Jagdish Chandra Singh Bora v. State of Uttaranchal & Anr.

Sri Alok Singh, learned Senior Advocate, Sri Manoj Tiwari, Sri S.N. Babulkar, learned Senior Advocate, Sri Tumul Nainwal, Sri Anil Bisht, Sri T.A. Khan, Sri P.C. Maulekhi, Sri A. Vashist, Sri Alok Mehra, Sri Vijay Bhatt, Sri G.S. Negi, Sri J.S. Virk, learned counsel for the petitioners. Sri U.K. Uniyal, learned Addl. G.A. for the State. Sri B.D. Kandpal learned S.C. for Public Service Commission. Coram: Hon’ble P.C. Verma, J. Hon’ble B.C. Kandpal, J. Dated: 2nd March, 2006 By means of these writ petitions, the petitioners have challenged the selection made by the State of Uttaranchal for the posts of Junior Engineers in various Government departments. 2- The brief facts giving rise to the aforesaid writ petitions are that the competitive examination for the posts of Junior Engineers was held by I.I.T., Roorkee and the interview was conducted by the Public Service Commission, Uttarnchal. All the petitioners are trained apprentices and in view of the judgment of the Apex Court in the case of U.P. S.R.T.C. versus U.P. Pariwahan Nigam Shikshukhs Brejgaar Sangh and others reported in (1995)2 S.C.C. -1 directions were issued, which read as under:- A. Other things being equal, a trained apprentice should be given preference over direct recruits.

B. 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 vs. V.N. Hargopal would permit this. C. 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 Rules be silent on this aspect, relaxation to the extent of the period of which the apprentice had undergone training would be given. D. The Training Institute concerned would maintain a list of the persons trained year-wise. The persons trained would be treated as senior to the persons trained later. In between trained apprentices, preference shall be given to those who are senior. 3- Learned counsel for the parties have drawn our attention towards the judgment dated 14-01-2004 rendered by learned Single Judge of this Court, in a similarly situated writ petition No. 22(M/B) of 2004 Subhash Chandra versus State of Uttaranchal and another.

Perusal of the judgment of learned Single Judge, reveals the writ petition was disposed with a direction respondents to decide the representation of the petitioner within six weeks and the points in issue were not decided, hence the judgment has no relevance to the facts of the present writ petitions. 4- The learned counsel for the petitioners submitted that the Rules known as ‘Uttaranchal Subordinate Service (Emergency Direct Recruitment) Rules, 2001’.were amended Uttaranchal Government and these Rules were called ‘Uttaranchal Subordinate Service [Emergency Direct Recruitment) First Amendment)] Rules 2003’ in which a provision was made for 10 bonus marks to the trained apprentices who have completed the period of apprenticeship in the concerned departments. The relevant portion of the Rules reads as under:- mRrjkpay ’kklu dkfeZd foHkkx vf/klwpuk izdh.kZ 31 tqykbZ 2003 bZ0 la[;k 1097@,d &2 2003 lafo/kku ds vuqPNsn 309 ijUrqd Onkjk iznRr ‘’kfDr dk iz; ksx djds fofHkUu vfHk;U=.k ds foHkkxh; fu; ekofy; ksa esa voj vfHk;Urkvsa dh lh/kh HkrhZ dh izfdz;k ,oa vk;q lEcU/kh izko/kkuksa vkSj ml fc"k; ij leLr or Zeku fu; eksa ,oa vkns’kksa dk vfrdze.k djds jkT;iky fuEufyf[kr fu; ekoyh cukrs gS& mRrjkpay v/khuLFk vfHk;U=.k lsok ¼vkikrdkyhu lh/kh HkrhZ ½ ¼izFke la’kks/ku½ fu; ekoyh 2003 1- laf{kIr uke] izkjEHk vkSj foLrkj%& ¼1½ ;g fu; ekoyh mRrjkpay v/khuLFk vfHk;U=.k lsok ¼vkikrdkyhu lh/kh HkrhZ½ ¼izFke la’kks/ku½ fu; ekoyh]2003 dgh tk; sxhA ¼2½ ;g rqjUr izc`r gksxhA ¼3½ ¼4½ fu;e 5 ¼4½ dk izfrLFkkiu fu; ekoyh jkT; ljdkj ds v/khu mRrjkpay v/khuLFk vf;U=.k lsok ¼vkikrdkyhu lh/kh HkrhZ½ fu; ekoyh 2001 esa fuEufyf[kr LrkEHk&1 esa fn;s x;s or Zeku fu;e & 5 ¼4½ ds LFkku ij LrkEHk&2 esa fn;k x;k fu;e izfrLFkkfir dj fn;k tk; sxk& LrEHk &1 crZeku fu;e 5¼4½ fyf[kr ijh{kk esa izkIr vadksa dh x.kuk lk{kkRdkj esa izkIr vadksa dks tksMrs gq, p;u djus ds fy, dh tk; sxhA LrEHk&2 ,rn~}kjk izfrLFkkfir fu;e 5¼4½ p;u djus ds fy, fyf[kr izkIr vadksa vkSj ijh{kk esa vadksa izkIr lk{kkRdkj dks tksMk tk; sxkA ijUrq foHkkx ds p;fur lEcfU/kr izoh.krk lwph vH;fFkZ;ksa dh ,sls fy, vH;fFkZ;ksa ftUgksuas lEcfU/kr foHkkx esa izf’k{kqrk dh vof/k iw.kZ dj yh gks] p;u ds fy, fyf[kr ijh{kk esa izkIr vadksa ,oa lk{kkRdkj esa izkIr vadksa ds vfrfjDr 10 vad vkSj fn;s tk; sxsaA 5- Learned Standing Counsel Sri B.D.Kandpal appearing for the Uttaranchal Public Service Commission as well as State of Uttaranchal submitted the Government issued a Government Order dated 29-4-2004, whereby the weightage given the Rules, has been withdrawn and the Public Service Commission did not give any weightage to the petitioners.

The relevant portion of amendment made in the aforesaid Government Order is Clarificactory in nature and in this G.O. it has been directed that if a candidate is not an apprentice and a candidate, who is trained apprentice obtain equal marks, then the weightage for selection shall be given to the trained apprentice. The contents of the G.O. dated 29-4-2004 are as follows: “The matter was also agitated in the Hon’ble High Court of Uttaranchal on the ground the persons who have completed some of the apprentice in some of the departments they may be given preference to the other direct candidate. The Hon’ble High Court of Nainital issued a direction relying upon the judgment of Apex Court that in case an apprentice and other direct employees stood on the same footing that event preference can be given apprentice i.e., if both candidates apprentice as well as other direct selected candidate obtained equal marks selection in that event preference should be given to the apprentice and not under any other circumstances.

The Hon’ble High Court in the judgment specially stated that if both candidates stood on equal footing the preference should be given to the apprentice. The selection may be finalized only in accordance with the direction issued by the Hon’ble High Court. The High Court while deciding his judgment issued a direction that the matter may be decided in accordance with the judgment of the Apex Court, in the case of U.P. State Transport Corporation. The Apex Court also held that in case both stood on equal footing in that event benefits can be given to the apprentice and not under any other circumstances, so as apprentice would by entitled for preference only if obtained the equal mark with a non- apprentice candidate. The amended Rule of the State of Uttaranchal will not apply those case where the selection process has already started.” 6- The learned Standing Counsel did not deny that the first amendment in the Uttaranchal Subordinate Service (Emergency Direct Recruitment) Rules, 2003 has been made under provisions of Article 309 of the Constitution of India.

It is well settled that the Government Order cannot override the provisions of Rules formulated under Article 309 of the Constitution of India. 7- It has been emphatically stated by the petitioners that the Uttaranchal Public Service Commission has not adhered to the Rule framed under Uttaranchal Subordinate Service (Emergency Direct Recruitment) (First Amendment) Rules, 2003 weightage of 10 marks has not been accorded to them. In para No. 2-J of the counter affidavit filed on behalf of Public Service Commission, it has been stated that in the G.O. dated 29-04-2004 it is also mentioned that the amended Rules dated 31-07-2003 will not apply in those cases in which selection process has already been started. Thus it is not disputed that commission has not adhered to the amended Rules and has not awarded 10 marks to apprentices. 8- The first Amendment Rule 2003 was brought in compliance to the directions issued by this court in Writ Petition No.

44(S/B) of 2002 Subhash Chandra versus State of Uttaranchal and others , which reads as under: “In the background of what has been noted above, we state that the following would be kept in mind while dealing with the claim of the trainees to get employment after successful completion of their training.: (5)Other things being equal, a trained apprentice should be given preference over direct recruits. (6)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 vs. V.N. Hargopal would permit this. (7)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 Rules be silent on this aspect, relaxation to the extent of the period of which the apprentice had undergone training would be given. (8)The Training Institute concerned would maintain a list of the persons trained year-wise.