Supreme Court of India
DHANANJAY MALIK AND ORS.versusSTATE OF UTTARANCHAL AND ORS.
- Citation
- 2008 INSC 304
- Decided
- 5 March 2008
- Disposal
- Disposed off
- Bench
- H K SEMA
Holding
Unsuccessful candidates are estopped from challenging the selection criteria, and the government may supplement silent statutory rules with administrative instructions that do not conflict with the rules.
Summary
The State of Uttaranchal advertised for Physical Education Teachers, specifying B.P.E. or a graduate with a diploma in Physical Education as the required qualification. Unsuccessful candidates challenged the selection criteria, alleging inconsistency with the U.P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983. The Supreme Court held that because the petitioners had participated in the selection process without objection, they were estopped from later challenging the criteria. It further clarified that while administrative instructions cannot amend statutory rules, the government may fill gaps and supplement silent provisions with instructions that are not inconsistent with the existing rules. Consequently, the Court allowed the appeals of the successful candidates, set aside the Division Bench of the High Court, and dismissed the cross‑appeal of the non‑selected candidates.
Issues considered
- Whether the unsuccessful candidates are estopped from challenging the selection criteria after having participated in the process without objection.
- Whether the government can, by administrative instructions, fill gaps and supplement statutory rules when the rules are silent on a particular point.
Legislation cited
- Constitution of Indias. Art. 309
Subjects
Service lawSelection criteriaEstoppelAdministrative instructionsStatutory rulesU.P. Subordinate Educational Service RulesPhysical Education teachersConstitutional law
Judgment
-'·
[2008] 3 S.C.R. 1035
t- DHANANJAY MALIK AND ORS. A
' v.
STATE OF UTTARANCHAL AND ORS.
(Civil Appeal No.1771 of 2008)
MARCH 5, 2008
B
.[H.K. SEMA AND MARKANDEY KATJU, JJ.]
.\'
Service Law - Selection - Selection criteria - Challenged
by unsuccessful candidates - Held: The challenge is not
sustainable - Unsuccessful candidates, having participated c
in the selection process without any demur, were estopped from
challenging the selection criteria - Rule of estoppel -
Applicability of.
Administrative Law - Administrative instructions -
Issuance of, to fill up gaps and supplement Rules - Scope - D
~-
Held: Statutory Rules cannot be amended or superseded by
administrative instructions, but if the rules are silent on any
particular point, the Government can fill up gaps and
supplement Rules and issue instructions not inconsistent with
the Rules already framed - UP Subordinate Educational E
(Trained Graduates Grade) Service Rules, 1983 - Constitution
of India, 1950 - art. 309.
The State Government issued advertisement for
~ selection and appointment of Physical Education
Teachers. The requisite qualification indica~ed in the F
advertisement was B.P.E. or Graduate with Diploma in
Physical Education. The unsuccessful candidates filed
writ petitions challenging the selection criteria, viz. the
requisite educational qualification indicated. They
contended that the same were not in accordance with the G
U.P. Subordinate Educational (Trained Graduates Grade)
Service Rules, 1983 which prescribed the requisite
''( educational qualifications for the post of Physical
Education teachers. The aforesaid Rule had been clarified
1035 H
1036 SUPREME COURT REPORTS [2008] 3 S.C.R.
A by the Government of India to the effect that B.P.E degree t
holders should be treated at par with those who hold B.A./ •
B.Sc., B.Com degree plus a diploma in physical education
and should not be required to possess an additional B.A.,
B.Sc/B.Com. degree for purposes of employment as
B Directors of physical education or on other similar posts.
The aforesaid position has been further clarified by the
Government in its counter affidavit that qualification of ~·
B.P.E. includes the graduation as well as diploma of
physical education. The writ petitions filed by the
unsuccessful candidates were dismissed by the Single
c Judge
,, of High Court. Appeal thereagainst was allowed
by the Division Bench.
In appeals to this Court the questions which arose
for consideration were 1) Whether the unsuccessful
D candidates were estopped from challenging the selection
process and 2) Whether the Government can, by way of ..
administrative instructions, fill up the gaps and
supplement the rules and issue instructions not
inconsistent with the rules already framed, if rules are
E silent on any particular point.
Allowing the appeals filed by successful candidates
and dismissing the cross appeal filed by non-selected
candidates, the Court
F HELD:1. The writ petitioners before the High Court
participated in the process of selection knowing fully well
that the educational qualification was clearly indicated in
the advertisement itself as B.P.E. or graduate with diploma
in physical education. Having unsuccessfully participated
in the process of selection without any demur they are
G
estopped from challenging the selection criterion inter alia
that the advertisement and selection with regard to
requisite educational qualifications were contrary to the
Rules. If they think that the advertisement and selection
•'
proce$s were not in accordanee with the Rules they could
H , I
DHANANJAY MALIK AND ORS. v. STATE OF 1037
UTTARANCHAL AND ORS. [H.K. SEMA, J.]
~-- have challenged the advertisement and selection process A
' without participating in the selection process. This has
not been done. The Division Bench of the High Court could
have dismissed the appeal on this score alone as has
been done by the Single Judge. [Paras 7, 8, 10) [1038-G;
1039-A, B, E, F; 1040-A] B
Madan Lal v. State of J & K (1995) 3 SCC 486 and
" Marripati Nagaraja v. Thf? Government of Andhra Pradesh
(2007) 11 SCR 506 SCR - relied on.
2. The Government cannot amend or supersede c
statutory Rules by administrative instructions, but if the
rules are silent on any particular point, the Government
can fill up the gaps and supplement the rules and issue
instructions not inconsistent with the rules already
framed. [Para 13) [1040-F, G)
.,' . Sant Ram Sharma v. State of Rajasthan AIR (1967) SC
D
1910 and Union of India v. K.P Joseph (1973) 1 SCC 194 -
relied on.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1771
of 2008. E
From the Judgment and final order dated 16/12/2005 of
· the High Court of Uttaranchal at Nainital in S.A. No. 18/2004.
• WITH
F
t
Civil Appeal Nos. 1772 and 1773 of 2008.
Naresh Kaushik, Satish Dayanandan, Parag Goyal, Lalita
Kaushik, Mohd. Jamal Nasir and Sunita Sharma for the
Appellants.
G
Rachana Srivastava, A.A.G., 8.8. Sawhney, Indra
Sawhney and Jatinder Kumar Bhatia for the Respondents.
'~
The Judgment of the Court was delivered by ·
H.K. SEMA, J. 1. Leave granted.
H
1038 SUPREME COURT REPORTS [2008] 3 S.C.R.
A 2. These appeals are directed against the judgment and t-
order dated 16.12.2005 passed by the Division Bench of the •
High Court of Uttaranchal at Nainital in Special Appeal No.18 of
2004.
3. Special Leave Petition (Civil) Nos.1466 and 2743 of
B 2006 have been filed by the selected candidates. The High Court
by the impugned order set aside the entire selection and
appointments of Assistant Teachers (Physical Education) in
Garhwal Mandal. According to the High Court, the selection and
appointments were made in violation of the Rules. By an interim
c order dated 27.1.2006 this Court stayed the operation of the
order of the High Court and, therefore, they are still holding the
posts, for which they have been selected.
4. An advertisement was issued on 24.6.2002 for Garhwal
Region for the selection and appointment of the Physical
D ~
Education Teachers (LT.Grade). The requisite qualification
indicated in the advertisement is B.P.E. or Graduate with '"
Diploma in Physical Education. The unsuccessful candidates
in the interview challenged the selected candidates on various
grounds. One of the grounds was that the advertisement and
E selection were not based in accordance with the Rules called
U.P. Subordinate Educational (Trained Graduates Grade)
Service Rules, 1983 (in short the Rules). We will examine the
Rules a little later. The unsuccessful writ petitions were dismissed
by the Single Judge. On appeal by the unsuccessful candidates, ..
F the order of the Single Judge was reversed and the appeals
were allowed. Hence, these appeals by special leave.
5. We have heard the parties.
6. Before we proceed further we may point out at this stage
G that the writ petitions were rightly dismissed by the Single Judge
and the Division Bench of the High Court fell in error in
entertaining the appeals.
7. It is not disputed that the writ petitioners-respondents •'
herein participated in the process of selection knowing fully well
H
DHANANJAY MALIK AND ORS. v. STATE OF 1039
UTTARANCHAL AND ORS. [H.K. SEMA, J.]
t-· that the educational qualification was clearly indicated in the A
' advertisement itself as B.P.E. or graduate with diploma in
physical education. Having unsuccessfully participated in the
process of selection without any demur they are estopped from
challenging the selection criterion inter alia that the
advertisement and selection with regard to requisite educational B
qualifications were contrary to the Rules.
8. In Madan Lal vs. State of J & K, (1995) 3 SCC 486,
this Court pointed out that when th~ petitioners appeared at the
oral interview conducted by the Members concerned of the
Commission who interviewed the petitioners as well as the C
contesting respondents concerned, the petitioners took a
chance to get themselves selected at the said oral interview.
Therefore, only because they did not find themselves to have
emerged successful as a result of their combined performance
both at written test and oral interview, they have filed writ D
1 petitions. This Court further pointed out 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 E
constituted. In the present case, as al'ready pointed out, thewrit
petitioners-respondents herein participated in the selection
process without any demur; they are estopped from complaining
that the selection process was not in accordance with the Rules.
~
If they think that the advertisement and selection process were F
,.. not in accordance with the Rules they could have challenged
· the advertisement and selection process without participating
in the selection process. This has not been done.
9. In a recent judgment in the case of Marripati Nagaraja
vs. The Government of Andhra Pradesh, (2007) 11 SCR G
.506 at p.516 SCR this Cou'rt has succinctly held that the
appellants had appeared at the examination without any demur.
They did not question the validity of fixing the said date before
. the appropriate authority. They are, therefore, estopped and
precluded from questioning the selection process. H
1040 SUPREME COURT REPORTS [2008] 3 S.C.R.
A 10. We are of the view that the Division Bench of the High
Court could have dismissed the appeal on this score alone as "t..
has been done by the learned Single Judge.
11. The next question that arises for consideration is as to
whether the Government can, by way of administrative
B instructions, fill up the gaps and supplement the rules and issue
instructions not inconsistent with the rules already framed, if rules +'
are silent on any particular point?
12. The .1983 Rules prescribe the requisite educational
c qualifications for the post of Assistant Teacher-physical
education as under:-
"Graduation degree in Physical Education or Diploma in
the Physical Education from any recognised Institution."
D The aforesaid Rule has been clarified by the Government
of India, Ministry of Education, on 26.11.1965 to the effect that •
B.P.E degree holders should be treated at par with those who ,.
hold B.A./B.Sc., B.Com degree plus a diploma in physical
education and should not be required to possess an additional
B.A.,B.Sc/B.Com. degree for purposes of employment as
E Directors of physical education or on other similar posts. The
aforesaid position has been further clarified by the Government
in paragraph 12 of its counter affidavit that qualification of B.P.E.
includes the graduation as well as diploma of physical education.
F 13. A Constitution Bench of this Court in the case of Sant '
Ram Sharma vs. State of Rajasthan, AIR 1967 SC 1910,
has pointed out at p.1914 SC that the Government cannot amend •
or supersede statutory Rules by administrative instructions, but
if the rules are silent on any particular point Government can fill
G up the gaps and supplement the rules and issue instructions
not inconsistent with the rules already framed.
14. The aforesaid ruling has been reiterated in paragraph
9 of the judgment by a three Judge Bench of this Court in the :
case of Union of India vs. K.P. Joseph, (1973) 1 SCC 194,
H as under:
DHANANJAY MALIK AND ORS. v. STATE OF 1041
UTTARANCHAL AND ORS. [H.K. SEMA, J.]
"\"
"Generally speaking, an administrative Order confers no A
• justiciable right, but this rule, like all other general rules, is
subject to exceptions. This Court has held in Sant Ram
Sharma v. State of Rajasthan and Another, AIR 1967
SC 1910, that although Government cannot supersede
statutory rules by administrative instructions, yet, if the rules B
framed under Article 309 of the Constitution are silent on
-,
" any particular point, the Government can fill up gaps and
supplement the rules and issue instructions not inconsistent
With the rules already framed and these instructions will
govern the conditions of service." c
15. For the reasons aforestated, Civil Appeals arising out
of Special Leave Petition (Civil) Nos. 1466 and 2743 of 2006
filed by the successful candidates are allowed. The impugned
judgment and order of the Division Bench of the High Court is
set aside. No costs. D
'
~~
CIVIL APPEAL ARISING OUT OF S.L.P ( C ) No.7989
of 2006
16. This appeal filed by the non-selected candidates is
dismissed. E
B.B.B. Civil Appeal Nos. 1771, 1772 of 2008 allowed.
Civil Appeal No. 1773 of 2008 dismissed.
~
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Service law"Sign in to search