SC stays Gujarat's notification promoting judges, says contrary to relevant rules, decision of top court

New Delhi [India], May 12 : The Supreme Court on Friday stayed the notification issued by the Gujarat government, promoting judges under the select list quota as it noted that the select list was illegal, contrary to the relevant Rules and Regulations and even to the decision of the top court.

A bench of justices MR Shah and CT Ravikumar said, "We are more than satisfied that the impugned Select List dated March 10, 2023, issued by the High Court and the subsequent Notification dated April 18, 2023, issued by the State Government granting promotion to the cadre of District Judge are illegal and contrary to the relevant Rules and Regulations and even to the decision of this Court in the case of All India Judges' Association and Ors. (supra)."

"Therefore, we are more than prima facie satisfied that the same as such are not sustainable," the court ruled.

However, the court clarified that "the present stay order shall be confined with respect to those promotees whose names do not figure within the first 68 candidates in the Merit List, on the basis of the merits, the copy of which is produced by the High Court along with the counter".

"Meng thereby, the promotion of those promotees, whose names otherwise do figure in the first 68 candidates in the Merit List shall be continued as even otherwise and even if the writ petition is allowed, in that case also, they will get the promotion on merits, the top court also made it clear," the court said.

The decision came after taking into consideration the fact that the state government has issued the impugned notification dated April 18, 2023, during the pendency of the present writ petition and after the receipt of the notice issued by this Court in the present proceedings and, thus, despite in knowledge of the present proceedings, however, subject to the ultimate outcome of the present writ petition and as observed, the state government could have waited till the next date of hearing by this Court, which was on April 28.

"...At present the respective promotees have not assumed their posting on the promotional post and as such are sent for training, we stay the further implementation and operation of the Select List dated March 10, 2023, issued by the High Court of Gujarat and the subsequent Notification dated April 18, 2023, issued by the State Government. Meng thereby, the respective promotees be sent to their original posts which they were holding prior to their promotion vide Select List dated March 10, 2023, and Notification dated April 18, 2023," the court said.

The court made the observation while noting down that the merit list produced before the High Court, the candidates, who have secured much more marks are denied promotion and the candidates/Civil Judge (Senior Division), with fewer marks and are less meritorious are promoted.

In the present case, one of the petitioners secured 135.50 out of 200 marks and another petitioner secured 148.50 marks out of 200 against which a candidate having secured 101 marks got the promotion, which is affecting the principle of "merit-cum-seniority".

Looking to the importance of the matter and pursuant to which the high court has amended the rules and the regulations, the top court opined that the matter be heard by the Bench headed by the Chief Justice of India, subject to and after obtaining appropriate orders from him on the administrative side. The court directed the Registry to notify the present writ petition for a final hearing on August 8 2023.

The court was hearing a petition seeking to issue a direction or order to declare the Select List dated 10.03.2023 issued by the High Court of Gujarat at Ahmedabad for the promotion of Senior Civil Judges to the Cadre of District Judge (65 per cent quota) as being violative of Article 14 of the Constitution of India as well as Rule 5 of the Gujarat State Judicial Service Rules, 2005 as well as the Recruitment Notice District Judge (65 per cent) dated April 12, 2022.

The Gujarat High Court issued an advertisement by way of Recruitment Notice - District Judge (65 per cent) dated April 12, 2022, for the promotion to the cadre of District Judges from amongst the Senior Civil Judges on the basis of the principle of merit-cum-seniority and passing a suitability test to fill up 65 per cent of the vacancies. The said notification was issued alongwith a list of 205 judicial officers in the cadre of Senior Civil Judges\falling under the zone of consideration.

Interestingly, the state government hurriedly issued the notification dated April 18, notifying the appointment of 68 candidates, who were selected by Select List dated March 10, 2023.

However, the notification mentioned that the appointments/promotions shall be subject to the outcome of the present writ petition.

It was submitted before the court that as per the relevant Recruitment Rules and the Recruitment Notice, 65 per cent of the posts in the cadre of District Judges shall have to be filled in by way of promotion from amongst the senior civil judges on the basis of the principle of merit-cum-seniority and passing a suitability test.

It was submitted that despite the above, the high court as well as the state government have given the promotion by applying the principle of seniority-cum-merit and the principle of merit-cum-seniority has been given a go-by.