Abhimeet Sinha & Ors. v. Issue for Consideration

AC Thalwal v. High Court of Himachal Pradesh [2000] Supp. 2 SCR 428 : (2000) 7 SCC 1 – held inapplicable. N. Devasahayam v. State of Madras, AIR (1958) Mad 53 – disapproved. Raj Kumar v. Shakti Raj [1997] 1 SCR 1159 : (1997) 9 SCC 527; Basheshar Nath v. Commr. of Income-tax, Delhi [1959] Supp. 1 SCR 528 : AIR (1959) SC 149; Olga Tellis v. Bombay Municipal Corporation [1985] Supp. 2 SCR 51 : AIR (1986) SC 180; Nar Singh Pal v. Union of India and others [2000] 2 SCR 752 : (2000) 3 SCC 588; Madan Lal v. State of J&K [1995] 1 SCR 908 : (1995) 3 SCC 486; Dhananjay Malik v. State of Uttaranchal [2008] 3 SCR 1035 : (2008) 4 SCC 171; Ramesh Chandra Shah v. Anil Joshi [2013] 5 SCR 687 : (2013) 11 SCC 309; Anupal Singh v. State of Uttar Pradesh [2019] 12 SCR 1071 : (2020) 2 SCC 173; Krishna Rai v. Banaras Hindu University [2022] 7 SCR 1104 : (2022) 8 SCC 713; Daryao v. State of UP [1962] 1 SCR 574 : AIR (1961) SC 1457; Inderjit Singh Sodhi v.

Chairman, Punjab State Electricity Board [2020] 11 SCR 966 : (2021) 1 SCC 198; All India Judges Association v. Union of India [1991] Supp. 2 SCR 206 : (1992) 1 SCC 119; All India Judges Association v. Union of India [1993] Supp. 1 SCR 749 : (1993) 4 SCC 288; Pradeep Kumar Rai v. Dinesh Kumar Pandey [2015] 6 SCR 825 : (2015) 11 SCC 493; Dr. Kavita Kamboj v. High Court of Punjab and Haryana and Others [2024] 2 SCR 1136 : 2024 SCC OnLine SC 254; Syed T.A. Digital Supreme Court Reports [2024] 6 S.C.R. 537 Naqshbandi v. State of J&K [2003] Supp. 1 SCR 114 : (2003) 9 SCC 592; Rakhi Ray v. High Court of Delhi [2010] 2 SCR 239 : (2010) 2 SCC 637; Mahinder Kumar v. High Court of Madhya Pradesh [2013] 13 SCR 884 : (2013) 11 SCC 87; Sasidhar Reddy v. State of AP [2013] 12 SCR 985 : (2014) 2 SCC 158; Salam Samarjeet Singh v. High Court of Manipur at Imphal [2016] 9 SCR 771 : (2016) 10 SCC 484; Shayara Bano v. Union of India [2017] 9 SCR 797 : (2017) 9 SCC 1; Joseph Shine v.

Union of India [2018] 11 SCR 765 : (2019) 3 SCC 39; Lok Prahari v. State of UP 2016 (4) SCR 1026 : (2016) 8 SCC 389; E.P. Royappa v. State of T.N [1974] 2 SCR 348 : (1974) 4 SCC 3; Ajay Hasia v. Khalid Mujib Sehravardi [1981] 2 SCR 79 : (1981) 1 SCC 722; Association for Democratic Reforms v. Union of India [2024] 2 SCR 420 : 2024 INSC 113; Lila Dhar v. State of Rajasthan [1982] 1 SCR 320 : (1981) 4 SCC 159; KH Siraj v. High Court of Kerela [2006] Supp. 2 SCR 790 : (2006) 6 SCC 395; State of UP v. Rafiquiddin [1988] 1 SCR 794 : (1987) Supp SCC 410; Taniya Malik v. Registrar General of the High Court of Delhi [2018] 10 SCR 348 : (2018) 14 SCC 129; Pranav Verma v. The Registrar General of High Court [2019] 15 SCR 43 : (2020) 15 SCC 377; B.K. Pavitra v. Union of India [2017] 1 SCR 631 : (2019) 16 SCC 129; Manish Kumar Shahi v. State of Bihar (2010) 12 SCC 576; Ashok Kumar Yadav v. State of Haryana [1985] Supp.

1 SCR 657 : (1985) 4 SCC 417; Inderpreet Singh Kahlon v. State of Punjab [2006] Supp. 1 SCR 772 : (2006) 11 SCC 356; Sanjay Singh v. UP Public Service Commission [2007] SCR 1 235 : (2007) 3 SCC 720; State of Bihar v. Bal Mukund Sah [2000] 2 SCR 299 : (2000) 4 SCC 640; State of U.P. v. Manbodhan Lal Srivastava [1958] 1 SCR 533 : AIR (1957) SC 912; Rajendra Singh Verma v. Lt. Governor (NCT of Delhi) [2011] 12 SCR 496 : (2011) 10 SCC 1; Supreme Court Advocateson-Record Association v. Union of India [1993] Supp. 2 SCR 659 : (1993) 4 SCC 441; Hari Dutt Kainthla v. State of Himachal Pradesh [1980] 3 SCR 364 : (1980) 3 SCC 189; Goa Judicial Officer’s Association v. State of Goa (1997) 4 BOM CR 372; Malik Mazhar v. U.P Public Service Commission [2006] 3 SCR 689 : (2006) 9 SCC 507 – referred to. Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors. 538 [2024] 6 S.C.R. Books and Periodicals Cited Michael J Sandel, The Tyranny of Merit: What’s become of the Common Good?

(Allen Lane,2020) – referred to. Websites Diksha Sanyal and Shriyam Gupta, “Discretion and Delay: Challenges in Becoming a District and Civil Judge” (December 2018) <https://vidhilegalpolicy.in/ research/2019-1-7-discretionand-delaychallenges-of- becoming-a-district-and-civil-judge/> accessed 3rd May, 2024 – referred to. List of Acts Constitution of India; Bihar Superior Judicial Service Rules, 1951; Bihar Superior Judicial (Amendment) Rules 2013; Gujarat State Judicial Service Rules, 2005; Gujarat Judicial Services Recruitment Rules,1961; Gujarat State Judicial Service (Amendment) Rules, 2011; Gujarat State Judicial Service (Amendment Rule, 2014); Gujarat Public Service Commission (Exemption from Consultation) Regulations,1960. List of Keywords Recruitment; Selection of judicial officers; District Judge (Entry Level) by direct recruitment from Bar; Post of Civil Judge; Minimum qualifying marks in the viva voce test; District Judiciary in the States of Bihar and Gujarat; All India Judges (2002) case; Recommendations of the Shetty Commission; Moderation of marks and corrective steps; Non-consultation with the Public Service Commission; Minimun marks for interview; Inconsistency between the Shetty Commission recommendations and the Recruitment Rules; Statutory Rules, supplemented to fill in gaps; Recruitment process; Uniformity in service conditions of judicial officers; Viva voce test as part of selection criteria for appointment; Legitimate expectation; Public Service Commission; Writ petition, maintainability; Principle of estoppel; Arbitrariness; Principle of res judicata.

Case Arising From CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.251 of 2016 (Under Article 32 of The Constitution of India) With Writ Petition (C) Nos. 663 and 735 of 2021, 1073 and 1146 of 2022 and 785 of 2023 Digital Supreme Court Reports [2024] 6 S.C.R. 539 Appearances for Parties Ajit Kumar Sinha, Rameshwar Singh Malik, Yatindra Singh, Sr. Advs., Deepak Goel, Mithilesh Kumar Jaiswal, Ms. Alka Goyal, Ms. Urvashi Sharma, Ms. Harshita Maheshwari, Kumar Kartikay, Mrs. Archana Preeti Gupta, Naveen Soni, Vipin Kumar Saxena, Jitesh Malik, B C Bhatt, Mrs. Leelawati Suman, N D Kaushik, Satish Kumar, Anil Kumar Sahu, Arvind Gupta, Prakash Gautam, Sujeet Kumar, Arunansh Bharti Goswami, Brahma Prakash, Pawanshree Agrawal, Sunil Kumar Jain, Ms. Rashika Swarup, Rishabh Sancheti, Ms. Padma Priya, Garvit Sharma, K. Paari Vendhan, Ms. Shraddha Deshmukh, Arjun Singh Bhati, Gurdeep Singh, Gautam Narayan, Ms.

Asmita Singh, Harshit Goel, Sujay Jain, K. Prasad, Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan, Alok Kumar, Kush Goel, Ms. Deepa Gorasia, Ms. Deepanwita Priyanka, Ms. Prerna Singh, Guntur Prabhakar, Guntur Pramod Kumar, Lalit Kumar, Devendra Singh, Mritunjay Kumar Sinha, Mrs. Vimal Sinha, Abhay Kumar, B S Rajesh Agrajit, Ms. Rajbala, Ms. Meetu Goswami, Shyamal Kumar, Krishnavani Sharma, Hitesh Kumar Sharma, Akhileshwar Jha, Sandeep Singh Dingra, Ms. Tanishka Grover, Amit Kumar Chawla, Verendra Mohan, Ms. Niharika Dewivedi, Ranjit Kumar Sharma, Amit Pawan, Ratnesh Kumar Shukla, Purushottam Sharma Tripathi, Vimal Dubey, Mukesh Kumar Singh, Ravi Chandra Prakash, Ms. Vani Vyas, Anup Kumar, M/S. Parekh & Co., Advs. for the appearing parties. Judgment / Order of the Supreme Court Hrishikesh Roy, J. Judgment

The common challenge in these six writ petitions filed under Article 32 of the Constitution of India is to the 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. The writ petitioners have approached this Court alleging a violation of their fundamental rights under Articles 14 and 16 contained in Part III of the Constitution of India. The specific consideration to be made in these matters is whether prescribing minimum qualifying marks for viva voce is in contravention of the law laid down by this Court Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors. 540 [2024] 6 S.C.R. in All India Judges Association and Others vs. Union of India and Others1 (for short “All India Judges (2002)) which accepted certain recommendations of Justice KJ Shetty Commission (for short “Shetty Commission”). The recruitment pertains to the selection of judicial officers of different ranks and respective selection cycles i.e. District Judge (Entry Level) by direct recruitment from the Bar (2015 Advertisement) for the State of Bihar and the post of Civil Judge (2019 and 2022 Advertisement) for the State of Gujarat. The Individual facts in the writ petitions may differ but the legal arguments broadly overlap. Wherever necessary, the individual facts and legal arguments will be dealt with separately. I. FACTS

The writ petition i.e. WP(C) No.251 of 2016 (considered here as the lead case), relates to the recruitment of District Judge (Entry Level) direct from Bar Examination (2015), in the State of Bihar. The recruitment process is governed by the Bihar Superior Judicial Service Rules, 1951 (for short “Bihar Rules, 1951”) as amended, from time to time. The prayer in the writ petition is to strike down Clause 11 of Appendix “C” of Bihar Superior Judicial (Amendment) Rules 2013 which is projected to be contrary to the recommendation of the Shetty Commission, as accepted by this Court in All India Judges (2002) in paragraphs 37 and 38. The second prayer in the writ petition is to set aside the selection for Bihar Superior Judicial Service, under the Advertisement No. 1/2015 as published vide notice dated 08.04.2016.

The connected matters i.e. WP(C) No.663/2021, WP(C) No.735/2021, WP(C) No.1073/2022, WP(C) No.1146/2022 and WP(C) No.785/2023 relate to the recruitment to the post of Civil Judge in Gujarat. The writ petitioners therein challenged the vires of the amended Rule 8(3) of the Gujarat State Judicial Service Rules, 2005 (for short “Gujarat Rules, 2005”), which was amended by notification dated 23.6.2011 as well as the corresponding clauses of the advertisement of the respective recruitment years. The ancillary prayer is to prepare a fresh select list based on the aggregate marks of written examination and interview, irrespective of the cut-off marks prescribed. 1 [2002] 2 SCR 712 : (2002) 4 SCC 247 Digital Supreme Court Reports [2024] 6 S.C.R. 541 A) Bihar Selection Process (2015)

The main writ petition is filed by 46 unsuccessful candidates who participated in the District Judges (Direct from Bar) Examination in 2015. The Bihar Rules,1951 came into force on 31.7.1951. The amendment to the Bihar Rules, 1951 was brought by a notification dated 3.4.2013, which, inter alia, provided for a screening test, a written main test, and also an interview for selection to the Bihar Superior Judicial Service. The total marks in the main written examination and the interview were 250 and 50 marks respectively. To qualify, candidates had to secure a minimum of 150 marks out of 250 marks (60%) in the main written examination and at least 10 out of the total 50 marks (20%), in the viva voce segment.

4.1. Following the further amendment on 3.12.2014 of the Bihar Rules, 1951, a proviso was added to clause 10 of Appendix C, granting power to the High Court to relax the qualifying marks in aggregate. Clauses 10,11 and 12 of the appendix C of Bihar Rules, 1951 provided as follows: - “10. A candidate will qualify for interview only if he secures minimum 45% marks in each paper and 55% marks in aggregate in the written test. Provided that in case the number of qualified candidates are not adequate, the High Court may, in the interest of judiciary, relax the qualifying marks in aggregate as may be required but this relaxation will not be below 50% in aggregate.

The candidates must secure at least 10 marks out of 50 marks in the interview.

The candidate must pass both the written test and interview before he is considered for appointment.”

4.2. With the above prescription of marks, the advertisement No. 1/2015 was issued in January 2015 by the Patna High Court to fill up 99 vacancies in the Bihar Superior Judicial Service. The advertisement provided in clauses 6(d) and (e) that the candidates will have to secure at least 10 out of 50 marks, in the interview segment.

4.3. Responding to the above advertisement in January 2015, around 6771 candidates appeared in the preliminary Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors. 542 [2024] 6 S.C.R. examination held on 22.03.2015. Those securing 176 marks or more in the screening test were cleared to participate in the main examination. Some unsuccessful candidates had filed writ petitions before the High Court alleging discrepancies in the framing of questions and revised model answers. Eventually, on the High Court’s interim order, those with a reduced score of 173 or more marks in the screening test were also “provisionally” allowed to write the main examination. The main written test was held on 12.7.2015 where around 1000 candidates (qualifying in the preliminary examination) appeared.

4.4. However, only 3 candidates were found to have obtained the qualifying marks i.e. above 55 % in the written examination. Accordingly, the five Judges of the Selection and Appointment Committee of the Patna High Court proposed moderation of marks in their meeting dated 8.1.2016. This led to adding of 4% marks in paper 1 and 6% marks in paper 2 in the respective scores of the individual candidates.

4.5. Despite the above moderation exercise, very few candidates could secure the notified 55% marks in aggregate. To address the issue, the Selection and Appointment Committee permitted a relaxation of 5% in the aggregate in the meeting held on 13.1.2016 by exercising options under the proviso to Clause 10 of Appendix – ‘C’ of the Bihar Rules 1951. The Full Court endorsed the relaxation of aggregate marks at 50% in the written test. With this, 81 candidates who had scored 50% in the written test qualified for the interview, and their results were declared on 22.1.2016.

4.6. In the meantime, the Patna High Court on 8.1.2016 dismissed the Writ Petition (CWJC No.11731/2015) of candidates who were earlier allowed by way of an ad-interim order, to appear in the main written exam with the declaration that candidates who had secured less than 176 marks in the screening test, are ineligible to take part in the main examination. Accordingly, 5 such candidates who scored less than 176 marks were disqualified on 1.2.2016. During the verification process, 3 other shortlisted candidates were found to be not practicing as lawyers and were thus found ineligible. Finally, 69 candidates were cleared for the interview which was conducted in February Digital Supreme Court Reports [2024] 6 S.C.R. 543 2016, by a Committee of 5 Judges of the High Court. Following the viva voce test, after computing the average of the marks awarded by the individual members of the Board, it was found that only 9 candidates had secured the minimum 10 marks out of 50, in the interview segment. The Full Court of the Patna High Court in their meeting held on 5.4.2016 then approved the appointment of these 9 candidates and they were appointed on 17.5.2016.

4.7. Challenging the selection process in Bihar, 46 candidates who did not qualify for not securing the minimum 10 marks in the interview, moved this Court. As noted earlier, the validity of Clause 11 of Appendix – C of the Bihar Rules 1951 (amended on 3.4.2013) is challenged in this writ petition. Notice was issued in the Writ Petition on 2.5.2016 by this Court.

4.8. When the reply was being prepared by the Patna High Court to respond to the writ petition, certain discrepancies were noticed during decoding, tabulation, and collation of marks in the main examination and the Registrar General of the High Court on 1.6.2016 apprised the Selection and Appointment Committee, about the errors. Then the Chairperson of the Committee in consultation with the Acting Chief Justice of the Patna High Court ordered for fresh tabulation. Following detailed verification of the records, it was found that 3 more candidates had obtained the qualifying marks in the written examination and as such were eligible to appear in the interview segment. It was simultaneously found that 4 candidates earlier shown to have qualified, had not actually obtained the qualifying marks. Following the resultant course corrections, 3 more candidates were allowed to participate in the interview and a corrigendum was issued for the 4 candidates, who were wrongly shown to have been qualified. Then the interview of the 3 candidates was held on 19.7.2016 but none of them secured the minimum 10 marks prescribed in the interview segment. Two serving judicial officers had applied under the 25% quota meant for Bar members and under a judicial order passed by the High Court on 9.8.2016, both judicial officers were permitted to participate in the selection process, without requiring them to resign from their job. One of them had not secured the required minimum marks for appearing in the interview segment and accordingly, Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors. 544 [2024] 6 S.C.R. only one person (Sunil Kumar Singh) was called for the interview on 31.8.2016. But since the concerned candidate failed to secure the minimum 10 marks in the interview, he was also not selected. B) Developments Post-2015 Selection in Bihar

In August 2016, the Patna High Court issued another advertisement for filling up posts for District Judge (Entry Level), for 98 vacancies (including 90 unfilled vacancies of 2015 examination). In the meantime, the proposal was made to amend the Bihar Rules 1951 and delete the cut-off requirement of minimum 10 marks, for qualifying in the interview. The August 2016 advertisement did not provide for a minimum qualifying mark in the interview segment. The appropriate in-tune amendment of the Rules was approved by the Full Court on 22.6.2016. Thereafter, the Bihar Rules 1951 was again amended on 16.2.2017 and Clauses 10,11 and 12 of Appendix-C of the Bihar Rules 1951 were substituted as follows: - “10. The ratio of marks of theory papers and viva-voce will be 80% and 20%.

11. A candidate will be called for viva-voce only if he secures at least 45% in each theory paper.

12. A candidate will qualify for appointment if the candidate secures at least 45% marks in each theory paper and 50% in aggregate in written test (theory papers) and viva-voce, taken together.”

5.1. Following the aforesaid amendment, the 2016 recruitment process was conducted and 98 selected candidates were appointed in March 2018, against the advertised vacancies.

5.2. Further examinations were held under the aforenoted amended Rules through the advertisement in the year 2019 for 16 vacancies against which, 12 candidates were appointed. In the next examination conducted in 2020, 16 more candidates were selected and appointed.

5.3. After the above recruitment process in the years 2016, 2019 and 2020 respectively, on 6.1.2020 the Bihar Rules 1951 were amended again by which Clause 12 of Appendix-C was substituted. The amended Clause 12 reads as under:- Digital Supreme Court Reports [2024] 6 S.C.R. 545

12. A candidate will qualify for appointment if the candidate secures at least 45% marks in each theory paper, 30% marks in viva-voce/interview and 50% marks in aggregate in written test (theory papers) and viva-voce taken together.

5.4. With the above amendment carried out on 6.1.2020, a candidate aspiring for selection in the Bihar Superior Judicial Service is required to score 30% marks in the interview and 50% in the aggregate of written test and viva-voce test taken together, to qualify for recruitment. C) Gujarat Selection Process

For the batch of five writ petitions relating to the selection process in Gujarat, the relevant facts are taken from the WP(C) 663/2021. The salient facts on which the challenge is raised, are substantially similar in these cases. The Gujarat Rules, 2005, substituted the erstwhile Gujarat Judicial Services Recruitment Rules,1961. The Gujarat Rules,2005 came to be amended firstly by the Gujarat State Judicial Service (Amendment) Rules, 2011 dated 23.6.2011 and secondly by the Gujarat State Judicial Service(Amendment Rule,2014) dated 9.9.2014. As per the amendments, Rule 8 provided for competitive examination for recruitment to the respective cadres of District Judge and Civil Judge. The following was the prescription for the competitive examination:

8. Competitive examination:- (1) the competitive examination for direct recruitment to the cadre of District Judge or Civil Judges shall consist of:- (i) a written examination of not less than two hours of duration with 200 maximum marks; and (ii) viva voce test of maximum 50 marks. (2) the candidates who obtain fifty percent (50%) or more marks in the competitive examination conducted for direct recruitment to the cadre of District Judge or Civil Judge, shall be eligible for being called for Viva-voce; Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors. 546 [2024] 6 S.C.R. Provided that the candidates belonging to Schedule Castes and Scheduled Tribes who obtain forty five percent (45%) or above marks, in the written examination, conducted for direct recruitment to the cadre of Civil Judges, shall be eligible for being called for Viva-Voce. (3) the minimum qualifying marks in the Viva-voce conducted for direct recruitment to the cadre of District Judge and Civil Judge, shall be forty percent (40%) of marks. (4) merit list shall be prepared on the basis of total marks obtained in the written examination and Viva-Voce Test (interview). (5) the object of the Viva-Voce Test (interview) is to assess the suitability of the candidate for the cadre by judging the mental alertness, knowledge of law, clear and logical exposition, balance of judgment, skills, attitude, ethics, power of assimilation, power of communication, character and intellectual depth and the like, of the candidate. (6) all necessary procedure not provided for in these rules of recruitment shall be decided by the High Court.

6.1. With the Rules amended as above, an advertisement was issued on 26.8.2019, for recruitment of Civil Judges in Gujarat. The scheme of examination and syllabus was notified for the preliminary examination, main written examination, and the viva-voce test in the advertisement. Under Clause 5 (II) (B), it was specified that the viva-voce test shall be of 50 marks. Under sub-Clause (ii) of Clause 5 (II) (B) the object of the Viva-voce test was indicated as under:

(II) (B) (i) **** **** (ii) The object of the Viva-voce Test is to assess the suitability of the Candidate for the cadre by judging the mental alertness, knowledge of law, clear and logical exposition, balance of judgment, skills, attitude, ethics, power of assimilation, power Digital Supreme Court Reports [2024] 6 S.C.R. 547 of communication, character and intellectual depth and the like, of the Candidate.

6.2. It was also specified in the advertisement under sub-Clause (iii) of Clause 5 (II) (B) that for being eligible to be included in the select list, the candidate must obtain a minimum of 40% marks in the viva-voce test.

6.3. On 8.9.2019, Kritika Bodha (WP(C) 663/2021), one of the candidates, submitted her application for selection to the post of Civil Judge. The results of the preliminary exam were declared on 18.12.2019. The main written examination was conducted on 19.1.2020 and the results thereof were published on 24.7.2020, declaring 132 candidates as successful for the interview round. The interview was conducted on 7.3.2021. The last candidate in the general category had 124 marks and the writ petitioner (because of the below 40% viva voce marks), despite getting 135.33 marks, was not selected. The prayer in all five writ petitions is to quash Rule 8(4) of Gujarat Rules,2005 (as amended in 2011) specifying 40% qualifying marks for viva voce. The related prayers are to quash the selection list and conduct fresh interviews. II. SUBMISSIONS

We have heard learned Senior Counsel, Mr. Ajit Kumar Sinha, Mr. Yatinder Singh, Mr. Rameshwar Singh Malik, and learned counsel, Ms. Shraddha Deshmukh, Mr. Pawanshree Agrawal and Mr. Rishabh Sancheti for the writ petitioners. Learned counsel, Mr. Gautam Narayan, and Mr. Purvish Jitendra Malkan, represented High Courts of Patna and Gujarat respectively.

The fundamental challenge in these cases is the prescription of the minimum cut-off in the viva voce segment i.e. 20 per cent for the recruitment by the Patna High Court and 40 per cent for the recruitment under the Gujarat High Court respectively.

The learned counsel on behalf of the writ petitioners contend that the selection process is vitiated as the same is in contravention of the law laid down in All India Judges (2002) where a three Judges Bench after deliberating on the report dated 11.11.1999 submitted by Shetty Commission, inter alia, in the matter of direct recruitment of judicial officers, opined that subject to various modifications in Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors. 548 [2024] 6 S.C.R. the judgment, all other recommendations of the Commission are accepted. As because Shetty Commission while suggesting the procedure for selection of judicial officers had specifically indicated that the interview segment shall carry 50 marks without any minimum cut-off marks, the prescription of minimum marks in the viva-voce test is contended to be arbitrary and unreasonable.

According to the learned counsel, the writ petitioners have better aggregate score (written and viva-voce combined), but are deprived of selection only because they failed to secure the qualifying marks in the interview. It is additionally argued that the interview marks are arbitrarily awarded and that is why the Shetty Commission recommended doing away with the cut-off of marks, in the viva-voce segment.

11. Mr. Ajit Kumar Sinha, learned senior counsel appearing in the lead writ petition, highlights the discrepancies in the Bihar selection process. Commenting on the meandering nature of the selection process under the Patna High Court and the decision taken for the moderation of marks and granting further relaxation of 5% in aggregate marks in the written examination, Mr. Sinha argued that moderation of marks should have been considered for the interview segment, as well for facilitating selection of those who scored high marks in the written examination but failed to qualify only for securing the below cut off marks in the interview segment. The learned counsel questions the fairness of the process which needed repeated course correction such as resorting to moderation and the relaxation of aggregate marks in the written test segment, as is clearly admitted in the additional affidavit of the Patna High Court. It is therefore argued that the Court should not only pass appropriate order on the faulty selection process but should also allow appointment on the basis of the aggregate score (written+viva) basis, without enforcing the cut-off marks bar, in the viva segment.

12. According to the petitioner’s counsel, even after the declaration of the final result on 8.4.2016, the Selection and Appointment Committee, continued to act till September, 2016, by issuing corrigendum, publishing fresh result of the written examination, conducting interviews for a few candidates and publishing the ultimate result. It is then argued by Mr. Sinha that if the Patna High Court wanted to consider candidates from a larger pool, because of the large number Digital Supreme Court Reports [2024] 6 S.C.R. 549 of vacancies, the relaxation of qualifying marks in the interview segment should have been a natural option.

The learned counsel Mr. Pawanshree Agarwal in his turn submits that the interview board members in the Gujarat Selection Board had access to the written marks of the candidates and therefore it was possible for the interview board to arbitrarily disqualify a meritorious candidate, by awarding them less than the qualifying marks. It is also submitted that the Rules were amended in 2011 only with the consultation of the High Court of Gujarat but not the Gujarat Public Service Commission. Therefore, such an amendment violates Article 234 of the Constitution of India.

In the same line, Mr. Rishabh Sancheti, learned counsel appearing in the WP(C) No.1146/2022 argued that denial of appointment because of below par score in the viva-voce segment, is discriminatory since such power can be selectively used for knocking out deserving candidates.

Projecting the contrary view, the learned counsel representing the High Court of Patna, Mr. Gautam Narayan argued that the High Court in order to make the best selection has the discretion to enforce a stricter criteria than what was prescribed by the Shetty Commission. According to Mr. Narayan, the procedure suggested by the Shetty Commission is only recommendatory. The recommendations of the Shetty Commission according to the learned counsel should be construed as guidelines only. It is submitted that the Patna High Court broadly adhered to the recruitment process for the District Judiciary and only made it slightly more stringent. The objective was to ensure the selection of meritorious judicial officers and ultimately maintain the standard of the District Judiciary. It is also submitted that the writ petitions at the instance of the unsuccessful candidates is not maintainable.

Mr. Purvish Malkan, learned counsel for the High Court of Gujarat while adopting the other submissions of Mr. Narayan, argues that the power is vested with the High Court to evolve its own procedure under Articles 233,234 and 235 of the Constitution. With this Mr. Malkan supports the amendment of the Rules by the High Court. The learned counsel refers to the High Court’s counter affidavit to contend that the Internal Board members did not have access to the marks in the written test while conducting the viva voce test. Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors. 550 [2024] 6 S.C.R.

The issues to be considered here are: III.ISSUES i) Whether the prescription of minimum marks for viva voce is in contravention of the law laid down by this Court in All India Judges(2002) which accepted certain recommendations of the Shetty Commission? ii) Whether the prescription of minimum marks for viva voce is violative of Articles 14 and 16 of the Constitution of India? iii) Whether the selection process in Bihar is vitiated given the moderation of marks and corrective steps, highlighted by the petitioners in the Bihar Selection process? iv) Whether non-consultation with the Public Service Commission as required under Article 234 of the Constitution for selection to the post of Civil Judge in the State of Gujarat would render the Gujarat Rules,2005(as amended in 2011) void? IV. MAINTAINABILITY

At the outset, it is apposite to address the issue of the maintainability of the writ petitions. It is argued by Mr. Gautam Narayan and Mr. Purvish Jitendra Malkan learned counsel 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. It is submitted that all candidates knew about the prescription of minimum marks for viva voce, well before the selection process commenced and the principle of estoppel will operate against the unsuccessful challengers. On the other hand, the learned counsel representing the writ petitioners argued that the principle of estoppel would have no application when there are glaring illegalities2 in the selection process. Further, estoppel is not applicable when the arbitrariness affects fundamental rights under Articles 14 and 16 of the Constitution of India3.

As argued by the learned counsel for the High Courts, the legal position is that after participating in the recruitment process, the 2 3 Raj Kumar v Shakti Raj (1997) 9 SCC 527