A Constitution Bench of the Supreme Court has ruled that the selection process adopted by the Kerala High Court in 2017 for the recruitment of District Judges was illegal and violated the Kerala High Judicial Services Rules of 1961.
The Court found that the High Court had fixed a cut-off mark for the viva voce after it was conducted, which was not provided for in the rules or the notification issued in 2015. The court held that this decision was manifestly arbitrary and ultra vires the rules.
However, the Supreme Court refrained from unseating the candidates who were selected in 2017, as they had already been serving as judges for six years. The Court noted that removing them would be harsh and would deprive the judiciary of experienced judges. The Court clarified that the failure of the petitioners to get selected should not be seen as a reflection of their merit and should not hinder their future opportunities for selection.
The Constitution Bench, comprising Chief Justice of India DY Chandrachud and Justices Hrishikesh Roy, PS Narasimha, Pankaj Mithal, and Manoj Misra, heard the challenge filed by eleven petitioners who were candidates for the posts of District Judges. The petitioners argued that the selection process violated Rule 2(c)(iii) of the 1961 Rules, which specified that the merit list would be based on the aggregate of written examination and viva voce, without any provision for a cut-off mark in the viva voce.
The Court found that the High Court's decision to introduce a cut-off mark for the viva voce after its conduct was contrary to the rules and the scheme notified by the High Court. The Court emphasized that the decision to prescribe a cut-off should have been made through an amendment to the rules, rather than through an administrative order. The Court concluded that the selection process followed by the High Court was arbitrary and ultra vires the rules.
While the Court acknowledged the infirmities in the selection process, it chose not to disturb the appointments made in 2017 due to the candidate's experience and the practical difficulties of unseating them. The Court recognized the qualifications of the selected candidates and the public interest in retaining experienced judges. However, the Court clarified that the petitioners' non-selection should not be seen as a reflection of their merit and should not hinder their prospects.
The Court did not address the broader constitutional issue of whether rules can be changed during the selection process, as it was not relevant to the facts of the Kerala case. The Court kept the question open for future consideration.
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