RAVIKUMAR DHANSUKHLAL MAHETA & ANR. versus HIGH COURT OF GUJARAT & ORS.
[2024] 5 S.C.R. 1074, Supreme Court of India, 2024
Outcome: Dismissed (Dismissed)
Segment: Issues
[2024] 5 S.C.R. 1074 : 2024 INSC 436
Ravikumar Dhansukhlal Maheta & Anr. 
v. 
High Court of Gujarat & Ors.
(Writ Petition (c) No. 432 of 2023)
17 May 2024
[Dr. Dhananjaya Y. Chandrachud, CJI, J.B. Pardiwala* 
and Manoj Misra, JJ.]
Issue for Consideration
(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 Gujarat State Judicial Service Rules, 2005 
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).
Headnotes†
Constitution of India – Art. 32 and Art.226 – Maintainability 
of the Writ Petition under Article 32 – 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:
Held: Two judicial officers of the rank of Civil Judge (Senior Division) 
governed by the Gujarat State Judicial Service Rules, 2005 have 
invoked the jurisdiction under Article 32 of the Constitution – The 
availability of an alternative remedy does not in any manner 
affect the maintainability of the writ 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. [Paras 40, 41]
* Author
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Gujarat State Judicial Service Rules, 2005 – The Legislative 
History and Scheme of the Gujarat State Judicial Service 
Rules, 2005 – discussed.
Gujarat State Judicial Service Rules, 2005 – Rule 5(1) with 
Rule 5(3) – Modes of recruitment:
Held: A combined reading of the 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-cumSeniority’; (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. [Para 67]
Service Law – Evolution of the Principles of ‘Merit-cum-
Seniority’ and ‘Seniority-cum-Merit’ in Service Jurisprudence  – 
discussed.
Service Law – Principle of ‘Seniority-cum-Merit’:
Held: The principle of ‘Seniority-cum-Merit’ postulates that:  
(i) Minimum requirement of merit and suitability which is necessary 
for the higher post can be prescribed for the purpose of promotion – 
(ii) Comparative Assessment amongst the candidates is not 
required – (iii) Seniority of a candidate is not
a determinative factor 
for promotion but has a predominant role – (iv) Upon fulfilling the 
minimum qualifications, promotions must be based on inter-se 
seniority. [Para 98 (I)]
Service Law – Principle of the ‘Merit-cum-Seniority’:
Held: The principle of ‘Merit-cum-Seniority’ postulates that:  
(i) Merit plays a predominant role in and seniority alone cannot be 
given primacy; (ii) Comparative Assessment of Merit is a crucial, 
though not a mandatory, factor; (iii) Only where merit is equal in 
all respects can inter-se seniority be considered – Meaning that 
a junior candidate can be promoted over the senior if the junior is 
more meritorious. [Para 98 (II)]
Service Law – Principles of ‘Merit-cum-Seniority’ and ‘Seniority-
cum-Merit’ – Nature of these principles:
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Held: The principle of ‘Merit-cum-Seniority’ and ‘Seniority-cum-
Merit’ are a flexible and a fluid concept akin to broad principles 
within which the actual promotion policy may be formulated – They 
are not strict rules or requirements and by no means can supplant 
or take the place of statutory rules or policies that have been 
formulated, if any – These principles are dynamic in nature very 
much like a spectrum and their application and ambit depends upon 
the rules, the policy, the nature of the post and the requirements 
of service – The principles applicable to promotion such as the 
principle of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ can 
best be described as two ends of a spectrum – They are broad 
categories or frameworks for promotion and do represent the actual 
modalities by which promotions are to take place – It is the rules 
and the promotion policy, along with the intention of the legislature 
or the selection board, as the case may be, that supplements these 
principles and delineates the actual modality of how promotion 
is to take place – Through these rules and promotion policy, 
the legislature or the selection body specifies the area and the 
parameters or the weightage which is to be given to the aspect of 
“Merit” and “Seniority” on the said spectrum. [Para 110]
Constitution of India – Art. 235 – High Court as a custodian 
of the District Judiciary under Article 235 of the Constitution:
Held: It is clear that when it comes to promotion of judicial officers 
of the District Judiciary, the control vests with the High Court under 
Article 235 of the Constitution – The High Court being the sole 
authority in this regard can clearly lay down rules and policies 
pertaining to promotions which includes the power to specify the 
criteria and parameters it deems most suitable and appropriate for 
the purpose of promotion and the manner in which promotion is 
to be made as long as it is within the contours of what has been 
laid down in All India Judges’ Association (3). [Para 119]
Service Law – Objectives intended to be achieved through All 
India Judges’ Association (3) – Two-fold objectives:
Held: (i) First, to ensure that unlike the traditional promotion policy 
under which seniority alone was considered for promotion, a new 
policy should be devised under which seniority would be considered 
for promotion, but only for those candidates who possessed the 
minimum necessary standard of suitability for the post, and;  
(ii) Secondly, to prevent loss of motivation amongst the relatively 
junior members of the service, a third category for promotion to
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the Higher Judicial Service should be created, wherein promotions 
would be given strictly on the basis merit, to be ascertained through 
a limited departmental competitive examination – Thus, while the 
comparison of inter-se merit to determine the most meritorious 
candidates was the procedure to be adopted for filling up the seats 
under the newly created category, it was never the intention of 
this Court in the aforesaid decision to mandate the comparative 
assessment of merit in the category of regular promotions based 
on seniority – The only additional requirement which was provided 
for by the aforesaid decision for this category of candidates was the 
possession of certain minimum objectively determinable standard 
of suitability. [Paras 127, 128]
Service Law – Judiciary – Promotion – Introduction of a 
suitability test:
Held: The objective sought to be achieved by the introduction of 
a suitability test in the regular promotional category was limited 
to the assessment of a minimum standard of suitability – It would 
be incorrect to say that the marks scored by a candidate in the 
suitability test are proportional to the merit of the candidate – 
This can be understood with the aid of an illustration – Take a 
case wherein the minimum marks required to be obtained in the 
suitability test is ‘x’; then for the purpose of 65% promotional 
quota, as soon as a candidate obtains
‘x’ marks in the suitability 
test, such a candidate becomes eligible for being considered for 
promotion in that category subject to their seniority vis-à-vis the 
other suitable candidates – It cannot be said that a candidate 
who obtains (x + 10) marks is more meritorious or more suitable 
than those candidates who obtain ‘x’ or (x + 5) marks in the 
suitability test – Every candidate who scores higher than or equal 
to ‘x’ marks in the suitability test is considered equally suitable 
and equally meritorious for the purpose of 65% promotional 
category. [Para 129]
Gujarat State Judicial Service Rules, 2005 – ‘Merit-cum-
Seniority’ in context of:
Held: The term ‘Merit-cum-Seniority’ in context of 2005 Rules 
implies that both merit and seniority would be considered in the 
promotion of a candidate, with merit being determined on the basis 
of a suitability test – The exact modalities of how merit and seniority 
are to be apportioned is a legislative function and is to be performed 
keeping in mind the unique requirements and circumstances of
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the organization – In the instant case, there is no fault with the 
promotion process adopted by the High Court of Gujarat as the 
same fulfils the twin requirements stipulated in All India Judges’ 
Association (3) being: – (I) The objective assessment of legal 
knowledge of the judicial officer including adequate knowledge 
of case law and; (II) Evaluation of the continued efficiency of the 
individual candidates – The four components of the Suitability 
Test as prescribed under the recruitment notice dated 12.04.2022 
comprehensively evaluate (i) the legal knowledge including 
knowledge of the case law through the objective MCQ – based 
written test AND (ii) the continued efficiency by evaluation of the 
ACRs, average disposal and past judgments of the concerned 
judicial officer. [Paras 132, 141(D), 141(E)]
Gujarat State Judicial Service Rules, 2005 – Suggestions to 
make the suitability test more meaningful:
Held: The High Court of Gujarat is proposed to amend its Rules 
appropriately in line with the Uttar Pradesh Higher Judicial Service 
Rules, 1975 where the recruitment process has been elaboratively 
laid down – The minimum standard to be objectively assessed 
by way of a suitability test should be made more efficacious and 
productive – The Court suggests the following: (i) Apart from the 
four components included in the Suitability Test, an additional 
fifth component in the form of an Interview or Viva Voce
should 
also be included in order to assess the ability and knowledge 
of the candidates; (ii) The High Court may consider enhancing 
the minimum specified threshold of marks as prescribed in the 
suitability test and each of its component; (iii) The evaluation of 
judgments delivered by the judicial officer being considered for 
promotion should be of the last two years instead of one year; 
(iv) Instead of seniority being considered at the very last stage 
of the process, some marks may be allocated for seniority at the 
stage of suitability test and thereafter, the final select list may be 
prepared on the basis of total marks. [Para 140]
Service Law – Gujarat State Judicial Service Rules, 2005 – 
Suitability of each candidate should be tested on their own 
merit:
Held: What has been conveyed by this Court in All India Judges’ 
Association (3) is that the suitability of each candidate should be 
tested on their own merit – The aforesaid decision does not speak 
about comparative merit for the 65% promotional quota – In other
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words, what is stipulated is the determination of suitability of the 
candidates and assessment of their continued efficiency with 
adequate knowledge of case law. [Para 141A]
Service Law – Gujarat State Judicial Service Rules, 2005 – 
Promotion – 65% promotional quota – Suitability test – 
Requisite marks – Merit list:
Held: For the 65% promotional quota this Court in All India Judges’ 
Association (3) did not state that after taking the suitability test, 
a merit list should be prepared and the judicial officers should be 
promoted only if they fall in the said merit list – It cannot be said 
to be a competitive exam – Only the suitability of the judicial officer 
is determined and once it is found that candidates have secured 
the requisite marks in the suitability test, they cannot be thereafter 
ignored for promotion – However, it is clarified that for the 65% 
promotional quota, it is for a particular High Court to prescribe 
or lay down its own minimum standard to judge the suitability 
of a judicial officer, including the requirement of comparative 
assessment, if necessary, for the purpose of determining merit 
to be objectively adjudged keeping in mind the statutory rules 
governing the promotion or any promotion policy in that regard. 
[Paras 141B, 141C]
Service Law – Gujarat State Judicial Service Rules, 2005 – 
It was 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 the 
final select list strictly in accordance with the seniority of 
the candidates:
Held: This Court is of the view that if the contention of the petitioners 
were to be accepted then it would completely obliterate the fine 
distinction between the two categories of promotion in the cadre 
of District & Sessions Judge by way of 65% promotion on the 
basis of ‘Merit-cum-Seniority’ and 10% promotion strictly on the 
basis of merit – In other words, the 65% quota for promotion will 
assume the character of the 10% quota for promotion by way of a 
departmental competitive examination which is distinct in its nature 
since the latter is strictly based on merit. [Para 141F]
Service Law – Gujarat State Judicial Service Rules, 2005 – 
Whether promotion of Civil Judges (Senior Division) to the
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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):
Held: There was no fault with the promotion process adopted by 
the High Court of Gujarat as the same fulfils the twin requirements 
stipulated in paragraph 27 of All India Judges’ Association (3) 
being: – (I) The objective assessment of legal knowledge of the 
judicial officer including adequate knowledge of case law and;  
(II) Evaluation of the continued efficiency of the individual 
candidates  – The four components of the Suitability Test as 
prescribed under the recruitment notice dated 12.04.2022 
comprehensively evaluate (i) the legal knowledge including 
knowledge of the case law through the objective MCQ-based 
written test AND (ii) the continued efficiency by evaluation of the 
ACRs, average disposal and past judgments of the concerned 
judicial officer – The impugned final Select List dated 10.03.2023 
is not contrary to the principle of ‘Merit-cum-Seniority’ as stipulated 
in Rule 5(1)(I) of the 2005 Rules. [Paras 141D, 141E, 143]
Case Law Cited
All India Judges’ Association (3) v. Union of India & Ors. [2002] 
2 SCR 712 : (2002) 4 SCC 247; Mohammed Ishaq v. S. 
Kazam Pasha & Anr. [2009] 7 SCR 1098 : (2009) 12 SCC 748; 
Maharashtra State Judicial Service
Assn. & Ors. v. High Court 
of Judicature at Bombay & Ors. [2002] 1 SCR 1125 : (2002) 3 
SCC 244; Malik Mazhar Sultan & Anr. (1) v. U.P. Public Service 
Commission [2023] 12 SCR 682 : (2006) 9 SCC 507; All India 
Judges’ Association (4) v. Union of India (2010) 15 SCC 170; Malik 
Mazhar Sultan & Anr. (3) v. U.P. Public Service Commission & 
Ors. (2009) 17 SCC 530; State of Kerala & Anr. v. N.M. Thomas & 
Ors. [1976] 1 SCR 906 : (1976) 2 SCC 310; Jagathigowda, C.N. 
& Ors. v. Chairman, Cauvery Gramina Bank & Ors. [1996] Suppl. 
4 SCR 190 : (1996) 9 SCC 677; Rajendra Kumar Srivastava & 
Ors. v. Samyut Kshetriya Gramin Bank & Ors. [2009] 15 SCR 
936 : (2010) 1 SCC 335; B.V. Sivaiah & Ors. v. K. Addankl Babu 
& Ors. [1998] 3 SCR 782 : (1998) 6 SCC 720; K. Samantaray v. 
National Insurance Co. Ltd. [2003] Suppl. 3 SCR 669 : (2004) 9 
SCC 286; Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya 
Gramin Bank & Ors. [2006] Supp. 8 SCR 760 : (2006) 12 SCC 
574; Shriram Tomar & Anr. v. Praveen Kumar Jaggi & Ors. [2019]
[2024] 5 S.C.R. 
1081
Ravikumar Dhansukhlal Maheta & Anr. v. 
High Court of Gujarat & Ors.
6 SCR 590 : (2019) 5 SCC 736; Madan Mohan Choudhary v. 
State of Bihar [1999] 1 SCR 596 : (1999) 3 SCC 396; High Court 
of Judicature for Rajasthan v. P.P. Singh & Anr. [2003] 1 SCR 
593 : (2003) 4 SCC 239 – relied on.
Sujata Kohli v. Registrar General, High Court of Delhi and Ors. 
[2020] 9 SCR 361 : (2020) 14 SCC 58; Dr. Kavita Kamboj v. High 
Court of Punjab and Haryana & Ors. [2024] 2 SCR 1136 : (2024) 
SCC OnLine SC 254; Rupa Rani Rakshit & Ors. v. Jharkhand 
Gramin Bank [2009] 15 SCR 1133 : (2010) 1 SCC 345; All 
India Judges’ Association (1) v. Union of India [1991] Suppl. 
2 SCR 206 : (1992) 1 SCC 119; All India Judges’ Association 
(2) v. Union of India [1993] Supp. 1 SCR 749 : (1993) 4 SCC 
288; High Court of Calcutta v. Amal Kumar Roy [1963] 1 SCR 
437; K.K. Parmar v. High Court of Gujarat [2006] Supp. 2 SCR 
565 : (2006) 5 SCC 789; Kartar Kaur v. State (1967) SLR 34; 
State of Mysore v. Syed Mahmood [1968] 3 SCR 363; Central 
Council for Research in Ayurveda and Siddha and Anr. v. Dr. 
K. Santhakumari [2001] 3 SCR 519 : (2001) 5 SCC 60; Union 
of India and Ors. v. Lt. Gen. Rajendra Singh Kadyan & Anr. 
[2000] Supp. 1 SCR 722 : (2000) 6 SCC 698; State of U.P. v. 
Jalal Uddin & Ors. [2004] Supp. 5 SCR 92 : (2005) 1 SCC 169; 
Haryana State Electronics Development Corporation Ltd. & Ors. 
v. Seema Sharma & Ors. [2009] 7 SCR 662 : (2009) 7 SCC 311; 
Palure Bhaskar Rao & Ors. v.
P. Ramaseshaiah & Ors. [2017] 3 
SCR 226 : (2017) 5 SCC 783; State of Mysore v. C. R. Seshadri 
& Ors. [1974] 3 SCR 87 : AIR 1974 SC 460; Ambica Quarry 
Works v. State of Gujarat [1987] 1 SCR 562 : (1987) 1 SCC 
213; Bharat Petroleum Corporation Ltd. v. NR Vairamani [2004] 
Supp. 4 SCR 923 : (2004) 8 SCC 579; Municipal Corporation 
Delhi v. Mohd Yasin [1983] 2 SCR 999 : (1983) 3 SCC 229; 
Thampanoor Ravi v. Charupara Ravi [1999] Supp. 2 SCR 419 : 
(1999) 8 SCC 74 – referred to.
R. v. Inland Revenue Commissioners, ex parte M.F.K Underwriting 
Agents Ltd. [1990] 1 WLR 1545 – referred to.
Books and Periodicals Cited
Shetty Commission on Judicial Reforms; First Law Commission 
of India (14th Report in the year 1958); Henry Campbell Black, 
Black’s Law Dictionary, p.1528 (6 th Edn., 1968); H. Gerth and 
C.W. Mills, From Max Weber: Essays in Sociology, 199, 202 
(Oxford University Press, New York, 1958); H. Eliot Kaplan, The
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Law of Civil Services (New York University Press, Mathew Bender 
& Company, New York, 1958); 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); Kaplan, 
N.I., A changing culture of merit: French competitive examinations 
and the politics of selection, pp. 1750-1820 (Columbia University 
Press, 1999); The Macaulay Committee’s Report on the Indian 
Civil Service 1854; History of the Commission, Union Public 
Service Commission; S. REP. No. 969; recited from O’Rourke, 
1993, p.344 – referred to.
List of Acts
Constitution of India; Gujarat State Judicial Service Rules, 2005.
List of Keywords
Merit; Seniority; Promotion; Promotion process; Article 32 of the 
Constitution; Article 226 of the Constitution; Efficacious alternative 
remedy; Rule of self-restraint; Interpretation of rules; Issue having 
far-reaching effect; Discretion of the Court; Legislative History and 
Scheme of the Gujarat State Judicial Service Rules, 2005; Rule 5(1) 
of the Gujarat State Judicial Service Rules, 2005; Rule 5(3) of the 
Gujarat State Judicial Service Rules, 2005; Modes of recruitment; 
Principle of Merit-cum-Seniority; Principle of
Seniority-cum-Merit; 
Article 235 of the Constitution; High Court as a custodian of the 
District Judiciary; Twin requirements stipulated in All India Judges’ 
Association (3); Suitability test; Basis of suitability test; Objective 
assessment of legal knowledge; Evaluation of the continued 
efficiency; Enhancing the minimum specified threshold of marks in 
suitability test; Interview or Viva Voce in suitability test; Evaluation 
of judgments delivered by the judicial officer in suitability test; 
Marks for seniority at the stage of suitability test; 65% promotion 
on the basis of ‘Merit-cum-Seniority’; 10% promotion strictly on 
the basis of merit; Statutory rules governing the promotion or any 
promotion policy.
Case Arising From
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 432 of 2023
(Under Article 32 of The Constitution of India)
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Appearances for Parties
R. Basant, P.S. Patwalia, Sr. Advs., Vivek Jain, Ms. Suchitra Kumbhat, 
Akshay Sahay, Kishan Chakawala, Rajat Jain, Sadiq Noor, Mehul 
Prasad, Purvish Jitendra Malkan, Advs. for the Petitioners.
V. Giri, Dushyant Dave, Shyam Divan, Sr. Advs., Ms. Vishakha, 
Ms. Vishwaja Rao, Shashank Shekhar Singh, Akshat Malpani, Ms. 
Ayushi Gaur, Sandeep Kumar Jha, Ms. Mayuri Raghuvanshi, Vyom 
Raghuvanshi, Ms. Akanksha Rathore, Puneet Jain, Ms. Deepanwita 
Priyanka, Jayesh Gaurav, Monarch K. Pandya, Ishwar Chandra 
Roy, Ms. Diksha Ojha, Ranjan Nikhil Dharnidhar, Ms. Nidhi Khanna, 
Sudipto Sircar, Rajeev Kumar Bansal, Madan Lal Daga, Parvinder, 
Shekher Kaushik, Ganesh Barowalia, Vidya Sagar, Rajesh Sonthalia, 
Kamal Mohan Gupta, Aditya Choksi, Arpit Gupta, Advs. for the 
Respondents.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided in the 
following parts: -
INDEX*
A.
FACTUAL MATRIX .................................................................
3
i.	 Method of Promotion followed by the High Court of 
Gujarat ............................................................................... 10
B.
REFERENCE ORDER .......................................................... 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.
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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
1.	
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
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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
2.	
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
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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
1.
Written Test (Objective Type - MCQs)
100
2.
Examination and Evaluation of Annual 
Confidential Reports for last five years
20
3.
Assessment of Average Disposal of 
last five years of the Judicial Officer 
concerned.
20
4.
Evaluation of Judgments delivered by 
the Judicial Officer concerned during the 
period of last one year.*
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.
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Ravikumar Dhansukhlal Maheta & Anr. v. 
High Court of Gujarat & Ors.
3.	
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
Marks
1.
Legal Knowledge [Detailed Syllabus 
attached herewith at Annexure-‘A’]
50
2.
Administrative Knowledge [GCS Rules 
2002, Civil Manual, Criminal Manual, etc.]
25
3.
General Knowledge & Aptitude Test [Test 
of Reasoning, Numerical & Mental Ability 
& Psychological Test, etc.]
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).
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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.
5.	
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).
Such Marks shall be communicated by providing a link to a 
webpage on the HC-OJAS Portal with individual password 
(OTP – One Time Password) via SMS on his/her
Registered 
Mobile Number, after the conclusion of the Selection Process
High Court of Gujarat,

Sola, Ahmedabad - 380 060.
Date: 12/04/2022
Sd/- 

Registrar 
(Recruitment and Finance)

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Ravikumar Dhansukhlal Maheta & Anr. v. 
High Court of Gujarat & Ors.
Syllabus For the LEGAL KNOWLEDGE of the Written Test 
(Objective Type - MCQs) : 
(a)	  ͢ 	 The Constitution of India 
	͢
The Code of Civil Procedure, 1908, 
	͢
The Transfer of Property Act, 1882,
	͢
The Specific Relief Act, 1963, 
	͢
The Indian Partnership Act, 1932, 
	͢
The Indian Contract Act, 1872, 
	͢
The Sale of Goods Act, 1930, 
	͢
The Limitation Act, 1963,
	͢
The Arbitration and Conciliation Act, 1996, 
	͢
The Motor Vehicles Act, 1988, 
	͢
The Commercial Courts Act, 2015 
	͢
The Family Courts Act, 1984, 
	͢
The Environment (Protection) Act, 1986, 
	͢
The Wild Life (Protection) Act, 1972,
	͢
The Indian Penal Code, 1860, 
	͢
The Code of Criminal Procedure, 1973, 
	͢
The Indian Evidence Act, 1872,
	͢
The Narcotic Drugs & Psychotropic Substances 
Act, 1985, 
	͢
The Negotiable Instruments Act, 1881, 
	͢
The Protection of Children from Sexual Offence 
Act, 2012, 
	͢
The Juvenile Justices (Care & Protection of 
Children) Act, 2015,
	͢
The Scheduled Castes and Scheduled Tribes 
(Prevention of Atrocities) Act, 1989,
	͢
The Prevention of Corruption Act, 1988
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	͢
The Electricity Act, 2003, 
	͢
The Protection of Women from Domestic 
Violence Act, 2005
	͢
The Immoral Traffic (Prevention) Act, 1956
	͢
The Information Technology Act, 2000 
	͢
The Indecent Representation of Women 
(Prohibition) Act, 1986 
(b)	 Legal Maxims 
(c)	
Medical Jurisprudence 
(d)	 Jurisprudence and Legal Phraseology”
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
Marks
1. 
Written Test (Objective Type – MCQs)
100
2. 
Examination and Evaluation of Annual Confidential 
Reports for last five
years.
20
3. 
Assessment of Average Disposal of last five years 
of the Judicial Officer concerned.
20
4. 
Evaluation of Judgments delivered by the Judicial 
Officer concerned during the period of last one 
year.
60
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6.	
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.
7.	
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. 
8.	
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. 
9.	
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.
10.	 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.
11.	 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.
12.	 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
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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 
the basis of seniority.
 68
B.	
REFERENCE ORDER
13.	 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’. 
14.	 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. 
15.	 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: -
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Ravikumar Dhansukhlal Maheta & Anr. v. 
High Court of Gujarat & Ors.
“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
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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)
16.	 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
17.	 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’.
18.	 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
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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’. 
19.	 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.
20.	 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.
21.	 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. 
22.	 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.
23.	 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’.
24.	 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’.
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D.	
SUBMISSIONS ON BEHALF OF THE HIGH COURT
25.	 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. 
26.	 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’. 
27.	 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. 
28.	 Finally, Mr. Giri submitted that the High Court has been following 
the same methodology since 2011.
E.	
SUBMISSIONS ON BEHALF OF THE PROMOTED 
CANDIDATES
29.	 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.
30.	 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. 
31.	 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
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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.
32.	 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. 
33.	 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).
34.	 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. 
35.	 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.
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F.	
POINTS FOR DETERMINATION
36.	 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.
37.	 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.
38.	 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
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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)
39.	 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)
40.	 From the aforesaid, it is clear that the availability of an alternative 
remedy does not in any manner affect the maintainability of the writ
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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.
41.	 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.
42.	 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.
43.	 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).
44.	 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).
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45.	 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)
46.	 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
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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)
47.	 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.
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48.	 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. 
49.	 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
63. We would now briefly indicate the directions we have 
given in the judgment:
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(i) An All India Judicial Service should be set up and 
the Union of India should take appropriate steps in this 
regard. [...]”
(Emphasis supplied)
50.	 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. 
51.	 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. 
52.	 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
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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. 
(3)	 Accordingly, this Court held that even within the quota of 
75% there should be two methods of appointment by way of 
promotion. It held that 50% of the total posts shall be filled by 
promotion based on the principle of ‘Merit-cum-Seniority’ through 
a test for assessing the continued efficiency and adequate 
knowledge of case-law of the Judicial Officers and the remaining 
25% of the posts shall be filled by promotion strictly on the basis 
of merit through a limited departmental competitive examination 
(LDCC) with an eligibility requirement of five-years of qualifying 
service as a Civil Judge (Senior Division). 
(4)	 Thus, this Court directed that recruitment to the Higher Judicial 
Service i.e., in the cadre of District & Sessions Judge shall be 
through three different avenues, namely: -
(i)	
50% by promotion of Civil Judges (Senior Division) on the 
basis of ‘Merit-cum-Seniority’ and passing a Suitability Test.
(ii)	 25% by promotion strictly based on merit through a limited 
departmental competitive examination of Civil Judges 
(Senior Division) not having less than five-years qualifying 
service; and 
(iii)	 25% by direct recruitment from amongst the eligible 
advocates based on written and viva
voce test. 
(5)	 Accordingly, all the High Courts were directed to frame 
appropriate rules in terms of the aforesaid directions. The 
relevant observations read as under: -
“27. Another question which falls for consideration is 
the method of recruitment to the posts in the cadre 
of Higher Judicial Service i.e. District Judges and 
Additional District Judges. At the present moment, 
there are two sources for recruitment to the Higher 
Judicial Service, namely, by promotion from amongst 
the members of the Subordinate Judicial Service and 
by direct recruitment. The subordinate judiciary is 
the foundation of the edifice of the judicial system.
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It is, therefore, imperative, like any other foundation, 
that it should become as strong as possible. The 
weight on the judicial system essentially rests on 
the subordinate judiciary. While we have accepted 
the recommendation of the Shetty Commission 
which will result in the increase in the pay scales 
of the subordinate judiciary, it is at the same time 
necessary that the judicial officers, hard-working 
as they are, become more efficient. It is imperative 
that they keep abreast of knowledge of law and 
the latest pronouncements, and it is for this reason 
that the Shetty Commission has recommended the 
establishment of a Judicial Academy, which is very 
necessary. At the same time, we are of the opinion 
that there has to be certain minimum standard, 
objectively adjudged, for officers who are to enter the 
Higher Judicial Service as Additional District Judges 
and District Judges. While we agree with the Shetty 
Commission that the recruitment to the Higher Judicial 
Service i.e. the District Judge cadre from amongst 
the advocates should be 25 per cent and the process 
of recruitment is to be by a competitive examination, 
both written and viva voce, we are of the opinion 
that there should be an objective method of testing 
the suitability of the subordinate judicial officers for 
promotion to the Higher Judicial Service. Furthermore, 
there should also be an incentive amongst the 
relatively junior and other
officers to improve and 
to compete with each other so as to excel and get 
quicker promotion. In this way, we expect that the 
calibre of the members of the Higher Judicial Service 
will further improve. In order to achieve this, while 
the ratio of 75 per cent appointment by promotion 
and 25 per cent by direct recruitment to the Higher 
Judicial Service is maintained, we are, however, of 
the opinion that there should be two methods as far 
as appointment by promotion is concerned : 50 per 
cent of the total posts in the Higher Judicial Service 
must be filled by promotion on the basis of principle
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of merit-cum-seniority. For this purpose, the High 
Courts should devise and evolve a test in order to 
ascertain and examine the legal knowledge of those 
candidates and to assess their continued efficiency 
with adequate knowledge of case-law. The remaining 
25 per cent of the posts in the service shall be filled 
by promotion strictly on the basis of merit through 
the limited departmental competitive examination for 
which the qualifying service as a Civil Judge (Senior 
Division) should be not less than five years. The High 
Courts will have to frame a rule in this regard.
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
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merit by limited departmental competitive examination 
and 25 per cent by direct recruitment. [...]”
(Emphasis supplied)
53.	 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)
54.	 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
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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)
55.	 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
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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.
56.	 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.
57.	 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. 
58.	 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: -
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“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, 
and 
(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.”
59.	 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’. 
60.	 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. 
61.	 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.
62.	 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%.
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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. 
64.	 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.”
65.	 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’.
66.	 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.
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67.	 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.
68.	 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
69.	 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	
High Court of Calcutta v. Amal Kumar Roy [1963] 1 SCR 437
2	
Henry Campbell Black, Black’s Law Dictionary, p. 1528 (6th Edn., 1968).
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70.	 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’
71.	 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. 
72.	 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
73.	 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	
H. Gerth and C.W. Mills, From Max Weber: Essays in Sociology, 199, 202 (Oxford University Press, New 
York, 1958).
4	
K.K. Parmar v. High Court of Gujarat (2006) 5 SCC 789
5	
Kartar Kaur v. State (1967) SLR 34
6	
H. Eliot Kaplan, The Law of Civil Services (New York University Press, Mathew Bender & Company, 
New York, 1958).
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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 
74.	 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 
75.	 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 
76.	 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. 
77.	 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	
Id.
8	
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).
9	
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).
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to higher positions, seniority and experience were considered as 
important factors. 
78.	 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
79.	 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.
80.	 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.
81.	 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.
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High Court of Gujarat & Ors.
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.
82.	 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) 
83.	 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
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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. 
84.	 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)
85.	 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
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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)
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86.	 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]
87.	 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
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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
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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)
88.	 This distinction was reiterated in Union of India and Ors. v. Lt. 
Gen. Rajendra Singh Kadyan & Anr. reported in (2000) 6 SCC 
698, State of U.P. v. Jalal Uddin & Ors. reported in (2005) 1 SCC 
169 and Haryana State Electronics Development Corporation 
Ltd. & Ors. v. Seema Sharma & Ors. reported in (2009) 7 SCC 311.
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89.	 This Court in Palure Bhaskar Rao & Ors. v. P. Ramaseshaiah & 
Ors. reported in (2017) 5 SCC 783 reiterated the distinction between 
the principles of ‘Seniority-cum-merit’ and ‘Merit-cum-Seniority’. As far 
as promotion by ‘seniority-cum-merit’ or seniority per se, the eligible 
senior cannot be superseded. Other things being equal, the senior 
automatically get promoted. But in the case of selection based on 
‘Merit-cum-Seniority’, the senior candidate can be superseded if the 
candidate who is senior is not otherwise eligible to be considered 
according to the applicable service rules.
90.	 This Court in its decision in K. Samantaray v. National Insurance 
Co. Ltd. reported in (2004) 9 SCC 286 reaffirmed that when it comes 
to promotion, apart from the two guiding principles that have come to 
be accepted namely; ‘Seniority-cum-Merit’ and ‘Merit-cum-Seniority’, 
a third model has also now come to be recognized as a mode of 
promotion known as the ‘Hybrid Mode of Promotion’. This Court 
while explaining the ‘Hybrid Mode of Promotion’ observed that the 
requirement is that seniority is to be duly respected and merit is to be 
appropriately recognized. The relevant observations read as under: -
“10. [...] The third mode (apart from seniority-cum-merit and 
merit-cum-seniority modes) has been recognized. It has 
been described as a “hybrid mode of promotion”. In other 
words, there
is a third category of cases where seniority 
is duly respected and merit is appropriately recognized.
11. While laying down the promotion policy or rule, it is 
always open to the employer to specify area and parameter 
of weightage to be given in respect of merit and seniority 
separately so long as policy is not colourable exercise of 
power, nor has the effect of violating of any statutory scope 
of interference and other relatable matters. The decision in 
B. V. Sivaiah case (supra) is clearly distinguishable on facts 
and in law. That was a case where statutory rules governed 
the field. This Court, inter alia, held that fixing terms which 
are at variance with the statutory rules is impermissible. 
In the case at hand, prior to the formulation of policy in 
February, 1990, there were no codified prescriptions. It 
was the stand of the respondent-employer that prior to 
the formulation of the policy, certain guidelines existed 
and the objectives of the policy were to rationalize and
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codify the existing guidelines relating to promotions within 
officers cadre. There is no statutory rule operating. It is 
for the employer to stipulate the criteria for promotion, 
the same pertaining really to the area of policy making. 
It was, therefore, permissible for the respondent to have 
their own criteria for adjudging claims on the principle 
of seniority-cum-merit giving primacy to merit as well, 
depending upon the class, category and nature of posts 
in the hierarchy of administration and the requirements of 
efficiency for such posts.”
(Emphasis supplied)
91.	 In Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya 
Gramin Bank & Ors. reported in (2006) 12 SCC 574, this Court 
observed that although the requirement of minimum marks for 
assessing merit can be prescribed for the purpose of promotion on 
the basis of ‘Seniority-cum-Merit’, yet where a very high requirement 
of minimum marks has been prescribed, the same would amount 
to laying greater emphasis on merit and thereby departing from the 
principle of ‘Seniority-cum-Merit’ and shifting towards to the principle 
of ‘Merit-cum-Seniority’ where merit and ability play a predominant 
role. The relevant observations read as under: -
“11. 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 when 
merit and ability are approximately equal.
xxx
xxx xxx
20. There is no basis, in the instant case, for the stand 
that for assessing merit a minimum number of marks has 
been prescribed. The contention that minimum marks were 
45 out of 60, means that an employee is to secure 75% of 
marks. Such a high percentage cannot be a measure for 
prescribing minimum marks to assess merit. It obviously 
would be a case of shifting the focus to merit-cum-seniority 
principle. In para 37 of Sivaiah case this Court noted 
that minimum marks prescribed for assessing merit do 
not depart from the seniority-cum-merit principle. But the 
factual position is different here. There is no mention that
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45 marks out of 60 relate to the prescription of minimum 
marks for assessing the merit. In Jalal Uddin case it 
was noted that in seniority-cum-merit greater emphasis 
is on seniority though it is not the determinative factor. 
In the case of merit-cum-seniority, merit becomes a 
determinative factor. In fact, the position noted by this 
Court in paras 19, 20, 24 and 25 of Sivaiah case dealt 
with almost identical fact situation, apart from para 16 
of the judgment.”
(Emphasis supplied)
92.	 In Shriram Tomar & Anr. v. Praveen Kumar Jaggi & Ors. reported 
in (2019) 5 SCC 736, for the purpose of promotion on the basis of 
‘Seniority-cum-Merit’ it was stipulated that the assessment would be 
on the basis of a written test, interview and performance appraisal for 
a grand total of 100 marks out of which requirement of a minimum 
aggregate of 40% marks was prescribed. In addition to the above, a 
further requirement of minimum 12 marks in one of the components 
i.e., the interview had also been prescribed.
93.1	This Court held that the principle of ‘Seniority-cum-Merit’ 
postulates only one requirement i.e., once the minimum required 
merit is assessed, thereafter the promotion must be strictly 
in accordance with the seniority of the candidates having the 
requisite merit. How the minimum merit ought to be assessed 
is immaterial.
93.2	As such, prescribing of an additional requirement of
minimum 
marks in any one component of assessment such as interview in 
addition to the requirement of aggregate minimum marks in the 
overall assessment process was permissible under the principle 
of ‘Seniority-cum-Merit’ provided that the ultimate promotion is 
taking place as per seniority. The relevant observations read 
as under: -
“13. [...] As the promotion to the post of Junior 
Management Scale II shall be made on the basis 
of seniority-cum-merit, the only requirement would 
be that after it is found that the candidates have 
possessed the minimum necessary merit, namely, 
minimum 40% qualifying marks in the written test
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and minimum 12 marks each out of 20 marks each 
in interview and the performance appraisal reports 
respectively, thereafter the candidates are required 
to be promoted in the order of seniority, irrespective 
of anyone among them having obtained more marks.”
(Emphasis supplied)
93.	 In Sujata Kohli v. Registrar General, High Court of Delhi and 
Ors. reported in (2020) 14 SCC 58, this Court observed that 
since both the channels of promotion to the cadre of District & 
Sessions Judge being (i) 65% promotion on basis of principle 
of ‘Merit-cum-Seniority’ and (ii) 10% promotion strictly on merit 
through competitive examination postulate the criterion of merit, 
it necessarily meant that: - 
(i)	
First, for the purposes of any promotion through the above two 
channels, merit would have to play a major role in promotion 
through these channels and will acquire primacy and that 
seniority alone cannot be given primacy. 
(ii)	 Secondly, the requirement of merit in such promotions cannot 
be less than the merit which is required at the entry level i.e., 
in the lower cadres. 
(iii)	 Thirdly, that comparative assessment of merit is crucial, such as 
through the evaluation of the respective ACRs of the candidates.
Thus, this Court was of the view that the minimum requirement of 
grade ‘A’ in ACRs was in consonance with the policy envisaged by 
the abovementioned two channels of promotion and the relevant 
observations read as
under: -
“14.3 [...] As noticed, two channels of recruitment to the 
posts in the cadre of District Judge have been provided: 
one by promotion from amongst the Civil Judges (Senior 
Division) and another by direct recruitment from the 
eligible persons. As regards promotion, the bifurcation is 
provided in the manner that 65% are to be recruited by 
way of promotion on the basis of merit-cum-seniority and 
10% by promotion strictly on the basis of merit through 
limited competitive examination (vide Rule 7 and 7A). [...]
xxx xxx xxx
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15. 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 or on merit 
basis. Further, grant of Selection Grade and Super Time 
Scale is also on assessment of merit-cum-seniority10. 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 primacy.
xxx xxx xxx
19.1. [...] 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 cadre.”
(Emphasis supplied)
c.	
‘Hybrid-Dynamic Mode of Promotion’ in Service 
Jurisprudence. 
94.	 What can be discerned from the aforenoted decisions is that this 
Court over the years has consistently held that where promotion 
is on the basis of the principle of ‘Merit-cum-Seniority’ a greater
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emphasis is placed on merit, whereas, when the promotion is on the 
basis of the principle of ‘Seniority-cum-Merit’, a greater emphasis is 
laid on seniority. 
95.	 One must be mindful that the terms ‘Merit-cum-Seniority’ or ‘Seniority-
cum-Merit’ are not statutorily defined by the legislature. 
96.	 These principles are judicial connotations that have been evolved 
over a period of years through various decisions of this Court and 
the High Courts whilst dealing with matters of promotion pertaining 
to different statutes and service conditions.
97.	 This Court in B.V. Sivaiah (supra), Rajendra Kumar Srivastava 
(supra), Shriram Tomar (supra), Sujata Kohli (supra) and a catena 
of other decisions has held that the principles of ‘Merit-cum-Seniority’ 
and ‘Seniority-cum-Merit’ are conceptually different. Whilst explaining 
the difference between these two principles, this Court has only gone 
to the extent of laying down what these principles postulate for the 
purpose of promotion. In other words, this Court has only gone so 
far as to lay down what is permissible within the four corners of 
these principles and by no stretch of imagination has this Court in 
any manner held that such postulations are stricto-sensu required 
to be complied with. 
98.	 The various decisions of this Court have only developed upon 
the principles of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ by 
explaining the criterions that may be
postulated within the framework 
of these principles for the purpose of promotion. The scope of the 
aforesaid principles is summarized below: -
I)	
The principle of ‘Seniority-cum-Merit’ postulates that: -
i.	
Minimum requirement of merit and suitability which is 
necessary for the higher post can be prescribed for the 
purpose of promotion. 
ii.	
Comparative Assessment amongst the candidates is not 
required.
iii.	
Seniority of a candidate is not a determinative factor for 
promotion but has a predominant role.
iv.	
Upon fulfilling the minimum qualifications, promotions must 
be based on inter-se seniority.
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II)	
The principle of ‘Merit-cum-Seniority’ postulates that: -
i.	
Merit plays a predominant role in and seniority alone 
cannot be given primacy.
ii.	
Comparative Assessment of Merit is a crucial, though not 
a mandatory, factor. 
iii.	
Only where merit is equal in all respects can inter-se 
seniority be considered. Meaning that a junior candidate 
can be promoted over the senior if the junior is more 
meritorious.
99.	 The underlying reason why the afore-stated postulations ought not 
be understood as mandatory stems from the very fact that they 
are not a result of a legislative creation, but rather one of judicial 
interpretation whilst dealing with different promotion policies, different 
service conditions, the varied nature and requirement of posts and 
more importantly different sets of rules. Since, these postulations 
have been laid down in different context and varied facts, it would 
be preposterous to say that such postulations will apply uniformly to 
all services and matters of promotion including the judicial services. 
100.	The principles of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ 
should by no means be regarded as rigid or inflexible in nature, 
otherwise, these judicial connotations would effectively assume the 
character of statutory stipulation laid down through various judicial 
pronouncements and would become applicable to all types of services, 
posts
and promotions. This would lead to the transgression by the 
judiciary into the realms of policy making.
101.	This Court in Lt. Gen. Rajendra Singh Kadyan (supra) whilst 
explaining the intricacies between the principles of ‘Merit-cum-
Seniority’ and ‘Seniority-cum-Merit’ made a pertinent observation 
that selection for promotion is based on different criteria depending 
upon the nature of the post and requirements of service, and that 
such criteria could be said to fall into three categories which include 
‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’. 
102.	In Palure Bhaskar Rao (supra) and Kavita Kamboj (supra) this 
Court equated the principle of ‘Merit-cum-Seniority’ and ‘Seniority-
cum-Merit’ as modes or methods of promotion. However, modes of 
promotion should not be conflated with modalities of promotion. The
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expressions ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ in service 
jurisprudence are nothing but principles which are used to broadly 
categorize policies pertaining to promotions. They only lay down the 
broad framework within which specific policies of promotion can be 
elaborately laid down. 
103.	In Bhagwandas Tiwari (supra) this Court held that where for the 
purpose of promotion a high threshold of minimum required marks 
has been prescribed, the same would be an instance of ‘Merit-
cum-Seniority’, even in the absence of a comparative assessment 
of merit, thus clearly indicating that these postulations are not 
mandatory. As even without an element of comparative merit, the 
promotion could be based on ‘Merit-cum-Seniority’, provided that 
merit is given prominence over seniority in the promotion process. 
Therefore, the only factor that sets apart ‘Merit-cum-Seniority’ from 
‘Seniority-cum-Merit’ is whether emphasis is laid on merit or seniority. 
All other ancillary factors or postulations such as comparative merit 
or a minimum specified benchmark may or may not be material to 
these principles.
104.	The fluid nature of the principles of ‘Merit-cum-Seniority’ and 
‘Seniority-cum-Merit’ is further evinced by the decision of this Court 
in K. Samantaray (supra) wherein although the policy stipulated that 
promotion would be on the basis of ‘Seniority-cum-Merit’, yet this 
Court after going through the elaborate
promotion policy held that a 
third mode of promotion known as the “Hybrid Mode of Promotion” 
has come to be recognized by this Court, wherein it is open for the 
employer to specify the area and parameter of weight required to 
be given to merit and seniority for the purpose of promotion. It was 
further held that it is always open for the employer or the selection 
body to decide and stipulate their own criteria for adjudging the claims 
on the principles of ‘Seniority-cum-Merit’ or ‘Merit-cum-Seniority’ 
depending upon the class, category and nature of post and the 
requirements of efficiency.
105.	What can be discerned from the aforesaid is that, wherever the 
expression ‘Merit-cum-Seniority’ or ‘Seniority-cum-Merit’ has been 
supplemented by an elaborate promotion policy or statutory rules 
clearly indicating the parameters on which promotions are to be 
made, the mode of promotion assumes the character of a Hybrid 
or Dynamic Mode of Promotion as held in K. Samantaray (supra).
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106.	In such scenario, these principles serve as a beacon for the selection 
body which, in exercise of its delegated legislative powers, can 
formulate policies and lay down different criteria and conditions of 
assessment for the purposes of promotion. It does so by providing 
the selection body with the tools for formulating the promotion policy 
in the form of the aforementioned postulations or criteria which are 
permissible under these principles. Thereafter, the selection body 
can, as a conscious choice, decide the criteria it deems necessary 
or most suitable for the purpose of promotion keeping in mind the 
nature of the post, the requirements of service, etc. 
107.	For instance, where the promotion is based on ‘Merit-cum-Seniority’, 
the selection body may opt for a comparative assessment of merit, 
more particularly, in cases where the promotions are competitive 
in nature or it may say that seniority should only be considered 
where merit is equal in all respect if the post is of such nature that 
it requires significant knowledge and ability. 
108.	However, at the same time, this flexibility should not be understood 
as a complete autonomy. While the statutory rules or, in the 
absence of the same, the promotion policy formulated must be 
followed, they must at the same time have some nexus or bearing 
with the nature of the post and the requirements of service. For
instance, where the promotion is based on ‘Merit-cum-Seniority’ 
and the nature of promotion allows for superseding a senior, the 
selection body whilst formulating the promotion policy cannot 
simpliciter as a matter of choice refuse to provide for assessment 
of comparative merit, as the promotion herein is by its nature 
an accelerated form of promotion and as such comparative 
assessment becomes crucial.
109.	The principle of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ are 
a flexible and a fluid concept akin to broad principles within which 
the actual promotion policy may be formulated. They are not strict 
rules or requirements and by no means can supplant or take the 
place of statutory rules or policies that have been formulated, 
if any. These principles are dynamic in nature very much like a 
spectrum and their application and ambit depends upon the rules, 
the policy, the nature of the post and the requirements of service. 
The sketch below illustrates the broad spectrum in which these 
principles operate: -
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110.	Thus, the principles applicable to promotion such as the principle 
of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ can best be 
described as two ends of a spectrum. They are broad categories or 
frameworks for promotion and do represent the actual modalities by 
which promotions are to take place. It is the rules and the promotion 
policy, along with the intention of the legislature or the selection 
board, as the case may be, that supplements these principles and 
delineates the actual modality of how promotion is to take place. 
Through these rules and promotion policy, the legislature or the 
selection body specifies the area and the parameters or the weightage 
which is to be given to the aspect of “Merit” and “Seniority” on the 
said spectrum.
111.	 No doubt while construing the rule of ‘Seniority-cum-Merit’ or ‘Merit-
cum-Seniority’, some of the observations of the decided cases are 
not uniform. In State of Mysore v. C. R. Seshadri & Ors. reported 
in AIR 1974 SC 460, Krishna Iyer, J., held that if the criterion for 
promotion is one of ‘Seniority-cum-Merit’, comparative merit may 
have to be assessed, if length of service is equal or an outstanding 
junior is available for promotion. 
112.	The decision of this Court in Sujata Kohli (supra) has been strongly 
relied upon on behalf of the petitioner herein, however the same is 
of no avail to them, as in the said case this Court had no occasion 
to examine
the meaning of the expression ‘Merit-cum-Seniority’ 
in reference to All India Judges’ Association (3) (supra). This 
Court in Sujata Kohli (supra) only went so far as to say that 
‘Merit-cum-Seniority’ means that neither merit can be forsaken 
nor seniority alone can be given primacy. ‘Merit-cum-Seniority’ 
only stipulates that a balance must be maintained between ‘Merit’ 
and ‘Seniority’ with ‘Merit’ playing a more predominant role in the 
selection process.
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113.	Similarly, the decision in Dr. Kavita Kamboj (supra) has also been 
strongly relied upon by the petitioners, but it is of no avail to them, as 
the limited question that was involved in the said case was whether 
minimum marks could be specified for the written exam and the viva 
voce separately. 
114.	While laying down the promotion policy or rule, it is always open to 
the employer to specify the area and parameter or the weightage 
to be given in respect of merit and seniority separately, so long as 
the policy is not a colourable exercise of power, nor has the effect 
of violating any statutory scope of interference and other relatable 
matters. [See K. Samantaray (supra)]
d.	
High Court as a custodian of the District Judiciary 
under Article 235 of the Constitution.
115.	We should be mindful of the fact that the High Court by virtue of its 
power under Article 235 of the Constitution undertook the recruitment 
process for the purpose of promotion. The High Court followed the 
procedure which it had been following without any departure since 
2011. In such circumstances, had the High Court departed from 
the method of promotion which it had been following since 2011, it 
could have been argued on behalf of the respondents that they had 
legitimate expectation that the High Court would not deviate from the 
method or process they had been adopting since 2011. 
116.	In the
aforesaid context we may make a reference to R. v. Inland 
Revenue Commissioners, ex parte M.F.K Underwriting Agents 
Ltd. reported in [1990] 1 W.L.R. 1545 where Lord Justice of Appeal, 
Thomas Bingham, while invoking fairness as a rationale for protecting 
legitimate expectations, expressed the following: -
“If a public authority so conducts itself as to create a 
legitimate expectation that a certain course will be followed 
it would often be unfair if the authority were permitted 
to follow a different course to the detriment of one who 
entertained the expectation, particularly if he acted on 
it [...] The doctrine of legitimate expectation is rooted in 
fairness.”
117.	In Madan Mohan Choudhary v. State of Bihar reported in (1999) 3 
SCC 396 this Court held that the High Court’s control over the District 
Judiciary under Article 235 of the Constitution is comprehensive and
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extends to a variety of matters including promotion. The relevant 
observations read as under: -
“22. In order to ensure their independence, the control 
over the subordinate courts has been vested in the High 
Court under Article 235 [...]
23. Under this Article, the High Court’s control over the 
subordinate judiciary is comprehensive and extends 
over a variety of matters, including posting, promotion 
and grant of leave. The three words, namely, “posting”, 
“promotion” and “grant of leave” used in this article are 
only illustrative in character and do not limit the extent of 
control exercised by the High Court over the officers of 
the subordinate judiciary.
xxx xxx xxx
26. From the scheme of the Constitution, as set out above, 
it will be seen that though the officers of the subordinate 
judiciary are basically and essentially government servants, 
their whole service is placed under the control of the High 
Court and the Governor cannot make any appointment or 
take any disciplinary action including action for removal or 
compulsory retirement unless the High Court is “consulted” 
as required by the constitutional impact of both the Articles 
233 and 234 and the “control” of the High Court indicated 
in Article 235.”
(Emphasis supplied)
118.	In High Court of Judicature for Rajasthan v. P.P. Singh & Anr. 
reported in (2003) 4 SCC 239, it was held that laying down merit 
criteria for appointment to selection grade was
well within the domain 
of the High Court under Article 235 of the Constitution. The relevant 
observations read as under: -
“18. It is beyond any pale of controversy that the control 
over the subordinate courts within the meaning of Article 235 
of the Constitution of India is that of the High Court. Such 
control of the High Court includes general superintendence 
of the working of the subordinate courts, disciplinary 
control over the presiding officers, disciplinary proceedings,
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transfer, confirmation and promotion and appointment etc. 
Such control vested in the High Court is complete. [...]
xxx xxx xxx
24. The submission on behalf of the respondents to the 
effect that in the matter relating to fixation of criteria for the 
purpose of appointment to the selection grade, the two-
Judge Committee could not be made without consulting all 
the Judges is stated to be rejected. The said submission 
is based on a total misconception. Laying down the merit 
criteria for appointment to the selection grade also was 
within the domain of the High Court. It could not only lay 
down such criteria but also amend or modify the same 
from time to time. [...]”
(Emphasis supplied) 
119.	From the aforesaid discussion, it is clear that when it comes to 
promotion of judicial officers of the District Judiciary, the control vests 
with the High Court under Article 235 of the Constitution. The High 
Court being the sole authority in this regard can clearly lay down 
rules and policies pertaining to promotions which includes the power 
to specify the criteria and parameters it deems most suitable and 
appropriate for the purpose of promotion and the manner in which 
promotion is to be made as long as it is within the contours of what 
has been laid down in All India Judges’ Association (3) (supra). 
Thus, now the only question that remains to be considered is, what is 
the meaning
assigned to “Merit-cum-Seniority” by All India Judges’ 
Association (3) (supra).
iv.	
What is ‘Merit-cum-Seniority’ for the purpose of Promotion 
to the cadre of District & Sessions Judges?
a.	
Intention behind the decision in All India Judges’ 
Association (3).
120.	The entire controversy revolves around the interpretation of Rule 
5(1) of the 2005 Rules which provides that 65% of the total posts in 
the cadre of District & Sessions Judge shall be filled by promotion 
on the basis of the principle of ‘Merit-cum-Seniority’.
121.	As discussed in the foregoing parts of this judgment, the decision 
of this Court in All India Judges’ Association (3) (supra) has laid
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down the method of recruitment to the posts in the Higher Judicial 
Service, i.e., District Judges and Additional District Judges. Prior to 
the said decision, there were only two sources for recruitment to 
the Higher Judicial Service – first, by promotion from amongst the 
members of the District Judicial Service; and secondly, by direct 
recruitment from among the members of the Bar. 
122.	This Court in All India Judges’ Association (3) (supra), with a view 
to enhance the efficiency of the District judiciary and to create an 
avenue of accelerated promotions for the relatively junior members 
of the service, introduced two methods of appointment, one by way 
of promotion, wherein 50% of the total posts were to be filled by 
promotion on the basis of the principle of ‘Merit-cum-Seniority’ through 
a test assessing the continued efficiency and adequate knowledge 
of case-law of the judicial officers, and the remaining 25% of the 
posts were to be filled up by promotions strictly on the basis of merit 
through the limited departmental competitive examination. At the cost 
of repetition, the relevant observations read as under: -
“27. At the same time, we are of the opinion that there has 
to be certain minimum standard, objectively adjudged, for 
officers who are to enter the Higher Judicial Service as 
Additional District Judges and District Judges. While we 
agree with the Shetty Commission that the recruitment to 
the
Higher Judicial Service i.e. the District Judge cadre 
from amongst the advocates should be 25 per cent and 
the process of recruitment is to be by a competitive 
examination, both written and viva voce, we are of the 
opinion that there should be an objective method of 
testing the suitability of the subordinate judicial officers 
for promotion to the Higher Judicial Service. Furthermore, 
there should also be an incentive amongst the relatively 
junior and other officers to improve and to compete with 
each other so as to excel and get quicker promotion. In 
this way, we expect that the calibre of the members of 
the Higher Judicial Service will further improve. In order 
to achieve this, while the ratio of 75 per cent appointment 
by promotion and 25 per cent by direct recruitment to the 
Higher Judicial Service is maintained, we are, however, 
of the opinion that there should be two methods as far 
as appointment by promotion is concerned : 50 per cent
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of the total posts in the Higher Judicial Service must be 
filled by promotion on the basis of principle of merit-cum-
seniority. For this purpose, the High Courts should devise 
and evolve a test in order to ascertain and examine the 
legal knowledge of those candidates and to assess their 
continued efficiency with adequate knowledge of case-law. 
The remaining 25 per cent of the posts in the service shall 
be filled by promotion strictly on the basis of merit through 
the limited departmental competitive examination for which 
the qualifying service as a Civil Judge (Senior Division) 
should be not less than five years. The High Courts will 
have to frame a rule in this regard.”
(Emphasis supplied)
123.	The expressions “certain minimum standard, objectively adjudged” 
and “in order to ascertain the legal knowledge of those candidates 
and to assess their continued efficiency with adequate knowledge 
of case law” in All India Judges’ Association (3) (supra) clearly 
indicate that the intention was to test each candidate on their own 
merit as this Court never mandated that a comparative assessment 
of merit was also required. In other words, what is stipulated is 
the determination of suitability of the candidates and assessment 
of their efficiency based on whether they possess adequate 
knowledge of case law. It goes without saying that some standards 
of suitability and
efficiency for continued service is required. The 
High Court may deny promotion to a Civil Judge (Senior Division) 
only in case the candidate is not suitable for being promoted to 
the post of District & Sessions Judge. It was never the intention 
of this Court that after taking the suitability test, a list should be 
prepared based on inter-se merit and the judicial officers should 
be promoted only if they fall in the said merit list. It cannot be 
said to be a competitive exam. Only the suitability of the judicial 
officer is to be assessed and once it is found that the candidate 
has secured the requisite marks in the suitability test, they cannot 
be thereafter ignored for promotion. 
124.	The first change brought around was the introduction of a mandatory 
assessment of the suitability of the members of the District Judicial 
Service before promoting them to the Higher Judicial Service. The 
concept of assessment of suitability was introduced to ensure that a
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certain minimum standard is maintained in the Higher Judicial Service. 
The method of devising a suitability test for this purpose was left to 
the respective High Courts. However, broad guiding principles were 
laid down by this Court on the contours of the suitability test. It was 
directed that the suitability test must objectively test the following: - 
a.	
Whether the candidate possesses legal knowledge?
b.	
Whether the candidate has displayed continued efficiency during 
his tenure in the feeder cadre?
c.	
Whether the candidate possesses adequate knowledge of 
case law?
125.	The second change introduced by the aforesaid decision was the 
creation of a third category of recruitment to the Higher Judicial 
Service. While the allocation of seats for direct recruitment from 
the members of the Bar was kept at 25% of the total posts in the 
Higher Judicial Service, the erstwhile promotional category was 
split up into two categories – firstly, 50% of the posts in the Higher 
Judicial Service were directed to be filled by promotion on the basis 
of ‘Merit-cum-Seniority’; and secondly, the remaining 25% of the 
seats were directed to be filled by promotion strictly on the basis 
of merit, through a limited departmental competitive examination. 
126.	We are of the view that the principle of ‘Merit-cum-Seniority’ stipulated 
in Rule 5(1) of the 2005 Rules should be understood in accordance 
with what has been observed by this
Court in paragraphs 27 & 28 
respectively of All India Judges’ Association (3) (supra).
127.	It is amply clear from the aforesaid decision that this Court intended 
to achieve two-fold objectives – 
(i)	
First, to ensure that unlike the traditional promotion policy 
under which seniority alone was considered for promotion, a 
new policy should be devised under which seniority would be 
considered for promotion, but only for those candidates who 
possessed the minimum necessary standard of suitability for 
the post, and;
(ii)	 Secondly, to prevent loss of motivation amongst the relatively 
junior members of the service, a third category for promotion 
to the Higher Judicial Service should be created, wherein 
promotions would be given strictly on the basis merit, to
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be ascertained through a limited departmental competitive 
examination. 
128.	Thus, while the comparison of inter-se merit to determine the most 
meritorious candidates was the procedure to be adopted for filling up 
the seats under the newly created category, it was never the intention 
of this Court in the aforesaid decision to mandate the comparative 
assessment of merit in the category of regular promotions based 
on seniority. The only additional requirement which was provided for 
by the aforesaid decision for this category of candidates was the 
possession of certain minimum objectively determinable standard 
of suitability. As long as a candidate possesses this standard of 
suitability, it cannot be said that this Court intended, by the aforesaid 
decision, to subject such a candidate to a mandatory comparative 
merit assessment akin to the limited departmental competitive 
examination and disregard the seniority of such a candidate to prefer 
those candidates who may have scored a few marks more than him 
in the suitability test. 
129.	The objective sought to be achieved by the introduction of a suitability 
test in the regular promotional category was limited to the assessment 
of a minimum standard of suitability. It would be incorrect to say that 
the marks scored by a candidate in the suitability test are proportional 
to the merit of the candidate. This can be understood
with the aid of 
an illustration – take a case wherein the minimum marks required 
to be obtained in the suitability test is ‘x’; then for the purpose of 
65% promotional quota, as soon as a candidate obtains ‘x’ marks 
in the suitability test, such a candidate becomes eligible for being 
considered for promotion in that category subject to their seniority 
vis-à-vis the other suitable candidates. It cannot be said that a 
candidate who obtains (x + 10) marks is more meritorious or more 
suitable than those candidates who obtain ‘x’ or (x + 5) marks in 
the suitability test. Every candidate who scores higher than or equal 
to ‘x’ marks in the suitability test is considered equally suitable and 
equally meritorious for the purpose of 65% promotional category. 
130.	We have discussed in detail in the foregoing paragraphs that the 
concepts of ‘Merit-cum-Seniority’ or ‘Seniority-cum-Merit’ are flexible 
in nature and do not prescribe any fixed or strait-jacket definitions. 
These definitions take character and substance from the context in 
which they are employed. Their full import and nuances only become
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visible when they are exposed to the guiding light of the overall 
promotional policy of the organisation. The concept of promotions in 
the District Judiciary is a peculiar one, and one that must be analysed 
in its own unique context. Unlike most cases on promotions decided 
by this Court where the interpretation or incorrect implementation of 
the promotion policy contained in a statute have been in question, 
the present case of promotions to the Higher Judicial Service is 
one in which the statutory framework itself was created after the 
decision in All India Judges’ Association (3) (supra). Thus, any 
dispute arising out of the respective rules of promotions of different 
States/Union Territories as devised by their respective High Courts 
must be construed in the context of various decisions which have 
ultimately shaped such rules. 
131.	How ‘Merit-cum-Seniority’ will apply to promotions within an 
organization will ultimately depend on the statutory rules, if any, or 
the promotional policy of such an organisation. We have discussed in 
detail in the preceding paragraphs that the objective of this Court in All 
India Judges’ Association (3) (supra) was to create a new category 
for accelerated promotions and to introduce a test to ascertain the 
suitability of candidates in the regular promotional category. While 
the newly created category was strictly based on merit, the due 
weightage on seniority in the
regular promotional category was not 
diluted in any manner except for the introduction of the suitability test. 
We are aware that in a number of decisions of this Court, the term 
‘merit’ has been infused with a competitive and comparative character, 
however, we are of the opinion that whether the term ‘merit’ includes 
a comparative element can only be ascertained from the context in 
which it is employed and not in isolation from it. Merit only indicates 
an assessment of qualities which are relevant for the post. It is not 
synonymous to scores in the competitive examination. Competitive 
examinations are merely one of the many ways in which the merit 
of the candidate is determined. This Court in All India Judges’ 
Association (3) (supra) notes that merit must be determined based 
on a limited competitive examination with respect to the 25% (now 
10%) of the seats which are to be filled by merit. Thus, this Court 
clarifies that merit in the context of the 25% (now 10%) of the seats 
must be determined through the competitive examination while for 
the 50% (now 65%) of the seats must be determined based on an 
assessment of specific suitability parameters. Whether the idea of
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a ‘minimum threshold merit’ would be antithetical to the concept of 
‘Merit-cum-Seniority’ would again depend on the context and the 
manner in which the minimum threshold is applied. 
132.	The term ‘Merit-cum-Seniority’ in context of 2005 Rules implies that 
both merit and seniority would be considered in the promotion of a 
candidate, with merit being determined on the basis of a suitability test. 
The exact modalities of how merit and seniority are to be apportioned 
is a legislative function and is to be performed keeping in mind the 
unique requirements and circumstances of the organization. In the 
present case, the merit of a candidate is assessed by means of a 
suitability test, as prescribed under paragraph 27 of the decision in 
All India Judges’ Association (3) (supra). 
133.	The contours of the words ‘Merit-cum-Seniority’ are drawn by this 
Court in the lines immediately following these words. The phrase “for 
this purpose”, as it appears in paragraph 27 of the aforesaid decision, 
acts as a bridge between the words – “Merit-cum-Seniority” – their 
substance. For the purpose of 65% promotional quota, this Court, 
in the said paragraph, has defined “merit” as the possession of a 
minimum standard, or suitability. This Court deliberately did not 
impart any competitive or comparative character to the term and 
such intention should be kept in mind while interpreting the term
‘Merit-cum-Seniority’ for the purpose of the 65% promotional quota. 
134.	The suitability test assesses multiple aspects of a candidate’s merit 
like knowledge of law, quality of judgments, ACRs, etc. along with 
the efficiency of the candidate exhibited during the tenure already 
served. The suitability test is devised in such a manner that all 
candidates who clear the test can be said to possess more or 
less the same level of merit. Once a list of all similarly meritorious 
candidates is prepared, seniority is applied to select the candidates 
for promotion. Although seniority is applied at the last stage of the 
selection process, yet merit still plays the pre-dominant role as a 
candidate who does not possess the necessary suitability becomes 
ineligible for promotion irrespective of their seniority. 
135.	We are of the view that it would be incorrect to hold that merely 
because the test was not one of comparative merit and as seniority 
was applied at the final stage of the selection process, the process 
cannot be said to be one not adhering to the principle of ‘Merit-cum-
Seniority’. As long as ‘Merit-cum-Seniority’ is applied in the manner it
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has been explained in the decision in All India Judges’ Association 
(3) (supra), wherein both merit and seniority are considered, and 
merit plays the dominant role, the process of promotion cannot be 
said to be violative of the principle of ‘Merit-cum-Seniority’. The 
expressions used in the rules should be interpreted bearing in mind 
the principles enunciated in the aforesaid decision, and not on the 
basis of the various decisions of this Court that have been decided 
in entirely different factual situations. Further, if the principle of 
‘Merit-cum-Seniority’ is applied as argued by the petitioners, there 
would necessarily be no difference between the categories of ‘merit’ 
(10%) and ‘Merit-cum-Seniority’ (65%). It must be noted that the 
minimum qualifying service for the 65% category according to the 
2005 Rules is two-years while that for the 10% category is five-years. 
Thus, appointment to the former category given the lesser years of 
minimum service allows relatively junior candidates to supersede 
the senior candidates based on the suitability test. Thus, while 
candidates who have two to five years of service will not be eligible 
to apply for promotion for the 10% promotional quota, they may 
still have the opportunity to apply and be considered for the 65% 
quota based on securing a minimum of 40% (and 50% aggregate) 
in each of the following indicators which measures the merit of 
the candidate:
suitability test, evaluation of ACR, assessment of 
average disposal and evaluation of judgments. Thus, it is beyond 
any doubt that the criteria prescribed for promotion of candidates 
to the 65% promotional quota complies with the principle of ‘Merit-
cum-Seniority’.
136.	Words used in a judgment are not to be read as words of a statute, 
but should be understood in the context of the facts of a given case. 
(See Ambica Quarry Works v. State of Gujarat, (1987) 1 SCC 213; 
Bharat Petroleum Corporation Ltd. v. NR Vairamani, (2004) 8 SCC 
579, Municipal Corporation Delhi v. Mohd Yasin, (1983) 3 SCC 
229). The attempt on the part of the petitioners is to persuade us to 
take the view that the connotation ‘Merit-cum-Seniority’ as figuring 
in the 2005 Rules, should be strictly understood as all merit and 
no seniority. This is not correct to our understanding. Such attempt 
must necessarily fail as the words “Merit-cum-Seniority” as they 
figure in the 2005 Rules read in conjunction with paragraphs 27 
and 28 respectively of All India Judges’ Association (3) (supra), 
should be interpreted in the context in which they have been used
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by this Court – which we have discussed elaborately in the foregoing 
paragraphs
137.	The petitioners have relied on the decision of this Court in 
Thampanoor Ravi v. Charupara Ravi reported in (1999) 8 SCC 
74 to contend that the term “Merit-cum-Seniority” has acquired a 
technical meaning and thus, should be given the meaning which is 
used ordinarily in relation to it. The relevant passage from the said 
decision is extracted here: -
“22. In ascertaining the meaning of an expression used 
in a statute, certain norms are adopted. If the legislature 
has used an expression which has acquired a technical 
meaning and such expression is used ordinarily in the 
context of a particular branch of law, it must be assumed 
that because of its constant use the legislature must be 
deemed to have used such expression in a particular 
sense as is understood when used in a similar context. 
If an expression has acquired a special connotation in 
law, dictionary or general meaning ceases to be helpful 
in interpreting such a word. Such an expression must be 
given its legal sense and no other. In this context, we 
may refer to the weighty observation in the decision of 
this Court in State of Madras v. Gannon Dunkerley & Co. 
(Madras) Ltd. [AIR 1958 SC 560 : 1959 SCR 379] that a 
term of well-recognised import in the general law should 
be accepted as confining the meaning in interpreting the
Constitution. If the expression “undischarged insolvent” has 
acquired a special meaning under the law of insolvency, 
we must understand that that is the meaning that is sought 
to be attributed to the expression used in Article 191(1)
(c) of the Constitution.”
138.	The aforesaid contention of the petitioner deserves to be rejected 
for two good reasons: -
(1)	 First, the observations in the said case have been made in the 
context of a technical meaning used in a statute. In the present 
case, the term ‘Merit- cum-Seniority’ as it appears in the 2005 
Rules has been imported verbatim from the decision in All India 
Judges’ Association (3) (supra) and thus has to be assigned 
the meaning as given to it in the said case. Thus, it cannot be
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said that ‘Merit-cum-Seniority’ should be assigned the same 
meaning as understood in other decisions of this Court, or as 
assigned to it in different statutory provisions. 
(2)	 Secondly, the term ‘Merit-cum-Seniority’, as elaborately 
discussed hereinabove, is a term of flexible meaning and the 
exact contours of it depend on the context and the policy in 
furtherance of which it is used. 
139.	In Malik Mazhar Sultan & Anr. (3) (supra) this Court directed the 
High Courts to be practical in matters of promotion to the cadre of 
District & Sessions Judges and held that the 65% promotion quota 
of the cadre of District & Sessions Judges should be filled on the 
basis of the principle of ‘Seniority-cum-Merit’. This Court further held 
that seniority should have a predominant role in giving promotions 
to Civil Judge (Senior Division) and that the High Court may deny 
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. It is also 
brought to our notice that as the promotion policy itself 
is not working properly, a large number of Civil Judges 
(Junior Division) are continuing in the same post, causing 
stagnation from about 15 to 18 years. This is because the 
timely promotion is not being taken care of by the High 
Court and this should be corrected at the earliest. Now
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we are told that a total number of 217 posts have been 
advertised for appointment of Civil Judges (Junior Division) 
and 12 posts of District Judges (direct).”
(Emphasis supplied)
H.	
FEW SUGGESTIONS TO MAKE THE SUITABILITY TEST 
MORE MEANINGFUL
140.	We have exhaustively discussed and explained the true meaning 
to be assigned to the principle of ‘Merit-cum-Seniority’ in context of 
Rule 5(1) of the 2005 Rules. However, we are of the view that this 
debate should not come to an end as we propose to convey to the 
High Court of Gujarat to amend its Rules appropriately in line with 
the Uttar Pradesh Higher Judicial Service Rules, 1975 where the 
recruitment process has been elaboratively laid down. We are also 
of the view that the minimum standard to be objectively assessed 
by way of a suitability test should be made more efficacious and 
productive. In this regard, we would like to suggest the following: -
(i)	
Apart from the four components included in the Suitability Test, 
an additional fifth component in the form of an Interview or Viva 
Voce should also be included in order to assess the ability and 
knowledge of the candidates. 
(ii)	 The High Court may consider enhancing the minimum specified 
threshold of marks as prescribed in the suitability test and each 
of its component.
(iii)	 The evaluation of judgments delivered by the judicial officer 
being considered for
promotion should be of the last two years 
instead of one year.
(iv)	 Instead of seniority being considered at the very last stage of 
the process, some marks may be allocated for seniority at the 
stage of suitability test and thereafter, the final select list may 
be prepared on the basis of total marks.
I.	
CONCLUSION
141.	We summarise our final conclusion as under: -
(A)	 What has been conveyed, in so many words, by this Court in 
All India Judges’ Association (3) (supra) is that the suitability 
of each candidate should be tested on their own merit. The
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aforesaid decision does not speak about comparative merit for the 
65% promotional quota. In other words, what is stipulated is the 
determination of suitability of the candidates and assessment of 
their continued efficiency with adequate knowledge of case law.
(B)	 For the 65% promotional quota this Court in All India Judges’ 
Association (3) (supra) did not state that after taking the 
suitability test, a merit list should be prepared and the judicial 
officers should be promoted only if they fall in the said merit list. 
It cannot be said to be a competitive exam. Only the suitability 
of the judicial officer is determined and once it is found that 
candidates have secured the requisite marks in the suitability 
test, they cannot be thereafter ignored for promotion.
(C)	 However, we clarify that for the 65% promotional quota, it is for 
a particular High Court to prescribe or lay down its own minimum 
standard to judge the suitability of a judicial officer, including 
the requirement of comparative assessment, if necessary, for 
the purpose of determining merit to be objectively adjudged 
keeping in mind the statutory rules governing the promotion 
or any promotion policy in that regard. 
(D)	 We find no fault with the promotion process adopted by the 
High Court of Gujarat as the same fulfils the twin requirements 
stipulated in paragraph 27 of All India Judges’ Association 
(3) (supra) being: - 
(I)	
The objective
assessment of legal knowledge of the judicial 
officer including adequate knowledge of case law and; 
(II)	 Evaluation of the continued efficiency of the individual 
candidates.
(E)	 The four components of the Suitability Test as prescribed under 
the recruitment notice dated 12.04.2022 comprehensively 
evaluate (i) the legal knowledge including knowledge of the 
case law through the objective MCQ - based written test AND 
(ii) the continued efficiency by evaluation of the ACRs, average 
disposal and past judgments of the concerned judicial officer.
(F)	 We are of the view that if the contention of the petitioners were 
to be accepted then it would completely obliterate the fine 
distinction between the two categories of promotion in the cadre
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of District & Sessions Judge by way of 65% promotion on the 
basis of ‘Merit-cum-Seniority’ and 10% promotion strictly on the 
basis of merit. In other words, the 65% quota for promotion will 
assume the character of the 10% quota for promotion by way 
of a departmental competitive examination which is distinct in 
its nature since the latter is strictly based on merit. 
(G)	 Deviating from the process of promotion duly followed by the 
High Court of Gujarat since 2011 would cause grave prejudice to 
those judicial officers who lost out in the previous selections to 
the Higher Judicial Service despite having scored higher marks 
in the suitability test since, judicial officers who were relatively 
senior were promoted to the cadre of District & Sessions Judges. 
Accepting the argument of the petitioners would completely flip 
the process and displace the respondents once again, for a 
contrary reason.
142.	We clarify that this judgment shall not be construed to invalidate 
the promotions to the Higher Judicial Service granted by other High 
Courts based on a construction of their own rules and requirements 
of service in the state judiciary. If any challenge to such promotion 
process is pending, it shall be dealt with independently by the High 
Court or the forum where any issue is pending.
143.	For all the foregoing reasons, we have reached the conclusion that 
the impugned final
Select List dated 10.03.2023 is not contrary to 
the principle of ‘Merit-cum-Seniority’ as stipulated in Rule 5(1)(I) of 
the 2005 Rules.
144.	In the result, the present petition fails and is hereby dismissed. 
Interim Order granted earlier stands vacated. 
145.	The parties shall bear their own costs.
146.	Pending application(s), if any, shall also stand disposed of.
Result of the case: Petition dismissed.
†Headnotes prepared by: Ankit Gyan