Systemic Injustice : Examining The Failures of Justice In Appointment & Promotion of District Judges In Gujarat
(Judicial Quest News Network)
The state of affairs pertaining to the appointment and promotions of the Gujarat Judicial officers is not impartial. The matter in dispute in the writ petition pertains to interpretation of the term “merit-cum-seniority” as opposed to “Seniority-cum-merit”.
Citng violations of the rules Apex Couurt had earlier issued a stay on Gujarat High Court’s selection list for promotion of 68 judicial officers as district judges.
A bench led by Justice M.R. Shah (Retired) in his order said that “Promotions must be made on principle of merit-cum-seniority and on passing a suitably test.Recomendations by High Court and subsequent government notificationare illegal”.
The matter is pending in the Supreme Court since a period of more than seven months now and has failed to proceed even an inch, after what is labelled and and criticzed as unmerciful, blatantly violative and unjust order passed by Hon’ble. Justice M.R. Shah (Retired).on 12-05-2023by way of which, out of the total list 68 promoted judges, 40 were reverted back to their original postings and 28 were retained on their posts as additional district judges, when all of them were the outcome of the same appointment procedure It is essential to note that the petitioners in the said cases – who are also judicial officers, had not sought such an uneventful remedy and in sharp contrast to set jurisprudential standards, a partially operational stay way ordered by the bench, which helped none but favoured a handful.
This order has brought the promotion and recruitment process, being undertaken by the Hon’ble Gujarat High Court to a standstill as it is not only being able to recruit new judges by the 65% procedure as the same is under scrutiny of the Hon’ble apex court, but is also frantically, “disabled” of its other modes of promotion and recruitment, viz., the 10% accelerated promotion and 25% direct recruitment for the post of District Judges as contemplated by the Supreme Court.
The Supreme Court Bench has expressed discontent with the actions of the Gujarat Govt. on their appointment order dated April 18th, 2023. On April 28th, 2023, the Bench held that this was a clear case of ‘judicial overreach’ on the part of the Gujarat Govt. They observed that the Gujarat Govt. should not have notified the appointment of the 68 judges when it was aware that a case was pending before the SC.
This will also bring a screeching halt to continuing mandamus of the Supreme Court in the Malik Mazhar Sultan whereby the Hon’ble Apex Court is taking up the scrutiny as to timely recruitment and appointment of judges in state judiciary. It must also be noted that the said order has not just affected the appointment and promotion of District Judges but also that of promotion of Senior Civil Judges from that of Civil judges, as the said promotions are also governed by number of posts left vacant after the promotion (inclusive of both 65% and 10%) in the pool.
As a result of which, no promotions are being carried out in the Senior Civil Judge cadre and a large lot of meritorious judicial officers are stranded to the post of Civil Judges.Due to non-vacancy of which, the Gujarat High Court recruited as little as 13 civil judges out of the total vacancy list of as many as 212 posts as advertised.
It must come to light that the plight of judicial officers reverted (and even the petitioners who could not secure a post for themselves) is agonising and the Supreme Court not taking up the case for hearing adds on to the pains, it must also be noted that the order passed by Justice Shah is nothing short of unprecedented and unfair to all the judicial officers, on either side of the spectrum.
IMPERMISSIVE VIOLATION OF NATURAL JUSTICE
It must be noted that the bench headed by Justice Shah not only heard but passed the questionable order, it was a committee headed by the same Hon’ble Judge – when he was posted as an Hon’ble Judge of Gujarat High Court who had awarded promotions to previous judicial officers, BY THE SAME METHOD, WHICH JUSTICE SHAH PURPORTEDLY SAID TO BE IN NON-ABIDANCE OF THE PRINCIPLE OF MERIT-CUM-SENIORITY. Hence, arguendo, even if it is assumed that the said method is against the principles set forth, one must necessarily refrain from entering into the merits when he himself has been pivotal in awarding of such promotions.
Another glaring violation of the judgment of the apex court happens to be the guidelines given by the Apex Court in the All India Judges Assn. Case, the judgment cited often times in the Order which primarily lays down the method of merit-cum-seniority, by the same judgment lays down that if any question arises qua interpretation of any guideline given by the judgment, shall be filed “only in this court” and in “no other court”. Hence, the court seized with the All India Judges Association case(Supra), necessarily a full bench, will only hear the question regarding clarification of any method of recruitment set forth by the said judgment. However, a division bench of the Supreme Court, headed by Justice Shah, flouting all that has been set forth, goes on to pronounce the Order, when the said Bench, as had been laid down by the judgment, had no jurisdiction to decide with regard to the clarification.
Another glaring violation of the judgment of the apex court happens to be the guidelines given by the Apex Court in the All India Judges Assn. Case[1], the judgment cited often times in the Order which primarily lays down the method of merit-cum-seniority, by the same judgment lays down that if any question arises qua interpretation of any guideline given by the judgment, shall be filed “only in this court” and in “no other court”. Hence, the court seized with the All India Judges Association case(Supra), necessarily a full bench, will only hear the question regarding clarification of any method of recruitment set forth by the said judgment.[2] However, a division bench of the Supreme Court, headed by Justice Shah, flouting all that has been set forth, goes on to pronounce the Order, when the said Bench, as had been laid down by the judgment, had no jurisdiction to decide with regard to the clarification.
“the matter is still sub judicial however the matter haven’t been heard for Seven Months is creating catena of problems.”
