Supreme Court of India
ABHAY KUMAR PATEL & ORS.versusSTATE OF BIHAR & ORS.
- Citation
- 2026 INSC 24
- Decided
- 6 January 2026
- Bench
- K MAHESHWARI
Holding
The amendment introducing Rule 8(5) cannot be applied retrospectively to the 2019 recruitment process; the selection must be completed under the original 2019 Rules.
Summary
The Bihar Road Construction Department issued recruitment advertisements in 2019 for Assistant Engineer posts under the Bihar Engineering Services Class‑II Recruitment Rules, 2019. The written examinations were held in March 2022 and provisional merit lists were published in June‑July 2022. After the merit lists were issued, the State issued the Bihar Engineering Service Class‑II Recruitment (Amendment) Rules, 2022, inserting Rule 8(5) which gave up to 25 marks and age relaxation for candidates with prior contractual experience, with retrospective effect from 6 March 2019. The appellants, whose names appeared in the provisional merit lists, challenged the retrospective application of the amendment, arguing that it altered the eligibility criteria after the selection process had begun, violating Article 309, the rule of law and their vested rights. The Supreme Court held that the amendment could not be applied to a recruitment process already underway, emphasizing the principle that the “rules of the game” cannot be changed once the game has started and that retrospective legislation cannot defeat vested rights or breach Articles 14 and 16. Consequently, the Court set aside the High Court’s order and directed that appointments be made strictly according to the unamended 2019 Rules. The appeal was allowed.
Issues considered
- Whether the Bihar Engineering Service Class‑II Recruitment (Amendment) Rules, 2022 can be applied retrospectively to the recruitment process initiated under the 2019 Rules after the written examination and provisional merit list were published.
- Whether such retrospective amendment violates the power under Article 309 of the Constitution and the principles of equality under Articles 14 and 16, and infringes on vested rights of candidates.
Legislation cited
- Bihar Engineering Service Class‑II Recruitment (Amendment) Rules, 2022s. Rule 8(5)
- Bihar Engineering Services Class‑II Recruitment Rules, 2019s. Rule 12, s. Rule 13, s. Rule 8, s. Rule 9
- Constitution of Indias. Art.14, s. Art.16, s. Art.309
Headnote
Issue for Consideration Whether the Bihar Engineering Service Class-II Recruitment (Amendment) Rules, 2022 can be made applicable to the 2019 Advertisements after the written examination has been conducted and the provisional merit list has been published. Headnotes† Service Law Bihar Engineering Services Class - II Recruitment Rules, 2019 – 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, specifically the introduction of r.8(5), whereby
Subjects
Retrospective effectRules of the gamePower to amend rulesRetrospective legislationEx post factoWritten examinationProvisional merit listPrior contractual work experienceSelection processRewriting the rules of the gameEligibility criteriaAlteration in the basis of selectionAdditional marks for contractual service
Judgment
[2026] 2 S.C.R. 62 : 2026 INSC 24
Abhay Kumar Patel & Ors.
v.
State of Bihar & Ors.
(Civil Appeal No. 54 of 2026)
06 January 2026
[J.K. Maheshwari* and Vijay Bishnoi, JJ.]
Issue for Consideration
Whether the Bihar Engineering Service Class-II Recruitment
(Amendment) Rules, 2022 can be made applicable to the 2019
Advertisements after the written examination has been conducted
and the provisional merit list has been published.
Headnotes†
Service Law – Appointment/Recruitment/Selection – Bihar
Engineering Services Class - II Recruitment Rules, 2019 – 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, specifically the
introduction of r.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 – The
appellants had preferred the writ petition challenging the
retrospective application of the Bihar Engineering Service
Class-II Recruitment (Amendment) Rules, 2022 – The High
Court dismissed the writ petition – Correctness:
Held: 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 – The issuance of
the 2022 Amendment Rules, introducing r.8(5) with retrospective
effect from 06.03.2019, attempts to rewrite the rules of the game
which has already begun – By reducing the 25 weightage of the
written examination to 75 marks and introducing 25 marks for
* Author
[2026] 2 S.C.R. 63
Abhay Kumar Patel & Ors. v. State of Bihar & Ors.
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 – While the State
undoubtedly has the power to amend rules under the proviso to
Art.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 – 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 – The retrospective application of
r.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 – 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 – The retrospective application of r.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 – Impugned judgment and order of the High Court is set
aside. [Paras 34-38, 41, 42, 44]
Case Law Cited
Tej Prakash and Others v. Rajasthan High Court and Others [2024]
12 SCR 28 : (2025) 2 SCC 1 – followed.
K. Manjusree v. State of Andhra Pradesh & Anr. [2008] 2 SCR
1025 : (2008) 3 SCC 512; Partha Das v. State of Tripura, 2025
SCC OnLine SC 1844; Shankarsan Dash v. Union of India [1991]
2 SCR 567 : (1991) 3 SCC 47 – referred to.
List of Acts
Constitution of India; Bihar Engineering Services Class-II
Recruitment Rules, 2019; Bihar Engineering Service Class-II
Recruitment (Amendment) Rules, 2022.
64 [2026] 2 S.C.R.
Supreme Court Reports
List of Keywords
Retrospective effect; Rules of the game; Power to amend rules;
Retrospective legislation; Ex post facto; Written examination;
Provisional merit list; Prior contractual work experience; Selection
process; Rewriting the rules of the game; Eligibility criteria; Alteration
in the basis of selection; Additional marks for contractual service.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 54 of 2026
From the Judgment and Order dated 05.07.2023 of the High Court
of Judicature at Patna in CWJC Nos. 18302 of 2022
With
Special Leave Petition (Civil) No. 8231 of 2025
Appearances for Parties
Advs. for the Appellant(s):
Vijay Kumar, Ms. Kaveeta Wadia, Sr. Advs., Manoj Kumar
Srivastava, Vivek Jain, Manoj Kashyap, Shashank Tripathi,
Ms. Chhavi Jain.
Advs. for the Respondent(s):
Anshul Narayan, Abhindra Maheshwari, Prem Prakash, Navin
Prakash, Smarhar Singh, Ms. Shweta Kumari, Pankaj Prakash,
Dhananjaya Kumar Tyagi, Mohd Asim, Manoj Kumar, Jai Krishna
Singh.
Judgment / Order of the Supreme Court
Judgment
J.K. Maheshwari, J.
Civil Appeal No. of 2026
1. Leave granted.
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.
[2026] 2 S.C.R. 65
Abhay Kumar Patel & Ors. v. State of Bihar & Ors.
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.
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) shall be of good health and not of unsound mind,
66 [2026] 2 S.C.R.
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(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.
[2026] 2 S.C.R. 67
Abhay Kumar Patel & Ors. v. State of Bihar & Ors.
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”) –
Advertisement Date of Nature of Post No. of Department
No. Advertisement Posts Concerned
01/2019 08.03.2019 Assistant 31 PWD
Engineer (Civil)
83 Minor Water
Resources
02/2019 08.03.2019 Assistant 33 PWD
Engineer
(Electrical)
68 [2026] 2 S.C.R.
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03/2019 13.09.2019 Assistant 18 Minor Water
Engineer Resource
(Civil)
04/2019 13.09.2019 Assistant 10 Minor Water
Engineer Resource
(Mechanical)
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:
Date of Publication of Corresponding Date fixed Corresponding
Provisional Merit List for Document Verification Advertisements
15.06.2022 30.06.2022 01/2019
01.07.2022
02.07.2022
22.06.2022 06.07.2022 03/2019
22.06.2022 06.07.2022 04/2019
13.07.2022 20.07.2022 01/2019
19.07.2022 29.07.2022 02/2019
23.07.2022 27.07.2022 01/2019
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
[2026] 2 S.C.R. 69
Abhay Kumar Patel & Ors. v. State of Bihar & Ors.
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 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 note that “to calculate the weightage
of the marks in the examination 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.
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/
70 [2026] 2 S.C.R.
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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:
Full Marks
(a) Weightage of mark obtained in the written 75 Marks
examination conducted by the commission
(b) Maximum weightage for the working 25 Marks
experience on contract basis - (The weightage
of per working year shall be 5 marks subject to
the maximum limit of 25 marks. For any fraction
of year of working experience, the proportionate
weightage, the marks shall be calculated by
multiplying the number of working days by 5 and
dividing it by 365)
Total - 100 Marks
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.
(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.”
[2026] 2 S.C.R. 71
Abhay Kumar Patel & Ors. v. State of Bihar & Ors.
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) 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.
72 [2026] 2 S.C.R.
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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
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.
[2026] 2 S.C.R. 73
Abhay Kumar Patel & Ors. v. State of Bihar & Ors.
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 of
the game cannot be changed once the game has begun. Reference
was made to the decisions of this Court in K. Manjusree v. State of
Andhra Pradesh & Anr.1 and Tej Prakash and Others v. Rajasthan
High Court and Others2 arguing that the introduction of new eligibility
criteria for selection once the process has started is impermissible.
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
1 (2008) 3 SCC 512.
2 (2025) 2 SCC 1.
74 [2026] 2 S.C.R.
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to 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.
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.
[2026] 2 S.C.R. 75
Abhay Kumar Patel & Ors. v. State of Bihar & Ors.
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.
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 made
applicable from the date of inception of the 2019 Rules. It is relevant
76 [2026] 2 S.C.R.
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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 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
[2026] 2 S.C.R. 77
Abhay Kumar Patel & Ors. v. State of Bihar & Ors.
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.”
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
78 [2026] 2 S.C.R.
Supreme Court Reports
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, 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. State of
Tripura,3 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
3 2025 SCC OnLine SC 1844.
[2026] 2 S.C.R. 79
Abhay Kumar Patel & Ors. v. State of Bihar & Ors.
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.
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 decision in K. Manjusree v. State of A.P.9, 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:—
“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
80 [2026] 2 S.C.R.
Supreme Court Reports
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.”
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.
[2026] 2 S.C.R. 81
Abhay Kumar Patel & Ors. v. State of Bihar & Ors.
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 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.
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
82 [2026] 2 S.C.R.
Supreme Court Reports
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.
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 v.
Union of India4 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 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
4 (1991) 3 SCC 47.
[2026] 2 S.C.R. 83
Abhay Kumar Patel & Ors. v. State of Bihar & Ors.
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.
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 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
84 [2026] 2 S.C.R.
Supreme Court Reports
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.
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
[2026] 2 S.C.R. 85
Abhay Kumar Patel & Ors. v. State of Bihar & Ors.
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 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.
Result of the case: Civil Appeal No. 54 of 2026 is allowed.
SLP(C) No. 8231 of 2025 is disposed of.
†
Headnotes prepared by: Ankit Gyan
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