IMPORTANT POINTS
(1) Constitutionality of Rules stipulating minimum qualifying marks in viva voce test as a part of selection criteria for appointment to District Judiciary in the States of Bihar and Gujarat respectively – Governor is under no compulsion to consult Public Service Commission in case Commission does not wish to be consulted. Such a course would be in consonance with proviso to Article 320 (3) of Constitution. Concerned Gujarat Rules cannot be declared to be void on this count.
(2) Prescription of minimum qualifying marks for interview is permissible and this is not in violation of All India Judges (2002) which accepted certain recommendations of the Shetty Commission.
(3) Validity challenge to Rule 11 of Bihar Superior Judicial Service Rules, 1951 and Rule 8 (3) of Gujarat State Judicial Service Rules, 2005 (as amended in 2011) prescribing minimum marks for interview are repelled.
(4) Principle of estoppel cannot override law – Dismissal of a Special Leave Petition has no consequence on question of law.

Headnote:
(A) Constitution of India – Article 32 – Indian Evidence Act, 1872 – Section 115 – Civil Procedure Code, 1908 – Section 11 – Writ Petition – Maintainability – Challenge to selection process – Legal position is that after participating in recruitment process, unsuccessful candidates cannot turn around and challenge recruitment process – However, it is also settled that principle of estoppel cannot override law – To non-suit writ petitioners at threshold would hardly be reasonable particularly when alleged deficiencies in the process could be gauged only by participation in selection process – It is not same writ petitioner who has approached this Court under Article 32 of Constitution – Court here is confronted with a different set of facts, another set of litigants who have raised additional contentions – Writ petition should not be dismissed on the ground of res-judicata – In any case, dismissal of a Special Leave Petition has no consequence on question of law. (Paras 19, 20 and 23 )
(B) Service Law – Appointment of Judicial Officers – Constitutionality of Rules stipulating minimum qualifying marks in viva voce test as a part of selection criteria for appointment to District Judiciary in States of Bihar and Gujarat respectively – In case of inconsistency of existing Rules with recommendations, Rules will prevail – Writ petitioners were aware of rules of game i.e., prescription of minimum marks, well before selection process commenced – Courts can fix minimum qualifying marks for viva voce – In present cases, Rules provided for qualifying marks – Prescription of minimum cut-off in recruitment process was notified for information of candidates well before commencement of selection process under Patna High Court and also under Gujarat High Court – Justice Shetty Commission was constituted to bring about uniformity in service conditions of judicial officers – Recommendations made by Commission are in nature of guidelines and those will have to be seen in context of Rules governing recruitment of judicial officers – By virtue of decision in All India Judges (2002), it cannot be said that adequate elbow room was not available to prescribe qualifying marks in interview segment to ensure selection of best possible person – Prescription of minimum marks in Rules is not found to be in contravention of Judgment in All-India Judges (2002). (Paras 44, 45, 47, 48 and 49)
(C) Service Law – Appointment of Judicial Officers – Whether prescription of minimum marks for viva voce violates Articles 14 and 16 of Constitution of India – Much turns on nature of post and extent of weightage given to viva voce – Prescribing minimum marks for interview is not only desirable but also necessary – Recruitment procedure should not only test candidate’s intellect but also their personality, for appointment to posts in higher judiciary – Reliance on competitive exams or written tests as sole determinant of merit is increasingly being frowned upon – Written test cannot possibly capture full spectrum of individual's abilities and potential – Interview can also provide a medium for marginalized candidates to showcase their talents in ways which a written test may not possibly allow – However, candidates hailing from English-speaking urban environments might possess linguistic fluency and familiarity with cultural norms typically associated with interviews and are likely to navigate viva voce segment with relative ease – Conversely, candidates from marginalized communities may face challenges due to their lack of exposure to urban settings – Members of Interview Board can provide a level-playing field during interview process for those who come from a disadvantaged background, to assess true merit and potential of interviewees – Prescription of reasonable qualifying cut-off marks is not considered discriminatory – It cannot be said that concerned recruitment Rules are unconstitutional – There is no violation of legitimate expectation of writ petitioners so as to fail test under Article 14. [Bihar Superior Judicial Service Rules, 1951 – Rule 11] (Paras 53, 56, 57, 64, 65, 66, 67 and 68)
(D) Constitution of India – Articles 234 and 320 – Appointment of Judicial Officers – If certain resolvable deficiencies are noticed in selection process, High Court has elbow room to take corrective measures – Process of moderation can always be exercised bona fide if it uniformly benefits all candidates – Consultation with High Court as envisaged in Article 234 is to preserve constitutional mandate of Independence of Judiciary which forms part of basic structure of Constitution of India – Consultation with High Court must be given primacy in matters of judicial recruitment as compared to consultation with Public Service Commission – Governor is under no compulsion to consult Public Service Commission in case Commission does not wish to be consulted – Such a course would be in consonance with proviso to Article 320 (3) of Constitution – To ensure more clarity and certainty with the process, it is necessary to declare that processes such as moderation should be preferably set out in Rules to ensure transparency and avoid dilemmas in selection process – Moderation of marks for bona-fide reasons should be permitted when authority needs to do so, to address issue of non-availability of adequate number of candidates for consideration in interview segment – As a confidence building measure, designation of those in interview panel, could also be provided for appropriately, in Rules. (Paras 78, 87, 93, 100 and 102)
Facts of the case:
Issues to be considered here are:
(i) Whether prescription of minimum marks for viva voce is in contravention of the law laid down by this Court in All India Judges (2002) which accepted certain recommendations of the Shetty Commission?
(ii) Whether the prescription of minimum marks for viva voce is violative of Articles 14 and 16 of the Constitution of India?
(iii) Whether the selection process in Bihar is vitiated given the moderation of marks and corrective steps, highlighted by the petitioners in the Bihar Selection process?
(iv) Whether non-consultation with the Public Service Commission as required under Article 234 of the Constitution for selection to the post of Civil Judge in the State of Gujarat would render the Gujarat Rules, 2005 (as amended in 2011) void?
Findings of Court:
It is undoubtedly mandatory to consult High Court for framing Rules and any Rule enacted by State Government without such consultation is considered ultra-vires. Rationale is to safeguard judicial service from executive influence which is rooted in constitutional objective of establishing an independent judiciary.
Result : Writ Petitions dismissed.

1. The common challenge in these six writ petitions filed under Article 32 of the Constitution of India is to the constitutionality of the Rules stipulating minimum qualifying marks in the viva voce test as a part of the selection criteria for appointment to the District Judiciary in the States of Bihar and Gujarat respectively. The writ petitioners have approached this Court alleging a violation of their fundamental rights under Articles 14 and 16 contained in Part III of the Constitution of India. The specific consideration to be made in these matters is whether prescribing minimum qualifying marks for viva voce is in contravention of the law laid down by this Court in All India Judges Association and Others vs. Union of India and Others, (2002) 4 SCC 247 [for short “All India Judges (2002)] which accepted certain recommendations of Justice KJ Shetty Commission (for short “Shetty Commission”). The recruitment pertains to the selection of judicial officers of different ranks and respective selection cycles i.e. District Judge (Entry Level) by direct recruitment from the Bar (2015 Advertisement) for the State of Bihar and the post of Civil Judge (2019 and 2022 Advertisement) for the State of Gujarat. The Individual facts in the writ petitions may differ but the legal arguments broadly overlap. Wherever necessary, the individual facts and legal arguments will be dealt with separately.

(I) FACTS

2. The writ petition i.e. WP (C) No. 251 of 2016 (considered here as the lead case), relates to the recruitment of District Judge (Entry Level) direct from Bar Examination (2015), in the State of Bihar. The recruitment process is governed by the Bihar Superior Judicial Service Rules, 1951 (for short “Bihar Rules, 1951”) as amended, from time to time. The prayer in the writ petition is to strike down Clause 11 of Appendix “C” of Bihar Superior Judicial (Amendment) Rules 2013 which is projected to be contrary to the recommendation of the Shetty Commission, as accepted by this Court in All India Judges (2002) in paragraphs 37 and 38. The second prayer in the writ petition is to set aside the selection for Bihar Superior Judicial Service, under the Advertisement No. 1/2015 as published vide notice dated 08.04.2016.

3. The connected matters i.e. WP (C) No. 663/2021, WP (C) No. 735/2021, WP (C) No. 1073/2022, WP (C) No. 1146/2022 and WP (C) No. 785/2023 relate to the recruitment to the post of Civil Judge in Gujarat. The writ petitioners therein challenged the vires of the amended Rule 8 (3) of the Gujarat State Judicial Service Rules, 2005 (for short “Gujarat Rules, 2005”), which was amended by notification dated 23.6.2011 as well as the corresponding clauses of the advertisement of the respective recruitment years. The ancillary prayer is to prepare a fresh select list based on the aggregate marks of written examination and interview, irrespective of the cut-off marks prescribed.

(A) Bihar Selection Process (2015)

4. The main writ petition is filed by 46 unsuccessful candidates who participated in the District Judges (Direct from Bar) Examination in 2015. The Bihar Rules, 1951 came into force on 31.7.1951. The amendment to the Bihar Rules, 1951 was brought by a notification dated 3.4.2013, which, inter-alia, provided for a screening test, a written main test, and also an interview for selection to the Bihar Superior Judicial Service. The total marks in the main written examination and the interview were 250 and 50 marks respectively. To qualify, candidates had to secure a minimum of 150 marks out of 250 marks (60%) in the main written examination and at least 10 out of the total 50 marks (20%), in the viva voce segment.

4.1. Following the further amendment on 3.12.2014 of the Bihar Rules, 1951, a proviso was added to clause 10 of Appendix C, granting power to the High Court to relax the qualifying marks in aggregate. Clauses 10,11 and 12 of the appendix C of Bihar Rules, 1951 provided as follows:

“10. A candidate will qualify for interview only if