Altering Rules on Appointment to Public Posts | Judgement Summary
Altering Rules on Appointment to Public PostsJudges: D.Y. Chandrachud CJI, Hrishikesh Roy J, P.S. Narasimha J, Pankaj Mithal J, Manoj Misra J
On 7 November 2024, a five-judge bench led by Chief Justice D.Y. Chandrachud unanimously held that the ‘rules of the game’ cannot be changed midway after the process of appointment to public posts has already begun.
The judgement, authored by Justice Manoj Misra on behalf of himself, CJI Chandrachud and Justices Hrishikesh Roy, P.S. Narasimha and Pankaj Mithal, affirmed that candidates are not subjected to unforeseen changes during the public recruitment process. It observed that any change in the middle of an employment process may deprive a person of “equality of opportunity in matters of public appointment”.
Background
The case arose from the Rajasthan High Court, where the recruitment rules for 13 translator posts were alleged to have been altered after the process had kicked off. The appointments were governed by The Rajasthan High Court Staff Service Rules, 2002. When the Rules were first put in place in 2002, they included a stipulation that only candidates who scored an aggregate of 75 percent marks and above on the translation test would qualify for an interview. However, an amendment to the Rules in 2004 had done away with the cut-off. In the 2009 examination for the translator posts, the Court announced that only three out of 21 candidates qualified because the Chief Justice of the High Court had ordered a 75 percent cut-off in the written examination to qualify for selection.
Three of the disqualified candidates challenged this change in the Rajasthan High Court stating that this violated their right to equality under Article 14 as it amounted to “changing the rules of the game after the game is played”. However, the Rajasthan High Court dismissed this plea. An appeal was filed in the Supreme Court in 2011. The appellants relied on K. Manjusree v State of Andhra Pradesh (2008) where the Supreme Court held that changing the rules was impermissible. The Rajasthan High Court referred to the Supreme Court’s decision in State of Haryana v Subhash Chander Marwaha (1973) which held that state governments can impose higher cut-off marks in order to maintain a high standard for selecting candidates. The case was referred to a larger bench of five judges due to the conflicting rulings.
On 30 August 2022, a five-judge Bench led by Justice Indira Banerjee heard the case for a single day. However, it was adjourned to a later date due to the retirement of Justices Banerjee and Hemant Gupta who was also on the Bench.
On 26 June 2023, the matter was listed again. It was heard over a course of three days in July 2023.
Issues discussed:
- Does the doctrine of ‘changing the rules’ have a strict application on both eligibility and selection criteria?
- Can appointments be denied due to a change in eligibility criteria?
- Did K. Manjusree v State of Andhra Pradesh deviate from established precedents?
The contentions
The appellants’ submissions were based around infringement of their equality rights, their right to clarity and a fair notice before a change in rule, the impact of changing eligibility criteria post-evaluation, the importance of transparency, and how “discretion is antithesis to the rule of law which is the hallmark of our Constitution.”
The respondents, propounding that change is permissible, advocated for flexibility and discretion in recruitment for employers and argued that changes in selection criteria of appointments do not violate any constitutional rights “if such a change is in the larger interest of efficiency in the service.”
Doctrine of “changing the rules” not strictly applicable in the selection process
The Bench observed that the doctrine of “rules of the game” is on the basis of the rules “against arbitrariness” found under Article 14. Article 16, an extension of Article 14, gives effect to equality in matters relating to public employment.
The judgement relied on the doctrine of legitimate expectation where candidates participating in the recruitment process have an expectation that the process of selection will be fair and non-arbitrary. The expectation may be created due to the past conduct of the recruiting authority. However, legitimate expectation does not prevent the recruiting authority from moving away from their standard policy. They can take “diverse factors, concerns and interests” into consideration before a policy decision.
The employer can modify selection policies if there is a “compelling” public interest. However, the changes must adhere to constitutional mandates. It should be “transparent, non-discriminatory/non-arbitrary and having a rational nexus to the object sought to be achieved.” Therefore, a person with an experience of more than seven years can be selected even though the eligibility criteria prescribed a minimum experience of five years, as held in Union of India v T. Sundararaman (1997). The selection criteria can be flexible as long as the process is transparent and rational. A degree of discretion is necessary for the employer to select “a person most suitable for the post”.
Moreover, a candidate who has been shortlisted does not have an “indefeasible right to be appointed.” This is also applicable to instances when there are vacancies available. While the employer is not obligated to fill every vacancy, its decision to do so must respect the merit order. However, selection cannot be denied on arbitrary grounds. The “burden is on the State to justify” its decision to not appoint a candidate from the ‘select list’ or shortlist.
Eligibility criteria to be prescribed beforehand
The eligibility criteria for being placed in the select list cannot be altered after the recruitment process begins. The employer can set “benchmarks” at different stages of the recruitment process. For example, the initial benchmark can be cut-off marks at the stage of written examination followed by different benchmarks in the interview round.
However, the benchmarks should be “stipulated before the commencement of the recruitment process.” If the extant rules of the process permit the employer to set benchmarks, then “such benchmarks may be set any time before that stage” as the candidate is not “taken by surprise.”
Upholding K. Manjusree, the Court observed that the precedent emphasised that any post-recruitment modifications violate the candidates’ rights to equal opportunity. The extant rules or the advertisement of the post may also permit an alteration in the eligibility criteria but such alteration should also meet the requirement of Article 14 and “satisfy the test of non-arbitrariness.”
No deviation from the law by K. Manjusree
The reference order to the five-judge bench suggested that K. Manjusree was in conflict with Subash Chander Marwaha. The present judgement observed that while K. Manjusree dealt with the right to be included in the select list i.e. the eligibility criteria, Subash Chander Marwaha dealt with the right to be appointed after being included in the Select List.
By addressing the specific issue of eligibility, the present judgement clarified the doctrine rather than deviating from existing jurisprudence.