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SUPREME COURT OF INDIA
A.M.KHANWILKAR, DINESH MAHESHWARI, JJ.
Sujata Kohli – Appellant
Versus
Registrar General, High Court of Delhi & Ors – Respondent
Civil Appeal No. 2374 of 2020 (Arising Out of SLP (C) No. 24206 of 2018)
Decided On : 24-04-2020
(a) Delhi Higher Judicial Service Rules, 1970 - Rule 27 - Validity challenged contending it is ultra vires (1993) 4 SCC 288 - Rule not equating judicial officers with the executive officers - Rule only providing for applicability of rules governing IAS where no sufficient provision has been made in 1970 Rules - Essentially meant for proper regulation of the service - Not putting judicial officers at par with IAS - Contention rightly rejected by High Court. (Para 15)
(b) Service law - Promotion - Right to be considered for promotion - A fundamental right - Merit-cum-seniority and seniority-cum-merit - Distinction - High Court following Merit-cum-seniority - Only seniority cannot be given primacy in matter of promotion in DHJS. (Para 16)
(c) Delhi Higher Judicial Service Rules, 1970 - Rule 27 r/w Full court resolutions - no-norms position for promotion existing prior to the year 2009 - Could not have been continued with reorganisation of the District Courts - Certain norms commensurate with the posts in question, were required to be provided - Resolutions providing them with reference to prescriptions for the officers of IAS in the equivalent pay scales - No error - Gradual implementation of the resolutions not amounting to retrospective application of the resolution. (Para 17)
(d) Service law - Promotion - DHJS - Appellant alleging that she was not made aware of the so-called revised criteria - Appellant recruited to service in 2002 and confirmed with effect from 25.11.2004 - Even for entry promotion criteria is merit-cum-seniority - The criteria for higher promotions could not be lower than that - Appellant would be deemed to be having constructive knowledge that criteria to be adopted for such upward progression would be that as applicable for the equivalent posts in IAS - Gradual implementation of the criteria was decided on representations of Delhi Higher Judicial Service Officers Association and Delhi Judicial Service Officers Association - Being a member of such Association appellant cannot plead unawareness of the developments. (Para 18)
(e) Service law - Promotion - DHJS - Right to considered for promotion - Can be said to be infringed only when different norms are applied qua similarly circumstanced persons - Appellant, unsuccessful in competitive merit position - Cannot complaint about infringement of any of her legal rights. (Para 19, 20, 28, 30)
(f) Service law - Promotion - ACR grading - Communication of - Appellant was communicated her ACR grading every year - Requirement of Dev Dutt fulfilled - Individual’s minimum merit not decisive for promotion - Comparative merit of the persons in the zone of consideration is relevant. (Para 26)
(g) Service law - Promotion - ACR grading - Appellant not challenging her ACR gradings any time - Not entitled to raise any question on process or criteria for such award of gradings. (Para 27)
Facts of the case:
The High Court dismissed the petition filed by the appellant, a member of Delhi Higher Judicial Service, seeking to challenge the constitutional validity of Rule 27 of the Delhi Higher Judicial Service Rules, 1970 and the Full Court resolutions dated 28.04.2009, 15.01.2010 and 27.01.2011 concerning the criteria for appointment of a member of higher judicial service to the post of District Judge and Sessions Judge or its equivalent.
Finding of the Court:
Appellant has not been 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.
Result: Appeal dismissed.
JUDGMENT :
DINESH MAHESHWARI, J.
PRELIMINARY AND BRIEF OUTLINE
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 Service[‘DHJS’ for short.], seeking to challenge the constitutional validity of Rule 27 of the Delhi Higher Judicial Service Rules, 1970[Hereinafter also referred to as ‘the Rules of 1970’] and the Full Court resolutions dated 28.04.2009, 15.01.2010 and 27.01.2011[Hereinafter also referred to as ‘the impugned resolutions’.] 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 Reports[‘ACR’ or ‘ACRs’ for short] 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.
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-cum-seniority;
(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 sub-rule (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.
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 a
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