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TMI Blog2023 (7) TMI 1438X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legitimac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rishabh Sancheti, Adv., Padma Priya, Adv., Anchit Bhandari, Adv., Suyash Jain, Adv., Chirag Kalani, Adv. and K. Paari Vendhan, AOR For the Respondents : K.M. Nataraj, ASG, Dama Seshadri Naidu, Sr. Adv., T.G. Narayanan Nair, AOR, Ramesh Babu M.R., Adv., Shivali Seshadri Naidu, Adv., Shivali Chaudhary, Adv., Pawanshree Agrawal, Adv., Sunil Kumar Jain, AOR, Rashika Swarup, Adv., Gaurav Agrawal, AOR, P.I. Jose, AOR, James P. Thomas, Adv., Ravi Sagar, Adv., Nikhil Goel, AOR, Naveen Goel, Adv., Kartik Kaushal, Adv., Adhitya Koshy Roy, Adv., Sidhi Gupta, Adv., Vijay Hansaria, Sr. Adv., Maibam Nabaghanashyam Singh, AOR, Mahesh Thakur, Adv., Shakti K. Pattanaik, Adv., Diksha Rai, AOR, Ragini Pandey, Adv., Rameshwar Prasad Goyal, AOR, Manish Goswami, Adv., C.M. Angadi, Adv., Deepanwita Priyanka, AOR, Nishe Rajen Shonker, AOR, Anu K. Joy, Adv., Abraham C. Mathew, Adv., Alim Anvar, Adv., Debojit Borkakati, AOR, Prashant Padmanabhan, AOR, P.A. Noor Muhamed, AOR, Sunny Markose, Adv., K.P. Mohamad Shareef, Adv., Giffara S., Adv., A. Nowfal, Adv., A. Shukoor, Adv., Shereef K.A., Adv., K.P. Kylasnatha Pillay, Sr. Adv., Rashmi Singhania, AOR, Ranjith K.C., AOR, Niveditha R. Menon, Adv., Aditya Verm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nandan C T v. High Court of Kerala [(2018) 1 SCC 239] 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 1961 [ 1961 Rules ] 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 . 4. By a notification dated 13 December 2012, the High Court of Kerala prescribed the scheme for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebruary 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 cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andidates 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, 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 [Salemi v. Mackellar, [1977] HCA 26]. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [[1985] AC 374]. 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: (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 withd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectations, 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, [(1993) 3 SCC 499] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other 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 [Bannari Amman Sugars Ltd v. CTO, (2005) 1 SCC 625]. In Secretary, State of Karnataka v. Umadevi, [(2006) 4 SCC 1] 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. DDA [(2009) 1 SCC 180] 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 doct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upulous 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 dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 2020 SCC OnLine SC 968; State of Bihar v. Shyama Nandan Mishra, 2022 SCC OnLine SC 554]. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [S G Jaisinghani v. Union of India, 1967 SCC OnLine SC 6]. 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 [(2023) 2 SCC 643], where it was observed that regularity and predictability are hall-marks of good regulation and governance [(2023) 2 SCC 643]. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 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 [See Regina (Bibi) v. Newham London Borough Council, [2002] 1 WLR 237]. 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 pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 secure a minimum of 40% marks and Scheduled Caste/Scheduled Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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