New Delhi [India], November 7 : The Supreme Court on Thursday said that the rules of the game for recruitment in public services can't be changed mid-way through the selection process unless the relevant rules permit so and also remarked that procedure must be transparent and non-discriminatory.
"Recruiting bodies, subject to the extant rules, may devise an 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," the top court said.
A bench of Chief Justice of India DY Chandrachud, Justices Hrishikesh Roy, PS Narasimha, Pankaj Mithal, and Justice Manoj Misra delivered the verdict.
"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 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," the top court said while holding that the recruitment process, cannot be changed midway through the recruitment process unless the extant rules so permit.
"Eligibility criteria for being placed in the select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant rules so permit, or the advertisement, which is not contrary to the extant rules so permit," the top court added.
The Supreme Court also mentioned that 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.
The top court further clarified that 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 top court said.
"Recruiting bodies, subject to the extant Rules, may devise appropriate procedures 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," the Supreme Court added.
The top court further said that 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," it said.
The Supreme Court further said that the placement in the select list gives no indefeasible right to appointment.
"The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list," it said.
"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 the top seven 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 an appointment from the Select List," the top court said
The Supreme Court was dealing with whether the rules of the game can be changed midstream after a selection process is instituted.
The matter was referred to a five-judge bench by a three-judge bench when it was hearing the case titled "Tej Prakash Pathak and Others" versus "Rajasthan High Court and others".