Punjab-Haryana High Court
Renu Ahuja vs State Of Punjab And Ors. on 23 January, 1992
Equivalent citations: (1992)102PLR168
JUDGMENT Jawahar Lal Gupta, J.
1. The petitioners in these two petitions, viz. C. W. P. Nos. 15759 and 13180 of 1991, have a common grievance. The challenge is directed against an additional qualification prescribed by the Commission (Respondent No. 2), in its advertisement of July 13, 1991 for 187 posts of Lecturers by which it has been directed that the candidates "should have qualified the comprehensive test prescribed under the guidelines issued from time to time by the University Grants Commission or by the Government of Punjab." The petitioners maintain that at the time of occurrence of these vacancies the above stated qualifications had not been prescribed, and, as such, the posts have to be filled up in accordance with the rules which were in force at the relevant time. The facts as stated in C. W. P. No. 15759 of 1991 may be briefly noticed.
2. The petitioner herein passed her B. Com. Examination in the year 1985 in IInd Division. She passed the M. Cora. Examination, in 1987 and the B. Ed. Examination in the year 1988. She secured First Division in the M Corn. as well as B. Ed, Examinations. On October 9, 1989 the Punjab Public Series Commission (hereinafter referred to as 'the Commission') advertised certain posts of Lecturers in various Government colleges. It is averred that the qualifications prescribed in this advertisement were in conformity with the provisions of the Punjab Educational Service (College Cadre Class II) Rules, 1976 (hereinafter referred to as 'the Rules'). However, no selections were made in pursuance of this advertisement in spite of the fact that various candidates, including the petitioner, had applied for the post. On July 13, 1991 another advertisement appeared in the daily Tribune. In this advertisement it was, inter alia, stipulated as under :-
Qualifications.-(i) Master's Degree in the relevant subject with at least Fifty five per cent (55%) marks or its equivalent grade as the case may be ; (ii) Good Academic Record ; and (iii) should have qualified the Comprehensive, test prescribed under the guidelines issued from time to time by the University Grants Commission or by the Government of Punjab (Explanation) : The term 'Good Academic Records' means at least Second Class with fifty per cent (50%) marks in Graduation Degree).
Note :- 1. As per guidelines of the U. G. C., the candidates who have already got M. Phill degree by 31.3.1991 and who will be awarded Ph. D. degree by 12.8.1991 (closing date) have been exempted from qualifying the above mentioned comprehensive tests. xx xx xx xx xx Candidates who have already applied in response to Commissioner's advertisement No. 9 (viii) mentioned above may not apply again. Their previous applications will be considered and eligibility determined as per new advertisement conditions".
3. The primary grievance made out in the petition is that the statutory rules framed under Article 309 of the Constitution having not been amended, the posts of Lecturers have to be filled up in accordance with the Rules which were in force at the relevant time, and that only such qualifications can be prescribed as were laid down prior to the occurrence of these vacancies. The petitioner avers that she was eligible to be considered at the time when the posts came into existence. The qualifications now prescribed in the advertisement of July 13, 1991, make her ineligible. The revision of qualifications has been challenged as being violative of Articles 14 and 16 of the Constitution.
4. Civil Misc. No. 7571 of 1991 was filed on behalf of the petitioner for permission to raise an additional ground that the prescription of a test as a condition for eligibility was unlawful, illegal, arbitrary and ultra vires of the powers of the respondents. This application was allowed by order dated 1st November, 1991.
5. A written statement has been filed on behalf of respondent No. 2, viz. the Commission. It has been inter alia, averred that the petitioner had applied for direct recruitment to posts of College Lecturers in response to the advertisement dated September 9, 1989. The interviews were not held as the educational qualifications laid down under the Rules were being revised. Vide notification dated January 10, 1991 the statutory rules had been amended. The advertisement dated July 13,1991 had been issued in accordance with the amended rules. It has been further averred that originally applications had been invited for 130 posts of College Lecturers in various subjects. After the issuance of the advertisement, the State Government had written to the Commission on September 25, 1989, pointing out that the qualifications should belaid down in accordance with the circular issued by the University Grant Commission. A copy of this letter has been produced as Annexure R-2. Vide its letter dated October 17,1989, the Commission pointed out to the State Government that the advertisement had been made by the Commission according to the prevalent service rules In case the Government is interested in making selection according to the proposed new qualifications, necessary notification with regard to the revision of qualifications should be issued. It was pointed out that in case the rules are amended, the Commission shall issue a fresh advertisement. A copy of this letter has been produced as Annexure R-3 The Rules were actually amended. Thereafter vide its letter dated April 16, 1991 the State Government forwarded afresh requisition for 187 vacancies to the Commission, In pursuance of this requisition, the Commission had issued the advertisement dated July 13, 1991. It has been pointed out that the petitioner does not possess the qualifications as prescribed vide notification dated January 10, 1991. Accordingly, she is not eligible to be considered. The various grounds raised in the petition have been controverted;
6. I have heard M/s. S. S. Sood and G. K. Chatrath, learned counsel for the petitioners, and Mr. S. S. Dhaliwal, learned Deputy Advocate General, for the respondents On behalf of the petitioners it has been urged that the vacancies had originally occurred in the year 1989 and were accordingly advertised through the Public Service Commission. At that time there was no requirement that the applicants should have qualified the comprehensive test prescribed under the guidelines issued by the University Giants Commission or by the Government of Punjab. The petitioners have a right to be considered in accordance with the qualifications which existed at the time of the occurrence of the vacancies. It is maintained on their behalf that the amended qualifications cannot be enforced in respect of the vacancies that had occurred prior to the amendment of the Rules. It has been further contended that the condition of passing the test is wholly arbitrary and illegal This stand of the petitioners has been controverted on behalf of the respondents.
7. What is an advertisement ? It is a notice to the people at large, to submit their applications. It is an effort to inform the public that certain vacancies exist and the eligible candidates can apply. The mere issuance of an advertisement or giving of a notice to the public to apply for the posts confers no right on the applicants to be appointed to the posts. In my view the advertisement of posts is a unilateral act of the employer. The advertisement can be with- drawn or varied at any time. If in response to an advertisement certain applications are received and the employer or the selecting agency on perusal of the applications finds that the candidates are not good enough or that certain different qualifications need to be prescribed, it is open to the authorities concerned to change or revise those qualifications. In case of recruitment to posts of Lecturers or for that matter to any class of posts, the employer is entitled to select the best. It is equally open to the employer to restrict the field of choice to persons who possess such qualifications as the employer considers essential for manning a particular post. In fact a rule which has been consistently recognised in service jurisprudence is that even selection for a post does not confer an indefeasible right to be appointed. Reference in this behalf can usefully be made to the law laid down by the Apex Court in The State of Haryaria v. Subash Chander Marwaha, 1973 (2) S L. R. 137 and Mani Subrat Jain v. State of Haryana, A. I. R. 1977 S. C. 276. If even selection to a post does not ordinarily confer a right on the selected candidate to get an appointment, a mere advertisement of the post or occurrence of a vacancy, which has to be filled up by direct recruitment, cannot confer any right, whatsoever. In my view, it is open to the employer to scrap an advertisement totally or to revise the qualifications at any time before the selections are actually made. This would, of course, be subject to the condition that the action of the employer should not be arbitrary or capricious.
8. Learned counsel for the petitioners, however, maintained that a candidate has an indefeasible right to be considered for a post which has been duly advertised by the Commission and that the consideration has to take place only on the basis of the qualifications which had been laid down at the time of the occurrence of the vacancy. Reliance has been placed on various decisions of the Supreme Court. The first case relied upon by the learned counsel for the petitioners is the decision of the Supreme Court in Y. V. Rangaiah and Ors. v. J. Sreenivasa Rao, A. I. R. 1983 S. C. 852. This was a case of promotion to the post of Sub-Registrar Grade II. On an examination of the rules and instructions it was, inter alia, observed by their Lordships of the Supreme Court that the vacancies which occurred prior to the amendment of the rules, would be governed by the old rules and not by the new rules. In case of promotion a person working on a lower post comes to acquire a right to be considered for promotion to the higher post. Unless the amendment is restrospective the right to be considered for promotion cannot be defeated. Accordingly, their Lordships took the view that the old vacancies would be governed by the old rules. Such is not the situation here. We are concerned with direct recruitment. Mere occurrence of the vacancy confers no right on a person to be considered for the post. The right to be considered arises after the advertisement in accordance with the prescribed qualifications. Consequently, I am of the view that the decision in Y. V. Rangaiah's case has no application to the facts of the present case.
9. The next decision relied upon is P. Ganeshwar Rao and Ors. v. State of Andhra Pradesh, A. I. R. 1988 S. C. 2068. In this case the Court was primarily concerned with the amendment made in the Special Rules on April 28, 1980. Following observations of their Lordships give the clue to the real ratio of the decision :
"7. It is clear from the Special Rules as they were in force prior to the amendment on 28.4.1980 that it was open to the State Government to fill 37 1/2 per cent of the vacancies (both substantive and temporary) in the cadre of Assistant Engineers by direct recruitment. It is also not in dispute that during the years 1978 and 1979 the position of the vacancies was such that it was permissible for the State Government to appoint 51 Assistant Engineers by direct recruitment. The only question which has now to be considered is whether the amendment made on 28 4.1980 to the Special Rules applied only to the vacancies that arose after the date on which the amendment came into force or whether it applied to the vacancies which had arisen before the said date also. The crucial words in the Explanation which was introduced by way of amendment in the Special Rules on 28.4.1980 were "37 1/2% of the substantive vacancies arising in the category of Assistant Engineers shall be filled by direct recruitment". If the above clause had read "37 1/2% of the substantive vacancies in the category of Assistant Engineers shall be filled by the direct recruitment" perhaps there would not have been much room for discussion. The said clause then would have applied even to the vacancies which had arisen prior to the date of the amendment but which had not been filled up before that date. We feel that there is much force in the submission made on behalf of the appellants and the State Government that the introduction of the word 'arising' in the above clause made it applicable only to those vacancies which came into existence subsequent to the date of amendment."
Further, in paragraph 8 it was, inter alia, observed as under ; -
"8.........Had it been the intention of the State Government, while promulgating the amendment that the amendment should be applicable to the vacancies which had arisen prior to the date of the amendment simultaneously the State Government would have addressed a letter to the Public Service Commission to make recruitment in accordance with the Special Rules as amended on 28.4.1980. No such action was taken by the State Government in this case."
The above observations clearly shows that the decision of the Court was based on the interpretation of the amendment made on April 28, 1980. Further the observations in paragraph 8. as quoted above, shows that it was open to the State Government to apply the amended rules to the vacancies which had arisen prior to the date of advertisement However, since the State had not addressed any letter to the Public Service Commission to make recruitment in accordance with the amended rules, it was inferred that the vacancies had to be filled up in accordance with the old rules. Such is not the situation here. The sequence of events given above clearly shows that after revising rules on January 10, 1991, the State Government had forwarded a requisition by its letter dated April 16, 1991 to the Commission. On receipt of this requisition the Commission had advertised the posts. In this advertisement the qualifications as amended by the Government vide its notification of January 10, 1991, have been prescribed. The action of the Government and the Commission appears to be in complete conformity with the decision in P. Ganeshwar Rao's case (supra).
10. Learned counsel for the petitioners had then relied on the following observations of the Apex Court in P. Mahendran and Ors. v. The State of Karnataka, 1990 (1) All India S.L.J. 48 :-
"............It is true that a candidate does not get any right to the post by merely making an application for the same, bat 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 the 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 Rules 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, the 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".
The learned counsel maintained that a right is created in the petitioners to. be considerd for the posts in accordance with the terms and conditions of the advertisement and the existing recruitment rules.
11. The question, however, is-Is the Government debarred from revising the qualifications and re-advertising the posts in accordance with the revised qualifications after it had advertised the posts ? This question is squarely answered by their Lordships' decision in Ganpshwar Rao's case (supra), to which reference has been made in the previous paragraph. In view of the observations quoted above, I am of" the view that it was open to the Commission to re-advertise the posts in accordance with the amended rules. The prescribed qualifications being in conformity with the Rules, no infirmity can be found in the impugned advertisement.
12. Learned counsel for the petitioners then relied on the decision in N. T. Devinkatti and Ors. v. Karnataka Public Service Commission, (1990) 3 S. C. 157. Their Lordships in paragraph 11 observed as under :-
"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 observations 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 rights 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 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 the 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. 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 riot 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."
Relying on the above observations, learned counsel maintained that the petitioners acquired a vested right to be considered for selection in accordance with the terms and conditions contained in the advertisement dated September 9, 1989. On a closer scrutiny, of the observations of their Lordships, I am of the view that if the Public Service Commission had proceeded to make selections in pursuance of the advertisement of September 9, 1989, the argument raised on behalf of the petitioners would be unanswerable. However, in view of the subsequent events, namely, the amendment of the Rules, the sending of revised requisition by the Government to the Public Service Commission and the re-advertisement of the posts, I am of the view that the petitioners had acquired no vested right of being considered in accordance with the Rules, which had been repealed or amended.
13. Mr. G. K. Chatrath, learned counsel for the petitioners, then referred to the decision of the Supreme Court in All Manipur Regular Posts Vacancies Substitute Teachers'' Association v. State of Manipur, A. I. I. R. 1991 S. C. 2088. In this case the Supreme Court was primarily concerned with regu- larisation of services of ad hoc teachers in the Education Department. In my view the observations of their Lordships were in an entirely different context and have no relevance to the facts of the present case. The cases relating to regularisation of services are of no assistance to the controversy involved in the present case
14. In view of the above, I have no hesitation in holding as under:
(i) Advertisement of posts does not debar the Government from revising the qualifications.
(ii) If the posts are re-advertised after the revision of qualifications, the candidates who had submitted their applications in response to the original advertisement did not acquire a vested right to be considered in accordance with the qualifications which had been originally prescribed.
(iii) The qualifications having been duly revised and the posts having been re-advertised in the present case, the action of the respondent-Commission in considering the petitioners as ineligible, did not violate any of the vested rights of the petitioners.
15. It is then contended that the qualifications regarding the passing of the comprehensive test is wholly arbitrary and illegal. After hearing the learned counsel for the petitioners, I am unable to sustain the plea. Firstly, it is not shown as to how the condition of passing the comprehensive test, prescribed by the University Grants Commission or the State Government, is wholly unrelated to the requirements of the posts. No factual data has been furnished in the petition in support of this contention Except the bald plea, it has not been shown by referring to the circular of the University Grants Commission or any other material that the test has no relation to the requirements of the posts. Secondly, I find nothing in principle to hold that the prescription of qualification, as prescribed in the present case, has introduced an element of arbitrariness in the statutory rules. Various Universities in the Country confer Post Graduate Degrees. It is not unknown that academic standards vary from place to place. The University Grants Commission or the State Government lay down uniform test and the persons who qualify the said test are assumed to be upto the required minimal standard. The selection is then confined to this ground of persons who have passed the test. I am unable to see even a remote element of arbitrariness in such a course of action. Accordingly, I have no hesitation in rejecting the contention.
16. Mr. Chatrath, learned counsel for the petition in C.W.P. No. 13180 of 1991, raised another contention that the petitioners are already working as temporary Lecturer in Government Colleges, and, therefore, the respondents should be directed to consider them as eligible. The factual premises in this contention has been laid in paragraph 6 of the petition, wherein it has been averred as under :-
"6. That during the pendency of this, the petitioners were appointed as temporary lecturers in Government Colleges and they are still continuing. The respondents have accepted the qualifications possessed by them as eligible and only then have selected and appointed them."
Mr. Cttatrath has relied on the observations of their Lordships of the Supreme Court in the order dated 25th October, 1991 in C. W. P. Nos. 4075-78 of 1982 (Rajendra Kumar and Ors. v. State of Punjab and Ors., C.W.P Nos. 4075-78 of 1992). While disposing of said writ petitions alongwith a number of other writ petitions their Lordships had directed that the petitioners in those cases be given one more opportunity for regular selection. It was noticed by their Lordships that the petitioners had been selected during the period 1979-1986. It was further noticed that they had been in service for a number of years as ad hoc Lecturers and could not be deprived of that benefit "since they are overaged". Such is not the situation here. Even if the averment made on behalf of the petitioners is accepted, it appears that they were appointed as temporary Lecturers after the advertisement issued on September 9, 1989. No details have been furnished. Further it has not been shown that the petitioners had even participated in similar process of selection prior to their appointments. They are not shown to have become overage Their claim has not been rejected on the ground that they are beyond the prescribed age limit. In fact their claim is not being considered because they do not possess one of the prescribed qualifications. There is nothing common between the petitioners and the lecturers whose case was being considered by their Lordships of the Supreme Court in Rajendra Kumar's case (supra). As such I find no ground for sustaining the contention raised on behalf of the petitioner.
17. In view of the above, I find no merit in these petitions, which are dismissed. In the circumstances of the case, the parties are left to bear their own costs.