Kerala State Higher Judicial Services Special Rules 1961 – rule 2(c)
(iii) – The scheme which was notified by the High Court on 13.12.2012 clearly specified that there would be no cut off marks in respect of the viva-voce – However, the decision of the High Court to prescribe a cutoff for the viva-voce examination was taken much after the viva-voce tests were conducted – Propriety:
Held: 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 – Such a change would be required to be brought in by a substantive amendment to the Rules which came in much later – 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 – 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 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 30.09.2015 – In this backdrop, the decision of the High Court suffered from its being ultra vires the 1961 Rules besides being manifestly arbitrary. [Paras 15 and 16]
Doctrines – Doctrine of legitimate expectation – Claim under: Held: An individual who claims a benefit or entitlement based on the doctrine of legitimate expectation has to establish: (i) the legitimacy of the expectation; and (ii) that the denial of the legitimate expectation led to the violation of Article 14. [Para 44]
Doctrines – Doctrine of legitimate expectation – Whether the High Court’s decision frustrates the legitimate expectation of the petitioners: Held: 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 – The 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 – 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 – In the instant case, the requirement of a minimum cut-off for the viva-voce was introduced after the viva voce was conducted – The petitioners had no notice that such a requirement would be introduced for the viva voce examination – 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, such a course of action is arbitrary and violative of Article 14. [Paras 46, 47, 51 and 52] Principles – Principles of good administration:
Held: 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. [Para 55]
Doctrines – Doctrine of legitimate expectation – Limitation in application of:
Held: 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. [Para 55] Directions – The High Court’s decision to apply a minimum cutoff for the viva voce frustrated the substantive legitimate expectation of the petitioners – The decision of the High Court is legally untenable – Whether the petitioners can be inducted into the Higher Judicial Service:
Held: In terms of relief, it would be contrary to the public interest to direct the induction of the petitioners into the Higher Judicial Service after the lapse of more than six years – Candidates who were 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. [Para 55]
LIST OF CITATIONS AND OTHER REFERENCES
Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1: [2006]
3 SCR 953 – followed.
Food Corporation of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 : [1992] 2 Suppl. SCR 322; Union of India v. Hindustan Development Corporation (1993) 3 SCC 499: [1993] 3 SCR 128; Punjab Communication Ltd v. Union of India (1999) 4 SCC 727: [1999] 2 SCR 1033; Ram Pravesh Singh v. State of Bihar (2006) 8 SCC 381: [2006] 6 Suppl. SCR 512; State of Jharkhand v. Brahmputra Metallics 2020 SCC OnLine SC 968; SEBI v. Sunil Krishna Khaitan (2023) 2 SCC 643 – relied on. Sivanandan C T v. High Court of Kerala (2018) 1 SCC 239: [2017]
13 SCR 226; Tej Prakash Pathak and others v. Rajesthan High Court and others (2013) 4 SCC 540; K. Manjusree v. State of Andhra Pradesh and another (2008) 3 SCC 512: [2008] 2 SCR 1025; State of Haryana v. Subash Chander Marwaha (1974) 3 SCC 220: [1974] 1 SCR 165; State of Bihar v. Bal Mukund Sah (2000) 4 SCC 640: [2000] 2 SCR 299; M P Oil Extraction v. State of M P (1997) 7 SCC 592: [1997] 1 Suppl. SCR 671; National Building Construction Corporation v. S Raghunathan (1998) 7 SCC 66 : [1998] 1 Suppl. SCR 156; Bannari Amman Sugars Ltd v. CTO (2005) 1 SCC 625: [2004] 6 Suppl. SCR 264; Sethi Auto Service Station v. DDA (2009)
1 SCC 180 : [2008] 14 SCR 598; Monnet Ispat & Energy Ltd v. Union of India (2012) 11 SCC 1: [2012] 7 SCR 644; P Suseela v. University Grants Commission (2015) 8 SCC 129 : [2015] 5 SCR 643; Kerala State Beverages (M&M) Corp Ltd. v. P P Suresh (2019) 9 SCC 710: [2019] 17 SCR 164; State of Jharkhand v. Brahmputra Metallics 2020 SCC OnLine SC 968; Union of India v. Hindustan Development Corp (1993) 3 SCC 499 : [1993]
3 SCR 128; State of Bihar v. Shyama Nandan Mishra, 2022 SCC OnLine SC 554; NOIDA Entrepreneurs Association v. NOIDA (2011) 6 SCC 508 : [2011] 8 SCR 25; State of Bihar v. Shyama Nandan Mishra 2022 SCC OnLine SC 554; S G Jaisinghani v. Union of India 1967 SCC OnLine SC 6; Bannari Amman Sugars Ltd v. CTO (2005) 1 SCC 625: [2004] 6 Suppl. SCR 264; Union of India v. Lt. Col. P K Choudhary (2016) 4 SCC 236 : [2016] 2 SCR 426; State of Jharkhand v. Brahmputra Metallics 2020 SCC OnLine SC 968 – referred to.
Salemi v. Mackellar [1977] HCA 26; Schmidt v. Secretary of State for Home Affairs [1969] 2 WLR 337; O’Reilly v. Mackman [1983] 2 AC 237; Attorney General of Hong Kong v. Ng Yuen Shiu [1983] 2 WLR 735; Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374; R v. North and East Devon Health Authority, ex parte Coughlan [2001] QB 213; Nadarajah v. Secretary of State for the Home Department [2005] EWCA Civ 1363; R v. Department of Education and Employment [2000] 1 WLR 1115; Paponette v. Attorney General of Trinidad and Tobago [2012]
1 AC 1; Regina (Bibi) v. Newham London Borough Council [2002] 1 WLR
237 – referred to.
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