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Synopsis

The Supreme Court recently observed that once an eligibility criterion is declared by means of a fresh advertisement, it cannot be changed midway through the recruitment process, as it would tantamount to ‘changing the rules of the game, after the game is played’.

A bench of Justices Sudhanshu Dhulia and K Vinod Chandran was dealing with a plea filed by one Prabhjot Kaur against the Punjab and Haryana High Court's division bench decision of July 18, 2023.

With regard to state civil services examinations, while the Punjab government Home Department took the view that the DSP post was reserved, for the ‘SC Sports (Women)’ category, the Department of Social Justice was of the view that the DSP post in question should be reserved for ‘SC Sports’ (in other words, it should not be reserved for women alone). 

The division bench, however, called upon the Chief Secretary of Punjab to resolve the conflict between the stands taken by the two departments of the State Government. The Chief Secretary supported the stand of the Department of Social Justice, on the ground that a mistake had crept into the advertisement no.14, and that the DSP post should have been reserved for ‘SC Sports’, and not ‘SC Sports (Women)’.            

In light of the stand taken by the Chief Secretary, the division bench remanded the matter to the single judge for fresh adjudication of both the writ petitions (filed by the appellant and private respondent, respectively). This came to be challenged by the appellant.

The court noted the Chief Secretary of the State filed an affidavit on directions of the division bench to the effect that the DSP post in question was erroneously reserved for ‘SC Sports (Woman)’ and the advertisement no.14 deserved to be withdrawn and a fresh advertisement issued. But the fact was that this was never done. In fact, even the private respondent did not challenge advertisement no 14 in its entirety (nor did anyone else).

Hence, the advertisement no 14 of December 11, 2020 holds the field and it is only under this advertisement that the respective rights of the appellant and private respondent can be determined, it said.  

The recruitment process had begun with the publication of the advertisement calling for applications and the process ended with filling of the vacancies. The selection process had begun and midway changes could not have taken place, the bench said.  

As per advertisement no.14 of December 11, 2020, there was only one post of DSP against ‘SC Sports’, which was reserved for women under the 2020 Rules, when 33% reservation was mandated for women. The private respondent simply cannot be appointed to this post, the court said.

The court also highlighted that it must be remembered that the private respondent participated in the entire recruitment process without protest, and made a representation only after the merit list was released by the Public Service Commission. Though the private respondent was not exempted from applying afresh pursuant to advertisement no.14 of December 11, 2020, it was not open for the private respondent to plead ignorance of the terms of the advertisement at such a belated stage.   

"What is important to be noted here is that the present petitioner applied under the category 'SC Sports (Women)' which we may add, at the cost of repetition, was a category created pursuant to the 2020 Rules, in order to meet the mandate of reservation of 33% seats for women. The private respondent on the other hand, applied under the category 'SC Sports (80)'," the bench said.

Consequently, both the petitioner as well as the private respondent came to be selected against their respective categories. On April 26, 2022, private respondent was appointed as Deputy Superintendent (Jails) and on March 10, 2023. The petitioner, being the only SC Sports (Women) to have qualified, is now likely to be given the post of DSP, the bench said.

The court found itself in agreement with the findings of the single judge for the reason that once an eligibility criteria was declared by means of a fresh Advertisement i.e. Advertisement No. 14 of December 11, 2020, the same could not be changed midway through the recruitment process, as the same would tantamount to ‘changing the rules of the game, after the game is played’.

"Once it is accepted that the DSP post in question was reserved for ‘SC Sports (Women)’ as per advertisement no.14 of December 11, 2020, the appellant must be accepted as the only person qualified in her category who could be appointed. This is because she is the only SC woman candidate who successfully cleared all the tests for the post of DSP," the bench said.

The court pointed out that this advertisement followed the 2020 Rules, where 33% of reservation was to be made for women on every government post. Thus, DSP SC Sports was reserved for women. This was mentioned in the advertisement. This advertisement or the 2020 Rules were never challenged. The respondents now cannot cry foul referring to an event post December 11, 2020 where the so called roster system came into existence, it said. 

"We have not even considered the need to examine the legality of this roster in principle. Sufficient will it be for our purpose to hold that post December 11, 2020 no change could have been made," the bench said.

Court allowed the appeal and set aside the impugned order passed by the division bench, by upholding the order of the single judge of March 03, 2023.

Case Title: Prabhjot Kaur Vs State of Punjab And Ors