SHYAM TIWARI vs STATE OF JHARKHAND THROUGH THE CHIEF SECRETARY

2026:JHHC:31968
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (S) No. 693 of 2023
Shyam Tiwari, aged about 26 years, Son of Madan Mohan
Tiwari, Resident of Village-Barkagaon, P.O.-Rajwadih, P.S.-
Daltonganj, District-Palamau, Jharkhand. …… Petitioner
V E R S U S
1. State of Jharkhand through the Chief Secretary,
Government of Jharkhand, having office at Project
Building, Dhurwa, P.O. – Dhurwa, P.S. – Jagarnathpur,
District – Ranchi.

2. Secretary, Personnel, Administrative Reforms &
Rajbhasha Department Government of Jharkhand,
having office at Project Building, Dhurwa, P.O. – Dhurwa,
P.S. – Jagarnathpur, District – Ranchi.
3. Jharkhand Public Service Commission through its
Secretary, having office at Circular Road, P.O. & P.S. –
Lalpur, District – Ranchi.
4. Controller of Examination , Jharkhand Public Service
Commission, having office at Circular Road, P.O. & P.S. –
Lalpur, District – Ranchi. …… Respondents
CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN
….…

For the Petitioner(s) : Mr. Indrajit Sinha, Advocate
Mr. Amritansh Vats, Advocate
Mr. Kumar Abhishek, Advocate
Mr. Arpan Manjash Ekka, Advocate
Mr. Ashish Choudhary, Advocate
Mr. Rahul Ranjan, Advocate
For the Resp.-State : Mr. J.F.Toppo, G.A.-V
Mr. Neil Abhijeet Toppo, A.C. to G.A.-V
For the Resp.-JPSC : Mr. Sanjoy Piprawall, Advocate
Mr. Prince Kumar, Advocate
Mr. Jay Prakash, Advocate
….…..

C.A.V. ON: 27/08/2026 PRONOUNCED ON:02 /11/2026
1. Heard learned counsel for the parties.
2. The instant writ application has been preferred by the
petitioner praying therein for the following reliefs: -
(i) “To consider the case of the Petitioner for appointment to

the post of Class-II officer under EWS category pursuant
th th
to Advertisement No.01/2021 (7 -10 Jharkhand
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2026:JHHC:31968
Combined Civil Services Examination-2021) (Annexure-2)
published by Jharkhand Public Service Commission, since
Petitioner has obtained marks much above than last
selected candidates but his candidature has not been
considered under EWS category, rather, he has been
treated under UNR category even though, he has
submitted the EWS certificate alongwith Income Certificate
issued from Competent Authority at the time of document
verification and he was allowed to sit in the interview
process without any objection by the Jharkhand Public
Service Commission ;
3. The brief fact of the case is that an advertisement was
published by the Jharkhand Public Service Commission
hereinafter referred as ‘JPSC’, inviting eligible candidates for
appointment on Class-II Posts (Civil Services), pursuant thereto,
the petitioner has filled-up the examination form and appeared
in the examination. He has been declared successful in
preliminary test examination, thereafter, he has again asked to
fill-up the application form for appearing in the mains
examination, wherein, he has applied under EWS category.
Thereafter, he was declared successful in the mains examination
and was called for verification of his documents, which was
scheduled on 14.05.2022 and subsequently, he was also called
for interview, which was scheduled on 15.05.2022.
4. Just a day before interview i.e. on 14.05.2022, he has
submitted all his documents including EWS certificate and
educational certificates etc., before the officials of JPSC, which
was duly accepted by the JPSC, therefore, he was allowed to sit
in the interview on 15.05.2022.
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2026:JHHC:31968
5. On 31.05.2022, the result was published, wherein, his
name was not found place, subsequently, when the marks
statement and cut off marks category wise was published, the
petitioner came to know that he had obtained total 627 marks;
however, the cut off marks in EWS Category was 612 marks. In
the remark column of the marks statement issue by the JPSC,
the reason for non-consideration was mentioned as “ Candidate
considered under UNR (Not Selected), reason for non-selection
was Rule – 26 of Jharkhand Combined Civil Services Examination
Rule, 2021 , and Clause – 22 of the Advertisement. Further, in the
explanation column, it is mentioned that the candidate has
uploaded the EWS certificate issued on 06.04.2021, which is
after the closing date of the online application.
Submission on behalf of the petitioner: -
6. Learned Counsel of the petitioner contended that the
petitioner even after obtaining higher marks than the last
selected candidate in his category has not been selected; rather,
the candidature of the petitioner was considered under UNR
category on the ground that he has submitted the EWS certificate
issued on 06.04.2021 which is after the closing date of online
application form of Preliminary Test examination (PT).
7. It was further contended that a candidate has to upload
their EWS certificates before the closing date of application form
for the Mains Examination, which was 25.02.2022 as such he
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2026:JHHC:31968
has rightly uploaded the EWS certificate before the cutoff date
prescribed in terms of the Jharkhand Combined Civil Services
Examination Rule, 2021 .

8. Learned Counsel of the petitioner further contended that
as per the Proviso of Rule -26 of Jharkhand Combined Civil
Services Examination Rule, 2021 , it is specifically mentioned that
Economically Weaker Section (EWS) candidates shall submit
their Income and Assets certificate (Certificate of Eligibility) at
the time of submission of detailed application form of the Mains
(Written Examination).

9. It has been further contended that there is no allegation
by the JPSC that the petitioner has not submitted his EWS
certificate in proper format as per the circulars issued by the
State Government as well as terms of the Advertisement.
10. It was also contended that the Respondent-JPSC is
considering the cut-off date as last date of filling-up the
application form for the PT Examination, which was 21.03.2021
and has not considered the proviso of Rule – 26 of Jharkhand
Combined Civil Services Examination Rule, 2021 , which has
specifically dealt with the EWS candidates and last date of
submission of EWS Certificate.
Further, it was contended that in clause – 7 (c)(ix) of the
Advertisement, it is specifically mentioned that the caste
certificate/ EWS certificate has to be produced at the time of
4

2026:JHHC:31968
document verification, which was duly complied by the petitioner
and the same was accepted by the JPSC, therefore, he was
allowed to appear in the interview, which was scheduled on next
date of document verification.
11. Further, it was contended that the JPSC has wrongly
interpreted clause – 22 of the Advertisement, wherein, the only
condition mentioned was that a candidate must be having all
desired certificates before the last date of filling-up of the
application form mentioned in the Advertisement, which the
petitioner is having.
Further, it was contended that in the said clause – 22 of
the Advertisement, no consequences have been mentioned for
not having desired certificates on the last date of filling-up the
application form.
12. It was further contended that from the bare perusal of
Rule – 26 including its Proviso of Jharkhand Combined Civil
Services Examination Rule, 2021 read with clause – 22 of the
Advertisement, it can be very much interpreted that so far as
EWS candidate is concerned; the Income and Assets certificate
is required to be submitted at the time of submission of detailed
application form of Mains (written) examination, which has been
done by the petitioner and he had the certificate prior to the last
date of filling-up the application form for the mains examination;
as such, his candidature should have been considered under
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2026:JHHC:31968
EWS Category and should have been recommended for
appointment as he has obtained higher marks than the last
selected candidate in his category.

13. It was also contended on behalf of the learned counsel
of the petitioner that the Recruitment Rules always prevail over
the Advertisement and in the present case, the Recruitment
Rules is very clear that the cut-off date for submission of the
EWS Certificate was last date of filing-up the detailed application
form for Mains (written) Examination.
14. Ld. Counsel of the petitioner has relied upon the
Judgement passed by the Hon’ble Supreme Court in the case of
Ashish Kumar v. State of Uttar Pradesh & Ors . reported in (2018)
3 SCC 55 , Malik Mazhar Sultan & Anr. V. UP Public Service
Commission & Ors . reported in (2006) 9 SCC 507, ESI Corporation
V. Union of India & ors. reported in (2022) 11 SCC 392.
In all these aforesaid judgements, it has been held that
it is a settled principle of service jurisprudence that in the event
of conflict between a statement in an advertisement and service
regulations, the latter shall prevail.
Submission on behalf of the Respondents: -
15. The Respondent-JPSC has filed its counter affidavit by
taking the stand that on the date of verification of documents,
the petitioner in support of his claim for extending the benefit of
reservation under EWS category has submitted the EWS
6

2026:JHHC:31968
certificate dated 06.04.2021 issued by the Circle Officer, Sadar
Medininagar, Palamau. Further, the stand was taken that the
same certificate was uploaded by the petitioner in the online
application form.
16. Further it was contended on behalf of the Respondent-
JPSC that from the perusal of the Advertisement for extending
the benefit of reservation to EWS category candidates, the
requirement was to produce the EWS certificate in proforma as
mentioned in Clause – 7 (iii) of the Advertisement and the same
EWS Certificate must be issued up to the last date of submission
of online application form i.e. 21.03.2021.
17. It was also contended on behalf of the Respondent-JPSC
that the EWS certificate produced by the petitioner has been
issued on 06.04.2021 i.e. after the last date of submission of the
application form; as such, the same is not valid for extending the
benefit of reservation to the petitioner in terms of the
advertisement as well as Examination Rules, 2021.

18. Accordingly, the candidature of the petitioner has been
considered under unreserved category; rather than EWS
category and could not be declared successful for appointment
as he obtained lesser marks than the last selected candidate of
unreserved category.
19. Lastly, the reasons have been disclosed to the petitioner
in the marksheet uploaded in the website of JPSC with the
7

2026:JHHC:31968
remark that “candidate has uploaded EWS certificate issued on
06.04.2021, which is after the closing date of online application” .
20. It was further contended that since the petitioner has
failed to upload the valid EWS certificate in terms of the
advertisement and Examination Rules, 2021 before the last date
of submission of online application form of the preliminary test
examination, hence, the benefit of reservation could not be
extended to the petitioner.
21. Learned Counsel of the Respondent-JPSC has relied
upon the Judgements of the Hon’ble Supreme Court in the case
of Divya V. Union of India & Ors . reported in (2024) 1 SCC
448 .
ANALYSIS
22. Learned Counsels of the parties have heavily relied upon
the Examinations Rules, 2021 as well as the clauses of the
Advertisement; the same are being discussed hereinbelow.
23. The Clause – 26 of Examination Rule, 2021 is quoted
-
hereinbelow:
“26. Candidates seeking reservation/relaxation benefits available
for Scheduled Castes/Scheduled Tribes/Extremely Backward
Classes (Annexure-I)/Backward Classes (Annexure-II)/
Economically Weaker Section(EWS) /PwBD/Ex-servicemen must
ensure that they are entitled to such reservation/relaxation as per
eligibility prescribed in the rules. They should also be in possession
of all the requisite certificates in the prescribed format in support of
their claim as stipulated in the rules for such benefits, and these
certificates should be dated not later than the closing date of the
application of the examination.
Provided further that Economically Weaker Section
(EWS) candidates shall submit their 'Income and Asset
Certificate (certificate of eligibility) at the time of submission
8

2026:JHHC:31968
of Detailed Application Form of the Main (written)
Examination . "The Income and Asset Certificate of the applicant
will be applicable as per the Circular issued by the Department of
Personnel, Administrative Reforms and Rajbhasha.”
Emphasis Supplied

24. The relevant clauses of the Advertisement are quoted
hereinbelow: -
Clause 7. आर Ɨ ण का लाभ -

a) आर Ɨ ण का लाभ केवल झारख Ƿ रा Ǜ के ˕ ायी िनवासी को ( रा Ǜ सरकार के प ũ ांक -
1754 िदनांक -25.02.2019 के अनुसार ) झारख Ƿ रा Ǜ के स Ɨ म Ů ािधकार यथा
िजलादंडािधकारी / अपर दंडािधकारी / उपायु ƅ / अपर उपायु ƅ / अपर समाह ȅ ा Ŋ / Ů थम
ŵ ेणी दंडािधकारी / अनुमंडल दंडािधकारी / काय Ŋ पालक दंडािधकारी / सहायकसमाह ȅ ा Ŋ
एवं सहायक दंडािधकारी / अंचल अिधकारी म Ő से िकसी एक पदािधकारी Ȫ ारा िनग Ŋ त जाित
Ů माणप ũ के आधार पर ही देय होगा।
b) जाित Ů माणप ũ की मूल Ů ित अ ȶ व ŎƗ ा के समय स ȑ ापन Ů िकया के दौरान Ůˑ ुत करना
अिनवाय Ŋ होगा अ Ɋ था आर Ɨ ण का लाभ देय नही होगा।
c) जाित Ů माणप ũ हेतु िव ˑ ृत िनदेश िन ɻ वत् है
(i) अनुसूिचतजनजाित / अनुसूिचतजाित :-
झारख Ƿ रा Ǜ के अनुसूिचत जनजाित एवं अनुसूिचतजाित के उ ʃ ीदवारों को आर Ɨ ण का
लाभ कािम Ŋ क , Ů शासिनक सुधार तथा राजभाषा िवभाग , झारख Ƿ के प į रप ũ सं ƥ ा 1754
-25.02.2019 -IV
िदनांक Ȫ ारा िनधा Ŋį रत िविहत Ů प ũ म Ő झारख Ƿ रा Ǜ के स Ɨ म Ů ािधकार
Ȫ ारा िनग Ŋ त जाित Ů माणप ũ के आधार पर ही देय होगा। संबंिधत प į रप ũ एवं िविहत Ů प ũ
आयोग के वेबसाईट www.jpsc.gov.in परउपल ɩ है।

(ii) अ ȑ ंत िपछड़ा वग Ŋ -1 एवं िपछड़ा वग Ŋ -II :-
-1 -II
झारख Ƿ रा Ǜ के अ ȑ ंत िपछड़ा वग Ŋ एव िपछड़ा वग Ŋ कोिट के उ ʃ ीदवारों को आर Ɨ ण
का लाभ कािम Ŋ क , Ů शासिनक सुधार तथा राजभाषा िवभाग , झारख Ƿ के प į रप ũ सं ƥ ा -
1754 िदनांक -25.02.2019 Ȫ ारा िनधा Ŋį रत िविहत Ů प ũ -VI के साथ Ů प ũ - XI ( कीमीलेयर
रिहत ) म Ő झारख Ƿ रा Ǜ के स Ɨ म Ů ािधकार Ȫ ारा िनग Ŋ त जाित Ů माणप ũ के आधार पर ही
देय होगा। संबंिधत प į रप ũ एव ' िविहत Ů प ũ आयोग के वेबसाईट www.jpsc.gov.in
परउपल ɩ है।


(iii) आिथ Ŋ क ŝ प से कमजोरवग Ŋ के िलए
कािम Ŋ क , Ů शासिनक सुधार तथा राजभाषािवभाग Ȫ ारा झारख Ƿ सरकार की िसिवल सेवाओं
एवं पदों पर सीधी िनयु İƅ यों म Ő आिथ Ŋ क ŝ प से कमजोर वग Ŋ के िलए देय आर Ɨ ण हेतु िनग Ŋ त
संक ʙ सं ƥ ा -1433 िदनां क -15.02.2019 के आलोक म Ő िविहत Ů प ũ ( प į रिश ʼ -1) म Ő
झारख Ƿ रा Ǜ के स Ɨ म Ů ािधकार Ȫ ारा िनग Ŋ त Ů माणप ũ के आधार पर ही देय होगा।
www.jpsc.gov.in .
संबंिधत संक ʙ एवं िविहत Ů प ũ आयोग के वेबसाईट पर उपल ɩ
है।
Clause 22.( ग ). आवेदक यह सुिनि ʮ त कर Ő गे की सभी वांिछत Ů माण प ũ उनके पास आवेदन
भरने हेतु िव ǒ ापन म Ő िनधा Ŋį रत अंितम ितिथ के बाद का नहीं होना चािहए।
Clause22.( স ). Online Application म Ő अ ɷ थ Ŏ Ȫ ारा दी गई सूचना के आधार पर उनकी
अ ɷ िथ Ŋ ता सुिनि ʮ त की जाएगी। अ ɷ थ Ŏ Online Application भली - भाँित िव ǒ ापन म Ő
िनिहत Ů ावधान एवं िनद ő श के अनुसार ही भरे। एक बार Online Application म Ő की गई
9

2026:JHHC:31968
Ů िवि ʼ (Entry) के उपरा ȶ उसे अंितम ŝ प से Submit करने के प ʮ ात् िकसी भी तरह के
प į रवत Ŋ न का अनुरोध ˢ ीकाय Ŋ नहीं होगा।
Clause 22. ( द ) आवेदन भरते समय आवेदक शै Ɨ िणक यो ƶ ता से संबंिधत िववरण उम
( ) , ,
संबंधी Ů वेिशका मैिट Ō क Ů माण प ũ मेिडकल बोड Ŋ Ȫ ारा िनग Ŋ तिद ʩ ांगता Ů माण प ũ जाित
Ů माण प ũ , भूतपूव Ŋ सैिनक Ů माण प ũ , खे ʋ ुद संबंधी Ů माण प ũ ऑनलाइन (online)
आवेदन प ũ म Ő िनधा Ŋį रत कंिडकाओंम Ő अव ʴŮ िवि ʼ कर Ő गे। अंतवीं◌ी Ɨ ा के समय जांच के
कम म Ő उपरो ƅ संबंिधत Ů माण प ũ की मूल Ů ित Ůˑ ुत करना अिनवाय Ŋ होगा अ Ɋ था
अ ɷ िथ Ŋ ता र Ȟ कर दी जाएगी तथा इसके िलए आवेदक ˢ यं िज ʃ ेदार होंगे।“

25. The proviso of Clause – 26 of Examination Rule, 2021 is
very much clear that the candidates claiming the reservation
under EWS category shall submit their Income and Assets
certificate (Certificate of Eligibility) at the time of submission of
detailed application form of the mains (written examination).
26. It is an admitted case of the petitioner that he had
submitted his Income and Assets certificate issued on
22.03.2021 at the time of filling-up the form of Mains
Examination.
27. The last date of filling-up the application form for the
Mains Examination was 25.02.2022; as such, at the time of
filling-up the application form for Mains Examination;
admittedly, the petitioner is having the eligibility certificate for
claiming the benefit of reservation under EWS Category.
28. Further, the clause-7 of the Advertisement provides that
the candidates must submit their certificates at the time of
interview and document verification as per the claim mention in
the online application form, further the said clause provides that
the candidate are required to submit the EWS certificate in
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2026:JHHC:31968
prescribed proforma issued by the office of Deputy
Commissioner/ Sub Divisional Officer/ Circle Officer.
29. Clause – 22 ( ग ) of the Advertisement provides that a
candidate must be having all desirable certificates at the last
date of filling-up of application form.

30. There is no dispute that the EWS certificate was issued
in prescribed proforma from the competent authority in terms of
the advertisement and the only objections/reasons for rejection
mentioned by the JPSC is that the petitioner has uploaded the
EWS certificate dated 06.04.2021 which is after the closing date
of online application form.
31. However, the stand of the JPSC that the cut -off date for
having the EWS certificate is the last date of filling-up the online
application form at the time of PT Examination, is not at all
tenable with respect to the petitioner, who has applied under
EWS category, since as per the proviso of Clause – 26 of
Examination Rule, 2021 the candidates claiming for EWS
reservation has to submit their Income and Assets Certificate at
the time of submission of detailed application form for the mains
examination, which has admittedly been complied by the
petitioner.
32. The Law is well settled that a is intended to limit
proviso
the enacted provision so as to except something which would
have otherwise been within it or in some measure to modify the
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2026:JHHC:31968
enacting clause. Sometimes a proviso may be embedded in the
main provision and becomes an integral part of it so as to amount
to a substantive provision itself . Therefore, a proviso cannot
always be subordinate to the main section and in cases like the
present it can represent different intention of the draftsman The
Hon’ble Apex Court in the case of S. Sundaram Pillai v. V.R.
Pattabiraman , reported in (1985) 1 SCC 59 , has discussed in
length the purpose of a proviso. The relevant observations of the
Hon’ble Supreme Court contained in Paras 30, 35, 36, 37 and 43
are reproduced hereinbelow: -
“30. Sarathi in Interpretation of Statutes at pages 294-295 has
collected the following principles in regard to a proviso:
(a)When one finds a proviso to a section the natural presumption is
that, but for the proviso, the enacting part of the section would have
included the subject-matter of the proviso.
(b)A proviso must be construed with reference to the preceding parts
of the clause to which it is appended.
(c)Where the proviso is directly repugnant to a section, the proviso
shall stand and be held a repeal of the section as the proviso speaks
the latter intention of the makers.
(d)Where the section is doubtful, a proviso may be used as a guide
to its interpretation: but when it is clear, a proviso cannot imply the
existence of words of which there is no trace in the section.
(e)The proviso is subordinate to the main section.
(f)A proviso does not enlarge an enactment except for compelling
reasons.
(g)Sometimes an unnecessary proviso is inserted by way of
abundant caution.
(h)A construction placed upon a proviso which brings it into general
harmony with the terms of section should prevail.
(i)When a proviso is repugnant to the enacting part, the proviso will
not prevail over the absolute terms of a later Act directed to be read
as supplemental to the earlier one.
(j)A proviso may sometimes contain a substantive provision.
35. A very apt description and extent of a proviso was given by Lord
Oreburn in Rhondda Urban District Council v. Taff Vale Railway
Co. [1909 AC 253 : 100 LT 713 (HL)] where it was pointed out that
insertion of a proviso by the draftsman is not always strictly adhered
to its legitimate use and at times a section worded as a proviso may
wholly or partly be in substance a fresh enactment adding to and not
merely excepting something out of or qualifying what goes before. To
the same effect is a later decision of the same Court
in Jennings v. Kelly [1940 AC 206 : (1939) 4 All ER 464 : 162 LT 1
(HL)] where it was observed thus:
“We must now come to the proviso, for there is, I think, no doubt that,
in the construction of the section, the whole of it must be read, and a
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2026:JHHC:31968
consistent meaning, if possible, given to every part of it. The words
are:... ‘provided that such licence shall be granted only for premises
situate in the ward or district electoral division in which such
increase in population has taken place...’ There seems to be no doubt
that the words “such increase in population” refer to the increase of
not less than 25 per cent of the population mentioned in the opening
words of the section.”
36. While interpreting a proviso care must be taken that it is used to
remove special cases from the general enactment and provide for
them separately.
37. In short, generally speaking, a proviso is intended to limit the
enacted provision so as to except something which would have
otherwise been within it or in some measure to modify the enacting
clause. Sometimes a proviso may be embedded in the main provision
and becomes an integral part of it so as to amount to a substantive
provision itself.
43. We need not multiply authorities after authorities on this point
because the legal position seems to be clearly and manifestly well
established. To sum up, a proviso may serve four different purposes:
(1) qualifying or excepting certain provisions from the main
enactment:
(2) it may entirely change the very concept of the intendment of the
enactment by insisting on certain mandatory conditions to be fulfilled
in order to make the enactment workable:
(3) it may be so embedded in the Act itself as to become an integral
part of the enactment and thus acquire the tenor and colour of the
substantive enactment itself; and
(4) it may be used merely to act as an optional addenda to the
enactment with the sole object of explaining the real intendment of
the statutory provision .”
33. Thus, from bare perusal of proviso of Clause – 26 of the
Examination Rules, 2021, it is clear that there is no requirement
of EWS certificate to be produced prior to the last date of
submission of application form for PT Examination; rather in the
proviso, it is clearly mentioned that the candidate claiming the
EWS reservation has to submit their certificate prior to the last
date of filling-up the detailed application form of the mains
(Written Examination), which has admittedly been complied by
the petitioner.

34. So far as the Judgement of Hon’ble Supreme Court in
the case of Divya (Supra) is distinguishable on facts. In the said
case, the requirement to possess the Income and Assets
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certificate as on the closing date of the application form was
expressly prescribed by the Civil Services Examination Rules,
2022 ; however in the present case, the Proviso of Clause – 26 of
Examination Rules, 2021 expressly provides that the candidate
claiming the reservation of EWS shall have to submit his Income
and Assets certificate at the time of submission of detailed
application form of Mains Examination.
35. The Hon’ble Supreme Court in the case of Malik
Mazhar Sultan v. U.P. Public Service Commission , reported
in (2006) 9 SCC 507, has categorically held that recruitments to
service has to be made strictly in accordance with the rules and
advertisement cannot override the rules to create any right in the
favour of a candidate. Therefore, if there is any error in the
advertisement which makes it inconsistent with the rules, the
recruitment rules shall prevail.
The relevant observations of the court in para 21 is
reproduced hereinbelow:-
21. The present controversy has arisen as the advertisement issued
by PSC stated that the candidates who were within the age on 1-7-
2001 and 1-7-2002 shall be treated within age for the examination.
Undoubtedly, the excluded candidates were of eligible age as per the
advertisement but the recruitment to the service can only be made in
accordance with the Rules and the error, if any, in the advertisement
cannot override the Rules and create a right in favour of a candidate
if otherwise not eligible according to the Rules. The relaxation of age
can be granted only if permissible under the Rules and not on the
basis of the advertisement. If the interpretation of the Rules by PSC
when it issued the advertisement was erroneous, no right can accrue
on basis thereof. Therefore, the answer to the question would turn
upon the interpretation of the Rules .”
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36. The Hon’ble Supreme Court in the case of Ashish
Kumar v. State of U.P ., reported in (2018) 3 SCC 55 following
its earlier decision in the case of Malik Mazhar (supra) , has again
held that for a candidate to secure an appointment, he has to be
eligible as per the rules and therefore, if the advertisement is
contrary to the rules, the rules shall prevail. The relevant
observations of the Hon’ble Court in para 27 is reproduced
hereinbelow: -
“27. Any part of the advertisement which is contrary to the statutory
rules has to give way to the statutory prescription. Thus, looking to
the qualification prescribed in the statutory rules, the appellant fulfils
the qualification and after being selected for the post denying
appointment to him is arbitrary and illegal. It is well settled that
when there is variance in the advertisement and in the statutory
rules, it is the statutory rules which take precedence. In this context,
reference is made in the judgment of this Court in Malik Mazhar
Sultan v. U.P. Public Service Commission [Malik Mazhar
Sultan v. U.P. Public Service Commission, (2006) 9 SCC 507 : 2006
SCC (L&S) 1870] . Para 21 of the judgment lays down the above
proposition which is to the following effect: (SCC p. 512)
“21. The present controversy has arisen as the advertisement issued
by PSC stated that the candidates who were within the age on 1-7-
2001 and 1-7-2002 shall be treated within age for the examination.
Undoubtedly, the excluded candidates were of eligible age as per the
advertisement but the recruitment to the service can only be made in
accordance with the Rules and the error, if any, in the advertisement
cannot override the Rules and create a right in favour of a candidate
if otherwise not eligible according to the Rules. The relaxation of age
can be granted only if permissible under the Rules and not on the
basis of the advertisement. If the interpretation of the Rules by PSC
when it issued the advertisement was erroneous, no right can accrue
on basis thereof. Therefore, the answer to the question would turn
upon the interpretation of the Rules .”
37. That the Hon’ble Apex Court in the case of ESI Corpn.
v. Union of India, reported in (2022) 11 SCC 392 taking into
consideration its earlier decisions in the case of Malik Mazhar
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2026:JHHC:31968
(supra) and Ashish Kumar (supra ) have reiterated that it is now
a settled principle that when there is a conflict between
advertisement and the rules, the rules shall take precedence. The
relevant observations of the Hon’ble Court is reproduced
hereinbelow:-
“20. The advertisements issued by the appellant mentioned that
the DACP scheme would be applicable for its recruits. However, it
is a settled principle of service jurisprudence that in the event of a
conflict between a statement in an advertisement and service
regulations, the latter shall prevail. In Malik Mazhar Sultan v. U.P.
Public Service Commission [Malik Mazhar Sultan v. U.P. Public
Service Commission, (2006) 9 SCC 507 : 2006 SCC (L&S) 1870]
(“Malik Mazhar Sultan”) a two-Judge Bench of this Court clarified
that an erroneous advertisement would not create a right in favour
of applicants who act on such representation. The Court considered
the eligibility criteria for the post of Civil Judge (Junior Division)
under the U.P. Judicial Service Rules, 2001 against an erroneous
advertisement issued by the U.P. Public Service Commission and
held : (SCC p. 512, para 21)
“21. The present controversy has arisen as the advertisement
issued by PSC stated that the candidates who were within the age
on 1-7-2001 and 1-7-2002 shall be treated within age for the
examination. Undoubtedly, the excluded candidates were of
eligible age as per the advertisement but the recruitment to the
service can only be made in accordance with the Rules and the
error, if any, in the advertisement cannot override the Rules and
create a right in favour of a candidate if otherwise not eligible
according to the Rules. The relaxation of age can be granted only if
permissible under the Rules and not on the basis of the
advertisement. If the interpretation of the Rules by PSC when it
issued the advertisement was erroneous, no right can accrue on
basis thereof. Therefore, the answer to the question would turn
upon the interpretation of the Rules.”
21. In Ashish Kumar v. State of U.P. [Ashish Kumar v. State of
U.P., (2018) 3 SCC 55 : (2018) 1 SCC (L&S) 464] a two-Judge Bench
of this Court followed the decision in Malik Mazhar Sultan [Malik
Mazhar Sultanv. U.P. Public Service Commission, (2006) 9 SCC 507
: 2006 SCC (L&S) 1870] in interpreting an advertisement issued by
the Director, Social Welfare Department, Uttar Pradesh for the
position of a psychologist. This Court declined to give precedence to
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2026:JHHC:31968
the erroneous qualifications prescribed in the advertisement
against the relevant recruitment rules and held : (Ashish Kumar
case [Ashish Kumar v. State of U.P., (2018) 3 SCC 55, para 27 :
(2018) 1 SCC (L&S) 464] , SCC p. 64, para 27)
“27. Any part of the advertisement which is contrary to the
statutory rules has to give way to the statutory prescription. Thus,
looking to the qualification prescribed in the statutory rules, the
appellant fulfils the qualification and after being selected for the
post denying appointment to him is arbitrary and illegal. It is well
settled that when there is variance in the advertisement and in the
statutory rules, it is the statutory rules which take precedence .”

38. It is a settled principle of law, as enunciated by the
Hon’ble Supreme Court in the decisions referred to hereinabove,
that where there exists any inconsistency or contradiction
between the terms of an Advertisement and the statutory Rules
governing the recruitment; the Rules shall prevail and take
precedence over the Advertisement.
39. In the present case, however, this Court finds no real
conflict or contradiction between the Examination Rules, 2021
and the Advertisement. The proviso of Clause 26 of the
Examination Rules, 2021 is clear and unambiguous in
prescribing the last date for submission of the EWS Certificate.
Thus, where the Rules specifically prescribe a condition of
eligibility, such prescription reflects the intent of the rule-making
authority and the object sought to be achieved thereby.
40. This Court is, therefore, of the considered view that the
condition so prescribed under proviso of Clause 26 of the
Examination Rule, 2021 must be given full effect and shall
prevail over any other term or condition.
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41. Even otherwise, assuming any divergence were to exist,
the Examination Rules, 2021 would take precedence over the
Advertisement in view of the settled principle noted above.

42. Having regards to the aforesaid discussion, this Court
holds that the action of JPSC by not recommending the
candidature of petitioner for appointment is arbitrary, and
accordingly, the respondent-JPSC is directed to treat the
candidature of petitioner under EWS category and recommend
him for appointment to State Government within a period of 6
weeks and upon the receipt of such recommendation made by
JPSC as directed above, the respondent-State is directed to issue
appointment letter to the petitioner within a further period of 2
weeks.
43. Accordingly, the instant writ application stands allowed.
Pending I.As, if any, also stands disposed of.

(Deepak Roshan, J.)
Dated: 02 /11/2026
Amardeep/
A.F.R
Uploaded on
3.11.2026




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