RAVIKUMAR DHANSUKHLAL MAHETA & ANR. versus HIGH COURT OF GUJARAT AND ORS. on 12 May 2023

1. By way of this writ petition under Article 32 of the Constitutionof India, the writ petitioners have prayed for an appropriate writ, directionor order to declare the Select List dated 10.03.2023 issued by the HighCourt of Gujarat at Ahmedabad for the promotion of Senior Civil JudgesDto the Cadre of District Judge (65% quota) as being violative of Article14 of the Constitution of India as well as Rule 5 of the Gujarat StateJudicial Service Rules, 2005 (hereinafter referred to as “Rules, 2005”)as well as the Recruitment Notice – District Judge (65%) dated12.04.2022.2. The facts leading to the present writ petition in nutshell are asEunder:- 2.1 That this Court in the case of All India Judges’ Associationand Ors. Vs. Union of India and Ors., (2002) 4 SCC 247, haddirected that the recruitment to the Higher Judicial Services, i.e., thecadre of District Judges will be on the basis of principle of “merit-cum-Fseniority” and passing a suitability test. This Court also further directedthat the appropriate Rules shall be framed as above by the respectiveHigh Courts.

2.2 In pursuance to the above directions, the High Court of Gujarathas framed the Gujarat State Judicial Service Rules, 2005, in which, 50Gpercent of the promotion from amongst the Senior Civil Judges (SeniorDivision) has been enhanced to 65 percent by way of amendment in theRules, 2005 on 23.06.2011. Rule 5(1)(i) of the Rules, 2005 requires that65 percent of the posts in the cadre of District Judges shall be filled in byway of promotion from amongst the Senior Civil Judges on the basis of“Hprinciple of merit-cum-seniority and passing a suitability test”.

2.3 The High Court of Gujarat at Ahmedabad issued anadvertisement by way of Recruitment Notice – District Judge (65%)dated 12.04.2022 for the promotion to the cadre of District Judges fromamongst the Senior Civil Judges on the basis of the principle of merit-cum-seniority and passing a suitability test to fill up 65 percent of thevacancies. The said Notification was issued alongwith list of 205 judicialofficers in the cadre of Senior Civil Judges falling under the zone ofconsideration.

2.4 At this stage, it is required to be noted that in the RecruitmentNotice itself, it was specifically mentioned that “promotion to the cadreof District Judge (65%) from amongst the Senior Civil Judges will be onthe basis of principle of merit-cum-seniority and on passing a suitabilitytest. In the Recruitment notice also, there was a reference to the suitabilitytest, which comprised of four components for assessing the suitability ofa judicial officer for promotion, which reads as under:- 2.5 Written test was conducted by the High Court on 16.10.2022.The High Court declared a list on 17.11.2022 of 175 judicial officers,who appeared in the written test and qualified the written test. Thepetitioners were also declared qualified in the written test.

2.6 The High Court on 18.11.2022 called upon the month-wiselist of judgments disposed of, civil and criminal cases, of the candidates,who have been declared qualified vide list dated 17.11.2022. The HighCourt declared on 10.03.2023, the Select List of Senior Civil Judges.The marks of the selected candidates were ranging between 148.50 to100.50 marks. The petitioner No. 1 secured 135.50 out of 200 marks A

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Aand the petitioner No. 2 secured 148.50 marks out of 200 and as thoughhaving higher marks, they were not appointed and/or their names werenot recommended for promotion to the cadre of District Judge, thepetitioners filed the present writ petition on 27.03.2023.

2.7 This Court issued the notice in the present writ petition onB13.04.2023 and passed a detailed speaking order, which reads as under:-

“It is the case on behalf of the petitioner(s) that as per theRecruitment Rules, the post of District Judge is to be filled in bykeeping 65% reservation on the basis of the principle of merit-cum-seniority and passing a suitability test. It is submitted thatCdespite the above while making the appointments vide Notificationdated 10.03.2023, the merit-cum-seniority principle has been givengo-by and the appointments are made on the basis of the seniority-cum-merit. It is submitted that so far as petitioner no.1 is concerned,he has secured 135.5 marks out of 200 and petitioner no.2 hassecured even the highest marks, i.e., 148.5 out of 200 and despiteDthe above, the candidates who are having lower marks have beenappointed.

Issue notice returnable on 28.04.2023.

Dasti service, in addition, is permitted.EIt will be open for the petitioners to serve copy of the petitionon the standing counsel for respondent nos. 1 and 2.”

2.8 Despite having been served with the copy of the present writpetition and though notice was made returnable on 28.04.2023 and pendingthe present writ petition, the State Government hurriedly issued theFNotification dated 18.04.2023 notifying the appointment of 68 candidates,who were selected by Select List dated 10.03.2023, however, mentionedin the Notification that the appointments / promotions shall be subject tothe outcome of the present writ petition.

3. Shri R. Basant, learned Senior Advocate has appeared withGShri Purvish Jitendra Malkan, learned counsel appearing on behalf ofthe writ petitioners. Shri S.V. Raju, learned ASG has appeared on behalfof the State and Ms. Deepanwita Priyanka, learned counsel has alsoappeared on behalf of the State. Shri Dushyant Dave, Ms. MeenakshiArora, learned Senior Advocates/ counsel have appeared on behalf ofthe respective promotees.H

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4. Shri R. Basant, learned Senior Advocate appearing on behalfof the respective petitioners has vehemently submitted that the impugnedselection / promotion to the post of District Judge (65%) vide selectionlist dated 10.03.2023 and the further promotion order dated 18.04.2023issued by the Government of Gujarat is absolutely illegal and contrary toRule 5(1)(i) of the Rules, 2005 as amended in 2011 as well as theRecruitment Notice – District Judge (65%) dated 12.04.2022.

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4.1 It is submitted that as per the relevant Recruitment Rules andthe Recruitment Notice, 65 percent of the posts in the cadre of DistrictJudge shall have to be filled in by way of promotion from amongst theSenior Civil Judges on the basis of principle of merit-cum-seniority andpassing a suitability test. It is submitted that despite the above, the HighCourt as well as the State Government have given the promotion byapplying the principle of seniority-cum-merit and the principle of merit-cum-seniority has been given a go-by. It is submitted that the petitionerNo. 1 has secured 135.5 marks out of 200 marks and the petitioner No.2has secured even the highest marks, i.e., 148.5 out of 200 marks anddespite the above, the candidates who are having lower marks havebeen promoted.

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4.2 On the principle of “merit-cum-seniority” and “seniority-cum-merit”, the learned Senior Advocate appearing on behalf of the petitionershas heavily relied upon the following decisions:- E

(i) B.V. Sivaiah and Ors. Vs. K. Addanki Babu and Ors.,(1998) 6 SCC 720;

(ii) State of Kerala and Anr. Vs. N. M. Thomas and Ors.,(1976) 2 SCC 310;F

(iii) Shriram Tomar and Anr. Vs. Praveen Kumar Jaggiand Ors., (2019) 5 SCC 736; and

(iv) Decision of this Court in the case of Manoj Parihar andOthers Vs. State of Jammu & Kashmir and Ors., SLP(C) No. 11039 of 2022 decided on June 27, 2022.

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4.3 It is further submitted by Shri Basant, learned Senior Advocateappearing on behalf of the respective petitioners that the method adoptedby the High Court in preparing the Select List for promotion to the postof District Judge is absolutely illegal and just contrary to the Rules, 2005

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Afurther amended in the year 2011. It is submitted that as per the HighCourt and so stated in the counter affidavit, explaining the procedureadopted for the selection of 68 candidates vide selection list dated10.03.2023, it is stated as under:- “9. The suitability of candidate had for components which wereBduly reflected in the Recruitment Notice. The “Merit” eligibilityrequired a Candidate to secure minimum 40% marks in eachcomponent with 50% marks aggregate. Upon achieving this, thefinal selection would be based on seniority. Accordingly, a selectlist of 68 candidates was prepared.”

C4.4 It is submitted that by adopting the above method, the HighCourt has adopted the principle of “seniority-cum-merit”. It is submittedthat the High Court by following the standard method of seniority-cum-merit is to subject all the eligible candidates in the feeder grade (possessingthe prescribed educational qualification and period of service) to a processDof assessment of a specified minimum necessary merit and then promotethe candidates who are found to possess the minimum necessary meritstrictly in the order of seniority. It is submitted that though the HighCourt uses the nomenclature of above method as merit-cum-seniority,but actually has followed the principle of seniority-cum-merit. In supportof his above submission, the learned Senior Advocate has heavily reliedEupon the decision of this Court in the case of N.M. Thomas and Ors.(supra) as well as in the case of C.P. Kalra Vs Air India (1994)Supp. 1 SCC 454. It is submitted that in the case of C.P. Kalra (supra),this Court has ruled that though the Rules in the said case mention merit-cum-seniority, however, rules elaborately lay down method of seniority-cum-merit.F

4.5 It is further submitted by the learned Senior Advocate appearingon behalf of the petitioners that as per the settled position of law, whenpromotion is to be based on “merit-cum-seniority” only, the basic qualifiedseniority has to be seen for eligible candidates and thereafter the selectionGfor promotion has to be done on the basis of merit only. It is submittedthat, however, the process adopted by the High Court and the State is incomplete departure of the same. It is submitted that in the present case,the High Court has considered the seniority to be the least identifiedcriteria for promotion, which cannot be sustained, if the principle of “merit-cum-seniority” as provided under the Rules, 2005 is to be followed.H

4.6 It is submitted that in any case, in the present case, theappointment in the cadre of District Judge is governed by the Rules,2005 as amended in the year 2011, which specifically provides forpromotion to the post of District Judge on the basis of principle of merit-cum-seniority and passing a suitability test.

4.7 It is submitted that the High Court of Jharkhand at Ranchiin 2019 while making appointment to the Superior Judicial Serviceshas followed the principle of merit-cum-seniority, by the same method,which the petitioners are praying before this Hon’ble Court to directHigh Court of Gujarat to follow. Reliance is placed on the decision ofthe High Court of Jharkhand in the case of Writ Petition (S) No.3771 of 2019 dated 29.06.2022. It is further submitted that the HighCourt of Calcutta has also followed the principle of merit-cum-seniority,by the same method, as petitioners are praying for. Merit-wise resultof normal promotion-2020 to the cadre of District Judge issued byCalcutta High Court would go to show that the first 17 officers, whoare in the merit, are selected and recommended for appointment to thepost of District Judge.

4.8 It is submitted that from the Merit List produced by the HighCourt in the Counter Affidavit, it will satisfy that the petitioners ought tohave been included in the first 68 candidates. It is submitted that if theHigh Court would have followed the principle of “merit-cum-seniority”,in that case, the petitioners would have been promoted to the post ofDistrict Judge being more meritorious and having more marks than thepromoted candidates.

4.9 It is further submitted that even otherwise once the criteriafor eligibility have been mentioned in the recruitment notice, namely,“merit-cum-seniority” and “suitability test”, thereafter, it was not openfor the High Court and the State to include the additional requirement /qualification of seniority either during the process or after the selectionprocess. Reliance is placed on the decision of this Court in the case ofHemani Malhotra Vs. High Court of Delhi, (2008) 7 SCC 11.

4.10 Making above submissions and relying upon the abovedecisions, it is prayed to allow the present writ petition.

5. A counter affidavit is filed on behalf of the State. The learnedAdvocate appearing on behalf of the High Court has submitted as under:- A

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A(i)That the present writ petition under Article 32 of theConstitution of India may not be entertained and thepetitioners may be relegatedto first approach the HighCourt.;

(ii) That in the present case, the Select List was published onB10.03.2023 and the State Government was moved on thevery day to issue necessary appointment orders.;

(iii) That in the present case, a Selection Committee wasconstituted for the purpose of 2022 selection. A feeder cadreof 205 Senior Civil Judges was created with eligibility ofCthose who have at-least two years of qualifying service.The list was uploaded on 12.04.2022 and the petitionerswere enlisted in the said list.;

(iv) That the suitability of a candidate had four components,which were duly reflected in the Recruitment Notice. TheD“Merit” eligibility required a candidate to secure minimumof 40% marks in each component with 50% marksaggregate. Upon achieving this, the final selection wouldbe based on seniority. Accordingly, a Select List of 68candidates was prepared, which was in consonance withthe decision of this Court in the case of C.P. Kalra (supra).; E

(v) That the Select List was placed before the Full Courtmeeting and upon approval, was published on the websiteof the High Court on 10.03.2023.;

(vi) That the methodology, which has been followed by the HighFCourt is being followed since the year 2011.;

(vii) That the methodology pointed out by the writ petitionersonly points out to selection based on merit. It is submittedthat once the feeder cadre includes the candidates whohave just two years of experience and the only MarksCriterion is to be seen, the same becomes a selection basedGonly on Merits giving a complete go-by to the principle ofseniority.;

(viii) That in the present case, for the selection, merit is givenpreference in as much as senior candidates pave way formeritorious candidates, if at the first instance, they fail toH

qualify the suitability test and thereafter the remainingcandidates fail to secure minimum marks in each of thecomponents and fail to secure aggregate 50% marks out oftotal 200 marks. It is submitted that, therefore, once meritis determined, seniority takes over. It is submitted that,therefore, the principle of “merit-cum-seniority” has beenfollowed.; A

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(ix) That the petitioners were aware of this procedure andparticipated in it without any demur. It is submitted thattherefore, the writ petitioners are estopped from makingthe present challenge.; C

(x) That the same formula was applied when the presentpetitioners were promoted from their respective posts tothe cadre of Senior Civil Judge. It is submitted that therefore,the writ petitioners, thereafter, cannot make any grievancewith respect to the same methodology adopted whileDconsidering the post of District Judge.;

(xi) That the Andhra Pradesh High Court and the Orissa HighCourt have also followed the same methodology of principleof merit-cum-seniority.;

6. Now, so far as the submission on behalf of the respondents notto entertain the present writ petition under Article 32 of the Constitutionof India is concerned, the said objection is overruled. Taking intoconsideration the fact that the impugned decision of the High Court hasbeen approved by the Full Court of the High Court and taking intoconsideration the earlier decision of this Court in the case of All IndiaJudges’ Association and Ors. (supra) and even thereafter also oneanother petition under Article 32 of the Constitution has been entertained,the present writ petition under Article 32 of the Constitution is entertained.

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7. Learned Senior Advocate appearing on behalf of the promotees,while opposing the present writ petition has made the followingsubmissions:- G

(i) That the Rules, 2005 have been framed in compliance ofthe directions issued by this Court in the case of All IndiaJudges’ Association and Ors. (supra). It is submittedthat in paragraph 27, this Court has held that there should H

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Abe two methods for appointment by promotion, namely, (i)promotion on the basis of principle of merit-cum-seniorityand (ii) by promotion strictly on the basis of merit. Thedistinction between two methods of promotions is that whilein the second method, the merits obtained by the judicialofficers in the examination alone will determine their positionBin the Select List whereas while promotion as per the firstmethod, seniority in the feeder cadres has to be maintained.;

(ii) That in the case of V.K. Srivastava and Ors. Vs.Government of Uttar Pradesh and Anr., (2008) 9 SCC77, this Court has also further clarified that even if theCprinciple of merit-cum-seniority has to be applied, theprinciple is that if the candidates are eligible for promotionto the cadre of District Judges, the seniority in the feedercategory has to be maintained as regards 50 percent of thepromotions are concerned and in the case of 25 percentDpromotions, the test must be rigorous and strictly on meritand such candidate may supersede some of their colleaguesin the feeder category, i.e., Civil Judges (Senior Division).;

(iii) That the very purpose for providing the channel of promotionunder 10% quota through limited competitive examinationEis to provide an incentive to the officers amongst therelatively junior officers to improve and to compete witheach other so as to excel and get quicker promotion.However, this method of promotion is not to be applied whilefilling up the vacancies under the 65% quota.; F(iv)That the merit-cum-seniority does not mean that the lengthof service has no relevance and a written examination thatonly tests academic knowledge, which is sometimes, gainedwithout possessing overall qualities, practical experienceof practicing law.; G(v)Learned counsel appearing on behalf of the promotees hasfurther submitted that the decisions relied on behalf of thepetitioners shall not be applicable for the recruitment ofDistrict Judges. It is further submitted that even the Rulesin Jharkhand and West Bengal are distinct and differentfrom the Rules applicable so far as the Gujarat is concerned.H

RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGHCOURT OF GUJARAT AND ORS. [M. R. SHAH, J.]

It is submitted that in proviso to Rule 5 in Jharkhand Rules,it is stated that seniority shall prevail only when the merit isconcluded in all respects. However, no such provision isstated in the Rules applicable.;

(vi) Making above submissions, it is prayed to dismiss the presentwrit petition.

8. At the outset, it is required to be noted that as per the relevantRecruitment Rules, namely, The Gujarat State Judicial Service Rules,2005 further amended in 2011, the promotion to the post of District Judgeis to be given on the basis of principle of merit-cum-seniority and passinga suitability test. The relevant rules read as under: - “……………………(1) Recruitment to the cadre of DistrictJudge shall be as under:- (i)65 percent of posts shall be filled in by promotion fromamongst the Senior Civil Judge on the basis of principle ofmerit-cum-seniority and passing a suitability test.

(ii) 10 percent of posts shall be filled in by promotion on thebasis of merit through competitive examination fromamongst Senior Civil Judges having not less than five yearsqualifying service:

Provided that when candidates are not available for 10%seats or are not able to qualify in the competitiveexamination, then the vacant posts shall be filled in by regularpromotion in accordance with clause (i) above, (iii)25 percent of the posts shall be filled in by direct recruitmentfrom amongst the eligible advocates on the basis of thewritten and viva voce test to be conducted by the HighCourt:

Provided that all the vacancies shall be fled up in theparticular year and unfilled post shall not be carried forward.

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8.1 It is also required to be noted that even as per the RecruitmentNotice – District Judge (65%), the promotion to the cadre of DistrictJudge (65%) from amongst the Senior Civil Judges shall be on the basisof principle of merit-cum-seniority and passing a suitability test. The A

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Asuitability of a judicial officer for promotion is also provided in theRecruitment Notice, which consists of four components reproducedhereinabove. Thus, as per the statutory Rules and even as per theRecruitment Notice, the promotion to the cadre of District Judge (65%)shall be on the basis of principle of merit-cum-seniority and passing asuitability test. At this stage, it is required to be noted that the Rules,B2005 further amended in the year 2011, have been framed by the HighCourt pursuant to the directions issued by this Court in the case of AllIndia Judges’ Association and Ors. (supra). It is required to be notedthat prior to the decision of this Court in the case of All India Judges’Association and Ors. (supra), the promotion in the cadre of HigherCJudicial Service, i.e., District Judges and Additional District Judges weregiven on the basis of principle of seniority-cum-merit. Emphasising theneed for merit-based criteria for promotion in the cadre of Higher JudicialService, i.e., District Judges and Additional District Judges, this Courtobserved in paragraph 27 as under:- D“27. Another question which falls for consideration is the methodof recruitment to the posts in the cadre of Higher Judicial Servicei.e. District Judges and Additional District Judges. At the presentmoment, there are two sources for recruitment to the HigherJudicial Service, namely, by promotion from amongst the membersEof the Subordinate Judicial Service and by direct recruitment. Thesubordinate judiciary is the foundation of the edifice of the judicialsystem. It is, therefore, imperative, like any other foundation, thatit should become as strong as possible. The weight on the judicialsystem essentially rests on the subordinate judiciary. While wehave accepted the recommendation of the Shetty CommissionFwhich will result in the increase in the pay scales of the subordinatejudiciary, it is at the same time necessary that the judicial officers,hard-working as they are, become more efficient. It is imperativethat they keep abreast of knowledge of law and the latestpronouncements, and it is for this reason that the ShettyGCommission has recommended the establishment of a JudicialAcademy, which is very necessary. At the same time, we are ofthe opinion that there has to be certain minimum standard,objectively adjudged, for officers who are to enter the HigherJudicial Service as Additional District Judges and District Judges.While we agree with the Shetty Commission that the recruitmentH

RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGHCOURT OF GUJARAT AND ORS. [M. R. SHAH, J.]

to the Higher Judicial Service i.e. the District Judge cadre fromamongst the advocates should be 25 per cent and the process ofrecruitment is to be by a competitive examination, both writtenand viva voce, we are of the opinion that there should be anobjective method of testing the suitability of the subordinate judicialofficers for promotion to the Higher Judicial Service. Furthermore,there should also be an incentive amongst the relatively junior andother officers to improve and to compete with each other so as toexcel and get quicker promotion. In this way, we expect that thecalibre of the members of the Higher Judicial Service will furtherimprove. In order to achieve this, while the ratio of 75 per centappointment by promotion and 25 per cent by direct recruitmentto the Higher Judicial Service is maintained, we are, however, ofthe opinion that there should be two methods as far as appointmentby promotion is concerned: 50 per cent of the total posts in theHigher Judicial Service must be filled by promotion on the basisof principle of merit-cum-seniority. For this purpose, the HighCourts should devise and evolve a test in order to ascertain andexamine the legal knowledge of those candidates and to assesstheir continued efficiency with adequate knowledge of case-law.The remaining 25 per cent of the posts in the service shall befilled by promotion strictly on the basis of merit through the limiteddepartmental competitive examination for which the qualifyingservice as a Civil Judge (Senior Division) should be not less thanfive years. The High Courts will have to frame a rule in thisregard.”

8.2 Thereafter, this Court directed that the recruitment to the HigherJudicial Service, i.e., the cadre of District Judges will be 50 percent byway of promotion (which has been subsequently increased to 65 percent)from amongst the Civil Judges (Senior Division) on the basis of principleof merit-cum-seniority and passing a suitability test. Thus, this Court hascategorically emphasised the merit-cum-seniority and passing a suitabilitytest for promotion in the cadre of Higher Judicial Service. That thisCourt directed all the High Courts / States to amend the Rules /Regulations accordingly. Therefore, the High Court framed the GujaratState Judicial Service Rules, 2005, in line with the directions issued bythis Court in the case of All India Judges’ Association and Ors.(supra).

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A8.3 In the present case and as per the case on behalf of the HighCourt, so stated in the counter, the High Court has considered the meritonly for the purpose of achieving the benchmark and thereafter hasswitched to the seniority-cum-merit and has given the promotion on thebasis of seniority only amongst those, who have achieved the benchmarkof 50 percent. Thus, after conducting the written test, which is one ofBthe components to assess the suitability, the High Court has consideredthe merits only for the purpose of achieving benchmark and thereafterhas switched to the principle of seniority-cum-merit and thereby hasgiven a go-by to the principle of merit-cum-seniority. The method adoptedby the High Court is just contrary to the observations made by this CourtCin paragraph 27 in the case of All India Judges’ Association andOrs. (supra) and also contrary to the Gujarat State Judicial ServiceRules, 2005 and the Recruitment Notice.

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8.4 We do not find anything in the Recruitment Rules, 2005 and/or even the Recruitment Notice to consider the merit only for the purposeDof achieving benchmark of 50 percent. The correct method would be toprepare the merit list on the basis of the four components as mentionedin paragraph 2 of the Recruitment Notice, from amongst those SeniorCivil Judges (including ad-hoc Additional District Judges) having not lessthan two years of qualifying service in that cadre and thereafter to preparethe merit list on the basis of the aggregate marks obtained under differentEcomponents and thereby to give the promotion solely on the basis ofmerit, then and then only, it can be said to be following the principle ofmerit-cum-seniority. Therefore, in the present case, while giving thepromotion in the cadre of District Judge, the High Court has given a go-by to the principle of merit-cum-seniority, which this Court has emphasisedFin the case of All India Judges’ Association and Ors. (supra).Therefore, the High Court has adopted the wrong method.

8.5 Now, insofar as the submission on behalf of the contestingrespondents – promotees and the High Court that this procedure is beingfollowed since 2011 and even the same is being followed in other HighGCourts and therefore, this Court may not interfere with such a method isconcerned, the aforesaid cannot be accepted. Merely because, a wrongmethod is being adopted cannot be a ground to perpetuate the same, if itis found to be illegal and/or contrary to the directions issued by thisCourt, more particularly, in the case of All India Judges’ Associationand Ors. (supra).H

8.6 Even the objection on behalf of the promotees that as thisCourt is monitoring the process of recruitment to the post of DistrictJudges and, therefore, the present writ petition may not be entertainedand/or by this Bench, has no substance. What is being monitored is theprocess and not the methodology adopted for promotion to the post ofDistrict Judge. This Court is monitoring whether the time schedule fixedby this Court in the case of Malik Mazhar Sultan (supra) is beingfollowed or not and the posts are timely filled in or not. The mode andmethod of the promotion is not the subject matter.

8.7 Now, insofar as the reliance placed upon the decision of thisCourt in the case of C.P. Kalra (supra) relied upon on behalf of thepromotees is concerned, at the outset, it is required to be noted that thesaid decision is prior to the decision of this Court in the case of All IndiaJudges’ Association and Ors. (supra). In the present case, theRecruitment Rules specifically provides that the promotion shall be givenby applying the principle of merit-cum-seniority, which is to be adheredto.

8.8 Now, insofar as the reliance placed upon the decision of thisCourt in the case of V.K. Srivastava and Ors. (supra) relied upon onbehalf of the promotees is concerned, at the outset, it is required to benoted that in the said decision, of this Court is not observing that theprinciple of merit-cum-seniority is to be given a go-by. Before this Court,it was submitted on behalf of the petitioners that prior to the amendmentof the Rules, promotion to the cadre of District Judge was based on theprinciple of “seniority-cum-merit” and now, as per the amended Rules,pursuant to the directions issued by this Court, the principle has beenchanged to “merit-cum-seniority” and the same has seriously affectedthe rights of the Civil Judges (Senior Division). However, the amendedRules are applicable retrospectively and to that, this Court noted thecontention on behalf of the State that in the process of promotion, meritalone was not being given importance. There was no direct controversybefore this Court on the principle of “merit-cum-seniority” and/or whatcan be said to be the “merit-cum-seniority”. The law on the principle of“merit-cum-seniority is by now, settled by this Court in a catena ofdecisions. As observed, while applying the principle of “merit-cum-seniority”, greater emphasis is given on merit and ability and seniorityplays a less significant role. As observed, while applying the principle of“merit-cum-seniority”, the seniority is to be given weight only when merit A

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Aand ability are approximately equal (See B.V. Sivaiah and Ors. (supra);Rajendra Kumar Srivastava and Ors. Vs. Samyut KshetriyaGramin Bank and Ors., (2010) 1 SCC 335).

8.9 It is required to be noted that in the present case and as perthe merit list produced before the High Court, the candidates, who haveBsecured much more marks are denied promotion and the candidates /Civil Judge (Senior Division), who are having less marks / leas meritoriousare promoted. In the present case, the petitioner No. 1 secured 135.50out of 200 marks and the petitioner No. 2 secured 148.50 marks out of200 against which a candidate having secured 101 marks have got thepromotion, which is affecting the principle of “merit-cum-seniority”.C

9. Thus, we are more than satisfied that the impugned Select Listdated 10.03.2023 issued by the High Court and the subsequent Notificationdated 18.04.2023 issued by the State Government granting promotion tothe cadre of District Judge are illegal and contrary to the relevant Rulesand Regulations and even to the decision of this Court in the case of AllDIndia Judges’ Association and Ors. (supra). Therefore, we are morethan prima facie satisfied that the same as such are not sustainable.Though, we were inclined to dispose of the writ petition finally, however,as Shri Dushyant Dave, learned Senior Advocate appearing on behalf ofsome of the respondents – promotees has prayed not to dispose of theEwrit petition finally and, therefore, may consider the question of interimrelief, we are not disposing of the writ petition finally. Taking intoconsideration the fact that the State Government has issued the impugnedNotification dated 18.04.2023 during the pendency of the present writpetition and after the receipt of the notice issued by this Court in thepresent proceedings and, thus, despite in knowledge of the presentFproceedings, however, subject to the ultimate outcome of the presentwrit petition and as observed hereinabove, the State Government couldhave waited till the next date of hearing by this Court, which was on28.04.2023 and at present the respective promotees have not assumedtheir posting on the promotional post and as such are sent for training,Gwe stay the further implementation and operation of the Select List dated10.03.2023 issued by the High Court of Gujarat and the subsequentNotification dated 18.04.2023 issued by the State Government. Meaningthereby, the respective promotees be sent to their original posts whichthey were holding prior to their promotion vide Select List dated10.03.2023 and Notification dated 18.04.2023. However, it is clarifiedH

that the present stay order shall be confined with respect to thosepromotees whose names do not figure within the first 68 candidates inthe Merit List on the basis of the merits, the copy of which is producedby the High Court along with the counter. Meaning thereby, the promotionof those promotees, whose names otherwise do figure in the first 68candidates in the Merit List shall be continued as even otherwise andeven if the writ petition is allowed, in that case also, they will get thepromotion on merits.

10. Looking to the importance of the matter and the observationsmade by this Court in the case of All India Judges’ Association andOrs. (supra), pursuant to which the High Court has amended the Rulesand the Regulations, we are of the opinion that let the matter be heardby the Bench headed by Hon’ble the Chief Justice of India, however,subject to and after obtaining appropriate orders from the Hon’ble theChief Justice of India on the administrative side. The Registry is directedto notify the present writ petition for final hearing on 08.08.2023.

Nidhi Jain(Assisted by : Rakhi, LCRA)

Directions issued.

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