JUDGMENT
Kumar Rajaratnam, J.
1. The appellant being aggrieved by the order dated 16-3-1998 passed in C.P. No. 885 of 1996 and the order dated 21-11-1996 passed in W.P. No. 382 of 1995 by the learned Single Judge has filed this writ appeal.
2. The facts very briefly are, the appellant was working as Director of Physical Education on temporary basis in the 1st respondent-University since 1984. The University issued notification dated 8-6-1994 notified application for the post of Director of Physical Education and with respect to other posts to be filled up by the University. The appellant applied for the post in order that he may be selected on a regular basis.
3. The University after considering the case of the contesting respondent selected the appellant and appointed him as Director of Physical Education in the University by an order dated 19-11-1994. The 2nd respondent, who had also applied for the post challenged the selection of the appellant in W.P. No. 382 of 1995.
4. The learned Single Judge held that the appellant did not possess a high second class Master’s Degree as prescribed in the notification and set aside the appointment at the instance of the 2nd respondent, Aggrieved by this, the appellant filed a review petition seeking review of the order dated 21-11-1996. In the review petition it was urged that as per the Cadre and Recruitment Rules of the University only a Master’s Degree was necessary and no Master’s Degree with high second class was necessary as per the Cadre and Recruitment Rules. Realising this, the learned Single Judge issued notice to the writ petitioner and granted an interim order and posted the matter for hearing. Since the learned Single Judge had retired it came before another learned Judge. The learned Judge by an order dated 16-3-1998 rejected the review petition. It is in these circumstances, the writ appeal has been filed by the person who was appointed by the University.
5. The learned Single Judge held that the appellant was not qualified to be appointed as Director of Physical Education only on the ground that he did not possess a high second class Master’s Degree as stipulated in the notification. The appellant possessed only a second class with
54.8% marks. The relevant portion of the paper publication reads as follows.–
“Director of Physical Education Rs. 4500-7300
(UGC scale)
Unreserved
01
(a) A Master’s Degree in Physical Education (High Second Class) with Diploma in Sports
coaching from recognised Institutes;
OR
A
Master’s Degree in
Physical Education (High Second Class) with a record of having represented his University at the University level/State in the National
Championship”.
(emphasis supplied)
No doubt on the basis of the paper publication the appellant was not qualified to be selected and the 2nd respondent has obtained a high second class.
6. However, it was not brought to the notice of the learned Single Judge that as per the statute enshrined in the Cadre and Recruitment Rules of the University the words “high second class” does not find a place.
7. It was further submitted by Mr. Subba Rao, the learned Senior Counsel for the appellant that the appellant was working on a temporary basis as Director of Physical Education from 1984 till he was appointed on a regular basis on 19-11-1994.
8. A perusal of the statute reads as follows.–
"Director of Physical Education
700- 1300 (UGC scale 660-1300 (State scale)
(a) Master's Degree in Physical Education
(b) Experience of not less than 10 years in responsible position in an Educational Institution
Either by direct recruitment or by promotion by selection from the cadre of physical
culture instructor".
9. It is common ground that the statute does not specify that an applicant to the post of Director of Physical Education should possess a high second class. All that is required is a Master’s Degree in Physical Education and a minimum of ten years experience in responsible position in any educational institution.
10. Mr. Hiremath, the learned Counsel for the contesting respondent, who succeeded before the learned Single Judge submitted that there were certain UGC guidelines which stipulated that a candidate should possess a high second class to be appointed as Director of Physical Education.
11. Neither the University nor the contesting respondent has been able to produce any such guidelines before the Court.
12. Of course a notification was issued on 19th of October, 1995 by the University Grants Commission holding that the minimum qualification would be a Master’s Degree in Physical Education with at least 55% marks. This notification dated 19-10-1995 became part of the statute after the appointment was made. The notification also permitted certain relaxations of the Rules. The notification further held that those Regulations mentioned in the notification shall not be applicable to such cases where the selection through duly constituted Selection Committees for making appointments to the posts of Assistant Director, Deputy Director and Director of Physical Education and Sports in Universities; deemed to be universities, colleges have been made prior to the enforcement of these regulations. One thing is, the notification had come into force after the selection was made. The other thing is that this notification itself stipulates that it shall not be applicable where selection is made by duly constituted Selection Committees.
13. In this case, as on the date of the appointment viz., on 19-11-1994 the statute did not provide for “high second class” in the Master’s Degree. In every respect the appellant was fully qualified to be selected and the University selected the appellant strictly in accordance with the statute. At the time of selection as per the statute the appellant was not disqualified from being considered for the post of Director of Physical Education. It is only in the year 1995 the amendment was made requiring a candidate to have obtained at least 55 marks in the Master’s Degree. This notification cannot come to the aid of the contesting respondent since this notification was issued after the selection and appointment was made appointing the appellant after due consideration.
14. The Supreme Court in Dr. Chetkar Jha v. Dr. Vishwanath Prasad Verma and Ors., , has pronounced that any restriction made in the advertisement contrary to statute cannot be the basis for selection as the advertisement must be consistent with the statute. In other words the Supreme Court held that it is only the statute that will be binding on the applicants if there is a conflict between the statute and the notification in the press.
15. In that view of the matter the judgment of the learned Single Judge and the order of the learned Single Judge in C.P. No. 885 of 1996 are set aside and the writ petition stands dismissed. The writ appeal is allowed accordingly. No costs.