DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI

A 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 E 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 F 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, G 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.) H and be considered is guaranteed under Art. 14 and 16 of the

DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI 245 [S. RAVINDRA BHAT, J.]

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 E 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. F

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 G Constitution of India.

Divya Pandey Reference answered.