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)

2

J U D G M E N T

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”

4

the High Court.

5. In terms of Rule 6

2

, 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 Committee

4

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

10

recommending 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

11

State 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

12

ground 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, 20 07 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

13

take 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

16

of 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

17

of 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

19

marks 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 l anguage paper of 100 marks and a g eneral

knowledge paper of 50 marks. I n 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

22

January 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

24

competitive 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 l aw papers, a language paper and a paper in g eneral

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 the

17

(1981) 4 SCC 159

32

case 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 sole

28

(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-