PUBLIC SERVICE COMMISSION, UTTARANCHAL vs. JAGDISH CHANDRA SINGH BORA .

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 JUDGMENT Commission, Uttaranchal, Haridwar (hereinafter referred to as ‘PSCU’) challenging the judgment dated nd 2 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 1 Page 1 weightage of 10 bonus marks to the trained apprentice candidates as per the “Uttaranchal Subordinate Service [Emergency Direct Recruitment (First

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 JUDGMENT 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 st 31 March, 2006 wherein the High Court has allowed the Writ Petition Nos. 446 of 2006, 275 of 2004, 166 of 2 Page 2 2004, 138 of 2006, 333 of 2004 and 775 of 2006 in nd terms of the earlier judgment dated 2 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 nd State Government on 2 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 JUDGMENT after the State of Uttaranchal came into existence th th on 9 November, 2000. On 12 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 3 Page 3 th 12 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

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 JUDGMENT 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 4 Page 4 consideration.

(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. JUDGMENT (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. 5 Page 5 (10) Commission shall call the candidates for interview on the basis of minimum qualifying marks in the written examination.

(12) Commission shall forward the merit list to the Department of Personnel.” th 5. On 27 November, 2001, the State issued an advertisement for filling up the vacancies of Junior JUDGMENT 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 th examination was held by the IIT Roorkee on 12 January, 2002. The result of the written examination th was declared on 10 July, 2003. 6 Page 6 st 6. It appears that a notification was issued on 31

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 JUDGMENT 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. 7 Page 7 3. Brief name, Start and application/effect (i) The Rules shall be called Uttaranchal

(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 JUDGMENT 5(4) The marks of interview to be added to marks of the written examination for selection. 5(4) for selection marks scored by the candidate in written exam and interview to be added 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 8 Page 8 and interview. 7. The candidates who had cleared the written

st notification dated 31 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 JUDGMENT th 29 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 th and forwarded to the State Government on 15 May, 9 Page 9 2004.

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 & JUDGMENT Anr. Vs. U.P. Parivahan Nigam Shishukhs Berozgar 1 Sangh & Ors. In the aforesaid judgment, the following directions were given :- “(1) Other things being equal, a trained apprentice should be given preference over direct recruits. 1 (1995) 2 SCC 1 1 Page 10

(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. JUDGMENT Rajya Vidyut Parishad Apprentice Welfare 2 Association & Anr. Vs. State of U.P. & Ors. 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 2 (2000) 5 SCC 438 11 Page 11 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

employment exchange. 11. The High Court has allowed the writ petition solely th on the ground that the clarification dated 29 April, 2004 could not have the effect of amending the st statutory rules framed under Article 309 on 31 July, th 2003. It is held that the direction issued on 29 April, 2004 related to the same selection to which the amended rules of 2003 were applicable. Therefore, the JUDGMENT th G.O. dated 29 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 1 Page 12 secured by them in the written examination and the interview.

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 JUDGMENT 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 1 Page 13 advertisement. Under these rules, no preference was given to the trained apprenticeship. Even the advertisement did not indicate any preference to the

out that 2001 rules became ineffective with effect th from 11 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 st force on 31 July, 2003. Therefore, the High Court has erred in treating the same to be as amendment of the JUDGMENT 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. 1 Page 14 3 Karnataka Public Service Commission & Ors . 4 P.Mahendran & Ors. Vs. State of Karnataka & Ors. 5 and Sonia Vs. Oriental Insurance Co. Ltd. & Ors .

participated in the selection process cannot be permitted to challenge the same. He submitted that th the final select list was published on 15 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 & 6 Ors. Vs. Shakuntala Shukla & Ors. and Manish 7 Kumar Shahi Vs. State of Bihar & Ors. JUDGMENT 15. Mr. Hansaria further pointed out that 841 posts th had been advertised on 27 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 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 1 Page 15 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

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 th issuance of executive instruments issued on 29 April, 2004. He further submitted that in this case no retrospective effect is being given to the 2003 Rules as JUDGMENT 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. 8 Kurlawala (dead) by Lrs. & Anr . 8 (2004) 6 SCC 455 1 Page 16 17. We have considered the submissions made by the learned counsel for the parties.

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 th came into existence on 9 November, 2000. The State nd sent a letter/request on 2 November, 2001 to PSCU to hold a written examination to fill up large number of posts which have become available on creation of the th new State. On 27 November, 2001, the State Government advertised 841 posts of Jr. Engineers in JUDGMENT 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 1 Page 17 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

posts. th 19. The Rules were notified on 12 November, 2001. Within two weeks, the necessary advertisement was th issued on 27 November, 2001. The 2001 Rules specifically provided as under:- 1. Brief name, Start and application/effect (i) The Rules shall be called Service JUDGMENT (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 1 Page 18 Subordinate Engineering Services. (iv) The Rules shall be applicable to all the

(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 th 27 November, 2001 were governed by the 2001 Rules. JUDGMENT 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 1 Page 19 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

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 JUDGMENT 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 th advertisement on 27 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 2 Page 20 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

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 th on 10 July, 2003. The interview was conducted by th nd the PSCU from 18 December, 2003 to 22 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 JUDGMENT 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 2 Page 21 the same shall become ineffective after the process of recruitment is completed. Thereafter, the selected candidates shall be governed by the Service Rules and

th This makes it abundantly clear that on 12 November, 2002, the 2001 Rules ceased to exist. st 23. However, on 31 July, 2003, the 2003 Rules were framed. A bare perusal of the title of the Rules would st show that the Rules came into force on 31 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 JUDGMENT 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 2 Page 22 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

st came into force on 31 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 th 11 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 JUDGMENT 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 2 Page 23 was governed by the 2001 Rules and the th advertisement issued by the State on 27 November, 2001. We have already earlier concluded that although

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 th thereof with effect from 11 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 th advertisement dated 11 November, 2001. JUDGMENT 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 2 Page 24 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

on the directions of the High Court, the rules came st into force on 31 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 th 11 November, 2001. Candidates had applied on the basis of the aforesaid advertisement. As noticed earlier, the advertisement in this case was issued on th 27 November, 2001. It had set out the criteria of JUDGMENT selection laid down in the 2001 Rules which were th notified on 12 November, 2001. Written examination in respect of aforesaid advertisement was held by IIT, th Roorkee on 12 January, 2002. The result of the th written examination was declared on 10 July, 2003. st The 2003 Rules were notified on 31 July, 2003. The th interviews were conducted between 18 December, 2 Page 25 nd 2003 to 22 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

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 st force on 31 July, 2003. In such circumstances, it would be wholly impermissible to alter the selection th criteria which was advertised on 27 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 JUDGMENT 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)]. 2 Page 26 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

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 JUDGMENT ‘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 2 Page 27 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

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 JUDGMENT 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 2 Page 28 candidates No.2 to 10 have not secured marks at par with any direct recruit candidate. On the basis of the th clarification dated 29 April, 2004, candidate No.1 will

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 JUDGMENT 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, 2 Page 29 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

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 JUDGMENT 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, 3 Page 30 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

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 JUDGMENT 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 th dated 27 November, 2001. Whilst the process of selection was still in progress, the High Court rendered 3 Page 31 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

st effect from 31 July, 2003. Consequently, when the interviews were being conducted, the PSCU was faced with the ‘amendment rules’ of 2003. Therefore, the th PSCU by a letter dated 5 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 th Government wrote to the PSCU on 29 April, 2004, on the basis of legal advice that preference to the trained JUDGMENT 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. 3 Page 32 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,

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 th 29 April, 2004 would not have the effect of superceding, amending or altering the 2003 Rules; it JUDGMENT 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 3 Page 33 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

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. JUDGMENT ………………………….J. [Surinder Singh Nijjar] …………………………..J. [Ranjana Prakash Desai] New Delhi; March 3, 2014. 3 Page 34 JUDGMENT 3 Page 35