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2001 DIGILAW 1344 (AP)

G. Aruna Bhikshu v. M. Sambasiva Raju

2001-10-21

S.B.SINHA, V.V.S.RAO

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S. B. SINHA, CJ. ( 1 ) THE writ appeal is preferred by the third respondent-appellant against an interlocutory order passed in the writ petition. With the consent of the learned Counsel for the parties, we also heard the arguments, in the writ petition and the same is being disposed of. The facts leading to the filing of the writ appeal are in brief as follows: ( 2 ) ON 8-11-1999, the respondent- university of Hyderabad issued a notification inviting applications for the post of Lecturer in Dance and also for other posts. In the selection process, the petitioner s case was unanimously recommended by the selection Committee. However, the executive Council of the University has allegedly deviated from the recommendations of the Selection Committee on the ground that the petitioner does not possess the qualification of National Eligibility Test (for short net ) and appointed the third respondent-appellant as she possessed the qualification in NET. The petitioner filed the writ petition and obtained orders of interim suspension of the order appointing the appellant - 3rd respondent. Aggrieved by and dissatisfied with the orders of the learned single Judge, the present writ appeal is filed. ( 3 ) THE qualifications that are prescribed for the posts of Lecturers in Dance which come within the purview of Fine Arts are as follows: good academic record with at least second class (c) in the seven point scale Master s degree in the relevant subject or an equivalent degree or diploma recognised by the university; and two years research of professional experience or evidence of creative work and achievement in his/her field of specialisation or a combined research and professional experience of three years in the field as an artist of outstanding talent; or a traditional or a professional artist with highly recommendable professional achievement in the subject concerned. ( 4 ) IT is not in dispute that that the petitioner possesses requisite qualifications and experience and he is also the holder of ph. D. degree. He admittedly does not possess NET qualification. He was called for the interview together with other eligible candidates. A panel was prepared by the selection Committee wherein the name of the petitioner was at serial No. 1 whereas that of the unofficial respondent was at serial no. 2. D. degree. He admittedly does not possess NET qualification. He was called for the interview together with other eligible candidates. A panel was prepared by the selection Committee wherein the name of the petitioner was at serial No. 1 whereas that of the unofficial respondent was at serial no. 2. The University Grants Commission, 2nd respondent in the writ petition is the main funding body which accords sanction to the posts as well as prescribes guidelines to make such appointments and such guidelines being mandatory in nature are binding on the University. In consultation with the UGC. , the University appointed the unofficial respondent in the writ petition who possessed NET qualification and who was second in the order of preference recommended by the Selection committee. ( 5 ) THE learned Counsel appearing for the unofficial respondent submits that passing of NET qualification is a prerequisite one. ( 6 ) IT is not in dispute that in the recruitment notification which was issued on 8-11-1999, qualification for the post of lecturers in Painting and Dance had been stated separately. The qualification of net even in terms of the aforementioned recruitment was required to be possessed only by the candidates who do not hold the Phd degree. The University Grants commission in its Regulations, 2000 dated 4-4-2000 laid down: no person shall be appointed to a teaching post in University or in any of institutions including constituent or affiliated colleges recognised under clause (f) of Section 2 of the University Grants Commission Act, 1956, or in an institution deemed to be a University under Section 3 of the said Act in a subject if he/she does not fulfil the requirements as to the qualifications for the subjects as provided in the Annexure :"provided that any relaxation in the prescribed qualifications can only be made by the university Grants Commission in a subject in which NET is not being conducted or enough number of candidates are not available with NET qualifications for a specified period only. (This relaxation if allowed, would be given based on sound justification and would apply to affected universities for that particular subject for the specified period. No individual applications would be entertained. ). (This relaxation if allowed, would be given based on sound justification and would apply to affected universities for that particular subject for the specified period. No individual applications would be entertained. ). " ( 7 ) IT is stated across the Bar that the university Grants Commission by its letter dated 15-1-2001 directed that the qualification of NET is not necessary for the post of Lecturer in Dance. It is now well settled principle of law that the qualification as notified shall be taken to be the qualifications required to be possessed by a person for the purpose of appointment to a post. ( 8 ) IN Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18 , the apex Court observed: 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. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. ( 9 ) THE notification having been issued in November, 1999, this regulation issued on 4-4-2000 cannot be said to have any application whatsoever. ( 10 ) IN P. Malteesh Y. Annigeri v. State of Karnataka, AIR 1990 SC 405 , it was observed : it 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 affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of cither interpretation 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. If a rule is expressed in language which is fairly capable of cither interpretation 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 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending rules were not retrospective, it could not adversely affect the right of those candidates they were qualified for selection and 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 rules could not affect the existing rights 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 necessary hardship to those who have no control over the subject-matter. ( 11 ) IT is pertinent to note the decision in Neelima Misra v. Harinder Kaur paintal, AIR 1990 SC 1402 , wherein it was observed. . . . . Therefore, the Executive Council shall make appointments as per the position or ranking obtained in the recommendation, unless any other rule requires otherwise. Section 31 (8) (a) seems to suggest that if the executive Council wants to agree with the recommendation and appoint candidates in the order of merits, no reasons are to be given. But if it wants to disagree with the recommendations made by the Selection committee, it must give reasons for disagreement. It has however, no power to override the recommendation and appoint a candidate of its own choice. It may disagree, but should give reasons for disagreement and refer the matter under Section 31 (8) (a) to the Chancellor. Then the decision of the chancellor shall be binding on the Executive council. It has however, no power to override the recommendation and appoint a candidate of its own choice. It may disagree, but should give reasons for disagreement and refer the matter under Section 31 (8) (a) to the Chancellor. Then the decision of the chancellor shall be binding on the Executive council. ( 12 ) KEEPING in view the fact that the writ petitioner possessed the requisite qualification on the date of issuance of the recruitment notification and further in view of the fact that the University Grants commission itself exempted, the writ petitioner in our opinion must succeed for the reasons: (1) the petitioner possessed all the requisite qualifications as on the date of issuance of the recruitment notification; (2) The University Grants Commission itself has exempted possession of qualification of NET as mentioned in the schedule appended to the regulations issued on 4-4-2000 as regards the fine arts. (3) The UGC has clarified the position in its letter dated 15-1-2000. ( 13 ) THE appointment of the respondent no. 3 in preference to the petitioner only on the ground that the petitioner does not possess NET qualification, thus, must be held to be bad in law. The Executive council is, therefore, directed to consider the case of the petitioner for his appointment afresh keeping in view the above observations. ( 14 ) THE writ petition is allowed and consequently the writ appeal is dismissed. No costs.