Holding

The Court held that the revised requisition and Office Memorandum were valid corrections of a wrongful vacancy calculation, did not alter the eligibility criteria or the rules of the game, and therefore the selection process stands; the unsuccessful candidates are estopped from challenging, horizontal reservation can be filled from vertical categories, and Article 142 cannot be used to compel appointment of the 906 candidates.

Summary

The Uttar Pradesh government revised the category‑wise vacancy numbers for the Technical Assistant Group‑C recruitment after discovering that diploma holders had been wrongly counted against the OBC quota. The revised requisition (20‑08‑2014) and the UPPSC Office Memorandum (12‑10‑2014) were used to conduct the written exam, interview and to publish the final select list on 21‑05‑2015. Unsuccessful candidates filed writ petitions challenging the revision as a change of the "rules of the game", alleging violation of the UP Reservation Act, 1994, the Agriculture Service Rules, 1993, and the upper‑limit of 50% reservation, and sought appointment of 906 candidates left out. The Supreme Court held that the revision merely corrected a wrongful calculation, did not alter eligibility criteria, and therefore did not change the rules of the game; the private respondents, having participated in the interview, are estopped from challenging the selection. The Court also upheld the filling of unfilled horizontal‑reservation posts by candidates from vertical categories, rejected the application of res judicata to the other writ petitions, and ruled that Article 142 cannot be invoked to compel appointment of the 906 candidates. The appeals were allowed, the High Court judgment set aside, and age‑relaxation was granted as a one‑time measure for future recruitment.

Issues considered

Whether the revised requisition dated 20‑08‑2014 and the Office Memorandum dated 12‑10‑2014 constitute a valid correction of a wrongful calculation of category‑wise vacancies.
Whether such revision amounts to changing the rules of the game after the commencement of the selection process.
Whether the unsuccessful candidates who participated in the interview are estopped from challenging the revised notification and the final select list.
Whether the filling of unfilled horizontal‑reservation vacancies by candidates from vertically reserved categories is permissible.
Whether the principle of res judicata applies to the other writ petitions not appealed before this Court.
Whether the Supreme Court can exercise power under Article 142 to direct appointment of the 906 candidates left out.
Whether the selected candidates acquire an indefeasible right to appointment.

Legislation cited

Constitution of Indias. Article 141, s. Article 142, s. Article 16(4)
Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994s. 3(1), s. 4, s. 5
Uttar Pradesh Subordinate Agriculture Services Rules, 1993s. Rule 15, s. Rule 6

Subjects

reservationservice lawselection processestoppelres judicatahorizontal reservationArticle 142UP Reservation Actvacancy calculationrecruitment authorityindefeasible right

Judgment

[2019] 12 S.C.R. 1071 1071

ANUPAL SINGH AND OTHERS A
v.
STATE OF U.P THROUGH PRINCIPAL SECRETARY,
PERSONNEL DEPARTMENT AND OTHERS
(Civil Appeal No.4815 of 2019)
B
SEPTEMBER 30, 2019
[R. BANUMATHI AND A.S. BOPANNA, JJ.]
Service Law: Selection process – Reservation policy – Post
of Technical Assistant – Appellants as well as private respondents
applied for and appeared in the written examination held in 2014 – C
As per U.P. Reservation Act, specific percentages of vacancies were
reserved for different categories – It was brought to notice of State
Government that there was wrongful calculation of category-wise
vacancies in the earlier requisition and, therefore, the earlier
requisition was required to be revised – State Government by order D
dated 20.08.2014, re-worked the vacancies for different
categories of persons and sent the revised requisition for the
vacancies for different categories to UP Public Service
Commission (UPPSC) after adjustment of diploma holders against
‘general category’ – Based on revised requisition, UPPSC declared
the result of written examination, wherein appellants as well as E
private respondents were declared successful – Thereafter, UPPSC
issued O.M. dated 12.10.2014 specifically mentioning the number
of vacancies to be filled up in various categories in
consonance with order dated 20.07.2014 – Successful candidates
appeared in interview on 27.10.2014 and finally result of select list F
candidates was declared on 21.05.2015 – Private respondents did
not qualify – Unsuccessful candidates filed writ petitions before
High Court challenging the validity of O.M. 12.10.2014 and the
result declared on 21.05.2015 and praying for quashing the same
and for preparation of result afresh without giving effect to O.M.
12.10.2014 – The impugned result was also assailed on the ground G
that it contravened s.3(1) of UP Reservation Act, 1994 and r.15(3)
of UP Subordinate Agriculture Services Rules, 1993 and also that
the percentage of reservation to SC/ST and OBC categories crossed
the upper limit of 50% – Held: Revised requisition dated 20.8.2014
and OM dated 12.10.2014 was valid since it was only intended to
H
1071
1072 SUPREME COURT REPORTS [2019] 12 S.C.R.

A rectify wrongful calculation of number of vacancies in different
categories and to comply with requisite percentage of quota of
reservation in different categories as per 1994 Act – By virtue of
r.15 and r.6 of UP Subordinate Agriculture Services Rules, 1993
(Agriculture Service Rules, 1993), the Recruitment Authority is
empowered to rectify the wrongful calculation and make a revised
B
requisition of number of vacancies in different categories which is
in accordance with the provisions of UP Reservation Act, 1994 –
High Court was not right in saying that the diploma holders ought
not to have been absorbed against the “General category” so as to
alter the advertised number of posts against the “General category”
C – Absorption of diploma holders were required to be done only
against the “General quota” – Revising the number of vacancies in
different categories to satisfy reservation quota scheme as per UP
Reservation Act, 1994 would not amount to changing the rules of
the game after the commencement of the selection process – Having
participated in the interview and when they failed in the final
D
selection, it was not open to the private respondents/intervenors to
turn around and challenge the revised notification dated 12.10.2014
and the final select list dated 21.05.2015 – The filling up of the
unfilled horizontal reservation by the candidates from the
respective vertical reservation is in accordance with the policy of
E the government and the same cannot be faulted with – Uttar Pradesh
Public Services (Reservation for Scheduled Castes, Scheduled Tribes
and Other Backward Classes) Act, 1994.
Service law: Selection process – Reservation scheme –
Appointment letter not issued to 906 candidates – Plea to exercise
F power under Art.142 of the Constitution of India – The 906
candidates were not issued the appointment orders in order to keep
the appointment within the permissible percentage of reservation
as per UP Reservation Act, 1994 – These 906 candidates who were
left out and were not issued appointment orders were ranked lower
in the merit list than the last selected candidate in their respective
G category under the reservation limit as identified by the Personnel
Department, therefore appointment orders were not issued to them
– This cannot be said to be arbitrariness or discrimination as
selection of candidates was on the basis of the merit list –
Therefore, power under Art.142 of the Constitution of India cannot
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1073
SECRETARY, PERSONNEL DEPTT.

be exercised to issue direction to the State to issue appointment A
orders to 906 candidates – Constitution of India – Art.142.
Service law: Selection process – It is a settled law that a
person having consciously participated in the interview cannot turn
around and challenge the selection process – Having appeared in
the interview without any demur or protest, it is not open to the B
candidates to challenge the selection process on the ground that
there was modification in the number of vacancies in different
categories and they are estopped by the principle of estoppel from
challenging the same – Doctrine of estoppel.
Service law: Selection process – It is fairly well-settled that C
the selected candidates do not have any indefeasible right to be
appointed – Merely because the names of candidates were included
in the provisional select list, they do not acquire any indefeasible
right to be appointed.
Doctrines/Principles: Doctrine of res judicata – Batch of writ D
petitions disposed of by High Court by common judgment containing
common operative portion of judgment – Appeal filed in few writ
petitions – Decision of Supreme Court – Whether judgment rendered
in other writ petitions by High Court having not been challenged,
have attained finality and operate as res judicata – Held: The
decision of Supreme Court is binding on all the writ petitioners E
before High Court even though they were not parties in the appeal
before the Supreme Court.
Allowing the appeals, the Court
HELD: F
1. Revised requisition dated 20.08.2014 and Office
Memorandum dated 12.10.2014 notifying revised vacancies in
different categories in consonance with the provisions of UP
Reservation Act, 1994 and UP Subordinate Agriculture Service
Rules, 1993
G
1.1 On the basis of the government order dated 20.08.2014,
the Department of Agriculture sent the revised requisition to
the UP Public Service Commission (UPPSC). The declaration of
result of the written examination was issued based on the revised
requisition of the posts. The UPPSC acted on the revised
H
1074 SUPREME COURT REPORTS [2019] 12 S.C.R.

A requisition of the Government dated 20.08.2014. Before the
candidates were called for interview, Office Memorandum dated
12.10.2014 was issued by the UPPSC revising the number of
vacancies for different categories. The UPPSC has thus not
travelled beyond the requisition sent by the Government. [Para
24, 25] [1096-F; 1097-B-C]
B
1.2 The Agriculture Service Rules, 1993 clearly stipulate
that it is for the Recruitment Authority to determine the number
of vacancies to be filled during the year and would also determine
the number of vacancies for Scheduled Castes, Scheduled Tribes
and other category candidates under Rule 6. On noticing that
C there was wrongful calculation of the category-wise vacancy, the
Recruitment Authority is empowered to rectify the wrongful
calculation and make a revised requisition which is in accordance
with the provisions of UP Reservation Act, 1994 and Agriculture
Service Rules, 1993. [Para 29] [1099-E-F]
D R.K. Sabharwal and Others v. State of Punjab and
Others (1995) 2 SCC 745 : [1995] 2 SCR 35
– relied on.
1.3 Revising the number of vacancies in OBC category as
2030 does not violate the right of the General category candi-
E dates because the State Legislature has enacted the Reserva-
tion Act No.4 of 1994 providing for reservation, keeping in mind
the parameters of Article 16(4) of the Constitution of India. By
revising requisition, the State has endeavoured to achieve the
object of the reservation by working out the vacancy for selec-
F tion of the posts in question without causing any prejudice to the
General category candidates. The revised requisition so made
was within the purview of the competency of the State in order to
achieve the object of the UP Reservation Act, 1994. Moreover,
the total number of vacancies have not been changed or modi-
fied. [Para 32] [1101-B-C]
G
1.4 The category-wise vacancy position was changed after
a meeting of all concerned was held i.e. representatives of the
Karmik Department as well as of representatives of the
Administrative Department and it was found that a wrong
calculation of category-wise vacancy had been sent earlier. If the
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1075
SECRETARY, PERSONNEL DEPTT.

original requisition dated 22.10.2013 was to be retained, it would A
have resulted in anomalies of the category-wise posts thereby
contravening the provisions of the UP Reservation Act, 1994.
Hence, the revised requisition was sent on 20.08.2014 from the
Administrative Department to the Director, Agriculture who in
turn communicated the same to the UPPSC. By the revised
B
requisition of vacancies for various categories, there is no
violation of any rules; on the other hand, it is only to rectify the
calculation of vacancies in different categories and to comply with
the requisite quota of reservation in different categories as per
UP Reservation Act, 1994. This aspect was not properly
appreciated by the High Court. [Para 34] [1101-F-H] C
2. Absorption of the Diploma Holders
The earlier requisition was sent showing only 566 vacancies
against the OBC quota, while in fact, it should have been 2030,
as all the diploma holders were appointed against the General
quota and they have not been appointed against the OBC quota. D
At the time of absorption of the diploma holders in the year 1998,
there was no provision for reservation for Backward Class
category in the concerned department; only by U.P. Reservation
(Amendment) Act, 2002, the reservation was extended to the
concerned department and therefore, the appointees/diploma E
holders have to be considered only against the “general quota”
candidates. As seen from the affidavit filed by the Deputy Director,
Agriculture (Training), the diploma holders were not required to
be counted against OBC quota; by a wrongful calculation, they
have been adjusted against the OBC quota which is not
permissible in law as reservation cannot be granted F
retrospectively. By the revised requisition, the Government
sought to rectify this mistake which resulted in alteration in
number of vacancies available against certain categories. Such
rectification of mistake by Government cannot be faulted nor can
this be a ground for recalling the advertisement in question and G
issuing a fresh one. The variation in number of vacancies against
“General quota” was only because of the absorption of the diploma
holders against the “General quota” and rectifying the mistake
of adjustment against “OBC vacancies”. [Paras 37, 38]
[1102-E-F; 1103-D-G]
H
1076 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 3. O.M. dated 12.10.2014 revising the vacancies category-
wise – whether amounts to changing the rules of the game after
the commencement of the selection
3.1 In the instant case, only wrongful calculation in the
number of vacancies in different categories had been corrected
B in order to satisfy the percentage of reservation against various
categories as per the provisions of UP Reservation Act, 1994.
Such correction cannot be said to changing the rules or basis of
selection. The eligibility criteria was not changed. The diploma
holders were wrongly counted against the vacancies in OBC
category; while they could not have been counted against OBC
C category and while doing so, a wrongful calculation had been
arrived and the same has to be corrected by counting the diploma
holders against the general category. [Paras 42, 44] [1105-D-E;
1106-D-E]
K. Manjusree v. State of Andhra Pradesh and Another
D (2008) 3 SCC 512 : [2008] 2 SCR 1025 ; Hemani
Malhotra v. High Court of Delhi (2008) 7 SCC 11 :
[2008] 5 SCR 1066 – distinguished.
3.2 Instruction No.7 in the advertisement dated 22.10.2013
stipulated that the number of vacancies may increase or decrease.
E Agriculture Service Rules, 1993 also clearly stipulated the
prerogative of the government to determine the number of
vacancies in accordance with the rules. The writ petitioners who
are unsuccessful candidates have not demonstrated as to how
they were prejudicially affected by the change in number of
F vacancies against “General category” and “OBC category”.
Notification by the UPPSC dated 12.10.2014 is based upon the
revised requisition of the vacancies by the order of the
Administrative Department dated 20.08.2014. This would not
amount to changing the rules of the game after the selection
process had commenced nor it had affected the selection process
G by changing the eligibility criteria. [Paras 45, 48, 49] [1108-B-D]
Tej Prakash Pathak and Others v. Rajasthan High Court
and Others (2013) 4 SCC 540 – relied on.
4. Having participated in the interview, the private
respondents cannot challenge the Office Memorandum dated
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1077
SECRETARY, PERSONNEL DEPTT.

12.10.2014 and the selection. A
It is a settled law that a person having consciously
participated in the interview cannot turn around and challenge
the selection process. The candidates who appeared in the
interview were well aware about the modification/revision in
number of vacancies of Technical Assistants in different B
categories. The private respondents/intervening applicants have
appeared in the interview with their eyes wide open regarding
the modified vacancies to be filled up in various categories of the
posts. Having appeared in the interview without any demur or
protest, it is not open to the candidates to challenge the selection
process on the ground that there was modification in the number C
of vacancies in different categories and they are estopped by the
principle of estoppel from challenging the same. [Paras 50, 54]
[1108-E-F; 1110-G-H; 1111-A]
5.Unfilled vacancies of Horizontal Reservation filled by
candidates of vertical reservation Contention of the private D
respondents is that as per the statutory requirement, the
horizontal reserved vacancies were unfilled and those unfilled
vacancies of horizontal category were filled by vertical reservation
candidates/other category candidates, which is in violation of the
statutory provisions vitiating the selection process. The UP Public E
Service Commission furnished the details as to the number of
vacancies reserved for horizontal category and the number of
candidates found suitable and placed in the respective categories.
On behalf of UP Public Service Commission, it was submitted
that one of the policies of the State Government regarding
horizontal reservation is that, if the suitable candidates for filling F
the vacancies reserved for such posts of horizontal reservation
are not available and the same are not carried forward; they are
filled up by other suitable candidates from amongst the candidates
belonging to vertically reserved categories according to their
merit. It was submitted that unfilled horizontal reservation G
vacancies were thus filled up by suitable candidates of respective
vertical categories according to their merit which is as per the
policy of the government. The High Court was not right in finding
fault with the filling up of vacancies reserved for horizontal
reservation with other candidates of respective vertical
reservation. [Para 56] [1111-D-E; 1112-A-C] H
1078 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Madan Lal and Others v. State of J&K and Others
(1995) 3 SCC 486 : [1995] 1 SCR 908; K.H. Siraj v.
High Court of Kerala and Others (2006) 6 SCC 395:
[2006] 2 Suppl. SCR 790; Union of India and Others
v. S. Vinodh Kumar and Others (2007) 8 SCC 100 :
[2007] 10 SCR 41; Sadananda Halo and Others v.
B
Momtaz Ali Sheikh and Others (2008) 4 SCC 619:
[2008] 3 SCR 497 – relied on.
6. Plea of res judicata
6.1 The respondents have sought to invoke the principles
C of res judicata by contending that the common judgment dated
10.02.2017 passed by the High Court involved eighty-eight
petitions which were allowed with the direction specified in the
impugned judgment. Out of twenty-one appeals filed before this
Court, the judgment of the High Court passed in six writ petitions
only has been challenged; other matters have not been
D challenged either by the State or by the appellants. It was
contended that when the appellants have not challenged the
common judgment rendered in all the eighty-eight writ petitions
and in the present appeals, only the judgment rendered in Writ-
C No.34196 of 2015 and few other writ petitions are challenged,
E the judgment rendered in other writ petitions having not been
challenged, have attained finality and thus, operate as res judicata.
The above contention does not merit acceptance.
[Paras 57, 58] [1112-D-G; 1113-A]
6.2 In the instant case, before the High Court, the
F contentions raised were the same and common arguments were
advanced. The High Court dealt with the batch of writ petitions
and disposed all of them by common judgment. Since it is a
common judgment with common reasonings, the present batch
of appeals would not result in any inconsistent decree or order
as all of them arise out of the common judgment containing
G common operative portion of the judgment. Thus, submission is
liable to be rejected. In M/s Shenoy case, a number of writ
petitions were allowed by the High Court. However, the State
chose to file appeal only in one case which came to be allowed by
the Supreme Court in the said case. In that fact situation, this
H Court took the view that the decision of this Court was binding
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1079
SECRETARY, PERSONNEL DEPTT.

on all the writ petitioners before the High Court even though A
they were not the respondents in the appeal before the Supreme
Court. [Paras 60, 61] [1113-F-H; 1114-A-B]
M/s Shenoy and Co., Represented by its partner Bele
Srinivasa Rao Street, Bangalore and Others v. Commer-
cial Tax Officer, Circle II, Bangalore and Others B
(1985) 2 SCC 512 : [1985] 3 SCR 659 ; Director of
Settlements, A.P. and Others v. M.R. Apparao and An-
other (2002) 4 SCC 638 : [2002] 2 SCR 661; Fida
Hussain and Others v. Moradabad Development Au-
thority and Another (2011) 12 SCC 615 : [2011] 9 SCR
290 – relied on. C

6.3 Before the High Court in several writ petitions,
unsuccessful candidates challenged the revised notification dated
12.10.2014 and also the result dated 21.05.2015 published on
22.05.2015. All the writ petitions were disposed of by the common
judgment. Thus, the contentious issues raised by the parties stood D
determined on the same set of facts and on the same reasonings.
There is no merit in the contention that the judgment passed by
this Court would bind only the parties in Writ-C No.34196 of
2015 and that the other judgments passed by the High Court
would stand and operate as res judicata. As held in M/s Shenoy E
and Co. and other judgments, to do so is to ignore the binding
nature of a judgment of this Court under Article 141 of the
Constitution of India. [Para 63] [1115-F-H]
7. Re: Contention – Appointment letters not issued to 906
candidates and plea to exercise power under Article 142 of the F
Constitution of India:
7.1 After the interview was completed, the UPPSC has
selected 6599 candidates and the category-wise details of the
candidates so recommended by the Commission. The UPPSC
has withheld the result of 29 candidates. The recommendation G
so made by the UPPSC was in excess of the permissible
percentage of reservation as per UP Reservation Act, 1994. In
fact, this was one of the grounds of challenge in the writ petition
to assail the select list. In the counter filed by the Principal
Secretary, Government of UP, it is stated that change in the
H
1080 SUPREME COURT REPORTS [2019] 12 S.C.R.

A category-wise vacancies was further scrutinised in terms of Uttar
Pradesh Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes) Act, 1994. It
was found that a harmonious construction of its various sections
was needed to be taken. In the counter affidavit, it is stated that
the total of 6628 vacancies was exceeding the demarcated
B
percentage. Thereafter, the application of horizontal reservation
for dependents of Freedom Fighters, Ex-Servicemen, Disabled
persons and Women was proposed. [Paras 66, 67] [1116-H; 1117-
A, C-E; 1118-A]
7.2 Writ Petition No.62112/2015 was filed by few of the
C successful candidates for issuance of appointment letter and the
High Court vide its order dated 15.12.2015 directed the official
respondents to issue appointment order. The High Court further
clarified that any such appointment made as well as the select list
shall abide by any order which may be passed by the Division
D Bench. Pursuant to the said order, the Chief Secretary,
Government of UP by its letter dated 22.12.2015 gave directions
to the Department that appointment orders be issued to the
selected candidates and that the appointment should abide by
the final decision of the court. Accordingly, the appointment
orders were issued to the selected candidates on 30.01.2016.
E The appointments were made subject to the outcome of the writ
petition. Thus, total of 5669 candidates were issued appointment
orders; the appointment orders were withheld for 24 candidates
as the documents were withheld by UP Public Service
Commission. [Para 68] [1118-C-D, G-H]
F 7.3 The 906 candidates who were left out and were not
issued appointment orders were ranked lower in the merit list
than the last selected candidate in their respective category under
the reservation limit as identified by the Personnel Department,
therefore appointment orders were not issued to them. This
G cannot be said to be arbitrariness or discrimination as selection
of candidates was on the basis of the merit list. Further, the
revised requisition dated 20.08.2014, on the basis of which the
impugned office memorandum was issued itself was a case of
excessive requisition, that is, beyond the permissible limits set
out by the UP Reservation Act, 1994. The direction to
H accommodate the surplus candidates cannot be passed as that
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1081
SECRETARY, PERSONNEL DEPTT.

would be in excess of the permissible limit as prescribed by the A
Act and would be in violation of prescribed limits of reservation
as per the UP Reservation Act, 1994. In exercise of power under
Article 142 of the Constitution of India, if direction is issued to
appoint 906 candidates, it will be crossing the limits of 50%
reservation which would be violation of the constitutional
B
provisions and the UP Reservation Act, 1994. [Paras 69, 70] [1119-
B, C-E]
7.4 It is fairly well-settled that the selected candidates do
not have any indefeasible right to be appointed. Merely because
the names of candidates were included in the provisional select
list, they do not acquire any indefeasible right to be appointed. C
Merely because UPPSC has recommended the names of 906
candidates, they do not acquire any indefeasible right for being
appointed. The present vacancies i.e. 4838 and the available
vacancies i.e. 2779 are the future vacancies which are to be filled
up by a fresh advertisement and by participation of all the eligible D
candidates including the 906 candidates and other unsuccessful
candidates. 2779 vacancies existing as on date, which are the
vacancies as on date i.e. in 2019 cannot be filled up by the
candidates who got selected pursuant to the advertisement in
2013-2014. [Paras 71, 75] [1119-G-H; 1120-A; 1121-E-F]
E
State of Bihar and Others v. Amrendra Kumar Mishra
(2006) 12 SCC 561 : [2006] 6 Suppl. SCR 650 –
relied on.
Union of India and Others v. Permanand Singh (1999)
SCC (L&S) 625; D.M. Premkumari v. Divisional Com- F
missioner, Mysore Division and Others (2009) 12 SCC
267 : [2009] 1 SCR 1094 – referred to
8. Article 142 of the Constitution of India confers wide
power upon the Supreme Court to do complete justice between
the parties. Though the powers conferred on the Supreme Court G
by Article 142 are very wide, the same cannot be exercised to
pass an order inconsistent with express statutory provisions of
substantive law. In the case in hand, as per the provisions of
Uttar Pradesh Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes) Act, 1994,
specific percentages of vacancies have been reserved for different H
1082 SUPREME COURT REPORTS [2019] 12 S.C.R.

A categories. In exercise of power under Article 142 of the
Constitution of India, no direction can be issued to the State of
UP to issue appointment orders to the 906 candidates.
[Para 76] [1121-G; 1122-B-D]
Ramji Veerji Patel and Others v. Revenue Divisional
B Officer and Others (2011) 10 SCC 643 : [2011] 14 SCR
821; Supreme Court Bar Association v. Union of India
and Another (1998) 4 SCC 409 : [1998] 2 SCR 795 –
relied on
Union of India and Others v. O. Chakradhar (2002) 3
C SCC 146 : [2002] 1 SCR 1091; Poonam v. State of
Uttar Pradesh and Others (2016) 2 SCC 779 : [2015]
14 SCR 565 ; Sri Gangai Vinayagar Temple and
Another v. Meenakashi Ammal and Others (2015) 3 SCC
624 : [2014] 12 SCR 845 ; N.T. Devin Katti and Others
v. Karnataka Public Service Commission and Others
D (1990) 3 SCC 157 : [1990] 2 SCR 239 ; Government
of India through Secretary and Another v. Ravi Prakash
Gupta and Another (2010) 7 SCC 626 : [2010] 7 SCR
851; Madan Mohan Sharma and Another v. State of
Rajasthan and Others (2008) 3 SCC 724 : [2008] 3
E SCR 232 ; C. Channabasavaih v. State of Mysore AIR
1965 SC 1293 : [1965] SCR 360 – referred to.
Case Law Reference
[2014] 12 SCR 845 referred to Para 15

F [1990] 2 SCR 239 referred to Para 16
[2010] 7 SCR 851 referred to Para 16
[1995] 2 SCR 35 relied on Para 30
[2008] 3 SCR 232 referred to Para 39
G (2013) 4 SCC 540 referred to Para 43
[1965] SCR 360 referred to Para 43
[2008] 2 SCR 1025 distinguished Para 44
[2008] 5 SCR 1066 distinguished Para 44
H [1995] 1 SCR 908 relied on Para 51
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1083
SECRETARY, PERSONNEL DEPTT.

[2006] 2 Suppl. SCR 790 relied on Para 52 A
[2007] 10 SCR 41 relied on Para 53
[2008] 3 SCR 497 relied on Para 53
[1985] 3 SCR 659 relied on Para 61
[2002] 2 SCR 661 relied on Para 62 B
[2011] 9 SCR 290 relied on Para 62
[2002] 1 SCR 1091 referred to Para 64
[2015] 14 SCR 565 referred to Para 65
C
[2006] 6 Suppl. SCR 650 relied on Para 71
(1999) SCC (L&S) 625 referred to Para 74
[2009] 1 SCR 1094 referred to Para 74
[2011] 14 SCR 821 relied on Para 76
D
[1998] 2 SCR 795 relied on Para 76
CIVIL APPELLATE JURISDICTION: Civil Appeal No.4815 of
2019
From the Judgment and Order dated 10.02.2017 by the High Court
of Judicature at Allahabad in Writ-C No. 34196 of 2015 E
With
Civil Appeal Nos.4817/2019, 4816/2019, 4819/2019,
4818/2019, 4821/2019, 4820/2019, 4830/2019, 4829/2019, 4833/2019,
4825/2019, 4827/2019, 4834/2019, 4828/2019, 4824/2019, 4835/2019,
4822-23/2019, 4836/2019, 4826/2019, 4832/2019 and 4831/2019 F

P.S. Patwalia, M. Karpaga Vinayagam, Guru Krishna Kumar,
Ms. Mahalakshmi Pavani, Ms. Vibha Datta Makhija,Sr.Advs., Pradeep
Kumar Yadav, Ms. Harshika Verma, Akchhay Chadha, Sanjeev Malhotra,
G.S. Mani, Nitin Kumar, G.D. Ahmed, G. Balaji, Ms. Shiva Vijaya Kumar,
Divyanshu, Suyash Srivastva, Modhumay Misra, Satyendra Kumar G
Mishra, Ravindra Sadanand Chingale, Prashant Shukla, Praveen Gaur,
Priyanshu Agarwal, Ms. Aadiya Mishra, A. Subba Rao, Yatish Mohan,
Dr. Kedar Nath Tripathy, Mehul M. Gupta, Abhishek Kumar Saroj, R.
P. Gupta, Yatish Mohan, Ms. Vinita Y. Mohan, Ms. Manju Jetley, Alok
H
1084 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Singh, Dr. Amarendra Pratap Yadav, Abhishek Singh and Ms. Manju
Sharma Jetley, Advs. for the Appellants.
S.R. Singh,Sr.Adv. Adarsh Upadhyay, Ms. Sunita Pandit, Krishna
Kumar Yadav, Alok Mishra, Raghvendra Upadhyay, Ms. Purnima Jain,
Ajay Kumar, Rajesh Goyal, Alok Mishra, Amarendra Pratap Yadav,
B Abhishek Singh, Ms. Khushboo Vinodray Malkan, Anil Nauriya,
Ms. Sumita Hazarika, Ms. Ipsita Behura, K. Parameshwar, M.V.
Mukunda, Sunil Kumar Singh, Amit Kumar Srivastava, Hariom Sharan
Singh, Ms. Sofia Begum, Dr. Vinod Kumar Tewari, Sandeep Kr. Dwivedi,
Awadhish Kumar, Pradeep Kr. Dwivedi, Satyam Pandey, Ms. Antaryami
Upadhyay, Rutwik Panda, Abhishek Upadhyay, Ms. Mridula Ray
C Bharadwaj, Binay Kumar Jain, Hitesh Kumar Sharma, Bijender Singh
Choudhry, Dr. (Mrs.) Vipin Gupta, Shrish Kumar Misra, Ankit Yadav,
Ms. Deepika Mishra, Bimlesh Pandey, M/s.Sheenu Chauhan, Ajay
Kumar Singh, Dharm Singh, Karunakar Mahalik, Ms. Ruchira Goel,
Abhishek Raj, Nilendra Pratap Singh, Shailendra Pratap Singh, Ms. Neha
D Singh, Prithvi Pal, Ms. Rekha Rani Dey, Siddharth Kumar, Ms. Divya
Roy, Satyajeet Kumar, Udayaditya Banerjee, Susheel Tomar, Sanjeev
Malhotra, Balraj Dewan, Dinesh Kr. Tiwary, Ms. Anita Pandey, Ms.
Rajmala Dohare, Ms. Shama Sharma, Chandan Kr., Santosh Kumar
Tripathi, Lakshmi Raman Singh, Ms. Anita Tripathi, Ms. Shweta Yadav,
Ankur Yadav, Anil Kaushik, Anurag Singh, Anil Kumar Mishra, Bipin
E Bihari Singh, Alok Singh, Advs. for the Respondents.
The Judgment of the Court was delivered by
R. BANUMATHI, J.
1 These appeals arise out of the judgment dated 10.02.2017 in
F Writ-C No.34196 of 2015 and batch matters passed by the High Court
of Judicature at Allahabad in and by which the High Court while uphold-
ing the result of written examination for the post of Technical Assistant-
Group-C Agriculture Department, quashed selection process subsequent
to the written examination and directed the Principal Secretary, State of
G U.P. to send requisition to the Uttar Pradesh Public Service Commission
on the basis of quantifiable data and cadre strength as well as actual
persons working in different categories so that the interview may be
conducted afresh and complete the selection.
2. Brief facts which led to filing of these appeals are as under:-
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1085
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

The Uttar Pradesh Public Service Commission issued an A
advertisement No.A-5, E-1/2013 dated 22.10.2013 inviting applications
for 6628 vacancies of Subordinate Agriculture Services, Cadre-lll
(Technical Assistant Group-C). In the said advertisement for the total
requisitioned 6628 vacancies, category-wise vacancies are as under:-
Advertisement Number Vacancies in Subordinate Agriculture B
Services, Cadre-III (Technical Assistant Group-C)
Vacancies in Subordinate Agriculture Services, Cadre-III
Advertisement Number (Technical Assistant Group-C)

Advt. No. A-5, E-1/2013 dt. Unreserved SC ST OBC
22.10.2013 C

Total vacancies: 6628 3616 2211 235 566

Horizontal reservation in original advertisement is as under:-

Women Handicapped Dependents of Freedom Fighter Ex-servicemen D
1325 253 132 331

The appellants as well as the private respondents applied for and
appeared in the written examination held on 30.03.2014. As per the Uttar
Pradesh Public Services (Reservation for Scheduled Castes, Scheduled
Tribes and Other Backward Classes) Act, 1994 (for short “UP E
Reservation Act, 1994”), specific percentages of vacancies have been
reserved for different categories viz., (a) in the case of Scheduled Castes
– 21% (b) in the case of Scheduled Tribes – 2% and (c) in the case of
OBC–27%. It was brought to the notice of the State Government that
there was wrongful calculation of category-wise vacancies in the earlier F
requisition and therefore, the earlier requisition was required to be revised.
After a detailed inquiry as to the cadre strength of Technical Assistant –
Group C and the actual working strength of persons in different
categories, it was found that initially the number of requisitioned candidates
in the category of General/Unreserved and OBC were wrongly
calculated. It was noticed that the diploma holders who were required to G
be appointed against “Unreserved quota”; but were wrongly appointed
against the “OBC quota” and the same was to be rectified. According
to the State, after adjustment of diploma holders against “General
Category” and in order to fulfill the requirements of constitutional and
H
1086 SUPREME COURT REPORTS [2019] 12 S.C.R.

A statutory mandate of reservation, the State Government has reworked
the vacancies for different categories of persons and sent the revised
requisition for the vacancies for different categories. The State
Government after taking opinion of the Department of Personnel vide
its order dated 20.08.2014 approved the revised vacancies for different
categories of persons in accordance with the applicable reservation rules
B
and accordingly, revised the requisition. Based on the said order dated
20.08.2014, Department of Agriculture vide its letter No.AC/101 dated
20.08.2014 sent the revised requisition for 6628 posts to the UP Public
Service Commission as under:-

Advertisement Number Vacancies in Subordinate Agriculture Services, Cadre-III
C
(Technical Assistant Group-C)
Government Order No.941/12-4-14-
1992/2014 dt. 20.08.2014 Unreserved SC ST OBC
Total vacancies: 6628

D 2515 1882 201 2030
Horizontal reservation in amended requisition is as under:

Women Handicapped Dependents of Freedom Fighter Ex-servicemen
1325 252 132 330

E
Based upon the above revised requisition, on 15.09.2014, UP Public
Service Commission declared the result of the written examination
wherein, both the appellants as well as the private respondents were
declared successful. After declaration of the result of written examination,
F the UP Public Service Commission issued an Office Memorandum dated
12.10.2014 notifying 2515 posts for Unreserved/General category; 1882
posts for SC category; 201 posts for ST category and 2030 posts for
OBC category in consonance with the government order dated
20.08.2014. The successful candidates who cleared the written
examination appeared for interview held from 27.10.2014 onwards.
G Finally, when the result of select list candidates was declared on
21.05.2015, the private respondents did not qualify.
3. Number of writ petitions came to be filed before the High Court
by the unsuccessful candidates against respondents No.1 to 4 and by
impleading some of the successful candidates assailing the validity of
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1087
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

the Office Memorandum dated 12.10.2014 and the result declared on A
21.05.2015 praying that they be quashed. They further prayed for direction
to respondents No.1 to 4 to prepare the result afresh without giving
effect to Office Memorandum dated 12.10.2014. It was contended that
change in the number of vacancies in different categories is illegal and
the same amounts to changing the rules of the game in the middle of the
B
selection process. The impugned result was also assailed on the ground
that it is in contravention to Section 3(1) of UP Reservation Act, 1994
and Rule 15(3) of UP Subordinate Agriculture Services Rules, 1993
(Agriculture Service Rules, 1993) and that the percentage of reservation
to SC/ST and OBC categories crossed the upper limit of 50%.
4. After referring to decisions on the aspect of reservation, vide C
the impugned judgment, the High Court allowed the writ petitions inter
alia holding as under:-
The entire maneuvering in the instant case has taken place
in the garb of diploma holders wherein, 1749 diploma holders
in the department were adjusted/regularized in the year 1998. D
Even at the time of their regularization, their heads were
counted and the same is reflected from their regularization
orders and once their heads were already counted qua their
respective categories and reserved category of persons
especially OBC adequately represented, there was no E
occasion for putting all the diploma holders against the open
category.
After the declaration of result of written examination on
15.09.2014, changing the number of vacancies for different
categories amounts to violation of Rule 15(3) of Agriculture F
Service Rules, 1993 during the pendency of the advertisement
and thus, depriving 3303 general category candidates even to
appear in the interview and allowing 4392 more candidates
of OBC category to appear for interview by bringing them in
the zone of consideration for the selection, amounts to changing
the rule of the game during the process of selection. G
The Commission declared the final result on 21.05.2015
wherein, 88% candidates belonging to reserved categories
have been shown to be selected whereas, only 12%
candidates under open category have been selected and the
H
1088 SUPREME COURT REPORTS [2019] 12 S.C.R.

A entire selection is in contravention to Section 3(1) of UP
Reservation Act, 1994 and the Rule 15(3) of the Agriculture
Service Rules, 1993.
On the above findings and other reasonings, the High court
allowed the writ petitions by holding that subsequent to the declaration
B of the result of written examination, the entire selection is vitiated and as
such, the same cannot be sustained. Placing reliance upon Union of
India and Others v. O. Chakradhar(2002) 3 SCC 146, the High
Court held that when the court comes to the conclusion that the
selection is tainted, there is no necessity to serve individual notices and
as such, the entire selection can be cancelled. The High Court issued a
C direction to the Principal Secretary, Government of U.P. to send a fresh
requisition to the UP Public Service Commission on the basis of
quantifiable data, existing strength of cadre as well as the actual persons
working in different categories forthwith so that interview be conducted
at the earliest and that the entire exercise be completed within four
D months.
5. Being aggrieved by the impugned judgment, the appellants who
are the selected candidates and have already joined their respective
posts have filed these appeals before this Court. Vide order dated
03.03.2017, this Court ordered to maintain status-quo as existing on the
E said date.
6. The batch of appeals were heard at length and the hearing
stretched over number of dates. We have heard Mr. P.S. Patwalia,
learned Senior counsel, Mr. M. Karpaga Vinayagam learned Senior
counsel, Mr. Guru Krishna Kumar, learned Senior counsel, Ms.
F Mahalakshmi Pavani, learned Senior counsel, Ms. Vibha Datta Makhija,
learned Senior counsel, Mr. Mehul M. Gupta, learned counsel and Mr.
A. Subba Rao, learned counsel appearing on behalf of the appellants.
We have heard Mr. S.R. Singh, learned Senior counsel appearing on
behalf of respondent-State. We have also heard Mr. Alok Mishra, learned
counsel, Mr. K. Parmeshwar, learned counsel, Mr. Anil Nauriya, learned
G counsel, Ms. Sumita Hazarika, learned counsel and Mr. Dinesh Kumar
Tiwary, learned counsel appearing on behalf of the applicants-respondents.
Contentions of the appellants
7. Mr. P.S. Patwalia, Senior Counsel: Contending that the
revised requisition was in accordance with the provisions of UP
H
Reservation Act, 1994, the learned Senior counsel submitted that there
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1089
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

are no allegations of malafide/arbitrariness to vitiate the selection process. A
It was submitted that based on the complaint received by the State
Backward Class Commission, the Department of Agriculture has
undertaken an exercise and found that there was wrongful calculation
of the category-wise vacancy and the earlier requisition was required to
be rectified. Learned Senior counsel submitted that the revised Office
B
Memorandum of the UP Public Service Commission dated 12.10.2014
is based on the revised requisition of the Department of Agriculture
dated 20.08.2014 and only the breakup of vacancies category-wise has
been reworked and revised and while so, the High Court erred in saying
that the rules of the game had been changed in the midst of the selection
process vitiating the selection. It was submitted that the eligibility criteria C
have not been changed at all and the High Court erred in relying upon K.
Manjusree v. State of Andhra Pradesh and another (2008) 3 SCC
512and Hemani Malhotra v. High Court of Delhi (2008) 7 SCC
11for setting aside the process of selection from the stage of declaration
of result of the written examination. Learned Senior counsel further
D
submitted that the private respondents/intervenors having participated in
the interview and having found that they are unsuccessful, have filed the
writ petitions and they are estopped from challenging the Office
Memorandum dated 12.10.2014 and the selection process.
8. Mr. M. Karpaga Vinayagam, Senior Counsel: Learned
Senior counsel submitted that the revised Office Memorandum of UP E
Public Service Commission dated 12.10.2014 was based upon the revised
requisition sent by the Department of Agriculture dated 20.08.2014 and
only when the private respondents found themselves unsuccessful, they
chose to challenge the Office Memorandum dated 12.10.2014. Learned
Senior counsel further submitted that the private respondents have not F
raised any protest over the change in number of vacancies and the
appellants having been selected and presently working, great prejudice
would be caused to them if the entire selection process is set aside.
9. Mr. Guru Krishna Kumar, Senior Counsel: Learned Senior
Counsel submitted that the State has filed detailed counter affidavit G
explaining the reason for revised requisition and that the same was done
only to fulfill the constitutional mandate of reservation and the statutory
provisions in UP Reservation Act, 1994. The High Court has not considered
this aspect in proper perspective. Learned Senior counsel further
submitted that the private respondents have not shown as to how they
H
1090 SUPREME COURT REPORTS [2019] 12 S.C.R.

A are affected by the increase in number of posts for OBCs. It was
contended that non-impleading of successful parties in the writ petition
is fatal and the High Court was wrong in saying that impleading of some
of the successful candidates would be enough. Learned Senior counsel
further contended that the rules of the game was not changed and only
the category-wise vacancies were changed and the Government has
B
the power to rectify the requisite number of vacancies in order to fulfill
the constitutional mandate of reservation and the provisions of UP
Reservation Act, 1994.
10. Ms. Mahalakshmi Pavani, Senior Counsel: Reiterating
the above submissions, learned Senior counsel submitted that the eligibility
C criteria for selection of Technical Assistant – Group C has not been
changed at all; but only the breakup of vacancies category-wise has
been reworked and the High Court was not right in setting aside the
selection of the appellants. It was submitted that the successful candidates
have been working for more than three years and their selection and
D appointment are based on merit in different categories and the entire
selection cannot be set aside upsetting the entire process.
11. Ms. Vibha Datta Makhija, Senior Counsel: Reiterating
the above submissions, learned Senior counsel contended that after issuing
earlier requisition dated 03.10.2012, department has undertaken an
E exercise and found that there was wrongful calculation of category-
wise vacancies. It was further contended that a complaint was made
before the Backward Classes Commission and after the complaint, on
direction from the State Government, the Department of Agriculture
has undertaken the exercise and found that there was wrongful calculation
of the category-wise vacancy and the earlier requisition was thus required
F to be rectified. It was submitted that when there is no allegation of mala
fide/arbitrariness,the entire selection process cannot be set aside.
12. Mr. Mehul M. Gupta and Mr. A. Subba Rao, learned
counsel have also reiterated the above submissions and inter alia made
their contentions. Mr. Mehul M. Gupta prayed to exercise the power
G under Article 142 of the Constitution of India to issue appointment orders
to 906 candidates.
Contentions of the State
13. Mr. S.R. Singh, Senior counsel: Taking us through the
detailed counter affidavit filed by the State, learned Senior counsel has
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1091
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

submitted that the High Court was not right in holding that the revised A
requisition as amounting to changing the rules of the game during the
process of selection. Learned Senior counsel has submitted that mere
rectification of mistake in the calculation of vacancies category-wise
before commencement of interview would not amount to changing the
rules of the game during the process of selection. Learned Senior counsel
B
also made elaborate submissions as to the absorption of diploma holders
against the posts meant for “General quota”. It was submitted that to
keep the appointments within the permissible statutory limits, the
appointments were issued only to 6599 candidates and 29 candidates
withheld for want of details. It was submitted that 906 candidates were
not given appointments as it would be beyond the permissible statutory C
limit of reservation under the UP Reservation Act, 1994.
Contention of the private respondents
14. Mr. Alok Mishra, learned counsel: Learned counsel
submitted that changing the number of vacancies category-wise is in
violation of the statutory provisions and Rule 15(3) of the Agriculture D
Service Rules, 1993 and also the constitutional mandate was infringed
and by revising the number of posts in the various categories, substantial
number of candidates were illegally deprived of the opportunities to appear
in the interview. It was contended that Office Memorandum dated
12.10.2014 changing the number of vacancies category-wise suffers E
from vice of arbitrariness and the High Court rightly held that the rules
of the game were changed during the process of selection and the High
Court rightly set aside the selection of the appellants directing holding of
interview afresh based on the quantifiable date collected and taking into
account the cadre strength and the actual working strength. Learned
counsel further submitted that since the rules were violated and the F
constitutional mandate was infringed, as held in Union of India and
others v. O. Chakradhar (2002) 3 SCC 146, individual notices were
not required to be sent to the selected candidates and non-issuance of
notice to individual selected candidates will not affect the correctness of
the impugned judgment. G
15. Mr. K. Parameshwar, learned counsel: Learned counsel
submitted that challenging the Office Memorandum dated 12.10.2014
issued by the UP Public Service Commission and also the selection
process and the final selection list, number of writ petitions were filed
and the appellants have challenged the judgment in the lead case in WP H
1092 SUPREME COURT REPORTS [2019] 12 S.C.R.

A (C) No.34196 of 2015 and in the other writ petitions viz. WP(C)
No.38399/2015, WP(C)No.45822/2015, WP(C) No.47894/2015, WP(C)
No.50878/2015 and SPLAD No.283/2016 and the appellants have not
chosen to challenge the judgment passed in number of other writ petitions
remaining unchallenged and operate as res judicata. In support of his
contention, learned counsel placed reliance upon Sri Gangai Vinayagar
B
Temple and Another v. Meenakashi Ammal and Others (2015) 3
SCC 624. Insofar as horizontal reservation, the learned counsel further
submitted that wherever the candidates for horizontal reservation were
not available, they were filled up with the candidates with the vertical
reservation which is not in accordance with law and the consistent view
C taken by the Supreme Court. The learned counsel submitted that
considering number of irregularities in the selection process, the High
Court rightly set aside the selection process subsequent to the stage of
declaration of written examination and the impugned judgment warrants
no interference.
D 16. Mr. Anil Nauriya, learned counsel submitted that the terms
and conditions for the selection were set out in the advertisement and
the rights of the candidates for selection to be considered in accordance
with the rules as they existed on the date of the advertisement and not
by the subsequent events. In support of his contention, the learned
counsel placed reliance upon N.T. Devin Katti and others v. Karnataka
E Public Service Commission and others (1990) 3 SCC 157. The
learned counsel further submitted that by the adjustment of diploma
holders against the “general quota”, the State erred in revising the
requisition of the vacancies in different categories which prejudicially
affect the interest of the candidates who appeared in the examination
F and passed in the written examination and the High Court rightly set
aside the selection process subsequent to the stage of declaration of the
written examination. Reliance was placed upon Government of India
through Secretary and another v. Ravi Prakash Gupta and another
(2010) 7 SCC 626.
G 17. Mr. Dinesh Kumar Tiwary, learned counsel: Drawing our
attention to Uttar Pradesh State Public Service Commission (Regulation
of Procedure and Conduct of Business) Act, 1974, the learned counsel
submitted that the conduct of business by the UP Public Service
Commission shall be strictly in accordance with the provisions and the

H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1093
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

revised Office Memorandum dated 12.10.2014 changing the number of A
vacancies in different categories is unsustainable and the High Court
rightly set aside the same and directed the selection process to be
continued and directed the State to send requisition to the UP Public
Service Commission on the basis of quantifiable data and cadre strength
as well as actual persons working in different categories. Reliance was
B
placed upon K. Manjusree.
18. Upon consideration of the above submissions and the impugned
judgment and other materials on record, the following points arise for
determination:-
(i) Whether the revised requisition dated 20.08.2014 and the office C
memorandum of UP Public Service Commission dated
12.10.2014 is only rectification of wrongful calculation of
category-wise vacancies?
(ii) Whether the revised Office Memorandum dated 12.10.2014
suffers from arbitrariness as contended by the respondents? D
(iii) Whether the office memorandum dated 12.10.2014 revising
the breakup of vacancies would amount to change in the rules
of the game during the process of selection?
(iv) Having had full knowledge of revising the category-wise
vacancies and having consciously participated in the interview, E
whether the unsuccessful candidates-private respondents-
intervenors are estopped from challenging the selection of the
successful candidates?
(v) When the regularization of diploma holders was not under
challenge in the writ petitions filed in the year 2015, whether the F
High Court was right in going into the legality of the regularization
of the diploma holders and recording an adverse finding
regarding the absorption of the diploma holders against the
General quota?
(vi) Whether revised requisition of the number of vacancies G
category-wise has caused prejudice to the General/Unreserved
category candidates as contended by the respondents?
(vii) Whether 906 candidates are entitled to seek for direction for
issuance of appointment orders?
H
1094 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Revised requisition dated 20.08.2014 and Office Memorandum
dated 12.10.2014 notifying revised vacancies in different
categories – in consonance with the provisions of UP Reservation
Act, 1994 and UP Subordinate Agriculture Service Rules, 1993
(UP Service Rules, 1993)
B 19. The posts of Technical Assistant Grade-III are Class-III Posts
which are governed under the Agriculture Service Rules, 1993. The
posts were restructured with effect from 25.10.2007. The pay scale of
the aforesaid posts was fixed as Rs.3200-4900 and the total number of
sanctioned posts of Technical Assistant Grade-III was 10,531. After
restructure of the posts, the details of the vacancies were worked out in
C which it was found that 10,531 posts were sanctioned out of which 5,860
persons were working. On that ground, the total vacancies were
determined as 4,671; after making deduction of 2% as per Government
Order dated 05.03.2002, the total vacant posts were shown as 4,578 and
the requisition was sent to the UP Public Service Commission on
D 03.10.2012. Subsequently, the number of posts were increased by 2,092
out of which, as per Government Order dated 05.03.2002, 2% had been
deducted and vide requisition dated 30.04.2013, a requisition was sent
showing the increased vacant posts as 2,050 out of which total number
of vacancies against the OBC quota was shown as 554. In the earlier
requisition dated 03.10.2012, the total number of vacancies against the
E OBC quota were shown as 12. Thus, after sending the second requisition,
total number of vacancies against the OBC quota were shown as 554 +
12 = 566.
20. The Department of Agriculture to fill up the existing vacancies
of the year 2013 determined the vacancies and sent it to the State
F Government. Accordingly, the State Government sent the requisition to
the UP Public Service Commission showing total number of posts as
6,628 out of which 3,616 posts were shown against the General quota,
2,211 posts shown against the Scheduled Castes, 235 posts reserved for
the Scheduled Tribes and 566 posts were figured out against Other
G Backward Classes and accordingly, UP Public Service Commission
published the advertisement dated 22.10.2013.
21. After the publication of the vacancies, a complaint was filed
before the Backward Classes Commission, UP complaining that instead
of showing actual vacancies of the reserved category of Other Backward
H Classes, 566 posts have been shown in the advertisement. On such
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1095
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

complaint, the Department of Agriculture as well as UP Public Service A
Commission were called upon to reply to the aforesaid complaint. It
was thereafter, the Agriculture Department undertook an exercise and
found that on account of wrongful calculation of the category-wise
vacancy, the earlier requisition was required to be rectified. After
undertaking the exercise as directed by the Authority, it was found that
B
the total number of “General category” candidates was wrongly figured
out and shown as 2,622; while in fact 1,749 employees (979 OBC and
770 Others) who were absorbed on account of having a diploma from
the Government Agriculture School during the years 1981 to 1987, were
also required to be counted against the “General category”.
22. The Government Agriculture School, Bulandshahar, C
Government Agriculture School, Chargawan-Garakhpur and Government
Agriculture School, Jhansi were run by the Agriculture Department. The
schools were providing certificate of two years in Krishi Prasar Diploma
and the persons undertaking aforesaid diploma during 1981 to 1987 were
required to be appointed directly without any selection. However, after D
enforcement of the Agriculture Service Rules, 1993 since the diploma
holder of 1981 to 1987 could not be appointed, the Directorate has sought
guidelines from the State Government vide its letter dated 22.01.1998.
The State Government vide its letter dated 04.06.1998 granted the
relaxation and directed the appointment of Agriculture Diploma Holders
who were 1822 in number, out of which 1749 had joined up to 1998. E
Since at the time of determination of the vacancy, the OBC category
persons appointed on the basis of the Agriculture Diploma Holders
Certificate were also counted against the vacancy in OBC category
while they were not required to be counted against the OBC category,
the wrongful calculation had been arrived at. The earlier requisition F
sent showing only 566 vacancies against the “OBC quota” while in fact
it should have been 2030, as all the diploma holders were appointed
against the “General quota” and they have not been appointed against
the “OBC quota”. According to the department, subsequent requisition
was merely a rectification of the earlier mistake. On the date of
advertisement, the actual vacancies of OBC was 2030 but on account G
of wrongful calculation by the department, it was advertised as 566.
23. It is thus due to the wrongful calculation of OBC quota, the
earlier requisition was sent showing the vacancies against OBC quota
as only 566; while in fact vacant posts against OBC quota should be
H
1096 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 2030. It is in this context, the Department of Agriculture has reworked
the vacancy against various categories and sent the revised requisition
as under:-

Total number of 50% 21% 2% 27%
sanctioned posts General Category Scheduled Caste Scheduled Tribe Other
B Backward
Classes

10559 5280 2217 211 2851
Employees
2713 297 6 780
working - 3796

C Vacant – 6763 2567 1920 205 2071
After 2%
deduction as per
2515 1882 201 2030
Government
Order – 6628

D 24. After taking the opinion of the Personnel Department, the
first respondent vide order dated 20.08.2014 approved the vacancies
for different categories of persons in accordance with the applicable
Agriculture Service Rules and sent the revised requisition as under:-
Advertisement Number Vacancies in Subordinate Agriculture Services,
E Cadre-III (Technical Assistant Group-C)
Government Order No.941/12-4-14- Unreserved SC ST OBC
1992/2014 dt. 20.08.2014
Total vacancies: 6628
2515 1882 201

F 2030

On the basis of the above government order dated 20.08.2014,
the Department of Agriculture vide its letter No. AC/101 dated 20.08.2014
sent the above revised requisition to the UP Public Service Commission.
According to the State, the category-wise vacancy position was changed
G only after a meeting was held of all concerned i.e. representatives of the
Karmik Department as well as the representatives of the Administrative
Department and it was found that a wrongful calculation of category-
wise vacancy had been sent earlier which was likely to result in anomalies
in the total representation of each category in total cadre strength of
Technical Assistant Grade-III in the Agriculture Department. Hence,
H
revised requisition was sent on 20.08.2014 from the Administrative
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1097
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

Department to the Director, Agriculture who in turn was directed to A
communicate the same to the UP Public Service Commission.
25. The result of the written examination published on 15.09.2014
was only based on the above revised requisition. The declaration of
result of the written examination was issued based on the revised
requisition of the posts. The UP Public Service Commission acted on B
the revised requisition of the Government dated 20.08.2014. Before the
candidates were called for interview, Office Memorandum dated
12.10.2014 was issued by the UP Public Service Commission revising
the number of vacancies for different categories. The UP Public Service
Commission has thus not travelled beyond the requisition sent by the
Government. C
26. By the revised requisition, the State endeavoured to achieve
the object of reservation as per Uttar Pradesh Public Services
(Reservation for Scheduled Castes, Scheduled Tribes and Other
Backward Classes) Act, 1994. The original advertisement was for ‘3616’
posts against “Unreserved (UR) quota” and only ‘566’ against “OBC D
quota” which was far less than the requisite percentage for OBC. As
per Section 3(1) of UP Reservation Act, 1994, specific percentage of
vacancies have been reserved for different categories. Section 3 of the
ervices, UP Reservation Act, 1994 reads as under:-
“3. Reservation in favour of Scheduled Castes, Scheduled E
OBC Tribes and Other Backward Classes:-
(1) In public services and posts, there shall be reservation at the
stage of direct recruitment, the following percentage of vacancies
to which recruitments are to be made in accordance with the
2030 roster referred to in sub-section (5), in favour of the persons, F
belonging to Scheduled Castes, Scheduled Tribes and Other
Backward Classes of citizens:-
a. In the case of Scheduled Castes – twenty-one per cent;
b. In the case of Scheduled Tribes – two per cent;
G
c. In the case of Other Backward Classes of citizens –
twenty-seven per cent
Provided that reservation under clause (c) shall not apply to the
category of Other Backward Classes of the citizens specified in
Scheduled-II. H
1098 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Provided further that the reservation of vacancies for all categories
of persons shall not exceed in any year of recruitment fifty per
cent of the total vacancies of that year as also fifty per cent of the
cadre strength of the service to which the recruitment of to be
made.
B (2) If in respect of any year of recruitment any vacancy reserved
for any category of persons under sub-section (1) remains unfilled,
such vacancy shall be carried forward and be filled through special
recruitment in that very year or in succeeding year or years of
recruitment as a separate class of vacancy and such class of
vacancy shall not be considered together with the vacancies of
C the year of recruitment in which it is filled and also for the purpose
of determining the ceiling of fifty per cent reservation of the total
vacancies of the year notwithstanding anything to the contrary
contained in sub-section (1).
……”
D
27. Section 4 of the UP Reservation Act, 1994 imposes responsibility
and powers upon the competent authority for compliance of the Act.
Section 4 reads as under:-
“4. Responsibility and powers for compliance of the Act.-
E (1) The State Government may by notified order, entrust the ap-
pointing authority or any officer or employee with the responsibil-
ity of ensuring the compliance of the provisions of this Act.
(2) The State Government may in the like manner, invest the ap-
pointing authority or officer or employee referred to in sub-sec-
F tion (1) with such powers or authority as may be necessary for
effectively discharging the responsibility entrusted to him under
sub-section (1).
28. Section 5 of the UP Reservation Act, 1994 is the penal
provisions. Section 5 provides that “Any appointing authority or officer
G or employee entrusted with the responsibility under Section 4(1)
who wilfully acts in a manner intended to contravene or defeat the
purposes of the Act, shall, on conviction, be punishable with
imprisonment which may extend to three months or with fine…..”.
As per Section 2(a) of the UP Reservation Act, 1994, “appointing
authority” in relation to public services and posts means the authority
H empowered to make appointment to such services or posts.
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1099
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

29. As pointed out earlier, the post of Technical Assistant Grade- A
III is governed under the Agriculture Services Rules, 1993. As per Rule
15 of Agriculture Service Rules, 1993, the recruitment authority would
determine the number of vacancies to be filled during the year for
Scheduled Castes, Scheduled Tribes and other Backward Class
candidates under Rule 6. Rule 15 reads as under:-
B
15. Determination of vacancies
The Recruitment Authority would determine the number of
vacancies to be filled during the year and would also determine
the number of vacancies for Scheduled Castes, Scheduled Tribes
and other categories candidates under Rule 6. The vacancies for C
direct recruitment, would be informed to the Commission according
to the prevalent rules and orders at that time or would be notified
to the Employment Office.
Rule 6 of the Agriculture Service Rules, 1993 stipulates that
“reservation for Scheduled Castes, Scheduled Tribes and other D
Backward Class candidates would be done according to the orders
of the Government prevalent at the time of the appointment.”
Agriculture Service Rules, 1993 thus clearly stipulate that it is for the
Recruitment Authority to determine the number of vacancies to be filled
during the year and would also determine the number of vacancies for
Scheduled Castes, Scheduled Tribes and other category candidates under E
Rule 6. On noticing that there was wrongful calculation of the category-
wise vacancy, the Recruitment Authority is empowered to rectify the
wrongful calculation and make a revised requisition which is in accordance
with the provisions of UP Reservation Act, 1994 and Agriculture Service
Rules, 1993. F
30. Reiterating the well-settled principle that the percentage of
reservation has to be worked out in relation to number of posts which
form cadre strength, in R.K. Sabharwal and others v. State of Punjab
and others (1995) 2 SCC 745, the Supreme Court held as under:-
“6. The expressions ‘posts’ and ‘vacancies’, often used in the G
executive instructions providing for reservations, are rather
problematical. The word ‘post’ means an appointment, job, office
or employment. A position to which a person is appointed.
‘Vacancy’ means an unoccupied post or office. The plain meaning
of the two expressions make it clear that there must be a ‘post’ in
H
1100 SUPREME COURT REPORTS [2019] 12 S.C.R.

A existence to enable the ‘vacancy’ to occur. The cadre-strength is
always measured by the number of posts comprising the cadre.
Right to be considered for appointment can only be claimed in
respect of a post in a cadre. As a consequence the percentage of
reservation has to be worked out in relation to the number of
posts which form the cadre-strength. The concept of ‘vacancy’
B
has no relevance in operating the percentage of reservation.”
31. It emerges from the materials on record that the total number
of sanctioned posts is 10,559 and the quota of 21% Scheduled Caste has
come to 2,217 but of which 297 persons are working which come to
2.81% in the Scheduled Caste quota. The rest of vacant posts 1,920 are
C about 18.18% and after deduction of 2% as per the Government Order,
the revised requisition for 1,882 posts against the Scheduled Caste quota
has come to 18.18% which was sent. Likewise, against 2% Scheduled
Tribe, total posts carved out were 211 posts out of 10,559 posts and the
working strength of the employees is 6 which comes to 0.05%. Out of
D the rest of the 205 posts which comes to 1.94%, after deduction of 2%
as per government order, 201 posts of Scheduled Castes were sent in
the revised requisition. So far as 27% posts of Other Backward Classes,
the total number of posts are 2,851 out of 10,599 and the working
employees of OBC is 780 which come to 7.38% and the rest of the
2,071 posts come to 19.61%. In the same way, 2,713 employees are
E working against the General quota which comes to 25.69% and rest of
the posts required to complete 50% quota is 2,567 i.e. 24.31%. This can
be well clarified by the following chart:-
Total number of 50% 21% 2% 27%
sanctioned General Category Scheduled Caste Scheduled Tribe Other Backward
posts Classes
F
10559 5280 2217 211 2851

Employees 2713 297 6 780
working – 3796 (25.69%) (2.81%) (0.05%) (7.38%)

G Vacant – 6763 2567 1920 205 2071
(24.31%) (18.18%) (1.94%) (19.61%)

After 2%
deduction as
2515 1882 201 2030
per
(23.81%) (17.82%) (1.90%) (19.22%)
Government
Order – 6628
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1101
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

From the above tabular column, it is seen that the revised requisition A
is to ensure compliance of the reservation in terms of Section 3 of the
UP Reservation Act, 1994. This aspect has not been properly appreciated
by the High Court.
32. Revising the number of vacancies in OBC category as 2030
does not violate the right of the General category candidates because B
the State Legislature has enacted the Reservation Act No.4 of 1994
providing for reservation, keeping in mind the parameters of Article 16(4)
of the Constitution of India. By revising requisition, the State has
endeavoured to achieve the object of the reservation by working out the
vacancy for selection of the posts in question without causing any
prejudice to the General category candidates. The revised requisition so C
made was within the purview of the competency of the State in order to
achieve the object of the UP Reservation Act, 1994. Moreover, as rightly
contended by the appellants, the total number of vacancies have not
been changed or modified.
33. The appropriate authority has taken the cadre strength of the D
Technical Assistant Grade-III as a unit in the operation of the roster in
the year to ascertain whether the given class or group is adequately
represented in service. The revised requisition of the Department of
Agriculture dated 20.08.2014 was well within the purview of the
competence. Moreover, the total number of vacancies i.e. 6628 have
E
not been changed or modified.
34. As pointed out earlier, the category-wise vacancy position
was changed after a meeting of all concerned was held i.e. representatives
of the Karmik Department as well as of representatives of the
Administrative Department and it was found that a wrong calculation of
category-wise vacancy had been sent earlier. If the original requisition F
dated 22.10.2013 was to be retained, it would have resulted in anomalies
of the category-wise posts thereby contravening the provisions of the
UP Reservation Act, 1994. Hence, the revised requisition was sent on
20.08.2014 from the Administrative Department to the Director,
Agriculture who in turn communicated the same to the UP Public Service G
Commission. By the revised requisition of vacancies for various
categories, there is no violation of any rules; on the other hand, it is only
to rectify the calculation of vacancies in different categories and to
comply with the requisite quota of reservation in different categories as
per UP Reservation Act, 1994. This aspect was not properly appreciated
by the High Court. H
1102 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 35. In para (68) of the impugned judgment, though the High Court
held that the Government has to apply the cadre strength as a unit in the
operation of the roster in order to ascertain whether a given group or
category is adequately represented. The revised requisition dated
20.08.2014 and the Office Memorandum dated 12.10.2014 of the UP
Public Service Commission was only to ensure the compliance of the
B
provisions of the UP Reservation Act, 1994 and to ensure that the
category-wise reservation is not violated which was not kept in view by
the High Court.
Absorption of the Diploma Holders
C 36. In para (64) of the judgment, the High Court observed that the
entire maneuvering has taken place in the garb of diploma holders
wherein, 1749 diploma holders in the department were adjusted/
regularized in the year 1998 and there was no occasion for putting all the
diploma holders against open category and under the garb of adjustment
of vacancies, the entire scenario has been changed and thus, the entire
D vacancies against General category have been usurped. The High Court
held that the diploma holders ought not to have been absorbed against
the General category so as to alter the advertised number of posts under
the General category.
37. As pointed out earlier, the earlier requisition was sent showing
E only 566 vacancies against the OBC quota, while in fact, it should have
been 2030, as all the diploma holders were appointed against the General
quota and they have not been appointed against the OBC quota. In this
context, we may usefully refer to the affidavit filed by the Deputy Director,
Agriculture (Training) before the High Court on 17.03.2015 which reads
F as under:-
“…..the Government Agriculture School-Bulandshahar,
Government Agriculture School-Chargawan-Gorakhpur and
Government Agriculture School-Jhansi were running by the
Agriculture Department. The schools were providing certificate
G of two years in Krishi Prasar Diploma and the persons undertaking
aforesaid diploma during 1981 to 1987 were required to be
appointed directly without any selection. However, after
enforcement of the Service Rules 1993 since the diploma holder
of 1981 to 1987 could not be appointed, the Directorate has sought

H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1103
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

guidelines from the State Government vide its letter dated 22/1/ A
1998. The State Government vide its letter dated 4/6/1998 granted
the relaxation and directed for appointment of Agriculture Diploma
Holders who were 1822 in number, out of which 1749 were joined
upto 1998. Since at the time of determination of the vacancy, the
OBC person appointed on the basis of the Agriculture Diploma
B
holders certificate were also counted against the vacancy in OBC
category while they were not required to be counted against the
OBC category, the wrongful calculation had been arrived. The
earlier requisition was sent and showing only 566 vacancies against
the OBC quota while in fact it should be 2030, as all the diploma
holders were appointed against the general quota and they have C
not been appointed against the OBC quota. Subsequent requisition
was merely a rectification of the earlier mistake. On the date of
advertisement, the actual post of OBC was lying vacant 2030
posts but on account of wrongful calculation it was advertised as
566…..”.
D
38. At the time of absorption of the diploma holders in the year
1998, there was no provision for reservation for Backward Class category
in the concerned department; only by U.P. Reservation (Amendment)
Act, 2002, the reservation was extended to the concerned department
and therefore, the appointees/diploma holders have to be considered
only against the “general quota” candidates. As seen from the above E
affidavit filed by the Deputy Director, Agriculture (Training), the diploma
holders were not required to be counted against OBC quota; by a wrongful
calculation, they have been adjusted against the OBC quota which is not
permissible in law as reservation cannot be granted retrospectively. By
the revised requisition, the Government sought to rectify this mistake F
which resulted in alteration in number of vacancies available against
certain categories. Such rectification of mistake by Government cannot
be faulted nor can this be a ground for recalling the advertisement in
question and issuing a fresh one. The High Court, in our view, should
have adopted a pragmatic approach of the matter in hand and considered
the fact that the variation in number of vacancies against “General quota” G
was only because of the absorption of the diploma holders against the
“General quota” and rectifying the mistake of adjustment against “OBC
vacancies”.

H
1104 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Office Memorandum dated 12.10.2014 revising the vacancies
category-wise – whether amounts to changing the rules of the
game after the commencement of the selection
39. The High Court held that after the advertisement dated
22.10.2013, changing the break-up of vacancies would amount to change
B of the rules of the game after the commencement of the selection process
which is not permissible. The High Court placed reliance upon Madan
Mohan Sharma and another v. State of Rajasthan and others(2008)
3 SCC 724. The learned counsel for the private respondents submitted
that changing the vacancies in different categories is illegal and the same
amounts to changing the rules of the game in the middle of the selection
C process. In support of their contention, the learned counsel appearing
for the respondents placed reliance upon Hemani Malhotra and K.
Manjusree.
40. In K. Manjusree, the selection to ten posts of District and
Sessions Judge (Grade-II) in the Andhra Pradesh Higher Judicial Service
D in pursuance of the advertisement dated 28.05.2004, was the subject
matter of the appeal. The selection was on the basis of written
examination followed by an interview. There were no minimum cut-off
marks prescribed for clearing the interview. After the selection process
was completed and the select list was prepared by the interview committee
E which was approved by the Administrative Committee, when the matter
was placed before the Full Court, the Full Court authorized the Chief
Justice to constitute a committee of judges for preparing the list of
candidates to be recommended for appointment of District and Sessions
Judge (Grade-II). Accordingly, the Chief Justice appointed a sub-
committee of two judges which prepared a fresh list of candidates for
F appointment prescribing minimum qualifying marks for the interview.
The sub-committee was of the view that apart from applying the minimum
marks for the written examination, the cut-off marks/percentage should
be applied for interview marks also and those who failed to secure such
minimum marks in the interview, should be considered as having failed.
G The sub-committee thus prepared a fresh merit list. In those facts and
circumstances of the case, the Supreme Court set aside the select list by
holding that the introduction of the requirement of cut-off marks for the
interview after the entire selection process was completed amounted to
changing the rules of the game after the selection process was almost
complete which is impermissible.
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1105
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

41. In Hemani Malhotra, the result of the written examination of A
the Delhi Higher Judicial Service was not announced by the High Court
of Delhi, and individual communication was sent to the petitioners therein,
informing them of their selection for the interview. Five candidates were
called for interview on various dates and were informed of its
postponement i.e. the interview first scheduled for 20-09-2006 was later
B
deferred to 29-11-2006, 07-12-2006, 23-01-2007, 05-02-2007 and was
finally conducted on 27-02-2007. Meanwhile on 13-12-2006, by a Full
Court Resolution, minimum qualifying marks for the viva voce was
prescribed (55% for general candidates and 50% for SC and ST
candidates). In such facts and circumstances, prescribing minimum marks
for the interview was struck down as changing the rules of the game C
during selection process. Initially, there was prescription of minimum
marks for written test only and not for viva voce. The minimum marks
for viva voce were prescribed after written test was over and it was
held that this was not permissible.
42. The case in hand is distinguishable from those cases where D
the mode of selection was altered by fixing the cut-off marks after the
selection process had completed/commenced; whereas in the present
case only wrongful calculation in the number of vacancies in different
categories had been corrected in order to satisfy the percentage of
reservation against various categories as per the provisions of UP
Reservation Act, 1994. Such correction cannot be said to changing the E
rules or basis of selection. The eligibility criteria was not changed.
43. It is also pertinent to note that the proposition of law that rules
of game cannot be changed after the selection has been commenced
itself has been referred for reconsideration by a larger Bench in Tej
Prakash Pathak and others v. Rajasthan High Court and others F
(2013) 4 SCC 540. While referring the matter to a larger Bench, in
Tej Prakash, the Supreme Court explained the ambit of the expression
changing the rules of the game as under:-
“11. Those various cases deal with situations where the State
sought to alter (1) the eligibility criteria of the candidates seeking G
employment, or (2) the method and manner of making the selection
of the suitable candidates. The latter could be termed as the
procedure adopted for the selection, such as, prescribing minimum
cut-off marks to be secured by the candidates either in the written
examination or viva voce as was done in K. Manjusree v. State H
1106 SUPREME COURT REPORTS [2019] 12 S.C.R.

A of A.P. (2008) 3 SCC 512 or the present case or calling upon the
candidates to undergo some test relevant to the nature of the
employment (such as driving test as was in Maharashtra SRTC
v. Rajendra Bhimrao Mandve (2001) 10 SCC 51).
15. No doubt it is a salutary principle not to permit the State or its
B instrumentalities to tinker with the “rules of the game” insofar as
the prescription of eligibility criteria is concerned as was done in
C. Channabasavaih v. State of Mysore AIR 1965 SC 1293, etc.
in order to avoid manipulation of the recruitment process and its
results. Whether such a principle should be applied in the context
of the “rules of the game” stipulating the procedure for selection
C more particularly when the change sought is to impose a more
rigorous scrutiny for selection requires an authoritative
pronouncement of a larger Bench of this Court. We, therefore,
order that the matter be placed before the Hon’ble Chief Justice
of India for appropriate orders in this regard.”
D 44. As discussed earlier, the case in hand is clearly distinguishable
from K. Manjusree (supra) and Hemani Malhotra (supra). The
diploma holders were wrongly counted against the vacancies in OBC
category; while they could not have been counted against OBC category
and while doing so, a wrongful calculation had been arrived and the
E same has to be corrected by counting the diploma holders against the
general category.
45. It is to be pointed out that instruction No.7 in the advertisement
dated 22.10.2013 stipulates that the number of vacancies may increase
or decrease. Agriculture Service Rules, 1993 clearly stipulate that it is
F the prerogative of the government to determine the number of vacancies
in accordance with the rules. As per Rule 15 of the Agriculture Service
Rules, 1993, “the recruitment authority would determine the number
of vacancies for Scheduled Castes, Scheduled Tribes and other
category candidates under Rule 6.” Rule 6 stipulates that “reservation
for Scheduled Castes, Scheduled Tribes and other Backward Class
G candidates would be done according to the orders of the government
prevalent at the time of appointment.”
46. Rule 15(3) of the Agriculture Service Rules, 1993 provides
for calling the successful candidates, keeping in mind the vacancy of the
reserved categories required under Rule 6 after the declaration of result
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1107
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

of written examination and for the adequate representation of each A
category, three times of candidates qua vacancies are required to be
invited for the interview. Thus, on the total advertised number of seats
for open category i.e. 3616 x 3 = 10848 candidates were eligible under
Rule 15(3) of the Agriculture Service Rules, 1993 to be called for
interview.
B
47. In the impugned judgment, the High Court has observed that
by decreasing the number of seats of General category, number of
candidates of General category were illegally deprived from appearing
in the interview. The High Court has also observed that by increasing
the number of seats of OBC category, more candidates have been called
for interview, even though they were not eligible as per advertisement C
dated 22.10.2013 and thus, changing the number of vacancies for each
category, has prejudiced the number of candidates who are to be called
for interview. The relevant findings of the High Court is as under:-
“……Thus, on the total advertised number of seats for open
category i.e. 3616 x 3 = 10848 candidates were eligible under D
Rule 15(3) for interview test. However, by decreasing the number
of seats vide letter dated 20.08.2014 i.e. 2515 x 3 = 7545 candidates
were invited, thus, 10848 – 7545 = 3303 candidates were illegally
deprived to appear in the interview test. However, in the Other
Backward Class category, only 566 vacancies were advertised E
against which only 1698 candidates would be eligible to appear in
the interview. However, by illegally increasing the number of
vacancies to 2030, 6090 candidates had been invited for the
interview. Thus, in the Other Backward Class category, 6090 –
1698 = 4392 more candidates were called for the interview, even
though they were not eligible as per advertisement dated F
22.10.2013. Thus, by changing the number of vacancies for
different categories amounts to violation of Rule 15(3) of Rules,
1993 during the pendency of the advertisement and thus, depriving
of 3303 general category candidates, even to appear in the
interview and allowing 4392 more candidates of OBC in the zone G
of consideration for the selection, amounts to changing the rule of
the game during the process of selection……”.
48. By careful consideration, we are unable to countenance the
above view taken by the High Court that the change in number of
vacancies has illegally deprived 3303 candidates in General category H
1108 SUPREME COURT REPORTS [2019] 12 S.C.R.

A from appearing in the interview and had benefitted the OBC category
candidates. Be it noted that the writ petitions were filed by the candidates
who appeared for interview and were unsuccessful. It is not known that
what were the marks secured by the writ petitioners/candidates in the
written examination and what were their position in the merit list. The
writ petitioners who are unsuccessful candidates have not demonstrated
B
as to how they were prejudicially affected by the change in number of
vacancies against “General category” and “OBC category”. The High
Court was not right in making a generalised observation that decrease in
the number of vacancies against “General category” has illegally deprived
3303 candidates from appearing in the interview.
C 49. Notification by the UP Public Service Commission dated
12.10.2014 is based upon the revised requisition of the vacancies by the
order of the Administrative Department dated 20.08.2014. In our view,
this would not amount to changing the rules of the game after the selection
process had commenced nor it had affected the selection process by
D changing the eligibility criteria.
50. 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
E 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
F selection process.
51. 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 and Others v. State of J&K and
G Others (1995) 3 SCC 486, it was held as under:-
“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
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1109
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

selected at the said oral interview. Only because they did not find A
themselves to have emerged successful as a result of their
combined performance both 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
B
cannot turn round and subsequently contend that the process of
interview was unfair or the Selection Committee was not properly
constituted. …..”
52. In K.H. Siraj v. High Court of Kerala and Others (2006) 6
SCC 395, it was held as under:-
C
“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……..”.
D
53. In Union of India and Others v. S. Vinodh Kumar and
Others (2007) 8 SCC 100, it was held as under:-
“19. In Chandra Prakash Tiwari v. Shakuntala Shukla(2002)
6 SCC 127, it was further observed:-
“34. There is thus no doubt that while question of any estoppel by E
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 F
there was some lacuna in the process.”
Same principle was reiterated in Sadananda Halo and Others
v. Momtaz Ali Sheikh and Others (2008) 4 SCC 619 wherein, it was
held as under:-
“59. It is also a settled position that the unsuccessful candidates G
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 ……The
Court also referred to the judgment in Om Prakash Shukla v.
H
1110 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Akhilesh Kumar Shukla 1986 Supp SCC 285, where it has been
held specifically that when a candidate appears in the examination
without protest and subsequently is found to be not successful in
the examination, the question of entertaining the petition challenging
such examination would not arise……..”
B 54. Before the declaration of the result of the written examination
on 15.09.2014, the State Government by its Government order dated
20.08.2014 revised the requisition thereby revising the number of
vacancies in different categories. UP Public Service Commission issued
Office Memorandum dated 12.10.2014 specifically mentioning the
number of vacancies to be filled up in various categories in accordance
C with the requisition sent by the State Government. The said Office
Memorandum dated 12.10.2014 published by UP Public Service
Commission reads as under:-
“UPPSC
INTERVIEW PROGRAMME
D Month October/November/December, 2014 (24)

OFFICE MEMORA+DUM
98 Post Subordinate Agricultural Service Class III
(Provisional Asstt. Group C) Agricultural Deptt.
U.P.
E Reservation
October – 27, 28, 29, 30
November – 05, 07, 10, 11, 12, 13, 14,
2515 posts – Non-reserved 15, 17, 18, 19, 20, 21, 22, 25, 26, 27,
1882 posts – SC 28, 29
201 posts – ST
December – 01, 02, 03, 04, 05, 06, 08,
2030 posts – OBC
09, 10, 11, 12, 15, 16, 17, 18, 19, 20,
22, 23, 24, 2014
F Pay Scale Rs.5200-20200/-
Grade Pay Rs.2400/- Before 10.00 a.m.

Advertisement No.A-5/E-1/2013
Last Date: 21.11.2013

Dt. 12.10.2014".
G It is thus clear that the candidates who appeared in the interview
were well aware about the modification/revision in number of vacancies
of Technical Assistants in different categories. The private respondents/
intervening applicants have appeared in the interview with their eyes
wide open regarding the modified vacancies to be filled up in various
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1111
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

categories of the posts. Having appeared in the interview without any A
demur or protest, it is not open to the candidates to challenge the selection
process on the ground that there was modification in the number of
vacancies in different categories and they are estopped by the principle
of estoppel from challenging the same.
55. The private respondents knew that by the revised notification B
dated 12.10.2014, the number of vacancies of different categories have
been changed and knowing the same, they participated in the interview
and have taken a chance and opportunity thereon without any protest.
Having participated in the interview and having failed in the final selection,
it is not open to the private respondents to turn around and challenge the
revised notification dated 12.10.2014 and the revised requisition of the C
number of vacancies in different categories. Having regard to the
consistent view taken by the Supreme Court, the High Court should not
have granted any relief to the private respondents/intervenors.
Unfilled vacancies of Horizontal Reservation filled by candidates
of vertical reservation D

56. Contention of the private respondents is that as per the statutory
requirement, the horizontal reserved vacancies were unfilled and those
unfilled vacancies of horizontal category were filled by vertical reservation
candidates/other category candidates, which is in violation of the statutory
provisions vitiating the selection process. On behalf of the UP Public E
Service Commission, Mr. Shrish Kumar Misra, learned counsel has
furnished the details as to the number of vacancies reserved for horizontal
category and the number of candidates found suitable and placed in the
respective categories. The said details are as under:-
F
Category +o. of Vacancies +o. of Selected
Candidates
Women 1325 156
Dependents of Freedom Fighters 132 45
Ex-Servicemen 330 NIL
G
Partially Blind 84 84
Partially Deaf 84 57
One-Arm 42 42
One-Leg 42 42

H
1112 SUPREME COURT REPORTS [2019] 12 S.C.R.

A On behalf of UP Public Service Commission, it was submitted
that one of the policies of the State Government regarding horizontal
reservation is that, if the suitable candidates for filling the vacancies
reserved for such posts of horizontal reservation are not available and
the same are not carried forward; they are filled up by other suitable
candidates from amongst the candidates belonging to vertically reserved
B
categories according to their merit. It was submitted that unfilled horizontal
reservation vacancies were thus filled up by suitable candidates of
respective vertical categories according to their merit which is as per
the policy of the government. The High Court was not right in finding
fault with the filling up of vacancies reserved for horizontal reservation
C with other candidates of respective vertical reservation.
Plea of res judicata
57. The respondents have sought to invoke the principles of res
judicata by contending that the common judgment dated 10.02.2017
passed by the High Court involved eighty-eight petitions which were
D allowed with the direction specified in para (75) of the impugned
judgment. Out of twenty-one appeals filed before this Court, the judgment
of the High Court passed in six writ petitions only viz. WP(C) No.38399/
2015, WP(C) No.45822/2015, WP(C) No.47894/2015, WP(C) No.50878/
2015 and SPLAD No.283/2016 has been challenged; other matters have
E not been challenged either by the State or by the appellants. Mr. K.
Parameshwar, learned counsel has contended that when the appellants
have not challenged the common judgment rendered in all the eighty-
eight writ petitions and in the present appeals, only the judgment rendered
in Writ-C No.34196 of 2015 and few other writ petitions are challenged,
the judgment rendered in other writ petitions having not been challenged,
F have attained finality and thus, operate as res judicata. In support of his
contention, the learned counsel has placed reliance upon Sri Gangai
Vinayagar Temple wherein, the Supreme Court held that when the
common judgment was passed in two or more suits and the judgment
and decree passed in two or more of the suits have not been challenged,
G the decree not assailed there upon, meta morphoses into the character
of a “former suit” and the same operates as res judicata. It was
therefore, contended that in the instant proceedings, the principle of res
judicata would arise since the appellants have not chosen to challenge
the common judgment rendered in number of other writ petitions.

H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1113
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

58. The above contention does not merit acceptance. In Sri Gangai A
Vinayagar Temple, three separate decrees were passed in OS No.5 of
1978 (a suit for injunction simpliciter); OS No.6 of 1978 (monetary part
of the suit claim); and OS No.7 of 1978 (monetary part of the suit claim
and also the issue of ownership). The tenants thereon challenged only
the decree passed in respect of OS No.6 of 1978; but have not challenged
B
the decree passed in OS No.5 of 1978 and OS No.7 of 1978. It was in
that context, the Supreme Court held that non-challenge to two of the
decrees would amount to res judicata. In Sri Gangai Vinayagar Temple,
considering the facts and circumstances of the case and non-challenge
to the decree passed in OS No.6 of 1978 and OS No.7 of 1978, the
Supreme Court took the view that having failed to file appeal against the C
decree in OS No.5 of 1978 and OS No.7 of 1978, the cause of the
tenants-respondents thereon was permanently sealed and foreclosed
since res judicata applied against them.
59. It is pertinent to note that in Sri Gangai Vinayagar Temple,
observing that mere filing of a single appeal leads to the entire dispute D
becoming sub judice once again, the Supreme Court in para (27) held
as under:-
“27. Procedural norms, technicalities and processual law evolve
after years of empirical experience, and to ignore them or give
them short shrift inevitably defeats justice. Where a common E
judgment has been delivered in cases in which consolidation orders
have specifically been passed, we think it irresistible that the filing
of a single appeal leads to the entire dispute becoming sub judice
once again. ….” [underlining added]
60. In the present case, before the High Court, the contentions F
raised were the same and common arguments were advanced. The
High Court dealt with the batch of writ petitions and disposed all of them
by common judgment. Since it is a common judgment with common
reasonings, the present batch of appeals before us would not result in
any inconsistent decree or order as all of them arise out of the common
judgment containing common operative portion of the judgment. G
61. Considering the above contention in the light of the consistent
judicial pronouncements of this Court, the above submission is liable to
be rejected. In M/s Shenoy and Co., Represented by its partner Bele
Srinivasa Rao Street, Bangalore and Others v. Commercial Tax
H
1114 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Officer, Circle II, Bangalore and Others (1985) 2 SCC 512, a number
of writ petitions were allowed by the High Court. However, the State
chose to file appeal only in one case which came to be allowed by the
Supreme Court in the said case. In that fact situation, this Court took the
view that the decision of this Court was binding on all the writ petitioners
before the High Court even though they were not the respondents in the
B
appeal before the Supreme Court. In M/s Shenoy and Co., it was held
as under:-
“22. Though a large number of writ petitions were filed challenging
the Act, all those writ petitions were grouped together, heard
together and were disposed of by the High Court by a common
C judgment. No petitioner advanced any contention peculiar or
individual to his petition, not common to others. To be precise, the
dispute in the cause or controversy between the State and each
petitioner had no personal or individual element in it or anything
personal or peculiar to each petitioner. The challenge to the
D constitutional validity of 1979 Act proceeded on identical grounds
common to all petitioners. This challenge was accepted by the
High Court by a common judgment and it was this common
judgment that was the subject-matter of appeal before this Court
in State of Karnataka v. Hansa Corporation case (1980) 4
SCC 697. When the Supreme Court repelled the challenge and
E held the Act constitutionally valid, it in terms disposed of not the
appeal in Hansa Corporation case alone, but petitions in which
the High Court issued mandamus on the non-existent ground that
the 1979 Act was constitutionally invalid. It is, therefore, idle to
contend that the law laid down by this Court in that judgment
F would bind only the Hansa Corporation and not the other petitioners
against whom the State of Karnataka had not filed any appeal. To
do so is to ignore the binding nature of a judgment of this Court
under Article 141 of the Constitution.
………
G 26. …… The judgment of this Court in Hansa Corporation case
is binding on all concerned whether they were parties to the
judgment or not. We would like to make it clear that there is no
inconsistency in the finding of this Court in Joginder Singh case
AIR 1963 SC 913 and Makhanlal Waza case (1971) 1 SCC
H 749. The ratio is the same and the appellants cannot take
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1115
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

advantage of certain observations made by this Court in Joginder A
Singh case for the reasons indicated above.”
62. Reiterating the above principle, in Director of Settlements,
A.P. and Others v. M.R. Apparao and Another (2002) 4 SCC 638, it
was held as under:-
“7. So far as the first question is concerned, Article 141 of the B
Constitution unequivocally indicates that the law declared by the
Supreme Court shall be binding on all courts within the territory of
India. The aforesaid Article empowers the Supreme Court to
declare the law. It is, therefore, an essential function of the Court
to interpret a legislation. The statements of the Court on matters C
other than law like facts may have no binding force as the facts
of two cases may not be similar. But what is binding is the ratio of
the decision and not any finding of facts. It is the principle found
out upon a reading of a judgment as a whole, in the light of the
questions before the Court that forms the ratio and not any
particular word or sentence….. A judgment of the Court has to be D
read in the context of questions which arose for consideration in
the case in which the judgment was delivered…… The law which
will be binding under Article 141 would, therefore, extend to all
observations of points raised and decided by the Court in a given
case……”. [underlining added] E
After referring to the above judgments, the same principle was
reiterated in Fida Hussain and others v. Moradabad Development
Authority and Another(2011) 12 SCC 615.
63. Before the High Court in several writ petitions, unsuccessful
candidates challenged the revised notification dated 12.10.2014 and also F
the result dated 21.05.2015 published on 22.05.2015. In all the writ
petitions, some contentions were raised and the writ petitions were
disposed of by the common judgment. Thus, the contentious issues raised
by the parties stood determined on the same set of facts and on the
same reasonings. There is no merit in the contention that the judgment G
passed by this Court would bind only the parties in Writ-C No.34196 of
2015 and that the other judgments passed by the High Court would stand
and operate as res judicata. As held in M/s Shenoy and Co. and other
judgments, to do so is to ignore the binding nature of a judgment of this
Court under Article 141 of the Constitution of India.
H
1116 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Non-impleading of successful candidates in the writ petition
64. On behalf of the appellants, repeated arguments were advanced
that the non-impleadment of successful parties will affect the right of
the selected candidates who have been selected and given appointments.
In this regard, the High Court relied upon Union of India and Others v.
B O. Chakradhar(2002) 3 SCC 146 to hold that it is not necessary to
implead all the successful candidates in the writ petition and therefore,
non-impleadment of the successful candidates would not affect the
maintainability of the writ petition. The learned Senior counsel appearing
for the appellants submitted that in O. Chakradhar, the entire selection
was vitiated due to misconduct of the selection and in the present case,
C there is no such misconduct, fraud or any such other factor which would
vitiate the entire selection. It was submitted that the High Court itself
has upheld the result of the written examination while finding fault with
the further selection only because of the change in the number of
vacancies advertised for each category.
D 65. When the selection of successful candidates is challenged,
depending upon the facts and circumstances of the case, the successful
candidates ought to be put on notice about the filing of writ petition by
impleading them by issuance of notice in accordance with law vide
Poonam v. State of Uttar Pradesh and others(2016) 2 SCC 779. In
E the present case, we are not inclined to go into this question in view of
the order passed by the High Court dated 04.06.2015. In WP-C No.34196/
2015, the High Court asked the writ petitioners/private respondents lawyer
to implead the incumbents as parties who have been selected for the
post in question. Before the High Court, Mr. Ajay Kumar, learned counsel
representing the UP Public Service Commission submitted that he would
F supply at least names of ten successful candidates along with the details
and by the order of the court, the counsel appearing for the writ petitioners
were directed to serve notice upon those ten candidates. In such facts
and circumstances, we are not inclined to go into this question as to
impleading/non-impleading of all the successful candidates in the writ
G petition.
66. Re: Contention – Appointment letters not issued to 906
candidates and plea to exercise power under Article 142 of the
Constitution of India: After the interview was completed, the UP
Public Service Commission has selected 6599 candidates and the
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1117
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

category-wise details of the candidates so recommended by the A
Commission are as under:-

Total Vacancies General Scheduled Castes Scheduled OBC
Tribes

B
6599 2488 1881 + 176 25 2029
Because of non-availability
of ST Candidates + 2057

67. The UP Public Service Commission has withheld the result of
29 candidates. The recommendation so made by the UP Public Service
C
Commission was in excess of the permissible percentage of reservation
as per UP Reservation Act, 1994. In fact, this was one of the grounds
of challenge in the writ petition to assail the select list. In the counter
filed by the Principal Secretary, Personnel, Government of UP, it is stated
that change in the category-wise vacancies was further scrutinised in
terms of Uttar Pradesh Public Services (Reservation for Scheduled D
Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. It
was found that a harmonious construction of its various sections was
needed to be taken. In the counter affidavit filed by the Principal
Secretary, Personnel, it is stated that the total of 6628 vacancies was
exceeding the demarcated percentage and the relevant portion of the
E
said affidavit reads as under:-
“Hence, a further revision in category-wise vacancy position was
made and subject to the orders of the Hon’ble High Court, the
total 6628 vacancies have been sub-divided based on the
reservation percentage as the result which was declared by
F
UPPSC was exceeding the demarcated percentage in the following
manner:

Available posts General Scheduled Scheduled OBC
after 2% reduction (50%) Castes Tribes (27%) G
(21%) (2%)
6628 3316 1391 132 1789

H
1118 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Thereafter, the application of horizontal reservation for dependents
of Freedom Fighters, Ex-Servicemen, Disabled persons and Women was
proposed as follows:

Dependent of Women Ex-Servicemen Disabled
B Freedom Fighters Persons
132 1325 331 252

68. Writ Petition No.62112/2015 was filed by few of the successful
candidates for issuance of appointment letter and the High Court vide
C its order dated 15.12.2015 directed the official respondents to issue
appointment order. The High Court further clarified that any such
appointment made as well as the select list shall abide by any order
which may be passed by the Division Bench. Pursuant to the aforesaid
order, the Chief Secretary, Government of UP vide its letter No.1161/
D 12-4-15-1729/2012 dated 22.12.2015 gave directions to the Department
that appointment orders be issued to the selected candidates and that
the appointment should abide by the final decision of the court.
Accordingly, the appointment orders were issued to the selected
candidates on 30.01.2016 as under:-

E Position Unreserved Scheduled Scheduled OBC Total
Castes Tribes

Appointment order
issued by
Agriculture 2478 1385 22 1784 5669
Department
F Documents withheld
by UPPSC 10 06 03 05 24

Total 2488 1391 25 1789 5693
Number of
candidates whose
appointment letter --- 490 176 240 906

G were not issued

The appointments were made subject to the outcome of the writ
petition. Thus, total of 5669 candidates were issued appointment orders;
the appointment orders were withheld for 24 candidates as the documents
were withheld by UP Public Service Commission.
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1119
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

69. Mr. Mehul M. Gupta, learned counsel submitted that even A
though UP Public Service Commission has recommended 6599
candidates on the basis of the vacancies available, 906 candidates were
left out and were not issued appointment orders and prayed for direction
d that the 906 candidates be issued appointment orders. It is pertinent to
note that these 906 candidates were ranked lower in the merit list than
B
the last selected candidate in their respective category under the
reservation limit as identified by the Personnel Department, therefore
appointment orders were not issued to them. This cannot be said to be
arbitrariness or discrimination as selection of candidates was on the basis
of the merit list. Further, the revised requisition dated 20.08.2014, on the
basis of which the impugned office memorandum was issued itself was C
a case of excessive requisition, that is, beyond the permissible limits set
out by the UP Reservation Act, 1994. As a result of this excessive
requisition, 906 extra candidates recommended could not be issued
appointment orders after the revision.
70. As pointed out earlier, the revised requisition dated 20.08.2014 D
and the revised notification of the UP Public Service Commission itself
were in excess of the permissible limits of reservation as per UP
Reservation Act, 1994. We cannot pass direction to accommodate the
surplus candidates as that would be in excess of the permissible limit as
prescribed by the Act and would be in violation of prescribed limits of
reservation as per the statutory provisions of UP Reservation Act, 1994. E
In exercise of power under Article 142 of the Constitution of India, if we
are to issue direction to appoint 906 candidates, it will be crossing the
limits of 50% reservation which would be violation of the constitutional
provisions and the UP Reservation Act, 1994. Even assuming that the
respondent State was not diligent in carrying out the proper quantifiable F
data of existing working strength in different categories and ascertaining
the vacancies position under different categories, it needs no reiteration
that a wrong cannot be corrected by committing another wrong.
71. It is fairly well-settled that the selected candidates do not
have any indefeasible right to be appointed. As held in State of Bihar G
and Others v. Amrendra Kumar Mishra (2006) 12 SCC 561, merely
because the names of candidates were included in the provisional select
list, they do not acquire any indefeasible right to be appointed. Merely
because UP Public Service Commission has recommended the names

H
1120 SUPREME COURT REPORTS [2019] 12 S.C.R.

A of 906 candidates, they do not acquire any indefeasible right for being
appointed.
72. In the counter affidavit filed by the State of U.P., it is stated
that the candidates who were selected but not issued appointment letter
filed a Writ Petition No.6198 of 2016 and the High Court vide order
B dated 02.03.2016 has directed the State to issue appointment letter in
favour of the petitioners thereon. On request from the Agricultural
Department, the Government after taking the opinion of Chief Standing
Counsel has filed the Special Appeal before the Division Bench
challenging the order dated 02.03.2016. The said Special Appeal was
tagged with the Writ-C No.34196 of 2015. Since in Writ-C No.34196 of
C 2015, the High Court quashed the revised requisition dated 12.10.2014
and the result and quashed the entire selection process subsequent to
the declaration of the written examination, consequently the Special Appeal
came to be dismissed.
73. So far as the present vacant position in the counter affidavit
D filed by the State, it is stated that there are total vacancies of 4838 and
the next selection process for selecting 2050 candidates has been sent.
The relevant portion of the counter affidavit filed by the State of U.P.
before this Court reads as under:-
“…….It is pertinent to mention that the Department currently
E has a total present vacancy of 4838, and has accordingly sent a
requisition letter to the Subordinate Services Selection Commission
for selecting 2059 candidates. So, effectively as of today 2779
vacancies have still not been requisitioned keeping in mind 959
(906+53) posts under the consideration on which appointment order
F were not issued.
A break-up of the current requisition of above mentioned 2059
vacancies is as follows:
No. of vacancies General SC/ST OBC
requisitioned

G 2059 1031 473 555

After filing the aforesaid vacant posts, the vacancies of the said post as per cadre strength
is as follows:

2779 1761 534 484
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1121
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

74. Mr. Mehul Gupta, learned counsel on behalf of some of the A
appellants has prayed that power under Article 142 of the Constitution
of India be exercised for extending the benefit of a beneficial provision
to overcome injustice caused to 906 candidates who were not issued the
appointment orders. It was submitted that the technical flaw in the revised
requisition was in excess of the prescribed limit of reservation being in
B
excess of the permissible limits under the UP Reservation Act, 1994 and
the same can be rectified by exercising power under Article 142 of the
Constitution of India. Learned counsel further submitted that 906
candidates in three different categories i.e. SC, ST and OBCs have
successfully completed the written examination and the interview and
these successful candidates have nothing to do with these technical flaws C
and therefore, prayed that in order to do complete justice, the power
under Article 142 of the Constitution of India be exercised. In support of
his contention, Mr. Mehul Gupta, learned counsel has placed reliance
upon Union of India and Others v. Permanand Singh 1999 Supreme
Court Cases (L&S) 625 and D.M. Premkumari v. Divisional
D
Commissioner, Mysore Division and Others (2009) 12 SCC 267.
75. Pointing out that even presently, there are 2779 vacancies and
that 906 vacancies are kept apart, Mr. Mehul Gupta, learned counsel
appearing for 906 candidates has submitted that 906 candidates can be
accommodated in the aforesaid 2779 vacant posts existing as on date.
This contention does not merit acceptance. The present vacancies i.e. E
4838 and the available vacancies i.e. 2779 are the future vacancies which
are to be filled up by a fresh advertisement and by participation of all the
eligible candidates including the 906 candidates and other unsuccessful
candidates. 2779 vacancies existing as on date, which are the vacancies
as on date i.e. in 2019 cannot be filled up by the candidates who got F
selected pursuant to the advertisement in 2013-2014.
76. Article 142 of the Constitution of India confers wide power
upon the Supreme Court to do complete justice between the parties.
Though the powers conferred on the Supreme Court by Article 142 are
very wide, the same cannot be exercised to pass an order inconsistent G
with express statutory provisions of substantive law. In Ramji Veerji
Patel and Others v. Revenue Divisional Officer and Others (2011)
10 SCC 643, the Supreme Court held that the power under Article 142
of the Constitution of India is to be exercised very carefully and sparingly.
The power under Article 142 of the Constitution of India can be exercised
H
1122 SUPREME COURT REPORTS [2019] 12 S.C.R.

A so as to do complete justice between the parties. However, as held in
Supreme Court Bar Association v. Union of India and Another
(1998) 4 SCC 409, though the power under Article 142 of the
Constitution are plenary in nature, the same cannot be construed to mean
that the power can be used to supplant the substantive law applicable to
the case. In the case in hand, as discussed earlier, as per the provisions
B
of Uttar Pradesh Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes) Act, 1994, specific
percentages of vacancies have been reserved for different categories
viz., (a) Scheduled Castes – 21% (b) Scheduled Tribes – 2% and
(c) OBC – 27%. In any recruitment, this statutory permissible limit of
C reservation not exceeding 50% has to be maintained. The power under
Article 142 of the Constitution of India cannot be exercised to supplant
the statutory provision under the UP Reservation Act, 1994. In our view,
in exercise of power under Article 142 of the Constitution of India, no
direction can be issued to the State of UP to issue appointment orders to
the 906 candidates.
D
77. Summary of Conclusion:-
(i) The Office Memorandum dated 12.10.2014 issued by the UP
Public Service Commission revising the number of
vacancies is based upon the revised requisition of the
E Government dated 20.08.2014. The revised requisition of
the Government dated 20.08.2014 was only to rectify the
wrongful calculation of the number of vacancies in different
categories and to comply with the requisite percentage of
quota of reservation in different categories as per Uttar
Pradesh Public Services (Reservation for Scheduled Castes,
F Scheduled Tribes and Other Backward Classes) Act, 1994;
(ii) In view of Rule 15 and Rule 6 of UP Subordinate Agriculture
Services Rules, 1993 (Agriculture Service Rules, 1993), the
Recruitment Authority is empowered to rectify the wrongful
calculation and make a revised requisition of number of
G vacancies in different categories which is in accordance with
the provisions of UP Reservation Act, 1994 and Agriculture
Service Rules, 1993;
(iii) Absorption of diploma holders were required to be done only
against the “General quota”. The High Court was not right
H
ANUPAL SINGH v. STATE OF U.P THR. PRINCIPAL 1123
SECRETARY, PERSONNEL DEPTT. [R. BANUMATHI, J.]

in saying that the diploma holders ought not to have been A
absorbed against the “General category” so as to alter the
advertised number of posts against the “General category”;
(iv) Revising the number of vacancies in different categories to
satisfy the statutory requirement of reservation quota as per
UP Reservation Act, 1994 and this would not amount to B
changing the rules of the game after the commencement of
the selection process;
(v) Having participated in the interview and when they failed in
the final selection, it is not open to the private respondents/
intervenors to turn around and challenge the revised C
notification dated 12.10.2014 and the final select list dated
21.05.2015;
(vi) The filling up of the unfilled horizontal reservation by the
candidates from the respective vertical reservation is in
accordance with the policy of the government and the same D
cannot be faulted with;
(vii) In view of the judgment in M/s Shenoy and Co.,
Represented by its partner Bele Srinivasa Rao Street,
Bangalore and Others v. Commercial Tax Officer, Circle
II, Bangalore and Others (1985) 2 SCC 512 andFida E
Hussain and others v. Moradabad Development Authority
and Another(2011) 12 SCC 615 and other judgments,
challenging the common judgment only in WP-C No.34196
of 2015 and non-challenge to the other writ petitions, will not
amount to res judicata;
F
(viii) The 906 candidates were not issued the appointment orders
in order to keep the appointment within the permissible
percentage of reservation as perUP Reservation Act, 1994.
The power under Article 142 of the Constitution of India
cannot be exercised to issue direction to the first
respondent-State to issue appointment orders to 906 G
candidates.
78. In the result, the common impugned judgment dated 10.02.2017
of the High Court in WP(C) No.34196 of 2015 and batch of writ
petitions is set aside and these appeals are allowed. The private
respondents/intervenors and 906 candidates who were not issued H
1124 SUPREME COURT REPORTS [2019] 12 S.C.R.

A appointment orders and those who filed writ petitions before the High
Court shall be granted age relaxation as one-time measure to participate
in the upcoming recruitment. Age relaxation is strictly a one-time mea-
sure. Consequently, all the intervenors/impleading applications stand dis-
missed.
B
Devika Gujral Appeals allowed.

C

D

E

F

G

H