TaxTMI 
TaxTMI 
2024 (11) TMI 1555
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....le accepting the salutary principle that once the recruitment process commences the State or its instrumentality cannot tinker with the "rules of the game" insofar as the prescription of eligibility criteria is concerned, wondered whether that should apply also to the procedure for selection. In that context, doubting the correctness of a coordinate Bench decision in K. Manjusree^2 for not having noticed an earlier decision in Subash Chander Marwaha^3, vide order^4 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 Court^5 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 Cour....
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....ed 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. (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 a....
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.... 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 lawmaking 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 lawmaking bodies. However, such drastic power is require....
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....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. Subas....
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....f 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) 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'....
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....ruitment 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 Article....
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.... 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: (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 ....
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....ituate 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 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 publ....
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..... 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 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 OC^20, BC^21, SC^22 and ST^23 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 consoli....
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.... The writ petitions were dismissed by the High Court. Being aggrieved, the writ petitioners preferred SLPs^24 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 diff....
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.... 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 Ramesh Kumar v. High Court of Delhi^25 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 ....
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....t 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 o....
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....nce. 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,....
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....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 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....
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....inimum, 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." After observing as above, in K.H. Siraj (supra), this Court distinguished its earlier decision in P.K. Ramachandra Iyer v. Union of India^30 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 i....
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.... 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 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 po....
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....ps 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 Corporation^36, 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 Potdar^37 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 different posts, certa....
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....(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" candida....
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....ected in the notification of the High. 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 & Anr^41 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 i....
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....ariness; (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/ nonarbitrary 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 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....
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....r, 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 ....