Altering Rules on Appointment to Public Posts | Day 1: Kerala

Altering Rules on Appointment to Public Posts

Judges: D.Y. Chandrachud CJI, P.S. Narasimha J, Hrishikesh Roy J, Pankaj Mithal J, Manoj Misra J

Today, a CJI D.Y. Chandrachud led Constitution Bench heard a batch of petitions challenging the alterations to the rules of appointment to public posts in various States. Determined to use the Court’s time judiciously, the Chief took note of all the petitions tagged to the case and decided to take them up State-wise. 

The Bench commenced the proceedings by hearing the petitioners aggrieved by the Kerala High Court Administrative Tribunal’s February 27th, 2017 resolution. 

This resolution imposed a cut-off on the viva interview in its February 27th, 2017 Resolution. The cut-off was imposed for the selection process of District and Sessions Judges in the State. 

The batch of petitions (pertaining to the Kerala High Court) were tagged with the lead petition in the present case (Tej Prakash, 2013) and referred by a Division Bench of the Supreme Court to a larger bench on November 14th, 2017.


The Kerala State Higher Judicial Services Special Rules, 1961 (the Rules) were drafted under Articles 223 and 309 of the Constitution. They provide for the appointment of judicial officers in three categories. One of the categories is District and Sessions Judges. 

Rule 2(c) provides for the appointments of Districts and Sessions Judges and stipulates that 25% of the recruitment shall be done directly on the basis of a written examination and viva conducted by the Kerala High Court. 

On December 13th, 2012 the High Court prescribed a scheme for the examination. This scheme stated that the written exam comprised two papers worth 150 marks each. The viva was worth 50 marks. To qualify for the oral round, candidates had to score at least 50% (for general categories) or 40% (for reserved categories) in the written papers. The scheme stated that there was no minimum marks requirement for the oral round. 

On September 30th, 2015, the Kerala High Court issued a notification inviting applications for the appointment of District and Sessions Judges. The selection would be based on a merit list after receiving the aggregate score of the candidates in the written exam as well as the viva.  

Written exams were conducted on December 12th and 13th, 2016 and the notification of the qualifying candidates was declared on December 17th, 2016. The viva examination was conducted between January 16th to 24th, 2017. 

Curiously, on February 27th, 2017, after the completion of the exams, the Administrative Committee of the High Court passed a resolution that candidates had to score a minimum of 40% of the marks in the viva round as well. On March 6th, 2017, this resolution was approved by the High Court. 

As a result, only 3 candidates qualified the selection process and were appointed. 

The disqualified candidates approached the Supreme Court through a writ petition in April 2017. A Divisional Bench of the Supreme Court tagged it to the present case and referred it to a larger bench in November 2017.

Petitioners: The High Court Administrative Committee’s Resolution is Impermissible

Advocate P.V. Dinesh opened the day’s arguments on behalf of 11 petitioners who aspired to be District and Sessions Judges in Kerala. They appeared for the Kerala District Judge selection exams in December 2016. They were disqualified from the process owing to the resolution by the Administrative Committee of the Kerala High Court on February 27th, 2017. 

He argued that the resolution was wrong as it came after the viva was completed. This was impermissible as it disqualified many deserving candidates who had a higher aggregate score than some of the selected candidates.

Senior Advocate V. Chitambaresh also informed the Bench the scheme of examination specifically stated that there would be no cut-off for the viva round. Further, it specified that in case of a large number of applicants, the High Court could shortlist candidates based on one criterion only—the number of years at the Bar. The resolution was contrary to both these rules and was therefore wrong. 

Kerala High Court: The Administrative Committee’s Resolution was Essential to Ensure Efficacy of Candidates

Sr. Adv. Seshadri Naidu appearing for the Kerala High Court stated that the Administrative Committee had to ensure that only worthy candidates were appointed as judges. Many candidates do not have any practical experience at the Bar, and clear the written examination by training at coaching centres and memorising answers. Therefore, in order to ensure that only the best of them were selected, it was crucial to impose a minimum marks criteria for the oral round as well. 

The Bench however was quick to point out that the notification of the High Court already specified that when there were many candidates, they could be filtered on the basis of their years of experience at the Bar. 

Moreover, the appropriate way to make any change in the rules was to notify it prior to the examination. 

The Constitutional Questions in Tej Prakash Patak Need Not Be Answered Here

Chief Justice D.Y. Chandrachud pointed out that the legal question in Tej Prakash (the lead case) concerned ‘changing the rules of the game’ in a selection process when the process is still underway. The present batch of petitions concerns changing of the rules after the process was completed. Therefore, there was no need to answer the questions raised in the lead case here. 

Bench: The High Court Committee’s Resolution Was Wrong

The Bench concluded that the Administrative Committee was wrong in imposing a cut-off percentage for the viva round for four reasons. 

First, the imposition was contrary to Rule 2 (c)(3) of 1961 Rules. Second, the examination schedule notified by the High Court specifically barred imposing a cut-off on the viva. Third, according to the notification, the only criteria for consideration of a large number of applicants must be the years of practice at the Bar. Lastly, the decision to impose a cut-off for the viva came after the viva was already conducted in 2017. 

The Bench’s Dilemma: What is the Appropriate Relief?

The Court deliberated upon what relief could be granted to the petitioners in the present case. They could not be reinstated in place of the previously appointed candidates. Over six years had passed since the selection and appointment of candidates. They had served as judicial officers and had gained considerable experience and seniority during their service. Removing them was not an option as it would adversely affect their careers. 

On the other hand, the petitioners could also not be given posts going forward as it would diminish the opportunities of future judicial aspirants. 

Ultimately, the Bench passed an order stating that the petitioners disqualified due to the 2017 resolution’s change in the rule would not be negatively affected by their disqualification going forward and dismissed the four petitions pertaining to the Kerala High Court. Typically, a disqualification in one exam makes the applicant ineligible to attempt other examinations.