# PUBLIC SERVICE COMMISSION, UTTARANCHAL v. JAGDISH CHANDRA SINGH BORA & ANR. ETC

- **Citation:** [2014] 3 S.C.R. 1026
- **Court:** Supreme Court of India
- **Decided:** 2014-03-03
- **Case number:** Civil Appeal No. 3034 of 2007
- **Bench:** Surinder Singh Nijjar, Ranjana Prakash Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/public-service-commission-uttaranchal-v-jagdish-chandra-singh-bora-anr-etc-29867
- **Pages:** 28

## Headnote

UTTRANCHAL
SUBORDINATE
ENGINEERING
C SERVICE (EMERGENCY DIRECT RECRUITMENT)
RULES, 2001: r.5(4) - Selection for the post of Junior
Engineer under the 2001 Rules - Advertisement and the 2001
Rules did not provide any weightage to be given to trained
apprentices - Rules 2001 ceased to exist on 11. 11. 2002 - On
D 31.7.2003, 2003 Rules framed - Rules 2003 superseded all
existing Rules but Rule 5(4) of 2001 Rules was transposed
by Rule 5(4) of the 2003 Rules - Rule 5(4) of the 2003 Rules
provided that the marks obtained in the written examination
and the marks obtained in the interview shall be increased
E by 10 extra marks in case of trained apprentices - Claim by
respondents-writ petitioners to make selection after giving
benefit of 1 O additional marks to the candidates for completed
apprenticeship - Held: All the candidates including the
respondents participated in the selection process under 2001
F Rules being fully aware that no preference was given to the
trained apprentices - Therefore, it cannot be said that any
vested right had accrued to the trained apprentices, under the
2001 Rules - The Rules of 2003 came into force on 31. 7.
2003 and no retrospective effect was given to it - The 2003
Rules could not have the effect of amending the 2001 Rules
G which had already ceased to exist in terms of Rule 6 thereof
w.e.f. 11.11.2001 - It was wholly impermissible to alter the
selection criteria which was advertised in 2001 - As no
preference was given to the trained apprentices in 2001
H
1026
PUBLIC SERVICE COMM., UTTARANCHAL v. JAGDISH
1027
CHANDRA SINGH BORA ETC.
Rules, many eligible candidates in that category may not A
have applied - Therefore, giving such preference would be
clear infraction of Article 14 of the Constitution of India -
Service law - Selection.
CIRCULAR/GOVERNMENT ORDERS/NOTIFICATION:
B
Executive orders - Binding effect of - Held: 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.
C
The State of Uttranchal came into existence on 9th
November, 2000. The Public Service Commission (PSCU)
was established in May, 2001. On 12th November, 2001,
the Uttranchal Subordinate Engineering Service
(Emergency Direct Recruitment) Rules, 2001 were framed
D
for filling up large number of vacancies of post of Junior
Engineer which became available on creation of the State
of Uttranchal. A proposal was sent by State Government
on 2nd November, 2001 to PSCU for conducting a written
examination. The written examination was to be
E
conducted by llT as the PSCU did not have the necessary
infrastructure. Pursuant to issuance of advertisement on
27th November, 2001, the written examination was held
by the llT on 12th January, 2002 and result of the written
examination was declared on 10th July, 2003.
F
A notification was issued on 31st July, 2003
superseding all the existing rules and regulations of
selection process in regard to direct recruitment of
Junior Engineer in various departments. The candidates
who had cleared written examination were called for G
interview from 18th 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
H
1028 SUPREME COURT REPORTS
[2014] 3 S.C.R.
A 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,
s it was clarified that 1 O 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 t

## Text

_Characters 0–39,899 of 53,332. This is a partial read: ask again with offset=39899 for what follows._

A
B
[2014] 3 S.C.R 1026
PUBLIC SERVICE COMMISSION, UTTARANCHAL
V.
JAGDISH CHANDRA SINGH BORA & ANR. ETC.
(Civil Appeal No. 3034 of 2007)
MARCH 3, 2014
[SURINDER SINGH NIJJAR AND
RANJANA PRAKASH DESAI, JJ.]
UTTRANCHAL
SUBORDINATE
ENGINEERING
C SERVICE (EMERGENCY DIRECT RECRUITMENT)
RULES, 2001: r.5(4) - Selection for the post of Junior
Engineer under the 2001 Rules - Advertisement and the 2001
Rules did not provide any weightage to be given to trained
apprentices - Rules 2001 ceased to exist on 11. 11. 2002 - On
D 31.7.2003, 2003 Rules framed - Rules 2003 superseded all
existing Rules but Rule 5(4) of 2001 Rules was transposed
by Rule 5(4) of the 2003 Rules - Rule 5(4) of the 2003 Rules
provided that the marks obtained in the written examination
and the marks obtained in the interview shall be increased
E by 10 extra marks in case of trained apprentices - Claim by
respondents-writ petitioners to make selection after giving
benefit of 1 O additional marks to the candidates for completed
apprenticeship - Held: All the candidates including the
respondents participated in the selection process under 2001
F Rules being fully aware that no preference was given to the
trained apprentices - Therefore, it cannot be said that any
vested right had accrued to the trained apprentices, under the
2001 Rules - The Rules of 2003 came into force on 31. 7.
2003 and no retrospective effect was given to it - The 2003
Rules could not have the effect of amending the 2001 Rules
G which had already ceased to exist in terms of Rule 6 thereof
w.e.f. 11.11.2001 - It was wholly impermissible to alter the
selection criteria which was advertised in 2001 - As no
preference was given to the trained apprentices in 2001
H
1026
PUBLIC SERVICE COMM., UTTARANCHAL v. JAGDISH
1027
CHANDRA SINGH BORA ETC.
Rules, many eligible candidates in that category may not A
have applied - Therefore, giving such preference would be
clear infraction of Article 14 of the Constitution of India -
Service law - Selection.
CIRCULAR/GOVERNMENT ORDERS/NOTIFICATION:
B
Executive orders - Binding effect of - Held: 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.
C
The State of Uttranchal came into existence on 9th
November, 2000. The Public Service Commission (PSCU)
was established in May, 2001. On 12th November, 2001,
the Uttranchal Subordinate Engineering Service
(Emergency Direct Recruitment) Rules, 2001 were framed
D
for filling up large number of vacancies of post of Junior
Engineer which became available on creation of the State
of Uttranchal. A proposal was sent by State Government
on 2nd November, 2001 to PSCU for conducting a written
examination. The written examination was to be
E
conducted by llT as the PSCU did not have the necessary
infrastructure. Pursuant to issuance of advertisement on
27th November, 2001, the written examination was held
by the llT on 12th January, 2002 and result of the written
examination was declared on 10th July, 2003.
F
A notification was issued on 31st July, 2003
superseding all the existing rules and regulations of
selection process in regard to direct recruitment of
Junior Engineer in various departments. The candidates
who had cleared written examination were called for G
interview from 18th 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
H
1028 SUPREME COURT REPORTS
[2014] 3 S.C.R.
A 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,
s it was clarified that 1 O 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
c was prepared and forwarded to the State Government on
15th May, 2004.
Aggrieved by the non-grant of additional 10 marks,
large number of unsuccessful candidates in the
apprenticeship category filed a number of petitions,
D 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. The High Court allowed the writ petition
solely on the ground that the clarification dated 29th April,
E 2004 could not have the effect of amending the statutory
rules framed under Article 309 on 31st July, 2003. It was
held that the direction issued on 29th April, 2004 related
to the same selection to which the amended rules of 2003
were applicable and, therefore, the G.O. dated 29th April,
F 2004 being in the nature of executive instructions could
not supplant the statutory rules but could only
supplement the statutory rules. Hence the instant
appeals.
G
Allowing the appeals, the Court
HELD: 1. The Uttranchal Subordinate Engineering
Service (Emergency Direct Recruitment) Rules, 2001 were
specifically framed to cater for an emergency as the State
of Uttaranchal came into existence on 9th November,
H 2000. There was such an urgent need for recruitment of
PUBLIC SERVICE COMM., UTTARANCHAL v. JAGDISH
1029
CHANDRA SINGH BORA ETC.
Junior Engineers that since the infrastructure of the
A
PSCU was not in existence, a request was made that the
posts be taken out of the purview of the PSCU on this
one occasion, and the written examination be conducted
by llT, Roorkee. PSCU agreed to such procedure but
limited only to the holding of the written examination. The
interviews were still to be held by the PSCU. The Rules
of 2001 were specifically framed for making the selection
of the candidates, who would have applied for the
available posts. Rule 4 provided comprehensive criteria
B
for making a selection to the post of Junior Engineer. The c
selection was to be made on the basis of the total marks
obtained by the candidates in the written examination and
the interview. The list of successful candidates of the
written examination was to be made available by llT,
Roorkee to PSCU. Thereafter, the PSCU was to call the
0
candidates for interview on the basis of minimum
qualifying marks in the written examination. Section 4(11)
provided that the PSCU shall prepare a merit list by
adding marks obtained by the candidates in the written
examination and the interview. The Rules prescribed that
E
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
F
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 G
weightage to be given to the trained apprentices. All the
candidates including the respondents participated in the
selectibn process, being fully aware that no preference
will be given to the trained apprentices. Therefore, it
cannot be said that any accrued or vested· right had
H
1030 SUPREME COURT REPORTS
[2014] 3 S.C.R.
A accrued to the trained apprentices, under the 2001 Rules.
[Paras 18, 20] (1045-B, C-E; 1046-C-H; 1047-A]
U.P. State Road Transport Corporation & Anr. Vs. UP.
Parivahan Nigam Shishukhs Berozgar Sangh & Ors. (1995)
B 2 SCC 1: 1995 (1) SCR 204 - referred to.
2. 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
C the appointments were to be made on the basis of merit
obtained by the candidates in the selection process. 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
D made it clear that the same shall become ineffective after
the process of recruitment is completed. Thereafter, the
selected candidates shall be governed by the Service
Rules and the Government Orders applicable in the
Government. This makes it abundantly clear that on 12th
E November, 2002, the 2001 Rules ceased to exist.
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
superseded all existing Rules but Rule 5(4) of 2001 Rules
I='
was 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 provided that
the marks obtained in the written examination and the
G marks obtained in the interview shall be increased by 10
extra marks in case of trained apprentices. The
respondents could have taken no advantage of these
Rules. The Selection process was under the 2001 Rules.
The Rules of 2001 as well as advertisement did not
provide for any additional marks/weightage to be given
H
PUBLIC SERVICE COMM, UTTARANCHAL v. JAGDISH
1031
CHANDRA SINGH BORA ETC.
to the trained apprentices. The Rules of 2003 came into
A
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
8
of Rule 6 thereof. The High Court was in error in holding
that 2003 Rules were applicable to the process of
selection which had commenced in 2001 under the 2001
Rules. [Paras 21, 22 and 23] [1047-B-H; 1048-A-B]
3. The High Court has wrongly concluded that as the
C
2003 Rules had been framed in obedience to the
directions issued by a single judge of the High Court in
a writ petition titled Subhash Chandra Vs. State of
Uttaranchal, they would relate to the selection which was
governed by the 2001 Rules and the advertisement D
issued by the State on 27th November, 2001. 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. Furthermore, the High Court in Subhash Chandra's
case had only reiterated the directions which have been
given by the Supreme Court in the case of UPSRTC.
lnspite of those directions being in existence, no
preference had been provided to the trained apprentices
G
in the 2001 Rules. The respondents, unsuccessful
candidates who were trained apprentices, woke up only
after the select list was published by the PSCU. Even if
E
F
the 2003 Rules have been framed on the directions of the
High Court, the rules came into force on 31st July, 2003.
H
1032 SUPREME COURT REPORTS
[2014] 3 S.C.R.
A Therefore, it cannot be said that the said rules were
applicable to the selection which was governed under
the 2001 Rules and the advertisement dated 11th
November, 2001. Under the 2001 Rules, the marks to be
given for the interview could not be more than 12.5% of
8 the written examination and 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
C 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.
D Selection procedure can not be altered after the process
of selection had been completed. [Paras 24, 25] [1048-BH; 1049-C-E]
K. Manjusree Vs. State of Andhra Pradesh & Anr. (2008)
E 3 sec 512: 2008 (2) SCR 1025 - relied on.
4. It is incorrect to state 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
F direct recruits. The reliance was placed on the directions
issued by this Court in the case of UPSRTC which was
as follows: "Other things being equal, a trained
apprentice should be given preference over direct
recruits." The only natural meaning of the said phrase
G '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 interse merit is determined on the same criteria, applicable to
both categories. In this case, it is the aggregate of the
H marks secured by the candidate in the written test and
PUBLIC SERVICE COMM., UTTARANCHAL v. JAGDISH
1033
CHANDRA SINGH BORA ETC.
the interview. The additional 10 marks are given to the
A
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
B
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 c
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%
0
total marks on the basis of the marks obtained in the
written test plus interview, whilst candidates No.2 to 10
secure total marks ranging from 51 to 59. But candidate
No.1 has secured total marks identical to a direct recruit,
i.e., 50%; whereas candidates No.2 to 10 have not
secured marks at par with any direct recruit candidate.
E
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
G
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
F
H
1034
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A consequences. This is not the intention of giving the
preference to the trained apprentices. This interpretation
would, in fact, create a sub-classification within the class
of trained apprentice candidates. Such a subclassification would have no rationale nexus, with the
B 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. [Para 26)
c [1049-F-H; 1050-A-H; 1051-A-C]
5. The only direction issued by this Court in
UPSTRC's case was to give preference to the trained
apprentices over direct recruits. No direction was given
in the judgment as to how the preference was to be
D given. However, in order to ensure that the training given
to the apprentices at the State expense is utilized, certain
directions were issued. lnspite of the said directions, no
preference was given to the trained apprentices in the
selection process which was governed by the 2001
E Rules, and the advertisement dated 27th November, 2001.
Whilst the process of selection was still in progress, the
High Court rendered its judgment in the case of Subhash
Chandra. The 2003 Rules were framed and enforced with
effect from 31st July, 2003. Consequently, when the
F 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
G 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
H not be applicable to the selection process which had
PUBLIC SERVICE COMM., UTTARANCHAL v. JAGDISH
1035
CHANDRA SINGH BORA ETC.
already started. Therefore, the selection process under A
the 2001 Rules was excluded. However, 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
8
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. Although clarification dated 29th
April, 2004 would not have the effect of superseding,
amending or altering the 2003 Rules; it would not be
C
possible to give any relief to the respondents. The criteria
under the 2003 Rules governed all future recruitments.
The claim of the respondents (trained apprentices) would
not be covered under the 2001 Rules by virtue of the so
called amendment made by 2003 Rules. The High Court D
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. [Paras 27, 28] [1051D, G-~; 1052-A-G; 1053-A-B]
U.P. Rajya Vidyut Parishad Apprentice Welfare
Association & Anr. Vs. State of U.P. & Ors. (2000) 5 SCC 438;
N. T. Devin Katti & Ors. Vs. Karnataka Public Service
Commission & Ors. (1990) 3 SCC 157; P. Mahendran & Ors.
E
Vs. State of Karnataka & Ors. (1990) 1 SCC 411: 1989 (2)
F
Suppl. SCR 385; Sonia Vs. Oriental Insurance Co. Ltd. &
Ors. (2007) 10 SCC 627: 2007 (8) SCR 883; Chandra
Prakash Tiwari & Ors. Vs. Shakuntala Shukla & Ors. (2002)
6 SCC 127: 2002 (3) SCR 948; Manish Kumar Shahi Vs.
State of Bihar & Ors. (2010) 12 SCC 576; Ramji Purshottam
G
(dead) by Lrs. & Ors. Vs. Laxmanbhai D. Kurlawala (dead) by
Lrs. & Anr. (2004) 6 SCC 455 - referred to.
Case Law Reference:
1995 (1) SCR 204
Referred to
Para 8
H
A
B
c
1036 SUPREME COURT REPORTS
[2014] 3 S.C.R.
(2000) 5 sec 438
(1990) 3 sec 157
Referred to
Referred to
1989 (2) Suppl. SCR 385
Referred to
2007 (8) SCR 883
~eferred to
2002 (3) SCR 948
(201 O) 12 sec 576
(2004) 6 sec 455
2008 (2) SCR 1025
Referred to
Referred to
Referred to
Relied on
Para 9
Para 14
Para 14
Para .14
Para 14
Para 14
Para 16
Para 25
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3034 of 2007.
D
From the Judgment and Order dated 02.03.2006 of the
High Court of Uttaranchal at Nainital in Writ Petition Nos. 149,
129, 135, 136, 137, 147, 148, 162, 169, 255, 302, 186 and
300 of 2004 (SIB).
WITH
E Civil. Appeal No. 3036 of 2007.
Vijay Hansaria, Jatinder Kumar Bhatia, Ajay Kumar,
Krishna Prakash Dubey for the Appellant.
F
S.R. Singh, Ankur Yadav, Ujjawal Pandey, Raj Singh Rana,
K.S. Rana, P.N. Gupta, Ashwani Bhardwaj, Prateek Dwivedi,
Rachana Srivastava for the Respondents.
The Judgment of the Court was delivered by
G
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,
H 135, 136, 137, 147, 148, 162, 169, 255, 302, 186, and 300 of
PUBLIC SERVICE COMM., UTIARANCHAL v. JAGDISH
1037
CHANDRA SINGH BORA ETC. [SURINDER SINGH NIJJAR, J.]
2004. By the aforesaid judgment, the High Court has given a
A
direction to the appellant to give weightage of 10 bonus marks
to the trained apprentice candidates as per the "Uttaranchal
Subordinate Service [Emergency Direct Recruitment (First
Amendment)] Rules, 2003" in the selection held by UPSC; and
after adding 1 O marks, merit list of the selected candidates be
B
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 insfrumentalities of the State c
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,
D
2006 wherein the High Court has allowed the Writ Petition Nos.
446 of 2006, 275 of 2004, 166 of 2004, 138 of 2006, 333 of
2004 and 775 of 2006 in terms of the earlier judgment dated
2nd March, 2006 which is subject matter of Civil Appeal
No.3034 of 2007.
E
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
F
conducting a written examination. The written examination had
to be conducted by llT, 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,
G
the Government of Uttaranchal framed Uttaranchal Subordinate
Engineering Service (Emergency Direct Recruitment) Rules,
2001 under proviso to Article 309 of the Constitution of India.
These rules were notified vide Gazette Notification No.1973/
One-2001 dated 12th November, 2001. It appears that these
H
1038
SUPREME COURT REPORTS
[2014] 3 S.C.R
A 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:-
B
c
D
E
F
"The Rules shall become ineffective after the process of
Recruitment is completed as it has never been
promulgated. Candidates selected on the basis of Rules
shall be governed by Service Rules and G.Os. as
applicable before in the Govt."
4. Rule 5 which dealt with the manner in which the
candidate was to be selected and the merit list was to be
prepared reads as under :-
"4. Conduct method of Examination
(1) Appointing authorities shall inform the no of SC, ST
and OBC vacancies in all the categories and decide the
vacancies to Dept. of Personnel of State Govt. who will
publish the same in the newspapers.
(2) The application for selection shall be invited in
prescribed format of the Govt. for consideration.
(3) Even if the relevant Service Rules regarding the issue
or Govt. Orders are contrary, then also with the permission
of llT Roorkee shall conduct the examination for th~ Direct
Recruitment of Senior Engineers for the candidates.
(4) The marks of interview to be added to marks of the
written examination for selection.
G
(5) Written examination shall be conducted by the llT
Roorkee according to Rules Prescribed by the State Govt.
H
(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.
PUBLIC SERVICE COMM., UTTARANCf!!AL·V JAGDISH
1039
CHANDRA SINGH BORA ETC. [SURINDER SINGH NIJJAR, J.]
(7) Question papers of the written examination shall be
A
printed both in Hindi and English languages.
(8) Written examination shall be conducted at place on
time as decided by llT Roorkee.
(9) I IT Roorkee shall prepare list on the basis of written
examination and shall make it avaiiable to the Public
Service Commission, Uttaranchal.
(10) Commission shall call the candidates.for interview on
B
the basis of minimum qualifying marks in the written c
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
0
more marks in written exam shall be pref_erred. If marks in
r
.
..
written exam are also equal the cand.idlite of more age
shall be preferred and to be kept in. merit list accordingly.
The names of candiaates in m~rit Ii~\ shall not be more
than 25% of the total no. of vacancies.
(12) Commission shall forward·~the merit list to the
Department of Personnel."
E
5. On 27th November, 2001, the State issued an
advertisement for filling up the vacancies ,,f Junior Engineers,
F
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 llT Roorkee on 12th
January, 2002. The result of the written examination was
G
declared on 10th July, 2003.
6. It appears that a notification was issued on 31st July,
2003, superseding all the existing rules and regulations of
selection process in regard to direct recruitment of Junior
Engineer in various departments. The notification reads as
H
1040
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A under:
B
c
D
"Govt. of Uttaranchal
Department of Personnel
Notification Misc.
Dated 31.07.2003
No. 1097/one-2 2003 Hon'ble Governor under Article 309
Constitution of India for different Engineering Departments the
effective Services Rules are encroached once and Rules
framed for direct recruitment of Junior Engineers as follows:
Uttaranchal Subordinate Engineering Services
(Emergency Direct Recruitment) (First Amendment) Rules
2003.
3. Brief name, Start and application/effect
(i) The Rules shall be called Uttaranchal Subordinate
Engineering Service~ (Emergency Direct Recruitment) (First
Amendment) Rules 2003.
E
(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
F Services (Emergency Direct Recruitment) Rules 2001.
Present Rule
Substituted Rule
5(4) The marks of interview
5(4) for selection marks
to be added to marks of the
scored by the candidate in
G
written examination for
written exam and interview to
H
selection.
be added but for the
preparation of merit list such
candidates
who
had
completed apprenticeship in
the concerned department to
PuBuc sERv1cE coM'M.fooARiA.NclfAtl =JA'GrnswJ2
10~1
CHANDRA SINGH BORA ETC. [SURINDER SINGH NIJJAR, J]
be given bonus of 10 marks in
A
the total marks scored in
written exam and interview.
7. The candidates who had cleared the written
examination were called for interview from 18th December,
2003 to 22nd December, 2003. In the notification dated 31st
B
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 c
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.
D
Thereafter, the selected list of the successful candidates was
prepared and forwarded to the State Government on 15th May,
2004.
8. Aggrieved by the non-grant of additional 10 marks, large
number of unsuccessful candidates in the apprenticeship
E
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
F
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 :-
G
"(1) Other things being equal, a trained apprentice should
be given preference over direct recruits.
1.
(1995) 2 sec 1.
H
A
B
c
D
j 042 SUPREME COUBJ REPORTS:
[2014] 3 S.C.R.
(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
1 O. On the basis of the aforesaid judgments, the trained
E apprentices claimed to be a class apart. It was claimed that
the classification between the apprentices and others would not
be only for the purpose of giving preferential treatment in the
selection but also for giving relaxation in upper age limit,
relaxation in the matter of getting their names sponsored by the
F 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
G Article 309 on 31st July, 2003. It is held that the direction
issued on 29th April, 2004 related to the same selection to
which the amended rules of 2003 were applicable. Therefore,
the G.O. dated 29th April, 2004 being in the nature of executive
instructions could not supplant the statutory rules but could only
H
2.
(2000) s sec 438.
PUBLIC SERVICE COMM., UTTARANCHAL v. JAGDISH
1043
CHANDRA SINGH BORA ETC. [SURINDER SINGH NIJJAR, J.]
supplement the statutory rules. With this reasoning, the High
A
Court issued a writ in the nature of mandamus directing the
PSCU to give weightage of additional 10 marks to the
apprentices by adding the same to the total marks secured by
them in the written examination and the interview.
B
12. We have heard the learned counsel for the parties.
13. Mr. Vijay Hansaria, learned counsel appearing for the
appellant, has submitted that the High Court has misread the
~irections issued by this Court in the case of U.P. State Road
C
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.
D
The process for this recruitment had commenced when the
advertisement was Issued in the year 2001. All the respondents
had applied pursuant to the aforesaid advertisement. Under
these rules, no preference was given to the trained
apprenticeship. Even the advertisement did not indicate any
E
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.
F
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.
G
14. Learned senior counsel further submitted that 2003
rules cannot be given retrospective effect as·no such express
provision has been made to that effect. He relies on the
judgment in N. T. Devin Katti & Ors. Vs. Karnataka Public
H
1044 SUPREME COURT REPORTS
[2014] 3 S.C.R.
A Service Commission & Ors. 3 P. Mahendran & Ors. Vs. State
of Kamataka & Ors. 4 and Sonia Vs. Oriental Insurance Co.
Ltd. & Ors. 5 He also submits that all the respondents having
participated in the selection process cannot be permitted to
challenge the same He submitted that the final select list was
B published on 15th May, 2004. Only when the respondents did
not get selected on merit, they filed the writ petitions in June,
2004. He relies on the judgments in Chandra Prakash Tiwari
& Ors. Vs. Shakuntala Shukla & Ors. 6 and Manish Kumar
Shahi Vs. State of Bihar & Ors. 7
c
15. Mr. Hansaria further pointed out that 841 posts had
been advertised on 27th November, 2001. All the posts have
been duly filled up soon after selection. Therefore, the High
Court committed an error of jurisdiction in issuing the directions
to prepare the merit list after adding 10 marks to the marks
D obtained by the trained apprentices. He submitted that in any
event, all the vacancies having been filled up immediately after
the publication of the select list, the mandamus issued by the
High Court can not possibly be implemented.
E
16. Mr. C.U. Singh, appearing for the respondents
submitted that vested rights of the respondents under 2003
Rules could not have been taken away by issuance of executive
instruments issued on 29th April, 2004. He further submitted
that in this case no retrospective effect is being given to the
F 2003 Rules as these Rules were framed in respect of
antecedent facts. He relies on the judgment of this Court in
Ramji Purshottam (dead) by Lrs. & Ors. Vs. Laxmanbhai D.
Kurlawala (dead) by Lrs. & Anr. 8
G
3.
(1990) 3 sec 157.
4.
(1990) 1 sec 411.
5.
c2007) 10 sec 627
6.
c2002) 6 sec 127.
7.
c2010) 12 sec 576
H 8
c2004) 6 sec 455.
PUBLIC SERVICE COMM .. UTTARANCHAL v. JAGDISH
1045
CHANDRA SINGH BORA ETC. [SURINDER SINGH NIJJAR, J ]
17. We have considered the submissions made by the
A
· 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
B
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
C
, Government advertised 841 posts of Jr. Engineers in different
departments throughout the State. There was such an urgent
need for recruitment that since the infrastructure of the PSCU
was not in existence, a request was made that the posts be
taken out of the purview of the PSCU on this one occasion, and
the written examination be conducted by llT, Roorkee. PSCU
D
agreed to such procedure but limited only to the holding of the
written examination. The interviews were still to be held by the
PSCU. The Rules of 2001 were specifically framed for making
the selection of the candidates, who would have applied for the
available posts.
E:
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:-
F
1.
Brief name, Start and application/effect
(i)
The Rules shall be called Service (Emergency
Direct Recruitment) Rules, 2001.
(ii)
The Rules shall be applicable with immediate effect
(iii)
The Rules shall be applicable only for the direct
recruitment in the year 2002 for Subordinate
Engineering Services.
G
H
1046 SUPREME COURT REPORTS
(2014} 3 S.C.R.
A
(iv)
The Rules shall be applicable to all the Department
B
for Direct Recruitment of Junior Engineers.
(v)
The rules shall have over riding effect on all the
applicable service Rules for the purpose of Direct
Recruitmont of Junior Engineer for once only.
20. A perusal of the aforesaid would clearly show that all
the candidates including the respondents, who applied in
response to the advertisement dated 27th November, 2001
were governed by the 2001 Rules. Rule 4 provides
C comprehensive criteria for making a selection to the post of Jr.
Engineer. The written examination was to be conducted by the
llT, Roorkee. The selection was to be made on the basis of the
total marks obtained by the candidates in the written
examination and the interview. The list of successful candidates
D of the written examination was to be made available by llT,
Roorkee to PSCU. Thereafter, the PSCU was to call the
candidates for interview on the basis of minimum qualifying
marks in the written examination. Section 4(11) provides that
the PSCU shall prepare a merit list by adding marks obtained
E by the candidates in the written examination and the interview.
If two or more candidates secured equal marks, the candidates
securing more marks in the written examination shall be
preferred. In case, the marks obtained by two candidates in
written examination are also equal, the older candidate shall
F be preferred to the younger. Therefore, it is evident that
consciously the State had not provided for any preference to
be given to the trained apprentices under the Rules. Keeping
in view the provisions contained in the Rules, the State
Government issued an advertisement on 27th November,
G 2001. The advertisement also did not provide for any weightage
to be given to the trained apprentices. All the candidates
including the respondents participated in the selection process,
being fully aware that no preference will be given to the trained
apprentices. This was inspite of the directions issued by this
Court in UPSRTC's case (supra). Therefore, it cannot be said
H
PUBLIC SERVICE COMM .. UTTARANCHAL v. JAGDISH
1047
CHANDRA SINGH BORA ETC. [SURINDER SINGH NIJJAR, J.]
that any accrued or vested right had accrued to the trained
A
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.
8
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.