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As against this, Dr. Mukul Sinha, learned Counsel for the respondents pleaded that past performance is an independent and separate factor which is totally ignored by the selection committee while effecting the selection and, therefore, the learned Single Judge was justified in setting aside the selection. It was claimed that the question whether policy of promotion as reflected in Rule 47(2) of the Rules was adhered to or not by the selection committee can always be gone into by the Court in a petition under Article 226 of the Constitution and, therefore, the learned Single Judge did not exceed jurisdiction while deciding the petition filed by those who were aggrieved by the selection. What was stressed was that past performance plays an important role in adjudging the merits of the officers and as consideration of the same is not reflected on the files, the selection should be treated as arbitrary. The learned Counsel emphasised that when marks were allotted for written test and oral test, it was incumbent upon the selection committee to allot marks for past performance in order to eliminate arbitrariness while making selection and therefore, the learned Single Judge was perfectly right in holding that the selection was contrary to Rule-47(2) of the Rules. The learned Counsel for the contesting respondents brought to the notice of the Court the marks secured by the selected candidates and pleaded that officers whose performance was average have been selected by the selection committee for the post of section officers and, therefore, no exception can be taken to the finding recorded by the learned Single Judge that the selection was not on merits. It was also highlighted that in view of the changes in guidelines laid down in the Rules of 1992, a better procedure for selection ought to have been evolved by the High Court and as past performance was ignored while adjudging merits of the officers, appeals should be dismissed. In support of his submissions, learned Counsel placed reliance on the decisions rendered in the cases of (i) B.V. SIVAIAH ORS. v. K. ADDANKI BABU & ORS.,(1998) 6 SCC 720, (ii) C.P. KALRA v. AIR INDIA THROUGH ITS MANAGING DIRECTOR, BOMBAY AND OTHERS, 1993(7) SLR page 1, (iii) UNION OF INDIA v. M.L. CAPOOR & ORS., AIR 1974 S.C. 87, (iv) A.P. STATE FINANCIAL CORPORATION v. C.M. ASHOK RAJU & ORS. ,(1994) 5 SCC 359, and (v) JAGATHIGOWADA C.N. & ORS. v. CHAIRMAN, CAUVERY GRAMINA BANK & ORS.(1996) SCC (L & S) 1310.

Though it was not averred in the petition that the past record was not taken into consideration by the selection committee, it was averred in the affidavit-in-reply filed on behalf of the High Court that service records of all the candidates were placed before the selection committee and those records were considered. This statement made in the affidavit-in-reply is not controverted by the original petitioners in the affidavit-in-rejoinder. The fact that service records were called for and were placed before the selection committee is not in dispute and, therefore, it would be reasonable to presume that service records were considered by the selection committee. However, non-assignment of marks would not indicate that the selection was made by the selection committee in an arbitrary manner. Rule-47(2) of the Rules is, in our view, complied with and there has been no material indicating irregularity or illegality committed by the selection committee when it did not indicate separate marks for past performance. As pointed out earlier, merits has to be assessed on the basis of past performance, written test and oral test. When a candidate has to appear at written and oral test his merits can be ascertained with reference to marks obtained by him at the tests. However, no test is being held for past performance and what is required to be done is to scrutinise and examine the past record for which assignment of marks may not be necessary in all cases. What procedure should be adopted for assessing merits while considering, three criterions has to be left to the selection committee and it is not open to the Court hearing a petition under Article 226 of the Constitution to lay down that a particular procedure ought to have been adopted by the selection committee. No conclusion is possible that in absence of allotment of separate marks for past performance, Rule 47(2) stands breached. The factum of service record being before the Committee, is not disputed, but what is objected is that consideration is not reflected in the sense of allotment of separate marks. The fact that service record is considered is evident from another fact that two candidates having adverse remarks were also considered. The record indicates that same norms and same yard-stick have been applied by the selection committee to all the candidates. There is no dispute that the tests- both oral and written were fair except non-grading of past experience. No bias is alleged in this case against the members who constituted the selection committee. The record does not indicate that undue advantage was given to any of the selectees. Therefore, we are of the firm opinion that the selection is free from arbitrariness. The submission made by Dr. Sinha, learned Counsel for the respondents that having regard to the judgments cited at the bar, marks allotted to past records should have been 50% minimum, cannot be accepted. It is also difficult to accept the submission that because of non-assignment of marks, arbitrariness has crept into consideration made by the selection committee. In each case cited by Dr. Sinha, assessment of merits was required to be made on examination of record and there were guidelines which required the authorities to assess the record. Moreover, in no case cited, there was provision to hold written test. It may be stated that when the merit is the sole basis for promotion, selection of juniors for promotion does not amount to supersession and superseded officer has no right to claim place in the select list. Under the present rules, it is for the selection committee to devise its methodology for adjudging merits of the candidates on the basis of three considerations. In STATE BANK OF INDIA AND OTHERS v. MOHD. MYNUDDIN, 1987(4) S.L.R. 383 it is held by the Supreme Court that methodology for assessing merits of the candidates has to be left to the selection committee and the Court has to examine whether methodology is arbitrary in context of candidate. Though the decision cited at the bar by the learned Counsel for the contesting respondents indicates that in some cases as per instructions or relevant rules, 50% marks were assigned for past performance, it is not laid down that there should be marking or scoring for past performance in every case of selection on merit. It is clear from the reading of Rule 47(2) of the Rules that the post of Section Officer is the selection post. As observed earlier, the said rule provides that selection for the post of Section Officer has to be made on the basis of written test, viva voce and past record. The rule itself does not provide any allocation of marks for such different heads. The said rule and the procedure is known to all including candidates who participated in selection process in question. After having participated in the selection process and failed, the unsuccessful candidates have challenged the selection, which in our view, is contrary to the two judgments of the Supreme Court rendered in the cases of (1) OM PRAKASH SHUKLA v. KUMAR SHUKLA & ORS., AIR 1986 S.C. 1043, and (2) MADAN LAL AND OTHER v. STATE OF JAMMU AND KASHMIR AND OTHERS, AIR 1995 S.C. 1088. While considering this point, the Supreme Court in UNION OF INDIA AND ANOTHER v. N.CHANDRASEKHARAN AND OTHERS, 1998 SCC (L & S) 916, has observed, "It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected, by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and that the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report." In this case also, selection is pursuant to the rule which is known to all wherein exact marks or the weight age for past record has not been prescribed. All the candidates were aware of this rule and procedure for promotion before they sat for written test and before they appeared for viva voce before the selection committee. Therefore, they cannot turn around and contend later when they found that they were not selected by challenging the procedure adopted by the selection committee or ultimate selection made by the selection committee. Under the circumstances, challenge to the selection should fail on this count alone. At this stage, it would be advantageous to refer to one epoch making judgment of the Supreme Court rendered in S.P. BISWAS AND OTHERS. v. STATE BANK OF INDIA, AIR 1991 S.C. 2039. The Supreme Court has, inter-alia in para-4 of the said judgment held, "Of the several heads under which the marks are divided for promotion to Merit Channel, written test and interview are the only ones which depend on the current performance. The marks under the remaining three heads of seniority, performance appraisal and C.A.I.I.B. (passing of examination held by Bank's Institute) relate to past performance of the candidate which are matters of record. It is, therefore, the appraisal of the current performance by written test and interview which alone is the real part of a proper appraisal of the current performance of the candidate for the purpose of assessing his merit for promotion through the Merit Channel. In this situation, if the marks obtained in the written test alone are taken into account for preparing the Select List to call candidates for an interview depending upon the number of vacancies available in Merit Channel, the criterion adopted cannot be termed arbitrary. As earlier indicated, the marks obtained for seniority, performance, appraisal and C.A.I.I.B. are based on service record and not on appraisal of the candidate by a mode independent of service record for assessing the true current worth of the candidate." In view of the authoritative pronouncement of law made by the highest Court of the land in the above referred to decision, challenge to the selection on the ground that marks are not allotted to past record and, therefore, selection is bad, must fail, more particularly when selection committee in the present case had taken into consideration past performance of the candidates. It would also be instructive to refer to the judgment rendered by this Court (Coram : P.D.Desai, J. as he then was) in Special Civil Application No. 1272 of 1980 decided on September 1, 1980 in almost identical matter. Therein the petitioner who was employed in the post of Assistant on the establishment of Gujarat High Court, had complained about his supersession in the matter of promotion to the post of Section Officer. The promotion to the post of Section Officer was governed by Rule 38(2) of the old Rules of 1964, which was as under :-