Page 1 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

Page 2 2

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.

2On 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

Page 3 3

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.

3Accordingly, 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.

4The 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

Page 4 4

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.

5The 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

Page 5 5

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.

6After 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

Page 6 6

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.

7The 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 Pradesh

1

; (ii) Dhananjay Malik

1 (2007) 11 SCC 522

Page 7 7

v. State of Uttaranchal

2

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

Assam

3

.

8Now 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.”

9The 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

Page 8 8

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

Page 9 9

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.

10The 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

Page 10 10

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.

11The 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.

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

Court. In Chandra Prakash Tiwari v. Shakuntala Shukla

4

, 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

Page 11 11

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 Kumar

5

, 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 Govil

6

and Rashmi

Mishra v. M.P. Public Service Commission

7

).”

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 Bihar

8

, 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

Page 12 12

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 Commission

9

, 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 Joshi

10

, 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

Page 13 13

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 Kaur

11

, 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 Pandey

12

, 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

Page 14 14

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 Subaramanyam

13

.

13In 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

Page 15 15

14The decision in Raj Kumar v. Shakti Raj

14

(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.

15In 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.

16The 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

Page 16 16

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.

17Subject 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.