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Sujata Kohli vs Registrar General, High Court Of … on 21 August, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 23.11.2017
% Judgment pronounced on: 21.08.2018

+ W.P.(C) 3157/2015
SUJATA KOHLI ….. Petitioner

Through: Mr. Sanjay Jain, Adv. along with
petitioner-in-person.

versus

REGISTRAR GENERAL, HIGH COURT OF DELHI ORS
….. Respondents

Through: Mr. Sanjoy Ghose with Mr. Rhishabh
Jetley Mr. Dhanjai Rana, Advs. for Delhi High
Court.
Mr. Anuj Aggarwal, ASC, GNCTD with
Ms. Deboshree Mukherjee, Adv. for R-2.

CORAM:
HON’BLE MR. JUSTICE S. RAVINDRA BHAT
HON’BLE MR. JUSTICE SUNIL GAUR

JUDGMENT

S.RAVINDRA BHAT, J.

1. The petitioner, a senior Delhi Higher Judicial service (“DHJS”)
officer, has preferred these proceedings under Article 226 of the

WP(C) No.3157/2015 Page 1
Constitution, complaining violation of her fundamental right to equality
before law by the adoption of a resolution by the Full Court of the Delhi
High Court on 28.4.2009 evolving a new criteria for appointment to the
position of District and Sessions Judge. The resolution (hereafter “the
impugned resolution”) requires every eligible officer to have been graded ‘A’
grade in the annual confidential reports (ACRs) for the previous five years,
as on the date when the consideration for filling the post is to take place. The
Delhi High Court has been arrayed as respondent (hereafter referred to as
“the establishment”). The Full Court resolution was modified twice: on
15.1.2010 and again on 27.1.2011. The petitioner also challenges the
constitutional validity of Rule 27 of the Delhi Higher Judicial Service Rules,
1970 (the “Rules) as amended to date, which is a residuary provision
enabling resort to the service rules applicable to the Indian Administrative
Service in respect of whatever is not provided for in the Rules, and in the
light of that the Full Court Resolutions impugned in this case.

2. The Petitioner joined Delhi Higher Judicial Services upon selection
based on written examination and interview on 27th November 2002. She
was ranked third in the merit list. With resignation of the candidate who
stood second in the said merit list, she was ranked second in her batch. On
19th December 2005, the High Court confirmed the petitioners‟ appointment
in substantive permanent capacity w.e.f. 25.11.2004. The petitioner urges
that in 2009, the impugned Full Court resolution was adopted which
mandated that a member of DHJS, to be considered for the post of District
and Sessions Judge ought to possess at least 2A gradings in her ACRs and 3
B+ gradings, for the immediately preceding 5 years, in relation to the year

WP(C) No.3157/2015 Page 2
under consideration, following the criteria provided for posts equivalent to
that of a District Judge in the Indian Administrative Service under the
Residuary Rule 27 of the Delhi Higher Judicial Service Rules 1970. It is
stated that in 2010, the system was again changed and the requirement, of an
A in each of the previous 5 years was adopted, following the, revised criteria
in the IAS service for promotion to a post equivalent to that of a District and
Sessions Judge, thus adversely affecting the progression prospects of many
Additional District Judges and now it had affected the petitioner too, who
had otherwise been already granted the super time scale.

3. The Petitioner had been assessed “B+” (Good) in her ACRs for last
several years. She submits that on 24 August 2013, High Court granted the
Super time scale to the petitioner amongst other officers, w.e.f. 01.05.2013,
(against one of the deputation vacancies). Later on the same was made
against ex cadre vacancy. Between May 2011 and January 2014, the
Petitioner was assigned the cases under Hindu Marriage Act and other
matrimonial matters. During the course that tenure, she disposed of 2589
matters, out of which she with her initiative reconciled and settled as many
as 478 disputes amicably. It is stated that in November 2014, the batch of
2002 DHJS officers entered the zone of consideration for appointment
/selection as District and Sessions Judge/Principal Judge Family Court. The
petitioner was second in her batch and is an honest and hard working officer
was expecting to be appointed/selected. She was appreciated for her
dedication and hard work during the interaction sessions held for ACR
appraisals. Petitioner’s judicial work done and the disposals speak for
themselves. In this background, she urges that in November 2014, it came

WP(C) No.3157/2015 Page 3
to her knowledge that the impugned revised criteria of securing ‘A’ grade in
the last 5 ACRs had been evolved as a pre-requisite for selection as District
Judge. She alleges that she was in the dark about this development, as it was
never communicated to her by any office letter or circular, or notification. It
is alleged that that from time to time the criteria was even diluted or made
stringent from time to time unilaterally and arbitrarily. The petitioner
submits that such criterion has not been adopted by any other state. Even in
Delhi, prior to 2009 there was no such criterion and many District Judges
were appointed who were having only B+ or B. It is submitted that the
petitioner was eagerly expecting her appointment/selection as District
Sessions Judge or Principal Judge Family Court but was taken aback to learn
about the criterion and in anticipation and anxiety, she immediately
represented to the Chief Justice and Companion Judges of the High Court on
12.11.20014 seeking reconsideration and review the criterion of ‘A’ or 5 ‘As’
for promotion. She was not made aware of the outcome of her representation
before she filed the writ petition.

4. In the meanwhile, in January 2015, four names (which was increased
to five) of her colleagues, who were junior to her in the merit list (at the time
of initial appointment) were recommended for the posts of Principal Judge
Family Judge which is equivalent to the post of District Judge. At that stage
too, the petitioner represented to the Chief Justice with respect to the
pendency of her representation and to request to consider and decide it, and
in the interregnum, to keep the appointment to the said posts on hold. While
so, on 15 January, 2015, the Lt. Governor, with concurrence of the High
Court, appointed five Judicial Officers as Principal Judges Family Courts,

WP(C) No.3157/2015 Page 4
out of whom, four officers were junior to the petitioner in the seniority list
since the beginning. The petitioner alleges that going by the recent trends of
appointments to the posts of Principal Judge, Family Courts and thereafter,
the follow up appointment to the post of District Judge in a sequence and
using the criterion of grades, if any, the High Court has given a color of
promotion to both the posts making it appear as if the posts of Principal
Judge, Family Court is promotion by one step in hierarchy for an Additional
District Judge(ADJ) and the post of District Judge is a promotion by two
steps in the hierarchy above the ADJ. Again on 22 January, 2015, another
Judicial Officer junior to the petitioner was appointed as Principal Judge,
Family Court. It is stated that the High Court while recommending the
names of the officers to the Post of Principal Judge, Family Courts gave a go
by to the selection criterion laid down specifically in the Section 4 of the
Family Courts Act 1984 and completely ignored the petitioner and her
representation.

5. Ms. Kohli, the petitioner argues that prescribing different criteria not
communicated to the concerned officer, has seriously jeopardized the
promotion prospects in the Higher Judicial services. Moreover, she alleges
that the High Court has not given due weightage to the seniority which was
a criterion at the time the Petitioner was appointed/selected to the cadre of
District Judge. The impugned Full Court resolutions seriously undermine the
legitimate expectations of a Judicial Officer for vertical mobility. It is urged,
besides that the impugned resolutions violate Article 16 of the Constitution
of India in as much as it is opposed to the reasonable expectations for
selection and appointment as District Judge, in terms of the existing Rules.

WP(C) No.3157/2015 Page 5

6. The petitioner urges that the process adopted for selection and
appointment, based on five A gradings is opaque and lacks transparency. It
is submitted that applying the same criteria to Judges as are applicable to
the Indian Administrative Service violates the letter and spirit of the
judgment of the Supreme Court in All India Judges Association v. Union of
India (1993) 4 SCC 288, whereby it was held that there cannot be any parity
between the judges and the administrative executive. It was held that:

“[t]he Judges at whatever level they may be, represent the State and
its authority unlike the administrative executive or the members of the
other services. The members of the other services, therefore, cannot
be placed on a par with the members of the judiciary, either
constitutionally or functionally”.

The petitioner argues that even otherwise, it is necessary that Rules are
framed in respect of selection of District Judges from among Additional
District Judges so that members of the Delhi Higher Judicial Service may
have some certainty about the basis and criteria for selection of District
Judges which directly concerns their prospects of advancement and their
consideration for elevation to the High Court. This is particularly important
because Article 236 of the Constitution recognizes that the term “District
Judge” includes Additional District Judges.

7. Ms.Kohli argues furthermore, that under Rule 18, the highest pay
scale of Super Time Scale for District Judges is limited to 10% of the cadre
strength with at least 3 years in selection grade and the assessment is based
on merit-cum-seniority. It is therefore, argued that Additional District
Judges who have achieved the highest Super Time Scale pay grade, based on
merit-cum-seniority are not fundamentally different from District Judges in

WP(C) No.3157/2015 Page 6
terms of their functions. When the petitioner and others similarly situated
entered the Cadre of District Judge in 2002 appointment/selection to the post
of District Judge was based on selection from among the 5 senior most
Additional District Judges on the basis of voting by the High Court in Full
Court. However, over the last few years the High Court continuously altered
the criteria for promotion to the post of District and Sessions Judge based on
Full Court resolutions by resort to Rule 27, which are not communicated to
the Additional District Judges. It is urged that the system overall has had a
seriously demoralizing effect on the members of the Higher Judicial Service
as they are no longer in a position to know or to adjust themselves in a
manner that allows them to determine their future. In this context, it is
stated that while the overall ACR grading is communicated the point wise
grading is not made known to the judicial officers concerned. This hinders
the ability of a judge to appreciate her weak points or to effectively appeal
against an unfair grading. In any case, there is no formal system of appeal.
Even the applicability of IAS cadre is not strictly followed, because in the
civil services the ACR is written by the reporting officer, with a reviewing
officer above the reporting officer who either confirms, or rejects or
modifies the report of the reporting officer, giving reasons for variance of
his views. A Judicial Officer on the other hand, who feels aggrieved can
only represent before the same committee that grades her in the first place
and which can reject the representation summarily without providing any
substantive reasons.

8. The petitioner points out that from 2002 to 2009 appointment to the
post of District and Sessions Judge used to be in Seniority in the ordinary

WP(C) No.3157/2015 Page 7
course except if there is any adverse entry. Since 2009 it was abruptly
changed and the impugned criteria was adopted without any rationale. For
the post of the Principle Judge Family Court also the same new criteria was
adopted, thus treating it as a promotion even though denying the same to be
a promotion. By adopting this kind of criteria, two more steps in the
hierarchy have been created, whereas till 2009, it was not so, in as much as,
even Additional District Judges used to be elevated as High Court Judges,
without it being necessary for them, to first being appointed as Principal
Judge Family Courts, and then as District and Sessions judge. After adoption
of this new criteria the consistent pattern shows that Additional District
Judges, who are due for any promotion as per seniority, are first appointed
as Principal Judge, Family Court, and thereafter as District and Sessions
Judge and for all of them the impugned criteria is adopted. It is argued that
in case the Principal Judge Family Court is not treated as promotion, but as
selection, the criteria prescribed in section 4 of the Family Courts Act has
not been followed.

9. The petitioner relies on the judgment of the Supreme Court in Devdutt
v Union of India 2008 (8) SCC 725. It is submitted that granting better
grading of A to a set of junior officers and giving lower grading (B+) to
seniors, in the given scenario, amounts to adverse ACR which compels the
High Court to not disclose merely the concerned officer‟s grading, but also
those of her juniors, so that she can have a fair and effective redress, by
pointing out her strengths, which might well have been overlooked by the
appraising authorities.

WP(C) No.3157/2015 Page 8

10. It is highlighted that definite Rules for promotion of the Additional
District judges are to be framed instead of resort to the residuary powers
under Rule 27 of DHJS Rules, currently being used, so as to avoid any
injustice. The petitioner submits that Rule 27, to the extent it lends itself of
such wide discretion, is arbitrary and unprincipled and therefore, cannot be
sustained. It is stated that an honest and dedicated officer has been denied
her due.

11. The High Court establishment, in response to these proceedings,
explains that the Full Court in the meeting held on 28.04.2009 prescribed the
criteria for selection to the post of Sessions Judge and District Judge. Later,
the Full Court, in the meeting held on 15.01.2010, modified the criteria laid
down by it in the meeting held on 28.04.2009. It is stated that
representations of Delhi Judicial Services Association, and Delhi Higher
Judicial Services Association, regarding the criteria for appointment as
District Judge, were received and were duly considered by the Full Court of
in its meeting held on 06.07.2010. It was resolved that a Committee be
constituted by the Chief Justice to look into the issue of desirability of
change of criteria appointment to the post of District Judge. The Chief
Justice, by order dated 27.08.2010, constituted a committee comprising of
four Hon‟ble Judges which by report dated 08.10.2010 recommended that:

“We find that the post of District Judge is to be manned
by officers of Delhi Higher Judicial Service in Super
Time Scale of Rs. 22850-24850 (pre revised). Having
regard to the revised guidelines as circulated vide Govt
of India, DoPT OM No. 22011/3/2007-Estt (D) dated
18.02.2008 wherein it has been mentioned that the DPC

WP(C) No.3157/2015 Page 9
may ensure that for promotion to the scale of Rs 18,400-
22,400 (pre revised) and above, the prescribed
benchmark of ‘Very Good’ is invariably met in all ACRs
of five years under consideration, we are of the opinion
that the existing criteria for appointment to the post of
District Judge requiring ACR gradings for each of the
five years under consideration to be minimum ‘A’ (Very
Good) for all categories, should be maintained.
However, since the criteria of “at/east two ACR gradings
of ‘A’ (Very Good) and remaining three ACR gradings of
‘8+’ (Good)” fixed on 28.04.2009 was changed to “ACR
gradings for each of the five years to be minimum ‘A’
(Very Good)” on 15.01.2010…we are of the opinion that
the implementation of the said criteria should be in a
phased manner as under:

(i) At least two ACR gradings of ‘A’ (Very Good) and
remaining three ACR gradings of ‘8+’ (Good) out of the
ACR gradings for the last 5 years under consideration
(2004-2008) for the year 2009;

(ii) At least three ACR gradings of ‘A’ (Very Good) and
remaining two ACR gradings of ‘8+’ (Good) out of the
ACR gradings for the last 5 years under consideration
(2005-2009) for the year 2010;

(iii) At least three ACR gradings of ‘A’ (Very good) and
remaining two ACR gradings of ‘8+’ (Good) out of the
ACR gradings for the last 5 years under consideration
(2006-2010) for the year 2011; and

(iv) ACR grading for each of the five years to be
minimum „A‟ (Very Good) for the last 5 years under
consideration (2007-2011) for the year 2012 and
onwards.

WP(C) No.3157/2015 Page 10
We recommend that the cases for appointment to the post
of District Judge be considered/reviewed applying the
aforesaid criteria as proposed.”

12. The High Court explains that the Full Court in its meeting held on
27.01.2011 accepted the above report of the Committee. It is stated that the
Petitioner was granted super time scale w.e.f. 01.07.2013. The High Court
produced the relevant records pertaining to the Petitioner for the
convenience of the Court. It submits that the Petitioner represented on
12.11.2014 for reconsideration of the criteria laid down for appointment as
District Judge. The request was duly considered and rejected by the Full
Court in the meeting held on 29.04.2015. The decision was communicated
to the Petitioner by letter dated 13.05.2015.

13. The High Court denies that the criteria for promotion to the post of
District and Sessions Judge adversely affected the progression of many
Additional District Judges as alleged. It is submitted that the High Court can
fix a criteria for appointment to a particular post as it is the best judge to
evaluate the working of a particular officer to the said post. However, it is
submitted that the appointment to the post of Principal Judge, Family Court
does not amount to any promotion.

14. The High Court relies on Har Prasad Gupta v. State of Uttar Pradesh
(AIR 1963 All 415) where it was held that the power of appointment, and
posting and promotion of District Judges vest in the Governor of the State
but such power has to be exercised in consultation with the High Court. The
High Court also relies on the ruling of the Supreme Court in
Chandramouleshwar Prasad v Patna High Court AIR 1970 SC 370 which

WP(C) No.3157/2015 Page 11
spelt out the primacy of the High Court in regard to recommendation of
names of suitable officers for appointment as District Judges in the
following manner:

“The High Court is the body which is intimately familiar
with the efficiency and quality of officers who are fit to
be promoted as District Judges. The High Court alone
knows their merits as also demerits. This does not mean
that the Governor must accept whatever advice is given
by the High Court but the Article does require that the
Governor should obtain from the High Court its views on
the merits or demerits of persons among whom the
choice of promotion is to be limited. If the High Court
recommends A while the Governor is of opinion that B’s
claim is superior to A’s it is incumbent on the Governor
to consult the High Court with regard to its proposal to
appoint B and not A. If the Governor is to appoint B
without getting the views of the High Court about B’s
claim vis-a-vis A’s promotion, B’s appointment cannot be
said to be in compliance with Article 233 of the
Constitution.”

A later judgment in Renuka vs AP Anr (2002) 6 SCC 195 is relied on to
say that the appointment of Family Court Judges cannot be made against the
rules that have been laid down and furthermore no right accrued to a person
merely because a person is selected and his/her name is put on panel and,
therefore, the Petitioners have no right to claim for appointment.
Furthermore, in essence the Petitioner is seeking a judicial intervention in
the domain of administrative discretion failing to meet the threshold
standard of perversity or error apparent on the face or serious infraction of
fundamental rights or patent unreasonableness.

WP(C) No.3157/2015 Page 12

15. The High Court states that the criteria or eligibility condition in
question was evolved objectively and the Petitioner failed to demonstrate
why such criteria are flawed or unreasonable. It is also submitted that there
is no legal requirement for publication of revision of promotional criteria as
held by the Supreme Court. In the instant case, no prejudice has been caused
inasmuch as the Petitioner to be eligible for promotion is not required to
obtain any further qualification or secure any additional achievement which
she could only have had she been apprised of the revision of the criteria (for
example securing a further educational qualification or obtaining of any
training). All that is stipulated in the revision is that the more meritorious
would be given a preference. Surely no employee can be permitted to
contend that she would have worked harder if only she was made aware that
her promotion would be dependent on hard work. It is submitted that all
judicial officers, the petitioner being no exception, are expected to perform
optimally and to the best of their ability and professional competence.
Therefore, complaining against evolution and prescription of a uniform
criteria of A grading for five consecutive years, as a precondition for
selection as District Judge, is meaningless, because as a superintending
body, the High Court cannot be accused of behaving unreasonably when it
chooses to reward merit and hard work, and not mere seniority and just
about average functioning among members of the DHJS.

16. It is submitted that the ACR grading is dependent on a committee-
based approach, to avoid subjectivity: three High Court judges, for the past
decades or so, are supervising the functioning of several judicial officers; the
parameters adopted are units awarded for judicial functioning, quality of

WP(C) No.3157/2015 Page 13
judgments, number of old cases disposed of in a given year, the initiative
and creativity shown by the concerned officer, etc. In case a judicial
officer‟s grading falls below the previous years‟ grading, she is
communicated with the ACRs to enable representation. It is urged, in this
context, that the petitioner‟s grouse that her juniors were graded better than
her grading and stole a march over her for selection as District Judge, is
unmerited. Highlighting that ACR gradings are made known only to the
concerned individual, it is submitted that what the petitioner urges as a
grievance is that she is kept in the dark about others‟ better performance.
That cannot be considered as an adverse remark against her; it is only when
the petitioner‟s grading undergoes adverse change, that the obligation to
communicate the adverse ACR arises.

17. Counsel for the High Court lastly submitted that guidelines and
criteria can and ought to be evolved having regard to the challenges faced by
changing times; it is precisely for this purpose that Rule 27 is a part of the
DHJS rules, providing that for all matters that are not expressly prescribed,
the provisions applicable to members of the Indian Administrative Services
should be adopted. It was submitted that such rules exist for members of the
All India Services, because not all contingencies can be provided for and
that for such purposes, the discretion of the competent authorities is
reserved. Counsel submitted that given these compulsions, Rule 27 does not
vest any arbitrary power. To the extent the impugned resolution created
guidelines for uniform application, to promote greater efficiency, they too
are reasonable and valid.

Analysis and Conclusions

WP(C) No.3157/2015 Page 14

18. The impugned Full Court resolution which required DHJS officers to
fulfill the criteria of having achieved five A gradings in the immediately
preceding five years, from the date of consideration (for selection as District
Judge), reads inter alia, as follows:

2. To consider the matter regarding Discussed. It was resolved as under:

laying down of criteria for
selection of officers to the posts (i) The following shall be adopted as the
of Sessions Judges and District zone of consideration for selection of
Judges officers for the appointment of District
Judges:

(Hon‟ble Judges are requested
No. of vacancies No. of officers
to kindly bring along the papers within zone of
circulated vide Agenda Item No. consideration

1 of Full Court meeting dated 1 5
17.4.2009) 2 8

3 10

4 12

5 14

6 16

7 18

8 20

9 22

In the case of Sessions Judge, the zone of
consideration would be restricted to
officers already appointed as District
Judges including on proforma basis.

(ii) The officers who would be, or are
likely to be, in the zone of consideration
for appointment/ selection to the post of
District Judge in a particular year shall
be under the control of the Committee of
Inspecting Judges headed by Hon’ble the

WP(C) No.3157/2015 Page 15
Chief Justice in the preceding year and in
the year in question.

(iii) For evaluation of such officers, as are
mentioned in the preceding clause,
detailed remarks shall be recorded in the
ACRs by the Committee mentioned above.

(iv) For evaluation of the officers within
the zone of consideration for “selection by
merit”, the following criteria shall be
taken into account:

(a) ACR gradings for the last 5 years in
which the gradings for at least 2 years
(including the 5th year) must be minimum
“A” (Very Good), the officer having
secured in the remaining 3 years not less
than “B+” (Good) grading. However, in
the case of SC/ST officers, this criteria
shall be relaxed so as to require minimum
“B+” (Good) grading in each of the 5
years.

(b) Vigilance report.

(c) Disposal figures for the last 5 years.

(d) Administrative capabilities.

(e) General reputation for honesty
integrity and conduct.

The above criteria was modified by the Full Court resolution dated 15
January, 2010, which recorded that the requirement of having to possess five
gradings in the preceding five years, for selection as District Judges, was
applicable to all categories of Delhi Higher Judicial Officers. On 6 July
2010, a Committee was constituted by the Full Court to look into desirability
of changing or modifying the criteria for selection as District Judges,
because a large number of DHJS officials had expressed the need to review
the criteria. This committee considered the matter again, and reported to the

WP(C) No.3157/2015 Page 16
Full Court on 8 October 2010. This report was accepted by the Full Court,
through its resolution of 27 January 2011. The changed criteria meant that
the requirement of having to possess five A gradings was modified
somewhat, to ensure that serving officers were not made to suffer
immediately through imposition of the new standard. The relevant part of
the judge‟s committee report reads as follows:

“We have considered the matter. We held deliberations
on 13th September also. We find that the Full Court in
the meeting held on 28th April 2009, alia, decided that
for selection to the post of District Judge the officers
were required to have at least two gradings (including
the 5th year) of ‘A’ (Very Good) the remaining three
gradings of not less than ‘B+’ (Good) in the ACR
gradings the last five years under consideration, and in
the case of SC/ST officers this criteria shall be relaxed so
as to require minimum ‘.B+’ (Good;) grading in each of
five years. However, the Full Court vide decision dated
15th January 2010 deleted the clause regarding
relaxation in ACR gradings for SC/ST officers and also
modified the criteria so as to require ACR gradings for
each of the five years under consideration to be
minimum’ A’ (Very Good) for all categories.

We find that the post of District Judge is to be manned by
officers of Delhi Higher Judicial Service in Super Time
Scale of Rs. 22850-24850 (pre-revised). Having regard
to the revised guidelines as circulated vide Govt. of
India, DoPT O.M. No. 2201113/2007-Estt(D) dated 18th
February 2008 wherein it has been mentioned that the
DPC may ensure that for promotion to the scale of
Rs,18,40022,400 (pre-revised) and above, the prescribed
benchmark of ‘Very Good’ is invariably met in all ACRs

WP(C) No.3157/2015 Page 17
of five years under consideration, we are of the opinion
that the existing criteria for appointment to the post of
District Judge requiring ACR gradings for each of the
five years under consideration to be minimum’ A’ (Very
Good) for all categories, should be maintained.

However, since the criteria of “at least two ACR
gradings of ‘A’ (Very Good) and remaining three ACR
gradings of ‘B+’ (Good)” fixed on 28th April, 2009 was
changed to “ACR gradings for each or the five years to
be minimum ‘A’ (Very Good)” on I5th January 2010, we
are of the opinion that the implementation of the said
criteria should be in phased manner as under :

(i) At least two ACR gradings of ‘A’ (Very Good) and
remaining three ACR gradings of ‘B+’ (Good) out of the
ACR gradings for the last 5 years under consideration
(2004-2008) for the year 2009;

(ii) At least three ACR gradings of ‘A’ (Very Good) and
remaining two ACR gradings of ‘B+’ (Good) out of the
ACR gradings for the last 5 years under consideration
(2005-2009) for the year 2010;

(iii) At least four ACR gradings of ‘A’ (Very Good) and
remaining one ACR grading of ‘B+’ (Good) out of the
ACR gradings for the last 5 years under consideration
(2006-20 1 0) for the year 2011; and,

(iv) ACR grading for each of the five years to be
minimum ‘ A’ (Very Good) for the last 5 years under
consideration (2007-2011) for the year 2012 onwards.”

We recommend that the cases for appointment to the post
of District Judge be considered/reviewed applying the
aforesaid criteria as proposed.”

WP(C) No.3157/2015 Page 18

19. The Full Court accepted the above recommendation on 27.01.2011.
Thereafter, a large number of posts of District and Sessions Judges and
Principal Judges, Family courts have been filled by applying the criteria
evolved in that regard (i.e. five A gradings in the five years preceding the
date of consideration, after 01.01.2012). The question therefore, is whether
the petitioner‟s grievances in this regard are justified.

20. A Constitution Bench of the Supreme Court had occasion to deal with
the power of the High Court in the context of the High Court‟s power to
make binding recommendations for appointment of District Judges. The
court emphasized upon the primacy of the High Court‟s power in this
regard, and that rules framed under Article 309 have to also yield to the
exercise of such power, in State of Bihar v Bal Mukund Sah 2000 (4) SCC

640. The Supreme Court stated as follows:

“Article 233 dealing with appointment of District
Judges, on its own express terminology projects a
complete scheme regarding the appointment of persons
to District Judiciary as District Judges. In the present
appeals, we are concerned with direct recruitment to the
cadre of District Judges and hence sub- article (2) of
Article 233 becomes relevant. Apart from laying down
the eligibility criterion for candidates to be appointed
from the Bar as direct District Judges the said provision
is further hedged by the condition that only those
recommended by the High Court for such appointment
could be appointed by the Governor of the State.

Similarly, for recruitment of judicial officers other than
District Judges to the Judicial Service at lower level,
complete scheme is provided by Article 234 wherein the

WP(C) No.3157/2015 Page 19
Governor of the State can make such appointments in
accordance with the rules framed by him after consulting
with the State Public Service Commission and with the
High Court exercising jurisdiction in relation to such
State. So far as the Public Service Commission is
concerned, as seen from Article 320, the procedure for
recruitment to the advertised posts to be followed by it is
earmarked therein. But the role of the Public Service
Commission springs into action after the posts in a cadre
are required to be filled in by direct recruitment and for
that purpose due intimation is given to the Commission
by the State authorities. They have obviously to act in
consultation with the High Court so far as recruitment to
posts in Subordinate Judiciary is concerned. Of course, it
will be for the High Court to decide how many vacancies
in the cadre of District Judges and Subordinate Judges
are required to be filled in by direct recruitment so far as
the District Judiciary is concerned and necessarily only
by direct recruitment so far as Subordinate Judiciary is
concerned. This prime role of the High Court becomes
clearly discernible from Article 235 which deals with the
control of the High Court over the Subordinate Judiciary
and also of Subordinate Courts. The said Article
provides as under:

235. Control over subordinate courts. The control
over district courts and courts subordinate thereto
including the posting and promotion of, and the
grant of leave to, persons belonging to the judicial
service of a State and holding any post inferior to
the post of district judge shall be vested in the
High Court, but nothing in this article shall be
construed as taking away from any such person
any right of appeal which he may have under the

WP(C) No.3157/2015 Page 20
law regulating the conditions of his service or as
authorising the High Court to deal with him
otherwise than in accordance with the conditions
of his service prescribed under such law.

********** ***********
*********

In the light of the Constitutional scheme guaranteeing
independence of Judiciary and separation of powers
between the executive and the judiciary, the
Constitutional makers have taken care to see by enacting
relevant provisions for the recruitment of eligible
persons to discharge judicial functions from grass-root
level of the Judiciary up to the apex level of the District
Judiciary, that rules made by the Governor in
consultation with the High Court in case of recruitment
at grass-root level and the recommendation of the High
Court for appointments at the apex level of the District
Judiciary under Article 233 remain the sole repository of
power to effect such recruitments and appointments. It is
easy to visualise that if suitable and competent
candidates are not recruited at both these levels, the out
turn of the judicial product would not be of that high
level which is expected of judicial officers so as to meet
the expectations of suffering humanity representing class
of litigants who come for redressal of their legal
grievances at the hands of competent, impartial and
objective Judiciary. The Presiding Officer of the Court if
not being fully equipped with legal grounding may not be
able to deliver goods which the litigating public expects
him to deliver. Thus, to ensure the recruitment of the best
available talent both at grass-root level as well as at
apex level of District Judiciary, Articles 233 and 234

WP(C) No.3157/2015 Page 21
have permitted full interaction between the High Court
which is the expert body controlling the District
Judiciary and the Governor who is the appointing
authority and who almost carries out the ministerial
function of appointing recommended candidates both by
the Public Service Commission and the High Court at the
grass-root level and also has to appoint only those
candidates who are recommended by the High Court for
appointment at the apex level of District Judiciary.”

This position had been highlighted earlier in a previous Constitution bench
in Chandramouleshwar Prasad (supra) where it was held as follows:

“The question arises whether the action of the
Government in issuing the notification of October 17,
1968 was in compliance with Article 233 of the
Constitution. No doubt the appointment of a person to be
a District Judge rests with the Governor but he cannot
make the appointment on his own initiative and must do
so in consultation with the High Court. The underlying
idea of the Article is that the Governor should make up
his mind after there has been a deliberation with the
High Court. The High Court is the body which is
intimately familiar with the efficiency and quality of
officers who are fit to be promoted as District Judges.

The High Court alone knows their merits as also
demerits. This does not mean that the Governor must
accept whatever advice is given by the High Court but
the Article does require that the Governor should obtain
from the High Court its views on the merits or demerits
of persons among whom the choice of promotion is to be
limited. If the High Court recommends A while the
Governor is of opinion that B’s claim is superior to A’s it
is incumbent on the Governor to consult the High Court

WP(C) No.3157/2015 Page 22
with regard to its proposal to appoint B and not A. If the
Governor is to appoint B without getting the views of the
High Court about B’s claim vis-a-vis A’s Lo promotion,
B’s appointment cannot be said to be in compliance
with Article 233 of the Constitution. The correspondence
noted above which passed between the High Court and
the Secretariat from 28th September 1968 to 7th October
1968, shows that whereas the High Court had definitely
taken the that Misra as the senior Additional District
Sessions Judge should be directed to take charge from
Chakravarty, the Government was not of the view that
according to the records in its appointment department
Misra was the senior officer at Shahabad among the
Additional District and Sessions Judges. Government
never suggested to the High Court that the petitioner was
senior to Misra or that the petitioner had a better claim
than Misra’s and as such was the person fit to be
appointed temporarily as District and Sessions Judge,
Before the notification of October 17, 1968 Government
never attempted to ascertain the views of the High Court
with regard to the petitioner’s claim to the temporary
appointment or gave the High Court any indication of its
own views with regard thereto excepting recording
dissent about Misra’s being the senior officer in the
cadre of Additional District and Sessions Judges at
Arrah. Consultation with the High Court under Article
233 is not an empty formality. So far as promotion of
officers to the cadre of District Judges is concerned the
High Court is best fitted to adjudge the claims and merits
of persons to be considered for promotion. The Governor
cannot discharge his function under Article 233 if he
makes an appointment of a person without ascertaining
the High Court’s views in regard thereto. It was

WP(C) No.3157/2015 Page 23
strenuously contended on behalf of the State of Bihar the
materials before the Court amply demonstrate that there
had been consultation with the High Court before the
issue of the notification of October 17, 1968. It was said
that the High Court had given the Government its views
in the matter; the Government was posted with all the
facts and there was consultation sufficient for the
purpose of Article 233. We cannot accept this.

Consultation or deliberation is not complete or effective
before the parties thereto make their respective points of
view known to the other or others and discuss and
examine the relative merits of their views. If one party
makes a proposal to the other who has a counter
proposal in his mind which is not communicated to the
proposer the direction to give effect to the counter
proposal without anything more, cannot be said to have
been issued after consultation. In our opinion, the
notification of October 17, 1968 was not in compliance
with Article 233of the Constitution. In the absence of
consultation the validity of the notification of 17th
October, 1968 cannot be sustained.”

21. In the present case, the first issue to be decided is whether the
petitioner‟s grievance about her being kept in the dark about the Full Court
resolution with respect to the requirement of every DHJS officer acquiring A
grading for five years, immediately preceding consideration of names, for
filling the post of District Judge, is justified. Now, it is a matter of record
that prior to the impugned criteria, the Full Court had evolved another
criteria for selecting District Judges (at least two A gradings and three B+
gradings in the preceding five years). This was later changed pursuant to
recommendations of a committee that had recommended (through its report

WP(C) No.3157/2015 Page 24
of 14.12.2009) that any DHJS officer, to be selected and appointed as
District Judge, ought to possess five „A‟ gradings for the preceding five
years. The Full Court accepted those recommendations on 15.01.2010. The
criteria was somewhat changed, pursuant to representations of DHJS
officers, who apparently felt that its abrupt introduction would have adverse
consequences. The amended criteria (adopted on 27.01.2011) is as follows:

“(i) At least two ACR gradings of ‘A’ (Very Good) and
remaining three ACR gradings of ‘B+’ (Good) out of the
ACR gradings for the last 5 years under consideration
(2004-2008) for the year 2009;

(ii) At least three ACR gradings of ‘A’ (Very Good) and
remaining two ACR gradings of ‘B+’ (Good) out of the
ACR gradings for the last 5 years under consideration
(2005-2009) for the year 2010;

(iii) At least four ACR gradings of ‘A’ (Very Good) and
remaining one

ACR grading of ‘B+’ (Good) out of the ACR gradings for
the last 5 years under consideration (2006-20 1 0) for the
year 2011; and,

(iv) ACR grading for each of the five years to be
minimum ‘ A’ (Very Good) for the last 5 years under
consideration (2007-2011) for the year 2012 onwards.”

22. The petitioner‟s grievance with respect to her lack of knowledge or
not being aware of the criteria to be fulfilled by incumbent DHJS officers,
in the opinion of this court, is not justified. Before 2008-09 there was no
criteria, which meant that the High Court more or less had the absolute
discretion to select and appoint anyone, on the basis of seniority, or merit.

WP(C) No.3157/2015 Page 25
This “no norm” period was sought to be rectified by structuring the
discretion, and insisting that the concerned officers ought to score certain
threshold gradings in their ACRs to be eligible for consideration. Such
administrative criteria, per se cannot be characterized as arbitrary, given the
prevailing “no norm” or “no rule” period. Though not a matter of record, it
is a fact that around that time, the existing one District court‟s territorial
jurisdiction for the whole of Delhi was re-organized; nine District Courts
were created, with resultant distribution of jurisdiction. That has now been
further re-organized. The consequent need to fill nine posts was felt. The
committee, which reported to the Full Court on 14.12.2009, took into
account the identity of pay scales of District Judges and equivalent grade All
India Service (IAS) officers and felt that since the former had to cross a
threshold bar of five “Very good” ACR gradings for five years, preceding
the date of consideration (for higher positions), a similar approach could be
adopted. As was highlighted by Chandramouleshwar Prasad “the High
Court is the body which is intimately familiar with the efficiency and quality
of officers who are fit to be promoted as District Judges. The High Court
alone knows their merits as also demerits.” Likewise, Bal Mukund Shah
(supra) emphasized the same theme:

“..rules made by the Governor in consultation with the
High Court in case of recruitment at grass-root level and
the recommendation of the High Court for appointments
at the apex level of the District Judiciary under Article
233 remain the sole repository of power to effect such
recruitments and appointments. It is easy to visualise that
if suitable and competent candidates are not recruited at
both these levels, the out turn of the judicial product

WP(C) No.3157/2015 Page 26
would not be of that high level which is expected of
judicial officers so as to meet the expectations of
suffering humanity representing class of litigants who
come for redressal of their legal grievances at the hands
of competent, impartial and objective Judiciary.”

23. Having regard to these imperatives, the petitioner‟s grievance that no
norm should have been evolved and implemented without prior notice, is
insubstantial. A judicial officer – like any other public employee or official
joins the service, hoping to make a difference, in terms of dealing with the
workload, quality of output (i.e. the judgments delivered) and also the cases
assigned to her. In a sense, service in the judicial department (though a
public service) is a mission, given the solemn nature of judging. If this is the
assumption on which every judge, at every level is appointed to the judicial
system, the argument that if one is made aware that a higher threshold of
performance is expected, she or he would work better (or have worked
better) cannot be countenanced. All judges – District Judges being no
exception – are expected to perform at their optimum levels, given the
exploding dockets, which they have to handle. The primary role of anyone,
when appointed as a judge is to perform as a judge, to the best of her ability
and competence. An incumbent cannot be heard to say that her judicial
work was not up to the mark, because she was involved in some other duties
or more importantly, she was not aware that best performance would result
in selection as District Judge. Every functionary- including judges shoulder
those extra duties to varying degrees, at different points of time. Nor do
those duties define the role of any incumbent in a judicial service or system.
If seen from this perspective, the work performed by every judicial officer is

WP(C) No.3157/2015 Page 27
what is graded in the ACR. Therefore, to say that had any incumbent known
that the highest or a better grading is essential she or he would have
performed better is no grievance. The performance of every judge is
expected to be her or his best, or what she or he was capable of, for the
relevant period. Therefore, the nuancing of discretion (to appoint) from an
absolute one, to one based on performance and merit, of DHJS officers, is
neither arbitrary nor unreasonable. One more reason to reject the petitioner‟s
argument in this regard is that the review which took place through the Full
Court resolution of 27 January 2011, was due to representation of DHJS
officers that introduction of the five ACR norm was abrupt. Therefore, there
was a general awareness of this criteria, (put in place through the earlier
resolution of 15-01-2010) which led to some disquiet and representation.
The criteria which now stands challenged was therefore evolved as a
measure to relax the rigors of their immediate application. It has been
applied in the case of many instances of appointment; some of those
appointees have since even retired; some were appointed as judges of this
court. Even from that position, some appointees have retired. Therefore, it is
too late in the day to say that the criteria should be set aside on the narrow
ground that it was not made known. As members of a judicial cadre, all
officers were aware of its existence. This ground therefore, is rejected.

24. The petitioner‟s second grievance is about the absence of any
information that her juniors secured better ACR gradings. It was argued,
here, that had the petitioner been made aware of her ACR gradings as well
as those of her juniors and further informed the limitations and
shortcomings, firstly she would have been able to correct herself and

WP(C) No.3157/2015 Page 28
secondly ensure that her performance was suitably geared up to match that
of other officers. Now, the system of ACR gradings, based on performance
and evaluation of public officials is patterned on individual assessments. The
law declared by the Supreme Court in Devdutt (supra) and the later
judgment in Abhijit Ghosh Dastidar v Union of India Ors (2009) 16 SCC
146 is that every ACR grading, which is likely to affect the career prospects
of an officer or employee, should be communicated. Devdutt stated that:

“14. In our opinion, every entry (and not merely a poor
or adverse entry) relating to an employee under the State
or an instrumentality of the State, whether in civil,
judicial, police or other service (except the military) must
be communicated to him, within a reasonable period,
and it makes no difference whether there is a bench mark
or not. Even if there is no bench mark, non-
communication of an entry may adversely affect the
employee’s chances of promotion (or getting some other
benefit), because when comparative merit is being
considered for promotion (or some other benefit) a
person having a `good’ or `average’ or `fair’ entry
certainly has less chances of being selected than a
person having a `very good’ or `outstanding’ entry.

15. In most services there is a gradation of entries, which
is usually as follows:

(i) Outstanding (ii) Very Good (iii) Good (iv) Average

(v) Fair (vi) Poor

A person getting any of the entries at items (ii) to (vi)
should be communicated the entry so that he has an
opportunity of making a representation praying for its
upgradation, and such a representation must be decided

WP(C) No.3157/2015 Page 29
fairly and within a reasonable period by the concerned
authority.

16. If we hold that only `poor’ entry is to be
communicated, the consequences may be that persons
getting `fair’, `average’, `good’ or `very good’ entries will
not be able to represent for its upgradation, and this may
subsequently adversely affect their chances of promotion
(or get some other benefit).”

The petitioner‟s grievance however, is that the better or higher gradings
given to her colleagues, particularly those junior to her were not known and
that she could not articulate her objections to better her gradings, at the
relevant time. This court is of the opinion that the method of appraisal of
judicial officers is such that gradings given to each individual are treated as
confidential. In such a system, it would not be permissible to publicize the
gradings of all judicial officers, so that each one has information or
knowledge of not only what she is graded, but also what others are graded.
This grievance is therefore held to be without substance.

25. The above observations would have been dispositive of the writ
petition. However, there is a salient and important aspect relating to the
manner of grading judicial officers, which stood out during the proceedings.
As at present, judicial officers‟ work and performance is supervised and
graded by judges committees (comprising of three High Court judges). Each
committee is assigned about 25-30 judicial officers. The gradings – based on
appraisal of disposal figures and consideration of judgments of the
concerned judges, are then considered by the Full Court. The Full Court can
endorse or modify the gradings proposed by the committees. This system is

WP(C) No.3157/2015 Page 30
designed to eliminate any form of bias or partisanship and is based on the
theory that one individual High Court judge should decide the career or fate
of any given judicial officer. This system, though merited, has one
drawback. There is no uniform set of rules or guidelines that all appraisal
committees have to follow. Thus, each committee proceeds to evolve, based
on bona fide understanding of what is essential, its own criteria and grades
individual officers.

26. A method of career review, including one that administers judicial
officers, should be geared to effectively evaluate the officers‟ performance.
The risk of adopting ad hoc criteria is that there would be vast variations in
the grading of officers- given that there are a multitude of judges in different
appraisal committees. Some may place emphasis only on disposals; others
may emphasize and grade officers, based on the “unit” criteria applicable for
evaluation. Others may take units or disposals into account, and also lay
considerable emphasis on the quality of judgments of the official, whereas
some committees may consider, in addition to these, whether the judicial
officer displayed any initiative or availed of excessive leave without
justification.

27. Appraisal and recording of ACRs largely based on the “unit-based
system” is not exactly the best method as it often overlooks the asymmetries
of roster pressures and subject matter uniqueness of each jurisdiction. Those
with crushing or very heavy work load (with heavy filing as in the case of
Magistrates) may fare poorly in comparison with those assigned medium to
lighter workloads. On the other end of the spectrum, those with special
jurisdictions with unique problems, like in the case of CBI courts, where

WP(C) No.3157/2015 Page 31
Judges are dependent on the competencies of Public Prosecutors, the
Agency and ability to produce witnesses according to schedule, might
actually be unable to measure up to the unit requirements. The endeavor of
every authority recording ACRs of judicial officers should be to mark the
performance for visible achievements. The advantage here is that there is
transparency in the methodology and some consistency; undue emphasis is
not placed on units – at the same time not undermining it. The Central
Government, through the Department of Personnel and Training had, in
2009 (by OM 21011/2/2009-Estt.(A) 16/02/2009 and OM of 14.05.2009)
introduced the APAR (Annual Performance Appraisal Report) system which
requires that “Numerical grading had to be awarded by reporting and
reviewing authorities for quality of work output, personal attributes and
functional competence of the officers reported upon. Those should on a
scale of 1-10, where 1 refers to the lowest grade and 10 to the highest”. The
annexures to the guidelines give out the details: the OM states that the 1-10
grading would be based on 40% weightage of output assessment and 30%
each for personal attributes and functional competency. The guidelines
further that grading of 8-10 is outstanding, and will be awarded 9; between
6 and short of 8 will be treated “very good” and awarded 7; those between
4 to 6 are “good” and awarded over all 5; and those below 4 would be
awarded 0. While this kind of assessment cannot be adopted per se,
nevertheless some important performance indicators (key performance
indicators “KIP”) need to be factored by making a full assessment of ACRs
of judicial officers.

WP(C) No.3157/2015 Page 32

28. This court is of opinion that to inject greater uniformity, objectivity
and also some measure of transparency as well as predictability in ACR
grading, the following should be kept in mind by the appraisal evaluation
authorities:

(1) (i) The concerned judicial officer should be
award of marks/points for a maximum of 100.

(ii) The 100 marks to be awarded shall be
divided as follows:

(a) 20% shall be earmarked for quality of
judgments (with sub-heads, if possible for
clarity, analytical skills, and application of
law etc). For appraisal of judgments, the
committee/appraising judge should call for
all the judgments in contested cases, and,
depending on the jurisdiction or
jurisdictions exercised by the judicial
officer, select 5 randomly – having as great
a spread, according to the period (i.e. in the
one-year period) and jurisdictions as
possible. Copies of such five judgments
should be considered. The relevant attributes
for consideration should be clarity, grasp of
legal principles and their application.

(b) A maximum of 25% may be awarded for the
institution/disposal ratio. Of this, 10 marks
should be for quantum of achievement (i.e.
whether disposals were greater than
institutions, in a given year) and 15
maximum marks for the units achieved for
the relevant period.

(c) A maximum of 20% may be awarded for the
total number of final judgments delivered in
contested matters. Such a benchmark would

WP(C) No.3157/2015 Page 33
interrogate and reveal in real terms the
qualitative disposals, rather than relying on
the achievement of statistical targets by
judicial officer.

(d) Every judicial officer claiming disposal
targets, based on a maximum of 10% may
be awarded for timeliness, promptness in
delivery of judgments, disposal of old cases,
not taking leave or clubbing leave with
vacations, etc. (depending on the propensity
or tendency of judicial officers to do so).

(e) The balance 25% may be awarded by the
appraising High Court judge/Committee on
the basis of interaction/ inspection.
(2) Some allowance may be given wherever the
judicial officer is assigned burdensome administrative
tasks, such as membership of committees, co-ordination
for events, conducting disciplinary enquiries if any of
staff, etc. Likewise, where there are peculiarities of
jurisdiction, such as where the judicial officer handles
CBI courts, or other jurisdictions which have their
special characteristics, separate criteria needs to be
devised.

(3) No officer should ordinarily be subject to appraisal
of any one judge or committee for more than two
consecutive years. This would eliminate unconscious
biases in favour and against the officers.

(4) Instructions may be also issued requesting all
appraising judges/ committees to forward instances of
outstanding judgments and extremely poor judgments of
any given judicial officer, which they may come across
in their normal judicial functioning to the High Court
registry, with further instructions that such judgments
may be placed before the concerned inspecting High

WP(C) No.3157/2015 Page 34
Court judge/committee for due consideration and input
for the ACR appraisal of that judicial officer.

29. In view of the above discussion, the court holds that the Full Court
resolutions of 28.4.2009 (modified on 15.01. 2010) and the later resolution
27.01.2011, inasmuch as they prescribe that for appointment to the post of
District Judge, the concerned judicial officer should have been graded A in
the preceding five years, is not arbitrary; the challenge to Rule 27 too has to
fail. The petitioner‟s grievance that she was arbitrarily denied knowledge of
the ACR gradings of other officers, is also without merit. This court hereby
requires that the directions in the preceding para of this judgment with
respect to formulation of criteria for uniform grading of judicial officers, be
suitably incorporated in the form of guidelines, for future implementation;
the Registrar General shall take appropriate action to place the papers before
the Hon‟ble Chief Justice, in this regard. The writ petition is disposed of in
the above terms without order on costs.

S. RAVINDRA BHAT
(JUDGE)

SUNIL GAUR
(JUDGE)
AUGUST 21, 2018

WP(C) No.3157/2015 Page 35

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