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Synopsis

The Supreme Court on November 7, 2024, held that eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. 

Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness, a five-judge Constitution bench led by former Chief Justice of India D Y Chandrachud said.

The court said that the recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/ non arbitrary and has a rational nexus to the object sought to be achieved.

"Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps; Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list," the bench said.

The judgement by the bench also comprising Justices Hrishikesh Roy, P S Narasimha, Pankaj Mithal and Manoj Misra, was passed on a reference made by a three-judge bench on March 20, 2013.

The court noted that the decision in K Manjusree (2008) lays down good law and is not in conflict with the decision in Subash Chander Marwaha (1974). Subash Chander Marwaha deals with the right to be appointed from the Select List whereas K Manjusree deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues, the bench said.

The court pointed out that in various judicial pronouncements, the law governing recruitment to public services has been colloquially termed as ‘the rules of the game’. 

The ‘game’ is the process of selection and appointment. Courts have consistently frowned upon tinkering with the rules of the game once the recruitment process commences, the bench said. 

"This has crystallised into an oft-quoted legal phrase that “the rules of the game must not be changed mid-way, or after the game has been played”. Broadly speaking these rules fall in two categories. One which prescribes the eligibility criteria (i.e., essential qualifications) of the candidates seeking employment; and the other which stipulates the method and manner of making the selection from amongst the eligible candidates," the bench said.

The court pointed out that the object of any process of selection for entry into a public service is to ensure that a person most suitable for the post is selected. "What is suitable for one post may not be for the other. Thus, a degree of discretion is necessary to be left to the employer to devise its method/ procedure to select a candidate most suitable for the post albeit subject to the overarching principles enshrined in Articles 14 and 16 of the Constitution as also the Rules/ Statute governing service and reservation," it said.

"Thus, in our view, the appointing authority/ recruiting authority/ competent authority, in absence of Rules to the contrary, can devise a procedure for selection of a candidate suitable to the post and while doing so it may also set benchmarks for different stages of the recruitment process including written examination and interview. However, if any such benchmark is set, the same should be stipulated before the commencement of the recruitment process. But if the extant Rules or the advertisement inviting applications empower the competent authority to set benchmarks at different stages of the recruitment process, then such benchmarks may be set any time before that stage is reached so that neither the candidate nor the evaluator/ examiner/ interviewer is taken by surprise," the bench added.

The court thus held that the decision in K Manjusree does not proscribe setting of benchmarks for various stages of the recruitment process but mandates that it should not be set after the stage is over, in other words after the game has already been played.

"This view is in consonance with the rule against arbitrariness enshrined in Article 14 of the Constitution and meets the legitimate expectation of the candidates as also the requirement of transparency in recruitment to public services and thereby obviates mal practices in preparation of select list," the bench said.

The court also noted that a recruitment process inter alia comprises of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. 

"Subject to the rule against arbitrariness, how tests or viva voce are to be conducted, what questions are to be put, in what manner evaluation is to be done, whether a short listing exercise is needed are all matters of procedure which, in absence of rules to the contrary, may be devised by the competent authority," the bench said.

The court also noted often advertisement(s) inviting applications are open-ended in terms of these steps and leave it to the discretion of the competent authority to adopt such steps as may be considered necessary in the circumstances albeit subject to the overarching principle of rule against arbitrariness enshrined in Article 14 of the Constitution.

The court also noted the example in respect of fixing different cutoffs for different subjects having regard to the relative importance of the subjects and their degree of relevance.

"These instances make it clear that this Court has been lenient in letting recruiting bodies devise an appropriate procedure for successfully concluding the recruitment process provided the procedure adopted has been transparent, non-discriminatory/ non-arbitrary and having a rational nexus to the object sought to be achieved," the bench said.

The bench also emphasised that the State or its instrumentality cannot arbitrarily deny appointment to a selected candidate. 

"Therefore, when a challenge is laid to State’s action in respect of denying appointment to a selected candidate, the burden is on the State to justify its decision for not making appointment from the Select List," the bench said.

Case Title: Tej Prakash Pathak & Ors Vs Rajasthan High Court & Ors