S.B.SINHA, J. - (1.) THE appellants herein are assistants working in the High Court of Gujarat. THEir promotion to the post of Section Officer was due. THEre were 25 vacancies in the post of Section Officer. A written examination was held for the said purpose. All the assistants eligible therefor appeared at an written examination. 29 employees did not obtain the requisite marks for appearing at the via-voce examination. THEy filed a writ petition before the Gujarat High Court which was numbered as SCA No. 351 of 1998.
(2.) 19 of them although cleared the written test but did not do well in viva-voce. They filed a writ petition before the High Court which was numbered as SCA No. 1298 of 1999. The post of Section Officer is a selection post. The terms and conditions of service are governed by Gujarat (Recruitment and Conditions of Service of Staff) Rules, 1964 (for short 'the 1964 Rules'). Rule 38 of the 1964 Rules relates to promotion which is set out hereunder: "38(1) Promotions shall be made on merit, but seniority in the cadre shall be ordinarily taken into account as far as possible. A person, however, may receive special promotion for recognized merit irrespective of the grade to which he may belong or irrespective of the seniority within the grade. (2) The post of Superintendent and any higher post shall be considered as selection post and no court servant shall have a claim to them merely by way of seniority." An office order in the form of a 'resolution' was issued by the Government of Gujarat on or about 20th March, 1982 which is in the following terms: "In Government Resolution, General Administration Department No. SLT 1177 G. Dated 20/5/1978 the principle of selectivity has been accepted for the purpose of appointment by promotion to the post of Heads of Departments. For this purpose a selection committee is also set up under Government Resolution, General Administration Department No. SLT 1177 G-2 dated 11/11/1980 consisting of (1) the Chief Secretary (2) the Senior Most Secretary to Government next to Administrative Department concerned. The Selection Committee will classify officers within the zone of consideration as outstanding, very good, good and unfit for promotion. The Selection list will then be prepared in the size equal to number of vacancies in the same order, subject to maintenance of seniority of classification also. Government is pleased to direct in consultation of Gujarat Public Service Commission zone of consideration shall be as under:- JUDGEMENT_2856_AIR(SCW)_2006Html1.htm three times number of vacancies All Secretariat Departments should strictly ensure that these instructions are in variable followed while considering promotion to the post filled by promotion on selection basis."
(3.) THE High Court of Gujarat also framed rules known as "the High Court of Gujarat (Recruitment and Conditions of Service of Staff) Rules, 1992 (for short 'the Rules'). Rule 47 of the said Rules relates to promotion. Sub-rule (2) of Rule 47, sub-rule (1) of Rule 50 and sub-rule (1) of Rule 91 which are relevant for our purpose are set out hereunder: "47(2) (a) For promotion to the post of Section Officer from Assistant the promotion will be effected strictly on consideration of efficiency and proved merits. Merits shall be determined on the basis of the past performance and performance at the written and oral to be taken by the Selection Committee as may be appointed by the Chief Justice............... 50(1) In respect of all such matters regarding the conditions of service of Court servants for which no provision or insufficient provision has been made in these Rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the Government of Gujarat which are not inconsistent with these Rules, shall regulate the conditions of service of Court servants subject to such modifications, variations, and exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time specify. Provided that no order containing modifications, variations or exceptions in Rules relating to salaries, allowances, leaves or pensions shall be made by the Chief Justice except with the approval of the Governor. 91. Savings of the powers of the Chief Justice :-(1) Nothing in these Rules shall be construed to limit or abridge the powers of the Chief Justice to deal with the case of any Court servant or any person to be appointed to the service in such manner as may appear to him to be fit and proper. (2) THE Chief Justice may from time to time alter, amend or repeal any of these Rules and make such further Rules or pass such orders as he may deem fit in regard to all matters herein provided or matters incidental or ancillary to these Rules or in regard to matters which have not been provided or sufficiently provided for in these rules. Provided that if such orders relate to pay, salaries, allowances, leave or pension of the servants of the High Court such orders shall be made with the approval of the Governor." The writ petitioners - Appellants principally raised two contentions: (i) The High Court committed an illegality in allowing all the 91 candidates to appear at the viva-voce test although the zone of consideration therefor as envisaged under the Resolution dated 20th March, 1982 was confined to the three times number of vacancies and, thus not more than 75 persons could have been allowed to be brought within the zone of consideration. (ii) There had been a gross violation of sub-rule (2) of Rule 47 of the Rules in terms whereof merit was to be determined on the basis of (i) past performance, (ii) written test, (iii) oral test, but as no criteria was fixed relating to past performance of the candidate, the entire selection process was vitiated in law. ;