Holding

The promotion process adopted by the High Court of Gujarat, which required candidates to clear a suitability test and then applied seniority, complies with the principle of merit‑cum‑seniority and is not contrary to the statutory rules.

Summary

Two Civil Judges (Senior Division) in Gujarat challenged the High Court's promotion process, alleging that the recruitment notice of 12 April 2022 applied a seniority‑cum‑merit approach contrary to the statutory requirement of merit‑cum‑seniority for the 65% promotional quota. The petitioners invoked Article 32 of the Constitution, arguing that an alternative remedy under Article 226 existed but that the matter involved significant interpretation of service rules. The Supreme Court examined the legislative history of the Gujarat State Judicial Service Rules, 2005, the scope of the principles of merit‑cum‑seniority and seniority‑cum‑merit, and the High Court's custodial role under Article 235. It held that the suitability test satisfied the minimum merit requirement and that seniority was appropriately applied only after candidates met that threshold, thus complying with the principle of merit‑cum‑seniority. Consequently, the Court found no fault with the promotion process and dismissed the writ petition.

Issues considered

What is the scope of the principle of 'Merit-cum-Seniority' in service jurisprudence?
Whether the promotion of Civil Judges (Senior Division) to District Judges under Rule 5(1) of the Gujarat State Judicial Service Rules, 2005 and the 12‑April‑2022 recruitment notice violates the principle of 'Merit-cum-Seniority' as laid down in All India Judges’ Association (3).
Whether the writ petition is maintainable under Article 32 despite the availability of an alternative remedy under Article 226.

Legislation cited

Constitution of Indias. Art.226, s. Art.235, s. Art.32
Gujarat State Judicial Service Rules, 2005s. Rule 5(1), s. Rule 5(3)

Subjects

MeritSeniorityPromotionArticle 32Article 226Article 235Gujarat State Judicial Service RulesMerit-cum-SenioritySeniority-cum-MeritSuitability TestJudicial ServiceHigh CourtWrit PetitionService Law

Judgment

[2024] 5 S.C.R. 1074 : 2024 INSC 436

Ravikumar Dhansukhlal Maheta & Anr.
v.
High Court of Gujarat & Ors.
(Writ Petition (c) No. 432 of 2023)
17 May 2024
[Dr. Dhananjaya Y. Chandrachud, CJI, J.B. Pardiwala*
and Manoj Misra, JJ.]

Issue for Consideration
(i) What is the scope of principle of the ‘Merit-cum-Seniority’ in
service jurisprudence; and (ii) Whether promotion of Civil Judges
(Senior Division) to the cadre of District Judges in accordance
with Rule 5(1) of the Gujarat State Judicial Service Rules, 2005
and the Recruitment Notice dated 12.04.2022 issued by the High
Court of Gujarat is contrary to the principle of ‘Merit-cum-Seniority’
as laid down in All India Judges’ Association (3).

Headnotes†
Constitution of India – Art. 32 and Art.226 – Maintainability
of the Writ Petition under Article 32 – A preliminary objection
was raised as regards the maintainability of the writ petition
under Article 32 of the Constitution, on the ground that the
petitioners have an efficacious alternative remedy available
to them under Article 226 of the Constitution:
Held: Two judicial officers of the rank of Civil Judge (Senior Division)
governed by the Gujarat State Judicial Service Rules, 2005 have
invoked the jurisdiction under Article 32 of the Constitution – The
availability of an alternative remedy does not in any manner
affect the maintainability of the writ petition under Article 32 of the
Constitution – The rule behind relegating a party to first avail the
alternative remedy before knocking the doors of this Court is a
rule of self-restraint that is exercised by this Court as a matter of
convenience – Further, wherever the facts of the case are not in
dispute, and the issue involves the interpretation of rules which are
of significant importance having a far-reaching effect, it would be
a fit case for this Court to exercise its discretion and entertain the
writ petition under Article 32 even if there is an alternative remedy
available. [Paras 40, 41]

* Author
[2024] 5 S.C.R. 1075

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

Gujarat State Judicial Service Rules, 2005 – The Legislative
History and Scheme of the Gujarat State Judicial Service
Rules, 2005 – discussed.
Gujarat State Judicial Service Rules, 2005 – Rule 5(1) with
Rule 5(3) – Modes of recruitment:
Held: A combined reading of the Rule 5(1) with Rule 5(3) of the
2005 Rules makes it clear that there are three distinct modes of
recruitment to the cadre of District & Sessions Judge which are
as follows: – (I) 65% posts by promotion from the eligible Civil
Judges (Senior Division) having a minimum of two-years of service
on the basis of ‘Merit-cumSeniority’; (II) 10% posts by promotion
from eligible Civil Judges (Senior Division) with a minimum of
five-years of service on basis of merit through a competitive
examination and; (III) 25% posts by direct recruitment from the
eligible members of the Bar on the basis of a written exam and
viva voce. [Para 67]
Service Law – Evolution of the Principles of ‘Merit-cum-
Seniority’ and ‘Seniority-cum-Merit’ in Service Jurisprudence –
discussed.
Service Law – Principle of ‘Seniority-cum-Merit’:
Held: The principle of ‘Seniority-cum-Merit’ postulates that:
(i) Minimum requirement of merit and suitability which is necessary
for the higher post can be prescribed for the purpose of promotion –
(ii) Comparative Assessment amongst the candidates is not
required – (iii) Seniority of a candidate is not a determinative factor
for promotion but has a predominant role – (iv) Upon fulfilling the
minimum qualifications, promotions must be based on inter-se
seniority. [Para 98 (I)]
Service Law – Principle of the ‘Merit-cum-Seniority’:
Held: The principle of ‘Merit-cum-Seniority’ postulates that:
(i) Merit plays a predominant role in and seniority alone cannot be
given primacy; (ii) Comparative Assessment of Merit is a crucial,
though not a mandatory, factor; (iii) Only where merit is equal in
all respects can inter-se seniority be considered – Meaning that
a junior candidate can be promoted over the senior if the junior is
more meritorious. [Para 98 (II)]
Service Law – Principles of ‘Merit-cum-Seniority’ and ‘Seniority-
cum-Merit’ – Nature of these principles:
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Held: The principle of ‘Merit-cum-Seniority’ and ‘Seniority-cum-
Merit’ are a flexible and a fluid concept akin to broad principles
within which the actual promotion policy may be formulated – They
are not strict rules or requirements and by no means can supplant
or take the place of statutory rules or policies that have been
formulated, if any – These principles are dynamic in nature very
much like a spectrum and their application and ambit depends upon
the rules, the policy, the nature of the post and the requirements
of service – The principles applicable to promotion such as the
principle of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ can
best be described as two ends of a spectrum – They are broad
categories or frameworks for promotion and do represent the actual
modalities by which promotions are to take place – It is the rules
and the promotion policy, along with the intention of the legislature
or the selection board, as the case may be, that supplements these
principles and delineates the actual modality of how promotion
is to take place – Through these rules and promotion policy,
the legislature or the selection body specifies the area and the
parameters or the weightage which is to be given to the aspect of
“Merit” and “Seniority” on the said spectrum. [Para 110]
Constitution of India – Art. 235 – High Court as a custodian
of the District Judiciary under Article 235 of the Constitution:
Held: It is clear that when it comes to promotion of judicial officers
of the District Judiciary, the control vests with the High Court under
Article 235 of the Constitution – The High Court being the sole
authority in this regard can clearly lay down rules and policies
pertaining to promotions which includes the power to specify the
criteria and parameters it deems most suitable and appropriate for
the purpose of promotion and the manner in which promotion is
to be made as long as it is within the contours of what has been
laid down in All India Judges’ Association (3). [Para 119]
Service Law – Objectives intended to be achieved through All
India Judges’ Association (3) – Two-fold objectives:
Held: (i) First, to ensure that unlike the traditional promotion policy
under which seniority alone was considered for promotion, a new
policy should be devised under which seniority would be considered
for promotion, but only for those candidates who possessed the
minimum necessary standard of suitability for the post, and;
(ii) Secondly, to prevent loss of motivation amongst the relatively
junior members of the service, a third category for promotion to
[2024] 5 S.C.R. 1077

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

the Higher Judicial Service should be created, wherein promotions
would be given strictly on the basis merit, to be ascertained through
a limited departmental competitive examination – Thus, while the
comparison of inter-se merit to determine the most meritorious
candidates was the procedure to be adopted for filling up the seats
under the newly created category, it was never the intention of
this Court in the aforesaid decision to mandate the comparative
assessment of merit in the category of regular promotions based
on seniority – The only additional requirement which was provided
for by the aforesaid decision for this category of candidates was the
possession of certain minimum objectively determinable standard
of suitability. [Paras 127, 128]
Service Law – Judiciary – Promotion – Introduction of a
suitability test:
Held: The objective sought to be achieved by the introduction of
a suitability test in the regular promotional category was limited
to the assessment of a minimum standard of suitability – It would
be incorrect to say that the marks scored by a candidate in the
suitability test are proportional to the merit of the candidate –
This can be understood with the aid of an illustration – Take a
case wherein the minimum marks required to be obtained in the
suitability test is ‘x’; then for the purpose of 65% promotional
quota, as soon as a candidate obtains ‘x’ marks in the suitability
test, such a candidate becomes eligible for being considered for
promotion in that category subject to their seniority vis-à-vis the
other suitable candidates – It cannot be said that a candidate
who obtains (x + 10) marks is more meritorious or more suitable
than those candidates who obtain ‘x’ or (x + 5) marks in the
suitability test – Every candidate who scores higher than or equal
to ‘x’ marks in the suitability test is considered equally suitable
and equally meritorious for the purpose of 65% promotional
category. [Para 129]
Gujarat State Judicial Service Rules, 2005 – ‘Merit-cum-
Seniority’ in context of:
Held: 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 – The exact modalities of how merit and seniority
are to be apportioned is a legislative function and is to be performed
keeping in mind the unique requirements and circumstances of
1078 [2024] 5 S.C.R.

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the organization – In the instant case, there is no fault with the
promotion process adopted by the High Court of Gujarat as the
same fulfils the twin requirements stipulated in All India Judges’
Association (3) being: – (I) The objective assessment of legal
knowledge of the judicial officer including adequate knowledge
of case law and; (II) Evaluation of the continued efficiency of the
individual candidates – The four components of the Suitability
Test as prescribed under the recruitment notice dated 12.04.2022
comprehensively evaluate (i) the legal knowledge including
knowledge of the case law through the objective MCQ – based
written test AND (ii) the continued efficiency by evaluation of the
ACRs, average disposal and past judgments of the concerned
judicial officer. [Paras 132, 141(D), 141(E)]
Gujarat State Judicial Service Rules, 2005 – Suggestions to
make the suitability test more meaningful:
Held: The High Court of Gujarat is proposed 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 minimum standard to be objectively assessed
by way of a suitability test should be made more efficacious and
productive – The Court suggests the following: (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. [Para 140]
Service Law – Gujarat State Judicial Service Rules, 2005 –
Suitability of each candidate should be tested on their own
merit:
Held: What has been conveyed by this Court in All India Judges’
Association (3) is that the suitability of each candidate should be
tested on their own merit – The aforesaid decision does not speak
about comparative merit for the 65% promotional quota – In other
[2024] 5 S.C.R. 1079

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

words, what is stipulated is the determination of suitability of the
candidates and assessment of their continued efficiency with
adequate knowledge of case law. [Para 141A]
Service Law – Gujarat State Judicial Service Rules, 2005 –
Promotion – 65% promotional quota – Suitability test –
Requisite marks – Merit list:
Held: For the 65% promotional quota this Court in All India Judges’
Association (3) did not state that after taking the suitability test,
a merit list should be prepared and the judicial officers should be
promoted only if they fall in the said merit list – It cannot be said
to be a competitive exam – Only the suitability of the judicial officer
is determined and once it is found that candidates have secured
the requisite marks in the suitability test, they cannot be thereafter
ignored for promotion – However, it is clarified that for the 65%
promotional quota, it is for a particular High Court to prescribe
or lay down its own minimum standard to judge the suitability
of a judicial officer, including the requirement of comparative
assessment, if necessary, for the purpose of determining merit
to be objectively adjudged keeping in mind the statutory rules
governing the promotion or any promotion policy in that regard.
[Paras 141B, 141C]
Service Law – Gujarat State Judicial Service Rules, 2005 –
It was contended that the High Court wrongly subjected
all eligible candidates in the feeder cadre i.e. Civil Judge
(Senior Division) to a process of assessment of a specified
level of minimum merit and then proceeded to prepare the
final select list strictly in accordance with the seniority of
the candidates:
Held: This Court is of the view that if the contention of the petitioners
were to be accepted then it would completely obliterate the fine
distinction between the two categories of promotion in the cadre
of District & Sessions Judge by way of 65% promotion on the
basis of ‘Merit-cum-Seniority’ and 10% promotion strictly on the
basis of merit – In other words, the 65% quota for promotion will
assume the character of the 10% quota for promotion by way of a
departmental competitive examination which is distinct in its nature
since the latter is strictly based on merit. [Para 141F]
Service Law – Gujarat State Judicial Service Rules, 2005 –
Whether promotion of Civil Judges (Senior Division) to the
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cadre of District Judges in accordance with Rule 5(1) of the 2005
Rules and the Recruitment Notice dated 12.04.2022 issued by
the High Court of Gujarat is contrary to the principle of ‘Merit-
cum-Seniority’ as laid down in All India Judges’ Association (3):
Held: There was no fault with the promotion process adopted by
the High Court of Gujarat as the same fulfils the twin requirements
stipulated in paragraph 27 of All India Judges’ Association (3)
being: – (I) The objective assessment of legal knowledge of the
judicial officer including adequate knowledge of case law and;
(II) Evaluation of the continued efficiency of the individual
candidates – The four components of the Suitability Test as
prescribed under the recruitment notice dated 12.04.2022
comprehensively evaluate (i) the legal knowledge including
knowledge of the case law through the objective MCQ-based
written test AND (ii) the continued efficiency by evaluation of the
ACRs, average disposal and past judgments of the concerned
judicial officer – The impugned final Select List dated 10.03.2023
is not contrary to the principle of ‘Merit-cum-Seniority’ as stipulated
in Rule 5(1)(I) of the 2005 Rules. [Paras 141D, 141E, 143]

Case Law Cited
All India Judges’ Association (3) v. Union of India & Ors. [2002]
2 SCR 712 : (2002) 4 SCC 247; Mohammed Ishaq v. S.
Kazam Pasha & Anr. [2009] 7 SCR 1098 : (2009) 12 SCC 748;
Maharashtra State Judicial Service Assn. & Ors. v. High Court
of Judicature at Bombay & Ors. [2002] 1 SCR 1125 : (2002) 3
SCC 244; Malik Mazhar Sultan & Anr. (1) v. U.P. Public Service
Commission [2023] 12 SCR 682 : (2006) 9 SCC 507; All India
Judges’ Association (4) v. Union of India (2010) 15 SCC 170; Malik
Mazhar Sultan & Anr. (3) v. U.P. Public Service Commission &
Ors. (2009) 17 SCC 530; State of Kerala & Anr. v. N.M. Thomas &
Ors. [1976] 1 SCR 906 : (1976) 2 SCC 310; Jagathigowda, C.N.
& Ors. v. Chairman, Cauvery Gramina Bank & Ors. [1996] Suppl.
4 SCR 190 : (1996) 9 SCC 677; Rajendra Kumar Srivastava &
Ors. v. Samyut Kshetriya Gramin Bank & Ors. [2009] 15 SCR
936 : (2010) 1 SCC 335; B.V. Sivaiah & Ors. v. K. Addankl Babu
& Ors. [1998] 3 SCR 782 : (1998) 6 SCC 720; K. Samantaray v.
National Insurance Co. Ltd. [2003] Suppl. 3 SCR 669 : (2004) 9
SCC 286; Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya
Gramin Bank & Ors. [2006] Supp. 8 SCR 760 : (2006) 12 SCC
574; Shriram Tomar & Anr. v. Praveen Kumar Jaggi & Ors. [2019]
[2024] 5 S.C.R. 1081

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

6 SCR 590 : (2019) 5 SCC 736; Madan Mohan Choudhary v.
State of Bihar [1999] 1 SCR 596 : (1999) 3 SCC 396; High Court
of Judicature for Rajasthan v. P.P. Singh & Anr. [2003] 1 SCR
593 : (2003) 4 SCC 239 – relied on.
Sujata Kohli v. Registrar General, High Court of Delhi and Ors.
[2020] 9 SCR 361 : (2020) 14 SCC 58; Dr. Kavita Kamboj v. High
Court of Punjab and Haryana & Ors. [2024] 2 SCR 1136 : (2024)
SCC OnLine SC 254; Rupa Rani Rakshit & Ors. v. Jharkhand
Gramin Bank [2009] 15 SCR 1133 : (2010) 1 SCC 345; All
India Judges’ Association (1) v. Union of India [1991] Suppl.
2 SCR 206 : (1992) 1 SCC 119; All India Judges’ Association
(2) v. Union of India [1993] Supp. 1 SCR 749 : (1993) 4 SCC
288; High Court of Calcutta v. Amal Kumar Roy [1963] 1 SCR
437; K.K. Parmar v. High Court of Gujarat [2006] Supp. 2 SCR
565 : (2006) 5 SCC 789; Kartar Kaur v. State (1967) SLR 34;
State of Mysore v. Syed Mahmood [1968] 3 SCR 363; Central
Council for Research in Ayurveda and Siddha and Anr. v. Dr.
K. Santhakumari [2001] 3 SCR 519 : (2001) 5 SCC 60; Union
of India and Ors. v. Lt. Gen. Rajendra Singh Kadyan & Anr.
[2000] Supp. 1 SCR 722 : (2000) 6 SCC 698; State of U.P. v.
Jalal Uddin & Ors. [2004] Supp. 5 SCR 92 : (2005) 1 SCC 169;
Haryana State Electronics Development Corporation Ltd. & Ors.
v. Seema Sharma & Ors. [2009] 7 SCR 662 : (2009) 7 SCC 311;
Palure Bhaskar Rao & Ors. v. P. Ramaseshaiah & Ors. [2017] 3
SCR 226 : (2017) 5 SCC 783; State of Mysore v. C. R. Seshadri
& Ors. [1974] 3 SCR 87 : AIR 1974 SC 460; Ambica Quarry
Works v. State of Gujarat [1987] 1 SCR 562 : (1987) 1 SCC
213; Bharat Petroleum Corporation Ltd. v. NR Vairamani [2004]
Supp. 4 SCR 923 : (2004) 8 SCC 579; Municipal Corporation
Delhi v. Mohd Yasin [1983] 2 SCR 999 : (1983) 3 SCC 229;
Thampanoor Ravi v. Charupara Ravi [1999] Supp. 2 SCR 419 :
(1999) 8 SCC 74 – referred to.
R. v. Inland Revenue Commissioners, ex parte M.F.K Underwriting
Agents Ltd. [1990] 1 WLR 1545 – referred to.

Books and Periodicals Cited
Shetty Commission on Judicial Reforms; First Law Commission
of India (14th Report in the year 1958); Henry Campbell Black,
Black’s Law Dictionary, p.1528 (6 th Edn., 1968); H. Gerth and
C.W. Mills, From Max Weber: Essays in Sociology, 199, 202
(Oxford University Press, New York, 1958); H. Eliot Kaplan, The
1082 [2024] 5 S.C.R.

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Law of Civil Services (New York University Press, Mathew Bender
& Company, New York, 1958); Elman, B.A., Political, social, and
cultural reproduction via civil service examinations in late imperial
China, 50(1) Journal of Asian Studies, pp.7-28 (1991); Jenifer Hart,
The genesis of the Northcote – Trevelyan report, in Studies in the
growth of nineteenth century government pp. 63-81 (Ed. Gillian
Sutherland, Routledge & Kegan Paul, London, 1972); Kaplan,
N.I., A changing culture of merit: French competitive examinations
and the politics of selection, pp. 1750-1820 (Columbia University
Press, 1999); The Macaulay Committee’s Report on the Indian
Civil Service 1854; History of the Commission, Union Public
Service Commission; S. REP. No. 969; recited from O’Rourke,
1993, p.344 – referred to.

List of Acts
Constitution of India; Gujarat State Judicial Service Rules, 2005.

List of Keywords
Merit; Seniority; Promotion; Promotion process; Article 32 of the
Constitution; Article 226 of the Constitution; Efficacious alternative
remedy; Rule of self-restraint; Interpretation of rules; Issue having
far-reaching effect; Discretion of the Court; Legislative History and
Scheme of the Gujarat State Judicial Service Rules, 2005; Rule 5(1)
of the Gujarat State Judicial Service Rules, 2005; Rule 5(3) of the
Gujarat State Judicial Service Rules, 2005; Modes of recruitment;
Principle of Merit-cum-Seniority; Principle of Seniority-cum-Merit;
Article 235 of the Constitution; High Court as a custodian of the
District Judiciary; Twin requirements stipulated in All India Judges’
Association (3); Suitability test; Basis of suitability test; Objective
assessment of legal knowledge; Evaluation of the continued
efficiency; Enhancing the minimum specified threshold of marks in
suitability test; Interview or Viva Voce in suitability test; Evaluation
of judgments delivered by the judicial officer in suitability test;
Marks for seniority at the stage of suitability test; 65% promotion
on the basis of ‘Merit-cum-Seniority’; 10% promotion strictly on
the basis of merit; Statutory rules governing the promotion or any
promotion policy.

Case Arising From
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 432 of 2023
(Under Article 32 of The Constitution of India)
[2024] 5 S.C.R. 1083

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

Appearances for Parties
R. Basant, P.S. Patwalia, Sr. Advs., Vivek Jain, Ms. Suchitra Kumbhat,
Akshay Sahay, Kishan Chakawala, Rajat Jain, Sadiq Noor, Mehul
Prasad, Purvish Jitendra Malkan, Advs. for the Petitioners.
V. Giri, Dushyant Dave, Shyam Divan, Sr. Advs., Ms. Vishakha,
Ms. Vishwaja Rao, Shashank Shekhar Singh, Akshat Malpani, Ms.
Ayushi Gaur, Sandeep Kumar Jha, Ms. Mayuri Raghuvanshi, Vyom
Raghuvanshi, Ms. Akanksha Rathore, Puneet Jain, Ms. Deepanwita
Priyanka, Jayesh Gaurav, Monarch K. Pandya, Ishwar Chandra
Roy, Ms. Diksha Ojha, Ranjan Nikhil Dharnidhar, Ms. Nidhi Khanna,
Sudipto Sircar, Rajeev Kumar Bansal, Madan Lal Daga, Parvinder,
Shekher Kaushik, Ganesh Barowalia, Vidya Sagar, Rajesh Sonthalia,
Kamal Mohan Gupta, Aditya Choksi, Arpit Gupta, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided in the
following parts: -
INDEX*

A. FACTUAL MATRIX ................................................................. 3
i. Method of Promotion followed by the High Court of
Gujarat ............................................................................... 10
B. REFERENCE ORDER .......................................................... 12
C. SUBMISSIONS ON BEHALF OF THE PETITIONERS .......... 14
D. SUBMISSIONS ON BEHALF OF THE HIGH COURT .......... 16
E. SUBMISSIONS ON BEHALF OF THE PROMOTED
CANDIDATES ......................................................................... 17
F. POINTS FOR DETERMINATION ........................................... 20
G. ANALYSIS .............................................................................. 20
i. Maintainability of the present Writ Petition under
Article 32 ........................................................................... 20

* Ed. Note: Pagination as per the original Judgment.
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ii. The Legislative History and Scheme of the Gujarat
State Judicial Service Rules, 2005 ............................... 23
a. Shetty Commission on Judicial Reforms and the
Decision of this Court in All India Judges’ Association
(3) ................................................................................ 23
b. Relevant Statutory Provisions of the Gujarat State
Judicial Service Rules, 2005 ...................................... 34
iii. Evolution of the Principles of ‘Merit-cum-Seniority’
and ‘Seniority-cum- Merit’ in Service Jurisprudence 38
a. Concept of Promotion: The meaning and origin of
seniority and merit as parameters .............................. 38
b. Principle of ‘Merit-cum-Seniority’ and ‘Seniority-cum-
Merit’ in Service Jurisprudence ................................... 44
c. ‘Hybrid-Dynamic Mode of Promotion’ in Service
Jurisprudence ............................................................... 56
d. High Court as a custodian of the District Judiciary
under Article 235 of the Constitution .......................... 64
iv. What is ‘Merit-cum-Seniority’ for the purpose of
Promotion to the cadre of District & Sessions Judges? 67
a. Intention behind the decision in All India Judges’
Association (3) .............................................................. 67
H. FEW SUGGESTIONS TO MAKE THE SUITABILITY TEST
MORE MEANINGFUL ............................................................ 80
I. CONCLUSION ........................................................................ 81

1. Two judicial officers of the rank of Civil Judge (Senior Division)
governed by the Gujarat State Judicial Service Rules, 2005 (for
short, the “2005 Rules”) have invoked the jurisdiction of this Court
under Article 32 of the Constitution. Their grievance against the
High Court of Gujarat is that it erroneously applied the principle of
‘Seniority-cum-Merit’ in the recruitment undertaken by it in the year
2022 for promotion of Civil Judges (Senior Division) to the post of
Additional District Judge against 65% quota, though Rule 5(1) of
the 2005 Rules stipulates that the promotion shall be based on the
principle of ‘Merit-cum-Seniority’. In other words, it is contended that
the High Court wrongly subjected all eligible candidates in the feeder
cadre i.e., Civil Judge (Senior Division) to a process of assessment
of a specified level of minimum merit and then proceeded to prepare
[2024] 5 S.C.R. 1085

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

the final Select List strictly in accordance with the seniority of the
candidates. This according to the petitioners is nothing but ‘Seniority-
cum-Merit’.
A. FACTUAL MATRIX
2. The High Court of Gujarat issued an advertisement/recruitment notice
dated 12.04.2022 notifying a total of 68 vacancies in the cadre of
District Judges for promotion of Civil Judges (Senior Division) against
the 65% quota on the basis of ‘Merit-cum-Seniority’ and passing a
Suitability Test as envisaged under Rule 5(1)(I) of the 2005 Rules.
The said advertisement/recruitment notice reads as under: -
“HIGH COURT OF GUJARAT AT SOLA,
AHMEDABAD
Website: www.gujarathighcourt.nic.in AND https://hc-
ojas.gujarat.gov.in
NO.RC/1250/2022
RECRUITMENT NOTICE - DISTRICT JUDGE (65%)
PROMOTION TO THE CADRE OF DISTRICT JUDGE (65%)
FROM AMONGST THE SENIOR CIVIL JUDGES ON THE
BASIS OF PRINCIPLE OF MERIT-CUM-SENIORITY AND
PASSING A SUITABILITY TEST.
1. VACANCIES AND PAY-SCALE :
(i) In view of the guidelines of the Hon’ble Supreme Court in
the case of Malik Mazhar Sultan & Anr. Vs. UP Public
Service Commission & Ors. and The Gujarat State
Judicial Service Rules, 2005, as amended from time to
time, The High Court of Gujarat has decided to fill up 68
(53+15) vacancies in the cadre of District Judges (65%)
by promotion from amongst us the Senior Civil Judges
(including ad-hoc Additional District Judges) having not
less than two years of qualifying service in that cadre
as on 25/03/2022, in the pay-scale of Rs. 51650-63260
plus Allowances as admissible under the Rules.
*15 unfilled vacancies of 10% quota of year-2020
are to be filled up by regular promotion in view of
1086 [2024] 5 S.C.R.

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Judgment dated 09.12.2021 of the High Court of
Gujarat (Coram: - Honourable Ms. Justice Sonia
Gokani and Honourable Mr. Justice Rajendra M.
Sareen delivered in SCA/7915/2020 with SCA/13631
& 13458/2020 and by operation of proviso to Rule
5(1)(ii) of the Gujarat State Judicial Service Rules,
2005 amended by Notification dated 23.06.2011.
(ii) The High Court reserves its right to alter the number of
vacancies.
(iii) The List showing eligible Senior Civil Judges (including
ad-hoc Additional District Judges) included in the zone of
consideration for being considered for promotion to the
cadre of District Judges (65%) is placed on the High Court
website and HC-OJAS Portal along with this Notice.
2. SCHEME FOR PROMOTION :
Following are the Four Components for assessing the suitability
of a Judicial Officer for promotion.

Sr. Components of Suitability Test Marks
No
1. Written Test (Objective Type - MCQs) 100
2. Examination and Evaluation of Annual 20
Confidential Reports for last five years
3. Assessment of Average Disposal of 20
last five years of the Judicial Officer
concerned.
4. Evaluation of Judgments delivered by 60
the Judicial Officer concerned during the
period of last one year.*

*Due to unprecedented time of COVID-19 pandemic in Year
2020 & 2021, the Subordinate Courts in the state were not
functioning regularly. Hence, this time round, the Hon’ble
Committee has decided for the instant Promotion Process to
call upon the requisite Four Judgments rendered by the Officer
concerned during the period between 01/01/2020 to 31/12/2021.
However, this should not be treated as a precedent in upcoming
Promotion Process.
[2024] 5 S.C.R. 1087

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

3. Written Test (Objective Type - MCQs) :
(i) The Written Test (Objective Type - MCQs) shall consist
of 01 (One) Paper of 100 Marks of duration of 02 Hours
consisting of Objective Type Multiple Choice Questions
(MCQs) each of 01 Mark. There will be no Negative
marking system. The subject would be as under:
Sr. No Subject Marks
1. Legal Knowledge [Detailed Syllabus 50
attached herewith at Annexure-‘A’]
2. Administrative Knowledge [GCS Rules 25
2002, Civil Manual, Criminal Manual, etc.]
3. General Knowledge & Aptitude Test [Test 25
of Reasoning, Numerical & Mental Ability
& Psychological Test, etc.]
(ii) The Written Test (Objective Type - MCQs) shall be
conducted on OMR Sheet* or by any other mode that
would be decided by the High Court later on.
*The OMR Sheets of the Written Test (Objective Type -
MCQs) will be assessed/evaluated by the Computer as per
entries made on OMR Sheet. As the evaluation is being
done on the Computer by Scanning, there is no human
intervention and hence, queries relating to rechecking of
the OMR Sheets, subsequent to the Written Test (Objective
Type - MCQs), will not be entertained by the High Court
(iii) The Language of the Question Paper will be English.
(iv) Out of the abovementioned Four Components of Suitability
Test, the Written Test (Objective Type - MCQs) will be
conducted first. Nonetheless mere passing of Written Test
(Objective Type - MCQs) by the Judicial Officers would
not give him/her right of having secured the position in
the Select List. It will be subject to passing of other 03
(Three) components as well.
(v) ACR, Disposal and Judgments of only those Judicial
Officers who will secure minimum 40% Marks in Written
Test (Objective Type - MCQs), will be called for after the
declaration of the result of Written Test (Objective Type -
MCQs).
1088 [2024] 5 S.C.R.

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4. ELIGIBILITY FOR PROMOTION :
The Judicial Officer, who obtains minimum 40% Marks in each
Component and minimum 50% Marks in aggregate in the Grand
Total of all Four Components, shall be eligible for being included
in the Select List for promotion.
5. GENERAL INSTRUCTIONS :
(i) The date and venue of the Written Test (Objective Type -
MCQs) will be declared by the High Court in due course.
(ii) The eligible Judicial Officers may download their
E-call letter from the High Court websites viz. www.
gujarathighcourt.nic.in and https://hc-ojas.gujarat.gov.in,
as and when the same is made available by the High
Court on the aforesaid websites.
(iii) The Judicial Officer attending the Written Test (Objective
Type - MCQs) may be treated as on duty and may be
admissible for TA/DA as applicable.
(iv) Result of the Written Test (Objective Type - MCQs) will
be made available on the High Court websites and/or by
any other mode that may be decided by the High Court.
(v) The Marks of Written Test (Objective Type - MCQs) would
be communicated to all the Judicial Officers, whereas,
the Marks of other 03 Components along-with the Total
Marks obtained by the concerned, would be provided
to only those who qualify in the Written Test (Objective
Type - MCQs).
Such Marks shall be communicated by providing a link to a
webpage on the HC-OJAS Portal with individual password
(OTP – One Time Password) via SMS on his/her Registered
Mobile Number, after the conclusion of the Selection Process
High Court of Gujarat,
Sola, Ahmedabad - 380 060.
Date: 12/04/2022 Sd/-
Registrar
(Recruitment and Finance)
[2024] 5 S.C.R. 1089

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

Syllabus For the LEGAL KNOWLEDGE of the Written Test
(Objective Type - MCQs) :
(a) ͢ The Constitution of India
͢ The Code of Civil Procedure, 1908,
͢ The Transfer of Property Act, 1882,
͢ The Specific Relief Act, 1963,
͢ The Indian Partnership Act, 1932,
͢ The Indian Contract Act, 1872,
͢ The Sale of Goods Act, 1930,
͢ The Limitation Act, 1963,
͢ The Arbitration and Conciliation Act, 1996,
͢ The Motor Vehicles Act, 1988,
͢ The Commercial Courts Act, 2015
͢ The Family Courts Act, 1984,
͢ The Environment (Protection) Act, 1986,
͢ The Wild Life (Protection) Act, 1972,
͢ The Indian Penal Code, 1860,
͢ The Code of Criminal Procedure, 1973,
͢ The Indian Evidence Act, 1872,
͢ The Narcotic Drugs & Psychotropic Substances
Act, 1985,
͢ The Negotiable Instruments Act, 1881,
͢ The Protection of Children from Sexual Offence
Act, 2012,
͢ The Juvenile Justices (Care & Protection of
Children) Act, 2015,
͢ The Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989,
͢ The Prevention of Corruption Act, 1988
1090 [2024] 5 S.C.R.

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͢ The Electricity Act, 2003,
͢ The Protection of Women from Domestic
Violence Act, 2005
͢ The Immoral Traffic (Prevention) Act, 1956
͢ The Information Technology Act, 2000
͢ The Indecent Representation of Women
(Prohibition) Act, 1986
(b) Legal Maxims
(c) Medical Jurisprudence
(d) Jurisprudence and Legal Phraseology”
3. The High Court along with the aforesaid advertisement/recruitment
notice, also issued a list of 205 judicial officers in the cadre of Civil
Judge (Senior Division) i.e., the feeder cadre, falling under the ‘Zone
of Consideration’ for the aforesaid purpose of filling up the vacancies
in the cadre of District Judges as against 65% quota.
4. The High Court prepared the list of 205 candidates falling within
the zone of consideration by including the senior-most Civil Judges
(Senior Division) not exceeding three-times the notified vacancies.
In other words, the zone of consideration only included the 205
senior-most Civil Judges (Senior Division).
5. As per the advertisement/recruitment notice dated 12.04.2022, the
suitability of the aforesaid 205 candidates falling within the zone of
consideration, for the purpose of promotion, was to be assessed on
the basis of four components which are being reproduced hereunder: -

Sr. No. Components of Suitability Test Marks
1. Written Test (Objective Type – MCQs) 100
2. Examination and Evaluation of Annual Confidential 20
Reports for last five years.
3. Assessment of Average Disposal of last five years 20
of the Judicial Officer concerned.
4. Evaluation of Judgments delivered by the Judicial 60
Officer concerned during the period of last one
year.
[2024] 5 S.C.R. 1091

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

6. The aforesaid advertisement/recruitment notice dated 12.04.2022
further stipulated that all those judicial officers who obtain a minimum
40% marks in each of the abovementioned component and a minimum
aggregate of 50% marks in all four components shall be eligible for
being included in the Select List for promotion.
7. Pursuant to the aforesaid, the Written Test (Objective Type – MCQs)
was conducted by the High Court and out of 205 candidates, a total
of 175 judicial officers cleared the written test i.e., all those who
were able to secure a minimum of 40% marks. Thereafter, the High
Court called for the month-wise list of the judgments disposed of
and the annual confidential reports (ACRs) of all 175 candidates
who qualified.
8. After the evaluation of the ACRs, judgments and disposal rates, a total
of 149 judicial officers were found to be eligible for promotion as they
had secured a minimum 40% marks in each of the abovementioned
component and a minimum aggregate of 50% marks in all the four
components of the suitability test.
9. The High Court thereafter proceeded to prepare the final Select List
dated 10.03.2023 wherein the seniormost 68 candidates amongst
the aforementioned 149 eligible candidates were given promotion
to the post of District Judge.
10. In such circumstances referred to above, the petitioners are here
before this Court with the present petition under Article 32 of the
Constitution.
i. Method of Promotion followed by the High Court of Gujarat.
11. For the better adjudication of the issues involved in the case at
hand, it would be necessary to delineate the step-wise process of
promotion undertaken by the High Court of Gujarat for the purpose
of preparing the final Select List.
12. The process, as explained by the High Court in its counter affidavit
and additional affidavit is as under: -

1. Total number of Civil Judges (Senior Division) in 444
Gujarat.
2. Civil Judges (Senior Division) who fulfilled the eligibility 417
criteria of a minimum of two-years of qualifying service.
1092 [2024] 5 S.C.R.

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3. Senior-most of the Civil Judges (Senior Division) falling 205
under the zone of consideration as per 1:3 ratio.

4. Civil Judges (Senior Division) who appeared for the 198
Suitability Test (MCQ’s with no negative marking).
(Seven candidates chose not to appear for the
suitability test)
5. Civil Judges (Senior Division) who secured 40% marks 175
in the Suitability Test (MCQs with no negative marking).
6. Total number of Civil Judges (Senior Division) who 149
secured total of 50% marks and a minimum 40%
marks in all four components being the Written Test,
evaluation of ACRs, assessment of average disposal
and evaluation of Judgments.
7. Select List as per the notified vacancy prepared on 68
the basis of seniority.

B. REFERENCE ORDER
13. The present writ petition was earlier heard by a two-Judge Bench
of this Court wherein it was prima facie observed that in All India
Judges’ Association (3) v. Union of India & Ors. reported in (2002)
4 SCC 247 while emphasizing on the need for merit-based criteria
for promotion in the cadre of Higher Judicial Service, this Court had
held that the promotion to the post of District Judge shall be on the
basis of ‘Merit-cum-Seniority’.
14. This Court further observed that the principle of ‘Merit-cum-Seniority’
lays greater emphasis on merit, and seniority plays a less significant
role. Therefore, seniority should be considered only when merit and
ability are equal.
15. This Court prima facie opined that the final Select List dated
10.03.2023 could be said to be in contravention of the principle of
‘Merit-cum-Seniority’ as envisaged in the rules and the decision in
All India Judges’ Association (3) (supra). However, in view of the
importance of the matter and the observations made in All India
Judges’ Association (3) (supra), the matter was referred to the
Bench of Hon’ble the Chief Justice of India. The relevant observations
read as under: -
[2024] 5 S.C.R. 1093

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

“8.1 It is also required to be noted that even as per the
Recruitment Notice – District Judge (65%), the promotion
to the cadre of District Judge (65%) from amongst the
Senior Civil Judges shall be on the basis of principle
of merit-cum-seniority and passing a suitability test.
The suitability of a judicial officer for promotion is also
provided in the Recruitment Notice, which consists of four
components reproduced hereinabove. Thus, as per the
statutory Rules and even as per the Recruitment Notice,
the promotion to the cadre of District Judge (65%) shall
be on the basis of principle of merit-cum-seniority and
passing a suitability test. At this stage, it is required to
be noted that the Rules, 2005 further amended in the
year 2011, have been framed by the High Court pursuant
to the directions issued by this Court in the case of All
India Judges’ Association and Ors. (supra). It is required
to be noted that prior to the decision of this Court in the
case of All India Judges’ Association and Ors. (supra),
the promotion in the cadre of Higher Judicial Service,
i.e., District Judges and Additional District Judges
were given on the basis of principle of seniority-cum-
merit. Emphasising the need for merit-based criteria for
promotion in the cadre of Higher Judicial Service, i.e.,
District Judges and Additional District Judges [...]
xxx xxx xxx
8.8 The law on the principle of “merit-cum-seniority is
by now, settled by this Court in a catena of decisions.
As observed, while applying the principle of “merit-cum-
seniority”, greater emphasis is given on merit and ability
and seniority plays a less significant role. As observed,
while applying the principle of “merit-cum-seniority”, the
seniority is to be given weight only when merit and ability
are approximately equal.
xxx xxx xxx
9. Thus, we are more than satisfied that the impugned
Select List dated 10.03.2023 issued by the High Court
and the subsequent Notification dated 18.04.2023
issued by the State Government granting promotion
1094 [2024] 5 S.C.R.

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to the cadre of District Judge are illegal and contrary
to the relevant Rules and Regulations and even to the
decision of this Court in the case of All India Judges’
Association and Ors. (supra). Therefore, we are more
than prima facie satisfied that the same as such are not
sustainable. Though, we were inclined to dispose of the
writ petition finally, however, as Shri Dushyant Dave,
learned Senior Advocate appearing on behalf of some of
the respondents - promotees has prayed not to dispose
of the writ petition finally and, therefore, may consider
the question of interim relief, we are not disposing of
the writ petition finally. […]
10. Looking to the importance of the matter and the
observations made by this Court in the case of All
India Judges’ Association and Ors. (supra), pursuant to
which the High Court has amended the Rules and the
Regulations, we are of the opinion that let the matter be
heard by the Bench headed by Hon’ble the Chief Justice of
India, however, subject to and after obtaining appropriate
orders from the Hon’ble the Chief Justice of India on the
administrative side. The Registry is directed to notify the
present writ petition for final hearing on 08.08.2023.”
(Emphasis supplied)
16. Accordingly, the present writ petition came to be referred to this
Bench and was accordingly taken up for hearing.
C. SUBMISSIONS ON BEHALF OF THE PETITIONERS
17. Mr. P.S. Patwalia, learned Senior Counsel appearing for the petitioners
submitted that the statutory rules as well as the decision in All India
Judges’ Association (3) (supra) stipulate that promotion to the cadre
of District Judges against the 65% quota has to be on the basis of
the principle of ‘Merit-cum-Seniority’. Although the High Court has
used the nomenclature ‘Merit-cum-Seniority’ yet the method ultimately
followed for the purpose of promotion to the cadre of District Judge
is nothing but ‘Seniority-cum-Merit’.
18. He further submitted that the High Court in its methodology subjected
all eligible candidates in the feeder cadre to a process of assessment
of a specified minimum necessary merit and then proceeded to
[2024] 5 S.C.R. 1095

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

promote the candidates found possessing the minimum requisite
merit strictly in the order of seniority. He submitted that the said
method is nothing but ‘Seniority-cum-Merit’.
19. Finally, Mr. Patwalia submitted that where promotion is on the basis
of ‘Merit-cum-Seniority’, seniority has to be considered only in the
event merit is equal in all respects. In other words, seniority should
be considered only if there is a tie between the candidates on their
individual merit.
20. Mr. R. Basant, learned Senior Counsel submitted that in the procedure
that came to be followed by the High Court for promotion, seniority
has been applied and given effect twice - once at the stage of
preparation of the zone of consideration and then again at the stage
of preparing the final Select List.
21. He further submitted that by applying seniority at the last stage of
preparing the final Select List, the principle of ‘Merit-cum-Seniority’
has been given a go-by and instead ‘Seniority-cum-Merit’ has been
applied.
22. He also submitted that in cases of promotion on the principle of
‘Merit-cum-Seniority’, there is always an element of comparative
merit and the promotion must be as per the inter-se merit of the
persons who obtained the minimum marks. In this regard, strong
reliance has been placed on the decisions of this Court in Rupa
Rani Rakshit & Ors. v. Jharkhand Gramin Bank reported in (2010)
1 SCC 345 and in Dr. Kavita Kamboj v. High Court of Punjab
and Haryana & Ors. reported in 2024 SCC OnLine SC 254.
23. He further submitted that ‘Merit-cum-Seniority’ is not a vague literary
term, but carries a specific meaning in service jurisprudence. He
submitted that the decision in All India Judges’ Association (3)
(supra) consciously substituted the earlier criteria of ‘Seniority-cum-
Merit’ with ‘Merit-cum-Seniority’.
24. In the last, Mr R. Basant submitted that this Court in a plethora of its
decisions has consistently held that where a minimum benchmark
is laid down and candidates having secured the minimum required
marks are promoted on the basis of the seniority irrespective of the
individual marks secured by them, it is an instance of ‘Seniority-
cum-Merit’.
1096 [2024] 5 S.C.R.

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D. SUBMISSIONS ON BEHALF OF THE HIGH COURT
25. Mr. V. Giri, learned Senior Counsel appearing for the High Court of
Gujarat submitted that ‘Merit-cum-Seniority’ should not be conflated
with Merit and that there is a clear distinction between the two
concepts. He submitted that whilst merit is concerned only with the
grade/credit of the candidate, the former not only checks the merit
but also lays emphasis on seniority.
26. He submitted that if the interpretation of ‘Merit-cum-Seniority’ as
canvassed by the petitioners is accepted, then the entire process
of promotion would become solely based on merit and the aspect
of seniority would be completely obliterated from the principle of
‘Merit-cum-Seniority’.
27. He further submitted that doing so would have a far-reaching effect.
The same would result in an amalgamation of the promotion process
against 65% posts on the basis of ‘Merit-cum-Seniority’ and the
process against 10% posts on the basis of strict merit in the cadre of
District Judges and would completely do away with the fine distinction
between the two modes of promotion.
28. Finally, Mr. Giri submitted that the High Court has been following
the same methodology since 2011.
E. SUBMISSIONS ON BEHALF OF THE PROMOTED
CANDIDATES
29. Mr. Dushyant Dave, learned Senior Counsel appearing for judicial
officers who found place in the final Select List submitted that the writ
petition under Article 32 ought not to be entertained as the petitioners
have an alternative efficacious remedy of filing a writ petition under
Article 226 of the Constitution before the High Court.
30. He submitted that in All India Judges’ Association (3) (supra) the
principle of ‘Merit-cum-Seniority’ and Suitability Test was provided
only to objectively ascertain a minimum standard of merit for the
purpose of promotion to the Higher Judicial Services in the cadre
of District & Sessions Judge.
31. Mr. Dave submitted that merely having scored a few marks more
than the other candidates is neither an indication of being tangibly
more meritorious nor a cogent reason to completely negate the
length of service of the senior candidates. He submitted that if the
[2024] 5 S.C.R. 1097

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

interpretation as canvassed by the petitioners is accepted, it would
cause undue hardship and result in unjust treatment to his clients
whose names were included in the final Select List, as they would
end up losing their precious years of seniority in service only on
account of having obtained a few marks lesser compared to the
petitioners.
32. Ms. Mayuri Raghuvanshi, learned Counsel appearing for some of the
respondents submitted that the principle of ‘Merit-cum-Seniority’ does
not mean that the length of service or seniority has no relevance.
She submitted that the marks secured in the written examination and
other tests are not indicative of merit as the marks may be obtained
even without possessing other important qualities such as practical
experience or by cramming.
33. She further submitted that the various decisions on the principle of
‘Merit-cum-Seniority’ as relied upon by the petitioners do not deal
with judicial services and have not been delivered in the context of
promotion of Civil Judges (Senior Division) to the cadre of District
Judge. It was submitted that ‘Merit-cum-Seniority’, as stipulated in
the 2005 Rules, should be read in line with the observations in All
India Judges’ Association (3) (supra).
34. Learned counsel further submitted that the reliance placed by the
petitioners on the process of promotion followed by the High Court
of Jharkhand and High Court of Calcutta is absolutely misplaced,
as the statutory rules therein are not pari-materia to the 2005 Rules.
35. Finally, Ms. Raghuvanshi submitted that her clients whose names
have been included in the final Select List, had also participated in
the promotion process undertaken in the year 2020. Although her
clients had scored higher marks compared to the other candidates
in the 2020 recruitment process, yet they were not promoted as
they were comparatively junior to the other officers. She submitted
that the process which was followed by the High Court applying
the principle of ‘Merit-cum-Seniority’ has been followed consistently
since 2011. She submitted that deviating from the process as
followed by the High Court will result in inequitable and unjust
repercussions, as her clients who lost out on promotions in the
previous recruitment process because of being relatively junior
would again end up losing out on their promotions in this process
despite being relatively senior.
1098 [2024] 5 S.C.R.

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F. POINTS FOR DETERMINATION
36. Having heard the learned counsels appearing for the parties and
having gone through the materials on record, the two pivotal questions
that fall for our consideration are as under: -
I. What is the scope of principle of the ‘Merit-cum-Seniority’ in
service jurisprudence; and
II. Whether promotion of Civil Judges (Senior Division) to the cadre
of District Judges in accordance with Rule 5(1) of the 2005
Rules and the Recruitment Notice dated 12.04.2022 issued by
the High Court of Gujarat is contrary to the principle of ‘Merit-
cum-Seniority’ as laid down in All India Judges’ Association
(3) (supra).
G. ANALYSIS
i. Maintainability of the present Writ Petition under Article 32.
37. At the outset, a preliminary objection was raised as regards the
maintainability of the writ petition under Article 32 of the Constitution,
on the ground that the petitioners have an efficacious alternative
remedy available to them under Article 226 of the Constitution.
38. In Mohammed Ishaq v. S. Kazam Pasha & Anr. reported in (2009)
12 SCC 748 this Court held that where Article 32 has been invoked,
even where an alternative remedy exists, relegating the parties to
avail the same is discretionary and a matter of convenience, and
the same by no stretch restrains this Court to entertain the same.
The relevant observations read as under: -
“23. On the preliminary issue of maintainability of the
present writ petition, it is well-settled position of law that
simply because a remedy exists in the form of Article 226 of
the Constitution for filing a writ in the High Court concerned,
it does not prevent or place any bar on an aggrieved
person to directly approach the Supreme Court under
Article 32 of the Constitution. It is true that the Court has
imposed a self-restraint in its own wisdom on the exercise
of jurisdiction under Article 32 where the party invoking the
jurisdiction has an effective, adequate alternative remedy
in the form of Article 226 of the Constitution. However, this
[2024] 5 S.C.R. 1099

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

rule which requires the exhaustion of alternative remedies
is a rule of convenience and discretion rather than a rule
of law. At any rate it does not oust the jurisdiction of this
Court to exercise its writ jurisdiction under Article 32 of the
Constitution. We, therefore, reject the preliminary objection
raised and proceed to examine the contentions raised in
the writ petition on merits.”
(Emphasis supplied)
39. In Maharashtra State Judicial Service Assn. & Ors. v. High Court
of Judicature at Bombay & Ors. reported in (2002) 3 SCC 244 this
Court held that where the issue pertained only to the interpretation
of the relevant rules and there was no dispute as regards the facts
of the case by either side, the same could be entertained under
Article 32 even though the alternative remedy under Article 226 was
available. The relevant observations read as under: -
“1. [...] On behalf of the direct recruit respondents, a
preliminary objection had been taken by Shri M.L. Verma
that the dispute being one of inter se seniority within a
cadre, the Court ought not to entertain a petition under
Article 32, as the parties were entitled to approach the
High Court under Article 226 against the administrative
decision of the Bombay High Court. We have no doubt in
our mind that an administrative decision of the Court could
be assailed by filing a writ petition under Article 226 in the
High Court itself, but this Court having entertained the
petition under Article 32 by issuing rule on 8-12-2000 and
the dispute being one which centres around interpretation
of the relevant Rules and both the direct recruits and the
promotees having made their stand known, and further,
no disputed question on facts having arisen, we do not
think it appropriate to direct the promotees to approach
the High Court in the first instance. We, therefore, heard
the parties at length on the merits of the matter.”
(Emphasis supplied)
40. From the aforesaid, it is clear that the availability of an alternative
remedy does not in any manner affect the maintainability of the writ
1100 [2024] 5 S.C.R.

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petition under Article 32 of the Constitution. The rule behind relegating
a party to first avail the alternative remedy before knocking the doors
of this Court is a rule of self-restraint that is exercised by this Court
as a matter of convenience.
41. Further, wherever the facts of the case are not in dispute, and the
issue involves the interpretation of rules which are of significant
importance having a far-reaching effect, it would be a fit case for this
Court to exercise its discretion and entertain the writ petition under
Article 32 even if there is an alternative remedy available.
42. It is contended by the petitioners that they had to come before this
Court invoking Article 32 of the Constitution instead of Article 226
because the impugned final Select List dated 10.03.2023 which
is the subject matter of challenge had been ratified by the High
Court in its Full Court meeting. We are not impressed with such a
submission as the High Court on its judicial side can always review
any decision or action taken by it on its administrative side. It would
be erroneous to say that if any decision taken by the High Court on
its administrative side is ultimately challenged on any legal ground
on its judicial side, then the High Court may not undertake judicial
review of such administrative decision dispassionately.
43. In the present case, the facts are not in dispute either at the end of the
petitioners herein or at the end of the High Court or the respondents.
Moreover, since the issues involve not just the interpretation of Rule
5(1)(I) of the 2005 Rules but also the decision of this Court in All
India Judges’ Association (3) (supra), we are of the considered
opinion that the petition under Article 32 deserves to be entertained.
ii. The Legislative History and Scheme of the Gujarat State
Judicial Service Rules, 2005.
a. Shetty Commission on Judicial Reforms and the
Decision of this Court in All India Judges’ Association
(3).
44. The subject matter of the controversy with which we are concerned
in the present litigation is with regard to the scheme and policy for
promotions in the Higher Judicial Services, particularly to the cadre
of Additional District & Sessions Judge. The genesis of the same
can be traced back to the decision of this Court in All India Judges’
Association (3) (supra).
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45. The First Law Commission of India under the Chairmanship of Shri
M.C. Setalvad in its 14th Report in the year 1958 expressed concerns
over the growing problem of finding capable and competent judicial
officers for the District Judiciary. It reported that most of the difficulties
brought to the notice of the Commission had their origin in the
inefficiency or inexperience of the judicial personnel on account of
the falling standards in their recruitment. The relevant observations
read as under: -
“2. Subordinate Judiciary
Personnel
2. As has been said repeatedly elsewhere, the problem
of efficient judicial administration, whether at the level of
the superior courts or the subordinate courts, is largely
the problem of finding capable and competent judges and
judicial officers. Delays in the disposal of cases and the
accumulation of arrears are in a great measure due to
the inability of the judicial officers to arrange their work
methodically and to appreciate and apply the provisions
of the Procedural Codes. […]
xxx xxx xxx
4. As we shall point out later, the problem has since grown
in dimensions, because there is unmistakable testimony
that the standards of the judicial officers recruited from
the bar and other sources have, during recent years,
fallen in a substantial degree for various reasons. That
has been almost the unanimous view expressed by the
witnesses before us. It is thus obvious that no scheme of
reform of judicial administration will be effective or worth-
while, unless the basic problem of providing trained and
capable judicial personnel is satisfactorily solved. Before
we can suggest adequate measures for raising the level
of judiciary, we have to examine the causes which have
led to the decline in its efficiency.”
(Emphasis supplied)
46. Accordingly, the Law Commission made a slew of recommendations
in order to deal with the afore-stated problems. The Law Commission,
inter-alia, recommended devising a more robust mechanism for
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recruitment and in-service training of judicial officers with a view to
improve their calibre. It further recommended that a third source
of recruitment to the Higher Judiciary i.e., the cadre of District &
Sessions Judge, should be created. It stated that this third category
should be recruited purely by way of a competitive examination, and
recruitment through the existing two categories i.e., by promotion and
from the Bar should continue as per the existing process. The Law
Commission was of the view that the new avenue as recommended
would enlarge the field of selection and bring in Judicial Officers of
high calibre and brilliance. The relevant observations read as under: -
“10. If we are to improve the personnel of the subordinate
judiciary, we must first take measures to extend or widen
our field of selection so that we can draw from it really
capable persons. A radical measure suggested to us was
to recruit the judicial service entirely by a competitive test
or examination. It was suggested that the higher judiciary
could be drawn from such competitive tests at the all-India
level and the lower judiciary can be recruited by similar
tests held at State level. Those eligible for these tests
would be graduates who have taken a law degree and
the requirement of practice at there Bar should be done
away with.
Such a scheme, it was urged, would result in bringing
into the subordinate judiciary capable young men who
now prefer to obtain immediate remunerative employment
in the executive branch of Government and in private
commercial firms. The scheme, it was pointed out, would
bring to the higher subordinate judiciary the best talent
available in the country as a whole, whereas the lower
subordinate judiciary would be drawn from the best talent
available in the State.”
(Emphasis supplied)
47. In All India Judges’ Association (1) v. Union of India reported in
(1992) 1 SCC 119, the issues pertaining to the working conditions of
the District Judiciary throughout the country came up for consideration,
including the issues pertaining to uniformity in the judicial cadres in
different States and Union Territories, and for adequate provisions
for in-service training and promotion.
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48. This Court took notice of the aforesaid recommendations that were
made by the First Law Commission of India in its Fourteenth Report
in 1958, particularly with respect to improving the standard of the
District Judiciary and widening the field of selection and promotion to
the Higher Judiciary in a balanced manner so as to induct capable
and efficient persons as Judicial Officers in the District Judiciary.
49. While this Court acknowledged that the creation of an All-India
Judicial Service as proposed by the Law Commission may undermine
the control of the High Courts over the District Judiciary, yet at the
same time this Court suggested to the Union of India to undertake
appropriate steps towards the implementation of the recommendations
made by the Law Commission, as far as feasible, at the earliest, and
directed the Central Government to consider setting up an All-India
Judicial Service. The relevant observations read as under: -
“11. [...] We are of the view that the Law Commission’s
recommendation should not have been dropped lightly.
There is considerable force and merit in the view
expressed by the Law Commission. An All India Judicial
Service essentially for manning the higher services in the
subordinate judiciary is very much necessary. The reasons
advanced by the Law Commission for recommending the
setting up of an All India Judicial Service appeal to us.
12. Since the setting up of such a service might require
amendment of the relevant articles of the Constitution and
might even require alteration of the Service Rules operating
in the different States and Union territories, we do not intend
to give any particular direction on this score particularly
when the point was not seriously pressed but we would
commend to the Union of India to undertake appropriate
exercise quickly so that the feasibility of implementation
of the recommendations of the Law Commission may
be examined expeditiously and implemented as early as
possible. It is in the interest of the health of the judiciary
throughout the country that this should be done.
xxx xxx xxx
63. We would now briefly indicate the directions we have
given in the judgment:
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(i) An All India Judicial Service should be set up and
the Union of India should take appropriate steps in this
regard. [...]”
(Emphasis supplied)
50. Thereafter, review petitions came to be filed against the decision in All
India Judges’ Association (1) (supra) seeking certain modifications
and clarifications in respect of the directions that were issued by this
Court. The review petitions came to be disposed in All India Judges’
Association (2) v. Union of India reported in (1993) 4 SCC 288,
wherein inter-alia it was clarified that although the direction for setting
up an All-India Judicial Service was only recommendatory, yet in
view of the necessary and expedient nature of the recommendations
made by the Law Commission, the Central Government should take
an earnest initiative in realizing the same.
51. Pursuant to the directions issued by this Court in All India Judges’
Association (1) (supra) and All India Judges’ Association (2)
(supra), the First National Judicial Pay Commission under the
Chairmanship of Hon’ble Mr. Justice K.J. Shetty (Former Judge of this
Court), more popularly known as the “Shetty Commission on Judicial
Reforms” came to be constituted. After due deliberations, the Shetty
Commission submitted its report on 11.11.1999, and responses to
the same were filed by the States and Union Territories.
52. The recommendations made in the Shetty Commission’s report along
with the responses of the States/Union Territories were taken into
consideration and the same ultimately culminated into the decision
of this Court in All India Judges’ Association (3) (supra).
(1) In the said decision, this Court, inter-alia, accepted the
recommendation of the Shetty Commission that 75% of the
posts in the cadre of District & Sessions Judge shall be filled
by promotion from Civil Judge (Senior Division) and 25% of
the posts shall be filled by direct recruitment from the Bar by
way of a competitive examination encompassing a written
examination and viva.
(2) At the same time, this Court was of the view that when it
comes to appointment by promotion to the cadre of District &
Sessions Judge, (i) some incentive for improving must exist for
the judicial officers and (ii) a certain minimum standard ought
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to be maintained in the cadre of District & Sessions Judge
and further, there must be an objective method for testing the
suitability of a Judicial Officer for promotion.
(3) Accordingly, this Court held that even within the quota of
75% there should be two methods of appointment by way of
promotion. It held that 50% of the total posts shall be filled by
promotion based on the principle of ‘Merit-cum-Seniority’ through
a test for assessing the continued efficiency and adequate
knowledge of case-law of the Judicial Officers and the remaining
25% of the posts shall be filled by promotion strictly on the basis
of merit through a limited departmental competitive examination
(LDCC) with an eligibility requirement of five-years of qualifying
service as a Civil Judge (Senior Division).
(4) Thus, this Court directed that recruitment to the Higher Judicial
Service i.e., in the cadre of District & Sessions Judge shall be
through three different avenues, namely: -
(i) 50% by promotion of Civil Judges (Senior Division) on the
basis of ‘Merit-cum-Seniority’ and passing a Suitability Test.
(ii) 25% by promotion strictly based on merit through a limited
departmental competitive examination of Civil Judges
(Senior Division) not having less than five-years qualifying
service; and
(iii) 25% by direct recruitment from amongst the eligible
advocates based on written and viva voce test.
(5) Accordingly, all the High Courts were directed to frame
appropriate rules in terms of the aforesaid directions. The
relevant observations read as under: -
“27. Another question which falls for consideration is
the method of recruitment to the posts in the cadre
of Higher Judicial Service i.e. District Judges and
Additional District Judges. At the present moment,
there are two sources for recruitment to the Higher
Judicial Service, namely, by promotion from amongst
the members of the Subordinate Judicial Service and
by direct recruitment. The subordinate judiciary is
the foundation of the edifice of the judicial system.
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It is, therefore, imperative, like any other foundation,
that it should become as strong as possible. The
weight on the judicial system essentially rests on
the subordinate judiciary. While we have accepted
the recommendation of the Shetty Commission
which will result in the increase in the pay scales
of the subordinate judiciary, it is at the same time
necessary that the judicial officers, hard-working
as they are, become more efficient. It is imperative
that they keep abreast of knowledge of law and
the latest pronouncements, and it is for this reason
that the Shetty Commission has recommended the
establishment of a Judicial Academy, which is very
necessary. At the same time, we are of the opinion
that there has to be certain minimum standard,
objectively adjudged, for officers who are to enter the
Higher Judicial Service as Additional District Judges
and District Judges. While we agree with the Shetty
Commission that the recruitment to the Higher Judicial
Service i.e. the District Judge cadre from amongst
the advocates should be 25 per cent and the process
of recruitment is to be by a competitive examination,
both written and viva voce, we are of the opinion
that there should be an objective method of testing
the suitability of the subordinate judicial officers for
promotion to the Higher Judicial Service. Furthermore,
there should also be an incentive amongst the
relatively junior and other officers to improve and
to compete with each other so as to excel and get
quicker promotion. In this way, we expect that the
calibre of the members of the Higher Judicial Service
will further improve. In order to achieve this, while
the ratio of 75 per cent appointment by promotion
and 25 per cent by direct recruitment to the Higher
Judicial Service is maintained, we are, however, of
the opinion that there should be two methods as far
as appointment by promotion is concerned : 50 per
cent of the total posts in the Higher Judicial Service
must be filled by promotion on the basis of principle
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of merit-cum-seniority. For this purpose, the High
Courts should devise and evolve a test in order to
ascertain and examine the legal knowledge of those
candidates and to assess their continued efficiency
with adequate knowledge of case-law. The remaining
25 per cent of the posts in the service shall be filled
by promotion strictly on the basis of merit through
the limited departmental competitive examination for
which the qualifying service as a Civil Judge (Senior
Division) should be not less than five years. The High
Courts will have to frame a rule in this regard.
28. As a result of the aforesaid, to recapitulate, we
direct that recruitment to the Higher Judicial Service
i.e. the cadre of District Judges will be:
(1)
(a) 50 per cent by promotion from amongst
the Civil Judges (Senior Division) on the
basis of principle of merit-cum-seniority
and passing a suitability test;
(b) 25 per cent 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 per cent of the posts shall be filled by
direct recruitment from amongst the eligible
advocates on the basis of the written and
viva voce test conducted by respective
High Courts.
(2) Appropriate rules shall be framed as above by
the High Courts as early as possible.
29. [...] As a result of the decision today, there will,
in a way, be three ways of recruitment to the Higher
Judicial Service. The quota for promotion which
we have prescribed is 50 per cent by following the
principle “merit-cum-seniority”, 25 per cent strictly on
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merit by limited departmental competitive examination
and 25 per cent by direct recruitment. [...]”
(Emphasis supplied)
53. Thereafter, in Malik Mazhar Sultan & Anr. (1) v. U.P. Public
Service Commission reported in (2006) 9 SCC 507, this Court
underscored the importance for filling up judicial vacancies on time
and directed the High Courts to undertake necessary steps towards
fixing a timeline for determining vacancies, issuing advertisements,
conducting examinations, interviews and declaring results for final
appointment. The relevant observations read as under: -
“23. It is absolutely necessary to evolve a mechanism to
speedily determine and fill vacancies of judges at all levels.
For this purpose, timely steps are required to be taken
for determination of vacancies, issue of advertisement,
conducting examinations, interviews, declaration of the final
results and issue of orders of appointments. For all these
and other steps, if any, it is necessary to provide for fixed
time schedule so that the system works automatically and
there is no delay in filling up of vacancies. [...]”
(Emphasis supplied)
54. The aforesaid was followed by the decision in All India Judges’
Association (4) v. Union of India reported in (2010) 15 SCC 170,
wherein this Court took note of the fact that various posts of the cadre
of District & Sessions Judge earmarked for the 25% promotional
quota strictly on the basis of merit were lying vacant on account of
insufficiency of candidates or their inability to clear the competitive
exam. In such circumstances, it was directed that the 25% promotional
quota, to be filled on the basis of Merit, shall be reduced to 10% of
the cadre strength, and the 50% promotional quota to be filled by
‘Merit-cum-Seniority’ shall be increased to 65% of the total seats.
The relevant observations read as under: -
“6. Having regard to various strategies available, we
are of the considered view that suitable amendment is
to be made for this 25% quota of limited departmental
competitive examination. We are also of the view, with
the past experience, that it is desirable that 25% quota be
reduced to 10%. We feel so as the required result, which
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was sought to be achieved by this process could not be
achieved, thus it calls for modification.
7. Thus, we direct that henceforth only 10% of the
cadre strength of District Judges be filled up by limited
departmental competitive examination with those
candidates who have qualified service of five years as
Civil Judge (Senior Division). Every year vacancies are
to be ascertained and the process of selection shall be
taken care of by the High Courts. If any of the post is
not filled up under 10% quota, the same shall be filled
up by regular promotion. In some of the High Courts,
process of selection of these 25% quota by holding limited
departmental competitive examination is in progress,
such process can be continued and the unfilled seats,
if meritorious candidates are available, should be filled
up. But if for some reason the seats are not filled up,
they may be filled up by regular promotion and apply
the usual mode of promotion process. Thus we pass
the following order.
8. Hereinafter, there shall be 25% of seats for direct
recruitment from the Bar, 65% of seats are to be filled
up by regular promotion of Civil Judge (Senior Division)
and 10% seats are to be filled up by limited departmental
competitive examination. If candidates are not available for
10% seats, or are not able to qualify in the examination
then vacant posts are to be filled up by regular promotion
in accordance with the Service Rules applicable.”
(Emphasis supplied)
55. In Malik Mazhar Sultan & Anr. (3) v. U.P. Public Service
Commission & Ors. reported in (2009) 17 SCC 530 this Court, in
view of the large number of vacancies in the promotional quota in
the cadre of District & Sessions Judge, directed the High Courts to
be practical in the matters of promotion and ensure timely filling up
of the vacancies on the basis of the principle of ‘Seniority-cum-Merit’,
deviating from the observations in All India Judges’ Association
(3) (supra) mandating promotion by ‘Merit-cum-Seniority’. It further
observed that seniority should have a predominant role in giving
promotions to the Civil Judges (Senior Division) and that the High
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Court may decline promotion only in case the Judicial Officer is
not suitable for being promoted. The relevant observations read as
under: -
“3. We see large number of vacancies of District Judges
are lying vacant as the promotion of these posts are not
being done timely by the High Court. Considering the
large number of vacant posts of District Judges, the High
Court should take timely action to fill up these vacancies
keeping in mind the principle of seniority-cum-merit.
The High Court may deny promotion to a Civil Judge
(Senior Division) only in case he/she is not suitable
for being promoted and the seniority should always
have a predominant role in giving promotion to the Civil
Judge (Senior Division) to the post of District Judge. If
the posts of District Judges are not filled up in time it
is likely that sessions cases may not have timely trial,
thereby delaying the whole procedure of justice delivery
system. We request the High Court to be practical in
the matter of promotion and filling up the posts of the
District Judges. [...]”
(Emphasis supplied)
b. Relevant Statutory Provisions of the Gujarat State Judicial
Service Rules, 2005.
56. At this stage, it would be necessary to look into the statutory scheme
and refer to the relevant provisions governing the promotion of Civil
Judges (Senior Division) to the cadre of District & Sessions Judge
in the State of Gujarat.
57. The 2005 Rules provide for the service conditions and policies
pertaining to the Judicial Officers and the service framework of the
District Judiciary in the State of Gujarat.
58. Rule 5 sub-rule (1) of the 2005 Rules provides for the various modes
or methods of appointment to the cadre of District & Sessions
Judge. Rule 5(1) of the 2005 Rules framed in accordance with the
directions issued in All India Judges’ Association (3) (supra), lays
down three distinct modes of recruitment to the cadre of District &
Sessions Judge. The said Rule reads as under: -
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“5. Method of recruitment, qualification and age limit.
(1) Recruitment to the cadre of District Judges shall be
as under, -
(I) 50 per cent by promotion from amongst the Senior Civil
Judges on the basis of principle of merit-cum-seniority
and passing a suitability test.
(II) 25 per cent by promotion strictly on the basis of merit
through limited competitive examination of Senior Civil
Judges having not less than five years qualifying service,
and
(III) 25 per cent of the posts shall be filled by direct
recruitment from amongst the eligible advocates on the
basis of the written and viva voce test conducted by the
High Court.”
59. Rule 5(1) sub-clause (I) of the 2005 Rules provides that appointment
to 50% of the posts in the cadre of District & Sessions Judge shall
be by promotion from the cadre of Civil Judges (Senior Division)
i.e., the feeder cadre, on the basis of the principle of ‘Merit-cum-
Seniority’ and upon passing a Suitability Test. In other words, 50% of
the posts of District & Sessions Judge shall be filled by promotions
on the basis of the principle of ‘Merit-cum-Seniority’.
60. Rule 5(2) sub-clause (II) of the 2005 Rules provides that 25% of
the posts in the cadre of District & Sessions Judge shall be filled
by promotions on the basis of merit through a limited departmental
competitive examination.
61. Rule 5(2) sub-clause (III) provides the third method of recruitment,
by which the remaining 25% of the posts in the cadre of District &
Sessions Judge shall be filled by direct recruitment of the eligible
advocates on the basis of a written exam and viva-voce.
62. Pursuant to the directions of this Court in All India Judges’
Association (4) (supra), Rule 5 referred to above was amended by
the Gujarat State Judicial Service (Amendment) Rules, 2011, whereby,
the second category of posts being the 25% promotional quota to
be strictly filled on the basis of merit, was reduced to 10% and the
50% promotional quota, to be filled on the basis of principle of ‘Merit-
cum-Seniority’ and passing a Suitability Test, was increased to 65%.
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63. In other words, the aforesaid 2011 amendment reduced the posts
for promotion on the basis of merit from 25% to 10% and increased
the posts for promotion on the principle of ‘Merit-cum-Seniority’ from
50% to 65% in the cadre of District & Sessions Judge.
64. Rule 5 sub-rule (3) further prescribes the eligibility criteria for the
aforesaid two modes of promotion provided in Rule 5(1) of the 2005
Rules, as amended in 2011. The said rule reads as under: -
“5. Method of recruitment, qualification and age limit.
(3) (I) For being eligible for promotion against 65% of the
total posts in the cadre of District Judges required to be
filled by promotion on the basis of the principle of merit-
cum-seniority, the qualifying service as Senior Civil Judge
shall not be less than two years service in the cadre.
(II) For eligibility for promotion against the remaining 10%
posts required to be filled in by promotion strictly on the
basis of merit through limited departmental competitive
examination, the qualifying service as Senior Civil Judge
shall not be less than five years.”
65. Rule 5 sub-rule (3)(I) of the 2005 Rules stipulates that a minimum
of two-years of qualifying service in the feeder cadre i.e., as a
Civil Judge (Senior Division) is required in order to be eligible to
participate in the promotion process for the 65% posts in the cadre
of District & Sessions Judge on the basis of the principle of ‘Merit-
cum-Seniority’ as envisaged under Rule 5(1)(I). In other words, all
Civil Judges (Senior Division), having a minimum of two-years of
service, are eligible to be promoted to the 65% posts in the cadre
of District & Sessions Judge on the basis of the principle of ‘Merit-
cum-Seniority’.
66. On the other hand, Rule 5 sub-rule (3)(II) provides for the requirement
of a minimum of five-years of qualifying service in the feeder cadre i.e.,
as a Civil Judge (Senior Division), for participating in the promotion
process for the 10% posts in the cadre of District & Sessions Judge
on the basis of strict merit as provided under Rule 5(1)(ii) of the
2005 Rules. In other words, all Civil Judges (Senior Division) who
have completed a minimum of five-years of service are eligible to
be promoted to the 10% posts in the cadre of District & Sessions
Judge on the basis of Merit through the competitive examination.
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67. In other words, a combined reading of the aforesaid Rule 5(1) with
Rule 5(3) of the 2005 Rules makes it clear that there are three
distinct modes of recruitment to the cadre of District & Sessions
Judge which are as follows: -
(I) 65% posts by promotion from the eligible Civil Judges (Senior
Division) having a minimum of two-years of service on the basis
of ‘Merit-cum-Seniority’;
(II) 10% posts by promotion from eligible Civil Judges (Senior
Division) with a minimum of five-years of service on basis of
merit through a competitive examination and;
(III) 25% posts by direct recruitment from the eligible members of
the Bar on the basis of a written exam and viva voce.
iii. Evolution of the Principles of ‘Merit-cum-Seniority’ and
‘Seniority-cum-Merit’ in Service Jurisprudence.
a. Concept of Promotion: The meaning and origin of
seniority and merit as parameters.
68. Promotion is an integral part of any formal sector employment. The
principal object of a promotion system is to secure the best possible
incumbents for higher positions while maintaining the morale of
the whole organization.1 In the matter of formulation of a policy for
promotion to a higher post, the two competing principles which are
taken into account are inter-se seniority and comparative merit of
employees who are eligible for promotion.
Understanding the meaning of Seniority and Merit
69. The Black’s Law Dictionary defines ‘seniority’ as follows2: -
“Represents in the highest degree the right to work, and
by seniority the oldest man in point of service, ability and
fitness for the job being sufficient, is given choice of jobs,
is first promoted within range of jobs subject to seniority,
and is the last laid off, proceeding so on down the line to
the youngest in point of service.”

1 High Court of Calcutta v. Amal Kumar Roy [1963] 1 SCR 437
2 Henry Campbell Black, Black’s Law Dictionary, p. 1528 (6th Edn., 1968).
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70. Weber, the sociologist, described “promotion according to seniority
or to achievement” as an important component of an efficient
bureaucracy.3 Establishing a promotion system based on seniority is
fundamental to modern management, which ensures that individuals
joining an organization have opportunities for career advancement.
Further, promotions based on seniority is tried and tested method
because those who have been engaged at the employment for longer
have had more time to refine the skills necessary for the higher posts.
What constitutes ‘Merit’
71. According to the Cambridge Dictionary, merit is defined as the
quality of being good and deserving. In the context of employment,
it is the sum total of various qualities which are relevant for fulfilling
the requirements of the employment.4 There are multiple attributes
of merit which must be taken into consideration such as character,
integrity, and devotion to the assigned official duties. The manner
in which the candidate discharges their final duties would also be
a relevant factor.
72. Further, past performance is a relevant factor to judge the merit of the
candidate, particularly in promotional posts, since it would indicate
the capability of the candidate to discharge their duties effectively.
Merely because any person possesses higher qualifications or higher
marks in an examination does not mean that they are meritorious
than others.5
73. In the United States, the Federal Civil Services Act of 1871, provides
for filling of vacancies in higher positions by competitive promotion
tests, wherever practicable. H. Eliot Kaplan, General Counsel of
the New York Bar, in his “Law of Civil Services” writes that in some
jurisdictions promotions may be made on a wider basis, the field of
promotion being left to the discretion of the personnel agency.6 He
also notes that the eligibility requirements for promotion are usually
not specified in the statutes but are usually left to be determined by

3 H. Gerth and C.W. Mills, From Max Weber: Essays in Sociology, 199, 202 (Oxford University Press, New
York, 1958).
4 K.K. Parmar v. High Court of Gujarat (2006) 5 SCC 789
5 Kartar Kaur v. State (1967) SLR 34
6 H. Eliot Kaplan, The Law of Civil Services (New York University Press, Mathew Bender & Company,
New York, 1958).
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rules of the personnel agency. Personnel agencies fix educational
and experience requirements for eligibility to compete for promotion.
A hint of the ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ principle
can be traced in his words where he states that where the law
requires that promotions be made from among those serving in the
next lower grade, the incumbents of such lower positions would be
deemed to be presumably qualified for promotion. For ‘Merit-cum-
Seniority’, particularly, the competitive test/qualification criteria would
serve to determine the relative excellence among those presumably
qualified for promotion7, so that those demonstrating superior merit
and fitness would be available to fill the vacancies.8
74. In Britain, the 1854 Northcote-Trevelyan Report founded a public
service system based on merit, where open competitive examinations
were practiced under the principle of promotion by merit but also
held that seniority and experience counted in some respects.9
75. Similarly, in France, the 19th century saw the introduction of the
doctrine of the “Concours” or competitive examination to support the
merit system in the civil service, yet giving seniority and experience
due regard in promotion to higher ranks.10
76. During the British Raj, the East India Company adopted the principle
of seniority for promotions. This principle was officially recognized
in the Charter Act, 1793 and continued until the enactment of the
Indian Civil Service Act, 1861. Apart from the seniority principle,
considerations of merit, integrity, competence, and ability were also
taken into account for promotions. This ‘Seniority-cum-Merit’ formula
remained in practice until 1947.
77. The Indian Civil Service (hereinafter referred as the “ICS”) system,
initiated in the 19th century, encapsulated aspects of recruitment
based on competitive examinations and seniority. For entry into the
ICS, competitive examinations were conducted and for promotions

7 Id.
8 Elman, B.A., Political, social, and cultural reproduction via civil service examinations in late imperial
China, 50(1) Journal of Asian Studies, pp.7-28 (1991).
9 Jenifer Hart, The genesis of the Northcote–Trevelyan report, in Studies in the growth of nineteenth
century government pp. 63-81 (Ed. Gillian Sutherland, Routledge & Kegan Paul, London, 1972).
10 Kaplan, N.I., A changing culture of merit: French competitive examinations and the politics of selection,
pp. 1750-1820 (Columbia University Press, 1999).
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to higher positions, seniority and experience were considered as
important factors.
78. Under the Charter Act, 1833, following Lord Macaulay’s Report of the
Select Committee of British Parliament11, the concept of competitive
examinations in modern Civil Services in India was introduced
in 1854. The Report recommended that the patronage-based
system of East India Company should be replaced by a permanent
Civil Service where candidates are recruited through competitive
examinations.12 As stated, competitive examinations were “designed
to protect career employees against improper political influences or
personal favouritism in the recruiting, hiring, promotion, or dismissal
processes, to ensure that personnel management is conducted
without discrimination”.13
79. The First Pay Commission in 1947 recommended a blend of direct
recruitment and promotion, suggesting that seniority be emphasized
for roles requiring familiarity with office work, while merit be the
basis for higher-level positions. Subsequent commissions, such as
the Second Pay Commission in 1959 and the First Administrative
Reforms Commission in 1969, echoed the importance of merit-based
promotions alongside seniority.
80. The principle of seniority as a parameter of selection for promotion
was found to be derived from the belief that competence is related to
experience and that it limits the scope of discretion and favouritism.
There is always an additional assumption that long-serving employees
have demonstrated loyalty to the employing organization and so are
entitled to reciprocal treatment.
81. However, in India, no government servant can claim promotion as
their right because the Constitution does not prescribe criteria for
filling seats in promotional posts. The Legislature or the executive may
decide the method for filling vacancies to promotional posts based
on the nature of employment and the functions that the candidate
will be expected to discharge. The courts cannot sit in review to
decide whether the policy adopted for promotion is suited to select

11 The Macaulay Committee’s Report on the Indian Civil Service 1854.
12 History of the Commission, Union Public Service Commission.
13 S. REP. No. 969; recited from O’Rourke, 1993, p. 344.
[2024] 5 S.C.R. 1117

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High Court of Gujarat & Ors.

the ‘best candidates’, unless on the limited ground where it violates
the principle of equal opportunity under Article 16 of the Constitution.
b. Principle of ‘Merit-cum-Seniority’ and ‘Seniority-cum-
Merit’ in Service Jurisprudence.
82. This Court in its decision in State of Kerala & Anr. v. N.M. Thomas
& Ors. reported in (1976) 2 SCC 310 held that policies pertaining to
promotions can be said to broadly fall within two distinct categories
being: (i) promotions which are based on the principle of ‘Merit-cum-
Seniority’ and, (ii) promotions which are based on the principle of
‘Seniority-cum-Merit’. It further held that when it comes to promotions
based on principle of ‘Seniority-cum-Merit’, a senior who has the
minimum requisite merit shall be entitled to promotion even though
there might be others who are more meritorious. The relevant
observations read as under: -
“38. The principle of equality is applicable to employment
at all stages and in all respects, namely, initial recruitment
promotion, retirement, payment of pension and gratuity.
With regard to promotion the normal principles are either
merit-cum-seniority or seniority-cum-merit, Seniority-
cum-merit means that given the minimum necessary
merit requisite for efficiency of administration, the senior
though the less meritorious shall have priority. This will not
violate Articles 14, 16(1) and 16(2). A rule which provides
that given the necessary requisite merit, a member of
the backward class shall get priority to ensure adequate
representation will not similarly violate Article 14 or Article
16(1) and (2). [...]”
(Emphasis supplied)
83. This Court in State of Mysore v. Syed Mahmood reported in (1968)
3 S.C.R. 363, on the criterion of ‘Seniority-cum-Merit’ observed
that any rule that mandates selection based on the principle of
‘Seniority-cum-Merit’, such rule mandates that the promotions must
be determined through a selection process that evaluates “seniority,
subject to the fitness of the candidate, to discharge the duties of the
post from among persons eligible for promotion”. In consequence,
where promotion is based on the ‘Seniority-cum-Merit’ principle, the
candidate cannot claim promotion as a matter of right on the grounds
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of his seniority alone. Further, if the officer fails to discharge his
duties of the higher post, he may be passed over by a junior officer.
84. In Jagathigowda, C.N. & Ors. v. Chairman, Cauvery Gramina Bank
& Ors, reported in (1996) 9 SCC 677, while moving a step ahead, it
was held that where promotion is based on the principle of ‘Seniority-
cum-Merit’, it would still be open for the selection committee to take
into consideration the performance appraisal forms to first ascertain
the suitability of the candidates being considered for promotion. The
relevant observations read as under: -
“8. [...] It is settled proposition of law that even while making
promotions on the basis of seniority-cum-merit the totality
of the service record of the officer concerned has to be
taken into consideration. The performance appraisal forms
are maintained primarily for the purpose that the same
are taken into consideration when the person concerned
is considered for promotion to the higher rank. The High
Court, with respect, was not justified in holding that the
performance appraisal could not be taken into consideration
by the Director’s Committee while considering the officers
for promotion to the higher rank.”
(Emphasis supplied)
85. This Court in Rajendra Kumar Srivastava & Ors. v. Samyut
Kshetriya Gramin Bank & Ors. reported in (2010) 1 SCC 335 held
that where promotion is on the basis of ‘Seniority-cum-Merit’, the
standard method is to first ascertain the candidates who possess the
minimum required merit and thereafter making promotions strictly on
the basis of seniority from among those who are found to possess the
minimum necessary merit. It further held that the minimum requisite
merit may be ascertained from either one or a combination of multiple
processes of assessment. The relevant observations read as under: -
“11. It is also well settled that the principle of seniority-
cum-merit, for promotion, is different from the principle
of “seniority” and the principle of “merit-cum-seniority”.
Where promotion is on the basis of seniority alone, merit
will not play any part at all. But where promotion is on the
principle of seniority-cum-merit, promotion is not automatic
with reference to seniority alone. Merit will also play a
[2024] 5 S.C.R. 1119

Ravikumar Dhansukhlal Maheta & Anr. v.
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significant role. The standard method of seniority-cum-
merit is to subject all the eligible candidates in the feeder
grade (possessing the prescribed educational qualification
and period of service) to a process of assessment of a
specified minimum necessary merit and then promote
the candidates who are found to possess the minimum
necessary merit strictly in the order of seniority. The
minimum merit necessary for the post may be assessed
either by subjecting the candidates to a written examination
or an interview or by assessment of their work performance
during the previous years, or by a combination of either
two or all the three of the aforesaid methods. There is no
hard-and-fast rule as to how the minimum merit is to be
ascertained. So long as the ultimate promotions are based
on seniority, any process for ascertaining the minimum
necessary merit, as a basic requirement, will not militate
against the principle of seniority-cum-merit.
xxx xxx xxx
13. Thus it is clear that a process whereby eligible
candidates possessing the minimum necessary merit
in the feeder posts is first ascertained and thereafter,
promotions are made strictly in accordance with seniority,
from among those who possess the minimum necessary
merit is recognised and accepted as complying with the
principle of “seniority-cum-merit”. What would offend
the rule of seniority-cum-merit is a process where after
assessing the minimum necessary merit, promotions are
made on the basis of merit (instead of seniority) from
among the candidates possessing the minimum necessary
merit. If the criteria adopted for assessment of minimum
necessary merit is bona fide and not unreasonable, it is
not open to challenge, as being opposed to the principle of
seniority-cum-merit. We accordingly hold that prescribing
minimum qualifying marks to ascertain the minimum merit
necessary for discharging the functions of the higher post,
is not violative of the concept of promotion by seniority-
cum-merit.”
(Emphasis supplied)
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86. In Dr. Kavita Kamboj (supra), this Court speaking eruditely through
one of us, Dr. D.Y. Chandrachud, CJI., observed that the principle
of ‘Merit-cum-Seniority’ is an approved method of selection where
the emphasis is primarily on the comparative merit of the judicial
officers being considered for promotion whereby even a junior who
demonstrates greater merit than the senior can be considered for
promotion. The relevant observations read as under: -
“45. [...] The principle of merit-cum seniority is an approved
method of selection where merit is the determinative factor
and seniority plays a less significant role. Where the
principle of ‘merit-cum seniority’ is the basis, the emphasis
is primarily on the comparative merit of the judicial officers
being considered for promotion. Resultantly, even a junior
officer who demonstrates greater merit than a senior officer
will be considered for promotion.”
(Emphasis supplied)
[Also see Central Council for Research in Ayurveda and Siddha
and Anr. v. Dr. K. Santhakumari reported in (2001) 5 SCC 60]
87. This Court in B.V. Sivaiah & Ors. v. K. Addankl Babu & Ors. reported
in (1998) 6 SCC 720 whilst explaining the difference between the
principle of ‘Merit-cum-Seniority’ vis-à-vis the principle of ‘Seniority-
cum-Merit’, held as follows: -
(i) First, where promotion is based on the principle of ‘Merit-cum-
Seniority’ a greater emphasis is laid on merit & the ability of the
candidate and seniority is to be given weight where merit and
ability are approximately equal. Whereas, when it comes to the
principle of ‘Seniority-cum-Merit’, the promotion is to be made
on the basis of seniority alone subject to having the minimum
requisite merit and suitability of the candidate amongst the
eligible persons. The relevant observations read as under: -
“9. The principle of ‘merit-cum-seniority lays greater
emphasis on merit and ability and seniority plays a
less significant role. Seniority is to be given weight
only where merit and ability are approximately equal.
[...]
xxx xxx xxx
[2024] 5 S.C.R. 1121

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High Court of Gujarat & Ors.

18. We thus arrive at the conclusion that the criterion
of ‘seniority-cum-merit’ in the matter of promotion
postulates that given the minimum necessary merit
requisite for efficiency of administration the senior,
even though less meritorious, shall have priority and
a comparative assessment of merit is not required
to be made. For assessing the minimum necessary
merit the competent authority can lay down the
minimum standard that is required and also prescribe
the mode of assessment of merit of the employee
who is eligible for consideration for promotion. Such
assessment can be made by assigning marks on
the basis of appraisal of performance on the basis
of service record and interview and prescribing the
minimum marks which would entitle a person to be
promoted on the basis of seniority-cum-merit.”
(Emphasis supplied)
(ii) Secondly, the principle of ‘Merit-cum-Seniority’ postulates the
requirement of making a comparative assessment of merit,
whereas no such comparative assessment is required where
the criterion for promotion is based on the principle of ‘Seniority-
cum-Merit’. Even if the candidates have the same length of
service, it is only to be determined whether the candidates
possess the minimum required threshold of merit or not. The
relevant observations read as under: -
“15. [...] Since comparation assessment of merit
is required to made while applying the criterion of
‘merit cum-seniority’ and for ‘seniority-cum merit’
no such comparative assessment is required, the
aforementioned observations in the case of C.R.
Seshadri (supra) on which reliance has been placed
cannot be regarded as correctly reflecting as what is
meant by the criterion of ‘seniority-cum-merit’.
xxx xxx xxx
17. [...] We are unable to agree. While applying the
principle of seniority-cum-merit for the purpose of
promotion what is required to be considered is inter
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se seniority of the employees who are eligible for
consideration. Such seniority is normally determined
on the basis of length of service, but as between
employees appointed on the same date and having
the same length of service, it is generally determined
on the basis of placement in the select list for
appointment. Such determination of seniority confers
certain rights and the principle of seniority-cum-merit
gives effect to the such rights flowing from seniority.
It cannot, therefore, be said that in the matter
of promotion on the basis of seniority-cum-merit
seniority has no role where the employees eligible
for promotion were appointed on the same date and
have the same length of service.”
(Emphasis supplied)
(iii) Thirdly, the Court concluded by observing that where the
criterion of promotion is principle of ‘Seniority-cum-Merit’, marks
can only be prescribed as a ‘minimum qualifying requirement’
and as such where promotion was being given to the eligible
seniormost candidates on the basis of their individual marks,
such promotion would be contrary to the principle of ‘Seniority-
cum-Merit’. The relevant observations read as under: -
“26. It is not a case where minimum qualifying marks
are prescribed for assessment of performance and
merit and those who secure the prescribed minimum
qualifying marks are selected for promotion on the
basis of seniority. In the circumstances, it must be held
that the High Court has rightly come to the conclusion
that the mode of selection that was in fact employed
was contrary to the principle of ‘seniority-cum-merit’
laid down in the Rules.”
(Emphasis supplied)
88. This distinction was reiterated in Union of India and Ors. v. Lt.
Gen. Rajendra Singh Kadyan & Anr. reported in (2000) 6 SCC
698, State of U.P. v. Jalal Uddin & Ors. reported in (2005) 1 SCC
169 and Haryana State Electronics Development Corporation
Ltd. & Ors. v. Seema Sharma & Ors. reported in (2009) 7 SCC 311.
[2024] 5 S.C.R. 1123

Ravikumar Dhansukhlal Maheta & Anr. v.
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89. This Court in Palure Bhaskar Rao & Ors. v. P. Ramaseshaiah &
Ors. reported in (2017) 5 SCC 783 reiterated the distinction between
the principles of ‘Seniority-cum-merit’ and ‘Merit-cum-Seniority’. As far
as promotion by ‘seniority-cum-merit’ or seniority per se, the eligible
senior cannot be superseded. Other things being equal, the senior
automatically get promoted. But in the case of selection based on
‘Merit-cum-Seniority’, the senior candidate can be superseded if the
candidate who is senior is not otherwise eligible to be considered
according to the applicable service rules.
90. This Court in its decision in K. Samantaray v. National Insurance
Co. Ltd. reported in (2004) 9 SCC 286 reaffirmed that when it comes
to promotion, apart from the two guiding principles that have come to
be accepted namely; ‘Seniority-cum-Merit’ and ‘Merit-cum-Seniority’,
a third model has also now come to be recognized as a mode of
promotion known as the ‘Hybrid Mode of Promotion’. This Court
while explaining the ‘Hybrid Mode of Promotion’ observed that the
requirement is that seniority is to be duly respected and merit is to be
appropriately recognized. The relevant observations read as under: -
“10. [...] The third mode (apart from seniority-cum-merit and
merit-cum-seniority modes) has been recognized. It has
been described as a “hybrid mode of promotion”. In other
words, there is a third category of cases where seniority
is duly respected and merit is appropriately recognized.
11. While laying down the promotion policy or rule, it is
always open to the employer to specify area and parameter
of weightage to be given in respect of merit and seniority
separately so long as policy is not colourable exercise of
power, nor has the effect of violating of any statutory scope
of interference and other relatable matters. The decision in
B. V. Sivaiah case (supra) is clearly distinguishable on facts
and in law. That was a case where statutory rules governed
the field. This Court, inter alia, held that fixing terms which
are at variance with the statutory rules is impermissible.
In the case at hand, prior to the formulation of policy in
February, 1990, there were no codified prescriptions. It
was the stand of the respondent-employer that prior to
the formulation of the policy, certain guidelines existed
and the objectives of the policy were to rationalize and
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codify the existing guidelines relating to promotions within
officers cadre. There is no statutory rule operating. It is
for the employer to stipulate the criteria for promotion,
the same pertaining really to the area of policy making.
It was, therefore, permissible for the respondent to have
their own criteria for adjudging claims on the principle
of seniority-cum-merit giving primacy to merit as well,
depending upon the class, category and nature of posts
in the hierarchy of administration and the requirements of
efficiency for such posts.”
(Emphasis supplied)
91. In Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya
Gramin Bank & Ors. reported in (2006) 12 SCC 574, this Court
observed that although the requirement of minimum marks for
assessing merit can be prescribed for the purpose of promotion on
the basis of ‘Seniority-cum-Merit’, yet where a very high requirement
of minimum marks has been prescribed, the same would amount
to laying greater emphasis on merit and thereby departing from the
principle of ‘Seniority-cum-Merit’ and shifting towards to the principle
of ‘Merit-cum-Seniority’ where merit and ability play a predominant
role. The relevant observations read as under: -
“11. The principle of “merit-cum-seniority” lays greater
emphasis on merit and ability and seniority plays a less
significant role. Seniority is to be given weight only when
merit and ability are approximately equal.
xxx xxx xxx
20. There is no basis, in the instant case, for the stand
that for assessing merit a minimum number of marks has
been prescribed. The contention that minimum marks were
45 out of 60, means that an employee is to secure 75% of
marks. Such a high percentage cannot be a measure for
prescribing minimum marks to assess merit. It obviously
would be a case of shifting the focus to merit-cum-seniority
principle. In para 37 of Sivaiah case this Court noted
that minimum marks prescribed for assessing merit do
not depart from the seniority-cum-merit principle. But the
factual position is different here. There is no mention that
[2024] 5 S.C.R. 1125

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High Court of Gujarat & Ors.

45 marks out of 60 relate to the prescription of minimum
marks for assessing the merit. In Jalal Uddin case it
was noted that in seniority-cum-merit greater emphasis
is on seniority though it is not the determinative factor.
In the case of merit-cum-seniority, merit becomes a
determinative factor. In fact, the position noted by this
Court in paras 19, 20, 24 and 25 of Sivaiah case dealt
with almost identical fact situation, apart from para 16
of the judgment.”
(Emphasis supplied)
92. In Shriram Tomar & Anr. v. Praveen Kumar Jaggi & Ors. reported
in (2019) 5 SCC 736, for the purpose of promotion on the basis of
‘Seniority-cum-Merit’ it was stipulated that the assessment would be
on the basis of a written test, interview and performance appraisal for
a grand total of 100 marks out of which requirement of a minimum
aggregate of 40% marks was prescribed. In addition to the above, a
further requirement of minimum 12 marks in one of the components
i.e., the interview had also been prescribed.
93.1 This Court held that the principle of ‘Seniority-cum-Merit’
postulates only one requirement i.e., once the minimum required
merit is assessed, thereafter the promotion must be strictly
in accordance with the seniority of the candidates having the
requisite merit. How the minimum merit ought to be assessed
is immaterial.
93.2 As such, prescribing of an additional requirement of minimum
marks in any one component of assessment such as interview in
addition to the requirement of aggregate minimum marks in the
overall assessment process was permissible under the principle
of ‘Seniority-cum-Merit’ provided that the ultimate promotion is
taking place as per seniority. The relevant observations read
as under: -
“13. [...] As the promotion to the post of Junior
Management Scale II shall be made on the basis
of seniority-cum-merit, the only requirement would
be that after it is found that the candidates have
possessed the minimum necessary merit, namely,
minimum 40% qualifying marks in the written test
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and minimum 12 marks each out of 20 marks each
in interview and the performance appraisal reports
respectively, thereafter the candidates are required
to be promoted in the order of seniority, irrespective
of anyone among them having obtained more marks.”
(Emphasis supplied)
93. In Sujata Kohli v. Registrar General, High Court of Delhi and
Ors. reported in (2020) 14 SCC 58, this Court observed that
since both the channels of promotion to the cadre of District &
Sessions Judge being (i) 65% promotion on basis of principle
of ‘Merit-cum-Seniority’ and (ii) 10% promotion strictly on merit
through competitive examination postulate the criterion of merit,
it necessarily meant that: -
(i) First, for the purposes of any promotion through the above two
channels, merit would have to play a major role in promotion
through these channels and will acquire primacy and that
seniority alone cannot be given primacy.
(ii) Secondly, the requirement of merit in such promotions cannot
be less than the merit which is required at the entry level i.e.,
in the lower cadres.
(iii) Thirdly, that comparative assessment of merit is crucial, such as
through the evaluation of the respective ACRs of the candidates.
Thus, this Court was of the view that the minimum requirement of
grade ‘A’ in ACRs was in consonance with the policy envisaged by
the abovementioned two channels of promotion and the relevant
observations read as under: -
“14.3 [...] As noticed, two channels of recruitment to the
posts in the cadre of District Judge have been provided:
one by promotion from amongst the Civil Judges (Senior
Division) and another by direct recruitment from the
eligible persons. As regards promotion, the bifurcation is
provided in the manner that 65% are to be recruited by
way of promotion on the basis of merit-cum-seniority and
10% by promotion strictly on the basis of merit through
limited competitive examination (vide Rule 7 and 7A). [...]
xxx xxx xxx
[2024] 5 S.C.R. 1127

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

15. Keeping the principles aforesaid in view, when we
revert to the scheme of the Rules of 1970, the striking
feature is that even at the entry level, the promotions are
to be made either on merit-cum-seniority basis or on merit
basis. Further, grant of Selection Grade and Super Time
Scale is also on assessment of merit-cum-seniority10. 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.
xxx xxx xxx
19.1. [...] 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. In this view of the matter too,
the 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. Although there is no
requirement in law that criteria for promotion based on ACR
alone be also notified but, in any case, in the scheme of
the Rules and the requirements of the posts in question,
the Appellant cannot contend that she was not aware of the
position that comparative merit of the incumbents shall be
a crucial factor for any upward progression in the cadre.”
(Emphasis supplied)
c. ‘Hybrid-Dynamic Mode of Promotion’ in Service
Jurisprudence.
94. What can be discerned from the aforenoted decisions is that this
Court over the years has consistently held that where promotion
is on the basis of the principle of ‘Merit-cum-Seniority’ a greater
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emphasis is placed on merit, whereas, when the promotion is on the
basis of the principle of ‘Seniority-cum-Merit’, a greater emphasis is
laid on seniority.
95. One must be mindful that the terms ‘Merit-cum-Seniority’ or ‘Seniority-
cum-Merit’ are not statutorily defined by the legislature.
96. These principles are judicial connotations that have been evolved
over a period of years through various decisions of this Court and
the High Courts whilst dealing with matters of promotion pertaining
to different statutes and service conditions.
97. This Court in B.V. Sivaiah (supra), Rajendra Kumar Srivastava
(supra), Shriram Tomar (supra), Sujata Kohli (supra) and a catena
of other decisions has held that the principles of ‘Merit-cum-Seniority’
and ‘Seniority-cum-Merit’ are conceptually different. Whilst explaining
the difference between these two principles, this Court has only gone
to the extent of laying down what these principles postulate for the
purpose of promotion. In other words, this Court has only gone so
far as to lay down what is permissible within the four corners of
these principles and by no stretch of imagination has this Court in
any manner held that such postulations are stricto-sensu required
to be complied with.
98. The various decisions of this Court have only developed upon
the principles of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ by
explaining the criterions that may be postulated within the framework
of these principles for the purpose of promotion. The scope of the
aforesaid principles is summarized below: -
I) The principle of ‘Seniority-cum-Merit’ postulates that: -
i. Minimum requirement of merit and suitability which is
necessary for the higher post can be prescribed for the
purpose of promotion.
ii. Comparative Assessment amongst the candidates is not
required.
iii. Seniority of a candidate is not a determinative factor for
promotion but has a predominant role.
iv. Upon fulfilling the minimum qualifications, promotions must
be based on inter-se seniority.
[2024] 5 S.C.R. 1129

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II) The principle of ‘Merit-cum-Seniority’ postulates that: -
i. Merit plays a predominant role in and seniority alone
cannot be given primacy.
ii. Comparative Assessment of Merit is a crucial, though not
a mandatory, factor.
iii. Only where merit is equal in all respects can inter-se
seniority be considered. Meaning that a junior candidate
can be promoted over the senior if the junior is more
meritorious.
99. The underlying reason why the afore-stated postulations ought not
be understood as mandatory stems from the very fact that they
are not a result of a legislative creation, but rather one of judicial
interpretation whilst dealing with different promotion policies, different
service conditions, the varied nature and requirement of posts and
more importantly different sets of rules. Since, these postulations
have been laid down in different context and varied facts, it would
be preposterous to say that such postulations will apply uniformly to
all services and matters of promotion including the judicial services.
100. The principles of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’
should by no means be regarded as rigid or inflexible in nature,
otherwise, these judicial connotations would effectively assume the
character of statutory stipulation laid down through various judicial
pronouncements and would become applicable to all types of services,
posts and promotions. This would lead to the transgression by the
judiciary into the realms of policy making.
101. This Court in Lt. Gen. Rajendra Singh Kadyan (supra) whilst
explaining the intricacies between the principles of ‘Merit-cum-
Seniority’ and ‘Seniority-cum-Merit’ made a pertinent observation
that selection for promotion is based on different criteria depending
upon the nature of the post and requirements of service, and that
such criteria could be said to fall into three categories which include
‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’.
102. In Palure Bhaskar Rao (supra) and Kavita Kamboj (supra) this
Court equated the principle of ‘Merit-cum-Seniority’ and ‘Seniority-
cum-Merit’ as modes or methods of promotion. However, modes of
promotion should not be conflated with modalities of promotion. The
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expressions ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ in service
jurisprudence are nothing but principles which are used to broadly
categorize policies pertaining to promotions. They only lay down the
broad framework within which specific policies of promotion can be
elaborately laid down.
103. In Bhagwandas Tiwari (supra) this Court held that where for the
purpose of promotion a high threshold of minimum required marks
has been prescribed, the same would be an instance of ‘Merit-
cum-Seniority’, even in the absence of a comparative assessment
of merit, thus clearly indicating that these postulations are not
mandatory. As even without an element of comparative merit, the
promotion could be based on ‘Merit-cum-Seniority’, provided that
merit is given prominence over seniority in the promotion process.
Therefore, the only factor that sets apart ‘Merit-cum-Seniority’ from
‘Seniority-cum-Merit’ is whether emphasis is laid on merit or seniority.
All other ancillary factors or postulations such as comparative merit
or a minimum specified benchmark may or may not be material to
these principles.
104. The fluid nature of the principles of ‘Merit-cum-Seniority’ and
‘Seniority-cum-Merit’ is further evinced by the decision of this Court
in K. Samantaray (supra) wherein although the policy stipulated that
promotion would be on the basis of ‘Seniority-cum-Merit’, yet this
Court after going through the elaborate promotion policy held that a
third mode of promotion known as the “Hybrid Mode of Promotion”
has come to be recognized by this Court, wherein it is open for the
employer to specify the area and parameter of weight required to
be given to merit and seniority for the purpose of promotion. It was
further held that it is always open for the employer or the selection
body to decide and stipulate their own criteria for adjudging the claims
on the principles of ‘Seniority-cum-Merit’ or ‘Merit-cum-Seniority’
depending upon the class, category and nature of post and the
requirements of efficiency.
105. What can be discerned from the aforesaid is that, wherever the
expression ‘Merit-cum-Seniority’ or ‘Seniority-cum-Merit’ has been
supplemented by an elaborate promotion policy or statutory rules
clearly indicating the parameters on which promotions are to be
made, the mode of promotion assumes the character of a Hybrid
or Dynamic Mode of Promotion as held in K. Samantaray (supra).
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106. In such scenario, these principles serve as a beacon for the selection
body which, in exercise of its delegated legislative powers, can
formulate policies and lay down different criteria and conditions of
assessment for the purposes of promotion. It does so by providing
the selection body with the tools for formulating the promotion policy
in the form of the aforementioned postulations or criteria which are
permissible under these principles. Thereafter, the selection body
can, as a conscious choice, decide the criteria it deems necessary
or most suitable for the purpose of promotion keeping in mind the
nature of the post, the requirements of service, etc.
107. For instance, where the promotion is based on ‘Merit-cum-Seniority’,
the selection body may opt for a comparative assessment of merit,
more particularly, in cases where the promotions are competitive
in nature or it may say that seniority should only be considered
where merit is equal in all respect if the post is of such nature that
it requires significant knowledge and ability.
108. However, at the same time, this flexibility should not be understood
as a complete autonomy. While the statutory rules or, in the
absence of the same, the promotion policy formulated must be
followed, they must at the same time have some nexus or bearing
with the nature of the post and the requirements of service. For
instance, where the promotion is based on ‘Merit-cum-Seniority’
and the nature of promotion allows for superseding a senior, the
selection body whilst formulating the promotion policy cannot
simpliciter as a matter of choice refuse to provide for assessment
of comparative merit, as the promotion herein is by its nature
an accelerated form of promotion and as such comparative
assessment becomes crucial.
109. The principle of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ are
a flexible and a fluid concept akin to broad principles within which
the actual promotion policy may be formulated. They are not strict
rules or requirements and by no means can supplant or take the
place of statutory rules or policies that have been formulated,
if any. These principles are dynamic in nature very much like a
spectrum and their application and ambit depends upon the rules,
the policy, the nature of the post and the requirements of service.
The sketch below illustrates the broad spectrum in which these
principles operate: -
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110. Thus, the principles applicable to promotion such as the principle
of ‘Merit-cum-Seniority’ and ‘Seniority-cum-Merit’ can best be
described as two ends of a spectrum. They are broad categories or
frameworks for promotion and do represent the actual modalities by
which promotions are to take place. It is the rules and the promotion
policy, along with the intention of the legislature or the selection
board, as the case may be, that supplements these principles and
delineates the actual modality of how promotion is to take place.
Through these rules and promotion policy, the legislature or the
selection body specifies the area and the parameters or the weightage
which is to be given to the aspect of “Merit” and “Seniority” on the
said spectrum.
111. No doubt while construing the rule of ‘Seniority-cum-Merit’ or ‘Merit-
cum-Seniority’, some of the observations of the decided cases are
not uniform. In State of Mysore v. C. R. Seshadri & Ors. reported
in AIR 1974 SC 460, Krishna Iyer, J., held that if the criterion for
promotion is one of ‘Seniority-cum-Merit’, comparative merit may
have to be assessed, if length of service is equal or an outstanding
junior is available for promotion.
112. The decision of this Court in Sujata Kohli (supra) has been strongly
relied upon on behalf of the petitioner herein, however the same is
of no avail to them, as in the said case this Court had no occasion
to examine the meaning of the expression ‘Merit-cum-Seniority’
in reference to All India Judges’ Association (3) (supra). This
Court in Sujata Kohli (supra) only went so far as to say that
‘Merit-cum-Seniority’ means that neither merit can be forsaken
nor seniority alone can be given primacy. ‘Merit-cum-Seniority’
only stipulates that a balance must be maintained between ‘Merit’
and ‘Seniority’ with ‘Merit’ playing a more predominant role in the
selection process.
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113. Similarly, the decision in Dr. Kavita Kamboj (supra) has also been
strongly relied upon by the petitioners, but it is of no avail to them, as
the limited question that was involved in the said case was whether
minimum marks could be specified for the written exam and the viva
voce separately.
114. While laying down the promotion policy or rule, it is always open to
the employer to specify the area and parameter or the weightage
to be given in respect of merit and seniority separately, so long as
the policy is not a colourable exercise of power, nor has the effect
of violating any statutory scope of interference and other relatable
matters. [See K. Samantaray (supra)]
d. High Court as a custodian of the District Judiciary
under Article 235 of the Constitution.
115. We should be mindful of the fact that the High Court by virtue of its
power under Article 235 of the Constitution undertook the recruitment
process for the purpose of promotion. The High Court followed the
procedure which it had been following without any departure since
2011. In such circumstances, had the High Court departed from
the method of promotion which it had been following since 2011, it
could have been argued on behalf of the respondents that they had
legitimate expectation that the High Court would not deviate from the
method or process they had been adopting since 2011.
116. In the aforesaid context we may make a reference to R. v. Inland
Revenue Commissioners, ex parte M.F.K Underwriting Agents
Ltd. reported in [1990] 1 W.L.R. 1545 where Lord Justice of Appeal,
Thomas Bingham, while invoking fairness as a rationale for protecting
legitimate expectations, expressed the following: -
“If a public authority so conducts itself as to create a
legitimate expectation that a certain course will be followed
it would often be unfair if the authority were permitted
to follow a different course to the detriment of one who
entertained the expectation, particularly if he acted on
it [...] The doctrine of legitimate expectation is rooted in
fairness.”
117. In Madan Mohan Choudhary v. State of Bihar reported in (1999) 3
SCC 396 this Court held that the High Court’s control over the District
Judiciary under Article 235 of the Constitution is comprehensive and
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extends to a variety of matters including promotion. The relevant
observations read as under: -
“22. In order to ensure their independence, the control
over the subordinate courts has been vested in the High
Court under Article 235 [...]
23. Under this Article, the High Court’s control over the
subordinate judiciary is comprehensive and extends
over a variety of matters, including posting, promotion
and grant of leave. The three words, namely, “posting”,
“promotion” and “grant of leave” used in this article are
only illustrative in character and do not limit the extent of
control exercised by the High Court over the officers of
the subordinate judiciary.
xxx xxx xxx
26. From the scheme of the Constitution, as set out above,
it will be seen that though the officers of the subordinate
judiciary are basically and essentially government servants,
their whole service is placed under the control of the High
Court and the Governor cannot make any appointment or
take any disciplinary action including action for removal or
compulsory retirement unless the High Court is “consulted”
as required by the constitutional impact of both the Articles
233 and 234 and the “control” of the High Court indicated
in Article 235.”
(Emphasis supplied)
118. In High Court of Judicature for Rajasthan v. P.P. Singh & Anr.
reported in (2003) 4 SCC 239, it was held that laying down merit
criteria for appointment to selection grade was well within the domain
of the High Court under Article 235 of the Constitution. The relevant
observations read as under: -
“18. It is beyond any pale of controversy that the control
over the subordinate courts within the meaning of Article 235
of the Constitution of India is that of the High Court. Such
control of the High Court includes general superintendence
of the working of the subordinate courts, disciplinary
control over the presiding officers, disciplinary proceedings,
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transfer, confirmation and promotion and appointment etc.
Such control vested in the High Court is complete. [...]
xxx xxx xxx
24. The submission on behalf of the respondents to the
effect that in the matter relating to fixation of criteria for the
purpose of appointment to the selection grade, the two-
Judge Committee could not be made without consulting all
the Judges is stated to be rejected. The said submission
is based on a total misconception. Laying down the merit
criteria for appointment to the selection grade also was
within the domain of the High Court. It could not only lay
down such criteria but also amend or modify the same
from time to time. [...]”
(Emphasis supplied)
119. From the aforesaid discussion, it is clear that when it comes to
promotion of judicial officers of the District Judiciary, the control vests
with the High Court under Article 235 of the Constitution. The High
Court being the sole authority in this regard can clearly lay down
rules and policies pertaining to promotions which includes the power
to specify the criteria and parameters it deems most suitable and
appropriate for the purpose of promotion and the manner in which
promotion is to be made as long as it is within the contours of what
has been laid down in All India Judges’ Association (3) (supra).
Thus, now the only question that remains to be considered is, what is
the meaning assigned to “Merit-cum-Seniority” by All India Judges’
Association (3) (supra).
iv. What is ‘Merit-cum-Seniority’ for the purpose of Promotion
to the cadre of District & Sessions Judges?
a. Intention behind the decision in All India Judges’
Association (3).
120. The entire controversy revolves around the interpretation of Rule
5(1) of the 2005 Rules which provides that 65% of the total posts in
the cadre of District & Sessions Judge shall be filled by promotion
on the basis of the principle of ‘Merit-cum-Seniority’.
121. As discussed in the foregoing parts of this judgment, the decision
of this Court in All India Judges’ Association (3) (supra) has laid
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down the method of recruitment to the posts in the Higher Judicial
Service, i.e., District Judges and Additional District Judges. Prior to
the said decision, there were only two sources for recruitment to
the Higher Judicial Service – first, by promotion from amongst the
members of the District Judicial Service; and secondly, by direct
recruitment from among the members of the Bar.
122. This Court in All India Judges’ Association (3) (supra), with a view
to enhance the efficiency of the District judiciary and to create an
avenue of accelerated promotions for the relatively junior members
of the service, introduced two methods of appointment, one by way
of promotion, wherein 50% of the total posts were to be filled by
promotion on the basis of the principle of ‘Merit-cum-Seniority’ through
a test assessing the continued efficiency and adequate knowledge
of case-law of the judicial officers, and the remaining 25% of the
posts were to be filled up by promotions strictly on the basis of merit
through the limited departmental competitive examination. At the cost
of repetition, the relevant observations read as under: -
“27. At the same time, we are of the opinion that there has
to be certain minimum standard, objectively adjudged, for
officers who are to enter the Higher Judicial Service as
Additional District Judges and District Judges. While we
agree with the Shetty Commission that the recruitment to
the Higher Judicial Service i.e. the District Judge cadre
from amongst the advocates should be 25 per cent and
the process of recruitment is to be by a competitive
examination, both written and viva voce, we are of the
opinion that there should be an objective method of
testing the suitability of the subordinate judicial officers
for promotion to the Higher Judicial Service. Furthermore,
there should also be an incentive amongst the relatively
junior and other officers to improve and to compete with
each other so as to excel and get quicker promotion. In
this way, we expect that the calibre of the members of
the Higher Judicial Service will further improve. In order
to achieve this, while the ratio of 75 per cent appointment
by promotion and 25 per cent by direct recruitment to the
Higher Judicial Service is maintained, we are, however,
of the opinion that there should be two methods as far
as appointment by promotion is concerned : 50 per cent
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of the total posts in the Higher Judicial Service must be
filled by promotion on the basis of principle of merit-cum-
seniority. For this purpose, the High Courts should devise
and evolve a test in order to ascertain and examine the
legal knowledge of those candidates and to assess their
continued efficiency with adequate knowledge of case-law.
The remaining 25 per cent of the posts in the service shall
be filled by promotion strictly on the basis of merit through
the limited departmental competitive examination for which
the qualifying service as a Civil Judge (Senior Division)
should be not less than five years. The High Courts will
have to frame a rule in this regard.”
(Emphasis supplied)
123. The expressions “certain minimum standard, objectively adjudged”
and “in order to ascertain the legal knowledge of those candidates
and to assess their continued efficiency with adequate knowledge
of case law” in All India Judges’ Association (3) (supra) clearly
indicate that the intention was to test each candidate on their own
merit as this Court never mandated that a comparative assessment
of merit was also required. In other words, what is stipulated is
the determination of suitability of the candidates and assessment
of their efficiency based on whether they possess adequate
knowledge of case law. It goes without saying that some standards
of suitability and efficiency for continued service is required. The
High Court may deny promotion to a Civil Judge (Senior Division)
only in case the candidate is not suitable for being promoted to
the post of District & Sessions Judge. It was never the intention
of this Court that after taking the suitability test, a list should be
prepared based on inter-se merit and the judicial officers should
be promoted only if they fall in the said merit list. It cannot be
said to be a competitive exam. Only the suitability of the judicial
officer is to be assessed and once it is found that the candidate
has secured the requisite marks in the suitability test, they cannot
be thereafter ignored for promotion.
124. The first change brought around was the introduction of a mandatory
assessment of the suitability of the members of the District Judicial
Service before promoting them to the Higher Judicial Service. The
concept of assessment of suitability was introduced to ensure that a
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certain minimum standard is maintained in the Higher Judicial Service.
The method of devising a suitability test for this purpose was left to
the respective High Courts. However, broad guiding principles were
laid down by this Court on the contours of the suitability test. It was
directed that the suitability test must objectively test the following: -
a. Whether the candidate possesses legal knowledge?
b. Whether the candidate has displayed continued efficiency during
his tenure in the feeder cadre?
c. Whether the candidate possesses adequate knowledge of
case law?
125. The second change introduced by the aforesaid decision was the
creation of a third category of recruitment to the Higher Judicial
Service. While the allocation of seats for direct recruitment from
the members of the Bar was kept at 25% of the total posts in the
Higher Judicial Service, the erstwhile promotional category was
split up into two categories – firstly, 50% of the posts in the Higher
Judicial Service were directed to be filled by promotion on the basis
of ‘Merit-cum-Seniority’; and secondly, the remaining 25% of the
seats were directed to be filled by promotion strictly on the basis
of merit, through a limited departmental competitive examination.
126. We are of the view that the principle of ‘Merit-cum-Seniority’ stipulated
in Rule 5(1) of the 2005 Rules should be understood in accordance
with what has been observed by this Court in paragraphs 27 & 28
respectively of All India Judges’ Association (3) (supra).
127. It is amply clear from the aforesaid decision that this Court intended
to achieve two-fold objectives –
(i) First, to ensure that unlike the traditional promotion policy
under which seniority alone was considered for promotion, a
new policy should be devised under which seniority would be
considered for promotion, but only for those candidates who
possessed the minimum necessary standard of suitability for
the post, and;
(ii) Secondly, to prevent loss of motivation amongst the relatively
junior members of the service, a third category for promotion
to the Higher Judicial Service should be created, wherein
promotions would be given strictly on the basis merit, to
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be ascertained through a limited departmental competitive
examination.
128. Thus, while the comparison of inter-se merit to determine the most
meritorious candidates was the procedure to be adopted for filling up
the seats under the newly created category, it was never the intention
of this Court in the aforesaid decision to mandate the comparative
assessment of merit in the category of regular promotions based
on seniority. The only additional requirement which was provided for
by the aforesaid decision for this category of candidates was the
possession of certain minimum objectively determinable standard
of suitability. As long as a candidate possesses this standard of
suitability, it cannot be said that this Court intended, by the aforesaid
decision, to subject such a candidate to a mandatory comparative
merit assessment akin to the limited departmental competitive
examination and disregard the seniority of such a candidate to prefer
those candidates who may have scored a few marks more than him
in the suitability test.
129. The objective sought to be achieved by the introduction of a suitability
test in the regular promotional category was limited to the assessment
of a minimum standard of suitability. It would be incorrect to say that
the marks scored by a candidate in the suitability test are proportional
to the merit of the candidate. This can be understood with the aid of
an illustration – take a case wherein the minimum marks required
to be obtained in the suitability test is ‘x’; then for the purpose of
65% promotional quota, as soon as a candidate obtains ‘x’ marks
in the suitability test, such a candidate becomes eligible for being
considered for promotion in that category subject to their seniority
vis-à-vis the other suitable candidates. It cannot be said that a
candidate who obtains (x + 10) marks is more meritorious or more
suitable than those candidates who obtain ‘x’ or (x + 5) marks in
the suitability test. Every candidate who scores higher than or equal
to ‘x’ marks in the suitability test is considered equally suitable and
equally meritorious for the purpose of 65% promotional category.
130. We have discussed in detail in the foregoing paragraphs that the
concepts of ‘Merit-cum-Seniority’ or ‘Seniority-cum-Merit’ are flexible
in nature and do not prescribe any fixed or strait-jacket definitions.
These definitions take character and substance from the context in
which they are employed. Their full import and nuances only become
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visible when they are exposed to the guiding light of the overall
promotional policy of the organisation. The concept of promotions in
the District Judiciary is a peculiar one, and one that must be analysed
in its own unique context. Unlike most cases on promotions decided
by this Court where the interpretation or incorrect implementation of
the promotion policy contained in a statute have been in question,
the present case of promotions to the Higher Judicial Service is
one in which the statutory framework itself was created after the
decision in All India Judges’ Association (3) (supra). Thus, any
dispute arising out of the respective rules of promotions of different
States/Union Territories as devised by their respective High Courts
must be construed in the context of various decisions which have
ultimately shaped such rules.
131. How ‘Merit-cum-Seniority’ will apply to promotions within an
organization will ultimately depend on the statutory rules, if any, or
the promotional policy of such an organisation. We have discussed in
detail in the preceding paragraphs that the objective of this Court in All
India Judges’ Association (3) (supra) was to create a new category
for accelerated promotions and to introduce a test to ascertain the
suitability of candidates in the regular promotional category. While
the newly created category was strictly based on merit, the due
weightage on seniority in the regular promotional category was not
diluted in any manner except for the introduction of the suitability test.
We are aware that in a number of decisions of this Court, the term
‘merit’ has been infused with a competitive and comparative character,
however, we are of the opinion that whether the term ‘merit’ includes
a comparative element can only be ascertained from the context in
which it is employed and not in isolation from it. Merit only indicates
an assessment of qualities which are relevant for the post. It is not
synonymous to scores in the competitive examination. Competitive
examinations are merely one of the many ways in which the merit
of the candidate is determined. This Court in All India Judges’
Association (3) (supra) notes that merit must be determined based
on a limited competitive examination with respect to the 25% (now
10%) of the seats which are to be filled by merit. Thus, this Court
clarifies that merit in the context of the 25% (now 10%) of the seats
must be determined through the competitive examination while for
the 50% (now 65%) of the seats must be determined based on an
assessment of specific suitability parameters. Whether the idea of
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a ‘minimum threshold merit’ would be antithetical to the concept of
‘Merit-cum-Seniority’ would again depend on the context and the
manner in which the minimum threshold is applied.
132. 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.
The exact modalities of how merit and seniority are to be apportioned
is a legislative function and is to be performed keeping in mind the
unique requirements and circumstances of the organization. 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).
133. The contours of the words ‘Merit-cum-Seniority’ are drawn by this
Court in the lines immediately following these words. The phrase “for
this purpose”, as it appears in paragraph 27 of the aforesaid decision,
acts as a bridge between the words – “Merit-cum-Seniority” – their
substance. For the purpose of 65% promotional quota, this Court,
in the said paragraph, has defined “merit” as the possession of a
minimum standard, or suitability. This Court deliberately did not
impart any competitive or comparative character to the term and
such intention should be kept in mind while interpreting the term
‘Merit-cum-Seniority’ for the purpose of the 65% promotional quota.
134. 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.
135. 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
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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’. The
expressions used in the rules should be interpreted bearing in mind
the principles enunciated in the aforesaid decision, and not on the
basis of the various decisions of this Court that have been decided
in entirely different factual situations. Further, if the principle of
‘Merit-cum-Seniority’ is applied as argued by the petitioners, there
would necessarily be no difference between the categories of ‘merit’
(10%) and ‘Merit-cum-Seniority’ (65%). It must be noted that the
minimum qualifying service for the 65% category according to the
2005 Rules is two-years while that for the 10% category is five-years.
Thus, appointment to the former category given the lesser years of
minimum service allows relatively junior candidates to supersede
the senior candidates based on the suitability test. Thus, while
candidates who have two to five years of service will not be eligible
to apply for promotion for the 10% promotional quota, they may
still have the opportunity to apply and be considered for the 65%
quota based on securing a minimum of 40% (and 50% aggregate)
in each of the following indicators which measures the merit of
the candidate: suitability test, evaluation of ACR, assessment of
average disposal and evaluation of judgments. Thus, it is beyond
any doubt that the criteria prescribed for promotion of candidates
to the 65% promotional quota complies with the principle of ‘Merit-
cum-Seniority’.
136. Words used in a judgment are not to be read as words of a statute,
but should be understood in the context of the facts of a given case.
(See Ambica Quarry Works v. State of Gujarat, (1987) 1 SCC 213;
Bharat Petroleum Corporation Ltd. v. NR Vairamani, (2004) 8 SCC
579, Municipal Corporation Delhi v. Mohd Yasin, (1983) 3 SCC
229). The attempt on the part of the petitioners is to persuade us to
take the view that the connotation ‘Merit-cum-Seniority’ as figuring
in the 2005 Rules, should be strictly understood as all merit and
no seniority. This is not correct to our understanding. Such attempt
must necessarily fail as the words “Merit-cum-Seniority” as they
figure in the 2005 Rules read in conjunction with paragraphs 27
and 28 respectively of All India Judges’ Association (3) (supra),
should be interpreted in the context in which they have been used
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by this Court – which we have discussed elaborately in the foregoing
paragraphs
137. The petitioners have relied on the decision of this Court in
Thampanoor Ravi v. Charupara Ravi reported in (1999) 8 SCC
74 to contend that the term “Merit-cum-Seniority” has acquired a
technical meaning and thus, should be given the meaning which is
used ordinarily in relation to it. The relevant passage from the said
decision is extracted here: -
“22. In ascertaining the meaning of an expression used
in a statute, certain norms are adopted. If the legislature
has used an expression which has acquired a technical
meaning and such expression is used ordinarily in the
context of a particular branch of law, it must be assumed
that because of its constant use the legislature must be
deemed to have used such expression in a particular
sense as is understood when used in a similar context.
If an expression has acquired a special connotation in
law, dictionary or general meaning ceases to be helpful
in interpreting such a word. Such an expression must be
given its legal sense and no other. In this context, we
may refer to the weighty observation in the decision of
this Court in State of Madras v. Gannon Dunkerley & Co.
(Madras) Ltd. [AIR 1958 SC 560 : 1959 SCR 379] that a
term of well-recognised import in the general law should
be accepted as confining the meaning in interpreting the
Constitution. If the expression “undischarged insolvent” has
acquired a special meaning under the law of insolvency,
we must understand that that is the meaning that is sought
to be attributed to the expression used in Article 191(1)
(c) of the Constitution.”
138. The aforesaid contention of the petitioner deserves to be rejected
for two good reasons: -
(1) First, the observations in the said case have been made in the
context of a technical meaning used in a statute. In the present
case, the term ‘Merit- cum-Seniority’ as it appears in the 2005
Rules has been imported verbatim from the decision in All India
Judges’ Association (3) (supra) and thus has to be assigned
the meaning as given to it in the said case. Thus, it cannot be
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said that ‘Merit-cum-Seniority’ should be assigned the same
meaning as understood in other decisions of this Court, or as
assigned to it in different statutory provisions.
(2) Secondly, the term ‘Merit-cum-Seniority’, as elaborately
discussed hereinabove, is a term of flexible meaning and the
exact contours of it depend on the context and the policy in
furtherance of which it is used.
139. In Malik Mazhar Sultan & Anr. (3) (supra) this Court directed the
High Courts to be practical in matters of promotion to the cadre of
District & Sessions Judges and held that the 65% promotion quota
of the cadre of District & Sessions Judges should be filled on the
basis of the principle of ‘Seniority-cum-Merit’. This Court further held
that seniority should have a predominant role in giving promotions
to Civil Judge (Senior Division) and that the High Court may deny
only in case the judicial officer is not suitable for being promoted.
The relevant observations read as under: -
“3. We see large number of vacancies of District Judges
are lying vacant as the promotion of these posts are not
being done timely by the High Court. Considering the
large number of vacant posts of District Judges, the High
Court should take timely action to fill up these vacancies
keeping in mind the principle of seniority-cum-merit.
The High Court may deny promotion to a Civil Judge
(Senior Division) only in case he/she is not suitable for
being promoted and the seniority should always have a
predominant role in giving promotion to the Civil Judge
(Senior Division) to the post of District Judge. If the posts
of District Judges are not filled up in time it is likely that
sessions cases may not have timely trial, thereby delaying
the whole procedure of justice delivery system. We request
the High Court to be practical in the matter of promotion
and filling up the posts of the District Judges. It is also
brought to our notice that as the promotion policy itself
is not working properly, a large number of Civil Judges
(Junior Division) are continuing in the same post, causing
stagnation from about 15 to 18 years. This is because the
timely promotion is not being taken care of by the High
Court and this should be corrected at the earliest. Now
[2024] 5 S.C.R. 1145

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

we are told that a total number of 217 posts have been
advertised for appointment of Civil Judges (Junior Division)
and 12 posts of District Judges (direct).”
(Emphasis supplied)
H. FEW SUGGESTIONS TO MAKE THE SUITABILITY TEST
MORE MEANINGFUL
140. We have exhaustively discussed and explained the true meaning
to be assigned to the principle of ‘Merit-cum-Seniority’ in context of
Rule 5(1) of the 2005 Rules. However, we are of the view that this
debate should not come to an end as we propose 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. We are also
of the view that the minimum standard to be objectively assessed
by way of a suitability test should be made more efficacious and
productive. In this regard, we would like to suggest the following: -
(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.
I. CONCLUSION
141. We summarise our final conclusion as under: -
(A) What has been conveyed, in so many words, by this Court in
All India Judges’ Association (3) (supra) is that the suitability
of each candidate should be tested on their own merit. The
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aforesaid decision does not speak about comparative merit for the
65% promotional quota. In other words, what is stipulated is the
determination of suitability of the candidates and assessment of
their continued efficiency with adequate knowledge of case law.
(B) For the 65% promotional quota this Court in All India Judges’
Association (3) (supra) did not state that after taking the
suitability test, a merit list should be prepared and the judicial
officers should be promoted only if they fall in the said merit list.
It cannot be said to be a competitive exam. Only the suitability
of the judicial officer is determined and once it is found that
candidates have secured the requisite marks in the suitability
test, they cannot be thereafter ignored for promotion.
(C) However, we clarify that for the 65% promotional quota, it is for
a particular High Court to prescribe or lay down its own minimum
standard to judge the suitability of a judicial officer, including
the requirement of comparative assessment, if necessary, for
the purpose of determining merit to be objectively adjudged
keeping in mind the statutory rules governing the promotion
or any promotion policy in that regard.
(D) We find no fault with the promotion process adopted by the
High Court of Gujarat as the same fulfils the twin requirements
stipulated in paragraph 27 of All India Judges’ Association
(3) (supra) being: -
(I) The objective assessment of legal knowledge of the judicial
officer including adequate knowledge of case law and;
(II) Evaluation of the continued efficiency of the individual
candidates.
(E) The four components of the Suitability Test as prescribed under
the recruitment notice dated 12.04.2022 comprehensively
evaluate (i) the legal knowledge including knowledge of the
case law through the objective MCQ - based written test AND
(ii) the continued efficiency by evaluation of the ACRs, average
disposal and past judgments of the concerned judicial officer.
(F) We are of the view that if the contention of the petitioners were
to be accepted then it would completely obliterate the fine
distinction between the two categories of promotion in the cadre
[2024] 5 S.C.R. 1147

Ravikumar Dhansukhlal Maheta & Anr. v.
High Court of Gujarat & Ors.

of District & Sessions Judge by way of 65% promotion on the
basis of ‘Merit-cum-Seniority’ and 10% promotion strictly on the
basis of merit. In other words, the 65% quota for promotion will
assume the character of the 10% quota for promotion by way
of a departmental competitive examination which is distinct in
its nature since the latter is strictly based on merit.
(G) Deviating from the process of promotion duly followed by the
High Court of Gujarat since 2011 would cause grave prejudice to
those judicial officers who lost out in the previous selections to
the Higher Judicial Service despite having scored higher marks
in the suitability test since, judicial officers who were relatively
senior were promoted to the cadre of District & Sessions Judges.
Accepting the argument of the petitioners would completely flip
the process and displace the respondents once again, for a
contrary reason.
142. We clarify that this judgment shall not be construed to invalidate
the promotions to the Higher Judicial Service granted by other High
Courts based on a construction of their own rules and requirements
of service in the state judiciary. If any challenge to such promotion
process is pending, it shall be dealt with independently by the High
Court or the forum where any issue is pending.
143. For all the foregoing reasons, we have reached the conclusion that
the impugned final Select List dated 10.03.2023 is not contrary to
the principle of ‘Merit-cum-Seniority’ as stipulated in Rule 5(1)(I) of
the 2005 Rules.
144. In the result, the present petition fails and is hereby dismissed.
Interim Order granted earlier stands vacated.
145. The parties shall bear their own costs.
146. Pending application(s), if any, shall also stand disposed of.

Result of the case: Petition dismissed.

†
Headnotes prepared by: Ankit Gyan