Should High Court Consult State Govt To Lay Down Criteria For Selection Of District Judges? Supreme Court Asks Haryana Govt

The bench comprising CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra was hearing the issue of setting 50% cut-off in the viva voce by the Punjab and Haryana High Court for candidates belonging to the 65% quota for selection through merit-cum-seniority under promotion procedure outlined by S.8 read with S.6(1)(a) of Haryana Superior Judicial Service Rules, 2007.

The court was apprised that as per the 2013 Resolution of the Promotion Committee had set only a 50% cut-off for the written exam and 50% as the overall aggregate without any cut-off ascribed for viva voce. The Full Court Resolution dated 30.11.2021 however, sets a 50% cut-off for the interview of civil judges appearing for promotion.

Senior Advocate PS Patwalia, appearing for a candidate challenging the criteria, raised essentially two concerns, firstly that the Punjab and Haryana Superior Judiciary Rules were never amended to have a 50% cut-off at the stage of the interview; secondly, the cut-off is not there at the stage of interview for meritorious candidates and hence making it discriminatory for those in the 50% quota and thirdly, these aspects were not disclosed to the candidates and only came to light subsequently through RTI disclosures.

Taking note of the same the CJI summarised the contention of Mr Patwalia as “ So the first point is on discrimination, if you do not have a minimum cut-off for the interview for direct recruitment and for people who are in the limited competitive examination, why have it for in-service candidates who are actually more senior people. Second, this was not disclosed when the process was initiated.

Mr Patwalia, giving the example of the meritorious achievements of his client, i.e. Mrs Kavita Kamboj further added, “ If you give a latitude of veto, actually this is the only quota where there should not be such a power. It may be introduced in others where merit is to prevail over everything else…”

To which the CJI rebutted, “The importance of having merit in this... is because they have the largest chunk of the promotion. Out of 100%, 65% are these people …these people go higher also.”

The senior counsel also cited the recent Supreme Court judgment which found fault with the Jharkhand High Court for altering the selection criteria midway.

Senior Advocate Mr Shyam Divan appearing for one of the petitioners, submitted that as far as Punjab is concerned, the inter se senior is to eventually be determined on the basis of their original appointment, thus the candidates from Punjab would not be suffering from any kind of disadvantage in seniority as opposed to those in Haryana.

Reliance was further placed on the decision of the Supreme Court in the constitution bench case of Sivanandan CT v. High Court of Kerala to emphasize that the present decision of the High Court falls foul of the principle of legitimate expectancy, fair action, regularity, predictability and certainty as aspects of good governance.

Another point raised by Mr Divan was how ideally the ACRs of the in-service candidates should be given more importance than the performance in viva voce when it comes to evaluating meritocracy. He explained, “ If we have a look at Rule 8(2) (Haryana Rules 2007) - take into consideration Annual Confidential Reports of the preceding five years of the officer concerned- I think this is where the merit comes. So I am not saying that the viva voce is irrelevant for the purpose of merit, that will be given due weightage in the overall perspective…this is not just a written exam, this is a 5-year track record”

Mr Divan asserted that going by the present cut-off requirements in the viva voce, may lead to misuse of the criteria.

“ See on balance, the rule is silent, to introduce this type of criteria it could be liable for misuse….suddenly, this 12.5 marks which you don't get in your viva voce exam, it can suddenly kick over”

Senior Advocate Mr Gopal Sanakaranarayanan also referred to the observations in Sivanandan CT to establish how the non-disclosure of the 50% cut-off in viva voce was violative of the principles upheld by the Apex Court.

On the aspect of the weightage to be given to the interviews in such selections, Solicitor General Mr Tushar Mehta contended that “The weightage given to the interview should be as minimum as possible because otherwise, that discretion will lead to arbitrariness”.

Appearing on behalf of the Punjab and Haryana High Court, Senior Advocate Nidhesh Gupta submitted at length the following points:

(1) Rules when silent can be supplemented- the prayers of the petitioners do not mention any concerns with respect to the 2007 Rules and only limit themselves to the order of the Full Court Resolution. He submitted, “ There is no concern at all with any amendment in the rule”. Referring to the Haryana Superior Judiciary Rules, Mr Gupta said that there is no specific rule qua aggregation and is silent on the minimum requirements.

(2) Not having any set cut-off for the viva voce encourages mediocrity in the judiciary as anyone could cram up answers and clear the written examination. Giving the example of there being a difference of marks between the topper of the exam and Mr Patalia's client, Mr Gupta stated: “So to say that I have done well written and to sit back and relax, I do not think that it is believable or realistic at all.”

(3) The High Court is the sole repository of powers in promotions and recruitment for district judiciary - concerning the arguments on the mandate of consulting with the state government, Mr Gupta mentioned how it is a settled law by the Supreme Court that the High Court under Article 233 is the sole repository when it comes to effecting the promotions and appointments for candidates in district judiciary.

(4) Having a minimum cut-off for interviews for District Judges is a well-settled principle by the Apex Court - Mr Gupta placed reliance upon All India Judges v. Union of India and additionally argued, “ In any case, it is well settled that Article 14 has to be by way of class. Your whole class is a class in itself. Is it a bad classification? No, it is not. Your 65% is a category in itself. Merely because a certain thing has been done qua this category, and is not done in others, does not mean that it is arbitrary, or does not satisfy the test of classification. Otherwise, they will say that why are these 75 marks there (for merit cum promotion) and 750 marks for the others (direct recruitments)...it can never be the case, it is a different category, and the test is different.”

The Court will continue the hearing today. On the previous hearing date, the bench had remarked that the setting of a minimum cut-off for interviews will ensure that more competent persons will enter the district judiciary.

Background

The Punjab & Haryana High Court in December directed Haryana to accept the recommendations of the High Court made on appointing 13 judicial officers as additional district and session judges and give necessary effect to it "within two weeks."

These observations were made while hearing the plea filed by the Haryana Civil judges (senior division) and CJMs who sought appointment to the district judiciary challenging the State's decision rejecting the High Court's recommendations for the promotion of 13 judicial officers. The judicial officers who were not recommended for promotion by the high court also filed a petition challenging the recommendations.

Case Details : Dr.Kavita Kamboj v. High Court of Punjab and Haryana and others Diary No(s).508/2024