The Supreme Court on April 19 ,observed that the very purpose for providing the channel of promotion through Limited Departmental Competitive Examination (LDCE) was to provide an incentive to the officers amongst the relatively junior officers to improve and to compete with each other so as to excel and get quicker promotion. In the peculiar situation prevailing in the High Court of Delhi, the very purpose is frustrated.
The Three Judge Bench comprising Justices L. Nageswara Rao , B.R. Gavai and Justice Aniruddha Bose modified its previous orders regarding the eligibility criteria for Civil Judges in Delhi Judicial Service to seek promotion to the cadre of District Judges through Limited Departmental Competitive Examination (LDCE).
The Court allowed two petitions in which the first Petition had been filed by two judicial officers in the cadre of Delhi Judicial Service for modification of the orders dated 21st March 20021 and 20th April 20102 passed by the Supreme Court in the present writ petition. Filed by the same judicial officers seeking permission to participate in the Limited Departmental Competitive Examination initiated by the High Court of Delhi for promotion to the Delhi Higher Judicial Service (DHJS) District Judge Cadre and to consider the candidature of the judicial officers ¬applicants on merits, subject to the outcome of the application for modification .It has been for a direction to the High Court of Delhi to identify two seats of LDCE quota of DHJS from the roster under Rule 7(2) of the Delhi Higher Judicial Service Rules, 1970 and to reserve them for the judicial officers¬applicants.
Second Petition has been filed by the High Court of Delhi praying for reducing the minimum qualifying service to 7 years from 10 years for promotion to the DHJS under 25% quota of LDCE.
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The Top Court noted that the petition pertains to the working conditions of the members of subordinate judiciary throughout the country. Pursuant to the directions issued by the Supreme Court, the then Ministry of Law, Justice and Company Affairs (Department of Justice), Government of India constituted the First National Judicial Pay Commission under the Chairmanship of Justice K.J. Shetty vide Resolution dated 21st March 1996. The Shetty Commission, after due deliberation, submitted its report on 11th November 1991. The recommendations of the Shetty Commission came to be considered by the Supreme Court in its order dated 21st March 2002, passed in the petition. The observations made by this Court in paragraph (27) of the said order, which read thus:
“….we expect that the calibre of the members of the Higher Judicial Service will further improve. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned : 50 per cent of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle of merit¬cum¬seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case¬law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High Courts will have to frame a rule in this regard.”
The Bench observed that there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. The Supreme Court was of the view that in this way, the calibre of the members of the Higher Judicial Service will further improve. The Court, therefore, observed that to achieve the same, while the ratio of 75% appointment by promotion and 25% by direct recruitment to the Higher Judicial Service is maintained, there should be two methods for appointment by promotion. 50% of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle of merit¬cum-seniority and the remaining 25% of posts in the service should be filled by promotion strictly on the basis of merit through LDCE for which the qualifying service as a Civil Judge (Senior Division) should be not less than 5 years.
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In the meantime, the issue with regard to eligibility requirement for recruitment to the posts in DHJS under 25% quota by promotion on the basis of merit through LDCE came up for discussion before the Full Court of the High Court of Delhi in its meeting dated 5th September 2008. In the said meeting, it was considered that a Civil Judge (Junior Division) is not eligible to become Civil Judge (Senior Division) until he completes 5 years qualifying service.
It was further discussed that under the said Rules, a Civil Judge (Junior Division) would be required to have a minimum of 10 years qualifying service to be considered even for the 25% quota through LDCE. The Full Court of the High Court of Delhi was of the view that in order to make the quota of LDCE an effective scheme of promotion for meritorious officers, it was appropriate that the eligibility requirement of 10 years be reduced to 7 years [(5 years as Civil Judge (Junior Division) and 2 years as Civil Judge (Senior Division) under the 25% quota]. The High Court of Delhi was of the view that the same would also be in conformity with Article 233 (2) of the Constitution of India and the eligibility conditions for direct recruitment from the Bar. In this background a second Petition came to be filed by the High Court of Delhi.
The Top Court found that it was difficult to find candidates for LDCE for the 25% posts reserved for the said category and in many High Courts, the said posts remained unfilled. The Court, therefore, reduced the said 25% quota to 10%.
It is not in dispute that in the High Court of Delhi, the nature of work to be performed by the Civil Judge (Junior Division) and Civil Judge (Senior Division) is the same. This is a peculiar situation prevailing in the High Court of Delhi where except for the difference in Pay Scale, there is no difference with regard to the powers to be exercised and the duties to be discharged by the said judges. It is also not in dispute that the present ratio of Civil Judge (Junior Division) to Civil Judge (Senior Division) is 80 : 20. The High Court of Delhi has already moved the Principal Secretary (LJ & LA), Government of NCT of Delhi for increase of quota of Civil Judge (Senior Division) to 25% from 20% i.e. an increase from 96 Civil Judges (Senior Division) to 121 Civil Judges (Senior Division), out of a total strength of 482.
It is the grievance of the said two judicial officers applicants that on account of this peculiar situation, for the 10% quota under the LDCE, there are no candidates available for promotion through merit. It is their further grievance that in ordinary course, a person would get promoted even to DHJS in 10 years. In this premise, the judicial officers ¬applicants pray for modification of the orders dated 21st March 2002 and 20th April 2010 passed by the Top Court in the present writ petition so as to do away with the requirement of 5 years qualifying service as Civil Judge (Senior Division) and modify the same with the requirement of 10 years total qualifying service as Civil Judge.
This position is not disputed by the High Court of Delhi. On the contrary, it is the prayer made by the High Court of Delhi that the order be modified and the requirement of 10 years minimum qualifying service be reduced to 7 years minimum qualifying service [(5 years as Civil Judge (JuniorDivision) and 2 years as Civil Judge (Senior Division) under the 25% quota].
Therefore the a Bench modified the order passed on 21.03.2002 as follows :
(i) Paragraph 28 (1) (b) of the order dated 21st March 2002 passed by this Court, is modified and substituted as under:
“25% by promotion strictly on the basis of merit through LDCE of Civil Judges having 7 years qualifying service [(5 years as Civil Judge (Junior Division) and 2 years as Civil Judge (Senior Division) or 10 years qualifying service as Civil Judge (Junior Division).”
(ii) Similarly, in the order dated 20th April 2010 passed by this Court, the direction in paragraph (7), i.e.,
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“Thus, we direct that henceforth only 10% of the cadre strength of District Judges be filled up by limited departmental competitive examination with those candidates who have qualified service of five years as Civil Judge (Senior Division)”, is modified and substituted as under:
“Thus, we direct that henceforth only 10% of the cadre strength of District Judges be filled up by Limited Departmental Competitive Examination with those candidates who have qualified service of 7 years [(5 years as Civil Judge (Junior Division) and 2 years as Civil Judge (Senior Division) or 10 years qualifying service as Civil Judge(Junior Division).”