Summary of Judgement

The Judgement

Hrishikesh Roy, J.

1. 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 in All India Judges Association and Others v. Union of India and Others (2002) 4 SCC 247  (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

2. 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.

3. 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.

A) Bihar Selection Process (2015)

4. 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.

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

12. 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 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 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, 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

5. 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:-

“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 vivavoce test taken together, to qualify for recruitment.

C) Gujarat Selection Process

6. 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;

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 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

7. 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.

8. 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.

9. 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 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.

10. 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 of vacancies, the relaxation of qualifying marks in the interview segment should have been a natural option.

13. 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.

14. 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.

15. 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.

16. 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.

III. ISSUES

17. The issues to be considered here are:

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

18. 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 illegalities ² in the selection process. Further, estoppel is not applicable when the arbitrariness affects fundamental rights under Articles 14 and 16 of the Constitution of India ³.

² Raj Kumar v. Shakti Raj (1997) 9 SCC 527.

³ Basheshwar Nath v. Commr. of Income-tax, Delhi AIR 1959 SC 149; Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180 ; Nar Singh Pal v. Union of India and others 2000 3 SCC 588.

19. As argued by the learned counsel for the High Courts, the legal position is that after participating in the recruitment process, the unsuccessful candidates cannot turn around and challenge the recruitment process ⁴. However, it is also settled that the principle of estoppel cannot override the law ⁵. Such legal principle was reiterated by the Supreme Court in Dr.(Major) Meeta Sahai v. Union of India (2019) 20 SCC 17 where it was observed as under:

“17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.”

⁴ Madan Lal v. State of J&K (1995) 3 SCC 486  ; Dhananjay Malik v. State of Uttaranchal (2008) 4 SCC 171  ; Ramesh Chandra Shah v. Anil Joshi (2013) 11 SCC 309 ; Anupal Singh v. State of Uttar Pradesh (2020) 2 SCC 173.

⁵ Krishna Rai v. Banaras Hindu University (2022) 8 SCC 713.

20. Guided by the above ratio, in matters like this, to non-suit the writ petitioners at the threshold would hardly be reasonable particularly when the alleged deficiencies in the process could be gauged only by participation in the selection process.

21. The next question is whether the principle of res judicata is attracted in these cases. Mr. Purvish Malkan, learned counsel for the High Court of Gujarat brought to our notice that the validity of Rule 8(3) of the Gujarat Rules,2005 (as amended on 23.6.2011) was earlier challenged before the Supreme Court in WP(C) 291 of 2013. This Court after completion of pleadings transferred the said writ petition to the Gujarat High Court. Thereafter, the Gujarat High Court in a detailed judgment in the Special Civil Application No.8793 of 2015, upheld the validity of the amendment prescribing 40% cutoff marks for interview. The Special Leave Petition arising from the said judgment was dismissed by this Court on 30.1.2017.

22. In the above context, a Constitution Bench of this Court in Daryao v. State of UP AIR 1961 SC 1457 (for short “Daryao”) unanimously held that the principle of res judicata is one of universal application and since the final judgment is binding on the parties thereto, an applicant under Article 226 cannot apply on the same grounds under Article 32, without getting the adverse judgment set aside in appeal. However, a distinction was made between cases where the application under Article 226 has been dismissed on merits and cases where it is dismissed on a preliminary ground. It was further held that an Article 32 petition would not be maintainable on the same facts and the same grounds.

23. The above ratio cannot however be applied stricto sensu in the present facts. This is for the reason that it is not the same writ petitioner who has approached this Court under Article 32 of the Constitution. The Court here is confronted with a different set of facts, another set of litigants who have raised additional contentions. Therefore, the submission of Mr. Pawanshree Agrawal, learned counsel for the writ petitioner that the writ petition should not be dismissed on the ground of res-judicata, is found to be more reasonable. In any case, the dismissal of a Special Leave Petition has no consequence on the question of law ⁸.

⁸ Inderjit Singh Sodhi v. Chairman, Punjab State Electricity Board, (2021) 1 SCC 198.

24. Let us now address the fundamental question as to whether prescribing minimum marks for interview contravenes the ratio in All India Judges (2002). To do this, it is necessary to bear in mind the following contextual background.

V. GENESIS OF THE SHETTY COMMISSION

25. In 1989, the All-India Judges’ Association and its working President filed a writ petition under Article 32 of the Constitution of India seeking various reliefs for members of the District Judiciary focusing on uniformity in service conditions. On 13.11.1991, a three-judge bench speaking through Ranganath Misra CJ disposed of the said writ petition in All India Judges Association v. Union of India (1992) 1 SCC 119, after considering, inter alia, the issues relating to pay scales and service conditions of the District Judiciary. The Supreme Court directed States and Union Territories to separately examine and review the pay structure. Aggrieved by the aforesaid judgment, the Union of India and few State Governments filed review petitions before this Court. In All India Judges Association v. Union of India (1993) 4 SCC 288  (for short “All India Judges(1993)), this Court on 24.8.1993, modified some of the reliefs in the original judgment but, inter alia, recommended that the service conditions of judicial officers should be reviewed periodically by an independent Commission exclusively constituted for the purpose. From 1993 onwards, this Court exercising its writ remedy of ‘continuing mandamus’ had issued multiple directions under the rubric of this case.

26. Pursuant to the aforementioned direction, the Union of India appointed the first National Judicial Pay Commission on 21.3.1996 under the chairmanship of Justice KJ Shetty. Justice Shetty Commission submitted a preliminary report on 31.1.1998 and a final report on 11.11.1999. The terms of reference of the Commission are extracted below:

“(a) To evolve the principles which should govern the structure of pay and other emoluments of judicial officers belonging to the subordinate judiciary all over the country.

(b) To examine the present structure of emoluments and conditions of service of judicial officers in the States, Union territories taking into account the total packet of benefits available to them and make suitable recommendations having regard, among other relevant factors, to the existing relativities in the pay structure between the officers belonging to subordinate judicial service vis-a-vis other civil servants.

(c) To examine and recommend in respect of minimum qualifications, age of recruitment, method of recruitment, etc., for judicial officers. In this context, the relevant provisions of the Constitution and directions of the Supreme Court in All India Judges Association case and other cases may be kept in view.

(d) To examine the work methods and work environment as also the variety of allowances and benefits in kind that are available to judicial officers in addition to pay and to suggest rationalization and simplification thereof with a view to promoting efficiency in judicial administration, optimizing the size of the judiciary etc.”

27. The above would indicate that the terms of reference essentially focused on the evolution of principles that would govern the formulation of pay structure and emoluments of judicial officers. Suggestions were also expected on minimum qualifications, age, and “method of recruitment” etc. for judicial officers. The final report submitted on 11.11.1999 focused on the age of retirement, nomenclature for judicial officers, equation of posts, inter-se seniority, the age for direct recruitment, the establishment of All India Judicial Service, etc.

28. Before extracting the relevant portion of the Shetty Commission report which inter-alia, prescribed that no cut-off marks should be fixed for the interview segment, a reference to the context is apposite:

“10.95 We have earlier set out the procedures followed by the High Courts for selecting candidates for direct recruitment. Most of the High Courts are having only Viva Voce Test.

10.96 High Courts of Andhra Pradesh, Allahabad, Jammu & Kashmir, Madhya Pradesh, Orissa, however, have prescribed written test in addition to viva-voce.

10.97 The Commission has received innumerable complaints that the selection by only viva-voce has more often led to arbitrariness if not whimsical selection, unjust if not unreasonable. With respect to High Courts, we do not want to carry any such impression. But we do feel that there is less transparency and objectivity in the selection process.”

29. Since most of the High Courts were selecting candidates based only on the viva voce test without conducting the written test, the absence of transparency and objectivity in the interview process was noticed. The Commission therefore opined that accepting the viva voce as the sole selection mode could lead to arbitrariness. However, this by itself does not lend any clarity on how prescribing minimum cut-off marks for viva voce together with the written test, could possibly lead to arbitrariness in selection. In order to reduce subjectivity, the Shetty Commission in its subsequent recommendation, delineated the methodology for conducting viva voce as under:

“10.97. ….We would, therefore, like to recommend the following procedure to reduce degrees of subjectivity and arbitrariness:

(i) There shall be written examination followed by viva-voce.

(ii) Written Examination must carry 200 marks on the subject/subjects prescribed by the High Court. The paper should be of a duration of minimum two hours.

(iii) The cut off marks in the Written Examination should be 60% or corresponding grade for general candidates and 50% or corresponding grade for SC/ST candidates. Those who have secured the marks above the cut off marks shall be called for viva-voce Test.

(iv) The viva-voce Test should be in a thorough and Scientific Manner and it should be taken anything between 25 and 30 minutes for each candidate. The viva-voce shall carry 50 marks. There shall be no cut off marks in viva-voce test.

(v) The merit list will be prepared on the basis of marks/grades obtained both in the Written Examination and viva-voce.”

30. At this point, the fundamental fallacy in the argument of the writ petitioners, as is pointed out by Mr. Gautam Narayan, the learned counsel for the High Court of Patna becomes distinctly discernible. If the above procedure recommended by the Shetty Commission is to be implemented stricto sensu, the cut-off marks even for the written examination can never be, below 60%. Therefore, if the recruitment process of the Patna High Court is to be tested on the recommended threshold marks of Shetty Commission i.e. 150 marks out of 250 marks for shortlisting general category candidates in the written exam, none of the writ petitioners would qualify for the viva-voce segment since they never secured the minimum 60% in the written marks aggregate. In the present case, the minimum cut-off as per the amended Rules was 55% and this was further lowered to 50% as per proviso to Clause 10 of Bihar Rules, 1951. The writ petitioners should not therefore be permitted to argue for selective implementation of the Shetty Commission recommendation, for doing away with the cut-off marks in the viva voce segment. In other words, the candidates cannot be allowed to “approbate and reprobate” ¹¹ in the same breath. As such, it would be impermissible to seek dilution of the Shetty Commission recommended criteria, only for the viva voce segment.

¹¹ Pradeep Kumar Rai v. Dinesh Kumar Pandey (2015) 11 SCC 493

31. The Shetty Commission recommended that the degree of subjectivity and arbitrariness should be reduced and the selection should be transparent. In clauses (vi) and (vii) of Para 10.99 of the Report, it was specifically noted as under:

“(vi) Today, the viva voce examination can be more unfair than the written examination in view of the fact that it is decided on chance or impression in the shortest possible time. Rural candidates are generally at a disadvantage in this process. English-speaking candidates sometimes gain advantage without they being superior in skills for the job. A dominant member of the interview board may carry the day to the disadvantage of many deserving candidates. These things happen not necessarily because of any conscious bias or disposition of members of the Board. This is inherent in the process itself as it operates at present in many places. The judiciary cannot afford to lose opportunities to get the most outstanding candidate because of infirmities in the selection system. As such, an alternative procedure by and large modelled on the lines of the written examination is recommended for the viva voce as well.

(vii) The viva-voce Examination will adopt the following procedure:

(a) A proforma containing categories such as knowledge /Skills/ Attitude/ Ethics/Communication /Character, etc., be developed (this will depend on what are the qualities the judiciary is looking for in the prospective Judges being interviewed) in advance and each category may be given relative weightage (credits)in terms of marks. For example, if the total Viva marks are 100, one may assign 10 marks for knowledge /comprehension, 5 marks for ethics /attitude, 25 marks for skills of judging, 10 marks for communication abilities, 10 marks for general knowledge, etc

(b) Each member of the Board including the Chairman will be asked to assign marks for each category immediately after a candidate is interviewed and before the next candidate is called in. To strike some commonality or relative parity in approach of members, the board may have some general discussion before commencement of interview on range of marks to be given for a particular level of assessment. If necessary, some written guidelines may also be circulated to be adhered to in assigning marks at the time of interview.

(c) At the end of each day’s interview, the tabulator will convert the numerical marks assigned to each category into grades and then to grade values. This will then be totalled up and the Cumulative Grade Value Average of each candidate interviewed will be obtained.”

32. As rightly noted above, the English-speaking urban candidates could possibly be at an advantage compared to those from a rural background and those belonging to marginalized communities. It must however be seen that the Shetty Commission report was in the backdrop of High Courts selecting candidates simply on the basis of viva voce without conducting written test. What is also essential to note is that the Shetty Commission recommended evaluation through grades instead of numerical marks, for the selection of judicial officers, whether in written exam or viva voce. It also suggested that there must be written guidelines for assigning marks at the time of the interview.

VI. ISSUE WISE DISCUSSION

Issue No.1)

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?

33. The judgment in All India Judges (2002), will now have to be analyzed in the above prefatory context. The Court therein accepted certain recommendations made by the Shetty Commission while modifying or rejecting a few others. In paragraph 27, the 3-judge bench speaking through Justice B.N. Kirpal specifically noted thus:

“27. … At the same time, we are of the opinion that there has to be certain minimum standard, objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i.e. the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the Higher Judicial Service.” [emphasis supplied]

34. The above would show that while dealing with the method of recruitment, this Court stressed the importance of an objective standard for recruitment and emphasized that the process of direct recruitment should be through a written and viva-voce examination. A careful reading of the entire judgment would show that there is no direct discussion on the aspect of viva voce except the remark in paragraph 27 that there should be an objective method of testing suitability. The issue as to whether there should be minimum qualifying marks for viva-voce, did not engage the Court’s attention. Moreover, even the Shetty Commission report did not provide any specific reasoning as to why there should be no minimum marks for viva