Retrospective Recruitment Amendments Cannot Recast Merit After the Written Exam: Limits on Article 309 Retrospectivity in Ongoing Selections

1. Introduction

Case: ABHAY KUMAR PATEL & ORS. v. STATE OF BIHAR & ORS. (2026 INSC 24), Supreme Court of India, decided on 06-01-2026.

The dispute arose from recruitment to the post of Assistant Engineer (Civil/Mechanical/Electrical) in Bihar under the Bihar Engineering Services Class-II Recruitment Rules, 2019 (“2019 Rules”) and advertisements issued by the Bihar Public Service Commission (“BPSC”) in 2019. The 2019 Rules envisaged selection based on written examination marks and preparation of a merit list accordingly.

After the written examination (12.03.2022), publication of provisional merit lists (June/July 2022), and completion of document verification, the State notified the Bihar Engineering Service Class-II Recruitment (Amendment) Rules, 2022 dated 09.11.2022 (“2022 Amendment Rules”), inserting Rule 8(5) to add 25 marks weightage for prior contractual experience (reducing written-exam weightage to 75/100) and granting age relaxation for contractual Assistant Engineers. Critically, the amendment was given retrospective effect from 06.03.2019.

The appellants—already placed in the provisional merit lists prepared under the unamended 2019 Rules—challenged the amendment’s retrospective application to the ongoing recruitment. The Patna High Court upheld retrospective application, treating it as a policy decision and holding no vested right arose from inclusion in a merit list. The Supreme Court reversed, addressing a narrow issue: applicability of the 2022 Amendment Rules to the recruitment initiated under the 2019 advertisements.

2. Summary of the Judgment

• The Supreme Court held that Rule 8(5) (inserted by the 2022 Amendment Rules) cannot be applied to the recruitment process initiated by the 2019 advertisements after the written examination had been conducted and provisional merit lists published.
• The Court reaffirmed that selection must be finalized under the rules and criteria existing at the time of the advertisement, and the State cannot “rewrite the rules of the game” mid-process.
• Accordingly, the Court directed that the recruitment pursuant to the 2019 advertisements be completed within two months based on the June/July 2022 merit lists prepared under the unamended 2019 Rules.
• Appointments made pursuant to the High Court judgment (now set aside) may be dealt with “in accordance with law”; however, the State may continue such appointees if deemed fit by using available vacancies or by creating supernumerary posts, without disturbing the merit list mandated by the Court.
• In the connected Special Leave Petition (C) No. 8231 of 2025, the Court clarified that it had not examined the vires of Rule 8(5) and requested the High Court to decide the pending writ challenging validity of the amendment on merits, keeping all contentions open.

3. Analysis

3.1 Precedents Cited

(A) K. Manjusree v. State Of Andhra Pradesh & Anr. (2008) 3 SCC 51

This decision is the Court’s classic articulation of the “rules of the game” principle in public recruitment. The Supreme Court in the present case relied on the proposition that selection criteria cannot be altered after the relevant stage is over.

The Court extracted the core rule: prescribing or altering benchmarks after completion of the stage (there, after selection process steps) is “clearly impermissible.”

In Abhay Kumar Patel, the written examination had already occurred and merit lists had been prepared under the original criteria. Introducing a new 25-mark component for contractual experience would retroactively change how merit is computed—precisely what K. Manjusree disallows.

(B) Tej Prakash Pathak and Others v. Rajasthan High Court and Others (2025) 2 SCC 1

The Supreme Court treated Tej Prakash Pathak as the controlling framework. The Constitution Bench clarified:

• Recruitment begins with advertisement and ends with filling vacancies.
• Eligibility criteria for being placed in the select list cannot be changed midstream unless rules/advertisement permit it; even then, it must satisfy Article 14 non-arbitrariness.
• K. Manjusree “lays down good law”; it prohibits post-stage benchmark-setting, not all benchmark-setting.
• Placement in a select list does not confer an indefeasible right to appointment, but arbitrariness in denying appointment where vacancies exist is impermissible.

Applying this, the Court held that Bihar’s amendment—introduced after the written exam and provisional merit list—fundamentally altered the basis of selection and thus violated the midstream-change prohibition and Article 14’s anti-arbitrariness requirement.

(C) Partha Das v. State of Tripura 2025 SCC OnLine SC 1844

This decision, authored by J.K. Maheshwari, J. (also in the present bench), was used to illustrate how later executive or policy decisions cannot unsettle an advanced recruitment stage (there, cancellation after major steps including interview).

In Abhay Kumar Patel, the Court drew a parallel: not only was a benchmark introduced after the stage was over, but the change would effectively reconfigure the ranking already produced by the written examination—an even more direct “post-game” alteration.

(D) Shankarsan Dash v. Union of India (1991) 3 SCC 47

The State invoked the proposition that selection list inclusion does not create an indefeasible right to appointment. The Supreme Court accepted this as settled law, but sharply limited its relevance: the “no indefeasible right” doctrine cannot be used to justify changing the criteria for being placed in the merit list after the examination is over.

In other words, the case distinguishes between: (i) the State’s discretion not to appoint despite a list (subject to non-arbitrariness), and (ii) the State’s inability to retroactively change merit computation to alter who is in the zone of selection.

(E) State Of Haryana v. Subash Chander Marwaha (1974) 3 SCC 220

This case appears through the Constitution Bench discussion in Tej Prakash Pathak. The Supreme Court reiterated the doctrinal distinction: Subash Chander Marwaha concerns the right to appointment from a select list, while K. Manjusree concerns the right to be placed in the select list under pre-declared criteria. The present dispute squarely concerned the latter.

3.2 Legal Reasoning

(A) Statutory scheme under the 2019 Rules: selection anchored to written-exam marks

The Court closely read Rules 8, 9, 12 and 13 of the 2019 Rules and held the selection architecture is simple and exam-centric:

• Rule 8: eligibility (age, qualifications, health, conduct).
• Rule 9: competitive examination mechanism.
• Rule 12: suitability determined by total written examination marks.
• Rule 13: merit list prepared based on written examination marks.

Therefore, once the written examination occurred and merit was determined accordingly, introducing a 25-mark contractual experience component would not be a minor adjustment; it would change the “basis of selection” and recast comparative merit.

(B) “Rules of the game” and the recruitment timeline

The Supreme Court treated the recruitment as having reached an advanced stage: exam held (March 2022), results and provisional merit lists (June/July 2022), document verification underway. At this point, the State’s amendment in November 2022 was held to be a prohibited midstream alteration.

The Court emphasized that what was “provisional” about the list related to document verification—not an invitation for the State to redefine merit parameters retroactively.

(C) Limits on retrospective rule-making under Article 309

The High Court’s central premise—that the State can legislate retrospectively under the proviso to Article 309—was not rejected in the abstract. Instead, the Supreme Court clarified a functional limit: even valid retrospective rule-making cannot be used to arbitrarily disrupt an ongoing selection by altering criteria after candidates have competed under declared rules.

The Court framed this in constitutional terms: such retroactive application violates the equality guarantee under Articles 14 and 16 by introducing ex post facto criteria that affect inter se merit.

(D) Executive policy memos cannot override statutory recruitment rules mid-process

The State attempted to justify the amendment as implementing a pre-existing policy reflected in the 2018 Memo and 2021 Memo. The Supreme Court held:

• Those memos were executive instructions.
• The recruitment was governed by the statutory 2019 Rules, which did not incorporate such weightage at the time of the advertisements.
• Invoking the memos after the examination was treated as an “afterthought,” particularly because the 2019 advertisements contained no indication that such policy would affect merit.

(E) Remedial balance: protecting merit lists while managing appointments already made

Besides directing completion of appointments under the unamended rules, the Court acknowledged practical fallout: some appointments had been made pursuant to the High Court decision. The Supreme Court:

• Permitted the State to dispense with such services in accordance with law (since the foundation judgment was set aside); yet
• Left room for administrative continuity by allowing continuation via available vacancies or creation of supernumerary posts, provided the Court-mandated merit list is not disturbed.

3.3 Impact

(A) Reinforcement of “anti-midstream change” doctrine with specific application to weightage regimes

The judgment is significant because the challenged change was not merely a procedural tweak but a merit-recomposition mechanism (75/25 formula). The Court’s holding signals that when an amendment reweights components of selection, it is treated as altering “eligibility/criteria for being placed in the merit list,” and is presumptively invalid if applied after the relevant stage.

(B) Administrative guidance for States introducing contractual-experience benefits

The Court did not condemn weightage per se; it limited its application to future recruitments or to stages not yet crossed, consistent with Tej Prakash Pathak. States must therefore:

• Embed such policies in statutory rules before advertisements, or
• Apply changes only to recruitment stages not yet reached (where rules/advertisements permit), and only if Article 14 non-arbitrariness is satisfied.

(C) Litigation consequences: bifurcation between “applicability to an ongoing selection” and “vires of the amendment”

The Supreme Court expressly left open the challenge to the validity of Rule 8(5) itself (as raised in CWJC No. 18429 of 2025). This creates a structured roadmap:

• Even if an amendment is valid generally, it may still be inapplicable to an ongoing recruitment at an advanced stage.
• Conversely, the High Court remains free to decide whether Rule 8(5) is substantively valid, but that question is separate from the midstream application bar.

(D) Operational effect on public employment disputes

The decision strengthens candidates’ ability to challenge retroactive merit alterations without claiming an indefeasible right to appointment. It also constrains governments from using retrospective amendments to “correct” perceived inequities in a way that reallocates merit after examinations.

4. Complex Concepts Simplified

• “Rules of the game” principle: Once recruitment starts (advertisement issued), the selection criteria should not be changed after candidates have acted on those criteria—especially after the relevant stage (like the written exam) is completed.
• Retrospective rule-making under Article 309: Governments can make service rules with backward effect, but courts will stop such retrospectivity when it produces arbitrary outcomes or upsets an ongoing recruitment by changing merit criteria ex post facto.
• “No indefeasible right to appointment”: Being in a select/merit list does not guarantee appointment. However, this doctrine does not permit the State to alter how the list itself is prepared after the exam, because that would be unfair and arbitrary.
• “Provisional merit list”: “Provisional” usually means subject to verification of eligibility/documents—not that the government can later change the scoring formula and redraw merit.
• Legitimate expectation: Where candidates participate based on declared rules, they can reasonably expect the process will conclude under those rules, unless a lawful, non-arbitrary change is made at a permissible stage.
• Supernumerary posts: Extra posts created temporarily to accommodate persons without disturbing sanctioned strength/merit-based appointments—used as an equitable administrative device to manage transitional disruptions.

5. Conclusion

Abhay Kumar Patel v. State of Bihar crystallizes a clear operational rule: even when the State validly amends recruitment rules with retrospective effect, such amendments cannot be applied to an ongoing selection after the written examination and publication of merit lists if they alter the basis of selection and recast merit.

By anchoring its reasoning in K. Manjusree and the Constitution Bench in Tej Prakash Pathak and Others v. Rajasthan High Court and Others, the Supreme Court reaffirms that transparency, non-arbitrariness, and candidate notice are constitutional necessities in public recruitment under Articles 14 and 16. The decision also provides a pragmatic remedial approach—protecting the integrity of the original merit lists while allowing the State limited flexibility to manage appointments already made through vacancies or supernumerary posts.