SUSHIL KUMAR PANDEY & ORS. versus HIGH COURT OF JHARKHAND & ANR.
[2024] 2 S.C.R. 217, Supreme Court of India, 2024
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
[2024] 2 S.C.R. 217 : 2024 INSC 97
Sushil Kumar Pandey & Ors. 
v. 
The High Court of Jharkhand & Anr.
 (Writ Petition (Civil) No. 753 of 2023)
01 February 2024
[Aniruddha Bose and Sanjay Kumar, JJ.]
Issue for Consideration
High Court whether justified in altering the selection criteria after the 
performance of individual candidates was assessed for selection 
to the posts of District Judge Cadre in the State of Jharkhand.
Headnotes
Jharkhand Superior Judicial Service (Recruitment, 
Appointment and Conditions of Service) Rules, 2001 – rr.14, 
18, 21 – Jharkhand Superior Judicial Service (Recruitment, 
Appointment and Conditions of Service) Regulation, 2017 – 
Selection to the posts of District Judge Cadre in the State 
of Jharkhand – Alteration in  selection criteria after the 
performance of individual candidates was assessed – Higher 
aggregate marks prescribed in deviation from the statutory 
rules – By way of Full Court Resolution, High Court introduced 
securing 50 per cent marks in aggregate (combination of 
marks obtained in main examination and viva-voce) as the 
qualifying criteria for being recommended to the posts of 
District Judge – Impermissibility:
Held: Under r.18, the task of setting cut-off marks was vested 
in the High Court but this was to be done before the start of the 
examination – Stipulations contained in r.21 for making the select 
list were breached by the High Court administration in adopting 
the impugned resolution – Plea that applying a higher
aggregate 
mark was not barred under the Rules or Regulations, not accepted 
– The very expression “aggregate” means combination of two or 
more processes and in the event the procedure for arriving at the 
aggregate has been laid down in the applicable Rules, a separate 
criteria cannot be carved out to enable change in the manner 
of making the aggregate marks – If the High Court is permitted 
to alter the selection criteria after the performance of individual
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candidates is assessed, that would constitute alteration of the laid 
down Rules – Plea of the High Court administration that r.14 permits 
them to alter the selection criteria after the selection process is 
concluded and marks are declared is not proper exposition of the 
said provision – r.14 empowers the High Court administration in 
specific cases to reassess the suitability and eligibility of a candidate 
in a special situation by calling for additional documents –High 
Court administration cannot take aid of this Rule to take a blanket 
decision for making departure from the selection criteria specified 
in the 2001 Rules – High Court to make recommendation for 
those candidates who were successful as per the merit or select 
list, for filing up the subsisting notified vacancies without applying 
the Full Court Resolution that requires each candidate to get 50 
per cent aggregate marks – The part of the Full Court Resolution 
of the Jharkhand High Court by which it was decided that only 
those candidates who secured at least 50% marks in aggregate 
shall be qualified for appointment to the post of District Judge is 
quashed [Paras 20, 22-24]
Service jurisprudence – Change in the rule midway – Discussed.
Case Law Cited
Sivanandan C.T. & Ors. v. High Court of Kerala, [2023] 
11 SCR 674 : (2023) INSC 709 – followed. 
State of Haryana v. Subash Chander Marwaha & Ors., 
[1974] 1 SCR 165 : (1974) 3 SCC 220; Ram Sharan
Maurya and Ors. v. State of U.P. and Ors., [2020] 12 
SCR 466 : (2021) 15 SCC 401 – distinguished.
K.Manjusree v. State of Andhra Pradesh and Anr., [2008] 
2 SCR 1025 : (2008) 3 SCC 512; Hemani Malhotra 
v. High Court of Delhi, [2008] 5 SCR 1066 : (2008) 7 
SCC 11 – relied on. 
Tej Prakash Pathak & Ors. v. Rajasthan High Court and 
Others: (2013) 4 SCC 540 – referred to. 
List of Acts
Jharkhand Superior Judicial Service (Recruitment, Appointment and 
Conditions of Service) Rules, 2001; Jharkhand Superior Judicial 
Service (Recruitment, Appointment and Conditions of Service) 
Regulation, 2017; Constitution of India.
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
List of Keywords
District Judge Cadre; Altering the selection criteria; Higher 
aggregate mark; Qualifying criteria; Cut-off marks; Departure from 
selection criteria.
Case Arising From
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.753 of 2023
(Under Article 32 of The Constitution of India)
With
Writ Petition (Civil) No.921 of 2023
Appearances for Parties
Arunabh Chowdhury, Sr. Adv./A.A.G., Vinay Navare, K 
Karpagavinagagam, Dushyant Dave, Ms. Meenakshi Arora, Jayant 
K. Sud, Jaideep Gupta, Sr. Advs., Mahesh Thakur, Ms. Neha Singh, 
Mrs. Geetanjali Bedi, Ranvijay Singh Chandel, Shivamm Sharrma, 
Ms. Shivani, Prithvi Pal, Sanjay Kumar Yadav, Manoj Jain, Ms. 
Kiran Bhardwaj, C Aravind, K V Mathu Kumar, Ms. Geeta Verma, 
Syed Imtiyaz, Usman Khan, Ms. Madhurima Sarangi, Naeem 
Ilyas, Towseef Ahmad Dar, Danish Zubair Khan, Dr. Lokendra 
Malik, Surya Nath Pandey, Durga Dutt, Rohit Priyadarshi, Upendra 
Narayan Mishra, Satyendra Kumar Mishra, Ms. Rashi Verma, 
Somesh Kumar Dubey, Kartik Jasra, Prannit Stefano, Shivam 
Nagpal, Ms. Susmita Lal, Ms. Racheeta Chawla, Kamakhya 
Srivastava, Rajiv Shanker Dvivedi, Ms. Tulika Mukherjee, Karma 
Dorjee, Dechen W. Lachungpa, Beenu Sharma, Venkat Narayan, 
Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
In these two writ petitions, we are to address the legality of the 
selection process of District Judge Cadre in the
State of Jharkhand 
initiated in the year 2022. An advertisement bearing No. 01/2022 
was published on 24th March, 2022, inviting applications from the 
eligible candidates for the said posts. The vacancies specified in 
the advertisement itself were twenty-two. Appointment procedure to
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the said posts is guided by the Jharkhand Superior Judicial Service 
(Recruitment, Appointment and Conditions of Service) Rules, 2001 
(‘the 2001 Rules’). In the year 2017, the Jharkhand Superior Judicial 
Service (Recruitment, Appointment and Conditions of Service) 
Regulation, 2017 (“the 2017 Regulation”) was framed in terms of 
Rule 11 and Rule 30 of the 2001 Rules for this purpose.
2.	
On the basis of cut-off marks specified in the advertisement as also 
in the 2001 Rules, select list of sixty-six persons was published, 
applying the 1:3 ratio as there were twenty-two published vacancies. 
3.	
The High Court on its administrative side, however, recommended 
only thirteen candidates for appointment though the vacancies 
declared were twenty-two. A resolution to that effect was taken in 
a Full Court meeting held on 23.03.2023. We shall quote relevant 
provisions from the 2001 Rules in subsequent paragraphs of this 
judgment along with the relevant extracts from the advertisement. 
In the advertisement, the relevant portions for adjudication of the 
subject dispute were contained under the heading ‘Eligibility and 
Conditions’. The following criteria for selection was specified therein:-
“Preliminary Entrance Test
(1)	 The Preliminary Entrance Test shall consist. Of:-
i.	
General English
ii.	
General Knowledge(including Current Affairs). 
iii.	
C.P.C.
iv.	
Cr.P.C.
v.	
Evidence Act
vi.	
Law of Contract.
vii.	 IPC 
(2)	 The
Preliminary Entrance Test shall be of 100 in aggregate
(3)	 Duration of Preliminary Entrance Test shall be of two hours.
(4)	 There shall be negative marking of -1 mark (minus one)for 
each wrong answer.
Main Examination 
(1)	 The Main Examination shall consist of:-

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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
Paper -I 
Part- I Language (English)
50 Marks
(Essay, Precis, Preposition and Comprehension etc,) 
Part- II 
(i)	
Procedural Law (Cr.P.C. & C.P.C) 
(ii)	
Law of Evidence
(iii)	 Law of Limitation
50 Marks 	
Paper- II 
Substantive Law 
100 Marks 
(i)	
Constitution of India 
(ii)	
Indian Penal Code
(iii)	 Law of Contract
(iv)	 Sale of Goods Act
(v)	
Transfer of Property Act
(vi)	 Negotiable Instrument Act
(vii)	 Law relating to Motor Vehicle Accident Claim
(viii)	 Jurisprudence.
(ix)	 Santhal Pargana Tenancy Act
(x)	
Chhotanagpur Tenancy Act
(xi)	 Protection of Children from Sexual Offences Act (pocso)
(xii)	 Prevention Of Corruption Act (xiii) SC & ST Act
(xiv)	Electricity Act
(xv)	 Narcotic Drugs and Psychotropic Substances Act (NDPS 
Act)
(2)	 Examination shall be held in two sittings of three hours duration 
for each paper.
Viva-Voce Test
(1)	 There shall be Viva-Voce Test of 40 marks.
(2)	 The marks obtained in Viva-Voce Test shall be added to 
the marks obtained in Main Examination and the merit list 
shall be prepared accordingly.
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(3)	 No candidate irrespective of the marks obtained by him 
in the Main Examination, shall be eligible for selection 
for appointment, if he obtains less than 20 marks out of 
aggregate of 40 in the Viva-Voce. Test.
Note:- Every differently abled candidate will be allowed 
“compensatory time” of 20 minutes for each hour of written 
examination.”
4.	
So far as the selection process involved in these proceedings is 
concerned, no preliminary entrance test was held, but that question 
is not in controversy before us. The main examination comprising 
of Paper-I and Paper-II carried a total of 200 marks. As per the 
advertisement, the marks allocated for viva-voce test was 40 as would 
appear from the preceding paragraph. A candidate irrespective of 
the marks obtained by him in the main examination was required to 
get at least 20 marks out of the aggregate 40 in the viva-voce test.
5.	
As per the 2001 Rules, the provisions relevant are Rules 14, 18, 21 
and 22. These Rules read:-
“14. Notwithstanding anything contained in the foregoing 
Rule, it shall be open to the High Court to require the 
candidate at any stage of the selection process or 
thereafter, to furnish any such additional proof or to produce 
any document with respect to any matter relating to his 
suitability and/or eligibility as the High Court may deem 
necessary.
18. Before the start of the examination, the High Court 
may fix the minimum qualifying marks in
the Preliminary 
Written Entrance Test and thereafter minimum qualifying 
marks in the main examination. Based on such minimum 
qualifying marks, the High Court may decide to call for 
viva-voce such number of candidates, in order of merit 
in written examination, depending upon the number of 
vacancies available as it may appropriately decide:
Provided that in the case of candidates belonging to 
scheduled castes and scheduled tribes and candidates 
belonging to other reserved categories, such minimum 
qualifying marks may not be higher than 45% of the total 
aggregate marks :
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
Provided also that in determining the suitability of a 
particular candidate based on both the minimum qualifying 
marks as well as in order of merit, the total marks obtained 
in the examination as a whole and the marks obtained 
in any individual paper, both shall also be taken into 
consideration, depending upon any guidelines that the 
High Court may issue in this behalf in the Regulations to 
be framed for this purpose.
21. A candidate, irrespective of the marks obtained by him 
in the Preliminary Written Entrance Examination and/or 
the Main Written Examination shall not be qualified to be 
appointed unless he obtains a minimum of 30% marks in 
the viva-voce test. The marks obtained at the viva voce 
test shall then be added to the marks obtained by the 
candidate at the main written examination. The names of 
the candidates will then be tabulated and arranged in order 
of merit. If two or more candidates obtain equal marks in 
the aggregate, the order shall be determined in accordance 
with the marks secured at the main written examination. 
If the marks secured at the main written examination of 
the candidates also are found equal then the order shall 
be decided in accordance with the marks obtained in the 
Preliminary Written Entrance Test. From the list of candidates 
so arranged in order of merit the High Court shall prepare a 
select list and have it duly notified in a manner
as prescribed 
in the regulations. Such select list shall be valid for a period 
of one year from the date of being notified.
22. From out of the aforesaid select list, depending upon the 
number of vacancies available or those required to be filled 
up, the High Court shall recommend to the Government 
the names for appointment as Additional District Judge.”
6.	
There appears to be one inconsistency in relation to minimum marks 
prescribed between the content of Rule 21 of the said Rules and 
paragraph 12 of the 2017 Regulation. The said paragraph of the 
Regulation stipulates:-
“(12) No candidate irrespective of the marks obtained by 
him in the Main Examination, shall be eligible for selection 
for appointment, if he obtains less than 20 marks out of 
aggregate of 40 in the Viva-Voce Test.”
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7.	
We have already quoted Rule 21 of the 2001 Rules where minimum of 
30% marks in the viva-voce has been prescribed as the qualification 
criteria. But that question also does not arise in the present two writ 
petitions as none of the parties before us has raised this point. We 
also find it to be a safer course to go by the provisions of paragraph 
12 of the 2017 Regulation, as the advertisement also prescribed 
minimum 20 marks out of aggregate of 40 in the Viva Voce test. 
8.	
Admitted position is that the 9 candidates who have been left out 
from being recommended for appointment, had found place in the 
select list in terms of Rule 21 of the 2001 Rules.
9.	
In Writ Petition (Civil) No. 753 of 2023, altogether seven petitioners 
have joined in questioning the exclusion of the 9 candidates by 
the Full Court Resolution. The said resolution introduces securing 
50 per cent marks in aggregate (combination of marks obtained in 
main examination and viva-voce) as the qualifying criteria for being 
recommended to the said posts. This resolution against Agenda 
No. 1 of the Full Court Meeting held on 23rd March, 2023 records:-
SL.No.
AGENDA
RESOLUTIONS
1.
To consider the matter 
o v e r  r e c r u i t m e n t 
process of District 
J u d g e  [ U / r  4 ( a ) 
directly from Bar] with 
regard to Final Result 
against advertisement 
no.01/2022/Apptt.
Considered.
The Full Court resolves to approve 
the final result list of 63
Candidates 
who have appeared for viva voce 
(list enclosed with this resolution and 
marked at Flag “X”)
Further, Full Court observes that 
candidates at Sl.No.7 & 8 have 
got the same total marks, but on 
careful consideration it transpires that 
candidate at Sl.No.8 has got higher 
marks in written examination. Hence 
in view of Rule 21 of Jharkhand 
Superior Judicial (Recruitment, 
Appointment and Conditions of 
Service) Rules, 2001, candidate at 
Sl.No.8 is placed at higher place/
rank.
[2024] 2 S.C.R. 
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
Further after due deliberation, 
keeping in view the responsibility that 
will be vested upon the candidates 
who qualify for appointment of 
District Judges and to maintain the 
high standard of Superior Judicial 
Services, the Full Court resolves 
that only those candidates who 
have secured at least 50% marks 
in aggregate, shall be qualified for 
appointment to post of District Judge.
It is hereby resolved to recommend 
the names of following 13 top 
(merit wise) candidates to the 
State Government for issuance of 
necessary notification/s for their 
appointment to the post of District 
Judge after completing/undertaking 
the investigation/enquiry relating to 
the candidates credentials as per 
Rule 23 & 24 of Jharkhand Superior 
Judicial (Recruitment, Appointment 
and Conditions of Service) Rules, 
2001:
S.No.
Roll No.
Name
1
10369
NAMITA CHANDRA
2
10956
SHWETA DHINGRA
3
10343
PARAS KUMAR SINHA
4
10388
KUMAR SAKET
5
10519
SHIVNATH TRIPATHI
6
10218
BHUPESH KUMAR
7
11577
AISHA KHAN
8
10294
BHANU PRATAP SINGH
9
10592
NEETI KUMAR
10
10371
PRACHI MISHRA
11
10109
PAWAN KUMAR
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12
11061
RAJESH KUMAR BAGGA
13
10587
NARANJAN SINGH
Registrar General is directed to upload the names of above mentioned 
13 successful candidates to the official website of this Court.
10.	 This Resolution has been disclosed in the reply to the Rejoinder 
affidavit filed on behalf of the High Court of Jharkhand, affirmed by 
Registrar General of that Court.
11.	 There are two impleadment applications registered as I.A. No. 
173928 of 2023 taken out by ‘Purnendu Sharan’ and I.A. No. 10383 
of 2024 taken out by ‘Ashutosh Kumar Pandey’, both of them being 
aggrieved by the procedure adopted by the Full Court.
12.	 Another set of candidates have filed the second writ petition registered 
as Writ Petition (Civil) No. 921 of 2023. In this writ petition, altogether 
five candidates have sought substantially the same relief asked for 
in the Writ Petition (Civil) No. 753 of 2023. 
13.	 The petitioners have been represented before us by Mr. Dushyant 
Dave, Mr. Vinay Navare and Mr. Jayant K. Sud, learned senior 
counsel whereas the High Court of Jharkhand has been represented 
by Mr. Jaideep Gupta, learned senior counsel. Mr. Rajiv Shanker 
Dvivedi, learned Standing Counsel for the State of Jharkhand has 
appeared for the State. State has taken a non-committal stand before 
us. Counter affidavit has been filed by the State in which also no 
definitive stand has been taken on the legality of the Resolution 
in the Full Court meeting
of the High Court. It has however been 
submitted by the State that certain amendments need to be carried 
out in Rule 21 of the 2001 Rules. That plea does not come within 
the scope of the present proceedings.
14.	 The petitioners’ main case rests on two planks. First one is that the 
decision of the Full Court on the administrative side goes contrary 
to the Recruitment Rules, Regulations and the Terms contained in 
the advertisement. The second plank of the submissions advanced 
by the petitioners is that in any event, after the performance of each 
of the candidate is known and the marks obtained by them in the 
two forms of the examination are disclosed, it was impermissible 
for the High Court Administration to introduce fresh cut-off marks. 
On this point, the authority relied upon by Mr. Dave is a judgment 
of a Constitution Bench comprising of five Hon’ble Judges of this
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
Court in the case of Sivanandan C.T. & Ors. Vs. High Court of 
Kerala [(2023) INSC 709)] decided on 12th July, 2023. This judgment 
narrates the factual background of that case in paragraph ‘7’ thereof 
and the ratio of this decision would emerge from paragraphs ‘52’ to 
‘57’ of the said judgment. These passages from the judgment are 
quoted below:-
“7. On 27 February 2017, after the viva-voce was 
conducted, the Administrative Committee of the High 
Court passed a resolution by which it decided to apply 
the same minimum cut-off marks which were prescribed 
for th e written examination as a qualifying criterion in the 
viva-voce. In coming to this conclusion, the Administrative 
Committee was of the view that since appointments 
were being made to the Higher Judicial Service, it was 
necessary to select candidates with a requisite personality 
and knowledge which could be ensured by prescribing 
a cut-off for the viva-voce in terms similar to the cut-off 
which was prescribed for the written examination. On 6 
March 2017, the Full Court of the High Court of Kerala 
approved the resolution of the Administrative Committee. 
The final merit list of the successful candidates was also 
published on the same day.

x

x
x
52. The statutory rule coupled with the scheme of 
examination and the 2015 examination notification would 
have generated an expectation in the petitioners that 
the merit list of selected candidates will be drawn on 
the basis of the aggregate of total marks received in the 
written examination and the viva voce. Moreover, the 
petitioners would have expected no minimum cutoff for 
the viva voce in view of the express stipulation in the 
scheme of examination. Both the above expectations of 
the petitioners are legitimate as they are based on the 
sanction of statutory rules, scheme of examination, and 
the 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.
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ii. Whether the High Court has acted unlawfully in relation 
to its commitment?
53. 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.
54. 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 principles of good administration 
while performing its administrative duties. The principles 
of good administration require that the public authorities 
should act in a fair, consistent, and predictable manner.
55. The High Court submitted that frustration of the 
petitioner’s substantive legitimate expectation was in larger 
public interest – selecting suitable candidates with practical 
wisdom for the post of District Judges. Indeed, it is in the 
public interest that we have
suitable candidates serving 
in the Indian judiciary. However, the criteria for selecting 
suitable candidates are laid down in the statutory rules. As 
noted above, the High Court did amend the 1961 Rules 
in 2017 to introduce a minimum cut-off mark for the viva 
voce. The amended Rule 2(c) is extracted below:
“2. Method of appointment – (1) Appointment to the service 
shall be made as follows:
[…]
(c) Twenty five percent of the posts in the service shall 
be filled up by direct recruitment from the members of the 
Bar. The recruitment shall be on the basis of a competitive
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
examination consisting of a written examination and a viva 
voce. […] Maximum marks for viva voce shall be 50. The 
General and Other Backward Classes candidates shall 
secure a minimum of 40% marks and Scheduled Caste/
Scheduled Tribe candidate shall secure a minimum of 
35% marks for passing the viva voce. The merit list of the 
selected candidates shall be prepared on the basis of the 
aggregate marks secured by the candidate in the written 
examination and viva voce.”
(emphasis supplied)
56. Under the unamended 1961 Rules, the High Court was 
expected to draw up the merit list of selected candidates 
based on the aggregate marks secured by the candidates 
in the written examination and the viva voce, without any 
requirement of a minimum cut-off for the viva voce. Thus, 
the decision of the Administrative Committee to depart 
from the expected course of preparing the merit list of the 
selected candidates is contrary to the unamended 1961 
Rules. It is also important to highlight that the requirement 
of a minimum cutoff for the viva voce was introduced 
after the viva voce was conducted. It is manifest that the 
petitioners had no notice that such a requirement would 
be introduced for the viva voce examination. We are of 
the opinion that the decision of High Court is unfair to the 
petitioners and amounts to an arbitrary exercise of power.
57. 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.”
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15.	 There is an earlier judgment of this Court comprising of three Hon’ble 
Judges in the case of K. Manjusree -vs- State of Andhra Pradesh 
and Anr. [(2008) 3 SCC 512] in which the change of recruitment 
criteria mid-way through the selection process has been held to 
be impermissible. We quote below paragraphs ‘27’ and ‘36’ of that 
judgment from the said report:-
“27. But what could not have been done was the second 
change, by introduction of the criterion of minimum marks 
for the interview. The minimum marks for interview had 
never been adopted by the Andhra Pradesh High Court 
earlier for selection of District & Sessions Judges, (Grade 
II). In regard to the present selection, the Administrative 
Committee merely adopted the previous procedure in 
vogue. The previous procedure as stated above was to 
apply minimum marks only for written examination and not 
for the oral examination. We have referred to the proper 
interpretation of the earlier Resolutions dated 24.7.2001 and 
21.2.2002 and held that what was adopted on 30.11.2004 
was only minimum marks for written examination and not for 
the interviews. Therefore, introduction of the requirement 
of 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. We are fortified in this view
by several 
decisions of this Court. It is sufficient to refer to three of 
them - P. K. Ramachandra Iyer v. Union of India1, Umesh 
Chandra Shukla v. Union of India2, and Durgacharan Misra 
v. State of Orissa3.

x

x

x
36. The Full Court however, introduced a new requirement 
as to minimum marks in the interview by an interpretative 
process which is not warranted and which is at variance 
with the interpretation adopted while implementing the 
1	
(1984) 2 SCC 141: 1984 SCC (L &S) 214
2	
(1985) 3 SCC 721: 1985 SCC (L&S) 919
3	
(1987) 4 SCC 646: 1988 SCC (L & S) 36: (1987) 5 ATC 148
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
current selection process and the earlier selections. As 
the Full Court approved the Resolution dated 30.11.2004 
of the Administrative Committee and also decided to 
retain the entire process of selection consisting of written 
examination and interviews it could not have introduced 
a new requirement of minimum marks in interviews, 
which had the effect of eliminating candidates, who would 
otherwise be eligible and suitable for selection. Therefore, 
we hold that the action of Full Court in revising the merit list 
by adopting a minimum percentage of marks for interviews 
was impermissible.” 
16.	 The same view has later been taken by a Coordinate Bench of this 
Court in the case of Hemani Malhotra -vs- High Court of Delhi 
[(2008) 7 SCC 11]. In a later decision, Tej Prakash Pathak & Ors. 
-vs- Rajasthan High Court and Others [(2013) 4 SCC 540], a three 
Judge Bench of this Court expressed a view which is different from 
that taken in the case of K. Manjusree (supra) and referred the 
matter to the Hon’ble the Chief Justice of India for being considered 
by a larger Bench. There is no decision yet from a larger Bench and 
until the principle laid down in the case of K. Manjusree (supra) is 
overruled by a larger Bench, we shall continue to be guided by the 
same as “no change in the rule midway” dictum has become an 
integral part of the service jurisprudence. 
17.	 The next point
urged by Mr. Gupta is that the ratio of the three 
judgments on which reliance has been placed by Mr. Dave would 
not apply in the facts of the present case. His argument is that in 
those three authorities, the marking in viva-voce was the subject 
of dispute whereas in the present writ petitions, it is on aggregate 
marking that the High Court administration has raised the bar. One 
of the authorities on which Mr. Gupta has relied on is State of 
Haryana -vs- Subash Chander Marwaha & Ors. [(1974) 3 SCC 
220]. In paragraphs 7 and 12 of the said report, it has been held and 
observed by a Bench of two Hon’ble Judges of this Court:-
“7. In the present case it appears that about 40 candidates 
had passed the examination with the minimum score of 
45%. Their names were published in the Government 
Gazette as required by Rule 10(1) already referred to. It 
is not disputed that the mere entry in this list of the name
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of candidate does not give him the right to be appointed 
The advertisement that there are 15 vacancies to be 
filled does not also give him a right to be appointed. It 
may happen that the Government for financial or other 
administrative reasons may not fill up any vacancies. In 
such a case the candidates, even the first in the list, will 
not have a right to be appointed. The list is merely to help 
the State Government in making the appointments showing 
which candidates have the minimum qualifications under 
the Rules. The stage for selection for appointment comes 
thereafter, and it is not disputed that under the Constitution 
it is the State Government alone which can make the 
appointments. The High Court does not come into the 
picture for recommending any particular candidate. After 
the State Government have taken a decision as to which 
of the candidates in accordance with the list should be 
appointed, the list of selected candidates for appointment 
is forwarded to the High Court then will have to enter 
such candidates on a Register maintained by it. When 
vacancies are to be filled the High Court will send in the 
names of the candidates in accordance with the select 
list and in the order they have been placed in that list for 
appointment in the vacancies. The High Court, therefore, 
plays no part except to suggest to the Government who 
in accordance with the select list is to be appointed and 
in a
particular vacancy. It appears that in the present case 
the Public Service Commission had sent up the rolls of 
the first 15 candidates because the Commission had been 
informed that there are 15 vacancies. The High Court 
also in its routine course had sent up the first 15 names 
to the Government for appointment. Thereupon the Chief 
Secretary to Government, Haryana wrote to the Registrar 
of the High Court on May 4, 1971 as follows:
“I am directed to refer to Haryana Government endst 
No. 1678-1 GS, II—71/3802, dated April 22, 1971, on 
the subject noted above, and to say that after careful 
consideration of the recommendations of the Punjab 
and Haryana High Court for appointment of first fifteen 
candidates to the Haryana Civil Service (Judicial Branch),
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
the State Government have taken the view that it would be 
appropriate that only the first seven candidates should be 
appointed to the Haryana Civil Service (Judicial Branch) 
and a notification has been issued accordingly. The 
reason is that in the opinion of the State Government, 
only those candidates who obtained 55% or more marks 
in the Haryana Civil Service (Judicial Branch) Examination, 
should be appointed as that will serve to maintain a 
minimum standard in the appointments to the Service. It 
may be mentioned that the last candidate appointed against 
un-reserved vacancies out of the merit list prepared on 
the basis of the Haryana Civil Service (Judicial Branch) 
Examination held in May 1969, secured 55.67% marks.
The State Government have also received information 
that the Punjab and Haryana High Court themselves 
recommended to the Punjab Government that in respect 
of P.C.S. (Judicial Branch) Examination held in 1970, 
candidates securing 55% marks or more should be 
appointed against un-reserved vacancies. Thus, the 
decision taken by Haryana Government is in line with 
the recommendations which the High Court made to the 
Punjab Government regarding recruitment to the P.C.S. 
(Judicial Branch) on the basis of the Examination held 
in 1970, and a similar policy in both the cases would be 
desirable for obvious reasons.”
12. It was, however, contended by Dr Singhvi on
behalf 
of the respondents that since Rule 8 of Part C makes 
candidates who obtained 45% or more in the competitive 
examination eligible for appointment, the State Government 
had no right to introduce a new rule by which they can 
restrict the appointments to only those who have scored not 
less than 55%. It is contended that the State Government 
have acted arbitrarily in fixing 55% as the minimum 
for selection and this is contrary to the rule referred to 
above. The argument has no force. Rule 8 is a step in the 
preparation of a list of eligible candidates with minimum 
qualifications who may be considered for appointment. 
The list is prepared in order of merit. The one higher in 
rank is deemed to be more meritorious than the one who
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is lower in rank. It could never be said that one who tops 
the list is equal in merit to the one who is at the bottom of 
the list. Except that they are all mentioned in one list, each 
one of them stands on a separate level of competence 
as compared with another. That is why Rule 10(ii), Part 
C speaks of “selection for appointment”. Even as there is 
no constraint on the State Government in respect of the 
number of appointments to be made, there is no constraint 
on the Government fixing a higher score of marks for the 
purpose of selection. In a case where appointments are 
made by selection from a number of eligible candidates 
it is open to the Government with a view to maintain 
high standards of competence to fix a score which is 
much higher than the one required for more eligibility. 
As shown in the letter of the Chief Secretary already 
referred to, they fixed a minimum of 55% for selection as 
they had done on a previous occasion. There is nothing 
arbitrary in fixing the score of 55% for the purpose of 
selection, because that was the view of the High Court 
also previously intimated to the Punjab Government on 
which the Haryana Government thought fit to act. That 
the Punjab Government later on fixed a lower score is no 
reason for the Haryana Government to change their mind. 
This is essentially a matter of administrative policy and if 
the Haryana State Government think that in the interest 
of judicial
competence persons securing less than 55% 
of marks in the competitive examination should not be 
selected for appointment, those who got less than 55% 
have no right to claim that the selections be made of also 
those candidates who obtained less than the minimum 
fixed by the State Government. In our view the High Court 
was in error in thinking that the State Government had 
somehow contravened Rule 8 of Part C.”
18.	 Mr. Gupta has also cited the case of Ram Sharan Maurya and Ors. 
Vs. State of U.P. and Ors. [(2021) 15 SCC 401]. It has been held 
in this judgment:-
“72. In terms of Rule 2(1)(x) of the 1981 Rules, qualifying 
marks of ATRE are such minimum marks as may be 
determined “from time to time” by the Government.
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
Clause (c) of Rule 14 of the 1981 Rules lays down 
that a candidate must have “passed Assistant Teacher 
Recruitment Examination conducted by the Government”. 
Thus, one of the basic requirements for being considered 
to be appointed as an Assistant Teacher under the 1981 
Rules is passing of ATRE with such minimum marks as 
may be determined by the Government. Unlike para 7 of 
the Guidelines for ATRE 2018 which had spelt out that a 
candidate must secure minimum of 45% or 40% marks 
(for “General” and “Reserved” categories respectively) for 
passing ATRE 2018, no such stipulation was available in 
G.O. dated 1-12-2018 notifying ATRE 2019. Though, the 
minimum qualifying marks were set out in the Guidelines 
for ATRE 2018, it is not the requirement of the 1981 Rules 
that such stipulation must be part of the instrument notifying 
ATRE. By very nature of entrustment, the Government 
is empowered to lay down minimum marks “from time 
to time”. If this power is taken to be conditioned with 
the requirement that the stipulation must be part of the 
instrument notifying the examination, then there was no 
such stipulation for ATRE 2019. Such reading of the rules 
will lead to somewhat illogical consequences. On one hand, 
the relevant Rule requires passing of ATRE while, on the 
other hand, there would be no minimum qualifying marks 
prescribed. A reasonable construction on the relevant 
rules
would therefore imply that the Government must 
be said to be having power to lay down such minimum 
qualifying marks not exactly alongside instrument notifying 
the examination but at such other reasonable time as well. 
In that case, the further question would be at what stage 
can such minimum qualifying marks be determined and 
whether by necessity such minimum qualifying marks must 
be declared well before the examination.
73.K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 
SCC 512 : (2008) 1 SCC (L&S) 841] and Hemani Malhotra 
[Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11 
: (2008) 2 SCC (L&S) 203] were the cases which pertained 
to selections undertaken to fill up posts in judicial service. 
In these cases, no minimum qualifying marks in interview
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were required and the merit list was to be determined going 
by the aggregate of marks secured by a candidate in the 
written examination and the oral examination. By virtue 
of stipulation of minimum qualifying marks for interview, 
certain candidates, who otherwise, going by their aggregate 
would have been in zone of selection, found themselves 
to be disqualified. The stipulation of minimum qualifying 
marks having come for the first time and after the selection 
process was underway or through, this Court found such 
exercise to be impermissible.
74. These were cases where, to begin with, there was no 
stipulation of any minimum qualifying marks for interview. 
On the other hand, in the present case, the requirement 
in terms of Rule 2(1)(x) read with Rule 14 is that the 
minimum qualifying marks as stipulated by the Government 
must be obtained by a candidate to be considered eligible 
for selection as Assistant Teacher. It was thus always 
contemplated that there would be some minimum qualifying 
marks. What was done by the Government by virtue of its 
orders dated 7-1-2019 was to fix the quantum or number 
of such minimum qualifying marks. Therefore, unlike the 
cases covered by the decision of this Court in K. Manjusree 
[K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 
1 SCC (L&S) 841], where a candidate could reasonably 
assume that there was no stipulation regarding minimum 
qualifying marks for
interview, and that the aggregate of 
marks in written and oral examination must constitute 
the basis on which merit would be determined, no such 
situation was present in the instant case. The candidate 
had to pass ATRE 2019 and he must be taken to have 
known that there would be fixation of some minimum 
qualifying marks for clearing ATRE 2019.
75. Therefore, there is fundamental distinction between 
the principle laid down in K. Manjusree [K. Manjusree v. 
State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 
841] and followed in Hemani Malhotra [Hemani Malhotra 
v. High Court of Delhi, (2008) 7 SCC 11 : (2008) 2 SCC 
(L&S) 203] on one hand and the situation in the present 
case on the other.
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
76. We are then left with the question whether prescription 
of such minimum qualifying marks by order dated 7-1-
2019 must be set aside merely because such prescription 
was done after the examination was conducted. At this 
juncture, it may be relevant to note that the basic prayer 
made in the leading writ petition before the Single Judge 
was to set aside the order dated 7-1-2019. What could 
then entail as a consequence is that there would be no 
minimum qualifying marks for ATRE 2019, which would run 
counter to the mandate of Rule 2(1)(x) read with clause 
(c) of Rule 14. It is precisely for this reason that what was 
submitted was that the same norm as was available for 
ATRE 2018 must be adopted for ATRE 2019. In order to 
lend force to this submission, it was argued that Shiksha 
Mitras who appeared in ATRE 2018 and ATRE 2019 formed 
a homogeneous class and, therefore, the norm that was 
available in ATRE 2018 must be applied. This argument, 
on the basis of homogeneity, has already been dealt with 
and rejected.
77. If the Government has the power to fix minimum 
qualifying marks “from time to time”, there is nothing in 
the Rules which can detract from the exercise of such 
power even after the examination is over, provided the 
exercise of such power is not actuated by any malice or 
ill will and is in furtherance of the object of finding the 
best available talent. In that
respect, the instant matter 
is fully covered by the decisions of this Court in MCD v. 
Surender Singh [MCD v. Surender Singh, (2019) 8 SCC 67 
: (2019) 2 SCC (L&S) 464] and Jharkhand Public Service 
Commission v. Manoj Kumar Gupta [Jharkhand Public 
Service Commission v. Manoj Kumar Gupta, (2019) 20 
SCC 178] . In the first case, the power entrusted under 
Clause 25 of the advertisement also provided similar 
discretion to the Selection Board to fix minimum qualifying 
marks for each category of vacancies. While construing 
the exercise of such power, it was found by this Court 
that it was done “to ensure the minimum standard of the 
teachers that would be recruited”. Similarly, in Jharkhand 
Public Service Commission [Jharkhand Public Service
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Commission v. Manoj Kumar Gupta, (2019) 20 SCC 178], 
the exercise of power after the examination in Paper III 
was over, was found to be correct and justified.
78. If the ultimate object is to select the best available 
talent and there is a power to fix the minimum qualifying 
marks, in keeping with the law laid down by this Court in 
State of Haryana v. Subash Chander Marwaha [State of 
Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 
: 1973 SCC (L&S) 488], State of U.P. v. Rafiquddin [State 
of U.P. v. Rafiquddin, 1987 Supp SCC 401 : 1988 SCC 
(L&S) 183], MCD v. Surender Singh [MCD v. Surender 
Singh, (2019) 8 SCC 67 : (2019) 2 SCC (L&S) 464] and 
Jharkhand Public Service Commission v. Manoj Kumar 
Gupta [Jharkhand Public Service Commission v. Manoj 
Kumar Gupta, (2019) 20 SCC 178], we do not find any 
illegality or impropriety in fixation of cut-off at 65-60% vide 
order dated 7-1-2019. The facts on record indicate that 
even with this cut-off the number of qualified candidates 
is more than twice the number of vacancies available. It 
must be accepted that after considering the nature and 
difficulty level of examination, the number of candidates 
who appeared, the authorities concerned have the requisite 
power to select a criteria which may enable getting the 
best available teachers. Such endeavour will certainly be 
consistent with the objectives under the RTE Act.
79. In the circumstances, we affirm the view
taken by the 
Division Bench of the High Court and conclude that in 
the present case, the fixation of cut-off at 65-60%, even 
after the examination was over, cannot be said to be 
impermissible. In our considered view, the Government 
was well within its rights to fix such cut-off.”
19.	 In these two writ petitions, we are not, however, only concerned with 
the “midway change of the Rule” Principle. But on that count also, 
the ratio of the decisions cited by Mr. Gupta are distinguishable. The 
three Judge Bench in Tej Prakash Pathak (supra) had referred to 
the judgment in the case of Subhas Chandra Marwaha (supra) to 
express doubt over correctness of the judgment in the case of K. 
Manjusree (supra). As we have already observed, the ratio of K.
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
Manjusree (supra) still holds the field. In the case of Ram Sharan 
Maurya (supra), the Rules guiding recruitment empowered the 
Government to stipulate qualifying marks of the particular selection 
process to be such minimum marks as may be determined from 
time to time by the Government. In this decision, the judgment itself 
takes note of the decisions of this Court in K. Manjusree (supra) 
and Hemani Malhotra (supra) and finds that the course for selection 
to the posts involved in that case was different from that which was 
found to be impermissible in K. Manjusree (supra) and Hemani 
Malhotra (supra).
20.	 We find from Rule 18 of the 2001 Rules, the task of setting cut-off 
marks has been vested in the High Court but this has to be done 
before the start of the examination. Thus, we are also dealing with 
a situation in which the High Court administration is seeking to 
deviate from the Rules guiding the selection process itself. We have 
considered the High Court’s reasoning for such deviation, but such 
departure from Statutory Rules is impermissible. We accept the 
High Court administration’s argument that a candidate being on the 
select list acquired no vested legal right for being appointed to the 
post in question. But if precluding a candidate from appointment is 
in violation of the recruitment rules without there being a finding on 
such candidate’s unsuitability, such an
action would fail the Article 
14 test and shall be held to be arbitrary. The reason behind the Full 
Court Resolution is that better candidates ought to be found. That 
is different from a candidate excluded from the appointment process 
being found to be unsuitable. 
21.	 Stipulations contained in Rule 21 of the 2001 Rules for making the 
select list were breached by the High Court administration in adopting 
the impugned resolution. The ratio of the decision in the case of 
Ram Sharan Maurya (supra) would not apply in the facts of this 
case and we have already discussed why we hold so. 
22.	 Mr. Gupta’s stand is that applying a higher aggregate mark is not 
barred under the said Rules or Regulations. We are, however, 
unable to accept this submission. The very expression “aggregate” 
means combination of two or more processes and in the event the 
procedure for arriving at the aggregate has been laid down in the 
applicable Rules, a separate criteria cannot be carved out to enable 
change in the manner of making the aggregate marks.
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23.	 So far as the ratio of the decision in the case of K. Manjusree 
(supra) is concerned, that authority deals with change of the Rules 
mid-way. In the case before us, in our opinion, if the High Court 
is permitted to alter the selection criteria after the performance of 
individual candidates is assessed, that would constitute alteration 
of the laid down Rules. We refer to paragraphs Nos. 14 and 15 of 
the judgment of the Constitution Bench in the case of Sivanandan 
C.T. (supra), which lays down the principle of law on this point. We 
reproduce below the said passages from this authority:-
“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 drawn up on the basis of the marks 
obtained in the aggregate in the written examination and 
the viva-voce; secondly, the scheme which was notified 
by the High Court on 13 December 2012 clearly specified 
that there would be no cut off marks in respect of the viva-
voce; thirdly, the notification of the High Court dated 30 
September 2015 clarified that the process of short listing 
which would be carried out
would be only on the basis of 
the length of practice of the members of the Bar, should 
the number of candidates be unduly large; and fourthly, 
the decision to prescribe cut off marks for the viva-voce 
was taken much after the viva-voce tests were conducted 
in the month of January 2017.
15. For the above reasons, we have come to the conclusion 
that the broader constitutional issue which has been referred 
in Tej Prakash Pathak (supra) would not merit decision on 
the facts of the present case. Clearly, the decision which was 
taken by the High Court was ultra vires Rule 2(c)(iii) as it 
stands. As a matter of fact, during the course of the hearing 
we have been apprised of the fact that the Rules have 
been subsequently amended in 2017 so as to prescribe a 
cut off of 35% marks in the viva-voce examination which 
however was not the prevailing legal position when the 
present process of selection was initiated on 30 September 
2015. The Administrative Committee of the High Court
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Sushil Kumar Pandey & Ors. v. The High Court of Jharkhand & Anr.
decided to impose a cut off for the viva-voce examination 
actuated by the bona fide reason of ensuring that candidates 
with requisite personality assume judicial office. However 
laudable that approach of the Administrative Committee 
may have been, such a change would be required to be 
brought in by a substantive amendment to the Rules which 
came in much later as noticed above. This is not a case 
where the rules or the scheme of the High Court were 
silent. Where the statutory rules are silent, they can be 
supplemented in a manner consistent with the object and 
spirit of the Rules by an administrative order.”
24.	 The ratio of this authority is squarely applicable in the facts of this 
case. Submission on behalf of the High Court administration that 
Rule 14 permits them to alter the selection criteria after the selection 
process is concluded and marks are declared is not proper exposition 
of the said provision. The said Rule, in our opinion, empowers the 
High Court administration in specific cases to reassess the suitability 
and eligibility of a candidate in a special situation by calling for 
additional documents. The High Court administration cannot take aid 
of this Rule to take a blanket decision for making departure from the 
selection criteria specified in the 2001 Rules. The content of Rule 
14 has the tenor of a verification process of an individual candidate 
in
assessing the suitability or eligibility.
25.	 We, accordingly, allow both the writ petitions by directing the High 
Court to make recommendation for those candidates who have been 
successful as per the merit or select list, for filing up the subsisting 
notified vacancies without applying the Full Court Resolution that 
requires each candidate to get 50 per cent aggregate marks. The 
part of the Full Court Resolution of the Jharkhand High Court dated 
23.03.2023 by which it was decided that only those candidates who 
have secured at least 50% marks in aggregate shall be qualified for 
appointment to the post of District Judge is quashed. 
26.	 We expect the exercise of recommendation in terms of this judgment 
to be completed as expeditiously as possible.
27.	 We do not find any reason to address the impleadment applications 
as this judgment will cover the entire recommendation process.
Headnotes prepared by: Divya Pandey
Result of the case: 
Writ petitions allowed.