ii. The preparation of the final merit list solely on the basis of
interview marks amounts to an impermissible alteration of the
selection process after commencement of recruitment, thereby
violating settled principles governing public employment.
22. Per contra, learned counsel appearing for the Respondents has
submitted as follows:
iii.
The written examination conducted pursuant to Recruitment
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Advertisement No.02/2012 was intended only for shortlisting
purposes and not for preparation of the final merit list.
iv. The administrative decision, having been taken pursuant to
judicial directions and policy considerations, did not warrant
interference under Articles 226 and 227 of the Constitution of India,
particularly when the selection process stood concluded and
appointments had already been made.
23. Learned counsel appearing for Private Respondent Nos.25, 28
to 36 and 40 has further submitted as follows:
i. No eligibility condition was altered nor was any candidate
excluded from participation. Hence, the "rules of the game" were not
changed midstream. Reliance is placed on State of Uttar Pradesh v.
Karunesh Kumar & Ors.1
ii. The selection procedure was necessitated by peculiar
circumstances, as Advertisement No.02/2012 (Post Code 14/12)
pertained to vacancies traceable to an earlier recruitment process
initiated in 1991.
iii. This Court, in Cont. Cas(C) No.863/2014 vide order dated
02.03.2015, acknowledged the difficulty in applying different
selection methodologies within the same recruitment and observed
that preparation of a combined merit list based on distinct procedures
would not be feasible.
iv. The uniform interview-based selection was adopted after
AIR 2023 SC 52
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approval of the Lieutenant Governor and after apprising this Court,
and thus cannot be termed arbitrary.
v. The Petitioners, having participated in the process without
demur and challenged it only upon being unsuccessful, are estopped
from assailing the selection, in terms of Madan Lal v. State of J&K2;
K.H. Siraj v. High Court of Kerala3; and Om Prakash Shukla v.
Akhilesh Kumar Shukla4.
24. No other submissions were advanced by learned counsel for the
parties.
ANALYSIS AND FINDINGS:
25. We have carefully considered the rival submissions advanced
by the parties, examined the material placed on record, and scrutinised
the Impugned Orders passed by the Tribunal in the light of the
governing recruitment conditions as well as the settled principles
regulating judicial review in matters of public employment.
26. The principal grievance of the Petitioners is that although
Recruitment Advertisement No.02/2012, read with the corrigendum
dated 11.07.2013, prescribed assignment of weightage to academic
qualifications, experience and interview, the Respondents ultimately
prepared the final merit list solely on the basis of interview marks,
thereby allegedly altering the "rules of the game" after
commencement of the selection process.
(1995) 3 SCC 486
(2006) 6 SCC 395
(1986) Supp SCC 285
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27. There can be no dispute with the proposition that recruitment
authorities are ordinarily bound by the procedure notified in the
advertisement and that midstream changes affecting fairness of
competition are impermissible. The doctrine that the rules of the game
cannot be changed after commencement of selection is a well-
recognised facet of Articles 14 and 16 of the Constitution. However,
the application of the said doctrine is not mechanical and must
necessarily depend upon the nature of the change introduced, the
surrounding circumstances compelling such decision, and whether the
alteration results in exclusion or disqualification of candidates who
were otherwise eligible to compete.
28. In this backdrop, it is considered that the recruitment in
question cannot be viewed in isolation from the prolonged litigation
history arising from the earlier recruitment exercise initiated in the
year 1991 by the Delhi Water Supply and Sewage Disposal
Undertaking (now known as the DJB), wherein departmental
candidates were invited for appointment to the post of JE (E&M)
through a process of interview.
29. Subsequently, the mode of recruitment was altered to promotion
by the user department, thereby leading to the filing of W.P.(C)
No.4930/1993 before this Court, which was later transferred to the
Tribunal and renumbered as T.A. No.987/2009. The Tribunal disposed
of the said T.A. vide order dated 13.11.2009, issuing, inter alia, the
following directions:
"The RR clearly stipulates that percentage of the vacancies to
be filled up in the following manner (1) 10% by promotion
failing which by direct recruitment and (2) 90% by direct
recruitment. In the relevant year in this case being 1992 and
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vacancies there available being 40, it is determined that 4 posts
JE (M/E) are to be filled up by promotion and 36 posts by direct
recruitment. In that year, if 4 vacancies were not filled up by
promotion since eligible feeder category employees were not
available, those 4 posts are to be filled up by direct recruitment.
The next issue is procedure to be adopted for direct recruitment.
The respondents are competent to engage DSSSB for any other
agency admissible for the direct recruitment purpose. Whatever
was the direct recruitment practice (Interview or written test +
interview) in the relevant year must be followed to fill up those
vacancies.) The exercise shall be completed within 3 months
from the date of this order. It is needless to mention that those of
the applicants who get selected and appointed in the post of JE
(M/E) will be positioned from appropriate year notionally with
no arrears of pay accruing to them. We also direct that those
Work Assistants who were promoted to the direct recruitment
quota of JE(M/E) are to be vacate such posts.
Those of the applicants who have applied for the post of
JE(M/E) then direct recruitment quota are eligible for the age
relaxation as already ordered by the Hon'ble Court of Delhi."
(Emphasis supplied.)
30. Thereafter, O.A. No.4271/2011 was filed before the Tribunal,
which came to be disposed of on 27.04.2012 with a direction to the
Delhi Subordinate Services Selection Board [hereinafter referred to as
„DSSSB‟] to issue an advertisement on or before 30.05.2012 and to
undertake scrutiny of applications of departmental candidates. The
entire exercise was directed to be completed within three months from
the date of receipt of a copy of the order.
31. Thereafter, certain applicants filed W.P.(C) No.4239/2013
before this Court contending that having applied pursuant to the
recruitment process initiated in the year 1991, they were not required
to submit fresh applications under the Recruitment Notice dated
15.05.2012 and that their earlier applications ought to be considered.
In the said writ petition, the Court issued positive directions requiring
completion of the process through interview-based evaluation. The
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same was disposed of on 07.10.2013 with the following directions:
"11. It is seen that in the year 1991 when the petitioners had
submitted their applications the notification was issued by Delhi
Water Supply and Sewage Disposal Undertaking whose
successor in interest is Delhi Jal Board. Surely 22 years have
gone by and it would not be possible for the successor
organization Delhi Jal Board to trace out the applications so
submitted by the petitioners.
12. It is a case where petitioners have been agitating since very
long. They should not be dislodged only on the ground that they
have not applied pursuant to the advertisement dated May 18,
2012. They have orders passed on April 06, 1995, November 13,
2009 and April 27, 2011 in their favour. Moreover in view of the
stand taken by the counsel for the parties, we dispose of the writ
petition in terms of the following directions:-
a) The petitioners shall submit their applications
pursuant to the advertisement in Employment News on
May 18, 2012 by October 31, 2013.
b) The Delhi Jal Board, on receipt of the applications
from the petitioners forward the same to the DSSSB
within a period of two weeks.
c) The DSSSB would consider the candidature of the
petitioners in terms of the process of interview only as
has been directed by the Tribunal in its order dated
November 13, 2009 while disposing of
T.A.No.987/2009.
13. We make it clear that we have only decided issue arising
from the order dated April 30, 2013 in C.P.No.769/2012 in
Original Application No.4277/2011."
(Emphasis supplied.)
32. Thereafter, DSSSB, in its meeting held on 02.04.2014,
deliberated upon the mode of selection and recorded the following
decision:
"As per New Examination Scheme of the Board the selection of
the candidates for the said post shall be made on the basis of Two
Tier Examination while Hon'ble High Court has ordered that
the selection of departmental candidates should be made on the
basis of interview only. It was observed that it is not possible to
make the merit list on the basis of two different mode of
selection i.e. written examination for general candidates and
interview for departmental candidate. To have a different
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selection process for the departmental candidates, the number
of posts needs to be earmarked for them. Thereafter, it was
decided that the DJB may be requested to identify number of
vacancies out of the total number of vacancies (Total-39) which
could be filled by departmental candidates and to clarify the
reason for forwarding the applications of non-petitioners and the
applications received after 31.10.13."
(Emphasis supplied.)
33. In response, DJB informed DSSSB that the requisition had been
forwarded for filling up posts of JE (E&M) under the direct
recruitment quota and that no direction had been issued by the High
Court requiring identification or earmarking of vacancies specifically
for departmental candidates.
34. Pursuant to the Recruitment Advertisement dated 15.05.2012, a
total of 7047 applications were received. The matter was thereafter
placed before the Services Department, GNCTD, seeking advice
regarding the appropriate method of selection. The Services
Department opined that relaxation from the existing approved scheme
of two-tier examination could be sought in the peculiar facts of the
case and approval of the Lieutenant Governor could be obtained for
adopting a selection process based on interview, in compliance with
the orders of this Court.
35. Consequently, a proposal was submitted for approval of the
Lieutenant Governor, placing on record, inter alia, the following:
"a) Candidates numbering 7047 who applied in response to
our advertisement no in the year 2012 will be screened through
a written exam and approximate no. of candidates 6 times of the
total vacancies will be called for the interview.
b) All the departmental candidates who have their
application up to 31.10.2013 will also be called for interview.
c) A combined merit list of both sets of candidates will be
made on the basis of interview only."
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36. The Respondents further apprised this Court that approval of
the Lieutenant Governor had been obtained to suitably modify the
examination scheme so that all candidates could be evaluated
uniformly, and that a combined merit list would be prepared on the
basis of interview performance alone after screening through a written
test for shortlisting purposes.
37. Pursuant thereto, a revised examination scheme dated
27.11.2014 was notified, providing for a written screening test solely
for the purpose of shortlisting, to be followed by an interview for all
eligible candidates, including departmental candidates. Through the
said notification, DSSSB also informed the candidates that all earlier
notifications stood superseded. Notably, the Petitioners did not raise
any objection to the revised scheme of selection at the stage when the
Screening Test was conducted.
38. The record thus demonstrates that the selection was not founded
exclusively upon interview. In the peculiar facts and prevailing
circumstances, a conscious decision was taken to conduct a written
screening test for the limited purpose of shortlisting candidates
equivalent to six times the number of notified vacancies, who were
thereafter called for interview. Consequently, the contention advanced
on behalf of the Petitioners that the entire selection process rested
solely on interview does not merit acceptance.
39. Pertinently, the aforesaid judgment of this Court in W.P.(C)
No.4239/2013 attained finality and was binding upon the
Respondents. Moreover, the requirement of interview-based
consideration was again brought to the notice of this Court in
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contempt proceedings.
40. The later proceedings in Cont. Cas(C) No.863/2014 culminated
in order dated 02.03.2015, wherein the Respondents placed on record
a detailed Counter-affidavit explaining the practical difficulties
involved in conducting recruitment through two distinct evaluation
methodologies for the same set of vacancies.
41. The Counter-affidavit disclosed that two categories of
candidates existed, one comprising thousands of candidates who had
applied pursuant to Recruitment Advertisement No.02/2012 and
another consisting of departmental candidates whose cases were
governed by earlier judicial directions mandating interview-based
assessment. It was specifically stated before this Court that
preparation of a combined merit list on the basis of two different
procedures would not be feasible.
42. After taking note of these averments, this Court declined to
issue any further directions and disposed of the contempt proceedings.
The order dated 02.03.2015, thus clearly demonstrates that the
modified selection methodology was not adopted unilaterally or
surreptitiously, but was evolved after placing the entire factual
position before this Court.
43. In the considered view of this Court, the selection process was,
therefore, conducted in a manner which was transparent, judicially
disclosed, administratively approved, and intended to harmonise
compliance with earlier binding directions while ensuring uniformity
amongst competing candidates.
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44. Once the Respondents had apprised this Court of the proposed
course of action and the proceedings were disposed of without adverse
observation, the decision to adopt interview as the common criterion
cannot subsequently be characterised as arbitrary or mala fide. Judicial
review cannot proceed on the assumption that the employer acted
dehors judicial scrutiny when, in fact, the process stood shaped under
the gaze of this Court itself.
45. Accordingly, it becomes evident that, in the peculiar factual
matrix obtaining herein, the Respondents adopted a course of action
which was fair, reasonable and transparent, evolved only after duly
apprising this Court of the practical and legal complexities arising
from the coexistence of two categories of candidates governed by
differing judicial directions. The modified methodology was neither
arbitrary nor unilateral but represented a conscious attempt to
harmonise compliance with binding judicial orders, maintain uniform
standards of assessment, and ensure equal treatment to all
participating candidates. No material has been placed before this
Court demonstrating mala fides, procedural illegality or discrimination
warranting exercise of writ jurisdiction.
46. Equally, this Court cannot lose sight of the fact that the
recruitment process traces its origin to the year 1991 and ultimately
culminated in appointments made in the year 2015, pursuant to a
selection process conducted openly and under judicial scrutiny. The
selected candidates have since served for more than a decade and
continuation of litigation at this stage would neither advance fairness
nor serve the larger interest of finality in public employment.
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47. On the contrary, reopening a settled recruitment would
perpetuate uncertainty and defeat institutional stability. The approach
adopted by the Respondents, therefore, represents a balanced and
equitable resolution intended to bring long-pending litigation to a
close rather than prolong it, and no justification exists for unsettling
the completed process.
48. Further, the reliance placed by the Petitioners upon the principle
that the "rules of the game" stood altered requires closer examination
in light of the decision of the Supreme Court in Karunesh Kumar
(supra). The Supreme Court has clarified that the doctrine primarily
operates where a change introduced after commencement of
recruitment results in disqualifying candidates or altering eligibility
conditions so as to non-suit participants from consideration.
49. In the present case, no eligibility criterion was modified, no
candidate was rendered ineligible, excluded from participation, or
deprived of an opportunity to compete. All candidates, including the
Petitioners, participated, firstly in the screening test/written
examination, and thereafter in the same interview-based evaluation.
The alteration, therefore, related only to the mode of assessment and
not to qualification or eligibility.
50. Recruiting authorities must necessarily retain a degree of
administrative flexibility to evolve an appropriate selection
mechanism, particularly where compliance with prior judicial
directions and maintenance of uniform standards become imperative.
As observed by the Supreme Court in Karunesh Kumar (supra), an
overly rigid application of the doctrine would unnecessarily curtail the
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employer‟s power to select suitable candidates.
51. We are therefore unable to hold that adoption of the present
recruitment process for deciding the final select list, in the peculiar
factual matrix obtaining herein, constitutes an impermissible alteration
vitiating the entire recruitment process.
52. The Petitioners have emphasised that the Tribunal itself
recorded inconsistency between the prescribed procedure and the
method adopted. In our view, such observation cannot be read in
isolation. The Tribunal proceeded to examine whether the deviation
stood justified in light of prior judicial directions and administrative
necessity, ultimately concluding that interference would unsettle a
completed selection undertaken uniformly for all candidates.
53. Judicial review in service matters is concerned not with
substitution of administrative wisdom but with examination of
arbitrariness, mala fides or violation of statutory mandate. The
Petitioners have neither alleged nor established mala fides, selective
treatment, or discrimination inter se candidates.
54. Equally significant is the fact that the Petitioners participated in
the selection process without protest and subjected themselves to the
interview-based assessment. Only upon being declared unsuccessful
did the challenge come to be mounted. The Supreme Court in Madan
Lal (supra) has unequivocally held that a candidate who takes a
calculated chance by participating in a selection process cannot
subsequently assail the procedure merely because the outcome is
unfavourable. Similar principles have been reiterated in K.H. Siraj
(supra) and Om Prakash Shukla (supra).
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55. The contention of the Petitioners that they became aware of the
deviation only after declaration of results is not factually correct,
inasmuch as the Notification dated 27.11.2014 notifying the procedure
to be adopted was issued one month prior to the conduct of the
screening test. The interviews constituted the decisive stage of
evaluation and the Petitioners consciously participated therein without
raising any contemporaneous objection. Significantly, no prejudice
has been demonstrated to have been caused to the Petitioners on
account of the adoption of the said procedure. In the absence of any
such prejudice or demonstrable arbitrariness affecting the outcome of
the selection, the challenge cannot be sustained.
56. We also find merit in the submission of the Private Respondents
that preparation of a combined merit list through differing evaluation
standards would itself have generated inequality amongst candidates.
The decision to adopt a uniform criterion, approved at the highest
administrative level and placed before the Court in earlier
proceedings, cannot be characterised as arbitrary in the present case.
57. Interference at this stage would not merely unsettle a concluded
recruitment but would also adversely affect appointments made long
ago pursuant to a process conducted uniformly for all candidates.
Courts exercising jurisdiction under Articles 226 and 227 must remain
mindful of the principle of institutional stability in public
administration.
CONCLUSION:
58. Having evaluated the matter, this Court is satisfied that the
Tribunal correctly appreciated the peculiar factual circumstances,
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applied the governing legal principles, and declined interference for
cogent reasons. The Impugned Orders do not suffer from jurisdictional
error, perversity, or manifest illegality warranting interference in writ
jurisdiction.
59. Accordingly, we find no merit in the present Writ Petitions.
60. The present Writ Petitions are dismissed. Pending applications
stands closed.
ANIL KSHETARPAL, J.
AMIT MAHAJAN, J.
APRIL 08, 2026
sp/shah
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