2024 INSC 97 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 753/2023

SUSHIL KUMAR PANDEY & ORS. PETITIONER(S)

VERSUS

THE HIGH COURT

OF JHARKHAND & ANR. RESPONDENT(S)

WITH

WRIT PETITION (CIVIL) NO. 921/2023

JUDGMENT

In these two writ petitions, we are to address the legality of

the selection process of District Judge Cadre in the State of

Jharkhand initiated in the year 2022. An advertisement bearing No.

01/2022 was published on 24

th

March, 2022, inviting applications

from the eligible candidates for the said posts. The vacancies

specified in the advertisement itself were twenty-two. Appointment

procedure to the said posts is guided by the Jharkhand Superior

Judicial Service (Recruitment, Appointment and Conditions of

Service) Rules, 2001 (‘the 2001 Rules’). In the year 2017, the

Jharkhand Superior Judicial Service (Recruitment, Appointment

and Conditions of Service) Regulation, 2017 (“the 2017 Regulation”)

was framed in terms of Rule 11 and Rule 30 of the 2001 Rules for

2

this purpose.

2.On the basis of cut-off marks specified in the advertisement as

also in the 2001 Rules, select list of sixty-six persons was

published, applying the 1:3 ratio as there were twenty-two

published vacancies.

3.The High Court on its administrative side, however,

recommended only thirteen candidates for appointment though the

vacancies declared were twenty-two. A resolution to that effect was

taken in a Full Court meeting held on 23.03.2023. We shall quote

relevant provisions from the 2001 Rules in subsequent paragraphs

of this judgment along with the relevant extracts from the

advertisement. In the advertisement, the relevant portions for

adjudication of the subject dispute were contained under the

heading ‘Eligibility and Conditions’. The following criteria for

selection was specified therein:-

“Preliminary Entrance Test

(1) The Preliminary Entrance Test shall consist. Of:-

i. General English

ii. General Knowledge(including Current Affairs).

iii. C.P.C.

iv. Cr.P.C.

v. Evidence Act

vi. Law of Contract.

Vii. IPC

(2) The Preliminary Entrance Test shall be of 100 in

aggregate

(3) Duration of Preliminary Entrance Test shall be of two

3

hours.

(4) There shall be negative marking of -1 mark (minus

one)for each wrong answer.

Main Examination

(1) The Main Examination shall consist of:-

Paper -I

Part- I Language (English) 50 Marks

(Essay, Precis, Preposition and Comprehension etc,)

Part- II

(i) Procedural Law (Cr.P.C. & C.P.C.) (ii) Law of Evidence

(iii) Law of Limitation

50 Marks

Paper- II

Substantive Law 100 Marks (i)

Constitution of India

(ii) Indian Penal Code

(iii) Law of Contract

(iv) Sale of Goods Act

(v) Transfer of Property Act

(vi) Negotiable Instrument Act

(vii) Law relating to Motor Vehicle Accident Claim

(viii) Jurisprudence.

(ix) Santhal Pargana Tenancy Act

(x) Chhotanagpur Tenancy Act

(xi) Protection of Children from Sexual Offences Act (pocso)

(xii) Prevention Of Corruption Act (xiii) SC & ST Act

(xiv) Electricity Act

(xv) Narcotic Drugs and Psychotropic Substances Act (NDPS

Act)

(2) Examination shall be held in two sittings of three hours

duration for each paper.

Viva-Voce Test

(1) There shall be Viva-Voce Test of 40 marks.

(2) The marks obtained in Viva-Voce Test shall be added to

the marks obtained in Main Examination and the merit list

shall be prepared accordingly.

(3) No candidate irrespective of the marks obtained by him

in the Main Examination, shall be eligible for selection for

appointment, if he obtains less than 20 marks out of

aggregate of 40 in the Viva-Voce. Test.

4

Note:- Every differently abled candidate will be allowed

"compensatory time" of 20 minutes for each hour of written

examination.”

4.So far as the selection process involved in these proceedings is

concerned, no preliminary entrance test was held, but that question

is not in controversy before us. The main examination comprising of

Paper-I and Paper-II carried a total of 200 marks. As per the

advertisement, the marks allocated for viva-voce test was 40 as

would appear from the preceding paragraph. A candidate

irrespective of the marks obtained by him in the main examination

was required to get at least 20 marks out of the aggregate 40 in the

viva-voce test.

5.As per the 2001 Rules, the provisions relevant are Rules 14, 18,

21 and 22. These Rules read:-

“14. Notwithstanding anything contained in the foregoing

Rule, it shall be open to the High Court to require the

candidate at any stage of the selection process or

thereafter, to furnish any such additional proof or to

produce any document with respect to any matter relating

to his suitability and/or eligibility as the High Court may

deem necessary.

18. Before the start of the examination, the High Court may

fix the minimum qualifying marks in the Preliminary

Written Entrance Test and thereafter minimum qualifying

marks in the main examination. Based on such minimum

qualifying marks, the High Court may decide to call for

viva-voce such number of candidates, in order of merit in

written examination, depending upon the number of

vacancies available as it may appropriately decide:

Provided that in the case of candidates belonging to

scheduled castes and scheduled tribes and candidates

belonging to other reserved categories, such minimum

5

qualifying marks may not be higher than 45% of the total

aggregate marks :

Provided also that in determining the suitability of a

particular candidate based on both the minimum

qualifying marks as well as in order of merit, the total

marks obtained in the examination as a whole and the

marks obtained in any individual paper, both shall also be

taken into consideration, depending upon any guidelines

that the High Court may issue in this behalf in the

Regulations to be framed for this purpose.

21. A candidate, irrespective of the marks obtained by him

in the Preliminary Written Entrance Examination and/or

the Main Written Examination shall not be qualified to be

appointed unless he obtains a minimum of 30% marks in

the viva-voce test. The marks obtained at the viva voce test

shall then be added to the marks obtained by the

candidate at the main written examination. The names of

the candidates will then be tabulated and arranged in

order of merit. If two or more candidates obtain equal

marks in the aggregate, the order shall be determined in

accordance with the marks secured at the main written

examination. If the marks secured at the main written

examination of the candidates also are found equal then

the order shall be decided in accordance with the marks

obtained in the Preliminary Written Entrance Test. From the

list of candidates so arranged in order of merit the High

Court shall prepare a select list and have it duly notified in

a manner as prescribed in the regulations. Such select list

shall be valid for a period of one year from the date of

being notified.

22. From out of the aforesaid select list, depending upon

the number of vacancies available or those required to be

filled up, the High Court shall recommend to the

Government the names for appointment as Additional

District Judge.”

6.There appears to be one inconsistency in relation to minimum

marks prescribed between the content of Rule 21 of the said Rules

and paragraph 12 of the 2017 Regulation. The said paragraph of

the Regulation stipulates:-

6

“(12)No candidate irrespective of the marks obtained

by him in the Main Examination, shall be eligible for

selection for appointment, if he obtains less than 20 marks

out of aggregate of 40 in the Viva-Voce Test.”

7.We have already quoted Rule 21 of the 2001 Rules where

minimum of 30% marks in the viva-voce has been prescribed as the

qualification criteria. But that question also does not arise in the

present two writ petitions as none of the parties before us has

raised this point. We also find it to be a safer course to go by the

provisions of paragraph 12 of the 2017 Regulation, as the

advertisement also prescribed minimum 20 marks out of aggregate

of 40 in the Viva Voce test.

8.Admitted position is that the 9 candidates who have been left out

from being recommended for appointment, had found place in the

select list in terms of Rule 21 of the 2001 Rules.

9.In Writ Petition (Civil) No. 753 of 2023, altogether seven

petitioners have joined in questioning the exclusion of the 9

candidates by the Full Court Resolution. The said resolution

introduces securing 50 per cent marks in aggregate (combination of

marks obtained in main examination and viva-voce) as the

qualifying criteria for being recommended to the said posts. This

resolution against Agenda No. 1 of the Full Court Meeting held on

23

rd

March, 2023 records:-

7

SL.No

.

AGENDA RESOLUTIONS

1. To consider the

matter over

recruitment process of

District Judge [U/r

4(a) directly from Bar]

with regard to Final

Result against

advertisement

no.01/2022/Apptt.

Considered.

The Full Court resolves to approve the final

result list of 63 Candidates who have

appeared for viva voce (list enclosed with

this resolution and marked at Flag “X”)

Further, Full Court observes that

candidates at Sl.No.7 & 8 have got the

same total marks, but on careful

consideration it transpires that candidate

at Sl.No.8 has got higher marks in written

examination. Hence in view of Rule 21 of

Jharkhand Superior Judicial (Recruitment,

Appointment and Conditions of Service)

Rules, 2001, candidate at Sl.No.8 is placed

at higher place/rank.

Further after due deliberation, keeping in

view the responsibility that will be vested

upon the candidates who qualify for

appointment of District Judges and to

maintain the high standard of Superior

Judicial Services, the Full Court resolves

that only those candidates who have

secured at least 50% marks in aggregate,

shall be qualified for appointment to post of

District Judge.

It is hereby resolved to recommend the

names of following 13 top (merit wise)

candidates to the State Government for

issuance of necessary notification/s for

their appointment to the post of District

Judge after completing/undertaking the

investigation/enquiry relating to the

candidates credentials as per Rule 23 &

24 of Jharkhand Superior Judicial

(Recruitment, Appointment and Conditions

of Service) Rules, 2001:

S.No

.

Roll

No.

Name

8

1 1036

9

NAMITA CHANDRA

2 1095

6

SHWETA DHINGRA

3 1034

3

PARAS KUMAR SINHA

4 1038

8

KUMAR SAKET

5 1051

9

SHIVNATH TRIPATHI

6 1021

8

BHUPESH KUMAR

7 1157

7

AISHA KHAN

8 1029

4

BHANU PRATAP SINGH

9 1059

2

NEETI KUMAR

10 1037

1

PRACHI MISHRA

11 1010

9

PAWAN KUMAR

12 1106

1

RAJESH KUMAR BAGGA

13 1058

7

NARANJAN SINGH

Registrar General is directed to upload the

names of above mentioned 13 successful

candidates to the official website of this Court.

10. This Resolution has been disclosed in the reply to the

Rejoinder affidavit filed on behalf of the High Court of Jharkhand,

affirmed by Registrar General of that Court.

11. There are two impleadment applications registered as I.A.

No. 173928 of 2023 taken out by ‘Purnendu Sharan’ and I.A. No.

9

10383 of 2024 taken out by ‘Ashutosh Kumar Pandey’, both of them

being aggrieved by the procedure adopted by the Full Court.

12. Another set of candidates have filed the second writ petition

registered as Writ Petition (Civil) No. 921 of 2023. In this writ

petition, altogether five candidates have sought substantially the

same relief asked for in the Writ Petition (Civil) No. 753 of 2023.

13. The petitioners have been represented before us by Mr.

Dushyant Dave, Mr. Vinay Navare and Mr. Jayant K. Sud, learned

senior counsel whereas the High Court of Jharkhand has been

represented by Mr. Jaideep Gupta, learned senior counsel. Mr. Rajiv

Shanker Dvivedi, learned Standing Counsel for the State of

Jharkhand has appeared for the State. State has taken a non-

committal stand before us. Counter affidavit has been filed by the

State in which also no definitive stand has been taken on the

legality of the Resolution in the Full Court meeting of the High

Court. It has however been submitted by the State that certain

amendments need to be carried out in Rule 21 of the 2001 Rules.

That plea does not come within the scope of the present

proceedings.

14. The petitioners’ main case rests on two planks. First one is

that the decision of the Full Court on the administrative side goes

10

contrary to the Recruitment Rules, Regulations and the Terms

contained in the advertisement. The second plank of the

submissions advanced by the petitioners is that in any event, after

the performance of each of the candidate is known and the marks

obtained by them in the two forms of the examination are disclosed,

it was impermissible for the High Court Administration to introduce

fresh cut-off marks. On this point, the authority relied upon by Mr.

Dave is a judgment of a Constitution Bench comprising of five

Hon’ble Judges of this Court in the case of Sivanandan C.T. &

Ors. Vs. High Court of Kerala [(2023) INSC 709)] decided on 12

th

July, 2023. This judgment narrates the factual background of that

case in paragraph ‘7’ thereof and the ratio of this decision would

emerge from paragraphs ‘52’ to ‘57’ of the said judgment. These

passages from the judgment are quoted below:-

“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 th e written examination as

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

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.

x x x

11

52. The statutory rule coupled with the scheme of examination

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 viva voce.

Moreover, the petitioners would have expected no minimum

cutoff 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?

53. 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.

54. 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

require that the public authorities should act in a fair,

consistent, and predictable manner.

55. 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 District 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:

12

[…]

(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

Other 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)

56.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 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 cutoff 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.

57. 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. The 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.”

15. There is an earlier judgment of this Court comprising of

13

three Hon’ble Judges in the case of K.Manjusree -vs- State of

Andhra Pradesh and Anr. [(2008) 3 SCC 512] in which the change

of recruitment criteria mid-way through the selection process has

been held to be impermissible. We quote below paragraphs ‘27’ and

‘36’ of that judgment from the said report:-

“27. But what could not have been done was the second

change, by introduction of the criterion of minimum marks

for the interview. The minimum marks for interview had

never been adopted by the Andhra Pradesh High Court

earlier for selection of District & Sessions Judges, (Grade

II). In regard to the present selection, the Administrative

Committee merely adopted the previous procedure in

vogue. The previous procedure as stated above was to

apply minimum marks only for written examination and

not for the oral examination. We have referred to the proper

interpretation of the earlier Resolutions dated 24.7.2001

and 21.2.2002 and held that what was adopted on

30.11.2004 was only minimum marks for written

examination and not for the interviews. Therefore,

introduction of the requirement of minimum marks for

interview, after the entire selection process (consisting of

written examination and interview) was completed, would

amount to changing the rules of the game after the game

was played which is clearly impermissible. We are fortified

in this view by several decisions of this Court. It is

sufficient to refer to three of them - P. K. Ramachandra Iyer

v. Union of India

1

, Umesh Chandra Shukla v. Union of

India

2

, and Durgacharan Misra v. State of Orissa

3

.

x x x

36. The Full Court however, introduced a new requirement

as to minimum marks in the interview by an interpretative

process which is not warranted and which is at variance

with the interpretation adopted while implementing the

current selection process and the earlier selections. As the

Full Court approved the Resolution dated 30.11.2004 of

the Administrative Committee and also decided to retain

the entire process of selection consisting of written

examination and interviews it could not have introduced a

new requirement of minimum marks in interviews, which

1 (1984) 2 SCC 141: 1984 SCC (L &S) 214

2 (1985) 3 SCC 721: 1985 SCC (L&S) 919

3 (1987) 4 SCC 646: 1988 SCC (L & S) 36: (1987) 5 ATC 148

14

had the effect of eliminating candidates, who would

otherwise be eligible and suitable for selection. Therefore,

we hold that the action of Full Court in revising the merit

list by adopting a minimum percentage of marks for

interviews was impermissible.”

16. The same view has later been taken by a Coordinate Bench of

this Court in the case of Hemani Malhotra -vs- High Court of

Delhi [(2008) 7 SCC 11]. In a later decision, Tej Prakash Pathak &

Ors. -vs- Rajasthan High Court and Others [(2013) 4 SCC 540], a

three Judge Bench of this Court expressed a view which is different

from that taken in the case of K. Manjusree (supra) and referred

the matter to the Hon’ble the Chief Justice of India for being

considered by a larger Bench. There is no decision yet from a larger

Bench and until the principle laid down in the case of K.

Manjusree (supra) is overruled by a larger Bench, we shall continue

to be guided by the same as “no change in the rule midway” dictum

has become an integral part of the service jurisprudence.

17. The next point urged by Mr. Gupta is that the ratio of the three

judgments on which reliance has been placed by Mr. Dave would

not apply in the facts of the present case. His argument is that in

those three authorities, the marking in viva-voce was the subject of

dispute whereas in the present writ petitions, it is on aggregate

marking that the High Court administration has raised the bar. One

15

of the authorities on which Mr. Gupta has relied on is State of

Haryana -vs- Subash Chander Marwaha & Ors . [(1974) 3 SCC

220]. In paragraphs 7 and 12 of the said report, it has been held

and observed by a Bench of two Hon’ble Judges of this Court:-

“7. In the present case it appears that about 40 candidates

had passed the examination with the minimum score of

45%. Their names were published in the Government

Gazette as required by Rule 10(1) already referred to. It is

not disputed that the mere entry in this list of the name of

candidate does not give him the right to be appointed The

advertisement that there are 15 vacancies to be filled does

not also give him a right to be appointed. It may happen

that the Government for financial or other administrative

reasons may not fill up any vacancies. In such a case the

candidates, even the first in the list, will not have a right to

be appointed. The list is merely to help the State

Government in making the appointments showing which

candidates have the minimum qualifications under the

Rules. The stage for selection for appointment comes

thereafter, and it is not disputed that under the

Constitution it is the State Government alone which can

make the appointments. The High Court does not come into

the picture for recommending any particular candidate.

After the State Government have taken a decision as to

which of the candidates in accordance with the list should

be appointed, the list of selected candidates for

appointment is forwarded to the High Court then will have

to enter such candidates on a Register maintained by it.

When vacancies are to be filled the High Court will send in

the names of the candidates in accordance with the select

list and in the order they have been placed in that list for

appointment in the vacancies. The High Court, therefore,

plays no part except to suggest to the Government who in

accordance with the select list is to be appointed and in a

particular vacancy. It appears that in the present case the

Public Service Commission had sent up the rolls of the first

15 candidates because the Commission had been informed

that there are 15 vacancies. The High Court also in its

routine course had sent up the first 15 names to the

Government for appointment. Thereupon the Chief

Secretary to Government, Haryana wrote to the Registrar of

the High Court on May 4, 1971 as follows:

“I am directed to refer to Haryana Government endst No.

16

1678-1 GS, II—71/3802, dated April 22, 1971, on the

subject noted above, and to say that after careful

consideration of the recommendations of the Punjab and

Haryana High Court for appointment of first fifteen

candidates to the Haryana Civil Service (Judicial Branch),

the State Government have taken the view that it would be

appropriate that only the first seven candidates should be

appointed to the Haryana Civil Service (Judicial Branch)

and a notification has been issued accordingly. The reason

is that in the opinion of the State Government, only those

candidates who obtained 55% or more marks in the

Haryana Civil Service (Judicial Branch) Examination,

should be appointed as that will serve to maintain a

minimum standard in the appointments to the Service. It

may be mentioned that the last candidate appointed

against un-reserved vacancies out of the merit list prepared

on the basis of the Haryana Civil Service (Judicial Branch)

Examination held in May 1969, secured 55.67% marks.

The State Government have also received information that

the Punjab and Haryana High Court themselves

recommended to the Punjab Government that in respect of

P.C.S. (Judicial Branch) Examination held in 1970,

candidates securing 55% marks or more should be

appointed against un-reserved vacancies. Thus, the

decision taken by Haryana Government is in line with the

recommendations which the High Court made to the

Punjab Government regarding recruitment to the P.C.S.

(Judicial Branch) on the basis of the Examination held in

1970, and a similar policy in both the cases would be

desirable for obvious reasons.”

12. It was, however, contended by Dr Singhvi on behalf of

the respondents that since Rule 8 of Part C makes

candidates who obtained 45% or more in the competitive

examination eligible for appointment, the State Government

had no right to introduce a new rule by which they can

restrict the appointments to only those who have scored

not less than 55%. It is contended that the State

Government have acted arbitrarily in fixing 55% as the

minimum for selection and this is contrary to the rule

referred to above. The argument has no force. Rule 8 is a

step in the preparation of a list of eligible candidates with

minimum qualifications who may be considered for

appointment. The list is prepared in order of merit. The one

higher in rank is deemed to be more meritorious than the

one who is lower in rank. It could never be said that one

who tops the list is equal in merit to the one who is at the

bottom of the list. Except that they are all mentioned in one

list, each one of them stands on a separate level of

competence as compared with another. That is why Rule

17

10(ii), Part C speaks of “selection for appointment”. Even

as there is no constraint on the State Government in

respect of the number of appointments to be made, there is

no constraint on the Government fixing a higher score of

marks for the purpose of selection. In a case where

appointments are made by selection from a number of

eligible candidates it is open to the Government with a

view to maintain high standards of competence to fix a

score which is much higher than the one required for more

eligibility. As shown in the letter of the Chief Secretary

already referred to, they fixed a minimum of 55% for

selection as they had done on a previous occasion. There is

nothing arbitrary in fixing the score of 55% for the purpose

of selection, because that was the view of the High Court

also previously intimated to the Punjab Government on

which the Haryana Government thought fit to act. That the

Punjab Government later on fixed a lower score is no

reason for the Haryana Government to change their mind.

This is essentially a matter of administrative policy and if

the Haryana State Government think that in the interest of

judicial competence persons securing less than 55% of

marks in the competitive examination should not be

selected for appointment, those who got less than 55%

have no right to claim that the selections be made of also

those candidates who obtained less than the minimum

fixed by the State Government. In our view the High Court

was in error in thinking that the State Government had

somehow contravened Rule 8 of Part C.”

18. Mr. Gupta has also cited the case of Ram Sharan Maurya

and Ors. Vs. State of U.P. and Ors. [(2021) 15 SCC 401]. It has

been held in this judgment:-

“72. In terms of Rule 2(1)(x) of the 1981 Rules, qualifying

marks of ATRE are such minimum marks as may be

determined “from time to time” by the Government. Clause

(c) of Rule 14 of the 1981 Rules lays down that a

candidate must have “passed Assistant Teacher

Recruitment Examination conducted by the

Government”. Thus, one of the basic requirements for being

considered to be appointed as an Assistant Teacher under

the 1981 Rules is passing of ATRE with such minimum

marks as may be determined by the Government. Unlike

para 7 of the Guidelines for ATRE 2018 which had spelt

out that a candidate must secure minimum of 45% or 40%

marks (for “General” and “Reserved” categories

respectively) for passing ATRE 2018, no such stipulation

18

was available in G.O. dated 1-12-2018 notifying ATRE

2019. Though, the minimum qualifying marks were set out

in the Guidelines for ATRE 2018, it is not the requirement

of the 1981 Rules that such stipulation must be part of the

instrument notifying ATRE. By very nature of entrustment,

the Government is empowered to lay down minimum

marks “from time to time”. If this power is taken to be

conditioned with the requirement that the stipulation must

be part of the instrument notifying the examination, then

there was no such stipulation for ATRE 2019. Such reading

of the rules will lead to somewhat illogical consequences.

On one hand, the relevant Rule requires passing of ATRE

while, on the other hand, there would be no minimum

qualifying marks prescribed. A reasonable construction on

the relevant rules would therefore imply that the

Government must be said to be having power to lay down

such minimum qualifying marks not exactly alongside

instrument notifying the examination but at such other

reasonable time as well. In that case, the further question

would be at what stage can such minimum qualifying

marks be determined and whether by necessity such

minimum qualifying marks must be declared well before

the examination.

73.K. Manjusree [K. Manjusree v. State of A.P., (2008) 3

SCC 512 : (2008) 1 SCC (L&S) 841] and Hemani

Malhotra [Hemani Malhotra v. High Court of Delhi, (2008) 7

SCC 11 : (2008) 2 SCC (L&S) 203] were the cases which

pertained to selections undertaken to fill up posts in

judicial service. In these cases, no minimum qualifying

marks in interview were required and the merit list was to

be determined going by the aggregate of marks secured by

a candidate in the written examination and the oral

examination. By virtue of stipulation of minimum

qualifying marks for interview, certain candidates, who

otherwise, going by their aggregate would have been in

zone of selection, found themselves to be disqualified. The

stipulation of minimum qualifying marks having come for

the first time and after the selection process was

underway or through, this Court found such exercise to be

impermissible.

74. These were cases where, to begin with, there was no

stipulation of any minimum qualifying marks for interview.

On the other hand, in the present case, the requirement in

terms of Rule 2(1)(x) read with Rule 14 is that the minimum

qualifying marks as stipulated by the Government must be

obtained by a candidate to be considered eligible for

selection as Assistant Teacher. It was thus always

contemplated that there would be some minimum

qualifying marks. What was done by the Government by

19

virtue of its orders dated 7-1-2019 was to fix the quantum

or number of such minimum qualifying marks. Therefore,

unlike the cases covered by the decision of this Court in K.

Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512

: (2008) 1 SCC (L&S) 841] , where a candidate could

reasonably assume that there was no stipulation regarding

minimum qualifying marks for interview, and that the

aggregate of marks in written and oral examination must

constitute the basis on which merit would be determined,

no such situation was present in the instant case. The

candidate had to pass ATRE 2019 and he must be taken

to have known that there would be fixation of some

minimum qualifying marks for clearing ATRE 2019.

75. Therefore, there is fundamental distinction between the

principle laid down in K. Manjusree [K. Manjusree v. State

of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] and

followed in Hemani Malhotra [Hemani Malhotra v. High

Court of Delhi, (2008) 7 SCC 11 : (2008) 2 SCC (L&S) 203]

on one hand and the situation in the present case on the

other.

76. We are then left with the question whether prescription

of such minimum qualifying marks by order dated 7-1-

2019 must be set aside merely because such prescription

was done after the examination was conducted. At this

juncture, it may be relevant to note that the basic prayer

made in the leading writ petition before the Single Judge

was to set aside the order dated 7-1-2019. What could

then entail as a consequence is that there would be no

minimum qualifying marks for ATRE 2019, which would

run counter to the mandate of Rule 2(1)(x) read with clause

(c) of Rule 14. It is precisely for this reason that what was

submitted was that the same norm as was available for

ATRE 2018 must be adopted for ATRE 2019. In order to

lend force to this submission, it was argued that Shiksha

Mitras who appeared in ATRE 2018 and ATRE 2019

formed a homogeneous class and, therefore, the norm that

was available in ATRE 2018 must be applied. This

argument, on the basis of homogeneity, has already been

dealt with and rejected.

77. If the Government has the power to fix minimum

qualifying marks “from time to time”, there is nothing in the

Rules which can detract from the exercise of such power

even after the examination is over, provided the exercise of

such power is not actuated by any malice or ill will and is

in furtherance of the object of finding the best available

talent. In that respect, the instant matter is fully covered by

the decisions of this Court in MCD v. Surender

Singh [MCD v. Surender Singh, (2019) 8 SCC 67 : (2019) 2

SCC (L&S) 464] and Jharkhand Public Service

20

Commission v. Manoj Kumar Gupta [Jharkhand Public

Service Commission v. Manoj Kumar Gupta, (2019) 20 SCC

178] . In the first case, the power entrusted under Clause

25 of the advertisement also provided similar discretion to

the Selection Board to fix minimum qualifying marks for

each category of vacancies. While construing the exercise

of such power, it was found by this Court that it was done

“to ensure the minimum standard of the teachers that

would be recruited”. Similarly, in Jharkhand Public Service

Commission [Jharkhand Public Service

Commission v. Manoj Kumar Gupta, (2019) 20 SCC 178] ,

the exercise of power after the examination in Paper III

was over, was found to be correct and justified.

78. If the ultimate object is to select the best available

talent and there is a power to fix the minimum qualifying

marks, in keeping with the law laid down by this Court

in State of Haryana v. Subash Chander Marwaha [State of

Haryana v. Subash Chander Marwaha, (1974) 3 SCC

220 : 1973 SCC (L&S) 488] , State of

U.P. v. Rafiquddin [State of U.P. v. Rafiquddin, 1987 Supp

SCC 401 : 1988 SCC (L&S) 183] , MCD v. Surender

Singh [MCD v. Surender Singh, (2019) 8 SCC 67 : (2019) 2

SCC (L&S) 464] and Jharkhand Public Service

Commission v. Manoj Kumar Gupta [Jharkhand Public

Service Commission v. Manoj Kumar Gupta, (2019) 20 SCC

178] , we do not find any illegality or impropriety in

fixation of cut-off at 65-60% vide order dated 7-1-2019.

The facts on record indicate that even with this cut-off the

number of qualified candidates is more than twice the

number of vacancies available. It must be accepted that

after considering the nature and difficulty level of

examination, the number of candidates who appeared, the

authorities concerned have the requisite power to select a

criteria which may enable getting the best available

teachers. Such endeavour will certainly be consistent with

the objectives under the RTE Act.

79. In the circumstances, we affirm the view taken by the

Division Bench of the High Court and conclude that in the

present case, the fixation of cut-off at 65-60%, even after

the examination was over, cannot be said to be

impermissible. In our considered view, the Government

was well within its rights to fix such cut-off.”

19. In these two writ petitions, we are not, however, only

concerned with the “midway change of the Rule” Principle. But on

that count also, the ratio of the decisions cited by Mr. Gupta are

21

distinguishable. The three Judge Bench in Tej Prakash Pathak

(supra) had referred to the judgment in the case of Subhas

Chandra Marwaha (supra) to express doubt over correctness of the

judgment in the case of K. Manjusree (supra). As we have already

observed, the ratio of K. Manjusree (supra) still holds the field. In

the case of Ram Sharan Maurya (supra), the Rules guiding

recruitment empowered the Government to stipulate qualifying

marks of the particular selection process to be such minimum

marks as may be determined from time to time by the Government.

In this decision, the judgment itself takes note of the decisions of

this Court in K. Manjusree (supra) and Hemani Malhotra (supra)

and finds that the course for selection to the posts involved in that

case was different from that which was found to be impermissible in

K. Manjusree (supra) and Hemani Malhotra (supra).

20. We find from Rule 18 of the 2001 Rules, the task of setting

cut-off marks has been vested in the High Court but this has to be

done before the start of the examination. Thus, we are also dealing

with a situation in which the High Court administration is seeking

to deviate from the Rules guiding the selection process itself. We

have considered the High Court’s reasoning for such deviation, but

such departure from Statutory Rules is impermissible. We accept

22

the High Court administration’s argument that a candidate being on

the select list acquired no vested legal right for being appointed to

the post in question. But if precluding a candidate from

appointment is in violation of the recruitment rules without there

being a finding on such candidate’s unsuitability, such an action

would fail the Article 14 test and shall be held to be arbitrary. The

reason behind the Full Court Resolution is that better candidates

ought to be found. That is different from a candidate excluded from

the appointment process being found to be unsuitable.

21. Stipulations contained in Rule 21 of the 2001 Rules for

making the select list were breached by the High Court

administration in adopting the impugned resolution. The ratio of

the decision in the case of Ram Sharan Maurya (supra) would not

apply in the facts of this case and we have already discussed why

we hold so.

22. Mr. Gupta’s stand is that applying a higher aggregate mark

is not barred under the said Rules or Regulations. We are, however,

unable to accept this submission. The very expression “aggregate”

means combination of two or more processes and in the event the

procedure for arriving at the aggregate has been laid down in the

applicable Rules, a separate criteria cannot be carved out to enable

23

change in the manner of making the aggregate marks.

23. So far as the ratio of the decision in the case of K.

Manjusree (supra) is concerned, that authority deals with change

of the Rules mid-way. In the case before us, in our opinion, if the

High Court is permitted to alter the selection criteria after the

performance of individual candidates is assessed, that would

constitute alteration of the laid down Rules. We refer to paragraphs

Nos. 14 and 15 of the judgment of the Constitution Bench in the

case of Sivanandan C.T. (supra), which lays down the principle of

law on this point. We reproduce below the said passages from this

authority:-

“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.

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

that the broader constitutional issue which has been

24

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. The 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 change 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.”

24. The ratio of this authority is squarely applicable in the facts

of this case. Submission on behalf of the High Court administration

that Rule 14 permits them to alter the selection criteria after the

selection process is concluded and marks are declared is not proper

exposition of the said provision. The said Rule, in our opinion,

empowers the High Court administration in specific cases to

reassess the suitability and eligibility of a candidate in a special

situation by calling for additional documents. The High Court

administration cannot take aid of this Rule to take a blanket

decision for making departure from the selection criteria specified

in the 2001 Rules. The content of Rule 14 has the tenor of a

25

verification process of an individual candidate in assessing the

suitability or eligibility.

25. We, accordingly, allow both the writ petitions by directing

the High Court to make recommendation for those candidates who

have been successful as per the merit or select list, for filing up the

subsisting notified vacancies without applying the Full Court

Resolution that requires each candidate to get 50 per cent aggregate

marks. The part of the Full Court Resolution of the Jharkhand High

Court dated 23.03.2023 by which it was decided that only those

candidates who have secured at least 50% marks in aggregate shall

be qualified for appointment to the post of District Judge is

quashed.

26. We expect the exercise of recommendation in terms of this

judgment to be completed as expeditiously as possible.

27. We do not find any reason to address the impleadment

applications as this judgment will cover the entire recommendation

process.

…………………………………...J.

[ANIRUDDHA BOSE]

…………………………………...J.

[SANJAY KUMAR]

NEW DELHI;

FEBRUARY 01, 2024

26

ITEM NO.12 COURT NO.5 SECTION X

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Writ Petition (Civil) No. 753/2023

SUSHIL KUMAR PANDEY & ORS. Petitioner(s)

VERSUS

THE HIGH COURT OF JHARKHAND & ANR. Respondent(s)

(IA No. 173928/2023 - INTERVENTION/IMPLEADMENT

IA No. 140754/2023 - STAY APPLICATION)

WITH

W.P.(C) No. 921/2023 (X)

(IA No. 177197/2023 - STAY APPLICATION)

Date : 01-02-2024 These matters were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE ANIRUDDHA BOSE

HON'BLE MR. JUSTICE SANJAY KUMAR

For Petitioner(s) Mr. Vinay Navare, Sr. Adv.

Mr. Mahesh Thakur, AOR

Ms. Neha Singh, Adv.

Mrs. Geetanjali Bedi, Adv.

Mr. Ranvijay Singh Chandel, Adv.

Mr. Shivamm Sharrma, Adv.

Ms. Shivani, Adv.

Mr. Prithvi Pal, AOR

Mr. Sanjay Kumar Yadav, Adv.

Mr. Manoj Jain, Adv.

Mr. K Karpagavinagagam, Sr. Adv.

Ms. Kiran Bhardwaj, Adv.

Mr. C Aravind, Adv.

Mr. K V Mathu Kumar, Adv.

Ms. Geeta Verma, Adv.

Mr. Syed Imtiyaz, Adv.

Mr. Usman Khan, Adv.

Ms. Madhurima Sarangi, Adv.

Mr. Naeem Ilyas, Adv.

Mr. Towseef Ahmad Dar, AOR

Mr. Dushyant Dave, Sr. Adv.

Ms. Meenakshi Arora, Sr. Adv.

27

Mr. Danish Zubair Khan, AOR

Dr. Lokendra Malik, Adv.

Mr. Surya Nath Pandey, AOR

Mr. Jayant K. Sud, Sr. Adv.

Mr. Durga Dutt, AOR

Mr. Rohit Priyadarshi, Adv.

Mr. Upendra Narayan Mishra, Adv.

Mr. Satyendra Kumar Mishra, Adv.

Ms. Rashi Verma, Adv.

Mr. Somesh Kumar Dubey, Adv.

Mr. Kartik Jasra, Adv.

Mr. Prannit Stefano, Adv.

Mr. Shivam Nagpal, Adv.

For Respondent(s) Mr. Jaideep Gupta, Sr. Adv.

Ms. Susmita Lal, AOR

Ms. Racheeta Chawla, Adv.

Ms. Racheeta Chawla, Adv.

Mr. Kamakhya Srivastava, Adv.

Mr. Kamakhya Srivastava, Adv.

Mr. Arunabh Chowdhury, Sr. Adv, A.A.G.

Mr. Rajiv Shanker Dvivedi, Adv.

Ms. Tulika Mukherjee, AOR

Mr. Karma Dorjee, Adv.

Mr. Dechen W. Lachungpa, Adv.

Mr. Beenu Sharma, Adv.

Mr. Venkat Narayan, Adv.

Mr. Danish Zubair Khan, AOR

UPON hearing the counsel the Court made the following

O R D E R

The present writ petitions are allowed in

terms of the signed reportable judgment.

Pending application(s), if any, shall stand

disposed of.

(SNEHA DAS) (VIDYA NEGI)

SENIOR PERSONAL ASSISTANT ASSISTANT REGISTRAR

(Signed reportable judgment is placed on the file)