Supreme Court Refuses To Interfere With Selection Process To Judicial Services By Gauhati, Gujarat, Patna High Courts

The Supreme Court recently refused to interfere with the selection process to judicial services conducted by the Gauhati High Court, Gujarat High Court and Patna High Court in a batch of matters being heard by the Top Court in a reference made to the Constitution Bench in Tej Prakash Pathak and others v. Rajasthan High Court and others (2013) 4 SCC 540.

A Constitution Bench led by Chief Justice DY Chandrachud and comprising  Justices Hrishikesh Roy, PS Narasimha, Pankaj Mithal and Manoj Misra was hearing a reference on the issue whether appointing authorities can change the norms of selection during the middle of the process. The reference was made in view of conflicting judgments on the point "whether the rules of the game can be changed after the game has begun".

The matter was referred to the Constitution bench by a 3-judge bench in the case of Tej Prakash Pathak and others v. Rajasthan High Court and others (2013) 4 SCC 540. In Tej Prakash, the bench doubted the correctness of an earlier decision in K. Manjusree v. State of Andhra Pradesh and another (2008) 3 SCC 512, where it was held that the selection criteria cannot be changed midway during the process as "it would amount to changing the rules of the game after the game was played which is clearly impermissible". The Manjusree case held as invalid a subsequent introduction of cut-off for the interview marks, which was not originally stipulated in the notification. In Tej Prakash, the three-bench judge doubted whether the prohibition against changing the rules of the game could be held as absolute and non-negotiable.

Along with the referred matter, several petitions challenging the selection process carried out by various High Courts were also posted. While considering the issue, the Court refused to interfere with the selection process to judicial services conducted by the Gauhati High Court, Gujarat High Court  and Patna High Court.

Challenge to Assam judicial services selection

In Biswajit Prasad V. Gauhati High Court and connected matters, the Court held that the issue raised in the reference to the Constitution Bench did not arise in the said case and dismissed the plea. The Court noted that a cut off of 40% marks was prescribed by the Committee for Recruitment only after the interview was conducted. The Court observed that the minutes of meeting placed on record showed that no cut off was prescribed for the interview. The Court concluded that the merit list was drawn up on the basis of a cumulative aggregation of the marks obtained in three papers of the written test and the interview mark. The Court also observed that selection pertains to 2011 and that the officers selected in pursuance of the impugned selection process have already taken charge. The High Court also informed the Apex Court in this matter that two further selections have taken place for the State Judicial Service.

Challenge to Bihar judicial services selection

In Avinash Kumar V. High Court of Judicature at Patna, the Court dismissed the petition observing that even though the petitioner did not qualify in the selection process for district judges in 2015-2016, he subsequently qualified and joined service in 2017. The bench also noted that there was no provision for re-evaluation of the answer sheets at the relevant time.

In Subhagam Kumar v. High Court of Judicature at Patna, the Apex Court noted that the issue raised did not pertain to the reference Tej Prakash Pathak and directed them to be de-tagged from the batch of matters in reference and to be placed before a two-Judge Bench.

Challenge to Gujarat judicial services selection

In Somya V High Court of Gujarat and connected matters, the Apex Court observed that the issue raised in reference in Tej Prakash Pathak v Rajasthan High Court did not arise in the said cases. The matter was thus de linked from the batch of cases in reference and directed to be placed before an appropriate Bench for disposal.

Recently, the Constitution Bench while hearing the matters related to the reference, held as illegal the process followed by the Kerala High Court in fixing a cut-off mark on the basis of viva-voce for the selection of District Judges in March 2017. The Court noted that cut-off was fixed by the High Court after the conduct of the viva voce, which was "manifestly arbitrary". Even though the Apex Court held that the Kerala High Court erred in fixing cut-off for viva-voce in 2017 district judge selection, it refrained from unseating selected candidates.

The Supreme Court had noted that the provisions of the Kerala State Higher Judicial Services Special Rules, 1961 (the 1961 Rules) provided that aggregate of the written test and the viva voce would be taken into consideration for appointment. The exam scheme and the recruitment notification also did not stipulate any cut-off for viva-voce. Hence, the process was held to be "ultra-vires" the rules. However, the Court refrained from invalidating the selection of candidates in view of the fact that six years have elapsed since their appointment, during which the appointed candidates have performed judicial functions. "Unseating them would be harsh and would result in a situation where higher judiciary would lose the services of duly qualified candidates who have gained experience over the last six years", the Court observed in the order. In a succour to the petitioners, the Court clarified that their failure to get selected will not be treated as a reflection on their merit and that it will not come in their way in future selections.

Click here to read the order