2006 Supreme(SC) 489

2006(4) Supreme 625
SUPREME COURT OF INDIA
(From Gujarat High Court)
S.B. Sinha and P.P. Naolekar, JJ.
K.K. Parmar and Ors.—Appellants
versus
H.C. Gujarat thr. Registrar & Ors.—Respondents
Civil Appeal Nos. 5773-5776 of 2000
Decided on 12-5-2006
Counsel for the Parties :
For the Appellants : Sanjay Kapur, Mrs. Shubra Kapur and Ms. Arti Singh, Advocates
For the Respondents : Ms. Hemantika Wahi, Mr. Rutwik Panda for M/s. I.M. Nanavati Associates, Advocates and Ms. Meenakshi Arora, Advocate.

IMPORTANT POINTS
1. Merit of a candidate is not his academic qualification. It is sum total of various qualities. It reflects the attributes of an employee.
2. The superior Court exercising its power of judicial review is not concerned as to whether a wrong provision of law has been taken recourse to, but is only concerned with the question as to whether the authority passing the order had the requisite jurisdiction under the law to do so or not.

Headnote:SERVICE LAW—Gujarat (Recruitment and Conditions of Service of Staff) Rules, 1964—Rule 38—High Court of Gujarat (Recruitment and Conditions of Service of Staff) Rules, 1992—Rules 47, 50, 91—Promotion to the post of Section Officer—Eligibility of Assistants working in the High Court of Gujarat—A written examination was held for filling 25 vacancies in the post of Section Officer—All the assistants eligible therefor appeared at the written examination—29 employees did not obtain the requisite marks for appearing at the viva-voce examination—19 of them although cleared the written test but did not do well in viva-voce—Writ petitions filed challenging selection procedure—Allegations that the High Court committed an illegality in allowing all the 91 candidates to appear at the viva-voce test although zone of consideration as envisaged under the Resolution dated 20-3-1982 was confined to the three times number of vacancies—Petitioners allegations that there had been a gross violation of Rule 47(2) of the Rules 1992—Only 14 candidates were selected against 25 vacancies—Whether High Court was justified in holding that Resolution dated 20-3-1982 will have no application whatsoever—(Yes).

       Held : A bare perusal of the purported Resolution adopted by the Government of Gujarat on 20th March, 1982 clearly shows that the same was applicable only in relation to the Head of the Departments. A rule framed by the State in exercise of its power under proviso appended to Article 309 of the Constitution of India may be applicable to the employees of the High Court but the executive instructions issued would not be and in particular when the same is contrary to or inconsistent with the Rules framed by the Chief Justice of the High Court in terms of Article 229 of the Constitution of India. The Resolution dated 20th March, 1982 ex facie applies to the cases of appointment by promotion to the posts of Head of the Department. It, therefore, had no application to promotion to the post of Section Officers, who are not Head of the Department.(Para 17)

       In terms of the said Resolution, the selection committee itself was required to classify officers within the zone of consideration as ‘outstanding’, ‘very good’, ‘good’ and ‘unfit for promotion’. Such a procedure is not adopted in the matter of appointment to the posts pertaining to the administrative side of the High Court. It is the Chief Justice of the High Court who is concerned with the performance of the officers. The said Resolution dated 20th March, 1982 provides that the Public Service Commission was to be consulted so far as the appointment of the employees is concerned. The Public Service Commission does not come into picture at all in the matter of promotion of the assistants to the posts of Section Officers. We, therefore, have no hesitation to hold that the said Resolution has rightly been held to be inapplicable by the Division Bench of the High Court.(Para 18)

       In so far as the second contention raised on behalf of the Appellants is concerned, apparently the same has merit. Merit was the only consideration for promotion to the post of Section Officer. They were selection posts. Selection was, therefore, required to be made strictly on the basis of respective merit of the candidates as also on the basis of their past performance. No employee had a claim to those posts only on the basis of their seniority.(Para 22)

       Sub-rule (2) of Rule 47 of the Rules specifies the mode and manner in which respective merit of the candidate is to be determined. The High Court or for that matter the selection committee could not have ignored the same. In any event, it was for the members of the selection committee, in absence of any marks having been allotted under the rules for judging the past performance of the candidates, to devise a mode therefor. The candidates had no say in the matter. Annual Confidential Reports of the employees concerned must have been placed before the selection committee with a view to enable it to prepare a select list. If they had not adopted any criteria in that regard, the concerned employees cannot be blamed therefor.(Para 25)

       The same, however, may not by itself be sufficient to set aside the entire selection process. The records have not been placed before us. The Appellants might not have obtained the requisite marks for passing the examination either in the written test or at the oral test or both. If any of the Appellants, failed to obtain qualifying marks fixed in terms of the Rules, viz. 40 marks, the question as to whether their past performance was otherwise better than the candidates who had been selected would take a back seat. However, only such candidates who had not only passed both written and oral tests, their past performances were required to be taken into consideration.(Para 26)

       Merit of a candidate is not his academic qualification. It is sum total of various qualities. It reflects the attributes of an employee. It may be his academic qualification. He might have achieved certain distinction in the University. It may involve the character, integrity and devotion to duty of the employee. The manner in which he discharges his final duties would also be relevant factor.(Para 27)

       For the purpose of judging the merit, thus, past performance was a relevant factor. There was no reason as to why the same had been kept out of consideration by the Selection Committee. If a selection is based on the merit and suitably, seniority may have to be given due weight but it would only be one of the several factors affecting assessment of merit as comparative experience in service should be.(Para 28)