K. D. PANDYA v. STATE — 1994 DIGILAW 18 (GUJ)

K. G. SHAH, J. ( 1 ) THE petitioner holds the degree of M. Sc. (Medicine) in Physiology. He was appointed as Part-time Tutor and subsequently as a Full Time Tutor in Physiology at Medical College Baroda. Lateron he was confirmed in that post as he was selected as a Tutor by the Gujarat Public Service Commission. Thereafter he had applied to the Gujarat Public Service Commission for the post of Assistant Professor and he was selected by the said Commission. However respondent No. 1 - the State of Gujarat did not do anything for appointing him on the post of Assistant Professor in spite of several representations made by him after he came to be selected by the Gujarat Public Service Commission for the post of Assistant Professor. As his representation fall on deaf years he was constrained to file a writ petition being Special Civil Application No. 356 of 1987 in this High Court. On that writ petition interim orders were passed restraining the respondents from appointing anyone either by promotion or by direct recruitment from the waiting list in which the petitioners name appeared as one of the candidates selected for the post of Assistant Professor. INITIALLY respondent - State of Gujarat opposed that writ petition by filing an affidavit-in-reply. However later on the respondent conceded the claim of the petitioner and towards that and the respondent through its Under Secretary Health and Family Welfare Department addressed a letter dated April 30 1988 (the correct date is April 30 1989 Annexure B to the petition whereby the petitioner was informed that he was being appointed as Assistant Professor in Physiology. However before he could take charge of that post he would have to withdraw the Special Civil Application No. 3256 of 1987 which he had filed in this Court and only thereafter he would be enabled to take charge of the post (of Assistant Professor ). With this statement in the letter Annexure B to the petition the petitioner was requested to withdraw his petition under intimation of the Health and Family Welfare Department. With this statement in the letter Annexure B to the petition the petitioner was requested to withdraw his petition under intimation of the Health and Family Welfare Department. IT appears that even before addressing the aforesaid letter Annexure B dated April 30 1989 to the petition the Government had sent a communication in that behalf to the Dean Medical College Vadodara whether the petitioner was serving under a letter dated April 26 1989 This is clear from annexure C to the petition. Annexure C to the petition is a letter dated July 28 1989 written by the Dean Medical College Vadodara to the petitioner stating therein that the Under Secretary in the Health and Family Welfare Department Gandhinagar under his letter dated April 26 1989 had sent instructions to him (the Dean) according to which the petitioner was expected to withdraw his Special Civil Application No. 3256 of 1987. The Dean by this letter Annexure C wrote to the petitioner to inform him whether the petitioner had withdrawn the aforesaid petition. ( 2 ) THE aforesaid facts would show that the Government had decided to appoint the petitioner as Assistant Professor in Physiology. The petitioner was accordingly informed and he was told that he was being appointed as the Assistant Professor of Physiology but before he could taken charge of the post he would have to withdraw the Special Civil Application No. 3256 of 1987 which he had filed in the High Court for getting appointment/promotion to the post of Assistant Professor in Physiology. ( 3 ) PURSUANT to the aforesaid development the petitioner as would be expected immediately on receipt of the letter dated April 30 1989 on May 2 1989 approached this Court and his advocate placed on record the letter dated April 30 1989 Annexure B to the petition and sought permission to withdraw the aforesaid Special Civil Application No. 3256 of 1987 This Court permitted the petitioner to withdraw the aforesaid petition discharged the Rule and vacated the interim relief. This has happended on May 2 1989 It is required to be remembered that the petitioner was assured by the letter Annexure B that he was being appointed as Assistant Professor of Physiology but before he could take charge of that post he would have to withdraw the aforesaid Special Civil Application No. 3256 of 1987 and only be thereafter that he would be enabled or permitted to take charge of the post of Assistant Professor of Physiology. Obviously the petitioner was interested in getting the post of Assistant Professor of Physiology. He received the letter Annexure B dated April 30 1989 and without wasting the time on May 2 1989 he withdrew the Special Civil Application No. 3256 of 1987 with a jubiliant hope that his claim for the post of Assistant Professor of Physiology was isueded by the Government and he was being appointed to that post but the only small hurdle before he can take charge of that post was the pendency of the Special Civil Application No. 3256 of 1987 which he was asked to withdraw and he immediately withdrew that petition. But Alas Once he withdrew that petition the respondent placed all its assurances in cold storage and though the petitioner made several representations requesting the Government to act upon its assurance given to him under Annexure B did not respond to those representations. But Alas Once he withdrew that petition the respondent placed all its assurances in cold storage and though the petitioner made several representations requesting the Government to act upon its assurance given to him under Annexure B did not respond to those representations. As could be seen from what I have stated hereinabove not only that the Under Secretary to the Government in Health and Family Welfare Department had addressed the letter Annexure-B to the petitioner informing him that he was being appointed as Assistant Professor of Physiology and that he would have to withdraw his Special Civil Application No. 3256 of 1987 as a condition precedent to his taking charges as the Assistant Professor of Physiology but four days before the addressing of that letter Annexure B the respondent had written in similar terms to the Dean of Medical College under the letter dated April 26 1989 ( 4 ) AS the respondent backed out from its promise to give appointment to the petitioner on the post of Assistant Professor of Physiology and did not pay heed to the petitioners representation eventhough the petitioner had withdrawn his Special Civil Application No. 3256 of 1987 as he was requested to do by the Government the petitioner has been constrained to file the present petition being Special Civil Application No. 2225 of 1991. ( 5 ) IN this petition under Article 226 of the Constitution of India the petitioner has prayed for an appropriate writ order or direction to the respondent-State to forthwith appoint the petitioner as Assistant Professor of Physiology as per the letters Annexure B and C. ( 6 ) ON this petition this Court has issued an interim relief restraining the respondent from making any appointment to the post of Assistant Professor of Physiology. ( 7 ) I may mention here that respondent No. 1 to the petition is the State of Gujarat respondent No. 2 is the Deputy Director of Medical Education and Research and respondent No. 3 is the Dean Medical College Baroda. I may mention here that pending this petition Dr. Asim Das and Dr. Reghavendra Dixit applied for being impleaded as parties to the petition and they have been joined as respondents No. 4 and 5 to the petition. I may also mention here that Dr. I may mention here that pending this petition Dr. Asim Das and Dr. Reghavendra Dixit applied for being impleaded as parties to the petition and they have been joined as respondents No. 4 and 5 to the petition. I may also mention here that Dr. (Mrs.) Elvy Raju Oommen also applied for being joined as a party to the petition by filing Civil Application No. 2142 of 1992 and her request for being impleaded as party to the petition has been granted However her name has not formally been brought on record in the cause title of the present petition as a party respondent ( 8 ) IT appears that Dr. Asim Das Dr. Raghavendra Dixit and Dr. (Mrs.) Elvy Raju Oommen were required to approach this court with a request that they should be impleaded as party respondents to the petition for according to them they are eligible for being appointed to the posts of Assistant Professor of Physiology and their futher case seems to be that they should be appointed to those posts in preference to the petitioner However nothing turns upon the claim made by those three persons for the petition should either succeed or fail on the merits of the case of the petitioner ( 9 ) HEMENDRA J. Shah Under Secretary Government of Gujarat Health and Family Welfare Department has filed an affidavit in reply contesting this petition That affidavit has been filed on behalf of respondent Nos. 1 2 and 3. The facts as averred by the petitioner in the petition are not only not disputed in the affidavit in reply but rather they are very much admitted in that affidavit in reply However the defence of respondents No. 1 2 and 3 against the present petition is to be found in paragraph 5 of the Affidavit in Reply In Paragraph 5 in the affidavit in reply the deponent has stated as follows :-IT is submitted that at an earlier point of time the petitioner had filed Special Civil Application No. 3256/87 before this Honble High Court. At the relevant time the Govt. Authorities had incorrectly interpreted the recruitment rules by believing that it was open to the Govt. At the relevant time the Govt. Authorities had incorrectly interpreted the recruitment rules by believing that it was open to the Govt. Authorities to fill up 30% of posts in a particular department by persons having non medical qualification As a matter of fact the correct legal position is that maximum 30% of the posts in one particular cadre could be filled up by persons having non medical qualification provided persons with medical qualifications are not available. In the above referred circumstances as more than 30% of the total posts in the Department of Physiology were not filled up by persons having non medical qualification the Govt. Authorities believed that it was open to them to appoint the petitioner to the post of Asst. Professor in the subject of Physiology As the petitioner had filled above referred petition the concerned Govt. Authorities thought it expedient to take an assurance from the petitioner that he would withdraw the petition upon being appointed to the post of Asstt. Professor in the subject of Physiology letter dated 30-4-89 referred to in the petition was addressed to the petitioner It is submitted that the said letter was placed by the petitioners advocate on the record of this Honble Court and ultimately Special Civil Application no. 3256/87 was withdrawn by the petitioner. (Emphasis supplied.) ( 10 ) THE deponent in the affidavit-in-reply has further stated in paragraph 5 as follows It is most respectfully submitted that letter dated 30-4-89 should not have been written to the petitioner because it was not open to the Govt. Authorities to fill up more than 30% of the posts in the cadre of Assistant Professor in the subject of Physiology by persons holding non medical qualification. The respondent authorities regret the mistake committed by them It is true that the petitioner had acted upon the said letter and had withdrawn the petition but looking to the above referred legal position it was not open to the Respondent Authority to give appoinment to the petitioner as Assistant Professor in the Subject of Physiology. ( 11 ) IN paragraph 8 of the affidavit-in-reply the deponent has stated thus it is submitted that a person holding non medical qualification could be appointed as Asstt. Professor in the subject of Physiology only if a person holding medical qualification is not available. ( 11 ) IN paragraph 8 of the affidavit-in-reply the deponent has stated thus it is submitted that a person holding non medical qualification could be appointed as Asstt. Professor in the subject of Physiology only if a person holding medical qualification is not available. At present there are number of persons who could be appointed to the post of Assistant Professor in the subject of Physiology by way of promotion. In the circumstances it is submitted that the petitioner cannot be appointed to the post of Assistant Professor in the subject of Physiology and therefore it is most respectfully submitted that the petitioner cannot be granted the prayer made by him in the petition. (Emphasis supplied.) ( 12 ) NOW the stand taken by respondents No. 1 2 and 3 as aforesaid is wholly untenable. Firstly it is required to be noticed that undisputedly in 1985 the petitioner was found by the Gujarat Public Service Commission to be fit for the post of Assistant Professor of Physiology and that Commission had included his name in the waiting list at Serial No. 4 and yet when his turn for being appointed as Assistant Professor of Physiology arrived he was not appointed to that post. He therefore filed Special Civil Application No. 3256 of 1987. Initially that petition was opposed by the Government. However ultimately the Government found that the claim of the petitioner was irrefutable. The Government therefore worte to the petitioner letter Annexure B informing the petitioner that he was being appointed as Assistant Professor of Physiology. However before he could take charge of that post he would have to withdraw his Special Civil Application No. 3256 of 1987 and it would only be thereafter that he would be enabled to take charge of that post of Assistant Professor of Physiology. In this letter Annexure B to the petition the petition was also requested to withdraw the aforesaid petition under intimation to the Government. Undisputedly the petitioner immediately withdrew that petition and informed the concerned Government Department about the withdrawal of that petition. He thereafter made representations requesting the Government to honour its commitment made by the Government in the letter Annexure B. It is thereafter that the petitioner has been required to file this petition. Undisputedly the petitioner immediately withdrew that petition and informed the concerned Government Department about the withdrawal of that petition. He thereafter made representations requesting the Government to honour its commitment made by the Government in the letter Annexure B. It is thereafter that the petitioner has been required to file this petition. ( 13 ) IT is not in dispute that the petitioner does not possess a medical qualification in the sense that he is neither M. B. B. S. nor does he hold a similar degree from recognised university though ofcourse he holds the degree M. Sc. (Medical) in Physiology. But that admittedly is a non medical degree. The only ground on which respondents No. 1 2 and 3 oppose this petition is that under the rules which were then in force the petitioner who does not hold a medical degree but holds only a non medical degree could not have been appointed to the post of Assistant Professor of Physiology unless persons with medical qualifications were not available for being so appointed. Now this argument of the respondents is devoid of any merits even on the plain reading of the rules which were then in force in 1985 when he was selected by the Gujarat Public Service Commission or in 1987 when he filed the earlier writ petition being Special Civil Application No. 3256 of 1987 or even at the time the letter Annexure B was written by the Government to him on April 30 1989 or at the time when he withdrew his writ petition on May 2 1989 ( 14 ) HERE a reference to certain Rules becomes necessary. On August 4 1969 the Governor of Gujarat in exercise of the powers conferred upon him by the proviso to Article 309 of the Constitution of India in supersession of the earlier recruitment rules for the post of Lecturer in Physiology made the rules to provid for regulating the recruitment to the post of Lecturer in Physiology at the Government Medical Colleges. Those rules were designated as `the Lecturer in Physiology Recruitment Rules 1969 (to be hereinafter referred to for the sake of brevity as the 1989 Rules ). Those rules were designated as `the Lecturer in Physiology Recruitment Rules 1969 (to be hereinafter referred to for the sake of brevity as the 1989 Rules ). Rule 2 of the 1969 Rules provide as follows:2 Appointment to the post of Lecturer in Physiology at Government Medical Colleges shall be made either - (A) by promotion of a person of proved merit and efficiency from amongst Junior Lecturers in Physiology working in Medical College and who possesses the accademic qualification and teaching experience prescribed for appointment by direct. selection or (B) by direct selection. RULE 3 of the 1969 Rules in so far as is material provides as follows:3 To be eligible for appointment by direct selection to the post mentioned in rule 2 a candidate must - (I) be not more than 35 years of age. (II) possess :- (a) M. B. B. S. degree of a statutory university in Gujarat or any other qualification specified in the first or second schedule to the Indian Medical Council Act 1956 and (B) A post graduate degree in physiology or an equivalent qualification recognised by the Medical Council of India. ( 15 ) IT appears that in 1970 in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India the Governor of Gujarat directed that the nomenclature of Lecturer in the Government Medical and Dental Colleges in the State as referred to in 1969 Rules shall be changed to that of Assistant Professor. A notification for this purpose was issued on February 6 1970this would mean that wherever the word Lecturer appeared in the 1969 Rules the same shall have to be read as Assistant Professor. ( 16 ) THEREAFTER in 1973 once again the Governor of Gujarat amended the 1969 Rules by a notificatin dated April 24 1973 whereby the new proviso came to be inserted after the third proviso to Rule 3. That newly added proviso reads as follows:provided further that notwithstanding anything contained in sub-clauses (a) and (b) of clause (ii) of this rule to the extent of 30 percent the posts of Assistant Professor of Physiology may be filled by Non-Medical man possessing post-graduate degree or qualification in the research subject of physiology namely M. Sc. Ph. D. or B. Sc. of a statutory University in the State of Gujarat or its. Ph. D. or B. Sc. of a statutory University in the State of Gujarat or its. equivalent qualification recognised by the Medical Council of India preference being given to a candiate possessing basic medical qualification (between medical and non-medical candidates ). ( 17 ) THUS after the amendment of the 1969 Rules made by the notification dated April 24 1973 it was permissible to the Government to fill up the post of Assistant Professor of Physiology to the extent of 30% of the posts by non-medical men possessing interalia post-graduate degree in Physiology namely M. Sc. in Physiology. Admittedly the petitioner holds such a degree. Once again admittedly in pursuancde to these Rules the Gujarat Public Service Commission selected the petitioner for the post and placed his name in the select list. Upto 30% of the posts of Assistant Professor of Physiology it was permissible to the Government to fill up posts by non-medical men like the petitioner. Of course the amendment to the 1969 Rules made by the notification dated April 24 1973 did speak about preferance being given to a candidate possessing basic medical qualification (between medical and non-medical candidates ). But this last mentioned concept of preference being given to candidates possessing basic medical qualification between medical and non-medical candidates does not take away the power of the Government to appoint to the extent of 30 percent to the post of Assistant Professor from amongst persons who are non-medical men if such persons possess interalia post-graduate degree in Physiology. The last mentioned concept of preference being given to a candidate possessing basic qualification between medical and non-medical candidates does not put an embargo upon the Governments power to make appointments to the posts of Assistant Professor upto the extent of 30% of the posts from amongst the persons who are non medical men. It only speaks of a preferance being given. It only speaks of a preferance being given. It does not put an embargo or does not prohibit the Government from making appointments of persons who are non-medical men to the posts of Assistant Professor of Physiology to the extent of 30% of such posts from amongst the persons who are non-medical persons who possess the other qualification as prescribed in the proviso which came to be newly added to the 1969 Rules by the notification dated April 24 1973 ( 18 ) WHAT is sought to be canvassed in the affidavit-in-reply in the present petition is that upto a maximum of 30 percent of the posts in one particular cadre persons having non-medical qualifications could be appointed provided persons with medical qualifications are nor available. Neither in the 1969 Rules as originally framed nor as they stood amended by the amendment thereto made in 1973 do we find any such concept as is now sought to be canvassed in paragraph 5 of the affidavit-in- reply where it is stated that maximum upto 30 percent of the posts in one particular cadre can be filled up by the persons having non-medical qualification provided persons with medical qualification are not available. To put it differently in the 1969 Rules as originally framed or even after their amendment in 1973 there is no provision in the Rules which says that persons with non-medical qualification could be appointed to the posts of Assistant Professor of Physiology only it persons with medical qualification are not available. Therefore the stand that is now taken in the affidavit-in-reply namely that there was an error on the part of the Government authorities in the matter of construction of the Rules and it was that error which led to the Government writing to the petitioner the letter Annexure B assuring him that he was being appointed as Assistant Professor of Physiology has no validity. When in 1985 the petitioner was selected by the Gujarat Public Service Commission when in 1987 he was required to file the earlier writ petition when in 1989 the respondent Government wrote to the petitioner letter Annexure B at all these times the position of the rule was that upto 30% of the posts of Assistant Professor could be filled up by persons having non medical qualifications. The only rider was that the Government may give preference to a person having medical qualifications as against a person not holding such qualification if both of them are available. But that would not be equivalent to saying that person holding non-medical qualification could be appointed only if persons holding medical qualifications are not available. Nowhere in the rules as they governed the field till 1989 such a concept was to be found. Such a concept has been brought in for the first time in the affidavit-in-reply without there being any basis for the same. I may mention here that even when the petitioner filed the present petitions in April 1991 such a concept was nowhere in the Rules. The petitioner was rightly selected by the Gujarat Public Service Commission for being appointed to the post of Assistant Professor of Physiology. Even so the Government did not appoint him to the post of Assistant Professor when his turn carne for being appointed. He was required to file the earlier writ petition. Upto a certain stage the Government opposed that writ petition and thereafter having found that the claim of the petitioner was uncontrovertible they wrote to the petitioner the letter Annexure B saying that he was being appointed to the post of Assistant Professor of Physiology and requested him to withdraw his earlier writ petition. The petition immediately withdraw that petition and thereafter once again the respondent Government did not act upon its own promise given to the petitioner in the latter Annexure B even though the petitioner acted upon the demand of the Government to withdraw his petition. This in my opinion was highly unfair on the part of the Government. ( 19 ) IN the present petition when it was taken up for arguments both on behalf of respondents No. 1 2 and 3 as also on behalf of the subsequently added respondents an attempt was made to rely upon ` the Professor Associate Professor Assistant Professor in G. S. S. Class I in the Government Medical Colleges and Attached Medical Institutes Recruitment Rules 1992 (to be referred hereinafter as the 1992 Rules ). IN exercise of the powers conferred upon him by the proviso to Article 309 of the Constitution of India and in supersession of all the existing recruitment rules made in that behalf the Governor of Gujarat made the 1992 Rules. IN exercise of the powers conferred upon him by the proviso to Article 309 of the Constitution of India and in supersession of all the existing recruitment rules made in that behalf the Governor of Gujarat made the 1992 Rules. Those rules were notified in the Government notification dated May 15 1992 Both Mr. Sompura the learned Assistant Government Pleader and also Mr. Vakharia the learned Senior Advocate who appeared for the newly added respondents placed very heavy reliance upon Rule 5 (a) of the 1992 Rules That Rule 5 (a) reads as follows:5 In case of non availability of a Medical candidate possessing requisite qualifications and experience for the posts in the non-clinical departments of Anatomy Physiology Pharmacology Micro-biology and Biochemistry the same may to the extent of 30 percent of the total number of posts in the cadre of Associate Professor and Assistant Professor be filled in by selecting candidates who posses Medical M. Sc. qualification and Ph. D. in the concerned subject. BOTH Mr. Sompura the learned Assistant Government Pleader and Mr. Vakharia the learned Senior Advocate for the newly added respondents contended that by virtue of this Rule 5 (a) now the post in non-clinical departments mentioned in Rule 5 (a) could be filled in to the extent of 30% by persons who do not possess medical qualifications only if persons with medical qualifications are not available. Further Mr. Vakharia the learned Senior Advocate argued that the petitioner does not hold the degree of Ph. D. therefore he could not be appointed as Assistant Professor in Physiology ( 20 ) THE argument is required to be rejected. Firstly it is required to be noticed that those 1992 Rules came into force only with effect from May 15 1992 that is during the pendency of this present petition. Nowhere in the rules there is any indication to show that there have any retrospective effect. The rules do not in so many words say that they have retrospective effect. Even by any implication the rules are not capable of being held to have any retrospective effect normally such rules have only a prospective effect. Therefore these 1992 rules cannot hold the field for the purpose of deciding the present petition. As said above the present petition has been filed in 1991 when the 1992 Rules were not in force. Even by any implication the rules are not capable of being held to have any retrospective effect normally such rules have only a prospective effect. Therefore these 1992 rules cannot hold the field for the purpose of deciding the present petition. As said above the present petition has been filed in 1991 when the 1992 Rules were not in force. For the first time by the 1992 Rules the concept of non-availability of persons holding medical qualifications has been brought in. The earlier concept was only of preference of a person holding medical qualification to the person not holding such qualifications. I have hereinabove dealt with the concept of preference. At the time the present petition was filed and at an earlier points of time nowhere in the Rules was there any concept of non-availability of persons holding medical qualifications being a condition precedent to the appointment of persons holding non-medical qualification being made. Therefore the respondent cannot now invoke Rule 5 (a) of the 1992 Rules to defeat the petitioners claim in the present petition. It is not understood nor was even Mr. Sompura learned Assistant Government Pleader in a positions to explain to me as to how the deponent of the affidavit in reply filed in the present petition on behalf of respondents No. 1 2 and 3 when sworned the affidavit-in-reply in 1991 came across the concept of non-availability of persons holding medical qualifications being a condition precedent to the appointment of persons who do not hold medical qualifications to the post of Assistant Professor of Physiology. It appears that perhaps when the affidavit-in-reply was sworn on June 10 1991 the 1992 Rules were in the process of framing and it is not unlikely that the deponent of the affidavit-in-reply was sworn on June 10 1991 the 1992 Rules were in the process of framing and it is not unlikely that the deponent of the affidavit-in-reply might have from those draft rules which ultimately came into effect as 1992 Rules brought the concept of non-availability of persons holding medical qualifications as a condition precedent to the appointment of persons holding non-medical qualifications to the post in question. Be that as it may one thing is certain that till the time the present petition carne to be filed in none of the Rules that governed the field was there any concept of non-availability of persons holding medical qualifications being a condition precedent to the appointment of persons not holding medical qualifications to the posts in question. In that view of the matter the petitioners claim in the present petition cannot be defeated by resorting to Rule 5 (a) of the 1992 Rules which were in force even at the time the affidavit-in-reply to the present petition was filed. . ( 21 ) THERE is another aspect of the matter. Nowhere in the affidavit-in-reply has the deponent spelt out that as at the time letter Anexure-B was written by the Government to the petitioner sufficient number of persons holding medical qualifications were available to be appointed on the posts of Assistant Professor of Physiology and therefore the petitioner could not have been appointed on that post on the ground that he does not possess medical qualification. In the affidavit-in-reply only an abstract proposition is canvassed by saying that as a matter of. fact the correct legal position is that maximum 30 percent of the posts in one particular cadre could be filled up by persons having non-medical qualifications provided persons with medical qualifications are no available. IN the affidavit-in-reply nowhere has the deponent stated nor by any other evidence respondents No. 1 2 and 3 have pointed out that at the time letter Annexure-B was written by the Government to the petitioner sufficient number of persons holding medical qualifications were available for being appointed to the posts of Assistant Professor in Physiology. Therefore it is not the case of the respondents that sufficient number of persons holding medical qualifications were available for being appointed to the posts of Assistant Professors in Physiology at the time the letter Annexure-B was written by the Government to the petitioner. Therefore it is not the case of the respondents that sufficient number of persons holding medical qualifications were available for being appointed to the posts of Assistant Professors in Physiology at the time the letter Annexure-B was written by the Government to the petitioner. That being the factual position even assuming that at the time the letter Annexure-B was written by the Government to the petitioner the concept of non-availability of persons holding medical qualifications as a condition precedent to the persons holding non-medical qualifications being appointed to the posts in question could have been invoked it was not possible to invoke that concept for as said just now it is not the case of the respondents that as at that time sufficient number of persons holding medical qualifications were available for being appoined to the posts of Assistant Professor. Considering the matter from that angle also there does not appear to be any error on the part of the Government in writing the letter Annexure-B to the petition whereby the petitioner was assured that he was being appointed to the post of Assistant Professor and that the only thing that was required to be done before he could take charge of the post of Assistant Professor was that he should withdraw his petition. That letter was written because I am sure the Government had no alternative but to concede that the petitioners claim for being appointed to the post of Assistant Professor of Physiology was irrefutable notwithstanding the fact that he did not possess medical qualification and he was simply M. Sc. (Medicine) in Physiology. It appears that after that letter was written for reasons not explained by respondents No. 1 2 and 3 they changed their mind and went back upon that letter Annexure-B and denied to the petitoner what was legitimately due to him and for which he was clamouring since about four years or at any rate since the time he filed the earlier writ petition in 1987. Such an approach on the part of the Government I am constrained to say displays an element of unfairness towards its own emplyee or officer. Such an approach on the part of the Government I am constrained to say displays an element of unfairness towards its own emplyee or officer. ( 22 ) ON the question whether the 1992 Rules can at all be invoked to defeat the present petition by the petitioner reference may be made to the decision in the case of P. Mahendran and others vs. State of Karnataka and others ( AIR 1990 SC 405 In that Judgment their Lordship of the Supreme Court have positedit is well settled rule of construction that 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 effect exisiting rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either intepretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 in the instant case does not contain any express provisions giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule seeking the change in the eligibility criteria for selection and appointment to the post of Motor Vehicles Inspectors was not retrospective it could not adversely affect the right of those candidates who were qualified for selection an appointment on the date they applied for the post moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing right of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment : moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter. IN that case the process of recruitment to the post of Motor Vehicle Inspectors had been commenced by the concerned authorities. The Rules which governed the filed at that time laid down the minimum qualification requiring the candidate to be holder of diploma in Automobile Engineering or Mechanical Engineering. IN that case the process of recruitment to the post of Motor Vehicle Inspectors had been commenced by the concerned authorities. The Rules which governed the filed at that time laid down the minimum qualification requiring the candidate to be holder of diploma in Automobile Engineering or Mechanical Engineering. Some Litigations were commenced during the process of selection for the post of Motor Vehicle Inspectors and certain stay orders were issued by the High Court. The said stay orders were thereafter modified and the process of recruitment was going on. Certain candidates were selected as a result of that process. meanwhile the State of Karnataka amended the recruitment rules on May 4 1987 and omitted the qualification of diploma in Mechanical Enginearing for the post of Motor Vehicle Inspectors. The result of that amendment was that the holders of diploma in Automobile Enginearing became exclusively eligible for appointment to the post of Motor Vehicle Inspectors and the holders of diploma in Mechanical Engineering ceased to be eligible for selection and appointment to the said post. Dispute thereafter arose on a question whether persons holding diploma in Mechanical Engineering who were under consideration for being appointed to the posts of Motor Vehicle Inspectors even before the Rules came to be amended on May 4 1987 would get out of the sphere of consideration. The matter went to the Karnataka Administrative Tribunal Bangalore. The Tribunal held that after the amendment of the recruitment rules in May 1987 the Commission could not make selection or determine the result on the basis of the Rules which existed prior to May 1987 and as such the selection of the candidates holding of diploma in Mechanical Engineering was illegal as the holders of diploma in Mechanical Engineering ceased to be eligible for appointment to the post of Motor Vehicle Inspectors with effect from the date of publication of the amending rules. ( 23 ) THE matter was carried to the Supreme Court and Their Lordships of the Supreme Court considered a number of cases bearing on the point and finally held -IT is true that a candidate does not get any right to the post by merely making an application for the same but a right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules. If a candidate applies for a post in response to adverstisement issued by Public Service Commission in accordance with recruitment Rules he acquires right to be considered for selection with the then Rules. This right cannot be affected by amendment of any Rule unless the amending Rule is retrospective in nature. In the instant case the Commission had acted in accordance with the then existing rules and there is no dispute that the appellants were eligible for appointment their selection was not in violation of the Recruitment Rules. The Tribunal in our opinion was in error in setting aside the select list prepared by the Commission. (Emphasis supplied) ( 24 ) THE aforesaid proposition of law enunciated by Their Lordships of the Supreme Court would equally apply to the facts of the case before me for as indicated hereinabove undisputedly in 1985 the petitioner applied to the Public Service Commission for the post of Assistant Professor of Physiology. He was selected by the Commission in accordance with the then existing Rules. His name was put on the select list/wait list and yet he was not appointed by the Government. He therefore filed a writ petition. During the pendency of that writ petition the Government wrote to the petitioner the letter Annexure B to this petition and tole him that he was being appointed to the post of Assistant Professer of Physiology and that he should therefore withdraw his writ petition. The petitioner withdrew his writ petition and thereafter once again the Government unfairly refused to carry out its assurance given by it to the petitioner in the letter Annexure-B to the petition. The petitioner therefore has been required to file this present petition. On these facts I think the enunciation of law as made by their Lordships of the Supreme Court in the decision in the case of P. Mahendran (supra) equally applying here. Therefore the contest now put up by respondents No. 1 2 and 3 and even by the newly added respondent based on Rule 5 (a) of 1992 Rules cannot be allowed to defeat the claim of the petitioner which otherwise in my opinion is fool-proof. ( 25 ) IT is a very sorry state of affairs that the petitioner who is otherwise qualified for the post of Assistant Professor in Physiology is being denied his dues at least since 1987. ( 25 ) IT is a very sorry state of affairs that the petitioner who is otherwise qualified for the post of Assistant Professor in Physiology is being denied his dues at least since 1987. He had to file the earlier petition and as the Government has backed out from its promise given in Annexure-B he has been again required to file the present petition which has consumed about three years on account of pendency of large number of matters before this Court. It would be in the conspectus of these facts that the relief to be granted to the petitioner on this petition shall have to be based. ( 26 ) IF the Government had not written to the petitioner the letter Annexure-B the petitioner would not have I am sure withdrawn his earlier petition and would have chosen to take the decision of the Court on that petition. After the Government wrote to the petition letter Annexure-B the Government had no justification not to appoint the petitioner to the post of Assistant Professor of Physiology soon after the petitioner withdrew his earlier petition being Special Civil Application No. 3256 of 1987. The petitioner withdrew that petition on May 2 1989 Immediately thereafter or within a reasonable period from that dale the respondent Government should have acted upon its promise and appointed the petitioner to the post of Assistant Professor of Physiology. That having not been done I think the respondent Government shall have to be directed to act upon its promise so appropriately that the petitioner gets all the benefits which he would have otherwise got if the Government had acted on its promise soon after the petitioner withdrew his earlier petition. The petitioner withdraw his earlier petition on May 2 1989 Making an allowance for some time in the matter of communication to the various Government Departments and the fact about the petitioner having withdrawn that earlier petition I think latest by June 15 1989 the petitioner should have appointed to the post of Assistant Professor of Physiology. ( 27 ) IN view of the foregoing discussion I pass the following order :the petition is allowed. ( 27 ) IN view of the foregoing discussion I pass the following order :the petition is allowed. Respondent No. 1 is directed to act upon their letter Annexure-B to the petition addressed to the petitioner promising him that he was being appointed as Assistant Professor in Physiology and within one month from now pass appropriate orders granting all the benefits to the petitioner as if he had been appointed as Assistant Professor of Physiology with effect from June 15 1989 In the facts and circumstances of the case respondent No. 1 is also directed to pay to the petitioner costs of this petition which as quantified at Rs. 2000/- (Rupees Two thousand only ). Rule is made absolute accordingly. D. S. Permitted. Petition Allowed. .