Petitions Challenging Kerala District Judge Selection Referred To Larger Bench [Read Order]

A two Judge bench of the Supreme Court has referred the petitions challenging the selection process of Kerala Higher Judicial Service (District & Sessions Judges) to the Larger Bench.

The bench of Justices Kurian Joseph and R Bhanumathi was hearing a petitions filed by the unsuccessful candidates challenging the selection process.

The petitioners submitted that as per the Notification issued by the High Court, the selection process was consisted of written examination and viva voce and the final rank list should be prepared based on the aggregate marks scored in both. But the High Court contrary to notification, imposed a condition of 50% marks mandatory for viva voce.

During the hearing, the court observed that a similar matter has been referred to constitution bench.

The matter was referred to larger bench as there was a difference of opinion between Justice Banumati and Justice Shiva Kirti Singh in the case of Salam Samarjeet Singh vs High Court of Manipur at Imphal & Anr.

Samarjeet Singh Case Background

Salam Samarjeet Singh, an aspirant for the district judge post, was declared unsuccessful in viva voce conducted by the high court for failing to get 40% marks. Though there were no minimum marks prescribed in the rules and advertisement, the full court took a decision that “no one shall be declared pass and selected for appointment unless he secures minimum 40% from the interview”.

Justice Shiva Kirti Singh and Justice R Banumathi expressed divergent views in the matter, regarding the challenge against prescribing minimum marks for viva voce conducted by the High Court of Manipur for appointment to the post of district judge (entry level).

Justice Banumathi dismissed the writ petition he filed before the apex court, observing that when the decision of the full court was to ensure selection of a meritorious candidate, it cannot be said the decision of the high court amounted to change in the criteria of selection after the selection process had started. It was also held that keeping in view the rules and having regard to the seniority of the post, which is district judge (entry level), the high court cannot be faulted with for exercising its residuary right reserved in its favour by prescribing cut-off marks for the interview.

Justice Banumathi’s dissenting opinion may not be fully applicable in the present selection issue as the judge had opined in the above case that “had the high court convened the full court meeting after conducting the viva-voce and had then prescribed the minimum qualifying marks, the contention of the petitioner would have been justified”, which is the moot issue in Kerala case.

Justice Shiva Kirti Singh, in his separate dissenting opinion, allowed the writ petition and observed that the high court resolution was not communicated to the petitioner and it was neither a part of the rules nor of the advertisement and, hence, the theory that if a candidate takes a calculated chance and faces the selection procedure, then on the result being unfavourable, he cannot be permitted to turn around and challenge the process of selection, is not at all attracted.

The theory rests on the hypothesis that the impugned procedure or rule is already in public domain and the candidate must, therefore, be aware of it when he participates, Justice Singh said.

Petitioners' contentions 

The petitioners also submitted that it is impermissible to change the norms of selection after the selection process has commenced.

“Moreover, the decision of the Hon’ble High Court to prescribe minimum marks for viva voce is against Shetty Commission’s recommendations, which was accepted by the Hon’ble Supreme Court in All India Judges Association case AIR 2002 SC 1752. The decision of the Hon’ble High Court to exclude the candidates who did not obtain 50% marks in the viva voce is contrary to the law declared by a three Judge Bench of the Hon’ble Supreme Court in Ramesh Kumar Vs. High Court of Delhi – 2010 (3) SCC 104”, it said.

Petitioners also submitted that that in a similar circumstance, where the High Court of Delhi declined appointment to the post of District Judge on the ground that the candidate did not secure minimum marks in the interview, a three Judge Bench of the  Supreme Court allowed Writ Petition filed under Article 32 of the Constitution of India and held that in the absence of any statutory requirement of securing minimum marks for interview, appointment cannot be denied – Ramesh Kumar Vs. High Court of Delhi .

“In the view of the law declared by the Hon’ble Supreme Court in Ramesh Kumar’s case, the decision taken by the Hon’ble High Court to prescribe minimum marks for the viva voce is arbitrary and illegal”, states the petition.