Supreme Court rules Kerala High Court process of selecting District judges in 2017 was illegal but refrains from unseating candidates

The Supreme Court on Wednesday ruled that the selection process adopted by the Kerala High Court for recruitment of District Judges in the year 2017 suffered from several infirmities and was in violation of the Kerala High Judicial Services Rules of 1961. .A constitution bench of Chief Justice of India DY Chandrachud and Justices Hrishikesh Roy, PS Narasimha, Pankaj Mithal and Manoj Misra, however, did not unseat the candidates selected in 2017 opining that doing so would be harsh to them and would also deprive the judiciary of experienced judges.The Court was hearing a challenge by 11 petitioners who were candidates for the posts of District Judges. Their grievance was though the 1961 rules prescribed that merit list for direct recruitment from the bar would based on the aggregate of written exam and viva voce, the High Court on administrative side formulated a separate cut off for the viva voce.This was neither provided in the rules nor in the notification of 2015 calling for the applications. .The Rules provided that aggregate of the written test and viva voce would be taken into consideration for appointment. The exam scheme also provided that no cut-off mark would be stipulated for viva voce . The only power given to short list the candidates was on the basis of length of service in the bar. However, after the vive voce was held, the Administrative Committee pruned the list by stipulating a minimum mark for viva voce. .The Supreme Court held that the procedure adopted by the High Court was illegal and ultravires the Rules. "The decision to prescribe a cut off for viva was after the viva was conducted and the process adopted by the HC suffers from several infirmities. It was contrary to Rule 2C(3) which says merit list would be aggregate of written and viva and scheme notified by HC in Dec 2012 specified that there would be no cut off for the viva. The notification of the HC dated Sep 30 2015 clarified that shortlisting of candidates would be on the basis of the length of experience at bar should candidates be large in number and that decision to prescribe cut off for viva was much after viva was conducted in Jan 2017. For the above reasons we conclude that broader constitutional issue would not merit decision in the facts of present case and decision of Kerala HC was ultra vires to Rule 2C(3). Later the rules were amended but that is not the case here," the Court held. .Pertinently the Constitution bench stated that change should have been by amendment to the rules which came much later. "This is not the case where rules of HC was silent. It is well settled that where statutory rules are silent it can be supplanted by administrative order consistent with the objective of the act. But here it was clear that merit list would be aggregate of written and viva and clarified that there would be no cut off for the viva. We conclude that decision of the High Court was ultra vires the rules of 1961 and is manifestly arbitrary," the Court held. .However, bench did not unseat the selected candidates of 2017 since they were already serving the judiciary and removing them would not only be "harsh" but also deprive the higher judiciary of candidates with experience. "We cannot direct unseating of candidates who are performing judicial function since it is against public interest. While grievance is that they would rank higher ... It cannot be lost sight that all selected candidate are qualified for judicial office and unseating then would be harsh and higher judiciary would lose the candidates with experience. Thus we conclude that petitioners cannot be inducted at the higher judiciary and many of them are now in active practice. Them not qualifying in higher judicial service is not a reflection of their merit and shall not come in their way. ," the Constitution bench ruled. .The bench, however, did not pronounce on the issue of whether rules of the game can be changed once the selection process has commenced since that issue did not arose in the facts of the Kerala case. "In view which we have taken, we have not considered the broader constitutional issue referred to constitution bench and the question is kept open," the Court said. .Senior Advocate V Chitambaresh with Advocates PV Dinesh, Haripriya, Raghenth Basant, Kuriakose Varghese, Sriram Parakkat, MS Vishnu Shankar appeared for the candidates. Senior Advocate Dama Seshadri Naidu appeared for the Kerala High Court..[Read live coverage here].[Read judgment]