No doubt that the judgments are evaluated and interviews are
conducted by the Hon'ble Judges of this Court. As such, the
assessment of the judgments of the candidate as well as assessment of the performance of the candidate in vivavoce would be presumed to be on objective basis. However, by now, it is a settled principle of law that merely because there is no possibility of discretion being not
exercised properly, that by itself cannot be a ground for granting wider
discretion howsoever high the authority may be. We may also
gainfully refer to the Judgment of the Apex Court in Ajay Hasia vs.
Khalid MujibAIR 1981 SC 487. In the said case, selection process included 33.33
percentage marks for oral interview. Their Lordships held that
allocation of a high percentage of marks for the oral interview as
compared to the marks allocated for the written test, cannot be
accepted by the Court as free from the vice of arbitrariness. After
discussing the entire legal position, Their Lordships observed that
allocation of more than 15% of the marks out of the total marks for
the oral interview would be arbitrary and unreasonable and was liable
to be struck down as constitutionally invalid. In the Rules that fall for
consideration before us more than twice permissible limit of 15% i.e.
33.33% of the marks are allocated on the basis of oral interview. Not
only that even 33.33 % of the marks which are to be allocated on the
basis of evaluation of the judgment are also on the basis of subjective
evaluation which may differ from a judge to judge.{Para 12}
13] We are therefore of the prima facie view that award of only
33% of marks on the basis of objective assessment and 66.66 % of
marks on the basis of subjective assessment i.e. evaluation of
judgments and oral viva appears to be an issue which needs to be
looked into.
14] We may clarify that we do not propose to encroach upon the rule
making powers of the High Court on the Administrative Side.
However, as already discussed hereinabove, we may also observe that it is high time that the Rules which govern the promotions of high office of District Judge need to be reframed in a proper format. We may also prima facie observe that the selection process for the
promotion should not have more than 50% of the marks to be
determined on the basis of subjective assessment i.e. evaluation of
judgment and granting of marks for vivavoce. We therefore feel that
rule making authority i.e. High Court on the Administrative Side will
address the issue and find out a system of selection which has more
weightage on the objective assessment than the subjective assessment
of the candidate.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1440 OF 2017
Surekha Abhay Sinha V/s State of Maharashtra
Mr. Ravi Gadagkar a/w Mr. Aniket Ransubhe i/b Mr. Ajay Basutkar for the Petitioner.
Mr. Himanshu Takke, Asstt. Govt. Pleader for Respondent Nos. 1 and
Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Rahul Nerlekar for Respondent No.3.
CORAM: B. R. GAVAI & M.S. KARNIK, JJ.
DATE: 4th September, 2017
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