Abhimeet Sinha & Ors. vs High Court of Judicature at Patna & Ors.

Held: Prescription of minimum qualifying marks for interview is permissible – It is not in violation of *All India Judges (2002) case which accepted certain recommendations of the Shetty Commission – Judgment in *All India Judges (2002) case is sub* Author silentio on the aspect of minimun marks for interview – It cannot be considered as having authoritatively pronounced on doing away with minimum cut-off marks in the interview segment – In case of inconsistency between the Shetty Commission recommendations and the Rules, primacy should be given to the existing statutory Rules – In the absence of existing Rules, the High Court should follow the directions of this Court – Furthermore, even though the statutory Rules can be supplemented to fill in gaps, the High Court cannot act contrary to the Rules – Prescription of minimum cutoff in the recruitment process was notified for information of the candidates well before the commencement of the selection process under the Patna High Court – By virtue of the decision in *All India Judges (2002), it cannot be said that adequate elbow room was not available to prescribe qualifying marks in the interview segment to ensure the selection of the best possible person – Thus, the prescription of minimum marks in the Rules is not found to be in contravention of the judgment in the *All-India Judges (2002) – Bihar Superior Judicial Service Rules, 1951 – Gujarat State Judicial Service Rules, 2005. [Paras 102, 37, 39, 40, 48, 49] Judiciary – Selection of judicial officers – Rule 8(5) of Gujarat Rules, 2005 and Clause 11 of the Bihar Rules prescribing minimum qualifying marks in the viva voce test as a part of the selection criteria for appointment, if violative of Art. 14 and 16: Held: Validity challenge to Clause 11 of the Bihar Rules, 1951 and s. 8(3) of the Gujarat Rules, 2005 (as amended in 2011) prescribing minimum marks for interview are repelled – Recruitment procedure should not only test the candidate’s intellect but also their personality, for appointment to posts in the higher judiciary - In recruitment for judicial vacancies oral interviews play an important role to test the personality and caliber of the aspirant to judicial posts – High scores for the written test by itself do not determine the merit and suitability of an aspirant – An interview can also provide a medium for marginalized candidates to showcase their talents in ways which a written test may not possibly allow – Members of the interview board can provide a level-playing field during the interview process for those who come from a disadvantaged background, to assess the true merit and potential of the interviewees – Solution lies in the interviewing members being aware and sensitive to alleviate bias in the process of interview – However, the apprehension of bias cannot be the sole ground to strike down a Rule – Overriding weightage to the viva voce segment has been frowned upon but the prescription of reasonable qualifying cut-off marks is not considered discriminatory – Minimum cut-off of 20% for the Bihar recruitment and 40% for the Gujarat recruitment , cannot be considered to provide a high threshold if one keeps in mind that the recruitment is for selection of judicial officers – Thus, the concerned recruitment Rules not unconstitutional – There is no violation of the legitimate expectation of the writ petitioners so as to fail the test u/Art. 14 –Bihar Superior Judicial Service Rules, 1951 –Gujarat State Judicial Service Rules, 2005. [Paras 102, 57, 60, 63, 65, 66, 68]

Judiciary – Selection of judicial officers – District Judge (Entry Level) by direct recruitment from the Bar for the State of Bihar and recuitment to the post of Civil Judge in the State of Gujarat – Rules stipulating minimum qualifying marks in the viva voce test as a part of the selection criteria for appointment – Selection process, if vitiated given the moderation of marks and corrective steps:

Held: Selection process in the State of Bihar found to be legally valid and are upheld – On examination of the subsequent steps taken by the High Court after conducting the exam, no mala fide or statutory violation found so as to vitiate the entire selection process in Bihar – High Court was vested with requisite powers to provide clarification, relaxation and even exemption in the interest of the Judiciary – Words “relaxation” as also the general power to issue orders/directions in case of any “difficulty”, would permit the process of moderation in order to provide for the adequate number of candidates for the interview test – In a moderation exercise, addition of marks and/or deduction of marks is envisaged – If certain resolvable deficiencies are noticed in the selection process, the High Court has the elbow room to take corrective measures – Process of moderation can always be exercised bona fide if it uniformly benefits all the candidates – It cannot be said that corrective measures were not bonafide – Process adopted is consistent with the Rules – Chart produced makes it clear that moderation, in fact, benefited the writ petitioners to facilitate their participation in the interview round – Decision of the Selection Committee was approved by the Full Court for increasing the number of candidates available for final selection – As regards, Gujarat cases, besides making vague allegations, nothing presented to demonstrate any malicious intent or bias on the part of the selection Committee in the interview process – Thus, the selection process not found to be tainted – Bihar Superior Judicial Service Rules, 1951 – Gujarat State Judicial Service Rules, 2005. [Paras 102, 80, 75, 76, 78, 79] Constitution of India – Art.234 – Appointment of persons other than district judges to the judicial service – Selection to the post of Civil Judge in the State of Gujarat – Non-consultation with the Public Service Commission as required u/Art. 234 for amending the selection Rules-Gujarat Rules, 2005(as amended in 2011) stipulating minimum viva voce marks, if rendered void: Held: Non-consultation with the Public Service Commission would not render the Gujarat Rules, 2005 (as amended in 2011) void – In Gujarat, when the Public Service Commission did not wish to be consulted under the proviso to Art. 320(3), in the absence of such consultation, it cannot be held that the Gujarat Rules, 2005 suffers from any legal or constitutional invalidity particularly when the Rules were framed with due consultation with the High Court – Consultation with the High Court as envisaged in Art. 234 is to preserve the constitutional mandate of the independence of the judiciary – Consultation with the High Court must be given primacy in matters of judicial recruitment as compared to the consultation with the Public Service Commission – Governor is under no compulsion to consult the Public Service Commission in case the Commission does not wish to be consulted – Gujarat Rules cannot, thus, be declared to be void on this count – Status which the High Court as an institution enjoys in the constitutional scheme and the expertise and the experience which it possesses of judicial services, justify a place of primacy being assigned to the High Court in the process of consultation – Thus, it is mandatory to consult the High Court for framing Rules and any Rule enacted by the State Government without such consultation is ultra vires. [Paras 102, 97,87, 93, 96]

Judiciary – Recruitment/Selection of judicial officers – Certain directions/suggestions as regards the conduct of judicial service examinations:

Held: Processes such as moderation should be preferably set out in the Rules to ensure transparency and avoid dilemmas in the selection process – Moderation of marks for bonafide reasons should be permitted when the authority needs to do so, to address the issue of non availability of adequate number of candidates for consideration in the interview segment – Furthermore, there is absence of a designated authority that can be approached by the candidates – Concerned High Court to notify a designated authority for a given recruitment process with clearly defined roles, functions and responsibilities – Candidates can approach such a designated authority to seek clarification in case of any doubt and this would assuage the anxiety of the candidates to a considerable extent – Designation of those in the interview panel, be provided for appropriately, in the Rules – Basic outline of the syllabus for the proposed test to be provided, to help candidates from diverse backgrounds to plan and prepare for the proposed examination even before the examination notification is released – Also the recruitment process must adhere to the timeline but if there is any special and unavoidable exigency, the stakeholders should be kept informed with due promptitude – Said judgment to be brought to the notice of the Hon’ble Chief Justices of all the High Courts in India to enable all the stakeholders to take consequential steps. [Paras 100, 101] Constitution of India – Art. 32 – Writ petition – Maintainability – Principle of estoppel – Applicability – Matter pertaining to constitutionality of the Rules stipulating minimum qualifying marks in the viva voce test as a part of the selection criteria for appointment to the District Judiciary in the States of Bihar and Gujarat – Plea of the various High Courts that after having participated in the recruitment process, the writ petitioners having not succeeded, cannot turn around and challenge the recruitment process or the vires of the Recruitment Rules; that all candidates knew about the prescription of minimum marks for viva voce, well before the selection process commenced and the principle of estoppel would operate against the unsuccessful challengers whereas the writ petitioners pleaded that the principle of estoppel not applicable since glaring illegalities in the selection process; and that the estoppel is not applicable when the arbitrariness affects fundamental rights u/Art. 14 and 16:

Held: Principle of estoppel cannot override the law – In matters like this, to non-suit the writ petitioners at the threshold would hardly be reasonable when the alleged deficiencies in the process could be gauged only by participation in the selection process. [Paras 19-20] Constitution of India – Art. 32 – Principle of res judicata – Instant matter as regards constitutionality of the Rules stipulating minimum qualifying marks in the viva voce test as a part of the selection criteria for appointment to the District Judiciary in the States of Bihar and Gujarat respectively – Validity of r. 8(3) of the Gujarat Rules, 2005 (as amended) was earlier challenged before the Supreme Court, and this Court transferred the said writ petition to the Gujarat High Court wherein the High Court upheld the validity of the amendment prescribing 40% cutoff marks for interview, and Special Leave Petition thereagainst was dismissed – Principle of res judicata, if attracted:

Held: Principle of res judicata cannot however be applied stricto sensu – It was not the same writ petitioner who has approached this Court under Art. 32 – Court here is confronted with a different set of facts, another set of litigants who have raised additional contentions – Thus, the submission that the writ petition should not be dismissed on the ground of res-judicata, is reasonable – In any case, the dismissal of Special Leave Petition has no consequence on the question of law. [Para 23]

Judiciary – Selection of judicial officers – *All India Judges (2002) matter which accepted certain recommendations of the Shetty Commission while modifying or rejecting a few others – Explained.[Paras 33, 34, 36, 37, 49]

Judiciary – Selection of judicial officers – Recommendations of the Shetty Commission – Genesis – Explanation of. [Paras 25-32] Judiciary – Selection of judicial officers – Recommendations of the Shetty Commission – Implementation of:

Held: On facts, minimum cut-off as per the amended Rules was 55% and this was further lowered to 50% as per proviso to Clause

10 of Bihar Rules, 1951 – There cannot be selective implementation of the Shetty Commission recommendation, for doing away with the cut-off marks in the viva voce segment – Candidates cannot be allowed to “approbate and reprobate” in the same breath – It would be impermissible to seek dilution of the Shetty Commission recommended criteria, only for the viva voce segment– Shetty Commission recommended that the degree of subjectivity and arbitrariness should be reduced and the selection should be transparent. [Paras 30, 31]

Gujarat State Judicial Service Rules, 2005 – r. 8(5) – Viva voce – Object – Explained. [Para 67]