Read why SC upheld Gujarat HC’s promotion of Judicial Officers based on 65% promotional quota complying with principle of ‘Merit-cum-Seniority’

Supreme Court: In a civil writ petition under Article 32 of the Constitution of India filed by two Civil Judges challenging the erroneous application of the principle of ‘Seniority-cum-Merit’ in the recruitment undertaken by the Gujarat High Court 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 Gujarat State Judicial Service Rules, 2005 (‘2005 Rules’) stipulates that the promotion shall be based on the principle of ‘Merit-cum-Seniority’, the three Judge Bench comprising of Dr. DY Chandrachud, CJI, J.B. Pardiwala* and Manoj Misra, JJ. dismissed the petition and upheld the promotion method adopted by the High Court. The impugned final Select List dated 10-03-2023 was found to be not contrary to the principle of ‘Merit-cum-Seniority’ as stipulated in Rule 5(1)(I) of the 2005 Rules.

Background

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. A list of 205 candidates was prepared falling within the zone of consideration by including the senior-most Civil Judges (Senior Division) not exceeding three-times the notified vacancies. For the purpose of consideration for promotion, they were assessed on basis of four components- Written Test (Objective Type — MCQs) 100; Examination and Evaluation of Annual Confidential Reports for last five years-20; Assessment of Average Disposal of last five years of the Judicial Officer concerned- 20; Evaluation of Judgments delivered by the Judicial Officer concerned during the period of last one year- 60. Pursuant to the Written Test 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. After the evaluation of the Annual Confidential Reports (‘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 component and a minimum aggregate of 50% marks in all the four components of the suitability test. In the final Select List dated 10-03-2023 wherein the senior-most 68 candidates amongst the aforementioned 149 eligible candidates were given promotion to the post of District Judge.

On 12-05-2023, the Division Bench of the Court had stayed the decision to promote 68 judicial officers as District Judges after finding the impugned Select List dated 10-03-2023 issued by the Gujarat High Court and the subsequent Notification dated 18-04-2023 issued by the State Government granting promotion to the cadre of District Judge, as illegal and contrary to the Gujarat State Judicial Service Rules, 2005 and the Supreme Court ruling in All India Judges’ Association v. Union of India, (2002) 4 SCC 247.

Analysis and Decision

Principle of ‘Merit-cum-Seniority’ in service jurisprudence and ‘Hybrid-Dynamic Mode of Promotion’ in Service Jurisprudence

The Court cited and referred to a trajectory of authorities analyzing the principle of the ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ in service jurisprudence. The Court highlighted that the principle of ‘Seniority-cum-Merit’ postulates that:

1. Minimum requirement of merit and suitability which is necessary for the higher post can be prescribed for the purpose of promotion.

2. Comparative Assessment amongst the candidates is not required.

3. Seniority of a candidate is not a determinative factor for promotion but has a predominant role.

4. Upon fulfilling the minimum qualifications, promotions must be based on inter-se seniority.

The principle of ‘Merit-cum-Seniority’ postulates that:

1. Merit plays a predominant role in and seniority alone cannot be given primacy.

2. Comparative Assessment of Merit is a crucial, though not a mandatory, factor.

3. 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.

The Court clarified that the afore-stated postulations ought not be understood as mandatory for the reason 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 and cannot be applied uniformly to all services and matters of promotion including the judicial services.

The Court explained that both these principles 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 Court said that they can be described as two ends of a spectrum. They are broad categories or frameworks for promotion and do represent the actual modalities by which promotions are to take place. It is the rules and the promotion policy, along with the intention of the legislature or the selection board, as the case may be, that supplements these principles and delineates the actual modality of how promotion is to take place. The Court reiterated that “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.”

What is ‘Merit-cum-Seniority’ for the purpose of Promotion to the cadre of District and Sessions Judges?

In All India Judges’ Association (3) (supra) the method for recruitment to the posts in the Higher Judicial Service, i.e., District Judges and Additional District Judges was laid down. The two methods for appointment were- 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.

The Court clarified that 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) indicated that there is an intention to test each candidate on their own merit and never mandated that a comparative assessment of merit was also required. It was not indicated by the Court that after taking the suitability test, a list should be prepared based on inter-se merit and the judicial officers should be promoted only if they fall in the said merit list. It cannot be said to be a competitive exam, only the suitability of the judicial officer is to be assessed and once it is found that the candidate has secured the requisite marks in the suitability test, they cannot be thereafter ignored for promotion. The objective 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 and the due weightage on seniority in the regular promotional category was not diluted in any manner except for the introduction of the suitability test.

The Suitability Test

The Court explained that the concept of assessment of suitability was introduced with an aim to ensure that a certain minimum standard is maintained in the Higher Judicial Service and the method of devising a suitability test was left to the respective High Courts. However, broad guiding principles were laid down by the Court on the contours of the suitability test, as follows:

1. 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?

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)?

In the present case, the term ‘Merit-cum-Seniority’ in context of 2005 Rules implied that both merit and seniority would be considered in the promotion of a candidate and the ‘merit’ would be determined on the basis of a suitability test. The Court explained that the mode 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. The Court noted that the merit of a candidate in the matter at hand was assessed by means of a suitability test, as prescribed in All India Judges’ Association (3) (supra). The Court explained that 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 and once a list of all similarly meritorious candidates is prepared, seniority is applied to select the candidates for promotion. The 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.

Further, the Court noted that according to the 2005 Rules, the minimum qualifying service for the 65% category is two-years while that for the 10% category is five-years. Thus, appointment to the 65% 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, the Court held that it found no fault with the promotion process adopted by the High Court as the same fulfilled the twin requirements stipulated in All India Judges’ Association (3) (supra).

Suggestions to make the suitability test more meaningful

The Court proposed to the High Court to amend its Rules appropriately in line with the Uttar Pradesh Higher Judicial Service Rules, 1975 where the recruitment process has been elaboratively laid down. The Court also gave following suggestions for suitability test to be more efficacious and productive:

1. 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.

2. The High Court may consider enhancing the minimum specified threshold of marks as prescribed in the suitability test and each of its component.

3. The evaluation of judgments delivered by the judicial officer being considered for promotion should be of the last two years instead of one year.

4. 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.

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