Deodutt Sahu vs State Of Chhattisgarh
2023 Latest Caselaw 882 Chatt

                                       1

                                                                          AFR


              HIGH COURT OF CHHATTISGARH, BILASPUR


                             WA No. 244 of 2022
Arvind Kishan S/o Late Sanyasi Kishan Aged About 25 Years R/o House No.
233, Village Bhojpalli, Post Loing, Loing, Police Station Chakradhar Nagar
Raigarh, District - Raigarh (C.G.).
                                                                 ---- Appellant
                                   Versus
1.    State of Chhattisgarh Through Secretary, Health Department Mahanadi
      Bhawan, Mantralaya, Naya Raipur, District - Raipur (C.G.).
2.    Secretary Professional Examination Board, Raipur, District Raipur (C.G.)
3.    Dean, Late Lakhiram Agrawal, Memorial Medical College, Raigarh,
      District - Raigarh Chhattisgarh.
4.    Yogesh Kumar Dansena (Interveners) S/o Shri Gendlal Dansena Aged
      About 41 Years Chhote Attarmuda, Near Jila Panchayat Raigarh, District
      - Raigarh Chhattisgarh.
5.    Om Prakash Sidar (Interveners) S/o Rajkumar Sidar Aged About 29
      Years R/o Village Rembar, Post - Chikhli, Tahsil Pushaur, District
      Raigarh, Chhattisgarh.
6.    Aarti Dehri (Interveners) D/o Suresh Chand Dehri Aged About 28 Years
      R/o Ram Bhata, Sanjay Maidan Ward No. 3 Raigarh, District Raigarh,
      Chhattisgarh.
7.    Narendra Singh Sidar (Interveners) S/o Fakeer Singh Sidar Aged About
      24 Years R/o Kesla, Post Kesla, Tahsil Lailunga, District - Raigarh,
      Chhattisgarh.
8.    Ku. Pinki Kural (Interveners) D/o Chaitram Kural Aged About 23 Years
      R/o Malidipa, Baidadar, Raigarh, District - Raigarh, Chhattisgarh.
9.    Vinod Kumar Sahu (Interveners) S/o Bhagauram Sahu Aged About 32
      Years R/o Mudpar Post Kapan, Tahsil Akaltara, District - Janjgir-Champa,
      Chhattisgarh.
10.   Dinesh Kumar Sahu (Interveners) S/o Tejram Sahu Aged About 26 Years
      R/o Mitthumuda, Rajiv Gandhi Nagar, Raigarh, District - Raigarh,
      Chhattisgarh
11.   Manraj Tamboli S/o Shri Manharan Lal Aged About 30 Years R/o Village
      Khokhra, Tahsil Janjgir, District Janjgir-Champa, Chhattisgarh
                                                            ---- Respondents

WA No. 247 of 2022 Alka Yadav D/o Sardhu Lal Yadav Aged About 28 Years R/o Shanti Nagar, Ward-8, Near Pani Tanki, Kumhari, Dhamdha, District - Durg (Chhattisgarh) 490042

---- Appellant

Versus

1. State Of Chhattisgarh Through Secretary, Health Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, District - Raipur (Chhattisgarh).

2. Secretary Professional Examination Board, Raipur, District - Raipur (Chhattisgarh).

3. Dean, Late Lakhiram Agrawal Memorial Medical College, Raigarh, District - Raigarh, Chhattisgarh.

4. Yogesh Kumar Dansena (Interveners) S/o Shri Gendlal Dansena Aged About 41 Years Chhote Attarmuda, Near Jila Panchayat Raigarh, District

- Raigarh, Chhattisgarh.

5. Om Prakash Sidar (Interveners) S/o Rajkumar Sidar Aged About 29 Years R/o Village Rember, Post - Chikhli, Tahsil Pushaur, District - Raigarh, Chhattisgarh.

6. Aarti Dehri (Interveners) D/o Suresh Chand Dehri Aged About 28 Years R/o Ram Bhata, Sanjay Maidan Ward No. 3 Raigarh, District - Raigarh, Chhattisgarh

7. Narendra Singh Sidar S/o Fakeer Singh Sidar Aged About 24 Years R/o Kesla, Post Kesla, Tahsil Lailunga, District - Raigarh, Chhattisgarh.

8. Ku. Pinki Kural (Interveners) D/o Chaitram Kural Aged About 23 Years R/o Malidipa, Baidadar, Raigarh, District - Raigarh, Chhattisgarh

9. Vinod Kumar Sahu (Interveners) S/o Bhagauram Sahu Aged About 32 Years R/o Mudpar, Post Kapan, Tahsil Akaltara, District - Janjgir- Champa, Chhattisgarh.

10. Dinesh Kumar Sahu (Interveners) S/o Tejram Sahu Aged About 26 Years R/o Mitthumuda, Rajiv Gandhi Nagar, Raigarh, District - Raigarh, Chhattisgarh

11. Manraj Tamboli S/o Shri Manharan Lal Aged About 30 Years R/o Village Khokhra, Tahsil Janjgir, District - Janjgir-Champa, Chhattisgarh

---- Respondents WA No. 322 of 2022

1. Deodutt Sahu S/o Shri Babulal Sahu Aged About 40 Years R/o Rajeev Gandhi Nagar Raigarh, Ward No. 36, Raigarh, Police Station Jutmil Raigarh, District : Raigarh, Chhattisgarh

2. Yogesh Kumar Dansena S/o Gend Lal Dansena Aged About 32 Years R/o Chhote Attarmuda, Near Zila Panchayat Office, Raigarh, Police Station Chakradhar Nagar Raigarh, District : Raigarh, Chhattisgarh

3. Khageswar Chouhan S/o Shri Pujari Ram Chouhan, Aged About 41 Years R/o Mittumudha Ward No. 36, Near Community Hall Raigarh, District : Raigarh, Chhattisgarh

4. Vinod Kumar Sahu, S/o Bhaguram Sahu Aged About 36 Years R/o Mudpar, Post Kapan, Tahsil Akaltara, District : Janjgir-Champa, Chhattisgarh

---- Appellants Versus

1. State of Chhattisgarh Through Its Secretary, Department of Health,

Mantralaya Mahanadi Bhawan, Naya Raipur, District : Raipur, Chhattisgarh

2. State of Chhattisgarh Through Its Secretary, Department of Medical Education, Mantralaya Mahanadi Bhawan, Naya Raipur, District : Raipur, Chhattisgarh

3. Directorate of Medical Education Through Its Director, Old Nurses Hostel, DKS Bhawan Premises, Raipur, District : Raipur, Chhattisgarh

4. Late Shri Lakhiram Agrawal Memorial Medical Collage Raigarh, Through Its Dean, District : Raigarh, Chhattisgarh

5. Secretary, Professional Examination Board, Raipur, District: Raipur, Chhattisgarh

6. Manraj Tamboli S/o Shri Manharan Lal Aged About 34 Years R/o Village Khokhra, Tahsil Janjgir, District : Janjgir-Champa, Chhattisgarh

---- Respondents (Cause Title taken from Case Information System)

For Appellants : Mr. Sunil Pillai, Advocate For Respondents/ State : Ms. Astha Shukla, Government Advocate and Mr. Vikram Sharma, Deputy Government Advocate For Respondent / Professional : Dr. Saurabh Kumar Pande, Advocate Examination Board For Respondents/ Intervenors : Mr. Vinod Deshmukh and Mr. Shashi Kumar Kushwaha, Advocates For Respondents/Writ Petitioner - : Mr. Ajay Shrivastava, Advocate Manraj Tamboli Dates of Hearing : 23.11.2022, 02.12.022, 07.12.2022 and 13.12.2022 Date of Judgment : 10.02.2023

Hon'ble Mr. Arup Kumar Goswami, Chief Justice Hon'ble Mr. Sanjay Agrawal, Judge

C A V Judgment

Per Arup Kumar Goswami, Chief Justice

Heard Mr. Sunil Pillai, learned counsel, appearing for the

appellants. Also heard Ms. Astha Shukla, learned Government Advocate

and Mr. Vikram Sharma, learned Deputy Government Advocate,

appearing for the State, Dr. Saurabh Kumar Pande, learned counsel,

appearing for the respondent-Chhattisgarh Professional Examination

Board, Mr. Ajay Shrivastava, learned counsel, appearing for the writ

petitioner in WP(S) No.2683/2018 (Manraj Tamboli), as well as Mr. Vinod

Deshmukh and Mr.Shashi Kumar Kushwaha, learned counsel, appearing

for the intervenors.

2. WA No. 244/2022 and WA No. 247/2022 are preferred against an

order dated 19.04.2022 passed by the learned Single Judge in WP(S) No.

2683/2018. WA No. 322/2022 is preferred against an order dated

19.04.2022 passed by the learned Single Judge in WP(S) No. 7341/2018.

3. The appellants in WA Nos. 244/2022 and 247/2022 were not

parties to the writ proceedings. The appellants in WA No. 322/2022 were

writ petitioners in WP(S) No. 7341/2018.

4. WP(S) No. 7341/2018 came to be disposed of in the light of the

order dated 19.04.2022 passed in WP(S) No. 2683/2018.

5. The Dean, Late Lakhiram Agrawal Memorial Medical College,

Raigarh, had issued an advertisement dated 08.09.2017, which was later

modified on 19.09.2017, inviting applications, amongst others, for 42 posts

of Ward Boy/Aaya, out of which 6, 7, 11 posts were reserved for Other

Backward Class (OBC), Scheduled Caste (SC) and Scheduled Tribe (ST),

respectively, leaving 18 posts towards general category.

6. The case of the petitioner in WP(S) No. 2683/2018, in short, was

that as per clause 19 of the advertisement, selection list was to be

prepared on the basis of the written examination to be conducted. The

petitioner responded to the advertisement and appeared in the

examination. Result was declared on 09.01.2018. However, after

declaration of the result, a letter dated 24.01.2018 was issued against the

condition of the advertisement that an aptitude test would be taken and

thereafter, final selection list would be prepared. The petitioner objected

holding of the aptitude test. However, the petitioner appeared in the said

test held on 04.02.2018.

7. After declaration of provisional result on 09.01.2018, objections had

been invited and the petitioner had made an objection with regard to

question Nos. 2 and 6. It is stated that the objections were decided by a

letter dated 22.02.2018 intimating that question No. 2 has been deleted.

Regarding question No. 6, it is said that there was a printing mistake and

the correct question was announced in the examination hall. The

petitioner does not dispute that the correct question was announced in the

examination hall, but contends that the same was told about 30 minutes

after commencement of the examination, by which time he had chosen

the alternative question.

8. The writ petition was filed challenging the letter dated 24.01.2018

alongwith further prayers to direct the respondent authority to declare the

result on the basis of written examination and in the alternative, to treat

the question Nos. 2 and 6 as correct questions without any alteration and

marks be awarded on option D (none of the above).

9. In the return filed by the State, it is stated that the result of the

written test published on 22.01.2018 contains the names of all the

candidates numbering 5631 including those candidates who secured

marks less than 50%, while only 2078 candidates qualified by securing

50% of the marks and above. After declaration of the result, a meeting

was convened by the respondent No. 3 on the same date and an

unanimous decision was taken to conduct a skill test so that best

candidates are selected. The authority to conduct skill test was conferred

by Rule 6(1), (2), (3), (4) and (5) of Chhattisgarh Medical Education

Department Non-Ministerial (Related to Directorate Medical Education

Department) Class III Service Recruitment Rules, 2015 (for short, the

Rules of 2015). It was also decided that the merit list of the candidates to

be selected for the 42 posts would be prepared from the result of marks

obtained in the skill test only and the candidates for the skill test were

called in the ratio of 01:07 on the basis of the marks obtained in the

written test conducted. Accordingly, they were informed through mobile

phone messages, newspaper and website of the Medical College. It is

stated that the skill test consisting of written examination of multiple choice

questions of 30 marks and spotting test as a test for skills of 20 marks,

were conducted on 04.02.2018 and all the candidates, who were called

including the petitioner appeared without any objection and the result was

published on 22.02.2018. In the return, the respondents acknowledged

that the petitioner had raised objection on 29.01.2018.

10. WP(S) No. 7341/2018 was filed by the petitioners contending that

petitioners No. 2 and 4 had filed an application for intervention in WP(S)

No. 2683/2018 and petitioners No. 1 and 3 had filed an application for

intervention in WP(S) No. 2081/2018 and as their names appeared at

serial Nos. 1, 2, 4 and 7 of the final select list, they were called for

verification of documents on 08.03.2018. Accordingly, in the writ petition,

they had prayed for declaration that they are entitled to be appointed to

the post of Ward Boy/Aaya on the basis of the outcome of the verification

held on 08.03.2018 and for a direction to issue final list of selected

candidates after verification that was held on 08.03.2018 and to complete

the selection process by issuing appointment orders to the petitioners.

11. Appellant in WA No. 244/2022 is an ST candidate and appellant in

WA No. 247/2022 is an OBC candidate.

12. As the appellants in WA No. 244 of 2022 and 247 of 2022 were not

parties to the writ proceedings, they had filed applications seeking leave to

file appeal. The appeals were reserved for judgment on 07.12.2022 and

while preparing the judgment, it came to the notice of the Court that those

applications were not disposed of. Hence, the cases were listed under the

heading 'to be spoken to' on 13.12.2022, on which date the applications

seeking leave to appeal were allowed and the appeals were again

reserved for judgment.

13. Mr. Sunil Pillai, learned counsel, appearing for the appellants in all

the cases submits that the writ petitioner in WP(S) No.2683/2018 though

had filed an objection, thereafter, he had participated in the selection

process and the writ petition came to be filed by him only after declaration

of the result, after coming to know that he was unsuccessful. It is

submitted that the learned Single Judge did not consider this aspect of the

matter in proper perspective. He places reliance on the judgment of the

Calcutta High Court in M/s. Mannan Travels Transport Contractor &

Others v. Durgapur Projects Ltd. & Others, MAT No. 298/2009, decided

on 27.07.2009.

14. Mr. Ajay Shrivastava, learned counsel, appearing for the writ

petitioner in WP(S) No.2683/2018 (Manraj Tamboli), while relying on the

judgment passed by the learned Single Judge, has also placed reliance in

the cases of Rajesh Kumar Gupta v. State of U.P., reported in 2005 CJ

(SC) 1067 and Ramjit Singh Kardam & Others v. Sanjeev Kumar &

Others, reported in 2020 CJ (SC) 373.

15. Mr. Vinod Deshmukh, learned counsel, appearing for the

intervenors, while supporting Mr. Ajay Shrivastava, has placed reliance in

the case of Krishna Rai (Dead) through Legal Representatives &

Others v. Banaras Hindu University, through Registrar & Others,

reported in (2022) 8 SCC 713.

16. We have considered the submissions of the learned counsel for the

parties and have perused the materials on record.

17. The learned Single Judge had reproduced Rules 6 and 11 of the

Rules of 2015 in Hindi. English version of the Rules 6 and 11 are

reproduced herein below:

6. Methods of recruitment.-

(1) After the commencement of these rules, the recruitment in

the service shall be conducted through the following methods,

namely :-

(a) By direct recruitment through competitive examination/

selection;

(b) By promotion of members of the service;

(c) By transfer/deputation of the persons, who hold in a

substantive/officiating capacity such posts in such

services, as may be specified in this behalf.

(2) The number of the persons recruited under clause (a), (b)

and (c) of sub-rule (1) shall not at any time exceed the

percentage shown in Schedule-II of the number of posts as

specified in Schedule-I.

(3) Subject to the provisions of these rules the method or

methods of recruitment to be adopted for the purpose of filling

any particular vacancy or vacancies in the service, as may be

required to be filled during any particular period of

recruitment, and the number of persons to be recruited by

each method shall be determined on each occasion by the

Appointing Authority in consultation with the Government.

(4) Notwithstanding anything contained in sub-rule (1), if in

the opinion of the Appointing Authority, the exigencies of the

service so require, then he may, with prior concurrence of the

General Administration Department of the Government, adopt

such methods of recruitment to the service other than those

specified in the said sub-rule, as it may, by order issued in this

behalf prescribe.

(5) For the post to be filled up by direct recruitment through

selection on the merit basis, the criteria shall be prepared by

the Government. However, it shall be mandatory for

Appointing Authority to constitute a selection committee for

this purpose, which may adopt any appropriate criteria other

than these criteria with the consent of the Government.

(6) At the time of recruitment to the service, the provisions of

the Chhattisgarh Lok Seva (Anusuchit Jatiyon, Anusuchit

Janjatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan)

Adhiniyam, 1994 (No. 21 of 1994) and the instructions (as

amended) issued from time to time by the General

Administration Department of the Government shall apply.

xxx xxx xxx

11. Direct Recruitment by Competitive Examination/

Selection/ Interview.-

(1) Direct Recruitment by Competitive Examination:-

(i) Appointing Authority shall constitute a Selection

Committee comprising of five members.

(ii) The competitive examination for recruitment to the

service shall be held at such interval as the Appointing

Authority may, in consultation with the Government from

time to time, determine.

(iii) The examination shall be conducted by the

Appointing Authority through Selection Committee in

accordance with orders issued, from time to time.

(2) Direct Recruitment by Selection:-

(i) The selection of the candidates to the service shall be

held at such intervals as may be determined by the

Appointing Authority.

(ii) The selection of candidates shall be done by the

Selection Committee based on interview.

(iii) Selection Committee shall be constituted by the

Appointing Authority at appropriate time intervals.

(3) At the time of recruitment in the service the provision of

the Chhattisgarh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan

Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan)

Adhiniyam, 1994(No. 21 of 1994) and the directions issued

under this Act by the General Administration Department of

the Government, from time to time, shall be applicable.

(4) In filling the vacancies so reserved, candidates who are

members of the Scheduled Castes, Scheduled Tribes and

Other Backward Classes shall be considered for appointment

in the order in which their names appear in the list referred to

in rule 12 irrespective of their relative rank as compared with

other candidates.

(5) Those candidates belonging to the Scheduled Castes,

Scheduled Tribes and Other Backward Classes (Non-creamy-

layer) who are declared eligible for appointment by the

Appointing Authority keeping in view of their administrative

efficiency, may be appointed to the vacancies reserved for the

candidate of the Scheduled Castes, Scheduled Tribes and

Other Backward Classes (Non-creamy-layer) as per sub-rule

(3) as the case may be.

(6) There shall be 30% posts reserved for women candidates,

in accordance with the provision of Chhattisgarh Civil

Services (Special Provision for Appointment of Women)

Rules, 1997. The reservation shall be Horizontal and

Compartment-wise.

(7) In such cases, where certain experience period has been

prescribed as an essential condition for the post to be filled by

direct recruitment and it is found in the opinion of the

Appointing Authority that there is a possibility of candidate

belonging to the Schedule Castes, Scheduled Tribes and

Other Backward Classes (Non-creamy-layer) may not be

available in sufficient number, the Appointing Authority may

relax the condition of experience in respect of the candidates

of Scheduled Castes, Scheduled Tribes and Other Backward

Classes (Non-creamy-layer).

(8) In addition to the above, posts for persons with disability

and ex-servicemen shall be reserved in accordance with the

direction issued by the Government, from time to time."

18. The learned Single Judge held that the advertisement issued was

in accordance with the Rules of 2015. With regard to question as to

whether the selection committee could have deviated from the conditions

stipulated in the advertisement or could have taken a decision contrary to

the Rules, observed at paragraphs 17, 18 and 19, as under:

"17. It would be relevant to take note of Rules 6.5, which

has been relied upon by the State, on the basis of which it

is claimed by the State that the Selection Committee had

deviated from the procedure which was otherwise

prescribed under the advertisement. However, on going

through clause 5 of Rules 6, it would clearly reflect that the

Selection Committee in-fact has been authorized to lay

down on its own eligibility criteria, the conditions and

procedures for recruitment.

18. However, the said decision which has been conferred

upon by the said Selection Committee, has to be taken

before the recruitment process begins. Further

requirement of clause 5 of Rule 6 is also that the deviation,

if any, must also have the approval of the government

before introducing the same. Both these factors are

missing in the present facts of the case. In as much as the

Selection Committee took a decision to deviate from the

procedure otherwise laid down after the procedure in

terms of the advertisement was concluded. Secondly, the

deviation and the decision to deviate didn't have the

approval of the Government.

19. In view of the same, this Court has no hesitation in

reaching to the conclusion that it is a clear case where the

respondents more particularly, the Selection Committee

has changed the rules of the game after the game has

begun."

19. Reliance was placed by the learned Single Judge on paragraphs

32, 33 and 36 in the case of K. Manjusree v. State of Andhra Pradesh,

reported in (2008) 3 SCC 512 and on paragraphs 24, 25, 27, 28 and 29 in

the case of Mohd. Sohrab Khan v. Aligarh Muslim University, reported

in (2009) 4 SCC 555, to hold that when the rules of the game has been

prescribed and the recruitment process has also commenced, the

respondents cannot be permitted to deviate from the said rules and

procedure prescribed.

20. The learned Single Judge distinguished Ashok Kumar & Another

v. State of Bihar & Others, reported in (2017) 4 SCC 357, which was

pressed into service by the intervenors/appellants herein, holding that the

petitioner had raised objection with regard to procedure being changed by

the selection committee at the first instance, whereas, in the case of

Ashok Kumar (supra), the candidates had not challenged the selection

process at the first instance. Accordingly, the learned Single Judge, at

paragraph 24 observed as follows:

"24. Since this Court finds that the deviation from the

conditions stipulated to the advertisement, is contrary to the

judgment of the Hon'ble Supreme Court in the case of

Mohd. Sohrab Khan (supra) and as also in the case of K.

Manjusree (supra), the writ petition to that extent deserves

to be allowed and is ordered accordingly, the selection

process initiated by the respondents so far as holding of the

Aptitude Test and the results published thereafter is held to

be bad-in-law and is therefore set aside/quashed so far as

the recruitment process for the post of Ward Boy / Aaya. The

respondents are further directed to proceed further with the

recruitment process based upon the results published in the

written examination held on 10.12.2017. The result of which

was published on 21.01.2018 and the recruitment process

be finalized on the basis of the merits from the said results.

The writ petition thus stands allowed and the interim order

passed earlier would stand merged with the final order

passed today i.e. 19.04.2022."

21. In Rajesh Kumar Gupta (supra), the Hon'ble Supreme Court had

approved the reasoning assigned by the Allahabad High Court while

overruling the objection regarding maintainability of the writ petitions by

taking a view that there was no question of estoppel as the candidates

had no occasion to protest the change of criterion for the merit list by the

State Government from the State level to District level.

22. In Ramjit Singh Kardam (supra), the Hon'ble Supreme Court

observed that when no criteria on the basis of which the candidates are

going to be subjected for selection process were published and the

candidates participated in the selection without knowing the selection

criteria, they cannot be shut out from challenging the process of selection

when ultimately they came to know that the Commission step-by-step

diluted the merit in selection. At paragraph 41, the Hon'ble Supreme Court

held as follows:

"41. The Division Bench of the High Court is right in its

conclusion that the selection criteria, which saw the light

of the day along with declaration of the selection result

could be assailed by the unsuccessful candidates only

after it was published. Similarly, selection process which

was notified was never followed and the selection criteria

which was followed was never notified till the declaration

of final result, hence, the writ petitioners cannot be

estopped from challenging the selection. We, thus, hold

that the writ petitions filed by the petitioners could not

have been thrown on the ground of estoppel and the writ

petitioners could very well challenge the criteria of

selection applied by the Commission, which was

declared by the Commission only at the time of

declaration of the final result. We, thus, answer point

Nos. 1 and 2 as follows:-

(i) The writ petitioners, who had participated in the

selection are not estopped from challenging the selection

in the facts of the present case.

(ii) The writ petitioners could have very well challenged

the criteria of selection, which was declared by the

Commission only in the final result declared on

10.04.2010."

23. In Krishna Rai (supra), an advertisement/notification was issued

laying down the eligibility conditions as per Para 6.4 of the Manual, which

did not provide for any interview. But later on, 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 Para 6.4 laying down the eligibility

conditions, introduced interview and also laid down the criteria for

preparing the merit list out of total of 100 marks, with certain break-ups.

The Hon'ble Supreme Court, at paragraphs 19, 20 and 21 observed as

follows:

"19. 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.

20. 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

object as culled out from the aforesaid eligibility

procedure was that, seniority subject to qualifying the

written test would be the criteria for promotion.

21. 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 also be promoted subject to the rider that

they would have to qualify the type test within two years

from his joining."

24. The Division Bench of the High Court had set aside the order

of the learned Single Judge only on the ground that the writ petitioners

had appeared in the interview and being unsuccessful, had proceeded to

challenge the same. In the facts and circumstances of the case, the

Hon'ble Supreme Court in Krishna Rai (supra) set aside the order of the

Division Bench of the High Court holding that the Manual duly approved

by the Executive Council will prevail over any such principle of estoppel or

acquiescence.

25. The decision of the Calcutta High Court in M/s. Mannan Travels

Transport Contractor & Others (supra), relates to award of contract. An

objection was raised by the appellant regarding eligibility of the private

respondent (ultimate successful tenderer). As no decision was

communicated on the said objection and the private respondent (ultimate

successful tender) was also called to participate in the fourth stage of the

tender process, in that circumstance the Calcutta High Court had

observed that the objection of the appellant must be presumed to have

been rejected and that as the appellants had participated at the time of

opening of the fourth part i.e. price bid, it was held that the appellant

would be presumed to have waived the objection.

26. In the instant case, the objection was raised by the petitioner on

29.01.2018 and the test was conducted on 04.02.2018. Though Mr. Pillai

contends that as he had appeared in the test, it could be presumed that

he had waived his objection, given the time-gap of 5 days, the contention

has no merit. Though the writ petition was filed after declaration of result

pursuant to skill test conducted, such skill test itself having been

conducted without approval of the Government in violation of Rule 6(5) of

the Rules of 2015, and that too after declaration of result of written test,

which was the mode notified in the advertisement, we are of the opinion

that no interference is called for with the judgment and order of the

learned Single Judge.

27. Resultantly, the writ appeals are dismissed.

28. No costs.

                     Sd/-                                          Sd/-
             (Arup Kumar Goswami)                            (Sanjay Agrawal)
               CHIEF JUSTICE                                    JUDGE




Amit