Curious Case Of Sivanandan C T VS High Court Of Kerala
The Supreme Court judgment in Sivanandan C T Vs. High Court of Kerala (Writ Petition (Civil) No 229 of 2017) has raised questions of seminal importance. An aggrieved person invests time and money in accessing courts including the Supreme Court to seek justice and relief. The Supreme Court or any other Courts are not orgnisations to do only post mortem exercise and give opinions but to give justice to the aggrieved persons.
FACTS OF THE CASE
By notification dated 30th September, 2015, Kerala High Court issued notification for appointment of District and Sessions Judges. The Examination consisted of written test and viva voce. There was not any stipulation of minimum marks in viva voice. In fact the scheme of the Recruitment clearly stated that there will no cut of marks in viva voce. In January 2017, viva voce was conducted. After conduct of the viva voce on 27th February, 2017, cut off marks was introduced by the Kerala High Court.
Due to introduction of cut off marks many of such candidates, whose aggregate marks were more than successful candidates, were not selected. They were not given job because some enlightened interview board were of view that they do not have appropriate personality to do job of District and Sessions Judge, although they were meritorius.
FINDINGS OF THE COURT
The Supreme Court found the same arbitrary and against the principle of legitimate expectation. The reasoning given by Supreme Court was sound. The Supreme Court observed that decision of the High Court to introduce cut off marks in viva voce as subsequent stage was unfair to petitioners and amounts to an arbitrary exercise of power. The Supreme Court noted that decision of the High Court failed to satisfy the test of consistency and predictability. The decision of application of cut off of viva voce frustrated substantive legitimate expectations of the Petitioners. The Court found that such course of action adopted by the High Court was violative of Article 14.
But the final order given by the Supreme Court is not consistent with its finding. The Supreme Court gave no material relief to the Petitioners. The Court noted that candidates who have been selected have been working as judges for six years. Unseating them would be contrary to public interest since they may have gained experience as judicial officers. Selected candidates are otherwise qualified for judicial post. Unseating them will be harsh and judiciary would lose the services of duly qualified candidates who have gained experience over last six years.
Most surprisingly the candidates who has filed their petition timely against arbitrary recruitment were left in lurch. Only relief was given to them was that having failed in judiciary examination will not reflect either on their merits or ability, which was in any case no material relief.
WHY FINAL ORDER OF THE SUPREME COURT CREATES CUROSITY ?
Firstly, unsuccessful candidates had approached the Supreme Court only in 2017. There were no dealy on the part of Petitioners in approaching the Court. The delay was on the part of the Supreme Court in determining the matter. The Candidates were refused relief for no wrongs committed by them.
Secondly, the work of the Supreme Court or any other Court is not to make only post mortem observations but to do justice and to grant relief to the aggrieved persons. If a Court has found that the Case of the Petitioner has merit, it should grant relief to the Petitioners.
Thirdly, if the recruitment process was illegal and arbitrary and in violation of the Article 14, responsibility of some persons had to be fixed, which was not done in this case. The judgment is in nature of sermon and not determination.
Fourthly, Many recruitment bodies have this fascination with “viva voce” which is strictu sensu not an examination as same or similar questions are not asked to the candidates. Such boards suffers from “white man’s burden” syndrome, who think they know all. By its very nature, no viva voce can be scientific. The Supreme Court in Ajay Hasia case has far back in 1980 has held that viva voce is not a perfect test and its weightage should be limited to 15%. In Ajay Hasia the Supreme Court has recommended to use tape recorder in interview. But as yet although Interview Board wants to enjoy veto power , interview is conducted in intense secrecy. Recruitment body like UPSC even do not disclose name of members of Interview Board and gets even the watch of a candidate removed before entering in the Interview Room. There are many cases wherein the Interview Boards have used this veto power to alter the merit list.
Time has come when Parliament should abolish interview in all public recruitments. Post recruitment interview should be conducted and the enlightened members of the boards should be given responsibility to remove any deficiency in personality through training.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.
Sir,
Excellent post. Even after this judgment, The Kerala high Court has published next notification for the examination of lower court judiciary with the same viva voce with cut off marks. This is to continue facilitating nepotism. Many students with good marks in the main examination are kicked out in the viva voce and candidates with lower marks with ‘recommendation’ are getting into the service. This method is openly arbitrary and against natural justice and lowers the quality of judicial service spreading corruption. The High Court Judges behind this scheme enjoys immunity and exercise unchecked arbitrary power.