Minimum Qualifying Marks for Viva Voce: Supreme Court Upholds High Court Rules in Judicial Appointments (2024)

Date of the Judgment: 6th May 2024

Citation: 2024 INSC 381

Judges: Hrishikesh Roy, J. and Prashant Kumar Mishra, J.

Can a High Court set minimum qualifying marks for the interview segment of judicial service exams? The Supreme Court of India recently addressed this question, focusing on whether such rules violate fundamental rights and prior Supreme Court judgments. The core issue revolves around the validity of setting a minimum score for the interview component in judicial service examinations, specifically for District Judge and Civil Judge positions in Bihar and Gujarat. The bench comprised Justices Hrishikesh Roy and Prashant Kumar Mishra, with Justice Roy authoring the judgment.

Case Background

The case involves multiple writ petitions challenging the selection process for judicial officers in Bihar and Gujarat. The primary concern is the imposition of minimum qualifying marks in the viva voce (interview) segment of the recruitment process. In Bihar, the challenge stems from the 2015 District Judge (Entry Level) direct recruitment, while in Gujarat, it concerns the recruitment of Civil Judges in 2019 and 2022. The petitioners, unsuccessful candidates, argue that these minimum marks are arbitrary and violate their fundamental rights under Articles 14 and 16 of the Constitution of India.

Specifically, in Bihar, the petitioners contested Clause 11 of Appendix “C” of the Bihar Superior Judicial (Amendment) Rules 2013, which mandates a minimum of 10 out of 50 marks in the interview. Similarly, in Gujarat, the challenge is against the amended Rule 8(3) of the Gujarat State Judicial Service Rules, 2005, which requires a minimum of 40% marks in the interview. The petitioners sought a fresh selection list based on aggregate marks from the written exam and interview, without the cut-off marks for the interview.

Timeline

Course of Proceedings

The judgment notes that some unsuccessful candidates in Bihar had filed writ petitions before the High Court alleging discrepancies in the framing of questions and revised model answers. The High Court, through an interim order, allowed candidates with a reduced score of 173 or more marks in the screening test to “provisionally” participate in the main examination. However, the High Court later dismissed these petitions, declaring that candidates who scored less than 176 marks in the screening test were ineligible for the main examination. This led to the disqualification of 5 candidates.

In Gujarat, the petitioners challenged the vires of the amended Rule 8(3) of the Gujarat State Judicial Service Rules, 2005, and the corresponding clauses of the advertisement. The petitioners sought a fresh select list based on the aggregate marks of the written examination and interview, irrespective of the cut-off marks prescribed. The High Court of Gujarat had previously upheld the validity of the amended rule prescribing 40% cut-off marks for interview, which was challenged in a Special Leave Petition that was dismissed by the Supreme Court on 30.1.2017.

Legal Framework

The judgment refers to several key legal provisions:

• Article 14 of the Constitution of India: Guarantees equality before the law and equal protection of the laws.
• Article 16 of the Constitution of India: Guarantees equality of opportunity in matters of public employment.
• Article 32 of the Constitution of India: Grants the right to move the Supreme Court for the enforcement of fundamental rights.
• Article 233 of the Constitution of India: Deals with the appointment of District Judges.
• Article 234 of the Constitution of India: 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 of the Constitution of India: Provides for the control of the High Court over the Subordinate Courts.
• Article 309 of the Constitution of India: Empowers the appropriate Legislature to regulate the recruitment and conditions of service of persons appointed to public services and posts.
• Article 320 of the Constitution of India: Deals with the functions of Public Service Commissions.
• Bihar Superior Judicial Service Rules, 1951: Governs the recruitment of judicial officers in Bihar.
• Gujarat State Judicial Service Rules, 2005: Governs the recruitment of judicial officers in Gujarat.

The judgment also quotes specific clauses from the Bihar Rules, 1951, as amended:

“10. A candidate will qualify for interview only if he secures minimum 45% marks in each paper and 55% marks in aggregate in the written test. Provided that in case the number of qualified candidates are not adequate, the High Court may, in the interest of judiciary, relax the qualifying marks in aggregate as may be required but this relaxation will not be below 50% in aggregate.”

“11. The candidates must secure at least 10 marks out of 50 marks in the interview.”

“12. The candidate must pass both the written test and interview before he is considered for appointment.”

The judgment also quotes Rule 8 of the Gujarat State Judicial Service Rules, 2005:

“8. Competitive examination: – (1) the competitive examination for direct recruitment to the cadre of District Judge or Civil Judges shall consist of: – (i) a written examination of not less than two hours of duration with 200 maximum marks; and (ii) viva voce test of maximum 50 marks. (2) the candidates who obtain fifty percent (50%) or more marks in the competitive examination conducted for direct recruitment to the cadre of District Judge or Civil Judge, shall be eligible for being called for Viva -voce; Provided that the candidates belonging to Schedule Castes and Scheduled Tribes who obtain forty five percent (45%) or above marks, in the written examination, conducted for direct recruitment to the cadre of Civil Judges, shall be eligible for being called for Viva -Voce. (3) the minimum qualifying marks in the Viva -voce conducted for direct recruitment to the cadre of District Judge and Civil Judge, shall be forty percent (40%) of marks. (4) merit list shall be prepared on the basis of total marks obtained in the written examination and Viva -Voce Test (interview). (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. (6) all necessary procedure not provided for in these rules of recruitment shall be decided by the High Court.”

Arguments

Petitioners’ Arguments:

• The primary argument is that the minimum cut-off marks for the viva voce (interview) segment are in violation of the principles established in All India Judges Association and Others vs. Union of India and Others [(2002) 4 SCC 247], which accepted recommendations of the Justice K.J. Shetty Commission. The Shetty Commission had suggested that while the interview should carry 50 marks, there should be no minimum cut-off marks.
• The petitioners contended that they have secured higher aggregate scores (written and viva voce combined) but were not selected because they failed to meet the minimum qualifying marks in the interview. They argue that interview marks are often arbitrarily awarded.
• In the Bihar case, the petitioners highlighted discrepancies in the selection process, including moderation of marks and relaxation of aggregate marks in the written examination. They argued that similar moderation should have been considered for the interview segment.
• It was argued that the interview board members in the Gujarat selection process had access to the written marks, which could have led to arbitrary disqualification of meritorious candidates.
• The petitioners also contended that the amendment to the Gujarat Rules in 2011 was done only in consultation with the High Court of Gujarat, and not the Gujarat Public Service Commission, violating Article 234 of the Constitution of India.
• The denial of appointment due to low viva voce scores was termed discriminatory, as it could be used to selectively remove deserving candidates.

Respondents’ Arguments (High Courts of Patna and Gujarat):

• The High Courts argued that they have the discretion to enforce stricter criteria than what was prescribed by the Shetty Commission. The recommendations of the Shetty Commission are only recommendatory, not mandatory.
• They argued that the procedure suggested by the Shetty Commission should be construed as guidelines only.
• The High Courts contended that they broadly adhered to the recruitment process for the District Judiciary and only made it slightly more stringent to ensure the selection of meritorious judicial officers and maintain the standards of the District Judiciary.
• The High Courts argued that the power to evolve their own procedure is vested with them under Articles 233, 234, and 235 of the Constitution.
• The High Court of Gujarat stated that the Internal Board members did not have access to the marks in the written test while conducting the viva voce test.
• The High Courts also argued that writ petitions at the instance of the unsuccessful candidates were not maintainable.

Submissions

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the prescription of minimum marks for viva voce is in contravention of the law laid down by this Court in All India Judges (2002) which accepted certain recommendations of the Shetty Commission?
2. Whether the prescription of minimum marks for viva voce is violative of Articles 14 and 16 of the Constitution of India?
3. 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?
4. Whether non-consultation with the Public Service Commission as required under Article 234 of the Constitution for selection to the post of Civil Judge in the State of Gujarat would render the Gujarat Rules, 2005 (as amended in 2011) void?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Analysis of the Court’s Reasoning

The Supreme Court’s judgment provides a comprehensive analysis of the issues raised by the petitioners, addressing each point with reference to existing legal precedents and constitutional provisions. The Court’s reasoning can be summarized as follows:

1. On the Validity of Minimum Cut-off Marks for Viva Voce:
   • The Court clarified that the 2002 All India Judges Association case did not explicitly address the issue of minimum qualifying marks for the interview. The Shetty Commission’s recommendations, which suggested no minimum cut-off, were considered guidelines rather than binding rules. The Court emphasized that High Courts have the power to set their own standards for selecting judicial officers, as long as these standards are not arbitrary or discriminatory.
   • The Court cited Dr. Kavita Kamboj v. High Court of Punjab and Haryana to support the view that a High Court can impose a minimum cut-off in the interview for senior positions, highlighting that the objective is to ensure the selection of meritorious candidates.
   • The Court distinguished the case of Hemani Malhotra v. High Court of Delhi, which held that minimum marks for viva voce cannot be introduced after the selection process has started. In the present case, the qualifying marks were notified before the selection process began, thus making it valid.
   • The Court relied on Ramesh Kumar v. High Court of Delhi to support the view that the competent authority can fix minimum qualifying marks for written and viva voce tests, further validating the High Courts’ actions.
   • The Court cited Salam Samarjeet Singh vs. High Court of Manipur at Imphal to emphasize that All India Judges (2002) was silent on the issue of minimum cut-off marks for viva voce.
2. On the Violation of Articles 14 and 16:
   • The Court held that prescribing minimum marks for interviews is not arbitrary or discriminatory. It reasoned that interviews are a crucial part of the selection process, designed to assess a candidate’s suitability for judicial office beyond their written knowledge. The Court noted that interviews evaluate qualities such as mental alertness, knowledge of law, communication skills, and character, which are essential for judicial officers.
   • The Court referred to E.P. Royappa v. State of T.N to discuss the principle of non-arbitrariness under Article 14, and Ajay Hasia v. Khalid Mujib Sehravardi in the context of arbitrariness and the weightage of interview marks.
   • The Court cited Lila Dhar v State of Rajasthan to emphasize the importance of interviews in assessing a candidate’s overall intellectual and personal qualities.
   • The Court cited Tanya Malik v Registrar General of High Court to support the view that prescribing minimum marks for interviews is desirable and necessary.
   • The Court cited Manish Kumar Shahi v State of Bihar to support the view that reasonable qualifying cut-off marks are not discriminatory.
   • The Court distinguished Sivananda CT v High Court of Kerala, noting that in the present case, the cut-off marks were notified before the selection process.
3. On the Bihar Selection Process:
   • The Court found that the High Court had the power to moderate marks and take corrective steps to ensure a fair selection process. The Court noted that the moderation was done to benefit the candidates and was not tainted by mala fide or statutory violations.
   • The Court referred to Ashok Kumar Yadav v. State of Haryana to discuss the threshold for invalidating a selection process.
   • The Court cited Sanjay Singh v UP Public Service Commission and Pranav Verma & Ors. v. Registrar General of the High Court of Punjab & Haryana to support the use of moderation or normalization of marks.
4. On Non-Consultation with the Public Service Commission in Gujarat:
   • The Court held that when the Public Service Commission itself does not wish to be consulted, the rules are not rendered void, especially when the High Court was consulted. The Court noted that the High Court has primacy in matters concerning judicial officers.
   • The Court referred to State of Bihar v. Bal Mukund Sah to distinguish the nature of consultation with the High Court and the Public Service Commission.
   • The Court cited State of U.P. v. Manbodhan Lal Srivastava to support the view that consultation with the Public Service Commission is not mandatory.
   • The Court relied on Rajendra Singh Verma v. Lt. Governor (NCT of Delhi) to emphasize the primacy of the High Court in matters concerning judicial officers.
   • The Court distinguished Goa Judicial Officer’s Association v State of Goa and N. Devasahayam v. State of Madras, noting that they did not provide an authoritative finding on the mandatory nature of Article 234.
   • The Court distinguished AC Thalwal v High Court of HP, noting that it dealt with non-consultation with the High Court, not the Public Service Commission.

The Court also emphasized the importance of maintaining the standards of the District Judiciary and the need for a robust selection process to ensure that only the most suitable candidates are appointed as judicial officers. The Court noted that the High Courts have a constitutional responsibility to maintain the quality of the judiciary and that they have the power to evolve their own procedures for selecting candidates as long as these procedures are fair, transparent, and non-discriminatory.

Judgment

The Supreme Court dismissed the petitions, upholding the validity of the minimum qualifying marks for viva voce in the judicial service examinations of Bihar and Gujarat. The Court held that:

• Prescribing minimum marks for the interview is not in contravention of the All India Judges (2002) judgment.
• Such minimum marks do not violate Articles 14 and 16 of the Constitution.
• The selection process in Bihar was not vitiated by the moderation of marks.
• The Gujarat Rules, 2005, as amended, are not void for lack of consultation with the Public Service Commission.

The Court emphasized that the High Courts have the power to evolve their own procedures for selecting judicial officers, provided these procedures are fair, transparent, and non-discriminatory. The Court also stressed the importance of maintaining the standards of the judiciary and ensuring that only the most suitable candidates are appointed.

Flowchart of Court’s Decision