Recruitment criteria for govt jobs can’t be changed midway: Supreme Court

In a significant verdict, the Supreme Court on Thursday, 7 November, held the "rules of the game" for appointment in government jobs cannot be changed midway unless the procedure so permits.

The top court said the ultimate object of any process of selection for entry into public service was to secure the best and the most suitable person for the job, avoiding patronage and favouritism.

Observing candidates in a recruitment process had a legitimate expectation of the selection process being fair and non-arbitrary, a five-judge Constitution bench headed by Chief Justice D.Y. Chandrachud unanimously ruled that placement in the select list gives no indefeasible right to a candidate for appointment to a government job.

"Eligibility criteria for being placed in the select list, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant rules so permit, or the advertisement, which is not contrary to the extant rules, so permit," the bench held.

The bench, also comprising justices Hrishikesh Roy, P.S. Narasimha, Pankaj Mithal and Manoj Misra, said even if the change in eligibility criteria was permissible under the extant rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution (right to equality) and satisfy the test of non-arbitrariness.

It said the doctrine proscribing a change of rules midway through the game, or after the game was played, was predicated on the rule against arbitrariness enshrined in Article 14.

"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," the bench said.

It pointed out that the recruitment process commenced from the issuance of advertisement calling for applications and ended with filling up of vacancies and the recruiting bodies could adopt an appropriate procedure. "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," it said.

Penning a 44-page verdict for the bench, Justice Misra said extant rules having statutory force were binding on the recruiting body, both in terms of procedure and eligibility.

However, where the rules were non-existent or silent, administrative instructions may fill in the gaps, he said.

The bench said placement in the select list gave no indefeasible right to the appointment and the state or its instrumentality for bona fide reasons may choose not to fill up the vacancies.

"However, if vacancies exist, the state or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list,” it said.

The top court added that when a challenge was laid to the state's action with respect to denying appointment to a selected candidate, the burden was on the state to justify its decision.

The top court ruled that the 2008 verdict in K. Manjusree v State of Andhra Pradesh, which was doubted by a three-judge bench in 2013 while referring it to larger bench for authoritative pronouncement, was a good ruling and not in conflict with the 1974 verdict in case of State of Haryana v Subash Chander Marwaha.

The bench said the 1974 verdict dealt with the right to be appointed from the select list whereas the 2008 verdict dealt with right to be placed in the select list.

"The two cases therefore deal with altogether different issues," it said.

It further said, "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."

The bench said if any benchmark was set, then it should be stipulated before the commencement of 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," it said.

The top court said the 2008 verdict did not proscribe setting of benchmarks for various stages of the recruitment process but mandated it should not be set after the stage was over.

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

The top court was answering the question related to the appointment criteria for government jobs, referred to it by a three-judge bench in March 2013.