Gujarat High Court
Mehulkumar Kishorsinh Kher vs The Honourable High Court Of Gujarat on 27 February, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
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C/SCA/2543/2025 JUDGMENT DATED: 27/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2543 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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MEHULKUMAR KISHORSINH KHER
Versus
THE HONOURABLE HIGH COURT OF GUJARAT
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Appearance:
MR ND NANAVATI, SENIOR ADVOCATE with MS DISHA N
NANAVATY(2957) for the Petitioner(s) No. 1
MR SHALIN N MEHTA, SENIOR ADVOCATE with MR HAMISH NAIDU for
the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present Writ Petition is filed by the Principal Senior Civil
Judge, Jamnagar, seeking following reliefs:-
"(A) The Hon'ble Court be pleased to issue a writ of mandamus or
certiorari or any other writ, order or direction in the nature of
mandamus and be pleased to direct the revaluation of the fourth
component (evaluation of judgments) and direct respondent to
consider the eligibility of the petitioner for recruitment pursuant to the
Recruitment Notice No.RC/1250/2023 dated 26.7.2024 (Annexure P-4)
for promotion to the post of District Judge, on the basis of the same;
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(B) Pending admission and final hearing of the present petition, this
Hon'ble Court be pleased to direct respondent to undertake the
reevaluation of the fourth component (evaluation of judgments) and
direct the respondent to consider the eligibility of the petitioner for
recruitment pursuant to Recruitment Notice No.RC/1250/2023 dated
26.7.2024 (Annexure P-4) on the basis of the same;
(C) Pending admission and final hearing of the present petition, this
Hon'ble Court be pleased to restrain the respondent from finalisation of
the selection pursuant to the Recruitment Notice No.RC/1250/2023
dated 26.7.2024;
(D) Pending admission and final hearing of the present petition, this
Hon'ble Court be pleased to restrain the respondent from filling up 1
post pursuant to the Recruitment Notice No.RC/1250/2023 dated
26.7.2024;
(E) Pending admission and final hearing of the present petition, this
Hon'ble Court be pleased to permit the petitioner to participate in the
VIVA-VOCE test pursuant to the Recruitment Notice No.RC/1250/2023
dated 26.7.2024, subject to such terms and conditions, as may be
deemed fit and appropriate by this Honourable Court;"
2. Thus, a bare perusal of the prayers made in the Writ Petition
manifest that the petitioner is aggrieved by the assessment of
evaluation of his judgment done by the High Court. It is the case of
the petitioner that in case, his judgments, which were called for in
view of the advertisement dated 26.07.2024 are assessed properly,
he would have qualified for the Viva Voce Test.
3. The facts of the case are that the petitioner was appointed on
23.10.2008 on the post of Civil Judge on probation for a period of
two years and thereafter, he was confirmed on 11.06.2011.
Presently, he is working as a Principal Senior Civil Judge, Jamnagar.
In view of the recruitment undertaken vide Notification dated
12.02.2022 for filling-up the post of District Judges from the quota
of 65%, he applied for the same. He also cleared the Written Test
after evaluation of Annual Confidential Report (ACR) and
assessment of average disposal. For the assessment of the fourth
component i.e. the judgments, which have been delivered by him
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for the period from 01.01.2020 to 31.10.2022, he supplied the
same in the year 2022. The same is referred to in Paragraph No.4.5
of the Writ Petition i.e. Special Civil Suit No.121 of 2006 dated
04.05.2022. The petitioner was placed in Serial No.9 of the Select
List.
4. However, in view of litigation pending before the Supreme
Court relating to the criterion of merit-cum-seniority for 65%
promotional quota, further recruitment process was not undertaken.
The Supreme Court, vide judgment dated 17.05.2024, dismissed
the Writ Petitions, and thereafter, the recruitment process was
undertaken and total 82 vacancies were notified in the recruitment
notice dated 26.07.2024. There were 247 eligible Senior Civil
Judges, who were included in the zone of consideration and the
petitioner's name was placed at Serial No.47 as per the seniority.
The promotion / recruitment process was to be conducted in four
phases, one of which is securing of minimum 40% marks in the
component of ACRs and disposals, and the fourth component was
the evaluation of the judgment and only those who had cleared and
obtained 40% in the evaluation of the judgments would be
thereafter called for Viva Voce Test.
5. The petitioner appeared in the Written Test, which was held
on 18.08.2024 and he secured the minimum qualifying marks and
was included in Serial No.36 in the list of 229 candidates. His ACRs
for last five years and assessment of disposal of last five years was
also considered. Thereafter, he was called upon vide communication
dated 18.10.2024 issued by the High Court to submit copy of four
judgments and accordingly, he submitted two judgments rendered
in the civil matters and two judgments delivered in the criminal
matters during the period from 01.04.2022 and 31.03.2024. The
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said judgments were evaluated by the High Court and the petitioner
received 41 marks out of 60%. The petitioner had included three
later judgments, whereas one judgment was common from the
earlier round of recruitment process. Thereafter, the High Court
published the list of Judicial Officers, who had obtained minimum
qualifying marks in all the components on 12.02.2025 and they
were called for Viva Voce Test. Since the petitioner was not called
for, he has filed the present Writ Petition challenging the action of
the High Court in assessment of his judgments.
6. Learned Senior Advocate Mr.Nanavaty appearing for the
petitioner has submitted that the petitioner cannot be debarred
from appearing in the Viva Voce Test on the basis of assessment of
four judgments, since in the earlier recruitment process, he was
declared pass. It is submitted that there appears to be arbitrariness
in assessing his judgments. It is submitted that one of the
judgments tendered by him is common and was sent by him in the
earlier recruitment process and three judgments were of the later
period and hence, as per his assessment, the High Court fell in error
in assessing such judgments by not giving the minimum qualifying
marks, which are required to be obtained for appearing in the Viva
Voce Test. It is submitted that there is no uniformity in assessing
the judgments by the High Courts, as there would be various
judgments, which the Civil Judges would be tendering to the High
Court in view of the requirement of satisfying the fourth component
and correspondingly, there would be various assessors-evaluators,
who would be assessing such judgments.
6.1 Learned Senior Advocate Mr.Nanavati has tendered the
judgment of the Supreme Court in the case of Sujasha Mukherji vs.
High Court of Calcutta through Registrar & Ors., (2015) 11 S.C.C.
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395 and submitted that as per the aforesaid judgment in cases of
evaluation of the marks, which are based on numerous parameters,
it would be better that a moderator can be appointed in order to see
that there is no variance in assessing the answer papers or answer
books. He has also placed reliance on the judgment of the Supreme
Court in the case of Sanjay Singh and another vs. U.P. Public
Service Commission, Allahabad & Anr., (2007) 3 S.C.C. 720, in
support of his submission. Similarly, reliance is also placed on the
judgment in the case of Pranav Verma & Ors. vs. Registrar General
of the High Court of Punjab and Haryana at Chandigarh & Anr.,
(2020) 15 S.C.C. 377.
6.2 Learned Senior Advocate Mr.Nanavati has also referred to the
ACRs of the petitioner, which are entered on the basis of the
judgments, rendered for the last five years. It is submitted that the
ACRs indicate that he is an excellent and outstanding officer and his
judgments were outstanding and hence, the assessment and
evaluation done by the High Court in assessing his four judgments,
is arbitrary and inconsistent. Thus, it is urged that the present
petitioner may be allowed to participate in Viva Voce Test.
7. Vehemently opposing the present petition, learned Senior
Advocate Mr.Shalin Mehta for the respondent has submitted that
the Writ Petition is bereft of any merit as the assessment of the
judgments done by the High Court is subjective and all the
judgments on which the reliance is placed by the learned Senior
Advocate Mr.Nanavati, will not apply in the case, as the same
pertain to evaluation / re-evaluation of the answer-sheets, which
comprises of thousands of candidates and the evaluation of such
answer-sheets is also done by various examiners. It is submitted
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that all these judgments relate to the competitive examination and
none of the judgments refer to any assessment of the judgments
delivered by the Civil Judges. Thus, it is urged that the present Writ
Petition may not be entertained.
8. We have heard the learned counsel appearing for the
respective parties at length. As mentioned hereinabove, the
petitioner has filed the present Writ Petition being aggrieved by the
assessment of his judgments done by the High Court. We need not
repeat the facts. In view of the recruitment process, the present
petitioner had tendered four judgments, two civil and two criminal
for the purpose of evaluation of the marks, which comprises of the
fourth component. It is the case of the petitioner that one
judgment, out of these four judgments, was common in the earlier
recruitment process and hence, there is inconsistency in
assessment of the judgment, which he has tendered. While placing
reliance on the judgments of the Supreme Court, as mentioned
hereinabove, it is his case that an uniformity should have been
maintained by the High Court by adopting the procedure enunciated
by the Supreme Court in the case of Sujasha Mukherji (supra). It is
also the case of the petitioner that in absence of any uniformity and
in wake of the fact that there are various judgments, which would
be tendered by various Civil Judges for assessment and the
assessors-evaluators would also be different, the mechanism, as
suggested by the Supreme Court, should be adopted as it leads to
discriminatory and arbitrary treatment. We may, at this stage,
clarify that the judgments of each of the Civil Judges are different
and the assessors-evaluaters of the judgments, which has been
done by the High Court, are also different. It is not that all the
judgments, which are tendered by the Civil Judges, are common
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dealing with particular law. The Civil Judges, on their own wisdom,
looking to their own assessment, send their best judgments.
However, the same are to be assessed by the High Court by
examining the peculiar facts, appreciation of evidence proper
application of provisions of law. The parameters, suggested by the
Supreme Court in the aforesaid judgments, would not apply in the
present case as the judgments, which are sent, are unique and
different corresponding to a particular Judge. The assessment is
also not done by a single assessor, but it has been evenly
distributed amongst the evaluators. Thus, in this case, it is
impossible to maintain uniformity as the assessment of the
judgments would be subjective depending on various aspects on
which the judgement is premised. The petitioner or the candidates
would definitely feel that what they have sent is of their best ability
and they would expect 100% marks from these judgments.
However, the High Court, while examining such judgments, is not
swayed away by the expectation of a Civil Judge, when he sends
such judgment. The assessment has been done by an individual
assessor and the judgments are also not common. The assessment
is also subjective in nature. At this stage, looking to these facts and
the entire mechanism, there is no scope of accepting the
mechanism of moderation, as directed by the Supreme Court in the
case of Sujasha Mukherjee (supra). All the decisions, on which
reliance is placed refer to the assessment, evaluation, examination
and computation of written test of various papers of different
subjects. The assessment / appraisal of judgements does not
remotely connect to the Written Test. We may, at this stage, refer
to the judgment of the Supreme Court in the case of Dr.B.R.
Ambedkar University, Agra vs. Devarsh Nath Gupta & Ors., 2023
LiveLaw S.C. 131. The Supreme Court, with regard to assessment
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of answer-sheet, has observed thus:-
"13. It is hardly a matter of doubt that the Statute governing the
examination in question does not provide for re-evaluation and
scrutiny of the answer sheets. Moreover, the award of marks in the
descriptive type answers essentially remains a matter of subjective
assessment and the Court would not be entering into that arena of
assessment, which remains reserved for the examiner/evaluator.
Therefore, in the ordinary circumstances, with reference to the
enunciations aforesaid, the process as adopted by the High Court
could not have been given our imprimatur. However, on the peculiar
facts and in the exceptional circumstances of the present case, we are
refraining from interfering in the substantive part of the relief granted
to the writ petitioner, particularly for the reasons that a direct
prohibition in the Statute in question has not been shown; the original
examiner seems to have totally omitted to award the marks in
relation to answer Nos. 2, 5(a) and 5(b); the process of evaluation by
other examiners has been adopted and taken forward by the High
Court by providing for awarding of average of the marks of the three
examiners; and any interference at this length of time might entail
serious adverse consequences to the writ petitioner. However, we
need to make it clear in no uncertain terms that non-interference in
the present case is not to be construed as any endorsement by this
Court to the process adopted by the High Court."
9. Thus, the Supreme Court has held that the award of the
marks in the descriptive type answers essentially remains a matter
of subjective assessment and the Court would not be entering into
arena of assessment, which remains reserved for the examiner /
evaluator. Same analogy has to be adopted in the matter of
assessment of judgments. The appellant cannot claim his right of
declaring him successful on the substratum of one common
judgment. The assessment of three other judgements has
independent assessment value, and has no bearing on one
judgment which was common. If such analogy is adopted then, in
the written examination also his marks are also required to be
allocated on the premise of earlier recruitment process. As far as
the support taken by the petitioner on his Confidential Report for
questioning the assessment done by the High Court of his judgment
is concerned, the same also does not merit acceptance. The entries
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in the Confidential Report do not have any nexus in awarding marks
on the assessment of judgments. Both the components operate in
different realm. If the submission advanced by the petitioner is
accepted, then the entire exercise for calling upon the judgments
from the Civil Judges and its assessment will be a futile exercise,
and the marks of fourth component can be directly allocated on the
basis of the Confidential Reports, and there would not be any need
for assessment of judgments. Such an approach will be an
anathema to the recruitment process.
10. In the present set of facts, we cannot step into the shoes of
the assessor-evaluator, who has assessed the judgments of the
petitioner on his subjective satisfaction and has allotted the marks.
The questioning of the assessment of the judgments will have
serious adverse consequences, and will dent the sanctity of the
process of recruitment. The present petition, being sans merit, is
rejected.
(A. S. SUPEHIA, J)
(GITA GOPI,J)
Maulik/s1/5
