ivil Appeal No 3948 of 1987
From the Judgment and Order dated 3091987 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 BRL Iyengar RB Mehrotra NP and EC Vidyasa gar for the Appellants
PR Ramaseesh and AK Gupta for the Respondents
Anil Dev Singh RB Masodkar and KL 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 2891983 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 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 226 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 145
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 2891983 inviting applications for appointment to the post of Motor Vehicle Inspectors on the ground that after 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 2891983 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 6101983 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 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 AA Calton vs Directorof Education  Anr this Court considered the validity of appointment of Principal by the Director of Education made under Section 16F of the UP 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 16F4 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 16F4 of the Act was amended on August 18 1975 taking away the power of the Director to make appointment under Section 16F4 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 UP 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 16F4 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 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 16F4 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 UP 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 vs
T Ramakrishna Rao 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 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 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 2891983 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 YY Rangaiah vs J Sreenivasa Rao 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 vs Government of Andhra Pradesh 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 3203 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 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 3203 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 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
PSS Appeal  Petition allowed


Summary:
This Court rendered a judgment in this case on 3111989 confirming the conviction of both the respondents and reduc ing the sentence of imprisonment from 10 years to 5 years by invoking the proviso to Section 3762 IPC
The petitioner State has sought review of the said judgment
Dismissing the review petitions this Court HELD 1
As per order XL Rule 1 of Supreme Court Rules 1966 review in criminal proceedings is limited to errors apparent on the face of record
In the instant case there is no error apparent on the face of the record necessitating review of the judgment
498F PN Eswara Iyer and Ors
vs Registrar Supreme Court of India  Sow Chandra Kanta and Anr
vs Sheikh Habib   Sheonandan Paswan vs State of Bihar and Ors  relied on
The very confirmation of the conviction accepting the sole testimony of the victim rejecting the arguments of the defence counsel is itself a clear indication that this court was of the view that the character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused or imposing punishment 497 under Section 376 IPC
Such factors are wholly alien to the very scope and object of Section 376 and can never serve either as mitigating or extenuating circumstances for impos ing the sub minimum sentence with the aid of the proviso to Section 3762 of the IPC 499G H 3
This Court neither characterised the victim as a woman of questionable character and easy virtue nor made any reference to her character or reputation in any part of the judgment but used the expression conduct in the lexigraph ical meaning for the limited purpose of showing as to how she had behaved or conducted herself in not telling any one for about 5 days about the sexual assault perpetrated on her till she was examined on 2831984 by the sub Inspector of Police
The word conduct was not used with reference to the character or reputation of the victim
500B C 4
This Court is second to none in upholding the decency and dignity of womanhood and this Court has not expressed any view in the judgment that character reputation or status of a raped victim is a relevant factor for considera tion by the Court while awarding the sentence to a rapist
500D