Supreme Court of India
SIVANANDAN C T AND OTHERSversusHIGH COURT OF KERALA AND OTHERS
- Citation
- 2023 INSC 709
- Decided
- 12 July 2023
- Disposal
- Disposed off
- Bench
- D Y CHANDRACHUD
Holding
The imposition of a minimum cut‑off for the viva‑voce by the Kerala High Court was ultra vires the 1961 Rules and arbitrary, violating the petitioners' substantive legitimate expectation under Article 14, but no relief could be granted due to public‑interest considerations.
Summary
The Kerala High Court, after conducting a written test and viva‑voce for recruitment to the Higher Judicial Service, imposed a minimum cut‑off for the viva‑voce despite the 1961 Rules and the 2012 examination scheme expressly providing that no cut‑off would apply. Eleven candidates challenged this decision, arguing that it was ultra vires, arbitrary and frustrated their substantive legitimate expectation under Article 14 of the Constitution. The Supreme Court held that the High Court’s amendment of the selection criteria without a statutory amendment was indeed beyond its powers and violated the petitioners’ legitimate expectation. However, the Court declined to order the unseating of the judges already appointed or to induct the petitioners, citing the public interest and the passage of more than six years since the appointments. Consequently, the writ petitions were dismissed and the matter was disposed of without granting any relief to the petitioners.
Issues considered
- The High Court's imposition of a minimum cut‑off for the viva‑voce examination was ultra vires the Kerala State Higher Judicial Services Special Rules, 1961.
- Whether the cut‑off violated the petitioners' substantive legitimate expectation and Article 14 of the Constitution.
- Whether the petitioners are entitled to be inducted into the Higher Judicial Service despite the lapse of time.
- Whether the High Court's decision can be set aside or remedied.
Legislation cited
- Constitution of Indias. Article 14, s. Article 233, s. Article 235, s. Article 309
- Kerala State Higher Judicial Services Special Ruless. Rule 2(c)(iii)
Subjects
legitimate expectationArticle 14administrative lawjudicial recruitmentviva voce cut‑offultra viresgood administrationpublic interestKerala Higher Judicial Serviceconstitutional law
Judgment
[2023] 11 S.C.R. 674 : 2023 INSC 709
CASE DETAILS
SIVANANDAN C T AND OTHERS
v.
HIGH COURT OF KERALA AND OTHERS
(Writ Petition (Civil) No. 229 of 2017)
JULY 12, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI,
HRISHIKESH ROY, PAMIDIGHANTAM SRI NARASIMHA,
PANKAJ MITHAL, MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: Rule 2(c)(iii) of the Kerala State Higher
Judicial Services Special Rules 1961 stipulates that 25% of the posts in the
category shall be filled by direct recruitment from the Bar “on the basis of
aggregate marks/grade obtained in a competitive examination and viva-voce
conducted by the High Court”. The scheme of examination specifically
stipulated that there shall be no cut off marks for the viva voce. Whether
the decision of the High Court to prescribe a cut-off for the viva-voce
examination was arbitrary.
Kerala State Higher Judicial Services Special Rules 1961 – rule 2(c)
(iii) – The scheme which was notified by the High Court on 13.12.2012
clearly specified that there would be no cut off marks in respect of the
viva-voce – However, the decision of the High Court to prescribe a cut-
off for the viva-voce examination was taken much after the viva-voce
tests were conducted – Propriety:
Held: The Administrative Committee of the High Court decided to
impose a cut off for the viva-voce examination actuated by the bona fide
reason of ensuring that candidates with requisite personality assume judicial
office – Such a change would be required to be brought in by a substantive
amendment to the Rules which came in much later – This is not a case
where the rules or the scheme of the High Court were silent – Where the
statutory rules are silent, they can be supplemented in a manner consistent
674
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 675
OTHERS
with the object and spirit of the Rules by an administrative order – In the
present case, the statutory rules expressly provided that the select list would
be drawn up on the basis of the aggregate of marks obtained in the written
examination and the viva-voce – This was further elaborated in the scheme
of examination which prescribed that there would be no cut off marks for
the viva-voce – This position is also reflected in the notification of the High
Court dated 30.09.2015 – In this backdrop, the decision of the High Court
suffered from its being ultra vires the 1961 Rules besides being manifestly
arbitrary. [Paras 15 and 16]
Doctrines – Doctrine of legitimate expectation – Claim under:
Held: 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 the
violation of Article 14. [Para 44]
Doctrines – Doctrine of legitimate expectation – Whether the High
Court’s decision frustrates the legitimate expectation of the petitioners:
Held: Rule 2(c)(iii) of the 1961 Rules provided at the material time that
25% of the posts of District and Sessions Judges should be filled by direct
recruitment from the Bar on the basis of aggregate marks/grade obtained in
the written examination and the viva-voce conducted by the High Court – The
scheme of examination specifically stipulates that there shall be no cut off
marks for the viva voce – The petitioners would have expected no minimum
cut-off for the viva voce in view of the express stipulation in the scheme of
examination – Both the above expectations of the petitioners are legitimate
as they are based on the sanction of statutory rules, scheme of examination
– The decision of the Administrative Committee to depart from the expected
course of preparing the merit list of the selected candidates is contrary to the
unamended 1961 Rules – In the instant case, the requirement of a minimum
cut-off for the viva-voce was introduced after the viva voce was conducted –
The petitioners had no notice that such a requirement would be introduced for
the viva voce examination – The High Court’s decision to apply a minimum
cut-off for the viva voce frustrated the substantive legitimate expectation of
the petitioners – Since, the decision of the High Court is legally untenable and
fails on the touchstone of fairness, consistency, and predictability, such a course
of action is arbitrary and violative of Article 14. [Paras 46, 47, 51 and 52]
676 SUPREME COURT REPORTS [2023] 11 S.C.R.
Principles – Principles of good administration:
Held: The principles of good administration require that the decisions
of public authorities must withstand the test of consistency, transparency,
and predictability to avoid being termed as arbitrary and violative of Article
14. [Para 55]
Doctrines – Doctrine of legitimate expectation – Limitation in
application of:
Held: A public authority must objectively demonstrate by placing
relevant material before the court that its decision was in the public interest
to frustrate a claim of legitimate expectation. [Para 55]
Directions – The High Court’s decision to apply a minimum cut-
off for the viva voce frustrated the substantive legitimate expectation
of the petitioners – The decision of the High Court is legally untenable
– Whether the petitioners can be inducted into the Higher Judicial
Service:
Held: In terms of relief, it would be contrary to the public interest to
direct the induction of the petitioners into the Higher Judicial Service after
the lapse of more than six years – Candidates who were selected nearly six
years ago cannot be unseated – They were all qualified and have been serving
the district judiciary of the state – Unseating them at this stage would be
contrary to public interest – To induct the petitioners would be to bring in
new candidates in preference to those who are holding judicial office for a
length of time – To deprive the State and its citizens of the benefit of these
experienced judicial officers at a senior position would not be in public
interest. [Para 55]
LIST OF CITATIONS AND OTHER REFERENCES
Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1: [2006]
3 SCR 953 – followed.
Food Corporation of India v. Kamdhenu Cattle Feed Industries
(1993) 1 SCC 71 : [1992] 2 Suppl. SCR 322; Union of India v. Hindustan
Development Corporation (1993) 3 SCC 499: [1993] 3 SCR 128; Punjab
Communication Ltd v. Union of India (1999) 4 SCC 727: [1999] 2 SCR 1033;
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 677
OTHERS
Ram Pravesh Singh v. State of Bihar (2006) 8 SCC 381: [2006] 6 Suppl.
SCR 512; State of Jharkhand v. Brahmputra Metallics 2020 SCC OnLine
SC 968; SEBI v. Sunil Krishna Khaitan (2023) 2 SCC 643 – relied on.
Sivanandan C T v. High Court of Kerala (2018) 1 SCC 239: [2017]
13 SCR 226; Tej Prakash Pathak and others v. Rajesthan High Court and
others (2013) 4 SCC 540; K. Manjusree v. State of Andhra Pradesh and
another (2008) 3 SCC 512: [2008] 2 SCR 1025; State of Haryana v. Subash
Chander Marwaha (1974) 3 SCC 220: [1974] 1 SCR 165; State of Bihar v.
Bal Mukund Sah (2000) 4 SCC 640: [2000] 2 SCR 299; M P Oil Extraction
v. State of M P (1997) 7 SCC 592: [1997] 1 Suppl. SCR 671; National
Building Construction Corporation v. S Raghunathan (1998) 7 SCC 66 :
[1998] 1 Suppl. SCR 156; Bannari Amman Sugars Ltd v. CTO (2005) 1 SCC
625: [2004] 6 Suppl. SCR 264; Sethi Auto Service Station v. DDA (2009)
1 SCC 180 : [2008] 14 SCR 598; Monnet Ispat & Energy Ltd v. Union of
India (2012) 11 SCC 1: [2012] 7 SCR 644; P Suseela v. University Grants
Commission (2015) 8 SCC 129 : [2015] 5 SCR 643; Kerala State Beverages
(M&M) Corp Ltd. v. P P Suresh (2019) 9 SCC 710: [2019] 17 SCR 164;
State of Jharkhand v. Brahmputra Metallics 2020 SCC OnLine SC 968;
Union of India v. Hindustan Development Corp (1993) 3 SCC 499 : [1993]
3 SCR 128; State of Bihar v. Shyama Nandan Mishra, 2022 SCC OnLine
SC 554; NOIDA Entrepreneurs Association v. NOIDA (2011) 6 SCC 508
: [2011] 8 SCR 25; State of Bihar v. Shyama Nandan Mishra 2022 SCC
OnLine SC 554; S G Jaisinghani v. Union of India 1967 SCC OnLine SC
6; Bannari Amman Sugars Ltd v. CTO (2005) 1 SCC 625: [2004] 6 Suppl.
SCR 264; Union of India v. Lt. Col. P K Choudhary (2016) 4 SCC 236
: [2016] 2 SCR 426; State of Jharkhand v. Brahmputra Metallics 2020
SCC OnLine SC 968 – referred to.
Salemi v. Mackellar [1977] HCA 26; Schmidt v. Secretary of State
for Home Affairs [1969] 2 WLR 337; O’Reilly v. Mackman [1983] 2 AC
237; Attorney General of Hong Kong v. Ng Yuen Shiu [1983] 2 WLR 735;
Council of Civil Service Unions v. Minister for the Civil Service [1985] AC
374; R v. North and East Devon Health Authority, ex parte Coughlan [2001]
QB 213; Nadarajah v. Secretary of State for the Home Department [2005]
EWCA Civ 1363; R v. Department of Education and Employment [2000] 1
WLR 1115; Paponette v. Attorney General of Trinidad and Tobago [2012]
678 SUPREME COURT REPORTS [2023] 11 S.C.R.
1 AC 1; Regina (Bibi) v. Newham London Borough Council [2002] 1 WLR
237 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 229 of
2017.
(Under Article 32 of the Constitution of India)
With
Writ Petition (Civil) Nos. 379, 618 and 232 of 2017.
Appearances:
Rana Mukherjee, Niranjan Reddy, V. Chitambaresh, Rameshwar Singh
Malik, Sr. Advs., Dr. Ritu Bhardwaj, Mohan Kumar, Ms. Neetu Singh, Ms.
Asia Beg, Vivek Narayan Sharma, Mrs. Mahima Bhardwaj Kalucha, Dinesh
Sharma, Ajay Singh, Ms. Laksha Bhavnani, Adhiraj Wadhera, Rohit Sharma,
Devendra Singh, Chetan Garg, Biswajit Prasad, Ajay Vikram Singh, Mrs.
Priyanka Singh, Mrs. Garima Singh, Shubham Singh, Omkar, Pankaj Kumar,
Mrs. B. Sunita Rao, Ranjeet Kumar, Gunmaya S. Mann, S. Popli, Anant
Kumar, Bipin Kumar, Ms. Jaya Kiran, Ms. Jyoti Singh, Uday Praksh, Rajiv
Mehta, Ahanthem Henry, Ahanthem Rohen Singh, Vivek Kumar, Mohen
Singh, Ms. Priyanka, P. V. Dinesh, Ms. Oommen Anna A, Ms. Urvashi
Chauhan, Mrs. Haripriya Padmanabhan, Kuriakose Varghese, V. Shyamohan,
Shrutanjaya Bhardwaj, Ms. Isha Ghai, Akshat Gogna for M/s. Kmnp Law,
Sriram Parakkat, M.S. Vishnu Sankar, Koshy John, Sreenath S, Ms. Athira
G. Nair, Ms. Divya Jyoti Singh, Aditya Santosh for M/s. Lawfic, Lakshmeesh
S. Kamath, Ms. Samriti Ahuja, Mrs. Sakshi Banga, Mrs. Chitra Parande,
Kaustubh Shukla, Ms. Nancy Shamim, C. Govind Venugopal, Prakash Ranjan
Nayak, Ashok Panigrahi, Sanjeev Kumar, Naik H.K., Ajay Amritraj, Vivek
Kumar, Nikilesh Ramachandran, Raghenth Basant, Ms. Liz Mathew, Ms.
Mallika Agarwal, Jitesh Malik, Abhaya Nath Das, Yogendra Kumar Verma,
Satish Kumar, Ms. Shraddha Deshmukh, Nikhil Singhvi, Bilal Ikram, Utkarsh
Kokcha, Rishabh Sancheti, Ms. Padma Priya, Anchit Bhandari, Suyash Jain,
Chirag Kalani, K. Paari Vendhan, Advs. for the Petitioners.
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 679
OTHERS
K.M. Nataraj, ASG, Dama Seshadri Naidu, Vijay Hansaria, Dr. K.P.
Kylasnatha Pillay, Sr. Advs., T. G. Narayanan Nair, Ramesh Babu M.R.,
Ms. Shivali Seshadri Naidu, Ms. Shivali Chaudhary, Pawanshree Agrawal,
Sunil Kumar Jain, Ms. Rashika Swarup, Gaurav Agrawal, P. I. Jose, James
P. Thomas, Ravi Sagar, Nikhil Goel, Ms. Naveen Goel, Kartik Kaushal,
Adhitya Koshy Roy, Ms. Sidhi Gupta, Maibam Nabaghanashyam Singh,
Mahesh Thakur, Shakti K Pattanaik, Ms. Diksha Rai, Ms. Ragini Pandey,
Rameshwar Prasad Goyal, Manish Goswami, C M Angadi, Ms. Deepanwita
Priyanka, Nishe Rajen Shonker, Mrs. Anu K Joy, Abraham C. Mathew, Alim
Anvar, Debojit Borkakati, Prashant Padmanabhan, P. A. Noor Muhamed,
Sunny Markose, Mohamad Shareef K.P., Mrs. Giffara S., A. Nowfal, A.
Shukoor, Shereef Ka, Ms. Rashmi Singhania, Ranjith K. C., Ms. Niveditha
R. Menon, Aditya Verma, Lalit Kumar, Anil Kumar, Ranbir Singh Yadav, Ms.
Anzu. K. Varkey, N.P. Rakeesh Panicker, Ms. Mahesh Sharma, M. Gireesh
Kumar, Ankur S. Kulkarni, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
DR. DHANANJAYA Y CHANDRACHUD, CJI
Table of Contents
A. Background ....................................................................... 3
B. Submissions ....................................................................... 7
C. Analysis .............................................................................. 9
i. The decision of the High Court was ultra vires the
1961 Rules .............................................................................. 9
ii. Legitimate Expectation ...................................................12
a. Doctrine of legitimate expectation under common law..13
b. Doctrine of legitimate expectation under Indian law .....16
c. Substantive Legitimate Expectation ............................... 18
d. Consistency and predictability as aspects of
non-arbitrariness ............................................................. 26
680 SUPREME COURT REPORTS [2023] 11 S.C.R.
D. Application of the doctrine of legitimate expectation........ 29
i. What has the High Court committed itself to? ............... 30
ii. Whether the High Court has acted unlawfully in relation
to its commitment? ......................................................... 31
iii. What should this Court do? ............................................34
E. Conclusions .......................................................................... 35
A. Background
1. On 14 November 2017, a Bench of two Judges of this Court
referred a batch of four petitions, which invoked the jurisdiction of this
Court under Article 32 of the Constitution, to the Constitution Bench
in Sivanandan C T v. High Court of Kerala 1. Eleven petitioners are
before this Court, all of whom are candidates aspiring to be selected as
District Judges in the Higher Judicial Service of the State of Kerala.
2. In the State of Kerala, the Kerala State Higher Judicial Services
Special Rules 19612 came into force on 11 July 1961. These Rules have
been framed under Articles 233 and 309 of the Constitution. The 1961
Rules provide for the constitution of the Higher Judicial Service into
three categories:
(i) Super-time Scale District and Sessions Judge;
(ii) Selection Grade District and Sessions Judge; and
(iii) District and Sessions Judge, including Additional District
Judge.
3. The dispute in the present batch of cases pertains to the third
category noted above. Rule 2(c) provides for the method of appointment
of the third category. Rule 2(c)(iii) stipulates that 25% of the posts in
the category shall be filled by direct recruitment from the Bar “on the
basis of aggregate marks/grade obtained in a competitive examination
and viva-voce conducted by the High Court”.
1 (2018) 1 SCC 239
2 “1961 Rules”
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 681
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
4. By a notifi cation dated 13 December 2012, the High Court
of Kerala prescribed the scheme for the Kerala Higher Judicial Service
Examination. The scheme as notified by the High Court contained the
following stipulations pertaining to the examination:
(i) The examination will comprise of a written examination
consisting of two papers carrying 150 marks each and a viva-
voce carrying 50 marks with a total of 350 marks so assigned;
(ii) While separate minimum marks were not prescribed for each
paper, general category candidates who secure at least 50% in
the aggregate and SC/ST candidates who secure at least 40%
in the aggregate for both the papers together would be qualified
for viva-voce test;
(iii) The viva-voce test would be conducted “in a thorough and
scientific manner” for a period ranging between 25 to 30 minutes
for each candidate;
(iv) There shall be no cut off marks for the viva-voce; and
(v) The merit list would be prepared on the basis of the aggregate
marks obtained both in the written examination and the viva-
voce.
5. On 30 September 2015, a notification was issued by the High Court
of Kerala by which applications were invited from qualified candidates for
appointment as District and Sessions Judges in the Kerala State Higher
Judicial Services by direct recruitment from the Bar. Paragraph 5 of the
notification provides for the mode of selection. Paragraph 5 stipulates that
the selection would be on the basis of a competitive examination consisting
of a written examination and a viva-voce. The total marks assigned for the
written examination were 300 comprising of two papers, each carrying
maximum of 150 marks. General candidates and candidates belonging to
the OBC category who secure 50% and the SC/ST candidates who secure
40% aggregate minimum marks for both the written papers together were to
be declared as qualified for the viva-voce. The maximum marks prescribed
for the viva-voce were fifty. Paragraph 5 stipulates that “the merit list
of successful candidates will be prepared on the basis of the total marks
obtained in the written examination and viva-voce.”
682 SUPREME COURT REPORTS [2023] 11 S.C.R.
6. Following the notification which was issued by the High Court on
30 September 2015, the written test was conducted on 12 and 13 March
2016. On 17 December 2016, the notification regarding candidates who had
qualified in the written test came to be published. Following this, between 16
January and 24 January 2017, the viva-voce for all the qualified candidates
was conducted.
7. On 27 February 2017, after the viva-voce was conducted, the
Administrative Committee of the High Court passed a resolution by which it
decided to apply the same minimum cut-off marks which were prescribed for
the written examination as a qualifying criterion in the viva-voce. In coming
to this conclusion, the Administrative Committee was of the view that
since appointments were being made to the Higher Judicial Service, it was
necessary to select candidates with a requisite personality and knowledge
which could be ensured by prescribing a cut-off for the viva-voce in terms
similar to the cut-off which was prescribed for the written examination.
On 6 March 2017, the Full Court of the High Court of Kerala approved
the resolution of the Administrative Committee. The final merit list of the
successful candidates was also published on the same day.
8. The decision of the Full Court to apply minimum cut-off marks
for the viva voce and the resultant promulgation of the list of successful
candidates led to the institution of petitions before this Court under Article 32
of the Constitution. The candidates who are before this Court are aggrieved
by the fact that as a result of the application of cut off marks in the viva-
voce, they have been ousted from selection though they would rank higher
than many of the candidates who have been selected on the consideration
of the aggregate of marks in the written examination and the viva-voce.
This specific grievance was urged before this Court when notice was issued
particularly in relation to the three respondents, respondents 9, 11 and 12.
9. When the petition was taken up by a two-Judge Bench of this Court
on 14 November 2017, a reference was made to the Constitution Bench,
following an earlier reference made to the larger Bench in Tej Prakash
Pathak v. Rajasthan High Court3. While making a reference to the
Constitution Bench in the earlier decision, the principal issue which has been
3 (2013) 4 SCC 540
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 683
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
addressed is whether it is open in law after a selection process is instituted,
to change the rules of the game midstream. In that context, reliance was
placed on an earlier decision in K Manjusree v. State of Andhra Pradesh.4
The view in K Manjusree (supra) has been doubted on the ground that
the principle which has been laid down in that case would appear to run
contrary to an earlier decision in the State of Haryana v. Subash Chander
Marwaha.5 In the view that we are inclined to take in the present case, it does
not become necessary to rule on the broader constitutional issue on which a
reference has been made in Tej Prakash Pathak (supra). The reason why
we have come to this conclusion would be elaborated shortly hereinafter.
B. Submissions
10. During the course of the hearing, we have heard arguments on
behalf of the petitioners by Mr V Chitambaresh, senior counsel, Mr P V
Dinesh, Ms Haripriya Padmanabhan, Mr Raghen Basant and Mr Kuriakose
Verghese, counsel. Principally, the modalities which have been followed by
the High Court of Kerala for the selection of candidates have been assailed
on four grounds:
(i) In specifying a cut off for the viva-voce, the High Court has acted
in a manner contrary to Rule 2(c)(iii) of the 1961 Rules;
(ii) The scheme which was notified by the High Court on 13
December 2012 had expressly provided that there shall be no
cut off for the purposes of the viva-voce;
(iii) According to the notification, the only criteria for the purpose of
shortlisting candidates would be length of practice rendered by
candidates at the Bar which was to operate in a situation where
the number of candidates was found to be unusually large; and
(iv) The decision of the Full Court to prescribe a cut off for the
viva-voce was notified much after the viva-voce was held, as
a consequence of which, candidates had no notice that such a
requirement would be introduced at the inception of the process.
4 (2008) 3 SCC 512
5 (1974) 3 SCC 220
684 SUPREME COURT REPORTS [2023] 11 S.C.R.
11. Mr Dama Seshadri Naidu, senior counsel has appeared on behalf
of the High Court of Kerala, while Mr K P Kylasnatha Pillay, senior counsel
for respondent No 11 argued in support of the dismissal of the writ petitions
on the basis of the following grounds:
(i) Article 233 of the Constitution vests a discretionary power with
the High Court in matters of selection of judicial officers which
cannot be curtailed by statutory rules;
(ii) The Selection Committee constituted by the High Court is an
expert body best placed to understand the suitability of the
candidates, the needs of the judicial institution, and the larger
public interest;
(iii) The decision of the High Court in specifying minimum cut-off
marks for the viva voce was applied across the board to select
suitable candidates and does not suffer from arbitrariness; and
(iv) Since the viva voce is an essential component to determine the
suitability of candidates, it is within the discretion of the High
Court to determine the weightage to be assigned to it.
C. Analysis
i. The decision of the High Court was contrary to the 1961 Rules
12. The 1961 Rules specify that 25% of the aggregate posts which are
to be filled in by direct recruitment from the Bar would comprise of the list
of candidates selected on the basis of the aggregate marks obtained in the
written examination and the viva-voce. These rules, as already noted earlier,
have been framed in exercise of the power conferred by Articles 233 and
309 of the Constitution. After the statutory rules were notified on 11 July
1961, the High Court of Kerala published the scheme of the examination for
recruitment of members of the Bar to the Kerala Higher Judicial Service on
13 December 2012. The scheme so notified specifically provides that there
shall be no cut off marks for the viva voce. The notification which was issued
by the High Court on 30 September 2015 for the conduct of the ensuing
examination provided that the mode of selection would consist of two written
papers, each carrying 150 marks and that candidates from the general and
OBC categories who secured a minimum of 50% marks (relaxed to 40%
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 685
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
for SC/ST candidates) would qualify for the viva-voce. The notification
spells out that the aggregate of the marks in the written examination and
the viva-voce would form the basis of drawing the merit list.
13. In the above backdrop, it is evident that when the process of
selection commenced, all the candidates were put on a 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 (iii) there was no cut off applicable in
respect of the marks to be obtained in the viva-voce while drawing up the
merit list in the aggregate.
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.
15. For the above reasons, we have come to the conclusion that the
broader constitutional issue which has been referred in Tej Prakash Pathak
(supra) would not merit decision on the facts of the present case. Clearly, the
decision which was taken by the High Court was ultra vires Rule 2(c)(iii)
as it stands. As a matter of fact, during the course of the hearing we have
been apprised of the fact that the Rules have been subsequently amended in
2017 so as to prescribe a cut off of 35% marks in the viva-voce examination
which however was not the prevailing legal position when the present
process of selection was initiated on 30 September 2015. The Administrative
686 SUPREME COURT REPORTS [2023] 11 S.C.R.
Committee of the High Court decided to impose a cut off for the viva-voce
examination actuated by the bona fide reason of ensuring that candidates
with requisite personality assume judicial office. However laudable that
approach of the Administrative Committee may have been, such a change
would be required to be brought in by a substantive amendment to the Rules
which came in much later as noticed above. This is not a case where the
rules or the scheme of the High Court were silent. Where the statutory rules
are silent, they can be supplemented in a manner consistent with the object
and spirit of the Rules by an administrative order.
16. In the present case, the statutory rules expressly provided that the
select list would be drawn up on the basis of the aggregate of marks obtained
in the written examination and the viva-voce. This was further elaborated in
the scheme of examination which prescribed that there would be no cut off
marks for the viva-voce. This position is also reflected in the notification of
the High Court dated 30 September 2015. In this backdrop, we have come
to the conclusion that the decision of the High Court suffered from its being
ultra vires the 1961 Rules besides being manifestly arbitrary.
ii. Legitimate Expectation
17. Another important aspect that arises for our consideration in
these batch of petitions is whether the High Court’s decision frustrates the
legitimate expectation of the petitioners. Article 233 of the Constitution
provides that the appointment of persons to be posted as district judges in
any state shall be made by the Governor of the State in consultation with the
High Court exercising jurisdiction in relation to such state. Further, Article
235 vests with the High Court the control over district courts including the
posting and promotion of district judges. The maintenance of efficiency of
judicial administration is entirely within the control and jurisdiction of the
High Court.6 The Governor, in consultation with the High Court, prescribes
rules laying down the method of appointment and the necessary eligibility
criteria for the selection of suitable candidates for the post of district judges.
According to the 1961 Rules, the High Court of Kerala was designated as
the appointing authority and tasked with the responsibility of conducting
the written examination and the viva voce. The actions of the High Court,
6 State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 687
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
in pursuance of its public duty, would give rise to the legitimate expectation
that the process of selection of candidates will be fair and non-arbitrary.
a. Doctrine of legitimate expectation under common law
18. The basis of the doctrine of legitimate expectation in public law is
founded on the principles of fairness and non-arbitrariness in government
dealings with individuals. It recognizes that a public authority’s promise
or past conduct will give rise to a legitimate expectation. The doctrine is
premised on the notion that public authorities, while performing their public
duties, ought to honor their promises or past practices. The legitimacy of
an expectation can be inferred if it is rooted in law, custom, or established
procedure.7
19. The origin of the doctrine in the modern sense could be
authoritatively traced to the opinion of Lord Denning in Schmidt v.
Secretary of State for Home Affairs.8 In that case, the Home Secretary
granted a limited permit to the petitioners to enter the United Kingdom for
the purposes of study at the College of Scientology. After the expiration of the
time period, the petitioners applied to the Home Secretary for an extension of
their permits. The Home Secretary refused to grant the extension. Although
the Court rejected the claim brought by the petitioners, Lord Denning
observed that the petitioner would have a legitimate expectation of being
allowed to stay for the permitted time. In such situation, it was observed
that the petitioner ought to have been given an opportunity of making a
representation if his permit was revoked before the expiration of the time
period. Lord Denning’s conception of the doctrine of legitimate expectation
was a procedural protection – a legitimate expectation could not be denied
without providing an opportunity of hearing to the affected person.
20. In O’Reilly v. Mackman,9 the House of Lords was called upon to
decide the validity of the order passed by the Board of Visitors to impose
a penalty against the plaintiffs in breach of the prison rules and principles
of natural justice. Lord Diplock observed that the doctrine of legitimate
expectation gave the affected party a right to challenge the legality of the
7 Salemi v. Mackellar, [1977] HCA 26
8 [1969] 2 WLR 337
9 [1983] 2 AC 237
688 SUPREME COURT REPORTS [2023] 11 S.C.R.
adverse actions on the ground that the authority had acted beyond the
powers conferred upon it by the legislation including the failure to observe
the principles of natural justice. Lord Diplock reiterated the doctrine of
legitimate expectation in terms of the duty of public authorities to act fairly
in their dealings with individuals.
21. The doctrine of legitimate expectation received further impetus
in the decision of the Privy Council in Attorney General of Hong
Kong v. Ng Yuen Shiu. 10 In that case, a senior immigration officer
announced that each illegal entrant from China would be interviewed
before passing deportation orders against them. The respondent, an
illegal entrant from China, was detained and removal orders were passed
against him without any opportunity of hearing. Therefore, the issue was
whether the respondent had a legitimate expectation of the grant of a
hearing before repatriation by the immigration officer. It was held that
a public authority is bound by its undertakings. Lord Fraser explained
the contours of legitimate expectations in the following terms:
“The expectations may be based upon some statement or
undertaking by, or on behalf of, the public authority which has
the duty of making the decision, if the authority has, through its
officers, acted in a way that would make it unfair or inconsistent
with good administration for him to be denied such an inquiry.”
According to Lord Fraser’s opinion, the primary justification
for the doctrine of legitimate expectation is that a public authority
should implement its promise in the interests of fairness and good
administration.
22. The doctrine of legitimate expectation was crystallized in
common law jurisprudence by Lord Diplock in the locus classicus,
Council of Civil Service Unions v. Minister for the Civil Service. 11
Lord Diplock held that courts can exercise the power of judicial review
of administrative decisions in situations where such decision deprives
a person of some benefit or advantage which:
10 [1983] 2 WLR 735
11 [1985] AC 374
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 689
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
(i) they had in the past been permitted by the decision-maker to
enjoy and which they can legitimately expect to be permitted to
continue until there has been communicated to them some rational
grounds for withdrawing it on which they have been given an
opportunity to comment; or
(ii) they have received assurance from the decision-maker that the
advantage or benefit will not be withdrawn without giving them
an opportunity of advancing reasons for contending that the
advantage or benefit should not be withdrawn.
23. The doctrine of legitimate expectation emerged as a common law
doctrine to guarantee procedural fairness and propriety in administrative
actions. Legitimate expectation was developed by the courts to require a
degree of procedural fairness by public authorities in their dealings with
individuals. Denial of an assured benefit or advantage was accepted as a
ground to challenge the decision of a public authority.
b. Doctrine of legitimate expectation under Indian law
24. By the 1990s, the Indian courts incorporated the doctrine of
legitimate expectation in the context of procedural fairness and non-
arbitrariness under Article 14 of the Constitution. In Food Corporation of
India v. Kamdhenu Cattle Feed Industries12, this Court held that public
authorities have a duty to use their powers for the purposes of public good.
This duty raises a legitimate expectation on the part of the citizens to be
treated in a fair and non-arbitrary manner in their interactions with the
state and its instrumentalities. This Court held that a decision taken by an
executive authority without considering the legitimate expectation of an
affected person may amount to an abuse of power:
“7. […] To satisfy this requirement of non-arbitrariness in a State
action, it is, therefore, necessary to consider and give due weight to
the reasonable or legitimate expectations of the persons likely to be
affected by the decision or else that unfairness in the exercise of the
power may amount to an abuse or excess of power apart from affecting
the bona fides of the decision in a given case. The decision so made
12 (1993) 1 SCC 71
690 SUPREME COURT REPORTS [2023] 11 S.C.R.
would be exposed to challenge on the ground of arbitrariness. Rule
of law does not completely eliminate discretion in the exercise of
power, as it is unrealistic, but provides for control of its exercise by
judicial review.”
The court held that whether the expectation of a claimant is legitimate
or not is a question of fact which has to be decided after weighing the
claimant’s expectation against the larger public interest. Thus, while dealing
with the claims of legitimate expectations, the Court has to necessarily
balance the legitimate expectation of a claimant against the larger public
interest.
25. In Union of India v. Hindustan Development Corporation,13 this
Court clarified the contours of the doctrine of legitimate expectation in the
following terms: (i) legitimate expectation arises based on a representation
or past conduct of a public authority; (ii) legitimacy of an expectation can
be inferred only if it is founded on the sanction of law or custom or an
established procedure followed in regular or natural sequence; (iii) legitimate
expectation provides locus standi to a claimant for judicial review; (iv) the
doctrine is mostly confined to a right of a fair hearing before a decision and
does not give scope to claim relief straightaway; (v) the public authority
should justify the denial of a person’s legitimate expectation by resorting
to overriding public interest; and (vi) the Courts cannot interfere with the
decision of an authority taken by way of policy or public interest unless
such decision amounts to an abuse of power.
26. In Hindustan Development Corporation (supra), this Court
cautioned against the use of the doctrine of legitimate expectation to safeguard
a substantive right. Yet, in a series of subsequent decisions, this Court
accepted that the doctrine of legitimate expectations has become a source of
both procedural and substantive rights.14 In Punjab Communication Ltd
v. Union of India15, this Court explained the difference between procedural
and substantive legitimate expectation in the following terms:
13 (1993) 3 SCC 499
14 M P Oil Extraction v. State of M P, (1997) 7 SCC 592; National Building Construction
Corporation v. S Raghunathan (1998) 7 SCC 66
15 (1999) 4 SCC 727
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 691
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
“The procedural part of it relates to a representation that a hearing or
other appropriate procedure will be afforded before the decision is
made. The substantive part of the principle is that if a representation
is made that a benefit of a substantive nature will be granted or if the
person is already in receipt of the benefit that it will be continued and
not be substantially varied, then the same could be enforced.”
A claim based on the doctrine of procedural legitimate expectation
arises where a claimant expects the public authority to follow a particular
procedure before taking a decision. This is in contradistinction to the
doctrine of substantive legitimate expectation where a claimant expects
conferral of a substantive benefit based on the existing promise or practice
of the public authority. The doctrine of substantive legitimate expectation
has now been accepted as an integral part of both the common law as well
as Indian jurisprudence.
c. Substantive Legitimate Expectation
27. In R v. North and East Devon Health Authority, ex parte
Coughlan16, the Court of Appeal laid down the test of abuse of power
to determine whether a public authority can resile from a prima facie
legitimate expectation. It was held that frustration of a substantive legitimate
expectation by public authorities would be unfair and amount to abuse of
power. Importantly, it was held that abuse of power constitutes a ground for
the courts to exercise judicial review of executive actions.
28. In Nadarajah v. Secretary of State for the Home Department,17
the Court of Appeal added another facet to the doctrine of substantive
legitimate expectation by grounding it in the principles of good
administration. Importantly, the court identified that consistency and probity
are tenets of a good administration. Laws LJ explained the principles
underlying the doctrine of legitimate expectation in the following terms:
“68. The search for principle surely starts with the theme that is current
through the legitimate expectation cases. It may be expressed thus.
Where a public authority has issued a promise or adopted a practice
16 [2001] QB 213
17 [2005] EWCA Civ 1363
692 SUPREME COURT REPORTS [2023] 11 S.C.R.
which represents how it proposes to act in a given area, the law will
require the promise or practice to be honoured unless there is good
reason not to do so. What is the principle behind this proposition? It
is not far to seek. It is said to be grounded in fairness, and no doubt
in general terms that is so. I would prefer to express it rather more
broadly as a requirement of good administration, by which public
bodies ought to deal straightforwardly and consistently with the
public.”
(emphasis supplied)
Moreover, Laws LJ held that a public authority can resile from its
promise or future conduct if its decision: (i) is in pursuance of a legal duty;
or (ii) is a proportionate response having regard to the legitimate aim pursued
by the public body in the public interest.
29. The decision of the Court of Appeal in Coughlan (supra) marked
a gradual shift in the formulation of the doctrine of legitimate expectation
in the common law. In Schmidt (supra) and Council of Civil Service
Unions (supra), the application of the doctrine was justified on the grounds
of fairness in decision-making by public authorities. However, the gradual
shift towards a more nuanced aspect of the doctrine began when the
English courts started requiring public authorities to honor their promises
or practices as a requirement of good administration. Good administration
was characterized by consistent, regular, and straight-forward conduct
on behalf of the public authorities. Further, the concept of unfairness in
decision-making as an abuse of power was firmly established by the court
in Coughlan (supra). Thus, the requirement of good administration and
preventing an abuse of power came to underpin the administrative actions
of public authorities.18
30. The above developments in the common law also had an influence
on the Indian law. In Ram Pravesh Singh v. State of Bihar,19 this Court
explained the concept of legitimate expectation as a reasonable, logical, and
valid expectation of certain benefit, relief, or remedy:
18 R v. Department of Education and Employment, [2000] 1 WLR 1115
19 (2006) 8 SCC 381
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 693
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
“15. What is legitimate expectation? Obviously, it is not a legal right.
It is an expectation of a benefit, relief or remedy, that may ordinarily
flow from a promise or established practice. The term “established
practice” refers to a regular, consistent, predictable and certain
conduct, process or activity of the decision-making authority.
The expectation should be legitimate, that is, reasonable, logical
and valid. Any expectation which is based on sporadic or casual or
random acts, or which is unreasonable, illogical or invalid cannot be
a legitimate expectation.”
(emphasis supplied)
In Ram Pravesh Singh (supra), this Court noted that the efficacy of
the doctrine of legitimate expectation is weak as the claimant is only entitled
to the following two reliefs: (i) an opportunity to show cause before the
expectation is negatived; and (ii) an explanation as to the cause for denial.
The Court further clarified that a claim based on legitimate expectation can
be negatived on factors such as public interest, change in policy, conduct of
the claimant, or any other valid or bona fide reason provided by the public
authority.
31. While dealing with the doctrine of legitimate expectation, another
important aspect that the courts have had to grapple with is determining
the “legitimacy” of the expectation. The court can infer the legitimacy of
an expectation only if it is founded on the sanction of law.20 In Secretary,
State of Karnataka v. Umadevi,21 a Constitution Bench of this Court held
that a contractual or casual employee cannot claim a legitimate expectation
to be regularized in service since such appointments could only be made
after following proper procedures for selection including consultation with
the Public Service Commission in certain situations. The legitimacy of
expectation is a question of fact and has to be determined after weighing
the claimant’s expectation against the larger public interest.
32. This Court has consistently held that a legitimate expectation must
always yield to the larger public interest. In Sethi Auto Service Station v.
20 Bannari Amman Sugars Ltd v. CTO, (2005) 1 SCC 625
21 (2006) 4 SCC 1
694 SUPREME COURT REPORTS [2023] 11 S.C.R.
DDA,22 this Court clarified that legitimate expectation will not be applicable
where the decision of the public authority is based on a public policy or
is in the public interest, unless the action amounts to an abuse of power.
The doctrine of legitimate expectation cannot be invoked to fetter valid
exercise of administrative discretion.23 In P Suseela v. University Grants
Commission,24 the claimants challenged the UGC Regulations which made
it mandatory for candidates seeking to be appointed to the post of lecturer or
assistant professor to qualify at the NET examination. The Court held that
the legitimate expectation of the claimants must yield to the larger public
interest – having highly qualified assistant professors and lecturers to teach
in educational institutions governed by the UGC.
33. In Kerala State Beverages (M&M) Corp Ltd. v. P P Suresh,25
the state government decided to ban arrack, as a result of which thousands
of arrack workers lost their livelihoods. In 2002, the government issued an
order reserving twenty-five percent of all the vacancies to the post of daily
wage workers in the petitioner corporation for the arrack workers who lost
livelihood due to the arrack ban. In 2004, the government changed the
criteria by providing that the reservation policy would only be earmarked for
the dependent sons of the arrack workers. The state government submitted
before this Court that it was practically difficult to provide employment to
the arrack workers. The Court accepted that the workers had a legitimate
expectation to be considered for the appointment as daily wage workers.
However, it gave credence to the overriding public interest cited by the state
government to resile from the promise made to the arrack workers. After
weighing the expectation of the workers against the public interest, this
Court held that the expectation of the workers was not legitimate.
34. In State of Jharkhand v. Brahmputra Metallics26, the issue
before this Court was whether the respondent was entitled to claim a rebate
or deduction on electricity duty under the Industrial Policy, 2012 for a
period of five years from the commencement of production. Although the
22 (2009) 1 SCC 180
23 Monnet Ispat & Energy Ltd v. Union of India, (2012) 11 SCC 1
24 (2015) 8 SCC 129
25 (2019) 9 SCC 710
26 2020 SCC OnLine SC 968
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 695
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
policy was announced in 2012, the exemption notification was issued in
2015 with prospective effect. While dealing with the issue of whether the
state government frustrated the legitimate expectation of the respondent,
one of us (D Y Chandrachud, J) observed that the representations made by
the public authorities should be held to scrupulous standards because of the
trust reposed by the citizens in the state:
“41. […] Representations by public authorities need to be held to
scrupulous standards, since citizens continue to live their lives based
on the trust they repose in the State. In the commercial world also,
certainty and consistency are essential to planning the affairs of
business. When public authorities fail to adhere to their representations
without providing an adequate reason to the citizens for this failure, it
violates the trust reposed by citizens in the State. The generation of a
business friendly climate for investment and trade is conditioned by
the faith which can be reposed in government to fulfil the expectations
which it generates.”
35. In Brahmputra Metallics (supra), this Court held that the state
government made a solemn representation under its Industrial Policy, 2012
to provide exemption from payment of electricity duty to the claimants.
However, the government failed to provide any justification for issuing the
exemption notice after a delay of three years in 2015. This Court observed
that the state is bound to act fairly and transparently while performing its
public duties, and any deprivation of entitlement of private citizens and
private business must be proportional to a requirement grounded in public
interest:
“53. […] The state must discard the colonial notion that it is a
sovereign handing out doles at its will. Its policies give rise to
legitimate expectations that the state will act according to what it
puts forth in the public realm. In all its actions, the State is bound to
act fairly, in a transparent manner. This is an elementary requirement
of the guarantee against arbitrary state action which Article 14 of
the Constitution adopts. A deprivation of the entitlement of private
citizens and private business must be proportional to a requirement
grounded in public interest.”
696 SUPREME COURT REPORTS [2023] 11 S.C.R.
36. The doctrine of legitimate expectation does not impede or hinder
the power of the public authorities to lay down a policy or withdraw it.
The public authority has the discretion to exercise the full range of choices
available within its executive power. The public authority often has to take
into consideration diverse factors, concerns, and interests before arriving at
a particular policy decision. The courts are generally cautious in interfering
with a bona fide decision of public authorities which denies a legitimate
expectation provided such a decision is taken in the larger public interest.
Thus, public interest serves as a limitation on the application of the doctrine
of legitimate expectation. Courts have to determine whether the public
interest is compelling and sufficient to outweigh the legitimate expectation
of the claimant. While performing a balancing exercise, courts have to often
grapple with the issues of burden and standard of proof required to dislodge
the claim of legitimate expectation.
37. In Paponette v. Attorney General of Trinidad and Tobago,27 the
Privy Council held that a claimant only has to prove the legitimacy of their
expectation. In this regard, the claimant must establish that the expectation
is based on an existing promise or practice. Once the claimant establishes
their legitimate expectation, the onus shifts to the authority to justify the
frustration of the expectation by identifying any overriding public interest.
This Court has been applying similar burden requirements in cases of
legitimate expectation.28
38. The principle of fairness in action requires that public authorities
be held accountable for their representations, since the state has a profound
impact on the lives of citizens. Good administration requires public
authorities to act in a predicable manner and honor the promises made or
practices established unless there is a good reason not to do so. In Nadarajah
(supra), Laws LJ held that the public authority should objectively justify that
there is an overriding public interest in denying a legitimate expectation. We
are of the opinion that for a public authority to frustrate a claim of legitimate
expectation, it must objectively demonstrate by placing relevant material
27 [2012] 1 AC 1
28 Union of India v. Hindustan Development Corp, (1993) 3 SCC 499; State of Jharkhand
v. Brahmputra Metallics, 2020 SCC OnLine SC 968; State of Bihar v. Shyama Nandan
Mishra, 2022 SCC OnLine SC 554
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 697
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
before the court that its decision was in the public interest. This standard is
consistent with the principles of good administration which require that state
actions must be held to scrupulous standards to prevent misuse of public
power and ensure fairness to citizens.
d. Consistency and predictability as aspects of non-arbitrariness
39. Another significant development in the jurisprudence pertaining
to the doctrine of legitimate expectation is the emphasis on predictability
and consistency in decision-making as a facet of non-arbitrariness. In
Ram Pravesh Singh (supra), it was held that the doctrine of legitimate
expectation applies to a regular, consistent, predictable, and certain
conduct. Similarly, in NOIDA Entrepreneurs Association v. NOIDA,29
this Court observed that an executive decision without any basis in a
principle or a rule is unpredictable. It was held that such a decision-
making process contradicts the principle of legitimate expectation and is
antithetical to the rule of law.
40. In a recent decision in State of Bihar v. Shyama Nandan
Mishra30, this Court was called upon to determine the validity of the
decision of the state government to treat lecturers on par with secondary
school teachers of nationalized schools. A two-Judge Bench of this
Court held that the decision of the state government was ultra vires the
Bihar Non-Government Secondary Schools (Taken over of Control and
Management) Act, 1981. Moreover, the Court tested the validity of the
government’s decision on the anvil of the doctrine of substantive legitimate
expectation. The Court held that the government’s decision led to the
denial of substantive legitimate expectations of the lecturers because:
(i) the government by artificially grouping the lecturers with teachers
of nationalized schools belied the expectation of the lecturers to obtain
promotion and attain higher positions in the department depending upon
inter-se seniority; and (ii) the government’s decision was contrary to the
previous representation, lacked any compelling public interest, and was
therefore unfair and amounted to an abuse of power.
29 (2011) 6 SCC 508
30 2022 SCC OnLine SC 554
698 SUPREME COURT REPORTS [2023] 11 S.C.R.
41. In Shyama Nandan Mishra (supra), the Court also highlighted
that regularity, predictability, certainty, and fairness are important facets
of governance:
“36. Taking a cue from above, where the substantive legitimate
expectation is not ultra vires the power of the authority and the court
is in a position to protect it, the State cannot be allowed to change
course and belie the legitimate expectation of the respondents. As is
well known, Regularity, Predictability, Certainty and Fairness
are necessary concomitants of Government’s action and the Bihar
government in our opinion, failed to keep to their commitment by
the impugned decision, which we find was rightly interdicted by
the High Court.”
(emphasis supplied)
42. In a constitutional system rooted in the rule of law, the discretion
available with public authorities is confined within clearly defined limits.
The primary principle underpinning the concept of rule of law is consistency
and predictability in decision-making. A decision of a public authority taken
without any basis in principle or rule is unpredictable and is, therefore,
arbitrary and antithetical to the rule of law.31 The rule of law promotes
fairness by stabilizing the expectations of citizens from public authorities.
This was also considered in a recent decision of this Court in SEBI v. Sunil
Krishna Khaitan,32 where it was observed that regularity and predictability
are hall-marks of good regulation and governance.33 This Court held that
certainty and consistency are important facets of fairness in action and
non-arbitrariness:
“59. […] Any good regulatory system must promote and adhere to
principle of certainty and consistency, providing assurance to the
individual as to the consequence of transactions forming part of
his daily affairs. […] This does not mean that the regulator/authorities
cannot deviate from the past practice, albeit any such deviation or
change must be predicated on greater public interest or harm. This
31 S G Jaisinghani v. Union of India, 1967 SCC OnLine SC 6
32 (2023) 2 SCC 643
33 (2023) 2 SCC 643
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 699
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
is the mandate of Article 14 of the Constitution of India which
requires fairness in action by the State, and non-arbitrariness
in essence and substance. Therefore, to examine the question of
inconsistency, the analysis is to ascertain the need and functional value
of the change, as consistency is a matter of operational effectiveness.”
(emphasis supplied)
43. The underlying basis for the application of the doctrine of legitimate
expectation has expanded and evolved to include the principles of good
administration. Since citizens repose their trust in the state, the actions and
policies of the state give rise to legitimate expectations that the state will
adhere to its assurance or past practice by acting in a consistent, transparent,
and predictable manner. The principles of good administration require that
the decisions of public authorities must withstand the test of consistency,
transparency, and predictability to avoid being regarded as arbitrary and
therefore violative of Article 14.
44. From the above discussion, it is evident that the doctrine of
substantive legitimate expectation is entrenched in Indian administrative law
subject to the limitations on its applicability in given factual situations. The
development of Indian jurisprudence is keeping in line with the developments
in the common law. The doctrine of substantive legitimate expectation can
be successfully invoked by individuals to claim substantive benefits or
entitlements based on an existing promise or practice of a public authority.
However, it is important to clarify that the doctrine of legitimate expectation
cannot serve as an independent basis for judicial review of decisions taken
by public authorities. Such a limitation is now well recognized in Indian
jurisprudence considering the fact that a legitimate expectation is not a legal
right.34 It is merely an expectation to avail a benefit or relief based on an
existing promise or practice. Although the decision by a public authority
to deny legitimate expectation may be termed as arbitrary, unfair, or abuse
of power, the validity of the decision itself can only be questioned on
34 Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499; Bannari
Amman Sugars Ltd v. CTO, (2005) 1 SCC 625; Monnet Ispat and Energy Ltd v. Union
of India, (2012) 11 SCC 1; Union of India v. Lt. Col. P K Choudhary (2016) 4 SCC
236; State of Jharkhand v. Brahmputra Metallics, 2020 SCC OnLine SC 968
700 SUPREME COURT REPORTS [2023] 11 S.C.R.
established principles of equality and non-arbitrariness under Article 14.
In a nutshell, 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
the violation of Article 14.
D. Application of the doctrine of legitimate expectation
45. In order to apply the above-mentioned principles in the present case,
we consider it appropriate to formulate the following questions: (i) what
has the High Court, either by promise or practice, committed itself to; (ii)
whether the High Court has acted unlawfully in relation to its commitment;
and (iii) what should this Court allow.35
i. What has the High Court committed itself to?
46. Rule 2(c)(iii) of the 1961 Rules provided at the material time that
25% of the posts of District and Sessions Judges should be filled by direct
recruitment from the Bar on the basis of aggregate marks/grade obtained
in the written examination and the viva-voce conducted by the High Court.
The scheme of examination specifically stipulates that there shall be no cut
off marks for the viva voce. Further, the notification dated 30 September
2015 also stipulates that the merit list of successful candidates would be
prepared on the basis of the total marks obtained in the written examination
and the viva voce.
47. The statutory rule coupled with the scheme of examination and the
2015 examination notification would have generated an expectation in the
petitioners that the merit list of selected candidates will be drawn on the basis
of the aggregate of total marks received in the written examination and the viva
voce. Moreover, the petitioners would have expected no minimum cut-off for the
viva voce in view of the express stipulation in the scheme of examination. Both
the above expectations of the petitioners are legitimate as they are based on the
sanction of statutory rules, scheme of examination, and the 2015 examination
notification issued by the High Court. Thus, the High Court lawfully committed
itself to preparing a merit list of successful candidates on the basis of the total
marks obtained in the written examination and the viva voce.
35 See Regina (Bibi) v. Newham London Borough Council, [2002] 1 WLR 237.
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 701
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
ii. Whether the High Court has acted unlawfully in relation to its
commitment?
48. The Administrative Committee of the High Court apprehended
that a candidate who performed well in the written examination, even
though they fared badly in the viva voce, would get selected to the post of
District and Sessions Judge. The Administrative Committee observed that
recruitment of such candidates would be a disservice to the public at large
because they possessed only “bookish” knowledge and lacked practical
wisdom. To avoid such a situation, the Administrative Committee of the High
Court decided to apply a minimum cut-off to the viva voce examination.
The decision of the Administrative Committee was approved by the Full
Bench of the High Court.
49. The Constitution vests the High Courts with the authority to select
judicial officers in their jurisdictions. The High Court, being a constitutional
and public authority, has to bear in the mind the principles of good
administration while performing its administrative duties. The principles of
good administration require that the public authorities should act in a fair,
consistent, and predictable manner.
50. The High Court submitted that frustration of the petitioner’s
substantive legitimate expectation was in larger public interest – selecting
suitable candidates with practical wisdom for the post of District Judges.
Indeed, it is in the public interest that we have suitable candidates serving in
the Indian judiciary. However, the criteria for selecting suitable candidates
are laid down in the statutory rules. As noted above, the High Court did
amend the 1961 Rules in 2017 to introduce a minimum cut-off mark for the
viva voce. The amended Rule 2(c) is extracted below:
“2. Method of appointment – (1) Appointment to the service shall be
made as follows:
[…]
(c) Twenty five percent of the posts in the service shall be filled up by
direct recruitment from the members of the Bar. The recruitment shall
be on the basis of a competitive examination consisting of a written
examination and a viva voce. […] Maximum marks for viva voce shall
be 50. The General and Other Backward Classes candidates shall
702 SUPREME COURT REPORTS [2023] 11 S.C.R.
secure a minimum of 40% marks and Scheduled Caste/Scheduled
Tribe candidate shall secure a minimum of 35% marks for passing
the viva voce. The merit list of the selected candidates shall be prepared
on the basis of the aggregate marks secured by the candidate in the
written examination and viva voce.”
(emphasis supplied)
51. Under the unamended 1961 Rules, the High Court was expected to
draw up the merit list of selected candidates based on the aggregate marks
secured by the candidates in the written examination and the viva voce,
without any requirement of a minimum cut-off for the viva voce. Thus,
the decision of the Administrative Committee to depart from the expected
course of preparing the merit list of the selected candidates is contrary to the
unamended 1961 Rules. It is also important to highlight that the requirement
of a minimum cut-off for the viva voce was introduced after the viva voce
was conducted. It is manifest that the petitioners had no notice that such a
requirement would be introduced for the viva voce examination. We are of
the opinion that the decision of High Court is unfair to the petitioners and
amounts to an arbitrary exercise of power.
52. The High Court’s decision also fails to satisfy the test of consistency
and predictability as it contravenes the established practice. The High Court
did not impose the requirement of a minimum cut-off for the viva voce for
the selections to the post of District and Sessions Judges for 2013 and 2014.
Although the High Court’s justification, when analyzed on its own terms, is
compelling, it is not grounded in legality. The High Court’s decision to apply
a minimum cut-off for the viva voce frustrated the substantive legitimate
expectation of the petitioners. Since the decision of the High Court is
legally untenable and fails on the touchstone of fairness, consistency, and
predictability, we hold that such a course of action is arbitrary and violative
of Article 14.
iii. What should this Court do?
53. The question which now arises before the Court is in regard to the
relief which can be granted to the petitioners. The final list of successful
candidates was issued on 6 March 2017. The candidates who have been
selected have been working as District and Sessions Judges for about six
SIVANANDAN C T AND OTHERS v. HIGH COURT OF KERALA AND 703
OTHERS [DR. DHANANJAYA Y CHANDRACHUD, CJI]
years. In the meantime, all the petitioners who are before the Court have
not functioned in judicial office. At this lapse of time, it may be difficult
to direct either the unseating of the candidates who have performed their
duties. Unseating them at this stage would be contrary to public interest since
they have gained experience as judicial officers in the service of the State
of Kerala. While the grievance of the petitioners is that if the aggregate of
marks in the written examination and viva-voce were taken into account,
they would rank higher than three candidates who are respondents to these
proceedings, equally, we cannot lose sight of the fact that all the selected
candidates are otherwise qualified for judicial office and have been working
over a length of time. Unseating them would, besides being harsh, result
in a situation where the higher judiciary would lose the services of duly
qualified candidates who have gained experience over the last six years in
the post of District Judge.
54. For the above reasons, we have come to the conclusion that it
would not be possible to direct the induction of the petitioners into the
Higher Judicial Service at the present stage. Many of the petitioners
would have since joined the Bar and would be in active practice. It needs
to be clarified that their having failed to gain selection to the Higher
Judicial Service in the process which was initiated on 30 September
2015, is not a reflection either on their merits or ability and shall not
come in the way of their being considered for any other office, judicial
or otherwise, in the future.
E. Conclusions
55. The following are our conclusions in view of the above discussions:
(i) The principles of good administration require that the decisions
of public authorities must withstand the test of consistency,
transparency, and predictability to avoid being termed as arbitrary
and violative of Article 14;
(ii) An individual who claims a benefit or entitlement based on the
doctrine of substantive legitimate expectation has to establish the
following: (i) the legitimacy of the expectation; and that (ii) the
denial of the legitimate expectation led to a violation of Article
14;
704 SUPREME COURT REPORTS [2023] 11 S.C.R.
(iii) A public authority must objectively demonstrate by placing
relevant material before the court that its decision was in the
public interest to frustrate a claim of legitimate expectation;
(iv) The decision of the High Court of Kerala to apply a minimum
cut-off to the viva voce examination is contrary to Rule 2(c)(iii)
of the 1961 Rules.
(v) The High Court’s decision to apply the minimum cut-off marks
for the viva voce frustrates the substantive legitimate expectation
of the petitioners. The decision is arbitrary and violative of Article
14.
(vi) In terms of relief, we hold that it would be contrary to the
public interest to direct the induction of the petitioners into the
Higher Judicial Service after the lapse of more than six years.
Candidates who have been selected nearly six years ago cannot
be unseated. They were all qualified and have been serving the
district judiciary of the state. Unseating them at this stage would
be contrary to public interest. To induct the petitioners would be
to bring in new candidates in preference to those who are holding
judicial office for a length of time. To deprive the state and its
citizens of the benefit of these experienced judicial officers at a
senior position would not be in public interest.
56. In the view which we have taken in the above terms, we have
not considered it necessary to answer the broader question which has been
referred to the Constitution Bench. Besides, the question has been squarely
raised in certain other cases which form a part of the present batch of cases
in which arguments are being heard by the Constitution Bench.
57. The Petitions are accordingly disposed of in the above terms.
58. Pending applications, if any, stand disposed of.
Headnotes prepared by: Petitions disposed of.
Ankit Gyan
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