The principle of law that the rules of the game cannot be changed once the game has begun, has been upheld in the decisions of the Supreme Court in catena of cases. It has been reiterated again while setting aside the judgement of the Patna High Court's Division Bench of Justices Chakradhari Sharan Singh and Madhuresh Prasad which ignored that "if benchmarks are to be laid down in different steps of the recruitment process, they cannot be laid down after the completion of that particular step, when the game has already been played." Strangely, not only benchmarks were being set after the game had been played, rather the State decided that a portion of the game itself, should not have been played at all. In the Abhay Kumar Patel case, the "game" had not only commenced but was at its fag end.
In Abhay Kumar Patel & Ors. vs. The State of Bihar (2026), Supreme Court's Division Bench of Justices J. K. Maheshwari and Atul S. Chandurkar delivered a 32-page long judgement dated January 6, 2026 observed:"....the finding of the High Court that the amendment was merely a policy decision and could be applied retrospectively to the selection process in vogue is completely erroneous. Even assuming that the 2022 Amendment Rules are policy decisions of the State, they cannot be implemented in a manner that violates the fundamental right to equality under Article 14 and 16 of the Constitution of India by changing the selection criteria after the selection process has already begun." It added:".... in our considered opinion, the retrospective application of Rule 8(5) of the 2019 Rules, as introduced by the 2022 Amendment Rules, cannot be sustained insofar as the recruitment process initiated vide the 2019 Advertisements following the 2019 Rules prevalent at the said point of time." The judgement was authored by Justice Maheshwari. There were 137 appellants and 66 respondents in the case.
The 31-page long final judgment and order dated July 5, 2023 passed in CWJC No. 18302 of 2022 by the High Court which dismissed the writ petitions filed by the 192 appellants against 11 respondents was authored by Justice Prasad. It was assailed in the appeal in the Supreme Court.
The dispute arose with respect to the retrospective application of an amendment to the Bihar Engineering Services Class – II Recruitment Rules, 2019, specifically the introduction of Rule 8(5), whereby weightage for prior contractual work experience was introduced after the selection process comprising the written examination had initiated and the provisional merit list had already been published.
The appellants challenged the retrospective application of the Bihar Engineering Service Class-II Recruitment (Amendment) Rules, 2022 vide Notification No. Sec.02/Estt.-Appointment-01-01/2019-5565(S) dated 09.11.2022, issued by the Road Construction Department, Government of Bihar, which amended the 2019 Rules with retrospective date i.e., 06.03.2019. The appellants challenged the retrospective application of the Bihar Engineering Service Class-II Recruitment (Amendment) Rules, 2022 vide Notification No. Sec.02/Estt.-Appointment-01-01/2019-5565(S) dated 09.11.2022, issued by the Road Construction Department, Government of Bihar, which amended the 2019 Rules with retrospective date i.e., 06.03.2019.
The High Court, while dismissing the writ petition, had found that the decision to grant weightage and age relaxation to contractual employees was a decision taken in line with a pre-existing 2018 policy for grant of such benefits. It was held that the appellants had merely participated in recruitment process and no rights had accrued in their favour at that stage. The Court observed that the power to legislate under the proviso to Article 309 of the Constitution of India includes the power to legislate retrospectively. Since the minimum requisite qualification was changed and the appellants were not disqualified, no prejudice has been caused by retrospective application of Rule 8(5) inserted by the 2022 Amendment Rules.
The appellants' counsel submitted that the rules of the game cannot be changed once the game has begun. Reference was made to the decisions of this Court in K. Manjusree vs. State of Andhra Pradesh & Anr.2008) 3 SCC 512 and Tej Prakash & Ors. vs. Rajasthan High Court and Ors.2025) 2 SCC 1 arguing that the introduction of new eligibility criteria for selection once the process has started was impermissible.
The Supreme Court observed:".... the irresistible conclusion that can be drawn in the facts of the present case is that the selection process pursuant the 2019 Advertisements must be finalized in accordance with the 2019 Rules as they existed on the date of the advertisements, i.e., without taking into account the 2022 Amendment Rules by which the weightage and age relaxation for contractual experience was introduced. As such, the final merit list shall be drawn and appointments shall be made, completing the process within 2 months’ from the date of this judgment.44. Consequently, the impugned judgment and order dated 05.07.2023 passed by the High Court of Judicature at Patna in CWJC No. 18302 of 2022 is set aside. The appeal is allowed. The respondents are directed to finalize the appointments based on the merit lists published in June/July 2022, strictly following the unamended 2019 Rules. 45. It has been informed that the State has made appointments pursuant to the impugned judgment of the High Court which stands set-aside, however, their services may be dispensed with, in accordance with law. We also make it clear that the directions as issued shall not have any adverse impact if the State of Bihar wishes to continue the services of the persons appointed as above, if they are deemed fit, on the vacancies available, if any, or by creating supernumerary posts without affecting the merit list as indicated above."
Supreme Court drew on the decision in Partha Das vs. State of Tripura, 2025 SCC OnLine SC 1844. wherein Justice Maheshwari, while dealing with a challenge which was brought by the candidates to the decision of the Tripura Government to cancel an ongoing recruitment process after publication of the provisional merit list pursuant to an executive instruction of the State to do away with interviews in recruitment process of Class-IV posts held as follows:
“47. The recruitment process under the two advertisements commenced on the date of their respective issuance. At the cost of repetition and as discussed above, much water had flown after such commencement. The State had taken active and tangible steps such as constituting the Recruitment Board, setting up different State teams for recruitment rallies which were conducted all across India, candidates were tested physically, in a written exam and orally through an interview. A provisional merit list was purportedly prepared in pursuance of the recruitment process. After all this, Cancellation Memorandum was issued on 20.08.2018 which was general in nature, effectively setting the clock back and putting the entire process at nought.
48. The reasoning behind the said cancellation, as suggested by the State of Tripura, is that it was decided by the Government that not only future recruitment, but also ongoing recruitment processes must invariably be governed by the NRP. In the context of the present case, the marked difference which would be brought about by the NRP is that interview cannot be conducted as a part of the procedure for recruitment given that the post of ‘Enrolled Follower’ is a Group-D post, even though the stage of taking interviews is already over in the present case.
The Supreme Court in Tej Prakash Pathak (Supra) affirmed the decision in K. Manjusree v. State of A.P., and held that the recruitment authority can devise a procedure for selection only in absence of rules to the contrary, however, the same should be done prior to commencement of the recruitment process. It has been held that if benchmarks are to be laid down in different steps of the recruitment process, they cannot be laid down after the completion of that particular step, when the game has already been played. The relevant portion of the said judgment is reproduced below as thus:—
“52. 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.
Notably, the decision in K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] 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 consistent 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.
In pursuance of Rule 24(e)of the TSR Rules, the DGP had approved interview as one of the tests required to be passed. Thereafter, candidates participated in interviews and were ranked accordingly. It can be said that the stage of interview was over much prior to the issuance of the Cancellation Memorandum.
The written examinations were held in March2022. The results were declared in June/July 2022. The candidates were called for document verification. At this stage, the selection process had proceeded significantly, and would have concluded with the filling up of vacancies.
The issuance of the 2022 Amendment Rules, introducing Rule 8(5) with retrospective effect from 06.03.2019, attempts to rewrite the rules of the game which has already begun. By reducing the weightage of the written examination to 75 marks and introducing 25 marks for contractual experience, the State has fundamentally altered the basis of selection and changed the ‘eligibility criteria for being placed in the merit list’ which is not permissible.
Justice Maheshwari observed:"While the State undoubtedly has the power to amend rules under the proviso to Article 309 of the Constitution of India, this power is not unbridled. The power of retrospective legislation cannot be exercised to take away vested rights or to arbitrarily disrupt a selection process that has already resulted in the identification of successful candidates by publication of a provisional merit list. 37. The distinction drawn by the respondents regarding the "provisional" nature of the merit list is untenable. The list was provisional subject to verification of documents, not subject to a fundamental change in the criteria for placement in the merit list itself. Once a candidate has cleared the written examination and gound a place in the merit list based on the announced criteria in line with the extant Rules and the advertisement, a legitimate expectation arises that the selection will be finalized based on the criteria which was advertised at the time of initiation of the recruitment process. 38. The retrospective application of Rule 8(5) creates an anomaly where candidates who competed under one set of rules are now being judged by another, ex post facto. This directly impacts the appellants, who may be pushed down the merit list or ousted entirely by candidates who score lower in the written exam but gain the newly introduced additional marks for contractual service. 39. We also note the argument regarding the General Administration Department’s 2018 Memo and 2021 Memo. While these resolutions reflect a policy to grant weightage, they were executive instructions. The recruitment in question was governed by the statutory 2019 Rules, which did not incorporate these resolutions at the time of the 2019 Advertisements. The State cannot rely on executive instructions to override statutory rules that were in force during the initiation of the recruitment process, especially to the detriment of candidates who had no notice of such weightage or age relaxation. Additionally, when the 2019 Advertisements were issued, there was no whisper about the applicability of the said resolutions; it was only when a challenge was made by the candidates that the State raised the defense, taking a pretext of the aforesaid resolutions, which is an afterthought and not tenable at all."
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