# Ravikumar Dhansukhlal Maheta & Anr v. High Court of Gujarat & Ors

- **Citation:** 2024 INSC 436
- **Court:** Supreme Court of India
- **Decided:** 2024-05-17
- **Bench:** Dr. Dhananjaya Y. Chandrachud, J.B. Pardiwala, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ravikumar-dhansukhlal-maheta-anr-v-high-court-of-gujarat-ors-37791
- **Pages:** 74

## Headnote

(i) What is the scope of principle of the 'Merit-cum-Seniority' in
service jurisprudence; and (ii) Whether promotion of Civil Judges
(Senior Division) to the cadre of District Judges in accordance
with Rule 5(1) of the Gujarat State Judicial Service Rules, 2005
and the Recruitment Notice dated 12.04.2022 issued by the High
Court of Gujarat is contrary to the principle of 'Merit-cum-Seniority'
as laid down in All India Judges' Association (3).
Headnotes†
Constitution of India - Art. 32 and Art.226 - Maintainability
of the Writ Petition under Article 32 - A preliminary objection
was raised as regards the maintainability of the writ petition
under Article 32 of the Constitution, on the ground that the
petitioners have an efficacious alternative remedy available
to them under Article 226 of the Constitution:
Held: Two judicial officers of the rank of Civil Judge (Senior Division)
governed by the Gujarat State Judicial Service Rules, 2005 have
invoked the jurisdiction under Article 32 of the Constitution - 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 self-restraint 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. [Paras 40, 41]
* Author
[2024] 5 S.C.R.
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High Court of Gujarat & Ors.
Gujarat State Judicial Service Rules, 2005 - The Legislative
History and Scheme of the Gujarat State Judicial Service
Rules, 2005 - discussed.
Gujarat State Judicial Service Rules, 2005 - Rule 5(1) with
Rule 5(3) - Modes of recruitment:
Held: A combined reading of the Rule 5(1) with Rule 5(3) of the
2005 Rules makes it clear that there are three distinct modes of
recruitment to the cadre of District & Sessions Judge which are
as follows: - (I) 65% posts by promotion from the eligible Civil
Judges (Senior Division) having a minimum of two-years of service
on the basis of 'Merit-cumSeniority'; (II) 10% posts by promotion
from eligible Civil Judges (Senior Division) with a minimum of
five-years of service on basis of merit through a competitive
examination and; (III) 25% posts by direct recruitment from the
eligible members of the Bar on the basis of a written exam and
viva voce. [Para 67]
Service Law - Evolution of the Principles of 'Merit-cumSeniority' and 'Seniority-cum-Merit' in Service Jurisprudence -
discussed.
Service Law - Principle of 'Seniority-cum-Merit':
Held: 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. [Para 98 (I)]
Service Law - Principle of the 'Merit-cum-Seniority':
Held: 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. [Para 98 (II)]
Service Law - Principles of 'Merit-cum-Seniority' and 'Senioritycum-Merit' - Nature of these principles:
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[2024] 5 S.C.R. 1074 : 2024 INSC 436
Ravikumar Dhansukhlal Maheta & Anr.
v.
High Court of Gujarat & Ors.
(Writ Petition (c) No. 432 of 2023)
17 May 2024
[Dr. Dhananjaya Y. Chandrachud, CJI, J.B. Pardiwala*
and Manoj Misra, JJ.]
Issue for Consideration
(i) What is the scope of principle of the 'Merit-cum-Seniority' in
service jurisprudence; and (ii) Whether promotion of Civil Judges
(Senior Division) to the cadre of District Judges in accordance
with Rule 5(1) of the Gujarat State Judicial Service Rules, 2005
and the Recruitment Notice dated 12.04.2022 issued by the High
Court of Gujarat is contrary to the principle of 'Merit-cum-Seniority'
as laid down in All India Judges' Association (3).
Headnotes†
Constitution of India - Art. 32 and Art.226 - Maintainability
of the Writ Petition under Article 32 - A preliminary objection
was raised as regards the maintainability of the writ petition
under Article 32 of the Constitution, on the ground that the
petitioners have an efficacious alternative remedy available
to them under Article 226 of the Constitution:
Held: Two judicial officers of the rank of Civil Judge (Senior Division)
governed by the Gujarat State Judicial Service Rules, 2005 have
invoked the jurisdiction under Article 32 of the Constitution - 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 self-restraint 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. [Paras 40, 41]
* Author
[2024] 5 S.C.R.
1075
Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.
Gujarat State Judicial Service Rules, 2005 - The Legislative
History and Scheme of the Gujarat State Judicial Service
Rules, 2005 - discussed.
Gujarat State Judicial Service Rules, 2005 - Rule 5(1) with
Rule 5(3) - Modes of recruitment:
Held: A combined reading of the Rule 5(1) with Rule 5(3) of the
2005 Rules makes it clear that there are three distinct modes of
recruitment to the cadre of District & Sessions Judge which are
as follows: - (I) 65% posts by promotion from the eligible Civil
Judges (Senior Division) having a minimum of two-years of service
on the basis of 'Merit-cumSeniority'; (II) 10% posts by promotion
from eligible Civil Judges (Senior Division) with a minimum of
five-years of service on basis of merit through a competitive
examination and; (III) 25% posts by direct recruitment from the
eligible members of the Bar on the basis of a written exam and
viva voce. [Para 67]
Service Law - Evolution of the Principles of 'Merit-cumSeniority' and 'Seniority-cum-Merit' in Service Jurisprudence -
discussed.
Service Law - Principle of 'Seniority-cum-Merit':
Held: 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. [Para 98 (I)]
Service Law - Principle of the 'Merit-cum-Seniority':
Held: 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. [Para 98 (II)]
Service Law - Principles of 'Merit-cum-Seniority' and 'Senioritycum-Merit' - Nature of these principles:
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Held: The principle of 'Merit-cum-Seniority' and 'Seniority-cumMerit' are a flexible and a fluid concept akin to broad principles
within which the actual promotion policy may be formulated - They
are not strict rules or requirements and by no means can supplant
or take the place of statutory rules or policies that have been
formulated, if any - These principles are dynamic in nature very
much like a spectrum and their application and ambit depends upon
the rules, the policy, the nature of the post and the requirements
of service - The principles applicable to promotion such as the
principle of 'Merit-cum-Seniority' and 'Seniority-cum-Merit' can
best be described as two ends of a spectrum - They are broad
categories or frameworks for promotion and do represent the actual
modalities by which promotions are to take place - It is the rules
and the promotion policy, along with the intention of the legislature
or the selection board, as the case may be, that supplements these
principles and delineates the actual modality of how promotion
is to take place - Through these rules and promotion policy,
the legislature or the selection body specifies the area and the
parameters or the weightage which is to be given to the aspect of
"Merit" and "Seniority" on the said spectrum. [Para 110]
Constitution of India - Art. 235 - High Court as a custodian
of the District Judiciary under Article 235 of the Constitution:
Held: It is clear that 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]
Service Law - Objectives intended to be achieved through All
India Judges' Association (3) - Two-fold objectives:
Held: (i) First, to ensure that unlike the traditional promotion policy
under which seniority alone was considered for promotion, a new
policy should be devised under which seniority would be considered
for promotion, but only for those candidates who possessed the
minimum necessary standard of suitability for the post, and;
(ii) Secondly, to prevent loss of motivation amongst the relatively
junior members of the service, a third category for promotion to
[2024] 5 S.C.R.
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High Court of Gujarat & Ors.
the Higher Judicial Service should be created, wherein promotions
would be given strictly on the basis merit, to be ascertained through
a limited departmental competitive examination - Thus, while the
comparison of inter-se merit to determine the most meritorious
candidates was the procedure to be adopted for filling up the seats
under the newly created category, it was never the intention of
this Court in the aforesaid decision to mandate the comparative
assessment of merit in the category of regular promotions based
on seniority - The only additional requirement which was provided
for by the aforesaid decision for this category of candidates was the
possession of certain minimum objectively determinable standard
of suitability. [Paras 127, 128]
Service Law - Judiciary - Promotion - Introduction of a
suitability test:
Held: The objective sought to be achieved by the introduction of
a suitability test in the regular promotional category was limited
to the assessment of a minimum standard of suitability - It would
be incorrect to say that the marks scored by a candidate in the
suitability test are proportional to the merit of the candidate -
This can be understood with the aid of an illustration - Take a
case wherein the minimum marks required to be obtained in the
suitability test is 'x'; then for the purpose of 65% promotional
quota, as soon as a candidate obtains 'x' marks in the suitability
test, such a candidate becomes eligible for being considered for
promotion in that category subject to their seniority vis-à-vis the
other suitable candidates - It cannot be said that a candidate
who obtains (x + 10) marks is more meritorious or more suitable
than those candidates who obtain 'x' or (x + 5) marks in the
suitability test - Every candidate who scores higher than or equal
to 'x' marks in the suitability test is considered equally suitable
and equally meritorious for the purpose of 65% promotional
category. [Para 129]
Gujarat State Judicial Service Rules, 2005 - 'Merit-cumSeniority' in context of:
Held: The term 'Merit-cum-Seniority' in context of 2005 Rules
implies that both merit and seniority would be considered in the
promotion of a candidate, with merit being determined on the basis
of a suitability test - The exact modalities of how merit and seniority
are to be apportioned is a legislative function and is to be performed
keeping in mind the unique requirements and circumstances of
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the organization - In the instant case, there is no fault with the
promotion process adopted by the High Court of Gujarat as the
same fulfils the twin requirements stipulated in All India Judges'
Association (3) 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 - The four components of the Suitability
Test as prescribed under the recruitment notice dated 12.04.2022
comprehensively evaluate (i) the legal knowledge including
knowledge of the case law through the objective MCQ - based
written test AND (ii) the continued efficiency by evaluation of the
ACRs, average disposal and past judgments of the concerned
judicial officer. [Paras 132, 141(D), 141(E)]
Gujarat State Judicial Service Rules, 2005 - Suggestions to
make the suitability test more meaningful:
Held: The High Court of Gujarat is proposed to amend its Rules
appropriately in line with the Uttar Pradesh Higher Judicial Service
Rules, 1975 where the recruitment process has been elaboratively
laid down - The minimum standard to be objectively assessed
by way of a suitability test should be made more efficacious and
productive - The Court suggests the following: (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]
Service Law - Gujarat State Judicial Service Rules, 2005 -
Suitability of each candidate should be tested on their own
merit:
Held: What has been conveyed by this Court in All India Judges'
Association (3) 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
[2024] 5 S.C.R.
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High Court of Gujarat & Ors.
words, what is stipulated is the determination of suitability of the
candidates and assessment of their continued efficiency with
adequate knowledge of case law. [Para 141A]
Service Law - Gujarat State Judicial Service Rules, 2005 -
Promotion - 65% promotional quota - Suitability test -
Requisite marks - Merit list:
Held: For the 65% promotional quota this Court in All India Judges'
Association (3) 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 - However, it is clarified 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.
[Paras 141B, 141C]
Service Law - Gujarat State Judicial Service Rules, 2005 -
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:
Held: This Court is of the view that if the contention of the petitioners
were to be accepted then it would completely obliterate the fine
distinction between the two categories of promotion in the cadre
of District & Sessions Judge by way of 65% promotion on the
basis of 'Merit-cum-Seniority' and 10% promotion strictly on the
basis of merit - In other words, the 65% quota for promotion will
assume the character of the 10% quota for promotion by way of a
departmental competitive examination which is distinct in its nature
since the latter is strictly based on merit. [Para 141F]
Service Law - Gujarat State Judicial Service Rules, 2005 -
Whether promotion of Civil Judges (Senior Division) to the
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cadre of District Judges in accordance with Rule 5(1) of the 2005
Rules and the Recruitment Notice dated 12.04.2022 issued by
the High Court of Gujarat is contrary to the principle of 'Meritcum-Seniority' as laid down in All India Judges' Association (3):
Held: There was no fault with the 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)
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 - The four components of the Suitability Test as
prescribed under the recruitment notice dated 12.04.2022
comprehensively evaluate (i) the legal knowledge including
knowledge of the case law through the objective MCQ-based
written test AND (ii) the continued efficiency by evaluation of the
ACRs, average disposal and past judgments of the concerned
judicial officer - The impugned final 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. [Paras 141D, 141E, 143]
Case Law Cited
All India Judges' Association (3) v. Union of India & Ors. [2002]
2 SCR 712 : (2002) 4 SCC 247; Mohammed Ishaq v. S.
Kazam Pasha & Anr. [2009] 7 SCR 1098 : (2009) 12 SCC 748;
Maharashtra State Judicial Service Assn. & Ors. v. High Court
of Judicature at Bombay & Ors. [2002] 1 SCR 1125 : (2002) 3
SCC 244; Malik Mazhar Sultan & Anr. (1) v. U.P. Public Service
Commission [2023] 12 SCR 682 : (2006) 9 SCC 507; All India
Judges' Association (4) v. Union of India (2010) 15 SCC 170; Malik
Mazhar Sultan & Anr. (3) v. U.P. Public Service Commission &
Ors. (2009) 17 SCC 530; State of Kerala & Anr. v. N.M. Thomas &
Ors. [1976] 1 SCR 906 : (1976) 2 SCC 310; Jagathigowda, C.N.
& Ors. v. Chairman, Cauvery Gramina Bank & Ors. [1996] Suppl.
4 SCR 190 : (1996) 9 SCC 677; Rajendra Kumar Srivastava &
Ors. v. Samyut Kshetriya Gramin Bank & Ors. [2009] 15 SCR
936 : (2010) 1 SCC 335; B.V. Sivaiah & Ors. v. K. Addankl Babu
& Ors. [1998] 3 SCR 782 : (1998) 6 SCC 720; K. Samantaray v.
National Insurance Co. Ltd. [2003] Suppl. 3 SCR 669 : (2004) 9
SCC 286; Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya
Gramin Bank & Ors. [2006] Supp. 8 SCR 760 : (2006) 12 SCC
574; Shriram Tomar & Anr. v. Praveen Kumar Jaggi & Ors. [2019]
[2024] 5 S.C.R.
1081
Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.
6 SCR 590 : (2019) 5 SCC 736; Madan Mohan Choudhary v.
State of Bihar [1999] 1 SCR 596 : (1999) 3 SCC 396; High Court
of Judicature for Rajasthan v. P.P. Singh & Anr. [2003] 1 SCR
593 : (2003) 4 SCC 239 - relied on.
Sujata Kohli v. Registrar General, High Court of Delhi and Ors.
[2020] 9 SCR 361 : (2020) 14 SCC 58; Dr. Kavita Kamboj v. High
Court of Punjab and Haryana & Ors. [2024] 2 SCR 1136 : (2024)
SCC OnLine SC 254; Rupa Rani Rakshit & Ors. v. Jharkhand
Gramin Bank [2009] 15 SCR 1133 : (2010) 1 SCC 345; All
India Judges' Association (1) v. Union of India [1991] Suppl.
2 SCR 206 : (1992) 1 SCC 119; All India Judges' Association
(2) v. Union of India [1993] Supp. 1 SCR 749 : (1993) 4 SCC
288; High Court of Calcutta v. Amal Kumar Roy [1963] 1 SCR
437; K.K. Parmar v. High Court of Gujarat [2006] Supp. 2 SCR
565 : (2006) 5 SCC 789; Kartar Kaur v. State (1967) SLR 34;
State of Mysore v. Syed Mahmood [1968] 3 SCR 363; Central
Council for Research in Ayurveda and Siddha and Anr. v. Dr.
K. Santhakumari [2001] 3 SCR 519 : (2001) 5 SCC 60; Union
of India and Ors. v. Lt. Gen. Rajendra Singh Kadyan & Anr.
[2000] Supp. 1 SCR 722 : (2000) 6 SCC 698; State of U.P. v.
Jalal Uddin & Ors. [2004] Supp. 5 SCR 92 : (2005) 1 SCC 169;
Haryana State Electronics Development Corporation Ltd. & Ors.
v. Seema Sharma & Ors. [2009] 7 SCR 662 : (2009) 7 SCC 311;
Palure Bhaskar Rao & Ors. v. P. Ramaseshaiah & Ors. [2017] 3
SCR 226 : (2017) 5 SCC 783; State of Mysore v. C. R. Seshadri
& Ors. [1974] 3 SCR 87 : AIR 1974 SC 460; Ambica Quarry
Works v. State of Gujarat [1987] 1 SCR 562 : (1987) 1 SCC
213; Bharat Petroleum Corporation Ltd. v. NR Vairamani [2004]
Supp. 4 SCR 923 : (2004) 8 SCC 579; Municipal Corporation
Delhi v. Mohd Yasin [1983] 2 SCR 999 : (1983) 3 SCC 229;
Thampanoor Ravi v. Charupara Ravi [1999] Supp. 2 SCR 419 :
(1999) 8 SCC 74 - referred to.
R. v. Inland Revenue Commissioners, ex parte M.F.K Underwriting
Agents Ltd. [1990] 1 WLR 1545 - referred to.
Books and Periodicals Cited
Shetty Commission on Judicial Reforms; First Law Commission
of India (14th Report in the year 1958); Henry Campbell Black,
Black's Law Dictionary, p.1528 (6 th Edn., 1968); H. Gerth and
C.W. Mills, From Max Weber: Essays in Sociology, 199, 202
(Oxford University Press, New York, 1958); H. Eliot Kaplan, The
1082
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Law of Civil Services (New York University Press, Mathew Bender
& Company, New York, 1958); Elman, B.A., Political, social, and
cultural reproduction via civil service examinations in late imperial
China, 50(1) Journal of Asian Studies, pp.7-28 (1991); Jenifer Hart,
The genesis of the Northcote - Trevelyan report, in Studies in the
growth of nineteenth century government pp. 63-81 (Ed. Gillian
Sutherland, Routledge & Kegan Paul, London, 1972); Kaplan,
N.I., A changing culture of merit: French competitive examinations
and the politics of selection, pp. 1750-1820 (Columbia University
Press, 1999); The Macaulay Committee's Report on the Indian
Civil Service 1854; History of the Commission, Union Public
Service Commission; S. REP. No. 969; recited from O'Rourke,
1993, p.344 - referred to.
List of Acts
Constitution of India; Gujarat State Judicial Service Rules, 2005.
List of Keywords
Merit; Seniority; Promotion; Promotion process; Article 32 of the
Constitution; Article 226 of the Constitution; Efficacious alternative
remedy; Rule of self-restraint; Interpretation of rules; Issue having
far-reaching effect; Discretion of the Court; Legislative History and
Scheme of the Gujarat State Judicial Service Rules, 2005; Rule 5(1)
of the Gujarat State Judicial Service Rules, 2005; Rule 5(3) of the
Gujarat State Judicial Service Rules, 2005; Modes of recruitment;
Principle of Merit-cum-Seniority; Principle of Seniority-cum-Merit;
Article 235 of the Constitution; High Court as a custodian of the
District Judiciary; Twin requirements stipulated in All India Judges'
Association (3); Suitability test; Basis of suitability test; Objective
assessment of legal knowledge; Evaluation of the continued
efficiency; Enhancing the minimum specified threshold of marks in
suitability test; Interview or Viva Voce in suitability test; Evaluation
of judgments delivered by the judicial officer in suitability test;
Marks for seniority at the stage of suitability test; 65% promotion
on the basis of 'Merit-cum-Seniority'; 10% promotion strictly on
the basis of merit; Statutory rules governing the promotion or any
promotion policy.
Case Arising From
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 432 of 2023
(Under Article 32 of The Constitution of India)
[2024] 5 S.C.R.
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High Court of Gujarat & Ors.
Appearances for Parties
R. Basant, P.S. Patwalia, Sr. Advs., Vivek Jain, Ms. Suchitra Kumbhat,
Akshay Sahay, Kishan Chakawala, Rajat Jain, Sadiq Noor, Mehul
Prasad, Purvish Jitendra Malkan, Advs. for the Petitioners.
V. Giri, Dushyant Dave, Shyam Divan, Sr. Advs., Ms. Vishakha,
Ms. Vishwaja Rao, Shashank Shekhar Singh, Akshat Malpani, Ms.
Ayushi Gaur, Sandeep Kumar Jha, Ms. Mayuri Raghuvanshi, Vyom
Raghuvanshi, Ms. Akanksha Rathore, Puneet Jain, Ms. Deepanwita
Priyanka, Jayesh Gaurav, Monarch K. Pandya, Ishwar Chandra
Roy, Ms. Diksha Ojha, Ranjan Nikhil Dharnidhar, Ms. Nidhi Khanna,
Sudipto Sircar, Rajeev Kumar Bansal, Madan Lal Daga, Parvinder,
Shekher Kaushik, Ganesh Barowalia, Vidya Sagar, Rajesh Sonthalia,
Kamal Mohan Gupta, Aditya Choksi, Arpit Gupta, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided in the
following parts: -
INDEX*
A.
FACTUAL MATRIX .................................................................
3
i. Method of Promotion followed by the High Court of
Gujarat ............................................................................... 10
B.
REFERENCE ORDER .......................................................... 12
C.
SUBMISSIONS ON BEHALF OF THE PETITIONERS ..........
14
D.
SUBMISSIONS ON BEHALF OF THE HIGH COURT ..........
16
E.
SUBMISSIONS ON BEHALF OF THE PROMOTED
CANDIDATES ......................................................................... 17
F.
POINTS FOR DETERMINATION ...........................................
20
G.
ANALYSIS ..............................................................................
20
i. Maintainability of the present Writ Petition under
Article 32 ........................................................................... 20
* Ed. Note: Pagination as per the original Judgment.
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ii. The Legislative History and Scheme of the Gujarat
State Judicial Service Rules, 2005 ............................... 23
a. Shetty Commission on Judicial Reforms and the
Decision of this Court in All India Judges' Association
(3) ................................................................................ 23
b. Relevant Statutory Provisions of the Gujarat State
Judicial Service Rules, 2005 ...................................... 34
iii. Evolution of the Principles of 'Merit-cum-Seniority'
and 'Seniority-cum- Merit' in Service Jurisprudence
38
a. Concept of Promotion: The meaning and origin of
seniority and merit as parameters .............................. 38
b. Principle of 'Merit-cum-Seniority' and 'Seniority-cumMerit' in Service Jurisprudence ................................... 44
c. 'Hybrid-Dynamic Mode of Promotion' in Service
Jurisprudence ...............................................................
56
d. High Court as a custodian of the District Judiciary
under Article 235 of the Constitution .......................... 64
iv.
What is 'Merit-cum-Seniority' for the purpose of
Promotion to the cadre of District & Sessions Judges? 67
a. Intention behind the decision in All India Judges'
Association (3) .............................................................. 67
H.
FEW SUGGESTIONS TO MAKE THE SUITABILITY TEST
MORE MEANINGFUL ............................................................ 80
I.
CONCLUSION ........................................................................ 81
1.
Two judicial officers of the rank of Civil Judge (Senior Division)
governed by the Gujarat State Judicial Service Rules, 2005 (for
short, the "2005 Rules") have invoked the jurisdiction of this Court
under Article 32 of the Constitution. Their grievance against the
High Court of Gujarat is that it 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-cum-Seniority'. In other words, it is 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
[2024] 5 S.C.R.
1085
Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.
the final Select List strictly in accordance with the seniority of the
candidates. This according to the petitioners is nothing but 'Senioritycum-Merit'.
A.
FACTUAL MATRIX
2.
The High Court of Gujarat issued an advertisement/recruitment notice
dated 12.04.2022 notifying a total of 68 vacancies in the cadre of
District Judges for promotion of Civil Judges (Senior Division) against
the 65% quota on the basis of 'Merit-cum-Seniority' and passing a
Suitability Test as envisaged under Rule 5(1)(I) of the 2005 Rules.
The said advertisement/recruitment notice reads as under: -
"HIGH COURT OF GUJARAT AT SOLA,
AHMEDABAD
Website: www.gujarathighcourt.nic.in AND https://hcojas.gujarat.gov.in
NO.RC/1250/2022
RECRUITMENT NOTICE - DISTRICT JUDGE (65%)
PROMOTION TO THE CADRE OF DISTRICT JUDGE (65%)
FROM AMONGST THE SENIOR CIVIL JUDGES ON THE
BASIS OF PRINCIPLE OF MERIT-CUM-SENIORITY AND
PASSING A SUITABILITY TEST.
1.
VACANCIES AND PAY-SCALE :
(i)
In view of the guidelines of the Hon'ble Supreme Court in
the case of Malik Mazhar Sultan & Anr. Vs. UP Public
Service Commission & Ors. and The Gujarat State
Judicial Service Rules, 2005, as amended from time to
time, The High Court of Gujarat has decided to fill up 68
(53+15) vacancies in the cadre of District Judges (65%)
by promotion from amongst us the Senior Civil Judges
(including ad-hoc Additional District Judges) having not
less than two years of qualifying service in that cadre
as on 25/03/2022, in the pay-scale of Rs. 51650-63260
plus Allowances as admissible under the Rules.
*15 unfilled vacancies of 10% quota of year-2020
are to be filled up by regular promotion in view of
1086
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Digital Supreme Court Reports
Judgment dated 09.12.2021 of the High Court of
Gujarat (Coram: - Honourable Ms. Justice Sonia
Gokani and Honourable Mr. Justice Rajendra M.
Sareen delivered in SCA/7915/2020 with SCA/13631
& 13458/2020 and by operation of proviso to Rule
5(1)(ii) of the Gujarat State Judicial Service Rules,
2005 amended by Notification dated 23.06.2011.
(ii)
The High Court reserves its right to alter the number of
vacancies.
(iii) The List showing eligible Senior Civil Judges (including
ad-hoc Additional District Judges) included in the zone of
consideration for being considered for promotion to the
cadre of District Judges (65%) is placed on the High Court
website and HC-OJAS Portal along with this Notice.
2.
SCHEME FOR PROMOTION :
Following are the Four Components for assessing the suitability
of a Judicial Officer for promotion.
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
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
*Due to unprecedented time of COVID-19 pandemic in Year
2020 & 2021, the Subordinate Courts in the state were not
functioning regularly. Hence, this time round, the Hon'ble
Committee has decided for the instant Promotion Process to
call upon the requisite Four Judgments rendered by the Officer
concerned during the period between 01/01/2020 to 31/12/2021.
However, this should not be treated as a precedent in upcoming
Promotion Process.
[2024] 5 S.C.R.
1087
Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.
3.
Written Test (Objective Type - MCQs) :
(i)
The Written Test (Objective Type - MCQs) shall consist
of 01 (One) Paper of 100 Marks of duration of 02 Hours
consisting of Objective Type Multiple Choice Questions
(MCQs) each of 01 Mark. There will be no Negative
marking system. The subject would be as under:
Sr. No
Subject
Marks
1.
Legal Knowledge [Detailed Syllabus
attached herewith at Annexure-'A']
50
2.
Administrative Knowledge [GCS Rules
2002, Civil Manual, Criminal Manual, etc.]
25
3.
General Knowledge & Aptitude Test [Test
of Reasoning, Numerical & Mental Ability
& Psychological Test, etc.]
25
(ii)
The Written Test (Objective Type - MCQs) shall be
conducted on OMR Sheet* or by any other mode that
would be decided by the High Court later on.
*The OMR Sheets of the Written Test (Objective Type -
MCQs) will be assessed/evaluated by the Computer as per
entries made on OMR Sheet. As the evaluation is being
done on the Computer by Scanning, there is no human
intervention and hence, queries relating to rechecking of
the OMR Sheets, subsequent to the Written Test (Objective
Type - MCQs), will not be entertained by the High Court
(iii) The Language of the Question Paper will be English.
(iv) Out of the abovementioned Four Components of Suitability
Test, the Written Test (Objective Type - MCQs) will be
conducted first. Nonetheless mere passing of Written Test
(Objective Type - MCQs) by the Judicial Officers would
not give him/her right of having secured the position in
the Select List. It will be subject to passing of other 03
(Three) components as well.
(v)
ACR, Disposal and Judgments of only those Judicial
Officers who will secure minimum 40% Marks in Written
Test (Objective Type - MCQs), will be called for after the
declaration of the result of Written Test (Objective Type -
MCQs).
1088
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4.
ELIGIBILITY FOR PROMOTION :
The Judicial Officer, who obtains minimum 40% Marks in each
Component and minimum 50% Marks in aggregate in the Grand
Total of all Four Components, shall be eligible for being included
in the Select List for promotion.
5.
GENERAL INSTRUCTIONS :
(i)
The date and venue of the Written Test (Objective Type -
MCQs) will be declared by the High Court in due course.
(ii)
The eligible Judicial Officers may download their
E-call letter from the High Court websites viz. www.
gujarathighcourt.nic.in and https://hc-ojas.gujarat.gov.in,
as and when the same is made available by the High
Court on the aforesaid websites.
(iii) The Judicial Officer attending the Written Test (Objective
Type - MCQs) may be treated as on duty and may be
admissible for TA/DA as applicable.
(iv) Result of the Written Test (Objective Type - MCQs) will
be made available on the High Court websites and/or by
any other mode that may be decided by the High Court.
(v)
The Marks of Written Test (Objective Type - MCQs) would
be communicated to all the Judicial Officers, whereas,
the Marks of other 03 Components along-with the Total
Marks obtained by the concerned, would be provided
to only those who qualify in the Written Test (Objective
Type - MCQs).
Such Marks shall be communicated by providing a link to a
webpage on the HC-OJAS Portal with individual password
(OTP - One Time Password) via SMS on his/her Registered
Mobile Number, after the conclusion of the Selection Process
High Court of Gujarat,

Sola, Ahmedabad - 380 060.
Date: 12/04/2022
Sd/-

Registrar
(Recruitment and Finance)
[2024] 5 S.C.R.
1089
Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.
Syllabus For the LEGAL KNOWLEDGE of the Written Test
(Objective Type - MCQs) :
(a) ͢ The Constitution of India
 ͢
The Code of Civil Procedure, 1908,
 ͢
The Transfer of Property Act, 1882,
 ͢
The Specific Relief Act, 1963,
 ͢
The Indian Partnership Act, 1932,
 ͢
The Indian Contract Act, 1872,
 ͢
The Sale of Goods Act, 1930,
 ͢
The Limitation Act, 1963,
 ͢
The Arbitration and Conciliation Act, 1996,
 ͢
The Motor Vehicles Act, 1988,
 ͢
The Commercial Courts Act, 2015
 ͢
The Family Courts Act, 1984,
 ͢
The Environment (Protection) Act, 1986,
 ͢
The Wild Life (Protection) Act, 1972,
 ͢
The Indian Penal Code, 1860,
 ͢
The Code of Criminal Procedure, 1973,
 ͢
The Indian Evidence Act, 1872,
 ͢
The Narcotic Drugs & Psychotropic Substances
Act, 1985,
 ͢
The Negotiable Instruments Act, 1881,
 ͢
The Protection of Children from Sexual Offence
Act, 2012,
 ͢
The Juvenile Justices (Care & Protection of
Children) Act, 2015,
 ͢
The Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989,
 ͢
The Prevention of Corruption Act, 1988
1090
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 ͢
The Electricity Act, 2003,
 ͢
The Protection of Women from Domestic
Violence Act, 2005
 ͢
The Immoral Traffic (Prevention) Act, 1956
 ͢
The Information Technology Act, 2000
 ͢
The Indecent Representation of Women
(Prohibition) Act, 1986
(b) Legal Maxims
(c)
Medical Jurisprudence
(d) Jurisprudence and Legal Phraseology"
3.
The High Court along with the aforesaid advertisement/recruitment
notice, also issued a list of 205 judicial officers in the cadre of Civil
Judge (Senior Division) i.e., the feeder cadre, falling under the 'Zone
of Consideration' for the aforesaid purpose of filling up the vacancies
in the cadre of District Judges as against 65% quota.
4.
The High Court prepared the list of 205 candidates falling within
the zone of consideration by including the senior-most Civil Judges
(Senior Division) not exceeding three-times the notified vacancies.
In other words, the zone of consideration only included the 205
senior-most Civil Judges (Senior Division).
5.
As per the advertisement/recruitment notice dated 12.04.2022, the
suitability of the aforesaid 205 candidates falling within the zone of
consideration, for the purpose of promotion, was to be assessed on
the basis of four components which are being reproduced hereunder: -
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
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
[2024] 5 S.C.R.
1091
Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.
6.
The aforesaid advertisement/recruitment notice dated 12.04.2022
further stipulated that all those judicial officers who obtain a minimum
40% marks in each of the abovementioned component and a minimum
aggregate of 50% marks in all four components shall be eligible for
being included in the Select List for promotion.
7.
Pursuant to the aforesaid, the Written Test (Objective Type - MCQs)
was conducted by the High Court and out of 205 candidates, a total
of 175 judicial officers cleared the written test i.e., all those who
were able to secure a minimum of 40% marks. Thereafter, the High
Court called for the month-wise list of the judgments disposed of
and the annual confidential reports (ACRs) of all 175 candidates
who qualified.
8.
After the evaluation of the ACRs, judgments and disposal rates, a total
of 149 judicial officers were found to be eligible for promotion as they
had secured a minimum 40% marks in each of the abovementioned
component and a minimum aggregate of 50% marks in all the four
components of the suitability test.
9.
The High Court thereafter proceeded to prepare the final Select List
dated 10.03.2023 wherein the seniormost 68 candidates amongst
the aforementioned 149 eligible candidates were given promotion
to the post of District Judge.
10. In such circumstances referred to above, the petitioners are here
before this Court with the present petition under Article 32 of the
Constitution.
i.
Method of Promotion followed by the High Court of Gujarat.
11. For the better adjudication of the issues involved in the case at
hand, it would be necessary to delineate the step-wise process of
promotion undertaken by the High Court of Gujarat for the purpose
of preparing the final Select List.
12. The process, as explained by the High Court in its counter affidavit
and additional affidavit is as under: -
1.
Total number of Civil Judges (Senior Division) in
Gujarat.
 444
2.
Civil Judges (Senior Division) who fulfilled the eligibility
criteria of a minimum of two-years of qualifying service.
 417
1092
[2024] 5 S.C.R.
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3.
Senior-most of the Civil Judges (Senior Division) falling
under the zone of consideration as per 1:3 ratio.
 205
4.
Civil Judges (Senior Division) who appeared for the
Suitability Test (MCQ's with no negative marking).
(Seven candidates chose not to appear for the
suitability test)
 198
5.
Civil Judges (Senior Division) who secured 40% marks
in the Suitability Test (MCQs with no negative marking).
 175
6.
Total number of Civil Judges (Senior Division) who
secured total of 50% marks and a minimum 40%
marks in all four components being the Written Test,
evaluation of ACRs, assessment of average disposal
and evaluation of Judgments.
 149
7.
Select List as per the notified vacancy prepared on
the basis of seniority.
 68
B.
REFERENCE ORDER
13. The present writ petition was earlier heard by a two-Judge Bench
of this Court wherein it was prima facie observed that in All India
Judges' Association (3) v. Union of India & Ors. reported in (2002)
4 SCC 247 while emphasizing on the need for merit-based criteria
for promotion in the cadre of Higher Judicial Service, this Court had
held that the promotion to the post of District Judge shall be on the
basis of 'Merit-cum-Seniority'.
14. This Court further observed that the principle of 'Merit-cum-Seniority'
lays greater emphasis on merit, and seniority plays a less significant
role. Therefore, seniority should be considered only when merit and
ability are equal.
15. This Court prima facie opined that the final Select List dated
10.03.2023 could be said to be in contravention of the principle of
'Merit-cum-Seniority' as envisaged in the rules and the decision in
All India Judges' Association (3) (supra). However, in view of the
importance of the matter and the observations made in All India
Judges' Association (3) (supra), the matter was referred to the
Bench of Hon'ble the Chief Justice of India. The relevant observations
read as under: -
[2024] 5 S.C.R.
1093
Ravikumar Dhansukhlal Maheta & Anr.