Supreme Court Says Kerala HC Erred In Fixing Cut-Off For Viva-Voce In 2017 District Judge Selection; Refrains From Unseating Selected Candidates

A Constitution Bench of the Supreme Court on Wednesday held as illegal the process followed by the Kerala High Court in fixing a cut-off mark on the basis of viva-voce for the selection of District Judges in March 2017. The Court noted that cut-off was fixed by the High Court after the conduct of the viva voce, which was "manifestly arbitrary".The Supreme Court further noted that the provisions of the Kerala State Higher Judicial Services Special Rules, 1961 (the 1961 Rules) provided that aggregate of the written test and the viva voce would be taken into consideration for appointment. The exam scheme and the recruitment notification also did not stipulate any cut-off for viva-voce. Hence, the process was held to be "ultra-vires" the rules.However, the Court refrained from invalidating the selection of candidates in view of the fact that six years have elapsed since their appointment, during which the appointed candidates 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 observed in the order.At the same tame, in a succour to the petitioners, the Court clarified that their failure to get selected will not be treated as a reflection on their merit and that it will not come in their way in future selections.A bench comprising Chief Justice of India 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 be selected as District judges in the State of Kerala in pursuance of a 2015 notification. The Constitution Bench was hearing a reference on the issue whether appointing authorities can change the norms of selection during the middle of the process. The reference was made in view of conflicting judgments on the point "whether the rules of the game can be changed after the game has begun". The Kerala cases were also listed along with the main petitions in the reference. The bench did not address the referred issue in the Kerala cases, since they were capable of being decided on the basis of the provisions of the 1961 Rules. The petitioners were represented by Advocate PV Dinesh, Advocate Haripriya Padmanabhan, Advocate Ragenth Basant, and Senior Advocate V Chitambaresh, assisted by Advocate-on-Record Lakshmeesh S Kamath. It was the argument of the petitioners that the selections for district judiciary were to be made in accordance with Rule 2(c)(iii) of the 1961 Rules as per which no cut off marks were to be set for the viva voce.Selection Process as per the 1961 RulesThe 1961 Rules, framed under Articles 233 and 309 of Constitution of India, provide for the constitution of the service into three categories, namely, a) Supertime Scale; b) Selection Grade District and Sessions Judges and; c) District and Sessions Judges including Additional Judges. The dispute in the present case pertained to the third category, that is, District and Sessions Judges, the appointment of which is carried out as per Rule 2(c).Rule 2(c)(iii) stipulates that 25% of the courts in the category of District and Sessions Judges including Additional Judges shall be filled by 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 created as per Rule 2(c)(iii) was required to be based on an aggregate of written examination and the viva voce. There was no provision for cut off marks to be applicable in viva voce for the purpose of preparing the merit list. Submissions of the PetitionersWhile taking the court through the Rules of 1961, Advocate PV Dinesh argued that if the selection was made in accordance with Rule 2(c)(iii), the petitioners would have been selected as they had more aggregate marks than selected candidates. He stated that the fixing of cut-off marks was not informed to the petitioners and was carried out after the viva voce had already taken place. He also relied upon the findings of the Shetty Commission which had specified that there cannot be a cut-off for viva-voce. He further argued that the case of Tej Prakash Pathak & Ors v. Rajasthan High Court (2013) 4 SCC 540 would not be applicable in the present case as the issue in reference in the matter was different.To his submissions, CJI DY Chandrachud remarked–"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 ...

Supreme Court Says Kerala HC Erred In Fixing Cut-Off For Viva-Voce In 2017 District Judge Selection; Refrains From Unseating Selected Candidates

Padmakshi Sharma

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