The division judge bench of Justice M.R. Shah and Justice M.M. Sundresh of the apex court in the case of The State of Uttar Pradesh Vs Karunesh Kumar & Ors held that it is settled law that there is 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.
BRIEF FACTS
The factual matrix of the case is that the advertisement was made for the purpose of filing up the posts of Gram Panchayat Adhikari. The selection process was completed in accordance with the 2015 Rules, by duly conducting a written examination followed by an interview. 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 in time, the impugned orders were passed by the Division Bench of the High Court.
The learned counsel appearing on behalf of the appellant has contended that the 2015 rules and 1978 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. It was further submitted that 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. The learned counsel appearing on behalf of the appellant has relied upon the judgements titled 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 and S.S. Balu v. State of Kerala (2009) 2 SCC 479.
The learned counsel appearing on behalf of the respondents has contended that 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. It was further contended that there is a vested right of appointment against an advertised post which has remained unfilled due to non-joining of the more meritorious candidate.
The learned counsel appearing on behalf of the respondent has relied upon the judgements titled 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, and Dinesh Kumar Kashyap & Ors. v. South East Central Railway & Others (2019) 12 SCC 798.
COURT’S OBSERVATION
The hon’ble apex court held that it is settled law that there is 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. Furthermore, a change was introduced for the first time after the entire process was over, based on the decision made by the Full Court qua the cut off. Secondly, it is not as if the private respondents were nonsuited from participating in the recruitment process.
The principle governing changing the rules of game would not have any application when the change is with respect to selection process but not the qualification or eligibility. In other words, after the advertisement is made followed by an application by a candidate with further progress, a rule cannot be brought in, disqualifying him to participate in the selection process.
It is only in such cases, the principle aforesaid will have an application or else it will hamper the power of the employer to recruit a person suitable for a job.
CASE NAME- The State of Uttar Pradesh Vs Karunesh Kumar & Ors
CITATION- CIVIL APPEAL NOS. 8822-8823 OF 2022
[Arising out of SLP (C) Nos. 10386-10387 of 2020]
CORUM- Justice M.R. Shah and Justice M.M. Sundresh
DATE- 12.12.22
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