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The supreme court upholds Gujarat High courts ADJs promotion process

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Case Title: Ravikumar Dhansukhlal Maheta & Anr. V. High Court of Gujarat & Ors.

Case No.: Writ Petition (C) No. 432 of 2023

Dated on: 17 May 2024

Coram: Hon’ble DR. DHANANJAYA Y. CHANDRACHUD, CHIEF JUSTICE OF INDIA, JUSTICE J.B.PARDIWALA and JUSTICE MANOJ MISRA

FACTS OF THE CASE

Two Civil Judges (Senior Division) challenged the High Court of Gujarat’s method of promotion to the post of Additional District Judge against the 65% quota. The High Court issued a recruitment notice on April 12, 2022, for the promotion of 68 Civil Judges (Senior Division) to the post of Additional District Judge against the 65% quota. The notice specified that the promotion would be based on ‘Merit-cum-Seniority’ and a Suitability Test. The Suitability Test consisted of four components: Written Test (Objective Type – MCQs), evaluation of last 5 years’ ACRs, assessment of last 5 years’ average disposal, and evaluation of judgments delivered in the last one year. The Written Test was conducted, and 175 candidates cleared it by securing a minimum of 40% marks. Thereafter, the High Court evaluated the ACRs, judgments, and disposal rates of these 175 candidates. Candidates who secured a minimum 40% marks in each component and a minimum aggregate of 50% marks in all four components were eligible for promotion. The High Court prepared the final Select List, which included the seniormost 68 candidates amongst the 149 eligible candidates which the petitioners allege to be principle of ‘Seniority-cum-Merit’ instead of ‘Merit-cum-Seniority’ which led to the promotion of candidates based on seniority rather than merit. Henceforth the petitioners invoked the jurisdiction of the Supreme Court under Article 32 of the Constitution, seeking relief against the High Court’s method of promotion.

ISSUES

  • What is the scope of principle of the ‘Merit-cum-Seniority’ in service jurisprudence.
  • 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 ‘Merit-cum-Seniority’ as laid down in All India Judges’ Association (3).

LEGAL PROVISIONS

Article 226 of the Constitution of India:

This article grants High Courts the power to issue certain writs for the enforcement of fundamental rights and for any other purpose.

Rule 5(1)(I) of the Gujarat State Judicial Service Rules, 2005

 This rule outlines the criteria for promotion to the cadre of District Judges, emphasizing the principle of ‘Merit-cum-Seniority.’ It requires that the selection for promotion should be based on merit while also considering seniority.

Article 235 of the Constitution of India

This article vests the control over district courts and courts subordinate thereto, including the posting and promotion of judicial officers, with the High Court.

Article 32 of The Constitution of India

Article 32 of the Constitution of India deals with the right to constitutional remedies. It is a fundamental right that empowers individuals to approach the Supreme Court directly for the enforcement of their fundamental rights guaranteed under the Constitution. Article 32(2) authorizes the Supreme Court to issue directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari for the enforcement of such fundamental rights.

CONTENTIONS OF THE PETITIONER

The petitioners, two Civil Judges (Senior Division), have contended that the High Court of Gujarat erred in applying the principle of ‘Seniority-cum-Merit’ in the recruitment process for promotion to the post of Additional District Judge against the 65% quota. The petitioners argue that the principle of ‘Merit-cum-Seniority’ means that seniority should be considered only in the event of a tie between candidates on their individual merit. Whereas, the High Court’s method of promotion, which assesses candidates based on a minimum level of merit and then selects the seniormost candidates, is equivalent to ‘Seniority-cum-Merit’. The learned Senior Counsel submitted that in the procedure that came to be followed by the High Court for promotion, seniority has been applied and given effect twice – once at the stage of preparation of the zone of consideration and then again at the stage of preparing the final Select List. The petitioners have referred the case of Rupa Rani Rakshit & Ors. v. Jharkhand Gramin Bank and the case of Dr. Kavita Kamboj v. High Court of Punjab and Haryana & Ors where merit of the candidates was given due importance by the court. They claimed that the High Court’s method of promotion, which prioritizes seniority over merit, is incorrect. The petitioners claim that the High Court’s method of promotion resulted in unfair treatment to them and other junior candidates who scored higher marks but were not selected due to their lower seniority.

CONTENTIONS OF THE RESPONDENTS

ON BEHALF OF THE HIGH COURT OF GUJRAT:

The High Court of Gujarat has contended that the principle of ‘Merit-cum-Seniority’ should not be conflated with Merit. The High Court emphasizes that while merit is concerned only with the grade/credit of the candidate, ‘Merit-cum-Seniority’ not only checks merit but also lays emphasis on seniority. The High Court argues that if the interpretation of ‘Merit-cum-Seniority’ as submitted by the petitioners is accepted, then the entire process of promotion would become solely based on merit and the aspect of seniority would be completely obliterated from the principle of ‘Merit-cum-Seniority’. This would have a far-reaching effect, resulting in an amalgamation of the promotion process against 65% posts on the basis of ‘Merit-cum-Seniority’ and the process against 10% posts on the basis of strict merit in the cadre of District Judges, thereby doing away with the fine distinction between the two modes of promotion. The High Court further submits that it has been following the same methodology since 2011.  

ON BEHALF OF THE PROMOTED CANDIDATES:

Mr. Dushyant Dave, learned Senior Counsel appeared for judicial officers who found place in the final Select List. He submitted that the writ petition under Article 32 ought not to be entertained as the petitioners have an alternative efficacious remedy of filing a writ petition under Article 226 of the Constitution before the High Court. He argued that in All India Judges’ Association (3), the principle of ‘Merit-cum-Seniority’ and Suitability Test was provided only to objectively ascertain a minimum standard of merit for promotion to the Higher Judicial Services. The learned counsel argued that the principle of ‘Merit-cum-Seniority’ does not mean seniority has no relevance. The marks secured may be obtained without possessing important qualities like practical experience. Merely scoring a few marks more than other candidates is neither an indication of being more meritorious nor a reason to negate the length of service of senior candidates. If the petitioners’ interpretation is accepted, it would cause undue hardship and unjust treatment to some senior judges whose names were included in the final Select List, as they would lose precious years of seniority for obtaining a few marks lesser. Petitioners’ reliance on the promotion process of Jharkhand and Calcutta High Courts is misplaced as their rules are not pari-materia to the 2005 Rules. Finally, they concluded that the senor most judges included in this final list for promotion had scored higher marks in 2020 process but were not promoted due to being junior. The High Court has consistently followed the ‘Merit-cum-Seniority’ process since 2011. Deviating will result in inequitable repercussions.

COURTS ANALYSIS AND  JUDGEMENT

The Supreme Court rejected the High Court’s argument that the petitioners should have approached the High Court under Article 226 instead of directly filing the writ petition under Article 32 before the Supreme Court and held that the availability of an alternative remedy does not affect the maintainability of a writ petition under Article 32. Whenever there is no conflict over the facts and the issue is how to interpret important rules that have wide-ranging consequences, the Supreme Court may decide to exercise its discretion and consider the writ petition under Article 32 even in cases where there is an alternative remedy. This is because the requirement that a party must first pursue the alternative remedy is a matter of convenience and discretion rather than a rule of law. The interpretation of Rule 5(1)(I) of the 2005 Rules and the ruling in the All-India Judges’ Association (3) are at issue here; the facts are not in dispute. Since the writ petition was filed under Article 32, the Supreme Court decided to consider it. The Gujarat State Judicial Service Rules, 2005’s Rule 5(1)(I) on “Merit-cum-Seniority” was upheld by the court in regards to the final Select List dated 10.03.2023 for the promotion of judicial officials in Gujarat. The court found no fault with the promotion process adopted by the High Court of Gujarat, which was consistent with the requirements for assessing legal knowledge and continued efficiency of judicial officers. The court also clarified that this judgment does not invalidate promotions granted by other High Courts based on their own rules and service requirements. As a result, the interim order was vacated, and the petition was dismissed with parties bearing their own costs.  

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Judgement Reviewed by – PRATYASA MISHRA

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Calcutta High Court Upholds Associate Professor’s Right to Promotion and Benefits, Affirms Decision on Humanitarian Grounds

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Case Name:  Dr. Tapas Kumar Mandal v. Union of India & Ors 

Case No.: WPA 24009 of 2019 

Dated: March 19, 2024 

Quorum: Justice Amrita Sinha 

 

FACTS OF THE CASE: 

In this current writ petition, the petitioner requests that the Departmental Promotion Committee, also known as “the DPC,” recommend that he be promoted. Additionally, the petitioner requests that all encashment of leave, pension, and gratuity be released, as well as a directive to the Institute’s authority to accept this recommendation. 

The Institute was being served by the petitioner. On June 30, 2010, he reached the usual age of retirement and retired from the military. The petitioner was under consideration for a promotion from Associate Professor grade E to Professor grade F before to retirement; however, the petitioner was superannuated prior to the promotion being finalised. 

While the petitioner was employed, he was the target of disciplinary action. Long after he retired, the aforementioned procedure was still ongoing. The petitioner filed a writ suit with this court, and on June 29, 2017, the Hon’ble Division Bench issued an order addressing the matter. The Hon’ble Division Bench instructed the authority to grant admissible service benefits that were denied to the petitioner as a result of the order of punishment dated June 16, 2011, and to drop the disciplinary proceeding that was started against the petitioner through the charge sheet dated August 30, 2005, while deciding how to handle the appeal. 

The petitioner filed a contempt application on June 21, 2019, claiming that he had not followed the Hon’ble Division Bench’s directive, since he had not been granted promotion. The case was eventually resolved. The petitioner made a push for advancement in the contempt motion. It was with satisfaction that the Honourable Court noted that there was no clear directive on the power to promote the petitioner.  

The petitioner has been denied promotion by the Institute, and this is the main reason for the current writ suit. 

 

CONTENTIONS OF THE PETITIONER: 

In their petition, the petitioners requested that the Departmental Promotion Committee’s (DPC) proposal be accepted by the Saha Institute of Nuclear Physics, also known as “the Institute.” His advancement from Associate Professor (grade E) to Professor (grade F) was the subject of the recommendation.  

The counsel asked for a further directive to discharge any consequential benefits, such as leave encashment, pension, and gratuity, in addition to the promotion. It was further contended that On June 30, 2010, Dr. Mandal announced his retirement from the Department of Health and Welfare. But, even after he retired, the disciplinary actions that had been started against him while he was serving persisted. 

Following the submission of a writ petition by Dr. Mandal, the Hon’ble Division Bench directed the authorities to halt the disciplinary action against him. Additionally, the court ordered that benefits for eligible service that had previously been refused be granted. In addition, Dr. Mandal was entitled to receive payment for any unpaid wage arrears resulting from a promotion awarded by the Governing Council. 

Dr. Mandal claimed in his application for contempt that he had not followed the court’s order on promotion as he had not received promotion. 

 

CONTENTIONS OF THE RESPONDENTS: 

The petitioner’s promotion claim was disputed by the respondents. They claimed that as the promotion was not completed before Dr. Mandal’s superannuation, he was not eligible to receive the benefits of the promotion. 

It was argued by the respondents that Dr. Mandal’s disciplinary actions throughout his employment were appropriate and justified. They maintained that these procedures ought to go on even after he retires and were unrelated to the promotion controversy. 

The respondents claimed they had followed the court’s ruling in order to justify their acts. They argued that, per the directive of the Honourable Division Bench, the disciplinary proceedings were dropped. But they made it clear that Dr. Mandal was not given the promotion by default. 

In reference to the salary arrears, the respondents contended that payment would only occur in the event that Dr. Mandal was promoted by the Governing Council. They insisted that there was no duty to make up any arrears up until that point. 

The promotion procedure, disciplinary actions, and following the court’s orders constituted the focal points of the respondents’ arguments, to sum up. 

 

COURT’S ANALYSIS AND JUDGMENT: 

The Court decided that it lacked the necessary knowledge to evaluate an employee’s merits. It is the responsibility of the employer to evaluate each candidate for a promotion based only on merit, and only then may the employer move forward with the decision. Since the employer has exclusive authority over the matter, it is improper to impose the Court’s opinion on top of the DPC’s.  

A promotion was given to an employee as a mean of encouraging them to raise their game so that the employer can use their experience to further the institution’s development. An employee is to be motivated to perform and deliver to the best of their abilities when they are promoted.  

The court was of the view that withholding a promotion due to valid reasons, such as the pending outcome of a criminal or disciplinary case against the candidate, is now considered an acceptable stance. Because of legal issues in this particular case, the petitioner’s promotion was denied. 

As soon as the legal proceedings came to an end and the Court issued its directive, the petitioner was superannuated by the time the case regarding their promotion was reopened. An employee was no longer eligible for advancement following superannuation. The only way to compensate an employee in such a case is to give them relief in the form of money, provided that the employee is able to demonstrate that their rejection of advancement was unlawful. 

The court determined that the employer’s decision to deny the petitioner a promotion did not appear to have been motivated by illegality, arbitrariness, bias, or malice in this particular case. The Court does not believe that the denial of the petition was incorrect for the same reason.  

Considering the aforementioned, the Court declined to take on jurisdiction over the case. The writ petition was dismissed as a result of its failure. The related applications have been closed. 

 

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Judgment reviewed by Riddhi S Bhora. 

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The Supreme Court upholds 50% marks criteria in interview set by the Punjab and Haryana High Court for the promotion as District Judges

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Case title – Dr Kavita Kamboj Vs High Court of Punjab and Haryana & Ors

Case no. – Civil Appeal Nos. 2179-2180 of 2024

Decision on – February 13, 2024

Quoram – Chief Justice of India Dr. D Y Chandrachud, Justice J B Pardiwala, Justice Manoj Misra

Facts of the case

The High Court in the year 2013 stipulated that that an aggregate of 50% marks in the written test and viva voce combined is required to render a candidate eligible for promotion. Whereas, in 2021 a meeting of the Recruitment and Promotion Committee overseeing the Superior Judicial Service acting through the States of Haryana and Punjab resolved that a candidate must secure 50% marks in the written test and 50% marks in the viva voce to be eligible for promotion. This resolution was also approved by a full court.

On 24 August 2022, the process of filling up vacancies for the post of Additional District and Sessions Judges from among the in-service officers was initiated The High Court conducted a written test which was followed by a viva voce. Based in this test, the Registrar (Judicial), on 23 February 2023, addressed a communication to the State Government recommending the names of thirteen judicial officers.

The High Court’s directive faced opposition primarily due to the absence of minimum cut-off criteria for viva voce as prescribed by the Rules. Moreover, the State of Haryana objected to the direction, citing the lack of consultation with the State Government as mandated under Article 233 of the Constitution.

The candidates filed writ petitions before the High Court to restrain the State from accepting the recommendations made by the High Court and for quashing the Resolution of 30 November 2021. The High Court by its impugned order directed the State of Haryana to take positive action in concurrence with the recommendations of February 2023.

Submission of the Parties

The Petitioners submitted that there was no rational justification for prescribing of the minimum cut-off criteria in both the suitability test and in the viva voce when appointments are made for in-service candidates

They contended that the candidates drawn for promotion in the 65% promotion quota and 10% from the in-service are from the same pool. Consequently, a minimum cut-off cannot be logically justified for the 65% promotion quota when there is no such norm for the 10%, which is filled up on the basis of the limited competitive examination.

The Counsel submitted that the absence of notice to candidates about the alteration in the criteria of eligibility and introduction of minimum qualifying marks in the viva voce has resulted in substantial injustice.

The Counsel on behalf of the State submitted that as per Article 233 the High Court ought to have consulted the State while making a modification to its own Resolution for the selection of District Judges. Thus, contended that the directives of High Court suffered from implicit subjectivity and arbitrariness.

Issue – Whether the 65% quota for selection through merit-cum-seniority under the promotion procedure is outlined by Rule 8 of the Haryana Superior Judicial Service Rules, 2007.

Court’s Analysis and Judgment

The Supreme Court ruled that since the Rules are silent on the aspect of a minimum cut-off for viva voce, the High Court was justified in prescribing such a condition through a Full Court resolution.

It also distinguished its judgment in Sivanandan CT and others v. High Court of Kerala and others on the ground that in that case, there was already a clear prescription of the rules regarding cut-off criteria. But, in the present case, the Rules were entirely silent regarding prescribing minimum eligibility to clear the test and viva which gave enough space for the High Court on the administrative side to provide the modalities of marking marks.

The petitioners had also questioned the need for an interview, pointing out that the candidates are in-service judicial officers aspiring for promotion as opposed to fresh candidates.

Rejecting this contention, the Supreme Court noted that a candidate should not just show knowledge in the suitability test but must also demonstrate the same in the course of the interview held for the promotion. The Apex Court, thus, stated that the High Court is at liberty to decide the personality and interview requisites of the in-service officers.

The Court also rejected the argument raised by the State Government relying on Article 233 and stated that the State erred in finding fault with the directives of High Court. The Court opined that since the Rules were silent, any issue between the State and the High Court should have been ironed out through a consultative process.

The Court ruled that the impugned judgment of the High Court does not suffer from any legal or other infirmity. Thereby, the Court dismissed a batch of special leave petitions filed by unsuccessful candidates and the State of Haryana and upheld a criteria set by the High Court which stipulated that judicial officers with minimum of 50% marks in the interviews to be eligible for promotion to the post of District Judges.

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Judgement Reviewed by – Keerthi K

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CSIR’s Appeal Dismissed and Overturns P&H HC’s judgement on Promotion Reversal of Two Employees by: Supreme Court

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Case Title: Director General, Council of Scientific and Industrial Research (CSIR) v. J.K. Prashar & Ors.

Case No: SLP(Civil) No(s). 8310-8311 of 2020

Decided on:  29th January, 2024

CORAM: THE HON’BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA  AND HON’BLE MR. JUSTICE SANDEEP MEHTA

Facts of the Case

The Director General of the Council of Scientific and Industrial Research (CSIR) has filed an appeal against the judgment of the High Court of Punjab and Haryana. The High Court had overturned the promotion of two employees to the position of Under Secretary, citing a violation of the Council of Scientific and Industrial Research Administrative Services (Recruitment & Promotion) Rules, 1982 (Statutory rules). CSIR contested the High Court’s decision, asserting that one of the employees lacked eligibility for the Under Secretary promotion as they had never independently performed the duties of a Section Officer. CSIR supported its claim with certificates indicating that the two employees were granted one year’s experience as Section Officers for their promotion to the Under Secretary position.

Issue

The key issue revolves around the eligibility criteria for the promotion of two employees to the position of Under Secretary at the Council of Scientific and Industrial Research (CSIR), with the Director General challenging the High Court’s decision based on the alleged violation of statutory rules.

Court’s analysis and decision

The Supreme Court declined to intervene in the Punjab and Haryana High Court’s decision, which had annulled the promotion granted by CSIR to its two employees. Justices Pamidighantam Sri Narasimha and Sandeep Mehta asserted that there were no obstacles for the promotion of respondent No.1 to the position of Under Secretary under the statutory rules. The court upheld the High Court’s reversal of the appellant’s action in denying promotion to respondent No. 1. The justices noted that the certificates indicated the utilization of their services as Section Officers on attachment, without any formal appointment to the position. Additionally, the court addressed the appellant’s argument that promotion to the post of Under Secretary should be based on merit, pointing out that the promotion of respondent Nos. 2 & 3 was also contested by the High Court. The Supreme Court, agreeing with the High Court, concluded that there were no impediments for the promotion to the post of Under Secretary under the statutory rules. Consequently, the appeals were dismissed by the Supreme Court.

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Written by- Afshan Ahmad

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Period Of Unauthorised Absence Is Treated As ‘Non- Duty’ For All Purposes Except Pension: High Court Of Kerala

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Title: G.K.Reddy Versus DCIT

 Citation: WP(C) NO.35727 OF 2019

Decided on: 19th  Of October 2023

Introduction:

Petition is to issue a writ of certiorari, quashing document to the extent to which it denies promotion to the petitioner as Senior OCIOA and promotes the  respondent as Senior OCIOA. To declare that petitioner is entitled to be promoted to the post of Senior OCIOA in the retirement vacancy of Sri.P.A. Sasidharan and that he is entitled to be promoted to the post of programmer ahead of the respondent. And to request a writ of mandamus directing other respondents to promote him to the post of programmer.

Facts:

The petitioner was appointed as Lower Division Clerk (for short ‘LDC’) and was promoted as Upper Division Clerk/Shed Clerk and thereafter as Operator cum Input/ Output Assistant (for short OCIOA). His appointment as OCIOA was on 30.12.1999 and he was included as Rank No.4 out of 13 candidates for promotion to the post of Senior OCIOA/Programmer. submitted that the  respondent who had lesser marks than the petitioner was included as rank No.12 in the list.

By virtue of the Recruitment Rules as it stood in 2016, the post of Senior OCIOA is to be filled up by promotion from the post of OCIOA with two years regular service or from Accountant with three years regular service. The petitioner contends that the  respondent who was his immediate senior in the seniority list of OCIOA was punished for unauthorised absence from 01.05.2015 to 18.05.2015.

It is contended that due to treating of the said period of 18 days as non- duty, the respondent became junior to the petitioner and it was the petitioner who ought to have been promoted as Senior OCIOA. The petitioner relying on several judgments contended that the right to be considered for promotion is a fundamental right.

in State of Punjab v. Dr.P.L. Singla [2008(3) KHC 968], it is contended that when the period of unauthorised absence is found after conducting due disciplinary proceedings and the period is specifically treated as unauthorised absence and ‘non-duty’ for all purposes except pension, then, the period cannot be taken into account for any purposes except pension.

Court’s decision and Analysis:

it is clear that the parties are in agreement that the provisions of the Fundamental Rules and the Central Civil Services (Pension) Rules and the principles contained therein apply to the service in question. there is a clear distinction between a person who holds a lein to a post and a person who is deemed to be on duty in the post. When a period of unauthorised absence is treated as ‘non- duty’ for all purposes except pension, the consequence would be that the period will not constitute a break in service for the purpose of pension and the officer will not lose his lein in the post. However, he cannot treat the period as duty for any other purpose including seniority.

The contention of the petitioner that the said period cannot be treated as duty for reckoning seniority is liable to be accepted in view of the fact that order has become final without any challenge being raised by the respondent. In the result, the order is set aside. There will be a direction to the respondents to consider the claim of the petitioner for promotion to the post of Senior OCIOA in preference to the respondent, treating the period of service of the respondent from 01.05.2015 to 18.05.2015 as non-duty for the purpose of reckoning seniority.

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Written by- Sushant Kumar Sharma

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