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Judgment
Ashim Kumar Banerjee, J.—Sri Prodyut Nath Bhaduri the petitioner above named was appointed as Judicial Officer on May 14, 1973. He served various offices under the Lower Judiciary. He was ultimately confirmed in Higher Judicial Service August 3, 199 with retrospective effect from June 1, 1997. On March 10, 1999, the writ petitioner''s term was extended for a period of two years after attainment of his age at 58 years. He retired as a Judge, City Civil Court on March 31, 2001. While petitioner was working as the Judge, City Civil Court, 3rd Bench, two complaints were received by the High Court Administration, alleging irregularity in the Court of the petitioner. One of such complaints was made by one of the litigants whose case was pending before the petitioner in 3rd Bench of the City Civil Court. On receipt of such complaints, a preliminary inspection was made when the Hon''ble Zonal Judge accompanied by the then Registrar Protocol and Vigilance visited the chamber of Bhaduri on April 17, 2000. The Hon''ble Zonal Judge after inspection, directed a regular enquiry, the petitioner was also transferred to another Bench of the City Civil Court. Thereafter, a regular inspection was held. The petitioner asked for personal hearing. Two Hon''ble Judges of this court gave personal hearing. He also filed written explanation to the charges brought against him. Ultimately, the then Registrar Inspection-II, after holding a regular enquiry submitted report on December 12, 2000 to the effect that the Charge relating to favouring the opponent of the complaint was not proved. The Inspecting Officer, however, observed that there had been regularities with regard to maintenance of Court Diary. According to Inspecting Officer, the same occurred due to peculiar system of maintenance of court record in City Civil Court as well as hectic and reckless disposal of matters by the petitioner. According to him, the petitioner was not so serious in passing order in time and as such he was negligent in discharging judicial work. The report was placed before the Zonal Judge. His Lordship passed an order to the following effect.
Shri Bhaduri may be cautioned as to the performance of his judicial duty,
The said order was passed on December 27, 2000. The then Registrar Inspection-II accordingly communicated such remark of His Lordship to the petitioner vide his letter dated January 22, 2001.
The petitioner filed a representation before the administration for expunging of such remark. Such representation was made on March 30, 2001 just before retirement.
On perusal of the records, it appears that apart from such incident, the petitioner had no other adverse record through out his service career, at least not drawn my attention to by the learned Counsel appearing for the High Court Administration.
As a regular routine procedure, petitioner came within the zone of consideration for being considered for Selection Grade along with his other colleagues. Such proposal was placed before the Administrative Committee on July 26, 2000 just before the inspection, which took place on July 27, 2000. The Administrative Committee recommended him along with others for Selection Grade subject to the approval of the Full Court. The issue of Selection Grade came up before the Full court for consideration on September 21, 2000. The Full Court deferred the case of the petitioner probably because of pendency of the enquiry. However, the issue was never placed again before the Full Court. The writ petitioner filed a representation before the Administration for consideration of his case for Selection Grade on March 19, 2001. The representation was placed before the Administrative Committee in its meeting held on May 4, 2001. The extract of the resolution of the Administrative Committee is as follows:.
To consider the "The representation of representation of Sri P.N. Shri P.N. Bhaduri, praying Bhaduri, Judge, 5th Bench, for granting the benefit of City Civil & Sessions Court, Selection Grade Scale is Calcutta for granting the considered. We do not benefit of Selection Grade find any merit in the Scale." representation. Hence, it is resolved, that the same be rejected".
Immediately after his superannuation on March 31, 2001, the petitioner was re-appointed by the State as the Presiding Officer in Consumer Forum, he was posted at Kooch Behar. In November 2002 he was transferred to Calcutta. He made further representation for consideration without yielding any result. Hence this writ petition.
The writ application was moved before Jayanta Kumar Biswas, J. The application was heard by His Lordship on June 30, 2004. The plea was taken on behalf of the Administration that the writ petition was a belated one. The petitioner''s grievance was gone into by the Administrative Committee and was rejected in May, 2001 whereas the petitioner approached this court after about three years. His Lordship upon hearing the rival contentions of the parties observed that the writ petition should be heard on merits after completion of affidavits.
Administration filed an affidavit-in-opposition, through the then Registrar (Judicial). The salient features appearing from the affidavit are summarized as follows:
(i) The petitioner along with other officers was considered for Selection Grade by the Administrative Committee and after ultimate consideration such benefit was deferred by the Pull Court in its meeting held on September 21, 2000. Subsequently a list containing the selected candidates was published on September 28; 2000, which was not challenged by the petitioner. It was also contended that merit cum seniority was the basis for the Selection Grade and Super time scale as per relevant rules of 2003, which had been given retrospective effect from July 1, 1996 (Paragraph-7),
(ii) The averment of the petitioner that he rendered spotless service as Judicial Officer was not admitted. The writ petitioner''s further representation was nor considered in view of his retirement. However, his subsequent representation was considered by the Administrative Committee which rejected the same in its meeting held 21 May, 2001 having found no merit therein. (Paragraph-8).
(iii) The decision of refusal to grant selection grade became final and the petitioner accepted such position without ventilating his grievance for long three years as such he was not entitled to re-open the issue. (Paragraph-9).
(iv) Petitioner''s contention that he had an unblemished service record was denied. The petitioner''s contention that there could be no nexus of the incident to the grant of benefit was also denied. It was contended that the petitioner was rightly denied the benefit of Selection Grade pay. (Paragraph-12).
Mr. Bidyut Kiran Mukherjee, Learned Senior Counsel in support of the allegation urged two points :
(i) The writ petitioner was considered for Selection Grade in 2000. He retired from service in 2001. Hence the rule, which came into force in 2003, could not have been applied in his case as contended by the Administration in their affidavit.
(ii) The writ petitioner had an unblemished service record till 1998 when he was given extension for two years. The writ petitioner was allowed Selection Grade by the Administrative Committee upon consideration of his entire service record. Hence he could not have been denied such relief on the basis of such warning issued to him in 2001.
To elaborate his submission Mr. Mukherjee contended that the 2003 Rule came into force with retrospective effect from 3996 meaning thereby the existing officers could be dealt within terms of the said Rule giving its retrospective effect from 1996. The writ petitioner admittedly retired in 2001. Hence his case could not have been considered under the rule. Moreover there had been no consideration by the Administration after May, 2001 when his representation was rejected by the Administrative Committee. According to Mr. Mukherjee at the relevant time, the Selection Grade was being given to the Judicial Officers on seniority cum merit basis on the basis of the guidelines prevalent at that point of time. Once the writ petitioner was allowed Selection Grade by the Administrative Committee there was no reason for which he was denied such benefit.
Mr. Mukherjee also contended that the Full Court deferred the issue in its meeting held on September 21, 2000, which casts an obligation on the administration to place it again before the Full Court till it was not finally decided. Hence his representation should have been placed before the Full Court instead of Administrative Committee. According to him, the Administrative Committee rejected his representation finding no merit, the original recommendation of the Administrative Committee still remain to be finally decided by the Full Court as it was deferred.
On the incident Mr. Mukherjee contended that the inspection was had by the Administration upon receipt of the complaints, which were not known to the petitioner, He offered his explanation, the same was considered and ultimately he was cautioned. No proceeding was initiated as against him as a follow up action and no penalty was awarded to him. In this regard, Mr. Mukherjee drew my attention in 2002 Service Rules wherein it appears that a warning issued to a Judicial Officer was not a penalty within the meaning of Rule 10 Note-1 of the said Rules, Mukherjee further contended that once he was cautioned after a detailed enquiry being had, he was entitled to make a representation for expunging such remark. He duly made his representation on March 30, 2001 and it was obligatory on the part of the Administration to have the said representation considered and disposed of. The said representation was still pending as appears from the record.
In support of his contention, Mr. Mukherjee cited the following decisions :
i) Unreported decision of the Learned Single Judge of this Court dated July 6, 1990 in Civil Rule No. 1384(W) of 1984 (Kashi Nath Bakshi vs. High Court at Calcutta & Ors.).
ii) Dayaram Asanand Gursahani Vs. State of Maharashtra and Others, .
iii) Gurdial Singh Fijji Vs. State of Punjab and Others,
iv) Amar Kant Choudhary Vs. State of Bihar and Others,
Apart from the aforesaid decisions Mr. Mukherjee also referred to All India Judges'' Association case reported in All India Judges'' Association and Others Vs. Union of India and Others, .
Citing the aforesaid decisions Mr. Mukherjee contended, in absence of appropriate Rule the writ petitioner was entitled to get Selection Grade automatically on the basis of seniority as these was no adverse record as against him. According to Mr. Mukherjee, the writ petitioner was wrongfully denied the Selection Grade which also debarred him to get super time scale before his retirement.
Mr. Aloke Ghosh, learned Counsel appearing for the Administration contended that granting of Selection Grade was the sole prerogative of the administration. In the case of the writ petitioner, the Administrative Committee considered him for the selection grade. The Administrative Committee found him suitable, however, the Full Court deferred the issue which amounts to rejection. His representation was further considered by the Administrative Committee and was rejected being meritless. This state issue could not be brought in a belated writ petition. Mr. Ghosh also contended that the Pull Court was not bound to assign reason for not granting Selection Grade. According to him, the consideration was made after consulting the entire service record of the petitioner which included such caution.
In support of his contention Mr. Ghosh relied on the following decisions:
i) Laxmi Engineering Works Vs. P.S.G. Industrial Institute, .
(ii) Chandra Gupta, I.F.S. Vs. The Secretary, Govt. of India, Ministry of Environment and Forests and others, .
(iii) R.L. Butah Vs. Union of India (UOI) and Others, .
Against the unreported decision of the learned Single Judge, according to Mr. Ghosh, appeal was still pending when the matter was heard by aw and hearing was completed.
After the matter was heard on being asked by this court Mr. Ghosh produced Xerox copies of the Service Records pertaining to the petitioner for the relevant years. He also favoured me with copy of the detailed enquiry report along with the remark of the Hon''ble Zonal Judge. The said record being confidential was not allowed to be inspected either by. the petitioner or his advocate and after my perusal those were returned to the Administration.
On a close scrutiny of the facts narrated above and perusal of the confidential record, the following facts reveal :
(i) Till the date of petitioner''s superannuation, no adverse remark was recorded in his Service Book. Even the caution, which was given to him, was not recorded in the Service Record in absence of a direction to the said effect by the Zonal Judge.
(ii) There was no complaint in whatsoever nature received by the administration during his service tenure since 1973 until receipt of the complaint while he was acting as Judge, City Civil Court in 1999-2000. The charges in the complaint were grave in nature, however, were not established on a detailed inspection. The concerned officer at his last lap of Lower Judiciary possibly became ambitious and tried to dispose of matters as much as he can and sometime beyond his capacity which resulted in pandemonium in that bench, However, he was cautioned, no adverse report thereafter came until his superannuation.
(iii) Caution was not a penalty and in any event, the Zonal Judge thought it fit not to direct recording of the said the Service Book of the petitioner meaning thereby, the learned Zonal Judge treated the same as a closed chapter by cautioning the writ petitioner so that he could be careful in his remaining period of service.
(iv) The issue was deferred by the Full Court at a stage when those serious charges were being investigated upon by the Inspecting Officer. The Full Court considered the issue in September, 2000 and the enquiry report was submitted in December, 2000. Hence Full Court rightly deferred the issue.
(v) The writ petitioner''s representation for expunging such remark was not at all placed by the administration either before the Administrative Committee or before the Full Court. The Administration failed in its duty to place the said representation for consideration of the Administrative Committee or the Full Court so that the same could have been contemporaneously disposed of on its merits.
(vi) The administration should have placed all his representations, be it for Selection Grade or be it for expunging of the remark before the Full Court so that the full Court could decide the issue afresh after having the benefit of the detailed enquiry report and the ultimate remark of the learned Zonal Judge In case, the said remark had at all any bearing on his denial of the Selection Grade.
(vii) In the alternative since the said remark Was not recorded in the Service Record of the petitioner and was not contemplated as a penalty the same could not have been considered at all while denying him the Selection Grade as the concerned officer had a good track record not only pertaining to the earlier years but also subsequent year too.
In the Oxford English Dictionary, the word "defer" meant "put to a later time", "postpone". Hence in my humble view since the Full Court deferred the issue on 21st September 2000, the administration failed in its duty to bring the issue again before the Full Court for its consideration in the changed circumstance. The affidavit filed by the administration through the Registrar (Judicial) is also not clear to me. The affidavit denied that such remark had no nexus with the granting to Selection Grade, Had it been so, then Full court should have been placed with the detailed enquiry report and the remark of the learned Zonal Judge or their consideration on the recommendation of the Administrative Committee allowing the Selection Grade to the petitioner on 26th July. 2000- Mr. Ghosh tried to contend that resolution of the Administrative Committee was subject to the approval of the Full Court the rejection of the representation was also circulated to the Hon''ble Judges and since no objection was raised by any of the learned Judges such rejection was approved by the Full Court through circulation. I am unable to accept such contention of Mr. Ghosh. The issue was for grant of Selection Grade to some of the officers. The same was recommended by the Administrative Committee. Once the issue was brought before the Full Court it must be dealt with by the Full Court alone so that the learned Judges could apply their mind in the changed circumstances. It is true that the grant or non-grant of Selection Grade does not warrant any reasons to be recorded. At the same time there must be materials on record to satisfy one''s conscience that it was rightly rejected. I am constrained to observe that the administration through the Registry of this Court failed in their duty to appraise the Hon''ble Judges of the Administrative Committee as well the entire Full Court the subsequent development. Had it been properly placed, it would have resulted in a different way. When there was no obligation to assign any reason it casts a great responsibility on the grantor so that justice is done to the right person in a right way. Similarly I am unable to accept the contention of the administration as contained in the affidavit to the extent that the writ petitioner was dealt with under the 2003 Rules. The relationship between an employer and employee ended on superannuation in 2001 when the 2003 Rules were not in contemplation. How could the writ petitioner be dealt with under 2003 Rules in 2001 is a proposition not intelligible to me. On seniority, the writ petitioner was superseded as his juniors got Selection Grade, some of his juniors ultimately became Judges of this Court. On merit, as 1 have observed earlier, there was nothing adverse against him which could deny him the relief in fact, in my humble view on perusal of the records, the petitioner was not yet denied the relief. His entitlement was deferred. The same is still pending for consideration at the Full Court level.
It would not be proper for me to dismiss his writ petition on the ground that he approached after his superannuation after attainment of 60 years. The petitioner prayed for Selection Grade as well as for consequential benefits. This is in the prerogative of the High Court Administration through the Full Court and the ultimate benefit is given by the State on the recommendation of the High Court. It would also not be proper for me to direct the administration or the State to extend such benefit to the petitioner. I only feel that he should have been dealt with properly and the Full Court must consider his case in the changed circumstances and after considering the observations made by me herein. I once again make it clear that any of my observations made herein must not create any impediment on the Full Court to decide the issue. I only direct the administration to place the issue of grant of Selection Grade on the basis of the resolution of the Administrative Committee on July 26, 2000 again before the Full Court along with all relevant service records as the Full Court deferred the issue on September 21, 2001.
On the issue of expunging of remark on perusal of the record it appears to me that since the same was not recorded in the Service Record of the petitioner there was no necessity for having it expunged as the same in my view would not have any bearing on the ultimate relief, which the petitioner asked in his writ petition. However, since I have directed the Administration to place the entire issue before the Full Court, his representation with regard to expunging of remark may also be placed before the Full Court for consideration.
The writ petition is disposed of accordingly without any order as to costs.
I, however, grant suo moto stay of operation of this judgement and order for a period of two weeks after long vacation. Urgent Xerox certified copy of this order, if applied for, may be available to the parties on priority basis.