Supreme Court of India
RAMESH CHANDRA SHAH AND OTHERSversusANIL JOSHI AND OTHERS
- Citation
- 2013 INSC 210
- Decided
- 3 April 2013
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
A candidate who participates in a recruitment process with full knowledge of the governing rules waives the right to later challenge the advertisement or selection methodology.
Summary
The Uttarakhand Board of Technical Education advertised vacancies for Physiotherapist posts and conducted a written test under the 2008 General Rules for Group C recruitment. Successful candidates were appointed, while the unsuccessful private respondents filed a writ petition challenging the advertisement and selection process, alleging that the Special Rules of 1998 should have governed the recruitment. The Single Judge quashed the selection, but the High Court held that the respondents, having participated in the test with full knowledge of the applicable General Rules, had waived their right to challenge the process, though it still directed a fresh merit list with added academic marks. On appeal, the Supreme Court affirmed the doctrine of waiver, stating that a candidate who consciously takes part in a selection cannot later contest the method or outcome, and held that the lower courts erred in entertaining the grievance. Consequently, the appeals were allowed, the writ petition was dismissed, and the parties were each to bear their own costs.
Issues considered
- The applicability of the Special Rules versus the General Rules to the recruitment of Physiotherapists.
- Whether the private respondents, having appeared for the written test, waived their right to challenge the advertisement and selection process under Article 226.
- The effect of the non obstante clause in Rule 2 of the General Rules on the validity of the selection.
Subjects
selection processwaiver doctrinepublic service recruitmentArticle 226non obstante clausegroup C postsdirect recruitmentUttarakhand Board of Technical Education
Judgment
[2013] 5 S.C,R. 687
RAMESH CHANDRA SHAH AND OTHERS A
v.
ANIL JOSHI AND OTHERS
(Civil Appeal Nos. 2802-2804 of 2013)
APRIL 3, 2013
B
[G.S. SINGHVI AND KURIAN JOSEPH, JJ.]
Service Law - Selection - Procedure of - Challenge to
- Waiver of right to objection ..:.. Held: Person who consciously
takes part in the process of selection cannot, thereafter, tum C
around and question the method of selection and its outcome
-:- On facts, the private respondents having taken part in the
. process of selection with full knowledge that recruitment was
being made under the General Rules, they had waived their
right to question the advertisement or the methodology D
adopted for making selection - Having appeared in the written
· test and taken a chance to be declared successful, they will
be deemed to have waived their right to challenge the
. advertisement and the procedure of selection - The conduct
of the private respondents clearly disentitles them from E
seeking relief under Art.226 of the Constitution - High Court
committed grave error by entertaining the grievance made by
them - Uttar Pradesh Medical Health and Family Welfare
Department Physiotherapist and Occupational Therapist
Service Rules, 1998 (Special Rules) - Uttarakhand F
· Procedure for Direct Recruitment for Group •c" Posts (Outside
the purview of the Uttarakhand Public Service Commission)
Rules, 2008 (General Rules) - Uttar Pradesh Procedure for
Direct Recruitment for Group 'C' Posts (Outside the purview
of the Uttar Pradesh Public Service Commission) Rules, G
· 1998 - Doctrines -Doctrine of waiver.
In response to ~n advertisement published in a
newspaper, the appellants and the private respondents
submitted applications for the posts of Physiotherapist
687 H
688 SUPREME COURT REPORTS [2013] 5 S.C.R.
A and appeared in the written test. The appellants were
declared successful and became entitled to be appointed
against the advertised posts. The private respondents,
who failed to clear the test filed Writ Petition for quashing
the advertisement and the process of selection. They
B pleaded that the advertisement and the test conducted
by the Uttarakhand Board of Technical Education were
ultra vires the provisions of the Uttar Pradesh Medical
Health and Family Welfare Department Physiotherapist
and Occupational Therapist Service Rules, 1998 ['the
c Special Rules'].
The Single Judge allowed the writ petition and
quashed the selection with a direction that the available
posts be advertised afresh. On appeal, the Division
Bench of the High Court held that after having taken a
D 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
E 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
F examination are unfit.
In the instant appeal, the appellants contended that
after having accepted their contention on the issue of
locus of the private respondents to challenge the
process of selection, the Division Bench of the High
G Court was not justified in directing the Board to prepare
fresh select list by adding marks for intermediate and
degree/diploma qualifications; and that the Single Judge
and the Division Bench committed grave error by
refusing to non-suit the private respondents despite the
H
RAMESH CHANDRA SHAH v. ANIL JOSHI 689
fact that from the stage of submission of applications they A.
knew that the selection was being held in accordance
with the Uttarakhand Procedure for Direct Recruitment for
Group "C" Posts (Outside the purview of the Uttarakhand
Public Service Commission) Rules, 2008 (General Rules).
B
Allowing the appeals, the Court
HELD:1.1. 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 C
Office Memorandum dated 3.8.2010, the Uttarakhand
Board of Technical Education has been designated as the
recruiting agency and the selection will be made In
accordance with the provisions of the Uttarakhand
Procedure for Direct Recruitment for Group "C" Posts D
(Outside the purview of the Uttarakhand Public Service
Commission) Rules, 2008 [General Rules]. They appeared
in the written test knowing that they will have to pass the
examination enumerated In the advertisement If they had
cleared the test, the private ·respondents would not have E
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 F
by the Board on the basis of the advertisement issued
in November 2011. This conduct of the private
respondents clearly disentitles them frqm seeking relief
under Article 226 of the Constitution. To put it differently,
by having appeared in the written test !Ind taken a chance G
to be declared successful, the private respondents will
be deemed to have waived their right to challenge the
advertisement and the procedure of .selection. It is settled
law that a person who consciously takes part in the
process of selection cannot, thereafter, turn around and H
690 SUPREME COURT REPORTS [2013] 5 S.C.R.
A question the method of selection and its outcome. [Paras
17, 18] [702-D-H; 703-A-B]
1.2. Having taken part in the process of selection
with full knowledge that the recruitment was being made
8 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 Single Judge and the Division Bench of the High
Court committed grave error by entertaining the
C grievance made by the respondents. [Para 24] [706-F-G]
Manak Lal v. Dr. Prem Chand AIR 1957· SC 425: 1957
SCR 575; Dr. G. Sama v. University of Lucknow (1976) 3 SCC
585: 1977 (1) SCR 64; Om Prakash Shukla v. Akhilesh
Kumar Shukla· (1986) Supp. SCC 285: 1986 SCR 855;
D Madan Lal v. State of J & K (1995) 3 SCC 486: 1995 (1) SCR
908; Manish Kumar Shahi v. State of Bihar (2010) 12 SCC
576 and Vijendra Kumar Verma v. Public Service
Commission, Uttarakhand and others (2011) 1 SCC 150:
2010 (12 ) SCR 944 - relied on.
E
Case Law Reference:
1957 SCR 575 relied on Para 19
1977 (1) SCR 64 relied on Para 20
F 1986 SCR 855 relied on Para 21
1995 (1) SCR 908 relied on Para 21
c2010) 12 sec 576 relied on Para 22
2010 (12) SCR 944 relied on Para 23
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2802-2804 of 2013.
From the Judgment and Order dated 02.05.2012 of the
H High Court ofUttarakhand at Naintial in W.P. No.1625 of2011,
RAMESH CHANDRA SHAH v. ANIL JOSHI 691
SA No. 77 of 2012 dated 13.07.2012 in SA No. 77 of 2012, A
RA No. 520 of 2012 dated 30.07.2012 in SA No. 77 of 2012,
RA No. 599 of 2012.
Pallav Shishodia, Chandra Shekhar Srivastava, Ravindra
Kumar, Rachana Srivastava, Rahul Verma, B.K. Pal, Ravindra
8
S. Garia for the appearing parties.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
. 2. In response to an advertisement issued by the C
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 D.
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.
3. The private respondents, who failed to clear the test filed
Civil Misc. Writ Petition No.1625/2011 for quashing the E
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 F
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 G
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 H
692 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B 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 Rules regulating the recruitment
of Physiotherapists will prevail and the Board was not entitled
C 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.
D 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
E 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
F 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
G 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
H complete the selection of Physiotherapists by adding to
RAMESH CHANDRA SHAH v. ANIL JOSHI 693
[G.S. SINGHVI, J.]
the marks obtained .by the fit examinees in the written A
examination, 30% marks for intermediate examination and
70% marks for diploma I degree examination. Let the said
exercise be completed as quickly as possible, but not later
than two months from the date of service of a copy of this
order upon the Board." B
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.
c
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 D
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 E
non suit the private respondents desP.,!teJb.aJact 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 F
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.
9. Ms. Rachana Srivastava, Standing Counsel for the State G
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.
H
694 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B the written test.
11. We have considered the respective arguments and
scrutinized the records.
12. The State of Uttarakhand (earlier known as
C '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
D 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
E of Uttar Pradesh were adopted by the Government of the new
State by Adaptation and Modification Order 2002. In 2008, the
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
F 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-
G
(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
H equivalent thereto.
RAMESH CHANDRA SHAH v. ANIL JOSHI 695
[G.S. SJNGHVI, J.]
(ii) Must possess as degree or diploma in physiotherapy A
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 B
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.
c
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, D
shall, other things being equal be given preference
in the matter of direct recruitment."
By Rule 15 of the Special Rules, which is reproduced below, it
was laid down that direct recruitment to the various categories E
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 F
.(outside the purview of the Uttar Pradesh Public Service
Commission) Rule, 1998, as amended from time to time."
13. By Notification dated 4.a.2008, the Special Rules were
amended and the existing Rule 15 was substituted by the G
following:
"15(1) For direct recruitment the appointing Authority shall
noting the format of application form and vacancies
together in the following manner: ·
H
•
696 SUPREME COURT REPORTS [2013] 5 S.C.R.
A (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.
B
(iii) By notifying vacancies to the Employment Exchange.
(2) For the purpose of direct recruitment there shall be
constituted a selection committee compressing the
c following-
(i) Appointing Authority Chairman
(ii) If the Appointing Authority does not belong to the
Scheduled castes or scheduled tribes, an officer
D belonging to the Scheduled castes or Scheduled
Tribes, 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
E officer belonging to other than Scheduled Castes
or Scheduled Tribes, shall be nominated by the
Director GeneralMember
(iii) An officer belonging to the minority community, riot
below the rank of joint Director to be nominated by
F
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
G
(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
H
RAMESH CHANDRA SHAH v. ANIL JOSHI 697
[G.S. SINGHVI, J.]
accordance with rule 6, scrutinize the applications. A
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 concerned subject. 8
While evaluating the questions paper, one marks
shall be awarded, for each correct answer· and 1A
mark shall be deducted for each incorrect answer
be deducted for each incorrect answer as negative
marking
c
(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 D
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 E
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 F
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 G
in the written test and less than 30 percent marks
in 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
H.
698 SUPREME COURT R,EPORTS [2013] 5 S.C.R.
A 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.
B
(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
c 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
D shall 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."
E
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:
F "Overriding effect 2. These rules shall have effect
notwithstanding anything to
the contrary contained in any
other Rules or orders.•
G 15. At this stage, it will also be useful to notice the contents
of Office Memorandum dated 3.8.201 O and the opening
paragraph of the advertisement issued by the Board which, as
mentioned above, was published in the newspaper dated
5.5.2011:
H
RAMESH CHANDRA SHAH v. ANIL JOSHI 699
[G.S. SINGHVI, J.]
Office Memorandum A
"STATE OF UTTARAKHAND
PERSONNEL DEPARTMENT-2
N0.1083/XXXX(2}/ 2010 DATED 03rd AUGUST, 2010
OFFICE MEMORANDUM B
As per Provisions prescribed, for selection I
recruitment on parties of Group 'C falling outside the
purview of Public Service Commission, selection has to
be made by concerned Appointing Authority. C
As separate recruitment/selections, on vacant posts
by every Appointing Authority would require more time &
labour.
Hence, after proper consideration Hon'ble Governor D
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:
E
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 F
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 G
Uttrakhand Technical Education Board.
3. Technical Education Board on receiving such
requisition from Appointing Authority should
H
700 SUPREME COURT REPORTS [2013) 5 S.C.R.
A advertise for recruitment under prescribe Rules,
within one month.
4. Technical Education Board, after publication of
advertisement, shall start the selection proceedings,
B 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 possible & forward its
c recommendation to the Appointing Authority.
(Dileep Kr. Kotia)
Principal Secretary"
Advertisement
D
."UTTARAKHAND TECHNICAL EDUCATION BOARD
ROORKEE <HARIDWARl-247667
ADVERTISEMENT NO STATE GROUP 'C' COMBINED
E RECRUITMENT EXAMINATION 2011
DATED 4 MAY 2011
DATE OF ADVERTISEMENT- MAY 04, 2011
F LAST DATE OF ACCEPTANCE OF APPLICATION
FORMS- JUNE 04, 2011
FOR DETAILED ADVERTISEMENT PLEASE VISIT
BOARD'S WEBSITE AT
G
Vide Office Memo No-1063/XXX(2) 2010 dated
03.08.201 O of Personnel Department-2, Uttarakhand
State, Uttarakhand Technical Education Board, Roorkee
has been chosen as recruiting agency for vacant posts in
H
RAMESH CHANDRA SHAH v. ANIL JOSHI 701
[G.S. SINGHVI, J.]
various departments of government which are outside the A
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 B
Rules, reads thus:
"11. SELECTION EXAMINATION AND SYLLABUS OF
QUESTION PAPER:- For selection, there shall be an
Objective type written examination Of 100 marks c
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 o
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.
E
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 F
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 G
website uk.gov.in and www.ubter.in
lil 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 H
702 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B
not more than 25%)
Final select list will be displayed on the Board's web site
uk.gov.in and www.ubter.in
c 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."
D 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
E 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
F 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
G 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
H
RAMESH CHANDRA SHAH v. ANIL JOSHI 703
[G.S. SINGHVI, J.]
to have waived their right to challenge the advertisement and A
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. 8
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 C
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 D
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 E
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 Chhang;ini and yefdid not adopt
that course, it may well be that he deliberately took a
chance to obtain a report in his favou.r from the Tribunal F
and when he came to know that the report. had gone ·
against him .he thought better of his rights arid raised this
point before the High Court for the first time.
From the record it is clear that the appellant never raised G
this point before the Tribuilarand 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 theTribunal's report was that Shri
Chhangani had pecuniary and personal interest in the H
704 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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 learned
B 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
c 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
D 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. n
20. In Dr. G. Sama v. UniversityofLucknow(1976) 3 SCC
E 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
F (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 sec 486 in the following words:
G
"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
H chance to get themselves selected at the said oral _
RAMESH CHANDRA SHAH v. ANIL JOSHI 705
[G.S. SINGHVI, J.)
interview. Only because they did not find themselves to A
have emerged successful as a result of their combined
performance both at written te~t 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 B
not palatable to him, he cannot tum 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 c
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." 0
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 opserved:
· "We also agree with the High Court that after having taken E
· 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 F
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 G
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
H
706 SUPREME COURT REPORTS [2013) 5 S.C.R.
A and others (2011) 1 sec 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 the knowledge of the candidates with
regard to basic knowledge of computer operation would
B 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
c 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
D 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
E protest at any stage and now cannot tum 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
F 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
G 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
H non obstante clause contained in Rule 2 of the General Rules,
RAMESH CHANDRA Sf'.IAH v. ANIL JOSHI 707
[G.S. SINGHVI, ~-]
the Special Rules would govern recruitment to the post of A
Physiotherapist. However, we do not consider it necessary to
express any 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 8
~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.Jo bear their own costs.
B.B.B. Appeals allowed.
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