Muzaffar Hussain Attar, J. 1. Appellants being aggrieved of the judgment dated 3.5.2000 passed in SWP Nos. 2260/98, 521/98 and 2323/98 have challenged the same in these LPAs which are taken together for disposal. 2. An advertisement notification was issued by Director General of Police inviting applications as per prescribed proforma from the permanent residents of J&K State for the posts of Prosecuting Officers in the J&K Police in the pay scale of 2000-60-2300-EB-75-3000 plus usual allowance as admissible under rules. Minimum educational qualification was prescribed as Law Graduate from any recognized University with minimum two years practice at Bar. It was further provided in the advertisement notification that a candidate should not be more than thirty years and not less than 18 years of age on the first day of January 1997. For male candidate minimum height was prescribed 5 ft 6 inch and chest 32 inches un-expanded (minimum) and 33 = expanded (minimum). The candidates were required to be subjected to physical test and viva voce/personality assessment test. At para (6) of the advertisement notification it was provided that only those candidates who will be found fit in physical measurement test and possessing other prescribed standards will be called for written test. It was further provided that candidates who qualify written test i.e., who get 33% marks (minimum) or above will be called for viva voce/Personality/Assessment Test. The relevant clause of the advertisement notification is reproduced as under: - "6. Only those candidates who will be found fit in physical measurement test and possessing other prescribed standards will be called for written test. Candidates who qualify written test i.e., who get 33 % marks (minimum) or above will be called for viva voce/Personality/Assessment Test." 3. This notification was issued in the year 1997 and last date for receipt of applications were fixed as Nov. 30th 1997. Re-advertisement notification was issued in the year 1998 in which applications were invited from eligible candidates for the post of Prosecuting officers in J&K Police in the pay scale of 6500-200-10500 plus usual allowance. It was further notified that candidates who have already applied for the post in response to earlier notification need not to apply again. The educational qualification which the candidate would possess was Law Graduate from any recognized University with minimum of two years practice at Bar. The eligibility conditions as contained in earlier notification were maintained. It was further notified that candidates who have already applied for the post in response to earlier notification need not to apply again. The educational qualification which the candidate would possess was Law Graduate from any recognized University with minimum of two years practice at Bar. The eligibility conditions as contained in earlier notification were maintained. In re-advertisement notification at para (6) the following was provided: - "6. Only those candidates who will be found fit in physical measurement test and possessing other prescribed standards will be called for written test. Candidates who qualify written test i.e., who get 33 % marks (minimum) or above will be called for viva voce/Personality/Assessment Test." 4. Petitioners in SWP No. 2260/98, SWP 2323/98 and SWP 521/99, being eligible for being considered, selected and appointed as Prosecuting Officers also applied. After selection process was over the petitioners were not selected and appointed as Prosecuting Officers filed writ petitions, challenging the selection of some of the selected candidates, who were arrayed as respondents in the three writ petitions and selection was challenged on the following grounds: That though, it was provided in the advertisement notification that only those candidates who qualify in written test by getting 33% marks (minimum) or above, will be called for viva voce/Personality Assessment Test, but the candidates with lesser merit than prescribed in the advertisement notification were called for viva voce/Personality Assessment Test. The respondents/selected candidates were not possessing minimum two years practice at Bar which was one of the eligibility condition and that the selection process was conducted in unfair manner. The official respondents and some of the private respondents filed reply to the writ petitions. The official respondents controverted the allegations made in the writ petitions, but did not specifically deal with the contention of the petitioners that candidates who had secured less than 33% marks in written test were called for viva voce/Personality Assessment Test. In SWP 2323/98 an affidavit was filed in pursuance of court orders by the then Director General of Police. The affidavit so filed by the Director General of Police is reproduced as under:- "I, Gurbachan Jagat, IPS S/o Late Jagat Singh R/o Canal Road, Jammu aged 56 years presently posted as Director General of Police, J&K, Jammu do hereby solemnly affirm and declare as under: - 1. The affidavit so filed by the Director General of Police is reproduced as under:- "I, Gurbachan Jagat, IPS S/o Late Jagat Singh R/o Canal Road, Jammu aged 56 years presently posted as Director General of Police, J&K, Jammu do hereby solemnly affirm and declare as under: - 1. That the present affidavit is being field in pursuance to the directions passed by this Honble High Court on 17th of March, 1999 in SWP No. 2323/98 titled Rajinder Kumar and ors vs. State of J&K and ors. 2. That the applications for the post of Prosecuting Officers in the Police Department were initially invited vide advertisement Notice dated 27th January 1997. Since there was poor response to the advertisement notice, as such the posts were re-advertised vide Advertisement Notice dated 29th January, 1998. In pursuance to the aforesaid two notifications 130 applications in all were received. 3. That keeping in view the facts that a Prosecuting Officer is supposed to discharge onerous duty and has to play an important role in the administration of criminal justice system, as such the department was of the view that in the interest of maintaining the high standard of the service, the candidates having only higher merit be appointed. It was precisely for the reasons that the 2nd Advertisement Notice was issued so that large number of candidates could apply for the post and the department may be in a position to select best suitable candidates. But unfortunately even after second Advertisement Notice the response was not upto the mark. That out of 130 candidates 10 candidates did not choose to participate in the selection process, thereby further brining down the level of competition. 4. That keeping in view the maintenance of high standard in service initially it was mentioned in the Advertisement Notice that candidates must obtain 33% in written to qualify for viva. But due to poor result in written the qualifying percentage in case of General Category was lowered down to 25%. 5. That 46 candidates were selected against 53 posts of Prosecuting officers strictly in accordance with overall merits and cut off merit in General Category was 43 marks out of 110. Copy of select list is annexed as Annexure R1. But due to poor result in written the qualifying percentage in case of General Category was lowered down to 25%. 5. That 46 candidates were selected against 53 posts of Prosecuting officers strictly in accordance with overall merits and cut off merit in General Category was 43 marks out of 110. Copy of select list is annexed as Annexure R1. Keeping in view the poor result the department could re-advertise the posts so as to give chance to onerous candidates, but keeping in view the fact that number of pots of Prosecuting Officers were lying vacant for a consideration length of time, it was decided to fill up 46 posts. The appointment orders were issued in favour of 38 candidates at the first instance after being declared medically fit. 6. That in so far as waiting list is concerned it is humbly submitted that there is no precedent of preparation of waiting list and of course also keeping in view the low merit obtained by the candidates there was no occasion to prepare a waiting list by compromising the high standard required for the services. 7. That the last selected candidate in General Category has secured 43 marks out of 110 i.e., percentage comes to 39% approx. and as such it was not in the interest of service to prepare waiting list and select candidates from that list who were low in merit. It is a settled position of law that if in a selection process no meritorious candidate is found, in that eventuality the department can keep the posts vacant and re-advertise the same instead of filling the same with the candidates who are low in merit. 8. That in the present case list of 46 candidates was issued keeping 7 posts among reserve category vacant, four candidates did not join despite being selected, as such the said posts are also vacant. These vacant posts along with the posts which may be available later on, shall be re-advertised by the department as per requirement so as to select only meritorious candidates which is essential to maintain high standard in the service." 5. These vacant posts along with the posts which may be available later on, shall be re-advertised by the department as per requirement so as to select only meritorious candidates which is essential to maintain high standard in the service." 5. The writ court vide its order dated 27th May 1999 passed in SWP No. 2323/98 directed that till record is produced and examined by the Court twelve vacancies which have fallen vacant shall not be re-advertised by the respondents, save and except without the prior permission of the court. It was, however, provided in the said order that in case respondents on their own want to appoint twelve candidates against such vacancies then the pendency of these writ petitions and or this order will not come in their way so long they do it strictly as per merit of petitioners and other candidates who have appeared in the interview. 6. After hearing the ld. counsel for parties, the Learned Single Judge, disposed of the writ petitions by given directions in respect of some of the private respondents. The ld. Single Judge did not allow the writ petitions as prayed for by the writ petitioners. 7. Being aggrieved of the judgment of the ld. Single Judge dated 3rd May 2005, LPA 251/2000 arising out of SWP No. 2323/98 came to be filed by Yogesh Bamba; LPA No. 255/2000 arising out of SWP No. 2260/98 came to be filed by Yogesh Nagpal and Kishore Kuamr Sharma and LPA No. 256/2000 arising out of SWP 521/99 came to be filed by Mrs. Chander Lekha Gupta. Other writ petitioners chose not to challenge the judgment. 8. Heard learned counsel for the parties and considered the matter. 9. The learned counsel for respondents, also produced award list prepared by official respondents in respect of candidates who had competed for being selected and appointed to the post of prosecuting officers. The undisputed facts which are writ large on the face of the record and are recorded in the impugned judgment at page 2 in respect of availability of posts is reproduced as under:- "During the hearing of the writ petitions, learned counsel appearing for the parties were not at variance that in all there were 53 posts, which were to be filled. Against these 46 candidates were selected and out of these selected candidates , 34 candidates have joined. Against these 46 candidates were selected and out of these selected candidates , 34 candidates have joined. Again six candidates after joining have left the job. Thus in all 28 candidates had joined, thus leaving 25 vacancies, out of total number of vacancies, whereas from amongst selected candidates 18 either did not join or left the job after joining." 10. Availability of 25 vacancies because of non joining/deserting the posts has not been even disputed at the hearing of the appeals also by the ld. counsel for the official respondents. The last selected candidate had obtained 43 points. The appellant in LPA No. 251/2000 Yogesh Bamba had secured 42 points whereas, Yogesh Nagpal and Kishore Kumar Sharma appellants in LPA No. 255/2000 had secured 41 and 38 points respectively, and Mrs. Chander Lekha Gupta in LPA 256/2000 had secured 42 points, as is born by the award list produced by ld. counsel for the official respondents before the Court. The appellants in all these appeals were thus, possessed of the merit which was very close and nearer to the merit obtained by the last selected candidate. 11. The advertisement notification besides prescribing other eligibility qualifications had also in un-equivocal and specific terms provided that only those candidates who would secure 33% (minimum) or above marks in the written test would be called for viva voce/Personality Assessment Test. The condition as contained in both the advertisement notifications, thus authorized the selection Committee/authority to call only those persons for viva voce/Personality Assessment Test who had secured minimum 33% marks in written examination. The condition so contained in the advertisement notifications would otherwise mean that those candidates who secured less than 33% marks in written test would not be eligible for being called for viva voce/Personality Assessment Test. The criterion so prescribed in the advertisement notification would thus exclude all those candidates from the process of selection and zone of consideration for being selected/appointed as prosecuting officers who had secured less than 33% marks in written test. The appellants in their writ petitions had specifically pleaded that this criteria was changed mid stream by the official respondents and candidates who would be ineligible in terms of the advertisement notifications were called for viva voce/personality assessment test. The official respondents, however, did not specifically deal with this averment of the appellants. 12. The appellants in their writ petitions had specifically pleaded that this criteria was changed mid stream by the official respondents and candidates who would be ineligible in terms of the advertisement notifications were called for viva voce/personality assessment test. The official respondents, however, did not specifically deal with this averment of the appellants. 12. The then Director General of Police who had issued advertisement notice, however, in pursuance to orders of the writ court filed an affidavit in pursuance of order dated 17th March 1999 in SWP No. 2323/98, wherein it was admitted that in terms of the advertisement notification(s) in order to enable a candidate to qualify for viva voce/personality assessment test, he should secure 33% marks (minimum) in written test. In the said affidavit the then Director General of Police has admitted that the criterion of 33% marks was reduced to 25% marks in case of general category candidate to which the appellants belong to, because of the poor performance of the candidates in the written test. The then Director General of Police in the said affidavit had further elaborated the re-advertisement notification was issued so to allow more candidates to participate and compete in the selection process thereby enabling the selection/appointing authority to appoint more meritorious candidates and get the best talent. The affidavit so filed is self destructive as two contradictory stands have been taken in the said affidavit. In the first place it is stated that re-advertisement notification was issued so to provide opportunity to more candidates to participate in the selection process, thereby enabling the selection/appointing authority to select and appoint more talented candidates but on the other hand it has been stated that because of poor performance of the candidates in the written test the criterion fixed as 33% was reduced to 25%. The affidavits on the face of it thus makes it clear that not only the criterion fixed in the advertisement notification was changed during the selection process, but this change had the affect of compromising with merit, for which avowed purpose as per the affidavit of Director General of Police re-advertisement notification was issued. 13. The affidavits on the face of it thus makes it clear that not only the criterion fixed in the advertisement notification was changed during the selection process, but this change had the affect of compromising with merit, for which avowed purpose as per the affidavit of Director General of Police re-advertisement notification was issued. 13. The selection process undertaken, and consequent appointments made thereafter to the posts of Prosecuting officer in pursuance to the advertisement notifications of 1997-98 is rendered bad in law for the following reasons:- a) The criterion fixed by the selection/appointing authority once fixed in the advertisement notification could not be changed after the process of selection was started and that too in mid-stream without notifying the same to the candidates who were participating in the selection process. The legal and constitutional rights of the candidates who were participating in the selection process have been adversely affected. b) The selection/appointing authority had fixed the criterion of calling only those candidates for viva voce/personality assessment test, who had secured minimum 33% marks in written test and not to call for viva voce/personality assessment test those candidates who had secured less than 33% marks in the written test. The authorities by calling ineligible candidates for viva voce/personality assessment test, have thus clubbed ineligible candidates with the group of eligible candidates. This act of the respondents on the face of it besides being arbitrary, unreasonable is also discriminatory thus in violation of constitutional safeguards guaranteed under article 14 and 16 of the Constitution. c) By calling for interview the ineligible candidates, some of the candidates who had become eligible after securing minimum 33% marks in the written test, were made to compete with in-eligible candidates who might have been allotted more marks in viva voce/personality assessment test and in process excluding some of the eligible candidates from being selected/appointed as prosecuting officers. d) On the test of doctrine of reasonableness as also on the doctrine of proportionately the change of criterion after initiating the process of selection is illegal as it does not fulfill the avowed purpose of selecting and appointing talented candidates. e) The selection/appointing authority had not reserved right to reduce the minimum marks of 33% and could not in law reduce the same. 14. e) The selection/appointing authority had not reserved right to reduce the minimum marks of 33% and could not in law reduce the same. 14. This court, in case titled Raj Kumar Pandita v. State of J&K and ors reported in SLJ 1988 page 488 has held that change of criteria during the process of selection is illegal. 15. The Honble Supreme Court in case titled P.M Latha and anr appellant vs. State of Kerala and ors, respondents reported in 2003 (3) SCC 541 has held that only those persons become eligible for securing consideration for being selected/appointed to the post who were eligible in terms of advertisement notification. 16. The Honble Supreme court held that the persons ineligible in terms of the advertisement notification cannot be considered for being selected/appointed for the post. 17. The Honble Supreme Court in case titled K. Manjusree appellant v. State of Andrapradesh and anr respondents, reported in (2008) 3 SCC 512, has held that in a recruitment process selection criteria has to be prescribed in advance and rules thereof cannot be changed afterwards. In this case, the minimum qualifying marks for interview were prescribed after the interviews were over, which was held to be not permissible. 18. It has been further held in the said case that minimum qualifying marks can be prescribed both for written examination and interview, which has to be done in advance. Para 29,30 and 32 are reproduced as under: - "29. In Umesh Chandra the scope of the Delhi Judicial Service Rules, 1970 came up for consideration. The Rules provided that those who secured the prescribed minimum qualifying marks in the written examination will be called for viva voce; and that the marks obtained in the viva voce shall be added to the marks obtained in the written test and the candidates ranking shall depend on the aggregate of both. 27 candidates were found eligible to appear for viva voce on the basis of their having secured the minimum prescribed marks in the written examination. The final list was therefore, expected to be prepared by merely adding the viva voce marks to the written examination marks in regard to those 27 candidates. But the final list that was prepared contained some new names which were not in the list of 27 candidates who passed the written examination. The final list was therefore, expected to be prepared by merely adding the viva voce marks to the written examination marks in regard to those 27 candidates. But the final list that was prepared contained some new names which were not in the list of 27 candidates who passed the written examination. Some names were omitted from the list of 27 candidates who passed the written examination. 30. It was found that the Selection Committee had moderated the written examination marks by an addition of 2% for all the candidates, as a result of which some candidates who did not get through the written examination, became eligible for viva voce and came into the list. Secondly, the Selection Committee prescribed for selection, a minimum aggregate of 600 marks in the written examination and viva voce which was not provided in the Rules and that resulted in some of the names in the list of 27 candidates being omitted. This court held neither was permissible. Dealing with the prescription of minimum 600 marks in the aggregate this Court observed: (Umesh Chandra case, SCC pp. 735-36, para 4) "14.There is no power reserved under Rule 18 of the Rules for the High Court to fix its own minimum marks in order to include candidates in the final list. It is stated in Para 7 of the counter-affidavit filed in Writ Petition No. 4363 of 1985 that the Selection Committee has inherent power to select candidates who according to it are suitable for appointment by prescribing the minimum marks which a candidate should obtain in the aggregate in order to get into the Delhi Judicial Service. But on going through the Rules, we are of the view that no fresh disqualification or bar may be created by the High Court or the Selection Committee merely on the basis of the marks obtained at the examination because Clause (6) of the Appendix itself has laid down the minimum marks which a candidate should obtain in the written pape4rs or in the aggregate in order to qualify himself to become a member of the Judicial Service. The prescription of the minimum of 600 marks in the aggregate by the Selection Committee as an additional requirement which the candidate has to satisfy amounts to an amendment of what is prescribed by Clause (6) of the Appendix We are of the view that the Selection Committee has no power to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix. We are, therefore, of the view that the exclusion of the names of certain candidates, who had not secured 600 marks in the aggregate including marks obtained at the viva voce test from the list prepared under rule 18 of the Rues is not legal." 32. In Maharashtra SRTC v. Rajendra Bhimrao Mandve this court observed that "the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced." In this case the position is much more serious. Here, not only the rules of the game were changed, but they were changed after the game had been played and the results of the game were being awaited. This is un acceptable and impermissible." 19. The Honble Supreme Court in case titled Ashok Kumar Sharma and ors vs. Chander Shekhar and anr, (1997) 4 SCC page 18 has held that an advertisement or notification issued/published calling for applications constitutes a representation to the public and the issuing authority is bound by such representation. It cannot act contrary to it. The relevant portion of para 6 is reproduced as under: - "An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it" 20. In view of the above discussions, it becomes clear that by changing the selection criterion in mid-stream the entire selection process is rendered illegal. But the court cannot lose sight of the fact, that the selection/appointments have been made way back in the year 1998 which fact dissuades this court from quashing the selection/appointment of non-official respondents. In view of the above discussions, it becomes clear that by changing the selection criterion in mid-stream the entire selection process is rendered illegal. But the court cannot lose sight of the fact, that the selection/appointments have been made way back in the year 1998 which fact dissuades this court from quashing the selection/appointment of non-official respondents. But after holding that the selection process was conducted illegally and improperly for the reasons of having changed the criterion after initiation of selection process, the appellants cannot be denied relief for which they have been waiting for all these years. 21. The admitted fact position in this case, is that 25 posts were rendered vacant after conclusion of selection process as some appointed candidates did not join and some left after joining. The writ court had directed not to re-advertise twelve vacant posts. In order to do substantial justice in this case, and in order to mitigate the hardships to which the appellants have been subjected to all these years, relief has to be granted in their favour. 22. These appeals are accordingly allowed in the following manner and impugned judgments accordingly stand modified in following terms: i) The official respondents are directed to offer appointments to the post of prosecuting officers to the appellants in all the three appeals within a period of two months from today. ii) It is further directed that in case the appellants in these appeals have crossed the upper age limit fixed for seeking selection/appointment to the post of Prosecuting officer same shall be deemed to have been relaxed and the appellants shall be treated to be within the age limit prescribed for making the appointments to the posts of Prosecuting officers. iii) Award list is returned to the ld. counsel for respondents. No order as to costs.