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TMI Blog2013 (3) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... ve effect? - HELD THAT:- 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. 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 of course to the rule of non- arbitrariness. However, in the context of employment under the instrumentalities of the State which is normally regulated by subordinate legislatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of India for appropriate orders in this regard. X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject of course to the rule of non- arbitrariness. However, in the context of employment under the instrumentalities of the State which is normally regulated by subordinate legislation, such rules cannot be made retrospectively unless specifically authorised by some constitutionally valid statute. 12. Under the Scheme of our Constitution an absolute and non-negotiable prohibition against retrospective law making is made only with reference to the creation of crimes. Any other legal right or obligation could be created, altered, extinguished retrospectively by the sovereign law making bodies. However such drastic power is required to be exercised in a manner that it does not conflict with any other constitutionally guaranteed rights, such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he eligibility criteria altered.] Deal with situations where the State sought to alter 1) the eligibility criteria of the candidates seeking employment or 2) the method and manner of making the selection of the suitable candidates. The latter could be termed as the procedure adopted for the selection, such as, prescribing minimum cut off marks to be secured by the candidates either in the written examination or viva-voce as was done in the case of Manjusree (supra) or the present case or calling upon the candidates to undergo some test relevant to the nature of the employment [such as driving test as was the case in Maharashtra State Road Transport Corporation (supra)]. 14. If the principle of Manjusree's case (supra) is applied strictly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In appeal, this Court reversed and opined that the candidates securing minimum qualifying marks at an examination held for the purpose of recruitment into the service of the State have no legal right to be appointed. In the context, it was held:- 12. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for more (sic mere) eligibility……. 17. Unfortunately, the decision in Subash Chander Marwaha (supra) does not appear to have been brought to the notice of their Lordships in the case of Manjusree (supra). 18. This Court in the case of Manjusree (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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