Changing Eligibility Criteria Midway Vitiates Entire Recruitment Ab Initio; Mere Participation Of Candidates Neither Creates Estoppel Nor Cures Underlying Illegality: J&K And Ladakh High Court
Deekshitha Sharmile
The High Court of Jammu & Kashmir and Ladakh, Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem, dismissed two writ petitions challenging an order of the Central Administrative Tribunal, Jammu Bench, which had quashed a selection process for the post of Knitting Instructor under the Divisional Cadre Jammu. The Court affirmed that a recruitment exercise is rendered void from its inception where the selecting authority covertly expands eligibility criteria during or after the process or applies qualifications that appear neither in the original advertisement nor in the applicable draft recruitment rules. The Court held that participation in a flawed selection process does not bar an unsuccessful candidate from questioning it, particularly where the illegality is patent and violates the constitutional guarantees of equality and equal opportunity in public employment.
The dispute arose from the recruitment process initiated in 2012 for seven posts of Knitting Instructor in the Divisional Cadre Jammu. The Services Selection Board prescribed the qualification as 10+2 with Diploma in Knitting from ITI. Several candidates applied, including the petitioners and private respondents, and were shortlisted for interviews.
During the interview process, the Board sought clarification from the Indenting Department regarding candidates holding diplomas in textile, textile technology, and handloom technology. The Department responded that prescribed qualifications under recruitment rules should be followed. Subsequently, the Board issued a notification allowing candidates with diplomas in knitting or textile from recognized institutions or ITI to participate.
The respondent challenged the select list published in 2017, alleging that the criteria had been altered midway and ineligible candidates were considered. Petitioners contended that the respondent lacked locus as she did not possess the prescribed qualification and had participated in the process despite knowing the clarification. The Board argued that the respondent’s vocational certificate did not meet recruitment rules. Evidence included advertisement notifications, draft recruitment rules, and qualification certificates. The dispute centered on whether the Board had unlawfully changed eligibility criteria during the process, violating constitutional principles of equality.
On the plea of violation of natural justice, the Court observed that notices were duly issued through registered post and deemed service was complete. It stated that "if service is made through Registered Post, it is deemed to have been made in accordance with law" and that "when notice is sent to the Respondents, but neither the un-served notice nor the acknowledgement cards have so far been received from the Respondents, in such scenario, notice must be deemed to have been served on them." The Court recorded that "the plea raised by the Petitioners regarding non-receipt of the notice is not tenable, as it lacks legal force."
On the absence of statutory recruitment rules, the Court observed that "till the time selection was made, no statutory Recruitment Rules were in place" and that the draft Recruitment Rules prescribed minimum qualification for direct recruitment to the post of Knitting Instructor as "10+2 with Diploma in Knitting/Textile from a recognized Institution/ITI."
On the qualifications of the selected candidates, the Court observed that "the Board not only deviated from the recruitment criteria prescribed under Advertisement Notification, but also not adhered to the draft recruitment Rules, as such plea of the petitioners that no criteria was changed midway is not tenable."
On the incorporation of an un-notified qualification, the Court stated that "neither any clarification nor any notification is placed on record showing that, while aligning the educational qualification for the post of Knitting Instructor with the draft Recruitment Rules, Diploma in Handloom Technology, was added/incorporated" and that the Board "incorporated a qualification which neither finds its mention in the advertisement notification nor in the draft Recruitment Rules, so much so, same is also not notified to the knowledge of all and sundry."
The Court observed that "changing the criteria midway or after the selection process amounts to arbitrary and discriminatory action, being violative of the constitutional principles of equality enshrined under Articles 14 and 16 of the Constitution."
On the legal force of un-notified draft rules, the Court stated that "the un-notified draft Recruitment Rules even cannot be made the basis for the selection and recruitment against a substantive post" and that "such un-notified draft Recruitment Rules legally cannot override the educational qualification or the criteria of selection as notified in the advertisement notification."
The Court relied upon the Supreme Court judgment in Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors., (2025) and noted that "eligibility criteria for being placed in the select list, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness."
On the question of estoppel by participation, the Court observed that "estoppel by participation in the selection process would not come in the way of Respondent No.1 in questioning the selection process which is marred by glaring procedural irregularities, mala fides, inasmuch as violates constitutional provisions palpably apparent on the face of the selection process." It further stated that "the successful candidate possessed the qualification which is neither borne out from the advertisement notification nor prescribed by the draft Recruitment Rules, so much so, same is also not published, therefore, there was no occasion for the unsuccessful candidate to know the criteria of selection, thus, such an unsuccessful candidate cannot be shut out from challenging the process of selection."
The Court held: “In view of the above discussion and legal position on the subject, we are of the opinion that in view of the palpable illegality committed by the Board in adding qualification clandestinely midway the selection process, in that event, the selection and appointment of the Petitioners was a nullity in the eyes of law and, thus, we also hold that no midway change doctrine is applicable to the case on hand on all fours, therefore, the selection being not only outcome of mala fide, but also fails the test of non-arbitrariness under Articles 14 and 16 of the Constitution.”
"We have no hesitation in holding that the illegality and mischief is so discernible and widespread, affecting the result, so as to make it difficult to pick out the candidates who have been unlawfully benefitted or wrongly deprived of their selection, it will neither be possible nor necessary in the present proceedings to thrash the legality of those select lists which are not before us because the challenge is in personam and not in rem."
"We leave it to the competent authority to look into the matter in view of our observations and to take remedial steps within the contours of law. Viewed from any angle, we do not find any illegality or perversity in the impugned Order and Judgment passed by the Tribunal. The same is, thus, upheld. Both these Writ Petitions shall stand dismissed, along with pending CM(s), if any. Interim direction(s), if any, shall stand vacated."
Advocates Representing the Parties
For the Petitioners: Mr Abhinav Sharma, Senior Advocate with Mr Abhirash Sharma, Advocate
For the Respondents: Ms Saliqa Sheikh, Assisting Counsel vice Mr Raman Sharma, AAG; and Mr Dewakar Sharma, Dy. AG
Case Title: Sapna Devi & Anr. v. Sheetal & Ors. c/w J&K Services Selection Board v. Sheetal & Ors.
Case Number: WP (C) No. 628/2022 c/w WP (C) No. 1670/2023
Bench: Justice Sindhu Sharma, Justice Shahzad Azeem
