HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Court No. - 4 Case :- WRIT - A No. - 51724 of 2015 Petitioner :- Dr. Vinod Kumar And Another Respondent :- Union Of India And 10 Others Counsel for Petitioner :- Gautam Baghel,Ch Na Khan Counsel for Respondent :- A.S.G.I.,Avadhesh Chandra Srivasta,Avdhesh Chandra Srivastav,Ikram Ahmad,Irshad Husain,Sanjeev Singh,Taufir-Ul-Islam ********************************** Hon'ble B. Amit Sthalekar,J.
Heard Shri Gautam Baghel, learned counsel for the petitioners and Shri Ikram Ahmad, Shri T.Islam and Shri Sanjeev Singh for the respondents.
The petitioners in this writ petition are seeking quashing of the order dated 13.8.2015 by which the appointment of certain candidates have been approved by the Vice Chancellor, Aligarh Muslim University and the order dated 18.8.2015 passed by the Dy. Registrar, Aligarh Muslim University posting the selected candidates at the places shown against their names. The petitioners are also seeking quashing of the order dated 31.8.2015, Annexure-7 to the writ petition passed by the Assistant Registrar, Aligarh Muslim University giving temporary appointments to the 12 wait list candidates against temporary vacancies on the post of Assistants (Administration).
The case of the petitioners is that the Aligarh Muslim University (AMU) (for short 'the University') issued an advertisement dated 1.12.14 inviting applications for 61 posts of Assistants (Administration). The post of Assistants (Admn.) finds place at item no. 76 of the advertisement. The post of Assistant (Admn.) is in the pay band of 9300-34,800 with the grade pay of 4200 plus allowances. The qualification-essential for the said post are :
i) Bachelor's Degree from a recognized University
ii) 3 years experience in the capacity of UDA (Admin) or equivalent in a University/ Academic/ Central Government/ State Government/ Government undertaking
iii) Knowledge of computer specially MS Office The qualification under the heading QUALIFICATIONS-ESSENTIAL reads as under:
I) Bachelor's Degree from a recognized University II) 3 years experience in the capacity of UDA (Admin) or equivalent in a University/ academic/ Central Government/ State Government/ Government undertaking III) Knowledge of computer specially MS Office The petitioners are stated to be working as UDC in the AMU on substantive posts and in pursuance of the advertisement dated 1.12.2014 they had also applied for appointment on the post of Assistant (Admin). The candidates were called for interview held from 22nd to 25th July, 2015. The result of the selected candidates was declared on 13.8.2015 and thereafter the consequential order dated 13.8.2015 was passed. It is stated that all the selected candidates have been appointed on probation of one year but this condition has been waived in respect of three candidates, namely, Shri Abdul Wasique (sl. no. 43), Sri Vijay Kumar (sl. no. 44) and Shri Zeeshan Ahmad Khan (sl. no. 50). The main contention of the petitioners is that a large number of persons who were selected did not possess the requisite qualification of 3 years working experience on the post of UDC as per the advertisement and in any case they were not working on the post of UDC at the time when they applied for the selection. The names of some of the persons who according to the petitioners have no experience as UDC has been mentioned in paragraph 10 of the writ petition which is as under:
a. Mrs. Rubeena Rashid Ali b. Sri Abrar Khan c. Sri Sheeraz Sharif Siddiqui d. Sri Salman Sahid In paragraph 16 of the writ petition it has been stated that the respondent no. 11-Mohd. Adnan (at sl. no. 12) of the select list was working in a software developing company wherein he was working as a Senior Software Quality Engineer and therefore by no stretch of imagination could a person working as Senior Software Quality Engineer be said to be equivalent to UDC. Similarly with regard to respondent no. 9-S.M. Athar Hussain (at sl. no. 60), it is stated in paragraph 17 of the writ petition that he was working as Project Assistant (Technical) in M/s Orien S.S. Pvt. Ltd. which is also not equivalent to UDC. In paragraph 18 of the writ petition it has been stated that one of the selected candidates- Sheeraj Sharif Siddiqui (at sl. no. 27) of the select list was working as a daily wager in the University Guest House and, therefore, he cannot be said to be working as UDC for three years. With regard to respondent no. 7-Syed Azeem Abbas (at sl. no. 31) of the select list, it has been stated that he has been issued a certificate from the Hashmi Girls Inter College affiliated to Mahatma Jyotiba Phule Rohilkhand University, Bareilly and though it is claimed that he has worked as UDC the post of UDC has not been sanctioned under the U.P. State Universities Act, 1973 nor does it exist in the First Statutes of the Mahatma Jyotiba Phule Rohilkhand University, Bareilly.
With regard to respondent no. 10-Sufian Nishtar (at sl. no. 41 of the select list), it has been stated in paragraph 20 of the writ petition, that he has been issued a No Objection Certificate from Dr. Hassan Ghazzawi Hospital, Jeddah, Saudi Arabia and he has also been shown working as Assistant (Admin) and not as UDC. It is further stated that by the third impugned order dated 31.8.2015, 12 persons who were in the waiting list have been given appointment as temporary Assistant (Admin) against temporary vacancies of Assistant (Admin) arising within one year. It is stated that the Executive Council of the University by its Resolution dated 21/22.12.1987 and 27.3.1987 has mentioned that in future the selection committee shall not draw up any panel for appointment against anticipated vacancies or permanent vacancies and the persons may be kept in the waiting list only so that in case persons selected to the post fail to join the said post may be filled from the persons of the waiting list. It is further stated that the impugned order dated 31.8.2015 refers to an office memo dated 29.4.2014 but this office memo only limits the appointment from the waiting list to the appointment on a teaching post but due to ulterior motive the said G.O. has been invoked to make temporary appointments from the waiting list on the post of Assistant (Admin) also.
A short counter affidavit running into 130 pages has been filed by the respondent--University and in paragraph 4 thereof it has been stated that there were a total of 58 vacancies and 633 applications were received and the written test was held on 6.6.2015. Interview of the eligible candidates was held on 21.7.2015. It has further been stated that the meeting of the screening committee was held on 15.4.2015 to take a decision with regard to "equivalence" for the purposes of eligibility. The advertisement mentioned the required eligibility criteria as 3 years experience in the category of Assistant (Admin) or equivalent in a University/ Academic Institution/ Central Government/ State Government/ Government undertaking. In paragraph 5 of the short counter affidavit it has been stated that the Committee shall take a decision for determining equivalence to the post of UDC:-
(a) the gross salary of the applicant should be equivalent to an UDC or above during their employment considered for their eligibility;
OR
(b) the work performed by the persons as UDC work related to the management of the office which include typing, record keeping, preparing letters and notes etc., AND
(c) the above mentioned work should be performed in a Central Government/ State Government/ University/ Academic Institution/ Government Undertaking office. Academic Institution is a very wide term which includes all types of institutions of academic nature including schools.
Paragraph 4 and 5 of the short counter affidavit read as under:
"4. That a screening committee was held on 15.04.2015 to decide (equivalence) in the prescribed qualification as the initial qualification in the advertisement states that "three year experience in the capacity of Upper Division Clerk (Admin) or equivalence in a University, academic institution, Central Government, State Government or Government undertaking".
5. That the committee decided that while determining the equivalence as UDC:-
(a) The gross salary of the applicant should be equivalent to an UDC or above during their employment considered for their eligibility;
OR
(b) The work performed by the applicant should be of an UDC, i.e., work related to the management of an office which including typing, record keeping, preparing letters and notes etc. AND
(c) The above mentioned work should be performed in a Central Government/ State Government/ University/ Academic Institution/ Government Undertaking office Academic Institution is a very wide term which includes all types of institution of academic nature including schools."
In paragraph 6 of the short counter affidavit the details of respondents 7 to 11 have been given. With regard to respondent no. 7 it is stated that he is a B.Com from AMU having passed in second division. He has previously worked as Assistant (Admin) in the Hashmi Girls Degree College, Amroha and his salary was Rs.12,000/- per month. The respondent no. 8 was working as Senior Assistant (Admin) in the ANC College of Engineering and Management Studies approved by AICTE, New Delhi affiliated to the U.P. Technical University, Lucknow and he was holding the post of Senior Assistant (Admin). The respondent no. 9 was B.A. from Jamia Miliya Islamiya New Delhi and was working as Project Assistant (Technical) from the National Council for Promotion of Urdu Language, Ministry of Home Resources Development, Government of India, New Delhi with a salary of Rs.18,773/- . The respondent no. 10 is stated to have passed B.A. from AMU in 1999 and working in the North West Armed Forces Hospital (Admin), Saudi Arabia with a monthly salary of 1500 saudi riyal. Respondent no. 11 is stated to have done his B.Sc. from AMU and working as Senior Software Quality Engineer at OSS Cube Solution, Noida since 18.4.2013 and Software Engineer at Chetu India Pvt. Ltd. Nodia with a salary of Rs.40,000/- from 17.10.2012 to 7.4.2013 and was holding the designation equivalent to UDC.
A counter affidavit has been filed on behalf of the respondents no. 7,8,9 and 10 wherein it has been stated that the respondent no. 7 Syed Azeem Abbas, was working on the post of Assistant (Admin) in the Hashmi Girls Degree College. In paragraph 19 of this counter affidavit it has categorically been stated that the respondent no. 7 was not working on the post of UDC and therefore there is no issue as to whether post of UDC exist in the Mahatma Jyotiba Phule Rohilkhand University, Bareilly or not. With regard to respondent no. 9 it has been stated that he was working with the National Council for Promotion of Urdu Language under the Ministry of Human Resource Development, Government of India and has performed the duty of general office administration on contract basis from November, 2007 to June, 2010. As regard respondent no. 10, it has been stated that he was working with the North West Armed Forces Hospital Administration Tabuk, Ministry of Defence and Aviation, Government of the Kingdom of Saudi Arabia from 2004 to 2008 and he joined his service in Dr. Hassan Ghazzawi Hospital, Jeddah, Saudi Arabia and he was getting a salary of 1500 saudi riyal equivalent to Rs.21,000/- indian rupees, which is stated to be much higher than the UDC in India.
A counter affidavit has been filed by the respondent no 11 and in paragraph 11 thereof it has been reiterated that the Selection Committee met on 15.4.2015 to decide the question of equivalence. In paragraph 18 of the writ petition it has been stated that the petitioner was drawing a gross salary of Rs.25,000/- in the previous establishment under the Government of India which is equivalent to the salary drawn by a UDC employed in the AMU during the period from 2008 to 2012.
One of the principal contentions of the learned counsel for the petitioners was that the criteria of selection was changed after the advertisement had already been issued and, therefore, the entire process of selection was illegal. The submission of Shri Gautam Baghel, learned counsel for the petitioner was that the question of equivalence ought to have been stated in the advertisement itself and if it was not stated in the advertisement due to omission, at least a corrigendum ought to have been issued explaining as to what was meant by equivalence and by what criteria the respondents proposed to determine equivalence.
A preliminary objection was raised on behalf of all the respondents that the petitioners had participated in the selection and only after they had failed to qualify in the selection they have filed the present writ petition and, therefore, the writ petition was not maintainable and ought to be dismissed on that ground itself. The respondents have relied upon the following judgments:
1. Chandra Prakash Tiwari Vs. Shakuntala Shukla reported in 2002 LawSuit (SC) 597.
2. Amit Tiwari And 7 Others Vs. State of U.P. and Another passed in Special Appeal Defective No.122 of 2015.
3. Anoop Kumar and 135 Others Vs. State of U.P. and passed in Writ Petition No.63851 of 2014.
Shri Gautam Baghel on the contrary submitted that the required eligibility qualifications for the post of Assistant (Admin) was stated in the advertisement itself and although the advertisement mentioned the criteria that it should be three years experience as UDC but the advertisement never disclosed as to how the equivalence was to be determined or whether it had already been predetermined by some Resolution of the University or G.O. or notification. As admitted by the University-respondents in their short counter affidavit the criteria for determination of equivalence was laid down by the Selection Committee of the University in its Resolution dated 15.4.2015 and paragraph 8 thereof mentioned that gross salary of an applicant should be held to be equivalent to a UDC or above or that the work performed by the applicant should be of a UDC i.e. related to the management of an office which includes typing, record keeper and notes etc. or the work should be performed in a Central Government/State Government/University/Academic institution has been given a very wide definition and includes all types of institutions of academic nature including schools.
The preliminary objection of the respondents that this writ petition has been filed only after the petitioners failed to qualify the selection must necessarily be rejected for the simple reason that when the petitioners appeared in the selection and till the declaration of the result it was not known as to what was the criteria on the basis of which the selection would be held. It is not disputed that the petitioners were the non-selected candidates. It is quite obvious that the procedure of selection has been amended by the Equivalence Committee in its meeting held on 15.04.2015 by introducing a new eligibility criteria which vitiates the entire selection. If it was the intention of the respondent- University to introduce a new or amended criteria of eligibility it could have done so through a corrigendum but before the start of the selection process. The fact that the Rules of the game were changed after the Advertisement had been issued and the process of selection had commenced, came to light only after filing of the present writ petition and disclosure of the Resolution of the Screening Committee with regard to determination of 'equivalence' in its decision taken on 15.04.2015. The Advertisement itself was dated 01.12.2014 and the applications were invited by post by 31.12.2014 therefore it is abundantly clear that the process of selection has been changed after the commencement of the selection and after the cut off date for submitting of the applications by the candidates. Therefore the preliminary objection of the respondents as regards maintainability of the writ petition on behalf of the petitioner is rejected. Even otherwise the writ petition is maintainable since it is only after the preparation of the Select List that the petitioners could come to know that ineligible candidates have been selected and their appointments approved, to the exclusion of the petitioners whose "eligibility" has not been questioned by the Respondent-University.
The second leg of submission of Shri Gautam Baghel is that by Central Government/ State Government/ Academic Institution/ Government undertaking it necessarily meant the Central Government of India or the State Government under the Indian Federal Union or in an Academic Institution or Government undertaking in India, whether of the Central Government or the State Government and it certainly did not mean an Academic institution or Government undertaking of a foreign government.
The third leg of the submission of Shri Gautam Baghel, was that in any case salary cannot be the determinative factor for determining equivalence and equivalence has necessarily to be understood with regard to the nature of work performed under the Government or in an academic institution or a Government undertaking under the Central Government or State Government in India.
Reliance has been placed on the decision of the Supreme Court in S.I. Rooplal Vs Lt. Governor, Delhi (2000) 1 SCC 644. Para 17 thereof reads as under:-
"17. In law, it is necessary that if the previous service of a transferred official is to be counted for seniority in the transferred post then the two posts should be equivalent. One of the objections raised by the respondents in this case as well as in the earlier case of Antony Mathew is that the post of a Sub-Inspector in BSF is not equivalent to the post of a Sub-Inspector (Executive) in Delhi Police. This argument is solely based on the fact that the pay-scales of the two posts are not equal. Though the original Bench of the Tribunal rejected this argument of the respondent, which was confirmed at the stage of SLP by this Court, this argument found favour with the subsequent Bench of the same Tribunal whose order is in appeal before us in these cases. Hence, we will proceed to deal with this argument, now. Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than `Pay' will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India and Anr. v. P.K. Roy and Ors, [1968] 2 SCR 186. In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganization Act, 1956. These four factors are : (i) the nature and duties of a post, (ii) the responsibilities and powers exercised by the officer holding a post; the extent Of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criterion. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different, would not in any way make the post `not equivalent'. In the instant case, it is not the case of the respondents that the first three criteria mentioned hereinabove are in any manner different between the two posts concerned. Therefore, it should be held that the view taken by the Tribunal in the impugned order that the two posts of Sub-Inspector in the BSF and the Sub-Inspector (Executive) in Delhi Police are not equivalent merely on the ground that the two posts did not carry the same pay-scale, is necessarily to be rejected. We are further supported in this view of ours by another judgment of this Court :in the case of Vice-Chancellor, L.N. Mithila University v. Dayanand Jha. [1986] 3 SCC 7 Wherein at para 8 of the judgment, this Court held: (SCC pp. 10 & 11) "Learned counsel for the respondent is therefore right in contending that equivalency of the pay scale is not the Only factor in judging whether the post of Principal and that of Reader are equivalent posts. We are inclined to agree with him that the real criterion to adopt is whether they could be regarded of equal status and responsibility. .... The true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts."
The Advertisement in question requires three years experience in the capacity of the Upper Division Clerk (Administration) equivalent in a University/ Academic Institution/ Central Government/ State Government/ Government Undertaking and although it does not mention that such a qualification should be from an Institution within India, the language of the Advertisement makes it amply clear that such a qualification must necessarily be from an Institution within the Country. Applying the Rules of Interpretation each word used in the Advertisement for understanding of the qualification required for the post of Assistant (Admn.) must necessarily co-relate with the words used before or thereafter. The words used are Central Government/ State Government/ Government Undertaking. If the intention of the University had been that a qualification from outside the Country would also be permissible and admissible for consideration, the Advertisement would have said so in so many words and it would not require a Court to interpret the same. A candidate who applies for the post against the impugned Advertisement is not required to approach a Court of Law to interpret the requirement of the Advertisement. The words speak for themselves. The words Central Government/ State Government/ Government Undertaking necessarily refer to the Government of India or a State Government within the Federal Union of India and a co-relative Government Undertaking. Similarly the words University/Academic Institution must also co-relate with the subsequent words 'Central Government/ State Government/ Government Undertaking' and must necessarily mean a University or Academic Institution within the Country. The respondents cannot determine equivalence with reference to the post of Upper Division Clerk in a University or Academic Institution outside the Country. The Interpretation of qualification no.2 referred to above finds support from the qualification no.1 which mentions Bachelor's Degree from a recognized University. It obviously means a University within the Country and not a foreign country because recognition must again co-relate with the recognition that such a University may have been granted by the University Grants Commission or established by an act of Parliament.
The short counter affidavit itself discloses that the respondents no.10 is stated to have been employed in the North West Armed Forces Hospital (Admn.), Saudi Arabia and thereafter as Senior Administrative Assistant in the Mashfa-Al-Abeer Medical Company Ltd. Jeddah, Saudi Arabia and therefore he cannot be said to have the requisite qualification for the post of Assistant (Administration). The respondent no.7 is stated to have been working as Assistant (Admn.) with a salary of Rs.12,000/- per month in the Hashmi Girls Degree College, Amroha but from the certificate filed by the candidate issued by the Hashmi Girls Degree College, Amroha that he is working as Assistant (Admn.) does not necessarily imply that the said post is equivalent to that of UDC.
In paragraph 6 of the short counter affidavit filed by the University it has been stated that the said respondent was earning a salary of Rs.12,000/- per month. It appears that it is the salary factor which had weighed with the Respondent-University while determining equivalence and in any case there is nothing in the short counter affidavit to indicate as to whether the nature of work of Assistant (Admn) in the Hashmi Girsl Degree College is equivalent to that of UDC.
Likewise the respondent no.9 is stated to have a working experience on the post of Project Assistant (Technical) with a salary of Rs.18,773/-. The respondent no.11 is stated to be working as Senior Software Quality Engineer at OSS Cube Solution, NOIDA working since 18.04.2013 and prior to that he is stated to have been working as Software Engineer at Chetu India Private Ltd., NOIDA with a Salary of Rs.40,000/-from 17.10.2012 to 07.04.2013. It is not understood as to how the respondents have determined a Senior Software Quality Engineer to be equivalent to the post of Upper Division Clerk and herein again it appears that the said candidate's income of Rs.40,000/- per month was held to be the determinative factor. In any case OSS Cube Solution, NOIDA or Chetu India Private Ltd., NOIDA cannot be held to be "University/Academic Institution or Government Undertaking" and therefore the respondent no.11 also cannot be said to have three years experience of work as Upper Division Clerk under a University/Academic Institution/Central Government/State Government/Government Undertaking.
In paragraph 10 of the writ petition a clear allegation has been made by the petitioners that one Rubeena Rashid Ali, whose name appears at Sl.No.2 was working as Junior Assistant on a fixed salary of Rs.15,000/- per month, Sri Abrar Khan at Sl.No.32 was also working as Junior Assistant (Lower Division Clerk), Sri Sheeraz Sharif Siddiqui at Sl.No.27 was working as a daily wager, Sri Salman Sahid at Sl.No.14 of the select list was working as Nodal Officer and Sri Irfan Khan at Sl.No.4 is without any experience. The seniority list of daily wager in the respondent University has been filed at page 54 of the writ petition wherein the name of Sheeraj Sharif Siddiqui appears at Sl.No.77. The averments of paragraph 10 of the writ petition have not been denied in the short counter affidavit.
No counter affidavit has been filed by the respondent University although time was granted on 27.10.2015 but they have chosen only to file a short counter affidavit.
The averments of paragraphs 25 and 26 of the writ petition have also not been denied by the respondents in their short counter affidavit.
So far as the impugned order dated 31.08.2015 is concerned, according to the petitioners the reference of the office memo dated 29.04.2015 in the order dated 31.08.2015 is wholly erroneous inasmuch as the said office memo is limited to the appointment on the teaching posts of Associate Supervisor and Assistant Supervisor only and could not have been meant for filling up the post of UDC. The copy of the office memo has been filed as Annexure-9 to the writ petition and there is no denial of the averments of paragraph 27 of the writ petition in the short counter affidavit.
The document filed at page 62 of the writ petition which has been issued to one Mojibul Haque shows that he is working as Document Controller in the General Industries Company Ltd. but there is nothing on record to show that the post of Document Controller is equivalent to UDC or that the General Industries Company Ltd. is a Government Undertaking (Central Government or State Government) or even an Academic Institution. This clearly shows that the selection of large number of candidates has been made either without having any regard to the nature of work performed by the candidates and co-relating equivalence with the work of UDC or that salary has been the sole factor in determining equivalence. Some of the certificates are from Private Companies and in any case there is nothing on record to show that they are Government Undertakings either of the State Government or the Central Government.
Therefore, the select panel of Assistant (Admin) with names of candidates whose eligibility for the post is equivalence of salary drawn by them on different posts, with that of a UDC is an illegal and arbirary panel which could not have been approved. In any case by inclusion of names of ineligible persons in the select list, the petitioners have been denied selection.
Taking the next submission of the learned counsel for the petitioner that the procedure of selection has been changed after the Advertisement has been issued and therefore the entire selection is bad, it is noticed that when the Advertisement was issued on 01.12.14 the eligibility qualifications were clearly mentioned therein. Subsequently on 15.04.2015 the Screening Committee met in order to determine equivalence and the Committee has taken a decision as under;
(a) gross salary of the applicant should be equivalent to the UDC or above, OR
(b) the work performed by the applicant should be of a UDC related to a management of an office including type record keeping letters and note, etc. AND
(c) the work should be performed by the Central Government/State Government/Government Undertaking. Academic Institution was held to include all type of Schools of Academic nature including schools.
What is interesting to note is that the between eligibility criteria no.-(b) and eligibility criteria no.(c) as determined by Committee the word used is "And" and therefore as already noted above Central Government/State Government/University/Government Undertaking can only mean such a Government or University or Academic Institution within India and not some foreign Institution or the Central Government or the State Government or Government Undertaking of some foreign Government. If that had been the intention the Equivalence Committee/Screening Committee in its meeting on 15.04.2015 would have said so in so many words.
Secondly, determining 'equivalence' on the basis of salary or something else was not mentioned in the Advertisement and therefore it is clear that a large number of persons who may have had the equivalent pay scale or drawing such salary as UDC may have also applied against the Advertisement but could not do so because the Advertisement was silent on this aspect of the matter. Therefore, it is clear that the criteria of qualification has been sought to be changed and amended by the Equivalence Committee after the issuance of the impugned advertisement.
The Supreme Court in the case of Secretary, A.P. Public Service Commission Vs. B. Swapna and others reported in (2005) 4 SCC 154 has held in paragraph 14 as under:
"14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for the applicant-respondent No.1 it was un-amended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criteria e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the Statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If the Rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran and Ors. v. State of Karnataka and Ors. etc. (1990 (1) SCC 411) and Gopal Krishna Rath v. M.A.A. Baig)"
In the case of Madan Mohan Sharma and another Vs. State of Rajasthan and others reported in (2008) 3 SCC 724 it has been held in paragraph 11 as under:
"11.We have heard learned counsel for the parties and perused the records. Mr.M.R.Calla, learned senior counsel appearing for the appellants has strenuously urged that during the pendency of the selection process, the eligibility criteria was changed and the date for submission of the application in pursuance to the advertisement was extended and Rule 266 of the Rules of 1996 came into being on 30.12.1996 whereby it was provided that Higher Secondary Examination shall be the criteria for preparing the merit list. As such, as per the service rules, the selection should have been made on the basis of Higher Secondary Examination marks and not on the basis of Secondary Examination marks. We regret this cannot be accepted. Once the advertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which was laid down and it cannot be on the basis of the criteria which has been made subsequently.'' In the case of Mohd. Sohrab Khan Vs. Aligarh Muslim University and others reported in (2009) 4 SCC 555 it has been held in paragraphs 24, 25 and 26 as under:
"24. According to us, the Selection Committee as also the University changed the rule in the midstream which was not permissible. The University can always have a person as a Lecturer in a particular discipline that it desires to have, but the same must be specifically stated in the advertisement itself, so that there is no confusion and all persons who could be intending candidates, should know as to what is the subject which the person is required to teach and what essential qualification the person must possess to be suitable for making application for filling up the said post.
25.We are not disputing the fact that in the matter of selection of candidates, opinion of the Selection Committee should be final, but at the same time, the Selection Committee cannot act arbitrarily and cannot change the criteria/qualification in the selection process during its midstream. Merajuddin Ahmad did not possess a degree in pure Chemistry and therefore, it was rightly held by the High Court that he did not possess the minimum qualification required for filling up the post of Lecturer Chemistry, for pure Chemistry and Industrial Chemistry are two different subjects.
26.The advertisement which was issued for filling up the post of Lecturer in Chemistry could not have been filled up by a person belonging to the subject of Industrial Chemistry when the same having been specifically not mentioned in the advertisement that a Masters Degree holder in the said subject would also be suitable for being considered. There could have been intending candidates who would have applied for becoming candidate as against the said advertised post, had they known and were informed through advertisement that Industrial Chemistry is also one of the qualifications for filling up the said post."
The Supreme Court in the case of Prakash Chand Meena and others Vs. State of Rajasthan and others reported in (2015) 8 SCC 484 has held in paragraphs 8,9 and 10 as under:
"8. Having heard the parties, we have also perused the written submissions filed on behalf of some of them and have perused the judgment of the learned Single Judge and the impugned judgment of the Division Bench. In our considered view, the issue noticed at the outset must be decided on the basis of settled law noticed by the learned Single Bench that recruitment process must be completed as per terms and conditions in the advertisement and as per Rules existing when the recruitment process began. In the present case, the Division Bench has gone to great lengths in examining the issue whether BPEd and DPEd qualifications are equivalent or superior to CPEd qualification but such exercise cannot help the cause of the respondents who had the option either to cancel the recruitment process if there existed good reasons for the same or to complete it as per terms of the advertisement and as per Rules. They chose to continue with the recruitment process and hence they cannot be permitted to depart from the qualification laid down in the advertisement as well as in the Rules which were suitably amended only later in 2011. In such a situation, factual justifications cannot change the legal position that the respondents acted against law and against the terms of advertisement in treating such applicants successful for appointment to the post of PTI Gr. III who held other qualifications but not the qualification of CPEd. Such candidates had not even submitted separate OMR application form for appointment to the post of PTI Gr. III which was essential as per the terms of advertisement.
9. The candidates who were aware of the advertisement and did not have the qualification of CPEd also had two options, either to apply only for PTI Gr.II if they had the necessary qualification for that post or to challenge the advertisement that it omitted to mention equivalent or higher qualification along with qualification of CPEd for the post of PTI Gr. III. Having not challenged the advertisement and having applied for the other post, they could not have subsequently claimed or be granted eligibility on the basis of equivalence clarified or declared subsequently by the State Government. In the matter of eligibility qualification, the equivalent qualification must be recognized as such in the recruitment rules or government order existing on or before the initiation of recruitment process. In the present case, this process was initiated through advertisement inviting application which did not indicate that equivalent or higher qualification holders were eligible to apply nor were the equivalent qualifications reflected in the recruitment rules or government orders of the relevant time.
10. For the aforesaid reasons, in our view the Division Bench erred in interfering with the judgment of the learned Single Judge who had correctly allowed the writ petitions filed against the result declared by the Commission on the basis of the State Government's Letter dated 6.1.2010. The impugned judgment under appeal is, therefore, set aside and the judgment and order of the learned Single Judge is restored. That should be complied forthwith. The appeals are accordingly allowed but without any order as to costs."
Therefore, there is no doubt that the rules of the game have been changed midway of the selection and the new fact of equivalence has been introduced for determining eligibility after the issuance of the Advertisement which renders the entire selection bad in law.
The next submission of the learned counsel for the petitioners is that by an order dated 31.08.2015, 12 candidates were appointed as Temporary Assistant (Admn) against temporary vacancies of Assistant (Admn) out of the waiting list or panel of selected candidates. The submission is that such appointment could not have been made as the Executive Council in its meeting held on 21/22.02.1987 and 27.03.1987 had resolved that in future the Selection Committees shall not draw up any panel for appointment against anticipated temporary or permanent vacancy, persons may however be kept on waiting list so that in case the person (s) selected to the post (s) fails to join, alternative appointment against the post (s) may be made from the waiting list. Copy of the Resolution of the Executive Council of the University has been filed as Annexure-8 to the writ petition and item no.58 thereof reads as under:
"Item No.58. The council approved that in future the Selection Committees shall not draw up any panel for appointments against anticipated temporary or permanent vacancy. Persons may however be kept on waiting list so that in case the person (s) selected to the post (s) fails to join, alternative appointment against the post (s) may be made from the waiting list."
The resolution of the Executive Council therefore, leaves no doubt that anticipated temporary posts of Assistant (Admin) could not have been filled from candidates of the waiting list.
In this view of the matter the impugned order dated 13.08.2015 appointing persons out of the waiting list as Temporary Assistant (Admn) is absolutely illegal and arbitrary and without any authority of law much less the Office Memo dated 29.04.2014 which is applicable to Teaching posts only.
For the reasons aforesaid the impugned orders dated 13.08.2015, 18.08.2015 and 31.08.2015 cannot survive and is accordingly quashed.
The writ petition stands allowed.
A direction is issued to the respondents to prepare a fresh select list strictly in accordance with law bearing in mind the observations made herein above.
Dated: 23rd December, 2015 o.k./N.Tiwari