Dr. Anita Pathania vs Himachal Pradesh University Shimla

Justice Rajiv Sharma, Judge

An advertisement was issued by the respondent - University for filling up 5 posts of Lecturers in the International Centre for Distance Education and Open Learning (ICDOEL) vide advertisement No. 2/2008. Last date of receipt of applications was 15.1.2009. Petitioner submitted an application for considering her candidature for the post of Lecturer. According to advertisement No. 2 of 2008, qualifications prescribed for the posts were the same as prescribed by the University Grants Commission and adopted by the respondent-University from time to time. The eligibility of the candidates was to be determined on the basis of qualifications acquired by them upto the last date fixed for receipt of applications, i.e. 15.1.2009. Thereafter, respondent-University issued fresh advertisement No. 1/2010 on 9.4.2010 for the posts of Assistant Professors in the ICDOEL. Last date of receipt of applications was 12.5.2010. Qualifications for the post were the same as prescribed by the University Grants Commission and adopted by the respondent-University from time to time. The eligibility of the candidates was to be determined on the basis of qualifications acquired by them upto the last date fixed for receipt of applications. Petitioner apprehended that her candidature may not be considered by the respondent-University, thus, she approached this Court by way of CWP No. 5825/2010. An interim order was passed by the Division Bench of this Court on 21.9.2010. Petitioner appeared in the interview on 23.9.2010. Respondent-University has issued advertisement No. 3/2011 whereby the applications were invited for filling up nine posts of Assistant Professors by 25.11.2011. The qualifications for these posts were also the same as prescribed by the U.G.C. and adopted by the respondent-University from time to time. The eligibility of the candidates is to be determined on the basis of qualifications alongwith published work acquired by them upto the last date fixed for receipt of applications. CWP No. 6479/2011-G was filed by Surender Sharma and others seeking direction to the respondents to place the recommendations of the Selection Committee before the Executive Council and to make appointments. CWP No. 6479/2011-G was allowed by this Court on 4.1.2011 whereby respondent-University was directed to place the recommendations of the Selection Committee dated 23/24.9.2010 before the Executive Council. Respondent-University was further directed to fill up the remaining unfilled posts within a period of three months from the date of passing of the judgment. In sequel to the judgment rendered by this Court in CWP No. 6479/2011-G, four incumbents, namely, S/Sh. Surender Sharma, Ajay Kumar Attri, Kuldeep Singh Katoch and Vishal Sood have been appointed as Assistant Professors in ICDOEL. Respondent-University preferred SLP (Civil) No. 12122/2012 before the Hon''ble Supreme Court. The SLP (Civil) No. 12122/2012 was dismissed by the Hon''ble Supreme Court on 23.4.2012 and the following orders were passed:

The SLP is dismissed being wholly meritless and misconceived.

The petitioner is directed to implement the directions given by the High Court within four weeks from today and submit a report in the Registry of the High Court. Thereafter, the matter be listed before the concerned Bench. If it is found that the petitioner has not complied with the directions given in the impugned order, then the High Court shall initiate contempt proceedings against the concerned officers of the University.

Present petition has been filed seeking directions to the respondent-University to declare the result of the petitioner on the basis of interview held on 23.9.2010 according to the old norms prescribed by the respondent-University.

Mr. Bhuvnesh Sharma has vehemently argued that the case of the petitioner was required to be considered by the respondent-University according to the un-amended norms for the post of Assistant Professor in ICDEOL pursuant to the interview held on 23.9.2010 and thereafter the result was to be declared. He has placed strong reliance on the judgment passed by the Division Bench in CWP No. 5825/2010.

Mr. B.C. Negi has strenuously argued that result in sequel to interview held on 23.9.2010 was declared and four incumbents have already been appointed. He then argued that case of the petitioner was also considered strictly in accordance with law but the Selection Committee has not recommended the name of the petitioner for the post in question. He further argued that the petition is bad for non-joinder of necessary parties since the petitioner has not impleded the selected candidates.

I have heard the learned counsel for the parties and have perused the pleadings and judgments rendered in CWP No. 5825/2010 decided on 28.10.2010 and CWP No. 6467/2011-G decided on 4.1.2011.

Petitioner submitted an application in sequel to advertisement No. 2/2008 for the post of Lecturers/Assistant Professors in the ICDEOL. Respondent-University issued fresh advertisement, as noticed above, bearing No. 1/2010 on 9.4.2010. Petitioner was permitted by this Court to be interviewed on 23.9.2010 vide interim order dated 21.9.2010. Suitability of the petitioner has been adjudged by the duly constituted Selection Committee as per the norms prescribed by the respondent-University. Pursuant to the judgment of this Court rendered in CWP No. 6467/2011�G, four incumbents have already been appointed and the judgment has been upheld by the Hon''ble Supreme Court.

According to the Ordinances framed by the respondent-University, the minimum qualification for appointment of Lecturer/Assistant Professor is the same as prescribed by the University Grants Commission from time to time and notified after adoption by the University. The explanation whereof provided that for determining ''Good Academic Record'' the following criterion may be adopted:

The average of 50% marks at the two lower examinations mean ''Good Academic Record'' for the purpose of recruitment of teachers.

According to Statute 17, every Selection Committee shall consist of Vice-Chancellor, two experts nominated by the Chancellor, the Chairman of the Department concerned if he is a Professor, for Lecturers post, the Chairman of the Department concerned, if he is not below the rank of a Reader, one person not in the employment of the University, nominated by the Vice-Chancellor for his special knowledge of or interest in the subject concern and for the post of teachers in the Directorate of Correspondence Courses and the University Evening College, the Director and the Principal respectively are also be associated as members of the Selection Committee.

University Grants Commission has issued Regulations under clause (e) and (g) of sub-section (1) of section 26 of University Grants Commission Act, 1956 laying down the minimum qualifications for appointment of teachers and other academic staff in Universities and colleges and measures for the maintenance of standards in higher education. These Regulations were published in the Gazette of India on 28.6.2010. According to the norms prescribed and adopted by the University, the Selection Committee for the post of Assistant Professor in the University shall have the following composition:

The Vice Chancellor or Acting Vice Chancellor to be the Chairperson of the Selection Committee.

Three experts in the concerned subject nominated by the Vice-Chancellor or Acting Vice Chancellor out of the panel of names approved by the relevant statutory body of the university concerned.

Dean of the concerned Faculty, wherever applicable.

Head/Chairperson of Department/School.

An academician nominated by the Visitor/Chancellor, wherever applicable.

An academician representing SC/ST/OBC Minority/ Women/Differently-abled categories to be nominated by the Vice Chancellor or Acting Vice Chancellor, if any of the candidates representing these categories is the applicant and if any of the above members of the selection committee do not belong to that category.

The minimum qualifications prescribed for the post of Assistant Professor are also regulated under these Regulations notified on 28.6.2010. According to Regulation 4.4.0, Assistant Professor to be appointed should possess good academic record as defined by the concerned University with at least 55% marks or an equivalent grade in a point scale wherever grading system is followed at the Master''s Degree level in a relevant subject from an Indian University or an equivalent degree from an accredited foreign university. The candidate must have cleared the National Eligibility Test conducted by the University Grants Commission, CSIR or similar test accredited by the U.G.C. like SLET/SET. It is further stipulated therein that the candidates, who are awarded Ph.D. degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009 shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions.

Respondent-University has framed a policy and programme for recruitment of Assistant Professor in the respondent-University vide Annexure PR-4. According to para 2 of Annexure PR-4, selection is to be made from amongst the eligible candidates on the basis of a marks system having a total of 100 marks and these marks are to be distributed between two components as under:

The Scholastic Attainment Component: 80 marks.

The Interview Component: 20 marks.

It is further stipulated therein that there has to be a tally sheet for each eligible candidate wherein the scholastic attainments of the candidates are determined according to the given criteria. 20 marks for the interview shall be distributed as follows:

Marks for competence in subject: 10

Marks for communication ability: 10

According to para 6 of the policy, the marks obtained by each candidate in the tally sheet as well in the interview are to be added and the total thus obtained is to determine the candidate''s rank on the merit list for appointment. The candidate is required to obtain at least 10 marks in the interview to be placed on the final merit list. These are the parameters according to which selection for the post of Assistant Professor has to be made.

The University Grants Commission has issued these norms for the maintenance of standard in the higher education. Initially, as per University Statutes, the Selection Committee was restricted, however, now the same as per the Regulations notified on 28.6.2010, has been made wider to enable the Selection Committee constituted to adjudicate the suitability of the candidate for the post of Assistant Professor. The Teachers who are to be appointed as Assistant Professor must have scholastic attainment component. There is interview component and 10 marks are to be awarded for competence in subject and 10 marks for communication ability. This is the scientific method to evaluate the suitability of the candidate for the post of Assistant Professor.

Petitioner cannot persist that she was to be interviewed by the Selection Committee, as per old norms. Petitioner has only right to be considered for the post of Assistant Professor. She has been considered by the Selection Committee, but the Committee has not found her suitable for the post in question.

According to the latest U.G.C. norms, now instead of two experts, there are three experts in the concerned subject to be nominated by the Vice Chancellor or Acting Vice-Chancellor out of the panel of names approved by the relevant statutory body of the University. Petitioner has not actuated any mala fides to the members of the Selection Committee, which has interviewed the petitioner on 23.9.2010. Respondent-University has complied with the judgment dated 28.10.2010 rendered in CWP No. 5825/2010 by permitting the petitioner to be interviewed. The judgment rendered by this Court in CWP No. 5825/2010 was only confined to declare the petitioner eligible in terms of the advertisement. The merit of the petitioner was to be adjudged vis-�-vis other candidates, who had applied alongwith other the petitioner as per University Grant Commission''s norms.

In The The State of Haryana Vs. Subash Chander Marwaha and Others, the issue before the Hon''ble Supreme Court was whether the Commission or the State or the High Court can depart from the order of merit given in the list. In this case, a competitive examination was held by the Haryana Public Service Commission for recruitment of candidates for 15 vacancies in the Haryana Civil Service (Judicial Branch). A list of 40 candidates who obtained 45% or more marks in the examination was published in the Government Gazette. Seven appointments were made by the State Government in the serial order of list according to merit. The Punjab and Haryana High Court informed the State Government that the candidates getting less than 55% of marks in the examination should not be appointed as Subordinate Judges in the interest of maintaining high standards of competence in judicial service. This decision was challenged by the selected candidates before the Punjab and Haryana High Court. The Punjab and Haryana High Court issued a mandamus to the State of Haryana to select the respondents accordingly. The decision was assailed by the State of Haryana before the Hon''ble Supreme Court. Their Lordships have upheld the decision to recruit only those candidates, who have secured more than 55% marks, even though the names of 40 candidates who obtained 45% or more marks were published in the Government Gazette. Their Lordships have held as under:

On February 3, 1970 an advertisement was published in the Government Gazette to the effect that the Haryana Public Service Commission will hold an examination for recruitment of candidates for 15 vacancies in the Haryana Civil Service (Judicial Branch). In response to the advertisement a number of candidates appeared for the examination held in November, 1970. The result of the competitive examination was declared and published in the Haryana Government Gazette on April 6, 1971. It was a list of 40 candidates who obtained 45% or more marks in the examination. The State Government which is the appointing authority made seven appointments in the serial order of the list according to merit. Respondents who ranked 8, 9 and 13 respectively in that list did not get an order of appointment although there were vacancies. The reason for not making the appointments was that in the view of the State Government, which was the same as that of the High Court previously intimated to the State Government, candidates getting less than 55% of marks in the examination should not be appointed as Subordinate Judges in the interest of maintaining high-standards of competence in Judicial Service. Respondents 1 to 3 who expected to be appointed filed the petition claiming that since, there were 15 vacancies and they had the necessary qualifications for appointment the State Government was not entitled to pick and choose only seven out of them for appointment, because to do so would be to prescribe a standard which was not contemplated by the rules but was against them. The appellant, on the other hand, contended that the rules did not oblige them to fill in all the vacancies and it was open to them (the Government) to appoint the first seven candidates front the list in the interest of maintaining high-standards. There was no question of picking and choosing. The rules did not prevent the State from deciding at the time of selection from the list, the minimum number of marks that a selected candidate should score for the purpose of an appointment. The High Court agreed with the contention of the State, that merely because the advertisement was for filling 15 vacancies the first 15 candidates in the list had no right to be appointed in the posts but held that as long as there are requisite number of vacancies unfilled and qualified candidates were available, those candidates had a legal right to be selected under rule 10........ of Part C of the Rules. In the view of the High Court the State Government was not entitled to impose a new standard of 55% of marks for selection as that was against the rule which provided for a minimum of 45 %.

It is contended on behalf of the appellant that the above finding against the State was erroneous. The submission was that under the rules the minimum of 45 % was an element to be considered for the eligibility of a candidate for selection and that while making the actual appointment by selection the State Government, in the interest of maintaining high-standards of judicial competence, were not prevented from fixing a minimum standard of a score of 55% marks, especially, as that was the view of the High Court also previously intimated to them. In our view that submission is correct.

In the present case it appears that about 40 candidates had passed the examination with the minimum score of 45 per cent. Their names were published in the Government Gazette as required by Rule 10(1) already referred to. It is not disputed that the mere entry in this list of the name of a candidate does not give him the right to be appointed. The advertisement that there are 15 vacancies to be filled does not also give him a right to be appointed. It may happen that the Government for financial or other administrative reasons may not fill up any vacancies. In such a case the candidates, even the first in the list, will not have a right to be appointed. The list is merely to help the State Government in making the appointments showing which candidates have the minimum qualifications under the Rules. The stage for selection for appointment comes thereafter, and it is not disputed that under the Constitution it is the State Government alone which can make the appointments. The High Court does not come into the picture for recommending any particular candidates. After the State, Government have taken a decision as to which of the candidates in accordance with the list should be appointed, the list of selected candidates for appointment is forwarded to the High Court and the High Court then will have to enter such candidates on a Register maintained by it. When vacancies are to be filled the High Court will send in the names of the candidates in accordance with the select list and in the order they have been placed in that list for appointment in the vacancies. The High Court, therefore, plays no part except to suggest to the Government who in accordance with the select list is to be appointed in a particular vacancy. It appears that in the present case the Public Service Commission had sent up the rolls of the first 15 candidates because the Commission had been informed that there are 15 vacancies. The High Court also in its routine course had sent up the first 15 names to the Government for appointment. Thereupon the Chief Secretary to Government, Haryana wrote to the Registrar of the High Court on May 4, 1971 as follows :

I am directed to refer to Haryana Government endst. No. 1678-1GS 11-71/3802, dated the 22nd April, 1971, on the subject noted above, and to say that after careful consideration of the recommendations of the Punjab and Haryana High Court for appointment of first fifteen candidates to the Haryana Civil Service (Judicial Branch), the State Government have taken the view that it would be appropriate that only the first seven candidates should be appointed to the Haryana Civil Service (Judicial Branch) and a notification has been issued accordingly. The reason is that in the opinion of the State Government, only those candidates who obtained 55% or more marks in the Haryana Civil Service (Judicial Branch) Examination, should be appointed as that was serve to maintain a minimum standard in the appointments to the Service. It may be mentioned that the last candidate appointed against unreserved vacancies out of the merit list prepared on the basis of the Haryana Civil Service (Judicial Branch) Examination held in May, 1969, secured 55.67% marks.

The State Government have also received information that the Punjab and Haryana High Court themselves recommended to the Punjab Government that in respect of P.C.S.(Judicial Branch) Examination held in 1970, candidates securing 55% marks or more should be appointed against unreserved vacancies. Thus, the decision-taken by Haryana Government is in line with the recommendations which the High Court made to the Punjab Government regarding recruitment to the P.C.S. (Judicial Branch) on the basis of the Examination held in 1970, and a similar policy in both the cases would be desirable for obvious reasons.

One fails to see how the existence of vacancies gives 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. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list arid (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence.

It was, however, contended by Dr. Singhvi on behalf of the respondents that since rule 8 of Part C makes candidates who obtained 45 per cent or more in the competitive examination eligible for appointment, the State Government had no right to introduce a new rule by which they can restrict the appointments to only those who have scored not less than 55%. It is contended that the State Government have acted arbitrarily in fixing 55 per cent as the minimum for selection and this is contrary to the rule referred to above. The argument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who,, is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why rule 10(ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility. As shown in the letter of the Chief Secretary already referred to, they fixed a minimum of 55% for selection as they had done on a previous occasion. There is nothing arbitrary in fixing the score of'' 55% for the purpose of selection, because that was the view of the High Court also previously intimated to the Punjab Government on which the Haryana Government thought fit to act that the Punjab Government later on fixed a lower score is no reason for the Haryana, Government to change their mind. This is essentially a matter of administrative policy and if the Haryana State Government think that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should not be selected for appointment, those who get less than 55% have no right to claim that the selections be made of also those candidates who obtained less than the minimum fixed by the State Government. In our view the High Court was in error in thinking that the State Government had somehow contravened rule 8 of Part C.

Their Lordships of the Hon''ble Supreme Court in Jai Singh Dalal and Others Vs. State of Haryana and Another, have held that when the selection process has not been completed and before that the State Government reviewed its earlier decision and decided to revise the eligibility criteria for appointment, no right of petitioner has been violated. Their Lordships have further held that even candidates selected for appointment have no right to appointment and it is open to the State Government at a subsequent date not to fill up the posts or to resort to fresh selection according to revised criteria. Their Lordships have held as under:

It is clear from the above pleadings that in 1990 the State government resolved to resort to special recruitment to the Haryana Civil Service (Executive Branch) invoking the proviso to Rule 5 of the rules. Pursuant thereto, it issued the notifications dated 20/12/1990 and 25/01/1991. The names of the candidates were forwarded by the State government to the HPSC for selection. The HPSC commenced the selection process and interviewed certain candidates. In the meantime, on account of an undertaking given by the Advocate General to the High court at the hearing of C.W.P. No. 1201 of 1991 and allied writ petitions, the State government was required to forward the names of the candidates belonging to two other departments of the State government. Before it could do so, the new government came into power and it reviewed the decision of the earlier government and found the criteria evolved by the earlier government unacceptable and also noticed certain infirmities in the matter of forwarding the names of eligible candidates. It, therefore, resolved to rescind the earlier notifications of 20/12/1990 and 25/01/1991. It will thus be seen that at the time when the writ petition which has given rise to the present proceedings was filed, the State government had withdrawn the aforesaid two notifications by the notification dated 30/12/1991. The stage at which the lastmentioned notification came to be issued was the stage when the HPSC was still in the process of selecting candidates for appointment by special recruitment. During the pendency of the present proceedings the State government finalised the criteria for special recruitment by the notification of 9/03/1992. Thus, the HPSC was still in the process of selecting candidates and had yet not completed and finalised the select list nor had it forwarded the same to the State government for implementation. The candidates, therefore, did not have any right to appointment. There was, therefore, no question of the High court granting a mandamus or any other writ of the type sought by the appellants. The law in this behalf appears to be well settled. In the State of Haryana v. Subash Chander Marwaha this court held that the mere fact that certain candidates were selected for appointment to vacancies pursuant to an advertisement did not confer any right to be appointed to the post in question to entitle the selectees to a writ of mandamus or any other writ compelling the authority to make the appointment. In that case, an advertisement was issued staling that there were 50 vacancies in the Haryana Civil Service (Judicial Branch). An examination was held by the HPSC and 40 candidates passed the said examination with the required minimum 45 per cent marks. Their names were published in the government Gazette. The State government, the appointing authority, made seven appointments out of the said list in the order of merit. Respondents, who ranked 8, 9 and 13 respectively in that list, did not get an appointment although there were vacancies. The reason for not appointing the respondents was that in the view of the State government, which was incidentally identical to that of the High court, candidates getting less than 55 per cent marks in the examination should not be appointed as Subordinate Judges in the interest of maintaining high standards of competence in judicial service. Respondents 1 to 3 challenged this decision on the ground that the State government was not entitled to pick and choose only seven out of them for appointment, because to do so tantamounted to prescribing a standard which was not contemplated. The State government on the other hand contended that the rules did not oblige them to fill in all the vacancies and it was open to them to appoint the first seven candidates in the interest of maintaining high standards. It was further contended that there was no question of picking and choosing and since the rules did not preclude it from selecting from the list the candidates for appointment to set a higher standard, the State government could not be said to have infringed any legal right of the selectees for appointment. In the background of these facts this court came to the conclusion that the mere fact that the candidates were chosen for appointment in response to the advertisement did not entitle them to appointment. To put it differently, no right had vested in the candidates on their names having been entered on the select list and it was open to the government for good reason not to make the appointments therefrom and fill in the vacancies. In a recent decision in Shankarsan Dash v. Union of India the Constitution bench of this court reiterated that even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to appointment against the existing vacancies. It was pointed out that ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. The State is under no legal duty to fill up all or any of the vacancies by appointing candidates selected for that purpose. Albeit, the State must act in good faith and must not exercise its power mala fide or in an arbitrary manner. The Constitution bench referred with approval the earlier decision of this court in Subash Chander Therefore, the law is settled that even candidates selected for appointment have no right to appointment and it is open to the State government at a subsequent date not to fill up the posts or to resort to fresh selection and appointment on revised criteria. In the present case, the selection was yet to be made by the HPSC. Therefore, the petitioners cannot even claim that they were selected for appointment by the HPSC. The selection process had not been completed and before it could be completed the State government reviewed its earlier decision and decided to revise the eligibility criteria for appointment. It is, therefore, clear from the settled legal position that the petitioners had no right to claim that the selection process once started must be completed and the government cannot refuse to make appointments of candidates duly selected by the HPSC.

Assuming (without deciding) that the withdrawal of the earlier notifications by the subsequent notification dated 30/12/1991 does not, stricto sensu, attract the provision of Section 19 extracted above, counsel for the appellants overlooks the fact that since the appellants have no legal right to insist on their selection and appointment to the vacant posts in question, the mode of arresting the process recedes in the background as the State government could have informed the HPSC not to proceed with the selection process as it desired to revise the norm for appointment. Once it is realised that merely because the State government had sent a requisition to the HPSC to select candidates for appointment did not create any vested right in the candidates called for interviews, regardless of the fact that the selection process had reached an advanced stage, it does not matter whether the selection process is arrested by cancelling the earlier notifications by another notification or by a mere communication addressed to the HPSC. Even if the HPSC were to complete the process and select candidates, such selection by itself would not confer a right to appointment and the government may refuse to make the appointment for valid reasons. At best the government may be required to justify its action on the touchstone of Article 14 of the Constitution. In the present case the pleadings do not show that the subsequent notification dated 30/12/1991 is specifically put in issue in the memo of appeal nor is there material placed on record to so hold. Besides, the proviso to Rule 5 requires the method for recruitment to be specified by notification after consultation with the HPSC. The consultation with the HPSC has to be in regard to the positive act of specifying the method for recruitment and not in regard to the decision whether or not to resort to special recruitment. The proviso enables the making of special recruitment but the method of such recruitment has to be specified by notification. It is, therefore, obvious that even after the State government has decided to resort to special recruitment, it may for valid reasons change its mind and one of the reasons could be that it desires to revise the extant eligibility criteria or substitute the same. This can be communicated to the HPSC for arresting the selection process which need not be done by a notification nor does it require consultation with the HPSC. Prior consultation with the HPSC is required before the issuance of a notification specifying the method of recruitment which was done when the notification of 9/03/1992, was issued. Therefore, counsel''s submission that if Section 19 applied, the notification of 30/12/1991 would be rendered invalid for want of prior consultation on the thrust of the words ''in the like manner'' employed therein, is clearly misconceived. Even if Section 19 does not apply, stricto sensu, we see no reason to hold that a State government which has the power to specify the method of special recruitment by notification has no inherent power to revise the same if it for good reasons considers the same necessary. To so hold would mean that even if the State government has committed a mistake it has no power to rectify or correct the same. The authority which has power to specify the method of recruitment must be deemed to have the power to revise and substitute the same in the same manner. On the anology of Section 19 such an inherent power always exists in the authority to alter, vary, change or replace its creation.

Their Lordships of the Hon''ble Supreme Court in State of M.P. and Others Vs. Raghuveer Singh Yadav and Others, have held that the State Government has got power to prescribe qualifications for recruitment and the Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. In this case, the gist of the case was that the Weight and Measures Department of the M.P. Government invited applications for the posts of Inspectors from eligible candidates. The qualification prescribed for eligibility was degree in Art or Commerce or Science or Engineering or Diploma in Engineering. Written examinations were held and the results were declared and interview cards were issued to successful candidates but in the meanwhile, the Government amended the rules by M.P. Standard of Weights and Measurement (Enforcement) Rules, 1989 and altered the qualification for eligibility to the said posts to degree in Science with Physics or degree in Engineering or Technology or diploma in Engineering. Pursuant to the amended rules, the Government withdrew the earlier notification and intended to proceed with the recruitment afresh under the amended rules. The candidates challenged the amended rules before the M.P. Administrative Tribunal on the ground that the rules could not be amended retrospectively. Learned M.P. Administrative Tribunal, Jabalpur directed the State of Madhya Pradesh to proceed with the selection of the candidates without taking into account the amendment made to the rules, introducing the B.Sc. as a qualification for consideration of the applications of candidates. Their Lordships allowed the appeal and held as under:

For recruitment to the posts of Inspectors, Department of Weights and Measures in the State of M.P, an advertisement was issued on 27-7-1987 calling for applications from eligible candidates. The qualification prescribed for eligibility was degree in Arts or Commerce or Science or Engineering or Diploma in Engineering. It would appear that written examinations were held and results were declared on 26-8-1989. Thereafter, the Board issued interview cards to the successful candidates. In the meanwhile, the Government amended the rules by M.P. Standard of Weights and Measurement (Enforcement) Rules, 1989 in consultation with Government of India and Public Service Commission and altered the eligibility qualification for appointment to those posts by presenting degree in Science with Physics as a subject or Degree in Engineering or Technology or Diploma in Engineering. The respondents challenged the amended rules on the ground that having issued the notification for filling up the posts of Inspectors with Degree of Arts and Commerce the State had to proceed with the recruitment only as per the qualification prescribed in the notification and the subsequent amendment to the rules should not stand in the way of the Recruitment Board to consider the claims on the basis of marks secured in the examination and also interview to be held. In other words the amended rules have no retrospective operation. This contention found favour with the Tribunal and accordingly the Tribunal allowed the application.

It is not in dispute that Statutory Rules have been made introducing Degree in Science or Engineering or Diploma in Technology as qualifications for recruitment to the posts of Inspector of Weights and Measures. It is settled law that the State has got power to prescribe qualifications for recruitment. Here is a case that pursuant to amended Rules, the Government has withdrawn the earlier notification and wants to proceed with the recruitment afresh. It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules.

Their Lordships of the Hon''ble Supreme Court in Dr. Ramulu and another, etc. Vs. Dr. S. Suryaprakash Rao and others, have held that candidate cannot acquire any vested right for being considered for promotion in such vacancies in accordance with the repealed rules in view of the policy decision, which was justifiable on the material available on the record. In this case, the Government had taken a decision in the year 1988 to amend the A.P. Animal Husbandry Service Special Rules, 1977. It had taken a conscious decision not to fill up any vacancies till the amendment. In the year 1990, a one-man Commission appointed to examine the anomalies in the Rules of 1977 submitted its report which was duly considered by the Government and ultimately the Government framed the A.P. Animal Husbandry Service Rules, 1996 repealing the 1977 Rules w.e.f. 12.6.1996. Therefore, the Government had not prepared any panel for promotion to the post of Assistant Director for the years 1995-96 in accordance with the 1977 Rules. The Administrative Tribunal, on the application of the respondent directed the Government to prepare and operate such panel. Their Lordships allowed the appeal and set aside the judgment of the Tribunal. Their Lordships have held as under:

The facts are, very fairly, not in dispute. Respondent No. 1 both sets of appeals is a Veterinary Assistant Surgeon in A.P. Animal Husbandry Department. He filed O.A. seeking direction for preparation of a panel of candidates for promotion as Assistant Director under Rule 4 of the A.P. Subordinate Service Rules [for short, the ''General Rules''].The Tribunal directed the respondent-Government to prepare and operate the panel for the years 1995-96 for promotion to the post of Assistant Director in the A.P. Animal Husbandry Service. Calling that order in question, these appeals have been filed by the contesting respondents as well as by the State.

The same ratio was reiterated in Union of India and others Vs. K.V. Vijesh, Thus, it could be seen that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. Shri H. S. Guraraja Rao, contends that this Court in Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, had held that the existing vacancies were required to be filled up as per law prior to the date of the amended Rules. The mere fact that Rules came to be amended subsequently does not empower the Government not to consider the persons who are eligible prior to the date of appointment. It is seen that the case related to the amendment of the Rules prior to the amendment of the Rules. Two sources were available for appointment as sub-Registrar, namely, UDCs and LDCs. Subsequently, Rules came to be amended taking away the right of the LDCs for appointment as sub-Registrar. When the vacancies were not being filled up in accordance with the existing Rules, this court had pointed out that prior to the amendment of the Rules, the vacancies were existing and that the eligible candidates were required to be considered in accordance with the prevailing Rules. Therefore, the mere fact of subsequent amendment does not take away the right to be considered in accordance with the existing Rules. As proposition of law, there is no dispute and cannot be disputed. But the question is: whether the ratio in Rangaiah''s case would apply to the facts of this case? The Government therein merely amended the Rules, applied amended Rules without taking any conscious decision not to fill up the existing vacancies pending amendment of the Rules on the date the new Rules came into force. It is true, as contended by Mr. H.S. Gururaja Rao, that this Court has followed the ratio therein in many a decision and those cited by him are P. Ganeshwar Rao & Ors. v. State of A.P. & Ors. [(1988) Supp. SCC 740] P. Mahendran and others Vs. State of Karnataka and others, A.A. Calton Vs. Director of Education and Another, N.T. Bevin Katti, etc., Vs. Karnataka public Service Commission and others, , Ramesh Kumar Choudha and Others Vs. State of M.P. and Others, . In none of these decisions, situation which has arisen in the present case had come up for consideration. Even Rule 3 of the General Rules is not of any help to the respondent for the reason that Rule 3 contemplates making of an appointment in accordance with the existing Rules.

Their Lordships of the Hon''ble Supreme Court in Rajasthan Public Service Commission Vs. Chanan Ram and Another, have upheld the decision to fill up the vacancies of Marketing Officers, including the vacancies in the abolished cadre, by amended recruitment rules. Their Lordships have also distinguished Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, as under:

15..................In the case of Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, a Bench of two learned Judges of this Court had to consider the question about applicability of Rule 4 (a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules which laid down the procedure for appointment by promotion to the posts in that service. Considering the said rules it was observed that when the said rules enjoined the appointing authority to prepare panels for selecting promotees yearwise in old vacancies to be filled in by promotion if panels were not prepared at appropriate time the authorities could be directed to prepare such panels and while preparing those panels for the earlier years the then existing statutory rules of recruitment had to be applied. The said decision obviously cannot apply on the facts of the present case for two reasons. Firstly, this is not a case of promotion but direct recruitment to the advertised posts and secondly the scheme of the A.P. Rules considered by the Court in that case cast a statutory duty and obligation on the part of the appointing authority to prepare panels of eligible candidates yearwise in connection with the vacancies then existing and if they had failed in that statutory duty and obligation they could legitimately be called upon to carry out that obligation and while doing so for preparing the panelsfor the earlier years the relevant rules then existing had to be kept in view...

Their Lordships of the Hon''ble Supreme Court in latest judgment in Deepak Agarwal and Another Vs. State of Uttar Pradesh and Others, have held that the rules which are prevalent at time when the consideration took place for promotion, would be applicable. Their Lordships have further held that the candidate has the right to be considered in the light of the existing rules, which implies the "rule in force" on the date the consideration took place and there is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. Their Lordships have held as under:

The short question that arises for consideration is as to whether the appellants were entitled to be considered for promotion on the post of Deputy Excise Commissioner under the 1983 Rules, on the vacancies, which occurred prior to the amendment in the 1983 Rules on 17th May, 1999.

Under the unamended 1983 Rules, the petitioners would be eligible to be considered for promotion by virtue of Rule 5(2). By virtue of the Note to Rule 8, a combined eligibility list has to be prepared by arranging the names of Assistant Excise Commissioner and Technical Officers in order of seniority as determined by the date of their substantive appointment. The appellants were, therefore, clearly in the feeder cadre of the post for promotion to the post of Deputy Excise Commissioner. Rule 7 provides that the Appointing Authority shall determine the vacancies to be filled during the course of the year and the number of vacancies. There is no statutory duty cast upon the State to complete the selection process within a prescribed period. Nor is there a mandate to fill up the posts within a particular time. Rather the proviso to Rule 2 enables the State to leave a particular post unfilled.

However, it is a matter of record that the promotions under the 1983 Rules were to be made on the basis of the criteria''s laid down in the Uttar Pradesh Government Criterion for Recruitment by Promotion Rules, 1994. Rule 4 of these Rules provided that:

Recruitments by promotion..................shall be made on the basis of seniority subject to the rejection of the unfit." Consequently, the appellants would have been eligible for promotion on the basis of seniority, as determined under the Note to Rule 8. The aforesaid right for consideration to be promoted on the post of Deputy Excise Commissioner has been taken away by the Uttar Pradesh Excise Group ''A'' Service (5th amendment) Rules, 1999.

It is also a matter of record that 12 vacancies existed on the post of Deputy Excise Commissioner for the year 1997-98 and 1998-99. Out of these 12 vacancies, 10 had arisen prior to 17th May, 1999 and two vacancies arose on 30th June, 1999. By virtue of the amendment in sub-rule 3 of Rule 5, the appellants have been deprived of the right to be considered for promotion on the post of Deputy Excise Commissioner. Respondents have been promoted by the impugned order dated 26th May, 1999 under the amended Rules.

Could the right of the appellants, to be considered under the unamended 1983 Rules be taken away? The promotions of the 12 vacancies have been made on 26th May, 1999 under the amended Rules. The High Court rejected the submissions of the appellants that the controversy herein is squarely covered by the judgment of this Court in the case of Y.V. Rangaiah (Supra). The High Court has relied on the judgment of this Court in Dr. K. Ramulu (supra).

We are of the considered opinion that the judgment in Y.V. Rangaiah''s case (supra) would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amendment rules would be governed by the old rules and not the amended rules.

In the present case, there is no statutory duty cast upon the respondents to either prepare a year-wise panel of the eligible candidates or the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable rules. The requirement to identify the vacancies in a year or to take a decision how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to candidates duly selected for promotion. In our opinion, the appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr. Rajeev Dhawan that the vacancies, which had arisen before 17th May, 1999 had to be filled under the unamended rules.

It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the ''rule in force'' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah''s case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it can not be accepted that any accrued or vested right of the appellants have been taken away by the amendment.

Similarly, this view has been reiterated by this Court in the cases of State of M.P. & Ors. Vs. Raghuveer Singh Yadav & Ors. (supra), H.S. Grewal Vs. Union of India & Ors. (supra) and Rajasthan Public Service Commission Vs. Chanan Ram & Anr. (supra). This Court in Rajasthan Public Service Commission''s case (supra) has held that it is the rules which are prevalent at the time when the consideration took place for promotion, which would be applicable. In Para 17, it has been held as follows:

In the case of State of M.P. v. Raghuveer Singh Yadav a Bench of two learned Judges of this Court consisting of K. Ramaswamy and N. Venkatachala, JJ., had to consider the question whether the State could change a qualification for the recruitment during the process of recruitment which had not resulted into any final decision in favour of any candidate. In paragraph 5 of the Report in this connection it was observed that it is settled law that the State has got power to prescribe qualification for recruitment. In the case before the Court pursuant to the amended Rules, the Government had withdrawn the earlier notification and wanted to proceed with the recruitment afresh. It was held that this was not the case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered according to the rules then in vogue. The amended Rules had only prospective operation. The Government was entitled to conduct election in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State was entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules. In the case of J&K Public Service Commission v. Dr Narinder Mohan another Division Bench of two learned Judges of this Court consisting of K. Ramaswamy and N.P. Singh, JJ. considered the question of interception of recruitment process earlier undertaken by the recruiting agency. In this connection it was observed that the process of selection against existing and anticipated vacancies does not create any right to be appointed to the post which can be enforced by a mandamus. It has to be recalled that in fairness learned Senior Counsel, Shri Ganpule for the respondent-writ petitioner, stated that it is not his case that the writ petitioner should be appointed to the advertised post. All that he claimed was his right to be considered for recruitment to the advertised post as per the earlier advertisement dated 5-11-1993 Annexure P-1 and nothing more. In our view, the aforesaid limited contention also, on the facts of the present case, cannot be of any assistance to the writ petitioner as the earlier selection process itself had become infructuous and otiose on the abolition of the advertised posts, as we have seen earlier. The second point, therefore, will have to be answered in the negative in favour of the appellants and against the respondent-writ petitioner.

The Selection Committee has adjudged the suitability of the petitioner. Their Lordships of the Hon''ble Supreme Court in Union Public Service Commission versus L.P. Tiwari and others, (2006) 12 SCC 317, have held that in the absence of any allegation of mala fides, the assessment made by the Selection Committee is not open to interference by Tribunal/Court on the ground of assessment of comparative merits of the candidates undertaken by the Committee on the basis of their service records as being erroneous. Their Lordships have further held that Tribunal/Court cannot itself undertake the exercise of assessing merits of the candidates for arriving at such finding against the Committee. Their Lordships have held as under:

It is now more or less well-settled that the evaluation made by an expert committee should not be easily interfered with by the Courts which do not have the necessary expertise to undertake the exercise that is necessary for such purpose. Such view was reiterated as late as in 2005 in the case of U.P.S.C. Vs. K. Rajaiah and Others, wherein the aforesaid Rules for the purpose of promotion to the I.P.S. Cadre was under consideration. Apart from the above, at no stage of the proceedings, either before the Tribunal or the High Court or even before this Court, has any allegation of mala fides been raised against the Selection Committee and the only grievance is that the Selection Committee erred while making assessment of the comparative merits of the respective candidates. While concluding his submissions, Mr. Rao had pointed out that the direction given by the High Court to the appellant to hold a Review Departmental Promotion Committee was also erroneous since the Regulations provided for selection to be made not by a Departmental Promotion Committee but by a Selection Committee constituted as per the Regulations.

Although, on behalf of the respondents it has been urged that there was no bar which precluded the Tribunal from looking into the original ACRs of the respective candidates, what we are required to consider is whether it was at all prudent on the part of the Tribunal to have adopted such a procedure which would amount to questioning the subjective satisfaction of the Selection Committee in preparing the Select List.

From the submissions made and the materials on record, we are satisfied that the methodology which has been evolved and included in the Regulations for grading the eligible officers have been religiously followed by the Selection Committee which did not call for any interference by the Tribunal. The High Court has merely followed the decision of the Tribunal without independently applying its mind to the facts involved

Their Lordships of the Hon''ble Supreme Court in Dr. Basavaiah Vs. Dr. H.L. Ramesh and Others, , have held that the Courts should show deference to recommendations of Expert Committee, particularly when no mala fides have been alleged against experts constitution Selection Committee. Their Lordships have further held that the courts should not endeavour to sit in appeal over decisions of experts. Their Lordships have held as under:

The Committee appointed by the University thoroughly scrutinized the qualification, experience and published works of both the candidates and made its unanimous recommendations in favour of their appointments. The University also clearly stated that the appointments of the appellants were made in consonance with the terms of the provisions of the Act. Admittedly, for the selections to the post of Readers, an Expert Committee was constituted and thereafter, its recommendations were accepted by the University and issued orders accordingly. No one had any grievance so far as the constitution of Experts Committee was concerned and no mala fides have been levelled against any member of the expert committee.

It is abundantly clear from the affidavit filed by the University that the Expert Committee had carefully examined and scrutinized the qualification, experience and published work of the appellants before selecting them for the posts of Readers in Sericulture. In our considered opinion, the Division Bench was not justified in sitting in appeal over the unanimous recommendations of the Expert Committee consisting of five experts. The Expert Committee had in fact scrutinized the merits and de-merits of each candidate including qualification and the equivalent published work and its recommendations were sent to the University for appointment which were accepted by the University.

It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. In the instant case, experts had evaluated the qualification, experience and published work of the appellants and thereafter recommendations for their appointments were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the country''s leading experts in the field of Sericulture.

In the instant case, four candidates have already been selected and appointed pursuant to interview held on 23.9.2010. Petitioner has not impleaded any successful candidate. It was necessary for the petitioner to at least implead the last candidate from the merit list.

This Lordships of the Hon''ble Supreme Court in Surinder Shukla Vs. Union of India (UOI) and Others, have held that the selected candidate must be impleaded. Their Lordships have held as under:

The said Col. A.P.S. Panwar and Col. V.K. Sinha were furthermore not impleaded as parties in the writ petition. In their absence, the writ petition could not have been effectively adjudicated upon.

Their Lordships of the Hon''ble Supreme Court in Tridip Kumar Dingal and Others Vs. State of West Bengal and Others, have held that at least some of the candidates whose appointment was challenged ought to have been impleaded in representative capacity and the selection of the candidates could not be set aside without affording them opportunity of hearing. Their Lordships have held as under:

Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the Employment Exchange, they were selected and appointed in 1998-99. The candidates who were unable to get themselves selected who raised a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (selected candidates) as respondents in the Original Application, which was not done. In any case, some of them ought to have been arrayed as respondents in a ''representative capacity''. That was also not done. The Tribunal was, therefore, wholly right in holding that in absence of selected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set aside.

Their Lordships of the Hon''ble Supreme Court in Public Service Commission, Uttaranchal Vs. Mamta Bisht and Others, have held that when all vacancies advertised already were filled up before writ petition was filed and not a single successful candidate impleaded, non-joinder of necessary party was thus fatal. Their Lordships have further held that when a person who is likely to suffer from the order is not impleaded as a party, principles of natural justice are violated. Their Lordships have held as under:

In case the respondent No. 1 wanted her selection against the reserved category vacancy, the last selected candidate in that category was a necessary party and without impleading her, the writ petition could not have been entertained by the High Court in view of the law laid down by nearly a Constitution Bench of this Court in Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, , wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order I, Rule IX of Code of Civil Procedure, 1908 (hereinafter called CPC) provide that nonjoinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh Vs. State of Bombay (Now Gujarat), Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot and Others, and Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others,

In Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, and Tridip Kumar Dingal and Others Vs. State of West Bengal and Others, , It has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties.

Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the writ petition and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.