Holding

The 1982 Government Resolution does not apply to Section Officer promotions, and while merit must include past performance, the lack of a scoring system for it does not invalidate the selection process.

Summary

The appellants, assistants of the Gujarat High Court, challenged their exclusion from promotion to Section Officer, arguing that a 1982 Government Resolution limited the "zone of consideration" to three times the vacancies and that the selection process violated Rule 47(2) by not assigning marks for past performance. The Supreme Court held that the Resolution applied only to promotions to Heads of Departments and not to Section Officer posts, and therefore could not restrict the number of candidates. While the Court recognised that merit must include past performance, it found that the absence of a scoring system for that factor did not render the entire selection ultra vires. The Court also clarified that a higher court’s judicial review focuses on jurisdiction, not on whether a wrong premise was used, and that no illegality was shown in allowing all 91 candidates to appear. Consequently, the appeals were partly allowed, directing fresh consideration of the eight assistants whose promotions were pending.

Issues considered

The applicability of the 20 March 1982 Government Resolution to promotions to Section Officer posts.
Whether the selection process violated Rule 47(2) by failing to assign marks for past performance.
Whether allowing all 91 candidates to appear for the viva‑voce exceeded the permissible zone of consideration.
Whether the superior court can set aside the High Court's decision when it was based on a mistaken premise but not ultra vires.

Subjects

promotionmeritselection committeepast performancejudicial reviewjurisdictionRule 47Government Resolutionseniority

Judgment

K.K. PARMAR AND ORS. A
v.
H.C. OF GUJARAT TH. REGISTRAR & ORS.

MAY 12, 2006

[S.B. SINHA AND P.P. NAOLEKAR, JJ.] B
High Court of Gujarat (Recruitment & Conditions of Service of Staff)
Rules, 1992-,Rule 47 prescribing procedure for promotion to post ofSection
Officer from Assistant on consideration ofefficiency, proved merits determined
on past performance, written and oral test-However, Government in one
of its office orders prescribing principle of selectivity for appointment by c
promotion to post of Heads of Departments-High Court applying this order
for post of Section officers-Validity of-Held-Government order ex facie
applied to posts of Head of the Department, and had no application to
promotion to the post ofSection officers, who were not heads ofdepartment-
However, per se, no illegality was committed by High Court in allowing all D
eligible employees to be brought within the zone of consideration, and only
because Registry of High Court applied that resolution, it would not render
selection process invalid-For judging merit, past performance was a
relevant factor, and manner ofits determination specified in Rule 47(2) could
not be ignored-No employee could claim those posts only on basis of their
seniority. E

Judicial review by superior court-Exercise of-Held-Court exercising
/
power ofjudicial review is not concerned whether a wrong provision of law
has been taken recourse to-It is only concerned whether authority passing
the order had requisite jurisdiction under the law to do so or not-If it is
F
found that the impugned order is not ultra vires or illegal or without
jurisdiction, the same would not be interfered with only because it at one
point of time proceeded on a wrong premise-Jurisdictional question can
always be permitted to be raised.

Words and phrases- 'Merit '-Jn context of Rule 47 of High Court of G
Gujarat (Recruitment & Conditions of Service of Staff) Rules, 1992-
Discussed.

The Appellants were working as Assistants in High Court. Their
terms and conditions of service are governed by the High Court of
H
565
566 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A Gujarat (Recruitment & Conditions of Service of Staff) Rules, 1992.
Rule 47 thereof provided that for promotion to the post of Section
Officer from Assistant the promotion will be effected strictly on
consideration of efficiency and proved merits; merits was to be
determined on the basis of the past performance and performance at
the written and oral tests to be taken by the Selection Committee as may
B be appointed by the Chief Justice. However, an office order in the form
of a 'resolution' was issued by Government of Gujarat which inter alia
provided that the principal of selectivity has been accepted for the
purpose of appointment by promotion to the post of Heads of
Departments, and for that purpose a selection committee was also set
c up by a Government Resolution which had to classify officers within the
zone of consideration as outstanding, very good, good and unfit for
promotion; and Secretariat Departments were directed to strictly ensure
that those instructions were followed while filling post by promotion on
selection basis.

D For vacancies in post of Section Officer a written examination and
viva voce was held and appellants appeared therein. Unsuccessful
candidates challenged the result by filing writ petitions. High Court
rejected their contentions. Hence the present appeal.

Appellant contended that (a) the High Court committed an illegality
E
in allowing all the candidates to appear at the viva-voce test although
the zone of consideration therefor as envisaged under the Government
Resolution was confined to three times the number of vacancies (b) sub-
rule (2) of Rule 47 of the Rules was voilated as in terms inter alia, merit
was to be determined on basis of past performance and no criteria was
F fixed relating thereto.

Respondents contended that as the appellants were aware that no
marks had been allotted in regard to the past performance but despite
the same, they having taken part in the examination, were estopped
from questioning the same.
G
Partly allowing the appeals, the Court

HELD I. I. A bare perusal of the purported Resolution adopted by
the Government of Gujarat on 20th March, 1982 clearly shows that the
H same was applicable only in relation to the Head of the Departments.
K.K. PARMAR v. H.C. OF GUJARAT TH. REGISTRAR 567

A rule framed by the State in exercise of its power under proviso A
appended to Article 309 of the Constitution of India may be applicable
to the employees of the High Court but the executive instructions issued
would not be and in particular when the same is contrary to or
inconsistent with the Rules framed by the Chief Justice of the High
Court in terms of Article 229 of the Constitution of India. The Resolution
dated 20th March, 1982 ex facie applies to the cases of appointment by
B
promotion to the posts of Head of the Department. It, therfore, had no
application to promotion to the post of Section Officers, who are not
Head of the Department. [577-F-G)

1.2. In terms of the said Resolution, the selection committee itself c
was required to classify officers within the zone of consideration as
'outstanding', 'very good', 'good' and 'unfit for promotion'. Such a
procedure is not adopted in the matter of appointment to the posts
pertaining to the administrative side of the High Court. It is the Chief
Justice of the High Court who is concerned with the performance of the
officers. The said Resolution dated 20th March, 1982 provides that the
D
Public Service Commission was to be consulted so for as the appointment
of the employees is concerned. The Public Service Commission does not
come into picture at all in the matter of promotion of the assistants to
the posts of Section Officers. The said Resolution has rightly been held
to be inapplicable by the Division Bench of the High Court. E
[577-H, 578-A-B]

2.1. The High Court on its administrative side admittedly proceeded
on the basis that the said Resolution of the State was applicable and only
on the said premise placed the matter before the then Acting Chief
Justice for his direction as to whether only 75 Assistants should be
F
invited to appear before the Selection Committee being within the zone
of consideration in terms of the said Resolution. Even applicability of
the said Resolution was not questioned before the Single Judge, but the
same would not mean that only because at one point of time the High
Court committed a mistake in proceeding on the basis that the said G
Resolution of the State was applicable to its own employees, the said
contention cannot be permitted to be raised at all. If per se, no illegality
has been committed by the then Acting Chief Justice of the High Court
in allowing all the 91 eligible employees to be brought within the zone
of consideration, only because the Registry thought that the said H
568 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A resolution would be applicable, the same by itself, would not render the
selection process invalid. [578-E-H)

2.2. The superior court exercising its power of judicial review is
not concerned as to whether a wrong provision of law has been taken
recourse to, but is only concerned with the question as to whether the
B authority passing the order had the requisite jurisdiction under the law
to do so or not. In the event, it is found that the impugned order is not
ultra vires or illegal or without jurisdiction, the same would not be
interfered with only because it at one point of time proceeded on a
wrong premise. A jurisdictional question, can always be permitted to
C be raised. [579-A-B)

3.1. Merit was the only consideration for promotion to the post of
Section Officer. They were selection posts. Selection was, therefore,
required to be made strictly on the basis of respective merit of the
candidates as also on the basis of their past performance. No employee
D had a claim to those posts only on the basis of their seniority. [579-C]

3.2. Sub-rule (2) of Rule 47 of the Rules specifies the mode and
manner in which respective merit of the candidate is to be determined.
The High Court or for that matter the selection committee could not
have ignored the same. In any event, it was for the members of the
E selection committee, in absence of any marks having been allotted under
the rules for judging the past performance of the candidates, to devise
a mode therefor. The candidates had no say in the matter. Annual
Confidential Reports of the employees concerned must have been placed
before the selection committee with a view to enable it to prepare a
F select list. If they had not adopted any criteria in that regard, the
concerned employees cannot be blamed therefor. The same, however,
may not by itself be sufficient to set aside the entire selection process.
The records have not been placed before the Court. The Appellants
might not have obtained the requisite marks for passing the examination
either in the written test or at the oral test or both. If any of the
G Appellants, failed to obtain qualifying marks fixed in terms of the Rules,
viz., 40 marks, the question as to whether their past performance was
otherwise better than the candidates who had been selected would take
a back seat. However, only such candidates who had not only passed
both written and oral tests, their past performances required to be taken
H into consideration. (580-B-C)
K.K. PARMAR v. H.C. OF GUJARAT TH. REGISTRAR [SINHA,J.] 569

3.3. Merit of a candidate is not his academic qualification It is sum A
total of various qualities. It reflects the attributes of an employee. It may
be his academic qualification. He might have achieved certain distinction
in the University. It may involve the character, integrity and devotion
to duty of the employee. The manner in which he discharges his final
duties would also be relevant factor. [580-D-E] B

Guman Singh v. State of Rajasthan, [1971] 2 SCC 452 and Union of
India v. ML. Capoor, AIR (1974) SC 87 relied on.

3.4. For the purpose of judging the merit, thus, past performance
was a relevant factor. There was no reason as to why the same had been C
kept out of consideration by the Selection Committee. If a selection is
based on the merit and suitability, seniority may have to be given due
weight but it would only be one of the several factors affecting assessment
of merit as comparative experience in service should be. [580-F)

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5773-5776 D
•
of 2000.

From the Final Order dated 29.7.1999 of High Court of Gujarat at
Ahmedabad in L.P.A. Nos. 1426 to 1429 of 1998.
E
Sanjay Kapur, Mrs. Shubra Kapur and Ms. Arti Singh for the
Appellants.

Ms. Hemantika Wahi, Mr. Rutwik Panda for M/s I.M. Nanavati
Associates and Ms. Meenakshi Arora for the Respondents.
F
The Judgment of the Court was delivered by

- S.B. SINHA, J. :

The Appellants herein are assistants working in the High Court of
Gujarat. Their promotion to the post of Section Officer was due. There were G
25 vacancies in the post of Section Officer. A written examination was held
for the said purpose. All the assistants eligible therefor appeared at an written
examination. 29 employees did not obtain the requisite marks for appearing
at the viva-voce examination. They filed a writ petition before the Gujarat
High Court which was numbered as SCA No. 351 of 1998. H
570 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A 19 of them although cleared the written test but did not do well in viva-
voce. They filed a writ petition before the High Court which was numbered
as SCA No. 1298 of 1999.

The post of Section Officer is a selection post. The terms and conditions
of service are governed by Gujarat (Recruitment and Conditions of Service
B of Staff) Rules, 1964 (for short"the 1964 Rules"). Rule 38 of the 1964 Rules
relates to promotion which is set out hereunder:

"38(1) Promotions shall be made on merit, but seniority in the cadre
shall be ordinarily taken into account as far as possible. A person,
c however, may receive special promotion for recognized merit
irrespective of the grade to which he may belong or irrespective of
the seniority within the grade.

(2) The post of Superintendent and any higher post shall be
considered as selection post and no court servant shall have a claim
D to them merely by way of seniority."

An office order in the form of a 'resolution' was issued by the
Government of Gujarat on or about 20th March, 1982 which is in the
following terms:

E "In Government Resolution, General Administration Department
No. SL T 1177 G, DATED 20/05/1978 the principle of selectivity
has been accepted for the purpose of appointment by promotion
to the post of Heads of Departments. For this purpose a
selection committee is also set up under Government Resolution,
F General Administration Department No. SL T 1177 G-2 dated
11/11/1980 consisting of ( 1) the Chief Secretary (2) the Senior Most
Secretary to Government next to Administrative Department

G
concerned.

The Selection Committee will classify officers within the zone
-
of consideration as outstanding, very good, good and unfit for
promotion. The Selection list will then be prepared in the size equal
to number of vacancies in the same order, subject to maintenance
of seniority of classification also. Government is pleased to direct
in consultation of Gujarat Public Service Commission zone of
H consideration shall be as under:-
K.K. PARMAR v. H.C. OF GUJARAT TH. REGISTRAR [SINHA, J.] 571

No. of vacancies No. of officers to be considered A,
1. 5
2. 8
3. 10
:...
4. or more three times number B
of vacancies

All Secretariat Departments should strictly ensure that these
instructions are in variable followed while considering promotion
to the post filled by promotion on selection basis." C
The High Court of Gujarat also framed rules known as "The High Court
of Gujarat (Recruitment & Conditions of Service of Staff) Rules, 1992 (for
short "the Rules"). Rule 47 of the said Rules relates to promotion. Sub-rule
(2) of Rule 47, sub-rule (1) of Rule 50 and sub-rule (1) of Rule 91 which
are relevant for our purpose are set out hereunder: D
"47.(2) (a) For promotion to the post of Section Officer from
Assistant the promotion will be effected strictly on consideration of
efficiency and proved merits. Merits shall be determined on the
basis of the past performance and performance at the written and
oral to be taken by the Selection Committee as may be appointed
E
by the Chief Justice ...

50(1) In respect of all such matters regarding the conditions of
service of Court servants for which no provision or insufficient
provision has been made in these Rules, the rules and orders for the F
time being in force and applicable to servants holding corresponding
posts in the Government of Gujarat, which are not inconsistent with
these Rules, shall regulate the conditions of service of Court
servants subject to such modifications, variations, and exceptions,
if any, in the said rules and orders, as the Chief Justice may, from
time to time specify.
G

Provided that no order containing modifications, variations or
exceptions in Rules relating to salaries, allowances, leave or
pensions shall be made by the Chief Justice except with the approval
of the Governor. H
572 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A 91. Savings of the powers of the Chief Justice:-

(I) Nothing in these Rules shall be construed to limit or abridge
the powers of the Chief Justice to deal with the case of any Court
servant or any person to be appointed to the service in such manner
· as may appear to him to be fit and proper.
B
(2) The Chief Justice may from time to time alter, amend or repeal
any of these Rules and make such further Rules or pass such orders
as he may deem fit in regard to all matters herein provided or
matters incidental or ancillary to these Rules or in regard to matters
c which have not been provided or sufficiently provided for in these
Rules.

Provided that if such orders relate to pay, salaries, allowances,
leave or pension of the servants of the High Court such orders shall
be made with the approval of the Governor."
D
The writ petitioners-Appellants principally raised two contentions:

(i) The High Court committed an illegality in allowing all the 91
candidates to appear at the viva-voce test although the zone of
E consideration therefor as envisaged under the Resolution dated
20th March, 1982 was confined to the three times number of
vacancies and, thus, not more than 75 persons could have been
allowed to be brought within the zone of consideration.

(ii) There had been a gross violation of sub-rule (2) of Rule 47 of
F the Rules in terms whereof merit was to be detennined on the basis
of (i) past performance, (ii) written test, (iii) oral test, but as no
criteria was fixed relating to past performance of the candidate,
the entire selection process was vitiated in law.

G The said contentions found favour with the learned Single Judge of
the High Court.

The said learned Single Judge repelled the contentions raised on
behalf of the High Court that the Acting Chief Justice had exercised his
H power to modify the rules, stating:
K.K. PARMAR v. H.C. OF GUJARAT TH. REGISTRAR [SINHA, J.] 573

"9. There is distinction between the exercise of powers by the Chief A
Justice in framing the rules with respect to the condition of service
of Officers and servants of the High Court under Article 229,
including the power of modification and variations of the rules of
the State Government applicable to the High Court employees by
virtue of power preserved under Rule 50( 1) of the Rule of 1992 and
the exercise of powers by the Chief Justice as Executive Head of
B
the High Court establishment under the rules, framed by him. The
Chief Justice as well has to follow the rules framed by him
punctually and faithfully as others are to follow. Any breach of rule
by the Chief Justice cannot be construed as exercise of power of
modification of rules. Reverting to the direction dated 2.9.1997, in c
my view, the Hon'ble the then Acting Chief Justice was in error in
considering that the 12 persons against whom there were adverse
remarks, could be excluded from the zone of consideration. What
is the effect of adverse remarks in the A.C.R., was a matter for the
Selection Committee to consider. A person cannot be excluded from D
the zone of consideration for the reason that there is adverse entry.
Similarly, it was wrong to consider that six persons against whom
departmental inquiry was pending, could be excluded from the zone
of consideration. If the departmental inquiry is pending against a
person in the eligibility list, the Selection Committee is required to
follow a known procedure of "sealed cover". Thus, the very E
premises on which the zone of consideration has been extended is
contrary to law."

However, having regard to the fact that only 14 candidates were
selected against 25 vacancies, it was directed: F
"Thus, it is only the consideration of candidates beyond the zone
of consideration, i.e., beyond Sr. No. 75 in eligibility list being in
violation and breach of G.R. dated 20.3.1982 which can held to be
illegal. Consequently, it is held that selection ofrespondents No. 10
to 15 namely, Mr. G.S. Marapally, whose name appears at Sr. No. G
76, Mrs. N P Tekani, whose name appears at Sr. No. 77 in the list
of eligible candidates, respondent No. 12 Mr. V.K. Pathak, at Sr.
No. 85, respondent No. 13 Mrs. Sujitra Rajan at Sr. No. 88,
respondent No. 14 Mr. A.S. Raghupathy at Sr. No. 89 and respondent
No. 15, Mrs. Gracy ST. at Sr. No. 90 is illegal and bad in law." H
574 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A In regard to the contention of violation of Rule 47, the learned Single
Judge opined:

" .. .It is stated that upto 1979, promotions were given on the basis
of seniority-cum-merit. The merit was considered on the basis of
Confidential Reports and other service record. However, thereafter,
B a method of judging the capacity of the Senior Assistants due for
promotion to hold the Supervisory post of Section Officer from their
perfonnance on the tables on which they were working was not
found adequate and, therefore, it became necessary to evolve some
method in addition to the consideration of the Confidential Reports
c and other service record whereby the suitability or otherwise of the
candidate can be assessed properly in the interest of office efficiency.
It is also submitted that the system of taking written and oral test
to assess suitability or otherwise on a comparative evaluation of the
eligible candidates thus came into existence after 1979. In November
1979, the Hon 'ble the then Chief Justice dlfected to take interview
D of the Assistants concerned and prepare select list in the order of
merit. They were also tested by asking them to prepare some
submissions. Thereafter, in the year 1981, written test and oral
interview were taken on 31.7.82, 22.2.83, 31.12.83, 24.il.85, 7.3.87,
20.2.88, 2.3 .96 and 27. 7.97. In para 14, it is stated that the Selection
E Committee also considered the Adverse Reports recorded in the
ACR against the candidates. This fact does not find confinnation
from the proceedings of oral test."

Noticing that no mark was allotted for the past perfonnance, which
played a significant role, it was opined that the High Court did not take
F
cognizance of the mandate given by the Chief Justice as contained in Rule
47 opining:

"In fact the new mechanism oughtto have been evolved immediately
after coming into force of Rules of 1992, in confonnity with the
G mandate of Rule 47. Thus, it is not only wrong on the part of the
High Court to continue with the old procedure of selection, even
after coming into force of the Rules of 1992, but it is in utter
disregard of the Rule 47. Thus, the unreported decision cited on
behalf of the High Court has no relevance in the context of the Rules
of 1992.''
H
K.K. PARMAR v. H.C. OF GUJARAT TH. REGISTRAR [SINHA, J.] 575

The learned Single Judge further held: A
" ... Thus, the Hon'ble Chief Justice, in his wisdom, while exercising
the powers under Article 229 of the Constitution oflndia, in framing
rule 4 7 of the Rules of 1992, provided combination of three
components, i.e., past performance, written test and oral test for
determination of merit in the !natter of promotion on selection post.
B
However, the mechanism evolved prior to 1992 has been carried
forward, unmindful of the fact that it does not contain the important
component of "past performance". Without over-emphasizing the
importance of "past performance", it cannot be disputed that for
recruitment from among the persons of matured personality, appraisal C
of past performance is the basic and essential requirement. It is also
not in dispute that the system of writing Annual Confidential Report
is in existence in the High Court establishment. It is of course true
that it has been subject to criticism to certain extent, but for that
efforts can be made to bring change therein by substituting a new D
and more open Participatory Appraisal system. The comparative
merit could be assessed by taking into consideration, the Annual
Confidential Reports. Dealing with seniority in judging the merit,
it is true that seniority occupies the back seat in case of selection
purely by merit, still, it cannot be ignored completely ... "
E
The High Court noticed the marks obtained by the 15 employees in
the written examination and held that in adopting the selection process, merit
has taken a back seat, in the following terms:

"It is indeed a travesty of selection that persons of average merit F
have superseded large number of employees in the cadre of
Assistants in the name of merit. Most of the selected candidates
scored minimum marks i.e. 40% which is just above 1/3 of the
maximum i.e. III Division marks. Fixing qualifying mark as 40%
and ultimate selection on merit are two different things. A person G
in scoring total 40% marks, by no stretch of imagination can said
to be a person of proven merit. In Janki Prasad's case (supra), the
Apex Court, with respect to scoring of just 1/3 of maximum marks,
i.e., 30% observed, "it would be absurd to make selection with such
a cutting score."
H
576 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A The Division Bench of the High Court, on the other hand, was of the
opinion that the said Resolution dated 20th March, 1982 will have no
application whatsoever. As regard alleged violation of Rule 56, the Division
Bench held:

" ... The fact that service records were called for and were placed
B before the selection committee is not in dispute and, therefore, it
would be reasonable to presume that service records were considered
by the selection committee. However, non-assignment of marks
would not indicate that the selection was made by the selection
committee in an arbitrary manner. Rule-47(2) of the Rules is, in our
c view, complied with and there has been no material indicating
irregularity or illegality committed by the selection committee when
it did not indicate separate marks for past perfonnance. As pointed
out earlier, merits has to be assessed on the basis of past performance,
written test and oral test. When a candidate has to appear at written
and oral test his merits can be ascertained with reference to marks
D
obtained by him at the tests. However, no test is being held for past
performance and what is required to be done is to scrutinise and
examine the past record for which assignment of marh may not be
necessary in all cases. What procedure should be adopted for
assessing merits while considering, three criterions has to be left to
E the selection committee and it is not open to the Court hearing a
petition under Article 226 of the Constitution to lay down that a
particular procedure ought to have been adopted by the selection
committee. No conclusion is possible that in absence of allotment
of separate marks for past performance, Rule 4 7(2) stands breached ... "
F
Taking note of an unreported judgment of the said High Court, the
Division Bench stated:

"The selection committee had followed the procedure of holding
written test of 60 marks followed by oral test of 20 marks and the
G criteria adopted for the selection was that the candidate who scored
40% marks in aggregate should be considered eligible for section.
Therefore, to be eligible for selection a candidate was required to
obtain minimum 32 marks out of 80 in aggregate at the written as
well as oral tests. However, it was found that several candidates had
obtained less than 11 marks at the written test and on submission
H
K.K. PARMAR v. H.C. OF GUJARAT TH. REGISTRAR [SINHA, J.] 577

being made, the selection committee directed that those who had A
secured less than 11 marks at the written test should not be called
for oral test because even if 20 marks were secured at the oral test
by those candidates, the total would not be 40% marks. We find that
since the oral test was of 20 marks, even if a candidate securing 11
marks at the written test was given full 20 marks, he would not reach B
the qualifying standard of 32 marks out of 80 and, therefore, only .
such of the candidates who had secured 12 or more marks at the
written test, were called for oral test. In our view, this cannot be
said to be illegal at all. It would have been an exercise in futility
to call those candidates for interview who had secured less than 12
marks at the written test..." c
Mr. Sanjay Kapur, learned counsel appearing on behalf of the
Appellants submitted that the High Court on its administrative side, committed
a manifest illegality in promoting some Assistants to the posts of Section
Officers in violation of the aforementioned Resolution of the State dated 20th D
March, 1982 as also in flagrant violation of Rule 47 of the said Rules.

Ms. Hemantika Wahi and Ms. Meenakshi Arora, learned counsel
appearing on behalf of the Respondents, however, supported the judgment
of the Division Bench.
E
A bare perusal of the purported Resolution adopted by the Government
of Gujarat on 20th March, 1982 clearly shows that the same was applicable
only in relation to the Head of the Departments. A rule framed by the State
in exercise of its power under proviso appended to Article 309 of the
Constitution of India may be applicable to the employees of the High Court F
but the executive instructions issued would not be and in particular when the
same is contrary to or inconsistent with the Rules framed by the Chief Justice
of the High Court in terms of Article 229 of the Constitution of India. The
Resolution dated 20th March, 1982 ex facie applies to the cases of
appointment by promotion to the posts of Head of the Department. It, G
therefore, had no application to promotion to the post of Section Officers,
who are not Head of the Department.

In terms of the said Resolution, the selection committee itself was
required to classify officers within the zone of consideration as 'outstanding',
H
SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

-
578

A "very good', 'good' and 'unfit for promotion'. Such a procedure is not
adopted in the matter of appointment to the. posts pertaining to the
administrative side of the High Court. It is the Chief Justice of the High Court
who is concerned with the performance of the officers. The said Resolution
dated 20th March, 1982 provides that the Public Service Commission was
to be consulted so far as the appointment of the employees is concerned. The
B Public Service Commission does not come into picture at ail in the matter
of promotion of the assistants to the posts of Section Officers. We, therefore,
have no hesitation to hold that the said Resolution has rightly been held to
be inapplicable by the Division Bench of the High Court.

c notice ofThetheRegistry of the High Court brought the said Resolution to the
then Acting Chief Justice that only 75 eligible Assistants fail
within the zone of consideration but it was directed that as 91 employees
included 12 such employees against whom adverse remarks were made and
6 out of such employees against whom enquiries were pending and, thus,
restricting 75 employees within the zone of consideration, it would mean that
D only 75-18 ° 57 would b1.: considered. it was, therefore, directed:
0

'"There is no reason to exclude 76 to 91 ~ 16) eligible persons when
18 persons also being considered."

Mr. Kapur may be right in his submission that applicability of the said
E Resolution had never been questioned. The High Court on its administrative
side admittedly proceeded on the basis that the said Resolution of the State
was applicable and only on the said premise placed the matter before the then
Acting Chief Justice for his direction as to whether only 75 Assistants should
be invited to appear before the Selection Committee being within the zone
F of consideration in terms of the said Resolution. Even applicability of the
said Resolution was not questioned before the learned Single Judge, but the
same would not, in our considered view, mean that only because at one point
of time the High Court committed a mistake in proceeding on the basis that
the said Resolution of the State was applicable to its own employees, the said
G contention cannot be permitted to be raised at all. If, per se. no illegality has
been committed by the then Acting Chief Justice of the High Court in
allowing all the 91 eligible employees to be brought within the zone of
consideration, only because the Registry thought that th.: said resolution
would be applicable. the same by itself. in our considered opinion. would
H not render the selection process invalid.
-
K.K. PARMAR v. H.C. OF GUJARAT TH. REGISTRAR [SINHA, J.] 579

The superior court exercising its power of judicial review is not A
concerned as to whether a wrong provision of law has been taken recourse
to, but is only concerned with the question as to whether the authority passing
the order had the requisite jurisdiction under the law to do so or not. In the
event, it is found that the impugned order is not ultra vires or illegal or
without jurisdiction, the same would not be interfered with only because it
at one point of time proceeded on a wrong premise. A jurisdictional question,
B
in our opinion, can always be pennitted to be raised. We, therefore, do not
find any substance in the said contention of Mr. Kapur.

In so far as the second contention raised on behalf of the Appellants
is concerned, apparently the same has merit. Merit was the only consideration C
for promotion to the post of Section Officer. They were selection posts.
Selection was, therefore, required to be made strictly on the basis of
respective merit of the candidates as also on the basis of their past
performance. No employee had a claim to those posts only on the basis of
their seniority.
D
Sub-rule (2) of Rule 4 7 of the Rules categorically provides for the
mode and manner as to how the merit should be determined. In terms thereof,
merit of a candidate was to be determined on the basis of: (i) past
performance, (ii) performance at the written test and (iii) performance at the
oral test to be taken by the selection committee. E
Whereas 60 marks were fixed for the written test and 20 marks for
the oral, no mark whatsoever was allotted towards past performance. An
endeavour has been made by the learned counsel for the Respondents to
contend that as the Appellants were aware that no marks had been allotted
in regard to the past performance but despite the same, they, having taken
F
part in the examination, were estopped and precluded from questioning the
same. We do not agree.

Sub-rule (2) of Rule 47 of the Rules specifies the mode and manner
in which respective merit of the candidate is to be determined. The High G
Court or for that matter the selection committee could not have ignored the
same. In any event, it was for the members of the selection committee, in
absence of any marks having been allotted under the rules for judging the
past performance of the candidates, to dev!se a mode therefor. The candidates
had no say in the matter. Annual Confidential Reports of the employees
H
580 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A concerned must have been placed before the selection committee with a view ...
to enable it to prepare a select list. If they had not adopted any criteria in
that regard, the concerned employees cannot be blamed therefor.

The same, however, may not by itself be sufficient to set aside the
entire selection process. The records have not been placed before us. The
B Appellants might not have obtained the requisite marks for passing the
examination either in the written test or at the oral test or both. If any of
the Appellants, failed to obtain qualifying marks fixed in tenns of the Rules,
viz., 40 marks, the question as to whether their past perfonnance was
otherwise better than the candidates who had been selected would take a back
C seat. However, only such candidates who had not only passed both written
and oral tests, their past performances were required to be taken into
consideration.

Merit of a candidate is not his academic qualification. It is sum total
of various qualities. It reflects the attributes of an employee. It may be his
D academic qualification. He might have achieved certain distinction in the
University. It may involve the character, integrity and devotion to duty of
the employee. The manner in which he discharges his final duties would also
be relevant factor. [See Guman Singh v. State of Rajasthan and Others,
[1971] 2 sec 452]
E
For the purpose of judging the merit, thus, past perfonnance was a
relevant factor. There was no reason as to why the same had been kept out
of consideration by the Selection Committee. If a selection is based on the
merit and suitability, seniority may have to be given due weight but it would
only be one of the several factors affecting assessment of merit as comparative
F experience in service should be.

In Union of India v. M.L. Capoor and Others, AIR (1974) SC 87, this
Court opined:

"The Selection Committee has an unrestricted choice of the best
G
available talent, from amongst eligible candidates, detennined by
reference to reasonable criteria applied in assessing the facts
revealed by service records of all eligible candidates so that merit
and not mere seniority is the governing factor. .. ''

H Our attention has further been drawn to the fact that out of 29
K.K. PARMAR v. H.C. OF GUJARAT TH. REGISTRAR [SINHA, J.] 581

Assistants, 4 have already retired and 17 have already been promoted. Only A
the cases of 8 Assistants are pending promotion.

In view of the principles laid down by this Court, therefore, the cases
of those 8 Assistants who had not been promoted, in our opinion, should be
directed to be considered afresh. We do so. In the event, they are found to
be suitable for promotion, having regard to the fact that the Chief Justice B
of the High Court is the appointing authority, the High Court may consider
the question as to whether such promotion, if any, should be given
retrospective effect or not.

These appeals are allowed to the aforementioned extent. There shall C
be no order as to costs.

V.S. Appeals partly. allowed.