# SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT OF DELHI & ORS

- **Citation:** [2020] 9 S.C.R. 361
- **Court:** Supreme Court of India
- **Decided:** 2020-04-24
- **Case number:** Civil Appeal No. 2374 of 2020
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sujata-kohli-v-registrar-general-high-court-of-delhi-ors-34871
- **Pages:** 51

## Headnote

Delhi Higher Judicial Service Rules, 1970: r.27 - Challenge
to r.27 as being ultravires particularly with reference to decision of
Supreme Court in All India Judges Association - High Court rejected
the challenge - Held: High Court rightly rejected challenge to r.27
because this residuary clause in the Rules of 1970 does not offend
the law declared in All India Judges Association in any manner - This
residuary clause is not of equating the judicial officers with the
executive officers but only provides that in regard to the matters for
which no provision or insufficient provision has been made in the
Rules of 1970, the relevant rules, directions or orders as applicable
to IAS shall regulate the conditions of service of the officers of
DHJS - A perusal of the other provisions in the Rules of 1970 makes
it clear that reference to the service conditions of the members of
IAS is not an anathema to these rules and, on the contrary, wherever
necessary, the applicable rules, orders or directions concerning
the members of IAS do govern the service conditions of the judicial
officers too - High Court establishment provided by way of the
impugned resolutions norms for promotion while taking cue from
the norms applicable to the members of IAS in the equivalent pay
scale - Providing for such norms does not in any manner stand at
conflict with the principles laid down in the case of All India Judges
Association.
Delhi Higher Judicial Service Rules, 1970: Merit-cumseniority - Criteria for promotion to the posts of District and Sessions
Judges - Implementation of revised criteria in phased manner -
Challenged - Held: High Court, in its Full Court meeting dated
28.04.2009 had adopted a resolution to the effect that, for being
selected/promoted as District and Sessions Judge, a candidate of
DHJS ought to fulfil the criteria of possessing at least two 'A' (very
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good) and three 'B+' (good) ACR gradings for the preceding five
years from the date of consideration for such appointment -
Thereafter, in its Full Court meeting dated 15.01.2010, the High
Court proceeded to modify the said criteria to the effect that a
candidate of DHJS ought to possess the minimum 'A' (very good)
grading in ACRs of each of the five years under consideration - As
against resolution dated 15.01.2010, the High Court received certain
representations, including those from the Associations of the Officers
and, upon consideration of these representations, a committee
comprising of four Judges recommended for implementation of the
revised criteria in a phased manner; and such recommendations of
the committee were accepted by the Full Court of the High Court -
In the given fact situation and the methodology of gradual
implementation adopted by the High Court, the suggestion on the
part of the appellant that there had been any so-called retrospective
operation of revised criteria was totally bereft of substance - In
view of the duties and responsibilities attached with the higher posts
of District and Sessions Judge and Principal Judge, Family Court,
the High Court cannot be faulted in providing for a reasonable
method of assessment of the requisite merit in the manner that a
candidate in the zone of consideration ought to be possessing
minimum five "very good" ACRs in the preceding five years from
the base year - In fact, the criteria so adopted had been the identical
one as provided for the members of IAS in the equivalent pay scales
- High Court did not change the eligibility criteria for appointment
to the post of District and Session Judge or Principal Judge, Family
Court but merely evolved a selection criteria for evaluation of eligible
candidates - There was no denial of a pre-existing right of the
appellant, who entered the zone of consideration only in the year
2014-15 whereas, the criteria in question was implemented for
appointments made from the year 2012.
Delhi Higher Judicial Serv

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SUJATA KOHLI
v.
REGISTRAR GENERAL, HIGH COURT
OF DELHI & ORS.
(Civil Appeal No. 2374 of 2020)
APRIL 24, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Delhi Higher Judicial Service Rules, 1970: r.27 - Challenge
to r.27 as being ultravires particularly with reference to decision of
Supreme Court in All India Judges Association - High Court rejected
the challenge - Held: High Court rightly rejected challenge to r.27
because this residuary clause in the Rules of 1970 does not offend
the law declared in All India Judges Association in any manner - This
residuary clause is not of equating the judicial officers with the
executive officers but only provides that in regard to the matters for
which no provision or insufficient provision has been made in the
Rules of 1970, the relevant rules, directions or orders as applicable
to IAS shall regulate the conditions of service of the officers of
DHJS - A perusal of the other provisions in the Rules of 1970 makes
it clear that reference to the service conditions of the members of
IAS is not an anathema to these rules and, on the contrary, wherever
necessary, the applicable rules, orders or directions concerning
the members of IAS do govern the service conditions of the judicial
officers too - High Court establishment provided by way of the
impugned resolutions norms for promotion while taking cue from
the norms applicable to the members of IAS in the equivalent pay
scale - Providing for such norms does not in any manner stand at
conflict with the principles laid down in the case of All India Judges
Association.
Delhi Higher Judicial Service Rules, 1970: Merit-cumseniority - Criteria for promotion to the posts of District and Sessions
Judges - Implementation of revised criteria in phased manner -
Challenged - Held: High Court, in its Full Court meeting dated
28.04.2009 had adopted a resolution to the effect that, for being
selected/promoted as District and Sessions Judge, a candidate of
DHJS ought to fulfil the criteria of possessing at least two 'A' (very
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good) and three 'B+' (good) ACR gradings for the preceding five
years from the date of consideration for such appointment -
Thereafter, in its Full Court meeting dated 15.01.2010, the High
Court proceeded to modify the said criteria to the effect that a
candidate of DHJS ought to possess the minimum 'A' (very good)
grading in ACRs of each of the five years under consideration - As
against resolution dated 15.01.2010, the High Court received certain
representations, including those from the Associations of the Officers
and, upon consideration of these representations, a committee
comprising of four Judges recommended for implementation of the
revised criteria in a phased manner; and such recommendations of
the committee were accepted by the Full Court of the High Court -
In the given fact situation and the methodology of gradual
implementation adopted by the High Court, the suggestion on the
part of the appellant that there had been any so-called retrospective
operation of revised criteria was totally bereft of substance - In
view of the duties and responsibilities attached with the higher posts
of District and Sessions Judge and Principal Judge, Family Court,
the High Court cannot be faulted in providing for a reasonable
method of assessment of the requisite merit in the manner that a
candidate in the zone of consideration ought to be possessing
minimum five "very good" ACRs in the preceding five years from
the base year - In fact, the criteria so adopted had been the identical
one as provided for the members of IAS in the equivalent pay scales
- High Court did not change the eligibility criteria for appointment
to the post of District and Session Judge or Principal Judge, Family
Court but merely evolved a selection criteria for evaluation of eligible
candidates - There was no denial of a pre-existing right of the
appellant, who entered the zone of consideration only in the year
2014-15 whereas, the criteria in question was implemented for
appointments made from the year 2012.
Delhi Higher Judicial Service Rules, 1970: r.27 - Whether
the appellant was denied fair and reasonable consideration of her
case for promotion to the posts of District and Sessions Judge/
Principal judge, Family Court by operation of criteria laid down in
the impugned resolutions - Held: Appellant was a member of DHJS
- By virtue of r.27, she would be deemed to be having constructive
knowledge that the criteria to be adopted for upward progression
would be that as applicable for the equivalent posts in IAS - When
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it had consistently been provided that for promotion to the scale of
Rs. 18,400-22,400 and above, the prescribed benchmark of "very
good" ought to be met in all ACRs of five years under consideration;
and when the higher posts of District and Sessions Judge and
Principal Judge, Family Court do carry much higher scales of pay,
neither the High Court could be faulted in applying the same
benchmark for such higher posts in DHJS nor the appellant could
feign ignorance about the same - Apart from that in the 1970 Rules,
the entry level promotion to the post in DHJS is on the basis of
merit-cum-seniority or merit - In the light of such requirements, any
upward progression in DHJS could only be on the higher
requirements of merit and in any case, such requirements cannot be
lesser than the requirements at entry level - Appellant was conscious
of the fact that for upward movement in DHJS, merit would acquire
primacy; and that seniority alone was not going to be decisive for
promotion to the higher posts of District and Sessions Judge and
the Principal Judge, Family Court - Appellant was also conscious
of the position that while making any such promotion, the assessment
would be based on the competitive merit of the candidates in the
zone of consideration; and if any candidate in such zone of
consideration was possessed of better merit than herself, he would
be preferred for promotion - Thus, appellant was not denied fair
and reasonable consideration of her case for promotion to the posts
of District and Sessions Judge/ Principal Judge, Family Court by
operation of the criteria laid down in the impugned resolutions.
Judicial Officer - ACR grading - Whether the appellant
suffered any prejudice in the matter of ACR grading - It is not in
dispute that the appellant was informed of every grading made in
her ACR - She was awarded 'B+' (good) in the years 2010, 2011,
2012 and 2013; and 'A' (very good) in the year 2014 - Material
placed on record showed that the appellant never challenged her
gradings for any year except that for the year 2011 when she
requested for upgradation of her ACR grading from 'B' to 'B+' or
'A'; and the High Court, acceding to her request, upgraded her
ACR to 'B+' - Impugned resolution dated 27.01.2011 came to be
adopted after due consideration of the representations made to the
High Court and in conformity with the criteria provided by the
Government of India for the posts equivalent in scale to that of
District Judges - However, the criteria of having 'A' (very good)
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grading in the preceding five years was implemented in a phased
manner - Appellant, not being oblivious of the position that for any
upward progression in DHJS, comparative merit would be a key
factor, chose to remain contented with her grading at 'B+' in the
relevant years and did not question the same at the appropriate
time and in appropriate manner - That being the position, the
appellant cannot be acceded the right to contend now and at this
stage that the ACR gradings have operated adverse to her - While
raising grievance with regard to the impact and effect of ACR
gradings, the appellant appears to have missed out the fundamental
factor that for the promotions in question, an individual's minimum
merit, by itself, was not going to be decisive; but the relevant factor
was going to be comparative merit of the persons in the zone of
consideration - That being the position, when the persons in zone
of consideration possessing 'A' (very good) grading have been
promoted in preference to her, the appellant cannot raise a grievance
about her gradings after such promotions - Appellant was not able
to establish that she had suffered any prejudice in the matter of
ACR gradings.
Dismissing the appeal, the Court
HELD: 1.1 The criteria in question, for promotion to the
post of District and Sessions Judge and equivalent, had been
evolved and operated by the High Court in the purported exercise
of its powers under the Delhi Higher Judicial Service Rules, 1970.
The matter in the present appeal relates to promotion to the
posts of District and Sessions Judge or Principal Judge, Family
Court within the cadre of DHJS. Apparently, no separate provision
is found in the Rules of 1970 as regards such upward progression
within the cadre and obviously, for such a matter, the residuary
provision as contained in Rule 27 comes into operation by virtue
of which, the directions or orders for the time being in force and
applicable to the officers of comparable status in IAS would apply.
[Paras 15.2, 15.3][396-H; 397-A; 398-D-E]
1.2 The appellant had attempted to question the said Rule
27 of the Rules of 1970 as being ultra vires, particularly with
reference to the decision of this Court in the case of All India
Judges Association. The High Court rightly rejected such a
challenge to Rule 27 because this residuary clause in the Rules
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of 1970 did not appear offending the law declared by this Court in
any manner. This residuary clause is not of equating the judicial
officers with the executive officers but only provides that in regard
to the matters for which no provision or insufficient provision
has been made in the Rules of 1970, the relevant rules, directions
or orders as applicable to IAS shall regulate the conditions of
service of the officers of DHJS. A perusal of the other provisions
in the Rules of 1970 makes it clear that reference to the service
conditions of the members of IAS is not an anathema to these
rules and, on the contrary, wherever necessary, the applicable
rules, orders or directions concerning the members of IAS do
govern the service conditions of the judicial officers too. [Para
15.3][398-E-H]
All India Judges Association v. Union of India: (1993)
4 SCC 288 : [1993] 1 Suppl. SCR 749 - referred to.
2.1 The striking feature of the Rules of 1970 is that even
at the entry level, the promotions are to be made either on meritcum-seniority basis or on merit basis. Further, grant of Selection
Grade and Super Time Scale is also on assessment of merit-cumseniority. In the given scheme of the Rules of 1970, it is difficult
to countenance any suggestion that in DHJS, merit could be
forsaken at any level or only seniority be given primacy in the
matter relating to upward progression to the higher posts of
District and Sessions Judge or Principal Judge, Family Court.
Rather, looking to the nature of posts, in every higher
progression, merit would play a major role and would, perforce,
acquire primacy. [Para 16][401-E-F]
2.2 As per the facts available on record, prior to the year
2008, there was only one sanctioned post of District Judge under
the Rules of 1970. Later on, the National Capital Territory of
Delhi came to be bifurcated into nine Civil Districts and in view
of such bifurcation, the strength of District and Sessions Judges
was increased to 11. This reorganisation and increase of strength
of the cadre of DHJS, obviously, led to the requirement of
providing the norms and criteria for promotion to the posts of
District and Sessions Judges and equivalent because no such
norms and criteria were in existence. In keeping with such
requirements, the High Court, in its Full Court meeting dated
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28.04.2009, adopted a resolution to the effect that, for the purpose
of being selected/promoted as District and Sessions Judge, a
candidate of DHJS ought to fulfil the criteria of possessing at
least two 'A' (very good) and three 'B+' (good) ACR gradings for
the preceding five years from the date of consideration for such
appointment. Thereafter, in its Full Court meeting dated
15.01.2010, the High Court proceeded to modify the aforesaid
criteria to the effect that for being promoted as District and
Sessions Judge, a candidate of DHJS ought to possess the
minimum 'A' (very good) grading in ACRs of each of the five
years under consideration. It had been the case of the respondent
High Court that such criteria were adopted as being equivalent
to the revised promotion criteria in the Indian Administrative
Services by virtue of the residuary provision contained in Rule
27. As against the aforesaid resolution dated 15.01.2010, the High
Court received certain representations, including those from the
Associations of the Officers and, upon consideration of these
representations, a committee comprising of four Judges, in its
report dated 08.10.2010, recommended for implementation of
the revised criteria in a phased manner; and such
recommendations of the committee were accepted by the Full
Court of the High Court on 27.01.2011. In this manner aforesaid,
the respondent High Court took the decision to implement the
revised criteria envisaged by the resolution dated 15.01.2010 in
a phased manner; and the requirements came to be provided
that for appointment to the post of District and Sessions Judge, a
candidate should, in the five years preceding the base year, carry
the ACR gradings as follows: (i) for the year 2009, at least two
'A' (very good) and the remaining three 'B+' (good); (ii) for the
year 2010, at least three 'A' (very good) and the remaining two
'B+' (good);(iii) for the year 2011, at least four 'A' (very good)
and the remaining one 'B+' (good); and (iv) for the year 2012 and
onwards, a minimum of five 'A' (very good). Further, the
Administrative Committee of the High Court, in its meeting dated
13.09.2013, resolved, inter alia, that the post of Principal Judge,
Family Court being equivalent to that of District and Sessions
Judge, the same criteria be also adopted for appointment of
Principal Judge, Family Court. [Para 17][401-H; 402-A-H; 403A-B]
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2.3 The views of the High Court in the impugned order
were correct that the no-norms position for upward progression
in DHJS, as existing prior to the year 2009, could not have been
continued with reorganisation of the District Courts and certain
norms, commensurate with the posts in question, were required
to be provided; and were accordingly provided with reference to
the prescriptions for the officers of IAS in the equivalent pay
scales. For the officers of such equivalent pay scales, the
requirement had been of five "very good" ACR gradings (i.e.,
'A' grading) for five years preceding the date of consideration for
higher positions. The High Court establishment had further been
reasonable in its approach when such threshold requirement of
five "very good" ACR gradings was not foisted on the officers
immediately and, in keeping with the position obtainable in the
past as also keeping in view the merit requirements, took a
considered decision that such criteria be implemented gradually
and started with the norms of two "very good" with three "good"
ACR gradings for the year 2009 and systematically enhanced the
norms. In the given fact situation and the methodology of gradual
implementation adopted by the High Court, the suggestion on
the part of the appellant that there had been any so-called
retrospective operation of revised criteria remains totally bereft
of substance and could only be rejected. [Paras 17.1, 17.2][403C-G]
3.1 The submissions on behalf of the appellant that she was
not made aware of such so-called revised criteria carry several
shortcomings of their own. The appellant joined DHJS in the year
2002. She was confirmed with effect from 25.11.2004. She was,
and would always be presumed to be, aware of all the requirements
of the Rules of 1970. Moreover, the appellant, a member of DHJS,
cannot suggest that she remained oblivious of the developments
about creation of nine Civil Districts in the year 2008 and increase
in the strength of District and Sessions Judges to 11. The
appellant was also aware of the fact that no specific provision was
available in the Rules of 1970 as regards upward progression in
DHJS, particularly to the posts of District and Sessions Judge
and Principal Judge, Family Court and hence, by virtue of Rule
27 of the Rules of 1970, she would be deemed to be having
constructive knowledge that the criteria to be adopted for such
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upward progression would be that as applicable for the equivalent
posts in IAS. When it had consistently been provided that for
promotion to the scale of Rs. 18,400-22,400 and above, the
prescribed benchmark of "very good" ought to be met in all ACRs
of five years under consideration; and when the higher posts of
District and Sessions Judge and Principal Judge, Family Court
do carry much higher scales of pay, neither the High Court could
be faulted in applying the same benchmark for such higher posts
in DHJS nor the appellant could feign ignorance about the same.
Apart from that, in the Rules of 1970, even the entry level
promotion to the post in DHJS is on the basis of merit-cumseniority or merit. Viewed in the light of such requirements, it
goes without saying that any upward progression in DHJS could
only be on the higher requirements of merit and in any case,
such requirements cannot be lesser than the requirements at
entry level. [Paras 18, 18.1][403-H; 404-A-G]
3.2 The appellant was aware of, and shall always be deemed
to be conscious of, the requirement that any promotion to the
post of District and Sessions Judge or Principal Judge, Family
Court would only be on the basis of such norms where merit
would be a crucial factor and seniority alone would not suffice. It
follows as a necessary corollary that the appellant was also
conscious of the position that while making any such promotion,
the assessment would be based on the competitive merit of the
candidates in the zone of consideration; and if any candidate in
such zone of consideration was possessed of better merit than
herself, he would be preferred for promotion. [Para 18.3][405-EF]
4.1 Coming now to the operation of the criteria in question,
providing for the norms for assessment of the comparative merits
of the candidates in the zone of consideration, was squarely within
the domain of the High Court; and infringement of the right of
consideration could only be suggested if different yardsticks or
different norms were provided and applied qua the similarly
circumstanced persons. However, this is not the case of the
appellant nor it could be so because the High Court has apparently
taken up all the persons in the zone of consideration at the
relevant time and has accorded promotion on the basis of
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comparative merit of the candidates. The appellant, when could
not stand in such competitive merit position, cannot raise a
complaint about infringement of any of her legal rights. It is not
the case of the appellant that anybody junior to her and standing
equal in merit or anybody not fulfilling the criteria laid down by
the High Court has been promoted. [Para 19][405-G-H; 406-AB]
4.2 Looking to the duties and responsibilities attached with
the higher posts of District and Sessions Judge and Principal
Judge, Family Court, the High Court cannot be faulted in
providing for a reasonable method of assessment of the requisite
merit in the manner that a candidate in the zone of consideration
ought to be possessing minimum five "very good" ACRs in the
preceding five years from the base year. In fact, the criteria so
adopted had been the identical one as provided for the members
of IAS in the equivalent pay scales. [Para 19][406-C-D]
4.3 The material placed on record show that the case of the
appellant was duly considered for such promotion along with the
other incumbents but herself and a few others were not promoted
for not fulfilling the criteria as provided in the impugned
resolutions. The High Court did not change the eligibility criteria
for appointment to the post of District and Session Judge or
Principal Judge, Family Court but merely evolved a selection
criteria for evaluation of eligible candidates. There had not been
any denial of a pre-existing right of the appellant, who entered
the zone of consideration only in the year 2014-15 whereas, the
criteria in question was implemented for the appointments made
from the year 2012. The appellant has not been denied fair and
reasonable consideration of her case for promotion to the posts
of District and Sessions Judge by operation of the criteria laid
down in the impugned resolutions. [Paras 21, 22, 23][406-E-F;
407-B-D]
5.1 It is not in dispute that the appellant was, in fact,
informed of every grading made in her ACR. She was awarded
'B+' (good) in the years 2010, 2011, 2012 and 2013; and 'A' (very
good) in the year 2014. She never challenged her gradings for
any year except that for the year 2011 when she requested for
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upgradation of her ACR grading from 'B' to 'B+' or 'A'; and the
High Court, acceding to her request, upgraded her ACR to 'B+'.
The appellant, not being oblivious of the position that for any
upward progression in DHJS, comparative merit would be a key
factor, chose to remain contented with her grading at 'B+' in the
relevant years and did not question the same at the appropriate
time and in appropriate manner. That being the position, she
cannot be acceded the right to contend now and at this stage that
the ACR gradings have operated adverse to her. [Para 25.1][409D-G]
5.2 The other contention as on behalf of the appellant that
only the overall ACR grading was communicated but not the pointwise grading or criteria for grading, again, does not advance the
cause of the appellant in any manner. The appellant failed to show
any legal requirement on the respondent establishment to supply
to her anything other than the overall grading. Also the grading
of an individual officer remains a matter between the officer and
the establishment and any other officer cannot claim to be
informed about the grading of any other officer as a matter of
right. The system and method for awarding of the grades in ACR
at the relevant time was equally applicable to all the judicial
officers; and the gradings, not only of the appellant but of all other
officers too, were made by way of the same methodology. Therein
too, the judicial officers' work and performance was supervised
and graded by the committees comprising of three Judges and
ultimately, the gradings were finalised by the Full Court. In the
impugned order also, the High Court found such system to be a
merited one but indicated the want of uniform set of rules or
guidelines for all the appraisal committees to follow; and thereafter
proceeded to lay down certain norms to be kept in view by the
evaluation authorities. The observations by the High Court,
essentially meant for improvement of the system with uniform
set of guidelines, do not nullify the effect of the ACRs already
marked by the existing system. The guidelines indicated by the
High Court in the order impugned could only be construed as
being meant for future implementation. Nothing turns upon such
observations in relation to the case of the appellant. The appellant
has not been able to establish that she had suffered any prejudice
in the matter of ACR gradings. [Paras 27, 28, 29][410-C-H; 411A-C]
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Ajit Singh and Ors. (II) v. State of Punjab and Ors.
(1999) 7 SCC 209 : [1999] 2 Suppl. SCR 521;
Chandramouleshwar Prasad v. Patna High Court AIR
1970 SC 370; Central Council for Research in
Ayurveda & Siddha and Anr. v. Dr. K. Santhakumari
(2001) 5 SCC 60 : [2001] 3 SCR 519; Dev Dutt v. Union
of India (2008) 8 SCC 725 : [2008] 8 SCR 174;
Sukhdev Singh v. Union of India (2013) 9 SCC 566 :
[2013] 5 SCR 1004 - relied on.
State of U.P. v. Mahesh Narain (2013) 4 SCC 169 :
[2013] 4 SCR 534; Nirmal Chandra Bhattachargee &
Ors. v. Union of India & Ors. (1991) 2 Suppl. SCC 363
- distinguished.
State of Bihar v. Bal Mukund Sah (2000) 4 SCC 640 :
[2000] 2 SCR 299; Haryana State Electronics
Development Corporation Limited and Ors. v. Seema
Sharma and Ors. (2009) 7 SCC 311 : [2009] 7 SCR
662 - referred to.
Case Law Reference
[1993] 1 Suppl. SCR 749
referred to
Para 7.1
[2000] 2 SCR 299
referred to
Para 9
[2009] 7 SCR 662
referred to
Para 11.2
[1999] 2 Suppl. SCR 521
relied on
Para 15.1
AIR 1970 SC 370
relied on
Para 15.2
[2001] 3 SCR 519
relied on
Para 15.4.2
[2013] 4 SCR 534
distinguished
Para 22
(1991) 2 Suppl. SCC 363
distinguished
Para 22
[2008] 8 SCR 174
relied on
Para 25
[2013] 5 SCR 1004
relied on
Para 25
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2374
of 2020.
From the Judgment and Order dated 21.08.2018 of the High Court
of Delhi at New Delhi in Civil Writ Petition No. 3157 of 2015
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT
OF DELHI
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Indira Jaising, A. Mariarputham, Sr. Advs., Sunil Fernandes,
Ms. Nupur Kumar, Ms. Nehmat Kaur, Paras Nath Singh, Zeeshan Diwan,
Priyansha I. Sharma, Gautam Narayan, Ms. Asmita Singh, Adithya Nair,
Chirag M. Shroff, Ms. Mahima C. Shroff, Ms. Yashika Verma, Advs.
for the appearing parties.
The Judgment of the Court was delivered by
DINESH MAHESHWARI J.
PRELIMINARY AND BRIEF OUTLINE
1. Leave granted.
2. This appeal by special leave is directed against the judgment
and order dated 21.08.2018 as passed by the High Court of Delhi at
New Delhi in W.P. (C) No. 3157 of 2015, whereby the High Court
dismissed the petition filed by the appellant, a member of Delhi Higher
Judicial Service1, seeking to challenge the constitutional validity of Rule
27 of the Delhi Higher Judicial Service Rules, 19702 and the Full Court
resolutions dated 28.04.2009, 15.01.2010 and 27.01.20113 concerning
the criteria for appointment of a member of higher judicial service to the
post of District Judge and Sessions Judge or its equivalent.
3. While passing the order impugned, the High Court upheld the
gradual implementation of the eligibility criteria for promotion to the post
of District and Sessions Judge or equivalent with reference to the gradings
in the Annual Confidential Reports4 in five years preceding the base
year of consideration. However, while concluding on the matter, the
High Court also made certain observations on desirability of uniform
norms for award of such gradings; and issued directions for evolving
uniform grading system for future implementation.
RELEVANT RULES AND FULL COURT RESOLUTIONS
4. For comprehension of the principal submissions and the issues
raised in this appeal, appropriate it would be to take note of the relevant
rules and the relevant part of the impugned resolutions at the outset.
1 'DHJS' for short.
2 Hereinafter also referred to as 'the Rules of 1970'.
3 Hereinafter also referred to as 'the impugned resolutions'.
4 'ACR' or 'ACRs' for short
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4.1. The relevant provisions concerning recruitment to the posts
in the cadre of Higher Judicial Service are contained in Rule 7 in the
Rules of 1970. Rule 7(1), in its present form, reads as under:-
"7. Regular recruitment.- (1) Recruitment to the posts in the
cadre of District Judge at Entry Level shall be as under:
(a) 65 percent by promotion from amongst the Civil Judges (Senior
Division), having a minimum ten years service in the cadre of
Delhi Judicial Service, on the basis of principle of merit-cumseniority;
(b) 10 percent by promotion strictly on the basis of merit through
limited competitive examination of Civil Judges (Senior Division)
having not less than five years qualifying service; and
(c) 25 percent of the posts shall be filled by direct recruitment
from amongst the persons eligible as per rule 7C on the basis of
the written and viva voce test, conducted by the High Court."
4.1.1. The provisions contained in Rule 7A of the Rules of 1970,
as substituted by the notification dated 27.10.2009 and amended by
notification dated 22.12.2011 could also be noticed as under:-
"7A. Selection for Promotion on the basis of merit and
suitability.- Recruitment by promotion under clause (a) of subrule (1) of Rule 7 above shall be made by selection on the basis of
merit-cum-seniority."
4.1.2. The matters relating to appointment, probation and
confirmation are provided in Rules 12 to 15 in Part IV of the Rules of
1970, which are as follows:-
"12. (1) Persons appointed to the service at the initial recruitment
shall stand confirmed with effect from the date of appointment.
(2) All other candidates on appointment to permanent post shall
be on probation for a period of two years.
EXPLANATION: - The period during which an officer holds a
temporary post will be counted towards probation but he will be
confirmed only when a permanent post is available.
13. All persons appointed' to the service on probation shall be
confirmed at the end of the said period of two years.
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT
OF DELHI [DINESH MAHESHWARI, J.]
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Provided that the Administrator may, on the recommendation
of the High Court, extend the period of probation, but in no case
shall the period of probation extend beyond the period of three
years.
14. The services of a person appointed on probation are liable to
be terminated without assigning any reason.
15. After successful completion of the period of probation the
officer shall be confirmed in the service by the Administrator in
consultation with the High Court .and the same shall be notified in
the Delhi Gazette."
4.1.3. In Part VI of the Rules of 1970, the provisions regarding
pay and allowances have been made; and these provisions also specify
the method of assessment for granting Selection Grade and Super Time
Scale. Rules 18 to 20 in this Part VI read as under5: -
"18. The pay scales of the Service shall be as follows:
1.
District Judges Entry level Time Scale
(Addl. District Judges)
Rs,16750400-19150450-20500
2.
Selection Grade [limited to 25% of cadre
posts of District Judges Entry level Time
Scale (Additional District Judges) and will
be given to those having not less than five
years of continuous service in the cadre on
assessment of merit-cum-seniority]
Rs,18750400-1915045021850500-22850
3.
District Judges (Super time scale) (This
scale would also be available to 10% of the
cadre strength of District Judges, and
would be given to those who have put in
not less than three years of continuous
service in selection grade on assessment of
merit-cum-seniority)
Rs,22850500-24850
19. The initial pay of a direct recruit shall be the initial pay in the
time scale mentioned in rule 18.
Provided that the Administrator may, on the recommendation
of the High Court, give advance increments to suitable candidates
appointed to the service.
5 Rule 18 came to be substituted by way of the notification dated 22.10.2008.
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20. The pay of a promoted officer shall be fixed in the aforesaid
time scale in accordance with the financial rules, regulations, orders,
or directions, applicable from time to time, to members of the
lAS."
4.1.4. We may also take note of Rule 26 in Part VII of the Rules
of 1970 which reads as under: -
"26. Direct recruits will have to produce before appointment a
certificate of physical fitness in accordance with the standards
prescribed for the lAS."
4.1.5. Rule 27 of the Rules of 1970, providing for residuary matters,
that had been questioned by the appellant as being ultra vires, reads as
under: -
"27. RESIDUARY MATTERS:- In respect of all such matters
regarding the conditions of service for which no provision or
insufficient provision has been made in these rules, the rules,
directions or orders for the time being in force, and applicable to
officers of comparable status in the Indian Administrative Service
and serving in connection with the affairs of the Union of India
shall regulate the conditions of such service."
5. Having taken note of the rules that are directly relevant for the
case at hand as also the rules that may have some bearing on the issues
raised, we may now refer to the Full Court resolutions which form the
subject matter of this litigation.
5.1. In its Full Court meeting dated 28.04.2009, the High Court
adopted a resolution to the effect that, for the purpose of being selected/
promoted as District and Sessions Judge, a candidate of Higher Judicial
Service ought to fulfil the criteria of possessing at least two 'A' (very
good) and three 'B+' (good) in the ACR gradings for the preceding five
years from the date of consideration for such appointment. This Full
Court Resolution dated 28.04.2009 reads as under:-
"Discussed. It was resolved as under:-
(i) The following shall be adopted as the zone of consideration for
selection of officers for appointment as District Judges:-
SUJATA KOHLI v. REGISTRAR GENERAL, HIGH COURT
OF DELHI [DINESH MAHESHWARI, J.]
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No.
of
Vacancies
No.
of
officers
within
zone
of
consideration
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5
2
8
3
10
4
12
5
14
6
16
7
18
8
20
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22
In the case of Sessions Judge, the zone of consideration would be
restricted to officers already appointed as District Judges including
on proforma basis.
(ii) The officers who would be, or likely to be, in the zone of
consideration for appointment/selection to the post of District Judge
in a particular year shall be under the control of the Committee of
Inspecting Judges headed by Hon'ble the Chief Justice in the
preceding year and in the year in question.
(iii) For evaluation of such officers, as are mentioned in the
preceding clause, detailed remarks shall be recorded in the ACRs
by the Committee mentioned above.
(iv) For evaluation of the officers within the zone of consideration
for "selection by merit", the following criteria shall be taken into
account:-
(a) ACR grading for the last 5 years in which the gradings for at
least 2 years (including the 5th year) must be minimum "A" (Very
Good), the officer having secured in the remaining 3 years no less
than "B+" (Good) grading. However, in the case of SC/ST officers,
this criteria shall be relaxed so as to require minimum "B+" (Good)
grading in each of the 5 years.
(b) Vigilance report.
(c) Disposal figures for the last 5 years.
(d) Administrative capabilities.
(e) General reputation for honesty & integrity and conduct."
5.2. However, the prescription aforesaid was modified by another
Full Court resolution dated 15.01.2010 to the effect that for being
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selected/promoted as District and Sessions Judge, a candidate of Higher
Judicial Service ought to possess the minimum 'A' (very good) grading
in ACRs of each of the five years under consideration. It had been the
case of the respondent High Court that such criteria were adopted as
being equivalent to the revised promotion criteria in the Indian
Administrative Services6. The relevant part of the said resolution dated
15.01.2010 reads as under:-
"(a) The clause regarding relaxation in ACR gradings for SC/ST
officers is deleted.
(b) The criteria in para 9(iv) (a) is modified so as to require ACR
gradings for each of the five years under consideration to be
minimum 'A' (Very Good) for all categories."
5.3. As against the aforesaid resolution dated 15.01.2010, the High
Court received certain representations, including those from Delhi Higher
Judicial Services Association as also from Delhi Judicial Services
Association. These representations were considered by the Full Court
of the High Court in its meeting held on 06.07.2010 wherein it was
resolved that a Committee be constituted by the Chief Justice to look
into the issue of desirability of change of criteria for appointment to the
post of District Judge. Pursuant to this resolution, Hon'ble the Chief
Justice of the High Court, by his order dated 27.08.2010, constituted a
committee comprising of four Hon'ble Judges. This Committee, in its
report dated 08.10.2010, recommended for implementation of the revised
criteria in a phased manner as under:-
"We find that the post of District Judge is to be manned by officers
of Delhi Higher Judicial Service in Super Time Scale of Rs.2285024850 (pre-revised). Having regard to the revised guidelines as
circulated vide Govt. of India, DoPT O.M. No. 22011/3/2007Estt(D) dated 18th February 2008 wherein it has been mentioned
that the DPC may ensure that for promotion to the scale of
Rs.18,400-22,400 (pre-revised) and above, the prescribed
benchmark of 'Very Good' is invariably met in all ACRs of five
years under consideration, we are of the opinion that the existing
criteria for appointment to the post of District Judge requiring
ACR gradings for each of the five years under consideration to
be minimum 'A' 'Very Good) for all categories, should be
6 'IAS' for short
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maintained. However, since the criteria of "at least two ACR
gradings of 'A' (Very Good) and remaining three ACR gradings
of 'B +' (Good)" fixed on 28th April, 2009 was changed to "ACR
gradings for each of the five years to be minimum 'A' (Very Good)"
on 15th January 2010, we are of the opinion that the implementation
of the said criteria should be in phased manner as under:-
(i) At least two ACR gradings of 'A' (Very Good) and remaining
three ACR gradings of 'B+' (Good) out of the ACR gradings
for the last 5 years under consideration (2004-2008) for the
year 2009;
(ii) At least three ACR gradings of 'A' (Very Good) and remaining
two ACR gradings of 'B+' (Good) out of the ACR gradings
for the last 5 years under consideration (2005-2009) for the
year 2010;
(iii) At least four ACR gradings of 'A' (Very Good) and remaining
one ACR grading of 'B+' (Good) out of the ACR gradings for
the last 5 years under consideration (2006-2010) for the year
2011; and
(iv) ACR grading for each of the five years to be minimum 'A'
(Very Good) for the last 5 years under consideration (20072011) for the year 2012 and onwards.
We recommend that the cases for appointment to the post of
District Judge be considered/reviewed applying the aforesaid
criteria as proposed."
5.3.1. The aforementioned recommendations of the Committee
were accepted by the Full Court in its meeting held on 27.01.2011.
5.4. In the manner aforesaid, the respondent High Court took the
decision to implement the revised criteria envisaged by the aforesaid
resolution dated 15.01.2010 in a phased manner; and the requirements
came to be provided that for appointment to the post of District and
Sessions Judge, a candidate should, in the five years preceding the base
year, carry the ACR gradings as follows:
(i) for the year 2009, at least two 'A' (very good) and the remaining
three 'B+' (good);
(ii) for the year 2010, at least three 'A' (very good) and the
remaining two 'B+' (good);
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(iii) for the year 2011, at least four 'A' (very good) and the remaining
one 'B+' (good); and
(iv) for the year 2012 and onwards, a minimum of five 'A' (very
good).
5.5. From the material placed on record by the respondent No. 1
with an application (IA No.