Supreme Court: The bench of MR Shah and CT Ravikumar, JJ has stayed the Gujarat government’s decision to promote 68 judicial officers as district judges after finding the impugned Select List dated 10.03.2023 issued by the Gujarat High Court and the subsequent Notification dated 18.04.2023 issued by the State Government granting promotion to the cadre of District Judge, as illegal and contrary to the Gujarat State Judicial Service Rules, 2005 and the Supreme Court ruling in All India Judges’ Association v. Union of India, (2002) 4 SCC 247.
Background
The present writ petition was filed before the Supreme Court seeking direction 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, Rule 5 of the Gujarat State Judicial Service Rules, 2005 and the Recruitment Notice – District Judge (65%) dated 12.04.2022.
It is important to note that the Recruitment Notice specifically mentioned that “promotion to the cadre of District Judge (65%) from amongst the Senior Civil Judges will be on the basis of principle of merit-cum-seniority and on passing a suitability test”.
The suitability test comprised of four components for assessing the suitability of a judicial officer for promotion, i.e. Written Test, Examination and Evaluation of Annual Confidential Reports for last five years, Assessment of Average Disposal of last five years of the Judicial Officer concerned and Evaluation of Judgments delivered by the Judicial Officer concerned during the period of last one year.
The Petitioners had contended that as per the merit list produced before the High Court, the candidates, who have secured much more marks were being denied promotion and the candidates /Civil Judge (Senior Division), having less marks / leas meritorious were being promoted. 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.
Merit-cum-seniroty versus seniority-cum-merit
In the present case, the High Court had after conducting the written test, which is one of the components to assess the suitability, the High Court had considered the merits only for the purpose of achieving benchmark and thereafter has switched to the principle of seniority-cum-merit.
The Supreme Court could 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. Holding that, 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 and has adopted the wrong method, the Supreme Court explained,
“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.”
Notice issued during pendency of the present petition before the Supreme Court
Taking into consideration the fact that the State Government has issued the impugned Notification dated 18.04.2023 during the pendency of the present writ petition and after the receipt of the notice issued by the Court in the present proceedings, the Court observed that the State Government could have waited till the next date of hearing which was on 28.04.2023.
Hence, considering that the respective promotees have not assumed their posting on the promotional post and as such are sent for training, the Court stayed the further implementation and operation of the Select List dated 10.03.2023 issued by the High Court of Gujarat and the subsequent Notification dated 18.04.2023 issued by the State Government.
Resultantly, the respective promotees will for now be sent to their original posts which they were holding prior to their promotion vide Select List dated 10.03.2023 and Notification dated 18.04.2023.
The Court, however, clarified that the 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. 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 Court has suggested that the matter be now heard by a Bench headed by the Chief Justice of India. The matter will now be listed for final hearing on 08.08.2023.
[Ravikumar Dhansukhlal Maheta v. High Court of Gujarat, 2023 SCC OnLine SC 616, decided on 12-05-2023]
*Judgment Authored by Justice MR Shah
Advocates who appeared in this case :
For Writ petitioners: Senior Advocate R. Basant and Advocate Purvish Jitendra Malkan;
For State: ASG S.V. Raju and Advocate Deepanwita Priyanka;
For Respective promotes: Senior Advocates Dushyant Dave, Meenakshi Arora.
this clearly shows how Gujarat govt wants to promote its own whims and fancies