The main issue is whether the eligibility criteria requiring AICTE approval for diplomas is valid, given the Supreme Court’s previous ruling that universities do not need AICTE approval for technical courses —The petitioners argued that the eligibility criteria were inconsistent with the Supreme Court’s ruling and that they were unfairly excluded from the recruitment process —The respondents contended that the recruitment process was conducted according to the existing rules and that the petitioners were bound by the doctrine of acquiescence —The Supreme Court directed the Bihar Technical Service Commission to prepare a fresh select list of meritorious candidates, considering the previous High Court order and the AICTE’s stance —The Court found that changing the eligibility criteria after the selection process was completed was impermissible and that the petitioners had a legitimate right to be considered — The appeals were disposed of with directions to prepare a revised select list within three months, ensuring that eligible candidates are considered fairly.

2024 INSC 763

SUPREME COURT OF INDIA

DIVISION BENCH

SHASHI BHUSHAN PRASAD SINGH — Appellant

Vs.

THE STATE OF BIHAR AND OTHERS — Respondent

( Before : Bela M. Trivedi and Satish Chandra Sharma, JJ. )

Civil Appeal No….of 2024 [Arising Out of SLP (Civil) No. 7257 of 2023] with Civil Appeal No….of 2024 [Arising Out of SLP (Civil) No. 8967 of 2023], Civil Appeal No…..of 2024 [Arising Out of SLP (Civil) No. 10359 of 2023], Civil Appeal No…….of 2024 [Arising Out of SLP (Civil) No. 18369 of 2023] and Civil Appeal No…….of 2024 [Arising out of SLP (Civil) No. 22215 of 2023]

Decided on : 04-10-2024

Bihar Water Resources Department Subordinate Engineering (Civil) Cadre Recruitment (Amendment) Rules 2017 — Rule 9(1)(ii) — The case involves the recruitment process for Junior Engineers in Bihar, where candidates with diplomas from private institutions were deemed ineligible due to lack of AICTE approval —The main issue is whether the eligibility criteria requiring AICTE approval for diplomas is valid, given the Supreme Court’s previous ruling that universities do not need AICTE approval for technical courses —The petitioners argued that the eligibility criteria were inconsistent with the Supreme Court’s ruling and that they were unfairly excluded from the recruitment process —The respondents contended that the recruitment process was conducted according to the existing rules and that the petitioners were bound by the doctrine of acquiescence —The Supreme Court directed the Bihar Technical Service Commission to prepare a fresh select list of meritorious candidates, considering the previous High Court order and the AICTE’s stance —The Court found that changing the eligibility criteria after the selection process was completed was impermissible and that the petitioners had a legitimate right to be considered — The appeals were disposed of with directions to prepare a revised select list within three months, ensuring that eligible candidates are considered fairly.

JUDGMENT

Satish Chandra Sharma, J. – Leave Granted.

2. The present batch of appeals arise out of judgement dated 16.02.2023, passed by the High Court of Judicature at Patna in Civil Writ Jurisdiction Case No. 3411/2022 (‘CWJC’) along with other connected matters (the ‘Impugned Order’), whereby the Writ Petitioners who were the unsuccessful candidates in the Recruitment Process conducted pursuant to the Advertisement dated 08.03.2019 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 07.11.2017, prescribing technical qualification eligibility for selection/appointment to the technical post in the State of Bihar. The appellants before this Court are the successful candidates in the said Recruitment Process.

3. The present matter begins with the issuance of Advertisement No. 01/2019 dated 08.03.2019 by the Bihar Technical Service Commission (‘BTSC’) inviting applications for 6,379 vacancies to the post of Junior Engineer across various state departments (the ‘Advertisement’). The Advertisement specified that the educational qualification required for the post of Junior Engineer (Civil) as under:

It is pertinent to note that this requirement is drawn from and is identical to Rule 9(1)(iii) of the Bihar Water Resources Department Subordinate Engineering (Civil) Cadre Recruitment Rules, 2015 (the ‘Rules’) as amended in 2017.

4. The private Respondents in the present appeal were the Writ Petitioners before the High Court. They were all applicants who possessed a Diploma from Private Universities/Institutions established by statute and approved by the University Grants Commission. Their applications were found ineligible by the BTSC on the ground that their institutions were not approved by the All-India Council of Technical Education (‘AICTE’). Aggrieved, they approached the High Court seeking the quashing of Rule 9(1)(iii) of the Rules as being inconsistent with other statutory provisions and judgement of the Apex Court in Bharathidasan University & Anr. vs. AICTE & Ors. 2001 (8) SCC 676 wherein, on an interpretation of the provisions of the All-India Council of Technical Education Act 1987, it was held that Universities are excluded from the purview of technical institutions and are thus not required to obtain approvals from the AICTE before introducing technical courses/programs.

5. The Writ Petitioners relied on public notice dated 09.02.2022 issued by the AICTE, to the VCs of all Central/State and Private Universities about AICTE approval for 2022-23, stating as follows:

6. It is relevant to note that the stand of the Writ Petitioners was reinforced by the AICTE before the High Court, as made explicit by their Counter Affidavit dated 12.05.2022, which read as under:

7. At this stage, it is apposite to observe that prior to the filing of CWJC No. 3411/2022, 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 02.05.2019 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.

8. Accordingly, on 02.04.2022, the BTSC published its selection list for the posts advertised under the Advertisement (‘Select List’) and the selected candidates were also allotted to specific departments. In compliance with the aforenoted interim orders, the Select List reproduced the directions given by the Court in order dated 06.12.2019 and explicitly stated that the Select List shall be affected in light of the final order in the pending proceedings.

9. Thereafter, in a separate analogous writ proceeding being CWJC No. 7312/2021, vide order dated 19.04.2022, Rule 4(A) of the Rules which granted 40% institutional reservation to diploma holders from State-run Polytechnic Institutes was found to be arbitrary and unreasonable. Consequently, Select list prepared in terms of Rule 4(A) was set aside and the BTSC was directed to prepare a fresh select list granting 40% institutional reservation to diploma holders from any polytechnic institute, recognized by the AICTE and affiliated with the State Board of Technical Institutions, Bihar and located within the State.

10. Following this, the BTSC proceeded to finalise the merit list under the Advertisement but were directed by the High Court vide order 01.12.2022 in CWJC No. 7761/2022 to withhold the declaration of results until leave is granted by the Court. A list was prepared on 19.12.2022, put under sealed cover and permission of the Court was sought by filing an interlocutory application in CWJC No. 7761/2022 (the ‘Final Select List’). The hearing of the application was adjourned after the Advocate General informed the Court that the State Government was contemplating a review of the entire process.

11. On 25.01.2023, the Govt. of Bihar convened a high-level meeting of Secretaries from different works departments to consider the legal issues emerging from the numerous pending litigations against the Rules and the Advertisement and the consequent 4-year delay in appointments. A decision was taken inter alia to cancel the appointment process under the Advertisement and to initiate approval for the amended Rules.

12. Once the decision dated 25.01.2023 was brought on record before the High Court, the State Govt. was permitted to implement its decisions dated 25.01.2023 and the Court concluded that nothing remained in the matter. Accordingly, CWJC No. 3411/2022 and all other analogous writs were disposed of in the following manner:

13. Learned Senior Counsels for the Appellants, Mr. Rajeev Dhavan, Mr. Ranjit Kumar and Ms. Meenakshi Arora urged before this Court that at the outset, 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. Reliance is placed on Punjab National Bank vs. Anit Kumar Das (2021) 12 SCC 80 and The Chairman SBI & Anr. vs. M.J. James (2022) 2 SCC 301.

14. The learned counsels for the Appellants also contended 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. Reliance is placed on K. Manjusree vs. State of Andhra Pradesh & Anr. (2008) 3 SCC 512. It is argued that 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.

15. They further 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.16. Learned Counsel for the Private Respondents i.e., the Writ Petitioners before the High Court also contended that the cancellation of the entire selection process, at such a tardy stage would seriously impact their interests. They argue that as per the stand of the AICTE before the High Court, their applications were eligible and should thus be reconsidered along with the applications of the Appellants.

17. Learned Senior Counsel for the State, Mr. Patwalia vehemently contends that the State was well within its domain to scrap the selection process considering the numerous legal issues that cropped up concerning the previously applicable Rules. It is brought to the notice of this Court that in furtherance of its decisions, as approved by the Impugned Order, the Govt. of Bihar has repealed the existing Rules and notified the Bihar Subordinate Engineering (Civil/Mechanical/Electrical) Cadre Rules, 2023 (the ‘New Rules’) vide Notification No. 1174 dated 07.03.2023. In compliance with the directions of the High Court, appropriate provisions for the grant of one-time age relaxations have also been made under Rule 8(2) of the New Rules. Further, the BTSC has cancelled the Advertisement vide notice dated 10.04.2023 and fresh requisitions have been sent by the Water Resources Department to the BTSC vide letter dated 21.03.2023 for selection against 2252 vacant posts for Junior Engineers in that department.

18. Mr. Patwalia further contends that the completion of the selection process under the Advertisement, resulting in the Select List and in the Final Select List was consistently carried out with the rider that the appointments would be subject to the outcome of the pending litigation. He argues that while the Select List was partially set aside by the High Court vide order dated 19.04.2022, the Final Select List was neither considered by the High Court nor published, and therefore, no right to appointment vests with the Appellants, making any claim to equity untenable.

19. At this stage, it is pertinent to note that while issuing notice, this Court vide order dated 24.04.2023 directed the maintenance of status quo which has persisted till date. As per the most recent status report by the State, nearly 9,187 posts of Junior Engineers remain vacant, drastically affecting the day-to-day functioning of the State. As retirements are ongoing, the working strength is continuously decreasing and is currently at 11.7%. In recognition of the peculiar facts and circumstances of this case, Mr. Patwalia has fairly stated before this Court that the State will abide by any appropriate direction given by the Court.

20. We have heard Learned Counsel for the parties and perused the record.

21. As evidenced above, the present case has a chequered history. Before the Advertisement was released, an amendment was brought to the Rules in 2017, more particularly to Rule 9, which restricted the eligibility criteria only to those candidates who possessed a Diploma from an institute approved by the AICTE. This amendment was prima facie contrary to the decision of this Court in Bharathidasan University (supra) which is solidified by the stand of the AICTE before this Court and their public notice dated 19.02.2022. However, despite this infraction, the Advertisement contained the same restriction, arbitrarily disqualifying persons like the Writ Petitioners from the selection process.

22. Thereafter, the first Select List that was prepared was partly set aside vide order dated 19.04.2022 in CWJC No. 7312/2021 and the BTSC was directed to prepare a fresh Select List as under:

23. Consequently, the Select List prepared on 02.04.2022 was impliedly set aside and a Final Select List was prepared by the BTSC in compliance with order dated 19.04.2022 but the same was not released as ordered by the Patna High Court vide order dated 01.12.2022 in another analogous writ proceeding being CWJC No. 7761/2022 as under:

24. It is pertinent to note that the order dated 19.04.2022 passed in CWJC No. 7312 of 2021 does not appear to have been challenged further and has attained finality. It is stated by the BTSC that the Final Select List was prepared and kept under sealed cover. While an application seeking release of the list was pending before the High Court, the Writ Petition was withdrawn.

25. 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.

26. 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.

27. 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.

28. In this regard, the field is held by the three-judge bench decision of this Court in K. Manjusree (supra) 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. Relevant portions of the judgement are reproduced as under:

29. Therefore, in light of the aforenoted position, 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. Hence, the Fresh Select List must be appropriately revised in the following manner:

30. Accordingly, the present appeals are disposed of with the aforenoted directions.