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TMI Blog2016 (10) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... The Appellants participated in the selection process. Moreover, two other considerations weigh in balance. The High Court noted in the impugned judgment that the interpretation of Rule 6 was not free from vagueness. There was in other words no glaring or patent illegality in the process adopted by the High Court. There was an element of vagueness about whether Rule 6 which dealt with promotion merely incorporated the requirement of an examination provided in Rule 5 for direct recruitment to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the Appellants by the 90:10 allocation. The Division Bench cannot held to be in error in coming to the conclusion that it was not open to the Appellants after participating in the selection process to question the result, once they were declared to be unsuccessful - appeal disposed off. - Civil Appeal No. 9092 of 2012 - - - Dated:- 21-10-2016 - T.S. Thakur, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ. JUDGMENT Dr. D.Y. Chandrachud, J. 1. This appeal arises from a judgment and order of a Division Bench of the High Court of Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Results were declared on 31 December 2004 and the ninth to fourteenth Respondents were appointed on Class III posts. All the Appellants participated in the process of selection. 4. The two Appellants and four other unsuccessful candidates then filed a Writ Petition before the High Court in order to challenge the General order dated 8 October 2004 and the order of appointment dated 31 December 2004. The primary ground was that the appointment process was vitiated, since under the relevant rules, the written test was required to carry eighty five marks and the interview, fifteen marks. Counter affidavits were filed in response to the Writ Petition by the Registrar of the Civil Court at Muzaffarpur, the Registrar General of the High Court and by the selected candidates. The High Court on the administrative side defended its action by placing reliance on its General letter bearing No. 1 of 1995 (Civil) dated 22 November 1995 which stipulated a written examination comprising of ninety marks (with qualifying marks of forty five) followed by an interview carrying ten marks for promotion from Class IV to Class III posts. The High Court submitted in its counter affidavit that this Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were excluded. 7. The Division Bench of the High Court by a judgment and order dated 16 December 2011 allowed the Letters Patent Appeal filed by the ninth to fourteenth Respondents and, while setting aside the judgment and order of the learned Single Judge, restored the original order of appointment dated 31 December 2004. The Division Bench agreed with the construction placed by the learned Single Judge on the Rules of 2001. However, while interfering with the judgment of the learned Single Judge, the Division Bench took the view that the Appellants had in pursuance of the notification issued by the District and Sessions Judge participated in the selection process without any protest. Having failed to raise any objection to the selection process, it was held that the Appellants were estopped from turning around and challenging the selection once they were declared unsuccessful. In taking this view, the Division Bench has relied upon the judgments of this Court in: (i) Marripati Nagaraja v. The Government of Andhra Pradesh (2007) 11 SCC 522; (ii) Dhananjay Malik v. State of Uttaranchal (2008) 3 PLJR (SC) 271; and (iii) Amlan Jyoti Borrooah v. State of Assam (2009) 3 SCC 227. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employees in Rule 5(iv) and for appointment by promotion from Class IV to Class III posts in Rule 6. Rule 6(iii) stipulates that for promotion in terms of the preceding rule, the appointment committee shall hold a separate examination of the eligible candidates and call for interview only such candidates who obtain the qualifying marks in the written examination. The learned Single Judge held that in consequence, Rule 6 incorporates the requirement which is provided in Rule 5 of a written examination consisting of eighty five marks, an interview of fifteen marks and qualifying marks of forty five in the written test. The Division Bench on adverting to the provisions of Rules 5 and 6 of the Rules, 2001 noticed that there was some scope for interpretation on account of vagueness of the rules. However, on the balance, the Division Bench was not inclined to differ with the view of the learned Single Judge on the interpretation of the rules. 10. The basic issue that was addressed by the Division Bench was that the Appellants having participated in the fresh round of selection could not be permitted to assail the process once they were declared unsuccessful. On this aspect, a brief r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to question the same... (See also Munindra Kumar v. Rajiv Govil (1991) 3 SCC 368 and Rashmi Mishra v. M.P. Public Service Commission (2006) 12 SCC 724). The same view was reiterated in Amlan Jyoti Borroah (supra) where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful. In Manish Kumar Shah v. State of Bihar (2010) 12 SCC 576, the same principle was reiterated in the following observations: 16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the Petitioner is not entitled to challenge the criteria or process of selection. Surely, if the Petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court Under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of almost four months between the interview and declaration of result. However, the Appellants did not challenge it at that time. This, it appears that only when the Appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted. This principle has been reiterated in a recent judgment in Madras Institute of Development v. S.K. Shiva Subaramanyam (2016) 1 SCC 454. 13. In the present case, regard must be had to the fact that the Appellants were clearly on notice, when the fresh selection process took place that written examination would carry ninety marks and the interview, ten marks. The Appellants participated in the selection process. Moreover, two other considerations weigh in balance. The High Court noted in the impugned judgment that the interpretation of Rule 6 was not free from vagueness. There was in other words no glaring or patent illegality in the process adopted by the High Court. There was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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