Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
2023 INSC 966
CIVIL APPELLATE JURISDICTION
CIVIL APPEALS NO . 6232-6236 OF 2013
NUTAN KUMARI APPELLANT
VERSUS
B.R.A. BIHAR UNIVERSITY AND OTHERS RESPONDENTS
O R D E R
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1. The appellant is aggrieved by the judgment dated 16 May, 2011, passed by
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the Division Bench of the High Court of Patna whereunder the appeals filed by the
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respondents No. 5 to 8 herein working as Physical Training Instructors in four
different colleges under the respondent No.1- University were allowed and the
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judgment of the learned Single Judge dated 10 February, 2011 passed in CWJC No.
14680 of 2020 filed by the appellant terminating their services was quashed. It was
further clarified that if the respondent No.1 – University, including the Chancellor
were so inclined, they would be entitled to proceed afresh with the inquiry directed to
be conducted in the matter after due notice to the private respondents herein.
Signature Not Verified
Digitally signed by
NEETA SAPRA
Date: 2023.11.01
15:26:35 IST
Reason:
1 Parties have been described in the manner in which they have been arrayed in Civil Appeal No.
6232/2013.
2 Letter Patent Appeals No. 408/2011, 482/2011, 593/2011, 713/2011 and 751/2011
3 For short ‘PTI’
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2. We may first take note of some relevant facts of the case.
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2.1. An advertisement was issued by the respondent No.1-University on 13 July,
2008, inviting applications for appointment of PTIs in four of its constituent colleges.
The said advertisement laid down three specific conditions which are as follows: -
(a) Each candidate would separately apply for the post of PTI in
respect of each college.
(b) The eligibility criteria for applying for the subject post was
possession of a Bachelor’s degree in Physical Education or
Graduation with Diploma in Physical Education from a recognized
institution.
(c) The age limit for all the posts was prescribed to be as per the
Government rules/orders.
2.2. Pursuant to the aforesaid advertisement, the appellant and the private
respondents submitted their applications along with several other applicants. All the
parties submitted separate applications in respect of each of the four colleges.
2.3. It is not in dispute that the appellant and the private respondents No.5 to 8
were found eligible and were called for an interview. For conducting the interview, the
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respondent No.1 - University constituted a five Members’ Selection Committee .
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2.4. The Selection Committee met on 6 November, 2008 and interviewed the
applicants. The Committee conducted four different sets of interviews for each
candidate in respect of the applications submitted by them for four colleges in
question. Thereafter, a merit list was prepared. A perusal of the said merit list
reveals that though all the parties in the present proceedings were interviewed by the
Selection Committee for the posts available in the four colleges on the same day but
at four different times, there was a great variation in the marks assigned to the
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4 Vide office order dated 27 October, 2008
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appellant and the respondents No.5 to 8 during the interview. This aspect was
particularly noticed by the learned Single Judge, who observed as follows: -
“At this stage, I may notice one thing that stands out in the
tabulation of the merit list. As noted above, all the five writ petitioners
were interviewed for all the four Colleges by the same Committee of
five persons allegedly four times on the same day. All other marks with
regard to academic qualifications and marks for higher qualifications
and experience were the same in all the four charts but the marks
given in interview (viva) varied drastically. For example, petitioner,
Nutan Kumari in one interview was awarded 24 marks out of 30 in
another 16 out of 30 in the third 12 out of 30 and in the 4th 20 out of
30. Such erratic variation is there in all the four merit lists where
someone scores less in one and more in another. University is not
able to give any justification for these markings. Details of other
markings will be discussed at appropriate stage. Upon tabulation of
results on 14th February, 2009 University issued appointment letters
in favour of the four writ petitioners leaving aside Nutan Kumari.
Apparently, the four selected petitioners gave their joining immediately
in February, 2009 itself. Thereafter, pursuant to the orders of the Vice-
Chancellor, by office order dated 13.05.2009, the Registrar of the
University fixed their pay scale at Rs.5000-150-8000.”
2.5. As is evident from the aforesaid observations, the appellant was interviewed
four times by the same Selection Committee on the very same day and each time,
the marks assigned to her varied from 12 to 16 to 20 to 24 (out of a total of 30
marks).
2.6. In February, 2009, the four selected candidates, i.e., respondents No.5 to 8
herein, gave in their joining report and pursuant to the orders passed by the Vice-
Chancellor of the respondent No.1 - University, their pay scales were fixed vide order
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dated 13 May, 2009.
2.7. It transpires from the records that immediately thereafter, complaints were
received by the Chancellor of the University of Bihar in respect of the aforesaid
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selection process and vide order dated 18 June, 2009, a three Members’ Committee
(Inquiry Committee) was appointed to inquire into the selection process adopted in
respect of the PTIs by the respondent No.1 - University.
2.8. The appellant herein also lodged a protest with the Chancellor as to the
manner in which the Selection Committee had conducted the interviews. The Inquiry
Committee submitted a report to the Chancellor of the respondent No.1 - University
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on 7 October, 2009, recommending cancellation of the appointments made and for
action to be taken against the Vice Chancellor and the Registrar of the University.
On receiving the said Inquiry report, the Chancellor directed cancellation of the
appointments made to the post of PTIs and further directed the respondent No.1 -
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University to take necessary action in terms of the communication dated 5 January,
2010.
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2.9. As a result, respondent No.1 - University issued a separate letter dated 15
February, 2010 to the respondents No.5 to 8, who were selected to the subject post
calling upon them to show cause as to why their appointments should not be
cancelled. The said notice was challenged by the respondents No.5 to 8, who filed
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separate writ petitions before the High Court that came to be decided by the
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common judgment and order dated 10 February, 2011, passed by the learned
Single Judge.
5 CWJC No. 3580 of 2010, CWJC No. 3611 of 2010, CWJC No. 3713 of 2010 and CWJC No. 3724 of 2010
4
3. Pertinently, before notices to show cause were issued to respondents No.5 to
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8, the appellant herein filed a separate writ petition challenging the selection of the
respondents No.5 to 8. Afterwards, all the petitions filed by the appellant and
respondents No.5 to 8 were taken up together and decided by the learned Single
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Judge vide common judgment and order dated 10 February, 2011. The writ petition
filed by the appellant was allowed and those filed by the respondents No.5 to 8 were
dismissed. The recommendations made by the Chancellor of the University were
accepted.
4. Aggrieved by the aforesaid decision, respondents No.5 to 8 preferred intra
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court appeals before the Division Bench. By the impugned judgement, the Division
Bench has set aside the well-reasoned order passed by the learned Single Judge
and held that merely because there were some variations in the marks obtained by
various candidates in the four different interviews conducted by the Selection
Committee would alone not indicate with certainty that the selection process was
grossly vitiated for requiring interference. The Division Bench frowned upon the
learned Single Judge for having gone into the said issue and observed that all the
candidates had been subjected to the same yardstick and therefore, no
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discrimination could be alleged. As a result, the writ petition filed by the appellant,
which was allowed by the learned Single Judge, was dismissed as meritless.
5. As far as the respondents No.5 to 8 were concerned (appellants before the
6 CWJC No. 14680 of 2009
7 Letter Patent Appeals No. 482/2011, 408/2011, 593/2011, 713/2011 and 751/2011
5
Division Bench), it was observed that since no notice was issued to the said
respondents at the stage of the inquiry ordered by the Chancellor, respondent No.1 –
University, their termination was bad in law and in violation of the principles of natural
justice. Resultantly, the orders terminating the services of the private respondents,
including the directions issued by the Chancellor, were quashed and set aside with
liberty granted to the authorities to proceed afresh with the inquiry after due notice to
the respondents.
6. It is the aforesaid judgment that has brought the appellant before this Court.
Learned counsel for the appellant has primarily argued that there was no good
reason for the Division Bench to have interfered in a well-reasoned and analyzed
judgment passed by the learned Single Judge where all aspects were carefully
considered on merits before returning the findings. It is submitted that the Division
Bench has completely ignored the fact that there were drastic variations in the marks
assigned to the appellant in the interview which cannot be termed as “some
variation ” as sought to be described in the impugned judgment. While in one
interview, the appellant had scored 24 marks out of 30 marks, on the same day, the
same Selection Committee on conducting another interview of the appellant
assigned her 12 marks out of 30 marks, thus materially affecting the outcome of the
selection process.
7. It is next submitted by learned counsel for the appellant that the respondent
No.6 herein, Shri Chandrama Singh, who was selected and appointed as a PTI in a
women’s college (M.S.K.B. College, Muzaffarpur), was over-aged and therefore,
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ineligible to have even applied for the subject post. Learned counsel submits that the
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respondent No.6 was born on 3 April,1971; the advertisement in question was
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published on 13 July, 2008 and the last date of receipt of the applications was 5
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August, 2008. As on 3 April, 2007, the respondent No.6 had already completed 37
years of age and therefore, he was clearly over age on the date of the advertisement
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itself, i.e., on 13 July, 2008. This aspect was duly noted by the learned Single
Judge and the submission made by the appellant was upheld but the Division Bench
did not discuss the said issue at all in the impugned judgment.
8. On the aforesaid aspect, Dr. Adish C. Aggarwala, learned Senior Advocate
appearing for the respondent No.6 seeks to place reliance on a document filed by the
appellant with the appeal paper book and marked as “Annexure-P4” which is a typed
copy of the file notings of the respondent No.1 - University wherein, it has been
recorded by the Registrar that for the purposes of calculating the eligibility with
respect to the age of the candidates, it was decided that the age shall be counted as
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on 1 January, 2008 since the advertisement process was commenced in the said
year. The said recommendation made by the Registrar was duly approved by the
Vice-Chancellor on the same day.
9. We have perused the records and given our thoughtful consideration to the
arguments advanced by both sides.
10. It has been time and again held in judicial verdicts that the selection process
is bound by the terms and conditions of an advertisement inviting applications from
eligible candidates. Unless it can be demonstrated that an advertisement has been
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issued contrary to any Statute or the applicable rules, it is binding on all the
participants to the point that not even the Selection Committee has the jurisdiction to
lay down a separate yardstick or basis for selection as that would be tantamount to
legislating rules of selection. It is equally well settled that once the process of
selection commences, the criteria prescribed in the advertisement for conducting the
selection of the eligible candidates cannot be altered. There is sound logic behind the
same which is that if the selection criteria is tinkered with in midstream, say for
example by lowering the standards, a party can have a legitimate grievance that had
it known that the criteria would be reduced subsequently, it too could have applied for
the said post.
10.1. To elucidate the point above, we may usefully refer to the decision in
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Dr. Krushna Chandra Sahu and Others v. State of Orissa and Others where it
has been held thus :
“ 31. Now, power to make rules regulating the conditions of service of
persons appointed on Government posts is available to the Governor
of the State under the proviso to Article 309 and it was in exercise of
this power that the present rules were made. If the statutory rules, in a
given case, have not been made, either by Parliament or the State
Legislature, or, for that matter, by the Governor of the State, it would
be open to the appropriate Government (the Central Government
under Article 73 and the State Government under Article 162) to issue
executive instructions. However, if the rules have been made but they
are silent on any subject or point in issue, the omission can be
supplied and the rules can be supplemented by executive instructions
(See: Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910 :
(1968) 1 SCR 111 : (1968) 2 LLJ 830] .)
32. In the instant case, the Government did neither issue any adminis-
trative instruction nor did it supply the omission with regard to the cri-
teria on the basis of which suitability of the candidates was to be de-
8 (1995) 6 SCC 1
8
termined. The members of the Selection Board, of their own, decided
to adopt the confidential character rolls of the candidates who were al-
ready employed as Homoeopathic Medical Officers, as the basis for
determining their suitability.
33. The members of the Selection Board or for that matter, any
other Selection Committee, do not have the jurisdiction to lay
down the criteria for selection unless they are authorised
specifically in that regard by the Rules made under Article
309 ……”
[Emphasis added]
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(Also refer : B.S. Yadav and Others v. State of Haryana and Others ; P.K.
10
Ramachandra Iyer and Others v. Union of India and Others ; Umesh
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Chandra Shukla v. Union of India and Others ; and Durgacharan Misra v.
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State of Orissa )
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10.2. In Bedanga Talukdar v. Saifudaullah Khan and Others , this Court
highlighted the fact that any power of relaxation of the stipulated selection procedure
ought to be mentioned in the advertisement in the following words:-
“29. We have considered the entire matter in detail. In our opinion, it is
too well settled to need any further reiteration that all appointments to
public office have to be made in conformity with Article 14 of the
Constitution of India. In other words, there must be no arbitrariness
resulting from any undue favour being shown to any candidate.
Therefore, the selection process has to be conducted strictly in
accordance with the stipulated selection procedure.
Consequently, when a particular schedule is mentioned in an
advertisement, the same has to be scrupulously maintained.
There cannot be any relaxation in the terms and conditions of the
advertisement unless such a power is specifically reserved. Such
a power could be reserved in the relevant statutory rules. Even if
power of relaxation is provided in the rules, it must still be
mentioned in the advertisement. In the absence of such power in
the rules, it could still be provided in the advertisement.
However, the power of relaxation, if exercised, has to be given
due publicity . This would be necessary to ensure that those
9 (1980) Supp. SCC 524
10 (1984) 2 SCC 141
11 (1985) 3 SCC 721
12 (1987) 4 SCC 646
13 (2011) 12 SCC 85
9
candidates who become eligible due to the relaxation, are afforded an
equal opportunity to apply and compete. Relaxation of any condition
in advertisement without due publication would be contrary to
the mandate of equality contained in Articles 14 and 16 of the
Constitution of India.
30. A perusal of the advertisement in this case will clearly show that
there was no power of relaxation. In our opinion, the High Court
committed an error in directing that the condition with regard to the
submission of the disability certificate either along with the application
form or before appearing in the preliminary examination could be
relaxed in the case of Respondent 1. Such a course would not be
permissible as it would violate the mandate of Articles 14 and 16 of
the Constitution of India.”
[Emphasis added]
(Also refer: Krishna Rai and Others v. Banaras Hindu
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University and Others )
10.3. It is also a part of settled service jurisprudence that merely by applying for a
post pursuant to an advertisement, a candidate does not automatically acquire any
vested right of selection. He only acquires a right for being considered for selection
strictly in accordance with the extant rules. This Court has held in N.T. Devin Katti
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and Others v. Karnataka Public Service Commission and Others as follows:
“11. There is yet another aspect of the question. Where advertisement
is issued inviting applications for direct recruitment to a category of
posts, and the advertisement expressly states that selection shall be
made in accordance with the existing rules or government orders, and
if it further indicates the extent of reservations in favour of various
categories, the selection of candidates in such a case must be made
in accordance with the then existing rules and government orders.
Candidates who apply, and undergo written or viva voce test acquire
vested right for being considered for selection in accordance with the
terms and conditions contained in the advertisement, unless the
advertisement itself indicates a contrary intention. Generally, a
candidate has right to be considered in accordance with the
14 (2022) 8 SCC 713
15 (1990) 3 SCC 157
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terms and conditions set out in the advertisement as his right
crystallizes on the date of publication of advertisement, however
he has no absolute right in the matter . If the recruitment Rules are
amended retrospectively during the pendency of selection, in that
event selection must be held in accordance with the amended Rules.
Whether the Rules have retrospective effect or not, primarily depends
upon the language of the Rules and its construction to ascertain the
legislative intent. The legislative intent is ascertained either by express
provision or by necessary implication; if the amended Rules are not
retrospective in nature the selection must be regulated in accordance
with the rules and orders which were in force on the date of
advertisement. Determination of this question largely depends on the
facts of each case having regard to the terms and conditions set out in
the advertisement and the relevant rules and orders. Lest there be
any confusion, we would like to make it clear that a candidate on
making application for a post pursuant to an advertisement does
not acquire any vested right of selection, but if he is eligible and
is otherwise qualified in accordance with the relevant rules and
the terms contained in the advertisement, he does acquire a
vested right of being considered for selection is accordance with
the rules as they existed on the date of advertisement . He cannot
be deprived of that limited right on the amendment of rules during the
pendency of selection unless the amended rules are retrospective in
nature.”
[Emphasis added]
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(Also refer : Sureshkumar Lalitkumar Patel v. State of Gujarat )
10.4. Further, once an advertisement has been issued and the selection criteria
prescribed, there is little scope for relaxing the norms, more so, by the Selection
Committee unless and until it can be adequately demonstrated that it had the power to
do so. We may allude to a decision of this Court in Secretary, A.P. Public Service
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Commission and B. Swapna and Others which highlights the adverse
consequences of interfering with the criteria of selection laid down under the rules in
the following words:
16 2023 SCC OnLine SC 167
17 (2005) 4 SCC 154
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“14. The High Court has committed an error in holding that the
amended rule was operative. As has been fairly conceded by learned
counsel for Respondent 1 applicant it was the unamended rule which
was applicable. Once a process of selection starts, the prescribed
selection criteria cannot be changed. The logic behind the same is
based on fair play. A person who did not apply because a certain
criterion e.g. minimum percentage of marks can make a legitimate
grievance, in case the same is lowered, that he could have applied
because he possessed the said percentage. Rules regarding
qualification for appointment if amended during continuance of the
process of selection do not affect the same. That is because every
statute or statutory rule is prospective unless it is expressly or by
necessary implication made to have retrospective effect. Unless there
are words in the statute or in the rules showing the intention to affect
existing rights the rule must be held to be prospective. If the rule is
expressed in a language which is fairly capable of either interpretation
it ought to be considered as prospective only. (See P.
Mahendran v. State of Karnataka [(1990) 1 SCC 411 : 1990 SCC
(L&S) 163 : (1990) 12 ATC 727] and Gopal Krushna Rath v. M.A.A.
Baig [(1999) 1 SCC 544 : 1999 SCC (L&S) 325] .)
15. Another aspect which this Court has highlighted is scope for
relaxation of norms. Although the Court must look with respect upon
the performance of duties by experts in the respective fields, it cannot
abdicate its functions of ushering in a society based on rule of law.
Once it is most satisfactorily established that the Selection
Committee did not have the power to relax essential
qualification, the entire process of selection so far as the
selected candidate is concerned gets vitiated. In P.K.
Ramachandra Iyer v. Union of India [(1984) 2 SCC 141 : 1984 SCC
(L&S) 214 ] this Court held that once it is established that there is no
power to relax essential qualification, the entire process of selection of
the candidate was in contravention of the established norms
prescribed by advertisement. The power to relax must be clearly spelt
out and cannot otherwise be exercised.”
[Emphasis added]
11. Coming back to the case in hand, the learned Single Judge has scrupulously
examined the records and the pleadings in the petitions and made the following
pertinent observations in respect of the selection process adopted by the Selection
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Committee constituted by the respondent No.1 - University :
“There are three types of physical education qualification. The
first is a three year physical education course after Intermediate
resulting in degree of B.P.E. The second is a three year Graduation
course in any subject after Intermediate plus one year physical
education course conducted by University leading to B.P. Ed. Degree
and the third is three year Graduation course in any subject after
Intermediate and one year physical education diploma course
conducted by School Examination Board leading to D.P. Ed. The
selection committee on the date of interview evolved marking system
for Graduation level which as noted above was as follows.
For candidates with B.P.E and B.P. Ed. their marks scored in
B.P.E and B.P. Ed. were only taken and in a graded manner. If they
had scored more than 75% they were awarded 40 out of 40, if they
scored 60-75% they were awarded 30 out of 40, if they had scored 45-
60% they were awarded 25 out of 40 and if they had scored below
45% they were awarded 20 out of 40 but when it came to D.P. Ed.
their marks scored were calculated differently. Their marks out of 40
for Graduation was split into two of 20 marks each, 20 marks for their
three years Graduation course and only 20 marks maximum for their
physical education course. The result was that though petitioner,
Nutan Kumari had 83.6% in D.P. Ed., she was awarded only 20 marks,
whereas others who had scored lesser marks in physical education
but had B.P.E. or B.P. Ed. were given higher marks on that basis
ignoring their Graduation or other marks. For example, Ravi Shankar
Kumar who had got 80% was given 40 marks, Mithilesh Kumar Mani
who had scored 72.6% was given 30 marks, Chandrama Singh who
had scored 55% was given 25 marks and Sanjay Kumar Singh scored
57% was given 25 marks.
Then the challenge is to the marks on higher qualification and
experience. It is submitted that the two are different criterion but the
total marks combined has been fixed at 10 not disclosing any
bifurcation or any criteria.
Then is the marks for viva (interview), which is 30% of the
total marks, as noted in the very beginning, the same set of five
members on the same day interviewed the selected candidates four
times, one time each for each College and gave drastically different
marks. First, in this regard it is submitted that this shows the erratic
irrational marking on subjective satisfaction, which interview marks
being as high as 30% is irrational, especially, when it is showed that
the difference between selection and non-selection was barely a few
marks.”
12. After carefully examining the entire records, the learned Single Judge has
made the following pertinent observations:-
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“Having considered the rival submissions, in my view, the
hostile discrimination and arbitrariness is writ large on the face
of the records. No one with any amount of reasonable certainty
knew the selection procedure or the process. It stands
undisputed that the criterion were laid down only on the date of
interview even then it was not made known to people. This is a
clear cut case of bad and wrong administrative action. There is
absolutely no transparency and such process cannot be
sanctified by the Court. On top of it to say that petitioner, Nutan
Kumari had participated in the selection process and, as such,
could not challenge it after appointments were made, would be
travesty of justice. Anyone could have challenged the criteria if they
were disclosed in the advertisement or before the interview or before
the selection but all that was kept secret. That came to be known
much later after appointments were made. That cannot estop Nutan
Kumari from challenging what she did not know and what was never
made public. This objection by the University and the other petitioners
cannot be sustained. In my view, the law is settled. If a person
participates in selection process with his eyes open knowing the
selection process then upon failure to get selected he cannot
turn around and challenge the same. He would be deemed to
have acquiescence to the same. That is not at all the case in the
present as noted above. Nutan Kumari challenged the process
even before the enquiry committee gave its report. The challenge
cannot be said to be belated in any aspect of the matter. The
criterion were not disclosed. It is only after the criterion were
disclosed to some extent can it be said that a person was in a
position to challenge. If that is kept in mind it would be seen that
there was no unreasonable delay in the challenge at all. Moreover, the
extent of arbitrariness in the selection process, as would be noticed,
fully justifies in setting aside the selection process and the selection
itself.
Now, coming to the markings in respect of Graduation. As
noted above, there are three types of physical education courses. One
is a three year course after Intermediate and the other two being one
year courses after three years Graduation in any subject. It matters
little whether it is a one year Diploma course or one year degree
course because under statute University alone can grant degree, the
School Examination Board cannot and that is the only reason for this
distinction. If classification had to be made, subject to it being
reasonable, it could be between the three years physical
education course and the one year physical education course
but the moot point to be noted here is that in the advertisement
all are treated similarly for eligibility with no preference. or
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distinctions. If the advertisement itself did not provide for any
differentiation or different treatment then at the time of
evaluation no new criteria could be laid down. The effect is evident
from the marks sheet of petitioner, Nutan Kumari. She got 83.6%
marks in D.P.Ed and in three years Graduation course she had got
48.8%. Thus, totally she was given 32 marks being 20 plus 12
respectively out of 40 marks. Ravi Shankar Kumar, had 80% either in
B.P.E. or B.P.Ed. he was given 40 marks out of 40. There are
various instances, as noted earlier, to show the arbitrary results
of this arbitrary criteria, which criteria, as noted above, was
decided at the time of interview. When all applications had been
scrutinized the assertion that these criterion were evolved to
promote certain candidates cannot, thus, be said to be
unfounded.
Again, when we come to marks of higher qualifications
and experience, no one has disclosed as to what was the criteria
of awarding marks under this head. Again, it is left to the whims
of the selection committee which cannot be countenanced.
Again, we come to the case of marks for interview, the things are
worst. The same set of five people on the same day interviewed
all the five petitioners four times. for the same job and in each
interview the marks drastically varied. These are subjective
evaluation based on subjective satisfaction it is these marks which
have made substantial difference, as noted above, the margin being
very small. Apart from this, to this Court it appears that subjective
marks cannot be, in the nature of appointment, as high as 30%. These
two things coupled together make the process quite arbitrary and
discriminatory. Thus, the process as a whole as adopted cannot be
said to be valid in law. The process must thus be struck down and is
struck down. Consequently, it is held that the selection was bad.”
[Emphasis added]
13. As can be seen from the above, the learned Single Judge took pains to
scrutinize the entire process adopted by the Selection Committee and returned a
finding that the same was arbitrary, irrational and liable to be set aside. We are in
concurrence with the said findings returned by the learned Single Judge.
14. Keeping in mind the challenge laid by the appellant herein to the selection
process what emerges from the observations made by the learned Single Judge is
15
as follows:-
(i) That the Selection Committee proceeded to fix the criteria for assigning
marks to the candidates on the date of conducting the interviews. The
said criteria was neither revealed in the advertisement, nor disclosed to
the candidates prior to or even at the time of conducting the interviews.
(ii) That though the advertisement only laid down the eligibility criteria by
virtue of the qualifications prescribed for inviting applications from
applicants, the Selection Committee on its own fixed a total of 100
marks and assigned different marks for different academic
qualifications, i.e., 10 marks for matriculation, 10 marks for intermediate
and 40 marks for graduation.
(iii) That the marks for the interview were fixed by the Selection Committee
as 30 per cent of the total marks on the day of the interview itself.
Instead of conducting a single interview for each candidate particularly,
since all of them had applied and submitted separate applications for
seeking appointment in the four constituent colleges under the
respondent No.1 – University, the Committee decided to conduct four
sets of interviews in respect of each of the candidates who had applied
for appointment in different colleges. A close look at the marks assigned
in the interviews showed the erratic assessment made by the Members
of the Selection Committee.
15. In view of the above facts and circumstances, the learned Single Judge rightly
16
concluded that the entire process adopted by the Selection Committee was vitiated
and could not withstand judicial scrutiny.
16. As for the respondent No.6, besides the observations made above, we may
additionally note that the maximum age limit for appointment to the subject post as
prescribed by the State Government for General category male candidates, which in
the instant case all the private respondents before the Court fall under, was 37 years
and for the unreserved Category (Women) was 40 years. In the counter affidavit
filed by the respondent No.3, Registrar, University of Bihar, it has been stated in
paragraph 14 as follows:-
“That in reply to paragraph 5(c) of ground it is stated that as contained
in advertisement, the age limit for the post will be applicable as per
Government Rule or Order. It is stated that the Government has
st
provided the cut off date to be 1 of August, of the each year for
determination of age.”
17. In the light of the aforesaid categorical stand taken by the respondent No.1 -
University that the cut-off date for determining the age limit of the applicants in terms
of the applicable rules was to be taken as the first day of August of each year, which
st
in the present case would mean 1 August, 2008, quite evidently, the respondent
No.6 was not qualified for even applying for the subject post, having crossed the
maximum age prescribed for a general category (Male) candidate, i.e., 37 years. In
any event, the Government Rule/ Order mentioned in the advertisement having been
elaborated by the respondent No.3 in the counter affidavit, any reliance sought to be
placed by the respondents No.5 to 8 on the internal file notings of the University that
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too, much after the date of issuance of the advertisement (25 October, 2008 to 27
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October, 2008), would not be of any consequence.
18. As a result of the aforesaid discussion, we are of the opinion that the
impugned judgment cannot be sustained and the same is accordingly quashed and
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set aside. The judgment of the learned Single Judge dated 10 February, 2011 is
restored. As a sequitur to the aforesaid order, the appointment orders in respect of
the respondents No.5, 7 and 8 are quashed and set aside. It is further held that the
respondent No.6 being ineligible for applying to the subject post, his application
ought to have been rejected outright and therefore, his appointment order is hereby
quashed. This leaves us with four posts of PTI’s in four constituent colleges under
the respondent No.1 - University that are required to be filled up. For this purpose, it
is deemed appropriate to direct the University to constitute a Selection Committee,
which shall consider the candidature of the appellant and the respondents No.5, 7
and 8. The Selection Committee shall conduct a single interview in respect of the
aforesaid candidates irrespective of the number of applications that they may have
been filed for the subject posts. While conducting the interview, no separate marks
shall be assigned for the different qualifications possessed by the candidates
inasmuch as the advertisement issued by the respondent No.1 - University did not
contain any such stipulation.
19. A common merit list shall be prepared by the Selection Committee, keeping in
mind the qualifications of each of the aforesaid candidates as also the marks
allocated to them in the interview to be conducted. Thereafter, a seniority list shall be
drawn and the candidates shall be assigned to the respective colleges, in
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accordance with the said list. The entire exercise shall be completed within eight
weeks from the date of constitution of the Committee and the results shall be
declared under intimation to the appellant and the respondents No. 5, 7 and 8.
20. It is further directed that in view of the past history of the matter where serious
allegations were levelled against the Vice-Chancellor and the Registrar of the
respondent No.1 - University and the report submitted by the Inquiry Committee
constituted by the Vice-Chancellor has indicted the aforesaid officers, we leave it to
the discretion of the Chancellor to constitute a Selection Committee in accordance
with law within four weeks from the date a copy of this order is placed before him.
21. It is made clear that since no other candidate had approached the High Court
except for the appellant herein and the respondents No.5 to 8, the selection process
shall be confined to the said parties alone.
22. The civil appeals are allowed and disposed of on the above terms. There shall
be no orders as to costs.
…………………………………J.
(HIMA KOHLI)
…………………………………J.
(AHSANUDDIN AMANULLAH)
NEW DELHI;
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12 October, 2023
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