Nithyakalyani Narayanan. V
On July 12th, the Supreme Court gave the verdict that the selection process of the Kerala High Court for recruiting District Judges in 2017 was in violation of the Kerala High Judicial Services Rules of 1961. However, the court did not remove the selected candidates considering that the action would deprive the judiciary of experienced judges.
A Constitutional Bench of Chief Justice of India DY Chandrachud, Justice Hrishikesh Roy, Justice PS Narasimha, Justice Pankaj Mithal and Justice Manoj Misra. was hearing a complaint filed by 11 candidates for the posts of District Judges. They claimed that the High Court on the administrative side created a separate cut-off for the viva voce although the 1961 rules clearly prescribe that the merit list for direct recruitment from the bar would base on the aggregate of written exam and viva voce. This was not provided in the rules or in the 2015 notification calling for the applications.
The Rules mention that the aggregate of the written test and viva voce would be taken into consideration for appointment. The exam plan mentioned that no cut-off mark would be required for viva voce. The only power given to shortlist the candidates was on the basis of length of service in the bar. Nevertheless, the Administrative Committee shortened the list by demanding a cut-off mark for viva voce after it was held.
The Supreme Court declared that the procedure was illegal and ultra vires the Rules. The Bench remarked-
“This is not the case where rules of HC was silent. It is well settled that where statutory rules are silent it can be supplanted by administrative order consistent with the objective of the act. But here it was clear that merit list would be aggregate of written and viva and clarified that there would be no cut off for the viva. We conclude that decision of the High Court was ultra vires the rules of 1961 and is manifestly arbitrary.”
However, the Court did not unseat the candidates who were selected as they were already serving the judiciary and removing them would deprive the higher judiciary of candidates with experience.
“In view which we have taken, we have not considered the broader constitutional issue referred to constitution bench and the question is kept open.”
Senior Advocate V Chitambaresh, Advocate PV Dinesh, Adv. Haripriya, Adv. Raghenth Basant and Adv. Kuriakose Varghese represented the candidates while Senior Advocate Dama Seshadri Naidu represented the Kerala High Court.