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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 ..... Mohen Singh, Adv., Priyanka, Adv., P.V. Dinesh, AOR, Oommen Anna A., Adv., Urvashi Chauhan, Adv., Haripriya Padmanabhan, Adv., Kuriakose Varghese, Adv., V. Shyamohan, Adv., Shrutanjaya Bhardwaj, Adv., Isha Ghai, Adv., Akshat Gogna, Adv. for Kmnp Law, Niranjan Reddy, Sr. Adv., Sriram Parakkat, Adv., M.S. Vishnu Sankar, Adv., Koshy John, Adv., Sreenath S., Adv., Athira G. Nair, Adv., Divya Jyoti Singh, Adv., Aditya Santosh, Adv. for Lawfic, AOR, V. Chitambaresh, Sr. Adv., Lakshmeesh S. Kamath, AOR, Samriti Ahuja, Adv., Sakshi Banga, Adv., Chitra Parande, Adv., Kaustubh Shukla, Adv., Nancy Shamim, Adv., C. Govind Venugopal, Adv., Prakash Ranjan Nayak, AOR, Ashok Panigrahi, Adv., Sanjeev Kumar, AOR, Naik H.K., Adv., Ajay Amritraj, Adv., Nikilesh Ramachandran, AOR, Raghenth Basant, Adv., Liz Mathew, AOR, Mallika Agarwal, Adv., Rameshwar Singh Malik, Sr. Adv., Jitesh Malik, Adv., Abhaya Nath Das, Adv., Yogendra Kumar Verma, Adv., Satish Kumar, AOR, Shraddha Deshmukh, AOR, Nikhil Singhvi, Adv., Bilal Ikram, Adv., Utkarsh Kokcha, Adv., Rishabh Sancheti, Adv., Padma Priya, Adv., Anchit Bhandari, Adv., Suyash Jain, Adv., Chirag Kalani, Adv. and K. Paari Vendhan, AOR For the Respondents : K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ....................... 18 d. Consistency and predictability as aspects of non-arbitrariness ............................................... 26 D. Application of the doctrine of legitimate expectation............................................................................... 30 i. What has the High Court committed itself to? .................................................................................. 30 ii. Whether the High Court has acted unlawfully in relation to its commitment?..................................... 31 iii. What should this Court do? ........................................................................................................... 34 E. Conclusions.............................................................................................................................................. 35 A. Background 1. On 14 November 2017, a Bench of two Judges of this Court referred a batch of four petitions, which invoked the jurisdiction of this Court under Article 32 of the Constitution, to the Constitution Bench in Sivanandan C T v. High Court of Kerala [(2018) 1 SCC 239] Eleven petitioners are before this Court, all of whom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aragraph 5 stipulates that the selection would be on the basis of a competitive examination consisting of a written examination and a viva-voce. The total marks assigned for the written examination were 300 comprising of two papers, each carrying maximum of 150 marks. General candidates and candidates belonging to the OBC category who secure 50% and the SC/ST candidates who secure 40% aggregate minimum marks for both the written papers together were to be declared as qualified for the vivavoce. The maximum marks prescribed for the viva-voce were fifty. Paragraph 5 stipulates that "the merit list of successful candidates will be prepared on the basis of the total marks obtained in the written examination and vivavoce." 6. Following the notification which was issued by the High Court on 30 September 2015, the written test was conducted on 12 and 13 March 2016. On 17 December 2016, the notification regarding candidates who had qualified in the written test came to be published. Following this, between 16 January and 24 January 2017, the viva-voce for all the qualified candidates was conducted. 7. On 27 February 2017, after the viva-voce was conducted, the Administrative Committee of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lined to take in the present case, it does not become necessary to rule on the broader constitutional issue on which a reference has been made in Tej Prakash Pathak (supra). The reason why we have come to this conclusion would be elaborated shortly hereinafter. B. Submissions 10. During the course of the hearing, we have heard arguments on behalf of the petitioners by Mr V Chitambaresh, senior counsel, Mr P V Dinesh, Ms Haripriya Padmanabhan, Mr Raghen Basant and Mr Kuriakose Verghese, counsel. Principally, the modalities which have been followed by the High Court of Kerala for the selection of candidates have been assailed on four grounds: (i) In specifying a cut off for the viva-voce, the High Court has acted in a manner contrary to Rule 2(c)(iii) of the 1961 Rules; (ii) The scheme which was notified by the High Court on 13 December 2012 had expressly provided that there shall be no cut off for the purposes of the viva-voce; (iii) According to the notification, the only criteria for the purpose of shortlisting candidates would be length of practice rendered by candidates at the Bar which was to operate in a situation where the number of candidates was found to be unusual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0% marks (relaxed to 40% for SC/ST candidates) would qualify for the viva-voce. The notification spells out that the aggregate of the marks in the written examination and the viva-voce would form the basis of drawing the merit list. 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 marks to be obtained in the viva-voce while drawing up the merit list in the aggregate. 14. The decision of the High Court to prescribe a cut-off for the viva-voce examination was taken by the Administrative Committee on 27 February 2017 after the viva-voce was conducted between 16 and 24 January 2017. The process which has been adopted by the High Court suffers from several infirmities. Firstly, the decision of the High Court was contrary to Rule 2(c)(iii) which stipulated that the merit list would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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. ii. Legitimate Expectation 17. Another important aspect that arises for our consideration in these batch of petitions is whether the High Court's decision frustrates the legitimate expectation of the petitioners. Article 233 of the Constitution provides that the appointment of persons to be posted as district judges in any state shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such state. Further, Article 235 vests with the High Court the control over district courts including the posting and promotion of district judges. The maintenance of efficiency of judicial administration is entirely within the control and jurisdiction of the High Court [State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640]. The Governor, in consultation with the High Court, prescribes rules laying down the method of appointment and the necessary eligibility criteria for the selection of suitable candidates for the post of district judges. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the doctrine of legitimate expectation gave the affected party a right to challenge the legality of the adverse actions on the ground that the authority had acted beyond the powers conferred upon it by the legislation including the failure to observe the principles of natural justice. Lord Diplock reiterated the doctrine of legitimate expectation in terms of the duty of public authorities to act fairly in their dealings with individuals. 21. The doctrine of legitimate expectation received further impetus in the decision of the Privy Council in Attorney General of Hong Kong v. Ng Yuen Shiu [[1983] 2 WLR 735]. In that case, a senior immigration officer announced that each illegal entrant from China would be interviewed before passing deportation orders against them. The respondent, an illegal entrant from China, was detained and removal orders were passed against him without any opportunity of hearing. Therefore, the issue was whether the respondent had a legitimate expectation of the grant of a hearing before repatriation by the immigration officer. It was held that a public authority is bound by its undertakings. Lord Fraser explained the contours of legitimate expectations i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be treated in a fair and non-arbitrary manner in their interactions with the state and its instrumentalities. This Court held that a decision taken by an executive authority without considering the legitimate expectation of an affected person may amount to an abuse of power: "7. [...] To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review." The court held that whether the expectation of a claimant is legitimate or not is a question of fact which has to be decided after weighing the claimant's expectation against the larger public interest. Thus, while dealing with the claims of legitimate expectations, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timate expectation where a claimant expects conferral of a substantive benefit based on the existing promise or practice of the public authority. The doctrine of substantive legitimate expectation has now been accepted as an integral part of both the common law as well as Indian jurisprudence. c. Substantive Legitimate Expectation 27. In R v. North and East Devon Health Authority, ex parte Coughlan [[2001] QB 213], the Court of Appeal laid down the test of abuse of power to determine whether a public authority can resile from a prima facie legitimate expectation. It was held that frustration of a substantive legitimate expectation by public authorities would be unfair and amount to abuse of power. Importantly, it was held that abuse of power constitutes a ground for the courts to exercise judicial review of executive actions. 28. In Nadarajah v. Secretary of State for the Home Department, [[2005] EWCA Civ 1363] the Court of Appeal added another facet to the doctrine of substantive legitimate expectation by grounding it in the principles of good administration. Importantly, the court identified that consistency and probity are tenets of a good administration. Laws LJ explained t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy: "15. What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term "established practice" refers to a regular, consistent, predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation." (emphasis supplied) In Ram Pravesh Singh (supra), this Court noted that the efficacy of the doctrine of legitimate expectation is weak as the claimant is only entitled to the following two reliefs: (i) an opportunity to show cause before the expectation is negatived; and (ii) an explanation as to the cause for denial. The Court further clarified that a claim based on legitimate expectation can be negatived on factors such as public interest, change in policy, conduct of the claimant, or any other valid or bona fide reason provided by the public authority. 31. While dealing with the doctrine of legitimate expe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent sons of the arrack workers. The state government submitted before this Court that it was practically difficult to provide employment to the arrack workers. The Court accepted that the workers had a legitimate expectation to be considered for the appointment as daily wage workers. However, it gave credence to the overriding public interest cited by the state government to resile from the promise made to the arrack workers. After weighing the expectation of the workers against the public interest, this Court held that the expectation of the workers was not legitimate. 34. In State of Jharkhand v. Brahmputra Metallics [2020 SCC OnLine SC 968], the issue before this Court was whether the respondent was entitled to claim a rebate or deduction on electricity duty under the Industrial Policy, 2012 for a period of five years from the commencement of production. Although the policy was announced in 2012, the exemption notification was issued in 2015 with prospective effect. While dealing with the issue of whether the state government frustrated the legitimate expectation of the respondent, one of us (D Y Chandrachud, J) observed that the representations made by the public authorities s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a bona fide decision of public authorities which denies a legitimate expectation provided such a decision is taken in the larger public interest. Thus, public interest serves as a limitation on the application of the doctrine of legitimate expectation. 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. 37. In Paponette v. Attorney General of Trinidad and Tobago [[2012] 1 AC 1] the Privy Council held that a claimant only has to prove the legitimacy of their expectation. In this regard, the claimant must establish that the expectation is based on an existing promise or practice. Once the claimant establishes their legitimate expectation, the onus shifts to the authority to justify the frustration of the expectation by identifying any overriding public interest. This Court has been applying similar burden requirements in cases of legitimate expectation [Union of India v. Hindustan Development Corp, (1993) 3 SCC 499; State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantive legitimate expectation. The Court held that the government's decision led to the denial of substantive legitimate expectations of the lecturers because: (i) the government by artificially grouping the lecturers with teachers of nationalized schools belied the expectation of the lecturers to obtain promotion and attain higher positions in the department depending upon inter-se seniority; and (ii) the government's decision was contrary to the previous representation, lacked any compelling public interest, and was therefore unfair and amounted to an abuse of power. 41. In Shyama Nandan Mishra (supra), the Court also highlighted that regularity, predictability, certainty, and fairness are important facets of governance: "36. Taking a cue from above, where the substantive legitimate expectation is not ultra vires the power of the authority and the court is in a position to protect it, the State cannot be allowed to change course and belie the legitimate expectation of the respondents. As is well known, Regularity, Predictability, Certainty and Fairness are necessary concomitants of Government's action and the Bihar government in our opinion, failed to keep to their c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avoid being regarded as arbitrary and therefore violative of Article 14. 44. From the above discussion, 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. However, it is important to clarify that the doctrine of legitimate expectation cannot serve as an independent basis for judicial review of decisions taken by public authorities. Such a limitation is now well recognized in Indian jurisprudence considering the fact that a legitimate expectation is not a legal right [Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499; Bannari Amman Sugars Ltd v. CTO, (2005) 1 SCC 625; Monnet Ispat and Energy Ltd v. Union of India, (2012) 11 SCC 1; Union of India v. Lt. Col. P K Choudhary (2016) 4 SCC 236; State of Jharkhand v. Brahmputra Metall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 2015 examination notification issued by the High Court. Thus, the High Court lawfully committed itself to preparing a merit list of successful candidates on the basis of the total marks obtained in the written examination and the viva voce. ii. Whether the High Court has acted unlawfully in relation to its commitment? 48. The Administrative Committee of the High Court apprehended that a candidate who performed well in the written examination, even though they fared badly in the viva voce, would get selected to the post of District and Sessions Judge. The Administrative Committee observed that recruitment of such candidates would be a disservice to the public at large because they possessed only "bookish" knowledge and lacked practical wisdom. To avoid such a situation, the Administrative Committee of the High Court decided to apply a minimum cut-off to the viva voce examination. The decision of the Administrative Committee was approved by the Full Bench of the High Court. 49. The Constitution vests the High Courts with the authority to select judicial officers in their jurisdictions. The High Court, being a constitutional and public authority, has to bear in the mind the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of power. 52. The High Court's decision also fails to satisfy the test of consistency and predictability as it contravenes the established practice. The High Court did not impose the requirement of a minimum cut-off for the viva voce for the selections to the post of District and Sessions Judges for 2013 and 2014. Although the High Court's justification, when analyzed on its own terms, is compelling, it is not grounded in legality. The High Court's decision to apply a minimum cut-off for the viva voce frustrated the substantive legitimate expectation of the petitioners. Since the decision of the High Court is legally untenable and fails on the touchstone of fairness, consistency, and predictability, we hold that such a course of action is arbitrary and violative of Article 14. iii. What should this Court do? 53. The question which now arises before the Court is in regard to the relief which can be granted to the petitioners. 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 functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e viva voce examination is contrary to Rule 2(c)(iii) of the 1961 Rules. (v) 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. (vi) In terms of relief, we hold that it would be contrary to the public interest to direct the induction of the petitioners into the Higher Judicial Service after the lapse of more than six years. Candidates who have been selected nearly six years ago cannot be unseated. They were all qualified and have been serving the district judiciary of the state. Unseating them at this stage would be contrary to public interest. To induct the petitioners would be to bring in new candidates in preference to those who are holding judicial office for a length of time. To deprive the state and its citizens of the benefit of these experienced judicial officers at a senior position would not be in public interest. 56. In the view which we have taken in the above terms, we have not considered it necessary to answer the broader question which has been referred to the Constitution Bench. Besides, the question has been s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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