KRISHNA RAI (DEAD) THROUGH LRS & ORS versus BANARAS HINDU UNIVERSITY THROUGH REGISTRAR & ORS. on 16 June 2022

SUPREME COURT REPORTS

[2022] 7 S.C.R.

AKRISHNA RAI (DEAD) THROUGH LRs & ORS.

v.

BANARAS HINDU UNIVERSITY THROUGHREGISTRAR & ORS.

(Civil Appeal Nos. 4578-4580 of 2022)JUNE 16, 2022

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[DINESH MAHESHWARI AND VIKRAM NATH, JJ.]

Service law: Principle of estoppel and acquiescence whetherwould prevail over statutory service rules prescribing procedureCfor promotion of Class-IV employees to Class-II working in theCentral University – Single Judge held that the statutory rules wouldprevail and must be strictly adhered to – However, Division Benchset aside the judgment of single judge and held that the appellantshaving appeared in the examination process as also the interviewDwithout any protest upon being unsuccessful could not havechallenged the selection process – On appeal, held: As per theManual, all Class-IV employees, who have put in five years’ serviceand 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/EHindi for a minimum speed of 30 words per minute – This type testwas not mandatorily required to be qualified and even those eligiblecandidates, who could not qualify the type test, but were otherwiseeligible having passed in the departmental test, would be allowedtwo years’ time after joining to qualify the typing test – The only testFrequired for eligible candidates was to pass in the departmentaltest i.e. the test of simple English, Hindi and Arithmetic – However,Board of Examiners on their own changed the criteria and made itpurely merit based by introducing an interview – There is neitherany provision nor any other indication in the manual duly approvedby the Executive Council for such merit list – Hence, Division benchGfell in error in applying the principle of estoppel that the appellantshaving appeared in the interview and being unsuccessful proceededto challenge the same – Appellants were class-IV employees workingfrom 1977 onwards and expecting from them to have raised theobjection at the stage of interview was too far-fetched andunreasonable – It is settled principle that principle of estoppel cannotH

override the law – Therefore, the manual duly approved by theExecutive Council will prevail over any such principle of estoppelor acquiescence.

Allowing the appeals, the Court

HELD: 1. As per para 6.4 of the Manual duly approved bythe Executive Council’s Resolution No.223 dated 2/3rd ofNovember, 1980, all Class-IV employees, who have put in fiveyears’ service and who have passed matriculation examinationor equivalent, would be eligible for promotion to the post of JuniorClerk Grade. Such eligible candidates would be tested in a typingtest in English/Hindi for a minimum speed of 30 words per minute.The note appended to such Clause of typing test mentions that ifan employee does not pass the typing test and is otherwise eligiblefor promotion, he be promoted subject to the condition that hepasses the typing test within two years from the date of hispromotion failing which, he would be reverted. The note furtherprovided that for such employees the typing test would be heldtwice a year. Para 6.4(ii)(b) provided that two papers of simpleEnglish, Hindi and Arithmetic of one hour duration would be held.[Para 14][1112-B-D]

2. The net effect of the above eligibility and procedureprescribed for promotion of Group D Class IV employees to thecadre of Junior Clerk would be that (1) a type test would be heldwith a minimum speed of 30 words per minute in Hindi/English.This type test was not mandatorily required to be qualified andeven those eligible candidates, who could not qualify the typetest, but were otherwise eligible having passed in thedepartmental test, would be allowed two years’ time after joiningto qualify the typing test and for such candidates, typing test wouldbe held twice a year. The only test required for eligible candidateswas to pass in the departmental test i.e. the test of simple English,Hindi and Arithmetic. [Paras 16 and 17][1112-F-G]

3. In the present case, the Board of Examiners comprisingof large number of Members changed the entire procedure andthey established a completely new procedure. They awarded 20marks for the type test treating it to be compulsory, 60 marks forthe written departmental test of simple English, Hindi and A

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AArithmetic with 20 marks for each subject and further introducedan interview of 20 marks. Thus, the merit list was to be preparedon the total 100 marks as distributed above. There is neither anyprovision nor any other indication in the Manual duly approvedby the Executive Council for preparing such a merit list basedupon the marks awarded under different heads. [Paras 18 andB19][1113-C-D]

4. The Division Bench ought to have considered that theappellants were Class-IV employees working from 1977 onwardsand expecting from them to have raised serious objection orprotest at the stage of interview and understanding the principlesCof changing the Rules of the game, was too farfetched,unreasonable and unwarranted. It is settled principle that principleof estoppel cannot override the law. The manual duly approvedby the Executive Council will prevail over any such principle ofestoppel or acquiescence. [Paras 22 and 23][1114-C-E]

DDr. Krushna Chandra Sahu and others v. State of Orissaand others (1995) 6 SCC 1: [1995] 3 Suppl. SCR 419; Tata Chemicals Ltd. v. Commissioner of Customs(preventive), Jamnagar (2015) 11 SCC 628 : [2015] 7 SCR 132 – relied on.

EUnion of India and another v. N. Chandrashekharanand others JT 1998(1) SC 295 : [1998] 1 SCR 419; Utkal University and others v. Dr. N.C. Sarangiand others JT 1999 (1) SC 101 : [ 1999] 1 SCR 19;Chandra Prakash Tiwari v. Shakuntala (2002) 6 SCCF127 : [2002] 3 SCR 948; K.A. Nagmani v. IndianAirlines 2009 (5) SCC 515 : [2009] 5 SCR 89; MadanLal and others v. State of Jammu and Kashmir and others1995(3) SCC 486 : [1995] 1 SCR 908 – heldinapplicable.

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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.4578-4580 of 2022.

From the Judgment and Order dated 29.07.2016 of the High Courtof Judicature at Allahabad in Special Appeal Nos.24, 09 and 25 of 2012.

Deepak Jain, Ms. Jaspreet Aulakh, K. B. Pradeep, Tanpreet Gulati,Georgey V. Mathew, Vaibhav Manu Srivastava, Advs. for the Appellants.

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S. R. Singh, Sr. Adv., T. V. George, Shish Pal Laler, GhanshyamSingh, Hitesh Kumar, Vedant Pardhan, Rajnish Kumar Jha, Advs. forthe Respondents.

The Judgment of the Court was delivered by D

VIKRAM NATH, J.

1. Leave granted.

2. I.A.D.No.133982 of 2021 is allowed.

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3. In these three Civil Appeals, this Court has been called upon todecide whether principle of estoppel and acquiescence will prevail overstatutory service rules prescribing the procedure for promotion of Class-IV employees to Class-III working in the Banaras Hindu University[1],Varanasi, a Central University. The learned Single Judge was of theview that the statutory rules would prevail and must be strictly adheredto, whereas, the Division Bench, although, agreeing with the reasoningof the learned Single Judge that the procedure prescribed under therules was violated, still proceeded to set aside the judgment of the learnedSingle Judge applying the principle of estoppel and acquiescence overand above the eligibility conditions having statutory force laid down bythe statutory rules.

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4. The learned Single Judge had allowed the writ petition filed bythe appellants and after setting aside the promotion of respondent Nos.3to 16, had directed the BHU to carry out the exercise for promotion H

Aafresh as per the law and the observations made in the said judgment.The Division Bench allowed the appeal, set aside the judgment of thelearned Single Judge and dismissed the writ petition. Aggrieved by thesame, the original writ petitioners are in appeal before this Court.

5. Facts in brief are that for filling up 14 posts of Class-III (JuniorBClerk Grade) by way of promotion, the University issued a Notification/Advertisement dated 17.12.2005 inviting applications from permanentClass-IV employees for promotion as Junior Clerk in the Pay-Scale ofRs.3050-4590. The eligibility prescribed in the aforesaid Notification readsas under:C“Eligibility:

All Class-IV employees, who have put in five years servicesand who have passed matriculation examination or equivalentwill be eligible for appointment as Junior Clerk under 25%promotion quota.

DSuch eligible candidates will be tested in:A typing test in English/Hindi for a minimum of 30 words perminutes; and after qualifying in the test.

Note: If an employee does not passed the typing test and isotherwise eligible for promotion he/she be promoted subjectEto the condition that he/she passes the typing test within twoyears from the date of his/her promotion failing which he/shewill be reverted.

Provided further that for such employees, typing test be heldat least twice a year.FTwo papers of simple English, Hindi and Arithmetic of onehour duration.”

6. It would be worthwhile to mention here that in the meantime, itwas resolved to hold a computer typing test on 20.04.2006. However,upon a representation being made, the said computer type test wasGdeferred vide letter dated 19.04.2006 and, later vide communication dated04.05.2006, it was informed that final merit list would be based on themarks obtained in typing test, written test and interview. The type testcould be taken on a computer or on a manual type-writer. The typingtest was held on 16.05.2006; the written test was held on 23.09.2006and interview was held on 31.05.2007 and 01.06.2007. Thereafter, meritH

list was prepared by the Board of Examiners appointed for making theselection/promotion and, accordingly, as per its recommendations, 14selected candidates (respondent nos.3 to 16) were issued appointmentletters on 05.06.2007. The appellants made a representation against thedecision to appoint respondent nos.3 to 16, which was rejected by thecompetent 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 Universitythrough its Registrar as respondent No.1, Vice-Chancellor, Banaras HinduUniversity as respondent No.2, and the 14 selected candidates asrespondent nos.3 to 16. The petition was filed primarily on the groundthat the Advertisement/Notification, which was issued laying down theeligibility conditions, as per paragraph 6.4 of the Manual did not providefor any interview, but later on, changing the rules of the game and inviolation of the eligibility conditions laid down in para 6.4, the Board ofExaminers which did not have any authority or power to amend paragraph6.4 laying down the eligibility conditions introduced an interview. TheBoard of Examiners further laid down the criteria for preparing the meritlist out of total of 100 marks, with the following break-up: 20 marks forthe type test, 60 marks for the written test of Hindi, English and Arithmeticand 20 marks for the interview.

8. In the counter-affidavit filed by the BHU as also by therespondent nos.3 to 16, the eligibility conditions as laid down in para 6.4of the Manual and duly approved by the Executive Council, which is thesupreme Authority, was not disputed. Even during the course of thearguments, learned counsel for the BHU agreed to the submission ofthe appellants that the Board of Examiners had no authority to alter theeligibility conditions or the procedure prescribed under para 6.4 of theManual. It is further undisputed that Board of Examiners was not vestedwith 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 positionthat it is only the Executive Council, which could have amended ormodified the procedure/eligibility prescribed under para 6.4 of the Manual.

9. The learned Single Judge after considering the entire materialon record and also the catena of decisions relied upon by the respondent-BHU and the private respondents was of the view that the Board ofExaminers committed grave error in making selections by awarding markson the type test, written test and interview and then preparing the meritlist.

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A10. The learned Single Judge allowed the writ petition. It quashedthe orders impugned dated 05.06.2007 and 02.07.2007 as also theappointments of respondent Nos.3 to 16 on Class-III post and furtherdirected BHU to hold fresh selections for promotion to the post of Class-III, complete the same expeditiously within three months, strictly inaccordance with the Rules and in the light of observations made above.BIt also awarded costs quantified at Rs.50,000/. The operative part of thejudgment of learned Single Judge is reproduced hereunder:

“56. In the result, the writ petition is allowed. Impugned ordersdated 5.6.2007 and 2.7.2007 and appointments ofrespondents 3 to 16 on Class IV posts are hereby quashed.

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57. The University is directed to hold fresh selection forpromotion to the post of Class III against the vacancies forwhich selection was held by notification dated 17.12.2005and complete the same expeditiously and in any case, withinthree months from the date of production of certified copy ofDthis order strictly in accordance with Rules and in the light ofobservations 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 containedEin paragraph Nos.53, 54 and 55 are also reproduced hereunder:

“53. In the present case, I am constrained to observe that thenotification published by University categorically reiteratedwhat was contained in Clause 6.4 of the Manual. The rulesof game were made known to everybody but Board ofFExaminers, which was constituted to hold selection strictly inaccordance with aforesaid decided norms, changed the rulesin between the game and held selection in a manner unknownto the extant Rules applicable for promotion from Class IV toClass III in BHU. This was wholly illegal and withoutjurisdiction. It is well settled that rules of games cannot beGallowed to be changed during the game.

54. This Court has no manner of doubt in the light of abovediscussion that petitioners have been discriminated and havebeen considered in a manner which was never contemplatedby the University for considering promotion from Class IV toHClass III.

55. One more aspect also not be ignored. In making suchpromotions persons totally unequal to each other in variousrespects have to be considered. A Class IV employee who wasappointed in 1977 has much longer experience of a Class IVpost but in the context of personality and other aspects, hemay not compare with his much junior entered in service asClass IV employee after 10, 20 or 25 years. The subsequenteducational advancement also cannot be ignored. It is evidentthat persons who were appointed in 1977 to 1997, i.e.petitioners, got occasion for consideration for promotion toClass III post after decades of service. For such persons,making interview as a part of selection when it was notcontemplated in the relevant procedure prescribed by theUniversity obviously made it difficult for them to qualify sincethey may not compete with young and youngest new employeeshaving better qualifications. But one must also haveconsidered that they at the fag end of service to their credit,have long experience. Better honour and respect needed sothat they may retire from a higher post after getting at leastone promotion at the fag end of their service. The Universitymust have all these facts and other relevant aspects in mindwhen laid down the procedure in the Manual, butunfortunately the Board of Examiners acted unmindful ofwider aspects. The acted wholly illegally by ignoring theestablished procedure laid down in the Rules and on thecontrary settled their own selection procedure by exceedingtheir authority and jurisdiction.”

12. BHU as also the private respondent nos. 3 to 16 preferredintra-court Appeals registered as Special Appeal No.24 of 2012 (BanarasHindu University and another Vs. Sri Krishna Rai and others), SpecialAppeal No.9 of 2012 (Shri Sarvjit Singh and others Vs. Sri Krishna Raiand others) and Special Appeal No.25 of 2012 (Ram Kishore Pandeyand others Vs. Banaras Hindu University and others). The Division Benchvide judgment dated 29.07.2016 was of the view, as already stated above,that the appellants having appeared in the examination process as alsothe interview without any protest, upon being unsuccessful could nothave challenged the selection process. The Division Bench relied upona number of decisions, which we shall shortly discuss, in support of itsview and accordingly allowed the Special Appeals, set aside the judgmentof the learned Single Judge and dismissed the writ petition.

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A13. Having heard learned counsel for the parties and havingperused the material on record as also the case laws relied upon by thelearned counsel for the parties, we now proceed to deal with the issue athand.

14. As per para 6.4 of the Manual duly approved by the ExecutiveBCouncil’s Resolution No.223 dated 2/3[rd] of November, 1980, all Class-IV employees, who have put in five years’ service and who have passedmatriculation examination or equivalent, would be eligible for promotionto the post of Junior Clerk Grade. Such eligible candidates would betested in a typing test in English/Hindi for a minimum speed of 30 wordsper minute. The note appended to such Clause of typing test mentionsCthat if an employee does not pass the typing test and is otherwise eligiblefor promotion, he be promoted subject to the condition that he passes thetyping test within two years from the date of his promotion failing which,he would be reverted. The note further provided that for such employeesthe typing test would be held twice a year. Para 6.4(ii)(b) provided thatDtwo papers of simple English, Hindi and Arithmetic of one hour durationwould 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 ofGroup-D in-service employees and it further provided that the seniorityElist would be prepared after passing the departmental test and it furtherprovided that no relaxation in prescribed qualification shall be given forin-service employees.

16. The net effect of the above eligibility and procedure prescribedfor promotion of Group-D Class-IV employees to the cadre of JuniorClerk would be that- (1) a type test would be held with a minimum speedFof 30 words per minute in Hindi/English. This type test was notmandatorily required to be qualified and even those eligible candidates,who could not qualify the type test, but were otherwise eligible havingpassed in the departmental test, would be allowed two years’ time afterjoining to qualify the typing test and for such candidates, typing testGwould be held twice a year.

17. The only test required for eligible candidates was to pass inthe 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 entitledHto be placed in the seniority list for promotion. It further mandated that even where eligible candidates had passed in the departmental writtentest of simple English, Hindi and Arithmetic, but could not pass in thetyping test, would still be eligible for promotion and be placed in theseniority list with a rider that he/she would have to qualify the typing testwithin two years and such typing test for these promoted candidateswould be held twice a year, that is to say that they would have at leastfour chances of appearing in the typing test and qualifying it subsequentto their promotion.

18. In the present case, the Board of Examiners comprising oflarge number of Members changed the entire procedure and theyestablished a completely new procedure. They awarded 20 marks forthe type test treating it to be compulsory, 60 marks for the writtendepartmental test of simple English, Hindi and Arithmetic with 20 marksfor each subject and further introduced an interview of 20 marks. Thus,the merit list was to be prepared on the total 100 marks as distributedabove.

19. There is neither any provision nor any other indication in theManual duly approved by the Executive Council for preparing such amerit list based upon the marks awarded under different heads. Thepromotion was to be made on the basis of seniority subject to passingthe departmental written test, once the candidate was eligible havingfive years’ experience in Class-IV and matriculation certificate orequivalent. The intention and object as culled out from the aforesaideligibility procedure was that, seniority subject to qualifying the writtentest would be the criteria for promotion.

20. The Board of Examiners on their own changed the criteriaand made it purely merit based by introducing an interview and alsopreparing 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 theManual, type test was not mandatory. Anybody who would fail in thetype test, could also be promoted subject to the rider that they wouldhave to qualify the type test within two years from his joining.

21. What we notice is that, the Division Bench approved thereasoning of the learned Single Judge. The relevant extract of thejudgment of the Division Bench is reproduced below:

“Learned Single Judge as already noted above has rightlyproceeded to observe that interview was not at all subscribed AB

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1114SUPREME COURT REPORTS

Aby the provisions holding the field. We are also of the sameview that procedure prescribed ought to have been adheredto by the Board of Examiners. Board of Examiners on theirown could not have changed the procedure already holdingthe field as laid down by the Executive Council.”

B22. However, the Division Bench fell in error in applying theprinciple of estoppel that the appellants having appeared in the interviewand being unsuccessful proceeded to challenge the same and on thatground alone, allowed the appeals, set-aside the judgment of the learnedSingle Judge. The Division Bench having approved the reasoning of thelearned Single Judge, ought not to have interfered in the judgment of theClearned Single Judge on a technical plea. The Division Bench ought tohave considered that the appellants were Class-IV employees workingfrom 1977 onwards and expecting from them to have raised seriousobjection or protest at the stage of interview and understanding theprinciples of changing the Rules of the game, was too far-fetched,Dunreasonable and unwarranted.

23. The case laws relied upon by the Division Bench would haveno application in the facts of the present case as none of the judgmentsrelied upon by the Division Bench laid down that principle of estoppelwould be above law. It is settled principle that principle of estoppel cannotEoverride the law. The manual duly approved by the Executive Councilwill 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. Chandrashekharanand others[2].

F(2) Utkal University and others Vs. Dr. N.C. Sarangi andothers[3].

(3) Chandra Prakash Tiwari Vs. Shakuntala[4] .

(4) K.A. Nagmani Vs. Indian Airlines[5].

(5) Madan Lal and others Vs. State of Jammu and KashmirGand others[6].

2 JT 1998(1) SC 2953 JT 1999 (1) SC 101.4 2002 (6) SCC 1275 2009 (5) SCC 515H6 1995(3) SCC 486

25. In the case of Chandrashekharan (supra), the plea takenby the unsuccessful candidates was that the marks prescribed forinterview and confidential reports were disproportionately high and theauthorities could not fix a minimum to be secured either in interview orin the assessment of annual confidential reports. In the above case, therewas no violation of any statutory rules or the eligibility determined by therule making authority.

26. In the case of Utkal University (supra), the objection takenby the unsuccessful candidates was with regard to the composition ofthe Selection Committee. This again would not have any application tothe facts of the present case.

27. In the case of Chandra Prakash Tiwari (supra), theunsuccessful candidate did not find the result of the interview palatableand 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 unsuccessfulcandidates were given equal opportunity and no violation of any statutoryrule was alleged, as such, this judgment would also have no application.

29. In the case of Madan Lal (supra), again the objection takenby the unsuccessful candidate was regarding the process of interviewbeing unfair. This case also does not have any application to the facts ofthe present case.

30. On the contrary, what we find is that, in the case of Dr.Krushna Chandra Sahu and others Vs. State of Orissa and others[7],it has been held that the suitability criteria is to be laid down by the rulemaking authority and that the selection criteria cannot be laid down bythe Selection Board/Selection Committee unless specifically authorized.In the present case, firstly, there was no authorization to the Board ofExaminers to lay down the selection criteria and further there was clearviolation of the suitability criteria laid down by the rule making authority.Paragraph nos. 31, 32, 33, 34, 35 and 36 of the said judgment arereproduced hereunder:

“31. Now, power to make rules regulating the conditions ofservice of persons appointed on Govt. Posts is available to 7 1995 (6) SCC 1

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the Governor of the State under the Proviso to Article 309and it was in exercise of this power that the present ruleswere made. If the statutory Rules, in a given case, have notbeen made, either by the Parliament or the State Legislature,or, for that matter, by the Governor of the State, it would beopen to the appropriate Government (the Central Governmentunder Article 73and the State Government under Article 162)to issue executive instructions. However, if the Rules havebeen made but they are silent on any subject or point in issue,the omission can be supplied and the rules can besupplemented by executive instructions. (See: Sant RamSharma V. State of Rajasthan).

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32. In the instant case, the Government did neither issue anyadministrative instruction nor did it supply the omission withregard to the criteria on the basis of which suitability of thecandidates was to be determined. The members of theSelection Board, of their own, decided to adopt theconfidential character rolls of the candidates who werealready employed as Homoeopathic Medical Officers, as thebasis for determining their suitability.

33. The members of the Selection Board or for that matter,Eany other Selection Committee, do not have the jurisdictionto lay down the criteria for selection unless they are authorisedspecifically in that regard by the rules made under Article309.It is basically the function of the Rule making authorityto provide the basis for selection. this Court in State of AndhraFPradesh and Anr. v. V. Sadanandam and Orsobserved asunder: (SCC pp. 583-84, para 17):

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“We are now only left with the reasoning of the Tribunal thatthere is no justification for the continuance of the old ruleand for personnel belonging to either zone being transferredon promotion to offices in other zones. In drawing suchconclusion, the Tribunal has travelled beyond the limits of itsjurisdiction. We need only point out that the mode ofrecruitment and the category from which the recruitment to aservice should be made are all matters which are exclusivelywithin the domain of the executive. It is not for judicial bodies G

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to sit in judgment over the wisdom of the executive in choosingthe mode of recruitment of the categories from which therecruitment should be made as they are matters of policydecision falling exclusively within the purview of theexecutive.” (Emphasis supplied).

34. The Selection Committee does not even have the inherentjurisdiction to lay down the norms for selection nor can suchpower be assumed by necessary implication. In P.K.Ramachandra lyer and Ors. v. Union of India and Ors. (SCCpp. 180-81 para 44) , it was observed :

“By necessary inference, there was no such power in theASRB to add to the required qualifications. If such power isclaimed, it has to be explicit and cannot be read by necessaryimplication for the obvious reasons that such deviation fromthe rules is likely to cause irreparable and irreversibleharm”.

35. Similarly, in Umesh Chandra Shukla Etc. v. Union of Indiaand Ors. it was observed that the Selection Committee doesnot possess any inherent power to lay down its own standardsin addition to what is prescribed under the Rules. Both thesedecisions were followed in Durgacharan Misra v. State ofOrissa and Orsand the limitation of the Selection Committeewere pointed out that it had no jurisdiction to prescribe theminimum marks which a candidate had to secure at the viva-voce test.

36. It may be pointed out that rule making function underArticle 309is legislative and not executive as was laid downby this Court in B.S. Yadav and Ors. v. State of Haryana andOrs. For this reason also, the Selection Committee or theSelection Board cannot be held to have jurisdiction to laydown any standard or basis for selection as it would amountto legislating a rule of selection.”

31. Further in the case of Tata Chemicals Ltd. Vs.Commissioner of Customs (preventive), Jamnagar[8], it has been A

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Alaid down that there can be no estoppel against law. If the law requiressomething to be done in a particular manner, then it must be done in thatmanner, and if it is not done in that manner, then it would have noexistence in the eye of the law. Paragraph 18 of the said judgment isreproduced below:

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“18. The Tribunal’s judgment has proceeded on the basis thateven though the samples were drawn contrary to law, theappellants would be estopped because their representativewas present when the samples were drawn and they did notobject immediately. This is a completely perverse finding bothCon fact and law. On fact, it has been more than amply provedthat no representative of the appellant was, in fact, present atthe time the Customs Inspector took the samples. Shri K.M.Jani who was allegedly present not only stated that he didnot represent the Clearing Agent of the appellants in that hewas not their employee but also stated that he was not presentDwhen the samples were taken. In fact, therefore, there was norepresentative of the appellants when the samples were taken.In law equally the Tribunal ought to have realized that therecan be no estoppel against law. If the law requires thatsomething be done in a particular manner, it must be done inEthat manner, and if not done in that manner has no existencein the eye of law at all. The Customs Authorities are notabsolved from following the law depending upon the acts ofa particular assessee. Something that is illegal cannot convertitself into something legal by the act of a third person.”

F32. For all the reasons recorded above, the appeals deserve to beallowed. They are, accordingly, allowed.

33. The impugned judgment of the Division Bench dated29.07.2016 is set aside and the judgment of the learned Single Judgedated 26.08.2011 is restored.G

34. We have been informed that some of the appellants haveretired and a couple of them have also died, post retirement. Rest ofthem are still working. Since the examinations have already been held inthe year 2006-07, all the appellants who are found to be eligible forpromotion as per the existing rules and as directed by the learned SingleH

KRISHNA RAI (DEAD) THROUGH LRs & ORS. v. BANARAS HINDUUNIVERSITY THROUGH REGISTRAR & ORS. [VIKRAM NATH, J.]

Judge, would be extended all consequential benefits. Further, where theappellants have died, the benefit would be extended to their legal heirsentitled under law for the same.

35. Pending application(s), if any, is/are disposed of.

Devika Gujral

Appeals allowed.

(Assisted by : Shevali Monga, LCRA)

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