Service Law – Uttar Pradesh Subordinate Services Selection Commission Act, 2014 – s.15 – Uttar Pradesh Direct Recruitment to Group ‘C’ Posts (Mode and Procedure) Rules, 2015 – rr. 1, 2, 8(2) – Uttar Pradesh Gram Panchayat Adhikari Service Rules, 1978 – rr. 15, 15(1), 15(4), 16(5) – Carry-forward vacancies – Selection Process – An advertisement for filling up of Group ‘C’ Posts of Gram Panchayat Adhikari was made – In 2015, the selection process was completed in accordance with the Uttar Pradesh Direct Recruitment to Group ‘C’ Posts (Mode and Procedure) Rules, 2015 (Rules 2015) as per the Uttar Pradesh Subordinate Services Selection Commission Act, 2014 (Act 2014) – Result was declared in 2016 and appointment letters were served in 2017 – Meanwhile in 2016, Uttar Pradesh Gram Panchayat Adhikari Service Rules, 1978 (Rules 1978) were amended – The process for the next selection was commenced by taking note of the carry-forward vacancies – The respondents and impleading applicants those who gone through the selection process but have not find their place in the list sent by the Uttar Pradesh Subordinate Services Selection Commission (UPSSC) to appointing authority filed Writ Petition which was dismissed by Single Judge – Division Bench overturned the Single Judge judgment interpreting Rule 15 of 1978 Rules and directed the appointing authority to consider the candidates waiting in the queue based upon their performance for the vacancies that arose due to the failure of the selected candidate to join – Review Petition was filed on the ground that 1978 rule is not applicable instead Rules 2015 is applicable – Review petition was dismissed – Appellant challenged both the orders before Supreme Court – Held:No vested right of the unsuccessful candidate to insist upon their consideration, in the absence of any such rule requiring for the preparation of a waiting-list – Un-selected candidates wanted to press into service a part of the 1978 Rules while accepting the 2015 Rules – Such a & ORS.
selective adoption is not permissible under law, as no party can be allowed to approbate or reprobate – Merely because the Appellant sought to amend the 1978 Rules subsequently in 2016, it cannot be presumed that the 1978 Rules particularly with respect to Rule 15 continue to exist in the statute book – Judgment of Single Judge of the High Court restored.
Allowing the appeals, the Court
HELD: 1.It is not open to the candidate to contend to the contrary so that he can have the best of both sets of rules. Not only is there a difference in the mode of selection, but also in the constitution of recruiting authority as well. It is pertinent to note, that under the 2015 Rules, there is no such procedure for preparing a waiting-list, as the Respondents seek to contend. [Para 23][1187-G]
2. Even under the 1978 Rules, the existence of any waitinglist in operation to be filled up at a later point of time, when a certain candidate does not join was not found. Such a list has been provided under Rule 15(4) of the 1978 Rules only to facilitate the appointing authority to fill up the vacancies. Thus, after the vacancies are filled up, the door for the other candidates gets closed. [Para 24][1187-H; 1188-A]
3. The same is the position under the 2015 Rules by which the Commission is required to send the merit list alone to the appointing authority which it actually did and in case of non-joining, the vacancies are carried forward to the next process of selection, as has been rightly done by the authority in the present case. An employer shall always have adequate discretion with an element of flexibility in selecting an employee. Interference can only be made when a selection is arbitrary or contrary to law, which we do not find to be the case in the present matter. The approach of the High Court is like a visually impaired person looking for a black cat in a dark room when the cat itself is not there. [Para 25][1188-B-C]
4. Now coming to the question of repugnancy between the two Rules, namely, the 1978 Rules, being a special Rule, and the general Rule introduced in the year 2015. The 1978 Rules do not exist in the statute once the 2015 Rules came into being. By the introduction of the 2014 Act, the legislature in its wisdom assigned the role of filling up the Class ‘C’ posts to the Commission. This Court has no difficulty in appreciating the legal contentions raised by the Respondents, however, the decisions rendered do not have any application, considering the inconsistency between the two sets of rules. The two sets of rules to be inconsistent with each other, it is clear that the later rules, even though general in nature, will govern the field. [Para 26][1188-D-F]
5. On a perusal of the judgment rendered by the High Court, as found earlier, the impugned decisions are made without considering the appropriate provisions despite an endeavour being made drawing its attention to the same. The High Court in our considered view did not take note of the grounds raised in the Review Petition. In a proceeding initiated under Article 226 of the Constitution of India, the scope of review has to be looked at differently, facilitating an enlarged view. The scope of Rule 15 and the non-availability of any provision for a waiting list in the 2015 Rules is already discussed. [Para 33][1191-G-H; 1192-AB]
6. Accordingly, the appeal stands allowed and the impugned judgments dated 09.08.2018 and 30.10.2019 are set aside and consequently the order passed by the Single Judge stands restored. [Para 34][1192-B]
Mohan Karan v. State of U.P. (1998) 3 SCC 444: [1998]
2 SCR 328; Surinder Singh v. State of Punjab (1997) 8 SCC 488 : [1997] 3 Suppl. SCR 538; Union of India v. G.R. Prabhavalkar (1973) 4 SCC 183 : [1973] 3 SCR 714; S.S. Balu v. State of Kerala (2009) 2 SCC 479 : [2009] 1 SCR 196; Maya Mathew v. State of Kerala (2010) 4 SCC 498 : [2010] 3 SCR 16; V. K. Girija v. ReshmaParayil [2019] 2 SCC 347 : (2018) 14 SCR 1036; Chief Information Commissioner v. High Court of Gujarat 2020) 4 SCC 702; Dinesh Kumar Kashyap & Ors. v. South East Central Railway & Others (2019)
12 SCC 798 : [2018] 14 SCR 947; Union of India v. N Murugesan (2022) 2 SCC 25; Vallampati Sathish Babu v. State of A.P. (Civil Appeal No. 2473 of 2022); Ajoy & ORS.
Kumar Banerjee v. Union of India (1984) 3 SCC 127: [1984] 3 SCR 252; Anupal Singh v. State of U.P. (2020)
2 SCC 173 : [2019] 12 SCR 1071; K. Manjusree v. State of A.P. & Anr. (2008) 3 SCC 512 : [2008] 2 SCR 1025; Rajiv Kumar Srivastava & Anr. SLP (C) CC No. 10604 of 2013 –referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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