Error in Advt notice won’t create right for selection: HC

Excelsior Correspondent

SRINAGAR, June 12: The High Court in its well celebrated verdict said an error in advertisement notice for filling up of vacancies cannot override the provisions of the rules and this error would not create any right for selection of those who do not fulfill the prescribed qualification.
Justice Ali Mohammad Magrey decided the three petitions filed by various candidates in a common judgment with the conclusion that the recruitment to service can be made only in accordance with the rules and the error, if any, crept in the advertisement notice cannot override the rules and create a right in favour of a candidate to claim consideration for selection to the exclusion of other eligible candidates.
It is in the year 2015, the Director, Health Services sent a requisition for direct recruitment of vacancies to the Service Selection Board for the post of Junior Anesthesia Assistant, wherein the mode of qualification and recruitment was provided as 10+2 with Science and Diploma in Anesthesia Technology from SMF or any other recognized Institute.
The requisitions were made for District Baramulla, Pulwama, Budgam and Kupwara and on the basis of these requisitions, the Service Selection Board, vide its advertisement notice advertised the posts of Junior Anesthesia Assistant.
Thereafter, by a communication the Directorate of Health Services informed the Secretary to Government, Health & Medical Education Department that due to oversight the requisite qualification for the post of Anesthesia Assistant has been shown in requisition form as 10+2 with Science and Diploma in Anesthesia Technology from SMF or any other recognized Institute. This communication also mentioned that SRO 20 of 1992 does not provide for recruitment rules for the post of Anesthesia Assistant.
The communication further stated that in terms of Government order No. 252- HME of 2012 dated 26th of March, 2012, the method and recruitment to the post of Anesthesia Assistant is 10+2 with Diploma in Anesthesia/ Operation Theatre Technology, however, Degree holders in Anesthesia/ Operation Theatre Technology will be preferred. Accordingly, the Director, Health Services sought necessary clarification and regretted the omission. The Government, on receipt of the said communication, forwarded the same to the Secretary, Service Selection Board under No. HD/NG/232/2015 dated 3 rd of February, 2016.
Thereafter, the Services Selection Board allowed the candidates to participate in the selection process for the post of “Junior Anesthesia Assistant” on the basis of the qualifications prescribed under Government Order No. 252-HME of 2012 dated 26th of March, 2012. Subsequently, on December 30, 2017, a provisional selection list was notified by the Service Selection Board wherein selection was made on the basis of qualifications prescribed under Government Order dated 26th of March, 2012.
Aggrieved thereby, the petitioners filed a representation before the Government which was forwarded to the Service Selection Board under No. HD/NG/43/2018 dated 19th of February, 2018. In response to therepresentation so received, the Service Selection Board addressed a communication to the Government in the month of April 2018 seeking clarification from the Government as to whether the qualification prescribed vide Government Order dated 26th of March, 2012 is applicable for the post of “Junior Anesthesia Assistant”.
The Government, in turn, forwarded the said communication to the Director General, Health Services under communication who informed the Government that there are no recruitment rules for the post of “Junior Anesthesia Assistant” as per existing recruitment rules of SRO 20 of 1992.
The Director General further informed the Government that the qualifications prescribed for the post of “Anesthesia Assistant”, as provided by Government Order No. 252-HME of 2012 dated 26th of March, 2012, be taken as the qualification for the advertised post.
On receipt of these communications, the Government issued a communication in 2018 addressed to the Secretary, Service Selection Board in which the Government instructed the Board that the Board must first appoint applicants who hold Diploma in “Anesthesia Assistant Technology” and in the event candidates with the said qualification are not available, then in such eventuality, the candidates having Diploma in “Operation Theatre Technology” may be considered for appointment.
Aggrieved by communication dated 29th of June, 2018, the respondent Nos. wherein the operation of the communication dated 29th of June, 2018 was stayed in terms of order dated 4th of July, 2018. In between the Government addressed another communication to the Secretary, Service Selection Board under No. HD/Legal/NG/MR-79/2018 dated 3 rd of August, 2018, in terms whereof the Government cancelled/withdrew its earlier communication dated 29th of June, 2018 and instructed the Service Selection Board to make selections against the post of Junior Anesthesia Assistant in accordance with the method of recruitment as laid down in Government Order No. 252-HME of 2012 dated 26th of March, 2018.
It is this communication dated 3rd of August, 2018 that has been called in question by the petitioners in  two writ petition seeking quashment of the same with further relief commanding the Board to accord consideration to the case of the petitioners for their selection against the post of Junior Anesthesia Assistant on the basis of qualification prescribed by the advertisement notice. Justice Magrey after hearing all the parties said, what requires to be stated is that an advertisement notice, inviting applications for filling up vacancies, cannot override the provisions of the statutory rules and that an error in eligibility requirements mentioned in the advertisement, being inconsistent with the rules, would not create any right in favour of candidates seeking consideration for selection to the exclusion of other eligible candidates.
“Applying the ratio of law laid down above to the facts and circumstances of the case on hand, the intending Department, i.e. the Health Department, after noticing the error crept in the qualification prescribed for the post in question in the advertisement notice, directed the Service Selection Board to make selection to the post in question in accordance with the qualification and method of recruitment as laid down in Government Order No. 252-HME of 2012 dated 26th of March, 2012. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription”, Justice Magrey said.