Final Select List Signals Completion Of Appointment Process; It Can't Be Scrapped For Fresh Process As Per New Rules : Supreme Court

The Supreme Court (October 4) held that the action of the Bihar Government to scrap the entire selection for the post of Junior Engineer issued through a 2019 notification by the Bihar Technical Service Commission (BTSC) is not permissible after the whole selection process has already taken place.

Brief facts

The present batch of appeals arises out of the impugned judgment of the Patna High Court dated February 16, 2023. Before the High Court, certain petitioners, who were unsuccessful candidates in the recruitment process conducted by the BTSC pursuant to the advertisement dated March 8, 2019, for the post of Junior Engineer (Civil), challenged the vires of Rule 9(1)(ii) of the Bihar Water Resources Department Subordinate Engineering (Civil) Cadre Recruitment (Amendment) Rules 2017.

By an amendment, more particularly to Rule 9, which restricted the eligibility criteria only to those candidates who possessed a Diploma from an institute approved by the All India Council of Technical Education, New Delhi (AICTE).

The petitioners before the High Court were found ineligible as their institutions were not recognised by AICTE. The petitioners cited Bharathidasan University & Anr. vs. AICTE & Ors. (2001), where the Supreme Court interpreted provisions of the AICTE Act, 1987 and held that universities are not required to obtain approval from AICTE for introducing technical courses or programs.

The petitioners relied on a 2022 public notice issued by AICTE, which stated that the university does not require prior approval of AICTE to commence a new department, course or programme in technical education. This stand was reinforced by the AICTE before the High Court through a counter affidavit in Bharathidasan University.

During the pending of this case, other proceedings challenging the 2017 order were pending before the High Court. Through an order on December 6, 2019, the High Court clarified that all orders of appointment must be subject to the outcome of the proceedings.

On April 2, 2022, the BTSC issued a Select List of selected candidates and they were allotted specific departments. However, it was mentioned that the same shall be subjected to final outcome of the proceedings.

Thereafter, in a separate analogous writ proceedings, Rule 4(A) which granted 40% institutional reservation to diploma holders from State-run Polytechnic Institutes was found to be arbitrary. Consequently, on April 19, 2022, the Court set aside Select List to the extent prepared in terms of Rule 4(A) was set aside and BSTC was directed to prepare afresh a select list granting 40 percent institutional reservation to all the diploma holders from any polytechnic institute recognised by the AICTE and affiliated with the State Board of Technical Institutions.

A Final Select List was prepared but the same was not released as ordered by the Patna High Court on December 1, 2022.

However, eventually, the Bihar Government on January 25, 2023, decided to cancel the appointment process under the advertisement and to initiate approval for the amendment Rules. This decision was approved by the High Court and therefore, considering that nothing remains in the matter, writ petitions were disposed of.

The High Court added that since 4 years have elapsed from the date of the last advertisement, the State Government must take provisions in the proposed amendment for giving age relaxation as a one-time measure.

This order is challenged before the Supreme Court by those candidates who were successful as per the Select List. Both parties contended that the cancellation of the entire selection process would seriously impact their interests.

However, it was contended by the Bihar Government that the 2017 Rules have already been repealed and Bihar Subordinate Engineering (Civil/Mechanical/Electrical) Cadre Rules, 2023 (the 'New Rules') were notified. In compliance with the High Court's order, a one-time age relaxation has been given.

Moreover, the BTSC has issued a fresh requisition for the selection against 2252 vacant posts for Junior Engineers.

What did the Supreme Court say?

The Supreme Court at the outset found that the amendment was prima facie contrary to the decision of the Supreme Court in Bharathidasan University.

During the proceedings, the Court sought a Final Select List from the Bihar Government and the same was produced in sealed cover.

Considering the same, the Court said: "Presently, 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."

It also found that the High Court 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.

Considering that the High Court did not set aside the selection list, and since AICTE has continued its stand, and the order of the High Court dated April 19, 2022 has attained finality, the Supreme Court concluded: "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."

It added: "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.."

A bench of Justices Bela M. Trivedi and Satish Chandra Mishra had directed the BTSC to proceed with the Fresh Select List and revise it to include all meritorious candidates who were otherwise eligible but were declared ineligible solely on account of the 2017 amendment to the Rules within 3 months.

The Bihar Government is directed to proceed with the same within 30 days.

Case Details: Shashi Bhushan Prasad Singh v. The State of Bihar And Others, SLP (C) No. 7257 of 2023.

Citation : 2024 LiveLaw (SC) 781

Appearances: Senior Advocates Rajeev Dhavan, Ranjit Kumar and Meenakshi Arora (for Appellants), Patwalia (for Bihar Government)

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