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CASE NO.: Appeal (civil)  1771 of 2008

PETITIONER: Dhananjay Malik & Ors

RESPONDENT: State of Uttaranchal & Ors

DATE OF JUDGMENT: 05/03/2008

BENCH: H.K. SEMA & MARKANDEY KATJU

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO 1771 OF 2008 (Arising out of S.L.P.( c ) N0 1466 of 2006) WITH CIVIL APPEAL NO.        1772  OF 2008 (Arising out of S.L.P ( C ) No. 2743 of 2006 AND CIVIL APPEAL NO.          1773          OF 2008 (Arising out of S.L.P ( C ) No.7989 of 2006)

H.K. SEMA,J

1.              Leave granted.

2.              These appeals are directed against the judgment  and order dated 16.12.2005 passed by the Division Bench of  the High Court of Uttaranchal at Nainital in Special Appeal  No.18 of 2004.   3.              Special Leave Petition (Civil) Nos.1466 and 2743 of  2006 have been filed by the selected candidates.  The High  Court by the impugned order set aside the entire selection and  appointments of Assistant Teachers (Physical Education) in  Garhwal Mandal.  According to the High Court, the selection  and appointments were made in violation of the Rules.  By an  interim order dated 27.1.2006 this Court stayed the operation  of the order of the High Court and, therefore, they are still  holding the posts, for which they have been selected. 4.              An advertisement was issued on 24.6.2002 for  Garhwal Region for the selection and appointment of the  Physical Education Teachers (L.T.Grade).  The requisite  qualification indicated in the advertisement is B.P.E. or  Graduate with Diploma in Physical Education.  The  unsuccessful candidates in the interview challenged the  selected candidates on various grounds.  One of the grounds  was that the advertisement and selection were not based in  accordance with the Rules called U.P. Subordinate  Educational (Trained Graduates Grade) Service Rules, 1983 (in  short the Rules). We will examine the Rules a little later.  The  unsuccessful writ petitions were dismissed by the Single  Judge.  On appeal by the unsuccessful candidates, the order  of the Single Judge was reversed and the appeals were  allowed.  Hence, these appeals by special leave. 5.              We have heard the parties.  6.              Before we proceed further we may point out at this  stage that the writ petitions were rightly dismissed by the  Single Judge and the Division Bench of the High Court fell in  error in entertaining the appeals.   

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7.              It is not disputed that the writ petitioners- respondents herein participated in the process of selection  knowing fully well that the educational qualification was  clearly indicated in the advertisement itself as B.P.E. or  graduate with diploma in physical education.  Having  unsuccessfully participated in the process of selection without  any demur they are estopped from challenging the selection  criterion inter alia that the advertisement and selection with  regard to requisite educational qualifications were contrary to  the Rules.     8.              In Madan Lal   vs.  State of J & K, (1995) 3 SCC  486, this Court pointed out that when the petitioners  appeared at the oral interview conducted by the Members  concerned of the Commission who interviewed the petitioners  as well as the contesting respondents concerned, the  petitioners took a chance to get themselves selected at the said  oral interview.  Therefore, 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 writ petitions.   This Court further pointed out  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  present case, as already pointed out, the writ petitioners- respondents herein participated in the selection process  without any demur; they are estopped from complaining that  the selection process was not in accordance with the Rules.   If  they think that the advertisement and selection process were  not in accordance with the Rules they could have challenged  the advertisement and selection process without participating  in the selection process.  This has not been done. 9.              In a recent judgment in the case of Marripati  Nagaraja   vs.  The Government of Andhra Pradesh, (2007)  11 SCR 506 at p.516 SCR this Court has succinctly held that  the appellants had appeared at the examination without any  demur.  They did not question the validity of fixing the said  date before the appropriate authority.  They are, therefore,  estopped and precluded from questioning the selection  process.  10.             We are of the view that the Division Bench of the  High Court could have dismissed the appeal on this score  alone as has been done by the learned Single Judge.   11.           The next question that arises for consideration is as  to whether the Government can, by way of administrative  instructions, fill up the gaps and supplement the rules and  issue instructions not inconsistent with the rules already  framed, if rules are silent on any particular point?  12.             The 1983 Rules prescribe the requisite educational  qualifications for the post of Assistant Teacher-physical  education as under:- "Graduation degree in Physical Education  or Diploma in the Physical Education  from any recognised Institution."

The aforesaid Rule has been clarified by the Government of  India, Ministry of Education, on 26.11.1965 to the effect that  B.P.E degree holders should be treated at par with those who  hold B.A./B.Sc., B.Com degree plus a diploma in physical  education and should not be required to possess an additional  B.A.,B.Sc/B.Com. degree for purposes of employment as  Directors of physical education or on other similar posts.   The  aforesaid position has been further clarified by the  Government in paragraph 12 of its counter affidavit that

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qualification of B.P.E. includes the graduation as well as  diploma of physical education. 13.             A Constitution Bench of this Court in the case of   Sant Ram Sharma   vs.  State of Rajasthan, AIR 1967 SC  1910, has pointed out at p.1914 SC that the Government  cannot amend or supersede statutory Rules by administrative  instructions, but if the rules are silent on any particular point  Government can fill up the gaps and supplement the rules and  issue instructions not inconsistent with the rules already  framed.   14.             The aforesaid ruling has been reiterated in  paragraph 9 of the judgment by a three Judge Bench of this  Court in the case of Union of India    vs.   K.P. Joseph,  (1973) 1 SCC 194, as under: "Generally speaking, an administrative Order  confers no justiciable right, but this rule, like  all other general rules, is subject to exceptions.   This Court has held in Sant Ram Sharma  v.   State of Rajasthan and Another, AIR 1967  SC 1910, that although Government cannot  supersede statutory rules by administrative  instructions, yet, if the rules framed under  Article 309 of the Constitution are silent on  any particular point, the Government can fill  up gaps and supplement the rules and issue  instructions not inconsistent with the rules  already framed and these instructions will  govern the conditions of service."  

15.             For the reasons aforestated, Civil Appeals arising  out of Special Leave Petition (Civil) Nos. 1466 and 2743 of  2006 filed by the successful candidates are allowed.  The  impugned judgment and order of the Division Bench of the  High Court is set aside.  No costs.              

CIVIL APPEAL ARISING OUT OF S.L.P ( C ) No.7989 of 2006                 16.             This appeal filed by the non-selected candidates is  dismissed.