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 v. State of U.P. and Ors. 2004 (2) 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 v. Yogesh Kumar Gupta 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 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 cicumstances 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.
9. In Ashok Kumar and Ors. v. Chairman, Banking Service Recruitment Board and Ors. , 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.
10. In Gujarat State Deputy Executive Engineer's Association v. State of Gujarat and 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.
11. In Prem Singh and Ors. v. Haryana State electricity Board and Ors. , 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 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.
12. The said judgment in Prem Singh was followed with approval by the Hon'ble Supreme Court in Virendrer Singh Hooda v. State of Haryana .
13. In Union of India and Ors. v. Ishwar Singh Khatri and 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, impanelled candidates "In any event cannot have a right against future vacancies." In State of Bihar and Ors. v. The Secretariat, Assistant S.E. Union, 1986 and Ors. , 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.
14. In Surinder Singh and Ors. v. State of Punjab and Ors. AIR 1998 SC 18, the Apex Court 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 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.
15. In Kamlesh Kumar Sharma (supra), the Apex Court similarly observed as unden:
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 back-door entry but selection only as provided under the said sections.
17. In State of Punjab v. Raghbir Chand Sharma and Ors. , 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.
18. Similar view has been reiterated in State of Jammu and Kashmir v. Sanjeev Kumar ; and Secretary, Andhra Pradesh Public Service Commission v. G. Swapna , 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.
19. In State of U.P. and Ors. v. Rakjumar Sharma and Ors. , 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 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.
20. Several Divisions Benches of this Court dealing with the issue of higher education service, have taken the same view, in Dr. Radhey Shyam Sharma v. Director (Higher Education) U.P. Allahabad 2003 (1) ESC 35; Dr. Prakash Chandra Kamboj and Ors. v. Committee of Management of Bareilly College, Bareilly and Ors. 2003 (4) ESC 2363; and Writ Petition No. 21245 of 2000, Dr. Kanta Srivastava v. Director of Higher Education, U.P. Allahabad and Ors. decided on 11.05.2005.
21. In order to answer the aforesaid questions, it is necessary to examine the scheme of the Act and the Rules framed thereunder.
22. 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.
23. 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 category-wise. 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.
24. 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 Sub-section (1) shall be void.
25. The cumulative effect of reading the Act and the Rules together, is that the 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.
26. 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.
27. 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 v. Taylor (1876) 1 Ch. D. 426; State of Bihar and Anr. v. J.A.C. Saldanna and Ors. ; Haresh Dayaram Thakur v. State of Maharashtra and Ors. ; Dhanajaya Reddy v. State of Karnataka AIR 2001 SC 1512; and Ram Phal Kundu v. Kamal Sharma .
28. The learned Single Judge in Savita Gupta (supra) placing reliance upon the Government Order dated 12^th 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 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 12^th 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.
29. 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.
30. As discussed hereinabove, the Act in Section 10 mandates that the selection will proceed in the manner prescribed, which clearly means that in 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.
31. 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.
32. 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 and Ors. v. State of Mysore and Ors. , 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 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.
33. Similarly, another Constitution Bench of the Hon'ble Supreme Court in Sant Ram Sharma v. State of Rajasthan and Ors. , 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.
34. 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 v. A. Raman and Co. ; Union of India and Ors. v. Majji Jangammayya and Ors. ; Paluru Ramkrishnaiah and Ors. v. Union of India and Anr. ; Comptroller and Auditor General of India and Ors. v. Mohan Lal Mehrotra and Ors. ; and C. Rangaswamaiah and Ors. v. Karnataka Lokayukta and Ors. .
35. The Constitution Bench of the Hon'ble Supreme Court, in Naga People's Movement of Human Rights v. 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.
36. 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. and Ors. v. Babu Ram Upadhya AIR 1961 SC 751; and State of Tamil Nadu v. Hind Stone etc. etc. .
37. Similar view has been reiterated in Union of India and Anr. v. Amrik Singh and Ors. ; Swapan Kumar Pal and Ors. v. Samitabhar Chakraborty and Ors. ; Khet Singh v. Union of India ; Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr. ; ITW Signode India Ltd. v. Collector of Central Excise ; Dr. Mahendra Prasad Singh v. Chairman Bihar legislative Council ; Pahwa Chemicals (P) Ltd. v. Commissioner of Central Excise, New Delhi ; K.P. Sudhakaran and Anr. v. State of Kerala and Ors; and K.K. Parmar v. High Court of Gujrat and Ors. ; and it has been observed that statutory rules create enforceable rights which cannot be taken away by issuing executive instructions.
38. 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.
39. 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 v. State of U.P. and 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.
40. 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.
41. 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.