Changing the Rules of the Game: Selection and Appointment in Public Service

On 18-7-2023, the Supreme Court reserved the judgment in the case relating to what is permissible under the scope of changing the rules of the game in cases relating to a process of selection and appointment to a post in public service. The reference was made after a 3-Judge Bench¹ doubted the correctness of the decision in K. Manjusree v. State of A.P.² It is this facet of public service law that is the subject of this article, which is structured as follows: first, the contours of the rules of the game, along with the issue leading to the reference to the Constitution Bench, are introduced. Second, it is followed by a summary of the judgment in K. Manjusree³. Thereafter, the cases of Tej Prakash Pathak⁴ and State of Haryana v. Subash Chander Marwaha⁵ have been summarised. The chapter also comments on the broad problem with each of the judgments and the essence of the question that arises for consideration before the Constitution Bench. Third, the legal arguments, based on relevant principles of constitutional and administrative law, in favour of the decisions on either side of the spectrum have been elaborated. Using the arguments advanced at the Bar and then combining them with the author’s reasons-backed assertions, it is argued that one of the objectives that should ultimately guide, or at the very least, inform, the prospective pronouncement is the concept of the rule of law. The fourth chapter delves into the answer to the question, which led to the reference to the Constitution Bench. Fifth, after summarising the article, the author, to conclude, argues why the principles of constitutional and administrative law must be pressed into service before reaching a decision.

Contours of changing the rules of the game

In legal colloquial terms, a facet of changing the rules of the game relates to the selection to a post in public services. The “game” is the process of selection and appointment, and the “rules” made by the competent authority prescribe, inter alia, who can play the game and how the winners of the game are to be selected.

There are a couple of strands of changing the rules of the game which are of utmost relevance for the present discussion:

Rules that are not permissible to be changed: Concerning bringing changes in who can play the game i.e. the eligibility criteria, there appears to be unanimity of judicial decisions. In the respectful opinion of the author, the Tej Prakash Pathak reference order has rightly labelled it as:

15. … a salutary principle not to permit the State or its instrumentalities to tinker with the “rules of the game” insofar as the prescription of eligibility criteria is concerned … in order to avoid manipulation of the recruitment process and its results.⁶

Stages at which the rules can be changed: According to one of the judgments of the Supreme Court, the rules of the game cannot be altered by the authorities concerned after the selection process has commenced. Logically, it will mean, and legally, it has been recognised that the change is impermissible after the game has ended.⁷ However, in Tej Prakash Pathak⁸, it has been observed that under our constitutional scheme, an absolute and non-negotiable prohibition against retrospective lawmaking is made only in Article 20(1)⁹ of the Constitution. A corollary is that any other legal right can be changed, which can take any form, subject to legal constraints such as being non-arbitrary.

It is this disagreement that has led to the present reference. The two diverging routes taken in different decisions of the Supreme Court are explained momentarily.

Two diverging routes, two different destinations

K. Manjusree v. State of A.P.

Facts: The process of selection and appointment related to the post of District and Sessions Judge (Grade II). As per the governing rules, there was no prescription of any criteria. The Administrative Committee, in its Resolution dated 30-11-2004, prescribed the method and manner of selection and prescribed 75 marks for the written examination and 25 marks for the oral examination. It also resolved that minimum qualifying marks for each criterion shall be as prescribed earlier. To comprehend the earlier prescription, reference has to be made to two previous resolutions — an interpretation of these two resolutions required obtaining minimum marks in the written exam. However, there was no prescription for minimum marks in the interview. After the interview, a select list was prepared with ten candidates. Before approving the select list, the authority prescribed minimum qualification marks in the interview and also mentioned that those who did not secure minimum marks would be deemed to be failed.

Judgment: The question that came up before the Court was whether the procedure adopted by the authority in preparing the fresh selection list by applying the requirement of minimum marks for the interview was legal and valid. The answer was an emphatic no:

27. … introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible.¹⁰

Through a reading of this passage (and the judgment), what is clear is the stage at or after which there cannot be any alteration. However, what is not so discernible is why the changes cannot be introduced. One of the reasons for the same being impermissible, which can be culled out from the judgments¹¹ referred to in K. Manjusree¹², is that the same is impermissible by applicable rules governing how the game is supposed to be played.

Tej Prakash Pathak v. State of Rajasthan

Facts: The recruitment process related to 13 posts of translators. As per the applicable rules, the eligible candidates had to appear for a written examination. After that, they had to face a personal interview. Though twenty-one candidates appeared, only three were declared successful. When the process was challenged, it came to light that after the exams were conducted, the Chief Justice ordered only the candidates securing 75 per cent marks to be selected to fill the posts.

Judgment: A three-Judge Bench, speaking vide Chelameshwar, J. considered the application of K. Manjusree’s¹³ ratio to the facts of the present case and opined that, according to that case, notwithstanding their performance in the exam, thirteen candidates ought to have been selected. In the unanimous opinion of the Bench, this would not be in the public interest or the goal of establishing an efficient administrative machinery. Before proceeding further with the discussion, a comment on this phrase is necessary. With due respect to the learned Judge, the author opines that the larger public interest is not different from establishing an efficient administration. Instead, the former is, in this context, served by the establishment of the latter, which, prima facie, appears to be the reason behind the decision of the Chief Justice to treat the exam as competitive and prescribe a minimum stipulation for the suitability of the candidates.

After that, the Court referred to and relied upon the decision of the Supreme Court in Subash Chander Marwaha.¹⁴ In this case, the relevant rules prescribed the minimum qualifying marks of 45 per cent. However, only the candidates who secured 55 per cent or above were appointed, with the remaining vacancies left unfilled. The basis of the decision put forward by the State Government was to maintain high standards of competence in judicial service. According to the judgment, the High Court had also recommended an affixation of 55 per cent marks as the cut-off for selection. According to the Supreme Court, there were only two situations in which the list can be challenged: (i) if the authority went outside the select list; or (ii) if the appointment was made not in order of merit. Since these conditions were not fulfilled, there was no justification for the High Court to issue a mandamus directing the appointment of respondents before the Supreme Court.

While K. Manjusree¹⁵ presented one extreme by not elaborating on the relevant factors weighing with the authority concerned, the other extreme is exemplified by Subash Chander Marwaha¹⁶, in which the perspective of only the authority and not the selected candidates is discussed. The latter decision correctly mentions that being selected does not mean one gets an indefeasible right to be appointed. However, the judgment on multiple occasions says that the exam is conducted to show who an “eligible” candidate is.¹⁷ It appears that eligibility was conflated with the suitability of the candidate. In other words, the Supreme Court in Subash Chander Marwaha¹⁸ does not acknowledge and, consequently, delve into whether a candidate who, after participating in the game, gets selected according to the unchanged rules stands on a better footing than a candidate who is merely eligible.

Similar is Tej Prakash Pathak¹⁹, which, to reiterate, has mentioned that there is only one express constitutional bar against retrospective law-making power. However, it left open a window when it stated that the exercise of such power must comply with Articles 14 and 16 of the Constitution²⁰. The question that comes through this window is whether these fundamental rights or other provisions create an absolute bar on exercising such powers concerning changing the rules after the game has begun. If the answer is in negative, a further question arises: When can the rules of the game be changed?

Legal arguments

Legitimate expectation

The dictionary meaning of the term legitimate refers to something reasonable or acceptable and allowed by law.²¹ Expectation is defined to mean strong beliefs that one has about the proper way someone should behave, or something should happen.²² The combined dictionary meaning of these words gives us the legal definition of the phrase, which is judicially stated in the following words:

15. … It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term “established practice” refers to a regular, consistent, predictable, and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical, and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation.²³

In the present context, the expectation of benefit is to be considered according to the rules of the game based on which the candidate decided to and, thereafter, participated in the game. The expectation is arguably legitimate since its basis is consistency and predictability. However, arguments can be advanced where the basis of expectation cannot be considered reasonable. For example, the argument that if the candidates were to be aware of the stipulation of minimum marks to be obtained in the interview beforehand, they would have prepared for the interview more seriously, the basis of expectation is invalid at best and unreasonable and casual at worst.

Except not in the public interest

One of the primary exceptions negativing the application of the doctrine of legitimate expectation is if the decision by the administration has been taken in the public interest. Consciously or otherwise, Tej Prakash Pathak does refer to the exception without expressly referring to the rule.²⁴ It is self-explanatory that prescribing conditions regarding a candidate’s suitability after the game has begun or been played is, or at the very least appears to be, in the public interest.

It is an accepted proposition of law that after a candidate is provisionally selected, a certain degree of legitimate expectation of the selection being continued also comes into existence.²⁵ However, notwithstanding this legitimate expectation, a candidate who finds their name in the select list as selected for appointment to a post does not acquire an indefeasible right to be appointed without any specific rule entitling him to such appointment. The only situations in which the candidate could be aggrieved by their non-appointment is if the administration acts arbitrarily or for no bona fide reasons.²⁶

If the candidate who has been selected does not get an indefeasible right to be appointed, it should logically mean that a candidate who has participated in the process will not get such a right, notwithstanding his success according to the erstwhile rules. The reason for such an assertion is that it can prevent the selection of the very best candidates. The basis is sourced to the larger public interest. However, this extension of logic cannot always be correct.

Endgame — The rule of law

During the course of hearings, Advocate Ritu Bhardwaj argued that if the same stipulation with regards to minimum marks is not carried forward, then the individuals participating in one process of selection will be denied equality of treatment with candidates undergoing the process of selection in the next year, as they may not be subjected to stricter scrutiny. This argument, in isolation, may hold little water. It may be interpreted to mean that the candidate is seeking an easy way out, and he should compare the process he is subjected to with others who have participated in the same game along with him. However, this skeleton is supplied with flesh and blood when combined with the subsequent arguments put forth by Advocate Haripriya Padmanabhan when she stated that public recruitment, apart from being carried out fairly, should be seen to be carried out fairly.

The recruitment to posts in public service is an administrative action. It thus becomes necessary that there must be fairness in administrative action. The Supreme Court, while explaining the concept, stated that:

1. … As a matter of fact, fairness is synonymous with reasonableness: And on the issue of ascertainment of the meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed — it is the appreciation of this common man’s perception in its proper perspective which would prompt the court to determine the situation as to whether the same is otherwise reasonable or not.²⁷

Apart from being synonymous with fairness, another feature of reasonableness is that it is the antithesis of arbitrariness.²⁸ In the context of service law, the method for achieving the nexus of reasonableness and fairness in administrative action to achieve the objective of maintaining the rule of law is laid down by a Constitution Bench of the Supreme Court in the following words:

22. … Legal rules must govern the recruitment and conditions of public servants so that there is no arbitrariness or inequality in state action in regard to them and the rule of law is not eroded. And such rules should preferably be framed without avoidable delay and after consultation with groups which apprehend discriminatory treatment as that would go a long way to produce a sense of contentment and satisfaction. We make these observations not with a view to casting any reflection on the administration but to highlight a problem which has come to our notice quite often, in the hope that it will help appreciate the social dimensions of the problem and the damage to public interest which may be likely to result if the problem is not promptly and satisfactorily resolved.²⁹

Diverse situations and their solutions

Following the foregoing discussion, two situations emerge where the power of altering the rules of the game can be exercised. After mentioning each situation, the author provides a solution to both.

Where the rules or other relevant document (like the advertisement) do not permit the authority to make a change in the rules of the game

In the opinion of the author, the clear-cut solution to this situation is provided in the observations of the Supreme Court in Ramchandra Shankar Deodhar case³⁰. If we weigh the scales in the hands of Lady Justice, it would appear that on one side, the primary argument is the achievement of public interest by appointing (only) the most suitable candidate(s). The consequential benefit is saving scarce State resources coupled with ensuing efficiency in administration. But, if we see the other scale, there is (i) legitimate expectation on the part of successful candidates according to the erstwhile rules and who stand on a better footing than the candidates who have merely participated; (ii) achievement of public interest by maintaining an element of certainty, which will prevent any chance of arbitrariness to creep in, and in turn, prevent erosion of the rule of law. A counterargument that is prima facie attractive is that the presumption of State action is in favour of constitutionality. Additionally, there is a requirement for conferring an element of discretion to the authority concerned in performing administrative functions. However, the author argues that if the rules do not permit any change in how the game is supposed to be played, there is no basis for exercising discretion, notwithstanding its apparent justification. If there is no basis and discretion is still exercised, it will not reflect reasonableness in administrative actions, as was the case in Tej Prakash Pathak.³¹ As per the foregoing discussion, the step will, in the final reckoning, be against the rule of law.

Where the rules permit the authority to change the rules of the game

There cannot be an absolute bar, as the administration would have both the justification and the basis for making such retrospective rules. However, the exercise of power to change the rules of the game cannot be exercised arbitrarily. Rather, it must be done within constitutionally permissible limits. In the author’s respectful opinion, the suggestions put forward by Ms Padmanabhan during the course of her arguments reconcile most, if not all, of the potential conflicts that can arise in the situation. The suggestions³² have been enumerated below:

1. Generally, the criteria for the selection of candidates must remain the same after the process has commenced.
2. In exceptional cases, changes can be made. However, those changes must be published in writing and informed to the candidates.
3. Apart from the changes, the reasons for the changes must be disclosed. This will show an application of mind. Additionally, it will provide precise ground towards which the exercise of judicial review is directed.
4. Changes in the rules of the game must be published before the merit list is out. This is to ensure no appearance of favoritism or partiality in the process.

5. The fifth suggestion put forth was that the merit list must be followed when appointing candidates. This is an accepted judicial position as per the decision in Subash Chander Marwaha³³.

In the end

The need for an authoritative pronouncement on the scope of changing the rules of the game arose after Tej Prakash Pathak³⁴ doubted the correctness of the statement of law formulated in K. Manjusree³⁵, which, as per the former, was an absolute prohibition against retrospective law-making power regarding the rules of the game, the game being the process of selection and appointment to a post in public service. As shown earlier, the fundamental flaw with precedents was that they needed to factor in the interests of every stakeholder. During the course of the discussion, it emerged that the retrospective law-making power can be broadly exercised in two situations depending on the permissibility in the rules. In the solutions that have been provided, the author has tried to correct the said flaw by factoring in the interest of every stakeholder: the candidate, the administration and its need to appoint the most suitable candidates to ensure efficiency in administration, keeping in view the goal of public interest while not losing sight of the need to maintain the rule of law. The author has opined that there must be absolute prohibition regarding its exercise in the first situation i.e. where the rules are completely silent. In the other situation, the power can be exercised subject to certain legal constraints, which are generally contained in the rules governing administrative action.

It is true that the rules primarily govern any administrative action. However, the rules, along with the scheme and advertisement, are not the be-all and end-all of the process of selection and appointment. The process is a facet of public service law. Public service law is a specialised branch of administrative law.³⁶ And even if the separate existence of administrative law from constitutional law is at no point in time disputed, however, if one draws two circles of the two branches of law, at a particular place, they are bound to overlap, depicting their undeniable interdependence. This area has been termed watershed in administrative law in India. In this watershed, which encompasses public service law, one can include the whole control mechanism provided in the Constitution to control the administrative authorities. It further provides for the study of those provisions of the Constitution which place fundamental fetters on any administrative action i.e. Part III of the Constitution.³⁷ Applying syllogism, it logically follows that the provisions of the Constitution and the principles of constitutional law are applicable to the process of selection and appointment. As a result, it can be reasonably stated that inter alia, the doctrine of legitimate expectation and its exception, the requirement of fairness in administrative action, the concept of the rule of law, and the exercise of judicial review all come together and play a part in the game of selection and appointment to a post in public service. To conclude, the varying rules, schemes and advertisements might govern the process, but ultimately, it is the provisions of the Constitution and principles of constitutional and administrative law that supervise the game and how it is supposed to be played.