ORDER

Chelameswar, J.

1. Leave granted

“….the rules of the game …. the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced”[1]

“… changing the rules of the game after the game was played …is clearly impermissible”[2]

2. The above, and statements to the similar effect have petrified into a rule of law in the context of employment under the State or its instrumentalities. Whether such principle of law is immutable, what are those ‘rules of the game’ which cannot be changed after the game is either commenced or played, in our opinion requires an authoritative pronouncement by a larger Bench of this Court.

3. Such a question arises in the case in hand in the background of the following facts:-

4. The respondent High Court undertook the recruitment process for filling up of 13 posts of Translators by issuing a notification dated 17th September, 2009. It appears that under the Rajasthan High Court Staff Service Rules, 2002, “eligible candidates” are required to appear for a Written Examination consisting of two papers of translation from English to Hindi and vice versa carrying 100 marks each followed by a Personal Interview for 50 marks.

5. 21 candidates appeared for the above-mentioned examination of whom only three candidates were declared successful by the first respondent. Three unsuccessful candidates challenged the said decision of the High Court by filing a writ petition which came to be dismissed by the judgment under appeal dated 11th March, 2010.

6. From the reply filed by the first respondent in the writ petition as reflected in the judgment under appeal, it appears that after the examination was conducted, the Chief Justice ordered that the examination be treated as a Competitive Examination and only those candidates who secured a minimum of 75% marks be selected to fill up the posts in

question. In view of the decision of the Chief Justice, only three candidates were found suitable for appointment and a list of selected candidates was accordingly published by the High Court. This triggered the instant litigation.

7. Admittedly, the requirement of securing the minimum qualifying marks of 75% is not a stipulation of the Service Rules (referred to earlier) of the first respondent High Court as on the date of initiation of the recruitment process in question (i.e. 17th September, 2009). It appears that such a prescription had existed earlier under the Rules, but by an amendment, the said prescription was dropped with effect from 14th July, 2004.

8. Therefore, the appellants challenged the selection process on the ground that the decision of the Chief Justice to select only those candidates who secured a minimum of 75% marks would amount to “changing the rules of the game after the game is played” – a cliché whose true purport is required to be examined notwithstanding the declaration of this Court in Manjusree’s case (supra) that it is “clearly impermissible”.

9. The question whether the ‘rules of the game’ could be changed was considered by this Court on a number of occasions in different circumstances. Such question arose in the context of employment under State which under the scheme of our Constitution is required to be regulated by “law” made under Article 309 or employment under the instrumentalities of the State which could be regulated either by statute or subordinate legislation. In either case the ‘law’ dealing with the recruitment is subject to the discipline of Article 14.

10. Legal relationship between employer and employee is essentially contractual. Though in the context of employment under State the contract of employment is generally regulated by statutory provisions or subordinate legislation which restricts the freedom of the employer i.e. the ‘State’ in certain respects.

11. In the context of the employment covered by the regime of Article 309, the ‘law’ – the recruitment rules in theory could be either prospective or retrospective subject