The main legal point established in the judgment is that the Rules of 2008 could not be amended by an executive order, and subsequent amendments in 2014 made NET/SET/SLET clearance mandatory for candidates with M.Phil Degree, affecting their eligibility for advertised posts.

Hasnain Massodi, J.:-

1. Jammu and Kashmir Public Service Commission-respondent No. 4 herein vide Notification No. 09-PSC (DR-P) of 2013 dated 23rd May 2013 invited applications from eligible candidates to fill up 1289 vacancies of Assistant Professor (carrying pay scale of Rs. 15600-39100+6000) in different disciplines in various Government Degree Colleges of the State. The selection process was to be undertaken in accordance with Jammu and Kashmir Education (Gazetted) College Services Recruitment Rules, 2008 (in short Rules of 2008) notified vide SRO-423 of 2008, dated 23rd December 2008 read with Government Order Nos. 252-HE of 2012 dated 30th May 2012, 254 HE of 2013 dated 21st May 2013 and Communication No. Coll/Coord/774/2013 dated 22nd March 2013 issued by Higher Education Department of the State Government. In terms of SRO-423 of 2008 dated 23-12-2008, a candidate with M.Phil Degree would be eligible for the advertised position even if he had not qualified National Eligibility Test/State Level Eligibility Test/State Eligibility Test (NET/SLET/SET) conducted by UGC/CISR/Association of Indian Universities/AIU/University of Jammu/Kashmir. The Government Order No. 254-HE of 2013, dated 21st May 2013 deleted M.Phil from the relevant para of Schedule II of Rules of 2008. Resultantly a candidate with M.Phil Degree would not be eligible for the advertised post unless he has qualified NET/SLET/SET. The Government order dated 21st May 2013 emboldened respondent No. 4 to delete M.Phil Degree from "prescribed qualification" in the Advertisement Notification dated 23rd May 2013.

2. The Advertisement Notification No. 09-PSC (DR-P) of 2013, dated 23rd May 2013 came to be questioned to the extent it excluded aspirants for advertised posts with MPhil Degree without NET/SLET/SET clearance before both the wings of this Court in SWP Nos. 1288/2013, 1400/2013, 1080/2013, 1027/2013, 1123/2013 and 1140/2013, Challenge was thrown to aforementioned Notification primarily on the ground that as Rules of 2008 were made in exercise of powers under Section 124 Constitution of Jammu and Kashmir, it was not open to respondent No. 1 to amend the rules by Government order by passing procedure for amendment laid down under law.

3. The writ petitions - SWP Nos. 1288 of 2013 and 1400/2013 were allowed Government order No. 254-HE of 2013, dated 21st May 2013 as also para II titled "prescribed qualification" of the Advertisement Notification to the extent it deleted M.Phil Degree from the prescribed qualification, set aside The court opined that Rules of 2008 could not be amended by an executive order and Government Order No. 254-HE of 2013, dated 21st May 2013 was not to stand legal scrutiny. Petitioners with M.Phil Degree but without NET/SLET/SET were held eligible for advertised posts, under Rules of 2008. The writ petition Nos. 1080/2013, 1027/2013, 1127/2013 and 1140/2013 were disposed of vide Judgment dated 26.12.2013 in terms of Judgment dated 3rd October 2013 whereby SWP No. 1288/2013 and SWP No. 1400/2013 were disposed of.

4. One of the options available to respondents 1 to 4 was to allow petitioners and other aspirants with M.Phil Degree but without NET/SLET/SET clearance, to participate in the selection process pursuant to Advertisement Notification of 09-PSC (DR-P) of 2013, dated 23rd May 2013, finalize selection process and make appointments against the advertised posts.

5. Respondents, however conceived a different idea to deal with the matter. They noticing that their effort to restrict eligibility criteria to the candidates with Post Graduate Degree in the concerned discipline with NET/SLET/SET clearance or with Ph.D. was set aside on the ground that Rules of 2008 were amended by executive order and not having recourse to the procedures prescribed under law, decided to amend Rules of 2008 in accordance with the law governing amendment to the statutory Rules made in exercise of powers under Section 124 Constitution of Jammu and Kashmir.