Violated The Law For Bona Fide Reason: Apex Court On Kerala HC's ‘Manifestly Arbitrary’ Handling Of District Judge Selection, Denies Relief Citing Public Interest

The Constitution Bench of the Supreme Court has held that the process followed by the Kerala High Court and its decision to apply minimum cut-off to viva-voce for the District Judiciary examination in 2017 is contrary to the Rule 2(c)(iii) of the Kerala State Higher Judicial Services Special Rules, 1961.

The Supreme Court found that the decision of the Administrative Committee of the High Court was "manifestly arbitrary" and against the legitimate expectations of the candidates. However, the Court also held that the decision was "actuated by the bona fide reason of ensuring that candidates with requisite personality assume judicial office".

The Court held this while dealing with a batch of four writ petitions preferred by eleven candidates of the District Judiciary examination against the Kerala High Court. The petitioners were denied relief stating that unseating the candidates selected by the High Court through the "manifestly arbitrary" method, who are still serving the district judiciary, would be "contrary to public interest since they have gained experience as judicial officers in the service of the State of Kerala".

The Constitution Bench also found that the reference of the matter to the Constitution Bench by a two-judge Bench of Justice Kurian Joseph and Justice R. Banumathi in 2017 was unwarranted.  The reference of the matter and the resultant delay resulted in the denial of relief to the petitioners despite accepting their arguments against the decision of the High Court. The Bench held that the issues raised in the order of reference "would not merit decision on the facts of the present case".

The Constitution Bench comprising CJI D.Y. Chandrachud, Justice Hrishikesh Roy, Justice P.S. Narasimha, Justice Pankaj Mithal, and Justice Manoj Misra observed, “A public authority must objectively demonstrate by placing relevant material before the court that its decision was in the public interest to frustrate a claim of legitimate expectation. … The decision of the High Court of Kerala to apply a minimum cut-off to the viva voce examination is contrary to Rule 2(c)(iii) of the 1961 Rules. … The High Court’s decision to apply the minimum cut-off marks for the viva voce frustrates the substantive legitimate expectation of the petitioners. The decision is arbitrary and violative of Article 14.”

Senior Advocate V. Chitambaresh with Advocates P.V. Dinesh, Haripriya Padmanabhan, Raghen Basant, and Kuriakose Verghese represented the petitioners while Senior Advocate Dama Seshadri Naidu appeared for the High Court and Senior Advocate K.P. Kylasnatha Pillay represented the private respondents.

Factual Background -

In 2017, a Bench of two Judges of the Apex Court referred a batch of four petitions to the Constitution Bench and eleven petitioners were before the court who were the candidates aspiring to be selected as District Judges in the Higher Judicial Service of the Kerala State. The said Rules 1961 provide for the constitution of the Higher Judicial Service into three categories: (i) Super-time Scale District and Sessions Judge; (ii) Selection Grade District and Sessions Judge; and (iii) District and Sessions Judge, including Additional District Judge. The dispute in this case pertained to the third category herein.

Rule 2(c) provided for the method of appointment of the third category and Rule 2(c)(iii) stipulated that 25% of the posts in the category shall be filled by direct recruitment from the Bar “on the basis of aggregate marks/grade obtained in a competitive examination and viva-voce conducted by the High Court”. The applications were invited from qualified candidates for appointment as District and Sessions Judges and hence, the decision of the Full Court to apply minimum cut-off marks for the viva voce and the resultant promulgation of the list of successful candidates led to the institution of petitions.

The Administrative Committee of the High Court had passed a resolution by which it decided to apply the same minimum cut-off marks which were prescribed for the written examination as a qualifying criterion in the viva-voce. The candidates were aggrieved by the fact that as a result of the application of cut off marks in the viva-voce, they were ousted from selection though they would rank higher than many of the candidates who were selected on the consideration of the aggregate of marks in the written examination and the viva-voce.

The Supreme Court in the above context of the case noted, “Clearly, the decision which was taken by the High Court was ultra vires Rule 2(c)(iii) as it stands. … 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.”

The Court said that the decision of the High Court suffered from its being ultra vires the 1961 Rules besides being manifestly arbitrary. Another important aspect that arose for consideration in this case was whether the High Court’s decision frustrated the legitimate expectation of the petitioners.

The Court in view of the above aspect observed, “The legitimacy of an expectation can be inferred if it is rooted in law, custom, or established procedure. … The underlying basis for the application of the doctrine of legitimate expectation has expanded and evolved to include the principles of good administration. Since citizens repose their trust in the state, the actions and policies of the state give rise to legitimate expectations that the state will adhere to its assurance or past practice by acting in a consistent, transparent, and predictable manner. The principles of good administration require that the decisions of public authorities must withstand the test of consistency, transparency, and predictability to avoid being regarded as arbitrary and therefore violative of Article 14.”

The Court said that the expectations of the petitioners were legitimate as the same were based on the sanction of statutory rules, scheme of examination, and the 2015 examination notification issued by the High Court. It, therefore, held that 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.

“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. … 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”, further held the Court.

The Court concluded that it would not be possible to direct the induction of the petitioners into the Higher Judicial Service at the present stage. However, it clarified that their having failed to gain selection to the Higher Judicial Service in the process, is not a reflection either on their merits or ability and shall not come in the way of their being considered for any other office, judicial or otherwise, in the future.

“The principles of good administration require that the decisions of public authorities must withstand the test of consistency, transparency, and predictability to avoid being termed as arbitrary and violative of Article 14. … An individual who claims a benefit or entitlement based on the doctrine of substantive legitimate expectation has to establish the following: (i) the legitimacy of the expectation; and that (ii) the denial of the legitimate expectation led to a violation of Article 14. … To deprive the state and its citizens of the benefit of these experienced judicial officers at a senior position would not be in public interest.”, also added the Court.

Accordingly, the Apex Court disposed of the writ petitions.

Cause Title- Sivanandan C.T. and Others v. High Court of Kerala and Others (Neutral Citation: 2023 INSC 709)

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