Holding

The High Court was within its authority to prescribe separate 50% cut‑offs for the written test and viva voce in promotion under the 65% quota, and the State's refusal to accept the recommendation was unconstitutional.

Summary

The Supreme Court examined a dispute arising from the High Court of Punjab and Haryana's recommendation to promote thirteen in‑service judicial officers to Additional District and Sessions Judges under the 65% promotion quota of the Haryana Superior Judicial Service Rules, 2007. The State of Haryana refused to accept the recommendation, arguing that the High Court had not followed the "settled procedure" under Article 233 read with Article 309 and the Rules, particularly the requirement of a 50% cut‑off in both the written test and viva voce. The Court considered whether the High Court could, by administrative resolution, impose separate 50% cut‑offs when the Rules were silent, and whether the State was required to consult the Union Government rather than the High Court. It held that the Rules allowed the High Court to fill gaps with administrative directions, that the separate 50% criteria were a valid classification for the promotion quota, and that the State had overstepped its constitutional duty by seeking consultation beyond the High Court. Consequently, the Supreme Court affirmed the High Court's order directing the State to accept the promotion recommendations. The appeals were dismissed.

Issues considered

The validity of the High Court's administrative resolution imposing a 50% minimum in both written test and viva voce for promotion under the 65% quota.
Whether the State of Haryana was required to consult the Union Government or could rely solely on consultation with the High Court under Articles 233, 234 and 235.
Whether the Rules being silent on cut‑off marks permits the High Court to prescribe such criteria without violating Article 309.
The applicability of the doctrine of legitimate expectation and alleged arbitrariness in the High Court's process.

Legislation cited

Constitution of Indias. Article 233, s. Article 234, s. Article 235, s. Article 309
Haryana Superior Judicial Service Rules, 2007s. Rule 19, s. Rule 2(b), s. Rule 2(i), s. Rule 5, s. Rule 6(1)(a), s. Rule 6(1)(b), s. Rule 6(1)(c), s. Rule 7, s. Rule 8, s. Rule 9

Subjects

PromotionEligibility CriteriaService RulesRecruitmentDistrict Judiciary

Judgment

[2024] 2 S.C.R. 1136 : 2024 INSC 192

Dr Kavita Kamboj
v.
High Court of Punjab and Haryana & Ors
(Civil Appeal Nos 2179-2180 of 2024)
13 February 2024
[Dr. Dhananjaya Y Chandrachud,* CJI, J B Pardiwala
and Manoj Misra, JJ]

Issue for Consideration
The issue for consideration was a challenge to a decision of the High
Court of Punjab & Haryana directing the State of Haryana to take
positive action to accept its recommendation vide communication
dated 23.02.2023, whereby the names of thirteen in-service judicial
officers were recommended for appointment by way of promotion
as Additional District and Sessions Judge.
The challenge before the High Court was inter alia to a decision
of the State of Haryana vide Letter dated 12.03.2023, whereby
the State had decided not to accept the aforesaid High Court
recommendation dated 23.02.2023, on the ground that the “settled
procedure” under Article 233 read with Article 309 of the Constitution
of India and the Haryana Superior Judicial Service Rules 2007
had not been followed.

Headnotes
Service Law – Promotion – Eligibility Criteria – Haryana
Superior Judicial Service Rules 2007 – Rule 6(1)(a) r/w. Rule
8 – Recommendation of the High Court that for a candidate
seeking promotion on the basis of merit-cum-seniority, an
aggregate of 50% marks for both, i.e. in the written test and in
the viva voce, would be required so as to render a candidate
eligible for promotion – Challenge to:
Held: The High Court was correct in prescribing that recruitment by
promotion to the Higher Judicial Service should have a minimum of
50% both in the written test as well as in the viva voce independently,
for those in-service candidates who were drawn for promotion in
the 65% promotion quota – This is because the candidate should
not just demonstrate the ability to reproduce their knowledge by
answering questions in the suitability test, but must also demonstrate
* Author
[2024] 2 S.C.R. 1137

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

both practical knowledge and the application of the substantive
law in the course of the interview – In-service candidates seeking
recruitment through promotions cannot be considered at par with
candidates seeking direct recruitment or with candidates seeking
accelerated promotion through a limited competitive test – The
three modes of recruitment have been reasonably classified and
different requirements have been prescribed for each – As such,
what may or may not have been held in respect of the viva voce
in direct recruitments may not necessarily apply to the viva voce
requirement in recruitments through promotions [Paras 65, 37, 41]
Eligibility criteria for Higher Judicial Services:
Held: The Higher Judicial Services require the selection of judicial
officers of mature personality and requisite professional experience
– In-service judicial officers are expected to have a greater familiarity
with the law and the procedure based on their experience as judicial
officers – While an objective written examination can be the best
gauge of the legal knowledge of a candidate, the viva voce offers
the best mode of assessing the overall personality of a candidate
– 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. [Paras 42, 44]
Administrative directions can fill up the gaps and supplement
the Rules, when they are silent on a particular point:
Held: When the Rules under Article 309 hold the field, these Rules
have to be implemented – Where specific provisions are made in
the Rules framed under Article 309, it would not be open to the
High Court to issue administrative directions either in the form of
the Full Court Resolution or otherwise, that are at inconsistent with
the mandate of the Rules – On the other hand, in cases such as
the one at hand, where the Rules were silent, it is open to the
High Court to issue a Full Court Resolution – The Rules being
silent, it was clearly open to the High Court to prescribe such a
criterion as it did in 2013, when the 50% cut-off was prescribed
on aggregate scores and also, in 2021, when the 50% cut-off was
prescribed on the written test scores and the viva voce separately.
[Paras 50, 52 and 65]
1138 [2024] 2 S.C.R.

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Constitution of India - Articles 233, 234 and 235 – Appointments
to the District Judiciary to be in consultation with the High
Court and any other exercise de hors such consultation would
not be in accordance with the scheme of the Constitution:
Held: In matters of appointment of judicial officers, the opinion of
the High Court is not a mere formality because the High Court is
in the best position to know about the suitability of the candidates
to the post of District Judge – The Constitution, therefore, expects
the Governor to engage in constructive constitutional dialogue with
the High Court before appointing persons to the post of District
Judges under Article 233. [Para 62]
The State Government travelled beyond the remit of the consultation
with the High Court by referring the matter to the Union Government.
Any issue between the High Court and the State Government
should have been ironed out in the course of the consultative
process within the two entities – The State Government was bound
to consult only the High Court – Any other exercise de hors such
consultation would not be in accordance with the scheme of the
Constitution. [Para 66]
Doctrines – Doctrine of Legitimate Expectation – Twin Test:
Held: An individual who claims the benefit or entitlement based
on the doctrine of legitimate expectation has to establish: (i) the
legitimacy of the expectation; and (ii) that the denial of the legitimate
expectation led to a violation of Article 14. [Para 58]

Case Law Cited
All India Judges’ Association v. Union of India, [2002]
2 SCR 712 : (2002) 4 SCC 247; All India Judges’
Association v. Union of India, (2010) 15 SCC 170;
Dheeraj Mor v. High Court of Delhi, [2020] 2 SCR 161 :
(2020) 7 SCC 401; Lila Dhar v. State of Rajasthan,
[1982] 1 SCR 320 : (1981) 4 SCC 159; Taniya Malik
v. Registrar General of the High Court of Delhi, [2018]
10 SCR 348 : (2018) 14 SCC 129 ; B V Sivaiah v.
K. Addanki Babu, [1998] 3 SCR 782 : (1998) 6 SCC
720 ; P K Ramachandra Iyer v. Union of India, [1984]
2 SCR 200 : (1984) 2 SCC 141; Sant Ram Sharma
v. State of Rajasthan, [1968] 1 SCR 111 : 1967 SCC
OnLine SC 16; State of Gujarat v Akhilesh C Bhargav,
[2024] 2 S.C.R. 1139

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

[1987] 3 SCR 1091 : (1987) 4 SCC 482; State of Uttar
Pradesh v. Chandra Mohan Nigam, [1978] 1 SCR 521 :
(1977) 4 SCC 345; K H Siraj v. High Court of Kerala,
[2006] Supp. 2 SCR 790 : (2006) 6 SCC 395; Chandra
Mohan v. State of Uttar Pradesh, [1967] 1 SCR 77;
Chandramouleshwar Prasad v. Patna High Court, [1970]
2 SCR 666 : (1969) 3 SCC 56; State of Haryana v Inder
Prakash Anand HCS, [1976] Supp. 1 SCR 603 : (1976)
2 SCC 977; State of Bihar v Bal Mukund Sah, [2000]
2 SCR 299 : (2000) 4 SCC 640 – relied on.
Sivanandan C T v High Court of Kerala, [2023] 11 SCR
674, 2023 SCC Online SC 994 – distinguished.
State of West Bengal v. Nripendra Nath Bagchi, [1966]
1 SCR 771 : 1965 SCC OnLine SC 22; High Court of
Punjab and Haryana v. State of Haryana, [1975] 3 SCR
365 : (1975) 1 SCC 843; High Court of Judicature for
Rajasthan v. PP Singh, [2003] 1 SCR 593 : (2003) 4
SCC 239 – referred to.

Books and Periodicals Cited
First National Judicial Pay Commission, 1999 (Shetty
Commission Report)

List of Acts
Haryana Superior Judicial Service Rules 2007; Constitution of India

List of Keywords
Promotion; Eligibility Criteria; Service Rules, Recruitment; District
Judiciary.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.2179-2180 of
2024
With
Civil Appeal Nos.2181-82, 2183, 2184-85 and 2186 of 2024
From the Judgment and Order dated 20.12.2023 of the High Court
of Punjab & Haryana at Chandigarh in CWP Nos.19775 and 26217
of 2023
1140 [2024] 2 S.C.R.

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Appearances for Parties
Tushar Mehta, Solicitor General, Vikramjit Banerjee, A.S.G., Lokesh
Sinhal, Sr. A.A.G., B.K. Satija, A.A.G., Ms. Shristi Jain Goyal, D.A.G.,
P S Patwalia, Shyam Divan, Gopal Sankaranarayanan, Sr. Advs,,
Samar Vijay Singh, Kanu Agrawal, Siddhartha Sinha, Bharat Sood,
Ms. Sabarni Som, Nikunj Gupta, Udayaditya Arpith, Ms. Trisha
Chandran, Nishant Singh, Udayaditya Banerjee, Arpith Jacob
Varaprasad, Advs. for the Appellant.
Nidhesh Gupta, Rameshwar Singh Malik, Sr. Advs., Sidhant Awasthy,
Mrs. Eliza Bar, Siddhant Saroha, Manav Bhalla, Abhimanyu Tewari,
Jaspreet Singh Rai, Rohit Nagpal, Jitesh Malik, Jasdeep Singh
Dhillon, Mrs. Sukhdeep Kaur Rai, Mrs. Vasudha Gupta, Mrs. Vasudha
Nagpal, Linoy Varghese, Ravi Kumar, Ankur Singh, Shwetabh Kumar,
Shyamal Kumar, Advs. for the Respondents.
Judgment / Order of the Supreme Court

Judgment
Dr Dhananjaya Y Chandrachud, CJI
Table of Contents*
A. Background of the present dispute ............................... 6
B. Submissions ..................................................................... 13
C. Analysis ............................................................................. 22
i. All India Judges’ Association ................................. 22
ii. The Rules can be supplemented to fill in gaps .... 33
iii. Sivanandan C T ........................................................ 37
iv. Articles 233, 234 and 235 of the Constitution
of India ....................................................................... 41
D. Conclusion ........................................................................ 48
1. Permission to file the Special Leave Petitions granted.
2. Leave granted.
3. This batch of appeals has arisen from a judgment delivered by a
Division Bench of the High Court of Punjab and Haryana on 20

* Ed Note : Pagination as per original judgment.
[2024] 2 S.C.R. 1141

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

December 2023. The controversy that arises before this Court pertains
to the recommendations made by the High Court on its administrative
side for the appointment of thirteen in-service candidates as Additional
District and Sessions Judges. These candidates are seeking
recruitment to the post through promotions from the post of Senior
Civil Judges against the 65% promotional quota under the Haryana
Superior Judicial Service Rules 2007.1
4. The Rules came into force on 10 January 2007 and regulate
recruitment and service conditions of persons for appointment to the
Haryana Superior Judicial Service. Part III of the Rules provides for
the method of recruitment. Rule 2(b) defines “direct recruit” to mean
a person who is appointed to the Service from the Bar. Likewise,
“promoted officer” is defined under Rule 2(i) to mean a person who
is appointed to the service by promotion from Haryana Civil Service
(Judicial Branch). Rule 5 provides that recruitment to the Service
shall be made by the Governor by:
(i) promotion from amongst officers of the Haryana Civil Service
(Judicial Branch) in consultation with the High Court; and
(ii) direct recruitment from amongst eligible advocates on the
recommendations of the High Court on the basis of a written
and viva voce test conducted by the High Court.
5. In terms of Rule 62, recruitment to the service is to be made from
three sources:

1 “Rules”
2 “6 (1) Recruitment to the Service shall be made,-
(a) 65 percent by promotion from amongst the Civil Judges (Senior Division)/Chief Judicial Magistrates/
Additional Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a
suitability test;
Provided that no person shall be promoted to the Service who is less than thirty- five years of age;
(b) 10 percent by promotion strictly on the basis of merit through limited competitive examination of
Civil Judges (Senior Division) having not less than five years qualifying service as Civil Judges (Senior
Division)/Chief Judicial Magistrates/Additional Civil Judges (Senior Division); and who are not less than
thirty five years of age on the last date fixed for submission of applications for taking up the limited
competitive examinations:
Provided that if candidates are not available for 10 percent seats, or are not able to qualify in the exami-
nation then vacant posts shall to be filled up by regular promotion in accordance with clause (a); and
(c) 25 percent of the posts shall be filled by direct recruitment from amongst the eligible advocates on
the basis of the written and viva voce test, conducted by the High Court.
(2) The first and second post would go to category (a) (by promotion on the basis of merit-cum-senior-
ity), third post would go to category (c) (direct recruitment from the bar), and fourth post would go to
category (b) (by limited competitive examination) of rule 6, and so on.”
1142 [2024] 2 S.C.R.

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(i) 65% by promotion from amongst the Civil Judges (Senior
Division)/Chief Judicial Magistrates/Additional Civil Judges
(Senior Division) “on the basis of principle of merit-cum-seniority
and passing a suitability test”;
(ii) 10% by promotion “strictly on the basis of merit” through a
limited competitive examination from amongst persons holding
the feeder posts; and
(iii) 25% on the basis of direct recruitment from amongst eligible
advocates on the basis of a written and viva voce test conducted
by the High Court.
6. Rule 7 prescribes the procedure for conducting direct recruitment.
Rule 8 provides for the procedure for promotion for assessing and
testing the merit and suitability of the judicial officers. Rule 9 provides
for a limited competitive examination for the promotion of members
of the Haryana Civil Service (Judicial Branch) pursuant to Rule 6(b).
Rules 7, 8 and 9 are set out below:
“Procedure for direct recruitment.
7. The High Court shall before making recommendations
to the Governor invite applications by advertisement and
may require the applicants to give such particulars as
it may specify and may further hold written examination
and viva voce test for recruitment in terms of rule 6(c)
above and the maximum marks shall be in the following
manner:-
(i) Written Test 750 marks
(ii) Viva Voce 250 marks
Procedure for promotion.
8. Procedure for promotion for assessing and testing the
merit and the suitability of a member of the Haryana Civil
Service (Judicial Branch) for promotion under clause (a)
of sub-rule (1) of rule 6, the High Court may-
(i) hold a written objective test of 75 marks and viva
voce of 25 marks in order to ascertain and examine
the legal knowledge and efficiency in legal field;
[2024] 2 S.C.R. 1143

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

(ii) take into consideration Annual Confidential Reports
of the preceding five years of the officer concerned:
Provided that any officer having grading as C (integrity
doubtful) in any year shall not be eligible to be considered
for promotion.
Limited competitive examination.
9. The High Court shall hold a limited written competitive
examination for promotion of members of the Haryana
Civil Service (Judicial Branch) as per rule 6(b) and the
maximum marks shall be in the following manner:
(i) Written Examination 600 marks
(ii) Assessment of Record 150 marks
(iii) Viva Voce 250 marks
Provided that the High Court shall in addition to the above
competitive examination take into consideration any of the
criteria as specified in rule 8 above:
Provided further that any officer having grading as C
(integrity doubtful) in any year, shall not be eligible to
appear in the limited competitive examination.”
7. In terms of Rule 8, the High Court is required to hold a written
objective test comprising 75 marks and a viva voce comprising 25
marks to ascertain and examine the legal knowledge and efficiency
of the candidates in the legal field. In addition, the High Court is
required to take into consideration the Annual Confidential Reports3
of the preceding five years of each officer under consideration.
A. Background of the present dispute
8. On 29 January 2013, the High Court, on its administrative side,
resolved that an aggregate of 50% marks in the written test and in
the viva voce would be required so as to render a candidate eligible
for promotion. The relevant part of the resolution is extracted below:
“i) In terms of Rule 8(a) of the Haryana Superior Judicial
Service Rules, 2007, the suitability test shall consist

3 “ACRs”
1144 [2024] 2 S.C.R.

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of written objective test of 75 marks and viva voce of
25 marks so as to assess legal knowledge and the
efficiency in legal field for discharging higher duties and
responsibilities. Obtaining of 50% marks in aggregate of
the written test and in viva voce would make a candidate
eligible for promotion.”
9. On 11 November 2021, a meeting of the Recruitment and Promotion
Committee4 overseeing the Superior Judicial Service was held. The
Minutes of the Meeting adverted to Rules 6 and 8 of the Rules and
a corresponding provision contained in the Punjab Superior Judicial
Service Rules 2007. Both sets of Rules were amended by the States
of Haryana and Punjab in order to bring uniformity in promotions
to the Superior Judicial Service. In both the States, the Committee,
inter alia, resolved that:
“ii. In terms of Rule 7(3)(a) of the Punjab Superior Judicial
Service Rules, 2007 and Rule 6(1)(a) of Haryana Superior
Judicial Service Rules, 2007, the suitability test shall consist
of written objective test of 75 marks and viva voce of 25
marks so as to assess legal knowledge and efficiency in
legal field for discharging higher duties and responsibilities.
Securing, 50% marks in the written test and 50% marks
in Viva voce individually would make a candidate eligible
for promotion.”
10. As a result of the above Resolution, the Committee decided that
in order to be eligible for promotion, a candidate must secure 50%
marks in the written test and 50% marks in the viva voce. In other
words, while under the earlier Resolution of the Full Court dated
29 January 2013, a candidate was required to obtain at least 50%
marks in the written test and viva voce combined, the proposal of
the Recruitment and Promotion Committee of 11 November 2021
stipulated that a candidate must obtain at least 50% marks in the
written test and at least 50% in the viva voce. This Resolution of
the Committee was approved by the Full Court at a meeting which
was held on 30 November 2021.
11. At the same time, it must also be noted that the Committee had
proposed certain modifications in the benchmark for assessing the

4 “Committee”
[2024] 2 S.C.R. 1145

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

ACRs of candidates under Rule 8. The Full Court, while deliberating
on the recommendations of the Committee, resolved that:
“...the report dated 11.11.2021 of Hon’ble Recruitment
and Promotion Committee (Superior Judicial Service) be
accepted with modification in para No. iii of the “Benchmark
of the ACRs as per Rule 8”. After modification, the said
para be read as under:-
“(iii)(a) A candidate should have obtained at least four
“B+Good” or above grading in the Annual Confidential
Reports in the preceding five years and
(b) The candidate should not be having grading as C
(integrity doubtful) in any year.
Provided that for the purpose of assessing the benchmark,
the ACRs of a candidate, yet to be approved by the Hon’ble
Full court, would also be considered but his result would
be kept in a sealed cover, subject to the final decision of
the Hon’ble Full Court.”
12. The Full Court also resolved that in order to settle the issue in a
comprehensive manner the necessity, if any, to amend the Rules
should be examined by the Committee overseeing the Superior
Judicial Service and the Rule Committee.
13. Following the above resolution, the two committees convened on 11
February 2022. The Minutes of the Meeting of the two committees
reflect the following decision:
“Re:- Consideration of matter qua amendment in Rule 8 of
Punjab Superior Judicial Service Rules, 2007 and Rule 8
of Haryana Superior Judicial Service Rules, 2007 in view
of the report dated 11.11.2021 of the Hon’ble Recruitment
and Promotion Committee (Superior Judicial Service) as
well as modification in para no. (iii) of the ‘Benchmark of
the ACRs as per Rule 8’, by the Hon’ble Full Court.
Meeting note perused. After deliberating upon the matter at
length, this Committee recommends that the word ‘and’ be
inserted at the end of sub-rule (I) and before sub-rule (ii) of
Rule 8 of Haryana Superior Judicial Service Rules 2007.
This Committee also recommends that existing proviso
1146 [2024] 2 S.C.R.

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to Rule 8 of Punjab Superior Judicial Service Rules 2007
as well as to Rule 8 of Haryana Superior Judicial Service
Rules 2007 be substituted as under:-
“Provided that an officer with an entry of integrity doubtful
in any year shall not be eligible to be considered for
promotion.”
This Committee has also perused Rule 9 of Punjab Superior
Judicial Service Rules 2007 and Rule 9 of Haryana Superior
Judicial Service Rules 2007 and recommends that existing
second proviso to Rule 9 of Punjab Superior Judicial
Service Rules 2007 and to Rule 9 of Haryana Superior
Judicial Services Rules 2007 be substituted as under:-
“Provided further that an officer with an entry of Integrity
doubtful in any year shall not be eligible to appear in the
said examination.’’
The matter be referred to the Hon’ble Full Court for approval.”
14. On 24 August 2022, the process of filling up vacancies for the post
of Additional District and Sessions Judges from amongst Civil Judges
(Senior Division)/Chief Judicial Magistrates/Additional Civil Judges
(Senior Division) was initiated and a communication was accordingly
addressed to thirty-nine candidates. The High Court conducted a
written test which was followed by a viva voce. On 23 February
2023, the Registrar (Judicial) addressed a communication to the
State Government recommending the names of thirteen judicial
officers for appointment by way of promotion as Additional District
and Sessions Judges.
15. On 2 March 2023, a communication was addressed by the Chief
Secretary to the Government of Haryana to the Registrar (Judicial)
seeking a “justification/clarification” in regard to certain judicial officers
of the 2007, 2009 and 2010 batches on the ground that they appeared
to be senior than the last of the thirteen recommended officers. The
communication noted that in spite of seniority, these judicial officers
were not recommended for promotions. The High Court was also
called upon to clarify “the criteria of merit and suitability test, on the
basis of which principle of merit-cum-seniority has been affected (sic)
and names of officers senior to the recommended officers have not
been recommended”.
[2024] 2 S.C.R. 1147

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

16. The High Court of Punjab and Haryana responded to the
communication of the State Government on 22 March 2023, indicating
that the appointment to the thirteen posts of Additional District and
Sessions Judges which was initiated by way of promotion was
sought to be made strictly in terms of Rule 6(1)(a) of the Rules which
prescribes merit-cum-seniority read with the criteria laid down by the
High Court for assessing the suitability of a candidate for appointment.
The High Court further stated that all appointments and promotions
concerning the judiciary fall under the control and supervision of the
High Court and since the recommendations have been approved by
the Full Court, they were binding on the State Government under
Article 235 of the Constitution.
17. On 29 March 2023, an advocate by the name of Mr Prem Pal
submitted a representation to the Chief Secretary of Haryana seeking
the intervention of the State Government in order to either reject the
recommendations of the High Court or to initiate a fresh process of
consultation. The representation stated that the recommendations of
the High Court were not binding since the requirement of obtaining
50% marks in the viva voce had not been communicated to the
candidates and no minimum cut-off in the viva voce had been
prescribed. It is also stated that no criteria had been adopted for
conducting the suitability test.
18. Following the receipt of this representation, the State Government
sought the opinion of the Union Ministry of Law and Justice. The
Union Ministry of Law and Justice tendered its opinion on 26 July
2023, stating that Article 233 of the Constitution which deals with
appointments, postings and promotions of District Judges envisages
consultation between the State Government and the High Court.
The opinion of the Union Ministry was that the modification of the
suitability criteria in terms of the Resolution dated 30 November 2021
of the High Court lacked the element of consultation with the State
Government and, therefore, did not have a binding effect.
19. A writ petition under Articles 226 and 227 was filed by certain
candidates working as Civil Judges (Senior Division) and Chief
Judicial Magistrates in the State of Haryana for seeking a mandamus
to the State Government to conclude the process of selection and to
notify the appointments by way of promotion of candidates selected
to the posts of Additional District and Sessions Judge.
1148 [2024] 2 S.C.R.

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20. The State of Haryana addressed a communication on 12 September
2023 to the Registrar General of the High Court stating that the
State Government had decided not to accept the recommendations
for promoting thirteen judicial officers on the ground that the “settled
procedure” under Article 233 read with Article 309 and the Rules of
2007 had not been followed. The State of Haryana sought to support
its decision on the basis of the legal opinion which was tendered on
26 July 2023 by the Union Ministry of Law and Justice. The relevant
extract of the communication reads as follows:
“Therefore, keeping in view the position explained above,
the State Government has decided not to accept the present
recommendation for promotion of 13 Haryana Civil Service
(Judicial Branch) Officers to the post of Additional District
and Sessions Judges (ADSJ), as the State Government
as well as the Central Government (Ministry of Law and
Justice) have observed that the settled procedure under
Article 233 read with Article 309 of the Constitution of India,
i.e., Haryana Superior Judicial Service Rules, 2007 has not
been followed while sending names to the Government
for promotion. Hence, you are requested to send revised
recommendations by following set procedures as per law.”
21. The petition before the High Court was amended so as to challenge
the letter dated 12 September 2023. Other writ petitions were filed
before the High Court by unsuccessful candidates, inter alia, seeking
an order restraining the State from accepting the recommendations
made by the High Court and for quashing the Resolution of 30
November 2021, along with the recommendations for promotion of
the petitioners. These candidates who had not been selected also
sought a direction to the High Court, on its administrative side, to
recommend candidates for promotion to the post of the District
and Sessions Judges under Rule 6(1)(a) without observing the
requirement of obtaining 50% marks each in the written examination
and in the viva voce. The High Court, by its impugned judgment
dated 20 December 2023, disposed of the batch of petitions. The
High Court directed the State of Haryana to take positive action to
accept its recommendations which were made on 23 February 2023.
22. In the batch of appeals which have arisen before this Court, we
have heard Mr P S Patwalia, Mr Shyan Divan and Mr Gopal
[2024] 2 S.C.R. 1149

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

Sankaranarayanan, senior counsel, who have appeared on behalf of
the candidates who have not been recommended for appointment by
the High Court. Mr Tushar Mehta, Solicitor General, has appeared on
behalf of the State of Haryana in urging that the State Government
was justified in rejecting the recommendations of the High Court. Mr
Nidhesh Gupta, senior counsel, appears on behalf of the High Court.
Mr Rameshwar Singh Malik, senior counsel, has supported the plea
of the High Court, while appearing on behalf of the candidates who
have been recommended for appointment.
B. Submissions
23. Mr P S Patwalia, senior counsel, has basically urged the following
submissions:
(i) In terms of the judgment of this Court in All India Judges’
Association v. Union of India5, the suitability of candidates for
promotion as District Judges from amongst in-service candidates
is required to be adjudged. Apart from the requirement of
conducting a suitability test and a viva voce, Rule 6(1)(b) read
with Rule 8 requires the ACRs of the preceding five years to be
taken into consideration. The proforma of the ACRs contains an
exhaustive elaboration of the criteria which are to be borne in
mind while assessing a candidate. In other words, the suitability
of a candidate has to be assessed on the basis of the track
record, as reflected in the ACRs;
(ii) In the above backdrop, the Resolution of the Full Court dated 30
November 2021 which prescribed the requirement of obtaining
50% as a condition of eligibility in the suitability test and in the
viva voce separately, is an evident act of discrimination against
candidates seeking promotions in the 65% quota, compared to
those seeking in-service promotions in the 10% quota. There is
no requirement of obtaining the minimum cut-off individually in
the suitability test and in the viva voce when appointments are
made of inservice candidates through the limited competitive
examination. There is no rational justification for the High
Court to lay down a minimum cut-off of the nature which has
been prescribed by the resolution dated 30 November 2021

5 [2002] 2 SCR 712 : (2002) 4 SCC 247
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only for candidates seeking promotion in the 65% quota while
there is no such requirement in the 10% quota for the limited
competitive examination;
(iii) The element of discrimination is evident from the fact that
no such cut-off as a condition of eligibility is prescribed for
candidates who seek direct recruitment as Additional District
and Sessions Judges; and
(iv) The imposition of a cut-off as a condition of eligibility prescribing
a minimum of 50% of marks in the viva voce was disclosed,
for the first time, in a response to a query under the Right
to Information Act 2005 on 28 March 2023. Consequently,
candidates were completely in the dark about the imposition
of such a requirement as a condition of eligibility before the
disclosure. Consequently, the High Court has acted with
arbitrariness in recommending the appointments.
24. Mr Shyam Divan, senior counsel, submitted that:
(i) Candidates drawn for promotion in the 65% promotion quota
and 10% from the in-service candidates appearing for a limited
competitive examination are from the same pool. Consequently,
a minimum cut-off cannot be logically justified for the 65%
promotion quota when there is no such norm for the 10%, which
is filled up on the basis of the limited competitive examination;
(ii) Rule 19 empowers the State Government to make regulations
not inconsistent with the Rules to provide for all matters for which
provision is necessary or expedient for the purpose of giving
effect to the Rules. In the present case, there was a longstanding
practice, following the earlier resolution of the Full Court dated 29
January 2013 of requiring a cut-off of 50% overall on the basis
of the combined marks which were obtained in the written test
and in the interview. A departure from a practice which had held
the field for such a long period of time could have only been
made either by amending the Rules or by the exercise of power
under Rule 19 by the State Government to make regulations;
(iii) The principles of fairness and good governance which have
been laid down in the judgment of the Constitution Bench of
[2024] 2 S.C.R. 1151

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this Court in Sivanandan C T v High Court of Kerala6 apply
independent of prejudice. Where a breach of the principles of
natural justice is alleged for a failure to provide a hearing, an
additional layer has been provided in decisions of this Court to
the effect that such a breach will not necessarily invalidate the
action in the absence of prejudice to the candidates. While a
violation of the principles of natural justice may not be fatal in
the absence of prejudice, in the present case, the candidates
who have failed to be selected rely on an independent principle
of administrative law which requires fairness in governance;
(iv) In any event, this Court may scrutinize the marksheets, for the
purpose of analyzing the marks which were awarded in the
course of the viva voce to determine as to whether there is an
element of prejudice in the award of marks; and
(v) Based on the longstanding practice in the present case,
all candidates were under a legitimate expectation of the
continuance of the norms which were prescribed in the
Resolution of the Full Court dated 29 January 2013 and any
alteration of the position without due notice to the candidates
has resulted in substantial injustice.
25. Mr Gopal Sankaranarayanan, senior counsel urged that:
(i) The absence of notice to candidates about the alteration in the
criteria of eligibility results in a failure to satisfy the norms of
consistency and predictability;
(ii) The requirement of obtaining minimum qualifying marks in the
viva voce was introduced for the first time by the Resolution
dated 30 November 2021 of which candidates had no notice;
(iii) In paragraph 10.97 of its recommendations, the Shetty
Commission had stated that in matters of direct recruitment,
it was not inclined to impose a minimum cut-off in the viva
voce in order to obviate arbitrariness in the process. Though
the recommendation deals with direct recruitment, there is no
rational reason to exclude it in respect of the process which
is followed in promoting in-service candidates in the 65%
promotion quota; and

6 [2023] 11 SCR 674 : 2023 SCC Online SC 994
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(iv) On 28 February 2023, this Court was informed of there being
38 vacancies in the Superior Judicial Service in Haryana.
The High Court has made recommendations for appointing
13 candidates. This indicates the existence of a substantial
number of vacancies. Consequently, public interest would not
necessarily be subserved by affirming the view which has been
taken by the High Court, both on its administrative side and
on the judicial side.
26. Mr Tushar Mehta, Solicitor General submitted that:
(i) Bearing in mind the principles which are incorporated in Articles
233, 234 and 235 of the Constitution, the criteria for selection
of District Judges should be fixed in consultation with the State
Government;
(ii) A collaborative exercise must be followed by the two organs of
the State - the Judiciary and the Executive;
(iii) There is an element of subjectivity and arbitrariness implicit in
laying down minimum marks for the interview process since
a candidate who has otherwise obtained high marks in the
suitability test may be excluded for failure to meet the cut-off
in the viva voce;
(iv) Article 233 would encompass the criteria for selection, whether
by a rule or by a resolution. Hence, the High Court, while making
a modification to its own Resolution, ought to have consulted
the State Government; and
(v) The Government was not informed by the High Court of the
change in the criteria requiring a minimum of 50% marks in
both the suitability test and in the viva voce. On the other hand,
where an amendment of the Rules was sought to be effected,
the High Court has moved the State Government.
27. Mr Nidhesh Gupta, senior counsel appearing on behalf of the High
Court, in support of the decision which was taken on the administrative
side and ultimately as affirmed in the impugned judgment of the
Division Bench, submitted:
(i) Properly construed, Rule 8 of the Rules provides the modalities
for testing the merit and suitability of the members of the Judicial
Branch for promotion under clause (a) of Rule 6(1). The purpose
[2024] 2 S.C.R. 1153

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

of conducting the written test and the viva voce is to ascertain
and examine the knowledge and efficiency of the officer under
consideration in law;
(ii) Where the Rules are silent in regard to the details in the
implementation process, it is a settled principle of law that they
can be supplemented by administrative instructions;
(iii) The Rules, in the present case, being silent on the minimum
qualifying marks required to be obtained in the written test and
the viva voce, the administrative instructions which were issued
by the High Court do not involve any amendment of a rule;
(iv) As a matter of fact, the Full Court Resolution dated 29 January
2013 was issued in terms of the administrative power which is
vested in the High Court in regard to the appointment of District
Judges under Article 233 and in relation to the control of the
High Court over the District Judiciary under Article 235 and the
High Court has invoked the very same power while modifying
the terms of the earlier resolution on 30 November 2021;
(v) The plea of discrimination as between the requirements for
direct recruits, the in-service candidates in a limited departmental
examination and the promotional quota for in-service candidates
has no valid basis in law. All three categories are distinct and
constitute valid classifications;
(vi) The decision of this Court in All India Judges’ Association (supra)
distinguishes between all the three categories for appointment to
the Higher Judicial Service. This distinction is exemplified by the
Rules in question. For the promotional quota of 65%, the written
test consists only of multiplechoice questions totaling to 75 marks,
each candidate being given four options for every question. In the
matter of direct recruitment, the written test consists of five papers
totaling 750 marks comprising of three papers in law, each of 200
marks, a language paper of 100 marks and a general knowledge
paper of 50 marks. In the limited competitive examination, the
written examination has a weightage of 600 marks. As opposed
to the detailed examination which is expected of candidates for
direct recruitment and in the limited competitive examination,
the in-service candidates who avail of the promotional quota of
65% have to appear for a suitability test of a different nature and
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character. Consequently, all the three avenues for appointment
to the Higher Judicial service are distinct and the High court was
justified in imposing a minimum eligibility requirement of 50% in
the written test and the viva voce independently;
(vii) Interviews in the present case were conducted by six of the
senior-most Judges of the High Court, including the Chief
Justice and there is no allegation of mala fides or an attribution
of illegality to the interview. Marks in the written examination
were disclosed only after the final results were declared. A
candidate cannot contend that they were casual in the course
of the interview only because they expected to do well in the
written examination;
(viii) In consequence, no prejudice has been caused to any candidate
by the High Court not having disclosed the minimum eligibility
cut-off of 50% prior to the date of the interview. No prejudice
is caused to any candidate because it cannot be contended
that a candidate would have prepared differently if they were
made aware of the eligibility requirement;
(ix) On the aspect of consultation with the State Government within
the ambit of Articles 233 and 235, the High Court has relied on
settled precedent, including the decisions of the Constitution
Benches of this Court which emphasize that in matters of
appointments to the District Judiciary, the High Court remains
the sole repository of power;
(x) The consistent view of this Court has been that the requirement
of minimum marks for interviews in the appointments of District
Judges is necessary since the selection has to be made on the
basis of merit-cum-seniority;
(xi) In the present case, the appellants have sought a mandamus
before the High Court for the enforcement of the Resolution of
the Full Court of 2013. That being the position, it is not open
to them to challenge the ability of the High Court to frame a
resolution for modifying the terms of the earlier Resolution dated
29 January 2013; and
(xii) As regards the conduct of the State of Haryana, it is apparent
that initially the only objection of the State Government was in
regard to the non-recommendation of more senior persons in
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the Service. It is thereafter when an objection was raised by
an advocate in a representation to the effect that the cut-off of
50% had not been communicated to the candidates, that this
issue has been raised by the State Government.
28. Mr Rameshwar Singh Malik, senior counsel, has urged that:
(i) The Rules being silent, the High Court had the power to fill in
the gap by the issuance of administrative directions;
(ii) Since no amendment of the Rules was being brought about,
there was no requirement of consultation with the State
Government; and
(iii) The criterion which was fixed by the Resolution of the Full Court
dated 29 January 2013 is not under challenge and, in fact,
the relief which was sought before the High Court was for the
restoration of the criteria under the Resolution. Consequently,
where the same power has been used by the High Court to
make a selection subsequently in 2021, such an alteration is
beyond the purview of judicial review.
29. The rival submissions would now need to be analyzed.
C. Analysis
i. All India Judges’ Association
30. The genesis of the recruitment to the judicial service, particularly,
in the context of the controversy before this Court, traces back to
the judgment in the All India Judges’ Association (supra). In
the course of the judgment, this Court noted that at the time, the
recruitment to the Higher Judicial Service was being made from
two sources: first, by promotion from amongst the members of the
Subordinate Judicial Service; and second, by direct recruitment.
The decision was preceded by the recommendations of the Shetty
Commission,7 particularly regarding the revision of the pay scales
and conditions of service of the District Judiciary. While accepting
the recommendations of the Shetty Commission, which resulted in a
favourable modification of the pay scales of the District Judiciary, this
Court underscored the need to ensure certain minimum standards,

7 First National Judicial Pay Commission, 1999 (Shetty Commission Report)
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objectively assessed or fulfilled, by judicial officers who enter the
Higher Judicial Service. This Court accepted the recommendation
of the Shetty Commission that direct recruitment to the cadre of
District Judges from amongst advocates should be 25%, by way
of a competitive examination consisting of a written test and a viva
voce. The decision enunciated that in-service judicial officers must
be provided with the incentive to compete with each other in the
process of obtaining expedited promotions. The object of doing so
was to improve the caliber of persons recruited to the Higher Judicial
Service. Consequently, as regards appointment by promotion, this
Court held that 50% of the total posts in the Higher Judicial Service
should be filled up by promotion based on merit-cum-seniority, while
the remaining 25% of the posts in the Service should be filled up
strictly based on merit through a limited departmental competitive
examination with a stipulated qualifying service in the cadre of Civil
Judge (Senior Division). The conclusions of this Court were formulated
in the following terms:
“28. As a result of the aforesaid, to recapitulate, we direct
that recruitment to the Higher Judicial Service i.e. the cadre
of District Judges will be:
(1)(a) 50 per cent by promotion from amongst the Civil
Judges (Senior Division) on the basis of principle of merit-
cum-seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit
through limited competitive examination of Civil Judges
(Senior Division) having not less than five years’ qualifying
service; and
(c) 25 per cent of the posts shall be filled by direct
recruitment from amongst the eligible advocates on the
basis of the written and viva voce test conducted by
respective High Courts.
(2) Appropriate rules shall be framed as above by the High
Courts as early as possible.”
31. Following the decision in All India Judges’ Association (supra),
rules were framed in various States to comply with the directions.
Subsequently, many High Courts found it difficult to fill up 25 percent
posts through the limited departmental competitive examination.
[2024] 2 S.C.R. 1157

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Therefore, in All India Judges’ Association v. Union of India,8 this
Court reduced the quota of judicial officers from the limited competitive
examination from 25 percent to 10 percent. As a consequence,
three sources of recruitment to the Higher Judicial Service have
come into being:
(i) 65% of seats by promotion from the cadre of Civil Judges (Senior
Division) on the basis of the principle of merit-cum-seniority;
(ii) 10% by promotion on the basis of merit through a limited
competitive examination for Civil Judges (Senior Division)
fulfilling stipulated qualifying service; and
(iii) 25% seats by direct recruitment from amongst advocates who
fulfill the eligibility requirements.
32. It has been argued that since the Shetty Commission held that no
minimum cutoffs should be fixed for the viva voce for the route of
direct appointments (under Rule 6(1)(c)), and the findings of the
Shetty Commission were upheld by the Court in All India Judges’
Association (supra), it would be unreasonable to prescribe minimum
cutoffs for viva voce for another method of recruitment to the same
post.
33. The Rules under consideration preserve the three sources of
recruitment, in the ratio of 65% by promotion based on merit-cum-
seniority, 10% strictly on the basis of merit by a limited competitive
examination; and 25% by direct recruitment from amongst eligible
candidates based on the written and viva voce test. Each of the
three sources of recruitment is distinct in itself. Recruitment by
promotion under Rule 6(1)(a) is based on the principle of merit-
cum-seniority and passing of a suitability test, while recruitment by
promotion under Rule 6(1)(b) is strictly based on merit through a
limited competitive examination and 5 years of minimum qualifying
service as Civil Judges. The purpose of three sources of recruitment
is similarly distinct. Advocates with the requisite experience are
permitted to compete for direct recruitment to the Superior Judicial
Service. In-service judicial officers have two avenues for entering
the Superior Judicial Service: they can either appear for a limited
competitive examination where selection would be strictly based on

8 (2010) 15 SCC 170
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merit or they can seek a promotion through the normal channel of
promotion based on the merit-cum-seniority criterion.
34. In order to appreciate the classification between the three categories
of recruitment to the Higher Judicial Service, it would be necessary
to dwell on the modalities or the procedure for recruitment. Direct
recruitment, for which a 25% quota is set apart by Rule 6(1)(c), is
made on the basis of a written examination consisting of 750 marks
and a viva voce of 250 marks. While recording the submissions of
Mr Nidhesh Gupta, senior counsel appearing on behalf of the High
Court, we have already adverted to the manner in which the written
test comprising of 750 marks is conducted, comprising of three law
papers, a language paper and a paper in general knowledge. The
procedure for direct recruitment is spelt out in Rule 7. The procedure
for regular promotion, on the other hand, is provided in Rule 8 which
contemplates the assessment and testing of the merit and suitability
of a member of the Judicial Branch in Rule 6(1)(a). The purpose of
the objective test of 75 marks and the viva voce carrying 25 marks
is to ascertain and examine legal knowledge and efficiency in the
legal field. Besides this, the ACRs of the preceding five years of
the officer are taken into reckoning. Since the candidates who are
evaluated for promotion under Rule 6(1)(a) read with Rule 8 are in-
service candidates, the selection is based on a test (comprising of
the written and the viva voce) and due consideration of the service
records as borne out by the ACRs.
35. Recruitment by promotion under Rule 6(1)(b) is “strictly on the basis
of merit through the limited competitive examination” and a 5-year
qualifying service requirement. Under Rule 6(1)(b), the limited
competitive exam is of a competitive nature where members of
the Service compete inter se, as opposed to the direct recruitment
exam, which is open in nature. The limited competitive exam under
Rule 6(1)(b), according to Rule 9, comprises of a 600-mark written
examination. In addition, 150 marks are assigned to the assessment
of the records and 250 marks are assigned to the viva voce. The
proviso to Rule 9 indicates that the High Court shall, in addition to the
competitive examination, take into account any of the criteria specified
in Rule 8 which apply to the normal procedure for promotion. The
limited competitive examination under Rule 6(1)(b) read with Rule 9
cannot be equated with the procedure for promotion for assessing
merit and suitability under Rule 6(1)(a) read with Rule 8.
[2024] 2 S.C.R. 1159

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36. The scope of recruitment through regular promotion under Rule 6(1)
(a) read with Rule 8 is different from recruitment through promotion
based on limited competitive examination under Rule 6(1)(b) read
with Rule 9. As we have already noted, the purpose of a limited
competitive examination, as set out in the judgment of this Court in
All India Judges’ Association (supra), was to provide an avenue
for in-service officers to compete inter se for accelerated promotion
on fulfilling a higher benchmark of competition based on merit.
Moreover, this Court also recognised that the criteria and method of
testing the suitability of judicial officers should be different:
“27. [...] Furthermore, there should also be an incentive
amongst the relatively junior and other officers to improve
and to compete with each other so as to excel and get
quicker promotion. In this way, we expect that the calibre
of the members of the Higher Judicial Service will further
improve. In order to achieve this, while the ratio of 75 per
cent appointment by promotion and 25 per cent by direct
recruitment to the Higher Judicial Service is maintained,
we are, however, of the opinion that there should be
two methods as far as appointment by promotion
is concerned : 50 per cent of the total posts in the
Higher Judicial Service must be filled by promotion
on the basis of principle of merit-cum-seniority. For
this purpose, the High Courts should devise and
evolve a test in order to ascertain and examine the
legal knowledge of those candidates and to assess
their continued efficiency with adequate knowledge
of case-law. The remaining 25 per cent of the posts
in the service shall be filled by promotion strictly on
the basis of merit through the limited departmental
competitive examination for which the qualifying
service as a Civil Judge (Senior Division) should be
not less than five years. The High Courts will have to
frame a rule in this regard.”
(emphasis supplied)
37. The submission of the unsuccessful officers, that there is no valid
basis in law to impose a minimum eligibility cut-off of obtaining
50% marks individually in the written test and the viva voce, when
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such a requirement is not imposed either for direct recruitment or
for the limited competitive examination cannot hold substance. This
argument is premised on the fact that the three different modes of
recruitment are meant for the same post. It is argued that since the
purpose of all the three sources is to recruit persons for the same
post, a different requirement such as the 50% cut-off requirement
for the viva voce in one of the three modes, is arbitrary. Though the
recruitment is meant to fill vacancies in the same post in the higher
judicial service, the candidates taking the three routes to reach that
post are placed differently and thus must be tested differently. In-
service candidates seeking recruitment through promotions cannot
be considered on par with the candidates seeking direct recruitment
or for that matter with candidates seeking accelerated promotion
through a limited competitive test.9
38. Even among the candidates seeking promotion, there is a clear
distinction between those who are recruited under Rule 6(1)(a)
based on merit-cum-seniority and those who are recruited under
Rule 6(1)(b) based strictly on merit, in order to avail of a quicker
promotion. This Court in All India Judges’ Association (supra)
clearly noted that the rationale for accelerated promotions was to
afford an incentive to those who were relatively junior but desirous
of promotion.10 Similarly, in Dheeraj Mor v. High Court of Delhi,11 a
three-Judge Bench of this Court held that the purpose of promotion
through a limited competitive examination is to ensure that in-service
candidates are able to “take march to hold the post of District Judges
on the basis of their merit.”
39. The Rules prescribe different criteria for assessing the in-service
judicial officers eligible for promotion - while one is based on merit-
cum-seniority,12 the other is based strictly on merit de hors seniority.13
This difference justifies the distinct methods of evaluation prescribed
under Rules 8 and 9. A comparison of Rules 8 and 9 would show that
the written examination under Rule 9 carries 600 marks and is much
more elaborate and rigorous, as opposed to the 75 marks’ objective

9 Dheeraj Mor v. High Court of Delhi, [2020] 2 SCR 161 : (2020) 7 SCC 401
10 All India Judges’ Association (supra), [27].
11 [2020] 2 SCR 161 : (2020) 7 SCC 401
12 Rule 6(1)(a)
13 Rule 6(1)(b)
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test under Rule 8. The first proviso to Rule 914 mandates that the
High Court shall, in addition to competitive examination mentioned in
Rule 9, consider any criteria as specified under Rule 8. As we shall
advert to later in this judgment, the ultimate discretion vests with the
High Court regarding how they conduct the examinations under the
Rules. The proviso while recognising the power of the High Court
to import “any of the criteria” specified in Rule 8 to Rule 9, retains
the other differences about the manner in which the two processes
of promotion under Rule 8 and Rule 9 would operate. Thus, even
though candidates seeking promotions under Rules 6(1)(a) and 6(1)(b)
are drawn from in-service judicial officers, there is a rational basis of
treating them differently - while some candidates among the in-service
officers can seek regular promotions based on their seniority, those
relatively junior have an incentive to opt for accelerated promotion
by taking a limited competitive examination by demonstrating their
merit. Bearing in mind the distinct nature of the test under Rule 8, it
cannot be gainsaid that there is a valid basis for imposing a distinct
requirement, in this case, of an eligibility cut-off both in the written
test and the viva voce independently. The fundamental point is that
each of the three avenues for appointment to the Higher Judicial
Service are distinct and are based on classifications having a nexus
to the object and purpose sought to be achieved. Whether such a
requirement is violative of Articles 233 and 235 of the Constitution is
a separate matter which would have to be adjudicated independently,
which we will do in the subsequent part of this judgment.
40. It is true, as has been submitted on behalf of the unsuccessful
candidates, that the Shetty Commission had declined to impose a
minimum cut-off in the viva voce conducted for appointments to the
Service by direct recruitment. The Shetty Commission appears to
have been impelled to do so to avoid an element of subjectivity.15
Based on this, the unsuccessful candidates sought to urge that the
same rationale must apply to the viva voce which was held in the
normal process of promotion.
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

14 “Provided that the High Court shall in addition to the above competitive examination take into consider-
ation any of the criteria as specified in Rule 8 above..”
15 Shetty Commission Report, [10.97]
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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”16, without making any observation about the
desirability or otherwise of minimum cutoffs for viva voce generally.
We do not read the decision of this Court in All India Judges’
Association (supra) as precluding the High Court from doing so
based on the exigencies of the Service in the State. In any case,
based on the discussion above, the three modes of recruitment have
been reasonably classified and different requirements have been
prescribed for each. As such, what may or may not have been held
in respect of the viva voce in direct recruitments may not necessarily
apply to the viva voce requirement in recruitments through promotions.
42. It is important to bear in mind that the Higher Judicial Services require
the selection of judicial officers of mature personality and requisite
professional experience. In-service judicial officers are expected
to have a greater familiarity with the law and the procedure based
on their experience as judicial officers. While an objective written
examination can be the best gauge of the legal knowledge of a
candidate, the viva voce offers the best mode of assessing the overall
personality of a candidate. In Lila Dhar v. State of Rajasthan,17 this
Court noted the importance of giving necessary weightage to the
interview test in the following words:
“6. Thus, the written examination assesses the man’s
intellect and the interview test the man himself and “the
twain shall meet” for a proper selection. If both written
examination and interview test are to be essential features
of proper selection, the question may arise as to the
weight to be attached respectively to them. In the case of
admission to a college, for instance, where the candidate’s
personality is yet to develop and it is too early to identify
the personal qualities for which greater importance may

16 All India Judges’ Association (supra), [27].
17 [1982] 1 SCR 320 : (1981) 4 SCC 159
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have to be attached in later life, greater weight has per
force to be given to performance in the written examination.
The importance to be attached to the interview-test must
be minimal. That was what was decided by this Court in
Periakaruppan v. State of Tamil Nadu [(1971) 1 SCC 38 :
(1971) 2 SCR 430] , Ajay Hasia v. Khalid Mujib Sehravardi
[(1981) 1 SCC 722; 1981 SCC (L&S) 258 : AIR 1981 SC
487] and other cases. On the other hand, in the case
of services to which recruitment has necessarily
to be made from persons of mature personality,
interview test may be the only way, subject to basic
and essential academic and professional requirements
being satisfied. To subject such persons to a written
examination may yield unfruitful and negative results,
apart from its being an act of cruelty to those persons.
There are, of course, many services to which recruitment
is made from younger candidates whose personalities are
on the threshold of development and who show signs of
great promise, and the discerning may in an interview-
test, catch a glimpse of the future personality. In the case
of such services, where sound selection must combine
academic ability with personality promise, some weight
has to be given, though not much too great a weight,
to the interview-test. There cannot be any rule of thumb
regarding the precise weight to be given. It must vary from
service to service according to the requirements of the
service, the minimum qualifications prescribed, the age
group from which the selection is to be made, the body
to which the task of holding the interview-test is proposed
to be entrusted and a host of other factors. It is a matter
for determination by experts. It is a matter for research. It
is not for courts to pronounce upon it unless exaggerated
weight has been given with proven or obvious oblique
motives. The Kothari Committee also suggested that in
view of the obvious importance of the subject, it may be
examined in detail by the Research Unit of the Union
Public Service Commission.”
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43. In Taniya Malik v. Registrar General of the High Court of Delhi,18
the petitioners challenged the prescription of minimum cut-off marks
for the viva voce during the selection process of the Delhi Judicial
Service Examination 2015. A two-Judge Bench of this Court declined
to accept the challenge of the petitioners on the ground that “it is
desirable to have the interview and it is necessary to prescribe
minimum passing marks for the same when the appointment in the
higher judiciary to the post of District Judge is involved.” The court
further observed that the interview is the best method of judging “the
performance, overall personality and the actual working knowledge
and capacity to perform otherwise the standard of judiciary is likely
to be compromised.”
44. In the present case, the High Court has come to the conclusion that
apart from seeking proficiency in the substantive knowledge of law,
based on the written test, in-service judicial officers must possess
communication and other skills which would emerge in the course
of an interview. We must be mindful of the fact that 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 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.
ii. The Rules can be supplemented to fill in gaps
45. That leads us to the analysis of the provisions of Rule 6, on the
one hand, and Rule 8, on the other. As we have already noticed,
Rule 6(1)(a) provides for promotion to 65% of the posts to the
Higher Judicial Service on the basis of the principle of merit- cum-
seniority and the passing of a suitability test. The principle of merit-
cum- seniority is an approved method of selection where merit

18 [2018] 10 SCR 348 : (2018) 14 SCC 129
[2024] 2 S.C.R. 1165

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

is the determinative factor and seniority plays a less significant
role.19 Where the principle of ‘merit-cum- seniority’ is the basis,
the emphasis is primarily on the comparative merit of the judicial
officers being considered for promotion. Resultantly, even a junior
officer who demonstrates greater merit than a senior officer will be
considered for promotion.
46. Through their letter dated 02 March 2023, the State Government
raised an objection to the recommendations made by the High
Court. The State requested the High Court to “clarify the non-
recommendation” of certain officers who were higher in seniority to
the officers recommended by the High Court. While as an abstract
proposition, promotion of judicial officers on the basis of seniority
alone may impart objectivity to the entire process, this Court has
also cautioned against using seniority as the sole criterion for
promotion in such cases. The Higher or Superior Judicial Service is
a gateway to eventual appointments to the High Court. Steps may
legitimately be taken by the High Court to ensure that appointments
to the higher echelons of the judiciary does not become a parade
of mediocrity.
47. In Sant Ram Sharma v. State of Rajasthan,20 a Constitution Bench
of this Court held that consideration of merit along with seniority in
the procedure of promotion is not violative of Article 14 and 16 of
the Constitution. It was also observed:
“9. [...] The question of proper promotion policy depends
on various conflicting factors. It is obvious that the only
method in which absolute objectivity can be ensured is for
all promotions to be made entirely on grounds of seniority.
That means that if a post falls vacant it is filled by the
person who has served longest in the post immediately
below. But the trouble with the seniority system is that
it is so objective that it fails to take any account of
personal merit. As a system it is fair to every official
except the best ones; an official has nothing to win or
lose provided he does not actually become so inefficient
that the disciplinary action has to be taken against him.

19 B V Sivaiah v. K. Addanki Babu, [1998] 3 SCR 782 : (1998) 6 SCC 720
20 [1968] 1 SCR 111 : 1967 SCC OnLine SC 16
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But, though the system is fair to the officials concerns, it
is a heavy burden on the public and a great strain on the
efficient handling of public business. [.]”
(emphasis supplied)
48. According to Rule 6(1)(a), the inter-se merit of the judicial officers
plays a greater role in making promotions. The passing of a suitability
test is a measure of assessment of the merit of the judicial officers
under consideration for promotion. The passing of a suitability test,
in other words, is complemented by the requirement of observing
the principle of merit-cum-seniority. Rule 8 particularly provides for
the procedure for promotion for “assessing and testing the merit and
suitability” of the judicial officers. It states that the High Court “may”
hold a written objective test of 75 marks and viva voce of 25 marks
in order to ascertain and examine the legal knowledge and efficiency
in the legal field of the judicial officers. It is important to note that
the use of the word “may” in Rule 8 confers discretion on the High
Court with respect to the conduct of the written objective test and
viva voce. In comparison, Rule 9, which lays down the procedure
for a limited competitive examination while implementing Rule 6(1)
(b), uses the word “shall” in a mandatory sense. The use of the word
“may” in Rule 8 indicates that the High Court has certain discretion
in terms of the conduct of the written objective test and viva voce
for promotion of judicial officers in terms of Rule 6(1)(a).
49. Moreover, the Rules in the present case are entirely silent in regard
to the prescription of a minimum eligibility for clearing a competitive
test, on the one hand, and the viva voce, on the other hand. If the
Rules were to specifically provide in a given case that the criterion
for eligibility would be on the combined marks of both the written test
and the viva voce, the matter would have been entirely different.21
Rule 6(1)(a) and Rule 8 being silent as regards the manner in which
merit and suitability would be determined, administrative instructions
can supplement the Rules in that regard. This is not a case where
the Rules have made a specific provision in which event the
administrative instructions cannot transgress a rule which is being
made in pursuance of the power conferred under Article 309 of the
Constitution. For instance, if the Rules were to provide that there

21 P K Ramachandra Iyer v. Union of India, [1984] 2 SCR 200 : (1984) 2 SCC 141, [44]
[2024] 2 S.C.R. 1167

Dr Kavita Kamboj v. High Court of Punjab and Haryana & Ors

would be a minimum eligibility requirement only in the written test,
conceivably, it may not be open to prescribe a minimum eligibility
requirement in the viva voce by an administrative instruction. Similarly,
if the Rules were to provide that the eligibility cut-off would be taken
on the basis of the overall marks which are obtained in both the
written test and the viva voce, conceivably, it would not be open to
the administrative instructions to modify the terms.
50. The appropriate authority cannot amend or supersede statutory rules
by administrative actions. However, it is open to it to issue instructions
to fill up the gaps and supplement the rules where they are silent
on any particular point.22 Such instructions have a binding force
provided they are subservient to the statutory provisions and have
been issued to fill up the gaps between the statutory provisions.23
51. In K H Siraj v. High Court of Kerala,24 this Court was called upon
to determine the validity of the decision of the High Court of Kerala
in prescribing minimum marks for the oral examination as a condition
of eligibility for selection as Munsif Magistrate. The relevant provision,
that is, Rule 7 of the Kerala Judicial Service Rules 1991, mandated
the High Court to hold written and oral examinations and prepare a
list of candidates considered suitable for appointment to Category
2 posts. This Court held that even though Rule 7 was silent on the
question of minimum marks for oral examination, it was open to the
High Court to supplement the Rule:
“62. Thus it is seen that apart from the amplitude of the
power under Rule 7 it is clearly open for the High Court
to prescribe benchmarks for the written test and oral
test in order to achieve the purpose of getting the best
available talent. There is nothing in the Rules barring such
a procedure from being adopted. It may also be mentioned
that executive instructions can always supplement the
Rules which may not deal with every aspect of a matter.
Even assuming that Rule 7 did not prescribe any particular
minimum, it was open to the High Court to supplement the

22 Sant Ram Sharma v. State of Rajasthan, [1968] 1 SCR 111 : 1967 SCC OnLine SC 16 [7]; State of
Gujarat v Akhilesh C Bhargav, [1987] 3 SCR 1091 : (1987) 4 SCC 482, [7]
23 State of Uttar Pradesh v. Chandra Mohan Nigam, [1978] 1 SCR 521 : (1977) 4 SCC 345 [26];
24 [2006] Supp. 2 SCR 790 : (2006) 6 SCC 395
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rule with a view to implement them by prescribing relevant
standards in the advertisement for selection.”
52. In the present case, the Rules are silent in regard to the manner
in which the merit or suitability would be determined. In view of the
silence of the Rules, it is open to the High Court in the exercise of
its administrative authority to provide the modalities in which merit
or suitability would be determined.
iii. Sivanandan C T
53. Next, it would become necessary to dwell on a recent decision of
the Constitution Bench of this Court in Sivanandan C T (supra).
The issue in that case pertained to the validity of the selection
process to the Higher Judicial Services through direct recruitment
conducted by the High Court of Kerala. 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.” Thereafter in 2012, the High Court of Kerala
published its Scheme for the examination for recruitment of
members of the Bar to the Kerala Higher Judicial Service. The
Scheme specifically provided that there shall be no cut-off of
marks in the viva voce. Following this, the High Court issued a
notification in 2015 inviting applications from qualified candidates for
appointment as District and Sessions Judges by direct recruitment
from bar. The notification of the High Court indicated that candidates
who secured a minimum of 50% marks in the written test (relaxed
to 40% for SC/ST candidates) would qualify for the viva voce.
The notification also specified that the aggregate of marks in the
written examination and the viva voce would form the basis of
the ultimate merit list. In view of the notification, the High Court
conducted the written examination and viva voce of the qualified
candidates. When the process of selection had commenced, all
candidates were put on notice of the fact that:
(i) The merit list would be drawn up on the basis of the aggregate
marks obtained in the written examination and viva voce;
(ii) Candidates whose marks were at least at the prescribed
minimum in the written examination would qualify for the viva
voce; and
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(iii) No cut-off was applicable in respect of the marks to be obtained
in the viva voce while drawing up the merit list in the aggregate.
54. After the conduct of the viva voce, the High Court decided to
apply a minimum cut-off in the viva voce as a qualifying criterion.
Subsequently, the final merit list of successful candidates was
published. The decision of the High Court to prescribe a minimum
cut-off for the viva voce was challenged for being contrary to the
statutory rules which prescribed that the merit list shall be drawn
up on the basis of the aggregate marks obtained in the written
examination and viva voce.
55. In the backdrop of these facts, this Court held:
“14. The decision of the High Court to prescribe a cut-off for
the viva-voce examination was taken by the Administrative
Committee on 27 February 2017 after the viva-voce was
conducted between 16 and 24 January 2017. The process
which has been adopted by the High Court suffers from
several infirmities. Firstly, the decision of the High Court was
contrary to Rule 2(c)(iii) which stipulated that the merit list
would be drawn up on the basis of the marks obtained in
the aggregate in the written examination and the viva-voce;
secondly, the scheme which was notified by the High Court
on 13 December 2012 clearly specified that there would be no
cut off marks in respect of the viva-voce; thirdly, the notification
of the High Court dated 30 September 2015 clarified that the
process of short listing which would be carried out would be
only on the basis of the length of practice of the members of
the Bar, should the number of candidates be unduly large;
and fourthly, the decision to prescribe cut off marks for the
viva-voce was taken much after the viva-voce tests were
conducted in the month of January 2017.”
56. Moreover, this Court took note of the fact that subsequently the
rules in the State of Kerala were amended in 2017 to prescribe a
cut-off of 35% marks in the viva voce examination which was not
the prevailing legal position when the process of selection was
initiated in that case. The above extract from the decision of this
Court in Sivanandan C T (supra) reveals that it was a cumulative
set of factors set out in paragraph 14 which have led to the ultimate
determination. The statutory rules had indicated in that case that the
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merit list would be prepared on the basis of the aggregate marks in
the written examination and the viva voce. The Scheme of the High
Court had specified that there would be no separate cut-off for the
viva voce. Moreover, the process of shortlisting, as prescribed, was
to be on the basis of the length of the service. Finally, the decision
to prescribe a cut-off in the viva voce was taken much after the test
was conducted.
57. The facts as they stand in the present case are clearly in contrast
to those contained in Sivanandan C T (supra). As opposed to the
Rules having made a specific provision, the Rules were clearly silent
in the present case. It is in this backdrop, in the face of the silence
of the statutory rules that the High Court had, in its initial Full Court
Resolution dated 29 January 2013, prescribed an overall cut-off of
50% of combined marks in the written test and in the viva voce. The
High Court, while amending the text of its Full Court Resolution of 29
January 2013, had done so in the exercise of the same administrative
capacity which it had wielded while formulating the original Resolution.
Hence, the Resolution of the High Court dated 30 November 2021
cannot be faulted in that regard.
58. The unsuccessful candidates in the present case have further relied
on Sivanandan C T (supra) to contend that the absence of notice to
the candidates about the imposition of the minimum cut-off marks for
the viva voce contravenes their legitimate expectation. In Sivanandan
C T (supra), this Court held that an individual who claims a benefit
or entitlement based on the doctrine of legitimate expectation has
to establish: (i) the legitimacy of the expectation; and (ii) that the
denial of the legitimate expectation led to a violation of Article 14.
In Sivanandan C T (supra), the statutory rules coupled with the
Scheme of the High Court generated a legitimate expectation that
(i) the merit list would be drawn based on the aggregate of the total
marks received in the written examination and viva voce; and (ii)
there would be no minimum cut-off marks for the viva voce. However,
in the present case neither the statutory Rules, nor the High Court
committed that there would be no cut-off marks for the viva voce
so as to give rise to such a legitimate expectation on behalf of the
petitioners. Furthermore, the decision of the High Court to apply the
minimum cut-off marks for the viva voce is grounded in legality, and
therefore, cannot be faulted for contravening the established practice.
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iv. Articles 233, 234 and 235 of the Constitution of India
59. That leads us to the analysis of the provisions of Articles 233, 234
and 235 of the Constitution. Clause (1) of Article 233 stipulates that
appointment of persons to be District Judges in the State and their
posting and promotion shall be made by the Governor in consultation
with the High Court exercising jurisdiction in the State. According to
Article 234, appointments of persons other than District Judges to
the Judicial Service of a State are to be made by the Governor in
accordance with the rules made in that behalf after consulting the
State Public Service Commission and the High Court exercising
jurisdiction in relation to the State. Control over the “Subordinate
Courts” under Article 235 is vested in the High Court. Article 235
provides that:
“The control over district courts and courts subordinate
thereto including the posting and promotion of, and the
grant of leave to, persons belonging to the judicial service
of a State and holding any post inferior to the post of district
judge shall be vested in the High Court, but nothing in this
article shall be construed as taking away from any such
person any right of appeal which he may under the law
regulating the conditions of his service or as authorising the
High Court to deal with him otherwise than in accordance
with the conditions of his service prescribed under such
law.”
60. These provisions have been dealt with in several decisions of this
Court, including in decisions of Constitution Benches. In the course
of its judgment, the High Court has elaborately dealt with several
of these judgments.
61. In Chandra Mohan v. State of Uttar Pradesh25, a Constitution
Bench of this Court, speaking through Chief Justice K Subba Rao,
held that the constitutional mandate under Article 233 is that the
exercise of the power of appointment by the Governor is conditioned
by consultation with the High Court. The object of consultation is
that the High Court is expected to know better than the Governor
the suitability of a person belonging either to the Judicial Service or

25 [1967] 1 SCR 77 : (1967) 1 SCR 77
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to the Bar for appointment as a District Judge. The Court held that
the mandate would stand disobeyed if the Governor either did not
consult the High Court at all or if it were to consult the High Court
or any other person in a manner not contemplated. The Court held
that in case the Governor consults an authority other than the High
Court, it would amount to indirect infringement of the mandate of the
Constitution. In situations where the Constitution sought to provide for
more than one consultant, it did so (for e.g. Articles 124 (2), 217(1)).
Impliedly, this Court held that the duty of consultation is intertwined
with the exercise of power itself, and such power can be exercised
only in consultation with the person or persons designated under the
relevant provisions of the Constitution. Hence, it was held that if the
Rules empowered the Governor to appoint a person as District Judge
in consultation with a person or authority other than the High Court,
the appointment would not be in accordance with the provisions of
Article 233. The Court observed as follows:
“We are assuming for the purpose of these appeals that
the “Governor” under Art. 233 shall act on the advice
of the Ministers. So, the expression “Governor” used in
the judgment means Governor acting on the advice of
the Ministers. The constitutional mandate is clear. The
exercise of the power of appointment by the Governor is
conditioned by his consultation with the High Court, that is
to say, he can only appoint a person to the post of district
judge in consultation with the High Court. The object of
consultation is apparent the High Court is expected to
know better than the Governor in regard to the suitability
or otherwise of a person, belonging either to the “judicial
service” or to the Bar, to be appointed as a district judge.
Therefore, a duty is enjoined on the Governor to make
the appointment in consultation with a body which is the
appropriate authority to give advice to him. This mandate
can be disobeyed by the Governor in two ways, namely,
(i) by not consulting the High Court at all, and (ii) by
consulting the High Court and also other persons. In one
case he directly infringes the mandate of the Constitution
and in the other he indirectly does so, for his mind may
be influenced by other persons not entitled to advise him.
That this constitutional mandate has both a negative and
[2024] 2 S.C.R. 1173

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positive significance is made clear by the other provisions
of the Constitution. Wherever the Constitution intended
to provide more than one consultant, it has said so:
see Arts. 124(2) and 217(1). Wherever the Constitution
provided for consultation of a single body or individual
it said so: see Art. 222. Art. 124(2) goes further and
makes a distinction between persons who shall
be consulted and persons who may be consulted.
These provisions indicate that the duty to consult
is so integrated with the exercise of the power that
the power can be exercised only in consultation with
the person or persons designated therein. To state it
differently, if A is empowered to appoint B in consultation
with C, he will not be exercising the power in the manner
prescribed if he appoints B in consultation with C and D.”
(emphasis added)
62. In matters of appointment of judicial officers, the opinion of the High
Court is not a mere formality because the High Court is in the best
position to know about the suitability of candidates to the post of
District Judge.26 The Constitution therefore expects the Governor to
engage in constructive constitutional dialogue with the High Court
before appointing persons to the post of District Judges under
Article 233. In State of Haryana v Inder Prakash Anand HCS27, a
Constitution Bench of this Court speaking through Chief Justice AN
Ray observed that the High Court is acquainted with the capacity of
work of the members already in service. Underlining the significance
of the High Court’s ‘control’ over the appointments under Article 235,
it was held that the High Court’s opinion will have a binding effect
on the Governor according to the constitutional scheme. This Court
noted as follows:
“18. The control vested in the High Court is that if the High
Court is of opinion that a particular judicial officer is not fit
to be retained in service, the High Court will communicate
that to the Governor because the Governor is the authority
to dismiss, remove, reduce in rank or terminate the

26 Chandramouleshwar Prasad v. Patna High Court, [1970] 2 SCR 666 : (1969) 3 SCC 56
27 [1976] Supp. 1 SCR 603 : (1976) 2 SCC 977
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appointment. In such cases it is the contemplation in
the Constitution that the Governor as the head of the
State will act in harmony with the recommendation of
the High Court. If the recommendation of the High Court
is not held to be binding on the State consequences
will be unfortunate. It is in public interest that the State will
accept the recommendation of the High Court. The vesting
of complete control over the subordinate Judiciary in
the High Court leads to this that the decision of the
High Court in matters within its jurisdiction will bind the
State. “The Government will act on the recommendation
of the High Court. That is the broad basis of Article 235.””
(emphasis added)
63. In State of Bihar v Bal Mukund Sah28, another Constitution Bench
held that the constitutional scheme guaranteeing the independence
of the Judiciary and the separation of power between the Executive
and the Judiciary as basic features of the Constitution must be
borne in mind. It was held that while Article 309 of the Constitution
creates a permissible field of regulation by the Legislature, regarding
conditions of service of already recruited judicial officers, it does not
mean that the High Court’s opinion can be overlooked. The process
of appointments to the District Judiciary was held to be insulated from
interference by way of the ‘complete code’ for the purpose laid down
under Articles 233 and 234. This intention to insulate the process,
the Court observed, is clear from the fact that these provisions
are not subject to any other law enacted by the Legislature.29 The
Constitution intended to create a complete and insulated scheme
of recruitment to the District Judiciary. Speaking in the context of
the rules under Articles 234, 235 and 309 specifically, this Court
observed that consultation with the High Court was indispensable.
64. The Court observed:
“58... It is now time for us to take stock of the situation.
In the light of the constitutional scheme guaranteeing
independence of the Judiciary and separation of powers

28 [2000] 2 SCR. 299 : (2000) 4 SCC 640
29 ibid at para 35.
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between the Executive and the Judiciary, the Constitution-
makers have taken care to see by enacting relevant
provisions for the recruitment of eligible persons to
discharge judicial functions from the grass-root level of
the Judiciary up to the apex level of the District Judiciary,
that rules made by the Governor in consultation with
the High Court in case of recruitment at grass-root
level and the recommendation of the High Court for
appointments at the apex level of the District Judiciary
under Article 233, remain the sole repository of power
to effect such recruitments and appointments. ...For
judicial appointments the real and efficacious advice
contemplated to be given to the Governor while framing
rules under Article 234 or for making appointments on
the recommendations of the High Court under Article
233 emanates only from the High Court which forms the
bedrock and very soul of these exercises. It is axiomatic
that the High Court, which is the real expert body in the
field in which vests the control over the Subordinate
Judiciary, has a pivotal role to play in the recruitments
of judicial officers whose working has to be thereafter
controlled by it under Article 235 once they join the
Judicial Service after undergoing filtering process at
the relevant entry points. It is easy to visualise that
when control over the District Judiciary under Article
235 is solely vested in the High Court, then the High
Court must have a say as to what type of material
should be made available to it both at the grass-root
level of the District Judiciary as well as the apex level
thereof so as to effectively ensure the dispensation of
justice through such agencies with the ultimate object
of securing efficient administration of justice for the
suffering litigating humanity. Under these circumstances,
it is impossible to countenance bypassing of the High Court
either at the level of appointment at the grass-root level or
at the apex level of the District Judiciary. The rules framed
by the Governor as per Article 234 after following
due procedure and the appointments to be made by
him under Article 233 by way of direct recruitment
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to the District Judiciary solely on the basis of the
recommendation of the High Court clearly project a
complete and insulated scheme of recruitment to the
Subordinate Judiciary. This completely insulated scheme
as envisaged by the Founders of the Constitution cannot be
tinkered with by any outside agency dehors the permissible
exercise envisaged by the twin Articles 233 and 234.
(emphasis added)
65. In numerous decisions, this Court has emphasized the importance
of the control which is wielded by the High Courts over the District
Judiciary.30 Undoubtedly, it is equally well-settled that when the
Rules under Article 309 hold the field, these Rules have to be
implemented. Where specific provisions are made in the Rules framed
under Article 309, it would not be open to the High Court to issue
administrative directions either in the form of the Full Court Resolution
or otherwise, that are at inconsistent with the mandate of the Rules.
On the other hand, in cases such as the one at hand, where the
Rules were silent, it is open to the High Court to issue a Full Court
Resolution. The High Court did so initially on 29 January 2013, but
modified the Resolution on 30 November 2021 by prescribing that
candidates for appointment to the Higher Judicial Service should
have a minimum of 50% both in the written test as well as in the
viva voce independently. The wisdom of the prescription is clear. A
candidate should not just demonstrate the ability to reproduce their
knowledge by answering questions in the suitability test, but must
also demonstrate both practical knowledge and the application of the
substantive law in the course of the interview. The Rules being silent,
it was clearly open to the High Court to prescribe such a criterion
as it did in 2013, when the 50% cutoff was prescribed on aggregate
scores and also, in 2021, when the 50% cutoff was prescribed on
the written test scores and the viva voce separately.
66. We are in agreement with the High Court that the State Government
travelled beyond the remit of the consultation with the High Court by
referring the matter to the Union Government. Any issue between
the High Court and the State Government should have been ironed

30 State of West Bengal v. Nripendra Nath Bagchi, [1966] 1 SCR 771 : 1965 SCC OnLine SC 22; High
Court of Punjab and Haryana v. State of Haryana, [1975] 3 SCR. 365 : (1975) 1 SCC 843, High Court
of Judicature for Rajasthan v. PP Singh, [2003] 1 SCR 593 : (2003) 4 SCC 239.
[2024] 2 S.C.R. 1177

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out in the course of the consultative process within the two entities.
The State Government was bound to consult only the High Court
in the manner elaborated by the abovementioned judgements. Any
other exercise de hors such consultation would not be in accordance
with the scheme of the Constitution.
D. Conclusion
67. We have, therefore, come to the conclusion that the State Government
was plainly in error in finding fault with the process which is being
followed by the High Court and in concluding that the decision of
the High Court amounted to an arbitrary exercise of power. Though
the Solicitor General pointed out that the expressions “arbitrary”
and “betrayal of trust” were used in the communication of the State
Government placing reliance on an earlier judgment of this Court,
we would leave the matter at that while affirming the conclusion of
the High Court.
68. For the above reasons, we hold that the impugned judgment and
order of the High Court dated 20 December 2023 does not suffer
from any legal or other infirmity. The appeals shall accordingly stand
dismissed.
69. Pending applications, if any, stand disposed of.

Headnotes prepared by: Result of the case:
Prastut Mahesh Dalvi, Hony. Associate Editor Appeals dismissed.
(Verified by: Liz Mathew, Sr. Adv.)