New Delhi: The Supreme Court has reaffirmed that the “rules of the game cannot be changed midway” while striking down Bihar’s attempt to retrospectively alter recruitment norms after the selection process had substantially progressed.
A Bench of Justice J.K. Maheshwari and Justice Vijay Bishnoi heard appeals arising out of writ petitions challenging amendments to the Bihar Engineering Services Class-II Recruitment Rules, 2019, introduced through the Bihar Engineering Service Class-II Recruitment (Amendment) Rules, 2022. The controversy centred on the insertion of Rule 8(5), which granted additional weightage and age relaxation to contractual Assistant Engineers after the written examination had already been held and provisional merit lists prepared.
Under the original 2019 Rules, recruitment to the posts of Assistant Engineer (Civil/Mechanical/Electrical) in various departments of the State of Bihar was to be based solely on marks obtained in a competitive written examination conducted by the Bihar Public Service Commission (BPSC). Pursuant to four advertisements issued in 2019, written examinations were held on 12 March 2022 and provisional merit lists were published in June–July 2022, following which successful candidates were called for document verification.
After these steps had been completed, the State notified the 2022 Amendment Rules on 09 November 2022, inserting Rule 8(5) with retrospective effect from 06 March 2019. The new provision reduced the weightage of written examination marks to 75 marks and introduced up to 25 additional marks for contractual work experience, along with relaxation in the upper age limit for contractual Assistant Engineers serving in government and related institutions under the State of Bihar.
Candidates who had already made it to the provisional merit lists challenged the retrospective application of the amendment before the Patna High Court, contending that it altered the selection criteria at the fag end of the process and violated Articles 14 and 16 of the Constitution. The High Court dismissed the petitions, viewing the amendment as a permissible policy decision under the State’s power to frame rules under the proviso to Article 309 and holding that inclusion in a merit list did not create an indefeasible right to appointment.
On appeal, the Supreme Court framed the key issue as whether the 2022 Amendment Rules could be made applicable to the recruitment initiated under the 2019 Advertisements after the written examination had been conducted and provisional merit lists had been published. Upon analysing Rules 8, 9, 12 and 13 of the 2019 Rules, the Court held that the statutory scheme required suitability for appointment to be determined exclusively on the basis of the total marks obtained in the written examination.
The Court observed that the selection process under the 2019 Rules involved three stages: application, written examination (including any preliminary test), and preparation of the merit list solely on the basis of written marks. By introducing a new element of contractual experience and altering the weightage of written marks after these stages had substantially concluded, the State had effectively “rewritten the rules of the game” after the game had been played, which the Court held to be impermissible.
Relying on its earlier rulings in K. Manjusree v. State of Andhra Pradesh and the Constitution Bench decision in Tej Prakash Pathak v. Rajasthan High Court, the Supreme Court reiterated that eligibility criteria and benchmarks for inclusion in a select list, once notified at the commencement of a recruitment process, cannot be changed midway except where clearly authorised by the governing rules or the advertisement and even then must pass the test of non-arbitrariness under Article 14. The Court stressed that while placement in a select list does not confer an indefeasible right to appointment, as held in Shankarsan Dash v. Union of India, this does not entitle the State to retrospectively alter the criteria for placement in that very list after the examination has concluded.
The State’s attempt to justify the amendment by invoking earlier General Administration Department memoranda of 2018 and 2021 providing for weightage to contractual employees was also rejected. The Court noted that these were executive instructions which had not been incorporated into the statutory 2019 Rules at the time the 2019 Advertisements were issued and could not be retrospectively read into the recruitment process to the detriment of candidates who had no notice of such criteria.
Holding that the retrospective application of Rule 8(5) disturbed a nearly concluded selection process and violated Articles 14 and 16 of the Constitution, the Supreme Court set aside the judgment of the Patna High Court. It directed that the recruitment pursuant to the 2019 Advertisements be finalised strictly in accordance with the unamended 2019 Rules, on the basis of the written examination and the provisional merit lists already published, without recasting the lists in light of the 2022 Amendment Rules.
Case Title: Abhay Kumar Patel & Ors. v. State of Bihar & Ors. (and connected matter)
