JUDGMENT : M.K. Hanjura, J. 1. By the medium of this LPA, the appellant has assailed the order dated 09th of May, 2017 of the writ Court, passed in SWP No. 1810/2013 on the premise that the learned writ Court, while rendering the impugned order, has erred in law, inasmuch as, it has not appreciated the well settled proposition of law that a vacancy is required to be filled in accordance with the rules in force on the date it becomes available. It has further been pleaded in the appeal that, admittedly, the vacancy of the Lecturer Nursing, in the present case, became available in the year 2011 and the selection process was initiated in terms of Sher-i-Kashmir Institute of Medical Sciences Gazetted Recruitment Rules 1998 (for short Recruitment Rules, 1998). Therefore, it was not legally permissible in law for the respondent-SKIMS to abort the process of selection, which had already been initiated and begin a process to fill up the post in pursuance of the Amended Rules of 2013, although the amended rules clearly stipulated that the amendment shall have a prospective effect. It has further been stated that in view of the above, the impugned judgment suffers from an error. It cannot sustain in the eyes of law and is liable to be set aside. 2. It is further stated in the appeal that the petitioner-appellant has the right of consideration, vested in her by law, for being promoted by way of selection from amongst the eligible Senior Clinical Instructors and although the process for considering the selection of all eligible candidates was initiated, yet the action of the respondent-SKIMS in abandoning such process in the middle of things by taking recourse to the Amended Rules, is not only violative of the fundamental right of consideration guaranteed to the petitioner-appellant under article 16(1) of the Constitution of India but is also against the mandate of law declared by the Apex Court on the subject. It has also been averred that the impugned order dated 09-05-2017, in the given legal and factual scenario, is invalid and as a sequel thereto, it is bad and unsustainable in law. It has also been averred that the impugned order dated 09-05-2017, in the given legal and factual scenario, is invalid and as a sequel thereto, it is bad and unsustainable in law. In the end, it has been prayed that the appeal be accepted and the impugned judgment dated 09-05-2017, of the learned writ Court, passed in SWP 1810/2013, be set aside and the writ petition be allowed in terms of the reliefs prayed therein. 3. The respondent Institute submitted the memo of objections/reply in opposition to the writ petition, inter alia, urging therein that while deliberating on the agenda regarding re-organization of the cadre strength of the College of Nursing, SKIMS, as per norms laid down by the Indian Nursing Council for intake capacity of 50 seats, it was resolved to adopt the Indian Nursing Council norms for Nursing College, SKIMS. The recommendations of Standing Finance Committee stands approved by the Governing Body of SKIMS in its (XXXVII) meeting held on October 28, 2011 and necessary orders have been issued vide Government Order No. 07-SKIMS of 2012 stating therein that the recruitment criteria/method of recruitment shall be notified separately. Subsequently, a four member Committee under the convenorship of Dean, Medical Faculty, SKIMS was constituted to lay down the guidelines pertaining to the recruitment/promotion and strength of Faculty of/College of Nursing having intake capacity of 50 students for B.Sc. Nursing and 25 students for M.Sc. Nursing. The Committee offered its recommendations, which were administratively examined and accordingly the Agenda Note with regard to eligibility criteria/method of recruitment to be adopted for selection/promotion of Faculty for the Nursing College was placed before the Standing Academic Committee, SKIMS for consideration and recommendation again. The Standing Academic Committee, which met under the Chairmanship of Chief Secretary, J & K State in Civil Secretariat, Srinagar, on October, 10, 2012 while deliberating on the Agenda Note, recommended the method of recruitment/essential qualification for entry level Faculty posts, viz. Lecturer and the same was notified vide Government Order No. 76-SKIMS of 2013, dated 16-09-2013. 4. Before adverting to the merits of the appeal, it will be profitable to quote the relevant paragraphs of the impugned order dated 09-05-2017, of the writ Court, that have a bearing on the questions/issues raised in the appeal. These are as under:- "15. Mr. Lecturer and the same was notified vide Government Order No. 76-SKIMS of 2013, dated 16-09-2013. 4. Before adverting to the merits of the appeal, it will be profitable to quote the relevant paragraphs of the impugned order dated 09-05-2017, of the writ Court, that have a bearing on the questions/issues raised in the appeal. These are as under:- "15. Mr. Z.A. Qureshi, learned Senior counsel while reiterating the pleadings has strengthened his argument by submitting that the policy of the respondent - SKIMS with reference of change of method of recruitment against the post of Lecturer Nursing by making it 100% direct recruitment notified vide Government Order No. 76-SKIMS of 2013, dated 16-09-2013 has prospective effect and cannot be applied to the case of the petitioner who was already considered for such promotion by initiating the process and inviting her for interview in terms of notice dated 25th July, 2011 read with notification dated 26th July, 2011. In other words, it is stated, that the process initiated by the respondents for promotion of the petitioner in terms of Recruitment Rules of 1998, is required to be taken to the logical conclusion and cannot be defeated by amending the rule midway to the disadvantage/position of the petitioner. Mr. Qureshi learned senior counsel has referred to and relied upon judgment of Supreme Court delivered in case titled State of Utter Pradesh and Ors. v. Mahesh Narain and Ors., reported in (2013) 4 SCC 169 . 16. Mr. M.A. Rathore, learned AAG, appearing counsel for SKIMS submits that while selection committee was considering the eligible candidates for promotion in the year 2011 and on consideration of the filling up of the post of Lecturer it was noticed that the post of Lecturer was re-designated as Lecturer-cum-Jr. Reader vide Government Order No. 29-SKIMS of 2008, dated 10-03-2008 and the Recruitment Rules were not notified for the said post in tune with the re-designated post. It was, therefore, decided to defer the case till finalization of recruitment rules of the post. 17. It is submitted that the matter was processed and the competent authority decided to amend the rules by making the post 100% to be filled up by Direct Recruitment in terms of notification dated 18-09-2013. 20. It is submitted that the petitioner has neither challenged the amended method of recruitment nor the selection process initiated for direct recruitment. 21. 17. It is submitted that the matter was processed and the competent authority decided to amend the rules by making the post 100% to be filled up by Direct Recruitment in terms of notification dated 18-09-2013. 20. It is submitted that the petitioner has neither challenged the amended method of recruitment nor the selection process initiated for direct recruitment. 21. It is also submitted that the selection process initiated for filling up of post of Lecturer Nursing stands concluded and the eligible candidates were appointed along with the respondent No. 4, Zareefa Bano. 22. It is submitted that the petitioner has not challenged the selection/appointment of those candidates, therefore, in absence of challenge to the recruitment rules of 2013 and selection/appointment of the candidates, no relief can be granted. Mr. Rathore, Ld. AAG in support of his argument has referred to and relied upon Supreme Court judgment in case titled High Court of Delhi and Anr. v. A.K. Mahajan and Ors., (2009) 12 SCC 62 . 23. Submission of Mr. Rathore, AAG has substance, as the process was initiated for filling up of the post only after notifying the criteria in terms of Government Order No. 76-SKIMS of 2013, dated 18-09-2013 neither the said Government order nor selection/appointment of selected candidates are under challenge. Submission has further strengthen with reference to effect of the amended rule as the same has not caused any prejudice to the interest of petitioner. 24. Unless the amended rule providing method of recruitment as also the selection process which culminated into selection/appointment, of the eligible candidates is challenged no relief can be granted to the petitioner." 5. Heard and considered. 6. It needs must be said that the vacancy of Lecturer Nursing became available in the year 2011. The petitioner along with others were accordingly called for the interview. What requires to be appreciated is that the Government order dated 16.09.2013 provided that, as recommended by the Standing Academic Committee and approved by the Governing Body, SKIMS, it is hereby ordered that henceforth the following shall be the method of recruitment/essential qualification for filling up of the teaching posts of Madr-e-Meherban Institute of Nursing, Sciences and Research, SKIMS: Sr.No. Name of the post Method of recruitment/essential qualification 01 Tutor 15600-39100+5600 100% by direct recruitment from amongst persons M.Sc.(Nursing) or B.Sc. Nursing with Post Basic Diploma in Clinical Specially. 02. Nursing with Post Basic Diploma in Clinical Specially. 02. Lecturer 15600-39100+6600 100% by direct recruitment, from amongst persons possessing M.Sc. Nursing from a recognized institute having 03 years’ experience after M.Sc.(Nursing). Note : There will be no age bar for in-service candidates. 03. Associate Professional/Reader 15600-39100+7600 100% promotion by selection from Lecturers possessing Master’s Degree in Nursing and 10 Years’ service after M.Sc. (Nursing) of which at least 07 years as Lecturer. (Nursing) 04. Vice-Principal 15600-39100+7600 To be filled from amongst Associates Professor/Reader 05 Professor-cum-Principal 37400-67000+8700 100% promotion by selection from Associate Professors having Master’s Degree in Nursing and having 14 years’ service after M.Sc. (Nursing) in College of Nursing of which at least 4 years as Associate Professor. 7. On 25th of July, 2011, the respondent Institute, initiated selection process for promotion by selection to the post of lecturer Nursing, borne on the cadre of the Institute of Medical Sciences Gazetted Service, in terms of the Recruitment rules, 1998 detailed below: Class Category Grade Minimum qualification for direct recruitment Method of recruitment (method)/proportion) III Senior Lecturer 3000-5000(pre-revised) …… 100% by selection from class IV from amongst persons having at least 3 years service in that class IV Lecturer 10000-15200 M.Sc. Nursing with 3 years teaching experience after M.Sc. Nursing 50% by direct recruitment. 50% by selection from class V from amongst persons having M.Sc. in Nursing and 3 years service in that class V Sr. Clinical Instructor 9000-14100 ……. …… 8. The appellant not only possessed the requisite qualification prescribed by the Rules of 1998 for promotion by selection to the post of Lecturer Nursing but she also figured at S. No. 1 in the order of merit. 9. Risking repetition, it is stated that the process for promotion by selection from amongst the eligible Senior Clinical Instructors to the post of Lecturer Nursing was initiated by a Call Letter bearing No. SIMS-302-08-71-2011-1921-24, dated 25-07-2011 issued by the respondent Institute calling upon the eligible Senior Clinical Instructors (including the petitioner) to appear for interview before the Selection Committee on 27-07-2011 at 11.00 AM along with supporting documents. This Call Letter was followed by another communication bearing No. SIMS-302-08-72-2011-1961-64, dated 26-07-2011 intimating that the selection Committee scheduled to meet on July 27th, 2011 to consider the promotion by selection for the post of Lecturer Nursing shall now meet on 30-07-2011 at 11.00 AM. This Call Letter was followed by another communication bearing No. SIMS-302-08-72-2011-1961-64, dated 26-07-2011 intimating that the selection Committee scheduled to meet on July 27th, 2011 to consider the promotion by selection for the post of Lecturer Nursing shall now meet on 30-07-2011 at 11.00 AM. By yet another communication bearing No. SIMS-302-08-71-2011-2005-08, dated 27-07-2011, it was intimated that the date of interview for the post of Lecturer Nursing is preponed to July, 29th, 2011 at 11AM. However, the process of selection was scuttled, stultified and set at naught under the garb of the adoption of the Indian Nursing Council Norms. 10. From a bare glimpse of the Government order dated 16-09-2013, what comes to the fore is that it is prospective in operation and application, as is discernible from its text and texture. The settled legal position occupying the field has been laid down by the Supreme Court of India in the case of Y.V. Rangaiah and others v. J. Sreenivasa Rao and others, reported in (1983) 3 SCC 284 . It is luminous and clear and Para 09 of the same assumes significance in the context of the decision of the appeal, which is reproduced hereunder: "9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Register Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules." 11. Para 27 of the law laid down in the case of P. Murugesan and others v. State of Tamil Nadu and others, 1993 SCC Vol II page 340, repeats and reiterates the same view and it reads as under: "27. In our opinion Section 87 does indicate and manifest the concern of the Legislature that the vacancies occurring in the Corporation Service should not be kept unfilled for a period of more than three months. Sub-section (3) which provides for the consequence of default on the part of the council to abide by sub-section (1) emphasizes the concern of the Legislature. So also does sub-section (2). Sub-section (4) says that if there is going to be any delay or if a suitable or qualified person is not available, the council may appoint a person on temporary basis. The said provision is, therefore, analogous to, and indeed more specific than rule 4 of the Andhra Pradesh Registration and Subordinate Service Rules considered in Rangaiah v. Srinivasa Rao. Accordingly it must be held that the learned counsel for respondents 3 to 8 is right in his submission that the vacancies occurring prior to three months before the date of commencement of the impugned amendment ought to have been filled in accordance with the rules then obtaining. At the same time we cannot fail to recognize the force in the argument of the learned counsel for the appellants that the respondents not having raised the said contention in the High Court i.e., before the learned Single Judge or the Division Bench should not be allowed to raise the same in this Court for the first time. On a balancing of the contending equities, we are of the opinion that the following direction would be the appropriate one in the particular facts and circumstances of this case. On a balancing of the contending equities, we are of the opinion that the following direction would be the appropriate one in the particular facts and circumstances of this case. The direction is this: The Corporation shall ascertain the vacancies in the category of Assistant executive engineers, that have arisen three months prior to the coming into force of the impugned amendment (introducing the quota of 3:1 as between degree-holders and diploma-holders) and shall work out the vacancies which would have gone to the diploma-holders if unamended Rules had been followed. The Corporation shall also ascertain which of the diploma-holders would have been promoted in those vacancies. Such diploma-holders will be promoted in the vacancies that may be existing as on today and those that may arise in future. Until these diploma-holders are so promoted to the category of Assistant Executive Engineers, no degree-holders shall be promoted. After these diploma-holders are so promoted and thereafter, it is obvious the amended Rules shall be applied and followed. It is further directed that as and when a diploma-holder is promoted in pursuance of this direction, his promotion shall be given effect to from the date he ought to have been promoted. Such diploma holders promotes shall be entitled to the benefit of seniority and pay-fixation flowing from such retrospective promotions, but they shall not be entitled to the arrears of difference in salary for the period they have not actually worked as Assistant Executive Engineers". 12. Paras 4 & 5 of the law laid down in the case of P. Mahendran and others v. State of Karnataka and others, reported in 1990 SCC Vol. I page 411, also have a direct bearing on the facts of the instant case and these read as under: "4. There is no dispute that under the Recruitment Rules as well as under the advertisement dated 6.10.1983 issued by the Public Service Commission, holders of Diploma in Mechanical Engineering were eligible for appointment to the post of Motor Vehicle Inspectors along with holders of Diploma in Automobile Engineering. On receipt of the applications from the candidates the Commission commenced the process of selection as it scrutinized the applications and issued letters for interview to the respective candidates. On receipt of the applications from the candidates the Commission commenced the process of selection as it scrutinized the applications and issued letters for interview to the respective candidates. In fact the Commission commenced the interviews in August 1984 and it had almost completed the process of selection but the selection could not be completed on account of interim orders issued by the High Court at the instance of candidates seeking reservation for local candidates. The Commission completed the interviews of all the candidates and it finalized the list of selected candidates by 2nd June 1987 and the result was published in the State Gazette on 23rd July 1987. In addition to that the selected candidates were intimated by the Commission by separate letters. In view of these facts the sole question for consideration is as to whether the amendment made in the Rules on 14th May 1987 rendered the selection, illegal. Admittedly the amending Rule does not contain any provision enforcing the amended Rule with retrospective effect. In the absence of any express provision contained in the amending Rule it must be held to be prospective in nature. The Rules which are prospective in nature cannot take away or impair the right of candidates holding Diploma in Mechanical Engineering as on the date of making appointment as well as on the date of scrutiny by the Commission they were qualified for selection and appointment. In fact the entire selection in the normal course would have been finalized much before the amendment of Rules, but for the interim orders of the High Court. If there had been no interim orders, the selected candidates would have been appointed much before the amendment of Rules. Since the process of selection had commenced and it could not be completed on account of the interim orders of the High Court, the appellants' right to selection and appointment could not be defeated by subsequent amendment of Rules. 5. 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 either interpretation it ought to be construed as prospective only. 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 either 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 Rule of 1987 does 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 Rule was not retrospective, it could not adversely affect the right of those candidates who 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 Rule 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 unnecessary hardship to those who have no control over the subject matter". 13. Having examined the conspectus of the decisions on the questions raised in the appeal, it can well be said that the petitioner could not have been denuded of her right of consideration when the process for selection was initiated in the year 2011 by taking resort to and refuge under the Government order passed in the year 2013, which, on the face of it, provides that it shall be prospective in nature. This order could not have been invoked by the respondent-Institute to its aid in aborting the selection process midway. The Amended Rules, as is brought to the fruition from the judgments detailed above, could not have been invited by the respondents for filling up the post of Lecturer Nursing when the process of selection was initiated in the year 2011 as per the rules that were in force at that moment and under which the petitioner had the right of consideration. A vacancy is required to be filled up in accordance with the rules as are in force on the date when it is required to be supplied. A vacancy is required to be filled up in accordance with the rules as are in force on the date when it is required to be supplied. The vacancy had to be filled up as per the mandate of the Recruitment Rules of 1998 and not on the basis of rules that were framed in the year 2013. It was not legally permissible for the respondent Institute to truncate the selection process, already initiated, midway, and fill up the same in accordance with the Amended Rules of 2013, particularly when the Amended Rules clearly provided that the amendment shall apply henceforth, that is after its promulgation. The learned Single Judge appears to have wrongly come to the conclusion that the selection process was initiated in the year 2013 after the Amended Rules came to the surface. Viewed in the above context, the judgment of the learned Single Judge is set aside. The respondent Institute shall consider the case of the petitioner in light of the Recruitment Rules of the year 1998 with utmost dispatch, preferably within a period of eight weeks.