Ravikumar Dhansukhlal Maheta & Anr. vs High Court of Gujarat & Ors.

Service Law – Principle of ‘Seniority-cum-Merit’: Held: The principle of ‘Seniority-cum-Merit’ postulates that:

(i) Minimum requirement of merit and suitability which is necessary for the higher post can be prescribed for the purpose of promotion –

(ii) Comparative Assessment amongst the candidates is not required – (iii) Seniority of a candidate is not a determinative factor for promotion but has a predominant role – (iv) Upon fulfilling the minimum qualifications, promotions must be based on inter-se seniority. [Para 98 (I)]

Service Law – Principle of the ‘Merit-cum-Seniority’: Held: The principle of ‘Merit-cum-Seniority’ postulates that:

(i) Merit plays a predominant role in and seniority alone cannot be given primacy; (ii) Comparative Assessment of Merit is a crucial, though not a mandatory, factor; (iii) Only where merit is equal in all respects can inter-se seniority be considered – Meaning that a junior candidate can be promoted over the senior if the junior is more meritorious. [Para 98 (II)]

Service Law – Principles of ‘Merit-cum-Seniority’ and ‘Senioritycum-Merit’ – Nature of these principles: Held: The principle of ‘Merit-cum-Seniority’ and ‘Seniority-cumMerit’ are a flexible and a fluid concept akin to broad principles within which the actual promotion policy may be formulated – They are not strict rules or requirements and by no means can supplant or take the place of statutory rules or policies that have been formulated, if any – These principles are dynamic in nature very much like a spectrum and their application and ambit depends upon the rules, the policy, the nature of the post and the requirements of service – The principles applicable to promotion such as the principle of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ can best be described as two ends of a spectrum – They are broad categories or frameworks for promotion and do represent the actual modalities by which promotions are to take place – It is the rules and the promotion policy, along with the intention of the legislature or the selection board, as the case may be, that supplements these principles and delineates the actual modality of how promotion is to take place – Through these rules and promotion policy, the legislature or the selection body specifies the area and the parameters or the weightage which is to be given to the aspect of “Merit” and “Seniority” on the said spectrum. [Para 110] Constitution of India – Art. 235 – High Court as a custodian of the District Judiciary under Article 235 of the Constitution: Held: It is clear that when it comes to promotion of judicial officers of the District Judiciary, the control vests with the High Court under Article 235 of the Constitution – The High Court being the sole authority in this regard can clearly lay down rules and policies pertaining to promotions which includes the power to specify the criteria and parameters it deems most suitable and appropriate for the purpose of promotion and the manner in which promotion is to be made as long as it is within the contours of what has been laid down in All India Judges’ Association (3). [Para 119] Service Law – Objectives intended to be achieved through All India Judges’ Association (3) – Two-fold objectives: Held: (i) First, to ensure that unlike the traditional promotion policy under which seniority alone was considered for promotion, a new policy should be devised under which seniority would be considered for promotion, but only for those candidates who possessed the minimum necessary standard of suitability for the post, and;

(ii) Secondly, to prevent loss of motivation amongst the relatively junior members of the service, a third category for promotion to the Higher Judicial Service should be created, wherein promotions would be given strictly on the basis merit, to be ascertained through a limited departmental competitive examination – Thus, while the comparison of inter-se merit to determine the most meritorious candidates was the procedure to be adopted for filling up the seats under the newly created category, it was never the intention of this Court in the aforesaid decision to mandate the comparative assessment of merit in the category of regular promotions based on seniority – The only additional requirement which was provided for by the aforesaid decision for this category of candidates was the possession of certain minimum objectively determinable standard of suitability. [Paras 127, 128]

Service Law – Judiciary – Promotion – Introduction of a suitability test:

Held: The objective sought to be achieved by the introduction of a suitability test in the regular promotional category was limited to the assessment of a minimum standard of suitability – It would be incorrect to say that the marks scored by a candidate in the suitability test are proportional to the merit of the candidate – This can be understood with the aid of an illustration – Take a case wherein the minimum marks required to be obtained in the suitability test is ‘x’; then for the purpose of 65% promotional quota, as soon as a candidate obtains ‘x’ marks in the suitability test, such a candidate becomes eligible for being considered for promotion in that category subject to their seniority vis-à-vis the other suitable candidates – It cannot be said that a candidate who obtains (x + 10) marks is more meritorious or more suitable than those candidates who obtain ‘x’ or (x + 5) marks in the suitability test – Every candidate who scores higher than or equal to ‘x’ marks in the suitability test is considered equally suitable and equally meritorious for the purpose of 65% promotional category. [Para 129]

Gujarat State Judicial Service Rules, 2005 – ‘Merit-cumSeniority’ in context of: Held: The term ‘Merit-cum-Seniority’ in context of 2005 Rules implies that both merit and seniority would be considered in the promotion of a candidate, with merit being determined on the basis of a suitability test – The exact modalities of how merit and seniority are to be apportioned is a legislative function and is to be performed keeping in mind the unique requirements and circumstances of the organization – In the instant case, there is no fault with the promotion process adopted by the High Court of Gujarat as the same fulfils the twin requirements stipulated in All India Judges’ Association (3) being: – (I) The objective assessment of legal knowledge of the judicial officer including adequate knowledge of case law and; (II) Evaluation of the continued efficiency of the individual candidates – The four components of the Suitability Test as prescribed under the recruitment notice dated 12.04.2022 comprehensively evaluate (i) the legal knowledge including knowledge of the case law through the objective MCQ – based written test AND (ii) the continued efficiency by evaluation of the ACRs, average disposal and past judgments of the concerned judicial officer. [Paras 132, 141(D), 141(E)]

Gujarat State Judicial Service Rules, 2005 – Suggestions to make the suitability test more meaningful:

Held: The High Court of Gujarat is proposed to amend its Rules appropriately in line with the Uttar Pradesh Higher Judicial Service Rules, 1975 where the recruitment process has been elaboratively laid down – The minimum standard to be objectively assessed by way of a suitability test should be made more efficacious and productive – The Court suggests the following: (i) Apart from the four components included in the Suitability Test, an additional fifth component in the form of an Interview or Viva Voce should also be included in order to assess the ability and knowledge of the candidates; (ii) The High Court may consider enhancing the minimum specified threshold of marks as prescribed in the suitability test and each of its component; (iii) The evaluation of judgments delivered by the judicial officer being considered for promotion should be of the last two years instead of one year;

(iv) Instead of seniority being considered at the very last stage of the process, some marks may be allocated for seniority at the stage of suitability test and thereafter, the final select list may be prepared on the basis of total marks. [Para 140] Service Law – Gujarat State Judicial Service Rules, 2005 – Suitability of each candidate should be tested on their own merit:

Held: What has been conveyed by this Court in All India Judges’ Association (3) is that the suitability of each candidate should be tested on their own merit – The aforesaid decision does not speak about comparative merit for the 65% promotional quota – In other words, what is stipulated is the determination of suitability of the candidates and assessment of their continued efficiency with adequate knowledge of case law. [Para 141A]

Service Law – Gujarat State Judicial Service Rules, 2005 – Promotion – 65% promotional quota – Suitability test – Requisite marks – Merit list:

Held: For the 65% promotional quota this Court in All India Judges’ Association (3) did not state that after taking the suitability test, a merit list should be prepared and the judicial officers should be promoted only if they fall in the said merit list – It cannot be said to be a competitive exam – Only the suitability of the judicial officer is determined and once it is found that candidates have secured the requisite marks in the suitability test, they cannot be thereafter ignored for promotion – However, it is clarified that for the 65% promotional quota, it is for a particular High Court to prescribe or lay down its own minimum standard to judge the suitability of a judicial officer, including the requirement of comparative assessment, if necessary, for the purpose of determining merit to be objectively adjudged keeping in mind the statutory rules governing the promotion or any promotion policy in that regard. [Paras 141B, 141C]

Service Law – Gujarat State Judicial Service Rules, 2005 – It was contended that the High Court wrongly subjected all eligible candidates in the feeder cadre i.e. Civil Judge (Senior Division) to a process of assessment of a specified level of minimum merit and then proceeded to prepare the final select list strictly in accordance with the seniority of the candidates:

Held: This Court is of the view that if the contention of the petitioners were to be accepted then it would completely obliterate the fine distinction between the two categories of promotion in the cadre of District & Sessions Judge by way of 65% promotion on the basis of ‘Merit-cum-Seniority’ and 10% promotion strictly on the basis of merit – In other words, the 65% quota for promotion will assume the character of the 10% quota for promotion by way of a departmental competitive examination which is distinct in its nature since the latter is strictly based on merit. [Para 141F] Service Law – Gujarat State Judicial Service Rules, 2005 – Whether promotion of Civil Judges (Senior Division) to the cadre of District Judges in accordance with Rule 5(1) of the 2005 Rules and the Recruitment Notice dated 12.04.2022 issued by the High Court of Gujarat is contrary to the principle of ‘Meritcum-Seniority’ as laid down in All India Judges’ Association (3): Held: There was no fault with the promotion process adopted by the High Court of Gujarat as the same fulfils the twin requirements stipulated in paragraph 27 of All India Judges’ Association (3) being: – (I) The objective assessment of legal knowledge of the judicial officer including adequate knowledge of case law and; (II) Evaluation of the continued efficiency of the individual candidates – The four components of the Suitability Test as prescribed under the recruitment notice dated 12.04.2022 comprehensively evaluate (i) the legal knowledge including knowledge of the case law through the objective MCQ-based written test AND (ii) the continued efficiency by evaluation of the ACRs, average disposal and past judgments of the concerned judicial officer – The impugned final Select List dated 10.03.2023 is not contrary to the principle of ‘Merit-cum-Seniority’ as stipulated in Rule 5(1)(I) of the 2005 Rules. [Paras 141D, 141E, 143]