Subsequent amendment to advertisement during the course of selection process unless retrospective, cannot be a ground to disqualify candidate from the zone of consideration: SC
Justices Hima Kohli & Ahsanuddin Amanullah [02-02-2024]

Read Order: ANIL KISHORE PANDIT v. THE STATE OF BIHAR AND OTHERS [SC- CIVIL APPEAL NO. 1566 OF 2024]

Tulip Kanth

New Delhi, March 18, 2024: The Supreme Court has restored the appointment of the appellant to the post of Amin after relying on an earlier advertisement as the subsequent amendment pertaining to the age criteria was done without following the due process of issuing a pubic advertisement.

Vide a memo dated October 13, 2011, the District Employment Officer, Bettiah published an advertisement inviting applications from suitable candidates for appointment to the post of Amins on contractual basis. The cut-off date of the age as per the District level vacancy was fixed as 40 years as on January 1, 2011, for the Economic Backward Class (EBC) category, both males and females. The appellant applied for selection to the said post. The appellant’s age was 39 years 11 months and 27 days and he qualified the age criteria in terms of the subject advertisement. The records reveal that in pursuance to a letter [No. 446(4)/Revenue (dated 04th November, 2011)] subsequently issued by the Principal Secretary Revenue and L.R. Department, Government of Bihar, another notice was displayed on the Notice Board of the Collectorate, West Champaran on 15th November, 2011, stating that interested parties could apply till 30th November, 2011.

The District establishment prepared a selection list where his name was placed at Serial No.9, whereas that of the respondent No.8 was at Serial No.11. The remarks column noted that the appellant’s candidature was cancelled on the ground of his being overage.Aggrieved by the aforesaid, the appellant submitted a representation before the District Magistrate for rectification of the results, but to no avail. The appellant then filed a writ petition before the High Court which was disposed of with a direction issued to the Collector pass necessary orders of appointment, in the event the date of birth of the appellant was found to be correctin terms of his Matriculation Certificate. Thereafter, the appellant was appointed to the post of Amin.

Aggrieved by the said appointment, the respondent no.8 filed an intra-Court appeal before the Division Bench stating inter alia that he was not made a party by the appellant in the writ petition. Agreeing with the stand of the respondent No.8, the Division Bench had passed the impugned judgement.

It was the appellant’s case that the Division Bench erred in ignoring the date of the public advertisement that mentioned the cut off date as January 1, 2011, for reckoning the age of a candidate, which in the case of the appellant herein who belonged to the extremely backward category, was 40 years. He stated that the subsequent communication issued by the respondents changing the cut off date to November 1, 2011, was not placed in public domain and was displayed only on the Notice Board in the office of the Collectorate.

At the outset, the Division Bench of Justice Hima Kohli and Justice Ahsanuddin Amanullah, said, “It is settled law that it is not open for an employer to change the qualifications prescribed in the advertisement midstream, during the course of the ongoing selection process. Any such action would be hit by the vice of arbitrariness as it would tantamount to denial of an opportunity to those candidates who are eligible in terms of the advertisement but would stand disqualified on the basis of a change in the eligibility criteria after the same is announced by the employer. Having applied for appointment in accordance with the terms prescribed in the advertisement, a candidate acquires a vested right to be considered in accordance with the said advertisement. This consideration may not necessarily fructify into an appointment but certainly entitles the candidate to be considered for selection in accordance with the rules as they existed on the date of the advertisement.”

The Bench further added, “To put it differently, the right of a candidate for being considered in terms of the advertisement stands crystalized on the date of the publication of the advertisement. Any subsequent amendment to the advertisement during the course of the selection process unless retrospective, cannot be a ground to disqualify a candidate from the zone of consideration.”

The Top Court agreedwith the submissions of the appellant. As per the Bench, in the first instance, the respondents ought not to have issued a subsequent communication after having issued a public advertisement fixing the cut off date for reckoning the age of candidates, as on January 1, 2011. The initial decision taken by the respondents was sought to be overturned later on, merely on the basis of an internal discussion within the department and it was decided that a fresh notice be issued changing the date that was initially fixed as January 1, 2011 to  November 1, 2011.

The Bench observed that this was done without following the due process as prescribed, of issuing a pubic advertisement, etc. Nor was the earlier advertisement recalled. As per the earlier advertisement, his age was within the permissible range and he was high up in the selection list and was even appointed to the post of Amin in 2015.

Allowing the appeal, the Bench restored the appointment of the appellant to the post of Amin w.e.f June 27, 2015, the date of his initial appointment, without any break in service. The Bench also held that the appellant would be entitled to all the notional benefits except for the actual wages, having not discharged his duties on the said post in all these years.