Summary
Recruitment of Assistant Engineers under Bihar's 2019 Rules was by written examination alone. After the examination, the provisional merit lists and document verification, the State inserted Rule 8(5) with retrospective effect, giving up to 25 marks and age relaxation for contractual experience. The Supreme Court held that the rules of the game could not be changed once the selection had reached that stage, and directed that the process be completed under the unamended 2019 Rules.
Issues
- Whether the 2022 Amendment Rules inserting Rule 8(5), with retrospective effect from 06.03.2019, could apply to recruitment under the 2019 advertisements after the written examination was held and provisional merit lists were published.
- Whether the provisional nature of the merit list, or the absence of an indefeasible right to appointment, justified changing the selection criteria midway.
- Whether executive memos of 2018 and 2021 providing weightage for contractual service could justify the change.
Provisions considered
- Rules 8, 9, 12 and 13, Bihar Engineering Service Class-II Recruitment Rules, 2019Read together, these rules make a candidate's suitability depend only on total marks in the written examination, with the merit list prepared on those marks. Selection therefore involved only application, written examination and merit list. (¶¶ 6, 24, 25, 26, 27, 29)
- Rule 8(5) (inserted), with retrospective effect from 06.03.2019, Bihar Engineering Service Class-II Recruitment (Amendment) Rules, 2022The rule reduces the written examination to 75 marks, adds up to 25 marks for contractual work experience and relaxes the upper age limit for contractual Assistant Engineers. The Court held that applying it to the ongoing 2019 recruitment fundamentally altered the basis of selection and the criteria for placement in the merit list. (¶¶ 11, 12, 28, 35, 38, 42)
- Proviso to Article 309, Constitution of IndiaThe State's power to make rules, including retrospectively, under this proviso was accepted. The Court held that it cannot be used to take away vested rights or arbitrarily disrupt a selection that has already identified successful candidates through a provisional merit list. (¶¶ 11, 36)
- Articles 14 and 16, Constitution of IndiaChanging the selection criteria after the selection process had begun was held to violate the right to equality, even if the amendment reflected a policy decision. (¶¶ 31, 41)
Held
- Under the 2019 Rules and the advertisements, selection was to be based solely on written examination marks, with no weightage or age relaxation for contractual experience. (¶¶ 27, 29)
- Following K. Manjusree and the Constitution Bench in Tej Prakash Pathak, the criteria for placement in the select list cannot be changed midway through a recruitment process unless the rules or advertisement permit it. Even a permitted change must be non-arbitrary under Article 14. (¶¶ 30, 31, 32, 33)
- Here the selection was at its final stage: the examination had been held, results declared and documents verified. Applying Rule 8(5) retrospectively rewrote the rules after the game had begun and impermissibly changed the criteria for the merit list. (¶¶ 34, 35)
- The power to frame rules retrospectively under the proviso to Article 309 is not unbridled. It cannot be used to take away vested rights or arbitrarily disrupt a selection that has identified successful candidates. (¶ 36)
- The merit list was provisional only in the sense that it was subject to document verification, not to a fundamental change in criteria. Candidates placed on it had a legitimate expectation that selection would be finalised on the advertised criteria. (¶¶ 37, 38)
- The 2018 and 2021 memos were executive instructions and could not override the statutory 2019 Rules in force when recruitment began. Relying on them after candidates challenged the change was an afterthought. (¶ 39)
- Placement on a merit list gives no indefeasible right to appointment, but that principle cannot justify changing the criteria for placement after the examination. No public purpose is served by changing the criteria at that stage, and treating the amendment as a mere policy decision applicable retrospectively was erroneous. (¶¶ 40, 41)
- The Court examined only whether the amendment applied to the ongoing recruitment, not the validity of Rule 8(5) or of the 2022 Amendment Rules. (¶ 14)
Result
Civil Appeal allowed and the High Court's judgment of 05.07.2023 set aside. The 2019 selection is to be finalised under the unamended 2019 Rules on the June/July 2022 merit lists within two months. Appointments made under the High Court's judgment may be ended in accordance with law, or the State may continue those found fit against available vacancies or supernumerary posts without affecting the merit list. SLP (C) No. 8231 of 2025 is disposed of with a direction to the High Court to decide the challenge to the vires of Rule 8(5) on merits, with all contentions open. No costs.