Service Law

Judiciary

— Promotion — High Court employees — Executive instructions issued by State Govt. not applicable to High Court employees, particularly when contrary to or inconsistent with the rules framed by Chief Justice of the High Court under Art. 229 though rules framed by the State Govt. under proviso to Art. 309 may be applicable — High Court of Gujarat (Recruitment and Conditions of Service of Staff) Rules, 1992 framed by High Court of Gujarat would apply to promotion of Assistants of the High Court to the selection post of Section Officer — Office order issued by the State Govt. in the form of resolution dated 20-3-1982 not applicable — Although applicability of the resolution never questioned and Registry of the High Court had also proceeded on the basis that the same was applicable, but that would not mean that question of non-applicability of the resolution can never be raised — However, in absence of any per se illegality in the selection process for the promotion, same cannot be held to be invalid merely because High Court at one point of time had committed mistake in proceeding erroneously, (2006) 5 SCC 789-A

Administrative Law

Judicial review

— Administrative order — Court exercising power of judicial review is concerned with whether the order is ultra vires, illegal or without jurisdiction and not whether it was passed under any wrong provision of law — If the order is found to be intra vires, legal and within jurisdiction, same would not be interfered with merely because it at one point of time had proceeded on a wrong premise — A jurisdictional question can always be raised, (2006) 5 SCC 789-B

Service Law

Promotion

— Selection post — Past performance — Section Officers in Gujarat High Court — Selection of, from Assistants — Merit sole criterion and for determining merit, past performance one of the relevant factors under the Rules — While marks allotted for written and viva voce examinations, no marks allotted for past performance — Held, High Court/Selection Committee cannot ignore past performance — Moreover, it was for the Selection Committee to devise mode for assessing past performance such as consideration of ACRs in absence of allotment of marks therefor — Having not done so, the candidates cannot be blamed on ground that they, having appeared in the examination despite being aware about non-allotment of marks for past performance, were estopped from questioning the selection process — However, non-allotment of marks for past performance may not by itself be sufficient to set aside the entire selection process — For those who failed to secure qualifying marks in written test or viva voce test or in both, question of non-allotment of marks for past performance may not be of much relevance and only in case of those who passed both in written as well as viva voce tests, past performance had to be taken into consideration, (2006) 5 SCC 789-C

Service Law

Promotion

— Selection — Merit — What constitutes — Relevant factors for determining — Past performance, relevant factor, (2006) 5 SCC 789-D