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TMI Blog2006 (5) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... 1964 (for short the 1964 Rules ). Rule 38 of the 1964 Rules relates to promotion which is set out hereunder: 38(1) Promotions shall be made on merit, but seniority in the cadre shall be ordinarily taken into account as far as possible. A person, however, may receive special promotion for recognized merit irrespective of the grade to which he may belong or irrespective of the seniority within the grade. (2) The post of Superintendent and any higher post shall be considered as selection post and no court servant shall have a claim to them merely by way of seniority. An office order in the form of a 'resolution' was issued by the Government of Gujarat on or about 20th March, 1982 which is in the following terms: In Government Resolution, General Administration Department No. SLT 1177 G, DATED 20/05/1978 the principle of selectivity has been accepted for the purpose of appointment by promotion to the post of Heads of Departments. For this purpose a selection committee is also set up under Government Resolution, General Administration Department No. SLT 1177 G-2 dated 11/11/1980 consisting of (1) the Chief Secretary (2) the Senior Most Secretary to Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Governor. 91. Savings of the powers of the Chief Justice:- (1) Nothing in these Rules shall be construed to limit or abridge the powers of the Chief Justice to deal with the case of any Court servant or any person to be appointed to the service in such manner as may appear to him to be fit and proper. (2) The Chief Justice may from time to time alter, amend or repeal any of these Rules and make such further Rules or pass such orders as he may deem fit in regard to all matters herein provided or matters incidental or ancillary to these Rules or in regard to matters which have not been provided or sufficiently provided for in these Rules. Provided that if such orders relate to pay, salaries, allowances, leave or pension of the servants of the High Court such orders shall be made with the approval of the Governor. The writ petitioners - Appellants principally raised two contentions: (i) The High Court committed an illegality in allowing all the 91 candidates to appear at the viva-voce test although the zone of consideration therefor as envisaged under the Resolution dated 20th March, 1982 was confined to the three times number of vacancies and, thus, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was directed: Thus, it is only the consideration of candidates beyond the zone of consideration, i.e., beyond Sr. No. 75 in eligibility list being in violation and breach of G.R. dated 20.3.1982 which can held to be illegal. Consequently, it is held that selection of respondents No. 10 to 15 namely, Mr. G.S. Marapally, whose name appears at Sr. No. 76, Mrs. N P Tekani, whose name appears at Sr. No. 77 in the list of eligible candidates, respondent No. 12 Mr. V.K. Pathak, at Sr. No. 85, respondent No. 13 Mrs. Sujitra Rajan at Sr. No. 88, respondent No. 14 Mr. A.S. Raghupathy at Sr. No. 89 and respondent No. 15, Mrs. Gracy ST. at Sr. No. 90 is illegal and bad in law. In regard to the contention of violation of Rule 47, the learned Single Judge opined: It is stated that upto 1979, promotions were given on the basis of seniority-cum-merit. The merit was considered on the basis of Confidential Reports and other service record. However, thereafter, a method of judging the capacity of the Senior Assistants due for promotion to hold the Supervisory post of Section Officer from their performance on the tables on which they were working was not found adequate and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the persons of matured personality, appraisal of past performance is the basic and essential requirement. It is also not in dispute that the system of writing Annual Confidential Report is in existence in the High Court establishment. It is of course true that it has been subject to criticism to certain extent, but for that efforts can be made to bring change therein by substituting a new and more open Participatory Appraisal system. The comparative merit could be assessed by taking into consideration, the Annual Confidential Reports. Dealing with seniority in judging the merit, it is true that seniority occupies the back seat in case of selection purely by merit, still, it cannot be ignored completely The High Court noticed the marks obtained by the 15 employees in the written examination and held that in adopting the selection process, merit has taken a back seat, in the following terms: It is indeed a travesty of selection that persons of average merit have superseded large number of employees in the cadre of Assistants in the name of merit. Most of the selected candidates scored minimum marks i.e. 40% which is just above 1/3 of the maximum i.e. III Division marks. Fixing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be considered eligible for section. Therefore, to be eligible for selection a candidate was required to obtain minimum 32 marks out of 80 in aggregate at the written as well as oral tests. However, it was found that several candidates had obtained less than 11 marks at the written test and on submission being made, the selection committee directed that those who had secured less than 11 marks at the written test should not be called for oral test because even if 20 marks were secured at the oral test by those candidates, the total would not be 40% marks. We find that since the oral test was of 20 marks, even if a candidate securing 11 marks at the written test was given full 20 marks, he would not reach the qualifying standard of 32 marks out of 80 and, therefore, only such of the candidates who had secured 12 or more marks at the written test, were called for oral test. In our view, this cannot be said to be illegal at all. It would have been an exercise in futility to call those candidates for interview who had secured less than 12 marks at the written test... Mr. Sanjay Kapur, learned counsel appearing on behalf of the Appellants submitted that the High Court on its a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded 12 such employees against whom adverse remarks were made and 6 out of such employees against whom enquiries were pending and, thus, restricting 75 employees within the zone of consideration, it would mean that only 75 18 = 57 would be considered. It was, therefore, directed: There is no reason to exclude 76 to 91 (16) eligible persons when 18 persons also being considered. Mr. Kapur may be right in his submission that applicability of the said Resolution had never been questioned. The High Court on its administrative side admittedly proceeded on the basis that the said Resolution of the State was applicable and only on the said premise placed the matter before the then Acting Chief Justice for his direction as to whether only 75 Assistants should be invited to appear before the Selection Committee being within the zone of consideration in terms of the said Resolution. Even applicability of the said Resolution was not questioned before the learned Single Judge, but the same would not, in our considered view, mean that only because at one point of time the High Court committed a mistake in proceeding on the basis that the said Resolution of the State was applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s specifies the mode and manner in which respective merit of the candidate is to be determined. The High Court or for that matter the selection committee could not have ignored the same. In any event, it was for the members of the selection committee, in absence of any marks having been allotted under the rules for judging the past performance of the candidates, to devise a mode therefor. The candidates had no say in the matter. Annual Confidential Reports of the employees concerned must have been placed before the selection committee with a view to enable it to prepare a select list. If they had not adopted any criteria in that regard, the concerned employees cannot be blamed therefor. The same, however, may not by itself be sufficient to set aside the entire selection process. The records have not been placed before us. The Appellants might not have obtained the requisite marks for passing the examination either in the written test or at the oral test or both. If any of the Appellants, failed to obtain qualifying marks fixed in terms of the Rules, viz., 40 marks, the question as to whether their past performance was otherwise better than the candidates who had been selected wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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