Post-Repeal Invalidity of Old-Act Posting Changes: Section 31 Savings Do Not Revive Section 13(4) Powers or Old Panels

1) Introduction

Case: MANOJ KUMAR RAWAT v. STATE OF UP & ORS. (Supreme Court of India, 19-05-2026).
Parties: The appellant (a waitlisted candidate for appointment as Principal in aided PG/UG colleges in Uttar Pradesh) versus the State of Uttar Pradesh and others; the contesting private respondent (Respondent No. 6) was the Officiating Principal of Meerut College, Meerut.

Background: Under Advertisement No. 49 of 2019, the Commission published a select list (290) and waitlist (73) on 05.10.2021. The appellant was waitlisted (Sl. No. 59). The Director recommended him on 03.08.2022 for appointment as Principal at Shri Bajrang P.G. College, Ballia. The appellant did not pursue joining there and later sought a change of posting to another institution, including Meerut College, citing family circumstances.

Key issues:

  • Whether Section 13(4) of the Uttar Pradesh Higher Education Services Commission Act, 1980 (“Old Act”) permits a change of posting / fresh recommendation for a waitlisted candidate already recommended elsewhere, consistent with Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others.
  • Whether, after enforcement of the Uttar Pradesh Education Service Selection Commission Act, 2023 (“New Act”) (effective 21.08.2023) repealing the Old Act, the later orders/recommendations (13.12.2023; 12.01.2024; 15.01.2024) could be sustained under the New Act’s scheme and savings clause.

2) Summary of the Judgment

The Supreme Court dismissed the appeal and upheld the High Court’s quashing of the posting-change orders. It held that:

  • Section 13(4) of the Old Act cannot be used to engineer a change of posting for a waitlisted candidate who was already recommended for appointment at another college and then did not join; “otherwise” in Section 13(4) is not a carte blanche to reallocate candidates based on later arising preferences.
  • After the New Act commenced (21.08.2023) and repealed the Old Act, the authorities could not rely on the Old Act’s panel/list or exercise powers akin to Section 13(4) to issue new recommendations/placement changes in December 2023 and January 2024.
  • The “repeal and savings” provision in Section 31(2) of the New Act saves only actions actually done under the Old Act (here, the 03.08.2022 recommendation), and does not validate fresh post-repeal actions that the New Act does not contemplate.
  • The Court strongly criticized the State’s officers for adopting an “unlawful stand” supporting the appellant, and suggested administrative scrutiny by the Chief Secretary, though no directions were issued since the officers were not parties.
  • On locus standi of the Officiating Principal, the Court noted Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others supports such locus in this statutory context; however, given the “writ large” illegality, the Court left the locus issue open for an appropriate case.

3) Analysis

3.1 Precedents Cited

(A) Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others (1998) 3 SCC 45

This was the controlling authority on the meaning of the word “otherwise” in Section 13(4) of the Old Act. The Supreme Court reiterated that:

  • “Otherwise” cannot be read expansively to defeat the Act’s design of filling posts through advertised vacancies and structured recommendations.
  • The term must be read ejusdem generis—i.e., limited to events similar to “death” and “resignation”, covering unforeseen vacancies that could not have been anticipated under the vacancy-notification mechanism (Section 12(2) of the Old Act).

Influence on the present case: The appellant’s attempt to treat his own non-joining (and later preference-based request) as bringing him within “otherwise” was rejected. The Court treated Section 13(4) as a mechanism to handle unforeseen vacancies, not to permit reposting or supersession of an earlier recommendation due to personal convenience.

(B) Anand Sharadchandra Oka v. University Of Mumbai and Others (2008) 5 SCC 217

(C) Ayaaubkhan Noorkhan Pathan v. State Of Maharashtra and Others (2013) 4 SCC 465

These cases were cited by the appellant to challenge the locus standi of Respondent No. 6 (an Officiating Principal) to assail the recommendation/appointment process.

How the Court dealt with them: The Supreme Court did not decide locus conclusively, holding that where state action is ex facie without jurisdiction, locus becomes less central in the facts. The Court expressly left the locus question open for a future appropriate case, while also noting that Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others had accepted locus in a comparable statutory setting.

3.2 Legal Reasoning

(I) The Old Act’s appointment architecture and the limited role of Section 13(4)

The Court closely read Sections 12, 13, and 14 of the Old Act and emphasized:

  • Appointments must be made by the management strictly “in accordance with the provisions of this Act”; contraventions are void (Section 12(1)).
  • The Commission recommends candidates; the Director intimates the management of the recommended name (Section 13(3)), and the management must issue an appointment letter within one month (Section 14(1)).
  • If the candidate fails to join, the Director may send a fresh name on the management’s request (Section 14(2))—a design that prevents candidate-driven reshuffling of postings.
  • Section 13(4) addresses vacancies that arise during the validity of the list due to “death, resignation or otherwise” and that were not notified earlier—this is a gap-filling provision for unforeseen vacancies, not a power to rework a candidate’s posting after an earlier recommendation.

Applying these principles, the Court found the appellant:

  • Was recommended to Ballia on 03.08.2022;
  • Did not act to join, and did not pursue issuance of an appointment letter there;
  • Later sought a change of posting when another vacancy (Meerut) became attractive.

This, the Court held, cannot be reframed as a Section 13(4) “otherwise” vacancy situation, because that would allow waitlisted candidates to “wait out” postings and later demand more preferred institutions—undermining merit-based, vacancy-based, advertised recruitment.

(II) Repeal, savings, and why post-21.08.2023 actions were without jurisdiction

The New Act came into force on 21.08.2023 and expressly repealed the Old Act (Section 31(1)). The State attempted to justify December 2023 and January 2024 posting-change actions by relying on the Old Act’s list and a broad savings theory.

The Court rejected that approach through a two-step reasoning:

  1. Comparison of statutory schemes: While the New Act (Sections 10 and 11) provides a fresh mechanism for vacancy determination, selection, panel forwarding, and appointment, it does not confer a Director’s power analogous to Section 13(4) of the Old Act. Therefore, the New Act cannot be used to “continue” a power it does not contain.
  2. Section 31(2) saving is not a revival device: Section 31(2) deems “anything done” or “any action taken” under the repealed Acts to have been done under the New Act as if the New Act were in force at material times. The Court treated this as saving completed lawful steps, not authorizing new steps after repeal. On facts, the only “action taken” under the Old Act that could be saved was the 03.08.2022 recommendation. Critically, the Director had himself (on 17.08.2023—just four days before the New Act commenced) stated there was no provision to change posting after recommendation. Hence, the later December 2023/January 2024 orders could not be justified as “saved” continuations.

The Court reinforced the repeal consequences by referring to Section 6 of the Uttar Pradesh General Clauses Act, 1904 (effect of repeal): repeal does not validate fresh exercises of repealed power; it preserves only what is “duly done” under the repealed enactment unless a different intention appears.

Bottom line: Once the New Act commenced, the Old Act panel could not be treated as an evergreen reservoir for shifting postings. Any appointment process had to proceed under the New Act’s route.

(III) Institutional accountability: adverse observations on State’s litigation stance

A notable feature is the Court’s censure of the State’s officers for supporting the appellant despite the clear statutory bar. The Court emphasized that the State’s duty in court is to provide “real assistance” grounded in law and facts, not to take partisan positions contrary to the governing statute. Though it refrained from issuing directions against non-party officers, it explicitly invited scrutiny by the Chief Secretary.

3.3 Impact

  • Hard stop on post-repeal “old list” operations: Recruitment panels and posting mechanisms under repealed statutes cannot be used to create new rights or reorder postings after a new statute commences—especially where the new law does not carry forward the same power structure.
  • Constraining “otherwise” under Section 13(4): The decision reinforces and operationalizes Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others by treating “otherwise” as limited to unforeseen vacancy contingencies, not candidate preference-driven rearrangements.
  • Administrative discipline in selection/placement: Candidates cannot strategically avoid joining an allotted institution and later seek a more favorable placement by invoking vacancy events elsewhere.
  • Government litigation standards: The Court’s remarks may influence how States frame pleadings/affidavits in service matters, pushing for legally consistent positions and internal review where unlawful stances are adopted.

4) Complex Concepts Simplified

  • Waitlisted candidate: A candidate not in the main selection list but placed in a reserve list; may be considered if selected candidates do not join or additional vacancies arise within the list’s validity.
  • Recommendation / intimation: Under the Old Act, the Commission recommends; the Director “intimates” the management which candidate to appoint. Management then issues the appointment letter.
  • Officiating Principal: A temporary in-charge head until a regular appointment is made.
  • “Ejusdem generis”: A rule of interpretation: when general words follow specific words, the general words are limited to things of the same kind as the specific ones. Here, “otherwise” is limited to vacancy causes similar to death/resignation (unforeseen events), not any and every scenario.
  • Repeal and savings clause: When an old law is repealed, a savings clause may preserve actions already validly taken under it. But it generally does not allow authorities to keep exercising repealed powers after the new law begins—unless the new law clearly says so.
  • Without jurisdiction: An authority acts beyond the powers granted by law; such actions are typically void.
  • Locus standi: The legal right of a person to bring a challenge in court. The Court noted that where illegality is obvious, courts may not need to dwell on locus in the same way.

5) Conclusion

The Supreme Court’s decision crystallizes two linked principles in Uttar Pradesh’s aided-college recruitment framework:

  1. Under the Old Act, Section 13(4) cannot be used as a tool for reposting a waitlisted candidate who was already recommended elsewhere; “otherwise” is confined to unforeseen vacancy events consistent with Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others.
  2. After the New Act’s commencement, authorities cannot issue fresh recommendations or placement changes by drawing power from the repealed Old Act or its panel; the savings clause in Section 31(2) preserves only what was already “done/taken” under the Old Act and does not revive or extend repealed powers.

In practical terms, the ruling protects statutory recruitment integrity: it prevents ad hoc, preference-based reshuffling of postings from waitlists, and it enforces a clean transition from an old statutory regime to a new one without administrative “workarounds.”