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Synopsis

The Supreme Court has on May 6, 2024 held that the prescription of minimum qualifying marks for interview for post of judges in district courts is permissible and this is not in violation of its previous judgment in All India Judges (2002) which accepted certain recommendations of Justice K J Shetty Commission.

A bench of Justices Hrishikesh Roy and Prashant Kumar Mishra upheld the selection process initiated in Bihar and Gujarat with such a criterion as legally valid.

The court repelled the challenge to the validity of 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.

The court said the Justice Shetty Commission was constituted to bring about uniformity in service conditions of judicial officers. 

"The recommendations made by the Commission are in the nature of guidelines and those will have to be seen in the context of the Rules governing recruitment of judicial officers," the bench said.

Further, by virtue of the decision in All India Judges (2002), it cannot be said that adequate elbow room was not available to prescribe qualifying marks in the interview segment to ensure the selection of the best possible person, the court said.

"Therefore, the prescription of minimum marks in the Rules is not found to be in contravention of the judgment in the All-India Judges (2002)," the bench added.

The court noted that when the minimum cut-off of 20% for the Bihar recruitment and 40% for the Gujarat recruitment were taken into account, those could not be considered to provide a high threshold if one kept in mind that the recruitment was for selection of judicial officers. 

"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," the bench said.

The court also said the reliance on competitive exams or written tests as the sole determinant of merit was 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” overlooking how factors such as socio-economic background, caste, gender, and other structural inequalities can shape opportunities and outcomes," it said, adding the written test cannot possibly capture the full spectrum of the individual's abilities and potential. 

The court also pointed out that 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. "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," it said.

"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," it said.

However, in order to avoid the meandering process noticed in the recruitment in the State of Bihar and to ensure more clarity and certainty with the process, the bench said, "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."

The bench also said that 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.

In Malik Mazhar Vs U P Public Service Commission (2006) the Supreme Court emphasised the importance of having a prescribed time schedule for conducting the judicial service examinations, it pointed out.

The court also noted a report of the Supreme Court’s Centre for Research and Planning notes that despite the judgment in Malik Mazhar 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 stated 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).

"To enable all the stakeholders to take consequential steps pursuant to the directions, this judgment should be brought to the notice of the Chief Justices of all the High Courts in India," the bench said.

The court dismissed a batch of writ petitions questioning the constitutionality of the Rules stipulating minimum qualifying marks in the viva voce test as a part of the selection criteria for appointment to the District Judiciary in the States of Bihar and Gujarat respectively. 

The petitioners had approached the court alleging a violation of their fundamental rights under Articles 14 and 16 contained in Part III of the Constitution of India. 

In its judgment, the court dealt with the specific issue of whether prescribing minimum qualifying marks for viva voce was in contravention of the law laid down by the top court in All India Judges Association and Others Vs Union of India and Others (2002) which accepted certain recommendations of Justice KJ Shetty Commission. 

The recruitment pertained to the selection of judicial officers of different ranks and respective selection cycles i.e. District Judge (Entry Level) by direct recruitment from the Bar (2015 Advertisement) for the State of Bihar and the post of Civil Judge (2019 and 2022 Advertisement) for the State of Gujarat.