Holding

The High Court correctly upheld Rule 27 and the promotion criteria; the appellant was not denied fair consideration and suffered no prejudice.

Summary

The appellant, a member of the Delhi Higher Judicial Service (DHJS), challenged the constitutional validity of Rule 27 of the Delhi Higher Judicial Service Rules, 1970 and the High Court's Full Court resolutions that introduced a five‑year "very good" (A) Annual Confidential Report (ACR) grading requirement for promotion to District Judge or Principal Judge, Family Court. She alleged that the criteria were ultra‑violet, applied retrospectively, were not communicated, and that she suffered prejudice in promotion and grading. The Supreme Court held that Rule 27 is a valid residuary provision and does not contravene the All India Judges Association decision, and that the High Court’s promotion criteria, modeled on IAS norms, were reasonable, implemented in a phased manner, and applied prospectively to appointments from 2012 onward. The Court found that the appellant was aware of the rules, that her case was duly considered, and that she did not suffer any prejudice from her ACR grades. Consequently, the appeal was dismissed.

Issues considered

The validity of Rule 27 of the Delhi Higher Judicial Service Rules, 1970 in light of the All India Judges Association judgment.
Whether the High Court's Full Court resolutions imposing a five‑year "A" grading requirement for promotion are arbitrary, violative of Articles 14 and 16, and retrospectively applied without notice.
Whether the appellant was denied fair and reasonable consideration for promotion to District Judge/Principal Judge, Family Court.
Whether the appellant suffered prejudice due to the manner of ACR grading and lack of point‑wise disclosure.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 233
Delhi Higher Judicial Service Rules, 1970s. Rule 27

Subjects

promotion criteriaDelhi Higher Judicial ServiceRule 27Annual Confidential Reportmerit‑cum‑seniorityArticle 14Article 16retrospective applicationuniform grading guidelinesjudicial service appointments

Judgment

[2020] 9 S.C.R. 361 361

SUJATA KOHLI A
v.
REGISTRAR GENERAL, HIGH COURT
OF DELHI & ORS.
(Civil Appeal No. 2374 of 2020) B
APRIL 24, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Delhi Higher Judicial Service Rules, 1970: r.27 – Challenge
to r.27 as being ultravires particularly with reference to decision of
C
Supreme Court in All India Judges Association – High Court rejected
the challenge – Held: High Court rightly rejected challenge to r.27
because this residuary clause in the Rules of 1970 does not offend
the law declared in All India Judges Association in any manner – This
residuary clause is not of equating the judicial officers with the
executive officers but only provides that in regard to the matters for D
which no provision or insufficient provision has been made in the
Rules of 1970, the relevant rules, directions or orders as applicable
to IAS shall regulate the conditions of service of the officers of
DHJS – A perusal of the other provisions in the Rules of 1970 makes
it clear that reference to the service conditions of the members of
E
IAS is not an anathema to these rules and, on the contrary, wherever
necessary, the applicable rules, orders or directions concerning
the members of IAS do govern the service conditions of the judicial
officers too – High Court establishment provided by way of the
impugned resolutions norms for promotion while taking cue from
the norms applicable to the members of IAS in the equivalent pay F
scale – Providing for such norms does not in any manner stand at
conflict with the principles laid down in the case of All India Judges
Association.
Delhi Higher Judicial Service Rules, 1970: Merit-cum-
seniority – Criteria for promotion to the posts of District and Sessions G
Judges – Implementation of revised criteria in phased manner –
Challenged – Held: High Court, in its Full Court meeting dated
28.04.2009 had adopted a resolution to the effect that, for being
selected/promoted as District and Sessions Judge, a candidate of
DHJS ought to fulfil the criteria of possessing at least two ‘A’ (very
H
361
362 SUPREME COURT REPORTS [2020] 9 S.C.R.

A good) and three ‘B+’ (good) ACR gradings for the preceding five
years from the date of consideration for such appointment –
Thereafter, in its Full Court meeting dated 15.01.2010, the High
Court proceeded to modify the said criteria to the effect that a
candidate of DHJS ought to possess the minimum ‘A’ (very good)
grading in ACRs of each of the five years under consideration – As
B
against resolution dated 15.01.2010, the High Court received certain
representations, including those from the Associations of the Officers
and, upon consideration of these representations, a committee
comprising of four Judges recommended for implementation of the
revised criteria in a phased manner; and such recommendations of
C the committee were accepted by the Full Court of the High Court –
In the given fact situation and the methodology of gradual
implementation adopted by the High Court, the suggestion on the
part of the appellant that there had been any so-called retrospective
operation of revised criteria was totally bereft of substance – In
view of the duties and responsibilities attached with the higher posts
D
of District and Sessions Judge and Principal Judge, Family Court,
the High Court cannot be faulted in providing for a reasonable
method of assessment of the requisite merit in the manner that a
candidate in the zone of consideration ought to be possessing
minimum five “very good” ACRs in the preceding five years from
E the base year – In fact, the criteria so adopted had been the identical
one as provided for the members of IAS in the equivalent pay scales
– High Court did not change the eligibility criteria for appointment
to the post of District and Session Judge or Principal Judge, Family
Court but merely evolved a selection criteria for evaluation of eligible
candidates – There was no denial of a pre-existing right of the
F
appellant, who entered the zone of consideration only in the year
2014-15 whereas, the criteria in question was implemented for
appointments made from the year 2012.
Delhi Higher Judicial Service Rules, 1970: r.27 – Whether
the appellant was denied fair and reasonable consideration of her
G case for promotion to the posts of District and Sessions Judge/
Principal judge, Family Court by operation of criteria laid down in
the impugned resolutions – Held: Appellant was a member of DHJS
– By virtue of r.27, she would be deemed to be having constructive
knowledge that the criteria to be adopted for upward progression
H would be that as applicable for the equivalent posts in IAS – When
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 363
OF DELHI

it had consistently been provided that for promotion to the scale of A
Rs. 18,400-22,400 and above, the prescribed benchmark of “very
good” ought to be met in all ACRs of five years under consideration;
and when the higher posts of District and Sessions Judge and
Principal Judge, Family Court do carry much higher scales of pay,
neither the High Court could be faulted in applying the same
B
benchmark for such higher posts in DHJS nor the appellant could
feign ignorance about the same – Apart from that in the 1970 Rules,
the entry level promotion to the post in DHJS is on the basis of
merit-cum-seniority or merit – In the light of such requirements, any
upward progression in DHJS could only be on the higher
requirements of merit and in any case, such requirements cannot be C
lesser than the requirements at entry level – Appellant was conscious
of the fact that for upward movement in DHJS, merit would acquire
primacy; and that seniority alone was not going to be decisive for
promotion to the higher posts of District and Sessions Judge and
the Principal Judge, Family Court – Appellant was also conscious
D
of the position that while making any such promotion, the assessment
would be based on the competitive merit of the candidates in the
zone of consideration; and if any candidate in such zone of
consideration was possessed of better merit than herself, he would
be preferred for promotion – Thus, appellant was not denied fair
and reasonable consideration of her case for promotion to the posts E
of District and Sessions Judge/ Principal Judge, Family Court by
operation of the criteria laid down in the impugned resolutions.
Judicial Officer – ACR grading – Whether the appellant
suffered any prejudice in the matter of ACR grading – It is not in
dispute that the appellant was informed of every grading made in F
her ACR – She was awarded ‘B+’ (good) in the years 2010, 2011,
2012 and 2013; and ‘A’ (very good) in the year 2014 – Material
placed on record showed that the appellant never challenged her
gradings for any year except that for the year 2011 when she
requested for upgradation of her ACR grading from ‘B’ to ‘B+’ or
‘A’; and the High Court, acceding to her request, upgraded her G
ACR to ‘B+’ – Impugned resolution dated 27.01.2011 came to be
adopted after due consideration of the representations made to the
High Court and in conformity with the criteria provided by the
Government of India for the posts equivalent in scale to that of
District Judges – However, the criteria of having ‘A’ (very good) H
364 SUPREME COURT REPORTS [2020] 9 S.C.R.

A grading in the preceding five years was implemented in a phased
manner – Appellant, not being oblivious of the position that for any
upward progression in DHJS, comparative merit would be a key
factor, chose to remain contented with her grading at ‘B+’ in the
relevant years and did not question the same at the appropriate
time and in appropriate manner – That being the position, the
B
appellant cannot be acceded the right to contend now and at this
stage that the ACR gradings have operated adverse to her – While
raising grievance with regard to the impact and effect of ACR
gradings, the appellant appears to have missed out the fundamental
factor that for the promotions in question, an individual’s minimum
C merit, by itself, was not going to be decisive; but the relevant factor
was going to be comparative merit of the persons in the zone of
consideration – That being the position, when the persons in zone
of consideration possessing ‘A’ (very good) grading have been
promoted in preference to her, the appellant cannot raise a grievance
about her gradings after such promotions – Appellant was not able
D
to establish that she had suffered any prejudice in the matter of
ACR gradings.
Dismissing the appeal, the Court
HELD: 1.1 The criteria in question, for promotion to the
E post of District and Sessions Judge and equivalent, had been
evolved and operated by the High Court in the purported exercise
of its powers under the Delhi Higher Judicial Service Rules, 1970.
The matter in the present appeal relates to promotion to the
posts of District and Sessions Judge or Principal Judge, Family
Court within the cadre of DHJS. Apparently, no separate provision
F is found in the Rules of 1970 as regards such upward progression
within the cadre and obviously, for such a matter, the residuary
provision as contained in Rule 27 comes into operation by virtue
of which, the directions or orders for the time being in force and
applicable to the officers of comparable status in IAS would apply.
G [Paras 15.2, 15.3][396-H; 397-A; 398-D-E]
1.2 The appellant had attempted to question the said Rule
27 of the Rules of 1970 as being ultra vires, particularly with
reference to the decision of this Court in the case of All India
Judges Association. The High Court rightly rejected such a
H challenge to Rule 27 because this residuary clause in the Rules
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 365
OF DELHI

of 1970 did not appear offending the law declared by this Court in A
any manner. This residuary clause is not of equating the judicial
officers with the executive officers but only provides that in regard
to the matters for which no provision or insufficient provision
has been made in the Rules of 1970, the relevant rules, directions
or orders as applicable to IAS shall regulate the conditions of
B
service of the officers of DHJS. A perusal of the other provisions
in the Rules of 1970 makes it clear that reference to the service
conditions of the members of IAS is not an anathema to these
rules and, on the contrary, wherever necessary, the applicable
rules, orders or directions concerning the members of IAS do
govern the service conditions of the judicial officers too. [Para C
15.3][398-E-H]
All India Judges Association v. Union of India: (1993)
4 SCC 288 : [1993] 1 Suppl. SCR 749 – referred to.
2.1 The striking feature of the Rules of 1970 is that even
at the entry level, the promotions are to be made either on merit- D
cum-seniority basis or on merit basis. Further, grant of Selection
Grade and Super Time Scale is also on assessment of merit-cum-
seniority. In the given scheme of the Rules of 1970, it is difficult
to countenance any suggestion that in DHJS, merit could be
forsaken at any level or only seniority be given primacy in the E
matter relating to upward progression to the higher posts of
District and Sessions Judge or Principal Judge, Family Court.
Rather, looking to the nature of posts, in every higher
progression, merit would play a major role and would, perforce,
acquire primacy. [Para 16][401-E-F]
F
2.2 As per the facts available on record, prior to the year
2008, there was only one sanctioned post of District Judge under
the Rules of 1970. Later on, the National Capital Territory of
Delhi came to be bifurcated into nine Civil Districts and in view
of such bifurcation, the strength of District and Sessions Judges
was increased to 11. This reorganisation and increase of strength G
of the cadre of DHJS, obviously, led to the requirement of
providing the norms and criteria for promotion to the posts of
District and Sessions Judges and equivalent because no such
norms and criteria were in existence. In keeping with such
requirements, the High Court, in its Full Court meeting dated H
366 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 28.04.2009, adopted a resolution to the effect that, for the purpose
of being selected/promoted as District and Sessions Judge, a
candidate of DHJS ought to fulfil the criteria of possessing at
least two ‘A’ (very good) and three ‘B+’ (good) ACR gradings for
the preceding five years from the date of consideration for such
appointment. Thereafter, in its Full Court meeting dated
B
15.01.2010, the High Court proceeded to modify the aforesaid
criteria to the effect that for being promoted as District and
Sessions Judge, a candidate of DHJS ought to possess the
minimum ‘A’ (very good) grading in ACRs of each of the five
years under consideration. It had been the case of the respondent
C High Court that such criteria were adopted as being equivalent
to the revised promotion criteria in the Indian Administrative
Services by virtue of the residuary provision contained in Rule
27. As against the aforesaid resolution dated 15.01.2010, the High
Court received certain representations, including those from the
Associations of the Officers and, upon consideration of these
D
representations, a committee comprising of four Judges, in its
report dated 08.10.2010, recommended for implementation of
the revised criteria in a phased manner; and such
recommendations of the committee were accepted by the Full
Court of the High Court on 27.01.2011. In this manner aforesaid,
E the respondent High Court took the decision to implement the
revised criteria envisaged by the resolution dated 15.01.2010 in
a phased manner; and the requirements came to be provided
that for appointment to the post of District and Sessions Judge, a
candidate should, in the five years preceding the base year, carry
the ACR gradings as follows: (i) for the year 2009, at least two
F
‘A’ (very good) and the remaining three ‘B+’ (good); (ii) for the
year 2010, at least three ‘A’ (very good) and the remaining two
‘B+’ (good);(iii) for the year 2011, at least four ‘A’ (very good)
and the remaining one ‘B+’ (good); and (iv) for the year 2012 and
onwards, a minimum of five ‘A’ (very good). Further, the
G Administrative Committee of the High Court, in its meeting dated
13.09.2013, resolved, inter alia, that the post of Principal Judge,
Family Court being equivalent to that of District and Sessions
Judge, the same criteria be also adopted for appointment of
Principal Judge, Family Court. [Para 17][401-H; 402-A-H; 403-
A-B]
H
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 367
OF DELHI

2.3 The views of the High Court in the impugned order A
were correct that the no-norms position for upward progression
in DHJS, as existing prior to the year 2009, could not have been
continued with reorganisation of the District Courts and certain
norms, commensurate with the posts in question, were required
to be provided; and were accordingly provided with reference to
B
the prescriptions for the officers of IAS in the equivalent pay
scales. For the officers of such equivalent pay scales, the
requirement had been of five “very good” ACR gradings (i.e.,
‘A’ grading) for five years preceding the date of consideration for
higher positions. The High Court establishment had further been
reasonable in its approach when such threshold requirement of C
five “very good” ACR gradings was not foisted on the officers
immediately and, in keeping with the position obtainable in the
past as also keeping in view the merit requirements, took a
considered decision that such criteria be implemented gradually
and started with the norms of two “very good” with three “good”
D
ACR gradings for the year 2009 and systematically enhanced the
norms. In the given fact situation and the methodology of gradual
implementation adopted by the High Court, the suggestion on
the part of the appellant that there had been any so-called
retrospective operation of revised criteria remains totally bereft
of substance and could only be rejected. [Paras 17.1, 17.2][403- E
C-G]
3.1 The submissions on behalf of the appellant that she was
not made aware of such so-called revised criteria carry several
shortcomings of their own. The appellant joined DHJS in the year
2002. She was confirmed with effect from 25.11.2004. She was, F
and would always be presumed to be, aware of all the requirements
of the Rules of 1970. Moreover, the appellant, a member of DHJS,
cannot suggest that she remained oblivious of the developments
about creation of nine Civil Districts in the year 2008 and increase
in the strength of District and Sessions Judges to 11. The
appellant was also aware of the fact that no specific provision was G
available in the Rules of 1970 as regards upward progression in
DHJS, particularly to the posts of District and Sessions Judge
and Principal Judge, Family Court and hence, by virtue of Rule
27 of the Rules of 1970, she would be deemed to be having
constructive knowledge that the criteria to be adopted for such H
368 SUPREME COURT REPORTS [2020] 9 S.C.R.

A upward progression would be that as applicable for the equivalent
posts in IAS. When it had consistently been provided that for
promotion to the scale of Rs. 18,400-22,400 and above, the
prescribed benchmark of “very good” ought to be met in all ACRs
of five years under consideration; and when the higher posts of
District and Sessions Judge and Principal Judge, Family Court
B
do carry much higher scales of pay, neither the High Court could
be faulted in applying the same benchmark for such higher posts
in DHJS nor the appellant could feign ignorance about the same.
Apart from that, in the Rules of 1970, even the entry level
promotion to the post in DHJS is on the basis of merit-cum-
C seniority or merit. Viewed in the light of such requirements, it
goes without saying that any upward progression in DHJS could
only be on the higher requirements of merit and in any case,
such requirements cannot be lesser than the requirements at
entry level. [Paras 18, 18.1][403-H; 404-A-G]
D 3.2 The appellant was aware of, and shall always be deemed
to be conscious of, the requirement that any promotion to the
post of District and Sessions Judge or Principal Judge, Family
Court would only be on the basis of such norms where merit
would be a crucial factor and seniority alone would not suffice. It
follows as a necessary corollary that the appellant was also
E conscious of the position that while making any such promotion,
the assessment would be based on the competitive merit of the
candidates in the zone of consideration; and if any candidate in
such zone of consideration was possessed of better merit than
herself, he would be preferred for promotion. [Para 18.3][405-E-
F F]
4.1 Coming now to the operation of the criteria in question,
providing for the norms for assessment of the comparative merits
of the candidates in the zone of consideration, was squarely within
the domain of the High Court; and infringement of the right of
G consideration could only be suggested if different yardsticks or
different norms were provided and applied qua the similarly
circumstanced persons. However, this is not the case of the
appellant nor it could be so because the High Court has apparently
taken up all the persons in the zone of consideration at the
relevant time and has accorded promotion on the basis of
H
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 369
OF DELHI

comparative merit of the candidates. The appellant, when could A
not stand in such competitive merit position, cannot raise a
complaint about infringement of any of her legal rights. It is not
the case of the appellant that anybody junior to her and standing
equal in merit or anybody not fulfilling the criteria laid down by
the High Court has been promoted. [Para 19][405-G-H; 406-A-
B
B]
4.2 Looking to the duties and responsibilities attached with
the higher posts of District and Sessions Judge and Principal
Judge, Family Court, the High Court cannot be faulted in
providing for a reasonable method of assessment of the requisite
merit in the manner that a candidate in the zone of consideration C
ought to be possessing minimum five “very good” ACRs in the
preceding five years from the base year. In fact, the criteria so
adopted had been the identical one as provided for the members
of IAS in the equivalent pay scales. [Para 19][406-C-D]
4.3 The material placed on record show that the case of the D
appellant was duly considered for such promotion along with the
other incumbents but herself and a few others were not promoted
for not fulfilling the criteria as provided in the impugned
resolutions. The High Court did not change the eligibility criteria
for appointment to the post of District and Session Judge or E
Principal Judge, Family Court but merely evolved a selection
criteria for evaluation of eligible candidates. There had not been
any denial of a pre-existing right of the appellant, who entered
the zone of consideration only in the year 2014-15 whereas, the
criteria in question was implemented for the appointments made
from the year 2012. The appellant has not been denied fair and F
reasonable consideration of her case for promotion to the posts
of District and Sessions Judge by operation of the criteria laid
down in the impugned resolutions. [Paras 21, 22, 23][406-E-F;
407-B-D]
5.1 It is not in dispute that the appellant was, in fact, G
informed of every grading made in her ACR. She was awarded
‘B+’ (good) in the years 2010, 2011, 2012 and 2013; and ‘A’ (very
good) in the year 2014. She never challenged her gradings for
any year except that for the year 2011 when she requested for
H
370 SUPREME COURT REPORTS [2020] 9 S.C.R.

A upgradation of her ACR grading from ‘B’ to ‘B+’ or ‘A’; and the
High Court, acceding to her request, upgraded her ACR to ‘B+’.
The appellant, not being oblivious of the position that for any
upward progression in DHJS, comparative merit would be a key
factor, chose to remain contented with her grading at ‘B+’ in the
relevant years and did not question the same at the appropriate
B
time and in appropriate manner. That being the position, she
cannot be acceded the right to contend now and at this stage that
the ACR gradings have operated adverse to her. [Para 25.1][409-
D-G]
5.2 The other contention as on behalf of the appellant that
C only the overall ACR grading was communicated but not the point-
wise grading or criteria for grading, again, does not advance the
cause of the appellant in any manner. The appellant failed to show
any legal requirement on the respondent establishment to supply
to her anything other than the overall grading. Also the grading
D of an individual officer remains a matter between the officer and
the establishment and any other officer cannot claim to be
informed about the grading of any other officer as a matter of
right. The system and method for awarding of the grades in ACR
at the relevant time was equally applicable to all the judicial
officers; and the gradings, not only of the appellant but of all other
E officers too, were made by way of the same methodology. Therein
too, the judicial officers’ work and performance was supervised
and graded by the committees comprising of three Judges and
ultimately, the gradings were finalised by the Full Court. In the
impugned order also, the High Court found such system to be a
F merited one but indicated the want of uniform set of rules or
guidelines for all the appraisal committees to follow; and thereafter
proceeded to lay down certain norms to be kept in view by the
evaluation authorities. The observations by the High Court,
essentially meant for improvement of the system with uniform
set of guidelines, do not nullify the effect of the ACRs already
G marked by the existing system. The guidelines indicated by the
High Court in the order impugned could only be construed as
being meant for future implementation. Nothing turns upon such
observations in relation to the case of the appellant. The appellant
has not been able to establish that she had suffered any prejudice
H in the matter of ACR gradings. [Paras 27, 28, 29][410-C-H; 411-
A-C]
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 371
OF DELHI

Ajit Singh and Ors. (II) v. State of Punjab and Ors. A
(1999) 7 SCC 209 : [1999] 2 Suppl. SCR 521;
Chandramouleshwar Prasad v. Patna High Court AIR
1970 SC 370; Central Council for Research in
Ayurveda & Siddha and Anr. v. Dr. K. Santhakumari
(2001) 5 SCC 60 : [2001] 3 SCR 519; Dev Dutt v. Union
B
of India (2008) 8 SCC 725 : [2008] 8 SCR 174;
Sukhdev Singh v. Union of India (2013) 9 SCC 566 :
[2013] 5 SCR 1004 – relied on.
State of U.P. v. Mahesh Narain (2013) 4 SCC 169 :
[2013] 4 SCR 534; Nirmal Chandra Bhattachargee &
Ors. v. Union of India & Ors. (1991) 2 Suppl. SCC 363 C
– distinguished.
State of Bihar v. Bal Mukund Sah (2000) 4 SCC 640 :
[2000] 2 SCR 299; Haryana State Electronics
Development Corporation Limited and Ors. v. Seema
Sharma and Ors. (2009) 7 SCC 311 : [2009] 7 SCR D
662 – referred to.
Case Law Reference
[1993] 1 Suppl. SCR 749 referred to Para 7.1
[2000] 2 SCR 299 referred to Para 9 E
[2009] 7 SCR 662 referred to Para 11.2
[1999] 2 Suppl. SCR 521 relied on Para 15.1
AIR 1970 SC 370 relied on Para 15.2
[2001] 3 SCR 519 relied on Para 15.4.2 F

[2013] 4 SCR 534 distinguished Para 22
(1991) 2 Suppl. SCC 363 distinguished Para 22
[2008] 8 SCR 174 relied on Para 25
G
[2013] 5 SCR 1004 relied on Para 25
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2374
of 2020.
From the Judgment and Order dated 21.08.2018 of the High Court
of Delhi at New Delhi in Civil Writ Petition No. 3157 of 2015 H
372 SUPREME COURT REPORTS [2020] 9 S.C.R.

A Indira Jaising, A. Mariarputham, Sr. Advs., Sunil Fernandes,
Ms. Nupur Kumar, Ms. Nehmat Kaur, Paras Nath Singh, Zeeshan Diwan,
Priyansha I. Sharma, Gautam Narayan, Ms. Asmita Singh, Adithya Nair,
Chirag M. Shroff, Ms. Mahima C. Shroff, Ms. Yashika Verma, Advs.
for the appearing parties.
B The Judgment of the Court was delivered by
DINESH MAHESHWARI J.
PRELIMINARY AND BRIEF OUTLINE
1. Leave granted.
C 2. This appeal by special leave is directed against the judgment
and order dated 21.08.2018 as passed by the High Court of Delhi at
New Delhi in W.P. (C) No. 3157 of 2015, whereby the High Court
dismissed the petition filed by the appellant, a member of Delhi Higher
Judicial Service1, seeking to challenge the constitutional validity of Rule
D 27 of the Delhi Higher Judicial Service Rules, 19702 and the Full Court
resolutions dated 28.04.2009, 15.01.2010 and 27.01.2011 3 concerning
the criteria for appointment of a member of higher judicial service to the
post of District Judge and Sessions Judge or its equivalent.
3. While passing the order impugned, the High Court upheld the
gradual implementation of the eligibility criteria for promotion to the post
E
of District and Sessions Judge or equivalent with reference to the gradings
in the Annual Confidential Reports4 in five years preceding the base
year of consideration. However, while concluding on the matter, the
High Court also made certain observations on desirability of uniform
norms for award of such gradings; and issued directions for evolving
F uniform grading system for future implementation.
RELEVANT RULES AND FULL COURT RESOLUTIONS
4. For comprehension of the principal submissions and the issues
raised in this appeal, appropriate it would be to take note of the relevant
rules and the relevant part of the impugned resolutions at the outset.
G

1
‘DHJS’ for short.
2
Hereinafter also referred to as ‘the Rules of 1970’.
3
Hereinafter also referred to as ‘the impugned resolutions’.
4
H ‘ACR’ or ‘ACRs’ for short
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 373
OF DELHI [DINESH MAHESHWARI, J.]

4.1. The relevant provisions concerning recruitment to the posts A
in the cadre of Higher Judicial Service are contained in Rule 7 in the
Rules of 1970. Rule 7(1), in its present form, reads as under:-
“7. Regular recruitment.- (1) Recruitment to the posts in the
cadre of District Judge at Entry Level shall be as under:
(a) 65 percent by promotion from amongst the Civil Judges (Senior B
Division), having a minimum ten years service in the cadre of
Delhi Judicial Service, on the basis of principle of merit-cum-
seniority;
(b) 10 percent by promotion strictly on the basis of merit through
limited competitive examination of Civil Judges (Senior Division) C
having not less than five years qualifying service; and
(c) 25 percent of the posts shall be filled by direct recruitment
from amongst the persons eligible as per rule 7C on the basis of
the written and viva voce test, conducted by the High Court.”
D
4.1.1. The provisions contained in Rule 7A of the Rules of 1970,
as substituted by the notification dated 27.10.2009 and amended by
notification dated 22.12.2011 could also be noticed as under:-
“7A. Selection for Promotion on the basis of merit and
suitability.- Recruitment by promotion under clause (a) of sub-
E
rule (1) of Rule 7 above shall be made by selection on the basis of
merit-cum-seniority.”
4.1.2. The matters relating to appointment, probation and
confirmation are provided in Rules 12 to 15 in Part IV of the Rules of
1970, which are as follows:–
F
“12. (1) Persons appointed to the service at the initial recruitment
shall stand confirmed with effect from the date of appointment.
(2) All other candidates on appointment to permanent post shall
be on probation for a period of two years.
EXPLANATION: - The period during which an officer holds a G
temporary post will be counted towards probation but he will be
confirmed only when a permanent post is available.
13. All persons appointed’ to the service on probation shall be
confirmed at the end of the said period of two years.
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374 SUPREME COURT REPORTS [2020] 9 S.C.R.

A Provided that the Administrator may, on the recommendation
of the High Court, extend the period of probation, but in no case
shall the period of probation extend beyond the period of three
years.
14. The services of a person appointed on probation are liable to
B be terminated without assigning any reason.
15. After successful completion of the period of probation the
officer shall be confirmed in the service by the Administrator in
consultation with the High Court .and the same shall be notified in
the Delhi Gazette.”
C 4.1.3. In Part VI of the Rules of 1970, the provisions regarding
pay and allowances have been made; and these provisions also specify
the method of assessment for granting Selection Grade and Super Time
Scale. Rules 18 to 20 in this Part VI read as under5: –
“18. The pay scales of the Service shall be as follows:
D
1. District Judges Entry level Time Scale Rs,16750-
(Addl. District Judges) 400-19150-
450-20500
2. Selection Grade [limited to 25% of cadre Rs,18750-
posts of District Judges Entry level Time 400-19150-
Scale (Additional District Judges) and will 45021850-
be given to those having not less than five 500-22850
E years of continuous service in the cadre on
assessment of merit-cum-seniority]
3. District Judges (Super time scale) (This Rs,22850-
scale would also be available to 10% of the 500-24850
cadre strength of District Judges, and
would be given to those who have put in
not less than three years of continuous
F service in selection grade on assessment of
merit-cum-seniority)

19. The initial pay of a direct recruit shall be the initial pay in the
time scale mentioned in rule 18.
Provided that the Administrator may, on the recommendation
G of the High Court, give advance increments to suitable candidates
appointed to the service.

5
Rule 18 came to be substituted by way of the notification dated 22.10.2008.
H
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 375
OF DELHI [DINESH MAHESHWARI, J.]

20. The pay of a promoted officer shall be fixed in the aforesaid A
time scale in accordance with the financial rules, regulations, orders,
or directions, applicable from time to time, to members of the
lAS.”
4.1.4. We may also take note of Rule 26 in Part VII of the Rules
of 1970 which reads as under: – B

“26. Direct recruits will have to produce before appointment a
certificate of physical fitness in accordance with the standards
prescribed for the lAS.”
4.1.5. Rule 27 of the Rules of 1970, providing for residuary matters, C
that had been questioned by the appellant as being ultra vires, reads as
under: –
“27. RESIDUARY MATTERS:- In respect of all such matters
regarding the conditions of service for which no provision or
insufficient provision has been made in these rules, the rules, D
directions or orders for the time being in force, and applicable to
officers of comparable status in the Indian Administrative Service
and serving in connection with the affairs of the Union of India
shall regulate the conditions of such service.”
5. Having taken note of the rules that are directly relevant for the E
case at hand as also the rules that may have some bearing on the issues
raised, we may now refer to the Full Court resolutions which form the
subject matter of this litigation.
5.1. In its Full Court meeting dated 28.04.2009, the High Court
adopted a resolution to the effect that, for the purpose of being selected/ F
promoted as District and Sessions Judge, a candidate of Higher Judicial
Service ought to fulfil the criteria of possessing at least two ‘A’ (very
good) and three ‘B+’ (good) in the ACR gradings for the preceding five
years from the date of consideration for such appointment. This Full
Court Resolution dated 28.04.2009 reads as under:- G
“Discussed. It was resolved as under:-
(i) The following shall be adopted as the zone of consideration for
selection of officers for appointment as District Judges:-
H
376 SUPREME COURT REPORTS [2020] 9 S.C.R.

A No. of No. of officers
Vacancies within zone of
consideration
1 5
2 8
3 10
4 12
5 14
B 6 16
7 18
8 20
9 22

In the case of Sessions Judge, the zone of consideration would be
C restricted to officers already appointed as District Judges including
on proforma basis.
(ii) The officers who would be, or likely to be, in the zone of
consideration for appointment/selection to the post of District Judge
in a particular year shall be under the control of the Committee of
D Inspecting Judges headed by Hon’ble the Chief Justice in the
preceding year and in the year in question.
(iii) For evaluation of such officers, as are mentioned in the
preceding clause, detailed remarks shall be recorded in the ACRs
by the Committee mentioned above.
E (iv) For evaluation of the officers within the zone of consideration
for “selection by merit”, the following criteria shall be taken into
account:-
(a) ACR grading for the last 5 years in which the gradings for at
least 2 years (including the 5th year) must be minimum “A” (Very
F Good), the officer having secured in the remaining 3 years no less
than “B+” (Good) grading. However, in the case of SC/ST officers,
this criteria shall be relaxed so as to require minimum “B+” (Good)
grading in each of the 5 years.
(b) Vigilance report.
G (c) Disposal figures for the last 5 years.
(d) Administrative capabilities.
(e) General reputation for honesty & integrity and conduct.”
5.2. However, the prescription aforesaid was modified by another
H Full Court resolution dated 15.01.2010 to the effect that for being
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 377
OF DELHI [DINESH MAHESHWARI, J.]

selected/promoted as District and Sessions Judge, a candidate of Higher A
Judicial Service ought to possess the minimum ‘A’ (very good) grading
in ACRs of each of the five years under consideration. It had been the
case of the respondent High Court that such criteria were adopted as
being equivalent to the revised promotion criteria in the Indian
Administrative Services6. The relevant part of the said resolution dated
B
15.01.2010 reads as under:-
“(a) The clause regarding relaxation in ACR gradings for SC/ST
officers is deleted.
(b) The criteria in para 9(iv) (a) is modified so as to require ACR
gradings for each of the five years under consideration to be C
minimum ‘A’ (Very Good) for all categories.”
5.3. As against the aforesaid resolution dated 15.01.2010, the High
Court received certain representations, including those from Delhi Higher
Judicial Services Association as also from Delhi Judicial Services
Association. These representations were considered by the Full Court D
of the High Court in its meeting held on 06.07.2010 wherein it was
resolved that a Committee be constituted by the Chief Justice to look
into the issue of desirability of change of criteria for appointment to the
post of District Judge. Pursuant to this resolution, Hon’ble the Chief
Justice of the High Court, by his order dated 27.08.2010, constituted a
committee comprising of four Hon’ble Judges. This Committee, in its E
report dated 08.10.2010, recommended for implementation of the revised
criteria in a phased manner as under:-
“We find that the post of District Judge is to be manned by officers
of Delhi Higher Judicial Service in Super Time Scale of Rs.22850-
24850 (pre-revised). Having regard to the revised guidelines as F
circulated vide Govt. of India, DoPT O.M. No. 22011/3/2007-
Estt(D) dated 18th February 2008 wherein it has been mentioned
that the DPC may ensure that for promotion to the scale of
Rs.18,400-22,400 (pre-revised) and above, the prescribed
benchmark of ‘Very Good’ is invariably met in all ACRs of five G
years under consideration, we are of the opinion that the existing
criteria for appointment to the post of District Judge requiring
ACR gradings for each of the five years under consideration to
be minimum ‘A’ ‘Very Good) for all categories, should be
6
‘IAS’ for short H
378 SUPREME COURT REPORTS [2020] 9 S.C.R.

A maintained. However, since the criteria of “at least two ACR
gradings of ‘A’ (Very Good) and remaining three ACR gradings
of ‘B +’ (Good)” fixed on 28th April, 2009 was changed to “ACR
gradings for each of the five years to be minimum ‘A’ (Very Good)”
on 15th January 2010, we are of the opinion that the implementation
of the said criteria should be in phased manner as under:-
B
(i) At least two ACR gradings of ‘A’ (Very Good) and remaining
three ACR gradings of ‘B+’ (Good) out of the ACR gradings
for the last 5 years under consideration (2004-2008) for the
year 2009;
C (ii) At least three ACR gradings of ‘A’ (Very Good) and remaining
two ACR gradings of ‘B+’ (Good) out of the ACR gradings
for the last 5 years under consideration (2005-2009) for the
year 2010;
(iii) At least four ACR gradings of ‘A’ (Very Good) and remaining
D one ACR grading of ‘B+’ (Good) out of the ACR gradings for
the last 5 years under consideration (2006-2010) for the year
2011; and
(iv) ACR grading for each of the five years to be minimum ‘A’
(Very Good) for the last 5 years under consideration (2007-
E 2011) for the year 2012 and onwards.
We recommend that the cases for appointment to the post of
District Judge be considered/reviewed applying the aforesaid
criteria as proposed.”
5.3.1. The aforementioned recommendations of the Committee
F were accepted by the Full Court in its meeting held on 27.01.2011.
5.4. In the manner aforesaid, the respondent High Court took the
decision to implement the revised criteria envisaged by the aforesaid
resolution dated 15.01.2010 in a phased manner; and the requirements
came to be provided that for appointment to the post of District and
G Sessions Judge, a candidate should, in the five years preceding the base
year, carry the ACR gradings as follows:
(i) for the year 2009, at least two ‘A’ (very good) and the remaining
three ‘B+’ (good);
(ii) for the year 2010, at least three ‘A’ (very good) and the
H remaining two ‘B+’ (good);
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 379
OF DELHI [DINESH MAHESHWARI, J.]

(iii) for the year 2011, at least four ‘A’ (very good) and the remaining A
one ‘B+’ (good); and
(iv) for the year 2012 and onwards, a minimum of five ‘A’ (very
good).
5.5. From the material placed on record by the respondent No. 1
with an application (IA No. 134092 of 2019), it appears further that the B
Administrative and General Supervision Committee of the High Court,
in its meeting held on 13.09.2013, resolved, inter alia, that the post of
Principal Judge, Family Court being equivalent to that of District and
Sessions Judge, the same criteria be also adopted therefor. This resolution
was duly given effect to in the Full Court meeting by circulation dated C
28.01.2014 as also in the subsequent Full Court resolutions.
5.6. With reference to the grievance of the appellant against denial
of promotion to the post of District and Sessions Judge or equivalent, we
may also take note of a few of the relevant subsequent Full Court
resolutions, that have been placed on record by the respondent No. 1 D
with the said application, IA No. 134092 of 2019.
5.6.1. It is noticed that for the purpose of the Full Court meeting
by circulation dated 09.01.2015, the position obtainable in the wake of
the aforesaid three resolutions dated 28.04.2009, 15.01.2010 and
27.01.2011, was detailed out in the note prepared by the registry of the E
High Court. Thereafter, the Full Court proceeded to adopt the resolution
for appointment against the vacancies that had arisen to the posts of
District and Sessions Judge and Principal Judge, Family Court for various
reasons, including those of elevation of some of the incumbents to the
High Court. Noticeably, the cases of all the persons falling in the zone of
consideration were considered, including that of the appellant; and while F
making recommendations for appointment, some of the incumbents,
including the appellant, were not found fit for such appointment on the
basis of the criteria laid down in the aforesaid resolutions dated 28.04.2009,
15.01.2010 and 27.01.2011. The relevant part of this resolution dated
09.01.2015 reads as under: – G
“(i) Mr. Yogesh Khanna, Ms. Ravinder Kaur and Mr. Talwant
Singh, already District Judges under next below rule be
recommended for appointment as District Judge on regular basis
w.e.f. 15.12.2014 against three vacancies of District Judges which
have arisen w.e.f. 15.12.2014 consequent upon elevation of
H
380 SUPREME COURT REPORTS [2020] 9 S.C.R.

A Hon’ble Mr. Justice P.S. Teji, Hon’ble Mr. Justice I.S. Mehta and
Hon’ble Mr. Justice R. K. Gauba as Additional Judges of this
Court on 15.12.2014.
Against the vacancy fallen vacant consequent upon
elevation of Hon’ble Ms. Justice Sangita Dhingra Sehgal as
B Additional Judges of this Court, the names of officers in the zone
of consideration were considered and it was decided that on the
criteria of ‘selection by merit’ as laid down by the Full Court
decision dated 28.4.2009 and modified by Full Court decisions
dated 15.1.2010 and 27.1.2011 , the name of Mr. T.R. Naval,
DHJS be recommended for appointment to the post of District
C Judge on regular basis with effect from the date he takes over.
Against the consequential vacancies on account of District
Judges being on deputation, the names of officers in the zone of
consideration were considered and it was decided that on the
criteria of ‘selection by merit’ as laid down by the Full Court
D decision dated 28.4.2009 and modified by Full Court decisions
dated 15.1.2010 and 27.1.2011, the names of Mr. Rakesh Sidhartha,
Mr. Amar Nath, Mr. Pradeep Chadha and Mr. Brijesh Sethi, DHJS
be recommended for appointment to the post of District Judge
under next below rule with effect from the date they take over.
E Since Ms. Asha Menon, DHJS is on deputation as Member
Secretary, NALSA, her name be also recommended to the Govt.
of NCT of Delhi for appointment as District Judge on proforma
basis with effect from the date her juniors take over.
Mr. S.C. Malik, Mr. R. P.S. Teji, Mr. S.C. Rajan, Mr.
F Mahavir Singhal, Mr. D.K. Malhotra, Mr. Sukhdev Singh, Mr.
Rajnish Bhatnagar and Mr. Narender Kumar Sharma, DHJS were
not found fit for appointment to the post of District Judge on the
criteria of ‘selection by merit’ as laid down by the Full Court
decision dated 28.4.2009 and modified by Full Court decisions
dated 15.1.2010 and 27.1.2011.
G
The recommendation for appointment of Mr. Brijesh Sethi,
DHJS to the post of District Judge under next below rule be made
to the Administrator, NCT of Delhi on receipt of notification of
appointment of Ms. Kiran Nath, DHJS as Principal Secretary
(Law, Justice & Legislative Affairs), Govt. of NCT of Delhi.
H
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 381
OF DELHI [DINESH MAHESHWARI, J.]

On receipt of notification of appointment as District Judges, A
their postings be made as per Annexure’X’.
(ii) The name of Mr. Girish Kathpalia, already Principal
Judge, Family Courts under next below rule be recommended for
appointment as Principal Judge, Family Courts on regular basis
with effect from the date Shri T.R. Naval relinquishes the charge B
of the post of Principal Judge, Family Courts, Delhi.
Against the consequential vacancies of Principal Judge,
Family Courts, the names of officers in the zone of consideration
were considered and on the criteria of ‘selection by merit’ as laid
down by the Full Court decision dated 28.4.2009 and modified by C
Full Court decisions dated 15.1.2010 and 27.1.2011, the names of
Ms. Poonam A. Bamba, Mr. A.S. Jayachandra, Mr. Deepak
Jagotra, Mr. Braj Raj Kedia and Mr. Yashwant Kumar, DHJS be
recommended for appointment to the post of Principal Judge,
Family Courts, Delhi for the districts mentioned against their names
on regular basis with effect from the date they take over:- D
Sl.No. Name of the Officer (Mr. Ms.) District

1. Poonam A. Bamba South, Saket
2. A.S. Jayachandra North-East,
Vishwas
Nagar E
3. Deepak Jagotra South-East,
Saket
4. Braj Raj Kedia Shahdara,
Karkardooma
5. Yashwant Kumar West, THC
F
Mr. S.C. Malik Mr. R.P.S. Teji, Mr. S.C. Rajan, Mr. Mahavir
Singhal, Mr. D.K. Malhotra, Mr. Sukhdev Singh, Mr. Rajneesh
Bhatnagar, Mr. Narender Kumar Sharma, Mr. J.P.S. Malik, Mr.
K.S. Mohi, Ms. Sujata Kohli, Mr. Rakesh Tiwari, Mr. Chandra
Gupta and Mr. Narottam Kaushal were not found fit for
appointment to the post of Principal Judge, Family Courts on the G
criteria of ‘selection by merit’ as laid down by the Full Court
decision dated 28.4.2009 and modified by Full Court decisions
dated 15.1.2010 and 27.1.2011.

H
382 SUPREME COURT REPORTS [2020] 9 S.C.R.

A The recommendations for appointment of Mr. Yashwant
Kumar DHJS to the post of Principal Judge, Family Court, West,
THC under next below rule be made to the Administrator, NCT
of Delhi on receipt of notification of appointment of Mr. Brijesh
Sethi, DHJS as District Judge under next below rule.”
B (underlining supplied)
5.6.2. It further appears that in the subsequent resolutions dated
16.04.2015, 19.09.2015 and 28.11.2016, various recommendations were
made by the Full Court for appointment to the post of District and Sessions
Judge and Principal Judge, Family Court. In these resolutions, the cases
C of all the persons falling in the zone of consideration (including the
appellant) were considered but, while making recommendations, some
of the incumbents, including the appellant, were not found fit for such
appointment on the basis of the criteria laid down in the aforesaid
resolutions dated 28.04.2009, 15.01.2010 and 27.01.2011. For avoiding
unnecessary repetition of similar aspects, all such resolutions need not
D be reproduced but, for ready reference, we may extract the relevant
part of the last of such resolution dated 28.11.2016 as under: –
“….Against the consequential vacancy on account of Mr. Girish
Kathpalia being on deputation, the names of officers in the zone
of consideration were considered and it was decided that on the
E criteria of ‘selection by merit’ as laid down by the Full Court
decision dated 28.4.009 and modified by Full Court decisions dated
15.1.2010 and 27.1.2011, the name of Mr. A.S.Jayachandra be
recommended for appointment to the post of District Judge under
next below rule with effect from the date he takes over.
F Mr. R.P.S. Teji, Mr.Mahavir Singhal and Ms. Sujata Kohli,
DHJS were not found fit for appointment to the post of District
Judge on the criteria of ‘selection by merit’ as laid down by the
Full Court decision dated 28.4.2009 and modified by Full Court
decisions dated 15.1.2010 and 27.1.2011.”
(underlining supplied)
G
THE FACTS RELATING TO THE APPELLANT AND
HER GRIEVANCE
6. Having taken note of the relevant rules and the relevant
resolutions, the basic facts relating to the appellant and the principal
aspects of her grievance could now be recounted, in brief, as follows:
H
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 383
OF DELHI [DINESH MAHESHWARI, J.]

6.1. The appellant, having successfully competed in the written A
examination and interview, secured third position in her batch for direct
selection to the cadre of DHJS and was duly appointed on 27.11.2002.
Later on, her position in the batch became second with resignation of
the candidate at second position. Thereafter, by virtue of the notification
dated 19.12.2005, the appellant was appointed as Additional District and
B
Sessions Judge (Permanent) w.e.f. 25.11.2004. It is not in dispute that
the service conditions of the appellant are governed by the said Rules of
1970.
6.2. It is also not in dispute that for the period between May 2011
to January 2014, the appellant was assigned cases under the Hindu
Marriage Act and other relatable matrimonial matters, during which C
period, she disposed of approximately 2589 cases, which included 478
amicable settlements.
6.3. The ACR gradings of the appellant for the relevant years had
been that she was awarded ‘B+’ (good) in the years 2010, 2011, 2012
and 2013; and she was awarded ‘A’ (very good) in the year 2014. D

6.4. It has been the case of the appellant that she became aware
of the impugned resolutions only when the judicial officers appointed in
the year 2002 were considered for promotion to the post of District and
Sessions Judge/Principal Judge, Family Court in the month of November
2014. The appellant would submit that immediately after noticing the E
prejudicial requirements of the impugned resolutions, she addressed a
representation dated 12.11.2014 to the Chief Justice and the companion
judges of the High Court of Delhi for reconsideration of the criteria laid
down in the impugned resolutions. It is the contention of the appellant,
that no reply was offered on her representation but, on 02.12.2014, she F
was granted Super Time Scale by the High Court by way of notification
No. 27/DHC/Gaz/ST/VI.D.10/2014.
6.5. On 13.01.2015, the appellant made another representation to
the Chief Justice of the High Court of Delhi apprising about her pending
representation and prayed that the proposed appointments may be kept G
on hold.
6.6. The grievance of the appellant had been that despite her
representations, several appointments were made to the post of Principal
Judge, Family Court from the candidates of her batch who were junior
in rank to herself as also from the candidates of later batches. Aggrieved
H
384 SUPREME COURT REPORTS [2020] 9 S.C.R.

A that her representations were not considered to review the criteria in
question as also by promotion of the incumbents junior to herself, appellant
preferred the writ petition before the High Court while seeking the
following reliefs:-
“a) quashing the notifications No. F.6/15/2012-JudL/FC/Supt1aw/
B 54-57 dated 15.1.2015 and No. F.6/2/2015JudL/Suptlaw/109-112
dated 22.1.2015.
b) quashing the full Court resolutions dated 28.4.2009, 15.1.2010
and 27.1.2011 adopted by the Hon’ble High Court of Delhi, with
respect to evolving the requirement of Grade A (if any), adopted
C on the said dates or at any other time for recommendation for
appointment/ promotion to the post of District Judge/Principal
Judge, Family Court.
c) Quashing the Rule 27 of Delhi Hiher Judicial Service Rules,
1970 and direct the framing of specific Rules for the promotion/
D appointment to the post of District and Sessions Judge/Principal
Judge, Family Court.
(ii) Direct the Respondent No. 1 to consider the petitioner for
recommendation for the appointment/promotion to the Post of
Principal Judge Family Court/ District and Sessions Judge as per
E her entitlement.
(iii) pass such other orders or directions as deemed fit and proper
in the facts and circumstances of the case.”
SUBMISSIONS BEFORE THE HIGH COURT
7. Seeking the reliefs aforesaid, the appellant submitted before
F
the High Court, inter alia, that prior to the year 2009, several candidates
having only ‘B+’ or even ‘B’ grade were promoted as District and Sessions
Judge and, when the batch of the year 2002 was being considered for
appointment to the post of District Judge in the year 2014, she came to
know of the requirements envisaged by the impugned resolutions. The
G appellant contended that failure in communication of the mandated
conditions had jeopardised her promotional prospects.
7.1. It was also contended that the impugned resolutions were
violative of Article 16 of the Constitution of India, for being opposed to
the reasonable expectations for selection and vertical promotion, in terms
H of the service conditions. The appellant further submitted that application
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 385
OF DELHI [DINESH MAHESHWARI, J.]

of the same criteria to judges as applicable to those in the Indian A
Administrative Service was against the very essence of the decision of
this Court in All India Judges Association v. Union of India: (1993)
4 SCC 288, where it was held that there cannot be any parity between
the judges and the administrative officers.
7.2. The appellant further referred to the decision of this Court in B
Dev Dutt v. Union of India: (2008) 8 SCC 725 and submitted that
granting better grading (‘A’) to a set of junior officers and giving lower
grading (‘B+’) to senior, tantamount to adverse ACR for the senior and
hence, the High Court establishment ought to have disclosed not merely
the concerned officer’s grading, but also those of her juniors, so that she
could have taken recourse of fair and effective redress, by pointing out C
her strengths, which might well have been overlooked by the appraising
authorities. The appellant also argued that though the ACR grades were
made known to the judicial officers, yet the pointwise grades were not
made known to them, which was required to be provided so as to assist
the concerned officer to grow and also to appeal against, if the same D
were found to be arbitrary.
8. While opposing the submissions of the appellant, the respondent
High Court establishment submitted, inter alia, that after the impugned
resolutions dated 28.04.2009 and 15.01.2010, the establishment received
various representations which were considered in the meeting held on E
06.07.2010 and, pursuant to the resolution adopted therein, a Committee
was constituted to deal with the issue concerning the criteria for
appointment to the post of District Judge. The respondent submitted that
in its report dated 08.10.2010, the Committee recommended for
maintaining the criteria of possessing “very good” grading in five years
immediately preceding the year of appointment but suggested that the F
same be implemented in a phased manner; and while accepting such
recommendations, the resolution dated 27.01.2011 came to adopted by
the Full Court (as noticed hereinbefore). It was submitted that the High
Court, being the best judge to assess as to which judicial officer was
suited to the work, was entitled to fix the criteria for the appointment in G
question; and it was denied that such criteria had adversely affected the
progression of Additional District Judges.
8.1. It was also contended by the respondent that the appellant
had failed to show any flaw or unreasonableness in the criteria as laid
down; that there was no requirement for publication of the promotional H
386 SUPREME COURT REPORTS [2020] 9 S.C.R.

A criteria, as it did not require obtaining of any additional qualification or
likewise; that every employee was expected to work to the best of his
ability and professional competence; and that raising a complaint against
the promotional criteria was meaningless and unwarranted. The
respondent also pointed out that for awarding ACR gradings, three judges
of the High Court were assigned the task of supervising the functioning
B
of the judicial officers and verification of the information drawn up qua
them; and the respective grades were made known only to the individual
concerned.
8.2. The respondent establishment also defended Rule 27 of the
Rules of 1970 with the submissions that guidelines and criteria need to
C be evolved having regard to the changing times; and as all the matters
and contingencies cannot be prescribed in the rules, discretion of the
competent authority is reserved but without vesting any arbitrary power.
8.3. It was also pointed out on behalf of the respondent
establishment that the appellant was granted super time scale w.e.f.
D 01.07.2013; she made the representation on 12.11.2014 for
reconsideration of the criteria in question; her representation was rejected
by the Full Court on 29.04.2015; and the decision was communicated to
her on 13.05.2015.
DECISION OF THE HIGH COURT: THE IMPUGNED
E ORDER
9. In its impugned judgment and order dated 21.08.2018, the High
Court referred to the decisions of this Court in Chandramouleshwar
Prasad v. Patna High Court: AIR 1970 SC 370 and State of Bihar
v. Bal Mukund Sah: 2000 (4) SCC 640, wherein Articles 233 and
F 235 of the Constitution of India were referred and primacy of the views
of the High Court in the appointment of District Judges was highlighted.
The High Court also analysed the aforementioned Full Court resolutions
and proceeded to examine the grievance of the appellant with respect to
her lack of knowledge or not being aware of the criteria to be fulfilled.
G 9.1. The High Court did not find any merit in the argument of the
petitioner-appellant that she was aggrieved due to non-communication
of the revised criteria while observing that before 2008-2009, there were
no criteria fixed for the purpose, which meant that the High Court
establishment had the discretion in the matter of selection and appointment
of the District Judges, either in terms of seniority or merit. The High
H
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 387
OF DELHI [DINESH MAHESHWARI, J.]

Court observed that such “no norms” position was sought to be rectified A
by structuring the discretion with emphasis on certain threshold gradings
and such administrative criteria cannot be termed as arbitrary. The
observations of the High Court, forming the core of its decision, could be
usefully reproduced as under: –
“22. The petitioner’s grievance with respect to her lack of B
knowledge or not being aware of the criteria to be fulfilled by
incumbent DHJS officers, in the opinion of this court, is not
justified. Before 2008-09 there was no criteria, which meant that
the High Court more or less had the absolute discretion to select
and appoint anyone, on the basis of seniority, or merit. This “no
norm” period was sought to be rectified by structuring the C
discretion, and insisting that the concerned officers ought to score
certain threshold gradings in their ACRs to be eligible for
consideration. Such administrative criteria, per se cannot be
characterized as arbitrary, given the prevailing “no norm” or “no
rule” period. Though not a matter of record, it is a fact that around D
that time, the existing one District court’s territorial jurisdiction
for the whole of Delhi was re-organized; nine District Courts were
created, with resultant distribution of jurisdiction. That has now
been further re-organized. The consequent need to fill nine posts
was felt. The committee, which reported to the Full Court on
14.12.2009, took into account the identity of pay scales of District E
Judges and equivalent grade All India Service (IAS) officers and
felt that since the former had to cross a threshold bar of five
“Very good” ACR gradings for five years, preceding the date of
consideration (for higher positions), a similar approach could be
adopted. As was highlighted by Chandramouleshwar Prasad F
“the High Court is the body which is intimately familiar with
the efficiency and quality of officers who are fit to be promoted
as District Judges. The High Court alone knows their merits
as also demerits.” Likewise, Bal Mukund Shah (supra)
emphasized the same theme:
G
“..rules made by the Governor in consultation with the High
Court in case of recruitment at grass-root level and the
recommendation of the High Court for appointments at the
apex level of the District Judiciary under Article 233 remain
the sole repository of power to effect such recruitments
H
388 SUPREME COURT REPORTS [2020] 9 S.C.R.

A and appointments. It is easy to visualise that if suitable
and competent candidates are not recruited at both these
levels, the out turn of the judicial product would not be of
that high level which is expected of judicial officers so as
to meet the expectations of suffering humanity representing
class of litigants who come for redressal of their legal
B
grievances at the hands of competent, impartial and
objective Judiciary.”
23. Having regard to these imperatives, the petitioner’s grievance
that no norm should have been evolved and implemented without
prior notice, is insubstantial. A judicial officer – like any other
C public employee or official joins the service, hoping to make a
difference, in terms of dealing with the workload, quality of output
(i.e. the judgments delivered) and also the cases assigned to her.
In a sense, service in the judicial department (though a public
service) is a mission, given the solemn nature of judging. If this is
D the assumption on which every judge, at every level is appointed
to the judicial system, the argument that if one is made aware that
a higher threshold of performance is expected, she or he would
work better (or have worked better) cannot be countenanced. All
judges – District Judges being no exception – are expected to
perform at their optimum levels, given the exploding dockets, which
E they have to handle. The primary role of anyone, when appointed
as a judge is to perform as a judge, to the best of her ability and
competence. An incumbent cannot be heard to say that her judicial
work was not up to the mark, because she was involved in some
other duties or more importantly, she was not aware that best
F performance would result in selection as District Judge. Every
functionary- including judges shoulder those extra duties to varying
degrees, at different points of time. Nor do those duties define the
role of any incumbent in a judicial service or system. If seen from
this perspective, the work performed by every judicial officer is
what is graded in the ACR. Therefore, to say that had any
G incumbent known that the highest or a better grading is essential
she or he would have performed better is no grievance. The
performance of every judge is expected to be her or his best, or
what she or he was capable of, for the relevant period. Therefore,
the nuancing of discretion (to appoint) from an absolute one, to
H one based on performance and merit, of DHJS officers, is neither
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 389
OF DELHI [DINESH MAHESHWARI, J.]

arbitrary nor unreasonable. One more reason to reject the A
petitioner’s argument in this regard is that the review which took
place through the Full Court resolution of 27 January 2011, was
due to representation of DHJS officers that introduction of the
five ACR norm was abrupt. Therefore, there was a general
awareness of this criteria, (put in place through the earlier
B
resolution of 15-01-2010) which led to some disquiet and
representation. The criteria which now stands challenged was
therefore evolved as a measure to relax the rigors of their
immediate application. It has been applied in the case of many
instances of appointment; some of those appointees have since
even retired; some were appointed as judges of this court. Even C
from that position, some appointees have retired. Therefore, it is
too late in the day to say that the criteria should be set aside on
the narrow ground that it was not made known. As members of a
judicial cadre, all officers were aware of its existence. This ground
therefore, is rejected.”
D
9.2. The grievance of the appellant about absence of any
information of the gradings of juniors was also found baseless. The High
Court referred to the law declared by this Court as regards the necessity
of communication of every ACR grading, particularly that in the case of
Dev Dutt (supra) and observed as under:-
E
“The petitioner’s grievance however, is that the better or higher
gradings given to her colleagues, particularly those junior to her
were not known and that she could not articulate her objections to
better her gradings, at the relevant time. This court is of the opinion
that the method of appraisal of judicial officers is such that gradings
given to each individual are treated as confidential. In such a system, F
it would not be permissible to publicize the gradings of all judicial
officers, so that each one has information or knowledge of not
only what she is graded, but also what others are graded. This
grievance is therefore held to be without substance.”
9.3. In the manner aforesaid, the High Court proceeded to reject G
the contentions of the appellant. However, before concluding, the High
Court observed that though the existing system of grading of the judicial
officers by the committees comprising of three High Court judges was
merited but there being no uniform set of rules or guidelines for the
appraisal committees to follow, it was in the fitness of things that to H
390 SUPREME COURT REPORTS [2020] 9 S.C.R.

A inject greater uniformity and objectivity as also some measure of
transparency and predictability, certain norms and performance indicators
be kept in view by the evaluation authorities. The High Court proceeded
to broadly lay down such norms and indicators in the penultimate
paragraph of its order and, ultimately, concluded on the writ petition in
the following: –
B
“29. In view of the above discussion, the court holds that the Full
Court resolutions of 28.4.2009 (modified on 15.01. 2010) and the
later resolution 27.01.2011, inasmuch as they prescribe that for
appointment to the post of District Judge, the concerned judicial
officer should have been graded A in the preceding five years, is
C not arbitrary; the challenge to Rule 27 too has to fail. The petitioners
grievance that she was arbitrarily denied knowledge of the ACR
gradings of other officers, is also without merit. This court hereby
requires that the directions in the preceding para of this judgment
with respect to formulation of criteria for uniform grading of judicial
D officers, be suitably incorporated in the form of guidelines, for
future implementation; the Registrar General shall take appropriate
action to place the papers before the Hon’ble Chief Justice, in
this regard. The writ petition is disposed of in the above terms
without order on costs.”
E RIVAL CONTENTIONS
10. The substance of the principal submissions made on behalf of
the appellant in challenge to the order so passed by the High Court has
been as follows:
10.1. The learned senior counsel for the appellant has argued
F that right to be considered for promotion is a fundamental right and the
exercise of this fundamental right requires that an employee is given a
free, fair and reasonable opportunity to be considered for such promotion.
The main plank of the submissions of learned counsel for the appellant
has been that only in the year 2009, the respondent establishment provided
G for the criteria on which a candidate was to be considered for promotion
as a District and Sessions Judge/Principal Judge, Family Court but
retrospective application of such criteria on the individuals like the
appellant negates their fundamental right to be duly considered for
promotion.

H
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 391
OF DELHI [DINESH MAHESHWARI, J.]

10.2. The learned senior counsel has emphatically argued that A
the said change in criteria was never communicated to the appellant nor
was notified so as to make the candidate likely to be affected by such
change aware about the requirements. According to the learned counsel,
the so-called “general awareness” and “deemed knowledge” does not
establish that all concerned were aware of the newly incorporated criteria
B
and the lack of communication is in violation of principle of natural justice.
10.3. The learned senior counsel would submit that when the
changes are made retrospectively and the right to promotion is denied,
the procedure cannot be said to be just and fair. The learned counsel has
argued that any change in the method of promotion ought to be prospective
in its application and ought to be specifically communicated to the C
candidate concerned. While relying on the decisions in State of U.P. v.
Mahesh Narain : (2013) 4 SCC 169 and Nirmal Chandra
Bhattachargee & Ors. v. Union of India & Ors.: 1991 Supp (2)
SCC 363, the learned counsel has contended that in the similar fact
situation, this Court has held that the change of service rules cannot be D
made to the prejudice of an employee who was in service prior to such
change. According to the learned counsel, creation of new criteria for
promotion amounts to a change in service rules and such an alteration
cannot be given retrospective effect if it operates to the prejudice of the
employee who was in service before such change and this cannot be
done even in exercise of the so-called residuary powers. E

10.4. The learned senior counsel would further submit that even
when changes of reasonable nature can be made in the matter of
promotion, the changes themselves should be made only in a reasonable
manner with due notice to the people likely to be affected, which having
not been done in the present case, the impugned operation of changed F
criteria cannot be countenanced. The learned counsel contended that
when the petitioner joined the service and even thereafter the existing
criteria for promotion to the post of District Judge as also for consideration
to be elevated to the High Court had consistently been of the candidate
having ‘B+’ grade and the appellant fulfilling such criteria, ought to have G
been promoted to the cadre of District Judge.
10.5. The learned senior counsel has further submitted that in the
case of Dev Dutt (supra), this Court has specifically held that
nomenclature is not important but the effect of an entry in the ACR
would determine if it is an adverse one or not. The learned counsel H
392 SUPREME COURT REPORTS [2020] 9 S.C.R.

A would submit that in the present case, though the appellant was given
her ACR gradings but she was unaware that after 2009, such gradings
would be operating adverse against her pursuant to the new criteria and
the effect of want of communication of change in service conditions and
rules has operated detrimental to her candidature for promotion.
B 10.6. The learned senior counsel has further submitted that even
as on date, no objective criteria exists for evaluating a judicial officer
and marking of the grading is only on the subjective satisfaction of the
authority concerned. The learned counsel would submit that while only
the overall ACR gradings are communicated but the point-wise grading
is not communicated, which hinders the ability of a judicial officer to
C appreciate any weak point or to effectively appeal against any unfair or
adverse grading. With reference to the last part of the impugned order,
learned counsel has contended that admittedly, no uniform system existed
for evaluating a judicial officer and, in the given scenario, any grading
based on unknown criteria could only be treated as arbitrary and the
D promotion criteria based thereon cannot be approved.
11. The counter-submissions on behalf of the contesting respondent
could also be briefly taken note of as follows:
11.1. The learned counsel for respondent No. 1 has submitted
that the posts of District and Sessions Judge and the Principal Judge,
E Family Court are selection posts to which, appointments are to be made
on the basis of merit-cum-seniority and therefore, the appellant cannot
claim appointment thereto as a matter of right. The learned counsel has
referred to the facts that prior to the year 2008, there was only one
sanctioned post of District Judge under the Delhi Higher Judicial Service
F Rules, 1970 but later on, the National Capital Territory of Delhi was
bifurcated into 9 Civil Districts with effect from 01.11.2008; and that
pursuant to such bifurcation, the strength of District and Sessions Judges
was increased to 11. The learned counsel has referred to the
aforementioned resolutions by the Full Court with the submissions that
prior to the year 2009, there was no criteria laid down by the High Court
G for selecting candidates for appointment to the post of District Judge
but, given the requirement of laying down standards for such selection,
the said resolutions were adopted and implemented while keeping in
view Rule 27 of the Rules of 1970 and the norms prescribed by the
Government of India under OM dated 15.02.2008 for the posts having
H the pay scale equivalent to that of a District Judge.
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 393
OF DELHI [DINESH MAHESHWARI, J.]

11.2. With reference to Article 233(1) of the Constitution of India, A
the learned counsel would submit that the power to appoint District Judges
lies strictly with the High Court and it was in exercise of such powers
that the High Court laid down the criteria in question for selection of the
most meritorious among the eligible candidates. While reiterating the
submissions that appointment to the posts in question is purely on merit-
B
cum–security basis, the learned counsel has argued, with reference to
several of the decisions, including those in Central Council for Research
in Ayurveda & Siddha and Anr. v. Dr. K. Santhakumari: (2001) 5
SCC 60 and Haryana State Electronics Development Corporation
Limited and Ors. v. Seema Sharma and Ors.: (2009) 7 SCC 311,
that in appointments on the basis of merit-cum-seniority, the merit acquires C
primacy and seniority becomes relevant only when all the aspects of
merit qualifications are equal. The learned counsel has contended that
the appellant was also duly considered for such appointment but only
those candidates were appointed who were more meritorious than her,
like the respondent Nos. 3 to 10.
D
11.3. As regards the question of knowledge of the appellant
regarding the criteria in question, the learned counsel has argued that
the criteria adopted by the High Court had been the same as prescribed
by the Government of India in OM dated 18.02.2008 and, by virtue of
Rule 27 of the Rules of 1970, the appellant shall be deemed to be having
knowledge of the same; and even her contemporaneous colleagues had E
conducted themselves in accordance with the requirements of such
criteria. The learned counsel has also referred to the representations
made by the Associations of the officers and has contended that it cannot
be suggested by the appellant that the concerned judicial officers were
not having knowledge of adoption of the criteria mentioned in the impugned F
resolutions.
11.4. The learned counsel has distinguished the decision of this
Court in the case of Mahesh Narain (supra) with the submissions that
therein, this Court has held that an employee cannot be precluded from
enjoying the benefit of a provision for promotion which was amended G
after he became eligible for being promoted. The learned counsel would
submit that in the present case, the High Court did not change the eligibility
criteria for appointment of District Judge and by the impugned resolutions,
merely evolved a selection criteria for evaluation of eligible candidates;
and in any case, the appellant entered the zone of consideration only in
H
394 SUPREME COURT REPORTS [2020] 9 S.C.R.

A the year 2014-15 whereas, the said criteria in question had been
implemented for appointments made from the year 2012 onwards.
Similarly, the learned counsel has distinguished the decision in Nirmal
Chandra (supra) with the submissions that the fact situation therein
was entirely different where due to restructuring, Class D employees
were placed in Class C without change of their status and they were
B
sought to be denied the benefit of promotion to a post in Class C for
which, this Court held that such promotion could not be denied to the
persons who became eligible for promotion prior to the restructuring;
and the impact of restructuring could not prejudice the employees.
11.5. As regards the decision in Dev Dutt (supra), the learned
C counsel has contended that the reliance thereupon was entirely misplaced
because the appellant was admittedly informed of all her ACRs; and she
rather accepted most of her ACRs for the period 2010 to 2014 without
any protest and did not pursue any case for upgradation of the same;
and it is evident that she was never dissatisfied with her grading in the
D relevant ACRs as ‘B+’.
11.6. Put in a nutshell, the submissions on behalf of the contesting
respondent have been that the appellant is not entitled to any relief
because all the candidates recommended for promotion had better ACR
gradings than the appellant.
E 12. We have bestowed anxious consideration to the rival
submissions and have perused the material placed on record with
reference to the law applicable.
13. In view of the submissions made, two points mainly arise for
determination in this case: (1) As to whether the appellant has been
F denied fair and reasonable consideration of her case for promotion to
the posts of District and Sessions Judge/ Principal Judge, Family Court
by operation of the criteria laid down in the impugned resolutions; and
(2) As to whether the appellant suffered any prejudice in the matter of
ACR gradings?
G RE: POINT NUMBER (1)
14. As noticed, the principal grievance of the appellant is that she
has been denied fair and reasonable consideration of her case for
promotion. It has been contended on behalf of the appellant that the
respondent High Court evolved new criteria for promotion to the posts
H of District and Sessions Judge and Principal Judge, Family Court by
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 395
OF DELHI [DINESH MAHESHWARI, J.]

way of the impugned resolutions but the same was not notified and she A
was not made aware of the new criteria that required ‘A’ gradings in the
ACRs of five years preceding the base year of consideration. It has also
been contended on behalf of the appellant that the respondent High Court
had acted illegally and unfairly in putting the new criteria in operation
with retrospective effect that has caused her serious prejudice. An
B
ancillary aspect has also been put into contention that the High Court
had not been right in fixing the criteria for promotion of the judicial officers
on the basis of the norms applicable to the executive officers while
disregarding the law that the members of other services cannot be placed
at par with the members of the judiciary.
15. In order to examine as to whether the appellant has been able C
to make out a valid case of legal grievance, a brief reference to the
basic legal provisions and principles having application to the case at
hand shall be apposite.
15.1. It does not require any elaborate discussion to say that the
right to be considered for promotion is a fundamental right of equality of D
opportunity in the matter of employment. The wide variety of case-law
on the subject need not be recounted but, for ready reference, it appears
appropriate to refer to the decision in Ajit Singh and Ors. (II) v. State
of Punjab and Ors.: (1999) 7 SCC 209 wherein a Constitution Bench
of this Court reaffirmed the basics of such fundamental right and also E
pointed out the silhouettes of the criteria relating to promotional avenues
in the following: –
“22. Article 14 and Article 16(1) are closely connected. They
deal with individual rights of the person. Article 14 demands that
the “State shall not deny to any person equality before the law or F
the equal protection of the laws”. Article 16(1) issues a positive
command that “there shall be equality of opportunity for all citizens
in the matters relating to employment or appointment to any office
under the State”. It has been held repeatedly by this Court that
Sub-clause (1) of Article 16 is a facet of Article 14 and that -it
takes its roots from Article 14. The said Sub-clause particularizes G
the generality in Article 14 and identifies, in a constitutional sense
“equality of opportunity” in matters of employment and
appointment to any office under the State. The word ‘employment’
being wider, there is no dispute that it takes within its fold, the
aspect of promotions to posts above the stage of initial level of H
396 SUPREME COURT REPORTS [2020] 9 S.C.R.

A recruitment. Article 16(1) provides to every employee otherwise
eligible for promotion or who comes within the zone of
consideration, a fundamental right to be “considered” for
promotion. Equal opportunity here means the right to be
“considered” for promotion. If a person satisfies the eligibility and
zone criteria but is not considered for promotion, then there will
B
be a clear infraction of his fundamental right to be “considered”
for promotion, which is his personal right.
23. Where promotional avenues are available, seniority becomes
closely interlinked with promotion provided such a promotion is
made after complying with the principle of equal opportunity stated
C in Article 16(1). For example, if the promotion is by rule of seniority-
cum-suitability’, the eligible seniors at the basic level as per seniority
fixed at that level and who are within the zone of consideration
must be first considered for promotion and be promoted if found
suitable. In the promoted category they would have to count their
D seniority from the date of such promotion because they get
promotion through a process of equal opportunity. Similarly, if the
promotion from the basic level is by selection or merit or any rule
involving consideration of merit, the senior who is eligible at the
basic level has to be considered and if found meritorious in
comparison with others, he will have to be promoted first. If he is
E not found so meritorious, the next in order of seniority is to be
considered and if found eligible and more meritorious than the
first person in the seniority list, he should be promoted. In either
case, the person who is first promoted will normally count his
seniority from the date of such promotion. (There are minor
F modifications in various services in the matter of counting of
seniority of such promotees but in all cases the senior most person
at the basic level is to be considered first and then the others in
the line of seniority). That is how right to be considered for
promotion and the ‘seniority’ attached to such promotion become
important facets of the fundamental right guaranteed in Article
G 16(1).”
(underlining supplied)
15.2. The criteria in question, for promotion to the post of District
and Sessions Judge and equivalent, had been evolved and operated by
H the High Court in the purported exercise of its powers under the Rules
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 397
OF DELHI [DINESH MAHESHWARI, J.]

of 1970. The fundamentals of law also remain settled that the power of A
appointment, posting and promotion of District Judges vests with the
Governor of the State, but this power has to be exercised in consultation
with the High Court concerned; and this Court has laid down in no
uncertain terms that in such matters, the primacy is to be given to the
views of High Court. Again, instead multiplying the authorities, suffice
B
would be to refer to the decision in the case of Chandramouleshwar
Prasad (supra) wherein a Constitution Bench of this Court exposited
the principles underlying Article 233 of the Constitution of India7 and
observed, inter alia, as under: –
“….No doubt the appointment of a person to be a District Judge
rests with the Governor but he cannot make the appointment on C
his own initiative and must do so in consultation with the High
Court. The underlying idea of the Article is that the Governor
should make up his mind after there has been a deliberation with
the High Court. The High Court is the body which is intimately
familiar with the efficiency and quality of officers who are fit to D
be promoted as District Judges. The High Court alone knows
their merits as also demerits. This does not mean that the Governor
must accept whatever advice is given by the High Court but the
Article does require that the Governor should obtain from the
High Court its views on the merits or demerits of persons among
whom the choice of promotion is to be limited. If the High Court E
recommends A while the Governor is of opinion that B’s claim is
superior to A’s it is incumbent on the Governor to consult the High
Court with regard to its proposal to appoint B and not A. If the
Governor is to appoint B without getting the views of the High
Court about B’s claim vis-a-vis A’s Lo promotion, B’s appointment F
cannot be said to be in compliance with Article 233 of the
Constitution. …..
…. So far as promotion of officers to the cadre of District Judges
is concerned the High Court is best fitted to adjudge the claims
and merits of persons to be considered for promotion. The G
Governor cannot discharge his function under Article 233 if he
7
Article 233 (1) reads as under:-
“233. Appointment of district judges.—(1) Appointments of persons to be,
and the posting and promotion of, district judges in any State shall be made by the
Governor of the State in consultation with the High Court exercising jurisdiction in
relation to such State.” H
398 SUPREME COURT REPORTS [2020] 9 S.C.R.

A makes an appointment of a person without ascertaining the High
Court’s views in regard thereto…………”
15.3. While keeping the aforesaid principles in view, we may now
examine the scheme of the Rules of 1970. As noticed, two channels of
recruitment to the posts in the cadre of District Judge have been provided:
B one by promotion from amongst the Civil Judges (Senior Division) and
another by direct recruitment from the eligible persons. As regards
promotion, the bifurcation is provided in the manner that 65% are to be
recruited by way of promotion on the basis of merit–cum–seniority and
10% by promotion strictly on the basis of merit through limited competitive
examination (vide Rule 7 and 7A). Even in the matters relating to pay
C scales, it is noticed that granting of Selection Grade and Super Time
Scale is on the assessment of merit–cum–seniority (vide Rule 18). The
matter in issue in the present appeal relates to promotion to the posts of
District and Sessions Judge or Principal Judge, Family Court within the
cadre of DHJS. Apparently, no separate provision is found in the Rules
D of 1970 as regards such upward progression within the cadre and
obviously, for such a matter, the residuary provision as contained in Rule
27 comes into operation by virtue of which, the directions or orders for
the time being in force and applicable to the officers of comparable
status in IAS would apply.
E 15.3.1. At this juncture, we may observe that the appellant had
attempted to question the said Rule 27 of the Rules of 1970 as being
ultra vires, particularly with reference to the decision of this Court in
the case of All India Judges Association (supra). In our view, the High
Court has rightly rejected such a challenge to Rule 27 because this
residuary clause in the Rules of 1970 does not appear offending the law
F declared by this Court in any manner. This residuary clause is not of
equating the judicial officers with the executive officers but only provides
that in regard to the matters for which no provision or insufficient provision
has been made in the Rules of 1970, the relevant rules, directions or
orders as applicable to IAS shall regulate the conditions of service of the
G officers of DHJS. A perusal of the other provisions in the Rules of 1970
makes it clear that reference to the service conditions of the members
of IAS is not an anathema to these rules and, on the contrary, wherever
necessary, the applicable rules, orders or directions concerning the
members of IAS do govern the service conditions of the judicial officers
too. For example, in the matter of pay fixation of a promoted officer, it is
H
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 399
OF DELHI [DINESH MAHESHWARI, J.]

provided in Rule 20 that such pay shall be fixed in the referred time A
scale in accordance with the financial rules, regulations et cetera, as
applicable from time to time to the members of IAS; and as per Rule 26,
the direct recruits are required to produce before appointment, a certificate
of physical fitness in accordance with the standards prescribed for IAS.
Such provisions, essentially meant for proper regulation of the service,
B
by themselves, do not put the members of DHJS at par with the members
of IAS for all purposes. Moreover, as noticed, what the High Court
establishment has provided by way of the impugned resolutions are the
norms for promotion while taking cue from the norms applicable to the
members of IAS in the equivalent pay scale. Providing for such norms
does not in any manner stand at conflict with the principles laid down in C
the case of All India Judges Association(supra). The challenge to the
said Rule 27 has rightly been rejected by the High Court.
15.4. It would now be appropriate to take note of the principles
governing the exercise of promotion, particularly the norms and criteria
for promotion. D
15.4.1. As noticed, in the case of Ajit Singh (supra), even while
holding that the right to be considered for promotion is a fundamental
right, the Constitution Bench pointed out the subtle distinction in the
operation of the norms of seniority on one hand and any rule requiring
consideration of merit on the other while observing, inter alia, that ‘if E
the promotion from the basic level is by selection or merit or any
rule involving consideration of merit, the senior who is eligible at
the basic level has to be considered and if found meritorious in
comparison with others, he will have to be promoted first. If he is
not found so meritorious, the next in order of seniority is to be
considered and if found eligible and more meritorious than the first F
person in the seniority list, he should be promoted.’
15.4.2. In Central Council for Research (supra), this Court
further elaborated on the relevant principles, particularly with reference
to the role of merit in relation to the higher posts while observing, inter
alia, as under:- G
“6. The principle of merit-cum-seniority is an approved method
of selection and this Court in Sant Ram Sharma v. State of
Rajasthan: AIR 1967 SC 1910 held that promotion to “selection
grade posts” is not automatic on the basis of ranking in the
H
400 SUPREME COURT REPORTS [2020] 9 S.C.R.

A gradation list and the promotion is primarily based on merit and
not on seniority alone. At p. 1914 of the judgment, it is stated as
under: (AIR para 6)
“The circumstance that these posts are classed as ‘selection
grade posts’ itself suggests that promotion to these posts is not
B automatic being made only on the basis of ranking in the
gradation list but the question of merit enters in promotion to
selection posts. In our opinion, the respondents are right in
their contention that the ranking or position in the gradation list
does not confer any right on the petitioner to be promoted to
selection post and that it is a well-established rule that promotion
C to selection grades or selection posts is to be based primarily
on merit and not on seniority alone. The principle is that when
the claims of officers to selection posts is under consideration,
seniority should not be regarded except where the merit of the
officers is judged to be equal and no other criterion is, therefore,
D available.”
7. The Court further held that such mode of selection is not violative
of Article 14 of the Constitution.
8. In State of Orissa v. Durga Charan Das: AIR 1966 SC 1547
the Constitution Bench of this Court held that the promotion to a
E selection post is not a matter of right which can be claimed merely
by seniority.
9. In Union of India v. Mohan Lal Capoor: (1973)2 SCC 8363
(SCC at p. 856, para 37) it was held as under:

F “[F]or inclusion in the list, merit and suitability in all respects should
be the governing consideration and that seniority should play only
a secondary role. It is only when merit and suitability are roughly
equal that seniority will be a determining factor, or, if it is not fairly
possible to make an assessment inter se of the merit and suitability
of two eligible candidates and come to a firm conclusion, seniority
G would tilt the scale.”
10. In B.V. Sivaiah v. K. Addanki Babu: (1998) 6 SCC 720
this Court held that the principle of “merit-cum-seniority” lays
greater emphasis on merit and ability and seniority plays a less
significant role. Seniority is to be given weight only when merit
H and ability are approximately equal.”
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 401
OF DELHI [DINESH MAHESHWARI, J.]

15.4.3. In Haryana State Electronics (supra), this Court again A
pointed out the root distinction in the principles of merit-cum-seniority
and seniority-cum-merit in the following:-
“7. The Court is of the opinion that the principle of merit-cum-
seniority and that of seniority-cum-merit are two totally different
principles. B
8. The principle of merit-cum-seniority puts greater emphasis on
merit and ability and where promotion is governed by this principle
seniority plays a less significant role. However, seniority is to be
given weightage when merit and ability more or less are equal
among the candidates who are to be promoted. C
9. On the other hand, insofar as the principle of seniority-cum-
merit is concerned it gives greater importance to seniority and
promotion to a senior person cannot be denied unless the person
concerned is found totally unfit on merit to discharge the duties of
the higher post. The totality of the service of the employee has to D
be considered for promotion on the basis of seniority-cum-
merit….”
16. Keeping the principles aforesaid in view, when we revert to
the scheme of the Rules of 1970, the striking feature is that even at the
entry level, the promotions are to be made either on merit-cum-seniority E
basis8 or on merit basis9. Further, grant of Selection Grade and Super
Time Scale is also on assessment of merit–cum–seniority10. In the given
scheme of the Rules of 1970, it is difficult to countenance any suggestion
that in DHJS, merit could be forsaken at any level or only seniority be
given primacy in the matter relating to upward progression to the higher
posts of District and Sessions Judge or Principal Judge, Family Court. F
Rather, looking to the nature of posts, in every higher progression, merit
would play a major role and would, perforce, acquire primacy.
17. We may also recapitulate a few basic features relating to the
impugned resolutions. As per the facts available on record, prior to the
year 2008, there was only one sanctioned post of District Judge under G
the Rules of 1970. Later on, the National Capital Territory of Delhi came
to be bifurcated into 9 Civil Districts and the bifurcation came into effect
8
As per clause (a) of Rule 7(1) and Rule 7A of the Rules of 1970
9
As per clause (b) of Rule 7(1) of the Rules of 1970
10
As per Rule 18 of the Rules of 1970 H
402 SUPREME COURT REPORTS [2020] 9 S.C.R.

A from 01.11.2008 by virtue of the notification dated 22.10.2008; and in
view of such bifurcation, the strength of District and Sessions Judges
was increased to 11. This reorganisation and increase of strength of the
cadre of DHJS, obviously, led to the requirement of providing the norms
and criteria for promotion to the posts of District and Sessions Judges
and equivalent because no such norms and criteria were in existence.
B
In keeping with such requirements, the High Court, in its Full Court
meeting dated 28.04.2009, adopted a resolution to the effect that, for the
purpose of being selected/promoted as District and Sessions Judge, a
candidate of DHJS ought to fulfil the criteria of possessing at least two
‘A’ (very good) and three ‘B+’ (good) ACR gradings for the preceding
C five years from the date of consideration for such appointment.
Thereafter, in its Full Court meeting dated 15.01.2010, the High Court
proceeded to modify the aforesaid criteria to the effect that for being
promoted as District and Sessions Judge, a candidate of DHJS ought to
possess the minimum ‘A’ (very good) grading in ACRs of each of the
five years under consideration. It had been the case of the respondent
D
High Court that such criteria were adopted as being equivalent to the
revised promotion criteria in the Indian Administrative Services by virtue
of the residuary provision contained in Rule 27 ibid. As against the
aforesaid resolution dated 15.01.2010, the High Court received certain
representations, including those from the Associations of the Officers
E and, upon consideration of these representations, a committee comprising
of four Hon’ble Judges, in its report dated 08.10.2010, recommended
for implementation of the revised criteria in a phased manner; and such
recommendations of the committee were accepted by the Full Court of
the High Court on 27.01.2011. In this manner aforesaid, the respondent
High Court took the decision to implement the revised criteria envisaged
F
by the resolution dated 15.01.2010 in a phased manner; and the
requirements came to be provided that for appointment to the post of
District and Sessions Judge, a candidate should, in the five years preceding
the base year, carry the ACR gradings as follows:
(i) for the year 2009, at least two ‘A’ (very good) and the remaining
G three ‘B+’ (good);
(ii) for the year 2010, at least three ‘A’ (very good) and the
remaining two ‘B+’ (good);
(iii) for the year 2011, at least four ‘A’ (very good) and the remaining
H one ‘B+’ (good); and
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 403
OF DELHI [DINESH MAHESHWARI, J.]

(iv) for the year 2012 and onwards, a minimum of five ‘A’ (very A
good).
Further, the Administrative and General Supervision Committee
of the High Court, in its meeting dated 13.09.2013, resolved, inter alia,
that the post of Principal Judge, Family Court being equivalent to that of
District and Sessions Judge, the same criteria be also adopted for B
appointment of Principal Judge, Family Court.
17.1. In an overall comprehension of the matter, we have no
hesitation in endorsing the views of the High Court in the impugned
order that the no-norms position for upward progression in DHJS, as
existing prior to the year 2009, could not have been continued with C
reorganisation of the District Courts and certain norms, commensurate
with the posts in question, were required to be provided; and were
accordingly provided with reference to the prescriptions for the officers
of IAS in the equivalent pay scales. It has been asserted on behalf of the
contesting respondent, and remains indisputable, that for the officers of
such equivalent pay scales, the requirement had been of five “very good” D
ACR gradings (i.e., ‘A’ grading) for five years preceding the date of
consideration for higher positions. The High Court establishment had
further been reasonable and balanced in its approach when such
threshold requirement of five “very good” ACR gradings was not foisted
on the officers immediately and, in keeping with the position obtainable E
in the past as also keeping in view the merit requirements, took a
considered decision after examining the representations that such criteria
be implemented gradually and started with the norms of two “very good”
with three “good” ACR gradings for the year 2009 and systematically
enhanced the norms to three “very good” with two “good” ACR gradings
for the year 2010; four “very good” with one “good” ACR gradings for F
the year 2011; and eventually provided for five “very good” ACR gradings
for the year 2012 and onwards.
17.2. In the given fact situation and the methodology of gradual
implementation adopted by the High Court, the suggestion on the part of
the appellant that there had been any so-called retrospective operation G
of revised criteria remains totally bereft of substance and could only be
rejected.
18. Turning now to the main plank of the submissions on behalf of
the appellant that she was not made aware of such so-called revised
H
404 SUPREME COURT REPORTS [2020] 9 S.C.R.

A criteria, in our view, such submissions carry several shortcomings of
their own. As noticed, the appellant joined DHJS in the year 2002 and
eventually stood second in rank in her batch. She was confirmed with
effect from 25.11.2004. She was, and would always be presumed to be,
aware of all the requirements of the Rules of 1970. Moreover, the
appellant, a member of DHJS, cannot suggest that she remained oblivious
B
of the developments about creation of 9 Civil Districts in the year 2008
and increase in the strength of District and Sessions Judges to 11. The
appellant was also aware of the fact that no specific provision was
available in the Rules of 1970 as regards upward progression in DHJS,
particularly to the posts of District and Sessions Judge and Principal
C Judge, Family Court and hence, by virtue of Rule 27 of the Rules of
1970, she would be deemed to be having constructive knowledge that
the criteria to be adopted for such upward progression would be that as
applicable for the equivalent posts in IAS. The Office Memorandum
dated 18.02.2008 issued by the Government of India in its Ministry of
Personnel, Public grievances and Pensions (Department of Personnel
D
and Training) has been placed on record by the contesting respondent
and it is not the case of the appellant that she was not aware of this
Office Memorandum issued by the Government of India11. When it had
consistently been provided that for promotion to the scale of Rs. 18,400
– 22,400 and above, the prescribed benchmark of “very good” ought to
E be met in all ACRs of five years under consideration; and when the
higher posts of District and Sessions Judge and Principal Judge, Family
Court do carry much higher scales of pay (vide Rule 18 ibid.), neither
the High Court could be faulted in applying the same benchmark for
such higher posts in DHJS nor the appellant could feign ignorance about
the same.
F
18.1. Apart from the above, it is noteworthy that in the Rules of
1970, even the entry level promotion to the post in DHJS is on the basis
of merit-cum-seniority or merit. Viewed in the light of such requirements,
it goes without saying that any upward progression in DHJS could only
be on the higher requirements of merit and in any case, such requirements
G cannot be lesser than the requirements at entry level. In this view of the
11
In the said OM, it had, inter alia, been provided that, –
“…in order to ensure greater selectivity at higher level of administration, the DPC
may ensure that for the promotion to the scale of Rs.18,400–22,400 and above, the
prescribed benchmark of ‘Very Good’ is invariably met in all ACR’s of five years
H under consideration…”
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 405
OF DELHI [DINESH MAHESHWARI, J.]

matter too, the appellant was conscious of the fact that for upward A
movement in DHJS, merit would acquire primacy; and that seniority
alone was not going to be decisive for promotion to the higher posts of
District and Sessions Judge and the Principal Judge, Family Court.
Although there is no requirement in law that criteria for promotion based
on ACR alone be also notified but, in any case, in the scheme of the
B
rules and the requirements of the posts in question, the appellant cannot
contend that she was not aware of the position that comparative merit
of the incumbents shall be a crucial factor for any upward progression in
the cadre.
18.2. It is also noteworthy that when from the year 2009, such
exercise was undertaken by the High Court establishment to lay down C
proper norms and criteria for upward progression in DHJS, both the
Associations of the judicial officers namely, Delhi Higher Judicial Service
Officers Association as also Delhi Judicial Service Officers Association,
made representations after the Full Court meeting dated 15.01.2010 and
gradual implementation of the criteria was provided after due D
consideration of the said representations. It is not the case of the appellant
that she is not a member of the Association of DHJS officers.
18.3. Viewed from any angle, it is but apparent that the appellant
was aware of, and shall always be deemed to be conscious of, the
requirement that any promotion to the post of District and Sessions Judge E
or Principal Judge, Family Court would only be on the basis of such
norms where merit would be a crucial factor and seniority alone would
not suffice. It follows as a necessary corollary that the appellant was
also conscious of the position that while making any such promotion, the
assessment would be based on the competitive merit of the candidates
in the zone of consideration; and if any candidate in such zone of F
consideration was possessed of better merit than herself, he would be
preferred for promotion.
19. Coming now to the operation of the criteria in question, we
are clearly of the view that providing for the norms for assessment of
the comparative merits of the candidates in the zone of consideration, G
was squarely within the domain of the High Court; and infringement of
the right of consideration could only be suggested if different yardsticks
or different norms were provided and applied qua the similarly
circumstanced persons. However, this is not the case of the appellant
nor it could be so because the High Court has apparently taken up all the H
406 SUPREME COURT REPORTS [2020] 9 S.C.R.

A persons in the zone of consideration at the relevant time and has accorded
promotion on the basis of comparative merit of the candidates. The
appellant, when could not stand in such competitive merit position, cannot
raise a complaint about infringement of any of her legal rights. It is not
the case of the appellant that anybody junior to her and standing equal in
merit or anybody not fulfilling the criteria laid down by the High Court
B
has been promoted.
19.1. Though, in all fairness, the appellant has not attempted to
question the reasonableness of the criteria as provided by the High Court
but, having regard to the issues raised, we feel inclined to observe that
looking to the duties and responsibilities attached with the higher posts
C of District and Sessions Judge and Principal Judge, Family Court, the
High Court cannot be faulted in providing for a reasonable method of
assessment of the requisite merit in the manner that a candidate in the
zone of consideration ought to be possessing minimum five “very good”
ACRs in the preceding five years from the base year. As already noticed,
D in fact, the criteria so adopted had been the identical one as provided for
the members of IAS in the equivalent pay scales.
20. Therefore, the contentions urged on behalf of the appellant
about non-communication of the criteria for promotion turn out to be
totally meritless and the grievance as suggested on behalf of the appellant
E cannot be considered to be a legal grievance.
21. From the material placed on record, it is also apparent that the
case of the appellant was duly considered for such promotion along with
the other incumbents but herself and a few others were not promoted
for not fulfilling the criteria as provided in the impugned resolutions. The
F fact that the case of the appellant was also duly considered is amply
borne out from the minutes of the Full Court meetings, including those of
the meeting dated 09.01.2015 , 16.04.2015, 19.09.2015 and 28.11.2016
(the relevant parts of two such resolutions dated 09.01.2015 and
28.11.2016 have been extracted in paragraphs 5.6.1 and 5.6.2
hereinabove). Therefore, the appellant cannot raise a grievance that the
G respondent establishment has not accorded due consideration to her case
for promotion. As noticed, case of the appellant was duly considered but
she could not be promoted for not possessing the requisite gradings in
her ACRs of the relevant period.
22. Having regard to the facts and circumstances of the present
H case, the decisions in the cases of Mahesh Narain and Nirmal
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 407
OF DELHI [DINESH MAHESHWARI, J.]

Chandra Bhattacharjeee (supra) are of no avail to the appellant because A
the fact situation of the said cases were entirely different and this Court
held that an employee cannot be denied the benefit of a provision for
promotion which was amended after he became eligible for being
promoted. In the present case, the High Court did not change the eligibility
criteria for appointment to the post of District and Session Judge or
B
Principal Judge, Family Court but merely evolved a selection criteria for
evaluation of eligible candidates. There had not been any denial of a
pre-existing right of the appellant, who entered the zone of consideration
only in the year 2014-15 whereas, the criteria in question was implemented
for the appointments made from the year 2012.
23. For what has been discussed hereinabove, we are clearly of C
the view that the appellant has not been denied fair and reasonable
consideration of her case for promotion to the posts of District and
Sessions Judge/ Principal Judge, Family Court by operation of the criteria
laid down in the impugned resolutions. Point number (1) is, accordingly,
answered against the appellant. D
RE: POINT NUMBER (2)
24. It has been argued on behalf of the appellant that though the
questioned criteria came to be provided by way of the impugned
resolutions and the same were sought to be implemented in a phased
manner, but there existed no objective basis for evaluating a candidate E
before assigning any particular grading in ACR; and this fact is highlighted
in the impugned order itself where the Court has recognised the fact
that there was no uniform set of rules and guidelines for the appraisal
committees to follow and proceeded to lay down certain norms and
guidelines in that regard. Therefore, and while seeking strength from F
such observations in the impugned order, it has been contended that
deep lacuna in the system left a wide vacuum in implementation of the
new benchmark provided by the impugned resolutions without any means
of representation for the eligible candidates like the appellant, who were
otherwise suitable and eligible for being considered for promotion. The
decision of this Court in the case of Dev Dutt (supra) has also been G
referred on behalf of the appellant. As noticed, it had also been the
submission on behalf of the appellant that she was prejudiced for not
being provided with the point-wise gradation and also for having not
been provided with the gradings of the other officers who were junior to
herself and who were given the promotion. In our view, the submissions H
408 SUPREME COURT REPORTS [2020] 9 S.C.R.

A remain totally meritless and it cannot be said that the contesting respondent
has caused any prejudice to the appellant in the matter of ACR gradings.
25. The fundamental requirement in law for communication of
every entry in ACR to the employee concerned, as settled in the case of
Dev Dutt (supra) and reaffirmed in the case of Sukhdev Singh v. Union
B of India: (2013) 9 SCC 566, is neither of any doubt nor of any dispute.
The law declared in the case of Dev Dutt (supra), as referred on behalf
of the appellant, could be usefully noticed as under: –
“9. In the present case the benchmark (i.e. the essential
requirement) laid down by the authorities for promotion to the
C post of Superintending Engineer was that the candidate should
have “very good” entry for the last five years. Thus in this situation
the “good” entry in fact is an adverse entry because it eliminates
the candidate from being considered for promotion. Thus,
nomenclature is not relevant, it is the effect which the entry is
having which determines whether it is an adverse entry or not. It
D is thus the rigours of the entry which is important, not the
phraseology. The grant of a “good” entry is of no satisfaction to
the incumbent if it in fact makes him ineligible for promotion or
has an adverse effect on his chances.
*** *** ***
E
17. In our opinion, every entry in the ACR of a public servant
must be communicated to him within a reasonable period, whether
it is a poor, fair, average, good or very good entry. This is because
non-communication of such an entry may adversely affect the
employee in two ways: (1) had the entry been communicated to
F him he would know about the assessment of his work and conduct
by his superiors, which would enable him to improve his work in
future; (2) he would have an opportunity of making a representation
against the entry if he feels it is unjustified, and pray for its
upgradation. Hence, non-communication of an entry is arbitrary,
G and it has been held by the Constitution Bench decision of this
Court in Maneka Gandhi v. Union of India: (1978) 1 SCC
248 that arbitrariness violates Article 14 of the Constitution.
18. Thus, it is not only when there is a benchmark but in all cases
that an entry (whether it is poor, fair, average, good or very good)
must be communicated to a public servant, otherwise there is
H
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 409
OF DELHI [DINESH MAHESHWARI, J.]

violation of the principle of fairness, which is the soul of natural A
justice. Even an outstanding entry should be communicated since
that would boost the morale of the employee and make him work
harder.
*** *** ***
41. In our opinion, non-communication of entries in the annual B
confidential report of a public servant, whether he is in civil, judicial,
police or any other service (other than the military), certainly has
civil consequences because it may affect his chances for promotion
or get other benefits (as already discussed above). Hence, such
non-communication would be arbitrary, and as such violative of C
Article 14 of the Constitution.”
25.1. In our view, reference to the aforesaid principles remains
totally misplaced in the fact situation of the present case. It is not in
dispute that the appellant was, in fact, informed of every grading made
in her ACR. She was awarded ‘B+’ (good) in the years 2010, 2011, D
2012 and 2013; and ‘A’ (very good) in the year 2014. From the material
placed on record, it appears that the appellant never challenged her
gradings for any year except that for the year 2011 when she requested
for upgradation of her ACR grading from ‘B’ to ‘B+’ or ‘A’; and the
High Court, acceding to her request, upgraded her ACR to ‘B+’. As
noticed, the impugned resolution dated 27.01.2011 came to be adopted E
after due consideration of the representations made to the High Court
and in conformity with the criteria provided by the Government of India
for the posts equivalent in scale to that of District Judges. However, the
criteria of having ‘A’ (very good) grading in the preceding five years
was implemented in a phased manner, as already noticed hereinbefore. F
The appellant, not being oblivious of the position that for any upward
progression in DHJS, comparative merit would be a key factor, chose to
remain contented with her grading at ‘B+’ in the relevant years and did
not question the same at the appropriate time and in appropriate manner.
That being the position, the appellant cannot be acceded the right to
contend now and at this stage that the ACR gradings have operated G
adverse to her. The requirements of the decision in Dev Dutt (supra)
were duly met with communication of ACR gradings to the appellant.
26. Having regard to the circumstances of this case, we are
impelled to observe that while raising grievance with regard to the impact
H
410 SUPREME COURT REPORTS [2020] 9 S.C.R.

A and effect of ACR gradings, the appellant appears to have missed out
the fundamental factor that for the promotions in question, an individual’s
minimum merit, by itself, was not going to be decisive; but the relevant
factor was going to be comparative merit of the persons in the zone of
consideration. That being the position, when the persons in zone of
consideration possessing ‘A’ (very good) grading have been promoted in
B
preference to her, the appellant cannot raise a grievance about her
gradings after such promotions.
27. The other contention as on behalf of the appellant that only
the overall ACR grading was communicated but not the point-wise grading
or criteria for grading, again, does not advance the cause of the appellant
C in any manner. As noticed, the appellant did not challenge her ‘B+’
gradings in the years 2010, 2012 and 2013. She was awarded ‘B’ grading
in the year 2011 and upon her representation, the same was upgraded to
‘B+’. When the appellant had not otherwise challenged her ‘B+’ gradings
for the years under consideration, she would not be entitled to raise any
D question on the process or criteria for such award of gradings. Even
otherwise, the appellant has failed to show any legal requirement on the
respondent establishment to supply to her anything other than the overall
grading. Another feeble suggestion on behalf of the appellant, as noticed
in the impugned order by the High Court, about want of knowledge of
gradings of other officers has rightly not been pressed before us. The
E grading of an individual officer remains a matter between the officer
and the establishment and any other officer cannot claim to be informed
about the grading of any other officer as a matter of right.
28. On behalf of the appellant, however, a substantial emphasis
has been put on the observation made in the impugned order on the
F requirement of uniform norms for awarding of the grades in ACR; and it
has been contended that no objective criteria existed for evaluating an
officer. These submissions are also sans merit and do not in any manner
advance the cause of the appellant in the present case. This is for the
simple reason that the system and method for awarding of the grades in
G ACR at the relevant time was equally applicable to all the judicial officers;
and the gradings, not only of the appellant but of all other officers too,
were made by way of the same methodology. Therein too, as noticed,
the judicial officers’ work and performance was supervised and graded
by the committees comprising of three Hon’ble Judges and ultimately,
the gradings were finalised by the Full Court. In the impugned order
H
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT 411
OF DELHI [DINESH MAHESHWARI, J.]

also, the High Court found such system to be a merited one but indicated A
the want of uniform set of rules or guidelines for all the appraisal
committees to follow; and thereafter proceeded to lay down certain norms
to be kept in view by the evaluation authorities. The observations by the
High Court, essentially meant for improvement of the system with uniform
set of guidelines, do not nullify the effect of the ACRs already marked
B
by the existing system. The guidelines indicated by the High Court in the
order impugned could only be construed as being meant for future
implementation. Nothing turns upon such observations in relation to the
case of the appellant.
29. For what has been discussed hereinabove, we are clearly of
the view that the appellant has not been able to establish that she had C
suffered any prejudice in the matter of ACR gradings. Point number (2)
is also, accordingly, answered against the appellant.
30. The discussion and findings aforesaid are sufficient to dispose
of this appeal but before concluding, we deem it necessary to point out
that at the conclusion of the hearing of this matter, the appellant, who D
was present in the Court to assist the arguing counsel, made the
submissions before us, with permission, that she had been a hard working
officer and had never received any adverse comment in her career but
denial of promotion has caused her serious prejudice. In regard to such
lamentation, we deem it appropriate to observe that while the appellant, E
standing second in rank in her batch and having never earned any adverse
comment, cannot be faulted in making such expressions but at the same
time, it is expected of her to appreciate that when any particular
progression depends on comparative merit, and only the persons standing
higher in merit have been accorded such progression, her grievance
cannot partake the character of a legal grievance that could lead to any F
relief in law. We may put it differently also to say that not being found
eligible for promotion with reference to the criteria as provided is not, by
itself, any adverse pronouncement against the diligence and commitment
of the appellant. Nothing further could be or need be said in this matter.
CONCLUSION G
31. In the result, this appeal fails and is therefore dismissed with
no order as to costs and with the observations foregoing.

Devika Gujral Appeal dismissed. H