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TMI Blog2022 (6) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Class-III (Junior Clerk Grade) by way of promotion, the University issued a Notification/Advertisement dated 17.12.2005 inviting applications from permanent Class-IV employees for promotion as Junior Clerk in the Pay-Scale of Rs. 3050-4590. The eligibility prescribed in the aforesaid Notification reads as under: "Eligibility: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 break-up: 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 counter-affidavit filed by the BHU as also by the Respondent Nos. 3 to 16, the eligibility 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Group-D in-service employees and it further provided that the seniority list would be prepared after passing the departmental test 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 Group-D Class-IV 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect 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 appeals, set-aside 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. v. State of Orissa and Ors. 1995 (6) SCC 1, 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to 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 viva-voce 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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