Appeal No 891 of 1988
From the Judgment and Order dated 3071987 of the Orissa High Court in OJ C
No 162 1 of 1987
Govind Das and JR Das for the Appellant
PN Misra AK Jha and PK Jena for the Respondents
The following Judgments of the Court were delivered SAWANT J This is an appeal by special leave against the order dated 30th July 1987 of the High Court of Orissa
The appellant passed his MA examination in July 1981 securing in the aggregate 364 marks out of 900 marks ie more than 40 per cent of the total marks
In 1983 he secured admission in Ganjam Law College for three year Law Course
There is no dispute that at the time he took admis sion he had submitted his marks sheet along with his MA degree certificate
The appellant completed his first year course known as the Pre Law Course and in 1984 was promot ed to the second year course known as the Intermediate Law Course
In 1985 he appeared for the Pre Law and Inter Law examinations held by the Berhampur University to which the Ganjam Law College is affiliated
He gave the said examina tion and in the same year he was admitted to the Final Law course in the same College
It appears that although he was admitted to the Final Law classes his results for the Pre Law and Inter Law examinations were not declared
The appellant made represen tations to the Bar Council 275 of India and the Administrator of the Berhampur University on February 12 1986
On October 30 1986 the University replied that since the appellant had secured less than 395 per cent marks in his MA degree examination he was not eligible for admission to the Law Course
On November 11 1986 the appellant made a representation pointing out that he had secured more than 40 per cent marks in the said examination and therefore he was entitled to be admitted to the Law course
On November 14 1986 the Chairman of the Board of Studies also wrote to the Deputy Registrar of the University pointing out that the Board of Studies in its meeting held on October 29 1986 had recommended that those students who had passed their MA examination and had secured more than 40 per cent of the total marks should be considered eligible for admission to the Law course even though they had secured less than 20 per cent marks in any one of the papers in the said examinations
In spite of this the University did not take any step to announce the appellant s results
Hence the appel lant approached the Orissa High Court by a writ petition on May 11 1987 challenging the non declaration of his results and the University s refusal to permit the appellant to appear in the Final Law examination
The writ petition was dismissed by the High Court by the impugned order of July 30 1987
Against the said decision the present appeal was filed
By an interim order of March 15 1988
the appellant was permitted to continue his Final Law course and to appear in the examination of the said course
It was also directed that the results of the examinations in which the appellant had appeared should be declared in due course
On these facts the question that falls for consider ation is whether the appellant was eligible to be admitted to the Law course
The University has objected to the appel lant s admission on the ground that the University Regula tion 1 in Chapter VIII relating to the Bachelor of Laws Examination Three Year Course read with Regulation 10 in Chapter V of the University Regulations relating to the Master s Degree Examination requires that if the student has secured less than 25 per cent marks in any of the papers for MA examination he should have on the aggregate more than 395 per cent marks in the said examination
Admittedly the appellant has obtained in the aggregate 364 marks out of 900 marks ie more than 40 per cent marks but in one paper in Group II he has secured only 13 marks out of 100 which were less than 25 per cent
It is therefore the Universi ty s contention that in view of the said Regulations he was not qualified to be admitted to the Law course and since he was admitted wrongly he 276 was not entitled to appear for the examination and there fore for the declaration of his results in the said exami nation
Regulation 1 of Chapter VIII which lays down qualifi cation for admission to the Law course is as follows 1
Any registered candidate may be admitted to the degree of Bachelor of Laws if a he passes the examination for the degree of Bachelor of Arts Bachelor of Science Bache lor of Commerce Bachelor of Oriental Learning Bachelor of Medicine and Bachelor of Surgery Bachelor of Science Engineering Bachelor of Science Agriculture Bachelor of Veterinary Science and Animal Husbandary B Pharma or any other examination recognised by the Bar Council of India and the Academic Council as equivalent thereto securing 40 or more than 395 of marks in the aggregate of such exami nation or any other higher degree examination passed after graduation
Provided that relaxation to the extent of 5 of marks in the qualifying examination be allowed to the Sched uled Caste and Scheduled Tribe candidates
Provided further that in case of physically or the paedically handicapped candidates relaxation upto 5 of marks in the qualifying examination may be given on produc tion of a certificate ofdisability from any Government Medical Officer to the satisfaction of the authority con cerned 
The first paragraph of Regulation 1 on which reliance is placed by the University shows that the requirement of 40 per cent or more than 395 per cent marks in the aggregate is meant only for graduates such as of Bachelors of Arts etc
That requirement does not apply to those candidates who pass any higher degree examination after graduation
There fore on a plain reading of the said paragraph a postgradu ate student like the appellant who has passed his MA examination is not required to satisfy further that in the said post graduate examination he has secured 40 per cent or more than 395 per cent marks in the aggregate
It is enough if he has passed his post graduate examination
277 7
What is further Regulation 10 in Chapter V of the Regulations which prescribes marks for passing MA MCom
and MSc
examinations states that the minimum marks re quired for a student to pass the said examinations is 36 per cent in the aggregate of all the theory papers taken togeth er in case of MA and MCom
examinations and in the case of MSc
examination 36 per cent in the aggregate of all the theory papers taken together and 40 percent in the aggregate of all the practical papers taken together
I am not concerned here with the marks of MSc
examination
The proviso to the said Regulation 10 further states that no minimum pass marks shall be required in any paper
But if in any paper a candidate obtains less than 25 per cent of marks those marks shall not be included in the aggregate
In other words in the case of the appellant who has ob tained 364 marks out of 900 on the aggregate his 13 marks in one of the papers being less than 25 per cent have to be excluded
His aggregate marks therefore come to 35 1 out of 900 marks according to this Regulation
They are admit tedly more than 36 per cent as required by the said Regula tion for passing the MA examination
I may reproduce the said Regulation here 10
The minimum marks that a candidate shall obtain to have passed shall be thirty six per cent in the aggregate of all the theory papers taken together in the case of MA MCom
and in the case of MSc
thirty six per cent in the aggre gate of all the theory papers taken together and forty per cent in the aggregate of all the practical papers taken together
Provided further that no minimum pass marks shall be required in any paper but if in any paper a candidate obtains less than twenty five per cent of marks then these shall not be included in the aggregate
Even though therefore for admission to the Law course there is no requirement of any particular marks for post graduate students like the appellant and the appellant is entitled to be admitted under Regulation 1 in Chapter VIII of the said Regulations quoted earlier the appellant satisfies the other qualification as well viz he has passed the MA examination with 36 per cent in the aggre gate deducting 13 marks in one of the papers and is there fore duly qualified to be admitted to the Law course
Mr Misra appearing for the respondents however conten 278 ded firstly that the qualifying marks for admission as per Regulation 1 of Chapter VIII even for post graduate students was 40 per cent or more than 395 per cent and since the appellant admittedly did not secure more than 395 per cent marks after deducting from the aggregate 13 marks secured in one of the papers he was not eligible for being admitted to the Law course
I have pointed out herein after that the plain reading of the said Regulation shows that the qualify ing marks laid down there do not apply to the post gradu ates
They apply only to graduates
As far as the post graduates are concerned it is enough that they have passed their examination
Secondly he has also obtained the marks as required by the said Regulation 10 of Chapter V which is applicable to the appellant viz 39 per cent when the minimum marks laid down by the said Regulation is only 36 per cent
Mr Misra then relied upon the prospectus of the Ganjam Law College which had laid down as follows 1    2    3
Eligibility for admission
1 Pre law class
a An aggregate of 40 per cent and above in the B A BSc BCom or any other university Degree of Higher Uni versity examination recognised by Berhampur University   
and contended that even if a candidate has a higher degree than B A BSc BCom he has to have an aggregate of 40 per cent minimum marks
As I read the said prospectus I find that it is on par with the qualification for admission given in University Regulation 1 in Chapter VIII quoted above
The aggregate of 40 per cent and above marks is required only for graduates and there is no requirement of any percentage of marks prescribed for the post graduates
Resolution No 1231984 of the Bar Council of India passed on October 30 1984 and which is Annexure K  to the re spondent University s counteraffidavit also shows that for admission to three year Law course the qualification of minimum of 395 per cent marks is meant only for graduates
That Resolution does not speak of the requirement of marks for examination at post graduate level
I am also of the view that this distinction between graduates and post gradu ates made in the 279 matter of the qualifying marks is as it ought to be since graduates and post graduates cannot be treated equally
A post graduate student has a minimum of two years more of academic pursuit to his credit than the graduate before he seeks admission to the Law course
Obviously therefore they cannot be treated equally and that is what the Univer sity and the Bar Council of India have rightly done
It is the interpretation placed by the University on its own Regulations and the Resolution of the Bar Council of India which is at fault and not the Regulations or the Resolution
This is apart from the fact that I find that in the present case the appellant while securing his admission in the Law College had admittedly submitted his marks sheet along with the application for admission
The Law College had admitted him
He had pursued his studies for two years
The University had also granted him the admission card for the Pre Law and Intermediate Law examinations
He was per mitted to appear in the said examinations
He was also admitted to the Final year of the course
It is only at the stage of the declaration of his results of the Pre Law and Inter Law examinations that the University raised the objec tion to his so called ineligibility to be admitted to the Law course
The University is therefore clearly estopped from refusing to declare the results of the appellant s examination or from preventing him from pursuing his final year course
For all these reasons I am of the view that the University is not justified in refusing to declare the appellant s results of the PreLaw and Intermediate Law examinations
The appeal therefore succeeds
The respond ent University is directed to declare the said results as well as the result of the Final examination if the appellant has appeared for the same
The appeal is allowed according ly
In the circumstances of the case there will be no order as to costs
SHARMA J 12
I agree that the appeal should be allowed as indi cated by my learned Brother
The learned counsel for the appellant contended that the respondent University having issued the admit card and permitted the appellant to appear at parts I and II of Law Examination should not have later refused to publish his result
If there was any irregularity in the admission of the appellant for the Law course the University authorities ought to have scrutinised the position before permitting 280 him to take the examination
It was pointed out that in identical circumstances the same High Court had earlier in the same year allowed the case of another candidate in OJC No 2619 of 1986 by a judgment which also was by a Division Bench
Mr PN Misra the learned counsel for the respond ent contended that the University had informed the Colleges about the necessary condition for admission to the Law course which it appears was not respected by the College
When the applications by the candidates for sitting at the examination were forwarded by the College the University asked the Principal to send the marks of the candidates for the purpose of verification
but the Principal did not comply
The letters Annexures F  and G  to the counter affidavit have been relied upon for the purpose
The learned counsel pointed out that instead the Principal sent a letter Annexure 1  stating that the marks list would be sent in a few days for your kind reference and verifica tion which was never sent
The Principal wrongly assured the University authorities that he had verified the position and that all the candidates were eligible
In these circum stances the argument is
that the appellant cannot take advantage of the fact that the University allowed him to appear at the examination
1 am afraid the stand of the respondent cannot be accepted as correct
From the letters of the University it is clear that it was not depending upon the opinion of the Principal and had decided to verify the situation for itself
In that situation it cannot punish the student for the negligence of the Principal or the Universi ty authorities
It is important to appreciate that the appellant cannot be accused of making any false statement or suppressing any relevant fact before anybody
He had pro duced his marks sheet before the College authority with his application for admission and cannot be accused of any fraud or misrepresentation
The interpretation of the rule on the basis of which the University asserts that the appel lant was not eligible for admission is challenged by the appellant and is not accepted by the College and my learned Brother accepts the construction suggested by him as cor rect
In such a situation even assuming the construction of the rule as attempted by the University as correct the Principal cannot be condemned for recommending the candida ture of the appellant for the examination in question
It was the bounden duty of the University to have scrutinised the matter thoroughly before permitting the appellant to appear at the examination and not having done so it cannot refuse to publish his results
Before parting I would like to impress upon the University authorities to frame the rules in such clear terms that it may not 281 require great skill for understanding them
It is a serious matter if a student who acts upon one interpretation of a rule and spends a considerable period of his youth is later threatened by a possible alternative construction which may cost him several years of his life
In order to achieve clarity it does not matter if the rule instead of being concise is elaborate and lengthy
Y Lal Appeal allowed


Summary:
The Karnataka Public Service Commission issued a notifi cation on 23rd May 1975 inviting applications from in serv ice candidates for recruitment to 50 posts of Tehsildars
In para 14 of the notification it was stated that provisions of 1975 Rules and Rules 7 to 14 of the Karnataka Recruitment of Gazetted Probationers Class I  11 posts Appointment by Competitive Examination Rules 1966 shall mutatis mutandis apply to the conduct of the competitive Examination and the provisions of the Karnataka State Civil Services General Recruitment Rules 1957 shall apply in respect of matters for which no provision is made in the Rules
In preparing the select list and making reservations to the various categories the Commission followed the direc tions and the procedure as contained in Government Order dated 6th September 1969
The State Government refused to approve the list and directed the Commission on 23476 to prepare the list afresh following the Government Order dated 7th July 1975
The Commission thereupon prepared the list afresh as per Government Order of 7th July 1975
In the revised list the appellants names did not figure
The appellants challenged the validity of the Government Order dated 23rd April 1976 as well as the revised list and the validity of the Government Order dated 9th July 1975 by means of writ petitions before the High Court on a number of grounds
The appellants contended that the Government Order dated 7th July 1975 prescribing mode of preparing the select list by making reservations for various categories was inconsistent with the statutory Rule 10 of 1966 Rules and further the directions contained therein were violative of Articles 161 and 164 of the Constitution of India
240 The High Court rejected both the contentions holding that the directions contained in Government Order of 9th July 1975 were not violative of Rule 102 and there was no violation of Article 16 of the Constitution
The High Court also upheld the Government Order dated 23476 directing the Commission to prepare the select list afresh in accordance with the mode prescribed vide Government Order of 9th July 1975
In this Court the appellants did not pursue their challenge to the validity of the Government Order dated 9775 but they assailed the validity of Government Order dated 23476 wherein the Government directed the Commission to prepare a revised list in accordance with the Government Order dated 9775 on the ground that the Government Order was not applicable to the pending selection
The appellants also urged that the mode of selection and procedure for making reservations as prescribed by Govern ment Order of 9th July 1975 was not applicable to the selec tion as advertisement had been issued in May 1975 and the process of selection had already commenced prior to the issue of Government Order dated 9th July 1975 and that the revised list of successful candidates prepared by the com mission as per Government directions of 23476 was illegal and contrary to the Rules
On behalf of the Respondents it was submitted that the list of successful candidates had been prepared in accord ance with Government Order dated 9th July 1975 the State Government was justified in insisting upon the Commission to prepare the list afresh in accordance with the directions contained in the aforesaid order
Allowing the Appeals and setting aside the Order of the High Court HELD 1 Where advertisement is issued inviting appli cations for direct recruitment to a category of posts and the advertisement expressly states that selection shall be made in accordance with the existing rules or Government Orders and if it further indicated the extent of reserva tions in favour of various categories the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders if any
2 Whether the Rules have retrospective effect or not primarily depends upon the language of the Rules and its construction to ascertain the legislative intent
241 3 Indisputably the Government Order of 9th July 1975 superseded all earlier Government Orders including that of 6th September 1969 but in para II it saved the selection which was pending ie it saved the reservations already made for any category of post or service in respect of which advertisement had already been issued before the issue of Government Order dated 9th July 1975
Para II was in the nature of a saving clause and the Commission rightly fol lowed the mode of selection prescribed under the Government Order in force prior to Government Order of 9th July 1975
The State Government was bound to give full effect to the provisions of para II of Government Order dated 9th July 1975
therefore directions contained in its order dated 23476 were illegal 248C E 249E 4
Another aspect of the instant case is that where advertisement is issued for direct recruitment to a category of posts expressly stating that selection shall be made in accordance with the existing rules or Government Orders and also indicates the extent of reservations in favour of various categories the selection of candidates must be made in accordance with these rules and Government Order
The candidates who applied for selection in pursuance of the advertisement acquired vested right for being considered for selection in accordance with the terms and conditions of the advertisement
249E G 5
In case the recruitment Rules are amended retrospec tively during the pendency of the selection then selection has to be made in accordance with the amended rules
Whether rules have retrospective effect or not primarily depends upon the language of the Rules and its construction to ascertain the legislative intent either by express provi sion or by necessary implication
If the amended Rules are not retrospective in nature the selection must be regulated in accordance with the existing Rules and orders in force at the time of advertisement
249H 250A B 6 It is a well accepted principle of construction that Statutory Rule or Government Order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect
251 D 7 In the instant case para II of the Government Order dated 9th July 1975 made the Governments intention clear that the revised directions which are contained in the said Government Order would not apply to the selection in respect of which advertisement had already been issued
Therefore the mode of selection as contained in Annexure to the Gov ernment Order dated 9th July 1975 was not applicable to the selection for filling 50 posts of Tehsildars pending before the Public Service Commission
251G H 242 8
Having regard to the facts the circumstances of the case
it would be expedient in the interest of justice not to interfere with the respondents  appointment but the State Government is directed to appoint I the appellants on the posts of Tehsildars with retrospective effect
If no vacan cies are available the State Government is directed to create supernumerary posts of Tehsildars for appointing the appellants against those posts
For purposes of seniority the appellants should be placed below the last candidate appointed in 1976 but they will not be entitled to any back wages
252F G