Holding

The later 2015 recruitment Rules, being a general law, override the earlier 1978 Service Rules, and no waiting‑list or vested right exists for unsuccessful candidates to claim appointment to carry‑forward vacancies.

Summary

The State of Uttar Pradesh recruited Gram Panchayat Adhikari (Group C) posts in 2015 under the Uttar Pradesh Direct Recruitment to Group ‘C’ Posts Rules, 2015, which required a written exam and interview, and appointed candidates in 2017. Unsuccessful candidates later invoked Rule 15 of the older 1978 Service Rules, claiming a waiting‑list right to fill carry‑forward vacancies. The High Court Division Bench held that the 1978 rule created a waiting list, but the Supreme Court found that the 2015 Rules, being a later general law, supersede the 1978 Rules and contain no provision for a waiting list. The Court ruled that unsuccessful candidates have no vested right to be considered for vacancies and that the employer’s discretion is not limited by a non‑existent waiting‑list requirement. It also held that a party cannot selectively adopt parts of two inconsistent statutes (approbate and reprobate). Consequently, the Supreme Court set aside the High Court’s orders and restored the Single Judge’s dismissal of the writ petition. The appeal was allowed.

Issues considered

The applicability of the 1978 Uttar Pradesh Gram Panchayat Adhikari Service Rules versus the 2015 Uttar Pradesh Direct Recruitment to Group ‘C’ Posts Rules in the selection process.
Whether a waiting‑list provision exists under the 2015 Rules or the 1978 Rules for filling carry‑forward vacancies.
Whether unsuccessful candidates have a vested right to be appointed from such a waiting‑list.
Whether the later 2015 Rules, as a general law, override the earlier 1978 Rules, a special law, under the principle of 'generalia specialibus non derogant'.
The relevance of estoppel and the doctrine of approbate and reprobate to the candidates' claims.

Legislation cited

Uttar Pradesh Subordinate Services Selection Commission Act, 2014s. 15

Subjects

service lawrecruitmentGroup C postsGram Panchayat Adhikariwaiting listestoppelapprobate and reprobateUttar Pradesh Subordinate Services Selection Commission Act, 2014Uttar Pradesh Direct Recruitment Rules 2015Uttar Pradesh Gram Panchayat Adhikari Service Rules 1978non‑obstante clauseArticle 309

Judgment

1174 [2022]
SUPREME COURT 18 S.C.R. 1174
REPORTS [2022] 18 S.C.R.

A THE STATE OF UTTAR PRADESH
v.
KARUNESH KUMAR & ORS.
(Civil Appeal Nos. 8822-8823 of 2022)
B DECEMBER 12, 2022
[M. R. SHAH AND M.M SUNDRESH, JJ.]
Service Law – Uttar Pradesh Subordinate Services Selection
Commission Act, 2014 – s.15 – Uttar Pradesh Direct Recruitment to
Group ‘C’ Posts (Mode and Procedure) Rules, 2015 – rr. 1, 2, 8(2)
C
– Uttar Pradesh Gram Panchayat Adhikari Service Rules, 1978 –
rr. 15, 15(1), 15(4), 16(5) – Carry-forward vacancies – Selection
Process – An advertisement for filling up of Group ‘C’ Posts of
Gram Panchayat Adhikari was made – In 2015, the selection process
was completed in accordance with the Uttar Pradesh Direct
D Recruitment to Group ‘C’ Posts (Mode and Procedure) Rules, 2015
(Rules 2015) as per the Uttar Pradesh Subordinate Services
Selection Commission Act, 2014 (Act 2014) – Result was declared
in 2016 and appointment letters were served in 2017 – Meanwhile
in 2016, Uttar Pradesh Gram Panchayat Adhikari Service Rules,
1978 (Rules 1978) were amended – The process for the next
E
selection was commenced by taking note of the carry-forward
vacancies – The respondents and impleading applicants those who
gone through the selection process but have not find their place in
the list sent by the Uttar Pradesh Subordinate Services Selection
Commission (UPSSC) to appointing authority filed Writ Petition
F which was dismissed by Single Judge – Division Bench overturned
the Single Judge judgment interpreting Rule 15 of 1978 Rules and
directed the appointing authority to consider the candidates waiting
in the queue based upon their performance for the vacancies that
arose due to the failure of the selected candidate to join – Review
Petition was filed on the ground that 1978 rule is not applicable
G
instead Rules 2015 is applicable – Review petition was dismissed –
Appellant challenged both the orders before Supreme Court –
Held:No vested right of the unsuccessful candidate to insist upon their
consideration, in the absence of any such rule requiring for the preparation
of a waiting-list – Un-selected candidates wanted to press into service a
H part of the 1978 Rules while accepting the 2015 Rules – Such a
1174
THE STATE OF UTTAR PRADESH v. KARUNESH KUMAR 1175
& ORS.

selective adoption is not permissible under law, as no party can be A
allowed to approbate or reprobate – Merely because the Appellant
sought to amend the 1978 Rules subsequently in 2016, it cannot be
presumed that the 1978 Rules particularly with respect to Rule 15
continue to exist in the statute book – Judgment of Single Judge of
the High Court restored.
B
Allowing the appeals, the Court
HELD: 1.It is not open to the candidate to contend to the
contrary so that he can have the best of both sets of rules. Not
only is there a difference in the mode of selection, but also in the
constitution of recruiting authority as well. It is pertinent to note, C
that under the 2015 Rules, there is no such procedure for
preparing a waiting-list, as the Respondents seek to contend.
[Para 23][1187-G]
2. Even under the 1978 Rules, the existence of any waiting-
list in operation to be filled up at a later point of time, when a D
certain candidate does not join was not found. Such a list has
been provided under Rule 15(4) of the 1978 Rules only to facilitate
the appointing authority to fill up the vacancies. Thus, after the
vacancies are filled up, the door for the other candidates gets
closed. [Para 24][1187-H; 1188-A]
E
3. The same is the position under the 2015 Rules by which
the Commission is required to send the merit list alone to the
appointing authority which it actually did and in case of non-joining,
the vacancies are carried forward to the next process of selection,
as has been rightly done by the authority in the present case. An
employer shall always have adequate discretion with an element F
of flexibility in selecting an employee. Interference can only be
made when a selection is arbitrary or contrary to law, which we
do not find to be the case in the present matter. The approach of
the High Court is like a visually impaired person looking for a
black cat in a dark room when the cat itself is not there. [Para G
25][1188-B-C]
4. Now coming to the question of repugnancy between the
two Rules, namely, the 1978 Rules, being a special Rule, and the
general Rule introduced in the year 2015. The 1978 Rules do
H
1176 SUPREME COURT REPORTS [2022] 18 S.C.R.

A not exist in the statute once the 2015 Rules came into being. By
the introduction of the 2014 Act, the legislature in its wisdom
assigned the role of filling up the Class ‘C’ posts to the
Commission. This Court has no difficulty in appreciating the legal
contentions raised by the Respondents, however, the decisions
rendered do not have any application, considering the
B inconsistency between the two sets of rules. The two sets of rules
to be inconsistent with each other, it is clear that the later rules,
even though general in nature, will govern the field. [Para
26][1188-D-F]
5. On a perusal of the judgment rendered by the High
C Court, as found earlier, the impugned decisions are made without
considering the appropriate provisions despite an endeavour
being made drawing its attention to the same. The High Court in
our considered view did not take note of the grounds raised in
the Review Petition. In a proceeding initiated under Article 226
of the Constitution of India, the scope of review has to be looked
D at differently, facilitating an enlarged view. The scope of Rule 15
and the non-availability of any provision for a waiting list in the
2015 Rules is already discussed. [Para 33][1191-G-H; 1192-A-
B]
6. Accordingly, the appeal stands allowed and the impugned
E judgments dated 09.08.2018 and 30.10.2019 are set aside and
consequently the order passed by the Single Judge stands
restored. [Para 34][1192-B]
Mohan Karan v. State of U.P. (1998) 3 SCC 444: [1998]
2 SCR 328; Surinder Singh v. State of Punjab (1997) 8
F SCC 488 : [1997] 3 Suppl. SCR 538; Union of India v.
G.R. Prabhavalkar (1973) 4 SCC 183 : [1973] 3 SCR
714; S.S. Balu v. State of Kerala (2009) 2 SCC 479 :
[2009] 1 SCR 196; Maya Mathew v. State of Kerala
(2010) 4 SCC 498 : [2010] 3 SCR 16; V. K. Girija v.
ReshmaParayil [2019] 2 SCC 347 : (2018) 14 SCR
G 1036; Chief Information Commissioner v. High Court
of Gujarat 2020) 4 SCC 702; Dinesh Kumar Kashyap
& Ors. v. South East Central Railway & Others (2019)
12 SCC 798 : [2018] 14 SCR 947; Union of India v. N
Murugesan (2022) 2 SCC 25; Vallampati Sathish Babu
v. State of A.P. (Civil Appeal No. 2473 of 2022); Ajoy
H
THE STATE OF UTTAR PRADESH v. KARUNESH KUMAR 1177
& ORS.

Kumar Banerjee v. Union of India (1984) 3 SCC 127: A
[1984] 3 SCR 252; Anupal Singh v. State of U.P. (2020)
2 SCC 173 : [2019] 12 SCR 1071; K. Manjusree v.
State of A.P. & Anr. (2008) 3 SCC 512 : [2008] 2 SCR
1025; Rajiv Kumar Srivastava & Anr. SLP (C) CC No.
10604 of 2013 –referred to.
B
Case Law Reference
(1998) 2 SCR 328 referred to Para 16
(1997) 3 Suppl. SCR 538 referred to Para 16
(1973) 3 SCR 714 referred to Para 16 C
(2009) 1 SCR 196 referred to Para 16
(2010) 3 SCR 16 referred to Para 19
(2018) 14 SCR 1036 referred to Para 19
(2018) 14 SCR 947 referred to Para 19 D
(1984) 3 SCR 252 referred to Para 26
(2019) 12 SCR 1071 referred to Para 21
(2008) 2 SCR 1025 referred to Para 32
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.8822- E
8823 of 2022.
From the Judgment and Order dated 09.08.2018 of the High Court
of Judicature at Allahabad in Special Appeal Defective No.163/2018
(Special Appeal No.911/2018) and Order dated 30.10.2019 in Civil Misc.
Review Application No. Nil of 2018 in Special Appeal (D) No.163/2018 F
(Special Appeal No.911/2018).
Ms. Ruchira Goel, Goutham Shivshankar, Adit Jayeshbhai Shah,
Advs. for the Appellant.
V. K. Shukla, S. R. Singh, Sr. Advs., Dinesh K. Garg, Abhishek
Garg, Dhananjay Garg, Ishaan Tiwari, Rishikant, Kamlesh Kumar G
Maurya, Ms. Leelawati Suman, S. Kumar, Vipin Kumar Jai, Pradeep
Kumar Yadav, Vishal Thakre, Tota Ram, Sanjeev Malhotra, M. R.
Shamshad, Arijit Sarkar, Ms. Nabeela Jamil, Raunak Parekh, P. V. Singh,
Dr. Vinod Kumar Tewari, Jetendra Singh, Vijendra Kumar Kaushik, Ms.
Kalpana, Ms. Priyanka Singh, Varun Punia, Shashank Singh, Manoj H
1178 SUPREME COURT REPORTS [2022] 18 S.C.R.

A Kumar, Ms. Nazish Fatima, S. K. Shukla, Manoj Kr. Dwedi, Ms. Savita
Devi, Ujjaval Kumar, Prashant Shukla, Suyash Srivastava, Parvez Alam,
Satyajeet Kumar, Neeraj Aarora, Ms. Chandan Ramamurthi, Kamlesh
Kumar Maurya, Kaushal Yadav, Nandlal Kumar Mishra, Vivekanand
Rana, Shaf, Santosh Kumar, Ms. Yashoda Katiyar, Ms. Apeksha Rai,
Ms. Akansha Rai, Ms. Surajita Pattaniak, Buddha Deo Prasad, Dharm
B
Pal Saini, Sushant Kumar Yadav, Ajay Yadav, Jaidev Yadav, Gaurav
Lomes, Ankur Yadav, Sadashiv, Rahul Tomar, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. M. SUNDRESH, J.
C 1. The decision of the Division Bench of the High Court of
Judicature at Allahabad in allowing the writ petition filed by the private
Respondents, setting aside the order passed by the learned Single Judge
is assailed before us. Candidates who waited in the wings, observing the
legal journey, filed applications for impleadment seeking extended benefit
of the impugned Judgment and Order.
D 2. The present appeals are filed by the State of Uttar Pradesh
inter alia contending that the candidates who are not part of the list
forwarded by the Uttar Pradesh Subordinate Services Selection
Commission (hereinafter referred to as ‘the Commission’) were also
directed to be considered in the vacancies arisingpursuant to the selected
E candidates approved by the appointing authority, not taking up the jobs
offered to the post of Gram Panchayat Adhikari, Single Cadre, Group
(C). The learned Single Judge dismissed the Writ Petitionfiledby the
private Respondents, which was overturned by the Division Bench on
the premise that Rule 15 of the Uttar Pradesh Gram Panchayat Adhikari
Service Rules, 1978 (hereinafter referred to as “1978 Rules”),if given
F due interpretation, would facilitate consideration of persons waiting in
the queue based upon their performance. An application for review was
filed by the appellant inter alia stating that the relevant rule to be applied
is the Uttar Pradesh Direct Recruitment to Group ‘C’Posts (Mode and
Procedure) Rules, 2015 (hereinafter referred to as “2015 Rules”). The
G said application was dismissed without taking note of the aforesaid
contentions. The State seeks to assail both the aforesaid orders in the
present proceedings.
3. Heard Ms. Ruchira Goel, learned counsel for the Appellant
and Mr. V.K. Shukla, learned senior counsel for the Respondent Nos. 1
to 3 and Mr. M.R. Shamshad for the Respondent No. 4.
H
THE STATE OF UTTAR PRADESH v. KARUNESH KUMAR 1179
& ORS. [M. M. SUNDRESH, J.]

ON FACTS: A
4. An advertisement was made for the purpose of filling up of
3587 Group ‘C’ Posts of Gram Panchayat Adhikari on 22.06.2015. The
selection process was completed in accordance with the 2015 Rules, by
duly conducting a written examination followed by an interview. By way
of abundant caution, though not necessitated, the 1978 Rules were also B
amended on 22.11.2016. The final result was declared on 24.12.2016
and appointment letters were issued during the months of April and May,
2017. During the pendency of the writ petition, the process for the next
selection was commenced by taking note of the carry-forward vacancies.
At that point of time, the impugned orders were passed by the Division
Bench of the High Court of Allahabad. C

5. The private respondents and the impleading applicants willingly
took part in the selection process. Obviously, they were not disqualified
but along with others made to go through the recruitment process of
written examination and the interview. It is to their misfortune that they
did not find a place in the list sent by the Commission to the appointing D
authority. Though, the entire process was done in tune with the 2015
Rules and in exercise of the power conferred under the Uttar Pradesh
Subordinate Services Selection Commission Act, 2014(hereinafter
referred to as the “2014 Act”), the reliance was made on the 1978 Rules
which has found favour with the High Court. E
RELEVANT RULES:
6. We shall first consider all the relevant rules and definitions,
with specific reference to the provisions governing the recruitment
process, to have a correct understanding of the issue involved.
F
A. Uttar Pradesh Gram Panchayat Adhikari Service Rules,
1978:
7. These rules exclusively dealt with the appointment to the post
of Gram Panchayat Adhikari, introduced by the powers conferred under
the proviso to Article 309 of the Constitution of India. It has undergone
G
amendment in the year 1989. We are concerned with two amendments
by which the earlier Group ‘D’ posts were converted into Group ‘C’
posts, with the change in the constitution of the committee. The first
amendment is to the rule providing for the aforesaid change and the
second one is with respect to Rule 15(1).
H
1180 SUPREME COURT REPORTS [2022] 18 S.C.R.

A 8. Rule 15(1) changes the composition of the Selection Committee
while the appointing authority remains the same. Rule 15(4), which was
left untouched by the subsequent amendment, enabled the Selection
Committee to prepare the list of candidates in order of merit as disclosed
by the marks obtained in the interview. It further provides for the list to
be enlarged by not more than 25% of the number of total vacancies.
B
9. Under the aforesaid rules, there was no written examination
contemplated as against a mere interview by the Selection Committee.
No waiting list as such has been provided expressly, though the list shall
contain a larger number of names in comparison to the vacancies. We
shall now place on record the aforesaid provision to have a better
C understanding.
“Rule 15
(4) The Selection Committee shall prepare a list of candidates in
order to merit as disclosed by the marks obtained in the interview.
D The number of the names in the list shall be larger (but no larger
by more than 25 per cent) than the number of the vacancies.”
B. Government Order dated 15.11.1999:
10. The Government Order was passed by the Appellant to
dispense with any concept of waiting list except in case of a selection to
E a single post, meaning thereby that if a selected candidate to a single
particular post is not filled up by reason of the candidate not joining, the
next in line would get a re-look on the premise that the entire exercise
done shall not go down the drain. Therefore, the object is rather clear.
Consequently, the said order hands over the selection and recruitment
F process to the Public Service Commission to be applied to all the posts
spanning over the State. It was also passed in supersession of all the
earlier orders.
C. Uttar Pradesh Subordinate Services Selection
Commission Act, 2014:
G 11. By the 2014 Act, the need for an independent specialized agency
for the timely selection of Group (C) posts was felt, as could be seen
from the Statement of Objects and Reasons furnished hereunder:
“…In near past, selection on Group ‘C’ posts was being done
under the direct supervision of the State Government but Head of
H Departments had to devote much time for the above selections
THE STATE OF UTTAR PRADESH v. KARUNESH KUMAR 1181
& ORS. [M. M. SUNDRESH, J.]

which is severely affecting the Government works as well as the A
works of public interest. Due to all these reasons, it is quite
necessary to establish an independent Subordinate Services
Selection Commission consisting of the Chairperson and Members
similar to that of the Uttar Pradesh Public Service Commission
for timely selection on certain Group ‘C’ posts. It has therefore,
B
been decided to make a law to provide for the establishment of a
Commission by the name of the Uttar Pradesh Subordinate
Services Selection Commission for the selection on certain Group
‘C’ posts in the State…”
12. This being an Act passed by the legislature, shall certainly
override all the prevailing rules in conflict. The powers and duties of the C
Commission are defined with clarity under the 2014 Act.Suffice it is to
state that the entire process of recruitment to the Group ‘C’ posts is
entrusted to the Commission, as could be seen under Section 15 which
enables the conduct of examinations, holding interviews leading to the
selection of candidates. D
D. The Uttar Pradesh Direct Recruitment to Group ‘C’
Posts (Mode and Procedure) Rules, 2015
13. The 2015 Rules are brought into the statute with effect from
11.05.2015. Rule (1) speaks of the application to Group ‘C’ posts, while
Rule (2) highlights the fact that it will have an overriding effect, E
notwithstanding anything to the contrary contained in any other service
rules made under the proviso to Article 309 of the Constitution of India.
Under Rule 8(2), it is made clear that all Group ‘C’ posts would come
under its purview, except those specifically excluded by the Government
by way of a notification, and laid down the procedure of direct recruitment F
by way of a written examination followed by an interview. Thereafter,
the Commission shall prepare a list of candidates on the basis of merit
and forward it to the appointing authority. Thus, these rules do not provide
for any waiting list. The only list required to be sent is based upon merit,
subject to the rule of reservation.
G
ARGUMENTS OF THE PARTIES:
Arguments of the Appellant:
14. In view of the existence of a specific non-obstante clause, the
2015 Rules, being the later one, and despite being a general law would
take precedence over the 1978 Rules, being the special service rules. H
1182 SUPREME COURT REPORTS [2022] 18 S.C.R.

A Since the two sets of rules are completely inconsistent, in light of the
fact that the authority who is to conduct the recruitment process is different
in the two rules, so also the process of recruitment, as such, there is no
possibility of any harmonious reading of the two sets of rules.
15. The amendment made to the special rules in the year 2016
B would not change the position as it was done by way of abundant caution,
being clarificatory in nature. There is no right vested with the private
respondents and the impleading applicants to the post, and the waiting-
list cannot be seen as a perennial source of recruitment. Having
participated in the process of recruitment, they are estopped, having
acquiesced themselves. Even otherwise, in light of the 1999 GO, the
C Respondents or the impleadment applicants will not be entitled to
appointment.
16. It is the sole prerogative of the Appellant and the Commission
to prescribe any mode of selection. Despite the 2015 Rules having been
brought to its notice, theHigh Courtfailed to duly consider the same. The
D impleadment applicants are fence-sitters and as such are even otherwise
not entitled to any relief. Seeking to strengthen the aforesaid arguments,
reliance has been made on the decisions of this Court in the following
cases:
• Ajoy Kumar Banerjee v. Union of India (1984) 3 SCC
E 127,
• Mohan Karan v. State of U.P. (1998) 3 SCC 444,
• Surinder Singh v. State of Punjab (1997) 8 SCC 488,
• Anupal Singh v. State of U.P. (2020) 2 SCC 173,
F
• Union of India v. G.R. Prabhavalkar (1973) 4 SCC 183.
• S.S.Balu v. State of Kerala (2009) 2 SCC 479
Arguments of the Respondents
17. The 1978 Rules deal with a specified post, and therefore, the
G 2015 Rules, despite being a subsequent one will have to yield to it, the
former being the special law governing the field.Rule 15(4) of the 1978
Rules clearly provides for a waiting list. A general rule will not have
precedence over a special one, notwithstanding a non-obstante clause,
unless there is a clear inconsistency between the two, in which case the
H two sets of rules will have to be harmoniously construed.
THE STATE OF UTTAR PRADESH v. KARUNESH KUMAR 1183
& ORS. [M. M. SUNDRESH, J.]

18. The 1978 Rules, governed the field until the 2016 amendment, A
which only came into force after the interviews in the impugned selection
process, and as such, the rules of the game cannot be changed once the
game has started. Even otherwise, there is a vested right of appointment
against an advertised post which has remained unfilled due to non-joining
of the more meritorious candidate.
B
19. It is not a case of mere operation of the waiting list to fill up
the vacancies created due to the failure of the selected candidate to join.
The arguments aforesaid are sought to be strengthened by the decisions
of this Court in the following cases:
• Maya Mathew v. State of Kerala (2010) 4 SCC 498, C
• V. K. Girija v. Reshma Parayil (2019) 2 SCC 347,
• Chief Information Commissioner v. High Court of
Gujarat (2020) 4 SCC 702.
• State of U.P. &Anr. v. Rajiv Kumar Srivastava D
&Anr.SLP (C) CC No. 10604 of 2013dated 26.07.2013
• K. Manjusree v. State of A.P. &Anr. (2008) 3 SCC
512
• Dinesh Kumar Kashyap &Ors. v. South East Central
Railway & Others (2019) 12 SCC 798 E
DISCUSSION:
20. We have already placed the relevant rules and considered
their import. Clause 15(1) of the 1978 Rules deals with a Selection
Committee, while we are concerned with the recruitment made by the
Selection Commission statutorily created by an enactment, the 2014 Act. F
Under the 1978 Rules, no written examination was contemplated as
against a mere interview. This was consciously given a go-by, to the
knowledge of the candidates who willingly participated in the selection
process by taking the written examination, and thereafter, the interview.
This process was adopted in tune with the 2015 Rules, and in terms of G
the powers conferred to the Commission under the 2014 Act. Therefore,
the 1978 Rules are put into cold storage qua a selection even at the time
of conducting the written examination.
21. A candidate who has participated in the selection process
adopted under the 2015 Rules is estopped and has acquiesced himself
H
1184 SUPREME COURT REPORTS [2022] 18 S.C.R.

A from questioning it thereafter, as held by this Court in the case of Anupal
Singh (supra):
“55.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
B was contended that after the revised Notification dated 12-10-
2014, the private 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.
C It is a settled law that a person having consciously participated in
the interview cannot turn around and challenge the selection
process.
56. Observing that the result of the interview cannot be challenged
by a candidate who has participated in the interview and has taken
D the chance to get selected at the said interview and ultimately,
finds himself to be unsuccessful, in Madan Lal v. State of
J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712], it was held as
under : (SCC p. 493, para 9)
“9. … The petitioners also appeared at the oral interview
E 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
selected at the said oral interview. Only because they did not
find themselves to have emerged successful as a result of their
combined performance both at written test and oral interview,
F 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 cannot turn round and subsequently contend
that the process of interview was unfair or the Selection
Committee was not properly constituted.”
G
57. In K.H. Siraj v. High Court of Kerala [(2006) 6 SCC 395 :
2006 SCC (L&S) 1345], it was held as under : (SCC p. 426, para
73)
“73. The appellant-petitioners having participated in the
interview in this background, it is not open to the appellant-
H
THE STATE OF UTTAR PRADESH v. KARUNESH KUMAR 1185
& ORS. [M. M. SUNDRESH, J.]

petitioners to turn round thereafter when they failed at the A
interview and contend that the provision of a minimum mark
for the interview was not proper.”
58. In Union of India v. S. Vinodh Kumar [(2007) 8 SCC 100 :
(2007) 2 SCC (L&S) 792], it was held as under : (SCC p. 107,
para 19) B
“19. In Chandra Prakash Tiwari v. Shakuntala
Shukla [(2002) 6 SCC 127 : 2002 SCC (L&S) 830] ….
xxx xxx xxx
It was further observed : (SCC p. 149, para 34) C
‘34. There is thus no doubt that while question of any estoppel
by 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
D
and subsequently contend that the process of interview was
unfair or there was some lacuna in the process.”
59. Same principle was reiterated in Sadananda Halo v. Momtaz
Ali Sheikh [(2008) 4 SCC 619 : (2008) 2 SCC (L&S) 9] wherein,
it was held as under : (SCC pp. 645-46, para 59)
E
“59. It is also a settled position that the unsuccessful candidates
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 : (2007) 2 SCC (L&S) 792] …. The Court also F
referred to the judgment in Om Prakash Shukla v. Akhilesh
Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644],
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 G
entertaining the petition challenging such examination would
not arise.”
22. In the case at hand, the un-selected candidates want to
pressintoservice a part of the 1978 Rules while accepting the 2015 Rules.
Such a selective adoption is not permissible under law, as no party can H
1186 SUPREME COURT REPORTS [2022] 18 S.C.R.

A be allowed to approbate or reprobate, as held by this Court in Union of
India v. N Murugesan (2022) 2 SCC 25:
“Approbate and reprobate
26. These phrases are borrowed from the Scots law. They would
only mean that no party can be allowed to accept and reject the
B same thing, and thus one cannot blow hot and cold. The principle
behind the doctrine of election is inbuilt in the concept of approbate
and reprobate. Once again, it is a principle of equity coming under
the contours of common law. Therefore, he who knows that if he
objects to an instrument, he will not get the benefit he wants cannot
C be allowed to do so while enjoying the fruits. One cannot take
advantage of one part while rejecting the rest. A person cannot
be allowed to have the benefit of an instrument while questioning
the same. Such a party either has to affirm or disaffirm the
transaction. This principle has to be applied with more vigour as a
common law principle, if such a party actually enjoys the one part
D fully and on near completion of the said enjoyment, thereafter
questions the other part. An element of fair play is inbuilt in this
principle. It is also a species of estoppel dealing with the conduct
of a party. We have already dealt with the provisions of the
Contract Act concerning the conduct of a party, and his
E presumption of knowledge while confirming an offer through his
acceptance unconditionally.
xxx xxx xxx
27.2.State of Punjab v. Dhanjit Singh Sandhu [(2014) 15 SCC
144] : (SCC pp. 153-54, paras 22-23 & 25-26)
F
“22. The doctrine of “approbate and reprobate” is only a species
of estoppel, it implies only to the conduct of parties. As in the
case of estoppel it cannot operate against the provisions of a
statute. (Vide CIT v. MR. P. Firm Muar [AIR 1965 SC 1216].)
23. It is settled proposition of law that once an order has been
G
passed, it is complied with, accepted by the other party and
derived the benefit out of it, he cannot challenge it on any
ground. (Vide Maharashtra SRTC v. Balwant Regular
Motor Service [AIR 1969 SC 329].) In R.N.
Gosain v. Yashpal Dhir [(1992) 4 SCC 683] this Court has
H
THE STATE OF UTTAR PRADESH v. KARUNESH KUMAR 1187
& ORS. [M. M. SUNDRESH, J.]

observed as under : (R.N. Gosain case [(1992) 4 SCC 683], A
SCC pp. 687-88, para 10)
‘10. Law does not permit a person to both approbate and
reprobate. This principle is based on the doctrine of election
which postulates that no party can accept and reject the
same instrument and that ‘a person cannot say at one time B
that a transaction is valid and thereby obtain some
advantage, to which he could only be entitled on the footing
that it is valid, and then turn round and say it is void for the
purpose of securing some other advantage’.’
xxx xxx xxx C
25. The Supreme Court in Rajasthan State Industrial
Development & Investment Corpn. v. Diamond & Gem
Development Corpn. Ltd. [(2013) 5 SCC 470 : (2013) 3 SCC
(Civ) 153], made an observation that a party cannot be permitted
to “blow hot and cold”, “fast and loose” or “approbate and D
reprobate”. Where one knowingly accepts the benefits of a
contract or conveyance or an order, is estopped to deny the validity
or binding effect on him of such contract or conveyance or order.
This rule is applied to do equity, however, it must not be applied in
a manner as to violate the principles of right and good conscience.
E
26. It is evident that the doctrine of election is based on the rule
of estoppel, the principle that one cannot approbate and reprobate
is inherent in it. The doctrine of estoppel by election is one among
the species of estoppel in pais (or equitable estoppel), which is
a rule of equity. By this law, a person may be precluded, by way
of his actions, or conduct, or silence when he has to speak, from F
asserting a right which he would have otherwise had.”
23. The aforesaid principle of law applies to the present case. It is
not open to the candidate to contend to the contrary so that he can have
the best of both sets of rules. Not only is there a difference in the mode
of selection, but also in the constitution of recruiting authority as well. It G
is pertinent to note, that under the 2015 Rules, there is no such procedure
for preparing a waiting-list, as the Respondentsseek to contend.
24. We have considered the aforesaid submissions to appreciate
the arguments made. Even under the 1978 Rules, we do not find the
existence of any waiting-list in operation to be filled up at a later point of H
1188 SUPREME COURT REPORTS [2022] 18 S.C.R.

A time, when a certain candidate does not join. Such a list has been provided
under Rule 15(4) of the 1978 Rules only to facilitate the appointing
authority to fill up the vacancies. Thus, after the vacancies are filled up,
the door for the other candidates gets closed.
25. The same is the position under the 2015 Rules by which the
B Commission is required to send the merit list alone to the appointing
authority which it actually did and in case of non-joining, the vacancies
are carried forward to the next process of selection, as has been rightly
done by the authority in the present case. An employer shall always
have adequate discretion with an element of flexibility in selecting an
employee. Interference can only be made when a selection is arbitrary
C or contrary to law, which we do not find to bethe case in the present
matter. The approach of the High Court is like a visually impaired person
looking for a black cat in a dark room when the cat itself is not there.
26. Now we shall come to the question of repugnancy between
the two Rules, namely, the 1978 Rules, being a special Rule, and the
D general Rule introduced in the year 2015. The 1978 Rules do not exist in
the statute once the 2015 Rules came into being. By the introduction of
the 2014 Act, the legislature in its wisdom assigned the role of filling up
the Class ‘C’ posts to the Commission.We have no difficulty in
appreciating the legal contentions raised by the Respondents,however,
E the decisions rendered do not have any application, considering the
inconsistency between the two sets of rules. As we have already held
the two sets of rules to be inconsistent with each other, it is clear that the
later rules, even though general in nature, will govern the field. On this
aspect, we wish to quote with profit the decision of this Court in the case
of Ajoy Kumar Banerjee (supra),
F
“38….As mentioned hereinbefore if the scheme was held to be
valid, then the question what is the general law and what is the
special law and which law in case of conflict would prevail would
have arisen and that would have necessitated the application of
the principle ”Generalia specialibus non derogant”. The
G general rule to be followed in case of conflict between two statutes
is that the later abrogates the earlier one. In other words, a prior
special law would yield to a later general law, if either of the two
following conditions is satisfied:
(i) The two are inconsistent with each other.
H
THE STATE OF UTTAR PRADESH v. KARUNESH KUMAR 1189
& ORS. [M. M. SUNDRESH, J.]

(ii) There is some express reference in the later to the earlier A
enactment.
If either of these two conditions is fulfilled, the later law, even
though general, would prevail.
39. From the text and the decisions, four tests are deducible and
these are: (i) The Legislature has the undoubted right to alter a B
law already promulgated through subsequent legislation, (ii) A
special law may be altered, abrogated or repealed by a later
general law by an express provisions, (iii) A later general law will
override a prior special law if the two are so repugnant to each
other that they cannot co-exist even though no express provision C
in that behalf is found in the general law, and (iv) It is only in the
absence of a provision to the contrary and of a clear inconsistency
that a special law will remain wholly unaffected by a later general
law. See in this connection, Maxwell on the Interpretation of
Statutes, Twelfth Edition, pages 196-198.”
D
27. Merely because the Appellant sought to amend the 1978 Rules
subsequently in 2016, it cannot be presumed that the 1978 Rules
particularly with respect to Rule 15 continue to exist in the statute book,
considering the fact that the 2016 amendment was only clarificatory in
nature. We may hasten to add that both the Rules were made inthe
exercise of power conferred under Article 309 of the Constitution of E
India.
28. Much reliance has been made on the Government Order passed
on 15.11.1999. The said order is very clear on two counts. It speaks of
the role being played by the Public Service Commission, and dispensing
with the waiting-list except in case of selection to a single post. What is F
important to be noted is the selection and that too for a single post. It
would only mean that selection of an individual to a post, which cannot
be interpreted to mean a particular category of post or a single cadre
post, as contended by the counsel for the Respondents. The object is
very clear that the exercise done in selecting a suitable candidate shall G
not go waste if that person is not actually selected for any reason, in
which case the next in line would get in. Otherwise, the entire process
would go to waste, making the recruiting agency to redo it all over for a
single post.

H
1190 SUPREME COURT REPORTS [2022] 18 S.C.R.

A 29. The learned counsel appearing for the respondents made a
specific reference to the decision rendered in the case of Rajiv Kumar
Srivastava(supra)to press home the contention that, when apost is not
filled due to non-joining of a candidate, another one waiting in the wings
merits consideration, as a vested right inures in his benefit.
B 30. The aforesaid decision,in our considered view, may not have
any application to the case on hand.The effect of the relevant rules is
not considered therein,as the select list shuts the door to everyone other
than the selected candidates. The aforesaid decision was in the context
of the 1999 GO, however, as we have held that the 1978 Rules do not
apply to the present recruitment, the aforesaid decision would not be of
C any service. Further, it issettled law that there is no vested right of the
unsuccessful candidate to insist upon their consideration, in the absence
of any such rule requiring for the preparation of a waiting-list. This Court
in the recent decision in Vallampati Sathish Babu v. State of A.P. (Civil
Appeal No. 2473 of 2022) has held that:
D “7.4 In the present case, the final selection list of 33 candidates
was prepared. Thereafter all the selected candidates were called
for counselling, but one of the candidates did not report for
counselling. The aforesaid event took place after the final selection
list was prepared and published. As there was no requirement of
E preparation of a waiting list, the appellant claiming to be the next
in the merit cannot claim any appointment as his name neither
figured in the list of the selected candidates nor in any waiting list
as there was no provision at all for preparation of the waiting list.
Sub-rule (5) of Rule 16 is very clear. Therefore, the post remained
unfilled due to one of the candidates in the final list did not appear
F for counselling and/or accepted the employment. Hence, that post
has to be carried forward for the next recruitment.
7.5 The appellant could have claimed the appointment to the post
which remained unfilled provided there is a provision for waiting
list as per the statutory provision. In absence of any specific
G provision for waiting list and on the contrary, there being a specific
provision that there shall not be any waiting list and that the post
remaining unfilled on any ground shall have to be carried forward
for the next recruitment. The appellant herein, thus, had no right
to claim any appointment to the post which remained unfilled.
H
THE STATE OF UTTAR PRADESH v. KARUNESH KUMAR 1191
& ORS. [M. M. SUNDRESH, J.]

xxx xxx xxx A
8.1 An identical question came to be considered by this Court in
the case of Suresh Prasad and Ors. (supra). In the said decision,
it is specifically observed and held that even in case candidates
selected for appointment have not joined, in the absence of any
statutory rules to the contrary, the employer is not bound to offer B
the unfilled vacancy to the candidates next below the said
candidates in the merit list. It is also further held that in the absence
of any provision, the employer is not bound to prepare a waiting
list in addition to the panel of selected candidates and to appoint
the candidates from the waiting list in case the candidates from
the panel do not join. The aforesaid decision of this Court has C
been subsequently followed by the Andhra Pradesh High Court in
the case of Samiula Shareef and Ors. (supra)”
31. We do not wish to reiterate the situation when two Rules are
sought to be pitted against each other,as we findno such repugnancy
that has arisen. A court of law is expected to reconcile the rules, and D
therefore, not to foresee or presume conflicts, if any.
32. The respondents have also placed reliance on the decision of
this Court in the case of K. Manjusree (supra). However, in our
considered view,the facts of the aforesaid decision are quite different
from the present case. A change was introduced for the first time after E
the entire process was over, based on the decision made by the Full
Court qua the cut off. Secondly, it is not as if the private respondents
were non-suitedfrom participating in the recruitment process. The
principle governing changing the rules of game would not have any
application when the change is with respect to selection process but not F
the qualification or eligibility. In other words, after the advertisement is
made followed by an application by a candidate with further progress, a
rule cannot be brought in, disqualifying him to participate in the selection
process. It is only in such cases, the principle aforesaid will have an
application or else it will hamper the power of the employer to recruit a
person suitable for a job. G
33. On a perusal of the judgment rendered by the High Court, as
found earlier, the impugned decisions are made without considering the
appropriate provisions despite an endeavour being made drawing its
attention to the same. The High Court in our considered view did not
H
1192 SUPREME COURT REPORTS [2022] 18 S.C.R.

A take note of the grounds raised in the Review Petition. In a proceeding
initiated under Article 226 of the Constitution of India, the scope of review
has to be looked at differently, facilitating an enlarged view.We have
already discussed the scope of Rule 15 and the non-availability of any
provision for a waiting list in the 2015 Rules.
B 34. Accordingly, the appeal stands allowed and the impugned
judgments dated 09.08.2018 and 30.10.2019 are set aside and
consequently the order passed by the learned Single Judge stands
restored. No costs.

C Ankit Gyan and Anurag Bhaskar Appeals allowed.
(Assisted by : Bodhi Ramteke, LCRA)

D

E

F

G

H