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TMI Blog2013 (4) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... alth and Family Welfare Department Physiotherapist and Occupational Therapist Service Rules, 1998 (hereinafter 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 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 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 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 non suit the private respondents despite the fact 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 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 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. 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 15 of the Special Rules, which is reproduced below, it was laid down that direct recruitment to the various categories 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 (outside the purview of the Uttar Pradesh Public Service Commission) Rule, 1998, as amended from time to time." 13. By Notification dated 4.8.2008, the Special Rules were amended and the existing Rule 15 was substituted by the following: 15(1) For direct recruitment the appointing Authority shall noting the format of application form and vacancies together in the following manner: (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. (iii) By notifying vacancies to the Employment Exchange. (2) For the purpose of direct recruitment there shall be constituted a selection committee compressing the following- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 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 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. 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: "Overriding effect 2. These rules shall have effect notwithstanding anything to the contrary contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vide Office Memo No-1063/XXX(2) 2010 dated 03.08.2010 of Personnel Department-2, Uttarakhand State, Uttarakhand Technical Education Board, Roorkee has been chosen as recruiting agency for vacant posts in various departments of government which are outside the 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 Rules, reads thus: "11. SELECTION EXAMINATION AND SYLLABUS OF QUESTION PAPER:- For selection, there shall be an Objective type written examination Of 100 marks 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 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. Retrenched employees will be award ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be declared successful, the private respondents will be deemed to have waived their right to challenge the advertisement and 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. 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 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 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 kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following words: "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 chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test 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 not palatable to him, he cannot turn 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 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." 22. In M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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