KRISHNA RAI (DEAD) THROUGH LRS & ORSversusBANARAS HINDU UNIVERSITY THROUGH REGISTRAR & ORS.

1104                       [2022]
                SUPREME COURT     7 S.C.R. 1104
                               REPORTS                        [2022] 7 S.C.R.


 A             KRISHNA RAI (DEAD) THROUGH LRs & ORS.
                                      v.
                 BANARAS HINDU UNIVERSITY THROUGH
                            REGISTRAR & ORS.
                    (Civil Appeal Nos. 4578-4580 of 2022)
 B
                                   JUNE 16, 2022
           [DINESH MAHESHWARI AND VIKRAM NATH, JJ.]
               Service law: Principle of estoppel and acquiescence whether
       would prevail over statutory service rules prescribing procedure
 C     for promotion of Class-IV employees to Class-II working in the
       Central University – Single Judge held that the statutory rules would
       prevail and must be strictly adhered to – However, Division Bench
       set aside the judgment of single judge and held that the appellants
       having appeared in the examination process as also the interview
 D     without any protest upon being unsuccessful could not have
       challenged the selection process – On appeal, held: As per the
       Manual, all Class-IV employees, who have put in five years’ service
       and 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/
 E     Hindi for a minimum speed of 30 words per minute – This type test
       was not mandatorily required to be qualified and even those eligible
       candidates, who could not qualify the type test, but were otherwise
       eligible having passed in the departmental test, would be allowed
       two years’ time after joining to qualify the typing test – The only test
 F     required for eligible candidates was to pass in the departmental
       test i.e. the test of simple English, Hindi and Arithmetic – However,
       Board of Examiners on their own changed the criteria and made it
       purely merit based by introducing an interview – There is neither
       any provision nor any other indication in the manual duly approved
       by the Executive Council for such merit list – Hence, Division bench
 G     fell in error in applying the principle of estoppel that the appellants
       having appeared in the interview and being unsuccessful proceeded
       to challenge the same – Appellants were class-IV employees working
       from 1977 onwards and expecting from them to have raised the
       objection at the stage of interview was too far-fetched and
       unreasonable – It is settled principle that principle of estoppel cannot
 H
                                        1104
  KRISHNA RAI (DEAD) THROUGH LRs & ORS. v. BANARAS HINDU                1105
          UNIVERSITY THROUGH REGISTRAR & ORS.


override the law – Therefore, the manual duly approved by the           A
Executive Council will prevail over any such principle of estoppel
or acquiescence.
      Allowing the appeals, the Court
       HELD: 1. As per para 6.4 of the Manual duly approved by
the Executive Council’s Resolution No.223 dated 2/3rd of                B
November, 1980, all Class-IV employees, who have put in five
years’ service and 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/Hindi for a minimum speed of 30 words per minute.       C
The note appended to such Clause of typing test mentions that if
an employee does not pass the typing test and is otherwise eligible
for promotion, he be promoted subject to the condition that he
passes the typing test within two years from the date of his
promotion failing which, he would be reverted. The note further
provided that for such employees the typing test would be held          D
twice a year. Para 6.4(ii)(b) provided that two papers of simple
English, Hindi and Arithmetic of one hour duration would be held.
[Para 14][1112-B-D]
      2. The net effect of the above eligibility and procedure
prescribed for promotion of Group D Class IV employees to the           E
cadre of Junior Clerk would be that (1) a type test would be held
with a minimum speed of 30 words per minute in Hindi/English.
This type test was not mandatorily required to be qualified and
even those eligible candidates, who could not qualify the type
test, but were otherwise eligible having passed in the                  F
departmental test, would be allowed two years’ time after joining
to qualify the typing test and for such candidates, typing test would
be held twice a year. The only test required for eligible candidates
was to pass in the departmental test i.e. the test of simple English,
Hindi and Arithmetic. [Paras 16 and 17][1112-F-G]
                                                                        G
      3. 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
                                                                        H
1106            SUPREME COURT REPORTS                      [2022] 7 S.C.R.


 A     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. 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. [Paras 18 and
 B
       19][1113-C-D]
             4. The Division Bench ought to have considered that the
       appellants were Class-IV employees working from 1977 onwards
       and expecting from them to have raised serious objection or
       protest at the stage of interview and understanding the principles
 C     of changing the Rules of the game, was too farfetched,
       unreasonable and unwarranted. It is settled principle that principle
       of estoppel cannot override the law. The manual duly approved
       by the Executive Council will prevail over any such principle of
       estoppel or acquiescence. [Paras 22 and 23][1114-C-E]
 D           Dr. Krushna Chandra Sahu and others v. State of Orissa
             and 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.
 E           Union of India and another v. N. Chandrashekharan
             and others JT 1998(1) SC 295 : [1998] 1 SCR
             419; Utkal University and others v. Dr. N.C. Sarangi
             and others JT 1999 (1) SC 101 : [ 1999] 1 SCR 19;
             Chandra Prakash Tiwari v. Shakuntala (2002) 6 SCC
 F           127 : [2002] 3 SCR 948; K.A. Nagmani v. Indian
             Airlines 2009 (5) SCC 515 : [2009] 5 SCR 89; Madan
             Lal and others v. State of Jammu and Kashmir and others
             1995(3) SCC 486 : [1995] 1 SCR 908 – held
             inapplicable.

 G                           Case Law Reference
       [1998] 1 SCR 419               relied on               Para 24
       [1999] 1 SCR 19                held inapplicable       Para 24
       [2002] 3 SCR 948               held inapplicable       Para 24
 H
     KRISHNA RAI (DEAD) THROUGH LRs & ORS. v. BANARAS HINDU                    1107
             UNIVERSITY THROUGH REGISTRAR & ORS.


[2009] 5 SCR 89                    held inapplicable         Para 24           A
[1995] 1 SCR 908                   held inapplicable         Para 24
[1995] 3 Suppl. SCR 419            relied on                 Para 30
[2015] 7 SCR 132                   held inapplicable         Para 31
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.4578-                    B
4580 of 2022.
       From the Judgment and Order dated 29.07.2016 of the High Court
of Judicature at Allahabad in Special Appeal Nos.24, 09 and 25 of 2012.
     Deepak Jain, Ms. Jaspreet Aulakh, K. B. Pradeep, Tanpreet Gulati,
                                                                               C
Georgey V. Mathew, Vaibhav Manu Srivastava, Advs. for the Appellants.
      S. R. Singh, Sr. Adv., T. V. George, Shish Pal Laler, Ghanshyam
Singh, Hitesh Kumar, Vedant Pardhan, Rajnish Kumar Jha, Advs. for
the 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.
       3. In these three Civil Appeals, this Court has been called upon to     E
decide whether principle of estoppel and acquiescence will prevail over
statutory service rules prescribing the procedure for promotion of Class-
IV employees to Class-III working in the Banaras Hindu University1,
Varanasi, a Central University. The learned Single Judge was of the
view that the statutory rules would prevail and must be strictly adhered       F
to, whereas, the Division Bench, although, agreeing with the reasoning
of the learned Single Judge that the procedure prescribed under the
rules was violated, still proceeded to set aside the judgment of the learned
Single Judge applying the principle of estoppel and acquiescence over
and above the eligibility conditions having statutory force laid down by
the statutory rules.                                                           G
       4. The learned Single Judge had allowed the writ petition filed by
the appellants and after setting aside the promotion of respondent Nos.3
to 16, had directed the BHU to carry out the exercise for promotion

1
    BHU                                                                        H
1108             SUPREME COURT REPORTS                            [2022] 7 S.C.R.


 A     afresh as per the law and the observations made in the said judgment.
       The Division Bench allowed the appeal, set aside the judgment of the
       learned Single Judge and dismissed the writ petition. Aggrieved by the
       same, the original writ petitioners are in appeal before this Court.
             5. Facts in brief are that for filling up 14 posts of Class-III (Junior
 B     Clerk Grade) by way of promotion, the University issued a Notification/
       Advertisement dated 17.12.2005 inviting applications from permanent
       Class-IV employees for promotion as Junior Clerk in the Pay-Scale of
       Rs.3050-4590. The eligibility prescribed in the aforesaid Notification reads
       as under:
 C           “Eligibility:
             All Class-IV employees, who have put in five years services
             and who have passed matriculation examination or equivalent
             will be eligible for appointment as Junior Clerk under 25%
             promotion quota.
 D           Such eligible candidates will be tested in:
             A typing test in English/Hindi for a minimum of 30 words per
             minutes; and after qualifying in the test.
             Note: If an employee does not passed the typing test and is
             otherwise eligible for promotion he/she be promoted subject
 E           to the condition that he/she passes the typing test within two
             years from the date of his/her promotion failing which he/she
             will be reverted.
             Provided further that for such employees, typing test be held
             at least twice a year.
 F           Two papers 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
 G     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
 H
   KRISHNA RAI (DEAD) THROUGH LRs & ORS. v. BANARAS HINDU                       1109
    UNIVERSITY THROUGH REGISTRAR & ORS. [VIKRAM NATH, J.]


list was prepared by the Board of Examiners appointed for making the            A
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.
                                                                                B
       7. Aggrieved, the appellants filed Writ Petition No.37741 of 2007;
Sri Krishna Rai and 33 others impleading the Banaras Hindu University
through its Registrar as respondent No.1, Vice-Chancellor, Banaras Hindu
University as respondent No.2, and the 14 selected candidates as
respondent nos.3 to 16. The petition was filed primarily on the ground
that the Advertisement/Notification, which was issued laying down the           C
eligibility conditions, as per paragraph 6.4 of the Manual did not provide
for any interview, but later on, changing the rules of the game and 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 paragraph
6.4 laying down the eligibility conditions introduced an interview. The         D
Board of Examiners further laid down the criteria for preparing the merit
list out of total of 100 marks, with the following break-up: 20 marks for
the type test, 60 marks for the written test of Hindi, English and Arithmetic
and 20 marks for the interview.
       8. In the counter-affidavit filed by the BHU as also by the
                                                                                E
respondent nos.3 to 16, the eligibility conditions as laid down in para 6.4
of the Manual and duly approved by the Executive Council, which is the
supreme Authority, was not disputed. Even during the course of the
arguments, learned counsel for the BHU agreed to the submission of
the appellants that the Board of Examiners had no authority to alter the
eligibility conditions or the procedure prescribed under para 6.4 of the        F
Manual. It is further undisputed that Board of Examiners was not vested
with 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 position
that it is only the Executive Council, which could have amended or
modified the procedure/eligibility prescribed under para 6.4 of the Manual.
                                                                                G
       9. The learned Single Judge after considering the entire material
on record and also the catena of decisions relied upon by the respondent-
BHU and the private respondents was of the view that the Board of
Examiners committed grave error in making selections by awarding marks
on the type test, written test and interview and then preparing the merit
list.                                                                           H
1110            SUPREME COURT REPORTS                          [2022] 7 S.C.R.


 A             10. The learned Single Judge allowed the writ petition. It quashed
       the orders impugned dated 05.06.2007 and 02.07.2007 as also the
       appointments of respondent Nos.3 to 16 on Class-III post and further
       directed BHU to hold fresh selections for promotion 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.
 B
       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.
 C
             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
 D           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
 E     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 reiterated
             what was contained in Clause 6.4 of the Manual. The rules
             of game were made known to everybody but Board of
 F           Examiners, which was constituted to hold selection strictly in
             accordance with aforesaid decided norms, changed the rules
             in between the game and held selection in a manner unknown
             to the extant Rules applicable for promotion from Class IV to
             Class III in BHU. This was wholly illegal and without
             jurisdiction. It is well settled that rules of games cannot be
 G           allowed to be changed during the game.
             54. This Court has no manner of doubt in the light of above
             discussion that petitioners have been discriminated and have
             been considered in a manner which was never contemplated
             by the University for considering promotion from Class IV to
 H           Class III.
   KRISHNA RAI (DEAD) THROUGH LRs & ORS. v. BANARAS HINDU                  1111
    UNIVERSITY THROUGH REGISTRAR & ORS. [VIKRAM NATH, J.]


       55. One more aspect also not be ignored. In making such             A
       promotions persons totally unequal to each other in various
       respects have to be considered. A Class IV employee who was
       appointed in 1977 has much longer experience of a Class IV
       post but in the context of personality and other aspects, he
       may not compare with his much junior entered in service as
       Class IV employee after 10, 20 or 25 years. The subsequent          B
       educational advancement also cannot be ignored. It is evident
       that persons who were appointed in 1977 to 1997, i.e.
       petitioners, got occasion for consideration for promotion to
       Class III post after decades of service. For such persons,
       making interview as a part of selection when it was not             C
       contemplated in the relevant procedure prescribed by the
       University obviously made it difficult for them to qualify since
       they may not compete with young and youngest new employees
       having better qualifications. But one must also have
       considered that they at the fag end of service to their credit,
       have long experience. Better honour and respect needed so           D
       that they may retire from a higher post after getting at least
       one promotion at the fag end of their service. The University
       must have all these facts and other relevant aspects in mind
       when laid down the procedure in the Manual, but
       unfortunately the Board of Examiners acted unmindful of             E
       wider aspects. The acted wholly illegally by ignoring the
       established procedure laid down in the Rules and on the
       contrary settled their own selection procedure by exceeding
       their authority and jurisdiction.”
       12. BHU as also the private respondent nos. 3 to 16 preferred
intra-court Appeals registered as Special Appeal No.24 of 2012 (Banaras    F
Hindu University and another Vs. Sri Krishna Rai and others), Special
Appeal No.9 of 2012 (Shri Sarvjit Singh and others Vs. Sri Krishna Rai
and others) and Special Appeal No.25 of 2012 (Ram Kishore Pandey
and others Vs. Banaras Hindu University and others). The Division Bench
vide judgment dated 29.07.2016 was of the view, as already stated above,   G
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.               H
1112             SUPREME COURT REPORTS                           [2022] 7 S.C.R.


 A           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
 B     Council’s Resolution No.223 dated 2/3rd of November, 1980, all Class-
       IV employees, who have put in five years’ service and 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/Hindi for a minimum speed of 30 words
       per minute. The note appended to such Clause of typing test mentions
 C     that if an employee does not pass the typing test and is otherwise eligible
       for promotion, he be promoted subject to the condition that he passes the
       typing test within two years from the date of his promotion failing which,
       he would be reverted. The note further provided that for such employees
       the typing test would be held twice a year. Para 6.4(ii)(b) provided that
 D     two papers of simple English, Hindi and Arithmetic of one hour duration
       would 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 of
       Group-D in-service employees and it further provided that the seniority
 E     list would be prepared after passing the departmental test and it further
       provided that no relaxation in prescribed qualification shall be given for
       in-service employees.
              16. The net effect of the above eligibility and procedure prescribed
       for promotion of Group-D Class-IV employees to the cadre of Junior
       Clerk would be that- (1) a type test would be held with a minimum speed
 F
       of 30 words per minute in Hindi/English. This type test was not
       mandatorily required to be qualified and even those eligible candidates,
       who could not qualify the type test, but were otherwise eligible having
       passed in the departmental test, would be allowed two years’ time after
       joining to qualify the typing test and for such candidates, typing test
 G     would be held twice a year.
              17. The only test required for eligible candidates was to pass in
       the 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 entitled
 H     to be placed in the seniority list for promotion. It further mandated that
   KRISHNA RAI (DEAD) THROUGH LRs & ORS. v. BANARAS HINDU                       1113
    UNIVERSITY THROUGH REGISTRAR & ORS. [VIKRAM NATH, J.]


even where eligible candidates had passed in the departmental written           A
test of simple English, Hindi and Arithmetic, but could not pass in the
typing test, would still be eligible for promotion and be placed in the
seniority list with a rider that he/she would 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
                                                                                B
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            C
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       D
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             E
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.
       20. The Board of Examiners on their own changed the criteria
and made it purely merit based by introducing an interview and also             F
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.
                                                                                G
      21. What we notice is that, the Division Bench approved the
reasoning of the learned Single Judge. The relevant extract of the
judgment of the Division Bench is reproduced below:
      “Learned Single Judge as already noted above has rightly
      proceeded to observe that interview was not at all subscribed
                                                                                H
1114             SUPREME COURT REPORTS                            [2022] 7 S.C.R.


 A            by the provisions holding the field. We are also of the same
              view that procedure prescribed ought to have been adhered
              to by the Board of Examiners. Board of Examiners on their
              own could not have changed the procedure already holding
              the field as laid down by the Executive Council.”
 B            22. However, the Division Bench fell in error in applying the
       principle of estoppel that the appellants having appeared in the interview
       and being unsuccessful proceeded to challenge the same and on that
       ground alone, allowed the appeals, set-aside the judgment of the learned
       Single Judge. The Division Bench having approved the reasoning of the
       learned Single Judge, ought not to have interfered in the judgment of the
 C     learned Single Judge on a technical plea. The Division Bench ought to
       have considered that the appellants were Class-IV employees working
       from 1977 onwards and expecting from them to have raised serious
       objection or protest at the stage of interview and understanding the
       principles of changing the Rules of the game, was too far-fetched,
 D     unreasonable and unwarranted.
              23. The case laws relied upon by the Division Bench would have
       no application in the facts of the present case as none of the judgments
       relied upon by the Division Bench laid down that principle of estoppel
       would be above law. It is settled principle that principle of estoppel cannot
 E     override the law. The manual duly approved by the Executive Council
       will 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. Chandrashekharan
              and others2.
 F            (2) Utkal University and others Vs. Dr. N.C. Sarangi and
              others 3.
              (3) Chandra Prakash Tiwari Vs. Shakuntala4 .
              (4) K.A. Nagmani Vs. Indian Airlines5.
              (5) Madan Lal and others Vs. State of Jammu and Kashmir
 G
              and others6.
       2
         JT 1998(1) SC 295
       3
         JT 1999 (1) SC 101.
       4
         2002 (6) SCC 127
       5
         2009 (5) SCC 515
       6
 H       1995(3) SCC 486
      KRISHNA RAI (DEAD) THROUGH LRs & ORS. v. BANARAS HINDU                    1115
       UNIVERSITY THROUGH REGISTRAR & ORS. [VIKRAM NATH, J.]


       25. In the case of Chandrashekharan (supra), the plea taken              A
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
                                                                                B
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.                                                  C
      27. In the case of Chandra Prakash Tiwari (supra), the
unsuccessful candidate did not find the result of the interview palatable
and 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 unsuccessful                 D
candidates were given equal opportunity and no violation of any statutory
rule was alleged, as such, this judgment would also have no application.
      29. In the case of Madan Lal (supra), again the objection taken
by the unsuccessful candidate was regarding the process of interview
                                                                                E
being unfair. This case also does not have any application to the facts of
the 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 others7,
it has been held that the suitability criteria is to be laid down by the rule   F
making authority and that the selection criteria cannot be laid down by
the Selection Board/Selection Committee unless specifically authorized.
In the present case, firstly, there was no authorization to the Board of
Examiners to lay down the selection criteria and further there was clear
violation of the suitability criteria laid down by the rule making authority.
Paragraph nos. 31, 32, 33, 34, 35 and 36 of the said judgment are               G
reproduced hereunder:
         “31. Now, power to make rules regulating the conditions of
         service of persons appointed on Govt. Posts is available to
7
    1995 (6) SCC 1                                                              H
1116      SUPREME COURT REPORTS                        [2022] 7 S.C.R.


 A     the Governor of the State under the Proviso to Article 309
       and it was in exercise of this power that the present rules
       were made. If the statutory Rules, in a given case, have not
       been made, either by the Parliament or the State Legislature,
       or, for that matter, by the Governor of the State, it would be
       open to the appropriate Government (the Central Government
 B
       under Article 73 and the State Government under Article 162)
       to issue executive instructions. However, if the Rules have
       been made but they are silent on any subject or point in issue,
       the omission can be supplied and the rules can be
       supplemented by executive instructions. (See: Sant Ram
 C     Sharma V. State of Rajasthan).
       32. In the instant case, the Government did neither issue any
       administrative instruction nor did it supply the omission with
       regard to the criteria on the basis of which suitability of the
       candidates was to be determined. The members of the
 D     Selection Board, 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,
 E
       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
 F     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
 G     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
 H     within the domain of the executive. It is not for judicial bodies
      KRISHNA RAI (DEAD) THROUGH LRs & ORS. v. BANARAS HINDU               1117
       UNIVERSITY THROUGH REGISTRAR & ORS. [VIKRAM NATH, J.]


         to sit in judgment over the wisdom of the executive in choosing   A
         the mode of recruitment of the categories from which the
         recruitment should be made as they are matters of policy
         decision falling exclusively within the purview of the
         executive.” (Emphasis supplied).
         34. The Selection Committee does not even have the inherent       B
         jurisdiction to lay down the norms for selection nor can such
         power be assumed by necessary implication. In P.K.
         Ramachandra lyer and Ors. v. Union of India and Ors. (SCC
         pp. 180-81 para 44) , it was observed :
                                                                           C
         “By necessary inference, there was no such power in the
         ASRB to add to the required qualifications. If such power is
         claimed, it has to be explicit and cannot be read by necessary
         implication for the obvious reasons that such deviation from
         the rules is likely to cause irreparable and irreversible
         harm”.                                                            D
         35. Similarly, in Umesh Chandra Shukla Etc. v. Union of India
         and Ors. it was observed that the Selection Committee does
         not possess any inherent power to lay down its own standards
         in addition to what is prescribed under the Rules. Both these
         decisions were followed in Durgacharan Misra v. State of          E
         Orissa and Ors and the limitation of the Selection Committee
         were pointed out that it had no jurisdiction to prescribe the
         minimum marks which a candidate had to secure at the viva-
         voce test.
                                                                           F
         36. It may be pointed out that rule making function under
         Article 309 is legislative and not executive as was laid down
         by this Court in B.S. Yadav and Ors. v. State of Haryana and
         Ors. For this reason also, the Selection Committee or the
         Selection Board cannot be held to have jurisdiction to lay
         down any standard or basis for selection as it would amount       G
         to legislating a rule of selection.”
    31. Further in the case of Tata Chemicals Ltd. Vs.
Commissioner of Customs (preventive), Jamnagar8, it has been
8
    2015 (11) SCC 628                                                      H
1118            SUPREME COURT REPORTS                          [2022] 7 S.C.R.


 A     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. Paragraph 18 of the said judgment is
       reproduced below:
 B           “18. The Tribunal’s judgment has proceeded on the basis that
             even though the samples were drawn contrary to law, the
             appellants would be estopped because their representative
             was present when the samples were drawn and they did not
             object immediately. This is a completely perverse finding both
 C           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
 D           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
 E           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.”
 F           32. For all the reasons recorded above, the appeals deserve to be
       allowed. They are, accordingly, allowed.
             33. 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.
 G
              34. We have been informed that some of the appellants have
       retired and a couple of them have also died, post retirement. Rest of
       them are still working. Since the examinations have already been held in
       the year 2006-07, all the appellants who are found to be eligible for
       promotion as per the existing rules and as directed by the learned Single
 H
   KRISHNA RAI (DEAD) THROUGH LRs & ORS. v. BANARAS HINDU                       1119
    UNIVERSITY THROUGH REGISTRAR & ORS. [VIKRAM NATH, J.]


Judge, would be extended all consequential benefits. Further, where the         A
appellants have died, the benefit would be extended to their legal heirs
entitled under law for the same.
       35. Pending application(s), if any, is/are disposed of.

                                                                                B
Devika Gujral                                                Appeals allowed.
(Assisted by : Shevali Monga, LCRA)




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