Paragraph numbers below are the court’s original numbering, recovered from the source text.
23. Applying the above legal proposition, it is seen that in this matter, the mode of evaluation was provided for in the Rules. This is not a case where the Rules were silent. Mr. Hansaria, placed considerable reliance on the decision of this Court in Kavita Khamboj(supra), where a three-judge bench of this Court while upholding the prescription of minimum 50% marks in interview for promotion as District Judges, observed that the rules can be supplemented to fill in the gaps. However, it particularly distinguishes the instances 896 where the Rules specifically provide for the mode of evaluation. In this regard, it is noteworthy that the Supreme Court speaking through DY Chandrachud CJI, itself notes that the matter would have been entirely different if the Rules specifically provided that the final merit list would be on the basis of aggregate marks: “52. Moreover, the Rules in the present case are entirely silent in regard to the prescription of a minimum eligibility for clearing a competitive test, on the one hand, and the viva voce, on the other hand. If the Rules were to specifically provide in a given case that the criterion for eligibility would be on the combined marks of both the written test and the viva voce, the matter would have been entirely different. [P.K. Ramachandra Iyer v. Union of India, (1984) 2 SCC 141, para 44 : 1984 SCC (L&S) 214] Rule 6(1)(a) and Rule 8 being silent as regards the manner in which merit and suitability would be determined, administrative instructions can supplement the Rules in that regard. This is not a case where the Rules have made a specific provision in which event the administrative instructions cannot transgress a rule which is being made in pursuance of the power conferred under Article 309 of the Constitution. For instance, if the Rules were to provide that there would be a minimum eligibility requirement only in the written test, conceivably, it may not be open to prescribe a minimum eligibility requirement in the viva voce by an administrative instruction. Similarly, if the Rules were to provide that the eligibility cut-off would be taken on the basis of the overall marks which are obtained in both the written test and the viva voce, conceivably, it would not be open to the administrative instructions to modify the terms.” [emphasis supplied]
24. In the present case, the Resolution (12.1.2015) prescribing qualifying marks for viva voce is not a case of supplementing the rules but appears to us as a case where the Rules pertaining to the final selection of candidates, have been substituted. Therefore, the decision in Kavita Khamboj(supra) is clearly distinguishable.
25. On the other hand, the decision in Sivanandan C.T. (supra), is squarely applicable to the facts of the present case. In that case, the [2024] 8 S.C.R. Salam Samarjeet Singh v. The High Court of Manipur at Imphal & Anr Court held that the Kerala High Court erred in fixing the minimum cut-off contrary to Rule 2(c)(iii) of Kerala State Higher Judicial Service Special Rules,1961 which provided that the aggregate of the written test and the viva voce would be taken into consideration for appointment. There also, the Rules were subsequently amended in 2017 to prescribe minimum cut-off of 35% in the viva voce. It is essential to note that while the intention for introducing a minimum cut-off through the High Court Resolution may be bona fide, in the present case, it is not grounded in legality as it cannot override the statutory rules. The minimum marks for interview was prescribed through a High Court Resolution without amending the rules.
26. In view of the above discussion, we hold that the executive instructions cannot override statutory Rules where the method of final selection by combining the cumulative grade value obtained in the written and the viva voce examinations is specified categorically. Issue A is answered accordingly. Issue B
27. The second issue that falls for our consideration is whether the High Court’s decision frustrates the substantive legitimate expectation of the petitioner. In Sivanandan CT (supra), a constitution bench of five judges of this Court speaking through Chandrachud DYC J. succinctly explained the principle as under: “40. 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 honour the promises made or practices established unless there is a good reason not to do so. In Nadarajah [R. (Nadarajah) v. Secy. of State for the Home Deptt., 2005 EWCA Civ 1363] , Laws, L.J. 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 898 actions must be held to scrupulous standards to prevent misuse of public power and ensure fairness to citizens. “45. The underlying basis for the application of the doctrine of legitimate expectation has expanded and evolved to include the principles of good administration. Since citizens repose their trust in the State, the actions and policies of the State give rise to legitimate expectations that the State will adhere to its assurance or past practice by acting in a consistent, transparent, and predictable manner. The principles of good administration require that the decisions of public authorities must withstand the test of consistency, transparency, and predictability to avoid being regarded as arbitrary and therefore violative of Article 14.”
28. The Court therein observed that 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 a violation of Article 14.
29. Let us now apply the above principle to the present case. The unamended MJS Rules, 2005 generated a legitimate expectation in the candidate that the merit list would be drawn based on the aggregate of the total marks secured both in the written examination and the viva voce examination. Moreover, the petitioner had no notice about the minimum cut-off for the viva-voce segment which was introduced just on the eve of the viva-voce test, well after the conclusion of written examination. If the candidate had been informed in advance, he could have prepared accordingly, ensuring a fair and predictable process.
30. The petitioner in this case, is on a similar footing as the petitioners in Sivandandan CT (supra) where it was noted as under: “13. In the above backdrop, it is evident that when the process of selection commenced, all the candidates were put on a notice of the fact that : (i) the merit list would be drawn up on the basis of the aggregate marks obtained in the written examination and viva voce; (ii) candidates whose marks were at least at the prescribed minimum in the written examination would qualify for the viva voce; and (iii) there was no cut-off applicable in respect of the [2024] 8 S.C.R. Salam Samarjeet Singh v. The High Court of Manipur at Imphal & Anr marks to be obtained in the viva voce while drawing up the merit list in the aggregate.”
31. In the present case, no notice was given to the petitioner regarding the imposition of minimum 40% marks for interview. Prescribing minimum marks for viva voce segment may be justified for the holistic assessment of a candidate, but in the present case such a requirement was introduced only after commencement of the recruitment process and in violation of the statutory rules. The decision of the Full Court to depart from the expected exercise of preparing the merit list as per the unamended Rules is clearly violative of the substantive legitimate expectation of the petitioners. It also fails the tests of fairness, consistency, and predictability and hence is violative of Article 14 of the Constitution of India.
32. Before we conclude, we may also advert to the contention that after participating in the recruitment process, the unsuccessful candidates cannot turn around and challenge the recruitment process.6 We are of the view that it is equally well-settled that the principle of estoppel cannot override the law.7 Such legal principle was reiterated by the Supreme Court in Dr.(Major) Meeta Sahai Vs. Union of India8 where it was observed as under: “17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” Madan Lal v. State of J&K (1995) 3 SCC 486; Dhananjay Malik v. State of Uttaranchal (2008) 4 SCC 171; Ramesh Chandra Shah v. Anil Joshi (2013) 11 SCC 309 ; Anupal Singh v State of Uttar Pradesh (2020) 2 SCC 173 Krishna Rai v Banaras Hindu University (2022) 8 SCC 713 [2019] 15 SCR 273 : (2019) 20 SCC 17 900
33. In light of the above discussion, the opinion of Justice Shiva Kirti Singh is upheld. This Court is not in agreement with the opinion rendered by Justice Banumathi.
34. The petitioner, is therefore, entitled to be declared successful in the recruitment test. It is also noteworthy that despite getting more than 50% marks in the written exam, he was only called for the interview round after he filed a Right to Information (RTI) Application to know his marks. A corrigendum was later issued by the High Court in this regard.
35. It would be unjustified to deny the sole SC candidate, who successfully qualified both the written exam and the interview, in accordance with the then existing rules.
36. Following the above conclusion and to avoid disturbing the seniority of those who are already serving in the same cadre vis-à-vis the petitioner who is found entitled to recruitment, the following order is passed: The High Court should declare the petitioner to be successful by virtue of his scoring 50.6% in aggregate marks in the recruitment tests. He be issued appointment order. However, the appointed petitioner will be entitled to seniority only from the date of his appointment. The petitioner shall not be entitled to any actual monetary benefits for any period prior to his appointment. II. The appointee should be given notional seniority from the year 2015 when the interview was conducted. It is however made clear that this notional seniority is only for the purpose of superannuation benefits. III. The above directions be implemented within four weeks from today.
37. The matter stands disposed of and answered on the above terms. Parties to bear their own cost. Result of the case: Matter disposed of. †Headnotes prepared by: Ankit Gyan