Service Law – Appointment of Principal in Non-Government Aided Colleges – Wait-listed Candidate – Change of Place of Posting – Repeal and Savings – Scope of Section 13(4) of the Uttar Pradesh Higher Education Services Commission Act, 1980 – Interpretation of “otherwise” – Validity of acts after repeal of Old Act.
The appellant, a wait-listed candidate for the post of Principal under Advertisement No.49 of 2019, was initially recommended on 03.08.2022 for appointment as Principal in Shri Bajrang P.G. College, Ballia. He did not join the post due to personal/family circumstances and later sought change of posting to Meerut College after vacancy arose there. The Director initially clarified on 17.08.2023 that there existed no provision under the Old Act for change of place of posting after recommendation. Subsequently, after the Uttar Pradesh Education Service Selection Commission Act, 2023 came into force repealing the Old Act, the authorities issued fresh recommendation/orders dated 13.12.2023, 12.01.2024 and 15.01.2024 posting the appellant at Meerut College. The Officiating Principal challenged the same. High Court quashed the orders. Supreme Court affirmed.
Held:
A. Interpretation of Section 13(4) of Old Act – “Otherwise” cannot be interpreted broadly.
The expression “otherwise” occurring in Section 13(4) must be read ejusdem generis with “death” and “resignation” and applies only to unforeseen vacancies occurring during validity of select list. It cannot be used to permit a wait-listed candidate, already recommended elsewhere, to seek fresh posting at another institution merely because he chose not to join earlier posting. Paras 20-21.
B. Once recommendation issued under Section 13(3), candidate cannot seek substitution of institution.
After recommendation dated 03.08.2022, appellant neither joined the post nor pursued issuance of appointment order from Ballia College. Instead, he waited for preferred vacancies and sought transfer/change of placement. Such conduct frustrates statutory scheme under Sections 13(3) and 14 of the Old Act. Paras 18-20.
C. Repeal of Old Act by New Act extinguished further exercise of powers under repealed statute.
After commencement of the Uttar Pradesh Education Service Selection Commission Act, 2023 on 21.08.2023, the authorities could not revive or operate old select list for fresh recommendation/change of posting. Any further appointment process had to conform to Sections 10 and 11 of the New Act. Paras 23-24.
D. Saving clause preserves only acts already done, not fresh actions under repealed law.
Section 31(2) of the New Act read with Section 6 of the U.P. General Clauses Act protects only acts already validly done prior to repeal. The only protected act was recommendation dated 03.08.2022. Fresh recommendation/orders issued after repeal were unsustainable. Paras 22-24.
E. Illegal administrative action can be challenged even by Officiating Principal.
Where action of authorities is ex facie illegal and contrary to statutory provisions, objection regarding locus standi loses significance. Paras 27-28.
F. State authorities expected to assist Court fairly.
State officials are duty bound to place correct legal and factual position before Court and cannot support unlawful administrative action contrary to statute. Para 26.
Ratio Decidendi
A wait-listed candidate who has already been recommended for appointment under Section 13(3) of the Uttar Pradesh Higher Education Services Commission Act, 1980 cannot invoke Section 13(4) to seek fresh recommendation/change of posting merely because he voluntarily failed to join the originally allotted institution. Further, after repeal of the Old Act by the Uttar Pradesh Education Service Selection Commission Act, 2023, authorities cannot exercise powers traceable to the repealed statute except to the limited extent protected by the saving clause in respect of acts already completed before repeal.
ANALYSIS OF LAW
1. Scheme of Sections 12, 13 and 14 of the Old Act
The Supreme Court undertook a structural interpretation of the statutory framework governing appointments in aided colleges. The Court noted:
- Vacancies are identified and notified under Section 12.
- Commission prepares select/wait list under Section 13(1).
- Director intimates names for appointment under Section 13(3).
- Management issues appointment order under Section 14.
- Fresh recommendation can arise only in contingencies contemplated under Section 13(4).
The Court emphasized that the legislative scheme does not permit open-ended mobility or institutional choice by wait-listed candidates after recommendation.
Key Legal Principle:
Recommendation under Section 13(3) culminates the selection process for that candidate vis-à-vis that institution.
Paras 13-15.
2. Interpretation of the word “otherwise”
The central legal issue concerned the meaning of “otherwise” in Section 13(4).
The appellant attempted to argue that since vacancy arose in Meerut College during validity of select list, he could be adjusted there.
The Court rejected this construction by applying:
- Doctrine of ejusdem generis
- Legislative intent analysis
- Earlier precedent in Kamlesh Kumar Sharma v. Yogesh Kumar Gupta.
The Court held that:
“otherwise” refers only to unforeseen vacancies akin to death, resignation, invalidation, long leave, or non-joining.
It does not include:
- voluntary refusal to join,
- preference-based relocation,
- change of posting on compassionate or personal grounds.
Importance of the ruling:
The Court preserved integrity of:
- advertised vacancies,
- merit-based institutional allocation,
- equality in public employment under Articles 14 and 16.
Paras 20-21.
3. Effect of Repeal and Savings Clause
The Court gave detailed interpretation to:
- Section 31 of the New Act,
- Section 6 of the U.P. General Clauses Act.
Court’s reasoning:
The repeal clause did not revive or continue the old panel indefinitely.
Only completed acts survive repeal.
The only surviving act was:
- recommendation dated 03.08.2022.
What was not protected:
- fresh posting orders,
- altered recommendations,
- revival of old list after repeal.
Thus:
- recommendation after 21.08.2023 lacked statutory authority.
Important principle:
A saving clause preserves completed legal acts, not future exercises of repealed power.
Paras 22-24.
4. Administrative Law Dimension
The Court strongly criticized the conduct of State authorities.
The authorities:
- initially stated no legal provision existed for change of posting,
- later reversed position,
- attempted to support appellant contrary to statute.
The Court observed that State litigation conduct must:
- assist Court fairly,
- reflect statutory fidelity,
- avoid partisan illegality.
This part of judgment reinforces:
- doctrine of public trust,
- fairness in State litigation,
- constitutional obligation of State officers.
Para 26.
ANALYSIS OF FACTS
Chronological factual findings relied upon by Supreme Court
(i) Selection and wait list
The appellant was merely a wait-listed candidate at Sl.No.59.
Para 4.
(ii) First recommendation
Director validly recommended appellant to Ballia College on 03.08.2022.
Para 5.
(iii) Appellant voluntarily did not join
The Court treated this fact as decisive.
The appellant himself admitted:
“Due to family circumstances, I have not taken charge…”
The Court repeatedly stressed:
- there was no denial of appointment by management,
- appellant himself remained inactive.
Paras 18-19.
(iv) Representation seeking preferred vacancy
After noticing vacancies elsewhere, appellant sought posting in alternative colleges including Meerut College.
The Court treated this as an attempt to bypass statutory allocation process.
Para 19-20.
(v) New Act came into force
Before fresh recommendation was issued, Old Act already stood repealed.
Hence all later orders lacked jurisdiction.
Paras 22-24.
RATIO DECIDENDI
Primary Ratio
A candidate already recommended for appointment under Section 13(3) of the Uttar Pradesh Higher Education Services Commission Act, 1980 cannot subsequently seek fresh recommendation or change of institution under Section 13(4) merely because he voluntarily failed to join the originally allotted post.
After repeal of the Uttar Pradesh Higher Education Services Commission Act, 1980 by the Uttar Pradesh Education Service Selection Commission Act, 2023, no fresh exercise of powers under the repealed Act can be undertaken except to the extent expressly saved by Section 31 of the New Act.
The expression “otherwise” in Section 13(4) must receive restricted ejusdem generis interpretation and applies only to unforeseen vacancies analogous to death, resignation, invalidation, or non-joining, and not to administrative rearrangement or preference-based reposting.
Final Outcome
Appeal dismissed. Orders of learned Single Judge and Division Bench upheld. Parties directed to bear own costs. Paras 25 & 28
