Supreme Court of India
Dr. Kavita Kamboj vs High Court Of Punjab And Haryana on 13 February, 2024
Author: Dhananjaya Y Chandrachud
Bench: Dhananjaya Y Chandrachud
2024 INSC 192 Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos 2179-2180 of 2024
(Arising out of SLP(C) Nos 4004-4005 of 2024)
(D No 508 of 2024)
Dr Kavita Kamboj ... Appellant
Versus
High Court of Punjab and Haryana & Ors ... Respondents
WITH
Civil Appeal Nos 2181-82 of 2024
(Arising out of SLP(C) Nos 4006-4007 of 2024)
(D No 677 of 2024)
Civil Appeal No 2183 of 2024
(Arising out of SLP(C) No 1031 of 2024)
Civil Appeal Nos 2184-85 of 2024
(Arising out of SLP(C) Nos 4008-4009 of 2024)
(D No 907 of 2024)
Civil Appeal No 2186 of 2024
(Arising out of SLP(C) No 4010 of 2024)
(D No 1815 of 2024)
Signature Not Verified
Digitally signed by
CHETAN KUMAR
Date: 2024.03.11
15:12:31 IST
Reason:
2
JUDGMENT
Dr Dhananjaya Y Chandrachud, CJI
Table of Contents
A. Background of the present dispute ……………………………………………………………. 6
B. Submissions …………………………………………………………………………………………… 13
C. Analysis …………………………………………………………………………………………………. 22
i. All India Judges’ Association ……………………………………………………………….. 22
ii. The Rules can be supplemented to fill in gaps ………………………………………. 33
iii. Sivanandan C T ……………………………………………………………………………………. 37
iv. Articles 233, 234 and 235 of the Constitution of India…………………………….. 41
D. Conclusion ……………………………………………………………………………………………… 48
3
1. Permission to file the Special Leave Petitions granted.
2. Leave granted.
3. This batch of appeals has arisen from a judgment delivered by a Division Bench of
the High Court of Punjab and Haryana on 20 December 2023. The controversy that
arises before this Court pertains to the recommendations made by the High Court
on its administrative side for the appointment of thirteen in-service candidates as
Additional District and Sessions Judges. These candidates are seeking recruitment
to the post through promotions from the post of Senior Civil Judges against the 65%
promotional quota under the Haryana Superior Judicial Service Rules 2007.1
4. The Rules came into force on 10 January 2007 and regulate recruitment and service
conditions of persons for appointment to the Haryana Superior Judicial Service. Part
III of the Rules provides for the method of recruitment. Rule 2(b) defines “direct
recruit” to mean a person who is appointed to the Service from the Bar. Likewise,
“promoted officer” is defined under Rule 2(i) to mean a person who is appointed to
the service by promotion from Haryana Civil Service (Judicial Branch). Rule 5
provides that recruitment to the Service shall be made by the Governor by:
(i) promotion from amongst officers of the Haryana Civil Service (Judicial
Branch) in consultation with the High Court; and
(ii) direct recruitment from amongst eligible advocates on the recommendations
of the High Court on the basis of a written and viva voce test conducted by
1 “Rules”
4the High Court.
5. In terms of Rule 62, recruitment to the service is to be made from three sources:
(i) 65% by promotion from amongst the Civil Judges (Senior Division)/Chief
Judicial Magistrates/Additional Civil Judges (Senior Division) “on the basis
of principle of merit-cum-seniority and passing a suitability test”;
(ii) 10% by promotion “strictly on the basis of merit” through a limited
competitive examination from amongst persons holding the feeder posts;
and
2 “6 (1) Recruitment to the Service shall be made,-
(a) 65 percent by promotion from amongst the Civil Judges (Senior
Division)/Chief Judicial Magistrates/Additional Civil Judges (Senior Division) on
the basis of principle of merit-cum-seniority and passing a suitability test;
Provided that no person shall be promoted to the Service who is less than thirty-
five years of age;
(b) 10 percent by promotion strictly on the basis of merit through limited
competitive examination of Civil Judges (Senior Division) having not less than
five years qualifying service as Civil Judges (Senior Division)/Chief Judicial
Magistrates/Additional Civil Judges (Senior Division); and who are not less than
thirty five years of age on the last date fixed for submission of applications for
taking up the limited competitive examinations:
Provided that if candidates are not available for 10 percent seats, or are not able
to qualify in the examination then vacant posts shall to be filled up by regular
promotion in accordance with clause (a); and
(c) 25 percent of the posts shall be filled by direct recruitment from amongst the
eligible advocates on the basis of the written and viva voce test, conducted by
the High Court.
(2) The first and second post would go to category (a) (by promotion on the basis
of merit-cum-seniority), third post would go to category (c) (direct recruitment
from the bar), and fourth post would go to category (b) (by limited competitive
examination) of rule 6, and so on.”
5
(iii) 25% on the basis of direct recruitment from amongst eligible advocates on
the basis of a written and viva voce test conducted by the High Court.
6. Rule 7 prescribes the procedure for conducting direct recruitment. Rule 8 provides
for the procedure for promotion for assessing and testing the merit and suitability of
the judicial officers. Rule 9 provides for a limited competitive examination for the
promotion of members of the Haryana Civil Service (Judicial Branch) pursuant to
Rule 6(b). Rules 7, 8 and 9 are set out below:
“Procedure for direct recruitment.
7. The High Court shall before making
recommendations to the Governor invite applications by
advertisement and may require the applicants to give
such particulars as it may specify and may further hold
written examination and viva voce test for recruitment in
terms of rule 6(c) above and the maximum marks shall
be in the following manner:-
(i) Written Test 750 marks
(ii) Viva Voce 250 marks
Procedure for promotion.
8. Procedure for promotion for assessing and
testing the merit and the suitability of a member of the
Haryana Civil Service (Judicial Branch) for promotion
under clause (a) of sub-rule (1) of rule 6, the High Court
may-
(i) hold a written objective test of 75 marks and
viva voce of 25 marks in order to ascertain and examine
the legal knowledge and efficiency in legal field;
(ii) take into consideration Annual Confidential
Reports of the preceding five years of the officer
concerned:
Provided that any officer having grading as C (integrity
doubtful) in any year shall not be eligible to be
considered for promotion.
6
Limited competitive examination.
9. The High Court shall hold a limited written
competitive examination for promotion of members of
the Haryana Civil Service (Judicial Branch) as per rule
6(b) and the maximum marks shall be in the following
manner:
(i) Written Examination 600 marks
(ii) Assessment of Record 150 marks
(iii) Viva Voce 250 marks
Provided that the High Court shall in addition to the
above competitive examination take into consideration
any of the criteria as specified in rule 8 above:
Provided further that any officer having grading as C
(integrity doubtful) in any year, shall not be eligible to
appear in the limited competitive examination.”
7. In terms of Rule 8, the High Court is required to hold a written objective test
comprising 75 marks and a viva voce comprising 25 marks to ascertain and examine
the legal knowledge and efficiency of the candidates in the legal field. In addition,
the High Court is required to take into consideration the Annual Confidential
Reports 3 of the preceding five years of each officer under consideration.
A. Background of the present dispute
8. On 29 January 2013, the High Court, on its administrative side, resolved that an
aggregate of 50% marks in the written test and in the viva voce would be required
so as to render a candidate eligible for promotion. The relevant part of the resolution
is extracted below:
3 “ACRs”
7“i) In terms of Rule 8(a) of the Haryana Superior
Judicial Service Rules, 2007, the suitability test shall
consist of written objective test of 75 marks and viva
voce of 25 marks so as to assess legal knowledge and
the efficiency in legal field for discharging higher duties
and responsibilities. Obtaining of 50% marks in
aggregate of the written test and in viva voce would
make a candidate eligible for promotion.”
9. On 11 November 2021, a meeting of the Recruitment and Promotion Committee4
overseeing the Superior Judicial Service was held. The Minutes of the Meeting
adverted to Rules 6 and 8 of the Rules and a corresponding provision contained in
the Punjab Superior Judicial Service Rules 2007. Both sets of Rules were amended
by the States of Haryana and Punjab in order to bring uniformity in promotions to
the Superior Judicial Service. In both the States, the Committee, inter alia, resolved
that:
“ii. In terms of Rule 7(3)(a) of the Punjab Superior
Judicial Service Rules, 2007 and Rule 6(1)(a) of
Haryana Superior Judicial Service Rules, 2007, the
suitability test shall consist of written objective test of 75
marks and viva voce of 25 marks so as to assess legal
knowledge and efficiency in legal field for discharging
higher duties and responsibilities. Securing, 50% marks
in the written test and 50% marks in Viva voce
individually would make a candidate eligible for
promotion.”
10. As a result of the above Resolution, the Committee decided that in order to be
eligible for promotion, a candidate must secure 50% marks in the written test and
50% marks in the viva voce. In other words, while under the earlier Resolution of
the Full Court dated 29 January 2013, a candidate was required to obtain at least
50% marks in the written test and viva voce combined, the proposal of the
4 “Committee”
8
Recruitment and Promotion Committee of 11 November 2021 stipulated that a
candidate must obtain at least 50% marks in the written test and at least 50% in the
viva voce. This Resolution of the Committee was approved by the Full Court at a
meeting which was held on 30 November 2021.
11. At the same time, it must also be noted that the Committee had proposed certain
modifications in the benchmark for assessing the ACRs of candidates under Rule 8.
The Full Court, while deliberating on the recommendations of the Committee,
resolved that:
“…the report dated 11.11.2021 of Hon’ble Recruitment
and Promotion Committee (Superior Judicial Service)
be accepted with modification in para No. iii of the
“Benchmark of the ACRs as per Rule 8”. After
modification, the said para be read as under:-
“(iii)(a) A candidate should have obtained at least four
“B+Good” or above grading in the Annual Confidential
Reports in the preceding five years and
(b) The candidate should not be having grading
as C (integrity doubtful) in any year.
Provided that for the purpose of assessing the
benchmark, the ACRs of a candidate, yet to be
approved by the Hon’ble Full court, would also be
considered but his result would be kept in a sealed
cover, subject to the final decision of the Hon’ble Full
Court.”
12. The Full Court also resolved that in order to settle the issue in a comprehensive
manner the necessity, if any, to amend the Rules should be examined by the
Committee overseeing the Superior Judicial Service and the Rule Committee.
13. Following the above resolution, the two committees convened on 11 February 2022.
The Minutes of the Meeting of the two committees reflect the following decision:
9
“Re:- Consideration of matter qua amendment in Rule
8 of Punjab Superior Judicial Service Rules, 2007 and
Rule 8 of Haryana Superior Judicial Service Rules,
2007 in view of the report dated 11.11.2021 of the
Hon’ble Recruitment and Promotion Committee
(Superior Judicial Service) as well as modification in
para no. (iii) of the ‘Benchmark of the ACRs as per Rule
8’, by the Hon’ble Full Court.
Meeting note perused. After deliberating upon the
matter at length, this Committee recommends that the
word ‘and’ be inserted at the end of sub-rule (I) and
before sub-rule (ii) of Rule 8 of Haryana Superior
Judicial Service Rules 2007. This Committee also
recommends that existing proviso to Rule 8 of Punjab
Superior Judicial Service Rules 2007 as well as to Rule
8 of Haryana Superior Judicial Service Rules 2007 be
substituted as under:-
“Provided that an officer with an entry of integrity
doubtful in any year shall not be eligible to be
considered for promotion.”
This Committee has also perused Rule 9 of Punjab
Superior Judicial Service Rules 2007 and Rule 9 of
Haryana Superior Judicial Service Rules 2007 and
recommends that existing second proviso to Rule 9 of
Punjab Superior Judicial Service Rules 2007 and to
Rule 9 of Haryana Superior Judicial Services Rules
2007 be substituted as under:-
“Provided further that an officer with an entry of Integrity
doubtful in any year shall not be eligible to appear in the
said examination.”The matter be referred to the Hon’ble Full Court for
approval.”
14. On 24 August 2022, the process of filling up vacancies for the post of Additional
District and Sessions Judges from amongst Civil Judges (Senior Division)/Chief
Judicial Magistrates/Additional Civil Judges (Senior Division) was initiated and a
communication was accordingly addressed to thirty-nine candidates. The High
Court conducted a written test which was followed by a viva voce. On 23 February
2023, the Registrar (Judicial) addressed a communication to the State Government
10recommending the names of thirteen judicial officers for appointment by way of
promotion as Additional District and Sessions Judges.
15. On 2 March 2023, a communication was addressed by the Chief Secretary to the
Government of Haryana to the Registrar (Judicial) seeking a
“justification/clarification” in regard to certain judicial officers of the 2007, 2009 and
2010 batches on the ground that they appeared to be senior than the last of the
thirteen recommended officers. The communication noted that in spite of seniority,
these judicial officers were not recommended for promotions. The High Court was
also called upon to clarify “the criteria of merit and suitability test, on the basis of
which principle of merit-cum-seniority has been affected (sic) and names of officers
senior to the recommended officers have not been recommended”.
16. The High Court of Punjab and Haryana responded to the communication of the State
Government on 22 March 2023, indicating that the appointment to the thirteen posts
of Additional District and Sessions Judges which was initiated by way of promotion
was sought to be made strictly in terms of Rule 6(1)(a) of the Rules which prescribes
merit-cum-seniority read with the criteria laid down by the High Court for assessing
the suitability of a candidate for appointment. The High Court further stated that all
appointments and promotions concerning the judiciary fall under the control and
supervision of the High Court and since the recommendations have been approved
by the Full Court, they were binding on the State Government under Article 235 of
the Constitution.
17. On 29 March 2023, an advocate by the name of Mr Prem Pal submitted a
representation to the Chief Secretary of Haryana seeking the intervention of the
11State Government in order to either reject the recommendations of the High Court
or to initiate a fresh process of consultation. The representation stated that the
recommendations of the High Court were not binding since the requirement of
obtaining 50% marks in the viva voce had not been communicated to the candidates
and no minimum cut-off in the viva voce had been prescribed. It is also stated that
no criteria had been adopted for conducting the suitability test.
18. Following the receipt of this representation, the State Government sought the
opinion of the Union Ministry of Law and Justice. The Union Ministry of Law and
Justice tendered its opinion on 26 July 2023, stating that Article 233 of the
Constitution which deals with appointments, postings and promotions of District
Judges envisages consultation between the State Government and the High Court.
The opinion of the Union Ministry was that the modification of the suitability criteria
in terms of the Resolution dated 30 November 2021 of the High Court lacked the
element of consultation with the State Government and, therefore, did not have a
binding effect.
19. A writ petition under Articles 226 and 227 was filed by certain candidates working as
Civil Judges (Senior Division) and Chief Judicial Magistrates in the State of Haryana
for seeking a mandamus to the State Government to conclude the process of
selection and to notify the appointments by way of promotion of candidates selected
to the posts of Additional District and Sessions Judge.
20. The State of Haryana addressed a communication on 12 September 2023 to the
Registrar General of the High Court stating that the State Government had decided
not to accept the recommendations for promoting thirteen judicial officers on the
12ground that the “settled procedure” under Article 233 read with Article 309 and the
Rules of 2007 had not been followed. The State of Haryana sought to support its
decision on the basis of the legal opinion which was tendered on 26 July 2023 by
the Union Ministry of Law and Justice. The relevant extract of the communication
reads as follows:
“Therefore, keeping in view the position explained
above, the State Government has decided not to accept
the present recommendation for promotion of 13
Haryana Civil Service (Judicial Branch) Officers to the
post of Additional District and Sessions Judges (ADSJ),
as the State Government as well as the Central
Government (Ministry of Law and Justice) have
observed that the settled procedure under Article 233
read with Article 309 of the Constitution of India, i.e.,
Haryana Superior Judicial Service Rules, 2007 has not
been followed while sending names to the Government
for promotion. Hence, you are requested to send
revised recommendations by following set procedures
as per law.”
21. The petition before the High Court was amended so as to challenge the letter dated
12 September 2023. Other writ petitions were filed before the High Court by
unsuccessful candidates, inter alia, seeking an order restraining the State from
accepting the recommendations made by the High Court and for quashing the
Resolution of 30 November 2021, along with the recommendations for promotion of
the petitioners. These candidates who had not been selected also sought a direction
to the High Court, on its administrative side, to recommend candidates for promotion
to the post of the District and Sessions Judges under Rule 6(1)(a) without observing
the requirement of obtaining 50% marks each in the written examination and in the
viva voce. The High Court, by its impugned judgment dated 20 December 2023,
disposed of the batch of petitions. The High Court directed the State of Haryana to
13take positive action to accept its recommendations which were made on 23
February 2023.
22. In the batch of appeals which have arisen before this Court, we have heard Mr P S
Patwalia, Mr Shyan Divan and Mr Gopal Sankaranarayanan, senior counsel, who
have appeared on behalf of the candidates who have not been recommended for
appointment by the High Court. Mr Tushar Mehta, Solicitor General, has appeared
on behalf of the State of Haryana in urging that the State Government was justified
in rejecting the recommendations of the High Court. Mr Nidhesh Gupta, senior
counsel, appears on behalf of the High Court. Mr Rameshwar Singh Malik, senior
counsel, has supported the plea of the High Court, while appearing on behalf of the
candidates who have been recommended for appointment.
B. Submissions
23. Mr P S Patwalia, senior counsel, has basically urged the following submissions:
(i) In terms of the judgment of this Court in All India Judges’ Association v.
Union of India 5, the suitability of candidates for promotion as District
Judges from amongst in-service candidates is required to be adjudged.
Apart from the requirement of conducting a suitability test and a viva voce,
Rule 6(1)(b) read with Rule 8 requires the ACRs of the preceding five years
to be taken into consideration. The proforma of the ACRs contains an
exhaustive elaboration of the criteria which are to be borne in mind while
assessing a candidate. In other words, the suitability of a candidate has to
5 (2002) 4 SCC 247
14
be assessed on the basis of the track record, as reflected in the ACRs;
(ii) In the above backdrop, the Resolution of the Full Court dated 30 November
2021 which prescribed the requirement of obtaining 50% as a condition of
eligibility in the suitability test and in the viva voce separately, is an evident
act of discrimination against candidates seeking promotions in the 65%
quota, compared to those seeking in-service promotions in the 10% quota.
There is no requirement of obtaining the minimum cut-off individually in the
suitability test and in the viva voce when appointments are made of in-
service candidates through the limited competitive examination. There is no
rational justification for the High Court to lay down a minimum cut-off of the
nature which has been prescribed by the resolution dated 30 November
2021 only for candidates seeking promotion in the 65% quota while there is
no such requirement in the 10% quota for the limited competitive
examination;
(iii) The element of discrimination is evident from the fact that no such cut-off as
a condition of eligibility is prescribed for candidates who seek direct
recruitment as Additional District and Sessions Judges; and
(iv) The imposition of a cut-off as a condition of eligibility prescribing a minimum
of 50% of marks in the viva voce was disclosed, for the first time, in a
response to a query under the Right to Information Act 2005 on 28 March
2023. Consequently, candidates were completely in the dark about the
imposition of such a requirement as a condition of eligibility before the
disclosure. Consequently, the High Court has acted with arbitrariness in
15
recommending the appointments.
24. Mr Shyam Divan, senior counsel, submitted that:
(i) Candidates drawn for promotion in the 65% promotion quota and 10% from
the in-service candidates appearing for a limited competitive examination
are from the same pool. Consequently, a minimum cut-off cannot be
logically justified for the 65% promotion quota when there is no such norm
for the 10%, which is filled up on the basis of the limited competitive
examination;
(ii) Rule 19 empowers the State Government to make regulations not
inconsistent with the Rules to provide for all matters for which provision is
necessary or expedient for the purpose of giving effect to the Rules. In the
present case, there was a longstanding practice, following the earlier
resolution of the Full Court dated 29 January 2013 of requiring a cut-off of
50% overall on the basis of the combined marks which were obtained in the
written test and in the interview. A departure from a practice which had held
the field for such a long period of time could have only been made either by
amending the Rules or by the exercise of power under Rule 19 by the State
Government to make regulations;
(iii) The principles of fairness and good governance which have been laid down
in the judgment of the Constitution Bench of this Court in Sivanandan C T
v High Court of Kerala 6 apply independent of prejudice. Where a breach
6 2023 SCC Online SC 994
16of the principles of natural justice is alleged for a failure to provide a hearing,
an additional layer has been provided in decisions of this Court to the effect
that such a breach will not necessarily invalidate the action in the absence
of prejudice to the candidates. While a violation of the principles of natural
justice may not be fatal in the absence of prejudice, in the present case, the
candidates who have failed to be selected rely on an independent principle
of administrative law which requires fairness in governance;
(iv) In any event, this Court may scrutinize the marksheets, for the purpose of
analyzing the marks which were awarded in the course of the viva voce to
determine as to whether there is an element of prejudice in the award of
marks; and
(v) Based on the longstanding practice in the present case, all candidates were
under a legitimate expectation of the continuance of the norms which were
prescribed in the Resolution of the Full Court dated 29 January 2013 and
any alteration of the position without due notice to the candidates has
resulted in substantial injustice.
25. Mr Gopal Sankaranarayanan, senior counsel urged that:
(i) The absence of notice to candidates about the alteration in the criteria of
eligibility results in a failure to satisfy the norms of consistency and
predictability;
(ii) The requirement of obtaining minimum qualifying marks in the viva voce
was introduced for the first time by the Resolution dated 30 November 2021
17of which candidates had no notice;
(iii) In paragraph 10.97 of its recommendations, the Shetty Commission had
stated that in matters of direct recruitment, it was not inclined to impose a
minimum cut-off in the viva voce in order to obviate arbitrariness in the
process. Though the recommendation deals with direct recruitment, there is
no rational reason to exclude it in respect of the process which is followed
in promoting in-service candidates in the 65% promotion quota; and
(iv) On 28 February 2023, this Court was informed of there being 38 vacancies
in the Superior Judicial Service in Haryana. The High Court has made
recommendations for appointing 13 candidates. This indicates the existence
of a substantial number of vacancies. Consequently, public interest would
not necessarily be subserved by affirming the view which has been taken
by the High Court, both on its administrative side and on the judicial side.
26. Mr Tushar Mehta, Solicitor General submitted that:
(i) Bearing in mind the principles which are incorporated in Articles 233, 234
and 235 of the Constitution, the criteria for selection of District Judges
should be fixed in consultation with the State Government;
(ii) A collaborative exercise must be followed by the two organs of the State –
the Judiciary and the Executive;
(iii) There is an element of subjectivity and arbitrariness implicit in laying down
minimum marks for the interview process since a candidate who has
18
otherwise obtained high marks in the suitability test may be excluded for
failure to meet the cut-off in the viva voce;
(iv) Article 233 would encompass the criteria for selection, whether by a rule or
by a resolution. Hence, the High Court, while making a modification to its
own Resolution, ought to have consulted the State Government; and
(v) The Government was not informed by the High Court of the change in the
criteria requiring a minimum of 50% marks in both the suitability test and in
the viva voce. On the other hand, where an amendment of the Rules was
sought to be effected, the High Court has moved the State Government.
27. Mr Nidhesh Gupta, senior counsel appearing on behalf of the High Court, in support
of the decision which was taken on the administrative side and ultimately as affirmed
in the impugned judgment of the Division Bench, submitted:
(i) Properly construed, Rule 8 of the Rules provides the modalities for testing
the merit and suitability of the members of the Judicial Branch for promotion
under clause (a) of Rule 6(1). The purpose of conducting the written test
and the viva voce is to ascertain and examine the knowledge and efficiency
of the officer under consideration in law;
(ii) Where the Rules are silent in regard to the details in the implementation
process, it is a settled principle of law that they can be supplemented by
administrative instructions;
(iii) The Rules, in the present case, being silent on the minimum qualifying
19marks required to be obtained in the written test and the viva voce, the
administrative instructions which were issued by the High Court do not
involve any amendment of a rule;
(iv) As a matter of fact, the Full Court Resolution dated 29 January 2013 was
issued in terms of the administrative power which is vested in the High Court
in regard to the appointment of District Judges under Article 233 and in
relation to the control of the High Court over the District Judiciary under
Article 235 and the High Court has invoked the very same power while
modifying the terms of the earlier resolution on 30 November 2021;
(v) The plea of discrimination as between the requirements for direct recruits,
the in-service candidates in a limited departmental examination and the
promotional quota for in-service candidates has no valid basis in law. All
three categories are distinct and constitute valid classifications;
(vi) The decision of this Court in All India Judges’ Association (supra)
distinguishes between all the three categories for appointment to the Higher
Judicial Service. This distinction is exemplified by the Rules in question. For
the promotional quota of 65%, the written test consists only of multiple-
choice questions totaling to 75 marks, each candidate being given four
options for every question. In the matter of direct recruitment, the written
test consists of five papers totaling 750 marks comprising of three papers in
law, each of 200 marks, a language paper of 100 marks and a general
knowledge paper of 50 marks. In the limited competitive examination, the
written examination has a weightage of 600 marks. As opposed to the
20
detailed examination which is expected of candidates for direct recruitment
and in the limited competitive examination, the in-service candidates who
avail of the promotional quota of 65% have to appear for a suitability test of
a different nature and character. Consequently, all the three avenues for
appointment to the Higher Judicial service are distinct and the High court
was justified in imposing a minimum eligibility requirement of 50% in the
written test and the viva voce independently;
(vii) Interviews in the present case were conducted by six of the senior-most
Judges of the High Court, including the Chief Justice and there is no
allegation of mala fides or an attribution of illegality to the interview. Marks
in the written examination were disclosed only after the final results were
declared. A candidate cannot contend that they were casual in the course
of the interview only because they expected to do well in the written
examination;
(viii) In consequence, no prejudice has been caused to any candidate by the High
Court not having disclosed the minimum eligibility cut-off of 50% prior to the
date of the interview. No prejudice is caused to any candidate because it
cannot be contended that a candidate would have prepared differently if
they were made aware of the eligibility requirement;
(ix) On the aspect of consultation with the State Government within the ambit of
Articles 233 and 235, the High Court has relied on settled precedent,
including the decisions of the Constitution Benches of this Court which
emphasize that in matters of appointments to the District Judiciary, the High
21
Court remains the sole repository of power;
(x) The consistent view of this Court has been that the requirement of minimum
marks for interviews in the appointments of District Judges is necessary
since the selection has to be made on the basis of merit-cum-seniority;
(xi) In the present case, the appellants have sought a mandamus before the
High Court for the enforcement of the Resolution of the Full Court of 2013.
That being the position, it is not open to them to challenge the ability of the
High Court to frame a resolution for modifying the terms of the earlier
Resolution dated 29 January 2013; and
(xii) As regards the conduct of the State of Haryana, it is apparent that initially
the only objection of the State Government was in regard to the non-
recommendation of more senior persons in the Service. It is thereafter when
an objection was raised by an advocate in a representation to the effect that
the cut-off of 50% had not been communicated to the candidates, that this
issue has been raised by the State Government.
28. Mr Rameshwar Singh Malik, senior counsel, has urged that:
(i) The Rules being silent, the High Court had the power to fill in the gap by the
issuance of administrative directions;
(ii) Since no amendment of the Rules was being brought about, there was no
requirement of consultation with the State Government; and
(iii) The criterion which was fixed by the Resolution of the Full Court dated 29
22January 2013 is not under challenge and, in fact, the relief which was sought
before the High Court was for the restoration of the criteria under the
Resolution. Consequently, where the same power has been used by the
High Court to make a selection subsequently in 2021, such an alteration is
beyond the purview of judicial review.
29. The rival submissions would now need to be analyzed.
C. Analysis
i. All India Judges’ Association
30. The genesis of the recruitment to the judicial service, particularly, in the context of
the controversy before this Court, traces back to the judgment in the All India
Judges’ Association (supra). In the course of the judgment, this Court noted that
at the time, the recruitment to the Higher Judicial Service was being made from two
sources: first, by promotion from amongst the members of the Subordinate Judicial
Service; and second, by direct recruitment. The decision was preceded by the
recommendations of the Shetty Commission, 7 particularly regarding the revision of
the pay scales and conditions of service of the District Judiciary. While accepting
the recommendations of the Shetty Commission, which resulted in a favourable
modification of the pay scales of the District Judiciary, this Court underscored the
need to ensure certain minimum standards, objectively assessed or fulfilled, by
judicial officers who enter the Higher Judicial Service. This Court accepted the
recommendation of the Shetty Commission that direct recruitment to the cadre of
7 First National Judicial Pay Commission, 1999 (Shetty Commission Report)
23
District Judges from amongst advocates should be 25%, by way of a competitive
examination consisting of a written test and a viva voce. The decision enunciated
that in-service judicial officers must be provided with the incentive to compete with
each other in the process of obtaining expedited promotions. The object of doing so
was to improve the caliber of persons recruited to the Higher Judicial Service.
Consequently, as regards appointment by promotion, this Court held that 50% of the
total posts in the Higher Judicial Service should be filled up by promotion based on
merit-cum-seniority, while the remaining 25% of the posts in the Service should be
filled up strictly based on merit through a limited departmental competitive
examination with a stipulated qualifying service in the cadre of Civil Judge (Senior
Division). The conclusions of this Court were formulated in the following terms:
“28. As a result of the aforesaid, to recapitulate, we
direct that recruitment to the Higher Judicial Service i.e.
the cadre of District Judges will be:
(1)(a) 50 per cent by promotion from amongst the Civil
Judges (Senior Division) on the basis of principle of
merit-cum-seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis
of merit through limited competitive examination of Civil
Judges (Senior Division) having not less than five years’
qualifying service; and
(c) 25 per cent of the posts shall be filled by direct
recruitment from amongst the eligible advocates on the
basis of the written and viva voce test conducted by
respective High Courts.
(2) Appropriate rules shall be framed as above by
the High Courts as early as possible.”
31. Following the decision in All India Judges’ Association (supra), rules were framed
in various States to comply with the directions. Subsequently, many High Courts
found it difficult to fill up 25 percent posts through the limited departmental
24competitive examination. Therefore, in All India Judges’ Association v. Union of
India,8 this Court reduced the quota of judicial officers from the limited competitive
examination from 25 percent to 10 percent. As a consequence, three sources of
recruitment to the Higher Judicial Service have come into being:
(i) 65% of seats by promotion from the cadre of Civil Judges (Senior Division)
on the basis of the principle of merit-cum-seniority;
(ii) 10% by promotion on the basis of merit through a limited competitive
examination for Civil Judges (Senior Division) fulfilling stipulated qualifying
service; and
(iii) 25% seats by direct recruitment from amongst advocates who fulfill the
eligibility requirements.
32. It has been argued that since the Shetty Commission held that no minimum cutoffs
should be fixed for the viva voce for the route of direct appointments (under Rule
6(1)(c)), and the findings of the Shetty Commission were upheld by the Court in All
India Judges’ Association (supra), it would be unreasonable to prescribe minimum
cutoffs for viva voce for another method of recruitment to the same post.
33. The Rules under consideration preserve the three sources of recruitment, in the ratio
of 65% by promotion based on merit-cum-seniority, 10% strictly on the basis of merit
by a limited competitive examination; and 25% by direct recruitment from amongst
eligible candidates based on the written and viva voce test. Each of the three
8 (2010) 15 SCC 170
25
sources of recruitment is distinct in itself. Recruitment by promotion under Rule
6(1)(a) is based on the principle of merit-cum-seniority and passing of a suitability
test, while recruitment by promotion under Rule 6(1)(b) is strictly based on merit
through a limited competitive examination and 5 years of minimum qualifying service
as Civil Judges. The purpose of three sources of recruitment is similarly distinct.
Advocates with the requisite experience are permitted to compete for direct
recruitment to the Superior Judicial Service. In-service judicial officers have two
avenues for entering the Superior Judicial Service: they can either appear for a
limited competitive examination where selection would be strictly based on merit or
they can seek a promotion through the normal channel of promotion based on the
merit-cum-seniority criterion.
34. In order to appreciate the classification between the three categories of recruitment
to the Higher Judicial Service, it would be necessary to dwell on the modalities or
the procedure for recruitment. Direct recruitment, for which a 25% quota is set apart
by Rule 6(1)(c), is made on the basis of a written examination consisting of 750
marks and a viva voce of 250 marks. While recording the submissions of Mr Nidhesh
Gupta, senior counsel appearing on behalf of the High Court, we have already
adverted to the manner in which the written test comprising of 750 marks is
conducted, comprising of three law papers, a language paper and a paper in general
knowledge. The procedure for direct recruitment is spelt out in Rule 7. The
procedure for regular promotion, on the other hand, is provided in Rule 8 which
contemplates the assessment and testing of the merit and suitability of a member
of the Judicial Branch in Rule 6(1)(a). The purpose of the objective test of 75 marks
and the viva voce carrying 25 marks is to ascertain and examine legal knowledge
26
and efficiency in the legal field. Besides this, the ACRs of the preceding five years
of the officer are taken into reckoning. Since the candidates who are evaluated for
promotion under Rule 6(1)(a) read with Rule 8 are in-service candidates, the
selection is based on a test (comprising of the written and the viva voce) and due
consideration of the service records as borne out by the ACRs.
35. Recruitment by promotion under Rule 6(1)(b) is “strictly on the basis of merit
through the limited competitive examination” and a 5-year qualifying service
requirement. Under Rule 6(1)(b), the limited competitive exam is of a competitive
nature where members of the Service compete inter se, as opposed to the direct
recruitment exam, which is open in nature. The limited competitive exam under Rule
6(1)(b), according to Rule 9, comprises of a 600-mark written examination. In
addition, 150 marks are assigned to the assessment of the records and 250 marks
are assigned to the viva voce. The proviso to Rule 9 indicates that the High Court
shall, in addition to the competitive examination, take into account any of the criteria
specified in Rule 8 which apply to the normal procedure for promotion. The limited
competitive examination under Rule 6(1)(b) read with Rule 9 cannot be equated with
the procedure for promotion for assessing merit and suitability under Rule 6(1)(a)
read with Rule 8.
36. The scope of recruitment through regular promotion under Rule 6(1)(a) read with
Rule 8 is different from recruitment through promotion based on limited competitive
examination under Rule 6(1)(b) read with Rule 9. As we have already noted, the
purpose of a limited competitive examination, as set out in the judgment of this Court
in All India Judges’ Association (supra), was to provide an avenue for in-service
officers to compete inter se for accelerated promotion on fulfilling a higher
27
benchmark of competition based on merit. Moreover, this Court also recognised that
the criteria and method of testing the suitability of judicial officers should be different:
“27. […] Furthermore, there should also be an incentive
amongst the relatively junior and other officers to
improve and to compete with each other so as to excel
and get quicker promotion. In this way, we expect that
the calibre of the members of the Higher Judicial
Service will further improve. In order to achieve this,
while the ratio of 75 per cent appointment by promotion
and 25 per cent by direct recruitment to the Higher
Judicial Service is maintained, we are, however, of the
opinion that there should be two methods as far as
appointment by promotion is concerned : 50 per
cent of the total posts in the Higher Judicial Service
must be filled by promotion on the basis of principle
of merit-cum-seniority. For this purpose, the High
Courts should devise and evolve a test in order to
ascertain and examine the legal knowledge of those
candidates and to assess their continued efficiency
with adequate knowledge of case-law. The
remaining 25 per cent of the posts in the service
shall be filled by promotion strictly on the basis of
merit through the limited departmental competitive
examination for which the qualifying service as a
Civil Judge (Senior Division) should be not less
than five years. The High Courts will have to frame a
rule in this regard.”(emphasis supplied)
37. The submission of the unsuccessful officers, that there is no valid basis in law to
impose a minimum eligibility cut-off of obtaining 50% marks individually in the written
test and the viva voce, when such a requirement is not imposed either for direct
recruitment or for the limited competitive examination cannot hold substance. This
argument is premised on the fact that the three different modes of recruitment are
meant for the same post. It is argued that since the purpose of all the three sources
is to recruit persons for the same post, a different requirement such as the 50% cut-
off requirement for the viva voce in one of the three modes, is arbitrary. Though the
28
recruitment is meant to fill vacancies in the same post in the higher judicial service,
the candidates taking the three routes to reach that post are placed differently and
thus must be tested differently. In-service candidates seeking recruitment through
promotions cannot be considered on par with the candidates seeking direct
recruitment or for that matter with candidates seeking accelerated promotion
through a limited competitive test. 9
38. Even among the candidates seeking promotion, there is a clear distinction between
those who are recruited under Rule 6(1)(a) based on merit-cum-seniority and those
who are recruited under Rule 6(1)(b) based strictly on merit, in order to avail of a
quicker promotion. This Court in All India Judges’ Association (supra) clearly
noted that the rationale for accelerated promotions was to afford an incentive to
those who were relatively junior but desirous of promotion.10 Similarly, in Dheeraj
Mor v. High Court of Delhi,11 a three-Judge Bench of this Court held that the
purpose of promotion through a limited competitive examination is to ensure that in-
service candidates are able to “take march to hold the post of District Judges on the
basis of their merit.”
39. The Rules prescribe different criteria for assessing the in-service judicial officers
eligible for promotion – while one is based on merit-cum-seniority, 12 the other is
based strictly on merit de hors seniority. 13 This difference justifies the distinct
methods of evaluation prescribed under Rules 8 and 9. A comparison of Rules 8 and
9 would show that the written examination under Rule 9 carries 600 marks and is
9 Dheeraj Mor v. High Court of Delhi, (2020) 7 SCC 401
10 All India Judges’ Association (supra), [27].
11 (2020) 7 SCC 401
12 Rule 6(1)(a)
13 Rule 6(1)(b)
29
much more elaborate and rigorous, as opposed to the 75 marks’ objective test under
Rule 8. The first proviso to Rule 9 14 mandates that the High Court shall, in addition
to competitive examination mentioned in Rule 9, consider any criteria as specified
under Rule 8. As we shall advert to later in this judgment, the ultimate discretion
vests with the High Court regarding how they conduct the examinations under the
Rules. The proviso while recognising the power of the High Court to import “any of
the criteria” specified in Rule 8 to Rule 9, retains the other differences about the
manner in which the two processes of promotion under Rule 8 and Rule 9 would
operate. Thus, even though candidates seeking promotions under Rules 6(1)(a) and
6(1)(b) are drawn from in-service judicial officers, there is a rational basis of treating
them differently – while some candidates among the in-service officers can seek
regular promotions based on their seniority, those relatively junior have an incentive
to opt for accelerated promotion by taking a limited competitive examination by
demonstrating their merit. Bearing in mind the distinct nature of the test under Rule
8, it cannot be gainsaid that there is a valid basis for imposing a distinct requirement,
in this case, of an eligibility cut-off both in the written test and the viva voce
independently. The fundamental point is that each of the three avenues for
appointment to the Higher Judicial Service are distinct and are based on
classifications having a nexus to the object and purpose sought to be achieved.
Whether such a requirement is violative of Articles 233 and 235 of the Constitution
is a separate matter which would have to be adjudicated independently, which we
will do in the subsequent part of this judgment.
14 “Provided that the High Court shall in addition to the above competitive examination take into consideration
any of the criteria as specified in Rule 8 above..”
30
40. It is true, as has been submitted on behalf of the unsuccessful candidates, that the
Shetty Commission had declined to impose a minimum cut-off in the viva voce
conducted for appointments to the Service by direct recruitment. The Shetty
Commission appears to have been impelled to do so to avoid an element of
subjectivity. 15 Based on this, the unsuccessful candidates sought to urge that the
same rationale must apply to the viva voce which was held in the normal process of
promotion.
41. Now, it is true that certain recommendations of the Shetty Commission in regard to
the improvement of the pay scales of the judicial officers were accepted by this Court
in the decision of this Court in All India Judges’ Association (supra). However,
there was no specific finding in paragraphs 27 and 28 of the All India Judges’
Association (supra) in regard to whether a cut-off should be imposed for
recruitment by way of regular promotion. The Court had merely remarked that “there
should be an objective method of testing the suitability of the subordinate
judiciary” 16, without making any observation about the desirability or otherwise of
minimum cutoffs for viva voce generally. We do not read the decision of this Court
in All India Judges’ Association (supra) as precluding the High Court from doing
so based on the exigencies of the Service in the State. In any case, based on the
discussion above, the three modes of recruitment have been reasonably classified
and different requirements have been prescribed for each. As such, what may or
may not have been held in respect of the viva voce in direct recruitments may not
necessarily apply to the viva voce requirement in recruitments through promotions.
15 Shetty Commission Report, [10.97]
16 All India Judges’ Association (supra), [27].
31
42. It is important to bear in mind that the Higher Judicial Services require the selection
of judicial officers of mature personality and requisite professional experience. In-
service judicial officers are expected to have a greater familiarity with the law and
the procedure based on their experience as judicial officers. While an objective
written examination can be the best gauge of the legal knowledge of a candidate,
the viva voce offers the best mode of assessing the overall personality of a
candidate. In Lila Dhar v. State of Rajasthan, 17 this Court noted the importance of
giving necessary weightage to the interview test in the following words:
“6. Thus, the written examination assesses
the man’s intellect and the interview test the man
himself and “the twain shall meet” for a proper selection.
If both written examination and interview test are to be
essential features of proper selection, the question may
arise as to the weight to be attached respectively to
them. In the case of admission to a college, for instance,
where the candidate’s personality is yet to develop and
it is too early to identify the personal qualities for which
greater importance may have to be attached in later life,
greater weight has per force to be given to performance
in the written examination. The importance to be
attached to the interview-test must be minimal. That
was what was decided by this Court
in Periakaruppan v. State of Tamil Nadu [(1971) 1 SCC
38 : (1971) 2 SCR 430] , Ajay Hasia v. Khalid Mujib
Sehravardi [(1981) 1 SCC 722; 1981 SCC (L&S) 258 :
AIR 1981 SC 487] and other cases. On the other hand,
in the case of services to which recruitment has
necessarily to be made from persons of mature
personality, interview test may be the only way,
subject to basic and essential academic and
professional requirements being satisfied. To
subject such persons to a written examination may
yield unfruitful and negative results, apart from its
being an act of cruelty to those persons. There are,
of course, many services to which recruitment is made
from younger candidates whose personalities are on
the threshold of development and who show signs of
great promise, and the discerning may in an interview-
test, catch a glimpse of the future personality. In the17 (1981) 4 SCC 159
32case of such services, where sound selection must
combine academic ability with personality promise,
some weight has to be given, though not much too great
a weight, to the interview-test. There cannot be any rule
of thumb regarding the precise weight to be given. It
must vary from service to service according to the
requirements of the service, the minimum qualifications
prescribed, the age group from which the selection is to
be made, the body to which the task of holding the
interview-test is proposed to be entrusted and a host of
other factors. It is a matter for determination by experts.
It is a matter for research. It is not for courts to
pronounce upon it unless exaggerated weight has been
given with proven or obvious oblique motives. The
Kothari Committee also suggested that in view of the
obvious importance of the subject, it may be examined
in detail by the Research Unit of the Union Public
Service Commission.”
43. In Taniya Malik v. Registrar General of the High Court of Delhi, 18 the petitioners
challenged the prescription of minimum cut-off marks for the viva voce during the
selection process of the Delhi Judicial Service Examination 2015. A two-Judge
Bench of this Court declined to accept the challenge of the petitioners on the ground
that “it is desirable to have the interview and it is necessary to prescribe minimum
passing marks for the same when the appointment in the higher judiciary to the post
of District Judge is involved.” The court further observed that the interview is the
best method of judging “the performance, overall personality and the actual working
knowledge and capacity to perform otherwise the standard of judiciary is likely to be
compromised.”
44. In the present case, the High Court has come to the conclusion that apart from
seeking proficiency in the substantive knowledge of law, based on the written test,
in-service judicial officers must possess communication and other skills which would
18 (2018) 14 SCC 129
33
emerge in the course of an interview. We must be mindful of the fact that the
interview in such cases is not being held at the very threshold of the service, while
making recruitments at the junior-most level. Rather, the interview is being held to
fill up a senior position in the District Judiciary, that of an Additional District and
Sessions Judge. Such officers, based on their prior experience, must be expected
to demonstrate a proficiency in judicial work borne from their long years of service.
The purpose of the interview for officers in that class is to assess the officer in terms
of the ability to meet the duties required for performing the role of an Additional
District and Sessions Judge. Consequently, there would be a reasonable and valid
basis, if the High Court were to do so, to impose a requirement of a minimum
eligibility or cut-off both in the written test and in the viva voce separately.
ii. The Rules can be supplemented to fill in gaps
45. That leads us to the analysis of the provisions of Rule 6, on the one hand, and Rule
8, on the other. As we have already noticed, Rule 6(1)(a) provides for promotion to
65% of the posts to the Higher Judicial Service on the basis of the principle of merit-
cum-seniority and the passing of a suitability test. The principle of merit-cum-
seniority is an approved method of selection where merit is the determinative factor
and seniority plays a less significant role. 19 Where the principle of ‘merit-cum-
seniority’ is the basis, the emphasis is primarily on the comparative merit of the
judicial officers being considered for promotion. Resultantly, even a junior officer
who demonstrates greater merit than a senior officer will be considered for
promotion.
19 B V Sivaiah v. K. Addanki Babu, (1998) 6 SCC 720
34
46. Through their letter dated 02 March 2023, the State Government raised an objection
to the recommendations made by the High Court. The State requested the High
Court to “clarify the non-recommendation” of certain officers who were higher in
seniority to the officers recommended by the High Court. While as an abstract
proposition, promotion of judicial officers on the basis of seniority alone may impart
objectivity to the entire process, this Court has also cautioned against using seniority
as the sole criterion for promotion in such cases. The Higher or Superior Judicial
Service is a gateway to eventual appointments to the High Court. Steps may
legitimately be taken by the High Court to ensure that appointments to the higher
echelons of the judiciary does not become a parade of mediocrity.
47. In Sant Ram Sharma v. State of Rajasthan, 20 a Constitution Bench of this Court
held that consideration of merit along with seniority in the procedure of promotion is
not violative of Article 14 and 16 of the Constitution. It was also observed:
“9. […] The question of proper promotion policy
depends on various conflicting factors. It is obvious that
the only method in which absolute objectivity can be
ensured is for all promotions to be made entirely on
grounds of seniority. That means that if a post falls
vacant it is filled by the person who has served longest
in the post immediately below. But the trouble with the
seniority system is that it is so objective that it fails
to take any account of personal merit. As a system
it is fair to every official except the best ones; an
official has nothing to win or lose provided he does not
actually become so inefficient that the disciplinary
action has to be taken against him. But, though the
system is fair to the officials concerns, it is a heavy
burden on the public and a great strain on the efficient
handling of public business. […]”(emphasis supplied)
20 1967 SCC OnLine SC 16
35
48. According to Rule 6(1)(a), the inter-se merit of the judicial officers plays a greater
role in making promotions. The passing of a suitability test is a measure of
assessment of the merit of the judicial officers under consideration for promotion.
The passing of a suitability test, in other words, is complemented by the requirement
of observing the principle of merit-cum-seniority. Rule 8 particularly provides for the
procedure for promotion for “assessing and testing the merit and suitability” of the
judicial officers. It states that the High Court “may” hold a written objective test of 75
marks and viva voce of 25 marks in order to ascertain and examine the legal
knowledge and efficiency in the legal field of the judicial officers. It is important to
note that the use of the word “may” in Rule 8 confers discretion on the High Court
with respect to the conduct of the written objective test and viva voce. In comparison,
Rule 9, which lays down the procedure for a limited competitive examination while
implementing Rule 6(1)(b), uses the word “shall” in a mandatory sense. The use of
the word “may” in Rule 8 indicates that the High Court has certain discretion in terms
of the conduct of the written objective test and viva voce for promotion of judicial
officers in terms of Rule 6(1)(a).
49. Moreover, the Rules in the present case are entirely silent in regard to the
prescription of a minimum eligibility for clearing a competitive test, on the one hand,
and the viva voce, on the other hand. If the Rules were to specifically provide in a
given case that the criterion for eligibility would be on the combined marks of both
the written test and the viva voce, the matter would have been entirely different. 21
Rule 6(1)(a) and Rule 8 being silent as regards the manner in which merit and
21 P K Ramachandra Iyer v. Union of India, (1984) 2 SCC 141, [44]
36
suitability would be determined, administrative instructions can supplement the
Rules in that regard. This is not a case where the Rules have made a specific
provision in which event the administrative instructions cannot transgress a rule
which is being made in pursuance of the power conferred under Article 309 of the
Constitution. For instance, if the Rules were to provide that there would be a
minimum eligibility requirement only in the written test, conceivably, it may not be
open to prescribe a minimum eligibility requirement in the viva voce by an
administrative instruction. Similarly, if the Rules were to provide that the eligibility
cut-off would be taken on the basis of the overall marks which are obtained in both
the written test and the viva voce, conceivably, it would not be open to the
administrative instructions to modify the terms.
50. The appropriate authority cannot amend or supersede statutory rules by
administrative actions. However, it is open to it to issue instructions to fill up the gaps
and supplement the rules where they are silent on any particular point.22 Such
instructions have a binding force provided they are subservient to the statutory
provisions and have been issued to fill up the gaps between the statutory
provisions. 23
51. In K H Siraj v. High Court of Kerala, 24 this Court was called upon to determine the
validity of the decision of the High Court of Kerala in prescribing minimum marks for
the oral examination as a condition of eligibility for selection as Munsif Magistrate.
The relevant provision, that is, Rule 7 of the Kerala Judicial Service Rules 1991,
22 Sant Ram Sharma v. State of Rajasthan, 1967 SCC OnLine SC 16 [7]; State of Gujarat v Akhilesh C
Bhargav, (1987) 4 SCC 482, [7]
23 State of Uttar Pradesh v. Chandra Mohan Nigam, (1977) 4 SCC 345 [26];
24 (2006) 6 SCC 395
37
mandated the High Court to hold written and oral examinations and prepare a list of
candidates considered suitable for appointment to Category 2 posts. This Court held
that even though Rule 7 was silent on the question of minimum marks for oral
examination, it was open to the High Court to supplement the Rule:
“62. Thus it is seen that apart from the amplitude of the
power under Rule 7 it is clearly open for the High Court
to prescribe benchmarks for the written test and oral
test in order to achieve the purpose of getting the best
available talent. There is nothing in the Rules barring
such a procedure from being adopted. It may also be
mentioned that executive instructions can always
supplement the Rules which may not deal with every
aspect of a matter. Even assuming that Rule 7 did not
prescribe any particular minimum, it was open to the
High Court to supplement the rule with a view to
implement them by prescribing relevant standards in
the advertisement for selection.”
52. In the present case, the Rules are silent in regard to the manner in which the merit
or suitability would be determined. In view of the silence of the Rules, it is open to
the High Court in the exercise of its administrative authority to provide the modalities
in which merit or suitability would be determined.
iii. Sivanandan C T
53. Next, it would become necessary to dwell on a recent decision of the Constitution
Bench of this Court in Sivanandan C T (supra). The issue in that case pertained to
the validity of the selection process to the Higher Judicial Services through direct
recruitment conducted by the High Court of Kerala. The Kerala State Higher Judicial
Services Rules 1961 stipulated that the direct recruitment from the Bar shall be “on
the basis of aggregate marks/grade obtained in a competitive examination and viva
voce conducted by the High Court.” Thereafter in 2012, the High Court of Kerala
38
published its Scheme for the examination for recruitment of members of the Bar to
the Kerala Higher Judicial Service. The Scheme specifically provided that there shall
be no cut-off of marks in the viva voce. Following this, the High Court issued a
notification in 2015 inviting applications from qualified candidates for appointment
as District and Sessions Judges by direct recruitment from bar. The notification of
the High Court indicated that candidates who secured a minimum of 50% marks in
the written test (relaxed to 40% for SC/ST candidates) would qualify for the viva
voce. The notification also specified that the aggregate of marks in the written
examination and the viva voce would form the basis of the ultimate merit list. In view
of the notification, the High Court conducted the written examination and viva voce
of the qualified candidates. When the process of selection had commenced, all
candidates were put on notice of the fact that:
(i) The merit list would be drawn up on the basis of the aggregate marks
obtained in the written examination and viva voce;
(ii) Candidates whose marks were at least at the prescribed minimum in the
written examination would qualify for the viva voce; and
(iii) No cut-off was applicable in respect of the marks to be obtained in the viva
voce while drawing up the merit list in the aggregate.
54. After the conduct of the viva voce, the High Court decided to apply a minimum cut-
off in the viva voce as a qualifying criterion. Subsequently, the final merit list of
successful candidates was published. The decision of the High Court to prescribe a
minimum cut-off for the viva voce was challenged for being contrary to the statutory
39
rules which prescribed that the merit list shall be drawn up on the basis of the
aggregate marks obtained in the written examination and viva voce.
55. In the backdrop of these facts, this Court held:
“14. The decision of the High Court to prescribe a
cut-off for the viva-voce examination was taken by the
Administrative Committee on 27 February 2017 after
the viva-voce was conducted between 16 and 24
January 2017. The process which has been adopted by
the High Court suffers from several infirmities. Firstly,
the decision of the High Court was contrary to Rule
2(c)(iii) which stipulated that the merit list would be
drawn up on the basis of the marks obtained in the
aggregate in the written examination and the viva-voce;
secondly, the scheme which was notified by the High
Court on 13 December 2012 clearly specified that there
would be no cut off marks in respect of the viva-voce;
thirdly, the notification of the High Court dated 30
September 2015 clarified that the process of short
listing which would be carried out would be only on the
basis of the length of practice of the members of the
Bar, should the number of candidates be unduly large;
and fourthly, the decision to prescribe cut off marks for
the viva-voce was taken much after the viva-voce tests
were conducted in the month of January 2017.”
56. Moreover, this Court took note of the fact that subsequently the rules in the State of
Kerala were amended in 2017 to prescribe a cut-off of 35% marks in the viva voce
examination which was not the prevailing legal position when the process of
selection was initiated in that case. The above extract from the decision of this Court
in Sivanandan C T (supra) reveals that it was a cumulative set of factors set out in
paragraph 14 which have led to the ultimate determination. The statutory rules had
indicated in that case that the merit list would be prepared on the basis of the
aggregate marks in the written examination and the viva voce. The Scheme of the
High Court had specified that there would be no separate cut-off for the viva voce.
Moreover, the process of shortlisting, as prescribed, was to be on the basis of the
40
length of the service. Finally, the decision to prescribe a cut-off in the viva voce was
taken much after the test was conducted.
57. The facts as they stand in the present case are clearly in contrast to those contained
in Sivanandan C T (supra). As opposed to the Rules having made a specific
provision, the Rules were clearly silent in the present case. It is in this backdrop, in
the face of the silence of the statutory rules that the High Court had, in its initial Full
Court Resolution dated 29 January 2013, prescribed an overall cut-off of 50% of
combined marks in the written test and in the viva voce. The High Court, while
amending the text of its Full Court Resolution of 29 January 2013, had done so in
the exercise of the same administrative capacity which it had wielded while
formulating the original Resolution. Hence, the Resolution of the High Court dated
30 November 2021 cannot be faulted in that regard.
58. The unsuccessful candidates in the present case have further relied on Sivanandan
C T (supra) to contend that the absence of notice to the candidates about the
imposition of the minimum cut-off marks for the viva voce contravenes their
legitimate expectation. In Sivanandan C T (supra), this Court held that an individual
who claims a benefit or entitlement based on the doctrine of legitimate expectation
has to establish: (i) the legitimacy of the expectation; and (ii) that the denial of the
legitimate expectation led to a violation of Article 14. In Sivanandan C T (supra),
the statutory rules coupled with the Scheme of the High Court generated a legitimate
expectation that (i) the merit list would be drawn based on the aggregate of the total
marks received in the written examination and viva voce; and (ii) there would be no
minimum cut-off marks for the viva voce. However, in the present case neither the
statutory Rules, nor the High Court committed that there would be no cut-off marks
41
for the viva voce so as to give rise to such a legitimate expectation on behalf of the
petitioners. Furthermore, the decision of the High Court to apply the minimum cut-
off marks for the viva voce is grounded in legality, and therefore, cannot be faulted
for contravening the established practice.
iv. Articles 233, 234 and 235 of the Constitution of India
59. That leads us to the analysis of the provisions of Articles 233, 234 and 235 of the
Constitution. Clause (1) of Article 233 stipulates that appointment of persons to be
District Judges in the State and their posting and promotion shall be made by the
Governor in consultation with the High Court exercising jurisdiction in the State.
According to Article 234, appointments of persons other than District Judges to the
Judicial Service of a State are to be made by the Governor in accordance with the
rules made in that behalf after consulting the State Public Service Commission and
the High Court exercising jurisdiction in relation to the State. Control over the
“Subordinate Courts” under Article 235 is vested in the High Court. Article 235
provides that:
“The control over district courts and courts subordinate
thereto including the posting and promotion of, and the
grant of leave to, persons belonging to the judicial
service of a State and holding any post inferior to the
post of district judge shall be vested in the High Court,
but nothing in this article shall be construed as taking
away from any such person any right of appeal which
he may under the law regulating the conditions of his
service or as authorising the High Court to deal with him
otherwise than in accordance with the conditions of his
service prescribed under such law.”
42
60. These provisions have been dealt with in several decisions of this Court, including
in decisions of Constitution Benches. In the course of its judgment, the High Court
has elaborately dealt with several of these judgments.
61. In Chandra Mohan v. State of Uttar Pradesh 25, a Constitution Bench of this Court,
speaking through Chief Justice K Subba Rao, held that the constitutional mandate
under Article 233 is that the exercise of the power of appointment by the Governor
is conditioned by consultation with the High Court. The object of consultation is that
the High Court is expected to know better than the Governor the suitability of a
person belonging either to the Judicial Service or to the Bar for appointment as a
District Judge. The Court held that the mandate would stand disobeyed if the
Governor either did not consult the High Court at all or if it were to consult the High
Court or any other person in a manner not contemplated. The Court held that in case
the Governor consults an authority other than the High Court, it would amount to
indirect infringement of the mandate of the Constitution. In situations where the
Constitution sought to provide for more than one consultant, it did so (for e.g. Articles
124 (2), 217(1)). Impliedly, this Court held that the duty of consultation is intertwined
with the exercise of power itself, and such power can be exercised only in
consultation with the person or persons designated under the relevant provisions of
the Constitution. Hence, it was held that if the Rules empowered the Governor to
appoint a person as District Judge in consultation with a person or authority other
than the High Court, the appointment would not be in accordance with the provisions
of Article 233. The Court observed as follows:
25 (1967) 1 SCR 77
43“We are assuming for the purpose of these appeals that
the “Governor” under Art. 233 shall act on the advice of
the Ministers. So, the expression “Governor” used in the
judgment means Governor acting on the advice of the
Ministers. The constitutional mandate is clear. The
exercise of the power of appointment by the Governor is
conditioned by his consultation with the High Court, that
is to say, he can only appoint a person to the post of
district judge in consultation with the High Court. The
object of consultation is apparent the High Court is
expected to know better than the Governor in regard to
the suitability or otherwise of a person, belonging either
to the “judicial service” or to the Bar, to be appointed as
a district judge. Therefore, a duty is enjoined on the
Governor to make the appointment in consultation with a
body which is the appropriate authority to give advice to
him. This mandate can be disobeyed by the Governor in
two ways, namely, (i) by not consulting the High Court at
all, and (ii) by consulting the High Court and also other
persons. In one case he directly infringes the mandate of
the Constitution and in the other he indirectly does so, for
his mind may be influenced by other persons not entitled
to advise him. That this constitutional mandate has both
a negative and positive significance is made clear by the
other provisions of the Constitution. Wherever the
Constitution intended to provide more than one
consultant, it has said so: see Arts. 124(2) and 217(1).
Wherever the Constitution provided for consultation
of a single body or individual it said so: see Art. 222.
Art. 124(2) goes further and makes a distinction
between persons who shall be consulted and
persons who may be consulted. These provisions
indicate that the duty to consult is so integrated with
the exercise of the power that the power can be
exercised only in consultation with the person or
persons designated therein. To state it differently, if A is
empowered to appoint B in consultation with C, he will not
be exercising the power in the manner prescribed if he
appoints B in consultation with C and D.”
(emphasis added)
44
62. In matters of appointment of judicial officers, the opinion of the High Court is not a
mere formality because the High Court is in the best position to know about the
suitability of candidates to the post of District Judge. 26 The Constitution therefore
expects the Governor to engage in constructive constitutional dialogue with the High
Court before appointing persons to the post of District Judges under Article 233. In
State of Haryana v Inder Prakash Anand HCS 27, a Constitution Bench of this Court
speaking through Chief Justice AN Ray observed that the High Court is acquainted
with the capacity of work of the members already in service. Underlining the
significance of the High Court’s ‘control’ over the appointments under Article 235, it
was held that the High Court’s opinion will have a binding effect on the Governor
according to the constitutional scheme. This Court noted as follows:
“18. The control vested in the High Court is that if
the High Court is of opinion that a particular judicial
officer is not fit to be retained in service, the High Court
will communicate that to the Governor because the
Governor is the authority to dismiss, remove, reduce in
rank or terminate the appointment. In such cases it is
the contemplation in the Constitution that the
Governor as the head of the State will act in
harmony with the recommendation of the High
Court. If the recommendation of the High Court is
not held to be binding on the State consequences
will be unfortunate. It is in public interest that the State
will accept the recommendation of the High Court. The
vesting of complete control over the subordinate
Judiciary in the High Court leads to this that the
decision of the High Court in matters within its
jurisdiction will bind the State. “The Government will
act on the recommendation of the High Court. That is
the broad basis of Article 235.””(emphasis added)
26 Chandramouleshwar Prasad v. Patna High Court, (1969) 3 SCC 56
27 (1976) 2 SCC 977
45
63. In State of Bihar v Bal Mukund Sah 28, another Constitution Bench held that the
constitutional scheme guaranteeing the independence of the Judiciary and the
separation of power between the Executive and the Judiciary as basic features of
the Constitution must be borne in mind. It was held that while Article 309 of the
Constitution creates a permissible field of regulation by the Legislature, regarding
conditions of service of already recruited judicial officers, it does not mean that the
High Court’s opinion can be overlooked. The process of appointments to the District
Judiciary was held to be insulated from interference by way of the ‘complete code’
for the purpose laid down under Articles 233 and 234. This intention to insulate the
process, the Court observed, is clear from the fact that these provisions are not
subject to any other law enacted by the Legislature.29 The Constitution intended to
create a complete and insulated scheme of recruitment to the District Judiciary.
Speaking in the context of the rules under Articles 234, 235 and 309 specifically, this
Court observed that consultation with the High Court was indispensable.
64. The Court observed:
“58… It is now time for us to take stock of the situation.
In the light of the constitutional scheme guaranteeing
independence of the Judiciary and separation of
powers between the Executive and the Judiciary, the
Constitution-makers have taken care to see by enacting
relevant provisions for the recruitment of eligible
persons to discharge judicial functions from the grass-
root level of the Judiciary up to the apex level of the
District Judiciary, that rules made by the Governor in
consultation with the High Court in case of
recruitment at grass-root level and the
recommendation of the High Court for
appointments at the apex level of the District
Judiciary under Article 233, remain the sole28 (2000) 4 SCC 640
29 ibid at para 35.
46
repository of power to effect such recruitments and
appointments. …For judicial appointments the real
and efficacious advice contemplated to be given to the
Governor while framing rules under Article 234 or for
making appointments on the recommendations of the
High Court under Article 233 emanates only from the
High Court which forms the bedrock and very soul of
these exercises. It is axiomatic that the High Court,
which is the real expert body in the field in which
vests the control over the Subordinate Judiciary,
has a pivotal role to play in the recruitments of
judicial officers whose working has to be thereafter
controlled by it under Article 235 once they join the
Judicial Service after undergoing filtering process
at the relevant entry points. It is easy to visualise
that when control over the District Judiciary under
Article 235 is solely vested in the High Court, then
the High Court must have a say as to what type of
material should be made available to it both at the
grass-root level of the District Judiciary as well as
the apex level thereof so as to effectively ensure the
dispensation of justice through such agencies with
the ultimate object of securing efficient
administration of justice for the suffering litigating
humanity. Under these circumstances, it is impossible
to countenance bypassing of the High Court either at
the level of appointment at the grass-root level or at the
apex level of the District Judiciary. The rules framed
by the Governor as per Article 234 after following
due procedure and the appointments to be made by
him under Article 233 by way of direct recruitment
to the District Judiciary solely on the basis of the
recommendation of the High Court clearly project a
complete and insulated scheme of recruitment to
the Subordinate Judiciary. This completely insulated
scheme as envisaged by the Founders of the
Constitution cannot be tinkered with by any outside
agency dehors the permissible exercise envisaged by
the twin Articles 233 and 234.
(emphasis added)
47
65. In numerous decisions, this Court has emphasized the importance of the control
which is wielded by the High Courts over the District Judiciary. 30 Undoubtedly, it is
equally well-settled that when the Rules under Article 309 hold the field, these Rules
have to be implemented. Where specific provisions are made in the Rules framed
under Article 309, it would not be open to the High Court to issue administrative
directions either in the form of the Full Court Resolution or otherwise, that are at
inconsistent with the mandate of the Rules. On the other hand, in cases such as the
one at hand, where the Rules were silent, it is open to the High Court to issue a Full
Court Resolution. The High Court did so initially on 29 January 2013, but modified
the Resolution on 30 November 2021 by prescribing that candidates for appointment
to the Higher Judicial Service should have a minimum of 50% both in the written test
as well as in the viva voce independently. The wisdom of the prescription is clear. A
candidate should not just demonstrate the ability to reproduce their knowledge by
answering questions in the suitability test, but must also demonstrate both practical
knowledge and the application of the substantive law in the course of the interview.
The Rules being silent, it was clearly open to the High Court to prescribe such a
criterion as it did in 2013, when the 50% cutoff was prescribed on aggregate scores
and also, in 2021, when the 50% cutoff was prescribed on the written test scores
and the viva voce separately.
30 State of West Bengal v. Nripendra Nath Bagchi, 1965 SCC OnLine SC 22; High Court of Punjab and
Haryana v. State of Haryana, (1975) 1 SCC 843, High Court of Judicature for Rajasthan v. PP Singh, (2003) 4
SCC 239.
48
66. We are in agreement with the High Court that the State Government travelled
beyond the remit of the consultation with the High Court by referring the matter to
the Union Government. Any issue between the High Court and the State
Government should have been ironed out in the course of the consultative process
within the two entities. The State Government was bound to consult only the High
Court in the manner elaborated by the abovementioned judgements. Any other
exercise de hors such consultation would not be in accordance with the scheme of
the Constitution.
D. Conclusion
67. We have, therefore, come to the conclusion that the State Government was plainly
in error in finding fault with the process which is being followed by the High Court
and in concluding that the decision of the High Court amounted to an arbitrary
exercise of power. Though the Solicitor General pointed out that the expressions
“arbitrary” and “betrayal of trust” were used in the communication of the State
Government placing reliance on an earlier judgment of this Court, we would leave
the matter at that while affirming the conclusion of the High Court.
68. For the above reasons, we hold that the impugned judgment and order of the High
Court dated 20 December 2023 does not suffer from any legal or other infirmity. The
appeals shall accordingly stand dismissed.
49
69. Pending applications, if any, stand disposed of.
..…..…….………..……………….………..CJI.
[Dr Dhananjaya Y Chandrachud]
…..…..…….………..……………….………..J.
[J B Pardiwala]
…..…..…….………..……………….………..J.
[Manoj Misra]
New Delhi;
February 13, 2024
-S-