Smt. Sandhya Das vs The Lt. Governor (Administrator) and Others

Ashim Kumar Banerjee, J.—On the issue of promotion in the post of Superintendent in District Judgeship, spate of litigations are being initiated and the issue is kept pending for about two years causing substantial hindrance to the smooth administration in the District Judgeship. One Smt. Sandhya Das and one Shri J. Sudharshanan are working as Stenographers under the District Judgeship. They were considered for promotion in the post of Office Superintendent in the year 2005. The then District & Sessions Judge formed a Departmental Promotion Committee (hereinafter referred to as DPC) consisting of the Chief Judicial Magistrate, Port Blair, Additional District Magistrate, Andaman and the Judicial Magistrate-1, Port Blair, as members. The DPC held a meeting and submitted a detailed reasoned report on September 14. 2005. whereby they unanimously recommended the name of Smt. Sandhya Das as Office Superintendent and Shri J. Sudharshanan for the post of Stenographer Grade-1. Pertinent to mention, both the posts attract identical scale of pay. Out of them, Sandhya was senior to Sudharshanan. The Annual Confidential Report, however, was in favour of Sudharshanan. Sudharshanan also worked as Office Superintendent on ad hoc basis. Sudharshanan also discharged duty of protocol in addition to his regular duties. The report of the DPC was. however, not accepted by the then District & Sessions Judge. He. in his office note dated September 26. 2005 recorded his note of dissent. According to him. the nature of duties to be performed by a Superintendent was much more than the duties to be performed in the post of Stenographer Grade-1. He was of the view that the Superintendent was also required to do outdoor duties even beyond office hours including protocol duties to receive Hon''ble Judges while visiting these Islands in Circuit as well as other judicial dignitaries from other High Courts and the Supreme Court visiting these Islands. According to the District & Sessions Judge, such function could not be discharged by Sandhya, and Sudharshanan was much more competent to discharge duties of a Superintendent for the purpose of smooth functioning of the Judgeship. The District & Sessions Judge ultimately remanded the matter back to the DPC for reconsideration by giving ad hoc promotion to Sandhya in the post of Stenographer Grade-1 and Sudharshanan in the post of Office Superintendent. Sandhya challenged such decision of the District & Sessions Judge by filing a writ petition being WP No. 189 of 2005. His Lordship rejected the contention of Sandhya to the extent that undue favour was shown by the District & Sessions Judge on the eve of his transfer to mainland. His Lordship directed the DPC to review the matter immediately and retained the order of the District & Sessions Judge giving ad hoc promotion. On a sum total, the learned Single Judge accepted the view of the District & Sessions Judge and affirmed his decision as contained in his note dated September 26. 2005.

In the meantime, the then District & Sessions Judge was transferred to the mainland and another Judicial Officer took charge in his place. By an office note dated 23/24th March. 2006 he referred the matter to the DPC in terms of the direction of the Hon''ble Single Judge. A meeting was held by the DPC on April 12. 2006. Ultimately, the DPC submitted their report dated May 5. 2006 inter alia reiterating their recommendation as contained in the first report. While doing so DPC considered each and every point raised in the Memo dated September 26, 2005 issued by the District & Sessions Judge. The DPC was of the view that since Sandhya was senior than Sudarshanan she should be given promotion in the post of Superintendent. The DPC refused to believe that the additional duties of a Superintendent, so highlighted by the District & Sessions Judge, could not be performed by Sandhya.

Before the second DPC met Sandhya preferred an appeal from the order of the learned Single Judge passed on March 07. 2006. The appeal was tiled on 20th March. 2006

The appeal came up for hearing before the Division Bench on June 19. 2006. The Division Bench observed that there was no reason to interfere with the order of the learned Single Judge as no right of the appellant had been affected by the said order While observing so, the Division Bench also recorded that no decision had been taken by the DPC. on review, and as such directed the DPC to take a decision in accordance with law keeping in view all the established rules and norms dealing with the points so raised by the District & Sessions Judge. The Division Bench was, however, not told that DPC had already reviewed their decision by their report dated May 9. 2006. None of the parties brought the said fact to the notice of the Division Bench.

A review petition was filed being RVW 111 of 2006.

Before the said review application was heard and disposed of by the Division Bench the District & Sessions Judge by order dated June 15. 2006 requested the DPC to follow the direction of the Hon''ble Court strictly considering the matter afresh "without being influenced by any office note". The said office note of the then District & Sessions Judge was placed in the meeting of DPC. Third DPC meeting was held on June 9. 2006. In the said DPC one of the members raised objection and contended that since as per the direction of the learned Single Judge so affirmed by the Division Bench they already reviewed their decision and submitted the report of the second DPC there was no occasion for holding a 3rd DPC. A clarification was sought from the District & Sessions Judge. The District & Sessions Judge by his note dated June 26 2006 forwarded the order of the Division Bench passed on June 19. 2006.

The 3rd DPC ultimately by their report dated July 11, 2006 changed their earlier decision and recommended promotion to Sudharshanan in the post of Office Superintendent. They observed that considering proper welfare of the Judgeship and smooth running of the Administration, Sudharshanan would be the fittest candidate for the post of Office Superintendent. Such decision was, however, not unanimous as the Additional District Magistrate did not agree to such decision and he stuck to the earlier decision of the DPC recommending Sandhya in the said post.

The said review application was heard by another Division Bench on July 31, 2006. The Division Bench was of the view that the report of the 2nd DPC was suppressed before the Division Bench and it was "suppression of material facts". The Division Bench observed that on the ground of suppression alone the order dated 19th June 2006 should be recalled.

The Division Bench after considering the report of the 3rd DPC recalled the order dated June 19. 2006 by allowing the review application meaning thereby the action taken by the DPC on the basis of the order of the learned Single Judge revived.

An application for recall was made on the ground that the Counsel of Sudharshanan was not heard by the Division Bench while passing the order dated 31st July 2006. By an order dated August 7, 2006 another Division Bench recalled the order dated July 31. 2006 and restored the review application being RVW 11 of 2006 for hearing afresh.

The review application being RVW 11 of 2006 appeared before another Division Bench on September 4. 2006 when the same was allowed to be withdrawn with opportunity to make proper application

The review applicant thereafter made an application being CAN OSS of 2006 for recall of the order dated September 4. 2006 on the ground that on that date the learned counsel was waiting for the matter to be called on when he had to leave the Court premises for an urgent work and he requested his colleagues to seek an adjournment from the Court. When the matter was called such prayer was however not made and the Division Bench passed the order dated September 4. 2006. The matter was mentioned before the same Division Bench. However, the Division Bench was not inclined to pass any order on the mentioning. Hence, the review applicant filed a formal application for recall of the order dated September 4. 2006 (wrongly stated as August 4. 2006).

CAN No. 088 of 2000 was heard by us on the above mentioned date.

From the sequence of events so narrated above, we express our deep concern not only on the subject issue being the sequence of events had in the District Judgeship but also the way the litigation was pursued before the High Court.

Under the CPC the application for review or recall is to be heard by the same Bench. However, because of the practical difficulty in this Circuit, such applications are being taken up by the available Circuit irrespective of the quorum. Taking advantage of the situation one after the other applications are being filed and the resultant effect is that on a single issue of promotion this Court is bogged down with a spate of litigations. The parties are determined not to allow finality to be arrived at on the subject controversy.

If we dismiss the application for recall the matter would not rest here, at least from the trend it appears so. If we allow the application. we have to hear the review filed by Sandhya where also we are in doubt as to how the issue could be finally resolved. From the tenor of the litigations it appears that the parties are adamant to prolong the controversy. We are unable to find out any logical reason behind this controversy. Both of them would enjoy identical scale of pay. We do not find any reason on which either of the parties could be aggrieved by not getting the post of Office Superintendent. Moreover, the said post obligates additional duties to be performed.

We are, however, embarrassed by the sequence of events so narrated above. We find that this long persisting controversy is hampering the functioning of the District Judgeship.

Recommendation of DPC is not binding upon the District & Sessions Judge. The District & Sessions Judge may take a decision one way or the other. If we remand the issue back to him with first and second DPC reports by quashing the third one despite consistent view of the DPC. the District & Sessions Judge would be free to take a decision. However, looking at the persistent problem, we are of the view that it would be an uphill task for the District & Sessions Judge to take a decision in this regard as this would create unnecessary animosity between the employees and it would be difficult for the District & Sessions Judge to carry on smooth administration in the near future. One thing is very clear to us that the subject controversy and the litigations thereof have vitiated the congenial atmosphere in District Judgeship. To end the controversy once for all we thus want to adopt an unusual procedure.

The High Court in its administrative side is in control of the administration of the Judgeship. Under Article 215 of the Constitution the control over the District Courts and the sub-ordinate courts vests in the High Court. High Court is duty hound to oversee the functioning of the subordinate courts. Hence we being a part of it. cannot avoid and/ or overlook such ill functioning and /or hindrance in smooth functioning.

The District & Sessions Judge. A & N islands is directed to send all records pertaining to the subject controversy including xerox copies of the respective ACRs to the Registrar General of this Court who upon perusal of all the records would take a decision in this regard and such decision of the Registrar General would be final and binding upon all the parties

The Registrar General would communicate his decision and forward the same along with all relevant records in a sealed cover to the Registrar of this Court stationed at Port Blair who would in turn forward the same to the District & Sessions Judge, A & N Islands. The District & Sessions Judge would issue necessary order of promotion and/or appointment in the post of Office Superintendent to the successful candidate accordingly.

Order dated September 4. 2006 is recalled. The judgment and order dated June 19, 2006 is modified accordingly.

CAN No. 088 of 2006 is disposed of accordingly.

RVW Oil of 2006 is also disposed of,

There will be no order as to costs. This disposes of all pending litigations, if any. on this controversy.

Dipankar Datta, J.

I agree.