Employer Can't Change Qualifications Prescribed In Advertisement In The Middle Of Selection Process : Supreme Court

Recently, the Supreme Court observed that any change to the eligibility/qualifications prescribed in the recruitment advertisement in the middle of the selection process is an impermissible exercise and would tantamount to denial of opportunity to the candidate eligible to be selected as per the original advertisement.

“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.”, the Bench comprising Justices Hima Kohli and Ahsanuddin Amanullah said.

The aforesaid of the Supreme Court came while deciding a Civil Appeal preferred by one Anil Kishore Pandit/Appellant against the decision of the Patna High Court's Division Bench, whereby the Division Bench while overturning the decision of the Single Judge rejected the candidature of the Appellant to be appointed on the Post of Amin because the Appellant became overage as per the amended eligibility conditions incorporated in the recruitment advertisement in the middle of the selection process.

Background

The gist of the dispute relates to the appointment of the Appellant to the post of Amin pursuant to the release of the recruitment advertisement by the District Employment Officer, West Champaran, Bettiah.

Based on the High Court's Single Judge order, the appointment of the Appellant was initially done in terms of the recruitment conditions mentioned in the advertisement which fixed the age cut-off date as 40 years as of 01st January 2011, however, the Appellant's recruitment was challenged subsequently by another candidate/Respondent no.8 before the Division Bench of High Court on the note that due to change in the age cut-off date from 01st January 2011 to 01st November 2011, the appellant no longer fulfills the eligibility criteria and have become overage.

The Division Bench overturned the Single Bench Judgment and canceled the appointment of the Appellant because he became overage as per the new eligibility conditions which had fixed age cut-off date to 01st November, 2011. The Division Bench observed that though the advertisement at the District level did officially fix the cut-off date as 01st January, 2011, it was not considered sacrosanct since uniformity was required to be maintained across the State with regard to the cut-off date fixed.

Aggrieved by the High Court's Division Bench decision, the Appellant preferred the Civil Appeal before the Supreme Court.

Before the Supreme Court, it was contended by the Appellant that the entire exercise of changing the recruitment conditions in the middle of the selection process is arbitrary as the candidate to be considered for selection in accordance with the rules as they existed on the date of the advertisement, and not based on the rules changed in the course of the selection process.

Supreme Court's Observation

Finding force in the Appellant's contention, the Supreme Court observed that the Division Bench of the High Court erred in reversing the Single Bench judgment. The Court noted that the age cut-off date being fixed as 40 years to be reckoned as on 01st January, 2011, and not from the changed date of 01st November, 2011.

The court observed that the right of a candidate to be considered in terms of the advertisement stands crystallized on the date of the publication of the advertisement, thus any subsequent amendment to the advertisement during the course of the selection process unless retrospective, cannot be a ground to disqualify a candidate.

To this effect, the court referred to its earlier judgment of Mohd. Sohrab Khan v. Aligarh Muslim University and Others., whereby the Court did not approve the change of the criteria/qualification in the middle of the selection process by the Selection Committee constituted for filling up the post-lecturer in Chemistry in the University.

“The Selection Committee during the stage of selection, which is midway could not have changed the essential qualification laid down in the advertisement and at that stage held that a Master's degree-holder in Industrial Chemistry would be better suited for manning the said post without there being any specific advertisement in that regard.”, the court observed in Mohd. Sohrab Khan.

Moreover, a Judgment of N.T. Devin Katti and Others v. Karnataka Public Service Commission and Others was referred by the court, which also observed that “a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature.”

The Supreme Court noted that the subsequent change in the cut-off date for reckoning the age of candidates, from 01st January 2011 to 01st November 2011 was done without following the due process as prescribed, of issuing a pubic advertisement and calling the applications again from the potential candidates based on the new cut-off date.

“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 01st January, 2011 to 1st November, 2011. This was done without following the due process as prescribed, of issuing a pubic advertisement, etc. Nor was the earlier advertisement recalled.”, the court observed.

Conclusion

Based on the above premise, after finding that the Appellant's age was in the permissible range as per the original advertisement, the court allowed the Appeal, and the impugned judgment was set aside, directing the reinstatement of the Appellant on the post of Amin w.e.f. 27th June, 2015 i.e., the date of initial appointment, and the disbursement of notional benefit thereof except the actual wages, having not discharged the duty on the said post in all these years.

Counsels For Appellant(s) Mr. Subhro Sanyal, AOR Mr. Sagar Roy, Adv. Mr. Sandeep Lamba, Adv. Mr. Amber Shehbaz Ansari, Adv. Dr. Nilakshi Choudhury, Adv. Mr. Kaushal Kishore, Adv. Mr./Ms. Avni Singh, Adv. Mr. Sanjay Kumar, Adv. Ms. Aakanksa Tiwari, Adv.

Counsels For Respondent(s) Mr. Samir Ali Khan, AOR Mr. Pranjal Sharma, Adv. Mr. Kashif Irshad Khan, Adv. Mr. Neeraj Shekhar, AOR Mr. Kartik Kumar, Adv. Mrs. Kshama Sharma, Adv.

Case Title: ANIL KISHORE PANDIT VERSUS THE STATE OF BIHAR AND OTHERS

Citation : 2024 LiveLaw (SC) 233

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