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2023 DIGILAW 1336 (PAT)

Surjit Kumar v. State of Bihar

2023-12-06

K.VINOD CHANDRAN, RAJIV ROY

body2023
Y. V. Rangaiah vs. J. Sreenivasa. AIR 1983 SC 852 —Overruled by State of Himachal Pradesh vs. Raj Kumar, (2023) 3 SCC 773 . K. Vinod Chandran, CJ.—The controversy in the writ petitions, from which the above appeals arise, revolve around who is qualified to apply under the notification issued by the Government for selection and appointment of Lab Technicians: whether it is only those having Diploma in Lab Technician course, that too obtained from an Institution recognized by the Government of Bihar; or the persons who obtained such qualifications from anywhere in the country, even those who obtained their Diplomas through distance education, could apply. The selection which was commenced by an advertisement dated 21.06.2015, took a difficult path, by reason of the litigation initiated by those persons continuing as contractual employees. As of now, there are appointments made by virtue of the interim orders passed in the appeals, which appointments are subject to the final decision. We are hence, compelled to take note of the interim orders in the writ petition also before we take up the adjudication in the appeal, which is filed by those diplomates, who obtained their diplomas from the Bihar State Government recognized Institutions. They are aggrieved with the direction of the learned Single Judge to revise the entire merit list and consider the case of the petitioners, who were continuing on contractual posts in the Government run hospitals, for selection and appointment, since they are eligible as per the Bihar Lab Technician Rules, 2005 as Bihar Lab Technician Cadre (Amendment) Rules, 2019 (for brevity ' the Rules of 2005' and 'the Rules of 2019' respectively). 2. The advertisement calling for applications was as per the Bihar Lab Technician Cadre Rules, 2014 (for brevity 'the Rules of 2014') which confines the zone of consideration to those diplomates, who obtained their diplomas from the Institutions recognized by the Government of Bihar. It has to be pertinently noticed that the eligibility for selection has expanded considerably by virtue of the interim orders in the appeal, much beyond the advertisement and even the terms of consideration in the writ petition. 3. It has to be pertinently noticed that the eligibility for selection has expanded considerably by virtue of the interim orders in the appeal, much beyond the advertisement and even the terms of consideration in the writ petition. 3. In the impugned judgment, at the outset, the learned Single Judge observed that an Intervention Application bearing I.A. No. 2 of 2020 filed in one of the writ petitions having C.W.J.C. No. 7175 of 2020, does not merit consideration as the Patna High Court Rules does not permit intervention in support of the writ petition. We fully agree with the observation of the learned Single Judge. But this did not preclude the said intervenors from filing fresh writ petitions, even after the disposal of the present writ petitions, which however, was not done. We say this specifically because we find a lot of Intervention Applications having been allowed in the appeal bringing in more persons into the fray; even those, who were not employed on contractual basis claiming their qualification to be sufficient to be considered for selection and appointment. We make it clear that none of those intervening applicants, other than those who were contractual employees could agitate their claims in the appeals which arise specifically from the disposal of the writ petition filed by such contract employees, who were removed from the zone of consideration by 'the Rules of 2014'. The prayer made by those who had, allegedly, equivalent qualifications, was not one coming within the scope of the writ petitions, all of which were filed by the contractual employees. The claim of the writ petitioners was also that by virtue of their employment in the posts of Lab Technicians in the various Institutions and Hospitals run by the Government, though as contract employees, they had a right to be considered for the vacant posts attempted to be filled up regularly. 4. The first of the writ petitions are C.W.J.C. No. 6761 of 2020, C.W.J.C. No. 7175 of 2020, C.W.J.C. No. 7406 of 2020, C.W.J.C. No. 7414 of 2020 and C.W.J.C. No. 9874 of 2020, which were considered together and a common judgment passed on 03.03.2021. From the first of these writ petitions arise L.P.A. No. 296 of 2021, L.P.A. No. 374 of 2021 and L.P.A. No. 399 of 2023. From the first of these writ petitions arise L.P.A. No. 296 of 2021, L.P.A. No. 374 of 2021 and L.P.A. No. 399 of 2023. The first and the third appeals mentioned above, were preferred by individuals and the second by the Bihar Staff Selection Commission (for brevity ‘the BSSC’). L.P.A. No. 345 of 2021, L.P.A. No. 372 of 2021 and L.P.A. No. 376 of 2021 arise from C.W.J.C. No. 7175 of 2020, the first and second appeals are filed by individuals and the third by ‘the BSSC’. L.P.A. No. 387 of 2021 is from C.W.J.C. No. 7406 of 2020, L.P.A. No. 414 of 2021 against the decision in C.W.J.C. No. 7414 of 2020 and L.P.A. No. 413 of 2021 against C.W.J.C. No. 9874 of 2020, all filed by ‘the BSSC’. The nine appeals, thus, arise from the common judgment dated 03.03.2021, following which C.W.J.C. No. 7266 of 2020, C.W.J.C. No. 7322 of 2022 and C.W.J.C. No. 7673 of 2020 were disposed of by a common judgment dated 17.03.2021 by another learned Single Judge. Against the decisions in these writ petitions, L.P.A. No. 609 of 2021, L.P.A. No. 621 of 2021 and L.P.A. No. 608 of 2021 respectively were filed, again all by the BSSC. Yet another writ petition filed as C.W.J.C. No. 7567 of 2020 was disposed of following the decision dated 03.03.2021 by yet another learned Single Judge against which L.P.A. No. 663 of 2021 is filed by ‘the BSSC’. Writ petition filed in the year 2021, numbered as C.W.J.C. No. 465 of 2021, was dismissed by another learned Single Judge on 13.01.2022, finding that the selection process had been completed; against which L.P.A. No. 84 of 2022 is filed by the writ petitioners. There is also posted along with the appeals, C.W.J.C. No. 10905 of 2016 filed by an individual, which also is with respect to the very same notification. We have to look at the individual writ petitions and the prayers made therein to understand the scope of the litigation, especially since the various intervening applications were not considered by the learned Single Judge. 5. C.W.J.C. No. 10905 of 2016 was the first of the writ petitions, filed seeking an amendment to Rule 6 of 'the Rules of 2014', which rule specified the qualification for appointment to the post of Lab Technician by direct recruitment. 5. C.W.J.C. No. 10905 of 2016 was the first of the writ petitions, filed seeking an amendment to Rule 6 of 'the Rules of 2014', which rule specified the qualification for appointment to the post of Lab Technician by direct recruitment. The writ petition sought for an equivalence to the qualification of Intermediate Vocational Examination with one year Technical Apprenticeship Training from the Board of Practical Training (Vocational), Eastern Region, Calcutta, Ministry of Human Resource Development, India. The petitioner Nos. 1 to 10, obviously, were persons having such qualification, which they claimed, is equivalent to I.Sc./10+2 (Biology) and diploma course of Lab Technicians from Government recognized institutions. The petitioners were also working as Lab Technicians in the different Government Primary Health Centres, District Hospitals and S.K.M.C.H., Muzaffarpur under R.N.T.C.P. Scheme; for several years on contractual basis having been appointed as per earlier Rules of 2005. The said writ petition somehow remained pending without being tagged along with the other writ petitions. 6. C.W.J.C. No. 6761 of 2020 was filed by a solitary individual who had appeared in counselling, pursuant to the selection and was not called for the interview. The petitioner sought for consideration in the interview to be conducted. 7. C.W.J.C. No. 7175 of 2020 was filed by 84 writ petitioners challenging the select list of the candidates published/uploaded vide Memo No. 873/AA dated 29.05.2020 by ‘the BSSC’. They also prayed for consideration and acceptance of their qualification in Bachelor of Medical Laboratory Technology ( for brevity ‘BMLT’) for the post of Lab Technician advertised by ‘the BSSC’ dated 21.06.2015. The petitioners were having ‘BMLT’ qualifications in addition to the technical educational qualification of Diploma in Medical Laboratory Technician ( for brevity ‘DMLT’), as per the amendment brought in Cadre Rules of 2014, in 2019. 8. C.W.J.C. No. 7406 of 2020 was filed by a petitioner, with ‘the DMLT’ certificate from the Institute of Medical and Technological Research, Calcutta. The petitioner had been working in the District Tuberculosis Centre, Siwan, as is evident from Annexure-P/7, on contractual basis when he applied under the Notification of 2015 to the post of Lab Technician. 9. C.W.J.C. No. 7414 of 2020 was filed by a person who had obtained ‘DMLT’ from Bihar itself and a higher qualification of Bachelor of Science in the discipline of Medical Lab Technology from Punjab Technical University. 10. 9. C.W.J.C. No. 7414 of 2020 was filed by a person who had obtained ‘DMLT’ from Bihar itself and a higher qualification of Bachelor of Science in the discipline of Medical Lab Technology from Punjab Technical University. 10. Likewise, C.W.J.C. No. 9874 of 2020 was filed by 07 petitioners, who had obtained their ‘DMLT’ from outside the State of Bihar but from the Universities or the Institutions recognized by the University Grants Commission and the respective State Governments. 11. C.W.J.C. No. 7266 of 2020 was filed by another contractual employee under the Government of Bihar, who was not called for the interview, since he had passed the ‘DMLT’ examination of the year 2000 from the Indian Medical Association, Headquarters, I.M.A. House, Indraprastha Marg, New Delhi-110002, recognized by the Directorate General of Health Services, Government of India. The petitioner though passed the Para Medical Final Examination conducted by ‘the IMA’, appeared for it from MGM Hospital, Patna, as is evident from Annexure-P/9. 12. C.W.J.C. No. 7322 of 2020 was filed by an Association and 42 individuals, who had obtained the Diploma in Lab Technician course from outside the State of Bihar. It was their contention that they had obtained the Diploma in the very same subject from the institutions recognized by the Government of India and the other State Governments. 13. C.W.J.C. No. 7673 of 2020 was filed by 22 individuals, who had obtained their ‘DMLT’ from the institutions outside the State of Bihar. 14. C.W.J.C. No. 7567 of 2020 has been filed by 117 petitioners for similar relief for consideration of their qualification of ‘DMLT’ obtained from the institutions outside the State of Bihar. 15. C.W.J.C. No. 465 of 2021 is filed by 09 petitioners, who have qualification of ‘DMLT’ from the recognized institutions but from outside the State of Bihar and have been working on contractual basis in different Health Centres in the State of Bihar. 16. Interim order No.5 dated 02.02.2022 in the appeals took note of the fact that there was a protracted litigation both before this Court and the Hon’ble Supreme Court. The Hon’ble Apex Court had dismissed the S.L.P. preferred by some of the candidates. It was observed that after completion of the selection process, 1138 candidates were shortlisted among whom the appellants, who numbered between 257 to 260 were also allowed to participate in the said selection process. The Hon’ble Apex Court had dismissed the S.L.P. preferred by some of the candidates. It was observed that after completion of the selection process, 1138 candidates were shortlisted among whom the appellants, who numbered between 257 to 260 were also allowed to participate in the said selection process. Considering the urgent need for finalization of the process of selection and appointment, especially due to the pandemic situation; during the pendency of the appeals, the names of the petitioners, who were on contractual basis discharging the duties of Lab Technicians were directed to be considered for selection and appointment since they were also found to be eligible by the learned Single Judge as per 'the Rules of 2019'. The Division Bench directed not only the writ petitioners but also the applicants in the Interlocutory Applications in the appeals to be entitled to be considered for selection. The consideration was specifically directed to be only of those persons who were found eligible as per 'the Rules of 2005' as also the amended ‘Rules of 2019’. 17. The interim orders passed in the appeal also indicate that there was also a suggestion to the Government to resolve the disputes regarding persons who were already employed with the Government, which resolution was at one time awaited by the Court, as is indicated from order No. 15 dated 11.04.2023. As of now, the appointments are made subject to the final disposal of the writ appeal. 18. We have heard Sri Lalit Kishore, learned Senior Counsel for the appellant/Bihar Staff Selection Commission and the other counsel appearing for the individual appellants. For the respondents, learned Senior Counsel, Sri Manan Kumar Mishra and Smt. Nivedita Nirvikar appeared and argued. 19. What is to be noticed at the inception is the Rules during the different periods, i.e. the prescription in 2005, the Rules of 2014 and that which was amended in the year 2019. As per notification dated 31.12.2005 the definition of paramedical was as follows:— “Definition:—In this rule unless, the context otherwise requires:— (a) Para Medical/Para Dental means: Physiotherapy, Occupational Therapy, Orthotics and Prosthetic, Operation Theatre Assistant, Opthalmic Assistant, Medical Laboratory, Technician, Sanitary Inspector, X-ray Technician, Dental Mechanic, Dental Hygienist, Dresser, Hearing Language and Speech Therapy, E.C.G. Technician and those course of studies which are not covered by any rule, regulations/act of the State/Central Government. It was under these Rules that the writ petitioners were appointed as Lab Technicians on contractual appointment. The Rules as is indicated, have a wide range and even permit course of studies which are not covered by any Rule, Regulation or Act of the State/Central Government. The writ petitioners were appointed on contractual basis as per the aforesaid rules. It cannot but be stated that the contractual appointees could not have nor have they sought, regularization of their appointments. 20. The Cadre Rules of 2014 came into effect from 26.02.2014. The qualification as per Rule 6 was as below:— “6. Qualification.—(1) For appointment by direct recruitment to the basic grade posts, minimum educational qualification shall be I.Sc/10+2 (Biology)pass. In addition to this, it shall be necessary to have passed the Diploma Course of Lab Technician from a government recognized institution. (2) For direct recruitment in the Lab Technician Cadre, minimum age limit shall be 21 years and maximum age limit shall be the same as may be determined reservation category wise, from time to time, by the government. 1st August of the concerned year shall be deemed to be the cut off date for determination of age. The aforesaid Rules required the qualification for the post of Lab Technicians to be a diploma course from a Government recognized Institution. There was also a definition of Government in 'the Rules of 2014' which was restricted to the Bihar State Government. A list of such Institutions have also been produced as Annexure A to the counter affidavit dated 19.08.2020 filed on behalf of ‘BSSC’ in C.W.J.C. No. 6761 of 2020 out of which L.P.A. No. 296 of 2021 arises. 21. Now we come to 'the Rules of 2019' from which Rule 3, 6, 7 and 13 of the Cadre Rules of 2014 were substituted, which have also been extracted in the judgment of the learned Single Judge. For convenience, we extract only Rule 6 of 'the Rules of 2019', which is given below:— “6. Qualification.—(1) For direct recruitment to the basic category posts, minimum educational qualification shall be pass in intermediate/ +2(Physics, Chemistry, Biology with English) pass. In addition to this, it shall be necessary to have passed Lab Technician Diploma Course/Bachelor in Medical Laboratory Technology from Union of India and other States government recognized Institution and it shall be necessary to have a Certificate related thereto. In addition to this, it shall be necessary to have passed Lab Technician Diploma Course/Bachelor in Medical Laboratory Technology from Union of India and other States government recognized Institution and it shall be necessary to have a Certificate related thereto. 'the Rules of 2019' provided recognition to diploma courses as also graduate courses in Medical Laboratory Technology from Institutions recognized either by the Union of India or any State Government. 22. The learned Single Judge was of the considered opinion that the writ petitioners, who were working on contractual basis had acquired sufficient experience and were eligible under the terms of the 2005 notification and even in terms of 'the Rules of 2019' which was in place at the time of counseling and the writ petitioners, who were invited for counseling by ‘the BSSC’ deserved consideration of their candidature. It was noticed that there were correspondences between the Health Department and ‘the BSSC’ on the issue of appointing persons with higher qualifications with valid degree and though the opinion of the Health Department was communicated to ‘the BSSC’, it decided to oust such persons from the zone of consideration, ignoring their higher qualification and recognition of their graduate degrees. It was held that there was no reason or justification to oust the petitioners from the zone of consideration particularly after inviting them to participate in the counseling. What weighed with the Court was also the fact that the petitioners were working for the last 10-15 years, who have acquired special knowledge on the functions of a Lab Technician and they would be an asset to the State Government Hospitals, thus, deserving at least consideration for once, in the matter of regular selection. It was on this reasoning that the writ petitions were allowed by the learned Single Judge. 23. We are unable to subscribe to the above findings of the learned Single Judge especially since it would not be proper for Courts to decide on the necessary qualification required for appointment to the posts in the Government; which prescription is in the absolute discretion of the Government. In judicial review under Article 226, we could only look at whether the Rules were arbitrary or discriminatory, thus, requiring interference. We have to notice that there was no claim for higher qualified people to be considered in the writ petition. In judicial review under Article 226, we could only look at whether the Rules were arbitrary or discriminatory, thus, requiring interference. We have to notice that there was no claim for higher qualified people to be considered in the writ petition. The writ petitioners were only those persons who were contractually appointed and were aggrieved with the fact that they were restricted from making applications because of the new Rules introduced. The advertisement dated 21.06.2015 was issued after 'the Rules of 2014' which came into force. We have already extracted the qualifications prescribed as per the Cadre Rules of 2014 which is a diploma in Lab Technician course acquired from the State Government recognized Institutions. We are of the opinion that neither 'the Rules of 2005' nor that of 2019 can have any relevance in considering the selection and appointment made under the Cadre Rules of 2014. 24. We garner support from the decision of the Hon’ble Supreme Court in Zonal Manager, Bank of India and Others vs. Aarya K. Babu and Another reported in (2019) 8 SCC 587 . We have to notice elaborately the facts of the said case to make the dictum applicable to the present case since every declaration of law has to be applied on the facts arising in that case. Therein, the recruitment was to the post of Agriculture Field Officer (Scale 1). The party respondents in the appeal before the Hon’ble Supreme Court were provisionally selected subject to verification of their documents and allotment was made to the appellant-Banks. Their selection, however, stood canceled for reason of the qualification possessed by those respondents were not that prescribed in the notification for appointment. 25. The selected candidates challenged the cancellation of this appointment before the High Court. What was prescribed in the advertisement was a 4 years degree in Agro Forestry while that acquired by the writ petitioners was a 4 year degree in Forestry. The learned Single Judge took note of the fact that there was no 4 years degree program in the country for Agro Forestry. The Indian Council of Agriculture & Research (for brevity ‘the ICAR’) had furnished information that the definition of agriculture included forestry. ‘Agro Forestry’ was covered comprehensively as a subject in the syllabus of Forestry and ‘the ICAR’ found that a graduation in Forestry can be considered for the post of Agriculture Field Officers in the Banks. The Indian Council of Agriculture & Research (for brevity ‘the ICAR’) had furnished information that the definition of agriculture included forestry. ‘Agro Forestry’ was covered comprehensively as a subject in the syllabus of Forestry and ‘the ICAR’ found that a graduation in Forestry can be considered for the post of Agriculture Field Officers in the Banks. Apart from all this, the Ministry of Agriculture and Farmers Welfare as also the Ministry of Finance subsequently took note of the error; that there is no 4 years course of Agro Forestry in the country. Looking at these aspects and relying on such opinion of authorities with domain knowledge, the cancellation of appointments were set at naught. The decision of the Single Bench was confirmed by the Division Bench also, taking note of the fact that in the year 2016, by a corrigendum for selection to the very same post, the 4 year BSc degree in Forestry and Agriculture Biotechnology, Food Sciences and Agriculture Business Management were included as recognized qualifications. 26. The Division Bench of the High Court of Bombay had refused to apply the corrigendum to the prior year of selection. But the Division Bench of the Kerala High Court disagreed with the same and upheld the order of the learned Single Judge. The Hon’ble Supreme Court framed the short question for consideration as to whether the Courts would be justified in undertaking the exercise of providing equivalence and declare it equivalent to the qualification prescribed in the recruitment notification by taking note of extraneous factors, though such qualifications of equivalence is not declared by the employer, who makes the recruitment. One other question framed for consideration was as to whether a particular qualification made eligible by a subsequent recruitment notification can be considered retrospectively in respect of the recruitment process which has commenced prior to such recognition being granted. 27. We extract paragraph 12 of the decision in Aarya K. Babu (supra), which is given below:— 12. Though we have taken note of the said contention we are unable to accept the same. We are of such opinion in view of the well-established position that it is not for the Court to read into or assume and thereby include certain qualifications which have not been included in the notification by the employer. Though we have taken note of the said contention we are unable to accept the same. We are of such opinion in view of the well-established position that it is not for the Court to read into or assume and thereby include certain qualifications which have not been included in the notification by the employer. Further the rules as referred to by the learned counsel for the respondents is pointed out to be a rule for promotion of officers. That apart, even if the qualification prescribed in the advertisement was contrary to the qualification provided under the recruitment rules, it would have been open for the candidate concerned to challenge the notification alleging denial of opportunity. On the other hand, having taken note of the specific qualification prescribed in the notification it would not be open for a candidate to assume that the qualification possessed by such candidate is equivalent and thereby seek consideration for appointment nor will it even be open for the employer to change the requirements midstream during the ongoing selection process or accept any qualification other than the one notified since it would amount to denial of opportunity to those who possess the qualification but had not applied as it was not notified. 28. We cannot but reiterate that the notification was issued on the basis of Cadre Rules of 2014 which made eligible only those candidates, who had obtained diploma in Lab Technician course from the Institutions recognized by the Government of Bihar. Neither can 'The Rules of 2005' nor the qualification therein be imported into the matter of selection and appointment pursuant to such advertisement, nor can 'the Rules of 2019' be applied to the earlier advertisement to regulate the qualifications prescribed therein. When the Government had brought out 'the Rules of 2019', it would have been perfectly open for the State Government to have given up the selection and proceeded with a fresh selection under the since Rules of 2019; in which event there had to be a fresh advertisement giving all who had similar and identical qualifications to apply and participate in the selection process. Whatever be the reason, the Government decided to go ahead with the selection as per the 2015 advertisement, which was in tune with the Cadre Rules of 2014. Whatever be the reason, the Government decided to go ahead with the selection as per the 2015 advertisement, which was in tune with the Cadre Rules of 2014. The Government having thus proceeded with the selection process, it is not for the Courts to interdict the same nor for it, to bring in persons, who were not qualified as per the advertisement and the Cadre Rules of 2014, which rules regulated the advertisement. 29. The writ petitioners were contractual employees appointed to the post of Lab Technicians, who would have to vacate their respective posts after regular selection is conducted. The mere fact that they continued on contractual employment would not make them eligible for applying under the advertisement unless their qualifications are recognized and there is a specific prescription for such experienced hands to apply, even when their qualification is not the one recognized under the Cadre Rules. In fact, rule 7 of 'the Rules of 2014' provided a procedure for recruitment wherein work experience in the Government hospitals of the State of Bihar was given a weightage of 25 marks; 5 marks for every year subject to a maximum of 25. However, this could inure to the benefit of the candidate only if he has essential qualification of a diploma course of Lab Technician from the Government recognized Institution. 30. The Court cannot substitute 'the Rules of 2014' with a rule brought out subsequently, in this case, in the year 2019 merely for the reason that the selection initiated as per the Cadre Rules of 2014 had not culminated till then. As we noticed, the State Government would have had the authority to abandon the selection process initiated and proceed with another fresh selection based on the amended rules, which they did not resort to. As far as the present selection is concerned, we are of the opinion that only those persons who are qualified under the Cadre Rules of 2014 could be considered for selection, as per the advertisement of the year 2015. 31. For equating the qualifications prescribed with the other qualifications obtained by the various petitioners we have to notice Guru Nanak Dev University vs. Sanjay Kumar Katwal and Another reported in (2009) 1 SCC 610 . It has held that “equivalence is a technical academic matter. 31. For equating the qualifications prescribed with the other qualifications obtained by the various petitioners we have to notice Guru Nanak Dev University vs. Sanjay Kumar Katwal and Another reported in (2009) 1 SCC 610 . It has held that “equivalence is a technical academic matter. It cannot be implied or assumed.” The Government, which is the Appointing Authority has prescribed certain qualifications and it does not lie on this Court to equate it with other qualifications, even if the other qualifications were recognized by the subsequent rules. 32. The learned Senior Counsel for ‘the BSSC’ had relied on Y. V. Rangaiah & Others vs. J. Sreenivasa & Others reported in AIR 1983 SC 852 , wherein it was held that vacancies which occurred prior to the amendment of the rules would be governed by the old rules and not by the new rules. Sri Manan Kumar Mishra, on the other hand, pointed out that the said decision has been substantially overruled by a later three Judge Bench of the Hon’ble Supreme Court in State of Himachal Pradesh vs. Raj Kumar and Others, reported in (2023) 3 SCC 773 . That was a case in which the High Court had interfered with the action of the State to promote persons under the rules existing at the time of consideration for promotion. The High Court directed the State to consider the writ petitioners for promotion under the rules that existed when the vacancies arose and not as per the subsequently amended Rules, following Y. V. Rangaiah (supra). After examining the principle in the context of the constitutional position of ‘services under the State’, the three Judge Bench reviewed the decisions that followed and distinguished Y. V. Rangaiah (supra) and held that the broad proposition formulated in Y. V. Rangaiah (supra) does not reflect the correct constitutional position. 33. We have to pertinently notice that the aforesaid decision came in the context of the State having decided to promote persons on the basis of the existing rules and not on the basis of the rules that existed at the time ,when the vacancy arose. It was held that the right to be considered for promotion occurs on the date of consideration of eligible candidates and applicable rules would be the rule in force at the time of such consideration for promotion. It was held that the right to be considered for promotion occurs on the date of consideration of eligible candidates and applicable rules would be the rule in force at the time of such consideration for promotion. Therein, the consideration was for promotion of existing employees while herein, the consideration was for fresh appointment as per the advertisement brought out, based on the then existing rules which were amended before the selection and appointment, as per the earlier rules had concluded. It is to be pertinently observed that the three Judges Bench of the Hon’ble Supreme Court reiterated the principle that there is no vested right to be considered for promotion in accordance with the repealed rules in view of the policy decision of the Government and there is no obligation on the Government to make appointments as per the old rules in the event of restructuring of cadre, intended for efficient working of the unit. In fresh appointments also, the right is only for consideration and not for appointment as such. In fact, the three Judges Bench had specifically held that even when a recruitment process had commenced, the State has the right to stop the recruitment process any time before the appointment takes place; asserting that there is no vested right to get the process completed. The only reservation is insofar as the State being obliged to justify its action on the touchstone of Article 14 of the Constitution, if it adopts such course. Even going by the declaration of the three Judge Bench, the State had the power to stop the recruitment process and initiate a fresh one as per the amended rules; which was not done. In the aforesaid circumstances, it cannot be directed that the State should permit even candidates, who are not qualified as per the rules, based on which the advertisement was made, to be eligible for consideration if they were eligible as per the rules existing earlier to the advertisement based on which contractual appointments were made or on the basis of the eligibility as reckoned by the amended rules, which had come into force long after the selection process had commenced. These are all matters of policy and it may not be proper for this Court to interfere with the same. 34. These are all matters of policy and it may not be proper for this Court to interfere with the same. 34. More apposite would be the decision of another three Judges Bench in AIR 1990 SC 405 reported in P Mahendran & Others vs. State of Karnataka & Others, which was with respect to fresh recruitment of Motor Vehicle Inspector made by the Karnataka Public Service Commission. Therein, the recruitment rules as well as the subject advertisement issued by the Commission enabled the diplomates in Mechanical Engineering and Automobile Engineering to apply for the post of Motor Vehicle Inspector. As in the present case, the Commission proceeded with their selection and the same 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 selection commenced in the year 1983, but the rules were amended in the meanwhile, on 14.05.1987 and the Commission completed the interviews and finalized the select list by 02.06.1987, which was published in the gazette on 23.07.1987. The rules were prospective and in the absence of any express provision, it was held to be not retrospective. It was held that the rules which are prospective in nature cannot take away or impair the right of candidates holding diploma in Mechanical Engineering from being selected and appointed. 35. We extract paragraph 5 and a portion of paragraph 11 of the said judgment. 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. 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. 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 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 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 unnecessary hardship to those who have no control over the subject matter. *** “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 advertisement issued by Public Service Commission in accordance with recruitment Rules he acquires right to be considered for selection in accordance with the then existing 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.” 36. The aforesaid three Judge Bench decision was also referred to by the three Judges Bench in Raj Kumar (supra). Paragraphs 32, 33 and 34 in Raj Kumar (supra) are extracted below:— 32. The Tribunal in our opinion was in error in setting aside the select list prepared by the Commission.” 36. The aforesaid three Judge Bench decision was also referred to by the three Judges Bench in Raj Kumar (supra). Paragraphs 32, 33 and 34 in Raj Kumar (supra) are extracted below:— 32. N.T. Devin Katti vs. Karnataka Public Service Commission [N.T. Devin Katti vs. Karnataka Public Service Commission, (1990) 3 SCC 157 : 1990 SCC (L&S) 446] , is a case concerning appointment to the post of Tahsildar, a selection post governed under the 1975 Rules [Karnataka Administrative Services (Tehsildars) Recruitment (Special) Rules, 1975.] , to be filled from in-service candidates. While the advertisement was issued in May 1975, the procedure for selection of candidates by following the rules of reservation in favour of SC/ST candidates was brought into force on 9.7.1975. The Court held that as the advertisement expressly stated that the selection shall be made in accordance with the existing rules, the candidates who have appeared in the written test and have undergone viva voce acquired a vested right for being considered for selection in terms of the advertisement. The Court held that, as the rules have no retrospective effect, the recruitment process cannot be affected. It is in this context, that the Court referred to Rangaiah [Y.V. Rangaiah vs. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] and P. Ganeshwar Rao [P. Ganeshwar Rao vs. State of A.P., 1988 Supp SCC 740 : 1989 SCC (L&S) 123] . The Court also relied on Calton [A.A. Calton vs. Director of Education, (1983) 3 SCC 33 : 1983 SCC (L&S) 356] which was related to the appointment for the post of Principal under the U.P. Intermediate Education Act, 1921, and Mahendran case [P. Mahendran vs. State of Karnataka, (1990) 1 SCC 411 : 1990 SCC (L&S) 163] which was related to the recruitment process for direct appointment to the post of Motor Vehicle Inspector. Changes made to the rules after the issuance of the advertisement was the question under consideration. 33. The Court observed : (N.T. Devin Katti case [N.T. Devin Katti vs. Karnataka Public Service Commission, (1990) 3 SCC 157 : 1990 SCC (L&S) 446] , SCC p. 165, para 11) “11. There is yet another aspect of the question. Changes made to the rules after the issuance of the advertisement was the question under consideration. 33. The Court observed : (N.T. Devin Katti case [N.T. Devin Katti vs. Karnataka Public Service Commission, (1990) 3 SCC 157 : 1990 SCC (L&S) 446] , SCC p. 165, para 11) “11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has the right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended Rules are retrospective in nature.” 34. This case concerns appointment to the post pursuant to an advertisement prescribing certain qualifications. Candidates who have applied on the basis of such qualifications have a right to be considered on the basis of the advertisement and such a right cannot be taken away without making a retrospective amendment to rules is the ratio of this case. The issue involved in this case is different from the one confronting us. The case does not throw much light on the issue involved in the present case. 37. The three Judges Bench in Raj Kumar (supra) also considered K. Ramulu & Another vs. S. Suryaprakash Rao and Others, in (1997) 3 SCC 59 which held so in paragraph 55:— 55. K. Ramulu vs. S. Suryaprakash Rao [K. Ramulu vs. S. Suryaprakash Rao, (1997) 3 SCC 59 : 1997 SCC (L&S) 625] is an important decision. The issue related to applicability of the A.P. Animal Husbandry Services Rules, 1996 (which repealed the existing 1977 Rules) to vacancies that arose before the 1996 Amendment to the promotional post of Assistant Director. Under Rule 4, the Government was to prepare and operate the panel for the year 1995-1996 for promotion to the said post. However, a conscious decision was taken in 1988 by the Government not to fill up any vacancies until the repealed rules were duly amended. In light of this, the Government did not prepare and finalise the panel for promotion to the post of Assistant Veterinary Surgeons to Assistant Director for the year 1995-1996. It was held that : (SCC pp. However, a conscious decision was taken in 1988 by the Government not to fill up any vacancies until the repealed rules were duly amended. In light of this, the Government did not prepare and finalise the panel for promotion to the post of Assistant Veterinary Surgeons to Assistant Director for the year 1995-1996. It was held that : (SCC pp. 66-67, paras 12, 13 & 15) “12. … But the question is whether the ratio in Rangaiah case [Y.V. Rangaiah vs. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] would apply to the facts of this case. The Government therein merely amended the Rules, applied the amended Rules without taking any conscious decision not to fill up the existing vacancies pending amendment of the Rules on the date the new Rules came into force. It is true, as contended by Mr H.S. Gururaja Rao, that this Court has followed the ratio therein in many a decision and those cited by him are P. Ganeshwar Rao vs. State of A.P. [P. Ganeshwar Rao vs. State of A.P., 1988 Supp SCC 740 : 1989 SCC (L&S) 123] , P. Mahendran vs. State of Karnataka [P. Mahendran vs. State of Karnataka, (1990) 1 SCC 411 : 1990 SCC (L&S) 163] , A.A. Calton vs. Director of Education [A.A. Calton vs. Director of Education, (1983) 3 SCC 33 : 1983 SCC (L&S) 356], N.T. Devin Katti vs. Karnataka Public Service Commission [N.T. Devin Katti vs. Karnataka Public Service Commission, (1990) 3 SCC 157 : 1990 SCC (L&S) 446], Ramesh Kumar Choudha vs. State of M.P. [Ramesh Kumar Choudha vs. State of M.P., (1996) 11 SCC 242 : 1997 SCC (L&S) 384] In none of these decisions, a situation which has arisen in the present case had come up for consideration. … 13. It is seen that since the Government have taken a conscious decision not to make any appointment till the amendment of the Rules, Rule 3 of the General Rules is not of any help to the respondent . … *** 15. Thus, we hold that the first respondent has not acquired any vested right for being considered for promotion in accordance with the repealed Rules in view of the policy decision taken by the Government which we find is justifiable on the material available from the record placed before us. … *** 15. Thus, we hold that the first respondent has not acquired any vested right for being considered for promotion in accordance with the repealed Rules in view of the policy decision taken by the Government which we find is justifiable on the material available from the record placed before us. We hold that the Tribunal was not right and correct in directing the Government to prepare and operate the panel for promotion to the post of Assistant Directors of Animal Husbandry Department in accordance with the repealed Rules and to operate the same.” (underlined for emphasis) 38. The clear distinction drawn in Raj Kumar (supra) is insofar as the Government, despite proceeding with a selection, having dropped it midway to carry out a fresh selection, in accordance with the rules brought in afresh or amending those that existed when the first selection had commenced. In the present case, the selection was commenced as per the Rules of 2014 and it was proceeded with despite an amendment to the Rules in 2019. The amended rules were not retrospective. The Government also did not commence a fresh selection after the amendment which amendment was only prospective. Y. V. Rangaiah (supra) which held every selection to be held in accordance with the rules that existed at the time of arising of vacancy was found to be wrongly decided. But, P Mahendran (supra) a co-ordinate Bench decision was left untouched by Raj Kumar (supra). The declaration of law in P Mahendran (supra) is that which is applicable herein. 39. It is very pertinent that the writ petitioners did not challenge the conditions of the advertisement nor the Cadre Rules of 2014. The writ petitioners, who were contractual employees also did not seek for regularization. The eligibility has to be reckoned as on the date of advertisement which initiated the selection, which was proceeded with even after the rules were amended. The writ petitioners, who were contractual employees also did not seek for regularization. The eligibility has to be reckoned as on the date of advertisement which initiated the selection, which was proceeded with even after the rules were amended. As we notice, the learned Single Judge in the impugned judgment directed the petitioners to be treated as eligible and also issued direction to revise the entire merit list after considering the petitioners for selection, as they were working as Lab Technicians on contractual basis in the Government run hospitals and thus were eligible in terms of the ‘Rules of 2005’ notification and ‘the Rules of 2019’, giving a complete go-by to 'the Rules of 2014' based on which the advertisement was issued. As we noticed, there is considerable enlargement of the scope of the challenge insofar as even those who had not been working as contractual employees, who joined the fray by seeking impleadment as intervenors, without agitating their cause in separate writ petitions. We find absolutely no reason to entertain the said prayers. We also find no reason to uphold the judgment of the learned Single Judge in the appeals filed except in L.P.A. No. 84 of 2022, in which the impugned judgment dismissed the writ petition finding the selection process to be completed. We also find no valid reason to entertain C.W.J.C. No. 10905 of 2016. 40. L.P.A. No. 84 of 2022 and C.W.J.C. No. 10905 of 2016 stand dismissed. The other appeals stand allowed setting aside the judgment of the learned Single Judges, first issued in a batch of writ petitions on 03.03.2021 and later followed by other learned Single Judges. We direct the appointments to be carried out strictly in accordance with the advertisement and 'the Rules of 2014' and if necessary revise the select list and even the appointments made, which were subject to the result of the appeals. 41. Ordered accordingly. Rajiv Roy, J.—I agree.