2023 INSC 709 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

Writ Petition (Civil) No 229 of 2017

Sivanandan C T and Others … Petitioners

Versus

High Court of Kerala and Others … Respondents

W I T H

Writ Petition (Civil) No 379 of 2017

Writ Petition (Civil) No 618 of 2017

Writ Petition (Civil) No 232 of 2017

2

J U D G M E N T

Dr. Dhananjaya Y Chandrachud, CJI

Table of Contents

A. Background ................................................................................................... 3

B. Submissions .................................................................................................. 7

C. Analysis ......................................................................................................... 9

i. The decision of the High Court was ultra vires the 1961 Rules ................... 9

ii. Legitimate Expectation .............................................................................. 12

a. Doctrine of legitimate expectation under common law ........................... 13

b. Doctrine of legitimate expectation under Indian law ............................... 16

c. Substantive Legitimate Expectation ....................................................... 18

d. Consistency and predictability as aspects of non- arbitrariness ............. 26

D. Application of the doctrine of legitimate expectation ................................ 30

i. What has the High Court committed itself to? ........................................... 30

ii. Whether the High Court has acted unlawfully in relation to its commitment?

31

iii. What should this Court do? ....................................................................... 34

E. Conclusions ................................................................................................... 35

3

A. Background

1. On 14 November 2017, a Bench of two Judges of this Court referred a batch

of four petitions, which invoked the jurisdiction of this Court under Article 32

of the Constitution, to the Constitution Bench in Sivanandan C T v. High

Court of Kerala

1

. Eleven petitioners are before this Court, all of whom are

candidates aspiring to be selected as District Judges in the Higher Judicial

Service of the State of Kerala.

2. In the State of Kerala, the Kerala State Higher Judicial Services Special Rules

1961

2

came into force on 11 July 1961. These Rules have been framed under

Articles 233 and 309 of the Constitution. The 1961 Rules provide for the

constitution of the Higher Judicial S ervice into three categories:

(i) Super-time Scale District and Sessions Judge;

(ii) Selection Grade District and Sessions Judge; and

(iii) District and Sessions Judge, including Additional District Judge.

3. The dispute in the present batch of cases pertains to the third category noted

above. Rule 2(c) provides for the method of appointment of the third category.

Rule 2(c)(iii) stipulates that 25% of the posts in the category shall be filled by

direct recruitment from the Bar “on the basis of aggregate marks/grade

1

(2018) 1 SCC 239

2

“1961 Rules”

4

obtained in a competitive examination and viva- voce conducted by the High

Court”.

4. By a notification dated 13 December 2012, the High Court of Kerala

prescribed the scheme for the Kerala Higher Judicial Service Examination.

The scheme as notified by the High Court contained the following stipulations

pertaining to the examination:

(i) The examination will co mprise of a written examination consisting of

two papers carrying 150

marks each and a viva- voce carrying 50 marks

with a total of 350 marks so assigned;

(ii) While separate minimum marks were not prescribed for each paper,

general category candidates who secure at least 50% in the aggregate

and SC/ST candidates who secure at least 40% in the aggregate for

both the papers together would be qualified for viva- voce test;

(iii) The viva-voce test would be conducted “in a thorough and scientific

manner” for a period ranging between 25 to 30 minutes for each

candidate;

(iv) There shall be no cut off marks for the viva -voce; and

(v) The merit list would be prepared on the basis of the aggregate marks

obtained both in the written examination and the viva- voce.

5. On 30 September 2015, a notification was issued by the High Court of Kerala

by which applications were invited from qualified candidates for appointment

5

as District and Sessions Judges in the Kerala State Higher Judicial S ervices

by direct recruitment from the Bar. Paragraph 5 of the notification provides for

the mode of selection. Paragraph 5 stipulates that the selection would be on

the basis of a competitive examination consisting of a written examination and

a viva-voce. The total marks assigned for the written examination were 300

comprising of two papers, each carrying maximum of 150 marks. General

candidates and candidates belonging to the OBC category who secure 50%

and the SC/ST candidates who secure 40% aggregate minimum marks for

both the written papers together were to be declared as qualified for the viva-

voce. The maximum marks prescribed for the viva- voce were fifty . Paragraph

5 stipulates that “the merit list of successful candidates will be prepared on

the basis of the total marks obtained in the written examination and viva-

voce.”

6. Following the notification which was issued by the High Court on 30

September 2015, the written test was conducted on 12 and 13 March 2016.

On 17 December 2016, the notification regarding candidates who had

qualified in the written test came to be published. Following this, between 16

January and 24 January 2017, the viva- voce for all the qualified candidates

was conducted.

7. On 27 February 2017, after the viva- voce was conducted, the Administrative

Committee of the High Court passed a resolution by which it decided to apply

the same minimum cut-off marks which were prescribed for the written

examination as a qualifying criterion in the viva- voce. In coming to this

6

conclusion, the Administrative Committee was of the view that since

appointments were being made to the Higher Judicial Service, it was

necessary to select candidates with a requisite personality and knowledge

which could be ensured by prescribing a cut-off for the viva-voce in terms

similar to the cut-off which was prescribed for the written examination. On 6

March 2017, the Full Court of the High Court of Kerala approved the resolution

of the Administrative Committee. The final merit list of the successful

candidates was also published on the same day.

8. The decision of the Full Court to apply minimum cut -off marks for the viva

voce and the resultant promulgation of the list of successful candidates led to

the institution of petitions before this Court under Article 32 of the Constitution.

The candidates who are before this Court are aggrieved by the fact that as a

result of the application of cut off marks in the viva -voce, they have been

ousted from selection though they would rank higher than many of the

candidates who have been selected on the consideration of the aggregate of

marks in the written examination and the viva- voce. This specific grievance

was urged before this Court when notice was issued particularly in relation to

the three respondents, respondents 9, 11 and 12.

9. When the petition was taken up by a two- Judge Bench of this Court on 14

November 2017, a reference was made to the Constitution Bench, following

an earlier reference made to the larger Bench in Tej Prakash Pathak v.

Rajasthan High Court

3

. While making a reference to the Constitution Bench

3

(2013) 4 SCC 540

7

in the earlier decision, the principal issue which has been addressed is

whether it is open in law after a selection process is instituted, to change the

rules of the game midstream. In that context, reliance was placed on an earlier

decision in K Manjusree v. State of Andhra Pradesh.

4

The view in K

Manjusree (supra) has been doubted on the ground that the principle which

has been laid down in that case would appear to run contrary to an earlier

decision in the State of Haryana v. Subash Chander Marwaha.

5

In the view

that we are inclined to take in the present case, it does not become necessary

to rule on the broader constitutional issue on which a reference has been

made in Tej Prakash Pathak (supra). The reason why we have come to this

conclusion would be elaborated shortly hereinafter.

B. Submissions

10. During the course of the hearing, we have heard arguments on behalf of the

petitioners by Mr V Chitambaresh, senior counsel, Mr P V Dinesh, Ms

Haripriya Padmanabhan, Mr Raghen Basant and Mr Kuriakose Verghese,

counsel. Principally, the modalities which have been followed by the High

Court of Kerala for the selection of candidates have been assailed on four

grounds:

(i) In specifying a cut off for the viva- voce, the High Court has acted in a

manner contrary to Rule 2(c)(iii) of the 1961 Rules;

4

(2008) 3 SCC 512

5

(1974) 3 SCC 220

8

(ii) The scheme which was notified by the High Court on 13 December

2012 had expressly provided that there shall be no cut off for the

purposes of the viva- voce;

(iii) According to the notification, the only criteria for the purpose of

shortlisting candidates would be length of practice rendered by

candidates at the Bar which was to operate in a situation where the

number of candidates was found to be unusually large; and

(iv) The decision of the Full Court to prescribe a cut off for the viva -voce

was notified much after the viva- voce was held, as a consequence of

which, candidates had no notice that such a requirement would be

introduced at the inception of the process.

11. Mr Dama Seshadri Naidu, senior counsel has appeared on behalf of the High

Court of Kerala, while Mr K P Kylasnatha Pillay, senior counsel for respondent

No 11 argued in support of the dismissal of the writ petitions on the basis of

the following grounds:

(i) Article 233 of the Constitution vests a discretionary power with the High

Court in matters of selection of judicial officers which cannot be

curtailed by statutory rules;

(ii) The Selection Committee constituted by the High Court is an expert

body best placed to understand the suitability of the candidates, the

needs of the judicial institution , and the larger public interest;

9

(iii) The decision of the High Court in specifying minimum cut-off marks for

the viva voce was applied across the board to select suitable

candidates and does not suffer from arbitrariness; and

(iv) Since the viva voce is an essential component to determine the

suitability of candidates, it is within the discretion of the High Court to

determine the weightage to be assigned to it.

C. Analysis

i. The decision of the High Court was contrary to the 1961 Rules

12. The 1961 Rules specify that 25% of the aggregate posts which are to be filled

in by direct recruitment from the Bar would comprise of the list of candidates

selected on the basis of the aggregate marks obtained in the written

examination and the viva- voce. These r ules, as already noted earlier, have

been framed in exercise of the power conferred by Articles 233 and 309 of

the Constitution. After the statutory rules were notified on 11 July 1961, the

High Court of Kerala published the scheme of the examination for recruitment

of members of the Bar to the Kerala Higher Judicial Service on 13 December

2012. The scheme so notified specifically provides that there shall be no cut

off marks for the viva voce. The notification which was issued by the High

Court on 30 September 2015 for the conduct of the ensuing examination

provided that the mode of selection would consist of two written papers, each

carrying 150 marks and that candidates from the general and OBC categories

who secured a minimum of 50% marks (relaxed to 40% for SC/ST candidates)

would qualify for the viva- voce. The notification spells out that the aggregate

10

of the marks in the written examination and the viva- voce would form the basis

of drawing the merit list.

13. In the above backdrop, it is evident that when the process of selection

commenced, all the candidates were put on a 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) there was no cut off applicable in respect of the marks

to be obtained in the viva- voce while drawing up the merit list in the aggregate.

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

11

prescribe cut off marks for the viva-voce was taken much after the viva- voce

tests were conducted in the month of January 2017.

15. For the above reasons, we have come to the conclusion that the broader

constitutional issue which has been referred in Tej Prakash Pathak (supra)

would not merit decision on the facts of the present case. Clearly, the decision

which was taken by the High Court was ultra vires Rule 2(c)(iii) as it stands.

As a matter of fact, during the course of the hearing we have been apprised

of the fact that the Rules have been subsequently amended in 2017 so as to

prescribe a cut off of 35% marks in the viva- voce examination which however

was not the prevailing legal position when the present process of selection

was initiated on 30 September 2015. T he Administrative Committee of the

High Court decided to impose a cut off for the viva- voce examination actuated

by the bona fide reason of ensuring that candidates with requisite personality

assume judicial office. However laudable that approach of the Administrative

Committee may have been, such a c hange would be required to be brought

in by a substantive amendment to the Rules which came in much later as

noticed above. This is not a case where the rules or the scheme of the High

Court were silent. Where the statutory rules are silent, they can be

supplemented in a manner consistent with the object and spirit of the Rules

by an administrative order.

16. In the present case, the statutory rules expressly provided that the select list

would be drawn up on the basis of the aggregate of marks obtained in the

written examination and the viva- voce. This was further elaborated in the

12

scheme of examination which prescribed that there would be no cut off marks

for the viva- voce. This position is also reflected in the notification of the High

Court dated 30 September 2015. In this backdrop, we have come to the

conclusion that the decision of the High Court suffered from its being ultra

vires the 1961 Rules besides being manifestly arbitrary.

ii. Legitimate Expectation

17. Another important aspect that arises for our consideration in these batch of

petitions is whether the High Court’s decision frustrates the legitimate

expectation of the petitioners. Article 233 of the Constitution provides that the

appointment of persons to be posted as 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. Further, Article 235 vests with

the High Court the control over district courts including the posting and

promotion of district judges. The maintenance of efficiency of judicial

administration is entirely within the control and jurisdiction of the High Court.

6

The Governor, in consultation with the High Court, prescribes rules laying

down the method of appointment and the necessary eligibility criteria for the

selection of suitable candidates for the post of district jud ges. According to

the 1961 Rules, the High Court of Kerala was designated as the appointing

authority and tasked with the responsibility of conducting the written

examination and the viva voce. The actions of the High Court, in pursuance

6

State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640

13

of its public duty, would give rise to the legitimate expectation that the process

of selection of candidates will be fair and non- arbitrary.

a. Doctrine of legitimate expectation under common law

18. The basis of the doctrine of legitimate expectation in public law is founded on

the principles of fairness and non- arbitrariness in government dealings with

individuals. It recognizes that a public authority’s promise or past conduct will

give rise to a legitimate expectation. The doctrine is premised on the notion

that public authorities, while performing their public duties, ought to honor

their promises or past practices. The legitimacy of an expectation can be

inferred if it is rooted in law, custom, or established procedure.

7

19. The origin of the doctrine in the modern sense could be authoritatively traced

to the opinion of Lord Denning in Schmidt v. Secretary of State for Home

Affairs.

8

In that case, the Home Secretary granted a limited permit to the

petitioners to enter the United Kingdom for the purposes of study at the

College of Scientology. After the expiration of the time period, the petitioners

applied to the Home Secretary for an extension of their permits. T he Home

Secretary refused to grant the extension. Although the Court rejected the

claim brought by the petitioners, Lord Denning observed that the petitioner

would have a legitimate expectation of being allowed to stay for the permitted

time. In such situation, it was observed that the petitioner ought to have been

given an opportunity of making a representation if his permit was revoked

7

Salemi v. Mackellar, [1977] HCA 26

8

[1969] 2 WLR 337

14

before the expiration of the time period. Lord Denning’s conception of the

doctrine of legitimate expectation was a procedural protection – a legitimate

expectation could not be denied without providing an opportunity of hearing

to the affected person.

20. In O’Reilly v. Mackman,

9

the House of Lords was called upon to decide the

validity of the order passed by the B oard of V isitors to impose a penalty

against the plaintiffs in breach of the prison rules and principles of natural

justice. Lord Diplock observed that the doctrine of legitimate expectation gave

the affected party a right to challenge the legality of the adverse actions on

the ground that the authority had acted beyond the powers conferred upon it

by the legislation including the failure to observe the principles of natural

justice. Lord Diplock reiterated the doctrine of legitimate expectation in terms

of the duty of public authorities to act fairly in their dealings with indi viduals.

21. The doctrine of legitimate expectation received further impetus in the decision

of the Privy Council in Attorney General of Hong Kong v. Ng Yuen Shiu.

10

In that case, a senior immigration officer announced that each illegal entrant

from China would be interviewed before passing deportation orders against

them. The respondent, an illegal entrant from China, was detained and

removal orders were passed against him without any opportunity of hearing.

Therefore, the issue was whether the respondent had a legitimate expectation

of the grant of a hearing before repatriation by the immigration officer. It was

9

[1983] 2 AC 237

10

[1983] 2 WLR 735

15

held that a public authority is bound by its undertakings. Lord Fraser explained

the contours of legitimate expectations in the following terms:

“The expectations may be based upon some statement or

undertaking by, or on behalf of, the public authority which has the

duty of making the decision, if the authority has, through its officers,

acted in a way that would make it unfair or inconsistent with good

administration for him to be denied such an inquiry.”

According to Lord Fraser’s opinion, the primary justification for the doctrine of

legitimate expectation is that a public authority should implement its promise

in the interests of fairness and good administration.

22. The doctrine of legitimate expectation was crystallized in common law

jurisprudence by Lord Diplock in the locus classicus, Council of Civil Service

Unions v. Minister for the Civil Service.

11

Lord Diplock held that courts can

exercise the power of judicial review of administrative decisions in situations

where such decision deprives a person of some benefit or advantage which:

(i) they had in the past been permitted by the decision- maker to enjoy and

which they can legitimately expect to be permitted to continue until

there has been communicated to them some rational grounds for

withdrawing it on which they have been given an opportunity to

comment; or

(ii) they have received assurance from the decision- maker that the

advantage or benefit will not be withdrawn without giving them an

11

[1985] AC 374

16

opportunity of advancing reasons for contending that the advantage or

benefit should not be withdrawn.

23. The doctrine of legitimate expectation emerged as a common law doctrine to

guarantee procedural fairness and propriety in administrative actions.

Legitimate expectation was developed by the courts to require a degree of

procedural fairness by public authorities in their dealings with individuals.

Denial of an assured benefit or advantage was accepted as a ground to

challenge the decision of a public authority.

b. Doctrine of legitimate expectation under Indian law

24. By the 1990s, the Indian courts incorporated the doct rine of legitimate

expectation in the context of procedural fairness and non-arbitrariness under

Article 14 of the Constitution. In Food Corporation of India v. Kamdhenu

Cattle Feed Industries

12

, this Court held that public authorities have a duty

to use t heir powers for the purposes of public good. This duty raises a

legitimate expectation on the part of the citizens to be treated in a fair and

non-arbitrary manner in their interactions with the state and its

instrumentalities. This Court held that a decision taken by an executive

authority without considering the legitimate expectation of an affected person

may amount to an abuse of power:

“7. […] To satisfy this requirement of non- arbitrariness in a State

action, it is, therefore, necessary to consider and give due weight to

the reasonable or legitimate expectations of the persons likely to be

affected by the decision or else that unfairness in the exercise of the

power may amount to an abuse or excess of power apart from

12

(1993) 1 SCC 71

17

affecting the bona fides of the decision in a given case. The decision

so made would be exposed to challenge on the ground of

arbitrariness. Rule of law does not completely eliminate discretion

in the exercise of power, as it is unrealistic, but provides for control

of its exercise by judicial review.”

The court held that whether the expectation of a claimant is legitimate or not

is a question of fact which has to be decided after weighing the claimant’s

expectation against the larger public interest. Thus, while dealing with the

claims of legitimate expectations, the Court has to necessarily balance the

legitimate expectation of a claimant against the larger public interest.

25. In Union of India v. Hindustan Development Corporation,

13

this Court

clarified the contours of the doctrine of legitimate expectation in the following

terms: (i) legitimate expectation arises based on a representation or past

conduct of a public authority; (ii) legitimacy of an expectation can be inferred

only if it is founded on the sanction of law or custom or an established

procedure followed in regular or natural sequence; (iii) legitimate expectation

provides locus standi to a claimant for judicial review; (iv) the doctrine is

mostly confined to a right of a fair hearing before a decision and does not give

scope to claim relief straightaway; (v) the public authority should justify the

denial of a person’s legitimate expectation by resorting to overriding public

interest; and (vi) the Courts cannot interfere with the decision of an authority

taken by way of policy or public interest unless such decision amounts to an

abuse of power.

13

(1993) 3 SCC 499

18

26. In Hindustan Development Corporation (supra), this Court cautioned

against the use of the doctrine of legitimate expectation to safeguard a

substantive right. Yet, in a series of subsequent decisions, this Court

accepted that the doctrine of legitimate expectations has become a source of

both procedural and substantive rights.

14

In Punjab Communication Ltd v.

Union of India

15

, this Court explained the difference between procedural and

substantive legitimate expectation in the following terms:

“The procedural part of it relates to a representation that a hearing

or other appropriate procedure will be afforded before the decision

is made. The substantive part of the principle is that if a

representation is made that a benefit of a substantive nature will be

granted or if the person is already in receipt of the benefit that it will

be continued and not be substantially varied, then the same could

be enforced.”

A claim based on the doctrine of procedural legitimate expectation arises

where a claimant expects the public authority to follow a particular procedure

before taking a decision. This is in contradistinction to the doctrine of

substantive legitimate expectation where a claimant expects conferral of a

substantive benefit based on the existing promise or practice of the public

authority. The doctrine of substantive legitimate expectation has now been

accepted as an integral part of both the common law as well as Indian

jurisprudence.

c. Substantive Legitimate Expectation

14

M P Oil Extraction v. State of M P, (1997) 7 SCC 592; National Building Construction Corporation v.

S Raghunathan (1998) 7 SCC 66

15

(1999) 4 SCC 727

19

27. In R v. North and East Devon Health Authority, ex parte Coughlan

16

, the

Court of Appeal laid down the test of abuse of power to determine whether a

public authority can resile from a prima facie legitimate expectation. It was

held that frustration of a substantive legitimate expectation by public

authorities would be unfair and amount to abuse of power. Importantly, it was

held that abuse of power constitutes a ground for the courts to exercise

judicial review of executive actions.

28. In Nadarajah v. Secretary of State for the Home Department,

17

the Court

of Appeal added another facet to the doctrine of substantive legitimate

expectation by grounding it in the principles of good administration.

Importantly, the court identified that consistency and probity are tenets of a

good administration. Laws LJ explained the principles underlying the doctrine

of legitimate expectation in the following terms:

“68. The search for principle surely starts with the theme that is

current through the legitimate expectation cases. It may be

expressed thus. Where a public authority has issued a promise or

adopted a practice which represents how it proposes to act in a

given area, the law will require the promise or practice to be

honoured unless there is good reason not to do so. What is the

principle behind this proposition? It is not far to seek. It is said to be

grounded in fairness, and no doubt in general terms that is so. I

would prefer to express it rather more broadly as a requirement

of good administration, by which public bodies ought to deal

straightforwardly and consistently with the public.”

(emphasis supplied)

Moreover, Laws LJ held that a public authority can resile from its promise or

future conduct if its decision: (i) is in pursuance of a legal duty; or (ii) is a

16

[2001] QB 213

17

[2005] EWCA Civ 1363

20

proportionate response having regard to the legitimate aim pursued by the

public body in the public interest.

29. The decision of the Court of Appeal in Coughlan (supra) marked a gradual

shift in the formulation of the doctrine of legitimate expectation in the common

law. In Schmidt (supra) and Council of Civil Service Unions (supra), the

application of the doctrine was justified on the grounds of fairness in decision-

making by public authorities. However, the gradual shift towards a more

nuanced aspect of the doctrine began when the English courts started

requiring public authorities to honor their promises or practices as a

requirement of good administration. Good administration was characterized

by consistent, regular, and straight-forward conduct on behalf of the public

authorities. Further, the concept of unfairness in decision- making as an abuse

of power was firmly established by the court in Coughlan (supra). Thus, the

requirement of good administration and preventing an abuse of power came

to underpin the administrative actions of public authorities.

18

30. The above developments in the common law also had an influence on the

Indian law. In Ram Pravesh Singh v. State of Bihar,

19

this Court explained

the concept of legitimate expectation as a reasonable, logical, and valid

expectation of certain benefit, relief, or remedy:

“15. What is legitimate expectation? Obviously, it is not a legal right.

It is an expectation of a benefit, relief or remedy, that may ordinarily

flow from a promise or established practice. The term “established

practice” refers to a regular, consistent, predictable and certain

conduct, process or activity of the decision-making authority.

18

R v. Department of Education and Employment, [2000] 1 WLR 1115

19

(2006) 8 SCC 381

21

The expectation should be legitimate, that is, reasonable,

logical and valid. Any expectation which is based on sporadic or

casual or random acts, or which is unreasonable, illogical or invalid

cannot be a legitimate expectation.”

(emphasis supplied)

In Ram Pravesh Singh (supra), this Court noted that the efficacy of the

doctrine of legitimate expectation is weak as the claimant is only entitled to

the following two reliefs: (i) an opportunity to show cause before the

expectation is negatived; and (ii) an explanation as to the cause for denial.

The Court further clarified that a claim based on legitimate expectation can

be negatived on factors such as public interest, change in policy, conduct of

the claimant, or any other valid or bona fide reason provided by the public

authority.

31. While dealing with the doctrine of legitimate expectation, an other important

aspect that the courts have had to grapple with is determining the “legitimacy”

of the expectation. The court can infer the legitimacy of an expectation only if

it is founded on the sanction of law.

20

In Secretary, State of Karnataka v.

Umadevi,

21

a Constitution Bench of this Court held that a contractual or

casual employee cannot claim a legitimate expectation to be regularized in

service since such appointments could only be made after following proper

procedures for selection including consultation with the Public Service

Commission in certain situations. The legitimacy of expectation is a question

20

Bannari Amman Sugars Ltd v. CTO, (2005) 1 SCC 625

21

(2006) 4 SCC 1

22

of fact and has to be determined after weighing the claimant’s expectati on

against the larger public interest.

32. This Court has consistently held that a legitimate expectation must always

yield to the larger public interest. In Sethi Auto Service Station v. DDA,

22

this Court clarified that legitimate expectation will not be applicable where the

decision of the public authority is based on a public policy or is in the public

interest, unless the action amounts to an abuse of power. The doctrine of

legitimate expectation cannot be invoked to fetter valid exercise of

administrative discretion.

23

In P Suseela v. University Grants

Commission,

24

the claimants challenged the UGC Regulations which made

it mandatory for candidates seeking to be appointed to the post of lecturer or

assistant professor to qualify at the NET examination. The Court held that the

legitimate expectation of the claimants must yield to the larger public interest

– having highly qualified assistant professors and lecturers to teach in

educational institutions governed by the UGC.

33. In Kerala State Beverages (M&M) Corp Ltd. v. P P Suresh ,

25

the state

government decided to ban arrack, as a result of which thousands of arrack

workers lost their livelihoods. In 2002, the government issued an order

reserving twenty-five percent of all the vacancies to the post of daily wage

workers in the petitioner corporation for the arrack workers who lost livelihood

due to the arrack ban. In 2004, the government changed the criteria by

22

(2009) 1 SCC 180

23

Monnet Ispat & Energy Ltd v. Union of India, (2012) 11 SCC 1

24

(2015) 8 SCC 129

25

(2019) 9 SCC 710

23

providing that the reservation policy would only be earmarked for the

dependent sons of the arrack workers. T he state government submitted

before this Court that it was practically difficult to provide employment to the

arrack workers. The Court accepted that the workers had a legitimate

expectation to be considered for the appointment as daily wage workers.

However, it gave credence to the overriding public interest cited by the state

government to resile from the promise made to the arrack workers . After

weighing the expectation of the workers against the public interest, this Court

held that the expectation of the workers was not legitimate.

34. In State of Jharkhand v. Brahmputra Metallics

26

, the issue before this

Court was whether the respondent was entitled to claim a rebate or deduction

on electricity duty under the Industrial Policy, 2012 for a period of five years

from the commencement of production. Although the policy was announced

in 2012, the exemption notification was issued in 2015 with prospective effect.

While dealing with the issue of whether the state government frustrated the

legitimate expectation of the respondent, one of us (D Y Chandrachud, J)

observed that the representations made by the public authorities should be

held to scrupulous standards because of the trust reposed by the citizens in

the state:

“41. […] Representations by public authorities need to be held to

scrupulous standards, since citizens continue to live their lives

based on the trust they repose in the State. In the commercial world

also, certainty and consistency are essential to planning the affairs

of business. When public authorities fail to adhere to their

representations without providing an adequate reason to the

citizens for this failure, it violates the trust reposed by citizens in the

26

2020 SCC OnLine SC 968

24

State. The generation of a business friendly climate for investment

and trade is conditioned by the faith which can be reposed in

government to fulfil the expectations which it generates.”

35. In Brahmputra Metallics (supra), this Court held that the state government

made a solemn representation under its Industrial Policy, 2012 to provide

exemption from payment of electricity duty to the claimants. However, the

government failed to provide any justification for issuing the exemption notice

after a delay of three years in 2015. This Court observed that the state is

bound to act fairly and transparently while performing its public duties, and

any deprivation of entitlement of private citizens and private business must

be proportional to a requirement grounded in public interest:

“53. […] The state must discard the colonial notion that it is a

sovereign handing out doles at its will. Its policies give rise to

legitimate expectations that the state will act according to what it

puts forth in the public realm. In all its actions, the State is bound to

act fairly, in a transparent manner. This is an elementary

requirement of the guarantee against arbitrary state action which

Article 14 of the Constitution adopts. A deprivation of the entitlement

of private citizens and private business must be proportional to a

requirement grounded in public interest.”

36. The doctrine of legitimate expectation does not impede or hinder the power of the public authorities to lay down a policy or withdraw it. The public authority

has the discretion to exercise the full range of choices available within its

executive power. The public authority often has to take into consideration

diverse factors, concerns, and interests before arriving at a particular policy

decision. The courts are generally cautious in interfering with a bona fide

decision of public authorities which denies a legitimate expectation provided

such a decision is taken in the larger public interest. Thus, public interest

25

serves as a limitation on the application of the doctrine of legitimate

expectation. Courts have to determine whether the public interest is

compelling and sufficient to outweigh the legitimate expectation of the

claimant. While performing a balancing exercise, courts have to often grapple

with the issues of burden and standard of proof required to dislodge the claim

of legitimate expectation.

37. In Paponette v. Attorney General of Trinidad and Tobago,

27

the Privy

Council held that a claimant only has to prove the legitimacy of their

expectation. In this regard, the claimant must establish that the expectation is

based on an existing promise or practice. Once the claimant establishes their

legitimate expectation, the onus shifts to the authority to justify the frustration

of the expectation by identifying any overriding public interest. This Court has

been applying similar burden requirements in cases of legitimate

expectation.

28

38. The principle of fairness in action requires that public authorities be held

accountable for their representations, since the state has a profound impact

on the lives of citizens. Good administration requires public authorities to act

in a predicable manner and honor the promises made or practices established

unless there is a good reason not to do so. In Nadarajah (supra), Laws LJ

held that the public authority should objectively justify that there is an

overriding public interest in denying a legitimate expectation. We are of the

27

[2012] 1 AC 1

28

Union of India v. Hindustan Development Corp, (1993) 3 SCC 499; State of Jharkhand v.

Brahmputra Metallics, 2020 SCC OnLine SC 968; State of Bihar v. Shyama Nandan Mishra, 2022

SCC OnLine SC 554

26

opinion that for a public authority to frustrate a claim of legitimate expectation,

it must objectively demonstrate by placing relevant material before the court

that its decision was in the public interest. This standard is consistent with the

principles of good administration which require that state actions must be held

to scrupulous standards to prevent misuse of public power and ensure

fairness to citizens.

d. Consistency and predictability as aspects of non- arbitrariness

39. Another significant development in the jurisprudence pertaining to the

doctrine of legitimate expectation is the emphasis on predictability and

consistency in decision- making as a facet of non- arbitrariness. In Ram

Pravesh Singh (supra), it was held that the doctrine of legitimate expectation

applies to a regular, consistent, predictable, and certain conduct. Similarly,

in NOIDA Entrepreneurs Association v. NOIDA,

29

this Court observed that

an executive decision without any basis in a principle or a rule is

unpredictable. It was held that such a decision- making process contradicts

the principle of legitimate expectation and is antithetical to the rule of law.

40. In a recent decision in State of Bihar v. Shyama Nandan Mishra

30

, this Court

was called upon to determine the validity of the decision of the state

government to treat lecturers on par with secondary school teachers of

nationalized schools. A two- Judge Bench of this Court held that the decision

of the state government was ultra vires the Bihar Non-Government Secondary

29

(2011) 6 SCC 508

30

2022 SCC OnLine SC 554

27

Schools (Taken over of Control and Management) Act, 1981. Moreover, the

Court tested the validity of the government’s decision on the anvil of the

doctrine of substantive legitimate expectation. The Court held that the

government’s decision led to the denial of substantive legitimate expectations

of the lecturers because: (i) the government by artificially grouping the

lecturers with teachers of nationalized schools belied the expectation of the

lecturers to obtain promotion and attain higher positions in the department

depending upon inter-se seniority; and (ii) the government’s decision was

contrary to the previous representation, lacked any compelling public interest,

and was therefore unfair and amounted to an abuse of power.

41. In Shyama Nandan Mishra (supra), the Court also highlighted that regularity,

predictability, certainty, and fairness are important facets of governance:

“36. Taking a cue from above, where the substantive legitimate

expectation is not ultra vires the power of the authority and the court

is in a position to protect it, the State cannot be allowed to change

course and belie the legitimate expectation of the respondents. As

is well known, Regularity, Predictability, Certainty and Fairness

are necessary concomitants of Government's action and the

Bihar government in our opinion, failed to keep to their

commitment by the impugned decision, which we find was

rightly interdicted by the High Court.”

(emphasis supplied)

42. In a constitutional system rooted in the rule of law, the discretion available with public authorities is confined within clearly defined limits. The primary

principle underpinning the concept of rule of law is consistency and

predictability in decision- making. A decision of a public authority taken without

any basis in principle or rule is unpredictable and is, therefore, arbitrary and

28

antithetical to the rule of law.

31

The rule of law promotes fairness by stabilizing

the expectations of citizens from public authorities. This was also considered

in a recent decision of this Court in SEBI v. Sunil Krishna Khaitan,

32

where

it was observed that regularity and predictability are hall-marks of good

regulation and governance.

33

This Court held that certainty and consistency

are important facets of fairness in action and non- arbitrariness:

“59. […] Any good regulatory system must promote and adhere

to principle of certainty and consistency, providing assurance

to the individual as to the consequence of transactions forming

part of his daily affairs. […] This does not mean that the

regulator/authorities cannot deviate from the past practice, albeit

any such deviation or change must be predicated on greater public

interest or harm. This is the mandate of Article 14 o f the

Constitution of India which requires fairness in action by the

State, and non-arbitrariness in essence and substance.

Therefore, to examine the question of inconsistency, the analysis is

to ascertain the need and functional value of the change, as

consistency is a matter of operational effectiveness.”

(emphasis supplied)

43. The underlying basis for the application of the doctrine of legitimate

expectation has expanded and evolved to include the principles of good

administration. Since citizens repose their trust in the state, the actions and

policies of the state give rise to legitimate expectations that the state will

adhere to its assurance or past practice by acting in a consistent, transparent,

and predictable manner. The principles of good administration require that

the decisions of public authorities must withstand the test of consistency,

31

S G Jaisinghani v. Union of India, 1967 SCC OnLine SC 6

32

(2023) 2 SCC 643

33

(2023) 2 SCC 643

29

transparency, and predictability to avoid being regarded as arbitrary and

therefore violative of Article 14.

44. From the above discussion, it is evident that the doctrine of substantive

legitimate expectation is entrenched in Indian administrative law subject to

the limitations on its applicability in given factual situations. The development

of Indian jurisprudence is keeping in line with the developments in the

common law. The doctrine of substantive legitimate expectation can be

successfully invoked by individuals to claim substantive benefits or

entitlements based on an existing promise or practice of a public authority.

However, it is important to clarify that the doctrine of legitimate expectation

cannot serve as an independent basis for judicial review of decisions taken

by public authorities. Such a limitation is now well recognized in Indian

jurisprudence considering the fact that a legitimate expectation is not a legal

right.

34

It is merely an expectation to avail a benefit or relief based on an

existing promise or practice. Although the decision by a public authority to

deny legitimate expectation may be termed as arbitrary, unfair, or abuse of

power, the validity of the decision itself can only be questioned on established

principles of equality and non- arbitrariness under Article 14. In a nutshell, an

individual who claims a benefit or entitlement based on the doctrine of

legitimate expectation has to establish: (i) the legitimacy of the expectation;

34

Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499; Bannari Amman Sugars

Ltd v. CTO, (2005) 1 SCC 625; Monnet Ispat and Energy Ltd v. Union of India, (2012) 11 SCC 1;

Union of India v. Lt. Col. P K Choudhary (2016) 4 SCC 236; State of Jharkhand v. Brahmputra

Metallics, 2020 SCC OnLine SC 968

30

and (ii) that the denial of the legitimate expectation led to the violation of

Article 14.

D. Application of the doctrine of legitimate expectation

45. In order to apply the above- mentioned principles in the present case, we

consider it appropriate to formulate the following questions: (i) w hat has the

High Court, either by promise or practice, committed itself to; (ii) whether the

High Court has acted unlawfully in relation to its commitment; and (iii) what

should this Court allow.

35

i. What has the High Court committed itself to?

46. Rule 2(c)(iii) of the 1961 Rules provided at the material time that 25% of the

posts of District and Sessions Judges should be filled by direct recruitment

from the Bar on the basis of aggregate marks/grade obtained in the written

examination and the viva-voce conducted by the High Court. The scheme of

examination specifically stipulates that there shall be no cut off marks for the

viva voce. Further, the notification dated 30 September 2015 also stipulates

that the merit list of successful candidates would be prepared on the basis of

the total marks obtained in the written examination and the viva voce.

47. The statutory rule coupled with the scheme of e xamination and the 2015

examination notification would have generated an expectation in the

petitioners that the merit list of selected candidates will be drawn on the basis

of the aggregate of total marks received in the written examination and the

35

See Regina (Bibi) v. Newham London Borough Council, [2002] 1 WLR 237

31

viva voce. Moreover, t he petitioners would have expected no minimum cut-

off for the viva voce in view of the express stipulation in the scheme of

examination. Both the above expectations of the petitioners are legitimate as

they are based on the sanction of statutory rules, scheme of examination, and

the 2015 examination notification issued by the High Court. Thus, the High

Court lawfully committed itself to preparing a merit list of successful

candidates on the basis of the total marks obtained in the written examination

and the viva voce.

ii. Whether the High Court has acted unlawfully in relation to its

commitment?

48. The Administrative Committee of the High Court apprehended that a

candidate who performed well in the written examination, even though they

fared badly in the viva voce, would get selected to the post of District and

Sessions Judge. The Administrative Committee observed that recruitment of

such candidates would be a disservice to the public at large because they

possessed only “ bookish” knowledge and lacked practical wisdom. To avoid

such a situation, the Administrative Committee of the High Court decided to

apply a minimum cut-off to the viva voce examination. The decision of the

Administrative Committee was approved by the Full Bench of the High Court.

49. The Constitution vests the High Courts with the authority to select judicial

officers in their jurisdictions. The High Court, being a constitutional and public

authority, has to bear in the mind the principles of good administration while

performing its administrative duties. The principles of good administration

32

require that the public authorities should act in a fair, consistent, and

predictable manner.

50. The High Court submitted that frustration of the petitioner’s substantive

legitimate expectation was in larger public interest – selecting suitable

candidates with practical wisdom for the post of D istrict Judges. Indeed, it is

in the public interest that we have suitable candidates serving in the Indian

judiciary. However, the criteria for selecting suitable candidates are laid down

in the statutory rules. As noted above, the High Court did amend the 1961

Rules in 2017 to introduce a minimum cut-off mark for the viva voce. The

amended Rule 2(c) is extracted below:

“2. Method of appointment – (1) Appointment to the service shall be

made as follows:

[…]

(c) Twenty five percent of the posts in the service shall be filled up

by direct recruitment from the members of the Bar. The recruitment

shall be on the basis of a competitive examination consisting of a

written examination and a viva voce. […] Maximum marks for viva

voce shall be 50. The General and Ot her Backward Classes

candidates shall secure a minimum of 40% marks and

Scheduled Caste/Scheduled Tribe candidate shall secure a

minimum of 35% marks for passing the viva voce. The merit list

of the selected candidates shall be prepared on the basis of the

aggregate marks secured by the candidate in the written

examination and viva voce.”

(emphasis supplied)

51. Under the unamended 1961 Rules , the High Court was expected to draw up

the merit list of selected candidates based on the aggregate marks secured

by the candidates in the written examination and the viva voce, without any

requirement of a minimum cut-off for the viva voce. Thus, the decision of the

Administrative Committee to depart from the expected course of preparing

33

the merit list of the selected candidates is contrary to the unamended 1961

Rules. It is also important to highlight that the requirement of a minimum cut-

off for the viva voce was introduced after the viva voce was conducted. It is

manifest that the petitioners had no notice that such a requirement would be

introduced for the viva voce examination. We are of the opinion that the

decision of High Court is unfair to the petitioners and amounts to an arbitrary

exercise of power.

52. The High Court’s decision also fails to satisfy the test of consistency and

predictability as it contravenes the established practice. The High Court did

not impose the requirement of a minimum cut-off for the viva voce for the

selections to the post of District and Sessions Judges for 2013 and 2014.

Although the High Court’s justification, when analyzed on its own terms, is

compelling, it is not grounded in legality. T he High Court’s decision to apply a

minimum cut-off for the viva voce frustrated the substantive legitimate

expectation of the petitioners. Since the decision of the High Court is legally

untenable and fails on the touchstone of fairness, consistency, and

predictability, we hold that such a course of action is arbitrary and violative of

Article 14.

34

iii. What should this Court do?

53. The question which now arises before the Court is in regard to the relief which

can be granted to the petitioners. The final list of successful candidates was

issued on 6 March 2017. The candidates who have been selected have been

working as District and Sessions Judges for about six years. In the meantime,

all the petitioners who are before the Court have not functioned in judicial

office. At this lapse of time, it may be difficult to direct either the unseating of

the candidates who have performed their duties. Unseating them at this stage

would be contrary to public interest since they have gained experience as

judicial officers in the service of the State of Kerala. While the grievance of

the petitioners is that if the aggregate of marks in the written examination and

viva-voce were taken into account, they would rank higher than three

candidates who are respondents to these proceedings, equally, we cannot

lose sight of the fact that all the selected candidates are otherwise qualified

for judicial office and have been working over a length of time. Unseating them

would, besides being harsh, result in a situation where the higher judiciary

would lose the services of duly qualified candidates who have gained

experience over the last six years in the post of District Judge.

54. For the above reasons, we have come to the conclusion that it would not be

possible to direct the induction of the petitioners into the Higher Judicial

Service at the present stage. Many of the petitioners would have since joined

the Bar and would be in active practice. It needs to be clarified that their

having failed to gain selection to the H igher Judicial Service in the process

35

which was initiated on 30 September 2015, is not a reflection either on their

merits or ability and shall not come in the way of their being considered for

any other office, judicial or otherwise, in the future.

E. Conclusions

55. The following are our conclusions in view of the above discussions:

(i) The principles of good administration require that the decisions of

public authorities must withstand the test of consistency, transparency,

and predictability to avoid being termed as arbitrary and violative of

Article 14;

(ii) An individual who claims a benefit or entitlement based on the doctrine

of substantive legitimate expectation has to establish the following: (i)

the legitimacy of the expectation; and that (ii) the denial of the

legitimate expectation led to a violation of Article 14;

(iii) A public authority must objectively demonstrate by placing relevant

material before the court that its decision was in the public interest to

frustrate a claim of legitimate expectation;

(iv) The decision of the High Court of Kerala to apply a minimum cut-off to

the viva voce ex amination is contrary to Rule 2(c)(iii) of the 1961 Rules.

(v) The High Court’s decision to apply the minimum cut-off marks for the

viva voce frustrates the substantive legitimate expectation of the

petitioners. The decision is arbitrary and violative of Article 14.

36

(vi) In terms of relief, we hold that it would be contrary to the public interest

to direct the induction of the petitioners into the H igher Judicial Service

after the lapse of more than six years. Candidates who have been

selected nearly six years ago cannot be unseated. They were all

qualified and have been serving the district judiciary of the state.

Unseating them at this stage would be contrary to public interest. To

induct the petitioners would be to bring in new candidates in preference

to those who are holding judicial office for a length of time. To deprive

the state and its citizens of the benefit of these experienced judicial

officers at a senior position would not be in public interest.

56. In the view which we have taken in the above terms, we have not considered

it necessary to answer the broader question which has been referred to the

Constitution Bench. Besides, the question has been squarely raised in certain

other cases which form a part of the present batch of cases in which

arguments are being heard by the Constitution Bench.

57. The Petitions are accordingly disposed of in the above terms.

37

58. Pending applications, if any, stand disposed of.

…...........…...….......………………....…..CJI.

[Dr Dhananjaya Y Chandrachud]

..…...........…...….......………………....…..J.

[Hrishikesh Roy]

..………....…...….......………………....… ..J.

[Pamidighantam Sri Narasimha]

..………....…...….......………………....… ..J.

[Pankaj Mithal]

..………....…...….......………………....… ..J.

[Manoj Misra]

New Delhi;

July 12, 2023.