Bombay HC Upholds District Judge Recruitment Conducted Under High Court-Approved But Unnotified Rule Amendments

Eight advocate-petitioners who failed the District Judge preliminary exam challenged the recruitment process as illegal because the governing rule amendments had not yet been published in the Official Gazette when the advertisement was issued. The Bombay High Court dismissed the petition, holding that the amendments were validly applied and the petitioners were barred by waiver and acquiescence.

A Division Bench of the Bombay High Court, led by Acting Chief Justice Ravindra V. Ghuge and Justice Gautam A. Ankhad, dismissed a writ petition filed by eight practising advocates who had failed the preliminary examination for recruitment to the cadre of District Judge in the Maharashtra Judicial Service. The petitioners argued that the recruitment process was vitiated because the amendments to the Maharashtra Judicial Service Rules, 2008 — which governed the selection — had been approved by the High Court's Full House but had not been formally published in the Official Gazette when the advertisement was issued on 30 January 2026. The bench rejected that argument on two independent grounds: the amendments were necessitated by a binding Constitution Bench judgment of the Supreme Court, and the petitioners had participated in the process with full knowledge of the conditions, only approaching the court after failing the preliminary examination.

The Recruitment Process and the Petitioners' Challenge

On 12 August 2025, the Supreme Court's Constitution Bench delivered its judgment in Rejanish K.V. v. K. Deepa & Ors., reported at (2026) 4 SCC 596. That judgment settled the law governing appointments to the cadre of District Judges under Article 233 of the Constitution. In paragraph 176, the Constitution Bench directed that all existing rules framed by State Governments in consultation with High Courts, which were inconsistent with its conclusions, “shall stand quashed and set aside,” and required all State Governments and High Courts to frame or amend the rules within three months.

Following that direction, the Bombay High Court's General Rules Committee approved the necessary amendments in November/December 2025. The Administrative Judges Committee then directed that the amendments be placed before the Full House, which approved them on 7 January 2026 and resolved to proceed with the recruitment process in anticipation of formal Gazette publication.

On 30 January 2026, the High Court issued Advertisement No. A.5504/2025 inviting online applications for 89 vacancies in the District Judge cadre by nomination (25%). Clause 2 of the advertisement expressly stated that the selection process would be regulated by the Maharashtra Judicial Service Rules, 2008 “and the amendments approved by the High Court thereto which are yet to be notified.” A total of 5,540 online applications were received from judicial officers and advocates. Of these, 4,831 candidates were found eligible to appear for the preliminary written examination.

On 26 March 2026, the High Court issued an addendum granting relaxation in the upper age limit to certain serving judicial officers. The preliminary examination was conducted on 10 May 2026 at four centres — Mumbai, Nagpur, Aurangabad, and Kolhapur. Results were declared on 14 May 2026. The eight petitioners were declared unsuccessful, having failed to secure the prescribed qualifying marks. They submitted a representation to the High Court on 19 May 2026 and filed the present writ petition on 9 June 2026.

On 17 June 2026, the Law and Judiciary Department, Government of Maharashtra published a notification in the Official Gazette formally notifying the amended rules. The petitioners then sought urgent hearing on the ground that the Main Written Examination was scheduled for 27 and 28 June 2026. The matter was taken up forthwith.

The petitioners sought to quash the advertisement, the corrigendum dated 26 March 2026, and the preliminary examination results dated 14 May 2026. They also sought a stay on the Main Written Examination. Their core contention was that the recruitment process could not lawfully be governed by amendments that had not been notified in the Official Gazette on the date of the advertisement, and that applying those amendments amounted to giving them retrospective effect in violation of Articles 14, 16, and 233 of the Constitution.

The Legal Issues Before the Bench

Three distinct legal questions arose. First, whether a recruitment process can be validly conducted under rule amendments approved by the High Court but not yet published in the Official Gazette. Second, whether petitioners who participated in the selection process without protest are barred from challenging it after failing. Third, whether the newly inserted Rule 6(2)(b) — which empowers the High Court to prescribe the syllabus and provide for moderation of answer sheets — was applied retrospectively to the petitioners' prejudice.

Counsel for the petitioners, Dr. U.P. Warunjikar, relied on three Supreme Court decisions. In Harla v. State of Rajasthan, AIR 1951 SC 936, the Supreme Court held that a law cannot become operative unless promulgated or published in a manner by which it is made known to the public. In Viraj Impex Pvt. Ltd. v. Union of India, the court held that a notification under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 acquires the force of law only upon publication in the Official Gazette. In Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors., 2024 INSC 847, the court addressed the impermissibility of altering the rules of the game after a recruitment process has commenced.

Senior Advocate Dr. Milind Sathe, appearing for the High Court as Respondent No. 2, countered that the Constitution Bench judgment in Rejanish K.V. itself constituted the governing law on the date of the advertisement, having quashed all inconsistent rules. The advertisement expressly disclosed the basis of the recruitment. The petitioners participated with full knowledge and cannot challenge the process after an unfavourable result. He relied on Tajvir Singh Sodhi & Ors. v. State of Jammu and Kashmir & Ors., (2023) 17 SCC 147.

How the Bench Reasoned

The bench began its analysis by examining the effect of the Constitution Bench's directions in Rejanish K.V. The court reproduced the operative paragraphs at length, including paragraph 176, which directed that all inconsistent rules “shall stand quashed and set aside” and required amendment within three months. The bench held that the law declared by the Constitution Bench became operative from the date of the judgment itself, and all existing rules inconsistent with it ceased to hold the field from that date.

Against that backdrop, the bench found that on 30 January 2026 — the date of the advertisement — the earlier inconsistent rules had already been quashed by the Supreme Court's pronouncement. The amendments approved by the Full House on 7 January 2026 were intended to bring the Maharashtra Judicial Service Rules, 2008 into conformity with that declaration of law. The Gazette notification of 17 June 2026 merely completed the formal statutory process. In these circumstances, the bench held that the recruitment process could not be invalidated merely because the formal notification followed the issuance of the advertisement, particularly when the advertisement itself expressly disclosed the basis on which the recruitment was to be conducted.

The bench then addressed the waiver and acquiescence point. Clause 2 of the advertisement had expressly informed every prospective candidate that the approved amendments would govern the selection, notwithstanding that formal Gazette publication was awaited. The petitioners submitted their applications with full knowledge of this condition. They neither sought a copy of the approved amendments nor questioned the advertisement or the addendum of 26 March 2026 before appearing in the preliminary examination. The bench held that having consciously accepted the terms of the advertisement and participated without demur, the petitioners could not seek to challenge the very process in which they had competed.

Applying Tajvir Singh Sodhi, the bench reiterated the settled principle that a candidate who participates in a selection process without any demur or protest is precluded from challenging it after being declared unsuccessful. The court quoted the Supreme Court's observation that such a candidate “cannot approbate and reprobate by accepting the process when hopeful of success and, questioning it only after an unfavourable result.”

On the retrospectivity argument concerning Rule 6(2)(b), the bench found it entirely without factual foundation. The petitioners had placed no material to demonstrate that the syllapur applicable to the examination was altered after the advertisement was issued, or that any moderation of answer sheets was carried out to their prejudice. The bench held that a challenge founded on conjecture, without any factual foundation demonstrating actual prejudice, cannot furnish a ground to interfere with an ongoing recruitment process.

The bench then distinguished each of the three precedents relied upon by the petitioners. Viraj Impex concerned the date on which a notification under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 acquired legal force in the context of import restrictions affecting vested commercial rights. The issue there was entirely different from a recruitment process initiated after the Supreme Court had quashed the earlier inconsistent rules. The bench held that the ratio of Viraj Impex had no application to the present facts.

As for Harla, the bench noted that the case involved a law enacted by a Council of Ministers by mere resolution, without any promulgation or publication whatsoever. The petitioners before the Bombay High Court were not confronted with any secret or undisclosed rule. They had express notice through Clause 2 of the advertisement. The bench also pointed to the Gazette notification itself, which stated in Clause 1(3) that the amended rules would apply to the Selection Process-2025 and onwards for the posts of District Judge. The rationale underlying Harla — that persons likely to be affected must have notice of the law — was fully satisfied on the facts. Tej Prakash Pathak was similarly distinguished: there was no material to show that the selection criteria or rules of the game were altered after the recruitment process commenced.

The bench concluded that the petitioners had failed to establish any arbitrariness, illegality, or violation of Articles 14, 16, or 233 of the Constitution. The challenge was held to be clearly hit by the principles of waiver and acquiescence and, in any event, devoid of merit.

Outcome

Writ Petition No. 7604 of 2026 was dismissed. Rule was discharged. The bench made no order as to costs. The Main Written Examination, scheduled for 27 and 28 June 2026 (Paper I — Civil Law, and Paper II — Criminal Law), was left undisturbed. The 1,013 candidates who had qualified in the preliminary examination remained eligible to appear.