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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
N. PAUL VASANTHAKUMAR, ALOK ARADHE, JJ.
Rash Pal Singh and ors. – Appellant
Vs.
Kamal Kishore and ors. – Respondent
LPA (SW) Nos. 29 of 2017, 94, 31, 32, 34, 41, 40 of 2016, 95, 96 of 2015
Decided on : 28-02-2017
Recruitment - Jammu and Kashmir Education (Gazetted) College Service Recruitment Rules, 2008 - 2008 (7) JKS JK-221, University Grants Commission Act, 1956 - Regulations of 2010 - NET/SLET/SET - M. Phil - Advertisement Notification - Amendment - Vested Right - Prospective Nature of Amendment - Overruling of Judgment - Applicability of UGC Regulations - Per incuriam - Binding Precedent
Fact of the Case:
The case involved the validity of the judgment dated 11.06.2015 and 30.12.2015, concerning the recruitment of Assistant Professors in Government Degree Colleges of Jammu and Kashmir. The dispute revolved around the eligibility criteria, amendment of rules, withdrawal of advertisement notifications, and the applicability of UGC regulations.
Finding of the Court:
The court found that the State Government had the right to withdraw the Notification dated 23.03.2013 and that the candidates did not have a vested right for consideration for appointment based on the Advertisement Notification dated 23.05.2013. The amendment in the Rules of 2008 was deemed prospective in nature and did not relate back to the original enactment. The court also held that the State Legislature did not directly overrule the judgment of the Court dated 03.10.2013. Additionally, the UGC Regulations of 2010 were found to apply to the State of Jammu and Kashmir. The judgment rendered by the Srinagar Wing of the Court was not considered per incuriam, and the court emphasized the binding nature of precedent.
Issues: The issues included the State Government's right to withdraw the Notification, the candidates' vested right for consideration, the prospective nature of the amendment in the Rules, the overruling of the Court's judgment, the applicability of UGC Regulations, and the per incuriam status of the Srinagar Wing's judgment.
Ratio Decidendi: The court held that the State Government had the right to withdraw the Notification, candidates did not have a vested right for consideration, the amendment in the Rules was prospective, the State Legislature did not directly overrule the judgment, UGC Regulations applied to Jammu and Kashmir, and the Srinagar Wing's judgment was not per incuriam. The court also emphasized the binding nature of precedent.
Final Decision: The court quashed the judgments dated 11.06.2015 and 30.12.2015 and directed the appellants to conclude the selection process expeditiously in accordance with the law.
In this bunch of appeals, the appellants in LPA(SW) No. 23/2016, LPA(SW) No. 40/2016, LPA(SW) No. 41/2016, LPA(SW) No. 94/2016 and LPA(SW) No. 95/2015 have assailed the validity of judgment dated 11.06.2015 passed in SWP No. 1539/2014, whereas the appellants in LPA(SW) No. 31/2015, LPA(SW) No. 32/2015 and LPA(SW) No. 34/2015, have assailed the validity of judgment dated 30.12.2015 passed in SWP No. 1650/2014 and SWP No. 1651/2014, which have been allowed in view of judgment dated 11.06.2015 passed in SWP No. 1539/2014. Since common questions of law and fact arise for consideration in this bunch of appeals, they were heard analogously and are being decided by this common judgment.
2. Recruitment to the post of Assistant Professor in various Government Degree Colleges of the State is governed by the Jammu and Kashmir Education (Gazetted) College Service Recruitment Rules, 2008 (hereinafter referred to as the Rules of 2008), which have been notified vide SRO 423 of 2008 dated 23.12.2008, in terms whereof a candidate with M. Phil would be eligible for the post, even if, he/she had not qualified the National Eligible Test/State Level Eligible Test/State Eligible Test conducted by the University Grants Commission/CSIR/ Association of Indian University (AIU) University of Jammu/Kashmir. An Advertisement Notification dated 23.05.2013 was issued, by which applications were invited for selection of 1289 posts of Assistant Professor in various disciplines in the Government Degree Colleges of the State. As per the Advertisement Notification, the prescribed qualification was Master Degree in the subject concerned with at least 55% marks (50% marks in case of Scheduled Caste/Scheduled Tribe and Physically and Visually Handicapped candidates) or its equivalent grade of "B" in the seven point scale from an Indian University or an equivalent course/degree from an Indian/Foreign University with NET/SLET conducted by the UGC/CSIR/ Association of Indian University (AIU) University of Kashmir/Jammu or Ph.D. In the note appended to the Advertisement Notification, the selection process was required to be undertaken strictly in accordance with the terms of SRO 423 of 2008 dated 23.12.2008 read with Government order Nos. 252-HE of 2012 dated 30.05.2012, 254-HE of 2013 dated 21.05.2013 and Communication No. Edu. Coll/Cord/774/2013 dated 22.03.2013. In view of Government order dated 21.05.2013, the candidates with M. Phil degree were not eligible for consideration in pursuance of the Advertisement Notification dated 23.05.2013.
3. The respondents 1 to 5 and 31, who are appellants in LPA(SW) No. 95/2015, approached this Court by filing writ petitions, namely, SWP No. 1288/2013 and SWP No. 1400/2013 and challenged the note appended to Advertisement Notification dated 23.05.2013 and order dated 21.05.2013. The writ petitions were allowed by a Bench of this Court vide order dated 03.10.2013 and it was held that the respondents in the aforesaid writ petitions could not have prescribed the qualification, which was contrary to the Rules of 2008 and the same could not have been amended by way of an executive order. Accordingly, the writ petitions were disposed of with the following directions:
"For the reasons mentioned above, the impugned orders bearing No. 254-HE of 2013 dated 21.05.2013 and the note introduced in the advertisement notification No. 9-PSC of 2013 dated 23.05.2013 are quashed. The petitioners are held entitled to consideration for appointment on the basis of the M.Phil degree possessed by them in accordance with the Jammu and Kashmir Education (Gazetted) College Service Recruitment Rules, 2008"
4. In exercise of the powers conferred under section 26 of the University Grants Commission Act, 1956, the University Grants Commission has framed the regulations, namely, University Grants Commission (minimum qualification for appointmen
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