Ravikumar Dhansukhlal Maheta & Anr. v. Issue for Consideration

12 C. SUBMISSIONS ON BEHALF OF THE PETITIONERS .......... 14 D. SUBMISSIONS ON BEHALF OF THE HIGH COURT .......... 16 E. SUBMISSIONS ON BEHALF OF THE PROMOTED CANDIDATES ......................................................................... 17 F. POINTS FOR DETERMINATION ........................................... 20 G. ANALYSIS .............................................................................. 20 i. Maintainability of the present Writ Petition under Article 32 ........................................................................... 20 * Ed. Note: Pagination as per the original Judgment. Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1084 [2024] 5 S.C.R. ii. The Legislative History and Scheme of the Gujarat State Judicial Service Rules, 2005 ............................... 23 a. Shetty Commission on Judicial Reforms and the Decision of this Court in All India Judges’ Association (3) ................................................................................ 23 b. Relevant Statutory Provisions of the Gujarat State Judicial Service Rules, 2005 ...................................... 34 iii. Evolution of the Principles of ‘Merit-cum-Seniority’ and ‘Seniority-cum- Merit’ in Service Jurisprudence 38 a. Concept of Promotion: The meaning and origin of seniority and merit as parameters .............................. 38 b. Principle of ‘Merit-cum-Seniority’ and ‘Seniority-cum- Merit’ in Service Jurisprudence ................................... 44 c. ‘Hybrid-Dynamic Mode of Promotion’ in Service Jurisprudence ............................................................... 56 d. High Court as a custodian of the District Judiciary under Article 235 of the Constitution .......................... 64 iv. What is ‘Merit-cum-Seniority’ for the purpose of Promotion to the cadre of District & Sessions Judges? 67 a. Intention behind the decision in All India Judges’ Association (3) .............................................................. 67 H. FEW SUGGESTIONS TO MAKE THE SUITABILITY TEST MORE MEANINGFUL ............................................................ 80 I. CONCLUSION ........................................................................ 81

Two judicial officers of the rank of Civil Judge (Senior Division) governed by the Gujarat State Judicial Service Rules, 2005 (for short, the “2005 Rules”) have invoked the jurisdiction of this Court under Article 32 of the Constitution. Their grievance against the High Court of Gujarat is that it erroneously applied the principle of ‘Seniority-cum-Merit’ in the recruitment undertaken by it in the year 2022 for promotion of Civil Judges (Senior Division) to the post of Additional District Judge against 65% quota, though Rule 5(1) of the 2005 Rules stipulates that the promotion shall be based on the principle of ‘Merit-cum-Seniority’. In other words, it is 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 Digital Supreme Court Reports [2024] 5 S.C.R. 1085 the final Select List strictly in accordance with the seniority of the candidates. This according to the petitioners is nothing but ‘Seniority- cum-Merit’. A. FACTUAL MATRIX

The High Court of Gujarat issued an advertisement/recruitment notice dated 12.04.2022 notifying a total of 68 vacancies in the cadre of District Judges for promotion of Civil Judges (Senior Division) against the 65% quota on the basis of ‘Merit-cum-Seniority’ and passing a Suitability Test as envisaged under Rule 5(1)(I) of the 2005 Rules. The said advertisement/recruitment notice reads as under: - “HIGH COURT OF GUJARAT AT SOLA, AHMEDABAD Website: www.gujarathighcourt.nic.in AND https://hc- ojas.gujarat.gov.in NO.RC/1250/2022 RECRUITMENT NOTICE - DISTRICT JUDGE (65%) PROMOTION TO THE CADRE OF DISTRICT JUDGE (65%) FROM AMONGST THE SENIOR CIVIL JUDGES ON THE BASIS OF PRINCIPLE OF MERIT-CUM-SENIORITY AND PASSING A SUITABILITY TEST.

1. VACANCIES AND PAY-SCALE : (i) In view of the guidelines of the Hon’ble Supreme Court in the case of Malik Mazhar Sultan & Anr. Vs. UP Public Service Commission & Ors. and The Gujarat State Judicial Service Rules, 2005, as amended from time to time, The High Court of Gujarat has decided to fill up 68 (53+15) vacancies in the cadre of District Judges (65%) by promotion from amongst us the Senior Civil Judges (including ad-hoc Additional District Judges) having not less than two years of qualifying service in that cadre as on 25/03/2022, in the pay-scale of Rs. 51650-63260 plus Allowances as admissible under the Rules. *15 unfilled vacancies of 10% quota of year-2020 are to be filled up by regular promotion in view of Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1086 [2024] 5 S.C.R. Judgment dated 09.12.2021 of the High Court of Gujarat (Coram: - Honourable Ms. Justice Sonia Gokani and Honourable Mr. Justice Rajendra M. Sareen delivered in SCA/7915/2020 with SCA/13631 & 13458/2020 and by operation of proviso to Rule 5(1)(ii) of the Gujarat State Judicial Service Rules, 2005 amended by Notification dated 23.06.2011. (ii) The High Court reserves its right to alter the number of vacancies. (iii) The List showing eligible Senior Civil Judges (including ad-hoc Additional District Judges) included in the zone of consideration for being considered for promotion to the cadre of District Judges (65%) is placed on the High Court website and HC-OJAS Portal along with this Notice.

2. SCHEME FOR PROMOTION : Following are the Four Components for assessing the suitability of a Judicial Officer for promotion. Sr. No

Components of Suitability Test Marks Written Test (Objective Type - MCQs) Examination and Evaluation of Annual Confidential Reports for last five years Assessment of Average Disposal of last five years of the Judicial Officer concerned. Evaluation of Judgments delivered by the Judicial Officer concerned during the period of last one year.* 100 20 20 60 *Due to unprecedented time of COVID-19 pandemic in Year 2020 & 2021, the Subordinate Courts in the state were not functioning regularly. Hence, this time round, the Hon’ble Committee has decided for the instant Promotion Process to call upon the requisite Four Judgments rendered by the Officer concerned during the period between 01/01/2020 to 31/12/2021. However, this should not be treated as a precedent in upcoming Promotion Process. Digital Supreme Court Reports [2024] 5 S.C.R. 1087

Written Test (Objective Type - MCQs) : (i) The Written Test (Objective Type - MCQs) shall consist of 01 (One) Paper of 100 Marks of duration of 02 Hours consisting of Objective Type Multiple Choice Questions (MCQs) each of 01 Mark. There will be no Negative marking system. The subject would be as under: Sr. No Subject 1.

3. Legal Knowledge [Detailed Syllabus attached herewith at Annexure-‘A’] Administrative Knowledge [GCS Rules 2002, Civil Manual, Criminal Manual, etc.] General Knowledge & Aptitude Test [Test of Reasoning, Numerical & Mental Ability & Psychological Test, etc.] Marks 50 25 25 (ii) The Written Test (Objective Type - MCQs) shall be conducted on OMR Sheet* or by any other mode that would be decided by the High Court later on. *The OMR Sheets of the Written Test (Objective Type - MCQs) will be assessed/evaluated by the Computer as per entries made on OMR Sheet. As the evaluation is being done on the Computer by Scanning, there is no human intervention and hence, queries relating to rechecking of the OMR Sheets, subsequent to the Written Test (Objective Type - MCQs), will not be entertained by the High Court (iii) The Language of the Question Paper will be English. (iv) Out of the abovementioned Four Components of Suitability Test, the Written Test (Objective Type - MCQs) will be conducted first. Nonetheless mere passing of Written Test (Objective Type - MCQs) by the Judicial Officers would not give him/her right of having secured the position in the Select List. It will be subject to passing of other 03 (Three) components as well. (v) ACR, Disposal and Judgments of only those Judicial Officers who will secure minimum 40% Marks in Written Test (Objective Type - MCQs), will be called for after the declaration of the result of Written Test (Objective Type - MCQs). Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1088 [2024] 5 S.C.R.

4. ELIGIBILITY FOR PROMOTION : The Judicial Officer, who obtains minimum 40% Marks in each Component and minimum 50% Marks in aggregate in the Grand Total of all Four Components, shall be eligible for being included in the Select List for promotion.

GENERAL INSTRUCTIONS : (i) The date and venue of the Written Test (Objective Type - MCQs) will be declared by the High Court in due course. (ii) The eligible Judicial Officers may download their E-call letter from the High Court websites viz. www. gujarathighcourt.nic.in and https://hc-ojas.gujarat.gov.in, as and when the same is made available by the High Court on the aforesaid websites. (iii) The Judicial Officer attending the Written Test (Objective Type - MCQs) may be treated as on duty and may be admissible for TA/DA as applicable. (iv) Result of the Written Test (Objective Type - MCQs) will be made available on the High Court websites and/or by any other mode that may be decided by the High Court. (v) The Marks of Written Test (Objective Type - MCQs) would be communicated to all the Judicial Officers, whereas, the Marks of other 03 Components along-with the Total Marks obtained by the concerned, would be provided to only those who qualify in the Written Test (Objective Type - MCQs).

3. The High Court along with the aforesaid advertisement/recruitment notice, also issued a list of 205 judicial officers in the cadre of Civil Judge (Senior Division) i.e., the feeder cadre, falling under the ‘Zone of Consideration’ for the aforesaid purpose of filling up the vacancies in the cadre of District Judges as against 65% quota.

4. The High Court prepared the list of 205 candidates falling within the zone of consideration by including the senior-most Civil Judges (Senior Division) not exceeding three-times the notified vacancies. In other words, the zone of consideration only included the 205 senior-most Civil Judges (Senior Division).

5. As per the advertisement/recruitment notice dated 12.04.2022, the suitability of the aforesaid 205 candidates falling within the zone of consideration, for the purpose of promotion, was to be assessed on the basis of four components which are being reproduced hereunder: - Sr. No. Components of Suitability Test

4. Written Test (Objective Type – MCQs) Examination and Evaluation of Annual Confidential Reports for last five years. Assessment of Average Disposal of last five years of the Judicial Officer concerned. Evaluation of Judgments delivered by the Judicial Officer concerned during the period of last one year. Marks 100 20 20 60 Digital Supreme Court Reports [2024] 5 S.C.R. 1091

The aforesaid advertisement/recruitment notice dated 12.04.2022 further stipulated that all those judicial officers who obtain a minimum 40% marks in each of the abovementioned component and a minimum aggregate of 50% marks in all four components shall be eligible for being included in the Select List for promotion.

Pursuant to the aforesaid, the Written Test (Objective Type – MCQs) was conducted by the High Court and out of 205 candidates, a total of 175 judicial officers cleared the written test i.e., all those who were able to secure a minimum of 40% marks. Thereafter, the High Court called for the month-wise list of the judgments disposed of and the annual confidential reports (ACRs) of all 175 candidates who qualified.

After the evaluation of the ACRs, judgments and disposal rates, a total of 149 judicial officers were found to be eligible for promotion as they had secured a minimum 40% marks in each of the abovementioned component and a minimum aggregate of 50% marks in all the four components of the suitability test.

The High Court thereafter proceeded to prepare the final Select List dated 10.03.2023 wherein the seniormost 68 candidates amongst the aforementioned 149 eligible candidates were given promotion to the post of District Judge.

In such circumstances referred to above, the petitioners are here before this Court with the present petition under Article 32 of the Constitution. i. Method of Promotion followed by the High Court of Gujarat.

For the better adjudication of the issues involved in the case at hand, it would be necessary to delineate the step-wise process of promotion undertaken by the High Court of Gujarat for the purpose of preparing the final Select List.

The process, as explained by the High Court in its counter affidavit and additional affidavit is as under: -

1. Total number of Civil Judges (Senior Division) in Gujarat. 444

2. Civil Judges (Senior Division) who fulfilled the eligibility criteria of a minimum of two-years of qualifying service. 417 Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1092 [2024] 5 S.C.R.

3. Senior-most of the Civil Judges (Senior Division) falling under the zone of consideration as per 1:3 ratio. 205

4. Civil Judges (Senior Division) who appeared for the Suitability Test (MCQ’s with no negative marking). (Seven candidates chose not to appear for the suitability test) 198

5. Civil Judges (Senior Division) who secured 40% marks in the Suitability Test (MCQs with no negative marking). 175

6. Total number of Civil Judges (Senior Division) who secured total of 50% marks and a minimum 40% marks in all four components being the Written Test, evaluation of ACRs, assessment of average disposal and evaluation of Judgments. 149

7. Select List as per the notified vacancy prepared on 68 the basis of seniority. B. REFERENCE ORDER

The present writ petition was earlier heard by a two-Judge Bench of this Court wherein it was prima facie observed that in All India Judges’ Association (3) v. Union of India & Ors. reported in (2002) 4 SCC 247 while emphasizing on the need for merit-based criteria for promotion in the cadre of Higher Judicial Service, this Court had held that the promotion to the post of District Judge shall be on the basis of ‘Merit-cum-Seniority’.

This Court further observed that the principle of ‘Merit-cum-Seniority’ lays greater emphasis on merit, and seniority plays a less significant role. Therefore, seniority should be considered only when merit and ability are equal.

This Court prima facie opined that the final Select List dated 10.03.2023 could be said to be in contravention of the principle of ‘Merit-cum-Seniority’ as envisaged in the rules and the decision in All India Judges’ Association (3) (supra). However, in view of the importance of the matter and the observations made in All India Judges’ Association (3) (supra), the matter was referred to the Bench of Hon’ble the Chief Justice of India. The relevant observations read as under: - Digital Supreme Court Reports [2024] 5 S.C.R. 1093 “8.1 It is also required to be noted that even as per the Recruitment Notice – District Judge (65%), the promotion to the cadre of District Judge (65%) from amongst the Senior Civil Judges shall be on the basis of principle of merit-cum-seniority and passing a suitability test. The suitability of a judicial officer for promotion is also provided in the Recruitment Notice, which consists of four components reproduced hereinabove. Thus, as per the statutory Rules and even as per the Recruitment Notice, the promotion to the cadre of District Judge (65%) shall be on the basis of principle of merit-cum-seniority and passing a suitability test. At this stage, it is required to be noted that the Rules, 2005 further amended in the year 2011, have been framed by the High Court pursuant to the directions issued by this Court in the case of All India Judges’ Association and Ors. (supra). It is required to be noted that prior to the decision of this Court in the case of All India Judges’ Association and Ors. (supra), the promotion in the cadre of Higher Judicial Service, i.e., District Judges and Additional District Judges were given on the basis of principle of seniority-cum- merit. Emphasising the need for merit-based criteria for promotion in the cadre of Higher Judicial Service, i.e., District Judges and Additional District Judges [...] xxx xxx xxx

8.8 The law on the principle of “merit-cum-seniority is by now, settled by this Court in a catena of decisions. As observed, while applying the principle of “merit-cum- seniority”, greater emphasis is given on merit and ability and seniority plays a less significant role. As observed, while applying the principle of “merit-cum-seniority”, the seniority is to be given weight only when merit and ability are approximately equal. xxx xxx xxx

9. Thus, we are more than satisfied that the impugned Select List dated 10.03.2023 issued by the High Court and the subsequent Notification dated 18.04.2023 issued by the State Government granting promotion Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1094 [2024] 5 S.C.R. 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. (supra). Therefore, we are more than prima facie satisfied that the same as such are not sustainable. Though, we were inclined to dispose of the writ petition finally, however, as Shri Dushyant Dave, learned Senior Advocate appearing on behalf of some of the respondents - promotees has prayed not to dispose of the writ petition finally and, therefore, may consider the question of interim relief, we are not disposing of the writ petition finally. […]

10. Looking to the importance of the matter and the observations made by this Court in the case of All India Judges’ Association and Ors. (supra), pursuant to which the High Court has amended the Rules and the Regulations, we are of the opinion that let the matter be heard by the Bench headed by Hon’ble the Chief Justice of India, however, subject to and after obtaining appropriate orders from the Hon’ble the Chief Justice of India on the administrative side. The Registry is directed to notify the present writ petition for final hearing on 08.08.2023.” (Emphasis supplied)

Accordingly, the present writ petition came to be referred to this Bench and was accordingly taken up for hearing. C. SUBMISSIONS ON BEHALF OF THE PETITIONERS

Mr. P.S. Patwalia, learned Senior Counsel appearing for the petitioners submitted that the statutory rules as well as the decision in All India Judges’ Association (3) (supra) stipulate that promotion to the cadre of District Judges against the 65% quota has to be on the basis of the principle of ‘Merit-cum-Seniority’. Although the High Court has used the nomenclature ‘Merit-cum-Seniority’ yet the method ultimately followed for the purpose of promotion to the cadre of District Judge is nothing but ‘Seniority-cum-Merit’.

He further submitted that the High Court in its methodology subjected all eligible candidates in the feeder cadre to a process of assessment of a specified minimum necessary merit and then proceeded to Digital Supreme Court Reports [2024] 5 S.C.R. 1095 promote the candidates found possessing the minimum requisite merit strictly in the order of seniority. He submitted that the said method is nothing but ‘Seniority-cum-Merit’.

Finally, Mr. Patwalia submitted that where promotion is on the basis of ‘Merit-cum-Seniority’, seniority has to be considered only in the event merit is equal in all respects. In other words, seniority should be considered only if there is a tie between the candidates on their individual merit.

Mr. R. Basant, 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.

He further submitted that by applying seniority at the last stage of preparing the final Select List, the principle of ‘Merit-cum-Seniority’ has been given a go-by and instead ‘Seniority-cum-Merit’ has been applied.

He also submitted that in cases of promotion on the principle of ‘Merit-cum-Seniority’, there is always an element of comparative merit and the promotion must be as per the inter-se merit of the persons who obtained the minimum marks. In this regard, strong reliance has been placed on the decisions of this Court in Rupa Rani Rakshit & Ors. v. Jharkhand Gramin Bank reported in (2010) 1 SCC 345 and in Dr. Kavita Kamboj v. High Court of Punjab and Haryana & Ors. reported in 2024 SCC OnLine SC 254.

He further submitted that ‘Merit-cum-Seniority’ is not a vague literary term, but carries a specific meaning in service jurisprudence. He submitted that the decision in All India Judges’ Association (3) (supra) consciously substituted the earlier criteria of ‘Seniority-cum- Merit’ with ‘Merit-cum-Seniority’.

In the last, Mr R. Basant submitted that this Court in a plethora of its decisions has consistently held that where a minimum benchmark is laid down and candidates having secured the minimum required marks are promoted on the basis of the seniority irrespective of the individual marks secured by them, it is an instance of ‘Seniority- cum-Merit’. Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1096 [2024] 5 S.C.R. D. SUBMISSIONS ON BEHALF OF THE HIGH COURT

Mr. V. Giri, learned Senior Counsel appearing for the High Court of Gujarat submitted that ‘Merit-cum-Seniority’ should not be conflated with Merit and that there is a clear distinction between the two concepts. He submitted that whilst merit is concerned only with the grade/credit of the candidate, the former not only checks the merit but also lays emphasis on seniority.

He submitted that if the interpretation of ‘Merit-cum-Seniority’ as canvassed 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’.

He further submitted that doing so would have a far-reaching effect. The same would result 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 and would completely do away with the fine distinction between the two modes of promotion.

Finally, Mr. Giri submitted that the High Court has been following the same methodology since 2011. E. SUBMISSIONS ON BEHALF OF THE PROMOTED CANDIDATES

Mr. Dushyant Dave, learned Senior Counsel appearing for judicial officers who found place in the final Select List 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 submitted that in All India Judges’ Association (3) (supra) the principle of ‘Merit-cum-Seniority’ and Suitability Test was provided only to objectively ascertain a minimum standard of merit for the purpose of promotion to the Higher Judicial Services in the cadre of District & Sessions Judge.

Mr. Dave submitted that merely having scored a few marks more than the other candidates is neither an indication of being tangibly more meritorious nor a cogent reason to completely negate the length of service of the senior candidates. He submitted that if the Digital Supreme Court Reports [2024] 5 S.C.R. 1097 interpretation as canvassed by the petitioners is accepted, it would cause undue hardship and result in unjust treatment to his clients whose names were included in the final Select List, as they would end up losing their precious years of seniority in service only on account of having obtained a few marks lesser compared to the petitioners.

Ms. Mayuri Raghuvanshi, learned Counsel appearing for some of the respondents submitted that the principle of ‘Merit-cum-Seniority’ does not mean that the length of service or seniority has no relevance. She submitted that the marks secured in the written examination and other tests are not indicative of merit as the marks may be obtained even without possessing other important qualities such as practical experience or by cramming.

She further submitted that the various decisions on the principle of ‘Merit-cum-Seniority’ as relied upon by the petitioners do not deal with judicial services and have not been delivered in the context of promotion of Civil Judges (Senior Division) to the cadre of District Judge. It was submitted that ‘Merit-cum-Seniority’, as stipulated in the 2005 Rules, should be read in line with the observations in All India Judges’ Association (3) (supra).

Learned counsel further submitted that the reliance placed by the petitioners on the process of promotion followed by the High Court of Jharkhand and High Court of Calcutta is absolutely misplaced, as the statutory rules therein are not pari-materia to the 2005 Rules.

Finally, Ms. Raghuvanshi submitted that her clients whose names have been included in the final Select List, had also participated in the promotion process undertaken in the year 2020. Although her clients had scored higher marks compared to the other candidates in the 2020 recruitment process, yet they were not promoted as they were comparatively junior to the other officers. She submitted that the process which was followed by the High Court applying the principle of ‘Merit-cum-Seniority’ has been followed consistently since 2011. She submitted that deviating from the process as followed by the High Court will result in inequitable and unjust repercussions, as her clients who lost out on promotions in the previous recruitment process because of being relatively junior would again end up losing out on their promotions in this process despite being relatively senior. Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1098 [2024] 5 S.C.R. F. POINTS FOR DETERMINATION

Having heard the learned counsels appearing for the parties and having gone through the materials on record, the two pivotal questions that fall for our consideration are as under: - I. What is the scope of principle of the ‘Merit-cum-Seniority’ in service jurisprudence; and II. 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) (supra). G. ANALYSIS i. Maintainability of the present Writ Petition under Article 32.

At the outset, a preliminary objection was raised as regards the maintainability of the writ petition under Article 32 of the Constitution, on the ground that the petitioners have an efficacious alternative remedy available to them under Article 226 of the Constitution.

In Mohammed Ishaq v. S. Kazam Pasha & Anr. reported in (2009) 12 SCC 748 this Court held that where Article 32 has been invoked, even where an alternative remedy exists, relegating the parties to avail the same is discretionary and a matter of convenience, and the same by no stretch restrains this Court to entertain the same. The relevant observations read as under: -

23. On the preliminary issue of maintainability of the present writ petition, it is well-settled position of law that simply because a remedy exists in the form of Article 226 of the Constitution for filing a writ in the High Court concerned, it does not prevent or place any bar on an aggrieved person to directly approach the Supreme Court under Article 32 of the Constitution. It is true that the Court has imposed a self-restraint in its own wisdom on the exercise of jurisdiction under Article 32 where the party invoking the jurisdiction has an effective, adequate alternative remedy in the form of Article 226 of the Constitution. However, this Digital Supreme Court Reports [2024] 5 S.C.R. 1099 rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than a rule of law. At any rate it does not oust the jurisdiction of this Court to exercise its writ jurisdiction under Article 32 of the Constitution. We, therefore, reject the preliminary objection raised and proceed to examine the contentions raised in the writ petition on merits.

(Emphasis supplied)

In Maharashtra State Judicial Service Assn. & Ors. v. High Court of Judicature at Bombay & Ors. reported in (2002) 3 SCC 244 this Court held that where the issue pertained only to the interpretation of the relevant rules and there was no dispute as regards the facts of the case by either side, the same could be entertained under Article 32 even though the alternative remedy under Article 226 was available. The relevant observations read as under: -

1. [...] On behalf of the direct recruit respondents, a preliminary objection had been taken by Shri M.L. Verma that the dispute being one of inter se seniority within a cadre, the Court ought not to entertain a petition under Article 32, as the parties were entitled to approach the High Court under Article 226 against the administrative decision of the Bombay High Court. We have no doubt in our mind that an administrative decision of the Court could be assailed by filing a writ petition under Article 226 in the High Court itself, but this Court having entertained the petition under Article 32 by issuing rule on 8-12-2000 and the dispute being one which centres around interpretation of the relevant Rules and both the direct recruits and the promotees having made their stand known, and further, no disputed question on facts having arisen, we do not think it appropriate to direct the promotees to approach the High Court in the first instance. We, therefore, heard the parties at length on the merits of the matter.

(Emphasis supplied)

From the aforesaid, it is clear that the availability of an alternative remedy does not in any manner affect the maintainability of the writ Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1100 [2024] 5 S.C.R. petition under Article 32 of the Constitution. The rule behind relegating a party to first avail the alternative remedy before knocking the doors of this Court is a rule of self-restraint that is exercised by this Court as a matter of convenience.

Further, wherever the facts of the case are not in dispute, and the issue involves the interpretation of rules which are of significant importance having a far-reaching effect, it would be a fit case for this Court to exercise its discretion and entertain the writ petition under Article 32 even if there is an alternative remedy available.

It is contended by the petitioners that they had to come before this Court invoking Article 32 of the Constitution instead of Article 226 because the impugned final Select List dated 10.03.2023 which is the subject matter of challenge had been ratified by the High Court in its Full Court meeting. We are not impressed with such a submission as the High Court on its judicial side can always review any decision or action taken by it on its administrative side. It would be erroneous to say that if any decision taken by the High Court on its administrative side is ultimately challenged on any legal ground on its judicial side, then the High Court may not undertake judicial review of such administrative decision dispassionately.

In the present case, the facts are not in dispute either at the end of the petitioners herein or at the end of the High Court or the respondents. Moreover, since the issues involve not just the interpretation of Rule 5(1)(I) of the 2005 Rules but also the decision of this Court in All India Judges’ Association (3) (supra), we are of the considered opinion that the petition under Article 32 deserves to be entertained. ii. The Legislative History and Scheme of the Gujarat State Judicial Service Rules, 2005. a. Shetty Commission on Judicial Reforms and the Decision of this Court in All India Judges’ Association (3).

The subject matter of the controversy with which we are concerned in the present litigation is with regard to the scheme and policy for promotions in the Higher Judicial Services, particularly to the cadre of Additional District & Sessions Judge. The genesis of the same can be traced back to the decision of this Court in All India Judges’ Association (3) (supra). Digital Supreme Court Reports [2024] 5 S.C.R. 1101

The First Law Commission of India under the Chairmanship of Shri M.C. Setalvad in its 14th Report in the year 1958 expressed concerns over the growing problem of finding capable and competent judicial officers for the District Judiciary. It reported that most of the difficulties brought to the notice of the Commission had their origin in the inefficiency or inexperience of the judicial personnel on account of the falling standards in their recruitment. The relevant observations read as under: - “2. Subordinate Judiciary Personnel

2. As has been said repeatedly elsewhere, the problem of efficient judicial administration, whether at the level of the superior courts or the subordinate courts, is largely the problem of finding capable and competent judges and judicial officers. Delays in the disposal of cases and the accumulation of arrears are in a great measure due to the inability of the judicial officers to arrange their work methodically and to appreciate and apply the provisions of the Procedural Codes. […] xxx xxx xxx

4. As we shall point out later, the problem has since grown in dimensions, because there is unmistakable testimony that the standards of the judicial officers recruited from the bar and other sources have, during recent years, fallen in a substantial degree for various reasons. That has been almost the unanimous view expressed by the witnesses before us. It is thus obvious that no scheme of reform of judicial administration will be effective or worth- while, unless the basic problem of providing trained and capable judicial personnel is satisfactorily solved. Before we can suggest adequate measures for raising the level of judiciary, we have to examine the causes which have led to the decline in its efficiency.” (Emphasis supplied)

Accordingly, the Law Commission made a slew of recommendations in order to deal with the afore-stated problems. The Law Commission, inter-alia, recommended devising a more robust mechanism for Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1102 [2024] 5 S.C.R. recruitment and in-service training of judicial officers with a view to improve their calibre. It further recommended that a third source of recruitment to the Higher Judiciary i.e., the cadre of District & Sessions Judge, should be created. It stated that this third category should be recruited purely by way of a competitive examination, and recruitment through the existing two categories i.e., by promotion and from the Bar should continue as per the existing process. The Law Commission was of the view that the new avenue as recommended would enlarge the field of selection and bring in Judicial Officers of high calibre and brilliance. The relevant observations read as under: -

10. If we are to improve the personnel of the subordinate judiciary, we must first take measures to extend or widen our field of selection so that we can draw from it really capable persons. A radical measure suggested to us was to recruit the judicial service entirely by a competitive test or examination. It was suggested that the higher judiciary could be drawn from such competitive tests at the all-India level and the lower judiciary can be recruited by similar tests held at State level. Those eligible for these tests would be graduates who have taken a law degree and the requirement of practice at there Bar should be done away with. Such a scheme, it was urged, would result in bringing into the subordinate judiciary capable young men who now prefer to obtain immediate remunerative employment in the executive branch of Government and in private commercial firms. The scheme, it was pointed out, would bring to the higher subordinate judiciary the best talent available in the country as a whole, whereas the lower subordinate judiciary would be drawn from the best talent available in the State.

(Emphasis supplied)

In All India Judges’ Association (1) v. Union of India reported in (1992) 1 SCC 119, the issues pertaining to the working conditions of the District Judiciary throughout the country came up for consideration, including the issues pertaining to uniformity in the judicial cadres in different States and Union Territories, and for adequate provisions for in-service training and promotion. Digital Supreme Court Reports [2024] 5 S.C.R. 1103

This Court took notice of the aforesaid recommendations that were made by the First Law Commission of India in its Fourteenth Report in 1958, particularly with respect to improving the standard of the District Judiciary and widening the field of selection and promotion to the Higher Judiciary in a balanced manner so as to induct capable and efficient persons as Judicial Officers in the District Judiciary.

While this Court acknowledged that the creation of an All-India Judicial Service as proposed by the Law Commission may undermine the control of the High Courts over the District Judiciary, yet at the same time this Court suggested to the Union of India to undertake appropriate steps towards the implementation of the recommendations made by the Law Commission, as far as feasible, at the earliest, and directed the Central Government to consider setting up an All-India Judicial Service. The relevant observations read as under: - “11. [...] We are of the view that the Law Commission’s recommendation should not have been dropped lightly. There is considerable force and merit in the view expressed by the Law Commission. An All India Judicial Service essentially for manning the higher services in the subordinate judiciary is very much necessary. The reasons advanced by the Law Commission for recommending the setting up of an All India Judicial Service appeal to us.

12. Since the setting up of such a service might require amendment of the relevant articles of the Constitution and might even require alteration of the Service Rules operating in the different States and Union territories, we do not intend to give any particular direction on this score particularly when the point was not seriously pressed but we would commend to the Union of India to undertake appropriate exercise quickly so that the feasibility of implementation of the recommendations of the Law Commission may be examined expeditiously and implemented as early as possible. It is in the interest of the health of the judiciary throughout the country that this should be done. xxx xxx xxx

We would now briefly indicate the directions we have given in the judgment: Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1104 [2024] 5 S.C.R. (i) An All India Judicial Service should be set up and the Union of India should take appropriate steps in this regard. [...]” (Emphasis supplied)

Thereafter, review petitions came to be filed against the decision in All India Judges’ Association (1) (supra) seeking certain modifications and clarifications in respect of the directions that were issued by this Court. The review petitions came to be disposed in All India Judges’ Association (2) v. Union of India reported in (1993) 4 SCC 288, wherein inter-alia it was clarified that although the direction for setting up an All-India Judicial Service was only recommendatory, yet in view of the necessary and expedient nature of the recommendations made by the Law Commission, the Central Government should take an earnest initiative in realizing the same.

Pursuant to the directions issued by this Court in All India Judges’ Association (1) (supra) and All India Judges’ Association (2) (supra), the First National Judicial Pay Commission under the Chairmanship of Hon’ble Mr. Justice K.J. Shetty (Former Judge of this Court), more popularly known as the “Shetty Commission on Judicial Reforms” came to be constituted. After due deliberations, the Shetty Commission submitted its report on 11.11.1999, and responses to the same were filed by the States and Union Territories.

The recommendations made in the Shetty Commission’s report along with the responses of the States/Union Territories were taken into consideration and the same ultimately culminated into the decision of this Court in All India Judges’ Association (3) (supra). (1) In the said decision, this Court, inter-alia, accepted the recommendation of the Shetty Commission that 75% of the posts in the cadre of District & Sessions Judge shall be filled by promotion from Civil Judge (Senior Division) and 25% of the posts shall be filled by direct recruitment from the Bar by way of a competitive examination encompassing a written examination and viva. (2) At the same time, this Court was of the view that when it comes to appointment by promotion to the cadre of District & Sessions Judge, (i) some incentive for improving must exist for the judicial officers and (ii) a certain minimum standard ought Digital Supreme Court Reports [2024] 5 S.C.R. 1105 to be maintained in the cadre of District & Sessions Judge and further, there must be an objective method for testing the suitability of a Judicial Officer for promotion.

28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be: (1) (a) 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test; (b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years’ qualifying service; and (c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts. (2) Appropriate rules shall be framed as above by the High Courts as early as possible.

29. [...] As a result of the decision today, there will, in a way, be three ways of recruitment to the Higher Judicial Service. The quota for promotion which we have prescribed is 50 per cent by following the principle “merit-cum-seniority”, 25 per cent strictly on Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1108 [2024] 5 S.C.R. merit by limited departmental competitive examination and 25 per cent by direct recruitment. [...]” (Emphasis supplied)

Thereafter, in Malik Mazhar Sultan & Anr. (1) v. U.P. Public Service Commission reported in (2006) 9 SCC 507, this Court underscored the importance for filling up judicial vacancies on time and directed the High Courts to undertake necessary steps towards fixing a timeline for determining vacancies, issuing advertisements, conducting examinations, interviews and declaring results for final appointment. The relevant observations read as under: -

23. It is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments. For all these and other steps, if any, it is necessary to provide for fixed time schedule so that the system works automatically and there is no delay in filling up of vacancies. [...]

(Emphasis supplied)

The aforesaid was followed by the decision in All India Judges’ Association (4) v. Union of India reported in (2010) 15 SCC 170, wherein this Court took note of the fact that various posts of the cadre of District & Sessions Judge earmarked for the 25% promotional quota strictly on the basis of merit were lying vacant on account of insufficiency of candidates or their inability to clear the competitive exam. In such circumstances, it was directed that the 25% promotional quota, to be filled on the basis of Merit, shall be reduced to 10% of the cadre strength, and the 50% promotional quota to be filled by ‘Merit-cum-Seniority’ shall be increased to 65% of the total seats. The relevant observations read as under: - “6. Having regard to various strategies available, we are of the considered view that suitable amendment is to be made for this 25% quota of limited departmental competitive examination. We are also of the view, with the past experience, that it is desirable that 25% quota be reduced to 10%. We feel so as the required result, which Digital Supreme Court Reports [2024] 5 S.C.R. 1109 was sought to be achieved by this process could not be achieved, thus it calls for modification.

7. Thus, we direct that henceforth only 10% of the cadre strength of District Judges be filled up by limited departmental competitive examination with those candidates who have qualified service of five years as Civil Judge (Senior Division). Every year vacancies are to be ascertained and the process of selection shall be taken care of by the High Courts. If any of the post is not filled up under 10% quota, the same shall be filled up by regular promotion. In some of the High Courts, process of selection of these 25% quota by holding limited departmental competitive examination is in progress, such process can be continued and the unfilled seats, if meritorious candidates are available, should be filled up. But if for some reason the seats are not filled up, they may be filled up by regular promotion and apply the usual mode of promotion process. Thus we pass the following order.

8. Hereinafter, there shall be 25% of seats for direct recruitment from the Bar, 65% of seats are to be filled up by regular promotion of Civil Judge (Senior Division) and 10% seats are to be filled up by limited departmental competitive examination. If candidates are not available for 10% seats, or are not able to qualify in the examination then vacant posts are to be filled up by regular promotion in accordance with the Service Rules applicable.” (Emphasis supplied)

In Malik Mazhar Sultan & Anr. (3) v. U.P. Public Service Commission & Ors. reported in (2009) 17 SCC 530 this Court, in view of the large number of vacancies in the promotional quota in the cadre of District & Sessions Judge, directed the High Courts to be practical in the matters of promotion and ensure timely filling up of the vacancies on the basis of the principle of ‘Seniority-cum-Merit’, deviating from the observations in All India Judges’ Association (3) (supra) mandating promotion by ‘Merit-cum-Seniority’. It further observed that seniority should have a predominant role in giving promotions to the Civil Judges (Senior Division) and that the High Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1110 [2024] 5 S.C.R. Court may decline promotion only in case the Judicial Officer is not suitable for being promoted. The relevant observations read as under: -

3. We see large number of vacancies of District Judges are lying vacant as the promotion of these posts are not being done timely by the High Court. Considering the large number of vacant posts of District Judges, the High Court should take timely action to fill up these vacancies keeping in mind the principle of seniority-cum-merit. The High Court may deny promotion to a Civil Judge (Senior Division) only in case he/she is not suitable for being promoted and the seniority should always have a predominant role in giving promotion to the Civil Judge (Senior Division) to the post of District Judge. If the posts of District Judges are not filled up in time it is likely that sessions cases may not have timely trial, thereby delaying the whole procedure of justice delivery system. We request the High Court to be practical in the matter of promotion and filling up the posts of the District Judges. [...]

(Emphasis supplied) b. Relevant Statutory Provisions of the Gujarat State Judicial Service Rules, 2005.

At this stage, it would be necessary to look into the statutory scheme and refer to the relevant provisions governing the promotion of Civil Judges (Senior Division) to the cadre of District & Sessions Judge in the State of Gujarat.

The 2005 Rules provide for the service conditions and policies pertaining to the Judicial Officers and the service framework of the District Judiciary in the State of Gujarat.

Rule 5 sub-rule (1) of the 2005 Rules provides for the various modes or methods of appointment to the cadre of District & Sessions Judge. Rule 5(1) of the 2005 Rules framed in accordance with the directions issued in All India Judges’ Association (3) (supra), lays down three distinct modes of recruitment to the cadre of District & Sessions Judge. The said Rule reads as under: - Digital Supreme Court Reports [2024] 5 S.C.R. 1111

5. Method of recruitment, qualification and age limit. (1) Recruitment to the cadre of District Judges shall be as under, - (I) 50 per cent by promotion from amongst the Senior Civil Judges on the basis of principle of merit-cum-seniority and passing a suitability test. (II) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Senior Civil Judges having not less than five years qualifying service, (III) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by the High Court.

Rule 5(1) sub-clause (I) of the 2005 Rules provides that appointment to 50% of the posts in the cadre of District & Sessions Judge shall be by promotion from the cadre of Civil Judges (Senior Division) i.e., the feeder cadre, on the basis of the principle of ‘Merit-cum- Seniority’ and upon passing a Suitability Test. In other words, 50% of the posts of District & Sessions Judge shall be filled by promotions on the basis of the principle of ‘Merit-cum-Seniority’.

Rule 5(2) sub-clause (II) of the 2005 Rules provides that 25% of the posts in the cadre of District & Sessions Judge shall be filled by promotions on the basis of merit through a limited departmental competitive examination.

Rule 5(2) sub-clause (III) provides the third method of recruitment, by which the remaining 25% of the posts in the cadre of District & Sessions Judge shall be filled by direct recruitment of the eligible advocates on the basis of a written exam and viva-voce.

Pursuant to the directions of this Court in All India Judges’ Association (4) (supra), Rule 5 referred to above was amended by the Gujarat State Judicial Service (Amendment) Rules, 2011, whereby, the second category of posts being the 25% promotional quota to be strictly filled on the basis of merit, was reduced to 10% and the 50% promotional quota, to be filled on the basis of principle of ‘Merit- cum-Seniority’ and passing a Suitability Test, was increased to 65%. Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1112 [2024] 5 S.C.R.

63. In other words, the aforesaid 2011 amendment reduced the posts for promotion on the basis of merit from 25% to 10% and increased the posts for promotion on the principle of ‘Merit-cum-Seniority’ from 50% to 65% in the cadre of District & Sessions Judge.

Rule 5 sub-rule (3) further prescribes the eligibility criteria for the aforesaid two modes of promotion provided in Rule 5(1) of the 2005 Rules, as amended in 2011. The said rule reads as under: -

5. Method of recruitment, qualification and age limit. (3) (I) For being eligible for promotion against 65% of the total posts in the cadre of District Judges required to be filled by promotion on the basis of the principle of merit- cum-seniority, the qualifying service as Senior Civil Judge shall not be less than two years service in the cadre. (II) For eligibility for promotion against the remaining 10% posts required to be filled in by promotion strictly on the basis of merit through limited departmental competitive examination, the qualifying service as Senior Civil Judge shall not be less than five years.

Rule 5 sub-rule (3)(I) of the 2005 Rules stipulates that a minimum of two-years of qualifying service in the feeder cadre i.e., as a Civil Judge (Senior Division) is required in order to be eligible to participate in the promotion process for the 65% posts in the cadre of District & Sessions Judge on the basis of the principle of ‘Merit- cum-Seniority’ as envisaged under Rule 5(1)(I). In other words, all Civil Judges (Senior Division), having a minimum of two-years of service, are eligible to be promoted to the 65% posts in the cadre of District & Sessions Judge on the basis of the principle of ‘Merit- cum-Seniority’.

On the other hand, Rule 5 sub-rule (3)(II) provides for the requirement of a minimum of five-years of qualifying service in the feeder cadre i.e., as a Civil Judge (Senior Division), for participating in the promotion process for the 10% posts in the cadre of District & Sessions Judge on the basis of strict merit as provided under Rule 5(1)(ii) of the 2005 Rules. In other words, all Civil Judges (Senior Division) who have completed a minimum of five-years of service are eligible to be promoted to the 10% posts in the cadre of District & Sessions Judge on the basis of Merit through the competitive examination. Digital Supreme Court Reports [2024] 5 S.C.R. 1113

In other words, a combined reading of the aforesaid Rule 5(1) with Rule 5(3) of the 2005 Rules makes it clear that there are three distinct modes of recruitment to the cadre of District & Sessions Judge which are as follows: - (I) 65% posts by promotion from the eligible Civil Judges (Senior Division) having a minimum of two-years of service on the basis of ‘Merit-cum-Seniority’; (II) 10% posts by promotion from eligible Civil Judges (Senior Division) with a minimum of five-years of service on basis of merit through a competitive examination and; (III) 25% posts by direct recruitment from the eligible members of the Bar on the basis of a written exam and viva voce. iii. Evolution of the Principles of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ in Service Jurisprudence. a. Concept of Promotion: The meaning and origin of seniority and merit as parameters.

Promotion is an integral part of any formal sector employment. The principal object of a promotion system is to secure the best possible incumbents for higher positions while maintaining the morale of the whole organization.1 In the matter of formulation of a policy for promotion to a higher post, the two competing principles which are taken into account are inter-se seniority and comparative merit of employees who are eligible for promotion. Understanding the meaning of Seniority and Merit

The Black’s Law Dictionary defines ‘seniority’ as follows2: -

Represents in the highest degree the right to work, and by seniority the oldest man in point of service, ability and fitness for the job being sufficient, is given choice of jobs, is first promoted within range of jobs subject to seniority, and is the last laid off, proceeding so on down the line to the youngest in point of service.

1 2 High Court of Calcutta v. Amal Kumar Roy [1963] 1 SCR 437 Henry Campbell Black, Black’s Law Dictionary, p. 1528 (6th Edn., 1968). Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1114 [2024] 5 S.C.R.

Weber, the sociologist, described “promotion according to seniority or to achievement” as an important component of an efficient bureaucracy.3 Establishing a promotion system based on seniority is fundamental to modern management, which ensures that individuals joining an organization have opportunities for career advancement. Further, promotions based on seniority is tried and tested method because those who have been engaged at the employment for longer have had more time to refine the skills necessary for the higher posts. What constitutes ‘Merit’

According to the Cambridge Dictionary, merit is defined as the quality of being good and deserving. In the context of employment, it is the sum total of various qualities which are relevant for fulfilling the requirements of the employment.4 There are multiple attributes of merit which must be taken into consideration such as character, integrity, and devotion to the assigned official duties. The manner in which the candidate discharges their final duties would also be a relevant factor.

Further, past performance is a relevant factor to judge the merit of the candidate, particularly in promotional posts, since it would indicate the capability of the candidate to discharge their duties effectively. Merely because any person possesses higher qualifications or higher marks in an examination does not mean that they are meritorious than others.5

In the United States, the Federal Civil Services Act of 1871, provides for filling of vacancies in higher positions by competitive promotion tests, wherever practicable. H. Eliot Kaplan, General Counsel of the New York Bar, in his “Law of Civil Services” writes that in some jurisdictions promotions may be made on a wider basis, the field of promotion being left to the discretion of the personnel agency.6 He also notes that the eligibility requirements for promotion are usually not specified in the statutes but are usually left to be determined by 3 4 5 6 H. Gerth and C.W. Mills, From Max Weber: Essays in Sociology, 199, 202 (Oxford University Press, New York, 1958). K.K. Parmar v. High Court of Gujarat (2006) 5 SCC 789 Kartar Kaur v. State (1967) SLR 34 H. Eliot Kaplan, The Law of Civil Services (New York University Press, Mathew Bender & Company, New York, 1958). Digital Supreme Court Reports [2024] 5 S.C.R. 1115 rules of the personnel agency. Personnel agencies fix educational and experience requirements for eligibility to compete for promotion. A hint of the ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ principle can be traced in his words where he states that where the law requires that promotions be made from among those serving in the next lower grade, the incumbents of such lower positions would be deemed to be presumably qualified for promotion. For ‘Merit-cum- Seniority’, particularly, the competitive test/qualification criteria would serve to determine the relative excellence among those presumably qualified for promotion7, so that those demonstrating superior merit and fitness would be available to fill the vacancies.8

In Britain, the 1854 Northcote-Trevelyan Report founded a public service system based on merit, where open competitive examinations were practiced under the principle of promotion by merit but also held that seniority and experience counted in some respects.9

Similarly, in France, the 19th century saw the introduction of the doctrine of the “Concours” or competitive examination to support the merit system in the civil service, yet giving seniority and experience due regard in promotion to higher ranks.10

During the British Raj, the East India Company adopted the principle of seniority for promotions. This principle was officially recognized in the Charter Act, 1793 and continued until the enactment of the Indian Civil Service Act, 1861. Apart from the seniority principle, considerations of merit, integrity, competence, and ability were also taken into account for promotions. This ‘Seniority-cum-Merit’ formula remained in practice until 1947.

The Indian Civil Service (hereinafter referred as the “ICS”) system, initiated in the 19th century, encapsulated aspects of recruitment based on competitive examinations and seniority. For entry into the ICS, competitive examinations were conducted and for promotions 7 8 9 Id. Elman, B.A., Political, social, and cultural reproduction via civil service examinations in late imperial China, 50(1) Journal of Asian Studies, pp.7-28 (1991). Jenifer Hart, The genesis of the Northcote–Trevelyan report, in Studies in the growth of nineteenth century government pp. 63-81 (Ed. Gillian Sutherland, Routledge & Kegan Paul, London, 1972). 10 Kaplan, N.I., A changing culture of merit: French competitive examinations and the politics of selection, pp. 1750-1820 (Columbia University Press, 1999). Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1116 [2024] 5 S.C.R. to higher positions, seniority and experience were considered as important factors.

Under the Charter Act, 1833, following Lord Macaulay’s Report of the Select Committee of British Parliament11, the concept of competitive examinations in modern Civil Services in India was introduced in 1854. The Report recommended that the patronage-based system of East India Company should be replaced by a permanent Civil Service where candidates are recruited through competitive examinations.12 As stated, competitive examinations were

designed to protect career employees against improper political influences or personal favouritism in the recruiting, hiring, promotion, or dismissal processes, to ensure that personnel management is conducted without discrimination

.13

The First Pay Commission in 1947 recommended a blend of direct recruitment and promotion, suggesting that seniority be emphasized for roles requiring familiarity with office work, while merit be the basis for higher-level positions. Subsequent commissions, such as the Second Pay Commission in 1959 and the First Administrative Reforms Commission in 1969, echoed the importance of merit-based promotions alongside seniority.

The principle of seniority as a parameter of selection for promotion was found to be derived from the belief that competence is related to experience and that it limits the scope of discretion and favouritism. There is always an additional assumption that long-serving employees have demonstrated loyalty to the employing organization and so are entitled to reciprocal treatment.

However, in India, no government servant can claim promotion as their right because the Constitution does not prescribe criteria for filling seats in promotional posts. The Legislature or the executive may decide the method for filling vacancies to promotional posts based on the nature of employment and the functions that the candidate will be expected to discharge. The courts cannot sit in review to decide whether the policy adopted for promotion is suited to select 11 The Macaulay Committee’s Report on the Indian Civil Service 1854. 12 History of the Commission, Union Public Service Commission. 13 S. REP. No. 969; recited from O’Rourke, 1993, p. 344. Digital Supreme Court Reports [2024] 5 S.C.R. 1117 the ‘best candidates’, unless on the limited ground where it violates the principle of equal opportunity under Article 16 of the Constitution. b. Principle of ‘Merit-cum-Seniority’ and ‘Seniority-cum- Merit’ in Service Jurisprudence.

This Court in its decision in State of Kerala & Anr. v. N.M. Thomas & Ors. reported in (1976) 2 SCC 310 held that policies pertaining to promotions can be said to broadly fall within two distinct categories being: (i) promotions which are based on the principle of ‘Merit-cum- Seniority’ and, (ii) promotions which are based on the principle of ‘Seniority-cum-Merit’. It further held that when it comes to promotions based on principle of ‘Seniority-cum-Merit’, a senior who has the minimum requisite merit shall be entitled to promotion even though there might be others who are more meritorious. The relevant observations read as under: -

38. The principle of equality is applicable to employment at all stages and in all respects, namely, initial recruitment promotion, retirement, payment of pension and gratuity. With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum-merit, Seniority- cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority. This will not violate Articles 14, 16(1) and 16(2). A rule which provides that given the necessary requisite merit, a member of the backward class shall get priority to ensure adequate representation will not similarly violate Article 14 or Article 16(1) and (2). [...]

(Emphasis supplied)

This Court in State of Mysore v. Syed Mahmood reported in (1968) 3 S.C.R. 363, on the criterion of ‘Seniority-cum-Merit’ observed that any rule that mandates selection based on the principle of ‘Seniority-cum-Merit’, such rule mandates that the promotions must be determined through a selection process that evaluates “seniority, subject to the fitness of the candidate, to discharge the duties of the post from among persons eligible for promotion”. In consequence, where promotion is based on the ‘Seniority-cum-Merit’ principle, the candidate cannot claim promotion as a matter of right on the grounds Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1118 [2024] 5 S.C.R. of his seniority alone. Further, if the officer fails to discharge his duties of the higher post, he may be passed over by a junior officer.

In Jagathigowda, C.N. & Ors. v. Chairman, Cauvery Gramina Bank & Ors, reported in (1996) 9 SCC 677, while moving a step ahead, it was held that where promotion is based on the principle of ‘Seniority- cum-Merit’, it would still be open for the selection committee to take into consideration the performance appraisal forms to first ascertain the suitability of the candidates being considered for promotion. The relevant observations read as under: -

8. [...] It is settled proposition of law that even while making promotions on the basis of seniority-cum-merit the totality of the service record of the officer concerned has to be taken into consideration. The performance appraisal forms are maintained primarily for the purpose that the same are taken into consideration when the person concerned is considered for promotion to the higher rank. The High Court, with respect, was not justified in holding that the performance appraisal could not be taken into consideration by the Director’s Committee while considering the officers for promotion to the higher rank.

(Emphasis supplied)

This Court in Rajendra Kumar Srivastava & Ors. v. Samyut Kshetriya Gramin Bank & Ors. reported in (2010) 1 SCC 335 held that where promotion is on the basis of ‘Seniority-cum-Merit’, the standard method is to first ascertain the candidates who possess the minimum required merit and thereafter making promotions strictly on the basis of seniority from among those who are found to possess the minimum necessary merit. It further held that the minimum requisite merit may be ascertained from either one or a combination of multiple processes of assessment. The relevant observations read as under: - “11. It is also well settled that the principle of seniority- cum-merit, for promotion, is different from the principle of “seniority” and the principle of “merit-cum-seniority”. Where promotion is on the basis of seniority alone, merit will not play any part at all. But where promotion is on the principle of seniority-cum-merit, promotion is not automatic with reference to seniority alone. Merit will also play a Digital Supreme Court Reports [2024] 5 S.C.R. 1119 significant role. The standard method of seniority-cum- merit is to subject all the eligible candidates in the feeder grade (possessing the prescribed educational qualification and period of service) to a process of assessment of a specified minimum necessary merit and then promote the candidates who are found to possess the minimum necessary merit strictly in the order of seniority. The minimum merit necessary for the post may be assessed either by subjecting the candidates to a written examination or an interview or by assessment of their work performance during the previous years, or by a combination of either two or all the three of the aforesaid methods. There is no hard-and-fast rule as to how the minimum merit is to be ascertained. So long as the ultimate promotions are based on seniority, any process for ascertaining the minimum necessary merit, as a basic requirement, will not militate against the principle of seniority-cum-merit. xxx xxx xxx

13. Thus it is clear that a process whereby eligible candidates possessing the minimum necessary merit in the feeder posts is first ascertained and thereafter, promotions are made strictly in accordance with seniority, from among those who possess the minimum necessary merit is recognised and accepted as complying with the principle of “seniority-cum-merit”. What would offend the rule of seniority-cum-merit is a process where after assessing the minimum necessary merit, promotions are made on the basis of merit (instead of seniority) from among the candidates possessing the minimum necessary merit. If the criteria adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of seniority-cum-merit. We accordingly hold that prescribing minimum qualifying marks to ascertain the minimum merit necessary for discharging the functions of the higher post, is not violative of the concept of promotion by seniority- cum-merit.” (Emphasis supplied) Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1120 [2024] 5 S.C.R.

In Dr. Kavita Kamboj (supra), this Court speaking eruditely through one of us, Dr. D.Y. Chandrachud, CJI., observed that the principle of ‘Merit-cum-Seniority’ is an approved method of selection where the emphasis is primarily on the comparative merit of the judicial officers being considered for promotion whereby even a junior who demonstrates greater merit than the senior can be considered for promotion. The relevant observations read as under: -

45. [...] The principle of merit-cum seniority is an approved method of selection where merit is the determinative factor and seniority plays a less significant role. Where the principle of ‘merit-cum seniority’ is the basis, the emphasis is primarily on the comparative merit of the judicial officers being considered for promotion. Resultantly, even a junior officer who demonstrates greater merit than a senior officer will be considered for promotion.

(Emphasis supplied) [Also see Central Council for Research in Ayurveda and Siddha and Anr. v. Dr. K. Santhakumari reported in (2001) 5 SCC 60]

This Court in B.V. Sivaiah & Ors. v. K. Addankl Babu & Ors. reported in (1998) 6 SCC 720 whilst explaining the difference between the principle of ‘Merit-cum-Seniority’ vis-à-vis the principle of ‘Seniority- cum-Merit’, held as follows: - (i) First, where promotion is based on the principle of ‘Merit-cum- Seniority’ a greater emphasis is laid on merit & the ability of the candidate and seniority is to be given weight where merit and ability are approximately equal. Whereas, when it comes to the principle of ‘Seniority-cum-Merit’, the promotion is to be made on the basis of seniority alone subject to having the minimum requisite merit and suitability of the candidate amongst the eligible persons. The relevant observations read as under: - “9. The principle of ‘merit-cum-seniority lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only where merit and ability are approximately equal. [...] xxx xxx xxx Digital Supreme Court Reports [2024] 5 S.C.R. 1121

18. We thus arrive at the conclusion that the criterion of ‘seniority-cum-merit’ in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit.” (Emphasis supplied) (ii) Secondly, the principle of ‘Merit-cum-Seniority’ postulates the requirement of making a comparative assessment of merit, whereas no such comparative assessment is required where the criterion for promotion is based on the principle of ‘Seniority- cum-Merit’. Even if the candidates have the same length of service, it is only to be determined whether the candidates possess the minimum required threshold of merit or not. The relevant observations read as under: - “15. [...] Since comparation assessment of merit is required to made while applying the criterion of ‘merit cum-seniority’ and for ‘seniority-cum merit’ no such comparative assessment is required, the aforementioned observations in the case of C.R. Seshadri (supra) on which reliance has been placed cannot be regarded as correctly reflecting as what is meant by the criterion of ‘seniority-cum-merit’. xxx xxx xxx

17. [...] We are unable to agree. While applying the principle of seniority-cum-merit for the purpose of promotion what is required to be considered is inter Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 1122 [2024] 5 S.C.R. se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the select list for appointment. Such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect to the such rights flowing from seniority. It cannot, therefore, be said that in the matter of promotion on the basis of seniority-cum-merit seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service.” (Emphasis supplied) (iii) Thirdly, the Court concluded by observing that where the criterion of promotion is principle of ‘Seniority-cum-Merit’, marks can only be prescribed as a ‘minimum qualifying requirement’ and as such where promotion was being given to the eligible seniormost candidates on the basis of their individual marks, such promotion would be contrary to the principle of ‘Seniority- cum-Merit’. The relevant observations read as under: -

26. It is not a case where minimum qualifying marks are prescribed for assessment of performance and merit and those who secure the prescribed minimum qualifying marks are selected for promotion on the basis of seniority. In the circumstances, it must be held that the High Court has rightly come to the conclusion that the mode of selection that was in fact employed was contrary to the principle of ‘seniority-cum-merit’ laid down in the Rules.

(Emphasis supplied)