The Supreme Court of India
On July 12, the Supreme Court of India held the Kerala High Court’s process followed to fix the cut-off marks on the basis of viva-voce for the selection of District Judges in March 2017 as illegal. The court held that the cut-off fixed by the Kerala High Court after conducting the viva-voce was “manifestly arbitrary.”
However, the apex court refrained from invalidating the appointment of selected candidates as six years have passed since their appointment, during which the officers have performed judicial functions. “Unseating them would be harsh and would result in a situation where higher judiciary would lose the services of duly qualified candidates who have gained experience over the last six years,” the court said.
The Supreme Court’s Constitution Bench, comprising Chief Justice DY Chandrachud, Justice PS Narasimha, Justice Hrishikesh Roy, Justice Pankaj Mithal and Justice Manoj Misra, was hearing a batch of petitions filed by eleven candidates aspiring to become District Judges in Kerala following the 2015 notification. The court was hearing whether authorities could change the selection norms whilst in the middle of the process.
The Constitution Bench noted that the provisions of the Kerala State Higher Judicial Services Special Rules, 1961, provided that an aggregate of the written test and the viva-voce would be considered for the appointment of judges, however, the exam scheme or the notification did not stipulate cut-off for viva voce. Thus, the apex court held the process to be “ultra-vires.”
Rules 2(c)(iii) of the Special Rules, 1961, provides that 25 per cent of the appointments for District and Sessions Judges must be made through direct recruitment from the bar “on the basis of aggregate marks/grades obtained in the competitive examination and viva voce conducted by the High Court.” Thus, the merit list prepared under the rule should have been based on the aggregate marks, however, there was no provision for cut-off marks to be applicable for viva-voce for preparing the merit list.
The petitioner’s counsel, Advocate PV Dinesh, argued that if the selections were made in consonance with the 1961 Rules, taking into account the aggregate marks of the aspirants, then the petitioners would have been selected as they had a higher aggregate score compared to the selected candidates. The counsel further submitted that the petitioners were not informed of the cut-off before the viva voce and that the same was fixed after it had taken place.
“One point in your favour and one point against you – I will put you both. Point in your favour is that the committee does not refer to Rule 2(c) at all. It seems to have missed that Rule 2(c) had provided for aggregate marks. That seems to be in your favour. One point against you now. If you are right, then, there could not have been the fixation of minimum marks in the written also. The fixation of minimum marks in the written exam did not come under Rule 2(c). It came under the notification of September 2015. Technically, if you are right, the High Court could not have even fixed minimum marks for even written exams. Because the rule was silent. Rule said that just aggregate both and draw up a merit list…There also there may be an answer which is that the fixation of minimum marks for the written which took place on 30 September 2015 was before the commencement of selection process,” the Chief Justice remarked.
The petitioner’s counsel clarified that the administrative decision was “much later” after the viva was done. “The administrative committee decision was much later, after the viva was done. Viva was in January,” the petitioner’s counsel submitted.
The Chief Justice attempted to explain the Kerala High Court’s rationale behind such a decision and said, “When you sit in the selection committee, you are looking at the best interest of the institution. The motive is very very laudable. The question is whether it is lawful. Sometimes what happens is that the High Court thinks that look this is the crop which we are taking in the judiciary, that is what weighs with them.”
However, Senior Advocate Chitamberesh submitted that the favoured candidates scored low in the written examination, however, their marks were jacked up in the viva. The Senior Advocate said, in response to the Chief Justice’s remarks, “The cream is to be included, no doubt but not after the event. They had the tabulated marks before them. See the favoured candidates, they got low marks in the written examination, jacked up by the viva. Please see the scheme of the examination which is very relevant.”
The petitioner’s counsel, Advocate Haripriya Padmanabhan, submitted that the 11 petitioners were beyond the age of 45, and thus, could no longer write the Judicial Services examination. She contended, in the interests of justice, that the petitioners are appointed as District Judges against existing vacancies due to the illegality committed in the selection process and no fault lies with the petitioners.
The Kerala High Court’s counsel, Senior Advocate Dama Seshadri Naidu, argued that the High Court took the decision consciously as most aspirants lack practical experience. The counsel argued that the aspirants score high marks in the written examination, after going to coaching institutions, but when it comes to viva voce to test practical knowledge, “they are zero.”
“The problem is this that in the overall interest and the efficacy of the adjudication of the lower levels, the district levels, we had to take this step consciously, all the full court unanimously. But the difficulty is that a tendency has grown recently…Most of the aspirants never attend courts, never practice. They go to coaching institutions. They get trained and then they score really high in the examination. But when they face the viva voce, which tests a vital part of their practical knowledge, they are zero,” the counsel argued before the Supreme Court.
However, the court rejected the Kerala High Court’s submissions. The Chief Justice remarked, “Nobody is challenging the desirability of having cut-off of a minimum marks in the viva. But you must then specify it in the rule which you have subsequently done in 2017. The scheme specifically says that the shortlisting is made on the basis of years of practice in the bar if the number of the candidates is unusually large.”
Kerala High Court’s Process is Contrary to Applicable Rules
The Constitution Bench further held that the Kerala High Court’s process followed for the selection of candidates as District Judges was contrary to the applicable Rules. The Chief Justice remarked, “Rule 2(c)(3) specifically says that the selection will be made on the basis of the aggregate marks which are obtained in the written test and the viva. If that is applied, what you have basically done is that, forget the fact that the decision was taken midway through the selection process, we will leave that aside for a moment. What you did was that you said that by the full court decision, that the minimum cut-off which is been prescribed for the written exam should also be applied to the viva. As a result of this, what happens is that those who get eliminated on the ground that they have not got the minimum cut-off in the viva would have made it if the selection was made on the aggregate of marks in the written examination and the viva. In other words, what you have done is plainly contrary to Rule 2(c)(3).”
“Four factors are clearly against you- 1. It is contrary to the rule; 2. The scheme specifically provided a distinct method which is to be followed and cut-off marks was not permissible; 3. The notification said that if there are overwhelming numbers, then we will only go by the number of years in the bar; 4. This decision of the administrative committee is actually after the interviews were over,” Justice PS Narasimha added.
The Constitution Bench further noted that the Kerala High Court had published an examination scheme in 2012, which provided that there would be no cut-off marks for the viva. The court further noted that the 2015 notification provided that the aggregate of the written examination and the viva would form the basis of the merit list.
The court said, “This is not the case where rules of High Court were silent. It is well settled that where statutory rules are silent, it can be supplanted by administrative order consistent with the objective of the Act. But here, it was clear that the merit list would be the aggregate of written and viva voce and clarified that there would be no cut off for the viva. We conclude that decision of the High Court was ultra vires the rules of 1961 and is manifestly arbitrary.”
However, the Supreme Court said that the selected candidates are now working as judicial officers and performing their functions for the past six years. Thus, it would be contrary to the public interest to unseat these judicial officers since they have gained experience as officers as well. The court said unseating the selected candidates would be harsh and result in a situation where the higher judiciary would lose services of experienced judicial officers.
“Having said this, question which now arises before the court is with regards the relief which can be granted to petitioners. The final list of successful candidates was issued on 6 March 2017. The candidates who have been selected would have now been working as district judges for about 6 years. In the meantime, all the petitioners before the court have not functioned in judicial office. At this lapse of time, it may be difficult to direct the unseating of the candidates who have performed their duties. Unseating them at this stage would be contrary to public interest since they had gained experience as judicial officers in the meantime. While the grievance of the petitioners is that if the aggregate of marks in written examination and viva voce was taken into account, they would have ranked higher, equally, we cannot lose sight of the fact that all the selected candidates are otherwise qualified for judicial office and have been working for a long period of time. Unseating them would be harsh and would result in a situation where higher judiciary would lose the services of duly qualified candidates who have gained experience over the last six years,” the court said.
“For these reasons, we have come to the conclusion that it would not be possible to direct the induction of the petitioners to the high judicial services at the present stage. Many of the petitioners would have since joined the bar and would be in active practice. It needs to be clarified that their having failed to gain selections in the process which was initiated on 30 September 2015 is not a reflection either on their merits or abilities and shall not come in the way of them being considered for any other office, judicial or otherwise, in the future,” the Constitution Bench concluded.
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