IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIFTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No: 16866 of 2009 BETWEEN: Tappeti Gayathri, D/o. Narayana Reddy, R/o. 1-91, Kulkacherla, Rangareddy District. ... PETITIONER AND Government of A.P., rep. by its Principal Secretary, School Education Department, Secretariat, Hyderabad and others. ...RESPONDENTS Counsel for the Petitioners: MR. P. NARASIMHA Counsel for the Respondents: GP FOR SERVICES -I The Court made the following order: ORDER: (per Hon’ble Sri Justice Vilas V. Afzulpurkar) The petitioner in this writ petition is aspiring for the post of School Assistant (SA) under the Andhra Pradesh Direct Recruitment of Teachers (Scheme of Selection) Rules, 2008 (hereinafter called DSC- 2008). The petitioner is M.A. (English) and B.Ed. and has applied for the post of School Assistant (English). 2. The Government of Andhra Pradesh issued G.O.Ms.No.161 Education (Services – VI) Department dated 06.12.2008 in exercise of its powers under Article 309 of the Constitution of India read with rule making power under the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act; Andhra Pradesh Municipalities Act and Education Act. The aforesaid rules are to apply to all categories of teacher posts under the management of Government, Zilla Praja Parishads, Mandal Praja Parishads, Integrated Tribal Development Agencies, Municipalities, Municipal Corporations and such other categories of teacher posts in all other schools as would be notified by the Government from time to time. The aforesaid rules lay down the method of recruitment, qualifications for the post of School Assistants in various subjects and secondary grade teachers and equivalent cadres in various subjects and Language Pandits under various subjects apart from physical education teachers. 3. The rules also lay down composition of selection committee for each District, time schedule for recruitment of teachers, notification of vacancies, the minimum age and maximum age requirements, method of submission of application forms, syllabus for the written test, publication of the key and selection procedure etc. The said rules are subject to the outcome of review petition in WPMP.No.3030 of 2008 in WP.No.12800 of 2007 and batch pending before this Court and SLP.No.27031 of 2008 pending before the Honourable Supreme Court. In pursuance of the rules, the Director of School Education notified the vacancy position and the said notifications were published in newspapers. The initial publication dated 08.12.2008 was followed by errata dated 09.02.2009 whereunder the vacancy position was revised and published and the last date for receiving the application forms was also extended up to 15.02.2009. It is stated that the said recruitment drive is the largest of all and covers about 50,000 vacancies. 4. As mentioned above, in this batch of cases we are concerned with the recruitment to the posts of SGT teachers and equivalent cadres. Rule 4 dealing with qualification is as follows: (1) A candidate for selection to these posts shall possess academic and professional/training qualifications as mentioned in Rule 4, 5 and 6, as the case may be.” Rule 4(3)(a) as it relates to the Secondary Grade Teachers prescribe the following qualification: “Must possess Intermediate Certificate issued by the Board of Intermediate Education, Andhra Pradesh Hyderabad and D.Ed Certificate issued by the Director of Government Examinations, Andhra Pradesh. OR Must possess a Bachelor’s Degree and a B.Ed. (Subject to the outcome of review petition in WPMP.No.3030 of 2008 in WP.No.12800 of 2007 and batch pending before this Court and SLP.No.27031 of 2008 pending before the Honourable Supreme Court)” Rule 8 providing for submission of application forms provide under (ii) and (iii) as follows: (i) … (ii) The candidate shall submit the application along with attested copies of all relevant certificates. (ii) Non-submission of the attested copies of certificates and memos of marks pertaining to the minimum qualifications prescribed for the post, will make his/her application invalid and hence liable for rejection.” 5. After promulgation of these rules, the Government of Andhra Pradesh received number of representations from aspiring candidates, peoples representatives etc. wherein it was brought to the notice of the Government that several new subjects like Genetics, Micro-Biology, Applied Physics etc. have been introduced in the curriculum apart from basic subjects of Botany, Zoology, Physics, Chemistry and keeping in view the emerging trends in the field of education and the number of aspiring candidates, to seek the best talent and quality in teaching, in the interest of students, the Government decided to introduce these modern subjects of specialization in the said recruitment drive and accordingly, modified the rules initially issued G.O.Ms.No.161 dated 06.12.2008 by incorporating these new subjects and issued G.O.Ms.No.28 Education (Services – VI) Department dated 29.01.2009 wherein the Government also amended Rule 4 dealing with qualification by inserting Para 6 extracted below, around which question involved in this writ petition is centered. “6) The candidates who are going to appear for final year of qualifying academic or qualifying professional course examinations, for eg: B.Com, B.Ed. appearing for final years M.A. English or M.A. Telugu etc., D.Ed/Pandit Training/B.Ed./B.P.Ed./U.G.D.P.Ed. of recognized institutions etc., to be held by May 2009 are also permitted to apply for the posts of Secondary Grade Teachers/School Assistants/Physical Education Teachers/Language Pandits subject to fulfilling all other conditions and on production of “Bonafied Certificate” issued by the Principal of the Institutions in which they are studying, duly specifying that the candidate “is a final year student of…course for which the final exam is scheduled for …(month) 2009. Further, provided that, all such candidates shall have to produce their degree certificates at the time of final selection/counseling as per schedule declared by Director of School Education, A.P., Hyderabad.” 6. Under the aforesaid amendments, which are issued by G.O.Ms.No.28 dated 29.01.2009 the candidates appearing for final year of various courses, as mentioned above, including D.Ed, for which examinations were scheduled to be held in May 2009 were also permitted to apply. However, a condition was also incorporated that at the time of final selection/counseling the candidates must produce their degree certificates. It is the aforesaid amendment, which has given rise to this spate of litigation covering batch of OAs before the tribunal. 7. The petitioner in this writ petition had filed O.A.No.8510 of 2009 questioning the Para 6 of G.O.Ms.No.28 date d29.01.2009 and sought a declaration that the said amendment issued to rules under G.O.Ms.No.161 dated 06.12.2008 is illegal and arbitrary and in violation of Articles 14, 16 and 21 of the Constitution of India and consequently to direct the respondents to finalize the selection process on the basis of merit and ranking obtained by the qualified candidates at the time of issuance of the notification or last date for receipt of applications by duly deleting the qualifying candidates from the selection list. The said OA was dismissed by the tribunal under its judgment dated 28.07.2009. Questioning the same, the present writ petition is filed. 8. We have heard Mr. P. Narsimha, learned counsel for the petitioners and the learned Government Pleader for School Eduation. 9. Learned counsel for the petitioner submitted that the reasons based on which the said amendments were issued under G.O.Ms.No.28 dated 29.01.2009 are wholly irrelevant. He contends that as per G.O.Ms.No.161 dated 06.12.2008 such of the candidates who are qualified alone are entitled to compete for the selection and consequently the candidates appearing for final year examinations, admittedly being non-qualified, are not entitled to compete for the said selection. Learned counsel, further, submits that the requirement of the essential qualification is diluted by permitting the final year students to appear for the selection though they do not hold the requisite qualification. He placed reliance upon the decisions of the Supreme Court in SECY., A.P. PUBLIC SERVICE COMMISSION v. B. SWAPNA[1]; MOHD. SOHRAB KHAN v. ALIGARH MUSLIM UNIVERSITY[2]; MADAN MOHAN SHARMA v. STATE OF RAJASTHAN[3]; MAHARASHTRA SRTC v. RAJENDRA BHIMRAO MANDVE[4] and DIPTIMAYEE PARIDA v. STATE OF ORISSA[5]. 10. Learned Government Pleader contends that the reasons, which weighed with the Government in issuing G.O.Ms.No.28 dated 29.01.2009 are set out in the GO itself and the factual aspects, which were considered by the Government, are not in dispute. Further, the Government has expressed that the selection is required to be made keeping in view the overall consideration of offering best possible teaching to the students and keeping in view the emerging areas of development and updation in the field of education. The Government also noted that due to economic slow down there has been unprecedented rush to apply to the posts of teachers in DSC-2008, which also is the largest ever recruitment being made. Thus, in order to have a broad based selection procedure, the eligibility was extended under Para 6 of the above GO to all those candidates who are appearing for the final year examination conducted for various final year courses including D.Ed, to be held in May 2009. He also submits that the candidates are required to submit essential qualification certificates at the time of final selection/counseling and therefore, it cannot be said that the quality or essential qualification is diluted or given a go bye by the said amendment. He, therefore, submits that the petitioner, who is said to be qualified under the rules originally issued under G.O.Ms.No.161 dated 06.12.2008 cannot claim to possess any legal right to oppose the candidature of those, who are appearing for final year qualifying examinations in May 2009. 11. In the light of the above rival submissions, we have deeply considered the matter. It is to be noticed, at the outset, that the qualifying standards for the selection are not lowered or diluted in any manner by the aforesaid amendment. The amendment merely permits that the students appearing for final year qualifying examinations in May 2009 are alone eligible to apply and offer their candidature. The reasons, therefore, apparently being that the written test for selection for DSC-2008 was being held in May 2009 and by that time the candidates offering their candidature would not only be those, who have completed the course and having given certificates of completion also and also such of those candidates, who have completed the academic course and appearing for final year examination and awaiting their results. The cut off date of May 2009 for such of those examinations has, therefore, necessary nexus with the selection test proposed in May 2009. It cannot be denied that even such candidates will have to produce certificates showing that they are duly qualified by fulfilling minimum eligibility requirement. In the aforesaid background, the decisions cited by the learned counsel for the petitioner are to be examined. 12. The decision in SECY., A.P. PUBLIC SERVICE COMMISSION’s case (1 supra) in Para 14 states as follows: “14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for the applicant-respondent No.1 it was un-amended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criteria e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the Statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If the Rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran and Ors. v. State of Karnataka and Ors. etc. (1990 (1) SCC 411) and Gopal Krishna Rath v. M.A.A. Baig (dead) by Lrs. And Ors. (1999(1) SCC 544). In the aforesaid decision, after the public service commission had made recommendations with respect to the vacancies notified, the wait list candidates had sought to enforce the right of appointment for the fresh vacancies though the selection list for the existing vacancies was already notified. Under the Andhra Pradesh Public Service Commission (Procedure) Rules, the commission had reserved to itself the right to freeze any ranking list and by virtue of that power when fresh vacancies were required to be filled the commission froze the existing waiting list and decided to take up fresh recruitment. The issue, therefore, before the Supreme Court was whether the said action of the commission was justified. The power of the Commission to freeze the list was by virtue of an amendment issued to the rules, which provide that followed vacancies, if any, due to relinquishment or non-joining etc. of the selected candidates shall be notified in the next recruitment. The question, therefore, was whether the said amendment was applicable prospectively. The Supreme Court held that “The Commission has been given right to freeze any ranking list. The selection from the ranking list from amongst the posts advertised shall limit to the cases whether the selected candidates has relinquished, the selection or who had non-joining out within given time and also new requisitions send by the appointing authority. The Commission did not think it appropriate to make appointment from the new requisitions. The fact that the Commission had directed that fresh advertisement were to be made is clearly indicative of the fact that the Commission did not want the new requisitions to be filled up by appointing from the ranking list in force.” In that view, therefore, the action of the service commission was upheld. The said decision has no bearing on the issue involved in the present case. 13. The further decision in MOHD. SOHRAB KHAN’s case (2 supra) related to selection for the post of lecturer in Chemistry where the requirement was Masters Degree in Chemistry or Pure Chemistry. The candidate, who was appointed by the University, had a Masters Degree in Industrial Chemistry. The Supreme Court held that the said appointee did not fulfill the requirement as Pure Chemistry and Industrial Chemistry are different subjects and ultimately the Supreme Court quashed the appointment and since the recommendation earlier made by the selection committee for the next candidate had lapsed, fresh selection was directed to be undertaken. The said decision also is not helpful to the petitioner’s contentions. 14. The decision in MADAN MOHAN SHARMA’s case (3 supra), however, is relied upon for the proposition that eligibility criteria cannot be changed during the pendency of the selection process. Reliance on Para 4 is placed by the learned counsel for the petitioner, which is extracted as hereunder: “4. We have heard learned counsel for the parties and perused the records. Mr. M.R. Calla, learned senior counsel appearing for the appellants has strenuously urged that during the pendency of the selection process, the eligibility criteria was changed and the date for submission of the application in pursuance to the advertisement was extended and Rule 266 of the Rules of 1996 came into being on 30.12.1996 whereby it was provided that Higher Secondary Examination shall be the criteria for preparing the merit list. As such, as per the service rules, the selection should have been made on the basis of Higher Secondary Examination marks and not on the basis of Secondary Examination marks. We regret this cannot be accepted. Once the advertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which was laid down and it cannot be on the basis of the criteria which has been made subsequently. As per the circular which was obtaining at the time when the advertisement was issued was dt. 4.7.1995, the criteria for selection to the post of Teacher Grade III was Secondary Examination though this was changed during the pendency of the advertisement. Subsequent amendment of the Rules which was prospective cannot be made retrospective so as to make the selection on the basis of the Rules which were subsequently amended. If this was to be done, then the only course open was to recall the advertisement No.1/1996 and to issue fresh advertisement according to the Rules which had come into force. Secondly, this was not done and erroneously the authorities made the amended Rules applicable and proceeded with the selection which resulted into litigation and ultimately Radhey Shyam Sharma succeeded in that litigation and it was held that the selection should be made as per Secondary Examination marks, the criteria which was prevalent at the time when the advertisement was issued. Thereafter looking to the hardship the Government invoked the power of relaxation under Rule 296 of the Rules of 1996 and order of appointment was issued in favour of both the appellants. This again resulted into litigation and ultimately, in that litigation, Rule 296 of the Rules of 1996 was struck down being ultra vires and consequently, the appointment of both the appellants were set aside. The Division Bench of the High Court looking to the hardship of the candidates issued the direction as aforesaid. The question is once Rule 296 of the Rules of 1996 conferring the power to the State to relax the qualification is struck down then the appointment of both these candidates cannot survive and this has been down by the Division Bench of the High Court and rightly so. We fail to understand that where was the need for a Committee headed by the Chief Secretary of the State to examine the matter. Once the power of relaxation of eligibility criteria conferred on the State under Rule 296 has been struck down by the learned Single Judge and the same having been upheld by the Division Bench of the High Court cannot be sustained as the said Rule 296 has already been struck down. Once the rule has been struck down the effect would be that it stood in the statute book. The posts were again advertised in 1998 and the selection has already been undertaken, therefore, the earlier selection pursuant to Advertisement No.1/1996 is over and whatever the posts which have been left over and could not be filled up after fresh selection is undertaken. Whatever posts were left over will automatically be included in 1998 selection. It will be futile exercise to constitute a committee headed by the Chief Secretary to examine as to whether vacancies of teacher Grade III pursuant to advertisement No.1/1996 still exists and whether after the judgment of learned Single Judge any appointment on the post of Teacher Grade III was given by relaxing the educational qualification under Rule 296. We think that direction issued by the Division Bench of the High Court was totally unwarranted. Once the Division Bench has found that the earlier selection pursuant to Advertisement No.1/1996 is valid. The Division Bench should have stopped there. Therefore, under these circumstances, we are of opinion that the direction given by the Division Bench of the High Court in paragraph 26 of the judgment is totally unwarranted and the selection which had taken place on the basis of the advertisement No.1 of 1996 on the basis of the circular dated 24.7.1995 was correct. The eligibility criteria for appointment of Teacher Grade III as Secondary Examination was correctly taken into consideration for selection. The relaxation granted to these two appellants cannot be availed of by them as Rule 296 of the Rules of 1996 has already been held ultra vires by learned Single Judge which has been upheld by the Division Bench of the High Court. The Supreme Court, therefore, upheld the principle that once the advertisement has been issued the selection process should continue on the basis of the criteria, which was laid down and the said criteria cannot be changed thereafter. However, in the present case, the learned counsel for the petitioner is not able to establish any change in selection criteria. The essential qualification requirement of possessing qualifying degree certificate has not been changed even with respect to candidates appearing for the final year examinations in May 2009. The dilution of the criteria for selection is quite different from providing broad based eligibility to apply for the selection or offer candidature for selection. The petitioner, apparently, is confusing between the eligibility to apply and the selection process. While the later cannot be changed or lowered or diluted after the selection process has started, the eligibility to offer candidature can be broad based to attract best talents as available. The aforesaid decision deals with lowering of criteria for selection and that being nor the case on hand, the aforesaid decision, thus, would not apply to the facts of the present case. 15. Learned counsel also relied upon another decision of the Supreme Court in DIPTIMAYEE PARIDA’s case (5 supra) and particularly Para 12 thereof, which is as follows: “Even otherwise, ordinarily the qualification or extra-qualification laid down for the recruitment should be considered as on the last date for filing of the application. This has been so held in REKHA CHATURVEDI v. UNIVERSITY OF RAJASTHAN [1993 Supp (3) SCC 168].” In the above decision in REKHA CHATURVEDI v. UNIVERSITY OF RAJASTHAN, the Supreme Court considered that in the absence of a fixed date indicated in the advertisement/notification inviting applications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. 16. In the present case, as noticed above, the very rules under G.O.Ms.No.161 dated 06.12.2008 are issued under Article 309 of the Constitution of India, which is a legislative exercise and the said initial rules were amended by G.O.Ms.No.28 dated 29.01.2009 and Para 6 of the amendment permitted that the final year students of qualifying examinations are also eligible to apply. The said Para 6 also is, therefore, part of legislative exercise where the rule itself is amended providing for eligibility. It is, therefore, not as if the basic requirement of a candidate possessing the requisite qualifying degree is dispensed with or lowered. The rule enunciated in the aforesaid decision is not violated in the present case. In that view of the matter, therefore, the contention of the learned counsel for the petitioner that only those, who are qualified alone, can apply is not sustainable. The said primary contention of the learned counsel for the petitioner is liable to be rejected. 17. The tribunal has also noticed that the petitioner himself has acquiesced in not approaching the tribunal earlier. The petitioner has participated in the selection, appeared for the written examination, secured 55% of the marks and just when the selection process is about to end, has approached the tribunal with the present OA in the second week of August 2009. The amendments in question were issued as early as in January 2009 and the selection and the written test were already over where, admittedly, the petitioner secured 55% marks in the written test. Petitioner’s challenge to the amendment of the rules, therefore, was found highly belated and there is no explanation as to why she had not approached the tribunal earlier before participating in the selection process. In that view of the matter also, the tribunal declined to exercise its jurisdiction. We are also of the view that the conduct of the petitioner does not deserve exercise of our extra-ordinary jurisdiction on the facts and in the circumstances of this case. The writ petition, therefore, is liable to be dismissed and is accordingly dismissed. However, there shall be no order as to costs. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J September , 2009 DSK [1] (2005) 4 SCC 154 [2] (2009) 1 SCC (L&S) 917 [3] AIR 2008 SC 1657 [4] (2001) 10 SCC 51 [5] AIR 2009 SC 935