By way of this writ petition under Article 32 of the Constitution of India, the writ petitioners have prayed for an appropriate writ, direction or order to declare the Select List dated 10.03.2023 issued by the High Court of Gujarat at Ahmedabad for the promotion of Senior Civil Judges to the Cadre of District Judge (65% quota) as being violative of Article 14 of the Constitution of India as well as Rule 5 of the Gujarat State Judicial Service Rules, 2005 (hereinafter referred to as “Rules, 2005”) as well the Recruitment Notice – District Judge (65%) dated 12.04.2022. 3 The High Court of Gujarat at Ahmedabad issued an advertisement by way of Recruitment Notice – District Judge (65%) dated 12.04.2022 for the promotion to the cadre of District Judges from amongst the Senior Civil Judges on the basis of the principle of merit-cum-seniority and passing a suitability test to fill up 65 percent of the vacancies. In the Recruitment notice also, there was a reference to the suitability test, which comprised of four components for assessing the suitability of a judicial officer for promotion, which reads as under:- Sr. 2 secured 148.50 marks out of 200 and as though having higher marks, they were not appointed and/or their names were not recommended for promotion to the cadre of District Judge, the petitioners filed the present writ petition on 27.03.2023. 1 and 2.” 8 Despite having been served with the copy of the present writ petition and though notice was made returnable on 28.04.2023 and pending the present writ petition, the State Government hurriedly issued the Notification dated 18.04.2023 notifying the appointment of 68 candidates, who were selected by Select List dated 10.03.2023, however, mentioned in the Notification that the appointments / promotions shall be subject to the outcome of the present writ petition.
Basant, learned Senior Advocate appearing on behalf of the respective petitioners has vehemently submitted that the impugned selection / promotion to the post of District Judge (65%) vide selection list dated 10.03.2023 and the further promotion order dated 18.04.2023 issued by the Government of Gujarat is absolutely illegal and contrary to Rule 5(1)(i) of the Rules, 2005 as amended in 2011 as well as the Recruitment Notice – District Judge (65%) dated 12.04.2022.
It is submitted that despite the above, the High Court as well as the State Government have given the promotion by applying the principle of seniority-cum-merit and the principle of merit-cum- seniority has been given a go-by.
It is submitted that as per the High Court and so stated in the counter affidavit, explaining the procedure adopted for the selection of 68 candidates vide selection list dated 10.03.2023, it is stated as under:- “9. It is submitted that though the High Court uses the nomenclature of above method as merit-cum-seniority, but actually has followed the principle of seniority-cum-merit.
It is submitted that in the present case, the High Court has considered the seniority to be the least identified criteria for promotion, which cannot be sustained, if the principle of “merit-cum- seniority” as provided under the Rules, 2005 is to be followed. 7 It is submitted that the High Court of Jharkhand at Ranchi in 2019 while making appointment to the Superior Judicial Services has followed the principle of merit-cum- seniority, by the same method, which the petitioners are praying before this Hon’ble Court to direct High Court of Gujarat to follow. It is submitted that if the High Court would have followed the principle of “merit-cum-seniority”, in that case, the petitioners would have been promoted to the post of District Judge being more meritorious and having more marks than the promoted candidates. The list was uploaded on 12.04.2022 and the petitioners were enlisted in the said list.; (iv) That the suitability of a candidate had four components, which were duly reflected in the Recruitment Notice. It is submitted that once the feeder cadre includes the candidates who have just two years of experience and the only Marks Criterion is to be seen, the same becomes a selection based only on Merits giving a complete go-by to the principle of seniority.; (viii) That in the present case, for the selection, merit is given preference in as much as senior candidates pave way for meritorious candidates, if at the first instance, they fail to qualify the suitability test and thereafter the remaining candidates fail to secure minimum marks in each of the components and fail to secure aggregate 50% marks out of total 200 marks.
It is submitted that therefore, the writ petitioners, thereafter, cannot make any grievance with respect to the same methodology adopted while considering the post of District Judge.; (xi) That the Andhra Pradesh High Court and the Orissa High Court have also followed the same methodology of principle of merit-cum-seniority.; 6. Learned Senior Advocate appearing on behalf of the promotees, while opposing the present writ petition has made the following submissions:- (i) That the Rules, 2005 have been framed in compliance of the directions issued by this Court in the case of All India Judges’ Association and Ors. Government of Uttar Pradesh and Anr., (2008) 9 SCC 77, this Court has also further clarified that even if the principle of merit-cum-seniority has to be applied, the principle is that if the candidates are eligible for promotion to the cadre of District Judges, the seniority in the feeder category has to be maintained as regards 50 percent of the promotions are concerned and in the case of 25 percent promotions, the test must be rigorous and strictly on merit and such candidate may supersede some of their colleagues in the feeder category, i.e., Civil Judges (Senior Division).; (iii) That the very purpose for providing the channel of promotion under 10% quota through limited competitive examination is to provide an incentive to the officers amongst the relatively junior officers to improve and to compete with each other so as to excel and get quicker promotion. It is submitted that in proviso to Rule 5 in Jharkhand Rules, it is stated that seniority shall prevail only when the merit is concluded in all respects.
The relevant rules read as under: – “……………………(1) Recruitment to the cadre of District Judge shall be as under:- (i) 65 percent of posts shall be filled in by promotion from amongst the Senior Civil Judge on the basis of principle of merit- cum-seniority and passing a suitability test. xxxxxxxxxxxxxxxxx” 8.1
It is also required to be noted that even as per the Recruitment Notice – District Judge (65%), the promotion to the cadre of District Judge (65%) from amongst the Senior Civil Judges shall be on the basis of principle of merit-cum-seniority and passing a suitability test. Emphasising the need for merit-based criteria for promotion in the cadre of Higher Judicial Service, i.e., District Judges and Additional District Judges, this Court observed in paragraph 27 as under:- “ 27. While we have accepted the recommendation of the Shetty Commission which will result in the increase in the pay scales of the subordinate judiciary, it is at the same time necessary that the judicial officers, hard-working as they are, become more efficient. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned: 50 per cent of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle of merit-cum-seniority.
The High Courts will have to frame a rule in this regard.”
2 Thereafter, this Court directed that the recruitment to the Higher Judicial Service, i.e., the cadre of District Judges will be 50 percent by way of promotion (which has been subsequently increased to 65 percent) from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test.
The correct method would be to prepare the merit list on the basis of the four components as mentioned in paragraph 2 of the Recruitment Notice, from amongst those Senior Civil Judges (including ad-hoc Additional District Judges) having not less than two years of qualifying service in that cadre and thereafter to prepare the merit list on the basis of the aggregate marks obtained under different components and thereby to give the promotion solely on the basis of merit, then and then only, it can be said to be following the principle of merit- cum-seniority. 5 Now, insofar as the submission on behalf of the contesting respondents – promotees and the High Court that this procedure is being followed since 2011 and even the same is being followed in other High Courts and therefore, this Court may not interfere with such a method is concerned, the aforesaid cannot be accepted. 7 Now, insofar as the reliance placed upon the decision of this Court in the case of C.P. 8 Now, insofar as the reliance placed upon the decision of this Court in the case of V.K. Before this Court, it was submitted on behalf of the petitioners that prior to the amendment of the Rules, promotion to the cadre of District Judge was based on the principle of “seniority-cum-merit” and now, as per the amended Rules, pursuant to the directions issued by this Court, the principle has been changed to “merit-cum- seniority” and the same has seriously affected the rights of the Civil Judges (Senior Division). As observed, while applying the principle of “merit-cum-seniority”, greater emphasis is given on merit and ability and seniority plays a less significant role.
As observed, while applying the principle of “merit-cum-seniority”, the seniority is to be given weight only when merit and ability are approximately equal (See B.V. Therefore, we are more than prima facie satisfied that the same as such are not sustainable.
Case Title: RAVIKUMAR DHANSUKHLAL MAHETA Vs. HIGH COURT OF GUJARAT (2023 INSC 532)
Case Number: W.P.(C) No.-000432 / 2023
