Altering Rules on Appointment to Public Posts | Day 3: Bench Reserves Case for JudgementAltering Rules on Appointment to Public Posts
Today, the 5-Judge Constitution Bench led by Chief Justice D.Y. Chandrachud reserved for judgement after hearing the arguments, in the challenge to the altering of rules to public posts. Picking up from the last hearing, the Bench heard propositions from lawyers on how to ensure that rules are not altered arbitrarily.
The common consensus of all the lawyers appeared to be that the rules could not be altered at a selection level without prior information to the candidate. The selection level includes all the stages before the merit list of the candidates eligible is published.
After the merit list is published, the State has the discretion to shortlist the most suitable candidates to fill in vacancies. This included selecting only those candidates from the merit list who received a certain percentage of marks.
On September 17, 2009, the Rajasthan High Court issued a notification under the Rajasthan High Court Staff Service Rules, 2002 (the Rules) for the recruitment of 13 translators. The Rules required candidates to appear for a written examination and a personal interview. However, after the completion of these two steps, then Chief Justice of the Rajasthan HC Jagadish Bhalla, decided that candidates must receive 75% or above in their examination to be selected for the post. As a result, only three of the 21 candidates were selected.
The unsuccessful candidates approached the Rajasthan High Court in 2010, and then the Supreme Court in 2011. They argued that ‘changing the rules of the game after the game was played’ was impermissible and violated their right to equality and non-discrimination under Art. 14 of the Constitution.
A 3-Judge Bench of the Supreme Court referred the case to a larger bench in 2011. The Order stated that the larger bench must clarify what rules can and cannot be changed during the recruitment process for public posts.
A 5-Judge Constitution Bench led by Justice Indira Banerjee heard the case in August 2022 and listed it for arguments in September 2022. However, the bench decided to adjourn the case to a later date because of the retirements of Justices Banerjee and Hemanth Gupta.
Similar other cases relating to public appointments from six other states were tagged together to this case and were assigned to a Constitution Bench.
On June 26 2023, this batch of petitions was assigned to a new 5-Judge Constitution Bench. The new Bench consists of Chief Justice D.Y. Chandrachud, Justice Hrishikesh Roy, P.S. Narasimha, Pankaj Mithal and Manoj Misra. The Bench began hearing the petitions on July 12, 2023.
The Selection Process Must Not Only Be Fair But Must Also Appear to Be Fair
Adv. Haripriya Padmanabhan shouldered a heavy load of arguments today. She argued that for a selection process to be reasonable and non-arbitrary, the candidates and employers must know the rules that govern it beforehand. She claimed that a fair process is one that leaves no room for suspicion.
She clarified that the state can either fix a cut-off or shortlist candidates to ensure that only the most suitable candidates are appointed. But, this could only be done at the appointment stage after the merit list of selected candidates has been published. Even this discretion of the State was not absolute. It has to be within the contours of reasonableness. To this end, she proposed the following recommendations to ensure transparency in the selection process:
- As a rule, the criteria for the selection of candidates must not be altered after the process has commenced.
- Any alterations to the criteria should be treated as exceptions to the rule. They must be published in writing and informed to the candidates before the process.
- The reasons for the alterations must be clearly disclosed in writing to ensure that they have not been made to favour certain candidates.
- Any alterations to the appointment process must be published before the merit list of selected candidates is out. This would ensure that there is no partiality or favouritism at play.
- The merit order must be followed when appointing candidates. A person with a lower merit rank cannot be appointed over a person with a higher rank.
Lessons from Previous Cases
Padmanabhan drew the Bench’s attention to a series of case laws on the matter of changing the rules. These included State of Haryana v Subhash Chander Marwaha (1973), Umesh Chandra Shukla v Union of India (1985) and K. Manjusree v State of Andhra Pradesh (2008) Sureshkumar Lalitkumar Patel vs The State Of Gujarat (2023). She pointed out that these cases had different versions of criteria alterations.
In one the Rules were silent on modifications of criteria and the notification allowed it. In some, the Rules allowed modification and the notification prohibited any change. In some cases, the Rules deny modification, but the advertisement of the State allows it.
Therefore, there were many different ways in which the conflicts were and can be created. In order to ensure complete transparency, Padmanabhan recommended that if selection criteria were to be modified, both, the rules governing the selection process as well as the advertisement/notification calling for applications must allow such modification of the criteria.
No Conflict Between the Court’s Previous Decisions
Adv. Raghenth Basant debunked the questions raised in the lead petition—Tej Prakash (2013) about conflicting Judgements in State of Haryana v Subhash Chander Marwaha (1973), Umesh Chandra Shukla v Union of India (1985) and K. Manjusree v State of Andhra Pradesh (2008).
He claimed that the Bench in Umesh Chandra (1985) and Manjushree (2008), rules were altered at the selection stage before the merit list was published. This resulted in many deserving candidates not qualifying at the selection stage itself. This was arbitrary and unconstitutional as held by the Court.
On the other hand, in Marawaha (1973) and Tej Prakash (2013) the issue was shortlisting selected candidates and appointing them after the merit list of selected candidates was published. The Court held that this was not wrong as the State had the discretion to ensure that only the most suitable persons were appointed.
Therefore, the Bench in Tej Prakash (2013) was wrong to state that there was a conflict in the judgements of these cases as they dealt with completely different facts.
Balancing the Pleasure Doctrine
After clarifying that the Court’s judgements in previous cases were not in conflict with each other, Raghenth proposed the following suggestions to make the selection process more transparent:
- Any change in the rules at any stage of the selection process (merit list, the viva voce or the aggregate scores) must be notified at the very beginning of the process when the advertisement inviting applications is published.
- In the event that such a prior disclosure is not possible, then the change of rules must be notified with reasons before each stage of the process has commenced.
- If the advertisement stated that the candidates would be selected after an aggregate score of the written and viva rounds, then the rules cannot be altered at a later stage to make selections on the basis of only one of them.
Justice P.S. Narasimha remarked that this was the way to balance the Pleasure Doctrine. This doctrine essentially allows the State to set-aside contractual obligations and procedural rules in order to ensure only the most suitable persons are appointed for public posts.
Eligibility v Suitability
Adv. Kuriakose Varghese in his propositions submitted that there was a distinction between eligibility and suitability. Eligibility was to ensure that no deserving candidates were left out of the merit list. Suitability came at a later stage to ensure only the best were appointed.
He stated that rules at an eligibility level had to be prescribed in writing by the advertisement or the Rules governing the posts. The criteria could not be altered based on ‘silent interpretations’ of the Rules. In other words, something directly prohibited by the rules could not be done indirectly.
Adding to the recommendations made by advocates Padamnabhana and Basant, he recommended an ADR system to be formed at each High Court to tackle such issues in the future.
The Bench also heard submissions from advocates. Ritu Bharadwaj, P.V. Dinesh, Vijay Hansaria and received a written note from Additional Solicitor General K.M. Nataraj and reserved judgement in the case.