# CASE DETAILS SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND OTHERS

- **Citation:** 2023 INSC 709
- **Court:** Supreme Court of India
- **Decided:** 2023-07-12
- **Bench:** Dr. Dhananjaya Y Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-sivanandan-c-t-and-others-v-high-court-of-kerala-and-others-36294
- **Pages:** 31

## Headnote

Issue for consideration: Rule 2(c)(iii) of the Kerala State Higher
Judicial Services Special Rules 1961 stipulates that 25% of the posts in the
category shall be fi lled 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 scheme of examination specifi cally
stipulated that there shall be no cut off marks for the viva voce. Whether
the decision of the High Court to prescribe a cut-off for the viva-voce
examination was arbitrary.
Kerala State Higher Judicial Services Special Rules 1961 - rule 2(c)
(iii) - The scheme which was notifi ed by the High Court on 13.12.2012
clearly specifi ed that there would be no cut off marks in respect of the
viva-voce - However, the decision of the High Court to prescribe a cutoff for the viva-voce examination was taken much after the viva-voce
tests were conducted - Propriety:
Held: The Administrative Committee of the High Court decided to
impose a cut off for the viva-voce examination actuated by the bona fi de
reason of ensuring that candidates with requisite personality assume judicial
offi ce - Such a change would be required to be brought in by a substantive
amendment to the Rules which came in much later - 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
675
with the object and spirit of the Rules by an administrative order - In the
present case, the statutory rules expressly provided that the select list would
be drawn up on the basis of the aggregate of marks obtained in the written
examination and the viva-voce - This was further elaborated in the scheme
of examination which prescribed that there would be no cut off marks for
the viva-voce - This position is also refl ected in the notifi cation of the High
Court dated 30.09.2015 - In this backdrop, the decision of the High Court
suff ered from its being ultra vires the 1961 Rules besides being manifestly
arbitrary. [Paras 15 and 16]
Doctrines - Doctrine of legitimate expectation - Claim under:
Held: An individual who claims a benefi t or entitlement based on the
doctrine of legitimate expectation has to establish: (i) the legitimacy of the
expectation; and (ii) that the denial of the legitimate expectation led to the
violation of Article 14. [Para 44]
Doctrines - Doctrine of legitimate expectation - Whether the High
Court's decision frustrates the legitimate expectation of the petitioners:
Held: Rule 2(c)(iii) of the 1961 Rules provided at the material time that
25% of the posts of District and Sessions Judges should be fi lled by direct
recruitment from the Bar on the basis of aggregate marks/grade obtained in
the written examination and the viva-voce conducted by the High Court - The
scheme of examination specifi cally stipulates that there shall be no cut off
marks for the viva voce - The petitioners would have expected no minimum
cut-off for the viva voce in view of the express stipulation in the scheme of
examination - Both the above expectations of the petitioners are legitimate
as they are based on the sanction of statutory rules, scheme of examination
- 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 - In the instant case, the requirement of a minimum
cut-off for the viva-voce was introduced after the viva voce was conducted -
The petitioners had no notice that such a requirement would be introduced for
the viva voce examination - 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, such a course
of action is arbitrary and violative of Article 14. [Paras

## Text

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[2023] 11 S.C.R. 674 : 2023 INSC 709
674
CASE DETAILS
SIVANANDAN C T AND OTHERS
v.
HIGH COURT OF KERALA AND OTHERS
(Writ Petition (Civil) No. 229 of 2017)
JULY 12, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI,
HRISHIKESH ROY, PAMIDIGHANTAM SRI NARASIMHA,
PANKAJ MITHAL, MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: Rule 2(c)(iii) of the Kerala State Higher
Judicial Services Special Rules 1961 stipulates that 25% of the posts in the
category shall be fi lled 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 scheme of examination specifi cally
stipulated that there shall be no cut off marks for the viva voce. Whether
the decision of the High Court to prescribe a cut-off for the viva-voce
examination was arbitrary.
Kerala State Higher Judicial Services Special Rules 1961 - rule 2(c)
(iii) - The scheme which was notifi ed by the High Court on 13.12.2012
clearly specifi ed that there would be no cut off marks in respect of the
viva-voce - However, the decision of the High Court to prescribe a cutoff for the viva-voce examination was taken much after the viva-voce
tests were conducted - Propriety:
Held: The Administrative Committee of the High Court decided to
impose a cut off for the viva-voce examination actuated by the bona fi de
reason of ensuring that candidates with requisite personality assume judicial
offi ce - Such a change would be required to be brought in by a substantive
amendment to the Rules which came in much later - 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
675
with the object and spirit of the Rules by an administrative order - In the
present case, the statutory rules expressly provided that the select list would
be drawn up on the basis of the aggregate of marks obtained in the written
examination and the viva-voce - This was further elaborated in the scheme
of examination which prescribed that there would be no cut off marks for
the viva-voce - This position is also refl ected in the notifi cation of the High
Court dated 30.09.2015 - In this backdrop, the decision of the High Court
suff ered from its being ultra vires the 1961 Rules besides being manifestly
arbitrary. [Paras 15 and 16]
Doctrines - Doctrine of legitimate expectation - Claim under:
Held: An individual who claims a benefi t or entitlement based on the
doctrine of legitimate expectation has to establish: (i) the legitimacy of the
expectation; and (ii) that the denial of the legitimate expectation led to the
violation of Article 14. [Para 44]
Doctrines - Doctrine of legitimate expectation - Whether the High
Court's decision frustrates the legitimate expectation of the petitioners:
Held: Rule 2(c)(iii) of the 1961 Rules provided at the material time that
25% of the posts of District and Sessions Judges should be fi lled by direct
recruitment from the Bar on the basis of aggregate marks/grade obtained in
the written examination and the viva-voce conducted by the High Court - The
scheme of examination specifi cally stipulates that there shall be no cut off
marks for the viva voce - The petitioners would have expected no minimum
cut-off for the viva voce in view of the express stipulation in the scheme of
examination - Both the above expectations of the petitioners are legitimate
as they are based on the sanction of statutory rules, scheme of examination
- 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 - In the instant case, the requirement of a minimum
cut-off for the viva-voce was introduced after the viva voce was conducted -
The petitioners had no notice that such a requirement would be introduced for
the viva voce examination - 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, such a course
of action is arbitrary and violative of Article 14. [Paras 46, 47, 51 and 52]
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND
OTHERS
676
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Principles - Principles of good administration:
Held: 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. [Para 55]
Doctrines - Doctrine of legitimate expectation - Limitation in
application of:
Held: 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. [Para 55]
Directions - The High Court's decision to apply a minimum cutoff for the viva voce frustrated the substantive legitimate expectation
of the petitioners - The decision of the High Court is legally untenable
- Whether the petitioners can be inducted into the Higher Judicial
Service:
Held: In terms of relief, it would be contrary to the public interest to
direct the induction of the petitioners into the Higher Judicial Service after
the lapse of more than six years - Candidates who were selected nearly six
years ago cannot be unseated - They were all qualifi ed and have been serving
the district judiciary of the state - Unseating them at this stage would be
contrary to public interest - To induct the petitioners would be to bring in
new candidates in preference to those who are holding judicial offi ce for a
length of time - To deprive the State and its citizens of the benefi t of these
experienced judicial offi cers at a senior position would not be in public
interest. [Para 55]
LIST OF CITATIONS AND OTHER REFERENCES
Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1: [2006]
3 SCR 953 - followed.
Food Corporation of India v. Kamdhenu Cattle Feed Industries
(1993) 1 SCC 71 : [1992] 2 Suppl. SCR 322; Union of India v. Hindustan
Development Corporation (1993) 3 SCC 499: [1993] 3 SCR 128; Punjab
Communication Ltd v. Union of India (1999) 4 SCC 727: [1999] 2 SCR 1033;
677
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND
OTHERS
Ram Pravesh Singh v. State of Bihar (2006) 8 SCC 381: [2006] 6 Suppl.
SCR 512; State of Jharkhand v. Brahmputra Metallics 2020 SCC OnLine
SC 968; SEBI v. Sunil Krishna Khaitan (2023) 2 SCC 643 - relied on.
Sivanandan C T v. High Court of Kerala (2018) 1 SCC 239: [2017]
13 SCR 226; Tej Prakash Pathak and others v. Rajesthan High Court and
others (2013) 4 SCC 540; K. Manjusree v. State of Andhra Pradesh and
another (2008) 3 SCC 512: [2008] 2 SCR 1025; State of Haryana v. Subash
Chander Marwaha (1974) 3 SCC 220: [1974] 1 SCR 165; State of Bihar v.
Bal Mukund Sah (2000) 4 SCC 640: [2000] 2 SCR 299; M P Oil Extraction
v. State of M P (1997) 7 SCC 592: [1997] 1 Suppl. SCR 671; National
Building Construction Corporation v. S Raghunathan (1998) 7 SCC 66 :
[1998] 1 Suppl. SCR 156; Bannari Amman Sugars Ltd v. CTO (2005) 1 SCC
625: [2004] 6 Suppl. SCR 264; Sethi Auto Service Station v. DDA (2009)
1 SCC 180 : [2008] 14 SCR 598; Monnet Ispat & Energy Ltd v. Union of
India (2012) 11 SCC 1: [2012] 7 SCR 644; P Suseela v. University Grants
Commission (2015) 8 SCC 129 : [2015] 5 SCR 643; Kerala State Beverages
(M&M) Corp Ltd. v. P P Suresh (2019) 9 SCC 710: [2019] 17 SCR 164;
State of Jharkhand v. Brahmputra Metallics 2020 SCC OnLine SC 968;
Union of India v. Hindustan Development Corp (1993) 3 SCC 499 : [1993]
3 SCR 128; State of Bihar v. Shyama Nandan Mishra, 2022 SCC OnLine
SC 554; NOIDA Entrepreneurs Association v. NOIDA (2011) 6 SCC 508
: [2011] 8 SCR 25; State of Bihar v. Shyama Nandan Mishra 2022 SCC
OnLine SC 554; S G Jaisinghani v. Union of India 1967 SCC OnLine SC
6; Bannari Amman Sugars Ltd v. CTO (2005) 1 SCC 625: [2004] 6 Suppl.
SCR 264; Union of India v. Lt. Col. P K Choudhary (2016) 4 SCC 236
: [2016] 2 SCR 426; State of Jharkhand v. Brahmputra Metallics 2020
SCC OnLine SC 968 - referred to.
Salemi v. Mackellar [1977] HCA 26; Schmidt v. Secretary of State
for Home Aff airs [1969] 2 WLR 337; O'Reilly v. Mackman [1983] 2 AC
237; Attorney General of Hong Kong v. Ng Yuen Shiu [1983] 2 WLR 735;
Council of Civil Service Unions v. Minister for the Civil Service [1985] AC
374; R v. North and East Devon Health Authority, ex parte Coughlan [2001]
QB 213; Nadarajah v. Secretary of State for the Home Department [2005]
EWCA Civ 1363; R v. Department of Education and Employment [2000] 1
WLR 1115; Paponette v. Attorney General of Trinidad and Tobago [2012]
678
SUPREME COURT REPORTS
[2023] 11 S.C.R.
1 AC 1; Regina (Bibi) v. Newham London Borough Council [2002] 1 WLR
237 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 229 of
2017.
(Under Article 32 of the Constitution of India)
With
Writ Petition (Civil) Nos. 379, 618 and 232 of 2017.
Appearances:
Rana Mukherjee, Niranjan Reddy, V. Chitambaresh, Rameshwar Singh
Malik, Sr. Advs., Dr. Ritu Bhardwaj, Mohan Kumar, Ms. Neetu Singh, Ms.
Asia Beg, Vivek Narayan Sharma, Mrs. Mahima Bhardwaj Kalucha, Dinesh
Sharma, Ajay Singh, Ms. Laksha Bhavnani, Adhiraj Wadhera, Rohit Sharma,
Devendra Singh, Chetan Garg, Biswajit Prasad, Ajay Vikram Singh, Mrs.
Priyanka Singh, Mrs. Garima Singh, Shubham Singh, Omkar, Pankaj Kumar,
Mrs. B. Sunita Rao, Ranjeet Kumar, Gunmaya S. Mann, S. Popli, Anant
Kumar, Bipin Kumar, Ms. Jaya Kiran, Ms. Jyoti Singh, Uday Praksh, Rajiv
Mehta, Ahanthem Henry, Ahanthem Rohen Singh, Vivek Kumar, Mohen
Singh, Ms. Priyanka, P. V. Dinesh, Ms. Oommen Anna A, Ms. Urvashi
Chauhan, Mrs. Haripriya Padmanabhan, Kuriakose Varghese, V. Shyamohan,
Shrutanjaya Bhardwaj, Ms. Isha Ghai, Akshat Gogna for M/s. Kmnp Law,
Sriram Parakkat, M.S. Vishnu Sankar, Koshy John, Sreenath S, Ms. Athira
G. Nair, Ms. Divya Jyoti Singh, Aditya Santosh for M/s. Lawfi c, Lakshmeesh
S. Kamath, Ms. Samriti Ahuja, Mrs. Sakshi Banga, Mrs. Chitra Parande,
Kaustubh Shukla, Ms. Nancy Shamim, C. Govind Venugopal, Prakash Ranjan
Nayak, Ashok Panigrahi, Sanjeev Kumar, Naik H.K., Ajay Amritraj, Vivek
Kumar, Nikilesh Ramachandran, Raghenth Basant, Ms. Liz Mathew, Ms.
Mallika Agarwal, Jitesh Malik, Abhaya Nath Das, Yogendra Kumar Verma,
Satish Kumar, Ms. Shraddha Deshmukh, Nikhil Singhvi, Bilal Ikram, Utkarsh
Kokcha, Rishabh Sancheti, Ms. Padma Priya, Anchit Bhandari, Suyash Jain,
Chirag Kalani, K. Paari Vendhan, Advs. for the Petitioners.
679
K.M. Nataraj, ASG, Dama Seshadri Naidu, Vijay Hansaria, Dr. K.P.
Kylasnatha Pillay, Sr. Advs., T. G. Narayanan Nair, Ramesh Babu M.R.,
Ms. Shivali Seshadri Naidu, Ms. Shivali Chaudhary, Pawanshree Agrawal,
Sunil Kumar Jain, Ms. Rashika Swarup, Gaurav Agrawal, P. I. Jose, James
P. Thomas, Ravi Sagar, Nikhil Goel, Ms. Naveen Goel, Kartik Kaushal,
Adhitya Koshy Roy, Ms. Sidhi Gupta, Maibam Nabaghanashyam Singh,
Mahesh Thakur, Shakti K Pattanaik, Ms. Diksha Rai, Ms. Ragini Pandey,
Rameshwar Prasad Goyal, Manish Goswami, C M Angadi, Ms. Deepanwita
Priyanka, Nishe Rajen Shonker, Mrs. Anu K Joy, Abraham C. Mathew, Alim
Anvar, Debojit Borkakati, Prashant Padmanabhan, P. A. Noor Muhamed,
Sunny Markose, Mohamad Shareef K.P., Mrs. Giff ara S., A. Nowfal, A.
Shukoor, Shereef Ka, Ms. Rashmi Singhania, Ranjith K. C., Ms. Niveditha
R. Menon, Aditya Verma, Lalit Kumar, Anil Kumar, Ranbir Singh Yadav, Ms.
Anzu. K. Varkey, N.P. Rakeesh Panicker, Ms. Mahesh Sharma, M. Gireesh
Kumar, Ankur S. Kulkarni, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
DR. DHANANJAYA Y CHANDRACHUD, CJI
Table of Contents
A.
Background .......................................................................3
B.
Submissions .......................................................................7
C.
Analysis ..............................................................................9
i. The decision of the High Court was ultra vires the

1961 Rules ..............................................................................9

ii. Legitimate Expectation ...................................................12

a. Doctrine of legitimate expectation under common law..13

b. Doctrine of legitimate expectation under Indian law .....16

c. Substantive Legitimate Expectation ...............................18

d. Consistency and predictability as aspects of

non-arbitrariness .............................................................26
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND
OTHERS
680
SUPREME COURT REPORTS
[2023] 11 S.C.R.
D. Application of the doctrine of legitimate expectation ........29

i. What has the High Court committed itself to? ...............30

ii. Whether the High Court has acted unlawfully in relation

to its commitment? .........................................................31

iii. What should this Court do? ............................................34
E. Conclusions ..........................................................................35
A. Background
1. On 14 November 2017, a Bench of two Judges of this Court
referred a batch of four petitions, which invoked the jurisdiction of this
Court under Article 32 of the Constitution, to the Constitution Bench
in Sivanandan C T v. High Court of Kerala1. Eleven petitioners are
before this Court, all of whom are candidates aspiring to be selected as
District Judges in the Higher Judicial Service of the State of Kerala.
2. In the State of Kerala, the Kerala State Higher Judicial Services
Special Rules 19612 came into force on 11 July 1961. These Rules have
been framed under Articles 233 and 309 of the Constitution. The 1961
Rules 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.
3. The dispute in the present batch of cases pertains to the third
category noted above. Rule 2(c) provides for the method of appointment
of the third category. Rule 2(c)(iii) stipulates that 25% of the posts in
the category shall be fi lled 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".
1
(2018) 1 SCC 239
2
"1961 Rules"
681
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
4. By a notifi cation dated 13 December 2012, the High Court
of Kerala prescribed the scheme for the Kerala Higher Judicial Service
Examination. The scheme as notifi ed by the High Court contained the
following stipulations pertaining to the examination:
(i)
The examination will comprise of a written examination
consisting of two papers carrying 150 marks each and a vivavoce carrying 50 marks with a total of 350 marks so assigned;
(ii)
While separate minimum marks were not prescribed for each
paper, general category candidates who secure at least 50% in
the aggregate and SC/ST candidates who secure at least 40%
in the aggregate for both the papers together would be qualifi ed
for viva-voce test;
(iii)
The viva-voce test would be conducted "in a thorough and
scientifi c manner" for a period ranging between 25 to 30 minutes
for each candidate;
(iv)
There shall be no cut off marks for the viva-voce; and
(v)
The merit list would be prepared on the basis of the aggregate
marks obtained both in the written examination and the vivavoce.
5. On 30 September 2015, a notifi cation was issued by the High Court
of Kerala by which applications were invited from qualifi ed candidates for
appointment as District and Sessions Judges in the Kerala State Higher
Judicial Services by direct recruitment from the Bar. Paragraph 5 of the
notifi cation provides for the mode of selection. Paragraph 5 stipulates that
the selection would be on the basis of a competitive examination consisting
of a written examination and a viva-voce. The total marks assigned for the
written examination were 300 comprising of two papers, each carrying
maximum of 150 marks. General candidates and candidates belonging to
the OBC category who secure 50% and the SC/ST candidates who secure
40% aggregate minimum marks for both the written papers together were to
be declared as qualifi ed for the viva-voce. The maximum marks prescribed
for the viva-voce were fi fty. Paragraph 5 stipulates that "the merit list
of successful candidates will be prepared on the basis of the total marks
obtained in the written examination and viva-voce."
682
SUPREME COURT REPORTS
[2023] 11 S.C.R.
6. Following the notifi cation which was issued by the High Court on
30 September 2015, the written test was conducted on 12 and 13 March
2016. On 17 December 2016, the notifi cation regarding candidates who had
qualifi ed in the written test came to be published. Following this, between 16
January and 24 January 2017, the viva-voce for all the qualifi ed candidates
was conducted.
7. On 27 February 2017, after the viva-voce was conducted, the
Administrative Committee of the High Court passed a resolution by which it
decided to apply the same minimum cut-off marks which were prescribed for
the written examination as a qualifying criterion in the viva-voce. In coming
to this conclusion, the Administrative Committee was of the view that
since appointments were being made to the Higher Judicial Service, it was
necessary to select candidates with a requisite personality and knowledge
which could be ensured by prescribing a cut-off for the viva-voce in terms
similar to the cut-off which was prescribed for the written examination.
On 6 March 2017, the Full Court of the High Court of Kerala approved
the resolution of the Administrative Committee. The fi nal merit list of the
successful candidates was also published on the same day.
8. 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 before this Court under Article 32
of the Constitution. The candidates who are before this Court are aggrieved
by the fact that as a result of the application of cut off marks in the vivavoce, they have been ousted from selection though they would rank higher
than many of the candidates who have been selected on the consideration
of the aggregate of marks in the written examination and the viva-voce.
This specifi c grievance was urged before this Court when notice was issued
particularly in relation to the three respondents, respondents 9, 11 and 12.
9. When the petition was taken up by a two-Judge Bench of this Court
on 14 November 2017, a reference was made to the Constitution Bench,
following an earlier reference made to the larger Bench in Tej Prakash
Pathak v. Rajasthan High Court3. While making a reference to the
Constitution Bench in the earlier decision, the principal issue which has been
3
(2013) 4 SCC 540
683
addressed is whether it is open in law after a selection process is instituted,
to change the rules of the game midstream. In that context, reliance was
placed on an earlier decision in K Manjusree v. State of Andhra Pradesh.4
The view in K Manjusree (supra) has been doubted on the ground that
the principle which has been laid down in that case would appear to run
contrary to an earlier decision in the State of Haryana v. Subash Chander
Marwaha.5 In the view that we are inclined to take in the present case, it does
not become necessary to rule on the broader constitutional issue on which a
reference has been made in Tej Prakash Pathak (supra). The reason why
we have come to this conclusion would be elaborated shortly hereinafter.
B. Submissions
10. During the course of the hearing, we have heard arguments on
behalf of the petitioners by Mr V Chitambaresh, senior counsel, Mr P V
Dinesh, Ms Haripriya Padmanabhan, Mr Raghen Basant and Mr Kuriakose
Verghese, counsel. Principally, the modalities which have been followed by
the High Court of Kerala for the selection of candidates have been assailed
on four grounds:
(i)
In specifying a cut off for the viva-voce, the High Court has acted
in a manner contrary to Rule 2(c)(iii) of the 1961 Rules;
(ii) The scheme which was notified by the High Court on 13
December 2012 had expressly provided that there shall be no
cut off for the purposes of the viva-voce;
(iii) According to the notifi cation, the only criteria for the purpose of
shortlisting candidates would be length of practice rendered by
candidates at the Bar which was to operate in a situation where
the number of candidates was found to be unusually large; and
(iv) The decision of the Full Court to prescribe a cut off for the
viva-voce was notifi ed much after the viva-voce was held, as
a consequence of which, candidates had no notice that such a
requirement would be introduced at the inception of the process.
4
(2008) 3 SCC 512
5
(1974) 3 SCC 220
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
684
SUPREME COURT REPORTS
[2023] 11 S.C.R.
11. Mr Dama Seshadri Naidu, senior counsel has appeared on behalf
of the High Court of Kerala, while Mr K P Kylasnatha Pillay, senior counsel
for respondent No 11 argued in support of the dismissal of the writ petitions
on the basis of the following grounds:
(i)
Article 233 of the Constitution vests a discretionary power with
the High Court in matters of selection of judicial offi cers which
cannot be curtailed by statutory rules;
(ii) The Selection Committee constituted by the High Court is an
expert body best placed to understand the suitability of the
candidates, the needs of the judicial institution, and the larger
public interest;
(iii) The decision of the High Court in specifying minimum cut-off
marks for the viva voce was applied across the board to select
suitable candidates and does not suff er from arbitrariness; and
(iv) Since the viva voce is an essential component to determine the
suitability of candidates, it is within the discretion of the High
Court to determine the weightage to be assigned to it.
C. Analysis
i. The decision of the High Court was contrary to the 1961 Rules
12. The 1961 Rules specify that 25% of the aggregate posts which are
to be fi lled in by direct recruitment from the Bar would comprise of the list
of candidates selected on the basis of the aggregate marks obtained in the
written examination and the viva-voce. These rules, as already noted earlier,
have been framed in exercise of the power conferred by Articles 233 and
309 of the Constitution. After the statutory rules were notifi ed on 11 July
1961, the High Court of Kerala published the scheme of the examination for
recruitment of members of the Bar to the Kerala Higher Judicial Service on
13 December 2012. The scheme so notifi ed specifi cally provides that there
shall be no cut off marks for the viva voce. The notifi cation which was issued
by the High Court on 30 September 2015 for the conduct of the ensuing
examination provided that the mode of selection would consist of two written
papers, each carrying 150 marks and that candidates from the general and
OBC categories who secured a minimum of 50% marks (relaxed to 40%
685
for SC/ST candidates) would qualify for the viva-voce. The notifi cation
spells out that the aggregate of the marks in the written examination and
the viva-voce would form the basis of drawing the merit list.
13. In the above backdrop, it is evident that when the process of
selection commenced, all the candidates were put on a notice of the fact
that: (i) the merit list would be drawn up on the basis of the aggregate marks
obtained in the written examination and viva-voce; (ii) candidates whose
marks were at least at the prescribed minimum in the written examination
would qualify for the viva-voce; and (iii) there was no cut off applicable in
respect of the marks to be obtained in the viva-voce while drawing up the
merit list in the aggregate.
14. The decision of the High Court to prescribe a cut-off for the
viva-voce examination was taken by the Administrative Committee on 27
February 2017 after the viva-voce was conducted between 16 and 24 January
2017. The process which has been adopted by the High Court suff ers from
several infi rmities. Firstly, the decision of the High Court was contrary to
Rule 2(c)(iii) which stipulated that the merit list would be drawn up on the
basis of the marks obtained in the aggregate in the written examination and
the viva-voce; secondly, the scheme which was notifi ed by the High Court
on 13 December 2012 clearly specifi ed that there would be no cut off marks
in respect of the viva-voce; thirdly, the notifi cation of the High Court dated
30 September 2015 clarifi ed that the process of short listing which would
be carried out would be only on the basis of the length of practice of the
members of the Bar, should the number of candidates be unduly large; and
fourthly, the decision to prescribe cut off marks for the viva-voce was taken
much after the viva-voce tests were conducted in the month of January 2017.
15. For the above reasons, we have come to the conclusion that the
broader constitutional issue which has been referred in Tej Prakash Pathak
(supra) would not merit decision on the facts of the present case. Clearly, the
decision which was taken by the High Court was ultra vires Rule 2(c)(iii)
as it stands. As a matter of fact, during the course of the hearing we have
been apprised of the fact that the Rules have been subsequently amended in
2017 so as to prescribe a cut off of 35% marks in the viva-voce examination
which however was not the prevailing legal position when the present
process of selection was initiated on 30 September 2015. The Administrative
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Committee of the High Court decided to impose a cut off for the viva-voce
examination actuated by the bona fi de reason of ensuring that candidates
with requisite personality assume judicial offi ce. However laudable that
approach of the Administrative Committee may have been, such a change
would be required to be brought in by a substantive amendment to the Rules
which came in much later as noticed above. This is not a case where the
rules or the scheme of the High Court were silent. Where the statutory rules
are silent, they can be supplemented in a manner consistent with the object
and spirit of the Rules by an administrative order.
16. In the present case, the statutory rules expressly provided that the
select list would be drawn up on the basis of the aggregate of marks obtained
in the written examination and the viva-voce. This was further elaborated in
the scheme of examination which prescribed that there would be no cut off
marks for the viva-voce. This position is also refl ected in the notifi cation of
the High Court dated 30 September 2015. In this backdrop, we have come
to the conclusion that the decision of the High Court suff ered from its being
ultra vires the 1961 Rules besides being manifestly arbitrary.
ii. Legitimate Expectation
17. Another important aspect that arises for our consideration in
these batch of petitions is whether the High Court's decision frustrates the
legitimate expectation of the petitioners. Article 233 of the Constitution
provides that the appointment of persons to be posted as district judges in
any state shall be made by the Governor of the State in consultation with the
High Court exercising jurisdiction in relation to such state. Further, Article
235 vests with the High Court the control over district courts including the
posting and promotion of district judges. The maintenance of effi ciency of
judicial administration is entirely within the control and jurisdiction of the
High Court.6 The Governor, in consultation with the High Court, prescribes
rules laying down the method of appointment and the necessary eligibility
criteria for the selection of suitable candidates for the post of district judges.
According to the 1961 Rules, the High Court of Kerala was designated as
the appointing authority and tasked with the responsibility of conducting
the written examination and the viva voce. The actions of the High Court,
6
State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640
687
in pursuance of its public duty, would give rise to the legitimate expectation
that the process of selection of candidates will be fair and non-arbitrary.
a. Doctrine of legitimate expectation under common law
18. The basis of the doctrine of legitimate expectation in public law is
founded on the principles of fairness and non-arbitrariness in government
dealings with individuals. It recognizes that a public authority's promise
or past conduct will give rise to a legitimate expectation. The doctrine is
premised on the notion that public authorities, while performing their public
duties, ought to honor their promises or past practices. The legitimacy of
an expectation can be inferred if it is rooted in law, custom, or established
procedure.7
19. The origin of the doctrine in the modern sense could be
authoritatively traced to the opinion of Lord Denning in Schmidt v.
Secretary of State for Home Aff airs.8 In that case, the Home Secretary
granted a limited permit to the petitioners to enter the United Kingdom for
the purposes of study at the College of Scientology. After the expiration of the
time period, the petitioners applied to the Home Secretary for an extension of
their permits. The Home Secretary refused to grant the extension. Although
the Court rejected the claim brought by the petitioners, Lord Denning
observed that the petitioner would have a legitimate expectation of being
allowed to stay for the permitted time. In such situation, it was observed
that the petitioner ought to have been given an opportunity of making a
representation if his permit was revoked before the expiration of the time
period. Lord Denning's conception of the doctrine of legitimate expectation
was a procedural protection - a legitimate expectation could not be denied
without providing an opportunity of hearing to the aff ected person.
20. In O'Reilly v. Mackman,9 the House of Lords was called upon to
decide the validity of the order passed by the Board of Visitors to impose
a penalty against the plaintiff s in breach of the prison rules and principles
of natural justice. Lord Diplock observed that the doctrine of legitimate
expectation gave the aff ected party a right to challenge the legality of the
7
Salemi v. Mackellar, [1977] HCA 26
8
[1969] 2 WLR 337
9
[1983] 2 AC 237
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adverse actions on the ground that the authority had acted beyond the
powers conferred upon it by the legislation including the failure to observe
the principles of natural justice. Lord Diplock reiterated the doctrine of
legitimate expectation in terms of the duty of public authorities to act fairly
in their dealings with individuals.
21. The doctrine of legitimate expectation received further impetus
in the decision of the Privy Council in Attorney General of Hong
Kong v. Ng Yuen Shiu.10 In that case, a senior immigration officer
announced that each illegal entrant from China would be interviewed
before passing deportation orders against them. The respondent, an
illegal entrant from China, was detained and removal orders were passed
against him without any opportunity of hearing. Therefore, the issue was
whether the respondent had a legitimate expectation of the grant of a
hearing before repatriation by the immigration officer. It was held that
a public authority is bound by its undertakings. Lord Fraser explained
the contours of legitimate expectations in the following terms:
"The expectations may be based upon some statement or
undertaking by, or on behalf of, the public authority which has
the duty of making the decision, if the authority has, through its
officers, acted in a way that would make it unfair or inconsistent
with good administration for him to be denied such an inquiry."
According to Lord Fraser's opinion, the primary justification
for the doctrine of legitimate expectation is that a public authority
should implement its promise in the interests of fairness and good
administration.
22. The doctrine of legitimate expectation was crystallized in
common law jurisprudence by Lord Diplock in the locus classicus,
Council of Civil Service Unions v. Minister for the Civil Service.11
Lord Diplock held that courts can exercise the power of judicial review
of administrative decisions in situations where such decision deprives
a person of some benefit or advantage which:
10 [1983] 2 WLR 735
11 [1985] AC 374
689
(i)
they had in the past been permitted by the decision-maker to
enjoy and which they can legitimately expect to be permitted to
continue until there has been communicated to them some rational
grounds for withdrawing it on which they have been given an
opportunity to comment; or
(ii) they have received assurance from the decision-maker that the
advantage or benefi t will not be withdrawn without giving them
an opportunity of advancing reasons for contending that the
advantage or benefi t should not be withdrawn.
23. The doctrine of legitimate expectation emerged as a common law
doctrine to guarantee procedural fairness and propriety in administrative
actions. Legitimate expectation was developed by the courts to require a
degree of procedural fairness by public authorities in their dealings with
individuals. Denial of an assured benefi t or advantage was accepted as a
ground to challenge the decision of a public authority.
b. Doctrine of legitimate expectation under Indian law
24. By the 1990s, the Indian courts incorporated the doctrine of
legitimate expectation in the context of procedural fairness and nonarbitrariness under Article 14 of the Constitution. In Food Corporation of
India v. Kamdhenu Cattle Feed Industries12, this Court held that public
authorities have a duty to use their powers for the purposes of public good.
This duty raises a legitimate expectation on the part of the citizens to be
treated in a fair and non-arbitrary manner in their interactions with the
state and its instrumentalities. This Court held that a decision taken by an
executive authority without considering the legitimate expectation of an
aff ected person may amount to an abuse of power:
"7. [...] To satisfy this requirement of non-arbitrariness in a State
action, it is, therefore, necessary to consider and give due weight to
the reasonable or legitimate expectations of the persons likely to be
aff ected by the decision or else that unfairness in the exercise of the
power may amount to an abuse or excess of power apart from aff ecting
the bona fi des of the decision in a given case. The decision so made
12 (1993) 1 SCC 71
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would be exposed to challenge on the ground of arbitrariness. Rule
of law does not completely eliminate discretion in the exercise of
power, as it is unrealistic, but provides for control of its exercise by
judicial review."
The court held that whether the expectation of a claimant is legitimate
or not is a question of fact which has to be decided after weighing the
claimant's expectation against the larger public interest. Thus, while dealing
with the claims of legitimate expectations, the Court has to necessarily
balance the legitimate expectation of a claimant against the larger public
interest.
25. In Union of India v. Hindustan Development Corporation,13 this
Court clarifi ed the contours of the doctrine of legitimate expectation in the
following terms: (i) legitimate expectation arises based on a representation
or past conduct of a public authority; (ii) legitimacy of an expectation can
be inferred only if it is founded on the sanction of law or custom or an
established procedure followed in regular or natural sequence; (iii) legitimate
expectation provides locus standi to a claimant for judicial review; (iv) the
doctrine is mostly confi ned to a right of a fair hearing before a decision and
does not give scope to claim relief straightaway; (v) the public authority
should justify the denial of a person's legitimate expectation by resorting
to overriding public interest; and (vi) the Courts cannot interfere with the
decision of an authority taken by way of policy or public interest unless
such decision amounts to an abuse of power.
26. In Hindustan Development Corporation (supra), this Court
cautioned against the use of the doctrine of legitimate expectation to safeguard
a substantive right. Yet, in a series of subsequent decisions, this Court
accepted that the doctrine of legitimate expectations has become a source of
both procedural and substantive rights.14 In Punjab Communication Ltd
v. Union of India15, this Court explained the diff erence between procedural
and substantive legitimate expectation in the following terms:
13 (1993) 3 SCC 499
14 M P Oil Extraction v. State of M P, (1997) 7 SCC 592; National Building Construction
Corporation v. S Raghunathan (1998) 7 SCC 66
15 (1999) 4 SCC 727
691
"The procedural part of it relates to a representation that a hearing or
other appropriate procedure will be aff orded before the decision is
made. The substantive part of the principle is that if a representation
is made that a benefi t of a substantive nature will be granted or if the
person is already in receipt of the benefi t that it will be continued and
not be substantially varied, then the same could be enforced."
A claim based on the doctrine of procedural legitimate expectation
arises where a claimant expects the public authority to follow a particular
procedure before taking a decision. This is in contradistinction to the
doctrine of substantive legitimate expectation where a claimant expects
conferral of a substantive benefi t based on the existing promise or practice
of the public authority. The doctrine of substantive legitimate expectation
has now been accepted as an integral part of both the common law as well
as Indian jurisprudence.
c. Substantive Legitimate Expectation
27. In R v. North and East Devon Health Authority, ex parte
Coughlan16, the Court of Appeal laid down the test of abuse of power
to determine whether a public authority can resile from a prima facie
legitimate expectation. It was held that frustration of a substantive legitimate
expectation by public authorities would be unfair and amount to abuse of
power. Importantly, it was held that abuse of power constitutes a ground for
the courts to exercise judicial review of executive actions.
28. In Nadarajah v. Secretary of State for the Home Department,17
the Court of Appeal added another facet to the doctrine of substantive
legitimate expectation by grounding it in the principles of good
administration. Importantly, the court identifi ed that consistency and probity
are tenets of a good administration. Laws LJ explained the principles
underlying the doctrine of legitimate expectation in the following terms:
"68. The search for principle surely starts with the theme that is current
through the legitimate expectation cases. It may be expressed thus.
Where a public authority has issued a promise or adopted a practice
16 [2001] QB 213
17 [2005] EWCA Civ 1363
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