'Unfortunate' : Supreme Court Deprecates Gujarat Govt Notifying Promotion Of District Judges When Matter Is Sub-Judice; Summons Secretary

The Supreme Court, on Friday, strongly deprecated the conduct of the Gujarat Government in notifying the promotions of the District Judges when an issue pertaining to the promotion was sub-judice before the Supreme Court.

A petition was filed against the recommendation of the promotion of the District Judges in Gujarat. The petitioners submitted that as per the Recruitment Rules, the post of District Judge is to be filled up by keeping 65% reservation on merit-cum-seniority basis and upon passing a suitability test. They alleged that appointments have been made by a notification dated 10.03.2023, in contravention of this principle. The appointments appear to be made on the basis of seniority-cum-merit. Both of the petitioners submitted that they have secured more marks (one had secured the highest marks) than the candidates who have been appointed.

On the basis of these submissions, the Court had issued notice to the Gujarat High Court and the Gujarat Government on 13.04.2023.

It appears that the High Court had recommended the promotion before notice was issued by the Apex Court. On 13.04.2023, when the Court had issued notice, the file was pending before the State Government. Post the issuance of notice, the State Government, on 18.04.2023, notified the promotions of District Judges.

A Bench comprising Justice MR Shah and Justice JB Pardiwala noted that it was prima facie of the opinion that the act of notifying the promotion is an overreach of the court’s process.

“We are prima facie of the opinion that it is nothing but overreaching the court’s process and the present proceedings.”

It directed the Secretary of the State Government to be present on the next date of hearing to explain the extraordinary urgency shown in the matter in giving promotion and issuing the notification dated 18.04.2023. The Bench indicated that if not satisfied with the explanation it would suspend the notification.

“If we are not satisfied we will suspend this notification. We have to be satisfied wrt the extraordinary urgency.”

The Bench recorded in the order, “It is very unfortunate that despite the fact that the respondents/State Government were aware of the present proceedings and the fact that in the present proceedings the court had made the notice returnable on 28th April, 2023. The State Government has issued the promotion order dated 18.04.2023 i.e. after the receipt of the notice issued by this court in the proceedings. In the promotion order dated 18.04.2023 even the State Government had stated that the promotions are subject to the ultimate outcome of these proceedings. We do not appreciate the haste and hurry in which the State has approved and passed the promotion order dated 18.04.2023 when this court was seized with the matter and a detailed order was passed issuing notice. It is to be noted that the selection was of the year 2022, therefore there was no extraordinary urgency in passing the promotion order…”

Irked, Justice Shah asked the High Court to disclose the entire merit list on Monday. The Judge stated that the High Court and the State Government should have stayed their hands and refrained from notifying the promotion, considering the fact that the matter was pending before the High Court. He enquired, “What was the extraordinary urgency? This is a promotion of the year 2022”

In this regard, the Bench recorded in the order -

“The High Court is to file a reply specifically on whether the promotions to the post in question to be given on seniority-cum-merit basis or merit-cum-seniority basis and place on record the entire merit list.”

The State Counsel, Deepanwita Priyanka submitted that the notification was passed at the recommendation of the High Court. Justice Shah said, “It was pending with the State Government. It is the State Government that has passed the subsequent order granting promotion.”

“Notice was returnable on 28th April and you had the audacity to pass the order on 18th April?”, said Justice Shah. Priyanka submitted that she would seek instructions and file an appropriate reply in this regard.

Arguing on the maintainability of the petition, Senior Advocate, Meenakshi Arora, appearing for the promoted officers, submitted that there are orders of the Apex Court wherein the Court had directed similarly situated petitioners to approach the High Court under Article 226 of the Constitution of India.

Justice Shah responded to her submission by stating, “Based on the conduct on part of the High Court and the State Government we will not permit anyone to go to High Court under Article 226.”

He added -

“If the High Court has committed wrong, it has committed wrong. Merely because it has passed an order on the administrative side does not mean we will approve.”

Arora submitted, “The High Court can always correct itself.”

Justice Shah said, “We will correct it. We will not let the High Court flout the Rules.

Arora submitted that similar approaches have been taken by all High Courts.

Justice Shah said, “We are concerned with the Gujarat High Court.”

Arora sought permission to file a reply.

The matter is next listed for hearing on 1st May, 2023 (Monday).

[Case Title: Ravikumar Dhansukhlal Maheta And Anr. v. High Court of Gujarat And Ors. WP(C) No. 432/2023]

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