THE STATE OF UTTAR PRADESH versus KARUNESH KUMAR & ORS

Citation: [2022] 18 S.C.R. 1174 · Decided: 12-12-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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   [2022] 18 S.C.R. 1174
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THE STATE OF UTTAR PRADESH
v.
KARUNESH KUMAR & ORS.
(Civil Appeal Nos. 8822-8823 of 2022)
DECEMBER 12, 2022
[M. R. SHAH AND M.M SUNDRESH, JJ.]
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
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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 waiting-
list 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
THE STATE OF UTTAR PRADESH v. KARUNESH KUMAR
& ORS.
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SUPREME COURT REPORTS
[2022] 18 S.C.R.
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