Unconstitutional clauses in recruitment advertisements cannot be enforced, and participation in selection does not validate illegalities.

JUDGMENT :

(Deepak Roshan, J.)

Heard Mr. Indrajit Sinha, learned counsel for the petitioners assisted by Mr. Arpan Mishra and Mr. Divyam AC to SC-IV appearing for the respondent-State.

2. The instant writ application has been preferred by the petitioners praying therein for a direction upon the respondent no.4 and 6 to consider the representation dated 02.02.2022 (Annexure-4), and consequently allow the petitioners for training as directed by the respondent no.3 (Annexure-3).

3. An advertisement bearing Advertisement No. 01 /2016 was published by the State Government for appointment on the post of Home Guards in 18 Blocks in the District of Ranchi. As per the terms and conditions of the Advertisement, the candidates should be the local resident of concerned Block/Village, where appointment was sought to be made. The date for filing up the application forms was in between 15.05.2016 to 30.05.2016. The written examination was held on 28.01.2017 and physical efficiency test was also conducted on 09.02.2017 in Jharkhand Armed Police 1, Doranda, Ranchi.

4. The petitioners who are 58 in numbers have applied under the Bero and Ratu Block. The petitioners are the resident of Itki and Nagri Block. The Itki and Nagri blocks were carved out of Ratu and Bero blocks, but, in the advertisement, no recruitment for Itki and Nagri blocks were to be made, and hence, the petitioners bonafidely believed that they would be covered under the Ratu and Bero blocks and accordingly participated in the selection process. Even the respondents have declared the results of the petitioners on their being successful.

However, it is only at the time of sending the candidates for training, that they on the basis of this discrepancy of their not being local residence of the Ratu and Bero blocks, did not send them up for training, which gave rise to the cause of action to file the present petition.

5. The issues which fall for consideration before this Hon'ble Court are:

(i) Whether the candidates after participating in the selection process can challenge the same ?

(ii) Whether there can be reservations on the basis of local residence ?

(iii) Whether in absence of challenge to the advertisement, the High Court under Article 226 of the Constitution of India would ignore an unconstitutional clause in the advertisement ?

6. Issue No.1

So far as in absence of challenge to the clause in the advertisement which provides for 100 % reservation for local resident of concerned blocks/villages is concerned, there can be no estoppel. Reference may be made in this regard to the judgment passed by the Hon’ble Supreme Court of India reported in (2019) 20 SCC 17 in the case of Dr. (Major) Meeta Sahai Vrs. State of Bihar And Others; wherein at paragraph-17 the Hon’ble Apex Court has held that:-

“17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.”

7. Issue No. 2

In the advertisement published by the State Government, it is clear that it has reserved the post on the basis of the residence. A candidate being a local resident of the concerned blocks/villages would only get employment and the candidates from other blocks/villages would be left out. The same is in violation of Article 16 of the Constitution of India as it restricts from providing equal opportunity to the candidates from participating in the selection process.

Similar issue fell for consideration before the Hon'