Supreme Court Rules Retrospective Amendment Cannot Recast Merit List After Written Exam

A bench of Justices J.K. Maheshwari and Vijay Bishnoi heard appeals challenging the retrospective application of Rule 8(5) inserted into the Bihar Engineering Services Class‑II Recruitment Rules, 2019 by the 2022 Amendment Rules. The questions before the Court concerned whether the amendment — which introduced up to 25 marks’ weightage and age relaxation for contractual Assistant Engineers and was made retrospective to 06.03.2019 — could be applied to recruitment processes for which the written examination had been conducted and provisional merit lists published.

The Supreme Court allowed the appeal, set aside the High Court's judgment that had upheld retrospective application, and directed that the selection process initiated under the 2019 Advertisements be finalised in accordance with the unamended 2019 Rules. The Court observed that once the recruitment process had reached and concluded the written examination stage and provisional merit lists were published, the “rules of the game” could not be altered to the detriment of candidates who had competed under notified criteria. The Court, in its reasoning, observed: “In view of the 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. 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.” The Court directed that appointments be finalised within two months and clarified that any appointments already made pursuant to the High Court order could be terminated in accordance with law, while preserving the State’s option to continue services or create supernumerary posts without affecting the merit list.

Background

The Road Construction Department, Government of Bihar issued the Bihar Engineering Services Class‑II Recruitment Rules, 2019 and the Bihar Public Service Commission issued four advertisements in 2019 for Assistant Engineer posts. The selection scheme in the 2019 Rules prescribed determination of suitability “on the basis of the total marks obtained in the written examination” and required that merit lists be prepared on the basis of written exam marks. Written examinations were held in March 2022 and provisional merit lists were published in June–July 2022; document verification proceeded thereafter.

On 09.11.2022 the State issued the 2022 Amendment Rules inserting Rule 8(5), which reduced the written‑exam weight to 75 and introduced up to 25 marks for contractual work experience (5 marks per year) and corresponding age relaxation, and declared the amendment to be retrospective to 06.03.2019. Candidates who had secured places in provisional merit lists challenged retrospective application before the Patna High Court (CWJC No. 18302 of 2022). The Division Bench dismissed the writ petition, treating the amendment as a policy decision and observing that the provisional merit list did not give an indefeasible right to appointment.

Before the Supreme Court, petitioners argued that the selection process must be governed by the rules and advertisement in force on the date of advertisement and relied on precedent that “the rules of the game cannot be changed once the game has begun.” The State defended the amendment as a policy measure to recognise contractual service and relied on its power under Article 309. Applying settled law (including guidance in K. Manjusree and the Constitution Bench in Tej Prakash Pathak), the Supreme Court held that eligibility criteria notified at the commencement of a recruitment process could not be changed after the stage for which they applied was over, and that retrospective application that altered the basis for placement in the merit list was impermissible and violative of legitimate expectations. The appeal was allowed and the High Court order dated 05.07.2023 was set aside. A related Special Leave Petition (SLP (C) No. 8231 of 2025) was disposed of by directing the High Court to adjudicate the challenge to Rule 8(5) on merits; the Supreme Court did not rule on the vires of Rule 8(5) itself.

Case No.: (Civil Appeal arising out of SLP (C) No. 22323 of 2023)

Case Title: Abhay Kumar Patel & Ors. v. State of Bihar & Ors.

Appearances: 
For the Petitioner(s): Mr. Vijay Kumar, Senior Advocate
For the Respondent(s): Mr. Anshul Narayan, Additional Standing Counsel, State of Bihar