SC: Ambiguity in ad for employment can be removed only by the employer

The Hon’ble Supreme Court, on 3rd May 2019, in the matter of The Maharashtra Public Service Commission Through Its Secretary v. Sandeep Shriram Warade And Others observed that essential qualifications for appointment to a post are for the employer to decide. The court can’t delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re-writing of the advertisement for employment.

The Hon’ble Supreme Court observed that:

The essential qualifications for appointment to a post are for the employer to decide. (Para 10)

The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. (Para 10)

The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re­writing of the advertisement.Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same. (Para 10)

The fact that an expert committee may have been constituted and which examined the documents before calling the candidates for interview cannot operate as an estoppel against the clear terms of the advertisement to render an ineligible candidate eligible for appointment. (Para 11)

Therefore, the experience of testing has to be correlated to the manufacturing process which naturally will be entirely different from the testing carried out in the research and development laboratory before the product is released for manufacture and sale in the market. To say that experience in testing of drugs in a research and development laboratory would be at par with the testing done at the time of manufacture before sale cannot be countenanced and has to be rejected. (Para 13)

Copy of judgement: Judgement_03-May-2019

-Tushar Kaushik

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