# Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

- **Citation:** 2024 INSC 192
- **Court:** Supreme Court of India
- **Decided:** 2024-02-13
- **Case number:** Civil Appeal Nos.2179-2180 of 2024
- **Bench:** Dr. Dhananjaya Y Chandrachud, J B Pardiwala, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-kavita-kamboj-v-high-court-of-punjab-and-haryana-ors-37506
- **Pages:** 42

## Headnote

The issue for consideration was a challenge to a decision of the High
Court of Punjab & Haryana directing the State of Haryana to take
positive action to accept its recommendation vide communication
dated 23.02.2023, whereby the names of thirteen in-service judicial
officers were recommended for appointment by way of promotion
as Additional District and Sessions Judge.
The challenge before the High Court was inter alia to a decision
of the State of Haryana vide Letter dated 12.03.2023, whereby
the State had decided not to accept the aforesaid High Court
recommendation dated 23.02.2023, on the ground that the "settled
procedure" under Article 233 read with Article 309 of the Constitution
of India and the Haryana Superior Judicial Service Rules 2007
had not been followed.
Headnotes
Service Law - Promotion - Eligibility Criteria - Haryana
Superior Judicial Service Rules 2007 - Rule 6(1)(a) r/w. Rule
8 - Recommendation of the High Court that for a candidate
seeking promotion on the basis of merit-cum-seniority, an
aggregate of 50% marks for both, i.e. in the written test and in
the viva voce, would be required so as to render a candidate
eligible for promotion - Challenge to:
Held: The High Court was correct in prescribing that recruitment by
promotion to the Higher Judicial Service should have a minimum of
50% both in the written test as well as in the viva voce independently,
for those in-service candidates who were drawn for promotion in
the 65% promotion quota - This is because the candidate should
not just demonstrate the ability to reproduce their knowledge by
answering questions in the suitability test, but must also demonstrate
[2024] 2 S.C.R.
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors
both practical knowledge and the application of the substantive
law in the course of the interview - In-service candidates seeking
recruitment through promotions cannot be considered at par with
candidates seeking direct recruitment or with candidates seeking
accelerated promotion through a limited competitive test - The
three modes of recruitment have been reasonably classified and
different requirements have been prescribed for each - As such,
what may or may not have been held in respect of the viva voce
in direct recruitments may not necessarily apply to the viva voce
requirement in recruitments through promotions [Paras 65, 37, 41]
Eligibility criteria for Higher Judicial Services:
Held: The Higher Judicial Services require the selection of judicial
officers of mature personality and requisite professional experience
- In-service judicial officers are expected to have a greater familiarity
with the law and the procedure based on their experience as judicial
officers - While an objective written examination can be the best
gauge of the legal knowledge of a candidate, the viva voce offers
the best mode of assessing the overall personality of a candidate
- The purpose of the interview for officers in that class is to assess
the officer in terms of the ability to meet the duties required for
performing the role of an Additional District and Sessions Judge -
Consequently, there would be a reasonable and valid basis, if the
High Court were to do so, to impose a requirement of a minimum
eligibility or cut-off both in the written test and in the viva voce
separately. [Paras 42, 44]
Administrative directions can fill up the gaps and supplement
the Rules, when they are silent on a particular point:
Held: When the Rules under Article 309 hold the field, these Rules
have to be implemented - Where specific provisions are made in
the Rules framed under Article 309, it would not be open to the
High Court to issue administrative directions either in the form of
the Full Court Resolution or otherwise, that are at inconsistent with
the mandate of the Rules - On the other hand, in cases such as
the one at hand, where the Rules were silent, it is open to the
High Court to issue a Full Court Resolution - The Rules being
silent, it wa

## Text

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* Author
[2024] 2 S.C.R. 1136 : 2024 INSC 192
Dr Kavita Kamboj
v.
High Court of Punjab and Haryana & Ors
(Civil Appeal Nos 2179-2180 of 2024)
13 February 2024
[Dr. Dhananjaya Y Chandrachud,* CJI, J B Pardiwala
and Manoj Misra, JJ]
Issue for Consideration
The issue for consideration was a challenge to a decision of the High
Court of Punjab & Haryana directing the State of Haryana to take
positive action to accept its recommendation vide communication
dated 23.02.2023, whereby the names of thirteen in-service judicial
officers were recommended for appointment by way of promotion
as Additional District and Sessions Judge.
The challenge before the High Court was inter alia to a decision
of the State of Haryana vide Letter dated 12.03.2023, whereby
the State had decided not to accept the aforesaid High Court
recommendation dated 23.02.2023, on the ground that the "settled
procedure" under Article 233 read with Article 309 of the Constitution
of India and the Haryana Superior Judicial Service Rules 2007
had not been followed.
Headnotes
Service Law - Promotion - Eligibility Criteria - Haryana
Superior Judicial Service Rules 2007 - Rule 6(1)(a) r/w. Rule
8 - Recommendation of the High Court that for a candidate
seeking promotion on the basis of merit-cum-seniority, an
aggregate of 50% marks for both, i.e. in the written test and in
the viva voce, would be required so as to render a candidate
eligible for promotion - Challenge to:
Held: The High Court was correct in prescribing that recruitment by
promotion to the Higher Judicial Service should have a minimum of
50% both in the written test as well as in the viva voce independently,
for those in-service candidates who were drawn for promotion in
the 65% promotion quota - This is because the candidate should
not just demonstrate the ability to reproduce their knowledge by
answering questions in the suitability test, but must also demonstrate
[2024] 2 S.C.R.
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors
both practical knowledge and the application of the substantive
law in the course of the interview - In-service candidates seeking
recruitment through promotions cannot be considered at par with
candidates seeking direct recruitment or with candidates seeking
accelerated promotion through a limited competitive test - The
three modes of recruitment have been reasonably classified and
different requirements have been prescribed for each - As such,
what may or may not have been held in respect of the viva voce
in direct recruitments may not necessarily apply to the viva voce
requirement in recruitments through promotions [Paras 65, 37, 41]
Eligibility criteria for Higher Judicial Services:
Held: The Higher Judicial Services require the selection of judicial
officers of mature personality and requisite professional experience
- In-service judicial officers are expected to have a greater familiarity
with the law and the procedure based on their experience as judicial
officers - While an objective written examination can be the best
gauge of the legal knowledge of a candidate, the viva voce offers
the best mode of assessing the overall personality of a candidate
- The purpose of the interview for officers in that class is to assess
the officer in terms of the ability to meet the duties required for
performing the role of an Additional District and Sessions Judge -
Consequently, there would be a reasonable and valid basis, if the
High Court were to do so, to impose a requirement of a minimum
eligibility or cut-off both in the written test and in the viva voce
separately. [Paras 42, 44]
Administrative directions can fill up the gaps and supplement
the Rules, when they are silent on a particular point:
Held: When the Rules under Article 309 hold the field, these Rules
have to be implemented - Where specific provisions are made in
the Rules framed under Article 309, it would not be open to the
High Court to issue administrative directions either in the form of
the Full Court Resolution or otherwise, that are at inconsistent with
the mandate of the Rules - On the other hand, in cases such as
the one at hand, where the Rules were silent, it is open to the
High Court to issue a Full Court Resolution - The Rules being
silent, it was clearly open to the High Court to prescribe such a
criterion as it did in 2013, when the 50% cut-off was prescribed
on aggregate scores and also, in 2021, when the 50% cut-off was
prescribed on the written test scores and the viva voce separately.
[Paras 50, 52 and 65]
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Constitution of India - Articles 233, 234 and 235 - Appointments
to the District Judiciary to be in consultation with the High
Court and any other exercise de hors such consultation would
not be in accordance with the scheme of the Constitution:
Held: In matters of appointment of judicial officers, the opinion of
the High Court is not a mere formality because the High Court is
in the best position to know about the suitability of the candidates
to the post of District Judge - The Constitution, therefore, expects
the Governor to engage in constructive constitutional dialogue with
the High Court before appointing persons to the post of District
Judges under Article 233. [Para 62]
The State Government travelled beyond the remit of the consultation
with the High Court by referring the matter to the Union Government.
Any issue between the High Court and the State Government
should have been ironed out in the course of the consultative
process within the two entities - The State Government was bound
to consult only the High Court - Any other exercise de hors such
consultation would not be in accordance with the scheme of the
Constitution. [Para 66]
Doctrines - Doctrine of Legitimate Expectation - Twin Test:
Held: An individual who claims the benefit 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 a violation of Article 14. [Para 58]
Case Law Cited
All India Judges' Association v. Union of India, [2002]
2 SCR 712 : (2002) 4 SCC 247; All India Judges'
Association v. Union of India, (2010) 15 SCC 170;
Dheeraj Mor v. High Court of Delhi, [2020] 2 SCR 161 :
(2020) 7 SCC 401; Lila Dhar v. State of Rajasthan,
[1982] 1 SCR 320 : (1981) 4 SCC 159; Taniya Malik
v. Registrar General of the High Court of Delhi, [2018]
10 SCR 348 : (2018) 14 SCC 129 ; B V Sivaiah v.
K. Addanki Babu, [1998] 3 SCR 782 : (1998) 6 SCC
720 ; P K Ramachandra Iyer v. Union of India, [1984]
2 SCR 200 : (1984) 2 SCC 141; Sant Ram Sharma
v. State of Rajasthan, [1968] 1 SCR 111 : 1967 SCC
OnLine SC 16; State of Gujarat v Akhilesh C Bhargav,
[2024] 2 S.C.R.
1139
Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors
[1987] 3 SCR 1091 : (1987) 4 SCC 482; State of Uttar
Pradesh v. Chandra Mohan Nigam, [1978] 1 SCR 521 :
(1977) 4 SCC 345; K H Siraj v. High Court of Kerala,
[2006] Supp. 2 SCR 790 : (2006) 6 SCC 395; Chandra
Mohan v. State of Uttar Pradesh, [1967] 1 SCR 77;
Chandramouleshwar Prasad v. Patna High Court, [1970]
2 SCR 666 : (1969) 3 SCC 56; State of Haryana v Inder
Prakash Anand HCS, [1976] Supp. 1 SCR 603 : (1976)
2 SCC 977; State of Bihar v Bal Mukund Sah, [2000]
2 SCR 299 : (2000) 4 SCC 640 - relied on.
Sivanandan C T v High Court of Kerala, [2023] 11 SCR
674, 2023 SCC Online SC 994 - distinguished.
State of West Bengal v. Nripendra Nath Bagchi, [1966]
1 SCR 771 : 1965 SCC OnLine SC 22; High Court of
Punjab and Haryana v. State of Haryana, [1975] 3 SCR
365 : (1975) 1 SCC 843; High Court of Judicature for
Rajasthan v. PP Singh, [2003] 1 SCR 593 : (2003) 4
SCC 239 - referred to.
Books and Periodicals Cited
First National Judicial Pay Commission, 1999 (Shetty
Commission Report)
List of Acts
Haryana Superior Judicial Service Rules 2007; Constitution of India
List of Keywords
Promotion; Eligibility Criteria; Service Rules, Recruitment; District
Judiciary.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.2179-2180 of
2024
With
Civil Appeal Nos.2181-82, 2183, 2184-85 and 2186 of 2024
From the Judgment and Order dated 20.12.2023 of the High Court
of Punjab & Haryana at Chandigarh in CWP Nos.19775 and 26217
of 2023
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Appearances for Parties
Tushar Mehta, Solicitor General, Vikramjit Banerjee, A.S.G., Lokesh
Sinhal, Sr. A.A.G., B.K. Satija, A.A.G., Ms. Shristi Jain Goyal, D.A.G.,
P S Patwalia, Shyam Divan, Gopal Sankaranarayanan, Sr. Advs,,
Samar Vijay Singh, Kanu Agrawal, Siddhartha Sinha, Bharat Sood,
Ms. Sabarni Som, Nikunj Gupta, Udayaditya Arpith, Ms. Trisha
Chandran, Nishant Singh, Udayaditya Banerjee, Arpith Jacob
Varaprasad, Advs. for the Appellant.
Nidhesh Gupta, Rameshwar Singh Malik, Sr. Advs., Sidhant Awasthy,
Mrs. Eliza Bar, Siddhant Saroha, Manav Bhalla, Abhimanyu Tewari,
Jaspreet Singh Rai, Rohit Nagpal, Jitesh Malik, Jasdeep Singh
Dhillon, Mrs. Sukhdeep Kaur Rai, Mrs. Vasudha Gupta, Mrs. Vasudha
Nagpal, Linoy Varghese, Ravi Kumar, Ankur Singh, Shwetabh Kumar,
Shyamal Kumar, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Dr Dhananjaya Y Chandrachud, CJI
Table of Contents*
A.
Background of the present dispute ............................... 6
B.
Submissions ..................................................................... 13
C.
Analysis ............................................................................. 22
i.
All India Judges' Association ................................. 22
ii.
The Rules can be supplemented to fill in gaps .... 33
iii.
Sivanandan C T ........................................................ 37
iv.
Articles 233, 234 and 235 of the Constitution
of India ....................................................................... 41
D.
Conclusion ........................................................................ 48
1.
Permission to file the Special Leave Petitions granted.
2.
Leave granted.
3.
This batch of appeals has arisen from a judgment delivered by a
Division Bench of the High Court of Punjab and Haryana on 20
* Ed Note : Pagination as per original judgment.
[2024] 2 S.C.R.
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors
December 2023. The controversy that arises before this Court pertains
to the recommendations made by the High Court on its administrative
side for the appointment of thirteen in-service candidates as Additional
District and Sessions Judges. These candidates are seeking
recruitment to the post through promotions from the post of Senior
Civil Judges against the 65% promotional quota under the Haryana
Superior Judicial Service Rules 2007.1
4.
The Rules came into force on 10 January 2007 and regulate
recruitment and service conditions of persons for appointment to the
Haryana Superior Judicial Service. Part III of the Rules provides for
the method of recruitment. Rule 2(b) defines "direct recruit" to mean
a person who is appointed to the Service from the Bar. Likewise,
"promoted officer" is defined under Rule 2(i) to mean a person who
is appointed to the service by promotion from Haryana Civil Service
(Judicial Branch). Rule 5 provides that recruitment to the Service
shall be made by the Governor by:
(i)
promotion from amongst officers of the Haryana Civil Service
(Judicial Branch) in consultation with the High Court; and
(ii)
direct recruitment from amongst eligible advocates on the
recommendations of the High Court on the basis of a written
and viva voce test conducted by the High Court.
5.
In terms of Rule 62, recruitment to the service is to be made from
three sources:
1
"Rules"
2
"6 (1) Recruitment to the Service shall be made,-
(a) 65 percent by promotion from amongst the Civil Judges (Senior Division)/Chief Judicial Magistrates/
Additional Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a
suitability test;
Provided that no person shall be promoted to the Service who is less than thirty- five years of age;
(b) 10 percent by promotion strictly on the basis of merit through limited competitive examination of
Civil Judges (Senior Division) having not less than five years qualifying service as Civil Judges (Senior
Division)/Chief Judicial Magistrates/Additional Civil Judges (Senior Division); and who are not less than
thirty five years of age on the last date fixed for submission of applications for taking up the limited
competitive examinations:
Provided that if candidates are not available for 10 percent seats, or are not able to qualify in the examination then vacant posts shall to be filled up by regular promotion in accordance with clause (a); and
(c) 25 percent of the posts shall be filled by direct recruitment from amongst the eligible advocates on
the basis of the written and viva voce test, conducted by the High Court.
(2) The first and second post would go to category (a) (by promotion on the basis of merit-cum-seniority), third post would go to category (c) (direct recruitment from the bar), and fourth post would go to
category (b) (by limited competitive examination) of rule 6, and so on."
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(i)
65% by promotion from amongst the Civil Judges (Senior
Division)/Chief Judicial Magistrates/Additional Civil Judges
(Senior Division) "on the basis of principle of merit-cum-seniority
and passing a suitability test";
(ii)
10% by promotion "strictly on the basis of merit" through a
limited competitive examination from amongst persons holding
the feeder posts; and
(iii) 25% on the basis of direct recruitment from amongst eligible
advocates on the basis of a written and viva voce test conducted
by the High Court.
6.
Rule 7 prescribes the procedure for conducting direct recruitment.
Rule 8 provides for the procedure for promotion for assessing and
testing the merit and suitability of the judicial officers. Rule 9 provides
for a limited competitive examination for the promotion of members
of the Haryana Civil Service (Judicial Branch) pursuant to Rule 6(b).
Rules 7, 8 and 9 are set out below:
"Procedure for direct recruitment.
7. The High Court shall before making recommendations
to the Governor invite applications by advertisement and
may require the applicants to give such particulars as
it may specify and may further hold written examination
and viva voce test for recruitment in terms of rule 6(c)
above and the maximum marks shall be in the following
manner:-
(i)
Written Test

750 marks
(ii)
Viva Voce

250 marks
Procedure for promotion.
8. Procedure for promotion for assessing and testing the
merit and the suitability of a member of the Haryana Civil
Service (Judicial Branch) for promotion under clause (a)
of sub-rule (1) of rule 6, the High Court may-
(i)
hold a written objective test of 75 marks and viva
voce of 25 marks in order to ascertain and examine
the legal knowledge and efficiency in legal field;
[2024] 2 S.C.R.
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors
(ii)
take into consideration Annual Confidential Reports
of the preceding five years of the officer concerned:
Provided that any officer having grading as C (integrity
doubtful) in any year shall not be eligible to be considered
for promotion.
Limited competitive examination.
9. The High Court shall hold a limited written competitive
examination for promotion of members of the Haryana
Civil Service (Judicial Branch) as per rule 6(b) and the
maximum marks shall be in the following manner:
(i)
Written Examination

600 marks
(ii)
Assessment of Record

150 marks
(iii) Viva Voce

250 marks
Provided that the High Court shall in addition to the above
competitive examination take into consideration any of the
criteria as specified in rule 8 above:
Provided further that any officer having grading as C
(integrity doubtful) in any year, shall not be eligible to
appear in the limited competitive examination."
7.
In terms of Rule 8, the High Court is required to hold a written
objective test comprising 75 marks and a viva voce comprising 25
marks to ascertain and examine the legal knowledge and efficiency
of the candidates in the legal field. In addition, the High Court is
required to take into consideration the Annual Confidential Reports3
of the preceding five years of each officer under consideration.
A.
Background of the present dispute
8.
On 29 January 2013, the High Court, on its administrative side,
resolved that an aggregate of 50% marks in the written test and in
the viva voce would be required so as to render a candidate eligible
for promotion. The relevant part of the resolution is extracted below:
"i) In terms of Rule 8(a) of the Haryana Superior Judicial
Service Rules, 2007, the suitability test shall consist
3
 "ACRs"
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of written objective test of 75 marks and viva voce of
25 marks so as to assess legal knowledge and the
efficiency in legal field for discharging higher duties and
responsibilities. Obtaining of 50% marks in aggregate of
the written test and in viva voce would make a candidate
eligible for promotion."
9.
On 11 November 2021, a meeting of the Recruitment and Promotion
Committee4 overseeing the Superior Judicial Service was held. The
Minutes of the Meeting adverted to Rules 6 and 8 of the Rules and
a corresponding provision contained in the Punjab Superior Judicial
Service Rules 2007. Both sets of Rules were amended by the States
of Haryana and Punjab in order to bring uniformity in promotions
to the Superior Judicial Service. In both the States, the Committee,
inter alia, resolved that:
"ii. In terms of Rule 7(3)(a) of the Punjab Superior Judicial
Service Rules, 2007 and Rule 6(1)(a) of Haryana Superior
Judicial Service Rules, 2007, the suitability test shall consist
of written objective test of 75 marks and viva voce of 25
marks so as to assess legal knowledge and efficiency in
legal field for discharging higher duties and responsibilities.
Securing, 50% marks in the written test and 50% marks
in Viva voce individually would make a candidate eligible
for promotion."
10. As a result of the above Resolution, the Committee decided that
in order to be eligible for promotion, a candidate must secure 50%
marks in the written test and 50% marks in the viva voce. In other
words, while under the earlier Resolution of the Full Court dated
29 January 2013, a candidate was required to obtain at least 50%
marks in the written test and viva voce combined, the proposal of
the Recruitment and Promotion Committee of 11 November 2021
stipulated that a candidate must obtain at least 50% marks in the
written test and at least 50% in the viva voce. This Resolution of
the Committee was approved by the Full Court at a meeting which
was held on 30 November 2021.
11. At the same time, it must also be noted that the Committee had
proposed certain modifications in the benchmark for assessing the
4
 "Committee"
[2024] 2 S.C.R.
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors
ACRs of candidates under Rule 8. The Full Court, while deliberating
on the recommendations of the Committee, resolved that:
"...the report dated 11.11.2021 of Hon'ble Recruitment
and Promotion Committee (Superior Judicial Service) be
accepted with modification in para No. iii of the "Benchmark
of the ACRs as per Rule 8". After modification, the said
para be read as under:-
"(iii)(a) A candidate should have obtained at least four
"B+Good" or above grading in the Annual Confidential
Reports in the preceding five years and
(b) The candidate should not be having grading as C
(integrity doubtful) in any year.
Provided that for the purpose of assessing the benchmark,
the ACRs of a candidate, yet to be approved by the Hon'ble
Full court, would also be considered but his result would
be kept in a sealed cover, subject to the final decision of
the Hon'ble Full Court."
12. The Full Court also resolved that in order to settle the issue in a
comprehensive manner the necessity, if any, to amend the Rules
should be examined by the Committee overseeing the Superior
Judicial Service and the Rule Committee.
13. Following the above resolution, the two committees convened on 11
February 2022. The Minutes of the Meeting of the two committees
reflect the following decision:
"Re:- Consideration of matter qua amendment in Rule 8 of
Punjab Superior Judicial Service Rules, 2007 and Rule 8
of Haryana Superior Judicial Service Rules, 2007 in view
of the report dated 11.11.2021 of the Hon'ble Recruitment
and Promotion Committee (Superior Judicial Service) as
well as modification in para no. (iii) of the 'Benchmark of
the ACRs as per Rule 8', by the Hon'ble Full Court.
Meeting note perused. After deliberating upon the matter at
length, this Committee recommends that the word 'and' be
inserted at the end of sub-rule (I) and before sub-rule (ii) of
Rule 8 of Haryana Superior Judicial Service Rules 2007.
This Committee also recommends that existing proviso
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to Rule 8 of Punjab Superior Judicial Service Rules 2007
as well as to Rule 8 of Haryana Superior Judicial Service
Rules 2007 be substituted as under:-
"Provided that an officer with an entry of integrity doubtful
in any year shall not be eligible to be considered for
promotion."
This Committee has also perused Rule 9 of Punjab Superior
Judicial Service Rules 2007 and Rule 9 of Haryana Superior
Judicial Service Rules 2007 and recommends that existing
second proviso to Rule 9 of Punjab Superior Judicial
Service Rules 2007 and to Rule 9 of Haryana Superior
Judicial Services Rules 2007 be substituted as under:-
"Provided further that an officer with an entry of Integrity
doubtful in any year shall not be eligible to appear in the
said examination.''
The matter be referred to the Hon'ble Full Court for approval."
14. On 24 August 2022, the process of filling up vacancies for the post
of Additional District and Sessions Judges from amongst Civil Judges
(Senior Division)/Chief Judicial Magistrates/Additional Civil Judges
(Senior Division) was initiated and a communication was accordingly
addressed to thirty-nine candidates. The High Court conducted a
written test which was followed by a viva voce. On 23 February
2023, the Registrar (Judicial) addressed a communication to the
State Government recommending the names of thirteen judicial
officers for appointment by way of promotion as Additional District
and Sessions Judges.
15. On 2 March 2023, a communication was addressed by the Chief
Secretary to the Government of Haryana to the Registrar (Judicial)
seeking a "justification/clarification" in regard to certain judicial officers
of the 2007, 2009 and 2010 batches on the ground that they appeared
to be senior than the last of the thirteen recommended officers. The
communication noted that in spite of seniority, these judicial officers
were not recommended for promotions. The High Court was also
called upon to clarify "the criteria of merit and suitability test, on the
basis of which principle of merit-cum-seniority has been affected (sic)
and names of officers senior to the recommended officers have not
been recommended".
[2024] 2 S.C.R.
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors
16. The High Court of Punjab and Haryana responded to the
communication of the State Government on 22 March 2023, indicating
that the appointment to the thirteen posts of Additional District and
Sessions Judges which was initiated by way of promotion was
sought to be made strictly in terms of Rule 6(1)(a) of the Rules which
prescribes merit-cum-seniority read with the criteria laid down by the
High Court for assessing the suitability of a candidate for appointment.
The High Court further stated that all appointments and promotions
concerning the judiciary fall under the control and supervision of the
High Court and since the recommendations have been approved by
the Full Court, they were binding on the State Government under
Article 235 of the Constitution.
17. On 29 March 2023, an advocate by the name of Mr Prem Pal
submitted a representation to the Chief Secretary of Haryana seeking
the intervention of the State Government in order to either reject the
recommendations of the High Court or to initiate a fresh process of
consultation. The representation stated that the recommendations of
the High Court were not binding since the requirement of obtaining
50% marks in the viva voce had not been communicated to the
candidates and no minimum cut-off in the viva voce had been
prescribed. It is also stated that no criteria had been adopted for
conducting the suitability test.
18. Following the receipt of this representation, the State Government
sought the opinion of the Union Ministry of Law and Justice. The
Union Ministry of Law and Justice tendered its opinion on 26 July
2023, stating that Article 233 of the Constitution which deals with
appointments, postings and promotions of District Judges envisages
consultation between the State Government and the High Court.
The opinion of the Union Ministry was that the modification of the
suitability criteria in terms of the Resolution dated 30 November 2021
of the High Court lacked the element of consultation with the State
Government and, therefore, did not have a binding effect.
19. A writ petition under Articles 226 and 227 was filed by certain
candidates working as Civil Judges (Senior Division) and Chief
Judicial Magistrates in the State of Haryana for seeking a mandamus
to the State Government to conclude the process of selection and to
notify the appointments by way of promotion of candidates selected
to the posts of Additional District and Sessions Judge.
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20. The State of Haryana addressed a communication on 12 September
2023 to the Registrar General of the High Court stating that the
State Government had decided not to accept the recommendations
for promoting thirteen judicial officers on the ground that the "settled
procedure" under Article 233 read with Article 309 and the Rules of
2007 had not been followed. The State of Haryana sought to support
its decision on the basis of the legal opinion which was tendered on
26 July 2023 by the Union Ministry of Law and Justice. The relevant
extract of the communication reads as follows:
"Therefore, keeping in view the position explained above,
the State Government has decided not to accept the present
recommendation for promotion of 13 Haryana Civil Service
(Judicial Branch) Officers to the post of Additional District
and Sessions Judges (ADSJ), as the State Government
as well as the Central Government (Ministry of Law and
Justice) have observed that the settled procedure under
Article 233 read with Article 309 of the Constitution of India,
i.e., Haryana Superior Judicial Service Rules, 2007 has not
been followed while sending names to the Government
for promotion. Hence, you are requested to send revised
recommendations by following set procedures as per law."
21. The petition before the High Court was amended so as to challenge
the letter dated 12 September 2023. Other writ petitions were filed
before the High Court by unsuccessful candidates, inter alia, seeking
an order restraining the State from accepting the recommendations
made by the High Court and for quashing the Resolution of 30
November 2021, along with the recommendations for promotion of
the petitioners. These candidates who had not been selected also
sought a direction to the High Court, on its administrative side, to
recommend candidates for promotion to the post of the District
and Sessions Judges under Rule 6(1)(a) without observing the
requirement of obtaining 50% marks each in the written examination
and in the viva voce. The High Court, by its impugned judgment
dated 20 December 2023, disposed of the batch of petitions. The
High Court directed the State of Haryana to take positive action to
accept its recommendations which were made on 23 February 2023.
22. In the batch of appeals which have arisen before this Court, we
have heard Mr P S Patwalia, Mr Shyan Divan and Mr Gopal
[2024] 2 S.C.R.
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors
Sankaranarayanan, senior counsel, who have appeared on behalf of
the candidates who have not been recommended for appointment by
the High Court. Mr Tushar Mehta, Solicitor General, has appeared on
behalf of the State of Haryana in urging that the State Government
was justified in rejecting the recommendations of the High Court. Mr
Nidhesh Gupta, senior counsel, appears on behalf of the High Court.
Mr Rameshwar Singh Malik, senior counsel, has supported the plea
of the High Court, while appearing on behalf of the candidates who
have been recommended for appointment.
B.
Submissions
23. Mr P S Patwalia, senior counsel, has basically urged the following
submissions:
(i)
In terms of the judgment of this Court in All India Judges'
Association v. Union of India5, the suitability of candidates for
promotion as District Judges from amongst in-service candidates
is required to be adjudged. Apart from the requirement of
conducting a suitability test and a viva voce, Rule 6(1)(b) read
with Rule 8 requires the ACRs of the preceding five years to be
taken into consideration. The proforma of the ACRs contains an
exhaustive elaboration of the criteria which are to be borne in
mind while assessing a candidate. In other words, the suitability
of a candidate has to be assessed on the basis of the track
record, as reflected in the ACRs;
(ii)
In the above backdrop, the Resolution of the Full Court dated 30
November 2021 which prescribed the requirement of obtaining
50% as a condition of eligibility in the suitability test and in the
viva voce separately, is an evident act of discrimination against
candidates seeking promotions in the 65% quota, compared to
those seeking in-service promotions in the 10% quota. There is
no requirement of obtaining the minimum cut-off individually in
the suitability test and in the viva voce when appointments are
made of inservice candidates through the limited competitive
examination. There is no rational justification for the High
Court to lay down a minimum cut-off of the nature which has
been prescribed by the resolution dated 30 November 2021
5
[2002] 2 SCR 712 : (2002) 4 SCC 247
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only for candidates seeking promotion in the 65% quota while
there is no such requirement in the 10% quota for the limited
competitive examination;
(iii) The element of discrimination is evident from the fact that
no such cut-off as a condition of eligibility is prescribed for
candidates who seek direct recruitment as Additional District
and Sessions Judges; and
(iv) The imposition of a cut-off as a condition of eligibility prescribing
a minimum of 50% of marks in the viva voce was disclosed,
for the first time, in a response to a query under the Right
to Information Act 2005 on 28 March 2023. Consequently,
candidates were completely in the dark about the imposition
of such a requirement as a condition of eligibility before the
disclosure. Consequently, the High Court has acted with
arbitrariness in recommending the appointments.
24. Mr Shyam Divan, senior counsel, submitted that:
(i)
Candidates drawn for promotion in the 65% promotion quota
and 10% from the in-service candidates appearing for a limited
competitive examination are from the same pool. Consequently,
a minimum cut-off cannot be logically justified for the 65%
promotion quota when there is no such norm for the 10%, which
is filled up on the basis of the limited competitive examination;
(ii)
Rule 19 empowers the State Government to make regulations
not inconsistent with the Rules to provide for all matters for which
provision is necessary or expedient for the purpose of giving
effect to the Rules. In the present case, there was a longstanding
practice, following the earlier resolution of the Full Court dated 29
January 2013 of requiring a cut-off of 50% overall on the basis
of the combined marks which were obtained in the written test
and in the interview. A departure from a practice which had held
the field for such a long period of time could have only been
made either by amending the Rules or by the exercise of power
under Rule 19 by the State Government to make regulations;
(iii) The principles of fairness and good governance which have
been laid down in the judgment of the Constitution Bench of
[2024] 2 S.C.R.
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors
this Court in Sivanandan C T v High Court of Kerala6 apply
independent of prejudice. Where a breach of the principles of
natural justice is alleged for a failure to provide a hearing, an
additional layer has been provided in decisions of this Court to
the effect that such a breach will not necessarily invalidate the
action in the absence of prejudice to the candidates. While a
violation of the principles of natural justice may not be fatal in
the absence of prejudice, in the present case, the candidates
who have failed to be selected rely on an independent principle
of administrative law which requires fairness in governance;
(iv) In any event, this Court may scrutinize the marksheets, for the
purpose of analyzing the marks which were awarded in the
course of the viva voce to determine as to whether there is an
element of prejudice in the award of marks; and
(v)
Based on the longstanding practice in the present case,
all candidates were under a legitimate expectation of the
continuance of the norms which were prescribed in the
Resolution of the Full Court dated 29 January 2013 and any
alteration of the position without due notice to the candidates
has resulted in substantial injustice.
25. Mr Gopal Sankaranarayanan, senior counsel urged that:
(i)
The absence of notice to candidates about the alteration in the
criteria of eligibility results in a failure to satisfy the norms of
consistency and predictability;
(ii)
The requirement of obtaining minimum qualifying marks in the
viva voce was introduced for the first time by the Resolution
dated 30 November 2021 of which candidates had no notice;
(iii) In paragraph 10.97 of its recommendations, the Shetty
Commission had stated that in matters of direct recruitment,
it was not inclined to impose a minimum cut-off in the viva
voce in order to obviate arbitrariness in the process. Though
the recommendation deals with direct recruitment, there is no
rational reason to exclude it in respect of the process which
is followed in promoting in-service candidates in the 65%
promotion quota; and
6
[2023] 11 SCR 674 : 2023 SCC Online SC 994
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(iv) On 28 February 2023, this Court was informed of there being
38 vacancies in the Superior Judicial Service in Haryana.
The High Court has made recommendations for appointing
13 candidates. This indicates the existence of a substantial
number of vacancies. Consequently, public interest would not
necessarily be subserved by affirming the view which has been
taken by the High Court, both on its administrative side and
on the judicial side.
26. Mr Tushar Mehta, Solicitor General submitted that:
(i)
Bearing in mind the principles which are incorporated in Articles
233, 234 and 235 of the Constitution, the criteria for selection
of District Judges should be fixed in consultation with the State
Government;
(ii)
A collaborative exercise must be followed by the two organs of
the State - the Judiciary and the Executive;
(iii) There is an element of subjectivity and arbitrariness implicit in
laying down minimum marks for the interview process since
a candidate who has otherwise obtained high marks in the
suitability test may be excluded for failure to meet the cut-off
in the viva voce;
(iv) Article 233 would encompass the criteria for selection, whether
by a rule or by a resolution. Hence, the High Court, while making
a modification to its own Resolution, ought to have consulted
the State Government; and
(v)
The Government was not informed by the High Court of the
change in the criteria requiring a minimum of 50% marks in
both the suitability test and in the viva voce. On the other hand,
where an amendment of the Rules was sought to be effected,
the High Court has moved the State Government.
27. Mr Nidhesh Gupta, senior counsel appearing on behalf of the High
Court, in support of the decision which was taken on the administrative
side and ultimately as affirmed in the impugned judgment of the
Division Bench, submitted:
(i)
Properly construed, Rule 8 of the Rules provides the modalities
for testing the merit and suitability of the members of the Judicial
Branch for promotion under clause (a) of Rule 6(1). The purpose
[2024] 2 S.C.R.
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Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors
of conducting the written test and the viva voce is to ascertain
and examine the knowledge and efficiency of the officer under
consideration in law;
(ii)
Where the Rules are silent in regard to the details in the
implementation process, it is a settled principle of law that they
can be supplemented by administrative instructions;
(iii) The Rules, in the present case, being silent on the minimum
qualifying marks required to be obtained in the written test and
the viva voce, the administrative instructions which were issued
by the High Court do not involve any amendment of a rule;
(iv) As a matter of fact, the Full Court Resolution dated 29 January
2013 was issued in terms of the administrative power which is
vested in the High Court in regard to the appointment of District
Judges under Article 233 and in relation to the control of the
High Court over the District Judiciary under Article 235 and the
High Court has invoked the very same power while modifying
the terms of the earlier resolution on 30 November 2021;
(v)
The plea of discrimination as between the requirements for
direct recruits, the in-service candidates in a limited departmental
examination and the promotional quota for in-service candidates
has no valid basis in law. All three categories are distinct and
constitute valid classifications;
(vi) The decision of this Court in All India Judges' Association (supra)
distinguishes between all the three categories for appointment to
the Higher Judicial Service. This distinction is exemplified by the
Rules in question. For the promotional quota of 65%, the written
test consists only of multiplechoice questions totaling to 75 marks,
each candidate being given four options for every question. In the
matter of direct recruitment, the written test consists of five papers
totaling 750 marks comprising of three papers in law, each of 200
marks, a language paper of 100 marks and a general knowledge
paper of 50 marks. In the limited competitive examination, the
written examination has a weightage of 600 marks. As opposed
to the detailed examination which is expected of candidates for
direct recruitment and in the limited competitive examination,
the in-service candidates who avail of the promotional quota of
65% have to appear for a suitability test of a different nature and
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character. Consequently, all the three avenues for appointment
to the Higher Judicial service are distinct and the High court was
justified in imposing a minimum eligibility requirement of 50% in
the written test and the viva voce independently;
(vii) Interviews in the present case were conducted by six of the
senior-most Judges of the High Court, including the Chief
Justice and there is no allegation of mala fides or an attribution
of illegality to the interview. Marks in the written examination
were disclosed only after the final results were declared.