IMPORTANT POINT
Appointment – Right of a candidate for being considered in terms of advertisement stands crystallized on the date of publication of advertisement – Any subsequent amendment to advertisement during course of selection process unless retrospective, cannot be a ground to disqualify a candidate from zone of consideration.

ORDER :

1. Leave granted.

2. The appellant is aggrieved by an order dated 24th January, 2017, passed by the Division Bench of the High Court of Judicature at Patna whereunder, an intra-Court Appeal¹[LPA No. 1892 of 2015] filed by the respondent no.8 herein against an order dated 07th March, 2013, passed by the learned Single Judge in a writ petition²[CWJC No. 15685 of 2012 filed by the appellant herein was allowed and as a result thereof, the order passed by the respondent no.1-State Government in compliance of the order passed by the learned Single Judge to appoint the appellant, if his date of birth was found to be within the permissible range as on 01st January, 2011, was set aside.

3. A reference to the brief facts of the case is considered necessary. Vide memo dated 13th October, 2011, the District Employment Officer, West Champaran, 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 01st January, 2011, for the Economic Backward Class³[For short the ‘EBC’] category, both males and females. The appellant applied for selection to the said post pursuant to the advertisement dated 13th October, 2011. It is not in dispute that as on 01st January, 2011, the appellant’s age was 39 years 11 months and 27 days. In other words, the appellant qualified the age criteria in terms of the subject advertisement. The records reveal that in pursuance to a letter⁴[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.

4. The appellant appeared for the written examination on 22nd January, 2012. Thereafter, a merit list was prepared for counselling in which his name was placed at Serial No.2. The District establishment prepared a selection list on 04th December, 2012, 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.

5. 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 on 28th August, 2012, which was disposed of vide order dated 07th March, 2013, with a direction issued to the Collector, West Champaran to examine his grievance and pass necessary orders of appointment, in the event the date of birth of the appellant was found to be correct, i.e. 05th January, 1971, in terms of his Matriculation Certificate. On 27th June, 2015, the appellant was appointed to the post of Amin by the District Magistrate West Champaran, Bettiah.

6. 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 and assailing his appointment on the ground that the appellant was overaged in terms of the press communication dated 01st November, 2011. Agreeing with the stand of the respondent No.8, the Division Bench has passed the impugned judgement. The Division Bench was of the opinion that the entire selection process had been carried out on the basis of treating the cut off date as 01st November, 2011. It was 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.

7. Learned counsel for the appellant assails the impugned order on the ground that the Division Bench erred in ignoring the date