Jharkhand High Court
Dharmendra Kumar Singh vs The Hon'Ble High Court Of Jharkhand on 29 June, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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W.P.(S) No.3771 of 2019
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1.Dharmendra Kumar Singh, aged about 53 years, son of late Lal Saheb
Singh, resident of C.J.M. Quarter, Ramgarh, P.O.& P.S. Ramgarh, District-
Ramgarh
2.Sanjeev Kumar Verma, aged about 51 years, son of Ram Kumar Verma,
resident of ACJM Quarter, Chatra, P.O.& P.S.Chatra, District -Chatra
3.Kusum Kumari, aged about 53 years, daughter of Jang Bahadur Singh,
resident of Quarter of Civil Judge, Sr. Division-cum-Judicial Magistrate,
Gumla, P.O. & P.S. Gumla, District-Gumla ...... .... Petitioners
--Versus--
1.The Hon'ble High Court of Jharkhand, through, its Registrar General,
Doranda, P.O. & P.S. Doranda, District-Ranchi
2.The State of Jharkhand, through the Chief Secretary, Govt. of Jharkhand
having office at Project Building, P.O. & P.S. Dhurwa, District-Ranchi
3.The Principal Secretary, Department of Personnel, Administrative
Reforms and Rajbhasha, Govt. of Jharkhand having office at Project
Building, P.O. & P.S.Dhurwa, District-Ranchi
4.The Principal Secretary, Department of Law and Justice having office at
Project Building, P.O. & P.S.Dhurwa, District-Ranchi
5.Sri Manish, son of not known to the petitioners, Addl. Judicial
Commissioner, Ranchi, P.O. G.P.O., P.S. Kotwali, District - Ranchi
6.Sri Yogesh Kumar, son of not know to the petitioners, District & Addl.
Sessions Judge, Hazaribagh, P.O. & P.S. Hazaribagh, District -Hazaribagh
7.Sri Prakash Jha, son of not known to the petitioners, Addl. Judicial
Commissioner, Ranchi, P.O. G.P.O., P.S. Kotwali, District-Ranchi
8.Sri Shwaymbhu, son of not known to the petitioners, Addl. Judicial
Commissioner, Ranchi, P.O. G.P.O., P.S. Kotwali, District -Ranchi
9.Sri Ajay Kumar Singh, son of not known to the petitioners, District &
Addl. Sessions Judge, Dhanbad, P.O. & P.S. Dhanbad, District Dhanbad
10.Sri Rajeev Ranjan, son of not known to the petitioners, District & Addl.
Sessions Judge, Bokaro, P.O. & P.S. Bokaro, District-Bokaro
11.Sri Rajesh Sinha, son of not known to the petitioners, District & Addl.
Sessions Judge, Bermo at Tenughat (Bokaro), P.O. & P.S. Bermo, District-
Bokaro.
12.Sri Debashish Mahapatra, son of not known to the petitioners, District &
Addl. Sessions Judge, Dumka, P.O. & P.S. Dumka, District-Dumka
13.Sri Vishal Shrivastava, son of not known to the petitioners, Additional
Judicial Commissioner, Ranchi, P.O. G.P.O., P.S. Kotwali, District-Ranchi
14.Sri Tarun Kumar, son of not known to the petitioners, District & Addl.
Sessions Judge, Koderma, P.O. & P.S. Koderma, District-Koderma
15.Sri Gati Krishna Tiwary, son of not known to the petitioners, District &
Addl. Sessions Judge, Hazaribagh, P.O. & P.S. Hazaribagh, District
Hazaribagh
16.Smt. Garima Mishra, son of not known to the petitioners, District &
Addl. Sessions Judge, Deoghar, P.O. & P.S. Deoghar, District-Deoghar
17.Sri Onkar Nath Choudhary, son of not known to the petitioners, District
& Addl. Sessions Judge, Jamshedpur, P.O. & P.S. Jamshedpur, (Town
Jamshedpur), District East Singhbhum
2
18.Sri Raj Kumar Mishra, son of not known to the petitioners, District &
Addl. Sessions Judge, Dhanbad, P.O. & P.S. Dhanbad, District Dhanbad
19.Sri Dinesh Kumar, son of not known to the petitioners, Addl. Judicial
Commissioner, Ranchi, P.O. G.P.O., P.S.Kotwali, District -Ranchi
20.Sri Dinesh Kumar Mishra, son of not known to the petitioners, District &
Addl. Sessions Judge, Hazaribagh, P.O. & P.S. Hazaribagh, District
Hazaribagh
21.Sri Madhuresh Kumar Verma, son of not known to the petitioners,
District & Addl. Sessions Judge, Simdega, P.O. & P.S. Simdega, District-
Simdega
22.Sri Prabhat Kumar Sharma, son of not known to the petitioners, District
& Addl. Sessions Judge, Sahebganj, P.O. & P.S. Sahebganj, District-
Sahebganj
23.Sri Ravi Shankar Mishra, son of not known to the petitioners, District &
Addl. Sessions Judge, Chaibasa, P.O. & P.S. Chaibasa, District -Chaibasa
24.Sri Anil Kumar No.II, son of not known to the petitioners, District &
Addl. Sessions Judge, Giridih, P.O. & P.S. Giridih, District -Giridih
25.Sri Niraj Kumar Vishwakarma, son of not known to the petitioners,
District & Addl. Sessions Judge, Saraikela, P.O. & P.S. Saraikela, District -
Saraikela
26.Sri Yogesh Kumar Singh, son of not known to the petitioners, District &
Addl. Sessions Judge, Bokaro, P.O. & P.S. Bokaro, District Bokaro
27.Sri Mukulesh Chandra Narain, son of not known to the petitioners,
District & Addl. Sessions Judge, Ghatshila (Jamshedpur), P.O. & P.S.
Ghatshila, District-East Singhbhum
28.Sri Rajendra Kumar Sinha, son of not known to the petitioners, District
& Addl. Sessions Judge, Jamshedpur, P.O. & P.S. Jamshedpur (Town
Jamshedpur) District-East Singhbhum
29.Sri Yogesh Chandra Verma, son of not known to the petitioners, District
& Addl. Sessions Judge, Godda, P.O. & P.S. Godda, District-Godda
30.Sri Vinod Kumar Tiwari, son of not known to the petitioners, District &
Addl. Sessions Judge, Godda, P.O. & P.S. Godda, District-Godda
31.Sri Ajai Kumar Srivastava, son of not known to the petitioners, District
& Addl. Sessions Judge, Giridih, P.O. & P.S. Giridih, District Giridih
32.Sri Kumar Pawan, son of not known to the petitioners, District & Addl.
Sessions Judge, Jamshedpur, P.O. & P.S. Jamshedpur, (Town Jamshedpur),
District-East Singhbhum
33.Sri Manoj Kumar Tripathi, son of not known to the petitioners, District
& Addl. Sessions Judge, Latehar, P.O. & P.S. Latehar, District-Latehar
34.Sri Asif Equbal, son of not known to the petitioners, District & Addl.
Sessions Judge, Daltonganj, P.O. & P.S. Daltonganj, District- Palamau
35.Sri Bipin Bihari Gautam, son of not known to the petitioners, District &
Addl. Sessions Judge, Jamtara, P.O. & P.S. Jamtara, District-Jamtara
36.Smt. Kashika M.Prasad, daughter of /wife of not known to the
petitioners, Addl. Judicial Commissioner, Ranchi, P.O. G.P.O., P.S. Kotwali,
District Ranchi
37.Sri Soumendra Nath Sikdar, son of not known to the petitioners, District
& Addl. Sessions Judge, Jamshedpur, P.O. & P.S. Jamshedpur (Town
Jamshedpur), District -East Singhbhum
38.Smt. Kalpana Hazarika, son of not known to the petitioners, District &
Addl. Sessions Judge, Deoghar, P.O. & P.S. Deoghar, District-Deoghar
39.Sri Sachindra Birua, son of not known to the petitioners, District & Addl.
Sessions Judge, Deoghar, P.O. & P.S. Deoghar, District -Deoghar
40.Sri Abhimanyu Kumar, son of not known to the petitioners, District &
3
Addl. Sessions Judge, Pakur, P.O. & P.S. Pakur, District- Pakur
41.Sri Sanjeev Jha, son of not known to the petitioners, District & Addl.
Sessions Judge, Deoghar, P.O. & P.S. Deoghar, District -Deoghar
42.Sri Rajesh Kumar Singh, son of not known to the petitioners, District &
Addl. Sessions Judge, Dhanbad, P.O. & P.S. Dhanbad, District-Dhanbad
43.Sri Abhash Verma, son of not known to the petitioners, Joint Registrar
(Establishment) Jharkhand High Court, P.O. & P.S. Doranda, District-
Ranchi
44.Sri Akhilesh Kumar Tiwari, son of not known to the petitioners, District
& Addl. Sessions Judge, Dhanbad, P.O. & P.S. Dhanbad, District-Dhanbad
45.Sri Piyush Srivastava, son of not known to the petitioners, District &
Addl. Sessions Judge, Giridih, P.O. & P.S. Giridih, District-Giridih
46.Sri Satyakam Priyadarshi, son of not known to the petitioners, District &
Addl. Sessions Judge, Khunti, P.O. & P.S. Khunti, District-Khunti
47.Sri Avinash Kumar Dubey, son of not known to the petitioners, District
& Addl. Sessions Judge, Dhanbad , P.O. & P.S. Dhanbad, District-Dhanbad
48.Sri Sachindra Nath Sinha, son of not known to the petitioners, Under
Secretary, Law Department, Ranchi, Project Building, P.O. & P.S. Dhurwa,
District -Ranchi
49.Sri Arvind Kumar No.2, son of not known to the petitioners, District &
Addl. Sessions Judge, Lohardaga, P.O. & P.S. Lohardaga, District-
Lohardaga
50.Sri Kankan Pattadar, son of not known to the petitioners, District &
Addl. Sessions Judge, Lohardaga, P.O. & P.S. Lohardaga, District -
Lohardaga
51.Sri Chaudhary Ahsan Moiz, son of not known to the petitioners, District
& Addl. Sessions Judge, Lohardaga, P.O. & P.S. Lohardaga, District-
Lohardaga
52.Sri Koushik Mishra, son of not known to the petitioners, District & Addl.
Sessions Judge, Chatra, P.O. & P.S. Chatra, District -Chatra
53.Sri Braj Kishore Pandey, son of not known to the petitioners, Addl.
Judicial Commissioner, Ranchi, P.O. G.P.O., P.S. Kotwali, District Ranchi
54.Sri Prem Shankar, son of not known to the petitioners, District & Addl.
Sessions Judge, Chatra, P.O. & P.S. Chatra, District -Chatra
55.Sri Vijay Kumar Srivastava, son of not known to the petitioners, Addl.
Judicial Commissioner, Ranchi, P.O. G.P.O., P.S. Kotwali, District -Ranchi
..... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Rajendra Krishna, Advocate
Mr. Jay Shankar Tiwary, Advocate
For J.H.C., Resp.No.1 : Mr. Sudarshan Shrivastava, Advocate
For the State : Mr. Ashok Kumar, A.A.G.-IV
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C.A.V. On 02.12.2021 Pronounced on : 29.06.2022
Per Sanjay Kumar Dwivedi, J.
Heard Mr. Rajendra Krishna, the learned counsel appearing on behalf of the petitioners, Mr. Sudarshan Shrivastava, the learned counsel 4 appearing on behalf of respondent No.1 [High Court of Jharkhand] and Mr. Ashok Kumar, the learned A.A.G.-IV appearing on behalf of the respondent-State.
2. This petition has been filed for quashing the entire Notification contained in Memo No.4253 dated 30.05.2019 by which the private- respondent nos.5 to 55 have been appointed on promotion in Jharkhand Superior Judicial Service on the post of District Judge. The further prayer is made for direction upon the respondents to provide all consequential benefits after granting promotion to the petitioners on the post of District Judge in Jharkhand Superior Judicial Services with effect from 30.05.2019.
FACTS OF THE CASE:
3. The petitioner no.1 was appointed as Munsif [Civil Judge (Junior Division)] and he was promoted on 23.07.2014 in the cadre of Civil Judge (Senior Division) and joined thereon on 16.08.2014. The petitioner nos.2 and 3 were also appointed as Civil Judge (Junior Division) and they were promoted in the cadre of Civil Judge (Senior Division) on 20.04.2016 and joined thereon on 23.04.2016 and 09.05.2016, respectively.
4. In the Combined Seniority List of Judicial Officers in the State of Jharkhand the name of petitioner no.1 was reflected at Sl.No.141, the name of petitioner No.2 was reflected at Sl.No.195 and the name of petitioner No.3 was reflected at Sl.No.204, respectively in the said Seniority List. In the year 2018, the Jharkhand High Court came out with the notification contained in Memo No.2371 dated 19.05.2018 for appointment in Jharkhand Superior Judicial Services. Vide Notification dated 01.03.2019 under the signature of Registrar General, the High Court of Jharkhand, it has been informed to all concerned that an Interview for promotion to the post of District Judge in the Jharkhand Superior Judicial Services under Rule 5 4(b) of Jharkhand Superior Judicial Services Rules, 2001 is scheduled to be held on 09.03.2019, 10.03.2019 and 15.03.2019, respectively in the premises of Jharkhand High Court. The names of the candidates who were required to appear in the Interview was reflected in the Notification No.881 dated 01.03.2019. The name of petitioner no.1 figures at Sl.No.3, the petitioner no.2 at Sl.No.39 and the petitioner no.3 at Sl.No.48, respectively. Petitioner no.1 appeared in the Interview for his promotion to the post of District Judge on 09.03.2019 and petitioner nos.2 and 3 appeared in the Interview on 10.03.2019. By Notification vide Memo. No.1629/ Apptt. Dated 01.05.2019 issued under the signature of Registrar General, Jharkhand High Court, list of 51 successful candidates were published who have been recommended for their appointment on promotion as District Judge and for the inclusion in the cadre of Superior Judicial Services in terms of Rule 4(b) of Jharkhand Superior Judicial Services (Recruitment, Appointment and Condition of Services) Rule, 2001 which has been sent to the Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Ranchi. The Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand had issued Notification vide Memo No.4253 dated 30.05.2019 whereby respondent Nos.5 to 55 have been appointed by way of promotion to the post of District Judge, Cadre in the Jharkhand Superior Judicial Services. The petitioners' names were not figured in the recommended list. Aggrieved with this, the petitioners have filed this petition.
ARGUMENT ON BEHALF OF THE PETITIONERS
5. Mr. Rajendra Krishna, the learned counsel appearing on behalf of the petitioners submitted that the selected recommended candidates are junior to the petitioner no.1 which is evident from the Notification No.881 6 dated 01.03.2019. He further submitted that the petitioner no.2 is senior to all the recommended candidates from Sl.No.26 onwards and the petitioner no.3 is senior to all the recommended candidates from Sl.No.33 onwards. He further submitted that the petitioners are senior to most of the candidates whose names are there in the said Notification dated 30.05.2019. He further elaborated his argument by way of submitting that the petitioners are more suitable as they have excellent service record in their entire service period and they are senior to the other candidates. By way of referring to Rule 4(b) of Jharkhand Superior Judicial Services (Recruitment, Appointment and Condition of Services) Rule, 2001, he submitted that the cut-off marks for determining suitability of a candidate for promotion was 40 and in previous three times, the promotion was provided to such candidates according to their seniority who have got 40 marks in aggregate after adding the marks given on different heads as prescribed in the amendment made in the year 2014. He submitted that the rule was not followed and the precedent for the last three times upon which the promotion has been granted was also not taken into consideration. He further submitted that a different procedure altogether has been adopted and even if the petitioner nos.1, 2 and 3 they are more suitable by granting marks more than 40% which is as per Rules, makes them suitable for promotion and by way of seniority they are entitled for promotion prior to other candidates who were junior to them. He submitted that this procedure has totally been ignored. He further submitted that the amendment made in Jharkhand Superior Judicial Services (Recruitment, Appointment and Condition of Services) Rule, 2001, issued by the Department of Personnel, Administrative Reforms and Rajbhasha on 21.04.2014 and in light of this, he submitted in view of amended rules also the petitioners are eligible for promotion. He further submitted that the 7 entire action is violative of Articles 14 and 16 of the Constitution of India. On these premises, he relied in the case of "State of Kerala & Another v. N.M. Thomas & Others" reported in (1976) 2 SCC 310 and referred to paragraph nos.21 and 24 of the said judgment, which are quoted hereinbelow:
"21. Articles 14, 15 and 16 form part of a string of constitutional guaranteed rights. These rights supplement each other. Article 16 which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus to the objects to be achieved. Under Article 16 there can be a reasonable classification of the employees in matters relating to employment or appointment.
24. Discrimination is the essence of classification. Equality is violated if it rests on unreasonable basis. The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved."
6. Relying on this, he submitted that there is violation of equality. He further relied in the case of "Sarat Kumar Dash & Others v. Biswajit Patnaik & Others" reported in 1995 Supp.(1) SCC 434 and referred to paragraph no.8 of the said judgment, which is quoted hereinbelow:
"8. In case of merit-cum-suitability, the seniority should have no role to play when the candidates were found to be meritorious and suitable for higher posts. Even a juniormost man may steal a march over his seniors and jump the queue for accelerated promotion. This principle inculcates dedicated service, and accelerates ability and encourages merit to improve excellence. The seniority would have its due place only where the merit and ability are approximately equal or where it is not possible to assess inter se merit and the suitability of two equally eligible competing candidates who come very close in the order of merit and ability. Under those circumstances, the seniority will play its due role and calls it in aid for 8 consideration. But in case where the relative merit and suitability or ability have been considered and evaluated, and found to be superior, then the seniority has no role to play. In our view the PSC has evolved correct procedure in grading the officers and the marks have been awarded according to the grading. It is seen that the four officers have come in the grading of 'B'. In consequence, the PSC had adopted the seniority of the appellants and Panda in the lower cadre in recommending their cases for appointment in the order of merit."
7. By way of relying on this judgment, he submitted that on merit- cum-suitability criterion, the petitioners are eligible. He further relied in the case of "Chandrika Ram & Others v. The State of Jharkhand & Others"
reported in 2014 1 JLJR 685. By way of relying on this judgment, he submitted that interview is the best mode of assessing suitability of a candidate for a particular position and participation in the selection process will not operate as estoppel from challenging selection process. He referred to paragraph nos.59 and 61 of the said judgment, which are quoted hereinbelow:
"59. In our considered view, for promotion of Civil Judge (Senior Division) as District and Additional Sessions Judge as against 65% quota on the basis of merit-cum- seniority, allocation of 50% of the total marks for the interview is excessive and it has caused serious prejudice to the Officers who have put in long years of service and on this ground also, the selection of the Respondent Nos. 4 to 26 has to be set aside.
61. In the facts and circumstances of the present case, participation of the petitioner in the selection process will not operate as estoppel from challenging from the selection process. As discussed earlier, fixation of minimum qualifying 40% marks is not provided by the Rules and hence, was impermissible. After the vacancies were notified on 22.3.2012, the appointment Committee in the meeting held on 12.4.2012, had resolved that the procedure adopted in the earlier selection Process would be followed, which, inter alia, included fixation of minimum qualifying marks. The petitioners were not informed about the fixation of minimum qualifying 40% marks of the aggregate. According to the petitioners, they came to know of the aforesaid fact from the reply affidavit filed by the 3rd respondent in Hon'ble Supreme Court in I.A No.123/2013 in Civil Appeal No.1867 of 2006.9
As rightly contended by the learned Senior Counsel for the petitioners, in the absence of any statutory requirement of securing minimum qualifying marks coupled with the fact of such criteria was stipulated after the vacancies were notified, that too without information to the candidates, the question of acquiescence does not arise."
8. Relying on this judgment he submitted that in light of this judgment, the petitioners are entitled for promotion to the post of District Judge. On these grounds, he submitted that the entire selection list is fit to be quashed by this Court. Mr. Rajendra Krishna, the learned counsel for the petitioners by way of referring Rule 5, submitted that they were called for the Interview meaning thereby the petitioners were fit to be promoted. He further submitted that once inter se seniority to the Cadre of Superior Judicial Services of such suitable candidates shall be determined in terms of Rule 8(b) of this Rule, he submitted that in view of Rule 8(b) the inter se seniority of Superior Judicial Services was required to be made and petitioners being the seniors fit to be included after promotion.
ARGUMENT ON BEHALF OF RESPONDENT NO.1
9. Per contra, Mr. Sudarshan Shrivastava, the learned counsel appearing on behalf of the respondent no.1 [High Court of Jharkhand] submitted that the said notification is valid, legal and in accordance with Jharkhand Superior Judicial Services (Recruitment, Appointment and Condition of Services) Rule, 2001. The writ-petitioners were not found suitable for promotion. He submitted that in merit-cum-seniority promotion the petitioners have failed to fulfill the merit criteria. They had a right to be considered for promotion which has been taken care of. The petitioners had been appointed as Probationary Munsif in Jharkhand Judicial Service vide Notification dated 21.05.2002 issued by the Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand. The petitioners had joined as Probationary Munsif on 31.05.2002, 01.06.2002 10 and 06.06.2002, respectively in the Jharkhand Judicial Service as shown in the list dated 23.05.2002. The petitioners namely, Dharmendra Kumar Singh and Kusum Kumari were confirmed to the post of Munsif with effect from 01.01.2005 and 26.06.2004, respectively vide Notification dated 06.01.2007, whereas petitioner no.2, namely, Sanjeev Kumar Verma was confirmed to the post of Munsif with effect from 23.09.2006 vide Notification dated 24.01.2008. Petitioner no.1, namely, Dharmendra Kumar Singh was promoted to the rank of Civil Judge (Senior Division) in order of seniority vide letter dated 23.07.2014. The petitioners namely, Sanjeev Kumar Verma and Kusum Kumari were promoted to the rank of Civil Judge (Senior Division) by Notification dated 20.04.2016. These were in order of their seniority subject to final decision of the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No.9883 of 2009. The interview was held on 09.03.2019, 10.03.2019 and 15.03.2019. He further submitted that Rules 4, 5 and 8 of Jharkhand Superior Judicial Services (Recruitment, Appointment and Condition of Services) Rules, 2001 in Chapter-I are with regard to promotion of Officers of the rank of Civil Judge (Senior Division) to the rank of Jharkhand Superior Judicial Service. He further submitted that Rule 4 of the 2001, Rules was amended on 14.03.2008, again it was amended in 2011, substituted by new Sub rule (b) and (c), again amended by Notification dated 14.12.2011 Rule-5 amended by Notification dated 20.08.2004 and by Notification bearing no.13/Variya Niyam 01/2014-3679 dated 21.04.2014 the further amendment took place. He submitted that in view of 2014 Rules the promotions have been granted which was applicable at the time of promotion. He further submitted that in view of amendment in the Rule 5 of 2014 Notification a candidate's suitability to be assessed on the basis of amended provisions of law which provides to consider the 11 promotion of Judicial Officers in Civil Judge (Senior Division) strictly on the basis of merit-cum-seniority. He submitted that the committee has considered for suitability of one or other candidates on the basis of amended provisions as contained in Notification of year 2014 and thereafter following the provisions of law as under Rule 4(b) of Jharkhand Superior Judicial Services (Recruitment, Appointment and Condition of Services) Rules, 2001 a list has been prepared merit-wise. According to seniority of the candidates they have been put under consideration zone. By way of referring to paragraph no.19 of the counter affidavit, he submitted that the petitioner no.1 namely, Dharmendra Kumar Singh got 50 marks, petitioner no.2 namely, Sanjeev Kumar Verma got 50 marks and petitioner no.3 namely, Kusum Kumari got 43 marks in the suitability test. These marks were awarded by specially constituted Selection/Appointment Committee vide minutes dated 29.03.2019 which was finally approved by Hon'ble Standing Committee vide minutes dated 22.04.2019. Lastly, he submitted that 51 marks was obtained by the last selected candidate. He submitted that the last selected candidate got 51 marks, whereas these petitioners have got lesser marks than the last selected candidate and that is why they have not been recommended for promotion. He further submitted that where after considering and evaluating the merit and suitability was found to be superior, seniority has got no role to play. He further submitted that it is well settled that when the rule is provided that selection post shall be filled up on merit-cum-seniority and in view of that rule a candidate cannot be allowed to challenge the select list on the ground that juniors were placed above him without following seniority-cum-fitness criteria. On these grounds, he submitted that there is no merit in the petition which is fit to be dismissed.
10. The learned counsel appearing on behalf of the respondent 12 nos.2 and 3 submitted that the notification with regard to promotion was issued by answering respondent in pursuant to recommendation made by the Jharkhand High Court. He submitted that the said recommendation was made in terms of power conferred under Article 233 (1) of the Constitution of India. He submitted that the respondent nos.2 and 3 have only acted upon the recommendation and issued the notification for promotion.
FINDINGS OF THE COURT
11. It is admitted that the petitioners and the persons recommended for promotion to the post of District Judge who are in the combined seniority list are in the same cadre. The only question required to be answered by the Court is as to whether the said recommendation was in terms of effective rules or not. The exercise of power conferred by Article 233 read with 309 of the Constitution of India, clause (iv) of Rule 5 was substituted as under:
"Clause (iv) of Rule 5 of Jharkhand Superior Judicial Services (Recruitment, Appointment and Condition of Services) Rules, 2001 is substituted by following clause (iv):
"(iv) The suitability test as provided in clause
(i) shall comprise of :
(a) Interview of 20 marks
(b) 60 marks shall be earmarked on the basis of Service Profile depending on the remarks earned by the officer in his A.C.R during last 10 (ten) years of service, which may include the service as Civil Judge (Junior Division), The marking pattern shall as follows for this section -
Outstanding - 6 marks Very Good - 5 marks Good - 4 marks Satisfactory - 3 marks Average - 2 marks Poor - 1 mark
(c) Evaluation of judgment-10 marks
(d) Maximum of 10 marks shall be earmarked on the basis of 1 mark against each year of completion of service as Civil Judge (Senior Division) by 13 the officer.
The candidate obtaining minimum 40 marks in aggregate shall be treated suitable for appointment on promotion. However, the inter-se seniority in the cadre of Superior Judicial Service of such suitable candidates/officers shall be determined in terms of Rule 8(b) of these Rules."
12. Rule 4 of Jharkhand Superior Judicial Services (Recruitment, Appointment and Condition of Services) Rules, 2001 was originally as under:
"4. Appointment to the service.--Appointment to the service, which shall in the first instance ordinarily be to the post of Additional District Judge, shall be made by the Governor, in consultation with High Court :--
(a) by direct recruitment of persons as recommended by the High Court for such appointment under clause (2) of Article 233 of the Constitution of India; and
(b) by promotion on merit-cum-seniority basis from amongst the officers belonging to the Jharkhand Judicial Service :
Provided that where the merit of the officers is equal in all respects, seniority shall prevail and be given weightage."
13. The said rule was substituted by Sub-rule (b) and (c) by amendment dated 14.03.2008 in the following manner:
"Amendment of Rule 4: Sub rule (b) of Rule 4 is substituted by new Sub rule (b) and thereafter Sub-rule (c) is added in the following manner:-
Sub rule(b)- 50% by promotion from amongst the Sub Judges on the basis of merit cum seniority and passing a suitability test.
Sub rule (c)- 25% by promotion on the basis of limited competitive examination of Sub Judges having not less than 5 years service in the same cadre."
14. Rule 4 of 2001 was again amended on 14.12.2011 as follows:
"Rule -4 - Appointment to the service:-
Appointment to the service, which shall in the first instance ordinarily be to the post of Additional District Judge shall be made by the Governor, in consultation with High Court.
(a) By direct recruitment of persons as recommended by the High Court for such appointment under clause(2) of Article 233 of the Constitution of India
(b) By promotion from amongst the Sub Judges (Civil 14 Judge, Senior Division) on the basis of merit-cum- seniority and passing a suitability test and
(c) By promotion on the basis of Limited Competitive Examination of Sub Judges (Civil Judge, Senior Division) having not less than 5 years service in the same cadre."
15. Rule 5 of Jharkhand Superior Judicial Services (Recruitment, Appointment and Condition of Services) Rules, 2001, as under:
"Rule 5. Of the total posts in the cadre of the service 67% shall be filled in by promotion and 33% by direct recruitment:
Provided that the State Government may, in consultation with the High Court, from time to time deviate from the aforesaid percentage in either direction"
16. Rule 5 was amended on 14.03.2008 further, as under:
"Clause (iv) and (v) are added after clause (iii) of Rule 5 (as amended by Notification No.4544 dated 20.08.2004) in the following manner:-
Clause (iv)- The suitability test as provided in clause(i) above shall consist of interview comprising 50 marks and suitability on the basis of service profile of last 10 years comprising 50 marks"
Provided that in determining the enter-se merit, the service rendered in the cadre shall be taken in to consideration and one mark shall be allotted for each year of service in the same cadre. However, the inter-se seniority of such suitable candidates shall be determined in terms of Rule 8 (b) of this Rule;
Clause (v)- The limited competitive examination as provided in Clause (ii) above, shall consists of written test and viva voce test. The written test shall be subjective in nature comprising four parts, i.e. questions based on
(i) civil, (ii) criminal, (iii) other Law including local Laws and (iv) English language. The paper shall be of 100 marks and each part shall carry 25 marks. It shall be compulsory for the candidates to attempt all the four parts. However, a candidate shall be required to obtain at least 30% marks in each part comprising 25 marks. The candidates obtaining minimum 40% marks in written test shall only be called for viva voce test. The viva voce test shall carry 25 marks and a candidate obtaining minimum six marks in viva voce test shall only be considered suitable for selection. The merit list of candidates shall be prepared on the cumulative marks obtained by the candidates in written and viva voce test. The candidates obtaining minimum 40% marks alone shall qualify for appointment. The appointment to the post shall be made 15 on the basis of inter-se merit of successful candidates against vacancies available in the cadre as provided in clause (ii) above. The inter-se seniority of such successful candidates after appointment will be determined in terms of Rule 8(b) of this Rule."
17. By Notification dated 14.12.2011, Rule 5 was again amended as under:
"Rule -5 of the total post in the cadre of service:-
(i) 65% shall be filled in by promotion from amongst the Sub Judges (Civil Judge, Senior Division) on the basis of merit-
cum-seniority and passing a suitability test as may from time to time be prescribed by the High Court.
(ii) 10% shall be filled in by promotion (by way of selection) strictly on the basis of merit through a limited competitive examination of Sub Judges (Civil Judge, Senior Division) having not less than 5 years service and also having due regard to his service records in the past.
Provided, if candidates are not available for 10% quota, or are not able to qualify in the examination, then vacant posts shall be filled up by regular promotion.
(iii) 25% shall be filled in by direct recruitment from the Bar on the basis of written test and viva voce conducted by the High Court"
(iv)
18. Further, vide Notification bearing No.13/Variya Niyam.- 01/2014-3679 dated 21.04.2014 issued by the Joint Secretary to the Government, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand has amended the Rule-5 (iv) as under:
"(iv) The suitability test as provided in clause (i) shall comprise of:-
(a) Interview of 20 marks
(b) 60 marks shall be earmarked on the basis of Service Profile depending on the remarks earned by the officer in his A.C.R. during last 10(ten) years of service, which may include the service as Civil Judge (Junior Division), The marking pattern shall be as follows for this section-
Outstanding - 6 marks
Very Good - 5 marks
Good - 4 marks
Satisfactory - 3 marks
Average - 2 marks
Poor - 1 mark
(c) Evaluation of Judgment - 10 marks
(d) Maximum of 10 marks shall be earmarked on the basis of 1 mark against each year of completion of service as Civil Judge (Senior Division) by the officer The candidate obtaining minimum 40 marks in aggregate 16 shall be treated suitable for appointment on promotion. However, the inter-se seniority in the cadre of Superior Judicial Service of such suitable candidates/officers shall be determined in terms of Rule 8(b) of these Rules."
19. The process for giving promotion and appointment on the post of District Judge in the Jharkhand Superior Judicial Services started in the 2018 and in that view of the matter, the petitioners and the recommended candidates, promotion was required to be taken place in light of amendment in the Rule of 2014. In view of the amendment of clause(iv) of Rule 5 the suitability test as provided under Clause (1) was to be comprised of, Interview-20 marks, 60 marks shall be earmarked on the basis of Service Profile depending on the remarks earned by the Officer in his A.C.R during last 10 (ten) years of service, which may include the Service as Civil Judge (Junior Division). The marking pattern is also made; Outstanding-6 marks, Very Good-5 marks, Good-4 marks, Satisfactory-3 marks, Average-2 marks, Poor-1 mark and evaluation of Judgment was provided 10 marks. A maximum of 10 marks shall be earmarked on the basis of 1 mark against each year of completion of service a Civil Judge (Senior Division) by the Officer and it was provided that the candidate obtaining minimum 40 marks in aggregate shall be treated suitable for appointment on promotion. However, the inter se seniority in the Cadre of Superior Judicial Service of such suitable candidate/Officer shall be determined in terms of Rule 8(b) of these rules. The inter se seniority is required to be determined in terms of Rule 8(b) once a person got promotion in terms of the rules, and the persons got promotion their inter se seniority shall be determined in terms of Rule 8(b), not of the persons who have not been selected for promotion. Thus, it is crystal clear that the persons at least having the minimum 40 % marks in aggregate were required to be called for interview. If a candidate was not having the minimum 40% marks in aggregate was not required to be called. 17 Since the petitioners including the recommended candidates have got minimum 40% marks that is why they all have been called for the Interview. The suitability test has been disclosed in Sub-rule(iv) of Rule-5 which has been discussed above and in the light of this suitability test, the Interview was conducted and the petitioner no.1 got 50 marks, petitioner no.2 got 50 marks and the petitioner no.3 got 43 marks whereas the last selected candidate got 51 marks. Thus, in the light of the Rules, there is no illegality as the criteria was the suitability test in which these petitioners have got lesser marks. In the case of "Sarat Kumar Dash & Others v. Biswajit Patnaik & Others"(supra), merit-cum-suitability and role of seniority was considered. The paragraph nos.8, 9 and 10 of the said judgment are quoted herein below:
"8. In case of merit-cum-suitability, the seniority should have no role to play when the candidates were found to be meritorious and suitable for higher posts. Even a juniormost man may steal a march over his seniors and jump the queue for accelerated promotion. This principle inculcates dedicated service, and accelerates ability and encourages merit to improve excellence. The seniority would have its due place only where the merit and ability are approximately equal or where it is not possible to assess inter se merit and the suitability of two equally eligible competing candidates who come very close in the order of merit and ability. Under those circumstances, the seniority will play its due role and calls it in aid for consideration. But in case where the relative merit and suitability or ability have been considered and evaluated, and found to be superior, then the seniority has no role to play. In our view the PSC has evolved correct procedure in grading the officers and the marks have been awarded according to the grading. It is seen that the four officers have come in the grading of 'B'. In consequence, the PSC had adopted the seniority of the appellants and Panda in the lower cadre in recommending their cases for appointment in the order of merit.
9. Mr Mehta, the learned counsel for the respondent- J.P. Mishra contended that the PSC itself has evolved grading of outstanding, very good, good, satisfactory, average etc. from C Rs which is not open to the PSC to evolve grading. We cannot accept that contention to be correct. Firstly, this contention was not raised in the 18 Tribunal and secondly, from the file produced before us by the PSC, it is clear that they have seen the grading was given by the Government and they evolved the criteria of giving marks on the basis of the grading given by the Government. With regard to the merit and ability this Court has consistently been following the view as extracted herein from Capoor case in other decisions vide R.S. Dass v. Union of India, National Institute of Mental Health & Neuro Sciences v. Dr K. Kalyana Raman and Syed Khalid Rizvi v. Union of India.
10. Accordingly, we hold that the principle of "merit- cum-suitability with due regard to seniority" has been correctly applied on the facts in this case. We have also seen that the PSC has objectively evolved the criteria and determined the merit and suitability of the candidates. In R.S. Dass case the amended Rule 5(2) of the IAS (Appointment by Promotion) Regulations, 1955, Rule 5(4) evolved the principle to classify eligible officers as, outstanding, very good, good or unfit, as the case may be, on an overall-relative assessment of their service record. Rule 5(5) directed to prepare list and include the candidates for appointment to the required number of vacancies. Considering the Rule at p. 631 in para 16 and following the ratio in Capoor case this Court held that the grading was for the purpose of being placed in the select list to ensure that select list is drawn up on the basis of merit and suitability and to obviate the necessity of giving reasons for the supersession of any officer. In para 18 at p. 632, it was further held that there was no necessity to record any reason, in view of the amended statutory provisions. Therefore, the criticism of the Tribunal that due regard to the seniority was not given is not correct."
20. The criteria of comprising was disclosed in the rule and in the light of this Judgment, there is no illegality in the procedure. If a promotion has taken place in the light of the rules, that cannot be challenged by a candidate on the ground that the select list was not in terms of the seniority list and the juniors were placed above him. A reference may be made to the judgment in the case of "Central Council For Research in Ayurveda & Siddha & Another v. Dr. K. Santhakumari" reported in (2001) 5 SCC 60. Paragraph nos.6, 7, 8, 9, 10 and 12 of the said judgment are quoted hereinbelow:
"6. The principle of merit-cum-seniority is an approved method of selection and this Court in Sant Ram 19 Sharma v. State of Rajasthan held that promotion to "selection grade posts" is not automatic on the basis of ranking in the gradation list and the promotion is primarily based on merit and not on seniority alone. At p. 1914 of the judgment, it is stated as under: (AIR para 6) "The circumstance that these posts are classed as 'selection grade posts' itself suggests that promotion to these posts is not automatic being made only on the basis of ranking in the gradation list but the question of merit enters in promotion to selection posts. In our opinion, the respondents are right in their contention that the ranking or position in the gradation list does not confer any right on the petitioner to be promoted to selection post and that it is a well-established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is, therefore, available."
7. The Court further held that such mode of selection is not violative of Article 14 of the Constitution.
8. In State of Orissa v. Durga Charan Das the Constitution Bench of this Court held that the promotion to a selection post is not a matter of right which can be claimed merely by seniority.
9. In Union of India v. Mohan Lal Capoor (SCC at p.
856, para 37) it was held as under:
"[F]or inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play only a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining factor, or, if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale."
10. In B.V. Sivaiah v. K. Addanki Babu this Court held that 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.
12. In the instant case, the selection was made by the Departmental Promotion Committee. The Committee must have considered all relevant facts including the inter se merit and ability of the candidates and prepared the select list on that basis. The respondent, though senior in comparison to other candidates, secured a lower place in the select list, evidently because the principle of "merit- 20
cum-seniority" had been applied by the Departmental Promotion Committee. The respondent has no grievance that there were any mala fides on the part of the Departmental Promotion Committee. The only contention urged by the respondent is that the Departmental Promotion Committee did not follow the principle of "seniority-cum-fitness". In the High Court, the appellants herein failed to point out that the promotion is in respect of a "selection post" and the principle to be applied is "merit-cum-seniority". Had the appellants pointed out the true position, the learned Single Judge would not have granted relief in favour of the respondent. If the learned counsel has made an admission or concession inadvertently or under a mistaken impression of law, it is not binding on his client and the same cannot enure to the benefit of any party."
21. In the light of this judgment, there is no illegality. Admittedly, the rules clearly show that the promotion in respect of Superior Judicial Services was to be made on the basis of selective test, which has been done in terms of the rules. Thus, there is no illegality in the list. The argument of the learned counsel for the petitioners that earlier at three times for promotion this criteria was not followed, is not accepted by this Court as it is well settled that negative equality cannot be a ground for such claim. A reference may be made to the case of "Basawaraj v. Land Acquisition Officer" reported in (2013) 14 SCC 81 Paragraph no. 8 of the said judgment are quoted hereinbelow:
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or 21 multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh, Anand Buttons Ltd. v. State of Haryana, K.K. Bhalla v. State of M.P. and Fuljit Kaur v. State of Punjab.)"
22. Moreover, the earlier selection process are not before us for determination. The judgment relied by the learned counsel appearing on behalf of the petitioners in the case of "State of Kerala & Another v. N.M. Thomas & Others"(supra), it has been held that the equality of opportunity takes within its fold all stages of service from initial appointment to its termination including promotion but it does not prohibit the prescription of reasonable rules for selection and promotion, applicable to all members of a classified group. In paragraph no.28 of the said judgment, it has been held that equality of opportunity need not be confused with absolute equality. Article 16(1) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. Thus, this judgment is not helping the petitioners. The learned counsel appearing for the petitioners relied in the case of "Sarat Kumar Dash & Others v. Biswajit Patnaik & Others"(supra) is not helping the petitioners as the ratio of that judgment is in favour of the respondents. In the case of "Chandrika Ram & Others v. The State of Jharkhand & Others", the Division Bench of this High Court interfered on the ground that 50% of total marks for Interview was excessive and it has caused serious prejudice to the Officers who have put in long years of service whereas in the case in hand, the total marks for Interview was not fixed for 50% and it was in terms of the rules. Further, in that case, the Division Bench of the Hon'ble High Court clearly signifies that Rule-5(iv) does not provide for fixation of minimum qualifying marks 22 that is why in absence of the Rules, selection process was vitiated, whereas the case in hand after amendment in the year 2014, Govt. of Jharkhand by Gazette added the clause of suitability test. Thus, this judgment is not much helping the petitioners.
23. As a cumulative effect of the above discussion, the Court finds that there is no illegality in the entire process of promotion which was held in terms of the Rules of 2014 which was applicable at the time of process started with regard to promotion to the petitioners as well as the private respondents. No relief can be extended to the petitioners in this petition, and accordingly, W.P.(S) No.3771 of 2019 is dismissed.
24. Pending interlocutory application, if any, also stands disposed of.
(Dr. Ravi Ranjan, C.J.) I agree (Dr. Ravi Ranjan, C.J.) (Sanjay Kumar Dwivedi, J.) SI/ N.A.F.R:,