Altering Rules on Appointment to Public Posts | Day 2: Gujarat, Gauhati, Patna, RajasthanAltering Rules on Appointment to Public Posts
Today, the 5-Judge Constitution Bench led by Chief Justice D.Y. Chandrachud continued hearing a batch of petitions tagged with Tej Prakash Pathak v Rajasthan High Court. These petitions dealt with ‘changing the rules of the game’ during a selection process for a public post after the selection process was initiated.
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.
Four Petitions De-tagged from the Constitution Bench Case
The Bench heard and de-tagged petitions from Gujarat, Gauhati, Patna and Rajasthan today. They held that the facts and circumstances in each of these cases were not connected to the main constitutional question that the 5-Judge Bench was tasked with.
Adv. Shraddha Deshmukh appeared for the petitioners in the Gujarat High Court case. She informed the Bench that their case was not related to Tej Prakash. The questions in her case pertained to the Shetty Commission Report and the All India Judges Case, 2023.
With no objections from the counsel for the Gujarat High Court, the Bench de-tagged the case and directed that it be placed before a 2-Judge Bench of the Supreme Court.
The batch of petitions concerned the selection process for Grade I Judicial Officers in 2011. The appointment was notified based on the Assam Judicial Rules, 2003. The petitioners claimed that the High Court set a cut-off for the viva voce after the interview was conducted. The Gauhati High Court, however, informed the Bench that the selection was made based on the aggregate marks obtained by the candidates in the merit list.
The Bench found that the selection was based on the cumulative merit list, and since there was no ‘change in the rules of the game’, there were no grounds for litigation. And so the case was dismissed.
The counsels for both, the Patna High Court as well as the exam candidates, informed the Bench that their particular case did not fall within the scope of the Constitution Bench. Their case dealt with a candidate’s right to re-evaluation and not ‘changing the rules of the game’. They stated that they had previously attempted to de-tag from the referred case but were unsuccessful.
The Bench de-tagged the case and directed that it be placed before a 2-Judge Bench in two weeks.
The lead petition of the case was from the Rajasthan High Court and concerned the selection of in-service candidates for the post of translators. In 2009, the Rajasthan High Court issued a notice stating that they would appoint candidates who achieved more than 75% as translators. Dr. Ritu Bharadwaj, appearing for the petitioners, argued that Rajasthan High Court’s decision was wrong as it came after the exam was taken.
The Rajasthan High Court argued that the notification did not disqualify any candidates. Rather it had simply set a standard on who it would appoint among the candidates who met the 75% mark in the exam. The High Court retained the right to select the best among the pool and had no obligation to fill all posts. They decided to choose only three candidates to ensure only the best were selected. There was no disqualification of candidates who secured higher marks.
The Bench agreed with the Rajasthan High Court, that this was not a ‘change in the rules of the game mid-stream’. No candidate was barred from appearing for the qualifying exam. After the merit list was published, the High Court simply decided to pick only among those candidates who had more than 75% of the marks. Further, all the selected candidates had a higher aggregate than the disqualified candidates. Therefore, the Bench dismissed the petitions.
Conflict in Previous Judgements of the Court?
Adv. Haripriya Padmanabhan and other counsels present in the Court urged the Bench to refocus their attention on the core question tasked to the Constitution Bench.
They stated that previous decisions of the Court 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) were conflicting. While in the first case, a change in the rules for selection was allowed, in the subsequent two cases, it was not.
The Bench heard the facts and decisions of each case in detail and seemed to agree that the factual circumstances of each case were different.
But since the constitutional question needed an answer, they went on to deliberate if and when ‘the rules of the game can be changed’ by a public employer and whether the test of arbitrariness was sufficient. Could the rules be changed if found to be necessary? \ What will be the test of arbitrariness in such cases?
The Bench asked the counsels to deliberate on these questions and propose a mechanism for future appointments. The Court will hear the case again on July 18, 2023, and will take upon the task of answering the reference question.