Krishna Rai (Dead) vs Banaras Hindu University Through … on 16 June, 2022


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Supreme Court of India

Krishna Rai (Dead) vs Banaras Hindu University Through … on 16 June, 2022

Author: Vikram Nath

Bench: A.S. Bopanna, Vikram Nath

                                                           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

working in the Banaras Hindu University1,

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

No.223 dated 2/3rd 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.
Chandrashekharan and others2.

(2) Utkal University and others Vs. Dr. N.C.
Sarangi and others3.

(3) Chandra Prakash Tiwari Vs. Shakuntala4 .
(4) K.A. Nagmani Vs. Indian Airlines5.
(5) Madan Lal and others Vs. State of
Jammu and Kashmir and others6.

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 Utkal University (supra), the

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

(supra), the unsuccessful candidate did not find

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
Vs. State of Orissa and others7, 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
Jamnagar8, 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.

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