Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 45784580 of 2022
(Arising out of S.L.P.(C) Nos.3118688 of 2016)
KRISHNA RAI (Dead) APPELLANT(S)
THROUGH LRs & ORS.
VERSUS
BANARAS HINDU UNIVERSITY
THROUGH REGISTRAR & ORS. RESPONDENT(S)
JUDGMENT
Vikram Nath, J.
1. Leave granted.
2. I.A.D.No.133982 of 2021 is allowed.
Signature Not Verified
Digitally signed by
Rajni Mukhi
Date: 2022.06.16
14:24:17 IST
Reason:
1
3. In these three Civil Appeals, this Court has
been called upon to decide whether principle of
estoppel and acquiescence will prevail over
statutory service rules prescribing the procedure
for promotion of ClassIV employees to ClassIII
1
working in the Banaras Hindu University ,
Varanasi, a Central University. The learned
Single Judge was of the view that the statutory
rules would prevail and must be strictly adhered
to, whereas, the Division Bench, although,
agreeing with the reasoning of the learned Single
Judge that the procedure prescribed under the
rules was violated, still proceeded to set aside
the judgment of the learned Single Judge
applying the principle of estoppel and
acquiescence over and above the eligibility
1 BHU
2
conditions having statutory force laid down by
the statutory rules.
4. The learned Single Judge had allowed the
writ petition filed by the appellants and after
setting aside the promotion of respondent Nos.3
to 16, had directed the BHU to carry out the
exercise for promotion afresh as per the law and
the observations made in the said judgment. The
Division Bench allowed the appeal, set aside the
judgment of the learned Single Judge and
dismissed the writ petition. Aggrieved by the
same, the original writ petitioners are in appeal
before this Court.
5. Facts in brief are that for filling up 14 posts
of ClassIII (Junior Clerk Grade) by way of
promotion, the University issued a
3
Notification/Advertisement dated 17.12.2005
inviting applications from permanent ClassIV
employees for promotion as Junior Clerk in the
PayScale of Rs.30504590. The eligibility
prescribed in the aforesaid Notification reads as
under:
“Eligibility:
All ClassIV employees, who have put in five
years services and who have passed
matriculation examination or equivalent will be
eligible for appointment as Junior Clerk under
25% promotion quota.
Such eligible candidates will be tested in:
A typing test in English/Hindi for a minimum of
30 words per minutes; and after qualifying in
the test.
Note: If an employee does not passed the typing
test and is otherwise eligible for promotion
he/she be promoted subject to the condition that
he/she passes the typing test within two years
from the date of his/her promotion failing which
he/she will be reverted.
Provided further that for such employees, typing
test be held at least twice a year.
4
Two papers of simple English, Hindi and
Arithmetic of one hour duration.”
6. It would be worthwhile to mention here that
in the meantime, it was resolved to hold a
computer typing test on 20.04.2006. However,
upon a representation being made, the said
computer type test was deferred vide letter dated
19.04.2006 and, later vide communication dated
04.05.2006, it was informed that final merit list
would be based on the marks obtained in typing
test, written test and interview. The type test
could be taken on a computer or on a manual
typewriter. The typing test was held on
16.05.2006; the written test was held on
23.09.2006 and interview was held on
31.05.2007 and 01.06.2007. Thereafter, merit
list was prepared by the Board of Examiners
appointed for making the selection/promotion
5
and, accordingly, as per its recommendations,
14 selected candidates (respondent nos.3 to 16)
were issued appointment letters on 05.06.2007.
The appellants made a representation against
the decision to appoint respondent nos.3 to 16,
which was rejected by the competent authority
on 02.07.2007.
7. Aggrieved, the appellants filed Writ Petition
No.37741 of 2007; Sri Krishna Rai and 33
others impleading the Banaras Hindu University
through its Registrar as respondent No.1, Vice
Chancellor, Banaras Hindu University as
respondent No.2, and the 14 selected candidates
as respondent nos.3 to 16. The petition was filed
primarily on the ground that the
Advertisement/Notification, which was issued
6
laying down the eligibility conditions, as per
paragraph 6.4 of the Manual did not provide for
any interview, but later on, changing the rules of
the game and in violation of the eligibility
conditions laid down in para 6.4, the Board of
Examiners which did not have any authority or
power to amend paragraph 6.4 laying down the
eligibility conditions introduced an interview.
The Board of Examiners further laid down the
criteria for preparing the merit list out of total of
100 marks, with the following breakup: 20
marks for the type test, 60 marks for the written
test of Hindi, English and Arithmetic and 20
marks for the interview.
8. In the counteraffidavit filed by the BHU as
also by the respondent nos.3 to 16, the eligibility
7
conditions as laid down in para 6.4 of the
Manual and duly approved by the Executive
Council, which is the supreme Authority, was
not disputed. Even during the course of the
arguments, learned counsel for the BHU agreed
to the submission of the appellants that the
Board of Examiners had no authority to alter the
eligibility conditions or the procedure prescribed
under para 6.4 of the Manual. It is further
undisputed that Board of Examiners was not
vested with any authority to alter the procedure
for promotion or in other words, it could not
amend para 6.4 of the Manual. It is also an
admitted position that it is only the Executive
Council, which could have amended or modified
the procedure/eligibility prescribed under para
6.4 of the Manual.
8
9. The learned Single Judge after considering
the entire material on record and also the catena
of decisions relied upon by the respondentBHU
and the private respondents was of the view that
the Board of Examiners committed grave error in
making selections by awarding marks on the
type test, written test and interview and then
preparing the merit list.
10. The learned Single Judge allowed the writ
petition. It quashed the orders impugned dated
05.06.2007 and 02.07.2007 as also the
appointments of respondent Nos.3 to 16 on
ClassIII post and further directed BHU to hold
fresh selections for promotion to the post of
ClassIII, complete the same expeditiously within
three months, strictly in accordance with the
9
Rules and in the light of observations made
above. It also awarded costs quantified at
Rs.50,000/. The operative part of the judgment
of learned Single Judge is reproduced
hereunder:
“56. In the result, the writ petition is allowed.
Impugned orders dated 5.6.2007 and 2.7.2007
and appointments of respondents 3 to 16 on
Class IV posts are hereby quashed.
57. The University is directed to hold fresh
selection for promotion to the post of Class III
against the vacancies for which selection was
held by notification dated 17.12.2005 and
complete the same expeditiously and in any case,
within three months from the date of production
of certified copy of this order strictly in
accordance with Rules and in the light of
observations made above.
58. Petitioners are entitled to costs which I
quantify to Rs. 50,000/“.
11. The finding recorded by the learned Single
Judge as contained in paragraph Nos.53, 54 and
55 are also reproduced hereunder:
10
“53. In the present case, I am constrained to
observe that the notification published by
University categorically reiterated what was
contained in Clause 6.4 of the Manual. The rules of
game were made known to everybody but Board of
Examiners, which was constituted to hold selection
strictly in accordance with aforesaid decided
norms, changed the rules in between the game and
held selection in a manner unknown to the extant
Rules applicable for promotion from Class IV to
Class III in BHU. This was wholly illegal and
without jurisdiction. It is well settled that rules of
games cannot be allowed to be changed during the
game.
54. This Court has no manner of doubt in the light
of above discussion that petitioners have been
discriminated and have been considered in a
manner which was never contemplated by the
University for considering promotion from Class IV
to Class III.
55. One more aspect also not be ignored. In
making such promotions persons totally unequal to
each other in various respects have to be
considered. A Class IV employee who was
appointed in 1977 has much longer experience of a
Class IV post but in the context of personality and
other aspects, he may not compare with his much
junior entered in service as Class IV employee
after 10, 20 or 25 years. The subsequent
11
educational advancement also cannot be ignored.
It is evident that persons who were appointed in
1977 to 1997, i.e. petitioners, got occasion for
consideration for promotion to Class III post after
decades of service. For such persons, making
interview as a part of selection when it was not
contemplated in the relevant procedure prescribed
by the University obviously made it difficult for
them to qualify since they may not compete with
young and youngest new employees having better
qualifications. But one must also have considered
that they at the fag end of service to their credit,
have long experience. Better honour and respect
needed so that they may retire from a higher post
after getting at least one promotion at the fag end
of their service. The University must have all these
facts and other relevant aspects in mind when laid
down the procedure in the Manual, but
unfortunately the Board of Examiners acted
unmindful of wider aspects. The acted wholly
illegally by ignoring the established procedure laid
down in the Rules and on the contrary settled their
own selection procedure by exceeding their
authority and jurisdiction.”
12. BHU as also the private respondent nos. 3 to
16 preferred intracourt Appeals registered as
12
Special Appeal No.24 of 2012 (Banaras Hindu
University and another Vs. Sri Krishna Rai and
others), Special Appeal No.9 of 2012 (Shri Sarvjit
Singh and others Vs. Sri Krishna Rai and others)
and Special Appeal No.25 of 2012 (Ram Kishore
Pandey and others Vs. Banaras Hindu
University and others). The Division Bench vide
judgment dated 29.07.2016 was of the view, as
already stated above, that the appellants having
appeared in the examination process as also the
interview without any protest, upon being
unsuccessful could not have challenged the
selection process. The Division Bench relied
upon a number of decisions, which we shall
shortly discuss, in support of its view and
accordingly allowed the Special Appeals, set
13
aside the judgment of the learned Single Judge
and dismissed the writ petition.
13. Having heard learned counsel for the
parties and having perused the material on
record as also the case laws relied upon by the
learned counsel for the parties, we now proceed
to deal with the issue at hand.
14. As per para 6.4 of the Manual duly
approved by the Executive Council’s Resolution
rd
No.223 dated 2/3 of November, 1980, all Class
IV employees, who have put in five years’ service
and who have passed matriculation examination
or equivalent, would be eligible for promotion to
the post of Junior Clerk Grade. Such eligible
candidates would be tested in a typing test in
English/Hindi for a minimum speed of 30 words
per minute. The note appended to such Clause
14
of typing test mentions that if an employee does
not pass the typing test and is otherwise eligible
for promotion, he be promoted subject to the
condition that he passes the typing test within
two years from the date of his promotion failing
which, he would be reverted. The note further
provided that for such employees the typing test
would be held twice a year. Para 6.4(ii)(b)
provided that two papers of simple English,
Hindi and Arithmetic of one hour duration
would be held.
15. The Executive Council vide its Resolution
No.131 dated 29/30.03.1996 had raised the
vacancies from 20% to 25% for promotion of
GroupD inservice employees and it further
provided that the seniority list would be
prepared after passing the departmental test
15
and it further provided that no relaxation in
prescribed qualification shall be given for in
service employees.
16. The net effect of the above eligibility and
procedure prescribed for promotion of GroupD
ClassIV employees to the cadre of Junior Clerk
would be that (1) a type test would be held with
a minimum speed of 30 words per minute in
Hindi/English. This type test was not
mandatorily required to be qualified and even
those eligible candidates, who could not qualify
the type test, but were otherwise eligible having
passed in the departmental test, would be
allowed two years’ time after joining to qualify
the typing test and for such candidates, typing
test would be held twice a year.
16
17. The only test required for eligible candidates
was to pass in the departmental test i.e. the test
of simple English, Hindi and Arithmetic. Thus, if
an eligible candidate passes in the written test of
simple English, Hindi and Arithmetic and also
passes in the type test, would be entitled to be
placed in the seniority list for promotion. It
further mandated that even where eligible
candidates had passed in the departmental
written test of simple English, Hindi and
Arithmetic, but could not pass in the typing test,
would still be eligible for promotion and be
placed in the seniority list with a rider that
he/she would have to qualify the typing test
within two years and such typing test for these
promoted candidates would be held twice a year,
that is to say that they would have at least four
17
chances of appearing in the typing test and
qualifying it subsequent to their promotion.
18. In the present case, the Board of Examiners
comprising of large number of Members changed
the entire procedure and they established a
completely new procedure. They awarded 20
marks for the type test treating it to be
compulsory, 60 marks for the written
departmental test of simple English, Hindi and
Arithmetic with 20 marks for each subject and
further introduced an interview of 20 marks.
Thus, the merit list was to be prepared on the
total 100 marks as distributed above.
19. There is neither any provision nor any other
indication in the Manual duly approved by the
Executive Council for preparing such a merit list
based upon the marks awarded under different
18
heads. The promotion was to be made on the
basis of seniority subject to passing the
departmental written test, once the candidate
was eligible having five years’ experience in
ClassIV and matriculation certificate or
equivalent. The intention and object as culled
out from the aforesaid eligibility procedure was
that, seniority subject to qualifying the written
test would be the criteria for promotion.
20. The Board of Examiners on their own
changed the criteria and made it purely merit
based by introducing an interview and also
preparing the merit list on the basis of marks
awarded in the type test, written test and
interview. As per the provisions of Clause 6.4 of
the Manual, type test was not mandatory.
Anybody who would fail in the type test, could
19
also be promoted subject to the rider that they
would have to qualify the type test within two
years from his joining.
21. What we notice is that, the Division Bench
approved the reasoning of the learned Single
Judge. The relevant extract of the judgment of
the Division Bench is reproduced below:
“Learned Single Judge as already noted above has
rightly proceeded to observe that interview was not
at all subscribed by the provisions holding the field.
We are also of the same view that procedure
prescribed ought to have been adhered to by the
Board of Examiners. Board of Examiners on their
own could not have changed the procedure already
holding the field as laid down by the Executive
Council.”
22. However, the Division Bench fell in error in
applying the principle of estoppel that the
appellants having appeared in the interview and
being unsuccessful proceeded to challenge the
same and on that ground alone, allowed the
20
appeals, setaside the judgment of the learned
Single Judge. The Division Bench having
approved the reasoning of the learned Single
Judge, ought not to have interfered in the
judgment of the learned Single Judge on a
technical plea. The Division Bench ought to have
considered that the appellants were ClassIV
employees working from 1977 onwards and
expecting from them to have raised serious
objection or protest at the stage of interview and
understanding the principles of changing the
Rules of the game, was too farfetched,
unreasonable and unwarranted.
23. The case laws relied upon by the Division
Bench would have no application in the facts of
the present case as none of the judgments relied
upon by the Division Bench laid down that
21
principle of estoppel would be above law. It is
settled principle that principle of estoppel
cannot override the law. The manual duly
approved by the Executive Council will prevail
over any such principle of estoppel or
acquiescence.
24. The Division Bench relied upon the
following judgments:
(1) Union of India and another Vs. N.
2
Chandrashekharan and others .
Vs.
(2) Utkal University and others Dr. N.C.
3
Sarangi and others .
4
(3) Chandra Prakash Tiwari Vs. Shakuntala .
5
Vs.
(4) K.A. Nagmani Indian Airlines .
(5) Madan Lal and others Vs. State of
6
Jammu and Kashmir and others .
2 JT 1998(1) SC 295
3 JT 1999 (1) SC 101.
4 2002 (6) SCC 127
5 2009 (5) SCC 515
6 1995(3) SCC 486
22
25. In the case of Chandrashekharan (supra) ,
the plea taken by the unsuccessful candidates
was that the marks prescribed for interview and
confidential reports were disproportionately high
and the authorities could not fix a minimum to
be secured either in interview or in the
assessment of annual confidential reports. In
the above case, there was no violation of any
statutory rules or the eligibility determined by
the rule making authority.
26. In the case of the
Utkal University (supra),
objection taken by the unsuccessful candidates
was with regard to the composition of the
Selection Committee. This again would not have
any application to the facts of the present case.
27. In the case of
Chandra Prakash Tiwari
, the unsuccessful candidate did not find
(supra)
23
the result of the interview palatable and the
objection taken was that the process of interview
was unfair. This also has no application to the
facts of the present case.
28. In the case of K.A. Nagmani (supra), the
unsuccessful candidates were given equal
opportunity and no violation of any statutory
rule was alleged, as such, this judgment would
also have no application.
29. In the case of Madan Lal (supra), again the
objection taken by the unsuccessful candidate
was regarding the process of interview being
unfair. This case also does not have any
application to the facts of the present case.
30. On the contrary, what we find is that, in the
case of
Dr. Krushna Chandra Sahu and others
24
7
Vs. State of Orissa and others , it has been
held that the suitability criteria is to be laid
down by the rule making authority and that the
selection criteria cannot be laid down by the
Selection Board/Selection Committee unless
specifically authorized. In the present case,
firstly, there was no authorization to the Board
of Examiners to lay down the selection criteria
and further there was clear violation of the
suitability criteria laid down by the rule making
authority. Paragraph nos. 31, 32, 33, 34, 35 and
36 of the said judgment are reproduced
hereunder:
“31. Now, power to make rules regulating the
conditions of service of persons appointed on
Govt. 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
7 1995 (6) SCC 1
25
case, have not been made, either by the
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).
32. In the instant case, the Government did
neither issue any administrative instruction nor
did it supply the omission with regard to the
criteria on the basis of which suitability of the
candidates was to be determined. The members
of the Selection Board, of their own, decided to
adopt the confidential character rolls of the
candidates who were already 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. It is basically the function of
the Rule making authority to provide the basis for
26
selection. this Court in State of Andhra Pradesh
and Anr. v. V. Sadanandam and Ors observed as
under: (SCC pp. 58384, para 17):
“We are now only left with the reasoning of the
Tribunal that there is no justification for the
continuance of the old rule and for personnel
belonging to either zone being transferred on
promotion to offices in other zones. In drawing
such conclusion, the Tribunal has travelled
beyond the limits of its jurisdiction. We need only
point out that the mode of recruitment and the
category from which the recruitment to a service
should be made are all matters which are
exclusively within the domain of the executive. It
is not for judicial bodies to sit in judgment over
the wisdom of the executive in choosing the mode
of recruitment of the categories from which the
recruitment should be made as they are matters
of policy decision falling exclusively within the
purview of the executive.” (Emphasis supplied).
34. The Selection Committee does not even have
the inherent jurisdiction to lay down the norms
for selection nor can such power be assumed by
necessary implication. In P.K. Ramachandra lyer
and Ors. v. Union of India and Ors . (SCC pp. 180
81 para 44) , it was observed :
“By necessary inference, there was no such
power in the ASRB to add to the required
qualifications. If such power is claimed, it has to
27
be explicit and cannot be read by necessary
implication for the obvious reasons that such
deviation from the rules is likely to cause
irreparable and irreversible harm”.
35. Similarly, in Umesh Chandra Shukla Etc. v.
Union of India and Ors. it was observed that the
Selection Committee does not possess any
inherent power to lay down its own standards in
addition to what is prescribed under the Rules.
Both these decisions were followed in
Durgacharan Misra v. State of Orissa and Ors
and the limitation of the Selection Committee
were pointed out that it had no jurisdiction to
prescribe the minimum marks which a candidate
had to secure at the vivavoce test.
36. It may be pointed out that rule making
function under Article 309 is legislative and not
executive as was laid down by this Court in B.S.
Yadav and Ors. v. State of Haryana and Ors . For
this reason also, the Selection Committee or the
Selection Board cannot be held to have
jurisdiction to lay down any standard or basis for
selection as it would amount to legislating a rule
of selection.”
31. Further in the case of Tata Chemicals Ltd.
Vs. Commissioner of Customs (preventive),
28
8
Jamnagar , it has been laid down that there can
be no estoppel against law. If the law requires
something to be done in a particular manner,
then it must be done in that manner, and if it is
not done in that manner, then it would have no
existence in the eye of the law. Paragraph 18 of
the said judgment is reproduced below:
“18. The Tribunal’s judgment has proceeded on the basis
that even though the samples were drawn contrary to law,
the appellants would be estopped because their
representative was present when the samples were drawn
and they did not object immediately. This is a completely
perverse finding both on fact and law. On fact, it has been
more than amply proved that no representative of the
appellant was, in fact, present at the time the Customs
Inspector took the samples. Shri K.M. Jani who was
allegedly present not only stated that he did not represent
the Clearing Agent of the appellants in that he was not
their employee but also stated that he was not present
when the samples were taken. In fact, therefore, there was
no representative of the appellants when the samples were
taken. In law equally the Tribunal ought to have realized
that there can be no estoppel against law. If the law
requires that something be done in a particular manner, it
must be done in that manner, and if not done in that
manner has no existence in the eye of law at all. The
Customs Authorities are not absolved from following the
8 2015 (11) SCC 628
29
law depending upon the acts of a particular assessee.
Something that is illegal cannot convert itself into
something legal by the act of a third person.”
32. For all the reasons recorded above, the
appeals deserve to be allowed. They are,
accordingly, allowed.
33. The impugned judgment of the Division
Bench dated 29.07.2016 is set aside and the
judgment of the learned Single Judge dated
26.08.2011 is restored.
34. We have been informed that some of the
appellants have retired and a couple of them
have also died, post retirement. Rest of them are
still working. Since the examinations have
already been held in the year 200607, all the
appellants who are found to be eligible for
promotion as per the existing rules and as
directed by the learned Single Judge, would be
30
extended all consequential benefits. Further,
where the appellants have died, the benefit
would be extended to their legal heirs entitled
under law for the same.
35. Pending application(s), if any, is/are
disposed of.
…………..........................J.
[DINESH MAHESHWARI]
………….........................J.
[VIKRAM NATH]
NEW DELHI
JUNE 16, 2022.
31