PUBLIC SERVICE COMMISSION, UTTARANCHAL Vs JAGDISH CHANDRA SINGH BORA .
Bench: SURINDER SINGH NIJJAR,RANJANA PRAKASH DESAI
Case number: C.A. No.-003034-003034 / 2007
Diary number: 12032 / 2006
Advocates: JATINDER KUMAR BHATIA Vs
K. S. RANA
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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
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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
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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
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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
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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.
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(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.
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6. It appears that a notification was issued on 31 st
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.
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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 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
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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,
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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.
1 (1995) 2 SCC 1
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(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
2 (2000) 5 SCC 438
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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
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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
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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.
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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 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
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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
8 (2004) 6 SCC 455
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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)].
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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
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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
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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,
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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,
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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
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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.
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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
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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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