Gopal Ranchhodlal Modi vs City Civil And Sessions Court Ahmedabad

Biren Vaishnav, J

Rule returnable forthwith. Learned advocates appearing for the respective parties waive service of notice of rule. By way of this petition, under Article 226 of the Constitution of India, the petitioner working as a Bench Clerk with the City Civil Court at Ahmedabad has prayed for quashing and setting aside the Office Order dated 11.08.2021 and for a further direction to appoint the petitioner to the post of Deputy Registrar at the establishment of the City Civil and Sessions Court, Ahmedabad.

Facts in brief are as under:

2.1 The petitioner was on 01.06.1984 appointed as a Section Writer. He was confirmed as an Assistant on 01.01.1989. The petitioner holds a Bachelors Degree in Law and has passed his Higher and Lower departmental examinations along with CCC+. The date of superannuation of the petitioner is 28.02.2022. Initially the petitioner was handed over the additional charge of the post of Deputy Registrar with effect from 31.03.2015 which was extended from time to time vide orders dated 21.10.2015, 22.12.2016, 09.03.2020 and 12.03.2020. The petitioner having completed 37 years of service on the establishment of the City Civil Court aspires for promotion to the post of Deputy Registrar on the establishment of the City Civil Court.

2.2 It appears that a meeting of the advisory committee of the Departmental Promotion Committee (DPC) was held on 18.12.2017. One of the agendas of the DPC was to issue necessary directions to forward the names of Bench Clerks, Grade-I for promotion to the post of Deputy Registrar on the establishment of the court. It was found that there were in all four sanctioned posts of Deputy Registrar in the establishment of the City Civil and Sessions Court, Ahmedabad. Four posts had fallen vacant on account of retirements of the incumbents therein and they were lying vacant awaiting to be filled by promoting eligible candidates. A list of Bench Clerks including that of the petitioner was considered for promotion. The rules for promotion according to the petitioner relevant for the purpose are The Non-Judicial Officers and Staff of Courts (Recruitment and conditions of service) Rules 2017 (for short ‘the Rules’). Schedule B of the Rules provides that the promotion to a person has to be given on the basis of proved merit, efficiency and past performance. Merit has to be evaluated by oral/personal interview. Accordingly, personal interviews were held of the candidates including that of the petitioner and the DPC found four Bench Clerks eligible as they were fulfilling the criteria to be promoted as Deputy Registrars. The petitioner being a law graduate expected to be preferred in the matter of promotion. The names of these four incumbents eligible for promotion were forwarded by the then Principal Judge of the City Civil Court to the Registrar General of the High Court of Gujarat by a communication dated 26.03.2018. In the letter recommending the names of the incumbents including the petitioner for promotion, it was opined that the petitioner had a law degree and so had one Mr. R.S. Brahmbhatt whereas the other two were not even possessing the ordinary recognised degree of graduation.

2.3 It appears that the recommendation sent to the High Court on 23.03.2018 was returned by the High Court after more than three years on 15.03.2021. By a confidential letter dated 04.05.2018, the High Court on its administrative side by addressing a letter to the Principal Judge, City Civil Court returned the proposals in question with a request to send fresh proposals for approval of selection for promotion to Class-I posts only after selecting the incumbents in accordance with the new guidelines prescribed by the High Court vide circular dated 01.05.2018. It will be noteworthy that as per the circular dated 01.05.2018, promotion to Class-I posts was to be done by calling candidates 3 times the number of vacancies and the assessment of the eligible candidate was to be done on the basis of Annual Confidential Reports of the last five years as well as oral interview. 60 marks were to be allotted for Annual Confidential Reports and 40 marks were to be allotted for oral interview. While allocating 60 marks for Annual Confidential Reports of the last 5 years, as per the circular, the committee was to be guided by confidential remarks, overall grading of the officer, if assigned and adverse remarks, if any. The circular also stipulated that while selecting the incumbent preferred qualification if prescribed may be given due consideration.

2.4 Based on this confidential communication of 01.05.2018, approximately 3 years thereafter, the Principal Judge, City Civil Court, by a communication dated 15.03.2021, taking into consideration the circular of 01.05.2018 sent a fresh proposal in detail reiterating the fact that instead of four vacancies as earlier shown in 2018, five vacancies had occurred on account of superannuation and death of the incumbents which needed to be filled in. According to the letter, the DPC had held a meeting on 12.03.2021 based on an interview held on 05.02.2021 and 06.02.2021 and found five candidates suitable for promotion including the petitioner. The communication stated that three of the incumbents of which the petitioner was one were holding the charge of Deputy Registrar. The letter dated 15.03.2021 recommending the name of the petitioner based on the interviews held suggested that the petitioner's name was, in accordance to the gradation list dated 03.02.2020, at Sr. No.

Assessment done on the basis of the circular dated 01.05.2018 and pursuant to the interview dated 05.02.2021 and 06.02.2021 was also sent across. A communication was once again addressed by the Principal Judge, City Civil and Sessions Court to the Registrar General, High Court of Gujarat on 11.06.2021 enclosing the minutes of the DPC meeting held on 12.03.2021 which was in continuation of the letter dated 15-18.03.2021. The High Court on its administrative side by communication dated 04.08.2021 once again inviting the reference to the letter of Principal Judge of 18.03.2021 returned the proposal requesting to select the incumbents for promotion to the post of Deputy Registrar and also to record reasons to fill up the posts in question in public interest in case experience criteria is relaxed. In other words, the recommendation made by the letter of 15.03.2021 including the petitioner was returned.

2.4 The DPC again met on 05.08.2021 at the City Civil and Sessions Court, Bhadra and on reconsideration it found that in pursuance of the direction of the High Court to strictly consider question of promotion on merits and also to record reasons, though the proposal was sent of the five incumbents including that of the petitioner, on reconsideration of the select list in terms of the instructions, the eventual shortlisted candidates forwarded to the High Court named five candidates who are respondents no. 3 to 7 in the present petition and the petitioner found his name dropped. The minutes of the committee meeting of 05.08.2021 were forwarded by the Principal Judge, City Civil Court on 09.08.2021 and in accordance with the prior approval of the High Court sought, which was granted, respondents no. 3 to 7 were recommended and promoted by orders dated 11.08.2021 to the post of Deputy Registrar, City Civil Court overlooking the case of the petitioner. He made a representation on the administrative side to the High Court on 17.08.2021 which was ordered to be filed, hence the petition.

Mr. Ashutosh Dave, learned counsel for the petitioner would submit that the order dated 11.08.2021 overlooking the case of the petitioner for promotion was illegal. He would submit that what is evident from the communication dated 23.03.2018 was that four posts of Deputy Registrars had fallen vacant. The name of the petitioner was sent with the other incumbents for the approval of the High Court on 26.03.2018. It was a specific mention that two Bench Clerks including the petitioner possess a degree of law which was preferably required whereas the other two incumbents did not even possess the ordinary degree of graduation. The recommendation stay put with the High Court till it was returned for a fresh proposal by a communication dated 04.05.2018, pursuant to the circular of the High Court dated 01.05.2018.

3.1 Mr. Dave would further submit that after the proposal was returned on 04.05.2018, it was only after approximately three years that on 15/18.03.2021, in accordance with the circular of 01.05.2018 for the five posts which were lying vacant on account of superannuation and/or death, 15 incumbents were called for the posts of Deputy Registrar wherein the name of the petitioner was shortlisted and was sent for approval of the High Court on 18.03.2021. He would submit that in accordance with Rule 27 read with Schedule B and the placement of the petitioner at Sr. No. 2 on the seniority list, though merit was to be considered seniority could not be ignored and accordingly the name of the petitioner figured in the list. This Mr. Dave would demonstrate from the minutes of the meeting dated 12.03.2021 wherein the merit list was prepared and then after considering the above factors it was unanimously resolved to shortlist five candidates including the petitioner.

3.2 Mr. Dave would therefore submit that the subsequent reconsideration at the hands of the committee after the names were sent back on 09.08.2021 after relaxing the criteria and then ignoring and dropping the name of the petitioner was misconceived. He would submit that the petitioner was eligible on both counts – seniority and on the basis of seniority-cum-merit. His name figured at Sr. No. 2 on the gradation list dated 03.02.2020. He had a degree in Bachelor of Law which was a preferable qualification in accordance with Schedule B and also in accordance with the confidential communication/circular dated 01.05.2018. The relaxation under Rule 27 of the 1/3rd period was to be applied only in case candidates were not available with the requisite experience. Relying on the table produced at page 14 of the petition, he would submit that the petitioner possessed the requisite experience of 8 years and therefore ignoring his claim for promotion was bad. To consider and ignore the petitioner’s promotion only on the basis of merit was contrary to the Rule 27 of the Rules.

3.3 Mr. Dave further submitted that even otherwise the assessment of merit on the basis of 60% of marks was essentially a flawed exercise inasmuch as one Mr. Shaikh who at Sr. No. 5 had got 38.4% of marks out of 60% as against the petitioner having got 37.0% when in fact admittedly a departmental inquiry was pending against Mr. Shaikh on the date when his date was considered. He would therefore submit that the exercise of denying promotion to the petitioner was bad.

Mr. Hemang Shah, learned counsel appearing for respondents no. 1 and 2 would submit that Schedule B of the Rules provided that promotion to the post of Deputy Registrar to the City Civil Court was on the basis of proved merit, efficiency and past performance. Merit has to be evaluated by oral/personal interview. Though the initial proposal included the name of the petitioner who was found eligible for promotion, the proposal was returned with a request to send a fresh proposal for approval. For selecting candidates in accordance with the new guidelines prescribed by the High Court vide its letter dated 01.05.2018, Mr. Shah would submit that a fresh detailed proposal was addressed by the City Civil Court on 15.03.2021 which was forwarded to the high Court in respect of all 15 candidates who were called for interviews on 05th and 06th February 2021. On the basis of assessment of 60/40, five candidates including the petitioner were shortlisted of which four were law graduates. However, on 04.08.2021, the files were returned that the question be considered strictly in accordance with merits. In the second list, the petitioner's name did not figure.

4.1 Mr. Shah would submit that though the petitioner was at Sr. No. 2 on the overall inter-se seniority of Bench Clerks, since he had secured less marks than the five selected candidates, his name including the other two stood removed for reasons recorded in detail. Relying emphasis on the language of Rule 27, Mr. Shah would submit that seniority alone was not the only criteria for promotion but merit and assessment was mandated in accordance with Rule 27 of the Rules.

4.2 Mr. Shah would submit that criteria for the purposes of selection for promotion in addition to the experience of eight years was also merit efficiency and past performance. According to Mr. Shah, though the petitioner had completed eight years but had secured less marks under merit, whereas respondents no. 3 to 7 had secured more marks under merit, though did not complete eight years of service, but the proviso of 2/3rd service period was invoked and they were so considered and therefore merely on the basis of seniority alone an incumbent is not entitled to get promotion. With regard to the assertion of the petitioner that he being a qualified law graduate, Mr. Shah would submit that it was only a preferable qualification.

Having considered the submissions made by the respective parties, in order to assess whether there was overlooking of the petitioner for promotion to the post of Deputy Registrar, the relevant rule position needs to be considered in context of the facts on hand. Promotions to the post of Deputy Registrar are governed by Rule 27 of The Non-Judicial Officers and Staff of Courts (Recruitment and conditions of service) Rules 2017. Rule 27 of the Rules reads as under:

“27. PROMOTION

(i) Where an appointment to any post is to be made by promotion, no employee shall be entitled to such promotion on the ground of seniority alone. No such appointment shall be made unless in addition to seniority, the employee to be appointed is found to be fit for such promotion.

(ii) No one shall be promoted to higher post unless he passes the requisite departmental examination as well as qualifying examination for Computer knowledge.

(iii) Promotion to any post in any class or category on the establishment of the Courts, shall be made by the Head of the Department in view of the Provisions of Rules 523 and 524 of the Civil Manual, 1960 as well as, as per the provisions made in Schedule-B to these Rules. However, prior approval of the High Court shall be required to be obtained for Class I posts.

However, where the Appointing Authority is satisfied that a person having the experience specified, is not available for promotion and that it is necessary in the public interest to fill up the post by promotion even of a person having experience of a lesser period, it may, for reasons to be recorded in writing, promote such person who possesses experience of a period of not less than two-thirds of the period specified.”

[Emphasis Supplied]

5.1 Schedule B of the Rules in the table provides as under:

Sr No

Original Designation

Present Designation

Mode of Recruitment

Name of Feeder Cadre

Minimum Qualification

Experienc e if required

5

Deputy Registrar, City Civil Courts, Ahmedabad

Deputy Registrar, City Civil Courts, Ahmedabad

By Promotion, of a person, on the basis of proved merits, efficiency and past performance. Merits shall be evaluated by Oral/Personal Interview

Secretary to the Principal Judge, City Civil Courts, Ahmedaba d / Bench Clerk Grade-I

Preferably Law graduate.

Not less than 08 years in feeder cadre jointly or separately

Considering the fact that the petitioner had his initial date of appointment as Bench Clerk be shown as 01.04.2012, the petitioner completed eight years of service in the year 2020. Reading of the letter of the Principal Judge dated 26.03.2018 addressed to the Registrar General of the High Court would indicate that in the year 2017, four posts of Deputy Registrars had fallen vacant on account of superannuation and retirement of Smt. S.T. Bhatt, Smt. K.P. Parikh, Ms. P.B. Raval and Shri K.R. Trivedi. The Principal Judge of the City Civil Court therefore opined that six Bench Clerks including the petitioner be considered for promotion. There was a reiteration of the fact that the promotion has to be done in accordance with Rule 27 of the Rules as specified in Schedule B on the basis of merit, efficiency and past performance. What was also observed was that the petitioner possessed a degree in law from a recognized University and was required to be preferred. The name of the petitioner along with four others was therefore recommended for promotion to the post of Deputy Registrar. The present respondent no. 3 – Mr. K.S. Solanki along with one Mr. C.T. Thakore was recommended for promotion with an endorsement that they did not possess the recognized degree of ordinary graduation. That recommendation of March 2018 was sent back by the High Court on the administrative side on 04.05.2018 requesting the City Civil Court to send a fresh proposal in accordance with the circular dated 01.05.2018. What the circular dated 01.05.2018 provided was that while making promotions assessment should be made on the basis of confidential records of the last five years as well as oral interview. 60% marks were assigned for confidential records and 40% marks were provided for oral interview. What was further provided was that while selecting an incumbent, preferential qualification, if prescribed, be given due consideration.

6.1 In line with these parameters once again the Principal Judge of the City Civil Court, on 15/18th of March instead of five recommended six candidates as the number of vacancies were five. The minutes of the meeting dated 12.03.2021 would indicate that in accordance with the communication dated 01.05.2018, 15 Bench Clerks working on the establishment found eligible in terms of inter-se seniority were called for oral interview on 05.02.2021. The list of candidates based on merits assessed on basis of the circular dated 01.05.2018 were placed on record together with the minutes of the meeting indicate that the petitioner’s name figured in the list of the 15 candidates. The committee after considering the factors resolved to shortlist five candidates including the petitioner. That recommendation again was sent back and a fresh committee meeting was called for in pursuance of a communication dated 04.08.2021 asking it to fill up the post considering the relaxed experience criteria strictly in accordance with merit. On reconsideration, the name of the petitioner was dropped and that of three other new incumbents namely Shri. K.S. Solanki, Shri. N.V. Patel and Shri C.C. Shah were included by dropping the names of Mr. R.S. Brahmbhatt, the petitioner and Smt. T.B. Bhavsar. Justification of dropping the names of the petitioner was that the eventual shortlisting was done on the basis of merit secured out of 100 (60-ACR and 40- oral interview).

6.2 What is therefore evident from the above conjoint reading of the minutes and the communications of 2018 and 2021, March and August 2021 respectively is that in the first two instances the name of the petitioner unequivocally found place which was however dropped in a subsequent committee meeting held on 05.08.2021 based on the assessment on merit. In short, the defence of the respondents is that though the Rule provides for seniority be given due consideration weightage has to be given to merit and assessment thereon for considering the case of the incumbents for promotion to the post of Deputy Registrar. Justifying the merit, on the basis of the list produced of the 15 candidates, it is the case of the respondents that in the overall assessment the petitioner secured 48.86 marks whereas the selected candidates – respondents no. 3 to 7 secured higher percentage of above those of the petitioner and therefore they were so promoted.

6.3 In the opinion of this court, therefore, what is required is the interpretation of the rules which is to be considered for promotion to the post of Deputy Registrar. Reading Rule 27 would indicate that where an appointment to any post is to be made by promotion, no employee shall be entitled to such promotion on the ground of seniority alone. The case of the respondent therefore that merely because the petitioner was senior that alone would not entitle the petitioner for being granted or considered for promotion because unless in addition to seniority if the employee appointed is found to be fit for promotion only then he can be so considered. The rule further states that the incumbent must have passed the departmental examinations. Thereafter it states that the promotion also has to be as per Schedule B. Nowhere in the rule it is stated that seniority has to be ignored. In addition to seniority, merit has to be considered as per Schedule B. Reliance is placed on Schedule B which provides for assessment in accordance with merit on the basis of interview. This means that the promotion of the incumbent has to be looked from the angle of seniority-cum-merit which means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority. It will be relevant to reproduce the table that the learned counsel for the petitioner has set out in the petition at page 14 with the marks that the incumbents got in the reconsidered committee of 05.08.2021.

Sr.

No.

Sr. No. in the gradation list

Name

Educational Qualification

Date of initial appointment as Bench Clerk

Experience in months (till the date of

interview)

1.

2

Shri G.R.Modi

L&H B.com, IIIrd LL.B CCC+

01.04.2012

105

2.

3

Shri K.S.Solanki

L&H CCC

01.07.2012

103

3.

4

Shri N.V.Patel

L&H CCC+

01.05.2013

93

4.

9

Smt. S.D. Mehta

L&H B.com Lib Science

15.02.2014

84

5.

12

Smt. S.K. Bhagtani

L&H B.A. LL.B. (Spl.) CCC & CCC+

01.08.2014

78

6.

15

Smt. C.C. Shah

L&H CCC & CCC+

01.12.2014

74

The question is whether overlooking of the petitioner’s seniority in the gradation list should be considered as valid and proper. What is evident from the communication of 15/18.03.2018 of the Principal Judge, City Civil Court that emphasis was laid on the fact that the petitioner figured in the list not only he was senior but he had a degree in law. Even the circular of 01.05.2018 indicates that while selecting a candidate for promotion preferential qualification if prescribed in the Rules must be given due consideration. The petitioner therefore not only was higher in seniority but had a qualification which would certainly give an edge in his consideration for promotion to the post. In the opinion of this court, even if the minutes of the meeting dated 12.03.2021 which recommended the case of the petitioner gave due and correct reflection to the rule position in context of seniority-cum-merit which is the rule if read in the right context, the committee categorically observed that in recommending the five candidates including the petitioner it took into consideration the fact that though the petitioner had secured less marks in oral interview, in terms of inter-se seniority he was already working on the post of Deputy Registrar and had a degree in law. Moreover, he had also completed the mandatory period of work in the feeder cadre as prescribed in the Rules. The committee further observed that considering the fact that post of Deputy Registrars were lying vacant in the establishment since a very long time though it was absolutely fit and proper to invoke the provision contained in Rule 27 of the Rules, while considering the eligibility of the candidates found fit for being recommended for promotion in question, on overall consideration the name of the petitioner was rightly recommended.

In the opinion of this court when Rule 27 of the Rules is read, the emphasis on the word ‘seniority alone’ as the respondents would want us to read would not mean that the concept of seniority is given a go-by. What the rule envisages is that while considering the cases for promotion and while assessing merits of the candidates, in addition to seniority merit also has to be given weightage. The rule has to be read in context of the principle of seniority-cum-merit and not that of merit-cum-seniority. Where a promotion has to be given on the basis of seniority-cum-merit, though such promotion is not granted automatically on the basis of seniority alone, and a parallel consideration is merit of the candidate and the eligible candidates must be subject to process of assessment to determine whether an individual in fact possesses the specified minimum qualification and it must take into account his period of service, educational qualification and performance, seniority cannot be given a go-by. In the principle of seniority-cum-merit there is great emphasis upon seniority even though it may not be a deciding factor.

In the facts on hand what is evident is that not only did the name of the petitioner figure on the gradation list at Sr. No. 2 and therefore was recommended back to back by the committees twice in the year 2018 and 2021 after the interviews on 05.02.2021 and 06.02.2021 as he was the only candidate who not only completed the requisite period of eight years but had a preferable qualification in law, he was senior too. In the assessment of merit, though the petitioner would have found his marks lower than that of respondents no. 3 to 7, in the assessment based on the circular dated 01.05.2018, his seniority could not have been overlooked, as was rightly recommended in the minutes of the meeting of the DPC of 12.05.2021. It is not the case of the respondents that the petitioner failed in merit or that he is not fit for promotion apart from seniority. Trite it is that even if a promotion is to be made on the basis of seniority-cum-merit, a person who is lower in seniority can in fact be promoted ignoring the claim of the senior person, who failed to achieve the benchmark i.e. the minimum requisite merit. It is not the case of the respondents here that the petitioner failed to achieve the minimum benchmark on merit.

It is not open for the respondents to contend that what was asked for was a fresh proposal, that it was sent back for reconsideration in accordance with the relaxed criteria by a communication dated 04.08.2021. What is also evident therefore is that after the High Court sent back for a fresh proposal in the year 2018, 3 precious years of the petitioner were lost when his case was again recommended by the committee meeting of 12.03.2021 and when it was sent it was returned on 04.08.2021 and promptly within a day, a DPC met and overturned the proposal on the basis of reconsidering the case on the basis of merit and relaxed criteria admittedly when the petitioner in consonance with the rule position was available at that point of time, albeit, merit was not in his favour at that point of time, however, with due concept of the language of the rule seniority was in his favour and he ought to have been considered.

Even on the assessment of merit, the adjudication of the respondents appears to be flawed as demonstrated by the learned counsel for the petitioner inasmuch as one Mr. Shaikh though he was not promoted was given a merit higher than the petitioner by giving him 38.4% though a departmental proceeding was pending against him whereas the petitioner was awarded 38.20%. Be that as it may. The true interpretation of the rule would indicate that the competent authority by virtue of the circular dated 01.05.2018 could lay down a criteria for comparative assessment of merit of an employee for consideration of promotion on the basis of performance and service record, however, considering for the purposes of promotion when the criterion is seniority-cum-merit as is so evident from reading the present rule, seniority could not be given a go-by as is done in the case on hand.

Accordingly, the order dated 11.08.2021 to the extent it ignores the case of the petitioner for promotion to the post of Deputy Registrar at the City Civil and Session Court, Ahmedabad is quashed and set aside. The petitioner is to be considered for promotion to the post of Deputy Registrar in consonance with the seniority and the respondents are directed to consider the case of the petitioner for promotion to the post of Deputy Registrar based on the recommendation made by the committee on 12.03.2021 and treat the petitioner as so promoted to the post of Deputy Registrar with effect from the date the employees whose names have been included in the order dated 11.08.2021. In the alternative, the respondents are directed to promote the petitioner on the post of Deputy Registrar without disturbing the employees whose names figure in the order dated 11.08.2021. Consequential relief of promotion and pay revision and pension benefits be paid to the petitioner along with arrears within six weeks from the date of receipt of the order. With the aforesaid, petition is allowed. Rule is made absolute.