Post Of Stenographer, Bench Clerk Are Sensitive For District Judiciary; Engaging Them On Contractual Basis Will Create Difficulties: Calcutta HC

While taking the most right step in the right direction at the right time in a realistic manner, the Calcutta High Court in a most learned, laudable, landmark, logical and latest judgment titled West Bengal Courts’ Employees’ Association Vs The State of West Bengal & Ors in WPA 16317 of 2024 while exercising its constitutional writ jurisdiction on the appellate side that was pronounced as recently as on July 31, 2024 directed the State to not proceed with recruitment notifications that were issued to recruit stenographers and bench clerks of the District Judiciary on a contractual basis while observing that such posts are sensitive for the smooth functioning of the District Judiciary and engagement on contractual basis will create difficulties. We see that the Single Judge Bench comprising of Hon’ble Mr Justice Arindam Mukherjee stayed two recruitment notifications that sought to contractually appoint stenographers and bench clerks to the North and South 24 Parganas judgeship. We need to note that the Court held so while observing that any person engaged on a contractual basis cannot be fastened with any responsibility or liability like a regular employee for any misconduct and so batted most strongly for regular employees.

At the very outset, this remarkable, robust, rational and recent judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Arindam Mukherjee of Calcutta High Court sets the ball in motion by first and foremost putting forth in the opening para that, “This writ petition has been filed on 24th June, 2024 wherein West Bengal Courts’ Employees’ Association and its General Secretary along with one of its authorized representative while representing the interest of the employees have challenged two recruitment notifications respectively dated 28th February, 2024 and 14th March, 2024. The recruitment notification dated 28th February, 2024 in respect of engagement of staff in Fast Track Courts and Family Court in the District Judgeship of North 24-Parganas while that dated 14th March, 2024 is for recruitment in the Fast Track Courts under the Judgeship of South 24-Parganas. The recruitment process under both the notifications is for engagement of persons purely on contractual basis initially for a period of one year with the option to renew. The vacancies to be filled in on contractual basis as declared in the notification dated 28th February, 2024 are for English Steno-Typist, Bench Clerk (Peshkar), Bailiff, Peon and Karmabandhu. The vacancies to be filled in on contractual basis as declared in the notification dated 14th March, 2024 are for English Steno-Typist, Bench Clerk (Peshkar) and Peon.”

As we see, the Bench discloses in the next para that, “On behalf of the petitioners, it is submitted that in view of the provisions of the West Bengal District Court (Constitution of Service, Recruitment, Appointment, Probation and Discipline of Employees) Rules, 2015 (hereinafter referred to as the 2015 Rules) there is no provision for engagement of persons on contractual basis for the declared vacancies. Referring to the provisions of Chapter-III & Schedule D of the said Rule, it is submitted by the petitioners that there is no post termed as “English Steno-Typist” sanctioned under the said Rules. The sanctioned posts are Stenographer Grade-I, Stenographer GradeII and Stenographer Grade-III. The cadre of Stenographer Grade-I is to be filled up entirely by way of promotion from the feeder post that is Stenographer Grade-II. In Stenographer Grade-II there is a provision for recruiting 25% by direct recruitment, the balance 75% is required to be filled up by promotion from the post of Stenographer Grade-III. In the cadre of Stenographer Grade-III, recruitment takes place from two sources, 60% through direct recruitment while 40% by promotion from the cadre of Lower Division Clerks/Typists (erstwhile)/Typist Copyist (erstwhile) having qualification equivalent to those of direct recruitment as Stenographer Grade-III. The petitioners say that there as such no provision for filling up any of the posts of Stenographers Grade-I, Stenographers Grade-II and Stenographers Grade-III by contractual engagement.”

Needless to say, the Bench states in the next para that, “That apart and in any event there being no sanctioned post of English Steno-Typist, no recruitment to such post can be made by the two employment notifications.”

As it turned out, the Bench enunciates in the next para that, “The petitioners then refer to Part-I, Part-II and Part III of Schedule-B to the said Rules which provide for appointment of Bench Clerk Grade-I, Bench Clerk, Grade-II and Bench Clerk Grade-III. In case of Bench Clerk, Grade-I, Bench Clerk, Grade-II and Bench Clerk, Grade-III, the posts are to be filled up by promotion as per the said Rules. There is as such, according to the petitioners, no scope of engaging any contractual person to fill up any vacancy arising in respect of such posts.”

Truth be told, the Bench lays bare in next para that, “The two notifications provide for engagement of Bench Clerk (Peshkar). There is no post sanctioned in accordance with the said Rules as Bench Clerk (Peshkar). Thus, the petitioners contend that no contractual engagement can also be made as Bench Clerk (Peshkar).”

Do note, the Bench notes that, “On behalf of respondent nos. 3 and 4, it is submitted that none of them have any role to play in the subject recruitment process. It is further submitted that on 14th February, 2024 a meeting of a Committee to suggest measures for implementation of the recommendations of Justice Shetty Commission in the District Judiciary of West Bengal comprising of three Hon’ble Judges of this Court on the Administrative Side was held on 5th February, 2024 to decide the formulation of Schedule – ‘F’ as mentioned in Rule 11 of the said Rules. In the said meeting, it was decided that a draft Schedule – ‘F’ should be prepared and placed before the committee by the Judicial Department, Government of West Bengal. The draft has been submitted on 19th April, 2024 and is awaited approval. Thus, at the present there is no schedule – ‘F’ to the said Rules though Rule 11 specifies for the same.”

It is worth noting that the Bench then notes in the next para that, “Responding to the submissions made by the respondents the petitioners say that apart from the illegality sought to be perpetrated by engaging contractual employees against the regular sanctioned post without holding regular recruitment process the respondents by way of contractual engagement are trying to scuttle the promotional avenues of the regular employees. Even if the regular recruitment process could not be held there was no embargo in promoting the persons from the feeder post to the next promotional post in order to meet the immediate crisis instead of engaging contractual employees. It is also not clear whether the vacancies to be filled are against vacant regular post or such recruitment are outside the regular vacant post. If the vacancies are outside the regular vacant post, then supernumerary posts are to be created. There is no circular or process initiated to create such supernumerary posts. In absence of such stipulation, it is to be presumed that the vacancies sought to be filled up by the contractual engagement are against regular post. This will amount to depriving the regular employees from being considered for promotion despite having the requisite qualification, experience for being considered for the promotion in accordance with the said rules.”

Quite forthrightly, the Bench propounds in the next para that, “After hearing the parties and considering the materials-on-record I find substance in the submissions made by the petitioners. The State of West Bengal in view of the recommendations made by the Justice Shetty Commission which has been duly accepted and in view of the directions given by the Hon’ble Supreme Court of India is duty bound to provide infrastructural support to the District Judiciary for its smooth functioning. Infrastructural support includes providing employees and staff to assist in the functioning of the District Judiciary.”

Most significantly and so also most forthrightly, the Bench laments in the next para of this notable judgment postulating that, “It is a matter of anguish that the recruitment process for recruiting regular employees against the sanctioned post lying vacant has not been conducted for years together despite assurances given by the State. The engagement of contractual employees, that too few in numbers, will not change the situation to any great extent. The smooth functioning of the District Judiciary in absence of regular staff and employees is likely to suffer and cannot be either cured or supplemented by contractual engagements. The State Government cannot remain a spectator and make contractual appointments with the plea to improve the situation in a continuous manner without conducting the regular recruitment process. Moreover, it appears that against contractual appointment, a huge sum has been spent in the judgeship of 24-Parganas (North). The two employment notifications, in the instant case, are clearly de hors the 2015 Rules, the background for framing of which is also explicit from the said rules. That apart and in any event the post of ‘Stenographer’, ‘Bench Clerk (Peshkar)’ are very sensitive post for the smooth functioning of the District Judiciary. Any person engaged on contractual basis cannot be fastened with any responsibility or liability like a regular employee for any misconduct. Engagement on contractual basis in such sensitive post are likely to create more difficulties than aiding in smooth functioning of the District Judiciary. The two employment notifications cannot be allowed to be proceeded with any further. If any step or further steps are taken in terms of the said two notifications the same are likely to create multiplicity to judicial procedures.”

For clarity, the Bench clarifies in next para noting that, “In the aforesaid facts and circumstances no further steps can be taken in terms of the two employment notifications respectively dated 28th February, 2024 and 14th March, 2024. Any steps taken in terms of the said two notifications till date shall abide by the result of this writ petition. It is made clear that any engagement made in terms of the said two notifications shall not create any equity in favour of the persons so engaged.”

Do note, the Bench notes in next para that, “The matter requires further scrutiny which is possible only after affording the respondents an opportunity to disclose their stand on affidavit.”

Further, the Bench directs in the next para that, “Let Affidavit-in-opposition be filed by 23rd August, 2024, reply thereto, if any, be filed by 6th September, 2024.”

Finally, the Bench then concludes by holding in the next para of this noteworthy judgment that, “Parties will be at liberty to mention for inclusion in the list under the heading ‘Hearing’ on completion of affidavits or on expiry of the time provided for filing of affidavits, if no such affidavits are filed.”

All told, we thus see that Calcutta High Court has made it indubitably clear that the post of Stenographer and Bench Clerk (Peshkar) are very sensitive post for the smooth functioning of the District Judiciary. It is also made absolutely clear by the Calcutta High Court that engagement on contractual basis in such sensitive post are likely to create more difficulties than aiding in smooth functioning of the District Judiciary as they cannot be fastened with any responsibility or liability like a regular employee for any misconduct. No denying!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.