Case: SUJATA KOHLI Vs. REGISTRAR GENERAL, HIGH COURT OF DELHI &amp; ORS

merit and in any case, such requirements cannot be lesser than the requirements at entry level. In this view of the matter too, the appellant was conscious of the fact that for upward movement in DHJS, merit would acquire primacy; and that seniority alone was not going to be decisive for promotion to the higher posts of District and Sessions Judge and the Principal Judge, Family Court. Although there is no requirement in law that criteria for promotion based on ACR alone be also notified but, in any case, in the scheme of the rules and the requirements of the posts in question, the appellant cannot contend that she was not aware of the position that comparative merit of the incumbents shall be a crucial factor for any upward progression in the cadre. 18.2. It is also noteworthy that when from the year 2009, such exercise was undertaken by the High Court establishment to lay down proper norms and criteria for upward progression in DHJS, both the Associations of the judicial officers namely, Delhi Higher Judicial Service Officers Association as also Delhi Judicial Service Officers Association, made representations after the Full Court meeting dated 15.01.2010 and gradual implementation of the criteria was provided after due consideration of the said representations. It is not the case of the appellant that she is not a member of the Association of DHJS officers. 18.3. Viewed from any angle, it is but apparent that the appellant was aware of, and shall always be deemed to be conscious of, the requirement that any promotion to the post of District and Sessions Judge or Principal Judge, Family Court would only be on the basis of such norms where merit would be a crucial factor and seniority alone would not suffice. It follows as a necessary corollary that the appellant was also conscious of the position that while making any such promotion, the assessment would be based on the competitive merit of the candidates in the zone of consideration; and if any candidate in such zone of consideration was possessed of better merit than herself, he would be preferred for promotion. 19. Coming now to the operation of the criteria in question, we are clearly of the view that providing for the norms for assessment of the comparative merits of the candidates in the zone of consideration, was squarely within the domain of the High Court; and infringement of the right of consideration could only be suggested if different yardsticks or different norms were provided and applied qua the similarly circumstanced persons. However, this is not the case of the appellant nor it could be so because the High Court has apparently taken up all the persons in the zone of consideration at the relevant time and has accorded promotion on the basis of comparative merit of the candidates. The appellant, when could not stand in such competitive merit position, cannot raise a complaint about infringement of any of her legal rights. It is not the case of the appellant that anybody junior to her and standing equal in merit or anybody not fulfilling the criteria laid down by the High Court has been promoted. 19.1. Though, in all fairness, the appellant has not attempted to question the reasonableness of the criteria as provided by the High Court but, having regard to the issues raised, we feel inclined to observe that looking to the duties and responsibilities attached with the higher posts of District and Sessions Judge and Principal Judge, Family Court, the High Court cannot be faulted in providing for a reasonable method of assessment of the requisite merit in the manner that a candidate in the zone of consideration ought to be possessing minimum five very good ACRs in the preceding five years from the base year. As already noticed, in fact, the criteria so adopted had been the identical one as provided for the members of IAS in the equivalent pay scales. 20. Therefore, the contentions urged on behalf of the appellant about non-communication of the criteria for promotion turn out to be totally meritless and the grievance as suggested on behalf of the appellant cannot be considered to be a legal grievance. 21. From the material placed on record, it is also apparent that the case of the appellant was duly considered for such promotion along with the other incumbents but herself and a few others were not promoted for not fulfilling the criteria as provided in the impugned resolutions. The fact that the case of the appellant was also duly considered is amply borne out from the minutes of the Full Court meetings, including those of the meeting dated 09.01.2015 , 16.04.2015, 19.09.2015 and 28.11.2016 (the relevant parts of two such resolutions dated 09.01.2015 and 28.11.2016 have been extracted in paragraphs 5.6.1 and 5.6.2 hereinabove). Therefore, the appellant cannot raise a grievance that the respondent establishment has not accorded due consideration to her case for promotion. As noticed, case of the appellant was duly considered but she could not be promoted for not possessing the requisite gradings in her ACRs of the relevant period. 22. Having regard to the facts and circumstances of the present case, the decisions in the cases of Mahesh Narain and Nirmal Chandra Bhattacharjeee (supra) are of no avail to the appellant because the fact situation of the said cases were entirely different and this Court held that an employee cannot be denied the benefit of a provision for promotion which was amended after he became eligible for being promoted. In the present case, the High Court did not change the eligibility criteria for appointment to the post of District and Session Judge or Principal Judge, Family Court but merely evolved a selection criteria for evaluation of eligible candidates. There had not been any denial of a pre-existing right of the appellant, who entered the zone of consideration only in the year 2014-15 whereas, the criteria in question was implemented for the appointments made from the year 2012.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]15.1. It does not require any elaborate discussion to say that the right to be considered for promotion is a fundamental right of equality of opportunity in the matter of employmentThe matter in issue in the present appeal relates to promotion to the posts of District and Sessions Judge or Principal Judge, Family Court within the cadre of DHJS. Apparently, no separate provision is found in the Rules of 1970 as regards such upward progression within the cadre and obviously, for such a matter, the residuary provision as contained in Rule 27 comes into operation by virtue of which, the directions or orders for the time being in force and applicable to the officers of comparable status in IAS would apply15.3.1 At this juncture, we may observe that the appellant had attempted to question the said Rule 27 of the Rules of 1970 as being ultra vires, particularly with reference to the decision of this Court in the case of All India Judges Association (supra). In our view, the High Court has rightly rejected such a challenge to Rule 27 because this residuary clause in the Rules of 1970 does not appear offending the law declared by this Court in any manner. This residuary clause is not of equating the judicial officers with the executive officers but only provides that in regard to the matters for which no provision or insufficient provision has been made in the Rules of 1970, the relevant rules, directions or orders as applicable to IAS shall regulate the conditions of service of the officers of DHJS. A perusal of the other provisions in the Rules of 1970 makes it clear that reference to the service conditions of the members of IAS is not an anathema to these rules and, on the contrary, wherever necessary, the applicable rules, orders or directions concerning the members of IAS do govern the service conditions of the judicial officers too. For example, in the matter of pay fixation of a promoted officer, it is provided in Rule 20 that such pay shall be fixed in the referred time scale in accordance with the financial rules, regulations et cetera, as applicable from time to time to the members of IAS; and as per Rule 26, the direct recruits are required to produce before appointment, a certificate of physical fitness in accordance with the standards prescribed for IAS. Such provisions, essentially meant for proper regulation of the service, by themselves, do not put the members of DHJS at par with the members of IAS for all purposes. Moreover, as noticed, what the High Court establishment has provided by way of the impugned resolutions are the norms for promotion while taking cue from the norms applicable to the members of IAS in the equivalent pay scale. Providing for such norms does not in any manner stand at conflict with the principles laid down in the case of All India Judges Association (supra). The challenge to the said Rule 27 has rightly been rejected by the High Court15.4.1. As noticed, in the case of Ajit Singh (supra), even while holding that the right to be considered for promotion is a fundamental right, the Constitution Bench pointed out the subtle distinction in the operation of the norms of seniority on one hand and any rule requiring consideration of merit on the other while observing, inter alia, that if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious, the next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted16. Keeping the principles aforesaid in view, when we revert to the scheme of the Rules of 1970, the striking feature is that even at the entry level, the promotions are to be made either on merit-cum-seniority basis (As per clause (a) of Rule 7(1) and Rule 7A of the Rules of 1970) or on merit basis (As per clause (b) of Rule 7(1) of the Rules of 1970) . Further, grant of Selection Grade and Super Time Scale is also on assessment of merit–cum–seniority (As per Rule 18 of the Rules of 1970 ) . In the given scheme of the Rules of 1970, it is difficult to countenance any suggestion that in DHJS, merit could be forsaken at any level or only seniority be given primacy in the matter relating to upward progression to the higher posts of District and Sessions Judge or Principal Judge, Family Court. Rather, looking to the nature of posts, in every higher progression, merit would play a major role and would, perforce, acquire primacy17.1. In an overall comprehension of the matter, we have no hesitation in endorsing the views of the High Court in the impugned order that the no- norms position for upward progression in DHJS, as existing prior to the year 2009, could not have been continued with reorganisation of the District Courts and certain norms, commensurate with the posts in question, were required to be provided; and were accordingly provided with reference to the prescriptions for the officers of IAS in the equivalent pay scales. It has been asserted on behalf of the contesting respondent, and remains indisputable, that for the officers of such equivalent pay scales, the requirement had been of five very good ACR gradings (i.e., A grading) for five years preceding the date of consideration for higher positions. The High Court establishment had further been reasonable and balanced in its approach when such threshold requirement of five very good ACR gradings was not foisted on the officers immediately and, in keeping with the position obtainable in the past as also keeping in view the merit requirements, took a considered decision after examining the representations that such criteria be implemented gradually and started with the norms of two very good with three good ACR gradings for the year 2009 and systematically enhanced the norms to three very good with two good ACR gradings for the year 2010; four very good with one good ACR gradings for the year 2011; and eventually provided for five very good ACR gradings for the year 2012 and onwards17.2. In the given fact situation and the methodology of gradual implementation adopted by the High Court, the suggestion on the part of the appellant that there had been any so-called retrospective operation of revised criteria remains totally bereft of substance and could only be rejected18. Turning now to the main plank of the submissions on behalf of the appellant that she was not made aware of such so-called revised criteria, in our view, such submissions carry several shortcomings of their own. As noticed, the appellant joined DHJS in the year 2002 and eventually stood second in rank in her batch. She was confirmed with effect from 25.11.2004. She was, and would always be presumed to be, aware of all the requirements of the Rules of 1970. Moreover, the appellant, a member of DHJS, cannot suggest that she remained oblivious of the developments about creation of 9 Civil Districts in the year 2008 and increase in the strength of District and Sessions Judges to 11. The appellant was also aware of the fact that no specific provision was available in the Rules of 1970 as regards upward progression in DHJS, particularly to the posts of District and Sessions Judge and Principal Judge, Family Court and hence, by virtue of Rule 27 of the Rules of 1970, she would be deemed to be having constructive knowledge that the criteria to be adopted for such upward progression would be that as applicable for the equivalent posts in IAS. The Office Memorandum dated 18.02.2008 issued by the Government of India in its Ministry of Personnel, Public grievances and Pensions (Department of Personnel and Training) has been placed on record by the contesting respondent and it is not the case of the appellant that she was not aware of this Office Memorandum issued by the Government of India ( In the said OM, it had, inter alia, been provided that, – …in order to ensure greater selectivity at higher level of administration, the DPC may ensure that for the promotion to the scale of Rs.18,400–22,400 and above, the prescribed benchmark of Very Good is invariably met in all ACRs of five years under consideration…) . When it had consistently been provided that for promotion to the scale of Rs. 18,400 – 22,400 and above, the prescribed benchmark of very good ought to be met in all ACRs of five years under consideration; and when the higher posts of District and Sessions Judge and Principal Judge, Family Court do carry much higher scales of pay (vide Rule 18 ibid.), neither the High Court could be faulted in applying the same benchmark for such higher posts in DHJS nor the appellant could feign ignorance about the same18.1. Apart from the above, it is noteworthy that in the Rules of 1970, even the entry level promotion to the post in DHJS is on the basis of merit-cum- seniority or merit. Viewed in the light of such requirements, it goes without saying that any upward progression in DHJS could only be on the higher requirements of merit and in any case, such requirements cannot be lesser than the requirements at entry level. In this view of the matter too, the appellant was conscious of the fact that for upward movement in DHJS, merit would acquire primacy; and that seniority alone was not going to be decisive for promotion to the higher posts of District and Sessions Judge and the Principal Judge, Family Court. Although there is no requirement in law that criteria for promotion based on ACR alone be also notified but, in any case, in the scheme of the rules and the requirements of the posts in question, the appellant cannot contend that she was not aware of the position that comparative merit of the incumbents shall be a crucial factor for any upward progression in the cadre18.2. It is also noteworthy that when from the year 2009, such exercise was undertaken by the High Court establishment to lay down proper norms and criteria for upward progression in DHJS, both the Associations of the judicial officers namely, Delhi Higher Judicial Service Officers Association as also Delhi Judicial Service Officers Association, made representations after the Full Court meeting dated 15.01.2010 and gradual implementation of the criteria was provided after due consideration of the said representations. It is not the case of the appellant that she is not a member of the Association of DHJS officers18.3. Viewed from any angle, it is but apparent that the appellant was aware of, and shall always be deemed to be conscious of, the requirement that any promotion to the post of District and Sessions Judge or Principal Judge, Family Court would only be on the basis of such norms where merit would be a crucial factor and seniority alone would not suffice. It follows as a necessary corollary that the appellant was also conscious of the position that while making any such promotion, the assessment would be based on the competitive merit of the candidates in the zone of consideration; and if any candidate in such zone of consideration was possessed of better merit than herself, he would be preferred for promotion19. Coming now to the operation of the criteria in question, we are clearly of the view that providing for the norms for assessment of the comparative merits of the candidates in the zone of consideration, was squarely within the domain of the High Court; and infringement of the right of consideration could only be suggested if different yardsticks or different norms were provided and applied qua the similarly circumstanced persons. However, this is not the case of the appellant nor it could be so because the High Court has apparently taken up all the persons in the zone of consideration at the relevant time and has accorded promotion on the basis of comparative merit of the candidates. The appellant, when could not stand in such competitive merit position, cannot raise a complaint about infringement of any of her legal rights. It is not the case of the appellant that anybody junior to her and standing equal in merit or anybody not fulfilling the criteria laid down by the High Court has been promoted19.1. Though, in all fairness, the appellant has not attempted to question the reasonableness of the criteria as provided by the High Court but, having regard to the issues raised, we feel inclined to observe that looking to the duties and responsibilities attached with the higher posts of District and Sessions Judge and Principal Judge, Family Court, the High Court cannot be faulted in providing for a reasonable method of assessment of the requisite merit in the manner that a candidate in the zone of consideration ought to be possessing minimum five very good ACRs in the preceding five years from the base year. As already noticed, in fact, the criteria so adopted had been the identical one as provided for the members of IAS in the equivalent pay scales20. Therefore, the contentions urged on behalf of the appellant about non-communication of the criteria for promotion turn out to be totally meritless and the grievance as suggested on behalf of the appellant cannot be considered to be a legal grievance21. From the material placed on record, it is also apparent that the case of the appellant was duly considered for such promotion along with the other incumbents but herself and a few others were not promoted for not fulfilling the criteria as provided in the impugned resolutions. The fact that the case of the appellant was also duly considered is amply borne out from the minutes of the Full Court meetings, including those of the meeting dated 09.01.2015 , 16.04.2015, 19.09.2015 and 28.11.2016 (the relevant parts of two such resolutions dated 09.01.2015 and 28.11.2016 have been extracted in paragraphs 5.6.1 and 5.6.2 hereinabove). Therefore, the appellant cannot raise a grievance that the respondent establishment has not accorded due consideration to her case for promotion. As noticed, case of the appellant was duly considered but she could not be promoted for not possessing the requisite gradings in her ACRs of the relevant period22. Having regard to the facts and circumstances of the present case, the decisions in the cases of Mahesh Narain and Nirmal Chandra Bhattacharjeee (supra) are of no avail to the appellant because the fact situation of the said cases were entirely different and this Court held that an employee cannot be denied the benefit of a provision for promotion which was amended after he became eligible for being promoted. In the present case, the High Court did not change the eligibility criteria for appointment to the post of District and Session Judge or Principal Judge, Family Court but merely evolved a selection criteria for evaluation of eligible candidates. There had not been any denial of a pre-existing right of the appellant, who entered the zone of consideration only in the year 2014-15 whereas, the criteria in question was implemented for the appointments made from the year 201223. For what has been discussed hereinabove, we are clearly of the view that the appellant has not been denied fair and reasonable consideration of her case for promotion to the posts of District and Sessions Judge/ Principal Judge, Family Court by operation of the criteria laid down in the impugned resolutions. Point number (1) is, accordingly, answered against the appellantIn our view, the submissions remain totally meritless and it cannot be said that the contesting respondent has caused any prejudice to the appellant in the matter of ACR gradings25. The fundamental requirement in law for communication of every entry in ACR to the employee concerned, as settled in the case of Dev Dutt (supra) and reaffirmed in the case of Sukhdev Singh v. Union of India: (2013) 9 SCC 566 , is neither of any doubt nor of any dispute25.1. In our view, reference to the aforesaid principles remains totally misplaced in the fact situation of the present case. It is not in dispute that the appellant was, in fact, informed of every grading made in her ACR. She was awarded B+ (good) in the years 2010, 2011, 2012 and 2013; and A (very good) in the year 2014. From the material placed on record, it appears that the appellant never challenged her gradings for any year except that for the year 2011 when she requested for upgradation of her ACR grading from B to B+ or A; and the High Court, acceding to her request, upgraded her ACR to B+. As noticed, the impugned resolution dated 27.01.2011 came to be adopted after due consideration of the representations made to the High Court and in conformity with the criteria provided by the Government of India for the posts equivalent in scale to that of District Judges. However, the criteria of having A (very good) grading in the preceding five years was implemented in a phased manner, as already noticed hereinbefore. The appellant, not being oblivious of the position that for any upward progression in DHJS, comparative merit would be a key factor, chose to remain contented with her grading at B+ in the relevant years and did not question the same at the appropriate time and in appropriate manner. That being the position, the appellant cannot be acceded the right to contend now and at this stage that the ACR gradings have operated adverse to her. The requirements of the decision in Dev Dutt (supra) were duly met with communication of ACR gradings to the appellant26. Having regard to the circumstances of this case, we are impelled to observe that while raising grievance with regard to the impact and effect of ACR gradings, the appellant appears to have missed out the fundamental factor that for the promotions in question, an individuals minimum merit, by itself, was not going to be decisive; but the relevant factor was going to be comparative merit of the persons in the zone of consideration. That being the position, when the persons in zone of consideration possessing A (very good) grading have been promoted in preference to her, the appellant cannot raise a grievance about her gradings after such promotions27. The other contention as on behalf of the appellant that only the overall ACR grading was communicated but not the point-wise grading or criteria for grading, again, does not advance the cause of the appellant in any manner. As noticed, the appellant did not challenge her B+ gradings in the years 2010, 2012 and 2013. She was awarded B grading in the year 2011 and upon her representation, the same was upgraded to B+. When the appellant had not otherwise challenged her B+ gradings for the years under consideration, she would not be entitled to raise any question on the process or criteria for such award of gradings. Even otherwise, the appellant has failed to show any legal requirement on the respondent establishment to supply to her anything other than the overall grading. Another feeble suggestion on behalf of the appellant, as noticed in the impugned order by the High Court, about want of knowledge of gradings of other officers has rightly not been pressed before us. The grading of an individual officer remains a matter between the officer and the establishment and any other officer cannot claim to be informed about the grading of any other officer as a matter of rightThese submissions are also sans merit and do not in any manner advance the cause of the appellant in the present case. This is for the simple reason that the system and method for awarding of the grades in ACR at the relevant time was equally applicable to all the judicial officers; and the gradings, not only of the appellant but of all other officers too, were made by way of the same methodology. Therein too, as noticed, the judicial officers work and performance was supervised and graded by the committees comprising of three Honble Judges and ultimately, the gradings were finalised by the Full Court. In the impugned order also, the High Court found such system to be a merited one but indicated the want of uniform set of rules or guidelines for all the appraisal committees to follow; and thereafter proceeded to lay down certain norms to be kept in view by the evaluation authorities. The observations by the High Court, essentially meant for improvement of the system with uniform set of guidelines, do not nullify the effect of the ACRs already marked by the existing system. The guidelines indicated by the High Court in the order impugned could only be construed as being meant for future implementation. Nothing turns upon such observations in relation to the case of the appellant29. For what has been discussed hereinabove, we are clearly of the view that the appellant has not been able to establish that she had suffered any prejudice in the matter of ACR gradings. Point number (2) is also, accordingly, answered against the appellant.