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

The Supreme Court on Monday (February 12) asked if a High Court is required to consult the State Government for laying down the criteria for the selection of District Judges.This question arose in a batch of petitions challenging the direction issued by the Punjab and Haryana High Court to the Haryana Government to accept the recommendations to appoint 13 District Judges. The bone of the contention in the case is regarding the requirement laid down by the High Court that the candidates should secure a minimum of 50% in the viva-voce as well. The State Government objected to this criteria on the ground that the High Court unilaterally set the cut-off without consulting the State as per Article 233 of the Constitution.Article 233(1) provides :Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.Solicitor General of India Tushar Mehta, appearing for the State of Haryana, argued that the 'consultation' with the State was indeed mandated under Article 233(1) of the Constitution. He opined, “My respectful reading is that 233(1) mandate consultation. Whether consultation or concurrence, we may not go into it …but consultation is a mandate of the Constitution.”At this point, the bench led by Chief Justice of India DY Chandrachud asked if the State was required to be consulted by the High Court for laying down the criteria.“But laying down the yardsticks for carrying out a process is not an appointment and promotion," CJI observed.To which the SG replied, “..nothing remains if the criteria is to be fixed without consultation ….appointment and promotion means anything that forms part of that process because the appointing authority is the Governor.”The High Court had also criticised the State Government for seeking legal opinion from the Union Government in the matter, observing that it "would amount to a serious assault on the independence of the functioning of the High Court."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...

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

Anmol Kaur Bawa

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