Can 'Rules Of Game' Be Changed After Selection Process Has Started? Supreme Court Constitution Bench Reserves Judgment

The Supreme Court Constitution Bench on Tuesday(July 18) reserved its judgement in the batch of petitions raising the issue of whether the "rules of the game" can be changed after the selection process for posts has begun. The bench consisted of Chief Justice of India Dr DY Chandrachud, Justice Hrishikesh Roy, Justice PS Narasimha, Justice Pankaj Mithal, and Justice Manoj Misra.

The bench had started hearing the matter on July 12, 2023. Various cases pertaining to the selection of District Judges in different states as well as other staff of High Courts including translators etc were heard by the bench. Notably, many matters were de-tagged from the main petition on the ground that the facts and circumstances in the cases were not connected to the constitutional question that the 5-Judge Bench was tasked with. In some other cases, such as the one pertaining to the Kerala State Higher Judicial Services Special Rules, 1961, the Supreme Court passed orders without addressing the referred issue of whether the "rules of the game" can be changed midstream as the cases were capable of being decided independently. 

On the final day of the arguments, that is, June 18, 2023, counsels representing various candidates for different State district judicial examinations as well as examinations for the post of translators argued on the arbitrariness of changing the rules of examinations post the conduction of such examinations. 

Dr Ritu Bharadwaj, appearing for petitioners challenging the Rajasthan High Court's notice stating that it would appoint candidates who achieved more than 75% aggregate for the post of translators, argued that the Rajasthan High Court’s decision was wrong as it came after the exam was taken. She stated that candidates would have prepared better if the 75% aggregate was known to them earlier. Subsequently they became barred by age and could not appear for the exam and thus, the HC's decision was arbitrary. 

Advocate Haripriya Padmanabhan argued that public recruitment must not just be carried out fairly but also must be seen to be carried out fairly. She stated that when selection criteria was changed midway by the very authority which laid down the said criteria in the first place, after the persons in charge of laying down the criteria get informed of individual performances of the candidates, an impression was created that the state was not acting fairly and the change was being made to unjustly favour certain individuals. 

Advocate Raghenth Basant provided certain suggestions to the bench and stated that any change in the rules at any stage of the selection process must always be notified to the candidates at the very beginning of the process when the advertisement inviting applications is published. He added that in a situation where a prior disclosure is not possible, then the change of rules must be notified with reasons before each stage of the process has commenced. 

Advocate Kuriakose Varghese, seeking to draw a distinction between eligibility and suitability, stated that while eligibility was to ensure that no deserving candidates were left out of the merit list, suitability was to ensure that only the best were appointed. He argued that the rules meant to determine eligibility had to be prescribed through the advertisement or the parent Rules. 

Advocate PV Dinesh, in his arguments, stated the problem in all the cases was that wherever there were notification or rules, the Supreme Court had always stated that rules should be followed strictly. He added that as per Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417, whenever interview marks are fixed, it should be minimal. In this context, he gave an example of IAS examinations, in which the weightage given to interviews was just 12.2-12.5%. 

Following the arguments raised by the counsels, the bench concluded the hearings and reserved the judgement.

Case Title: Tej Prakash Pathak And Ors. v. Rajasthan High Court And Ors. C.A. No. 2634/2013 and connected matters