SC Reserves Verdict on Whether “Rules of the Game” for Appointment to Posts in Judiciary Can Be Changed Mid-Way

The Supreme Court on Tuesday reserved its verdict on whether “the rules of the game” for appointment to various posts in the judiciary can be changed mid-way through the selection process.

A five-judge constitution bench comprising Chief Justice D Y Chandrachud and Justices Hrishikesh Roy, P S Narasimha, Pankaj Mithal and Manoj Misra reserved the judgement after hearing the arguments advanced by the lawyers appearing for the parties.

The top court had on November 24 last year agreed to form a constitution bench for examining the larger issue raised in a number of petitions about whether “the rules of the game” for appointment to various posts in the judiciary can be modified in the middle of the selection process.

While hearing the matter on July 12, the apex court had termed as “manifestly arbitrary” the changes made by the Kerala High Court in the criteria for selection of additional district judges (ADJs) in the state in 2017.

The constitution bench, however, had refused to “unseat” those who were selected for the state higher judicial services six years ago, observing such a step will be against “public interest” and “harsh” on them.

It had also said the unsuccessful petitioners, as a consequence, cannot be inducted into the judicial services. Many of them might already be active in the legal profession, the court had said.

The bench was critical of the changes made by the full bench of the Kerala High Court to the criteria for selection.

“It was clear that merit list would be aggregate of written and viva voce and clarified that there would be no cut off for the viva. We conclude that decision of the HC was ultra vires the rules of 1961 and is manifestly arbitrary,” the bench had said.

It was dealing with as many as 17 petitions from several high courts, including the one questioning the Kerala High Court decision.

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According to the procedure prescribed under the Kerala State Higher Judicial Service Special Rules, 1961, the aggregate marks obtained by candidates in the written test and viva voce cumulatively were to be considered for appointment as ADJs.

However, the high court changed the selection criteria mid-way and fixed a minimum cut off for calling the candidates for viva voce, that too after completing the entire examination process.

In March 2013, a three-judge bench of the apex court had said, “No doubt it is a salutary principle not to permit the state or its instrumentalities to tinker with the ‘rules of the game’ insofar as the prescription of eligibility criteria is concerned as was done in the case of in order to avoid manipulation of the recruitment process and its results.”

“Whether such a principle should be applied in the context of the ‘rules of the game’ stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement of a larger bench of this court,” it had said.

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