In Shashi Bhushan Prasad Singh vs. The State of Bihar and Others, the Division Bench of Justices Bela Trivedi and Satish Chandra Sharma passed the final order on October 4, 2024. The Court observed: "the State action of scrapping the entire selection process is not permissible. In view of the peculiar circumstances of this case, particularly the prolonged pendency leading to huge number of vacant posts that hinder the Government’s functioning, this Court finds it appropriate for the State/BTSC to proceed with the Fresh Select List submitted in compliance with the order dated 19.04.2022 in CWJC No. 7312/2021 which has attained finality, as also taking into consideration as far as possible, the interest of the candidates who were found successful."
Senior Counsels for the Appellants, Rajeev Dhavan, Ranjit Kumar and Meenakshi Arora contended that the writ petitioners, having knowingly participated in the selection process under the advertisement were bound by the doctrine of acquiescence and therefore, could not have challenged the eligibility criteria post-facto. They relied on Court's decision in Punjab National Bank vs. Anit Kumar Das (2021) 12 SCC 80 and The Chairman SBI & Anr. vs. M.J. James (2022) 2 SCC 301. They submitted that the cancellation of the entire selection process after its completion and preparation of the Final Select List, is unjustified and amounts to changing the rules of the game after the declaration of results, which is impermissible. The appellants, who emerged successful after the due process of selection which was carried out as per the Advertisement, have a vested right to be appointed and are instead being made to suffer though no fault of their own. It was also contended that the decision taken by the State Government and approved by the High Court amounts to arbitrary action as it fails to specify the concern/anomaly with Rule 9(1)(iii) which necessitated the cancellation of the entire process. The Supreme Court agreed with their submissions.
It all began with the issuance of Advertisement No. 01/2019 dated March 8, 2019 by the Bihar Technical Service Commission (BTSC) inviting applications for 6,379 vacancies to the post of Junior Engineer across various state departments.
In this case relating to selection and appointment to the post of Junior Engineer, wherein advertisement was issued on March 8, 2019, Patna High Court's Division Bench of Justices P. B. Bajanthri and Arun Kumar Jha noticed certain errors in the Rules governing the post of Junior Engineer. The State Government decided to cancel the process of recruitment to the post of Junior Engineer with reference to advertisement and proposed to issue a fresh or amendment of Rules while rectifying certain errors which have crept in the existing Rules. The Court inferred that the prayer of 144 petitioners does not survive for consideration because of the proposed amendment. Its final order dated February 16, 2023 reads: "State is permitted to carry out necessary amendment and proceed afresh to advertise for the post of Junior Engineer." The High Court's judgement was authored by Justice Bajanthri.
The writ petitioners were the unsuccessful candidates in the Recruitment Process conducted pursuant to the Advertisement for the post of Junior Engineer (Civil), had challenged the vires of Rule 9(1)(ii) of the Bihar Water Resources Department Subordinate Engineering (Civil) Cadre Recruitment (Amendment) Rules 2017, published vide notification dated November 7, 2017, prescribing technical qualification eligibility for selection/appointment to the technical post in the State of Bihar. Notably, the Rule 9(1)(iii) of the Bihar Water Resources Department Subordinate Engineering (Civil) Cadre Recruitment Rules, 2015 was amended in 2017.
The Supreme Court observed that this amendment was "prima facie contrary to the decision of this Court" in Bharathidasan University & Anr. vs. AICTE & Ors. 2001 (8) SCC 676.
Subsequently, the successful candidates in the said Recruitment Process approached the Supreme Court. The judgement of the Division Bench of the Court records that prior to the filing of CWJC No. 3411/2022 in which Justice Bajanthri authored the order, the High Court was already hearing several analogous writs challenging different provisions of the Rules as applicable to the selection process under the Advertisement. Accordingly, vide order dated May 2, 2019 passed in CWJC No. 9887/2019, the BTSC was permitted to continue the selection process, with the results to be kept in a sealed cover, pending the outcome of the proceedings. This order was later modified vide order dated 06.12.2019 in CWJC No. 21651/2018 whereby the High Court allowed the selection process to be completed but directed that all orders of appointments must state that appointments are subject to the outcome of the writ petitions and therefore, the selected candidates cannot claim any equity. Accordingly, on 02.04.2022, the BTSC published its selection list for the posts advertised under the Advertisement and the selected candidates were also allotted to specific departments.
The Supreme Court's judgement records: "During the present proceedings, vide order dated 10.09.2024, this Court sought information regarding the Final Select List from the State Government and the same was produced before this Court in sealed cover." It also records that "despite the preparation of the Final Select List which signals the conclusion of the appointment process, the State Government seeks to scrap the entire process and undertake a fresh appointment process under the New Rules. In the considered opinion of this Court, this amounts to effectively changing the rules of the game after the game was played which is impermissible and deprives the candidates of their legitimate right of consideration under the previous Rules."
The Supreme Court observes: "The High Court in the impugned order has abruptly and without assigning reasons and without adjudicating any issues involved in the writ petitions, disposed of the same, recording the statement made by the learned counsel for the State, and permitted the State to amend Rules in question. Since, the entire recruitment process was concluded as per the extant Rules till the selection list was declared on 02.04.2022, which has not been specifically set aside by the High Court, and since the AICTE has also continued its stand that its approval is not necessary for the private institutions, and since the order dated 19.04.2022 passed in CWJC No. 7312/2021 has attained finality, in our opinion, the interest of justice would be met if the State/Commission is directed to prepare a fresh select list of meritorious candidates in respect of the Advertisement dated 08.03.2019, keeping in view the above facts and keeping in view that no appointments to the post of Junior Engineer (Civil) have been made since last more than ten years. Hence, it is required to be directed that a fresh selection list for the vacancies advertised in the Advertisement dated 08.03.2019 be prepared of the meritorious candidates, considering the above observations and in compliance with the order dated 19.04.2022 passed by the High Court in CWJC No. 7312/2021 as expedient as possible and preferably within three months of this order."
The Division of the Supreme Court relied on the three-judge bench decision of the Court in K. Manjusree vs. State of Andhra Pradesh & Anr. (2008) 3 SCC 512 wherein the Court, relying on previous decisions, explicitly held that "introducing new requirements into the selection process after the entire selection process was completed amounted to changing the rules of the game after the game was played."
It also relied on Court's decision in Maharashtra SRTC v. Rajendra Bhimrao Mandve [(2001) 10 SCC 51 : 2002 SCC (L&S) 720], wherein the Court observed that “the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced”.
In the Bihar case, the position is much more serious because "not only the rules of the game were changed, but they were changed after the game had been played and the results of the game were being awaited. That is unacceptable and impermissible.”
In its 19 page long judgement, the Court directed that "the Fresh Select List must be appropriately revised in the following manner:
(i) The Fresh Select List be prepared in view of order dated 19.04.2022 passed by the High Court in CWJC No. 7312/2021.
(ii) The Fresh Select List shall also include as far as possible those meritorious candidates who were otherwise eligible but were declared ineligible solely on account of the 2017 amendment to the Rules i.e., on account of their institute not being recognised by the AICTE, and all similarly placed successful candidates.
(iii) The BTSC is directed to prepare the Revised Select List within 3 months of this Order and the State Government is directed to act upon the Revised Select List submitted by the Commission within a period of 30 days thereafter." The judgement was authored by Justice Sharma.
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