Principle Of 'Changing Rules Of Game' Won't Apply When Change Is Regarding Selection Process And Not Basic Qualification : Supreme Court

The appeals in the instant were filed by the State of Uttar Pradesh contending that the candidates who are not part of the list forwarded by the Uttar Pradesh Subordinate Services Selection Commission were also directed by the High Court, in the impugned judgment, to be considered in the vacancies arising pursuant to the selected candidates approved by the appointing authority, not taking up the jobs offered to the post of Gram Panchayat Adhikari, Single Cadre, Group (C).

The Single Bench of the High Court had dismissed the Writ Petition filed by 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 due interpretation, would facilitate consideration of persons waiting in the queue based upon their performance.

Thereafter, a review application was filed by the appellant 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 said application was dismissed without taking note of the aforesaid contentions.

The State through the instant appeal sought to assail both the aforesaid orders in the present proceedings.

The case is such that the private respondents and the impleading applicants willingly took part in the selection process and were made to go through the entire recruitment process. However, they did not find a place in the list sent by the Commission to the appointing 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 placed, by the Respondents, on the 1978 Rules which the High Court found favour with.

The arguments of the appellants were that "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. Since the two sets of rules are completely inconsistent … as such, there is no possibility of any harmonious reading of the two sets of rules."

The appellants further argued that "There is no right vested with the private respondents and the impleading applicants to the post, and the waiting-list cannot be seen as a perennial source of recruitment. Having participated in the process of recruitment, they are estopped, having acquiesced themselves."

It was also argued by the Appellants that, "It is the sole prerogative of the Appellant and the Commission to prescribe any mode of selection…The impleadment applicants are fence-sitters and as such are even otherwise not entitled to any relief."

The Respondents on the other hand argued that, "The 1978 Rules deal with a specified post, and therefore, the 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 two sets of rules will have to be harmoniously construed."

It was also argued that, "The 1978 Rules, governed the field until the 2016 amendment, 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."

Discussing the relevance of the 1978 Rules, the court held, "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. 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 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."

Analysing whether the Respondent's arguments hold any ground in law, the court held, "In the case at hand, the un-selected candidates want to press into service a part of the 1978 Rules while accepting the 2015 Rules. Such a selective adoption is not permissible under law, as no party can be allowed to approbate or reprobate. It is not open to the candidate to contend to the contrary so that he can have the best of both sets of rules…It is pertinent to note, that under the 2015 Rules, there is no such procedure for preparing a waiting-list, as the Respondents seek to contend."

While analysing the position in the 2015 Rules, the court held that, "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 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."

On the question of repugnancy between the two Rules, the court held that when " two sets of rules are inconsistent with each other, it is clear that the later rules, even though general in nature, will govern the field. We do not wish to reiterate the situation when two Rules are sought to be pitted against each other, as we find no such repugnancy that has arisen. A court of law is expected to reconcile the rules, and therefore, not to foresee or presume conflicts, if any."

Another important aspect the court discussed was its analysis on whether the rules of the game can be changed once the game has started. The court, here, distinguished between rules in the context of qualification or eligibility vs rule regarding the change in the selection process. It held, "The principle governing changing the rules of game would not have any application when the change is with respect to the selection process but not the qualification or eligibility. In other words, after the advertisement is made followed by an application by a candidate with further progress, a rule cannot be brought in, disqualifying him to participate in the selection process. It is only in such cases, the principle aforesaid will have an application or else it will hamper the power of the employer to recruit a person suitable for a job."

The Court allowed the appeal and the impugned judgments dated 09.08.2018 and 30.10.2019 were set aside and consequently the order passed by the learned Single Judge stood restored.

Case Title: The State of Uttar Pradesh vs. Karunesh Kumar & Ors. CIVIL APPEAL NOS. 8822-8823 OF 2022 [Arising out of SLP (C) Nos. 10386-10387 of 2020]

Citation : 2022 LiveLaw (SC) 1035

Service Law - Principle governing changing the rules of game would not have any application when the change is with respect to the selection process but not the qualification or eligibility-In other words, after the advertisement is made followed by an application by a candidate with further progress, a rule cannot be brought in, disqualifying him to participate in the selection process. It is only in such cases, the principle aforesaid will have an application or else it will hamper the power of the employer to recruit a person suitable for a job - Para 32- Referred to K. Manjusree v. State of A.P. & Anr. (2008) 3 SCC 512

Service Law - .A candidate who has participated in the selection process adopted  is estopped and has acquiesced himself from questioning it - Para 21- Referred to Anupal Singh v. State of U.P. (2020) 2 SCC 173

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