REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 432 OF 2023

Ravikumar Dhansukhlal Maheta & Anr. …Appellant(s)

Versus

High Court of Gujarat and Ors. …Respondent(s)

J U D G M E N T

M.R. SHAH, J.

1.By way of this writ petition under Article 32 of the

Constitution of India, the writ petitioners have prayed for

an appropriate writ, direction or order to declare the Select

List dated 10.03.2023 issued by the High Court of Gujarat

at Ahmedabad for the promotion of Senior Civil Judges to

the Cadre of District Judge (65% quota) as being violative

of Article 14 of the Constitution of India as well as Rule 5

of the Gujarat State Judicial Service Rules, 2005

(hereinafter referred to as “Rules, 2005”) as well as the

Writ Petition (C) No. 432 of 2023 Page 1 of 30 2023 INSC 532

Recruitment Notice – District Judge (65%) dated

12.04.2022.

2.The facts leading to the present writ petition in

nutshell are as under:-

2.1That this Court in the case of All India Judges’

Association and Ors. Vs. Union of India and Ors.,

(2002) 4 SCC 247, had directed that the recruitment to the

Higher Judicial Services, i.e., the cadre of District Judges

will be on the basis of principle of “merit-cum-seniority”

and passing a suitability test. This Court also further

directed that the appropriate Rules shall be framed as

above by the respective High Courts.

2.2In pursuance to the above directions, the High Court

of Gujarat has framed the Gujarat State Judicial Service

Rules, 2005, in which, 50 percent of the promotion from

amongst the Senior Civil Judges (Senior Division) has

been enhanced to 65 percent by way of amendment in the

Rules, 2005 on 23.06.2011. Rule 5(1)(i) of the Rules,

2005 requires that 65 percent of the posts in the cadre of

District Judges shall be filled in by way of promotion from

amongst the Senior Civil Judges on the basis of

“principle of merit-cum-seniority and passing a

suitability test”.

Writ Petition (C) No. 432 of 2023 Page 2 of 30

2.3The High Court of Gujarat at Ahmedabad issued an

advertisement by way of Recruitment Notice – District

Judge (65%) dated 12.04.2022 for the promotion to the

cadre of District Judges from amongst the Senior Civil

Judges on the basis of the principle of merit-cum-seniority

and passing a suitability test to fill up 65 percent of the

vacancies. The said Notification was issued alongwith list

of 205 judicial officers in the cadre of Senior Civil Judges

falling under the zone of consideration.

2.4At this stage, it is required to be noted that in the

Recruitment Notice itself, it was specifically mentioned

that “promotion to the cadre of District Judge (65%) from

amongst the Senior Civil Judges will be on the basis of

principle of merit-cum-seniority and on passing a

suitability test. In the Recruitment notice also, there was a

reference to the suitability test, which comprised of four

components for assessing the suitability of a judicial

officer for promotion, which reads as under:-

Sr.

No.

Components of Suitability

Test

Marks

1.Written Test (Objective Type

- MCQs)

100

2.Examination and Evaluation

of Annual Confidential

Reports for last five years.

20

Writ Petition (C) No. 432 of 2023 Page 3 of 30

3.Assessment of Average

Disposal of last five years of

the Judicial Officer

concerned.

20

4.Evaluation of Judgments

delivered by the Judicial

Officer concerned during the

period of last one year.

60

2.5Written test was conducted by the High Court on

16.10.2022. The High Court declared a list on 17.11.2022

of 175 judicial officers, who appeared in the written test

and qualified the written test. The petitioners were also

declared qualified in the written test.

2.6The High Court on 18.11.2022 called upon the

month-wise list of judgments disposed of, civil and

criminal cases, of the candidates, who have been

declared qualified vide list dated 17.11.2022. The High

Court declared on 10.03.2023, the Select List of Senior

Civil Judges. The marks of the selected candidates were

ranging between 148.50 to 100.50 marks. The petitioner

No. 1 secured 135.50 out of 200 marks and the petitioner

No. 2 secured 148.50 marks out of 200 and as though

having higher marks, they were not appointed and/or their

names were not recommended for promotion to the cadre

of District Judge, the petitioners filed the present writ

petition on 27.03.2023.

Writ Petition (C) No. 432 of 2023 Page 4 of 30

2.7This Court issued the notice in the present writ

petition on 13.04.2023 and passed a detailed speaking

order, which reads as under:-

“It is the case on behalf of the

petitioner(s) that as per the Recruitment

Rules, the post of District Judge is to be filled

in by keeping 65% reservation on the basis of

the principle of merit-cum-seniority and

passing a suitability test. It is submitted that

despite the above while making the

appointments vide Notification dated

10.03.2023, the merit-cum-seniority principle

has been given go-by and the appointments

are made on the basis of the seniority-cum-

merit. It is submitted that so far as petitioner

no.1 is concerned, he has secured 135.5

marks out of 200 and petitioner no.2 has

secured even the highest marks, i.e., 148.5

out of 200 and despite the above, the

candidates who are having lower marks have

been appointed.

Issue notice returnable on 28.04.2023.

Dasti service, in addition, is permitted.

It will be open for the petitioners to serve

copy of the petition on the standing counsel

for respondent nos. 1 and 2.”

Writ Petition (C) No. 432 of 2023 Page 5 of 30

2.8Despite having been served with the copy of the

present writ petition and though notice was made

returnable on 28.04.2023 and pending the present writ

petition, the State Government hurriedly issued the

Notification dated 18.04.2023 notifying the appointment of

68 candidates, who were selected by Select List dated

10.03.2023, however, mentioned in the Notification that

the appointments / promotions shall be subject to the

outcome of the present writ petition.

3.Shri R. Basant, learned Senior Advocate has

appeared with Shri Purvish Jitendra Malkan, learned

counsel appearing on behalf of the writ petitioners. Shri

S.V. Raju, learned ASG has appeared on behalf of the

State and Ms. Deepanwita Priyanka, learned counsel has

also appeared on behalf of the State. Shri Dushyant

Dave, Ms. Meenakshi Arora, learned Senior Advocates/

counsel have appeared on behalf of the respective

promotees.

4.Shri R. Basant, learned Senior Advocate appearing

on behalf of the respective petitioners has vehemently

submitted that the impugned selection / promotion to the

post of District Judge (65%) vide selection list dated

10.03.2023 and the further promotion order dated

Writ Petition (C) No. 432 of 2023 Page 6 of 30

18.04.2023 issued by the Government of Gujarat is

absolutely illegal and contrary to Rule 5(1)(i) of the Rules,

2005 as amended in 2011 as well as the Recruitment

Notice – District Judge (65%) dated 12.04.2022.

4.1It is submitted that as per the relevant Recruitment

Rules and the Recruitment Notice, 65 percent of the posts

in the cadre of District Judge shall have to be filled in by

way of promotion from amongst the Senior Civil Judges

on the basis of principle of merit-cum-seniority and

passing a suitability test. It is submitted that despite the

above, the High Court as well as the State Government

have given the promotion by applying the principle of

seniority-cum-merit and the principle of merit-cum-

seniority has been given a go-by. It is submitted that the

petitioner No. 1 has secured 135.5 marks out of 200

marks and the petitioner No.2 has secured even the

highest marks, i.e., 148.5 out of 200 marks and despite

the above, the candidates who are having lower marks

have been promoted.

4.2On the principle of “merit-cum-seniority” and

“seniority-cum-merit”, the learned Senior Advocate

appearing on behalf of the petitioners has heavily relied

upon the following decisions:-

Writ Petition (C) No. 432 of 2023 Page 7 of 30

(i)B.V. Sivaiah and Ors. Vs. K. Addanki Babu

and Ors., (1998) 6 SCC 720;

(ii)State of Kerala and Anr. Vs. N. M. Thomas

and Ors., (1976) 2 SCC 310;

(iii)Shriram Tomar and Anr. Vs. Praveen

Kumar Jaggi and Ors., (2019) 5 SCC 736;

and

(iv)Decision of this Court in the case of Manoj

Parihar and Others Vs. State of Jammu &

Kashmir and Ors., SLP (C) No. 11039 of

2022 decided on June 27, 2022.

4.3It is further submitted by Shri Basant, learned Senior

Advocate appearing on behalf of the respective petitioners

that the method adopted by the High Court in preparing

the Select List for promotion to the post of District Judge

is absolutely illegal and just contrary to the Rules, 2005

further amended in the year 2011. It is submitted that as

per the High Court and so stated in the counter affidavit,

explaining the procedure adopted for the selection of 68

candidates vide selection list dated 10.03.2023, it is stated

as under:-

“9. The suitability of candidate had for

components which were duly reflected in the

Recruitment Notice. The "Merit" eligibility

required a Candidate to secure minimum 40%

marks in each component with 50% marks

aggregate. Upon achieving this, the final

selection would be based on seniority.

Writ Petition (C) No. 432 of 2023 Page 8 of 30

Accordingly, a select list of 68 candidates was

prepared.”

4.4It is submitted that by adopting the above method,

the High Court has adopted the principle of “seniority-

cum-merit”. It is submitted that the High Court by

following the standard method of seniority-cum-merit is to

subject all the eligible candidates in the feeder grade

(possessing the prescribed educational qualification and

period of service) to a process of assessment of a

specified minimum necessary merit and then promote the

candidates who are found to possess the minimum

necessary merit strictly in the order of seniority. It is

submitted that though the High Court uses the

nomenclature of above method as merit-cum-seniority, but

actually has followed the principle of seniority-cum-merit.

In support of his above submission, the learned Senior

Advocate has heavily relied upon the decision of this

Court in the case of N.M. Thomas and Ors. (supra) as

well as in the case of C.P. Kalra Vs Air India (1994)

Supp. 1 SCC 454. It is submitted that in the case of C.P.

Kalra (supra), this Court has ruled that though the Rules

in the said case mention merit-cum-seniority, however,

rules elaborately lay down method of seniority-cum-merit.

Writ Petition (C) No. 432 of 2023 Page 9 of 30

4.5It is further submitted by the learned Senior

Advocate appearing on behalf of the petitioners that as

per the settled position of law, when promotion is to be

based on “merit-cum-seniority” only, the basic qualified

seniority has to be seen for eligible candidates and

thereafter the selection for promotion has to be done on

the basis of merit only. It is submitted that, however, the

process adopted by the High Court and the State is in

complete departure of the same. It is submitted that in the

present case, the High Court has considered the seniority

to be the least identified criteria for promotion, which

cannot be sustained, if the principle of “merit-cum-

seniority” as provided under the Rules, 2005 is to be

followed.

4.6It is submitted that in any case, in the present case,

the appointment in the cadre of District Judge is governed

by the Rules, 2005 as amended in the year 2011, which

specifically provides for promotion to the post of District

Judge on the basis of principle of merit-cum-seniority and

passing a suitability test.

4.7It is submitted that the High Court of Jharkhand at

Ranchi in 2019 while making appointment to the Superior

Writ Petition (C) No. 432 of 2023 Page 10 of 30

Judicial Services has followed the principle of merit-cum-

seniority, by the same method, which the petitioners are

praying before this Hon'ble Court to direct High Court of

Gujarat to follow. Reliance is placed on the decision of

the High Court of Jharkhand in the case of Writ Petition

(S) No. 3771 of 2019 dated 29.06.2022. It is further

submitted that the High Court of Calcutta has also

followed the principle of merit-cum-seniority, by the same

method, as petitioners are praying for. Merit-wise result of

normal promotion-2020 to the cadre of District Judge

issued by Calcutta High Court would go to show that the

first 17 officers, who are in the merit, are selected and

recommended for appointment to the post of District

Judge.

4.8It is submitted that from the Merit List produced by

the High Court in the Counter Affidavit, it will satisfy that

the petitioners ought to have been included in the first 68

candidates. It is submitted that if the High Court would

have followed the principle of “merit-cum-seniority”, in that

case, the petitioners would have been promoted to the

post of District Judge being more meritorious and having

more marks than the promoted candidates.

Writ Petition (C) No. 432 of 2023 Page 11 of 30

4.9It is further submitted that even otherwise once the

criteria for eligibility have been mentioned in the

recruitment notice, namely, “merit-cum-seniority” and

“suitability test”, thereafter, it was not open for the High

Court and the State to include the additional requirement /

qualification of seniority either during the process or after

the selection process. Reliance is placed on the decision

of this Court in the case of Hemani Malhotra Vs. High

Court of Delhi, (2008) 7 SCC 11.

4.10Making above submissions and relying upon the

above decisions, it is prayed to allow the present writ

petition.

5.A counter affidavit is filed on behalf of the State.

The learned Advocate appearing on behalf of the High

Court has submitted as under:-

(i)That the present writ petition under Article 32 of

the Constitution of India may not be entertained

and the petitioners may be relegated to first

approach the High Court.;

(ii)That in the present case, the Select List was

published on 10.03.2023 and the State

Writ Petition (C) No. 432 of 2023 Page 12 of 30

Government was moved on the very day to issue

necessary appointment orders.;

(iii)That in the present case, a Selection Committee

was constituted for the purpose of 2022

selection. A feeder cadre of 205 Senior Civil

Judges was created with eligibility of those who

have at-least two years of qualifying service. The

list was uploaded on 12.04.2022 and the

petitioners were enlisted in the said list.;

(iv) That the suitability of a candidate had four

components, which were duly reflected in the

Recruitment Notice. The “Merit” eligibility

required a candidate to secure minimum of 40%

marks in each component with 50% marks

aggregate. Upon achieving this, the final

selection would be based on seniority.

Accordingly, a Select List of 68 candidates was

prepared, which was in consonance with the

decision of this Court in the case of C.P. Kalra

(supra).;

(v)That the Select List was placed before the Full

Court meeting and upon approval, was published

on the website of the High Court on 10.03.2023.;

Writ Petition (C) No. 432 of 2023 Page 13 of 30

(vi)That the methodology, which has been followed

by the High Court is being followed since the

year 2011.;

(vii)That the methodology pointed out by the writ

petitioners only points out to selection based on

merit. It is submitted that once the feeder cadre

includes the candidates who have just two years

of experience and the only Marks Criterion is to

be seen, the same becomes a selection based

only on Merits giving a complete go-by to the

principle of seniority.;

(viii)That in the present case, for the selection, merit

is given preference in as much as senior

candidates pave way for meritorious candidates,

if at the first instance, they fail to qualify the

suitability test and thereafter the remaining

candidates fail to secure minimum marks in each

of the components and fail to secure aggregate

50% marks out of total 200 marks. It is submitted

that, therefore, once merit is determined,

seniority takes over. It is submitted that,

therefore, the principle of “merit-cum-seniority”

has been followed.;

Writ Petition (C) No. 432 of 2023 Page 14 of 30

(ix)That the petitioners were aware of this procedure

and participated in it without any demur. It is

submitted that therefore, the writ petitioners are

estopped from making the present challenge.;

(x)That the same formula was applied when the

present petitioners were promoted from their

respective posts to the cadre of Senior Civil

Judge. It is submitted that therefore, the writ

petitioners, thereafter, cannot make any

grievance with respect to the same methodology

adopted while considering the post of District

Judge.;

(xi)That the Andhra Pradesh High Court and the

Orissa High Court have also followed the same

methodology of principle of merit-cum-seniority.;

6.Now, so far as the submission on behalf of the

respondents not to entertain the present writ petition

under Article 32 of the Constitution of India is concerned,

the said objection is overruled. Taking into consideration

the fact that the impugned decision of the High Court has

been approved by the Full Court of the High Court and

taking into consideration the earlier decision of this Court

in the case of All India Judges’ Association and Ors.

(supra) and even thereafter also one another petition

Writ Petition (C) No. 432 of 2023 Page 15 of 30

under Article 32 of the Constitution has been entertained,

the present writ petition under Article 32 of the

Constitution is entertained.

7.Learned Senior Advocate appearing on behalf of the

promotees, while opposing the present writ petition has

made the following submissions:-

(i)That the Rules, 2005 have been framed in

compliance of the directions issued by this Court

in the case of All India Judges’ Association

and Ors. (supra). It is submitted that in

paragraph 27, this Court has held that there

should be two methods for appointment by

promotion, namely, (i) promotion on the basis of

principle of merit-cum-seniority and (ii) by

promotion strictly on the basis of merit. The

distinction between two methods of promotions is

that while in the second method, the merits

obtained by the judicial officers in the

examination alone will determine their position in

the Select List whereas while promotion as per

the first method, seniority in the feeder cadres

has to be maintained.;

Writ Petition (C) No. 432 of 2023 Page 16 of 30

(ii)That in the case of V.K. Srivastava and Ors. Vs.

Government of Uttar Pradesh and Anr., (2008)

9 SCC 77, this Court has also further clarified

that even if the principle of merit-cum-seniority

has to be applied, the principle is that if the

candidates are eligible for promotion to the cadre

of District Judges, the seniority in the feeder

category has to be maintained as regards 50

percent of the promotions are concerned and in

the case of 25 percent promotions, the test must

be rigorous and strictly on merit and such

candidate may supersede some of their

colleagues in the feeder category, i.e., Civil

Judges (Senior Division).;

(iii)That the very purpose for providing the channel

of promotion under 10% quota through limited

competitive examination is to provide an

incentive to the officers amongst the relatively

junior officers to improve and to compete with

each other so as to excel and get quicker

promotion. However, this method of promotion is

not to be applied while filling up the vacancies

under the 65% quota.;

Writ Petition (C) No. 432 of 2023 Page 17 of 30

(iv)That the merit-cum-seniority does not mean that

the length of service has no relevance and a

written examination that only tests academic

knowledge, which is sometimes, gained without

possessing overall qualities, practical experience

of practicing law.;

(v)Learned counsel appearing on behalf of the

promotees has further submitted that the

decisions relied on behalf of the petitioners shall

not be applicable for the recruitment of District

Judges. It is further submitted that even the

Rules in Jharkhand and West Bengal are distinct

and different from the Rules applicable so far as

the Gujarat is concerned. It is submitted that in

proviso to Rule 5 in Jharkhand Rules, it is stated

that seniority shall prevail only when the merit is

concluded in all respects. However, no such

provision is stated in the Rules applicable.;

(vi)Making above submissions, it is prayed to

dismiss the present writ petition.

8.At the outset, it is required to be noted that as per

the relevant Recruitment Rules, namely, The Gujarat

State Judicial Service Rules, 2005 further amended in

2011, the promotion to the post of District Judge is to be

Writ Petition (C) No. 432 of 2023 Page 18 of 30

given on the basis of principle of merit-cum-seniority and

passing a suitability test. The relevant rules read as

under: -

“……………………(1) Recruitment to the

cadre of District Judge shall be as under:-

(i) 65 percent of posts shall be filled in by

promotion from amongst the Senior Civil

Judge on the basis of principle of merit-

cum-seniority and passing a suitability

test.

(ii) 10 percent of posts shall be filled in by

promotion on the basis of merit through

competitive examination from amongst

Senior Civil Judges having not less than

five years qualifying service:

Provided that when candidates are

not available for 10% seats or are not

able to qualify in the competitive

examination, then the vacant posts shall

be filled in by regular promotion in

accordance with clause (i) above,

(iii)25 percent of the posts shall be filled in

by direct recruitment from amongst the

eligible advocates on the basis of the

written and viva voce test to be

conducted by the High Court:

Provided that all the vacancies

shall be fled up in the particular year

Writ Petition (C) No. 432 of 2023 Page 19 of 30

and unfilled post shall not be carried

forward.

xxxxxxxxxxxxxxxxx”

8.1It is also required to be noted that even as per the

Recruitment Notice – District Judge (65%), the promotion

to the cadre of District Judge (65%) from amongst the

Senior Civil Judges shall be on the basis of principle of

merit-cum-seniority and passing a suitability test. The

suitability of a judicial officer for promotion is also provided

in the Recruitment Notice, which consists of four

components reproduced hereinabove. Thus, as per the

statutory Rules and even as per the Recruitment Notice,

the promotion to the cadre of District Judge (65%) shall be

on the basis of principle of merit-cum-seniority and

passing a suitability test. At this stage, it is required to be

noted that the Rules, 2005 further amended in the year

2011, have been framed by the High Court pursuant to the

directions issued by this Court in the case of All India

Judges’ Association and Ors. (supra). It is required to

be noted that prior to the decision of this Court in the case

of All India Judges’ Association and Ors. (supra), the

promotion in the cadre of Higher Judicial Service, i.e.,

District Judges and Additional District Judges were given

on the basis of principle of seniority-cum-merit.

Writ Petition (C) No. 432 of 2023 Page 20 of 30

Emphasising the need for merit-based criteria for

promotion in the cadre of Higher Judicial Service, i.e.,

District Judges and Additional District Judges, this Court

observed in paragraph 27 as under:-

“27. Another question which falls for

consideration is the method of recruitment to

the posts in the cadre of Higher Judicial

Service i.e. District Judges and Additional

District Judges. At the present moment, there

are two sources for recruitment to the Higher

Judicial Service, namely, by promotion from

amongst the members of the Subordinate

Judicial Service and by direct recruitment. The

subordinate judiciary is the foundation of the

edifice of the judicial system. It is, therefore,

imperative, like any other foundation, that it

should become as strong as possible. The

weight on the judicial system essentially rests

on the subordinate judiciary. While we have

accepted the recommendation of the Shetty

Commission which will result in the increase in

the pay scales of the subordinate judiciary, it is

at the same time necessary that the judicial

officers, hard-working as they are, become

more efficient. It is imperative that they keep

abreast of knowledge of law and the latest

pronouncements, and it is for this reason that

the Shetty Commission has recommended the

establishment of a Judicial Academy, which is

very necessary. At the same time, we are of

the opinion that there has to be certain

minimum standard, objectively adjudged, for

officers who are to enter the Higher Judicial

Service as Additional District Judges and

Writ Petition (C) No. 432 of 2023 Page 21 of 30

District Judges. While we agree with the

Shetty Commission that the recruitment to the

Higher Judicial Service i.e. the District Judge

cadre from amongst the advocates should be

25 per cent and the process of recruitment is

to be by a competitive examination, both

written and viva voce, we are of the opinion

that there should be an objective method of

testing the suitability of the subordinate judicial

officers for promotion to the Higher Judicial

Service. Furthermore, there should also be an

incentive amongst the relatively junior and

other officers to improve and to compete with

each other so as to excel and get quicker

promotion. In this way, we expect that the

calibre of the members of the Higher Judicial

Service will further improve. In order to

achieve this, while the ratio of 75 per cent

appointment by promotion and 25 per cent by

direct recruitment to the Higher Judicial

Service is maintained, we are, however, of the

opinion that there should be two methods as

far as appointment by promotion is concerned:

50 per cent of the total posts in the Higher

Judicial Service must be filled by promotion on

the basis of principle of merit-cum-seniority.

For this purpose, the High Courts should

devise and evolve a test in order to ascertain

and examine the legal knowledge of those

candidates and to assess their continued

efficiency with adequate knowledge of case-

law. The remaining 25 per cent of the posts in

the service shall be filled by promotion strictly

on the basis of merit through the limited

departmental competitive examination for

which the qualifying service as a Civil Judge

Writ Petition (C) No. 432 of 2023 Page 22 of 30

(Senior Division) should be not less than five

years. The High Courts will have to frame a

rule in this regard.”

8.2Thereafter, this Court directed that the recruitment to

the Higher Judicial Service, i.e., the cadre of District

Judges will be 50 percent by way of promotion (which has

been subsequently increased to 65 percent) from

amongst the Civil Judges (Senior Division) on the basis of

principle of merit-cum-seniority and passing a suitability

test. Thus, this Court has categorically emphasised the

merit-cum-seniority and passing a suitability test for

promotion in the cadre of Higher Judicial Service. That

this Court directed all the High Courts / States to amend

the Rules / Regulations accordingly. Therefore, the High

Court framed the Gujarat State Judicial Service Rules,

2005, in line with the directions issued by this Court in the

case of All India Judges’ Association and Ors. (supra).

8.3In the present case and as per the case on behalf of

the High Court, so stated in the counter, the High Court

has considered the merit only for the purpose of achieving

the benchmark and thereafter has switched to the

seniority-cum-merit and has given the promotion on the

basis of seniority only amongst those, who have achieved

the benchmark of 50 percent. Thus, after conducting the

Writ Petition (C) No. 432 of 2023 Page 23 of 30

written test, which is one of the components to assess the

suitability, the High Court has considered the merits only

for the purpose of achieving benchmark and thereafter

has switched to the principle of seniority-cum-merit and

thereby has given a go-by to the principle of merit-cum-

seniority. The method adopted by the High Court is just

contrary to the observations made by this Court in

paragraph 27 in the case of All India Judges’

Association and Ors. (supra) and also contrary to the

Gujarat State Judicial Service Rules, 2005 and the

Recruitment Notice.

8.4We do not find anything in the Recruitment Rules,

2005 and/or even the Recruitment Notice to consider the

merit only for the purpose of achieving benchmark of 50

percent. The correct method would be to prepare the

merit list on the basis of the four components as

mentioned in paragraph 2 of the Recruitment Notice, from

amongst those Senior Civil Judges (including ad-hoc

Additional District Judges) having not less than two years

of qualifying service in that cadre and thereafter to

prepare the merit list on the basis of the aggregate marks

obtained under different components and thereby to give

the promotion solely on the basis of merit, then and then

only, it can be said to be following the principle of merit-

Writ Petition (C) No. 432 of 2023 Page 24 of 30

cum-seniority. Therefore, in the present case, while giving

the promotion in the cadre of District Judge, the High

Court has given a go-by to the principle of merit-cum-

seniority, which this Court has emphasised in the case of

All India Judges’ Association and Ors. (supra) .

Therefore, the High Court has adopted the wrong method.

8.5Now, insofar as the submission on behalf of the

contesting respondents – promotees and the High Court

that this procedure is being followed since 2011 and even

the same is being followed in other High Courts and

therefore, this Court may not interfere with such a method

is concerned, the aforesaid cannot be accepted. Merely

because, a wrong method is being adopted cannot be a

ground to perpetuate the same, if it is found to be illegal

and/or contrary to the directions issued by this Court,

more particularly, in the case of All India Judges’

Association and Ors. (supra).

8.6Even the objection on behalf of the promotees that

as this Court is monitoring the process of recruitment to

the post of District Judges and, therefore, the present writ

petition may not be entertained and/or by this Bench, has

no substance. What is being monitored is the process

and not the methodology adopted for promotion to the

Writ Petition (C) No. 432 of 2023 Page 25 of 30

post of District Judge. This Court is monitoring whether

the time schedule fixed by this Court in the case of Malik

Mazhar Sultan (supra) is being followed or not and the

posts are timely filled in or not. The mode and method of

the promotion is not the subject matter.

8.7Now, insofar as the reliance placed upon the

decision of this Court in the case of C.P. Kalra (supra)

relied upon on behalf of the promotees is concerned, at

the outset, it is required to be noted that the said decision

is prior to the decision of this Court in the case of All India

Judges’ Association and Ors. (supra). In the present

case, the Recruitment Rules specifically provides that the

promotion shall be given by applying the principle of merit-

cum-seniority, which is to be adhered to.

8.8Now, insofar as the reliance placed upon the

decision of this Court in the case of V.K. Srivastava and

Ors. (supra) relied upon on behalf of the promotees is

concerned, at the outset, it is required to be noted that in

the said decision, of this Court is not observing that the

principle of merit-cum-seniority is to be given a go-by.

Before this Court, it was submitted on behalf of the

petitioners that prior to the amendment of the Rules,

promotion to the cadre of District Judge was based on the

Writ Petition (C) No. 432 of 2023 Page 26 of 30

principle of “seniority-cum-merit” and now, as per the

amended Rules, pursuant to the directions issued by this

Court, the principle has been changed to “merit-cum-

seniority” and the same has seriously affected the rights

of the Civil Judges (Senior Division). However, the

amended Rules are applicable retrospectively and to that,

this Court noted the contention on behalf of the State that

in the process of promotion, merit alone was not being

given importance. There was no direct controversy before

this Court on the principle of “merit-cum-seniority” and/or

what can be said to be the “merit-cum-seniority”. The law

on the principle of “merit-cum-seniority is by now, settled

by this Court in a catena of decisions. As observed, while

applying the principle of “merit-cum-seniority”, greater

emphasis is given on merit and ability and seniority plays

a less significant role. As observed, while applying the

principle of “merit-cum-seniority”, the seniority is to be

given weight only when merit and ability are

approximately equal (See B.V. Sivaiah and Ors. (supra);

Rajendra Kumar Srivastava and Ors. Vs. Samyut

Kshetriya Gramin Bank and Ors., (2010) 1 SCC 335).

8.9It is required to be noted that in the present case

and as per the merit list produced before the High Court,

the candidates, who have secured much more marks are

Writ Petition (C) No. 432 of 2023 Page 27 of 30

denied promotion and the candidates / Civil Judge (Senior

Division), who are having less marks / leas meritorious

are promoted. In the present case, the petitioner No. 1

secured 135.50 out of 200 marks and the petitioner No. 2

secured 148.50 marks out of 200 against which a

candidate having secured 101 marks have got the

promotion, which is affecting the principle of “merit-cum-

seniority”.

9.Thus, we are more than satisfied that the impugned

Select List dated 10.03.2023 issued by the High Court

and the subsequent Notification dated 18.04.2023 issued

by the State Government granting promotion to the cadre

of District Judge are illegal and contrary to the relevant

Rules and Regulations and even to the decision of this

Court in the case of All India Judges’ Association and

Ors. (supra). Therefore, we are more than prima facie

satisfied that the same as such are not sustainable.

Though, we were inclined to dispose of the writ petition

finally, however, as Shri Dushyant Dave, learned Senior

Advocate appearing on behalf of some of the respondents

– promotees has prayed not to dispose of the writ petition

finally and, therefore, may consider the question of interim

relief, we are not disposing of the writ petition finally.

Taking into consideration the fact that the State

Writ Petition (C) No. 432 of 2023 Page 28 of 30

Government has issued the impugned Notification dated

18.04.2023 during the pendency of the present writ

petition and after the receipt of the notice issued by this

Court in the present proceedings and, thus, despite in

knowledge of the present proceedings, however, subject

to the ultimate outcome of the present writ petition and as

observed hereinabove, the State Government could have

waited till the next date of hearing by this Court, which

was on 28.04.2023 and at present the respective

promotees have not assumed their posting on the

promotional post and as such are sent for training, we

stay the further implementation and operation of the

Select List dated 10.03.2023 issued by the High Court of

Gujarat and the subsequent Notification dated 18.04.2023

issued by the State Government. Meaning thereby, the

respective promotees be sent to their original posts which

they were holding prior to their promotion vide Select List

dated 10.03.2023 and Notification dated 18.04.2023.

However, it is clarified that the present stay order shall be

confined with respect to those promotees whose names

do not figure within the first 68 candidates in the Merit List

on the basis of the merits, the copy of which is produced

by the High Court along with the counter. Meaning

thereby, the promotion of those promotees, whose names

Writ Petition (C) No. 432 of 2023 Page 29 of 30

otherwise do figure in the first 68 candidates in the Merit

List shall be continued as even otherwise and even if the

writ petition is allowed, in that case also, they will get the

promotion on merits.

10.Looking to the importance of the matter and the

observations made by this Court in the case of All India

Judges’ Association and Ors. (supra), pursuant to

which the High Court has amended the Rules and the

Regulations, we are of the opinion that let the matter be

heard by the Bench headed by Hon’ble the Chief Justice

of India, however, subject to and after obtaining

appropriate orders from the Hon’ble the Chief Justice of

India on the administrative side. The Registry is directed

to notify the present writ petition for final hearing on

08.08.2023.

………………………………….J.

[M.R. SHAH]

NEW DELHI; ………………………………….J.

MAY 12, 2023. [C.T. RAVIKUMAR]

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