Law Web: Procedure to be followed by high court for promotion of district Judge

No doubt that the judgments are evaluated and interviews are

conducted by the Hon'ble Judges of this Court. As such, the

assessment of the judgments of the candidate as well as assessment of the performance of the candidate in vivavoce would be presumed to be on objective basis. However, by now, it is a settled principle of law that merely because there is no possibility of discretion being not

exercised properly, that by itself cannot be a ground for granting wider

discretion howsoever high the authority may be. We may also

gainfully refer to the Judgment of the Apex Court in Ajay Hasia vs.

Khalid MujibAIR 1981 SC 487. In the said case, selection process included 33.33

percentage marks for oral interview. Their Lordships held that

allocation of a high percentage of marks for the oral interview as

compared to the marks allocated for the written test, cannot be

accepted by the Court as free from the vice of arbitrariness. After

discussing the entire legal position, Their Lordships observed that

allocation of more than 15% of the marks out of the total marks for

the oral interview would be arbitrary and unreasonable and was liable

to be struck down as constitutionally invalid. In the Rules that fall for

consideration before us more than twice permissible limit of 15% i.e.

33.33% of the marks are allocated on the basis of oral interview. Not

only that even 33.33 % of the marks which are to be allocated on the

basis of evaluation of the judgment are also on the basis of subjective

evaluation which may differ from a judge to judge.{Para 12}

13] We are therefore of the prima facie view that award of only

33% of marks on the basis of objective assessment and 66.66 % of

marks on the basis of subjective assessment i.e. evaluation of

judgments and oral viva appears to be an issue which needs to be

looked into.

14] We may clarify that we do not propose to encroach upon the rule

making powers of the High Court on the Administrative Side.

However, as already discussed hereinabove, we may also observe that it is high time that the Rules which govern the promotions of high office of District Judge need to be reframed in a proper format. We may also prima facie observe that the selection process for the

promotion should not have more than 50% of the marks to be

determined on the basis of subjective assessment i.e. evaluation of

judgment and granting of marks for vivavoce. We therefore feel that

rule making authority i.e. High Court on the Administrative Side will

address the issue and find out a system of selection which has more

weightage on the objective assessment than the subjective assessment

of the candidate.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO. 1440 OF 2017

Surekha Abhay Sinha V/s State of Maharashtra

Mr. Ravi Gadagkar a/w Mr. Aniket Ransubhe i/b Mr. Ajay Basutkar for the Petitioner.

Mr. Himanshu Takke, Asstt. Govt. Pleader for Respondent Nos. 1 and

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Rahul Nerlekar for Respondent No.3.

CORAM: B. R. GAVAI & M.S. KARNIK, JJ.

DATE: 4th September, 2017

Petitioner has approached this Court, praying for calling for the

record pertaining to her claim for the post of District Judge and for

Adhoc

District Judge by regular promotion for the year 2016.

2] Petitioner is a Judicial Officer. She was selected as Civil Judge

Junior Division in 1999. She came to be promoted as Civil Judge,

Senior Division in 2011. She came in the zone of consideration for

promotion to the post of District Judge and Adhoc District Judge in

the year 2016. Accordingly, judgments of the Petitioner came to be

called for evaluation. In the selection process, which also includes

oral viva, Petitioner was shown not to be selected. It appears that

being aggrieved, Petitioner made a representation to the Hon'ble Chief

Justice on the administrative side. However, the same was rejected.

Hence, the Petitioner has approached this Court by way of the present

Petition.

3] Mr. Gadagkar, learned Counsel appearing on behalf of the

Petitioner, submitted that the Petitioner has been denied promotion on

erroneous interpretation of the Rules governing promotions. He

submitted that if the Rules are interpreted properly then the

conclusion which could be arrived at, would be that the candidate

should get 60% of the marks granted on evaluation of judgments,

annual confidential reports, vigilance reports, disposal remarks and

special reports. He submitted that the interpretation would also lead

to a conclusion that the candidate should get 40% of the marks in the

oral viva for being eligible to be selected.

4] Mr. Gadagkar further submitted that subrule

3(i) of Rule 11

itself postulates two different words i.e. “evaluation” and

“examination”. Relying on dictionary meaning of the word

“evaluation”, learned Counsel submitted that evaluation would mean

finding of numerical expression or calculation. He submitted that this

can be done only of the marks which are determined on the basis of

record of the Petitioner. He further submitted that, as against this, the

word “examination” would postulate the formal test of knowledge or

proficiency. He further relies on clause (f) of subrule

(1) of Rule 6,

which reads thus:“

6(1)(f) The object of the vivavoce

examination under these Rules is to assess the

suitability of the candidate for the cadre by

judging the mental alertness, knowledge of

law, clear and logical exposition, balance of

judgment, skills, attitude, ethics, power of

assimilation, power of communication,

character, intellectual depth and the like of the

candidate.”

He submits that the object of vivavoce

examination is to assess the

suitability of the candidate for the cadre by judging his/her mental

altertness, knowledge of law, clear and logical exposition, balance of

judgment, skills, attitude, ethics, power of assimilation, power of

communication, character, intellectual depth and the like of the

candidate. Relying on aforesaid provision, he submitted that since the

viva provides for detailed examination as provided in the aforesaid

clause, subrule

3(i) of Rule 11 will have to be held to mean that

insofar as evaluation is concerned, it will have to be restricted to the

earlier part i.e. evaluation of judgments, annual confidential reports,

vigilance reports, disposal remarks, special reports wherein the

candidate should get 60% of the mark i.e. 60 marks out of 100 marks

and examination part would be only restricted insofar as viva is

concerned wherein the candidate should get 40% i.e. 20 marks out of

50 marks.

5] Learned Counsel for the Petitioner submitted that, however,

Respondent No.3 has erroneously interpreted that the candidate must

get 60% of total 150 marks. Learned Counsel therefore submitted that

the Petitioner, having secured 65 marks on the basis of evaluation of

judgments etc and 23.67 marks in oral viva, will have to be held to

have been qualified in the process and, as such, eligible to be

promoted as District Judge.

6] Promotion to the post of Adhoc

District Judge is governed by

subrule

3(i) of Rule 11 of the Maharashtra Judicial Services Rules,

2008. The relevant part of the said Rule reads thus:11(

3)(i) …............“The suitability for promotion

of Senior Civil Judges to the cadre of District

Judges under this Rule shall be considered on the

basis of evaluation of their judgments carrying 50

marks, evaluation of Annual Confidential Reports

carrying 20 marks, Vigilance reports carrying 10

marks, disposal remarks carrying 10 marks and

special reports of the heads of the departments

under whom the Judicial Officer has worked

during three years preceding the year of selection

carrying 10 marks and vivavoce

examination

carrying 50 marks.

Subject to clause (iii) of subrule

(3), the

Recruiting Authority Shall draw up a list of

officers from the zone of consideration out of

those Senior Civil Judges, who have obtained at

least 60% marks in the evaluation referred to in

the preceding clause, provided the selection

committee does not entertain any doubt about the

integrity of the concerned Judicial Officer. If the

number of officers who have obtained 60% marks

or more is more than the number of vacancies to

be filled up in the next one year, they shall be

picked up in the order of their seniority in the

cadre of Senior Civil Judges and their names in

the select list shall be arranged in accordance with

their seniority in the cadre of Senior Civil Judges.

Appointments shall be made from the list so

prepared.

(ii)(a).............

(b)............

(c )...........

(iii) Only such Judicial Officer, who obtains at least

40% of marks in vivavoce

test shall be eligible for

being promoted under Rule 5(1)(a) or 5(1)(b).”

7] It would thus be seen from perusal of the aforesaid provision

that suitability for promotion is to be considered on the basis of

evaluation of the judgments carrying 50 marks, evaluation of Annual

Confidential Reports carrying 20 marks, Vigilance reports carrying 10

marks, disposal remarks carrying 10 marks and special reports of the

heads of Department under whom Judicial Officer has worked during

three years preceding the year of selection carrying 10 marks and vivavoce

examination carrying 50 marks. It would further reveal that the

Rule specifically provides that subject to clause (iii) of subrule

(3),

the Recruiting Authority is required to draw up a list of Officers from

the zone of consideration out of those Senior Civil Judges, who have

obtained atleast 60% marks in the evaluation referred to in the

preceding clause.

8] We are unable to accept the interpretation as placed by the

learned Counsel for the Petitioner. Paragraph prior to “subject to

clause (iii) of subrule

3...” specifically includes the evaluation of

judgments i.e. 50 marks on the basis of judgments, 20 marks on the

basis of evaluation of Annual Confidential Reports, 10 marks for

Vigilance reports, 10 marks for disposal remarks and 10 marks for

special reports of the heads of the Department under whom the

Judicial Officer has worked during three years preceding the year of

selection and 50 marks for vivavoce

examination. If the

interpretation as placed by the learned Counsel for the Petitioner is to

be accepted then the words used in the subsequent para i.e. “in the

evaluation referred to in the preceding clause” will be rendered

meaningless. It is a settled principle of law that there is a presumption

that each and every word used in the enactment is with purpose and

if we accept the contention as raised by the Petitioner, the aforesaid

words would be rendered otiose.

9] Further, upon conjoint reading of the unnumbered paragraphs

cited above from subrule

3(i) of Rule 11, it would reveal that the

requirement is two fold. Firstly, the candidate should get 60% out of

total evaluation from 150 marks together and 40% of oral viva i.e.

minimum 20 marks out of 50 meant for vivavoce.

10] We are therefore not inclined to accept the contention as raised

by the Petitioner. However, while rejecting the contention of the

Petitioner, we may note that the Rules, as they exist, do not appear to

be in orderly manner. It appears that even after amendments, there

are certain paragraphs in the Rules which are not even numbered. It is

therefore difficult to refer to the provisions by referring to them as

subrule,

or subclause

etc.

11] It is further to be noted that the present case appears to be an

unfortunate one. Though the record of the Petitioner reveals that her

Annual Confidential Reports are excellent throughout and that her

disposal is also good and further that she got good marks in the

Vigilance reports and further that she has also got good marks in the

special reports, she has failed to make it to the gate way of the marks

of 90, on account of lesser number of marks secured by her in

judgment rating and vivavoce.

On the basis of 50 marks provided for

Annual Confidential Reports, Vigilance reports, disposal remarks,

special reports of the heads of the Department, Petitioner has got 40

out of 50 i.e. almost 40.10 i.e. more than 80%. However, insofar as

judgment rating is concerned, Petitioner has got 25 marks out of 50

and insofar as vivavoce

is concerned, Petitioner has got 23.67 marks

out of 50. Total marks granted to the Petitioner are 88.77. It could

thus be seen that the Petitioner has missed the bus by only 1.23 marks.

Though on the one hand, on the basis of objective assessment, as could

be depicted from the record of the Petitioner, she has got 80% of the

marks, on the other hand on the basis of marks allotted subjectively by

evaluating her judgments and her performance in vivavoce,

she has got 50% or less than 50% of the marks.

12] No doubt that the judgments are evaluated and interviews are

conducted by the Hon'ble Judges of this Court. As such, the

exercised properly, that by itself cannot be a ground for granting wider

discretion howsoever high the authority may be. We may also

gainfully refer to the Judgment of the Apex Court in Ajay Hasia vs.

Khalid Mujib1. In the said case, selection process included 33.33