Senior Advocate Dushyant Dave Today (April 15) clashed with the Supreme Court bench over promotion of Civil Judges (Senior Division) to the cadre of District Judge in the State of Gujarat. He insisted Article 32 protects fundamental rights and slammed the system as unfair.
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NEW DELHI: In a strong and emotionally charged moment during a Supreme Court hearing, Senior Advocate Dushyant Dave firmly expressed disagreement with the bench, which was hearing a matter related to the selection process for the promotion of Civil Judges (Senior Division) to the cadre of District Judge in the State of Gujarat through viva voce (oral interviews).
The bench consisted of Justice BV Nagarathna and Justice SC Sharma.
During the arguments, Senior Advocate Dave raised serious concerns regarding the impact of the viva voce process on the future of judges.
He passionately argued that the Supreme Court has a duty to protect the fundamental rights of citizens, especially when the careers of judges are at stake.
As the debate heated up, he said loudly and clearly:
“With great respect your lordship is wrong!”
Justice SC Sharma, trying to explain the legal route that could be followed, remarked that the petitioner may approach the High Court under Article 226 of the Constitution, instead of approaching the Supreme Court under Article 32.
In response, Dave firmly rejected this suggestion and pointed out a key Supreme Court judgment that he believed settled the issue.
He said:
“Wrong! romesh thapar judgment settles this. This court is constituted with responsibility to protect the fundamental rights.”
As the discussion continued, the bench questioned where it was written that a petitioner cannot go to the High Court first instead of the Supreme Court.
The Supreme Court asked:
“Where does it say you cannot go to HC?”
Dave, staying strong in his argument, emotionally pointed out the impact on the lives of promoted District Judge due to the viva process and added:
“Careers are destroyed in the garb of viva voce and I am being thrown out of this court”
Justice SC Sharma responded calmly, making it clear that no one was trying to silence or remove Mr. Dave from the court.
He said:
“No one is throwing you out.”
Justice Nagarathna further clarified the court’s understanding of the matter. She stated that the case being discussed was not about direct recruitment but a promotion case, where both written tests and viva voce were part of the selection process.
She explained that even if someone clears the written exam, they can still be rejected in the interview round.
Her words were:
“This is promotion case and not direct recruitment. Here if there is written exam and viva voce they can be knocked out during viva itself.”
BACKGROUND
On 18.03.2025, the High Court of Gujarat issued a list of 70 Judicial Officers who were promoted to the District Judge Cadre on a regular basis (65% promotion quota from Senior Civil Judges).
The Petitioners were shocked to find that they were excluded from the final list solely on the ground that they had scored less than 8 marks (i.e., below 40%) in the viva voce. This was despite the fact that they had performed exceptionally well in the other components.
Notably, Petitioners No. 3, 13 to 16, 18, and 19 had secured a perfect 20/20 in the assessment of average disposal over the last five years. The Petitioner No. 13 had obtained a total of 153.83/200 marks, whereas the highest-scoring candidate in the final list had only secured 148.17/200.
Furthermore, the lowest score among the selected candidates was 102/200, which was still lower than the total marks obtained by the Petitioners. It is apparent despite receiving “outstanding” remarks in their annual confidential reports and maintaining an unblemished career, the Petitioners were excluded only on the basis of marks awarded in viva voce that was conducted for a few minutes.
Meanwhile, junior officers were promoted, bypassing the Petitioners and most of the senior officers in the list of zone of consideration.
Notably, the composition of the viva voce panel changed each day for all 5 days of viva voce, leading to a lack of consistency in evaluating the minimum standard, as different panellists applied subjective criteria in their assessments.
The process followed by the High Court of Gujarat was in contradiction to what was prescribed by the Hon’ble Supreme Court on 17.05.2024 by way of the decision in Ravikumar Dhansukhlal Maheta v. High Court of Gujarat, 2024 SCC OnLine SC 972, wherein the High Court was directed to amend the Gujarat Judicial Services Rules, 2005 in accordance with the Uttar Pradesh Higher Judicial Service Rules, 1975.
The Hon’ble Supreme Court emphasized that the minimum standard for 65% quota promotion to the cadre of District and Session Judge from the cadre of Civil Judge (Senior Division) should be objectively evaluated through a suitability test, making the process more effective and result-oriented.
The manner of appointment as employed by the High Court would completely obliterate the fine distinction between the two categories of promotion in the cadre of District & Sessions Judge by way of 65% promotion on the basis of ‘Merit-cum-Seniority’ and 10% promotion strictly on the basis of merit.
In other words, the 65% quota for promotion will assume the character of the 10% quota for promotion by way of a departmental competitive examination which is distinct in its nature since the latter is strictly based on merit.
CASE TITLE:
Dharmesh Chandrakant Jani and Ors. Vs. High Court of Gujarat and Ors.
W.P.(C) No. 298/2025
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