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2 Hereinafter also referred to as ‘the Rules of 1970’.  15.01.2010 and 27.01.20113 concerning the criteria for appointment of a member of higher judicial service to the post of District Judge and Sessions Judge or its equivalent.

3. While passing the order impugned, the High Court upheld the gradual implementation of the eligibility criteria for promotion to the post of District and Sessions Judge or equivalent with reference to the gradings in the Annual Confidential Reports4 in five years preceding the base year of consideration. However, while concluding on the matter, the High Court also made certain observations on desirability of uniform norms for award of such gradings; and issued directions for evolving uniform grading system for future implementation.

11. The counter-submissions on behalf of the contesting respondent could also be briefly taken note of as follows:

11.1. The learned counsel for respondent No. 1 has submitted that the posts of District and Sessions Judge and the Principal Judge, Family Court are selection posts to which, appointments are to be made on the basis of merit-cum-seniority and therefore, the appellant cannot claim appointment thereto as a matter of right. The learned counsel has referred to the facts that prior to the year 2008, there was only one sanctioned post of District Judge under the Delhi Higher Judicial Service Rules, 1970 but later on, the National Capital Territory of Delhi was bifurcated into 9 Civil Districts with effect from 01.11.2008; and that pursuant to such bifurcation, the strength of District and Sessions Judges was increased to 11. The learned counsel has referred to the aforementioned resolutions by the Full Court with the submissions that prior to the year 2009, there was no criteria laid down by the High Court for selecting candidates for appointment to the post of District Judge but, given the requirement of laying down standards for such selection, the said resolutions were adopted and implemented while keeping in view Rule 27 of the Rules of 1970 and the norms prescribed by the Government of India under OM dated 15.02.2008 for the posts having the pay scale equivalent to that of a District Judge. 11.2. With reference to Article 233(1) of the Constitution of India, the learned counsel would submit that the power to appoint District Judges lies strictly with the High Court and it was in exercise of such powers that the High Court laid down the criteria in question for selection of the most meritorious among the eligible candidates. While reiterating the submissions that appointment to the posts in question is purely on merit-

17.2. In the given fact situation and the methodology of gradual implementation adopted by the High Court, the suggestion on the part of the appellant that there had been any so-called retrospective operation of revised criteria remains totally bereft of substance and could only be rejected.

18. Turning now to the main plank of the submissions on behalf of the appellant that she was not made aware of such so-called revised criteria, in our view, such submissions carry several shortcomings of their own. As noticed, the appellant joined DHJS in the year 2002 and eventually stood second in rank in her batch. She was confirmed with effect from 25.11.2004. She was, and would always be presumed to be, aware of all the requirements of the Rules of 1970. Moreover, the appellant, a member of DHJS, cannot suggest that she remained oblivious of the developments about creation of 9 Civil Districts in the year 2008 and increase in the strength of District and Sessions Judges to 11. The appellant was also aware of the fact that no specific provision was available in the Rules of 1970 as regards upward progression in DHJS, particularly to the posts of District and Sessions Judge and Principal Judge, Family Court and hence, by virtue of Rule 27 of the Rules of 1970, she would be deemed to be having constructive knowledge that the criteria to be adopted for such upward progression would be that as applicable for the equivalent posts in IAS. The Office Memorandum dated 18.02.2008 issued by the Government of India in its Ministry of Personnel, Public grievances and Pensions (Department of Personnel and Training) has been placed on record by the contesting respondent and it is not the case of the appellant that she was not aware of this Office Memorandum issued by the Government of India 11. When it had consistently been provided that for promotion to the scale of Rs. 18,400 – 22,400 and above, the prescribed benchmark of “very good” ought to be met in all ACRs of five years under consideration; and when the higher posts of District and Sessions Judge and Principal Judge, Family Court do carry much higher scales of pay (vide Rule 18 ibid.), neither the 11 In the said OM, it had, inter alia, been provided that, – “…in order to ensure greater selectivity at higher level of administration, the DPC may ensure that for the promotion to the scale of Rs.18,400–22,400 and above, the prescribed benchmark of ‘Very Good’ is invariably met in all ACR's of five years under consideration…” High Court could be faulted in applying the same benchmark for such higher posts in DHJS nor the appellant could feign ignorance about the same. 18.1. Apart from the above, it is noteworthy that in the Rules of 1970, even the entry level promotion to the post in DHJS is on the basis of merit-cum- seniority or merit. Viewed in the light of such requirements, it goes without saying that any upward progression in DHJS could only be on the higher requirements of merit and in any case, such requirements cannot be lesser than the requirements at entry level. In this view of the matter too, the appellant was conscious of the fact that for upward movement in DHJS, merit would acquire primacy; and that seniority alone was not going to be decisive for promotion to the higher posts of District and Sessions Judge and the Principal Judge, Family Court. Although there is no requirement in law that criteria for promotion based on ACR alone be also notified but, in any case, in the scheme of the rules and the requirements of the posts in question, the appellant cannot contend that she was not aware of the position that comparative merit of the incumbents shall be a crucial factor for any upward progression in the cadre.

41. In our opinion, non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.” 25.1. In our view, reference to the aforesaid principles remains totally misplaced in the fact situation of the present case. It is not in dispute that the appellant was, in fact, informed of every grading made in her ACR. She was awarded ‘B+’ (good) in the years 2010, 2011, 2012 and 2013; and ‘A’ (very good) in the year 2014. From the material placed on record, it appears that the appellant never challenged her gradings for any year except that for the year 2011 when she requested for upgradation of her ACR grading from ‘B’ to ‘B+’ or ‘A’; and the High Court, acceding to her request, upgraded her ACR to ‘B+’. As noticed, the impugned resolution dated 27.01.2011 came to be adopted after due consideration of the representations made to the High Court and in conformity with the criteria provided by the Government of India for the posts equivalent in scale to that of District Judges. However, the criteria of having ‘A’ (very good) grading in the preceding five years was implemented in a phased manner, as already noticed hereinbefore. The appellant, not being oblivious of the position that for any upward progression in DHJS, comparative merit would be a key factor, chose to remain contented with her grading at ‘B+’ in the relevant years and did not question the same at the appropriate time and in appropriate manner. That being the position, the appellant cannot be acceded the right to contend now and at this stage that the ACR gradings have operated adverse to her. The requirements of the decision in Dev Dutt (supra) were duly met with communication of ACR gradings to the appellant.