DHEERAJ MOR versus HON’BLE HIGH COURT OF DELHI
[2020] 2 S.C.R. 161, Supreme Court of India, 2020
Outcome: Directions issued
Segment: Ratio
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SUPREME COURT REPORTS
[2020] 2 S.C.R.
judged with reference to that date and that date alone, is a
well-established one. A person who acquires the prescribed
qualification subsequent to such prescribed date cannot be
considered at all. An advertisement of notification issued/
published calling for application constitutes a representation
to the public and the authority issuing it is bound by such
representation. It cannot act contrary to it.
7. One reason behind this proposition is that if it were known
that persons who obtained the qualifications after the
prescribed date but before the date of interview would be
allowed to appear for the interview, other similarly placed
persons could also have applied. Just because some of the
person had applied notwithstanding that they had not acquired
the prescribed qualifications by the prescribed date, they could
not have been treated on a preferential basis.
8. Their applications ought to have been rejected at the
inception itself. This proposition is indisputable and in fact
was not doubted or disputed in the majority Judgment. This
is also the proposition affirmed in Rekha Chaturvedi (Smt.) v.
University of Rajasthan and Ors. (1993) I LLJ 617 (SC). The
reasoning in the majority opinion that by allowing the 33
respondents to appear for the interview, the Recruiting
Authority was able to get the best talent available and that
such course was in furtherance of public interest is, with
respect, an impermissible
justification. It is, in our considered
opinion, a clear error of law and an error apparent on the
face of the record. In our opinion, R.M. Sahai, J.(and the
Division Bench of the High Court) was right in holding that
the 33 respondents could not have been allowed to appear
for the interview.”
This reasoning is similar to other decisions, such as U.P. Public
Service Commission v Alpana 1994 (2) SCC 723 and Bhupinderpal
Singh & Ors. vs. State of Punjab & Ors 2000 (5) SCC 262. Therefore,
the observation in Vijay Kumar Mishra (supra) that “the right of such
a person to participate in the selection process undertaken by the
State for appointment to any post in public service (subject to other
rational prescriptions regarding the eligibility for participating in
the selection process such as age, educational qualification etc.)
and be considered is guaranteed under Art. 14 and 16 of the
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Constitution” is not correct. With respect, the distinction sought to be
made, between “selection” and “appointment”in the context of eligibility,
is without foundation. A selection process begins with advertisement,
calling for applications from eligible candidates. Eligibility is usually defined
with reference to possession of stipulated qualifications, experience, and
age, as on the last date (of receipt of applications, or a particular specified
date, etc). Anyone fulfilling those eligibility conditions, with reference to
such date, would be ineligible. Therefore, the observation that the right
to participate in the selection process, without possessing the prescribed
eligibility conditions, is guaranteed, is not correct; the right is guaranteed
only if the candidate concerned fulfils the requisite eligibility criteria, on
the stipulated date. As pointed out by the three judge bench decision, if
the contrary is correct, one acquiringthe stipulated qualifications
subsequent to the prescribed date cannot be considered. Also, one not
fulfilling the conditions cannot be allowed to participate, because, as
held in Ashok Kumar Sharma (supra), if it were known, that such
ineligible candidates can be considered, those who do not apply, but are
better placed than the ineligible candidates who are allowed to participate,
would be left out. Moreover, the authority publishing the advertisement/
notificationrepresentsto the members of the public that it is bound
by
such representation.
37. As a result of the above discussion, it is held that Vijay Kumar
Mishra (supra), to the extent that it is contrary to Ashok Kumar
Sharma(supra), as regards participation in the selection process, of
candidates who are members of the judicial service, for appointment to
the post of District Judge, from amongst the quota earmarked for
advocates with seven years’ practice, was wrongly decided. To that
extent, Vijay Kumar Mishra (supra) is hereby overruled.
38. In the light of the foregoing discussion, it is held that under
Article 233, a judicial officer, regardless of her or his previous experience
as an Advocate with seven years’ practice cannot apply, and compete
for appointment to any vacancy in the post of District Judge; her or his
chance to occupy that post would be through promotion, in accordance
with Rules framed under Article 234 and proviso to Article 309 of the
Constitution of India.
Divya Pandey
Reference answered.
DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI
[S. RAVINDRA BHAT, J.]