RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH COURT OF GUJARAT & ORS

Citation: Writ Petition (c) No. 432 of 2023

Court: Allahabad High Court (Lucknow Bench)

Bench: Ravikumar Dhansukhlal Maheta

Case summary

of convenience - Further, wherever the facts of the case are not in dispute, and the issue involves the

Judgment text

High Court of Gujarat Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. Writ Petition under Article 32 [2024] 5 S. C. R. 1074 : 2024 INSC 436 Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. (Writ Petition (c) No. 432 of 2023) 17 May 2024 [Dr. Dhananjaya Y. Chandrachud, CJI, J. B. Pardiwala* and Manoj Misra, JJ. ] Issue for Consideration (i) What is the scope of principle of the 'Merit-cum-Seniority' in service jurisprudence; and (ii) Whether promotion of Civil Judges (Senior Division) to the cadre of District Judges in accordance with Rule 5(1) of the Gujarat State Judicial Service Rules, 2005 and the Recruitment Notice dated 12. 04. 2022 issued by the High Court of Gujarat is contrary to the principle of 'Merit-cum-Seniority' as laid down in All India Judges' Association (3). Headnotes† Constitution of India - Art. 32 and Art.

226 - Maintainability of the Writ Petition under Article 32 - A preliminary objection was raised as regards the maintainability of the writ petition under Article 32 of the Constitution, on the ground that the petitioners have an efficacious alternative remedy available to them under Article 226 of the Constitution: Held: Two judicial officers of the rank of Civil Judge (Senior Division) governed by the Gujarat State Judicial Service Rules, 2005 have invoked the jurisdiction under Article 32 of the Constitution - The availability of an alternative remedy does not in any manner affect the maintainability of the writ petition under Article 32 of the Constitution - The rule behind relegating a party to first avail the alternative remedy before knocking the doors of this Court is a rule of self-restraint that is exercised by this Court as a matter of convenience - Further, wherever the facts of the case are not in dispute, and the issue involves the interpretation of rules which are of significant importance having a far-reaching effect, it would be a fit case for this Court to exercise its discretion and entertain the writ petition under Article 32 even if there is an alternative remedy available.

[Paras 40, 41] * Author Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. Gujarat State Judicial Service Rules, 2005 - The Legislative History and Scheme of the Gujarat State Judicial Service Rules, 2005 - discussed. Gujarat State Judicial Service Rules, 2005 - Rule 5(1) with Rule 5(3) - Modes of recruitment: Held: A combined reading of the Rule 5(1) with Rule 5(3) of the 2005 Rules makes it clear that there are three distinct modes of recruitment to the cadre of District & Sessions Judge which are as follows: - (I) 65% posts by promotion from the eligible Civil Judges (Senior Division) having a minimum of two-years of service on the basis of 'Merit-cumSeniority'; (II) 10% posts by promotion from eligible Civil Judges (Senior Division) with a minimum of five-years of service on basis of merit through a competitive examination and; (III) 25% posts by direct recruitment from the eligible members of the Bar on the basis of a written exam and viva voce.

[Para 67] Service Law - Evolution of the Principles of 'Merit-cum- Seniority' and 'Seniority-cum-Merit' in Service Jurisprudence - discussed. Service Law - Principle of 'Seniority-cum-Merit': Held: The principle of 'Seniority-cum-Merit' postulates that: (i) Minimum requirement of merit and suitability which is necessary for the higher post can be prescribed for the purpose of promotion - (ii) Comparative Assessment amongst the candidates is not required - (iii) Seniority of a candidate is not a determinative factor for promotion but has a predominant role - (iv) Upon fulfilling the minimum qualifications, promotions must be based on inter-se seniority.

[Para 98 (I)] Service Law - Principle of the 'Merit-cum-Seniority': Held: The principle of 'Merit-cum-Seniority' postulates that: (i) Merit plays a predominant role in and seniority alone cannot be given primacy; (ii) Comparative Assessment of Merit is a crucial, though not a mandatory, factor; (iii) Only where merit is equal in all respects can inter-se seniority be considered - Meaning that a junior candidate can be promoted over the senior if the junior is more meritorious.

[Para 98 (II)] Service Law - Principles of 'Merit-cum-Seniority' and 'Seniority- cum-Merit' - Nature of these principles: Held: The principle of 'Merit-cum-Seniority' and 'Seniority-cum- Merit' are a flexible and a fluid concept akin to broad principles within which the actual promotion policy may be formulated - They are not strict rules or requirements and by no means can supplant or take the place of statutory rules or policies that have been formulated, if any - These principles are dynamic in nature very much like a spectrum and their application and ambit depends upon the rules, the policy, the nature of the post and the requirements of service - The principles applicable to promotion such as the principle of 'Merit-cum-Seniority' and 'Seniority-cum-Merit' can best be described as two ends of a spectrum - They are broad categories or frameworks for promotion and do represent the actual modalities by which promotions are to take place - It is the rules and the promotion policy, along with the intention of the legislature or the selection board, as the case may be, that supplements these principles and delineates the actual modality of how promotion is to take place - Through these rules and promotion policy, the legislature or the selection body specifies the area and the parameters or the weightage which is to be given to the aspect of "Merit" and "Seniority" on the said spectrum.

[Para 110] Constitution of India - Art. 235 - High Court as a custodian of the District Judiciary under Article 235 of the Constitution: Held: It is clear that when it comes to promotion of judicial officers of the District Judiciary, the control vests with the High Court under Article 235 of the Constitution - The High Court being the sole authority in this regard can clearly lay down rules and policies pertaining to promotions which includes the power to specify the criteria and parameters it deems most suitable and appropriate for the purpose of promotion and the manner in which promotion is to be made as long as it is within the contours of what has been laid down in All India Judges' Association (3).

[Para 119] Service Law - Objectives intended to be achieved through All India Judges' Association (3) - Two-fold objectives: Held: (i) First, to ensure that unlike the traditional promotion policy under which seniority alone was considered for promotion, a new policy should be devised under which seniority would be considered for promotion, but only for those candidates who possessed the minimum necessary standard of suitability for the post, and; (ii) Secondly, to prevent loss of motivation amongst the relatively junior members of the service, a third category for promotion to Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors.

the Higher Judicial Service should be created, wherein promotions would be given strictly on the basis merit, to be ascertained through a limited departmental competitive examination - Thus, while the comparison of inter-se merit to determine the most meritorious candidates was the procedure to be adopted for filling up the seats under the newly created category, it was never the intention of this Court in the aforesaid decision to mandate the comparative assessment of merit in the category of regular promotions based on seniority - The only additional requirement which was provided for by the aforesaid decision for this category of candidates was the possession of certain minimum objectively determinable standard of suitability.

[Paras 127, 128] Service Law - Judiciary - Promotion - Introduction of a suitability test: Held: The objective sought to be achieved by the introduction of a suitability test in the regular promotional category was limited to the assessment of a minimum standard of suitability - It would be incorrect to say that the marks scored by a candidate in the suitability test are proportional to the merit of the candidate - This can be understood with the aid of an illustration - Take a case wherein the minimum marks required to be obtained in the suitability test is 'x'; then for the purpose of 65% promotional quota, as soon as a candidate obtains 'x' marks in the suitability test, such a candidate becomes eligible for being considered for promotion in that category subject to their seniority vis-à-vis the other suitable candidates - It cannot be said that a candidate who obtains (x + 10) marks is more meritorious or more suitable than those candidates who obtain 'x' or (x + 5) marks in the suitability test - Every candidate who scores higher than or equal to 'x' marks in the suitability test is considered equally suitable and equally meritorious for the purpose of 65% promotional category.

[Para 129] Gujarat State Judicial Service Rules, 2005 - 'Merit-cum- Seniority' in context of: Held: The term 'Merit-cum-Seniority' in context of 2005 Rules implies that both merit and seniority would be considered in the promotion of a candidate, with merit being determined on the basis of a suitability test - The exact modalities of how merit and seniority are to be apportioned is a legislative function and is to be performed keeping in mind the unique requirements and circumstances of 1078 the organization - In the instant case, there is no fault with the promotion process adopted by the High Court of Gujarat as the same fulfils the twin requirements stipulated in All India Judges' Association (3) being: - (I) The objective assessment of legal knowledge of the judicial officer including adequate knowledge of case law and; (II) Evaluation of the continued efficiency of the individual candidates - The four components of the Suitability Test as prescribed under the recruitment notice dated 12.

04. 2022 comprehensively evaluate (i) the legal knowledge including knowledge of the case law through the objective MCQ - based written test AND (ii) the continued efficiency by evaluation of the ACRs, average disposal and past judgments of the concerned judicial officer.

[Paras 132, 141(D), 141(E)] Gujarat State Judicial Service Rules, 2005 - Suggestions to make the suitability test more meaningful: Held: The High Court of Gujarat is proposed to amend its Rules appropriately in line with the Uttar Pradesh Higher Judicial Service Rules, 1975 where the recruitment process has been elaboratively laid down - The minimum standard to be objectively assessed by way of a suitability test should be made more efficacious and productive - The Court suggests the following: (i) Apart from the four components included in the Suitability Test, an additional fifth component in the form of an Interview or Viva Voce should also be included in order to assess the ability and knowledge of the candidates; (ii) The High Court may consider enhancing the minimum specified threshold of marks as prescribed in the suitability test and each of its component; (iii) The evaluation of judgments delivered by the judicial officer being considered for promotion should be of the last two years instead of one year; (iv) Instead of seniority being considered at the very last stage of the process, some marks may be allocated for seniority at the stage of suitability test and thereafter, the final select list may be prepared on the basis of total marks.

[Para 140] Service Law - Gujarat State Judicial Service Rules, 2005 - Suitability of each candidate should be tested on their own merit: Held: What has been conveyed by this Court in All India Judges' Association (3) is that the suitability of each candidate should be tested on their own merit - The aforesaid decision does not speak about comparative merit for the 65% promotional quota - In other Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. words, what is stipulated is the determination of suitability of the candidates and assessment of their continued efficiency with adequate knowledge of case law.

[Para 141A] Service Law - Gujarat State Judicial Service Rules, 2005 - Promotion - 65% promotional quota - Suitability test - Requisite marks - Merit list: Held: For the 65% promotional quota this Court in All India Judges' Association (3) did not state that after taking the suitability test, a merit list should be prepared and the judicial officers should be promoted only if they fall in the said merit list - It cannot be said to be a competitive exam - Only the suitability of the judicial officer is determined and once it is found that candidates have secured the requisite marks in the suitability test, they cannot be thereafter ignored for promotion - However, it is clarified that for the 65% promotional quota, it is for a particular High Court to prescribe or lay down its own minimum standard to judge the suitability of a judicial officer, including the requirement of comparative assessment, if necessary, for the purpose of determining merit to be objectively adjudged keeping in mind the statutory rules governing the promotion or any promotion policy in that regard.

[Paras 141B, 141C] Service Law - Gujarat State Judicial Service Rules, 2005 - It was contended that the High Court wrongly subjected all eligible candidates in the feeder cadre i. e. Civil Judge (Senior Division) to a process of assessment of a specified level of minimum merit and then proceeded to prepare the final select list strictly in accordance with the seniority of the candidates: Held: This Court is of the view that if the contention of the petitioners were to be accepted then it would completely obliterate the fine distinction between the two categories of promotion in the cadre of District & Sessions Judge by way of 65% promotion on the basis of 'Merit-cum-Seniority' and 10% promotion strictly on the basis of merit - In other words, the 65% quota for promotion will assume the character of the 10% quota for promotion by way of a departmental competitive examination which is distinct in its nature since the latter is strictly based on merit.

[Para 141F] Service Law - Gujarat State Judicial Service Rules, 2005 - Whether promotion of Civil Judges (Senior Division) to the 1080 cadre of District Judges in accordance with Rule 5(1) of the 2005 Rules and the Recruitment Notice dated 12. 04. 2022 issued by the High Court of Gujarat is contrary to the principle of 'Merit- cum-Seniority' as laid down in All India Judges' Association (3): Held: There was no fault with the promotion process adopted by the High Court of Gujarat as the same fulfils the twin requirements stipulated in paragraph 27 of All India Judges' Association (3) being: - (I) The objective assessment of legal knowledge of the judicial officer including adequate knowledge of case law and; (II) Evaluation of the continued efficiency of the individual candidates - The four components of the Suitability Test as prescribed under the recruitment notice dated 12. 04.

2022 comprehensively evaluate (i) the legal knowledge including knowledge of the case law through the objective MCQ-based written test AND (ii) the continued efficiency by evaluation of the ACRs, average disposal and past judgments of the concerned judicial officer - The impugned final Select List dated 10. 03. 2023 is not contrary to the principle of 'Merit-cum-Seniority' as stipulated in Rule 5(1)(I) of the 2005 Rules. [Paras 141D, 141E, 143] Case Law Cited All India Judges' Association (3) v. Union of India & Ors. [2002] 2 SCR 712 : (2002) 4 SCC 247; Mohammed Ishaq v. S. Kazam Pasha & Anr. [2009] 7 SCR 1098 : (2009) 12 SCC 748; Maharashtra State Judicial Service Assn. & Ors. v. High Court of Judicature at Bombay & Ors. [2002] 1 SCR 1125 : (2002) 3 SCC 244; Malik Mazhar Sultan & Anr. (1) v. U. P. Public Service Commission [2023] 12 SCR 682 : (2006) 9 SCC 507; All India Judges' Association (4) v. Union of India (2010) 15 SCC 170; Malik Mazhar Sultan & Anr. (3) v. U. P.

Public Service Commission & Ors. (2009) 17 SCC 530; State of Kerala & Anr. v. N. M. Thomas & Ors. [1976] 1 SCR 906 : (1976) 2 SCC 310; Jagathigowda, C. N. & Ors. v. Chairman, Cauvery Gramina Bank & Ors. [1996] Suppl. 4 SCR 190 : (1996) 9 SCC 677; Rajendra Kumar Srivastava & Ors. v. Samyut Kshetriya Gramin Bank & Ors. [2009] 15 SCR 936 : (2010) 1 SCC 335; B. V. Sivaiah & Ors. v. K. Addankl Babu & Ors. [1998] 3 SCR 782 : (1998) 6 SCC 720; K. Samantaray v. National Insurance Co. Ltd. [2003] Suppl. 3 SCR 669 : (2004) 9 SCC 286; Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya Gramin Bank & Ors. [2006] Supp. 8 SCR 760 : (2006) 12 SCC 574; Shriram Tomar & Anr. v. Praveen Kumar Jaggi & Ors. [2019] Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 6 SCR 590 : (2019) 5 SCC 736; Madan Mohan Choudhary v. State of Bihar [1999] 1 SCR 596 : (1999) 3 SCC 396; High Court of Judicature for Rajasthan v. P. P. Singh & Anr. [2003] 1 SCR 593 : (2003) 4 SCC 239 - relied on.

Sujata Kohli v. Registrar General, High Court of Delhi and Ors. [2020] 9 SCR 361 : (2020) 14 SCC 58; Dr. Kavita Kamboj v. High Court of Punjab and Haryana & Ors. [2024] 2 SCR 1136 : (2024) SCC OnLine SC 254; Rupa Rani Rakshit & Ors. v. Jharkhand Gramin Bank [2009] 15 SCR 1133 : (2010) 1 SCC 345; All India Judges' Association (1) v. Union of India [1991] Suppl. 2 SCR 206 : (1992) 1 SCC 119; All India Judges' Association (2) v. Union of India [1993] Supp. 1 SCR 749 : (1993) 4 SCC 288; High Court of Calcutta v. Amal Kumar Roy [1963] 1 SCR 437; K. K. Parmar v. High Court of Gujarat [2006] Supp. 2 SCR 565 : (2006) 5 SCC 789; Kartar Kaur v. State (1967) SLR 34; State of Mysore v. Syed Mahmood [1968] 3 SCR 363; Central Council for Research in Ayurveda and Siddha and Anr. v. Dr. K. Santhakumari [2001] 3 SCR 519 : (2001) 5 SCC 60; Union of India and Ors. v. Lt. Gen. Rajendra Singh Kadyan & Anr. [2000] Supp. 1 SCR 722 : (2000) 6 SCC 698; State of U. P. v. Jalal Uddin & Ors. [2004] Supp.

5 SCR 92 : (2005) 1 SCC 169; Haryana State Electronics Development Corporation Ltd. & Ors. v. Seema Sharma & Ors. [2009] 7 SCR 662 : (2009) 7 SCC 311; Palure Bhaskar Rao & Ors. v. P. Ramaseshaiah & Ors. [2017] 3 SCR 226 : (2017) 5 SCC 783; State of Mysore v. C. R. Seshadri & Ors. [1974] 3 SCR 87 : AIR 1974 SC 460; Ambica Quarry Works v. State of Gujarat [1987] 1 SCR 562 : (1987) 1 SCC 213; Bharat Petroleum Corporation Ltd. v. NR Vairamani [2004] Supp. 4 SCR 923 : (2004) 8 SCC 579; Municipal Corporation Delhi v. Mohd Yasin [1983] 2 SCR 999 : (1983) 3 SCC 229; Thampanoor Ravi v. Charupara Ravi [1999] Supp. 2 SCR 419 : (1999) 8 SCC 74 - referred to. R. v. Inland Revenue Commissioners, ex parte M. F. K Underwriting Agents Ltd. [1990] 1 WLR 1545 referred to. Books and Periodicals Cited Shetty Commission on Judicial Reforms; First Law Commission of India (14th Report in the year 1958); Henry Campbell Black, Black's Law Dictionary, p. 1528 (6 th Edn. , 1968); H. Gerth and C. W.

Mills, From Max Weber: Essays in Sociology, 199, 202 (Oxford University Press, New York, 1958); H. Eliot Kaplan, The 1082 Law of Civil Services (New York University Press, Mathew Bender & Company, New York, 1958); Elman, B. A. , Political, social, and cultural reproduction via civil service examinations in late imperial China, 50(1) Journal of Asian Studies, pp. 7-28 (1991); Jenifer Hart, The genesis of the Northcote - Trevelyan report, in Studies in the growth of nineteenth century government pp. 63-81 (Ed. Gillian Sutherland, Routledge & Kegan Paul, London, 1972); Kaplan, N. I. , A changing culture of merit: French competitive examinations and the politics of selection, pp. 1750-1820 (Columbia University Press, 1999); The Macaulay Committee's Report on the Indian Civil Service 1854; History of the Commission, Union Public Service Commission; S. REP. No. 969; recited from O'Rourke, 1993, p. 344 - referred to.

List of Acts Constitution of India; Gujarat State Judicial Service Rules, 2005.

List of Keywords Merit; Seniority; Promotion; Promotion process; Article 32 of the Constitution; Article 226 of the Constitution; Efficacious alternative remedy; Rule of self-restraint; Interpretation of rules; Issue having far-reaching effect; Discretion of the Court; Legislative History and Scheme of the Gujarat State Judicial Service Rules, 2005; Rule 5(1) of the Gujarat State Judicial Service Rules, 2005; Rule 5(3) of the Gujarat State Judicial Service Rules, 2005; Modes of recruitment; Principle of Merit-cum-Seniority; Principle of Seniority-cum-Merit; Article 235 of the Constitution; High Court as a custodian of the District Judiciary; Twin requirements stipulated in All India Judges' Association (3); Suitability test; Basis of suitability test; Objective assessment of legal knowledge; Evaluation of the continued efficiency; Enhancing the minimum specified threshold of marks in suitability test; Interview or Viva Voce in suitability test; Evaluation of judgments delivered by the judicial officer in suitability test; Marks for seniority at the stage of suitability test; 65% promotion on the basis of 'Merit-cum-Seniority'; 10% promotion strictly on the basis of merit; Statutory rules governing the promotion or any promotion policy.

Case Arising From CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 432 of 2023 (Under Article 32 of The Constitution of India) Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. Appearances for Parties R. Basant, P. S. Patwalia, Sr. Advs. , Vivek Jain, Ms. Suchitra Kumbhat, Akshay Sahay, Kishan Chakawala, Rajat Jain, Sadiq Noor, Mehul Prasad, Purvish Jitendra Malkan, Advs. for the Petitioners. V. Giri, Dushyant Dave, Shyam Divan, Sr. Advs. , Ms. Vishakha, Ms. Vishwaja Rao, Shashank Shekhar Singh, Akshat Malpani, Ms. Ayushi Gaur, Sandeep Kumar Jha, Ms. Mayuri Raghuvanshi, Vyom Raghuvanshi, Ms. Akanksha Rathore, Puneet Jain, Ms. Deepanwita Priyanka, Jayesh Gaurav, Monarch K. Pandya, Ishwar Chandra Roy, Ms. Diksha Ojha, Ranjan Nikhil Dharnidhar, Ms. Nidhi Khanna, Sudipto Sircar, Rajeev Kumar Bansal, Madan Lal Daga, Parvinder, Shekher Kaushik, Ganesh Barowalia, Vidya Sagar, Rajesh Sonthalia, Kamal Mohan Gupta, Aditya Choksi, Arpit Gupta, Advs. for the Respondents.

Judgment / Order of the Supreme Court Judgment J. B. Pardiwala, J. For the convenience of exposition, this judgment is divided in the following parts: - INDEX* A. FACTUAL MATRIX ................................................................. 3 i. Method of Promotion followed by the High Court of Gujarat ............................................................................... 10 B. REFERENCE ORDER .......................................................... 12 C. SUBMISSIONS ON BEHALF OF THE PETITIONERS .......... 14 D. SUBMISSIONS ON BEHALF OF THE HIGH COURT .......... 16 E. SUBMISSIONS ON BEHALF OF THE PROMOTED CANDIDATES ......................................................................... 17 F. POINTS FOR DETERMINATION ........................................... 20 G. ANALYSIS .............................................................................. 20 i.

Maintainability of the present Writ Petition under Article 32 ........................................................................... 20 * Ed. Note: Pagination as per the original Judgment. 1084 ii. The Legislative History and Scheme of the Gujarat State Judicial Service Rules, 2005 ............................... 23 a. Shetty Commission on Judicial Reforms and the Decision of this Court in All India Judges' Association (3) ................................................................................ 23 b. Relevant Statutory Provisions of the Gujarat State Judicial Service Rules, 2005 ...................................... 34 iii. Evolution of the Principles of 'Merit-cum-Seniority' and 'Seniority-cum- Merit' in Service Jurisprudence 38 a. Concept of Promotion: The meaning and origin of seniority and merit as parameters .............................. 38 b. Principle of 'Merit-cum-Seniority' and 'Seniority-cum- Merit' in Service Jurisprudence ...................................

44 c. 'Hybrid-Dynamic Mode of Promotion' in Service Jurisprudence ............................................................... 56 d. High Court as a custodian of the District Judiciary under Article 235 of the Constitution .......................... 64 iv. What is 'Merit-cum-Seniority' for the purpose of Promotion to the cadre of District & Sessions Judges? 67 a. Intention behind the decision in All India Judges' Association (3) .............................................................. 67 H. FEW SUGGESTIONS TO MAKE THE SUITABILITY TEST MORE MEANINGFUL ............................................................ 80 I. CONCLUSION ........................................................................ 81 1. Two judicial officers of the rank of Civil Judge (Senior Division) governed by the Gujarat State Judicial Service Rules, 2005 (for short, the "2005 Rules") have invoked the jurisdiction of this Court under Article 32 of the Constitution.

Their grievance against the High Court of Gujarat is that it erroneously applied the principle of 'Seniority-cum-Merit' in the recruitment undertaken by it in the year 2022 for promotion of Civil Judges (Senior Division) to the post of Additional District Judge against 65% quota, though Rule 5(1) of the 2005 Rules stipulates that the promotion shall be based on the principle of 'Merit-cum-Seniority'. In other words, it is contended that the High Court wrongly subjected all eligible candidates in the feeder cadre i. e. , Civil Judge (Senior Division) to a process of assessment of a specified level of minimum merit and then proceeded to prepare Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. the final Select List strictly in accordance with the seniority of the candidates. This according to the petitioners is nothing but 'Seniority- cum-Merit'. A. FACTUAL MATRIX 2. The High Court of Gujarat issued an advertisement/recruitment notice dated 12. 04.

2022 notifying a total of 68 vacancies in the cadre of District Judges for promotion of Civil Judges (Senior Division) against the 65% quota on the basis of 'Merit-cum-Seniority' and passing a Suitability Test as envisaged under Rule 5(1)(I) of the 2005 Rules. The said advertisement/recruitment notice reads as under: - "HIGH COURT OF GUJARAT AT SOLA, AHMEDABAD ojas. gujarat. gov. in NO. RC/1250/2022 RECRUITMENT NOTICE - DISTRICT JUDGE (65%) PROMOTION TO THE CADRE OF DISTRICT JUDGE (65%) FROM AMONGST THE SENIOR CIVIL JUDGES ON THE BASIS OF PRINCIPLE OF MERIT-CUM-SENIORITY AND PASSING A SUITABILITY TEST. 1. VACANCIES AND PAY-SCALE : (i) In view of the guidelines of the Hon'ble Supreme Court in the case of Malik Mazhar Sultan & Anr. Vs. UP Public Service Commission & Ors.

and The Gujarat State Judicial Service Rules, 2005, as amended from time to time, The High Court of Gujarat has decided to fill up 68 (53+15) vacancies in the cadre of District Judges (65%) by promotion from amongst us the Senior Civil Judges (including ad-hoc Additional District Judges) having not less than two years of qualifying service in that cadre as on 25/03/2022, in the pay-scale of Rs. 51650-63260 plus Allowances as admissible under the Rules. *15 unfilled vacancies of 10% quota of year-2020 are to be filled up by regular promotion in view of 1086 Judgment dated 09. 12. 2021 of the High Court of Gujarat (Coram: - Honourable Ms. Justice Sonia Gokani and Honourable Mr. Justice Rajendra M. Sareen delivered in SCA/7915/2020 with SCA/13631 & 13458/2020 and by operation of proviso to Rule 5(1)(ii) of the Gujarat State Judicial Service Rules, 2005 amended by Notification dated 23. 06. 2011. (ii) The High Court reserves its right to alter the number of vacancies.

(iii) The List showing eligible Senior Civil Judges (including ad-hoc Additional District Judges) included in the zone of consideration for being considered for promotion to the cadre of District Judges (65%) is placed on the High Court website and HC-OJAS Portal along with this Notice. 2. SCHEME FOR PROMOTION : Following are the Four Components for assessing the suitability of a Judicial Officer for promotion. Sr. Components of Suitability Test Marks No 1. Written Test (Objective Type - MCQs) 100 2. Examination and Evaluation of Annual 20 Confidential Reports for last five years 3. Assessment of Average Disposal of 20 last five years of the Judicial Officer concerned. 4. Evaluation of Judgments delivered by 60 the Judicial Officer concerned during the period of last one year. * *Due to unprecedented time of COVID-19 pandemic in Year 2020 & 2021, the Subordinate Courts in the state were not functioning regularly.

Hence, this time round, the Hon'ble Committee has decided for the instant Promotion Process to call upon the requisite Four Judgments rendered by the Officer concerned during the period between 01/01/2020 to 31/12/2021. However, this should not be treated as a precedent in upcoming Promotion Process. Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 3. Written Test (Objective Type - MCQs) : (i) The Written Test (Objective Type - MCQs) shall consist of 01 (One)Paper of 100 Marks of duration of 02 Hours consisting of Objective Type Multiple Choice Questions (MCQs) each of 01 Mark. There will be no Negative marking system. The subject would be as under: Sr. No Subject Marks 1. Legal Knowledge [Detailed Syllabus 50 attached herewith at Annexure-'A'] 2. Administrative Knowledge [GCS Rules 25 2002, Civil Manual, Criminal Manual, etc. ] 3. General Knowledge & Aptitude Test [Test 25 of Reasoning, Numerical & Mental Ability & Psychological Test, etc.

] (ii) The Written Test (Objective Type - MCQs) shall be conducted on OMR Sheet* or by any other mode that would be decided by the High Court later on. *The OMR Sheets of the Written Test (Objective Type - MCQs) will be assessed/evaluated by the Computer as per entries made on OMR Sheet. As the evaluation is being done on the Computer by Scanning, there is no human intervention and hence, queries relating to rechecking of the OMR Sheets, subsequent to the Written Test (Objective Type - MCQs), will not be entertained by the High Court (iii) The Language of the Question Paper will be English. (iv) Out of the abovementioned Four Components of Suitability Test, the Written Test (Objective Type - MCQs) will be conducted first. Nonetheless mere passing of Written Test (Objective Type - MCQs) by the Judicial Officers would not give him/her right of having secured the position in the Select List. It will be subject to passing of other 03 (Three) components as well.

(v) ACR, Disposal and Judgments of only those Judicial Officers who will secure minimum 40% Marks in Written Test (Objective Type - MCQs), will be called for after the declaration of the result of Written Test (Objective Type - MCQs). 1088 4. ELIGIBILITY FOR PROMOTION : The Judicial Officer, who obtains minimum 40% Marks in each Component and minimum 50% Marks in aggregate in the Grand Total of all Four Components, shall be eligible for being included in the Select List for promotion. 5. GENERAL INSTRUCTIONS : (i) The date and venue of the Written Test (Objective Type - MCQs) will be declared by the High Court in due course. (ii) The eligible Judicial Officers may download their aforesaid websites. (iii) The Judicial Officer attending the Written Test (Objective Type - MCQs) may be treated as on duty and may be admissible for TA/DA as applicable.

(iv) Result of the Written Test (Objective Type - MCQs) will be made available on the High Court websites and/or by any other mode that may be decided by the High Court. (v) The Marks of Written Test (Objective Type - MCQs) would be communicated to all the Judicial Officers, whereas, the Marks of other 03 Components along-with the Total Marks obtained by the concerned, would be provided to only those who qualify in the Written Test (Objective Type - MCQs). Such Marks shall be communicated by providing a link to a webpage on the HC-OJAS Portal with individual password (OTP - One Time Password) via SMS on his/her Registered Mobile Number, after the conclusion of the Selection Process High Court of Gujarat, Sola, Ahmedabad - 380 060. Date: 12/04/2022 Sd/- Registrar (Recruitment and Finance) Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors.

Syllabus For the LEGAL KNOWLEDGE of the Written Test (Objective Type - MCQs) : (a) ͢ The Constitution of India͢ The Code of Civil Procedure, 1908,͢ The Transfer of Property Act, 1882,͢ The Specific Relief Act, 1963,͢ The Indian Partnership Act, 1932,͢ The Indian Contract Act, 1872,͢ The Sale of Goods Act, 1930,͢ The Limitation Act, 1963,͢ The Arbitration and Conciliation Act, 1996,͢ The Motor Vehicles Act, 1988,͢ The Commercial Courts Act, 2015͢ The Family Courts Act, 1984,͢ The Environment (Protection) Act, 1986,͢ The Wild Life (Protection) Act, 1972,͢ The Indian Penal Code, 1860,͢ The Code of Criminal Procedure, 1973,͢ The Indian Evidence Act, 1872,͢ The Narcotic Drugs & Psychotropic Substances Act, 1985, ͢ The Negotiable Instruments Act, 1881,͢ The Protection of Children from Sexual Offence Act, 2012, ͢ The Juvenile Justices (Care & Protection of Children) Act, 2015, ͢ The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, ͢ The Prevention of Corruption Act, 1988 1090͢ The Electricity Act, 2003,͢ The Protection of Women from Domestic Violence Act, 2005 ͢ The Immoral Traffic (Prevention) Act, 1956͢ The Information Technology Act, 2000͢ The Indecent Representation of Women (Prohibition) Act, 1986 (b) Legal Maxims (c) Medical Jurisprudence (d) Jurisprudence and Legal Phraseology" 3.

The High Court along with the aforesaid advertisement/recruitment notice, also issued a list of 205 judicial officers in the cadre of Civil Judge (Senior Division) i. e. , the feeder cadre, falling under the 'Zone of Consideration' for the aforesaid purpose of filling up the vacancies in the cadre of District Judges as against 65% quota. 4. The High Court prepared the list of 205 candidates falling within the zone of consideration by including the senior-most Civil Judges (Senior Division) not exceeding three-times the notified vacancies. In other words, the zone of consideration only included the 205 senior-most Civil Judges (Senior Division). 5. As per the advertisement/recruitment notice dated 12. 04. 2022, the suitability of the aforesaid 205 candidates falling within the zone of consideration, for the purpose of promotion, was to be assessed on the basis of four components which are being reproduced hereunder: - Sr. No. Components of Suitability Test Marks 1.

Written Test (Objective Type - MCQs) 100 2. Examination and Evaluation of Annual Confidential 20 Reports for last five years. 3. Assessment of Average Disposal of last five years 20 of the Judicial Officer concerned. 4. Evaluation of Judgments delivered by the Judicial 60 Officer concerned during the period of last one year. Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 6. The aforesaid advertisement/recruitment notice dated 12. 04. 2022 further stipulated that all those judicial officers who obtain a minimum 40% marks in each of the abovementioned component and a minimum aggregate of 50% marks in all four components shall be eligible for being included in the Select List for promotion. 7. Pursuant to the aforesaid, the Written Test (Objective Type - MCQs) was conducted by the High Court and out of 205 candidates, a total of 175 judicial officers cleared the written test i. e. , all those who were able to secure a minimum of 40% marks.

Thereafter, the High Court called for the month-wise list of the judgments disposed of and the annual confidential reports (ACRs) of all 175 candidates who qualified. 8. After the evaluation of the ACRs, judgments and disposal rates, a total of 149 judicial officers were found to be eligible for promotion as they had secured a minimum 40% marks in each of the abovementioned component and a minimum aggregate of 50% marks in all the four components of the suitability test. 9. The High Court thereafter proceeded to prepare the final Select List dated 10. 03. 2023 wherein the seniormost 68 candidates amongst the aforementioned 149 eligible candidates were given promotion to the post of District Judge. 10. In such circumstances referred to above, the petitioners are here before this Court with the present petition under Article 32 of the Constitution. i. Method of Promotion followed by the High Court of Gujarat. 11.

For the better adjudication of the issues involved in the case at hand, it would be necessary to delineate the step-wise process of promotion undertaken by the High Court of Gujarat for the purpose of preparing the final Select List. 12. The process, as explained by the High Court in its counter affidavit and additional affidavit is as under: - 1. Total number of Civil Judges (Senior Division) in 444 Gujarat. 2. Civil Judges (Senior Division) who fulfilled the eligibility 417 criteria of a minimum of two-years of qualifying service. 1092 3. Senior-most of the Civil Judges (Senior Division) falling 205 under the zone of consideration as per 1:3 ratio. 4. Civil Judges (Senior Division) who appeared for the 198 Suitability Test (MCQ's with no negative marking). (Seven candidates chose not to appear for the suitability test) 5. Civil Judges (Senior Division) who secured 40% marks 175 in the Suitability Test (MCQs with no negative marking). 6.

Total number of Civil Judges (Senior Division) who 149 secured total of 50% marks and a minimum 40% marks in all four components being the Written Test, evaluation of ACRs, assessment of average disposal and evaluation of Judgments. 7. Select List as per the notified vacancy prepared on 68 the basis of seniority. B. REFERENCE ORDER 13. The present writ petition was earlier heard by a two-Judge Bench of this Court wherein it was prima facie observed that in All India Judges' Association (3) v. Union of India & Ors. reported in (2002) 4 SCC 247 whileemphasizing on the need for merit-based criteria for promotion in the cadre of Higher Judicial Service, this Court had held that the promotion to the post of District Judge shall be on the basis of 'Merit-cum-Seniority'. 14. This Court further observed that the principle of 'Merit-cum-Seniority' lays greater emphasis on merit, and seniority plays a less significant role.

Therefore, seniority should be considered only when merit and ability are equal. 15. This Court prima facie opined that the final Select List dated 10. 03. 2023 could be said to be in contravention of the principle of 'Merit-cum-Seniority' as envisaged in the rules and the decision in All India Judges' Association (3)(supra). However, in view of the importance of the matter and the observations made in All India Judges' Association (3) (supra), the matter was referred to the Bench of Hon'ble the Chief Justice of India. The relevant observations read as under: - Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. "8. 1 It is also required to be noted that even as per the Recruitment Notice - District Judge (65%), the promotion to the cadre of District Judge (65%) from amongst the Senior Civil Judges shall be on the basis of principle of merit-cum-seniority and passing a suitability test.

The suitability of a judicial officer for promotion is also provided in the Recruitment Notice, which consists of four components reproduced hereinabove. Thus, as per the statutory Rules and even as per the Recruitment Notice, the promotion to the cadre of District Judge (65%) shall be on the basis of principle of merit-cum-seniority and passing a suitability test. At this stage, it is required to be noted that the Rules, 2005 further amended in the year 2011, have been framed by the High Court pursuant to the directions issued by this Court in the case of All India Judges' Association and Ors. (supra). It is required to be noted that prior to the decision of this Court in the case of All India Judges' Association and Ors. (supra), the promotion in the cadre of Higher Judicial Service, i. e. , District Judges and Additional District Judges were given on the basis of principle of seniority-cum- merit.

Emphasising the need for merit-based criteria for promotion in the cadre of Higher Judicial Service, i. e. , District Judges and Additional District Judges [... ] xxxxxxxxx 8. 8 The law on the principle of "merit-cum-seniority is by now, settled by this Court in a catena of decisions. As observed, while applying the principle of "merit-cum- seniority", greater emphasis is given on merit and ability and seniority plays a less significant role. As observed, while applying the principle of "merit-cum-seniority", the seniority is to be given weight only when merit and ability are approximately equal. xxxxxxxxx 9. Thus, we are more than satisfied that the impugned Select List dated 10. 03. 2023 issued by the High Court and the subsequent Notification dated 18. 04.

2023 issued by the State Government granting promotion 1094 to the cadre of District Judge are illegal and contrary to the relevant Rules and Regulations and even to the decision of this Court in the case of All India Judges' Association and Ors. (supra). Therefore, we are more than prima facie satisfied that the same as such are not sustainable. Though, we were inclined to dispose of the writ petition finally, however, as Shri Dushyant Dave, learned Senior Advocate appearing on behalf of some of the respondents - promotees has prayed not to dispose of the writ petition finally and, therefore, may consider the question of interim relief, we are not disposing of the writ petition finally. [... ] 10. Looking to the importance of the matter and the observations made by this Court in the case of All India Judges' Association and Ors.

(supra), pursuant to which the High Court has amended the Rules and the Regulations, we are of the opinion that let the matter be heard by the Bench headed by Hon'ble the Chief Justice of India, however, subject to and after obtaining appropriate orders from the Hon'ble the Chief Justice of India on the administrative side. The Registry is directed to notify the present writ petition for final hearing on 08. 08. 2023. " (Emphasis supplied) 16. Accordingly, the present writ petition came to be referred to this Bench and was accordingly taken up for hearing. C. SUBMISSIONS ON BEHALF OF THE PETITIONERS 17. Mr. P. S. Patwalia, learned Senior Counsel appearing for the petitioners submitted that the statutory rules as well as the decision in All India Judges' Association (3)(supra)stipulate that promotion to the cadre of District Judges against the 65% quota has to be on the basis of the principle of 'Merit-cum-Seniority'.

Although the High Court has used the nomenclature 'Merit-cum-Seniority' yet the method ultimately followed for the purpose of promotion to the cadre of District Judge is nothing but 'Seniority-cum-Merit'. 18. He further submitted that the High Court in its methodology subjected all eligible candidates in the feeder cadre to a process of assessment of a specified minimum necessary merit and then proceeded to Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. promote the candidates found possessing the minimum requisite merit strictly in the order of seniority. He submitted that the said method is nothing but 'Seniority-cum-Merit'. 19. Finally, Mr. Patwalia submitted that where promotion is on the basis of 'Merit-cum-Seniority', seniority has to be considered only in the event merit is equal in all respects. In other words, seniority should be considered only if there is a tie between the candidates on their individual merit. 20. Mr. R.

Basant, learned Senior Counsel submitted that in the procedure that came to be followed by the High Court for promotion, seniority has been applied and given effect twice - once at the stage of preparation of the zone of consideration and then again at the stage of preparing the final Select List. 21. He further submitted that by applying seniority at the last stage of preparing the final Select List, the principle of 'Merit-cum-Seniority' has been given a go-by and instead 'Seniority-cum-Merit' has been applied. 22. He also submitted that in cases of promotion on the principle of 'Merit-cum-Seniority', there is always an element of comparative merit and the promotion must be as per the inter-se merit of the persons who obtained the minimum marks. In this regard, strong reliance has been placed on the decisions of this Court in Rupa Rani Rakshit & Ors. v. Jharkhand Gramin Bankreported in (2010) 1 SCC 345 and in Dr. Kavita Kamboj v. High Court of Punjab and Haryana & Ors.

reported in 2024 SCC OnLine SC 254. 23. He further submitted that 'Merit-cum-Seniority' is not a vague literary term, but carries a specific meaning in service jurisprudence. He submitted that the decision in All India Judges' Association (3) (supra) consciously substituted the earlier criteria of 'Seniority-cum- Merit' with 'Merit-cum-Seniority'. 24. In the last, Mr R. Basant submitted that this Court in a plethora of its decisions has consistently held that where a minimum benchmark is laid down and candidates having secured the minimum required marks are promoted on the basis of the seniority irrespective of the individual marks secured by them, it is an instance of 'Seniority- cum-Merit'. 1096 D. SUBMISSIONS ON BEHALF OF THE HIGH COURT 25. Mr. V. Giri, learned Senior Counsel appearing for the High Court of Gujarat submitted that 'Merit-cum-Seniority' should not be conflated with Merit and that there is a clear distinction between the two concepts.

He submitted that whilst merit is concerned only with the grade/credit of the candidate, the former not only checks the merit but also lays emphasis on seniority. 26. He submitted that if the interpretation of 'Merit-cum-Seniority' as canvassed by the petitioners is accepted, then the entire process of promotion would become solely based on merit and the aspect of seniority would be completely obliterated from the principle of 'Merit-cum-Seniority'. 27. He further submitted that doing so would have a far-reaching effect. The same would result in an amalgamation of the promotion process against 65% posts on the basis of 'Merit-cum-Seniority' and the process against 10% posts on the basis of strict merit in the cadre of District Judges and would completely do away with the fine distinction between the two modes of promotion. 28. Finally, Mr. Giri submitted that the High Court has been following the same methodology since 2011. E. SUBMISSIONS ON BEHALF OF THE PROMOTED CANDIDATES 29. Mr.

Dushyant Dave, learned Senior Counsel appearing for judicial officers who found place in the final Select List submitted that the writ petition under Article 32 ought not to be entertained as the petitioners have an alternative efficacious remedy of filing a writ petition under Article 226 of the Constitution before the High Court. 30. He submitted that in All India Judges' Association (3)(supra) the principle of 'Merit-cum-Seniority' and Suitability Test was provided only to objectively ascertain a minimum standard of merit for the purpose of promotion to the Higher Judicial Services in the cadre of District & Sessions Judge. 31. Mr. Dave submitted that merely having scored a few marks more than the other candidates is neither an indication of being tangibly more meritorious nor a cogent reason to completely negate the length of service of the senior candidates. He submitted that if the Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors.

interpretation as canvassed by the petitioners is accepted, it would cause undue hardship and result in unjust treatment to his clients whose names were included in the final Select List, as they would end up losing their precious years of seniority in service only on account of having obtained a few marks lesser compared to the petitioners. 32. Ms. Mayuri Raghuvanshi, learned Counsel appearing for some of the respondents submitted that the principle of 'Merit-cum-Seniority' does not mean that the length of service or seniority has no relevance. She submitted that the marks secured in the written examination and other tests are not indicative of merit as the marks may be obtained even without possessing other important qualities such as practical experience or by cramming. 33.

She further submitted that the various decisions on the principle of 'Merit-cum-Seniority' as relied upon by the petitioners do not deal with judicial services and have not been delivered in the context of promotion of Civil Judges (Senior Division) to the cadre of District Judge. It was submitted that 'Merit-cum-Seniority', as stipulated in the 2005 Rules, should be read in line with the observations in All India Judges' Association (3)(supra). 34. Learned counsel further submitted that the reliance placed by the petitioners on the process of promotion followed by the High Court of Jharkhand and High Court of Calcutta is absolutely misplaced, as the statutory rules therein are not pari-materia to the 2005 Rules. 35. Finally, Ms. Raghuvanshi submitted that her clients whose names have been included in the final Select List, had also participated in the promotion process undertaken in the year 2020.

Although her clients had scored higher marks compared to the other candidates in the 2020 recruitment process, yet they were not promoted as they were comparatively junior to the other officers. She submitted that the process which was followed by the High Court applying the principle of 'Merit-cum-Seniority' has been followed consistently since 2011. She submitted that deviating from the process as followed by the High Court will result in inequitable and unjust repercussions, as her clients who lost out on promotions in the previous recruitment process because of being relatively junior would again end up losing out on their promotions in this process despite being relatively senior. 1098 F. POINTS FOR DETERMINATION 36. Having heard the learned counsels appearing for the parties and having gone through the materials on record, the two pivotal questions that fall for our consideration are as under: - I.

What is the scope of principle of the 'Merit-cum-Seniority' in service jurisprudence; and II. Whether promotion of Civil Judges (Senior Division) to the cadre of District Judges in accordance with Rule 5(1) of the 2005 Rules and the Recruitment Notice dated 12. 04. 2022 issued by the High Court of Gujarat is contrary to the principle of 'Merit- cum-Seniority' as laid down in All India Judges' Association (3)(supra). G. ANALYSIS i. Maintainability of the present Writ Petition under Article 32. 37. At the outset, a preliminary objection was raised as regards the maintainability of the writ petition under Article 32 of the Constitution, on the ground that the petitioners have an efficacious alternative remedy available to them under Article 226 of the Constitution. 38. In Mohammed Ishaq v. S. Kazam Pasha & Anr.

reported in (2009) 12 SCC 748 this Court held that where Article 32 has been invoked, even where an alternative remedy exists, relegating the parties to avail the same is discretionary and a matter of convenience, and the same by no stretch restrains this Court to entertain the same. The relevant observations read as under: - "23. On the preliminary issue of maintainability of the present writ petition, it is well-settled position of law that simply because a remedy exists in the form of Article 226 of the Constitution for filing a writ in the High Court concerned, it does not prevent or place any bar on an aggrieved person to directly approach the Supreme Court under Article 32 of the Constitution. It is true that the Court has imposed a self-restraint in its own wisdom on the exercise of jurisdiction under Article 32 where the party invoking the jurisdiction has an effective, adequate alternative remedy in the form of Article 226 of the Constitution.

However, this Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than a rule of law. At any rate it does not oust the jurisdiction of this Court to exercise its writ jurisdiction under Article 32 of the Constitution. We, therefore, reject the preliminary objection raised and proceed to examine the contentions raised in the writ petition on merits. " (Emphasis supplied) 39. In Maharashtra State Judicial Service Assn. & Ors. v. High Court of Judicature at Bombay & Ors. reported in (2002) 3 SCC 244 this Court held that where the issue pertained only to the interpretation of the relevant rules and there was no dispute as regards the facts of the case by either side, the same could be entertained under Article 32 even though the alternative remedy under Article 226 was available. The relevant observations read as under: - "1. [...

] On behalf of the direct recruit respondents, a preliminary objection had been taken by Shri M. L. Verma that the dispute being one of inter se seniority within a cadre, the Court ought not to entertain a petition under Article 32, as the parties were entitled to approach the High Court under Article 226 against the administrative decision of the Bombay High Court. We have no doubt in our mind that an administrative decision of the Court could be assailed by filing a writ petition under Article 226 in the High Court itself, but this Court having entertained the petition under Article 32 by issuing rule on 8-12-2000 and the dispute being one which centres around interpretation of the relevant Rules and both the direct recruits and the promotees having made their stand known, and further, no disputed question on facts having arisen, we do not think it appropriate to direct the promotees to approach the High Court in the first instance.

We, therefore, heard the parties at length on the merits of the matter. " (Emphasis supplied) 40. From the aforesaid, it is clear that the availability of an alternative remedy does not in any manner affect the maintainability of the writ 1100 petition under Article 32 of the Constitution. The rule behind relegating a party to first avail the alternative remedy before knocking the doors of this Court is a rule of self-restraint that is exercised by this Court as a matter of convenience. 41. Further, wherever the facts of the case are not in dispute, and the issue involves the interpretation of rules which are of significant importance having a far-reaching effect, it would be a fit case for this Court to exercise its discretion and entertain the writ petition under Article 32 even if there is an alternative remedy available. 42.

It is contended by the petitioners that they had to come before this Court invoking Article 32 of the Constitution instead of Article 226 because the impugned final Select List dated 10. 03. 2023 which is the subject matter of challenge had been ratified by the High Court in its Full Court meeting. We are not impressed with such a submission as the High Court on its judicial side can always review any decision or action taken by it on its administrative side. It would be erroneous to say that if any decision taken by the High Court on its administrative side is ultimately challenged on any legal ground on its judicial side, then the High Court may not undertake judicial review of such administrative decision dispassionately. 43. In the present case, the facts are not in dispute either at the end of the petitioners herein or at the end of the High Court or the respondents.

Moreover, since the issues involve not just the interpretation of Rule 5(1)(I) of the 2005 Rules but also the decision of this Court in All India Judges' Association (3)(supra), we are of the considered opinion that the petition under Article 32 deserves to be entertained. ii. The Legislative History and Scheme of the Gujarat State Judicial Service Rules, 2005. a. Shetty Commission on Judicial Reforms and the Decision of this Court in All India Judges' Association (3). 44. The subject matter of the controversy with which we are concerned in the present litigationis with regard to the scheme and policy for promotions in the Higher Judicial Services, particularly to the cadre of Additional District & Sessions Judge. The genesis of the same can be traced back to the decision of this Court in All India Judges' Association (3)(supra). Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 45. The First Law Commission of India under the Chairmanship of Shri M. C.

Setalvad in its 14th Report in the year 1958 expressed concerns over the growing problem of finding capable and competent judicial officers for the District Judiciary. It reported that most of the difficulties brought to the notice of the Commission had their origin in the inefficiency or inexperience of the judicial personnel on account of the falling standards in their recruitment. The relevant observations read as under: - "2. Subordinate Judiciary Personnel 2. As has been said repeatedly elsewhere, the problem of efficient judicial administration, whether at the level of the superior courts or the subordinate courts, is largely the problem of finding capable and competent judges and judicial officers. Delays in the disposal of cases and the accumulation of arrears are in a great measure due to the inability of the judicial officers to arrange their work methodically and to appreciate and apply the provisions of the Procedural Codes. [... ] xxx xxx xxx 4.

As we shall point out later, the problem has since grown in dimensions, because there is unmistakable testimony that the standards of the judicial officers recruited from the bar and other sources have, during recent years, fallen in a substantial degree for various reasons. That has been almost the unanimous view expressed by the witnesses before us. It is thus obvious that no scheme of reform of judicial administration will be effective or worth- while, unless the basic problem of providing trained and capable judicial personnel is satisfactorily solved. Before we can suggest adequate measures for raising the level of judiciary, we have to examine the causes which have led to the decline in its efficiency. " (Emphasis supplied) 46. Accordingly, the Law Commission made a slew of recommendations in order to deal with the afore-stated problems.

The Law Commission, inter-alia, recommended devising a more robust mechanism for 1102 recruitment and in-service training of judicial officers with a view to improve their calibre. It further recommended that a third source of recruitment to the Higher Judiciary i. e. , the cadre of District & Sessions Judge, should be created. It stated that this third category should be recruited purely by way of a competitive examination, and recruitment through the existing two categories i. e. , by promotion and from the Bar should continue as per the existing process. The Law Commission was of the view that the new avenue as recommended would enlarge the field of selection and bring in Judicial Officers of high calibre and brilliance. The relevant observations read as under: - "10. If we are to improve the personnel of the subordinate judiciary, we must first take measures to extend or widen our field of selection so that we can draw from it really capable persons.

A radical measure suggested to us was to recruit the judicial service entirely by a competitive test or examination. It was suggested that the higher judiciary could be drawn from such competitive tests at the all-India level and the lower judiciary can be recruited by similar tests held at State level. Those eligible for these tests would be graduates who have taken a law degree and the requirement of practice at there Bar should be done away with. Such a scheme, it was urged, would result in bringing into the subordinate judiciary capable young men who now prefer to obtain immediate remunerative employment in the executive branch of Government and in private commercial firms. The scheme, it was pointed out, would bring to the higher subordinate judiciary the best talent available in the country as a whole, whereas the lower subordinate judiciary would be drawn from the best talent available in the State. " (Emphasis supplied) 47. In All India Judges' Association (1) v.

Union of Indiareported in (1992) 1 SCC 119, the issues pertaining to the working conditions of the District Judiciary throughout the country came up for consideration, including the issues pertaining to uniformity in the judicial cadres in different States and Union Territories, and for adequate provisions for in-service training and promotion. Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. 48. This Court took notice of the aforesaid recommendations that were made by the First Law Commission of India in its Fourteenth Report in 1958, particularly with respect to improving the standard of the District Judiciary and widening the field of selection and promotion to the Higher Judiciary in a balanced manner so as to induct capable and efficient persons as Judicial Officers in the District Judiciary. 49.

While this Court acknowledged that the creation of an All-India Judicial Service as proposed by the Law Commission may undermine the control of the High Courts over the District Judiciary, yet at the same time this Court suggested to the Union of India to undertake appropriate steps towards the implementation of the recommendations made by the Law Commission, as far as feasible, at the earliest, and directed the Central Government to consider setting up an All-India Judicial Service. The relevant observations read as under: - "11. [... ] We are of the view that the Law Commission's recommendation should not have been dropped lightly. There is considerable force and merit in the view expressed by the Law Commission. An All India Judicial Service essentially for manning the higher services in the subordinate judiciary is very much necessary. The reasons advanced by the Law Commission for recommending the setting up of an All India Judicial Service appeal to us. 12.

Since the setting up of such a service might require amendment of the relevant articles of the Constitution and might even require alteration of the Service Rules operating in the different States and Union territories, we do not intend to give any particular direction on this score particularly when the point was not seriously pressed but we would commend to the Union of India to undertake appropriate exercise quickly so that the feasibility of implementation of the recommendations of the Law Commission may be examined expeditiously and implemented as early as possible. It is in the interest of the health of the judiciary throughout the country that this should be done. xxxxxx xxx 63. We would now briefly indicate the directions we have given in the judgment: 1104 (i) An All India Judicial Service should be set up and the Union of India should take appropriate steps in this regard. [... ]" (Emphasis supplied) 50.

Thereafter, review petitions came to be filed against the decision in All India Judges' Association (1)(supra) seeking certain modifications and clarifications in respect of the directions that were issued by this Court. The review petitions came to be disposed in All India Judges' Association (2) v. Union of Indiareported in (1993) 4 SCC 288, wherein inter-alia it was clarified that although the direction for setting up an All-India Judicial Service was only recommendatory, yet in view of the necessary and expedient nature of the recommendations made by the Law Commission, the Central Government should take an earnest initiative in realizing the same. 51. Pursuant to the directions issued by this Court in All India Judges' Association (1) (supra) and All India Judges' Association (2) (supra), the First National Judicial Pay Commission under the Chairmanship of Hon'ble Mr. Justice K. J.

Shetty (Former Judge of this Court), more popularly known as the "Shetty Commission on Judicial Reforms" came to be constituted. After due deliberations, the Shetty Commission submitted its report on 11. 11. 1999, and responses to the same were filed by the States and Union Territories. 52. The recommendations made in the Shetty Commission's report along with the responses of the States/Union Territories were taken into consideration and the same ultimately culminated into the decision of this Court in All India Judges' Association (3)(supra). (1) In the said decision, this Court, inter-alia, accepted the recommendation of the Shetty Commission that 75% of the posts in the cadre of District & Sessions Judge shall be filled by promotion from Civil Judge (Senior Division) and 25% of the posts shall be filled by direct recruitment from the Bar by way of a competitive examination encompassing a written examination and viva.

(2) At the same time, this Court was of the view that when it comes to appointment by promotion to the cadre of District & Sessions Judge, (i) some incentive for improving must exist for the judicial officers and (ii) a certain minimum standard ought Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. to be maintained in the cadre of District & Sessions Judge and further, there must be an objective method for testing the suitability of a Judicial Officer for promotion. (3) Accordingly, this Court held that even within the quota of 75% there should be two methods of appointment by way of promotion.

It held that 50% of the total posts shall be filled by promotion based on the principle of 'Merit-cum-Seniority' through a test for assessing the continued efficiency and adequate knowledge of case-law of the Judicial Officers and the remaining 25% of the posts shall be filled by promotion strictly on the basis of merit through a limited departmental competitive examination (LDCC) with an eligibility requirement of five-years of qualifying service as a Civil Judge (Senior Division). (4) Thus, this Court directed that recruitment to the Higher Judicial Service i. e. , in the cadre of District & Sessions Judge shall be through three different avenues, namely: - (i) 50% by promotion of Civil Judges (Senior Division) on the basis of 'Merit-cum-Seniority' and passing a Suitability Test.

(ii) 25% by promotion strictly based on merit through a limited departmental competitive examination of Civil Judges (Senior Division) not having less than five-years qualifying service; and (iii) 25% by direct recruitment from amongst the eligible advocates based on written and viva voce test. (5) Accordingly, all the High Courts were directed to frame appropriate rules in terms of the aforesaid directions. The relevant observations read as under: - "27. Another question which falls for consideration is the method of recruitment to the posts in the cadre of Higher Judicial Service i. e. District Judges and Additional District Judges. At the present moment, there are two sources for recruitment to the Higher Judicial Service, namely, by promotion from amongst the members of the Subordinate Judicial Service and by direct recruitment. The subordinate judiciary is the foundation of the edifice of the judicial system.

It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary. While we have accepted the recommendation of the Shetty Commission which will result in the increase in the pay scales of the subordinate judiciary, it is at the same time necessary that the judicial officers, hard-working as they are, become more efficient. It is imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the Shetty Commission has recommended the establishment of a Judicial Academy, which is very necessary. At the same time, we are of the opinion that there has to be certain minimum standard, objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i. e.

the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the Higher Judicial Service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. In this way, we expect that the calibre of the members of the Higher Judicial Service will further improve.

In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned : 50 per cent of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case-law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years.

The High Courts will have to frame a rule in this regard. 28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i. e. the cadre of District Judges will be: (1) (a) 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test; (b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years' qualifying service; and (c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts. (2) Appropriate rules shall be framed as above by the High Courts as early as possible. 29. [... ] As a result of the decision today, there will, in a way, be three ways of recruitment to the Higher Judicial Service.

The quota for promotion which we have prescribed is 50 per cent by following the principle "merit-cum-seniority", 25 per cent strictly on 1108 merit by limited departmental competitive examination and 25 per cent by direct recruitment. [... ]" (Emphasis supplied) 53. Thereafter, in Malik Mazhar Sultan & Anr. (1) v. U. P. Public Service Commission reported in (2006) 9 SCC 507, this Court underscored the importance for filling up judicial vacancies on time and directed the High Courts to undertake necessary steps towards fixing a timeline for determining vacancies, issuing advertisements, conducting examinations, interviews and declaring results for final appointment. The relevant observations read as under: - "23. It is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of judges at all levels.

For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments. For all these and other steps, if any, it is necessary to provide for fixed time schedule so that the system works automatically and there is no delay in filling up of vacancies. [... ]" (Emphasis supplied) 54. The aforesaid was followed by the decision in All India Judges' Association (4) v. Union of India reported in (2010) 15 SCC 170, wherein this Court took note of the fact that various posts of the cadre of District & Sessions Judge earmarked for the 25% promotional quota strictly on the basis of merit were lying vacant on account of insufficiency of candidates or their inability to clear the competitive exam.

In such circumstances, it was directed that the 25% promotional quota, to be filled on the basis of Merit, shall be reduced to 10% of the cadre strength, and the 50% promotional quota to be filled by 'Merit-cum-Seniority' shall be increased to 65% of the total seats. The relevant observations read as under: - "6. Having regard to various strategies available, we are of the considered view that suitable amendment is to be made for this 25% quota of limited departmental competitive examination. We are also of the view, with the past experience, that it is desirable that 25% quota be reduced to 10%. We feel so as the required result, which Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. was sought to be achieved by this process could not be achieved, thus it calls for modification. 7.

Thus, we direct that henceforth only 10% of the cadre strength of District Judges be filled up by limited departmental competitive examination with those candidates who have qualified service of five years as Civil Judge (Senior Division). Every year vacancies are to be ascertained and the process of selection shall be taken care of by the High Courts. If any of the post is not filled up under 10% quota, the same shall be filled up by regular promotion. In some of the High Courts, process of selection of these 25% quota by holding limited departmental competitive examination is in progress, such process can be continued and the unfilled seats, if meritorious candidates are available, should be filled up. But if for some reason the seats are not filled up, they may be filled up by regular promotion and apply the usual mode of promotion process. Thus we pass the following order. 8.

Hereinafter, there shall be 25% of seats for direct recruitment from the Bar, 65% of seats are to be filled up by regular promotion of Civil Judge (Senior Division) and 10% seats are to be filled up by limited departmental competitive examination. If candidates are not available for 10% seats, or are not able to qualify in the examination then vacant posts are to be filled up by regular promotion in accordance with the Service Rules applicable. " (Emphasis supplied) 55. In Malik Mazhar Sultan & Anr. (3) v. U. P. Public Service Commission & Ors. reported in (2009) 17 SCC 530 this Court, in view of the large number of vacancies in the promotional quota in the cadre of District & Sessions Judge, directed the High Courts to be practical in the matters of promotion and ensure timely filling up of the vacancies on the basis of the principle of 'Seniority-cum-Merit', deviating from the observations in All India Judges' Association (3) (supra) mandating promotion by 'Merit-cum-Seniority'.

It further observed that seniority should have a predominant role in giving promotions to the Civil Judges (Senior Division) and that the High 1110 Court may decline promotion only in case the Judicial Officer is not suitable for being promoted. The relevant observations read as under: - "3. We see large number of vacancies of District Judges are lying vacant as the promotion of these posts are not being done timely by the High Court. Considering the large number of vacant posts of District Judges, the High Court should take timely action to fill up these vacancies keeping in mind the principle of seniority-cum-merit. The High Court may deny promotion to a Civil Judge (Senior Division) only in case he/she is not suitable for being promoted and the seniority should always have a predominant role in giving promotion to the Civil Judge (Senior Division) to the post of District Judge.

If the posts of District Judges are not filled up in time it is likely that sessions cases may not have timely trial, thereby delaying the whole procedure of justice delivery system. We request the High Court to be practical in the matter of promotion and filling up the posts of the District Judges. [... ]" (Emphasis supplied) b. Relevant Statutory Provisions of the Gujarat State Judicial Service Rules, 2005. 56. At this stage, it would be necessary to look into the statutory scheme and refer to the relevant provisions governing the promotion of Civil Judges (Senior Division) to the cadre of District & Sessions Judge in the State of Gujarat. 57. The 2005 Rules provide for the service conditions and policies pertaining to the Judicial Officers and the service framework of the District Judiciary in the State of Gujarat. 58. Rule 5 sub-rule (1) of the 2005 Rules provides for the various modes or methods of appointment to the cadre of District & Sessions Judge.

Rule 5(1) of the 2005 Rules framed in accordance with the directions issued in All India Judges' Association (3)(supra), lays down three distinct modes of recruitment to the cadre of District & Sessions Judge. The said Rule reads as under: - Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. "5. Method of recruitment, qualification and age limit. (1) Recruitment to the cadre of District Judges shall be as under, - (I) 50 per cent by promotion from amongst the Senior Civil Judges on the basis of principle of merit-cum-seniority and passing a suitability test. (II) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Senior Civil Judges having not less than five years qualifying service, and (III) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by the High Court. " 59.

Rule 5(1) sub-clause (I) of the 2005 Rules provides that appointment to 50% of the posts in the cadre of District & Sessions Judge shall be by promotion from the cadre of Civil Judges (Senior Division) i. e. , the feeder cadre, on the basis of the principle of 'Merit-cum- Seniority' and upon passing a Suitability Test. In other words, 50% of the posts of District & Sessions Judge shall be filled by promotions on the basis of the principle of 'Merit-cum-Seniority'. 60. Rule 5(2) sub-clause (II) of the 2005 Rules provides that 25% of the posts in the cadre of District & Sessions Judge shall be filled by promotions on the basis of merit through a limited departmental competitive examination. 61. Rule 5(2) sub-clause (III) provides the third method of recruitment, by which the remaining 25% of the posts in the cadre of District & Sessions Judge shall be filled by direct recruitment of the eligible advocates on the basis of a written exam and viva-voce. 62.

Pursuant to the directions of this Court in All India Judges' Association (4)(supra), Rule 5 referred to above was amended by the Gujarat State Judicial Service (Amendment) Rules, 2011, whereby, the second category of posts being the 25% promotional quota to be strictly filled on the basis of merit, was reduced to 10% and the 50% promotional quota, to be filled on the basis of principle of 'Merit- cum-Seniority' and passing a Suitability Test, was increased to 65%. 1112 63. In other words, the aforesaid 2011 amendment reduced the posts for promotion on the basis of merit from 25% to 10% and increased the posts for promotion on the principle of 'Merit-cum-Seniority' from 50% to 65% in the cadre of District & Sessions Judge. 64. Rule 5 sub-rule (3) further prescribes the eligibility criteria for the aforesaid two modes of promotion provided in Rule 5(1) of the 2005