JUDGMENT : Biswanath Rath, J - Since both the writ petitions indicated hereinabove have a common relief though involving two writ petitioners, this Court finding one set of pleading involving both the cases and also for having a common relief, on the consent of all parties, both the writ petitions are decided by a common hearing as well as common judgment. 2. Heard Shri Biswajit Moharana, learned counsel appearing for the petitioners, Shri P.K. Padhi, learned Central Government counsel appearing for the Union of India as well as for the Establishment and Shri P.K. Ray learned counsel appearing for opposite party no.5. 3. Both the writ petitions involve a challenge to an advertisement dated 29.09.1999 at Annexure-2. 4. Shri Moharana, learned counsel appearing for the petitioners challenging the advertisement at Annexure -2 and further taking this Court to the pleadings in the writ petitions submitted that even though By-law of the establishment prescribes selection for Assistant Professor (Prostetics) through a selection process, but feeling necessity the Establishment involved herein brought amendment to the Bye-laws by prescription of a Rule appearing at page-54 of the brief in O.J.C. No.8476 of 2000 and taking this Court to the copy of the Recruitment Rules being filed by Shri Padhi, learned Central Government counsel, particularly to clause-11 therein, submitted that the Rule clearly indicates the mode of selection for the post of Assistant Professor will be by promotion, failing which by direct recruitment. Taking to the other documents and submissions in the counter averments as well as the response to the petitioners' rejoinder filed by the Establishment and further taking this Court to the document at Annexure-C therein, Shri Moharana, learned counsel appearing for the petitioners submitted that the correction in the Rules appearing in column no.7 at page-86 of the brief in O.J.C. No.8476 of 2000 and looking to the document filed by the Establishment today in Court by way of a Memo is an outcome of the amendment of the Rules in the Minutes of 71st Executive Council meeting of SVNIRTAR held on 20.11.2007. It is under the circumstances, Shri Moharana, learned counsel appearing for the petitioners taking support from the document at Annexure-C contended that the amendment brought in the year 2007 in the 71st Executive Council meeting of SVNIRTAR held on 20.11.2007 being prospective, the sole criteria for promotion to the post of Assistant Professor (Prosthetics) remained by way of promotion following the Rules prevailing then at Annexure-A. It is under the circumstances, Shri Moharana, learned counsel appearing for the petitioners submitted that the advertisement at Annexure-2 being contrary to the Rules at the relevant point of time thus becomes bad and this Court should interfere with the same by setting aside the same and directing consideration of the particular post by the Establishment by way of promotion. 5. In his opposition, Shri P.K. Padhi, learned Central Government counsel appearing for the Union of India as well as for the Establishment referring to the objections made in the counter affidavit as well as the objection to the rejoinder affidavit and taking this Court to the variety of documents, firstly referring to the Bye-laws involving in the matter, submitted that the provision in the Bye-laws requires selection for this particular post by way of direct recruitment going through paper advertisement. At the same time, taking this Court to the pleadings involving Annexures-A and C of the brief in O.J.C. No.8476 of 2000, Shri Padhi, learned Central Government counsel contended that even assuming that there has been change in the Recruitment Rules under Annexure -A prescribing the mode of selection in this particular post by way of promotion, but for the amendment of the Rules subsequently appearing at Annexure-C in column no.11 at page-86 of the brief, Shri Padhi, learned Central Government counsel contended that for the amended provision requiring the selection to the particular post is by way of direct recruitment clearly borne at page-86 of the brief. Shri Padhi, learned Central Government counsel thus contended that under no circumstances, filling up the post could have been considered by way of promotion and the only mode remained for such selection through direct recruitment. It is under the circumstances, Shri Padhi, learned Central Government counsel submitted that there is no infirmity in the advertisement impugned herein in prescribing the mode of recruitment by way of selection. It is under the circumstances, Shri Padhi, learned Central Government counsel submitted that there is no infirmity in the advertisement impugned herein in prescribing the mode of recruitment by way of selection. Shri Padhi, learned Central Government counsel further taking this Court to the qualification criteria required for the post referring to the documents available on record, submitted that even otherwise also, the petitioners do not have the required qualification. It is under the circumstances, Shri Padhi, learned Central Government counsel prays this Court for dismissal of both the writ petitions. 6. Shri P.K. Ray, learned counsel appearing for opposite party no.5, a candidate selected pursuant to the advertisement at Annexure-2 is continuing in the post with the interim direction of this Court. Taking support of the submissions made by Shri Padhi, learned Central Government counsel for the departments and further taking this Court to the provisions contained in the Bye-laws binding on both parties, submitted that for the clear provision in the Bye-laws, there is no illegality in entering into the selection for the post by way of selection and further taking a cue from the submission of Shri Padhi, learned Central Government counsel that opposite party no.5 is more meritorious than petitioners, Shri Ray, learned counsel appearing for opposite party no.5 further submitted that even otherwise opposite party no.5 being a more meritorious candidate, selection of opposite party no.5 may not be interfered, more particularly keeping in view the length of service he has already rendered in the meantime. 7. Considering the rival contentions of the parties, this Court finds, the advertisement at Annexure-2 speaks the mode of recruitment for the post of Assistant Professor (Prosthetics) being by way of selection upon receiving the applications from open market through paper advertisement. This Court from the perusal of Annexure-7, the Bye-laws governing both the Establishment as well as the employees concerned, also finds, Bye-law containing the condition for recruitment of Assistant Professor is by way of selection and entering into advertisement. This Court from the perusal of Annexure-7, the Bye-laws governing both the Establishment as well as the employees concerned, also finds, Bye-law containing the condition for recruitment of Assistant Professor is by way of selection and entering into advertisement. But, at this stage, taking into the pleadings of the Establishment as well as the Union of India through their counter affidavits filed for all contesting opposite parties, this Court from the pleadings as well as the documents at Annexure - A, finds Annexure-A is a copy of the Recruitment Rules in respect of Engineer (Prosthetics) post involved therein, also appears, the Assistant Professor in Prosthetics as appearing at column no.2 at page-54 of the brief in OJC No.8476 of 2000. Column no.11 at page-55 of the brief brings out a clear indication that the mode of selection for the post involved therein is by promotion, failing which by direct recruitment. 8. Now coming to the document even filed by the opposite parties, i.e., the Union of India as well as the Establishment involved herein, particularly at Annexure-C, this Court finds, in the meantime based on further considerations the Establishment has gone for change in the Recruitment Rules in respect of the Assistant Professor (Prosthetics) along with other posts as mentioned at page-85 of the brief in OJC No.8476 of 2000. Bringing a change in the mode of selection for the post involved herein by introducing the mode of direct recruitment as appearing at column no.11 at page-86 of the brief. It is at this stage, this Court also takes into consideration a document filed by Shri Padhi, learned Central Government counsel appearing for the Union of India as well as for the Establishment involved herein, the Establishment while again filing the copy of the document available at Annexure-C has filed a further document disclosing to be a Minutes of 71st Executive Council Meeting of SVNIRTAR held on 20.11.2007. Item No.71.14 of the Minutes indicated hereinabove reads as follows :- "Item No.71.14 - Any other point: 1. Change of Recruitment rules for the post of Asst. Prof./Lecturer in Physiotherapy and Occupational Therapy and Prosthetics and Orthotics: After considering the proposal, the Executive Council advised to follow the recruitment pattern of Pt.DDUIPH, New Delhi for the posts of Asst. Item No.71.14 of the Minutes indicated hereinabove reads as follows :- "Item No.71.14 - Any other point: 1. Change of Recruitment rules for the post of Asst. Prof./Lecturer in Physiotherapy and Occupational Therapy and Prosthetics and Orthotics: After considering the proposal, the Executive Council advised to follow the recruitment pattern of Pt.DDUIPH, New Delhi for the posts of Asst. Professor, Lecturer in Physiotherapy, Lecturer in Occupational Therapy and Prosthetics & Orthotics at SVNIRTAR." Reading the aforesaid, it appears, the amended Rules under Annexure-C has been approved in the meeting dated 20.11.2007 that meeting. Therefore, this Court finds, there is no dispute that the amended Rules under Annexure-C was brought on 20.11.2007 and circulated on 17.12.2007. It is at this stage, this Court observes, the amended Rules under Annexure-C having come into play on 20.11.2007 has no retrospectivity and, as such, has no application to the post decided to be filled up in 1999 involving the advertisement. This Court here also takes into account the contradictory submission of Shri Padhi, learned Central Government counsel appearing for the Union of India as well as for the Establishment though of burse-based on the counter objection of the opposite parties, on the one hand Shri Padhi, learned Central Government counsel and also representing the establishment involved herein while making his submission on the basis of the provisions in the Bye-laws, at the same time argument has been advanced on their behalf taking reliance of the amended Rules involving Annexure-C, this Court finds surprise in the stand of the opposite parties and finds, these contesting opposite parties are blowing hot and cold together. However, considering the submission made, this Court finds, in the event any Bye-laws is operating and binding on the parties involved herein, there was no occasion of bringing any Recruitment Rules de-horse the conditions in the Bye-laws and in the event, the Establishment was really interested to bring any amendment in the Recruitment Procedure, nothing prevented the Establishment to amend the Bye-laws. 9. For the observations made herein above and for the bringing in the Recruitment Rules vide Annexure-A clearly establishing the mode of selection for the post of Assistant Professor (Prosthetics) operating in the year 1999 by way of promotion, failing which by direct recruitment, this Court finds, the mode of selection involving the advertisement at Annexure-2 for the post undertaking a process of selection becomes bad. In the circumstances, this Court declares the condition involving mode of selection for the post of Assistant Professor involving advertisement under Annexure-2 as bad, this Court further declares all consequential actions following the process of selection pursuant to the advertisement also becomes bad. For the setting aside of the mode of selection involving advertisement in Annexure-1, it will be open for the Establishment to go for filling up the post of Assistant Professor (Prosthetics) afresh, but however considering that the vacancy relates back to 1999, the selection shall be conducted following the Rules prevailing then vide Annexure-A. So far petitioner's possessing no required qualification etc. as alleged by the contesting opposite parties, this Court leaves it open to the Establishment to consider this aspect at the time of fresh selection involving the post vide Annexure-2. Entire exercise be completed within a period of three months from the date of communication of this judgment. 10. Both the writ petitions succeed to the extent indicated hereinabove, but with the aforesaid observation and direction. No costs. Final Result : Allowed