2024 INSC 763 SLP (Civil) No. 7257 of 2023 & Ors. Page 1 of 19

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2024

[Arising out of SLP (Civil) No. 7257 of 2023]

SHASHI BHUSHAN

PRASAD SINGH

...APPELLANT(S)

VERSUS

THE STATE OF BIHAR

AND OTHERS

...RESPONDENT(S)

WITH

CIVIL APPEAL NO. OF 2024

[Arising out of SLP (Civil) No. 8967 of 2023]

CIVIL APPEAL NO. OF 2024

[Arising out of SLP (Civil) No. 10359 of 2023]

CIVIL APPEAL NO. OF 2024

[Arising out of SLP (Civil) No. 18369 of 2023]

CIVIL APPEAL NO. OF 2024

[Arising out of SLP (Civil) No. 22215 of 2023]

SLP (Civil) No. 7257 of 2023 & Ors. Page 2 of 19

J U D G M E N T

SATISH CHANDRA SHARMA, J.

1. Leave Granted.

2. The present batch of appeals arise out of judgement dated

16.02.2023, passed by the High Court of Judicature at Patna in

Civil Writ Jurisdiction Case No. 3411/2022 (‘CWJC’) along

with other connected matters (the ‘Impugned Order’), whereby

the Writ Petitioners who were the unsuccessful candidates in the

Recruitment Process conducted pursuant to the Advertisement

dated 08.03.2019 for the post of Junior Engineer (Civil), had

challenged the vires of Rule 9(1)(ii) of the Bihar Water Resources

Department Subordinate Engineering (Civil) Cadre Recruitment

(Amendment) Rules 2017, published vide notification dated

07.11.2017, prescribing technical qualification eligibility for

selection/appointment to the technical post in the State of Bihar.

The appellants before this Court are the successful candidates in

the said Recruitment Process.

3. The present matter begins with the issuance of

Advertisement No. 01/2019 dated 08.03.2019 by the Bihar

Technical Service Commission (‘BTSC’) inviting applications

for 6,379 vacancies to the post of Junior Engineer across various

state departments (the ‘Advertisement’). The Advertisement

SLP (Civil) No. 7257 of 2023 & Ors. Page 3 of 19

specified that the educational qualification required for the post

of Junior Engineer (Civil) as under:

“Educational Eligibility.

a) Junior Engineer (Civil)

i. Diploma-in-Civil Engineering conferred by the

concerned Technical Educational Council/University

recognised by All India Council of Technical Education,

New Delhi.

ii. Diploma-in-Civil Engineering through non-

distance mode conferred by the concerned Deemed

University established under the UGC Act provided the

Deemed University is duly approved by the University

Grants Commission for the said Course.”

It is pertinent to note that this requirement is drawn from

and is identical to Rule 9(1)(iii) of the Bihar Water Resources

Department Subordinate Engineering (Civil) Cadre Recruitment

Rules, 2015 (the ‘Rules’) as amended in 2017.

4. The private Respondents in the present appeal were the

Writ Petitioners before the High Court. They were all applicants

who possessed a Diploma from Private Universities/Institutions

established by statute and approved by the University Grants

Commission. Their applications were found ineligible by the

BTSC on the ground that their institutions were not approved by

the All-India Council of Technical Education (‘AICTE’).

Aggrieved, they approached the High Court seeking the quashing

of Rule 9(1)(iii) of the Rules as being inconsistent with other

SLP (Civil) No. 7257 of 2023 & Ors. Page 4 of 19

statutory provisions and judgement of the Apex Court in

Bharathidasan University & Anr. vs. AICTE & Ors. 2001 (8)

SCC 676 wherein, on an interpretation of the provisions of the

All-India Council of Technical Education Act 1987, it was held

that Universities are excluded from the purview of technical

institutions and are thus not required to obtain approvals from the

AICTE before introducing technical courses/programs.

5. The Writ Petitioners relied on public notice dated

09.02.2022 issued by the AICTE, to the VCs of all Central/State

and Private Universities about AICTE approval for 2022-23,

stating as follows:

“Dear Sir/Madam,

lt is intimated that Hon’ble Supreme Court of India in

case of Bharathidasan University & Another Vs AICTE

& Others has interpreted the provisions of the AICTE

Act and has held that university do not require prior

approval of AICTE to commence a new department of

course and programmes in technical education.

Universities have obligation or duty to conform to the

standards and norms laid down by the AICTE. For the

purpose of ensuring coordinated and integrated

development of technical education and maintenance of

standards, AICTE may cause an inspection of the

university, which has to be as per the provisions under

relevant rules/regulations of the AICTE. Further, all

affiliated institutions running technical education

programmes requires prior approval of AICTE.

However, it has been observed that some of the Central

/ State / Private Universities are taking partial approval

of AICTE for some selected Technical Courses /

SLP (Civil) No. 7257 of 2023 & Ors. Page 5 of 19

Programmes, which is creating confusion among the

stakeholders.

Therefore, AICTE decided that no partial approval of

technical courses will be given to Universities in order

to avoid confusion among stakeholders.

Accordingly, all universities are hereby informed that

either they take full approval of all technical courses,

or they can continue without approval of AICTE.”

6. It is relevant to note that the stand of the Writ Petitioners

was reinforced by the AICTE before the High Court, as made

explicit by their Counter Affidavit dated 12.05.2022, which read

as under:

“8. That so far the statements made in paragraph no.

15 of the writ petition concern it is submitted that

AICTE vide its public notification for approval process

2021-22 had categorically clarified that the

central/state public private universities are not required

to take approval of the AICTE for technical programs

except ODL and online courses. This position has also

been confirmed in the public notice issued for approval

process 2022-23…………..”

7. At this stage, it is apposite to observe that prior to the filing

of CWJC No. 3411/2022, the High Court was already hearing

several analogous writs challenging different provisions of the

Rules as applicable to the selection process under the

Advertisement. Accordingly, vide order dated 02.05.2019 passed

in CWJC No. 9887/2019, the BTSC was permitted to continue

the selection process, with the results to be kept in a sealed cover,

SLP (Civil) No. 7257 of 2023 & Ors. Page 6 of 19

pending the outcome of the proceedings. This order was later

modified vide order dated 06.12.2019 in CWJC No. 21651/2018

whereby the High Court allowed the selection process to be

completed but directed that all orders of appointments must state

that appointments are subject to the outcome of the writ petitions

and therefore, the selected candidates cannot claim any equity.

8. Accordingly, on 02.04.2022, the BTSC published its

selection list for the posts advertised under the Advertisement

(‘Select List’) and the selected candidates were also allotted to

specific departments. In compliance with the aforenoted interim

orders, the Select List reproduced the directions given by the

Court in order dated 06.12.2019 and explicitly stated that the

Select List shall be affected in light of the final order in the

pending proceedings.

9. Thereafter, in a separate analogous writ proceeding being

CWJC No. 7312/2021, vide order dated 19.04.2022, Rule 4(A)

of the Rules which granted 40% institutional reservation to

diploma holders from State-run Polytechnic Institutes was found

to be arbitrary and unreasonable. Consequently, Select list

prepared in terms of Rule 4(A) was set aside and the BTSC was

directed to prepare a fresh select list granting 40% institutional

reservation to diploma holders from any polytechnic institute,

SLP (Civil) No. 7257 of 2023 & Ors. Page 7 of 19

recognized by the AICTE and affiliated with the State Board of

Technical Institutions, Bihar and located within the State.

10. Following this, the BTSC proceeded to finalise the merit

list under the Advertisement but were directed by the High Court

vide order 01.12.2022 in CWJC No. 7761/2022 to withhold the

declaration of results until leave is granted by the Court. A list

was prepared on 19.12.2022, put under sealed cover and

permission of the Court was sought by filing an interlocutory

application in CWJC No. 7761/2022 (the ‘Final Select List’).

The hearing of the application was adjourned after the Advocate

General informed the Court that the State Government was

contemplating a review of the entire process.

11. On 25.01.2023, the Govt. of Bihar convened a high-level

meeting of Secretaries from different works departments to

consider the legal issues emerging from the numerous pending

litigations against the Rules and the Advertisement and the

consequent 4-year delay in appointments. A decision was taken

inter alia to cancel the appointment process under the

Advertisement and to initiate approval for the amended Rules.

12. Once the decision dated 25.01.2023 was brought on record

before the High Court, the State Govt. was permitted to

implement its decisions dated 25.01.2023 and the Court

concluded that nothing remained in the matter. Accordingly,

SLP (Civil) No. 7257 of 2023 & Ors. Page 8 of 19

CWJC No. 3411/2022 and all other analogous writs were

disposed of in the following manner:

“In the instant writ petitions, petitioners have prayed

for the following relief/reliefs:

i. For quashing of Rule 9(1)(ii) of Rules

“Bihar Water Resources Department

Subordinate Engineering (Civil) Cadre

Recruitment (Amendment) Rules, 2017

contained in Notification no. 3950 dated

07.11.2017 prescribing technical

qualification eligibility for

selection/appointment to the technical post

in the State of Bihar, as being inconsistent

with other statutory provisions, in

contravention of the Hon’ble Supreme

Court’s judgment and is violative of

fundamental rights guaranteed under the

Constitution of India.

ii. For declaration of the aforesaid rules as

being ultra vires to the Constitution of India

so far amendment of Rule -9(1)(iii) is

concerned.

iii. For any other relief/reliefs to which the

petitioner is found entitled to.

2. Matter is relating to selection and appointment to the

post of Junior Engineer. In this regard, advertisement

was issued on 08.03.2019. From time to time, matter

was taken up for hearing and during the course of the

hearing we have noticed certain errors in the relevant

Rules governing the post of Junior Engineer.

Ultimately, State Government has taken a decision to

cancel the process of recruitment to the post of Junior

Engineer with reference to advertisement issued on

08.03.2019 and proposed to issue a fresh or amendment

of Rules while rectifying certain errors which have crept

SLP (Civil) No. 7257 of 2023 & Ors. Page 9 of 19

in the existing Rules. To that effect, supplementary

counter affidavit has been filed on behalf of respondent

No. 4 while enclosing decision dated 25.01.2023 vide

Annexure – A to the supplementary counter affidavit.

Perusal of the same, it is evident that certain errors

which have crept in the Rules would be carried in

amendment of relevant Rules etc. The proposed action

of the State respondents reads as under:

‘4. After due deliberations on all aspects, it

was resolved that:

a. In view of the legal wrangle crept in

presently, the Recruitment process emanating

from the Advertisement No.01/2019 notified

by the Bihar Technical Service Commission

be cancelled.

b. The Department which earlier send its

requisition for appointment to the

Commission shall withdraw their respective

requisition from the Bihar Technical Service

Commission and such Department would

send their such requisition afresh only after

framing of new Recruitment Rules.

c. Action be also initiated for cancellation of

the Junior Engineer Recruitments Rules

which are presently in vogue in various

departments and thereafter, the amended

Junior Engineer Recruitments Rules be

framed.

d. Steps be taken as to the approval of the

Council of Ministers be accorded to the

amended junior Engineer Recruitment Rules

for the appointment of the Junior Engineer.’

3. In the light of these new developments, the present

petitions do not survive for consideration. Accordingly,

State is permitted to carry out necessary amendment

and proceed afresh to advertise for the post of Junior

Engineer.

SLP (Civil) No. 7257 of 2023 & Ors. Page 10 of 19

4. From the date of last advertisement till date, almost

four years have elapsed, therefore, such of those

candidates who are likely to be over-aged with reference

to ensuing advertisement, for such of those candidates

(who are applicants to the advertisement dated

08.03.2019), State Government must make a provision

in the proposed amendment insofar as giving age

relaxation as a one time measure. The above exercise

shall be completed within a period of four months

from the date of receipt of this order.

5. Pending I.A., if any, stands disposed of.

6. At this stage, learned counsel for one of the contesting

respondent submitted that liberty may be reserved to

challenge the proposed amendment. Such liberty is not

necessary for the reasons that as and when Rules or

amended rules were issued afresh, it would be a fresh

cause of action to the respective parties.”

13. Learned Senior Counsels for the Appellants, Mr. Rajeev

Dhavan, Mr. Ranjit Kumar and Ms. Meenakshi Arora urged

before this Court that at the outset, the Writ Petitioners, having

knowingly participated in the selection process under the

Advertisement were bound by the doctrine of acquiescence and

therefore, could not have challenged the eligibility criteria post-

facto. Reliance is placed on Punjab National Bank vs. Anit

Kumar Das (2021) 12 SCC 80 and The Chairman SBI & Anr.

vs. M.J. James (2022) 2 SCC 301.

14. The learned counsels for the Appellants also contended

that the cancellation of the entire selection process after its

completion and preparation of the Final Select List, is unjustified

SLP (Civil) No. 7257 of 2023 & Ors. Page 11 of 19

and amounts to changing the rules of the game after the

declaration of results, which is impermissible. Reliance is placed

on K. Manjusree vs. State of Andhra Pradesh & Anr. (2008) 3

SCC 512. It is argued that the Appellants, who emerged

successful after the due process of selection which was carried

out as per the Advertisement, have a vested right to be appointed

and are instead being made to suffer though no fault of their own.

15. They further contended that the decision taken by the State

Government and approved by the High Court amounts to

arbitrary action as it fails to specify the concern/anomaly with

Rule 9(1)(iii) which necessitated the cancellation of the entire

process.

16. Learned Counsel for the Private Respondents i.e., the Writ

Petitioners before the High Court also contended that the

cancellation of the entire selection process, at such a tardy stage

would seriously impact their interests. They argue that as per the

stand of the AICTE before the High Court, their applications

were eligible and should thus be reconsidered along with the

applications of the Appellants.

17. Learned Senior Counsel for the State, Mr. Patwalia

vehemently contends that the State was well within its domain to

scrap the selection process considering the numerous legal issues

that cropped up concerning the previously applicable Rules. It is

SLP (Civil) No. 7257 of 2023 & Ors. Page 12 of 19

brought to the notice of this Court that in furtherance of its

decisions, as approved by the Impugned Order, the Govt. of Bihar

has repealed the existing Rules and notified the Bihar

Subordinate Engineering (Civil/Mechanical/Electrical) Cadre

Rules, 2023 (the ‘New Rules’) vide Notification No. 1174 dated

07.03.2023. In compliance with the directions of the High Court,

appropriate provisions for the grant of one-time age relaxations

have also been made under Rule 8(2) of the New Rules. Further,

the BTSC has cancelled the Advertisement vide notice dated

10.04.2023 and fresh requisitions have been sent by the Water

Resources Department to the BTSC vide letter dated 21.03.2023

for selection against 2252 vacant posts for Junior Engineers in

that department.

18. Mr. Patwalia further contends that the completion of the

selection process under the Advertisement, resulting in the Select

List and in the Final Select List was consistently carried out with

the rider that the appointments would be subject to the outcome

of the pending litigation. He argues that while the Select List was

partially set aside by the High Court vide order dated 19.04.2022,

the Final Select List was neither considered by the High Court

nor published, and therefore, no right to appointment vests with

the Appellants, making any claim to equity untenable.

SLP (Civil) No. 7257 of 2023 & Ors. Page 13 of 19

19. At this stage, it is pertinent to note that while issuing

notice, this Court vide order dated 24.04.2023 directed the

maintenance of status quo which has persisted till date. As per the

most recent status report by the State, nearly 9,187 posts of Junior

Engineers remain vacant, drastically affecting the day-to-day

functioning of the State. As retirements are ongoing, the working

strength is continuously decreasing and is currently at 11.7%. In

recognition of the peculiar facts and circumstances of this case,

Mr. Patwalia has fairly stated before this Court that the State will

abide by any appropriate direction given by the Court.

20. We have heard Learned Counsel for the parties and

perused the record.

21. As evidenced above, the present case has a chequered

history. Before the Advertisement was released, an amendment

was brought to the Rules in 2017, more particularly to Rule 9,

which restricted the eligibility criteria only to those candidates

who possessed a Diploma from an institute approved by the

AICTE. This amendment was prima facie contrary to the

decision of this Court in Bharathidasan University (supra)

which is solidified by the stand of the AICTE before this Court

and their public notice dated 19.02.2022. However, despite this

infraction, the Advertisement contained the same restriction,

SLP (Civil) No. 7257 of 2023 & Ors. Page 14 of 19

arbitrarily disqualifying persons like the Writ Petitioners from the

selection process.

22. Thereafter, the first Select List that was prepared was

partly set aside vide order dated 19.04.2022 in CWJC No.

7312/2021 and the BTSC was directed to prepare a fresh Select

List as under:

“Accordingly, appointments made to extent in terms of

Rule 4(A) of amending Rules, 2017 are set aside and the

Bihar State Technical Selection Commission is directed

to prepare afresh select/merit list granting 40%

institutional reservation to all the diploma holders, who

have obtained their diploma certificate from any

polytechnic institutes recognized by AICTU and

affiliated by State Board of Technical Institutions, Bihar,

Patna within the State of Bihar.”

23. Consequently, the Select List prepared on 02.04.2022 was

impliedly set aside and a Final Select List was prepared by the

BTSC in compliance with order dated 19.04.2022 but the same

was not released as ordered by the Patna High Court vide order

dated 01.12.2022 in another analogous writ proceeding being

CWJC No. 7761/2022 as under:

“…Process of selection and appointment, in terms of

advertisement dated 8.9.2019, is nearing completion.

Under these circumstances, as prayed for, we grant two

weeks’ time to file reply.

In the meanwhile, process of selection may carry on,

but the result shall not be declared without leave of the

Court.”

SLP (Civil) No. 7257 of 2023 & Ors. Page 15 of 19

24. It is pertinent to note that the order dated 19.04.2022

passed in CWJC No. 7312 of 2021 does not appear to have been

challenged further and has attained finality. It is stated by the

BTSC that the Final Select List was prepared and kept under

sealed cover. While an application seeking release of the list was

pending before the High Court, the Writ Petition was withdrawn.

25. During the present proceedings, vide order dated

10.09.2024, this Court sought information regarding the Final

Select List from the State Government and the same was

produced before this Court in sealed cover.

26. Presently, despite the preparation of the Final Select List

which signals the conclusion of the appointment process, the

State Government seeks to scrap the entire process and undertake

a fresh appointment process under the New Rules. In the

considered opinion of this Court, this amounts to effectively

changing the rules of the game after the game was played which

is impermissible and deprives the candidates of their legitimate

right of consideration under the previous Rules.

27. The High Court in the impugned order has abruptly and

without assigning reasons and without adjudicating any issues

involved in the writ petitions, disposed of the same, recording the

statement made by the learned counsel for the State, and

SLP (Civil) No. 7257 of 2023 & Ors. Page 16 of 19

permitted the State to amend Rules in question. Since, the entire

recruitment process was concluded as per the extant Rules till the

selection list was declared on 02.04.2022, which has not been

specifically set aside by the High Court, and since the AICTE has

also continued its stand that its approval is not necessary for the

private institutions, and since the order dated 19.04.2022 passed

in CWJC No. 7312/2021 has attained finality, in our opinion, the

interest of justice would be met if the State/Commission is

directed to prepare a fresh select list of meritorious candidates in

respect of the Advertisement dated 08.03.2019, keeping in view

the above facts and keeping in view that no appointments to the

post of Junior Engineer (Civil) have been made since last more

than ten years. Hence, it is required to be directed that a fresh

selection list for the vacancies advertised in the Advertisement

dated 08.03.2019 be prepared of the meritorious candidates,

considering the above observations and in compliance with the

order dated 19.04.2022 passed by the High Court in CWJC No.

7312/2021 as expedient as possible and preferably within three

months of this order.

28. In this regard, the field is held by the three-judge bench

decision of this Court in K. Manjusree (supra) wherein the Court,

relying on previous decisions, explicitly held that introducing

new requirements into the selection process after the entire

selection process was completed amounted to changing the rules

SLP (Civil) No. 7257 of 2023 & Ors. Page 17 of 19

of the game after the game was played. Relevant portions of the

judgement are reproduced as under:

“27. But what could not have been done was the second

change, by introduction of the criterion of minimum

marks for the interview. The minimum marks for

interview had never been adopted by the Andhra

Pradesh High Court earlier for selection of District &

Sessions Judges, (Grade II). In regard to the present

selection, the Administrative Committee merely adopted

the previous procedure in vogue. The previous

procedure as stated above was to apply minimum marks

only for written examination and not for the oral

examination. We have referred to the proper

interpretation of the earlier Resolutions dated 24-7-

2001 and 21-2-2002 and held that what was adopted on

30-11-2004 was only minimum marks for written

examination and not for the interviews. 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 to changing the rules of the

game after the game was played which is clearly

impermissible. We are fortified in this view by several

decisions of this Court. It is sufficient to refer to three of

them — P.K. Ramachandra Iyer v. Union of

India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214]

, Umesh Chandra Shukla v. Union of India [(1985) 3

SCC 721 : 1985 SCC (L&S) 919] and Durgacharan

Misra v. State of Orissa [(1987) 4 SCC 646 : 1988 SCC

(L&S) 36 : (1987) 5 ATC 148]

32. In Maharashtra SRTC v. Rajendra Bhimrao

Mandve [(2001) 10 SCC 51 : 2002 SCC (L&S) 720] this

Court observed that “the rules of the game, meaning

thereby, that the criteria for selection cannot be altered

by the authorities concerned in the middle or after the

process of selection has commenced”. In this case the

position is much more serious. Here, not only the rules

SLP (Civil) No. 7257 of 2023 & Ors. Page 18 of 19

of the game were changed, but they were changed

after the game had been played and the results of the

game were being awaited. That is unacceptable and

impermissible.”

29. Therefore, in light of the aforenoted position, the State

action of scrapping the entire selection process is not permissible.

In view of the peculiar circumstances of this case, particularly the

prolonged pendency leading to huge number of vacant posts that

hinder the Government’s functioning, this Court finds it

appropriate for the State/BTSC to proceed with the Fresh Select

List submitted in compliance with the order dated 19.04.2022 in

CWJC No. 7312/2021 which has attained finality, as also taking

into consideration as far as possible, the interest of the candidates

who were found successful. Hence, the Fresh Select List must

be appropriately revised in the following manner:

(i) The Fresh Select List be prepared in view of order dated

19.04.2022 passed by the High Court in CWJC No. 7312/2021.

(ii) The Fresh Select List shall also include as far as possible

those meritorious candidates who were otherwise eligible but

were declared ineligible solely on account of the 2017

amendment to the Rules i.e., on account of their institute not

being recognised by the AICTE, and all similarly placed

successful candidates.

SLP (Civil) No. 7257 of 2023 & Ors. Page 19 of 19

(iii) The BTSC is directed to prepare the Revised Select List

within 3 months of this Order and the State Government is

directed to act upon the Revised Select List submitted by the

Commission within a period of 30 days thereafter.

30. Accordingly, the present appeals are disposed of with the

aforenoted directions.

……………………………………J.

[BELA M. TRIVEDI]

……………………………………J.

[SATISH CHANDRA SHARMA ]

NEW DELHI

OCTOBER 04, 2024