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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2634 OF 2013
[Arising out of SLP (C) No.12406 of 2011]
Tej Prakash Pathak & Others …
Appellants
Versus
Rajasthan High Court & Others … Respondents
WITH
CIVIL APPEAL NO. 2635 OF 2013
[Arising out of SLP (C) No.18102 of 2012]
AND
CIVIL APPEAL NO. 2636 OF 2013
[Arising out of SLP (C) No.20706 of 2011]
O R D E R
Chelameswar, J.
1. Leave granted
“….the rules of the game …. the criteria for selection cannot be altered by the
authorities concerned in the middle or after the process of selection has commenced”
1
“… changing the rules of the game after the game was played …is clearly
impermissible”
2
1 Maharashtra State Road Transport Corporation and Others v. Rajendra Bhimrao Mandve and Others [(2001) 10 SCC 51,
Para 5
2 K. Manjusree v. State of Andhra Pradesh and Another, (2008) 3 SCC 512, Para 27Page 2
2. The above, and statements to the similar effect
have petrified into a rule of law in the context of
employment under the State or its instrumentalities.
Whether such principle of law is immutable, what are
those ‘rules of the game’ which cannot be changed
after the game is either commenced or played, in our
opinion requires an authoritative pronouncement by a
larger Bench of this Court.
3. Such a question arises in the case in hand in the
background of the following facts:-
4. The respondent High Court undertook the
recruitment process for filling up of 13 posts of
Translators by issuing a notification dated 17th
September, 2009. It appears that under the Rajasthan
High Court Staff Service Rules, 2002, “eligible
candidates” are required to appear for a Written
Examination consisting of two papers of translation
from English to Hindi and vice versa carrying 100
marks each followed by a Personal Interview for 50
marks. Page 3
5. 21 candidates appeared for the above-mentioned
examination of whom only three candidates were
declared successful by the first respondent. Three
unsuccessful candidates challenged the said decision of
the High Court by filing a writ petition which came to be
dismissed by the judgment under appeal dated 11th
March, 2010.
6. From the reply filed by the first respondent in the
writ petition as reflected in the judgment under appeal,
it appears that after the examination was conducted,
the Chief Justice ordered that the examination be
treated as a Competitive Examination and only those
candidates who secured a minimum of 75% marks be
selected to fill up the posts in question. In view of the
decision of the Chief Justice, only three candidates were
found suitable for appointment and a list of selected
candidates was accordingly published by the High
Court. This triggered the instant litigation.
7. 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
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respondent High Court as on the date of initiation of the
recruitment process in question (i.e. 17th September,
2009). It appears that such a prescription had existed
earlier under the Rules, but by an amendment, the said
prescription was dropped with effect from 14th July,
2004.
8. 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’s case (supra) that it is “clearly
impermissible”.
9. 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
State which under the scheme of our Constitution is
required to be regulated by “law” made under ArticlePage 5
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.
10. Legal relationship between employer and
employee is essentially contractual. Though in the
context of employment under 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.
11. 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.Page 6
12. Under the Scheme of our Constitution an absolute
and non-negotiable prohibition against retrospective
law making is made only with reference to the creation
of crimes. Any other legal right or obligation could be
created, altered, extinguished retrospectively by the
sovereign law making bodies. However such drastic
power is required to be exercised in a manner that it
does not conflict with any other constitutionally
guaranteed rights, such as, Articles 14 and 16 etc.
Changing the ‘rules of game’ either midstream or after
the game is played is an aspect of retrospective law
making power.
13. Those various cases3
deal with situations where
the State sought to alter 1) the eligibility criteria of the
candidates seeking employment or 2) the method and
3
a). C. Channabasavaih v. State of Mysore [AIR 1965 SC 1293], State of Haryana v. Subash Chander
Marwaha and Others [(1974) 3 SCC 220], P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141] and
Umesh Chandra Shukla v. Union of India [(1985) 3 SCC 721], Durgacharan Misra v. State of Orissa [(1987)
4 SCC 646], State of U.P. v. Rafiquddin and Ors. [1987 Supp. SCC 401], Maharashtra State Road Transport
Corporation v. Rajendra Bhimrao Mandve [(2001) 10 SCC 51], Pitta Naveen Kumar and Others v. Raja
Narasaiah Zangiti and Others [(2006) 10 SCC 261], K. Manjushree v. State of Andhra Pradesh [(2008) 3
SCC 512], Hemani Malhotra v. High Court of Delhi [(2008) 7 SCC 11], K.H. Siraj v. High Court of Kerala
[(2006) 6 SCC 395], Ramesh Kumar v. High Court of Delhi [(2010) 3 SCC 104], Rakhi Ray v. High Court of
Delhi [(2010) 2 SCC 637], Hardev Singh v. Union of India [2011) 10 SCC 121] – Where procedural rules
were altered.
b) P. Mahendran and Others v. State of Karnataka and Others [(1990) 1 SCC 411], Madhya
Pradesh Public Service Commission v. Navnit Kumar Potdar [(1994) 6 SCC 293], Gopal Krishna Rath v.
M.A. A. Baig (Dead) By LRs [(1999) 1 SCC 544], Umrao Singh v. Punjabi University, Patiala and Others
[(2005) 13 SCC 365], Mohd. Sohrab Khan v. Aligarh Muslim University and Others [(2009) 4 SCC 555] –
Where the eligibility criteria altered.
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manner of making the selection of the suitable
candidates. The latter could be termed as the
procedure adopted for the selection, such as,
prescribing minimum cut off marks to be secured by
the candidates either in the written examination or
viva-voce as was done in the case of Manjusree (supra)
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 the case in
Maharashtra State Road Transport Corporation (supra)].
14. If the principle of Manjusree’s case (supra) 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.
15. 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 (supra) without any
further scrutiny would not be in the larger public
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interest or the goal of establishing an efficient
administrative machinery.
16. This Court in the case of the State of Haryana v.
Subash Chander Marwaha and Others [(1974) 3 SCC
220] 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 a 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
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that the candidates securing minimum qualifying marks
at an examination held for the purpose of recruitment
into the service of the State have no legal right to be
appointed.
In the context, it was held:-
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 highstandards of competence to fix a score which is much higher than the one
required for more (sic mere) eligibility…….
17. Unfortunately, the decision in Subash Chander
Marwaha (supra) does not appear to have been brought
to the notice of their Lordships in the case of Manjusree
(supra).
18. This Court in the case of Manjusree (supra) relied
upon P.K. Ramachandra Iyer and Others v. Union of
India and Others [(1984) 2 SCC 141], Umesh Chandra
Shukla v. Union of India and Others [(1985) 3 SCC 721]
and Durgacharan Misra v. State of Orissa and Others
[(1987) 4 SCC 646]. In none of the cases, the decision
in Subash Chander Marwaha (supra) was considered.
19. 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
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criteria is concerned as was done in the case of C.
Channabasavaiah 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.
………..……………………J.
(R.M. Lodha)
………..……………………J.
(J. Chelameswar)
………..……………………J.
(Madan B. Lokur)
March 20, 2013
New Delhi.
