Sujata Kohli vs Registrar General, High Court of Delhi & Ors.

Delhi Higher Judicial Service Rules, 1970: Merit-cumseniority – Criteria for promotion to the posts of District and Sessions Judges – Implementation of revised criteria in phased manner – Challenged – Held: High Court, in its Full Court meeting dated 28.04.2009 had adopted a resolution to the effect that, for being selected/promoted as District and Sessions Judge, a candidate of DHJS ought to fulfil the criteria of possessing at least two ‘A’ (very good) and three ‘B+’ (good) ACR gradings for the preceding five years from the date of consideration for such appointment – Thereafter, in its Full Court meeting dated 15.01.2010, the High Court proceeded to modify the said criteria to the effect that a candidate of DHJS ought to possess the minimum ‘A’ (very good) grading in ACRs of each of the five years under consideration – As against resolution dated 15.01.2010, the High Court received certain representations, including those from the Associations of the Officers and, upon consideration of these representations, a committee comprising of four Judges recommended for implementation of the revised criteria in a phased manner; and such recommendations of the committee were accepted by the Full Court of the High Court – In the given fact situation and the methodology of gradual implementation adopted by the High Court, the suggestion on the part of the appellant that there had been any so-called retrospective operation of revised criteria was totally bereft of substance – In view of the duties and responsibilities attached with the higher posts of District and Sessions Judge and Principal Judge, Family Court, the High Court cannot be faulted in providing for a reasonable method of assessment of the requisite merit in the manner that a candidate in the zone of consideration ought to be possessing minimum five “very good” ACRs in the preceding five years from the base year – In fact, the criteria so adopted had been the identical one as provided for the members of IAS in the equivalent pay scales – High Court did not change the eligibility criteria for appointment to the post of District and Session Judge or Principal Judge, Family Court but merely evolved a selection criteria for evaluation of eligible candidates – There was no denial of a pre-existing right of the appellant, who entered the zone of consideration only in the year 2014-15 whereas, the criteria in question was implemented for appointments made from the year 2012.

Delhi Higher Judicial Service Rules, 1970: r.27 – Whether the appellant was denied fair and reasonable consideration of her case for promotion to the posts of District and Sessions Judge/Principal judge, Family Court by operation of criteria laid down in the impugned resolutions – Held: Appellant was a member of DHJS – By virtue of r.27, she would be deemed to be having constructive knowledge that the criteria to be adopted for upward progression would be that as applicable for the equivalent posts in IAS – When it had consistently been provided that for promotion to the scale of Rs. 18,400-22,400 and above, the prescribed benchmark of “very good” ought to be met in all ACRs of five years under consideration; and when the higher posts of District and Sessions Judge and Principal Judge, Family Court do carry much higher scales of pay, neither the High Court could be faulted in applying the same benchmark for such higher posts in DHJS nor the appellant could feign ignorance about the same – Apart from that in the 1970 Rules, the entry level promotion to the post in DHJS is on the basis of merit-cum-seniority or merit – In the light of such requirements, any upward progression in DHJS could only be on the higher requirements of merit and in any case, such requirements cannot be lesser than the requirements at entry level – Appellant was conscious of the fact that for upward movement in DHJS, merit would acquire primacy; and that seniority alone was not going to be decisive for promotion to the higher posts of District and Sessions Judge and the Principal Judge, Family Court – Appellant was also conscious of the position that while making any such promotion, the assessment would be based on the competitive merit of the candidates in the zone of consideration; and if any candidate in such zone of consideration was possessed of better merit than herself, he would be preferred for promotion – Thus, appellant was not denied fair and reasonable consideration of her case for promotion to the posts of District and Sessions Judge/ Principal Judge, Family Court by operation of the criteria laid down in the impugned resolutions.

Judicial Officer – ACR grading – Whether the appellant suffered any prejudice in the matter of ACR grading – It is not in dispute that the appellant was informed of every grading made in her ACR – She was awarded ‘B+’ (good) in the years 2010, 2011, 2012 and 2013; and ‘A’ (very good) in the year 2014 – Material placed on record showed that the appellant never challenged her gradings for any year except that for the year 2011 when she requested for upgradation of her ACR grading from ‘B’ to ‘B+’ or ‘A’; and the High Court, acceding to her request, upgraded her ACR to ‘B+’ – Impugned resolution dated 27.01.2011 came to be adopted after due consideration of the representations made to the High Court and in conformity with the criteria provided by the Government of India for the posts equivalent in scale to that of District Judges – However, the criteria of having ‘A’ (very good) grading in the preceding five years was implemented in a phased manner – Appellant, not being oblivious of the position that for any upward progression in DHJS, comparative merit would be a key factor, chose to remain contented with her grading at ‘B+’ in the relevant years and did not question the same at the appropriate time and in appropriate manner – That being the position, the appellant cannot be acceded the right to contend now and at this stage that the ACR gradings have operated adverse to her – While raising grievance with regard to the impact and effect of ACR gradings, the appellant appears to have missed out the fundamental factor that for the promotions in question, an individual’s minimum merit, by itself, was not going to be decisive; but the relevant factor was going to be comparative merit of the persons in the zone of consideration – That being the position, when the persons in zone of consideration possessing ‘A’ (very good) grading have been promoted in preference to her, the appellant cannot raise a grievance about her gradings after such promotions – Appellant was not able to establish that she had suffered any prejudice in the matter of ACR gradings.

Dismissing the appeal, the Court

HELD: 1.1 The criteria in question, for promotion to the post of District and Sessions Judge and equivalent, had been evolved and operated by the High Court in the purported exercise of its powers under the Delhi Higher Judicial Service Rules, 1970. The matter in the present appeal relates to promotion to the posts of District and Sessions Judge or Principal Judge, Family Court within the cadre of DHJS. Apparently, no separate provision is found in the Rules of 1970 as regards such upward progression within the cadre and obviously, for such a matter, the residuary provision as contained in Rule 27 comes into operation by virtue of which, the directions or orders for the time being in force and applicable to the officers of comparable status in IAS would apply. [Paras 15.2, 15.3][396-H; 397-A; 398-D-E]

1.2 The appellant had attempted to question the said Rule

27 of the Rules of 1970 as being ultra vires, particularly with reference to the decision of this Court in the case of All India Judges Association. The High Court rightly rejected such a challenge to Rule 27 because this residuary clause in the Rules of 1970 did not appear offending the law declared by this Court in any manner. This residuary clause is not of equating the judicial officers with the executive officers but only provides that in regard to the matters for which no provision or insufficient provision has been made in the Rules of 1970, the relevant rules, directions or orders as applicable to IAS shall regulate the conditions of service of the officers of DHJS. A perusal of the other provisions in the Rules of 1970 makes it clear that reference to the service conditions of the members of IAS is not an anathema to these rules and, on the contrary, wherever necessary, the applicable rules, orders or directions concerning the members of IAS do govern the service conditions of the judicial officers too. [Para 15.3][398-E-H]

All India Judges Association v. Union of India: (1993)

4 SCC 288 : [1993] 1 Suppl. SCR 749 – referred to.

2.1 The striking feature of the Rules of 1970 is that even at the entry level, the promotions are to be made either on meritcum-seniority basis or on merit basis. Further, grant of Selection Grade and Super Time Scale is also on assessment of merit-cumseniority. In the given scheme of the Rules of 1970, it is difficult to countenance any suggestion that in DHJS, merit could be forsaken at any level or only seniority be given primacy in the matter relating to upward progression to the higher posts of District and Sessions Judge or Principal Judge, Family Court. Rather, looking to the nature of posts, in every higher progression, merit would play a major role and would, perforce, acquire primacy. [Para 16][401-E-F]

2.2 As per the facts available on record, prior to the year 2008, there was only one sanctioned post of District Judge under the Rules of 1970. Later on, the National Capital Territory of Delhi came to be bifurcated into nine Civil Districts and in view of such bifurcation, the strength of District and Sessions Judges was increased to 11. This reorganisation and increase of strength of the cadre of DHJS, obviously, led to the requirement of providing the norms and criteria for promotion to the posts of District and Sessions Judges and equivalent because no such norms and criteria were in existence. In keeping with such requirements, the High Court, in its Full Court meeting dated 28.04.2009, adopted a resolution to the effect that, for the purpose of being selected/promoted as District and Sessions Judge, a candidate of DHJS ought to fulfil the criteria of possessing at least two ‘A’ (very good) and three ‘B+’ (good) ACR gradings for the preceding five years from the date of consideration for such appointment. Thereafter, in its Full Court meeting dated 15.01.2010, the High Court proceeded to modify the aforesaid criteria to the effect that for being promoted as District and Sessions Judge, a candidate of DHJS ought to possess the minimum ‘A’ (very good) grading in ACRs of each of the five years under consideration. It had been the case of the respondent High Court that such criteria were adopted as being equivalent to the revised promotion criteria in the Indian Administrative Services by virtue of the residuary provision contained in Rule

27. As against the aforesaid resolution dated 15.01.2010, the High Court received certain representations, including those from the Associations of the Officers and, upon consideration of these representations, a committee comprising of four Judges, in its report dated 08.10.2010, recommended for implementation of the revised criteria in a phased manner; and such recommendations of the committee were accepted by the Full Court of the High Court on 27.01.2011. In this manner aforesaid, the respondent High Court took the decision to implement the revised criteria envisaged by the resolution dated 15.01.2010 in a phased manner; and the requirements came to be provided that for appointment to the post of District and Sessions Judge, a candidate should, in the five years preceding the base year, carry the ACR gradings as follows: (i) for the year 2009, at least two ‘A’ (very good) and the remaining three ‘B+’ (good); (ii) for the year 2010, at least three ‘A’ (very good) and the remaining two ‘B+’ (good);(iii) for the year 2011, at least four ‘A’ (very good) and the remaining one ‘B+’ (good); and (iv) for the year 2012 and onwards, a minimum of five ‘A’ (very good). Further, the Administrative Committee of the High Court, in its meeting dated 13.09.2013, resolved, inter alia, that the post of Principal Judge, Family Court being equivalent to that of District and Sessions Judge, the same criteria be also adopted for appointment of Principal Judge, Family Court. [Para 17][401-H; 402-A-H; 403A-B]

2.3 The views of the High Court in the impugned order were correct that the no-norms position for upward progression in DHJS, as existing prior to the year 2009, could not have been continued with reorganisation of the District Courts and certain norms, commensurate with the posts in question, were required to be provided; and were accordingly provided with reference to the prescriptions for the officers of IAS in the equivalent pay scales. For the officers of such equivalent pay scales, the requirement had been of five “very good” ACR gradings (i.e., ‘A’ grading) for five years preceding the date of consideration for higher positions. The High Court establishment had further been reasonable in its approach when such threshold requirement of five “very good” ACR gradings was not foisted on the officers immediately and, in keeping with the position obtainable in the past as also keeping in view the merit requirements, took a considered decision that such criteria be implemented gradually and started with the norms of two “very good” with three “good” ACR gradings for the year 2009 and systematically enhanced the norms. In the given fact situation and the methodology of gradual implementation adopted by the High Court, the suggestion on the part of the appellant that there had been any so-called retrospective operation of revised criteria remains totally bereft of substance and could only be rejected. [Paras 17.1, 17.2][403C-G]

3.1 The submissions on behalf of the appellant that she was not made aware of such so-called revised criteria carry several shortcomings of their own. The appellant joined DHJS in the year 2002. She was confirmed with effect from 25.11.2004. She was, and would always be presumed to be, aware of all the requirements of the Rules of 1970. Moreover, the appellant, a member of DHJS, cannot suggest that she remained oblivious of the developments about creation of nine Civil Districts in the year 2008 and increase in the strength of District and Sessions Judges to 11. The appellant was also aware of the fact that no specific provision was available in the Rules of 1970 as regards upward progression in DHJS, particularly to the posts of District and Sessions Judge and Principal Judge, Family Court and hence, by virtue of Rule

27 of the Rules of 1970, she would be deemed to be having constructive knowledge that the criteria to be adopted for such upward progression would be that as applicable for the equivalent posts in IAS. When it had consistently been provided that for promotion to the scale of Rs. 18,400-22,400 and above, the prescribed benchmark of “very good” ought to be met in all ACRs of five years under consideration; and when the higher posts of District and Sessions Judge and Principal Judge, Family Court do carry much higher scales of pay, neither the High Court could be faulted in applying the same benchmark for such higher posts in DHJS nor the appellant could feign ignorance about the same. Apart from that, in the Rules of 1970, even the entry level promotion to the post in DHJS is on the basis of merit-cumseniority or merit. Viewed in the light of such requirements, it goes without saying that any upward progression in DHJS could only be on the higher requirements of merit and in any case, such requirements cannot be lesser than the requirements at entry level. [Paras 18, 18.1][403-H; 404-A-G]

3.2 The appellant was aware of, and shall always be deemed to be conscious of, the requirement that any promotion to the post of District and Sessions Judge or Principal Judge, Family Court would only be on the basis of such norms where merit would be a crucial factor and seniority alone would not suffice. It follows as a necessary corollary that the appellant was also conscious of the position that while making any such promotion, the assessment would be based on the competitive merit of the candidates in the zone of consideration; and if any candidate in such zone of consideration was possessed of better merit than herself, he would be preferred for promotion. [Para 18.3][405-EF]

4.1 Coming now to the operation of the criteria in question, providing for the norms for assessment of the comparative merits of the candidates in the zone of consideration, was squarely within the domain of the High Court; and infringement of the right of consideration could only be suggested if different yardsticks or different norms were provided and applied qua the similarly circumstanced persons. However, this is not the case of the appellant nor it could be so because the High Court has apparently taken up all the persons in the zone of consideration at the relevant time and has accorded promotion on the basis of comparative merit of the candidates. The appellant, when could not stand in such competitive merit position, cannot raise a complaint about infringement of any of her legal rights. It is not the case of the appellant that anybody junior to her and standing equal in merit or anybody not fulfilling the criteria laid down by the High Court has been promoted. [Para 19][405-G-H; 406-AB]

4.2 Looking to the duties and responsibilities attached with the higher posts of District and Sessions Judge and Principal Judge, Family Court, the High Court cannot be faulted in providing for a reasonable method of assessment of the requisite merit in the manner that a candidate in the zone of consideration ought to be possessing minimum five “very good” ACRs in the preceding five years from the base year. In fact, the criteria so adopted had been the identical one as provided for the members of IAS in the equivalent pay scales. [Para 19][406-C-D]

4.3 The material placed on record show that the case of the appellant was duly considered for such promotion along with the other incumbents but herself and a few others were not promoted for not fulfilling the criteria as provided in the impugned resolutions. The High Court did not change the eligibility criteria for appointment to the post of District and Session Judge or Principal Judge, Family Court but merely evolved a selection criteria for evaluation of eligible candidates. There had not been any denial of a pre-existing right of the appellant, who entered the zone of consideration only in the year 2014-15 whereas, the criteria in question was implemented for the appointments made from the year 2012. The appellant has not been denied fair and reasonable consideration of her case for promotion to the posts of District and Sessions Judge by operation of the criteria laid down in the impugned resolutions. [Paras 21, 22, 23][406-E-F; 407-B-D]

5.1 It is not in dispute that the appellant was, in fact, informed of every grading made in her ACR. She was awarded ‘B+’ (good) in the years 2010, 2011, 2012 and 2013; and ‘A’ (very good) in the year 2014. She never challenged her gradings for any year except that for the year 2011 when she requested for upgradation of her ACR grading from ‘B’ to ‘B+’ or ‘A’; and the High Court, acceding to her request, upgraded her ACR to ‘B+’. The appellant, not being oblivious of the position that for any upward progression in DHJS, comparative merit would be a key factor, chose to remain contented with her grading at ‘B+’ in the relevant years and did not question the same at the appropriate time and in appropriate manner. That being the position, she cannot be acceded the right to contend now and at this stage that the ACR gradings have operated adverse to her. [Para 25.1][409D-G]

5.2 The other contention as on behalf of the appellant that only the overall ACR grading was communicated but not the pointwise grading or criteria for grading, again, does not advance the cause of the appellant in any manner. The appellant failed to show any legal requirement on the respondent establishment to supply to her anything other than the overall grading. Also the grading of an individual officer remains a matter between the officer and the establishment and any other officer cannot claim to be informed about the grading of any other officer as a matter of right. The system and method for awarding of the grades in ACR at the relevant time was equally applicable to all the judicial officers; and the gradings, not only of the appellant but of all other officers too, were made by way of the same methodology. Therein too, the judicial officers’ work and performance was supervised and graded by the committees comprising of three Judges and ultimately, the gradings were finalised by the Full Court. In the impugned order also, the High Court found such system to be a merited one but indicated the want of uniform set of rules or guidelines for all the appraisal committees to follow; and thereafter proceeded to lay down certain norms to be kept in view by the evaluation authorities. The observations by the High Court, essentially meant for improvement of the system with uniform set of guidelines, do not nullify the effect of the ACRs already marked by the existing system. The guidelines indicated by the High Court in the order impugned could only be construed as being meant for future implementation. Nothing turns upon such observations in relation to the case of the appellant. The appellant has not been able to establish that she had suffered any prejudice in the matter of ACR gradings. [Paras 27, 28, 29][410-C-H; 411A-C] Ajit Singh and Ors. (II) v. State of Punjab and Ors. (1999) 7 SCC 209 : [1999] 2 Suppl. SCR 521;

Chandramouleshwar Prasad v. Patna High Court AIR 1970 SC 370; Central Council for Research in

Ayurveda & Siddha and Anr. v. Dr. K. Santhakumari (2001) 5 SCC 60 : [2001] 3 SCR 519; Dev Dutt v. Union of India (2008) 8 SCC 725 : [2008] 8 SCR 174;

Sukhdev Singh v. Union of India (2013) 9 SCC 566 : [2013] 5 SCR 1004 – relied on.

State of U.P. v. Mahesh Narain (2013) 4 SCC 169 : [2013] 4 SCR 534; Nirmal Chandra Bhattachargee & Ors. v. Union of India & Ors. (1991) 2 Suppl. SCC 363 – distinguished.

State of Bihar v. Bal Mukund Sah (2000) 4 SCC 640 : [2000] 2 SCR 299; Haryana State Electronics

Development Corporation Limited and Ors. v. Seema Sharma and Ors. (2009) 7 SCC 311 : [2009] 7 SCR

662 – referred to.