Supreme Court of India
Tej Prakash Pathak vs Rajasthan High Court on 7 November, 2024
Bench: Pankaj Mithal, Pamidighantam Sri Narasimha, Hrishikesh Roy, Dhananjaya Y. Chandrachud
2024 INSC 847 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.2634 OF 2013
TEJ PRAKASH PATHAK & ORS. … APPELLANT(S)
VERSUS
RAJASTHAN HIGH COURT & ORS. …RESPONDENT(S)
WITH
CIVIL APPEAL NO.2635 OF 2013
CIVIL APPEAL NO.2636 OF 2013
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
Signature Not Verified
the “rules of the game” insofar as the prescription of eligibility
Digitally signed by
SANJAY KUMAR
Date: 2024.11.07
16:21:07 IST
Reason:
criteria is concerned, wondered whether that should apply also
1
UNITED NATIONS HANDBOOK OF CIVIL SERVICE LAWS AND PRACTICES.
Page 1 of 44
CIVIL APPEAL NO.2634 OF 2013
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
Marwaha3, 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.
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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CIVIL APPEAL NO.2634 OF 2013
(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 marksExplanation: 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 marksNote: 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 provisionPage 3 of 44
CIVIL APPEAL NO.2634 OF 2013
relating to recruitment of Translators (Ordinary Scale) by
the following:
“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.
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CIVIL APPEAL NO.2634 OF 2013
(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 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 byPage 5 of 44
CIVIL APPEAL NO.2634 OF 2013
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
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,
Page 6 of 44
CIVIL APPEAL NO.2634 OF 2013
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 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 thePage 7 of 44
CIVIL APPEAL NO.2634 OF 2013
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
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 havePage 8 of 44
CIVIL APPEAL NO.2634 OF 2013
no legal right to be appointed. In the context, it was held:
(Subash Chander Marwaha 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
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CIVIL APPEAL NO.2634 OF 2013
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. 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
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.
Page 11 of 44
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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 quaPage 12 of 44
CIVIL APPEAL NO.2634 OF 2013
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.
(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.
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(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.
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:
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(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:
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(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;
(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
PROCESS10
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.
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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 instance of the
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.
(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which
are reserved for being filled up in that year in accordance with any provision for reservation made under
clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years
and such class of vacancies shall not be considered together with the vacancies of the year in which they
are being filled up for determining the sealing of 50% reservation on total number of vacancies of that year.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office
in connection with the affairs of any religious or denominational institution or any member of the governing
body thereof shall be a person professing a particular religion or belonging to a particular denomination.
(6) Nothing in this article shall prevent the State from making any provision for the reservation of
appointments or posts in favor of any economically weaker sections of citizens other than the classes
Page 17 of 44
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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. A deprivation of
the entitlement of private citizens and private business must
be proportional to a requirement grounded in public interest.15
15. The principle of fairness in action requires that public
authorities be held accountable for their representations.
Good administration requires public authorities to act in a
predictable manner and honour the promises made or
practices established unless there is good reason not to do
so.16
16. 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
mentioned in clause (4) in addition to the existing reservation and subject to a maximum of 10% of the
posts in each category.
14
E. P. Royappa v. State of T.N., (1974) 4 SCC 3.
15
State of Jharkhand v. Brahmputra Metallics Ltd., (2023) 10 SCC 634.
16
Sivanandan CT & Ors. v. High Court of Kerala & Ors., 2023 INSC 709.
Page 18 of 44
CIVIL APPEAL NO.2634 OF 2013
expectation in public law is founded on the principles of
fairness and non-arbitrariness in government dealings with
individuals. It recognises that a public authority’s promise or
past conduct will give rise to a legitimate expectation. This
doctrine is premised on the notion that public authorities,
while performing their public duties, ought to honour their
promises or past practices. The legitimacy of an expectation
can be inferred if it is rooted in law, custom, or established
procedure.17 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 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. While performing a balancing exercise, courts have
to often grapple with the issues of burden and standard of
proof required to dislodge the claim of legitimate expectation.18
17
Sivanandan CT (supra), paragraph 18.
18
Sivanandan CT (supra), paragraph 37.
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CIVIL APPEAL NO.2634 OF 2013
17. In Sivanandan CT19, the Constitution Bench, speaking
through one of us (Dr. D.Y. Chandrachud, CJ), held that for a
public authority to frustrate a claim of legitimate expectation,
it must objectively demonstrate by placing relevant material
before the court that its decision was in the public interest.
This standard is consistent with the principles of good
administration which require that State actions must be held
to scrupulous standards to prevent misuse of public power
and ensure fairness to citizens. It was also highlighted that the
doctrine of legitimate expectation lays emphasis on
predictability and consistency in decision-making which is a
facet of non-arbitrariness. In addition, the Court observed:
“43. The underlying basis for the application of the
doctrine of legitimate expectation has expanded and
evolved to include the principles of good administration.
………. The principles of good administration require that
the decisions of public authorities must withstand the test
of consistency, transparency, and predictability to avoid
being regarded as arbitrary and therefore violative of
Article 14.”(C) K. MANJUSREE IS NOT AT VARIANCE WITH EARLIER
PRECEDENTS
18. In K. Manjusree (supra) the recruitment exercise was
for selection and appointments to the posts of District &
Sessions Judges (Grade II). The extant rules prescribed the
eligibility qualifications but were silent on the procedure for
selection. The manner and method of selection was therefore
to be decided by the High Court for every selection as and
when the vacancies were notified for selection. The vacancies
19
See Footnote 13, paragraph 38.
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CIVIL APPEAL NO.2634 OF 2013
were notified by the State Government. As per the
advertisement for selection a written examination followed by
an interview were to be held. By a resolution dated
30.11.2004, the Administrative Committee of the High Court
resolved to conduct written examination for 75 marks and
interview for 25 marks. It was also resolved that the minimum
qualifying marks for the OC20, BC21, SC22 and ST23 candidates
shall be as prescribed earlier. Following the High Court’s
direction, written examination was held on 30.1.2005, and its
results were declared on 24.2.2005 wherein 83 candidates
were successful. Interviews were held in March 2006.
Thereafter, the marks obtained by those 83 candidates were
aggregated and a consolidated merit list was prepared in the
order of merit on the basis of the aggregate marks. The merit
list inter alia contained marks secured in the written
examinations out of 100; marks secured in the interview out
of 25; and the total marks secured in the written examination
and interview out of 125. Based on that list, the Administrative
Committee approved the selection of ten candidates as per
merit and reservation. However, the Full Court did not agree
with the select list prepared. Consequently, the Chief Justice
constituted a Committee of Judges for preparing a fresh list.
The Committee recommended that in place of 100 marks for
the written examination and 25 marks for the interview, the
candidates should be evaluated with reference to 75 marks for
20
Open Category or Unreserved Category.
21
Backward Class Category.
22
Scheduled Caste Category.
23
Scheduled Tribe Category.
Page 21 of 44
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the written examination and 25 marks for the interview in line
with earlier resolution dated 30.11.2004. The Committee also
recommended that the minimum pass percentage applied for
the written examination to determine the eligibility of the
candidates for appearance in the interview should also be
applied for interview marks, and those who failed to secure
such minimum marks in the interview should be considered
as having failed. Based on the recommendation of the
Committee, the minimum percentage for passing the written
examination (i.e., 50% for OC, 40% for BC, and 35% for SC
and ST) was applied for interview and, therefore, only those
candidates who secured the minimum of 12.5 marks in OC,
10 marks in BC and 8.7 marks in SC and ST were considered
as having succeeded in the interview. As a result, only 31
candidates were found to have qualified both in the written
examination and interview. In consequence, a revised merit
list of only 31 successful candidates was prepared wherein few
candidates, earlier selected, were ousted and few others who
did not find place in the earlier select list gained entry.
However, out of those 31 candidates only 9 were recommended
for appointment.
19. In that factual context, two candidates whose names
found mention in the first list, and who got excluded in the
second list, filed writ petitions by claiming that High Court’s
decision to prepare selection list by prescribing minimum
qualifying marks for the interview was arbitrary and illegal.
They thus sought a direction to the High Court to redraw the
Page 22 of 44
CIVIL APPEAL NO.2634 OF 2013
select list without adopting minimum qualifying marks for the
interview. The writ petitions were dismissed by the High Court.
Being aggrieved, the writ petitioners preferred SLPs24 before
this Court. This Court while granting leave and allowing the
appeal of the writ petitioners held that the High Court, though
was correct in scaling down marks of written examination from
100 to 75, was not legally justified in directing that only those
candidates would be placed in the merit list who obtained such
minimum marks in the interview as was specified by the
Committee. Key observations of this Court in K. Manjusree
(supra) are being extracted below:
“22. … the interview Committee conducted the interviews
on 13.3.2006 … on the understanding that there were no
minimum marks for interviews, that the marks awarded
by them would not by itself have the effect of excluding or
ousting any candidate from being selected, and that marks
awarded by them in the interviews will merely be added to
the written examination marks, for preparation of the
merit list and selection list. We are referring to this aspect,
as the matter of conducting interviews and awarding
marks in interviews, by five members of the interviewing
committee would have been markedly different if they had
to proceed on the basis that there were minimum marks
to be secured in the interview for being considered for
selection and that the marks are awarded by them would
have the effect of barring or ousting any candidate from
being considered for selection. Thus, the entire process of
selection – from the stage of holding the examination,
holding interviews and finalising the list of candidates to
be selected – was done by the Selection Committee on the
basis that there was no minimum marks for the interview.
To put it differently the game was played under the rule
that there was no minimum marks for the interview.
24
Special Leave Petitions.
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CIVIL APPEAL NO.2634 OF 2013
27. …Therefore, introduction of the requirement of
minimum marks for interview, after the entire selection
process consisting of written examination and interview
was completed, would amount to changing the rules of the
game after the game was played which is clearly
impermissible.
33. …We may clarify that prescription of minimum marks
for any interview is not illegal. We have no doubt that the
authority making rules regulating the selection, can
prescribe by rules, the minimum marks both for written
examination and interviews, or prescribe minimum marks
for written examination but not for interview, or may not
prescribe any minimum marks for either written
examination or interview. Where the rules do not prescribe
any procedure, the Selection Committee may also
prescribe the minimum marks, as stated above. But if the
Selection Committee wants to prescribe minimum marks
for interview, it should do so before the commencement of
selection process. If the Selection committee prescribe
minimum marks only for the written examination, before
the commencement of selection process, it cannot either
during the selection process or after the selection process,
add an additional requirement that the candidates should
also secure minimum marks in the interview. What we
have found to be illegal, is changing the criteria after
completion of the selection process, when the entire
selection proceeded on the basis that there will be no
minimum marks for the interview.”
(Emphasis supplied)
20. The discernible ratio in K. Manjusree (supra) is that the
criterion for selection is not to be changed after completion of
the selection process, though in absence of rules to the
contrary the Selection Committee may fix minimum marks
either for written examination or for interview for the purposes
of selection. But if such minimum marks are fixed, it must be
done before commencement of selection process. This view has
been followed by another three-Judge Bench of this Court in
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CIVIL APPEAL NO.2634 OF 2013
Ramesh Kumar v. High Court of Delhi25 wherein the law on
the issue has been summarized thus:
“15. … in case the statutory rules prescribe a particular
mode of selection, it has to be given strict adherence
accordingly. In case, no procedure is prescribed by the
rules and there is no other impediment in law, the
competent authority while laying down the norms for
selection may prescribe for the tests and further specify
the minimum benchmarks for written tests as well as for
viva voce.”
21. What is important in K. Manjusree (supra) is that the
minimum marks for the interview was fixed after the
interviews were over. In that context, it was observed (a) that
the game was played under the rule that there was no
minimum marks for the interview, therefore introduction of
the requirement of minimum marks for interview, after the
entire selection process consisting of written examination and
interview was completed, would amount to changing the rules
of the game after the game was played; and (b) if the
interviewers had to proceed on the basis that there were
minimum marks to be secured in the interview for being
considered for selection and that the marks awarded by them
would have the effect of barring or ousting any candidate from
being considered for selection, the awarding of marks might
have been markedly different. The above observation (b) lends
credence to the submission made before us that a change in
the eligibility cut off, after evaluation is done, denies the
evaluator an opportunity to modulate the marks for placing25
(2010) 3 SCC 104.
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CIVIL APPEAL NO.2634 OF 2013
the candidate in a category to which he/she, in the view of the
evaluator, is entitled to be placed.
22. In the reference order the correctness of the decision in
K. Manjusree has been doubted on two counts: (a) if the
principle laid down in K. Manjushree is applied strictly, the
High Court would be bound to recruit 13 of the “best”
candidates out of the 21 who applied irrespective of their
performance in the examination held, which would not be in
the larger public interest or the goal of establishing an efficient
administrative machinery; and (b) the decision of this Court in
Subash Chander Marwaha (supra) was neither noticed in K.
Manjusree nor in the decisions relied upon in K. Manjusree.
23. Insofar as the first reason to doubt K. Manjusree is
concerned, we are of the view that the apprehension expressed
in the referring order that all selected candidates regardless of
their suitability to the establishment would have to be
appointed, if the principle laid down in K. Manjusree is strictly
applied, is unfounded. Because K. Manjusree does not
propound that mere placement in the list of selected
candidates would confer an indefeasible right on the
empanelled candidate to be appointed. The law in this regard
is already settled by a Constitution Bench of this Court in
Shankarsan Dash26 in the following terms:
“7. It is not correct to say that if a number of vacancies are
notified for appointment and adequate number of26
Shankarsan Dash v. Union of India, (1991) 3 SCC 47, which has been consistently followed. See also All
India SC & ST Employees Association v. A. Arthur Jeen & Others, (2001) 6 SCC 380; M. Ramesh v. Union of
India, (2018) 16 SCC 195; and Rakhi Ray and others v. High Court of Delhi and others, (2010) 2 SCC 637.
Page 26 of 44
CIVIL APPEAL NO.2634 OF 2013
candidates are found fit, the successful candidates acquire
an indefeasible right to be appointed which cannot be
legitimately denied. Ordinarily the notification merely
amounts to an invitation to qualified candidates to apply
for recruitment and on their selection they do not acquire
any right to the post. Unless the relevant recruitment rules
so indicate, the State is under no legal duty to fill up all or
any of the vacancies. However, it does not mean that the
State has the license of acting in an arbitrary manner. The
decision not to fill up the vacancies has to be taken bona
fide for appropriate reasons. And if the vacancies or any of
them are filled up, the State is bound to respect the
comparative merit of the candidates, as reflected at the
recruitment test, and no discrimination can be permitted”.
24. As regards the second reason (i.e., K. Manjusree not
considering earlier decision in Subash Chander Marwaha),
it would be appropriate for us to first examine the facts of
Marwaha’s case. In Subash Chander Marwaha (supra)
against 15 vacancies in Haryana Civil Service (Judicial
Branch) a select list of 40 candidates, who obtained minimum
45% or more marks in the competitive examination, was
prepared. The State Government, however, which was the
appointing authority, made only 7 appointments from
amongst top seven in the select list. Candidates who were
ranked 8, 9 and 13 filed writ petitions in the High Court for a
direction to the State Government to fill up the remaining
vacancies as per the order of merit in the select list. State
Government contested the petitions by claiming that in its
view, to maintain high standards of competence in judicial
service, candidates getting less than 55% marks in the
examination were not suitable to be appointed as subordinate
judges. The High Court allowed the writ petition by taking a
view that the State Government was not entitled to impose a
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CIVIL APPEAL NO.2634 OF 2013
new standard of 55% of marks for selection as that was against
the rule which provided for a minimum of 45% only.
25. After taking note of the relevant extant rules (i.e., Rules
8 and 10)27 this Court allowed State’s appeal with the following
observations:
“10. … The mere fact that a candidate’s name appears in
the list will not entitle him to a mandamus that he be
appointed. Indeed, if the State Government while making
the selection for appointment had departed from the
ranking given in the list, there would have been a
legitimate grievance on the ground that the State
Government had departed from the rules in this respect.
The true effect of Rule 10 …… is that if and when the State
Government propose to make appointments of
Subordinate Judges the State Government (i) shall not
make such appointments by travelling outside the list, and
(ii) shall make the selection for appointments strictly in the
order the candidates have been placed in the list published
in the Government Gazette. In the present case neither of
these two requirements is infringed by the Government.
They have appointed the first seven persons in the list as
Subordinate Judges. Apart from these constraints on the
power to make the appointments, Rule 10 does not impose
any other constraint. There is no constraint that the
Government shall make an appointment of a Subordinate
Judge either because there are vacancies or because a list
of candidates has been prepared and is in existence.
11. It must be remembered that the petition is for a
mandamus. This Court has pointed out in Dr Rai
Shivendra Bahadur v. Governing Body of the Nalanda
College [AIR 1962 SC 1210 : 1962 Supp (2) SCR 144 :
(1962) 2 SCJ 208 : (1962) 1 Lab LJ 247 : (1962) 4 FIR 507.]
that in order that mandamus may issue to compel an
authority to do something, it must be shown that the27
Rule 8. -No candidate shall be considered to have qualified unless he obtains 45% marks in the aggregate
of all the papers and at least 33% marks in the language paper, that is, Hindi (in Devnagri script).
Rule 10.- (i) The result of the examination will be published in the Punjab Government Gazette;
(ii) Candidates will be selected for appointment strictly in the order in which they have been placed by the
Punjab Public Service Commission in the list of those who have qualified under Rule 8;….”Page 28 of 44
CIVIL APPEAL NO.2634 OF 2013
statute imposes a legal duty on that authority and the
aggrieved party has a legal right under the statute to
enforce its performance. Since there is no legal duty on the
State Government to appoint all the 15 persons who are in
the list and the petitioners have no legal right under the
rules to enforce its performance the petition is clearly
misconceived.
12. It was, however, contended by Dr Singhvi on behalf of
the respondents that since Rule 8 ….. makes candidates
who obtained 45% or more in the competitive examination
eligible for appointment, the State Government had no
right to introduce a new rule by which they can restrict the
appointments to only those who have scored not less than
55%. It is contended that the State Government have acted
arbitrarily in fixing 55% as the minimum for selection and
this is contrary to the rule referred to above. The argument
has no force. Rule 8 is a step in the preparation of a list of
eligible candidates with minimum qualifications who may
be considered for appointment. The list is prepared in
order of merit. The one higher in rank is deemed to be more
meritorious than the one who is lower in rank. It could
never be said that one who tops the list is equal in merit
to the one who is at the bottom of the list. Except that they
are all mentioned in one list, each one of them stands on
a separate level of competence as compared with another.
That is why Rule 10(ii) …. speaks of “selection for
appointment”. Even as there is no constraint on the State
Government in respect of the number of appointments to
be made, there is no constraint on the Government fixing
a higher score of marks for the purpose of selection. 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
mere eligibility. As shown in the letter of the Chief
Secretary already referred to, they fixed a minimum of 55%
for selection as they had done on a previous occasion.
There is nothing arbitrary in fixing the score of 55% for the
purpose of selection, because that was the view of the High
Court also previously intimated to the Punjab Government
on which the Haryana Government thought fit to act. That
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CIVIL APPEAL NO.2634 OF 2013
the Punjab Government later on fixed a lower score is no
reason for the Haryana Government to change their mind.
This is essentially a matter of administrative policy and if
the Haryana State Government think that in the interest
of judicial competence persons securing less than 55% of
marks in the competitive examination should not be
selected for appointment, those who got less than 55%
have no right to claim that the selections be made of also
those candidates who obtained less than the minimum
fixed by the State Government. In our view the High Court
was in error in thinking that the State Government had
somehow contravened Rule 8 of …..”
26. A close reading of the judgment in Subash Chander
Marwaha (supra) would disclose that there was no change in
the rules of the game qua eligibility for placement in the select
list. There the select list was prepared in accordance with the
extant rules. But, since the extant rules did not create any
obligation on the part of the State Government to make
appointments against all notified vacancies, this Court opined
that the State could take a policy decision not to appoint
candidates securing less than 55% marks. With that reasoning
and by taking into account that appointments made were of
top seven candidates in the select list, who had secured 55%
or higher marks, this Court found no merit in the petition of
the writ petitioners. On the other hand, in K. Manjusree
(supra), the eligibility criteria for placement in the select list
was changed after interviews were held which had a material
bearing on the select list. Thus, Subash Chander Marwaha
(supra) dealt with the right to be appointed from the select list
whereas K. Manjusree (supra) dealt with the right to be placed
in the select list. The two cases therefore dealt with altogether
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different issues. For the foregoing reasons, in our view, K.
Manjusree (supra) could not have been doubted for having
failed to consider Subash Chander Marwaha (supra).
27. In K. H. Siraj v. High Court of Kerala & Ors.28 the
High Court of Kerala invited applications for appointment to
the post of Munsif Magistrate in the Kerala Judicial Service.
Out of more than 1800 candidates who had applied, 1292
applications were found valid. 118 candidates passed the
written examination. Out of the said candidates, 88 passed the
interview and select list was prepared from amongst these 88
candidates. Candidates who were not selected as they had not
secured the prescribed minimum marks in the interview filed
writ petitions contending that in the absence of specific
legislative mandate prescribing cut-off marks in interviews,
the fixing of separate minimum cut-off marks in the interview
for further elimination of candidates after a comprehensive
written test touching the required subjects in detail, was
violative of the statute. The writ petitions were allowed by a
single judge of the High Court against which intra-court
appeal was filed before division bench of the High Court. The
division bench set aside the order of the learned single judge
against which appeals came before this Court. While
dismissing the appeals upon interpretation of Rule 7 of the
Kerala Judicial Service Rules, 199129, this Court held:
28
(2006) 6 SCC 395.
29
Rule 7.- Preparation of lists of approved candidates and reservation of appointments. – (1) The High Court
of Kerala shall, from time to time, hold examinations, written and oral, after notifying the probable number
of vacancies likely to be filled up and prepare a list of candidates considered suitable for appointment to
category 2. The list shall be prepared after following such procedure as the High Court deems fit and by
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CIVIL APPEAL NO.2634 OF 2013
“50. What the High Court has done by the notification
dated 26.3.2001 is to evolve a procedure to choose the best
available talent. It cannot for a moment be stated that
prescription of minimum pass marks for the written
examination or for the oral examination is in any manner
irrelevant or not having any nexus to the object sought to
be achieved. The merit of a candidate and his suitability
are always assessed with reference to his performance at
the examination and it is a well-accepted norm to adjudge
the merit and suitability of any candidate for any service,
whether it be the Public Service Commission (IAS, IFS, etc)
or any other. Therefore, the powers conferred by Rule 7
fully justified the prescription of the minimum eligibility
condition in Rule 10 of the notification dated 26.3.2001.
The very concept of examination envisaged by Rule 7 is a
concept justifying prescription of a minimum as
benchmark for passing the same. In addition, further
requirements are necessary for assessment of suitability of
the candidate and that is why power is vested in a high-
powered body like the High Court to evolve its own
procedure as it is the best judge in the matter…..
xxx xxx xxx
62. Thus it is seen that apart from the amplitude of the
power under rule 7 it is clearly open for the High Court to
prescribe benchmarks for the written test and oral test in
order to achieve the purpose of getting the best available
talent. There is nothing in the rules barring such a
procedure from being adopted. It may also be mentioned
that executive instructions can always supplement the
rules which may not deal with every aspect of a matter.
Even assuming that Rule 7 did not prescribe any
particular minimum, it was open to the High Court to
supplement the rule with a view to implement them by
prescribing relevant standards in the advertisement for
selection.”
following the rules relating to reservation of appointments contained in Rules 14 to 17 of part 2 of the Kerala
State and Subordinate Services Rules, 1958.
(2) The list consisting of not more than double the number of probable vacancies notified shall be
forwarded for the approval of the Governor. The list approved by the Governor shall come into force from
the date of the approval and shall remain in force for a period of two years or until a fresh approved list is
prepared, whichever is earlier.
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CIVIL APPEAL NO.2634 OF 2013
After observing as above, in K.H. Siraj (supra), this Court
distinguished its earlier decision in P.K. Ramachandra Iyer
v. Union of India30 with the following reasoning:
“65. … In Ramachandra Iyer case Rule 14 (…..) mandated
that the marks at the written test and the oral examination
have to be aggregated and the merit list prepared on the
basis of such aggregation of marks. Therefore, the marks
obtained at the written test and the oral test were both
relevant whatever be the percentage, in the preparation of
the merit list. Nevertheless, the examining board
prescribed minimum for viva voce test and eliminated
those who failed to get the minimum. Resultantly,
candidates who would have found a place in the rank list
based on the aggregate of the marks for the two tests stood
eliminated because they did not get the minimum in the
test. This was contrary to Rule 14 and that was the reason
why the prescription of minimum marks for viva voce test
was held invalid in Ramachandra Iyer case.”
28. The decision in K.H. Siraj (supra) makes it clear that if
the rules governing recruitment provides latitude to the
competent authority to devise its procedure for selection it may
do so subject to the rule against arbitrariness enshrined in
Article 14 of the Constitution. Even K. Manjusree (supra) does
not proscribe fixing minimum marks for either the written test,
or the interview, as an eligibility criterion for selection. What
K. Manjusree (supra) does is to regulate the stage at which it
could be done. This is clear from the decision of this Court in
Hemani Malhotra v. High Court of Delhi.31 In Hemani
(supra) a contention was raised that the decision in K.
Manjusree (supra) should be regarded as per incuriam for not
having noticed earlier decisions in Ashok Kumar Yadav v.
30
(1984) 2 SCC 141.
31
(2008) 7 SCC 11.
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CIVIL APPEAL NO.2634 OF 2013
State of Haryana32 as well as K.H. Siraj (supra). Rejecting
the contention, this Court observed:
“16. … what is laid down in the decisions relied upon by
the learned counsel for the respondent is that it is always
open to the authority making the rules regulating the
selection to prescribe the minimum marks both for
examination and interview. The question whether
introduction of the requirement of minimum marks for
interview after the entire selection process was completed
was valid or not, never fell for consideration of this Court
in the decisions referred to by the learned counsel for the
respondent. While deciding the case of K Manjusree the
Court noticed the decisions in P K Ramachandra Iyer v.
Union of India, Umesh Chandra Shukla v. Union of India
and Durgacharan Misra v. State of Orissa, and has
thereafter laid down the proposition of law….. . On the
facts and in the circumstances of the case this Court is of
the opinion that the decisions rendered by this court in K.
Manjusree can neither be regarded as judgment per
incuriam nor good case is made out by the respondent for
referring the matter to the larger Bench for reconsidering
the said decision.”
29. The ultimate object of any process of selection for entry
into a public service is to secure the best and the most suitable
person for the job, avoiding patronage and favoritism.
Selection based on merit, tested impartially and objectively, is
the essential foundation of any useful and efficient public
service. So, open competitive examination has come to be
accepted almost universally as the gateway to public
services.33 It is now well settled that while a written
examination assesses a candidate’s knowledge and
intellectual ability, an interview test is valuable to assess a
candidate’s overall intellectual and personal qualities. While
32
(1985) 4 SCC 417.
33
Lila Dhar v. State of Rajasthan and others, (1981) 4 SCC 159 paragraph 4.
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CIVIL APPEAL NO.2634 OF 2013
written examination has certain distinct advantages over the
interview test there are yet no written tests which can evaluate
a candidate’s initiative, alertness, resourcefulness,
dependableness, cooperativeness, capacity for clear and
logical presentation, effectiveness in discussion, effectiveness
in meeting and dealing with others, adaptability, judgment,
ability to make decision, ability to lead, intellectual and moral
integrity.34 Thus, the written examination assesses the man’s
intellect and the interview test the man himself and “the twain
shall meet” for a proper selection.35
30. What is clear from above is 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. 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
34
See paragraph 5 of Lila Dhar (supra)
35
See paragraph 6 of Lila Dhar (supra)
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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 decision in K. Manjusree (supra) 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.
(D) RULE DOES NOT APPLY WITH EQUAL STRICTNESS TO
STEPS FOR SELECTION
31. As already noticed in Section (A), 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.
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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.
32. To elucidate the above proposition we shall notice few
instances where the procedure devised by the recruiting body
has been approved by this Court. In Santosh Kumar
Tripathi v. U.P. Power Corporation36, this Court was
required to consider whether the Rule enabling Service
Commission to examine, interview, select and recommend
suitable candidates would include power to hold written
examination. This Court accepted the High Court’s view that
power to ‘examine’ would include holding of written
examination.
33. In M.P. Public Service Commission v. Navnit Kumar
Potdar37 the question which arose before this Court was as to
whether in the process of short-listing, the Commission has
altered or substituted the criteria or the eligibility of a
candidate to be considered for being appointed against the
post of Presiding Officer, Labour Court. In that context it was
observed:
“6. … It may be mentioned at the outset that whenever
applications are invited for recruitment to the different36
(2009) 14 SCC 210.
37
(1994) 6 SCC 293.
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posts, certain basic qualifications and criteria are fixed
and the applicants must possess those basic qualifications
and criteria before their applications can be entertained for
consideration. The Selection Board or the Commission has
to decide as to what procedure is to be followed for
selecting the best candidates from amongst the applicants.
In most of the services, screening tests or written tests
have been introduced to limit the number of candidates
who have to be called for interview. Such screening tests
or written tests have been provided in the concerned
statutes or prospectus which govern the selection of the
candidates. But where the selection is to be made only on
basis of interview, the Commission or the Selection Board
can adopt any rational procedure to fix the number of
candidates who should be called for interview. It has been
impressed by the courts from time to time that where
selections are to be made only on the basis of interview,
then such interviews/viva voce tests must be carried out
in a thorough and scientific manner in order to arrive at a
fair and satisfactory evaluation of the personality of the
candidate.”
34. Likewise in Union of India v. T. Sundararaman38
where the eligibility conditions referred to a minimum of 5
years’ experience, the selection committee was held justified in
shortlisting those candidates with more than 7 years’
experience having regard to the large number of applicants
compared to the vacancies to be filled. The relevant
observations are being extracted below:
“4. ….Note 21 to the advertisement expressly provides
that if a large number of applications are received the
Commission may shortlist candidates for interview on the
basis of higher qualifications although all applicants may
possess the requisite minimum qualifications. In the case
of M.P. Public Service Commission v. Navnit Kumar
Potdar [(1994) 6 SCC 293 : 1994 SCC (L&S) 1377 : (1994)
28 ATC 286 : JT (1994) 6 SC 302] this Court has upheld
shortlisting of candidates on some rational and reasonable
basis. In that case, for the purpose of shortlisting, a longer
period of experience than the minimum prescribed was
used as a criterion by the Public Service Commission for38
(1997) 4 SCC 664.
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calling candidates for an interview. This was upheld by
this Court. In the case of Govt. of A.P. v. P. Dilip
Kumar [(1993) 2 SCC 310 : 1993 SCC (L&S) 464 : (1993)
24 ATC 123 : JT (1993) 2 SC 138] also this Court said that
it is always open to the recruiting agency to screen
candidates due for consideration at the threshold of the
process of selection by prescribing higher eligibility
qualification so that the field of selection can be narrowed
down with the ultimate objective of promoting candidates
with higher qualifications to enter the zone of
consideration. The procedure, therefore, adopted in the
present case by the Commission was legitimate….”
35. Similarly, in Tridip Kumar Dingal v. State of W.B.39
it was held that shortlisting is permissible on the basis of
administrative instructions provided the action is bona fide
and reasonable. The relevant observations in the judgment are
extracted below:
“38. … The contention on behalf of the State Government
that written examination was for shortlisting the
candidates and was in the nature of “elimination test” has
no doubt substance in it in view of the fact that the records
disclose that there were about 80 posts of Medical
Technologists and a huge number of candidates,
approximately 4000 applied for appointment. The State
authorities had, therefore, no other option but to “screen”
candidates by holding written examination. It was
observed that no recruitment rules were framed in exercise
of the power under the proviso to Article 309 of the
Constitution and hence no such action could be taken. In
our opinion, however, even in absence of statutory
provision, such an action can always be taken on the basis
of administrative instructions—for the purpose of
“elimination” and “shortlisting” of huge number of
candidates provided the action is otherwise bona fide and
reasonable.”
36. Another example is in respect of fixing different cutoffs
for different subjects having regard to the relative importance
39
(2009) 1 SCC 768.
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of the subjects and their degree of relevance.40 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.
(E) PROCEDURE PRESCRIBED IN THE EXTANT RULE NOT
TO BE VIOLATED
37. In Sivanandan C.T. (supra) the issue before the
Constitution Bench was whether for selection minimum marks
could be prescribed contrary to the extant rules and the
advertisement. Answering in the negative, the Constitution
Bench, speaking through one of us (Dr. D.Y. Chandrachud,
CJ), held:
“15. The Administrative Committee of the High Court
decided to impose a cut off for the viva-voce examination
actuated by the bona fide reason of ensuring that
candidates with requisite personality assume judicial
office. However laudable that approach of the
Administrative Committee may have been, such a change
would be required to be brought in by a substantive
amendment to the rules which came in much later as
noticed above. This is not a case where the rules of the
scheme of the High Court were silent. Where the statutory
rules are silent, they can be supplemented in a manner
consistent with the object and spirit of the Rules by an
administrative order.
16. In the present case, the statutory rules expressly
provided that the select list would be drawn up on the
basis of the aggregate marks obtained in the written
examination and the viva-voce. This was further
elaborated in the scheme of examination which prescribed
that there would be no cut off marks for the viva- voce.
This position is also reflected in the notification of the High
40
Banking Service Recruitment Board, Madras v. V. Ramalingam, (1998) 8 SCC 523.
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Court dated 30 September 2015. In this backdrop we have
come to the conclusion that the decision of the High Court
suffered from its being ultra vires the 1961 Rules besides
being manifestly arbitrary.”
38. Following Sivanandan CT (supra), a three-Judge
Bench of this Court in Salam Samarjeet Singh v. The High
Court of Manipur at Imphal & Anr41 held:
“31. … Prescribing minimum marks for viva-voce segment
may be justified for the holistic assessment of a candidate,
but in the present case such a requirement was introduced
only after commencement of the recruitment process and
in violation of the statutory rules. The decision of the Full
Court to depart from the expected exercise of preparing the
merit list as per the unamended rules is clearly violative of
the substantive legitimate expectation of the petitioner. It
also fails the tests of fairness, consistency and
predictability and hence is violative of Article 14 of the
Constitution of India.”
39. There can therefore be no doubt that 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.
(F) APPOINTMENT MAY BE DENIED EVEN AFTER
PLACEMENT IN SELECT LIST.
40. In Section (C) above, we have already noticed the
Constitution Bench decision of this Court in Shankarsan Das
(supra) where it was held:
41
2024 INSC 647.
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“Unless the relevant recruitment rules so indicate, the
State is under no legal duty to fill up all or any of the
vacancies. However, it does not mean that the State has
the license of acting in an arbitrary manner. The decision
not to fill up the vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies or any of them
are filled up, the State is bound to respect the comparative
merit of the candidates, as reflected at the recruitment
test, and no discrimination can be permitted.”
41. Thus, in light of the decision in Shankarsan Das
(supra), a candidate placed in the select list gets no
indefeasible right to be appointed even if vacancies are
available. Similar was the view taken by this Court in Subash
Chander Marwaha (supra) where against 15 vacancies only
top 7 from the select list were appointed. 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.
CONCLUSIONS
42. We, therefore, answer the reference in the following
terms:
(1) Recruitment process commences from the
issuance of the advertisement calling for applications and
ends with filling up of vacancies;
(2) Eligibility criteria for being placed in the Select
List, notified at the commencement of the recruitmentPage 42 of 44
CIVIL APPEAL NO.2634 OF 2013
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;
(3) The decision in K. Manjusree (supra) lays down
good law and is not in conflict with the decision in Subash
Chander Marwaha (supra). Subash Chander Marwaha
(supra) deals with the right to be appointed from the Select
List whereas K. Manjusree (supra) deals with the right to
be placed in the Select List. The two cases therefore deal
with altogether different issues;
(4) 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.
(5) 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;
(6) Placement in the select list gives no indefeasible
right to appointment. The State or its instrumentality for
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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.
43. Let the appeals be placed before appropriate Bench for
decision in terms of the answers rendered above, after
obtaining administrative directions from Hon’ble the Chief
Justice.
…………………………………………CJI.
(Dr. Dhananjaya Y. Chandrachud)
…….……………………………………..J.
(Hrishikesh Roy)
…….……………………………………..J.
(Pamidighantam Sri Narasimha)
…………………………………………..J.
(Pankaj Mithal)
…..……………………………………..J.
(Manoj Misra)
New Delhi;
November 7, 2024
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