Anita Pathania vs Himachal Pradesh University and Another

Kurian Joseph, C.J.—The writ petitions have been filed with the following prayers:

CWP No. 5825 of 2010:

(i). That the Respondents may very kindly be restrained from applying the qualifications notified by the UGC vide notification dated 28.6.2010 at Annexure P-8 for recruitment to the posts of Assistant Process (lecturer) in Education in H.P. University, Shimla and the recruitment be made on the basis of advertisement No. 1/2010, dated 9.4.2010 at Annexure P-7 and the Respondents may further be directed to consider the candidature of the Petitioner for recruitment to the post in question scheduled to be held on 23.9.2010.

(ii). that the Addendum dated 9.7.2010, whereby the Respondents have notified that all the appointments including for the post of Assistant Professor in Education as advertised at Annexure P-7 will be made as per revised/new guidelines/qualifications as notified by the UGC on 28.6.201, may also be quashed and set aside.

(iii).That the Respondents may very kindly be directed to produce the entire record pertaining to the case of the Petitioner for the kind perusal of this Hon''ble Court.

CWP No. 6370 of 2010:

(i) That the writ in the nature of certiorari may kindly be issued and Annexure P-11 addendum/corrigendum dated 9.7.2010 may be quashed and set aside and further the directions may be issued to the Respondent-University to make recruitment to the post of Assistant Professor/Lecturer in Education in the H.P. University, Shimla on the basis of advertisement No. 1/10 dated 9.4.2010 and as per the educational qualification as laid down by the above stated advertisement.

(ii) That a writ in the nature of certiorari may kindly be issued and the interviews as held for the post of Assistant Professor/Lecturer in Education in the Respondent-University in furtherance of Annexure P-9 for which the present Petitioners have illegally not been called, may be quashed and set aside with further directions to hold the interviews afresh by affording an opportunity to the present Petitioners to participate the same and as per the qualification laid down by issuing the original advertisement.

(iii) That a writ in the nature of certiorari may kindly be issued and the qualifications as laid down by Respondent No. 2 for M.Ed. Course vide its notification dated 28.6.2010 contained in Annexure P-10 may be quashed and set aside.

(iv) That a writ in the nature of mandamus kindly be issued to the Respondent directing the Respondent that M.Ed. Course and M.A. Education should be kept equivalent as has been earlier kept or in the alternative, a writ in the nature of mandamus may be issued directing the Respondents to prescribe such qualifications for M.Ed. Course after 2010 by keeping cut off date in the interest of justice.

The Petitioner in CWP No. 5825 of 2010 is an

applicant for appointment to the post of Assistant Professor in the Respondent-University. The Petitioner is M.Ed. with Ph.D. The recruitment notification Annexure P-7 in CWP No. 5825 of 2010 prescribes the qualification for appointment to the post of Assistant Professor which reads as under:

The qualifications for the above posts (except Medical Officer, and Information Officer for Bio-Technology) are the same as prescribed by the UGC and adopted by the University from time to time. However, a set of qualifications will be made available with the application form.

The eligibility of the candidates will be determined on the basis of qualifications acquired by them up to the last date fixed for receipt of applications.

The Registrar, University has filed reply affidavit in CWP No. 5825 of 2010, paras 1 & 2 whereof read as under:

That the notification dated 25.6.2010 issued by the UGC pertaining to minimum qualifications required for appointment of teachers and other academic staff in University and Colleges was adopted by the University on 9.07.2010, 30.7.2010, 18.8.2010 and 4.9.2010 copies of the same are being collectively appended along with as Annexure R-1/A. The aforesaid have been placed before the Academic Council of University in its meeting held on 27.9.2010. This is the first meeting of the Academic Council of the University post adoption of the UGC notification dated 28.6.2010, 30.7.2010, 18.8.2010 and 4.9.2010.

That detail of expenditure incurred on account of advertisement with respect to the present selection process is detailed in Annexure R-1/B. There exists no Master of Arts Education Course with in the State of Himachal Pradesh.

The moot question is that the University having advertised the post, wherein it is specifically stated that "the eligibility of the candidates will be determined on the basis of qualifications acquired by them up to the last date fixed for receipt of applications", whether it is open to the University to shift its stand and insist upon the UGC qualification instructions, which admittedly had been adopted subsequently. To make the factual position clearer, the last date prescribed for receipt of the applications is 12.5.2010. The UGC instructions came only on 28.6.2010. These were adopted from 9.7.2010 onwards only. The date of advertisement is 9.4.2010, therefore, as on the date of commencement of the selection process, that is, 9.4.2010 as on prescribed date of qualification, namely 12.5.2010, the Petitioner stood admittedly qualified. If that be so, on account of instructions issued subsequently by the UGC, the Petitioner cannot be disqualified.

Vehement contention of the learned Counsel appearing for the University is that the advertisement has clearly stated that the qualification will be as prescribed by the UGC. But the qualification of M.Ed. with Ph.D. is also prescribed by the UGC prior to 28.6.2010. Therefore, the qualification has to be seen as prescribed by the UGC as on the relevant date, namely, the date of notification, that is, 9.4.2010 and the last date prescribed therein, namely, for submission of applications, that is, 12.5.2010. On those two dates, the Petitioner possessed the qualification as prescribed by the UGC and approved by the University at the relevant time.

In this view of the matter, there is no justification in the stand taken by the University that as on the date of selection the UGC qualification was different.

Another contention advanced by the learned Counsel for the University is that the Hon''ble Apex Court in Madan Mohan Sharma and Another Vs. State of Rajasthan and Others, has held that the University can issue a fresh advertisement based on the new amended Rules which have been promulgated subsequent to the issuance of the advertisement. It is certainly open to initiate process afresh and it is a well settled preposition of law. Merely because a notification has been issued, it is not necessary that the selection should be completed in terms of that notification in case the cancellation of selection is not on account of ulterior motive. But here the moot question is that whether the University has initiated a fresh selection process on account of the amended qualifications. Admittedly the same has not been done. A lame attempt has been made by the University to look as if the selection which has already commenced could be made in terms of qualifications as amended by the University. We are afraid that the stand in the present factual matrix cannot be appreciated only for the reason that in the notification already issued by the University there is a specific prescription to the effect that the qualification is to be taken as on the last date of submission of the applications. We also may state the position that the qualification which the Petitioner possessed as on 12.5.2010 is also a qualification prescribed by the University. The amendment came only thereafter. It is a well settled preposition that the Rules of the game cannot be changed midway. The same has been held in Coal India Ltd. and Others Vs. Saroj Kumar Mishra, and in A. Manoharan and Others Vs. Union of India (UOI) and Others,

Therefore, the writ petitions are allowed to the extent directing the University to treat the Petitioners as eligible in terms of advertisement Annexure P-7.

With these observations, writ petitions stand disposed of, so also the pending application(s), if any.