Supreme Court of India

Ravikumar Dhansukhlal Maheta vs High Court Of Gujarat on 17 May, 2024

Author:
Dhananjaya Y. Chandrachud

Bench:
Dhananjaya Y. Chandrachud

2024 INSC 436 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 432 OF 2023

RAVIKUMAR DHANSUKHLAL MAHETA & ANR. ...PETITIONER(S)

VERSUS

HIGH COURT OF GUJARAT & ORS. ...RESPONDENT(S)

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

Signature Not Verified

E. SUBMISSIONS ON BEHALF OF THE PROMOTED CANDIDATES .. 17

Digitally signed by

CHETAN KUMAR

Date: 2024.05.17

13:15:43 IST

Reason:

F. POINTS FOR DETERMINATION .......................................................... 20

G. ANALYSIS .................................................................................................. 20

Writ Petition (C) No. 432 of 2023 Page 1 of 84

i. Maintainability of the present Writ Petition under
Article 32 .................... 20

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

Writ Petition (C) No. 432 of 2023 Page 2 of 84

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 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: -

Writ Petition (C) No. 432 of 2023 Page 3 of 84

“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
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.

Writ Petition (C) No. 432 of 2023 Page 4 of 84

(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. Components of Suitability Test Marks
No

1. Written Test (Objective Type - MCQs) 100

2. Examination and Evaluation of Annual 20

Confidential Reports for last five years

3. Assessment of Average Disposal of last five 20
years of the Judicial Officer concerned.

4. Evaluation of Judgments delivered by the 60
Judicial Officer concerned during the
period of last one year. *

* 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.

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:

Writ Petition (C) No. 432 of 2023 Page 5 of 84

Sr. Subject Marks
No

1. Legal Knowledge [Detailed Syllabus 50

attached herewith at Annexure-‘A’]

2. Administrative Knowledge [GCS Rules 25

2002, Civil Manual, Criminal Manual, etc.]
3. General Knowledge & Aptitude Test [Test of 25
Reasoning, Numerical & Mental Ability &
Psychological Test, etc.]

(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).

4. ELIGIBILITY FOR PROMOTION :

The Judicial Officer, who obtains minimum 40% Marks in each
Component and minimum 50% Marks in aggregate in the Grand

Writ Petition (C) No. 432 of 2023 Page 6 of 84

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)

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
,

Writ Petition (C) No. 432 of 2023 Page 7 of 84

→
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,
,
→
The Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989
,
→
The Prevention of Corruption Act, 1988

→
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
,
(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.

Writ Petition (C) No. 432 of 2023 Page 8 of 84

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 20

Confidential Reports for last five years.

3. Assessment of Average Disposal of last five years 20
of the Judicial Officer concerned.

4. Evaluation of Judgments delivered by the Judicial 60
Officer concerned during the period of last one
year.

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.

Writ Petition (C) No. 432 of 2023 Page 9 of 84

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.

Writ Petition (C) No. 432 of 2023 Page 10 of 84

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.

2. Civil Judges (Senior Division) who fulfilled the

eligibility criteria of a minimum of two-years of 417

qualifying service.

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

ratio.

4. Civil Judges (Senior Division) who appeared for the

Suitability Test (MCQ’s with no negative marking). 198

(Seven candidates chose not to appear for the

suitability test)

5. Civil Judges (Senior Division) who secured 40%

marks in the Suitability Test (MCQs with no 175

negative marking).

6. Total number of Civil Judges (Senior Division) who

secured total of 50% marks and a minimum 40% 149

marks in all four components being the Written Test,

Writ Petition (C) No. 432 of 2023 Page 11 of 84

evaluation of ACRs, assessment of average disposal

and evaluation of Judgments.

7. Select List as per the notified vacancy prepared on
the basis of seniority.

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

Writ Petition (C) No. 432 of 2023 Page 12 of 84

Bench of Hon’ble the Chief Justice of India. The relevant observations read as

under: -

“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 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

Writ Petition (C) No. 432 of 2023 Page 13 of 84

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’.

Writ Petition (C) No. 432 of 2023 Page 14 of 84

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 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

Writ Petition (C) No. 432 of 2023 Page 15 of 84

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’.

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.

Writ Petition (C) No. 432 of 2023 Page 16 of 84

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

Writ Petition (C) No. 432 of 2023 Page 17 of 84

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 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-

Writ Petition (C) No. 432 of 2023 Page 18 of 84

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.

Writ Petition (C) No. 432 of 2023 Page 19 of 84

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

Writ Petition (C) No. 432 of 2023 Page 20 of 84

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 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
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

Writ Petition (C) No. 432 of 2023 Page 21 of 84

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 petition under
Article
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

Writ Petition (C) No. 432 of 2023 Page 22 of 84

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).

Writ Petition (C) No. 432 of 2023 Page 23 of 84

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,

Writ Petition (C) No. 432 of 2023 Page 24 of 84

recommended devising a more robust mechanism for 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)

Writ Petition (C) No. 432 of 2023 Page 25 of 84

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.

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

Writ Petition (C) No. 432 of 2023 Page 26 of 84

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:

(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

Writ Petition (C) No. 432 of 2023 Page 27 of 84

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.

Writ Petition (C) No. 432 of 2023 Page 28 of 84

(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 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.

Writ Petition (C) No. 432 of 2023 Page 29 of 84

(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. 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,

Writ Petition (C) No. 432 of 2023 Page 30 of 84

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
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

Writ Petition (C) No. 432 of 2023 Page 31 of 84

principle “merit-cum-seniority”, 25 per cent strictly on 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-

Writ Petition (C) No. 432 of 2023 Page 32 of 84

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
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,

Writ Petition (C) No. 432 of 2023 Page 33 of 84

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 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.

Writ Petition (C) No. 432 of 2023 Page 34 of 84

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: -

“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

Writ Petition (C) No. 432 of 2023 Page 35 of 84

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%.

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.

Writ Petition (C) No. 432 of 2023 Page 36 of 84

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

Writ Petition (C) No. 432 of 2023 Page 37 of 84

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.

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
High Court of
Calcutta v. Amal Kumar Roy
, (1963) 1 SCR 437.

Writ Petition (C) No. 432 of 2023 Page 38 of 84

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.”

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
Henry Campbell Black, Black’s Law Dictionary, p. 1528 (6th Edn., 1968).
H. Gerth and C.W. Mills, From Max Weber: Essays in Sociology, 199, 202 (Oxford University Press,
New York, 1958).

Writ Petition (C) No. 432 of 2023 Page 39 of 84

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 rules of the

personnel agency. Personnel agencies fix educational and experience

requirements for eligibility to compete for promotion. A hint of the ‘Merit-cum-
K.K. Parmar v. High
Court of Gujarat, (2006) 5 SCC 789.
Kartar Kaur v. State
, (1967) SLR 34.
, H. Eliot Kaplan, The Law of Civil Services (New York University Press, Mathew Bender & Company,
New York, 1958).

Writ Petition (C) No. 432 of 2023 Page 40 of 84

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
Id.
Elman, B.A., Political, social, and cultural reproduction via civil service examinations in late imperial China,
50(1) Journal of Asian Studies, pp.7-28 (1991).
Jenifer Hart, The genesis of the Northcote–Trevelyan report, in Studies in the growth of nineteenth
century government pp. 63-81 (Ed. Gillian Sutherland, Routledge & Kegan Paul, London, 1972).
Kaplan, N.I., A changing culture of merit: French competitive examinations and the politics of
selection, pp. 1750-1820 (Columbia University Press, 1999).

Writ Petition (C) No. 432 of 2023 Page 41 of 84

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 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
The Macaulay Committee’s Report on the Indian Civil Service 1854.
History of the Commission, Union Public Service Commission.

Writ Petition (C) No. 432 of 2023 Page 42 of 84

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
S. REP. No. 969; recited from O’Rourke, 1993, p. 344.

Writ Petition (C) No. 432 of 2023 Page 43 of 84

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)

Writ Petition (C) No. 432 of 2023 Page 44 of 84

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 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

Writ Petition (C) No. 432 of 2023 Page 45 of 84

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
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

Writ Petition (C) No. 432 of 2023 Page 46 of 84

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)

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]

Writ Petition (C) No. 432 of 2023 Page 47 of 84

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

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)

Writ Petition (C) No. 432 of 2023 Page 48 of 84

(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 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)

Writ Petition (C) No. 432 of 2023 Page 49 of 84

(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.

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

Writ Petition (C) No. 432 of 2023 Page 50 of 84

‘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,

Writ Petition (C) No. 432 of 2023 Page 51 of 84

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 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.

Writ Petition (C) No. 432 of 2023 Page 52 of 84

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 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.

Writ Petition (C) No. 432 of 2023 Page 53 of 84

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 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.

Writ Petition (C) No. 432 of 2023 Page 54 of 84

(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

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

Writ Petition (C) No. 432 of 2023 Page 55 of 84

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 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

Writ Petition (C) No. 432 of 2023 Page 56 of 84

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.

Writ Petition (C) No. 432 of 2023 Page 57 of 84

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.

Writ Petition (C) No. 432 of 2023 Page 58 of 84

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 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

Writ Petition (C) No. 432 of 2023 Page 59 of 84

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).

Writ Petition (C) No. 432 of 2023 Page 60 of 84

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

Writ Petition (C) No. 432 of 2023 Page 61 of 84

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: -

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

Writ Petition (C) No. 432 of 2023 Page 62 of 84

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

Writ Petition (C) No. 432 of 2023 Page 63 of 84

must be maintained between ‘Merit’ and ‘Seniority’ with ‘Merit’ playing a more

predominant role in the selection process.

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

Writ Petition (C) No. 432 of 2023 Page 64 of 84

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 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.

Writ Petition (C) No. 432 of 2023 Page 65 of 84

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
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
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, 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)

Writ Petition (C) No. 432 of 2023 Page 66 of 84

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 down the method of

recruitment to the posts in the Higher Judicial Service, i.e., District Judges and

Writ Petition (C) No. 432 of 2023 Page 67 of 84

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

Writ Petition (C) No. 432 of 2023 Page 68 of 84

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
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

Writ Petition (C) No. 432 of 2023 Page 69 of 84

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 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

Writ Petition (C) No. 432 of 2023 Page 70 of 84

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 be ascertained through a limited departmental

competitive examination.

Writ Petition (C) No. 432 of 2023 Page 71 of 84

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

Writ Petition (C) No. 432 of 2023 Page 72 of 84

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 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.

Writ Petition (C) No. 432 of 2023 Page 73 of 84

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

Writ Petition (C) No. 432 of 2023 Page 74 of 84

suitability parameters. Whether the idea of 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.

Writ Petition (C) No. 432 of 2023 Page 75 of 84

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 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

Writ Petition (C) No. 432 of 2023 Page 76 of 84

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-

Writ Petition (C) No. 432 of 2023 Page 77 of 84

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 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

Writ Petition (C) No. 432 of 2023 Page 78 of 84

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 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

Writ Petition (C) No. 432 of 2023 Page 79 of 84

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 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

Writ Petition (C) No. 432 of 2023 Page 80 of 84

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 aforesaid decision does not speak

about comparative merit for the 65% promotional quota. In other words, what

Writ Petition (C) No. 432 of 2023 Page 81 of 84

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.

Writ Petition (C) No. 432 of 2023 Page 82 of 84

(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 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.

Writ Petition (C) No. 432 of 2023 Page 83 of 84

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.

...................................................... CJI.
(Dr. Dhananjaya Y. Chandrachud)

.......................................................... J.

(J.B. Pardiwala)

.......................................................... J.

(Manoj Misra)

New Delhi
May 17th, 2024

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