[2024] 2 S.C.R. 217 : 2024 INSC 97
Sushil Kumar Pandey & Ors.
v.
The High Court of Jharkhand & Anr.
(Writ Petition (Civil) No. 753 of 2023)
01 February 2024
[Aniruddha Bose and Sanjay Kumar, JJ.]
Issue for Consideration
High Court whether justified in altering the selection criteria after the
performance of individual candidates was assessed for selection
to the posts of District Judge Cadre in the State of Jharkhand.
Headnotes
Jharkhand Superior Judicial Service (Recruitment,
Appointment and Conditions of Service) Rules, 2001 – rr.14,
18, 21 – Jharkhand Superior Judicial Service (Recruitment,
Appointment and Conditions of Service) Regulation, 2017 –
Selection to the posts of District Judge Cadre in the State
of Jharkhand – Alteration in selection criteria after the
performance of individual candidates was assessed – Higher
aggregate marks prescribed in deviation from the statutory
rules – By way of Full Court Resolution, High Court introduced
securing 50 per cent marks in aggregate (combination of
marks obtained in main examination and viva-voce) as the
qualifying criteria for being recommended to the posts of
District Judge – Impermissibility:
Held: Under r.18, the task of setting cut-off marks was vested
in the High Court but this was to be done before the start of the
examination – Stipulations contained in r.21 for making the select
list were breached by the High Court administration in adopting
the impugned resolution – Plea that applying a higher aggregate
mark was not barred under the Rules or Regulations, not accepted
– The very expression “aggregate” means combination of two or
more processes and in the event the procedure for arriving at the
aggregate has been laid down in the applicable Rules, a separate
criteria cannot be carved out to enable change in the manner
of making the aggregate marks – If the High Court is permitted
to alter the selection criteria after the performance of individual
218 [2024] 2 S.C.R.
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candidates is assessed, that would constitute alteration of the laid
down Rules – Plea of the High Court administration that r.14 permits
them to alter the selection criteria after the selection process is
concluded and marks are declared is not proper exposition of the
said provision – r.14 empowers the High Court administration in
specific cases to reassess the suitability and eligibility of a candidate
in a special situation by calling for additional documents –High
Court administration cannot take aid of this Rule to take a blanket
decision for making departure from the selection criteria specified
in the 2001 Rules – High Court to make recommendation for
those candidates who were successful as per the merit or select
list, for filing up the subsisting notified vacancies without applying
the Full Court Resolution that requires each candidate to get 50
per cent aggregate marks – The part of the Full Court Resolution
of the Jharkhand High Court by which it was decided that only
those candidates who secured at least 50% marks in aggregate
shall be qualified for appointment to the post of District Judge is
quashed [Paras 20, 22-24]
Service jurisprudence – Change in the rule midway – Discussed.
Case Law Cited
Sivanandan C.T. & Ors. v. High Court of Kerala, [2023]
11 SCR 674 : (2023) INSC 709 – followed.
State of Haryana v. Subash Chander Marwaha & Ors.,
[1974] 1 SCR 165 : (1974) 3 SCC 220; Ram Sharan
Maurya and Ors. v. State of U.P. and Ors., [2020] 12
SCR 466 : (2021) 15 SCC 401 – distinguished.
K.Manjusree v. State of Andhra Pradesh and Anr., [2008]
2 SCR 1025 : (2008) 3 SCC 512; Hemani Malhotra
v. High Court of Delhi, [2008] 5 SCR 1066 : (2008) 7
SCC 11 – relied on.
Tej Prakash Pathak & Ors. v. Rajasthan High Court and
Others: (2013) 4 SCC 540 – referred to.
List of Acts
Jharkhand Superior Judicial Service (Recruitment, Appointment and
Conditions of Service) Rules, 2001; Jharkhand Superior Judicial
Service (Recruitment, Appointment and Conditions of Service)
Regulation, 2017; Constitution of India.
[2024] 2 S.C.R. 219
Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
List of Keywords
District Judge Cadre; Altering the selection criteria; Higher
aggregate mark; Qualifying criteria; Cut-off marks; Departure from
selection criteria.
Case Arising From
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.753 of 2023
(Under Article 32 of The Constitution of India)
With
Writ Petition (Civil) No.921 of 2023
Appearances for Parties
Arunabh Chowdhury, Sr. Adv./A.A.G., Vinay Navare, K
Karpagavinagagam, Dushyant Dave, Ms. Meenakshi Arora, Jayant
K. Sud, Jaideep Gupta, Sr. Advs., Mahesh Thakur, Ms. Neha Singh,
Mrs. Geetanjali Bedi, Ranvijay Singh Chandel, Shivamm Sharrma,
Ms. Shivani, Prithvi Pal, Sanjay Kumar Yadav, Manoj Jain, Ms.
Kiran Bhardwaj, C Aravind, K V Mathu Kumar, Ms. Geeta Verma,
Syed Imtiyaz, Usman Khan, Ms. Madhurima Sarangi, Naeem
Ilyas, Towseef Ahmad Dar, Danish Zubair Khan, Dr. Lokendra
Malik, Surya Nath Pandey, Durga Dutt, Rohit Priyadarshi, Upendra
Narayan Mishra, Satyendra Kumar Mishra, Ms. Rashi Verma,
Somesh Kumar Dubey, Kartik Jasra, Prannit Stefano, Shivam
Nagpal, Ms. Susmita Lal, Ms. Racheeta Chawla, Kamakhya
Srivastava, Rajiv Shanker Dvivedi, Ms. Tulika Mukherjee, Karma
Dorjee, Dechen W. Lachungpa, Beenu Sharma, Venkat Narayan,
Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
In these two writ petitions, we are to address the legality of the
selection process of District Judge Cadre in the State of Jharkhand
initiated in the year 2022. An advertisement bearing No. 01/2022
was published on 24th March, 2022, inviting applications from the
eligible candidates for the said posts. The vacancies specified in
the advertisement itself were twenty-two. Appointment procedure to
220 [2024] 2 S.C.R.
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the said posts is guided by the Jharkhand Superior Judicial Service
(Recruitment, Appointment and Conditions of Service) Rules, 2001
(‘the 2001 Rules’). In the year 2017, the Jharkhand Superior Judicial
Service (Recruitment, Appointment and Conditions of Service)
Regulation, 2017 (“the 2017 Regulation”) was framed in terms of
Rule 11 and Rule 30 of the 2001 Rules for this purpose.
2. On the basis of cut-off marks specified in the advertisement as also
in the 2001 Rules, select list of sixty-six persons was published,
applying the 1:3 ratio as there were twenty-two published vacancies.
3. The High Court on its administrative side, however, recommended
only thirteen candidates for appointment though the vacancies
declared were twenty-two. A resolution to that effect was taken in
a Full Court meeting held on 23.03.2023. We shall quote relevant
provisions from the 2001 Rules in subsequent paragraphs of this
judgment along with the relevant extracts from the advertisement.
In the advertisement, the relevant portions for adjudication of the
subject dispute were contained under the heading ‘Eligibility and
Conditions’. The following criteria for selection was specified therein:-
“Preliminary Entrance Test
(1) The Preliminary Entrance Test shall consist. Of:-
i. General English
ii. General Knowledge(including Current Affairs).
iii. C.P.C.
iv. Cr.P.C.
v. Evidence Act
vi. Law of Contract.
vii. IPC
(2) The Preliminary Entrance Test shall be of 100 in aggregate
(3) Duration of Preliminary Entrance Test shall be of two hours.
(4) There shall be negative marking of -1 mark (minus one)for
each wrong answer.
Main Examination
(1) The Main Examination shall consist of:-
[2024] 2 S.C.R. 221
Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
Paper -I
Part- I Language (English) 50 Marks
(Essay, Precis, Preposition and Comprehension etc,)
Part- II
(i) Procedural Law (Cr.P.C. & C.P.C)
(ii) Law of Evidence
(iii) Law of Limitation 50 Marks
Paper- II
Substantive Law 100 Marks
(i) Constitution of India
(ii) Indian Penal Code
(iii) Law of Contract
(iv) Sale of Goods Act
(v) Transfer of Property Act
(vi) Negotiable Instrument Act
(vii) Law relating to Motor Vehicle Accident Claim
(viii) Jurisprudence.
(ix) Santhal Pargana Tenancy Act
(x) Chhotanagpur Tenancy Act
(xi) Protection of Children from Sexual Offences Act (pocso)
(xii) Prevention Of Corruption Act (xiii) SC & ST Act
(xiv) Electricity Act
(xv) Narcotic Drugs and Psychotropic Substances Act (NDPS
Act)
(2) Examination shall be held in two sittings of three hours duration
for each paper.
Viva-Voce Test
(1) There shall be Viva-Voce Test of 40 marks.
(2) The marks obtained in Viva-Voce Test shall be added to
the marks obtained in Main Examination and the merit list
shall be prepared accordingly.
222 [2024] 2 S.C.R.
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(3) No candidate irrespective of the marks obtained by him
in the Main Examination, shall be eligible for selection
for appointment, if he obtains less than 20 marks out of
aggregate of 40 in the Viva-Voce. Test.
Note:- Every differently abled candidate will be allowed
“compensatory time” of 20 minutes for each hour of written
examination.”
4. So far as the selection process involved in these proceedings is
concerned, no preliminary entrance test was held, but that question
is not in controversy before us. The main examination comprising
of Paper-I and Paper-II carried a total of 200 marks. As per the
advertisement, the marks allocated for viva-voce test was 40 as would
appear from the preceding paragraph. A candidate irrespective of
the marks obtained by him in the main examination was required to
get at least 20 marks out of the aggregate 40 in the viva-voce test.
5. As per the 2001 Rules, the provisions relevant are Rules 14, 18, 21
and 22. These Rules read:-
“14. Notwithstanding anything contained in the foregoing
Rule, it shall be open to the High Court to require the
candidate at any stage of the selection process or
thereafter, to furnish any such additional proof or to produce
any document with respect to any matter relating to his
suitability and/or eligibility as the High Court may deem
necessary.
18. Before the start of the examination, the High Court
may fix the minimum qualifying marks in the Preliminary
Written Entrance Test and thereafter minimum qualifying
marks in the main examination. Based on such minimum
qualifying marks, the High Court may decide to call for
viva-voce such number of candidates, in order of merit
in written examination, depending upon the number of
vacancies available as it may appropriately decide:
Provided that in the case of candidates belonging to
scheduled castes and scheduled tribes and candidates
belonging to other reserved categories, such minimum
qualifying marks may not be higher than 45% of the total
aggregate marks :
[2024] 2 S.C.R. 223
Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
Provided also that in determining the suitability of a
particular candidate based on both the minimum qualifying
marks as well as in order of merit, the total marks obtained
in the examination as a whole and the marks obtained
in any individual paper, both shall also be taken into
consideration, depending upon any guidelines that the
High Court may issue in this behalf in the Regulations to
be framed for this purpose.
21. A candidate, irrespective of the marks obtained by him
in the Preliminary Written Entrance Examination and/or
the Main Written Examination shall not be qualified to be
appointed unless he obtains a minimum of 30% marks in
the viva-voce test. The marks obtained at the viva voce
test shall then be added to the marks obtained by the
candidate at the main written examination. The names of
the candidates will then be tabulated and arranged in order
of merit. If two or more candidates obtain equal marks in
the aggregate, the order shall be determined in accordance
with the marks secured at the main written examination.
If the marks secured at the main written examination of
the candidates also are found equal then the order shall
be decided in accordance with the marks obtained in the
Preliminary Written Entrance Test. From the list of candidates
so arranged in order of merit the High Court shall prepare a
select list and have it duly notified in a manner as prescribed
in the regulations. Such select list shall be valid for a period
of one year from the date of being notified.
22. From out of the aforesaid select list, depending upon the
number of vacancies available or those required to be filled
up, the High Court shall recommend to the Government
the names for appointment as Additional District Judge.”
6. There appears to be one inconsistency in relation to minimum marks
prescribed between the content of Rule 21 of the said Rules and
paragraph 12 of the 2017 Regulation. The said paragraph of the
Regulation stipulates:-
“(12) No candidate irrespective of the marks obtained by
him in the Main Examination, shall be eligible for selection
for appointment, if he obtains less than 20 marks out of
aggregate of 40 in the Viva-Voce Test.”
224 [2024] 2 S.C.R.
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7. We have already quoted Rule 21 of the 2001 Rules where minimum of
30% marks in the viva-voce has been prescribed as the qualification
criteria. But that question also does not arise in the present two writ
petitions as none of the parties before us has raised this point. We
also find it to be a safer course to go by the provisions of paragraph
12 of the 2017 Regulation, as the advertisement also prescribed
minimum 20 marks out of aggregate of 40 in the Viva Voce test.
8. Admitted position is that the 9 candidates who have been left out
from being recommended for appointment, had found place in the
select list in terms of Rule 21 of the 2001 Rules.
9. In Writ Petition (Civil) No. 753 of 2023, altogether seven petitioners
have joined in questioning the exclusion of the 9 candidates by
the Full Court Resolution. The said resolution introduces securing
50 per cent marks in aggregate (combination of marks obtained in
main examination and viva-voce) as the qualifying criteria for being
recommended to the said posts. This resolution against Agenda
No. 1 of the Full Court Meeting held on 23rd March, 2023 records:-
SL.No. AGENDA RESOLUTIONS
1. To consider the matter
o v e r r e c r u i t m e n t
process of District
J u d g e [ U / r 4 ( a )
directly from Bar] with
regard to Final Result
against advertisement
no.01/2022/Apptt.
Considered.
The Full Court resolves to approve
the final result list of 63 Candidates
who have appeared for viva voce
(list enclosed with this resolution and
marked at Flag “X”)
Further, Full Court observes that
candidates at Sl.No.7 & 8 have
got the same total marks, but on
careful consideration it transpires that
candidate at Sl.No.8 has got higher
marks in written examination. Hence
in view of Rule 21 of Jharkhand
Superior Judicial (Recruitment,
Appointment and Conditions of
Service) Rules, 2001, candidate at
Sl.No.8 is placed at higher place/
rank.
[2024] 2 S.C.R. 225
Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
Further after due deliberation,
keeping in view the responsibility that
will be vested upon the candidates
who qualify for appointment of
District Judges and to maintain the
high standard of Superior Judicial
Services, the Full Court resolves
that only those candidates who
have secured at least 50% marks
in aggregate, shall be qualified for
appointment to post of District Judge.
It is hereby resolved to recommend
the names of following 13 top
(merit wise) candidates to the
State Government for issuance of
necessary notification/s for their
appointment to the post of District
Judge after completing/undertaking
the investigation/enquiry relating to
the candidates credentials as per
Rule 23 & 24 of Jharkhand Superior
Judicial (Recruitment, Appointment
and Conditions of Service) Rules,
2001:
S.No. Roll No. Name
1 10369 NAMITA CHANDRA
2 10956 SHWETA DHINGRA
3 10343 PARAS KUMAR SINHA
4 10388 KUMAR SAKET
5 10519 SHIVNATH TRIPATHI
6 10218 BHUPESH KUMAR
7 11577 AISHA KHAN
8 10294 BHANU PRATAP SINGH
9 10592 NEETI KUMAR
10 10371 PRACHI MISHRA
11 10109 PAWAN KUMAR
226 [2024] 2 S.C.R.
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12 11061 RAJESH KUMAR BAGGA
13 10587 NARANJAN SINGH
Registrar General is directed to upload the names of above mentioned
13 successful candidates to the official website of this Court.
10. This Resolution has been disclosed in the reply to the Rejoinder
affidavit filed on behalf of the High Court of Jharkhand, affirmed by
Registrar General of that Court.
11. There are two impleadment applications registered as I.A. No.
173928 of 2023 taken out by ‘Purnendu Sharan’ and I.A. No. 10383
of 2024 taken out by ‘Ashutosh Kumar Pandey’, both of them being
aggrieved by the procedure adopted by the Full Court.
12. Another set of candidates have filed the second writ petition registered
as Writ Petition (Civil) No. 921 of 2023. In this writ petition, altogether
five candidates have sought substantially the same relief asked for
in the Writ Petition (Civil) No. 753 of 2023.
13. The petitioners have been represented before us by Mr. Dushyant
Dave, Mr. Vinay Navare and Mr. Jayant K. Sud, learned senior
counsel whereas the High Court of Jharkhand has been represented
by Mr. Jaideep Gupta, learned senior counsel. Mr. Rajiv Shanker
Dvivedi, learned Standing Counsel for the State of Jharkhand has
appeared for the State. State has taken a non-committal stand before
us. Counter affidavit has been filed by the State in which also no
definitive stand has been taken on the legality of the Resolution
in the Full Court meeting of the High Court. It has however been
submitted by the State that certain amendments need to be carried
out in Rule 21 of the 2001 Rules. That plea does not come within
the scope of the present proceedings.
14. The petitioners’ main case rests on two planks. First one is that the
decision of the Full Court on the administrative side goes contrary
to the Recruitment Rules, Regulations and the Terms contained in
the advertisement. The second plank of the submissions advanced
by the petitioners is that in any event, after the performance of each
of the candidate is known and the marks obtained by them in the
two forms of the examination are disclosed, it was impermissible
for the High Court Administration to introduce fresh cut-off marks.
On this point, the authority relied upon by Mr. Dave is a judgment
of a Constitution Bench comprising of five Hon’ble Judges of this
[2024] 2 S.C.R. 227
Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
Court in the case of Sivanandan C.T. & Ors. Vs. High Court of
Kerala [(2023) INSC 709)] decided on 12th July, 2023. This judgment
narrates the factual background of that case in paragraph ‘7’ thereof
and the ratio of this decision would emerge from paragraphs ‘52’ to
‘57’ of the said judgment. These passages from the judgment are
quoted below:-
“7. On 27 February 2017, after the viva-voce was
conducted, the Administrative Committee of the High
Court passed a resolution by which it decided to apply
the same minimum cut-off marks which were prescribed
for th e written examination as a qualifying criterion in the
viva-voce. In coming to this conclusion, the Administrative
Committee was of the view that since appointments
were being made to the Higher Judicial Service, it was
necessary to select candidates with a requisite personality
and knowledge which could be ensured by prescribing
a cut-off for the viva-voce in terms similar to the cut-off
which was prescribed for the written examination. On 6
March 2017, the Full Court of the High Court of Kerala
approved the resolution of the Administrative Committee.
The final merit list of the successful candidates was also
published on the same day.
x x x
52. The statutory rule coupled with the scheme of
examination and the 2015 examination notification would
have generated an expectation in the petitioners that
the merit list of selected candidates will be drawn on
the basis of the aggregate of total marks received in the
written examination and the viva voce. Moreover, the
petitioners would have expected no minimum cutoff 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, and
the 2015 examination notification issued by the High Court.
Thus, the High Court lawfully committed itself to preparing
a merit list of successful candidates on the basis of the
total marks obtained in the written examination and the
viva voce.
228 [2024] 2 S.C.R.
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ii. Whether the High Court has acted unlawfully in relation
to its commitment?
53. The Administrative Committee of the High Court
apprehended that a candidate who performed well in the
written examination, even though they fared badly in the
viva voce, would get selected to the post of District and
Sessions Judge. The Administrative Committee observed
that recruitment of such candidates would be a disservice to
the public at large because they possessed only “bookish”
knowledge and lacked practical wisdom. To avoid such a
situation, the Administrative Committee of the High Court
decided to apply a minimum cut-off to the viva voce
examination. The decision of the Administrative Committee
was approved by the Full Bench of the High Court.
54. The Constitution vests the High Courts with the authority
to select judicial officers in their jurisdictions. The High
Court, being a constitutional and public authority, has
to bear in the mind the principles of good administration
while performing its administrative duties. The principles
of good administration require that the public authorities
should act in a fair, consistent, and predictable manner.
55. The High Court submitted that frustration of the
petitioner’s substantive legitimate expectation was in larger
public interest – selecting suitable candidates with practical
wisdom for the post of District Judges. Indeed, it is in the
public interest that we have suitable candidates serving
in the Indian judiciary. However, the criteria for selecting
suitable candidates are laid down in the statutory rules. As
noted above, the High Court did amend the 1961 Rules
in 2017 to introduce a minimum cut-off mark for the viva
voce. The amended Rule 2(c) is extracted below:
“2. Method of appointment – (1) Appointment to the service
shall be made as follows:
[…]
(c) Twenty five percent of the posts in the service shall
be filled up by direct recruitment from the members of the
Bar. The recruitment shall be on the basis of a competitive
[2024] 2 S.C.R. 229
Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
examination consisting of a written examination and a viva
voce. […] Maximum marks for viva voce shall be 50. The
General and Other Backward Classes candidates shall
secure a minimum of 40% marks and Scheduled Caste/
Scheduled Tribe candidate shall secure a minimum of
35% marks for passing the viva voce. The merit list of the
selected candidates shall be prepared on the basis of the
aggregate marks secured by the candidate in the written
examination and viva voce.”
(emphasis supplied)
56. Under the unamended 1961 Rules, the High Court was
expected to draw up the merit list of selected candidates
based on the aggregate marks secured by the candidates
in the written examination and the viva voce, without any
requirement of a minimum cut-off for the viva voce. Thus,
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. It is also important to highlight that the requirement
of a minimum cutoff for the viva voce was introduced
after the viva voce was conducted. It is manifest that the
petitioners had no notice that such a requirement would
be introduced for the viva voce examination. We are of
the opinion that the decision of High Court is unfair to the
petitioners and amounts to an arbitrary exercise of power.
57. The High Court’s decision also fails to satisfy the test
of consistency and predictability as it contravenes the
established practice. The High Court did not impose the
requirement of a minimum cut-off for the viva voce for the
selections to the post of District and Sessions Judges for
2013 and 2014. Although the High Court’s justification,
when analyzed on its own terms, is compelling, it is not
grounded in legality. 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, we
hold that such a course of action is arbitrary and violative
of Article 14.”
230 [2024] 2 S.C.R.
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15. There is an earlier judgment of this Court comprising of three Hon’ble
Judges in the case of K. Manjusree -vs- State of Andhra Pradesh
and Anr. [(2008) 3 SCC 512] in which the change of recruitment
criteria mid-way through the selection process has been held to
be impermissible. We quote below paragraphs ‘27’ and ‘36’ of that
judgment from the said report:-
“27. But what could not have been done was the second
change, by introduction of the criterion of minimum marks
for the interview. The minimum marks for interview had
never been adopted by the Andhra Pradesh High Court
earlier for selection of District & Sessions Judges, (Grade
II). In regard to the present selection, the Administrative
Committee merely adopted the previous procedure in
vogue. The previous procedure as stated above was to
apply minimum marks only for written examination and not
for the oral examination. We have referred to the proper
interpretation of the earlier Resolutions dated 24.7.2001 and
21.2.2002 and held that what was adopted on 30.11.2004
was only minimum marks for written examination and not for
the interviews. Therefore, introduction of the requirement
of minimum marks for interview, after the entire selection
process (consisting of written examination and interview)
was completed, would amount to changing the rules of
the game after the game was played which is clearly
impermissible. We are fortified in this view by several
decisions of this Court. It is sufficient to refer to three of
them - P. K. Ramachandra Iyer v. Union of India1
, Umesh
Chandra Shukla v. Union of India2
, and Durgacharan Misra
v. State of Orissa3
.
x x x
36. The Full Court however, introduced a new requirement
as to minimum marks in the interview by an interpretative
process which is not warranted and which is at variance
with the interpretation adopted while implementing the
1 (1984) 2 SCC 141: 1984 SCC (L &S) 214
2 (1985) 3 SCC 721: 1985 SCC (L&S) 919
3 (1987) 4 SCC 646: 1988 SCC (L & S) 36: (1987) 5 ATC 148
[2024] 2 S.C.R. 231
Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
current selection process and the earlier selections. As
the Full Court approved the Resolution dated 30.11.2004
of the Administrative Committee and also decided to
retain the entire process of selection consisting of written
examination and interviews it could not have introduced
a new requirement of minimum marks in interviews,
which had the effect of eliminating candidates, who would
otherwise be eligible and suitable for selection. Therefore,
we hold that the action of Full Court in revising the merit list
by adopting a minimum percentage of marks for interviews
was impermissible.”
16. The same view has later been taken by a Coordinate Bench of this
Court in the case of Hemani Malhotra -vs- High Court of Delhi
[(2008) 7 SCC 11]. In a later decision, Tej Prakash Pathak & Ors.
-vs- Rajasthan High Court and Others [(2013) 4 SCC 540], a three
Judge Bench of this Court expressed a view which is different from
that taken in the case of K. Manjusree (supra) and referred the
matter to the Hon’ble the Chief Justice of India for being considered
by a larger Bench. There is no decision yet from a larger Bench and
until the principle laid down in the case of K. Manjusree (supra) is
overruled by a larger Bench, we shall continue to be guided by the
same as “no change in the rule midway” dictum has become an
integral part of the service jurisprudence.
17. The next point urged by Mr. Gupta is that the ratio of the three
judgments on which reliance has been placed by Mr. Dave would
not apply in the facts of the present case. His argument is that in
those three authorities, the marking in viva-voce was the subject
of dispute whereas in the present writ petitions, it is on aggregate
marking that the High Court administration has raised the bar. One
of the authorities on which Mr. Gupta has relied on is State of
Haryana -vs- Subash Chander Marwaha & Ors. [(1974) 3 SCC
220]. In paragraphs 7 and 12 of the said report, it has been held and
observed by a Bench of two Hon’ble Judges of this Court:-
“7. In the present case it appears that about 40 candidates
had passed the examination with the minimum score of
45%. Their names were published in the Government
Gazette as required by Rule 10(1) already referred to. It
is not disputed that the mere entry in this list of the name
232 [2024] 2 S.C.R.
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of candidate does not give him the right to be appointed
The advertisement that there are 15 vacancies to be
filled does not also give him a right to be appointed. It
may happen that the Government for financial or other
administrative reasons may not fill up any vacancies. In
such a case the candidates, even the first in the list, will
not have a right to be appointed. The list is merely to help
the State Government in making the appointments showing
which candidates have the minimum qualifications under
the Rules. The stage for selection for appointment comes
thereafter, and it is not disputed that under the Constitution
it is the State Government alone which can make the
appointments. The High Court does not come into the
picture for recommending any particular candidate. After
the State Government have taken a decision as to which
of the candidates in accordance with the list should be
appointed, the list of selected candidates for appointment
is forwarded to the High Court then will have to enter
such candidates on a Register maintained by it. When
vacancies are to be filled the High Court will send in the
names of the candidates in accordance with the select
list and in the order they have been placed in that list for
appointment in the vacancies. The High Court, therefore,
plays no part except to suggest to the Government who
in accordance with the select list is to be appointed and
in a particular vacancy. It appears that in the present case
the Public Service Commission had sent up the rolls of
the first 15 candidates because the Commission had been
informed that there are 15 vacancies. The High Court
also in its routine course had sent up the first 15 names
to the Government for appointment. Thereupon the Chief
Secretary to Government, Haryana wrote to the Registrar
of the High Court on May 4, 1971 as follows:
“I am directed to refer to Haryana Government endst
No. 1678-1 GS, II—71/3802, dated April 22, 1971, on
the subject noted above, and to say that after careful
consideration of the recommendations of the Punjab
and Haryana High Court for appointment of first fifteen
candidates to the Haryana Civil Service (Judicial Branch),
[2024] 2 S.C.R. 233
Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
the State Government have taken the view that it would be
appropriate that only the first seven candidates should be
appointed to the Haryana Civil Service (Judicial Branch)
and a notification has been issued accordingly. The
reason is that in the opinion of the State Government,
only those candidates who obtained 55% or more marks
in the Haryana Civil Service (Judicial Branch) Examination,
should be appointed as that will serve to maintain a
minimum standard in the appointments to the Service. It
may be mentioned that the last candidate appointed against
un-reserved vacancies out of the merit list prepared on
the basis of the Haryana Civil Service (Judicial Branch)
Examination held in May 1969, secured 55.67% marks.
The State Government have also received information
that the Punjab and Haryana High Court themselves
recommended to the Punjab Government that in respect
of P.C.S. (Judicial Branch) Examination held in 1970,
candidates securing 55% marks or more should be
appointed against un-reserved vacancies. Thus, the
decision taken by Haryana Government is in line with
the recommendations which the High Court made to the
Punjab Government regarding recruitment to the P.C.S.
(Judicial Branch) on the basis of the Examination held
in 1970, and a similar policy in both the cases would be
desirable for obvious reasons.”
12. It was, however, contended by Dr Singhvi on behalf
of the respondents that since Rule 8 of Part C makes
candidates who obtained 45% or more in the competitive
examination eligible for appointment, the State Government
had no right to introduce a new rule by which they can
restrict the appointments to only those who have scored not
less than 55%. It is contended that the State Government
have acted arbitrarily in fixing 55% as the minimum
for selection and this is contrary to the rule referred to
above. The argument has no force. Rule 8 is a step in the
preparation of a list of eligible candidates with minimum
qualifications who may be considered for appointment.
The list is prepared in order of merit. The one higher in
rank is deemed to be more meritorious than the one who
234 [2024] 2 S.C.R.
Digital Supreme Court Reports
is lower in rank. It could never be said that one who tops
the list is equal in merit to the one who is at the bottom of
the list. Except that they are all mentioned in one list, each
one of them stands on a separate level of competence
as compared with another. That is why Rule 10(ii), Part
C speaks of “selection for appointment”. Even as there is
no constraint on the State Government in respect of the
number of appointments to be made, there is no constraint
on the Government fixing a higher score of marks for the
purpose of selection. In a case where appointments are
made by selection from a number of eligible candidates
it is open to the Government with a view to maintain
high standards of competence to fix a score which is
much higher than the one required for more eligibility.
As shown in the letter of the Chief Secretary already
referred to, they fixed a minimum of 55% for selection as
they had done on a previous occasion. There is nothing
arbitrary in fixing the score of 55% for the purpose of
selection, because that was the view of the High Court
also previously intimated to the Punjab Government on
which the Haryana Government thought fit to act. That
the Punjab Government later on fixed a lower score is no
reason for the Haryana Government to change their mind.
This is essentially a matter of administrative policy and if
the Haryana State Government think that in the interest
of judicial competence persons securing less than 55%
of marks in the competitive examination should not be
selected for appointment, those who got less than 55%
have no right to claim that the selections be made of also
those candidates who obtained less than the minimum
fixed by the State Government. In our view the High Court
was in error in thinking that the State Government had
somehow contravened Rule 8 of Part C.”
18. Mr. Gupta has also cited the case of Ram Sharan Maurya and Ors.
Vs. State of U.P. and Ors. [(2021) 15 SCC 401]. It has been held
in this judgment:-
“72. In terms of Rule 2(1)(x) of the 1981 Rules, qualifying
marks of ATRE are such minimum marks as may be
determined “from time to time” by the Government.
[2024] 2 S.C.R. 235
Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
Clause (c) of Rule 14 of the 1981 Rules lays down
that a candidate must have “passed Assistant Teacher
Recruitment Examination conducted by the Government”.
Thus, one of the basic requirements for being considered
to be appointed as an Assistant Teacher under the 1981
Rules is passing of ATRE with such minimum marks as
may be determined by the Government. Unlike para 7 of
the Guidelines for ATRE 2018 which had spelt out that a
candidate must secure minimum of 45% or 40% marks
(for “General” and “Reserved” categories respectively) for
passing ATRE 2018, no such stipulation was available in
G.O. dated 1-12-2018 notifying ATRE 2019. Though, the
minimum qualifying marks were set out in the Guidelines
for ATRE 2018, it is not the requirement of the 1981 Rules
that such stipulation must be part of the instrument notifying
ATRE. By very nature of entrustment, the Government
is empowered to lay down minimum marks “from time
to time”. If this power is taken to be conditioned with
the requirement that the stipulation must be part of the
instrument notifying the examination, then there was no
such stipulation for ATRE 2019. Such reading of the rules
will lead to somewhat illogical consequences. On one hand,
the relevant Rule requires passing of ATRE while, on the
other hand, there would be no minimum qualifying marks
prescribed. A reasonable construction on the relevant
rules would therefore imply that the Government must
be said to be having power to lay down such minimum
qualifying marks not exactly alongside instrument notifying
the examination but at such other reasonable time as well.
In that case, the further question would be at what stage
can such minimum qualifying marks be determined and
whether by necessity such minimum qualifying marks must
be declared well before the examination.
73.K. Manjusree [K. Manjusree v. State of A.P., (2008) 3
SCC 512 : (2008) 1 SCC (L&S) 841] and Hemani Malhotra
[Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11
: (2008) 2 SCC (L&S) 203] were the cases which pertained
to selections undertaken to fill up posts in judicial service.
In these cases, no minimum qualifying marks in interview
236 [2024] 2 S.C.R.
Digital Supreme Court Reports
were required and the merit list was to be determined going
by the aggregate of marks secured by a candidate in the
written examination and the oral examination. By virtue
of stipulation of minimum qualifying marks for interview,
certain candidates, who otherwise, going by their aggregate
would have been in zone of selection, found themselves
to be disqualified. The stipulation of minimum qualifying
marks having come for the first time and after the selection
process was underway or through, this Court found such
exercise to be impermissible.
74. These were cases where, to begin with, there was no
stipulation of any minimum qualifying marks for interview.
On the other hand, in the present case, the requirement
in terms of Rule 2(1)(x) read with Rule 14 is that the
minimum qualifying marks as stipulated by the Government
must be obtained by a candidate to be considered eligible
for selection as Assistant Teacher. It was thus always
contemplated that there would be some minimum qualifying
marks. What was done by the Government by virtue of its
orders dated 7-1-2019 was to fix the quantum or number
of such minimum qualifying marks. Therefore, unlike the
cases covered by the decision of this Court in K. Manjusree
[K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008)
1 SCC (L&S) 841], where a candidate could reasonably
assume that there was no stipulation regarding minimum
qualifying marks for interview, and that the aggregate of
marks in written and oral examination must constitute
the basis on which merit would be determined, no such
situation was present in the instant case. The candidate
had to pass ATRE 2019 and he must be taken to have
known that there would be fixation of some minimum
qualifying marks for clearing ATRE 2019.
75. Therefore, there is fundamental distinction between
the principle laid down in K. Manjusree [K. Manjusree v.
State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S)
841] and followed in Hemani Malhotra [Hemani Malhotra
v. High Court of Delhi, (2008) 7 SCC 11 : (2008) 2 SCC
(L&S) 203] on one hand and the situation in the present
case on the other.
[2024] 2 S.C.R. 237
Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
76. We are then left with the question whether prescription
of such minimum qualifying marks by order dated 7-1-
2019 must be set aside merely because such prescription
was done after the examination was conducted. At this
juncture, it may be relevant to note that the basic prayer
made in the leading writ petition before the Single Judge
was to set aside the order dated 7-1-2019. What could
then entail as a consequence is that there would be no
minimum qualifying marks for ATRE 2019, which would run
counter to the mandate of Rule 2(1)(x) read with clause
(c) of Rule 14. It is precisely for this reason that what was
submitted was that the same norm as was available for
ATRE 2018 must be adopted for ATRE 2019. In order to
lend force to this submission, it was argued that Shiksha
Mitras who appeared in ATRE 2018 and ATRE 2019 formed
a homogeneous class and, therefore, the norm that was
available in ATRE 2018 must be applied. This argument,
on the basis of homogeneity, has already been dealt with
and rejected.
77. If the Government has the power to fix minimum
qualifying marks “from time to time”, there is nothing in
the Rules which can detract from the exercise of such
power even after the examination is over, provided the
exercise of such power is not actuated by any malice or
ill will and is in furtherance of the object of finding the
best available talent. In that respect, the instant matter
is fully covered by the decisions of this Court in MCD v.
Surender Singh [MCD v. Surender Singh, (2019) 8 SCC 67
: (2019) 2 SCC (L&S) 464] and Jharkhand Public Service
Commission v. Manoj Kumar Gupta [Jharkhand Public
Service Commission v. Manoj Kumar Gupta, (2019) 20
SCC 178] . In the first case, the power entrusted under
Clause 25 of the advertisement also provided similar
discretion to the Selection Board to fix minimum qualifying
marks for each category of vacancies. While construing
the exercise of such power, it was found by this Court
that it was done “to ensure the minimum standard of the
teachers that would be recruited”. Similarly, in Jharkhand
Public Service Commission [Jharkhand Public Service
238 [2024] 2 S.C.R.
Digital Supreme Court Reports
Commission v. Manoj Kumar Gupta, (2019) 20 SCC 178],
the exercise of power after the examination in Paper III
was over, was found to be correct and justified.
78. If the ultimate object is to select the best available
talent and there is a power to fix the minimum qualifying
marks, in keeping with the law laid down by this Court in
State of Haryana v. Subash Chander Marwaha [State of
Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220
: 1973 SCC (L&S) 488], State of U.P. v. Rafiquddin [State
of U.P. v. Rafiquddin, 1987 Supp SCC 401 : 1988 SCC
(L&S) 183], MCD v. Surender Singh [MCD v. Surender
Singh, (2019) 8 SCC 67 : (2019) 2 SCC (L&S) 464] and
Jharkhand Public Service Commission v. Manoj Kumar
Gupta [Jharkhand Public Service Commission v. Manoj
Kumar Gupta, (2019) 20 SCC 178], we do not find any
illegality or impropriety in fixation of cut-off at 65-60% vide
order dated 7-1-2019. The facts on record indicate that
even with this cut-off the number of qualified candidates
is more than twice the number of vacancies available. It
must be accepted that after considering the nature and
difficulty level of examination, the number of candidates
who appeared, the authorities concerned have the requisite
power to select a criteria which may enable getting the
best available teachers. Such endeavour will certainly be
consistent with the objectives under the RTE Act.
79. In the circumstances, we affirm the view taken by the
Division Bench of the High Court and conclude that in
the present case, the fixation of cut-off at 65-60%, even
after the examination was over, cannot be said to be
impermissible. In our considered view, the Government
was well within its rights to fix such cut-off.”
19. In these two writ petitions, we are not, however, only concerned with
the “midway change of the Rule” Principle. But on that count also,
the ratio of the decisions cited by Mr. Gupta are distinguishable. The
three Judge Bench in Tej Prakash Pathak (supra) had referred to
the judgment in the case of Subhas Chandra Marwaha (supra) to
express doubt over correctness of the judgment in the case of K.
Manjusree (supra). As we have already observed, the ratio of K.
[2024] 2 S.C.R. 239
Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
Manjusree (supra) still holds the field. In the case of Ram Sharan
Maurya (supra), the Rules guiding recruitment empowered the
Government to stipulate qualifying marks of the particular selection
process to be such minimum marks as may be determined from
time to time by the Government. In this decision, the judgment itself
takes note of the decisions of this Court in K. Manjusree (supra)
and Hemani Malhotra (supra) and finds that the course for selection
to the posts involved in that case was different from that which was
found to be impermissible in K. Manjusree (supra) and Hemani
Malhotra (supra).
20. We find from Rule 18 of the 2001 Rules, the task of setting cut-off
marks has been vested in the High Court but this has to be done
before the start of the examination. Thus, we are also dealing with
a situation in which the High Court administration is seeking to
deviate from the Rules guiding the selection process itself. We have
considered the High Court’s reasoning for such deviation, but such
departure from Statutory Rules is impermissible. We accept the
High Court administration’s argument that a candidate being on the
select list acquired no vested legal right for being appointed to the
post in question. But if precluding a candidate from appointment is
in violation of the recruitment rules without there being a finding on
such candidate’s unsuitability, such an action would fail the Article
14 test and shall be held to be arbitrary. The reason behind the Full
Court Resolution is that better candidates ought to be found. That
is different from a candidate excluded from the appointment process
being found to be unsuitable.
21. Stipulations contained in Rule 21 of the 2001 Rules for making the
select list were breached by the High Court administration in adopting
the impugned resolution. The ratio of the decision in the case of
Ram Sharan Maurya (supra) would not apply in the facts of this
case and we have already discussed why we hold so.
22. Mr. Gupta’s stand is that applying a higher aggregate mark is not
barred under the said Rules or Regulations. We are, however,
unable to accept this submission. The very expression “aggregate”
means combination of two or more processes and in the event the
procedure for arriving at the aggregate has been laid down in the
applicable Rules, a separate criteria cannot be carved out to enable
change in the manner of making the aggregate marks.
240 [2024] 2 S.C.R.
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23. So far as the ratio of the decision in the case of K. Manjusree
(supra) is concerned, that authority deals with change of the Rules
mid-way. In the case before us, in our opinion, if the High Court
is permitted to alter the selection criteria after the performance of
individual candidates is assessed, that would constitute alteration
of the laid down Rules. We refer to paragraphs Nos. 14 and 15 of
the judgment of the Constitution Bench in the case of Sivanandan
C.T. (supra), which lays down the principle of law on this point. We
reproduce below the said passages from this authority:-
“14. The decision of the High Court to prescribe a cut-off for
the viva-voce examination was taken by the Administrative
Committee on 27 February 2017 after the viva-voce was
conducted between 16 and 24 January 2017. The process
which has been adopted by the High Court suffers from
several infirmities. Firstly, the decision of the High Court
was contrary to Rule 2(c)(iii) which stipulated that the
merit list would be drawn up on the basis of the marks
obtained in the aggregate in the written examination and
the viva-voce; secondly, the scheme which was notified
by the High Court on 13 December 2012 clearly specified
that there would be no cut off marks in respect of the vivavoce; thirdly, the notification of the High Court dated 30
September 2015 clarified that the process of short listing
which would be carried out would be only on the basis of
the length of practice of the members of the Bar, should
the number of candidates be unduly large; and fourthly,
the decision to prescribe cut off marks for the viva-voce
was taken much after the viva-voce tests were conducted
in the month of January 2017.
15. For the above reasons, we have come to the conclusion
that the broader constitutional issue which has been referred
in Tej Prakash Pathak (supra) would not merit decision on
the facts of the present case. Clearly, the decision which was
taken by the High Court was ultra vires Rule 2(c)(iii) as it
stands. As a matter of fact, during the course of the hearing
we have been apprised of the fact that the Rules have
been subsequently amended in 2017 so as to prescribe a
cut off of 35% marks in the viva-voce examination which
however was not the prevailing legal position when the
present process of selection was initiated on 30 September
2015. The Administrative Committee of the High Court
[2024] 2 S.C.R. 241
Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
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. However
laudable that approach of the Administrative Committee
may have been, such a change would be required to be
brought in by a substantive amendment to the Rules which
came in much later as noticed above. 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.”
24. The ratio of this authority is squarely applicable in the facts of this
case. Submission on behalf of the High Court administration that
Rule 14 permits them to alter the selection criteria after the selection
process is concluded and marks are declared is not proper exposition
of the said provision. The said Rule, in our opinion, empowers the
High Court administration in specific cases to reassess the suitability
and eligibility of a candidate in a special situation by calling for
additional documents. The High Court administration cannot take aid
of this Rule to take a blanket decision for making departure from the
selection criteria specified in the 2001 Rules. The content of Rule
14 has the tenor of a verification process of an individual candidate
in assessing the suitability or eligibility.
25. We, accordingly, allow both the writ petitions by directing the High
Court to make recommendation for those candidates who have been
successful as per the merit or select list, for filing up the subsisting
notified vacancies without applying the Full Court Resolution that
requires each candidate to get 50 per cent aggregate marks. The
part of the Full Court Resolution of the Jharkhand High Court dated
23.03.2023 by which it was decided that only those candidates who
have secured at least 50% marks in aggregate shall be qualified for
appointment to the post of District Judge is quashed.
26. We expect the exercise of recommendation in terms of this judgment
to be completed as expeditiously as possible.
27. We do not find any reason to address the impleadment applications
as this judgment will cover the entire recommendation process.
Headnotes prepared by: Divya Pandey Result of the case:
Writ petitions allowed.
