Changing the Rules in Selection Processes #2: Bench Adjourns Case till After the Dussehra Vacation

On September 13th, 2022, a Constitution Bench led by Justice Indira Banerjee, comprising Justices H. Gupta, S. Kant, M.M. Sundresh, and S. Dhulia  adjourned the case to be heard after the Supreme Court’s Dussehra vacation. The Bench is deciding whether the eligibility criteria for public posts can be changed once the selection process has begun. 

In the last hearing on September 7th, the Bench ordered the parties to submit short notes on their individual cases, as there are a host of petitions to be decided alongside the main Rajasthan HC challenge. These include challenges to the changes made by the Gauhati and Kerala High Courts in the appointment process for Judicial Officers at District Courts. 

Parties Inform the Bench on Estimated Length of Their Arguments\

Additional Solicitor General M.G. Divan requested the Bench to accept the Union government as a party in this case. He said that they too are a public employer and would be affected by the ruling in this case. She requested for 45 minutes to make submissions on behalf of the Union government. \

The lawyer representing the Gauhati HC said he outlined six issues for the Bench to consider in his submissions. He said they would need more than one full day to make their arguments as they would be referring to 25 past SC Judgments. 

The Bench responded with hesitance to begin hearing arguments immediately. Justice Banerjee’s imminent retirement on September 23rd, 2022, loomed large over the proceedings. She suggested pushing the case to a later date as the case deserved an ‘effective’ hearing. 

Kerala District Judge Candidates Attempt To Make Their Arguments Separately

Mr. Dinesh stated that they had a very limited argument to make about whether cut-off marks in written examinations for District Judges can be introduced after the exam and the interview were conducted. The Kerala High Court Rules, he stated, barred introducing cut-off marks as a whole. He argued that the Bench must decide if introducing a cut-off mark despite the bar in the Rules is contrary to Article 233 of the Constitution of India, 1950. Article 233 gives the State Governor the power to make appointments in District Courts after consulting with the relevant High Court. 

ASG Divan refuted this, stating that Mr. Dinesh’s submissions provided a very limited and ‘blinkered’ view of the case. She argued that the larger question was about the limit of a public authority’s ability to make laws or notifications that have a ‘retrospective’ effect—an effect on actions or events that took place before the law or notification was issued. Justice Banerjee strongly agreed with ASG Divan’s submission. 

Mr. Dinesh pointed out that the SC in the past held that notifications cannot have a retrospective effect. Justice Banerjee immediately reminded counsels that a 5-Judge Bench could overrule this decision if they found it necessary.

The Bench put a stop to Mr. Dinesh’s submissions, indicating their unwillingness to hear arguments on the individual differences between the cases. Justice Banerjee asked the lawyers to consider the practical difficulties presented by her imminent retirement that the Bench had to consider. 

Case to be Heard After Dussehra Vacation

The Bench delivered an Order listing the matter for hearing as early as possible following the Supreme Court’s Dussehra vacations which begins on October 3rd, 2022. Chief Justice Lalit will have to create a new Constitution Bench to hear this case in the meantime.