Holding

Eligibility criteria fixed at the start of a recruitment process cannot be altered mid‑stream unless expressly permitted by the governing rules or advertisement and such alteration must satisfy the non‑arbitrariness requirement of Article 14.

Summary

The appellants challenged the Rajasthan High Court’s decision to fix a 75% cut‑off for the translator recruitment, alleging that it altered the eligibility criteria after the recruitment process had begun. The Supreme Court examined when a recruitment process starts and ends, the constitutional doctrine that the "rules of the game" cannot be changed mid‑stream, and whether the K. Manjusree decision conflicted with earlier precedents such as Subash Chander Marwaha. It held that eligibility criteria notified at the commencement of recruitment may be altered only if the extant rules or advertisement permit such change and the alteration must satisfy Article 14’s non‑arbitrariness test. The Court clarified that K. Manjusree is not at variance with Subash Chander Marwaha because the former deals with placement on the select list, while the latter concerns appointment from the list. Recruiting bodies may devise procedural rules for selection provided they are transparent, non‑discriminatory and have a rational nexus, but they cannot violate statutory rules. Placement on a select list does not confer an indefeasible right to appointment, though the State must not arbitrarily deny appointment when vacancies exist. The reference was answered, directing the matter to the appropriate Bench for further orders.

Issues considered

When does a recruitment process commence and end?
Whether the doctrine that ‘rules of the game’ must not be changed mid‑process applies to eligibility criteria and selection procedures.
Whether the decision in K. Manjusree conflicts with earlier case law, particularly Subash Chander Marwaha.
Whether recruiting bodies can alter procedural rules for selection after the process has begun.
Whether the extant statutory rules can be violated by the recruiting authority.
Whether a candidate placed in the select list has a guaranteed right to appointment.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309
Kerala Judicial Service Rules, 1991
Rajasthan High Court Staff Service Rules 2002

Subjects

Service LawRecruitmentAppointmentRules of the gameRecruiting bodiesAppropriate procedureRecruiting processSelect listRight to appointmentExtant RuleArticle 14Article 16Article 309TransparentNon-discriminatoryNon-arbitraryEligibility criteriaLegitimate expectationRule against arbitrariness

Judgment

[2024] 12 S.C.R. 28 : 2024 INSC 847

Tej Prakash Pathak & Ors.
v.
Rajasthan High Court & Ors.
(Civil Appeal No. 2634 of 2013)
07 November 2024
[Dr Dhananjaya Y Chandrachud, CJI, Hrishikesh Roy,
Pamidighantam Sri Narasimha, Pankaj Mithal and
Manoj Misra,* JJ.]

Issue for Consideration
(a) When the recruitment process commences and comes to an
end; (b) Basis of the doctrine that ‘rules of the game’ must not
be changed during the course of the game, or after the game is
played; (c) Whether the decision in K. Manjusree is at variance with
earlier precedents on the subject; (d) Whether recruiting bodies
can devise an appropriate procedure for concluding recruiting
process; (e) Whether the procedure prescribed in the Extant Rule
can be violated; (f) Whether appointment could be denied even
after placement in select list.

Headnotes†
Service Law – Recruitment – Commencement and end of the
recruitment process:
Held: The process of recruitment begins with the issuance of
advertisement and ends with the filling up of notified vacancies –
It consists of various steps like inviting applications, scrutiny of
applications, rejection of defective applications or elimination of
ineligible candidates, conducting examinations, calling for interview
or viva voce and preparation of list of successful candidates for
appointment. [Para 13]

Service Law – Recruitment – Basis of the doctrine that ‘rules
of the game’ must not be changed during the course of the
game, or after the game is played:
Held: The doctrine proscribing change of rules midway through
the game, or after the game is played, is predicated on the rule
against arbitrariness enshrined in Article 14 of the Constitution –
Article 16 is only an instance of the application of the concept of
* Author
[2024] 12 S.C.R. 29

Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.

equality enshrined in Article 14 – In other words, Article 14 is the
genus while Article 16 is a species – Article 16 gives effect to the
concept of equality in all matters relating to public employment –
These two articles strike at arbitrariness in State action and
ensure fairness and equality of treatment – Eligibility criteria for
being placed in the Select List, notified at the commencement
of the recruitment process, cannot be changed midway through
the recruitment process unless the extant Rules so permit, or
the advertisement, which is not contrary to the extant Rules, so
permit – Even if such change is permissible under the extant
Rules or the advertisement, the change would have to meet the
requirement of Article 14 of the Constitution and satisfy the test
of non-arbitrariness. [Paras 14, 42(2)]

Service Law – Recruitment – Whether the decision in
K. Manjusree is at variance with earlier precedents on the
subject:
Held: K. Manjusree case is not at variance with earlier precedents –
The decision in K. Manjusree does not proscribe setting of
benchmarks for various stages of the recruitment process but
mandates that it should not be set after the stage is over, in
other words after the game has already been played – This view
is in consonance with the rule against arbitrariness enshrined in
Article 14 of the Constitution and meets the legitimate expectation
of the candidates as also the requirement of transparency in
recruitment to public services and thereby obviates malpractices in
preparation of select list – The decision in K. Manjusree case lays
down good law and is not in conflict with the decision in Subash
Chander Marwaha case – Subash Chander Marwaha deals with
the right to be appointed from the Select List whereas K. Manjusree
deals with the right to be placed in the Select List – The two cases
therefore deal with altogether different issues. [Paras 18, 30, 42(3)]

Service Law – Recruitment – Whether recruiting bodies can
devise an appropriate procedure for concluding recruiting
process:
Held: Recruiting bodies, subject to the extant Rules, may devise
appropriate procedure for bringing the recruitment process to its
logical end provided the procedure so adopted is transparent,
non-discriminatory/non-arbitrary and has a rational nexus to the
object sought to be achieved. [Para 42(4)]
30 [2024] 12 S.C.R.

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Service Law – Recruitment – Whether the procedure prescribed
in the Extant Rule can be violated:
Held: Procedure prescribed in the Extant Rule cannot be violated –
Extant Rules having statutory force are binding on the recruiting
body both in terms of procedure and eligibility – Where there are
no Rules or the Rules are silent on the subject, administrative
instructions may be issued to supplement and fill in the gaps in the
Rules – In that event administrative instructions would govern the
field provided they are not ultra vires the provisions of the Rules or
the Statute or the Constitution – But where the Rules expressly or
impliedly cover the field, the recruiting body would have to abide
by the Rules. [Paras 39, 42(5)]

Service Law – Name in select list – Right to appointment –
Whether appointment could be denied even after placement
in select list:
Held: Appointment may be denied even after placement in select
list – A candidate placed in the select list gets no indefeasible
right to be appointed even if vacancies are available – But there
is a caveat – The State or its instrumentality cannot arbitrarily
deny appointment to a selected candidate – Therefore, when a
challenge is laid to State’s action in respect of denying appointment
to a selected candidate, the burden is on the State to justify its
decision for not making appointment from the Select List. [Para 40]

Service Law – Recruitment – Legitimate Expectation –
Discretion of Public Authority – Public Interest:
Held: Candidates participating in a recruitment process have
legitimate expectation that the process of selection will be fair
and non-arbitrary – The basis of doctrine of legitimate expectation
in public law is founded on the principles of fairness and non-
arbitrariness in government dealings with individuals – However,
the doctrine of legitimate expectation does not impede or hinder the
power of the public authorities to lay down a policy or withdraw it –
The public authority has the discretion to exercise the full range of
choices available within its executive power – The public authority
often has to take into consideration diverse factors, concerns, and
interests before arriving at a particular policy decision – The courts
are generally cautious in interfering with a bona fide decision of
public authorities which denies legitimate expectation provided
such a decision is taken in the larger public interest – Thus, public
[2024] 12 S.C.R. 31

Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.

interest serves as a limitation on the application of the doctrine
of legitimate expectation – Courts have to determine whether the
public interest is compelling and sufficient to outweigh the legitimate
expectation of the claimant. [Para 16]

Case Law Cited
K. Manjusree v. State of A.P. [2008] 2 SCR 1025 : (2008) 3 SCC
512 – held good law.
Sivanandan CT & Ors. v. High Court of Kerala & Ors. [2023] 11
SCR 674 : 2023 INSC 709 – followed.
Ramesh Kumar v. High Court of Delhi [2010] 2 SCR 256 : (2010) 3
SCC 104; K. H. Siraj v. High Court of Kerala & Ors. [2006] Supp.
2 SCR 790 : (2006) 6 SCC 395; M.P. Public Service Commission
v. Navnit Kumar Potdar [1994] Supp. 3 SCR 665 : (1994) 6 SCC
293; Union of India v. T. Sundararaman [1997] 3 SCR 792 :
(1997) 4 SCC 664; Tridip Kumar Dingal v. State of W.B. [2008]
15 SCR 194 : (2009) 1 SCC 768; Salam Samarjeet Singh v. The
High Court of Manipur at Imphal & Anr. [2024] 8 SCR 885 : 2024
INSC 647 – relied on.
State of Haryana v. Subash Chander Marwaha [1974] 1 SCR 165 :
(1974) 3 SCC 220; Tej Prakash Pathak & Others v. Rajasthan
High Court and Others (2013) 4 SCC 540; Shankar K. Mandal
v. State of Bihar [2003] 3 SCR 796 : (2003) 9 SCC 519; Mohd.
Sohrab Khan v. Aligarh Muslim University and Others [2009] 2
SCR 907 : (2009) 4 SCC 555; A.P. Public Service Commission v.
B. Sarat Chandra [1990] 2 SCR 463 : (1990) 2 SCC 669; Rakhi
Ray v. High Court of Delhi [2010] 2 SCR 239 : (2010) 2 SCC 637;
E.P. Royappa v. State of T.N. [1974] 2 SCR 348 : (1974) 4 SCC 3;
State of Jharkhand v. Brahmputra Metallics Ltd. [2020] 14 SCR 45 :
(2023) 10 SCC 634; Shankarsan Dash v. Union of India [1991] 2 SCR
567 : (1991) 3 SCC 47; All India SC & ST Employees Association v.
A. Arthur Jeen & Others [2001] 2 SCR 1183 : (2001) 6 SCC 380; M.
Ramesh v. Union of India [2018] 6 SCR 763 : (2018) 16 SCC 195;
P.K. Ramachandra Iyer v. Union of India [1984] 2 SCR 200 : (1984)
2 SCC 141; Hemani Malhotra v. High Court of Delhi [2008] 5 SCR
1066 : (2008) 7 SCC 11; Ashok Kumar Yadav v. State of Haryana
[1985] Supp. 1 SCR 657 : (1985) 4 SCC 417; Lila Dhar v. State
of Rajasthan and Others [1982] 1 SCR 320 : (1981) 4 SCC 159;
Santosh Kumar Tripathi v. U.P. Power Corporation (2009) 14 SCC
210; Banking Service Recruitment Board, Madras v. V. Ramalingam
(1998) 8 SCC 523 – referred to.
32 [2024] 12 S.C.R.

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Books and Periodicals Cited
United Nations Handbook of Civil Service Laws and Practices.

List of Acts
Constitution of India; Rajasthan High Court Staff Service Rules
2002; Kerala Judicial Service Rules, 1991.

List of Keywords
Service Law; Recruitment; Appointment; ‘Rules of the game’;
Recruiting bodies; Appropriate procedure; Recruiting process; Name
in select list; Right to appointment; Procedure prescribed in the
Extant Rule; Recruiting process; Article 14 of the Constitution; Article
16 of the Constitution; Article 309 of the Constitution; Transparent;
Non-discriminatory; Non-arbitrary; Eligibility criteria; Select List;
Extant Rule; Principle of fairness; Legitimate expectation; Rule
against arbitrariness.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2634 of 2013
From the Judgment and Order dated 11.03.2011 of the High Court
of Rajasthan at Jodhpur in DBCWP No. 2174 of 2010
With
Civil Appeal Nos. 2635 And 2636 of 2013

Appearances for Parties
Dr. Ritu Bhardwaj, Mohan Kumar, Anurag Katarki, Amit Kumar,
Ms. Neetu Singh, Ms. Asia Beg, Mrs. Haripriya Padmanabhan,
Kuriakose Varghese, V. Shyamohan, Shrutanjaya Bhardwaj, Ms.
Aishwarya Hariharan, Vishal Sinha, Akshat Gogna, Ms. Isha Ghai
(for M/s. Kmnp Law), Raghenth Basant, Ms. Liz Mathew, Ms.
Aakashi Lodha, Ms. Mallika Agarwal, P. V. Dinesh, Ms. Oommen
Anna A, Ms. Urvashi Chauhan, Chetan Garg, Ranjit Kumar, Ajay
Vikram Singh, Advs. for the Appellants.
K.M. Nataraj, ASG, Vijay Hansaria, Sr. Adv., Pawanshree Agrawal,
Sunil Kumar Jain, Ms. Rashika Swarup, Ms. Tanya Agarwal,
Anil Kumar, Maibam Nabaghanashyam Singh, Mahesh Thakur,
Shakti K Pattanaik, Advs. for the Respondents.
[2024] 12 S.C.R. 33

Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.

Judgment / Order of the Supreme Court
Judgment
Manoj Misra, J.
The ideal in recruitment is to do away with unfairness1

REFERENCE
1. A three-Judge Bench of this Court while accepting the salutary
principle that once the recruitment process commences the State or
its instrumentality cannot tinker with the “rules of the game” insofar
as the prescription of eligibility criteria is concerned, wondered
whether that should apply also to the procedure for selection. In that
context, doubting the correctness of a coordinate Bench decision in
K. Manjusree2 for not having noticed an earlier decision in Subash
Chander Marwaha,3 vide order4 dated 20 March 2013, it was directed
that the matter be placed before the Chief Justice for constituting
a larger Bench for an authoritative pronouncement on the subject.

THE FACTUAL CONTEXT FOR THE REFERENCE
2. The relevant facts giving rise to the reference are as follows:
(a) The Rajasthan High Court5 vide notification dated 17 September
2009 invited applications from amongst Judicial Assistants and
Junior Judicial Assistants, having an experience of three years
in the establishment of the High Court and possessing degree
of M. A. in English Literature, for appointment on 13 posts of
Translators. Preference was to be accorded to law graduates.
(b) At the relevant time, ‘The Rajasthan High Court Staff Service
Rules 2002’6 framed by the Chief Justice of the High Court
under Article 229 (2) of the Constitution of India7 governed the
appointments.

1 UNITED NATIONS HANDBOOK OF CIVIL SERVICE LAWS AND PRACTICES.
2 K. Manjusree v. State of A.P. (2008) 3 SCC 512
3 State of Haryana v. Subash Chander Marwaha (1974) 3 SCC 220
4 Tej Prakash Pathak & Others v. Rajasthan High Court and Others (2013) 4 SCC 540
5 The High Court.
6 2002 Rules.
7 Constitution.
34 [2024] 12 S.C.R.

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(c) Under the 2002 Rules, the Chief Justice of the High Court vide
Office Order dated 5 December 2002, inter alia, specified the
qualifications as well as the method of recruitment for the post
of ‘Translator’ (Ordinary Scale) in the following terms:
“TRANSLATORS (ORDINARY SCALE)
Recruitment to the post of Translators (Ordinary
Scale) shall be made on the recommendation of a
Committee nominated by the Appointing Authority on
the criteria of selection from amongst the graduate
Upper Division Clerks or officials in equivalent or
above grade but below the grade of Translators
(Ordinary Scale), with Hindi or English Literature as
one of the optional subject in Graduation or Lower
Division Clerks with Hindi or English Literature as
subject in post-graduation and having minimum
experience of five years.
COMPETITIVE EXAMINATION
A qualifying examination shall be held to test the
ability of the candidates of translation from English
to Hindi and Hindi to English.
Paper-I English to Hindi translation 100 marks
Paper-II Hindi to English translation 100 marks
Explanation: For the qualifying examination the
officials appearing therein shall be given passages
for translation from English to Hindi and Hindi to
English from the judgment and records.
Personal Interview:
There shall be a personal interview
of the candidate. 50 marks
Note: A candidate who secures in aggregate
75% marks and minimum 60% marks in each paper
shall only be called for interview.”
(d) Later, vide Office Order dated 24 July 2004, amendments were
made in the Office Order dated 5 December 2002 thereby
substituting the provision relating to recruitment of Translators
(Ordinary Scale) by the following:
[2024] 12 S.C.R. 35

Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.

“TRANSLATORS
Recruitment shall be made from amongst the
judicial assistants or junior judicial assistants having
experience of 3 years by holding a test in English and
Hindi translation. Candidates shall be given passages
in English from the judgments and records and shall
be asked to translate them into Hindi. Similarly
passages in Hindi from the records or from some
other books etc. shall be given and the candidates
shall be asked to translate them into English.
Minimum qualification shall be Graduate
Preference shall be given to a Law Graduate”
(e) Thereafter, on 8 September 2009, the Office Order dated 5
December 2002 was further amended to substitute the specified
minimum qualification with the following:
“Minimum qualification shall be Post Graduate in
English Literature from any recognized University
established by law in India”
(f) On 19 December 2009 examination was held. Twenty-one
aspirants appeared in the examination. Result was declared
on 20 February 2010, wherein only 3 candidates were declared
successful. This was so, because the Chief Justice of the
High Court ordered that only those candidates who secured a
minimum of 75% marks will be selected to fill up the posts in
question. As only three candidates could secure a minimum
of 75% marks, the list of successful candidates comprised of
only three candidates.
(g) Some of the unsuccessful candidates filed writ petition before
the High Court questioning the decision of the Chief Justice of
the High Court in fixing the cut off at 75% on the ground that it
amounted to “changing the rules of the game after the game
is played”. The High Court on its administrative side defended
the decision of the Chief Justice by claiming it to have been
taken in good faith for appointing a suitable candidate.
(h) The writ petition came to be dismissed by the High Court vide
judgment under appeal dated 11 March 2011. The High Court
36 [2024] 12 S.C.R.

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took the view that on mere placement in the select list no
indefeasible right accrues to a candidate for appointment. The
employer may fix a higher benchmark to ensure that a person
suitable to the post is appointed.
(i) On a special leave petition challenging the judgment of the High
Court, while granting leave, vide order dated 20 March 2013,
the matter was referred for an authoritative pronouncement by
a larger Bench of this Court.

RELEVANT EXTRACTS FROM THE REFERENCE ORDER
3. To have a clear understanding of the scope of the reference, the
relevant paragraphs of the reference order are extracted below:
“5. Admittedly, the requirement of securing the minimum
qualifying marks of 75% is not a stipulation of the Service
Rules (referred to earlier) of the first respondent High
Court as on the date of initiation of the recruitment
process in question (i.e. 17-9-2009). It appears that such
a prescription had existed earlier under the Rules, but by
an amendment, the said prescription was dropped with
effect from 14-7-2004.
6. Therefore, the appellants challenged the selection
process on the ground that the decision of the Chief
Justice to select only those candidates who secured
a minimum of 75% marks would amount to “changing
the rules of the game after the game is played”—a
cliché whose true purport is required to be examined
notwithstanding the declaration of this Court in Manjusree
case [K. Manjusree v. State of A.P. (2008) 3 SCC 512
at p. 524, para 27 : (2008) 1 SCC (L&S) 841] that it is
“clearly impermissible”.
7. The question whether the “rules of the game” could be
changed was considered by this Court on a number of
occasions in different circumstances. Such question arose
in the context of employment under the State which under
the scheme of our Constitution is required to be regulated
by “law” made under Article 309 or employment under the
[2024] 12 S.C.R. 37

Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.

instrumentalities of the State which could be regulated
either by statute or subordinate legislation. In either case
the “law” dealing with the recruitment is subject to the
discipline of Article 14.
8. The legal relationship between employer and employee
is essentially contractual. Though in the context of
employment under the State the contract of employment is
generally regulated by statutory provisions or subordinate
legislation which restricts the freedom of the employer i.e.
the “State” in certain respects.
9. In the context of the employment covered by the regime
of Article 309, the “law”—the recruitment rules in theory
could be either prospective or retrospective subject of
course to the rule of non-arbitrariness. However, in the
context of employment under the instrumentalities of
the State which is normally regulated by subordinate
legislation, such rules cannot be made retrospectively
unless specifically authorised by some constitutionally
valid statute.
10. Under the scheme of our Constitution an absolute
and non-negotiable prohibition against retrospective
law-making is made only with reference to the creation of
crimes. Any other legal right or obligation could be created,
altered, extinguished retrospectively by the sovereign
law-making bodies. However, such drastic power is
required to be exercised in a manner that it does not
conflict with any other constitutionally guaranteed rights,
such as, Articles 14 and 16, etc. Changing the “rules of
game” either midstream or after the game is played is an
aspect of retrospective law-making power.
11. Those various cases [ (a) C. Channabasavaih v.
State of Mysore, AIR 1965 SC 1293; State of Haryana
v. Subash Chander Marwaha (1974) 3 SCC 220 : 1973
SCC (L&S) 488; P.K. Ramachandra Iyer v. Union of
India (1984) 2 SCC 141 : 1984 SCC (L&S) 214; Umesh
Chandra Shukla v. Union of India (1985) 3 SCC 721 : 1985
38 [2024] 12 S.C.R.

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SCC (L&S) 919; Durgacharan Misra v. State of Orissa
(1987) 4 SCC 646 : 1988 SCC (L&S) 36 : (1987) 5 ATC
148; State of U.P. v. Rafiquddin, 1987 Supp SCC 401 :
1988 SCC (L&S) 183 : (1987) 5 ATC 257; Maharashtra
SRTC v. Rajendra Bhimrao Mandve (2001) 10 SCC 51 :
2002 SCC (L&S) 720; Pitta Naveen Kumar v. Narasaiah
Zangiti (2006) 10 SCC 261 : (2007) 1 SCC (L&S) 92;
K. Manjusree v. State of A.P. (2008) 3 SCC 512 : (2008) 1
SCC (L&S) 841; Hemani Malhotra v. High Court of Delhi
(2008) 7 SCC 11 : (2008) 2 SCC (L&S) 203; K.H. Siraj
v. High Court of Kerala (2006) 6 SCC 395 : 2006 SCC
(L&S) 1345; Ramesh Kumar v. High Court of Delhi (2010)
3 SCC 104 : (2010) 1 SCC (L&S) 756; Rakhi Ray v. High
Court of Delhi (2010) 2 SCC 637 : (2010) 1 SCC (L&S)
652; Hardev Singh v. Union of India (2011) 10 SCC 121 :
(2012) 1 SCC (L&S) 390 — Where procedural rules were
altered.(b) P. Mahendran v. State of Karnataka (1990) 1
SCC 411 : 1990 SCC (L&S) 163 : (1990) 12 ATC 727;
M.P. Public Service Commission v. Navnit Kumar Potdar
(1994) 6 SCC 293 : 1994 SCC (L&S) 1377 : (1994) 28
ATC 286; Gopal Krushna Rath v. M.A.A. Baig (1999) 1
SCC 544 : 1999 SCC (L&S) 325; Umrao Singh v. Punjabi
University (2005) 13 SCC 365 : 2006 SCC (L&S) 1071;
Mohd. Sohrab Khan v. Aligarh Muslim University (2009)
4 SCC 555 : (2009) 1 SCC (L&S) 917 — Where the
eligibility criteria were altered.] deal with situations where
the State sought to alter (1) the eligibility criteria of the
candidates seeking employment, or (2) the method and
manner of making the selection of the suitable candidates.
The latter could be termed as the procedure adopted for
the selection, such as, prescribing minimum cut-off marks
to be secured by the candidates either in the written
examination or viva voce as was done in Manjusree
[K. Manjusree v. State of A.P. (2008) 3 SCC 512 at
p. 524, para 27 : (2008) 1 SCC (L&S) 841] or the present
case or calling upon the candidates to undergo some
test relevant to the nature of the employment (such as
driving test as was in Maharashtra SRTC [Maharashtra
[2024] 12 S.C.R. 39

Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.

SRTC v. Rajendra Bhimrao Mandve (2001) 10 SCC 51 at
pp. 55-56, para 5 : 2002 SCC (L&S) 720] ).
12. If the principle of Manjusree case [K. Manjusree
v. State of A.P. (2008) 3 SCC 512 at p. 524, para 27 :
(2008) 1 SCC (L&S) 841] is applied strictly to the present
case, the respondent High Court is bound to recruit 13
of the “best” candidates out of the 21 who applied
irrespective of their performance in the examination held.
In such cases, theoretically it is possible that candidates
securing very low marks but higher than some other
competing candidates may have to be appointed. In
our opinion, application of the principle as laid down in
Manjusree case [K. Manjusree v. State of A.P. (2008) 3
SCC 512 at p. 524, para 27 : (2008) 1 SCC (L&S) 841]
without any further scrutiny would not be in the larger
public interest or the goal of establishing an efficient
administrative machinery.
13. This Court in State of Haryana v. Subash Chander
Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488]
while dealing with the recruitment of Subordinate Judges
of the Punjab Civil Services (Judicial Branch) had to
deal with the situation where the relevant rule prescribed
minimum qualifying marks. The recruitment was for
filling up of 15 vacancies. 40 candidates secured the
minimum qualifying marks (45%). Only 7 candidates who
secured 55% and above marks were appointed and the
remaining vacancies were kept unfilled. The decision
of the State Government not to fill up the remaining
vacancies in spite of the availability of candidates who
secured the minimum qualifying marks was challenged.
The State Government defended its decision not to fill
up posts on the ground that the decision was taken to
maintain the high standards of competence in judicial
service. The High Court upheld the challenge and issued
a mandamus. In appeal, this Court reversed and opined
that the candidates securing minimum qualifying marks at
an examination held for the purpose of recruitment into the
service of the State have no legal right to be appointed.
In the context, it was held: (Subash Chander Marwaha
40 [2024] 12 S.C.R.

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case [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] , SCC
p. 227, para 12)
“12. … In a case where appointments are
made by selection from a number of eligible
candidates it is open to the Government with a
view to maintain high standards of competence
to fix a score which is much higher than the one
required for more (sic mere) eligibility.”
14. Unfortunately, the decision in Subash Chander
Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488]
does not appear to have been brought to the notice of
Their Lordships in Manjusree [K. Manjusree v. State of
A.P. (2008) 3 SCC 512 at p. 524, para 27 : (2008) 1 SCC
(L&S) 841]. This Court in Manjusree [K. Manjusree v. State
of A.P. (2008) 3 SCC 512 at p. 524, para 27 : (2008) 1
SCC (L&S) 841] relied upon P.K. Ramachandra Iyer v.
Union of India [(1984) 2 SCC 141 : 1984 SCC (L&S)
214], Umesh Chandra Shukla v. Union of India [(1985) 3
SCC 721 : 1985 SCC (L&S) 919] and Durgacharan Misra v.
State of Orissa [(1987) 4 SCC 646 : 1988 SCC (L&S) 36].
In none of the cases, was the decision in Subash Chander
Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488]
considered.
15. No doubt it is 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 as was done in C. Channabasavaih v. State
of Mysore [AIR 1965 SC 1293], etc. in order to avoid
manipulation of the recruitment process and its results.
Whether such a principle should be applied in the context
of the “rules of the game” stipulating the procedure for
selection more particularly when the change sought is
to impose a more rigorous scrutiny for selection requires
an authoritative pronouncement of a larger Bench of this
Court. We, therefore, order that the matter be placed
before the Hon’ble Chief Justice of India for appropriate
orders in this regard.”
(Emphasis supplied)
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SCOPE OF THE REFERENCE
4. Public services broadly fall in two categories. One, where services
are in connection with the affairs of the State/ Union. Second, where
services are under the instrumentalities of the State. In either category,
law governing recruitment must conform to the overarching principles
enshrined in Articles 14 and 16 of the Constitution.
5. In various judicial pronouncements, the law governing recruitment
to public services has been colloquially termed as ‘the rules of the
game’. The ‘game’ is the process of selection and appointment.
Courts have consistently frowned upon tinkering with the rules
of the game once the recruitment process commences. This has
crystallised into an oft-quoted legal phrase that “the rules of the
game must not be changed mid-way, or after the game has been
played”. Broadly-speaking these rules fall in two categories. One
which prescribes the eligibility criteria (i.e., essential qualifications) of
the candidates seeking employment; and the other which stipulates
the method and manner of making the selection from amongst the
eligible candidates.
6. Cut-off date with reference to which eligibility has to be determined
is the date appointed by the relevant service rules; where no such
cut-off date is provided in the rules, then it will be the date appointed
in the advertisement inviting applications; and if there is no such date
appointed, then eligibility criteria shall be applied by reference to the
last date appointed by which the applications were to be received.8
7. The law is settled that after commencement of the recruitment
process the eligibility criteria is not to be altered because candidates
even if eligible under the altered criteria might not apply by the
last date under the belief that they are not eligible as per the
advertised criteria.9 Such alteration/ change, therefore, deprives a
person of the guarantee of equal opportunity in matters of public
employment provided by Article 16 of the Constitution. The reference
order therefore acknowledges this legal position and in clear terms
accepts that ‘the rules of the game’ cannot be changed after
commencement of the recruitment process insofar as the eligibility
criteria is concerned.

8 Shankar K. Mandal v. State of Bihar (2003) 9 SCC 519
9 Mohd. Sohrab Khan v. Aligarh Muslim University and others (2009) 4 SCC 555
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8. However, in regard to changing the rules of the game qua method
or procedure for selection, the three-Judge Bench in the reference
order doubted the correctness of the decision in K. Manjusree (supra)
inter alia on the ground that it failed to notice an earlier decision
in Subash Chander Marwaha (supra). Accordingly, the reference
order seeks an authoritative pronouncement in that regard from a
larger Bench of this Court. The scope of the reference is therefore
limited to (a) whether K. Manjusree (supra) lays down the correct
law; and (b) whether the rules of the game qua method and manner
of making selection can be changed or altered after commencement
of the recruitment process.

SUBMISSIONS
9. We have heard a battery of counsels both in support as well as
against the strict applicability of the doctrine. During their arguments,
they have either questioned or supported the decision of the High
Court. For an effective analysis of their submissions and to properly
adjudicate upon the issues which would arise while addressing the
reference, we deem it appropriate to segregate their submissions
into two parts. One which propounds that after commencement of
the recruitment process, the stipulated procedure (i.e., rules of the
game) for selection cannot be changed mid-way, or after the game
is played, and the other which propounds that it is permissible to
change / alter the stipulated procedure or method for selection to
ensure that the most meritorious person, who is suitable for the post,
gets appointed.

SUBMISSIONS AGAINST CHANGE
10. Submissions propounding that ‘rules of the game’ qua the procedure
for selection must not be changed in the midst of the game, or after
the game is played, are summarised below:
(a) Equality of opportunity in matters of public employment and
fairness in State action are guaranteed by Articles 16 and 14,
respectively, of the Constitution which proscribe a change in
the rules of the game qua selection criteria, once the game has
begun. These rights would be infringed if candidates, otherwise
eligible, are excluded from the zone of consideration based on
a post facto change in the selection criteria.
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(b) Candidates have a right to know, before the selection process
commences, the standards/ criteria on which they will be
assessed/ evaluated so that they could modulate their level of
preparedness accordingly.
(c) A change in the advertised cut off marks for eligibility to be
placed in the select list, after the game is played, may seriously
prejudice a candidate on two counts. First, the candidate may not
put in effort more than required for achieving the advertised cut
off marks. Second, the interviewer or evaluator may unknowingly
place the candidate in a non-eligible category while imagining
that he has been placed in an eligible category. Thus a change
in the eligibility cut off, after evaluation is done, denies the
evaluator an opportunity to modulate the marks for placing
the candidate in a category to which he/she, in the view of the
evaluator, is entitled to be placed.
(d) If eligibility cut-off marks is to be prescribed, it should be done
before the test or the interview so that both the examinee and
the examiner are aware as to how many marks would qualify
a candidate for further consideration.
(e) Recruitment to public services must not only be fair but must
appear to be so. A change in the selection criteria mid-way
would create an impression that the State is not acting fairly
and the change is to favour certain individuals. It thus violates
transparency in decision making process, which is fundamental
to rule out arbitrariness, and fosters nepotism.
(f) Discretion is antithesis to the Rule of law which is the hallmark
of our Constitution. Rule of law suffers when rules of the game
are left to be altered at the discretion of the employer.
(g) K. Manjusree (supra) is not in conflict with Subash Chander
Marwaha (supra). Subash Chander Marwaha proceeds on
the principle that existence of vacancies does not confer a
right to a candidate placed in the select list to be appointed.
K. Manjusree on the other hand deals with a situation where
a candidate is denied placement in the select list only because
after the interviews were over, minimum marks for the interviews,
not prescribed earlier, were prescribed. The two decisions,
therefore, operate in different fields.
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SUBMISSIONS PROPOUNDING CHANGE IS PERMISSIBLE
11. Submissions propounding that change in the selection procedure or
criteria is permissible even in the midst of the recruitment process
are summarised below:
(a) In absence of service rules, or the advertisement, prescribing
or proscribing a cut off, employer has discretion to fix cut-off as
may be considered necessary to appoint a candidate suitable
to the post.
(b) Even if no cut-off is stipulated for eligibility qua placement in
the merit list, the employer may choose to appoint only such
of those from the merit list who are higher than a particular
cut-off and such cut-off may be fixed later. This is so, because
no selected candidate has an indefeasible right to be appointed.
(c) Considering the nature of the post, cut-off even if not prescribed
by the Rules or the advertisement can be prescribed to appoint
a person suitable to the post. Fixation of such cut-off would not
be deemed arbitrary, as efficiency in service is the paramount
consideration for the employer.
(d) A change in the selection criteria which does not bear on the
merit list but only affects appointment based thereupon, would
not fall foul of either Article 16 or Article 14 of the Constitution
if such a change is in the larger interest of efficiency in the
service.

ANALYSIS
12. To effectively analyse and adjudicate upon the questions referred,
we would divide our discussion into following parts:
(a) When the recruitment process commences and comes to an end;
(b) Basis of the doctrine that ‘rules of the game’ must not be changed
during the course of the game, or after the game is played;
(c) Whether the decision in K. Manjusree (supra) is at variance
with earlier precedents on the subject;
(d) Whether the above doctrine applies with equal strictness qua
method or procedure for selection as it does qua eligibility
criteria;
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(e) Whether procedure for selection stipulated by Act or Rules
framed either under the proviso to Article 30910 of the Constitution
or a Statute could be given a go-bye;
(f) Whether appointment could be denied by change in the eligibility
criteria after the game is played.

(A) COMMENCEMENT/END OF THE RECRUITMENT PROCESS
13. The process of recruitment begins with the issuance of advertisement
and ends with the filling up of notified vacancies. It consists of various
steps like inviting applications, scrutiny of applications, rejection
of defective applications or elimination of ineligible candidates,
conducting examinations, calling for interview or viva voce and
preparation of list of successful candidates for appointment.11

(B) BASIS OF THE DOCTRINE
14. The doctrine proscribing change of rules midway through the game, or
after the game is played, is predicated on the rule against arbitrariness
enshrined in Article 1412 of the Constitution. Article 1613 is only an

10 Article 309. Recruitment and conditions of service of persons serving the Union or a State.—
Subject to the provisions of this Constitution, Acts of the appropriate legislature may regulate the
recruitment, and conditions of service of persons appointed, to public services and posts in connection
with the affairs of the Union or of any State.
Provided that it shall be competent for the President or such person as he may direct in the case of
services and posts in connection with the affairs of the Union, and for the governor of a State or such
person as he may direct in the case of services and posts in connection with the affairs of the State,
to make rules regulating the recruitment, and the conditions of service of persons appointed, to such
services and posts until provision in that behalf is made by or under an Act of the appropriate legislature
under this article, and any rules so made shall have effect subject to the provisions of any such Act.
11 A.P. Public Service Commission v. B. Sarat Chandra (1990) 2 SCC 669; and Rakhi Ray v. High Court of
Delhi (2010) 2 SCC 637
12 Article 14. Equality before law. - The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.
13 Article 16. Equality of opportunity in matters of public employment. - (1) There shall be equality of
opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any
of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class
or classes of employment or appointment to an office under the Government of, or any local or other
authority within, or State or Union territory, any requirement as to residents within that State or Union
territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of
appointments or posts in favor of any backward class of citizens which, in the opinion of the state, is not
adequately represented in the services under the State.
(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of
promotion, with consequential seniority, to any class or classes of posts in the services under the State
in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.
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instance of the application of the concept of equality enshrined in
Article 14. In other words Article 14 is the genus while Article 16 is a
species. Article 16 gives effect to the concept of equality in all matters
relating to public employment. These two articles strike at arbitrariness
in State action and ensure fairness and equality of treatment. They
require that State action must be based on valid relevant principles
alike to all similarly situate and not to be guided by any extraneous
or irrelevant considerations.14 In all its actions, the State is bound to
act fairly, in a transparent manner. This is an elementary requirement
of the guarantee against arbitrary State action which Article 14 of
the Constitution adopts. A deprivation of the entitlement of private
citizens and private business must be proportional to a requirement
grounded in public interest.15
15. The principle of fairness in action requires that public authorities
be held accountable for their representations. Good administration
requires public authorities to act in a predictable manner and honour
the promises made or practices established unless there is good
reason not to do so.16
16. Candidates participating in a recruitment process have legitimate
expectation that the process of selection will be fair and non-arbitrary.
The basis of doctrine of legitimate expectation in public law is founded
on the principles of fairness and non-arbitrariness in government
dealings with individuals. It recognises that a public authority’s
promise or past conduct will give rise to a legitimate expectation.
This doctrine is premised on the notion that public authorities, while

(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year
which are reserved for being filled up in that year in accordance with any provision for reservation made
under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding
year or years and such class of vacancies shall not be considered together with the vacancies of the
year in which they are being filled up for determining the sealing of 50% reservation on total number of
vacancies of that year.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an
office in connection with the affairs of any religious or denominational institution or any member of the
governing body thereof shall be a person professing a particular religion or belonging to a particular
denomination.
(6) Nothing in this article shall prevent the State from making any provision for the reservation of
appointments or posts in favor of any economically weaker sections of citizens other than the classes
mentioned in clause (4) in addition to the existing reservation and subject to a maximum of 10% of the
posts in each category.
14 E. P. Royappa v. State of T.N. (1974) 4 SCC 3
15 State of Jharkhand v. Brahmputra Metallics Ltd. (2023) 10 SCC 634
16 Sivanandan CT & Ors. v. High Court of Kerala & Ors., 2023 INSC 709
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performing their public duties, ought to honour their promises or
past practices. The legitimacy of an expectation can be inferred if it
is rooted in law, custom, or established procedure.17 However, the
doctrine of legitimate expectation does not impede or hinder the
power of the public authorities to lay down a policy or withdraw it.
The public authority has the discretion to exercise the full range of
choices available within its executive power. The public authority
often has to take into consideration diverse factors, concerns, and
interests before arriving at a particular policy decision. The courts
are generally cautious in interfering with a bona fide decision of
public authorities which denies legitimate expectation provided such
a decision is taken in the larger public interest. Thus, public interest
serves as a limitation on the application of the doctrine of legitimate
expectation. Courts have to determine whether the public interest
is compelling and sufficient to outweigh the legitimate expectation
of the claimant. While performing a balancing exercise, courts have
to often grapple with the issues of burden and standard of proof
required to dislodge the claim of legitimate expectation.18
17. In Sivanandan CT,19 the Constitution Bench, speaking through one
of us (Dr. D.Y. Chandrachud, CJ), held that for a public authority
to frustrate a claim of legitimate expectation, it must objectively
demonstrate by placing relevant material before the court that its
decision was in the public interest. This standard is consistent with
the principles of good administration which require that State actions
must be held to scrupulous standards to prevent misuse of public
power and ensure fairness to citizens. It was also highlighted that the
doctrine of legitimate expectation lays emphasis on predictability and
consistency in decision-making which is a facet of non-arbitrariness.
In addition, the Court observed:
"43. The underlying basis for the application of the doctrine
of legitimate expectation has expanded and evolved to
include the principles of good administration. ………. The
principles of good administration require that the decisions
of public authorities must withstand the test of consistency,

17 Sivanandan CT (supra), paragraph 18.
18 Sivanandan CT (supra), paragraph 37.
19 See Footnote 13, paragraph 38.
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transparency, and predictability to avoid being regarded
as arbitrary and therefore violative of Article 14.”

(C) K. MANJUSREE IS NOT AT VARIANCE WITH EARLIER
PRECEDENTS
18. In K. Manjusree (supra) the recruitment exercise was for selection and
appointments to the posts of District & Sessions Judges (Grade II).
The extant rules prescribed the eligibility qualifications but were
silent on the procedure for selection. The manner and method of
selection was therefore to be decided by the High Court for every
selection as and when the vacancies were notified for selection.
The vacancies were notified by the State Government. As per the
advertisement for selection a written examination followed by an
interview were to be held. By a resolution dated 30.11.2004, the
Administrative Committee of the High Court resolved to conduct
written examination for 75 marks and interview for 25 marks. It was
also resolved that the minimum qualifying marks for the OC,20 BC,21
SC22 and ST23 candidates shall be as prescribed earlier. Following the
High Court’s direction, written examination was held on 30.1.2005,
and its results were declared on 24.2.2005 wherein 83 candidates
were successful. Interviews were held in March 2006. Thereafter,
the marks obtained by those 83 candidates were aggregated and
a consolidated merit list was prepared in the order of merit on the
basis of the aggregate marks. The merit list inter alia contained
marks secured in the written examinations out of 100; marks
secured in the interview out of 25; and the total marks secured in the
written examination and interview out of 125. Based on that list, the
Administrative Committee approved the selection of ten candidates as
per merit and reservation. However, the Full Court did not agree with
the select list prepared. Consequently, the Chief Justice constituted
a Committee of Judges for preparing a fresh list. The Committee
recommended that in place of 100 marks for the written examination
and 25 marks for the interview, the candidates should be evaluated
with reference to 75 marks for the written examination and 25 marks

20 Open Category or Unreserved Category.
21 Backward Class Category.
22 Scheduled Caste Category.
23 Scheduled Tribe Category.
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for the interview in line with earlier resolution dated 30.11.2004. The
Committee also recommended that the minimum pass percentage
applied for the written examination to determine the eligibility of the
candidates for appearance in the interview should also be applied
for interview marks, and those who failed to secure such minimum
marks in the interview should be considered as having failed. Based
on the recommendation of the Committee, the minimum percentage
for passing the written examination (i.e., 50% for OC, 40% for BC,
and 35% for SC and ST) was applied for interview and, therefore,
only those candidates who secured the minimum of 12.5 marks in
OC, 10 marks in BC and 8.7 marks in SC and ST were considered
as having succeeded in the interview. As a result, only 31 candidates
were found to have qualified both in the written examination and
interview. In consequence, a revised merit list of only 31 successful
candidates was prepared wherein few candidates, earlier selected,
were ousted and few others who did not find place in the earlier
select list gained entry. However, out of those 31 candidates only 9
were recommended for appointment.
19. In that factual context, two candidates whose names found mention
in the first list, and who got excluded in the second list, filed writ
petitions by claiming that High Court’s decision to prepare selection
list by prescribing minimum qualifying marks for the interview was
arbitrary and illegal. They thus sought a direction to the High Court
to redraw the select list without adopting minimum qualifying marks
for the interview. The writ petitions were dismissed by the High
Court. Being aggrieved, the writ petitioners preferred SLPs24 before
this Court. This Court while granting leave and allowing the appeal
of the writ petitioners held that the High Court, though was correct
in scaling down marks of written examination from 100 to 75, was
not legally justified in directing that only those candidates would be
placed in the merit list who obtained such minimum marks in the
interview as was specified by the Committee. Key observations of
this Court in K. Manjusree (supra) are being extracted below:
"22. … the interview Committee conducted the interviews
on 13.3.2006 … on the understanding that there were no
minimum marks for interviews, that the marks awarded

24 Special Leave Petitions.
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by them would not by itself have the effect of excluding
or ousting any candidate from being selected, and that
marks awarded by them in the interviews will merely be
added to the written examination marks, for preparation
of the merit list and selection list. We are referring to this
aspect, as the matter of conducting interviews and awarding
marks in interviews, by five members of the interviewing
committee would have been markedly different if they had
to proceed on the basis that there were minimum marks
to be secured in the interview for being considered for
selection and that the marks are awarded by them would
have the effect of barring or ousting any candidate from
being considered for selection. Thus, the entire process
of selection – from the stage of holding the examination,
holding interviews and finalising the list of candidates to be
selected – was done by the Selection Committee on the
basis that there was no minimum marks for the interview.
To put it differently the game was played under the rule
that there was no minimum marks for the interview.
27. …Therefore, 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.
33. …We may clarify that prescription of minimum marks
for any interview is not illegal. We have no doubt that
the authority making rules regulating the selection, can
prescribe by rules, the minimum marks both for written
examination and interviews, or prescribe minimum marks
for written examination but not for interview, or may not
prescribe any minimum marks for either written examination
or interview. Where the rules do not prescribe any procedure,
the Selection Committee may also prescribe the minimum
marks, as stated above. But if the Selection Committee
wants to prescribe minimum marks for interview, it should
do so before the commencement of selection process. If
the Selection committee prescribe minimum marks only
for the written examination, before the commencement
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of selection process, it cannot either during the selection
process or after the selection process, add an additional
requirement that the candidates should also secure
minimum marks in the interview. What we have found to
be illegal, is changing the criteria after completion of the
selection process, when the entire selection proceeded
on the basis that there will be no minimum marks for the
interview.”
(Emphasis supplied)
20. The discernible ratio in K. Manjusree (supra) is that the criterion
for selection is not to be changed after completion of the selection
process, though in absence of rules to the contrary the Selection
Committee may fix minimum marks either for written examination
or for interview for the purposes of selection. But if such minimum
marks are fixed, it must be done before commencement of selection
process. This view has been followed by another three-Judge Bench
of this Court in Ramesh Kumar v. High Court of Delhi25 wherein
the law on the issue has been summarized thus:
“15. … in case the statutory rules prescribe a particular
mode of selection, it has to be given strict adherence
accordingly. In case, no procedure is prescribed by the rules
and there is no other impediment in law, the competent
authority while laying down the norms for selection may
prescribe for the tests and further specify the minimum
benchmarks for written tests as well as for viva voce."
21. What is important in K. Manjusree (supra) is that the minimum
marks for the interview was fixed after the interviews were over. In
that context, it was observed (a) that the game was played under the
rule that there was no minimum marks for the interview, therefore
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; and (b) if the interviewers
had to proceed on the basis that there were minimum marks to
be secured in the interview for being considered for selection and

25 [2010] 2 SCR 256 : (2010) 3 SCC 104
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that the marks awarded by them would have the effect of barring
or ousting any candidate from being considered for selection, the
awarding of marks might have been markedly different. The above
observation (b) lends credence to the submission made before us
that a change in the eligibility cut off, after evaluation is done, denies
the evaluator an opportunity to modulate the marks for placing the
candidate in a category to which he/she, in the view of the evaluator,
is entitled to be placed.
22. In the reference order the correctness of the decision in K. Manjusree
has been doubted on two counts: (a) if the principle laid down in
K. Manjushree is applied strictly, the High Court would be bound
to recruit 13 of the “best” candidates out of the 21 who applied
irrespective of their performance in the examination held, which
would not be in the larger public interest or the goal of establishing
an efficient administrative machinery; and (b) the decision of this
Court in Subash Chander Marwaha (supra) was neither noticed
in K. Manjusree nor in the decisions relied upon in K. Manjusree.
23. Insofar as the first reason to doubt K. Manjusree is concerned, we
are of the view that the apprehension expressed in the referring
order that all selected candidates regardless of their suitability to
the establishment would have to be appointed, if the principle laid
down in K. Manjusree is strictly applied, is unfounded. Because
K. Manjusree does not propound that mere placement in the list
of selected candidates would confer an indefeasible right on the
empanelled candidate to be appointed. The law in this regard is
already settled by a Constitution Bench of this Court in Shankarsan
Dash26 in the following terms:
"7. It is not correct to say that if a number of vacancies
are notified for appointment and adequate number of
candidates are found fit, the successful candidates acquire
an indefeasible right to be appointed which cannot be
legitimately denied. Ordinarily the notification merely
amounts to an invitation to qualified candidates to apply
for recruitment and on their selection they do not acquire

26 Shankarsan Dash v. Union of India (1991) 3 SCC 47, which has been consistently followed. See also
All India SC & ST Employees Association v. A. Arthur Jeen & Others (2001) 6 SCC 380; M. Ramesh
v. Union of India (2018) 16 SCC 195; and Rakhi Ray and Others v. High Court of Delhi and Others
(2010) 2 SCC 637
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any right to the post. Unless the relevant recruitment rules
so indicate, the State is under no legal duty to fill up all
or any of the vacancies. However, it does not mean that
the State has the license of acting in an arbitrary manner.
The decision not to fill up the vacancies has to be taken
bona fide for appropriate reasons. And if the vacancies or
any of them are filled up, the State is bound to respect the
comparative merit of the candidates, as reflected at the
recruitment test, and no discrimination can be permitted”.
24. As regards the second reason (i.e., K. Manjusree not considering
earlier decision in Subash Chander Marwaha), it would be
appropriate for us to first examine the facts of Marwaha’s case. In
Subash Chander Marwaha (supra) against 15 vacancies in Haryana
Civil Service (Judicial Branch) a select list of 40 candidates, who
obtained minimum 45% or more marks in the competitive examination,
was prepared. The State Government, however, which was the
appointing authority, made only 7 appointments from amongst top
seven in the select list. Candidates who were ranked 8, 9 and 13
filed writ petitions in the High Court for a direction to the State
Government to fill up the remaining vacancies as per the order of
merit in the select list. State Government contested the petitions by
claiming that in its view, to maintain high standards of competence
in judicial service, candidates getting less than 55% marks in the
examination were not suitable to be appointed as subordinate judges.
The High Court allowed the writ petition by taking a view that the
State Government was not entitled to impose a new standard of 55%
of marks for selection as that was against the rule which provided
for a minimum of 45% only.
25. After taking note of the relevant extant rules (i.e., Rules 8 and 10)27
this Court allowed State’s appeal with the following observations:
"10. … The mere fact that a candidate’s name appears
in the list will not entitle him to a mandamus that he be

27 Rule 8. -No candidate shall be considered to have qualified unless he obtains 45% marks in the
aggregate of all the papers and at least 33% marks in the language paper, that is, Hindi (in Devnagri
script).
Rule 10.- (i) The result of the examination will be published in the Punjab Government Gazette;
(ii) Candidates will be selected for appointment strictly in the order in which they have been placed by the
Punjab Public Service Commission in the list of those who have qualified under Rule 8;….”
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appointed. Indeed, if the State Government while making
the selection for appointment had departed from the
ranking given in the list, there would have been a legitimate
grievance on the ground that the State Government had
departed from the rules in this respect. The true effect of
Rule 10 …… is that if and when the State Government
propose to make appointments of Subordinate Judges the
State Government (i) shall not make such appointments by
travelling outside the list, and (ii) shall make the selection for
appointments strictly in the order the candidates have been
placed in the list published in the Government Gazette.
In the present case neither of these two requirements is
infringed by the Government. They have appointed the first
seven persons in the list as Subordinate Judges. Apart from
these constraints on the power to make the appointments,
Rule 10 does not impose any other constraint. There is no
constraint that the Government shall make an appointment
of a Subordinate Judge either because there are vacancies
or because a list of candidates has been prepared and
is in existence.
11. It must be remembered that the petition is for a
mandamus. This Court has pointed out in Dr Rai Shivendra
Bahadur v. Governing Body of the Nalanda College [AIR
1962 SC 1210 : 1962 Supp (2) SCR 144 : (1962) 2 SCJ
208 : (1962) 1 Lab LJ 247 : (1962) 4 FIR 507.] that in
order that mandamus may issue to compel an authority to
do something, it must be shown that the statute imposes
a legal duty on that authority and the aggrieved party has
a legal right under the statute to enforce its performance.
Since there is no legal duty on the State Government
to appoint all the 15 persons who are in the list and the
petitioners have no legal right under the rules to enforce
its performance the petition is clearly misconceived.
12. It was, however, contended by Dr Singhvi on behalf of
the respondents that since Rule 8 ….. makes candidates
who obtained 45% or more in the competitive examination
eligible for appointment, the State Government had no
right to introduce a new rule by which they can restrict the
appointments to only those who have scored not less than
[2024] 12 S.C.R. 55

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55%. It is contended that the State Government have acted
arbitrarily in fixing 55% as the minimum for selection and
this is contrary to the rule referred to above. The argument
has no force. Rule 8 is a step in the preparation of a list
of eligible candidates with minimum qualifications who
may be considered for appointment. The list is prepared
in order of merit. The one higher in rank is deemed to
be more meritorious than the one who is lower in rank. It
could never be said that one who tops the list is equal in
merit to the one who is at the bottom of the list. Except
that they are all mentioned in one list, each one of them
stands on a separate level of competence as compared with
another. That is why Rule 10(ii) …. speaks of "selection for
appointment”. Even as there is no constraint on the State
Government in respect of the number of appointments to
be made, there is no constraint on the Government fixing
a higher score of marks for the purpose of selection. In a
case where appointments are made by selection from a
number of eligible candidates it is open to the Government
with a view to maintain high standards of competence to
fix a score which is much higher than the one required
for mere eligibility. As shown in the letter of the Chief
Secretary already referred to, they fixed a minimum of 55%
for selection as they had done on a previous occasion.
There is nothing arbitrary in fixing the score of 55% for
the purpose of selection, because that was the view of
the High Court also previously intimated to the Punjab
Government on which the Haryana Government thought fit
to act. That the Punjab Government later on fixed a lower
score is no reason for the Haryana Government to change
their mind. This is essentially a matter of administrative
policy and if the Haryana State Government think that in
the interest of judicial competence persons securing less
than 55% of marks in the competitive examination should
not be selected for appointment, those who got less than
55% have no right to claim that the selections be made of
also those candidates who obtained less than the minimum
fixed by the State Government. In our view the High Court
was in error in thinking that the State Government had
somehow contravened Rule 8 of …..”
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26. A close reading of the judgment in Subash Chander Marwaha
(supra) would disclose that there was no change in the rules of the
game qua eligibility for placement in the select list. There the select
list was prepared in accordance with the extant rules. But, since the
extant rules did not create any obligation on the part of the State
Government to make appointments against all notified vacancies,
this Court opined that the State could take a policy decision not to
appoint candidates securing less than 55% marks. With that reasoning
and by taking into account that appointments made were of top
seven candidates in the select list, who had secured 55% or higher
marks, this Court found no merit in the petition of the writ petitioners.
On the other hand, in K. Manjusree (supra), the eligibility criteria
for placement in the select list was changed after interviews were
held which had a material bearing on the select list. Thus, Subash
Chander Marwaha (supra) dealt with the right to be appointed from
the select list whereas K. Manjusree (supra) dealt with the right
to be placed in the select list. The two cases therefore dealt with
altogether different issues. For the foregoing reasons, in our view,
K. Manjusree (supra) could not have been doubted for having failed
to consider Subash Chander Marwaha (supra).
27. In K. H. Siraj v. High Court of Kerala & Ors.28 the High Court of
Kerala invited applications for appointment to the post of Munsif
Magistrate in the Kerala Judicial Service. Out of more than 1800
candidates who had applied, 1292 applications were found valid.
118 candidates passed the written examination. Out of the said
candidates, 88 passed the interview and select list was prepared
from amongst these 88 candidates. Candidates who were not
selected as they had not secured the prescribed minimum marks in
the interview filed writ petitions contending that in the absence of
specific legislative mandate prescribing cut-off marks in interviews,
the fixing of separate minimum cut-off marks in the interview for
further elimination of candidates after a comprehensive written test
touching the required subjects in detail, was violative of the statute.
The writ petitions were allowed by a single judge of the High Court
against which intra-court appeal was filed before division bench of
the High Court. The division bench set aside the order of the learned
single judge against which appeals came before this Court. While

28 [2006] Supp. 2 SCR 790 : (2006) 6 SCC 395
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dismissing the appeals upon interpretation of Rule 7 of the Kerala
Judicial Service Rules, 1991,29 this Court held:
"50. What the High Court has done by the notification
dated 26.3.2001 is to evolve a procedure to choose the
best available talent. It cannot for a moment be stated
that prescription of minimum pass marks for the written
examination or for the oral examination is in any manner
irrelevant or not having any nexus to the object sought to
be achieved. The merit of a candidate and his suitability
are always assessed with reference to his performance at
the examination and it is a well-accepted norm to adjudge
the merit and suitability of any candidate for any service,
whether it be the Public Service Commission (IAS, IFS,
etc) or any other. Therefore, the powers conferred by Rule
7 fully justified the prescription of the minimum eligibility
condition in Rule 10 of the notification dated 26.3.2001.
The very concept of examination envisaged by Rule 7 is a
concept justifying prescription of a minimum as benchmark
for passing the same. In addition, further requirements are
necessary for assessment of suitability of the candidate
and that is why power is vested in a high-powered body
like the High Court to evolve its own procedure as it is
the best judge in the matter…..

xxx xxx xxx
62. Thus it is seen that apart from the amplitude of the
power under rule 7 it is clearly open for the High Court
to prescribe benchmarks for the written test and oral
test in order to achieve the purpose of getting the best
available talent. There is nothing in the rules barring such
a procedure from being adopted. It may also be mentioned

29 Rule 7.- Preparation of lists of approved candidates and reservation of appointments. – (1) The High
Court of Kerala shall, from time to time, hold examinations, written and oral, after notifying the probable
number of vacancies likely to be filled up and prepare a list of candidates considered suitable for
appointment to category 2. The list shall be prepared after following such procedure as the High Court
deems fit and by following the rules relating to reservation of appointments contained in Rules 14 to 17
of part 2 of the Kerala State and Subordinate Services Rules, 1958.
(2) The list consisting of not more than double the number of probable vacancies notified shall be
forwarded for the approval of the Governor. The list approved by the Governor shall come into force from
the date of the approval and shall remain in force for a period of two years or until a fresh approved list
is prepared, whichever is earlier.
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that executive instructions can always supplement the
rules which may not deal with every aspect of a matter.
Even assuming that Rule 7 did not prescribe any particular
minimum, it was open to the High Court to supplement the
rule with a view to implement them by prescribing relevant
standards in the advertisement for selection.”
After observing as above, in K.H. Siraj (supra), this Court distinguished
its earlier decision in P.K. Ramachandra Iyer v. Union of India30
with the following reasoning:
“65. … In Ramachandra Iyer case Rule 14 (…..) mandated
that the marks at the written test and the oral examination
have to be aggregated and the merit list prepared on the
basis of such aggregation of marks. Therefore, the marks
obtained at the written test and the oral test were both
relevant whatever be the percentage, in the preparation of
the merit list. Nevertheless, the examining board prescribed
minimum for viva voce test and eliminated those who failed
to get the minimum. Resultantly, candidates who would
have found a place in the rank list based on the aggregate
of the marks for the two tests stood eliminated because
they did not get the minimum in the test. This was contrary
to Rule 14 and that was the reason why the prescription
of minimum marks for viva voce test was held invalid in
Ramachandra Iyer case.”
28. The decision in K.H. Siraj (supra) makes it clear that if the rules
governing recruitment provides latitude to the competent authority
to devise its procedure for selection it may do so subject to the rule
against arbitrariness enshrined in Article 14 of the Constitution. Even
K. Manjusree (supra) does not proscribe fixing minimum marks for
either the written test, or the interview, as an eligibility criterion for
selection. What K. Manjusree (supra) does is to regulate the stage
at which it could be done. This is clear from the decision of this Court
in Hemani Malhotra v. High Court of Delhi.31 In Hemani (supra)
a contention was raised that the decision in K. Manjusree (supra)

30 [1984] 2 SCR 200 : (1984) 2 SCC 141
31 [2008] 5 SCR 1066 : (2008) 7 SCC 11
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should be regarded as per incuriam for not having noticed earlier
decisions in Ashok Kumar Yadav v. State of Haryana32 as well as
K.H. Siraj (supra). Rejecting the contention, this Court observed:
"16. … what is laid down in the decisions relied upon by the
learned counsel for the respondent is that it is always open
to the authority making the rules regulating the selection
to prescribe the minimum marks both for examination
and interview. The question whether introduction of the
requirement of minimum marks for interview after the entire
selection process was completed was valid or not, never fell
for consideration of this Court in the decisions referred to
by the learned counsel for the respondent. While deciding
the case of K Manjusree the Court noticed the decisions in
P K Ramachandra Iyer v. Union of India, Umesh Chandra
Shukla v. Union of India and Durgacharan Misra v. State
of Orissa, and has thereafter laid down the proposition of
law….. . On the facts and in the circumstances of the case
this Court is of the opinion that the decisions rendered
by this court in K. Manjusree can neither be regarded as
judgment per incuriam nor good case is made out by the
respondent for referring the matter to the larger Bench for
reconsidering the said decision.”
29. The ultimate object of any process of selection for entry into a
public service is to secure the best and the most suitable person
for the job, avoiding patronage and favoritism. Selection based on
merit, tested impartially and objectively, is the essential foundation
of any useful and efficient public service. So, open competitive
examination has come to be accepted almost universally as the
gateway to public services.33 It is now well settled that while a written
examination assesses a candidate’s knowledge and intellectual
ability, an interview test is valuable to assess a candidate’s overall
intellectual and personal qualities. While written examination has
certain distinct advantages over the interview test there are yet no
written tests which can evaluate a candidate’s initiative, alertness,
resourcefulness, dependableness, cooperativeness, capacity for clear

32 [1985] Supp. 1 SCR 657 : (1985) 4 SCC 417
33 Lila Dhar v. State of Rajasthan and Others (1981) 4 SCC 159 paragraph 4.
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and logical presentation, effectiveness in discussion, effectiveness
in meeting and dealing with others, adaptability, judgment, ability
to make decision, ability to lead, intellectual and moral integrity.34
Thus, the written examination assesses the man’s intellect and
the interview test the man himself and “the twain shall meet” for a
proper selection.35
30. What is clear from above is that the object of any process of
selection for entry into a public service is to ensure that a person
most suitable for the post is selected. What is suitable for one
post may not be for the other. Thus, a degree of discretion is
necessary to be left to the employer to devise its method/ procedure
to select a candidate most suitable for the post albeit subject to
the overarching principles enshrined in Articles 14 and 16 of the
Constitution as also the Rules/ Statute governing service and
reservation. Thus, in our view, the appointing authority/ recruiting
authority/ competent authority, in absence of Rules to the contrary,
can devise a procedure for selection of a candidate suitable to the
post and while doing so it may also set benchmarks for different
stages of the recruitment process including written examination
and interview. However, if any such benchmark is set, the same
should be stipulated before the commencement of the recruitment
process. But if the extant Rules or the advertisement inviting
applications empower the competent authority to set benchmarks at
different stages of the recruitment process, then such benchmarks
may be set any time before that stage is reached so that neither
the candidate nor the evaluator/ examiner/ interviewer is taken by
surprise. The decision in K. Manjusree (supra) does not proscribe
setting of benchmarks for various stages of the recruitment process
but mandates that it should not be set after the stage is over, in
other words after the game has already been played. This view
is in consonance with the rule against arbitrariness enshrined in
Article 14 of the Constitution and meets the legitimate expectation
of the candidates as also the requirement of transparency in
recruitment to public services and thereby obviates mal practices
in preparation of select list.

34 See paragraph 5 of Lila Dhar (supra)
35 See paragraph 6 of Lila Dhar (supra)
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(D) RULE DOES NOT APPLY WITH EQUAL STRICTNESS TO
STEPS FOR SELECTION
31. As already noticed in Section (A), a recruitment process inter alia
comprises of various steps like inviting applications, scrutiny of
applications, rejection of defective applications or elimination of
ineligible candidates, conducting examinations, calling for interview
or viva voce and preparation of list of successful candidates for
appointment. Subject to the rule against arbitrariness, how tests
or viva voce are to be conducted, what questions are to be put,
in what manner evaluation is to be done, whether a short listing
exercise is needed are all matters of procedure which, in absence
of rules to the contrary, may be devised by the competent authority.
Often advertisement(s) inviting applications are open-ended in
terms of these steps and leave it to the discretion of the competent
authority to adopt such steps as may be considered necessary in
the circumstances albeit subject to the overarching principle of rule
against arbitrariness enshrined in Article 14 of the Constitution.
32. To elucidate the above proposition we shall notice few instances where
the procedure devised by the recruiting body has been approved by
this Court. In Santosh Kumar Tripathi v. U.P. Power Corporation,36
this Court was required to consider whether the Rule enabling Service
Commission to examine, interview, select and recommend suitable
candidates would include power to hold written examination. This
Court accepted the High Court’s view that power to ‘examine’ would
include holding of written examination.
33. In M.P. Public Service Commission v. Navnit Kumar Potdar37
the question which arose before this Court was as to whether in the
process of short-listing, the Commission has altered or substituted
the criteria or the eligibility of a candidate to be considered for being
appointed against the post of Presiding Officer, Labour Court. In that
context it was observed:
"6. … It may be mentioned at the outset that whenever
applications are invited for recruitment to the different posts,
certain basic qualifications and criteria are fixed and the

36 (2009) 14 SCC 210
37 [1994] Supp. 3 SCR 665 : (1994) 6 SCC 293
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applicants must possess those basic qualifications and
criteria before their applications can be entertained for
consideration. The Selection Board or the Commission
has to decide as to what procedure is to be followed for
selecting the best candidates from amongst the applicants.
In most of the services, screening tests or written tests
have been introduced to limit the number of candidates
who have to be called for interview. Such screening tests
or written tests have been provided in the concerned
statutes or prospectus which govern the selection of the
candidates. But where the selection is to be made only
on basis of interview, the Commission or the Selection
Board can adopt any rational procedure to fix the number
of candidates who should be called for interview. It has
been impressed by the courts from time to time that where
selections are to be made only on the basis of interview,
then such interviews / viva voce tests must be carried
out in a thorough and scientific manner in order to arrive
at a fair and satisfactory evaluation of the personality of
the candidate.”
34. Likewise in Union of India v. T. Sundararaman38 where the eligibility
conditions referred to a minimum of 5 years’ experience, the selection
committee was held justified in shortlisting those candidates with
more than 7 years’ experience having regard to the large number
of applicants compared to the vacancies to be filled. The relevant
observations are being extracted below:
"4. ….Note 21 to the advertisement expressly provides
that if a large number of applications are received the
Commission may shortlist candidates for interview on the
basis of higher qualifications although all applicants may
possess the requisite minimum qualifications. In the case
of M.P. Public Service Commission v. Navnit Kumar Potdar
[(1994) 6 SCC 293 : 1994 SCC (L&S) 1377 : (1994) 28
ATC 286 : JT (1994) 6 SC 302] this Court has upheld
shortlisting of candidates on some rational and reasonable
basis. In that case, for the purpose of shortlisting, a longer

38 [1997] 3 SCR 792 : (1997) 4 SCC 664
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period of experience than the minimum prescribed was
used as a criterion by the Public Service Commission for
calling candidates for an interview. This was upheld by
this Court. In the case of Govt. of A.P. v. P. Dilip Kumar
[(1993) 2 SCC 310 : 1993 SCC (L&S) 464 : (1993) 24 ATC
123 : JT (1993) 2 SC 138] also this Court said that it is
always open to the recruiting agency to screen candidates
due for consideration at the threshold of the process of
selection by prescribing higher eligibility qualification so
that the field of selection can be narrowed down with the
ultimate objective of promoting candidates with higher
qualifications to enter the zone of consideration. The
procedure, therefore, adopted in the present case by the
Commission was legitimate….”
35. Similarly, in Tridip Kumar Dingal v. State of W.B.39 it was held that
shortlisting is permissible on the basis of administrative instructions
provided the action is bona fide and reasonable. The relevant
observations in the judgment are extracted below:
"38. … The contention on behalf of the State Government
that written examination was for shortlisting the candidates
and was in the nature of “elimination test” has no doubt
substance in it in view of the fact that the records disclose
that there were about 80 posts of Medical Technologists and
a huge number of candidates, approximately 4000 applied
for appointment. The State authorities had, therefore, no
other option but to “screen” candidates by holding written
examination. It was observed that no recruitment rules
were framed in exercise of the power under the proviso to
Article 309 of the Constitution and hence no such action
could be taken. In our opinion, however, even in absence
of statutory provision, such an action can always be
taken on the basis of administrative instructions—for the
purpose of “elimination” and “shortlisting” of huge number
of candidates provided the action is otherwise bona fide
and reasonable.”

39 [2008] 15 SCR 194 : (2009) 1 SCC 768
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36. Another example is in respect of fixing different cutoffs for different
subjects having regard to the relative importance of the subjects
and their degree of relevance.40 These instances make it clear that
this Court has been lenient in letting recruiting bodies devise an
appropriate procedure for successfully concluding the recruitment
process provided the procedure adopted has been transparent,
non-discriminatory/ non-arbitrary and having a rational nexus to the
object sought to be achieved.

(E) PROCEDURE PRESCRIBED IN THE EXTANT RULE NOT
TO BE VIOLATED
37. In Sivanandan C.T. (supra) the issue before the Constitution Bench
was whether for selection minimum marks could be prescribed
contrary to the extant rules and the advertisement. Answering in
the negative, the Constitution Bench, speaking through one of us
(Dr. D.Y. Chandrachud, CJ), held:
"15. The Administrative Committee of the High Court
decided to impose a cut off for the viva-voce examination
actuated by the bona fide reason of ensuring that
candidates with requisite personality assume judicial office.
However laudable that approach of the Administrative
Committee may have been, such a change would be
required to be brought in by a substantive amendment
to the rules which came in much later as noticed above.
This is not a case where the rules of the scheme of the
High Court were silent. Where the statutory rules are silent,
they can be supplemented in a manner consistent with the
object and spirit of the Rules by an administrative order.
16. In the present case, the statutory rules expressly
provided that the select list would be drawn up on the
basis of the aggregate marks obtained in the written
examination and the viva-voce. This was further elaborated
in the scheme of examination which prescribed that there
would be no cut off marks for the viva-voce. This position
is also reflected in the notification of the High Court dated
30 September 2015. In this backdrop we have come to

40 Banking Service Recruitment Board, Madras v. V. Ramalingam (1998) 8 SCC 523
[2024] 12 S.C.R. 65

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the conclusion that the decision of the High Court suffered
from its being ultra vires the 1961 Rules besides being
manifestly arbitrary."
38. Following Sivanandan CT (supra), a three-Judge Bench of this
Court in Salam Samarjeet Singh v. The High Court of Manipur
at Imphal & Anr41 held:
"31. … Prescribing minimum marks for viva-voce segment
may be justified for the holistic assessment of a candidate,
but in the present case such a requirement was introduced
only after commencement of the recruitment process and
in violation of the statutory rules. The decision of the Full
Court to depart from the expected exercise of preparing
the merit list as per the unamended rules is clearly
violative of the substantive legitimate expectation of the
petitioner. It also fails the tests of fairness, consistency
and predictability and hence is violative of Article 14 of
the Constitution of India.”
39. There can therefore be no doubt that where there are no Rules or
the Rules are silent on the subject, administrative instructions may
be issued to supplement and fill in the gaps in the Rules. In that
event administrative instructions would govern the field provided they
are not ultra vires the provisions of the Rules or the Statute or the
Constitution. But where the Rules expressly or impliedly cover the
field, the recruiting body would have to abide by the Rules.

(F) APPOINTMENT MAY BE DENIED EVEN AFTER PLACEMENT
IN SELECT LIST.
40. In Section (C) above, we have already noticed the Constitution Bench
decision of this Court in Shankarsan Das (supra) where it was held:
"Unless the relevant recruitment rules so indicate, the State
is under no legal duty to fill up all or any of the vacancies.
However, it does not mean that the State has the license
of acting in an arbitrary manner. The decision not to fill up
the vacancies has to be taken bona fide for appropriate
reasons. And if the vacancies or any of them are filled up,

41 [2024] 8 SCR 885 : 2024 INSC 647
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the State is bound to respect the comparative merit of the
candidates, as reflected at the recruitment test, and no
discrimination can be permitted."
41. Thus, in light of the decision in Shankarsan Das (supra), a candidate
placed in the select list gets no indefeasible right to be appointed
even if vacancies are available. Similar was the view taken by this
Court in Subash Chander Marwaha (supra) where against 15
vacancies only top 7 from the select list were appointed. But there
is a caveat. The State or its instrumentality cannot arbitrarily deny
appointment to a selected candidate. Therefore, when a challenge is
laid to State’s action in respect of denying appointment to a selected
candidate, the burden is on the State to justify its decision for not
making appointment from the Select List.

CONCLUSIONS
42. We, therefore, answer the reference in the following terms:
(1) Recruitment process commences from the issuance of the
advertisement calling for applications and ends with filling up
of vacancies;
(2) Eligibility criteria for being placed in the Select List, notified
at the commencement of the recruitment process, cannot be
changed midway through the recruitment process unless the
extant Rules so permit, or the advertisement, which is not
contrary to the extant Rules, so permit. Even if such change
is permissible under the extant Rules or the advertisement, the
change would have to meet the requirement of Article 14 of the
Constitution and satisfy the test of non-arbitrariness;
(3) The decision in K. Manjusree (supra) lays down good law and
is not in conflict with the decision in Subash Chander Marwaha
(supra). Subash Chander Marwaha (supra) deals with the right
to be appointed from the Select List whereas K. Manjusree
(supra) deals with the right to be placed in the Select List. The
two cases therefore deal with altogether different issues;
(4) Recruiting bodies, subject to the extant Rules, may devise
appropriate procedure for bringing the recruitment process to its
logical end provided the procedure so adopted is transparent,
non-discriminatory/ non-arbitrary and has a rational nexus to
the object sought to be achieved.
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(5) Extant Rules having statutory force are binding on the recruiting
body both in terms of procedure and eligibility. However, where
the Rules are non-existent, or silent, administrative instructions
may fill in the gaps;
(6) Placement in the select list gives no indefeasible right to
appointment. The State or its instrumentality for bona fide
reasons may choose not to fill up the vacancies. However, if
vacancies exist, the State or its instrumentality cannot arbitrarily
deny appointment to a person within the zone of consideration
in the select list.
43. Let the appeals be placed before appropriate Bench for decision in
terms of the answers rendered above, after obtaining administrative
directions from Hon’ble the Chief Justice.

Result of the case: Reference answered.

†
Headnotes prepared by: Ankit Gyan