THE STATE OF UTTAR PRADESH versus KARUNESH KUMAR & ORS

[2022] 18 S.C.R.

THE STATE OF UTTAR PRADESH

KARUNESH KUMAR & ORS.

(Civil Appeal Nos. 8822-8823 of 2022)

BDECEMBER 12, 2022

[M. R. SHAH AND M.M SUNDRESH, JJ.]

Service Law – Uttar Pradesh Subordinate Services SelectionCommission Act, 2014 – s.15 – Uttar Pradesh Direct Recruitment toGroup ‘C’ Posts (Mode and Procedure) Rules, 2015 – rr. 1, 2, 8(2)C– Uttar Pradesh Gram Panchayat Adhikari Service Rules, 1978 –rr. 15, 15(1), 15(4), 16(5) – Carry-forward vacancies – SelectionProcess – An advertisement for filling up of Group ‘C’ Posts ofGram Panchayat Adhikari was made – In 2015, the selection processwas completed in accordance with the Uttar Pradesh DirectDRecruitment to Group ‘C’ Posts (Mode and Procedure) Rules, 2015(Rules 2015) as per the Uttar Pradesh Subordinate ServicesSelection Commission Act, 2014 (Act 2014) – Result was declaredin 2016 and appointment letters were served in 2017 – Meanwhilein 2016, Uttar Pradesh Gram Panchayat Adhikari Service Rules,1978 (Rules 1978) were amended – The process for the nextEselection was commenced by taking note of the carry-forwardvacancies – The respondents and impleading applicants those whogone through the selection process but have not find their place inthe list sent by the Uttar Pradesh Subordinate Services SelectionCommission (UPSSC) to appointing authority filed Writ PetitionFwhich was dismissed by Single Judge – Division Bench overturnedthe Single Judge judgment interpreting Rule 15 of 1978 Rules anddirected the appointing authority to consider the candidates waitingin the queue based upon their performance for the vacancies thatarose due to the failure of the selected candidate to join – ReviewPetition was filed on the ground that 1978 rule is not applicableGinstead 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 theirconsideration, in the absence of any such rule requiring for the preparationof waiting-list – Un-selected candidates wanted to press into service aHpart of the 1978 Rules while accepting the 2015 Rules – Such

selective adoption is not permissible under law, as no party can beallowed to approbate or reprobate – Merely because the Appellantsought to amend the 1978 Rules subsequently in 2016, it cannot bepresumed that the 1978 Rules particularly with respect to Rule 15continue to exist in the statute book – Judgment of Single Judge ofthe High Court restored.

Allowing the appeals, the Court

HELD: 1.It is not open to the candidate to contend to thecontrary so that he can have the best of both sets of rules. Notonly is there difference in the mode of selection, but also in theconstitution of recruiting authority as well. It is pertinent to note,that under the 2015 Rules, there is no such procedure forpreparing 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 later point of time, when acertain candidate does not join was not found. Such list hasbeen provided under Rule 15(4) of the 1978 Rules only to facilitatethe appointing authority to fill up the vacancies. Thus, after thevacancies are filled up, the door for the other candidates getsclosed. [Para 24][1187-H; 1188-A]

3. The same is the position under the 2015 Rules by whichthe Commission is required to send the merit list alone to theappointing 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. Anemployer shall always have adequate discretion with an elementof flexibility in selecting an employee. Interference can only bemade when selection is arbitrary or contrary to law, which wedo not find to be the case in the present matter. The approach ofthe High Court is like visually impaired person looking for ablack cat in dark room when the cat itself is not there. [Para25][1188-B-C]

4. Now coming to the question of repugnancy between thetwo Rules, namely, the 1978 Rules, being special Rule, and thegeneral Rule introduced in the year 2015. The 1978 Rules do

Anot exist in the statute once the 2015 Rules came into being. Bythe introduction of the 2014 Act, the legislature in its wisdomassigned the role of filling up the Class ‘C’ posts to theCommission. This Court has no difficulty in appreciating the legalcontentions raised by the Respondents, however, the decisionsrendered do not have any application, considering theBinconsistency between the two sets of rules. The two sets of rulesto be inconsistent with each other, it is clear that the later rules,even though general in nature, will govern the field. [Para26][1188-D-F]

5. On perusal of the judgment rendered by the HighCCourt, as found earlier, the impugned decisions are made withoutconsidering the appropriate provisions despite an endeavourbeing made drawing its attention to the same. The High Court inour considered view did not take note of the grounds raised inthe Review Petition. In proceeding initiated under Article 226of the Constitution of India, the scope of review has to be lookedDat differently, facilitating an enlarged view. The scope of Rule 15and the non-availability of any provision for waiting list in the2015 Rules is already discussed. [Para 33][1191-G-H; 1192-A-

6. Accordingly, the appeal stands allowed and the impugnedEjudgments dated 09.08.2018 and 30.10.2019 are set aside andconsequently the order passed by the Single Judge standsrestored. [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) 8FSCC 488 : [1997] 3 Suppl. SCR 538; Union of India v.G.R. Prabhavalkar (1973) 4 SCC 183 : [1973] 3 SCR714; 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 SCRG1036; Chief Information Commissioner v. High Courtof 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. NMurugesan (2022) 2 SCC 25; Vallampati Sathish Babuv. State of A.P. (Civil Appeal No. 2473 of 2022); AjoyH

THE STATE OF UTTAR PRADESH v. KARUNESH KUMAR& 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 SCR1025; Rajiv Kumar Srivastava & Anr. SLP (C) CC No.10604 of 2013 –referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.8822-8823 of 2022.

From the Judgment and Order dated 09.08.2018 of the High Courtof Judicature at Allahabad in Special Appeal Defective No.163/2018(Special Appeal No.911/2018) and Order dated 30.10.2019 in Civil Misc.Review Application No. Nil of 2018 in Special Appeal (D) No.163/2018(Special Appeal No.911/2018).

Ms. Ruchira Goel, Goutham Shivshankar, Adit Jayeshbhai Shah,Advs. for the Appellant.

V. K. Shukla, S. R. Singh, Sr. Advs., Dinesh K. Garg, AbhishekGarg, Dhananjay Garg, Ishaan Tiwari, Rishikant, Kamlesh KumarMaurya, Ms. Leelawati Suman, S. Kumar, Vipin Kumar Jai, PradeepKumar Yadav, Vishal Thakre, Tota Ram, Sanjeev Malhotra, M. R.Shamshad, Arijit Sarkar, Ms. Nabeela Jamil, Raunak Parekh, P. V. Singh,Dr. Vinod Kumar Tewari, Jetendra Singh, Vijendra Kumar Kaushik, Ms.Kalpana, Ms. Priyanka Singh, Varun Punia, Shashank Singh, Manoj

AKumar, Ms. Nazish Fatima, S. K. Shukla, Manoj Kr. Dwedi, Ms. SavitaDevi, Ujjaval Kumar, Prashant Shukla, Suyash Srivastava, Parvez Alam,Satyajeet Kumar, Neeraj Aarora, Ms. Chandan Ramamurthi, KamleshKumar Maurya, Kaushal Yadav, Nandlal Kumar Mishra, VivekanandRana, Shaf, Santosh Kumar, Ms. Yashoda Katiyar, Ms. Apeksha Rai,Ms. Akansha Rai, Ms. Surajita Pattaniak, Buddha Deo Prasad, DharmBPal Saini, Sushant Kumar Yadav, Ajay Yadav, Jaidev Yadav, GauravLomes, Ankur Yadav, Sadashiv, Rahul Tomar, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. M. SUNDRESH, J.

C1. The decision of the Division Bench of the High Court ofJudicature at Allahabad in allowing the writ petition filed by the privateRespondents, setting aside the order passed by the learned Single Judgeis assailed before us. Candidates who waited in the wings, observing thelegal journey, filed applications for impleadment seeking extended benefitof the impugned Judgment and Order.D2. The present appeals are filed by the State of Uttar Pradeshinter alia contending that the candidates who are not part of the listforwarded by the Uttar Pradesh Subordinate Services SelectionCommission (hereinafter referred to as ‘the Commission’) were alsodirected to be considered in the vacancies arisingpursuant to the selectedEcandidates approved by the appointing authority, not taking up the jobsoffered to the post of Gram Panchayat Adhikari, Single Cadre, Group(C). The learned Single Judge dismissed the Writ Petitionfiledby theprivate Respondents, which was overturned by the Division Bench onthe premise that Rule 15 of the Uttar Pradesh Gram Panchayat AdhikariService Rules, 1978 (hereinafter referred to as “1978 Rules”),if givenFdue interpretation, would facilitate consideration of persons waiting inthe queue based upon their performance. An application for review wasfiled by the appellant inter alia stating that the relevant rule to be appliedis the Uttar Pradesh Direct Recruitment to Group ‘C’Posts (Mode andProcedure) Rules, 2015 (hereinafter referred to as “2015 Rules”). TheGsaid application was dismissed without taking note of the aforesaidcontentions. The State seeks to assail both the aforesaid orders in thepresent proceedings.

3. Heard Ms. Ruchira Goel, learned counsel for the Appellantand Mr. V.K. Shukla, learned senior counsel for the Respondent Nos. 1to 3 and Mr. M.R. Shamshad for the Respondent No. 4.H

ON FACTS:

4. An advertisement was made for the purpose of filling up of3587 Group ‘C’ Posts of Gram Panchayat Adhikari on 22.06.2015. Theselection process was completed in accordance with the 2015 Rules, byduly conducting written examination followed by an interview. By wayof abundant caution, though not necessitated, the 1978 Rules were alsoamended on 22.11.2016. The final result was declared on 24.12.2016and appointment letters were issued during the months of April and May,2017. During the pendency of the writ petition, the process for the nextselection was commenced by taking note of the carry-forward vacancies.At that point of time, the impugned orders were passed by the DivisionBench of the High Court of Allahabad.

5. The private respondents and the impleading applicants willinglytook part in the selection process. Obviously, they were not disqualifiedbut along with others made to go through the recruitment process ofwritten examination and the interview. It is to their misfortune that theydid not find place in the list sent by the Commission to the appointingauthority. Though, the entire process was done in tune with the 2015Rules and in exercise of the power conferred under the Uttar PradeshSubordinate Services Selection Commission Act, 2014(hereinafterreferred to as the “2014 Act”), the reliance was made on the 1978 Ruleswhich 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 recruitmentprocess, to have correct understanding of the issue involved.

A. Uttar Pradesh Gram Panchayat Adhikari Service Rules,

7. These rules exclusively dealt with the appointment to the postof Gram Panchayat Adhikari, introduced by the powers conferred underthe proviso to Article 309 of the Constitution of India. It has undergoneamendment in the year 1989. We are concerned with two amendmentsby which the earlier Group ‘D’ posts were converted into Group ‘C’posts, with the change in the constitution of the committee. The firstamendment is to the rule providing for the aforesaid change and thesecond one is with respect to Rule 15(1).

A8. Rule 15(1) changes the composition of the Selection Committeewhile the appointing authority remains the same. Rule 15(4), which wasleft untouched by the subsequent amendment, enabled the SelectionCommittee to prepare the list of candidates in order of merit as disclosedby the marks obtained in the interview. It further provides for the list tobe enlarged by not more than 25% of the number of total vacancies.B

9. Under the aforesaid rules, there was no written examinationcontemplated as against mere interview by the Selection Committee.No waiting list as such has been provided expressly, though the list shallcontain larger number of names in comparison to the vacancies. Weshall now place on record the aforesaid provision to have betterCunderstanding.

“Rule 15

(4) The Selection Committee shall prepare list of candidates inorder to merit as disclosed by the marks obtained in the interview.DThe number of the names in the list shall be larger (but no largerby 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 todispense with any concept of waiting list except in case of selection toEa single post, meaning thereby that if selected candidate to singleparticular post is not filled up by reason of the candidate not joining, thenext in line would get re-look on the premise that the entire exercisedone shall not go down the drain. Therefore, the object is rather clear.Consequently, the said order hands over the selection and recruitmentFprocess to the Public Service Commission to be applied to all the postsspanning over the State. It was also passed in supersession of all theearlier orders.

C. Uttar Pradesh Subordinate Services SelectionCommission Act, 2014:

G11. By the 2014 Act, the need for an independent specialized agencyfor the timely selection of Group (C) posts was felt, as could be seenfrom the Statement of Objects and Reasons furnished hereunder:

“…In near past, selection on Group ‘C’ posts was being doneunder the direct supervision of the State Government but Head ofHDepartments had to devote much time for the above selections

which is severely affecting the Government works as well as theworks of public interest. Due to all these reasons, it is quitenecessary to establish an independent Subordinate ServicesSelection Commission consisting of the Chairperson and Memberssimilar to that of the Uttar Pradesh Public Service Commissionfor timely selection on certain Group ‘C’ posts. It has therefore,been decided to make law to provide for the establishment of aCommission by the name of the Uttar Pradesh SubordinateServices Selection Commission for the selection on certain Group‘C’ posts in the State…”

12. This being an Act passed by the legislature, shall certainlyoverride all the prevailing rules in conflict. The powers and duties of theCommission are defined with clarity under the 2014 Act.Suffice it is tostate that the entire process of recruitment to the Group ‘C’ posts isentrusted to the Commission, as could be seen under Section 15 whichenables the conduct of examinations, holding interviews leading to theselection 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 from11.05.2015. Rule (1) speaks of the application to Group ‘C’ posts, whileRule (2) highlights the fact that it will have an overriding effect,notwithstanding anything to the contrary contained in any other servicerules 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 comeunder its purview, except those specifically excluded by the Governmentby way of notification, and laid down the procedure of direct recruitmentby way of written examination followed by an interview. Thereafter,the Commission shall prepare list of candidates on the basis of meritand forward it to the appointing authority. Thus, these rules do not providefor any waiting list. 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 specific non-obstante clause, the2015 Rules, being the later one, and despite being general law wouldtake precedence over the 1978 Rules, being the special service rules.

ASince the two sets of rules are completely inconsistent, in light of thefact that the authority who is to conduct the recruitment process is differentin the two rules, so also the process of recruitment, as such, there is nopossibility of any harmonious reading of the two sets of rules.

15. The amendment made to the special rules in the year 2016Bwould not change the position as it was done by way of abundant caution,being clarificatory in nature. There is no right vested with the privaterespondents and the impleading applicants to the post, and the waiting-list cannot be seen as perennial source of recruitment. Havingparticipated in the process of recruitment, they are estopped, havingacquiesced themselves. Even otherwise, in light of the 1999 GO, theCRespondents or the impleadment applicants will not be entitled toappointment.

16. It is the sole prerogative of the Appellant and the Commissionto prescribe any mode of selection. Despite the 2015 Rules having beenbrought to its notice, theHigh Courtfailed to duly consider the same. TheDimpleadment applicants are fence-sitters and as such are even otherwisenot entitled to any relief. Seeking to strengthen the aforesaid arguments,reliance has been made on the decisions of this Court in the followingcases:

•Ajoy Kumar Banerjee v. Union of India (1984) 3 SCCE127,

•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 specified post, and therefore, theG2015 Rules, despite being subsequent one will have to yield to it, theformer being the special law governing the field.Rule 15(4) of the 1978Rules clearly provides for waiting list. general rule will not haveprecedence over special one, notwithstanding non-obstante clause,unless there is clear inconsistency between the two, in which case theHtwo 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 selectionprocess, and as such, the rules of the game cannot be changed once thegame has started. Even otherwise, there is vested right of appointmentagainst an advertised post which has remained unfilled due to non-joiningof the more meritorious candidate.

19. It is not case of mere operation of the waiting list to fill upthe vacancies created due to the failure of the selected candidate to join.The arguments aforesaid are sought to be strengthened by the decisionsof 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 ofGujarat (2020) 4 SCC 702.

•State of U.P. &Anr. v. Rajiv Kumar Srivastava&Anr.SLP (C) CC No. 10604 of 2013dated 26.07.2013

•K. Manjusree v. State of A.P. &Anr. (2008) 3 SCC512

•Dinesh Kumar Kashyap &Ors. v. South East CentralRailway & Others (2019) 12 SCC 798

DISCUSSION:

20. We have already placed the relevant rules and consideredtheir import. Clause 15(1) of the 1978 Rules deals with SelectionCommittee, while we are concerned with the recruitment made by theSelection Commission statutorily created by an enactment, the 2014 Act.Under the 1978 Rules, no written examination was contemplated asagainst mere interview. This was consciously given go-by, to theknowledge of the candidates who willingly participated in the selectionprocess by taking the written examination, and thereafter, the interview.This process was adopted in tune with the 2015 Rules, and in terms ofthe powers conferred to the Commission under the 2014 Act. Therefore,the 1978 Rules are put into cold storage qua selection even at the timeof conducting the written examination.

21. candidate who has participated in the selection processadopted under the 2015 Rules is estopped and has acquiesced himself

Afrom questioning it thereafter, as held by this Court in the case of AnupalSingh (supra):

“55.Having participated in the interview, the privaterespondents cannot challenge the Office Memorandum dated12-10-2014 and the selection. On behalf of the appellants, itwas contended that after the revised Notification dated 12-10-B2014, the private respondents participated in the interview withoutprotest and only after the result was announced and finding thatthey were not selected, the private respondents chose to challengethe revised Notification dated 12-10-2014 and the privaterespondents are estopped from challenging the selection process.CIt is settled law that person having consciously participated inthe interview cannot turn around and challenge the selectionprocess.

56. Observing that the result of the interview cannot be challengedby candidate who has participated in the interview and has takenDthe chance to get selected at the said interview and ultimately,finds himself to be unsuccessful, in Madan Lal v. State ofJ&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712], it was held asunder : (SCC p. 493, para 9)

“9. … The petitioners also appeared at the oral interviewconducted by the Members concerned of the Commission whoEinterviewed the petitioners as well as the contesting respondentsconcerned. Thus the petitioners took chance to get themselvesselected at the said oral interview. Only because they did notfind themselves to have emerged successful as result of theircombined performance both at written test and oral interview,Fthey have filed this petition. It is now well settled that if acandidate takes calculated chance and appears at theinterview, then, only because the result of the interview is notpalatable to him, he cannot turn round and subsequently contendthat the process of interview was unfair or the SelectionCommittee was not properly constituted.”G

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, para73)

“73. The appellant-petitioners having participated in theinterview in this background, it is not open to the appellant-

petitioners to turn round thereafter when they failed at theinterview and contend that the provision of minimum markfor 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 ChandraPrakash Tiwari v. ShakuntalaShukla [(2002) 6 SCC 127 : 2002 SCC (L&S) 830] ….

xxxxxx

It was further observed : (SCC p. 149, para 34)

‘34. There is thus no doubt that while question of any estoppelby conduct would not arise in the contextual facts but the lawseem to be well settled that in the event candidate appears atthe interview and participates therein, only because the resultof the interview is not “palatable” to him, he cannot turn roundand subsequently contend that the process of interview wasunfair or there was some lacuna in the process.”

59. Same principle was reiterated in Sadananda Halo v. MomtazAli 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 settled position that the unsuccessful candidatescannot turn back and assail the selection process. There areof course the exceptions carved out by this Court to this generalrule. This position was reiterated by this Court in its latestjudgment in Union of India v. S. Vinodh Kumar [(2007) 8SCC 100 : (2007) 2 SCC (L&S) 792] …. The Court alsoreferred to the judgment in Om Prakash Shukla v. AkhileshKumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644],where it has been held specifically that when candidateappears in the examination without protest and subsequently isfound to be not successful in the examination, the question ofentertaining the petition challenging such examination wouldnot arise.”

22. In the case at hand, the un-selected candidates want topressintoservice part of the 1978 Rules while accepting the 2015 Rules.Such selective adoption is not permissible under law, as no party can

Abe allowed to approbate or reprobate, as held by this Court in Union ofIndia v. N Murugesan (2022) 2 SCC 25:

“Approbate and reprobate

26. These phrases are borrowed from the Scots law. They wouldonly mean that no party can be allowed to accept and reject thesame thing, and thus one cannot blow hot and cold. The principlebehind the doctrine of election is inbuilt in the concept of approbateand reprobate. Once again, it is principle of equity coming underthe contours of common law. Therefore, he who knows that if heobjects to an instrument, he will not get the benefit he wants cannotbe allowed to do so while enjoying the fruits. One cannot takeadvantage of one part while rejecting the rest. person cannotbe allowed to have the benefit of an instrument while questioningthe same. Such party either has to affirm or disaffirm thetransaction. This principle has to be applied with more vigour as acommon law principle, if such party actually enjoys the one partfully and on near completion of the said enjoyment, thereafterquestions the other part. An element of fair play is inbuilt in thisprinciple. It is also species of estoppel dealing with the conductof party. We have already dealt with the provisions of theContract Act concerning the conduct of party, and hispresumption of knowledge while confirming an offer through hisacceptance unconditionally.

xxx

27.2.State of Punjab v. Dhanjit Singh Sandhu [(2014) 15 SCC144] : (SCC pp. 153-54, paras 22-23 & 25-26)

“22. The doctrine of “approbate and reprobate” is only speciesof estoppel, it implies only to the conduct of parties. As in thecase of estoppel it cannot operate against the provisions of astatute. (Vide CIT v. MR. P. Firm Muar [AIR 1965 SC 1216].)

23. It is settled proposition of law that once an order has beenpassed, it is complied with, accepted by the other party andderived the benefit out of it, he cannot challenge it on anyground. (Vide Maharashtra SRTC v. Balwant RegularMotor Service [AIR 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 person to both approbate andreprobate. This principle is based on the doctrine of electionwhich postulates that no party can accept and reject thesame instrument and that ‘a person cannot say at one timethat transaction is valid and thereby obtain someadvantage, to which he could only be entitled on the footingthat it is valid, and then turn round and say it is void for thepurpose of securing some other advantage’.’

xxx

25. The Supreme Court in Rajasthan State IndustrialDevelopment & Investment Corpn. v. Diamond & GemDevelopment Corpn. Ltd. [(2013) 5 SCC 470 : (2013) 3 SCC(Civ) 153], made an observation that party cannot be permittedto “blow hot and cold”, “fast and loose” or “approbate andreprobate”. Where one knowingly accepts the benefits of acontract or conveyance or an order, is estopped to deny the validityor binding effect on him of such contract or conveyance or order.This rule is applied to do equity, however, it must not be applied ina manner as to violate the principles of right and good conscience.

26. It is evident that the doctrine of election is based on the ruleof estoppel, the principle that one cannot approbate and reprobateis inherent in it. The doctrine of estoppel by election is one amongthe species of estoppel in pais (or equitable estoppel), which isa rule of equity. By this law, person may be precluded, by wayof his actions, or conduct, or silence when he has to speak, fromasserting right which he would have otherwise had.”

23. The aforesaid principle of law applies to the present case. It isnot open to the candidate to contend to the contrary so that he can havethe best of both sets of rules. Not only is there difference in the modeof selection, but also in the constitution of recruiting authority as well. Itis pertinent to note, that under the 2015 Rules, there is no such procedurefor preparing waiting-list, as the Respondentsseek to contend.

24. We have considered the aforesaid submissions to appreciatethe arguments made. Even under the 1978 Rules, we do not find theexistence of any waiting-list in operation to be filled up at later point of

Atime, when certain candidate does not join. Such list has been providedunder Rule 15(4) of the 1978 Rules only to facilitate the appointingauthority 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 theBCommission is required to send the merit list alone to the appointingauthority which it actually did and in case of non-joining, the vacanciesare carried forward to the next process of selection, as has been rightlydone by the authority in the present case. An employer shall alwayshave adequate discretion with an element of flexibility in selecting anemployee. Interference can only be made when selection is arbitraryCor contrary to law, which we do not find to bethe case in the presentmatter. The approach of the High Court is like visually impaired personlooking for black cat in dark room when the cat itself is not there.26. Now we shall come to the question of repugnancy betweenthe two Rules, namely, the 1978 Rules, being special Rule, and theDgeneral Rule introduced in the year 2015. The 1978 Rules do not exist inthe statute once the 2015 Rules came into being. By the introduction ofthe 2014 Act, the legislature in its wisdom assigned the role of filling upthe Class ‘C’ posts to the Commission.We have no difficulty inappreciating the legal contentions raised by the Respondents,however,Ethe decisions rendered do not have any application, considering theinconsistency between the two sets of rules. As we have already heldthe two sets of rules to be inconsistent with each other, it is clear that thelater rules, even though general in nature, will govern the field. On thisaspect, we wish to quote with profit the decision of this Court in the caseof Ajoy Kumar Banerjee (supra),F

“38….As mentioned hereinbefore if the scheme was held to bevalid, then the question what is the general law and what is thespecial law and which law in case of conflict would prevail wouldhave arisen and that would have necessitated the application ofthe principle ”Generalia specialibus non derogant”. TheGgeneral rule to be followed in case of conflict between two statutesis that the later abrogates the earlier one. In other words, priorspecial law would yield to later general law, if either of the twofollowing conditions is satisfied:

(i) The two are inconsistent with each other.

(ii) There is some express reference in the later to the earlierenactment.

If either of these two conditions is fulfilled, the later law, eventhough general, would prevail.

39. From the text and the decisions, four tests are deducible andthese are: (i) The Legislature has the undoubted right to alter alaw already promulgated through subsequent legislation, (ii) Aspecial law may be altered, abrogated or repealed by latergeneral law by an express provisions, (iii) later general law willoverride prior special law if the two are so repugnant to eachother that they cannot co-exist even though no express provisionin that behalf is found in the general law, and (iv) It is only in theabsence of provision to the contrary and of clear inconsistencythat special law will remain wholly unaffected by later generallaw. See in this connection, Maxwell on the Interpretation ofStatutes, Twelfth Edition, pages 196-198.”

27. Merely because the Appellant sought to amend the 1978 Rulessubsequently in 2016, it cannot be presumed that the 1978 Rulesparticularly with respect to Rule 15 continue to exist in the statute book,considering the fact that the 2016 amendment was only clarificatory innature. We may hasten to add that both the Rules were made intheexercise of power conferred under Article 309 of the Constitution ofIndia.

28. Much reliance has been made on the Government Order passedon 15.11.1999. The said order is very clear on two counts. It speaks ofthe role being played by the Public Service Commission, and dispensingwith the waiting-list except in case of selection to single post. What isimportant to be noted is the selection and that too for single post. Itwould only mean that selection of an individual to post, which cannotbe interpreted to mean particular category of post or single cadrepost, as contended by the counsel for the Respondents. The object isvery clear that the exercise done in selecting suitable candidate shallnot go waste if that person is not actually selected for any reason, inwhich case the next in line would get in. Otherwise, the entire processwould go to waste, making the recruiting agency to redo it all over for asingle post.

29. The learned counsel appearing for the respondents made aspecific reference to the decision rendered in the case of Rajiv KumarSrivastava(supra)to press home the contention that, when apost is notfilled due to non-joining of candidate, another one waiting in the wingsmerits consideration, as vested right inures in his benefit.

B30. The aforesaid decision,in our considered view, may not haveany application to the case on hand.The effect of the relevant rules isnot considered therein,as the select list shuts the door to everyone otherthan the selected candidates. The aforesaid decision was in the contextof the 1999 GO, however, as we have held that the 1978 Rules do notapply to the present recruitment, the aforesaid decision would not be ofCany service. Further, it issettled law that there is no vested right of theunsuccessful candidate to insist upon their consideration, in the absenceof any such rule requiring for the preparation of waiting-list. This Courtin the recent decision in Vallampati Sathish Babu v. State of A.P. (CivilAppeal No. 2473 of 2022) has held that:D

“7.4 In the present case, the final selection list of 33 candidateswas prepared. Thereafter all the selected candidates were calledfor counselling, but one of the candidates did not report forcounselling. The aforesaid event took place after the final selectionlist was prepared and published. As there was no requirement ofEpreparation of waiting list, the appellant claiming to be the nextin the merit cannot claim any appointment as his name neitherfigured in the list of the selected candidates nor in any waiting listas there was no provision at all for preparation of the waiting list.Sub-rule (5) of Rule 16 is very clear. Therefore, the post remainedunfilled due to one of the candidates in the final list did not appearFfor counselling and/or accepted the employment. Hence, that posthas to be carried forward for the next recruitment.

7.5 The appellant could have claimed the appointment to the postwhich remained unfilled provided there is provision for waitinglist as per the statutory provision. In absence of any specificprovision for waiting list and on the contrary, there being specificprovision that there shall not be any waiting list and that the postremaining unfilled on any ground shall have to be carried forwardfor the next recruitment. The appellant herein, thus, had no rightto claim any appointment to the post which remained unfilled.

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8.1 An identical question came to be considered by this Court inthe case of Suresh Prasad and Ors. (supra). In the said decision,it is specifically observed and held that even in case candidatesselected for appointment have not joined, in the absence of anystatutory rules to the contrary, the employer is not bound to offerthe unfilled vacancy to the candidates next below the saidcandidates in the merit list. It is also further held that in the absenceof any provision, the employer is not bound to prepare waitinglist in addition to the panel of selected candidates and to appointthe candidates from the waiting list in case the candidates fromthe panel do not join. The aforesaid decision of this Court hasbeen subsequently followed by the Andhra Pradesh High Court inthe case of Samiula Shareef and Ors. (supra)”

31. We do not wish to reiterate the situation when two Rules aresought to be pitted against each other,as we findno such repugnancythat has arisen. court of law is expected to reconcile the rules, andtherefore, not to foresee or presume conflicts, if any.

32. The respondents have also placed reliance on the decision ofthis Court in the case of K. Manjusree (supra). However, in ourconsidered view,the facts of the aforesaid decision are quite differentfrom the present case. change was introduced for the first time afterthe entire process was over, based on the decision made by the FullCourt qua the cut off. Secondly, it is not as if the private respondentswere non-suitedfrom participating in the recruitment process. Theprinciple governing changing the rules of game would not have anyapplication when the change is with respect to selection process but notthe qualification or eligibility. In other words, after the advertisement ismade followed by an application by candidate with further progress, arule cannot be brought in, disqualifying him to participate in the selectionprocess. It is only in such cases, the principle aforesaid will have anapplication or else it will hamper the power of the employer to recruit aperson suitable for job.

33. On perusal of the judgment rendered by the High Court, asfound earlier, the impugned decisions are made without considering theappropriate provisions despite an endeavour being made drawing itsattention to the same. The High Court in our considered view did not

Atake note of the grounds raised in the Review Petition. In proceedinginitiated under Article 226 of the Constitution of India, the scope of reviewhas to be looked at differently, facilitating an enlarged view.We havealready discussed the scope of Rule 15 and the non-availability of anyprovision for waiting list in the 2015 Rules.

B34. Accordingly, the appeal stands allowed and the impugnedjudgments dated 09.08.2018 and 30.10.2019 are set aside andconsequently the order passed by the learned Single Judge standsrestored. No costs.

CAnkit Gyan and Anurag Bhaskar(Assisted by : Bodhi Ramteke, LCRA)

Appeals allowed.