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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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