'Do not deny appointment if there is vacancy'; Supreme Court's judgement

NEW DELHI: The Supreme Court on Thursday said that if there are vacancies, the candidates in the rank list should not be denied appointment and that the eligibility criteria should not be changed mid-way through the selection process unless the relevant rules permit so. The unanimous judgment of the five-judge constitution bench headed by Chief Justice DY Chandrachud comes as a relief to lakhs of candidates seeking government jobs.

"Recruiting bodies, subject to the extant rules, may devise an 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," the top court said.

"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 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," the top court said while holding that the recruitment process, cannot be changed midway through the recruitment process unless the extant rules so permit.

The Supreme Court further said that the 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," it said.

"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 the top seven 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 an appointment from the Select List," the top court said

The Supreme Court was dealing with whether the rules of the game can be changed midstream after a selection process is instituted.

Qualifications should not be changed midway
The court emphasized that eligibility criteria cannot be altered illegally after recruitment processes begin. Government appointments must be transparent and free from discrimination. The recruitment process spans from issuing the notification inviting applications to filling vacancies. The court ruled that once recruitment starts, the qualifications announced at the outset cannot be unilaterally changed midway.

In another case, the Supreme Court had slammed the Kerala PSC for changing its stand on the basic qualification of the post of LD Clerk in the Kerala Water Authority.

The top court further said that 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," it said.