Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

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observations of this Court in a case relating to reservation in promotion in B.K. Pavitra v Union of India31 is illuminating where the aspects of “merit” and “efficiency” was discussed in the following passage:- “134. It is well settled that existing inequalities in society can lead to a seemingly ―neutral system discriminating in favour of privileged candidates. As Marc Galanter notes, three broad kinds of resources are necessary to produce the results in competitive exams that qualify as indicators of ―merit. These are: ―… (a) economic resources (for prior education, training, materials, freedom from work, etc.); (b) social and cultural resources (networks of contacts, confidence, guidance and advice, information, etc.); and (c) intrinsic ability and hard work…‖ [Galanter M., Competing Equalities : Law and the Backward Classes in India, (Oxford University Press, New Delhi 1984), cited by Deshpande S., Inclusion versus excellence : Caste and the framing of fair access in Indian higher education, 40 : 1 South African Review of Sociology 127-147.]

135. The first two criteria are evidently not the products of a candidate’s own efforts but rather the structural conditions into which they are borne.”

64Copy pinpoint64. As can be seen from above, the reliance on competitive exams or written tests as the sole determinant of merit is increasingly being frowned upon. To borrow the phrase from philosopher Michael Sandel’s book, “The Tyranny of Merit”, successful candidates often feel a sense of “meritocratic hubris”32, overlooking how factors such as socio-economic background, caste, gender, and other structural inequalities can shape opportunities and outcomes.

65Copy pinpoint65. The written test cannot possibly capture the full spectrum of the individual’s abilities and potential. An interview can also provide a

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medium for marginalized candidates to showcase their talents in ways which a written test may not possibly allow. However, a caveat may be necessary here that candidates hailing from English-speaking urban environments might possess linguistic fluency and familiarity with cultural norms typically associated with interviews and therefore are likely to navigate the viva voce segment with relative ease. Conversely, candidates from marginalized communities may face challenges due to their lack of exposure to urban settings. This is further exacerbated by conscious and unconscious bias on grounds of gender, religion, caste etc. But can we ignore the intrinsic ability of the members of the interview panel constituted by the High Court judges to separate the grain from the chaff? This Court would like to believe that the members of the interview board can provide a level-playing field during the interview process for those who come from a disadvantaged background, to assess the true merit and potential of the interviewees. The solution lies in the interviewing members being aware and sensitive to alleviate bias in the process of Interview. However, the apprehension of bias cannot be the sole ground to strike down a Rule.

66Copy pinpoint66. As is seen from the precedents, only the overriding weightage to the viva-voce segment has been frowned upon by this Court but the prescription of reasonable qualifying cut-off marks33 is not considered discriminatory. In any case, administrative law remedies are always available to secure relief in cases where abuse of power is seen. When the minimum cut-off of 20% for the Bihar recruitment and 40% for the Gujarat recruitment are taken into account, those cannot be considered to provide a high threshold if one keeps in mind that the recruitment is for selection of judicial officers. In the context, the object of viva voce set out in Rule 8(5) of Gujarat Rules, 2005 deserves attention and is extracted: “(5) the object of the Viva-Voce Test (interview) is to assess the suitability of the candidate for the cadre by judging the mental alertness, knowledge of law, clear and logical exposition, balance of judgment, skills, attitude, ethics, power of assimilation, power of communication, character and intellectual depth and the like, of the candidate.”

33 Manish Kumar Shahi v State of Bihar (2010) 12 SCC 576

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67Copy pinpoint67. The above would show that there is a reasonable and direct nexus with the object sought to be achieved i.e. the appointment of well- rounded judicial officers. The prescription of minimum cut off is also not perceived to be of such a nature that it reeks of irrationality, or was capricious and/or without any adequate determining principle. It does not appear to be disproportionate so as to adversely affect “meritorious” candidates, as has been argued. It is certainly not manifestly arbitrary, or irrational or violative of Article 14 of the Constitution of India. For recruitment of judicial officers, ideally the effort should be to not only test the candidate’s intellect but also their personality. An interview unveils the essence of a candidate— their personality, passion, and potential. While the written exam measures knowledge, the interview reveals character and capability. Therefore, a person seeking a responsible position particularly as a judicial officer should not be shortlisted only by their performance on paper, but also by their ability to articulate and engage which will demonstrate their suitability for the role of a presiding officer in a court. In other words, the capability and potential of the candidate, to preside in Court to adjudicate adversarial litigation must also be carefully assessed during the interview.

68Copy pinpoint68. On the above parameters, it can’t be said that the concerned recruitment Rules are unconstitutional. It may also be observed here that there is no violation of the legitimate expectation of the writ petitioners so as to fail the test under Article 14. In Sivananda CT v High Court of Kerala34 which is cited, the factual backdrop was different. The Kerala State Higher Judicial Services Rules 1961 stipulated that the direct recruitment from the Bar shall be “on the basis of aggregate marks/grade obtained in a competitive examination and viva voce conducted by the High Court.” It was only after the conduct of viva voce that the High Court decided to have a minimum cut off, as a qualifying criterion. The distinguishing feature is that neither the provisions of the Kerala State Higher Judicial Services Special Rules,1961 nor the exam scheme or recruitment notification therein stipulated any cut-off for the viva voce. Therefore, it was in that context that the Court held that the minimum cut-off marks was manifestly arbitrary for frustrating the substantive legitimate expectation of the candidates under Article 14 of the Constitution.

34 [2023] 11 SCR 674 : (2024) 3 SCC 799

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Therefore, the cited case can have no application in the present matters where the cut off marks in the viva voce was notified before commencement of the selection process. Issue No.iii) Whether the selection process in Bihar is vitiated given the moderation of marks and corrective steps, highlighted by the petitioners in the Bihar Selection process?

69Copy pinpoint69. For this, it needs to be seen whether there are proven allegations of violations of statutory Rules, bias, malafide or fraud35. In this regard, the four-judge bench in Ashok Kumar Yadav v. State of Haryana36, discussed the threshold for invalidating the entire selection process as under: “21. …But suspicion cannot take the place of proof and we cannot strike down the selections made on the ground that the evaluation of the merits of the candidates in the viva voce examination might be arbitrary. It is necessary to point out that the Court cannot sit in judgment over the marks awarded by interviewing bodies unless it is proved or obvious that the marking is plainly and indubitably arbitrary or affected by oblique motives. It is only if the assessment is patently arbitrary or the risk of arbitrariness is so high that a reasonable person would regard arbitrariness as inevitable, that the assessment of marks at the viva voce test may be regarded as suffering from the vice of arbitrariness.”

70Copy pinpoint70. Guided by the above principle, the steps taken by the High Court after the issuance of advertisement as mentioned in the additional affidavit of Patna High Court summarized below, would bear consideration. i) The preliminary examination was held on 22.³.2015. 6,771 candidates appeared for the same. ii) The main exam was held on 12.7.2015 and over 1000 candidates appeared for the same. iii) The affidavit notes that only 15 candidates obtained qualifying marks in the written exam i.e. above 55%. However, Mr. Gautam

35 K.H. Siraj v. High Court of Kerala (2006) 6 SCC 395; Inderpreet Singh Kahlon v. State of Punjab (2006) 11 SCC 356 36 [1985] Supp. 1 SCR 657 : (1985) 4 SCC 417

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Narayan, learned counsel for the Patna High Court has clarified that this is a typographical error and only 3 candidates had, in fact, obtained qualifying marks. This is in consonance with the RTI Reply dated 10.².2017. iv) In order to fill up vacancies, the Selection and Appointment Committee of the High Court examined 20 answer sheets of each paper at random. It was decided that there was a need for moderation. Accordingly, the Selection and Appointment Committee comprising of 5 judges of the High Court in its meeting dated 8.¹.2016 proposed for moderation by adding 4% marks in Paper I & 6% marks in Paper II. v) Despite moderation, only few candidates secured above 55% marks in aggregate. Thereafter, the Full Court decided to permit relaxation of 5% in the aggregate marks under proviso to Clause 10 of Appendix C of the 1951 Rules. vi) After relaxation of marks to 50%, 81 candidates were found qualified in the written examination and results were uploaded on 22.¹.2016. vii) The interviews for those who scored 50% in the written, were conducted on 19.².2016, 20.².2016,22.².2016 and 23.².2016 by a Board of 5 judges of the High Court. Eventually, only 9 candidates could secure 10 marks or more out of 50 total marks in the interview. The said 9 persons upon Full Court approval were appointed by the Bihar Government on 17.5.2016.

71Copy pinpoint71. After issuance of notice in the Bihar writ petition, the concerned High Court officials while preparing the response, noticed discrepancies during decoding, tabulation and collation of marks and arranged for re-verification of the selection data. Thereafter, the following directions were issued by the Chairperson of the Committee in consultation with the Acting Chief Justice of the Patna High Court: “In view of summer vacations, the Committee is not available. Discussed the matter with Hon’ble ACJ on phone. Being a serious lapse, the following steps need be taken immediately: 1) Under personal supervision of Registrar (App ), Sr. Programmer, Nitesh will undertake the entire exercise

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of decoding, collation, and tabulation a fresh. In case of any assistance required Registrar General will be consulted. Prepare fresh tabulation, identifying lapses, submit report. 2) Registrar General will conduct enquiry to find out where was the lapses and consequently who was responsible. On this report being submitted, to initiate disciplinary proceedings against the person responsible for these lapses. Registrar General will issue show cause and Brother Ajay Kumar Tripathi will conduct the disciplinary proceedings. Put up before Hon’ble ACJ no sooner he is available. Matters to be dealt with utmost urgency and confidentiality.”

72Copy pinpoint72. After detailed verification of the record, it was found that 3 more candidates had obtained qualifying marks in the written examination for the purpose of viva voce having roll nos. 1111006603, 1111006636 and 1111006667 respectively. It was also found that 4 candidates had not obtained the qualifying marks in the written examination, though they were earlier shown to be qualified. Therefore, a corrigendum was issued on 30.6.2016 by which the High Court cancelled the candidatures of 4 unqualified candidates and also called the 3 other candidates for the viva-voce, who had obtained qualifying marks. The interview of the 3 candidates was held on 19.7.2016. However, none of them could qualify.

73Copy pinpoint73. Mr. Ajit Sinha, learned Senior Counsel had argued that these irregularities are so egregious that it would vitiate the entire selection process. While conceding that moderation did benefit the writ petitioners, it is still argued that the defective procedure must persuade this Court to set aside the selection process in Bihar. Per Contra, Mr. Gautam Narayan, learned counsel for the High Court of Patna argues that the discrepancies in Roll Numbers were due to the mistake of the candidates themselves. As regards moderation, Mr. Narayan, produced a chart before us containing the marks obtained by the candidates before and after moderation to show that it enured to the benefit of the writ petitioners.

74Copy pinpoint74. Whether moderation of marks was legally permissible, would require a reference to the relevant Rules and Advertisement. The relevant Clause 13 of Appendix C of Bihar Rules,1951 is extracted below: -

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“13. The Standing committee of the High Court, Patna may issue orders/directions in case of any doubt and difficulty” The Para 10 of the 2015 Advertisement reads as under: “10. The High Court shall have the power to make any relaxation in or exemption from the aforesaid terms and condition in the interest of Judiciary.”

75Copy pinpoint75. The above makes it clear that the High Court has been vested with requisite powers to provide clarification, relaxation and even exemption in the interest of the Judiciary. The words “relaxation” as also the general power to issue orders/directions in case of any “difficulty”, would in our view permit the process of moderation in order to provide for the adequate number of candidates for the interview test. The Clause 13 of Appendix C of the Bihar Rules read with Para 10 of the Advertisement provide adequate elbow room to the High Court to overcome difficulties in the selection process. It is nobody’s case that the corrective measures were not bonafide. Moreover, the process adopted is consistent with the Rules.

76Copy pinpoint76. In a moderation exercise, addition of marks and/or deduction of marks is envisaged. This Court in Sanjay Singh v UP Public Service Commission37, laid down certain guidelines for moderation of marks in judicial services examination. Preferring the method of “moderation” over “scaling”, it was noted that moderation is a more viable technique to reduce the variability of the examiners.

77Copy pinpoint77. In the same context, it would be useful to refer to the judgment in Pranav Verma & Ors. v. Registrar General of the High Court of Punjab & Haryana38 where this Court underscored the option of using moderation or normalization of marks, to ensure the selection of adequate number of candidates. In the said case, this Court had appointed Justice (Retd.) A.K. Sikri, a former Supreme Court judge to examine the selection process in a recruitment exercise where adequate number of candidates had not qualified. The learned judge verified the selection process but found no fundamental flaws. However, deficiencies were found in the evaluation of the Civil Law-I paper as only 8.5 minutes were available to the candidates to answer

37 [2007] 1 SCR 235 : (2007) 3 SCC 720 38 [2019] 15 SCR 43 : (2020) 15 SCC 377

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for each question. This was noted to be insufficient for the descriptive type questions and the lengthy paper. It was also noticed that marking in the Civil Law-II paper was too stringent, with the highest score being 95 out of 200 (47.5%) and the evaluators, as can be noticed, expected lengthy answers for each question without considering the limited time available for the candidates. Despite noting these facts, the Supreme Court held that the selection process need not be invalidated. Instead to save the selection, the Court directed that grace marks be awarded to all examinees.

78Copy pinpoint78. The above would show that if certain resolvable deficiencies are noticed in the selection process, the High Court has the elbow room to take corrective measures. The process of moderation can always be exercised bona fide if it uniformly benefits all the candidates. In the context, the chart produced by the learned counsel for the High Court makes it clear that moderation, in fact, benefited the present writ petitioners to facilitate their participation in the Interview round. The reduction of aggregate marks from 55% to 50% is traceable to the proviso to Clause 10 of Appendix – ‘C’ of the Bihar Rules 1951. A modest variation in the sequence of events narrated in the RTI Reply is shown but even in such situation the additional affidavit makes it clear that following the moderation exercise, the aggregate marks were reduced to 50%, in accordance with the Rules.

79Copy pinpoint79. The argument that for the interview also the qualifying marks should have been reduced just like in the written test is not acceptable since the Rules itself provided for a reduction in the aggregate marks in the written test. The proviso concerning relaxation is contained in Clause 10 which deals only with the written test. The Court in any case should not step into the shoes of the Selection Committee. The assessment and evaluation of the candidates appearing before the Selection Committee/Interview Board should best be left to the members of the Committee unless it is violative of the statutory Rules or tainted with ill motive. The decision of the Selection Committee was approved by the Full Court for increasing the number of candidates available for final selection.

80Copy pinpoint80. On examination of the subsequent steps taken by the High Court after conducting the exam, we do not find any mala fide or statutory violation so as to vitiate the entire selection process in Bihar. Similarly, in the Gujarat cases, besides making vague allegations, the petitioners have

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not presented any material to demonstrate any malicious intent or bias on the part of the selection Committee in the interview process. Thus, the selection process is not found to be tainted. Issue No. iv) Whether non-consultation with the Public Service Commission as required under Article 234 of the Constitution for amending the selection Rules stipulating minimum viva voce marks is rendered void?

81Copy pinpoint81. Mr. Pawanshree Agarwal, the learned counsel for the writ petitioner has argued that in IA 20279 of 2022 in WP(C) 663 of 2021, an additional challenge on account of violation of Article 234 has been raised. It is argued that the prescription of minimum qualifying marks in the viva-voce under Rule 8(3) as amended in 2011 was only in consultation with the High Court of Gujarat but not with the Gujarat Public Service Commission. Therefore, in view of the mandatory requirement of Article 234, the Rules must be declared to be void. On the other hand, Mr. Malkan on behalf of the Gujarat High Court contended that the Public Service Commission itself requested for exemption as per the Gujarat Public Service Commission (Exemption from Consultation) Regulations,1960 framed under the proviso to Article 320(3) of the Constitution of India. Additionally, Ms. Deepanwita Priyanka who appeared through video conferencing for the State of Gujarat, read out the contents of a letter dated 10.6.2005 written by the Gujarat Public Service Commission stating that the proposed post of “Civil Judge”, does not fall within its jurisdiction.

82Copy pinpoint82. To appreciate the above contentions, it would be helpful to note the relevant portion of the Gujarat Rules,2005 prior to the 2011 amendment: “In exercise of the powers conferred by the proviso to Article 309 read with Article 234 of the Constitution of India, the Governor of Gujarat, after consultation with the High Court of Gujarat and the Gujarat Public Service Commission, and in supersession of the Gujarat Judicial Services Recruitment Rules, 1961 hereby makes the following Rules regulating the Recruitment to the Gujarat State Judicial) Service.”

83Copy pinpoint83. The relevant portion of Gujarat Rules,2005(as amended in 2011) is next extracted:

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“In exercise of the powers conferred by the proviso to article a) read with Articles 233 and 234 of the Constitution of India, the Governor of Gujarat after consultation with the High Court of Gujarat hereby makes the following rules further to amend the Gujarat State Judicial Service Rules, 2005.”

84Copy pinpoint84. The omission of the words “and the Gujarat Public Service Commission” in the 2011 Rules is a relevant aspect, that requires attention. Articles 233, Article 234 and 235 in the Constitution which deals with “Subordinate Courts” would bear consideration here. Article 233 provides for the appointment of District Judges without requirement of consultation with Public Service Commission. The Article 234 empowers the Governor of a State to make appointments of persons other than District Judges to the judicial service of a State in accordance with the Rules after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 235 provides for the control of the High Court over the Subordinate Courts. Article 234 is relevant for our purpose: “Appointment of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State”

85Copy pinpoint85. Since the Rules were framed as per the proviso to Article 309, it is also extracted below for ready reference: “309. Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such

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person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.”

86Copy pinpoint86. This Court has had the occasion to examine the aforementioned provisions in the Articles in multiple decisions. While it is true that Article 234 mandates consultation with the Public Service Commission and the High Court, the five-judge Constitution Bench of this Court in State of Bihar v. Bal Mukund Sah39 (for short “Bal Mukund”), noted that there is a fine distinction in the nature of consultation between the two: “51. As seen earlier, consultation with the High Court as envisaged by Article 234 is for fructifying the constitutional mandate of preserving the independence of the Judiciary, which is its basic structure. The Public Service Commission has no such constitutional imperative to be fulfilled. The scope of the examining body’s consultation can never be equated with that of consultation with the appointing body whose agent is the former. It is also pertinent to note that the essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice which in turn depends on sufficient information and time being given to the party concerned to enable it to tender useful advice. It is difficult to appreciate how the Governor while consulting the Public Service Commission before promulgating the rules of recruitment under Article 234 has to solicit similar type of advice as he would solicit from the High Court on due consultation. The advice which in the process of consultation can be tendered by the Public Service Commission will confine itself to the constitutional requirements of Article 320. They are entirely

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different from the nature of consultation and advice to be solicited from the High Court which is having full control over the Subordinate Judiciary under Article 235 of the Constitution and is directly concerned with the drafting of efficient judicial appointments so that appropriate material will be available to it through the process of selection both at the grass-root level and at the apex level of the District Judiciary. Consultation, keeping in view the role of the High Court under Article 234 read with Article 235, stands on an entirely different footing as compared to the consultation with the Public Service Commission which has to discharge its functions of an entirely different type as envisaged by Article 320 of the Constitution.”

87Copy pinpoint87. It is well-settled that the consultation with the High Court as envisaged in Article 234 is to preserve the constitutional mandate of the Independence of the judiciary which forms part of the basic structure of the Constitution of India. The consultation with the High Court must be given primacy in matters of judicial recruitment as compared to the consultation with the Public Service Commission.

88Copy pinpoint88. With the above understanding of the law, let us now refer to Article 320 of the Constitution of India which is extracted below: “Functions of Public Service Commission (1) It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively. (2) It shall also be the duty of the Union Public Service Commission, if requested by any two or more States so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required. (3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted— a. on all matters relating to methods of recruitment to civil services and for civil posts;

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b. on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers; c. on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters; d. on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State; e. on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of the State, may refer to them: Provided that the President as respects the all- India services and also as respects other services and posts in connection with the affairs

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of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted. Nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of article 16 may be made or as respects the manner in which effect may be given to the provisions of article 335. All regulations made under the proviso to clause (3) by the President or the Governor of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during the session in which they are so laid.” [emphasis supplied]

89Copy pinpoint89. The source for the consultation with the “Public Service Commission” under Article 234 of the Constitution of India is to be traced from Article 320 of the Constitution which deals with the “Functions of Public Service Commission”. In this regard, Justice Hidayatullah in Constitutional Law of India40 had this to say on the nature of consultation: “The Consultation with the High Court is imperative. The insistence on the consultation with the High Court is obviously attributable to the recognition of that source

40 M. Hidayatullah(Ed), Constitutional law of India (The Bar Council of India Trust in association with Arnold- Heinemann Publishers, 1984) Vol. 2,147

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as one from which the most useful advice is obtainable on a matter concerning a service under its own control. Requirement to consult the Public Service Commission is equally understandable for the reason that the Commission is enjoined by Article 320 to conduct examinations for appointment to the Services under the State.”

90Copy pinpoint90. This Court has consistently held41 that the High Court should be assigned primacy in the process of consultation and the Rules framed without such consultation would be void. The same however is not true for absence of consultation, with the Public Service Commission. In State of U.P. v. Manbodhan Lal Srivastava42, this Court while interpreting Article 320(3) of the Constitution had noted that the word “shall” though generally taken in a mandatory sense, must be interpreted as “may”, leading to the conclusion that the consultation under Article 320(3), is not mandatory. Tracing the power of the High Court under Article 235 of the Constitution of India, in Rajendra Singh Verma v. Lt. Governor (NCT of Delhi)43, in the context of compulsory retirement, the Court pertinently noted that: “36. The Governor could not have passed any order on the advice of the Public Service Commission in this case. The advice should be of no other authority than the High Court in the matter of judicial officers. This is the plain implication of Article 235. Article 320(3)(c) is entirely out of place so far as the High Court is concerned dealing with judicial officers. To give any other interpretation to Article 320(3) (c) will be to defeat the supreme object underlying Article 235 of the Constitution specially intended for the protection of the judicial officers and necessarily the independence of the subordinate judiciary. It is absolutely clear that the Governor cannot consult the Public Service Commission in the case of judicial officers and accept its advice and act according to it. There is no room for any outside body between the Governor and the High Court.”

41 AC Thalwal v High Court of Himachal Pradesh (2000) 7 SCC 1; Supreme Court Advocates-on-Record Association v Union of India (1993) 4 SCC 441; Hari Dutt Kainthla v State of Himachal Pradesh, 1980 3 SCC 189 42 [1958] 1 SCR 533 : AIR 1957 SC 912 43 [2011] 12 SCR 496 : (2011) 10 SCC 1

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91Copy pinpoint91. At this stage, it needs to be clarified that this Court is not tasked to authoritatively decide whether consultation with Public Service Commission should be “mandatory” or “directory” under Article 234 of the Constitution of India. The question that needs to be answered in these matters is whether the Rules would be rendered void, in case the Public Service Commission itself didn’t wish to be consulted? The letter dated 10.6.2005, written by the Joint Secretary of the Public Service Commission is relevant and is extracted as follows: - “Sir, With reference to the subject noted above, vide the Notification No. GK-2005-5-JSR-1982-994-D, dated 9/05/2005 of the Legal Department, the recruitment rules of instant post have been issued. In pursuance of the details of the letter dated 6/06/2005 of the Commission, it is requested to remove the provision of “and the GPSC” from third line of the first paragraph of aforementioned rules. As the proposed posts under the recruitment rules do not fall within the purview of the Commission, it is requested to initiate the procedure to remove aforementioned words from aforesaid published recruitment rules.”

92Copy pinpoint92. The learned counsel for the Gujarat High Court has relied on Entry 11B in the Schedule to the Gujarat Public Service Commission (Exemption from Consultation) Regulations,1960 framed under the proviso to Article 320(3) of the Constitution which mentions the post of “The Civil Judge (Junior Division) and Judicial Magistrate of First Class.”

93Copy pinpoint93. The above discussion persuades us to say that the Governor is under no compulsion to consult the Public Service Commission in case the Commission does not wish to be consulted. Such a course would be in consonance with the proviso to Article 320(3) of the Constitution. The concerned Gujarat Rules cannot, therefore, be declared to be void on this count.

94Copy pinpoint94. For the Writ Petitioner, reliance has been placed by Mr. Pawanshree Agarwal on the decision of the Bombay High Court in Goa Judicial Officer’s Association v State of Goa44 to argue that the consultation

44 1997(4) BOM CR 372

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with Public Service Commission is mandatory. While it is true that the Bombay High Court decided that the consultation is mandatory, a careful reading of the judgment would show that the Court refused to grant any relief to the petitioner therein noting that this was an issue between the Government and the PSC and the petitioner could not claim any cause of action. The High Court specifically noted as under: “20. This controversy, however, need not detain us for long, because even assuming that there was no consultation at all, whether the petitioner is entitled to get any relief in this petition on that score is to be examined. The consultation or non-consultation is a matter between the Public Service Commission and the Government and that too at the stage of framing rules. Therefore, individual candidates are not very much concerned with that. Their rights are not dependent upon or decided upon the consultation or non-consultation with either the High Court or with the Public Service Commission. Therefore, non-consultation with the Public Service Commission will not give any cause of action to the petitioner or any one of the members of the petitioner’s Association to maintain this writ petition.”

95Copy pinpoint95. Similarly, reliance by the petitioners counsel on the judgment of the Madras High Court in N. Devasahayam v. State of Madras45 as regards the mandatory nature of the Consultation which is argued to have been endorsed by the Constitution Bench of this Court in Bal Mukund (supra), is found to be misplaced. In Bal Mukund (supra), the Court endorsed the finding in N. Devasahayam (supra), but the judgment would also show that there is no authoritative finding on the ‘mandatory’ or ‘directory’ nature of Article 234.

96Copy pinpoint96. Likewise, the judgment of the Supreme Court in AC Thalwal v High Court of HP46 would also be of no assistance for the petitioners as in that case, the Ex-Servicemen (Reservation of Vacancies in the Himachal Pradesh Judicial Service) Rules, 1981 was declared ultra vires the Constitution and hence void in the context of non-consultation with the High Court but not with the Public Service Commission under Article 234 of the Constitution of India. As discussed earlier, the Court

45 AIR 1958 Mad 53 46 [2000] Supp. 2 SCR 428 : (2000) 7 SCC 1

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noted that “the status which the High Court as an institution enjoys in the constitutional scheme and the expertise and the experience which it possesses of judicial services, justify a place of primacy being assigned to the High Court in the process of consultation.” It is undoubtedly mandatory to consult the High Court for framing Rules and any Rule enacted by the State Government without such consultation is considered ultra vires. The rationale is to safeguard the judicial service from executive influence which is rooted in the constitutional objective of establishing an independent judiciary.

97Copy pinpoint97. In Gujarat, when the Public Service Commission did not wish to be consulted under the proviso to Article 320(3) of the Constitution of India, in the absence of such consultation, it cannot be held that the Gujarat Rules, 2005 suffers from any legal or constitutional invalidity particularly when the Rules were framed with due consultation with the High Court. VII. CONCLUSION AND DIRECTIONS

98Copy pinpoint98. Before reaching our final conclusion in these matters, reference to Malik Mazhar v. U.P Public Service Commission47 would be in order where the Supreme Court emphasised the importance of having a prescribed time-schedule for conducting the judicial service examinations. The need for having a fixed timeline for each step of the examination process was also suggested in this case. Recently, taking note of the judicial vacancies in District Judiciary, this Court had taken suo moto cognizance⁴⁸ and directed the High Courts and State governments to report on whether the judicial vacancies will be filled in a timely fashion, as prescribed in Malik Mazhar (supra) . A report of the Supreme Court’s Centre for Research and Planning⁴⁹ notes that despite the judgment in Malik Mazhar (supra) prescribing timelines for recruitment, only 9 out of 25 states completed the recruitment of Civil Judge (Judge Division), within the stipulated time frame. The report notes that the State of Bihar took 945 days to complete the recruitment process computed from the date of advertisement (March 9,2020) to the date of final result (October 10,2022).

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99Copy pinpoint99. As can also be seen in the matters before us, for the Bihar selection process, the advertisement was issued in January, 2015; the final selection was made on 17.5.2016, and because of the need to do a few course corrections, the last candidate was called for the interview only in August, 2016. Similarly, for the selection of Civil Judges in Gujarat, while the advertisement was issued in 2019, the selection process could be completed only in 2021.

100Copy pinpoint100. To avoid the meandering process noticed in the recruitment in the State of Bihar and to ensure more clarity and certainty with the process, we deem it necessary to declare that processes such as moderation should be preferably set out in the Rules to ensure transparency and avoid dilemmas in the selection process. The moderation of marks for bonafide reasons should be permitted when the authority needs to do so, to address the issue of non-availability of adequate number of candidates for consideration in the interview segment. As a confidence building measure, the designation of those in the interview panel, could also be provided for appropriately, in the Rules. It would be apposite at this stage to note a few of the recommendations flagged in the December,2018 Report of Vidhi Centre for Legal Policy titled “Discretion & Delay- Challenges of Becoming a District & Civil Judge”50 which examined the judicial Service Rules of 29 States. The absence of a designated authority that can be approached by the candidates is flagged in the said report. As this appears to be a valid concern, the concerned High Court should notify a designated authority for a given recruitment process with clearly defined roles, functions and responsibilities. The candidates can approach such a designated authority to seek clarification in case of any doubt and this would assuage the anxiety of the candidates to a considerable extent. Another such suggestion of providing a basic outline of the syllabus for the proposed test will also help candidates from diverse backgrounds to plan and prepare for the proposed examination even before the examination notification is released. The recruitment process must adhere to the timeline but if there is any special and unavoidable exigency, the stakeholders should be kept informed with due promptitude.

50 Diksha Sanyal and Shriyam Gupta, “Discretion and Delay: Challenges in Becoming a District and Civil Judge” (December 2018) <https://vidhilegalpolicy.in/research/2019-1-7-discretion-and-delaychallenges- of-becoming-a-district-and-civil-judge/> accessed 3rd May, 2024

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101Copy pinpoint101. To enable all the stakeholders to take consequential steps pursuant to the above directions, this judgment should be brought to the notice of the Hon’ble Chief Justices of all the High Courts in India.

102Copy pinpoint102. With the foregoing discussion, the following conclusions are reached for the cases under consideration: - i) 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. ii) The validity challenge to Clause 11 of the Bihar Rules, 1951 and Rule 8(3) of the Gujarat Rules, 2005 (as amended in 2011) prescribing minimum marks for interview are repelled. iii) The impugned selection process in the State of Bihar and Gujarat are found to be legally valid and are upheld. iv) The non-consultation with the Public Service Commission would not render the Gujarat Rules, 2005 (as amended in 2011) void. The Writ petitions are, accordingly, dismissed without any order on cost.

Result of the case: Writ Petitions dismissed.

† Headnotes prepared by: Nidhi Jain