Service Law – Principles of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ summarized- The principle of ‘Seniority-cum-Merit’ postulates that: – i. Minimum requirement of merit and suitability which is necessary for the higher post can be prescribed for the purpose of promotion. ii. Comparative Assessment amongst the candidates is not required. iii. Seniority of a candidate is not a determinative factor for promotion but has a predominant role. iv. Upon fulfilling the minimum qualifications, promotions must be based on inter-se seniority – The principle of ‘Merit-cum-Seniority’ postulates that: – i. Merit plays a predominant role in and seniority alone cannot be given primacy. ii. Comparative Assessment of Merit is a crucial, though not a mandatory, factor. iii. Only where merit is equal in all respects can inter-se seniority be considered. Meaning that a junior candidate can be promoted over the senior if the junior is more meritorious- Merit-cum-Seniority’ or ‘Seniority-cum-Merit’ are flexible in nature and do not prescribe any fixed or strait-jacket definitions. These definitions take character and substance from the context in which they are employed. Their full import and nuances only become visible when they are exposed to the guiding light of the overall promotional policy of the organisation.(Para 130)
Constitution of India, 1950; Article 235– When it comes to promotion of judicial officers of the District Judiciary, the control vests with the High Court under Article 235 of the Constitution. The High Court being the sole authority in this regard can clearly lay down rules and policies pertaining to promotions which includes the power to specify the criteria and parameters it deems most suitable and appropriate for the purpose of promotion and the manner in which promotion is to be made as long as it is within the contours of what has been laid down in All India Judges’ Association (3) – (Para 119)
Constitution of India, 1950; Article 32– The availability of an alternative remedy does not in any manner affect the maintainability of the writ petition under Article 32 of the Constitution. The rule behind relegating a party to first avail the alternative remedy before knocking the doors of this Court is a rule of selfrestraint that is exercised by this Court as a matter of convenience. Further, wherever the facts of the case are not in dispute, and the issue involves the interpretation of rules which are of significant importance having a far-reaching effect, it would be a fit case for this Court to exercise its discretion and entertain the writ petition under Article 32 even if there is an alternative remedy available. (Para 40-41)
Constitution of India, 1950; Article 226 -High Court on its judicial side can always review any decision or action taken by it on its administrative side. It would be erroneous to say that if any decision taken by the High Court on its administrative side is ultimately challenged on any legal ground on its judicial side, then the High Court may not undertake judicial review of such administrative decision dispassionately. (Para 42)
Gujarat State Judicial Service Rules, 2005 –Suggestions By SC: (i) Apart from the four components included in the Suitability Test, an additional fifth component in the form of an Interview or Viva Voce should also be included in order to assess the ability and knowledge of the candidates. (ii) The High Court may consider enhancing the minimum specified threshold of marks as prescribed in the suitability test and each of its component. (iii) The evaluation of judgments delivered by the judicial officer being considered for promotion should be of the last two years instead of one year. (iv) Instead of seniority being considered at the very last stage of the process, some marks may be allocated for seniority at the stage of suitability test and thereafter, the final select list may be prepared on the basis of total marks. (Para 140)
Summary: Writ petition contended that the High Court of Gujarat erroneously applied the principle of ‘Seniority-cum-Merit’ in the recruitment undertaken by it in the year 2022 for promotion of Civil Judges (Senior Division) to the post of Additional District Judge against 65% quota, though Rule 5(1) of the 2005 Rules stipulates that the promotion shall be based on the principle of ‘Merit-cumSeniority’ – It was contended that the High Court wrongly subjected all eligible candidates in the feeder cadre i.e., Civil Judge (Senior Division) to a process of assessment of a specified level of minimum merit and then proceeded to prepare the final Select List strictly in accordance with the seniority of the candidates. This according to the petitioners is nothing but ‘Seniority-cum Merit’ – Dismissing WP, SC held: Select List dated 10.03.2023 is not contrary to the principle of ‘Merit-cum-Seniority’ as stipulated in Rule 5(1)(I) of the 2005 Rules- What has been conveyed, in so many words, by this Court in All India Judges’ Association (3) v. Union of India & Ors. reported in (2002) 4 SCC 247 is that the suitability of each candidate should be tested on their own merit. The aforesaid decision does not speak about comparative merit for the 65% promotional quota. In other words, what is stipulated is the determination of suitability of the candidates and assessment of their continued efficiency with adequate knowledge of case law. (B) For the 65% promotional quota this Court in All India Judges’ Association (3) (supra) did not state that after taking the suitability test, a merit list should be prepared and the judicial officers should be promoted only if they fall in the said merit list. It cannot be said to be a competitive exam. Only the suitability of the judicial officer is determined and once it is found that candidates have secured the requisite marks in the suitability test, they cannot be thereafter ignored for promotion. (C) However, we clarify that for the 65% promotional quota, it is for a particular High Court to prescribe or lay down its own minimum standard to judge the suitability of a judicial officer, including the requirement of comparative assessment, if necessary, for the purpose of determining merit to be objectively adjudged keeping in mind the statutory rules governing the promotion or any promotion policy in that regard -Promotion process adopted by the High Court of Gujarat as the same fulfils the twin requirements stipulated in paragraph 27 of All India Judges’ Association (3) (supra) being: – (I) The objective assessment of legal knowledge of the judicial officer including adequate knowledge of case law and; (II) Evaluation of the continued efficiency of the individual candidates. (Para 141)