Manoj Halder v. The Andaman And Nicobar Administration And ORS

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE AMRITA SINHA WPA/575/2024 MANOJ HALDER ... PETITIONERS VS.

ANDAMAN AND NICOBAR ADMINISTRATION AND OTHERS ... RESPONDENTS For the petitioners : Mr. Gopala Binnu Kumar For the respondent nos.1-3 : Mr. Shatadru Chakraborty, Sr. Adv Mr. Rakesh Kumar Mr. Dibesh Dwivedi For the respondent No. 4 : Ms. Anjili Nag, Sr. Adv Mr. Adarsh Illango Heard on : December 11, 2024 Judgment on : December 16, 2024 AMRITA SINHA, J.

The challenge - 1.

The contents of the communication dated 10th October, 2024 by the Assistant Secretary (Perl.), Andaman and Nicobar

Administration intimating the Registrar of the High Court of Calcutta, Circuit Bench at Port Blair about the rejection of the case of the petitioner for issuance of No Objection/Clearance Certificate for absorption of the petitioner in the establishment of the Circuit Bench of High Court, Calcutta at Port Blair is challenged in the instant writ petition.

Grounds of rejection - 2.

The grounds ascribed for rejection are:

(i) That the petitioner is posted on diverted capacity in the Circuit Bench and not on deputation;

(ii) The Andaman and Nicobar Administration is facing acute shortage of staff in the stenography cadre. Facts of the case - 3.

The petitioner participated in the selection process for appointment in the post of Peon in the Andaman and Nicobar Administration and he was appointed on 22nd January, 2014 as Multi Taking Staff. Thereafter he participated in the recruitment process for appointment in the post of Stenographer Gr-II and on being selected was appointed to the said post on 27th October, 2016 under the Andaman and Nicobar Command. In 2017 he participated in the selection process for appointment in the post of Stenographer

(OG) under the Andaman and Nicobar Administration and became successful.

4.

On appointment as Stenographer (OG), the past service of the petitioner as Multi Tasking Staff under the Administration and as Stenographer Gr-II under the Andaman and Nicobar Command was counted for his service benefits.

5.

The petitioner joined duty in the Administration on 01st February, 2018 and vide order dated 09th February, 2018 he was deputed to the office of the Learned Registrar, Circuit Bench of the High Court at Port Blair and since then he is discharging his duties and responsibilities as PA/Stenographer of the Hon'ble Judges of this Court efficiently, diligently and honestly upto the satisfaction of the Hon'ble Court.

6.

While performing his duties as PA/Stenographer the petitioner was entrusted with additional duty of the Assistant Court Officer or the Assistant Registrar (Court) when the said officers were on leave. The Registrar, Circuit Bench vide office order dated 18th July, 2022 directed the petitioner to look after the duties of the Assistant Court Officer in addition to his own duties in Court No. 1 until further order.

7.

In January, 2022 the petitioner made a request before the Hon'ble Court for absorbing him in the vacant post of Stenographer/PA in the establishment of the Circuit Bench at Port Blair. The prayer of the petitioner seeking absorption was considered by the Hon'ble Chief Justice of the High Court and vide communication dated 05th November, 2022 the petitioner was informed that the Hon'ble Chief Justice was pleased to direct that the prayer of the petitioner may be considered after completion of the recruitment process, if vacancy position then permits. 8.

As the post of PA/Stenographer in the Circuit Bench remained vacant, the petitioner renewed his prayer for absorption in January, 2024. His prayer was again considered and approved by the Hon'ble Chief Justice in February, 2024 on condition that the petitioner shall obtain No Objection /Clearance Certificate from the Andaman and Nicobar Administration.

9.

On approval of his prayer for absorption a formal communication was made by the Registrar of the Circuit Bench to the Secretary (Perl) of the Administration in March, 2024 with request to issue the No Objection /Clearance Certificate. The Assistant Secretary (Perl) vide a communication dated 28th March, 2024 informed the Registrar of the Circuit Bench that the

sanctioned strength of the post of Stenographer (OG) in the Andaman and Nicobar Administration is fifty seven, out of which twenty four posts were filled up and thirty three posts are vacant. There is acute shortage of Stenographer (OG) in the Administration. 10.

The Administration has initiated recruitment process to fill up the vacancies in the year 2023 but only five candidates were found eligible for selection to the said post. Fresh recruitment process to fill up the vacant posts along with other vacant posts will be initiated this year after the Model Code of Conduct is lifted. It was difficult to accept the prayer for issuance of No Objection /Clearance Certificate at that juncture; however, the Administration did not have any objection to continue the service of the petitioner in diverted capacity of the Hon'ble Circuit Bench from the strength of the Secretariate establishment.

11.

The communication further mentioned that the vacancy position in the post of Stenographer in the Hon'ble Circuit Bench, if desired, may be informed to the Recruitment and Examination Cell of the Administration for publication of vacancy notice along with vacancy notice of the Administration, whenever made in future. 12.

In April, 2024 the difficulty on the part of the Administration to issue No Objection /Clearance Certificate in favour of the

petitioner was communicated by the Registrar of this Circuit Bench to the Registrar General of the High Court at Calcutta. The same was placed before the Hon'ble Chief Justice and the Hon'ble Chief Justice reiterated the request made earlier for a favourable decision with a rider that the same will not be treated as a precedent. 13.

The aforesaid request of the Hon'ble Chief Justice was communicated to the Administration and vide the impugned communication dated 10th October, 2024 the request of the Hon'ble Chief Justice has been turned down.

14.

The petitioner is aggrieved by the same.

Submission of the petitioner - 15.

It has been submitted that the petitioner has practically not served the Administration at all.

He joined duty in the Administration on 01st February, 2018 and on and from 09th February, 2018 he is continuously and uninterruptedly serving in the High Court.

16.

The initial order of the Administration by the Deputy Secretary (Perl.) dated 09th February, 2018 clearly mentioned that the petitioner was deputed to the office of the Registrar of the Hon'ble High Court and the said order of deputation was issued with the

approval of the competent authority. After deputing the petitioner to work under the High Court since February, 2018 till date, the authority cannot take the stand that the petitioner was not on deputation but is working on diverted capacity. 17.

The ground of shortage of staff in the Administration is required to be addressed by the Administration and steps ought to be taken for filling up of the vacancies. As the service of the petitioner was never enjoyed by the Administration, request for issuance of No Objection /Clearance Certificate for releasing him from the Administration so that he can be absorbed in the High Court ought to have been allowed.

18.

Learned advocate for the petitioner has placed reliance on the communication made by the Registrar of the Circuit Bench to the Chief Secretary in July, 2024 which is annexed to the affidavit-inopposition filed by the Administration. It has been pointed out that two posts of Stenographer/PA in the Registry of the High Court are lying vacant and the petitioner is working as Stenographer/PA to the entire satisfaction of the Hon'ble Judges holding Circuit and there is no complaint against him from any corner. On several occasions he also performed the duties of the higher post of Assistant Court Officer without any extra remuneration. The experience gained by

the petitioner during his service tenure in the High Court has made him suitable for absorption in the vacant post and his absorption will facilitate smooth running of the Registry. The same will also save the Registry to undertake the exercise of selecting a new incumbent.

Prayer of the petitioner - 19.

Prayer has been made to set aside the ground of rejection put forth by the Administration with a further direction upon the Administration to issue No Objection /Clearance Certificate to the petitioner to enable him to be absorbed in the post of PA/Stenographer in the Circuit Bench of the High Court. Submission of the respondent Administration - 20.

The prayer of the petitioner has been opposed by the Administration. It has been submitted that on an earlier occasion a similar prayer in respect of two separate employees was allowed by the Administration and on attaining superannuation of the employees their pensionary benefit in respect of their past service under the Administration was not released by the Registry of the High Court for which a writ petition was filed by the retired employees. It has been submitted that in order to reduce litigation issuance of cadre clearance of the petitioner or permanent

absorption could not be issued as he was not found at par with the extant rules/guidelines issued by the Government of India even though he was deputed in the office of the Registry of the High Court for functional requirement.

21.

It has been submitted that absorption of one Shri Alok Kumar Bakshi was allowed earlier based on the circumstances prevailing at the relevant point of time in the interest of the High Court and the same may not be treated as a Rule.

22.

Submission is that there is acute shortage of Stenographer (OG) in the Administration and as such the No Objection /Clearance Certificate for permanent absorption of the petitioner in the establishment of the Hon'ble High Court cannot be given. 23.

Prayer has been made to dismiss the writ petition. Submission of the respondent no.4 - Registrar, Circuit Bench, Calcutta High Court.

24.

Learned senior advocate representing the High Court Administration submits that the service of the petitioner is very much required for the day to day smooth functioning of the Court proceeding. The absorption of the petitioner in the High Court cadre will not be treated as a precedent.

25.

I have heard and considered the submissions made on behalf of both the parties and have perused the materials on record. Deliberation by the Court - 26.

It appears from records that on appointment of the petitioner in the Administration he reported for duty on 01st February, 2018 after obtaining clearance from his earlier employer i.e the Andaman and Nicobar Command. Immediately, thereafter the petitioner was deputed by the Administration to discharge duties in the Registry of the High Court. On and from 09th February, 2018 the service of the petitioner has been utilized by the High Court. The petitioner hardly had an occasion to serve the Administration.

27.

The main ground cited for rejecting issuance of No Objection /Clearance Certificate in favour of the petitioner is acute shortage of stenographer in the Administration. As the Administration never enjoyed the service of the petitioner, accordingly, his absence in the Administration ought not to be felt. Irrespective of the fact whether No Objection /Clearance Certificate is issued or not, the shortage of stenographer will remain because the Administration is not getting the service from the petitioner.

28.

It is only when an employee who is usually present on duty, remains absent therefrom, that his absence gets noted. The absence

of a person who never remained present in the office, does not make any difference at all. As such, the said ground for rejecting issuance of No Objection /Clearance Certificate in favour of the petitioner cannot be said to be a good and a valid ground and is liable to be set aside.

29.

The next ground of rejection is that the petitioner is serving on diverted capacity and not on deputation. The initial order by the Administration issued in favour of the petitioner on 09th February, 2018 clearly mentions that he is deputed in the office of the Registrar of Hon'ble High Court of Calcutta, Circuit Bench at Port Blair. The subsequent order dated 04th December, 2018 also clearly mention that the petitioner was deputed to the office of the Registrar and the following order dated 24th July, 2019 mentions that in continuation of the Administration's order dated 04th December, 2018 the competent authority of the Administration was pleased to order that the petitioner may continue with the office of the Registrar of High Court till further order.

30.

All the aforesaid communications clearly record that the petitioner was deputed by the Administration for duty in the office of the Registrar, High Court with approval of the competent authority. In none of the communications pursuant to which the service of the

petitioner is utilized by the High Court mention that the petitioner is serving on diverted capacity. On the face of records, the said ground of rejection appears to be incorrect, cannot be substantiated and is liable to be set aside.

31.

In the affidavit-in-opposition the Administration has annexed the communication made by the Registrar, Circuit Bench of Calcutta High Court dated 31st July, 2024 wherein it has been clearly indicated that the service rendered by the petitioner to the Registry and also to the Hon'ble Judges of this Court is highly satisfactory and with passage of time the petitioner has gained enough experience making him a suitable candidate for being appointed in the post of Stenographer/PA.

32.

The letter of the Registrar also clearly mentions that two posts of Stenographer/PA in the High Court are vacant and none has joined duty. At the same time the petitioner has not only performed the duty in respect of his post but has also efficiently handled the duties of his superior post without any extra remuneration. The petitioner performs his duty with responsibility and his absorption in the cadre of the High Court will facilitate smooth functioning of the High Court.

33.

The recommendation of the Hon'ble Chief Justice for absorbing the petitioner in the service of the High Court on two occasions make its evident that the service of the petitioner has become indispensable for the proper functioning of the Court. The Hon'ble Chief Justice has also mentioned that such absorption will not be treated as a precedent.

34.

In the affidavit-in-opposition there is a reference of absorption of one Shri Alok Kumar Bakshi in the establishment of the High Court. It has been mentioned that the same was done based on the circumstances prevailing at that relevant point of time and the same was in the interest of the Court and it should not be treated as a rule. In the instant case also, circumstance is such that the service of the petitioner is highly essential for the smooth running of the High Court Administration and the Hon'ble Chief Justice has observed that the same will not be treated as precedent. In such a situation, the Administration ought to have favourably considered the request of the Registrar, Circuit Bench and ought to have issued the No Objection /Clearance Certificate in favour of the petitioner. 35.

In the affidavit-in-opposition reference has been made to the appointment of Shri G. G. Nedunchezian and Shri Stephen who were initially in service of the Administration and subsequently posted in

the High Court Administration in view of the functional requirement. As per their willingness they were absorbed under the High Court establishment but there were issues with regard to their pensionary benefit after retirement.

36.

It has been pointed out by the learned advocate representing the petitioner that the aforesaid Shri Stephen is still in service of the High Court Administration and, as such, the fact of his retirement, as mentioned in the opposition, is incorrect. It is seen that the aforesaid Shri Stephen is still serving as Assistant Registrar (Court) in the High Court Administration. The issue of pensionary benefit of the aforesaid Shri G. Nedunchezian has already been resolved at the end of the High Court Administration.

37.

On the apprehension that a dispute may arise after the retirement of the petitioner if he is absorbed in service by the High Court Administration after issuance of No Objection /Clearance Certificate, the prayer for issuance of No Objection /Clearance Certificate ought not to be rejected. The petitioner is currently aged about 36 years and if the service records of the petitioner are maintained properly by the employer, then there cannot be any issue with regard to release of pensionary benefit after his superannuation.

38.

In the communication dated 28th March, 2024, the Assistant Secretary (Perl.) has mentioned that there are thirty-three vacant posts of Stenographer (OG) in the Administration. It is for the Administration to take steps for filling up the said vacancies. The authority ought not to hold back the No Objection /Clearance Certificate of an employee whose service is being utilized by the borrowing authority and the borrowing authority intends to absorb the said employee in its own cadre for smooth functioning of the Administration of the borrowing authority.

39.

The Administration ought to appreciate that providing infrastructural support to the judiciary is the duty and responsibility of the Administration. The Administration ought not to stand in the way of smooth functioning of the judiciary as the same may amount to interference with the judicial system in proper dispensation of justice.

40.

At the time of argument a point has been raised by the respondents that the writ petition is not maintainable and the petitioner ought to have approached the Central Administrative Tribunal for relief. The said submission of the respondents cannot be accepted in view of the fact that the petitioner is currently serving on deputation in the Circuit Bench of Calcutta High Court and the

request and the proposal of the Hon'ble Chief Justice forwarded through the Registrar of the Circuit Bench for issuance of no objection/clearance certificate has been turned down by the Administration. The High Court Administration is more interested in absorbing the petitioner in the High Court cadre considering the quality of service rendered by him. The employee himself never approached the Administration directly and there was no scope on the part of the Administration to refuse his prayer. 41.

Had there been genuine ground(s) to reject the proposal of the Registrar of the High Court then the thing would have been otherwise. Here, it appears that the request by the Registrar, High Court has been turned down citing frivolous reasons not tenable either on facts or on law.

42.

In view of the discussions made herein above, the Court is of the considered opinion that the grounds cited by the Administration rejecting issuance of No Objection /Clearance Certificate in favour of the petitioner is liable to be set aside and is, accordingly, set aside. 43.

The Administration is directed to issue No Objection/Clearance Certificate in favour of the petitioner at the earliest but positively within a fortnight from date. It is made clear that the same will not be treated as precedent.

44.

The writ petition stands disposed of.

45.

No order as to costs.

46.

Urgent certified photocopy of this judgment, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities.

( Amrita Sinha, J. )