Error While Issuing Recruitment Notice Does Not Create Vested Right In Candidate: Delhi High Court
The Court said that once a vacancy under the reserved category does not exist, a person cannot be considered against the reserved category vacancy which does not exist.
The Delhi High Court has observed that a person cannot be permitted to stake a claim for appointment solely on the basis of a mistake committed while issuing a recruitment notice.
The Division Bench of Justice Anil Kshetrapal and Justice Amit Mahajan observed, “The respondent is not entitled to age relaxation because under the UR category, for which the vacancies were advertised, the Respondent has already crossed the maximum age for appointment. Once, a vacancy under the reserved category does not exist, the Respondent cannot be considered against the reserved category vacancy, which, in fact, does not exist…Similarly, the Respondent cannot be permitted to stake a claim for appointment solely on the basis of a mistake committed while issuing recruitment notice. She may be entitled to some amount of damages, however, the same has not been claimed.”
Advocate Ajay Pal Singh Kullar appeared for the Petitioner, while SPCG Abhishek Saket appeared for the Respondents.
Facts of the Case
The Petitioner is the National Institute of Tuberculosis and Respiratory Diseases, which has filed the present writ petition assailing the order passed by the Central Administrative Tribunal, Principal Bench, New Delhi in an Original Application.
The genesis of the dispute arose from a recruitment notice issued by the Petitioner-Institute for various posts, including HMTS Dietary (Kitchen Staff), as the requisition was sent by the Institute, for inviting applications for 10 posts of HMTS Dietary (Kitchen Staff), out of which, 05 were of UR category, 03 were of OBC category, 01 of ST Category and 01 of EWS category.
The recruitment was to be carried out by Hindustan Life Care Limited, an outsourced agency. While issuing a recruitment notice, an error was committed, and it was reflected that applications have been invited for 10 posts, including 03 post of the SC category. The Respondent belonged to the SC category and applied for the said post and was declared topper in the written examination.
Subsequently, it was found that there was no post of the SC category and that, for the UR category, the Respondent was overage. Thus, the Respondent No.1 was earlier issued an offer of appointment; however, the same was withdrawn, as she was overage. Thereafter, the Respondent filed the OA before the Tribunal, which was contested by the Petitioner.
Contention of the Parties
It was submitted by the Petitioner that the Respondent cannot be granted appointment, as she was overage for recruitment in the UR category, and there was no vacancy available in the SC category. It was submitted that an error committed by an outsourced agency, while issuing a recruitment notice, cannot be used to force the Petitioner to recruit the Respondent, particularly when no vacancy for the SC category exists.
Per contra, the Respondent submitted that a vested right in the Respondent, while issuing an advertisement and an appointment letter, cannot be taken away, and the rules of the game cannot be changed, post selection. It was further submitted that the roster position as of today is legally irrelevant and the Respondent could be considered by granting age relaxation, particularly when she is a topper.
Observation of the Court
“Undoubtedly, there was an error in publishing the recruitment notice; however, that does not create a vested right in favour of the Respondent to seek appointment, when no vacancy for the SC category is available till date,” the Court said.
The Court further said that the judgment of the Supreme Court in Rakhi Ray & Ors. vs. High Court of Delhi and Ors. (2019) goes against the Respondent because the Supreme Court has categorically laid down that any appointment made beyond the number of advertised vacancies is without jurisdiction.
Accordingly, the Court set aside the impugned order passed by the Tribunal and disposed of the Petition.
Cause Title: National Institute of Tuberculosis and Respiratory Diseases v. Ms Shweta & Ors. [Neutral Citation: 2026:DHC:499-DB]
Appearances:
Petitioner: Advocates Ajay Pal Singh Kullar, Jasbir Bidhuri and Prakhar Khanna
Respondents: SPCG Abhishek Saket, Advocates Suresh Sharma, Usha Sharma, Amit Acharya, Abhigyan, Reya Paul and Nidhi Singh.