IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11657 of 2010 1. SUNNY KUMAR S/O SRI ASHOK SINGH R/O VILL.- MAGARDAHI, P.O- ULAO, P.S. BARAUNI, DISTT.- BEGUSARAI 2. RAJEEV KUMAR S/O SRI UMESH PRASAD SINGH R/O VILL. &P.O.- MAJHAUL, P.S.- CHERIABARIARPUR, DISTT.- BEGUSARAI Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS NOW NAMED AS GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE PRINCIPAL SECRETARY, HOME (SPECIAL) DEPARTMENT GOVERNMENT OF BIHAR, PATNA 4. THE DIRECTOR GENERAL CUM COMMANDANT GENERAL BIHAR HOME GUARDS, PATNA 5. THE DISTRICT MAGISTRATE, BEGUSARAI 6. THE DIRECTOR, DISTRICT RURAL DEVELOPMENT AUTHORITY, BEGUSARAI-CUM-CHAIRMAN HOME GUARDS SELECTION COMMITTEE, BEGUSARAI 7. THE DISTRICT COMMANDANT, HOME GUARDS, BEGUSARAI ----------- 4. 26.10.2010 Heard learned counsel for the petitioners and for the State. The two petitioners seek a direction commanding the respondents to send them for training as Home Guards (Volunteer) pursuant to their final selection. Learned counsel for the petitioners submits that Advertisement No. 1 of 2008 was published inviting applications at the District level in Begusarai for appointment of Home Guards (Volunteer) in the rural and urban areas. The total number of sanctioned posts for the rural area was 1500 and for the urban area 150. 20% of the 2 sanctioned posts for rural area i.e., 300 and 36 for the urban areas were to be filled by fresh nomination of Home Guards (Volunteer). The advertisement also mentioned Block wise vacancies in the District of Begusarai. The petitioners competed and secured 13 points and 14 points respectively in the general category placing them at serial no. 91 and 16 respectively of the merit list at the District level. The cut off mark for selection of candidates in the general category was 12. Orders were then issued on 17.4.2010 sending the selected persons in the merit list for training. The selections were made according to the reservation roster. A query was raised by the District Magistrate of Begusarai that in view of the Block wise vacancies mentioned in the advertisement the merit list should perhaps have been prepared Block wise. In the meantime, certain others from the Garhpura Block, in the District of Begusarai approached this Court in C.W.J.C. No. 3988 of 2010. This Court directed the respondents to make the selection process in accordance with the advertisement. Deviating from the advertisement the respondents have now come out with a final order dated 29.7.2010 that the merit list prepared at the district level should be redrawn Block wise under the 3 advertisement. Referring to earlier deliberations in an order dated 21.7.2010 both with regard to Khagaria and Begusarai, it is submitted that, a decision had been taken to prepare the merit list according to the roster District wise as per the advertisement and which is asserted has been done in the District of Khagaria, but a different yardstick has been adopted for the District of Begusarai. The counter affidavit affirmed by the District Commandant, Home Guards at Begusarai specifically acknowledges at Paragraph-11 that the advertisement was for appointment at the District level and the vacancies at the Block level were to be filled up at the District level merit list/selection on pro-rata basis. It acknowledges the merit position of the petitioners in the District level merit list and that this merit list was published on 19.3.2009. Referring to the order of this Court in C.W.J.C. No. 3988 of 2010, it states that as per the orders of this Court the process for preparation of a Block wise merit list has been initiated and done. The issue for examination by the Court is whether the order dated 29.7.2010 is in consonance with the advertisement or does it purport to rewrite the advertisement? Did the advertisement provide 4 for a District level merit list or a Block level merit list? Did the advertisement provide for a District level merit list for vacancies at the Block level to be filled up from such a merit list on a pro-rata basis? From the pleadings of the parties, it is beyond the pale of any controversy that the advertisement was for a District level selection. A District level merit list was also prepared and published. An unnecessary query by the District Magistrate coupled with a misreading of an order of this Court has created complications where non- existed. This Court directs that the selection to be made strictly in accordance with the advertisement. The law stands well settled that where a selection process has been initiated under an advertisement, it must be completed in accordance with the conditions stipulated in the advertisement and there can be no deviation from the same. Any deviation from the conditions and stipulations of the advertisement shall become arbitrary vitiating the entire selection process. If the advertisement was for appointments at the District level and a merit list according to the reservation roster has been prepared and published on 19.3.2009, appointments are required to be made from it Block 5 wise on a pro-rata basis. The decision dated 29.7.2010 for preparation of a fresh merit list Block wise is contrary to the advertisement and is therefore not sustainable. The Supreme Court in (1990) 3 SCC 157 (N.T. Devin Katti v. Karnataka Public Service Commission) at Paragraph-11 has held as follows:- “11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallizes on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to 6 ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear 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 District level merit list dated 19.3.2009 continues to be valid and enforceable in law. The respondents are therefore directed to proceed in accordance with that merit list to send the selected persons according to the merit list for training as Home Guards Volunteers. The Court expects that necessary steps for enforcement of the merit list shall now be taken preferably within a maximum period of three months 7 from the date of receipt and/or presentation of a copy of this order. The order dated 29.7.2010 accordingly stands quashed. The application is allowed. P. Kumar (Navin Sinha, J.)