. The selection of District & Sessions Judges in the Kerala Higher Judicial Service in the year 2015- Tej Prakash Pathak and others v. Rajesthan High Court and others2 has, however, specifically doubted the correctness of Manjusree (supra) on the point whether “….changing the rules of the game after the game was 2 (2013) 4 SCC 540 4 played…. is clearly impermissible” and has made a Reference to a larger Bench for an authoritative pronouncement. It is also relevant in this context to note that Salam Samarjeet Singh v. High Court of Manipur At Imphal and Anr.3 which dealt with almost a similar issue was heard by a three Judge Bench in view of the difference of opinion and it has also since been posted along with Tej Prakash (supra) by order dated 10.08.2017. Hence, it is only appropriate to refer this matter also to the larger bench to be heard along with Tej Prakash (supra). Ordered accordingly.

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 229 OF 2017
Sivanandan C.T. & Ors. … Petitioner (s)
Versus
High Court of Kerala & Ors. … Respondent (s)
WITH
WRIT PETITION (CIVIL) NO. 232 OF 2017,
WRIT PETITION (CIVIL) NO. 379 OF 2017,
AND
WRIT PETITION (CIVIL) NO. 618 OF 2017
O R D E R
1. The selection of District & Sessions Judges in the Kerala
Higher Judicial Service in the year 2015 has given rise to this
litigation. As per the Notification dated 30.9.2015 the selection
was to be conducted by written examination and viva-voce. The
written examination of two papers carried 300 marks (150
marks for each paper). The viva-voce was for 50 marks. It was
1
REPORTABLE
stipulated that those general and OBC candidates who secured
50 per cent in the written examination without any separate
minimum and SC/ST who secured 40 per cent were qualified to
participate in the viva-voce.
2. In terms of the Resolution of the Full Court dated
13.12.2012, there should be no minimum cut-off marks for the
interview. The final merit list was to be prepared in the
following manner:-
“..The merit list of successful candidates will
be prepared on the basis of the total marks
obtained in the written examination and
viva-voce.”
As a matter of fact, two selections were held in the years 2013
and 2014 without cut-off marks for the viva-voce. As per the
Resolution dated 13.12.2012, after publishing the result of the
examination, the candidates were interviewed by the Selection
Committee. However, after the viva-voce, the Administrative
Committee (consisting of the same members as the Selection
Committee) resolved to draw up a list of successful candidates
on the basis of same separate minimum percentage of marks
in the viva-voce as in the written examination. According to the
Administrative Committee, the fixing of the minimum marks for
2
the viva-voce was not a deviation from the approved scheme
since “it was never the intention of the Full Court to select
persons who do not attain the minimum required bench mark
for such a responsible post”. The merit list thus drawn by the
Administrative Committee on the basis of the minimum marks
in the viva-voce was approved by the Full Court and those
candidates were appointed accordingly. That selection is
challenged in these cases.
3. The main contention is that the rules of the game could
not have been changed after the game is played and the result
of the game is known to the selectors.
4. Though several other contentions are raised by both
sides, we find that the decision in K. Manjusree v. State of
Andhra Pradesh and another1
, squarely applies to the facts
of this case. In Manjusree (supra), 75 marks were allotted for
the written examination and 25 marks for the interview. The
aggregate governed the merit. However, the written
examination was conducted for 100 marks. When the Full Court
noticed this, a sub-committee was appointed to make the
arithmetical correction to scale down the marks in the written
1
(2008) 3 SCC 512
3
examination to 75 instead of 100. The sub-committee did two
things – (1) it made the arithmetical correction (2) it introduced
the same cut-off percentage for the interview as in the written
examination and thus revised the merit list, which was
approved by the Full Court. In the process, a few candidates
were removed from the original merit list including Manjusree.
A Bench of three Judges of this Court held that “introduction of
the requirement of the 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”. The Bench specifically noted that the
Resolution of the Full Court to not specifically stipulate
minimum marks for viva-voce was still in force. Yet, when the
sub-committee introduced the change, the same was approved
by the Full Court.
5. Tej Prakash Pathak and others v. Rajesthan High
Court and others2
has, however, specifically doubted the
correctness of Manjusree (supra) on the point whether
“….changing the rules of the game after the game was
2
(2013) 4 SCC 540
4
played…. is clearly impermissible” and has made a Reference
to a larger Bench for an authoritative pronouncement. It is also
relevant in this context to note that Salam Samarjeet Singh
v. High Court of Manipur At Imphal and Anr.3
which dealt
with almost a similar issue was heard by a three Judge Bench in
view of the difference of opinion and it has also since been
posted along with Tej Prakash (supra) by order dated
10.08.2017. Hence, it is only appropriate to refer this matter
also to the larger bench to be heard along with Tej Prakash
(supra). Ordered accordingly.
..……………………J.
(KURIAN JOSEPH)
..…….…..…………J.
(R. BANUMATHI)
New Delhi;
November 14, 2017.
3
(2016) 10 SCC 484
5