NUTAN KUMARIversusB.R.A. BIHAR UNIVERSITY AND OTHERS

                 [2023] 14 S.C.R. 699 : 2023 INSC 966



                            CASE DETAILS

                           NUTAN KUMARI
                                     v.
            B.R.A. BIHAR UNIVERSITY AND OTHERS
                 (Civil Appeal Nos. 6232-6236 of 2013)
                          OCTOBER 12, 2023
    [HIMA KOHLI AND AHSANUDDIN AMANULLAH, JJ.]

                             HEADNOTES

      Issue for consideration: Whether the Division Bench of the High
Court was justified in allowing the appeals filed by the Physical Training
Instructors-PTIs in four different colleges under the University and quashing
the order of termination of services of the PTIs passed by the Single Judge
of the High Court.
      Service law – Selection process adopted by the Selection Committee
– Challenged to – Invitation of applications by the University for
appointment of Physical Training Instructors-PTIs in four of its
constituent colleges – Applications submitted by the appellant and
the private respondents, thereafter called for interviews – Selection
Committee conducted four different sets of interviews for each candidate
applying to four colleges, on the same day – Good variation in the
marks assigned to the candidates in the interview – Selection of the
private respondents – Single Judge of the High Court holding that the
selection as flawed and arbitrary, terminated the services of the private
respondents – However, the Division Bench of the High Court quashed
the order of termination – Correctness:
      Held: Once an advertisement has been issued and the selection criteria
prescribed, there is little scope for relaxing the norms, more so, by the
Selection Committee unless and until it can be adequately demonstrated that
it had the power to do so – Finding of the Single Judge of the High Court
that the entire process adopted by the Selection Committee was arbitrary,
irrational, and is liable to be set aside, is concurred with – Criteria fixed
                                    699
700           SUPREME COURT REPORTS                          [2023] 14 S.C.R.


by the Selection Committee was neither revealed in the advertisement, nor
disclosed to the candidates prior to or even at the time of conducting the
interviews – Selection Committee on its own fixed a total of 100 marks and
assigned different marks for different academic qualifications, 30 per cent
of the total marks was fixed for interview, on the day of the interview itself
– Instead of conducting a single interview for each candidate particularly,
since all of them had applied and submitted separate applications for seeking
appointment in the four constituent colleges under the University, the
Selection Committee conducted four sets of interviews in respect of each of
the candidates who had applied for appointment in different colleges – Close
look at the marks assigned in the interviews showed the erratic assessment
made by the Members of the Selection Committee – Thus, the impugned
judgment cannot be sustained and is quashed and set aside – Judgment of
the Single Judge is restored – Appointment orders in respect of the private
respondents are quashed and set aside. [Para 13, 14, 15, 18]
   Service jurisprudence – Selection Process – Power of Selection
Committee:
      Held: Selection process is bound by the terms and conditions of an
advertisement inviting applications from eligible candidates – Unless it
can be demonstrated that an advertisement has been issued contrary to any
Statute or the applicable rules, it is binding on all the participants – Even the
Selection Committee does not have the jurisdiction to lay down a separate
yardstick or basis for selection as that would be tantamount to legislating
rules of selection – Once the process of selection commences, the criteria
prescribed in the advertisement for conducting the selection of the eligible
candidates cannot be altered – Once an advertisement has been issued and
the selection criteria prescribed, there is little scope for relaxing the norms,
more so, by the Selection Committee unless and until it can be adequately
demonstrated that it had the power to do so – If the selection criteria is
tinkered with in midstream, a party can have a legitimate grievance. [Para
10, 10.4]
      Service jurisprudence – Appointment/selection – Vested right of
selection:
     Held: Merely by applying for a post pursuant to an advertisement, a
candidate does not automatically acquire any vested right of selection – He
         NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY                           701


only acquires a right for being considered for selection strictly in accordance
with the extant rules. [Para 10.3]

      LISTS OF CITATIONS AND OTHER REFERENCES

      Dr. Krushna Chandra Sahu and Others v. State of Orissa and Others
(1995) 6 SCC 1: [1995] 3 Suppl. SCR 419; Sant Ram Sharma v. State of
Rajasthan AIR (1967) SC 1910: [1968] 1 SCR 111; B.S. Yadav and Others
v. State of Haryana and Others (1980) Supp. SCC 524; P.K. Ramachandra
Iyer and Others v. Union of India and Others (1984) 2 SCC 141: [1984] 2
SCR 200; Umesh Chandra Shukla v. Union of India and Others (1985) 3
SCC 721: [1985] 2 Suppl. SCR 367; Durgacharan Misra v. State of Orissa
(1987) 4 SCC 646: [1987] 3 SCR 1097; Bedanga Talukdar v. Saifudaullah
Khan and Others (2011) 12 SCC 85: [2011] 11 SCR 635; Krishna Rai and
Others v. Banaras Hindu University and Others (2022) 8 SCC 713: [2022]
8 SCC 713; N.T. Devin Katti and Others v. Karnataka Public Service
Commission and Others (1990) 3 SCC 157; Sureshkumar Lalitkumar Patel
v. State of Gujarat 2023 SCC OnLine SC 167; Secretary, A.P. Public Service
Commission and B. Swapna and Others (2005) 4 SCC 154: [2005] 2 SCR
991; Mahendran v. State of Karnataka (1990) 1 SCC 411: [1989] 2 Suppl.
SCR 385; Gopal Krushna Rath v. M.A.A. Baig (1999) 1 SCC 544: [1999] 1
SCC 544; Ramachandra Iyer v. Union of India (1984) 2 SCC 141: [1984]
2 SCR 200 - referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.6232-6236
of 2013.
     From the Judgment and Order dated 16.05.2011 of the High Court of
Patna in LPA Nos.408, 482, 593, 713 and 751 of 2011.
     Appearances:
     T. V. George, Pankaj Bisht, Vijay Rawat, Drone Sharma, Shaji
Sebestian, Sanatan Ghosh, Advs. for the Appellant.
     Prem Sunder Jha, Anandh K., Ms. Shruti Gopal Iyer, Advs. for the
respondents.
702             SUPREME COURT REPORTS                              [2023] 14 S.C.R.



         JUDGMENT / ORDER OF THE SUPREME COURT
                                       ORDER

      1. The appellant1 is aggrieved by the judgment dated 16th May, 2011,
passed by the Division Bench of the High Court of Patna whereunder the
appeals2 filed by the respondents No. 5 to 8 herein working as Physical
Training Instructors3 in four different colleges under the respondent No.1-
University were allowed and the judgment of the learned Single Judge
dated 10th February, 2011 passed in CWJC No. 14680 of 2020 filed by the
appellant terminating their services was quashed. It was further clarified
that if the respondent No.1 – University, including the Chancellor were so
inclined, they would be entitled to proceed afresh with the inquiry directed
to be conducted in the matter after due notice to the private respondents
herein.
       2. We may first take note of some relevant facts of the case.
      2.1. An advertisement was issued by the respondent No.1-University
on 13th July, 2008, inviting applications for appointment of PTIs in four of
its constituent colleges. The said advertisement laid down three specific
conditions which are as follows: -
       (a)    Each candidate would separately apply for the post of PTI in
              respect of each college.
       (b)    The eligibility criteria for applying for the subject post was
              possession of a Bachelor’s degree in Physical Education
              or Graduation with Diploma in Physical Education from a
              recognized institution.
       (c)    The age limit for all the posts was prescribed to be as per the
              Government rules/orders.
     2.2. Pursuant to the aforesaid advertisement, the appellant and the
private respondents submitted their applications along with several other


1     Parties have been described in the manner in which they have been arrayed in Civil
      Appeal No. 6232/2013.
2     Letter Patent Appeals No. 408/2011, 482/2011, 593/2011, 713/2011 and 751/2011
3     For short ‘PTI’
         NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY                            703


applicants. All the parties submitted separate applications in respect of each
of the four colleges.
    2.3. It is not in dispute that the appellant and the private respondents
No.5 to 8 were found eligible and were called for an interview. For
conducting the interview, the respondent No.1 - University constituted a
five Members’ Selection Committee4.
      2.4. The Selection Committee met on 6th November, 2008 and
interviewed the applicants. The Committee conducted four different sets
of interviews for each candidate in respect of the applications submitted by
them for four colleges in question. Thereafter, a merit list was prepared. A
perusal of the said merit list reveals that though all the parties in the present
proceedings were interviewed by the Selection Committee for the posts
available in the four colleges on the same day but at four different times,
there was a great variation in the marks assigned to the appellant and the
respondents No.5 to 8 during the interview. This aspect was particularly
noticed by the learned Single Judge, who observed as follows: -
     “At this stage, I may notice one thing that stands out in the tabulation
     of the merit list. As noted above, all the five writ petitioners were
     interviewed for all the four Colleges by the same Committee of five
     persons allegedly four times on the same day. All other marks with
     regard to academic qualifications and marks for higher qualifications
     and experience were the same in all the four charts but the marks
     given in interview (viva) varied drastically. For example, petitioner,
     Nutan Kumari in one interview was awarded 24 marks out of 30 in
     another 16 out of 30 in the third 12 out of 30 and in the 4th 20 out
     of 30. Such erratic variation is there in all the four merit lists where
     someone scores less in one and more in another. University is not able
     to give any justification for these markings. Details of other markings
     will be discussed at appropriate stage. Upon tabulation of results on
     14th February, 2009 University issued appointment letters in favour of
     the four writ petitioners leaving aside Nutan Kumari. Apparently, the
     four selected petitioners gave their joining immediately in February,



4   Vide office order dated 27th October, 2008
704            SUPREME COURT REPORTS                        [2023] 14 S.C.R.


       2009 itself. Thereafter, pursuant to the orders of the Vice-Chancellor,
       by office order dated 13.05.2009, the Registrar of the University fixed
       their pay scale at Rs.5000-150-8000.”
      2.5. As is evident from the aforesaid observations, the appellant was
interviewed four times by the same Selection Committee on the very same
day and each time, the marks assigned to her varied from 12 to 16 to 20 to
24 (out of a total of 30 marks).
     2.6. In February, 2009, the four selected candidates, i.e., respondents
No.5 to 8 herein, gave in their joining report and pursuant to the orders
passed by the Vice-Chancellor of the respondent No.1 - University, their
pay scales were fixed vide order dated 13th May, 2009.
      2.7. It transpires from the records that immediately thereafter,
complaints were received by the Chancellor of the University of Bihar in
respect of the aforesaid selection process and vide order dated 18th June,
2009, a three Members’ Committee (Inquiry Committee) was appointed
to inquire into the selection process adopted in respect of the PTIs by the
respondent No.1 - University.
      2.8. The appellant herein also lodged a protest with the Chancellor as to
the manner in which the Selection Committee had conducted the interviews.
The Inquiry Committee submitted a report to the Chancellor of the respondent
No.1 - University on 7th October, 2009, recommending cancellation of the
appointments made and for action to be taken against the Vice Chancellor
and the Registrar of the University. On receiving the said Inquiry report, the
Chancellor directed cancellation of the appointments made to the post of
PTIs and further directed the respondent No.1 - University to take necessary
action in terms of the communication dated 5th January, 2010.
      2.9. As a result, respondent No.1 - University issued a separate
letter dated 15th February, 2010 to the respondents No.5 to 8, who were
selected to the subject post calling upon them to show cause as to why their
appointments should not be cancelled. The said notice was challenged by
the respondents No.5 to 8, who filed separate writ petitions5 before the High


5     CWJC No. 3580 of 2010, CWJC No. 3611 of 2010, CWJC No. 3713 of 2010 and
      CWJC No. 3724 of 2010
         NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY                                705


Court that came to be decided by the common judgment and order dated
10th February, 2011, passed by the learned Single Judge.
      3. Pertinently, before notices to show cause were issued to respondents
No.5 to 8, the appellant herein filed a separate writ petition6 challenging the
selection of the respondents No.5 to 8. Afterwards, all the petitions filed by
the appellant and respondents No.5 to 8 were taken up together and decided
by the learned Single Judge vide common judgment and order dated 10 th
February, 2011. The writ petition filed by the appellant was allowed and those
filed by the respondents No.5 to 8 were dismissed. The recommendations
made by the Chancellor of the University were accepted.
      4. Aggrieved by the aforesaid decision, respondents No.5 to 8
preferred intra court appeals7 before the Division Bench. By the impugned
judgement, the Division Bench has set aside the well-reasoned order passed
by the learned Single Judge and held that merely because there were some
variations in the marks obtained by various candidates in the four different
interviews conducted by the Selection Committee would alone not indicate
with certainty that the selection process was grossly vitiated for requiring
interference. The Division Bench frowned upon the learned Single Judge
for having gone into the said issue and observed that all the candidates had
been subjected to the same yardstick and therefore, no discrimination could
be alleged. As a result, the writ petition4 filed by the appellant, which was
allowed by the learned Single Judge, was dismissed as meritless.
      5. As far as the respondents No.5 to 8 were concerned (appellants
before the Division Bench), it was observed that since no notice was
issued to the said respondents at the stage of the inquiry ordered by the
Chancellor, respondent No.1 – University, their termination was bad in law
and in violation of the principles of natural justice. Resultantly, the orders
terminating the services of the private respondents, including the directions
issued by the Chancellor, were quashed and set aside with liberty granted
to the authorities to proceed afresh with the inquiry after due notice to the
respondents.



6   CWJC No. 14680 of 2009
7   Letter Patent Appeals No. 482/2011, 408/2011, 593/2011, 713/2011 and 751/2011
706          SUPREME COURT REPORTS                          [2023] 14 S.C.R.


      6. It is the aforesaid judgment that has brought the appellant before
this Court. Learned counsel for the appellant has primarily argued that
there was no good reason for the Division Bench to have interfered in a
well-reasoned and analyzed judgment passed by the learned Single Judge
where all aspects were carefully considered on merits before returning the
findings. It is submitted that the Division Bench has completely ignored the
fact that there were drastic variations in the marks assigned to the appellant
in the interview which cannot be termed as “some variation” as sought to be
described in the impugned judgment. While in one interview, the appellant
had scored 24 marks out of 30 marks, on the same day, the same Selection
Committee on conducting another interview of the appellant assigned her
12 marks out of 30 marks, thus materially affecting the outcome of the
selection process.
       7. It is next submitted by learned counsel for the appellant that the
respondent No.6 herein, Shri Chandrama Singh, who was selected and
appointed as a PTI in a women’s college (M.S.K.B. College, Muzaffarpur),
was over-aged and therefore, ineligible to have even applied for the subject
post. Learned counsel submits that the respondent No.6 was born on 3rd
April,1971; the advertisement in question was published on 13 th July, 2008
and the last date of receipt of the applications was 5th August, 2008. As on
3rd April, 2007, the respondent No.6 had already completed 37 years of age
and therefore, he was clearly over age on the date of the advertisement itself,
i.e., on 13th July, 2008. This aspect was duly noted by the learned Single
Judge and the submission made by the appellant was upheld but the Division
Bench did not discuss the said issue at all in the impugned judgment.
     8. On the aforesaid aspect, Dr. Adish C. Aggarwala, learned Senior
Advocate appearing for the respondent No.6 seeks to place reliance on a
document filed by the appellant with the appeal paper book and marked as
“Annexure-P4” which is a typed copy of the file notings of the respondent
No.1 - University wherein, it has been recorded by the Registrar that for
the purposes of calculating the eligibility with respect to the age of the
candidates, it was decided that the age shall be counted as on 1st January,
2008 since the advertisement process was commenced in the said year.
The said recommendation made by the Registrar was duly approved by the
Vice-Chancellor on the same day.
         NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY                             707


      9. We have perused the records and given our thoughtful consideration
to the arguments advanced by both sides.
       10. It has been time and again held in judicial verdicts that the selection
process is bound by the terms and conditions of an advertisement inviting
applications from eligible candidates. Unless it can be demonstrated that an
advertisement has been issued contrary to any Statute or the applicable rules,
it is binding on all the participants to the point that not even the Selection
Committee has the jurisdiction to lay down a separate yardstick or basis
for selection as that would be tantamount to legislating rules of selection.
It is equally well settled that once the process of selection commences, the
criteria prescribed in the advertisement for conducting the selection of the
eligible candidates cannot be altered. There is sound logic behind the same
which is that if the selection criteria is tinkered with in midstream, say for
example by lowering the standards, a party can have a legitimate grievance
that had it known that the criteria would be reduced subsequently, it too
could have applied for the said post.
     10.1. To elucidate the point above, we may usefully refer to the decision
in Dr. Krushna Chandra Sahu and Others v. State of Orissa and Others8
where it has been held thus :
      “31. Now, power to make rules regulating the conditions of service of
      persons appointed on Government posts is available to 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 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 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
      Sharma v. State of Rajasthan [AIR 1967 SC 1910 : (1968) 1 SCR
      111 : (1968) 2 LLJ 830] .)



8   (1995) 6 SCC 1
708            SUPREME COURT REPORTS                         [2023] 14 S.C.R.


       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 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, 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……”
                                                           [Emphasis added]
      (Also refer : B.S. Yadav and Others v. State of Haryana and Others9;
P.K. Ramachandra Iyer and Others v. Union of India and Others10; Umesh
Chandra Shukla v. Union of India and Others11; and Durgacharan Misra
v. State of Orissa12)
      10.2. In Bedanga Talukdar v. Saifudaullah Khan and Others13, this
Court highlighted the fact that any power of relaxation of the stipulated
selection procedure ought to be mentioned in the advertisement in the
following words:-
       “29. We have considered the entire matter in detail. In our opinion, it
       is too well settled to need any further reiteration that all appointments
       to public office have to be made in conformity with Article 14 of the
       Constitution of India. In other words, there must be no arbitrariness
       resulting from any undue favour being shown to any candidate.
       Therefore, the selection process has to be conducted strictly in
       accordance with the stipulated selection procedure. Consequently,
       when a particular schedule is mentioned in an advertisement,
       the same has to be scrupulously maintained. There cannot be
       any relaxation in the terms and conditions of the advertisement


9     (1980) Supp. SCC 524
10    (1984) 2 SCC 141
11    (1985) 3 SCC 721
12    (1987) 4 SCC 646
13    (2011) 12 SCC 85
        NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY                             709


     unless such a power is specifically reserved. Such a power could
     be reserved in the relevant statutory rules. Even if power of
     relaxation is provided in the rules, it must still be mentioned in
     the advertisement. In the absence of such power in the rules, it
     could still be provided in the advertisement. However, the power
     of relaxation, if exercised, has to be given due publicity. This would
     be necessary to ensure that those candidates who become eligible
     due to the relaxation, are afforded an equal opportunity to apply and
     compete. Relaxation of any condition in advertisement without due
     publication would be contrary to the mandate of equality contained
     in Articles 14 and 16 of the Constitution of India.
     30. A perusal of the advertisement in this case will clearly show that
     there was no power of relaxation. In our opinion, the High Court
     committed an error in directing that the condition with regard to the
     submission of the disability certificate either along with the application
     form or before appearing in the preliminary examination could be
     relaxed in the case of Respondent 1. Such a course would not be
     permissible as it would violate the mandate of Articles 14 and 16 of
     the Constitution of India.”
                                                           [Emphasis added]
     (Also refer: Krishna Rai and Others v. Banaras Hindu University
     and Others14)
      10.3. It is also a part of settled service jurisprudence that merely by
applying for a post pursuant to an advertisement, a candidate does not
automatically acquire any vested right of selection. He only acquires a right
for being considered for selection strictly in accordance with the extant rules.
This Court has held in N.T. Devin Katti and Others v. Karnataka Public
Service Commission and Others15 as follows:
     “11. There is yet another aspect of the question. Where advertisement
     is issued inviting applications for direct recruitment to a category of
     posts, and the advertisement expressly states that selection shall be
     made in accordance with the existing rules or government orders,


14 (2022) 8 SCC 713
15 (1990) 3 SCC 157
710           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      and if it further indicates the extent of reservations in favour of
      various categories, the selection of candidates in such a case must
      be made in accordance with the then existing rules and government
      orders. Candidates who apply, and undergo written or viva voce test
      acquire vested right for being considered for selection in accordance
      with the terms and conditions contained in the advertisement, unless
      the advertisement itself indicates a contrary intention. Generally, a
      candidate has right to be considered in accordance with the terms
      and conditions set out in the advertisement as his right crystallizes
      on the date of publication of advertisement, however he has no
      absolute right in the matter. If the recruitment Rules are amended
      retrospectively during the pendency of selection, in that event selection
      must be held in accordance with the amended Rules. Whether the Rules
      have retrospective effect or not, primarily depends upon the language
      of the Rules and its construction to ascertain the legislative intent.
      The legislative intent is ascertained either by express provision or by
      necessary implication; if the amended Rules are not retrospective in
      nature the selection must be regulated in accordance with the rules and
      orders which were in force on the date of advertisement. Determination
      of this question largely depends on the facts of each case having
      regard to the terms and conditions set out in the advertisement and
      the relevant rules and orders. Lest there be any confusion, we would
      like to make it clear that a candidate on making application for
      a post pursuant to an advertisement does not acquire any vested
      right of selection, but if he is eligible and is otherwise qualified in
      accordance with the relevant rules and the terms contained in the
      advertisement, he does acquire a vested right of being considered
      for selection is accordance with the rules as they existed on the
      date of advertisement. He cannot be deprived of that limited right
      on the amendment of rules during the pendency of selection unless
      the amended rules are retrospective in nature.”
                                                          [Emphasis added]
       (Also refer : Sureshkumar Lalitkumar Patel v. State of Gujarat16)


16 2023 SCC OnLine SC 167
        NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY                            711


       10.4. Further, once an advertisement has been issued and the selection
criteria prescribed, there is little scope for relaxing the norms, more so, by
the Selection Committee unless and until it can be adequately demonstrated
that it had the power to do so. We may allude to a decision of this Court in
Secretary, A.P. Public Service Commission and B. Swapna and Others17
which highlights the adverse consequences of interfering with the criteria
of selection laid down under the rules in the following words:
     “14. The High Court has committed an error in holding that the
     amended rule was operative. As has been fairly conceded by learned
     counsel for Respondent 1 applicant it was the unamended rule which
     was applicable. Once a process of selection starts, the prescribed
     selection criteria cannot be changed. The logic behind the same is based
     on fair play. A person who did not apply because a certain criterion e.g.
     minimum percentage of marks can make a legitimate grievance, in case
     the same is lowered, that he could have applied because he possessed
     the said percentage. Rules regarding qualification for appointment if
     amended during continuance of the process of selection do not affect
     the same. That is because every statute or statutory rule is prospective
     unless it is expressly or by necessary implication made to have
     retrospective effect. Unless there are words in the statute or in the rules
     showing the intention to affect existing rights the rule must be held to
     be prospective. If the rule is expressed in a language which is fairly
     capable of either interpretation it ought to be considered as prospective
     only. (See P. Mahendran v. State of Karnataka [(1990) 1 SCC 411
     : 1990 SCC (L&S) 163 : (1990) 12 ATC 727] and Gopal Krushna
     Rath v. M.A.A. Baig [(1999) 1 SCC 544 : 1999 SCC (L&S) 325] .)
     15. Another aspect which this Court has highlighted is scope for
     relaxation of norms. Although the Court must look with respect
     upon the performance of duties by experts in the respective fields, it
     cannot abdicate its functions of ushering in a society based on rule
     of law. Once it is most satisfactorily established that the Selection
     Committee did not have the power to relax essential qualification,
     the entire process of selection so far as the selected candidate is


17 (2005) 4 SCC 154
712           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      concerned gets vitiated. In P.K. Ramachandra Iyer v. Union of
      India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] this Court held
      that once it is established that there is no power to relax essential
      qualification, the entire process of selection of the candidate was in
      contravention of the established norms prescribed by advertisement.
      The power to relax must be clearly spelt out and cannot otherwise be
      exercised.”
                                                           [Emphasis added]
     11. Coming back to the case in hand, the learned Single Judge has
scrupulously examined the records and the pleadings in the petitions and
made the following pertinent observations in respect of the selection process
adopted by the Selection Committee constituted by the respondent No.1 -
University :
             “There are three types of physical education qualification. The first
      is a three year physical education course after Intermediate resulting
      in degree of B.P.E. The second is a three year Graduation course in
      any subject after Intermediate plus one year physical education course
      conducted by University leading to B.P. Ed. Degree and the third is
      three year Graduation course in any subject after Intermediate and
      one year physical education diploma course conducted by School
      Examination Board leading to D.P. Ed. The selection committee on
      the date of interview evolved marking system for Graduation level
      which as noted above was as follows.
            For candidates with B.P.E and B.P. Ed. their marks scored in
      B.P.E and B.P. Ed. were only taken and in a graded manner. If they
      had scored more than 75% they were awarded 40 out of 40, if they
      scored 60-75% they were awarded 30 out of 40, if they had scored
      45-60% they were awarded 25 out of 40 and if they had scored below
      45% they were awarded 20 out of 40 but when it came to D.P. Ed.
      their marks scored were calculated differently. Their marks out of
      40 for Graduation was split into two of 20 marks each, 20 marks for
      their three years Graduation course and only 20 marks maximum for
      their physical education course. The result was that though petitioner,
      Nutan Kumari had 83.6% in D.P. Ed., she was awarded only 20 marks,
      whereas others who had scored lesser marks in physical education but
        NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY                           713


     had B.P.E. or B.P. Ed. were given higher marks on that basis ignoring
     their Graduation or other marks. For example, Ravi Shankar Kumar
     who had got 80% was given 40 marks, Mithilesh Kumar Mani who
     had scored 72.6% was given 30 marks, Chandrama Singh who had
     scored 55% was given 25 marks and Sanjay Kumar Singh scored 57%
     was given 25 marks.
           Then the challenge is to the marks on higher qualification and
     experience. It is submitted that the two are different criterion but
     the total marks combined has been fixed at 10 not disclosing any
     bifurcation or any criteria.
            Then is the marks for viva (interview), which is 30% of the total
     marks, as noted in the very beginning, the same set of five members on
     the same day interviewed the selected candidates four times, one time
     each for each College and gave drastically different marks. First, in this
     regard it is submitted that this shows the erratic irrational marking on
     subjective satisfaction, which interview marks being as high as 30%
     is irrational, especially, when it is showed that the difference between
     selection and non-selection was barely a few marks.”
     12. After carefully examining the entire records, the learned Single
Judge has made the following pertinent observations:-
           “Having considered the rival submissions, in my view, the
     hostile discrimination and arbitrariness is writ large on the face of
     the records. No one with any amount of reasonable certainty knew
     the selection procedure or the process. It stands undisputed that the
     criterion were laid down only on the date of interview even then it
     was not made known to people. This is a clear cut case of bad and
     wrong administrative action. There is absolutely no transparency
     and such process cannot be sanctified by the Court. On top of it to
     say that petitioner, Nutan Kumari had participated in the selection
     process and, as such, could not challenge it after appointments were
     made, would be travesty of justice. Anyone could have challenged
     the criteria if they were disclosed in the advertisement or before the
     interview or before the selection but all that was kept secret. That came
     to be known much later after appointments were made. That cannot
     estop Nutan Kumari from challenging what she did not know and what
714          SUPREME COURT REPORTS                        [2023] 14 S.C.R.


      was never made public. This objection by the University and the other
      petitioners cannot be sustained. In my view, the law is settled. If a
      person participates in selection process with his eyes open knowing
      the selection process then upon failure to get selected he cannot
      turn around and challenge the same. He would be deemed to have
      acquiescence to the same. That is not at all the case in the present
      as noted above. Nutan Kumari challenged the process even before
      the enquiry committee gave its report. The challenge cannot be
      said to be belated in any aspect of the matter. The criterion were
      not disclosed. It is only after the criterion were disclosed to some
      extent can it be said that a person was in a position to challenge.
      If that is kept in mind it would be seen that there was no unreasonable
      delay in the challenge at all. Moreover, the extent of arbitrariness in
      the selection process, as would be noticed, fully justifies in setting
      aside the selection process and the selection itself.
             Now, coming to the markings in respect of Graduation. As
      noted above, there are three types of physical education courses. One
      is a three year course after Intermediate and the other two being one
      year courses after three years Graduation in any subject. It matters
      little whether it is a one year Diploma course or one year degree
      course because under statute University alone can grant degree, the
      School Examination Board cannot and that is the only reason for this
      distinction. If classification had to be made, subject to it being
      reasonable, it could be between the three years physical education
      course and the one year physical education course but the moot
      point to be noted here is that in the advertisement all are treated
      similarly for eligibility with no preference. or distinctions. If the
      advertisement itself did not provide for any differentiation or
      different treatment then at the time of evaluation no new criteria
      could be laid down. The effect is evident from the marks sheet of
      petitioner, Nutan Kumari. She got 83.6% marks in D.P.Ed and in three
      years Graduation course she had got 48.8%. Thus, totally she was
      given 32 marks being 20 plus 12 respectively out of 40 marks. Ravi
      Shankar Kumar, had 80% either in B.P.E. or B.P.Ed. he was given 40
      marks out of 40. There are various instances, as noted earlier, to
      show the arbitrary results of this arbitrary criteria, which criteria,
           NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY                      715


     as noted above, was decided at the time of interview. When all
     applications had been scrutinized the assertion that these criterion
     were evolved to promote certain candidates cannot, thus, be said
     to be unfounded.
            Again, when we come to marks of higher qualifications and
     experience, no one has disclosed as to what was the criteria of
     awarding marks under this head. Again, it is left to the whims of
     the selection committee which cannot be countenanced. Again, we
     come to the case of marks for interview, the things are worst. The
     same set of five people on the same day interviewed all the five
     petitioners four times. for the same job and in each interview the
     marks drastically varied. These are subjective evaluation based on
     subjective satisfaction it is these marks which have made substantial
     difference, as noted above, the margin being very small. Apart from
     this, to this Court it appears that subjective marks cannot be, in the
     nature of appointment, as high as 30%. These two things coupled
     together make the process quite arbitrary and discriminatory. Thus, the
     process as a whole as adopted cannot be said to be valid in law. The
     process must thus be struck down and is struck down. Consequently,
     it is held that the selection was bad.”
                                                        [Emphasis added]
     13. As can be seen from the above, the learned Single Judge took
pains to scrutinize the entire process adopted by the Selection Committee
and returned a finding that the same was arbitrary, irrational and liable to
be set aside. We are in concurrence with the said findings returned by the
learned Single Judge.
      14. Keeping in mind the challenge laid by the appellant herein to the
selection process what emerges from the observations made by the learned
Single Judge is as follows:-
     (i)    That the Selection Committee proceeded to fix the criteria for
            assigning marks to the candidates on the date of conducting
            the interviews. The said criteria was neither revealed in the
            advertisement, nor disclosed to the candidates prior to or even
            at the time of conducting the interviews.
716           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      (ii) That though the advertisement only laid down the eligibility
           criteria by virtue of the qualifications prescribed for inviting
           applications from applicants, the Selection Committee on its
           own fixed a total of 100 marks and assigned different marks for
           different academic qualifications, i.e., 10 marks for matriculation,
           10 marks for intermediate and 40 marks for graduation.
      (iii) That the marks for the interview were fixed by the Selection
            Committee as 30 per cent of the total marks on the day of the
            interview itself. Instead of conducting a single interview for
            each candidate particularly, since all of them had applied and
            submitted separate applications for seeking appointment in the
            four constituent colleges under the respondent No.1 – University,
            the Committee decided to conduct four sets of interviews in
            respect of each of the candidates who had applied for appointment
            in different colleges. A close look at the marks assigned in the
            interviews showed the erratic assessment made by the Members
            of the Selection Committee.
     15. In view of the above facts and circumstances, the learned Single
Judge rightly concluded that the entire process adopted by the Selection
Committee was vitiated and could not withstand judicial scrutiny.
      16. As for the respondent No.6, besides the observations made above,
we may additionally note that the maximum age limit for appointment to
the subject post as prescribed by the State Government for General category
male candidates, which in the instant case all the private respondents before
the Court fall under, was 37 years and for the unreserved Category (Women)
was 40 years. In the counter affidavit filed by the respondent No.3, Registrar,
University of Bihar, it has been stated in paragraph 14 as follows:-
      “That in reply to paragraph 5(c) of ground it is stated that as contained
      in advertisement, the age limit for the post will be applicable as per
      Government Rule or Order. It is stated that the Government has
      provided the cut off date to be 1st of August, of the each year for
      determination of age.”
     17. In the light of the aforesaid categorical stand taken by the respondent
No.1 - University that the cut-off date for determining the age limit of the
         NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY                            717


applicants in terms of the applicable rules was to be taken as the first day of
August of each year, which in the present case would mean 1st August, 2008,
quite evidently, the respondent No.6 was not qualified for even applying for
the subject post, having crossed the maximum age prescribed for a general
category (Male) candidate, i.e., 37 years. In any event, the Government
Rule/ Order mentioned in the advertisement having been elaborated by the
respondent No.3 in the counter affidavit, any reliance sought to be placed
by the respondents No.5 to 8 on the internal file notings of the University
that too, much after the date of issuance of the advertisement (25th October,
2008 to 27th October, 2008), would not be of any consequence.
      18. As a result of the aforesaid discussion, we are of the opinion that the
impugned judgment cannot be sustained and the same is accordingly quashed
and set aside. The judgment of the learned Single Judge dated 10th February,
2011 is restored. As a sequitur to the aforesaid order, the appointment orders
in respect of the respondents No.5, 7 and 8 are quashed and set aside. It
is further held that the respondent No.6 being ineligible for applying to
the subject post, his application ought to have been rejected outright and
therefore, his appointment order is hereby quashed. This leaves us with
four posts of PTI’s in four constituent colleges under the respondent No.1
- University that are required to be filled up. For this purpose, it is deemed
appropriate to direct the University to constitute a Selection Committee,
which shall consider the candidature of the appellant and the respondents
No.5, 7 and 8. The Selection Committee shall conduct a single interview in
respect of the aforesaid candidates irrespective of the number of applications
that they may have been filed for the subject posts. While conducting the
interview, no separate marks shall be assigned for the different qualifications
possessed by the candidates inasmuch as the advertisement issued by the
respondent No.1 - University did not contain any such stipulation.
      19. A common merit list shall be prepared by the Selection Committee,
keeping in mind the qualifications of each of the aforesaid candidates as also
the marks allocated to them in the interview to be conducted. Thereafter,
a seniority list shall be drawn and the candidates shall be assigned to the
respective colleges, in accordance with the said list. The entire exercise
shall be completed within eight weeks from the date of constitution of the
Committee and the results shall be declared under intimation to the appellant
and the respondents No. 5, 7 and 8.
718            SUPREME COURT REPORTS                        [2023] 14 S.C.R.


      20. It is further directed that in view of the past history of the matter
where serious allegations were levelled against the Vice-Chancellor and the
Registrar of the respondent No.1 - University and the report submitted by
the Inquiry Committee constituted by the Vice-Chancellor has indicted the
aforesaid officers, we leave it to the discretion of the Chancellor to constitute
a Selection Committee in accordance with law within four weeks from the
date a copy of this order is placed before him.
      21. It is made clear that since no other candidate had approached the
High Court except for the appellant herein and the respondents No.5 to 8,
the selection process shall be confined to the said parties alone.
     22. The civil appeals are allowed and disposed of on the above terms.
There shall be no orders as to costs.


Headnotes prepared by:                                        Appeals disposed of.
Nidhi Jain