Page 1 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.

1

Page 2 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

2

Page 3 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

3

Page 4 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.

4

Page 5 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

5

Page 6 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.”

6

Page 7 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

7

Page 8 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

8

Page 9 concerned subject. While

evaluating the questions

paper, one marks shall be

awarded, for each correct

answer and

1

A 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

9

Page 10 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

1

Page 11 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

1

Page 12 “STATE OF UTTARAKHAND

PERSONNEL DEPARTMENT-2

NO.1083/XXXX(2)/ 2010 DATED 03

rd

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

1

Page 13 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

1

Page 14 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.”

1

Page 15 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.

1

Page 16 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

1

Page 17 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

1

Page 18 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

1

Page 19 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

1

Page 20 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.

2