the vice of arbitrariness, there is no scope for interference in judicial review. This finds support in the decision of the Apex Court in the case between Food Corporation of India and Ors. v. Bhanu Lodh and Ors. as reported in : (2005) 3 SCC 618.

66. In the case between State of U.P. and Ors. v. Rajkumar Sharma and Ors. as reported in : (2006) 3 SCC 330, the Apex Court observed that selectees cannot claim appointment as a matter of right. Mere inclusion of candidate's name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the candidates concerned cannot claim that they have been subjected to hostile discrimination. It was further observed that even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake.

67. In the case between Sanjoy Bhattacarjee v. Union of India and Ors. as reported in : AIR 1997 SC 2179, the Apex Court took into consideration the fact that there were names of candidates appearing in waiting list but that fact does not confer any right of appointment and consequently directions for not filling up of subsequent vacancies by fresh recruits until candidates in waiting list are exhausted, could not be given.

68. In Government of Orissa Through Secretary, Commerce and Transport Department, Bhubaneswar v. Haraprasad Das and Ors. as reported in : (1998) 1 SCC 487, the Apex Court held that where authority decides for a valid reason not to make further appointments, such decision cannot be termed arbitrary.

69. In State of Bihar and Ors. v. The Secretariat Assistant, S.E. Union 1986 and Ors. as reported in : AIR 1994 SC 736, it was observed by the Apex Court that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary.

70. On behalf of the respondent/Public Service Commission, while adopting the argument advanced on behalf of the respondent/High Court Administration, it was contended by learned Counsel on its behalf that in absence of arbitrariness, unfairness or mala fides, the candidates could not have had any right to insist that the earlier process of selection must be completed. The writ Court ordinarily is not expected to act on the basis of sympathy in absence of any legal right. Ref: State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors. : (2008) 1 SCC 456.

71. In course of submission, reference was repeatedly made to the decision in the case between Malik Mazhar Sultan and Anr. v. U.P. Public Service Commission and Ors. in Civil Appeal No. 1867 of 2006 and the various orders passed in connection thereto. Mr. Saktinath Mukherjee, appearing as learned Senior Counsel for the respondent/High Court Administration, while inviting attention of the Court to the directions given by the Apex Court in the said case, submitted that some of the directions are mandatory requiring strict compliance whereas some others are directory and there is need for substantial compliance of the same. In view of the manner in which posts in the subordinate judiciary were directed to be filled up, there could be little scope for elasticity.

72. At the time of hearing of the cases, it had been mentioned that there are inconsistencies in the stand taken by the respondent/High Court Administration and the respondent/State of West Bengal in various matters including assessment of the actual vacancies. It was submitted that in the event and setting up of Juvenile Justice Boards in each district of the State as directed by the learned Division Bench of this Court in connection with the public interest litigation, there would be few more vacancies in the post of Civil Judge (Jr. Divn.). In absence of any report that such direction had already been complied with, I do not think much reliance can be placed on this. It appears that the concerned authorities took into consideration the lack of infrastructural facilities, which included insufficiency of Court buildings while ascertaining the actual number of vacant posts. These are all very significant aspects and none can deny that there is need for urgent action on the part of the respondent authorities to remove all such difficulties. Anxiety for having a better functioning subordinate judiciary has been shown by the Apex Court in various cases including that of Malik Mazhar Sultan, as referred to earlier. It will be unfortunate, if the need to have a smooth functioning subordinate judiciary does not get the care and attention it deserves. Though administration of subordinate judiciary is essentially in the domain of the High Court, administration of justice is an essential obligation of the State.

73. Having regard to the scope and ambit of the writ applications under reference, I do not think it necessary to deal with all these aspects in further detail. It may, however, be said that in none of the writ applications, there had been any allegation that the respondent authorities acted in a mala fide manner in the selection of candidates on the basis of the result of the West Bengal Judicial Service Examination, 2007. Referring to the scaling system, it was strongly contended that there could be no justification for adopting the said system and that possibly contributed to the controversies.

74. As referred to earlier, the Apex Court did not appreciate adopting such method. It is, no doubt, unfortunate that there had been lot of controversies raised by filing various applications under Article 226 of the Constitution regarding West Bengal Judicial Service Examination, 2007. It is not understood as to why the implementing agencies did not choose to take necessary direction from the Apex Court, as and when required. It is neither expected nor possible for each and every private individual to approach the Apex Court and ventilate his/her grievances. State Government employees are by and large recruited through examinations conducted by the West Bengal Public Service Commission and the Central Government employees are similarly recruited through examinations conducted by the Union Public Service Commission. A survey would clearly reveal that percentage of controversies raised is significantly less. There can be no rational justification for not appreciating such experience gathered by the Commissions and taking advantage of the same. So far recruitment of Judicial Officers is concerned, the High Court in each State has, no doubt, vital role to play.

75. In this context, it can very well be expected that the authorities conducting examination publish the details relating to process of recruitment more clearly in the advertisement. Since the Apex Court relaxed the eligibility criterion of having minimum three years practice in law, it is not understood why should enrollment with the Bar Council be insisted upon. There may be a good number of brilliant fresh law graduates who cannot afford to wait for enrollment, which may in certain circumstances take unduly long time. It is necessary to make it clear as to whether a law graduate, having already accepted some sort of occupation/service, may be temporary in nature, can aspire to compete in such examination. The authorities should make each and every relevant factor relating to eligibility clear and unambiguous instead of compelling the candidates to rush from pillar to post seeking clarification. It would be better for such authorities, as implementing agencies, to seek clarification from the Apex Court in the pending case.

76. But in none of the cases, it could be established to the satisfaction of the judicial conscience of the Court that the petitioner(s) had been discriminated against. It is well settled that mere empanelment does not accrue any right in favour of a candidate. It is for the authority to decide as to whether all the vacancies, as advertised, are to be filled up or not. In absence of any arbitrariness or mala fide on the part of the respondent authority, I find it difficult to appreciate the grievances, as ventilated in the applications. No such instance could be shown so as to establish that any candidate has been favoured at the cost of anyone else. It may be that things could be better coordinated leaving no scope for complications and controversies. But the writ petitioners having no enforceable right in their favour, cannot be entitled to get the relief, as sought for. After participating in the selection process, that too, without raising any dispute, and since they could not finally make it, the petitioners approached this Court which cannot be appreciated.

77. So, the applications, being W.P. No. 27163 (W) of 2008, A.S.T. No. 1558 of 2008, W.P. No. 7041 (W) of 2008, A.S.T. No. 974 of 2008, W.P. No. 9191 (W) of 2008, W.P. No. 21719 (W) of 2008 and W.P. No. 22704 (W) of 2008 fail and be dismissed. Consequently, any application, if pending, in connection with the said petitions stands disposed of.

78. There is no order as to costs.

79. Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.