2023 (7) TMI 1438 - SC - Indian Laws

Vires of High Court's decision to prescribe a cut-off for the viva-voce - vires of Kerala State Higher Judicial Services Special Rules 1961 or not - Doctrine of legitimate expectation. Whether the decision of the High Court was contrary to the 1961 Rules? - HELD THAT - The broader constitutional issue which has been referred in Tej Prakash Pathak 2013 (3) TMI 768 - SUPREME COURT 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. 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. Legitimate Expectation - whether the High Court s decision frustrates the legitimate expectation of the petitioners? - HELD THAT - 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 - 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. 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 - 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. 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 - 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 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. Relief which can be granted to the petitioners - HELD THAT - 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 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 - 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. 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 - 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 - 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. Petition disposed off.

Summary

Issues Involved:
1. Whether the High Court's decision to prescribe a cut-off for the viva-voce was ultra vires the 1961 Rules.
2. Whether the High Court's decision frustrated the legitimate expectation of the petitioners.
3. What relief should be granted to the petitioners.

Detailed Analysis:

i. The decision of the High Court was ultra vires the 1961 Rules
The Supreme Court found that the High Court's decision to prescribe a cut-off for the viva-voce examination was contrary to Rule 2(c)(iii) of the 1961 Rules. The 1961 Rules, framed under Articles 233 and 309 of the Constitution, stipulated that the merit list would be drawn based on the aggregate marks obtained in the written examination and viva-voce, without any cut-off marks for the viva-voce. The scheme of examination notified on 13 December 2012, and the subsequent notification dated 30 September 2015, both reinforced this stipulation. The High Court's decision to impose a cut-off for the viva-voce after the examination process had commenced was thus ultra vires the 1961 Rules and manifestly arbitrary.

ii. Legitimate Expectation
The Supreme Court delved into the doctrine of legitimate expectation, which is founded on principles of fairness and non-arbitrariness in government dealings. The petitioners had a legitimate expectation that the merit list would be prepared based on the aggregate marks from the written examination and viva-voce, as per the 1961 Rules, the scheme of examination, and the 2015 notification. The High Court's decision to impose a cut-off for the viva-voce was a departure from this established procedure, thereby frustrating the petitioners' legitimate expectation.

a. Doctrine of legitimate expectation under common law: The doctrine, rooted in fairness and non-arbitrariness, mandates that public authorities honor their promises or past practices unless there is a compelling reason not to do so. This principle was established in cases like Schmidt v. Secretary of State for Home Affairs and further developed in Attorney General of Hong Kong v. Ng Yuen Shiu and Council of Civil Service Unions v. Minister for the Civil Service.

b. Doctrine of legitimate expectation under Indian law: Indian jurisprudence has incorporated this doctrine, emphasizing that public authorities must act fairly and non-arbitrarily. In cases like Food Corporation of India v. Kamdhenu Cattle Feed Industries and Union of India v. Hindustan Development Corporation, the courts have held that legitimate expectations must be considered unless overridden by compelling public interest.

c. Substantive Legitimate Expectation: The doctrine has evolved to include substantive rights, where a claimant expects a substantive benefit based on an existing promise or practice. The courts have held that frustrating such expectations without a compelling public interest amounts to an abuse of power.

d. Consistency and predictability as aspects of non-arbitrariness: Consistency and predictability are essential facets of good administration and non-arbitrariness. The High Court's decision to impose a cut-off for the viva-voce, contrary to its previous practice, was inconsistent and unpredictable, thus violating the principles of good administration and Article 14 of the Constitution.

iii. Application of the doctrine of legitimate expectation
The Supreme Court formulated three questions to apply the doctrine of legitimate expectation in this case:
1. What has the High Court committed itself to?
2. Whether the High Court has acted unlawfully in relation to its commitment?
3. What should this Court do?

i. What has the High Court committed itself to? The High Court committed itself to preparing the merit list based on the aggregate marks from the written examination and viva-voce, without any cut-off for the viva-voce, as per the 1961 Rules, the scheme of examination, and the 2015 notification.

ii. Whether the High Court has acted unlawfully in relation to its commitment? The High Court's decision to impose a cut-off for the viva-voce after the examination process had commenced was contrary to the established rules and practices, thus acting unlawfully and arbitrarily.

iii. What should this Court do? The Supreme Court concluded that it would not be in the public interest to unseat the selected candidates who have been serving as District and Sessions Judges for about six years. Instead, the Court clarified that the petitioners' failure to gain selection does not reflect on their merits or abilities and should not affect their future prospects.

Conclusions:
1. The principles of good administration require consistency, transparency, and predictability in public authority decisions to avoid arbitrariness and violation of Article 14.
2. An individual claiming a benefit based on substantive legitimate expectation must establish the legitimacy of the expectation and that its denial led to a violation of Article 14.
3. A public authority must objectively demonstrate that its decision to frustrate a legitimate expectation was in the public interest.
4. The High Court's decision to apply a minimum cut-off for the viva-voce was contrary to Rule 2(c)(iii) of the 1961 Rules.
5. The decision frustrated the petitioners' substantive legitimate expectation, making it arbitrary and violative of Article 14.
6. It would be contrary to public interest to unseat the selected candidates after six years. The petitioners' failure to gain selection should not affect their future prospects.

The petitions were accordingly disposed of, and pending applications, if any, were also disposed of.