SUJATA KOHLI versus REGISTRAR GENERAL, HIGH COURT OF DELHI & ORS. on 24 April 2020

[2020] 9 S.C.R. 361

SUJATA KOHLI

v.

REGISTRAR GENERAL, HIGH COURTOF DELHI & ORS.

(Civil Appeal No. 2374 of 2020)

APRIL 24, 2020

[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Delhi Higher Judicial Service Rules, 1970: r.27 – Challengeto r.27 as being ultravires particularly with reference to decision ofSupreme Court in All India Judges Association – High Court rejectedthe challenge – Held: High Court rightly rejected challenge to r.27because this residuary clause in the Rules of 1970 does not offendthe law declared in All India Judges Association in any manner – Thisresiduary clause is not of equating the judicial officers with theexecutive officers but only provides that in regard to the matters forwhich no provision or insufficient provision has been made in theRules of 1970, the relevant rules, directions or orders as applicableto IAS shall regulate the conditions of service of the officers ofDHJS – A perusal of the other provisions in the Rules of 1970 makesit clear that reference to the service conditions of the members ofIAS is not an anathema to these rules and, on the contrary, wherevernecessary, the applicable rules, orders or directions concerningthe members of IAS do govern the service conditions of the judicialofficers too – High Court establishment provided by way of theimpugned resolutions norms for promotion while taking cue fromthe norms applicable to the members of IAS in the equivalent payscale – Providing for such norms does not in any manner stand atconflict with the principles laid down in the case of All India JudgesAssociation.

Delhi Higher Judicial Service Rules, 1970: Merit-cum-seniority – Criteria for promotion to the posts of District and SessionsJudges – Implementation of revised criteria in phased manner –Challenged – Held: High Court, in its Full Court meeting dated28.04.2009 had adopted a resolution to the effect that, for beingselected/promoted as District and Sessions Judge, a candidate ofDHJS ought to fulfil the criteria of possessing at least two ‘A’ (very

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Agood) and three ‘B+’ (good) ACR gradings for the preceding fiveyears from the date of consideration for such appointment –Thereafter, in its Full Court meeting dated 15.01.2010, the HighCourt proceeded to modify the said criteria to the effect that acandidate of DHJS ought to possess the minimum ‘A’ (very good)grading in ACRs of each of the five years under consideration – AsBagainst resolution dated 15.01.2010, the High Court received certainrepresentations, including those from the Associations of the Officersand, upon consideration of these representations, a committeecomprising of four Judges recommended for implementation of therevised criteria in a phased manner; and such recommendations ofCthe committee were accepted by the Full Court of the High Court –In the given fact situation and the methodology of gradualimplementation adopted by the High Court, the suggestion on thepart of the appellant that there had been any so-called retrospectiveoperation of revised criteria was totally bereft of substance – Inview of the duties and responsibilities attached with the higher postsDof District and Sessions Judge and Principal Judge, Family Court,the High Court cannot be faulted in providing for a reasonablemethod of assessment of the requisite merit in the manner that acandidate in the zone of consideration ought to be possessingminimum five “very good” ACRs in the preceding five years fromEthe base year – In fact, the criteria so adopted had been the identicalone as provided for the members of IAS in the equivalent pay scales– High Court did not change the eligibility criteria for appointmentto the post of District and Session Judge or Principal Judge, FamilyCourt but merely evolved a selection criteria for evaluation of eligiblecandidates – There was no denial of a pre-existing right of theFappellant, who entered the zone of consideration only in the year2014-15 whereas, the criteria in question was implemented forappointments made from the year 2012.

Delhi Higher Judicial Service Rules, 1970: r.27 – Whether the appellant was denied fair and reasonable consideration of herGcase for promotion to the posts of District and Sessions Judge/Principal judge, Family Court by operation of criteria laid down inthe impugned resolutions – Held: Appellant was a member of DHJS– By virtue of r.27, she would be deemed to be having constructiveknowledge that the criteria to be adopted for upward progressionHwould be that as applicable for the equivalent posts in IAS – When

it had consistently been provided that for promotion to the scale ofRs. 18,400-22,400 and above, the prescribed benchmark of “verygood” ought to be met in all ACRs of five years under consideration;and when the higher posts of District and Sessions Judge andPrincipal Judge, Family Court do carry much higher scales of pay,neither the High Court could be faulted in applying the samebenchmark for such higher posts in DHJS nor the appellant couldfeign ignorance about the same – Apart from that in the 1970 Rules,the entry level promotion to the post in DHJS is on the basis ofmerit-cum-seniority or merit – In the light of such requirements, anyupward progression in DHJS could only be on the higherrequirements of merit and in any case, such requirements cannot belesser than the requirements at entry level – Appellant was consciousof the fact that for upward movement in DHJS, merit would acquireprimacy; and that seniority alone was not going to be decisive forpromotion to the higher posts of District and Sessions Judge andthe Principal Judge, Family Court – Appellant was also consciousof the position that while making any such promotion, the assessmentwould be based on the competitive merit of the candidates in thezone of consideration; and if any candidate in such zone ofconsideration was possessed of better merit than herself, he wouldbe preferred for promotion – Thus, appellant was not denied fairand reasonable consideration of her case for promotion to the postsof District and Sessions Judge/ Principal Judge, Family Court byoperation of the criteria laid down in the impugned resolutions.

Judicial Officer – ACR grading – Whether the appellantsuffered any prejudice in the matter of ACR grading – It is not indispute that the appellant was informed of every grading made inher ACR – She was awarded ‘B+’ (good) in the years 2010, 2011,2012 and 2013; and ‘A’ (very good) in the year 2014 – Materialplaced on record showed that the appellant never challenged hergradings for any year except that for the year 2011 when sherequested for upgradation of her ACR grading from ‘B’ to ‘B+’ or‘A’; and the High Court, acceding to her request, upgraded herACR to ‘B+’ – Impugned resolution dated 27.01.2011 came to beadopted after due consideration of the representations made to theHigh Court and in conformity with the criteria provided by theGovernment of India for the posts equivalent in scale to that ofDistrict Judges – However, the criteria of having ‘A’ (very good)

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Agrading in the preceding five years was implemented in a phasedmanner – Appellant, not being oblivious of the position that for anyupward progression in DHJS, comparative merit would be a keyfactor, chose to remain contented with her grading at ‘B+’ in therelevant years and did not question the same at the appropriatetime and in appropriate manner – That being the position, theBappellant cannot be acceded the right to contend now and at thisstage that the ACR gradings have operated adverse to her – Whileraising grievance with regard to the impact and effect of ACRgradings, the appellant appears to have missed out the fundamentalfactor that for the promotions in question, an individual’s minimumCmerit, by itself, was not going to be decisive; but the relevant factorwas going to be comparative merit of the persons in the zone ofconsideration – That being the position, when the persons in zoneof consideration possessing ‘A’ (very good) grading have beenpromoted in preference to her, the appellant cannot raise a grievanceabout her gradings after such promotions – Appellant was not ableDto establish that she had suffered any prejudice in the matter ofACR gradings.

Dismissing the appeal, the Court

HELD: 1.1 The criteria in question, for promotion to theEpost of District and Sessions Judge and equivalent, had beenevolved and operated by the High Court in the purported exerciseof its powers under the Delhi Higher Judicial Service Rules, 1970.The matter in the present appeal relates to promotion to theposts of District and Sessions Judge or Principal Judge, FamilyCourt within the cadre of DHJS. Apparently, no separate provisionFis found in the Rules of 1970 as regards such upward progressionwithin the cadre and obviously, for such a matter, the residuaryprovision as contained in Rule 27 comes into operation by virtueof which, the directions or orders for the time being in force andapplicable to the officers of comparable status in IAS would apply.G[Paras 15.2, 15.3][396-H; 397-A; 398-D-E]

1.2 The appellant had attempted to question the said Rule27 of the Rules of 1970 as being ultra vires, particularly withreference to the decision of this Court in the case of All IndiaJudges Association. The High Court rightly rejected such aHchallenge to Rule 27 because this residuary clause in the Rules of 1970 did not appear offending the law declared by this Court inany manner. This residuary clause is not of equating the judicialofficers with the executive officers but only provides that in regardto the matters for which no provision or insufficient provisionhas been made in the Rules of 1970, the relevant rules, directionsor orders as applicable to IAS shall regulate the conditions ofservice of the officers of DHJS. A perusal of the other provisionsin the Rules of 1970 makes it clear that reference to the serviceconditions of the members of IAS is not an anathema to theserules and, on the contrary, wherever necessary, the applicablerules, orders or directions concerning the members of IAS dogovern the service conditions of the judicial officers too. [Para15.3][398-E-H]

All India Judges Association v. Union of India: (1993)4 SCC 288 : [1993] 1 Suppl. SCR 749 – referred to.

2.1 The striking feature of the Rules of 1970 is that evenat the entry level, the promotions are to be made either on merit-cum-seniority basis or on merit basis. Further, grant of SelectionGrade and Super Time Scale is also on assessment of merit-cum-seniority. In the given scheme of the Rules of 1970, it is difficultto countenance any suggestion that in DHJS, merit could beforsaken at any level or only seniority be given primacy in thematter relating to upward progression to the higher posts ofDistrict and Sessions Judge or Principal Judge, Family Court.Rather, looking to the nature of posts, in every higherprogression, merit would play a major role and would, perforce,acquire primacy. [Para 16][401-E-F]

2.2 As per the facts available on record, prior to the year2008, there was only one sanctioned post of District Judge underthe Rules of 1970. Later on, the National Capital Territory ofDelhi came to be bifurcated into nine Civil Districts and in viewof such bifurcation, the strength of District and Sessions Judgeswas increased to 11. This reorganisation and increase of strengthof the cadre of DHJS, obviously, led to the requirement ofproviding the norms and criteria for promotion to the posts ofDistrict and Sessions Judges and equivalent because no suchnorms and criteria were in existence. In keeping with suchrequirements, the High Court, in its Full Court meeting dated AB

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A28.04.2009, adopted a resolution to the effect that, for the purposeof being selected/promoted as District and Sessions Judge, acandidate of DHJS ought to fulfil the criteria of possessing atleast two ‘A’ (very good) and three ‘B+’ (good) ACR gradings forthe preceding five years from the date of consideration for suchappointment. Thereafter, in its Full Court meeting datedB15.01.2010, the High Court proceeded to modify the aforesaidcriteria to the effect that for being promoted as District andSessions Judge, a candidate of DHJS ought to possess theminimum ‘A’ (very good) grading in ACRs of each of the fiveyears under consideration. It had been the case of the respondentCHigh Court that such criteria were adopted as being equivalentto the revised promotion criteria in the Indian AdministrativeServices by virtue of the residuary provision contained in Rule27. As against the aforesaid resolution dated 15.01.2010, the HighCourt received certain representations, including those from theAssociations of the Officers and, upon consideration of theseDrepresentations, a committee comprising of four Judges, in itsreport dated 08.10.2010, recommended for implementation ofthe revised criteria in a phased manner; and suchrecommendations of the committee were accepted by the FullCourt of the High Court on 27.01.2011. In this manner aforesaid,Ethe respondent High Court took the decision to implement therevised criteria envisaged by the resolution dated 15.01.2010 ina phased manner; and the requirements came to be providedthat for appointment to the post of District and Sessions Judge, acandidate should, in the five years preceding the base year, carrythe ACR gradings as follows: (i) for the year 2009, at least twoF‘A’ (very good) and the remaining three ‘B+’ (good); (ii) for theyear 2010, at least three ‘A’ (very good) and the remaining two‘B+’ (good);(iii) for the year 2011, at least four ‘A’ (very good)and the remaining one ‘B+’ (good); and (iv) for the year 2012 andonwards, a minimum of five ‘A’ (very good). Further, theGAdministrative Committee of the High Court, in its meeting dated13.09.2013, resolved, inter alia, that the post of Principal Judge,Family Court being equivalent to that of District and SessionsJudge, the same criteria be also adopted for appointment ofPrincipal Judge, Family Court. [Para 17][401-H; 402-A-H; 403-A-B]H

2.3 The views of the High Court in the impugned orderwere correct that the no-norms position for upward progressionin DHJS, as existing prior to the year 2009, could not have beencontinued with reorganisation of the District Courts and certainnorms, commensurate with the posts in question, were requiredto be provided; and were accordingly provided with reference tothe prescriptions for the officers of IAS in the equivalent payscales. For the officers of such equivalent pay scales, therequirement had been of five “very good” ACR gradings (i.e.,‘A’ grading) for five years preceding the date of consideration forhigher positions. The High Court establishment had further beenreasonable in its approach when such threshold requirement offive “very good” ACR gradings was not foisted on the officersimmediately and, in keeping with the position obtainable in thepast as also keeping in view the merit requirements, took aconsidered decision that such criteria be implemented graduallyand started with the norms of two “very good” with three “good”ACR gradings for the year 2009 and systematically enhanced thenorms. In the given fact situation and the methodology of gradualimplementation adopted by the High Court, the suggestion onthe part of the appellant that there had been any so-calledretrospective operation of revised criteria remains totally bereftof substance and could only be rejected. [Paras 17.1, 17.2][403-C-G]

3.1 The submissions on behalf of the appellant that she wasnot made aware of such so-called revised criteria carry severalshortcomings of their own. The appellant joined DHJS in the year2002. She was confirmed with effect from 25.11.2004. She was,and would always be presumed to be, aware of all the requirementsof the Rules of 1970. Moreover, the appellant, a member of DHJS,cannot suggest that she remained oblivious of the developmentsabout creation of nine Civil Districts in the year 2008 and increasein the strength of District and Sessions Judges to 11. Theappellant was also aware of the fact that no specific provision wasavailable in the Rules of 1970 as regards upward progression inDHJS, particularly to the posts of District and Sessions Judgeand Principal Judge, Family Court and hence, by virtue of Rule27 of the Rules of 1970, she would be deemed to be havingconstructive knowledge that the criteria to be adopted for such A

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Aupward progression would be that as applicable for the equivalentposts in IAS. When it had consistently been provided that forpromotion to the scale of Rs. 18,400-22,400 and above, theprescribed benchmark of “very good” ought to be met in all ACRsof five years under consideration; and when the higher posts ofDistrict and Sessions Judge and Principal Judge, Family CourtBdo carry much higher scales of pay, neither the High Court couldbe faulted in applying the same benchmark for such higher postsin DHJS nor the appellant could feign ignorance about the same.Apart from that, in the Rules of 1970, even the entry levelpromotion to the post in DHJS is on the basis of merit-cum-Cseniority or merit. Viewed in the light of such requirements, itgoes without saying that any upward progression in DHJS couldonly be on the higher requirements of merit and in any case,such requirements cannot be lesser than the requirements atentry level. [Paras 18, 18.1][403-H; 404-A-G]

D3.2 The appellant was aware of, and shall always be deemedto be conscious of, the requirement that any promotion to thepost of District and Sessions Judge or Principal Judge, FamilyCourt would only be on the basis of such norms where meritwould be a crucial factor and seniority alone would not suffice. Itfollows as a necessary corollary that the appellant was alsoEconscious of the position that while making any such promotion,the assessment would be based on the competitive merit of thecandidates in the zone of consideration; and if any candidate insuch zone of consideration was possessed of better merit thanherself, he would be preferred for promotion. [Para 18.3][405-E- FF]

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4.1 Coming now to the operation of the criteria in question,providing for the norms for assessment of the comparative meritsof the candidates in the zone of consideration, was squarely withinthe domain of the High Court; and infringement of the right ofGconsideration could only be suggested if different yardsticks ordifferent norms were provided and applied qua the similarlycircumstanced persons. However, this is not the case of theappellant nor it could be so because the High Court has apparentlytaken up all the persons in the zone of consideration at therelevant time and has accorded promotion on the basis ofH

comparative merit of the candidates. The appellant, when couldnot stand in such competitive merit position, cannot raise acomplaint about infringement of any of her legal rights. It is notthe case of the appellant that anybody junior to her and standingequal in merit or anybody not fulfilling the criteria laid down bythe High Court has been promoted. [Para 19][405-G-H; 406-A-B]

4.2 Looking to the duties and responsibilities attached withthe higher posts of District and Sessions Judge and PrincipalJudge, Family Court, the High Court cannot be faulted inproviding for a reasonable method of assessment of the requisitemerit in the manner that a candidate in the zone of considerationought to be possessing minimum five “very good” ACRs in thepreceding five years from the base year. In fact, the criteria soadopted had been the identical one as provided for the membersof IAS in the equivalent pay scales. [Para 19][406-C-D]

4.3 The material placed on record show that the case of theappellant was duly considered for such promotion along with theother incumbents but herself and a few others were not promotedfor not fulfilling the criteria as provided in the impugnedresolutions. The High Court did not change the eligibility criteriafor appointment to the post of District and Session Judge orPrincipal Judge, Family Court but merely evolved a selectioncriteria for evaluation of eligible candidates. There had not beenany denial of a pre-existing right of the appellant, who enteredthe zone of consideration only in the year 2014-15 whereas, thecriteria in question was implemented for the appointments madefrom the year 2012. The appellant has not been denied fair andreasonable consideration of her case for promotion to the postsof District and Sessions Judge by operation of the criteria laiddown in the impugned resolutions. [Paras 21, 22, 23][406-E-F;407-B-D]

5.1 It is not in dispute that the appellant was, in fact,informed of every grading made in her ACR. She was awarded‘B+’ (good) in the years 2010, 2011, 2012 and 2013; and ‘A’ (verygood) in the year 2014. She never challenged her gradings forany year except that for the year 2011 when she requested for AB

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Aupgradation of her ACR grading from ‘B’ to ‘B+’ or ‘A’; and theHigh Court, acceding to her request, upgraded her ACR to ‘B+’.The appellant, not being oblivious of the position that for anyupward progression in DHJS, comparative merit would be a keyfactor, chose to remain contented with her grading at ‘B+’ in therelevant years and did not question the same at the appropriateBtime and in appropriate manner. That being the position, shecannot be acceded the right to contend now and at this stage thatthe ACR gradings have operated adverse to her. [Para 25.1][409-D-G]

5.2 The other contention as on behalf of the appellant thatConly the overall ACR grading was communicated but not the point-wise grading or criteria for grading, again, does not advance thecause of the appellant in any manner. The appellant failed to showany legal requirement on the respondent establishment to supplyto her anything other than the overall grading. Also the gradingDof an individual officer remains a matter between the officer andthe establishment and any other officer cannot claim to beinformed about the grading of any other officer as a matter ofright. The system and method for awarding of the grades in ACRat the relevant time was equally applicable to all the judicialofficers; and the gradings, not only of the appellant but of all otherEofficers too, were made by way of the same methodology. Thereintoo, the judicial officers’ work and performance was supervisedand graded by the committees comprising of three Judges andultimately, the gradings were finalised by the Full Court. In theimpugned order also, the High Court found such system to be aFmerited one but indicated the want of uniform set of rules orguidelines for all the appraisal committees to follow; and thereafterproceeded to lay down certain norms to be kept in view by theevaluation authorities. The observations by the High Court,essentially meant for improvement of the system with uniform set of guidelines, do not nullify the effect of the ACRs alreadyGmarked by the existing system. The guidelines indicated by theHigh Court in the order impugned could only be construed asbeing meant for future implementation. Nothing turns upon suchobservations in relation to the case of the appellant. The appellanthas not been able to establish that she had suffered any prejudiceHin the matter of ACR gradings. [Paras 27, 28, 29][410-C-H; 411-A-C]

SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURTOF DELHI

Ajit Singh and Ors. (II) v. State of Punjab and Ors.(1999) 7 SCC 209 : [1999] 2 Suppl. SCR 521;Chandramouleshwar Prasad v. Patna High Court AIR1970 SC 370; Central Council for Research inAyurveda & Siddha and Anr. v. Dr. K. Santhakumari(2001) 5 SCC 60 : [2001] 3 SCR 519; Dev Dutt v. Unionof India (2008) 8 SCC 725 : [2008] 8 SCR 174;Sukhdev Singh v. Union of India (2013) 9 SCC 566 :[2013] 5 SCR 1004 – relied on.

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State of U.P. v. Mahesh Narain (2013) 4 SCC 169 :[2013] 4 SCR 534; Nirmal Chandra Bhattachargee &Ors. v. Union of India & Ors. (1991) 2 Suppl. SCC 363– distinguished.

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State of Bihar v. Bal Mukund Sah (2000) 4 SCC 640 :[2000] 2 SCR 299; Haryana State ElectronicsDevelopment Corporation Limited and Ors. v. SeemaSharma and Ors. (2009) 7 SCC 311 : [2009] 7 SCR662 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2374of 2020.

From the Judgment and Order dated 21.08.2018 of the High Courtof Delhi at New Delhi in Civil Writ Petition No. 3157 of 2015

AIndira Jaising, A. Mariarputham, Sr. Advs., Sunil Fernandes,Ms. Nupur Kumar, Ms. Nehmat Kaur, Paras Nath Singh, Zeeshan Diwan,Priyansha I. Sharma, Gautam Narayan, Ms. Asmita Singh, Adithya Nair,Chirag M. Shroff, Ms. Mahima C. Shroff, Ms. Yashika Verma, Advs.for the appearing parties.

BThe Judgment of the Court was delivered byDINESH MAHESHWARI J.

PRELIMINARY AND BRIEF OUTLINE

1. Leave granted.

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2. This appeal by special leave is directed against the judgmentand order dated 21.08.2018 as passed by the High Court of Delhi atNew Delhi in W.P. (C) No. 3157 of 2015, whereby the High Courtdismissed the petition filed by the appellant, a member of Delhi HigherJudicial Service[1], seeking to challenge the constitutional validity of RuleD27 of the Delhi Higher Judicial Service Rules, 1970[2] and the Full Courtresolutions dated 28.04.2009, 15.01.2010 and 27.01.2011[3] concerningthe criteria for appointment of a member of higher judicial service to thepost of District Judge and Sessions Judge or its equivalent.

3. While passing the order impugned, the High Court upheld thegradual implementation of the eligibility criteria for promotion to the postEof District and Sessions Judge or equivalent with reference to the gradingsin the Annual Confidential Reports[4] in five years preceding the baseyear of consideration. However, while concluding on the matter, theHigh Court also made certain observations on desirability of uniformnorms for award of such gradings; and issued directions for evolvingFuniform grading system for future implementation.

RELEVANT RULES AND FULL COURT RESOLUTIONS

4. For comprehension of the principal submissions and the issuesraised in this appeal, appropriate it would be to take note of the relevantrules and the relevant part of the impugned resolutions at the outset.

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1 ‘DHJS’ for short.

2 Hereinafter also referred to as ‘the Rules of 1970’.

3 Hereinafter also referred to as ‘the impugned resolutions’.

H4 ‘ACR’ or ‘ACRs’ for short

4.1. The relevant provisions concerning recruitment to the postsin the cadre of Higher Judicial Service are contained in Rule 7 in theRules of 1970. Rule 7(1), in its present form, reads as under:- “7. Regular recruitment.- (1) Recruitment to the posts in thecadre of District Judge at Entry Level shall be as under:

(a) 65 percent by promotion from amongst the Civil Judges (SeniorDivision), having a minimum ten years service in the cadre ofDelhi Judicial Service, on the basis of principle of merit-cum-seniority; (b) 10 percent by promotion strictly on the basis of merit throughlimited competitive examination of Civil Judges (Senior Division)having not less than five years qualifying service; and

(c) 25 percent of the posts shall be filled by direct recruitmentfrom amongst the persons eligible as per rule 7C on the basis ofthe written and viva voce test, conducted by the High Court.”

4.1.1. The provisions contained in Rule 7A of the Rules of 1970,as substituted by the notification dated 27.10.2009 and amended bynotification dated 22.12.2011 could also be noticed as under:- “7A. Selection for Promotion on the basis of merit andsuitability.- Recruitment by promotion under clause (a) of sub-rule (1) of Rule 7 above shall be made by selection on the basis ofmerit-cum-seniority.”

4.1.2. The matters relating to appointment, probation andconfirmation are provided in Rules 12 to 15 in Part IV of the Rules of1970, which are as follows:–

“12. (1) Persons appointed to the service at the initial recruitmentshall stand confirmed with effect from the date of appointment.

(2) All other candidates on appointment to permanent post shallbe on probation for a period of two years.

EXPLANATION: - The period during which an officer holds atemporary post will be counted towards probation but he will beconfirmed only when a permanent post is available.

13. All persons appointed’ to the service on probation shall beconfirmed at the end of the said period of two years.

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AProvided that the Administrator may, on the recommendationof the High Court, extend the period of probation, but in no caseshall the period of probation extend beyond the period of threeyears.

14. The services of a person appointed on probation are liable toBbe terminated without assigning any reason.

15. After successful completion of the period of probation theofficer shall be confirmed in the service by the Administrator inconsultation with the High Court .and the same shall be notified inthe Delhi Gazette.”

C4.1.3. In Part VI of the Rules of 1970, the provisions regardingpay and allowances have been made; and these provisions also specifythe method of assessment for granting Selection Grade and Super TimeScale. Rules 18 to 20 in this Part VI read as under[5]: –

“18. The pay scales of the Service shall be as follows:

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1. District Judges Entry level Time Scale Rs,16750-(Addl. District Judges) 400-19150-450-20500 2.Selection Grade [limited to 25% of cadre Rs,18750-posts of District Judges Entry level Time 400-19150-Scale (Additional District Judges) and will 45021850-be given to those having not less than five 500-22850 Eyears of continuous service in the cadre on assessment of merit-cum-seniority]3.District Judges (Super time scale) (This Rs,22850-scale would also be available to 10% of the 500-24850 cadre strength of District Judges, and would be given to those who have put in not less than three years of continuous Fservice in selection grade on assessment of merit-cum-seniority)

19. The initial pay of a direct recruit shall be the initial pay in thetime scale mentioned in rule 18.

Provided that the Administrator may, on the recommendationGof the High Court, give advance increments to suitable candidatesappointed to the service.

H5 Rule 18 came to be substituted by way of the notification dated 22.10.2008.

20. The pay of a promoted officer shall be fixed in the aforesaidtime scale in accordance with the financial rules, regulations, orders,or directions, applicable from time to time, to members of thelAS.”

4.1.4. We may also take note of Rule 26 in Part VII of the Rulesof 1970 which reads as under: –

“26. Direct recruits will have to produce before appointment acertificate of physical fitness in accordance with the standardsprescribed for the lAS.”

4.1.5. Rule 27 of the Rules of 1970, providing for residuary matters,that had been questioned by the appellant as being ultra vires, reads asunder: –

“27. RESIDUARY MATTERS:- In respect of all such mattersregarding the conditions of service for which no provision orinsufficient provision has been made in these rules, the rules,directions or orders for the time being in force, and applicable toofficers of comparable status in the Indian Administrative Serviceand serving in connection with the affairs of the Union of Indiashall regulate the conditions of such service.”

5. Having taken note of the rules that are directly relevant for thecase at hand as also the rules that may have some bearing on the issuesraised, we may now refer to the Full Court resolutions which form thesubject matter of this litigation.

5.1. In its Full Court meeting dated 28.04.2009, the High Courtadopted a resolution to the effect that, for the purpose of being selected/promoted as District and Sessions Judge, a candidate of Higher JudicialService ought to fulfil the criteria of possessing at least two ‘A’ (verygood) and three ‘B+’ (good) in the ACR gradings for the preceding fiveyears from the date of consideration for such appointment. This FullCourt Resolution dated 28.04.2009 reads as under:- “Discussed. It was resolved as under:-

(i) The following shall be adopted as the zone of consideration forselection of officers for appointment as District Judges:- A

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In the case of Sessions Judge, the zone of consideration would beCrestricted to officers already appointed as District Judges includingon proforma basis.

(ii) The officers who would be, or likely to be, in the zone ofconsideration for appointment/selection to the post of District Judgein a particular year shall be under the control of the Committee ofDInspecting Judges headed by Hon’ble the Chief Justice in thepreceding year and in the year in question.

(iii) For evaluation of such officers, as are mentioned in thepreceding clause, detailed remarks shall be recorded in the ACRsby the Committee mentioned above.

E(iv) For evaluation of the officers within the zone of considerationfor “selection by merit”, the following criteria shall be taken intoaccount:- (a) ACR grading for the last 5 years in which the gradings for atleast 2 years (including the 5[th] year) must be minimum “A” (VeryFGood), the officer having secured in the remaining 3 years no lessthan “B+” (Good) grading. However, in the case of SC/ST officers,this criteria shall be relaxed so as to require minimum “B+” (Good)grading in each of the 5 years.

(b) Vigilance report.

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(c) Disposal figures for the last 5 years.

(d) Administrative capabilities.

(e) General reputation for honesty & integrity and conduct.”

5.2. However, the prescription aforesaid was modified by anotherHFull Court resolution dated 15.01.2010 to the effect that for being

selected/promoted as District and Sessions Judge, a candidate of HigherJudicial Service ought to possess the minimum ‘A’ (very good) gradingin ACRs of each of the five years under consideration. It had been thecase of the respondent High Court that such criteria were adopted asbeing equivalent to the revised promotion criteria in the IndianAdministrative Services[6]. The relevant part of the said resolution dated15.01.2010 reads as under:- “(a) The clause regarding relaxation in ACR gradings for SC/STofficers is deleted.

(b) The criteria in para 9(iv) (a) is modified so as to require ACRgradings for each of the five years under consideration to beminimum ‘A’ (Very Good) for all categories.”

5.3. As against the aforesaid resolution dated 15.01.2010, the HighCourt received certain representations, including those from Delhi HigherJudicial Services Association as also from Delhi Judicial ServicesAssociation. These representations were considered by the Full Courtof the High Court in its meeting held on 06.07.2010 wherein it wasresolved that a Committee be constituted by the Chief Justice to lookinto the issue of desirability of change of criteria for appointment to thepost of District Judge. Pursuant to this resolution, Hon’ble the ChiefJustice of the High Court, by his order dated 27.08.2010, constituted acommittee comprising of four Hon’ble Judges. This Committee, in itsreport dated 08.10.2010, recommended for implementation of the revisedcriteria in a phased manner as under:- “We find that the post of District Judge is to be manned by officersof Delhi Higher Judicial Service in Super Time Scale of Rs.22850-24850 (pre-revised). Having regard to the revised guidelines ascirculated vide Govt. of India, DoPT O.M. No. 22011/3/2007-Estt(D) dated 18[th] February 2008 wherein it has been mentionedthat the DPC may ensure that for promotion to the scale ofRs.18,400-22,400 (pre-revised) and above, the prescribedbenchmark of ‘Very Good’ is invariably met in all ACRs of fiveyears under consideration, we are of the opinion that the existingcriteria for appointment to the post of District Judge requiringACR gradings for each of the five years under consideration tobe minimum ‘A’ ‘Very Good) for all categories, should be 6 ‘IAS’ for short AB

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Amaintained. However, since the criteria of “at least two ACRgradings of ‘A’ (Very Good) and remaining three ACR gradingsof ‘B +’ (Good)” fixed on 28[th] April, 2009 was changed to “ACRgradings for each of the five years to be minimum ‘A’ (Very Good)”on 15[th] January 2010, we are of the opinion that the implementationof the said criteria should be in phased manner as under:-B

(i) At least two ACR gradings of ‘A’ (Very Good) and remainingthree ACR gradings of ‘B+’ (Good) out of the ACR gradingsfor the last 5 years under consideration (2004-2008) for theyear 2009; C(ii) At least three ACR gradings of ‘A’ (Very Good) and remainingtwo ACR gradings of ‘B+’ (Good) out of the ACR gradingsfor the last 5 years under consideration (2005-2009) for theyear 2010;

(iii) At least four ACR gradings of ‘A’ (Very Good) and remainingDone ACR grading of ‘B+’ (Good) out of the ACR gradings forthe last 5 years under consideration (2006-2010) for the year2011; and

(iv) ACR grading for each of the five years to be minimum ‘A’(Very Good) for the last 5 years under consideration (2007-E2011) for the year 2012 and onwards.

We recommend that the cases for appointment to the post ofDistrict Judge be considered/reviewed applying the aforesaidcriteria as proposed.”

5.3.1. The aforementioned recommendations of the CommitteeFwere accepted by the Full Court in its meeting held on 27.01.2011.

5.4. In the manner aforesaid, the respondent High Court took thedecision to implement the revised criteria envisaged by the aforesaidresolution dated 15.01.2010 in a phased manner; and the requirementscame to be provided that for appointment to the post of District andGSessions Judge, a candidate should, in the five years preceding the baseyear, carry the ACR gradings as follows:

(i) for the year 2009, at least two ‘A’ (very good) and the remainingthree ‘B+’ (good);

(ii) for the year 2010, at least three ‘A’ (very good) and theHremaining two ‘B+’ (good);

(iii) for the year 2011, at least four ‘A’ (very good) and the remainingone ‘B+’ (good); and

(iv) for the year 2012 and onwards, a minimum of five ‘A’ (verygood).

5.5. From the material placed on record by the respondent No. 1with an application (IA No. 134092 of 2019), it appears further that theAdministrative and General Supervision Committee of the High Court,in its meeting held on 13.09.2013, resolved, inter alia, that the post ofPrincipal Judge, Family Court being equivalent to that of District andSessions Judge, the same criteria be also adopted therefor. This resolutionwas duly given effect to in the Full Court meeting by circulation dated28.01.2014 as also in the subsequent Full Court resolutions.

5.6. With reference to the grievance of the appellant against denialof promotion to the post of District and Sessions Judge or equivalent, wemay also take note of a few of the relevant subsequent Full Courtresolutions, that have been placed on record by the respondent No. 1with the said application, IA No. 134092 of 2019.

5.6.1. It is noticed that for the purpose of the Full Court meetingby circulation dated 09.01.2015, the position obtainable in the wake ofthe aforesaid three resolutions dated 28.04.2009, 15.01.2010 and27.01.2011, was detailed out in the note prepared by the registry of theHigh Court. Thereafter, the Full Court proceeded to adopt the resolutionfor appointment against the vacancies that had arisen to the posts ofDistrict and Sessions Judge and Principal Judge, Family Court for variousreasons, including those of elevation of some of the incumbents to theHigh Court. Noticeably, the cases of all the persons falling in the zone ofconsideration were considered, including that of the appellant; and whilemaking recommendations for appointment, some of the incumbents,including the appellant, were not found fit for such appointment on thebasis of the criteria laid down in the aforesaid resolutions dated 28.04.2009,15.01.2010 and 27.01.2011. The relevant part of this resolution dated09.01.2015 reads as under: –

“(i) Mr. Yogesh Khanna, Ms. Ravinder Kaur and Mr. TalwantSingh, already District Judges under next below rule berecommended for appointment as District Judge on regular basisw.e.f. 15.12.2014 against three vacancies of District Judges whichhave arisen w.e.f. 15.12.2014 consequent upon elevation of A

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Hon’ble Mr. Justice P.S. Teji, Hon’ble Mr. Justice I.S. Mehta andHon’ble Mr. Justice R. K. Gauba as Additional Judges of thisCourt on 15.12.2014.

Against the vacancy fallen vacant consequent uponelevation of Hon’ble Ms. Justice Sangita Dhingra Sehgal asAdditional Judges of this Court, the names of officers in the zoneof consideration were considered and it was decided that on thecriteria of ‘selection by merit’ as laid down by the Full Courtdecision dated 28.4.2009 and modified by Full Court decisionsdated 15.1.2010 and 27.1.2011 , the name of Mr. T.R. Naval,DHJS be recommended for appointment to the post of DistrictJudge on regular basis with effect from the date he takes over.

Against the consequential vacancies on account of DistrictJudges being on deputation, the names of officers in the zone ofconsideration were considered and it was decided that on thecriteria of ‘selection by merit’ as laid down by the Full Courtdecision dated 28.4.2009 and modified by Full Court decisionsdated 15.1.2010 and 27.1.2011, the names of Mr. Rakesh Sidhartha,Mr. Amar Nath, Mr. Pradeep Chadha and Mr. Brijesh Sethi, DHJSbe recommended for appointment to the post of District Judgeunder next below rule with effect from the date they take over.Since Ms. Asha Menon, DHJS is on deputation as MemberSecretary, NALSA, her name be also recommended to the Govt.of NCT of Delhi for appointment as District Judge on proformabasis with effect from the date her juniors take over.

Mr. S.C. Malik, Mr. R. P.S. Teji, Mr. S.C. Rajan, Mr.Mahavir Singhal, Mr. D.K. Malhotra, Mr. Sukhdev Singh, Mr.Rajnish Bhatnagar and Mr. Narender Kumar Sharma, DHJS werenot found fit for appointment to the post of District Judge on thecriteria of ‘selection by merit’ as laid down by the Full Courtdecision dated 28.4.2009 and modified by Full Court decisionsdated 15.1.2010 and 27.1.2011.

The recommendation for appointment of Mr. Brijesh Sethi,DHJS to the post of District Judge under next below rule be madeto the Administrator, NCT of Delhi on receipt of notification ofappointment of Ms. Kiran Nath, DHJS as Principal Secretary(Law, Justice & Legislative Affairs), Govt. of NCT of Delhi.

On receipt of notification of appointment as District Judges,their postings be made as per Annexure’X’.

(ii) The name of Mr. Girish Kathpalia, already PrincipalJudge, Family Courts under next below rule be recommended forappointment as Principal Judge, Family Courts on regular basiswith effect from the date Shri T.R. Naval relinquishes the chargeof the post of Principal Judge, Family Courts, Delhi.

Against the consequential vacancies of Principal Judge,Family Courts, the names of officers in the zone of considerationwere considered and on the criteria of ‘selection by merit’ as laiddown by the Full Court decision dated 28.4.2009 and modified byFull Court decisions dated 15.1.2010 and 27.1.2011, the names ofMs. Poonam A. Bamba, Mr. A.S. Jayachandra, Mr. DeepakJagotra, Mr. Braj Raj Kedia and Mr. Yashwant Kumar, DHJS berecommended for appointment to the post of Principal Judge,Family Courts, Delhi for the districts mentioned against their nameson regular basis with effect from the date they take over:- Mr. S.C. Malik Mr. R.P.S. Teji, Mr. S.C. Rajan, Mr. MahavirSinghal, Mr. D.K. Malhotra, Mr. Sukhdev Singh, Mr. RajneeshBhatnagar, Mr. Narender Kumar Sharma, Mr. J.P.S. Malik, Mr.K.S. Mohi, Ms. Sujata Kohli, Mr. Rakesh Tiwari, Mr. ChandraGupta and Mr. Narottam Kaushal were not found fit forappointment to the post of Principal Judge, Family Courts on thecriteria of ‘selection by merit’ as laid down by the Full Courtdecision dated 28.4.2009 and modified by Full Court decisionsdated 15.1.2010 and 27.1.2011.

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SUPREME COURT REPORTS

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The recommendations for appointment of Mr. YashwantKumar DHJS to the post of Principal Judge, Family Court, West,THC under next below rule be made to the Administrator, NCTof Delhi on receipt of notification of appointment of Mr. BrijeshSethi, DHJS as District Judge under next below rule.”

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5.6.2. It further appears that in the subsequent resolutions dated16.04.2015, 19.09.2015 and 28.11.2016, various recommendations weremade by the Full Court for appointment to the post of District and SessionsJudge and Principal Judge, Family Court. In these resolutions, the casesof all the persons falling in the zone of consideration (including theCappellant) were considered but, while making recommendations, someof the incumbents, including the appellant, were not found fit for suchappointment on the basis of the criteria laid down in the aforesaidresolutions dated 28.04.2009, 15.01.2010 and 27.01.2011. For avoidingunnecessary repetition of similar aspects, all such resolutions need notDbe reproduced but, for ready reference, we may extract the relevantpart of the last of such resolution dated 28.11.2016 as under: –

“….Against the consequential vacancy on account of Mr. GirishKathpalia being on deputation, the names of officers in the zoneof consideration were considered and it was decided that on theEcriteria of ‘selection by merit’ as laid down by the Full Courtdecision dated 28.4.009 and modified by Full Court decisions dated15.1.2010 and 27.1.2011, the name of Mr. A.S.Jayachandra berecommended for appointment to the post of District Judge undernext below rule with effect from the date he takes over.

FMr. R.P.S. Teji, Mr.Mahavir Singhal and Ms. Sujata Kohli,DHJS were not found fit for appointment to the post of DistrictJudge on the criteria of ‘selection by merit’ as laid down by theFull Court decision dated 28.4.2009 and modified by Full Courtdecisions dated 15.1.2010 and 27.1.2011.”

GTHE FACTS RELATING TO THE APPELLANT ANDHER GRIEVANCE

6. Having taken note of the relevant rules and the relevantresolutions, the basic facts relating to the appellant and the principalaspects of her grievance could now be recounted, in brief, as follows:H

6.1. The appellant, having successfully competed in the writtenexamination and interview, secured third position in her batch for directselection to the cadre of DHJS and was duly appointed on 27.11.2002.Later on, her position in the batch became second with resignation ofthe candidate at second position. Thereafter, by virtue of the notificationdated 19.12.2005, the appellant was appointed as Additional District andSessions Judge (Permanent) w.e.f. 25.11.2004. It is not in dispute thatthe service conditions of the appellant are governed by the said Rules of1970.

6.2. It is also not in dispute that for the period between May 2011to January 2014, the appellant was assigned cases under the HinduMarriage Act and other relatable matrimonial matters, during whichperiod, she disposed of approximately 2589 cases, which included 478amicable settlements.

6.3. The ACR gradings of the appellant for the relevant years hadbeen that she was awarded ‘B+’ (good) in the years 2010, 2011, 2012and 2013; and she was awarded ‘A’ (very good) in the year 2014.

6.4. It has been the case of the appellant that she became awareof the impugned resolutions only when the judicial officers appointed inthe year 2002 were considered for promotion to the post of District andSessions Judge/Principal Judge, Family Court in the month of November2014. The appellant would submit that immediately after noticing theprejudicial requirements of the impugned resolutions, she addressed arepresentation dated 12.11.2014 to the Chief Justice and the companionjudges of the High Court of Delhi for reconsideration of the criteria laiddown in the impugned resolutions. It is the contention of the appellant,that no reply was offered on her representation but, on 02.12.2014, shewas granted Super Time Scale by the High Court by way of notificationNo. 27/DHC/Gaz/ST/VI.D.10/2014.

6.5. On 13.01.2015, the appellant made another representation tothe Chief Justice of the High Court of Delhi apprising about her pendingrepresentation and prayed that the proposed appointments may be kepton hold.

6.6. The grievance of the appellant had been that despite herrepresentations, several appointments were made to the post of PrincipalJudge, Family Court from the candidates of her batch who were juniorin rank to herself as also from the candidates of later batches. Aggrieved AB

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Athat her representations were not considered to review the criteria inquestion as also by promotion of the incumbents junior to herself, appellantpreferred the writ petition before the High Court while seeking thefollowing reliefs:- “a) quashing the notifications No. F.6/15/2012-JudL/FC/Supt1aw/B54-57 dated 15.1.2015 and No. F.6/2/2015JudL/Suptlaw/109-112dated 22.1.2015.

b) quashing the full Court resolutions dated 28.4.2009, 15.1.2010and 27.1.2011 adopted by the Hon’ble High Court of Delhi, withrespect to evolving the requirement of Grade A (if any), adoptedCon the said dates or at any other time for recommendation forappointment/ promotion to the post of District Judge/PrincipalJudge, Family Court.

c) Quashing the Rule 27 of Delhi Hiher Judicial Service Rules,1970 and direct the framing of specific Rules for the promotion/Dappointment to the post of District and Sessions Judge/PrincipalJudge, Family Court.

(ii) Direct the Respondent No. 1 to consider the petitioner forrecommendation for the appointment/promotion to the Post ofPrincipal Judge Family Court/ District and Sessions Judge as perher entitlement.E(iii) pass such other orders or directions as deemed fit and properin the facts and circumstances of the case.”

SUBMISSIONS BEFORE THE HIGH COURT

7. Seeking the reliefs aforesaid, the appellant submitted beforeFthe High Court, inter alia, that prior to the year 2009, several candidateshaving only ‘B+’ or even ‘B’ grade were promoted as District and SessionsJudge and, when the batch of the year 2002 was being considered forappointment to the post of District Judge in the year 2014, she came toknow of the requirements envisaged by the impugned resolutions. TheGappellant contended that failure in communication of the mandatedconditions had jeopardised her promotional prospects.

7.1. It was also contended that the impugned resolutions wereviolative of Article 16 of the Constitution of India, for being opposed tothe reasonable expectations for selection and vertical promotion, in termsHof the service conditions. The appellant further submitted that application

of the same criteria to judges as applicable to those in the IndianAdministrative Service was against the very essence of the decision ofthis Court in All India Judges Association v. Union of India: (1993)4 SCC 288, where it was held that there cannot be any parity betweenthe judges and the administrative officers.

7.2. The appellant further referred to the decision of this Court inDev Dutt v. Union of India: (2008) 8 SCC 725 and submitted thatgranting better grading (‘A’) to a set of junior officers and giving lowergrading (‘B+’) to senior, tantamount to adverse ACR for the senior andhence, the High Court establishment ought to have disclosed not merelythe concerned officer’s grading, but also those of her juniors, so that shecould have taken recourse of fair and effective redress, by pointing outher strengths, which might well have been overlooked by the appraisingauthorities. The appellant also argued that though the ACR grades weremade known to the judicial officers, yet the pointwise grades were notmade known to them, which was required to be provided so as to assistthe concerned officer to grow and also to appeal against, if the samewere found to be arbitrary.

8. While opposing the submissions of the appellant, the respondentHigh Court establishment submitted, inter alia, that after the impugnedresolutions dated 28.04.2009 and 15.01.2010, the establishment receivedvarious representations which were considered in the meeting held on06.07.2010 and, pursuant to the resolution adopted therein, a Committeewas constituted to deal with the issue concerning the criteria forappointment to the post of District Judge. The respondent submitted thatin its report dated 08.10.2010, the Committee recommended formaintaining the criteria of possessing “very good” grading in five yearsimmediately preceding the year of appointment but suggested that thesame be implemented in a phased manner; and while accepting suchrecommendations, the resolution dated 27.01.2011 came to adopted bythe Full Court (as noticed hereinbefore). It was submitted that the HighCourt, being the best judge to assess as to which judicial officer wassuited to the work, was entitled to fix the criteria for the appointment inquestion; and it was denied that such criteria had adversely affected theprogression of Additional District Judges.

8.1. It was also contended by the respondent that the appellanthad failed to show any flaw or unreasonableness in the criteria as laiddown; that there was no requirement for publication of the promotional A

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Acriteria, as it did not require obtaining of any additional qualification orlikewise; that every employee was expected to work to the best of hisability and professional competence; and that raising a complaint againstthe promotional criteria was meaningless and unwarranted. Therespondent also pointed out that for awarding ACR gradings, three judgesof the High Court were assigned the task of supervising the functioningBof the judicial officers and verification of the information drawn up quathem; and the respective grades were made known only to the individualconcerned.

8.2. The respondent establishment also defended Rule 27 of theRules of 1970 with the submissions that guidelines and criteria need toCbe evolved having regard to the changing times; and as all the mattersand contingencies cannot be prescribed in the rules, discretion of thecompetent authority is reserved but without vesting any arbitrary power.

8.3. It was also pointed out on behalf of the respondentestablishment that the appellant was granted super time scale w.e.f.D01.07.2013; she made the representation on 12.11.2014 forreconsideration of the criteria in question; her representation was rejectedby the Full Court on 29.04.2015; and the decision was communicated toher on 13.05.2015.

DECISION OF THE HIGH COURT: THE IMPUGNEDEORDER

9. In its impugned judgment and order dated 21.08.2018, the HighCourt referred to the decisions of this Court in ChandramouleshwarPrasad v. Patna High Court: AIR 1970 SC 370 and State of Biharv. Bal Mukund Sah: 2000 (4) SCC 640, wherein Articles 233 andF235 of the Constitution of India were referred and primacy of the viewsof the High Court in the appointment of District Judges was highlighted.The High Court also analysed the aforementioned Full Court resolutionsand proceeded to examine the grievance of the appellant with respect toher lack of knowledge or not being aware of the criteria to be fulfilled.G9.1. The High Court did not find any merit in the argument of the G9.1. The High Court did not find any merit in the argument of thepetitioner-appellant that she was aggrieved due to non-communicationof the revised criteria while observing that before 2008-2009, there wereno criteria fixed for the purpose, which meant that the High Courtestablishment had the discretion in the matter of selection and appointmentof the District Judges, either in terms of seniority or merit. The HighH

Court observed that such “no norms” position was sought to be rectifiedby structuring the discretion with emphasis on certain threshold gradingsand such administrative criteria cannot be termed as arbitrary. Theobservations of the High Court, forming the core of its decision, could beusefully reproduced as under: –

“22. The petitioner’s grievance with respect to her lack ofknowledge or not being aware of the criteria to be fulfilled byincumbent DHJS officers, in the opinion of this court, is notjustified. Before 2008-09 there was no criteria, which meant thatthe High Court more or less had the absolute discretion to selectand appoint anyone, on the basis of seniority, or merit. This “nonorm” period was sought to be rectified by structuring thediscretion, and insisting that the concerned officers ought to scorecertain threshold gradings in their ACRs to be eligible forconsideration. Such administrative criteria, per se cannot becharacterized as arbitrary, given the prevailing “no norm” or “norule” period. Though not a matter of record, it is a fact that aroundthat time, the existing one District court’s territorial jurisdictionfor the whole of Delhi was re-organized; nine District Courts werecreated, with resultant distribution of jurisdiction. That has nowbeen further re-organized. The consequent need to fill nine postswas felt. The committee, which reported to the Full Court on14.12.2009, took into account the identity of pay scales of DistrictJudges and equivalent grade All India Service (IAS) officers andfelt that since the former had to cross a threshold bar of five“Very good” ACR gradings for five years, preceding the date ofconsideration (for higher positions), a similar approach could beadopted. As was highlighted by Chandramouleshwar Prasad“the High Court is the body which is intimately familiar withthe efficiency and quality of officers who are fit to be promotedas District Judges. The High Court alone knows their meritsas also demerits.” Likewise, Bal Mukund Shah (supra)emphasized the same theme:

“..rules made by the Governor in consultation with the HighCourt in case of recruitment at grass-root level and therecommendation of the High Court for appointments at theapex level of the District Judiciary under Article 233 remainthe sole repository of power to effect such recruitments A

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and appointments. It is easy to visualise that if suitableand competent candidates are not recruited at both theselevels, the out turn of the judicial product would not be ofthat high level which is expected of judicial officers so asto meet the expectations of suffering humanity representingclass of litigants who come for redressal of their legalgrievances at the hands of competent, impartial andobjective Judiciary.”

23. Having regard to these imperatives, the petitioner’s grievancethat no norm should have been evolved and implemented withoutprior notice, is insubstantial. A judicial officer – like any otherpublic employee or official joins the service, hoping to make adifference, in terms of dealing with the workload, quality of output(i.e. the judgments delivered) and also the cases assigned to her.In a sense, service in the judicial department (though a publicservice) is a mission, given the solemn nature of judging. If this isthe assumption on which every judge, at every level is appointedto the judicial system, the argument that if one is made aware thata higher threshold of performance is expected, she or he wouldwork better (or have worked better) cannot be countenanced. Alljudges – District Judges being no exception – are expected toperform at their optimum levels, given the exploding dockets, which they have to handle. The primary role of anyone, when appointedas a judge is to perform as a judge, to the best of her ability andcompetence. An incumbent cannot be heard to say that her judicialwork was not up to the mark, because she was involved in someother duties or more importantly, she was not aware that best performance would result in selection as District Judge. Every-functionary including judges shoulder those extra duties to varyingdegrees, at different points of time. Nor do those duties define therole of any incumbent in a judicial service or system. If seen fromthis perspective, the work performed by every judicial officer iswhat is graded in the ACR. Therefore, to say that had anyincumbent known that the highest or a better grading is essentialshe or he would have performed better is no grievance. Theperformance of every judge is expected to be her or his best, orwhat she or he was capable of, for the relevant period. Therefore,the nuancing of discretion (to appoint) from an absolute one, toone based on performance and merit, of DHJS officers, is neither

arbitrary nor unreasonable. One more reason to reject thepetitioner’s argument in this regard is that the review which tookplace through the Full Court resolution of 27 January 2011, wasdue to representation of DHJS officers that introduction of thefive ACR norm was abrupt. Therefore, there was a generalawareness of this criteria, (put in place through the earlierresolution of 15-01-2010) which led to some disquiet andrepresentation. The criteria which now stands challenged wastherefore evolved as a measure to relax the rigors of theirimmediate application. It has been applied in the case of manyinstances of appointment; some of those appointees have sinceeven retired; some were appointed as judges of this court. Evenfrom that position, some appointees have retired. Therefore, it istoo late in the day to say that the criteria should be set aside onthe narrow ground that it was not made known. As members of ajudicial cadre, all officers were aware of its existence. This groundtherefore, is rejected.”

9.2. The grievance of the appellant about absence of anyinformation of the gradings of juniors was also found baseless. The HighCourt referred to the law declared by this Court as regards the necessityof communication of every ACR grading, particularly that in the case ofDev Dutt (supra) and observed as under:- “The petitioner’s grievance however, is that the better or highergradings given to her colleagues, particularly those junior to herwere not known and that she could not articulate her objections tobetter her gradings, at the relevant time. This court is of the opinionthat the method of appraisal of judicial officers is such that gradingsgiven to each individual are treated as confidential. In such a system,it would not be permissible to publicize the gradings of all judicialofficers, so that each one has information or knowledge of notonly what she is graded, but also what others are graded. Thisgrievance is therefore held to be without substance.”

9.3. In the manner aforesaid, the High Court proceeded to rejectthe contentions of the appellant. However, before concluding, the HighCourt observed that though the existing system of grading of the judicialofficers by the committees comprising of three High Court judges wasmerited but there being no uniform set of rules or guidelines for theappraisal committees to follow, it was in the fitness of things that to AB

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“29. In view of the above discussion, the court holds that the FullCourt resolutions of 28.4.2009 (modified on 15.01. 2010) and thelater resolution 27.01.2011, inasmuch as they prescribe that forappointment to the post of District Judge, the concerned judicialofficer should have been graded A in the preceding five years, isCnot arbitrary; the challenge to Rule 27 too has to fail. The petitionersgrievance that she was arbitrarily denied knowledge of the ACRgradings of other officers, is also without merit. This court herebyrequires that the directions in the preceding para of this judgmentwith respect to formulation of criteria for uniform grading of judicialDofficers, be suitably incorporated in the form of guidelines, forfuture implementation; the Registrar General shall take appropriateaction to place the papers before the Hon’ble Chief Justice, inthis regard. The writ petition is disposed of in the above termswithout order on costs.”

ERIVAL CONTENTIONS

10. The substance of the principal submissions made on behalf ofthe appellant in challenge to the order so passed by the High Court hasbeen as follows:

10.1. The learned senior counsel for the appellant has arguedFthat right to be considered for promotion is a fundamental right and theexercise of this fundamental right requires that an employee is given afree, fair and reasonable opportunity to be considered for such promotion.The main plank of the submissions of learned counsel for the appellanthas been that only in the year 2009, the respondent establishment providedGfor the criteria on which a candidate was to be considered for promotionas a District and Sessions Judge/Principal Judge, Family Court butretrospective application of such criteria on the individuals like theappellant negates their fundamental right to be duly considered forpromotion.

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10.2. The learned senior counsel has emphatically argued thatthe said change in criteria was never communicated to the appellant norwas notified so as to make the candidate likely to be affected by suchchange aware about the requirements. According to the learned counsel,the so-called “general awareness” and “deemed knowledge” does notestablish that all concerned were aware of the newly incorporated criteriaand the lack of communication is in violation of principle of natural justice.

10.3. The learned senior counsel would submit that when thechanges are made retrospectively and the right to promotion is denied,the procedure cannot be said to be just and fair. The learned counsel hasargued that any change in the method of promotion ought to be prospectivein its application and ought to be specifically communicated to thecandidate concerned. While relying on the decisions in State of U.P. v.Mahesh Narain : (2013) 4 SCC 169 and Nirmal ChandraBhattachargee & Ors. v. Union of India & Ors.: 1991 Supp (2)SCC 363, the learned counsel has contended that in the similar factsituation, this Court has held that the change of service rules cannot bemade to the prejudice of an employee who was in service prior to suchchange. According to the learned counsel, creation of new criteria forpromotion amounts to a change in service rules and such an alterationcannot be given retrospective effect if it operates to the prejudice of theemployee who was in service before such change and this cannot bedone even in exercise of the so-called residuary powers.

10.4. The learned senior counsel would further submit that evenwhen changes of reasonable nature can be made in the matter ofpromotion, the changes themselves should be made only in a reasonablemanner with due notice to the people likely to be affected, which havingnot been done in the present case, the impugned operation of changedcriteria cannot be countenanced. The learned counsel contended thatwhen the petitioner joined the service and even thereafter the existingcriteria for promotion to the post of District Judge as also for considerationto be elevated to the High Court had consistently been of the candidatehaving ‘B+’ grade and the appellant fulfilling such criteria, ought to havebeen promoted to the cadre of District Judge.

10.5. The learned senior counsel has further submitted that in thecase of Dev Dutt (supra), this Court has specifically held thatnomenclature is not important but the effect of an entry in the ACRwould determine if it is an adverse one or not. The learned counsel AB

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Awould submit that in the present case, though the appellant was givenher ACR gradings but she was unaware that after 2009, such gradingswould be operating adverse against her pursuant to the new criteria andthe effect of want of communication of change in service conditions andrules has operated detrimental to her candidature for promotion.

B10.6. The learned senior counsel has further submitted that evenas on date, no objective criteria exists for evaluating a judicial officerand marking of the grading is only on the subjective satisfaction of theauthority concerned. The learned counsel would submit that while onlythe overall ACR gradings are communicated but the point-wise gradingis not communicated, which hinders the ability of a judicial officer toCappreciate any weak point or to effectively appeal against any unfair oradverse grading. With reference to the last part of the impugned order,learned counsel has contended that admittedly, no uniform system existedfor evaluating a judicial officer and, in the given scenario, any gradingbased on unknown criteria could only be treated as arbitrary and theDpromotion criteria based thereon cannot be approved.11. The counter-submissions on behalf of the contesting respondentcould also be briefly taken note of as follows:

11.1. The learned counsel for respondent No. 1 has submittedthat the posts of District and Sessions Judge and the Principal Judge,EFamily Court are selection posts to which, appointments are to be madeon the basis of merit-cum-seniority and therefore, the appellant cannotclaim appointment thereto as a matter of right. The learned counsel hasreferred to the facts that prior to the year 2008, there was only onesanctioned post of District Judge under the Delhi Higher Judicial ServiceFRules, 1970 but later on, the National Capital Territory of Delhi wasbifurcated into 9 Civil Districts with effect from 01.11.2008; and thatpursuant to such bifurcation, the strength of District and Sessions Judgeswas increased to 11. The learned counsel has referred to theaforementioned resolutions by the Full Court with the submissions thatprior to the year 2009, there was no criteria laid down by the High CourtGfor selecting candidates for appointment to the post of District Judgebut, given the requirement of laying down standards for such selection,the said resolutions were adopted and implemented while keeping inview Rule 27 of the Rules of 1970 and the norms prescribed by theGovernment of India under OM dated 15.02.2008 for the posts havingHthe pay scale equivalent to that of a District Judge.

11.2. With reference to Article 233(1) of the Constitution of India,the learned counsel would submit that the power to appoint District Judgeslies strictly with the High Court and it was in exercise of such powersthat the High Court laid down the criteria in question for selection of themost meritorious among the eligible candidates. While reiterating thesubmissions that appointment to the posts in question is purely on merit-cum–security basis, the learned counsel has argued, with reference toseveral of the decisions, including those in Central Council for Researchin Ayurveda & Siddha and Anr. v. Dr. K. Santhakumari: (2001) 5SCC 60 and Haryana State Electronics Development CorporationLimited and Ors. v. Seema Sharma and Ors.: (2009) 7 SCC 311,that in appointments on the basis of merit-cum-seniority, the merit acquiresprimacy and seniority becomes relevant only when all the aspects ofmerit qualifications are equal. The learned counsel has contended thatthe appellant was also duly considered for such appointment but onlythose candidates were appointed who were more meritorious than her,like the respondent Nos. 3 to 10.

11.3. As regards the question of knowledge of the appellantregarding the criteria in question, the learned counsel has argued thatthe criteria adopted by the High Court had been the same as prescribedby the Government of India in OM dated 18.02.2008 and, by virtue ofRule 27 of the Rules of 1970, the appellant shall be deemed to be havingknowledge of the same; and even her contemporaneous colleagues hadconducted themselves in accordance with the requirements of suchcriteria. The learned counsel has also referred to the representationsmade by the Associations of the officers and has contended that it cannotbe suggested by the appellant that the concerned judicial officers werenot having knowledge of adoption of the criteria mentioned in the impugnedresolutions.

11.4. The learned counsel has distinguished the decision of thisCourt in the case of Mahesh Narain (supra) with the submissions thattherein, this Court has held that an employee cannot be precluded fromenjoying the benefit of a provision for promotion which was amendedafter he became eligible for being promoted. The learned counsel wouldsubmit that in the present case, the High Court did not change the eligibilitycriteria for appointment of District Judge and by the impugned resolutions,merely evolved a selection criteria for evaluation of eligible candidates;and in any case, the appellant entered the zone of consideration only in AB

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Athe year 2014-15 whereas, the said criteria in question had beenimplemented for appointments made from the year 2012 onwards.Similarly, the learned counsel has distinguished the decision in NirmalChandra (supra) with the submissions that the fact situation thereinwas entirely different where due to restructuring, Class D employeeswere placed in Class C without change of their status and they wereBsought to be denied the benefit of promotion to a post in Class C forwhich, this Court held that such promotion could not be denied to thepersons who became eligible for promotion prior to the restructuring;and the impact of restructuring could not prejudice the employees.

11.5. As regards the decision in Dev Dutt (supra), the learnedCcounsel has contended that the reliance thereupon was entirely misplacedbecause the appellant was admittedly informed of all her ACRs; and sherather accepted most of her ACRs for the period 2010 to 2014 withoutany protest and did not pursue any case for upgradation of the same;and it is evident that she was never dissatisfied with her grading in theDrelevant ACRs as ‘B+’.

11.6. Put in a nutshell, the submissions on behalf of the contestingrespondent have been that the appellant is not entitled to any reliefbecause all the candidates recommended for promotion had better ACRgradings than the appellant.E12. We have bestowed anxious consideration to the rivalsubmissions and have perused the material placed on record withreference to the law applicable.

13. In view of the submissions made, two points mainly arise fordetermination in this case: (1) As to whether the appellant has beenFdenied fair and reasonable consideration of her case for promotion tothe posts of District and Sessions Judge/ Principal Judge, Family Courtby operation of the criteria laid down in the impugned resolutions; and(2) As to whether the appellant suffered any prejudice in the matter ofACR gradings?GRE: POINT NUMBER (1)

14. As noticed, the principal grievance of the appellant is that shehas been denied fair and reasonable consideration of her case forpromotion. It has been contended on behalf of the appellant that therespondent High Court evolved new criteria for promotion to the postsHof District and Sessions Judge and Principal Judge, Family Court by way of the impugned resolutions but the same was not notified and shewas not made aware of the new criteria that required ‘A’ gradings in theACRs of five years preceding the base year of consideration. It has alsobeen contended on behalf of the appellant that the respondent High Courthad acted illegally and unfairly in putting the new criteria in operationwith retrospective effect that has caused her serious prejudice. Anancillary aspect has also been put into contention that the High Courthad not been right in fixing the criteria for promotion of the judicial officerson the basis of the norms applicable to the executive officers whiledisregarding the law that the members of other services cannot be placedat par with the members of the judiciary.

15. In order to examine as to whether the appellant has been ableto make out a valid case of legal grievance, a brief reference to thebasic legal provisions and principles having application to the case athand shall be apposite.

15.1. It does not require any elaborate discussion to say that theright to be considered for promotion is a fundamental right of equality ofopportunity in the matter of employment. The wide variety of case-lawon the subject need not be recounted but, for ready reference, it appearsappropriate to refer to the decision in Ajit Singh and Ors. (II) v. Stateof Punjab and Ors.: (1999) 7 SCC 209 wherein a Constitution Benchof this Court reaffirmed the basics of such fundamental right and alsopointed out the silhouettes of the criteria relating to promotional avenuesin the following: –

“22. Article 14 and Article 16(1) are closely connected. Theydeal with individual rights of the person. Article 14 demands thatthe “State shall not deny to any person equality before the law orthe equal protection of the laws”. Article 16(1) issues a positivecommand that “there shall be equality of opportunity for all citizensin the matters relating to employment or appointment to any officeunder the State”. It has been held repeatedly by this Court thatSub-clause (1) of Article 16 is a facet of Article 14 and that -ittakes its roots from Article 14. The said Sub-clause particularizesthe generality in Article 14 and identifies, in a constitutional sense“equality of opportunity” in matters of employment andappointment to any office under the State. The word ‘employment’being wider, there is no dispute that it takes within its fold, theaspect of promotions to posts above the stage of initial level of A

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Arecruitment. Article 16(1) provides to every employee otherwiseeligible for promotion or who comes within the zone ofconsideration, a fundamental right to be “considered” forpromotion. Equal opportunity here means the right to be“considered” for promotion. If a person satisfies the eligibility andzone criteria but is not considered for promotion, then there willBbe a clear infraction of his fundamental right to be “considered”for promotion, which is his personal right.

23. Where promotional avenues are available, seniority becomesclosely interlinked with promotion provided such a promotion ismade after complying with the principle of equal opportunity statedCin Article 16(1). For example, if the promotion is by rule of seniority-cum-suitability’, the eligible seniors at the basic level as per seniorityfixed at that level and who are within the zone of considerationmust be first considered for promotion and be promoted if foundsuitable. In the promoted category they would have to count theirDseniority from the date of such promotion because they getpromotion through a process of equal opportunity. Similarly, if thepromotion from the basic level is by selection or merit or any ruleinvolving consideration of merit, the senior who is eligible at thebasic level has to be considered and if found meritorious incomparison with others, he will have to be promoted first. If he is Enot found so meritorious, the next in order of seniority is to beconsidered and if found eligible and more meritorious than thefirst person in the seniority list, he should be promoted.In eithercase, the person who is first promoted will normally count hisseniority from the date of such promotion. (There are minorFmodifications in various services in the matter of counting ofseniority of such promotees but in all cases the senior most personat the basic level is to be considered first and then the others inthe line of seniority). That is how right to be considered forpromotion and the ‘seniority’ attached to such promotion becomeimportant facets of the fundamental right guaranteed in ArticleG16(1).”

15.2. The criteria in question, for promotion to the post of Districtand Sessions Judge and equivalent, had been evolved and operated byHthe High Court in the purported exercise of its powers under the Rules of 1970. The fundamentals of law also remain settled that the power ofappointment, posting and promotion of District Judges vests with theGovernor of the State, but this power has to be exercised in consultationwith the High Court concerned; and this Court has laid down in nouncertain terms that in such matters, the primacy is to be given to theviews of High Court. Again, instead multiplying the authorities, sufficewould be to refer to the decision in the case of ChandramouleshwarPrasad (supra) wherein a Constitution Bench of this Court expositedthe principles underlying Article 233 of the Constitution of India[7 ]andobserved, inter alia, as under: –

“….No doubt the appointment of a person to be a District Judgerests with the Governor but he cannot make the appointment onhis own initiative and must do so in consultation with the HighCourt. The underlying idea of the Article is that the Governorshould make up his mind after there has been a deliberation withthe High Court. The High Court is the body which is intimatelyfamiliar with the efficiency and quality of officers who are fit tobe promoted as District Judges. The High Court alone knowstheir merits as also demerits. This does not mean that the Governormust accept whatever advice is given by the High Court but theArticle does require that the Governor should obtain from theHigh Court its views on the merits or demerits of persons amongwhom the choice of promotion is to be limited. If the High Courtrecommends A while the Governor is of opinion that B’s claim issuperior to A’s it is incumbent on the Governor to consult the HighCourt with regard to its proposal to appoint B and not A. If theGovernor is to appoint B without getting the views of the HighCourt about B’s claim vis-a-vis A’s Lo promotion, B’s appointmentcannot be said to be in compliance with Article 233 of theConstitution. …..

…. So far as promotion of officers to the cadre of District Judgesis concerned the High Court is best fitted to adjudge the claimsand merits of persons to be considered for promotion. TheGovernor cannot discharge his function under Article 233 if he 7 Article 233 (1) reads as under:- “233. Appointment of district judges.—(1) Appointments of persons to be,and the posting and promotion of, district judges in any State shall be made by theGovernor of the State in consultation with the High Court exercising jurisdiction inrelation to such State.”

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Amakes an appointment of a person without ascertaining the HighCourt’s views in regard thereto…………”

15.3. While keeping the aforesaid principles in view, we may nowexamine the scheme of the Rules of 1970. As noticed, two channels ofrecruitment to the posts in the cadre of District Judge have been provided:Bone by promotion from amongst the Civil Judges (Senior Division) andanother by direct recruitment from the eligible persons. As regardspromotion, the bifurcation is provided in the manner that 65% are to berecruited by way of promotion on the basis of merit–cum–seniority and10% by promotion strictly on the basis of merit through limited competitiveexamination (vide Rule 7 and 7A). Even in the matters relating to payCscales, it is noticed that granting of Selection Grade and Super TimeScale is on the assessment of merit–cum–seniority (vide Rule 18). Thematter in issue in the present appeal relates to promotion to the posts ofDistrict and Sessions Judge or Principal Judge, Family Court within thecadre of DHJS. Apparently, no separate provision is found in the RulesDof 1970 as regards such upward progression within the cadre andobviously, for such a matter, the residuary provision as contained in Rule27 comes into operation by virtue of which, the directions or orders forthe time being in force and applicable to the officers of comparablestatus in IAS would apply.

E15.3.1. At this juncture, we may observe that the appellant hadattempted to question the said Rule 27 of the Rules of 1970 as beingultra vires, particularly with reference to the decision of this Court inthe case of All India Judges Association (supra). In our view, the HighCourt has rightly rejected such a challenge to Rule 27 because thisresiduary clause in the Rules of 1970 does not appear offending the lawFdeclared by this Court in any manner. This residuary clause is not ofequating the judicial officers with the executive officers but only providesthat in regard to the matters for which no provision or insufficient provisionhas been made in the Rules of 1970, the relevant rules, directions ororders as applicable to IAS shall regulate the conditions of service of theGofficers of DHJS. A perusal of the other provisions in the Rules of 1970makes it clear that reference to the service conditions of the membersof IAS is not an anathema to these rules and, on the contrary, wherevernecessary, the applicable rules, orders or directions concerning themembers of IAS do govern the service conditions of the judicial officerstoo. For example, in the matter of pay fixation of a promoted officer, it isH

provided in Rule 20 that such pay shall be fixed in the referred timescale in accordance with the financial rules, regulations et cetera, asapplicable from time to time to the members of IAS; and as per Rule 26,the direct recruits are required to produce before appointment, a certificateof physical fitness in accordance with the standards prescribed for IAS.Such provisions, essentially meant for proper regulation of the service,by themselves, do not put the members of DHJS at par with the membersof IAS for all purposes. Moreover, as noticed, what the High Courtestablishment has provided by way of the impugned resolutions are thenorms for promotion while taking cue from the norms applicable to themembers of IAS in the equivalent pay scale. Providing for such normsdoes not in any manner stand at conflict with the principles laid down inthe case of All India Judges Association(supra). The challenge to thesaid Rule 27 has rightly been rejected by the High Court.

15.4. It would now be appropriate to take note of the principlesgoverning the exercise of promotion, particularly the norms and criteriafor promotion.

15.4.1. As noticed, in the case of Ajit Singh (supra), even whileholding that the right to be considered for promotion is a fundamentalright, the Constitution Bench pointed out the subtle distinction in theoperation of the norms of seniority on one hand and any rule requiringconsideration of merit on the other while observing, inter alia, that ‘ifthe promotion from the basic level is by selection or merit or anyrule involving consideration of merit, the senior who is eligible atthe basic level has to be considered and if found meritorious incomparison with others, he will have to be promoted first. If he isnot found so meritorious, the next in order of seniority is to beconsidered and if found eligible and more meritorious than the firstperson in the seniority list, he should be promoted.’

15.4.2. In Central Council for Research (supra), this Courtfurther elaborated on the relevant principles, particularly with referenceto the role of merit in relation to the higher posts while observing, interalia, as under:- “6. The principle of merit-cum-seniority is an approved methodof selection and this Court in Sant Ram Sharma v. State ofRajasthan: AIR 1967 SC 1910 held that promotion to “selectiongrade posts” is not automatic on the basis of ranking in the AB

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gradation list and the promotion is primarily based on merit andnot on seniority alone. At p. 1914 of the judgment, it is stated asunder: (AIR para 6)

“The circumstance that these posts are classed as ‘selectiongrade posts’ itself suggests that promotion to these posts is notautomatic being made only on the basis of ranking in thegradation list but the question of merit enters in promotion toselection posts. In our opinion, the respondents are right intheir contention that the ranking or position in the gradation listdoes not confer any right on the petitioner to be promoted toselection post and that it is a well-established rule that promotionto selection grades or selection posts is to be based primarilyon merit and not on seniority alone. The principle is that whenthe claims of officers to selection posts is under consideration,seniority should not be regarded except where the merit of theofficers is judged to be equal and no other criterion is, therefore,available.”

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7. The Court further held that such mode of selection is not violativeof Article 14 of the Constitution.

8. In State of Orissa v. Durga Charan Das: AIR 1966 SC 1547the Constitution Bench of this Court held that the promotion to aEselection post is not a matter of right which can be claimed merelyby seniority.

9. In Union of India v. Mohan Lal Capoor: (1973)2 SCC 836[3](SCC at p. 856, para 37) it was held as under:

F“[F]or inclusion in the list, merit and suitability in all respects shouldbe the governing consideration and that seniority should play onlya secondary role. It is only when merit and suitability are roughlyequal that seniority will be a determining factor, or, if it is not fairlypossible to make an assessment inter se of the merit and suitabilityof two eligible candidates and come to a firm conclusion, seniorityGwould tilt the scale.”

10. In B.V. Sivaiah v. K. Addanki Babu: (1998) 6 SCC 720this Court held that the principle of “merit-cum-seniority” laysgreater emphasis on merit and ability and seniority plays a lesssignificant role. Seniority is to be given weight only when meritand ability are approximately equal.”

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15.4.3. In Haryana State Electronics (supra), this Court againpointed out the root distinction in the principles of merit-cum-seniorityand seniority-cum-merit in the following:- “7. The Court is of the opinion that the principle of merit-cum-seniority and that of seniority-cum-merit are two totally differentprinciples.

8. The principle of merit-cum-seniority puts greater emphasis onmerit and ability and where promotion is governed by this principleseniority plays a less significant role. However, seniority is to begiven weightage when merit and ability more or less are equalamong the candidates who are to be promoted.

9. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority andpromotion to a senior person cannot be denied unless the personconcerned is found totally unfit on merit to discharge the duties ofthe higher post. The totality of the service of the employee has tobe considered for promotion on the basis of seniority-cum-merit….”

16. Keeping the principles aforesaid in view, when we revert tothe scheme of the Rules of 1970, the striking feature is that even at theentry level, the promotions are to be made either on merit-cum-senioritybasis[8] or on merit basis[9]. Further, grant of Selection Grade and SuperTime Scale is also on assessment of merit–cum–seniority[10]. In the givenscheme of the Rules of 1970, it is difficult to countenance any suggestionthat in DHJS, merit could be forsaken at any level or only seniority begiven primacy in the matter relating to upward progression to the higherposts of District and Sessions Judge or Principal Judge, Family Court.Rather, looking to the nature of posts, in every higher progression, meritwould play a major role and would, perforce, acquire primacy.

17. We may also recapitulate a few basic features relating to theimpugned resolutions. As per the facts available on record, prior to theyear 2008, there was only one sanctioned post of District Judge underthe Rules of 1970. Later on, the National Capital Territory of Delhi cameto be bifurcated into 9 Civil Districts and the bifurcation came into effect 8 As per clause (a) of Rule 7(1) and Rule 7A of the Rules of 1970

9 As per clause (b) of Rule 7(1) of the Rules of 1970

10 As per Rule 18 of the Rules of 1970

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Afrom 01.11.2008 by virtue of the notification dated 22.10.2008; and inview of such bifurcation, the strength of District and Sessions Judgeswas increased to 11. This reorganisation and increase of strength of thecadre of DHJS, obviously, led to the requirement of providing the normsand criteria for promotion to the posts of District and Sessions Judgesand equivalent because no such norms and criteria were in existence.BIn keeping with such requirements, the High Court, in its Full Courtmeeting dated 28.04.2009, adopted a resolution to the effect that, for thepurpose of being selected/promoted as District and Sessions Judge, acandidate of DHJS ought to fulfil the criteria of possessing at least two ‘A’ (very good) and three ‘B+’ (good) ACR gradings for the precedingCfive years from the date of consideration for such appointment.Thereafter, in its Full Court meeting dated 15.01.2010, the High Courtproceeded to modify the aforesaid criteria to the effect that for beingpromoted as District and Sessions Judge, a candidate of DHJS ought topossess the minimum ‘A’ (very good) grading in ACRs of each of thefive years under consideration. It had been the case of the respondentDHigh Court that such criteria were adopted as being equivalent to therevised promotion criteria in the Indian Administrative Services by virtueof the residuary provision contained in Rule 27 ibid. As against theaforesaid resolution dated 15.01.2010, the High Court received certainrepresentations, including those from the Associations of the OfficersEand, upon consideration of these representations, a committee comprisingof four Hon’ble Judges, in its report dated 08.10.2010, recommendedfor implementation of the revised criteria in a phased manner; and suchrecommendations of the committee were accepted by the Full Court ofthe High Court on 27.01.2011. In this manner aforesaid, the respondentHigh Court took the decision to implement the revised criteria envisagedFby the resolution dated 15.01.2010 in a phased manner; and therequirements came to be provided that for appointment to the post ofDistrict and Sessions Judge, a candidate should, in the five years precedingthe base year, carry the ACR gradings as follows:

(i) for the year 2009, at least two ‘A’ (very good) and the remainingGthree ‘B+’ (good);

(ii) for the year 2010, at least three ‘A’ (very good) and theremaining two ‘B+’ (good);

(iii) for the year 2011, at least four ‘A’ (very good) and the remainingHone ‘B+’ (good); and

(iv) for the year 2012 and onwards, a minimum of five ‘A’ (verygood).

Further, the Administrative and General Supervision Committeeof the High Court, in its meeting dated 13.09.2013, resolved, inter alia,that the post of Principal Judge, Family Court being equivalent to that ofDistrict and Sessions Judge, the same criteria be also adopted forappointment of Principal Judge, Family Court.

17.1. In an overall comprehension of the matter, we have nohesitation in endorsing the views of the High Court in the impugnedorder that the no-norms position for upward progression in DHJS, asexisting prior to the year 2009, could not have been continued withreorganisation of the District Courts and certain norms, commensuratewith the posts in question, were required to be provided; and wereaccordingly provided with reference to the prescriptions for the officersof IAS in the equivalent pay scales. It has been asserted on behalf of thecontesting respondent, and remains indisputable, that for the officers ofsuch equivalent pay scales, the requirement had been of five “very good”ACR gradings (i.e., ‘A’ grading) for five years preceding the date ofconsideration for higher positions. The High Court establishment hadfurther been reasonable and balanced in its approach when suchthreshold requirement of five “very good” ACR gradings was not foistedon the officers immediately and, in keeping with the position obtainablein the past as also keeping in view the merit requirements, took aconsidered decision after examining the representations that such criteriabe implemented gradually and started with the norms of two “very good”with three “good” ACR gradings for the year 2009 and systematicallyenhanced the norms to three “very good” with two “good” ACR gradingsfor the year 2010; four “very good” with one “good” ACR gradings forthe year 2011; and eventually provided for five “very good” ACR gradingsfor the year 2012 and onwards.

17.2. In the given fact situation and the methodology of gradualimplementation adopted by the High Court, the suggestion on the part ofthe appellant that there had been any so-called retrospective operationof revised criteria remains totally bereft of substance and could only berejected.

18. Turning now to the main plank of the submissions on behalf ofthe appellant that she was not made aware of such so-called revised ABC

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Acriteria, in our view, such submissions carry several shortcomings oftheir own. As noticed, the appellant joined DHJS in the year 2002 andeventually stood second in rank in her batch. She was confirmed witheffect from 25.11.2004. She was, and would always be presumed to be,aware of all the requirements of the Rules of 1970. Moreover, theappellant, a member of DHJS, cannot suggest that she remained obliviousBof the developments about creation of 9 Civil Districts in the year 2008and increase in the strength of District and Sessions Judges to 11. Theappellant was also aware of the fact that no specific provision wasavailable in the Rules of 1970 as regards upward progression in DHJS,particularly to the posts of District and Sessions Judge and PrincipalCJudge, Family Court and hence, by virtue of Rule 27 of the Rules of1970, she would be deemed to be having constructive knowledge thatthe criteria to be adopted for such upward progression would be that asapplicable for the equivalent posts in IAS. The Office Memorandumdated 18.02.2008 issued by the Government of India in its Ministry ofPersonnel, Public grievances and Pensions (Department of PersonnelDand Training) has been placed on record by the contesting respondentand it is not the case of the appellant that she was not aware of thisOffice Memorandum issued by the Government of India[11]. When it hadconsistently been provided that for promotion to the scale of Rs. 18,400– 22,400 and above, the prescribed benchmark of “very good” ought toEbe met in all ACRs of five years under consideration; and when thehigher posts of District and Sessions Judge and Principal Judge, FamilyCourt do carry much higher scales of pay (vide Rule 18 ibid.), neitherthe High Court could be faulted in applying the same benchmark forsuch higher posts in DHJS nor the appellant could feign ignorance aboutthe same.F

18.1. Apart from the above, it is noteworthy that in the Rules of1970, even the entry level promotion to the post in DHJS is on the basisof merit-cum-seniority or merit. Viewed in the light of such requirements,it goes without saying that any upward progression in DHJS could onlybe on the higher requirements of merit and in any case, such requirementsGcannot be lesser than the requirements at entry level. In this view of the 11 In the said OM, it had, inter alia, been provided that, –

“…in order to ensure greater selectivity at higher level of administration, the DPCmay ensure that for the promotion to the scale of Rs.18,400–22,400 and above, theprescribed benchmark of ‘Very Good’ is invariably met in all ACR’s of five yearsHunder consideration…”

matter too, the appellant was conscious of the fact that for upwardmovement in DHJS, merit would acquire primacy; and that seniorityalone was not going to be decisive for promotion to the higher posts ofDistrict and Sessions Judge and the Principal Judge, Family Court.Although there is no requirement in law that criteria for promotion basedon ACR alone be also notified but, in any case, in the scheme of therules and the requirements of the posts in question, the appellant cannotcontend that she was not aware of the position that comparative meritof the incumbents shall be a crucial factor for any upward progression inthe cadre.

18.2. It is also noteworthy that when from the year 2009, suchexercise was undertaken by the High Court establishment to lay downproper norms and criteria for upward progression in DHJS, both theAssociations of the judicial officers namely, Delhi Higher Judicial ServiceOfficers Association as also Delhi Judicial Service Officers Association,made representations after the Full Court meeting dated 15.01.2010 andgradual implementation of the criteria was provided after dueconsideration of the said representations. It is not the case of the appellantthat she is not a member of the Association of DHJS officers.

18.3. Viewed from any angle, it is but apparent that the appellantwas aware of, and shall always be deemed to be conscious of, therequirement that any promotion to the post of District and Sessions Judgeor Principal Judge, Family Court would only be on the basis of suchnorms where merit would be a crucial factor and seniority alone wouldnot suffice. It follows as a necessary corollary that the appellant wasalso conscious of the position that while making any such promotion, theassessment would be based on the competitive merit of the candidatesin the zone of consideration; and if any candidate in such zone ofconsideration was possessed of better merit than herself, he would bepreferred for promotion.

19. Coming now to the operation of the criteria in question, weare clearly of the view that providing for the norms for assessment ofthe comparative merits of the candidates in the zone of consideration,was squarely within the domain of the High Court; and infringement ofthe right of consideration could only be suggested if different yardsticksor different norms were provided and applied qua the similarlycircumstanced persons. However, this is not the case of the appellantnor it could be so because the High Court has apparently taken up all the AB

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Apersons in the zone of consideration at the relevant time and has accordedpromotion on the basis of comparative merit of the candidates. Theappellant, when could not stand in such competitive merit position, cannotraise a complaint about infringement of any of her legal rights. It is notthe case of the appellant that anybody junior to her and standing equal inmerit or anybody not fulfilling the criteria laid down by the High CourtBhas been promoted.

19.1. Though, in all fairness, the appellant has not attempted toquestion the reasonableness of the criteria as provided by the High Courtbut, having regard to the issues raised, we feel inclined to observe thatlooking to the duties and responsibilities attached with the higher postsCof District and Sessions Judge and Principal Judge, Family Court, theHigh Court cannot be faulted in providing for a reasonable method ofassessment of the requisite merit in the manner that a candidate in thezone of consideration ought to be possessing minimum five “very good”ACRs in the preceding five years from the base year. As already noticed,Din fact, the criteria so adopted had been the identical one as provided forthe members of IAS in the equivalent pay scales.

20. Therefore, the contentions urged on behalf of the appellantabout non-communication of the criteria for promotion turn out to betotally meritless and the grievance as suggested on behalf of the appellantEcannot be considered to be a legal grievance.

21. From the material placed on record, it is also apparent that thecase of the appellant was duly considered for such promotion along withthe other incumbents but herself and a few others were not promotedfor not fulfilling the criteria as provided in the impugned resolutions. TheFfact that the case of the appellant was also duly considered is amplyborne out from the minutes of the Full Court meetings, including those ofthe meeting dated 09.01.2015 , 16.04.2015, 19.09.2015 and 28.11.2016(the relevant parts of two such resolutions dated 09.01.2015 and28.11.2016 have been extracted in paragraphs 5.6.1 and 5.6.2hereinabove). Therefore, the appellant cannot raise a grievance that theGrespondent establishment has not accorded due consideration to her casefor promotion. As noticed, case of the appellant was duly considered butshe could not be promoted for not possessing the requisite gradings inher ACRs of the relevant period.

22. Having regard to the facts and circumstances of the presentHcase, the decisions in the cases of Mahesh Narain and Nirmal Chandra Bhattacharjeee (supra) are of no avail to the appellant becausethe fact situation of the said cases were entirely different and this Courtheld that an employee cannot be denied the benefit of a provision forpromotion which was amended after he became eligible for beingpromoted. In the present case, the High Court did not change the eligibilitycriteria for appointment to the post of District and Session Judge orPrincipal Judge, Family Court but merely evolved a selection criteria forevaluation of eligible candidates. There had not been any denial of apre-existing right of the appellant, who entered the zone of considerationonly in the year 2014-15 whereas, the criteria in question was implementedfor the appointments made from the year 2012.

23. For what has been discussed hereinabove, we are clearly ofthe view that the appellant has not been denied fair and reasonableconsideration of her case for promotion to the posts of District andSessions Judge/ Principal Judge, Family Court by operation of the criterialaid down in the impugned resolutions. Point number (1) is, accordingly,answered against the appellant.

RE: POINT NUMBER (2)

24. It has been argued on behalf of the appellant that though thequestioned criteria came to be provided by way of the impugnedresolutions and the same were sought to be implemented in a phasedmanner, but there existed no objective basis for evaluating a candidatebefore assigning any particular grading in ACR; and this fact is highlightedin the impugned order itself where the Court has recognised the factthat there was no uniform set of rules and guidelines for the appraisalcommittees to follow and proceeded to lay down certain norms andguidelines in that regard. Therefore, and while seeking strength fromsuch observations in the impugned order, it has been contended thatdeep lacuna in the system left a wide vacuum in implementation of thenew benchmark provided by the impugned resolutions without any meansof representation for the eligible candidates like the appellant, who wereotherwise suitable and eligible for being considered for promotion. Thedecision of this Court in the case of Dev Dutt (supra) has also beenreferred on behalf of the appellant. As noticed, it had also been thesubmission on behalf of the appellant that she was prejudiced for notbeing provided with the point-wise gradation and also for having notbeen provided with the gradings of the other officers who were junior toherself and who were given the promotion. In our view, the submissions AB

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Aremain totally meritless and it cannot be said that the contesting respondenthas caused any prejudice to the appellant in the matter of ACR gradings.

25. The fundamental requirement in law for communication ofevery entry in ACR to the employee concerned, as settled in the case ofDev Dutt (supra) and reaffirmed in the case of Sukhdev Singh v. UnionBof India: (2013) 9 SCC 566, is neither of any doubt nor of any dispute.The law declared in the case of Dev Dutt (supra), as referred on behalfof the appellant, could be usefully noticed as under: –

“9. In the present case the benchmark (i.e. the essentialrequirement) laid down by the authorities for promotion to thepost of Superintending Engineer was that the candidate shouldhave “very good” entry for the last five years. Thus in this situationthe “good” entry in fact is an adverse entry because it eliminatesthe candidate from being considered for promotion. Thus,nomenclature is not relevant, it is the effect which the entry ishaving which determines whether it is an adverse entry or not. Itis thus the rigours of the entry which is important, not thephraseology. The grant of a “good” entry is of no satisfaction tothe incumbent if it in fact makes him ineligible for promotion orhas an adverse effect on his chances.

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17. In our opinion, every entry in the ACR of a public servantmust be communicated to him within a reasonable period, whetherit is a poor, fair, average, good or very good entry. This is becausenon-communication of such an entry may adversely affect theemployee in two ways: (1) had the entry been communicated toFhim he would know about the assessment of his work and conductby his superiors, which would enable him to improve his work infuture; (2) he would have an opportunity of making a representationagainst the entry if he feels it is unjustified, and pray for itsupgradation. Hence, non-communication of an entry is arbitrary,Gand it has been held by the Constitution Bench decision of thisCourt in Maneka Gandhi v. Union of India: (1978) 1 SCC248 that arbitrariness violates Article 14 of the Constitution.

18. Thus, it is not only when there is a benchmark but in all casesthat an entry (whether it is poor, fair, average, good or very good)must be communicated to a public servant, otherwise there is H

violation of the principle of fairness, which is the soul of naturaljustice. Even an outstanding entry should be communicated sincethat would boost the morale of the employee and make him workharder.

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41. In our opinion, non-communication of entries in the annualconfidential report of a public servant, whether he is in civil, judicial,police or any other service (other than the military), certainly hascivil consequences because it may affect his chances for promotionor get other benefits (as already discussed above). Hence, suchnon-communication would be arbitrary, and as such violative ofArticle 14 of the Constitution.”

25.1. In our view, reference to the aforesaid principles remainstotally misplaced in the fact situation of the present case. It is not indispute that the appellant was, in fact, informed of every grading madein her ACR. She was awarded ‘B+’ (good) in the years 2010, 2011,2012 and 2013; and ‘A’ (very good) in the year 2014. From the materialplaced on record, it appears that the appellant never challenged hergradings for any year except that for the year 2011 when she requestedfor upgradation of her ACR grading from ‘B’ to ‘B+’ or ‘A’; and theHigh Court, acceding to her request, upgraded her ACR to ‘B+’. Asnoticed, the impugned resolution dated 27.01.2011 came to be adoptedafter due consideration of the representations made to the High Courtand in conformity with the criteria provided by the Government of Indiafor the posts equivalent in scale to that of District Judges. However, thecriteria of having ‘A’ (very good) grading in the preceding five yearswas implemented in a phased manner, as already noticed hereinbefore.The appellant, not being oblivious of the position that for any upwardprogression in DHJS, comparative merit would be a key factor, chose toremain contented with her grading at ‘B+’ in the relevant years and didnot question the same at the appropriate time and in appropriate manner.That being the position, the appellant cannot be acceded the right tocontend now and at this stage that the ACR gradings have operatedadverse to her. The requirements of the decision in Dev Dutt (supra)were duly met with communication of ACR gradings to the appellant.

26. Having regard to the circumstances of this case, we areimpelled to observe that while raising grievance with regard to the impact A

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Aand effect of ACR gradings, the appellant appears to have missed outthe fundamental factor that for the promotions in question, an individual’sminimum merit, by itself, was not going to be decisive; but the relevantfactor was going to be comparative merit of the persons in the zone ofconsideration. That being the position, when the persons in zone ofconsideration possessing ‘A’ (very good) grading have been promoted inBpreference to her, the appellant cannot raise a grievance about hergradings after such promotions.

27. The other contention as on behalf of the appellant that onlythe overall ACR grading was communicated but not the point-wise gradingor criteria for grading, again, does not advance the cause of the appellantCin any manner. As noticed, the appellant did not challenge her ‘B+’gradings in the years 2010, 2012 and 2013. She was awarded ‘B’ gradingin the year 2011 and upon her representation, the same was upgraded to‘B+’. When the appellant had not otherwise challenged her ‘B+’ gradingsfor the years under consideration, she would not be entitled to raise anyDquestion on the process or criteria for such award of gradings. Evenotherwise, the appellant has failed to show any legal requirement on therespondent establishment to supply to her anything other than the overallgrading. Another feeble suggestion on behalf of the appellant, as noticedin the impugned order by the High Court, about want of knowledge ofgradings of other officers has rightly not been pressed before us. TheEgrading of an individual officer remains a matter between the officerand the establishment and any other officer cannot claim to be informedabout the grading of any other officer as a matter of right.

28. On behalf of the appellant, however, a substantial emphasishas been put on the observation made in the impugned order on theFrequirement of uniform norms for awarding of the grades in ACR; and ithas been contended that no objective criteria existed for evaluating anofficer. These submissions are also sans merit and do not in any manneradvance the cause of the appellant in the present case. This is for thesimple reason that the system and method for awarding of the grades inGACR at the relevant time was equally applicable to all the judicial officers;and the gradings, not only of the appellant but of all other officers too,were made by way of the same methodology. Therein too, as noticed,the judicial officers’ work and performance was supervised and gradedby the committees comprising of three Hon’ble Judges and ultimately,the gradings were finalised by the Full Court. In the impugned orderH

also, the High Court found such system to be a merited one but indicatedthe want of uniform set of rules or guidelines for all the appraisalcommittees to follow; and thereafter proceeded to lay down certain normsto be kept in view by the evaluation authorities. The observations by theHigh Court, essentially meant for improvement of the system with uniformset of guidelines, do not nullify the effect of the ACRs already markedby the existing system. The guidelines indicated by the High Court in theorder impugned could only be construed as being meant for futureimplementation. Nothing turns upon such observations in relation to thecase of the appellant.

29. For what has been discussed hereinabove, we are clearly ofthe view that the appellant has not been able to establish that she hadsuffered any prejudice in the matter of ACR gradings. Point number (2)is also, accordingly, answered against the appellant.

30. The discussion and findings aforesaid are sufficient to disposeof this appeal but before concluding, we deem it necessary to point outthat at the conclusion of the hearing of this matter, the appellant, whowas present in the Court to assist the arguing counsel, made thesubmissions before us, with permission, that she had been a hard workingofficer and had never received any adverse comment in her career butdenial of promotion has caused her serious prejudice. In regard to suchlamentation, we deem it appropriate to observe that while the appellant,standing second in rank in her batch and having never earned any adversecomment, cannot be faulted in making such expressions but at the sametime, it is expected of her to appreciate that when any particularprogression depends on comparative merit, and only the persons standinghigher in merit have been accorded such progression, her grievancecannot partake the character of a legal grievance that could lead to anyrelief in law. We may put it differently also to say that not being foundeligible for promotion with reference to the criteria as provided is not, byitself, any adverse pronouncement against the diligence and commitmentof the appellant. Nothing further could be or need be said in this matter.

CONCLUSION

31. In the result, this appeal fails and is therefore dismissed withno order as to costs and with the observations foregoing.

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