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Judgment
A.B. Chaudhari, J.—Heard. Rule. Rule returnable forthwith. Heard finally by consent of learned Counsel for the rival parties.
All these writ petitions are being disposed of by this common judgment and order in view of the common question of law involved therein. The question of law that falls for consideration is as under:
Whether introduction of NET/SLET as eligibility condition for recruitment and appointment of Lecturers in Universities/Colleges/Institutions as per Gazette Notification dated 11.7.2009 prescribed by University Grants Commission (UGC) will affect the selections and appointments made in accordance with the approved advertisements/notifications published before 11.7.2009 when the eligibility condition was not compulsory NET/SLET?
For convenience, following details in the form of chart are reproduced, which are relevant for the purpose of decision in these writ petitions.
In all the above writ petitions from serial No. 1 to 25, advertisements were approved by the respondent - University before their publication on the respective dates mentioned in the above chart.
In Writ Petition No. 2084/2010 i.e. at serial No. 26 in the above chart, advertisement was firstly published on 14.5.2009 after its approval from the University for the post indicated in the said advertisement. However, since qualified candidate was not available, fresh advertisement was issued on 20.7.2009 i.e. after cut-off date, namely, 11.7.2009. Fact, however, remains that the second advertisement was issued pursuant to the said approval of the University, which related to the first advertisement dated 14.5.2009. In our opinion, though second advertisement is dated 20.7.2009, the same relates back to the first advertisement dated 14.5.2009, and therefore, will make no difference in comparison of this writ petition with the other writ petitions in substance.
It is not in dispute that before 11.7.2009 i.e. the date on which the University Grants Commission prescribed compulsory NET/SLET qualification for the recruitment and appointment of lecturers in Universities/Colleges/Institutions, there was exemption to the candidates possessing M.Phil. degree by virtue of UGC (Minimum Qualifications required for the appointment and Career Advancement of teachers in Universities and Institutions affiliated to it) (2nd Amendment), Regulation 2006 dated 14.6.2006 (hereinafter referred to as "second amendment'').
In other words, even if the candidate did not possess NET/SLET qualification, if he possessed M.Phil. degree, he was eligible to apply and for getting selected for teaching under graduate level students. In other words, all petitioners in these writ petitions, who possess the said M.Phil. qualification though they do not possess NET/SLET qualification, were eligible for being selected and appointed prior to 11.7.2009. Perusal of the above chart shows that respondent - University had approved all the advertisements, which were ultimately published as indicated in the aforesaid chart before 11.7.2009, considering the exemption regarding NET/SLET as aforesaid and treating M.Phil. as eligibility qualification. In other words, on the date of advertisements/notifications published, M.Phil. was treated as eligibility qualification, which was accordingly prescribed by the University Grants Commission. However, University Grants Commission changed eligibility qualification by bringing the same into force with effect from the date of publication in the gazette of India and that date is 11.7.2009. The change that is made from the said date, namely, 11.7.2009 is as under:
NET/SLET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/Colleges/Institutions.
Provided, however, that candidates, who are or have been awarded Ph.D. Degree in compliance of the "University Grants Commission (minimum standards and procedure for award of Ph.D. Degree), Regulation 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions.
In our opinion, in the light of the above facts, the question that has been framed by us can be answered in accordance with the pronouncement of law made by the Hon''ble Apex Court in various decisions.
In the case of Ashok Kumar Sharma and Others Vs. Chander Shekhar and Another, the three Judge Bench considered the issue and held in paragraph No. 6 thus:
...The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan....
In the case of Gopal Krushna Rath Vs. M.A.A. Baig (Dead) by Lrs. and Others, the Hon''ble Supreme Court in paragraph Nos. 6 and 7 held thus:
When the selection process has actually commenced and the last date for inviting applications is over, any subsequent change in the requirements regarding qualifications by the University Grants Commission will not affect the process of selection which has already commenced. Otherwise it would involve issuing a fresh advertisement with the new qualifications. In the case of P. Mahendran v. State of Karnataka this Court has observed (SCC p. 416, para 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.
The Court further observed that:
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.
In the present case, therefore, the appellant possessed the necessary qualifications as advertised on the last date of receiving applications. These qualifications were in accordance with the Rules/guidelines then in force. There is also no doubt that the appellant obtained higher marks than the original Respondent 1 at the selection. There is no challenge to the process of selection, nor is there any allegation of mala fides in the process of selection.
In the case of Madan Mohan Sharma and Another Vs. State of Rajasthan and Others, the Hon''ble Supreme Court in paragraph Nos. 11 and 12 held thus:
...Once the advertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which were laid down and it cannot be on the basis of the criteria which has been made subsequently.
As per the circular which was obtaining at the time when the advertisement was issued dated 24-7-1995, the criteria for selection to the post of teacher Grade III was Secondary Examination though this was changed during the pendency of the advertisement. Subsequent amendment of the Rules which was prospective cannot be made retrospective so as to make the selection on the basis of the Rules which were subsequently amended. If this was to be done, then the only course open was to recall Advertisement No. 1 of 1996 and to issue fresh advertisement according to the Rules which had come into force....
From the above, it is clear that the subsequent insertion of compulsory NET/SLET qualification by gazette notification dated 11.7.2009 made by University Grants Commission will have to be held to be prospective in its operation since in all these cases the advertisements as per earlier eligibility qualifications were duly approved and sanctioned by the University and were also published well before the cut-off date, namely, 11.7.2009 and at any rate before the last date of application that was to be made pursuant to these advertisements. Last date of application as per advertisements is a crucial date in accordance with the law laid down by the Hon''ble Supreme Court.
For all the above reasons, therefore, we answer the question framed by us holding that the selections and appointments made pursuant to the advertisements published in these writ petitions prior to 11.07.2009 shall not be affected by introduction of compulsory NET/SLET eligibility criteria as the said gazette notification dated 11.07.2009 is prospective in nature. In the result, we make the following order.
ORDER
(i) Rule in all these writ petitions is made absolute.
(ii) It is declared that the petitioners in all these writ petitions are governed by the University Grants Commission by virtue of UGC (Minimum Qualifications required for the appointment and Career Advancement of teachers in Universities and Institutions affiliated to it) (2nd Amendment), Regulation 2006 dated 14.6.2006 and are qualified and eligible as being appointed as Lecturers.
(iii) Respondent - University consequently is directed to consider the issue of approval to the appointments of the petitioners afresh in the light of this judgment.