A case of aggregate policing? Challenge to the Madhya Pradesh notification prescribing 70% marks for judicial services aspirants

The Governor of Madhya Pradesh, in consultation with the High Court, vide Office Notification dated June 25, 2023, made certain substantial changes to the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994.

Of all the changes that the order intents to implement, one sore change that has not gone down well with judicial service aspirants is the change concerning Rule 7.

The substituted Rule 7 intends to, vide proviso to Rule 7(g), place an additional eligibility criterion on aspirants, of either having an experience of three years as a ‘practicing’ advocate, or being an ‘outstanding’ law graduate with a ‘brilliant academic career’ having passed all exams on the first attempt by securing at least 70% marks in aggregate (for General & Other Backward Class category candidates) and 50% marks for candidates belonging to the Scheduled Caste and Scheduled Tribe categories.

While the timing of the notification remains questionable, with the State going to the polls this year, the move has invited criticism from every concerned quarter of the legal fraternity. Understandably so, while the aspirants are concerned by the additional eligibility that they would have to fulfil, legal academia has also questioned the change as being tenuous, not only upon the students, but on faculty members as well.

While the moral, logical and empirical challenges are aplenty, this article will essentially present a case on the shaky legal ground that the substituted Rule 7 stands upon, inviting a challenge to this notification before the Supreme Court.

Whom does the challenge lie against?

The notification mentions that the Governor of Madhya Pradesh has issued it in consultation with the High Court. The Supreme Court in Gauhati High Court v. Kuladhar Phukan established the supremacy of the concerned High Court over the subordinate judiciary in the respective state. The Court went so far as to state that the ‘consultation’ with the High Court for judicial service rules is mandatory, and that the High Court’s opinion is binding upon the Governor.

Therefore, it can safely be assumed the in the instant case, the Governor has acted in consultation and consonance with the High Court, which, on the administrative side, has opined the 70% percentage eligibility criteria and the three-year experience rule as prudent. Rule 5 of the MP Judicial Service Rules prescribe the High Court as the appointing authority and Rule 9 makes the decision on the High Court on questions of eligibility as final. Thus, essentially, any litigation/challenge that may take place before the High Court and/or the Supreme Court (preferably), has to make the High Court, the Governor and the State of Madhya Pradesh as parties.

The reason for the Supreme Court to be a preferential forum of challenge on the question of law is the intrinsic involvement of the Chief Justice of the High Court in the entire process of formulation of these Rules and the recruitment process. Understandably so, the recommendations that were made to the Governor are understood to have been made after by the Full Court of the High Court.

In any case, the Chief Justice has been granted the power of relaxation under the now amended Rule 19 of the MP Rules, making him/her an interested party in the adjudication of the matter. Thus, an adjudication before the High Court would be against the very principles of natural justice, as espoused and discussed in detail by the Supreme Court in Supreme Court Advocates on Record Assn v. Union of India (Recusal Matter), wherein the Pinochet Principle has been discussed in detail. As per this principle, if a judge is interested in a cause being promoted by one of the parties, then he is automatically disqualified from hearing the case. Since the Full Court of the High Court was consulted before the notification of the amendment, that disqualifies the entire High Court, including all the judges, from hearing any challenge to the notification.

Why the notification is inherently discriminatory and stands on dubious legal ground

Prima facie, it violates Article 14 read with Article 16 of the Constitution by aiming to create two distinct classes of aspirants - one having attained 70% aggregate in their degree certificate (LL.B.) on the first attempt at every examination, and the other being that of aspirants who have continuously practiced for three years. The discrimination that the notification aims to espouse is treating aspirants having passed with 70% on a higher pedestal than those who did not attain the requisite percentage, the number 70% having no reasonable basis of classification. In the absence of the 70% at the graduation stage, a candidate would be required to undergo three years of legal training to attain the same level of eligibility that another candidate with 70% had since day one after graduation, thus placing them unequally despite both possessing a uniform degree of three-year/five-year LL.B., creating an unreasonable classification.

The Supreme Court in RK Garg v. Union of India held in unequivocal terms that the classification must not be arbitrary but rational, wherein the intelligible differentia must have a rational relation to the object sought to be achieved. In the instant case, if better dispensation of justice at the district/tehsil level is the objective, it is unclear as to how a 70% aspirant will be better able to dispense with the requirements of justice, which will be only be inculcated by someone else after three years of experience.

The Supreme Court in Deepak Sibal v. Punjab University held that ‘if the classification is illogical, unfair and unjust then it is unreasonable’. What study, survey, or report the High Court has relied upon, if any, remains questionable. However, if at all any report/survey/study was conducted, then it failed to take into consideration the flagrant inequality in the marking patterns of Indian universities. Whereas at places like Delhi University, getting a 65% is considered a tale for the history books, private universities on the other hand are notoriously infamous for distributing marks as high as 95%, with many universities in India boasting of an average batch percentage of 85-90%. On the other hand, most, if not all government universities would find it difficult to put up an average percentage of 60%. How exactly the High Court has computed the number 70% as reasonable for the basis of creating this intelligible differentia remains beyond understanding.

Aspirants having passed their LL.B. examinations with a percentage below 70%, but preparing for the judicial service examination for Madhya Pradesh without choosing to pursue a career in litigation can also claim violation of Article 14 to their detriment. Since such an unreasonable classification was not existing at the time of issuance of their degree certificates, their legitimate expectation has also been impinged upon in terms of the Supreme Court’s judgment in Navjyoti Cooperative Group Housing Society v. Union of India. In this case, the Court held that ‘if a person was enjoying certain benefit/advantage under an old policy, he acquires a legitimate expectation which can not be taken away without a reasonable basis, or an opportunity for representation’. In the instant case, neither is the classification reasonable, nor was an opportunity granted to the aggrieved aspirants to approach the proper forum, thus violating Articles 14 and 16.     

The three years’ experience requirement at the entry level was prescribed by the Supreme Court in All India Judges Association v. Union of India, following which multiple states amended their rules accordingly to incorporate it. But what the Madhya Pradesh High Court has conveniently chosen to ignore is that the three-year experience requirement was dispensed with by the Supreme Court in All India Judges Association v. Union of India, (2002) 4 SCC 247 for the simple reason that the best talent of the country was not attracted to the judicial services because of such criterion. The Court in this judgment (Para 32) observed and accepted the Justice Shetty Commission’s recommendation to do away with the three-year requirement and directed all High Courts and state governments to amend their rules accordingly. The decision of the Madhya Pradesh High Court to re-implement the three-year requirement appears to be in direct contravention of the Supreme Court’s judgment.

All legal considerations apart, the High Court ought to have considered that it was framing rules for the conduct of an examination which separates the chaff from the grain through a three-tier examination process (preliminary, mains and interview). Placing an unreasonable restriction at the very application stage defeats the purpose of conducting such a multi-tier examination, since the threshold in itself would act as an impediment for a large number of aspirants when it comes to taking the examination in the first place.

The 50% threshold has been considered reasonable for the longest time because the BCI and most, if not all universities in their examination system take 50% as the minimum passing marks. Thus, anyone below that will not be conferred the degree of LL.B. The states and various High Courts allowed all such candidates to take their respective judicial service examinations, letting the examination process and its stages separate the deserving from the undeserving.

The present amendment to the rules places an unreasonably high discretion in the hands of universities and teachers awarding marks to students in each semester and in each paper, knowing fully well that one semester back, or one mark less in the examination would set the student back by three years. This will promote favouritism and sycophancy and place uncalled for mental stress on LL.B. students already plagued with serious mental health issues.

Tathagat Sharma is an advocate of the Supreme Court of India.