Himachal Pradesh High Court
Unknown vs State Of Hp & Ors on 7 September, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan, P.S. Rana
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No.1466 of 2010 along with CWP No.1467, 1468, 8074 of 2010, CWP Nos. 6425 and 6586 of 2011.
Reserved on :11.8.2016 of Decided on: 7.9.2016 CWP No.1466 of 2010 rt Ranjeet Singh ...Petitioner Vs State of HP & ors ...Respondents CWP No.1467 of 2010 Vivek Sharma ...Petitioner Vs State of HP & ors ...Respondents CWP No.1468 of 2010 Gaurav Mahajan ...Petitioner Vs State of HP & ors ...Respondents CWP No.8074 of 2010 Avinash Chander ...Petitioner Vs State of HP & ors ...Respondents CWP No.6425 of 2011 Kanta Verma ...Petitioner Vs State of HP & ors ...Respondents CWP No.6586 of 2011 Kanta Verma ...Petitioner Vs State of HP & ors ...Respondents ::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 2 Coram:The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
.
The Hon'ble Mr. Justice P.S.Rana, Judge.
Whether approved for reporting?1Yes. For the Petitioner(s): Mr. Yudhbir Singh Thakur and Ms. Shree Chauhan, Advocates, for the petitioner(s) in CWP Nos. 1466, 1467 and 1468 of 2010.
of Mr. Sanjeev Bhushan, Senior Advocate with Ms. Abhilasha Kaundal, Advocate, for the petitioner in CWP No.8074 of rt 2010.
Mr. Ashwani K. Sharma, Senior Advocate with Mr. Nishan Kumar, Advocate, for the petitioner in CWP No.6425 of 2011 and CWP No.6586 of 2011.
For the Respondents: Mr. Shrawan Dogra, Advocate General with Mr.Kush Sharma, Dy AG and Mr.J.S.Guleria, Assistant Advocate General, for respondent No.1 in CWP Nos. 1466, 1467,1468 of 2010, 8074 of 2010, 6425 of 2011 and 6586 of 2011.
Ms. Jyotsna Rewal Dua, Senior Advocate with Ms. Charu Bhatnagar, Advocate, for respondent No.2 in CWP No. 8074 of 2010.
Mr. C.N. Singh, Advocate, for respondent No.2 in CWP Nos. 1466, 1467 and 1468 of 2010.
Mr. Sunil Mohan Goel and Mr. Suneet Goel, Advocates, for respondent No.5 in CWP Nos. 1466, 1467,1468 of 2010.
Mr. Suneet Goel, Advocate for respondent No.5 in CWP Nos.8074 of 2010 and 6425 of 2011 for respondent No.3 Mr. George, Advocate for respondent No.6 in CWP Nos. 1466, 1467, 1468 of Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 32010, 8074 of 2010, for respondent No. .
6, for respondent No.4 in CWP No.6425 of 2011 and for respondent No.5 in CWP No.6586 of 2011.
Mr. Vikas Rathore, Advocate for respondent No.2 in CWP Nos.6425 of 2011 and 6586 of 2011.
__________________________________________________ of Tarlok Singh Chauhan J.
Since common questions of law and facts arise rt for consideration in these petitions, therefore, they were taken up together for hearing and are being disposed of by a common judgment.
2. Petitioners and private respondents are all Judicial Officers. Petitioners were admittedly senior to the private respondents in the cadre of Civil Judge (Junior Division). However, private respondents scored a march over them in the promotion/selection to the post of Civil Judge (Senior Division) and aggrieved by such promotion have filed these writ petitions.
3. On 16.3.2004, the State in exercise of powers conferred by Articles 233, 234 and proviso to Article 309 of the Constitution of India read with Sub section (1) of Section 4 of the H.P. Judicial Officers (Pay and Conditions of Service), Act, 2003 in consultation with the High Court of Himachal Pradesh and the State Public Service Commission framed Rules, regulating the Recruitment and Conditions of Service of ::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 4 Members of different cadres of H.P. Judicial Service, .
nomenclatured as Himachal Pradesh Judicial Service Rules, 2004. Some of the salient provisions of these rules are as under.
of ".Rule 2(1) (g) 'Regulations' means the regulations framed by the High Court under these rules for the following purposes:-
rt
(i) To prescribe the syllabus for the competitive examination and suitability test to be conducted by the High Court for the cadre of District Judges/ Addl.
District Judges and the cadre of Civil Judges (Jr. Division).
(ii) ..............
(iii) ..................
(iv) To prescribe the syllabus and to conduct the
departmental examinations for the different cadres of the H.P. Judicial Service.
(v) To prescribe the syllabus for and to conduct the special examinations or tests, if any, required to be passed during the period of probation or officiation in relation to all the appointments to the service by direct recruitment or by promotion,
(vi) To evaluate the performance of the officers and assign marks for the competitive examination to be conducted by the High Court for the cadre of District Judges/Addl. District Judges,
(vii) ..........
(viii) To evaluate the performance of the officers (appointed to the service) in relaxation to departmental and special examinations or tests.
(ix) .......
Rule 4 (2) The Civil Judges (Sr. Division) shall be promoted by the High Court of Himachal Pradesh on the basis of merit-
::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 5cum-seniority. Civil Judges (Junior Division) shall be .
appointed by the Governor in consultation with the Himachal Pradesh Public Service Commission and High Court of Himachal Pradesh.
Rule - 5. Method of recruitment, qualification and age limit.- In respect of each category of posts specified in column (2) of of the Table below, the method of recruitment and minimum qualification, age limit etc. shall be as specified in the corresponding entries in columns (3) and (4) thereof. rt______________________________________________ TABLE UNDER RULE - 5 Sr. Cadre Method of Recruitment Qualification, age limit No and experience etc.
1. XXX XXX XXX
2. Civil Judge (Sr. By promotion from the Minimum experience of cadre of Civil Judge 5 years in the cadre of Division) (Jr. Division) on the Civil Judge (Junior basis of merit-cum- Division).
seniority.
Note. - The appointing
authority, may in
situations where Civil
Judges (Jr. Division)
with the aforesaid
requisite experience are
not available, relax the
aforesaid minimum
experience criteria but
in no case shall such
relaxation go below
three years.
4. On 4.1.2007, the Hon'ble Supreme Court in the matter of Malik Mazhar Sultan and another Vs. Uttar Pradesh Public Service Commission & Others, 2008 (17) SCC 703, issued various directions for filling up of vacancies in the cadre of District Judge, Civil Judge (Sr. Division) and requested the High Courts to constitute a Committee of two or ::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 6 three Judges to monitor and oversee that timely selection and .
appointment of Judicial Officers are made. Relevant observations read thus:
"9. We request the Chief Justice of each High Court to of constitute a committee of two or three judges to monitor and oversee that timely selection and appointment of judicial officers is made. The Chief Justice is further rt requested to constitute a special cell in the name of 'Selection and Appointment' in the High Court or under such other name as the learned Chief Justice may be consider proper with an officer of the rank of Registrar for assisting the Committee and the Chief Justice for complying with the aforesaid time schedule."
5. This led to issuance of notification dated 20.9.2008 i.e. Himachal Pradesh Judicial Services (First Amendment) Rules, 2008 which affected amendment of table under Rule 5, whereby the post of Civil Judge (Senior Division) was required to be filled up from the cadre of Civil Judge (Junior Division) on the basis of merit-cum-seniority from the Judicial Officers in the cadre of Civil Judges (Junior Division) having the minimum experience of 5 years in the said cadre.
6. On 28.3.2009, the High Court in exercise of the powers conferred under Rule 2 (1) (g) read with Rule 5 of the Himachal Pradesh Judicial Service Rules, 2004, framed regulations providing for merit-cum-suitability test for promotion to the cadre of Civil Judges (Senior Division) from amongst the ::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 7 Civil Judges (Junior Division) in terms of clause 1(a) of the table .
given below:
Short Title: 1. The Regulations may be called "The Himachal Pradesh Judicial Service {Suitability Test for Promotion to the cadre of Civil Judges (Senior Division)} of Regulations, 2009."
Commencement: 2 These Regulations shall come into force with immediate effect.
rt Suitability test: 3. Suitability of an officer of the cadre of Civil Judge (Junior Division) for promotion to the cadre of Civil Judges (Senior Division) shall be determined on the basis of the examination of judgments, assessment of the A.C.Rs for the last 5 years, as under:
(i) Evaluation of 5 civil and 5 criminal judgments rendered by the eligible Judicial Officer during the last one year in any month to be specified by the Hon'ble Chief Justice. ...50 marks.
Provided that where the concerned Civil Judge (Junior Division) is working on a post in which he does not have to write judgments such as a deputation post in the High Court or in any other authority or Forum or Government etc. the expression "last one year" shall be construed as the last one year prior to his aforesaid posting meaning thereby "such a year" in which he was occupying a post/holding an appointment in which he had to write judgments.
(ii) Evaluation of ACRs for the last five
years ......40 marks
(iii) Performance in the oral interview
...10 marks
Total ...100 marks
Qualifying Marks. 4 The qualifying marks in the suitability test
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8
shall be 60%.
.
Zone of 5 The zone of consideration shall ordinarily be
Consideration. three times the available and anticipated
vacancies.
Constitution of 6 The Full Court shall constitute two
Committees. committees, each consisting of at least two
Judges, hereinafter referred to as "First of Committee" and "Second Committee".
Functions and 7 1. The "First Committee" shall evaluate factors to be ACRs of the eligible Judicial Officers and considered by the rt conduct viva voce test.
Committees
2. While assessing the ACRs, the "First Committee" shall make evaluation on the basis of the entries in the various columns of the ACRs and the assessment will not be made only on the entry made against the last column (net result) so far as the ACRs are concerned, or the ultimate opinion of the District and Sessions Judge. The Committee shall also examine the performance in the oral interview.
3 (a) The "Second Committee" shall examine the judgments of the eligible Judicial Officers.
(b) The judgments shall be evaluated having due regard to the following factors:-
(i) Knowledge of law
(ii) Collation and appreciation of facts
(iii) Correctness of conclusions
(iv) Language
(v) Clarity and reasoning.
(c) The final marks obtained shall be worked out by process of averaging, i.e. to say, by dividing the gross total marks allocable for all the judgments by the number of judgments examined.
Preparation of 8 From amongst such Judicial officers who merit-cum-suitability have qualified the suitability test by obtaining test. the qualifying marks as prescribed in Regulation No. 4 the promotion shall be made on the basis of principle of seniority in ::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 9 the lower cadre."
.
7. On 14.7.2009 the Hon'ble Supreme Court in Malik Mazhar Sultan and another Vs. Uttar Pradesh Public Service Commission & Others, (2009) 17 SCC 583 held that of the officers should not be subjected to oral interview for the purpose of promotion to the post of Civil Judge (Sr. Division).
rt It further directed that if any High Court/State Government had framed such rules pursuance to the directions of the Court dated 4.1.2007, such rule should also be considered as deleted.
8. This led to issuance of notification on 2.9.2009 whereby amendments in 'The Himachal Pradesh Judicial Service (Suitability Test for Promotion to the cadre of Civil Judges (Senior Division) from amongst the Civil Judges (Junior Division), Regulations 2004" to be called "The Himachal Pradesh Judicial Service (Suitability Test for Promotion to the cadre of Civil Judges (Senior Division) from amongst the Civil Judges (Junior Division) (1st amendment) Regulations, 2009"
were carried out thereby deleting the Clause relating to Performance in the 'oral interview'.
9. On 14.9.2009 vacancies of Civil Judge (Sr. Division) were invited and selection process initiated and thereafter result was declared.
::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 1010. However, the petitioners could not qualify and .
aggrieved by their non-promotion submitted representations, which were rejected by the High Court, constraining the petitioners to file these petitions on the following grounds:
of "(i) Selection of respondents No.3 to 6 is bad in law, contrary to established norms and procedure.
(ii) rt Himachal Pradesh Judicial Services (Suitability Test for promotion to Civil Judges (Sr.Divn) Regulation 2009 ultra vires to the provision of Himachal Pradesh Judicial Service Rules, 2004.
(iii) Beyond the power of High Court to frame such rules.
(iv) The Himachal Pradesh Judicial Service Rules 2004 does not prescribe any suitability test for promotion to the post of Civil Judge (Sr.Divn) Regulation of 2004 as amended in 2009 suffers from the vires of excessive delegation of power and as such cannot be sustained.
(v) No criteria for the assessment of ACRs in the Regulations."
11. Based upon the aforesaid grounds, the petitioners have prayed for the following reliefs;
"1. That the selection of Respondents No.3 to 6 as Civil Judge (Senior Division) may be quashed and set aside.
2. That Himachal Pradesh Judicial Service (Suitability Test for Promotion to Civil Judges (Senior Division) Regulations 2009 may be declared to be ultra vires to the provisions of Himachal Pradesh Judicial Service Rules- 2004 and may be quashed and set aide.
3. That the respondent No.2 may be directed to conduct the selection process for the post of Civil Judge (Senior Division) in accordance with the principle of merit-cum- seniority as contained in Himachal Pradesh Judicial Service Rules-2004.
4. That alternatively respondent no.2 may be directed to adopt valid and proper criteria for evaluation of ACRs and Judgments for promotion to the post of Civil Judge (Senior Division) ::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 11
5. That the petitioner may be promoted to the post of Civil .
Judge (Senior Division) in accordance with the principles of merit-cum-seniority giving due considerations to the seniority."
12. The High Court in its reply has averred that the petitioners were considered for promotion along with other of eligible candidates, however, they failed to secure the minimum marks as prescribed under the Regulations for merit-cum-
rt suitability test under the regulations for promotion to the posts of Civil Judges (Sr. Division) and, as such were not promoted.
We have heard the learned counsel for the parties and gone through the materials on record.
13. It is vehemently argued by the petitioners that the members of the Selection Committee could not have down graded ACRs, particularly when the same had been accepted by the Hon'ble Chief Justice as Accepting Authority and earlier to that these had already been submitted to the Reviewing Authority (Administrative Judge), who, too, is an Hon'ble Judge of this court.
14. We are not impressed by such submission as the selection committee is not guided merely by the overall grading that may be recorded in the ACR and in order to ensure justice, equity and fair play, is required to make its own assessment on the basis of in-depth examination of service records of eligible officers, deliberating on the quality of the ::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 12 officers on the basis of performance as reflected under .
various columns recorded by the Reporting/Review Officer/Accepting Authority in the ACRs for different years and then finally arrive at the classification to be assigned to each eligible officer in accordance with the provisions of of promotions, regulations/rules.
15. rt It has come on record that the High Court in terms of Regulation 6 of the Regulations dated 28.3.2009, constituted two committees consisting of two Hon'ble Judges, referred therein as the First Committee and the Second Committee as provided under Regulation No.7. The First Committee evaluated the ACRs of all Judicial Officers by taking into consideration all the entries in various columns of the ACRs and the assessment thereafter was independently made not influenced by the entries made against last column 'Net Result' or the ultimately decision of the District & Sessions Judge. This was done as per provisions of Regulation 7.2.
16. Similarly, the Second Committee as per provisions of Regulation 7.3 (a), (b) & (c) had examined the judgments delivered by the Judicial Officers bearing in mind:
(i) Knowledge of law;
(ii) Collation and appreciation of facts
(iii) Correctness of allegations
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13
(iv) Language
.
(v) Clarity and reasoning.
Assessment of merit of each and every eligible officer was independently made by the Committees and thereafter the selections were made.
of
17. As already observed earlier, the criteria for rt selection as also the composition and constitution of the Committees to evaluate the ACRs and the judgments of the Judicial Officers was pursuant to and in compliance of the directions of the Hon'ble Supreme Court in Malik Mazhar Sultan and another vs. Uttar Pradesh Public Service Commission & Ors. 2008 (17) SCC 703 as clarified in Malik Mazhar Sultan and another vs. Uttar Pradesh Public Service Commission & Ors. 2009 (17) SCC 583.
18. Notably, petitioners themselves have appended with their petitions copy of the guidelines framed by the government for effecting promotions on the basis of merit-cum-
seniority wherein it is clearly provided that the DPC is to independently assess the Annual Confidential Reports of the candidates and grade them as 'average', 'good', 'very good' and 'outstanding'. It is further provided that while grading officers, as aforesaid, one should not mechanically follow the grading given by the Reporting Officer. The relevant portion of the instruction is extracted below and reads thus:
::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 14"While grading officers as "Outstanding", "Very Good"
.
and "Good", one should not mechanically follow the grading given by the Reporting Officer. They should also take into account the nature of the job against which an individual is posted as well as its responsibilities......."
19. A perusal of the aforesaid instructions leave no of manner of doubt in our mind that the Selection Committees was not to be guided merely by the overall grading in the ACRs, but rt was required to make its own assessment on the basis of entries in the ACRs.
20. Petitioners would then seek indulgence of this court to interfere with the grading given by the Selection Committee, which to our mind, is not permissible in view of the consistent law on the subject, as discussed hereinafter.
21. In Union Public Service Commission Vs. Hiranyalal Dev and others AIR 1988 SC 1069, the Hon'ble Supreme Court held as under:
"5.........How to categorize in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee. The jurisdiction to make the selection is vested in the Selection Committee........"
22. In the case of Dalpat Abasaheb Solunke Vs. Dr.B.S. Mahajan etc, AIR 1990 SC 434, the Hon'ble Supreme Court held as under:
::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 15"9........It is needless to emphasise that it is not the .
function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the Candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject........"
of
23. In the case of State of Madhya Pradesh Vs. Shrikant Chapekar, JT 1992 (5) SC 638, the Hon'ble rt Supreme Court held as under:
"4.We are of the view that the Tribunal fell into patent error in substituting itself for the DPC. The remarks in the annual confidential report are based on the assessment of the work and conduct of the official/officer concerned for a period of one year. The Tribunal was wholly unjustified in reaching the conclusion that the remarks were vague and of a general nature. In any case, the Tribunal 'outstepped its jurisdiction in reaching the conclusion that the adverse remarks were not sufficient to deny the respondent his promotion to the post of Deputy Director. It is not the function of the Tribunal to assess the service record of a Government servant and order his promotion on that basis. It is for the DPC to evaluate the same and make recommendations based on such evaluation. This Court has repeatedly held that in a case where the Court/Tribunal comes to the conclusion that a person was considered for promotion or the consideration was illegal, then the only direction which can be given is to reconsider his case in accordance with law. It is not within the competence of the Tribunal, in the fact of the present case, to have ordered deemed promotion of the respondent."
24. In Nutan Arvind Vs. Union of India & ors (1996) 2 SCC 488, the Hon'ble Supreme Court has held that when a ::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 16 High level committee had considered the respective merits of .
the candidates, assessed the grading and considered their cases for promotion, the court cannot sit over the assessment made by the DPC as an appellate authority.
of
25. In the case of Ramanand Prasad Singh & another Vs. Union of India & others (1996) 4 SCC 64, the rt Hon'ble Supreme Court held as under:
"14.........The Committee applies its mind to the service records and makes its own assessment of the service records of the candidates marking them as outstanding, very good. good and so on. The Selection Committee does not necessarily adopt the same grading which is given by the Reporting/Reviewing Officer in respect of each of the candidates. In fact the Selection Committee makes an overall relative assessment of the confidential report dossiers of the officers in the zone of consideration. It thus does not evaluate the confidential report dossier of an individual in isolation. It is after this comparative assessment that the best candidates are put in the Select List........"
26. The Hon'ble Supreme Court in the case of UPSC Vs. K.Rajaiah (2005) 10 SCC 15, has held that the power to classify as 'outstanding', 'very good', 'good' and 'unfit' is vested with the Selection Committee. That is a function incidental to the selection process. The classification given by the State Government authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by and large guided by the classification adopted by the State Government, but for ::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 17 good reasons, the Selection committee can evolve its own .
classification which may be variance with the gradation given in the ACRs.
27. Again, the Hon'ble Supreme Court in the case of UPSC Vs. L.P. Tiwari (2006) 12 SCC 317, has held that it is of now more or less well settled that the evaluation made by an expert committee should not be easily interfered with the courts rt which do not have the necessary expertise to undertake the exercise that is necessary for such purpose.
28. In the case of Union of India & Another Vs. S.K. Goel and others (2007) 14 SCC 641, it has been held by the Hon'ble Supreme Court as under:
"28........In the absence of any violation, the impugned order of the High Court while undertaking a judicial review under Art. 226 of the Constitution of India, is wholly unjustified. Since the matter of seniority has been well settled and this Court in a plethora of cases has held that the seniority/promotion granted on the strength of DPC selection should not be unsettled after a lapse of time. Therefore, in the facts and circumstances of the present case, where there is no adverse remarks whatsoever against respondent No.1, the High Court ought not to have interfered with and passed the impugned direction. This apart, as per the instructions contained in para 6.21 of DOPT Order No. 22011/5/86/Estt. D dated 19.4.1981, as amended, the DPC is not required to be guided merely by the overall grading, if any, that may be recorded in the CRs but to make its own assessment on the basis of the entries in the CRs. The DPC enjoyed full discretion to devise its method and procedure for objective assessment of ::: Downloaded on - 15/04/2017 21:10:49 :::HCHP 18 suitability and merit of the candidate being considered by it.
.
Hence, the impugned order of the High Court, in our opinion, is liable to be set aside."
29. The Hon'ble Supreme Court in the case of M.V. Thimmaiah and Others Vs. Union Public Service of Commission and another (2008) 2 SCC 119, reaffirmed the aforesaid view holding that the view taken by the High Court rt was correct that it is always within the power of the Selection Committee to record its own assessment about the selection which may be at variance with that of the reporting officer or reviewing officer.
30. In the case of Union of India & ors Vs. S.P. Nayyar, (2014) 14 SCC 370, it has been held by the Hon'ble Supreme Court as under:
"11.It is settled that High Court under Article 226 of the Constitution of India cannot sit in appeal over the assessment made by the DPC. If the assessment made by the DPC is perverse or is not based on record or proper record has not been considered by the DPC, it is always open to the High Court under Article 226 of the Constitution to remit the matter back to the DPC for recommendation, but the High Court cannot assess the merit on its own, on perusal of the service record of one or the other employee.
12. The selection to the post of Addl. DIG is based on merit- cum- suitability which is to be adjudged on the basis of ACRs of different candidates. The merit position can be adjudged by the Selection Committee on appreciation of their Character Roll. In absence of the Character roll of other candidates, who were also in the zone of promotion, it is not ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 19 open to the High Court to assess the merit of one individual .
who moves before the High Court, to give a finding whether he comes within the zone of promotion or fit for promotion."
31. In addition to the aforesaid, we also find that there are no allegations of malafides, violation or infraction of the of rules and that being the case, this court cannot sit as an appellate authority to examine the recommendations of the rt Selection Committee like the court of appeal. The discretion to make recommendation has to be given to the Selection Committee alone and the courts rarely sit in appeal to examine the selection of the candidates nor is it the business of the court to examine each candidate and record its opinion. Moreover, it is settled that the function of the Selection Committee is neither judicial nor adjudicatory, it is purely administrative.
32. It is equally settled that this court cannot arrogate to itself the power to judge the comparative merit of the candidates and consider the fitness and suitability for promotion, it is the job of DPC. That apart, this court, while exercising its power of judicial review, will not sit in appeal over the assessment made by the DPC, unless the same is perverse or is not based on record or proper record has not been considered by the DPC and even in such cases, the court will only remit the matter back to the DPC for recommendation, but will not assess the merit of its own on perusal of the service record of one or the other employee. However, as observed ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 20 earlier, in absence of bias or malafides, even this ground will .
not be available to the petitioners.
33. Moreover, the petitioners have failed to point out any rule or regulation requiring the Selection Committee to of record reasons. In the absence of any such legal requirement, the selection made without recording reasons cannot be rt faltered with. Even otherwise, giving of reasons for decision is different from and in principle distinct from the requirement of procedure or fairness. The procedure or fairness is the main requirement in the administrative action. The 'fairness' or 'fair procedure' in the administrative action has to be observed and the Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant considerations. But there is nothing on record to suggest that the Selection Committee did anything contrary.
34. As already observed earlier, petitioners have not raised or levelled directly or indirectly or even tacitly any allegations or malafides against any of the members of the Selection Committee. In fact, none of the petitioners in any of these petitions have pleaded or raised the question that the DPC had not adopted same or similar criteria or assessing/ making the evaluation of the eligible Judicial Officers ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 21 considering the ACRs/service records and judgments. It is .
also not in dispute that the criteria adopted by the DPC was uniformally applied in respect of all the eligible officers, who together were considered in one go by the same members of the DPC for their assessment/evaluation of the ACRs/service of records and judgments and, therefore, in such circumstances, there will be no question or hardly any question of any rt arbitrariness.
35. At this stage, we may also notice that this court on 18.9.2015, after having heard the matter for some time, directed respondent No.2 (High Court) to place on record the reports of both the committees i.e. First Committee which evaluated the ACRs of all the Judicial Officers and the Second Committee which evaluated the judgments of the Judicial Officers in terms of provisions contained in Regulation 6, 7.2 and 7.3 of the Regulations.
36. In compliance to the aforesaid order, reports of the Committees were placed as Annexures R-2/A and R-2/B respectively. The final marks sheet were then placed and thereafter unanimously approved by the Hon'ble Full Court vide Annexure R-2/C. ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 22
37. In such circumstances, the further question that .
falls for our consideration is the scope of judicial review in matters which have been approved by the Hon'ble Full Court.
38. It cannot be disputed that the Full Court acts on of the collective wisdom of all Judges and, therefore, the exercise undertaken by the Full Court is not ordinarily rt amenable to judicial review except under extra ordinary circumstances.
39. Here, it would be equally relevant to refer to the following observations of the Hon'ble Supreme Court in Syed T.A. Naqshbandi & ors Vs. State of Jammu & Kashmir & ors (2003) 9 SCC 592, wherein it was inter alia held thus:
"10. ....Neither the High Court nor this Court, in exercise of its powers of judicial review, could or would at any rate substitute themselves in the place of the Committee/Full Court of the High Court concerned, to make an independent reassessment of the same, as if sitting on an appeal. On a careful consideration of the entire materials brought to our notice by learned counsel on either side, we are satisfied that the evaluation made by the Committee/Full Court forming their unanimous opinions is neither so arbitrary or capricious nor can be said to be so irrational as to shock the conscience of the Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions a vast range of multiple factors play a vital and important role and no one factor should be allowed to be overblown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. Viewed ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 23 thus, and considered in the background of the factual .
details and materials on record, there is absolutely no need or justification for this Court to interfere in the matter, with the impugned proceedings."
40. In this context, it shall be apt to re-produce the following observations of the Hon'ble Supreme Court in of Rajendra Singh Verma Vs. Lieutenant Governor (NCT of Delhi) and others (2011) 10 SCC 1.
rt "218. On a careful consideration of the entire material, it must be held that the evaluation made by the Committee/Full Court, forming their unanimous opinion, is neither so arbitrary nor capricious nor can be said to be so irrational, so as to shock the conscience of this Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions, a vast range of multiple factors play a vital and important role and no one factor should be allowed to be blown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. In the very nature of things it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some monstrous thing which ought not to have taken place has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court.
219. Viewed thus, and considered in the background of the factual details and materials on record, there is absolutely no need or justification for this Court to interfere with the impugned proceedings. Therefore, the three appeals fail and are dismissed. Having regard to the facts of the case, there shall be no order as to costs."
::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 2441. In Registrar General, Patna High Court Vs. .
Pandey Gajendra Prasad and others, AIR 2012 SC 2319, the Hon'ble Supreme Court after reviewing the entire case law reiterated the principles laid down from time to time with regard to the scope of judicial review in such like cases and of held that when the report of the Administrative Committee was put up before the Full Court which takes a conscious decision rt to award the punishment/dismissal from service, then it would be very difficult rather almost impossible to subject such an exercise to judicial review except in extra ordinary cases.
42. Yet again in recent decision in High Court of Judicature of Patna, through Registrar General Vs. Shyam Deo Singh & ors (2014) 4 SCC 773, after referring to the earlier decision in Syed T.A. Naqshbandi Vs. State of Jammu & Kashmir, (2003) 9 SCC 592, the limited judicial review that is permissible was reiterated by the Hon'ble Supreme Court in para 8 of the judgment, which reads thus:-
"8.The importance of the issue can hardly be gainsaid. The evaluation of the service record of a judicial officer for the purpose of formation of an opinion as to his/her potential for continued useful service is required to be made by the High Court which obviously means the Full Court on the administrative side. In all High Courts such evaluation, in the first instance, is made by a committee of senior Judges. The decision of the Committee is placed before the Full Court to decide whether the recommendation of the Committee should be accepted or not. The ultimate ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 25 decision is always preceded by an elaborate consideration .
of the matter by Hon'ble Judges of the High Court who are familiar with the qualities and attributes of the judicial officer under consideration. This is also what had happened in the present case. The very process by which the decision is eventually arrived at, in our view, should permit a limited judicial review and it is only in a rare case of where the decision taken is unsupported by any material or the same reflects a conclusion which, on the face of it, cannot be sustained that judicial review would be rt permissible."
43. What, therefore, emerges from the aforesaid exposition of law is that where the Full Court of the High Court recommends any particular action on the administrative side, the High Court on the judicial side has to exercise great caution and circumspection in setting aside that order because it is a complement of all the High Court Judges, who act on their collective wisdom. In the very nature of things it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some monstrous thing which ought not to have taken place has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court.
::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 2644. It is next contended by the petitioners that they .
being senior to the private respondents, had legitimate expectation of being promoted earlier to them.
45. The doctrine of legitimate expectation has been of subject matter of a recent decision of the Hon'ble Supreme in Union of India & Another vs. Lieutenant Colonel P.K. rt Choudhary and others (2016) 4 SCC 236, wherein it was observed as under:
"51. Halsbury's Laws of England, Fourth Edition, Volume I(I) 151 explains the meaning of "Legitimate Expectation" in the following words:
"81. Legitimate expectations. -- A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice.
The existence of a legitimate expectation may have a number of different consequences; it may give locus standi to seek leave to apply for judicial review; it may mean that the authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so; or it may mean that, if the authority proposes to defeat a person's legitimate expectation, it must afford him an opportunity to make representations on the matter. The courts also distinguish, for example in licensing cases, between original applications, applications to renew and revocations; a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason not to do so, and may therefore be entitled to greater procedural protection than a mere applicant for a grant." (emphasis supplied)
52. Legitimate expectation as a concept has engaged the attention of this Court in several earlier decisions to which ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 27 we shall presently refer. But before we do so we need only .
to say that the concept arises out of what may be described as a reasonable expectation of being treated in a certain way by an administrative authority even though the person who has such an expectation has no right in law to receive the benefit expected by him. Any such expectation can arise from an "express promise" or a "consistent course of practice of or procedure" which the person claiming the benefit may reasonably expect to continue. The question of redress which the person in whom the legitimate expectation arises rt can seek and the approach to be adopted while resolving a conflict between any such expectation, on the one hand, and a public policy in general public interest on the other, present distinct dimensions every time the plea of legitimate expectation is raised in a case.
53. In Food Corporation of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 one of the earlier cases on the subject this Court considered the question whether Legitimate Expectation of a citizen can by itself create a distinct enforceable right. Rejecting the argument that a mere reasonable and legitimate expectation can give rise to a distinct and enforceable right, this Court observed: (SCC p. 76, para 8) "8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny.::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 28
The doctrine of legitimate expectation gets .
assimilated in the rule of law and operates in our legal system in this manner and to this extent."
(emphasis supplied)
54. To the same effect is the decision of this Court in Union of India v. Hindustan Development Corporation and Ors. (1993) 3 SCC 499, where this Court summed up the legal of position as under: (SCC pp. 540 & 546-47, paras 28 & 33) "28..... For legal purposes, the expectation cannot be rt the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense."
* * *
33. On examination of some of these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore, even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 29 denied or restricted. A case of legitimate expectation .
would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise of to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of rt change of old policy, the courts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the court is satisfied that a case of legitimate expectation is made out then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors." (emphasis supplied)
55. Reference may also be made to the decision of this Court in Punjab Communications Ltd. v. Union of India and Ors. (1999) 4 SCC 727, where this Court held that a change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury reasonableness." The choice of policy is for the decision-maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based merely on legitimate expectation without anything more cannot ipso facto give a right. Similarly in Dr. Chanchal Goyal (Mrs.) v. State of Rajasthan (2003) 3 SCC 485, this Court declined relief on the plea of legitimate expectation on the ground that the appellants had not shown as to how any act was done by the authorities which created an impression that the conditions attached to the original appointment order were waived. No legitimate expectation could be, declared this Court, claimed on such unfounded ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 30 impression especially when it was not clear as to who and .
what authority had created any such impression. The decisions of this Court in Ram Pravesh Singh v. State of Bihar (2006) 8 SCC 381, Sethi Auto Service Station and Anr.
v. Delhi Development Authority and Ors. (2009) 1 SCC 180, Confederation of Ex- servicemen Association v. Union of India (2006) 8 SCC 399, and State of Bihar and Ors. v.
of Kalyanpur Cements Ltd. (2010) 3 SCC 274, reiterate the legal position stated in the decisions earlier mentioned.
rt
56. In Monnet Ispat and Energy Ltd. v. Union of India and Ors. (2012) 11 SCC 1, this Court reviewed the case law on the subject and quoted with approval the following passage in Attorney General for New South Wales (1990) 64 Aust LJR 327: (Monnet Ispat case, SCC p. 107, para 184) "184.......To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be set the courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords law.' (Attorney General for New South Wales case.) This Court went on to hold that if denial of legitimate expectation in a given case amounts to denial of a right that is guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or in violation of principles of natural justice the same can be questioned on the well-known grounds attracting Article 14 of the Constitution but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles."
46. It would be evident from the aforesaid exposition of law that the legitimate expectation is a concept that arises out of what may be described as a reasonable expectation of being treated in a certain way by an administrative authority ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 31 even though the person who has such an expectation has no .
right in law to receive the benefit expected by him. Any such expectation can arise from an "express promise" or a "consistent course of practice or procedure" which the person claiming the benefit may reasonably expect to continue. For of legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor rt can it amount to a claim or demand on the ground of a right.
However, earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences.
47. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Therefore, a person who basis his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same, several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest.
::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 32Whether there are such facts and circumstances giving rise to .
a legitimate expectation, would primarily be a question of fact.
48. Bearing in mind the aforesaid exposition of law, we find that this plea of legitimate expectation is not available of to the petitioners for the simple reason that the principles of seniority-cum-merit and merit-cum-seniority are conceptually rt different. For the former, greater emphasis is laid on seniority, though it is not the determinative factor, while in the later, merit is the determinative factor and, therefore, the officer cannot claim promotion as a matter of right by virtue of his seniority alone.
49. Principles of merit-cum-seniority lay greater emphasis on merit and ability and seniority plays less significant role. Seniority is to be given only when merit and ability are approximately equal. Therefore, in such circumstances, there was no question of petitioners having any legitimate expectation for promotion as the ranking or position in the gradation list-seniority list in itself did not confer any right upon them to be promoted to selection post.
50. The petitioners would thereafter contend that the promotions in question were required to be made only on the evaluation of the ACRs and seniority as was subsequently clarified by the Hon'ble Supreme Court in Malik Mazhar Sultan ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 33 & anr Vs. Uttar Pradesh Public Service Commission & ors .
(2009) 17 SCC 583.
51. In support of this submission, the petitioners have placed heavy reliance upon the judgment rendered by the Hon'ble High Court of Jharkhand in W.P.(S) No.7098 of 2013 of titled as Chandrika Ram & ors Vs. The State of Jharkhand & ors, wherein after relying upon the Malik Mazhar Sultan case, it rt has been observed as under:
"54. The direction of the Hon‟ble Supreme Court in Malik Mazhar Sultan's case was in the context of number of vacancies available under the 25% limited competitive examination. While considering the promotion of Civil Judges (Senior Division) as against 65% quota, the principle laid down by the Hon‟ble Supreme Court in Malik Mazhar Sultan and Anr. v. Uttar Pradesh Public Service Commission and Others, (2009) 17 SCC 530 - the principle being seniority has to be kept in view.
55. In Malik Mazhar Sultan and Anr. v. Uttar Pradesh Public Service Commission and Others, (2009) 17 SCC 583, the Hon‟ble Supreme Court considered the case of 18 Civil Judges (Junior Division) in the cadre of Andhra Pradesh State Subordinate Judicial Service who were denied promotion to the cadre of Civil Judge (Senior Division). The main contention urged by the applicants thereon was that Civil Judges (Junior Division) who were in the zone of consideration for promotion to the cadre of Civil Judge (Senior Division) were subjected to oral interview and based on the marks secured in the interview, promotions were given and 33 candidates including the application were denied promotion.::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 34
56. In the case of Malik Mazhar Sultan and Anr. v. Uttar .
Pradesh Public Service Commission and Others, (2009) 17 SCC 583, the Hon‟ble Supreme Court has gone to say to the extent that promotion should be based only on the evaluation of the ACRs and seniority, when grievance was raised by the members of Andhra Pradesh State Subordinate Judicial Service that they were subjected to oral of interview and based on the marks secured in the interview, promotions were given whereby they were denied promotions. Their Lordships considering the earlier direction rt given in the case of Malik Mazhar Sultan, did observe as follows :-
"5. The High Court has filed a counter-affidavit/reply stating that they followed the guidelines issued by this Court in Malik Mazhar Sultan (3) v. U.P. Public Service Commission passed on 4-1- 2007. As regards the promotion to the cadre of Civil Judge (Senior Division), in the said judgment, this Court had given a direction under clause (4). It states that for the purpose of filling up vacancies in the cadre of Civil Judge (Senior Division) to be filled by promotion:
"... Viva voce criteria"
and it was further stated:
"(a) ACRs for last five years;
(b) Evaluation of judgments furnished; and
(c) Performance in the oral interview."
6. Promotion from the cadre of Civil Judge (Junior Division) to Civil Judge (Senior Division) is the first promotion stage in the Subordinate Judicial Service. All these officers must have worked for more than five years in the State Subordinate Service and in some cases they would have got promotion as Civil Judge (Senior Division) only after completion of 10 years of service as Civil Judge (Junior Division). So their performance is evaluated on the basis of their past ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 35 ACRs and also in case of necessity their judgments .
can also be perused for the purpose of evaluation.
But we do not think that these officers should be subjected to oral interview for the purpose of promotion. Normally promotions are given based on the evaluation of the ACRs and seniority. We do not think that they shall be subjected to oral interview for of the purpose of their promotion to Civil Judge (Senior Division). The direction of this Court in the said rt judgment that for the purpose of promotion, their performance based on oral interview shall also be considered as deleted. If any High Court/State Government has framed any rules pursuant to the direction of this Court, that rule also be treated as deleted."
57. In the above case, the Hon‟ble Supreme Court held that "normally promotions are given based on the evaluation of the ACRs and seniority". Though the said observation was in the context of promotion of Civil Judge (Junior Division) to Civil Judge (Senior Division), we are of the view that the ratio of the above decision that normally promotions are given based on the evaluation of the ACRs and seniority has to be kept in view."
52. We are again not impressed by the aforesaid contention, as the judgment in Malik Mazhar Sultan and another vs. U.P. Public Service Commission and Ors.
(2009) 17 SCC, 583 cannot be read out of context. The only question before the Hon'ble Supreme Court in Malik Mazhar Sultan case (supra) was as to whether members of the Andhra Pradesh State Judicial Service could be subjected to oral interview and thereafter promoted only on the basis of marks ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 36 secured in the interview. It was in this context that the Hon'ble .
Supreme Court held that promotion should be based only on the evaluation of the ACRs and seniority, but in no manner was the judgment rendered earlier in Malik Mazhar Sultan & anr Vs. U.P. Public Service Commission & ors (2008) (17) SCC of 703, whittled down or over ruled or even clarified or held that the promotions to the post of Civil Judge (Sr. Division) was not rt to be made on the basis of ACRs of last five years and upon evaluation of the judgments rendered by the Judicial Officers.
The relevant observation from the judgment reads thus:
"C. For filing up of vacancies in the cadre of Civil Judge (Senior Division to be filled by promotion "4. Viva voce 1st 16th August (deleted) Criteria
(a) ACR for last five years
(b) Evaluation of judgments furnished; and
(c) Performance in the oral interview."
(deleted)
53. The petitioners would then vehemently argue that they could not be subjected to the passing of suitability test which otherwise was not provided for by the Hon'ble Supreme Court.
54. To say the least, the petitioners appear to be labouring under a misconception that they were subjected to some sort of a test. In view of the clarification issued by the ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 37 Hon'ble Supreme Court in Malik Mazhar Sultan & anr Vs. .
Uttar Pradesh Public Service Commission & ors (2009) 17 SCC 583, the requirement/condition of oral interview was specifically deleted by the High Court vide notification dated 2.9.2009 (supra) and thereafter the selection carried out on the of basis of the two remaining criterias i.e. ACRs for the last five years and evaluation of judgments furnished.
rt
55. As a last ditch effort, petitioners would then contend that the Regulations framed by this Court suffer from vice of excessive delegation of power and are un-canalized and thereby confer an unguided discretion upon the authorities. It is further argued that once no suitability test for carrying out promotions to the post of Civil Judge (Sr. Division) was provided for by the Hon'ble Supreme Court in decision rendered in All India Judges' Association & ors Vs. Union of India & ors, (2002) 4 SCC 247. No such procedure could have been prescribed by the High Court.
56. Even these contentions are equally without merit because as observed earlier the Rules and Regulations have been framed by the High Court strictly in compliance to the directions of the Hon'ble Supreme Court in Malik Mazhar Sultan & anr Vs. U.P. Public Service Commission & ors (2008) (17) SCC 703, and Malik Mazhar Sultan & anr Vs. ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 38 Uttar Pradesh Public Service Commission & ors (2009) 17 .
SCC 583.
57. In addition to the above, we find that the petitioners in any event are not entitled to any relief under Article 226 of the Constitution for more reasons than one. They of participated in the selection process and knew well from the rules and regulations, the mode and manner in which the rt selection was to be conducted and yet participated in the selection process without any demur or protest and after taking a chance and being unsuccessful, they cannot now resile or take somersault saying that the procedure as adopted by the High Court was vitiated. This cannot be allowed. The petitioners cannot approbate and reprobate at the same time. Moreover, petitioners have not even approached this court promptly and there is a gap of almost six months in between filing of these petitions and the declaration of the result. The result was declared on the website of the High Court on 14.9.2009, whereas the petition came to be filed only on 6.4.2010. The petitioners, if really aggrieved, should have questioned the rules and regulations before participating in the selection process and are clearly estopped from filing these petitions.
58. In taking this view, it is not necessary to refer to multiple decisions on the issue and it would suffice to refer to ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 39 two recent judgments of the Hon'ble Supreme Court. In .
Pradeep Kumar Rai And Others vs. Dinesh Kumar Pandey and others (2015) 11 SCC 493, the Hon'ble Supreme Court observed as under:
of "17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not rt challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellant did not challenge it at that time. Thus, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Earlier the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted (See: Vijendra Kumar Verma vs. Public Service Commission (2011) 1 SCC 150 and K.H. Siraj vs. High Court of Kerala, (2006) 6 SC 395)".
59. Similar issue came up recently before the Hon'ble Supreme Court in Madras Institute of Development Studies and Another Vs. K. Sivasubramaniyan & ors, (2016) 1 SCC 454, wherein it was held as under:
"13. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of experts. It was only after he was not selected ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 40 for appointment, turned around and challenged the very .
selection process. Curiously enough, in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post.
14. The question as to whether a person who consciously of takes part in the process of selection can turn around and question the method of selection is no longer res integra.
15. In Dr. G. Sarana vs. University of Lucknow & Ors., rt (1976) 3 SCC 585, a similar question came for consideration before a three Judges Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Athropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held: (SCC p. 591, para 15) "15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 41 following observations made therein are worth .
quoting: (AIR p.432, para 9) '9....It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an of unfavourable report, he adopted the device of raising the present technical point.'"
16. In Madan Lal & Ors. vs. State of J&K & Ors. (1995) 3 rt SCC 486, similar view has been reiterated by the Bench which held that: (SCC p. 493, para 9) "9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla 1998 Supp SCC 258 it has been clearly laid down by a Bench of three ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 42 learned Judges of this Court that when the petitioner .
appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
of
17. In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576, this Court reiterated the principle laid down in the earlier judgments and observed: (SCC p.584, para 16) rt "16.We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
18. In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others, (2013) 11 SCC 309, recently a Bench of this Court following the earlier decisions held as under: (SCC p. 320, para 24) "24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the ::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 43 learned Single Judge and the Division Bench of the .
High Court committed grave error by entertaining the grievance made by the respondents."
60. Apart from the above, we also find that petitioners themselves have subsequently availed of the benefit of these of Regulations and have been promoted as Civil Judges (Sr. Division) and are, therefore, clearly estopped from filing rt these petitions and raising such pleas questioning the criteria.
In this context, it shall be fruitful to refer to the following observations of the Hon'ble Supreme Court in N. Lokanadham Vs. Chairman, Telecom Commission & ors, (2008) 5 SCC 155:
"18. We may furthermore notice that the appellant herein without any demur whatsoever appeared in the subsequent examination. He even did not qualify therein. The principle of estoppel would, therefore, apply in this case. Tribunal had, thus, exceeded to its jurisdiction in passing its order dated 23.4.2004."
61. The upshot of the aforesaid discussion is that though the petitioners were well aware of the selection criteria and yet participated in the selection process without any demur or protest. Having done so, it is not now open for them to turn round and question the procedure of selection as adopted by the official respondents.
::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 4462. The regulations providing for conducting merit cum .
suitability test of judicial officers is nothing but compliance of the directions of the Hon'ble Supreme Court in Malik Mazhar Sultan and another Vs. U.P. Public Service Commission & ors, 2008 (17) SCC 703.
of
63. The criteria for selection as adopted by the High rt Court by setting up two separate committees to evaluate the ACRs and judgments, is strictly in conformity and in compliance to the aforesaid judgment of the Hon'ble Supreme Court.
64. The selection to the post in question has been made on the basis of the assessment made by the two committees constituted under the rules and regulations and in absence of any allegations of malafides and biasness against the committees or any one of its member, these writ petitions are not maintainable.
65. There is nothing illegal or arbitrary in the rules and regulations framed by the High Court and these otherwise are not open to challenge as admittedly, it is on the basis of these rules and regulations that the petitioners have subsequently been promoted as Civil Judges (Sr. Division).
::: Downloaded on - 15/04/2017 21:10:50 :::HCHP 4566. Having said so, we find no merit in these petitions .
and the same are dismissed, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan), Judge.
of
( P.S. Rana),
rt Judge.
September 7,2016
(sl/GR)
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