Holding

Prescribing reasonable minimum qualifying marks for the viva voce test is permissible, does not breach All India Judges (2002) or Articles 14/16, the Bihar and Gujarat selection processes are valid, and lack of PSC consultation does not invalidate the Gujarat rules.

Summary

The petitioners challenged the Bihar Superior Judicial Service Rules, 1951 and the Gujarat State Judicial Service Rules, 2005 for prescribing minimum qualifying marks in the viva voce interview for district and civil judges, alleging violation of the All India Judges (2002) decision, Articles 14 and 16, and procedural irregularities such as moderation of marks and lack of consultation with the Public Service Commission. The Court examined whether the minimum cut‑off marks were inconsistent with the Shetty Commission recommendations and whether the selection processes in Bihar and Gujarat were vitiated by alleged bias, moderation, or procedural lapses. It held that the statutes could validly prescribe reasonable interview cut‑offs and that the All India Judges (2002) case was silent on this issue, so the rules were not unconstitutional. The Court also found no arbitrariness or violation of equality principles, affirmed the legality of the moderation exercised by the High Courts, and ruled that non‑consultation with the PSC does not void the Gujarat rules. Consequently, all writ petitions were dismissed.

Issues considered

Whether prescribing minimum marks for viva voce contravenes the law laid down in All India Judges (2002) which accepted certain Shetty Commission recommendations
Whether the prescription of minimum marks for viva voce violates Articles 14 and 16 of the Constitution
Whether the Bihar selection process is vitiated by the moderation of marks and corrective steps taken by the High Court
Whether non‑consultation with the Public Service Commission under Article 234 renders the Gujarat Rules, 2005 (as amended) void

Legislation cited

Bihar Superior Judicial (Amendment) Rules, 2013
Bihar Superior Judicial Service Rules, 1951s. Appendix C, s. Clause 10, s. Clause 11, s. Clause 12
Constitution of Indias. 14, s. 16, s. 233, s. 234, s. 235, s. 309, s. 320
Gujarat Judicial Services Recruitment Rules, 1961
Gujarat Public Service Commission (Exemption from Consultation) Regulations, 1960
Gujarat State Judicial Service (Amendment) Rules, 2011
Gujarat State Judicial Service (Amendment) Rules, 2014
Gujarat State Judicial Service Rules, 2005s. Rule 8(3), s. Rule 8(5)

Subjects

RecruitmentSelection of judicial officersDistrict Judge (Entry Level)Civil JudgeMinimum qualifying marksViva voce testAll India Judges (2002)Shetty Commission recommendationsModeration of marksPublic Service CommissionArticle 14Article 16Article 234EstoppelRes judicataConstitutional validity

Judgment

[2024] 6 S.C.R. 530 : 2024 INSC 381

Abhimeet Sinha & Ors.
v.
High Court of Judicature at Patna & Ors.
(Writ Petition (C)No. 251 of 2016)
06 May 2024
[Hrishikesh Roy* and Prashant Kumar Mishra, JJ.]

Issue for Consideration
Issue arose as regards the constitutionality of the Rules-Bihar
Superior Judicial Service Rules, 1951 and 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;
whether the prescription of minimum marks for viva voce, in
contravention of the law laid down by this Court in All India Judges
(2002) which accepted certain recommendations of the Shetty
Commission; whether the prescription of minimum marks for viva
voce, violative of Articles 14 and 16 of the Constitution of India;
whether the selection process in Bihar vitiated given the moderation
of marks and corrective steps; whether non-consultation with the
Public Service Commission as required u/Art. 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.

Headnotes†
Judiciary – Selection of judicial officers – 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 – Rule 8(5) of Gujarat
Rules, 2005 and Clause 11 of the Bihar Rules prescribing
minimum qualifying marks in the viva voce test as a part of
the selection criteria for appointment, if in contravention of
the law laid down by this Court in *All India Judges (2002)
case which accepted certain recommendations of the Shetty
Commission:
Held: Prescription of minimum qualifying marks for interview is
permissible – It is not in violation of *All India Judges (2002)
case which accepted certain recommendations of the Shetty
Commission – Judgment in *All India Judges (2002) case is sub-
* Author
[2024] 6 S.C.R. 531

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

silentio on the aspect of minimun marks for interview – It cannot
be considered as having authoritatively pronounced on doing away
with minimum cut-off marks in the interview segment – In case of
inconsistency between the Shetty Commission recommendations
and the Rules, primacy should be given to the existing statutory
Rules – In the absence of existing Rules, the High Court should
follow the directions of this Court – Furthermore, even though the
statutory Rules can be supplemented to fill in gaps, the High Court
cannot act contrary to the Rules – Prescription of minimum cut-
off in the recruitment process was notified for information of the
candidates well before the commencement of the selection process
under the Patna High Court – 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 – Thus, the
prescription of minimum marks in the Rules is not found to be in
contravention of the judgment in the *All-India Judges (2002) –
Bihar Superior Judicial Service Rules, 1951 – Gujarat State Judicial
Service Rules, 2005. [Paras 102, 37, 39, 40, 48, 49]
Judiciary – Selection of judicial officers – Rule 8(5) of Gujarat
Rules, 2005 and Clause 11 of the Bihar Rules prescribing
minimum qualifying marks in the viva voce test as a part of the
selection criteria for appointment, if violative of Art. 14 and 16:
Held: Validity challenge to Clause 11 of the Bihar Rules, 1951
and s. 8(3) of the Gujarat Rules, 2005 (as amended in 2011)
prescribing minimum marks for interview are repelled – Recruitment
procedure should not only test the candidate’s intellect but also
their personality, for appointment to posts in the higher judiciary - In
recruitment for judicial vacancies oral interviews play an important
role to test the personality and caliber of the aspirant to judicial
posts – High scores for the written test by itself do not determine the
merit and suitability of an aspirant – An interview can also provide
a medium for marginalized candidates to showcase their talents in
ways which a written test may not possibly allow – Members of the
interview board can provide a level-playing field during the interview
process for those who come from a disadvantaged background, to
assess the true merit and potential of the interviewees – Solution
lies in the interviewing members being aware and sensitive
to alleviate bias in the process of interview – However, the
apprehension of bias cannot be the sole ground to strike down a
532 [2024] 6 S.C.R.

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Rule – Overriding weightage to the viva voce segment has been
frowned upon but the prescription of reasonable qualifying cut-off
marks is not considered discriminatory – Minimum cut-off of 20%
for the Bihar recruitment and 40% for the Gujarat recruitment ,
cannot be considered to provide a high threshold if one keeps in
mind that the recruitment is for selection of judicial officers – Thus,
the concerned recruitment Rules not unconstitutional – There is
no violation of the legitimate expectation of the writ petitioners so
as to fail the test u/Art. 14 –Bihar Superior Judicial Service Rules,
1951 –Gujarat State Judicial Service Rules, 2005. [Paras 102, 57,
60, 63, 65, 66, 68]
Judiciary – Selection of judicial officers – District Judge
(Entry Level) by direct recruitment from the Bar for the
State of Bihar and recuitment to the post of Civil Judge in
the State of Gujarat – Rules stipulating minimum qualifying
marks in the viva voce test as a part of the selection criteria
for appointment – Selection process, if vitiated given the
moderation of marks and corrective steps:
Held: Selection process in the State of Bihar found to be legally
valid and are upheld – On examination of the subsequent steps
taken by the High Court after conducting the exam, no mala fide
or statutory violation found so as to vitiate the entire selection
process in Bihar – High Court was vested with requisite powers to
provide clarification, relaxation and even exemption in the interest
of the Judiciary – Words “relaxation” as also the general power to
issue orders/directions in case of any “difficulty”, would permit the
process of moderation in order to provide for the adequate number
of candidates for the interview test – In a moderation exercise,
addition of marks and/or deduction of marks is envisaged – If certain
resolvable deficiencies are noticed in the selection process, the High
Court has the elbow room to take corrective measures – Process
of moderation can always be exercised bona fide if it uniformly
benefits all the candidates – It cannot be said that corrective
measures were not bonafide – Process adopted is consistent
with the Rules – Chart produced makes it clear that moderation,
in fact, benefited the writ petitioners to facilitate their participation
in the interview round – Decision of the Selection Committee was
approved by the Full Court for increasing the number of candidates
available for final selection – As regards, Gujarat cases, besides
making vague allegations, nothing presented to demonstrate any
malicious intent or bias on the part of the selection Committee in
[2024] 6 S.C.R. 533

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

the interview process – Thus, the selection process not found to
be tainted – Bihar Superior Judicial Service Rules, 1951 – Gujarat
State Judicial Service Rules, 2005. [Paras 102, 80, 75, 76, 78, 79]
Constitution of India – Art.234 – Appointment of persons other
than district judges to the judicial service – Selection to the
post of Civil Judge in the State of Gujarat – Non-consultation
with the Public Service Commission as required u/Art. 234 for
amending the selection Rules-Gujarat Rules, 2005(as amended
in 2011) stipulating minimum viva voce marks, if rendered void:
Held: Non-consultation with the Public Service Commission would
not render the Gujarat Rules, 2005 (as amended in 2011) void –
In Gujarat, when the Public Service Commission did not wish
to be consulted under the proviso to Art. 320(3), in the absence
of such consultation, it cannot be held that the Gujarat Rules,
2005 suffers from any legal or constitutional invalidity particularly
when the Rules were framed with due consultation with the High
Court – Consultation with the High Court as envisaged in Art. 234
is to preserve the constitutional mandate of the independence of
the judiciary – Consultation with the High Court must be given
primacy in matters of judicial recruitment as compared to the
consultation with the Public Service Commission – Governor is
under no compulsion to consult the Public Service Commission
in case the Commission does not wish to be consulted – Gujarat
Rules cannot, thus, be declared to be void on this count – Status
which the High Court as an institution enjoys in the constitutional
scheme and the expertise and the experience which it possesses
of judicial services, justify a place of primacy being assigned to the
High Court in the process of consultation – Thus, it is mandatory
to consult the High Court for framing Rules and any Rule enacted
by the State Government without such consultation is ultra vires.
[Paras 102, 97,87, 93, 96]
Judiciary – Recruitment/Selection of judicial officers – Certain
directions/suggestions as regards the conduct of judicial
service examinations:
Held: Processes such as moderation should be preferably set
out in the Rules to ensure transparency and avoid dilemmas in
the selection process – 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 – Furthermore, there
534 [2024] 6 S.C.R.

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is absence of a designated authority that can be approached by
the candidates – Concerned High Court to notify a designated
authority for a given recruitment process with clearly defined roles,
functions and responsibilities – 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 – Designation of those in the interview panel, be provided
for appropriately, in the Rules – Basic outline of the syllabus for
the proposed test to be provided, to help candidates from diverse
backgrounds to plan and prepare for the proposed examination even
before the examination notification is released – Also 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 – Said judgment to be brought to the notice of
the Hon’ble Chief Justices of all the High Courts in India to enable
all the stakeholders to take consequential steps. [Paras 100, 101]
Constitution of India – Art. 32 – Writ petition – Maintainability –
Principle of estoppel – Applicability – Matter pertaining to
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 – Plea of the various High Courts that after having
participated in the recruitment process, the writ petitioners
having not succeeded, cannot turn around and challenge the
recruitment process or the vires of the Recruitment Rules; that
all candidates knew about the prescription of minimum marks
for viva voce, well before the selection process commenced
and the principle of estoppel would operate against the
unsuccessful challengers whereas the writ petitioners pleaded
that the principle of estoppel not applicable since glaring
illegalities in the selection process; and that the estoppel is
not applicable when the arbitrariness affects fundamental
rights u/Art. 14 and 16:
Held: Principle of estoppel cannot override the law – In matters like
this, to non-suit the writ petitioners at the threshold would hardly be
reasonable when the alleged deficiencies in the process could be
gauged only by participation in the selection process. [Paras 19-20]
Constitution of India – Art. 32 – Principle of res judicata –
Instant matter as regards constitutionality of the Rules
stipulating minimum qualifying marks in the viva voce test as
[2024] 6 S.C.R. 535

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

a part of the selection criteria for appointment to the District
Judiciary in the States of Bihar and Gujarat respectively –
Validity of r. 8(3) of the Gujarat Rules, 2005 (as amended) was
earlier challenged before the Supreme Court, and this Court
transferred the said writ petition to the Gujarat High Court
wherein the High Court upheld the validity of the amendment
prescribing 40% cutoff marks for interview, and Special Leave
Petition thereagainst was dismissed – Principle of res judicata,
if attracted:
Held: Principle of res judicata cannot however be applied stricto
sensu – It was not the same writ petitioner who has approached
this Court under Art. 32 – Court here is confronted with a different
set of facts, another set of litigants who have raised additional
contentions – Thus, the submission that the writ petition should not
be dismissed on the ground of res-judicata, is reasonable – In any
case, the dismissal of Special Leave Petition has no consequence
on the question of law. [Para 23]
Judiciary – Selection of judicial officers – *All India Judges
(2002) matter which accepted certain recommendations of
the Shetty Commission while modifying or rejecting a few
others – Explained.[Paras 33, 34, 36, 37, 49]
Judiciary – Selection of judicial officers – Recommendations of
the Shetty Commission – Genesis – Explanation of. [Paras 25-32]
Judiciary – Selection of judicial officers – Recommendations
of the Shetty Commission – Implementation of:
Held: On facts, 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 – There cannot be selective implementation
of the Shetty Commission recommendation, for doing away with
the cut-off marks in the viva voce segment – Candidates cannot
be allowed to “approbate and reprobate” in the same breath – It
would be impermissible to seek dilution of the Shetty Commission
recommended criteria, only for the viva voce segment– Shetty
Commission recommended that the degree of subjectivity and
arbitrariness should be reduced and the selection should be
transparent. [Paras 30, 31]
Gujarat State Judicial Service Rules, 2005 – r. 8(5) – Viva
voce – Object – Explained. [Para 67]
536 [2024] 6 S.C.R.

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Case Law Cited
*All India Judges Association and Others v. Union of
India and Others [2002] 2 SCR 712 : (2002) 4 SCC
247 – explained and relied on.
Dr. (Major) Meeta Sahai v. Union of India (2019) 20
SCC 17 – relied on.
Sivananda CT v. High Court of Kerala [2023] 11 SCR
674 : (2024) 3 SCC 799; Hemani Malhotra v. High
Court of Delhi [2008] 5 SCR 1066 : (2008) 7 SCC 11;
Ramesh Kumar v. High Court of Delhi [2010] 2 SCR
256 : (2010) 3 SCC 104 – distinguished.
AC Thalwal v. High Court of Himachal Pradesh [2000]
Supp. 2 SCR 428 : (2000) 7 SCC 1 – held inapplicable.
N. Devasahayam v. State of Madras, AIR (1958) Mad
53 – disapproved.
Raj Kumar v. Shakti Raj [1997] 1 SCR 1159 : (1997)
9 SCC 527; Basheshar Nath v. Commr. of Income-tax,
Delhi [1959] Supp. 1 SCR 528 : AIR (1959) SC 149;
Olga Tellis v. Bombay Municipal Corporation [1985]
Supp. 2 SCR 51 : AIR (1986) SC 180; Nar Singh Pal
v. Union of India and others [2000] 2 SCR 752 : (2000)
3 SCC 588; Madan Lal v. State of J&K [1995] 1 SCR
908 : (1995) 3 SCC 486; Dhananjay Malik v. State of
Uttaranchal [2008] 3 SCR 1035 : (2008) 4 SCC 171;
Ramesh Chandra Shah v. Anil Joshi [2013] 5 SCR
687 : (2013) 11 SCC 309; Anupal Singh v. State of
Uttar Pradesh [2019] 12 SCR 1071 : (2020) 2 SCC
173; Krishna Rai v. Banaras Hindu University [2022]
7 SCR 1104 : (2022) 8 SCC 713; Daryao v. State of
UP [1962] 1 SCR 574 : AIR (1961) SC 1457; Inderjit
Singh Sodhi v. Chairman, Punjab State Electricity Board
[2020] 11 SCR 966 : (2021) 1 SCC 198; All India Judges
Association v. Union of India [1991] Supp. 2 SCR 206 :
(1992) 1 SCC 119; All India Judges Association v. Union
of India [1993] Supp. 1 SCR 749 : (1993) 4 SCC 288;
Pradeep Kumar Rai v. Dinesh Kumar Pandey [2015] 6
SCR 825 : (2015) 11 SCC 493; Dr. Kavita Kamboj v.
High Court of Punjab and Haryana and Others [2024]
2 SCR 1136 : 2024 SCC OnLine SC 254; Syed T.A.
[2024] 6 S.C.R. 537

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

Naqshbandi v. State of J&K [2003] Supp. 1 SCR 114 :
(2003) 9 SCC 592; Rakhi Ray v. High Court of Delhi
[2010] 2 SCR 239 : (2010) 2 SCC 637; Mahinder
Kumar v. High Court of Madhya Pradesh [2013] 13
SCR 884 : (2013) 11 SCC 87; Sasidhar Reddy v. State
of AP [2013] 12 SCR 985 : (2014) 2 SCC 158; Salam
Samarjeet Singh v. High Court of Manipur at Imphal
[2016] 9 SCR 771 : (2016) 10 SCC 484; Shayara Bano
v. Union of India [2017] 9 SCR 797 : (2017) 9 SCC 1;
Joseph Shine v. Union of India [2018] 11 SCR 765 :
(2019) 3 SCC 39; Lok Prahari v. State of UP 2016 (4)
SCR 1026 : (2016) 8 SCC 389; E.P. Royappa v. State
of T.N [1974] 2 SCR 348 : (1974) 4 SCC 3; Ajay Hasia
v. Khalid Mujib Sehravardi [1981] 2 SCR 79 : (1981)
1 SCC 722; Association for Democratic Reforms v.
Union of India [2024] 2 SCR 420 : 2024 INSC 113;
Lila Dhar v. State of Rajasthan [1982] 1 SCR 320 :
(1981) 4 SCC 159; KH Siraj v. High Court of Kerela
[2006] Supp. 2 SCR 790 : (2006) 6 SCC 395; State
of UP v. Rafiquiddin [1988] 1 SCR 794 : (1987) Supp
SCC 410; Taniya Malik v. Registrar General of the High
Court of Delhi [2018] 10 SCR 348 : (2018) 14 SCC
129; Pranav Verma v. The Registrar General of High
Court [2019] 15 SCR 43 : (2020) 15 SCC 377; B.K.
Pavitra v. Union of India [2017] 1 SCR 631 : (2019)
16 SCC 129; Manish Kumar Shahi v. State of Bihar
(2010) 12 SCC 576; Ashok Kumar Yadav v. State of
Haryana [1985] Supp. 1 SCR 657 : (1985) 4 SCC
417; Inderpreet Singh Kahlon v. State of Punjab [2006]
Supp. 1 SCR 772 : (2006) 11 SCC 356; Sanjay Singh
v. UP Public Service Commission [2007] SCR 1 235 :
(2007) 3 SCC 720; State of Bihar v. Bal Mukund Sah
[2000] 2 SCR 299 : (2000) 4 SCC 640; State of U.P.
v. Manbodhan Lal Srivastava [1958] 1 SCR 533 : AIR
(1957) SC 912; Rajendra Singh Verma v. Lt. Governor
(NCT of Delhi) [2011] 12 SCR 496 : (2011) 10 SCC
1; Supreme Court Advocateson-Record Association v.
Union of India [1993] Supp. 2 SCR 659 : (1993) 4 SCC
441; Hari Dutt Kainthla v. State of Himachal Pradesh
[1980] 3 SCR 364 : (1980) 3 SCC 189; Goa Judicial
Officer’s Association v. State of Goa (1997) 4 BOM CR
372; Malik Mazhar v. U.P Public Service Commission
[2006] 3 SCR 689 : (2006) 9 SCC 507 – referred to.
538 [2024] 6 S.C.R.

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Books and Periodicals Cited
Michael J Sandel, The Tyranny of Merit: What’s become
of the Common Good? (Allen Lane,2020) – referred to.
Websites
Diksha Sanyal and Shriyam Gupta, “Discretion and
Delay: Challenges in Becoming a District and Civil
Judge” (December 2018) <https://vidhilegalpolicy.in/
research/2019-1-7-discretionand-delaychallenges-of-
becoming-a-district-and-civil-judge/> accessed 3rd May,
2024 – referred to.
List of Acts
Constitution of India; Bihar Superior Judicial Service Rules, 1951;
Bihar Superior Judicial (Amendment) Rules 2013; Gujarat State
Judicial Service Rules, 2005; Gujarat Judicial Services Recruitment
Rules,1961; Gujarat State Judicial Service (Amendment) Rules,
2011; Gujarat State Judicial Service (Amendment Rule, 2014);
Gujarat Public Service Commission (Exemption from Consultation)
Regulations,1960.
List of Keywords
Recruitment; Selection of judicial officers; District Judge (Entry Level)
by direct recruitment from Bar; Post of Civil Judge; Minimum qualifying
marks in the viva voce test; District Judiciary in the States of Bihar
and Gujarat; All India Judges (2002) case; Recommendations of
the Shetty Commission; Moderation of marks and corrective steps;
Non-consultation with the Public Service Commission; Minimun
marks for interview; Inconsistency between the Shetty Commission
recommendations and the Recruitment Rules; Statutory Rules,
supplemented to fill in gaps; Recruitment process; Uniformity in
service conditions of judicial officers; Viva voce test as part of
selection criteria for appointment; Legitimate expectation; Public
Service Commission; Writ petition, maintainability; Principle of
estoppel; Arbitrariness; Principle of res judicata.
Case Arising From
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.251 of 2016
(Under Article 32 of The Constitution of India)
With
Writ Petition (C) Nos. 663 and 735 of 2021, 1073 and 1146 of 2022
and 785 of 2023
[2024] 6 S.C.R. 539

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

Appearances for Parties
Ajit Kumar Sinha, Rameshwar Singh Malik, Yatindra Singh, Sr.
Advs., Deepak Goel, Mithilesh Kumar Jaiswal, Ms. Alka Goyal, Ms.
Urvashi Sharma, Ms. Harshita Maheshwari, Kumar Kartikay, Mrs.
Archana Preeti Gupta, Naveen Soni, Vipin Kumar Saxena, Jitesh
Malik, B C Bhatt, Mrs. Leelawati Suman, N D Kaushik, Satish
Kumar, Anil Kumar Sahu, Arvind Gupta, Prakash Gautam, Sujeet
Kumar, Arunansh Bharti Goswami, Brahma Prakash, Pawanshree
Agrawal, Sunil Kumar Jain, Ms. Rashika Swarup, Rishabh Sancheti,
Ms. Padma Priya, Garvit Sharma, K. Paari Vendhan, Ms. Shraddha
Deshmukh, Arjun Singh Bhati, Gurdeep Singh, Gautam Narayan,
Ms. Asmita Singh, Harshit Goel, Sujay Jain, K. Prasad, Purvish
Jitendra Malkan, Ms. Dharita Purvish Malkan, Alok Kumar, Kush
Goel, Ms. Deepa Gorasia, Ms. Deepanwita Priyanka, Ms. Prerna
Singh, Guntur Prabhakar, Guntur Pramod Kumar, Lalit Kumar,
Devendra Singh, Mritunjay Kumar Sinha, Mrs. Vimal Sinha, Abhay
Kumar, B S Rajesh Agrajit, Ms. Rajbala, Ms. Meetu Goswami,
Shyamal Kumar, Krishnavani Sharma, Hitesh Kumar Sharma,
Akhileshwar Jha, Sandeep Singh Dingra, Ms. Tanishka Grover, Amit
Kumar Chawla, Verendra Mohan, Ms. Niharika Dewivedi, Ranjit
Kumar Sharma, Amit Pawan, Ratnesh Kumar Shukla, Purushottam
Sharma Tripathi, Vimal Dubey, Mukesh Kumar Singh, Ravi Chandra
Prakash, Ms. Vani Vyas, Anup Kumar, M/S. Parekh & Co., Advs.
for the appearing parties.
Judgment / Order of the Supreme Court

Judgment
Hrishikesh Roy, J.
1. The common challenge in these six writ petitions filed under Article
32 of the Constitution of India is to 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 writ
petitioners have approached this Court 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
540 [2024] 6 S.C.R.

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in All India Judges Association and Others vs. Union of India and
Others1 (for short “All India Judges (2002)) which accepted certain
recommendations of Justice KJ Shetty Commission (for short
“Shetty Commission”). The recruitment pertains 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 Individual facts in the writ petitions may differ but the legal
arguments broadly overlap. Wherever necessary, the individual
facts and legal arguments will be dealt with separately.
I. FACTS
2. The writ petition i.e. WP(C) No.251 of 2016 (considered here as
the lead case), relates to the recruitment of District Judge (Entry
Level) direct from Bar Examination (2015), in the State of Bihar.
The recruitment process is governed by the Bihar Superior Judicial
Service Rules, 1951 (for short “Bihar Rules, 1951”) as amended,
from time to time. The prayer in the writ petition is to strike down
Clause 11 of Appendix “C” of Bihar Superior Judicial (Amendment)
Rules 2013 which is projected to be contrary to the recommendation
of the Shetty Commission, as accepted by this Court in All India
Judges (2002) in paragraphs 37 and 38. The second prayer in the
writ petition is to set aside the selection for Bihar Superior Judicial
Service, under the Advertisement No. 1/2015 as published vide
notice dated 08.04.2016.
3. The connected matters i.e. WP(C) No.663/2021, WP(C)
No.735/2021, WP(C) No.1073/2022, WP(C) No.1146/2022 and
WP(C) No.785/2023 relate to the recruitment to the post of Civil
Judge in Gujarat. The writ petitioners therein challenged the vires
of the amended Rule 8(3) of the Gujarat State Judicial Service
Rules, 2005 (for short “Gujarat Rules, 2005”), which was amended
by notification dated 23.6.2011 as well as the corresponding
clauses of the advertisement of the respective recruitment years.
The ancillary prayer is to prepare a fresh select list based on the
aggregate marks of written examination and interview, irrespective
of the cut-off marks prescribed.

1 [2002] 2 SCR 712 : (2002) 4 SCC 247
[2024] 6 S.C.R. 541

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

A) Bihar Selection Process (2015)
4. The main writ petition is filed by 46 unsuccessful candidates who
participated in the District Judges (Direct from Bar) Examination
in 2015. The Bihar Rules,1951 came into force on 31.7.1951. The
amendment to the Bihar Rules, 1951 was brought by a notification
dated 3.4.2013, which, inter alia, provided for a screening test, a
written main test, and also an interview for selection to the Bihar
Superior Judicial Service. The total marks in the main written
examination and the interview were 250 and 50 marks respectively.
To qualify, candidates had to secure a minimum of 150 marks out
of 250 marks (60%) in the main written examination and at least 10
out of the total 50 marks (20%), in the viva voce segment.
4.1. Following the further amendment on 3.12.2014 of the Bihar
Rules, 1951, a proviso was added to clause 10 of Appendix C,
granting power to the High Court to relax the qualifying marks
in aggregate. Clauses 10,11 and 12 of the appendix C of Bihar
Rules, 1951 provided as follows: -
“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.”
4.2. With the above prescription of marks, the advertisement No.
1/2015 was issued in January 2015 by the Patna High Court
to fill up 99 vacancies in the Bihar Superior Judicial Service.
The advertisement provided in clauses 6(d) and (e) that the
candidates will have to secure at least 10 out of 50 marks, in
the interview segment.
4.3. Responding to the above advertisement in January 2015,
around 6771 candidates appeared in the preliminary
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examination held on 22.03.2015. Those securing 176 marks
or more in the screening test were cleared to participate in the
main examination. Some unsuccessful candidates had filed
writ petitions before the High Court alleging discrepancies
in the framing of questions and revised model answers.
Eventually, on the High Court’s interim order, those with a
reduced score of 173 or more marks in the screening test
were also “provisionally” allowed to write the main examination.
The main written test was held on 12.7.2015 where around
1000 candidates (qualifying in the preliminary examination)
appeared.
4.4. However, only 3 candidates were found to have obtained the
qualifying marks i.e. above 55 % in the written examination.
Accordingly, the five Judges of the Selection and Appointment
Committee of the Patna High Court proposed moderation of
marks in their meeting dated 8.1.2016. This led to adding of 4%
marks in paper 1 and 6% marks in paper 2 in the respective
scores of the individual candidates.
4.5. Despite the above moderation exercise, very few candidates
could secure the notified 55% marks in aggregate. To address
the issue, the Selection and Appointment Committee permitted
a relaxation of 5% in the aggregate in the meeting held on
13.1.2016 by exercising options under the proviso to Clause
10 of Appendix – ‘C’ of the Bihar Rules 1951. The Full Court
endorsed the relaxation of aggregate marks at 50% in the
written test. With this, 81 candidates who had scored 50% in
the written test qualified for the interview, and their results were
declared on 22.1.2016.
4.6. In the meantime, the Patna High Court on 8.1.2016 dismissed
the Writ Petition (CWJC No.11731/2015) of candidates who
were earlier allowed by way of an ad-interim order, to appear
in the main written exam with the declaration that candidates
who had secured less than 176 marks in the screening test,
are ineligible to take part in the main examination. Accordingly,
5 such candidates who scored less than 176 marks were
disqualified on 1.2.2016. During the verification process, 3
other shortlisted candidates were found to be not practicing as
lawyers and were thus found ineligible. Finally, 69 candidates
were cleared for the interview which was conducted in February
[2024] 6 S.C.R. 543

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

2016, by a Committee of 5 Judges of the High Court. Following
the viva voce test, after computing the average of the marks
awarded by the individual members of the Board, it was found
that only 9 candidates had secured the minimum 10 marks out
of 50, in the interview segment. The Full Court of the Patna
High Court in their meeting held on 5.4.2016 then approved the
appointment of these 9 candidates and they were appointed
on 17.5.2016.
4.7. Challenging the selection process in Bihar, 46 candidates who
did not qualify for not securing the minimum 10 marks in the
interview, moved this Court. As noted earlier, the validity of
Clause 11 of Appendix – C of the Bihar Rules 1951 (amended
on 3.4.2013) is challenged in this writ petition. Notice was issued
in the Writ Petition on 2.5.2016 by this Court.
4.8. When the reply was being prepared by the Patna High Court
to respond to the writ petition, certain discrepancies were
noticed during decoding, tabulation, and collation of marks in
the main examination and the Registrar General of the High
Court on 1.6.2016 apprised the Selection and Appointment
Committee, about the errors. Then the Chairperson of the
Committee in consultation with the Acting Chief Justice of the
Patna High Court ordered for fresh tabulation. Following detailed
verification of the records, it was found that 3 more candidates
had obtained the qualifying marks in the written examination
and as such were eligible to appear in the interview segment.
It was simultaneously found that 4 candidates earlier shown to
have qualified, had not actually obtained the qualifying marks.
Following the resultant course corrections, 3 more candidates
were allowed to participate in the interview and a corrigendum
was issued for the 4 candidates, who were wrongly shown to
have been qualified. Then the interview of the 3 candidates
was held on 19.7.2016 but none of them secured the minimum
10 marks prescribed in the interview segment. Two serving
judicial officers had applied under the 25% quota meant for Bar
members and under a judicial order passed by the High Court
on 9.8.2016, both judicial officers were permitted to participate
in the selection process, without requiring them to resign from
their job. One of them had not secured the required minimum
marks for appearing in the interview segment and accordingly,
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only one person (Sunil Kumar Singh) was called for the interview
on 31.8.2016. But since the concerned candidate failed to
secure the minimum 10 marks in the interview, he was also
not selected.
B) Developments Post-2015 Selection in Bihar
5. In August 2016, the Patna High Court issued another advertisement
for filling up posts for District Judge (Entry Level), for 98 vacancies
(including 90 unfilled vacancies of 2015 examination). In the
meantime, the proposal was made to amend the Bihar Rules 1951
and delete the cut-off requirement of minimum 10 marks, for qualifying
in the interview. The August 2016 advertisement did not provide for a
minimum qualifying mark in the interview segment. The appropriate
in-tune amendment of the Rules was approved by the Full Court on
22.6.2016. Thereafter, the Bihar Rules 1951 was again amended
on 16.2.2017 and Clauses 10,11 and 12 of Appendix-C of the Bihar
Rules 1951 were substituted as follows: -
“10. The ratio of marks of theory papers and viva-voce
will be 80% and 20%.
11. A candidate will be called for viva-voce only if he
secures at least 45% in each theory paper.
12. A candidate will qualify for appointment if the candidate
secures at least 45% marks in each theory paper and 50%
in aggregate in written test (theory papers) and viva-voce,
taken together.”
5.1. Following the aforesaid amendment, the 2016 recruitment
process was conducted and 98 selected candidates were
appointed in March 2018, against the advertised vacancies.
5.2. Further examinations were held under the aforenoted amended
Rules through the advertisement in the year 2019 for 16
vacancies against which, 12 candidates were appointed. In
the next examination conducted in 2020, 16 more candidates
were selected and appointed.
5.3. After the above recruitment process in the years 2016, 2019
and 2020 respectively, on 6.1.2020 the Bihar Rules 1951
were amended again by which Clause 12 of Appendix-C was
substituted. The amended Clause 12 reads as under:-
[2024] 6 S.C.R. 545

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

“12. A candidate will qualify for appointment if the
candidate secures at least 45% marks in each theory
paper, 30% marks in viva-voce/interview and 50%
marks in aggregate in written test (theory papers)
and viva-voce taken together.”
5.4. With the above amendment carried out on 6.1.2020, a candidate
aspiring for selection in the Bihar Superior Judicial Service is
required to score 30% marks in the interview and 50% in the
aggregate of written test and viva-voce test taken together, to
qualify for recruitment.
C) Gujarat Selection Process
6. For the batch of five writ petitions relating to the selection process
in Gujarat, the relevant facts are taken from the WP(C) 663/2021.
The salient facts on which the challenge is raised, are substantially
similar in these cases. The Gujarat Rules, 2005, substituted the
erstwhile Gujarat Judicial Services Recruitment Rules,1961. The
Gujarat Rules,2005 came to be amended firstly by the Gujarat
State Judicial Service (Amendment) Rules, 2011 dated 23.6.2011
and secondly by the Gujarat State Judicial Service(Amendment
Rule,2014) dated 9.9.2014. As per the amendments, Rule 8 provided
for competitive examination for recruitment to the respective cadres
of District Judge and Civil Judge. The following was the prescription
for the competitive examination:
“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;
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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.”
6.1. With the Rules amended as above, an advertisement was
issued on 26.8.2019, for recruitment of Civil Judges in Gujarat.
The scheme of examination and syllabus was notified for the
preliminary examination, main written examination, and the
viva-voce test in the advertisement. Under Clause 5 (II) (B),
it was specified that the viva-voce test shall be of 50 marks.
Under sub-Clause (ii) of Clause 5 (II) (B) the object of the
Viva-voce test was indicated as under:
“(II) (B) (i) **** ****
(ii) The object of the Viva-voce Test 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
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of communication, character and intellectual depth
and the like, of the Candidate.”
6.2. It was also specified in the advertisement under sub-Clause
(iii) of Clause 5 (II) (B) that for being eligible to be included in
the select list, the candidate must obtain a minimum of 40%
marks in the viva-voce test.
6.3. On 8.9.2019, Kritika Bodha (WP(C) 663/2021), one of the
candidates, submitted her application for selection to the
post of Civil Judge. The results of the preliminary exam were
declared on 18.12.2019. The main written examination was
conducted on 19.1.2020 and the results thereof were published
on 24.7.2020, declaring 132 candidates as successful for the
interview round. The interview was conducted on 7.3.2021. The
last candidate in the general category had 124 marks and the
writ petitioner (because of the below 40% viva voce marks),
despite getting 135.33 marks, was not selected. The prayer in
all five writ petitions is to quash Rule 8(4) of Gujarat Rules,2005
(as amended in 2011) specifying 40% qualifying marks for viva
voce. The related prayers are to quash the selection list and
conduct fresh interviews.
II. SUBMISSIONS
7. We have heard learned Senior Counsel, Mr. Ajit Kumar Sinha, Mr.
Yatinder Singh, Mr. Rameshwar Singh Malik, and learned counsel,
Ms. Shraddha Deshmukh, Mr. Pawanshree Agrawal and Mr. Rishabh
Sancheti for the writ petitioners. Learned counsel, Mr. Gautam
Narayan, and Mr. Purvish Jitendra Malkan, represented High Courts
of Patna and Gujarat respectively.
8. The fundamental challenge in these cases is 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.
9. The learned counsel on behalf of the writ petitioners contend that
the selection process is vitiated as the same is in contravention of
the law laid down in All India Judges (2002) where a three Judges
Bench after deliberating on the report dated 11.11.1999 submitted
by Shetty Commission, inter alia, in the matter of direct recruitment
of judicial officers, opined that subject to various modifications in
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the judgment, all other recommendations of the Commission are
accepted. As because Shetty Commission while suggesting the
procedure for selection of judicial officers had specifically indicated
that the interview segment shall carry 50 marks without any minimum
cut-off marks, the prescription of minimum marks in the viva-voce
test is contended to be arbitrary and unreasonable.
10. According to the learned counsel, the writ petitioners have better
aggregate score (written and viva-voce combined), but are deprived
of selection only because they failed to secure the qualifying marks
in the interview. It is additionally argued that the interview marks
are arbitrarily awarded and that is why the Shetty Commission
recommended doing away with the cut-off of marks, in the viva-voce
segment.
11. Mr. Ajit Kumar Sinha, learned senior counsel appearing in the lead writ
petition, highlights the discrepancies in the Bihar selection process.
Commenting on the meandering nature of the selection process under
the Patna High Court and the decision taken for the moderation of
marks and granting further relaxation of 5% in aggregate marks in
the written examination, Mr. Sinha argued that moderation of marks
should have been considered for the interview segment, as well for
facilitating selection of those who scored high marks in the written
examination but failed to qualify only for securing the below cut off
marks in the interview segment. The learned counsel questions the
fairness of the process which needed repeated course correction
such as resorting to moderation and the relaxation of aggregate
marks in the written test segment, as is clearly admitted in the
additional affidavit of the Patna High Court. It is therefore argued
that the Court should not only pass appropriate order on the faulty
selection process but should also allow appointment on the basis
of the aggregate score (written+viva) basis, without enforcing the
cut-off marks bar, in the viva segment.
12. According to the petitioner’s counsel, even after the declaration of the
final result on 8.4.2016, the Selection and Appointment Committee,
continued to act till September, 2016, by issuing corrigendum,
publishing fresh result of the written examination, conducting
interviews for a few candidates and publishing the ultimate result. It
is then argued by Mr. Sinha that if the Patna High Court wanted to
consider candidates from a larger pool, because of the large number
[2024] 6 S.C.R. 549

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

of vacancies, the relaxation of qualifying marks in the interview
segment should have been a natural option.
13. The learned counsel Mr. Pawanshree Agarwal in his turn submits
that the interview board members in the Gujarat Selection Board had
access to the written marks of the candidates and therefore it was
possible for the interview board to arbitrarily disqualify a meritorious
candidate, by awarding them less than the qualifying marks. It is
also submitted that the Rules were amended in 2011 only with the
consultation of the High Court of Gujarat but not the Gujarat Public
Service Commission. Therefore, such an amendment violates Article
234 of the Constitution of India.
14. In the same line, Mr. Rishabh Sancheti, learned counsel appearing in
the WP(C) No.1146/2022 argued that denial of appointment because
of below par score in the viva-voce segment, is discriminatory since
such power can be selectively used for knocking out deserving
candidates.
15. Projecting the contrary view, the learned counsel representing the
High Court of Patna, Mr. Gautam Narayan argued that the High Court
in order to make the best selection has the discretion to enforce a
stricter criteria than what was prescribed by the Shetty Commission.
According to Mr. Narayan, the procedure suggested by the Shetty
Commission is only recommendatory. The recommendations of the
Shetty Commission according to the learned counsel should be
construed as guidelines only. It is submitted that the Patna High
Court broadly adhered to the recruitment process for the District
Judiciary and only made it slightly more stringent. The objective was
to ensure the selection of meritorious judicial officers and ultimately
maintain the standard of the District Judiciary. It is also submitted
that the writ petitions at the instance of the unsuccessful candidates
is not maintainable.
16. Mr. Purvish Malkan, learned counsel for the High Court of Gujarat
while adopting the other submissions of Mr. Narayan, argues that
the power is vested with the High Court to evolve its own procedure
under Articles 233,234 and 235 of the Constitution. With this Mr.
Malkan supports the amendment of the Rules by the High Court.
The learned counsel refers to the High Court’s counter affidavit to
contend that the Internal Board members did not have access to
the marks in the written test while conducting the viva voce test.
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III.ISSUES
17. The issues to be considered here are:
i) 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?
ii) Whether the prescription of minimum marks for viva voce is
violative of Articles 14 and 16 of the Constitution of India?
iii) 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?
iv) 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?
IV. MAINTAINABILITY
18. At the outset, it is apposite to address the issue of the maintainability
of the writ petitions. It is argued by Mr. Gautam Narayan and Mr.
Purvish Jitendra Malkan learned counsel that after having participated
in the recruitment process, the writ petitioners having not succeeded,
cannot turn around and challenge the recruitment process or the vires
of the Recruitment Rules. It is submitted that all candidates knew
about the prescription of minimum marks for viva voce, well before
the selection process commenced and the principle of estoppel will
operate against the unsuccessful challengers. On the other hand,
the learned counsel representing the writ petitioners argued that
the principle of estoppel would have no application when there are
glaring illegalities2 in the selection process. Further, estoppel is not
applicable when the arbitrariness affects fundamental rights under
Articles 14 and 16 of the Constitution of India3.
19. As argued by the learned counsel for the High Courts, the legal
position is that after participating in the recruitment process, the

2 Raj Kumar v Shakti Raj (1997) 9 SCC 527
3 Basheshar Nath v. Commr. of Income-tax, Delhi, AIR 1959 SC 149; Olga Tellis v. Bombay Municipal
Corporation, AIR 1986 SC 180; Nar Singh Pal v. Union of India and Others, 2000 3 SCC 588.
[2024] 6 S.C.R. 551

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

unsuccessful candidates cannot turn around and challenge the
recruitment process4. However, it is also settled that the principle of
estoppel cannot override the law5. Such legal principle was reiterated
by the Supreme Court in Dr.(Major) Meeta Sahai Vs. Union of India6
where it was observed as under:
“17. However, we must differentiate from this principle
insofar as the candidate by agreeing to participate in the
selection process only accepts the prescribed procedure
and not the illegality in it. In a situation where a candidate
alleges misconstruction of statutory rules and discriminating
consequences arising therefrom, the same cannot be
condoned merely because a candidate has partaken in it.
The constitutional scheme is sacrosanct and its violation
in any manner is impermissible. In fact, a candidate
may not have locus to assail the incurable illegality or
derogation of the provisions of the Constitution, unless
he/she participates in the selection process.”
20. Guided by the above ratio, in matters like this, to non-suit the writ
petitioners at the threshold would hardly be reasonable particularly
when the alleged deficiencies in the process could be gauged only
by participation in the selection process.
21. The next question is whether the principle of res judicata is attracted
in these cases. Mr. Purvish Malkan, learned counsel for the High
Court of Gujarat brought to our notice that the validity of Rule 8(3)
of the Gujarat Rules,2005 (as amended on 23.6.2011) was earlier
challenged before the Supreme Court in WP(C) 291 of 2013. This
Court after completion of pleadings transferred the said writ petition
to the Gujarat High Court. Thereafter, the Gujarat High Court in a
detailed judgment in the Special Civil Application No.8793 of 2015,
upheld the validity of the amendment prescribing 40% cut-off marks for
interview. The Special Leave Petition arising from the said judgment
was dismissed by this Court on 30.1.2017.

4 Madan Lal v. State of J&K (1995) 3 SCC 486; Dhananjay Malik v. State of Uttaranchal (2008) 4 SCC 171;
Ramesh Chandra Shah v. Anil Joshi (2013) 11 SCC 309; Anupal Singh v State of Uttar Pradesh (2020)
2 SCC 173
5 Krishna Rai v Banaras Hindu University (2022) 8 SCC 713
6 (2019) 20 SCC 17
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22. In the above context, a Constitution Bench of this Court in Daryao v
State of UP7 (for short “Daryao”) unanimously held that the principle
of res judicata is one of universal application and since the final
judgment is binding on the parties thereto, an applicant under Article
226 cannot apply on the same grounds under Article 32, without getting
the adverse judgment set aside in appeal. However, a distinction
was made between cases where the application under Article 226
has been dismissed on merits and cases where it is dismissed on
a preliminary ground. It was further held that an Article 32 petition
would not be maintainable on the same facts and the same grounds.
23. The above ratio cannot however be applied stricto sensu in the present
facts. This is for the reason that it is not the same writ petitioner
who has approached this Court under Article 32 of the Constitution.
The Court here is confronted with a different set of facts, another
set of litigants who have raised additional contentions. Therefore,
the submission of Mr. Pawanshree Agrawal, learned counsel for the
writ petitioner that the writ petition should not be dismissed on the
ground of res-judicata, is found to be more reasonable. In any case,
the dismissal of a Special Leave Petition has no consequence on
the question of law8.
24. Let us now address the fundamental question as to whether
prescribing minimum marks for interview contravenes the ratio in
All India Judges (2002). To do this, it is necessary to bear in mind
the following contextual background.
V. GENESIS OF THE SHETTY COMMISSION
25. In 1989, the All-India Judges’ Association and its working President
filed a writ petition under Article 32 of the Constitution of India
seeking various reliefs for members of the District Judiciary focusing
on uniformity in service conditions. On 13.11.1991, a three-judge
bench speaking through Ranganath Misra CJ disposed of the said
writ petition in All India Judges Association v Union of India9, after
considering, inter alia, the issues relating to pay scales and service
conditions of the District Judiciary. The Supreme Court directed

7 [1962] 1 SCR 574 : AIR 1961 SC 1457
8 Inderjit Singh Sodhi v. Chairman, Punjab State Electricity Board (2021) 1 SCC 198.
9 [1991] Supp. 2 SCR 206 : (1992) 1 SCC 119
[2024] 6 S.C.R. 553

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States and Union Territories to separately examine and review the
pay structure. Aggrieved by the aforesaid judgment, the Union of
India and few State Governments filed review petitions before this
Court. In All India Judges Association v Union of India10(for short
“All India Judges (1993)), this Court on 24.8.1993, modified some
of the reliefs in the original judgment but, inter alia, recommended
that the service conditions of judicial officers should be reviewed
periodically by an independent Commission exclusively constituted
for the purpose. From 1993 onwards, this Court exercising its writ
remedy of ‘continuing mandamus’ had issued multiple directions
under the rubric of this case.
26. Pursuant to the aforementioned direction, the Union of India appointed
the first National Judicial Pay Commission on 21.3.1996 under
the chairmanship of Justice KJ Shetty. Justice Shetty Commission
submitted a preliminary report on 31.1.1998 and a final report on
11.11.1999. The terms of reference of the Commission are extracted
below:
“(a) To evolve the principles which should govern the
structure of pay and other emoluments of judicial
officers belonging to the subordinate judiciary all
over the country.
(b) To examine the present structure of emoluments
and conditions of service of judicial officers in the
States, Union territories taking into account the
total packet of benefits available to them and make
suitable recommendations having regard, among other
relevant factors, to the existing relativities in the pay
structure between the officers belonging to subordinate
judicial service vis-a-vis other civil servants.
(c) To examine and recommend in respect of minimum
qualifications, age of recruitment, method of
recruitment, etc., for judicial officers. In this context,
the relevant provisions of the Constitution and
directions of the Supreme Court in All India Judges
Association case and other cases may be kept in view.

10 [1993] Supp. 1 SCR 749 : (1993) 4 SCC 288
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(d) To examine the work methods and work environment
as also the variety of allowances and benefits in kind
that are available to judicial officers in addition to
pay and to suggest rationalization and simplification
thereof with a view to promoting efficiency in judicial
administration, optimizing the size of the judiciary etc.”
27. The above would indicate that the terms of reference essentially
focused on the evolution of principles that would govern the
formulation of pay structure and emoluments of judicial officers.
Suggestions were also expected on minimum qualifications, age,
and “method of recruitment” etc. for judicial officers. The final
report submitted on 11.11.1999 focused on the age of retirement,
nomenclature for judicial officers, equation of posts, inter-se seniority,
the age for direct recruitment, the establishment of All India Judicial
Service, etc.
28. Before extracting the relevant portion of the Shetty Commission report
which inter-alia, prescribed that no cut-off marks should be fixed for
the interview segment, a reference to the context is apposite:
“10.95 We have earlier set out the procedures followed
by the High Courts for selecting candidates for direct
recruitment. Most of the High Courts are having only Viva
Voce Test.
10.96 High Courts of Andhra Pradesh, Allahabad, Jammu
& Kashmir, Madhya Pradesh, Orissa, however, have
prescribed written test in addition to viva-voce.
10.97 The Commission has received innumerable
complaints that the selection by only viva-voce has more
often led to arbitrariness if not whimsical selection, unjust
if not unreasonable. With respect to High Courts, we do
not want to carry any such impression. But we do feel that
there is less transparency and objectivity in the selection
process.”
29. Since most of the High Courts were selecting candidates based only
on the viva voce test without conducting the written test, the absence
of transparency and objectivity in the interview process was noticed.
The Commission therefore opined that accepting the viva voce as
the sole selection mode could lead to arbitrariness. However, this
[2024] 6 S.C.R. 555

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by itself does not lend any clarity on how prescribing minimum cut-
off marks for viva voce together with the written test, could possibly
lead to arbitrariness in selection. In order to reduce subjectivity, the
Shetty Commission in its subsequent recommendation, delineated
the methodology for conducting viva voce as under:
“10.97. ….We would, therefore, like to recommend the
following procedure to reduce degrees of subjectivity and
arbitrariness:
(i) There shall be written examination followed by viva-
voce.
(ii) Written Examination must carry 200 marks on the
subject/subjects prescribed by the High Court. The
paper should be of a duration of minimum two hours.
(iii) The cut off marks in the Written Examination
should be 60% or corresponding grade for general
candidates and 50% or corresponding grade for SC/
ST candidates. Those who have secured the marks
above the cut off marks shall be called for viva-voce
Test.
(iv) The viva-voce Test should be in a thorough and
Scientific Manner and it should be taken anything
between 25 and 30 minutes for each candidate. The
viva-voce shall carry 50 marks. There shall be no cut
off marks in viva-voce test.
(v) The merit list will be prepared on the basis of marks/
grades obtained both in the Written Examination and
viva-voce.”
30. At this point, the fundamental fallacy in the argument of the writ
petitioners, as is pointed out by Mr. Gautam Narayan, the learned
counsel for the High Court of Patna becomes distinctly discernible.
If the above procedure recommended by the Shetty Commission
is to be implemented stricto sensu, the cut-off marks even for the
written examination can never be, below 60%. Therefore, 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-
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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. The writ
petitioners should not therefore 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. In other words,
the candidates cannot be allowed to “approbate and reprobate”11 in
the same breath. As such, it would be impermissible to seek dilution
of the Shetty Commission recommended criteria, only for the viva
voce segment.
31. The Shetty Commission recommended that the degree of subjectivity
and arbitrariness should be reduced and the selection should be
transparent. In clauses (vi) and (vii) of Para 10.99 of the Report, it
was specifically noted as under:
“(vi) Today, the viva voce examination can be more unfair
than the written examination in view of the fact that it is
decided on chance or impression in the shortest possible
time. Rural candidates are generally at a disadvantage in
this process. English-speaking candidates sometimes gain
advantage without they being superior in skills for the job. A
dominant member of the interview board may carry the day
to the disadvantage of many deserving candidates. These
things happen not necessarily because of any conscious
bias or disposition of members of the Board. This is inherent
in the process itself as it operates at present in many places.
The judiciary cannot afford to lose opportunities to get the
most outstanding candidate because of infirmities in the
selection system. As such, an alternative procedure by and
large modelled on the lines of the written examination is
recommended for the viva voce as well.
(vii) The viva-voce Examination will adopt the following
procedure:
(a) A proforma containing categories such as knowledge
/Skills/ Attitude/ Ethics/Communication /Character, etc.,

11 Pradeep Kumar Rai v Dinesh Kumar Pandey (2015) 11 SCC 493 (Para 17)
[2024] 6 S.C.R. 557

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

be developed (this will depend on what are the qualities
the judiciary is looking for in the prospective Judges being
interviewed) in advance and each category may be given
relative weightage (credits)in terms of marks. For example,
if the total Viva marks are 100, one may assign 10 marks
for knowledge /comprehension, 5 marks for ethics /attitude,
25 marks for skills of judging, 10 marks for communication
abilities, 10 marks for general knowledge, etc
(b) Each member of the Board including the Chairman will
be asked to assign marks for each category immediately
after a candidate is interviewed and before the next
candidate is called in. To strike some commonality or
relative parity in approach of members, the board may
have some general discussion before commencement of
interview on range of marks to be given for a particular
level of assessment. If necessary, some written guidelines
may also be circulated to be adhered to in assigning marks
at the time of interview.
(c) At the end of each day’s interview, the tabulator will
convert the numerical marks assigned to each category
into grades and then to grade values. This will then be
totalled up and the Cumulative Grade Value Average of
each candidate interviewed will be obtained.”
32. As rightly noted above, the English-speaking urban candidates
could possibly be at an advantage compared to those from a rural
background and those belonging to marginalized communities. It
must however be seen that the Shetty Commission report was in the
backdrop of High Courts selecting candidates simply on the basis
of viva voce without conducting written test. What is also essential
to note is that the Shetty Commission recommended evaluation
through grades instead of numerical marks, for the selection of judicial
officers, whether in written exam or viva voce. It also suggested that
there must be written guidelines for assigning marks at the time of
the interview.
VI. ISSUE WISE DISCUSSION
Issue No.1) Whether the prescription of minimum marks for viva
voce is in contravention of the law laid down by this Court in All
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India Judges (2002) which accepted certain recommendations of
the Shetty Commission?
33. The judgment in All India Judges (2002), will now have to be analyzed
in the above prefatory context. The Court therein accepted certain
recommendations made by the Shetty Commission while modifying or
rejecting a few others. In paragraph 27, the 3-judge bench speaking
through Justice B.N. Kirpal specifically noted thus:
“27. … At the same time, we are of the opinion that there
has to be certain minimum standard, objectively adjudged,
for officers who are to enter the Higher Judicial Service
as Additional District Judges and District Judges. While
we agree with the Shetty Commission that the recruitment
to the Higher Judicial Service i.e. the District Judge cadre
from amongst the advocates should be 25 per cent and
the process of recruitment is to be by a competitive
examination, both written and viva voce, we are of the
opinion that there should be an objective method of
testing the suitability of the subordinate judicial officers
for promotion to the Higher Judicial Service.”
[emphasis supplied]
34. The above would show that while dealing with the method of
recruitment, this Court 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.
A careful reading of the entire judgment would show that there is
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 issue as to whether there should be minimum qualifying
marks for viva-voce, did not engage the Court’s attention. Moreover,
even the Shetty Commission report did not provide any specific
reasoning as to why there should be no minimum marks for viva
voce. For this discussion, we may benefit by referring to the recent
decision of this Court in Dr.Kavita Kamboj v. High Court of Punjab
and Haryana and Others12(for short “Kavita Khamboj”). Chief Justice,
DY Chandrachud writing for the three-judge bench adverted to the

12 [2024] 2 SCR 1136 : 2024 SCC OnLine SC 254
[2024] 6 S.C.R. 559

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

earlier judgment in All India Judges (2002) and specifically noted
that the Court did not make any observation about the desirability
or otherwise of a minimum cut-off generally. The following passage
from the judgment is relevant here:-
“41. Now, it is true that certain recommendations of the
Shetty Commission in regard to the improvement of the
pay scales of the judicial officers were accepted by this
Court in the decision of this Court in All India Judges’
Association (supra). However, there was no specific
finding in paragraphs 27 and 28 of the All India Judges’
Association (supra) in regard to whether a cut-off should
be imposed for recruitment by way of regular promotion.
The Court had merely remarked that “there should
be an objective method of testing the suitability of the
subordinate judiciary”, without making any observation
about the desirability or otherwise of minimum cutoffs for
viva voce generally.”
[emphasis supplied]
35. Also in the aforementioned judgment, the bench noted that the High
Court cannot be precluded from framing Rules prescribing a minimum
cut-off based on the exigencies of the Service in the State.
36. In the present case, the writ petitioners additionally argued that by
virtue of paragraph 37 in All India Judges (2002), the Court accepted
even those recommendations which were not otherwise discussed
in the judgment. The said paragraph reads as under:
“37. Subject to the various modifications in this judgment,
all other recommendations of the Shetty Commission are
accepted.”
37. The above paragraph cannot persuade us to conclude that this Court
accepted the recommendation of the Shetty Commission to do away
with minimum marks for the interview. This is simply because in the
preceding paragraphs, the Court listed various recommendations
of the Shetty Commission. Dispensing with minimum marks for
interview however finds no mention in the said list. Without such
specific mention, it would be logical to say 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
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as having authoritatively pronounced on doing away with minimum
cut-off marks in the interview segment.
38. Let us now turn to the other cases where this Court had the occasion
to interpret the recommendations of the Shetty Commission in
situations where the recruitment rules were inconsistent with the
recommendations:
i) In Syed T.A. Naqshbandi v. State of J&K13, while giving primacy
to the Rules framed by the High Court vis-a-vis policy decisions
and Full Court Resolutions, the Supreme Court made the
following pertinent observations:
“8. Reliance placed upon the recommendations
of Justice Jagannatha Shetty Commission or the
decision reported in All India Judges’ Assn. v. Union
of India [(2002) 4 SCC 247 : 2002 SCC (L&S) 508]
or even the resolution of the Full Court of the High
Court dated 27-4-2002 is not only inappropriate but a
misplaced one and the grievances espoused based
on this assumption deserve a mere mention only to be
rejected. The conditions of service of members of any
service for that matter are governed by statutory rules
and orders, lawfully made in the absence of rules to
cover the area which has not been specifically covered
by such rules, and so long as they are not replaced
or amended in the manner known to law, it would
be futile for anyone to claim for those existing rules/
orders being ignored yielding place to certain policy
decisions taken even to alter, amend or modify them.”
ii) In Rakhi Ray v. High Court of Delhi14, the Supreme Court
concluded that the recommendations of the Commission even
if accepted by this Court were required to be incorporated in
the statutory Rules governing the service conditions of the
Judicial Officers. However, in the absence of statutory Rule to
deal with a particular issue, the High Courts are bound to give
effect to the decisions of the Supreme Court.

13 [2003] Supp. 1 SCR 114 : (2003) 9 SCC 592
14 [2010] 2 SCR 239 : (2010) 2 SCC 637
[2024] 6 S.C.R. 561

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

iii) Likewise in Mahinder Kumar v High Court of Madhya Pradesh15
(for short “Mahinder Kumar”), the challenge was to the procedure
adopted by the High Court of Madhya Pradesh for recruitment
of District Judge (entry level). While discussing paragraph 10.97
of the Shetty Commission, the 3 judge Bench speaking through
Justice FM Ibrahim Kalifulla, clarified as under:
“71. Sub-paras (i) to (v) of Para 10.97 of the Shetty
Commission Report have been set out to show how
while holding a written examination and a viva voce
examination, prescription of marks and other aspects
are to be followed. In fact those sub-paragraphs,
contained in Para 10.97 of the Shetty Commission
Report, can at best be stated to be a guideline, which
any High Court should keep in mind, while resorting to
selection for filling up the posts in the Higher Judicial
Service. In this context, in para 28 of All India Judges
Assn. (3) [(2002) 4 SCC 247 : 2002 SCC (L&S) 508] ,
this Court while prescribing the extent to which direct
recruitment to the Higher Judicial Service for the post
of Higher Judicial Service for the District Judges can
be made, also said that appropriate rules should be
framed by the High Courts at the earliest possible
time. Therefore, once the rules come into place it will
have to held that what all that can be expected of
the High Court, would be to follow the said rules. We
have in this judgment held that by virtue of Rule 7 and
Para 9(iv), the 1st respondent High Court had every
authority to prescribe the procedure, while making
the selection to the post of Higher Judicial Service
and that such procedure followed was also rational.”
In the above paragraph, the Court specifically noted that the
Shetty Commission recommendations can at best be considered
a guideline and that the High Court is vested with the required
power to evolve its own procedure for selection of judicial
officers. We must reiterate that a reference was also made to
paragraph 28 of All India Judges (2002) which provided for the

15 [2013] 13 SCR 884 : (2013) 11 SCC 87
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High Court to frame appropriate Rules. Moreover, the Shetty
Commission itself mentioned that the recommendation was
subject to the prescription of Rules by the High Court.
iv) In like manner, this Court in Sasidhar Reddy v State of AP16,
observed that the recommendations of the Shetty Commission
would have to be supported by the Rules for implementation. It
was clarified that when recommendations and the Rules are at
variance, the statutory Rules should be followed. The grievance
of the appellant therein was that it was not necessary to complete
35 years for being appointed to the post of District and Sessions
Judge (Entry Level) in the AP State Judicial Service. In this
context, the Court analysed the recommendations of the Shetty
Commission as under:
“14. The said concept, with regard to the minimum
age, has been brought in only from the report of the
Commission. For the reasons recorded in the report
of the Commission, the Commission was of the view
that the post of a District and Sessions Judge, being
an important post, which not only requires integrity
and intelligence but also requires maturity, the
Commission was of the view that a person not having
completed 35 years of age should not be appointed
to the said post. It is pertinent to note that this was
merely a recommendation or suggestion made by the
Commission. The recommendation or suggestion, if
not supported by the Rules, cannot be implemented.
In the instant case, the Rules are silent with regard to
the minimum age. It only speaks about the maximum
age. In the circumstances, one cannot read provisions
incorporated in the report of the Commission into the
Rules. The Rules are statutory and framed under the
provisions of Article 309 of the Constitution of India.
In our opinion, if the recommendations made by the
Commission and the statutory rules are at variance,
the provisions incorporated in the recruitment rules
have to be followed. It is pertinent to note that when

16 [2013] 12 SCR 985 : (2014) 2 SCC 158
[2024] 6 S.C.R. 563

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

such a question had been raised before this Court, in
Syed T.A. Naqshbandi case [Syed T.A. Naqshbandi
v. State of J&K, (2003) 9 SCC 592 : 2003 SCC
(L&S) 1151] , this Court had also observed that till
relevant recruitment rules are suitably amended so
as to incorporate the recommendations made by the
Commission, provisions of the statutory rules must
be followed.
17. In our opinion, the High Court was in error while
giving undue weightage to the recommendations made
by the Shetty Commission, especially when the Rules
do not provide for any minimum age for the appointment
to the post in question. Moreover, even Article 233 of the
Constitution of India is also silent about the minimum
age for being appointed as a District Judge.”
39. With the above pronouncements on the inter-play between the Shetty
Commission recommendations and the prevalent Rules, the following
logical deduction can be laid down: -
(i) In case of inconsistency between the recommendations and the
Rules, primacy should be given to the existing statutory Rules.
(ii) In the absence of existing Rules, the High Court should follow
the directions of this Court.
40. For the sake of completeness, we may however clarify that even
though the statutory Rules can be supplemented to fill in gaps17, the
High Court cannot act contrary to the Rules18.
41. With the above understanding, let us now examine the contention that
the judgments in Hemani Malhotra v. High Court of Delhi19(for short
“Hemani Malhotra”), and Ramesh Kumar v. High Court of Delhi20 (for
short “Ramesh Kumar”), are authorities for the proposition that there
can be no minimum marks for viva voce since the recommendations
of the Shetty Commission were accepted in All India Judges (2002).
Mr. Rishabh Sancheti, the learned counsel for the writ petitioners

17 Dr. Kavita Khamboj v High Court of Punjab and Haryana, 2024 SCC OnLine SC 254
18 Sivananda CT v High Court of Kerala (2024) 3 SCC 799
19 [2008] 5 SCR 1066 : (2008) 7 SCC 11
20 [2010] 2 SCR 256 : (2010) 3 SCC 104
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would additionally argue that the judgment in Mahinder Kumar (supra)
is per incuriam because despite being a subsequent decision, it does
not refer or consider the earlier relevant observations in Ramesh
Kumar (supra). Mr. Pawanshree Agarwal, the learned counsel would
submit that there is a dichotomy between the decisions in Mahender
Kumar (supra) and Ramesh Kumar (supra). While Mahender Kumar
(supra) endorses the Shetty Commission recommendations to be a
guideline, Ramesh Kumar (supra) notes that the recommendations
were accepted by this Court in All India Judges (2002).
42. The learned counsel for the writ petitioners have relied on the following
paragraph from Hemani Malhotra (supra):
“18. This Court notices that in All India Judges’ Assn.
v. Union of India [(2002) 4 SCC 247 : 2002 SCC (L&S)
508] subject to the various modifications indicated in the
said decision, the other recommendations of the Shetty
Commission were accepted by this Court. It means that
prescription of cut-off marks at viva voce test by the
respondent was not in accordance with the decision of this
Court. It is an admitted position that both the petitioners
had cleared written examination and therefore after adding
marks obtained by them in the written examination to the
marks obtained in the viva voce test, the result of the
petitioners should have been declared. As noticed earlier
16 vacant posts were notified to be filled up and only five
candidates had cleared the written test. Therefore, if the
marks obtained by the petitioners at viva voce test had
been added to the marks obtained by them in the written
test then the names of the petitioners would have found
place in the merit list prepared by the respondent. Under the
circumstances, this Court is of the opinion that the petitions
filed by the petitioners will have to be accepted in part.”
43. The factual backdrop of the aforementioned case was that there was
no prescription of minimum cut-off marks or viva voce in the Delhi
Higher Judicial Service Examination, 2006. Therefore, the issue
before the Court was whether the introduction of the requirement
of minimum marks for interview, after the selection process was
completed, would amount to changing the rules of the game after
the game was played. It is noteworthy that the Court in paragraph
15 of Hemani Malhotra (supra) itself notes that:
[2024] 6 S.C.R. 565

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

“15. There is no manner of doubt that the authority making
rules regulating the selection can prescribe by rules the
minimum marks both for written examination and viva
voce, but if minimum marks are not prescribed for viva
voce before the commencement of selection process, the
authority concerned, cannot either during the selection
process or after the selection process add an additional
requirement/qualification that the candidate should also
secure minimum marks in the interview. Therefore, this
Court is of the opinion that prescription of minimum marks
by the respondent at viva voce test was illegal.”
[emphasis supplied]
44. The above findings in Hemani Malhotra (supra) were in the absence
of rules prescribing minimum marks for interview. The facts here
are significantly different since the qualifying marks in the interview
segment was notified before commencement of the recruitment
process. In line with the settled principle of law as discussed above, in
case of inconsistency of the existing Rules with the recommendations,
the Rules will prevail.
45. Similarly in the other cited cases i.e., Ramesh Kumar (supra), the
Court noted that in the absence of any contrary provision in relevant
Rules, the competent authority can fix minimum qualifying marks,
both for the written and viva voce. It was held that if specific Rules
provide for minimum marks for viva voce, strict adherence to the
same is mandatory. Significantly, the judgment also elucidates the
importance of the viva voce test in bringing out a candidate’s overall
intellectual and personal qualities. Importantly in Hemani Malhotra
(supra) and Ramesh Kumar (supra), the fundamental issue was
whether the rules of the game could be changed midway through
the selection process. However, in the present matters, the writ
petitioners were aware of the rules of the game i.e. the prescription
of minimum marks, well before the selection process commenced.
This distinguishing feature cannot be overlooked. At this point, we
may also note that the present writ petitions were de-tagged from
the five-judge Constitution Bench matter21 concerning the issue
of changing the rules of the game which is currently reserved for

21 Tej Prakash Pathak And Ors. v. Rajasthan High Court And Ors. C.A. No. 2634/2013 & batch
566 [2024] 6 S.C.R.

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judgment. This has been fairly conceded by the learned senior counsel
for the petitioners, Mr. Ajit Kumar Sinha. Therefore, the challenge
here is not w.r.t. changing the rules of the game but the implication
of the Shetty Commission recommendations and the law laid down
in All India Judges (2002).
46. On the contention relating to the decision in Mahender Kumar (supra)
being per incuriam, it is plausible in the present facts to reconcile
both decisions i.e. Mahender Kumar (supra) and Ramesh Kumar
(supra). Crucially in both the decisions, it is emphasized that primacy
must be given to the existing statutory rules. The relevant passage
in Ramesh Kumar (supra) is extracted below:
“15. Thus, the law on the issue can be summarised to the
effect that in case the statutory rules prescribe a particular
mode of selection, it has to be given strict adherence
accordingly. In case, no procedure is prescribed by the rules
and there is no other impediment in law, the competent
authority while laying down the norms for selection may
prescribe for the tests and further specify the minimum
benchmarks for written test as well as for viva voce.”
47. The above paragraph explicitly provides that the Courts can fix
minimum qualifying marks for viva voce. In the present cases,
the Rules provided for the qualifying marks and as such the cited
judgments can be of no assistance for the writ petitioners.
48. The implications of the split judgment in Salam Samarjeet Singh vs.
High Court of Manipur at Imphal22 will next bear consideration. Justice
Banumathi in her judgment noticed that All India Judges (2002) is
sub silentio on the aspect of minimum cut off marks for the viva-voce
test. In his dissenting judgment, Justice Shiva Kirti Singh had not
expressed any disagreement on the said sub silentio observation
but left it open for determination in a future case. There again, the
dissent of Justice Singh was based on the fact that minimum cut
off was not prescribed in the recruitment Rules and were brought in
midway through the recruitment process, just prior to the stage of
interview, by resolution of the Court. Here however the prescription of
minimum cut-off in the recruitment process was notified for information

22 [2016] 9 SCR 771 : (2016) 10 SCC 484
[2024] 6 S.C.R. 567

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

of the candidates well before the commencement of the selection
process under the Patna High Court and also under the Gujarat High
Court and this distinguishing feature will have to be borne in mind.
49. 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. 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. 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).
Issue No. ii) Whether the prescription of minimum marks for viva
voce violates Articles 14 and 16 of the Constitution of India?
50. The learned counsel for the writ petitioners argued that the prescription
of minimum marks for viva voce is violative of Articles 14 and 16 of
the Constitution of India for being manifestly arbitrary. Reliance has
been placed on decisions of this Court which have expanded the
scope of examination under Article 14.23 In this context, we must
recall the oft-quoted passage from the five-judge bench decision in
E.P. Royappa v. State of T.N24, where the Court while dealing with
an allegedly discriminatory transfer order noted as under:
“85…….From a positivistic point of view, equality is
antithetic to arbitrariness. In fact, equality and arbitrariness
are sworn enemies; one belongs to the rule of law in a
republic while the other, to the whim and caprice of an
absolute monarch. Where an act is arbitrary, it is implicit
in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14,
and if it effects any matter relating to public employment,
it is also violative of Article 16. Articles 14 and 16 strike
at arbitrariness in State action and ensure fairness and
equality of treatment. They require that State action must

23 Shayara Bano v Union of India 2017(9) SCC 1; Joseph Shine v Union of India (2019) 3 SCC 39; Lok
Prahari v State of UP [Para 30,35,36,39] (2016) 8 SCC 389
24 [1974] 2 SCR 348 : (1974) 4 SCC 3
568 [2024] 6 S.C.R.

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be based on valid relevant principles applicable alike
to all similarly situate and it must not be guided by any
extraneous or irrelevant considerations because that
would be denial of equality. Where the operative reason
for State action, as distinguished from motive inducing
from the antechamber of the mind, is not legitimate
and relevant but is extraneous and outside the area of
permissible considerations, it would amount to mala fide
exercise of power and that is hit by Articles 14 and 16.
Mala fide exercise of power and arbitrariness are different
lethal radiations emanating from the same vice: in fact
the latter comprehends the former. Both are inhibited by
Articles 14 and 16.”
51. Commenting on the principle of non-arbitrariness in the words of
Article 14, another five-judge bench speaking through P.N. Bhagwati
J. in Ajay Hasia v. Khalid Mujib Sehravardi25, (for short “Ajay Hasia”)
made the following pertinent observations:
“16. …It must therefore now be taken to be well settled
that what Article 14 strikes at is arbitrariness because
any [ Under Article 32 of the Constitution] action that is
arbitrary, must necessarily involve negation of equality. The
doctrine of classification which is evolved by the courts is
not paraphrase of Article 14 nor is it the objective and end
of that article. It is merely a judicial formula for determining
whether the legislative or executive action in question is
arbitrary and therefore constituting denial of equality. If the
classification is not reasonable and does not satisfy the two
conditions referred to above, the impugned legislative or
executive action would plainly be arbitrary and the guarantee
of equality under Article 14 would be breached. Wherever
therefore there is arbitrariness in State action whether it
be of the legislature or of the executive or of an “authority”
under Article 12, Article 14 immediately springs into action
and strikes down such State action. In fact, the concept of
reasonableness and non-arbitrariness pervades the entire
constitutional scheme and is a golden thread which runs
through the whole of the fabric of the Constitution.”

25 [1981] 2 SCR 79 : (1981) 1 SCC 722
[2024] 6 S.C.R. 569

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

52. In Shayara Bano v Union of India26, after examining a long line of
precedents, the Supreme Court noted that a legislation can also be
struck down for being manifestly arbitrary, if it is “irrational, capricious
and/or without an adequate determining principle”. This principle of
manifest arbitrariness has been highlighted in other decisions of
this Court27. The issue to be examined now is whether the vice of
arbitrariness is attracted for the Rules prescribing qualifying marks
for the viva voce test.
53. The challenge raised on behalf of the writ petitioners to the
prescription of minimum marks for viva voce is not uncommon and
the precedents suggest that much turns on the nature of the post
and the extent of weightage given to viva voce. For the present
matters, the distinction between the Bihar Rules, 1951 governing
the selection process for higher judiciary, specifically District Judges,
and Rule 8(3) of the Gujarat Rules, 2005 which pertains to the
recruitment of both Civil and District Judges would need careful
consideration.
54. The relevant clauses of Bihar Rules,1951 dealing with the appointment
to the Higher judiciary are extracted below for ready reference:
“10. 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.”

26 [2017] 9 SCR 797 : 2017 (9) SCC 1
27 Association for Democratic Reforms v Union of India, 2024 INSC 113; Joseph Shine v Union of India
2019 (3) SCC 39; Lok Prahari v Union of India 2018(6) SCC 1; Shayara Bano v Union of India, 2017 (9)
SCC 1
570 [2024] 6 S.C.R.

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55. The significance of interview for selection in judicial service can be
best understood from the opinion of Justice O Chinappa Reddy J
in Lila Dhar v State of Rajasthan28:
“5. …It is now well recognised that while a written
examination assesses a candidate’s knowledge and
intellectual ability, an interview test is valuable to assess
a candidate’s overall intellectual and personal qualities.
While a written examination has certain distinct advantage
over the interview test there are yet no written tests
which can evaluate a candidate’s initiative, alertness,
resourcefulness, dependableness, cooperativeness,
capacity for clear and logical presentation, effectiveness,
in discussion, effectiveness in meeting and dealing with
others, adaptability, judgment, ability to make decision,
ability to lead, intellectual and moral integrity. Some of
these qualities may be evaluated, perhaps with some
degree of error, by an interview test, much depending on
the constitution of the interview Board.”
56. The above view has been consistently endorsed by later decisions
of this Court29. Notably in Tanya Malik v Registrar General of High
Court30, in the context of recruitment to the post of District Judge, it
was held that prescribing minimum marks for interview is not only
desirable but also necessary. More recently in Kavita Khamboj
(supra), a 3-judge bench upheld the requirement of 50% minimum
marks in interview for promotion as District Judges. Making a succinct
distinction between judicial appointments at the junior level and
higher levels of judiciary, this Court speaking through Chief Justice
DY Chandrachud observed the following:
“44….the interview in such cases is not being held at the
very threshold of the service, while making recruitments
at the junior-most level. Rather, the interview is being
held to fill up a senior position in the District Judiciary,
that of an Additional District and Sessions Judge. Such

28 [1982] 1 SCR 320 : (1981) 4 SCC 159
29 KH Siraj v High Court of Kerela (2006) 6 SCC 395; State of UP v Rafiquiddin, 1987 Supp SCC 410;
Taniya Malik v Registrar General of the High Court of Delhi (2018) 14 SCC 129; Pranav Verma v The
Registrar General of High Court (2020) 15 SCC 377
30 (2018) 14 SCC 129
[2024] 6 S.C.R. 571

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officers, based on their prior experience, must be expected
to demonstrate a proficiency in judicial work borne from
their long years of service. The purpose of the interview
for officers in that class is to assess the officer in terms
of the ability to meet the duties required for performing
the role of an Additional District and Sessions Judge.
Consequently, there would be a reasonable and valid basis,
if the High Court were to do so, to impose a requirement
of a minimum eligibility or cut-off both in the written test
and in the viva voce separately.”
57. The recruitment procedure should not only test the candidate’s
intellect but also their personality, for appointment to posts in the
higher judiciary. The writ petitioners have placed great reliance on the
judgment in Ajay Hasia (supra) where it is canvassed that providing
for more than 15% of the total marks for interview, is arbitrary and
constitutionally invalid. In Ajay Hasia (supra) the challenge was to
the validity of admissions made to the Regional Engineering College
for the academic year 1979-80. Out of 150 total marks, 50 marks
were earmarked for interview. Commenting on the validity of viva
voce as a permissible test, the Court observed thus:
“But, despite all this criticism, the oral interview method
continues to be very much in vogue as a supplementary
test for assessing the suitability of candidates wherever
test of personal traits is considered essential. Its relevance
as a test for determining suitability based on personal
characteristics has been recognised in a number of
decisions of this Court which are binding upon us.”
58. It was further noted that:
“The oral interview test is undoubtedly not a very
satisfactory test for assessing and evaluating the capacity
and calibre of candidates, but in the absence of any better
test for measuring personal characteristics and traits, the
oral interview test must, at the present stage, be regarded
as not irrational or irrelevant though it is subjective and
based on first impression, its result is influenced by many
uncertain factors and it is capable of abuse. We would,
however, like to point out that in the matter of admission
to college or even in the matter of public employment, the
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oral interview test as presently held should not be relied
upon as an exclusive test, but it may be resorted to only
as an additional or supplementary test and, moreover,
great care must be taken to see that persons who are
appointed to conduct the oral interview test are men of
high integrity, calibre and qualification.”
59. It was ultimately concluded that providing for as high a percentage
as 33.5% for the interview segment, was infecting the admission
procedure with the vice of arbitrariness. For the facts of the present
case, the writ petitioners’ contention on violation of the aforementioned
dictum in Ajay Hasia (supra) is adequately answered in Lila Dhar
(supra) where the three-judge bench considered the issue of selection
of Munsifs for Rajasthan Judicial Service. The selection was to be
made through written examination as well as interview where 25%
marks were earmarked for the viva voce segment. Distinguishing the
judgement in Ajay Hasia (supra) which was in the context of college
admissions, the Court in Lila Dhar (supra) pertinently opined as under:
“The observations of the Court were made, primarily in
connection with the problem of admission to colleges,
where naturally, academic performance must be given
prime importance. The words “or even in the matter of public
employment” occurring in the first extracted passage and
the reference to the marks allocated for the interview test
in the Indian Administrative Service examination were not
intended to lay down any wide, general rule that the same
principle that applied in the matter of admission to colleges
also applied in the matter of recruitment to public services.
The observation relating to public employment was per
incuriam since the matter did not fall for the consideration
of the Court in that case. Nor do we think that the Court
intended any wide construction of their observation. As
already observed by us the weight to be given to the
interview test should depend on the requirement of the
service to which recruitment is made, the source material
available for recruitment, the composition of the interview
Board and several like factors. Ordinarily recruitment to
public services is regulated by rules made under the proviso
to Art. 309 of the Constitution and we would be usurping
a function which is not ours, if we try to redetermine the
[2024] 6 S.C.R. 573

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appropriate method of selection and the relative weight
to be attached to the various tests.”
60. The above opinion in Lila Dhar (supra) makes it clear that the ratio
in Ajay Hasia (supra), in the context of college admission, may not
have much bearing on recruitment for judicial vacancies where oral
interviews play an important role to test the personality and caliber
of the aspirant to judicial posts.
61. Let us now examine the specific challenge questioning the
constitutionality of Rule 8(3) of Gujarat Rules,2005 which deals with
both District Judges and Civil Judges. The Rule 8(3) reads as under:
“The minimum qualifying marks in the Viva-voce conducted
for recruitment to the cadre of District Judge and Civil
Judge, shall be forty percent {40%) of marks.”
62. To strike down Rule 8(3) of Gujarat Rules,2005 under Article 14,
the argument of the petitioners is that a classification is sought to
be created between meritorious and non-meritorious candidates
since meritorious candidates who have worked hard to score good
marks in the written test may not succeed since the interviewing
committee can award below par marks to a candidate, based
on their subjective evaluation. The second argument is on the
issue of the absence of a level playing field for those from a
marginalized background suggesting that such candidates will be
at a disadvantage. In response the learned counsel for the High
Court of Gujarat submits that the objective is to select the best
possible candidates and the High Court Judges who are conducting
the interviews can certainly test the real potential of a candidate,
irrespective of their background.
63. A relevant question here is whether those who had high marks in the
written test can by itself be considered in the “meritorious” category?
This is a debatable issue since the high scores for the written test
by itself do not determine the merit and suitability of an aspirant.
The performance would also depend on the social, economic,
and cultural capital of the candidate. Access to resources such as
coaching institutes, quality school education, financial stability, time
and flexibility, networking opportunities, mentorship, and access
to relevant study materials, are vital factors which also manifestly
contribute to the performance in the written test. In the context, the
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observations of this Court in a case relating to reservation in promotion
in B.K. Pavitra v Union of India31 is illuminating where the aspects
of “merit” and “efficiency” was discussed in the following passage:-
“134. It is well settled that existing inequalities in society
can lead to a seemingly ―neutral system discriminating in
favour of privileged candidates. As Marc Galanter notes,
three broad kinds of resources are necessary to produce
the results in competitive exams that qualify as indicators
of ―merit.
These are: ―…
(a) economic resources (for prior education, training,
materials, freedom from work, etc.);
(b) social and cultural resources (networks of contacts,
confidence, guidance and advice, information, etc.); and
(c) intrinsic ability and hard work…‖ [Galanter M.,
Competing Equalities : Law and the Backward Classes in
India, (Oxford University Press, New Delhi 1984), cited by
Deshpande S., Inclusion versus excellence : Caste and
the framing of fair access in Indian higher education, 40 :
1 South African Review of Sociology 127-147.]
135. The first two criteria are evidently not the products of
a candidate’s own efforts but rather the structural conditions
into which they are borne.”
64. As can be seen from above, the reliance on competitive exams or
written tests as the sole determinant of merit is 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”32, overlooking how factors such
as socio-economic background, caste, gender, and other structural
inequalities can shape opportunities and outcomes.
65. The written test cannot possibly capture the full spectrum of the
individual’s abilities and potential. An interview can also provide a

31 [2017] 1 SCR 631 : (2019) 16 SCC 129
32 Michael J Sandel, The Tyranny of Merit: What’s become of the Common Good? (Allen Lane, 2020)
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medium for marginalized candidates to showcase their talents in ways
which a written test may not possibly allow. However, a caveat may
be necessary here that candidates hailing from English-speaking
urban environments might possess linguistic fluency and familiarity
with cultural norms typically associated with interviews and therefore
are likely to navigate the viva voce segment with relative ease.
Conversely, candidates from marginalized communities may face
challenges due to their lack of exposure to urban settings. This is
further exacerbated by conscious and unconscious bias on grounds
of gender, religion, caste etc. But can we ignore the intrinsic ability
of the members of the interview panel constituted by the High Court
judges to separate the grain from the chaff? This Court would like
to believe that the members of the interview board can provide a
level-playing field during the interview process for those who come
from a disadvantaged background, to assess the true merit and
potential of the interviewees. The solution lies in the interviewing
members being aware and sensitive to alleviate bias in the process
of Interview. However, the apprehension of bias cannot be the sole
ground to strike down a Rule.
66. As is seen from the precedents, only the overriding weightage to
the viva-voce segment has been frowned upon by this Court but the
prescription of reasonable qualifying cut-off marks33 is not considered
discriminatory. In any case, administrative law remedies are always
available to secure relief in cases where abuse of power is seen.
When the minimum cut-off of 20% for the Bihar recruitment and 40%
for the Gujarat recruitment are taken into account, those cannot be
considered to provide a high threshold if one keeps in mind that
the recruitment is for selection of judicial officers. In the context,
the object of viva voce set out in Rule 8(5) of Gujarat Rules, 2005
deserves attention and is extracted:
“(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.”

33 Manish Kumar Shahi v State of Bihar (2010) 12 SCC 576
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67. The above would show that there is a reasonable and direct nexus
with the object sought to be achieved i.e. the appointment of well-
rounded judicial officers. The prescription of minimum cut off is also
not perceived to be of such a nature that it reeks of irrationality, or
was capricious and/or without any adequate determining principle.
It does not appear to be disproportionate so as to adversely affect
“meritorious” candidates, as has been argued. It is certainly not
manifestly arbitrary, or irrational or violative of Article 14 of the
Constitution of India. 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.
68. On the above parameters, it can’t be said that the concerned
recruitment Rules are unconstitutional. It may also be observed
here that there is no violation of the legitimate expectation of the
writ petitioners so as to fail the test under Article 14. In Sivananda
CT v High Court of Kerala34 which is cited, the factual backdrop
was different. The Kerala State Higher Judicial Services Rules 1961
stipulated that the direct recruitment from the Bar shall be “on the
basis of aggregate marks/grade obtained in a competitive examination
and viva voce conducted by the High Court.” It was only after the
conduct of viva voce that the High Court decided to have a minimum
cut off, as a qualifying criterion. The distinguishing feature is that
neither the provisions of the Kerala State Higher Judicial Services
Special Rules,1961 nor the exam scheme or recruitment notification
therein stipulated any cut-off for the viva voce. Therefore, it was
in that context that the Court held that the minimum cut-off marks
was manifestly arbitrary for frustrating the substantive legitimate
expectation of the candidates under Article 14 of the Constitution.

34 [2023] 11 SCR 674 : (2024) 3 SCC 799
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Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

Therefore, the cited case can have no application in the present
matters where the cut off marks in the viva voce was notified before
commencement of the selection process.
Issue No.iii) 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?
69. For this, it needs to be seen whether there are proven allegations of
violations of statutory Rules, bias, malafide or fraud35. In this regard,
the four-judge bench in Ashok Kumar Yadav v. State of Haryana36,
discussed the threshold for invalidating the entire selection process
as under:
“21. …But suspicion cannot take the place of proof and
we cannot strike down the selections made on the ground
that the evaluation of the merits of the candidates in the
viva voce examination might be arbitrary. It is necessary
to point out that the Court cannot sit in judgment over the
marks awarded by interviewing bodies unless it is proved or
obvious that the marking is plainly and indubitably arbitrary
or affected by oblique motives. It is only if the assessment is
patently arbitrary or the risk of arbitrariness is so high that a
reasonable person would regard arbitrariness as inevitable,
that the assessment of marks at the viva voce test may
be regarded as suffering from the vice of arbitrariness.”
70. Guided by the above principle, the steps taken by the High Court after
the issuance of advertisement as mentioned in the additional affidavit
of Patna High Court summarized below, would bear consideration.
i) The preliminary examination was held on 22.3.2015. 6,771
candidates appeared for the same.
ii) The main exam was held on 12.7.2015 and over 1000 candidates
appeared for the same.
iii) The affidavit notes that only 15 candidates obtained qualifying
marks in the written exam i.e. above 55%. However, Mr. Gautam

35 K.H. Siraj v. High Court of Kerala (2006) 6 SCC 395; Inderpreet Singh Kahlon v. State of Punjab (2006)
11 SCC 356
36 [1985] Supp. 1 SCR 657 : (1985) 4 SCC 417
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Narayan, learned counsel for the Patna High Court has clarified
that this is a typographical error and only 3 candidates had, in
fact, obtained qualifying marks. This is in consonance with the
RTI Reply dated 10.2.2017.
iv) In order to fill up vacancies, the Selection and Appointment
Committee of the High Court examined 20 answer sheets of
each paper at random. It was decided that there was a need
for moderation. Accordingly, the Selection and Appointment
Committee comprising of 5 judges of the High Court in its
meeting dated 8.1.2016 proposed for moderation by adding
4% marks in Paper I & 6% marks in Paper II.
v) Despite moderation, only few candidates secured above 55%
marks in aggregate. Thereafter, the Full Court decided to permit
relaxation of 5% in the aggregate marks under proviso to Clause
10 of Appendix C of the 1951 Rules.
vi) After relaxation of marks to 50%, 81 candidates were found
qualified in the written examination and results were uploaded
on 22.1.2016.
vii) The interviews for those who scored 50% in the written, were
conducted on 19.2.2016, 20.2.2016,22.2.2016 and 23.2.2016
by a Board of 5 judges of the High Court. Eventually, only 9
candidates could secure 10 marks or more out of 50 total marks
in the interview. The said 9 persons upon Full Court approval
were appointed by the Bihar Government on 17.5.2016.
71. After issuance of notice in the Bihar writ petition, the concerned
High Court officials while preparing the response, noticed
discrepancies during decoding, tabulation and collation of marks
and arranged for re-verification of the selection data. Thereafter,
the following directions were issued by the Chairperson of the
Committee in consultation with the Acting Chief Justice of the
Patna High Court:
“In view of summer vacations, the Committee is not
available. Discussed the matter with Hon’ble ACJ on
phone. Being a serious lapse, the following steps need
be taken immediately:
1) Under personal supervision of Registrar (App ), Sr.
Programmer, Nitesh will undertake the entire exercise
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of decoding, collation, and tabulation a fresh. In case
of any assistance required Registrar General will be
consulted. Prepare fresh tabulation, identifying lapses,
submit report.
2) Registrar General will conduct enquiry to find out where
was the lapses and consequently who was responsible.
On this report being submitted, to initiate disciplinary
proceedings against the person responsible for these
lapses. Registrar General will issue show cause and
Brother Ajay Kumar Tripathi will conduct the disciplinary
proceedings. Put up before Hon’ble ACJ no sooner he is
available. Matters to be dealt with utmost urgency and
confidentiality.”
72. After detailed verification of the record, it was found that 3 more
candidates had obtained qualifying marks in the written examination
for the purpose of viva voce having roll nos. 1111006603, 1111006636
and 1111006667 respectively. It was also found that 4 candidates had
not obtained the qualifying marks in the written examination, though
they were earlier shown to be qualified. Therefore, a corrigendum
was issued on 30.6.2016 by which the High Court cancelled the
candidatures of 4 unqualified candidates and also called the 3 other
candidates for the viva-voce, who had obtained qualifying marks.
The interview of the 3 candidates was held on 19.7.2016. However,
none of them could qualify.
73. Mr. Ajit Sinha, learned Senior Counsel had argued that these
irregularities are so egregious that it would vitiate the entire
selection process. While conceding that moderation did benefit the
writ petitioners, it is still argued that the defective procedure must
persuade this Court to set aside the selection process in Bihar. Per
Contra, Mr. Gautam Narayan, learned counsel for the High Court of
Patna argues that the discrepancies in Roll Numbers were due to the
mistake of the candidates themselves. As regards moderation, Mr.
Narayan, produced a chart before us containing the marks obtained
by the candidates before and after moderation to show that it enured
to the benefit of the writ petitioners.
74. Whether moderation of marks was legally permissible, would require
a reference to the relevant Rules and Advertisement. The relevant
Clause 13 of Appendix C of Bihar Rules,1951 is extracted below: -
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“13. The Standing committee of the High Court, Patna may
issue orders/directions in case of any doubt and difficulty”
The Para 10 of the 2015 Advertisement reads as under:
“10. The High Court shall have the power to make any
relaxation in or exemption from the aforesaid terms and
condition in the interest of Judiciary.”
75. The above makes it clear that the High Court has been vested
with requisite powers to provide clarification, relaxation and even
exemption in the interest of the Judiciary. The words “relaxation”
as also the general power to issue orders/directions in case of any
“difficulty”, would in our view permit the process of moderation in order
to provide for the adequate number of candidates for the interview
test. The Clause 13 of Appendix C of the Bihar Rules read with Para
10 of the Advertisement provide adequate elbow room to the High
Court to overcome difficulties in the selection process. It is nobody’s
case that the corrective measures were not bonafide. Moreover, the
process adopted is consistent with the Rules.
76. In a moderation exercise, addition of marks and/or deduction of
marks is envisaged. This Court in Sanjay Singh v UP Public Service
Commission37, laid down certain guidelines for moderation of marks in
judicial services examination. Preferring the method of “moderation”
over “scaling”, it was noted that moderation is a more viable technique
to reduce the variability of the examiners.
77. In the same context, it would be useful to refer to the judgment
in Pranav Verma & Ors. v. Registrar General of the High Court of
Punjab & Haryana38 where this Court underscored the option of
using moderation or normalization of marks, to ensure the selection
of adequate number of candidates. In the said case, this Court had
appointed Justice (Retd.) A.K. Sikri, a former Supreme Court judge
to examine the selection process in a recruitment exercise where
adequate number of candidates had not qualified. The learned
judge verified the selection process but found no fundamental flaws.
However, deficiencies were found in the evaluation of the Civil Law-I
paper as only 8.5 minutes were available to the candidates to answer

37 [2007] 1 SCR 235 : (2007) 3 SCC 720
38 [2019] 15 SCR 43 : (2020) 15 SCC 377
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for each question. This was noted to be insufficient for the descriptive
type questions and the lengthy paper. It was also noticed that marking
in the Civil Law-II paper was too stringent, with the highest score
being 95 out of 200 (47.5%) and the evaluators, as can be noticed,
expected lengthy answers for each question without considering
the limited time available for the candidates. Despite noting these
facts, the Supreme Court held that the selection process need not
be invalidated. Instead to save the selection, the Court directed that
grace marks be awarded to all examinees.
78. The above would show that if certain resolvable deficiencies are
noticed in the selection process, the High Court has the elbow room
to take corrective measures. The process of moderation can always
be exercised bona fide if it uniformly benefits all the candidates. In
the context, the chart produced by the learned counsel for the High
Court makes it clear that moderation, in fact, benefited the present
writ petitioners to facilitate their participation in the Interview round.
The reduction of aggregate marks from 55% to 50% is traceable to
the proviso to Clause 10 of Appendix – ‘C’ of the Bihar Rules 1951. A
modest variation in the sequence of events narrated in the RTI Reply
is shown but even in such situation the additional affidavit makes it
clear that following the moderation exercise, the aggregate marks
were reduced to 50%, in accordance with the Rules.
79. The argument that for the interview also the qualifying marks should
have been reduced just like in the written test is not acceptable since
the Rules itself provided for a reduction in the aggregate marks in
the written test. The proviso concerning relaxation is contained in
Clause 10 which deals only with the written test. The Court in any
case should not step into the shoes of the Selection Committee.
The assessment and evaluation of the candidates appearing before
the Selection Committee/Interview Board should best be left to the
members of the Committee unless it is violative of the statutory Rules
or tainted with ill motive. The decision of the Selection Committee was
approved by the Full Court for increasing the number of candidates
available for final selection.
80. On examination of the subsequent steps taken by the High Court after
conducting the exam, we do not find any mala fide or statutory violation
so as to vitiate the entire selection process in Bihar. Similarly, in the
Gujarat cases, besides making vague allegations, the petitioners have
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not presented any material to demonstrate any malicious intent or
bias on the part of the selection Committee in the interview process.
Thus, the selection process is not found to be tainted.
Issue No. iv) Whether non-consultation with the Public Service
Commission as required under Article 234 of the Constitution for
amending the selection Rules stipulating minimum viva voce marks
is rendered void?
81. Mr. Pawanshree Agarwal, the learned counsel for the writ petitioner
has argued that in IA 20279 of 2022 in WP(C) 663 of 2021, an
additional challenge on account of violation of Article 234 has been
raised. It is argued that the prescription of minimum qualifying marks
in the viva-voce under Rule 8(3) as amended in 2011 was only in
consultation with the High Court of Gujarat but not with the Gujarat
Public Service Commission. Therefore, in view of the mandatory
requirement of Article 234, the Rules must be declared to be void.
On the other hand, Mr. Malkan on behalf of the Gujarat High Court
contended that the Public Service Commission itself requested for
exemption as per the Gujarat Public Service Commission (Exemption
from Consultation) Regulations,1960 framed under the proviso to
Article 320(3) of the Constitution of India. Additionally, Ms. Deepanwita
Priyanka who appeared through video conferencing for the State of
Gujarat, read out the contents of a letter dated 10.6.2005 written
by the Gujarat Public Service Commission stating that the proposed
post of “Civil Judge”, does not fall within its jurisdiction.
82. To appreciate the above contentions, it would be helpful to note
the relevant portion of the Gujarat Rules,2005 prior to the 2011
amendment:
“In exercise of the powers conferred by the proviso to
Article 309 read with Article 234 of the Constitution of
India, the Governor of Gujarat, after consultation with
the High Court of Gujarat and the Gujarat Public Service
Commission, and in supersession of the Gujarat Judicial
Services Recruitment Rules, 1961 hereby makes the
following Rules regulating the Recruitment to the Gujarat
State Judicial) Service.”
83. The relevant portion of Gujarat Rules,2005(as amended in 2011) is
next extracted:
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“In exercise of the powers conferred by the proviso to
article a) read with Articles 233 and 234 of the Constitution
of India, the Governor of Gujarat after consultation with
the High Court of Gujarat hereby makes the following
rules further to amend the Gujarat State Judicial Service
Rules, 2005.”
84. The omission of the words “and the Gujarat Public Service
Commission” in the 2011 Rules is a relevant aspect, that requires
attention. Articles 233, Article 234 and 235 in the Constitution which
deals with “Subordinate Courts” would bear consideration here.
Article 233 provides for the appointment of District Judges without
requirement of consultation with Public Service Commission. The
Article 234 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 provides for the control of the
High Court over the Subordinate Courts. Article 234 is relevant for
our purpose:
“Appointment of persons other than district judges to the
judicial service of a State shall be made by the Governor
of the State in accordance with rules made by him in that
behalf after consultation with the State Public Service
Commission and with the High Court exercising jurisdiction
in relation to such State”
85. Since the Rules were framed as per the proviso to Article 309, it is
also extracted below for ready reference:
“309. Recruitment and conditions of service of persons
serving the Union or a State
Subject to the provisions of this Constitution, Acts of the
appropriate Legislature may 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:Provided that it shall be competent
for the President or such person as he may direct in the
case of services and posts in connection with the affairs
of the Union, and for the Governor of a State or such
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person as he may direct in the case of services and posts
in connection with the affairs of the State, to make rules
regulating the recruitment, and the conditions of service
of persons appointed, to such services and posts until
provision in that behalf is made by or under an Act of the
appropriate Legislature under this article, and any rules
so made shall have effect subject to the provisions of any
such Act.”
86. This Court has had the occasion to examine the aforementioned
provisions in the Articles in multiple decisions. While it is true that
Article 234 mandates consultation with the Public Service Commission
and the High Court, the five-judge Constitution Bench of this Court in
State of Bihar v. Bal Mukund Sah39 (for short “Bal Mukund”), noted
that there is a fine distinction in the nature of consultation between
the two:
“51. As seen earlier, consultation with the High Court as
envisaged by Article 234 is for fructifying the constitutional
mandate of preserving the independence of the
Judiciary, which is its basic structure. The Public Service
Commission has no such constitutional imperative to be
fulfilled. The scope of the examining body’s consultation
can never be equated with that of consultation with the
appointing body whose agent is the former. It is also
pertinent to note that the essence of consultation is the
communication of a genuine invitation to give advice
and a genuine consideration of that advice which in turn
depends on sufficient information and time being given
to the party concerned to enable it to tender useful
advice. It is difficult to appreciate how the Governor
while consulting the Public Service Commission before
promulgating the rules of recruitment under Article 234
has to solicit similar type of advice as he would solicit
from the High Court on due consultation. The advice
which in the process of consultation can be tendered by
the Public Service Commission will confine itself to the
constitutional requirements of Article 320. They are entirely

39 [2000] 2 SCR 299 : (2000) 4 SCC 640
[2024] 6 S.C.R. 585

Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

different from the nature of consultation and advice to be
solicited from the High Court which is having full control
over the Subordinate Judiciary under Article 235 of the
Constitution and is directly concerned with the drafting of
efficient judicial appointments so that appropriate material
will be available to it through the process of selection
both at the grass-root level and at the apex level of the
District Judiciary. Consultation, keeping in view the role
of the High Court under Article 234 read with Article 235,
stands on an entirely different footing as compared to the
consultation with the Public Service Commission which
has to discharge its functions of an entirely different type
as envisaged by Article 320 of the Constitution.”
87. 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 of India. 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.
88. With the above understanding of the law, let us now refer to Article
320 of the Constitution of India which is extracted below:
“Functions of Public Service Commission
(1) It shall be the duty of the Union and the State Public
Service Commissions to conduct examinations for
appointments to the services of the Union and the
services of the State respectively.
(2) It shall also be the duty of the Union Public Service
Commission, if requested by any two or more
States so to do, to assist those States in framing
and operating schemes of joint recruitment for any
services for which candidates possessing special
qualifications are required.
(3) The Union Public Service Commission or the State
Public Service Commission, as the case may be,
shall be consulted—
a. on all matters relating to methods of recruitment
to civil services and for civil posts;
586 [2024] 6 S.C.R.

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b. on the principles to be followed in making
appointments to civil services and posts and
in making promotions and transfers from one
service to another and on the suitability of
candidates for such appointments, promotions
or transfers;
c. on all disciplinary matters affecting a person
serving under the Government of India or
the Government of a State in a civil capacity,
including memorials or petitions relating to such
matters;
d. on any claim by or in respect of a person who is
serving or has served under the Government of
India or the Government of a State or under the
Crown in India or under the Government of an
Indian State, in a civil capacity, that any costs
incurred by him in defending legal proceedings
instituted against him in respect of acts done
or purporting to be done in the execution of his
duty should be paid out of the Consolidated
Fund of India, or, as the case may be, out of
the Consolidated Fund of the State;
e. on any claim for the award of a pension in
respect of injuries sustained by a person while
serving under the Government of India or the
Government of a State or under the Crown in
India or under the Government of an Indian
State, in a civil capacity, and any question as
to the amount of any such award,
and it shall be the duty of a Public Service
Commission to advise on any matter so referred
to them and on any other matter which the
President, or, as the case may be, the Governor
of the State, may refer to them:
Provided that the President as respects the
all- India services and also as respects other
services and posts in connection with the affairs
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of the Union, and the Governor, as respects other
services and posts in connection with the affairs
of a State, may make regulations specifying
the matters in which either generally, or in any
particular class of case or in any particular
circumstances, it shall not be necessary for a
Public Service Commission to be consulted.
Nothing in clause (3) shall require a Public
Service Commission to be consulted as respects
the manner in which any provision referred to
in clause (4) of article 16 may be made or as
respects the manner in which effect may be
given to the provisions of article 335.
All regulations made under the proviso to clause
(3) by the President or the Governor of a State
shall be laid for not less than fourteen days
before each House of Parliament or the House
or each House of the Legislature of the State,
as the case may be, as soon as possible after
they are made, and shall be subject to such
modifications, whether by way of repeal or
amendment, as both Houses of Parliament or
the House or both Houses of the Legislature of
the State may make during the session in which
they are so laid.”
[emphasis supplied]
89. The source for the consultation with the “Public Service Commission”
under Article 234 of the Constitution of India is to be traced from Article
320 of the Constitution which deals with the “Functions of Public Service
Commission”. In this regard, Justice Hidayatullah in Constitutional Law
of India40 had this to say on the nature of consultation:
“The Consultation with the High Court is imperative.
The insistence on the consultation with the High Court
is obviously attributable to the recognition of that source

40 M. Hidayatullah(Ed), Constitutional law of India (The Bar Council of India Trust in association with Arnold-
Heinemann Publishers, 1984) Vol. 2,147
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as one from which the most useful advice is obtainable
on a matter concerning a service under its own control.
Requirement to consult the Public Service Commission is
equally understandable for the reason that the Commission
is enjoined by Article 320 to conduct examinations for
appointment to the Services under the State.”
90. This Court has consistently held41 that the High Court should be
assigned primacy in the process of consultation and the Rules framed
without such consultation would be void. The same however is not
true for absence of consultation, with the Public Service Commission.
In State of U.P. v. Manbodhan Lal Srivastava42, this Court while
interpreting Article 320(3) of the Constitution had noted that the
word “shall” though generally taken in a mandatory sense, must be
interpreted as “may”, leading to the conclusion that the consultation
under Article 320(3), is not mandatory. Tracing the power of the High
Court under Article 235 of the Constitution of India, in Rajendra Singh
Verma v. Lt. Governor (NCT of Delhi)43, in the context of compulsory
retirement, the Court pertinently noted that:
“36. The Governor could not have passed any order on the
advice of the Public Service Commission in this case. The
advice should be of no other authority than the High Court
in the matter of judicial officers. This is the plain implication
of Article 235. Article 320(3)(c) is entirely out of place so
far as the High Court is concerned dealing with judicial
officers. To give any other interpretation to Article 320(3)
(c) will be to defeat the supreme object underlying Article
235 of the Constitution specially intended for the protection
of the judicial officers and necessarily the independence
of the subordinate judiciary. It is absolutely clear that the
Governor cannot consult the Public Service Commission
in the case of judicial officers and accept its advice and
act according to it. There is no room for any outside body
between the Governor and the High Court.”

41 AC Thalwal v High Court of Himachal Pradesh (2000) 7 SCC 1; Supreme Court Advocates-on-Record
Association v Union of India (1993) 4 SCC 441; Hari Dutt Kainthla v State of Himachal Pradesh, 1980 3
SCC 189
42 [1958] 1 SCR 533 : AIR 1957 SC 912
43 [2011] 12 SCR 496 : (2011) 10 SCC 1
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91. At this stage, it needs to be clarified that this Court is not tasked
to authoritatively decide whether consultation with Public Service
Commission should be “mandatory” or “directory” under Article 234 of
the Constitution of India. The question that needs to be answered in
these matters is whether the Rules would be rendered void, in case
the Public Service Commission itself didn’t wish to be consulted?
The letter dated 10.6.2005, written by the Joint Secretary of the
Public Service Commission is relevant and is extracted as follows: -
“Sir,
With reference to the subject noted above, vide the
Notification No. GK-2005-5-JSR-1982-994-D, dated
9/05/2005 of the Legal Department, the recruitment rules
of instant post have been issued. In pursuance of the
details of the letter dated 6/06/2005 of the Commission,
it is requested to remove the provision of “and the GPSC”
from third line of the first paragraph of aforementioned rules.
As the proposed posts under the recruitment rules do not
fall within the purview of the Commission, it is requested
to initiate the procedure to remove aforementioned words
from aforesaid published recruitment rules.”
92. The learned counsel for the Gujarat High Court has relied on Entry
11B in the Schedule to the Gujarat Public Service Commission
(Exemption from Consultation) Regulations,1960 framed under the
proviso to Article 320(3) of the Constitution which mentions the post
of “The Civil Judge (Junior Division) and Judicial Magistrate of First
Class.”
93. The above discussion persuades us to say that 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.
94. For the Writ Petitioner, reliance has been placed by Mr. Pawanshree
Agarwal on the decision of the Bombay High Court in Goa Judicial
Officer’s Association v State of Goa44 to argue that the consultation

44 1997(4) BOM CR 372
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with Public Service Commission is mandatory. While it is true that
the Bombay High Court decided that the consultation is mandatory, a
careful reading of the judgment would show that the Court refused to
grant any relief to the petitioner therein noting that this was an issue
between the Government and the PSC and the petitioner could not
claim any cause of action. The High Court specifically noted as under:
“20. This controversy, however, need not detain us for long,
because even assuming that there was no consultation at
all, whether the petitioner is entitled to get any relief in this
petition on that score is to be examined. The consultation
or non-consultation is a matter between the Public Service
Commission and the Government and that too at the
stage of framing rules. Therefore, individual candidates
are not very much concerned with that. Their rights are
not dependent upon or decided upon the consultation or
non-consultation with either the High Court or with the
Public Service Commission. Therefore, non-consultation
with the Public Service Commission will not give any cause
of action to the petitioner or any one of the members of
the petitioner’s Association to maintain this writ petition.”
95. Similarly, reliance by the petitioners counsel on the judgment of
the Madras High Court in N. Devasahayam v. State of Madras45 as
regards the mandatory nature of the Consultation which is argued to
have been endorsed by the Constitution Bench of this Court in Bal
Mukund (supra), is found to be misplaced. In Bal Mukund (supra),
the Court endorsed the finding in N. Devasahayam (supra), but the
judgment would also show that there is no authoritative finding on
the ‘mandatory’ or ‘directory’ nature of Article 234.
96. Likewise, the judgment of the Supreme Court in AC Thalwal v High
Court of HP46 would also be of no assistance for the petitioners as
in that case, the Ex-Servicemen (Reservation of Vacancies in the
Himachal Pradesh Judicial Service) Rules, 1981 was declared ultra
vires the Constitution and hence void in the context of non-consultation
with the High Court but not with the Public Service Commission under
Article 234 of the Constitution of India. As discussed earlier, the Court

45 AIR 1958 Mad 53
46 [2000] Supp. 2 SCR 428 : (2000) 7 SCC 1
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Abhimeet Sinha & Ors. v. High Court of Judicature at Patna & Ors.

noted that “the status which the High Court as an institution enjoys
in the constitutional scheme and the expertise and the experience
which it possesses of judicial services, justify a place of primacy
being assigned to the High Court in the process of consultation.”
It is undoubtedly mandatory to consult the High Court for framing
Rules and any Rule enacted by the State Government without such
consultation is considered ultra vires. The rationale is to safeguard
the judicial service from executive influence which is rooted in the
constitutional objective of establishing an independent judiciary.
97. In Gujarat, when the Public Service Commission did not wish to be
consulted under the proviso to Article 320(3) of the Constitution of
India, in the absence of such consultation, it cannot be held that the
Gujarat Rules, 2005 suffers from any legal or constitutional invalidity
particularly when the Rules were framed with due consultation with
the High Court.
VII. CONCLUSION AND DIRECTIONS
98. Before reaching our final conclusion in these matters, reference
to Malik Mazhar v. U.P Public Service Commission47 would be in
order where the Supreme Court emphasised the importance of
having a prescribed time-schedule for conducting the judicial service
examinations. The need for having a fixed timeline for each step of
the examination process was also suggested in this case. Recently,
taking note of the judicial vacancies in District Judiciary, this Court had
taken suo moto cognizance48 and directed the High Courts and State
governments to report on whether the judicial vacancies will be filled
in a timely fashion, as prescribed in Malik Mazhar (supra) . A report of
the Supreme Court’s Centre for Research and Planning49 notes that
despite the judgment in Malik Mazhar (supra) 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 notes 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).

47 [2006] 3 SCR 689 : (2006) 9 SCC 507
48 Filling up of Vacancies, In re, 2018 SCC OnLine SC 3648
49 Centre for Research and Planning, Supreme Court of India, State of the Judiciary, A Report on
Infrastructure, Budgeting, Human Resources and ICT (November 2023)
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99. As can also be seen in the matters before us, 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.
100. To avoid the meandering process noticed in the recruitment in the
State of Bihar and to ensure more clarity and certainty with the
process, 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. As a confidence building measure, the designation of those
in the interview panel, could also be provided for appropriately, in
the Rules. It would be apposite at this stage to note a few of the
recommendations flagged in the December,2018 Report of Vidhi
Centre for Legal Policy titled “Discretion & Delay- Challenges of
Becoming a District & Civil Judge”50 which examined the judicial
Service Rules of 29 States. 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.

50 Diksha Sanyal and Shriyam Gupta, “Discretion and Delay: Challenges in Becoming a District and Civil
Judge” (December 2018) <https://vidhilegalpolicy.in/research/2019-1-7-discretion-and-delaychallenges-
of-becoming-a-district-and-civil-judge/> accessed 3rd May, 2024
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101. To enable all the stakeholders to take consequential steps pursuant
to the above directions, this judgment should be brought to the notice
of the Hon’ble Chief Justices of all the High Courts in India.
102. With the foregoing discussion, the following conclusions are reached
for the cases under consideration: -
i) 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.
ii) 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.
iii) The impugned selection process in the State of Bihar and
Gujarat are found to be legally valid and are upheld.
iv) The non-consultation with the Public Service Commission would
not render the Gujarat Rules, 2005 (as amended in 2011) void.
The Writ petitions are, accordingly, dismissed without any order on
cost.

Result of the case: Writ Petitions dismissed.

†
Headnotes prepared by: Nidhi Jain