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2018 DIGILAW 784 (ORI)

ANJAN KUMAR NANDA v. STATE OF ODISHA

2018-09-04

S.N.PRASAD

body2018
JUDGMENT : S. N. Prasad, J. - The instant appeal has been filed under Section-24-C of the Odisha Education Act, 1969 wherein the judgment dated 23.03.2013 passed by the Presiding Officer, State Education Tribunal, Odisha, Bhubaneswar in G.I.A. Case No.278 of 2011 has been assailed whereby and whereunder the decision of the Director, Higher Education, Odisha, Bhubaneswar dated 09.06.2011 holding the appointment of the appellant against the 2nd post of Lecturer in Sanskrit vide Resolution No.74 dated 06.03.2009 has been held to be valid, has been negated. 2. The brief fact of the case of the appellant, who has opposite party no.5 before the Tribunal, namely, Anjan Kumar Nanda, is that he has been appointed in pursuant to an advertisement published on 18.7.1993 in Gopabandhu Science College, Athagarh in the district of Cuttack to the post of Lecturer in Sanskrit. He has been selected and engaged after taking into consideration his eligibility and continues since then. The appellant has approached to this Court by fling a writ petition being W.P.(C) No.12700 of 2005 with a prayer to approve his appointment against 2nd post of Lecturer in Sanskrit and to extend all other consequential service benefits as admissible under the Orissa Education Act and Rules framed thereunder. The aforesaid writ petition was disposed of vide order dated 27.02.2006 with a direction to the petitioner (appellant herein) to file fresh representation before the Director, Higher Education, Odisha, Bhubaneswar, who in turn, was directed to take decision on the aforesaid representation within period of four months thereafter. But the Director, Higher Education, vide its order dated 14.05.2007, has rejected the claim of the appellant on the ground that the Governing Body has never proposed to create 2nd post of Lecturer in Sanskrit before filling up the said post. During the relevant time, the State Government has formulated a new Grant-in-Aid Order in the name of Orissa (Non-Government Aided Colleges, Aided Junior Colleges and Aided Higher Secondary Schools) Grant-in-Aid Order, 2009 (in short "Grant-in-Aid Order, 2009") and in pursuant thereto, the Principle of the appellant's college was directed to submit necessary proposal in favour of all eligible persons for approval of their appointment under the Grant-in-Aid Order, 2009. The Sub-Collector-cum-President of the Governing Body vide letter dated 20.01.2009 has issued a letter to the Director, Higher Education regarding submitting necessary documents in favour of the appellant and further requested the Director, Higher Education to held up the verification of service particulars of the respondent No.5 and thereafter, the Governing Body vide its Resolution No.74 dated 06.03.2009 unanimously resolved that the earlier Resolution No.71 dated 24.09.2008 is cancelled and further resolved that the appointment of the appellant as Lecturer in Sanskrit 2nd post from the date of his joining i.e. from 02.09.2003 has been approved while the appointment of the respondent no.5 has been approved as Lecturer in Sanskrit against the 3rd post and in view of such resolution passed by the Governing Body, a proposal was submitted before the Director, Higher Education in favour of the appellant for approval of his appointment as against 2nd post of Lecturer in Sanskrit under the provision of Grant-in-Aid, 2009. After such proposal was submitted in favour of the appellant, the State Government has issued letter to the Director, Higher Education seeking certain clarification with regard to the allegations made by the respondent no.5 as against the appellant for which the Director, Higher Education issued a letter dated 09.06.2011 to the State Government clarifying that in view of the merit list of interview and factual report of the President of the Governing Body dated 20.01.1999 and subsequent detailed report submitted by the Principal of the College on 23.12.2010, the appointment of the appellant has been confirmed as against the 2nd post of Lecturer in Sanskrit where the appointment of the respondent no.5 has been confirmed as against the 3rd post of Lecturer in Sanskrit stands valid. Against the aforesaid order, the respondent no.5 has approached to the Tribunal assailing the same which has been answered in favour of the respondent no.5 which is under challenge in this appeal by the appellant. The Tribunal has answered against the appellant basing upon the reason that he was having Acharya Degree in Sanskrit which is equivalent to the post of M.A. and in the advertisement, there is no stipulation that any equivalent degree of the M.A. will be treated to be the proper eligibility condition of a candidate. 3. Mr. The Tribunal has answered against the appellant basing upon the reason that he was having Acharya Degree in Sanskrit which is equivalent to the post of M.A. and in the advertisement, there is no stipulation that any equivalent degree of the M.A. will be treated to be the proper eligibility condition of a candidate. 3. Mr. Budhadeb Routray, learned Senior Counsel appearing for the appellant submits that the State Government has already recognized the Acharya Degree awarded by the Rashtriya Sanskrit Sansthan, New Delhi equivalent to M.A. Degree in Sanskrit for the purpose of employment under the State Government and as such, this aspect of the matter ought to have been taken into consideration by the Tribunal but not taken into consideration. The finding given by the Tribunal, so far as it relates to awarding marks in the interview has not been taken into consideration and the question of seniority cannot be raised after long lapse of time. Mr. Routray has made oral submission raising the point of jurisdiction that the Sub-Collector was appointed as an administrator due to expiry of tenure of Governing Body, who has taken decision by approving the service of respondent no.5 as against 2nd post and as such, the same was without jurisdiction. To strengthen his argument, he has taken aid of the provision of the Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991 wherein as per the provision made under the provision of Rule-22, the decision is to be taken by the Governing Body and Governing Body consist of several members headed by the President. He submits that in view of the provision contained under the provision of sub-section (6) of Section-7 of Orissa Education Act, 1969, provision has been made conferring power upon the Prescribed Authority to allow the Governing Body or the Managing Committee whose term has expired under sub-section (4) or subsection (2) of Section 7-A to continue in office till the Governing Body or the Managing Committee is reconstituted or appoint any person or persons to exercise the powers and discharge the functions of the Governing Body or the Managing Committee during the intervening period. Hence, he submits that the Managing Committee or the Governing Body cannot exercise power after expiry of tenure and Sub-Collector has been conferred with the power to act as Governing Body, the decision taken by the Governing Body vide Resolution dated 24.09.2008 has been reversed vide Resolution dated 06.03.2009, as such, there is no illegality. According to him, the power and functions of the Governing Body has been provided under the provision of Rule-29 of the Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991. 4. Per contra, Mr. P.C. Panda, learned Additional Government Advocate appearing for the State-respondents no.1, 2 & 4 and Mr. S.K. Swain, learned counsel representing the respondent No.5 submit that the Tribunal has not erred in passing the order rather the Tribunal after taking into consideration the fact that the advertisement has been published only to fill up one post of Lecturer in Sanskrit, as would be evident from Annexure-1 annexed to the memo of appeal. In pursuant thereto, the respondent no.5 as also the appellant and others had participated in the selection process. The required qualification as stipulated in the aforesaid advertisement is that the candidates securing 55% of marks in M.A./M.S. Examination and within the age of 28 years have been allowed to appear in the interview and admittedly, the appellant has not got 55% marks in M.A. Degree rather he, on the strength of the Acharya Certificate, which according to the appellant, is equivalent to the M.A. Degree Examination, has been considered and engaged. Hence, he cannot prevail over and above the respondent no.5 and thereby his selection and appointment against the 2nd post of Lecturer in Sanskrit cannot be said to be illegal in terms of the advertisement. It has been submitted that this is not the case for determination of the inter se seniority rather the dispute all along is regarding the approval of the service of the appellant vis-?-vis respondent no.5 as against the 2nd post of Lecturer in Sanskrit and admittedly, since the respondent no.5 is holding the requisite qualification as per the advertisement and as such, she will be said to be the proper selectee and engagee to the aforesaid post. It has been submitted that this issue has been raised by the appellant way back in the year 2005 by filing a writ petition being W.P.(C) No.12700 of 2005 which has been disposed of by this Court vide order dated 27.02.2006 directing the Director, Higher Education, Orissa, Bhubaneswar to consider the claim of the appellant, if he files representation. In pursuant thereto, a representation was filed by him making therein in the prayer (i) to confirm his appointment as Lecturer in Sanskrit against the 2nd post; and (ii) approving his appointment accordingly enabling all admissible benefits under Orissa Education Act, 1969. The Director vide order dated 14.05.2007 has rejected the claim of the appellant on the ground that the Governing Body of the college in question although issued an advertisement for filling of one post of Lecturer in Sanskrit but appointed two persons, namely, the appellant and the respondent no.5 on the same date i.e. on 27.8.1993, however, without mentioning their position of appointment against which post whether 2nd post or the 3rd post. It has been submitted that the aforesaid order dated 14.05.2007 has never been challenged by the appellant. In the meanwhile, it has been submitted that the appellant has managed to got a decision in his favour in supersession to the decision taken under the Resolution No.71 dated 24.09.2008 whereby and whereunder he has been placed against the 3rd post of Lecturer in Sanskrit from the date of his joining i.e. 2.9.1993. Vide Resolution No.74 dated 06.03.2009 against which respondent no.5 has made a complaint on the ground that the appellant since been not possessing the requisite qualification as stipulated in the advertisement, hence his appointment is void ab initio but the Director, without taking into consideration the legal position of not fulfilling the educational qualification as provided under the advertisement and taking note of its equivalence, has given a declaration regarding validity of the decision taken by the Governing Body under Resolution No.74 dated 06.03.2009, against which, the respondent no.5 has filed an application under the provision of Section-24-B of the Orissa Education Act, 1969 wherein the Tribunal, after taking into consideration the legal position of possessing prescribed qualification as per the advertisement which the appellant was not possessing since he was possessing the equivalent qualification as that of the M.A. i.e. having Acharya Degree, has given a finding that his appointment is not proper. In view thereof, it has been submitted that the Tribunal has not committed any illegality rather the Tribunal, after taking into consideration the legal settled position of law, has passed the order. Mr. Swain, learned counsel appearing for the respondent no.5 has submitted that the question of jurisdiction, as has been raised by Mr. Routray, learned Senior Counsel appearing for the appellant, has never been taken at any time either before the administrative authority or before the Tribunal or even in the instant memo of appeal. Hence, this point is not worst to be considered. He has further submitted that this is an appeal filed by the appellant under the provision of Section-24-C of the Orissa Education Act, 1969 and the jurisdiction of the appellate court is only to see the legality and propriety or perversity or the finding given by the Tribunal in the court and if any point has not been raised on that basis, the finding given by the Tribunal cannot be said either perverse or incorrect finding. 5. Heard the learned counsel for the parties and gone into the relevant documents available on record and after appreciation of their rival submissions, this Court has found that one advertisement was published for fulfilling one post of Lecturer in Sanskrit requiring applications from the candidates who have securing 55% in M.A./M.S. Examination. The content of the advertisement is being referred herein below:- "ADVERTISEMENT GOPABANDHU SCIENCE COLLEGE ATHAGARH Candidates securing 55% of marks at M.A./M.S. Examination and within the age of 28 years are hereby informed to appear interview on 25.07.93 at 11 A.M. in the office of the undersigned along with a college cash receipt of Rs. 35/- Bio-data, original and attested copies of all certificate for one post of lecturer each in English, Oriya, History, Sanskrit, Logic & Philosophy, Physics, Botany, Zoology, Education and one leave vacancy each in Oriya, Economics, Botany, Physics & Chemistry. Sd/- B.K. Tripathy, Principal cum Secreary G.Sc. College, Athagarh." The appellant as well as respondent no.5 along with others had participated in the selection process. Admittedly, the appellant was having no P.G. Degree in M.A. having 55% marks. The respondent no.5 was having 55% marks in the M.A. in Sanskrit Examination. Sd/- B.K. Tripathy, Principal cum Secreary G.Sc. College, Athagarh." The appellant as well as respondent no.5 along with others had participated in the selection process. Admittedly, the appellant was having no P.G. Degree in M.A. having 55% marks. The respondent no.5 was having 55% marks in the M.A. in Sanskrit Examination. The Selection Committee has accepted the candidature of the appellant and selected him along with respondent no.5, as would be evident from Annexure-2, in which, the name of the appellant has been placed at Serial No.1 while the name of respondent no.5 is placed at Serial No.4. The dispute arose with respect to 2nd and 3rd post in the Department of Sanskrit. The appellant as well as respondent no.5 has claimed to be appointed against the 2nd post of Lecturer in Sanskrit. During the relevant time, the Governing Body of the college in question was not functioning and in its place the Sub-Collector, Athagarh has assumed the charge of President by virtue of the power conferred under provision of Section-7(6) of the Orissa Education Act, 1969. When the complaint has been made by the respondent no.5 before the Sub-Collector, Athagarh in the capacity of the President of the Governing Body of the college, he has felt non-cooperation by the Principal of the said college and as such, he has reported the matter before the Director, Higher Education to held him for verification of service particulars of the appellant. The Governing Body has taken a resolution being Resolution No.71 dated 24.09.2008, by which, the selection and engagement of the respondent no.5 has been approved but the same has been superseded by another resolution being Resolution No.74 dated 06.03.2009 approving the appointment of respondent no.5 against 3rd post of Lecturer in Sanskrit from the date of her joining. The respondent no.5 has raised a dispute questioning the legality and propriety of the Resolution No.74 dated 06.03.2009 on the ground of lack of educational qualification having been possessed by the appellant thereby questioning his appointment but the Director has given a declaration regarding the validity of the decision taken vide Resolution No.74 dated 06.03.2009. The respondent no.5 has raised a dispute questioning the legality and propriety of the Resolution No.74 dated 06.03.2009 on the ground of lack of educational qualification having been possessed by the appellant thereby questioning his appointment but the Director has given a declaration regarding the validity of the decision taken vide Resolution No.74 dated 06.03.2009. Prior to that, the appellant has approached to this Court by filing a writ petition being W.P.(C) No.12700 of 2005 for giving a declaration regarding approval of his service against the 2nd post, this Court has given liberty to the petitioner to file representation before the Director for its onward consideration at his end and in view thereof, the Director has passed an order on 14.05.2007 mentioning therein that against one post, two persons have been appointed on the same day without mentioning their position and hence the claim of the appellant has been rejected for its approval upon the said post. Admittedly, the decision taken by the Director has not been challenged by the appellant at any time earlier, by which, the approval against the 2nd post of Lecturer in Sanskrit being rejected. The respondent no.5 has raised a dispute before the Tribunal as against the decision taken on 9.6.2011 inter alia on the ground that the appellant has been appointed without possessing valid requisite qualification having 55% marks in the M.A. in Sanskrit rather on the basis of the equivalent certificate of Acharya which has been directed to be treated as equivalent by the State authority, his candidature has been accepted and he has been engaged, but if the advertisement has been published without mentioning for acceptance of any requisite qualification of the equivalent certificate, the candidature of the appellant ought to have been rejected at the threshold but it has not been done and against the single post, two candidates have been appointed. Her, further case before the Tribunal, was that the appellant for approval of his appointment against the 2nd post, has approached to this Court by filing a writ petition being W.P.(C) No.12700 of 2005. Her, further case before the Tribunal, was that the appellant for approval of his appointment against the 2nd post, has approached to this Court by filing a writ petition being W.P.(C) No.12700 of 2005. In pursuant thereto, the Director has passed an order rejecting the prayer of the appellant for approval of his service against the 2nd post of Lecturer in Sanskrit on the ground that on the same day, two persons have been appointed without earmarking under which post either against 2nd or 3rd post, the appointment has been made. However, the same has never been challenged by him but by getting favour from the management, the decision which has been taken vide Resolution No.71 dated 24.09.2008, it has been superseded by another Resolution taken on 06.03.2009 vide Resolution No.74 holding the selection of the appellant as valid as against the 2nd post of Lecturer in Sanskrit. The contention raised by the appellant that the Tribunal would have taken note of the fact that the Governing Body, while taking the decision vide Resolution No.71 dated 24.09.2008, is having no jurisdiction after lapse of the period of 10 years and that is the reason the Sub-Collector under the authority of law, has cancelled the same and taken new decision vide Resolution No.74 dated 06.03.2009 and further taken the ground that as per the decision of the competent authority dated 31.03.1984, Acharya Examination conducted by the Rastriya Sanskrit Sansthan, New Delhi has been treated to be equivalent to M.A. Degree Examination in Sanskrit of the Utkal University. Hence, it cannot be said that the appellant has no academic qualification as stipulated under the advertisement. This Court, before going through the legality and propriety of the finding given by the Tribunal, thinks it proper to discuss about the legal position regarding eligibility condition. It is settled position of law that the stipulation made in the advertisement is to be adhered to and there cannot be any deviation. If the advertisement contains any eligibility condition, the candidature is to be tested on the basis of the same. If in the advertisement, there is no stipulation to treat the equivalent certificate as the eligibility condition, the authority cannot take it into consideration. If the advertisement contains any eligibility condition, the candidature is to be tested on the basis of the same. If in the advertisement, there is no stipulation to treat the equivalent certificate as the eligibility condition, the authority cannot take it into consideration. This Court, after going through the content of the advertisement, has found that the candidates have been required to possess 55% marks in M.A./M.S. Examination and there is no stipulation with respect to giving relaxation regarding the equivalent degree possessed by any of the candidate and on this ground, the legal position is to be taken into consideration as to whether in absence of any equivalent certificate to be treated at par with the requisite eligibility qualification can candidature of a candidate be accepted? It is not in dispute that the suitability and eligibility of a candidate has to be established, in this regard, reference may be made to the judgment rendered by Hon'ble the Supreme Court in the case of R. Prabha Devi and others v. Government of India and others, (1988) AIR SC 902 wherein at paragraph-15 their Lordships have been pleased to hold as follows:- "xxx xxx xxx xxx xxx xxx xxx when qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfills the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed xxx xxx xxx xxx xxx xxx xxx" In the case of P. M. Latha and Another v. State of Kerala and Others, (2003) 3 SCC 541 wherein their Lordships have held at paragraphs-10 and 13 which are being quoted herein below:- "10. xxx xxx xxx xxx xxx xxx BEd qualification is a higher qualification than TTC and therefore, the Bed candidates should be held to be eligible to compete for the post. On behalf of the appellants, it is pointed out before us that Trained Teacher's Certificate is given to teachers specially trained to teach small children in primary classes whereas for BEd degree, the training imparted is to teach students of classes above primary. BEd degree-holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. BEd degree-holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Whether for a particular post, the source for recruitment should be from the candidates with TTC qualification or BEd qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for the post of primary teachers as only TTC and not BEd. Whether BEd qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider BEd candidates, for the present vacancies advertised, as eligible." "13. Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law. The Division Bench forgot that in extending relief on equity to BEd candidates who were unqualified and yet allowed to compete and seek appointments contrary to the terms of the advertisement, it is not redressing the injustice caused to the appellants who were TTC candidates and would have secured a better position in the rank list to get appointment against the available vacancies, had BEd candidates been excluded from the selections. The impugned judgment of the Division Bench is both illegal, inequitable and patently unjust. The TTC candidates before us as appellants have been wrongly deprived of due chance of selection and appointment. The impugned judgment of the Division Bench, therefore, deserves to be set aside and of the learned single judge restored." In the case of Bihar Public Service Commission and Others v. Kamini and Others, (2007) 5 SCC 519 wherein their Lordships have held at paragraph-8 which is being quoted herein below:- "8. Again, it is well settled that in the field of education, a court of law cannot act as an expert. Normally, therefore, whether or not a student/candidate possesses requisite qualifications should better be left to educational institutions [vide University of Mysore v. C.D. Govinda Rao. This is particularly so when it is supported by an Expert Committee. The Expert Committee considered the matter and observed that a person can be said to be Honours in the subject if at the graduate level, he/she studies such subject as the principal subject having eight papers and not a subsidiary, optional or side subject having two papers. Such a decision, in our judgment, cannot be termed arbitrary or otherwise objectionable. The Expert Committee considered the matter and observed that a person can be said to be Honours in the subject if at the graduate level, he/she studies such subject as the principal subject having eight papers and not a subsidiary, optional or side subject having two papers. Such a decision, in our judgment, cannot be termed arbitrary or otherwise objectionable. The learned Single Judge, in our opinion, was, therefore, right in dismissing the petition relying upon the report of the Committee and in upholding the objection of the Commission. The Division Bench was in error in ignoring the well-considered report of the Expert Committee and in setting aside the decision of the learned Single Judge. The Division Bench, while allowing the appeal, observed that the 'litmus test' was the admission granted to the first respondent by the Central Institute of Fisheries Education, Mumbai. According to the Division Bench, if the first respondent did not possess Bachelor of Science degree with Zoology, the Institute would not have admitted her to the said course. The Division Bench observed that not only the first respondent was admitted to the said course, she had passed it with "flying colours". In our opinion, the Division Bench was not right in applying 'litmus test' of admission of the first respondent by the Central Institute of Fisheries Education, Mumbai. The controversy before the Court was whether the first respondent was eligible for the post of District Fisheries Officer, Class II. The correct test, therefore, was not admission by the Mumbai Institution. If the requirement was of Honours in BSc with Zoology and if the first respondent had cleared BSc Honours with Chemistry, it could not be said that she was eligible to the post having requisite educational qualifications. By not treating her eligible, therefore, the Commission had not committed any illegality." It is evident from the aforesaid judgments that the requirement, as has been provided in the advertisement, is strictly to be followed and there cannot be any deviation from the same. So far as the power of relaxation as to whether it is to be given by the selection committee or the selection body or not? So far as the power of relaxation as to whether it is to be given by the selection committee or the selection body or not? It is the legal settled position that the relaxation can only be given if there is any power to relax, which is the essential qualification, reference in this regard may be made to the judgment rendered by Hon'ble the Supreme Court in the case of P.K. Ramachandra Iyer and others v. Union of India and Others, (1984) AIR SC 541 wherein their Lordships have held at paragraph-31 which is being quoted herein below:- "xxx xxx xxx xxx xxx xxx xxx Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification pertaining to experience, the entire process of selection of the 6th respondent was in contravention of the established norms prescribed by advertisement and power of the Selection Committee and procedure of fair and just selection and equality in the matter of public employment and to rectify resultant injustice and establish constitutional value this Court must interfere. Selection of respondent No.6 is contrary to rules and orders and in violation of prescribed norms of qualification. He was ineligible for the post when selected. His selection and appointment would be required to be quashed and set aside." In the case of Secretary, A.P. Public Service Commission v. B. Swapna and Others, (2005) 4 SCC 154 wherein their Lordships have held at paragraphs-15 and 18 which are being quoted herein below:- "15. xxx xxx xxx xxx xxx xxx Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K. Ramachandra Iyer v. Union of India this Court held that once it is established that there is no power to relax essential qualification, the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised." "18. In Dr. Krushna Chandra Sahu (Dr.) v. State of Orissa it was held as under: (SCC p. 13, paras 34-36) "34. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In Dr. Krushna Chandra Sahu (Dr.) v. State of Orissa it was held as under: (SCC p. 13, paras 34-36) "34. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In P.K. Ramachandra Iyer v. Union of India it was observed: (SCC pp.180-81, para 44) "By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm." 35. Similarly, in Umesh Chandra Shukla v. Union of India it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Durgacharan Misra v. State of Orissa and the limitations of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce. 36. It may be pointed out that rule-making function under Article 309 is legislative and not executive as was laid down by this Court in B.S. Yadav v. State of Haryana. For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection." The Commission has been given right to freeze any ranking list. The selection from the ranking list from amongst the posts advertised was limited to the cases where the selected candidates had relinquished the selection or who had not joined the duties within the given time and also new requisitions sent by the appointing authority. The Commission did not think it appropriate to make appointment from the new requisitions. The fact that the Commission had directed that fresh advertisements were to be made is clearly indicative of the fact that the Commission did not want the new requisitions to be filled up by appointing from the ranking list in force. The Commission did not think it appropriate to make appointment from the new requisitions. The fact that the Commission had directed that fresh advertisements were to be made is clearly indicative of the fact that the Commission did not want the new requisitions to be filled up by appointing from the ranking list in force. The Tribunal and the High Court were therefore not justified in holding by referring to the amended rule that the fallout vacancies were to be filled up from the ranking list. The fallout vacancies in terms of the amended notification were to be notified in the next recruitment. Case of the applicant all through has been that her claim was relatable to the 14 vacancies indented on 14.4.1997 and in particular the open category. It is not her case that Commission had directed fresh advertisement though it had not frozen the rank list. It is not disputed that there cannot be direction for fresh advertisement unless the rank list is frozen. The materials placed on record clearly show that before directing fresh advertisement, the Commission had in fact for reasons recorded directed freezing. Unfortunately, the Tribunal did not grant adequate time to the Commission to produce relevant records and the High Court proceeded on erroneous premises that the amended Rules applied. Therefore, looked at from any angle, the High Court's judgment affirming Tribunal's judgment cannot be maintained. The same is set aside. The appeal is allowed with no order as to costs." In view of the aforesaid provision of law, the factual aspect of the instant case has been appreciated by this Court. Undisputedly, the appellant is having no qualification of M.A. rather he is claiming his selection against the 2nd post by virtue of having Acharya pass examination, which has been given recognition by the order of the Deputy Registrar of the Utkal University. Question is that when there is only one post as per the advertisement and several candidates are there, the scrutiny of the candidature is to be made strictly on the basis of the terms and conditions of the advertisement. Question is that when there is only one post as per the advertisement and several candidates are there, the scrutiny of the candidature is to be made strictly on the basis of the terms and conditions of the advertisement. Here in the instant case, when the respondent no.5 as also the appellant and others were the candidates and admittedly respondent no.5 having requisite qualification as per the advertisement, there was no question of taking any adverse decision against her by not approving her service against 2nd post rather the selection committee has committed illegality in accepting appellant's application in absence of requisite qualification as provided in the advertisement and even if it has accepted, the Sub-Collector by reversing the earlier Resolution dated 24.09.2008 by virtue of the Resolution dated 06.03.2009 has committed illegality in approving the service of the appellant against the 2nd post of Lecturer in Sanskrit. Further, the Sub-Collector, while cancelling the decision taken vide Resolution dated 24.09.2008 by virtue of Resolution dated 06.03.2009, has given go by to the Office Order No.21935 dated 14.05.2007 which has been passed by the Director, Higher Education, Orissa, Bhubaneswar in pursuant to the order passed by this Court in W.P.(C) No.12700 of 2005 whereby and whereunder the approval of the appellant has not been accorded and the aforesaid order has never been challenged by him rather thereafter he has got the decision by the Managing Committee headed by Sub-Collector in the capacity of the President of the Governing Body who has taken decision by virtue of Resolution dated 06.03.2009 by cancelling the Resolution dated 24.09.2008 approving the service of the appellant against the 2nd post and the service of the respondent no.5 against the 3rd post. Here question is that the Director, Higher Education, Orissa, Bhubaneswar in the capacity of the Prescribed Authority and in pursuant to the order passed by this Court in W.P.(C) No.12700 of 2005, has rejected the claim of the appellant by not approving his service against the 2nd post on what ground and on what basis the Sub-Collector has changed the aforesaid decision. At this juncture, the submission of Mr. At this juncture, the submission of Mr. Routray, learned Senior Counsel appearing for the appellant is to be taken into consideration, who has submitted that when the Resolution dated 24.09.2008 was passed, the Governing Body was having no jurisdiction and as such, the Sub-Collector, in pursuant to the power conferred to it under the provision under Section-7(6) of the Orissa Education Act, 1969, has cancelled the aforesaid decision taken in the said Resolution by superseding it by virtue of the Resolution dated 06.03.2009 (Annexure-5), but according to the considered view of this Court, the Governing Body might have got no jurisdiction but the decision of the Director dated 14.05.2007 was there wherein the entire facts were stated by the Director and furthermore, the Sub-Collector, while reversing the decision taken by the Governing Body, said to have got no jurisdiction taken on 24.9.2008 ought to have taken into consideration the legal position of law that possessing the requisite qualification is mandatory and also to consider that how two persons have been appointed against a single post advertised that too the selection committee has not scrutinized the documents in terms of the advertisement that goes to show that the selection committee has shown favour to the appellant. This Court also wants to deal with the contention of the learned Senior Counsel appearing for the appellant that the Acharya Examination conducted by Rastriya Sanskrit Sansthan, New Delhi has been directed to be treated equivalent to the M.A. Degree Examination and to support his contention, he has annexed document dated 30.03.1984 issued by the Deputy Registrar of the Utkal University. This Court is not making any comment upon the aforesaid fact, but the fact remains that when there is no stipulation in the advertisement to treat any equivalent certificate to that of the M.A. Degree in Sanskrit treating it for the purpose of accepting the candidature of a candidate but certainly will be said to be deviation from the terms and conditions of the advertisement which is not as per the settled position of law as discussed hereinabove. It is further evident that the Tribunal has taken note of the fact that the advertisement contains only interview to face the suitability of the candidate, but the Governing Body has taken decision to ask the candidate to go for teaching test which has been said by the Tribunal beyond the scope of the advertisement and by doing so, the opposite party no.5, the appellant herein, has been awarded 50 out of 50 marks in the teaching test to him which has been said to be illegality. This Court is also of the firm view that the selection process, if once started, cannot be changed on the settle principle of law that once the game starts, the rule cannot be changed. Here in the instant case, the advertisement only contains to test suitability of a candidate by asking one or other candidates to participate in the interview, but the teaching test has also been conducted by the selection committee. Hence, the same is beyond the scope of the advertisement and in the teaching test awarding 50 out of 50 marks to the appellant herein is also found to be untrustworthy. In view thereof, the view taken by the Tribunal regarding the illegality committed by the selection committee in selecting the appellant cannot be said to be any infirmity. Hence, I am in agreement with such finding of the Tribunal. For other reason also that if the equivalent certificate was being treated to be equivalent and considered for accepting the candidature, the same should have been reflected in the advertisement so that the other candidates having Acharya Examination Certificate might have got an opportunity to participate in the selection process. Be that as it may, the selection body ought to have gone into the terms and conditions of the advertisement and in absence of any stipulation made therein and if any deviation, the selection made of a person will be said to be improper. The Tribunal, after taking into consideration all these aspects of the matter, has passed the order which has got no infirmity. 6. In view thereof, this Court finds no perversity in the finding rather the finding is based upon the legal position. Hence, this Court declines to interfere with the same. Accordingly, the F.A.O. is dismissed. Final Result : Dismissed