# Abhimeet Sinha & Ors v. High Court of Judicature at Patna & Ors

- **Citation:** 2024 INSC 381
- **Court:** Supreme Court of India
- **Decided:** 2024-05-06
- **Bench:** Hrishikesh Roy, Prashant Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abhimeet-sinha-ors-v-high-court-of-judicature-at-patna-ors-37749
- **Pages:** 64

## Headnote

Issue arose as regards the constitutionality of the Rules-Bihar
Superior Judicial Service Rules, 1951 and Gujarat State Judicial
Service Rules, 2005 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;
whether the prescription of minimum marks for viva voce, in
contravention of the law laid down by this Court in All India Judges
(2002) which accepted certain recommendations of the Shetty
Commission; whether the prescription of minimum marks for viva
voce, violative of Articles 14 and 16 of the Constitution of India;
whether the selection process in Bihar vitiated given the moderation
of marks and corrective steps; whether non-consultation with the
Public Service Commission as required u/Art. 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.
Headnotes†
Judiciary - Selection of judicial officers - 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 - Rule 8(5) of Gujarat
Rules, 2005 and Clause 11 of the Bihar Rules prescribing
minimum qualifying marks in the viva voce test as a part of
the selection criteria for appointment, if in contravention of
the law laid down by this Court in *All India Judges (2002)
case which accepted certain recommendations of the Shetty
Commission:
Held: Prescription of minimum qualifying marks for interview is
permissible - It is not in violation of *All India Judges (2002)
case which accepted certain recommendations of the Shetty
Commission - Judgment in *All India Judges (2002) case is sub-
[2024] 6 S.C.R.
531
Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.
silentio on the aspect of minimun marks for interview - It cannot
be considered as having authoritatively pronounced on doing away
with minimum cut-off marks in the interview segment - In case of
inconsistency between the Shetty Commission recommendations
and the Rules, primacy should be given to the existing statutory
Rules - In the absence of existing Rules, the High Court should
follow the directions of this Court - Furthermore, even though the
statutory Rules can be supplemented to fill in gaps, the High Court
cannot act contrary to the Rules - Prescription of minimum cutoff in the recruitment process was notified for information of the
candidates well before the commencement of the selection process
under the Patna High Court - By virtue of the decision in *All India
Judges (2002), it cannot be said that adequate elbow room was
not available to prescribe qualifying marks in the interview segment
to ensure the selection of the best possible person - Thus, the
prescription of minimum marks in the Rules is not found to be in
contravention of the judgment in the *All-India Judges (2002) -
Bihar Superior Judicial Service Rules, 1951 - Gujarat State Judicial
Service Rules, 2005. [Paras 102, 37, 39, 40, 48, 49]
Judiciary - Selection of judicial officers - Rule 8(5) of Gujarat
Rules, 2005 and Clause 11 of the Bihar Rules prescribing
minimum qualifying marks in the viva voce test as a part of the
selection criteria for appointment, if violative of Art. 14 and 16:
Held: Validity challenge to Clause 11 of the Bihar Rules, 1951
and s. 8(3) of the Gujarat Rules, 2005 (as amended in 2011)
prescribing minimum marks for interview are repelled - Recruitment
procedure should not only test the candidate's intellect but also
their personality, for appointment to posts in the higher judiciary - In
recruitment for judicial vacancies oral interviews play an important
role to test the personality and caliber of the aspirant to judicial
posts - High scores for the written test by itself do not determine the
merit and suitability of an aspirant - An interview can also provide
a me

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* Author
[2024] 6 S.C.R. 530 : 2024 INSC 381
Abhimeet Sinha & Ors.
v.
High Court of Judicature at Patna & Ors.
(Writ Petition (C)No. 251 of 2016)
06 May 2024
[Hrishikesh Roy* and Prashant Kumar Mishra, JJ.]
Issue for Consideration
Issue arose as regards the constitutionality of the Rules-Bihar
Superior Judicial Service Rules, 1951 and Gujarat State Judicial
Service Rules, 2005 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;
whether the prescription of minimum marks for viva voce, in
contravention of the law laid down by this Court in All India Judges
(2002) which accepted certain recommendations of the Shetty
Commission; whether the prescription of minimum marks for viva
voce, violative of Articles 14 and 16 of the Constitution of India;
whether the selection process in Bihar vitiated given the moderation
of marks and corrective steps; whether non-consultation with the
Public Service Commission as required u/Art. 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.
Headnotes†
Judiciary - Selection of judicial officers - 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 - Rule 8(5) of Gujarat
Rules, 2005 and Clause 11 of the Bihar Rules prescribing
minimum qualifying marks in the viva voce test as a part of
the selection criteria for appointment, if in contravention of
the law laid down by this Court in *All India Judges (2002)
case which accepted certain recommendations of the Shetty
Commission:
Held: Prescription of minimum qualifying marks for interview is
permissible - It is not in violation of *All India Judges (2002)
case which accepted certain recommendations of the Shetty
Commission - Judgment in *All India Judges (2002) case is sub-
[2024] 6 S.C.R.
531
Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.
silentio on the aspect of minimun marks for interview - It cannot
be considered as having authoritatively pronounced on doing away
with minimum cut-off marks in the interview segment - In case of
inconsistency between the Shetty Commission recommendations
and the Rules, primacy should be given to the existing statutory
Rules - In the absence of existing Rules, the High Court should
follow the directions of this Court - Furthermore, even though the
statutory Rules can be supplemented to fill in gaps, the High Court
cannot act contrary to the Rules - Prescription of minimum cutoff in the recruitment process was notified for information of the
candidates well before the commencement of the selection process
under the Patna High Court - By virtue of the decision in *All India
Judges (2002), it cannot be said that adequate elbow room was
not available to prescribe qualifying marks in the interview segment
to ensure the selection of the best possible person - Thus, the
prescription of minimum marks in the Rules is not found to be in
contravention of the judgment in the *All-India Judges (2002) -
Bihar Superior Judicial Service Rules, 1951 - Gujarat State Judicial
Service Rules, 2005. [Paras 102, 37, 39, 40, 48, 49]
Judiciary - Selection of judicial officers - Rule 8(5) of Gujarat
Rules, 2005 and Clause 11 of the Bihar Rules prescribing
minimum qualifying marks in the viva voce test as a part of the
selection criteria for appointment, if violative of Art. 14 and 16:
Held: Validity challenge to Clause 11 of the Bihar Rules, 1951
and s. 8(3) of the Gujarat Rules, 2005 (as amended in 2011)
prescribing minimum marks for interview are repelled - Recruitment
procedure should not only test the candidate's intellect but also
their personality, for appointment to posts in the higher judiciary - In
recruitment for judicial vacancies oral interviews play an important
role to test the personality and caliber of the aspirant to judicial
posts - High scores for the written test by itself do not determine the
merit and suitability of an aspirant - An interview can also provide
a medium for marginalized candidates to showcase their talents in
ways which a written test may not possibly allow - Members of the
interview board can provide a level-playing field during the interview
process for those who come from a disadvantaged background, to
assess the true merit and potential of the interviewees - Solution
lies in the interviewing members being aware and sensitive
to alleviate bias in the process of interview - However, the
apprehension of bias cannot be the sole ground to strike down a
532
[2024] 6 S.C.R.
Digital Supreme Court Reports
Rule - Overriding weightage to the viva voce segment has been
frowned upon but the prescription of reasonable qualifying cut-off
marks is not considered discriminatory - Minimum cut-off of 20%
for the Bihar recruitment and 40% for the Gujarat recruitment ,
cannot be considered to provide a high threshold if one keeps in
mind that the recruitment is for selection of judicial officers - Thus,
the concerned recruitment Rules not unconstitutional - There is
no violation of the legitimate expectation of the writ petitioners so
as to fail the test u/Art. 14 -Bihar Superior Judicial Service Rules,
1951 -Gujarat State Judicial Service Rules, 2005. [Paras 102, 57,
60, 63, 65, 66, 68]
Judiciary - Selection of judicial officers - District Judge
(Entry Level) by direct recruitment from the Bar for the
State of Bihar and recuitment to the post of Civil Judge in
the State of Gujarat - Rules stipulating minimum qualifying
marks in the viva voce test as a part of the selection criteria
for appointment - Selection process, if vitiated given the
moderation of marks and corrective steps:
Held: Selection process in the State of Bihar found to be legally
valid and are upheld - On examination of the subsequent steps
taken by the High Court after conducting the exam, no mala fide
or statutory violation found so as to vitiate the entire selection
process in Bihar - High Court was vested with requisite powers to
provide clarification, relaxation and even exemption in the interest
of the Judiciary - Words "relaxation" as also the general power to
issue orders/directions in case of any "difficulty", would permit the
process of moderation in order to provide for the adequate number
of candidates for the interview test - In a moderation exercise,
addition of marks and/or deduction of marks is envisaged - If certain
resolvable deficiencies are noticed in the selection process, the High
Court has the elbow room to take corrective measures - Process
of moderation can always be exercised bona fide if it uniformly
benefits all the candidates - It cannot be said that corrective
measures were not bonafide - Process adopted is consistent
with the Rules - Chart produced makes it clear that moderation,
in fact, benefited the writ petitioners to facilitate their participation
in the interview round - Decision of the Selection Committee was
approved by the Full Court for increasing the number of candidates
available for final selection - As regards, Gujarat cases, besides
making vague allegations, nothing presented to demonstrate any
malicious intent or bias on the part of the selection Committee in
[2024] 6 S.C.R.
533
Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.
the interview process - Thus, the selection process not found to
be tainted - Bihar Superior Judicial Service Rules, 1951 - Gujarat
State Judicial Service Rules, 2005. [Paras 102, 80, 75, 76, 78, 79]
Constitution of India - Art.234 - Appointment of persons other
than district judges to the judicial service - Selection to the
post of Civil Judge in the State of Gujarat - Non-consultation
with the Public Service Commission as required u/Art. 234 for
amending the selection Rules-Gujarat Rules, 2005(as amended
in 2011) stipulating minimum viva voce marks, if rendered void:
Held: Non-consultation with the Public Service Commission would
not render the Gujarat Rules, 2005 (as amended in 2011) void -
In Gujarat, when the Public Service Commission did not wish
to be consulted under the proviso to Art. 320(3), in the absence
of such consultation, it cannot be held that the Gujarat Rules,
2005 suffers from any legal or constitutional invalidity particularly
when the Rules were framed with due consultation with the High
Court - Consultation with the High Court as envisaged in Art. 234
is to preserve the constitutional mandate of the independence of
the judiciary - Consultation with the High Court must be given
primacy in matters of judicial recruitment as compared to the
consultation with the Public Service Commission - Governor is
under no compulsion to consult the Public Service Commission
in case the Commission does not wish to be consulted - Gujarat
Rules cannot, thus, be declared to be void on this count - Status
which the High Court as an institution enjoys in the constitutional
scheme and the expertise and the experience which it possesses
of judicial services, justify a place of primacy being assigned to the
High Court in the process of consultation - Thus, it is mandatory
to consult the High Court for framing Rules and any Rule enacted
by the State Government without such consultation is ultra vires.
[Paras 102, 97,87, 93, 96]
Judiciary - Recruitment/Selection of judicial officers - Certain
directions/suggestions as regards the conduct of judicial
service examinations:
Held: Processes such as moderation should be preferably set
out in the Rules to ensure transparency and avoid dilemmas in
the selection process - Moderation of marks for bonafide reasons
should be permitted when the authority needs to do so, to address
the issue of non availability of adequate number of candidates
for consideration in the interview segment - Furthermore, there
534
[2024] 6 S.C.R.
Digital Supreme Court Reports
is absence of a designated authority that can be approached by
the candidates - Concerned High Court to notify a designated
authority for a given recruitment process with clearly defined roles,
functions and responsibilities - Candidates can approach such a
designated authority to seek clarification in case of any doubt and
this would assuage the anxiety of the candidates to a considerable
extent - Designation of those in the interview panel, be provided
for appropriately, in the Rules - Basic outline of the syllabus for
the proposed test to be provided, to help candidates from diverse
backgrounds to plan and prepare for the proposed examination even
before the examination notification is released - Also the recruitment
process must adhere to the timeline but if there is any special and
unavoidable exigency, the stakeholders should be kept informed
with due promptitude - Said judgment to be brought to the notice of
the Hon'ble Chief Justices of all the High Courts in India to enable
all the stakeholders to take consequential steps. [Paras 100, 101]
Constitution of India - Art. 32 - Writ petition - Maintainability -
Principle of estoppel - Applicability - Matter pertaining to
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 - Plea of the various High Courts 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; that
all candidates knew about the prescription of minimum marks
for viva voce, well before the selection process commenced
and the principle of estoppel would operate against the
unsuccessful challengers whereas the writ petitioners pleaded
that the principle of estoppel not applicable since glaring
illegalities in the selection process; and that the estoppel is
not applicable when the arbitrariness affects fundamental
rights u/Art. 14 and 16:
Held: Principle of estoppel cannot override the law - In matters like
this, to non-suit the writ petitioners at the threshold would hardly be
reasonable when the alleged deficiencies in the process could be
gauged only by participation in the selection process. [Paras 19-20]
Constitution of India - Art. 32 - Principle of res judicata -
Instant matter as regards constitutionality of the Rules
stipulating minimum qualifying marks in the viva voce test as
[2024] 6 S.C.R.
535
Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.
a part of the selection criteria for appointment to the District
Judiciary in the States of Bihar and Gujarat respectively -
Validity of r. 8(3) of the Gujarat Rules, 2005 (as amended) was
earlier challenged before the Supreme Court, and this Court
transferred the said writ petition to the Gujarat High Court
wherein the High Court upheld the validity of the amendment
prescribing 40% cutoff marks for interview, and Special Leave
Petition thereagainst was dismissed - Principle of res judicata,
if attracted:
Held: Principle of res judicata cannot however be applied stricto
sensu - It was not the same writ petitioner who has approached
this Court under Art. 32 - Court here is confronted with a different
set of facts, another set of litigants who have raised additional
contentions - Thus, the submission that the writ petition should not
be dismissed on the ground of res-judicata, is reasonable - In any
case, the dismissal of Special Leave Petition has no consequence
on the question of law. [Para 23]
Judiciary - Selection of judicial officers - *All India Judges
(2002) matter which accepted certain recommendations of
the Shetty Commission while modifying or rejecting a few
others - Explained.[Paras 33, 34, 36, 37, 49]
Judiciary - Selection of judicial officers - Recommendations of
the Shetty Commission - Genesis - Explanation of. [Paras 25-32]
Judiciary - Selection of judicial officers - Recommendations
of the Shetty Commission - Implementation of:
Held: On facts, 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 - There cannot be selective implementation
of the Shetty Commission recommendation, for doing away with
the cut-off marks in the viva voce segment - Candidates cannot
be allowed to "approbate and reprobate" in the same breath - It
would be impermissible to seek dilution of the Shetty Commission
recommended criteria, only for the viva voce segment- Shetty
Commission recommended that the degree of subjectivity and
arbitrariness should be reduced and the selection should be
transparent. [Paras 30, 31]
Gujarat State Judicial Service Rules, 2005 - r. 8(5) - Viva
voce - Object - Explained. [Para 67]
536
[2024] 6 S.C.R.
Digital Supreme Court Reports
Case Law Cited
*All India Judges Association and Others v. Union of
India and Others [2002] 2 SCR 712 : (2002) 4 SCC
247 - explained and relied on.
Dr. (Major) Meeta Sahai v. Union of India (2019) 20
SCC 17 - relied on.
Sivananda CT v. High Court of Kerala [2023] 11 SCR
674 : (2024) 3 SCC 799; Hemani Malhotra v. High
Court of Delhi [2008] 5 SCR 1066 : (2008) 7 SCC 11;
Ramesh Kumar v. High Court of Delhi [2010] 2 SCR
256 : (2010) 3 SCC 104 - distinguished.
AC Thalwal v. High Court of Himachal Pradesh [2000]
Supp. 2 SCR 428 : (2000) 7 SCC 1 - held inapplicable.
N. Devasahayam v. State of Madras, AIR (1958) Mad
53 - disapproved.
Raj Kumar v. Shakti Raj [1997] 1 SCR 1159 : (1997)
9 SCC 527; Basheshar Nath v. Commr. of Income-tax,
Delhi [1959] Supp. 1 SCR 528 : AIR (1959) SC 149;
Olga Tellis v. Bombay Municipal Corporation [1985]
Supp. 2 SCR 51 : AIR (1986) SC 180; Nar Singh Pal
v. Union of India and others [2000] 2 SCR 752 : (2000)
3 SCC 588; Madan Lal v. State of J&K [1995] 1 SCR
908 : (1995) 3 SCC 486; Dhananjay Malik v. State of
Uttaranchal [2008] 3 SCR 1035 : (2008) 4 SCC 171;
Ramesh Chandra Shah v. Anil Joshi [2013] 5 SCR
687 : (2013) 11 SCC 309; Anupal Singh v. State of
Uttar Pradesh [2019] 12 SCR 1071 : (2020) 2 SCC
173; Krishna Rai v. Banaras Hindu University [2022]
7 SCR 1104 : (2022) 8 SCC 713; Daryao v. State of
UP [1962] 1 SCR 574 : AIR (1961) SC 1457; Inderjit
Singh Sodhi v. Chairman, Punjab State Electricity Board
[2020] 11 SCR 966 : (2021) 1 SCC 198; All India Judges
Association v. Union of India [1991] Supp. 2 SCR 206 :
(1992) 1 SCC 119; All India Judges Association v. Union
of India [1993] Supp. 1 SCR 749 : (1993) 4 SCC 288;
Pradeep Kumar Rai v. Dinesh Kumar Pandey [2015] 6
SCR 825 : (2015) 11 SCC 493; Dr. Kavita Kamboj v.
High Court of Punjab and Haryana and Others [2024]
2 SCR 1136 : 2024 SCC OnLine SC 254; Syed T.A.
[2024] 6 S.C.R.
537
Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.
Naqshbandi v. State of J&K [2003] Supp. 1 SCR 114 :
(2003) 9 SCC 592; Rakhi Ray v. High Court of Delhi
[2010] 2 SCR 239 : (2010) 2 SCC 637; Mahinder
Kumar v. High Court of Madhya Pradesh [2013] 13
SCR 884 : (2013) 11 SCC 87; Sasidhar Reddy v. State
of AP [2013] 12 SCR 985 : (2014) 2 SCC 158; Salam
Samarjeet Singh v. High Court of Manipur at Imphal
[2016] 9 SCR 771 : (2016) 10 SCC 484; Shayara Bano
v. Union of India [2017] 9 SCR 797 : (2017) 9 SCC 1;
Joseph Shine v. Union of India [2018] 11 SCR 765 :
(2019) 3 SCC 39; Lok Prahari v. State of UP 2016 (4)
SCR 1026 : (2016) 8 SCC 389; E.P. Royappa v. State
of T.N [1974] 2 SCR 348 : (1974) 4 SCC 3; Ajay Hasia
v. Khalid Mujib Sehravardi [1981] 2 SCR 79 : (1981)
1 SCC 722; Association for Democratic Reforms v.
Union of India [2024] 2 SCR 420 : 2024 INSC 113;
Lila Dhar v. State of Rajasthan [1982] 1 SCR 320 :
(1981) 4 SCC 159; KH Siraj v. High Court of Kerela
[2006] Supp. 2 SCR 790 : (2006) 6 SCC 395; State
of UP v. Rafiquiddin [1988] 1 SCR 794 : (1987) Supp
SCC 410; Taniya Malik v. Registrar General of the High
Court of Delhi [2018] 10 SCR 348 : (2018) 14 SCC
129; Pranav Verma v. The Registrar General of High
Court [2019] 15 SCR 43 : (2020) 15 SCC 377; B.K.
Pavitra v. Union of India [2017] 1 SCR 631 : (2019)
16 SCC 129; Manish Kumar Shahi v. State of Bihar
(2010) 12 SCC 576; Ashok Kumar Yadav v. State of
Haryana [1985] Supp. 1 SCR 657 : (1985) 4 SCC
417; Inderpreet Singh Kahlon v. State of Punjab [2006]
Supp. 1 SCR 772 : (2006) 11 SCC 356; Sanjay Singh
v. UP Public Service Commission [2007] SCR 1 235 :
(2007) 3 SCC 720; State of Bihar v. Bal Mukund Sah
[2000] 2 SCR 299 : (2000) 4 SCC 640; State of U.P.
v. Manbodhan Lal Srivastava [1958] 1 SCR 533 : AIR
(1957) SC 912; Rajendra Singh Verma v. Lt. Governor
(NCT of Delhi) [2011] 12 SCR 496 : (2011) 10 SCC
1; Supreme Court Advocateson-Record Association v.
Union of India [1993] Supp. 2 SCR 659 : (1993) 4 SCC
441; Hari Dutt Kainthla v. State of Himachal Pradesh
[1980] 3 SCR 364 : (1980) 3 SCC 189; Goa Judicial
Officer's Association v. State of Goa (1997) 4 BOM CR
372; Malik Mazhar v. U.P Public Service Commission
[2006] 3 SCR 689 : (2006) 9 SCC 507 - referred to.
538
[2024] 6 S.C.R.
Digital Supreme Court Reports
Books and Periodicals Cited
Michael J Sandel, The Tyranny of Merit: What's become
of the Common Good? (Allen Lane,2020) - referred to.
Websites
Diksha Sanyal and Shriyam Gupta, "Discretion and
Delay: Challenges in Becoming a District and Civil
Judge" (December 2018) <https://vidhilegalpolicy.in/
research/2019-1-7-discretionand-delaychallenges-ofbecoming-a-district-and-civil-judge/> accessed 3rd May,
2024 - referred to.
List of Acts
Constitution of India; Bihar Superior Judicial Service Rules, 1951;
Bihar Superior Judicial (Amendment) Rules 2013; Gujarat State
Judicial Service Rules, 2005; Gujarat Judicial Services Recruitment
Rules,1961; Gujarat State Judicial Service (Amendment) Rules,
2011; Gujarat State Judicial Service (Amendment Rule, 2014);
Gujarat Public Service Commission (Exemption from Consultation)
Regulations,1960.
List of Keywords
Recruitment; Selection of judicial officers; District Judge (Entry Level)
by direct recruitment from Bar; Post of Civil Judge; Minimum qualifying
marks in the viva voce test; District Judiciary in the States of Bihar
and Gujarat; All India Judges (2002) case; Recommendations of
the Shetty Commission; Moderation of marks and corrective steps;
Non-consultation with the Public Service Commission; Minimun
marks for interview; Inconsistency between the Shetty Commission
recommendations and the Recruitment Rules; Statutory Rules,
supplemented to fill in gaps; Recruitment process; Uniformity in
service conditions of judicial officers; Viva voce test as part of
selection criteria for appointment; Legitimate expectation; Public
Service Commission; Writ petition, maintainability; Principle of
estoppel; Arbitrariness; Principle of res judicata.
Case Arising From
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.251 of 2016
(Under Article 32 of The Constitution of India)
With
Writ Petition (C) Nos. 663 and 735 of 2021, 1073 and 1146 of 2022
and 785 of 2023
[2024] 6 S.C.R.
539
Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.
Appearances for Parties
Ajit Kumar Sinha, Rameshwar Singh Malik, Yatindra Singh, Sr.
Advs., Deepak Goel, Mithilesh Kumar Jaiswal, Ms. Alka Goyal, Ms.
Urvashi Sharma, Ms. Harshita Maheshwari, Kumar Kartikay, Mrs.
Archana Preeti Gupta, Naveen Soni, Vipin Kumar Saxena, Jitesh
Malik, B C Bhatt, Mrs. Leelawati Suman, N D Kaushik, Satish
Kumar, Anil Kumar Sahu, Arvind Gupta, Prakash Gautam, Sujeet
Kumar, Arunansh Bharti Goswami, Brahma Prakash, Pawanshree
Agrawal, Sunil Kumar Jain, Ms. Rashika Swarup, Rishabh Sancheti,
Ms. Padma Priya, Garvit Sharma, K. Paari Vendhan, Ms. Shraddha
Deshmukh, Arjun Singh Bhati, Gurdeep Singh, Gautam Narayan,
Ms. Asmita Singh, Harshit Goel, Sujay Jain, K. Prasad, Purvish
Jitendra Malkan, Ms. Dharita Purvish Malkan, Alok Kumar, Kush
Goel, Ms. Deepa Gorasia, Ms. Deepanwita Priyanka, Ms. Prerna
Singh, Guntur Prabhakar, Guntur Pramod Kumar, Lalit Kumar,
Devendra Singh, Mritunjay Kumar Sinha, Mrs. Vimal Sinha, Abhay
Kumar, B S Rajesh Agrajit, Ms. Rajbala, Ms. Meetu Goswami,
Shyamal Kumar, Krishnavani Sharma, Hitesh Kumar Sharma,
Akhileshwar Jha, Sandeep Singh Dingra, Ms. Tanishka Grover, Amit
Kumar Chawla, Verendra Mohan, Ms. Niharika Dewivedi, Ranjit
Kumar Sharma, Amit Pawan, Ratnesh Kumar Shukla, Purushottam
Sharma Tripathi, Vimal Dubey, Mukesh Kumar Singh, Ravi Chandra
Prakash, Ms. Vani Vyas, Anup Kumar, M/S. Parekh & Co., Advs.
for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
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
540
[2024] 6 S.C.R.
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in All India Judges Association and Others vs. Union of India and
Others1 (for short "All India Judges (2002)) which accepted certain
recommendations of Justice KJ Shetty Commission (for short
"Shetty Commission"). The recruitment pertains to the selection of
judicial officers of different ranks and respective selection cycles
i.e. District Judge (Entry Level) by direct recruitment from the Bar
(2015 Advertisement) for the State of Bihar and the post of Civil
Judge (2019 and 2022 Advertisement) for the State of Gujarat.
The Individual facts in the writ petitions may differ but the legal
arguments broadly overlap. Wherever necessary, the individual
facts and legal arguments will be dealt with separately.
I. FACTS
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.
1
[2002] 2 SCR 712 : (2002) 4 SCC 247
[2024] 6 S.C.R.
541
Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.
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
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[2024] 6 S.C.R.
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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
[2024] 6 S.C.R.
543
Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.
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,
544
[2024] 6 S.C.R.
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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:-
[2024] 6 S.C.R.
545
Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.
"12. A candidate will qualify for appointment if the
candidate secures at least 45% marks in each theory
paper, 30% marks in viva-voce/interview and 50%
marks in aggregate in written test (theory papers)
and viva-voce taken together."
5.4. With the above amendment carried out on 6.1.2020, a candidate
aspiring for selection in the Bihar Superior Judicial Service is
required to score 30% marks in the interview and 50% in the
aggregate of written test and viva-voce test taken together, to
qualify for recruitment.
C) Gujarat Selection Process
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;
546
[2024] 6 S.C.R.
Digital Supreme Court Reports
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
[2024] 6 S.C.R.
547
Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.
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.