IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 351 of 1998 With SPECIAL CIVIL APPLICATION MO. 1298 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE N.N.MATHUR ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- KK PARMAR Versus HIGH COURT OF GUJARAT -------------------------------------------------------------- Appearance: Special C.A. No.351/98 MR MUKUL SINHA for Petitioners MR S N Shelat, Addl.Advocate General with Mr D A Bambhania, AGP for Respondent No. 1 MRS KETTY A MEHTA for Respondent No. 4 to 16 Special C.A. No.1298/98 Mr M B Gandhi for petitioners Mr S N Shelat, Addl.Advocate General with Mr D A Bambhania, AGP for respondent No.1 Mrs Ketty A Mehta for respondents No.4 to 16 -------------------------------------------------------------- CORAM : MR.JUSTICE N.N.MATHUR Date of decision: 11/11/98 ORAL JUDGEMENT The petitioners in these two Special Civil Applications are employees of the High Court of Gujarat in the cadre of Assistants. By way of these Special Civil Applications under Article 226 of the Constitution of India, they have challenged the promotion of respondents No.2 to 15 on the post of Section Officers. Both the Special Civil Applications rest on similar facts, raise common question of law, except in Special Civil Application No.351/98, wherein the validity of Rule 47 (2) of the High Court of Gujarat (Recruitment and Condition of Services of Staff) Rules, 1992 (hereinafter referred to as the 'Rules of 1992), is also challenged, are heard together and disposed of by the common order. 2. The Hon'ble the Chief Justice of the Gujarat High Court, in exercise of powers conferred by Article 229 of the Constitution and all enabling provisions, framed the Rules governing the service conditions of all the members of the High Court Staff known as High Court of Gujarat (Recruitment and Condition of Services of Staff) Rules, 1992. The said Rule repealed the earlier Rules of 1964. Rule 4 of Rules of 1992, categorizes staff of the High court in four classes. Higher posts of Registrar General down upto Assistant Registrar is placed in the category of Class I Officers. Category of Class II Gazetted Officers consist of Section Officers, Private Secretaries to Hon'ble Judges etc. Class III, Non-Gazetted posts consists of Stenographer grade II, Junior Clerk, Driver etc. Class IV consists of Jamadar, Peon etc. Rule 47 provides for promotion on different posts. Promotion on the post of "Section Officer" is effected from the post of Assistants and Translators strictly on merit and on the basis of record performance. Essential eligibility for promotion is passing prescribed Departmental Examination and five years' experience on the post of Assistant or Translator. 3. In July, 1997, the Registrar commenced the process of promotion for the post of Section Officers. The vacancies were determined in accordance with the Government Resolution of General Administration Department dated 27.1.1978, as follows: --------------------------------------------------------- I. Actual vacant post : 2 Actual post falling vacant for the following reasons: (a) Retirement (consequential vacancy : 2 likely to arise on retirement) (b) Promotion to higher post during the same year : 6 (c) Actual newly created posts : 15 (d) Post expected to be newly sanctioned (leave reserves without post (as per prevailing practice) : ------- Total: 25 ======= ----------------------------------------------------- A list of 113 Assistants qualified to appear at the promotion test of Section Officers was prepared. Out of 113 persons, 16 persons were found not eligible as they had not passed the prescribed Departmental examination. Six persons were relieved to join as Civil Judge (JD) or they were working as Private Secretaries (English Stenographer-Grade I) Class II on the establishment of the High Court. Thus, 91 Assistants were available who had passed the requisite Departmental examination and had completed 5 years' service. As per the Government Resolution dated 29.3.1982, the zone of consideration could be extended upto three times the number of vacancies. Thus, as per the said Government Resolution, only 75 Assistants could be considered for being called for the written and oral test. However, by the order of the then Acting Chief Justice, the zone of consideration was extended from 75 to 91. A decision was also taken that the selection be made as per the past practice i.e. holding written test followed by oral interviews. The criteria adopted for the selection on the earlier occasion was that the Assistants who had secured 40% marks in the aggregate out of 80 marks of which 60 marks were assigned to written test and 20 marks to oral interviews, were considered eligible for selection. Accordingly, the Registrar of the High court issued notice dated 16.7.1997 informing the staff members that the written test for the selection for the post of Section Officers will be held on 9.8.1997. It was further notified that all eligible candidates shall be called for written test. By another Notification dated 16.7.97, it was clarified that written test paper for the selection for the post of Section Officer may be on the pattern of last examination paper or may be objective type or both. The staff members were advised to collect copy of the last years' examination papers from the registry if they so desire. The written test was held on 27th September, 1997. 53 candidates who secured 12 or more marks out of 60 in the written test were called for oral interview before the Selection Committee constituted by the then Hon'ble Acting Chief Justice, consisting of two Hon'ble Judges of this Court. Out of 53 candidates, only 14 candidates could secure 40% marks i.e. 32 out of 80 marks. The said 14 candidates, placed in the select list, have been appointed as Section Officers by the impugned order dated 31.1.1998. 4. The petitioners have challenged the appointment of respondents No.2 to 15 mainly on the following grounds: (1) The zone of consideration for 25 vacancies has been erroneously widened from 75 to 91 in breach of the G.R. dated 11.11.1980, as a result thereof, much junior persons have been considered and promoted to the prejudice of the petitioners rendering the entire process of selection illegal and bad in law. (2) The respondents have committed illegality in bunching vacancies of different years and thereby extending the zone of consideration, making the entire process of selection invalid. (3) The selection of Respondents No. 2 to 15 is illegal and void, as they have not been selected by a proper process of selection as per the mandate of Rule 47(2) of the Rules of 1992, inasmuch as that out of the three components provided for determination of merit, while the first component "PAST PERFORMANCE" has been completely overlooked, the second component "WRITTEN TEST" has been applied out of proportion to the extent of virtually covering the entire field, which has resulted into selection of non-meritorious and junior persons at the cost of supersession of large number of matured and competent hands, bringing the demoralising and shocking wave amongst the entire staff on the High Court establishment. (4) The entire process of selection is vitiated for the reason that the Selection committee has not indicated any reason for selection or non-selection of the candidates. (5) The petitioners in Special Civil Application No.351/98 have been illegally excluded from the oral test. All the candidates coming within the zone of consideration ought to have been called for interview and short-listing the candidates for oral interview on the basis of written test is not contemplated by Rule 47 (2) and as such the action is violative of the said rule and also the fundamental rights of the petitioners under Articles 14 and 16 of the Constitution of India. (6) The entire process of selection is arbitrary as the rule does not provide for syllabus, no guidelines are provided for preparation, no guidelines are provided as to division of marks for written or viva voce and for considering the service record. (7) In spite of the Rules being amended in 1992 and the post of Section Officer being the post of selection post, the rule is being followed discriminatorily, inasmuch as that in the year 1995, promotions on the post of Section Officer were given without holding written test. (8) Rule 47(2) of the Rules of 1992 is ultra vires on the ground that the said rule entirely negates the principles of seniority which for the purpose of promotion from the cadre of assistants to the cadre of Section Officer is not rational, fair and proper. The rule also does not provide any guidelines as to the nature of test, weightage to be given to past performance and to the written and oral test and as such irrational, arbitrary and violative of Article 14 of the Constitution of India. A number of subsidiary contentions have been urged besides the broad grounds stated above. I shall deal with these subsidiary contentions as well while elucidating the broad grounds at the appropriate place. Ground No.1 5. It is contended by the learned Advocate appearing for the petitioners that by widening the zone of consideration, serious prejudice has been caused to the petitioners inasmuch as that it has enlarged the field of choice, which has led to their supersession by much junior persons. There has been some controversy with respect to the exact number of vacancies. However, after the reply has been filed on behalf of the High Court, the petitioners have not seriously disputed the existence of 25 vacancies for the year 1997. Reliance is placed on a G.R. dated 20.3.1982, which inter-alia, provides zone of consideration as under: -------------------------------------------------------- Number of vacancies No. of Officers to be considered -------------------------------------------------------- 01 05 02 08 03 10 04 or more 3 times of the number of vacancies. -------------------------------------------------------- The Government Resolution issued by the State of Gujarat applies to the High Court establishment in view of Rule 50 of the Rules of 1992. Application of the said G.R. to the High Court establishment is not in dispute. Thus, for promotion to the post of Section Officers against 25 vacancies, 75 senior-most eligible Assistants fall within the zone of consideration. A submission was made to the Hon'ble the then Acting Chief Justice pointing out that out of 113 Assistants, 16 were not eligible as they had not passed the departmental examination, 6 were relieved from the cadre of Assistants for different reasons. Thus, 91 Assistants were eligible for consideration for promotion on the post of Section Officers. It was however, pointed out that as per the Government Notification, only 75 senior most eligible Assistants fall within the zone of consideration. Hon'ble the then Acting Chief Justice found that there was no reason not to call all the eligible candidates, when other 18 persons against whom adverse remarks are made in A.C.R. and against whom Departmental Enquiries are pending, are being also considered. The relevant order is extracted as follows:- "91 includes 12 against whom adverse remarks are made and 6 against whom enquiries are pending. Therefore, restricting to 75 may mean restricting to 75 minus 18. There is no reason to exclude 76 to 91 (16) eligible persons when 18 other persons also being considered." (Sd/-) 2.9.97" 6. The contention which I am required to answer is two-fold. Firstly, whether by extending the zone of consideration, the respondent-High Court has committed breach of the G.R. of 20th March 1982 and secondly, if there is breach of the G.R., what is the effect on the selection. 7. It is submitted by Mr S N Shelat, learned Addl.Advocate General appearing for the respondent-High Court that though Rule 50 (1) provides that "in respect of all such matters regarding the conditions of service of Court servants for which no provision or insufficient provision has been made in the rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the Government of Gujarat, which are not inconsistent with these Rules shall regulate the conditions of services of Court servants", the said provision is subject to "such modifications, variations and exceptions if any, in the said rules and orders, as the Chief Justice may, from time to time, specify". The Hon'ble the then Acting Chief Justice, after carefully considering the matter and having regard to the fact that among the eligible candidates, there were number of candidates against whom adverse remarks were there and departmental enquiries were pending decided to widen the zone of consideration with a view to give opportunity of appearing at the selection test to all the eligible candidates. It is thus, submitted that the Hon'ble the then Acting Chief Justice, having thus applied his mind to this aspect and directed to give opportunity to all the eligible candidates, of appearing at the test for selection, there is no question of contravention of any rule or regulation or orders of the State or the High Court Rules with respect to the zone of consideration. I am unable to agree with the submissions made by the learned Addl.Advocate General. 8. There is distinction between the exercise of powers by the Chief Justice in framing the rules with respect to the condition of service of Officers and servants of the High Court under Article 229, including the power of modification and variations of the rules of the State Government applicable to the High court employees by virtue of power preserved under Rule 50(1) of the Rule of 1992 and the exercise of powers by the Chief Justice as Executive Head of the High Court establishment under the rules. framed by him. The Chief Justice as well has to follow the rules framed by him punctually and faithfully as others are to follow. Any breach of rule by the Chief Justice cannot be construed as exercise of power of modification of the rules. Reverting to the direction dated 2.9.1997, in my view, the Hon'ble the then Acting Chief Justice was in error in considering that the 12 persons against whom there were adverse remarks, could be excluded from the zone of consideration. What is the effect of adverse remarks in the A.C.R., was a matter for the Selection committee to consider. A person cannot be excluded from the zone of consideration for the reason that there is adverse entry. Similarly, it was wrong to consider that six persons against whom departmental enquiry was pending, could be excluded from the zone of consideration. If the departmental enquiry is pending against a person in the eligibility list, the Selection Committee is required to follow a known procedure of "sealed cover". Thus, the very premises on which the zone of consideration has been extended is contrary to law. 9. Now I am turning to few decisions to which my attention has been invited by the learned Advocates for the parties. The first case on which reliance has been placed is the case of Vinod Kumar Sangal v. Union of India & Ors., reported in 1995 (4) SCC 246. It is essentially, a case of bunching of vacancies. In the said case, the petitioner was promoted as per the recommendation of the Departmental Promotion Committee of the year 1978. He however, did not accept the same for personal reasons. No Departmental Promotion Committee was convened during the period 1979 to 1984. However, during this period, he was given promotion on adhoc basis. Departmental Promotion Committee of 1985 did not recommend the petitioner for promotion. Challenging the rejection by the Departmental Promotion Committee of 1985, reliance was placed on the memorandum issued by the Government wherein emphasis was laid on holding the Departmental Promotion Committee annually. It was stressed in the memorandum that the delay in holding the meeting of the Promotion Committee results in bunching of vacancies which in turn enlarge the field of choice and upset the relative seniority positions in the higher grade on account of supersession. The memorandum also points out that large field of choice might result in excessive supersession. The respondent in the said case gave explanation for not holding the DPC during the period 1979 to 1984. The Court held that the reasons for not holding the DPC may be justified, but when the DPC met in the year 1985, it was required to make selection on yearly basis for the vacancies of each particular year. In view of this, the Apex Court upheld the contention of the petitioner that restricted field of choice would have given a better chance of being selected. The Court held thus - "The grievance of the appellant that the mode of selection adopted by the DPC in disregard of the instructions contained in the Office Memorandum dated 24.12.1980 operated to his prejudice, appears to be justified because if separate selection has been made for the vacancies which occurred in the years 1980, 1982, and 1983 the field of choice would have been much more restricted and the appellant would have had better chances of being selected." The Court accordingly directed the DPC to consider the petitioner's case for promotion on the higher post for each of the years separately i.e. against the vacancies occurred in 1980, 1982, 1983 and to give him promotion from the date and year he is selected. 10. In the case of Ashok Kumar Sharma & Ors. v. Chander Shekhar & Anr., reported in jT 1997 (4) SC 99, at the competitive examination for recruitment on the post of Junior Engineer, 33 candidates also appeared who were not eligible on the relevant date. Though they had appeared at the B.E. Examination, the result was not declared and as such they were not eligible. However, the said 33 candidates were selected. Their appointments were challenged. The High Court held that they were not eligible but instead of setting aside the appointments, the court directed that they may be placed in seniority below qualified selected candidates. The 33 candidates approached the Apex Court. The appeals came up for hearing before the Bench comprising of Hon'ble Messrs Justice Dr. T K Thommen, V Ramaswami and R M Sahai, JJ. There was difference of opinion on the crucial question though all the three Judges agreed on the ultimate result. Majority held that allowing 33 candidates to appear for the interview was not impermissible. The learned Judges were of the opinion that by allowing the said persons to appear for the interview, the recruiting authority was able to get the best talents available. It was certainly in the public interest that the interview was made as broad-based as possible on the basis of qualification. However, R M Sahai, J held that 33 candidates should not have been allowed to appear for the interview since they did not possess the requisite academic/technical qualifications by the prescribed date. However, the Bench allowed the appeal filed by the 33 candidates and set aside the judgement of the Jammu & Kashmir High Court. One of the original writ petitioners filed a review application and contended that just because some persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis and as such their applications ought to have been rejected at the inception itself. The proposition was sought to be supported by the decision of the Apex Court in the case of Rekha Chaturvedi (Smt.) v. University of Rajasthan & Ors., reported in JT 1993 (1) SC 220. The Apex Court disapproved the majority opinion that by allowing the 33 candidates to appear for the interview, the authority was able to get the best talents available. The three Judges Bench found the said case to be a clear case of error of law and error apparent on the face of the record. This decision is the complete answer to the view taken by the Hon'ble the then Acting Chief Justice when he extended the zone of consideration on the ground that it will give opportunity to all the eligible candidates. Thus, it is held that the zone of consideration cannot be extended in breach of the rule, on the ground of adverse A.C.R. or pendency of enquiry against some of the candidates or to make the selection broad based. 11. Mr S N Shelat, learned Addl.Advocate General appearing for the respondent-High Court has vehemently argued that enlarging the zone of consideration will not have an invalidating effect on the selection made by the duly constituted selection board. He has strongly placed reliance on the decision of the Apex Court in the case of All India State Bank Officers Federation & ors. v. Union of India & Ors., reported in JT 1996 (8) SCC 550. In the said case, the All India State Bank Officers Federation, a registered Trade Union of Officers of the State Bank of India challenged the new promotion policy of the Bank wherein the concept of zone of consideration was done away. It was contended that not to limit the zone of consideration to three or four times the number of vacancies was unreasonable. Attention was invited to the fact that consideration of all eligible candidates led to promotion of large number of relatively junior officers. The Court rejected the contention having found no error in the policy of "Not limiting zone of consideration". In the instant case, the application of the rule of zone of consideration is not in dispute. It is a case of selection in breach of G.R. dated 20.3.1982. In the State Bank Officer's case (supra), an alternate attempt was made to seek support from the guidelines issued by the Government of India, providing the zone of consideration. In para 19 the contention was rejected on the ground that the guidelines expressly relate to Nationalised Banks and not to the State Bank of India. Thus, it is evident that the State Bank Officer's case (supra) is not an authority on the point of selection in breach of existing policy of limited zone of consideration. Mr Shelat has invited my attention to para 13 of the State Bank Officer's case (supra), wherein the Apex Court, while distinguishing Ashok Kumar Yadav's case (1985 (4) SCC 417) referred to the question posed and the answer therein, holding that the violation of rule of limited zone of consideration will not have invalidating effect on the selection. Ashok Kumar's case was a case of direct recruitment for 61 posts in Haryana Civil Services. As per the rule, no candidate was eligible for viva voce test unless he had obtained 45% marks. 1300 candidates secured 45% and above marks. The Haryana Public Service Commission called all the 1300 candidates for interview which continued for about half an year. Some of the candidates who were not selected challenged the selection. The High Court, after referring to Kothari commission Report on "Recruitment Policy and Selection Method for Civil Service Examinations" held that where there is composite test consisting of written test and viva voce test, the number of candidates to be called for interview in order of marks obtained in the written examination should not exceed twice or at the highest thrice the vacancies to be filled, quashed the selection. In that context, the Apex Court held that selection made by the Haryana Public Service Commission cannot be said to be vitiated merely on the ground that more candidates were called for interview against the view that not more than twice or at the most thrice the number of vacancies should be called for interview. It may be noticed that there was no policy decision with respect to limited zone of consideration encompassed in any rule or written guidelines. Thus, Ashok Kumar's case is also not a case of breach of any statutory rule or executive instructions containing "limited zone