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PETITIONER: N.T. BEVIN KATH ETC.

       Vs.

RESPONDENT: KARNATAKA PUBLIC SERVICE COMMISSION AND ORS.

DATE OF JUDGMENT30/03/1990

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) KASLIWAL, N.M. (J)

CITATION:  1990 AIR 1233            1990 SCR  (2) 239  1990 SCC  (3) 157        JT 1991 (5)   282  1990 SCALE  (1)659  CITATOR INFO :  RF         1991 SC2113  (10)  E&R        1992 SC 749  (5)

ACT:     Karnataka  Administrative  Services   (Tehsildars)   Re- cruitment Special Rules,  1975.’ Preparation of select  list for  appointment of Tehsildars--Service  Commission--Whether to follow Government Order dated September 6, 1969 or  July, 9, 1975.

HEADNOTE:     The Karnataka Public Service Commission issued a notifi- cation on 23rd May 1975 inviting applications from  in-serv- ice candidates for recruitment to 50 posts of Tehsildars. In para 14 of the notification it was stated that provisions of 1975  Rules, and Rules 7 to 14 of the Karnataka  Recruitment of Gazetted Probationers (Class I & 11 posts Appointment  by Competitive Examination) Rules, 1966 shall mutatis  mutandis apply to the conduct of the competitive Examination and  the provisions  of the Karnataka State Civil  Services  (General Recruitment)  Rules, 1957 shall apply in respect of  matters for which no provision is made in the Rules.     In preparing the select list and making reservations  to the  various categories, the Commission followed the  direc- tions  and  the procedure as contained in  Government  Order dated  6th September 1969. The State Government  refused  to approve  the list and directed the Commission on 23.4.76  to prepare the list afresh following the Government Order dated 7th  July 1975. The Commission thereupon prepared  the  list afresh  as  per Government Order of 7th July  1975.  In  the revised list, the appellants names did not figure.     The appellants challenged the validity of the Government Order dated 23rd April 1976 as well as the revised list  and the validity of the Government Order dated 9th July 1975  by means of writ petitions before the High Court on a number of grounds. The appellants contended that the Government  Order dated 7th July 1975 prescribing mode of preparing the select list  by  making  reservations for  various  categories  was inconsistent  with the statutory Rule 10 of 1966 Rules,  and further  the directions contained therein were violative  of Articles 16(1) and 16(4) of the Constitution of India.

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240     The  High  Court rejected both the  contentions  holding that  the  directions contained in Government Order  of  9th July 1975 were not violative of Rule 10(2) and there was  no violation of Article 16 of the Constitution. The High  Court also upheld the Government Order dated 23.4.76 directing the Commission  to prepare the select list afresh in  accordance with  the mode prescribed vide Government Order of 9th  July 1975.     In  this  Court,  the appellants did  not  pursue  their challenge  to  the validity of the  Government  Order  dated 9.7.75  but they assailed the validity of  Government  Order dated 23.4.76 wherein the Government directed the Commission to prepare a revised list in accordance with the  Government Order  dated 9.7.75 on the ground that the Government  Order was not applicable to the pending selection.     The appellants also urged that the mode of selection and procedure  for making reservations as prescribed by  Govern- ment Order of 9th July 1975 was not applicable to the selec- tion  as advertisement had been issued in May 1975  and  the process  of  selection had already commenced  prior  to  the issue of Government Order dated 9th July 1975, and that  the revised  list of successful candidates prepared by the  com- mission as per Government directions of 23.4.76 was  illegal and contrary to the Rules.     On  behalf of the Respondents it was submitted that  the list  of successful candidates had been prepared in  accord- ance  with Government Order dated 9th July 1975,  the  State Government was justified in insisting upon the Commission to prepare  the list afresh in accordance with  the  directions contained in the aforesaid order.     Allowing the Appeals and setting aside the Order of  the High Court,     HELD: (1) Where advertisement is issued inviting  appli- cations  for direct recruitment to a category of  posts  and the  advertisement expressly states that selection shall  be made  in  accordance with the existing rules  or  Government Orders  and if it further indicated the extent  of  reserva- tions  in  favour of various categories,  the  selection  of candidates  in such a case must be made in  accordance  with the then existing Rules and Government Orders if any.     (2)  Whether the Rules have retrospective effect or  not primarily  depends  upon the language of the Rules  and  its construction to ascertain the legislative intent. 241     (3) Indisputably the Government Order of 9th July   1975 superseded  all earlier Government Orders including that  of 6th  September  1969 but in para II it saved  the  selection which  was  pending i.e. it saved the  reservations  already made for any category of post or service in respect of which advertisement  had already been issued before the  issue  of Government  Order  dated 9th July 1975. Para II was  in  the nature  of a saving clause, and the Commission rightly  fol- lowed the mode of selection prescribed under the  Government Order  in force prior to Government Order of 9th July  1975. The  State Government was bound to give full effect  to  the provisions  of  para II of Government Order dated  9th  July 1975.  therefore  directions contained in  its  order  dated 23.4.76 were illegal [248C-E; 249E]     4.  Another  aspect of the instant case  is  that  where advertisement is issued for direct recruitment to a category of  posts expressly stating that selection shall be made  in accordance with the existing rules or Government Orders  and also  indicates  the  extent of reservations  in  favour  of various categories, the selection of candidates must be made

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in  accordance  with these rules and Government  Order.  The candidates  who  applied for selection in pursuance  of  the advertisement,  acquired vested right for  being  considered for selection in accordance with the terms and conditions of the advertisement. [249E-G]     5. In case the recruitment Rules are amended  retrospec- tively  during the pendency of the selection then  selection has to be made in accordance with the amended rules. Whether rules  have  retrospective effect or not  primarily  depends upon  the  language  of the Rules and  its  construction  to ascertain  the legislative intent, either by express  provi- sion  or by necessary implication. If the amended Rules  are not retrospective in nature the selection must be  regulated in accordance with the existing Rules and orders in force at the time of advertisement. [249H; 250A-B]     (6) It is a well accepted principle of construction that Statutory Rule or Government Order is prospective in  nature unless  it is expressly or by necessary implication made  to have retrospective effect. [251 D]     (7) In the instant case, para II of the Government Order dated  9th  July 1975 made the Governments  intention  clear that the revised directions which are contained in the  said Government Order would not apply to the selection in respect of  which advertisement had already been  issued.  Therefore the  mode of selection as contained in Annexure to the  Gov- ernment Order dated 9th July 1975 was not applicable to  the selection for filling 50 posts of Tehsildars pending  before the Public Service Commission. [251G-H] 242     8.  Having regard to the facts the circumstances of  the case.  it would be expedient in the interest of justice  not to interfere with the respondents’ appointment but the State Government  is directed to appoint I the appellants  on  the posts of Tehsildars with retrospective effect. If no  vacan- cies  are  available  the State Government  is  directed  to create supernumerary posts of Tehsildars for appointing  the appellants  against those posts. For purposes, of  seniority the  appellants  should be placed below the  last  candidate appointed in 1976 but they will not be entitled to any  back wages. [252F-G]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  2270-73 of 1987 & 17 13/1990.     From  the  Judgment & Order dated the 11.8.1978  of  the Karnataka High Court in Writ Petition No. 4609/76, 4610/76 & 4611 of 1976. P.P. Rao and S.R. Bhatt for the Appellants. M. Veerappa for the Respondents. The Judgment of the Court was delivered by SINGH, J. Special leave granted.     These  appeals  are directed against the judgment  of  a Division  Bench of the High Court of Karnataka dated  August 11,  1978  dismissing the appellants’  writ  petition  under Article 226 of the Constitution of India challenging validi- ty  of  the revised select list prepared  by  the  Karnataka Public  Service Commission for appointment to the  posts  of Tehsildars.     In  the State of Karnataka recruitment to the  posts  of Tehsildars  is  regulated by  the  Karnataka  Administrative Services  (Tehsildars)  Recruitment  (Special)  Rules   1975 (hereinafter  referred  to  as 1975  Rules).  The  Karnataka Public  Service Commission (hereinafter referred to  as  the

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Commission) issued a Notification on May 23, 1975 (published on  May  29,  1975) inviting  applications  from  in-service candidates for recruitment to 50 posts of Tehsildars.  Para- graph  3 of the Notification specified details of the  posts reserved  for  candidates  belonging  to  Scheduled  Castes, Scheduled Tribes and other Backward classes including 10% of posts set apart for Ex-Military Personnel. According to  the figures specified, therein, out of 50 posts of 243 Tehsildars, 5 posts were reserved for Ex-Military Personnel, 7 posts for Schedule Castes, 1 post for Schedule Tribes  and 13  posts  for other Backward classes. Paragraph  3  of  the advertisement  stated that in the event of  non-availability of  sufficient number of candidates belonging  to  Scheduled Castes.  Scheduled Tribes and other Backward classes or  Ex- Military  personnel, for filing to the  reserved  vacancies, such vacancies shall be filled up as per Rules in force. The Notification  further gave details of the written  and  viva voce  examinations. Para 14 of the Notification stated  that the provisions of 1975 Rules and Rules 7 to 14 of the Karna- taka  Recruitment of Gazetted Probationers (Class I  and  II posts  Appointment  by Competitive Examination)  Rules  1966 (hereinafter  referred  to  as 1966  Rules),  shall  mutatis mutandis apply to the conduct of the competitive examination and  the  provisions of the Karnataka State  Civil  Services (General Recruitment) Rules 1957 (hereinafter referred to as 1957  Rules) shall apply in respect of matters for which  no provision   is   made  in  the  Rules.   Pursuant   to   the advertisement,  the  appellants who were in service  of  the State Government applied for their selection and appointment to  the posts of Tehsildars. After the  written  examination and  viva  voce test the Commission finalised  the  list  of successful candidates and published the same in the Karnata- ka  Gazette dated March 18, 1976. The Commission also  noti- fied  in  additional list of successful candidates  for  ap- pointment to the posts of Tehsildars in accordance with 1975 Rules,  which included the names of the appellants. In  pre- paring the select list and making reservation to the various categories,  the Commission followed the directions and  the procedure  as  contained in the Government Order  dated  6th September 1969. The State Government refused to approve  the list prepared by the Commission as in its opinion the reser- vation for the Scheduled Castes, Scheduled Tribes and  other Backward  classes should have been made in  accordance  with the  directions  and procedure contained in  the  Government Order dated 9th July 1975. The State Government by its order dated  23rd April 1976 directed the Commission to prepare  a fresh  list of successful candidates by making  reservations in accordance with the procedure contained in the Government order dated 9th July 1975. Pursuant to the directions of the State  Government  the Commission prepared the  select  list afresh,  after  making reservations in accordance  with  the procedure prescribed by the Government Order dated 9th  July 1975,  and published the same on 27th May 1976.  The  appel- lants’  names did not figure in the revised list  of  candi- dates. The appellants challenged validity of the  Government Order  dated  23rd April 1976 as well as  the  revised  list prepared  by  the Commission and also the  validity  of  the Government  Order  dated  9th July 1975, by  means  of  writ petitions before the High Court 244 on  a number of grounds. A Division Bench of the High  Court by its order dated 11th August 1978 dismissed the petitions. Hence these appeals.     The appellants had challenged validity of the Government

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Order  dated 9th July 1975, prescribing mode  for  preparing the select list by, making reservation for Scheduled Castes, Scheduled  Tribes and other Backward classes, on the  ground that the same was inconsistent with the statutory Rule 10 of 1966  Rules  and further on the ground that  the  directions contained therein were violative of Articles 16(1) and 16(4) of  the Constitution Of India. The High Court rejected  both the contentions holding that the directions contained in the Government  Order dated 9th July 1975 were not violative  of Rule  10(2) and there was no violation of Article 16 of  the Constitution.  The  High Court upheld the  Government  Order dated  23rd April 1976 directing the Commission  to  prepare the  select  list afresh in accordance with  the  mode  pre- scribed  under  the Government Order dated  9th  July  1975. Learned counsel for the appellants did not pursue the  chal- lenge relating to the validity of the Government Order dated 9th July 1975 before us instead he assailed the validity  of the State Government’s Order dated 23rd April 1976 directing the Commission to prepare a revised list in accordance  with the Government Order dated 9th July 1975, on the ground  the Government Order was not applicable to the selection.     ’Learned  counsel  for  the appellants  urged  that  the Commission  had  rightly  prepared the  list  of  successful candidates published on 18th May 1976 in accordance with the directions  contained  in  the Government  Order  dated  6th September  1969 by making reservation of posts of  Scheduled Castes, Scheduled Tribes and other Backward classes but  the State  Government wrongly refused to approve the said  list. He urged that the mode of selection and procedure for making reservation as prescribed by the Government Order dated  9th July 1975 was not applicable to the selection as  advertise- ment had been issued in May 1975, and the process of  selec- tion had already commenced prior to the issue of the Govern- ment Order dated 9th July 1975. The revised list of success- ful  candidates prepared by the Commission pursuant  to  the Government’s  directions dated 23rd April 1976  was  illegal and contrary to the Rules. Learned counsel for the  respond- ents submitted that the Government Order dated 9th July 1975 prescribed  mode of selection and it also prescribed  proce- dure for making reservations for Scheduled Castes, Scheduled Tribes  and  other Backward classes in supersession  of  the earlier  Government  Order including  the  Government  Order dated 6th September 1969 therefore the Commission was 245 found to follow the procedure as prescribed in the aforesaid order  in preparing the select list. Since the list of  suc- cessful candidates had not been prepared in accordance  with the  Government Order dated 9th July 1975 the State  Govern- ment  was  justified  in insisting upon  the  Commission  to prepare  the list afresh in accordance with  the  directions contained in the aforesaid Government Order.     The  question which requires determination is, which  of the  two Government Orders, namely, 6th September  1969  and 9th July 1975, the Commission was required to be followed in preparing  the select list for appointment to the  posts  of Tehsildars  as both the Government Orders  contained  direc- tions for making reservations in preparing the select  list. In order to determine the question, it would be necessary to refer  to  the directions contained in  the  two  Government Orders.  There  is no dispute that the  recruitment  of  in- service  candidates for the 50 posts of Tehsildars  in  dis- pute,  was regulated by the 1975 Rules framed under  Article 309 of the Constitution as published in the Gazette on 20th  March  1975. Rule 5 laid down that the  provisions  of Rules 7 to 14 of 1966 Rules shall mutatis mutandis apply  to

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conduct  of  competitive examination and the  provisions  of Karnataka  State Civil Services (General Recruitment)  Rules 1957  shall apply in respect of matters for which no  provi- sion  is made in the Rules. The aforesaid Rules do not  pre- scribe  any procedure for preparation of select list or  for making reservations but in view of Rule 5 the provisions  of other  Rules are made applicable. Rule 10 of  the  Karnataka Rules  1966  which provides for reservations  for  Scheduled Castes,  Scheduled  Tribes and other  Backward  classes  was applicable in view of Rule 5 of 1975 Rules. Rule 10 of  1966 Rules is as under: "10. Reservation for Scheduled Castes, Scheduled Tribes  and other  backward classes--(1) There shall be  reservation  of vacancies  for  candidates belonging  to  Scheduled  Castes, Scheduled  Tribes and other Backward Classes to  the  extent provided  for  by the Government by any general  or  special orders.           (2)  In filling the vacancies to reserved,  candi- dates who are members of the Scheduled Castes and  Scheduled Tribes  and other Backward Classes shall be  considered  for appointment  in  the  order of merit in  which  their  names appear in the list of successful candidates irrespective  of their relative rank as compared with other candidates and to services according to the reservation made for them in  such services. 246           (3)  If a sufficient number of candidates who  are members of the Scheduled Castes, Scheduled Tribes and  other backward classes are not available for filling up the vacan- cies reserved for them, such vacancies shall be filled up by the appointment of other candidates in the list." Pursuant  to Clause (1) of Rule 10 of the  State  Government has been providing for reservation of vacancies in favour of candidates  belonging to Scheduled Castes, Scheduled  Tribes and  other  Backward classes by means  of  executive  orders issued  from  time to time. The Government Order  dated  6th September  1969, was issued under Rule 10(1) which  provided that reservations for appointment to post in the State Civil Service  shall  continue to be made in favour  of  Scheduled Tribes,  Scheduled Castes and other Backward classes to  the extent of 3%, 15% and 30% respectively, where the posts  are filled-up  by direct recruitment. Para 5 of  the  Government Order  directed  that the Commission  and  other  recruiting authorities shall follow the procedure prescribed in  Annex- ure  2  to the Government Order in making  reservations  and preparing  list of selected candidates. There is no  dispute that  the Commission had prepared the select list which  was published  on 18th March 1976 in accordance with the  proce- dure  laid down in Annexure 2 to the Government Order  dated 6th September 1969.     During  the pendency of selection, the State  Government issued the order dated 9th July 1975 revising the extent  of reservation and also prescribing a different mode of  selec- tion.  Para 4 of that Government Order laid down that  while making appointment to the State Civil Services,  reservation in  favour of Scheduled Castes, Scheduled  Tribes,  Backward Tribes  and  other  Backward classes shall be  made  to  the extent  of  15%,  3%, 3% and 28% respectively,  in  case  of direct  recruitment.  Para 6 of the Order  further  directed that  in case of direct recruitment where the  selection  is made by the Public Service Commission or any other  recruit- ing authority, the procedure as prescribed in Annexure 2  to the Order shall be followed in preparing the list of select- ed  candidates.  Annexure "to the Order prescribed  mode  of selection,  which is quite different than that contained  in

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Annexure 2 to the Government Order dated 6th September 1969. It is not necessary to go into the details of the two  modes as there is no dispute that the Commission had followed  the procedure as prescribed under Annexure .? to the Government. Order dated 6th September 1969 and the list, so prepared was not approved by the State Government as it was of the  opin- ion  that  the Commission should have followed the  mode  of selection as contained in Annexure 2 to the Government Order dated 247 9th July 1975 in preparing the select list.     It appears that the Commission insisted before the State Government  that in view of Para II of the Government  Order dated 9th July 1975 reservations made in favour of Scheduled Castes, Scheduled Tribes and other Backward classes  already notified before the issue of Government Order dated 9th July 1975  remain unchanged therefore the provisions of the  Gov- ernment  Order dated 6th September 1969 had to  be  followed both  in regard to reservations and the mode  of  selection. The  State  Government by its Order dated  23rd  April  1976 refused to accept the Commission’s plea and it directed  the Commission to prepare a revised list in accordance with  the provisions  of  Government Order dated 9th  July  1975.  The State  Government while rejecting the Commission’s plea  and issuing the aforesaid direction made observations as under: "Para 11 of the G.O. dated 9th July 1975 supersedes a11  the previous  Government  Orders cited in the preamble  to  that order, including the G.O. dated 6th September 1969. The same para  states that the order, came into force with  immediate effect,  but makes only one exception i.e. in the matter  of reservations  already made in the cases of posts  and  serv- ices,  for which advertisement had been issued prior to  the coming  into  force of the G.O. dated 9th  July  1975.  This means  that  except in the matter of  reservations  made  in posts for which applications had already been called for, in all other matters the provisions of the G.O. dated 9th  July 1975 would apply. The words are clear that the intention  is also  clearly spelt out. Hence so far as the mode of  selec- tion is concerned, the one prescribed in Annexure II to  the G.O. dated 9th July 1975 will have to be followed in respect of  all  selections made after that date  either  a  literal construction  or  a harmonious construction of  the  various clauses  of the G.O. dated 9th July 1975 leads to the  above conclusion. For these reasons the Commission’s view that  in respect  of posts already advertised prior to the  issue  of the Government Order dated 9th July 1975, the mode of selec- tion  prescribed in the earlier Government Orders and to  be followed is not acceptable to Government."     In our opinion the State Government’s view was  contrary to  the directions contained in para 11 of its  Order  dated 9th July 1975, which is as under: 248           1. This Government Order supersedes the Government Order  cited in the preamble and shall come into force  with immediate effect, subject to the provision that the reserva- tion  already made for any category of posts or service  and advertised  before the issue of this Government Order  shall remain  unchanged and shall be deemed to have  been  validly made.  All  official memoranda, Circulars  and  instructions issued  in pursuance of the Government Orders superseded  by this  Government  Order shall also be deemed  to  have  been superseded  if such instructions are contrary to the  provi- sions of this Government Order."                                      (emphasis supplied). Indisputably  the aforesaid Government Order superseded  all

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earlier  Government  Orders  on the  subject  including  the Government  Order dated 6th September 1969 but while  super- seding  those orders provision was made in para 11  to  save the  selection which was pending. Para 11    clearly  stated that though earlier Government Orders laying down percentage of  reservation required to be made in favour  of  Scheduled Castes, Scheduled Tribes and other Backward classes  includ- ing  the  mode of selection in preparing  the  select  list, stood superseded, but it saved the reservations made for any category  of post or service in respect of which  advertise- ment had already been issued before the issue of the Govern- ment  Order dated 9th July 1975. This follows from  the  ex- pression  "reservations  already made for  any  category  of posts  or  service and advertised before the issue  of  this Government Order shall be deemed to have been validly made". These  directions  stipulated that where  reservations  were already  made  and advertisement had been  issued,  and  the selection  was  pending  on 9th July 1975,  the  same  shall remain unaffected and the selection shall be made in accord- ance with the earlier Government Orders, and the same  shall be  treated  to have been made validly. Para 11  is  in  the nature  of a saving clause, its object and purpose,  was  to save  the  selections in respect of  which  proceedings  had already been initiated by issuing advertisement. In view  of the Government’s own directions, as contained in para 11  of its  Order the amended mode of selection was not  applicable therefore  the Commission rightly followed the mode  of  the selection  prescribed under the Government Order  dated  6th September  1969  as admittedly the said Order was  in  force prior to 9th July 1975.     The State Government’s interpretation of para 11 of  its Order dated 9th July 1975 was incorrect and wrong. It failed to  appreciate  that in the instant case  reservations.  had already been made and 249 notified under the advertisement published on 18th May 1975. Therefore  the conditions precedent contemplated in para  11 were fully satisfied. In this view the selection made by the commission  by  following the reservations and the  mode  of selection as prescribed under the provisions of the  Govern- ment Order dated 6th September 1969 were deemed to have been made validly in accordance with the provisions of para 11 of the  Government Order. It is relevant to point out that  the Government Orders dated 6th September 1969 and 9th July 1975 both  had been issued by the Government in exercise  of  its statutory  power under Rule 10 of 1975 Rules, making  provi- sions for reservations and prescribing mode of selection.  A Government  Order  issued in exercise  of  statutory  powers acquires  statutory  force, therefore, the  provisions  con- tained  in  the aforesaid Government  Orders  including  the provisions of para 11 of the Government Order dated 9th July 1975  also  acquired  statutory character.  Though  para  11 superseded earlier Government Orders but it expressly  saved the pending selections where reservations were already  made and  advertisement had been issued. Para 11 being  statutory in  nature was binding on the Government and the  Government had no authority to direct the Commission by means of Admin- istrative Order to revise the Select List in accordance with the  amended mode of selection as prescribed under the  Gov- ernment’s  Order  dated 9th July 1975. In  our  opinion  the State Government was bound to give full effect to the provi- sions of Para 11 of the Government Order dated 9th July 1975 and  therefore directions contained in its order dated  23rd April 1976 were illegal.     There  is  yet  another aspect of  the  question.  Where

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advertisement  is  issued inviting applications  for  direct recruitment  to a category of posts, and  the  advertisement expressly states that selection shall be made in  accordance with  the  existing Rules or Government Orders,  and  if  it further  indicates the extent of reservations in  favour  of various  categories, the selection of candidates in  such  a case must be made in accordance with the then existing Rules and  Government  Orders. Candidates who apply,  and  undergo written  or  viva voce test acquire vested right  for  being considered  for selections in accordance with the terms  and conditions contained in the advertisement, unless the adver- tisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with  the terms  and  conditions set out in the advertisement  as  his right  crystalises on the date of publication of  advertise- ment, however he has no absolute right in the matter. If the recruitment  Rules  are amended retrospectively  during  the pendency of selection, in that event selection must be  held in accordance with the amended Rules. Whether the Rules have 238 retrospective  effect  or not, primarily  depends  upon  the language of the Rules and its construction to ascertain  the legislative  intent. The legislative intent  is  ascertained either by express provision or by necessary implication,  if the amended Rules are not retrospective in nature the selec- tion  must  be regulated in accordance with  the  Rules  and orders  which  were in force on the date  of  advertisement. Determination of this question largely depends on the  facts of  each case having regard to the terms and conditions  set out in the advertisement and the relevant Rules and  orders. Lest there be any confusion, we would like to make it  clear that  a candidate on making application for a post  pursuant to  an advertisement does not acquire any vested  right  for selection, but if he is eligible and is otherwise  qualified in  accordance  with the relevant Rules and the  terms  con- tained in the advertisement, he does acquire a vested  right for  being considered for selection in accordance  with  the Rules  as  they  existed on the date  of  advertisement.  He cannot be deprived of that limited right on the amendment of Rules  during the pendency of selection unless  the  amended Rules are retrospective in nature.     In  B.N.  Nagarajan & Ors. v. State of  Mysore  &  Ors., [1966]  3  SCR 682, the dispute related to the  validity  of appointment  of  Assistant  Engineers.  The  Public  Service Commission invited applications by issuing Notifications for appointment  to the post of Assistant Engineers  in  October 1958,  May 1959 and April 1960. The Commission  made  selec- tion, interviewed the candidates and sent the select list to the  Government  in October/November 1960.  But  before  the appointment could be made the Mysore Public Works, Engineer- ing  Department Services (Recruitment) Rules 1960 came  into force  which  prescribed  different  provisions  than  those prescribed in the earlier Notifications in pursuance whereof the  Public Service Commission had made the selections.  The validity  of the appointment made by the Government  on  the basis  of  the selection made by the  Commission  was  chal- lenged.  The High Court quashed the selection  and  appoint- ments  made  in  pursuance thereof. On  appeal  before  this Court,  validity  of the appointment were  assailed  on  the ground  that since the appointments had been made after  the amendment  of  the Rules the appointments should  have  been made  in accordance with the amended Rules.  A  Constitution Bench  of  this Court rejected the contention  holding  that since the whole procedure of issuing advertisement,  holding interviews  and recommending the names having been  followed

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in  accordance  with the then existing Rules  prior  to  the enforcement  of the amended Rules the appointments  made  on the  basis of the recommendation made by the Public  Service Commission could not be rendered invalid. 250     In  Y.V. Rangaiah v.J. Sreenivasa Rao, [1983] 3 SCC  285 similar Question arose relating to recruitment by promotion. The question was whether promotion should be made in accord- ance  with  the Rules, in force on the  date  the  vacancies occurred or in accordance with the amended Rules. The  Court observed as under: "The  vacancies  which occurred prior to the  amended  rules would  be governed by the old rules and not by  the  amended rules.  It is admitted by counsel for both the parties  that henceforth  promotion to the post of Sub-Registrar Grade  II will  be according to the new rules on the zonal  basis  and not  on  the Statewise basis and, therefore,  there  was  no question  of challenging the new rules. But the question  is of filling the vacancies that occurred prior to the  amended rules. We have not the slightest doubt that the posts  which fell vacant prior to the amended rules would be governed  by the old rules and not by the new rules." The same view was taken in P. Ganeshwar Rao & Ors. v.  State of Andhra Pradesh & Ors., [1988] Supp. SCC 740. Similar view was taken in A.A. Calton v. Director of Education & Ors.,  [ 1983] 3SCC 33. It is a well accepted principle of  construc- tion  that a statutory rule or Government Order is  prospec- tive in nature unless it is expressly or by necessary impli- cation made to have retrospective effect. Where  proceedings are  initiated for selection by issuing  advertisement,  the selection should normally be regulated by the then  existing rules  and Government Orders and any amendment of the  rules or  the  Government Order pending the selection  should  not affect  the validity of the selection made by the  selecting authority or the Public Service Commission unless the amend- ed rules or the amended Government orders issued in exercise of  its  statutory power either by express provision  or  by necessary  intendment indicate that amended Rules  shall  be applicable to the pending selections. See P. Mahendra & Ors. v.  State  of Karnataka & Ors., [1989] 4 Judgment  Today  SC 459.     In  the  instant case, para 11 of the  Government  Order dated  9th July 1975 made the Government’s  intention  clear that  the  revised directions which were contained  in  that Government  Order would not apply to the selections  in  re- spect of which advertisement had already been issued, there- fore the mode of selection as contained in Annexure 2 to the Government  Order dated 9th July 1975 was not applicable  to the selection for filling the 50 posts of Tehsildars pending before the Public Service Commission. We are, therefore,  of the opinion that the 251 select list including the additional list as prepared by the commission  and published in March 1976 was legal and  valid and  though Government wrongly refused to approve the  same. The State Government’s Order dated 23rd April 1976 directing the Commission to prepare fresh list in accordance with  the mode of selection as contained in Annexure 2 to the  Govern- ment Order dated 9th July 1975 was illegal consequently  the select  list prepared afresh by the Commission  pursuant  to the directions of the State Government is not sustainable in law.  Since the additional list prepared by  the  Commission contained the names of the appellants, they were entitled to appointment to posts of Tehsildars. We accordingly allow the appeals set aside the order of the High Court and direct the

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State  Government to appoint the appellants to the posts  of Tehsildars, on the basis of additional list published by the Commission on 18th March 1976.     During the pendency of the writ petition before the High Court, appointments were made to the posts of Tehsildars  on the basis of the revised list prepared by the Commission  in accordance with the directions of the State Government dated 23rd  April 1976. Pursuant to the interim direction  of  the High Court the appointment orders contained a specific  term that the appointments would be subject to the result of  the writ petition filed by the appellants. Since the  appellants have succeeded, the respondents’ appointment is liable to be set aside. The respondents have been working for a period of about  14  years, it would cause great hardship to  them  if their  appointment  is  quashed, and they  are  directed  to vacate  the office which they have been holding  during  all these  years.  At  the same time the  appellants  have  been wrongly  denied  their  right to the  posts  of  Tehsildars. Having  regard to these facts and circumstances, we  are  of the  opinion that it would be expedient in the  interest  of justice  not to interfere with the respondents’  appointment but  at the same time steps should be taken to  enforce  the appellants’ right to the posts of Tehsildars. In this  view, we direct the State Government to appoint the appellants  on the posts of Tehsildars with retrospective effect, but if no vacancies  are  available the State Government  will  create supernumerary posts of Tehsildars for appointing the  appel- lants  against those posts. We further direct that for  pur- pose of seniority the appellants should be placed below  the last  candidate  appointed  in 1976, but they  will  not  be entitled to any back wages. The appellants will be  entitled to promotion if otherwise found suitable. In the circumstances of the ,case, parties shall bear  their own costs. S.B.                                                 Appeals allowed. 252