Seniority To Be Given Weight Only When Merit & Ability Are Equal: SC While Staying Promotion Of 68 Judicial Officers In Gujarat
The Supreme Court while setting aside the impugned select list and subsequent notification issued by the Gujarat High Court and the State government respectively, has stayed the promotion of 68 Judicial Officers as District Judges. Further directed them to be sent to their original posts which they were holding prior to their promotion.
The list of judicial officers also included Chief Judicial Magistrate Harish Hasmukhbhai Varma's name, who had convicted Congress leader Rahul Gandhi in a defamation case.
A bench of Justice M.R. Shah and Justice C.T. Ravikumar while staying the promotion held, "...we are more than satisfied that the impugned Select List dated March 10, 2023 issued by the High Court and the subsequent Notification dated April 18, 2023 issued by the State Government granting promotion to the cadre of District Judge are illegal and contrary to the relevant Rules and Regulations and even to the decision of this Court in the case of All India Judges’ Association and Ors. v. Union of India and Ors., (2002) 4 SCC 247. Therefore, we are more than prima facie satisfied that the same as such are not sustainable".
Senior Advocate R. Basant, appeared with Purvish Jitendra Malkan, on behalf of the writ petitioners. ASG S.V. Raju appeared on behalf of the State and Deepanwita Priyanka also appeared on behalf of the State. Senior Advocates Dushyant Dave, Meenakshi Arora, appeared on behalf of the respective promotees.
In the present matter, the petitioners sought a direction to declare the Selection List issued by the Gujarat High Court 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 as well as the Recruitment Notice – District Judge (65%) dated April 12, 2022.
It was contended that on the directions of the Apex Court in All India Judges’ Association and Ors. Vs. Union of India and Ors., (2002) 4 SCC 247, the High Court framed the Gujarat State Judicial Service Rules, 2005, in which, 50 percent of the promotion from amongst the Senior Civil Judges (Senior Division) has been enhanced to 65 percent by way of amendment in the Rules, 2005 on June 23, 2011. Whereby, Rule 5(1)(i) of the Rules, 2005 requires that 65 percent of the posts in the cadre of District Judges shall be filled in by way of promotion from amongst the Senior Civil Judges on the basis of “principle of merit-cum-seniority and passing a suitability test”. Therefore after conducting a written exam, out of the 175 judicial officers, who qualified the written test, the petitioners were amongst them.
Furthermore, the marks of the selected candidates ranged between 148.50 to 100.50 marks where petitioner No. 1 secured 135.50 out of 200 marks and the petitioner No. 2 secured 148.50 marks out of 200 but were not appointed and their names were not recommended for promotion to the cadre of District Judge.
Pursuant to which. the petitioners filed the present writ petition on March 27, 2023. However, it was alleged that while the matter was pending before the Court, the State Government "hurriedly" issued a Notification dated April 14, 2023 notifying the appointment of 68 candidates.
Reying on the decision of the Apex Court in Hemani Malhotra Vs. High Court of Delhi, (2008) 7 SCC 11, it was argued for the petitioners that “even otherwise once the criteria for eligibility have been mentioned in the recruitment notice, namely, “merit-cum-seniority” and “suitability test”, thereafter, it was not open for the High Court and the State to include the additional requirement / qualification of seniority either during the process or after the selection process”. By adopting such method it was submitted that the High Court had adopted the principle of “seniority-cum-merit”.
However, the respondents argued that the merit-cum-seniority does not mean that the length of service has no relevance and only a written examination tests academic knowledge, which is sometimes, gained without possessing overall qualities, practical experience of practicing law. Furthermore, that the High Court has considered the merit only for the purpose of achieving the benchmark and thereafter has switched to the seniority-cum-merit and has given the promotion on the basis of seniority only amongst those, who have achieved the benchmark of 50 percent.
The respondent also contended that the methodology, which has been followed by the High Court is being followed since the year 2011. Further that the petitioners never objected to it earlier.
The Court in its thus order noted, “…in the present case and as per the merit list produced before the High Court, the candidates, who have secured much more marks are denied promotion and the candidates / Civil Judge (Senior Division), who are having less marks / leas meritorious are promoted. In the present case, the petitioner No. 1 secured 135.50 out of 200 marks and the petitioner No. 2 secured 148.50 marks out of 200 against which a candidate having secured 101 marks have got the promotion, which is affecting the principle of “merit-cum-seniority”.
The Court after taking the Rules and the procedure followed by the High Court was of the opinion, "We do not find anything in the Recruitment Rules, 2005 and/or even the Recruitment Notice to consider the merit only for the purpose of achieving benchmark of 50 percent. 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 meritWrit Petition (C) No. 432 of 2023 Page 24 of 30 cum-seniority. Therefore, in the present case, while giving the promotion in the cadre of District Judge, the High Court has given a go-by to the principle of merit-cum-seniority, which this Court has emphasised in the case of All India Judges’ Association and Ors. (supra). Therefore, the High Court has adopted the wrong method".
The Bench was also of the opinion that the State Government could have waited till April 24, 2023 which was the next date of hearing by the Court.
"At present the respective promotees have not assumed their posting on the promotional post and as such are sent for training, we stay the further implementation and operation of the Select List dated March 10, 2023 issued by the High Court of Gujarat and the subsequent Notification dated April 18, 2023 issued by the State Government. Meaning thereby, the respective promotees be sent to their original posts which they were holding prior to their promotion vide Select List dated March 10, 2023 and Notification dated April 18, 2023. However, it is clarified that the present stay order shall be confined with respect to those promotees whose names do not figure within the first 68 candidates in the Merit List on the basis of the merits the copy of which is produced by the High Court along with the counter. Meaning thereby, the promotion of those promotees, whose names otherwise do figure in the first 68 candidates in the Merit List shall be continued as even otherwise and even if the writ petition is allowed, in that case also, they will get the promotion on merits....", the bench further noted in its order.
The bench also opined that even though it was inclined to dispose of the writ petition, but on Dushyant Dave's prayer (for the promotees) to consider the question of interim relief, did not do so.
Considering the importance of the matter, the bench was even of the opinion that the matter be heard by the CJI after obtaining appropriate orders on the administrative side.
Cause Title: Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat and Ors.
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