SIVANANDAN C.T. & ORS.versusHIGH COURT OF KERALA & ORS.

                           [2017] 13 S.C.R. 226


A                      SIVANANDAN C.T. & ORS.
                                     v.
                   HIGH COURT OF KERALA & ORS.
                   (Writ Petition (Civil) No. 229 of2017)
B                         NOVEMBER 14,2017
            (KURIAN JOSEPH AND R. BANUMATHI, JJ.]
         Service Law - Judicial Service - Kera/a Higher Judicial
  Service - Selection of District & Sessions Judges -- As per
  notification dated 30-09-2015, the selection was to be conducted
c by written examination and viva-voce - It was stipulated that those
  general and OBC candidates who secured 50 per cent in the written
  examination rnithout any separate minimum and SC/ST who secured
  40 per cent w~re qualified to participate in the viva-voce - However,
  in terms of the resolution of the Full Court dated 13-12-2012 there
D should be no minimum cut-off marks for the interview and merit list
  of successfiil candidates to be prepared on the basis of total marks
  obtained in the written examination and viva-voce - Appointment
  of candidates as per merit list drawn by Administrative Committee
  on the basis of minimum marks in viva-voce - Challenge to. on
  ground that introduction of requirement of the minimum marks for
E
  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 - Held: Matter referred to larger bench to be
  heard alongwith Tej Prakash case.
F
          Referring the matter to the larger Bench, the Court
         HELD: 1. The decision in K. Manjusree v. State of Andhra
  Pradesh and another squarely applies to the facts of this case.
  In that case, a Bench of three Judges of this Court held that
  "introduction of the requirement of the minimum marks for
G 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". (Para 4) (229-A; C-D)

H
                                   226
  SIVANANDAN C.T. & ORS. v. HIGH COURT OF KERALA                          227
                      & ORS.

         2. In the case ofTej Prakash Pathak and others v. Rajesthan A
High Court and others the Court has, however, specifically
doubted the correctness of Manjusree on the point whether
" .... changing the rules of the game after the game was played ....
is clearly impermissible" and has made a Reference to a larger
Bench for an authoritative pronouncement. It is also relevant in B
this context to note that in Salam Samarjeet Singh v. High Court
of Manipur At Imphal and Anr. 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. Hence, it is only appropriate to refer this matter also to
the larger bench to be heard along with Tej Prakash. [Para 5) C
 (229-E-G]
         K. Manjusree v. State of Andhra Pradesh and another
         (2008) 3 SCC 512 : (2008] 2 SCR 1025 ; Tej Prakash
         Pathak and others v. Rajas than High Court and ·others
         (2013) 4 SCC 540 ; Salam Samarjeet Singh v. High            D
         Court of Manipur At Imphal and Anr. (2016) 10 SCC
         484 : [2016) 9 SCR 771 - referred to.
                           Case ·Law Reference
         (2008) 2 SCR 1025         referred to          Para4
         (2013) 4 sec s40          referred to          Paras
                                                                     E
         [2016] 9 SCR 771          referred to          Paras

       CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No. 229 of2017.
       Under Article 32 of the Constitution oflndia
                                                                          F
                                 WITH
       W. P. (C) Nos. 232, 379 and 618 of2017.
       V. Giri, Jaideep Gupta, R. Basant, Amarendra Sharan, Dr. K. P.
Kylasanatha Pillay, Thomas P. Joseph, Sr. Advs., P. V. Dinesh,
Ms. Sindhu T. P., Rajendra Beniwal, Ms. Arushi Singh, Abhishekh Thakur,
Bineesh K., C. N. Sree Kumar, Amit Sharma, Raghenth Basant, Mithun        G
Verghis, Ms. Liz Mathew, T. G. Narayanan Nair, K. N. Madhusoodhanan,
Sajith. P. Warrier, Ms. Nazia Hasan, Mohd. Monish, Ms. Rajitha Th, P.
A. Noor Muhamed, Giffara S., G. Prakash, Jishnu M. L., Ms. Priyanka
Prakash, Mrs. Beena Prakash, Vijay Shankar V. L, Prasanth P, Nebil
Nizar, Ranjith K. C, Advs. for the appearing parties.
                                                                          H
228             SUPREME COURT REPORTS                         [2017] 13 S.C.R.


A           The following Order of the Court was passed:
                                    ORDER
             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
B     written exan)ination 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 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
c     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
D           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 20 I 3
      and 2014 without cut-off marks for the viva-voce. As per the Resolution
      dated 13. 122012, after publishing the result of the examination, the
 E    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 the
 F
      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
 G    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.
H
    SIVANANDAN C.T. & ORS. v. HIGH COURT OF KERALA                                229
                        &ORS.

       4. Though several other contentions are raised by both sides, we A
find that the decision in K, Manjusree v. State of Andhra Pradesh
and another', 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
                                                                             B
noticed this, a sub-committee was appointed to make the arithmetical
correction to scale down the marks in the written 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 C
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 D
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 E
and others' has, however, specifically doubted the correctness of
 Manjusree (supra) on the point whether " .... changing the rules of
the game after the game was 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
                                                                             F
Samarjeet Singh v. High Court of Manipur At Imphal and Anr)
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.            G

Ankit Gyan                                      Matter referred to larger Bench

1
 (2008)3 sec s12
2(2013)4SCC540

'(2016) 10 sec 484