# Sitari Begam v. State of U.P

- **Citation:** (2007) 1 ILRA 231
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-22
- **Case number:** Civil Misc. Writ Petition No.46861 of 2005
- **Bench:** Dr. B.S. Chauhan, Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sitari-begam-v-state-of-u-p-40840
- **Pages:** 12

## Headnote

Sri A.K. Singh
Sri C.K. Rai
S.C.

Uttar
Pradesh
Secondary
Education
(Service Selection Board) Act 1982 read
with U.P. Secondary Education Service
Selection Board Rules 1998-Adjustment
of earlier selected candidate against
unadvertised
vacancy
whether
possible?-held-'No'-decision
of
single
Judge in case of Savita Gupta-overruled.
232 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(B)
Whether
the
U.P.
Secondary
Education Service Selection Board is
empowered to direct for adjustment
against the vacancy although intimated
and notified but not advertised with the
aid of G.O. dated 12.3.2001? held-'No'.

Held: Para 33

Therefore, it is evident that subordinate
legislation cannot override the statutory
rules nor can it curtail the content and
scope of the substantive provision for or
under which it has been made.

For the reasons and the conclusions
drawn
hereinabove,
our
answer
to
Question No. 1 is:

"An unadvertised vacancy cannot be
filled up from amongst the candidate
who has been selected in any previous
selections and to that extent we declare
that the pronouncement of the learned
Single Judge in the case of Savita Gupta
Vs. State of U.P. & Ors., 2004 (2) UPLBEC
2739, does not lay down the law
correctly and is hereby overruled."

and to Question No.2 is:

"The U.P. Secondary Education Services
Selection Board constituted under the
U.P. Act No.5 of the 1982 cannot, with
the aid of the Government Order dated
12th March, 2001, order any adjustment
in respect of a vacancy, which has been
intimated
and
notified
but
not
advertised".
Case law discussed:
AIR 1996 sC-976, 1994 (Supp.) SCC-591, 1996
(4) SCC-319, AIR 1999 SC-1701, 1992 (Supp.)
3 SCC-84, AIR 1998 SC-18, 2001 (10) SCC237, 2005 (4) SCC-148, AIR 2001 SC-2900,
2005 (4) SCC-148, 2003 (1) ESC-53, 2005 (4)
SCC-154,
2006
(3)
SCC-330,
W.P.
No.21245/2000 decided on 11.05.2005, (1876)
1 CH. D.-426, AIR 2001 SC-1512, AIR 2000
sC-2281, AIR 2004 SC-1657, AIR 1968 SC-49,
AIR 1977 SC-757, AIR 1990 SC-166, AIR 1991
SC-2288, AIR 1998 SC-431, AIR 1961 SC-757,
AIR 1981 SC-711, (1994) 1 SCC-269, 2001 (5)
SCC-581, 2002 (4) SCC-380, 2005 (2) SCC720, 2006 (5) SCC-789

## Text

1 All] Sitari Begam V. State of U.P.
231
(Delivered by Hon'ble Vinod Prasad, J.)

1. Heard learned counsel for the
revisionist and the learned A.G.A.

2. The application being Misc.
Application No. 54 of 2006 filed by the
revisionist Sitari Begam, under Section
156(3) Cr.P.C. disclosed commission of a
cognizable offence of grievous nature
under section 325 I.P.C. as well as under
section 308 I.P.C. Since there was a
fracture of the head bone found on the
head of Kumar Gulista. Moreover, the
accused persons have entered into the
house of the revisionist and there they
have assaulted her, which is also a
cognizable offence. Judicial Magistrate-I,
Saharanpur committed manifest error of
law in not directing the police to follow
the mandate of law to exercise their
plenary power of investigation as was
prayed by the revisionist through the said
application under Section 156(3) Cr.P.C.
It is not the law that if an application
under Section 156(3) is filed disclosing
commission of cognizable offences the
Magistrate should leave the police to act
arbitrarily by not directing to register the
F.I.R. The Magistrate concerned was
expected to follow the mandate of law
and direct the police to register the F.I.R.
In this case the Magistrate by not
directing the police to register the F.I.R.
of the cognizable offence committed
manifest error of law and did not exercise
his jurisdiction properly in law. The
victim never wanted to file a complaint
and there may be thousands of reasons for
the same including the fact that the
accused are musclemen and the victim
was not in position to bring the witness to
the court of law to support her version.
The Judicial Magistrate-Ist Saharnpur
without looking into the law laid down by
the Apex Court in state of Haryana and
others versus Bhajan Lal and others;
1992 SCC (Criminal) 426 and in other
similar judgments of the Apex Court has
passed the impugned order on 16/10/2006
in the said Misc. Application No. 54 of
2006, under Section 156(3) Cr.P.C. filed
by the revisionist Sitari Begam, which
cannot be sustained and is hereby set
aside. The matter is recommended back
to him decide the application afresh in
accordance with law.

3.
With the aforesaid direction revision
is allowed at the admission stage.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2006

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No.46861 of 2005

Satish Kumar

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri K.C. Shukla
Sri Rakesh Kumar Singh
Sri Pradeep Verma

Counsel for the Respondents:
Sri A.K. Singh
Sri C.K. Rai
S.C.

Uttar
Pradesh
Secondary
Education
(Service Selection Board) Act 1982 read
with U.P. Secondary Education Service
Selection Board Rules 1998-Adjustment
of earlier selected candidate against
unadvertised
vacancy
whether
possible?-held-'No'-decision
of
single
Judge in case of Savita Gupta-overruled.
232 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(B)
Whether
the
U.P.
Secondary
Education Service Selection Board is
empowered to direct for adjustment
against the vacancy although intimated
and notified but not advertised with the
aid of G.O. dated 12.3.2001? held-'No'.

Held: Para 33

Therefore, it is evident that subordinate
legislation cannot override the statutory
rules nor can it curtail the content and
scope of the substantive provision for or
under which it has been made.

For the reasons and the conclusions
drawn
hereinabove,
our
answer
to
Question No. 1 is:

"An unadvertised vacancy cannot be
filled up from amongst the candidate
who has been selected in any previous
selections and to that extent we declare
that the pronouncement of the learned
Single Judge in the case of Savita Gupta
Vs. State of U.P. & Ors., 2004 (2) UPLBEC
2739, does not lay down the law
correctly and is hereby overruled."

and to Question No.2 is:

"The U.P. Secondary Education Services
Selection Board constituted under the
U.P. Act No.5 of the 1982 cannot, with
the aid of the Government Order dated
12th March, 2001, order any adjustment
in respect of a vacancy, which has been
intimated
and
notified
but
not
advertised".
Case law discussed:
AIR 1996 sC-976, 1994 (Supp.) SCC-591, 1996
(4) SCC-319, AIR 1999 SC-1701, 1992 (Supp.)
3 SCC-84, AIR 1998 SC-18, 2001 (10) SCC237, 2005 (4) SCC-148, AIR 2001 SC-2900,
2005 (4) SCC-148, 2003 (1) ESC-53, 2005 (4)
SCC-154,
2006
(3)
SCC-330,
W.P.
No.21245/2000 decided on 11.05.2005, (1876)
1 CH. D.-426, AIR 2001 SC-1512, AIR 2000
sC-2281, AIR 2004 SC-1657, AIR 1968 SC-49,
AIR 1977 SC-757, AIR 1990 SC-166, AIR 1991
SC-2288, AIR 1998 SC-431, AIR 1961 SC-757,
AIR 1981 SC-711, (1994) 1 SCC-269, 2001 (5)
SCC-581, 2002 (4) SCC-380, 2005 (2) SCC720, 2006 (5) SCC-789

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This reference has arisen out of
the order dated 25th August, 2005,
wherein a learned Single Judge of this
Court has referred the following questions
to be answered by this Bench, as
nominated by Hon'ble the Chief Justice:-

1. Whether an unadvertised vacancy
can be filled up from amongst the
candidates, who have been selected
in the earlier selection?

2. Whether under U.P. Act No.5 of
1982 or under U.P. Secondary
Education Service Selection Board
Rules, 1998, there is any authority
vested with the U.P. Secondary
Education Service Selection Board to
direct for adjustment of candidates
who have been selected but could not
join for one reason or the other, to
any
other
institution,
vacancy
whereof has been notified but not
advertised?

2. The aforesaid questions relate to
filling up of an unadvertised vacancy of a
Lecturer in an Intermediate College, the
selection whereof is governed by the
provisions of the Uttar Pradesh Secondary
Education (Services Selection Board) Act,
1982 (U.P. Act No.5 of 1982) (hereinafter
called the ''Act') and U.P. Secondary
Education Service Selection Board Rules,
1998 (hereinafter called the ''Rules').

3. The occasion for this reference
has arisen on account of the decision of a
learned Single Judge in the case of Savita
Gupta Vs. State of U.P. & Ors., 2004 (2)
1 All] Satish Kumar V. State of U.P. and others
233
UPLBEC 2739, wherein it has been held
that if the vacancy has been requisitioned
and the Management has notified it to the
Board under the provisions of the
aforesaid Act, then in that event, the said
vacancy can be offered to a selected
candidate even if the vacancy was not
advertised by the Board. This decision
was cited on behalf of the petitioner
where after the learned Single Judge, in
the instant case, for the reasons stated in
the referring order, has after respectfully
disagreeing with the said judgment,
framed the questions aforesaid for being
answered by this Bench.

4. The learned Single Judge in the
case of Savita Gupta (supra) was
considering the case of a teacher, who
was claiming promotion on the post and
whose claim had been returned by the
District Inspector of Schools after the said
vacancy
had
been
offered
to
the
respondent therein, who was a candidate
selected by the Board through direct
recruitment and whose adjustment was
sought to be made in terms of the
Government Order dated 12th March,
2001. The learned Single Judge held that
once a vacancy was notified to the Board
for selection by way of direct recruitment,
then it was not open to the Committee to
consider the case of any promotion
against the said post and once the vacancy
had been notified, it was the Board alone
which could have filled up the said
vacancy. The Court further held that this
would advance the cause and purpose of
selection by way of direct recruitment in
accordance with the object of the said
Act. It was further held that the provisions
of the Act and the Rules did not prohibit
or create any hindrance for making such
adjustments and, therefore, it cannot be
said that the recommendation made
against an unadvertised vacancy would, in
any way, violate the provisions of the Act
and the Rules. The learned Single Judge
distinguished the ratio of the decision of
the Hon'ble Apex Court in the case of
Kamlesh Kumar Sharma Vs. Yogesh
Kumar Gupta, AIR 1998 SC 1021 on the
ground that that was a case pertaining to
selections under the provisions of U.P.
Higher Education Services Commission
Act, 1980 and the Rules framed there
under, which made a provision for a
definite life of the select list. The learned
Single Judge went on to distinguish the
said decision that in the Rules under
consideration and in the case under U.P.
Secondary
Education
Service
Commission Act, there was no such
provision, providing the life of the list,
therefore, the Board did not commit any
error in making adjustment against the
said post. The Court held that in the
absence of any such restriction under the
Act and the Rules under consideration, it
cannot be said that the selection of the
candidate and his or her adjustment was
invalid. In effect, the conclusion drawn
was that such an interpretation serves the
object and purpose of the Act and Rules,
referred to hereinabove. The action of the
Board in making the recommendation
against an unadvertised vacancy was
upheld.

5. Heard Shri Pradeep Verma,
learned counsel for the petitioner and Shri
Amit Kumar Singh for respondent no.7
and Shri C.K. Rai, learned Standing
Counsel for the State.

6. The gist of the argument of the
learned counsel for the petitioner is that
once a vacancy stood notified to the
Board, though might have occurred
subsequent to the advertisement issued by
234 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the Board, the Board has a right to fill up
the said vacancy recommending the name
of the selected candidate from the panel
prepared
in
pursuance
of
the
advertisement issued prior to the date of
occurrence of the vacancy, as it does not
adversely affect any person and further
guarantees avoidance of any kind of
nepotism and corruption, therefore, both
the questions should be answered in
affirmative.

7. On the other hand, it has been
argued by the counsel for respondent no.7
that
if
a
person
attains
eligibility
subsequent to the date of advertisement
and if the vacancy so occurred after the
advertisement is filled up by the panel
prepared
in
pursuance
of
the
advertisement issued prior to occurrence
of the vacancy, it would violate the
fundamental rights guaranteed under
Articles 14 and 16 of the Constitution of
India, of such persons who were not
eligible to apply in pursuance of the
advertisement made prior to occurrence of
the vacancy. Therefore, adjustment in
such facts and circumstances is not
permissible and, therefore, both the
questions should be answered in negative.

8. We have considered the rival
submissions made by learned counsel for
the parties and perused the record.

In Ashok Kumar & Ors. Vs.
Chairman, Banking Service Recruitment
Board & Ors., AIR 1996 SC 976, the
Supreme Court held as under:-

"5. Article 14 read with Article 16
(1)
of
the
Constitution
enshrines
fundamental right to every citizen to
claim consideration for appointment to a
post under the State. Therefore, vacant
posts arising or expected should be
notified inviting applications from all
eligible candidates to be considered for
their selection in accordance with their
merit.
The
recruitment
of
the
candidates in excess of the notified
vacancies is a denial and deprivation of
the constitutional right under Article
14 read with Article 16 (1) of the
Constitution.......Boards should notify the
existing and excepted vacancies and the
Recruitment
Board
should
get
advertisement published and recruitment
should strictly be made by the respective
Boards in accordance with the procedure
to the notified vacancies but not to any
vacancies that may arise during the
process of selection". (Emphasis added)

9. In Gujarat State Deputy Executive
Engineer's Association Vs. State of
Gujarat & Ors., 1994 Suppl. (2) SCC 591,
the Hon'ble Supreme Court quashed the
appointments made over and above the
vacancies advertised holding that such an
action
was
neither
permissible
nor
desirable for the reason that it would
amount to 'improper exercise of power'
and only in a rare and exceptional
circumstance and in emergent situation,
this rule can be deviated from and it can
be done only after adopting policy
decision based on some rational as the
authority cannot fill up more posts than
advertised as a matter of course.

10. In Prem Singh & Ors. Vs.
Haryana State electricity Board & Ors.,
(1996) 4 SCC 319, the Apex court
observed as under-

".........The selection process by way
of requisition and advertisement can be
started for clear vacancies and also for
anticipated vacancies but not for future
1 All] Satish Kumar V. State of U.P. and others
235
vacancies.
If
the
requisition
and
advertisement are for a certain number
of posts only, the State cannot make
more appointments than the number of
posts advertised........... State can deviate
from
the
advertisement
and
make
appointments on the posts falling vacant
thereafter in exceptional circumstances
only or in an emergent situation and that
too by taking a policy decision in that
behalf." (Emphasis added).

11. The said judgment in Prem
Singh was followed with approval by the
Hon'ble Supreme Court in Virendrer
Singh Hooda Vs. State of Haryana, AIR
1999 SC 1701.

12. In Union of India & Ors. Vs.
Ishwar Singh Khatri & Ors, 1992 Suppl.
(3) SCC 84, the Court held that selected
candidate have right to appointment only
against 'vacancies notified' and that too
during the life of the select list as the
panel of selected candidate cannot be
valid of indefinite period. Moreover,
impaneled candidates "In any event
cannot have a right against future
vacancies." In State of Bihar & Ors. Vs.
The Secretariat, Assistant S.E. Union,
1986 & Ors, AIR 1994 SC 736, the Apex
court held that " a person who is selected
does not, on account of being empanelled
alone, acquire any indefeasible right of
appointment. Empanelment is at the best a
condition of eligibility for purposes of
appointment, and by itself does not
amount to selection or create a vested
right to be appointed unless relevant
service rules say to the contrary." In the
said case as the selection process was
completed
in
five
years
after
the
publication of the advertisement, the
contention was raised that the empanelled
candidates deserved to be appointed over
and above the vacancies notified. The
Hon'ble Supreme Court rejected the
contention observing that keeping the
selection process pending for long and not
issuing
any
fresh
advertisement
in
between, may not be justified but offering
the posts in such a manner would
adversely prejudice the cause of those
candidates who achieved eligibility in the
meantime.

13. In Surinder Singh & Ors. Vs.
State of Punjab & Ors., AIR 1998 SC 18,
the Apex Court held as under:-

"A waiting list, prepared in an
examination
conducted
by
the
Commission does not furnish a source of
recruitment. It is operative only for the
contingency that if any of the selected
candidates does not join then the persons
from the waiting list may be pushed UP
and be appointed in the vacancy so caused
or if there is some extreme exigency the
Government may as a matter of policy
decision pick up persons in order of merit
from the waiting list. But the view taken
by the High Court that since the
vacancies have not been worked out
properly, therefore, the candidates
from the waiting list were liable to be
appointed does not appear to be sound.
This practice may result in depriving
those candidates who became eligible for
competing for the vacancies available in
future. If the waiting list in one
examination was to operate as infinite
stock for appointment, there is danger that
the State may resort to the device of not
holding
the
examination
for
years
together and pick up candidates from the
waiting list as and when required. The
Constitutional discipline requires that this
Court should not permit such improper
exercise of power which may result in
236 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
creating a vested interest and perpetuating
the waiting list for the candidates of one
examination at the cost of entire set of
fresh candidates either from the open or
even from service.....Exercise of such
power has to be tested on the touch-stone
of reasonableness.....It is not a matter of
course that the authority can fill up
more posts than advertised." (Emphasis
added).

In Kamlesh Kumar Sharma (supra),
the Apex Court similarly observed as
under:-

"As per the scheme of the Act and
the
aforesaid
provisions,
for
each
academic
year
in
question,
the
management has to intimate the existing
vacancies and vacancies likely to be
caused by the end of the ensuing
academic year in question. Thereafter, the
Director shall notify the same to the
Commission and the Commission, in turn,
will invite applications by giving wide
publicity in the State of such vacancies.
The vacancies cannot be filled except
by
following
the
procedure
as
contained therein. Sub-section (1) of
Section 12 has incorporated in strong
words that any appointment made in
contravention of the provisions of the Act
shall be void. This was to ensure to backdoor entry but selection only as provided
under the said sections." (Emphasis
added).

14. Similar view has been reiterated
by the Hon'ble Supreme Court in Sri Kant
Tripathi Vs. State of U.P. & Ors., (2001)
10 SCC 237; and State of J & K Vs.
Sanjeev Kumar & Ors., (2005) 4 SCC
148.

In State of Punjab Vs. Raghbir
Chand Sharma & Ors., AIR 2001 SC
2900, the Apex Court examined the case
where only one post was advertised and
the candidate whose name appeared at
Serial No.1 in the select list joined the
post, but subsequently resigned. The
Court rejected the contention that post can
be filled up offering the appointment to
the next candidate in the select list
observing as under:-

"With the appointment of the first
candidate for the only post in respect of
which the consideration came to be made
and select list prepared, the panel ceased
to exist and has outlived its utility and at
any rate, no one else in the panel can
legitimately contend that he should have
been offered appointment either in the
vacancy arising on account of the
subsequent resignation of the person
appointed from the panel or any other
vacancies arising subsequently."

15. Similar view has been reiterated
in State of Jammu & Kashmir Vs. Sanjeev
Kumar, (2005) 4 SCC 148; and Secretary,
Andhra
Pradesh
Public
Service
Commission Vs. G. Swapna, (2005) 4
SCC 154, wherein the Court dealt with
the powers of the employer or Board in
relation to filling up existing vacancies,
notified vacancies and future vacancies
and held that the question of making
appointment beyond advertised vacancy
does not arise.

16. In State of U.P. & Ors. Vs.
Rakjumar Sharma & Ors., (2006) 3 SCC
330, the Hon'ble Apex Court, placing
reliance upon a larger number of its
earlier judgments, held that filling up
vacancies over and above the number of
vacancies advertised, would be violative
1 All] Satish Kumar V. State of U.P. and others
237
of fundamental rights guaranteed under
Articles 14 and 16 of the Constitution, for
the reason that persons, who acquire
eligibility
subsequent
to
the
advertisement,
could
not
have
an
opportunity to make applications.

17. Several Divisions Benches of
this Court dealing with the issue of higher
education service, have taken the same
view, in Dr. Radhey Shyam Sharma Vs.
Director
(Higher
Education)
U.P.
Allahabad, 2003 (1) ESC 35; Dr. Prakash
Chandra Kamboj & Ors. Vs. Committee
of Management of Bareilly College,
Bareilly & Ors., 2003 (4) ESC 2363; and
Writ Petition No. 21245 of 2000,
Dr.Kanta Srivastava Vs. Director of
Higher Education, U.P. Allahabad & Ors.,
decided on 11.05.2005.

18. In order to answer the aforesaid
questions, it is necessary to examine the
scheme of the Act and the Rules framed
thereunder.

19. Section 10 of the Act provides
that for filling up the vacancy by direct
recruitment,
the
Management
shall
determine the number of vacancies taking
into
consideration
the
policy
of
reservation and notify the same to the
Board and the said vacancies shall be
filled up by adopting the procedure as
may be prescribed. Section 11 of the Act
provides for preparation of the panel after
holding the examination/interview of the
candidates who are found most suitable
for appointment.

20. In order to determine as what is
the procedure prescribed, reference may
be made to the relevant Rules. Rule 11
provides
for
determination
and
notification
of
vacancies
by
the
Committee of Management through the
Inspector of Schools to the Board. Rule
12 provides that on receiving such
vacancies, the Board shall advertise the
vacancies taking into consideration the
reservation policy etc., at least in two
daily newspapers, having wide circulation
in the State and call for applications from
the eligible candidates. The applicants are
also asked to give the choice of three
institutions in order of preference. After
receiving the applications, the Board shall
scrutinize the same and subsequently, it
may hold the examination/interview etc.
for their evaluation and a list shall be
prepared on the basis of merit categorywise.
Thereafter,
the
Board,
after
preparing the panel in accordance with the
Rules, allocate the institutions to the
selected candidates according to their
preference. In case a candidate cannot be
allocated an institution as per his
choice/preference for the reason that other
candidates had been placed in the merit
list above to him, the Board may allocate
him any other institution as it may deem
fit. The panel so prepared shall be sent to
the Inspector of Schools for further
action. Rule 13 further provides for
intimation
of
names
of
selected
candidates
to
the
Committee
of
Management for issuance of appointment
letters.

Section 16 (1) of the Act provides for
appointment to be made only on the
recommendation of the Board. However,
sub-section 2 thereof reads as under:-

"Any
appointment
made
in
contravention of the provisions of subsection (1) shall be void."

21. The cumulative effect of reading
the Act and the Rules together is that the
238 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Act and Rules provide for a complete
Code and none of its chain is removable.
The procedure starts with the intimation
of the vacancy by the Committee of
Management to the Board and ends with
issuance of the appointment letter to the
selected candidate by the Committee of
Management. Any appointment made in
violation of the procedure so prescribed
would be de hors the Rules and rendered
void in view of the provisions of Section
16 (2) of the Act.

22. There is no dispute to the settled
legal
propositions
that
statutory
provisions require to be given strict
adherence and authority is bound to act in
the manner prescribed under the Statute.

23. When the statute provides for a
particular procedure, the authority has to
follow the same and cannot be permitted
to act in contravention thereof. The
uncontroverted legal position is that
where a Statute requires thing to be done
in a certain way, the thing must be done in
that way alone or not at all. Other
methods or mode of performance are
impliedly and necessarily forbidden. The
aforesaid settled legal proposition is based
on a legal maxim "Expressio unius est
exclusio alterius", meaning thereby that if
a statute provides for a thing to be done in
a particular manner, then it has to be done
in that manner and in no other manner and
following other course is not permissible.
This
maxim
has
consistently
been
followed, as is evident from the cases
referred to above. (Vide Tailor Vs.
Taylor, (1876) 1 Ch.D. 426; State of
Bihar & Anr. Vs. J.A.C. Saldanna & Ors.,
AIR 1980 SC 326; Haresh Dayaram
Thakur Vs. State of Maharashtra & Ors.,
AIR 2000 SC 2281; Dhanajaya Reddy Vs.
State of Karnataka, AIR 2001 SC 1512;
and Ram Phal Kundu Vs. Kamal Sharma,
AIR 2004 SC 1657).

24. The learned Single Judge in
Savita Gupta (supra) placing reliance
upon the Government Order dated 12th
March, 2001 has proceeded to hold that
such an adjustment is permissible and is
not prohibited nor is there any bar under
the Act and the Rules to provide for the
requisitioned and intimated vacancies to
be filled up from amongst the selected
candidates of the previous selections who
could not get appointment even though
the post had not been advertised. The
learned Single Judge has held that the
purpose and object of the Act and the
Rules will not be defeated, if such an
interpretation
is
given.
We
have
scrutinized the same microscopically. The
said Government Order refers to a grave
concern
over
the
irregularities
and
illegalities in filling up the vacancies
because
of
non-cooperation
of
the
Committee
of
Management
of
the
educational institutions. Therefore, by this
order, a Committee consisting of three
officials named therein was constituted to
examine particular cases where the
vacancies could not be filled up because
of the attitude of non-cooperation adopted
by the Committees of Management. The
said Order provided that the appointments
must be made in such institutions keeping
in mind the reservation policy, without
any further delay. The Government Order
seems to have been issued to remove any
action of nepotism and corruption keeping
in view the adamant attitude adopted by
the Committees of Management. It does
not provide any procedure other than the
statutory
provisions
referred
to
hereinabove.
However,
the
said
Government Order, a little before the
penultimate paragraph states that in the
1 All] Satish Kumar V. State of U.P. and others
239
event a candidate is unable to join against
the post of his preference, then in that
event an order for adjustment of such a
candidate shall be passed subject to the
Rules of reservation. The Act and Rules
do not indicate any power vested with the
State Government for constituting any
such Committee through a Government
Order. The Act makes a provision for the
promulgation of regulations by the
Selection Board with the approval of the
State Government and in Section 35, the
State Government has been empowered
by way of notification to make Rules for
carrying out the purpose of the Act. Apart
from this, there is no other power vested
in
the
State
Government
to
issue
Government Orders for creating an
authority
other
than
the
authorities
referred to in the Rules, in order to enable
such an authority to issue orders for
making adjustment in the event a
candidate is unable to join the post which
has been allocated to him. For this
purpose, the statutory provisions are
already in existence as contained in
Section 17 of the Act for ensuring the
appointment and joining of a selected
candidate and to take appropriate action in
the matter. This 3rd alternative of
adjustment
as
indicated
in
the
Government Order dated 12th March
2001 is nowhere authorized under the Act
and the Rules. As indicated hereinabove,
Rules 1998 make a specific provision for
the manner in which a candidate has to be
permitted to join in an institution. Rules
12 and 13 are exhaustive in nature and
sub-rule 4 of Rule 13 empowers the Joint
Director of Education to monitor and
ensure that the candidates selected by the
Board are able to join the institution in the
specified time for this purpose. For this,
the
Joint
Director
has
also
been
empowered to issue necessary directions
to the District Inspector of Schools as he
may think proper. The joining of a
candidate has to be in accordance with his
merit and preference offered by him in
respect of the post available.

25. The question therefore, is, that
does the Government Order dated 12th
March 2001 permit adjustment of a
selected candidate against a vacancy
which was not advertised. Rule 12 (1)
clearly prescribes the advertisement of the
vacancies
in
at
least
two
daily
newspapers. Rule 12 (1) of the Rules is
quoted herein below for ready reference:-

"12.
Procedure
for
direct
recruitment.- (1) The Board shall, in
respect of the vacancies to be filled up by
direct
recruitment,
advertise
the
vacancies including those reserved for
candidates
belonging
to
Scheduled
Castes, Scheduled Tribes and other
backward classes of citizens in at least
two daily newspapers, having wide
circulation in the State, and call for the
applications for being considered for
selection in the proforma published in the
advertisement. For the post of Principal of
an Intermediate College or the Head
Master of a High School, the name and
place of the institution shall also be
mentioned in the advertisement and the
candidates shall be required to give the
choice of not more than three institutions
in order of preference and if he wished to
be
considered
for
any
particular
institution or institutions and for no other
institution, he may mention the fact in his
application." (Emphasis added)

26. As discussed hereinabove, the
Act in Section 10 mandates that the
selection will proceed in the manner
prescribed, which clearly means that in
240 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the manner as provided under the Rules.
The prescription has to be by way of
either Regulations or Rules, which cannot
be substituted through the executive
instructions. The above quoted Rule,
therefore, mandates the advertisement of
a post before the applications of the
candidates are scrutinized and selections
held. This leaves no room for doubt that
an unadvertised post cannot be offered to
a candidate who could not have applied as
the post had not been advertised. The
selection against an unadvertised post,
therefore, is not prescribed under the
Rules. The offering of the vacancies by
way of preference, which have been
intimated
and
notified
by
the
Management has to be a subject matter of
advertisement and the vacancy cannot be
filled up by avoiding the advertisement.
This aspect of the matter has not been
effectively noticed and considered by the
learned Single Judge and, therefore, with
respect, we are unable to agree with the
reasoning of the learned Single Judge in
Savita
Gupta's
case.
The
question,
therefore, is not as to whether the object
and purpose of the Act is not being
defeated rather the question is as to what
would be the manner in which the object
and purpose of the Act has to be achieved.
In our opinion and in view of the
discussions made hereinabove, we hold
that the object and purpose of the Act has
to be fulfilled in the manner as prescribed
under the Rules and not by introducing a
method of adjustment, which is not
prescribed under the Rules.

27. One of the reasons given by the
learned Single Judge in Savita Gupta's
case is that since the U.P. Act No.5 of the
1982 and the Rules framed thereunder
does not provide any life for the list of a
selected
candidates,
therefore,
the
candidates so selected, can by offered
appointment against the vacancies, which
have been notified and requisitioned even
if not advertised. The aforesaid reasoning
overlooks the fact that the Rules do not
indicate that candidates selected in respect
of the vacancies occurring in the year of
recruitment if not appointed, will continue
to form a perennial pool for the source of
recruitment. So far as the question of the
life of the select list is concerned, the
same is not a relevant criteria in our
considered opinion for judging the issue
as to whether an unadvertised vacancy
can be offered to a candidate who had
appeared in the previous selections. To
our mind, the same does not have any
rationale nexus to the object to be
achieved. Selection of a candidate against
a non-advertised vacancy would clearly
violate the fundamental rights guaranteed
under Articles 14 and 16 of the
Constitution as ruled by the Apex Court
in the judgments referred to herein above.
In our opinion, in the event, a vacancy is
not advertised, the same would give a
handle to the Board and the authorities to
indulge into selective discrimination by
offering appointments to such candidates
for whom vacancies were not available
and by discriminating such candidates
who were qualified and had not been able
to apply in the absence of advertisement.

28. Even otherwise, it is settled legal
proposition that the executive instructions
cannot override the statutory provisions.
A Constitution Bench of the Hon'ble
Supreme Court, in B.N. Nagarajan & ors.
Vs. State of Mysore & ors., AIR 1966 SC
1942, has observed as under:-

"It is hardly necessary to mention
that if there is a statutory rule or an Act on
the matter, the executive must abide by
1 All] Satish Kumar V. State of U.P. and others
241
that Act or Rule and it cannot in exercise
of its executive powers under Article 162
of the Constitution ignore or act contrary
to that rule or the Act."

Similarly,
another
Constitution
Bench of the Hon'ble Supreme Court in
Sant Ram Sharma Vs. State of Rajasthan
& Ors., AIR 1967 SC 1910, has observed
as under:-

"It is true that the Government
cannot amend or supersede statutory
Rules by administrative instruction, but if
the Rules are silent on any particular
point, the Government can fill-up the gap
and supplement the rule and issue
instructions not inconsistent with the
Rules already framed."

29. The law laid down above, has
consistently been followed and it is settled
proposition of law that an Authority
cannot
issue
orders/office
memorandum/executive instructions in
contravention of the statutory Rules.
However, instructions can be issued only
to supplement the statutory rules but not
to supplant it. Such instructions should be
subservient to the statutory provisions.
(Vide The Commissioner of Income-tax,
Gujarat Vs. M/s. A. Raman & Co., AIR
1968 SC 49; Union of India & ors. Vs.
Majji Jangammayya & ors., AIR 1977 SC
757; Paluru Ramkrishnaiah & ors. Vs.
Union of India & Anr., AIR 1990 SC 166;
Comptroller & Auditor General of India
& ors. Vs. Mohan Lal Mehrotra & ors.,
AIR
1991
SC
2288;
and
C.
Rangaswamaiah & ors. Vs. Karnataka
Lokayukta & ors., AIR 1998 SC 2496).

30. The Constitution Bench of the
Hon'ble Supreme Court, in Naga People's
Movement of Human Rights Vs. Union of
India., AIR 1998 SC 431, held that the
executive
instructions
are
binding
provided the same have been issued to fill
up
the
gap
between
the
statutory
provisions and are not inconsistent with
the said provisions.

31. Thus, it is settled law that
executive instructions cannot amend or
supersede the statutory rules or add
something therein. The orders cannot be
issued in contravention of the statutory
rules for the reason that an administrative
instruction is not a statutory rule nor does
it have any force of law; while statutory
Rules have full force of law as held by the
Constitution
Bench
of
the
Hon'ble
Supreme Court in State of U.P. & ors. Vs.
Babu Ram Upadhya, AIR 1961 SC 751;
and State of Tamil Nadu Vs. M/s. Hind
Stone etc. etc., AIR 1981 SC 711.

32. Similar view has been reiterated
in Union of India & Anr. Vs. Amrik
Singh & Ors., (1994) 1 SCC 269; Swapan
Kumar Pal & Ors. Vs. Samitabhar
Chakraborty & Ors., (2001) 5 SCC 581;
Khet Singh Vs. Union of India, (2002) 4
SCC 380; Laxminarayan R. Bhattad &
Ors. Vs. State of Maharashtra & Anr.,
(2003) 5 SCC 413; ITW Signode India
Ltd. Vs. Collector of Central Excise,
(2004) 3 SCC 48; Dr. Mahendra Prasad
Singh Vs. Chairman Bihar legislative
Council, (2004) 8 SCC 747; Pahwa
Chemicals (P) Ltd. Vs. Commissioner of
Central Excise, New Delhi, (2005) 2 SCC
720; K.P. Sudhakaran & Anr. Vs. State of
Kerala & Ors.,(2006) 5 SCC 386; and
K.K. Parmar Vs. High Court of Gujrat &
Ors., (2006) 5 SCC 789; and it has been
observed that statutory rules create
enforceable rights which cannot be taken
away by issuing executive instructions.
242 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
33. Therefore, it is evident that
subordinate legislation cannot override
the statutory rules nor can it curtail the
content and scope of the substantive
provision for or under which it has been
made.

For the reasons and the conclusions
drawn
hereinabove,
our
answer
to
Question No. 1 is:

"An unadvertised vacancy cannot be
filled up from amongst the candidate who
has been selected in any previous
selections and to that extent we declare
that the pronouncement of the learned
Single Judge in the case of Savita Gupta
Vs. State of U.P. & Ors., 2004 (2)
UPLBEC 2739, does not lay down the
law correctly and is hereby overruled."

and to Question No.2 is :

"The U.P. Secondary Education
Services Selection Board constituted
under the U.P. Act No.5 of the 1982
cannot, with the aid of the Government
Order dated 12th March, 2001, order any
adjustment in respect of a vacancy, which
has been intimated and notified but not
advertised".

Shri Pradeep Verma, learned counsel
for the petitioner states that the petitioner
does not stake any claim further against
the post in D.A.V. College, Varanasi for
the reason that the said post has already
been filled up and he, therefore, prays that
the
writ
petition
be
dismissed
as
withdrawn.

34. It is a settled legal proposition
that the Court answering the reference
should not decide the case on merit and
after answering the question, the matter
should be sent back to the appropriate
Bench
for
proper
adjudication/final
disposal in the light of law laid down
therein. As in the instant case, the
petitioner does not want to press the
petition, no purpose would be served,
sending the matter back to the Court
concerned. The petition is accordingly
dismissed as withdrawn.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.58649 of 2006

State of U.P. and another ...Petitioners
Versus
Ram Kishun and others ...Respondents

Counsel for the Petitioners:
Sri Shiv Nath Singh (Addl.S.C.)

Counsel for the Respondents:

Constitution
of
India-Art.
226-Writ
petition-challenging the order passed by
District Judge-delay about 2 years 124
days-explain given-the file run from one
place to another table-in the case of
government the court should be liberalheld-a bald averment without showing
sufficient cause-before court the private
and government litigants be given equal
treatment-petitioner
can
not
be
entertained on highly belated stage.

Held: Para 10

In my opinion, these averments are
insufficient for the Court to hold that
sufficient cause was made out by the
petitioner for condoning the delay and
for the Court to entertain a petition
beyond the stipulated period. In the
opinion of the Court, on the basis of a
bald averment, sufficient cause has not