TMI Blog2022 (6) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... sh, 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. In the case of M/S. TATA CHEMICALS LTD. VERSUS COMMISSIONER OF CUSTOMS (PREVENTIVE) JAMNAGAR [ 2015 (5) TMI 557 - SUPREME COURT ], 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. 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 - Appeal allowed. - Hon'ble Judges Dinesh Maheshwari and Vikram Nath, JJ. For the Appellant : Deepak Jain, Jaspreet Aulakh, K.B. Pradeep, Tanpreet Gulati, Advs. and Vaibhav Manu Srivastava, AOR For the Respondents : T.V. George, AOR, Shish Pal Laler, Ghanshyam Singh, Hitesh Kumar, Atul, Advs. and Rajnish Kumar Jha, AOR JUDGMENT Vikram Nath, J. 1. Leave granted. 2. I.A.D. No. 133982 of 2021 is allowed. 3. In these thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 type-writer. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the post of Class-III, complete the same expeditiously within three months, strictly in accordance with the 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: 53. In the present case, I am constrained to observe that the notification published by University categorically rei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d intra-court Appeals registered as Special Appeal No. 24 of 2012 (Banaras Hindu University and Anr. v. Sri Krishna Rai and Ors., Special Appeal No. 9 of 2012 (Shri Sarvjit Singh and Ors. v. Sri Krishna Rai and Ors. and Special Appeal No. 25 of 2012 (Ram Kishore Pandey and Ors. v. Banaras Hindu University and Ors. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 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 Class-IV and matriculation certificate or equivalent. The intention and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch principle of estoppel or acquiescence. 24. The Division Bench relied upon the following judgments: (1) Union of India and Anr. v. N. Chandrashekharan and Ors. JT 1998(1) SC 295. (2) Utkal University and Ors. v. Dr. N.C. Sarangi and Ors. JT 1999 (1) SC 101. (3) Chandra Prakash Tiwari v. Shakuntala 2002 (6) SCC 127. (4) K.A. Nagmani v. Indian Airlines 2009 (5) SCC 515. (5) Madan Lal and Ors. v. State of Jammu and Kashmir and Ors. 1995(3) SCC 486. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 selection this Court in State of Andhra Pradesh and Anr. v. V. Sadanandam and Ors. observed as under: (SCC pp. 583-84, 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 judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 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 j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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