The issue arose in a batch of cases relating to the selection process of District Judges conducted by certain High Courts. The primary question is whether the selection criteria can be changed during the process.
At the outset, the five-judge constitution bench of Justices Indira Banerjee, Hemant Gupta, Surya Kant, M. M. Sundresh and Sudhanshu Dhulia posed to the advocates in the matter, "When there is a change in rules with respect to qualification, eligibility, then you can say there is a change in rules. But based upon the contingency, if the number of persons to be called for interview are increased or decreased, would that amount to change in the rules?"
Continuing, the bench observed, "Some discretion is given to the employer. The objective is there. The only question is if the mechanism adopted would stand the scrutiny. Say, for example, as regards qualification, we say that somebody who is 21 above is eligible, and then you make it 25. Or you say degree holder and then make it double degree. That would be changing the rule after the game has started. But when it relates to interview, which connects to a contingency, would that amount to a change in the rule or not? For example, the eligibility condition is law graduate. Now they want to impose that law graduates with 50% marks can apply. This is change of rule after game has begun and you cannot impose this rule".
The bench proceeded to remark, "When it comes to selecting the judges of the district judiciary, obviously interview plays a much bigger role. You need to test the person based upon his knowledge. What knowledge he acquired by reading the book is different. What is the practical knowledge that he has is different. Therefore, interview assumes much more significance. We need judicial officers, we don't need somebody who will just go through the books".
An advocate appearing for translators/interpreters in a connected matter urged that one day before the declaration of the result, the rules were changed by the Chief Justice. Justice Banerjee stated, "We have to look at the principle. Interpreters interpret on the spot. They have to have a very strong command over the language, both the languages. Little bit of misinterpretation can lead to disasters".
Justice Banerjee remarked, "In the Calcutta High Court, I was told by the then Chief Justice, who was also elevated to the Supreme Court, that you are not giving any marks. I just went through a couple of answer scripts, I put them on the table and said atleast the orders should be intelligible. The orders should be understood. If this is the standard, how can I give them pass marks. There are many practical problems which have to be sorted out on the spot to maintain the standards...What is the purpose for which selection is to be made? For a judicial officer, if he is in a position to express himself properly, then that is set. As long as his English is intelligible and correct, if English is the language in which he has to write his judgments. But when you are selecting an interpreter..."
Senior Advocate Meenakshi Arora, for the Rajasthan High Court, submitted, "Your Lordships have held that you have a right for consideration but not a right to selection. And if a change takes place, then it is seen if the change is arbitrary. If it is arbitrary, the court will strike it down. But given that in a given case, there may be a requirement to have that, then the court will have to decide whether that principle of a right to being in a zone of consideration but not a right to selection, will that be an applicable principle. And then connect it with the Arbitrariness test. Whether, if you have to make a change and the change is not a change in the vital criteria of a selection, but a change of fixing of minimum marks, but not change in qualification, will that amount to change in the rule of the game? If the High Court did not fix the minimum and took the exam, they had to fill the 13 vacancies from the people who were found suitable? They would have to be selected even if they had got 13 marks? Assuming there is some change in a given case, but the change is not arbitrary and it is being necessitated by something, would that be required to be struck down in every case? I will buttress this argument. Your Lordships have observed that where there are changes for a more rigorous scrutiny, it is not arbitrary. It is for a higher quality candidate".
Advocate P. V. Dinesh, for the candidates to the post of district judge, "The learned Senior Counsel is giving the impression that we are against having rigorous scrutiny. We are also of the view that there should be a rigorous scrutiny. The question is whether there is a procedure which has been laid down by the rule and whether the High Court can act contrary to a rule or not. That is what happened in the Kerala case".
Senior Advocate V Chitambaresh and Advocate Ragenth Basant appeared for some of the respondents.
At this, the bench observed, "There are different levels of test at different stages. For example, if the rule is 45%, the High Court can make it 55%. Suppose the rule says the minimum marks should be 20%, the rule-making authority, the competent authority therefore can say why not more than 20%. Assuming, in a case, the rule says that the marks may not be more than 45%, the authority can prescribe more than 45%"
The bench then asked the advocates to prepare a small note with regard to the crux of their cases- what is the criteria, selection criteria, administrative criteria, the advertisement, what was the recruitment, what was the rule, what is the nature of the change. "Unless we understand the crux pertaining to these recruitment processes, it will become very difficult for us to hold at what stage can you change the rule, to what extent you can change the rule", added the bench.
The issue was referred to the Constitution Bench by a 3-judge bench in the case 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 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.
"In our opinion, application of the principle as laid down in Manjusree case (supra) without any further scrutiny would not be in the larger public interest or the goal of establishing an efficient administrative machinery", the bench observed in Tej Prakash while referring the matter to 5-judge bench.
Salam Samarjeet Singh v. High Court of Manipur At Imphal and Anr (2016) 10 SCC 484 also dealt with almost a similar issue and has since been posted along with Tej Prakash (supra) by order dated 10.08.2017. The matter Sivanandan C.T. & Ors. v. High Court of Kerala & Ors. [WRIT PETITION (CIVIL) NO. 229 OF 2017] raising a similar point has also been referred to Constitution Bench.
Notably, all these cases concerned with selection process for appointment of District Judges.
