Altering Rules on Appointment to Public Posts | Day 3: Bench Reserves Case for Judgement

The Selection Process Must Not Only Be Fair But Must Also Appear to Be Fair

Adv. Haripriya Padmanabhan shouldered a heavy load of arguments today. She argued that for a selection process to be reasonable and non-arbitrary, the candidates and employers must know the rules that govern it beforehand. She claimed that a fair process is one that leaves no room for suspicion. 

She clarified that the state can either fix a cut-off or shortlist candidates to ensure that only the most suitable candidates are appointed. But, this could only be done at the appointment stage after the merit list of selected candidates has been published. Even this discretion of the State was not absolute. It has to be within the contours of reasonableness. To this end, she proposed the following recommendations to ensure transparency in the selection process:

1. As a rule, the criteria for the selection of candidates must not be altered after the process has commenced. 
2. Any alterations to the criteria should be treated as exceptions to the rule. They must be published in writing and informed to the candidates before the process. 
3. The reasons for the alterations must be clearly disclosed in writing to ensure that they have not been made to favour certain candidates. 
4. Any alterations to the appointment process must be published before the merit list of selected candidates is out. This would ensure that there is no partiality or favouritism at play. 
5. The merit order must be followed when appointing candidates. A person with a lower merit rank cannot be appointed over a person with a higher rank. 

Lessons from Previous Cases

Padmanabhan drew the Bench’s attention to a series of case laws on the matter of changing the rules. These included State of Haryana v Subhash Chander Marwaha (1973), Umesh Chandra Shukla v Union of India (1985) and  K. Manjusree v State of Andhra Pradesh (2008) Sureshkumar Lalitkumar Patel vs The State Of Gujarat (2023). She pointed out that these cases had different versions of criteria alterations. 

In one the Rules were silent on modifications of criteria and the notification allowed it. In some, the Rules allowed modification and the notification prohibited any change. In some cases, the Rules deny modification, but the advertisement of the State allows it. 

Therefore, there were many different ways in which the conflicts were and can be created. In order to ensure complete transparency, Padmanabhan recommended that if selection criteria were to be modified, both, the rules governing the selection process as well as the advertisement/notification calling for applications must allow such modification of the criteria. 

No Conflict Between the Court’s Previous Decisions

Adv. Raghenth Basant debunked the questions raised in the lead petition—Tej Prakash (2013) about conflicting Judgements in State of Haryana v Subhash Chander Marwaha (1973), Umesh Chandra Shukla v Union of India (1985) and  K. Manjusree v State of Andhra Pradesh (2008). 

He claimed that the Bench in Umesh Chandra (1985) and Manjushree (2008), rules were altered at the selection stage before the merit list was published. This resulted in many deserving candidates not qualifying at the selection stage itself. This was arbitrary and unconstitutional as held by the Court. 

On the other hand, in Marawaha (1973) and Tej Prakash (2013) the issue was shortlisting selected candidates and appointing them after the merit list of selected candidates was published. The Court held that this was not wrong as the State had the discretion to ensure that only the most suitable persons were appointed. 

Therefore, the Bench in Tej Prakash (2013) was wrong to state that there was a conflict in the judgements of these cases as they dealt with completely different facts.

Balancing the Pleasure Doctrine

After clarifying that the Court’s judgements in previous cases were not in conflict with each other, Raghenth proposed the following suggestions to make the selection process more transparent: 

1. Any change in the rules at any stage of the selection process (merit list, the viva voce or the aggregate scores) must be notified at the very beginning of the process when the advertisement inviting applications is published. 
2. In the event that such a prior disclosure is not possible, then the change of rules must be notified with reasons before each stage of the process has commenced. 
3. If the advertisement stated that the candidates would be selected after an aggregate score of the written and viva rounds, then the rules cannot be altered at a later stage to make selections on the basis of only one of them.

Justice P.S. Narasimha remarked that this was the way to balance the Pleasure Doctrine. This doctrine essentially allows the State to set-aside contractual obligations and procedural rules in order to ensure only the most suitable persons are appointed for public posts. 

Eligibility v Suitability

Adv. Kuriakose Varghese in his propositions submitted that there was a distinction between eligibility and suitability. Eligibility was to ensure that no deserving candidates were left out of the merit list. Suitability came at a later stage to ensure only the best were appointed.

He stated that rules at an eligibility level had to be prescribed in writing by the advertisement or the Rules governing the posts. The criteria could not be altered based on ‘silent interpretations’ of the Rules. In other words, something directly prohibited by the rules could not be done indirectly.

Adding to the recommendations made by advocates Padamnabhana and Basant, he recommended an ADR system to be formed at each High Court to tackle such issues in the future. 

The Bench also heard submissions from advocates. Ritu Bharadwaj, P.V. Dinesh, Vijay Hansaria and received a written note from Additional Solicitor General K.M. Nataraj and reserved judgement in the case.