JUDGMENT
E.S. Da Silva, J.
1. By this writ petition the petitioner challenges firstly the refusal on the part of respondent No. 2 to call the petitioner for interview to the post of Assistant Professor in Operative Dentistry in the Goa Dental College and Hospital and subsequently by way of amendment the jurisdiction of the said respondent No. 2 to hold interviews and give its consultation on the matter of selection to the post of Assistant Professor in the aforesaid Dental College. The petitioner has passed Bachelor of Dental Surgery (B.D.S.) Examination held by the University of Bombay in November, 1979 and also the Examination in Master of Dental Surgery (M.D.S.) in Conservative Dentistry (Operative Dentistry) Branch held by the University of Bombay in October, 1984. He is also registered as a Dentist with the Maharashtra State Dental Council under the provisions of the Dentists Act, 1948 with effect from February 21, 1980. The petitioner worked as Clinical Assistant at Nair Hospital Dental college, Bombay from April 2, 1980 to October 1, 1980, thereafter as Junior Resident in the Department of Dental and Oral Surgery of Goa Medical College from November 1, 1980 to June 30, 1981 and as Clinical Assistant (part-time) from April 1, 1982 to June 17, 1982, as Registrar (full time) from June 18, 1982 to December 17, 1982 and again as Registrar from December 20, 1982 to March 31, 1983 in the Department of Operative Dentistry, Nair Hospital Dental College, Bombay. The petitioner was also appointed thereafter as Lecturer in Operative Dentistry in Goa Dental College and Hospital, Bambolim on ad-hoc basis with effect from November 21, 1983. Then he was appointed also as Assistant Professor in Operative Dentistry in Goa Dental College and Hospital again on ad-hoc basis with effect from April 19, 1986. Of late the petitioner was appointed to the post of Professor in Operative Dentistry in Goa Dental College and Hospital on ad-hoc basis with effect from September 6, 1988.
2. On December 29, 1989 the respondent No. 2 advertised different posts under the Government of Goa and invited applications therefor. Consequent upon this advertisement applications were invited for the posts in Goa Dental College and Hospital being (i) 2 Lecturers in Operative Dentistry; (ii) 1 Assistant Professor in Operative Dentistry; and (iii) 1 Professor in Operative Dentistry. On January 29, 1990 the petitioner made applications for the posts of Lecturer, Assistant Professor and professor in Operative Dentistry. By letter dated July 12, 1990 the petitioner was called for interview for the post of Lecturer which was held on July 23, 1990. As the petitioner reliably learnt from the College that interview for the post of Assistant Professor would be held on September 13, 1990 and he had neither received any call for the said interview upto the time of filing of the petition nor any intimation from the said respondent No. 2 regarding rejection of his application, he apprehended that this action on the part of the respondent No. 2 in holding the interview without sending a call to the petitioner to appear from the interview was arbitrary, discriminatory and likely to cause to him irreparable loss. Hence the petition which was filed by him under Articles 226 and 227 of the Constitution.
3. It was further the case of the petitioner that the educational qualifications for the post of Assistant Professor as mentioned in the advertisement were as under:
“Essential :
(i) A qualification included in Part I or Part II of the schedule to the Dentists Act, 1948 (16 of 1948);
(ii) Postgraduate qualification in Dentistry i.e. M.D.S. from a recognised institution or equivalent;
(iii) Should be registered with Dental Council;
(iv) 3 years teaching experience after post-graduation as Lecturer, in Dentistry in a recognised Dental College/Medical college with Dental wing/Dental Institution.
Desirable:
(i) Research work/Publication.
(ii) Knowledge of Konkani”.
The age limit prescribed was “not exceeding 40 years”. The petitioner claimed that he possessed all the essential qualifications stated in the said advertisement for the post of Assistant Professor since his B.D.S. degree stands included in the Schedule to the Dentists act and besides the petitioner knows Konkani which is his mother tongue and he is 32 years old, born on September 25, 1975 thus fulfilling all the requirements to be called for interview for the post for which he was applied. Subsequent to the filing of this application the petitioner by way of amendment added to the petitioner further pleadings by stating that the Goa Public service Commission (Exemption from Consultation) Regulations, 1988 had been amended by Notification No. 18/11/87-PER published in the Official Gazette, Series I No. 21, dated August 23, 1990 whereby the Schedule to Regulation 4 which refers to the exemption from consultation from the Commission in regard to any matter mentioned in sub-clauses (a) and (b) of Clause (3) of Article 320 of the Constitution in certain cases of services and posts specified in the Schedule to those Regulations was enlarged so as to include in the Schedule under Clause (ii) all teaching posts in Government Colleges where approval of the University of Goa was required for appointment to such posts. It was the case of the petitioner that the Goa Dental College and Hospital being a Government College and the said post of Assistant Professor being a teaching post where approval of the Goa University was required for the appointment to such post was thus coming into the purview of such Schedule and therefore prior to the selection of such post no consultation was required from the respondent No. 2. It was also pleaded by the petitioner that the said amended Schedule had been already acted upon by the respondent No. 1 and in a similar case of the Education Department the Government had held that in the case of teaching posts the Education Department related to the Goa College of Architecture and the Government had held that approval of the University is necessary and consultation of respondent No. 2 was exempted. The petitioner came to know about this fact namely of the letter dated December 7, 1990 written by the Education Department to respondent No. 2 and only thereafter he learnt that there was a Notification published in the Gazette in respect whereof he was not aware at the time of filing the petition. Since that Notification was going to the root of the matter and taking away the jurisdiction of respondent No. 2 which it possessed at the time of issue of the advertisement, the petitioner added additional prayers after challenging the jurisdiction of respondent No. 2 from declaring the results of the interview for the post of Assistant Professor in Operative Dentistry or to declare bad in law for want of jurisdiction any result of the interview so declared by the respondent No. 2.
4. At this stage it may be pertinent to record that when rule was issued after filing the petition, interim relief was also granted in his favour and the respondent No. 2 was directed to call the petitioner for interview to the post of Assistant Professor, but commanded that the result of the interview should not be declared until further orders. Pursuant to the said directions, the petitioner appeared for interview before the respondent No. 2 and being so the original prayers made by the petitioner seeking to restrain the respondent No. 2 from holding any interview to the said post of Assistant Professor in Operative Dentistry without calling the petitioner and alternatively to direct the respondent to hold the interview giving equal opportunity to the petitioner to appear for the same became infructuous and academic in nature once this relief did not survive any more consequent upon the interim orders of this Court.
5. However, as far as the first ground of attack made by Shri Usgaonkar, learned Counsel for the petitioner, it was urged by him that the respondent No. 2 was not justified and acted wrongly in not calling the petitioner for interview for the post of Assistant Professor to which he had duly applied in time. It was submitted by the learned Counsel that the petitioner was fulfilling all the conditions and requirements for appointment to the post of Assistant Professor and was therefore fully eligible to be called for interview for the purpose of being considered for such appointment after due consultation given by respondent No. 2. The learned Counsel further submitted that besides satisfying all the legal qualifications required for the post he was holding also sufficient experience in the teaching line in terms of the requirement necessary for the appointment namely three years teaching experience after post-graduation as Lecture in Dentistry in a recognised Dental College/Medical College with Dental Wing/Dental Institution. It was submitted by the learned Counsel in this respect that the petitioner had worked as a Lecturer and appointed on 21-11-1983 for two years, four months and 18 days, thereafter as Assistant Professor to which he was appointed on 19-4-1986 for 2 years, four months and 29 days and lastly as a Professor to which he was appointed on 6-9-1988 for one year, three months and 23 days in a total period of six years, one month and 20 days. Therefore, there was no reason for the petitioner having been denied an opportunity of appearing for interview before the respondent No. 2 for the purpose of being considered for selection to the post of Assistant Professor solely on the ground that he had not fulfilled the condition of having worked for three years as a Lecturer with regard to his teaching experience.
6. Shri B. D’Costa, learned Counsel appearing for respondent No. 2 had however joined issue with Shri Usgaonkar in this respect. It was submitted by Shri D’Costa that the experience required for the post of Assistant Professor was three years teaching experience as Lecturer and therefore, any experience gained by the petitioner as Assistant Professor and Professor should not be taken into consideration for the purpose of qualifying the petitioner as having sufficient experience to make him eligible to appear for the interview and being considered for the post of Assistant Professor. Admittedly the petitioner was not having experience of three years as Lecturer since he has worked in that capacity for a period of only two years, 4 months and 18 days. Being so, no grievance could be made by him for not having been called for interview on the ground that he was not having sufficient experience to be appointed as Assistant Professor. Shri D’Costa urged that experience in the post of Assistant Professor and Professor taking into consideration that the petitioner had held these posts on ad-hoc basis should not be considered on the same footing as experience which the petitioner could have gained if he had held the post of Lecturer for a full period of three years.
7. We are however constrained to disagree with Shri B. D’Costa in this regard. Nowhere in the Recruitment Rules any differentiation has been made with regard to the fact of a candidate having held the post of Lecturer on ad-hoc basis and/or regular basis. Being so if the petitioner had held the post of Lecturer for three years on ad-hoc basis it does not seem that Mr. D’Costa could have had any case against the petitioner in respect of his ineligibility for the purpose of appearing for interview before respondent No. 2 to the post of Assistant Professor. On the other side it is difficult to accept Shri D’Costa’s contention that the experience obtained by the petitioner in the post of Asst. Professor and Professor cannot be treated as experience if not on a higher footing at least on the same footing to the experience obtained by the petitioner during the time he worked as a Lecturer. To be noted that the post occupied by the petitioner as Assistant Professor and Professor was also in the same category of Operative Dentistry. In our view what appears to be aimed at by the Government while framing the Recruitment Rules in respect of the qualifications and experience is that any candidate to the post of Assistant Professor should have experience of at least three years in the teaching line so as to enable him to be eligible to the post to which he applied as Assistant Professor.
8. Therefore, we are of the opinion that by denying the opportunity to the petitioner to appear for interview and by failing to invite him for the interview the respondent No. 2 was wrong and gave cause of action to the petitioner to seek appropriate remedy before the Court which ultimately he got by way of interim relief and which enabled the petitioner to appear for the interview which was held by the respondents on 13th September, 1990. However, consequent upon the petitioner having appeared before respondent No. 2 for interview nothing survives from the prayers made by the petitioner in this regard and thus no relief remains to be granted to him accordingly.
9. It was next contended by Shri Usgaonkar that after the amendment introduced consequent upon the Goa Public Service Commission (Exemption from Consultation) Regulations, 1988 by virtue of the Notification dated 13th August, 1990 published in Government Gazette dated 23rd August, 1990 the respondent No. 2 ceased to have jurisdiction to hold consultation in respect of all teaching posts wherein the approval of the University was required and the post in Goa Dental College and Hospital which is a Government College being one of such teaching posts in respect whereof the university’s approval was required the same were to be deemed as covered by the enlarged scope of the Schedule namely of its Clause (ii). This amendment according to Shri Usgaonkar, should be treated as retrospective in nature since it was touching the very point of jurisdiction of the respondent No. 2 to hold such consultation. Being so the respondent No. 2 had no authority to hold interviews for the post advertised in the Dental College and Hospital and even if such interviews had been held any selection made by respondent No. 2 should be held as null and invalid for lack of jurisdiction. Reliance was placed by the learned Counsel in the case of I.J. Divakar and others v. Government of Andhra Pradesh and another, , which was a case dealing substantially with a similar situation wherein a post within the purview of State Public Service Commission was advertised and a subsequent order of the Government was published withdrawing it from Commission’s purview. The said order was challenged by the candidate who applied for the post. Shri Usgaonkar invited our attention to the following passage of the judgment, at its para 4 :
“The only contention urged was that at the time when the advertisement was issued the post of Junior Engineer was within the purview of the Commission and even if at a later date the post was withdrawn from the purview of the Commission it could not have any retrospective effect. There is no merit in this contention and we are broadly in agreement with the view of the Tribunal that inviting the applications for a post does not itself create any right to the post in the candidate who in response to the advertisement makes an application. He only offers himself to be considered for the post. His application only makes him eligible for being considered for the post. ……………………………..As stated earlier, the only contention is that as in respect of the post of Junior Engineer an advertisement was already issued and the Commission was in the process of selecting candidates, the power under the proviso to Clause (3) of Article 320 could not be exercised. We see no substance in this contention and the contention must be negatived.”
10. From the above passage the learned Counsel tried to impress upon us that the Court had held in this case that the effect of the order withdrawing from the purview of the Commission the right of being consulted for selection of the post thus exempting the Commission from giving such consultation should be applied retrospectively. We are however unable to accede to this submission of the learned Counsel. A bare reading of the aforesaid judgment makes it clear that the issue of the order being retrospectively or not did not directly arises for adjudication in the aforesaid decision. What was really considered is that the advertisement for the post was not creating any right to the candidate for being appointed to such post and it was only an offer. By applying for the post consequent upon the advertisement the candidate was only offering himself to be appointed for the post and his application was making him eligible for being considered for the said post. It was not creating any right to the said post. Therefore, the question of applicability of the order retrospectively does not necessarily arise from the fact that by enlarging the scope of the exemption from consultation the Government has withdrawn the jurisdiction of the respondent No. 2 to hold such consultation.
11. In this respect we are in agreement with the learned Advocate General and the learned Counsel for respondent No. 2 Shri D’Costa that the action of the Government in withdrawing from the purview of consultation the cases for appointment to posts in the Dental College such exemption from consultation is of the nature of a prohibition. It was only an act exercised by the Government in its discretion and by enlarging the scope of the exemption the Government had only chosen not to the consult/respondent No. 2 in such cases. However nothing prevented the Government inspite of that to refer a case covered within the said schedule to the respondent No. 2 for proper consultation if the Government deemed it fit and necessary. The fact by itself would show that this was a matter to be dealt with internally between the Government and respondent No. 2 and by no stretch of imagination would create a right for any candidate to challenge the withdrawal and/or propriety on the part of the Government to enlarge the scope of the exemption or create any right for the candidate to demand that the respondent No. 2 should not hold any consultation in respect of a post included in the Schedule. As it was pointed out by learned Advocate General every law has to be deemed as prospective in nature unless it is made retrospective and/or has to be so construed by implication. In our judgment the authority cited by Shri Usgaonkar appears to be misplaced in the special facts and circumstances available and not attracted to the instant case in question.
12. We therefore rule that the effect of the amending notification is to be applied only prospectively and therefore the respondent No. 2 by holding the interview inspite of such Notification with the full knowledge and awareness of the Government has not committed any error of jurisdiction making it amenable to scrutiny under Article 226 of the Constitution.
13. In this view of the matter of the added prayers made by the petitioner to restrain respondent No. 2 from declaring the results of the interview for the post of Assistant Professor in Operative Dentistry to which the petitioner admittedly appeared after the interim orders passed by this Court or to declare the results of such interview as bad in law for want of jurisdiction are also to be rejected. Thus nothing survives as far as the petitioner is concerned with regard to the prayers framed by him in this petition. However we must take into consideration that consequent upon the interim orders of this Court the petitioner appeared for interview and we were told that such interview was held by respondent No. 2 on 13th September, 1990.
14. Shri B. D’Costa has made a submission that the results of the interview have been already finalised and then kept sealed consequent upon the directions given by this Court. He therefore ordered the respondent No. 2 to declare the results already finalised in respect of the interview held by him on 13th September, 1990 including the results concerning the petitioner.
15. With the above observations rule is hereby discharged with no order as to costs.