ORDER
P. Venkatarama Reddi, J
1. The petitioner who has since retired from service as District and Sessions Judge, Grade II deployed as Presiding Officer, Labour Court II at the time of filing the writ petition, has questioned the action of the respondents in not promoting him to the post of District and Sessions Judge, Grade I. He seeks a direction to promote him as Grade I District Judge with effect from 30-3-1993 i.e., the date on which the G.O. No.193 (General Admn. (SC-F)) was issued promoting certain Grade II District Judges -both seniors and juniors to the petitioner as Grade I District Judges. The names of so many officers of the rank of District Judge, Grade II came up for consideration before the First Committee consisting of senior Judges of the High Court. The relevant material viz., assessment of qualitative and quantitative performance of the Officers for the preceding years upto 1990 (?) and the remarks of Hon’ble Judges in the Annual Confidential Reports were placed before the Committee. The Committee resolved to recommend the names of so many District
Judges, Grade II for promotion. Amongst them, there were so many juniors to the petitioner. The petitioner was one of those superseded for promotion. The decision of the First Committee was approved by the Full Court of Hon’ble Judges at the meeting held on 12-2-1993 and the recommendations were forwarded to the Government in terms of the decision taken, pursuant to which G.O. 193 dated 30-3-1993 was issued in the name of the Governor.
2. It is the case of the petitioner that he was overlooked for promotion for no apparent reason, that there was nothing adverse against him in any respect and that he was not lagging behind the Officers who were promoted. The learned Additional Advocate-General contends that the mere fact that there were no adverse remarks against the petitioner in his service career and that his work on the whole was satisfactory, does not entitle him for promotion automatically. It is pointed out that the promotion from category II to category I is on the basis of selection and the seniority, is only a secondary consideration. It is submitted that the claims of all eligible Grade II District Judges within the field of consideration were duly considered and the list was drawn up. As the case of the petitioner has also received due consideration along with his seniors and juniors, the allegation of arbitrariness, non-application of mind and denial of equality of opportunity, has no basis.
3. The criterion for promotion of II Grade District Judge to I Grade District Judge is laid down by Rule 2(b) of A.P. State Higher Judicial Service Rules which reads as follows:
“All promotions shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal”.
4. Thus, the paramount consideration is merit and ability. It is implicit that such merit and ability has to be adjudged amongst the eligible seniors who come up within the range of consideration. What obviously implies, is that there should be comparative evaluation of merit amongst the senior Grade II District Judges who are otherwise eligible and who are within the field of consideration.
5. We agree with the learned Additional Advocate-General that mere absence of adverse remarks is not conclusive. We are also of the view that the assessment made by the Hon’ble Judges of the High Court is entitled to great weight. Even a presumption can be drawn that there was due and proper consideration of relevant factors. We cannot however hold the view that the comparative assessment made by the Hon’ble Judges, is immune from judicial review and it cannot be questioned. We are conscious of the fact that the scope for judicial review and, the area of interference is very limited. But, when the action is questioned under Article 226, the scrutiny by the Court in order to see whether there was any ground at all for supersession of the petitioner and whether any irrelevant factors entered into the mind of the recommending authority whose recommendation is almost binding on the appointing authority, is not barred.
6. In the above background of the legal position, when we examine the case of the petitioner, we find no demonstrable or even plausible reasons apparent from the record so as to justify the supersession of the petitioner. Let us assume that a comparative evaluation was made. But the question is whether there was an iota of justification to supersede the petitioner and prefer a junior against whom some adverse comments are found? Is there any justification to find a junior to the petitioner
more suitable for promotion when the performance of both is equally matching, going by the material on record?
7. As already staled, the names of 27 District Judges Grade II were considered for promotion. The Hon’ble Judges of the High Court (Full Court) at the meeting held on 12-2-1993 resolved to recommend to the Government to appoint by promotion 18 District and Sessions Judges, Grade it as District and Sessions Judges, Grade I with effect from various dates “having regard to their superior merit and ability”. This recommendation was accepted by the Government and the G.O. was issued on 30-3-1993. In the list of such appointees, there were 13 juniors to the petitioner. As per the extracts from the Personal Files of 30 Grade II District Judges were placed before the Hon’ble Judges of the High Court. The complaints against the Officers and the orders passed thereon have also been placed before the Judges. As far as petitioner is concerned, there was no compliant on which it was considered fit to take action or even to warn him. The extracts from the Persona] Files (ACRs) right from 1987, we find remarks that his out-turn of work was adequate or satisfactory. Remarks such as -“good Officer, satisfactory Officer” are found in the years 1987, 1988 and 1989. For the year 1990, the remark ‘satisfactory’ is found either with reference to out turn of work, or otherwise. In the year 1991, the then Portfolio Judge remarked that he did not come across any unsatisfactory working or adverse report about his reputation during his tenure as District Judge, Karimnagar. While that is the account of the petitioners performance as per the record placed before the Hon’ble Judges, we find that in the case of one of his juniors whose name figured at S.No.14 of the names considered and S.No.9 amongst the names recommended, some of the remarks of learned Judges do not go to his credit. For instance in the years 1989-1991, it was
remarked by one of the Judges that his outturn of work was ‘below satisfactory’, while some Judges have assessed him as an average Officer. Certain specific remarks arc also made by some of the Judges as follows:
1990: Out turn of work – adequate. He must show improvement in disposal of old cases. He must take interest in administration.
1991: He has to do better both in the matter of quantity of work and quality.
8. It is apparent from these remarks coupled with other remarks for the immediately preceding three or five years prior to consideration, the performance and the rating of the petitioner is definitely superior to the particular Officer mentioned supra (at Sl.No.9 of the names considered). Thus, there was no discernible reason for preferring the said Officer to the petitioner. This introduces an element of unfairness or arbitrariness in making a comparative assessment offending the doctrine of equality enshrined in Articles 14 and 16 of the Constitution.
9. There is one more aspect into which we probed in the light of the averment made in Para 3 of the affidavit. The petitioner stated in Para 3 that while he was working as District Judge, Mahabubnagar, he conducted a departmental enquiry against a Subordinate Judge and submitted a report to the High Court exonerating him of all the charges and that immediately thereafter, he faced a transfer from Mahabubnagar and was posted as PO, Labour Court II in Hyderabad in April 1992. We have gone through the said enquiry report. The High Court disagreed with the findings of the Enquiry Officer (petitioner), giving elaborate reasons for such disagreement and proposed punishment of dismissal of the Charged Officer from service. The High Court made certain comments vis-a-vis the findings and reasoning of the EO. The
reasoning of the Officer was faulted with such adjectives as: “strained, irrational and convoluted, paradoxical, peculiar and illogical”. It was observed as follows: “The EO quite unmindful of the aforementioned commissions of the Charged Officer unjustifiably exonerated him of the charges.”
10. But, absolutely, there is no material to indicate that the manner of conducting enquiry or the contents of enquiry report entered into the mind of the High Court, while considering the question of petitioner’s promotion. This aspect would not have been taken into account by the Honourable Judges of the High Court, when it was not placed before them.
11. In the light of the above discussion, we are of the view that the question of promotion of petitioner to Grade I on the relevant date on which his case was considered, should be reconsidered de novo, and a fresh decision be arrived at. On such fresh consideration, if the High Court comes to the conclusion that the petitioner was unjustly superseded and he deserved promotion on the basis of comparative assessment of merit, the High Court should send its recommendation to the Governor for promotion of the petitioner as Grade I District Judge with effect form the date on which his juniors, namely, Sri Y. Venkateswara Rao and others were promoted by G.O.Ms.No.193 dated 30-3-1993. As the petitioner had retired from service on completion of 58 years of age and the action of the High Court retiring him at the age of 58 was upheld by a Division Bench in WP No.10603 of 1994, we direct that in case the petitioner is found suitable for promotion as Grade 1 District Judge with effect from the above date, pensionary benefits shall be sanctioned to him on the basis of last pay which he would have drawn as Grade I District Judge. With these directions, the writ petition is disposed of. No costs.