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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL No. 9092 OF 2012

ASHOK KUMAR & ANR        .....APPELLANTS

Versus  

STATE OF BIHAR & ORS .....RESPONDENTS

J U D G M E N T

Dr D Y CHANDRACHUD, J

This appeal arises from a judgment and order of a Division Bench of

the  High  Court  of  Judicature  at  Patna  dated  16  December  2011  which

allowed  a  Letters  Patent  Appeal  instituted  by  the  ninth  to  fourteenth

respondents.  The Division Bench set  aside the judgment and order of the

learned Single Judge dated 9 November 2010 by which selections made by

promotion from Class IV posts to Class III  posts in the District  Court  of

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Muzaffarpur were quashed. The Division Bench has held that the original

petitioners who succeeded before the learned Single Judge in challenging the

process of promotion were estopped from doing so, having unsuccessfully

participated in the selection process.  

2 On 2 December 2003, the office of the District  and Sessions Judge,

Muzaffarpur issued General order No. 204 of 2003 inviting applications for

promotion to six Class III posts from amongst Class IV employees of the

Civil Court at Muzaffarpur. The selection was to be made on the basis of a

fresh written test  and interview. Twenty seven candidates  appeared in  the

written  examination  which  was  conducted  on  20  April  2004  of  whom

fourteen qualified. These candidates were interviewed on 7 July 2004. Eighty

five marks were fixed for the written examination and fifteen marks for the

interview. The appointment committee selected six candidates on the basis of

merit for appointment to the six Class III posts by promotion. The select list

was submitted to the High Court on 26 July 2004. The High Court declined to

approve the select list on the ground that the marks allotted for the written

examination were not in accordance with the Court’s General letter No. 1 of

1995 and the Rules of 1992, 1998 and 2001 covering Bihar Civil Court Staff.

By a letter dated 19 August 2004, the Registrar (Administration) directed the

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District and Sessions Judge, Muzaffarpur to hold a fresh examination fixing

ninety marks for the written examination by treating the qualifying marks as

forty five.

3 Accordingly, a fresh General order (171 of 2004) was issued by the

District  and  Sessions  Judge  on  8  October  2004.  The  General  order

specifically adverted to the communication dated 9 August 2004 of the High

Court  and  stipulated  that  a  fresh  written  examination  comprising  ninety

marks would be held (with qualifying marks of forty five) which would be

followed by an interview carrying ten marks. Pursuant to this, a written test

was held on 7 November 2004 followed by an interview on 12 December

2004.  Results  were  declared  on  31  December  2004  and  the  ninth  to

fourteenth respondents were appointed on Class III posts. All the appellants

participated in the process of selection.

4 The two appellants and four other unsuccessful candidates then filed a

Writ Petition before the High Court in order to challenge the General order

dated 8 October 2004 and the order of appointment dated 31 December 2004.

The primary ground was that  the  appointment  process  was vitiated,  since

under the relevant rules,  the written test  was required to carry eighty five

marks  and  the  interview,  fifteen  marks.  Counter  affidavits  were  filed  in

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response  to  the  Writ  Petition  by  the  Registrar  of  the  Civil  Court  at

Muzaffarpur, the Registrar General of the High Court and by the selected

candidates. The High Court on the administrative side defended its action by

placing reliance on its General letter bearing No.1 of 1995 (Civil) dated 22

November 1995 which stipulated a written examination comprising of ninety

marks (with qualifying marks of forty five) followed by an interview carrying

ten marks for promotion from Class IV to Class III posts. The High Court

submitted in its counter affidavit that this General letter continued to hold the

field. Moreover, it was urged that Rule 6 of the Bihar Civil Court Staff (Class

III and Class IV) (Amendment) Rules, 2001 stipulates that promotion from

Class IV to Class III posts shall be made by an appointment committee on the

basis  of  merit  cum seniority. While  the  Rules of 2001 also stipulated the

mode  of  appointment  by  promotion,  the  procedure  for  promotion  was

governed  by  General  Letter  No.1  of  1995.  This,  it  was  urged,  has  been

reiterated in the administrative instructions issued by the High Court on 20

December 2007.  

5 The learned Single Judge of the High Court allowed the writ petition

and  quashed  the  appointment  made  by  the  District  and  Sessions  Judge,

Muzaffarpur. The learned Single Judge held that under Rule 6 of the Bihar

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Civil  Court  Staff (Class  III  and Class  IV) (Amendment)  Rules,  2001,  the

written examination was to carry eighty five marks and the interview fifteen

marks (instead and in place of the earlier requirement of ninety marks and ten

marks respectively). In the view of the learned Single Judge, once the rules,

which have been made under Article 309, were amended in 2001, the earlier

rules would stand superseded and the General letter of the High Court would

not have the effect of overriding the statutory rules. The examination, it was

noticed was held after the new rules had come into force in July 2001. In

consequence,  the learned Single Judge held that the notification fixing eighty

five marks for the written examination and fifteen marks for the interview

had been correctly issued by the District and Sessions Judge, Muzaffarpur

who as a  result,  was directed to  declare  the  results  of  all  those  who had

participated in the first selection examination.  

6 After the order of the learned Single Judge, a direction was issued by

which six persons who had been appointed to Class III posts were reverted to

their  original  Class  IV posts  on 30 November 2010.  They filed a  Letters

Patent Appeal in order to challenge the judgment and order of the learned

Single  Judge.  In  the  meantime,  an  order  was  issued  by  the  District  and

Sessions  Judge  by  which  six  persons  who  were  successful  in  the  first

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selection process were promoted to Class III posts. The candidates included

both the appellants and four other candidates.  These four candidates were

also successful in the previous result. As a consequence, two persons were

excluded.  

7 The Division Bench of the High Court by a judgment and order dated

16 December 2011 allowed the Letters Patent Appeal filed by the ninth to

fourteenth respondents and, while setting aside the judgment and order of the

learned Single  Judge,  restored the original  order of appointment  dated 31

December 2004. The Division Bench agreed with the construction placed by

the learned Single Judge on the Rules of 2001. However, while interfering

with the judgment of the learned Single Judge, the Division Bench took the

view that the appellants had in pursuance of the notification issued by the

District and Sessions Judge participated in the selection process without any

protest. Having failed to raise any objection to the selection process, it was

held that the appellants were estopped from turning around and challenging

the selection once they were declared unsuccessful. In taking this view, the

Division Bench has relied upon the judgments of this Court in: (i) Marripati

Nagaraja v. The Government of Andhra Pradesh1; (ii) Dhananjay Malik

1 (2007) 11 SCC 522

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v. State  of  Uttaranchal2;  and  (iii)  Amlan  Jyoti  Borrooah  v. State  of

Assam3.

8 Now at the outset, it would be necessary to advert to the provisions of

the Bihar Civil  Court  Staff (Class  III  and Class  IV) (Amendment)  Rules,

1998. Rule 6 provides for the mode of recruitment of Class III employees

through  a  centralized  written  examination  and  oral  interview.  Rule  6(ii)

earlier provided that the written test shall consist of ninety marks while ten

marks shall be allotted to the interview. Rule 7 deals with appointment by

promotion. Rule 7(i) stipulates that appointments from Class III to Class IV

posts on promotion shall be made by the appointment committee on the basis

of merit cum seniority. Rule 7(iii) is in the following terms :

“for  promotion  in  terms  of  the  preceding  rule,  the Appointment Committee shall hold a separate examination of the  eligible  candidates  and  call  for  interview  only  such candidates  who  obtain  the  qualifying  marks  in  the  written examination.”

9 The Bihar  Civil  Court  Staff  (Class  III  and Class  IV)  (Amendment)

Rules, 2001 were notified with effect from 11 July 2001. Rules 5 to 12 were

substituted.  Rule  5(iv)  governs  the  mode  of  recruitment  of  Class  III

2 (2008) 3 PLJR (SC) 271 3 (2009) 3 SCC 227

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employees. Rule 5(iv)(d) provides for a written test of eighty five marks and

an interview consisting of fifteen marks, totally aggregating to one hundred

marks. The qualifying marks for the written examination are to be forty five.

Rule 6 provides for appointment by promotion in the following terms :

“Appointment by Promotion-(i) The appointments to Class III posts by promotion from Class IV posts shall also be made by the Appointment Committee on merit-cum-seniority basis;

(ii)  Twenty percent of vacant Class III  posts shall be made reserved for promotion from Class IV employees who possess the  minimum educational  qualification  and have  three  year experience in the post held by them;

(iii)  For  promotion  in  terms  of  the  preceding  rule,  the Appointment Committee shall hold a separate examination of the  eligible  candidates  and  call  for  interview  only  such candidates  who  obtain  the  qualifying  marks  in  the  written examination.”

Under Rule 7(iv), all appointments are subject to such directions as may be

issued by the High Court from time to time. Rule 10 enables the High Court

to qualify or supplement the rules by issuing a general or special direction

from time to time. The amended Rules of 2001, as noted above provide for

the recruitment of Class III employees in Rule 5(iv) and for appointment by

promotion from Class IV to Class III posts in Rule 6. Rule 6 (iii) stipulates

that for promotion in terms of the preceding rule, the appointment committee

shall  hold  a  separate  examination  of  the  eligible  candidates  and  call  for

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interview only such candidates who obtain the qualifying marks in the written

examination.  The  learned  Single  Judge  held  that  in  consequence,  Rule  6

incorporates  the  requirement  which  is  provided  in  Rule  5  of  a  written

examination consisting of eighty five marks, an interview of fifteen marks

and qualifying marks of forty five in the written test. The Division Bench on

adverting to the provisions of Rules 5 and 6 of the Rules, 2001 noticed that

there was some scope for interpretation on account of vagueness of the rules.

However, on the balance, the Division Bench was not inclined to differ with

the view of the learned Single Judge on the interpretation of the rules.  

10 The basic issue that was addressed by the Division Bench was that the

appellants having participated in the fresh round of selection could not be

permitted to assail the process once they were declared unsuccessful. On this

aspect, a brief recapitulation of the facts would be in order. In the original

process of selection, following the issuance of General order No. 204 of 2003

by the  District  and  Sessions  Judge,  Muzaffarpur  on  2  December  2003,  a

written  examination  was  held  on 20 April  2004 consisting  of  eighty  five

marks followed by an interview on 7 July 2004 consisting of fifteen marks.

The High Court declined to approve of the selection list and issued through

its  Registrar  (Administration),  a  communication  dated  19  August  2004

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requiring the holding of a fresh written examination carrying ninety marks in

which the qualifying marks would be regarded as forty five in terms of its

General letter No.1 of 1995. Pursuant thereto, a circular was issued in the

form of a new General order bearing No. 171 of 2004 on 8 October 2004

which stipulated that in terms of the directions issued by the High Court on

19 August 2004, a fresh written examination would be held carrying ninety

marks (with qualifying marks as forty five) followed by an interview of ten

marks. Candidates who had applied earlier were not required to apply afresh.  

11 The  appellants  participated  in  the  fresh  process  of  selection.  If  the

appellants were aggrieved by the decision to hold a fresh process, they did

not espouse their remedy. Instead, they participated in the fresh process of

selection and it was only upon being unsuccessful that they challenged the

result in the writ petition. This was clearly not open to the appellants. The

principle of estoppel would operate.

12 The law on the subject has been crystalized in several decisions of this

Court. In Chandra Prakash Tiwari v. Shakuntala Shukla4, this Court laid

down the principle that when a candidate appears at an examination without

objection and is subsequently found to be not successful, a challenge to the

4(2002) 6 SCC 127

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process is precluded. The question of entertaining a petition challenging an

examination would not arise where a candidate has appeared and participated.

He or she cannot subsequently turn around and contend that the process was

unfair or that there was a lacuna therein,  merely because the result  is not

palatable.  In Union of India v. S. Vinodh Kumar5, this Court held that :   

“18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same…  

(See  also  Munindra  Kumar  v. Rajiv  Govil6 and  Rashmi Mishra v. M.P. Public Service Commission7).”

The same view was reiterated in Amlan Jyoti Borroah (supra) where it was

held to be well  settled that candidates who have taken part  in a selection

process knowing fully well the procedure laid down therein are not entitled to

question it upon being declared to be unsuccessful.  

In Manish Kumar Shah v. State of Bihar8, the same principle was reiterated

in the following observations :

“16. 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

5(2007) 8 SCC 100 6(1991) 3 SCC 368 7(2006) 12 SCC 724 8 (2010) 12 SCC 576

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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. Reference in this connection may be made to the  Judgments  in  MadanLal  v.  State  of  J.  and  K. MANU/SC/0208/1995  :  (1995)  3  SCC  486, MarripatiNagaraja v. Government of Andhra Pradesh and Ors. MANU/SC/8040/2007  :  (2007)  11  SCC  522,  Dhananjay Malik  and  Ors.  v.  State  of  Uttaranchal  and  Ors. MANU/SC/7287/2008  :  (2008)  4  SCC  171, AmlanJyotiBorooah  v.  State  of  Assam MANU/SC/0077/2009  :  (2009)  3  SCC  227  and  K.A. Nagamani v. Indian Airlines and Ors. (supra).”

In Vijendra Kumar Verma v. Public Service Commission9, candidates who

had participated in the selection process were aware that they were required

to  possess  certain  specific  qualifications  in  computer  operations.  The

appellants had appeared in the selection process and after participating in the

interview  sought  to  challenge  the  selection  process  as  being  without

jurisdiction. This was held to be impermissible.   

In Ramesh Chandra Shah v. Anil Joshi10, candidates who were competing

for the post of Physiotherapist in the State of Uttrakhand participated in a

written examination held in pursuance of an advertisement. This Court held

that if they had cleared the test, the respondents would not have raised any

9 (2011) 1 SCC 150 10 (2013) 11 SCC 309

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objection to the  selection process or to the methodology adopted.  Having

taken a chance of selection, it was held that the respondents were disentitled

to seek relief under Article 226 and would be deemed to have waived their

right to challenge the advertisement or the procedure of selection. This Court

held that :

“18.  It  is  settled  law  that  a  person  who  consciously  takes partin the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.”

In  Chandigarh  Administration  v. Jasmine  Kaur11,  it  was  held  that  a

candidate  who takes  a  calculated risk  or  chance by subjecting  himself  or

herself  to  the  selection process cannot  turn around and complain that  the

process of selection was unfair after knowing of his or her non-selection. In

Pradeep Kumar Rai v. Dinesh Kumar Pandey12, this Court held that :

“Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of  interview  and  not  challenged  it  till  the  results  were declared. There was a gap of almost four months between the interview and declaration of result.  However, the appellants did not  challenge it  at  that  time.  This,  it  appears  that  only when the appellants found themselves to be unsuccessful, they challenged  the  interview.  This  cannot  be  allowed.  The candidates cannot approbate and reprobate at the same time. Either  the  candidates  should  not  have  participated  in  the

11 (2014) 10 SCC 521 12  (2015) 11 SCC 493

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interview and challenged the procedure or they should have challenged immediately after the interviews were conducted.”

This principle has been reiterated in a recent judgment in Madras Institute

of Development v. S.K. Shiva Subaramanyam13.  

13 In the present case, regard must be had to the fact that the appellants

were  clearly  on  notice,  when  the  fresh  selection  process  took  place  that

written examination would carry ninety marks and the interview, ten marks.

The  appellants  participated  in  the  selection  process.  Moreover,  two other

considerations  weigh  in  balance.  The  High  Court  noted  in  the  impugned

judgment that the interpretation of Rule 6 was not free from vagueness. There

was in other words no glaring or patent illegality in the process adopted by

the High Court. There was an element of vagueness about whether Rule 6

which  dealt  with  promotion  merely  incorporated  the  requirement  of  an

examination provided in Rule 5 for direct recruitment to Class III posts or

whether the marks and qualifying marks were also incorporated. Moreover,

no prejudice was established to have been caused to the appellants by the

90:10 allocation.  

13 (2016) 1 SCC 454

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14 The decision in Raj Kumar v. Shakti Raj14 (which was relied upon by

the  appellants)  involved  a  case  where  government  was  found  to  have

committed glaring illegalities in the procedure. Hence, it was held that the

principle  of  estoppel  by conduct  or  acquiescence had no application.  The

decision is distinguishable.

15 In this view of the matter, the Division Bench cannot held to be in error

in  coming  to  the  conclusion  that  it  was  not  open  to  the  appellants  after

participating in the selection process to question the result, once they were

declared to be unsuccessful. During the course of the hearing, this Court is

informed that four out of six candidates, who were ultimately selected figured

both in the first process of selection as well as in the subsequent selection.

One candidate is stated to have retired.  

16 The apprehension now is of the remaining candidate being reverted as a

result of the judgment of the Division Bench of the High Court. In our view,

it  would  be  appropriate  if  the  equities  are  duly  adjusted  by  a  suitable

direction. We are of the view that the ends of the justice would be met by a

direction that in the event that there is any existing vacancy, appellant who

has still  continued in service, may be allowed to continue to work on the

14   (1997) 9 SCC 527

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Class III post in which he is currently working on a provisional basis until the

next round of selection process takes place. The appellant would be at liberty

to participate in the selection process that may be held in future and in the

event  he  is  declared  successful,  he  would  be  at  liberty  to  make  a

representation  to  the  competent  authority  for  consideration  of  the  period

spent by him on the Class III post for the purpose of fixation of seniority.  

17 Subject to the above direction, the judgment of the Division Bench and

the High Court is affirmed. The appeal shall accordingly stand disposed of in

the above terms. There shall be no order as to costs.  

               .........................................CJI                                            [T S  THAKUR]  

             …..........................................J                               [A M KHANWILKAR]

                        .............................................J                          [Dr D Y  CHANDRACHUD]

New Delhi October 21, 2016.