RAVIKUMAR DHANSUKHLAL MAHETA & ANR.versusHIGH COURT OF GUJARAT AND ORS.

416                      [2023]REPORTS
               SUPREME COURT    5 S.C.R. 416                 [2023] 5 S.C.R.


A            RAVIKUMAR DHANSUKHLAL MAHETA & ANR.
                                         v.
                   HIGH COURT OF GUJARAT AND ORS.
                       (Writ Petition (C) No. 432 of 2023)
B                                 MAY 12, 2023
                [M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
             Judiciary: Higher judiciary – District judges – Appointment
      – Promotion of Senior Civil Judges to the cadre of District Judge –
      Rules 2005 prescribed 65% posts in the cadre of District Judge to
C
      be filled by promotion amongst Senior Civil Judges on the basis of
      principle of merit cum seniority and passing of a suitability test –
      Issuance of select list by the High Court for promotion of Senior
      Civil Judges to the cadre of District Judge (65% quota) – Petitioners
      not recommended for promotion even though having higher marks
D     than the ones promoted – Writ petition by the petitioners challenging
      the select list as being violative of Art. 14 and r. 5 of the 2005 Rules
      – Issuance of Notice – However, despite being served with the copy
      of the petition, the State Government vide notification dated
      18.04.2023 notified the appointment of 68 candidates, subject to
      the ultimate outcome of the writ petition – Held: High Court
E
      considered the merit only for the purpose of achieving the benchmark
      and thereafter switched to the seniority-cum-merit and thereby gave
      a go-by to the principle of merit-cum-seniority – Method adopted
      by the High Court contrary to the observations made by this Court
      in All India Judges’ Association’s case and also contrary to the 2005
F     Rules and the Recruitment Notice – High Court adopted a wrong
      method – Thus, the impugned Selection List issued by the High Court
      and the subsequent Notification issued by the State Government
      granting promotion to the cadre of District Judge 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
G
      and Ors.’s case, thus, not sustainable – State Government could
      have waited till the next date of hearing by this Court – At present
      the respective promotees have not assumed their posting on the
      promotional post, they have been sent for training, thus, the
      further implementation and operation of the Select List issued by
H     the High Court and the subsequent Notification issued by the State
                                        416
  RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH                           417
           COURT OF GUJARAT AND ORS.

Government is stayed – Constitution of India – Arts. 14, 32 – Gujarat   A
State Judicial Services Rules, 2005.
      All India Judges’ Association and Ors. vs. Union of India
      and Ors. (2002) 4 SCC 247 : [2002] 2 SCR 712 – relied
      upon.
      B.V. Sivaiah and Ors. vs. K. Addanki Babu and Ors.                B
      (1998) 6 SCC 720 : [1998] 3 SCR 782; State of Kerala
      and Anr. vs. N. M. Thomas and Ors. (1976) 2 SCC 310
      : [1976] 1 SCR 906; Shriram Tomar and Anr. vs.
      Praveen Kumar Jaggi and Ors. (2019) 5 SCC 736 :
      [2019] 6 SCR 590; Manoj Parihar and Others vs. State              C
      of Jammu & Kashmir and Ors. SLP (C) No. 11039 of
      2022 decided on June 27, 2022; C.P. Kalra vs Air India
      (1994) Supp. 1 SCC 454; Hemani Malhotra Vs. High
      Court of Delhi (2008) 7 SCC 11 : [2008] 5 SCR 1066;
      V.K. Srivastava and Ors. vs. Government of Uttar
      Pradesh and Anr. (2008) 9 SCC 77 : [2008] 13 SCR                  D
      24; Rajendra Kumar Srivastava and Ors. vs. Samyut
      Kshetriya Gramin Bank and Ors. (2010) 1 SCC 335 :
      [2009] 15 SCR 936 – referred to.
                       Case Law Reference
                                                                        E
[1998] 3 SCR 782              referred to      Para 4.2
[1976] 1 SCR 906              referred to      Para 4.2
[2019] 6 SCR 590              referred to      Para 4.2
(1994) Supp. 1 SCC 454        referred to      Para 4.4
                                                                        F
[2008] 5 SCR 1066             referred to      Para 4.9
[2008] 13 SCR 24              referred to      Para 7 (ii)
[2009] 15 SCR 936             referred to      Para 8.8
[2002] 2 SCR 712              relied on        Para 8.2, 8.3, 8.4,      G
                                               8.5, 9, 10
      CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 432
of 2023.
      (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
                                                                        H
418             SUPREME COURT REPORTS                            [2023] 5 S.C.R.


A            Basant R., Sr. Adv., Purvish Jitendra Malkan, Ms. Dharita Purvish
      Malkan, Alok Kumar, Deepak Mani Tripathi, Nayan Gupta, Ms. Deepa
      Gorasia, Ajit Rao, Saudagar Singh, Ms. Rumii Chanda, Advs. for the
      Petitioners.
            Dushyant Dave, S.V. Raju, Ms. Meenakshi Arora, Sr. Advs.,
B     Sandeep Kumar Jha, Aakshat Malpani, Nikhil Goel, Naveen Goel, Aditya
      Koshy Roy, Ms. Deepanwita Priyanka, Ms. Mayuri Raghuvanshi, Vyom
      Raghuvanshi, Tushar Arora, Ms. VP Singh, Ms. Akanksha Rathore,
      Aditya Choksi, Arpit Gupta, Advs. for the Respondents.
            The Judgment of the Court was delivered by
C           M. R. SHAH, J.
             1. By way of this writ petition under Article 32 of the Constitution
      of India, the writ petitioners have prayed for an appropriate writ, direction
      or order to declare the Select List dated 10.03.2023 issued by the High
      Court of Gujarat at Ahmedabad for the promotion of Senior Civil Judges
D     to the Cadre of District Judge (65% quota) as being violative of Article
      14 of the Constitution of India as well as Rule 5 of the Gujarat State
      Judicial Service Rules, 2005 (hereinafter referred to as “Rules, 2005”)
      as well as the Recruitment Notice – District Judge (65%) dated
      12.04.2022.
            2. The facts leading to the present writ petition in nutshell are as
E
      under:-
             2.1 That this Court in the case of All India Judges’ Association
      and Ors. Vs. Union of India and Ors., (2002) 4 SCC 247, had
      directed that the recruitment to the Higher Judicial Services, i.e., the
      cadre of District Judges will be on the basis of principle of “merit-cum-
F     seniority” and passing a suitability test. This Court also further directed
      that the appropriate Rules shall be framed as above by the respective
      High Courts.
             2.2 In pursuance to the above directions, the High Court of Gujarat
      has framed the Gujarat State Judicial Service Rules, 2005, in which, 50
G     percent of the promotion from amongst the Senior Civil Judges (Senior
      Division) has been enhanced to 65 percent by way of amendment in the
      Rules, 2005 on 23.06.2011. Rule 5(1)(i) of the Rules, 2005 requires that
      65 percent of the posts in the cadre of District Judges shall be filled in by
      way of promotion from amongst the Senior Civil Judges on the basis of
H     “principle of merit-cum-seniority and passing a suitability test”.
  RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH                                    419
     COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]

       2.3 The High Court of Gujarat at Ahmedabad issued an                      A
advertisement by way of Recruitment Notice – District Judge (65%)
dated 12.04.2022 for the promotion to the cadre of District Judges from
amongst the Senior Civil Judges on the basis of the principle of merit-
cum-seniority and passing a suitability test to fill up 65 percent of the
vacancies. The said Notification was issued alongwith list of 205 judicial
                                                                                 B
officers in the cadre of Senior Civil Judges falling under the zone of
consideration.
        2.4 At this stage, it is required to be noted that in the Recruitment
Notice itself, it was specifically mentioned that “promotion to the cadre
of District Judge (65%) from amongst the Senior Civil Judges will be on
the basis of principle of merit-cum-seniority and on passing a suitability       C
test. In the Recruitment notice also, there was a reference to the suitability
test, which comprised of four components for assessing the suitability of
a judicial officer for promotion, which reads as under:-

                                                                                 D




                                                                                 E




                                                                                 F
       2.5 Written test was conducted by the High Court on 16.10.2022.
The High Court declared a list on 17.11.2022 of 175 judicial officers,
who appeared in the written test and qualified the written test. The
petitioners were also declared qualified in the written test.
        2.6 The High Court on 18.11.2022 called upon the month-wise              G
list of judgments disposed of, civil and criminal cases, of the candidates,
who have been declared qualified vide list dated 17.11.2022. The High
Court declared on 10.03.2023, the Select List of Senior Civil Judges.
The marks of the selected candidates were ranging between 148.50 to
100.50 marks. The petitioner No. 1 secured 135.50 out of 200 marks               H
420            SUPREME COURT REPORTS                            [2023] 5 S.C.R.


A     and the petitioner No. 2 secured 148.50 marks out of 200 and as though
      having higher marks, they were not appointed and/or their names were
      not recommended for promotion to the cadre of District Judge, the
      petitioners filed the present writ petition on 27.03.2023.
            2.7 This Court issued the notice in the present writ petition on
B     13.04.2023 and passed a detailed speaking order, which reads as under:-
               “It is the case on behalf of the petitioner(s) that as per the
            Recruitment Rules, the post of District Judge is to be filled in by
            keeping 65% reservation on the basis of the principle of merit-
            cum-seniority and passing a suitability test. It is submitted that
C           despite the above while making the appointments vide Notification
            dated 10.03.2023, the merit-cum-seniority principle has been given
            go-by and the appointments are made on the basis of the seniority-
            cum-merit. It is submitted that so far as petitioner no.1 is concerned,
            he has secured 135.5 marks out of 200 and petitioner no.2 has
            secured even the highest marks, i.e., 148.5 out of 200 and despite
D           the above, the candidates who are having lower marks have been
            appointed.
                Issue notice returnable on 28.04.2023.
                Dasti service, in addition, is permitted.
E              It will be open for the petitioners to serve copy of the petition
            on the standing counsel for respondent nos. 1 and 2.”
             2.8 Despite having been served with the copy of the present writ
      petition and though notice was made returnable on 28.04.2023 and pending
      the present writ petition, the State Government hurriedly issued the
F     Notification dated 18.04.2023 notifying the appointment of 68 candidates,
      who were selected by Select List dated 10.03.2023, however, mentioned
      in the Notification that the appointments / promotions shall be subject to
      the outcome of the present writ petition.
             3. Shri R. Basant, learned Senior Advocate has appeared with
G     Shri Purvish Jitendra Malkan, learned counsel appearing on behalf of
      the writ petitioners. Shri S.V. Raju, learned ASG has appeared on behalf
      of the State and Ms. Deepanwita Priyanka, learned counsel has also
      appeared on behalf of the State. Shri Dushyant Dave, Ms. Meenakshi
      Arora, learned Senior Advocates/ counsel have appeared on behalf of
      the respective promotees.
H
  RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH                                  421
     COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]

        4. Shri R. Basant, learned Senior Advocate appearing on behalf         A
of the respective petitioners has vehemently submitted that the impugned
selection / promotion to the post of District Judge (65%) vide selection
list dated 10.03.2023 and the further promotion order dated 18.04.2023
issued by the Government of Gujarat is absolutely illegal and contrary to
Rule 5(1)(i) of the Rules, 2005 as amended in 2011 as well as the
                                                                               B
Recruitment Notice – District Judge (65%) dated 12.04.2022.
      4.1 It is submitted that as per the relevant Recruitment Rules and
the Recruitment Notice, 65 percent of the posts in the cadre of District
Judge shall have to be filled in by way of promotion from amongst the
Senior Civil Judges on the basis of principle of merit-cum-seniority and       C
passing a suitability test. It is submitted that despite the above, the High
Court as well as the State Government have given the promotion by
applying the principle of seniority-cum-merit and the principle of merit-
cum-seniority has been given a go-by. It is submitted that the petitioner
No. 1 has secured 135.5 marks out of 200 marks and the petitioner No.2
has secured even the highest marks, i.e., 148.5 out of 200 marks and           D
despite the above, the candidates who are having lower marks have
been promoted.
      4.2 On the principle of “merit-cum-seniority” and “seniority-cum-
merit”, the learned Senior Advocate appearing on behalf of the petitioners
has heavily relied upon the following decisions:-                              E

      (i)     B.V. Sivaiah and Ors. Vs. K. Addanki Babu and Ors.,
              (1998) 6 SCC 720;
      (ii)    State of Kerala and Anr. Vs. N. M. Thomas and Ors.,
              (1976) 2 SCC 310;                                                F
      (iii)   Shriram Tomar and Anr. Vs. Praveen Kumar Jaggi
              and Ors., (2019) 5 SCC 736; and
      (iv)    Decision of this Court in the case of Manoj Parihar and
              Others Vs. State of Jammu & Kashmir and Ors., SLP                G
              (C) No. 11039 of 2022 decided on June 27, 2022.
       4.3 It is further submitted by Shri Basant, learned Senior Advocate
appearing on behalf of the respective petitioners that the method adopted
by the High Court in preparing the Select List for promotion to the post
of District Judge is absolutely illegal and just contrary to the Rules, 2005   H
422             SUPREME COURT REPORTS                             [2023] 5 S.C.R.


A     further amended in the year 2011. It is submitted that as per the High
      Court and so stated in the counter affidavit, explaining the procedure
      adopted for the selection of 68 candidates vide selection list dated
      10.03.2023, it is stated as under:-
             “9. The suitability of candidate had for components which were
B            duly reflected in the Recruitment Notice. The “Merit” eligibility
             required a Candidate to secure minimum 40% marks in each
             component with 50% marks aggregate. Upon achieving this, the
             final selection would be based on seniority. Accordingly, a select
             list of 68 candidates was prepared.”
C            4.4 It is submitted that by adopting the above method, the High
      Court has adopted the principle of “seniority-cum-merit”. It is submitted
      that the High Court by following the standard method of seniority-cum-
      merit is to subject all the eligible candidates in the feeder grade (possessing
      the prescribed educational qualification and period of service) to a process
D     of assessment of a specified minimum necessary merit and then promote
      the candidates who are found to possess the minimum necessary merit
      strictly in the order of seniority. It is submitted that though the High
      Court uses the nomenclature of above method as merit-cum-seniority,
      but actually has followed the principle of seniority-cum-merit. In support
      of his above submission, the learned Senior Advocate has heavily relied
E     upon the decision of this Court in the case of N.M. Thomas and Ors.
      (supra) as well as in the case of C.P. Kalra Vs Air India (1994)
      Supp. 1 SCC 454. It is submitted that in the case of C.P. Kalra (supra),
      this Court has ruled that though the Rules in the said case mention merit-
      cum-seniority, however, rules elaborately lay down method of seniority-
F     cum-merit.
              4.5 It is further submitted by the learned Senior Advocate appearing
      on behalf of the petitioners that as per the settled position of law, when
      promotion is to be based on “merit-cum-seniority” only, the basic qualified
      seniority has to be seen for eligible candidates and thereafter the selection
G     for promotion has to be done on the basis of merit only. It is submitted
      that, however, the process adopted by the High Court and the State is in
      complete departure of the same. It is submitted that in the present case,
      the High Court has considered the seniority to be the least identified
      criteria for promotion, which cannot be sustained, if the principle of “merit-
      cum-seniority” as provided under the Rules, 2005 is to be followed.
H
  RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH                                   423
     COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]

      4.6 It is submitted that in any case, in the present case, the            A
appointment in the cadre of District Judge is governed by the Rules,
2005 as amended in the year 2011, which specifically provides for
promotion to the post of District Judge on the basis of principle of merit-
cum-seniority and passing a suitability test.
       4.7 It is submitted that the High Court of Jharkhand at Ranchi           B
in 2019 while making appointment to the Superior Judicial Services
has followed the principle of merit-cum-seniority, by the same method,
which the petitioners are praying before this Hon’ble Court to direct
High Court of Gujarat to follow. Reliance is placed on the decision of
the High Court of Jharkhand in the case of Writ Petition (S) No.
                                                                                C
3771 of 2019 dated 29.06.2022. It is further submitted that the High
Court of Calcutta has also followed the principle of merit-cum-seniority,
by the same method, as petitioners are praying for. Merit-wise result
of normal promotion-2020 to the cadre of District Judge issued by
Calcutta High Court would go to show that the first 17 officers, who
are in the merit, are selected and recommended for appointment to the           D
post of District Judge.
       4.8 It is submitted that from the Merit List produced by the High
Court in the Counter Affidavit, it will satisfy that the petitioners ought to
have been included in the first 68 candidates. It is submitted that if the
High Court would have followed the principle of “merit-cum-seniority”,          E
in that case, the petitioners would have been promoted to the post of
District Judge being more meritorious and having more marks than the
promoted candidates.
       4.9 It is further submitted that even otherwise once the criteria
for eligibility have been mentioned in the recruitment notice, namely,          F
“merit-cum-seniority” and “suitability test”, thereafter, it was not open
for the High Court and the State to include the additional requirement /
qualification of seniority either during the process or after the selection
process. Reliance is placed on the decision of this Court in the case of
Hemani Malhotra Vs. High Court of Delhi, (2008) 7 SCC 11.
                                                                                G
      4.10 Making above submissions and relying upon the above
decisions, it is prayed to allow the present writ petition.
     5. A counter affidavit is filed on behalf of the State. The learned
Advocate appearing on behalf of the High Court has submitted as under:-
                                                                                H
424          SUPREME COURT REPORTS                         [2023] 5 S.C.R.


A     (i)      That the present writ petition under Article 32 of the
               Constitution of India may not be entertained and the
               petitioners may be relegatedto first approach the High
               Court.;
      (ii)     That in the present case, the Select List was published on
B              10.03.2023 and the State Government was moved on the
               very day to issue necessary appointment orders.;
      (iii)    That in the present case, a Selection Committee was
               constituted for the purpose of 2022 selection. A feeder cadre
               of 205 Senior Civil Judges was created with eligibility of
C              those who have at-least two years of qualifying service.
               The list was uploaded on 12.04.2022 and the petitioners
               were enlisted in the said list.;
      (iv)     That the suitability of a candidate had four components,
               which were duly reflected in the Recruitment Notice. The
D              “Merit” eligibility required a candidate to secure minimum
               of 40% marks in each component with 50% marks
               aggregate. Upon achieving this, the final selection would
               be based on seniority. Accordingly, a Select List of 68
               candidates was prepared, which was in consonance with
               the decision of this Court in the case of C.P. Kalra (supra).;
E
      (v)      That the Select List was placed before the Full Court
               meeting and upon approval, was published on the website
               of the High Court on 10.03.2023.;
      (vi)     That the methodology, which has been followed by the High
F              Court is being followed since the year 2011.;
      (vii)    That the methodology pointed out by the writ petitioners
               only points out to selection based on merit. It is submitted
               that once the feeder cadre includes the candidates who
               have just two years of experience and the only Marks
               Criterion is to be seen, the same becomes a selection based
G
               only on Merits giving a complete go-by to the principle of
               seniority.;
      (viii) That in the present case, for the selection, merit is given
             preference in as much as senior candidates pave way for
             meritorious candidates, if at the first instance, they fail to
H
  RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH                                    425
     COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]

              qualify the suitability test and thereafter the remaining          A
              candidates fail to secure minimum marks in each of the
              components and fail to secure aggregate 50% marks out of
              total 200 marks. It is submitted that, therefore, once merit
              is determined, seniority takes over. It is submitted that,
              therefore, the principle of “merit-cum-seniority” has been
                                                                                 B
              followed.;
       (ix)   That the petitioners were aware of this procedure and
              participated in it without any demur. It is submitted that
              therefore, the writ petitioners are estopped from making
              the present challenge.;
                                                                                 C
       (x)    That the same formula was applied when the present
              petitioners were promoted from their respective posts to
              the cadre of Senior Civil Judge. It is submitted that therefore,
              the writ petitioners, thereafter, cannot make any grievance
              with respect to the same methodology adopted while
                                                                                 D
              considering the post of District Judge.;
       (xi)   That the Andhra Pradesh High Court and the Orissa High
              Court have also followed the same methodology of principle
              of merit-cum-seniority.;
       6. Now, so far as the submission on behalf of the respondents not         E
to entertain the present writ petition under Article 32 of the Constitution
of India is concerned, the said objection is overruled. Taking into
consideration the fact that the impugned decision of the High Court has
been approved by the Full Court of the High Court and taking into
consideration the earlier decision of this Court in the case of All India
                                                                                 F
Judges’ Association and Ors. (supra) and even thereafter also one
another petition under Article 32 of the Constitution has been entertained,
the present writ petition under Article 32 of the Constitution is entertained.
      7. Learned Senior Advocate appearing on behalf of the promotees,
while opposing the present writ petition has made the following
                                                                                 G
submissions:-
       (i)    That the Rules, 2005 have been framed in compliance of
              the directions issued by this Court in the case of All India
              Judges’ Association and Ors. (supra). It is submitted
              that in paragraph 27, this Court has held that there should
                                                                                 H
426      SUPREME COURT REPORTS                             [2023] 5 S.C.R.


A             be two methods for appointment by promotion, namely, (i)
              promotion on the basis of principle of merit-cum-seniority
              and (ii) by promotion strictly on the basis of merit. The
              distinction between two methods of promotions is that while
              in the second method, the merits obtained by the judicial
              officers in the examination alone will determine their position
B
              in the Select List whereas while promotion as per the first
              method, seniority in the feeder cadres has to be maintained.;
      (ii)    That in the case of V.K. Srivastava and Ors. Vs.
              Government of Uttar Pradesh and Anr., (2008) 9 SCC
              77, this Court has also further clarified that even if the
C
              principle of merit-cum-seniority has to be applied, the
              principle is that if the candidates are eligible for promotion
              to the cadre of District Judges, the seniority in the feeder
              category has to be maintained as regards 50 percent of the
              promotions are concerned and in the case of 25 percent
D             promotions, the test must be rigorous and strictly on merit
              and such candidate may supersede some of their colleagues
              in the feeder category, i.e., Civil Judges (Senior Division).;
      (iii)   That the very purpose for providing the channel of promotion
              under 10% quota through limited competitive examination
E             is to provide an incentive to the officers amongst the
              relatively junior officers to improve and to compete with
              each other so as to excel and get quicker promotion.
              However, this method of promotion is not to be applied while
              filling up the vacancies under the 65% quota.;
F     (iv)    That the merit-cum-seniority does not mean that the length
              of service has no relevance and a written examination that
              only tests academic knowledge, which is sometimes, gained
              without possessing overall qualities, practical experience
              of practicing law.;
G     (v)     Learned counsel appearing on behalf of the promotees has
              further submitted that the decisions relied on behalf of the
              petitioners shall not be applicable for the recruitment of
              District Judges. It is further submitted that even the Rules
              in Jharkhand and West Bengal are distinct and different
              from the Rules applicable so far as the Gujarat is concerned.
H
  RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH                                    427
     COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]

              It is submitted that in proviso to Rule 5 in Jharkhand Rules,      A
              it is stated that seniority shall prevail only when the merit is
              concluded in all respects. However, no such provision is
              stated in the Rules applicable.;
      (vi)    Making above submissions, it is prayed to dismiss the present
              writ petition.                                                     B
        8. At the outset, it is required to be noted that as per the relevant
Recruitment Rules, namely, The Gujarat State Judicial Service Rules,
2005 further amended in 2011, the promotion to the post of District Judge
is to be given on the basis of principle of merit-cum-seniority and passing
a suitability test. The relevant rules read as under: -                          C
      “……………………(1) Recruitment to the cadre of District
      Judge shall be as under:-
      (i)     65 percent of posts shall be filled in by promotion from
              amongst the Senior Civil Judge on the basis of principle of
              merit-cum-seniority and passing a suitability test.                D
      (ii)    10 percent of posts shall be filled in by promotion on the
              basis of merit through competitive examination from
              amongst Senior Civil Judges having not less than five years
              qualifying service:
                                                                                 E
                 Provided that when candidates are not available for 10%
              seats or are not able to qualify in the competitive
              examination, then the vacant posts shall be filled in by regular
              promotion in accordance with clause (i) above,
      (iii)   25 percent of the posts shall be filled in by direct recruitment
                                                                                 F
              from amongst the eligible advocates on the basis of the
              written and viva voce test to be conducted by the High
              Court:
                 Provided that all the vacancies shall be fled up in the
              particular year and unfilled post shall not be carried forward.
                                                                                 G
                                  xxxxxxxxxxxxxxxxx”
       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          H
428            SUPREME COURT REPORTS                            [2023] 5 S.C.R.


A     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,
B
      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
C     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, this Court
      observed in paragraph 27 as under:-
D           “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
E           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
F           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
G           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
H
  RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH                                   429
     COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]

      to the Higher Judicial Service i.e. the District Judge cadre from         A
      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,
                                                                                B
      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            C
      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 of merit-cum-seniority. For this purpose, the High           D
      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             E
      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.”
       8.2 Thereafter, this Court directed that the recruitment to the Higher
Judicial Service, i.e., the cadre of District Judges will be 50 percent by      F
way of promotion (which has been subsequently increased to 65 percent)
from amongst the Civil Judges (Senior Division) on the basis of principle
of merit-cum-seniority and passing a suitability test. Thus, this Court has
categorically emphasised the merit-cum-seniority and passing a suitability
test for promotion in the cadre of Higher Judicial Service. That this           G
Court directed all the High Courts / States to amend the Rules /
Regulations accordingly. Therefore, the High Court framed the Gujarat
State Judicial Service Rules, 2005, in line with the directions issued by
this Court in the case of All India Judges’ Association and Ors.
(supra).
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430             SUPREME COURT REPORTS                           [2023] 5 S.C.R.


A            8.3 In the present case and as per the case on behalf of the High
      Court, so stated in the counter, the High Court has considered the merit
      only for the purpose of achieving the benchmark and thereafter has
      switched to the seniority-cum-merit and has given the promotion on the
      basis of seniority only amongst those, who have achieved the benchmark
      of 50 percent. Thus, after conducting the written test, which is one of
B
      the components to assess the suitability, the High Court has considered
      the merits only for the purpose of achieving benchmark and thereafter
      has switched to the principle of seniority-cum-merit and thereby has
      given a go-by to the principle of merit-cum-seniority. The method adopted
      by the High Court is just contrary to the observations made by this Court
C     in paragraph 27 in the case of All India Judges’ Association and
      Ors. (supra) and also contrary to the Gujarat State Judicial Service
      Rules, 2005 and the Recruitment Notice.
              8.4 We do not find anything in the Recruitment Rules, 2005 and/
      or even the Recruitment Notice to consider the merit only for the purpose
D     of achieving benchmark of 50 percent. The correct method would be to
      prepare the merit list on the basis of the four components as mentioned
      in paragraph 2 of the Recruitment Notice, from amongst those Senior
      Civil Judges (including ad-hoc Additional District Judges) having not less
      than two years of qualifying service in that cadre and thereafter to prepare
      the merit list on the basis of the aggregate marks obtained under different
E     components and thereby to give the promotion solely on the basis of
      merit, then and then only, it can be said to be following the principle of
      merit-cum-seniority. Therefore, in the present case, while giving the
      promotion in the cadre of District Judge, the High Court has given a go-
      by to the principle of merit-cum-seniority, which this Court has emphasised
F     in the case of All India Judges’ Association and Ors. (supra).
      Therefore, the High Court has adopted the wrong method.
            8.5 Now, insofar as the submission on behalf of the contesting
      respondents – promotees and the High Court that this procedure is being
      followed since 2011 and even the same is being followed in other High
G     Courts and therefore, this Court may not interfere with such a method is
      concerned, the aforesaid cannot be accepted. Merely because, a wrong
      method is being adopted cannot be a ground to perpetuate the same, if it
      is found to be illegal and/or contrary to the directions issued by this
      Court, more particularly, in the case of All India Judges’ Association
      and Ors. (supra).
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  RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH                                   431
     COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]

       8.6 Even the objection on behalf of the promotees that as this           A
Court is monitoring the process of recruitment to the post of District
Judges and, therefore, the present writ petition may not be entertained
and/or by this Bench, has no substance. What is being monitored is the
process and not the methodology adopted for promotion to the post of
District Judge. This Court is monitoring whether the time schedule fixed
                                                                                B
by this Court in the case of Malik Mazhar Sultan (supra) is being
followed or not and the posts are timely filled in or not. The mode and
method of the promotion is not the subject matter.
       8.7 Now, insofar as the reliance placed upon the decision of this
Court in the case of C.P. Kalra (supra) relied upon on behalf of the
promotees is concerned, at the outset, it is required to be noted that the      C
said decision is prior to the decision of this Court in the case of All India
Judges’ Association and Ors. (supra). In the present case, the
Recruitment Rules specifically provides that the promotion shall be given
by applying the principle of merit-cum-seniority, which is to be adhered
to.                                                                             D
       8.8 Now, insofar as the reliance placed upon the decision of this
Court in the case of V.K. Srivastava and Ors. (supra) relied upon on
behalf of the promotees is concerned, at the outset, it is required to be
noted that in the said decision, of this Court is not observing that the
principle of merit-cum-seniority is to be given a go-by. Before this Court,     E
it was submitted on behalf of the petitioners that prior to the amendment
of the Rules, promotion to the cadre of District Judge was based on the
principle of “seniority-cum-merit” and now, as per the amended Rules,
pursuant to the directions issued by this Court, the principle has been
changed to “merit-cum-seniority” and the same has seriously affected
the rights of the Civil Judges (Senior Division). However, the amended          F
Rules are applicable retrospectively and to that, this Court noted the
contention on behalf of the State that in the process of promotion, merit
alone was not being given importance. There was no direct controversy
before this Court on the principle of “merit-cum-seniority” and/or what
can be said to be the “merit-cum-seniority”. The law on the principle of        G
“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
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432            SUPREME COURT REPORTS                           [2023] 5 S.C.R.


A     and ability are approximately equal (See B.V. Sivaiah and Ors. (supra);
      Rajendra Kumar Srivastava and Ors. Vs. Samyut Kshetriya
      Gramin Bank and Ors., (2010) 1 SCC 335).
             8.9 It is required to be noted that in the present case and as per
      the merit list produced before the High Court, the candidates, who have
B     secured much more marks are denied promotion and the candidates /
      Civil Judge (Senior Division), who are having less marks / leas meritorious
      are promoted. In the present case, the petitioner No. 1 secured 135.50
      out of 200 marks and the petitioner No. 2 secured 148.50 marks out of
      200 against which a candidate having secured 101 marks have got the
      promotion, which is affecting the principle of “merit-cum-seniority”.
C
             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 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
D     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
E     writ petition finally and, therefore, may consider the question of interim
      relief, we are not disposing of the writ petition finally. Taking into
      consideration the fact that the State Government has issued the impugned
      Notification dated 18.04.2023 during the pendency of the present writ
      petition and after the receipt of the notice issued by this Court in the
      present proceedings and, thus, despite in knowledge of the present
F     proceedings, however, subject to the ultimate outcome of the present
      writ petition and as observed hereinabove, the State Government could
      have waited till the next date of hearing by this Court, which was on
      28.04.2023 and at present the respective promotees have not assumed
      their posting on the promotional post and as such are sent for training,
G     we stay the further implementation and operation of the Select List dated
      10.03.2023 issued by the High Court of Gujarat and the subsequent
      Notification dated 18.04.2023 issued by the State Government. Meaning
      thereby, the respective promotees be sent to their original posts which
      they were holding prior to their promotion vide Select List dated
      10.03.2023 and Notification dated 18.04.2023. However, it is clarified
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  RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH                                    433
     COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]

that the present stay order shall be confined with respect to those              A
promotees whose names do not figure within the first 68 candidates in
the Merit List on the basis of the merits, the copy of which is produced
by the High Court along with the counter. Meaning thereby, the promotion
of those promotees, whose names otherwise do figure in the first 68
candidates in the Merit List shall be continued as even otherwise and
                                                                                 B
even if the writ petition is allowed, in that case also, they will get the
promotion on merits.
       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          C
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.
                                                                                 D
Nidhi Jain                                                  Directions issued.
(Assisted by : Rakhi, LCRA)




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