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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 non-

suiting 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 FORMS-  JUNE 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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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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