# Tej Prakash Pathak & Ors v. Rajasthan High Court & Ors

- **Citation:** 2024 INSC 847
- **Court:** Supreme Court of India
- **Decided:** 2024-11-07
- **Case number:** Civil Appeal No. 2634 of 2013
- **Bench:** Dr Dhananjaya Y Chandrachud, Hrishikesh Roy, Pamidighantam Sri Narasimha, Pankaj Mithal, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tej-prakash-pathak-ors-v-rajasthan-high-court-ors-37448
- **Pages:** 40

## Headnote

(a) When the recruitment process commences and comes to an
end; (b) Basis of the doctrine that 'rules of the game' must not
be changed during the course of the game, or after the game is
played; (c) Whether the decision in K. Manjusree is at variance with
earlier precedents on the subject; (d) Whether recruiting bodies
can devise an appropriate procedure for concluding recruiting
process; (e) Whether the procedure prescribed in the Extant Rule
can be violated; (f) Whether appointment could be denied even
after placement in select list.
Headnotes†
Service Law - Recruitment - Commencement and end of the
recruitment process:
Held: The process of recruitment begins with the issuance of
advertisement and ends with the filling up of notified vacancies -
It consists 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. [Para 13]
Service Law - Recruitment - Basis of the doctrine that 'rules
of the game' must not be changed during the course of the
game, or after the game is played:
Held: The doctrine proscribing change of rules midway through
the game, or after the game is played, is predicated on the rule
against arbitrariness enshrined in Article 14 of the Constitution -
Article 16 is only an instance of the application of the concept of
* Author
[2024] 12 S.C.R.
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Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.
equality enshrined in Article 14 - In other words, Article 14 is the
genus while Article 16 is a species - Article 16 gives effect to the
concept of equality in all matters relating to public employment -
These two articles strike at arbitrariness in State action and
ensure fairness and equality of treatment - Eligibility criteria for
being placed in the Select List, notified at the commencement
of the recruitment process, cannot be changed midway through
the recruitment process 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. [Paras 14, 42(2)]
Service Law - Recruitment - Whether the decision in
K. Manjusree is at variance with earlier precedents on the
subject:
Held: K. Manjusree case is not at variance with earlier precedents -
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 malpractices in
preparation of select list - The decision in K. Manjusree case lays
down good law and is not in conflict with the decision in Subash
Chander Marwaha case - 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. [Paras 18, 30, 42(3)]
Service Law - Recruitment - Whether recruiting bodies can
devise an appropriate procedure for concluding recruiting
process:
Held: 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. [Para 42(4)]
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Service Law - Recruitment - Whether the procedure pr

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[2024] 12 S.C.R. 28 : 2024 INSC 847
Tej Prakash Pathak & Ors.
v.
Rajasthan High Court & Ors.
(Civil Appeal No. 2634 of 2013)
07 November 2024
[Dr Dhananjaya Y Chandrachud, CJI, Hrishikesh Roy,
Pamidighantam Sri Narasimha, Pankaj Mithal and
Manoj Misra,* JJ.]
Issue for Consideration
(a) When the recruitment process commences and comes to an
end; (b) Basis of the doctrine that 'rules of the game' must not
be changed during the course of the game, or after the game is
played; (c) Whether the decision in K. Manjusree is at variance with
earlier precedents on the subject; (d) Whether recruiting bodies
can devise an appropriate procedure for concluding recruiting
process; (e) Whether the procedure prescribed in the Extant Rule
can be violated; (f) Whether appointment could be denied even
after placement in select list.
Headnotes†
Service Law - Recruitment - Commencement and end of the
recruitment process:
Held: The process of recruitment begins with the issuance of
advertisement and ends with the filling up of notified vacancies -
It consists 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. [Para 13]
Service Law - Recruitment - Basis of the doctrine that 'rules
of the game' must not be changed during the course of the
game, or after the game is played:
Held: The doctrine proscribing change of rules midway through
the game, or after the game is played, is predicated on the rule
against arbitrariness enshrined in Article 14 of the Constitution -
Article 16 is only an instance of the application of the concept of
* Author
[2024] 12 S.C.R.
29
Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.
equality enshrined in Article 14 - In other words, Article 14 is the
genus while Article 16 is a species - Article 16 gives effect to the
concept of equality in all matters relating to public employment -
These two articles strike at arbitrariness in State action and
ensure fairness and equality of treatment - Eligibility criteria for
being placed in the Select List, notified at the commencement
of the recruitment process, cannot be changed midway through
the recruitment process 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. [Paras 14, 42(2)]
Service Law - Recruitment - Whether the decision in
K. Manjusree is at variance with earlier precedents on the
subject:
Held: K. Manjusree case is not at variance with earlier precedents -
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 malpractices in
preparation of select list - The decision in K. Manjusree case lays
down good law and is not in conflict with the decision in Subash
Chander Marwaha case - 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. [Paras 18, 30, 42(3)]
Service Law - Recruitment - Whether recruiting bodies can
devise an appropriate procedure for concluding recruiting
process:
Held: 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. [Para 42(4)]
30
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Service Law - Recruitment - Whether the procedure prescribed
in the Extant Rule can be violated:
Held: Procedure prescribed in the Extant Rule cannot be violated -
Extant Rules having statutory force are binding on the recruiting
body both in terms of procedure and eligibility - Where there are
no Rules or the Rules are silent on the subject, administrative
instructions may be issued to supplement and fill in the gaps in the
Rules - In that event administrative instructions would govern the
field provided they are not ultra vires the provisions of the Rules or
the Statute or the Constitution - But where the Rules expressly or
impliedly cover the field, the recruiting body would have to abide
by the Rules. [Paras 39, 42(5)]
Service Law - Name in select list - Right to appointment -
Whether appointment could be denied even after placement
in select list:
Held: Appointment may be denied even after placement in select
list - A candidate placed in the select list gets no indefeasible
right to be appointed even if vacancies are available - But there
is a caveat - 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. [Para 40]
Service Law - Recruitment - Legitimate Expectation -
Discretion of Public Authority - Public Interest:
Held: Candidates participating in a recruitment process have
legitimate expectation that the process of selection will be fair
and non-arbitrary - The basis of doctrine of legitimate expectation
in public law is founded on the principles of fairness and nonarbitrariness in government dealings with individuals - However,
the doctrine of legitimate expectation does not impede or hinder the
power of the public authorities to lay down a policy or withdraw it -
The public authority has the discretion to exercise the full range of
choices available within its executive power - The public authority
often has to take into consideration diverse factors, concerns, and
interests before arriving at a particular policy decision - The courts
are generally cautious in interfering with a bona fide decision of
public authorities which denies legitimate expectation provided
such a decision is taken in the larger public interest - Thus, public
[2024] 12 S.C.R.
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Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.
interest serves as a limitation on the application of the doctrine
of legitimate expectation - Courts have to determine whether the
public interest is compelling and sufficient to outweigh the legitimate
expectation of the claimant. [Para 16]
Case Law Cited
K. Manjusree v. State of A.P. [2008] 2 SCR 1025 : (2008) 3 SCC
512 - held good law.
Sivanandan CT & Ors. v. High Court of Kerala & Ors. [2023] 11
SCR 674 : 2023 INSC 709 - followed.
Ramesh Kumar v. High Court of Delhi [2010] 2 SCR 256 : (2010) 3
SCC 104; K. H. Siraj v. High Court of Kerala & Ors. [2006] Supp.
2 SCR 790 : (2006) 6 SCC 395; M.P. Public Service Commission
v. Navnit Kumar Potdar [1994] Supp. 3 SCR 665 : (1994) 6 SCC
293; Union of India v. T. Sundararaman [1997] 3 SCR 792 :
(1997) 4 SCC 664; Tridip Kumar Dingal v. State of W.B. [2008]
15 SCR 194 : (2009) 1 SCC 768; Salam Samarjeet Singh v. The
High Court of Manipur at Imphal & Anr. [2024] 8 SCR 885 : 2024
INSC 647 - relied on.
State of Haryana v. Subash Chander Marwaha [1974] 1 SCR 165 :
(1974) 3 SCC 220; Tej Prakash Pathak & Others v. Rajasthan
High Court and Others (2013) 4 SCC 540; Shankar K. Mandal
v. State of Bihar [2003] 3 SCR 796 : (2003) 9 SCC 519; Mohd.
Sohrab Khan v. Aligarh Muslim University and Others [2009] 2
SCR 907 : (2009) 4 SCC 555; A.P. Public Service Commission v.
B. Sarat Chandra [1990] 2 SCR 463 : (1990) 2 SCC 669; Rakhi
Ray v. High Court of Delhi [2010] 2 SCR 239 : (2010) 2 SCC 637;
E.P. Royappa v. State of T.N. [1974] 2 SCR 348 : (1974) 4 SCC 3;
State of Jharkhand v. Brahmputra Metallics Ltd. [2020] 14 SCR 45 :
(2023) 10 SCC 634; Shankarsan Dash v. Union of India [1991] 2 SCR
567 : (1991) 3 SCC 47; All India SC & ST Employees Association v.
A. Arthur Jeen & Others [2001] 2 SCR 1183 : (2001) 6 SCC 380; M.
Ramesh v. Union of India [2018] 6 SCR 763 : (2018) 16 SCC 195;
P.K. Ramachandra Iyer v. Union of India [1984] 2 SCR 200 : (1984)
2 SCC 141; Hemani Malhotra v. High Court of Delhi [2008] 5 SCR
1066 : (2008) 7 SCC 11; Ashok Kumar Yadav v. State of Haryana
[1985] Supp. 1 SCR 657 : (1985) 4 SCC 417; Lila Dhar v. State
of Rajasthan and Others [1982] 1 SCR 320 : (1981) 4 SCC 159;
Santosh Kumar Tripathi v. U.P. Power Corporation (2009) 14 SCC
210; Banking Service Recruitment Board, Madras v. V. Ramalingam
(1998) 8 SCC 523 - referred to.
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[2024] 12 S.C.R.
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Books and Periodicals Cited
United Nations Handbook of Civil Service Laws and Practices.
List of Acts
Constitution of India; Rajasthan High Court Staff Service Rules
2002; Kerala Judicial Service Rules, 1991.
List of Keywords
Service Law; Recruitment; Appointment; 'Rules of the game';
Recruiting bodies; Appropriate procedure; Recruiting process; Name
in select list; Right to appointment; Procedure prescribed in the
Extant Rule; Recruiting process; Article 14 of the Constitution; Article
16 of the Constitution; Article 309 of the Constitution; Transparent;
Non-discriminatory; Non-arbitrary; Eligibility criteria; Select List;
Extant Rule; Principle of fairness; Legitimate expectation; Rule
against arbitrariness.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2634 of 2013
From the Judgment and Order dated 11.03.2011 of the High Court
of Rajasthan at Jodhpur in DBCWP No. 2174 of 2010
With
Civil Appeal Nos. 2635 And 2636 of 2013
Appearances for Parties
Dr. Ritu Bhardwaj, Mohan Kumar, Anurag Katarki, Amit Kumar,
Ms. Neetu Singh, Ms. Asia Beg, Mrs. Haripriya Padmanabhan,
Kuriakose Varghese, V. Shyamohan, Shrutanjaya Bhardwaj, Ms.
Aishwarya Hariharan, Vishal Sinha, Akshat Gogna, Ms. Isha Ghai
(for M/s. Kmnp Law), Raghenth Basant, Ms. Liz Mathew, Ms.
Aakashi Lodha, Ms. Mallika Agarwal, P. V. Dinesh, Ms. Oommen
Anna A, Ms. Urvashi Chauhan, Chetan Garg, Ranjit Kumar, Ajay
Vikram Singh, Advs. for the Appellants.
K.M. Nataraj, ASG, Vijay Hansaria, Sr. Adv., Pawanshree Agrawal,
Sunil Kumar Jain, Ms. Rashika Swarup, Ms. Tanya Agarwal,
Anil Kumar, Maibam Nabaghanashyam Singh, Mahesh Thakur,
Shakti K Pattanaik, Advs. for the Respondents.
[2024] 12 S.C.R.
33
Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.
Judgment / Order of the Supreme Court
Judgment
Manoj Misra, J.
The ideal in recruitment is to do away with unfairness1
REFERENCE
1.
A three-Judge Bench of this Court while accepting the salutary
principle that once the recruitment process commences the State or
its instrumentality cannot tinker with the "rules of the game" insofar
as the prescription of eligibility criteria is concerned, wondered
whether that should apply also to the procedure for selection. In that
context, doubting the correctness of a coordinate Bench decision in
K. Manjusree2 for not having noticed an earlier decision in Subash
Chander Marwaha,3 vide order4 dated 20 March 2013, it was directed
that the matter be placed before the Chief Justice for constituting
a larger Bench for an authoritative pronouncement on the subject.
THE FACTUAL CONTEXT FOR THE REFERENCE
2.
The relevant facts giving rise to the reference are as follows:
(a) The Rajasthan High Court5 vide notification dated 17 September
2009 invited applications from amongst Judicial Assistants and
Junior Judicial Assistants, having an experience of three years
in the establishment of the High Court and possessing degree
of M. A. in English Literature, for appointment on 13 posts of
Translators. Preference was to be accorded to law graduates.
(b) At the relevant time, 'The Rajasthan High Court Staff Service
Rules 2002'6 framed by the Chief Justice of the High Court
under Article 229 (2) of the Constitution of India7 governed the
appointments.
1
UNITED NATIONS HANDBOOK OF CIVIL SERVICE LAWS AND PRACTICES.
2
K. Manjusree v. State of A.P. (2008) 3 SCC 512
3
State of Haryana v. Subash Chander Marwaha (1974) 3 SCC 220
4
Tej Prakash Pathak & Others v. Rajasthan High Court and Others (2013) 4 SCC 540
5
The High Court.
6
2002 Rules.
7
Constitution.
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(c)
Under the 2002 Rules, the Chief Justice of the High Court vide
Office Order dated 5 December 2002, inter alia, specified the
qualifications as well as the method of recruitment for the post
of 'Translator' (Ordinary Scale) in the following terms:
"TRANSLATORS (ORDINARY SCALE)
Recruitment to the post of Translators (Ordinary
Scale) shall be made on the recommendation of a
Committee nominated by the Appointing Authority on
the criteria of selection from amongst the graduate
Upper Division Clerks or officials in equivalent or
above grade but below the grade of Translators
(Ordinary Scale), with Hindi or English Literature as
one of the optional subject in Graduation or Lower
Division Clerks with Hindi or English Literature as
subject in post-graduation and having minimum
experience of five years.
COMPETITIVE EXAMINATION
A qualifying examination shall be held to test the
ability of the candidates of translation from English
to Hindi and Hindi to English.
Paper-I English to Hindi translation
100 marks
Paper-II Hindi to English translation
100 marks
Explanation: For the qualifying examination the
officials appearing therein shall be given passages
for translation from English to Hindi and Hindi to
English from the judgment and records.
Personal Interview:
There shall be a personal interview
of the candidate.
50 marks
Note: A candidate who secures in aggregate
75% marks and minimum 60% marks in each paper
shall only be called for interview."
(d) Later, vide Office Order dated 24 July 2004, amendments were
made in the Office Order dated 5 December 2002 thereby
substituting the provision relating to recruitment of Translators
(Ordinary Scale) by the following:
[2024] 12 S.C.R.
35
Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.
"TRANSLATORS
Recruitment shall be made from amongst the
judicial assistants or junior judicial assistants having
experience of 3 years by holding a test in English and
Hindi translation. Candidates shall be given passages
in English from the judgments and records and shall
be asked to translate them into Hindi. Similarly
passages in Hindi from the records or from some
other books etc. shall be given and the candidates
shall be asked to translate them into English.
Minimum qualification shall be Graduate
Preference shall be given to a Law Graduate"
(e) Thereafter, on 8 September 2009, the Office Order dated 5
December 2002 was further amended to substitute the specified
minimum qualification with the following:
"Minimum qualification shall be Post Graduate in
English Literature from any recognized University
established by law in India"
(f)
On 19 December 2009 examination was held. Twenty-one
aspirants appeared in the examination. Result was declared
on 20 February 2010, wherein only 3 candidates were declared
successful. This was so, because the Chief Justice of the
High Court ordered that only those candidates who secured a
minimum of 75% marks will be selected to fill up the posts in
question. As only three candidates could secure a minimum
of 75% marks, the list of successful candidates comprised of
only three candidates.
(g) Some of the unsuccessful candidates filed writ petition before
the High Court questioning the decision of the Chief Justice of
the High Court in fixing the cut off at 75% on the ground that it
amounted to "changing the rules of the game after the game
is played". The High Court on its administrative side defended
the decision of the Chief Justice by claiming it to have been
taken in good faith for appointing a suitable candidate.
(h) The writ petition came to be dismissed by the High Court vide
judgment under appeal dated 11 March 2011. The High Court
36
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took the view that on mere placement in the select list no
indefeasible right accrues to a candidate for appointment. The
employer may fix a higher benchmark to ensure that a person
suitable to the post is appointed.
(i)
On a special leave petition challenging the judgment of the High
Court, while granting leave, vide order dated 20 March 2013,
the matter was referred for an authoritative pronouncement by
a larger Bench of this Court.
RELEVANT EXTRACTS FROM THE REFERENCE ORDER
3.
To have a clear understanding of the scope of the reference, the
relevant paragraphs of the reference order are extracted below:
"5. Admittedly, the requirement of securing the minimum
qualifying marks of 75% is not a stipulation of the Service
Rules (referred to earlier) of the first respondent High
Court as on the date of initiation of the recruitment
process in question (i.e. 17-9-2009). It appears that such
a prescription had existed earlier under the Rules, but by
an amendment, the said prescription was dropped with
effect from 14-7-2004.
6. Therefore, the appellants challenged the selection
process on the ground that the decision of the Chief
Justice to select only those candidates who secured
a minimum of 75% marks would amount to "changing
the rules of the game after the game is played"-a
cliché whose true purport is required to be examined
notwithstanding the declaration of this Court in Manjusree
case [K. Manjusree v. State of A.P. (2008) 3 SCC 512
at p. 524, para 27 : (2008) 1 SCC (L&S) 841] that it is
"clearly impermissible".
7. The question whether the "rules of the game" could be
changed was considered by this Court on a number of
occasions in different circumstances. Such question arose
in the context of employment under the State which under
the scheme of our Constitution is required to be regulated
by "law" made under Article 309 or employment under the
[2024] 12 S.C.R.
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Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.
instrumentalities of the State which could be regulated
either by statute or subordinate legislation. In either case
the "law" dealing with the recruitment is subject to the
discipline of Article 14.
8. The legal relationship between employer and employee
is essentially contractual. Though in the context of
employment under the State the contract of employment is
generally regulated by statutory provisions or subordinate
legislation which restricts the freedom of the employer i.e.
the "State" in certain respects.
9. In the context of the employment covered by the regime
of Article 309, the "law"-the recruitment rules in theory
could be either prospective or retrospective subject of
course to the rule of non-arbitrariness. However, in the
context of employment under the instrumentalities of
the State which is normally regulated by subordinate
legislation, such rules cannot be made retrospectively
unless specifically authorised by some constitutionally
valid statute.
10. Under the scheme of our Constitution an absolute
and non-negotiable prohibition against retrospective
law-making is made only with reference to the creation of
crimes. Any other legal right or obligation could be created,
altered, extinguished retrospectively by the sovereign
law-making bodies. However, such drastic power is
required to be exercised in a manner that it does not
conflict with any other constitutionally guaranteed rights,
such as, Articles 14 and 16, etc. Changing the "rules of
game" either midstream or after the game is played is an
aspect of retrospective law-making power.
11. Those various cases [ (a) C. Channabasavaih v.
State of Mysore, AIR 1965 SC 1293; State of Haryana
v. Subash Chander Marwaha (1974) 3 SCC 220 : 1973
SCC (L&S) 488; P.K. Ramachandra Iyer v. Union of
India (1984) 2 SCC 141 : 1984 SCC (L&S) 214; Umesh
Chandra Shukla v. Union of India (1985) 3 SCC 721 : 1985
38
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SCC (L&S) 919; Durgacharan Misra v. State of Orissa
(1987) 4 SCC 646 : 1988 SCC (L&S) 36 : (1987) 5 ATC
148; State of U.P. v. Rafiquddin, 1987 Supp SCC 401 :
1988 SCC (L&S) 183 : (1987) 5 ATC 257; Maharashtra
SRTC v. Rajendra Bhimrao Mandve (2001) 10 SCC 51 :
2002 SCC (L&S) 720; Pitta Naveen Kumar v. Narasaiah
Zangiti (2006) 10 SCC 261 : (2007) 1 SCC (L&S) 92;
K. Manjusree v. State of A.P. (2008) 3 SCC 512 : (2008) 1
SCC (L&S) 841; Hemani Malhotra v. High Court of Delhi
(2008) 7 SCC 11 : (2008) 2 SCC (L&S) 203; K.H. Siraj
v. High Court of Kerala (2006) 6 SCC 395 : 2006 SCC
(L&S) 1345; Ramesh Kumar v. High Court of Delhi (2010)
3 SCC 104 : (2010) 1 SCC (L&S) 756; Rakhi Ray v. High
Court of Delhi (2010) 2 SCC 637 : (2010) 1 SCC (L&S)
652; Hardev Singh v. Union of India (2011) 10 SCC 121 :
(2012) 1 SCC (L&S) 390 - Where procedural rules were
altered.(b) P. Mahendran v. State of Karnataka (1990) 1
SCC 411 : 1990 SCC (L&S) 163 : (1990) 12 ATC 727;
M.P. Public Service Commission v. Navnit Kumar Potdar
(1994) 6 SCC 293 : 1994 SCC (L&S) 1377 : (1994) 28
ATC 286; Gopal Krushna Rath v. M.A.A. Baig (1999) 1
SCC 544 : 1999 SCC (L&S) 325; Umrao Singh v. Punjabi
University (2005) 13 SCC 365 : 2006 SCC (L&S) 1071;
Mohd. Sohrab Khan v. Aligarh Muslim University (2009)
4 SCC 555 : (2009) 1 SCC (L&S) 917 - Where the
eligibility criteria were altered.] deal with situations where
the State sought to alter (1) the eligibility criteria of the
candidates seeking employment, or (2) the method and
manner of making the selection of the suitable candidates.
The latter could be termed as the procedure adopted for
the selection, such as, prescribing minimum cut-off marks
to be secured by the candidates either in the written
examination or viva voce as was done in Manjusree
[K. Manjusree v. State of A.P. (2008) 3 SCC 512 at
p. 524, para 27 : (2008) 1 SCC (L&S) 841] or the present
case or calling upon the candidates to undergo some
test relevant to the nature of the employment (such as
driving test as was in Maharashtra SRTC [Maharashtra
[2024] 12 S.C.R.
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Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.
SRTC v. Rajendra Bhimrao Mandve (2001) 10 SCC 51 at
pp. 55-56, para 5 : 2002 SCC (L&S) 720] ).
12. If the principle of Manjusree case [K. Manjusree
v. State of A.P. (2008) 3 SCC 512 at p. 524, para 27 :
(2008) 1 SCC (L&S) 841] is applied strictly to the present
case, the respondent High Court is bound to recruit 13
of the "best" candidates out of the 21 who applied
irrespective of their performance in the examination held.
In such cases, theoretically it is possible that candidates
securing very low marks but higher than some other
competing candidates may have to be appointed. In
our opinion, application of the principle as laid down in
Manjusree case [K. Manjusree v. State of A.P. (2008) 3
SCC 512 at p. 524, para 27 : (2008) 1 SCC (L&S) 841]
without any further scrutiny would not be in the larger
public interest or the goal of establishing an efficient
administrative machinery.
13. This Court in State of Haryana v. Subash Chander
Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488]
while dealing with the recruitment of Subordinate Judges
of the Punjab Civil Services (Judicial Branch) had to
deal with the situation where the relevant rule prescribed
minimum qualifying marks. The recruitment was for
filling up of 15 vacancies. 40 candidates secured the
minimum qualifying marks (45%). Only 7 candidates who
secured 55% and above marks were appointed and the
remaining vacancies were kept unfilled. The decision
of the State Government not to fill up the remaining
vacancies in spite of the availability of candidates who
secured the minimum qualifying marks was challenged.
The State Government defended its decision not to fill
up posts on the ground that the decision was taken to
maintain the high standards of competence in judicial
service. The High Court upheld the challenge and issued
a mandamus. In appeal, this Court reversed and opined
that the candidates securing minimum qualifying marks at
an examination held for the purpose of recruitment into the
service of the State have no legal right to be appointed.
In the context, it was held: (Subash Chander Marwaha
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case [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] , SCC
p. 227, para 12)
"12. ... In a case where appointments are
made by selection from a number of eligible
candidates it is open to the Government with a
view to maintain high standards of competence
to fix a score which is much higher than the one
required for more (sic mere) eligibility."
14. Unfortunately, the decision in Subash Chander
Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488]
does not appear to have been brought to the notice of
Their Lordships in Manjusree [K. Manjusree v. State of
A.P. (2008) 3 SCC 512 at p. 524, para 27 : (2008) 1 SCC
(L&S) 841]. This Court in Manjusree [K. Manjusree v. State
of A.P. (2008) 3 SCC 512 at p. 524, para 27 : (2008) 1
SCC (L&S) 841] relied upon P.K. Ramachandra Iyer v.
Union of India [(1984) 2 SCC 141 : 1984 SCC (L&S)
214], Umesh Chandra Shukla v. Union of India [(1985) 3
SCC 721 : 1985 SCC (L&S) 919] and Durgacharan Misra v.
State of Orissa [(1987) 4 SCC 646 : 1988 SCC (L&S) 36].
In none of the cases, was the decision in Subash Chander
Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488]
considered.
15. No doubt it is a salutary principle not to permit the
State or its instrumentalities to tinker with the "rules of
the game" insofar as the prescription of eligibility criteria
is concerned as was done in C. Channabasavaih v. State
of Mysore [AIR 1965 SC 1293], etc. in order to avoid
manipulation of the recruitment process and its results.
Whether such a principle should be applied in the context
of the "rules of the game" stipulating the procedure for
selection more particularly when the change sought is
to impose a more rigorous scrutiny for selection requires
an authoritative pronouncement of a larger Bench of this
Court. We, therefore, order that the matter be placed
before the Hon'ble Chief Justice of India for appropriate
orders in this regard."
(Emphasis supplied)
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SCOPE OF THE REFERENCE
4.
Public services broadly fall in two categories. One, where services
are in connection with the affairs of the State/ Union. Second, where
services are under the instrumentalities of the State. In either category,
law governing recruitment must conform to the overarching principles
enshrined in Articles 14 and 16 of the Constitution.
5.
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. 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.
6.
Cut-off date with reference to which eligibility has to be determined
is the date appointed by the relevant service rules; where no such
cut-off date is provided in the rules, then it will be the date appointed
in the advertisement inviting applications; and if there is no such date
appointed, then eligibility criteria shall be applied by reference to the
last date appointed by which the applications were to be received.8
7.
The law is settled that after commencement of the recruitment
process the eligibility criteria is not to be altered because candidates
even if eligible under the altered criteria might not apply by the
last date under the belief that they are not eligible as per the
advertised criteria.9 Such alteration/ change, therefore, deprives a
person of the guarantee of equal opportunity in matters of public
employment provided by Article 16 of the Constitution. The reference
order therefore acknowledges this legal position and in clear terms
accepts that 'the rules of the game' cannot be changed after
commencement of the recruitment process insofar as the eligibility
criteria is concerned.
8
Shankar K. Mandal v. State of Bihar (2003) 9 SCC 519
9
Mohd. Sohrab Khan v. Aligarh Muslim University and others (2009) 4 SCC 555
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8.
However, in regard to changing the rules of the game qua method
or procedure for selection, the three-Judge Bench in the reference
order doubted the correctness of the decision in K. Manjusree (supra)
inter alia on the ground that it failed to notice an earlier decision
in Subash Chander Marwaha (supra). Accordingly, the reference
order seeks an authoritative pronouncement in that regard from a
larger Bench of this Court. The scope of the reference is therefore
limited to (a) whether K. Manjusree (supra) lays down the correct
law; and (b) whether the rules of the game qua method and manner
of making selection can be changed or altered after commencement
of the recruitment process.
SUBMISSIONS
9.
We have heard a battery of counsels both in support as well as
against the strict applicability of the doctrine. During their arguments,
they have either questioned or supported the decision of the High
Court. For an effective analysis of their submissions and to properly
adjudicate upon the issues which would arise while addressing the
reference, we deem it appropriate to segregate their submissions
into two parts. One which propounds that after commencement of
the recruitment process, the stipulated procedure (i.e., rules of the
game) for selection cannot be changed mid-way, or after the game
is played, and the other which propounds that it is permissible to
change / alter the stipulated procedure or method for selection to
ensure that the most meritorious person, who is suitable for the post,
gets appointed.
SUBMISSIONS AGAINST CHANGE
10. Submissions propounding that 'rules of the game' qua the procedure
for selection must not be changed in the midst of the game, or after
the game is played, are summarised below:
(a) Equality of opportunity in matters of public employment and
fairness in State action are guaranteed by Articles 16 and 14,
respectively, of the Constitution which proscribe a change in
the rules of the game qua selection criteria, once the game has
begun. These rights would be infringed if candidates, otherwise
eligible, are excluded from the zone of consideration based on
a post facto change in the selection criteria.
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Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.
(b) Candidates have a right to know, before the selection process
commences, the standards/ criteria on which they will be
assessed/ evaluated so that they could modulate their level of
preparedness accordingly.
(c)
A change in the advertised cut off marks for eligibility to be
placed in the select list, after the game is played, may seriously
prejudice a candidate on two counts. First, the candidate may not
put in effort more than required for achieving the advertised cut
off marks. Second, the interviewer or evaluator may unknowingly
place the candidate in a non-eligible category while imagining
that he has been placed in an eligible category. Thus a change
in the eligibility cut off, after evaluation is done, denies the
evaluator an opportunity to modulate the marks for placing
the candidate in a category to which he/she, in the view of the
evaluator, is entitled to be placed.
(d) If eligibility cut-off marks is to be prescribed, it should be done
before the test or the interview so that both the examinee and
the examiner are aware as to how many marks would qualify
a candidate for further consideration.
(e) Recruitment to public services must not only be fair but must
appear to be so. A change in the selection criteria mid-way
would create an impression that the State is not acting fairly
and the change is to favour certain individuals. It thus violates
transparency in decision making process, which is fundamental
to rule out arbitrariness, and fosters nepotism.
(f)
Discretion is antithesis to the Rule of law which is the hallmark
of our Constitution. Rule of law suffers when rules of the game
are left to be altered at the discretion of the employer.
(g) K. Manjusree (supra) is not in conflict with Subash Chander
Marwaha (supra). Subash Chander Marwaha proceeds on
the principle that existence of vacancies does not confer a
right to a candidate placed in the select list to be appointed.
K. Manjusree on the other hand deals with a situation where
a candidate is denied placement in the select list only because
after the interviews were over, minimum marks for the interviews,
not prescribed earlier, were prescribed. The two decisions,
therefore, operate in different fields.
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SUBMISSIONS PROPOUNDING CHANGE IS PERMISSIBLE
11. Submissions propounding that change in the selection procedure or
criteria is permissible even in the midst of the recruitment process
are summarised below:
(a) In absence of service rules, or the advertisement, prescribing
or proscribing a cut off, employer has discretion to fix cut-off as
may be considered necessary to appoint a candidate suitable
to the post.
(b) Even if no cut-off is stipulated for eligibility qua placement in
the merit list, the employer may choose to appoint only such
of those from the merit list who are higher than a particular
cut-off and such cut-off may be fixed later. This is so, because
no selected candidate has an indefeasible right to be appointed.
(c)
Considering the nature of the post, cut-off even if not prescribed
by the Rules or the advertisement can be prescribed to appoint
a person suitable to the post. Fixation of such cut-off would not
be deemed arbitrary, as efficiency in service is the paramount
consideration for the employer.
(d) A change in the selection criteria which does not bear on the
merit list but only affects appointment based thereupon, would
not fall foul of either Article 16 or Article 14 of the Constitution
if such a change is in the larger interest of efficiency in the
service.
ANALYSIS
12. To effectively analyse and adjudicate upon the questions referred,
we would divide our discussion into following parts:
(a) When the recruitment process commences and comes to an end;
(b) Basis of the doctrine that 'rules of the game' must not be changed
during the course of the game, or after the game is played;
(c)
Whether the decision in K. Manjusree (supra) is at variance
with earlier precedents on the subject;
(d) Whether the above doctrine applies with equal strictness qua
method or procedure for selection as it does qua eligibility
criteria;
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Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.
(e) Whether procedure for selection stipulated by Act or Rules
framed either under the proviso to Article 30910 of the Constitution
or a Statute could be given a go-bye;
(f)
Whether appointment could be denied by change in the eligibility
criteria after the game is played.
(A) COMMENCEMENT/END OF THE RECRUITMENT PROCESS
13. The process of recruitment begins with the issuance of advertisement
and ends with the filling up of notified vacancies. It consists 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.11
(B) BASIS OF THE DOCTRINE
14. The doctrine proscribing change of rules midway through the game, or
after the game is played, is predicated on the rule against arbitrariness
enshrined in Article 1412 of the Constitution. Article 1613 is only an
10
Article 309. Recruitment and conditions of service of persons serving the Union or a State.-
Subject to the provisions of this Constitution, Acts of the appropriate legislature may regulate the
recruitment, and conditions of service of persons appointed, to public services and posts in connection
with the affairs of the Union or of any State.
Provided that it shall be competent for the President or such person as he may direct in the case of
services and posts in connection with the affairs of the Union, and for the governor of a State or such
person as he may direct in the case of services and posts in connection with the affairs of the State,
to make rules regulating the recruitment, and the conditions of service of persons appointed, to such
services and posts until provision in that behalf is made by or under an Act of the appropriate legislature
under this article, and any rules so made shall have effect subject to the provisions of any such Act.
11
A.P. Public Service Commission v. B. Sarat Chandra (1990) 2 SCC 669; and Rakhi Ray v. High Court of
Delhi (2010) 2 SCC 637
12
Article 14. Equality before law. - The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.
13
Article 16. Equality of opportunity in matters of public employment. - (1) There shall be equality of
opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any
of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class
or classes of employment or appointment to an office under the Government of, or any local or other
authority within, or State or Union territory, any requirement as to residents within that State or Union
territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of
appointments or posts in favor of any backward class of citizens which, in the opinion of the state, is not
adequately represented in the services under the State.
(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of
promotion, with consequential seniority, to any class or classes of posts in the services under the State
in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.
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instance of the application of the concept of equality enshrined in
Article 14. In other words Article 14 is the genus while Article 16 is a
species. Article 16 gives effect to the concept of equality in all matters
relating to public employment. These two articles strike at arbitrariness
in State action and ensure fairness and equality of treatment. They
require that State action must be based on valid relevant principles
alike to all similarly situate and not to be guided by any extraneous
or irrelevant considerations.14 In all its actions, the State is bound to
act fairly, in a transparent manner. This is an elementary requirement
of the guarantee against arbitrary State action which Article 14 of
the Constitution adopts.