IN THE SUPREME COURT OF INDIA

CIVIL  ORIGINAL  JURISDICTION

WRIT PETITION (CIVIL) NO. 229 OF 2017

Sivanandan C.T. & Ors.                                      …  Petitioner (s)

Versus

High Court of Kerala & Ors.  …  Respondent (s)

WITH

WRIT PETITION (CIVIL) NO. 232 OF 2017,

WRIT PETITION (CIVIL) NO. 379 OF 2017,

AND  

WRIT PETITION (CIVIL) NO. 618 OF 2017

O  R  D  E  R  

1.  The selection of District & Sessions Judges in the Kerala

Higher Judicial Service in the year 2015 has given rise to this

litigation. As per the Notification dated 30.9.2015 the selection

was to be conducted by written examination and viva-voce. The

written  examination  of  two  papers  carried  300  marks  (150

marks for each paper). The viva-voce was for 50 marks. It was

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REPORTABLE

stipulated that those general and OBC candidates who secured

50 per cent in the written examination without any separate

minimum and SC/ST who secured 40 per cent were qualified to

participate in the viva-voce.

2.  In  terms  of  the  Resolution  of  the  Full  Court  dated

13.12.2012, there should be no minimum cut-off marks for the

interview.  The  final  merit  list  was  to  be  prepared  in  the

following manner:-

“..The merit list of successful candidates will be prepared on the basis of the total marks obtained  in  the  written  examination  and viva-voce.”

As a matter of fact, two selections were held in the years 2013

and 2014 without cut-off marks for the viva-voce. As per the

Resolution dated 13.12.2012, after publishing the result of the

examination, the candidates were interviewed by the Selection

Committee.  However,  after  the  viva-voce,  the  Administrative

Committee (consisting of the same members as the Selection

Committee) resolved to draw up a list of successful candidates

on the basis of same separate minimum percentage of marks

in the viva-voce as in the written examination. According to the

Administrative Committee, the fixing of the minimum marks for

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the viva-voce was not a deviation from the approved scheme

since “it  was never  the intention of  the Full  Court  to  select

persons who do not attain the minimum required bench mark

for such a responsible post”. The merit list thus drawn by the

Administrative Committee on the basis of the minimum marks

in  the  viva-voce  was  approved  by  the  Full  Court  and  those

candidates  were  appointed  accordingly.   That  selection  is

challenged in these cases.  

3. The main contention is that the rules of the game could

not have been changed after the game is played and the result

of the game is known to the selectors.  

4. Though  several  other  contentions  are  raised  by  both

sides, we find that the decision in  K. Manjusree v. State of

Andhra Pradesh and another1, squarely applies  to the facts

of this case.  In Manjusree (supra), 75 marks were allotted for

the written examination and 25 marks for the interview. The

aggregate  governed  the  merit.   However,  the  written

examination was conducted for 100 marks. When the Full Court

noticed  this,  a  sub-committee  was  appointed  to  make  the

arithmetical correction to scale down the marks in the written 1 (2008) 3 SCC 512

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examination to 75 instead of 100. The sub-committee did two

things – (1) it made the arithmetical correction (2) it introduced

the same cut-off percentage for the interview as in the written

examination  and  thus  revised  the  merit  list,  which  was

approved by the Full  Court. In the process, a few candidates

were removed from the original merit list including Manjusree.

A Bench of three Judges of this Court held that “introduction of

the requirement of the minimum marks for interview, after the

entire selection process (consisting of written examination and

interview) was completed, would amount to changing the rules

of  the  game  after  the  game  was  played  which  is  clearly

impermissible”.  The  Bench  specifically  noted  that  the

Resolution  of  the  Full  Court  to  not  specifically  stipulate

minimum marks for viva-voce was still in force. Yet, when the

sub-committee introduced the change, the same was approved

by the Full Court.  

5. Tej Prakash Pathak and others v.  Rajesthan High

Court  and others2  has,  however,  specifically  doubted  the

correctness  of  Manjusree  (supra)  on  the  point  whether

“….changing  the  rules  of  the  game  after  the  game  was

2 (2013) 4 SCC 540

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played…. is clearly impermissible” and has made a Reference

to a larger Bench for an authoritative pronouncement. It is also

relevant in this context to note that Salam Samarjeet Singh

v. High Court of Manipur At Imphal and Anr.  3  which dealt

with almost a similar issue was heard by a three Judge Bench in

view of  the difference of  opinion and it  has also since been

posted  along  with  Tej  Prakash (supra)  by  order  dated

10.08.2017. Hence, it is only appropriate to refer this matter

also to the larger bench to be heard along with  Tej Prakash

(supra). Ordered accordingly.

..……………………J.                 (KURIAN JOSEPH)

..…….…..…………J.                  (R. BANUMATHI)

New Delhi; November 14, 2017.  

3 (2016) 10 SCC 484

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