Calcutta High Court (Appellete Side)
Shreyas Sinha vs The West Bengal National University Of ... on 23 December, 2019
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before :
The Hon'ble Justice SAHIDULLAH MUNSHI
And
The Hon'ble Justice SUBHASIS DASGUPTA
M.A.T. No. 1107 of 2019
(Assigned)
Shreyas Sinha
... Appellant/Petitioner
-Versus
The West Bengal National University of Juridical Sciences & Ors.
... Respondents
Mr. Sarathi Dasgupta
Mr. Imtiaz Ahmed
Mr. Md. Danish Taslim
Ms. Anamika Pandey
Mr. Sk. Saidullah
Ms. Arunima Mukherjee
Mr. Sibasish Banerjee
... for the appellant
Mr. Pratik Dhar
Mr. Pappu Adhikari
... for W.B.N.U.J.S.
Heard on : 12.12.2019 & 19.12.2019.
Judgment on : December 23, 2019
Sahidullah Munshi, J.: This appeal is directed against judgment and
order dated 22.07.2019 passed by one of the Hon'ble Judge of this
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Court dismissing the writ petition. The appellant filed writ petition,
inter alia, praying for an order from this Court commanding the
respondent/authorities, particularly, the University and its
authorities being respondent no.1, 2 and 3 to enforce and/or
implement the West Bengal National Juridical Science (Amendment)
Act, 2018 as notified in the Kolkata Gazette Extraordinary, on 25th
May, 2019 and a further direction upon the respondent to allow the
petitioner to avail the opportunity of occupying seats reserved for
candidates with State domicile at the proportion of 30% of the total
intake for the academic year 2019-20. In support of such prayers the
petitioner has made out a case that amendment came into force on
21st May, 2019 which is prior to the date of examination held under
the CLAT on 26th May, 2019 and results whereof was published on
14th June, 2019 and therefore, in view of the amendment providing for
compulsory reservation of seats for domicile CLAT aspirants would be
available for the petitioner. Resultantly, he should be given admission
in B.A/B.Sc./LLB Honours programme in the University in question.
Appellant has made out a further case that the provisional admission
has been granted in respect of nine domicile candidates out of 103
and such action of the respondent no.1 is contrary to the amendment
of 2018 which provides for compulsory reservation of at least 30% of
the total intake of seats under the University. Mr. Dasgupta, learned
advocate appearing for the appellant/petitioner submits that the
petitioner appeared in the Common Law Admission Test (hereinafter
referred to as 'CLAT') 2019 organized by the Consortium of the
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National Law Universities held on 26th May, 2019. Result of such
examination was declared on 14th June, 2019.
Mr. Dasgupta drawing our attention to page 33 of the affidavit-
in-reply in connection with CAN No. 7667 of 2019 filed in the appeal,
submits that when the advertisement for selection test was
announced certain instructions were issued by the University which
contained a clause namely; "Participating National Law Universities
reserve the right to change the total number of seats and break-up of
seats as per their policy before the final allotment. The reservation
policy is subject to change as decided by the concerned Government
from time to time." And also "The allotment of seats and the offer for
admission under CLAT-2019 shall be provisional and shall not create
any right of admission in favour of a candidate"
Mr. Dasgupta submits that since the respondent no. 5/ issued
notification for admission in the University through Common Law
Admission Test, 2019 giving details of the admission process and the
allocation of seats under various categories including the provisions
as indicated above, the ultimate allotment of seats for the
B.A/B.Sc./LLB honours course for the successful candidates in the
CLAT should be made taking into consideration of the 2018
Amendment which was published in the Kolkata Gazette on 21st May,
2019. He submits that since the amendment itself made a compulsory
reservation for seats for the students domicile in West Bengal and
since the amendment also provided for implementation indicating "It
4
shall come into force at once", the appellant should be given
opportunity of being admitted within 30% reservation within the fold
of amended provision. Certain dates are very important in this case
before we go further:
List of dates
05.01.2019 Notification issued inviting applications from
CLAT aspirants.
21.05.2019 West Bengal National Law University of Juridical
Science (amendment) Act, 2018 was published in
Kolkata Gazette Extra Ordinary.
26.05.2019 CLAT examination was held.
14.06.2019 Result of the CLAT examination 2019 was
published.
03.07.2019 Writ petition was affirmed.
According to the petitioner he secured 148 marks out of 200
marks and he was placed at 731 rank of all India Merit List. It has
been further canvassed in the writ petition that only nine candidates
out of 103 have been allowed to be admitted having domicile in West
Bengal. Therefore, petitioner contends that the amendment of 2018
notified on 21st May, 2019 has not been given effect to, contrary to the
object of the amendment.
The question now comes, for decision whether (1) the petitioner
having applied for CLAT Test 2019 on the basis of notification dated
5
05.01.2019 is entitled to get any benefit out of the Amended Law,
Prescribing 30% reservation for the candidates having domicile in
West Bengal and whether the petitioner's submission that only nine
candidates having domicile in West Bengal have been allowed to be
admitted pursuant to the notification, is the correct position or not.
(2) Whether the candidates aspiring for being admitted in
pursuance of CLAT notification dated 05.01.2019 can have any
manner of claim for the reservation made available in pursuance of
the amended provision, and, if so, since when the said amendment
should be operative for admission to the B.A/B.Sc./LLB honours
programme.
Without disputing that the scope of the writ petition is on a very
narrow compass where he submits that the amendment having
prescribed in itself its implementation instantaneously using the
words "it shall comes into force at once", the university is under
obligation to adhere to the reservation prescribed under the amended
provision even for the appellant/petitioner. He submits that since the
admission test was held on 26.05.2019 and result published on
16.06.2019 both dates having commenced after 21.05.2019, the
petitioner is entitled to get benefit of the amendment and that having
been denied his client has rightly filed this writ petition which the
learned Single Judge instead of allowing dismissed it.
In order to buttress his points of argument Mr. Dasgupta cited
the following decisions:-
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• Unreported judgment in Tej Prakash Pathak & Ors. -Vs.
- Rajasthan High Court and Ors.
• State of Haryana -Vs. - Subash Chander Marwaha and
Ors. reported in (1974) 3 SCC 220)
• N.T. Devin Katei Etc. -Vs.- Karnataka Public Service
Commission and Ors. reported in AIR 1990 1233;
• Shankarasan Dash -Vs. - Union of India reported in
AIR 1991 Sc 1612;
• State of Bihar -Vs. - Md. Kalimuddin reported in AIR
1696 SC 1145;
• P.T.R. Exports (Madras) Pvt. Ltd. -Vs. - Union Of India
reported in (1996) 5 SCC 268;
• Rajasthan Public Service Commission -Vs. - Chanan
Ram and Anr. reported in (1998) 4 SCC 202;
• Unreported judgment in Srikanta Halder -Vs. - The
State of West Bengal & Ors.;
• Managing Committee, Kadamtala High Madrasha -Vs.
- State of West Bengal & Ors. reported in (2019 ) SCC
Online Cal 381;
• State of U.P. & Ors. -Vs. - Arvind Kumar Srivastava &
Ors. reported in (2015) 1 SCC 347;
• Unreported judgment in the case of Asoke Kumar Das -
Vs. - Paschim Banga Gramin Bank and Ors.;
• Arti Sapru -Vs. - State of Jammu and Kashmir & Ors.
reported in AIR 1981 1009;
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• Punjab Engineering College Etc. -Vs. - Sanjay Gulati &
Ors. reported in 1983 SCR (2) 801;
• Unreported judgment in the case of Sunny Goel -Vs. -
Shri Ram College of Commerce & Ors.;
• Unreported judgment in the case of Akshita Singh -Vs. -
Lady Shri Ram College for Women & Ors.;
• Unreported judgment in the case of Dental Council of
India -Vs. Jewel Elizabeth Renji & Ors. &
• Unreported judgment in the case of Ms. Soumya Chopra
-Vs. University of Delhi & Ors.
The decisions so cited, however, do not answer the questions
formulated hereinbefore, rather those are distinguishable on facts.
The decisions which touches even remotely the questions framed
hereunder, has also been dealt with by us.
Tej Prakash Pathak & Ors. (supra) has been relied on by Mr.
Dasgupta to argue that 'any other legal right or obligation could be
created, altered, extinguished retrospectively by the Sovereign Law-
making bodies'.
Background fact of the case was that respondent High Court
before the Hon'ble Apex Court undertook the recruitment process for filling up some posts of translators by issuing a notification dated 17.09.2009. Twenty one candidates appeared for the examination of whom three candidates were declared successful by the first respondent.
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Under the Rajasthan High Court Staff Service Rules, 2002, "eligible candidates" are required to appear for a written test consisting of two papers of translation from English to Hindi and vice versa carrying 100 marks each followed by a personal interview for 50 marks.
Notable change was that after the examination was over, the Chief Justice ordered that the examination be treated as a competitive examination and only those candidates who secured a minimum of 75% marks be selected to fill up the posts in question. In view of the decision of the Chief Justice, only three candidates were found suitable for appointment. This is how the unsuccessful candidates were aggrieved by.
Three unsuccessful candidates challenged the said decision of the High Court by filing a writ petition which was dismissed and the appeal was filed in the Hon'ble Apex Court.
The appellants before the Hon'ble Apex Court challenged the selection process on the ground that the decision of the Chief Justice to select only those candidates who secured a minimum of 75% marks would amount to "changing the rules of the game after the game is played"- which is not permissible in law.
The Hon'ble Apex Court discussing the ratio in its two earlier decision on (i) Maharashtra State Road Transport Crpn -Vs. - Rajendra Bhimrao Mandve reported in (2001) 10 SCC 51 holding "...the rules of the game... the criteria for selection cannot be altered 9 by the authorities concerned in the middle or after the process of selection has commenced" and (ii) K. Manjusree -V- State of A.P reported in (2008) 3 SCC 512 holding ".... changing the rules of the game after the game was played... is clearly impermissible." The Apex Court referred the matter before a larger Bench for a decision. For our purpose we may set out Paragraph 15 of the decision:
"15: The petitioner Girija M.Priyadarsini, (whose name was in the first list of selected candidates, under the category SC- Woman ) has contended that minimum qualifying marks could not be applied for interviews. She further contended that even if resolution dated 30.11.2004 of the Administrative committee is construed as prescribing minimum marks for interview, such minimum marks would be applicable only in regard to open category, backward classes and scheduled Tribes, but not to Scheduled Castes. She submits that the resolution dated 30.11.2004 merely adopts what was prescribed earlier, that is what was resolved earlier on 24.7.2001 and 21.2.2002. She points out the said resolutions did not prescribe any minimum marks in respect of Scheduled Caste candidates; and that therefore, she was entitled to be selected, to the post reserved for Scheduled Caste (Woman)."
The above cited decision in Tej Prakash (supra) it is submitted at the bar that process has not yet been finalized. However, the earlier ruling relied and discussed clearly show a bar for the change of rule of game by giving prospectivity of the rules, unless legislation itself explicitly and clearly makes provision in the statute itself to give retrospectivity, which, with due respect to Mr. Dasgupta, is absent in 10 the present legislation namely West Bengal National University of Juridical Science (Amendment) Act, 2018, notified on 21.05.2019.
State of Haryana (supra) has no manner of application in this case as the decision decides the ratio based on a Principle whether authority has committed any illegality in not filling up the posts by appointing all the candidates. In this decision the Hon'ble Apex Court held "10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed ......"
In the above case the Hon'ble Apex Court allowed the appeal by the State which was allowed setting aside the Rule of Mandamus issued by the High Court favouring appointment to the writ petitioners in vacant posts of Subordinate Judges.
This decision has no manner of application here.
The decision in N.T. Devin Katte and others (supra) deals with an issue whether, if, recruitment Rules are amended retrospectively during pendency of selection, selection must be held in attendance with the amended Rules.
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If this ratio is applied in the case at hand argument advanced by Mr. Dasgupta gets negatived, clearly and unambiguously.
Decision in Shankarsan Dash (supra) has been relied on to favour the petitioner with the view that the subsequent amendment making reservation for a group of candidate should be made available to the candidates who applied for the CLAT even much prior to the amendment was made. This decision is against the appellant.
Applying the ratio decided in State of Haryana (supra) which, this court has already held to be not supportive of Appellant's contention, the Hon'ble Apex Court decided "We, therefore, reject the claim that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules." This decision does not at all help the appellant.
State of Bihar (supra) decided an issue where, under the statutory rule, the period of the life of select list had already expired, High Court's order to continue that select list, held illegal, and it does not support the petitioner's case at all.
P.T.R. Exports (Madras) PVT. LTD., and others (supra) decided an issue of grant of export license whether should be according to law prevailing at the time of grant seems to have no application in this case.
Rajasthan Public Service Commission (supra) decided the scope and applicability of amended conditions in a recruitment 12 process, where the Hon'ble Apex Court opined that it would be appropriate to hold that on account of the amendments to the recruitment rules, the earlier advertisement became infructuous. It has been held that the writ petition filed by the respondent was rightly rejected. This decision too does not come to the aid of the petitioner. Unreported decision of a Co-ordinate Bench of our Court in A.P.O. 223 of 2018, (Sri Kanta Halder -V- State of West Bengal & Ors.) in which one of us (Subhasis Dasgupta, J.) was a party, relying on the ratio of the Apex Court decision held that after initiation of selection process if new rules comes in place of earlier one, such selection process shall be regulated by the provision of the new Rules. The fact, in that case, was that the writ petitioner/appellant approached this Court on an earlier occasion seeking mandamus upon the statutory authority to complete the process of selection in Group-D Post as the same had been initiated at the behest of the school authority. The Court disposed of the writ petition directing the authority to consider the prayer of the petitioner in accordance with law prevalent at the relevant time. The authority decided and held that the petitioner did not acquire a vested right and the initiation of selection process must be done within four corners the West Bengal School Service Commission (Selection of Persons for appointment to the post of Non-teaching Staff) Rules, 2009. The contention of the appellant that the process of selection for such post should not only be initiated under the West Bengal Service Commission (Recruitment of Non-teaching Staff) Rules, 2005, but should also be completed 13 taking shelter thereunder irrespective of the fact that the said Rule has been subsequently repealed and/or superseded by the Rule, 2009. This ratio can at all not be made applicable to the fact situation of the case at hand.
Unreported decision in W.P. No.11254 (w) of 2010 by a Special Bench of our court gave answers to the reference on four questions of which the answer to the last question, holding that "The selection process would commence only after the advertisement asking candidates to apply for a particular post" is the only apposite answer to the case at hand, meaning thereby application of law dealing the petitioner's claim shall be reckoned from the date when he applied for CLAT that is the law existing on that day only but not any subsequent amendment.
It can't be held nor can it validly be recognized that an applicant appearing for CLAT would foresee any future happening about his success, selection and rank.
Decision in Arvind Kumar Srivastava & Ors. (supra) has been placed to consider discuss about the fate of 'Fence Sitters'. This decision has been placed by Mr. Dasgupta to convince the Court that in the event petitioner's contention is upheld and he is allowed a seat in the University, there cannot be any apprehension for others similarly, circimstanced to agitate before the Court for similar reliefs inasmuch as till date they are not in picture nor have they ventilated their grievance and therefore, they cannot be considered. However, 14 this decision has no relevancy in the present case inasmuch as we do not find anything justifiable to set aside the entire selection process to the benefit of the appellant/petitioner.
Next decision in Asoke Kumar Das (supra) by a Single Bench of this Court has been relied on to show that a person who is not vigilant he could not be heard in Court of law. This is a settled principle of law that a person cannot get any relief if he sleeps over his right. This has got no application in the present case for the reasons we have shown while considering the decision in Arvind Kumar Srivastava & Ors. (supra).
The decision in Ms. Arti Sapri & Ors. (supra) has been relied on to argue that if Court desires it can even direct for admission of the appellant/petitioner belatedly even though, it was argued by the University that 2nd Semester has already started. This judgment is also not apposite in the fact situation of the present case.
The decision in Punjab Engineering College (supra) has been cited to argue that the Court even can increase the number of seats which, however, we do not at all consider the ratio applied in the present situation and we are not inclined to legislate in any manner whatsoever by directing the authority to increase or reduce seats unlike the Hon'ble Apex court which can pass necessary orders under Article 142 of the Constitution and, in fact, the Hon'ble Supreme Court has done so in the decision cited by Mr. Dasgupta. 15
Next decisions in Shri Ram College of Commerce & Ors. (supra) and Akshita Singh (supra) are on the same line where Court directed creation of supplementary seats. We are not in a position to accept such contention.
The decision in Dental Council of India (supra) an unreported decision by the Supreme Court has been cited to argue that even a seat can be kept for the candidate is also not the subject matter of decision in the present case.
The decision in Ms. Soumya Chopra (supra) on the issue whether admission even can be allowed at the 2nd Semester is also not applicable in the present case which is totally different from the fact situation of the present case.
Mr. Dhar, learned senior advocate appearing for the University has drawn our attention to the General Information about the University which every aspiring candidate for CLAT is supposed to fit wherein the total number and allocation of seats across categories was mentioned (page 20 of the affidavit-in-opposition). Said seat matrix was available to CLAT Authorities and the authorities supplied the same to all aspiring candidates. From the said allocation of seats it appears that in the General Category there were 74 seats and 4 seats were reserved for West Bengal domicile on the day when notification for CLAT examination was published. He also points out that total number of seats for the University is 115 including 74 in the 16 General category which again includes reservation of 4 candidates having domicile in West Bengal.
Mr. Dhar learned Senior advocate appearing for the University drawing our attention to Annexure R-1 to the affidavit-in-opposition filed on behalf of the respondent nos. 1, 2 and 3 affirmed by one Tapas Bhattacharya in his capacity as Assistant Registrar (Academics) of West Bengal National University of Juridical Science submitted that admittedly 31st March, 2019 was the last date for application for CLAT as is evident from the document annexure R-1 at page 16 to the said affidavit-in-opposition. The examination for CLAT was held on 12th May, 2019. Mr. Dhar submits that once the last date has been declared, candidates applying for CLAT examination cannot seek any advantage beyond that date, the rules and Regulations prescribed for the examination for which application was invited and 31st March, 2019 being the closing date for submitting the application, amendment after 31.03.2019 cannot be availed of by the petitioner. He submits that even leniently if a view is taken that the amendment took place during the ongoing process and therefore, the candidate must be given the benefit of the amendment, can also not be argued in view of various decisions shown by Mr. Dhar.
Mr. Dhar learned advocate appearing for the University relied on the following decisions:
• State of Rajasthan -Vs. - R. Dayal & Ors. reported in (1997) 10 SCC 419;17
• Vijendra Kumar Verma -Vs. - Public Service Commission, Uttarakhand & Ors. reported in (2011) 1 SCC 150;
• Ranjan Kumar & Ors. -Vs. - State of Bihar & Ors.
reported in (2014) 16 SCC 187;
• Maharashtra State Road Transport Corpn. & Ors. -Vs.
- Rajendra Bhimrao Mandve & Ors. reported in (2001) 10 SCC 51;
• Y. V. Rangaiah & Ors. -Vs. - J. Sreenivasa Rao & Ors.
reported in (1983) 3 SCC 284;
• P. Mahendran & Ors. -Vs. - State of Karnataka & Ors.
reported in (1990) 1 SCC 411 & • Shiv Kumar Sharma -Vs. - Santosh Kumari reported in (2007) 8 SCC 600.
Relying on the decision in the State of R. Dayal & Ors. (supra) Mr. Dhar submitted that if anything occurred prior to the amendment of the rules that should be governed by the original rules and that is held by the Hon'ble Apex Court in the decision. Paragraph 8 of the decision is relevant for the present purpose and the same is set out below:
"8.Therefore, it is not in dispute and cannot be disputed that while selecting officers, minimum requisite qualifications and experience for promotion specified in the relevant column, 18 should be taken into consideration against vacancies existing as on 1st April of the year of selection. But since the Rules cane to be amended and the amendment became effective with immediate effect and clause (11-B) of Rule 24- A indicates that options have been given to the Government or the appointing Authority, as the case may be, to revise the select list as existing as per the law as on the date of the appointment or as may be directed by a competent court, selection is required to be made by the concerned DPC. An appointment made, after selection as per the procedure, to the vacancies existing prior to the amendment, is valid. But the question is: whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore? This Court has considered the similar question in paragraph 9 of the judgment above cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in accordance with the law existing as on the date when the vacancies arose. Undoubtedly, the selection came to be made prior to the amendment of the Rules in accordance with law then existing since the anticipated vacancies also must have been taken into consideration in the light of Rules 9 of the Rules. But after the amended Rules came into force, necessarily the amended Rules came into force, necessarily the amended Rules would be required to be applied for and given effect to.19
But, unfortunately, that has not been done in the present case. The two courses are open to the Government or the appointing authority, viz., either to make temporary promotions for the ensuing financial year until the DPC meets or in exercise of the power under Rule 24-A (11-B), they can revise the panel already prepared in accordance with the Rule and make appointments in accordance therewith."
Relying on Vijendra Kumar Verma (supra) Mr. Dhar submitted that it is settled law that those candidates who had taken part in the selection process noting fully well the procedure laid down therein are not entitled to question the same.
Relying on Ranjan Kumar (supra) Mr. Dhar has submitted that post selection process a candidate is estopped from questioning the selection process. He has relied on paragraph 14 of the judgment which is set out hereinbelow:
"14.The next submission which has been presented before us is that when the respondents had appeared in the interview knowing fully well the process, they could not have resiled later on or taken a somersault saying that the procedure as adopted by the department was vitiated. In this connection, it is apt to refer to the principle stated in Om Prakash Shukla v. Akhilesh Kumar Shukla and others[13], in the said case a three-Judge Bench, taking note of the fact that the petitioner in the writ petition had appeared for the examination without protest and filed the petition only after he realized that he would not succeed in the examination, held that the writ petitioner should not have been granted any relief by the High Court."20
Relying on Maharashtra State Road Transport Corpn. (supra) Mr. Dhar contended that it has been repeatedly held by the Hon'ble Supreme Court that criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection as commenced.
Relying on Y. V. Rangaiah (supra) Mr. Dhar submitted that it is the consistent view since this case was decided till date that vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules.
Relying on P. Mahendran (supra) Mr. Dhar reiterated the same principles which he has pointed out earlier. He submitted that if the rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. Paragraphs 5, 10 and 11 are set out for our purpose.
"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 Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there 21 is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.
10: In Y.V. Rangaiah v. J. Sreenivasa Rao, [1983] 3 SCC 284 the question was whether appointment could be made out of the list of approved candidates prepared by the appointing authority against the vacancies which had occurred prior to the amendment of the rules. The Andhra Pradesh Registration and Subordinate Service Rules made provision for the preparation of a list of approved candidates for appointment and promotion in the month of September every year. In 1976 the list of approved candidates was not prepared meanwhile in 1977 the original rules were amended providing for promotion or transfer to the category of LDCs for appointment as Sub- Registrars Grade II from amongst UDCs employed in the Registration and Stamp Department. A list of approved candidates for promotion was made in accordance with the amended Rules and appointments were made as a result of which some of the juniors in the category of LDCs were promoted as Sub- Registrars Grade II. The Andhra Pradesh Tribunal set aside the appointments and directed the State Government to 22 draw a fresh panel for the year 1976-77 in respect of vacancies arising during that year in accordance with the rules as they existed at that stage and to make appointments in the vacancies pertaining to that period on the basis of the panel so drawn. On appeal this Court held that the vacancies which occurred prior to the amended Rules would be governed by the old Rules and not by the amended Rules. The decision does not lay down anything which may be contrary to the view taken in Calton's case.
11: We would now consider the view taken by this Court in I.J. Divakar v. Government of Andhra Pradesh, [1982] 3 SCC 34 1 as the Tribunal has placed strong reliance on the observations made in that decision in setting aside the selection made by the Public Service Commission. It is necessary to ascertain the facts involved in Divakar's case. The Andhra Pradesh Public Service Commission invited applications for filling posts of Junior Engineers. In response to the advertisement several candidates applied for the said post and appeared at the viva voce test. While the Commission was in process of finalising the select list, the Government of Andhra Pradesh issued a Government Order under the proviso to Article 320(3) of the Constitution excluding the posts of Junior Engineers from the purview of the Public Service Commission. The Government regularised the services of all those who were appointed by direct recruitment to the post of ad-hoc Junior Engineers and were continuing in service on August 9, 1979 without subjecting them to any test written or oral. The candidates who had applied in response to the advertisement issued by the Commission challenged validity of the Government Order excluding the post of Junior Engineers from the purview of the Commission and also the validity of the decision by the Government to regularise the services of temporary 23 employees. Before this Court the Government's power of framing regulations excluding any post from the purview of the Commission under the proviso to Article 320(3) was conceded. It was, however, urged that since the advertisement had been issued by the Commission inviting applications for the posts of Junior Engineer and as the Commission was in process of selecting candidates the power under the proviso to Clause (3) of Article 320 of the Constitution could not be exercised. This Court rejected the contention with the following observations:
"The only contention urged was that at the time when the advertisement was issued the post of Junior Engineer was within the purview of the Commission and even if at a later date the post was withdrawn from the purview of the Commission it could not have any retrospective effect. There is no merit in this contention and we are broadly in agreement with the view of the Tribunal that inviting the applications for a post does not by itself create any right to the post in the candidate who in response to the advertisement makes an application. He only offers himself to be considered for the post. His application only makes him eligible for being considered for the post. It does not create any right in the candidate to the post."
After making the aforesaid observations the Court further held that the relevant service Rules conferred power on the Government to fill emergently the vacancies to the post borne in the cadre of service otherwise than in accordance with the rules and therefore the Government had power to regularise temporary appointments made without the consultation of the Public Service Commission. Even after upholding the Government order, the Court directed the Commission to consider the case of all those candidates who had applied 24 for the post of Junior Engineers in response to the advertisement issued by the Commission and to finalise the select list on the basis of viva voce test and to forward the same to the Government. The Court further directed the Government to make appointments from the select list before any outsider was appointed to the post of Junior Engineers. Thus, the observations made by this Court as quoted earlier were made in the special facts and circumstances of the case, which do not apply to the facts of the instant case. In Divakar's case since the jurisdiction of the Public Service Commission had been denuded by the Government in exercise of its constitutional power the Commission had no jurisdiction to conduct selection or prepare select list. In this background the Court made observations that a candidate merely by making applications does not acquire any right to the post. 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 pre- pared by the Commission."
25
Relying on Shiv Kumar Sharma (supra) Mr. Dhar has drawn our attention to only paragraph 22 which says "law in this behalf is absolutely clear. What cannot be done directly cannot be done indirectly".
We have heard the parties at length. Perused the materials placed before us and we have also meticulously examined the judgment under challenge. As noted earlier the only contention of the appellant before us is that the Hon'ble Single Judge has failed to consider that since the result of the CLAT was not published or since it was published after the amendment in question, the appellant is entitled to get benefit out of the said amendment meaning thereby, the appellant's rank should stand reduced from 731 to a considerable rank where taking advantage of the West Bengal Domicile quota to the extent of 30% he would be selected as a successful candidate for admission to the university in question. The Hon'ble Single Judge in its decision has consciously considered the submission which is now advanced before us that the results were declared on 14th June, 2019 whereas the notification with regard to the amended law was made on 21st May, 2019 but even then the petitioner cannot get benefit of the said amendment. Hon'ble Single Judge has rightly held that the amendment in question is 'Prospective' in nature. The Hon'ble Single Judge has rightly considered that the total number of seats in the said university in the LLB Programme is 115 and all the seats under the West Bengal Domicile Category had already been filled up and further that the rank of the last candidate who would be admitted 26 under General (A1 unreserved) category is 262 whereas the petitioner ranked at 731. It has also been rightly held by the Hon'ble Single Judge that if the amended provisions is to be adhered to for the CLAT examination which was attended by the petitioner and if 30% reservation is considered meaning thereby 34 seats are to be taken from the unreserved candidates then the admission process pertaining to CLAT, 2019 would disturb the entire admission process. The candidates who have already exercised option above all have been allotted seats in different universities all over the country would be seriously prejudiced for no fault on their part. The Hon'ble Single Judge has rightly held that "the adoption of such a procedure would be having the effect of alteration of the modalities of the admission process after the same have commenced." We do not find any wrong in the finding arrived at by the Hon'ble Single Judge and we are also ad idem with the findings arrived at by the Hon'ble Single Judge.
At the initial stage Mr. Dasgupta and at the later stage Mr. Imtiaz Ahmed at the reply submitted before us that nine candidates were allowed to be selected under the West Bengal Domicile quota which is factually wrong and could not be substantiated by any documentary evidence. However, Mr. Dhar appearing for the University submitted that according to the existing rules when the petitioner applied for CLAT Examination total seat matrix was 115 including 74 in the General Category and 4 in the reserved category. This reservation was then available for the candidates having West Bengal Domicile. Only those four seats were allowed to the candidates 27 having domicile in West Bengal and it was not nine candidates as incorrectly submitted by the learned advocate for the appellant.
After Mr. Dasgupta has concluded his submission in reply Mr. Imtiaz Ahmed sought for our leave to rely on two decisions:
1) Coal India Ltd. & Ors. -Vs. - Saroj Kumar Mishra reported in (2007) 9 SCC 625 &
2) Un-reported judgment in Anupal Singh & Ors. - Vs. -
State of UP through Principal Secretary, Personnel Department & Ors.
We have considered the decisions but those are not applicable in the fact situation of the present case.
In the decision in Coal India Ltd. (supra) respondents were denied promotion but their juniors were promoted on 31.08.1999. They filed writ petition in the High Court. During pendency of the writ petition charge-sheets were issued to them in June, 2002. The High Court held that respondents were wrongly denied promotion. Challenging this decision of the High Court Special Leave petition was filed before the Hon'ble Supreme Court. High Court decision was upheld and the special leave petition has been dismissed by the Hon'ble Supreme Court. This decision however, has been placed before this Court to argue that it is no ground that if the selection is set aside there will be a floodgate of litigation as argued by Mr. Dhar appearing for the University/respondent. Since we do not agree that 28 amended rules will have a retrospective effect in the present case, question of setting aside the panel of selected candidates does not at all arise and selection so made by the University cannot be disturbed under no law.
The decision in Anupal Singh (supra) has been relied on by Mr. Imtiaz Ahmed is on a different context. The decision was rendered in a case where it was brought to the notice of the State Government that there was wrongful calculation of category wise vacancies in the earlier requisition and therefore, the earlier requisition was required to be revised. Based upon the above revised requisition on 15.09.2014 U.P Public Service Commission declared the result of the written examination wherein the appellants before the Supreme Court as well as the private respondents were declared successful. It was contended that change in the number of vacancies for different categories is illegal and same amounts to changing the rules of the game in the middle of the selection process. On this contention High Court allowed the writ petitions by holding that subsequent to the declaration of the result of written examination, the entire selection is vitiated and as such the same cannot be sustained. Reliance was placed upon a decision in Union of India and Others -Vs. - O. Chakradhar reported in (2002) 3 SCC 146.
Ultimately, the Hon'ble Apex Court set aside the impugned judgment of the High Court and allowed the appeals. The decision not 29 only does not help the appellants but the ratio decided therein seriously disputes the stand taken by the appellant before this Court.
The decisions referred to by Mr. Dhar in Shib Kumar (supra) reported in (1990) 1 SCC 411 is a larger Bench decision and shows that the amendment cannot have any retrospective effect unless such retrospectivity is expressly mentioned in the law itself.
It is not a case that the university has not applied its mind as to whether or not the petitioner is entitled to get any benefit out of the amendment which was notified on 21st May, 2019. Record reveals that the instruction issued by the authority contained in the instructions (annexure P-2) of the reply filed by the petitioner to the effect "participating of National Law University reserved the right to change the total number of seats and break-up of seats as per their policy before the final allotment. The reservation policy is subject to change as decided by the concerned Government from time to time" or "the allotment of seats and the offer for admission under CLAT, 2019 shall be provisional and shall not create any right of admission in favour of a candidate." These clauses in the instructions, is indicative of the discretion to be used by the university or the authority after the result is published. And the candidate appearing for CLAT cannot claim as a matter of right that because of these provisions, he is entitled to get benefit of the amended law if such provision of amended law is not otherwise applicable to his case. So far, this argument as advanced by Mr. Dasgupta is concerned, we are of the conscious view that judicial 30 review on this aspect whether the decision of the authority is final or tentative is absolutely within its domain and Court's power to judicial review is very limited save and except to make a scrutiny whether such discretion used by the university has been made judiciously and not arbitrarily, whimsically and not because of any colourful exercise of power.
Rule or any other subordinate legislation, will not be held to be retrospective merely because it draws upon past events for its future operation e.g. a service rule which alters the age of superannuation of all public servants, whether recruited prior to or after the making of the rule, but which operates prospectively is not for that reason retrospective. A power to bring into force an Act by notification is not retrospectively exercised if the Act is brought into force from a date posterior to its passing but which is anterior to the date of the notification by which it is brought into force.
On the issue of retrospective operation of law we know that the Union Parliament and State Legislatures have plenary powers of legislation within the fields assigned to them and subject to certain constitutional and judicially recognised restrictions can legislate prospectively as well as retrospectively. Competence to make a law for a past period on a subject depends upon present competence to legislate on that subject. By retrospective legislation, the Legislature may make a law which is operative for a limited period prior to the date of its coming into force and is not operative either on that date or 31 in future. The power to make retrospective legislation enables the Legislature to obliterate an amending Act completely and restore the law as it existed before the amending Act.
When statutes deal with substantive rights it is cardinal principle of construction that every statue is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. A new law ought to regulate what is to follow, not the past. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective.
As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. In other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by Parliament.
The test whether the amendment is to operate retrospectively or prospectively or whether applicable in a pending matter - is to be judged on the basis of the words and expression " (2) It shall come into force at once." (emphasis supplied). It means the effect shall not 32 be retrospective but prospective. The object of "At once" being used for preventing students domiciled in Bengal to migrate to other states. Because this CLAT is an All India basis exam. If the students securing notable all India rank migrate to other State it may frustrate the very object of introducing the "Reservation". If we apply the words in Sub- clause (3) which says, "The University shall compulsorily make provision for reservation of seats for the students domiciled in the State of West Bengal to the Extent of at least thirty percent of the total intake in the University". It manifestly makes it clear that the reservation provided for candidates to apply for CLAT for the session coming later than the law came into force.
The real issue in each case is as to the dominant intention of the legislation to be covered from language used, the object indicated the nature of right affected, and the circumstances under which the statute is passed.
We are satisfied that test of reasonableness and fairness has not been compromised in any manner by the University.
Therefore, we cannot hold that any illegality has been committed by the University in not allowing the appellant/petitioner to get admission within the reserved category under the amended law. Appeal, therefore, fails and the same is dismissed.
There will be, however, no order as to costs.
33Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.
I agree.
(Subhasis Dasgupta, J.) (Sahidullah Munshi, J.)