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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.