Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. The High Court has allowed the writ petition solely on the ground that the clarification dated 29th April, 2004 could not have the effect of amending the statutory rules framed under G Article 309 on 31st July, 2003. It is held that the direction issued on 29th April, 2004 related to the same selection to which the amended rules of 2003 were applicable. Therefore, the G.O. dated 29th April, 2004 being in the nature of executive instructions could not supplant the statutory rules but could only 2. (2000) s sec 438. PUBLIC SERVICE COMM., UTTARANCHAL v. JAGDISH CHANDRA SINGH BORA ETC. [SURINDER SINGH NIJJAR, J.] supplement the statutory rules. With this reasoning, the High Court issued a writ in the nature of mandamus directing the PSCU to give weightage of additional 10 marks to the apprentices by adding the same to the total marks secured by them in the written examination and the interview.
12. We have heard the learned counsel for the parties.
13. Mr. Vijay Hansaria, learned counsel appearing for the appellant, has submitted that the High Court has misread the ~irections issued by this Court in the case of U.P. State Road Transport Corporation & Anr. (supra). He further submitted that the selection was governed by the 2001 rules which had been framed only for making selection on the large number of posts that have become available on the creation of Uttaranchal. He submits that the 2001 Rules specifically provided that it shall be applicable only for the direct recruitment in the year 2002. The process for this recruitment had commenced when the advertisement was Issued in the year 2001. All the respondents had applied pursuant to the aforesaid advertisement. Under these rules, no preference was given to the trained apprenticeship. Even the advertisement did not indicate any preference to the trained apprentices. Learned senior counsel pointed out that 2001 rules became ineffective with effect from 11th November, 2002 as provided in Rule 6 thereof. Mr. Hansaria further submits that the 2003 rules have been wrongly read by the High Court to be an amendment of the 2001 rules. After making a reference to the 2003 Rules, learned senior counsel pointed out that the 2003 Rules came into force on 31st July, 2003. Therefore, the High Court has erred in treating the same to be as amendment of the 2001 rules, which no longer existed.
14. Learned senior counsel further submitted that 2003 rules cannot be given retrospective effect as·no such express provision has been made to that effect. He relies on the judgment in N. T. Devin Katti & Ors. Vs. Karnataka Public A Service Commission & Ors. 3 P. Mahendran & Ors. Vs. State of Kamataka & Ors. 4 and Sonia Vs. Oriental Insurance Co. Ltd. & Ors. 5 He also submits that all the respondents having participated in the selection process cannot be permitted to challenge the same He submitted that the final select list was B published on 15th May, 2004. Only when the respondents did not get selected on merit, they filed the writ petitions in June, 2004. He relies on the judgments in Chandra Prakash Tiwari & Ors. Vs. Shakuntala Shukla & Ors. 6 and Manish Kumar Shahi Vs. State of Bihar & Ors. 7 c
15. Mr. Hansaria further pointed out that 841 posts had been advertised on 27th November, 2001. All the posts have been duly filled up soon after selection. Therefore, the High Court committed an error of jurisdiction in issuing the directions to prepare the merit list after adding 10 marks to the marks D obtained by the trained apprentices. He submitted that in any event, all the vacancies having been filled up immediately after the publication of the select list, the mandamus issued by the High Court can not possibly be implemented.
16. Mr. C.U. Singh, appearing for the respondents submitted that vested rights of the respondents under 2003 Rules could not have been taken away by issuance of executive instruments issued on 29th April, 2004. He further submitted that in this case no retrospective effect is being given to the F 2003 Rules as these Rules were framed in respect of antecedent facts. He relies on the judgment of this Court in Ramji Purshottam (dead) by Lrs. & Ors. Vs. Laxmanbhai D. Kurlawala (dead) by Lrs. & Anr. 8 3. (1990) 3 sec 157. 4. (1990) 1 sec 411. 5. c2007) 10 sec 627 6. c2002) 6 sec 127. 7. c2010) 12 sec 576 H 8 c2004) 6 sec 455. PUBLIC SERVICE COMM .. UTTARANCHAL v. JAGDISH CHANDRA SINGH BORA ETC. [SURINDER SINGH NIJJAR, J ]
17. We have considered the submissions made by the · learned counsel for the parties.
18. In our opinion, it is not at all necessary to examine all the submissions made by the learned counsel for the parties. The 2001 Rules were specifically framed to cater for an emergency as the State of Uttaranchal came into existence on 9th November, 2000. The State sent a letter/request on 2nd November, 2001 to PSCU to hold a written examination to fill up large number of posts which have become available on creation of the new State. On 27th November, 2001, the State , Government advertised 841 posts of Jr. Engineers in different departments throughout the State. There was such an urgent need for recruitment that since the infrastructure of the PSCU was not in existence, a request was made that the posts be taken out of the purview of the PSCU on this one occasion, and the written examination be conducted by llT, Roorkee. PSCU agreed to such procedure but limited only to the holding of the written examination. The interviews were still to be held by the PSCU. The Rules of 2001 were specifically framed for making the selection of the candidates, who would have applied for the available posts.
19. The Rules were notified on 12th November, 2001. Within two weeks, the necessary advertisement was issued on 27th November, 2001. The 2001 Rules specifically provided as under:- 1. Brief name, Start and application/effect (i) The Rules shall be called Service (Emergency Direct Recruitment) Rules, 2001. (ii) The Rules shall be applicable with immediate effect (iii) The Rules shall be applicable only for the direct recruitment in the year 2002 for Subordinate Engineering Services. (2014} 3 S.C.R. (iv) The Rules shall be applicable to all the Department for Direct Recruitment of Junior Engineers. (v) The rules shall have over riding effect on all the applicable service Rules for the purpose of Direct Recruitmont of Junior Engineer for once only.
20. A perusal of the aforesaid would clearly show that all the candidates including the respondents, who applied in response to the advertisement dated 27th November, 2001 were governed by the 2001 Rules. Rule 4 provides C comprehensive criteria for making a selection to the post of Jr. Engineer. The written examination was to be conducted by the llT, Roorkee. The selection was to be made on the basis of the total marks obtained by the candidates in the written examination and the interview. The list of successful candidates D of the written examination was to be made available by llT, Roorkee to PSCU. Thereafter, the PSCU was to call the candidates for interview on the basis of minimum qualifying marks in the written examination. Section 4(11) provides that the PSCU shall prepare a merit list by adding marks obtained E by the candidates in the written examination and the interview. If two or more candidates secured equal marks, the candidates securing more marks in the written examination shall be preferred. In case, the marks obtained by two candidates in written examination are also equal, the older candidate shall F be preferred to the younger. Therefore, it is evident that consciously the State had not provided for any preference to be given to the trained apprentices under the Rules. Keeping in view the provisions contained in the Rules, the State Government issued an advertisement on 27th November, G 2001. The advertisement also did not provide for any weightage to be given to the trained apprentices. All the candidates including the respondents participated in the selection process, being fully aware that no preference will be given to the trained apprentices. This was inspite of the directions issued by this Court in UPSRTC's case (supra). Therefore, it cannot be said PUBLIC SERVICE COMM .. UTTARANCHAL v. JAGDISH CHANDRA SINGH BORA ETC. [SURINDER SINGH NIJJAR, J.] that any accrued or vested right had accrued to the trained apprentices, under the 2001 Rules.
21. The result of the written examination was declared on 10th July, 2003. The interview was conducted by the PSCU from 18th December, 2003 to 22nd December, 2003. Thereafter, only the result was to be declared and the appointments were to be made on the basis of merit obtained by the candidates in the selection process.
22. As noticed earlier, the 2001 Rules specifically provided that the Rules are applicable only for the direct recruitment in the year 2002 for subordinate engineering service. The Rules also make it clear that the same shall become ineffective after the process of recruitment is completed. Thereafter, the selected candidates shall be governed by the Service Rules and the Government Orders applicable in the Government. This makes it abundantly clear that on 12th November, 2002, the 2001 Rules ceased to exist. 23 .. However, on 31st July, 2003, the 2003 Rules wer~ framed. A bare perusal of the title of the Rules would~ show.1(h3J :IE the Rules came into force on 31st July, 2003. T-Re' Rules supersede all existing Rules but Rule 5(~1rR~~~gPJ1 ~s is transposed by Rule 5(4) of the 2003 Rul~l\) ~~1:.E ~~1)2pt~.J1~ 2001 Rules provided that marks of interview sh~llJ?;~ ~~d 1~~lp the marks of written examination for selectio8. ,~ut:§l.!l,e 5~1.l,flf 'f the 2003 Rules provides that the marks obtained in the w.~iJ!~O examination and the marks obtained in the interview shall be increased by 10 extra marks in case of trained apprentices. In our opinion, the respondents could have taken no advantage · of these Rules. The Selection process was under the 2001 Rules. The Rules of 2001 as well as advertisement did not provide for any additional marks/weightage to be given to the trained apprentices. The Rules of 2003 came into force on 31st July, 2003. No retrospective effect can be given to the same without any express provision to that effect being made in the Rules. This apart, the 2001 Rules that were said to be amended A were, in fact, non-existent. The 2001 Rules expired on 11th November, 2001 in terms of Rule 6 thereof. The High Court, in our opinion, was in error in holding that 2003 Rules were applicable to the process of selection which had commenced in 2001 under the 2001 Rules. 24. In our opinion, the High Court has wrongly concluded that as the 2003 Rules had been framed in obedience to the directions issued by a Single Judge of the Uttaranchal High Court in Writ Petition No.44 (SB) of 2002 titled Subhash Chandra Vs. State of Uttaranchal, they would relate to the C selection which was governed by the 2001 Rules and the advertisement issued by the State on 27th November, 2001. We have already earlier concluded that although 2003 Rules are titled as 'First Amendment Rules', the same is a misnomer. The 2003 Rules could not have the effect of amending the 2001 D Rules which had already ceased to exist in terms of Rule 6 thereof with effect from 11th November, 2001. The respondents, therefore, cannot claim that any accrued or vested right of the trained apprentices has been taken away by the 2004 clarification, in relation to the selection governed by the E 2001 rul13s, and advertisement dated 11th November, 2001. ~5. 1 Furthermore, the High Court in Subhash Chandra's case (suprafhad only reiterated the directions which have been gil/ert by tt)is Court in the case of UPSRTC (supra). lnspite of F tHcis·e directions being in existence, no preference had been provided to the trained apprentices in the 2001 Rules. We haa~ earlier also noticed that the respondents, unsuccessful candidates who were trained apprentices, woke up only after the select list was published by the PSCU. We may also point G out that even if the 2003 Rules have been framed on the directions of the High Court, the rules came into force on 31st July, 2003. Therefore, by no stretch of imagination can it be said that the aforesaid rules were applicable to the selection which was governed under the 2001 Rules and the advertisement dated 11th November, 2001. Candidates had applied on the PUBLIC SERVICE COMM., UTTARANCHAL v. JAGDISH CHANDRA SINGH BORA ETC. [SURINDER SINGH NIJJAR, J ] basis of the aforesaid advertisement. As noticed earlier, the advertisement in this case was issued on 27th November, 2001. It had set out the criteria of selection laid down in the 2001 Rules which were notified on 12th November, 2001. Written examination in respect of aforesaid advertisement was held by llT, Roorkee on 12th January, 2002. The result of the written examination was declared on 10th July, 2003. The 2003 Rules were notified on 31st July, 2003. The interviews were conducted between 18th December, 2003 to 22nd December, 2003. Under the 2001 Rules, the marks to be given for the interview could not be more than 12.5% of the written examination. Under c the 2001 Rules, there was no provision for adding 10 marks to the total marks of written test and interview in the category of trained apprentices. This was sought to be introduced by the 2003 Rules which came into force on 31st July, 2003. In such circumstances, it would be wholly impermissible to alter the selection criteria which was advertised on 27th November, 2001. Since no preference had been given to the trained apprentices, many eligible candidates in that category may not have applied. This would lead to a clear infraction of Article 14 of the Constitution of India. To this extent, we accept the submission made by Mr. Hansaria. Selection procedure can not be altered after the process of selection had been completed. [See: K. Manjusree Vs. State of Andhra Pradesh & Anr. (2008) 3 SCC 512 (para 27)). 26. We are not able to accept the submission of Mr. Hansaria that the benefit of 10 additional marks to the trained apprentices is limited only to those trained apprentices who have secured equal marks with one or more candidates in the category of direct recruits. The learned senior counsel seeks to support the aforesaid submission from the directions issued by this Court in the case of UPSRTC (supra) which was as follows: "Other things being equal, a trained apprentice should be given preference over direct recruits." The only natural meaning of the aforesaid phrase 'other things being equal' is that all the candidates must have been subjected to the same selection process, i.e., same written test and interview. Further that their inter-se merit is determined on the same criteria, applicable to both categories. In this case, it B is the aggregate of the marks secured by the candidate in the written test and the interview. The additional 10 marks are given to the apprentices as they are generally expected to secure lesser marks than the direct recruits in the written examination. Tilus, by adding 10 marks to the total of the written examination c of the trained apprentices, they are sought to be put at par with the direct recruits. Therefore, necessarily this preference is to be given to all the trained apprentices across the board. It cannot be restricted only to those trained apprentices who fortuitously happen to secure the same marks as one or more 0 of the direct recruits. In case the additional 10 marks are restricted only to such trained apprentice candidates, it would result in hostile discrimination. This can be best demonstrated by giving an illustration. Assume there are ten candidates belonging to E trained apprentices category. Let us say that candidate No.1 secures 50% total marks on the basis of the marks obtained in the written test plus interview, whilst candidates No.2 to 10 secure total marks ranging from 51 to 59. But candidate No.1 has secured total marks identical to a direct recruit, i.e., 50%; F whereas candidates No.2 to 10 have not secured marks at par with any direct recruit candidate. On the basis of the clarification dated 29th April, 2004, candidate No 1 will get the benefit of 10% weightage and candidates No.2 to 10 will not. Therefore, after weightage is given to candidate No.1, his/her total marks G would be 60%. This would put him/her over and above, all other i candidates, i.e., candidates No.2 to 10 who have secured higher marks than candidate No.1 who actually has lesser marks, if no weightage is given to his/her. Therefore, candidate Nos. 2 to 10 securing higher marks would be shown at a lower H rank to candidate No.1 in the inter-se merit. In such a situation, PUBLIC SERVICE COMM, UTTARANCHAL v. JAGDISH CHANDRA SINGH BORA ETC. [SURINDER SINGH NIJJAR, J] a trained apprentice candidate securing lesser marks than his colleague would not only steal a march over the direct recruits but also over candidates who got more marks within his own category. Such an interpretation would lead to absurd consequences. This is not the intention of giving the preference to the trained apprentices. The interpretation sought to be placed by Mr. Hansaria would, in fact, create a sub- classification within the class of trained apprentice candidates. Such a sub-classification would have no rationale nexus, with the object sought to be achieved. The object of the preference is to give weightage to the apprentices so that the State does c not lose the benefit of the training given to them, at the State expense. This would be a clear breach of Article 14 of the Constitution of India. 27. The only direction issued by this Court in UPSTRC's case (supra) was to give preference to the trained apprentices over direct recruits. No direction is given in the judgment as to how the preference is to be given. It was left entirely to the discretion of the Government to make the necessary provision in the statutory rules. In that case, number of candidates who had successfully completed apprenticeship under the Apprenticeship Act, 1961 claimed appointment upon completion. In support of their claim, the candidates relied on number of Government Orders, which according to them held out a promise that on successful completion of apprenticeship, they would be given employment. The High Court issued a writ in the nature of Mandamus directing that such candidate should be given employment. In such circumstances, UPSRTC came before this Court and submitted that there was no obligation on the State Government to ensure employment to any trained apprentices. This Court analyzed the various Government Circulars and came to the conclusion that there is no promise held out for the candidates of definite employment. However, in order to ensure that the training given to the apprentices at the State expense is utilized, certain directions were issued, which have been reproduced earlier. As noticed earlier, inspite A of the aforesaid directions, no preference was given to the trained apprentices in the selection process which was governed by the 2001 Rules, and the advertisement dated 27th November, 2001. Whilst the process of selection was still in progress, the High Court rendered its judgment in the case of B Subhash Chandra (supra). For the reasons which are not made clear in the pleadings or by the learned counsel for any of the parties, the 2003 Rules were framed and enforced with effect from 31st July, 2003. Consequently, when the interviews were being conducted, the PSCU was faced with the 'amendment c rules' of 2003. Therefore, the PSCU by a letter dated 5th April, 2004 sought clarification as to whether 2001 rules wou:j be applicable or Rules of 2003 would be applicable, to the selection process. In these circumstances, the State Government wrote to the PSCU on 29th April, 2004, on the 0 basis of legal advice that preference to the trained apprentices is to be given only if the two candidates secured equal marks. The legal opinion clarified that the amended rules of 2003 would not be applicable to the selection process which had already started. Therefore, the selection process under the 2001 Rules was excluded. 28. However, we find substance in the submission made by Mr. C.U. Singh that 2004 clarification would not have the effect of amending 2003 Rules. Undoubtedly, 2004 clarification is only an executive order. It is settled proposition of law that F the executive orders cannot supplant the rules framed under the proviso to Article 309 of the Constitution of India. Such executive orders/instructions can only supplement the rules framed under the proviso to Article 309 of the Constitution of India. lnspite of accepting the submission of Mr. C.U. Singh that G clarification dated 29th April, 2004 would not have the effect of superceding, amending or altering the 2003 Rules; it would not be possible to give any relief to the respondents. The criteria under the 2003 Rules governs all future recruitments. We have earlier already concluded that no vested right had accrued to H the respondents, the trained apprentices, under the 2001 Rules. PUBLIC SERVICE COMM., UTTARANCHAL v. JAGDISH CHANDRA SINGH BORA ETC. [SURINDER SINGH NIJJAR. J.] We do not accept the submission of Mr. C.U. Singh that the claim of the respondents (trained apprentices) would be covered under the 2001 Rules by virtue of the so called amendment made by 2003 Rules. We are of the opinion that the High Court committed an error, firstly, in holding that the · 2003 rules are applicable, and secondly, not taking into consideration that all the posts had been filled up by the time the decision had been rendered. 29; F.or the reasons stated above, we are of the opinion that the judgment rendered by the High Court is unsustainable in law and the same is hereby set aside. The appeals are allowed with no order as to costs. D.G. Appeals allowed.