Abhay Kumar Patel vs. The State Of Bihar

REPORTABLE
IN THE SUPREME COURT OF INDIA
2026 INSC 24
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2026
(ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 22323 OF 2023)

ABHAY KUMAR PATEL & ORS. …APPELLANTS
versus
STATE OF BIHAR & ORS. …RESPONDENTS
WITH
SPECIAL LEAVE PETITION (CIVIL) NO. 8231 OF 2025
UTTAM KUMAR & ORS ... PETITIONERS
versus
THE STATE OF BIHAR & ORS. … RESPONDENTS
J U D G M E N T
J.K. Maheshwari, J.
Civil Appeal No. of 2026
Signature Not Verified
1. Leave granted.
Digitally signed by
Gulshan Kumar Arora
Date: 2026.01.06
16:57:00 IST
Reason:
1


2. Assailing the final judgment and order dated 05.07.2023
passed in CWJC No. 18302 of 2022 by the High Court of Judicature
at Patna (hereinafter referred to as “ High Court ”), dismissing the writ
petition filed by the appellants, the present appeal has been
preferred.
3. The dispute in the present case is with respect to the
retrospective application of an amendment to the Bihar Engineering
Services Class – II Recruitment Rules, 2019 (hereinafter referred to
as “ 2019 Rules ”), 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.
4. The appellants had preferred the Writ Petition challenging 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) (hereinafter referred to
as “ 2022 Amendment Rules ”) 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.
2


5. The Division Bench of the High Court dismissed the writ
petition, observing that the issuance of the 2022 Amendment Rules
was a policy decision of the State to grant weightage to contractual
employees and that the appellants had no indefeasible right to
appointment merely because of inclusion of their names in the merit
list, and as such, retrospective application of the said amendment
would not be illegal. Hence, the present appeal.
FACTS IN BRIEF
6. Prequel to the present litigation, the Road Construction
Department, Government of Bihar, notified the 2019 Rules vide
Notification No. 02/Estt.-Appointment-01-01/2018-3042(S) dated
06.03.2019. These rules were promulgated by the State Government
in exercise of powers conferred under Article 309 of the Constitution
of India, to govern the recruitment to the post of Assistant Engineers
in various departments. Rules 8, 9, 12 and 13 of the said Rules are
relevant for the said purpose, and are reproduced as under:
“ 8. Candidate –
(1) shall be of such age as may be notified by the Governor,
(2) shall be of good conduct,
3


(3) shall be of good health and not of unsound mind,
(4) (i) Shall be degree holder of Civil/Mechanical/Electrical
Engineering from any Indian University/Institute (AICTE Approved),
OR,
(ii) Only regular technical courses Degree obtained from any
Deemed Universities duly recognized by University Grants
Commission shall be valid and in technical courses degree
conducted through distance education shall not be entertained
(iii) Must be an Associate Member of the Institution of Engineers
or must have passed 'A' and 'AA' from any of the branches of the
Institution of Engineers or must have passed A' and 'AA' from an
Institution recognized by the Institution of Engineers India
Note -
(1) A person who is in Government service in a temporary or officiating
capacity or on probation shall be eligible to apply for direct recruitment
under the provisions of this rule
(2) Save the following persons, no person confirmed in Government
service, shall be eligible
(a) Members of the Lower Engineering Services and
(b) Members of other services possessing the qualifications
specified in clause (4) shall be eligible for appointment by
promotion or transfer in accordance with the procedures laid
down in Part III of these Rules.
xxx xxx xxx xxx xxx
9. (a) Every year, as appropriate, the Commission will declare
vacancies to be filled by direct recruitment in this service on the basis
of results of the competitive examination and will invite applications
only from the candidates for appointment under Rule 5 and 6. The
examination will be conducted according to the syllabus specified in
the schedule appended to these rules, which will be changed from
time to time by the Commission with the prior approval of the State
Government.
4


Provided that the Commission shall limit the number of
candidates qualified for admission to the examinations of a particular
year may fix and if the number of candidates exceeds the fixed
number, the Commission Will be able to make preliminary selection of
the candidates and on the basis of preliminary examination (written)
will be able to admit the candidates in the examination……
xxx xxx xxx xxx xxx
12. Provided that in determining the suitability of a candidate for
appointment, the total marks obtained in the written examination and
not the marks obtained in any particular subject or subjects will be
considered.
Provided also that the Commission may determine relaxation in
minimum qualifications for Scheduled Caste and Scheduled Tribe
candidates.
xxx xxx xxx xxx xxx
13. On the basis of the marks obtained in the written examination,
the names of the candidates along with their applications will be
numbered by the Commission in the order of merit and merit. This list
will be presented to them by the date as directed by the Governor.”
7. The Bihar Public Service Commission (hereinafter referred to
as “ BPSC” ) issued four advertisements inviting applications for the
post of Assistant Engineer (Civil, Mechanical, and Electrical) in
various departments as indicated in the table below (hereinafter
collectively referred to as “ 2019 Advertisements ”) –

5

8. As per Rule 13 of 2019 Rules, a written examination was to be
conducted for the selection of the eligible candidates for appointment
against the posts so notified. The final merit list had to be drawn on
basis of scores obtained in the written examination.
9. The selection process commenced with the issuance of the
2019 Advertisements, and written examination was conducted on
12.03.2022. Based on the performance of the recruitment candidates
in the written examination, the BPSC published provisional merit
lists of successful candidates and such provisional selected
candidates including the appellants herein were called for document
verification on various dates as tabulated below:

6

10. In the meanwhile, and after the written examination pursuant
to the 2019 Advertisements was conducted, CWJC 9797 of 2022 was
filed by some people who were working on contractual basis in the
State of Bihar, on 07.07.2022 challenging the 2019 Rules,
contending inter alia that in the said rules, there is no provision for
weightage of work experience or age relaxation on contract basis in
terms of the Memorandum No. 3/M0-13/2018 S No. 12534/Patna-
15 dated 17.09.2018 of the Department of General Administration of
the Government of Bihar and the Memo No. 1003 dated 22.01.2021
of the General Administration Department of the Government of
Bihar (hereinafter referred to as the “ 2018 Memo ” and “ 2021 Memo ”
respectively). From record it is not clear that any directions were
passed in the said Writ Petition, in fact, it was disposed of as
infructuous on 23.03.2023 granting liberty to file a separate writ
petition. It is not clear from the record as to whether any subsequent
writ petition was filed or not.

11. After publication of the provisional merit lists and conclusion
of document verification pursuant to the 2019 Advertisements, the
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State Government issued the 2022 Amendment Rules vide
notification dated 09.11.2022 in exercise of powers under the proviso
to Article 309 of the Constitution of India. This notification amended
Rule 8 of the 2019 Rules, inserting a new sub-rule, Rule 8(5), which
introduced a provision for grant of additional marks up to a
maximum of 25 per 100 marks to candidates having work experience
on a contractual basis in government offices and institutions under
the State of Bihar on the post of Assistant Engineer
(Civil/Mechanical/Electrical). The maximum weightage of marks
obtained in the written examination conducted by the BPSC was fixed
at 75 marks per 100 marks. The said amendment also contained a
that “to calculate the weightage of the marks in the examination
note
the percentage marks obtained in the examination shall be multiplied
by 0.75”. The 2022 Amendment Rules were made applicable
retrospectively w.e.f. 06.03.2019 i.e., the date the original 2019 Rules
came into existence. Additionally, Rule 8(5)(iii) provided for relaxation
in the upper age limit for Assistant Engineers
(Civil/Mechanical/Electric) employed on contractual basis for a
period equivalent to the period worked on contract.
8


12. The said Rule 8(5) which was introduced by means of the 2022
Amendment Rules is relevant, and is therefore reproduced as under:
“ 8(5) Basis of Selection-
(i) The Selection for appointment to the posts of Assistant Engineers
(Civil/Mechanical/Electrical) in the basic category of Assistant
Engineers (Civil/Mechanical/electrical) cadre shall be made by the
Commission after calculating the marks obtained in the competitive
examination conducted by the Commission and the preference of
work done on the contract basis. The work experience of all
government/non-private (central government, panchayat, municipal
bodies etc.) offices/institutions under the State of Bihar shall be valid
for the preference of work done on contract basis. Candidates having
experience of working on the post of Assistant Engineer
(Civil/Mechanical/Electrical) on contract basis, who fulfil the
essential qualifications for the recruitment in this cadre, shall be given
preference in selection by giving additional marks according to sub-
rule (ii)of this Rule.
(ii) The merit list of the candidates shall be prepared on the following
basis:

Note – To calculate the weightage of the marks in the examination, the
percentage of marks obtained in the examination shall be multiplied
by 0.75.
9


(iii) Assistant Engineers (Civil/Mechanical/Electrical) already
employed on contract basis will be given relaxation in the upper age
limit for a period equivalent to the period worked on contract. For
above relaxation in upper age limit, work experience of all
government/non-private (central government, panchayat, municipal
bodies etc) officers/institutions under the State of Bihar shall be valid.
The period of working on contract basis shall be decided on the basis
of salary payment certificate issued by the controlling officer
concerned. For this, the period up to the cut-off date mentioned in the
advertisement published by the commission may be counted for work
experience.”
13. The appellants, who had already secured their place in the
provisional merit list pursuant to the 2019 Advertisements, prepared
in accordance with the 2019 Rules, filed CWJC No. 18302 of 2022
before the High Court praying as follows –
i. To issue an appropriate writ(s)/order(s)/direction(s) in the nature
of certiorari for quashing part of the notification bearing memo no.
5565(S) dated 09.11.2022 issued under the signature of
Additional Chief Secretary, Road Construction Department,
Government of Bihar to the extent it directs implementation of the
amendment to Rule 8(5) of the Bihar Engineering Service Class-II
Recruitment Rules, 2019 introduced vide this Notification
retrospectively from 06.03.2019 for grant of weightage and age
relaxation from this date.
ii. To issue an appropriate writ(s)/order(s)/direction(s) in the nature
of mandamus commanding the respondents to not implement the
notification bearing memo no. 5565(S) dated 09.11.2022 with
retrospective effect from 06.03.2019.
iii. To issue an appropriate writ(s)/order(s)/direction(s) in the nature
of mandamus commanding the respondents not to interfere with
the merit lists dated 15.06.2022 (against advertisement no.
01/2019), 22 06 2022 (against advertisement no. 03/2019 &
04/2019), 19.07.2022 (against advertisement no. 02/2019)
10


published by the Bihar Public Service Commission on the basis of
the Bihar Engineering Service Class-Il Recruitment (Amended)
Rules, 2022, introduced through the notification bearing no. memo
no. 5565(S) dated 09.11.2022.
iv. To issue an appropriate writ(s)/order(s)/direction(s) in the nature
of mandamus commanding the respondents to proceed with the
selection process against the merit list published on 15.06.2022,
22.06.2022 & 19.07.2022 by Bihar Public Service Commission
against the post of Assistant Engineer under different departments
of Government of Bihar.

v. To declare and hold that the notification bearing memo no. 5565(S)
dated 09.11.2022 cannot have retrospective operation with effect
from 06.03.2019, once the merit list has been published.
vi. To any other relief(s) that the petitioners are entitled to in the facts
and circumstances of the case.
14. The challenge presented by the appellants before the High Court
was that after initiation of the recruitment process, the 2022
Amendment Rules could not have been made applicable to the
ongoing recruitment process. The 2019 Rules, in pursuance of which
the recruitment process was initiated, did not contain any provision
for grant of weightage or age relaxation. As such, in the present
appeal, we are not concerned with the validity of Rule 8(5) or the 2022
Amendment Rules and the scope of our examination is limited to its
application to the ongoing recruitment process which had already
commenced under the 2019 Advertisements.
FINDINGS OF THE HIGH COURT
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15. The High Court, while dismissing the writ petition, 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 has not been changed and the appellants have
not been disqualified, no prejudice has been caused by retrospective
application of Rule 8(5) inserted by the 2022 Amendment Rules.
ARGUMENTS ADVANCED BY THE APPELLANTS
16. Learned senior advocate Mr. Vijay Kumar, appearing for the
appellants, vehemently argued that the selection process must be
governed by the rules and stipulations as existing on the date of the
advertisement. It is submitted that the 2019 Rules, as they stood
when the 2019 Advertisements were issued, prescribed selection
solely on the basis of the written examination, without any weightage
or age relaxation for contractual experience.
12


17. It is argued that the appellants participated in the process,
qualified the written examination, appeared for document
verification, and have thereby acquired a vested right to be
considered for appointment as per the original criteria. The insertion
of Rule 8(5) vide the 2022 Amendment Rules dated 09.11.2022 and
applying the same retrospectively, essentially alters the merit list by
introducing new marks requirement for a specific class of candidates
i.e., candidates who have previously worked as contractual
employees with the government, after the process had reached its fag
end and document verification was already done.
18. Heavy reliance was placed on the principle of law that the rules
. Reference
of the game cannot be changed once the game has begun
was made to the decisions of this Court in K. Manjusree v. State of
1
Andhra Pradesh & Anr. and Tej Prakash and Others v.
2
Rajasthan High Court and Others arguing that the introduction
of new eligibility criteria for selection once the process has started is
impermissible.

1
(2008) 3 SCC 512.
2
(2025) 2 SCC 1.
13


19. It was further urged that the retrospective application is
arbitrary and violative of Articles 14 and 16 of the Constitution of
India. By applying the amendment retrospectively from 06.03.2019,
the State has sought to reopen a concluded selection process to the
detriment of meritorious candidates who had already been selected
after passing the written examination and in whose favour rights had
accrued.
ARGUMENTS ADVANCED BY RESPONDENT
20. Per contra, learned Additional Standing Counsel for the State,
Mr. Anshul Narayan submitted that the amendment was a policy
decision taken to give due recognition to the services of contractual
employees who had served in the State for long periods. It was argued
that the amendment was in consonance with the General
Administration 2021 Memo, which envisaged weightage for
contractual employees in the process of appointment for regular
employment.
21. It was contended that the merit list published during June-
July 2022 was merely provisional and did not confer an indefeasible
right to appointment. The government possesses the competence to
14


frame and amend rules under Article 309 of the Constitution of India
and the proviso thereto, and such power includes the power to amend
rules retrospectively to rectify anomalies or implement policy
decisions. It was further argued that no prejudice has been caused
to the appellants as the recruitment process had not attained finality
since appointment letters had not yet been issued. The amendment
merely added a weightage component to ensure equity for contractual
employees who had served the Government and did not disqualify the
appellants.
ANALYSIS OF RULES AND REASONINGS
22. After hearing learned counsels at length and on perusal of the
material on record, in our view, the short question that falls for our
consideration is whether the 2022 Amendment Rules can be made
applicable to the 2019 Advertisements after the written examination
has been conducted and the provisional merit list has been published?’
23. It is not in dispute that the instant recruitment processes in
furtherance to the 2019 Advertisements were initiated, under the
2019 Rules governing the selection on the date of issuance of the
advertisements.
15


24. Bare perusal of Rules 8, 9, 12 and 13 of the 2019 Rules, the
scheme of the selection process becomes clear to all. Rule 8 is placed
in Part-II of the 2019 Rules titled ‘DIRECT RECRUITMENT’. It
prescribes the eligibility of the candidates who can be considered for
direct recruitment. It prescribes that the candidate should be of such
age as may be notified by the Governor and shall be of good conduct,
good health and not of unsound mind. It further prescribes that such
a candidate must be a Civil/Mechanical/Electrical Engineering
degree holder from any AICTE approved Indian university / institute
and provides that only regular courses of such universities
recognized by University Grant Commission and not distance
education courses are valid for this purpose. The candidate must be
an associate member of the Institution of Engineers and also must
have passed ‘A’ and ‘AA’ from any branch of Institution of Engineers
or an institution recognized by the Institution of Engineers. The note
appended with the said rule clarifies that persons who are in
government services in a temporary, officiating or probationary
capacity, shall also be eligible for direct recruitment under 2019
Rules. The 2019 Advertisements reproduced the eligibility criteria as
laid down in Rule 8 verbatim with no change.
16


25. Rules 9, 12 and 13 are placed in Part-III of the 2019 Rules titled
‘PROCEDURE FOR APPOINTMENT’. Rule 9 envisages that BPSC
shall declare vacancies to be filled by direct recruitment on the basis
of a competitive examination and will invite application from
candidates strictly as per Rules 5 and 6 that provide for method of
recruitment. It further mandates that the said examination will be
conducted as per syllabus prescribed by BPSC with prior approval of
State Government and if BPSC considers it necessary, a preliminary
examination can also be conducted as a screening test.

26. Rule 12 prescribes that suitability of a candidate for purpose of
the appointment has to be determined on basis of total marks
obtained in the written examination and not the marks obtained in
any particular subject or subjects. It also provides that BPSC may
specify relaxation in minimum qualifications for Scheduled Caste
and Scheduled Tribe candidates. Subsequently, as per Rule 13, the
names of the candidates along with their applications will be
numbered by BPSC on the basis of the marks obtained in the written
examination in order of merit and such list will be presented as
directed by the Governor.
17


27. Upon holistic analysis of the rules above, it is clear that the
suitability of the candidates for the purpose of appointment as per
the 2019 Rules has to be determined only as per marks obtained in
the written examination. This means that essentially the selection
process involves following three stages – (i) Application by the
candidate; (ii) Written Examination (including preliminary
examination, as the case may be); (iii) Preparation of the Merit List
on basis of total marks obtained in written examination. In this
background, the adverse effect of retrospective applicability of the
amendment brought into 2019 Rules as per the 2022 Amendment
Rules has to be adjudicated.
28. The 2022 Amendment Rules provide for age relaxation and
preference in selection to persons working on contractual basis on
the post of Assistant Engineer (Civil / Mechanical / Eletrical) in all
government and non-private (central government, panchayat,
municipal bodies) offices / institutions under State of Bihar. In the
‘Short title, extent and commencement’ of the 2022 Amendment
Rules, it is stated that ‘ it shall come into force from the date of coming
into force of the Bihar Engineering Services Class-II Recruitment Rules,
2019, i.e. 06.03.2019’ . As such, the 2022 Amendment Rules were
18


made applicable from the date of inception of the 2019 Rules. It is
relevant to observe that Rule 8(5) which is the subject matter of
dispute, is titled ‘Basis of selection’ and it has been included in
Section 8 – which lays down the eligibility criteria of candidates.
29. Upon a perusal of the unamended 2019 Rules and the 2019
Advertisements, it is luculent that the selection was to be based solely
on the marks obtained in the written examination. There was no
mention of weightage or age relaxation for contractual experience.
The appellants were informed about and competed in the recruitment
process on these terms, their selection as per the applicable 2019
Rules was going to be in terms of the marks obtained in the written
examination alone which they wrote and found place in the
provisional merit list. While things stood thus, the 2022 Amendment
Rules were issued, introducing additional marks and age relaxation.
30. The law regarding the sanctity of the recruitment process and
changes in the eligibility criteria and procedure after the initiation of
the recruitment process, is well-settled. In K. Manjusree (Supra) this
Court had held:
“27. The minimum marks were prescribed ... after the selection
process was completed ... This is clearly impermissible. The rules
19


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.”
31. The Constitution Bench of this Court in Tej Prakash Pathak
(Supra) gave a nod of approval to the principles as laid down in K.
Manjushree (Supra) and held that even if the relevant rules permit
the competent authority to set benchmarks at different stages of a
recruitment process, the same must be done at any time before the
relevant stage is reached.
“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.
53. 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 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. ”
20


32. The Constitution Bench in Tej Prakash Pathak (Supra)
concluded and answered the reference as follows:
“ Conclusions
65. We, therefore, answer the reference in the following terms:
65.1. Recruitment process commences from the issuance of the
advertisement calling for applications and ends with filling up of
vacancies;
65.2. 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;
65.3. The decision in K. Manjusree [K. Manjusree v. State of A.P.,
(2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] lays down good law
and is not in conflict with the decision in Subash Chander
Marwaha [State of Haryana v. Subash Chander Marwaha, (1974)
3 SCC 220 : 1973 SCC (L&S) 488] . Subash Chander
Marwaha [State of Haryana v. Subash Chander Marwaha, (1974)
3 SCC 220 : 1973 SCC (L&S) 488] deals with the right to be
appointed from the select list whereas K. Manjusree [K.
Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S)
841] deals with the right to be placed in the select list. The two
cases therefore deal with altogether different issues;
65.4. 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;
65.5. Extant Rules having statutory force are binding on the
recruiting body both in terms of procedure and eligibility. However,
21


where the rules are non-existent, or silent, administrative
instructions may fill in the gaps;
65.6. 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.”
33. The principles laid down by the Constitution Bench in Tej
Prakash Pathak (Supra) were applied in the case of Partha Das v.
3
State of Tripura , in a judgment where one of us, J.K. Maheshwari,
J., 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.

3
2025 SCC OnLine SC 1844.
22


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.
49. This Court in Tej Prakash Pathak (Supra) has affirmed the
9
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:—

53. The decision in K. Manjusree [K.
Manjusree v. State of A.P., (2008) 3 SCC
23

50. In the present case, not only benchmarks are being set after
the game has been played, rather the State has decided that a
portion of the game itself, the step of interview, should not have
been played at all. As discussed above, 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.”
34. In the present case, the "game" had not only commenced but
was at its fag end. The written examinations were held in March
2022. 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.
35. 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
24


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.
36. 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
found 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.
25


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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40. It is trite law that participation in a recruitment process or mere
placement on the merit list does not create an indefeasible right to
appointment, which was settled by this Court in Shankarsan Dash
4
v. Union of India and followed in a multitude of decisions. However,
changing the eligibility criteria for placement in the merit list, after
conclusion of the written examination for that purpose, contrary to
the extant rules prevalent at the time of the advertisement, cannot
be justified on this basis. In the present case, if the additional marks
and age relaxation as envisaged under the 2022 Amendment Rules
is permitted, it will result in recasting of the provisional merit list
pursuant to the 2019 Advertisements. Such a decision to do away
with the merit list must be reasonable and non-arbitrary. Learned
counsel for the Respondent - State has contended that the decision
to grant additional marks and age relaxation to the contractual
Assistant Engineers is a decision taken in larger public interest, and
in order to reward the experience of people serving the State in
contractual posts. Be that as it may, while this may be a justification
advanced by the State for introducing the 2022 Amendment Rules, it
would not justify the application of the 2022 Amendment Rules to

4
(1991) 3 SCC 47.
27


the 2019 Advertisements and the recruitment process pursuant
thereto. After the examination has been conducted, no public
purpose can be served by changing the criteria for selection at this
stage.
41. Therefore, in the facts of this case, 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.
42. In view of the discussions made above, 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.
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43. In view of the above, 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
29


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.
46. Pending application(s), if any, shall stand disposed of. There
shall be no order as to costs.
SPECIAL LEAVE PETITION (C) NO. 8231 OF 2025
1. The present Special Leave Petition has been filed assailing the
interim order dated 13.02.2025 passed in CWJC No. 18429 of 2025
by the High Court of Judicature at Patna, wherein the writ petition
filed by the petitioners herein was adjourned sine die . The relevant
portion of the said order of High Court dated 13.02.2025 is
reproduced for ready reference –
“4. The issue was debated before this Court in SWJC No. 18302 of
2022, titled as Abhay Kumar Patel & Ors. vs. The State of Bihar
& Ors., wherein a Division Bench of this Court vide judgment date
05.07.2023 upheld the validity of the amendment as also the
formulae evolved for bringing and collating the marks to the scale of
100. Such formulae was necessarily to be fixed for the reason that 25
marks in maximum was to be given as weightage which is to be
calculated on the basis of five marks for one particular year of having
served on temporary basis.
5. The afore-noted judgment is under challenge before the Supreme
Court vide S.L.P. No. 22323/2023.
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6. The contention of the petitioners here is that not only the
introduction of the principle of weightage is incorrect and is against
the overwhelming number of decisions by different courts but even the
formulae for calculating the marks on scale of 100 is unfortunately
rendering anomolous (sic) results.
7. We are afraid, such objections cannot be raised at this stage when
a judgment by the Division Bench of this Court has upheld not only
the amendment in the Rules of 2019 but even the formulae developed
for calculating the marks on scale of 100.
8. The issue raised cannot be decided now presently as the matter is
pending consideration before the Supreme Court.
9. Let this case be listed after the disposal of the afore-noted S.L.P.
No. 22323/2023.”
2. The Writ Petition was filed by the Petitioners challenging the
validity of the 2022 Amendment Rules, particularly the insertion of
Rule 8(5) thereof and the formulae for distribution of marks
prescribed therein.
3. Since we have decided Civil Appeal arising out of SLP (Civil) No.
22323 of 2023 by a judgment pronounced today, where the scope of
our examination is limited to the applicability of the 2022
Amendment Rules to the 2019 Advertisements, it would be
appropriate to request the High Court to decide CWJC No. 18429 of
2025 on merits. While doing so, we make it clear that we have not
examined the challenge to the vires of Rule 8(5) itself or the 2022
Amendment Rules in the Civil Appeal arising out of SLP (Civil) No. 22323
31


of 2023 and views expressed therein shall not prejudice the case of
either parties and all contentions shall be kept open.

4. In light of the above, this special leave petition is disposed of
with a direction that the High Court shall adjudicate CWJC No.
18429 of 2025.
5. Pending applications, if any, shall be disposed of.


…….…………….…………J.
(J.K. MAHESHWARI)

…….…………….…………J.
(VIJAY BISHNOI)
NEW DELHI;
JANUARY 6, 2026.


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