Supreme Court clarifies legitimate expectation in judicial appointments: Sivanandan C T vs. High Court of Kerala (2023)

Date of the Judgment: July 12, 2023
Citation: 2023 INSC 709
Judges: Dr. Dhananjaya Y Chandrachud, CJI, Hrishikesh Roy J, Pamidighantam Sri Narasimha J, Pankaj Mithal J, Manoj Misra J
Can a High Court change the rules of selection for judicial appointments mid-process? The Supreme Court of India recently addressed this critical question in a case concerning the Kerala Higher Judicial Service. The core issue revolved around whether the High Court could introduce a cut-off mark for the viva voce (interview) after the selection process had commenced, thereby altering the criteria for selection. This judgment clarifies the importance of legitimate expectation in public employment and the need for transparency and consistency in administrative actions. The Supreme Court bench comprised of Chief Justice of India Dr. Dhananjaya Y Chandrachud, and Justices Hrishikesh Roy, Pamidighantam Sri Narasimha, Pankaj Mithal, and Manoj Misra.

Case Background

The case originated from a selection process for District Judges in the Higher Judicial Service of Kerala. The Kerala State Higher Judicial Services Special Rules, 1961, framed under Articles 233 and 309 of the Constitution, govern these appointments. The rules stipulate that 25% of the posts shall be filled by direct recruitment from the Bar based on aggregate marks in a competitive examination and viva voce.

On December 13, 2012, the High Court of Kerala notified a scheme for the Kerala Higher Judicial Service Examination, specifying that there would be no cut-off marks for the viva voce. A notification issued on September 30, 2015, invited applications for the posts, reiterating that the merit list would be based on the total marks obtained in the written examination and viva voce. The written test was conducted on March 12 and 13, 2016, and the viva voce took place between January 16 and 24, 2017.

However, on February 27, 2017, after the viva voce, the Administrative Committee of the High Court decided to apply the same minimum cut-off marks prescribed for the written examination to the viva voce. This decision was approved by the Full Court on March 6, 2017, leading to the publication of a final merit list that excluded candidates who would have been selected based on the aggregate marks without the cut-off. Aggrieved by this change, the petitioners approached the Supreme Court.

Timeline

Course of Proceedings

The petitioners, who were candidates for the District Judge positions, challenged the High Court’s decision to apply cut-off marks for the viva voce. They argued that this decision was contrary to the initial notification and the established rules. The matter was initially heard by a two-judge bench of the Supreme Court, which then referred it to a Constitution Bench due to a conflict with previous judgments regarding changes in selection criteria mid-process.

Legal Framework

The core legal framework for this case is based on:

• The Kerala State Higher Judicial Services Special Rules, 1961: These rules, framed under Articles 233 and 309 of the Constitution, govern the appointment of District Judges in Kerala. Rule 2(c)(iii) of the 1961 Rules stipulates that 25% of the posts shall be filled by direct recruitment from the Bar based on aggregate marks in the written examination and viva voce.
• Article 233 of the Constitution: This article provides that the appointment of persons to be posted as district judges in any state shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such state.
• Article 309 of the Constitution: This article empowers the appropriate legislature to 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.

The 1961 Rules specify that the merit list would be based on the aggregate marks obtained in the written examination and the viva voce. The High Court’s scheme of examination, notified on December 13, 2012, further clarified that there would be no cut-off marks for the viva voce.

Arguments

The petitioners, represented by Mr. V. Chitambaresh and others, argued that:

• The High Court’s decision to specify a cut-off for the viva voce was contrary to Rule 2(c)(iii) of the 1961 Rules.
• The scheme notified by the High Court on December 13, 2012, explicitly stated that there would be no cut-off for the viva voce.
• The notification of the High Court clarified that shortlisting of candidates would only be based on the length of practice at the Bar if the number of candidates was unusually large.
• The decision to prescribe a cut-off for the viva voce was made after the viva voce was conducted, depriving candidates of prior notice.

The respondents, represented by Mr. Dama Seshadri Naidu and others, argued that:

• Article 233 of the Constitution vests discretionary power with the High Court in matters of selection of judicial officers, which cannot be curtailed by statutory rules.
• The Selection Committee is an expert body best placed to understand the suitability of candidates and the needs of the judicial institution.
• The decision to specify minimum cut-off marks for the viva voce was applied across the board to select suitable candidates and does not suffer from arbitrariness.
• The High Court has the discretion to determine the weightage to be assigned to the viva voce, as it is an essential component to determine the suitability of candidates.

The core of the petitioners’ argument was that the High Court changed the rules of the game mid-selection process, violating the legitimate expectation that the selection would be based on the aggregate of the marks obtained in the written examination and the viva voce, without any cut-off for the viva voce. The respondents, on the other hand, defended the High Court’s decision as being in the interest of selecting suitable candidates for judicial office.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court framed the following key issues:

1. Whether the decision of the High Court of Kerala to apply a minimum cut-off to the viva voce examination is contrary to Rule 2(c)(iii) of the 1961 Rules.
2. Whether the High Court’s decision to apply the minimum cut-off marks for the viva voce frustrates the substantive legitimate expectation of the petitioners.
3. Whether the decision of the High Court is arbitrary and violative of Article 14 of the Constitution.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court held that the High Court’s decision to apply a minimum cut-off for the viva voce examination was indeed contrary to Rule 2(c)(iii) of the 1961 Rules and violated the legitimate expectation of the petitioners. The Court found the High Court’s action to be arbitrary and violative of Article 14 of the Constitution.

However, considering that the selected candidates had been working as District and Sessions Judges for about six years, the Court decided against directing the induction of the petitioners into the Higher Judicial Service. The Court reasoned that unseating the current judges would be contrary to public interest, as they had gained experience and were qualified for their positions.

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

The Supreme Court used the cited authorities to establish the principles of legitimate expectation, fairness in administrative action, and the need for consistency and predictability in governance. The Court relied on both Indian and common law precedents to emphasize that public authorities must adhere to their promises and practices unless there is a compelling public interest reason not to do so.

• Tej Prakash Pathak v. Rajasthan High Court, (2013) 4 SCC 540: The Court noted the reference to the Constitution Bench but found it unnecessary to rule on the broader constitutional issue in the present case.
• K Manjusree v. State of Andhra Pradesh, (2008) 3 SCC 512: The Court acknowledged the doubt cast on this judgment, but did not rule on it directly.
• State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220: The Court noted the contrast with K Manjusree but did not rule on it directly.
• State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640: The Court cited this case to highlight the High Court’s control over judicial administration.
• Salemi v. Mackellar, [1977] HCA 26: The Court used this case to establish the basis of legitimate expectation.
• Schmidt v. Secretary of State for Home Affairs, [1969] 2 WLR 337: The Court cited this case as an early example of the doctrine of legitimate expectation.
• O’Reilly v. Mackman, [1983] 2 AC 237: The Court cited this case to emphasize the duty of public authorities to act fairly.
• Attorney General of Hong Kong v. Ng Yuen Shiu, [1983] 2 WLR 735: The Court used this case to establish that a public authority is bound by its undertakings.
• Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374: The Court used this case to establish the grounds for judicial review of administrative decisions.
• Food Corporation of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71: The Court cited this case to highlight the duty of public authorities to act fairly and non-arbitrarily.
• Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499: The Court used this case to clarify the contours of the doctrine of legitimate expectation.
• Punjab Communication Ltd v. Union of India, (1999) 4 SCC 727: The Court cited this case to explain the difference between procedural and substantive legitimate expectation.
• R v. North and East Devon Health Authority, ex parte Coughlan, [2001] QB 213: The Court used this case to establish that frustration of a substantive legitimate expectation amounts to abuse of power.
• Nadarajah v. Secretary of State for the Home Department, [2005] EWCA Civ 1363: The Court cited this case for the principle that consistency and probity are tenets of good administration.
• R v. Department of Education and Employment, [2000] 1 WLR 1115: The Court cited this case to highlight the importance of good administration.
• Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381: The Court used this case to explain the concept of legitimate expectation.
• Bannari Amman Sugars Ltd v. CTO, (2005) 1 SCC 625: The Court cited this case for the principle that the court can infer the legitimacy of an expectation only if it is founded on the sanction of law.
• Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1: The Court used this case to establish the limits of legitimate expectation.
• Sethi Auto Service Station v. DDA, (2009) 1 SCC 180: The Court cited this case to clarify that legitimate expectation will not be applicable where the decision of the public authority is based on a public policy or is in the public interest.
• Monnet Ispat & Energy Ltd v. Union of India, (2012) 11 SCC 1: The Court used this case to emphasize that the doctrine of legitimate expectation cannot be invoked to fetter valid exercise of administrative discretion.
• P Suseela v. University Grants Commission, (2015) 8 SCC 129: The Court cited this case to show that the legitimate expectation of the claimants must yield to the larger public interest.
• Kerala State Beverages (M&M) Corp Ltd v. P P Suresh, (2019) 9 SCC 710
• Kerala State Beverages (M&M) Corp Ltd v. P P Suresh, (2019) 9 SCC 710: The Court used this case to show that the expectation of workers was not legitimate when weighed against the public interest.
• State of Jharkhand v. Brahmputra Metallics, 2020 SCC OnLine SC 968: The Court cited this case to emphasize that representations by public authorities should be held to scrupulous standards.
• NOIDA Entrepreneurs Association v. NOIDA, (2011) 6 SCC 508: The Court cited this case to observe that an executive decision without any basis in a principle or a rule is unpredictable.
• State of Bihar v. Shyama Nandan Mishra, 2022 SCC OnLine SC 554: The Court cited this case to highlight that regularity, predictability, certainty, and fairness are important facets of governance.
• S G Jaisinghani v. Union of India, 1967 SCC OnLine SC 6: The Court cited this case for the principle that the discretion available with public authorities is confined within clearly defined limits.
• SEBI v. Sunil Krishna Khaitan, (2023) 2 SCC 643: The Court cited this case to highlight that regularity and predictability are hallmarks of good regulation and governance.
• Union of India v. Lt. Col. P K Choudhary, (2016) 4 SCC 236: The Court used this case to reinforce that a legitimate expectation is not a legal right.
• Regina (Bibi) v. Newham London Borough Council, [2002] 1 WLR 237: The Court cited this case to formulate questions for applying the doctrine of legitimate expectation.
• Paponette v. Attorney General of Trinidad and Tobago, [2012] 1 AC 1: The Court cited this case for the principle that a claimant only has to prove the legitimacy of their expectation.

Ratio Decidendi

The ratio decidendi of this case is that a public authority cannot change the rules of selection mid-process, especially when it frustrates the legitimate expectation of candidates. The Supreme Court underscored that the doctrine of legitimate expectation is not merely procedural but also substantive. This means that if a public authority creates a legitimate expectation of a certain outcome, it is bound to honor that expectation unless there is a compelling public interest reason not to do so.

The Court emphasized that the doctrine of legitimate expectation is rooted in the principles of fairness, consistency, and predictability in governance. It is not a legal right but a reasonable expectation based on the conduct of the public authority. The Court also clarified that while the High Court has the power to determine the criteria for judicial appointments, it must exercise this power within the bounds of established rules and principles, and cannot arbitrarily alter the rules mid-process.

Ratio Table

Flowchart of the Case

Conclusion

The Supreme Court’s judgment in Sivanandan C T vs. High Court of Kerala is a significant reaffirmation of the doctrine of legitimate expectation in the context of public employment. It clarifies that public authorities must adhere to established rules and principles and cannot arbitrarily change the rules mid-process. The judgment also underscores that the doctrine of legitimate expectation is not merely procedural but also substantive, meaning that public authorities are bound to honor the expectations they create unless there is a compelling public interest reason not to do so. This ruling is a reminder that fairness, consistency, and predictability are essential tenets of good governance and that arbitrary actions by public authorities will not be upheld by the courts.