You topped the written exam. One mark in the interview cost you the judgeship.

When 10 Marks in an Interview Cost You a Judgeship

Abhimeet Sinha had done everything right. He cleared the written examination for a civil judge post in Bihar. He made it to the interview. But when the results came, he was out. Not because his overall score was low — but because he scored 9 out of 50 in the viva voce. The Bihar Rules demanded a minimum of 10. He missed by one mark. Across the country in Gujarat, dozens of other candidates faced the same wall: a 40% cutoff in the interview, regardless of how well they had written their answers.

Sixteen years after the Supreme Court accepted the Shetty Commission's recommendation that there should be no minimum marks for interviews in judicial recruitment, these candidates came to the same Court asking: didn't you already decide this? The answer, delivered by Justice Hrishikesh Roy and Justice Prashant Kumar Mishra on May 6, 2024, was a firm no. The Shetty Commission recommendations, the Court held, were guidelines — not binding mandates. And High Courts, under Articles 233-235 of the Constitution, have the power to set stricter criteria. The writ petitions were dismissed. The selection processes in Bihar and Gujarat were upheld.

For every candidate who has ever been told "you were excellent on paper, but your interview let you down," this judgment is a cold splash of reality. The Supreme Court has now made it clear: the interview matters. And it can matter a lot.

The two recruitment drives that sparked the challenge

The story begins in two different High Courts, at two different times, with the same basic rule.

In Bihar, the Patna High Court issued a notification on January 1, 2015, for 99 vacancies of civil judges. The selection was governed by the Bihar Superior Judicial Service Rules, 1951, as amended in 2013. Clause 11 of Appendix C to those Rules stated: "The candidates must secure at least 10 marks out of 50 marks in the interview." That is a 20% cutoff. Of the 69 candidates called for the viva voce, only 9 managed to cross that bar. The rest — including Abhimeet Sinha and several other petitioners — were eliminated.

In Gujarat, the story repeated itself under Rule 8 of the Gujarat State Judicial Service Rules, 2005. The cutoff was higher: 40% in the viva voce. Recruitment notifications for 2019 and 2022 required candidates to score at least 40 out of 100 in the interview to be considered for selection. Many candidates who had topped the written exam found themselves disqualified at the final hurdle.

The petitioners approached the Supreme Court directly under Article 32 of the Constitution, arguing that these cutoffs violated their fundamental rights under Articles 14 and 16. Their primary weapon was a 2002 Supreme Court judgment — All India Judges Association v. Union of India — which had accepted the Shetty Commission's recommendations. The Commission had said, in no uncertain terms, that there should be no minimum marks for the viva voce in judicial recruitment. The petitioners argued that this was the law of the land, and that the High Courts had no power to deviate from it.

What the Shetty Commission actually said

The Shetty Commission was constituted in 1999 to examine the working conditions of the subordinate judiciary. Its recommendations were sweeping: better pay, better infrastructure, and — crucially — a more objective selection process. The Commission was deeply skeptical of the viva voce. It believed that interviews were subjective, prone to bias, and that imposing a minimum cutoff in the interview would give the selection committee disproportionate power to exclude candidates who had performed well in the written exam.

In All India Judges (2002), a three-judge bench of the Supreme Court accepted the Shetty Commission's recommendations "with modifications." But here is the critical point: the judgment did not specifically address the question of minimum marks in the viva voce. It said that the selection process should be "objective" and that the Commission's recommendations should be "kept in mind" by the High Courts. It did not say: "No High Court shall ever prescribe a minimum cutoff for the interview."

That silence became the battleground.

The petitioners' argument: "You already decided this"

The petitioners, represented by senior counsel, argued that All India Judges (2002) had accepted the Shetty Commission's recommendations in their entirety. Since the Commission had said there should be no minimum marks for the viva voce, the High Courts could not impose such a cutoff. To do so, they argued, was to violate the law laid down by the Supreme Court — and, by extension, to violate Article 14 (right to equality) and Article 16 (equality of opportunity in public employment).

They pointed out that the viva voce was inherently subjective. An English-speaking urban candidate, they argued, would always have an advantage over a candidate from a rural or marginalized community. To make the interview a qualifying stage — rather than just a component of the overall score — was to give the selection committee a veto power that could be exercised arbitrarily.

The petitioners also argued that the High Courts could not pick and choose which of the Shetty Commission's recommendations to follow. If the Commission said no cutoff, then no cutoff it must be.

The High Courts' counter: "We need to see the person"

The Patna High Court and the Gujarat High Court, through their counsel, took a different view. They argued that the Shetty Commission's recommendations were guidelines, not binding mandates. The High Courts, under Articles 233-235 of the Constitution, had the power to prescribe their own selection procedures. And a minimum cutoff in the viva voce was a reasonable requirement: it ensured that the selected candidates had not only the intellectual ability to write a good exam, but also the personality, communication skills, and presence of mind required to be a judicial officer.

The High Courts also pointed to a practical reality: the written exam tests knowledge, but the interview tests the person. A judge who cannot speak clearly, who cannot think on their feet, who cannot handle pressure — that judge will struggle in the courtroom. The viva voce cutoff, they argued, was a necessary filter.

The Supreme Court's answer: "Guidelines, not mandates"

Justice Hrishikesh Roy, writing for the bench, began by clarifying what All India Judges (2002) actually decided. The Court examined the judgment carefully and found that it had not made any specific finding on the issue of minimum marks for the viva voce. The matter, the Court said, was sub-silentio — it had not been argued or decided. The petitioners could not claim that the issue was settled law.

The Court then turned to the Shetty Commission recommendations. Citing Mahinder Kumar v. High Court of Madhya Pradesh (2013), the Court held that these recommendations were "guidelines" that the High Courts should "keep in mind" while framing their recruitment rules. They were not binding mandates that could override validly framed statutory rules. The Court also cited Syed T.A. Naqshbandi v. State of J&K (2003) for the proposition that service conditions are governed by statutory rules, and that policy decisions or commission recommendations cannot override those rules.

On the constitutional challenge, the Court held that the prescription of minimum marks in the viva voce did not violate Articles 14 and 16. The cutoff bore a "reasonable nexus" with the objective of selecting well-rounded judicial officers. The Court observed:

THE TEST: A minimum cutoff in the viva voce for judicial recruitment is constitutionally valid if it bears a reasonable nexus with the legitimate aim of selecting candidates who possess not only intellectual ability but also the personality and communication skills required for judicial office.

The Court also addressed the Gujarat High Court's argument that the petitions were barred by res judicata because an earlier challenge to the same rule had been dismissed. The Supreme Court distinguished Daryao v. State of UP (1961), holding that the earlier case involved different parties and different facts, and that the present petitions were maintainable.

The one case that sealed the deal

The most significant precedent cited by the Supreme Court was its own recent judgment in Dr. Kavita Kamboj v. High Court of Punjab and Haryana, decided just months earlier in 2024. In that case, the Court had directly held that All India Judges (2002) made no specific finding on the cutoff for the viva voce, and that High Courts were not precluded from prescribing a minimum cutoff. The Kavita Kamboj judgment was squarely on point, and the Court followed it without hesitation.

The Court also addressed the argument that the Gujarat Rules had been framed without consulting the Public Service Commission. The Court noted that where the PSC does not wish to be consulted, the Governor is under no compulsion to consult it. The Gujarat Rules, framed with due consultation with the High Court, could not be declared void for non-consultation with the PSC.

Why this matters for every judicial recruitment

For advocates advising candidates in judicial service exams, this judgment is a clear signal. The viva voce cutoff is here to stay. High Courts have the power to set minimum marks for the interview, and the Supreme Court will not interfere unless the cutoff is so high that it becomes arbitrary or irrational.

For candidates, the takeaway is equally clear: do not neglect the interview. A brilliant written performance can be undone by a poor viva voce. The selection committee is looking for more than just knowledge — it is looking for presence, clarity, and the ability to think under pressure.

For CFOs and founders who may not be directly affected by judicial recruitment, the judgment has a broader lesson. The Supreme Court has affirmed that expert committee recommendations are not the same as law. They are guidelines, to be considered and applied, but they do not override validly framed statutory rules. This principle applies across domains — from tax policy to corporate governance.

The Court also made an interesting obiter observation: that English-speaking urban candidates could be at an advantage compared to rural and marginalized community candidates in the viva voce. This is a concern that may well be raised in future challenges. But for now, the Court has held that the solution lies not in abolishing the cutoff, but in ensuring that the interview process is fair, transparent, and free from bias.

The bottom line

The Supreme Court has upheld the power of High Courts to prescribe minimum marks in the viva voce for judicial recruitment. The Shetty Commission recommendations are guidelines, not binding mandates. Candidates who score well in the written exam but fail the interview cutoff have no constitutional right to be selected. The interview matters — and it can be a dealbreaker.