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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2802-2804 OF 2013
(Arising out of SLP(C) Nos. 30581-30583 of 2012)
Ramesh Chandra Shah and others … Appellants
versus
Anil Joshi and others … Respondents
J U D G M E N T
G.S. SINGHVI, J.
1. Leave granted.
2. In response to an advertisement issued by the Uttarakhand Board of
Technical Education (for short, ‘the Board’), which was published in the
newspaper “Amar Ujala” dated 5.5.2011, the appellants and the private
respondents submitted applications for the posts of Physiotherapist. All of them
appeared in the written test held on 25.9.2011. The appellants were declared
successful and they became entitled to be appointed against the advertised posts.
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3. The private respondents, who failed to clear the test filed Civil Misc. Writ
Petition No.1625/2011 for quashing the advertisement and the process of selection.
They pleaded that the advertisement and the test conducted by the Board were
ultra vires the provisions of the Uttar Pradesh Medical Health and Family Welfare
Department Physiotherapist and Occupational Therapist Service Rules, 1998
(hereinafter described as ‘the Special Rules’).
4. In the counter affidavit filed by the official respondents, it was averred that
the selection was made in accordance with the Uttarakhand Procedure for Direct
Recruitment for Group “C” Posts (Outside the purview of the Uttarakhand Public
Service Commission) Rules, 2008 (hereinafter described as, ‘the General Rules’).
It was further averred that the writ petitioners (the private respondents herein) do
not have the locus to question the advertisement and the selection process because
they had submitted applications and participated in the test knowing fully well that
the selection was being made in accordance with the General Rules.
5. The learned Single Judge overruled the objection taken by the official
respondents by observing that the process of recruitment was vitiated due to patent
illegality and, in such a case, the principle of waiver cannot be invoked for nonsuiting the writ petitioners. On merits, the learned Single Judge opined that even
though Rule 2 of the General Rules contains a non obstante clause, the Special
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Rules regulating the recruitment of Physiotherapists will prevail and the Board was
not entitled to conduct the test and declare the result by relying upon the General
Rules. He, accordingly, allowed the writ petition and quashed the selection with a
direction that the available posts be advertised afresh.
6. On an appeal filed by some of the successful candidates, the Division Bench
of the High Court held that after having taken a chance for selection, the private
respondents were not entitled to question the process of selection. Notwithstanding
this conclusion, the Division Bench observed that the private respondents were
entitled to insist for a direction to complete the selection process by adding 30%
marks for intermediate examination and 70% marks for diploma/degree
examination to the marks obtained by each examinee, who appeared in the test
conducted by the Board and also to declare that those who have not obtained 30%
marks in diploma/degree examination are unfit. The operative portion of the
judgment of the Division Bench reads as under:
“We, accordingly, allow the appeal and modify the judgment
and order under appeal by upholding the quashing of concerned
merit list of Physiotherapists prepared by the Board, but at the
same time, direct the Board to reject all those examinees, who
appeared in the examination for being appointed as
Physiotherapists, but not received 30% marks in diploma
examination and to complete the selection of Physiotherapists
by adding to the marks obtained by the fit examinees in the
written examination, 30% marks for intermediate examination
and 70% marks for diploma / degree examination. Let the said
exercise be completed as quickly as possible, but not later than
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two months from the date of service of a copy of this order
upon the Board.”
7. The review applications filed by the selected candidates were dismissed by
the Division Bench but the time fixed for compliance of the direction contained in
judgment dated 2.5.2012 was extended.
8. Learned counsel for the parties reiterated the arguments made by their
counterparts before the High Court. Shri Pallav Shishodia, learned senior counsel
appearing for the appellants argued that after having accepted the appellants’
contention on the issue of locus of the private respondents to challenge the process
of selection, the Division Bench of the High Court was not at all justified in
directing the Board to prepare fresh select list by adding marks for intermediate
and degree/diploma qualifications. He further argued that the learned Single Judge
and the Division Bench committed grave error by refusing to non suit the private
respondents despite the fact that from the stage of submission of applications they
knew that the selection was being held in accordance with the General Rules.
Learned senior counsel referred to Office Memorandum No.1083/XXXX(2)/2010
dated 3.8.2010 issued by the Personnel Department of the State and the opening
paragraph of the advertisement to drive home the point that the selection was to be
made in accordance with the procedure prescribed under the General Rules and
every candidate was aware of this.
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9. Ms. Rachana Srivastava, Standing Counsel for the State of Uttarakhand
adopted the arguments of Shri Shishodia and submitted that the Division Bench of
the High Court was not at all justified in making out an altogether new case for
which there were no pleadings.
10. Learned counsel for the private respondents supported the order passed by
the learned Single Judge and argued that the Division Bench of the High Court did
not commit any error by directing the Board to prepare fresh select list by adding
marks for the academic qualifications to the marks secured in the written test.
11. We have considered the respective arguments and scrutinized the records.
12. The State of Uttarakhand (earlier known as ‘Uttaranchal’) was formed w.e.f.
9.11.2000. Before formation of the new State, recruitment to the posts of
Physiotherapist and Occupational Therapist was governed by the Special Rules and
recruitment to other group “C” posts was governed by the provisions contained in
the Uttar Pradesh Procedure for Direct Recruitment for Group ‘C’ Posts (Outside
the purview of the Uttar Pradesh Public Service Commission) Rules, 1998, which
were published in Official Gazette dated 9.6.1998. After formation of the new
State, the rules governing the recruitment and other conditions of service
applicable to the erstwhile State of Uttar Pradesh were adopted by the Government
of the new State by Adaptation and Modification Order 2002. In 2008, the
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Governor of Uttarakhand in exercise of the powers conferred upon him by the
proviso to Article 309 of the Constitution amended the Special Rules. The
academic and preferential qualifications for the post of Physiotherapist, as
contained in the Special Rules were:
“8. Academic Qualifications - A candidate for direct recruitment to
the various categories of posts in the service must possess the
following qualifications-
(1) Physiotherapist - (i) must have passed the Intermediate
Examination with Science of the Board of High School and
Intermediate Education, Uttar Pradesh or an examination recognized
by the Government as equivalent thereto.
(ii) Must possess as degree or diploma in physiotherapy from an
Institution, recognized by the Government.
(2) Occupational Therapist - (i) must have passed the Intermediate
Examination with Science of the Board of High School and
Intermediate Education, Uttar Pradesh or an examination recognized
by the Government as equivalent thereto.
(ii) Must possess a degree or diploma in Occupational Therapy from
an Institution recognized by the Government.
9. Preferential Qualification - A candidate who has-
(i) Served in the Territorial Army for a minimum period of two
years, or
(ii) Obtained ‘B' Certificate of National Cadet Corps, shall, other
things being equal be given preference in the matter of direct
recruitment.”
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By Rule 15 of the Special Rules, which is reproduced below, it was laid down that
direct recruitment to the various categories of posts shall be made in accordance
with the General Rules:
“15. Procedure for direct recruitment - Direct recruitment to the various
categories of posts in the service shall be made in accordance with the Uttar
Pradesh Procedure for Direct Recruitment for Group ‘C’ Posts (outside the
purview of the Uttar Pradesh Public Service Commission) Rule, 1998, as
amended from time to time.”
13. By Notification dated 4.8.2008, the Special Rules were amended and the
existing Rule 15 was substituted by the following:
“15(1) For direct recruitment the appointing Authority shall noting the
format of application form and vacancies together in the following
manner:
(i) By issuing advertisement in daily newspaper,
having wide circulation.
(ii) By pasting the notice on the notice-board of
the office or by advertising through
Radio/Television and other employment
newspaper.
(iii) By notifying vacancies to the Employment
Exchange.
(2) For the purpose of direct recruitment there
shall be constituted a selection committee
compressing the following-
(i) Appointing Authority Chairman
(ii) If the Appointing Authority
does not belong to the
Scheduled castes or
scheduled tribes, an officer
belonging to the Scheduled
castes or Scheduled Tribes,
Member
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not below the rank of joint
Director, shall nominated by
the Director General. If the
Appointing Authority
belongs to the Scheduled
Castes or Scheduled, Tribes,
in that cases an officer
belonging to other than
Scheduled Castes or
Scheduled Tribes, shall be
nominated by the Director
General
(iii) An officer belonging to the
minority community, not
below the rank of joint
Director to be nominated by
the Director General
Member
(iv) An officer belonging to
Backward Classes, not
below the rant of Joint
Director, to be nominated
by the Director General
Member
(3) The Selection Committee
shall, having regard to the
need of securing due
representation of the
candidates, belonging to the
Scheduled Castes,
Scheduled Tribes and other
categories in accordance
with rule 6, scrutinize the
applications.
4(i) For Selection, there shall be
an objective type written
examination of 100 marks
consisting of single
questions paper which will
include General Hindi,
General Knowledge and
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concerned subject. While
evaluating the questions
paper, one marks shall be
awarded, for each correct
answer and 1A mark shall be
deducted for each incorrect answer be
deducted for each incorrect answer as
negative marking
(ii) After the examination is
over, the candidates shall
be allowed to carry back the
Question Booklet of the
Written examination with
them
(iii) After the written
examination, shall
be displayed on the
Uttarakhand
website www.ua.nic.in or
published
in the daily newspaper, having wide
circulation.
(iv) The Answer Sheet of the
written examination shall be
in duplicate (including the
carbon copy and the
candidates shall be
permitted to carry back the
duplicate copy with them.
(v) The candidates will be
awarded 30 percent and 70
percent marks for the
percentage of marks
obtained in the intermediate
examination and
Diploma/Degree
examination, respectively.
(vi) Candidates obtaining less
than 40 percent marks in
the written test and less
than 30 percent marks in
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Diploma examination shall
be unfit for selection.
(vii
)
The merit list shall be
prepared by
the Selection committee on
the
basis of the aggregate of
marks
obtained in the test for
selection
carrying 200 marks, which
will
include 100 marks for
written
examination, 30 percent
marks of
Intermediate examination
and 70 per cent marks of
Diploma/Degree
examination.
(5) Thereafter the Selection
Committee shall prepare a
list in order of proficiency as
disclosed by the aggregate
of marks obtained by each
candidate and recommend
such number of candidates ,
it considers suitable for
appointment. It more
candidates obtain equal
marks in the aggregate, the
name of the candidate
obtaining more marks in the
written examination shall be
placed higher in the list if
two or more candidates
obtain equal marks in the
written test also, the
candidate senior in age shall
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be placed higher in the
section list. The number of
names in the list shall be
more (but not more than 25
percent) than the number of
vacancies, the selection
Committee shall forward the
list to the Appointing
Authority.”
14. Rule 2 of the General Rules, which is pari materia to rule framed by the
Governor of Uttar Pradesh in 1998 and which contains a non obstante clause, reads
as under:
“Overriding
effect
2. These rules shall have
effect notwithstanding
anything to the
contrary contained in
any other Rules or
orders.”
15. At this stage, it will also be useful to notice the contents of Office
Memorandum dated 3.8.2010 and the opening paragraph of the advertisement
issued by the Board which, as mentioned above, was published in the newspaper
dated 5.5.2011:
Office Memorandum
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“STATE OF UTTARAKHAND
PERSONNEL DEPARTMENT-2
NO.1083/XXXX(2)/ 2010 DATED 03rd AUGUST, 2010
OFFICE MEMORANDUM
As per Provisions prescribed, for selection /recruitment on
parties of Group 'C falling outside the purview of Public Service
Commission, selection has to be made by concerned Appointing
Authority.
As separate recruitment/selections, on vacant posts by every
Appointing Authority would require more time & labour.
Hence, after proper consideration Hon'ble Governor
Uttrakhand, in respect of vacant posts of falling outside the purview of
Public Service Commission has nominated Uttrakhand Technical
Education Board, as recruiting agency & further prescribes the
following:
1. In this respect, State will provide to Uttrakhand Technical
Education required resources.
2. Every Appointing Authority, will calculated the vacant posts
falling outside the purview of Uttrakhand Public Service
Commission, and will sent requisition in prescribe proforma in
which detail of number of posts reserve for vertical as well as
horizontal reservation should be clearly mentioned and
should provided the same Uttrakhand Technical Education
Board.
3. Technical Education Board on receiving such requisition from
Appointing Authority should advertise for recruitment under
prescribe Rules, within one month.
4. Technical Education Board, after publication of advertisement,
shall start the selection proceedings, as per provisions of
Uttrakhand Procedure for Direct Recruitment for Group 'C' Posts
(outside the purview of Uttarakhand Public Service Commission)
Rule 2008 & shall complete selection proceedings as soon as
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possible & forward its recommendation to the Appointing
Authority.
(Dileep Kr. Kotia)
Principal Secretary”
Advertisement
“UTTARAKHAND TECHNICAL EDUCATION BOARD
ROORKEE (HARIDWAR)-247667
ADVERTISEMENT NO STATE GROUP ‘C’ COMBINED
RECRUITMENT EXAMINATION 2011
DATED 4 MAY 2011
DATE OF ADVERTISEMENT- MAY 04, 2011
LAST DATE OF ACCEPTANCE OF APPLICATION FORMSJUNE 04, 2011
FOR DETAILED ADVERTISEMENT PLEASE VISIT BOARD'S
WEBSITE AT
Vide Office Memo No-1063/XXX(2) 2010 dated
03.08.2010 of Personnel Department-2, Uttarakhand
State, Uttarakhand Technical Education Board, Roorkee
has been chosen as recruiting agency for vacant posts
in various departments of government which are
outside the purview of Public Service Commission
Group ‘c’ Combined Recruitment Examination- 2011.”
16. The method of selection enumerated in para 11 of the advertisement, which
was a clear departure from the Special Rules, reads thus:
“11. SELECTION EXAMINATION AND SYLLABUS OF
QUESTION PAPER:- For selection, there shall be an
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Objective type written examination Of 100 marks
consisting of single Question paper out of which questions of 50
marks will include general Hindi, general knowledge, general
awareness and knowledge of geography, culture, economy and
history of State of Uttarakhand and questions of 50 Marks will be
based on the subjects Of minimum required qualification for the
concerned post. Written examination will be of two hours. While
evaluating the question paper, one mark shall be awarded for
each correct answer & marks shall be deducted for each incorrect
answer as negative marking.
Retrenched employees will be awarded 5 marks for each year of
completed Service upto the maximum of 15 marks.
After the written examination is over, the candidate shall be
allowed to carry with them the question booklet along with the carbon
copy of the answer sheet.
After the written examination, the answer key of the written
examination will be displayed on the Board's website uk.gov.in and
www.ubter.in
In the marks obtained in written Examination will be added other
evaluations which Includes weightage points for ‘retrenched
employees' and for post having technical subject Of (village
development officer) for which competitive exam of prescribed
marks is held and marks obtained in such exams, after adding
such marks or weightage as the case may be in the marks
obtained in written test merit list will be prepared (final select
list).
Such list shall contain names more than the vacancies
(but not more than 25%)
Final select list will be displayed on the Board's web site
uk.gov.in and www.ubter.in
If two candidates obtain equal marks than one who has
obtained higher marks in the written test shall be
placed higher in the merit list, but if marks are equal in
the written test also then one who is elder in age shall
be placed higher in the merit list.”
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17. Those who were desirous of competing for the post of Physiotherapist,
which is a Group ‘C’ post in the State of Uttarakhand must have, after reading the
advertisement, become aware of the fact that by virtue of Office Memorandum
dated 3.8.2010, the Board has been designated as the recruiting agency and the
selection will be made in accordance with the provisions of the General Rules.
They appeared in the written test knowing that they will have to pass the
examination enumerated in para 11 of the advertisement. If they had cleared the
test, the private respondents would not have raised any objection to the selection
procedure or the methodology adopted by the Board. They made a grievance only
after they found that their names do not figure in the list of successful candidates.
In other words, they took a chance to be selected in the test conducted by the
Board on the basis of the advertisement issued in November 2011. This conduct of
the private respondents clearly disentitles them from seeking relief under Article
226 of the Constitution. To put it differently, by having appeared in the written
test and taken a chance to be declared successful, the private respondents will be
deemed to have waived their right to challenge the advertisement and the
procedure of selection.
18. It is settled law that a person who consciously takes part in the process of
selection cannot, thereafter, turn around and question the method of selection and
its outcome.
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19. One of the earliest judgments on the subject is Manak Lal v. Dr. Prem
Chand AIR 1957 SC 425. In that case, this Court considered the question whether
the decision taken by the High Court on the allegation of professional misconduct
leveled against the appellant was vitiated due to bias of the Chairman of the
Tribunal constituted for holding inquiry into the allegation. The appellant alleged
that the Chairman had appeared for the complainant in an earlier proceeding and,
thus, he was disqualified to judge his conduct. This Court held that by not having
taken any objection against the participation of the Chairman of the Tribunal in the
inquiry held against him, the appellant will be deemed to have waived his
objection. Some of the observations made in the judgment are extracted below:
“.........If, in the present case, it appears that the appellant knew all the
facts about the alleged disability of Shri Chhangani and was also
aware that he could effectively request the learned Chief Justice to
nominate some other member instead of Shri Chhangani and yet did
not adopt that course, it may well be that he deliberately took a chance
to obtain a report in his favour from the Tribunal and when he came to
know that the report had gone against him he thought better of his
rights and raised this point before the High Court for the first time.
From the record it is clear that the appellant never raised this point
before the Tribunal and the manner in which this point was raised by
him even before the High Court is somewhat significant. The first
ground of objection filed by the appellant against the Tribunal's report
was that Shri Chhangani had pecuniary and personal interest in the
complainant Dr Prem Chand. The learned Judges of the High Court
have found that the allegations about the pecuniary interest of Shri
Chhangani in the present proceedings are wholly unfounded and this
finding has not been challenged before us by Shri Daphtary. The
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learned Judges of the High Court have also found that the objection
was raised by the appellant before them only to obtain an order for a
fresh enquiry and thus gain time...............
.........Since we have no doubt that the appellant knew the material
facts and must be deemed to have been conscious of his legal rights in
that matter, his failure to take the present plea at the earlier stage of
the proceedings creates an effective bar of waiver against him. It
seems clear that the appellant wanted to take a chance to secure a
favourable report from the Tribunal which was constituted and when
he found that he was confronted with an unfavourable report, he
adopted the device of raising the present technical point.”
20. In Dr. G. Sarna v. University of Lucknow (1976) 3 SCC 585, this Court held
that the appellant who knew about the composition of the Selection Committee and
took a chance to be selected cannot, thereafter, question the constitution of the
Committee.
21. In Om Prakash Shukla v. Akhilesh Kumar Shukla (1986) Supp. SCC 285, a
three-Judge Bench ruled that when the petitioner appeared in the examination
without protest, he was not entitled to challenge the result of the examination. The
same view was reiterated in Madan Lal v. State of J & K (1995) 3 SCC 486 in the
following words:
“The petitioners also appeared at the oral interview conducted by the
Members concerned of the Commission who interviewed the
petitioners as well as the contesting respondents concerned. Thus the
petitioners took a chance to get themselves selected at the said oral
interview. Only because they did not find themselves to have emerged
successful as a result of their combined performance both at written
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test and oral interview, they have filed this petition. It is now well
settled that if a candidate takes a calculated chance and appears at the
interview, then, only because the result of the interview is not
palatable to him, he cannot turn round and subsequently contend that
the process of interview was unfair or the Selection Committee was
not properly constituted. In the case of Om Prakash Shukla v.
Akhilesh Kumar Shukla it has been clearly laid down by a Bench of
three learned Judges of this Court that when the petitioner appeared at
the examination without protest and when he found that he would not
succeed in examination he filed a petition challenging the said
examination, the High Court should not have granted any relief to
such a petitioner.”
22. In Manish Kumar Shahi v. State of Bihar (2010) 12 SCC 576, this Court
reiterated the principle laid down in the earlier judgments and observed:
“We also agree with the High Court that after having taken part in the
process of selection knowing fully well that more than 19% marks
have been earmarked for viva voce test, the petitioner is not entitled to
challenge the criteria or process of selection. Surely, if the petitioner's
name had appeared in the merit list, he would not have even dreamed
of challenging the selection. The petitioner invoked jurisdiction of the
High Court under Article 226 of the Constitution of India only after he
found that his name does not figure in the merit list prepared by the
Commission. This conduct of the petitioner clearly disentitles him
from questioning the selection and the High Court did not commit any
error by refusing to entertain the writ petition.”
23. The doctrine of waiver was also invoked in Vijendra Kumar Verma v.
Public Service Commission, Uttarakhand and others (2011) 1 SCC 150 and it was
held:
“When the list of successful candidates in the written examination
was published in such notification itself, it was also made clear that
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the knowledge of the candidates with regard to basic knowledge of
computer operation would be tested at the time of interview for which
knowledge of Microsoft Operating System and Microsoft Office
operation would be essential. In the call letter also which was sent to
the appellant at the time of calling him for interview, the aforesaid
criteria was reiterated and spelt out. Therefore, no minimum
benchmark or a new procedure was ever introduced during the
midstream of the selection process. All the candidates knew the
requirements of the selection process and were also fully aware that
they must possess the basic knowledge of computer operation
meaning thereby Microsoft Operating System and Microsoft Office
operation. Knowing the said criteria, the appellant also appeared in
the interview, faced the questions from the expert of computer
application and has taken a chance and opportunity therein without
any protest at any stage and now cannot turn back to state that the
aforesaid procedure adopted was wrong and without jurisdiction.”
24. In view of the propositions laid down in the above noted judgments, it must
be held that by having taken part in the process of selection with full knowledge
that the recruitment was being made under the General Rules, the respondents had
waived their right to question the advertisement or the methodology adopted by the
Board for making selection and the learned Single Judge and the Division Bench
of the High Court committed grave error by entertaining the grievance made by
the respondents.
25. We are also prima facie of the view that the learned Single Judge committed
an error by holding that despite the non obstante clause contained in Rule 2 of the
General Rules, the Special Rules would govern recruitment to the post of
Physiotherapist. However, we do not consider it necessary to express any
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conclusive opinion on this issue and leave the question to be decided in an
appropriate case.
26. In the result, the appeals are allowed, the impugned orders as also the one
passed by the learned Single Judge are set aside and the writ petition filed by the
private respondents is dismissed. Parties are left to bear their own costs.
…………………………J.
(G.S. SINGHVI)
…………………………J.
(KURIAN JOSEPH)
New Delhi;
April 3, 2013.
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