The Hon''ble Chief Justice of The Calcutta Hich Court and Anr vs Pradyut Nath Bhaduri alias P.N. Bhaduri

Kalyan Jyoti Sengupta, J.

The Judgment of the Court was delivered by:

The above appeal has been preferred by the Hon''ble Chief Justice and the learned Registrar General of this court against judgment and order of the learned Single Judge dated 27th September, 2005 passed in the aforesaid writ petition. The fact leading to preferring this appeal is briefly stated hereunder:

The respondent, Pradyut Nathu Bhadury @ P.N. Bhaduri at the relevant point of time was a member of higher judicial service which he became after having been promoted from his initial appointment to the post of Munsif, the then one of the cadres of the West Bengal Civil Service (Judicial). As such, being member of the higher judicial service he was posted as District and Sessions Judge at Purulia and then he was appointed as a Judge of the City Civil Court on or about 13th May, 1999. In usual course of service he should have been granted selection grade post at Rs. 15, 100 - Rs. 400 - Rs. 18,300/- and this grade became due to him on or about 28th September, 2000. According to him, quite a few juniors to the respondent in the seniority list were given selection grade whereas for no reason, he has been denied. He claimed in his writ petition that he became eligible to the selection grade at least with effect from 1st May, 1998 on which date one Sri Dilip Kumar Basu who was immediately junior to him as per the seniority list was granted the said benefit. There has been no disciplinary proceedings at any point of time initiated against the respondent. Nor did he ever receive any adverse communication while he worked as a junior officer. Having found that his case has been denied he made a representation to the Hon''ble High Court being Memorandum No. 19 dated 11th December, 2000. In usual course he would have been considered for being granted benefit of super time scale of pay at least with effect from 1st May, 1999 on which date Mr. D.K. Basu was given the same benefit once again. On the 31st March, 2001 (a.n.) he retired from judicial service. However he was re-employed by the Government of West Bengal to fill up the post of President of the Consumer Dispute Redressal Forum at Coach Behar. Thereafter, he was transferred to Kolkata Consumer Dispute Redressal Forum, Unit-1, Kolkata in November, 2002. His name was ultimately omitted from the list of the beneficiaries of the said selection grade and he could not find any reason for exclusion. He apprehends that aforesaid omission might be remotely linked to the communication he received from the Hon''ble Court under Memorandum No. 939-R-INS(2) dated 27th January, 2001. In the said communication there was only a remark that Sri Bhaduri may be cautioned as he has not performed his judicial duties properly. There was some irregularities in recording the cause list of the cases but this is not normally prepared by the Judicial Officer but by the Bench Clerk. So he was not responsible for such alleged irregularities. Thereafter he made representation against the aforesaid adverse comment dated 31st March, 2001 for its expunging. The said representation to the best of his knowledge was not disposed of as nothing was communicated to him. According to him, adverse remarks cannot be treated to be a punishment so as to disentitle him to get any future benefit. It is urged by the petitioner that denial of benefit of selection grade followed by super time grade is punishment, and for which disciplinary proceeding was required to be initiated. In spite of the representation being made for the aforesaid purpose no action was taken by the Hon''ble High Court nor any decision was communicated. Therefore, he prayed in his writ petition for granting benefit of both the pay scales and also consequential relief. The said writ petition was contested by the Hon''ble Chief Justice. The learned Registrar Judicial Service filed affidavit on behalf of the appellants herein before the learned Trial Judge. In the affidavit reasons for denial of selection grade and super time pay scale has been divulged. It is stated that the respondent herein along with some other officers were considered for grant of selection grade in the meeting of the Administrative Committee held on 26th July, 2000 but ultimately consideration of the case of the petitioner for such benefit was deferred in the Full Court meeting held on 21st September, 2000. Subsequently, a list containing the names of the officers excluding Bhaduri, who were allowed to get benefit of the selection grade pay scale has been duly published by and under Notification dated 28th September, 2000. This omission was never challenged by the petitioner and thereby the petitioner accepted that the decision as correct and proper. It is urged on behalf of the appellant before the learned Trial Judge that seniority is not the criteria and/or basis for granting benefit for selection grade scale of pay. The same is granted essentially on the basis of merit-cum-seniority as grant of said super-time selection grade is nothing short of promotion. Subsequent representation of the petitioner was placed before the Administrative Committee and the Hon''ble Judges of the Administrative Committee in the meeting held on 21st May, 2001 rejected his representation, not granting selection grade. The said decision of the Administrative Committee was circulated amongst the Hon''ble Judges and having found no objection the said decision of the Administrative Committee is deemed to have been approved by circulation. Since the petitioner was warned in connection with his performance in the judicial work and such warning is treated as an adverse remark, the petitioner cannot get this.

Mr. Alok Kumar Ghosh, learned Counsel for the appellant, contends that the learned Trial Judge should have dismissed the writ application as there was no scope for taking any decision for selection grade and super time pay scale to the respondent. At first his case was considered on the 26th July, 2000 and the Administrative Committee took decision for granting selection grade but the said decision was subject to approval of the Full Court. Thereafter recommendation of the Administrative Committee was placed in the Full Court meeting for consideration on 21st September, 2000. The Full Court approved of granting selection grade to other officers, however, case of the respondent was deferred. This decision was circulated amongst the officers and no one challenged the said decision of deferring. According to him, deferment means and construed rejection when no decision was taken in favour of the respondent. However, this decision was expressly taken when his representation was subsequently considered by the Administrative Committee of the High Court in its meeting held on 4th May, 2001 by resolution of the Administrative Committee. In the representation he specifically asked for grant of selection grade as well as super time pay scale. This resolution was thereafter approved by the Full Court by way of a circulation. Therefore, earlier decision of deferring has been reconsidered by the Administrative Committee expressly and then Full Court by necessary implication and ultimately his case was rejected. The Administrative Committee after going through his service records and considering his performance had taken this decision. Therefore, there was no scope for taking any fresh decision by the Full Court. The learned Trial Judge ought not to have asked the High Court to take a fresh decision. He further contends that the judgment and findings of the learned Trial Judge is not supportable on another ground also for the learned Trial Judge on one hand has gone into the aspect of the eligibility of the applicant favourably considering his service records while on the other hand the learned Trial Judge has directed to take decision afresh on the eligibility of the applicant. As a matter of fact the learned Trial Judge observed that the applicant is entitled to get benefit. In other words, the learned Trial Judge has decided the matter on merit by himself. Now, as the respondent has retired from service the question of taking a fresh decision does not and cannot arise. In support of his contention he has relied on the decisions of the two Supreme Court judgments reported in Hindustan Petroleum Corpn. Ltd. v. Sunita Mehta and Ors., (2001) 9 SCC 344 and A.K. Bindal and Another Vs. Union of India (UOI) and Others, .

Mr. Bidyut Kiran Mukherjee, learned Senior Advocate appearing for the respondent, contends that the learned Trial Judge did not pass any order in favour of his client, His Lordship has merely requested Full Court to take a decision on the deferred issue. Hence, the appeal is not maintainable. He submits that the issue of grant of selection grade and super time pay scale of respondent has not been resolved lawfully by the. High Court. Admittedly, the Administrative Committee recommended his client''s case along with other officers for grant of selection grade and the same was placed in the Full Court meeting. The Full Court did not reject such recommendation nor approved expressly. But the issue was deferred. Perhaps there was some enquiry pending at that time so decision was not taken finally. In the enquiry no lapse nor misconduct of the t was found. After enquiry the Hon''ble Zonal Judge simply recorded warning and it was communicated to him, and he had made representation against such remarks and the said representation has not considered and disposed of as yet. In his service career there was no stigma nor there was any punishment recorded against him. The said warning was insignificant and it was not incorporated in the service book so as to disqualify him to get any service benefit. According to him, warning is not a punishment.

It is true that his representation was considered on 4th May, 2001 and such representation also relates to granting of selection grade. His contention is that aforesaid issue of selection grade should not have been placed before the Administrative Committee as it cannot take decision since the matter was pending for consideration before the Full Court. This decision of the Administrative Committee is absolutely illegal. The approval of the Full Court by way of circulation of the decision of the Administrative Committee dated 4th May, 2001 is also improper if not illegal as this was not placed in the Full Court formally. It was not brought to the attention of the Administrative Committee. The issue of grant of selection grade of his client is kept pending for the decision by the Full Court and the Full Court alone. He contends that it is absurd to suggest the term ''deferred'' by any means be construed as rejection. According to him, the word ''defer'' means postponement and there is no decision in either way. Next he contends that though the Service Rule 2003 has got retrospective operation it cannot be made applicable to his client''s case as his decision ought to have been taken in the year 2000 when the said Rule has not seen the light of the day. He then contends that the learned Trial Judge ought to have granted full relief for nothing adverse was found on consideration of his service records, to refuse grant of selection grade or super-time pay scale. He urges that this Court should grant relief in exercise of its power under Order 41 Rule 33 of the CPC apart from dismissing the appeal.

We have heard arguments of Mr. Ghosh and Mr. Mukherjee appearing for the appellant and the respondent respectively and we have gone through the papers before us carefully. After having considered everything we think that in this appeal following points are involved for the decision:

(1) Whether the learned Trial Judge was right in hearing the writ petition on merit as it was filed long after his retirement;

(2) Whether the writ petitioner/respondent is entitled to relief granted by the learned Trial Judge without challenging decision of the Full Court deferring his case for grant of Selection Grade on 21st September, 2000 and again the decision of the Administrative Committee on 4th May, 2001 as approved by the Full Court by Circular on 16th May, 2001. (3) Whether the learned Trial Judge was justified in observing and finding on the issues in favour of the respondent writ petitioner on one hand, and directing the High Court Administration to place the matter before the Full Court for reconsideration on the other.

Mr. Ghosh argues that after a long period of three years from the date of retirement the employee and employer relationship between the writ petitioner and the High Court Administration qua State Government has come to an end, as such, he cannot claim for any relief in connection with the service rendered earlier. We are of the view, in ordinary circumstances, this proposition of law would have been applicable as it has been held by the Apex Court in the decision reported in A.K. Bindal and Another Vs. Union of India (UOI) and Others, . Applicability of proposition of law is always variable depending upon each and every individual case. It has to be examined whether cause of action is continuing and further claim made by the petitioner has got any link therewith even after his retirement, and then whether such claim has been lawfully and rightly rejected by the Administration during his service period. In the Supreme Court case (supra) cited by Mr. Ghosh concerns with refusal to grant of revision of pay scale. Such refusal was never challenged during his service period and therefore, after retirement this claim was held not to be entertainable in view of severance of master and servant relationship.

If we go by the statement and averment of the writ petition the petitioner''s (respondent before us) grievance is that despite having all qualifications and eligibility as per norms then prevailing he should have got selection grade as a matter of course as other officers who were far junior to him were granted such benefit. In the writ petition there of course is no mention about the recommendation of the Administrative Committee for granting Selection Grade. Why such Selection Grade was not granted to him has been explained in the affidavit-in-opposition. Therefore, from the facts stated in the writ petition as well as affidavit-in-opposition it will emerge that the Administrative Committee in its meeting held on 26th July, 2000 recommended for granting Selection Grade along with other officers. Thereafter the said proposal of the Administrative Committee was placed for approval before the Full Court. On 21st September, 2000, however, decision on applicant''s case for granting Selection Grade as per recommendation of the Administrative Committee was deferred by the Full Court. It further appears from the affidavit-in-opposition that this decision of deferment by the Full Court was not communicated to the petitioner individually but in the Official Gazette the names of the grantee officials were published and therefore by necessary implication he was denied. Apparently, the writ petitioner approached this Court after three years from the date of retirement and almost four years from the said decision of non-inclusion of his name in the list of the eligible officers. This point was raised at the ad interim stage before the learned Single Judge of this Court. On 30th June, 2004 the aforesaid decision on the preliminary point of delay was decided by the learned Single Judge holding that the writ petitioner should be heard on merit after completion of affidavits. The order for hearing the matter on merit overlooking the question of delay was never appealed against, as such this point is hit by the principle of res judicata as it is well-settled now by this time, any issue decided at the interlocutory stage operates as a res judicata at the subsequent stage of the same proceedings. In this connection a decision of the Supreme Court reported in AIR 1977 SC 392 be referred to and it is also settled by the Apex Court. Section 11 of the CPC applies to writ jurisdiction. ( Daryao and Others Vs. The State of U.P. and Others, So Mr. Ghosh''s contention on the first point of delay is bound to fail. Therefore, the learned Trial Judge finally has rightly held that this point does not deserve any consideration. On the question of non-challenge of the decision of the Full Court regarding deferment we are not impressed with the submission that the word ''deferment'' means rejection. The interpretation given by the learned Trial Judge, in our view, is the only interpretation which one can do. Admittedly, the Administrative Committee had recommended the writ petitioner respondent for considering grant of Selection Grade. The Full Court, indisputably being final authority, however, did not take any decision for the reasons which are not disclosed. It appears from the resolution dated 21st September, 2000 the Full Court formally discussed the issue and decided to defer the case of the writ petitioner/respondent without any decision being taken in either way. It was open for the Full Court to reject such recommendation rather expressly. Therefore, it is incorrect to contend that ''defer'' means ''rejection''. It is further contended that since the writ petitioner''s name was not included in the list of the officers who were granted Selection Grade, it amounts to rejection, hence it was an actionable cause. We are of the view that when no decision has been taken it is neither creation nor negation of right. The writ petitioner, thus, had no occasion nor reason to challenge as until and unless the decision is taken negatively the question of challenge does not and cannot arise. Non-inclusion of the name does not always automatically imply the decision of rejection and in this case we feel it is not so. It is the High Court administration which is to take decision within a reasonable time in either way on a deferred subject. It is contended by Mr. Ghosh further that subsequent decision of the Administrative Committee dated 4th May, 2001 followed by approval of the Full Court upon circulation on this issue is a final order and nothing remains to take decision. The learned Trial Judge has dealt with this contention. Having considered the views taken by the learned Trial Judge, we think that His Lordship has taken a correct decision in substance. We wish to add in this connection that the issue of grant of Selection Grade to the writ petitioner respondent was kept pending for the decision by the Full Court, and it ought not to have been placed before the Administrative Committee once again. The Registry should have pointed out to the Hon''ble Judges of the Administrative Committee that the issue of grant of Selection Grade as mentioned in the representation of the writ petitioner respondent has been kept pending and the same is one of the postponed agenda. Had this information been supplied to the Hon''ble Judges of the Administrative Committee the Administrative Committee would not have taken a fresh decision negatively. It is true that the decision of the Administrative Committee was deemed to have been approved by the Full Court by circulation, but we think it is not the decision of the Full Court in true sense, rather approval of decision. In our opinion taking decision by Full Court upon its own on discussion and application of mind is one thing and approval of decision of some other authority is another thing. It is trite that if the law requires a thing is to be done in one manner this has to be done in that manner and that manner alone or not at all. It is significant that the decision of the Administrative Committee on 4th May, 2001 had not recalled earlier decision of recommendation in favour of the writ petitioner/respondent and it seems to us that this decision was taken in ignorance of the earlier decision of the Administrative Committee which was kept pending for approval of the Full Court.

Therefore, the resolution of the Administrative Committee followed by the approval on 16th May, 2001 was never communicated to the writ petitioner though the petitioner went on making representations. It is also found from the records that the petitioner had made representation for expunging adverse remarks which was communicated. The same is yet to be considered by the High Court Administration. We are unable to accept the contention of Mr. Ghosh that since he has retired there is no occasion to consider his representation for expunging the remarks. According to us, adverse remarks communicated to him mayor may not have any impact in the matter of grant of Selection Grade. The grant of Selection Grade in its turn has got direct implication for grant of super time pay scale and consequently it has got implication regarding fixation of pension and retirement benefit as his pay scale would automatically stand increased. Hence, he has continuing justiciable right and such right cannot be said to be barred under any circumstances. Therefore, from the discussion narrated above it is thus clear that there has been no lawful decision on the question of grant of Selection Grade. It is further contended that grant of Selection Grade is not a matter of course as per Rule, 2003 which depends upon the performance of the officers concerned. We think that this argument has no force at present as no lawful decision has been taken by the Full Court whether it should be granted or not.

However, we accept the submission of Mr. Ghosh that the learned Trial Judge ought not to have made any observation or decided the eligibility of the writ petitioner on this issue, as we find the learned Judge indeed has decided the issue in favour of the writ petitioner, but desisted himself from granting relief to the writ petitioner. The learned Trial Judge instead has referred the entire matter to the Full Court. We are of the view when there has been no decision in either way by the Full Court, the learned Trial Judge, with respect, ought not to have by necessary implication, observed or decided the issue by himself that the petitioner/respondent is entitled to get Selection Grade. It is strenuously argued by Mr. Bidyut Kiran Mukherjee, learned Senior Advocate, that this Court can grant relief as prayed for based on the findings of the learned Trial Judge. We are of the view that his client has not filed any cross objection nor preferred separate appeal against the same judgment and order and his client is satisfied with the relief granted by the learned Trial Judge. It is true the provision under XLI Rule 33 of CPC which is applicable by virtue of Rule 53 of the Writ Rules framed by this Court, empowers this Court to grant relief to the respondent irrespective of any cross objection being filed. The aforesaid provision is not applicable in all cases. We are of the view that this power of Appellate Court is an extraordinary one. It is exercised in exceptional circumstances. A full Bench of this Court in case of Bimala Devi vs. Aghore Chandra Mallick & Ors., reported in 78 Calcutta Weekly Notes 1045 had the occasion to analyse the scope and purport of the same. In paragraph 28 of the report Their Lordships following decision of the Apex Court in case of Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others, explained amongst other:

" It is clear, therefore, that the Court''s power under Rule 33 of Order 41 is an extremely limited one and it cannot be used m ordinary circumstances or as a matter of course. Only when the Court is satisfied that but for the use of this power a gross injustice would be done then the Court can take recourse to it.

A power to be exercised in extraordinary or exceptional circumstances cannot, in our opinion, be described to be a remedy available to a litigant before the Appellate Court."

Above statement of law laid down with high authority is complete guidance in this case as we don''t see in this case gross injustice would be done to the respondent if his desired relief is not considered or for that matter he has no remedy unless it is considered. Here there has been no decision in either way and this Court cannot usurp the power of the Full Court in its judicial side. Hence, the appeal is partly allowed to the extent of expunging observation and findings of the learned Trial Judge regarding eligibility of the writ petitioner respondent. However, we affirm the ordering portion of the learned Trial Judge that the matter should be placed before the Full Court. From the record it appears that the representation dated 30.3.2001 filed by Shri Bhadury praying for expunging the remarks of caution remains unattended. So we direct the Registry to place the writ petitioner''s representation for expunging the remark before the Administrative Committee on the first available opportunity. Thereafter the issue of grant of selection grade shall also be placed before the Full Court at earliest possible opportunity. Whether Rule 2003 which has got retrospective effect, should be applied or not is also to be decided by the Full Court itself because it is an old issue of the year 2000 and on that date when Full Court deferred this cause, factually the said Rule was not even in contemplation. There will be no order as to costs.

Operative portion of the judgment and order be made available to the parties.

Prasenjit MandaI, J.