IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1426 of 1998 With LETTERS PATENT APPEAL NO. 1427 OF 1998 And LETTERS PATENT APPEAL NO. 1428 OF 1998 And LETTERS PATENT APPEAL NO. 1429 OF 1998 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and MR.JUSTICE R.P.DHOLAKIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? Yes 2. To be referred to the Reporter or not? Yes : 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? No 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? No 5. Whether it is to be circulated to the Civil Judge? No : -------------------------------------------------------------- HIGH COURT OF GUJARAT Versus KK PARMAR -------------------------------------------------------------- Appearance: MR SN SHELAT, ADDL. ADVOCATE GENERAL FOR MR SP HASURKAR for Appellant MR MUKUL SINHA for Respondents No. 1 to 29 MRS KETTY A MEHTA for Respondent No. 30,31,32,33,34,35, 36,37,38,39,40,41,42,43 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE R.P.DHOLAKIA Date of decision: 29.7.1999 C.A.V.COMMON JUDGEMENT (Per : Panchal, J.) All these appeals filed under Clause-15 of the Letters Patent are directed against common judgment rendered by the learned Single Judge in Special Civil Application No. 351/98 and Special Civil Application No. 1298/98, by which order of promotion dated January 31, 1998 in favour of respondents no.30 to 43 in Letters Patent Appeal No. 1426/98 is set aside and the High Court of Gujarat is directed to evolve fresh process of selection for the post of section officers in conformity with Rule-47 of the High Court of Gujarat (Recruitment and Conditions of Service of Staff) Rules, 1992, giving due weightage to all the three components of determination of merits as indicated in the judgment. 2. Letters Patent Appeal No.1426/98 is filed by the High Court of Gujarat against judgment rendered in Special Civil Application No. 351/98, which was filed by those Assistants who had cleared written test, but were not called for oral interview; whereas Letters Patent Appeal No.1427/98 is filed by the High Court of Gujarat against judgment rendered in Special Civil Application No.1298/98 which was filed by those Assistants who had appeared in the two tests- oral as well as written, but were not selected. Letters Patent Appeal No.1428/98, which is directed against judgment rendered in Special Civil Application No. 351/98,is filed by candidates whose selection to the post of Section Officer, is set aside by the learned Single Judge; whereas Letters Patent Appeal No.1429/98 is directed against judgment rendered in Special Civil Application No. 4298/98 whereby selection of the selected candidates is set aside by the learned Single Judge. All these appeals rest upon common facts as well as raise common questions of law and as they were heard together, we propose to dispose of them by this common judgment. 3. The Chief Justice of High Court of Gujarat has framed rules called "High Court of Gujarat (Recruitment and Conditions of Service of Staff) Rules, 1992 ("Rules" for short) in exercise of powers conferred by Article 229 of the Constitution. The Rules came into force with effect from September 1, 1992 and apply to all the members of High Court staff. Rule-4 of the Rules categorises staff of the High Court in four classes. Rule-47 of the Rules provides for promotion to the post of Section Officer and all higher posts. Promotion to the cadre of Section Officers can be effected from Assistants and Translators. Sub-rule (2)(a) of the said Rule stipulates that promotion to the post of Section Officer from Assistant will be effected strictly on consideration of efficiency and proved merits. As per the said sub-rule, merits should be determined on the basis of past performance and performance at the tests written and oral to be taken by the selection committee as may be appointed by the Chief Justice. As per the eligibility criteria laid down in sub-rule(4) and (5) of Rule-47, no person can be promoted from the lower post to higher post unless he has passed the departmental examination as prescribed and has experience of five years in the post from which he is to be promoted. 4. In the year 1997, 25 posts of Section Officers were vacant. Therefore, the then Registrar commenced process of promotion to the posts of Section Officers by preparing Office Submissions dated July 22, 1997. In the submissions it was stated that 113 Assistants were eligible for appearing in the written test, but 8 Assistants had not passed the requisite higher standard departmental examination and, therefore, were not eligible for being considered for selection or enlistment of their names in the select list. It was also pointed out that 5 Assistants were relieved so as to enable them to join as Civil Judge (J.D.) and Judicial Magistrate, First Class while one Assistant was working as a Private Secretary (English Stenographer Gr.I.) on the establishment of High Court and, therefore, remaining 91 Assistants who had completed 5 years of service and had also passed the requisite higher standard departmental examination, were eligible to appear in the written/oral tests. In the submissions prepared by the Registrar it was suggested that criteria adopted by the selection committee in past was that the Assistants who secured 40 marks in aggregate out of 80 marks of which 60 marks were assigned to written test and 20 marks to oral interview, were considered eligible for selection and as in view of Resolution No. SLT-1082-629-G-2, dated March 29, 1982 of the Government of Gujarat, General Administration Department, zone of consideration should be three times the number of vacancies, 75 senior most eligible Assistants only should be considered and called for written/oral test. By presenting the submissions, the Registrar sought directions; (A) as to whether only 75 senior most eligible Assistants excluding those against whom adverse remarks were passed and also those against whom departmental enquiry was pending, should be called or (B) all the 91 eligible Assistants including those against whom adverse remarks were passed and also those against whom departmental enquiry was pending, should be called for written/oral test for the purpose of preparing select list of 25 candidates for their promotion to the posts of Section Officers, and (C) whether the Committee consisting of Registrar, Joint Registrar and Additional Registrar (Administration) should be constituted for conducting written test and oral test for preparing select list. 5. After discussing the matter, The Acting Chief Justice passed following order :- 'B' Yes : 91 includes 12 against whom adverse remarks are made and six against whom inquiries are pending. Therefore, restricting to 75, may mean restricting to 75 - 18 = 57. There is no reason to exclude 76 to 91 (16) eligible persons when 18 other persons also being considered. Therefore, 'A' No. 'C' To be done later. 2.9.97" Later on, The Chief Justice constituted selection committee of two learned senior sitting Judges of the High Court, one of whom had also experience in the past as Head of the Department. The Committee decided to adopt the same criteria for selection as was prevalent in the past. In view of direction given by Chief Justice, 91 Assistants were called for appearing at the written test (drafting) of 60 marks on September 27, 1997. Out of 91 candidates, 90 candidates appeared at the written test, while one remained absent. During the written test held on September 27, 1997, one Assistant was found to be copying in the test and, therefore, answer books submitted by 89 Assistants were examined. On office submissions being made, it was found by the selection committee that a candidate who had obtained less than 12 marks in written test, would not be eligible for selection even if he obtained full 20 marks at oral test and, therefore, there was no point in calling the candidates who had obtained less than 12 marks at the written test for oral test. Under the circumstances, 53 candidates who had obtained 12 and more marks at the written test, were called for the oral test on January 20, 1998. At the oral test, knowledge of rules and regulations, knowledge of practice and procedure as well as general impression and personality were adjudged by the selection committee. At the time of oral interview, service records of the candidates were also with the selection committee pursuant to the direction given by it to the Office. Ultimately, by an order dated January 31, 1998 respondents No.30 to 43 in Letters Patent Appeal No. 1426/98 were promoted to the post of Section Officers. Thereupon Special Civil Application No. 351/98 was filed challenging the order dated January 31, 1998 granting promotions to respondents No. 30 to 43 in Letters Patent Appeal No.1426/98, by those Assistants who had passed written test, but were not called for oral interview; whereas Special Civil Application No. 1298/98 was filed challenging the said order of promotion by those Assistants who had appeared in the two tests, but were not selected for promotion to the post of Section Officer. 6. In the petitions, it was averred that in the written test, Assistants working on the judicial side were handicapped due to the very nature of work they had been doing for years together and, therefore, selection was bad. It was averred that Rule-47(2) of the Rules was ultra vires, as post of Section Officer could not have been treated as selection post. It was claimed that in view of the Government Resolution dated March 29, 1982, zone of consideration could not have been widened to 91 Assistants and, therefore, promotion order of respondents No.32 to 43 was bad in law. What was stressed was that those who had secured less than 12 marks at the written test, could not have been eliminated at the stage of oral interview and, therefore, promotion given to respondents no.30 to 43 in Letters Patent Appeal No. 1426/98 being contrary to Articles 14 & 16 of the Constitution should be set aside. It was pleaded that bunching of vancancies was illegal and, therefore, whole selection was arbitrary. By filing petition, the original petitioners had prayed to declare Rule-47(2) of the Rules to be ultra vires and to quash promotions granted to respondents no.32 to 43. On service of notice, affidavit-in-reply on behalf of respondent no.1 i.e. High Court of Gujarat was filed by Mr. B.S.Shankwar, working as Assistant Registrar. In the said reply, all the averments made in the petitions were controverted and it was pointed out that selection was not arbitrary at all. By filing the reply, the deponent had demanded dismissal of the petitions. We may state that it is not necessary to refer to the averments made in the reply in detail at this stage and, therefore, those averments are not referred to in detail. The original petitioners had also filed affidavit-in-rejoinder controverting the averments made in affidavit-in-reply filed on behalf of the High Court and reiterating what was stated in the petitions. 7. At the hearing of the petitions, as is evident from Para-4 of the judgment rendered by the learned Single Judge, promotion orders in question were mainly challenged on following grounds : (i) Junior Assistants to the original petitioners were considered and promoted by widening zone of consideration in breach of Government Resolution dated March 29, 1982 and, therefore, the entire selection process was illegal; (ii) Bunching of vacancies of different years made by the High Court had unnecessarily extended zone of consideration and, therefore, selection was vitiated; (iii) Before making selection of original respondents no.2 to 15 past performance was completely overlooked; whereas second component of Rule-47(2) of the Rules i.e. written test was applied out of proportion which resulted into selection of non-meritorious and junior persons and thus, selection was vitiated; (iv) Non-assigning of reasons by the selection committee for selection or non-selection of the candidates has vitiating effect on selection; (v) The petitioners in Special Civil Application No. 351/91 who had cleared written test could not have been excluded at the stage of oral test and as short-listing of candidates was illegal, promotion orders should be set aside; (vi) No syllabus was prescribed, nor guidelines were provided as to division of marks in written or viva voce and for considering service record, as a result of which selection was bad in law; (vii) Though the rules came into force in the year 1992, promotions were given to the posts of section officer in the year 1995 without holding written test and as Rule-47 is being followed discriminatorily, selection is bad; (viii) Rule-47(2) of the Rules is ultravires, as the said rule entirely negates the principle of seniority and as it does not provide any guidelines as to the nature of weightage to be given to the past performance, the written test as well as oral test. Other subsidiary contentions were also urged besides the above referred to main grounds. After hearing the learned Counsel for the parties, the learned Single Judge held that widening of the zone of consideration by the learned Actg. Chief Justice was contrary to Government Resolution dated March 29, 1982 and, therefore, selection of those who were not within the zone of consideration was vitiated. The learned Single Judge further deduced that no marks were allotted for the past performance which amounted to non-consideration of the past performance of candidates and thus, promotion order was in utter disregard of Rule-47. Learned Single Judge held that selection of the Assistants for the promotional posts of Section Officer was not on merits as contemplated by Rule-47(2) of the Rules and persons of average merit superseded large number of employees in the cadre of Assistants. In view of the judgment in MAJOR GENERAL IPS DEWAN v. UNION OF INDIA, JUDGMENT TODAY 1995(2) S.C. 654, the learned Judge concluded that promotion order was not bad because reasons were not recorded by the selection committee for selection or non-selection of the candidates. The learned Judge also negatived the contention that short-listing of candidates had vitiating effect on the promotion. So far as point regarding syllabus is concerned, it was held by the learned Judge that for written test, papers set for the written test taken in past were distributed well in advance free of costs to the candidates so that they could prepare for the forthcoming test and, therefore, the petitioners were not right in contending that the selection was bad as syllabus was not prescribed by the authorities. Necessary material was placed before the learned Single Judge which indicated that 25 vacancies had arisen in the years 1997 and, therefore, the learned Judge rejected the plea that bunching of vacancies for different years had unnecessarily extended the zone of consideration of candidates prejudicially affecting those who were not selected. In view of the conclusion that selection was bad for breach of G.R. dated March 29, 1982 prescribing zone of consideration as well as for breach of Rule-47(2) of the Rules, the learned Judge did not decide question whether Rule-47(2) of the Rules was ultravires or not. In view of the above referred to conclusions, the learned Judge set aside order dated January 31, 1998 promoting original respondents no.2 to 15 as Section Officer and directed the High Court to evolve fresh process of selection for the post of Section Officer in confirmity with Rule 47 of the Rules, 1992, giving due weightage to all the three components of determination of merit as mentioned in Rule-47(2) of the Rules by the impugned judgment, giving rise to present appeals. 8. Mr. S.N.Shelat,learned Additional Advocate General contended that G.R. dated March 29, 1982 does not apply to the post of Section Officer and,therefore, the learned Single Judge was not justified in quashing the promotion order on the ground that zone of consideration was widened by the learned Actg. Chief Justice in breach of said Government Resolution. It was pleaded that G.R. was applicable in case where promotion is to be effected on the basis of grading of past performance and not when promotion is to be given on the basis of past performance, written test as well as oral test and,therefore, promotions of the concerned respondents should not have been set aside on the ground that there was breach of G.R. dated March 29, 1982. In the alternative,it was contended that learned Chief Justice has retained comprehensive powers under Rule 50(1) of the Rules for modification, variation and exception to be made in the Rules and/or orders of the Government and as learned Chief Justice in exercise of powers under Rule 50(1) of the Rules had widened zone of consideration, the selection should not have been set aside on the ground that zone of consideration prescribed in said Government Resolution was committed breach of. What was emphasised by the learned Counsel for the appellants was that the concept of zone of consideration would be applicable only at viva voce stage and not at the stage of written test and so, selection should not have been voided by the learned Single Judge. It was asserted that in any view of the matter, widening of zone of consideration has no invalidating effect on the selection madeand, therefore, promotion of the concerned respondents should not have been set aside by the learned Single Judge. In support of these submissions, the learned Additional Advocate General placed reliance on the decisions rendered in the cases of (1) ASHOK KUMAR YADAV & ORS. etc. etc. v. STATE OF HARYANA & ORS. A.I.R. 1987 S.C. 454, and (2) ALL INDIA STATE BANK OFFICERS FEDERATION AND OTHERS v. UNION OF INDIA AND ORS. JUDGMENT TODAY, 1996(8) S.C. 550. 9. On the other hand, Dr. Mukul Sinha,learned Counsel for the contesting respondents submitted that under Article 229(2) of the Constitution, Rules are framed by the learned Chief Justice in exercise of delegated rule making power; whereas appointment is made in exercise of administrative powers and,therefore, as administrative power was exercised contrary to Article 229(2) of the Constitution, learned Single Judge was justified in quashing the promotion order. It was claimed that changes can be made in the rules by the learned Chief Justice in exercise of his rule making power, but what was drawn on file is an administrative action, which should not be construed as modification, variation of and/or exception to the Government rule prescribed in G.R. dated March 29, 1982. According to Dr. Sinha, modification should be madein exercise of quasi legislative power for which a procedure is laid down and as no such procedure was followed, extension of zone of consideration was illegal. It was emphasised that learned Actg. Chief Justice had made a note which cannot be construed as modification of rules and the said variation was made not in exercise of powers under Rule 50(1) of the Rules, but on office note, which was made purely in administrative capacity and, therefore, the conclusion of the learned Single Judge that the Chief Justice cannot go beyond the Government Resolution by administrative action is perfectly correct. It was stressed that under Rule-91 of the Rules, when amendment etc. is made to the rules, it must be made known to all, but noting made on the office submissions was never made known to the employees and as power was not exercised by the learned Actg. Chief Justice as required by Rule-91 of the Rules, extension of zone of consideration was illegal. The learned Counsel for the contesting respondents submitted that concept of zone of consideration is applicable to candidates and not to stages of selection when promotion is on merits and this wholesome provision should have been adhered to while granting promotion to the post of Section Officer. It was submitted that by administrative orders, those who were ineligible were considered and as zone of consideration applies in the beginning when consideration starts,the learned Judge was justified in setting aside the selection to the post of Section Officer. The learned Counsel pleaded that rule of zone of consideration is sacrosanct and once zone of consideration is fixed, it cannot be breached by any one. What was stressed was that the effect of breach of zone of consideration is that the whole selection stands invalidated and selection cannot be sustained. 10. Mrs. K.T.Mehta, learned Counsel appearing for those candidates whose selection is set aside by the learned Single Judge adoptd the arguments advanced by the learned Additional Advocate General and strenuously urged that the learned Chief Justice has every power to extend the zone of consideration in exercise of powers conferred on him by Rule 50(1) of the Rules and as it had no invalidating effect at all, selection should not have been set aside. 11. In view of the rival submissions advanced at the bar,the question which arises for our consideration is whether any zone of consideration was prescribed by the Government Resolution dated March 29, 1982 for the post of Section Officer and if yes, whether zone of consideration was expanded by the learned Actg. Chief Justice in exercise of powers conferred by Rule 50(1) of the Rules ? In order to resolve this controversy it would be advantageous to reproduce the Government Resolution dated March 29, 1982 in extenso. It reads as under :- " Zone of consideration for promotion to posts filled by Selection. GOVERNMENT OF GUJARAT General Administration Department, Resolution No.SLT-1082-629-G.2, Sachivalaya, Gandhinagar Dated the 29th March, 1982. Read :1. G.R. G.A.D. No.SLT-1177-G, dated 20.5.1978. 2. G.R. G.A.D.No.SLT-1177-G.2, dated 11.11.1980 RESOLUTION In Government Resolution, General Administration Department No.SLT-1177-G, dated 20.5.1978 the principle of selectivity has been accepted for the purpose of appointment by promotion to the post of Heads of Departments. For this purpose, a Selection Committee is also set up under Government Resolution, General Administration Department No. SLT-1177-G.2, dated 11.11.1980 consisting of (1) The Chief Secretary (2) The senior most Secretary to Government next to the Chief Secretary (3) The Secretary of the Administrative Department concerned. 2. This Selection Committee will classify officers within the zone of consideration as outstandindg, very good, good and unfit for promotion. The Select List will then be prepared in the size equal to number of vacancies in the same order, subject to maintenance of seniority inter-se of persons in the same category for the purpose of classification also, Government is pleased to direct in consultation of Gujarat Public Service Commission that the zone of consideration shall be as under :- No. of vacancies No.of officers to be considered 1. 5 2 8 3 10 4 or more three times the number of vacancies. 3. All Secretariat Department should strictly ensure that these instructions are invariably followed while considering promotion to the post filled by promotion on selection basis. By order and in the name of the Governor of Gujarat. H.B.Pandhit Joint Secretary to the Govt.of Gujarat, General Administration Department" 12. A bare reading of the above quoted Government Resolution makes it evident that it is applicable when appointment by promotion to the post of Head of Department is to be made. The Government of Gujarat, Legal Department by a resolution dated June 9, 1971 has declared the Registrar,High Court to be Head of the Department.It is an admitted position that Section Officer cannot be termed or treated as Head of the Department. Therefore, in our view, zone of consideration stipulated in G.R. dated March 29, 1982 would not be applicable when promotion is to be effected from the post of Assistant to the post of Section Officer. The Government Resolution in question further makes it clear that for the purpose of appointment by promotion to the post of Head of the Department,a selection committee of high officials is set-up and selection committee has to classify officers within the zone of consideration as outstanding, very good, good and unfit for promotion. The criteria for promotion as laid down in G.R. dated March 29, 1982 is the same as to be found in the case of promotion to members of