Full Judgment Text
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CASE NO.:
Appeal (civil) 5773-5776 of 2000
PETITIONER:
K.K. Parmar & Ors.
RESPONDENT:
H.C. of Gujarat Th. Registrar & Ors.
DATE OF JUDGMENT: 12/05/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
The Appellants herein are assistants working in the High Court of
Gujarat. Their promotion to the post of Section Officer was due. There
were 25 vacancies in the post of Section Officer. A written examination was
held for the said purpose. All the assistants eligible therefor appeared at an
written examination. 29 employees did not obtain the requisite marks for
appearing at the viva-voce examination. They filed a writ petition before the
Gujarat High Court which was numbered as SCA No. 351 of 1998.
19 of them although cleared the written test but did not do well in
viva-voce. They filed a writ petition before the High Court which was
numbered as SCA No. 1298 of 1999.
The post of Section Officer is a selection post. The terms and
conditions of service are governed by Gujarat (Recruitment and Conditions
of Service of Staff) Rules, 1964 (for short "the 1964 Rules"). Rule 38 of the
1964 Rules relates to promotion which is set out hereunder:
"38(1) Promotions shall be made on merit, but
seniority in the cadre shall be ordinarily taken into
account as far as possible. A person, however,
may receive special promotion for recognized
merit irrespective of the grade to which he may
belong or irrespective of the seniority within the
grade.
(2) The post of Superintendent and any higher post
shall be considered as selection post and no court
servant shall have a claim to them merely by way
of seniority."
An office order in the form of a ’resolution’ was issued by the
Government of Gujarat on or about 20th March, 1982 which is in the
following terms:
"In Government Resolution, General
Administration Department No. SLT 1177 G,
DATED 20/05/1978 the principle of selectivity has
been accepted for the purpose of appointment by
promotion to the post of Heads of Departments.
For this purpose a selection committee is also set
up under Government Resolution, General
Administration Department No. SLT 1177 G-2
dated 11/11/1980 consisting of (1) the Chief
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Secretary (2) the Senior Most Secretary to
Government next to Administrative Department
concerned.
The Selection Committee will classify
officers within the zone of consideration as
outstanding, very good, good and unfit for
promotion. The Selection list will then be
prepared in the size equal to number of vacancies
in the same order, subject to maintenance of
seniority of classification also. Government is
pleased to direct in consultation of Gujarat Public
Service Commission zone of consideration shall be
as under:-
No. of vacancies No. of officers to be
considered
1. 5
2. 8
3. 10
4. or more three times number
of vacancies
All Secretariat Departments should strictly
ensure that these instructions are in variable
followed while considering promotion to the post
filled by promotion on selection basis."
The High Court of Gujarat also framed rules known as "The High
Court of Gujarat (Recruitment & Conditions of Service of Staff) Rules, 1992
(for short "the Rules"). Rule 47 of the said Rules relates to promotion. Sub-
rule (2) of Rule 47, sub-rule (1) of Rule 50 and sub-rule (1) of Rule 91
which are relevant for our purpose are set out hereunder:
"47.(2) (a) For promotion to the post of Section
Officer from Assistant the promotion will be
effected strictly on consideration of efficiency and
proved merits. Merits shall be determined on the
basis of the past performance and performance at
the written and oral to be taken by the Selection
Committee as may be appointed by the Chief
Justice\005
50(1) In respect of all such matters regarding the
conditions of service of Court servants for which
no provision or insufficient provision has been
made in these Rules, the rules and orders for the
time being in force and applicable to servants
holding corresponding posts in the Government of
Gujarat, which are not inconsistent with these
Rules, shall regulate the conditions of service of
Court servants subject to such modifications,
variations, and exceptions, if any, in the said rules
and orders, as the Chief Justice may, from time to
time specify.
Provided that no order containing
modifications, variations or exceptions in Rules
relating to salaries, allowances, leave or pensions
shall be made by the Chief Justice except with the
approval of the Governor.
91. Savings of the powers of the Chief Justice:-
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(1) Nothing in these Rules shall be construed to
limit or abridge the powers of the Chief Justice to
deal with the case of any Court servant or any
person to be appointed to the service in such
manner as may appear to him to be fit and proper.
(2) The Chief Justice may from time to time
alter, amend or repeal any of these Rules and make
such further Rules or pass such orders as he may
deem fit in regard to all matters herein provided or
matters incidental or ancillary to these Rules or in
regard to matters which have not been provided or
sufficiently provided for in these Rules.
Provided that if such orders relate to pay,
salaries, allowances, leave or pension of the
servants of the High Court such orders shall be
made with the approval of the Governor."
The writ petitioners \026 Appellants principally raised two contentions:
(i) The High Court committed an illegality in allowing all the 91
candidates to appear at the viva-voce test although the zone of
consideration therefor as envisaged under the Resolution dated 20th
March, 1982 was confined to the three times number of vacancies
and, thus, not more than 75 persons could have been allowed to be
brought within the zone of consideration.
(ii) There had been a gross violation of sub-rule (2) of Rule 47 of the
Rules in terms whereof merit was to be determined on the basis of
(i) past performance, (ii) written test, (iii) oral test, but as no
criteria was fixed relating to past performance of the candidate, the
entire selection process was vitiated in law.
The said contentions found favour with the learned Single Judge of
the High Court.
The said learned Single Judge repelled the contentions raised on
behalf of the High Court that the Acting Chief Justice had exercised his
power to modify the rules, stating:
"9. There is distinction between the exercise of
powers by the Chief Justice in framing the rules
with respect to the condition of service of Officers
and servants of the High Court under Article 229,
including the power of modification and variations
of the rules of the State Government applicable to
the High Court employees by virtue of power
preserved under Rule 50(1) of the Rule of 1992
and the exercise of powers by the Chief Justice as
Executive Head of the High Court establishment
under the rules, framed by him. The Chief Justice
as well has to follow the rules framed by him
punctually and faithfully as others are to follow.
Any breach of rule by the Chief Justice cannot be
construed as exercise of power of modification of
rules. Reverting to the direction dated 2.9.1997, in
my view, the Hon’ble the then Acting Chief
Justice was in error in considering that the 12
persons against whom there were adverse remarks,
could be excluded from the zone of consideration.
What is the effect of adverse remarks in the
A.C.R., was a matter for the Selection Committee
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to consider. A person cannot be excluded from the
zone of consideration for the reason that there is
adverse entry. Similarly, it was wrong to consider
that six persons against whom departmental
inquiry was pending, could be excluded from the
zone of consideration. If the departmental inquiry
is pending against a person in the eligibility list,
the Selection Committee is required to follow a
known procedure of "sealed cover". Thus, the
very premises on which the zone of consideration
has been extended is contrary to law."
However, having regard to the fact that only 14 candidates were
selected against 25 vacancies, it was directed:
"Thus, it is only the consideration of candidates
beyond the zone of consideration, i.e., beyond Sr.
No. 75 in eligibility list being in violation and
breach of G.R. dated 20.3.1982 which can held to
be illegal. Consequently, it is held that selection of
respondents No. 10 to 15 namely, Mr. G.S.
Marapally, whose name appears at Sr. No. 76,
Mrs. N P Tekani, whose name appears at Sr. No.
77 in the list of eligible candidates, respondent No.
12 Mr. V.K. Pathak, at Sr. No. 85, respondent No.
13 Mrs. Sujitra Rajan at Sr. No. 88, respondent No.
14 Mr. A.S. Raghupathy at Sr. No. 89 and
respondent No. 15, Mrs. Gracy ST. at Sr. No. 90 is
illegal and bad in law."
In regard to the contention of violation of Rule 47, the learned Single
Judge opined:
"\005It is stated that upto 1979, promotions were
given on the basis of seniority-cum-merit. The
merit was considered on the basis of Confidential
Reports and other service record. However,
thereafter, a method of judging the capacity of the
Senior Assistants due for promotion to hold the
Supervisory post of Section Officer from their
performance on the tables on which they were
working was not found adequate and, therefore, it
became necessary to evolve some method in
addition to the consideration of the Confidential
Reports and other service record whereby the
suitability or otherwise of the candidate can be
assessed properly in the interest of office
efficiency. It is also submitted that the system of
taking written and oral test to assess suitability or
otherwise on a comparative evaluation of the
eligible candidates thus came into existence after
1979. In November 1979, the Hon’ble the then
Chief Justice directed to take interview of the
Assistants concerned and prepare select list in the
order of merit. They were also tested by asking
them to prepare some submissions. Thereafter, in
the year 1981, written test and oral interview were
taken on 31.7.82, 22.2.83, 31.12.83, 24.8.85,
7.3.87, 20.2.88, 2.3.96 and 27.7.97. In para 14, it
is stated that the Selection Committee also
considered the Adverse Reports recorded in the
ACR against the candidates. This fact does not
find confirmation from the proceedings of oral
test."
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Noticing that no mark was allotted for the past performance, which
played a significant role, it was opined that the High Court did not take
cognizance of the mandate given by the Chief Justice as contained in Rule
47 opining:
"\005In fact the new mechanism ought to have been
evolved immediately after coming into force of
Rules of 1992, in conformity with the mandate of
Rule 47. Thus, it is not only wrong on the part of
the High Court to continue with the old procedure
of selection, even after coming into force of the
Rules of 1992, but it is in utter disregard of the
Rule 47. Thus, the unreported decision cited on
behalf of the High Court has no relevance in the
context of the Rules of 1992."
The learned Single Judge further held:
"\005Thus, the Hon’ble Chief Justice, in his wisdom,
while exercising the powers under Article 229 of
the Constitution of India, in framing rule 47 of the
Rules of 1992, provided combination of three
components, i.e., past performance, written test
and oral test for determination of merit in the
matter of promotion on selection post. However,
the mechanism evolved prior to 1992 has been
carried forward, unmindful of the fact that it does
not contain the important component of "past
performance". Without over-emphasizing the
importance of "past performance", it cannot be
disputed that for recruitment from among the
persons of matured personality, appraisal of past
performance is the basic and essential requirement.
It is also not in dispute that the system of writing
Annual Confidential Report is in existence in the
High Court establishment. It is of course true that
it has been subject to criticism to certain extent,
but for that efforts can be made to bring change
therein by substituting a new and more open
Participatory Appraisal system. The comparative
merit could be assessed by taking into
consideration, the Annual Confidential Reports.
Dealing with seniority in judging the merit, it is
true that seniority occupies the back seat in case of
selection purely by merit, still, it cannot be ignored
completely\005"
The High Court noticed the marks obtained by the 15 employees in
the written examination and held that in adopting the selection process, merit
has taken a back seat, in the following terms:
"It is indeed a travesty of selection that persons of
average merit have superseded large number of
employees in the cadre of Assistants in the name
of merit. Most of the selected candidates scored
minimum marks i.e. 40% which is just above 1/3
of the maximum i.e. III Division marks. Fixing
qualifying mark as 40% and ultimate selection on
merit are two different things. A person in scoring
total 40% marks, by no stretch of imagination can
said to be a person of proven merit. In Janki
Prasad’s case (supra), the Apex Court, with respect
to scoring of just 1/3 of maximum marks, i.e., 30%
observed, "it would be absurd to make selection
with such a cutting score."
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The Division Bench of the High Court, on the other hand, was of the
opinion that the said Resolution dated 20th March, 1982 will have no
application whatsoever. As regard alleged violation of Rule 56, the Division
Bench held:
"\005The fact that service records were called for
and were placed before the selection committee is
not in dispute and, therefore, it would be
reasonable to presume that service records were
considered by the selection committee. However,
non-assignment of marks would not indicate that
the selection was made by the selection committee
in an arbitrary manner. Rule-47(2) of the Rules is,
in our view, complied with and there has been no
material indicating irregularity or illegality
committed by the selection committee when it did
not indicate separate marks for past performance.
As pointed out earlier, merits has to be assessed on
the basis of past performance, written test and oral
test. When a candidate has to appear at written and
oral test his merits can be ascertained with
reference to marks obtained by him at the tests.
However, no test is being held for past
performance and what is required to be done is to
scrutinise and examine the past record for which
assignment of marks may not be necessary in all
cases. What procedure should be adopted for
assessing merits while considering, three criterions
has to be left to the selection committee and it is
not open to the Court hearing a petition under
Article 226 of the Constitution to lay down that a
particular procedure ought to have been adopted
by the selection committee. No conclusion is
possible that in absence of allotment of separate
marks for past performance, Rule 47(2) stands
breached\005"
Taking note of an unreported judgment of the said High Court, the
Division Bench stated:
"The selection committee had followed the
procedure of holding written test of 60 marks
followed by oral test of 20 marks and the criteria
adopted for the selection was that the candidate
who scored 40% marks in aggregate should be
considered eligible for section. Therefore, to be
eligible for selection a candidate was required to
obtain minimum 32 marks out of 80 in aggregate
at the written as well as oral tests. However, it was
found that several candidates had obtained less
than 11 marks at the written test and on submission
being made, the selection committee directed that
those who had secured less than 11 marks at the
written test should not be called for oral test
because even if 20 marks were secured at the oral
test by those candidates, the total would not be
40% marks. We find that since the oral test was of
20 marks, even if a candidate securing 11 marks at
the written test was given full 20 marks, he would
not reach the qualifying standard of 32 marks out
of 80 and, therefore, only such of the candidates
who had secured 12 or more marks at the written
test, were called for oral test. In our view, this
cannot be said to be illegal at all. It would have
been an exercise in futility to call those candidates
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for interview who had secured less than 12 marks
at the written test..."
Mr. Sanjay Kapur, learned counsel appearing on behalf of the
Appellants submitted that the High Court on its administrative side,
committed a manifest illegality in promoting some Assistants to the posts of
Section Officers in violation of the aforementioned Resolution of the State
dated 20th March, 1982 as also in flagrant violation of Rule 47 of the said
Rules.
Ms. Hemantika Wahi and Ms. Meenakshi Arora, learned counsel
appearing on behalf of the Respondents, however, supported the judgment of
the Division Bench.
A bare perusal of the purported Resolution adopted by the
Government of Gujarat on 20th March, 1982 clearly shows that the same was
applicable only in relation to the Head of the Departments. A rule framed by
the State in exercise of its power under proviso appended to Article 309 of
the Constitution of India may be applicable to the employees of the High
Court but the executive instructions issued would not be and in particular
when the same is contrary to or inconsistent with the Rules framed by the
Chief Justice of the High Court in terms of Article 229 of the Constitution of
India. The Resolution dated 20th March, 1982 ex facie applies to the cases
of appointment by promotion to the posts of Head of the Department. It,
therefore, had no application to promotion to the post of Section Officers,
who are not Head of the Department.
In terms of the said Resolution, the selection committee itself was
required to classify officers within the zone of consideration as
’outstanding’, ’very good’, ’good’ and ’unfit for promotion’. Such a
procedure is not adopted in the matter of appointment to the posts pertaining
to the administrative side of the High Court. It is the Chief Justice of the
High Court who is concerned with the performance of the officers. The said
Resolution dated 20th March, 1982 provides that the Public Service
Commission was to be consulted so far as the appointment of the employees
is concerned. The Public Service Commission does not come into picture at
all in the matter of promotion of the assistants to the posts of Section
Officers. We, therefore, have no hesitation to hold that the said Resolution
has rightly been held to be inapplicable by the Division Bench of the High
Court.
The Registry of the High Court brought the said Resolution to the
notice of the then Acting Chief Justice that only 75 eligible Assistants fall
within the zone of consideration but it was directed that as 91 employees
included 12 such employees against whom adverse remarks were made and
6 out of such employees against whom enquiries were pending and, thus,
restricting 75 employees within the zone of consideration, it would mean
that only 75 \026 18 = 57 would be considered. It was, therefore, directed:
"There is no reason to exclude 76 to 91 (16)
eligible persons when 18 persons also being
considered."
Mr. Kapur may be right in his submission that applicability of the said
Resolution had never been questioned. The High Court on its administrative
side admittedly proceeded on the basis that the said Resolution of the State
was applicable and only on the said premise placed the matter before the
then Acting Chief Justice for his direction as to whether only 75 Assistants
should be invited to appear before the Selection Committee being within the
zone of consideration in terms of the said Resolution. Even applicability of
the said Resolution was not questioned before the learned Single Judge, but
the same would not, in our considered view, mean that only because at one
point of time the High Court committed a mistake in proceeding on the basis
that the said Resolution of the State was applicable to its own employees, the
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said contention cannot be permitted to be raised at all. If, per se, no
illegality has been committed by the then Acting Chief Justice of the High
Court in allowing all the 91 eligible employees to be brought within the zone
of consideration, only because the Registry thought that the said resolution
would be applicable, the same by itself, in our considered opinion, would not
render the selection process invalid.
The superior court exercising its power of judicial review is not
concerned as to whether a wrong provision of law has been taken recourse
to, but is only concerned with the question as to whether the authority
passing the order had the requisite jurisdiction under the law to do so or not.
In the event, it is found that the impugned order is not ultra vires or illegal or
without jurisdiction, the same would not be interfered with only because it at
one point of time proceeded on a wrong premise. A jurisdictional question,
in our opinion, can always be permitted to be raised. We, therefore, do not
find any substance in the said contention of Mr. Kapur.
In so far as the second contention raised on behalf of the Appellants is
concerned, apparently the same has merit. Merit was the only consideration
for promotion to the post of Section Officer. They were selection posts.
Selection was, therefore, required to be made strictly on the basis of
respective merit of the candidates as also on the basis of their past
performance. No employee had a claim to those posts only on the basis of
their seniority.
Sub-rule (2) of Rule 47 of the Rules categorically provides for the
mode and manner as to how the merit should be determined. In terms
thereof, merit of a candidate was to be determined on the basis of: (i) past
performance, (ii) performance at the written test and (iii) performance at the
oral test to be taken by the selection committee.
Whereas 60 marks were fixed for the written test and 20 marks for the
oral, no mark whatsoever was allotted towards past performance. An
endeavour has been made by the learned counsel for the Respondents to
contend that as the Appellants were aware that no marks had been allotted in
regard to the past performance but despite the same, they, having taken part
in the examination, were estopped and precluded from questioning the same.
We do not agree.
Sub-rule (2) of Rule 47 of the Rules specifies the mode and manner in
which respective merit of the candidate is to be determined. The High Court
or for that matter the selection committee could not have ignored the same.
In any event, it was for the members of the selection committee, in absence
of any marks having been allotted under the rules for judging the past
performance of the candidates, to devise a mode therefor. The candidates
had no say in the matter. Annual Confidential Reports of the employees
concerned must have been placed before the selection committee with a
view to enable it to prepare a select list. If they had not adopted any criteria
in that regard, the concerned employees cannot be blamed therefor.
The same, however, may not by itself be sufficient to set aside the
entire selection process. The records have not been placed before us. The
Appellants might not have obtained the requisite marks for passing the
examination either in the written test or at the oral test or both. If any of the
Appellants, failed to obtain qualifying marks fixed in terms of the Rules,
viz., 40 marks, the question as to whether their past performance was
otherwise better than the candidates who had been selected would take a
back seat. However, only such candidates who had not only passed both
written and oral tests, their past performances were required to be taken into
consideration.
Merit of a candidate is not his academic qualification. It is sum total
of various qualities. It reflects the attributes of an employee. It may be his
academic qualification. He might have achieved certain distinction in the
University. It may involve the character, integrity and devotion to duty of
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the employee. The manner in which he discharges his final duties would
also be relevant factor. [See Guman Singh v. State of Rajasthan and Others,
(1971) 2 SCC 452]
For the purpose of judging the merit, thus, past performance was a
relevant factor. There was no reason as to why the same had been kept out
of consideration by the Selection Committee. If a selection is based on the
merit and suitability, seniority may have to be given due weight but it would
only be one of the several factors affecting assessment of merit as
comparative experience in service should be.
In Union of India v. M.L. Capoor and Others, [AIR 1974 SC 87], this
Court opined:
"\005The Selection Committee has an unrestricted
choice of the best available talent, from amongst
eligible candidates, determined by reference to
reasonable criteria applied in assessing the facts
revealed by service records of all eligible
candidates so that merit and not mere seniority is
the governing factor\005"
Our attention has further been drawn to the fact that out of 29
Assistants, 4 have already retired and 17 have already been promoted. Only
the cases of 8 Assistants are pending promotion.
In view of the principles laid down by this Court, therefore, the cases
of those 8 Assistants who had not been promoted, in our opinion, should be
directed to be considered afresh. We do so. In the event, they are found to
be suitable for promotion, having regard to the fact that the Chief Justice of
the High Court is the appointing authority, the High Court may consider the
question as to whether such promotion, if any, should be given retrospective
effect or not.
These appeals are allowed to the aforementioned extent. There shall
be no order as to costs.