SIVANANDAN C.T. & ORS. versus HIGH COURT OF KERALA & ORS.
[2017] 13 S.C.R. 226, Supreme Court of India, 2017
Outcome: Matter referred to larger bench
Segment: Ratio
A 
B 
c 
D 
E 
F 
[2017] 13 S.C.R. 226 
SIVANANDAN C.T. & ORS. 
v. 
HIGH COURT OF KERALA & ORS. 
(Writ Petition (Civil) No. 229 of2017) 
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 
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 
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 
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. 
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 
(2013) 4 sec s40 
[2016] 9 SCR 771 
referred to 
referred to 
referred to 
Para4 
Paras 
Paras 
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) 
No. 229 of2017. 
Under Article 32 of the Constitution oflndia 
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, 
E 
F 
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: 
B 
c 
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 
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 
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 
E 
F 
G 
H 
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 
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 
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.
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 
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 
B 
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 
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 
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. 
Ankit Gyan 
1(2008)3 sec s12 
2(2013)4SCC540 
'(2016) 10 sec 484 
Matter referred to larger Bench 
E 
F 
G