Interview Also Be Done To Assess Suitability Of Judicial Officers For Promotion As District Judges In 65% Quota : Supreme Court Suggests

The Supreme Court in its recent judgement concerning the promotion of Judicial Officers by the Gujarat High Court, observed a few suggestions to enhance the 'suitability test' employed by the High Court for promoting judicial officers on the basis of 'Merit-cum-Seniority'. On May 17, the Court upheld the recommendations made by the High Court of Gujarat in 2023 for the promotion of Senior Civil Judges to the 65% promotion quota of District Judges on the basis of merit-cum-seniority principle.

The bench comprising CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra in its ruling explained the concept of 'merit-cum-seniority' & 'suitability test' as applicable under Rule 5 of the Gujarat State Judicial Service Rules, 2005.  Rule 5 requires that the 65% recruitment to the District Judge cadre be done through promotions amongst the Senior Civil Judges on the principle of merit-cum-seniority and passing a suitability test. 

The Court has suggested that the Gujarat High Court may amend its Rules on the aspect of the suitability test in making it as elaborative as seen in the Uttar Pradesh Higher Judicial Service Rules, 1975. The key recommendations included having a Viva Voce as another testing component for the candidates, increasing the passing threshold under each existing component, considering the quality of judgements of the candidates from last two years instead of one year and including seniority within the test scoring while finalising the merit list . 

In the instant case, the writ petitioners sought to declare the Select List dated 10.03.2023 issued by the High Court of Gujarat for the promotion of Senior Civil Judges to the Cadre of District Judge (65% quota) as being violative of Article 14 of the Constitution of India as well as Rule 5 of the Gujarat State Judicial Service Rules, 2005 

On 'Suitability Test' As Per Rule 5 : Merit Under 'Merit-cum-Seniority' Is To Be Determined By A Suitability Test 

The Court observed that the principle of 'Merit-cum-Seniority' required the aspect of merit to be determined based on a suitability test.  In the present case of the High Court's decision on promotions, the suitability test used conformed with the decision in All India Judges' Association (3) which referred to two main requirements - (i) the objective assessment of legal knowledge of the judicial officer including adequate knowledge of case law, (ii) the evaluation of continued efficiency of the individual candidate.

 "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......In the present case, the merit of a candidate is assessed by means of a suitability test, as prescribed under paragraph 27 of the decision in All India Judges' Association (3) (supra)." 

The Court observed that the suitability test is meant to asses several factors in order to consider the candidate's merit. These factors include considerations like  (1) Knowledge of law; (2) Quality of judgments; (3) Annual Confidential Reports (ACRs); (4) Efficiency during their tenure. The test is designed to ensure that those who are able to succeed in it possess the same level of merit. Based on this evaluation of merit, candidates are then promoted on the basis of seniority. It was held that even though seniority is considered last merit is still the main focus. If a candidate is not suitable, they can't be promoted, no matter how senior they are.

"The suitability test assesses multiple aspects of a candidate's merit like knowledge of law, quality of judgments, ACRs, etc. along with the efficiency of the candidate exhibited during the tenure already served. The suitability test is devised in such a manner that all candidates who clear the test can be said to possess more or less the same level of merit. Once a list of all similarly meritorious candidates is prepared, seniority is applied to select the candidates for promotion. Although seniority is applied at the last stage of the selection process, yet merit still plays the pre-dominant role as a candidate who does not possess the necessary suitability becomes ineligible for promotion irrespective of their seniority." 

The Court therefore concluded that it is wrong to claim that since the test did not compare the merit of the candidates and seniority was used at the final step, the selection process violated the 'Merit-cum-Seniority' principle. As long as merit and seniority are considered with merit taking a dominant focus, the promotion would be considered valid under the 'Merit-cum-Seniority' rule. 

 "We are of the view that it would be incorrect to hold that merely because the test was not one of comparative merit and as seniority was applied at the final stage of the selection process, the process cannot be said to be one not adhering to the principle of 'Merit-cum-Seniority'. As long as 'Merit-cum-Seniority' is applied in the manner it has been explained in the decision in All India Judges' Association (3) (supra), wherein both merit and seniority are considered, and merit plays the dominant role, the process of promotion cannot be said to be violative of the principle of 'Merit-cum-Seniority'." 

Suggestions To Make Suitability Test More Meaningful: Court Recommends More Efficacious & Productive Evaluations 

While upholding the suitability test employed by the Gujarat High Court to select judicial officers on the basis of the principle of 'Merit-cum-Seniority', the Court however felt the need to "convey  to the High Court of Gujarat 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 recommendation came in light of the Court's endeavour to assist in ensuring that the minimum standard of objective assessment in a suitability test be made more efficacious and productive. 

The suggestions include: (1) adding a segment of Viva Voce as the 5th part of the suitability test; (2) raising the passing marks needed in the test under each of the components; (3) consider the judgements of the candidates over the last two years instead of one year; (4) make seniority as part of the scoring within the suitability test instead of considering it after the test. 

(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. 

Background

The writ petitioners sought to declare the Select List dated 10.03.2023 issued by the High Court of Gujarat for the promotion of Senior Civil Judges to the Cadre of District Judge (65% quota) as being violative of Article 14 of the Constitution of India as well as Rule 5 of the Gujarat State Judicial Service Rules, 2005 (hereinafter referred to as “Rules, 2005”).

In the case of All India Judges' Association and Ors. Vs. Union of India and Ors., (2002) 4 SCC 247, the Court had directed that the recruitment to the cadre of District Judges will be on the basis of principle of “merit- cum-seniority” and passing a suitability test. In pursuance to the above directions, the High Court of Gujarat has framed the Gujarat State Judicial Service Rules, 2005, in which, 50 percent of the promotion from amongst the Senior Civil Judges (Senior Division) has been enhanced to 65 percent by way of amendment in the Rules, 2005 on 23.06.2011. Rule 5(1)(i) of the Rules, 2005 requires that 65 percent of the posts in the cadre of District Judges shall be filled in by way of promotion from amongst the Senior Civil Judges on the basis of “principle of merit-cum-seniority and passing a suitability test”.

The High Court of Gujarat issued an advertisement by way of Recruitment Notice – District Judge (65%) dated 12.04.2022 for the promotion to the cadre of District Judges from amongst the Senior Civil Judges on the basis of the principle of merit-cum-seniority and passing a suitability test to fill up 65 percent of the vacancies. The said Notification was issued alongwith list of 205 judicial officers in the cadre of Senior Civil Judges falling under the zone of consideration.

The Recruitment Notice mentioned that “promotion to the cadre of District Judge (65%) from amongst the Senior Civil Judges will be on the basis of principle of merit-cum-seniority and on passing a suitability test. In the Recruitment notice also, there was a reference to the suitability test, which comprised of four components for assessing the suitability of a judicial officer for promotion.

Last year, a two-judge bench of the Supreme Court had stayed the promotion on the prima facie ground the promotions were made violating the principle of "merit-cum-seniority". 

Case Title : Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors. | Writ Petition (Civil) No. 432 of 2023

Citation : 2024 LiveLaw (SC) 387