State Govt cannot whimsically interfere in recruitment processes governed/driven by Statutes and Rules via Executive Orders: Supreme Court

Supreme Court: While considering the appeals revolving around cancellation of the ongoing recruitment processes by the State on the pretext of a policy decision, the Division Bench of J.K. Maheshwari* and Rajesh Bindal, JJ., held that when recruitment processes are held under strength of the relevant Statutes and Rules framed under such Statutes, then it cannot be left at the whims and fancies of the State to interfere in it through executive orders, without adhering to the principles of consistency and predictability, which are warranted by the rule of law and are pillars of non-arbitrariness.

Background:

One of the appeals before the Court dealt with the midway cancellation of the ongoing recruitment process of ‘Enrolled Followers’ in Tripura State Rifles Battalions. The recruitment of Enrolled Followers is governed by the Tripura State Rifles Act, 1983 (TSR Act) read with the Tripura State Rifles (Recruitment) Rules, 1984 (TSR Rules).

As per Rule 8 of TSR Rules the recruitment process for total 506 vacancies of Enrolled Followers in the Tripura State Rifles was bifurcated in two categories — “inside-state quota” – [372 posts] and “outside state quota” [134 posts], specifying the number of posts for respective categories, which is the subject matter in this case.

Subsequently, recruitment rallies were held from 23-10-2016 to 15-11-2016. The proceedings of recruitment were submitted to the Police Head Quarters, Tripura (PHQ) on 20-12-2016 by the Recruitment Board. PHQ on 21-12-2016 forwarded the same to the Home Department for its necessary approval for starting the process of character verification. The same was approved by the Home Department for further course of action. On 09-06-2017, a communication was sent by the PHQ to the Commandant, 2nd Battalion, Tripura State Rifles to complete necessary steps towards issuing appointment offers. The Commandant, requested for more time to complete the verification process of the prospective selectees in both quotas for which 3 months’ time was granted by the DGP on 26.07.2017 with request to complete such process early.

During the ongoing recruitment process, the State of Tripura was occupied with the elections of Legislative Assembly. After the elections, new government was formed on 03-03-2018. On 14-03-2018, a memorandum no. F.20(1)-GA(P&T)/18 (“Abeyance Memorandum”) was issued stating that for the purpose of reviewing the recruitment process, all the ongoing recruitment by all the departments/autonomous bodies under Government shall be kept in abeyance until further orders. Consequently, the recruitment process in the present case came to a halt.

On 05-06-2018, the State Government vide notification no. F-20(1)-GA(P&T)/18, issued a new recruitment policy (“NRP”) applicable to all the establishments under administrative control of the State Government. The new State Government decided to make all new appointments under NRP, and all the existing recruitment processes initiated by the respective departments were directed to be cancelled (“Cancellation Memorandum”).

Aggrieved by such cancellation, multiple writ petitions were filed before Tripura High Court challenging Abeyance and Cancellation Memorandums and seeking direction for completion of the ongoing recruitment process. However, the High Court dismissed all the writ petitions and noted that neither the NRP nor the Cancellation Memorandum has overriding effect over the statutory rules nor the government had any intention to do so, because to bring any change, rules have to be reframed to bring them in sync with the policy decision. It was also observed that mere completion of process of selection to the post of Enrolled Followers does not confer any indefeasible right of appointment on the appellants.

Issues Framed:

• Whether the Abeyance Memorandum and Cancellation Memorandum purportedly issued in the wake of change of policy of the State in larger public interest, under the executive instructions, was justified and has any sanction of law?

• Whether the State’s decision to apply NRP to the ongoing recruitment process of Enrolled Followers under the pretext of the Cancellation Memorandum would amount to changing the rules of the game after the game has begun, i.e., the recruitment process has commenced?

• Whether in the context of this case, the principle of legitimate expectation is attracted; and in the facts, what relief can be granted?

Court’s Assessment:

Perusing the matter, the Court firstly delved into the procedure enshrined under TSR Act and TSR Rules. As per the procedure, it is the Inspector-General, who has the power to specify the tests to be undertaken for recruitment of the Enrolled Followers. However, the Draft Recruitment Programmes finalised by the Chairman of the Recruitment Boards and sent for approval to PHQ, are approved by Director General of Police (Tripura State Rifles) (“DGP”). As per counsel of the respondent, the Court noted that the Inspector-General has been replaced by DGP vide the Tripura State Rifles (Second Amendment) Act, 2006. As such, the drafts sent by the Chairman of Recruitment Board are now being approved by DGP, specifying the lists which are to be cleared. Thus, the procedure as explained has a statutory backing.

The Court pointed out that NRP dated 05-06-2018 was an executive instruction of the State issued under Article 166(1) of the Constitution, following the meeting of the Council of Ministers. It was in the nature of a general policy decision to bring about a change in recruitment process of the State. It did not have a statutory and legislative backing, rather it was a decision taken solely in the exercise of the power vested in the executive. As such, Abeyance Memorandum and Cancellation Memorandum were also issued in exercise of the executive power of the State by issuing executive orders.

The Court noted that for the recruitment of candidates belonging to “inside-state quota” and “outside state quota”, the process was not at the nascent stage and selection lists were prepared and significant progress was made up to the stage of character verification which was in process.

Considering the conundrum of Statutory Rules vs. Executive Order, the Court pointed out that Under TSR Act read with TSR Rule 24(e), the mandate is for the candidate to pass such test as may be specified by the DGP in writing. In respect of the advertisement for inside-state candidates, the DGP accorded his approval for a ‘physical test, written test and viva voce’ on 07-09-2016, whereas for outside- state candidates, approval was accorded for ‘physical test, written test, practical, interview’ on 08-09-2016. Such a stipulation was plainly reflected in both advertisements, and after commencement of the recruitment process, it was carried out keeping in mind the stipulation in the TSR Rules.

The Court pointed out that the Cancellation Memorandum had reasoned that ongoing recruitment processes was cancelled to implement NRP, and in particularly, to completely abolish interviews in the recruitment for Group-D posts. “As such, the ancillary question which arises for our consideration is whether a policy decision in general, notified by way of executive instructions, can override the mandate of TSR Act and TSR Rules”. The Court noted that recruitment for the post of Enrolled Followers, within the inside State quota or outside State quota, was at the verge of completion.

The Court pointed out that from the record of the selection or as per averments in the counter affidavit, nothing could be elucidated as to why the existing process of selection was not fair and transparent. For the recruitment to the post of Enrolled Followers, the process undertaken was as per the provisions of TSR Act and TSR Rules framed thereunder, having statutory backing. Therefore, the Court observed that if recruitment process was carried out as per the TSR Act and TSR Rules framed thereunder, deviation was not permitted by way of executive instructions in the wake of policy decision of the government, otherwise it would amount to overriding the recruitment process carried out under the aforesaid Act and Rules by means of executive instructions.

The Court stated that where the subject and the field is occupied by the statute and the rules, the executive instructions cannot supplant the same. The Court pointed out that Enrolled Followers is a Class—IV (Group—D) post and as per policy decision of NRP, interview for Class—IV (Group—D) post was to be completely abolished. However, no such amendment to that effect has been brought either in the statute and/or in the rules yet. Under such circumstances, merely because of a new recruitment policy, the recruitment process under the Act and Rules cannot be cancelled.

Therefore, the Court concluded that executive instructions issued under Article 166(1) of the Constitution cannot override the act done under the Statute and the Rules made thereunder. The executive instructions can only supplement the provisions of the Act and the Rules in case of any ambiguity or if gaps are to be filled but such executive instructions cannot supplant the specific provisions which already occupy the field. Therefore, the action of the government in cancelling the process of recruitment for the post of Enrolled Followers was not justified and amounted to arbitrary exercise of power.

Considering the contention that abeyance and then cancellation of the recruitment process based on NRP was a bona fide decision by the Government in larger public interest, the Court expressed its difficulty to see how larger public interest can be achieved in the present context specifically where the recruitment process for Enrolled Followers was at a significantly advanced stage and interviews had already been conducted. The Court pointed out that the State has the burden to justify the decision on the anvil of Articles 14 and 16 of the Constitution and show how its decision was in furtherance of larger public interest. The Court thus opined that the State miserably failed in discharging such burden, and in the facts and circumstances of this case, we are unable to agree with the contention of the State that the decision to keep the ongoing recruitment process in abeyance and its subsequent cancellation was in the larger public interest.

The Court noted that the reasoning behind the said cancellation, as suggested by the State of Tripura, was that it was decided by the Government that not only future recruitment, but also ongoing recruitment processes must invariably be governed by the NRP.

“In the present case, not only benchmarks are being set after the game has been played, rather the State has decided that a portion of the game itself, the step of interview, should not have been played at all”.

On the strength of a general policy decision of the State, an ongoing recruitment process was first put in abeyance and then cancelled, it has been derailed with the intention to implement NRP when the recruitment has already reached the stage of preparation of the merit list. The very application of NRP to the ongoing process was illegal on 3 grounds:

• It was an executive instruction and in the absence of an amendment in the TSR Act and TSR Rules, the recruitment procedure could not have been changed.

• The application of NRP to the ongoing recruitment process would amount to changing the rules of the game after the game has already begun, i.e. recruitment process has commenced.

• As per clause (2) of NRP, the recommendation to abolish interviews for Group-D posts would only apply prospectively and it would not mean to apply in the recruitment process wherein the interview has already taken place.

On the question of accrual of any absolute right of appointment in favour of the appellants by participating in the recruitment process after completion of the recruitment rallies and preparation of a provisional merit list. or is there a legitimate expectation to be recruited having participated in the process; the Court stated that mere participation in the recruitment process or placement in a select list would not create an indefeasible right to be appointed, even if vacancies are available. However, the candidates who have taken part in a recruitment process conducted by a public authority have a legitimate expectation that the selection process will be conducted fairly and without arbitrariness.

“Consistency and predictability are important aspects of non-arbitrariness, and the rule of law obligates the State to only take decisions which are rooted in fairness and equality”.

The Court pointed out that in the present case, the State had decided to do away with the recruitment process altogether. The State’s decision not to appoint a person who has been placed on the select list must not be arbitrary and must be rooted in objective reasoning. the State failed to prove that the decision to apply NRP to the ongoing recruitment process was in the larger public interest — as such, the legitimate expectation of fairness in the recruitment process has to be upheld.

Hence the Court allowed the instant appeals.

Similar Matters:

The Court considered similar matters alongside the aforementioned appeal. One case related to recruitment for Tripura Civil Services, Grade-II, Group ‘A’ gazetted category posts and Tripura Police Service (TCS/TPS), which were abruptly cancelled¹. The other case was related to appointment and subsequent cancellation of recruitment process for the post of Inspector of Boilers (Group-A Gazetted) in Factories and Boilers Organization under the Labour Department, Government of Tripura².

In both these cases, the State of Tripura preferred an appeal before the Supreme Court. However, the Supreme Court dismissed the appeals holding that the decision to implement the NRP for recruitment of TCS/TPS and Inspector of Boilers cannot be sustained. The Court once again held that recruitment process, especially when it is conducted under the strength of statutory rules, cannot be left at the whims and fancies of the State to interfere, through executive orders.

[Partha Das v. State of Tripura, Civil Appeal Nos. 4426-4466 of 2023, decided on 28-8-2025]

[State of Tripura v. Samudra Debbarma, Civil Appeal Nos. 4467-4468 of 2023, decided on 28-8-2025]

[State of Tripura v. Arunabh Saha, Civil Appeal No. 4470 of 2023, decided on 28-8-2025]

*Judgment by Justice J.K. Maheshwari

Advocates who appeared in this case :

For Appellant(s): Mr. Pallav Shishodia, Sr. Adv. Mr. Danish Zubair Khan, AOR Dr. Lokendra Malik, Adv. Mr. Ajit Pandey, Adv. Mr. R. Balasubramanian,, Sr. Adv. Mr. Shuvodeep Roy, AOR Mr. Deepayan Dutta, Adv. Mr. Saurabh Tripathi, Adv. Ms. Sanya Minhas, Adv. Mr. B. Venkatraman, Adv. Mr. Kundan Kumar Mishra, AOR Mr. Ratnesh Kumar, Adv. Mr. Vishal

For Respondent(s): Mr. R. Balasubramanian,, Sr. Adv. Mr. Shuvodeep Roy, AOR Mr. Deepayan Dutta, Adv. Mr. Saurabh Tripathi, Adv. Ms. Sanya Minhas, Adv. Mr. B. Venkatraman, Adv. Mr. P.V. Dinesh, Sr. Adv. Mr. Zulfiker Ali P. S, AOR Ms. Anna Oommen, Adv. Ms. Syed Nazarat Fatima, Adv. Mr. J. Karan Malhotra, Adv. Mr. Pranab Prakash AOR

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