Unsuccessful Candidates Do Not Have Vested Right To Insist Upon Their Consideration In Absence Of Any Such Rule- SC
The Supreme Court recently held that in absence of any rule requiring to prepare a waiting list of candidates going through the selection process, the unsuccessful candidate had no vested right to insist upon their consideration.
The Bench of Justice M.R. Shah and Justice MM Sundresh held that under the 2015 Rules the merit list has to be sent by the Commission to the appointing authority and that in case of non-joining, the vacancies were to be carried forward to the next process of selection.
"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 Court held.
In this case, the appeal has been preferred against the order of Allahabad High Court whereby the Order of Single Judge was overturned directing the appointing authority to consider the candidates who were not part of the list forwarded by the Uttar Pradesh Subordinate Services Selection Commission, to be considered for the vacancies that arose 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).
An Advertisement was published with regard to the filling up of 3587 Group 'C' Posts of Gram Panchayat Adhikari and the process was completed in accordance with the 2015 Rules and appointment letters were issued. The process for the next selection commenced by taking note of the carry-forward vacancies.
Advocate Ruchira Goel appeared on behalf of the appellant and submitted that the Uttar Pradesh Direct Recruitment to Group 'C' Posts (Mode and Procedure) Rules, 2015 ('the 2015 Rules' in short) would be applicable as it being the later one and being the general law. And, that there was no possibility of any harmonious reading of the two sets of rules. Since, the two sets are completely inconsistent as the process of recruitment and the authority conducting the recruitment process were different. It was also submitted that the waiting-list cannot be seen as a perennial source of recruitment.
Senior Advocate V.K. Shukla appeared on behalf of the respondent and submitted that Rule 15(4) of the Uttar Pradesh Gram Panchayat Adhikari Service Rules, 1978 ('the 1978 Rules' in Short) clearly provided for the waiting list and the Rules 1978 being a special law will govern the recruitment process.
The Apex Court observed that in the selection process as per the 1978 Rules, candidates were selected only on the basis of an interview whereas as per the 2015 Rules, and in terms of the powers conferred to the Commission under the Uttar Pradesh Subordinate Services Selection Commission Act, 2014 ('the 2014 Act' in short), the candidates had to give a written examination followed by an interview.
The Apex Court relied upon its decision in the case of Union of India v. N Murugesan (2022) 2 SCC 25 and observed that "the un-selected candidates wanted 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".
The Apex Court further observed that it was settled law that there was 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 and that under the 1978 Rules, there was no existence of waiting-list in operation to fill up a post at later point of time, when a certain candidate does not join. Whereas the list mentioned in Rule 15(4) of the 1978 Rules is concerned, it was only to facilitate the appointing authority to fill up the vacancies. Thus, if the vacancies were filled up, there was no option left for the other candidates.
Further, with regard to the question of the two Rules being repugnant, the Court relied upon its decision in the case of Ajoy Kumar Banerjee v. Union of India (1984) 3 SCC 127 and held that the two sets of rules were inconsistent with each other and it was clear that the later rules, even though general in nature, would govern the field. And that the amending of 1978 Rules subsequently in 2016 would not mean that Rule 15 would continue to exist in the Statute book.
The Court further observed that the Government Order, 1999 was very clear with respect to the need of waiting-list in case of selection to a single post and said that "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."
Accordingly, the appeal was allowed and orders of the Allahabad High Court were set aside.
Cause Title- The State of Uttar Pradesh v. Karunesh Kumar & Ors.