2024 INSC 847 Page 1 of 44

CIVIL APPEAL NO.2634 OF 2013

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.2634 OF 2013

TEJ PRAKASH PATHAK & ORS. … APPELLANT(S)

VERSUS

RAJASTHAN HIGH COURT & ORS. …RESPONDENT(S)

WITH

CIVIL APPEAL NO.2635 OF 2013

CIVIL APPEAL NO.2636 OF 2013

J U D G M E N T

MANOJ MISRA, J.

The ideal in recruitment is to do away with unfairness

1

REFERENCE

1. A three-Judge Bench of this Court while 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

1

UNITED NATIONS HANDBOOK OF CIVIL SERVICE LAWS AND PRACTICES.

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CIVIL APPEAL NO.2634 OF 2013

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 Court Staff

Service Rules 2002’

6 framed by the Chief Justice of the

High Court under Article 229 (2) of the Constitution of

India

7 governed the appointments.

2

K. Manjusree v. State of A.P., (2008) 3 SCC 512.

3

State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220.

4

Tej Prakash Pathak & Others v. Rajasthan High Court and Others, (2013) 4 SCC 540.

5

The High Court.

6

2002 Rules.

7

Constitution.

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(c) Under the 2002 Rules, the Chief Justice of the High

Court vide Office Order dated 5 December 2002, inter alia,

specified the qualifications as well as the method of

recruitment for the post of ‘Translator’ (Ordinary Scale) in

the following terms:

“TRANSLATORS (ORDINARY SCALE)

Recruitment to the post of Translators (Ordinary Scale)

shall be made on the recommendation of a Committee

nominated by the Appointing Authority on the criteria of

selection from amongst the graduate Upper Division

Clerks or officials in equivalent or above grade but below

the grade of Translators (Ordinary Scale), with Hindi or

English Literature as one of the optional subject in

Graduation or Lower Division Clerks with Hindi or English

Literature as subject in post-graduation and having

minimum experience of five years.

COMPETITIVE EXAMINATION

A qualifying examination shall be held to test the ability of

the candidates of translation from English to Hindi and

Hindi to English.

Paper-I English to Hindi translation 100 marks

Paper-II Hindi to English translation 100 marks

Explanation: For the qualifying examination the officials

appearing therein shall be given passages for translation

from English to Hindi and Hindi to English from the

judgment and records.

Personal Interview:

There shall be a personal interview

of the candidate. 50 marks

Note: A candidate who secures in aggregate 75%

marks and minimum 60% marks in each paper shall only

be called for interview.”

(d) Later, vide Office Order dated 24 July 2004,

amendments were made in the Office Order dated 5

December 2002 thereby substituting the provision

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relating to recruitment of Translators (Ordinary Scale) by

the following:

“TRANSLATORS

Recruitment shall be made from amongst the judicial

assistants or junior judicial assistants having experience

of 3 years by holding a test in English and Hindi

translation. Candidates shall be given passages in English

from the judgments and records and shall be asked to

translate them into Hindi. Similarly passages in Hindi from

the records or from some other books etc. shall be given

and the candidates shall be asked 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.

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(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 after the game is played”. The High Court on its

administrative side defended the decision of the Chief

Justice by claiming it to have been taken in good faith for

appointing a suitable candidate.

(h) The writ petition came to be dismissed by the High

Court vide judgment under appeal dated 11 March 2011.

The High Court took the view that on mere placement in

the select list no indefeasible right accrues to a candidate

for appointment. The employer may fix a higher

benchmark to ensure that a person suitable to the post is

appointed.

(i) On a special leave petition challenging the judgment of

the High Court, while granting leave, vide order dated 20

March 2013, the matter was referred for an authoritative

pronouncement by a larger Bench of this Court.

RELEVANT EXTRACTS FROM THE REFERENCE ORDER

3. To have a clear understanding of the scope of the

reference, the relevant paragraphs of the reference order are

extracted below:

“5. 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 respondent High

Court as on the date of initiation of the recruitment

process in question (i.e. 17-9-2009). It appears that such

a prescription had existed earlier under the Rules, but by

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an amendment, the said prescription was dropped with

effect from 14-7-2004.

6. 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 case [K.

Manjusree v. State of A.P., (2008) 3 SCC 512 at p. 524,

para 27 : (2008) 1 SCC (L&S) 841] that it is “clearly

impermissible”.

7. 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 the State which under

the scheme of our Constitution is required to be regulated

by “law” made under Article 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.

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 law-

making is made only with reference to the creation of

crimes. Any other legal right or obligation could be created,

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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.

11. Those various cases [ (a) C. Channabasavaih v. State

of Mysore, AIR 1965 SC 1293; State of Haryana v. Subash

Chander Marwaha, (1974) 3 SCC 220 : 1973 SCC (L&S)

488; 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; Durgacharan Misra v. State of Orissa, (1987) 4

SCC 646 : 1988 SCC (L&S) 36 : (1987) 5 ATC 148; State of

U.P. v. Rafiquddin, 1987 Supp SCC 401 : 1988 SCC (L&S)

183 : (1987) 5 ATC 257; Maharashtra SRTC v. Rajendra

Bhimrao Mandve, (2001) 10 SCC 51 : 2002 SCC (L&S)

720; Pitta Naveen Kumar v. Narasaiah Zangiti, (2006) 10

SCC 261 : (2007) 1 SCC (L&S) 92; K. Manjusree v. State of

A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841; Hemani

Malhotra v. High Court of Delhi, (2008) 7 SCC 11 : (2008) 2

SCC (L&S) 203; K.H. Siraj v. High Court of Kerala, (2006) 6

SCC 395 : 2006 SCC (L&S) 1345; Ramesh Kumar v. High

Court of Delhi, (2010) 3 SCC 104 : (2010) 1 SCC (L&S)

756; Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 :

(2010) 1 SCC (L&S) 652; Hardev Singh v. Union of India,

(2011) 10 SCC 121 : (2012) 1 SCC (L&S) 390 — Where

procedural rules were altered.(b) P. Mahendran v. State of

Karnataka, (1990) 1 SCC 411 : 1990 SCC (L&S) 163 :

(1990) 12 ATC 727; M.P. Public Service

Commission v. Navnit Kumar Potdar, (1994) 6 SCC 293 :

1994 SCC (L&S) 1377 : (1994) 28 ATC 286; Gopal Krushna

Rath v. M.A.A. Baig, (1999) 1 SCC 544 : 1999 SCC (L&S)

325; Umrao Singh v. Punjabi University, (2005) 13 SCC

365 : 2006 SCC (L&S) 1071; Mohd. Sohrab Khan v. Aligarh

Muslim University, (2009) 4 SCC 555 : (2009) 1 SCC (L&S)

917 — Where the eligibility criteria were altered.] deal with

situations where the State sought to alter (1) the eligibility

criteria of the candidates seeking employment, or (2) the

method and 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

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written examination or viva voce as was done

in Manjusree [K. Manjusree v. State of 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. Subash Chander

Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] 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 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 that the candidates securing

minimum qualifying marks at an examination held for the

purpose of recruitment into the service of the State have

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no legal right to be appointed. In the context, it was held:

(Subash Chander Marwaha case [(1974) 3 SCC 220 : 1973

SCC (L&S) 488] , SCC p. 227, para 12)

“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 high standards of competence to fix a

score which is much higher than the one

required for more (sic mere) eligibility.”

14. Unfortunately, the decision in Subash Chander

Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] does

not appear to have been brought to the notice of Their

Lordships in Manjusree [K. Manjusree v. State of A.P.,

(2008) 3 SCC 512 at p. 524, para 27 : (2008) 1 SCC (L&S)

841] . This Court in Manjusree [K. Manjusree v. State of

A.P., (2008) 3 SCC 512 at p. 524, para 27 : (2008) 1 SCC

(L&S) 841] relied upon 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] . In none

of the cases, was the decision in Subash Chander

Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488]

considered.

15. 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 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)

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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’ is the process of selection

and appointment. Courts have consistently frowned upon

tinkering with the rules of the game once the recruitment

process commences. This has crystallised into an oft-quoted

legal phrase that “the rules of the game must not be changed

mid-way, or after the game has been played”. Broadly-

speaking these rules fall in two categories. One which

prescribes the eligibility criteria (i.e., essential qualifications)

of the candidates seeking employment; and the other which

stipulates the method and manner of making the selection

from amongst the eligible candidates.

6. Cut-off date with reference to which eligibility has to be

determined is the date appointed by the relevant service rules;

where no such cut-off date is provided in the rules, then it will

be the date appointed in the advertisement inviting

applications; and if there is no such date appointed, then

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eligibility criteria shall be applied by reference to the last date

appointed by which the applications were to be received.

8

7. The law is settled that after commencement of the

recruitment process the eligibility criteria is not to be altered

because candidates even if eligible under the altered criteria

might not apply by the last date under the belief that they are

not eligible as per the advertised criteria.

9 Such alteration/

change, therefore, deprives a person of the guarantee of equal

opportunity in matters of public employment provided by

Article 16 of the Constitution. The reference order therefore

acknowledges this legal position and in clear terms accepts

that ‘the rules of the game ’ cannot be changed after

commencement of the recruitment process insofar as the

eligibility criteria is concerned.

8. However, in regard to changing the rules of the game

qua method or procedure for selection, the three-Judge Bench

in the reference order doubted the correctness of the decision

in K. Manjusree (supra) inter alia on the ground that it failed

to notice an earlier decision in Subash Chander Marwaha

(supra). Accordingly, the reference order seeks an

authoritative pronouncement in that regard from a larger

Bench of this Court. The scope of the reference is therefore

limited to (a) whether K. Manjusree (supra) lays down the

correct law; and (b) whether the rules of the game qua method

8

Shankar K. Mandal v. State of Bihar, (2003) 9 SCC 519.

9

Mohd. Sohrab Khan v. Aligarh Muslim University and others, (2009) 4 SCC 555.

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and manner of making selection can be changed or altered

after commencement of the recruitment 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 Articles 16 and 14, respectively, of the Constitution

which proscribe a change in the rules of the game qua

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selection criteria, once the game has begun. These rights

would be infringed if candidates, otherwise eligible, are

excluded from the zone of consideration based on a post

facto change in the selection criteria.

(b) Candidates have a right to know, before the

selection process commences, the standards/ criteria on

which they will be assessed/ evaluated so that they could

modulate their level of preparedness accordingly.

(c) A change in the advertised cut off marks for

eligibility to be placed in the select list, after the game is

played, may seriously prejudice a candidate on two

counts. First, the candidate may not put in effort more

than required for achieving the advertised cut off marks.

Second, the interviewer or evaluator may unknowingly

place the candidate in a non-eligible category while

imagining that he has been placed in an eligible category.

Thus a change in the eligibility cut off, after evaluation is

done, denies the evaluator an opportunity to modulate the

marks for placing the candidate in a category to which

he/she, in the view of the evaluator, is entitled to be

placed.

(d) If eligibility cut-off marks is to be prescribed, it

should be done before the test or the interview so that both

the examinee and the examiner are aware as to how many

marks would qualify a candidate for further consideration.

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(e) Recruitment to public services must not only be

fair but must appear to be so. A change in the selection

criteria mid-way would create an impression that the State

is not acting fairly and the change is to favour certain

individuals. It thus violates transparency in decision

making process, which is fundamental to rule out

arbitrariness, and fosters nepotism.

(f) Discretion is antithesis to the Rule of law which is the

hallmark of our Constitution. Rule of law suffers when

rules of the game are left to be altered at the discretion of

the employer.

(g) K. Manjusree (supra) is not in conflict with

Subash Chander Marwaha (supra). Subash Chander

Marwaha proceeds on the principle that existence of

vacancies does not confer a right to a candidate placed in

the select list to be appointed. K. Manjusree on the other

hand deals with a situation where a candidate is denied

placement in the select list 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:

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(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 the paramount consideration for the

employer.

(d) A change in the selection criteria which does not

bear on the merit list but only affects appointment based

thereupon, would not fall foul of either Article 16 or Article

14 of the Constitution if such a change is in the larger

interest of efficiency in the service.

ANALYSIS

12. To effectively analyse and adjudicate upon the questions

referred, we would divide our discussion into following parts:

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(a) When the recruitment process commences and

comes to an end;

(b) Basis of the doctrine that ‘rules of the game’ must

not be changed during the course of the game, or after the

game is played;

(c) Whether the decision in K. Manjusree (supra) is at

variance with earlier precedents on the subject;

(d) Whether the above doctrine applies with equal

strictness qua method or procedure for selection as it does

qua eligibility criteria;

(e) Whether procedure for selection stipulated by Act

or Rules framed either under the proviso to Article 309

10

of the Constitution or a Statute could be given a go-bye;

(f) Whether appointment could be denied by change in

the eligibility criteria after the game is played.

(A) COMMENCEMENT/END OF THE RECRUITMENT

PROCESS

10

Article 309. Recruitment and conditions of service of persons serving the Union or a State.—

Subject to the provisions of this Constitution, Acts of the appropriate legislature may regulate the

recruitment, and conditions of service of persons appointed, to public services and posts in connection

with the affairs of the Union or of any State.

Provided that it shall be competent for the President or such person as he may direct in the case

of services and posts in connection with the affairs of the Union, and for the governor of a State or such

person as he may direct in the case of services and posts in connection with the affairs of the State, to

make rules regulating the recruitment, and the conditions of service of persons appointed, to such services

and posts until provision in that behalf is made by or under an Act of the appropriate legislature under this

article, and any rules so made shall have effect subject to the provisions of any such Act.

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13. The process of recruitment begins with the issuance of

advertisement and ends with the filling up of notified

vacancies. It consists of various steps like invit ing

applications, scrutiny of applications, rejection of defective

applications or elimination of ineligible candidates, conducting

examinations, calling for interview or viva voce and

preparation of list of successful candidates for appointment.

11

(B) BASIS OF THE DOCTRINE

14. The doctrine proscribing change of rules midway

through the game, or after the game is played, is predicated

on the rule against arbitrariness enshrined in Article 14

12 of

the Constitution. Article 16

13 is only an instance of the

11

A.P. Public Service Commission v. B. Sarat Chandra, (1990) 2 SCC 669; and Rakhi Ray v. High Court of

Delhi, (2010) 2 SCC 637.

12

Article 14. Equality before law. - The State shall not deny to any person equality before the law or the

equal protection of the laws within the territory of India.

13

Article 16. Equality of opportunity in matters of public employment. - (1) There shall be equality of

opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any

of them, be ineligible for, 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 unfilled vacancies of a year which

are reserved for being filled up in that year in accordance with any provision for reservation made under

clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years

and such class of vacancies shall not be considered together with the vacancies of the year in which they

are being filled up for determining the sealing of 50% reservation on total number of vacancies of that year.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office

in connection with the affairs of any religious or denominational institution or any member of the governing

body thereof shall be a person professing a particular religion or belonging to a particular denomination.

(6) Nothing in this article shall prevent the State from making any provision for the reservation of

appointments or posts in favor of any economically weaker sections of citizens other than the classes

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application of the concept of equality enshrined in Article 14.

In other words Article 14 is the genus while Article 16 is a

species. Article 16 gives effect to the concept of equality in all

matters relating to public employment. These two articles

strike at arbitrariness in State action and ensure fairness and

equality of treatment. They require that State action must be

based on valid relevant principles alike to all similarly situate

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

mentioned in clause (4) in addition to the existing reservation and subject to a maximum of 10% of the

posts in each category.

14

E. P. Royappa v. State of T.N., (1974) 4 SCC 3.

15

State of Jharkhand v. Brahmputra Metallics Ltd., (2023) 10 SCC 634.

16

Sivanandan CT & Ors. v. High Court of Kerala & Ors., 2023 INSC 709.

Page 19 of 44

CIVIL APPEAL NO.2634 OF 2013

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 public authorities,

while performing their public duties, ought to honour their

promises or past practices. The legitimacy of an expectation

can be inferred if it is rooted in law, custom, or established

procedure.

17 However, the doctrine of legitimate expectation

does not impede or hinder the power of the public authorities

to lay down a policy or withdraw it. The public authority has

the discretion to exercise the full range of choices available

within its executive power. The public authority often has to

take into consideration diverse factors, concerns, and interests

before arriving at a particular policy decision. The courts are

generally cautious in interfering with a bona fide decision of

public authorities which denies legitimate expectation

provided such a decision is taken in the larger public interest.

Thus, public interest serves as a limitation on the application

of the doctrine of legitimate expectation. Courts have to

determine whether the public interest is compelling and

sufficient to outweigh the legitimate expectation of the

claimant. While performing a balancing exercise, courts have

to often grapple with the issues of burden and standard of

proof required to dislodge the claim of legitimate expectation.

18

17

Sivanandan CT (supra), paragraph 18.

18

Sivanandan CT (supra), paragraph 37.

Page 20 of 44

CIVIL APPEAL NO.2634 OF 2013

17. In Sivanandan CT

19, the Constitution Bench, speaking

through one of us (Dr. D.Y. Chandrachud, CJ), held that for a

public authority to frustrate a claim of legitimate expectation,

it must objectively demonstrate by placing relevant material

before the court that its decision was in the public interest.

This standard is consistent with the principles of good

administration which require that State actions must be held

to scrupulous standards to prevent misuse of public power

and ensure fairness to citizens. It was also highlighted that the

doctrine of legitimate expectation lays emphasis on

predictability and consistency in decision-making which is a

facet of non-arbitrariness. In addition, the Court observed:

“43. The underlying basis for the application of the

doctrine of legitimate expectation has expanded and

evolved to include the principles of good administration.

………. The principles of good administration require that

the decisions of public authorities must withstand the test

of consistency, transparency, and predictability to avoid

being regarded as arbitrary and therefore violative of

Article 14.”

(C) K. 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

19

See Footnote 13, paragraph 38.

Page 21 of 44

CIVIL APPEAL NO.2634 OF 2013

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 consolidated merit list was prepared in the

order of merit on the basis of the aggregate marks. The merit

list inter alia contained marks secured in the written

examinations out of 100; marks secured in the interview out

of 25; and the total marks secured in the written examination

and interview out of 125. Based on that list, the Administrative

Committee approved the selection of ten candidates as per

merit and reservation. However, the Full Court did not agree

with the select list prepared. Consequently, the Chief Justice

constituted a Committee of Judges for preparing a fresh list.

The Committee recommended that in place of 100 marks for

the written examination and 25 marks for the interview, the

candidates should be evaluated with reference to 75 marks for

20

Open Category or Unreserved Category.

21

Backward Class Category.

22

Scheduled Caste Category.

23

Scheduled Tribe Category.

Page 22 of 44

CIVIL APPEAL NO.2634 OF 2013

the written examination and 25 marks for the interview in line

with earlier resolution dated 30.11.2004. The Committee also

recommended that the minimum pass percentage applied for

the written examination to determine the eligibility of the

candidates for appearance in the interview should also be

applied for interview marks, and those who failed to secure

such minimum marks in the interview should be considered

as having failed. Based on th e recommendation of the

Committee, the minimum percentage for passing the written

examination (i.e., 50% for OC, 40% for BC, and 35% for SC

and ST) was applied for interview and, therefore, only those

candidates who secured the minimum of 12.5 marks in OC,

10 marks in BC and 8.7 marks in SC and ST were considered

as having succeeded in the interview. As a result, only 31

candidates were found to have qualified both in the written

examination and interview. In consequence, a revised merit

list of only 31 successful candidates was prepared wherein few

candidates, earlier selected, were ousted and few others who

did not find place in the earlier select list gained entry.

However, out of those 31 candidates only 9 were recommended

for appointment.

19. In that factual context, two candidates whose names

found mention in the first list, and who got excluded in the

second list, filed writ petitions by claiming that High Court’s

decision to prepare selection list by prescribing minimum

qualifying marks for the interview was arbitrary and illegal.

They thus sought a direction to the High Court to redraw the

Page 23 of 44

CIVIL APPEAL NO.2634 OF 2013

select list without adopting minimum qualifying marks for the

interview. 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 different if they had

to proceed on the basis that there were minimum marks

to be secured in the interview for being considered for

selection and that the marks are awarded by them would

have the effect of barring or ousting any candidate from

being considered for selection. Thus, the entire process of

selection – from the stage of holding the examination,

holding interviews and finalising the list of candidates to

be selected – was done by the Selection Committee on the

basis that there was no minimum marks for the interview.

To put it differently the game was played under the rule

that there was no minimum marks for the interview.

24

Special Leave Petitions.

Page 24 of 44

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27. …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.

33. …We may clarify that prescription of minimum marks

for any interview is not illegal. We have no doubt that the

authority making rules regulating the selection, can

prescribe by rules, the minimum marks both for written

examination and interviews, or prescribe minimum marks

for written examination but not for interview, or may not

prescribe any minimum marks for either written

examination or interview. Where the rules do not prescribe

any procedure, the Selection Committee may also

prescribe the minimum marks, as stated above. But if the

Selection Committee wants to prescribe minimum marks

for interview, it should do so before the commencement of

selection process. If the Selection committee prescribe

minimum marks only for the written examination, before

the commencement of selection process, it cannot either

during the selection process or after the selection process,

add an additional requirement that the candidates should

also secure minimum marks in the interview. What we

have found to be illegal, is changing the criteria after

completion of the selection process, when the entire

selection proceeded on the basis that there will be no

minimum marks for the interview.”

(Emphasis supplied)

20. The discernible ratio in K. Manjusree (supra) is that the

criterion for selection is not to be changed after completion of

the selection process, though in absence of rules to the

contrary the Selection Committee may fix minimum marks

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

Page 25 of 44

CIVIL APPEAL NO.2634 OF 2013

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 to changing the rules

of the game after the game was played; and (b) if the

interviewers had to proceed on the basis that there were

minimum marks to be secured in the interview for being

considered for selection and that the marks awarded by them

would have the effect of barring or ousting any candidate from

being considered for selection, the awarding of marks might

have been markedly different. The above observation (b) lends

credence to the submission made before us that a change in

the eligibility cut off, after evaluation is done, denies the

evaluator an opportunity to modulate the marks for placing

25

(2010) 3 SCC 104.

Page 26 of 44

CIVIL APPEAL NO.2634 OF 2013

the candidate in a category to which he/she, in the view of the

evaluator, is entitled to be placed.

22. In the reference order the correctness of the decision in

K. Manjusree has been doubted on two counts: (a) if the

principle laid down in K. Manjushree is applied strictly, the

High Court would be bound to recruit 13 of the “best”

candidates out of the 21 who applied irrespective of their

performance in the examination held, which would not be in

the larger public interest or the goal of establishing an efficient

administrative machinery; and (b) the decision of this Court in

Subash Chander Marwaha (supra) was neither noticed in K.

Manjusree nor in the decisions relied upon in K. Manjusree.

23. Insofar as the first reason to doubt K. Manjusree is

concerned, we are of the view that the apprehension expressed

in the referring order that all selected candidates regardless of

their suitability to the establishment would have to be

appointed, if the principle laid down in K. Manjusree is strictly

applied, is unfounded. Because K. Manjusree does not

propound that mere placement in the list of selected

candidates would confer an indefeasible right on the

empanelled candidate to be appointed. The law in this regard

is already settled by a Constitution Bench of this Court in

Shankarsan Dash

26 in the following terms:

“7. It is not correct to say that if a number of vacancies are

notified for appointment and adequate number of

26

Shankarsan Dash v. Union of India, (1991) 3 SCC 47, which has been consistently followed. See also All

India SC & ST Employees Association v. A. Arthur Jeen & Others, (2001) 6 SCC 380; M. Ramesh v. Union of

India, (2018) 16 SCC 195; and Rakhi Ray and others v. High Court of Delhi and others, (2010) 2 SCC 637.

Page 27 of 44

CIVIL APPEAL NO.2634 OF 2013

candidates are found fit, the successful candidates acquire

an indefeasible right to be appointed which cannot be

legitimately denied. Ordinarily the notification merely

amounts to an invitation to qualified candidates to apply

for recruitment and on their selection they do not acquire

any right to the post. Unless the relevant 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 order of merit in the select list. State

Government contested the petitions by claiming that in its

view, to maintain high standards of competence in judicial

service, candidates getting less than 55% marks in the

examination were not suitable to be appointed as subordinate

judges. The High Court allowed the writ petition by taking a

view that the State Government was not entitled to impose a

Page 28 of 44

CIVIL APPEAL NO.2634 OF 2013

new standard of 55% of marks for selection as that was against

the rule which provided for a minimum of 45% only.

25. After taking note of the relevant extant rules (i.e., Rules

8 and 10)

27 this Court allowed State’s appeal with the following

observations:

“10. … The mere fact that a candidate's name appears in

the list will not entitle him to a mandamus that he be

appointed. Indeed, if the State Government while making

the selection for appointment had departed from the

ranking given in the list, there would have been a

legitimate grievance on the ground that the State

Government had departed from the rules in this respect.

The true effect of Rule 10 …… is that if and when the State

Government propose to make appointments of

Subordinate Judges the State Government ( i) shall not

make such appointments by travelling outside the list, and

(ii) shall make the selection for appointments strictly in the

order the candidates have been placed in the list published

in the Government Gazette. In the present case neither of

these two requirements is infringed by the Government.

They have appointed the first seven persons in the list as

Subordinate Judges. Apart from these constraints on the

power to make the appointments, Rule 10 does not impose

any other constraint. There is no constraint that the

Government shall make an appointment of a Subordinate

Judge either because there are vacancies or because a list

of candidates has been prepared and is in existence.

11. It must be remembered that the petition is for a

mandamus. This Court has pointed out in Dr Rai

Shivendra Bahadur v. Governing Body of the Nalanda

College [AIR 1962 SC 1210 : 1962 Supp (2) SCR 144 :

(1962) 2 SCJ 208 : (1962) 1 Lab LJ 247 : (1962) 4 FIR 507.]

that in order that mandamus may issue to compel an

authority to do something, it must be shown that the

27

Rule 8. -No candidate shall be considered to have qualified unless he obtains 45% marks in the aggregate

of all the papers and at least 33% marks in the language paper, that is, Hindi (in Devnagri script).

Rule 10.- (i) The result of the examination will be published in the Punjab Government Gazette;

(ii) Candidates will be selected for appointment strictly in the order in which they have been placed by the

Punjab Public Service Commission in the list of those who have qualified under Rule 8;….”

Page 29 of 44

CIVIL APPEAL NO.2634 OF 2013

statute imposes a legal duty on that authority and the

aggrieved party has a legal right under the statute to

enforce its performance. 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, each one of them stands on

a separate level of competence as compared with another.

That is why Rule 10(ii) …. speaks of “selection for

appointment”. Even as there is no constraint on the State

Government in respect of the number of appointments to

be made, there is no constraint on the Government fixing

a higher score of marks for the purpose of selection. 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 high standards of competence to

fix a score which is much higher than the one required for

mere eligibility. As shown in the letter of the Chief

Secretary already referred to, they fixed a minimum of 55%

for selection as they had done on a previous occasion.

There is nothing arbitrary in fixing the score of 55% for the

purpose of selection, because that was the view of the High

Court also previously intimated to the Punjab Government

on which the Haryana Government thought fit to act. That

Page 30 of 44

CIVIL APPEAL NO.2634 OF 2013

the Punjab Government later on fixed a lower score is no

reason for the Haryana Government to change their mind.

This is essentially a matter of administrative policy and if

the Haryana State Government think that in the interest

of judicial competence persons securing less than 55% of

marks in the competitive examination should not be

selected for appointment, those who got less than 55%

have no right to claim that the selections be made of also

those candidates who obtained less than the minimum

fixed by the State Government. In our view the High Court

was in error in thinking that the State Government had

somehow contravened Rule 8 of …..”

26. A close reading of the judgment in Subash Chander

Marwaha (supra) would disclose that there was no change in

the rules of the game qua eligibility for placement in the select

list. There the select list was prepared in accordance with the

extant rules. But, since the extant rules did not create any

obligation on the part of the State Government to make

appointments against all notified vacancies, this Court opined

that the State could take a policy decision not to appoint

candidates securing less than 55% marks. With that reasoning

and by taking into account that appointments made were of

top seven candidates in the select list, who had secured 55%

or higher marks, this Court found no merit in the petition of

the writ petitioners. 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

Page 31 of 44

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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 prescribing cut-off marks in interviews,

the fixing of separate minimum cut-off marks in the interview

for further elimination of candidates after a comprehensive

written test touching the required subjects in detail, was

violative of the statute. The writ petitions were allowed by a

single judge of the High Court against which intra-court

appeal was filed before division bench of the High Court. The

division bench set aside the order of the learned single judge

against which appeals came before this Court. While

dismissing the appeals upon interpretation of Rule 7 of the

Kerala Judicial Service Rules, 1991

29, this Court held:

28

(2006) 6 SCC 395.

29

Rule 7.- Preparation of lists of approved candidates and reservation of appointments. – (1) The High Court

of Kerala shall, from time to time, hold examinations, written and oral, after notifying the probable number

of vacancies likely to be filled up and prepare a list of candidates considered suitable for appointment to

category 2. The list shall be prepared after following such procedure as the High Court deems fit and by

Page 32 of 44

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“50. What the High Court has done by the notification

dated 26.3.2001 is to evolve a procedure to choose the best

available talent. It cannot for a moment be stated that

prescription of minimum pass marks for the written

examination or for the oral examination is in any manner

irrelevant or not having any nexus to the object sought to

be achieved. The merit of a candidate and his suitability

are always assessed with reference to his performance at

the examination and it is a well-accepted norm to adjudge

the merit and suitability of any candidate for any service,

whether it be the Public Service Commission (IAS, IFS, etc)

or any other. Therefore, the powers conferred by Rule 7

fully justified the prescription of the minimum eligibility

condition in Rule 10 of the notification dated 26.3.2001.

The very concept of examination envisaged by Rule 7 is a

concept justifying prescription of a minimum as

benchmark for passing the same. In addition, further

requirements are necessary for assessment of suitability of

the candidate and that is why power is vested in a high-

powered body like the High Court to evolve its own

procedure as it is the best judge in the matter…..

xxx xxx xxx

62. Thus it is seen that apart from the amplitude of the

power under rule 7 it is clearly open for the High Court to

prescribe benchmarks for the written test and oral test in

order to achieve the purpose of getting the best available

talent. There is nothing in the rules barring such a

procedure from being adopted. It may also be mentioned

that executive instructions can always supplement the

rules which may not deal with every aspect of a matter.

Even assuming that Rule 7 did not prescribe any

particular minimum, 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.”

following the rules relating to reservation of appointments contained in Rules 14 to 17 of part 2 of the Kerala

State and Subordinate Services Rules, 1958.

(2) The list consisting of not more than double the number of probable vacancies notified shall be

forwarded for the approval of the Governor. The list approved by the Governor shall come into force from

the date of the approval and shall remain in force for a period of two years or until a fresh approved list is

prepared, whichever is earlier.

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CIVIL APPEAL NO.2634 OF 2013

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 in K.H. Siraj (supra) makes it clear that if

the rules governing recruitment provides latitude to the

competent authority to devise its procedure for selection it may

do so subject to the rule against arbitrariness enshrined in

Article 14 of the Constitution. Even K. Manjusree (supra) does

not proscribe fixing minimum marks for either the written test,

or the interview, as an eligibility criterion for selection. What

K. Manjusree (supra) does is to regulate the stage at which it

could be done. This is clear from the decision of this Court in

Hemani Malhotra v. High Court of Delhi .

31 In Hemani

(supra) a contention was raised that the decision in K.

Manjusree (supra) should be regarded as per incuriam for not

having noticed earlier decisions in Ashok Kumar Yadav v.

30

(1984) 2 SCC 141.

31

(2008) 7 SCC 11.

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CIVIL APPEAL NO.2634 OF 2013

State of Haryana

32 as well as K.H. Siraj (supra). Rejecting

the contention, this Court observed:

“16. … what is laid down in the decisions relied upon by

the learned counsel for the respondent is that it is always

open to the authority making the rules regulating the

selection to prescribe the minimum marks both for

examination and interview. The question w hether

introduction of the requirement of minimum marks for

interview after the entire selection process was completed

was valid or not, never fell for consideration of this Court

in the decisions referred to by the learned counsel for the

respondent. While deciding the case of K Manjusree the

Court noticed the decisions in P K Ramachandra Iyer v.

Union of India, Umesh Chandra Shukla v. Union of India

and Durgacharan Misra v. State of Orissa, and has

thereafter laid down the proposition of law….. . On the

facts and in the circumstances of the case this Court is of

the opinion that the decisions rendered by this court in K.

Manjusree can neither be regarded as judgment per

incuriam nor good case is made out by the respondent for

referring the matter to the larger Bench for reconsidering

the said decision.”

29. The ultimate object of any process of selection for entry

into a public service is to secure the best and the most suitable

person for the job, avoiding patronage and favoritism.

Selection based on merit, tested impartially and objectively, is

the essential foundation of any useful and efficient public

service. So, open competitive examination has come to be

accepted almost universally as the gateway to public

services.

33 It 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

32

(1985) 4 SCC 417.

33

Lila Dhar v. State of Rajasthan and others, (1981) 4 SCC 159 paragraph 4.

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CIVIL APPEAL NO.2634 OF 2013

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 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. Thus, in our view,

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. However, if any such benchmark is set, the same

should be stipulated before the commencement of the

34

See paragraph 5 of Lila Dhar (supra)

35

See paragraph 6 of Lila Dhar (supra)

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CIVIL APPEAL NO.2634 OF 2013

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.

The decision in K. Manjusree (supra) does not proscribe

setting of benchmarks for various stages of the recruitment

process but mandates that it should not be set after the stage

is over, in other words after the game has already been played.

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 mal practices in preparation of select list.

(D) RULE DOES NOT APPLY WITH EQUAL STRICTNESS TO

STEPS FOR SELECTION

31. As already noticed in Section (A), a recruitment process

inter alia comprises of various steps like inviting applications,

scrutiny of applications, rejection of defective applications or

elimination of ineligible candidates, conducting examinations,

calling for interview or viva voce and preparation of list of

successful candidates for appointment. Subject to the rule

against arbitrariness, how tests or viva voce are to be

conducted, what questions are to be put, in what manner

evaluation is to be done, whether a short listing exercise is

needed are all matters of procedure which, in absence of rules

to the contrary, may be devised by the competent authority.

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Often advertisement(s) inviting applications are open-ended in

terms of these steps and leave it to the discretion of the

competent authority to adopt such steps 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

36

(2009) 14 SCC 210.

37

(1994) 6 SCC 293.

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CIVIL APPEAL NO.2634 OF 2013

posts, certain basic qualifications and criteria are fixed

and the applicants must possess those basic qualifications

and criteria before their applications can be entertained for

consideration. The Selection Board or the Commission has

to decide as to what procedure is to be followed for

selecting the best candidates from amongst the applicants.

In most of the services, screening tests or written tests

have been introduced to limit the number of candidates

who have to be called for interview. Such screening tests

or written tests have been provided in the concerned

statutes or prospectus which govern the selection of the

candidates. But where the selection is to be made only on

basis of interview, the Commission or the Selection Board

can adopt any rational procedure to fix the number of

candidates who should be called for interview. It has been

impressed by the courts from time to time that where

selections are to be made only on the basis of interview,

then such interviews/viva voce tests must be carried out

in a thorough and scientific manner in order to arrive at a

fair and satisfactory evaluation of the personality of the

candidate.”

34. Likewise in Union of India v. T. Sundararaman

38

where the eligibility conditions referred to a minimum of 5

years’ experience, the selection committee was held justified in

shortlisting those candidates with more than 7 years’

experience having regard to the large number of applicants

compared to the vacancies to be filled . The relevant

observations are being extracted below:

“4. ….Note 21 to the advertisement expressly provides

that if a large number of applications are received the

Commission may shortlist candidates for interview on the

basis of higher qualifications although all applicants may

possess the requisite minimum qualifications. In the case

of M.P. Public Service Commission v. Navnit Kumar

Potdar [(1994) 6 SCC 293 : 1994 SCC (L&S) 1377 : (1994)

28 ATC 286 : JT (1994) 6 SC 302] this Court has upheld

shortlisting of candidates on some rational and reasonable

basis. In that case, for the purpose of shortlisting, a longer

period of experience than the minimum prescribed was

used as a criterion by the Public Service Commission for

38

(1997) 4 SCC 664.

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CIVIL APPEAL NO.2634 OF 2013

calling candidates for an interview. This was upheld by

this Court. In the case of Govt. of A.P. v. P. Dilip

Kumar [(1993) 2 SCC 310 : 1993 SCC (L&S) 464 : (1993)

24 ATC 123 : JT (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”

candidates by holding written examination. It was

observed that no recruitment rules were framed in exercise

of the power under the proviso to Article 309 of the

Constitution and hence no such action could be taken. In

our opinion, however, even in absence of statutory

provision, such an action can always be taken on the basis

of administrative instructions—for the purpose of

“elimination” and “shortlisting” of huge number of

candidates provided the action is otherwise bona fide and

reasonable.”

36. Another example is in respect of fixing different cutoffs

for different subjects having regard to the relative importance

39

(2009) 1 SCC 768.

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CIVIL APPEAL NO.2634 OF 2013

of the subjects and their degree of relevance.

40 These instances

make it clear that this Court has been lenient in letting

recruiting bodies devise an appropriate procedure for

successfully concluding the recruitment process provided the

procedure adopted has been transparent, non-discriminatory/

non-arbitrary and having a rational nexus to the object sought

to be achieved.

(E) PROCEDURE PRESCRIBED IN THE EXTANT RULE NOT

TO BE VIOLATED

37. In Sivanandan C.T. (supra) the issue before the

Constitution Bench was whether for selection minimum marks

could be prescribed contrary to the extant rules and the

advertisement. Answering in the negative, the Constitution

Bench, speaking through one of us (Dr. D.Y. Chandrachud,

CJ), held:

“15. The Administrative Committee of the High Court

decided to impose a cut off for the viva-voce examination

actuated by the bona fide reason of ensuring that

candidates with requisite personality assume judicial

office. However laudable that approach of the

Administrative Committee may have been, such a change

would be required to be brought in by a substantive

amendment to the rules which came in much later as

noticed above. This is not a case where the rules of the

scheme of the High Court were silent. Where the statutory

rules are silent, they can be supplemented in a manner

consistent with the object and spirit of the Rules by an

administrative order.

16. In the present case, the statutory rules expressly

provided that the select list would be drawn up on the

basis of the aggregate marks obtained in the written

examination and the viva -voce. This was further

elaborated in the scheme of examination which prescribed

that there would be no cut off marks for the viva- voce.

This position is also reflected in the notification of the High

40

Banking Service Recruitment Board, Madras v. V. Ramalingam, (1998) 8 SCC 523.

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CIVIL APPEAL NO.2634 OF 2013

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

in the Rules. In that event administrative instructions would

govern the field provided they are not ultra vires the provisions

of the Rules or the Statute or the Constitution. But where the

Rules expressly or impliedly cover the field, the recruiting body

would have to abide by the Rules.

(F) APPOINTMENT MAY BE DENIED EVEN AFTER

PLACEMENT IN SELECT LIST.

40. In Section (C) above, we have already noticed the

Constitution Bench decision of this Court in Shankarsan Das

(supra) where it was held:

41

2024 INSC 647.

Page 42 of 44

CIVIL APPEAL NO.2634 OF 2013

“Unless the relevant 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.”

41. Thus, in light of the decision in Shankarsan Das

(supra), a candidate placed in the select list gets no

indefeasible right to be appointed even if vacancies are

available. Similar was the view taken by this Court in Subash

Chander Marwaha (supra) where against 15 vacancies only

top 7 from the select list were appointed. But there is a caveat.

The State or its instrumentality cannot arbitrarily deny

appointment to a selected candidate. Therefore, when a

challenge is laid to State’s action in respect of denying

appointment to a selected candidate, the burden is on the

State to justify its decision for not making appointment from

the Select List.

CONCLUSIONS

42. We, therefore, answer the reference in the following

terms:

(1) Recruitment process commences from the

issuance of the advertisement calling for applications and

ends with filling up of vacancies;

(2) Eligibility criteria for being placed in the Select

List, notified at the commencement of the recruitment

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CIVIL APPEAL NO.2634 OF 2013

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. Even if such change is permissible under

the extant Rules or the advertisement, the change would

have to meet the requirement of Article 14 of the

Constitution and satisfy the test of non-arbitrariness;

(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/ non-

arbitrary 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

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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.

43. Let the appeals be placed before appropriate Bench for

decision in terms of the answers rendered above, after

obtaining administrative directions from Hon’ble the Chief

Justice.

……….......................................CJI.

(Dr. Dhananjaya Y. Chandrachud)

…….….........................................J.

(Hrishikesh Roy)

...….……......................................J.

(Pamidighantam Sri Narasimha)

…………......................................J.

(Pankaj Mithal)

…..……......................................J.

(Manoj Misra)

New Delhi;

November 7, 2024