Recruitment Begins With Advertisement, Not Approval Of Appointment; Subsequent Selection Law Doesn't Govern It: Allahabad High Court
The Allahabad High Court has held that a recruitment process commences on the publication of the advertisement, and not at the later stage of approval of appointment. It held that a law brought into force after the advertisement does not govern a process already set in motion.It further held that where a new Act comes into force after the advertisement but before the selection is finalised,...
The Allahabad High Court has held that a recruitment process commences on the publication of the advertisement, and not at the later stage of approval of appointment. It held that a law brought into force after the advertisement does not govern a process already set in motion.
It further held that where a new Act comes into force after the advertisement but before the selection is finalised, the process already initiated is protected under the Repeal and Savings clause of the New Act.
The question before the Court was whether a recruitment process is to be treated as commencing with the publication of the advertisement or at the stage of consideration by the competent authority, that is, approval of appointment, and what effect would be caused of amendment of rules or enactment of a new Act after the advertisement but before final consideration.
Following the Constitution Bench decision of the Supreme Court in Tej Prakash Pathak and others vs. Rajasthan High Court and others, Justice Saurabh Shyam Shamshery held,
“the Court finds that in given circumstances there would be no difficulty to follow the judgment passed by Constitution Bench of Supreme Court in Tej Prakash Pathak (supra) that recruitment process would commence from the date of advertisement.”
The Director of Higher Education had granted permission to fill 22 posts of Assistant Professor at Digamber Jain Mahavidyalaya, Baraut, Baghpat, an aided minority institution, by letters dated 04.08.2023 and 08.08.2023. The College published advertisements on 08.08.2023 and 12.08.2023. The Uttar Pradesh Education Service Selection Commission Act, 2023 was notified in the State Gazette on 21.08.2023, i.e., after the advertisements had been published.
The permission carried a condition that if the proposed Commission came into existence and the recruitment process consequently changed, the permission would stand cancelled. After earlier rounds of litigation, the Principal Secretary, Higher Education, by order dated 21.04.2025, held that since the advertisements pre-dated the 2023 Act, the selection would continue under the statutory regime in force before that Act came in. That order was challenged by Sunil Kumar Jain, the treasurer of the college's time-barred committee of management.
The Court distinguished the Supreme Court's decisions in Dr. Manoj Kumar Rawat vs. State of U.P. and others and State of U.P. and others vs. Rachna Hills and others, holding them inapplicable. It observed that Rawat concerned a fresh recommendation to change the place of posting of a wait-listed candidate, whereas the present case concerned a selection admittedly commenced by advertisement before the 2023 Act came into force. Rachna Hills was distinguished on the ground, among others, that the present case involved a deemed approval and the protection of the Repeal and Savings clause, features absent there.
Relying on decision of the Supreme Corut in Tej Prakash Pathak and others vs. Rajasthan High Court and others, wherein it was held that a recruitment process begins with the issuance of the advertisement and ends with the filling of the notified vacancies, and that the rules cannot be changed after it has commenced. Since the advertisements were issued before the 2023 Act was enforced, the process was protected under the Repeal and Savings provision, Section 31, of that Act.
“The conditions imposed in permission was in anticipation and as discussed above, the selection process was protected by provisions “Repeal and Savings” of Act, 2023, therefore, such condition has no legal consequence. No candidate has come forward being aggrieved by the impugned decision, therefore, the Court finds that there is no illegality in impugned order dated 21.04.2025. Since advertisements were issued before Act, 2023 was enforced, therefore, procedure applicable earlier vide Act of 2019 was followed and selection process was found to be legal.”
Finding no illegality in the order dated 21.04.2025, the Court dismissed the writ petition.
Case Title: Sunil Kumar Jain v. State of U.P. and 5 Others 2026 LiveLaw (AB) 407
Citation : 2026 LiveLaw (AB) 407
Counsel for Petitioner :- Nipun Singh, Sr. Advocate assisted by Naman Agrawal
Counsel for Respondents :- G.K. Singh, Sr. Advocate assisted by Avneesh Tripathi