Unsuccessful Advocates Cannot Question Selection Process After Participating Without Protest: Bombay High Court
Fact
The judgment concerns a challenge by unsuccessful candidates to the Maharashtra District Judge recruitment process on the ground that the amended Judicial Service Rules had not yet been formally notified when the advertisement was issued.
Issues
- Whether the District Judge recruitment process initiated on 30 January 2026 could be governed by amendments to the Maharashtra Judicial Service Rules that had been approved by the Bombay High Court but were formally notified only on 17 June 2026.
- Whether applying the approved amendments before their Gazette notification amounted to giving them retrospective effect.
- Whether the recruitment process violated Articles 14, 16 and 233 of the Constitution.
- Whether the syllabus, examination procedure or selection criteria had been altered after commencement of the recruitment process.
- Whether candidates who knowingly participated in the selection process and challenged it only after failing the preliminary examination were barred by waiver, acquiescence and the principle against approbation and reprobation.
- Whether the main written examination scheduled for 27 and 28 June 2026 should be stayed.
Petitioner’s Arguments
The petitioners were practising advocates who had appeared in the preliminary examination for direct recruitment to the cadre of District Judge but failed to secure the qualifying marks.
They argued that the recruitment process had to be governed by the Maharashtra Judicial Service Rules as they stood on the date of the advertisement, namely 30 January 2026.
The advertisement itself stated that the amendments approved by the High Court were yet to be notified. According to the petitioners, non-notified rules could not legally govern the recruitment process.
They contended that the amended rules became operative only upon publication in the Official Gazette on 17 June 2026.
Applying those amendments to a recruitment process that had already commenced would therefore amount to retrospective application of the rules.
The petitioners also challenged the newly inserted Rule 6(2)(b), which empowered the High Court to prescribe the syllabus and provide for moderation of answer sheets in the main examination.
They argued that this could alter the rules of the selection process after it had begun and place them at a disadvantage.
According to the petitioners, the delay in notification could not prejudice candidates and the process violated Articles 14, 16 and 233 of the Constitution.
They maintained that their failure in the preliminary examination did not prevent them from challenging the legality of the entire recruitment process.
They sought quashing of the advertisement, addendum and preliminary examination results, along with a stay on the main written examination.
Respondent’s Arguments
The Bombay High Court administration argued that the Constitution Bench judgment in Rejanish K.V. v. K. Deepa constituted the governing law from the date of its pronouncement.
That judgment had expressly quashed all State Judicial Service Rules inconsistent with the principles declared by the Supreme Court and directed the High Courts and State Governments to amend their rules accordingly.
The amendments approved by the Full House of the Bombay High Court on 7 January 2026 were intended only to bring the Maharashtra Judicial Service Rules into conformity with the binding Supreme Court judgment.
The advertisement clearly disclosed that the recruitment process would be governed by the existing rules together with the amendments approved by the High Court but awaiting formal notification.
The petitioners therefore had full knowledge of the applicable framework before applying and appearing in the examination.
They neither sought the approved amendments nor challenged the advertisement before participating.
Having taken a chance in the selection process and failed, they could not subsequently challenge the same process.
The respondents relied upon Tajvir Singh Sodhi v. State of Jammu and Kashmir and related precedents on waiver and acquiescence.
It was also argued that the petitioners had produced no material to show that the syllabus had actually been changed or that moderation had been applied to their prejudice.
The State supported the recruitment process and opposed any stay of the main examination.
Analysis of the Law
Binding Effect of the Constitution Bench Judgment
The Court examined the directions issued by the Supreme Court in Rejanish K.V. v. K. Deepa.
The Constitution Bench had held that:
- judicial officers with the prescribed combined experience could compete for appointment as District Judges;
- eligibility had to be assessed at the time of application;
- advocates and judicial officers required seven years’ relevant combined experience;
- the minimum age for both categories was 35 years; and
- all inconsistent State rules stood quashed.
The Court held that these directions became legally operative from the date of the Supreme Court judgment itself.
Once inconsistent rules stood quashed, recruitment could not lawfully continue under those earlier provisions.
The approved amendments merely translated the binding constitutional declaration into the State rules.
Effect of Delayed Gazette Notification
The Court rejected the proposition that the recruitment process became illegal merely because the formal Gazette notification followed the advertisement.
The advertisement expressly stated that the approved amendments, though not yet notified, would govern the selection.
The petitioners were therefore not subjected to any secret, undisclosed or unknown norm.
The eventual notification dated 17 June 2026 completed the formal statutory process and expressly provided that the amended rules would apply to the relevant recruitment cycle.
In the peculiar circumstances, invalidating the process solely because formal publication came later would have meant permitting recruitment under rules already rendered inconsistent by the Supreme Court.
Retrospective Application and Change in Rules
The Court found no factual basis for the petitioners’ allegation that the rules of the game had been altered after commencement of the process.
There was no evidence that:
- the syllabus was changed after publication of the advertisement;
- the mode of examination was altered;
- moderation was actually applied to the petitioners’ prejudice; or
- any selection criterion was modified after candidates had entered the process.
A speculative challenge founded on what the amended rule theoretically permitted could not invalidate the recruitment process.
Waiver and Acquiescence
The Court applied the settled principle that a candidate who participates in a selection process with full knowledge of its terms cannot ordinarily challenge the process after being declared unsuccessful.
The petitioners had:
- read the advertisement;
- known that the approved amendments would apply;
- submitted applications;
- appeared in the preliminary examination; and
- raised no objection until after failing.
The Court held that they could not accept the process while hoping to succeed and attack it only after the result became unfavourable.
Their challenge was therefore barred by waiver and acquiescence.
Articles 14, 16 and 233
The petitioners failed to establish any arbitrariness, discrimination or constitutional violation.
The recruitment process was founded upon a binding Constitution Bench judgment and was conducted after making the governing basis clear to all applicants.
There was no demonstrated unequal treatment or actual prejudice.
Precedent Analysis
Rejanish K.V. v. K. Deepa
This Constitution Bench decision was the central authority governing the dispute.
It redefined eligibility for direct recruitment to the District Judge cadre and directed that inconsistent State rules would stand quashed.
The Bombay High Court held that the recruitment process had to conform to this binding declaration from the date of the judgment.
The approved amendments were therefore not an independent source of new rights retrospectively imposed on candidates; they implemented the law already declared by the Supreme Court.
Tajvir Singh Sodhi v. State of Jammu and Kashmir
This decision reiterated that candidates who participate in a selection process without protest cannot challenge it after being unsuccessful.
The Supreme Court described such conduct as impermissible approbation and reprobation.
The Bombay High Court applied this principle directly because the petitioners had full notice of the governing amendments before participating.
Manish Kumar Shahi v. State of Bihar
This authority held that a candidate who participates in a selection process without objection is precluded from later challenging the selection criteria.
It supported the conclusion that the petitioners had waived their right to object after taking the examination.
Ramesh Chandra Shah v. Anil Joshi
The Supreme Court held that candidates who knowingly participated under the applicable recruitment framework could not subsequently challenge the advertisement or methodology after failing.
The Bombay High Court relied on this broader line of authority on waiver and estoppel.
Ashok Kumar v. State of Bihar
This case reaffirmed that a candidate cannot participate in an examination, await the outcome and then challenge the procedure merely because the result was unfavourable.
The principle was found fully applicable to the petitioners.
Harla v. State of Rajasthan
The petitioners relied on this decision for the proposition that a law cannot operate without promulgation or publication.
The Court distinguished it.
Harla involved an entirely unpublished law that had never been communicated to the public.
In the present case, the advertisement itself expressly disclosed that the approved amendments would govern the recruitment.
The candidates therefore had reasonable and actual notice.
Viraj Impex Private Limited v. Union of India
This decision concerned the date on which a foreign trade notification acquired legal force and affected vested commercial rights.
The Court held that the controversy was materially different.
The present recruitment process arose after the Supreme Court had already quashed inconsistent rules and mandated conformity with its judgment.
Tej Prakash Pathak v. Rajasthan High Court
The petitioners relied upon the principle that the rules of a selection process cannot ordinarily be changed after commencement.
The Court held that no such change had been shown in the present case.
There was no evidence of alteration of the syllabus, qualifying criteria or evaluation method after the process began.
Court’s Reasoning
The Court held that the petitioners’ core premise was incorrect.
The recruitment process was not based merely on unpublished amendments. It was based upon the binding law declared by the Supreme Court in Rejanish K.V.
The inconsistent portions of the earlier rules had ceased to operate from the date of that judgment.
The Bombay High Court had approved amendments to bring the rules into conformity with the Supreme Court’s directions and had expressly disclosed this position in the recruitment advertisement.
The petitioners knowingly accepted this condition and participated.
Their challenge was raised only after they failed to qualify in the preliminary examination.
The Court found no evidence that the syllabus had been altered, answer-sheet moderation had prejudiced them or any recruitment norm had been changed midstream.
The delayed Gazette notification did not invalidate the process because:
- the governing Supreme Court law was already operative;
- the approved amendments were expressly disclosed;
- the candidates had actual notice;
- the notification later completed the formal process; and
- the notification itself applied the amended rules to the relevant recruitment cycle.
The Court therefore found no arbitrariness, illegality or constitutional infirmity.
It also held that staying the main examination at such a late stage would unjustifiably disrupt a large recruitment process involving 1,013 qualified candidates.
Conclusion
The Bombay High Court dismissed the writ petition.
It upheld the District Judge recruitment process initiated through the advertisement dated 30 January 2026.
The Court held that the process could validly be conducted in conformity with the amendments approved by the High Court pursuant to the binding Constitution Bench judgment, even though formal Gazette notification followed later.
It further held that the petitioners had knowingly participated without objection and could not challenge the process after failing the preliminary examination.
No stay was granted against the main written examination scheduled for 27 and 28 June 2026.
There was no order as to costs.
Case: Suraj Deepak Mane & Others v. State of Maharashtra & Another
Court: High Court of Judicature at Bombay, Civil Appellate Jurisdiction
Case Number: Writ Petition No. 7604 of 2026
Judge: Acting Chief Justice Ravindra V. Ghuge and Justice Gautam A. Ankhad
Date: 25 June 2026
Result: Writ petition dismissed; District Judge recruitment process upheld and no stay granted against the main written examination.
