Service - High court order to add 10 marks “Uttaranchal Subordinate Service [Emergency Direct Recruitment (First Amendment)] Rules, 2003” in the selection held by UPSC; - All selection were made under 2001 rules - Apex court held that These rules were notified vide Gazette Notification No.1973/One-2001 dated 12th November, 2001.“The Rules shall become ineffective after the process of Recruitment is completed as it has never been promulgated. Candidates selected on the basis of Rules shall be governed by Service Rules and G.Os. as applicable before in the Govt.” and Under 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. and as such the Apex court set aside the order of High court =
By the aforesaid judgment, the High Court has given a
direction to the appellant to give weightage of 10 bonus marks to
the trained apprentice candidates as per the “Uttaranchal
Subordinate Service [Emergency Direct Recruitment (First
Amendment)] Rules, 2003” in the selection held by UPSC; and after
adding 10 marks, merit list of the selected candidates be prepared
and recommended for the appointment to the Government.
It has
also been directed that all the successful candidates shall be
given appointment in the remaining vacancies of the Junior
Engineers in the various departments of the Government and the
instrumentalities of the State according to the merit list of
apprentices selected in the merit list. It has been further
directed that the aforesaid order shall survive for one year from
the date of its publication.=
The PSCU had been
established in May, 2001 soon after the State of Uttaranchal came
into existence on 9th November, 2000.
On 12th
November, 2001, the Government of Uttaranchal framed Uttaranchal
Subordinate Engineering Service (Emergency Direct Recruitment)
Rules, 2001 under proviso to Article 309 of the Constitution of
India. These rules were notified vide Gazette Notification
No.1973/One-2001 dated 12th November, 2001.
“The Rules shall become ineffective after the process of
Recruitment is completed as it has never been promulgated.
Candidates selected on the basis of Rules shall be governed by
Service Rules and G.Os. as applicable before in the Govt.”
Conclusion
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.
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.
Under 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)].
2014 (March . Part) judis.nic.in/supremecourt/filename=41288
SURINDER SINGH NIJJAR, RANJANA PRAKASH DESAI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3034 OF 2007
Public Service Commission, Uttaranchal …Appellant
VERSUS
Jagdish Chandra Singh Bora & Anr. Etc. …..Respondents
With
CIVIL APPEAL NO. 3036 OF 2007
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. These appeals have been filed by the Public Service Commission,
Uttaranchal, Haridwar (hereinafter referred to as ‘PSCU’)
challenging the judgment dated 2nd March, 2006 of the High Court of
Uttaranchal at Nainital rendered in Writ Petition Nos. 149, 129,
135, 136, 137, 147, 148, 162, 169, 255, 302, 186, and 300 of 2004.
By the aforesaid judgment, the High Court has given a
direction to the appellant to give weightage of 10 bonus marks to
the trained apprentice candidates as per the “Uttaranchal
Subordinate Service [Emergency Direct Recruitment (First
Amendment)] Rules, 2003” in the selection held by UPSC; and after
adding 10 marks, merit list of the selected candidates be prepared
and recommended for the appointment to the Government. It has
also been directed that all the successful candidates shall be
given appointment in the remaining vacancies of the Junior
Engineers in the various departments of the Government and the
instrumentalities of the State according to the merit list of
apprentices selected in the merit list. It has been further
directed that the aforesaid order shall survive for one year from
the date of its publication.
2. Civil Appeal No.3036 of 2007 impugns the judgment of the High Court
of Uttaranchal at Nainital dated 31st March, 2006 wherein
the High Court has allowed the Writ Petition Nos. 446 of 2006, 275
of 2004, 166 of 2004, 138 of 2006, 333 of 2004 and 775 of 2006 in
terms of the earlier judgment dated 2nd March, 2006 which is
subject matter of Civil Appeal No.3034 of 2007.
3. In the year 2001, large number of vacancies of Junior Engineers
existed in various departments of the State of Uttaranchal.
Therefore, a proposal was sent by the State Government on 2nd
November, 2001 to the PSCU for conducting a written examination.
The written examination had to be conducted by IIT, Roorkee as the
PSCU did not have the necessary infrastructure. The PSCU had been
established in May, 2001 soon after the State of Uttaranchal came
into existence on 9th November, 2000. On 12th
November, 2001, the Government of Uttaranchal framed Uttaranchal
Subordinate Engineering Service (Emergency Direct Recruitment)
Rules, 2001 under proviso to Article 309 of the Constitution of
India. These rules were notified vide Gazette Notification
No.1973/One-2001 dated 12th November, 2001. It appears
that these rules were framed only for filling up large number of
post of Junior Engineers which became available upon the creation
of State of Uttaranchal. Therefore, the rules specifically provided
as follows :-
“The Rules shall become ineffective after the process of
Recruitment is completed as it has never been promulgated.
Candidates selected on the basis of Rules shall be governed by
Service Rules and G.Os. as applicable before in the Govt.”
4. Rule 5 which dealt with the manner in which the candidate was to be
selected and the merit list was to be prepared reads as under :-
“4. Conduct method of Examination
(1) Appointing authorities shall inform the no. of SC, ST and
OBC vacancies in all the categories and decide the vacancies to
Dept. of Personnel of State Govt. who will publish the same in
the newspapers.
`
(2) The application for selection shall be invited in prescribed
format of the Govt. for consideration.
(3) Even if the relevant Service Rules regarding the issue or
Govt. Orders are contrary, then also with the permission of IIT
Roorkee shall conduct the examination for the Direct Recruitment
of Senior Engineers for the candidates.
(4) The marks of interview to be added to marks of the written
examination for selection.
(5) Written examination shall be conducted by the IIT Roorkee
according to Rules Prescribed by the State Govt.
(6) Marks for the interview shall be determined by the State
Govt. which shall not be more than 12.5"/o of the written
examination.
(7) Question papers of the written examination shall be printed
both in Hindi and English languages.
(8) Written examination shall be conducted at place on time as
decided by IIT Roorkee.
(9) IIT Roorkee shall prepare list on the basis of written
examination and shall make it available to the Public Service
Commission, Uttaranchal.
(10) Commission shall call the candidates for interview on the
basis of minimum qualifying marks in the written examination.
(11) Commission shall prepare the merit list as shown in the
written examination and interview. If two or more candidates
score equal marks their the candidate scoring more marks in
written exam shall be preferred. If marks in written exam are
also equal the candidate of more age shall be preferred and to
be kept in merit list accordingly. The names of candidates in
merit list shall not be more than 25% of the total no. of
vacancies.
(12) Commission shall forward the merit list to the
Department of Personnel.”
5. On 27th November, 2001, the State issued an advertisement for
filling up the vacancies of Junior Engineers, which was accompanied
by a prescribed format of the application form. The terms and
conditions of the advertisement were strictly in conformity with
the 2001 rules. The written examination was held by the IIT Roorkee
on 12th January, 2002. The result of the written examination was
declared on 10th July, 2003.
6. It appears that a notification was issued on 31st July,
2003, superseding all the existing rules and regulations of
selection process in regard to direct recruitment of Junior
Engineer in various departments. The notification reads as under :
“Govt. of Uttaranchal
Department of Personnel
Notification Misc.
Dated 31.07.2003
No. 1097/one-2 2003 Hon’ble Governor under Article 309
Constitution of India for different Engineering Departments the
effective Services Rules are encroached once and Rules framed for
direct recruitment of Junior Engineers as follows:
Uttaranchal Subordinate Engineering Services (Emergency Direct
Recruitment) (First Amendment) Rules 2003.
3. Brief name, Start and application/effect
(i) The Rules shall be called Uttaranchal Subordinate
Engineering Services (Emergency Direct Recruitment) (First Amendment)
Rules 2003.
(ii) The Rules shall be applicable-with immediate effect.
(iii) Substitution of Rule 5 (4)
(iv) Rule 5(4) given in column 1 to be substituted by Rule
given in column 2 in Uttaranchal Subordinate Engineering Services
(Emergency Direct Recruitment) Rules 2001.
|Present Rule |Substituted Rule |
|5(4) The marks of |5(4) for selection marks scored|
|interview to be added to marks |by the candidate in written |
|of the written examination for |exam and interview to be added |
|selection. |but for the preparation of |
| |merit list such candidates who |
| |had completed apprenticeship in|
| |the concerned department to |
| | |
| |be given bonus of 10 marks in |
| |the total marks scored in |
| |written exam and interview. |
7. The candidates who had cleared the written examination were called
for interview from 18th December, 2003 to 22nd
December, 2003. In the notification dated 31st July, 2003, Rule
5(4) provided that for the purpose of selection, the marks obtained
in the written examination would be added in the marks obtained in
the interview, but for preparing the final merit list, the
candidates who had completed apprenticeship would be given extra 10
marks in addition to the marks obtained by them in the written
examination and interview. However, by letter dated 29th
April, 2004, it was clarified that 10 marks were to be added to the
total marks obtained by the candidates who had completed
apprenticeship, only where the direct recruit candidate and the
apprentice candidate stood on equal footing. Thereafter, the
selected list of the successful candidates was prepared and
forwarded to the State Government on 15th May, 2004.
8. Aggrieved by the non-grant of additional 10 marks, large number of
unsuccessful candidates in the apprenticeship category filed a
number of petitions, seeking a writ in the nature of mandamus
directing the appellant to make a selection after giving benefit of
10 additional marks to all the candidates who had completed
apprenticeship. In the writ petition filed before the High Court,
the petitioners had claimed that the preference had to be given to
the trained apprentices in view of the directions by this Court in
the case of U.P. State Road Transport Corporation & Anr. Vs. U.P.
Parivahan Nigam Shishukhs Berozgar Sangh & Ors.[1] In the
aforesaid judgment, the following directions were given :-
“(1) Other things being equal, a trained apprentice should be
given preference over direct recruits.
(2) For this, a trainee would not be required to get his name
sponsored by any employment exchange. The decision of this
Court in Union of India v. N. Hargopal would permit this.
(3) If age bar would come in the way of the trainee, the same
would be relaxed in accordance with what is stated in this
regard, if any, in the service rule concerned. If the service
rule be silent on this aspect, relaxation to the extent of
the period for which the apprentice had undergone training
would be given.
(4) The training institute concerned would maintain a list of
the persons trained yearwise. The persons trained earlier
would be treated as senior to the persons trained later. In
between the trained apprentices, preference shall be given to
those who are senior.”
9. These directions were reiterated by this Court in U.P. Rajya Vidyut
Parishad Apprentice Welfare Association & Anr. Vs. State of U.P. &
Ors.[2]
10. On the basis of the aforesaid judgments, the trained apprentices
claimed to be a class apart. It was claimed that the classification
between the apprentices and others would not be only for the
purpose of giving preferential treatment in the selection but also
for giving relaxation in upper age limit, relaxation in the matter
of getting their names sponsored by the employment exchange.
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 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 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 directions 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 Service Commission & Ors.[3] P.Mahendran
& Ors. Vs. State of Karnataka & 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 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]
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 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 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]
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 IIT, 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.
(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
Recruitment 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 comprehensive criteria
for making a selection to the post of Jr. Engineer. The written
examination was to be conducted by the IIT, 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 of the written examination was to be made
available by IIT, 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 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 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, 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 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 were framed. A bare
perusal of the title of the Rules would show that the Rules came
into force on 31st July, 2003. The Rules supersede all existing
Rules but Rule 5(4) of 2001 Rules is transposed by Rule 5(4) of the
2003 Rules. Rule 5(4) of the 2001 Rules provided that marks of
interview shall be added to the marks of written examination for
selection. But Rule 5(4) of the 2003 Rules provides that the marks
obtained in the written 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 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 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 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 2001 rules, and
advertisement dated 11th November, 2001.
25. Furthermore, the High Court in Subhash Chandra’s case (supra) had
only reiterated the directions which have been given by this Court
in the case of UPSRTC (supra). Inspite of those directions being
in existence, no preference had been provided to the trained
apprentices in the 2001 Rules. We had 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 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 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 IIT, 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 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 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. Thus, by adding 10 marks to the
total of the written examination 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 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 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%; 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 would be 60%. This would put him/her over and above, all other
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 rank to candidate No.1 in the inter-se
merit. In such a situation, 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 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 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 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 rules’ of 2003. Therefore, the PSCU by a letter dated
5th April, 2004 sought clarification as to whether 2001 rules would
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 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 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. Inspite of accepting the submission of Mr.
C.U. Singh that 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 the respondents, the trained apprentices,
under the 2001 Rules. 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. For 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.
………………………….J.
[Surinder Singh Nijjar]
…………………………..J.
[Ranjana Prakash
Desai]
New Delhi;
March 3, 2014.
-----------------------
[1] (1995) 2 SCC 1
[2] (2000) 5 SCC 438
[3] (1990) 3 SCC 157
[4] (1990) 1 SCC 411
[5] (2007) 10 SCC 627
[6] (2002) 6 SCC 127
[7] (2010) 12 SCC 576
[8] (2004) 6 SCC 455
-----------------------
32
By the aforesaid judgment, the High Court has given a
direction to the appellant to give weightage of 10 bonus marks to
the trained apprentice candidates as per the “Uttaranchal
Subordinate Service [Emergency Direct Recruitment (First
Amendment)] Rules, 2003” in the selection held by UPSC; and after
adding 10 marks, merit list of the selected candidates be prepared
and recommended for the appointment to the Government.
It has
also been directed that all the successful candidates shall be
given appointment in the remaining vacancies of the Junior
Engineers in the various departments of the Government and the
instrumentalities of the State according to the merit list of
apprentices selected in the merit list. It has been further
directed that the aforesaid order shall survive for one year from
the date of its publication.=
The PSCU had been
established in May, 2001 soon after the State of Uttaranchal came
into existence on 9th November, 2000.
On 12th
November, 2001, the Government of Uttaranchal framed Uttaranchal
Subordinate Engineering Service (Emergency Direct Recruitment)
Rules, 2001 under proviso to Article 309 of the Constitution of
India. These rules were notified vide Gazette Notification
No.1973/One-2001 dated 12th November, 2001.
“The Rules shall become ineffective after the process of
Recruitment is completed as it has never been promulgated.
Candidates selected on the basis of Rules shall be governed by
Service Rules and G.Os. as applicable before in the Govt.”
Conclusion
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.
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.
Under 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)].
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.
For 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.
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.
For 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.
2014 (March . Part) judis.nic.in/supremecourt/filename=41288
SURINDER SINGH NIJJAR, RANJANA PRAKASH DESAI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3034 OF 2007
Public Service Commission, Uttaranchal …Appellant
VERSUS
Jagdish Chandra Singh Bora & Anr. Etc. …..Respondents
With
CIVIL APPEAL NO. 3036 OF 2007
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. These appeals have been filed by the Public Service Commission,
Uttaranchal, Haridwar (hereinafter referred to as ‘PSCU’)
challenging the judgment dated 2nd March, 2006 of the High Court of
Uttaranchal at Nainital rendered in Writ Petition Nos. 149, 129,
135, 136, 137, 147, 148, 162, 169, 255, 302, 186, and 300 of 2004.
By the aforesaid judgment, the High Court has given a
direction to the appellant to give weightage of 10 bonus marks to
the trained apprentice candidates as per the “Uttaranchal
Subordinate Service [Emergency Direct Recruitment (First
Amendment)] Rules, 2003” in the selection held by UPSC; and after
adding 10 marks, merit list of the selected candidates be prepared
and recommended for the appointment to the Government. It has
also been directed that all the successful candidates shall be
given appointment in the remaining vacancies of the Junior
Engineers in the various departments of the Government and the
instrumentalities of the State according to the merit list of
apprentices selected in the merit list. It has been further
directed that the aforesaid order shall survive for one year from
the date of its publication.
2. Civil Appeal No.3036 of 2007 impugns the judgment of the High Court
of Uttaranchal at Nainital dated 31st March, 2006 wherein
the High Court has allowed the Writ Petition Nos. 446 of 2006, 275
of 2004, 166 of 2004, 138 of 2006, 333 of 2004 and 775 of 2006 in
terms of the earlier judgment dated 2nd March, 2006 which is
subject matter of Civil Appeal No.3034 of 2007.
3. In the year 2001, large number of vacancies of Junior Engineers
existed in various departments of the State of Uttaranchal.
Therefore, a proposal was sent by the State Government on 2nd
November, 2001 to the PSCU for conducting a written examination.
The written examination had to be conducted by IIT, Roorkee as the
PSCU did not have the necessary infrastructure. The PSCU had been
established in May, 2001 soon after the State of Uttaranchal came
into existence on 9th November, 2000. On 12th
November, 2001, the Government of Uttaranchal framed Uttaranchal
Subordinate Engineering Service (Emergency Direct Recruitment)
Rules, 2001 under proviso to Article 309 of the Constitution of
India. These rules were notified vide Gazette Notification
No.1973/One-2001 dated 12th November, 2001. It appears
that these rules were framed only for filling up large number of
post of Junior Engineers which became available upon the creation
of State of Uttaranchal. Therefore, the rules specifically provided
as follows :-
“The Rules shall become ineffective after the process of
Recruitment is completed as it has never been promulgated.
Candidates selected on the basis of Rules shall be governed by
Service Rules and G.Os. as applicable before in the Govt.”
4. Rule 5 which dealt with the manner in which the candidate was to be
selected and the merit list was to be prepared reads as under :-
“4. Conduct method of Examination
(1) Appointing authorities shall inform the no. of SC, ST and
OBC vacancies in all the categories and decide the vacancies to
Dept. of Personnel of State Govt. who will publish the same in
the newspapers.
`
(2) The application for selection shall be invited in prescribed
format of the Govt. for consideration.
(3) Even if the relevant Service Rules regarding the issue or
Govt. Orders are contrary, then also with the permission of IIT
Roorkee shall conduct the examination for the Direct Recruitment
of Senior Engineers for the candidates.
(4) The marks of interview to be added to marks of the written
examination for selection.
(5) Written examination shall be conducted by the IIT Roorkee
according to Rules Prescribed by the State Govt.
(6) Marks for the interview shall be determined by the State
Govt. which shall not be more than 12.5"/o of the written
examination.
(7) Question papers of the written examination shall be printed
both in Hindi and English languages.
(8) Written examination shall be conducted at place on time as
decided by IIT Roorkee.
(9) IIT Roorkee shall prepare list on the basis of written
examination and shall make it available to the Public Service
Commission, Uttaranchal.
(10) Commission shall call the candidates for interview on the
basis of minimum qualifying marks in the written examination.
(11) Commission shall prepare the merit list as shown in the
written examination and interview. If two or more candidates
score equal marks their the candidate scoring more marks in
written exam shall be preferred. If marks in written exam are
also equal the candidate of more age shall be preferred and to
be kept in merit list accordingly. The names of candidates in
merit list shall not be more than 25% of the total no. of
vacancies.
(12) Commission shall forward the merit list to the
Department of Personnel.”
5. On 27th November, 2001, the State issued an advertisement for
filling up the vacancies of Junior Engineers, which was accompanied
by a prescribed format of the application form. The terms and
conditions of the advertisement were strictly in conformity with
the 2001 rules. The written examination was held by the IIT Roorkee
on 12th January, 2002. The result of the written examination was
declared on 10th July, 2003.
6. It appears that a notification was issued on 31st July,
2003, superseding all the existing rules and regulations of
selection process in regard to direct recruitment of Junior
Engineer in various departments. The notification reads as under :
“Govt. of Uttaranchal
Department of Personnel
Notification Misc.
Dated 31.07.2003
No. 1097/one-2 2003 Hon’ble Governor under Article 309
Constitution of India for different Engineering Departments the
effective Services Rules are encroached once and Rules framed for
direct recruitment of Junior Engineers as follows:
Uttaranchal Subordinate Engineering Services (Emergency Direct
Recruitment) (First Amendment) Rules 2003.
3. Brief name, Start and application/effect
(i) The Rules shall be called Uttaranchal Subordinate
Engineering Services (Emergency Direct Recruitment) (First Amendment)
Rules 2003.
(ii) The Rules shall be applicable-with immediate effect.
(iii) Substitution of Rule 5 (4)
(iv) Rule 5(4) given in column 1 to be substituted by Rule
given in column 2 in Uttaranchal Subordinate Engineering Services
(Emergency Direct Recruitment) Rules 2001.
|Present Rule |Substituted Rule |
|5(4) The marks of |5(4) for selection marks scored|
|interview to be added to marks |by the candidate in written |
|of the written examination for |exam and interview to be added |
|selection. |but for the preparation of |
| |merit list such candidates who |
| |had completed apprenticeship in|
| |the concerned department to |
| | |
| |be given bonus of 10 marks in |
| |the total marks scored in |
| |written exam and interview. |
7. The candidates who had cleared the written examination were called
for interview from 18th December, 2003 to 22nd
December, 2003. In the notification dated 31st July, 2003, Rule
5(4) provided that for the purpose of selection, the marks obtained
in the written examination would be added in the marks obtained in
the interview, but for preparing the final merit list, the
candidates who had completed apprenticeship would be given extra 10
marks in addition to the marks obtained by them in the written
examination and interview. However, by letter dated 29th
April, 2004, it was clarified that 10 marks were to be added to the
total marks obtained by the candidates who had completed
apprenticeship, only where the direct recruit candidate and the
apprentice candidate stood on equal footing. Thereafter, the
selected list of the successful candidates was prepared and
forwarded to the State Government on 15th May, 2004.
8. Aggrieved by the non-grant of additional 10 marks, large number of
unsuccessful candidates in the apprenticeship category filed a
number of petitions, seeking a writ in the nature of mandamus
directing the appellant to make a selection after giving benefit of
10 additional marks to all the candidates who had completed
apprenticeship. In the writ petition filed before the High Court,
the petitioners had claimed that the preference had to be given to
the trained apprentices in view of the directions by this Court in
the case of U.P. State Road Transport Corporation & Anr. Vs. U.P.
Parivahan Nigam Shishukhs Berozgar Sangh & Ors.[1] In the
aforesaid judgment, the following directions were given :-
“(1) Other things being equal, a trained apprentice should be
given preference over direct recruits.
(2) For this, a trainee would not be required to get his name
sponsored by any employment exchange. The decision of this
Court in Union of India v. N. Hargopal would permit this.
(3) If age bar would come in the way of the trainee, the same
would be relaxed in accordance with what is stated in this
regard, if any, in the service rule concerned. If the service
rule be silent on this aspect, relaxation to the extent of
the period for which the apprentice had undergone training
would be given.
(4) The training institute concerned would maintain a list of
the persons trained yearwise. The persons trained earlier
would be treated as senior to the persons trained later. In
between the trained apprentices, preference shall be given to
those who are senior.”
9. These directions were reiterated by this Court in U.P. Rajya Vidyut
Parishad Apprentice Welfare Association & Anr. Vs. State of U.P. &
Ors.[2]
10. On the basis of the aforesaid judgments, the trained apprentices
claimed to be a class apart. It was claimed that the classification
between the apprentices and others would not be only for the
purpose of giving preferential treatment in the selection but also
for giving relaxation in upper age limit, relaxation in the matter
of getting their names sponsored by the employment exchange.
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 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 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 directions 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 Service Commission & Ors.[3] P.Mahendran
& Ors. Vs. State of Karnataka & 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 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]
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 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 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]
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 IIT, 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.
(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
Recruitment 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 comprehensive criteria
for making a selection to the post of Jr. Engineer. The written
examination was to be conducted by the IIT, 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 of the written examination was to be made
available by IIT, 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 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 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, 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 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 were framed. A bare
perusal of the title of the Rules would show that the Rules came
into force on 31st July, 2003. The Rules supersede all existing
Rules but Rule 5(4) of 2001 Rules is transposed by Rule 5(4) of the
2003 Rules. Rule 5(4) of the 2001 Rules provided that marks of
interview shall be added to the marks of written examination for
selection. But Rule 5(4) of the 2003 Rules provides that the marks
obtained in the written 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 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 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 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 2001 rules, and
advertisement dated 11th November, 2001.
25. Furthermore, the High Court in Subhash Chandra’s case (supra) had
only reiterated the directions which have been given by this Court
in the case of UPSRTC (supra). Inspite of those directions being
in existence, no preference had been provided to the trained
apprentices in the 2001 Rules. We had 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 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 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 IIT, 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 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 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. Thus, by adding 10 marks to the
total of the written examination 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 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 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%; 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 would be 60%. This would put him/her over and above, all other
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 rank to candidate No.1 in the inter-se
merit. In such a situation, 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 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 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 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 rules’ of 2003. Therefore, the PSCU by a letter dated
5th April, 2004 sought clarification as to whether 2001 rules would
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 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 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. Inspite of accepting the submission of Mr.
C.U. Singh that 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 the respondents, the trained apprentices,
under the 2001 Rules. 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. For 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.
………………………….J.
[Surinder Singh Nijjar]
…………………………..J.
[Ranjana Prakash
Desai]
New Delhi;
March 3, 2014.
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[1] (1995) 2 SCC 1
[2] (2000) 5 SCC 438
[3] (1990) 3 SCC 157
[4] (1990) 1 SCC 411
[5] (2007) 10 SCC 627
[6] (2002) 6 SCC 127
[7] (2010) 12 SCC 576
[8] (2004) 6 SCC 455
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