SC says merit won’t be compromised in distt judiciary promotions

A five-judge Constitution bench headed by Chief Justice of India (CJI) Bhushan R Gavai closed the arguments after hearing a battery of senior lawyers on a crucial issue of creating uniform opportunity for civil judges’ promotion as district judges and become eligible for appointment to constitutional courts.

The court took note of the situation that in most of the states, principal district judges and district judges get directly recruited in the higher judicial service, while judicial officers recruited as civil judge often do not reach the level of principal district judge, resulting in bright young lawyers being dissuaded from joining the service.

“What is proposed here is not of guaranteed promotion. If they are not meritorious, they will never be considered,” the bench, also comprising justices Surya Kant, Vikram Nath, K Vinod Chandran and Joymalya Bagchi, said.

The top court further said that any decision to address the anomaly in representation of promotee judges vis-a-vis direct recruits in appointment to district judge cadre will be guided by the larger interest of promoting efficiency in judiciary.

“We are looking at this matter keeping in mind the larger interest of improving (the) efficiency of (the) judiciary. We are not treating this case as a service dispute between promotee and direct recruit judges. Rather, we are thinking about what is the best system for improving the efficiency of justice. It is a question of trial and error,” the bench said.

Concerned over the slow and uneven career progression of entry-level judicial officers across the country, the top court on October 7 agreed to refer the matter to the Constitution bench and a week later it framed a question for consideration — “What should be the criteria for determining seniority in the cadre of higher judicial service?”

The issue came up while considering a petition by All India Judges Association that dealt with improving service conditions of district judiciary. The court had appointed senior advocate Siddharth Bhatnagar as amicus curiae to assist it on the matter.

Bhatnagar pointed out that promotions across most states were driven more by seniority than by merit, and suggested a mechanism to have a 50-50 allocation for “promotee” judges and “direct recruit” judges in the zone of consideration for appointment as district judges.

He also proposed that considering the vast experience, combined with the relatively later entry into the district judges’ cadre, the promotee judges should be either provided weightage in terms of years of service or a parallel stream of such officers should be considered in terms of seniority for elevation to high courts.

The suggestion was opposed by senior advocates PS Patwalia, representing the Delhi high court, Jaideep Gupta for West Bengal government, as well as Jayant Bhushan, Gopal Sankaranarayanan and Rajeev Shakdar, who were representing direct recruit judges.

Bhushan said the suggestion amounts to introduction of a quota in promotions which has been frowned upon by a nine-judge bench in the Indira Sawhney (1992). The bench on Tuesday said the 1992 judgment cannot be applicable to this case as the reservation proposed by the amicus was not similar to SC/ST reservation in promotions which is governed by Article 16(4A) of the Constitution.

“The amicus is not saying that regardless of merit, promotion will be guaranteed. In SC/ST promotion, if reservation is brought at every level, there will be no incentive for them to work,” CJI Gavai said, with the bench adding that the amicus’ suggestion was not even to have a “fixed” quota. “I do not think that is what is proposed as a person thoroughly incompetent will also be promoted merely because he is senior,” the bench said.

Opposing the amicus’ suggestion, Sankaranarayanan pointed out that there was no data to suggest whether the larger presence of direct recruit judges or promotee judges has caused any problem. “If a principle is to be laid down, there should be data or some material on which we come to the conclusion that there is a problem if we don’t have enough promotee judges at the top level,” the senior lawyer argued.

Earlier, the Allahabad high court had argued that the top court must adopt a “hands off” approach in the matter as the Constitution vests the power of superintendence over district courts to high courts.