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PETITIONER: P. MAHENDRAN

       Vs.

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT05/12/1989

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) VENKATARAMIAH, E.S. (CJ) KASLIWAL, N.M. (J)

CITATION:  1990 AIR  405            1989 SCR  Supl. (2) 385  1990 SCC  (1) 411        JT 1989 (4)   459  1989 SCALE  (2)1274  CITATOR INFO :  R          1990 SC1233  (13)  RF         1991 SC1818  (5)

ACT:     Civil  Services:  Karnataka   General  Service    (Motor Vehicles  Branch)  Recruitment Rules,  1962:  Motor  Vehicle Inspectors--Recruitment for--State Public Service Commission processes   applications-Holds   interviews--Rules   amended before select list finalised--Effect of--Select list--Valid- ity of.

HEADNOTE:     The  Karnataka General Service (Motor  Vehicles  Branch) Recruitment  Rules, 1962 (as amended in 1976) laid down  the minimum  qualification of Diploma in Automobile  Engineering or Mechanical Engineering for direct recruitment to the post of  Motor Vehicle Inspectors. The Karnataka  Public  Service Commission  issued  an advertisement on September  28,  1983 inviting applications for the said post stating specifically that  the  selection shall be made in  accordance  with  the Recruitment  Rules,  1976  and that the  candidate  must  be holder  of Diploma in Automobile Engineering  or  Mechanical Engineering. After scrutiny of the applications the  Commis- sion issued letters for interview to the suitable candidates and commenced the holding of interviews in August, 1984. The process  of selection, however, could be completed  only  on June 2, 1987 on account of interim orders issued by the High Court at the instance of candidates seeking reservation  for local  candidates. The result was declared on June 22,  1987 and  published  in the Karnataka Gazette  dated  23rd  July, 1987. Thereafter, the selected candidates were given intima- tion of their selection and the State Government took  steps for  imparting them three months training before  appointing them as Motor Vehicle Inspectors.     In  the  meanwhile,  the State  Government  amended  the Recruitment Rules by a notification dated May 4, 1987  omit- ting qualification of Diploma in Mechanical Engineering  for the  said  post. Thereupon some of the candidates  who  were unsuccessful at the selection preferred applications  before the  Karnataka  Administrative  Tribunal  for  quashing  the

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select  list and the notification dated September  28,  1983 inviting applications on the ground that after the amendment of  Rules  in 1987 no person holding Diploma  in  Mechanical Engineering was qualified for 386 appointment  to the said post. The State Government as  well as  the appellants both contested the applications  and  as- serted that the 1987 amendment to the Recruitment Rules  was not retrospective and that the amended rules did not  affect the selections which were in the process of finalisation  by the Commission.     Allowing the applications, the Tribunal held that  after the  amendment  of  the Recruitment Rules in  May  1987  the Commission could not make selection or determine the  result on  the  basis of the Rules which existed prior to  May  14, 1987 and as such the selection of candidates holding Diploma in Mechanical Engineering was illegal as they had ceased  to be  eligible  for appointment to the post of  Motor  Vehicle Inspectors  with effect from the date of publication of  the amending  Rules. Consequently it quashed  the  advertisement issued  under the Notification dated September 28,  1983  as well  as  the select list published by  the  Commission  and directed the Commission to invite fresh applications and  to make selections in accordance with the amended Rules.     Allowing  the appeal and the writ petition preferred  by the selected candidates, the Court,     HELD: 1. The Tribunal was in error in setting aside  the select list preferred by the Commission. 1397H]     2.1 If a candidate applies for a post in response to  an advertisement  issued  by  a Public  Service  Commission  in accordance  with the recruitment rules, he acquires a  right to  be considered for selection in accordance with the  then existing  rules. This right cannot be affected by  amendment of  any  rule unless the amending rule is  retrospective  in nature. 1397H]     In  the  instant case, the advertisement issued  by  the Commission on September 28, 1983 was in accordance with  the Recruitment  Rules of 1976 under which the  appellants  were eligible for appointment. The process of selection which had commenced on receipt of the applications, however could  not be completed on account of the interim orders issued by  the High  Court. The select list was finalised by June  2,  1987 and  the result published in the Karnataka Gazette  of  July 23, 1987. The selected candidates were also intimated by the Commission by separate letters. If there had been no interim orders the appellants would have been appointed much  before the amendment of Rules on May 4, 1987. [395C; 390G; 391D] 387     2.2  Construction of amending Rules should be made in  a reasonable manner to avoid unnecessary hardship to those who had  no  control over the subject matter. Every  statute  or statutory  Rule is prospective unless it is expressly or  by necessary implication has retrospective effect. Unless there are words in the statute or in the Rules showing the  inten- tion to affect existing rights the Rules must be held to  be prospective.  If  a Rule is expressed in language  which  is fairly  capable  of  either interpretation it  ought  to  be construed as prospective only. In the absence of any express provision  or necessary intendment the rule cannot be  given retrospective  effect except in matter of procedure.  [392A; 391E-F]     In the instant case, the amending Rule of 1987 does  not contain  any express provision giving the  amendment  retro- spective  effect nor there is anything therein  showing  the necessary  intendment in enforcing the Rule with  retrospec-

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tive  effect.  The  amended Rule, therefore,  could  not  he applied to invalidate the selection made by the  Commission. [391F-G; 393E-F]     A.A.  Calton v. Director of Education & Anr.,  [1983]  3 SCC 33, applied.     State of Andhra Pradesh v. T. Ramakrishna Rao, [1972]  2 SCC 830, referred to.     Y.Y. Rangaiah v. J. Sreenivasa Rao, [1983] 3 SCC 284 and l.J.  Divakar v. Government of Andhra Pradesh, [1982] 3  SCC 341, distinguished.     3. The order of the Tribunal dated September 13, 1987 is set aside. The State Government is directed to make appoint- ment  to the posts of Motor Vehicle Inspectors on the  basis of the select list prepared and finalised by the Commission. [398A]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3948  of 1987.     From  the  Judgment  and Order dated  30.9.1987  of  the Karnataka Administrative Tribunal in Application No. 1716 of 1987. WITH Civil Writ Petition No. 163 1 of 1987. (Under Article 32 of the Constitution of India). 388     B.R.L. Iyengar, R.B. Mehrotra, (N.P.) and E.C.  Vidyasa- gar for the Appellants. P.R. Ramaseesh and A.K. Gupta for the Respondents.     Anil  Dev Singh, R.B. Masodkar and K.L. Taneja  for  the Intervener. The Judgment of the Court was delivered by     SINGH,  J. This appeal is directed against the  judgment and  order of the Karnataka Administrative Tribunal,  Banga- lore  dated  September 30, 1987  quashing  Karnataka  Public Service  Commission’s Notification dated 28.9.1983  inviting applications for recruitment of Motor Vehicle Inspectors and the  select list prepared by it for appointment to the  post of Motor Vehicle Inspectors and further directing the Public Service  Commission to invite fresh applications in  accord- ance with the amended Rules. Some of those candidates  whose names  were  included  in the select list  prepared  by  the Public  Service  Commission for appointment to the  post  of Motor  Vehicle Inspectors have filed a writ  petition  under Article 32 of the Constitution of India for the issuance  of directions  to the State Government of Karnataka for  making appointments  to the post of Motor Vehicle  Inspectors  from the select list prepared by the Commission. Since the  ques- tions involved in the appeal by special leave filed  against the  order of the State .Tribunal and the writ petition  are common,  we consider it proper to dispose of the same  by  a common judgment.     The dispute involved in the present cases relates to the selection  and  appointment  of  Motor  Vehicle  Inspectors. Recruitment  to the said post is regulated by the  Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1962  (hereinafter referred to as ’the Rules’) framed  under Article  309  of the Constitution. These Rules  provide  for direct  recruitment to the post of Motor Vehicle  Inspectors and it further lays down the minimum qualification requiring a candidate to be holder of Diploma in Automobile  Engineer- ing or Mechanical Engineering. In 1978 the Karnataka  Public Service  Commission held selections and about 200  posts  of

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Motor  Vehicle  Inspectors were filled up from  amongst  the candidates holding Diploma in Mechanical Engineering and  in Automobile  Engineering.  On September 28, 1983  the  Public Service Commission issued an advertisement (published in the Karnataka Gazette on October 6, 1983) inviting  applications for 56 posts of Motor Vehicle Inspectors which was later  on increased to 102 389 posts. The advertisement specifically stated that the selec- tion shall be made in accordance with the Recruitment  Rules 1976  and it further stated that a candidate  for  selection must  be  holder  of Diploma in  Automobile  Engineering  or Mechanical Engineering. The appellants/ petitioners (in writ petition) who were holding Diploma in Mechanical Engineering alongwith others applied for selection to the post of  Motor Vehicle  Inspectors.  The Commission after scrutiny  of  the application forms issued letters for interview to the  suit- able candidates and the Commission commenced the holding  of interviews  in August, 1984. It appears that the  Commission refused to interview some candidates who were competing  for selection against the reserved seats for ’local  candidates’ on  the ground that they were not entitled to be treated  as ’local candidates’ as they had not actually worked as ’local candidates’  in  the post of Motor  Vehicle  Inspectors  and further they had secured low percentage of marks, they  were further  not  entitled to be interviewed against  the  seats earmarked for general pool as the marks secured by them were less  than  the  percentage of marks obtained  by  the  last candidate  called  for interview.  The  candidates  claiming reserved  seats  as  ’local candidates’ filed  a  number  of petitions  under Article 226 of the Constitution before  the High Court of Karnataka and obtained stay orders as a result of which the selection could not be completed. Later interim orders  were modified by the High Court and  the  Commission was permitted to proceed with the selection reserving  seats for  the  petitioners. The High Court further  modified  its order  at  a later stage permitting the Commission  to  make selection and appointment with a condition that the appoint- ments  so made will be subject to the decision of  the  writ petitions.  Thereafter  the  Commission  resumed  interviews again  and  it completed the same by 2nd June 1987  and  de- clared  the result of the selection on 22.6. 1987 which  was published  in the Karnataka Gazette dated 23rd  July,  1987. The  selected  candidates  were given  intimation  of  their selection and the State Government took steps for  imparting them three months’ training before appointing them as  Motor Vehicle Inspectors.     Meanwhile, the State Government of Karnataka amended the Recruitment  Rules by a Notification dated May 4, 1987  pub- lished in the Gazette on 14.5. 1987 omitting the  qualifica- tion  of  Diploma in Mechamcal Engineering for the  post  of Motor  Vehicle  Inspectors. Consequent to the  amendment  of Rules  the  holders of Diploma,  of  Automobile  Engineering became  exclusively eligible for appointment to the post  of Motor  Vehicle  Inspectors  and the holders  of  Diploma  in Mechanical  Engineering ceased to be eligible for  selection and  appointment to the said post. Some of those  candidates who were 390 unsuccessful  at the selection held by the  Commission  pre- ferred  applications  before  the  Karnataka  Administrative Tribunal at Bangalore for quashing the select list  prepared by  the  Commission and also for quashing  the  Notification dated 28.9.1983 inviting applications for appointment to the post  of Motor Vehicle Inspectors on the ground  that  after

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the amendment of Rules in 1987, no person holding the Diplo- ma in Mechanical Engineering was qualified for  appointment, therefore fresh selection should be made in accordance  with the amended Rules. The State Government of Karnataka as well as  the appellants both contested the applications  and  as- serted that the 1987 amendment to the Recruitment Rules were not  retrospective instead the amendments  were  prospective and  the amended Rules did not affect the  selections  which were  in the process of finalisation by the Commission.  The Tribunal  held that after the amendment of  the  Recruitment Rules  in May, 1987 the Commission could not make  selection or  determine  the result on the basis of  the  Rules  which existed prior to 14th May 1987 and as such the selection  of candidates  holding  Diploma in Mechanical  Engineering  was illegal  as  holders of Diploma  in  Mechanical  Engineering ceased  to be eligible for appointment to the post of  Motor Vehicle Inspectors with effect from the date of  publication of  the amending Rules. On these findings the  Tribunal  al- lowed the applications and quashed the advertisement  issued under the Notification dated 28.9.1983 as well as the select list  published  by  the Public Service  Commission  and  it further  issued directions to the Public Service  Commission to  invite  fresh  applications and to  make  selections  in accordance with the amended Rules. Aggrieved, the appellants who  had been selected by the Commission for appointment  to the posts of Motor Vehicle Inspectors have preferred  appeal before  this  Court. Some of the  selected  candidates  have directly  approached  this Court by means of  writ  petition under  Article 32 of the Constitution for issue of  mandamus directing  the  State  Government to  appoint  the  selected candidates.     There is no dispute that under the Recruitment Rules  as well  as under the advertisement dated 6.10.1983  issued  by the Public Service Commission, holders of Diploma in Mechan- ical  Engineering were eligible for appointment to the  post of Motor Vehicle Inspectors alongwith holders of Diploma  in Automobile Engineering. On receipt of the applications  from the  candidates  the  Commission commenced  the  process  of selection  as  it scrutinised the  applications  and  issued letters for interview to the respective candidates. In  fact the Commission commenced the interviews in August  1984  and it  had  almost completed the process of selection  but  the selection could not be com- 391 pieted on account of interim orders issued by the High Court at the instance of candidates seeking reservation for  local candidates.  The Commission completed the interviews of  all the candidates and it finalised the list of selected  candi- dates  by 2nd June 1987 and the result was published in  the State  Gazette  on 23rd July 1987. In addition to  that  the selected  candidates  were intimated by  the  Commission  by separate  letters. In view of these facts the sole  question for consideration is as to whether the amendment made in the Rules  on  14th May 1987 rendered  the  selection,  illegal. Admittedly the amending Rule does not contain any  provision enforcing the amended Rule with retrospective effect. In the absence  of any express provision contained in the  amending Rule it must be held to be prospective in nature. The  Rules which  are prospective in nature cannot take away or  impair the right of candidates holding Diploma in Mechanical  Engi- neering  as on the date of making appointment as well as  on the  date of scrutiny by the Commission they were  qualified for selection and appointment. In fact the entire  selection in  the normal course would have been finalised much  before the  amendment of Rules, but for the interim orders  of  the

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High Court. If there had been no interim orders, the select- ed  candidates  would have been appointed  much  before  the amendment  of  Rules.  Since the process  of  selection  had commenced  and it could not be completed on account  of  the interim  orders of the High Court, the appellants’ right  to selection  and appointment could not be defeated  by  subse- quent amendment of Rules.     It  is  well-settled  rule of  construction  that  every statute  or statutory Rule is prospective unless it  is  ex- pressly or by necessary implication made to have  retrospec- tive effect. Unless there are words in the statute or in the Rules  showing the intention to affect existing  rights  the Rule must be held to be prospective. If a Rule is  expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of  any express provision or necessary intendment  the  rule cannot  be  given retrospective effect except in  matter  of procedure.  The amending Rule of 1987 does not  contain  any express provision giving the amendment retrospective  effect nor there is anything therein showing the necessary  intend- ment for enforcing the Rule with retrospective effect. Since the  amending Rule was not retrospective, it could  not  ad- versely affect the right of those candidates who were quali- fied for selection and appointment on the date they  applied for  the  post,  moreover as the process  of  selection  had already  commenced when the amending Rules came into  force. The  amended  Rule could not affect the existing  rights  of those candidates who were being considered for selection  as they possessed the 392 requisite qualifications prescribed by the Rules before  its amendment moreover construction of amending Rules should  be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.     In A.A. Calton v. Directorof Education & Anr., [1983]  3 SCC 33 this Court considered the validity of appointment  of Principal  by the Director of Education made  under  Section 16F  of the U.P. Intermediate Education Act 1921.  The  High Court quashed the selection of Principal on the ground  that the appointment had been made by the Selection Committee and not  by  the Director of Education as  required  by  Section 16F(4)  of the Act. The High Court directed the Director  of Education to make selection and appointment. Pursuant to the direction  of the High Court, the Director made  appointment to  the post of Principal by his order dated March 8,  1977, but before that date, Section 16F(4) of the Act was  amended on August 18, 1975 taking away the power of the Director  to make appointment under Section 16F(4) of the Act. In view of the  amendment  of Section 16F of the Act, validity  of  the order  of  the  Director of Education dated  March  8,  1977 making appointment to the post of Principal was again  ques- tioned. The High Court dismissed the writ petition thereupon the unsuccessful party preferred appeal. This Court held  as under:               "It is no doubt true that the Act was  amended               by  U.P. Act 26 of 1975 which came into  force               on  August 18, 1975 taking away the  power  of               the  Director  to make  an  appointment  under               Section 16F(4) of  the Act in  the case of               minority  institutions. The amending  Act  did               not,  however,  provide  expressly  that   the               amendment  in question would apply to  pending               proceedings under Section 16F of the Act.  Nor               do we find any words in it which by  necessary               intendment would affect such pending  proceed-

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             ings.  The process of selection under  Section               16F  of the Act commencing from the  stage  of               calling for applications for a post up to  the               date on which the Director becomes entitled to               make  a selection under Section 16F(4) (as  it               stood  then)  is an integrated one.  At  every               stage  in  that  process  certain  rights  are               treated  in favour of one or the other of  the               candidates.  Section  16F of the  Act  cannot,               therefore, be construed as merely a procedural               provision. It is true that the legislature may               pass laws with retrospective effect subject to               the recognised constitutional limitations. But               it is equally well settled that no  retrospec-               tive  effect should be given to any  statutory               provision  so  as to impair or  take  away  an               existing right, unless               393               the  statute either expressly or by  necessary               implication  directs that it should have  such               retrospective  effect.  In  the  instant  case               admittedly  the proceedings for the  selection               had  commenced in the year 1973 and after  the               Deputy Director had disapproved the  recommen-               dations made by the Selection Committee  twice               the Director acquired the jurisdiction to make               an  appointment  from  amongst  the  qualified               candidates who had applied for the vacancy  in               question.  At  the instance of  the  appellant               himself in the earlier writ petition filed  by               him  the High Court had directed the  Director               to exercise that power. Although the  Director               in  the  present  case  exercised  that  power               subsequent  to August 18, 1975 on  which  date               the  amendment came into force, it  cannot  be               said that the selection made by him was  ille-               gal  since the amending law had no  retrospec-               tive effect. It did not have any effect on the               proceedings  which  had  commenced  prior   to               August  18, 1975. Such proceedings had  to  be               continued  in  accordance with the law  as  it               stood at the commencement of the said proceed-               ings. We do not, therefore, find any substance               in  the contention of the learned counsel  for               the  appellant that the law as amended by  the               U.P. Act 26 of 1975 should have been  followed               in the present case."     In  view  of  the above the  appellants’  selection  and appointment  could not be held as illegal as the process  of selection had commenced in 1983 which had to be completed in accordance  with law as it stood at the commencement of  the selection. The amended Rule could not be applied to  invali- date  the  selection made by the Commission.  Strangely  the Tribunal  did not follow the latest authority of this  Court as  laid down in Calton’s case, on the ground that the  view taken  in that case was contrary to the  Constitution  Bench decision  of  this  Court in State of  Andhra  Pradesh  v.T. Ramakrishna Rao, [1972] 2 SCC 830. We have carefully consid- ered  the decision but we do not find anything therein  con- trary to the view taken in Calton’s case.     In  Ramakrishna  Rao’s  case the  State  Public  Service Commission  of  Andhra Pradesh had invited  applications  in 1968  for the posts of District Munsifs. Rule 5 of  the  Re- cruitment  Rules empowered the Commission to prepare a  list of  persons  considered for the appointment to the  post  of

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District  Munsifs  after  holding such  examination  as  the Government would consider necessary. On a challenge made  by some  of the candidates the High Court held that Rule 5  was void as it 394 empowerd the Government to determine whether an  examination was necessary or not, and also the pattern of such an exami- nation, in contravention of Article 234 of the Constitution. The  High  Court further held that  the  Government  orders, pursuant to the said Rule for holding of examination by  the Commisssion was also void, having been issued under  invalid Rules. Pursuant to the judgment of the High Court the Gover- nor  amended Rule 5 after consultation with the  High  Court and the Commission as enjoined by Article 234 of the Consti- tution.  The  Commission  thereafter  issued   advertisement inviting  fresh  applications to hold  examination  for  the purpose  of filling vacancies in the post of  District  Mun- sifs, thereupon some of the candidates who had made applica- tions  in  pursuance  to the advertisement  issued  in  1968 challenged the validity of the holding of the fresh examina- tion  on the ground that since they had applied in  response to the advertisement of 1968 they could not be subjected  to written  examination under the amended Rule as it  was  pro- spective  in nature. They further asserted that the  amended Rule prescribing 200 marks for written test and equal number of marks for oral test was contrary to the earlier Rules and since they had acquired right to be considered in accordance with  Rule 5 before its amendment, they should not  be  sub- jected  to written examination and oral test as required  by the  amended Rules. The High Court partly allowed the  peti- tion and directed the Commission to hold a separate examina- tion  for those who had applied in 1968 in  accordance  with the unamended Rules and further to hold a separate  examina- tion  for  the subsequent vacancies in accordance  with  the amended Rule 5. On appeal by the State Government, a Consti- tution  Bench of this Court set aside the order of the  High Court. This Court held that since Rule 5 as it stood in 1968 had  been  declared  void the advertisement  issued  by  the Commission  inviting applications and all proceedings  taken by the Commission including the examination held  thereunder was rendered void. In this context this Court made  observa- tion that those candidates who had made applications in 1968 had  not acquired any fight as their applications  had  been made under a Rule which had been declared invalid. The Court further  held  that in the facts of that case  the  question whether amended Rule 5 was retrospective or prospective  did not arise. The Court observed as under:               "Secondly the respondents had not acquired any               right by merely applying for the posts  either               under  that rule or otherwise, to be  selected               for the posts. The Commission, therefore,  was               perfectly  justified in treating  the  earlier               applications of the respondents as invalid  on               the ground               395               that  they had been invited under  an  illegal               rule  and calling for fresh  applications  and               holding a fresh examination in respect of  all               the 200 vacancies. There was thus no  question               of any breach of Article 16, nor of any viola-               tion  of any right of the respondents as  none               was  acquired by them. Equally, there  was  no               question of the amended Rule 5, being prospec-               tive or retrospective as the Commission had to               act  afresh under the amended Rule,  the  una-

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             mended rule having been struck down and  there               being therefore no basis on which the applica-               tions of the respondents made in 1968 could be               treated as valid applications."     The above observations as relied by the Tribunal do  not apply to the facts of the instant case as the  advertisement issued by the Commission on 28.9.1983 was in accordance with the  Recruitment Rules of 1976, validity of those Rules  was not  in  question. The Rule  prescribing  qualification  was amended after four years of the advertisement, therefore the law laid down in Ramakrishna Rao’s case does not apply.  The Tribunal  committed error in ignoring the law laid  down  in Calton’s  case  by placing reliance on the  observations  of this Court in Ramakrishna Rao’s case. In our view the  prin- ciples  laid down in Calton’s case are fully  applicable  to the instant case.     In Y.Y. Rangaiah v. J. Sreenivasa Rao, [1983] 3 SCC  284 the  question was whether appointment could be made  out  of the  list of approved candidates prepared by the  appointing authority against the vacancies which had occurred prior  to the amendment of the rules. The Andhra Pradesh  Registration and Subordinate Service Rules made provision for the  prepa- ration of a list of approved candidates for appointment  and promotion in the month of September every year. In 1976  the list  of approved candidates was not prepared  meanwhile  in 1977 the original rules were amended providing for promotion or transfer to the category of LDCs for appointment as  Sub- Registrars Grade II from amongst UDCs employed in the Regis- tration and Stamp Department. A list of approved  candidates for promotion was made in accordance with the amended  Rules and appointments were made as a result of which some of  the juniors in the category of LDCs were promoted as  Sub-Regis- trars  Grade II. The Andhra Pradesh Tribunal set  aside  the appointments  and  directed the State Government to  draw  a fresh  panel  for the year 1976-77 in respect  of  vacancies arising  during  that year in accordance with the  rules  as they  existed at that stage and to make appointments in  the vacancies  pertaining  to that period on the  basis  of  the panel so drawn. On appeal this Court held 396 that the vacancies which occurred prior to the amended Rules would  be governed by the old Rules and not by  the  amended Rules. The decision does not lay down anything which may  be contrary to the view taken in Calton’s case.     We  would now consider the view taken by this  Court  in l.J.  Divakar v. Government of Andhra Pradesh, [1982] 3  SCC 34  1  as  the Tribunal has placed strong  reliance  on  the observations  made  in that decision in  setting  aside  the selection  made  by  the Public Service  Commission.  It  is necessary to ascertain the facts involved in Divakar’s case. The Andhra Pradesh Public Service Commission invited  appli- cations  for filling posts of Junior Engineers. In  response to the advertisement several candidates applied for the said post  and appeared at the viva voce test. While the  Commis- sion  was  in  process of finalising the  select  list,  the Government of Andhra Pradesh issued a Government Order under the proviso to Article 320(3) of the Constitution  excluding the posts of Junior Engineers from the purview of the Public Service CommissiOn. The Government regularised the  services of all those who were appointed by direct recruitment to the post  of  ad-hoc  Junior Engineers and  were  continuing  in service  on  August 9, 1979 without subjecting them  to  any test  written  or oral. The candidates who  had  applied  in response  to  the  advertisement issued  by  the  Commission challenged  validity of the Government Order  excluding  the

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post of Junior Engineers from the purview of the  Commission and  also the validity of the decision by the Government  to regularise the services of temporary employees. Before  this Court the Government’s power of framing regulations  exclud- ing  any post from the purview of the Commission  under  the proviso  to  Article 320(3) was conceded. It  was,  however, urged  that since the advertisement had been issued  by  the Commission  inviting  applications for the posts  of  Junior Engineer  and as the Commission was in process of  selecting candidates  the  power under the proviso to  Clause  (3)  of Article  320  of the Constitu tion could not  be  exercised. This Court rejected the contention wit! the following obser- vations:               "The  only  contention urged was that  at  the               time  when  the advertisement was  issued  the               post  of Junior Engineer was within the.  pur-               view of the Commission and even if at a  later               date  the post was withdrawn from the  purview               of the Commission it could not have any retro-               spective  effect.  There is no merit  in  this               contention  and  we are broadly  in  agreement               with  the view of the Tribunal  that  inviting               the applications for a post does not by itself               create any right to               397               the  post in the candidate who in response  to               the  advertisement  makes an  application.  He               only  offers himself to be considered for  the               post. His application only makes him  eligible               for being considered for the post. It does not               create  any  right  in the  candidate  to  the               post." After  making the aforesaid observations the  Court  further held that the relevant service Rules conferred power on  the Government  to  fill emergently the vacancies  to  the  post borne  in the cadre of service otherwise than in  accordance with  the  rules and therefore the Government had  power  to regularise temporary appointments made without the consulta- tion of the Public Service Commission. Even after  upholding the  Government order, the Court directed the Commission  to consider  the case of all those candidates who  had  applied for  the post of Junior Engineers in response to the  adver- tisement issued by the Commission and to finalise the select list on the basis of viva voce test and to forward the  same to the Government. The Court further directed the Government to make appointments from the select list before any outsid- er was appointed to the post of Junior Engineers. Thus,  the observations made by this Court as quoted earlier were  made in the special facts and circumstances of the case, which do not  apply  to the facts of the instant case.  In  Divakar’s case since the jurisdiction of the Public Service Commission had  been denuded by the Government in exercise of its  con- stitutional  power  the Commission had  no  jurisdiction  to conduct selection or prepare select list. In this background the  Court  made  observations that a  candidate  merely  by making applications does not acquire any right to the  post. It  is true that a candidate does not get any right  to  the post  by  merely making an application for the same,  but  a right is created in his favour for being considered for  the post  in  accordance with the terms and  conditions  of  the advertisement  and  the  existing recruitment  rules.  If  a candidate  applies for a post in response  to  advertisement issued  by  Public  Service Commission  in  accordance  with recruitment  Rules  he acquires right to be  considered  for selection  in accordance with the then existing Rules.  This

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right cannot be affected by amendment of any Rule unless the amending  Rule  is retrospective in nature. In  the  instant case  the Commission had acted in accordance with  the  then existing  rules and there is no dispute that the  appellants were  eligible for appointment, their selection was  not  in violation  of  the recruitment Rules. The  Tribunal  in  our opinion  was in error in setting aside the select list  pre- pared by the Commission. In  view of the above discussions, we allow the  appeal  and set 398 aside the order of the Tribunal dated September 30, 1987. We further direct the State Government to make appointments  to the  posts of Motor Vehicle Inspectors on the basis  of  the select  list prepared and finalised by the  Commission.  The writ petition is also disposed of accordingly. There will be no order as to costs. P.S.S.                                   Appeal  &  Petition allowed. ? 399