IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 8822-8823 OF 2022
[Arising out of SLP (C) Nos. 10386-10387 of 2020]
THE STATE OF UTTAR PRADESH …APPELLANT
VERSUS
KARUNESH KUMAR & ORS. …RESPONDENT(S)
J U D G M E N T
M.M. SUNDRESH, J.
1. The decision of the Division Bench of the High Court of Judicature at Allahabad
in allowing the writ petition filed by the private Respondents, setting aside the
order passed by the learned Single Judge is assailed before us. Candidates who
waited in the wings, observing the legal journey, filed applications for
impleadment seeking extended benefit of the impugned Judgment and Order.
2. The present appeals are filed by the State of Uttar Pradesh inter alia contending
that the candidates who are not part of the list forwarded by the Uttar Pradesh
Subordinate Services Selection Commission (hereinafter referred to as ‘the
Commission’) were also directed to be considered in the vacancies arising
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pursuant to the selected candidates approved by the appointing authority, not
taking up the jobs offered to the post of Gram Panchayat Adhikari, Single Cadre,
Group (C). The learned Single Judge dismissed the Writ Petition filed by the
private Respondents, which was overturned by the Division Bench on the premise
that Rule 15 of the Uttar Pradesh Gram Panchayat Adhikari Service Rules, 1978
(hereinafter referred to as “1978 Rules”), if given due interpretation, would
facilitate consideration of persons waiting in the queue based upon their
performance. An application for review was filed by the appellant inter alia
stating that the relevant rule to be applied is the Uttar Pradesh Direct Recruitment
to Group ‘C’ Posts (Mode and Procedure) Rules, 2015 (hereinafter referred to as
“2015 Rules”). The said application was dismissed without taking note of the
aforesaid contentions. The State seeks to assail both the aforesaid orders in the
present proceedings.
3. Heard Ms. Ruchira Goel, learned counsel for the Appellant and Mr. V.K. Shukla,
learned senior counsel for the Respondent Nos. 1 to 3 and Mr. M.R. Shamshad
for the Respondent No. 4.
ON FACTS:
4. An advertisement was made for the purpose of filling up of 3587 Group ‘C’ Posts
of Gram Panchayat Adhikari on 22.06.2015. The selection process was completed
in accordance with the 2015 Rules, by duly conducting a written examination
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followed by an interview. By way of abundant caution, though not necessitated,
the 1978 Rules were also amended on 22.11.2016. The final result was declared
on 24.12.2016 and appointment letters were issued during the months of April and
May, 2017. During the pendency of the writ petition, the process for the next
selection was commenced by taking note of the carry-forward vacancies. At that
point of time, the impugned orders were passed by the Division Bench of the High
Court of Allahabad.
5. The private respondents and the impleading applicants willingly took part in the
selection process. Obviously, they were not disqualified but along with others
made to go through the recruitment process of written examination and the
interview. It is to their misfortune that they did not find a place in the list sent by
the Commission to the appointing authority. Though, the entire process was done
in tune with the 2015 Rules and in exercise of the power conferred under the Uttar
Pradesh Subordinate Services Selection Commission Act, 2014 (hereinafter
referred to as the “2014 Act”), the reliance was made on the 1978 Rules which
has found favour with the High Court.
RELEVANT RULES:
6. We shall first consider all the relevant rules and definitions, with specific
reference to the provisions governing the recruitment process, to have a correct
understanding of the issue involved.
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A. Uttar Pradesh Gram Panchayat Adhikari Service Rules, 1978:
7. These rules exclusively dealt with the appointment to the post of Gram Panchayat
Adhikari, introduced by the powers conferred under the proviso to Article 309 of
the Constitution of India. It has undergone amendment in the year 1989. We are
concerned with two amendments by which the earlier Group ‘D’ posts were
converted into Group ‘C’ posts, with the change in the constitution of the
committee. The first amendment is to the rule providing for the aforesaid change
and the second one is with respect to Rule 15(1).
8. Rule 15(1) changes the composition of the Selection Committee while the
appointing authority remains the same. Rule 15(4), which was left untouched by
the subsequent amendment, enabled the Selection Committee to prepare the list
of candidates in order of merit as disclosed by the marks obtained in the interview.
It further provides for the list to be enlarged by not more than 25% of the number
of total vacancies.
9. Under the aforesaid rules, there was no written examination contemplated as
against a mere interview by the Selection Committee. No waiting list as such has
been provided expressly, though the list shall contain a larger number of names in
comparison to the vacancies. We shall now place on record the aforesaid provision
to have a better understanding.
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“Rule 15
(4) The Selection Committee shall prepare a list of candidates in order to merit as
disclosed by the marks obtained in the interview. The number of the names in the
list shall be larger (but no larger by more than 25 per cent) than the number of the
vacancies.”
B. Government Order dated 15.11.1999:
10. The Government Order was passed by the Appellant to dispense with any concept
of waiting list except in case of a selection to a single post, meaning thereby that
if a selected candidate to a single particular post is not filled up by reason of the
candidate not joining, the next in line would get a re-look on the premise that the
entire exercise done shall not go down the drain. Therefore, the object is rather
clear. Consequently, the said order hands over the selection and recruitment
process to the Public Service Commission to be applied to all the posts spanning
over the State. It was also passed in supersession of all the earlier orders.
C. Uttar Pradesh Subordinate Services Selection Commission Act, 2014:
11. By the 2014 Act, the need for an independent specialized agency for the timely
selection of Group (C) posts was felt, as could be seen from the Statement of
Objects and Reasons furnished hereunder:
“…In near past, selection on Group ‘C’ posts was being done under the direct
supervision of the State Government but Head of Departments had to devote much
time for the above selections which is severely affecting the Government works as
well as the works of public interest. Due to all these reasons, it is quite necessary
to establish an independent Subordinate Services Selection Commission consisting
of the Chairperson and Members similar to that of the Uttar Pradesh Public Service
Commission for timely selection on certain Group ‘C’ posts. It has therefore, been
decided to make a law to provide for the establishment of a Commission by the
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name of the Uttar Pradesh Subordinate Services Selection Commission for the
selection on certain Group ‘C’ posts in the State…”
12. This being an Act passed by the legislature, shall certainly override all the
prevailing rules in conflict. The powers and duties of the Commission are defined
with clarity under the 2014 Act. Suffice it is to state that the entire process of
recruitment to the Group ‘C’ posts is entrusted to the Commission, as could be
seen under Section 15 which enables the conduct of examinations, holding
interviews leading to the selection of candidates.
D. The Uttar Pradesh Direct Recruitment to Group ‘C’ Posts (Mode and
Procedure) Rules, 2015
13. The 2015 Rules are brought into the statute with effect from 11.05.2015. Rule (1)
speaks of the application to Group ‘C’ posts, while Rule (2) highlights the fact
that it will have an overriding effect, notwithstanding anything to the contrary
contained in any other service rules made under the proviso to Article 309 of the
Constitution of India. Under Rule 8(2), it is made clear that all Group ‘C’ posts
would come under its purview, except those specifically excluded by the
Government by way of a notification, and laid down the procedure of direct
recruitment by way of a written examination followed by an interview. Thereafter,
the Commission shall prepare a list of candidates on the basis of merit and forward
it to the appointing authority. Thus, these rules do not provide for any waiting list.
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The only list required to be sent is based upon merit, subject to the rule of
reservation.
ARGUMENTS OF THE PARTIES:
Arguments of the Appellant:
14. In view of the existence of a specific non-obstante clause, the 2015 Rules, being
the later one, and despite being a general law would take precedence over the 1978
Rules, being the special service rules. Since the two sets of rules are completely
inconsistent, in light of the fact that the authority who is to conduct the recruitment
process is different in the two rules, so also the process of recruitment, as such,
there is no possibility of any harmonious reading of the two sets of rules.
15. The amendment made to the special rules in the year 2016 would not change the
position as it was done by way of abundant caution, being clarificatory in nature.
There is no right vested with the private respondents and the impleading
applicants to the post, and the waiting-list cannot be seen as a perennial source of
recruitment. Having participated in the process of recruitment, they are estopped,
having acquiesced themselves. Even otherwise, in light of the 1999 GO, the
Respondents or the impleadment applicants will not be entitled to appointment.
16. It is the sole prerogative of the Appellant and the Commission to prescribe any
mode of selection. Despite the 2015 Rules having been brought to its notice, the
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High Court failed to duly consider the same. The impleadment applicants are
fence-sitters and as such are even otherwise not entitled to any relief. Seeking to
strengthen the aforesaid arguments, reliance has been made on the decisions of
this Court in the following cases:
Ajoy Kumar Banerjee v. Union of India (1984) 3 SCC 127,
Mohan Karan v. State of U.P. (1998) 3 SCC 444,
Surinder Singh v. State of Punjab (1997) 8 SCC 488,
Anupal Singh v. State of U.P. (2020) 2 SCC 173,
Union of India v. G.R. Prabhavalkar (1973) 4 SCC 183.
S.S. Balu v. State of Kerala (2009) 2 SCC 479
Arguments of the Respondents
17. The 1978 Rules deal with a specified post, and therefore, the 2015 Rules, despite
being a subsequent one will have to yield to it, the former being the special law
governing the field. Rule 15(4) of the 1978 Rules clearly provides for a waiting
list. A general rule will not have precedence over a special one, notwithstanding
a non-obstante clause, unless there is a clear inconsistency between the two, in
which case the two sets of rules will have to be harmoniously construed.
18. The 1978 Rules, governed the field until the 2016 amendment, which only came
into force after the interviews in the impugned selection process, and as such, the
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rules of the game cannot be changed once the game has started. Even otherwise,
there is a vested right of appointment against an advertised post which has
remained unfilled due to non-joining of the more meritorious candidate.
19. It is not a case of mere operation of the waiting list to fill up the vacancies created
due to the failure of the selected candidate to join. The arguments aforesaid are
sought to be strengthened by the decisions of this Court in the following cases:
Maya Mathew v. State of Kerala (2010) 4 SCC 498,
V. K. Girija v. Reshma Parayil (2019) 2 SCC 347,
Chief Information Commissioner v. High Court of Gujarat (2020) 4
SCC 702.
State of U.P. & Anr. v. Rajiv Kumar Srivastava & Anr. SLP (C) CC
No. 10604 of 2013 dated 26.07.2013
K. Manjusree v. State of A.P. & Anr. (2008) 3 SCC 512
Dinesh Kumar Kashyap & Ors. v. South East Central Railway &
Others (2019) 12 SCC 798
DISCUSSION:
20. We have already placed the relevant rules and considered their import. Clause
15(1) of the 1978 Rules deals with a Selection Committee, while we are
concerned with the recruitment made by the Selection Commission statutorily
created by an enactment, the 2014 Act. Under the 1978 Rules, no written
10
examination was contemplated as against a mere interview. This was consciously
given a go-by, to the knowledge of the candidates who willingly participated in
the selection process by taking the written examination, and thereafter, the
interview. This process was adopted in tune with the 2015 Rules, and in terms of
the powers conferred to the Commission under the 2014 Act. Therefore, the 1978
Rules are put into cold storage qua a selection even at the time of conducting the
written examination.
21. A candidate who has participated in the selection process adopted under the 2015
Rules is estopped and has acquiesced himself from questioning it thereafter, as
held by this Court in the case of Anupal Singh (supra):
“55. Having participated in the interview, the private respondents cannot
challenge the Office Memorandum dated 12-10-2014 and the selection. On
behalf of the appellants, it was contended that after the revised Notification dated
12-10-2014, the private respondents participated in the interview without protest
and only after the result was announced and finding that they were not selected,
the private respondents chose to challenge the revised Notification dated 12-10-
2014 and the private respondents are estopped from challenging the selection
process. It is a settled law that a person having consciously participated in the
interview cannot turn around and challenge the selection process.
56. Observing that the result of the interview cannot be challenged by a
candidate who has participated in the interview and has taken the chance to get
selected at the said interview and ultimately, finds himself to be unsuccessful,
in Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712], it was
held as under : (SCC p. 493, para 9)
“9. … The petitioners also appeared at the oral interview conducted
by the Members concerned of the Commission who interviewed the
petitioners as well as the contesting respondents concerned. Thus the
petitioners took a chance to get themselves selected at the said oral
interview. Only because they did not find themselves to have
emerged successful as a result of their combined performance both
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at written test and oral interview, they have filed this petition. It is
now well settled that if a candidate takes a calculated chance and
appears at the interview, then, only because the result of the
interview is not palatable to him, he cannot turn round and
subsequently contend that the process of interview was unfair or the
Selection Committee was not properly constituted.”
57. In K.H. Siraj v. High Court of Kerala [(2006) 6 SCC 395 : 2006 SCC (L&S)
1345], it was held as under : (SCC p. 426, para 73)
“73. The appellant-petitioners having participated in the interview in
this background, it is not open to the appellant-petitioners to turn
round thereafter when they failed at the interview and contend that
the provision of a minimum mark for the interview was not proper.”
58. In Union of India v. S. Vinodh Kumar [(2007) 8 SCC 100 : (2007) 2 SCC
(L&S) 792], it was held as under : (SCC p. 107, para 19)
“19. In Chandra Prakash Tiwari v. Shakuntala Shukla [(2002) 6
SCC 127 : 2002 SCC (L&S) 830] ….
xxx xxx xxx
It was further observed : (SCC p. 149, para 34)
‘34. There is thus no doubt that while question of any estoppel by
conduct would not arise in the contextual facts but the law seem to
be well settled that in the event a candidate appears at the interview
and participates therein, only because the result of the interview is
not “palatable” to him, he cannot turn round and subsequently
contend that the process of interview was unfair or there was some
lacuna in the process.”
59. Same principle was reiterated in Sadananda Halo v. Momtaz Ali
Sheikh [(2008) 4 SCC 619 : (2008) 2 SCC (L&S) 9] wherein, it was held as under
: (SCC pp. 645-46, para 59)
“59. It is also a settled position that the unsuccessful candidates
cannot turn back and assail the selection process. There are of course
the exceptions carved out by this Court to this general rule. This
position was reiterated by this Court in its latest judgment in Union
of India v. S. Vinodh Kumar [(2007) 8 SCC 100 : (2007) 2 SCC
(L&S) 792] …. The Court also referred to the judgment in Om
Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 :
1986 SCC (L&S) 644], where it has been held specifically that when
a candidate appears in the examination without protest and
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subsequently is found to be not successful in the examination, the
question of entertaining the petition challenging such examination
would not arise.”
22. In the case at hand, the un-selected candidates want to press into service a part of
the 1978 Rules while accepting the 2015 Rules. Such a selective adoption is not
permissible under law, as no party can be allowed to approbate or reprobate, as
held by this Court in Union of India v. N Murugesan (2022) 2 SCC 25:
“Approbate and reprobate
26. These phrases are borrowed from the Scots law. They would only mean that
no party can be allowed to accept and reject the same thing, and thus one cannot
blow hot and cold. The principle behind the doctrine of election is inbuilt in the
concept of approbate and reprobate. Once again, it is a principle of equity coming
under the contours of common law. Therefore, he who knows that if he objects
to an instrument, he will not get the benefit he wants cannot be allowed to do so
while enjoying the fruits. One cannot take advantage of one part while rejecting
the rest. A person cannot be allowed to have the benefit of an instrument while
questioning the same. Such a party either has to affirm or disaffirm the
transaction. This principle has to be applied with more vigour as a common law
principle, if such a party actually enjoys the one part fully and on near
completion of the said enjoyment, thereafter questions the other part. An element
of fair play is inbuilt in this principle. It is also a species of estoppel dealing with
the conduct of a party. We have already dealt with the provisions of the Contract
Act concerning the conduct of a party, and his presumption of knowledge while
confirming an offer through his acceptance unconditionally.
xxx xxx xxx
27.2.State of Punjab v. Dhanjit Singh Sandhu [(2014) 15 SCC 144] : (SCC pp.
153-54, paras 22-23 & 25-26)
“22. The doctrine of “approbate and reprobate” is only a species of
estoppel, it implies only to the conduct of parties. As in the case of
estoppel it cannot operate against the provisions of a statute.
(Vide CIT v. MR. P. Firm Muar [AIR 1965 SC 1216].)
23. It is settled proposition of law that once an order has been passed,
it is complied with, accepted by the other party and derived the
benefit out of it, he cannot challenge it on any ground.
(Vide Maharashtra SRTC v. Balwant Regular Motor Service [AIR
13
1969 SC 329].) In R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC 683]
this Court has observed as under : (R.N. Gosain case [(1992) 4 SCC
683], SCC pp. 687-88, para 10)
‘10. Law does not permit a person to both approbate and
reprobate. This principle is based on the doctrine of election
which postulates that no party can accept and reject the
same instrument and that ‘a person cannot say at one time
that a transaction is valid and thereby obtain some
advantage, to which he could only be entitled on the footing
that it is valid, and then turn round and say it is void for the
purpose of securing some other advantage’.’
xxx xxx xxx
25. The Supreme Court in Rajasthan State Industrial Development
& Investment Corpn. v. Diamond & Gem Development Corpn.
Ltd. [(2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153], made an
observation that a party cannot be permitted to “blow hot and cold”,
“fast and loose” or “approbate and reprobate”. Where one knowingly
accepts the benefits of a contract or conveyance or an order, is
estopped to deny the validity or binding effect on him of such
contract or conveyance or order. This rule is applied to do equity,
however, it must not be applied in a manner as to violate the
principles of right and good conscience.
26. It is evident that the doctrine of election is based on the rule of
estoppel, the principle that one cannot approbate and reprobate is
inherent in it. The doctrine of estoppel by election is one among the
species of estoppel in pais (or equitable estoppel), which is a rule of
equity. By this law, a person may be precluded, by way of his
actions, or conduct, or silence when he has to speak, from asserting
a right which he would have otherwise had.”
23. The aforesaid principle of law applies to the present case. 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.
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24. We have considered the aforesaid submissions to appreciate the arguments made.
Even under the 1978 Rules, we do not find the existence of any waiting-list in
operation to be filled up at a later point of time, when a certain candidate does not
join. 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.
25. 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.
26. Now we shall come 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. We have no difficulty in
15
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. As we have already held 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. On this aspect, we wish to quote with profit the decision of this Court in
the case of Ajoy Kumar Banerjee (supra),
“38….As mentioned hereinbefore if the scheme was held to be valid, then the
question what is the general law and what is the special law and which law in
case of conflict would prevail would have arisen and that would have
necessitated the application of the principle “Generalia specialibus non
derogant”. The general rule to be followed in case of conflict between two
statutes is that the later abrogates the earlier one. In other words, a prior special
law would yield to a later general law, if either of the two following conditions
is satisfied:
(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the earlier enactment.
If either of these two conditions is fulfilled, the later law, even though general,
would prevail.
39. From the text and the decisions, four tests are deducible and these are: (i)
The Legislature has the undoubted right to alter a law already promulgated
through subsequent legislation, (ii) A special law may be altered, abrogated or
repealed by a later general law by an express provisions, (iii) A later general law
will override a prior special law if the two are so repugnant to each other that
they cannot co-exist even though no express provision in that behalf is found in
the general law, and (iv) It is only in the absence of a provision to the contrary
and of a clear inconsistency that a special law will remain wholly unaffected by
a later general law. See in this connection, Maxwell on the Interpretation of
Statutes, Twelfth Edition, pages 196-198.”
27. 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, considering the fact that the 2016 amendment
16
was only clarificatory in nature. We may hasten to add that both the Rules were made
in the exercise of power conferred under Article 309 of the Constitution of India.
28. Much reliance has been made on the Government Order passed on 15.11.1999. The
said order is very clear on two counts. It speaks of the role being played by the Public
Service Commission, and dispensing with the waiting-list except in case of selection
to a single post. What is important to be noted is the selection and that too for a
single post. It would only mean that selection of an individual to a post, which cannot
be interpreted to mean a particular category of post or a single cadre post, as
contended by the counsel for the Respondents. The object is very clear that the
exercise done in selecting a suitable candidate shall not go waste if that person is not
actually selected for any reason, in which case the next in line would get in.
Otherwise, the entire process would go to waste, making the recruiting agency to
redo it all over for a single post.
29. The learned counsel appearing for the respondents made a specific reference to the
decision rendered in the case of Rajiv Kumar Srivastava (supra) to press home the
contention that, when a post is not filled due to non-joining of a candidate, another
one waiting in the wings merits consideration, as a vested right inures in his benefit.
30. The aforesaid decision, in our considered view, may not have any application to the
case on hand. The effect of the relevant rules is not considered therein, as the select
list shuts the door to everyone other than the selected candidates. The
