Case title: Abhimeet Sinha and Ors v. High Court of Judicature at Patna and Ors.
Case no: Writ petition No.663/2021, No.735/2021, No.1073/2022, No.1146/2022, No.785/2023 and No.251 of 2016
Dated on: 06th May 2024
Quorum: Justice Hrishikesh Roy
Facts of the case:
Writ petitions were filed under Article 32 challenging the constitutionality of the Rules wherein minimum qualifying marks was stipulated in the viva voce test for appointment to the District Judiciary in the States of Bihar and Gujarat respectively, which according to the Writ petitioners violated fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. The writ petition 251 of 2016, relates to the recruitment of District Judge direct from Bar Examination (2015), and the recruitment process is governed by the Bihar Superior Judicial Service Rules, 1951. The prayer was to strike down Clause 11 of Appendix of Bihar Superior Judicial (Amendment) Rules 2013 and to set aside the selection for Bihar Superior Judicial Service. The other connected Writ Petitions relate to the recruitment to the post of Civil Judge in Gujarat. The writ petitioners challenged Rule 8(3) of the Gujarat State Judicial Service Rules apart from that, to prepare a fresh list to be based written examination and interview marks, irrespective of the cut-off prescribed.
Issues:
i) Whether the prescription of minimum marks for viva voce is in
contravention of the law laid down by in All India Judges (2002)?
ii) Whether prescription of minimum marks violates Articles 14 and 16 of the Constitution?
iii) Whether selection process in Bihar is vitiated due to moderation of marks and corrective steps in the Bihar Selection process?
iv) Whether non-consultation with the Public Service Commission for selection to the post of Civil Judge would render the Gujarat Rules,2005 void?
Legal provisions:
Writ Petition under Article 32 of the Constitution- Has been instituted in order to challenge the constitutional validity of Section 15 of the Hindu Succession Act, 1956 on the ground that there is a discrimination in the devolution of the estate of a woman who dies intestate, in comparison with the rules for devolution where a male has died intestate.
Contentions of the appellant:
The selection process is vitiated as it is in contravention of the law laid down in All India Judges (2002) where subject to modifications in the judgment, all other recommendations of the Shetty Commission, were accepted. As per the Commission, for selection of judicial officers the interview segment shall carry 50marks without any minimum cut-off marks for the reason that the prescription of minimum marks in the viva-voce test is arbitrary and unreasonable. The writ petitioners have better aggregate score (written and viva-voce combined) but are deprived of selection as they failed to secure the qualifying marks in the interview. The interview marks are arbitrarily awarded which is why the Shetty Commission recommended for doing away with the cut-off of marks, in the viva-voce. The fairness of the process ie by resorting to moderation and the relaxation of aggregate marks is clearly admitted. Hence, it was submitted that Court should order on the faulty selection process but should also allow appointment on the basis of the aggregate score, thereby not enforcing on the cut-off marks bar, in viva. The final result was declared on 8.4.2016 but the Selection and Appointment Committee continued issuing corrigendum, publishing, interviews till September 2016. If Patna High Court wanted candidates from a larger pool, due to large number of vacancies, then they ought to have relaxed qualifying marks in the interview. The interview board members had access to the written marks and therefore they could disqualify a meritorious candidate arbitrarily, by awarding them less than the qualifying marks. The amendment of were done only with the consultation of the High Court but not with the Gujarat Public Service Commission which violates Article 234 of the Constitution of India. Denial of appointment because of below par score in the viva-voce, is discriminatory.
Contentions of the respondent:
The High Court, to make the best selection can enforce a stricter criterion than what was prescribed by the Shetty Commission. The procedure suggested by the Shetty Commission is only recommendatory and should be construed as guidelines only. The objective of Patna High Court was to ensure the selection of meritorious judicial officers and maintain the standard of the District Judiciary. The writ petitions at the instance of the unsuccessful candidates is not maintainable. The High Court can evolve its own procedure under Articles 233,234 and 235 of the Constitution. Further, it was mentioned that the Internal Board members did not have access to the marks in the written test while conducting viva voce.
Courts analysis and Judgement:
It is argued by that by participating in the recruitment process, the writ petitioners cannot turn around and challenge the recruitment process. The writ petitioners argued that estoppel is not applicable when the arbitrariness affects fundamental rights under Articles 14 and 16 of the Constitution. The Supreme Court in Dr. (Major) Meeta Sahai Vs. Union of India that “The candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” In Shayara Bano v Union of India, the Supreme Court noted that a legislation can be struck for being arbitrary ie if it is “irrational, capricious without an adequate determining principle”. The issue to be examined is whether the vice of arbitrariness is attracted for the Rules which prescribes qualifying marks for the viva voce test. The issue raised by the writ petitioners to prescribe minimum marks for viva voce is not uncommon and the precedents suggest that it depends on the nature of the post and the extent of weightage given to viva voce. The Governor is under no compulsion to consult the Public Service Commission in case the Commission does not wish to be consulted which is in consonance with the proviso to Article 320(3) of the Constitution. Hence, the concerned Gujarat Rules cannot, be declared to be void. With the foregoing discussion, the conclusions arrived are: The Prescription of minimum qualifying marks for interview is permissible and this is not in violation of All India Judges (2002) which accepted certain recommendations of the Shetty Commission. The validity challenge to Clause 11 of the Bihar Rules, 1951 and Rule 8(3) of the Gujarat Rules, 2005 prescribing minimum marks for interview are repelled. The impugned selection process in the State of Bihar and Gujarat are legally valid. iv) The non-consultation with the Public Service Commission would not render the Gujarat Rules, 2005 void. T
he Writ petitions are, accordingly, dismissed without any order on cost.
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Judgement reviewed by- Parvathy P.V.
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