Prescription of minimum qualifying marks for interview is permissible: Apex Court dismisses plea challenging Clause 11 of Bihar Judicial Service Rules, 1951 & Rule 8(3) of Gujarat Rules, 2005
Justices Hrishikesh Roy &Prashant Kumar Mishra [06-05-2024] 

Read Order: ABHIMEET SINHA & ORS v. HIGH COURT OF JUDICATURE AT PATNA & ORS [SC-WRIT PETITION (C)No.251 of 2016]

LE Correspondent

New Delhi, May 10, 2024: The Supreme Court has recently upheld 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. The Top Court has opined that 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.

The Division Bench of Justice Hrishikesh Roy and Justice Prashant Kumar Mishra was considering six writ petitions filed under Article 32 of the Constitution of India questioning the constitutionality of Clause 11 of the Bihar Superior Judicial Service Rules, 1951 and Rule 8(3) of the Gujarat State Judicial Service Rules, 2005 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 writ petitioners were alleging a violation of their fundamental rights under Articles 14 and 16 contained in Part III of the Constitution of India. 

The specific consideration to be made in these matters is whether prescribing minimum qualifying marks for viva voce is in contravention of the law laid down by this Court in All India Judges Association and Others vs. Union of India and Others [LQ/SC/2001/358] (All India Judges (2002)) which accepted certain recommendations of Justice KJ Shetty Commission (Shetty Commission). 

The recruitment, in this case, 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.  The fundamental challenge in these cases was the prescription of the minimum cut-off in the viva voce segment i.e. 20 per cent for the recruitment by the Patna High Court and 40 per cent for the recruitment under the Gujarat High Court respectively.

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.

The Bench was of the view that the writ petitioners should not be permitted to argue for selective implementation of the Shetty Commission recommendation, for doing away with the cut-off marks in the viva voce segment because if the recruitment process of the Patna High Court is to be tested on the recommended threshold marks of Shetty Commission i.e. 150 marks out of 250 marks for shortlisting general category candidates in the written exam, none of the writ petitioners would qualify for the viva-voce segment since they never secured the minimum 60% in the written marks aggregate. In the present case, the minimum cut-off as per the amended Rules was 55% and this was further lowered to 50% as per proviso to Clause 10 of Bihar Rules, 1951. 

In All India Judges (2002), the Bench stressed the importance of an objective standard for recruitment and emphasized that the process of direct recruitment should be through a written and viva-voce examination. However, there was no direct discussion on the aspect of viva voce except the remark in paragraph 27 that there should be an objective method of testing suitability. The Bench opined that the judgment in All India Judges (2002) is sub-silentio, on the aspect of minimum marks for interview. Therefore, this judgment cannot be considered as having authoritatively pronounced on doing away with minimum cut-off marks in the interview segment. By virtue of the decision in All India Judges (2002), it couldn’t 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. Therefore, the prescription of minimum marks in the Rules was not found to be in contravention of the judgment in the All-India Judges (2002).

The Bench observed that to avoid the meandering process noticed in the recruitment in the State of Bihar and to ensure more clarity and certainty with the process, it is 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. 

The Bench also took note of a few recommendations flagged in the December,2018 Report of Vidhi Centre for Legal Policy titled Discretion & Delay- Challenges of Becoming a District & Civil Judge which examined the judicial Service Rules of 29 States. 

As per the Bench, 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, it added.

Thus, dismissing the writ petitions, the Bench reached the following conclusions: 

• 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.
• 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.
• The impugned selection process in the State of Bihar and Gujarat are found to be legally valid and are upheld.

The non-consultation with the Public Service Commission would not render the Gujarat Rules, 2005 (as amended in 2011) void.