Holding

The Court held that the selection process was arbitrary, the Chairman alone lacked authority to alter the criteria, the applicants were not estopped from challenging the process, and the Commission must complete the selection as per the original criteria, with a fresh selection permissible despite the PTI cadre's status under the 2012 rules.

Summary

The Supreme Court examined the selection of 1,983 Physical Training Instructor (PTI) posts by the Haryana Staff Selection Commission (HSSC). The Commission had initially announced a written test and interview criteria, later cancelled the written test and altered the short‑listing process without publishing new criteria, actions taken solely by the Chairman. Unsuccessful candidates challenged the arbitrariness of these changes, alleging that merit was downgraded and that the Chairman exceeded his authority. The Court held that the candidates were not estopped from challenging the process because they never knew the criteria, that the Chairman could not unilaterally alter the mode of selection of a multi‑member body, and that the changes were arbitrary and amounted to malice in law. Consequently, the Court modified the High Court’s order, directing the HSSC to complete the selection using the original criteria and to conduct a fresh selection for all applicants, without requiring a new advertisement. The Court also rejected the argument that the PTI cadre had become extinct under the 2012 service rules for the purpose of the pending selection.

Issues considered

The applicability of estoppel to candidates who participated in the selection without knowledge of the criteria.
Whether the candidates could challenge the selection criteria after participating in the process.
Whether the decisions to cancel the written examination, to shortlist eight times the vacancies, and to call all eligible candidates were arbitrary.
Whether decisions relating to mode of selection and criteria must be taken by the Commission as a multi‑member body, not by the Chairman alone.
Whether the decision dated 03.08.2008 fixing the selection criteria was genuinely taken by the Commission.
Whether allegations of malice in fact or malice in law can be made without specific allegations and impleading the accused officials.
Whether a fresh selection can be held for PTI posts given that the cadre is declared a dying cadre under the 2012 service rules.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309
Haryana School Education (Group C) State Cadre Service Rules, 2012s. Rule 2(h), s. Rule 9(1)(j), s. Rule 9(5)

Subjects

selection processestoppeladministrative lawmalice in lawHaryana Staff Selection CommissionPhysical Training Instructor recruitmentarbitrary decisionmeritconstitutional lawArticle 14Article 16Article 309

Judgment

1096 [2020]REPORTS
SUPREME COURT 7 S.C.R. 1096 [2020] 7 S.C.R.

A RAMJIT SINGH KARDAM & ORS.
v.
SANJEEV KUMAR & ORS.
(Civil Appeal No. 2103 of 2020)
B APRIL 08, 2020
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Service Law: Selection process – Criteria for selection –
Challenged by candidates – Rule of estoppel – Applicability of – It
is a general preposition that a candidate, who participates in a
C
selection without a demur taking a calculated chance to get selected
cannot turn around and challenge the criteria of selection and the
constitution of the selection committee – However, in the instant
case, Commission had not published any criteria on the basis of
which candidates were to be subjected for selection process and
D the candidates participated in the selection without knowing the
criteria of selection – In such situation, they cannot be shut out
from challenging the process of selection when ultimately they came
to know that Commission step by step had diluted the merit in
selection – Further when the written examination as notified earlier
was scrapped and every eligible candidate was called for interview
E
giving a go bye to a fair and reasonable process for shortlisting the
candidates for interview, that too only by Chairman of the
Commission whereas decision regarding criteria of selection was to
be taken by Commission, the candidates have every right to challenge
the entire selection process so conducted – Rule of estoppel.
F
Service Law: Selection process – Decision to cancel the
written examination and to call the candidates for interview eight
times number of vacancies on minimum percentage of marks as fixed
therein and a subsequent decision to call all the eligible candidates
for interview – Propriety of – Held: These decisions were arbitrary
G decision to change the selection criteria which have effect of
downgrading the merit in the selection – The present is a case where
change in criteria was affected and altered arbitrarily with the object
of down-grading and not up-grading the standards of selection.
Service Law: Haryana Staff Selection Commission – Selection
H for the post of PTI – Criteria for selection – Power vested in
1096
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1097

Commission to fix the criteria for selection – By notification dated A
28.07.1998, the Commission was empowered to devise the mode of
selection and fix the criteria for selection of post for which
requisition is sent to it by a Department or an office, as it may deem
appropriate – As per notification dated 21.06.2007, the Commission
is to consist of nine members including the Chairman – The selection
B
on various posts was to be conducted as per the criteria fixed by
the Commission – There are no separate statutory rules providing
for criteria for recruitment for different posts including the post of
PTI.
Service Law: Haryana Staff Selection Commission – Multi-
C
member body – Decisions taken by the Chairman – Binding effect –
Held: The statutory notifications when entrust the Commission to
devise the mode of selection and fix the criteria and the Commission
being multi-member body, Chairman alone was not competent to
alter the mode of selection and the criteria, which was fixed and
published for conducting the selection for the post of PTI – The D
Commission being a multi-member body, all decisions pertaining to
mode of selection and criteria was to be taken by the Commission
itself, there being no rules or resolution delegating the said power
to Chairman or any other member – The decision of not holding
written examination, decision to screen on the basis of eight times
E
of vacancies and percentage of marks and decision to call all
eligible candidates, were all decisions taken by the Chairman himself,
which decisions cannot be said to be decisions of the Commission.
Service Law – Selection process – Posts of PTI – Staff Selection
Commission, a multi-member body – Decision of Chairman of the
Commission to change selection process i.e. not to hold the written F
examination due to “administrative reasons” – As per the
advertisement for the selection of posts of PTI, the Commission had
published the criteria for selection on 28.12.2006 which was
implemented also– The decision for not holding the written
examination and steps taken consequent thereto were all arbitrary G
decisions, unsustainable in law – Power to device the mode of
selection and fix the criteria for selection was entrusted on the
Commission to further the object of selection on merit to fill up post
in State in consonance with the provisions of Arts.14 and 16 of the
Constitution of India – The Commission being recruiting body
H
1098 SUPREME COURT REPORTS [2020] 7 S.C.R.

A abdicated its obligation of screening out the best candidates – When
the alteration of criteria has been made, which has obviously
affected the merit selection, the allegations which have been made
in the writ petition against the Commission in conducting the
selection are allegations of malice-in-law and not malice-in-fact–
The observation of the High Court that “it cannot be a mere co-
B
incidence that 90% of the meritorious candidates in academics
performed so poorly in viva voce that they could not secure even
10 marks out of the 30 marks or that the brilliance got configurated
only in the average candidates possessing bare eligibility” where
inferences drawn from result sheet re-affirmed the allegations of
C malice-in-law.
Service law: Selection process – High Court’s direction to
quash the selection made by the Selection Commission and to hold
fresh selection – Held: In the instant case, the directions ought to
have been issued to complete the process from the stage of holding
D the written test – All the candidates who had applied for the post of
PTI including those selected, ought to have been permitted to take
the written test –There was no requirement of fresh advertisement
and inviting fresh applications –All the applicants who applied in
response to advertisement had right to participate in selection as
per criterion notified on 28.12.2006 –Thus, High Court’s direction
E to quash the selection made by the Selection Commission and to
hold fresh selection is modified – The Commission shall conclude
the entire process initiated by the advertisement as per criterion
notified on 28.12.2006 – All the applicants who had submitted
applications in response to the advertisement including those who
F were selected shall be permitted to participate in the fresh selection.
Words and Phrases: Expression “malice in fact” and “malice
in law” are two well-known concepts in law – The malice in law has
been dealt as “something done without lawful excuse” – The malice
in law is also malafide exercise of power, exercise of statutory power
G for purposes foreign to those for which it is in law intended.
Disposing of the appeals, the Court
HELD: 1. By notification dated 28.07.1998, the Commission
was empowered to devise the mode of selection and fix the criteria
for selection of post for which requisition is sent to it by a
H
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1099

Department or an office, as it may deem appropriate. As per A
notification dated 21.06.2007, the Commission shall consist of
nine members including the Chairman. The selection on various
posts was to be conducted as per the criteria fixed by the
Commission. There are no separate statutory rules providing
for criteria for recruitment for different posts including the post
B
of PTI. [Paras 33, 34][1121-C-D][1122-A-B]
2.1 The preposition that a candidate, who participates in a
selection without a demur taking a calculated chance to get
selected cannot turn around and challenge the criteria of selection
and the constitution of the selection committee is well settled. In
the instant case, both appellants and the respondents had C
submitted applications in pursuance of advertisement dated
28.07.2006 which provided that the Commission may shortlist
the candidates for interview by holding a written examination or
on the basis of a rational criteria to be adopted by the Commission.
The Commission on 28.12.2006 published the criteria for calling D
the candidates for interview. Notice dated 28.12.2006 provided
that written examination shall be held for post of PTI on
21.01.2007, on 100 objective type multiple choice questions, each
question carrying two marks. The notification also prescribed
the minimum qualifying marks- 50% for General category, SC
BC and ESM 45% and 25% marks was assigned to the viva voce. E
The above criteria was implemented and written examination was
conducted on 21.01.2007, which examination was cancelled citing
complaints regarding malpractices in the written examination.
Further notice dated 11.06.2008 was published fixing 20.07.2008
for written examination as per criteria earlier notified. Before F
the above examination could take place, by another public notice,
it was cancelled. Another public notice dated 11.07.2008 was
published where Commission decided to shortlist eight times
the candidates of the advertised post with minimum weightage
secured in each category. The said shortlisting was also given
up by notice dated 31.07.2009 when it was decided to call all G
eligible candidates for interview. Commission did not publish any
criteria or marks on the basis of which interview was to be held.
The criteria, which was published by the Commission on
28.12.2006, 11.06.2008 and 11.07.2008 were given up step by
step and no criteria was published for interview. When H
1100 SUPREME COURT REPORTS [2020] 7 S.C.R.

A Commission had not published any criteria on the basis of which
candidates were going to be subjected for selection process and
the candidates participated in the selection without knowing the
criteria of selection, they cannot be shut out from challenging
the process of selection when ultimately they came to know that
Commission step by step has diluted the merit in selection.
B
Further when the written examination as notified earlier was
scrapped and every eligible candidate was called for interview
giving a go bye to a fair and reasonable process for shortlisting
the candidates for interview, that too only by Chairman of the
Commission whereas decision regarding criteria of selection has
C to be taken by Commission, the candidates have every right to
challenge the entire selection process so conducted. [Paras 37,
39][1122-F][1124-A-D]
Madan Lal and Others v. State of J&K and Others
(1995) 3 SCC 486 : [1995] 1 SCR 908; K.A. Nagamani
D v. Indian Airlines and Others (2009) 5 SCC 515 : [2009]
5 SCR 89; Manish Kumar Shahi v. State of Bihar and
Others (2010) 12 SCC 576; Madras Institute of
Development Studies and Another v. K.
Sivasubramaniyan and Others (2016) 1 SCC 454 :
[2015] 14 SCR 276; Ashok Kumar and Another v. State
E of Bihar and Others (2017) 4 SCC 357 : [2016] 8 SCR
815; Raj Kumar and Others v. Shakti Raj and Others
(1997) 9 SCC 527 : [1997] 1 SCR 1159; Bishnu Biswas
and Others v. Union of India and Others (2014) 5 SCC
774 : [2014] 4 SCR 625 – referred to.
F 2.2 The Division Bench of the High Court is right in its
conclusion that the selection criteria, which saw the light of the
day along with declaration of the selection result could be assailed
by the unsuccessful candidates only after it was published.
Similarly, selection process which was notified was never followed
G and the selection criteria which was followed was never notified
till the declaration of final result, hence, the writ petitioners cannot
be estopped from challenging the selection. The writ petitions
could not have been thrown on the ground of estoppel. [Para
41][1126-B-C]

H
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1101

Lila Dhar v. State of Rajasthan and Others (1981) 4 A
SCC 159 : [1982] 1 SCR 320; Ashok Kumar Yadav
and others v. State of Haryana and Others (1985) 4
SCC 417 : [1985] 1 Suppl. SCR 657 – referred to.
3.1 On 30.06.2008, a type note by the Superintendent
(Recruitment-I) was prepared mentioning that the Chairman had B
ordered that written test for the posts of DPE, Art and Craft
Teacher and PTI, Education Department, Haryana, scheduled to
take place, may be “cancelled on administrative reasons”. The
said note was approved by the Chairman and he also approved
the notice to be published for cancellation of the proposed written
examination. Neither the note nor the order of Chairman C
approving the note give any indication of “administrative reasons”
for cancellation of the examination. Another important change
which was effected in the criteria for selection was the notification
with the approval of note dated 10.07.2008 which mentioned that
the worthy Chairman had issued oral direction that in respect of D
the advertisement, candidates are required to be short-listed eight
times of the vacancy and called for interview. Short-listing was to
be done on the percentage of the marks of the candidates with
minimum percentage mentioned therein. The above criteria was
also given up when another note dated 31.07.2008 was approved
by the Chairman where the Chairman decided that all the eligible E
candidates be called for interview changing the earlier criteria.
The sequence of events indicates that in accordance with the
“special instruction”, the Commission decided the criteria for
calling the candidates for the selection as holding of written
examination of 200 marks and interview for 25 marks which was F
the perfect criteria looking to the number of the candidates i.e.
20,836 who had applied in pursuance of the advertisement for
the post of PTI. The criteria was implemented by holding a written
test which was cancelled due to some complaints. The written
test was again notified which was withdrawn, the earlier criterion
was given a go bye by another notification. This indicates that G
the standard on which candidates are to be screened for selection
was downgraded by Chairman of his own. When the number of
candidates who applied against certain posts are enormously large,
short-listing has always been treated as an accepted mode to
H
1102 SUPREME COURT REPORTS [2020] 7 S.C.R.

A correctly value the work and merit of the candidate.
[Paras 44, 45][1129-B-H]
3.2 As per the notification, it is the Commission, who “shall
devise the mode of selection and fix the criteria for selection.”
The said power has to be exercised in a reasonable and fair manner
B to advance the purpose and object of selection. Even if assuming
that the criteria can be changed by selecting body from time to
time,the said change cannot be affected arbitrarily. The present
is a case where change in criteria has been affected and altered
arbitrarily with the object of down-grading and not up-grading
the standards of selection. [Paras 46, 48][1130-E][1131-D-E]
C
Tamil Nadu Computer Science BED Graduate Teachers
Welfare Society(1) v. Higher Secondary School
Computer Teachers Association and Others (2009) 14
SCC 517 : [2009] 10 SCR 522 – followed.
D Tej Prakash Pathak and Others v. Rajasthan High
Court and Others (2013) 4 SCC 540 – referred to.
3.3 The notifications issued under proviso to Article 309 of
the Constitution of India specifically provides that the
Commission shall devise the mode of selection and fix the criteria
E for selection of posts. The Commission is a multi-member body,
which acts collectively. The Commission in the counter affidavits
filed before High Court or this Court has not brought any rules
or resolution of the Commission by which power of the
Commission to devise the mode of selection and fix the criteria
have been delegated to any other member including the
F Chairman. When there are no statutory rules regarding allocation
of business of the Commission or delegating its business to
members or Committee, the Commission could very well by its
resolution devise its own mode of exercising such power or
function. [Paras 49, 50][1131-F-H][1132-B]
G Naraindas Indurkhya v. The State of Madhya Pradesh
and Others (1974) 4 SCC 788 : [1974] 3 SCR 624 –
referred to.
Principles of Administrative Law : M.P. Jain & S.N.
Jain, 6th Edition, writes in Chapter LXXII – referred
H to.
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1103

3.4 The Division Bench of the High Court after pursuing A
the original records, which was summoned by it from the
Commission has returned a finding that the decision of the
Commission dated 30.06.2008, 11.07.2008 as well as 31.07.2008
were all taken by the Chairman alone, which was proved from
original records containing the relevant notes and approval by
B
the Chairman. The alteration of criteria, thus, was sole handi-
work of the Chairman, which decision was not the decision of the
Commission. The criteria for conducting selection for the post of
PTI as was published on 28.12.2006 was altered by the Chairman
step by step completely giving a go bye to the method of merit
selection. The decision of Chairman of the Commission dated C
30.06.2008 not to hold the written examination was claimed to
have been taken due to “administrative reasons”, but what were
“administrative reasons” were never disclosed or brought on
record by the Commission. The decision to change the selection
process as notified on 28.06.2006 was a major decision not only
D
affecting the applicants who had to participate in the selection on
the basis of criteria as notified on 28.12.2006 but had adverse
effect on merit selection as devised for 1983 posts of PTI.
[Paras 51, 54][1132-E-G][11345-C-E]
4. The Commission being recruiting body abdicated its
obligation of screening out the best candidates; The competitive E
examination, are means by which equality of opportunity is to be
united with efficiency. By the said method, favouritism was to be
excluded and the goal of securing the best man for the job was to
be achieved. Estopping the petitioners from challenging the
change of criteria will be giving seal to arbitrary changes affected F
by Chairman. [Paras 55, 57][1134-G-H][1135-A]
5. The Commission being a multi-member body, all
decisions pertaining to mode of selection and criteria was to be
taken by the Commission itself, there being no rules or resolution
delegating the said power to Chairman or any other member. G
The decision of not holding written examination dated 30.06.2008,
decision to screen on the basis of eight times of vacancies and
percentage of marks dated 11.07.2008 and decision dated
31.07.2008 to call all eligible candidates, were all decisions taken
by the Chairman himself, which decisions cannot be said to be
H
1104 SUPREME COURT REPORTS [2020] 7 S.C.R.

A decisions of the Commission. The decision dated 03.08.2008 was
never taken on 03.08.2008 as claimed and the said resolution
was prepared subsequent to declaration of the result when the
Single Judge asked for criteria of the selection, which was
produced in a separate loose sheet signed by all members.
[Para 58][1135-G-H; 1136-B]
B
Ratnagiri Gas and Power Private Limited v. RDS
Projects Limited and Others (2013) 1 SCC 524 : [2012]
9 SCR 690 – referred to.
6.1 The present is not a case of malice in fact. The “malice
C in fact” and “malice in law” are two well-known concepts in law.
The malice in law has been dealt as “something done without
lawful excuse”. The malice in law is also mala fide exercise of
power, exercise of statutory power for purposes foreign to those
for which it is in law intended. In the present case, the power to
D device the mode of selection and fix the criteria for selection was
entrusted on the Commission to further the object of selection
on merit to fill up post in State in consonance with the provisions
of Articles 14 and 16 of the Constitution of India. When the
alteration of criteria has been made, which has obviously affected
the merit selection, the allegations which have been made in the
E writ petition against the Commission in conducting the selection
are allegations of malice-in-law and not malice-in-fact. [Paras 61,
62][1138-F; 1140-E-G]
6.2 The High Court had summoned the original records of
the Commission including the marks awarded to the candidates
F both on basic qualification as well as essential qualification as
well as viva voce. The observation of the High Court that “it
cannot be a mere co-incidence that 90% of the meritorious
candidates in academics performed so poorly in viva voce that
they could not secure even 10 marks out of the 30 marks or that
G the brilliance got configurated only in the average candidates
possessing bare eligibility” where inferences drawn from result
sheet and re-affirms the allegations of malice-in-law. The
inferences drawn by the High Court, thus, cannot be said to be
unfounded nor are based on no material or perverse so as to call

H
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1105

for any interference by this Court in these appeals. There is no A
substance in the submission that since no specific allegations
against Chairman and members have been made and they being
not impleaded as the parties, the allegations in the writ petition
regarding allocation of marks in viva voce cannot be looked into
by the High Court. [Para 63][1140-H; 1141-A-C]
B
State of Haryana and Another v. Sandeep Singh and
Others (2019) 6 SCC 453 : [2019] 7 SCR 181 –
referred to.
7. When the selection for 1983 posts of PTI was set aside
and the High Court directed to hold a fresh selection, the selection C
process was to be continued and completed under the orders of
the High Court. However, selection initiated by advertisement
has to proceed further from the stage the criterion was arbitrarily
changed by the Chairman. The completion of selection has to be
only from amongst the candidates who had applied against post
of PTI, including those who were selected. All the candidates D
who had applied for the post of PTI including those selected,
ought to be permitted to take the written test. In the facts of the
present case, there was no requirement of fresh advertisement
and inviting fresh applications. In the event fresh applications
are called, large number of applicants who participated in the E
selection would have become over age. All the applicants who
had applied in response to advertisement had right to participate
in selection as per criterion notified on 28.12.2006. The direction
of Single Judge is modified to the above effect. The Commission
shall conclude the entire selection process initiated by the
advertisement No.6 of 2006 as per criterion notified on 28.12.2006 F
i.e. holding objective type written test of 200 marks and viva
voce of 25 marks. All the applicants who had submitted
applications in response to the above advertisement including
those who were selected shall be permitted to participate in the
fresh selection as directed. [Paras 72, 73, 75][1145-D-F; 1145- G
H; 1146-A-B; 1146-G-H; 1147-A]
C. Channabasavaih Etc. Etc. v. State of Mysore and
Others AIR 1965 SC 1293 : [1965] SCR 360 – referred
to.
H
1106 SUPREME COURT REPORTS [2020] 7 S.C.R.

A Case Law Reference
[1995] 1 SCR 908 referred to Para 37
[2009] 5 SCR 89 referred to Para 37
(2010) 12 SCC 576 referred to Para 37
B [2015] 14 SCR 276 referred to Para 37
[2016] 8 SCR 815 referred to Para 37
[1997] 1 SCR 1159 referred to Para 39
[2014] 4 SCR 625 referred to Para 40
C
[1982] 1 SCR 320 referred to Para 42
[1985] 1 Suppl. SCR 657 referred to Para 43
[2009] 10 SCR 522 followed Para 47
(2013) 4 SCC 540 referred to Para 48
D
[1974] 3 SCR 624 referred to Para 50
[2012] 9 SCR 690 referred to Para 59
[2019] 7 SCR 181 referred to Para 69
[1965] SCR 360 referred to Para 74
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2103
of 2020.
From the Judgment and Order dated 30.09.2013 of the High Court
of Punjab and Haryana at Chandigarh in L.P.A. No. 1594 of 2012.
F With
Civil Appeal Nos. 2104, 2105, 2107, 2106, 2108, 2164-2166, 2168-
2169, 2167 of 2020.
Anil Grover, AAG, Kapil Sibal, Manjeet Singh Dalal, Manoj
Swarup, Narender Hooda, Sr. Advs., Devashish Bharuka, Ms. Sarvshree,
G
Ravi Bharuka, Pradeep Dahiya, Jusine George, Ms. Srishti Agrawal,
Sanjiv Goel, Ms. Nandita Hooda, Jay Kishor Singh, Nirmal Kumar
Pandey, Mohit Raj, Ravindra Keshavrao Adsure, Mirtunjay Kumar Singh,
Hitesh Kumar Sharma, Akhileshwar Jha, Ms. Madhu Gupta, Ms. Mamta
Upadhyaya, Kamal Mohan Gupta, Sunny Choudhary, Mrs. Shiel Sethi,
H Harkesh Singh, Sanjay Rathee, Ms. Beena, Amit Chahal, Suryaveer
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1107

Singh, Mrs. Mahima Singh, Satyendra Kumar, Ms. Ruchi Kohli, Harikesh A
Singh, R. Duatan, Dinesh Kumar Garg, Satish Kumar, Mukesh K. Verma,
Ramesh Goyal, Prakash Yadav, Ms. Namrata Bhatnagar, Anis Ahmed
Khan, Deepak Thukral, Satish Kumar, Dr. Monika Gusain, D. Goyal,
Gautam Sharma, Abhishek Kumar, Tushar Sharma, Ms. Anindita Pujari,
Aditya Singh, Shubham Singh, Pankaj Yadav, Sanjay Kumar Visen, Bharat
B
Singh, Abhijeet Pandore, Mahipal Khagnwal, Amit Pawan, Santosh
Mishra, Ramesh Goyal, Arihant Goel, Neelmani Pant, Ms. Vidisha
Swarup, Rakesh Kumar, Akshay Verma, Saurav Arora, Pawan, Advs.
for the appearing parties.
The Judgment of the Court was delivered by
C
ASHOK BHUSHAN, J.
1. These appeals have been filed against the common judgment
dated 30.09.2013 of High Court of Punjab and Haryana dismissing LPA
filed by the appellants affirming the judgment of learned Single Judge
dated 11.09.2012 by which the Selection dated 10.04.2010 selecting D
appellants on the post of Physical Training Instructor (PTI) was set
aside. All the appeals having been filed against the common judgment
involving common facts and questions of law, for deciding the batch of
appeals, it shall be sufficient to refer pleadings in Civil Appeal No.2103/
2020, Ramjit Singh Kardam and others versus Sanjeev Kumar and others.
E
2. The brief facts necessary to be noted for deciding these appeals
are: -
2.1. The Haryana Staff Selection Commission (hereinafter
referred to as Commission) vide Advertisement No.6 of
2006 dated 20.07.2006 invited applications for various posts F
enumerated in different category numbers in the
Advertisement. Under category No.23, 1,983 posts of PTI
(Physical Training Instructor) were advertised. The
Advertisement mentioned the educational qualifications for
the post. Advertisement contained a special instruction in
following words: - G
“SPECIAL INSTRUCTIONS:
The prescribed essential qualification does not entitle
a candidate to be called for interview. The
Commission may short list the candidates for
H
1108 SUPREME COURT REPORTS [2020] 7 S.C.R.

A interview by holding a written examination or on the
basis of a rational criteria to be adopted by the
Commission. The decision of the Commission in all
matters relating to acceptance or rejection of an
application, eligibility/suitability of the candidates,
mode of and criteria for selection etc. will be final
B
and binding on the candidates. No inquiry or
correspondence will be entertained in this regard.”
2.2. In pursuance of advertisement for the posts of PTI, 20,836
applications were received by the Commission.The
notification dated 28.12.2006 was published by the
C Commission to the effect that the Commission has decided
to hold the written examination on 21.01.2007. Notification
further mentioned there shall be 100 objective type Multiple
Choice Questions, 60 Questions relating to Academic
Knowledge of the respective subject for which a candidate
D is appearing in the test and 40 Questions related to General
Knowledge, General English and Hindi upto Matric Standard.
Each question was to carry two marks. The candidates
were required to secure minimum qualifying marks in written
test i.e. 50% for General Category and 45% for SC/BC.
Notification further mentioned that Viva-voice will be of 25
E marks. The notification further provided that candidates
equal to three times of the vacancies will be called for
interview based on their performance in the written test.
The written examination was held on 21.02.2007.
2.3. A public notice was issued on 01.02.2007 by the Commission
F that due to several complaints/reports with regard to
malpractices and cheating committed in written examination
held on 21.01.2007, Commission has decided to cancel the
aforesaid examination.
2.4. Another notice dated 11.06.2008 was issued by the
G Commission re-notifying the written examination for the PTI
on 20.07.2008. However, before the written examination
could take place on 20.07.2008, another notice dated
30.06.2008 was issued by the Commission cancelling the
written examination to be held on 20.07.2008. Another
H notice dated 11.07.2008 was published by the Commission
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1109
[ASHOK BHUSHAN, J.]

to shortlist the candidates for interview. The notice A
mentioned that keeping in view the large number of
applications, Commission has decided to shortlist eight times
candidates of the advertised post in the respective category
for interview on the basis of essential academic advertised
qualification. Notice also mentioned the minimum weighted
B
score of each category.
2.5. On 18.07.2008, the interview schedule was published by
the Commission which provided that Interview was notified
from 02.09.2008 to 17.10.2008. 15,582 candidates appeared
in the interview. One member of the Commission and one
expert member headed each Interview Committee from A C
to H. Although the interview was completed in the year
2008 itself, the Commission could declare the result of the
selection after one and half years only on 10.04.2010 which
was published on 11.04.2010. At the end of the result as
published in the newspaper, criteria adopted for selection D
was also mentioned to the following effect: -
“CRITERIA ADOPTED FOR SELECTION:
The criteria adopted by the Commission for making
selection is given below: -
E
1) Academic marks…………60 Marks
2) Marks obtained in the Viva voice out of
…………………………30 Marks
Total: 90- Marks”
F
3. Challenging the Select list dated 10.04.2010, large number of
writ petitions were filed in the Punjab and Haryana High Court including
CWP No.15656 of 2010, Sanjeev Kumar and others versus State of
Haryana and others. The writ petitioners before filing writ petitions had
obtained information under Right to Information Act details of which
information were mentioned in the writ petition. Various grounds were G
taken in the writ petition to challenge the selection. The writ petitioners
pleaded in the writ petition that some of the candidates have been awarded
more than 25 marks in viva-voice. Further, some of the candidates have
been selected and appointed who did not possess the requisite qualification
of certificate in Physical Education conducted by Haryana Education
H
1110 SUPREME COURT REPORTS [2020] 7 S.C.R.

A Department or an equivalent qualification recognized by Haryana
Education Department. The petitioners further pleaded that once the
criteria was laid down by the Commission, the same was required to be
followed strictly while making the selection and it was not proper to
change the criteria. The petitioners pleaded that criteria has been changed
by the respondent authority to get the desired result and in order to bring
B
the candidates within the zone of selection in order to grant them undue
benefits for the reasons best known to the respondent authorities.
4. The Petitioner No.1 of CWP No.15656 of 2010 pleaded that
out of 62 Candidates who have been appointed in district Yamuna Nagar,
61 are less meritorious as compared to petitioner No.1. The petitioner
C No.1 although secured 41.68 marks in academic qualifications but could
get only 8 marks in the interview. Petitioner further pleaded that all other
petitioners secured good marks in academic qualifications but they
received less marks in viva-voice due to which they could not be included
in the Select list.
D 5. On an application given under RTI asking for a copy of the
criteria, it was only on 17.06.2010 the criteria was supplied. The writ
petitioners further pleaded that authorities while making selection neither
adopted any rationale criteria nor selected the candidates on the basis of
merit. The criteria was changed from time to time in order to select
E some favourites. Entire selection appears to be a fraud played upon the
general public. 25 marks were mentioned for viva-voice but when the
result was finalized the candidates were awarded marks more than 25
marks. Paragraph 51 of the W.P.No.15656 of 2010 enumerated the main
points involved in the writ petition.

F “51. That the main law points involved in the writ petition
are: -
i) Whether the respondent – authorities have adopted pick
and choose policy while selecting the private respondents?
ii) Whether the marks allocated for the interview as per the
G advertisement could be changed subsequently after the
commencement of the selection procedure at the whims of
the respondent authorities?
iii) Whether any rational criteria was adopted by the
respondent – authorities while awarding the marks for
H the viva-voce?
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1111
[ASHOK BHUSHAN, J.]

iv) Whether the marks for the viva-voice were required to be A
bifurcated under various heads?
v) Whether the persons who did not possess even the requisite
educational qualification could be selected for the post?
vi) Whether the selection conducted by the respondent –
authorities is fair transparent and sustainable in the eyes B
of law?
vii) Whether while making the selection Articles 14 and 16 of
the Constitution of India have been violated?
viii) Whether the action of the respondent-authorities is C
arbitrary, discriminatory and unsustainable in the eyes
of law?
ix) Whether the petitioners should be allowed to suffer for
no fault on their part especially when the petitioners
possess better academic record as compared to the selected D
candidates?”
6. In the writ petition No.15656 of 2010, following prayers were
made:-
“
i. relevant records of the case be summoned; E

ii. to issue a writ in the nature of Certiorari quashing the
selection list Annexure P-9 dated 10.04.2010 and to issue
a writ in the nature of Mandamus directing the respondent
authorities to select and appoint the petitioners as PTI’s
and it is further prayed that during the pendency of the F
writ petition the respondents may kindly be restrained from
appointing the selected candidates to the posts of PTI’s.
iii. To issue any other appropriate writ, order or direction as
this Hon’ble Court may deem fir and proper in the facts
and circumstances of the present case; G

iv. To dispense with from filing the certified copies of the
Annexures;
v. Prior notices to the respondents may kindly be dispensed
with;
H
1112 SUPREME COURT REPORTS [2020] 7 S.C.R.

A vi. To allow the petitioners to file photostat copies of the
Annexures;
vii. Costs of the writ petition be awarded in favour of the
petitioners and against the respondents,
Any other order which this Hon’ble Court may deem fir may
B kindly be passed.”
7. The selected candidates were also subsequently impleaded as
parties in most of the writ petitions and repeated efforts were made to
serve them. Hundreds of selected candidates were duly served. Written
statements were also filed by selected candidates in the writ petitions.
C The High Court noticed that several respondents have not been served
due to various reasons. Rest of candidates were served through
substituted service for which public notice was published in the daily
“The Tribune” on 21.03.2012.
8. A counter affidavit was also filed by the Commission opposing
D the writ petition. Learned Single Judge had also called for the original
record from the Commission which were produced by the Commission
before the Court.
9. Learned Single Judge after hearing the counsel for the parties
and after perusing the record allowed all the writ petitions by judgment
E and order dated 11.09.2012. Operative portion of the judgment of the
learned Single Judge is as follows: -
“...These writ petitions are thus allowed. The purported
selection made by the Haryana Staff Selection Commission in
pursuance to the advertisement No.6/2006, result whereof was
F published on 11.04.2010 relating to category No.23 for the
posts of PTIs, is hereby quashed. A direction is issued to the
Haryana Staff Selection Commission to hold a fresh selection,
in accordance with law, within a period of five months from
the date of receipt of certified copy of this order.
G Photocopies of the original noting files produced in
Court as also the purported criteria laid down by the
Commission dated 03.08.2008 have been got prepared, kept
in a sealed cover and placed on the records of CWP No.15656
of 2010 to be opened only on Court orders. Produced original
records be handed over to Mr. Harish Rathee, learned Senior
H Deputy Advocate General, Haryana.
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1113
[ASHOK BHUSHAN, J.]

(AUGUSTINE GEORGE MASH) A
JUDGE
11.09.2012"
10. LPA No.1594 of 2012 and several other LPAs were filed
before the Division Bench challenging the judgment dated 11.09.2012.
Apart from LPAs filed by selected candidates, few of the LPAs were B
also filed by some of the writ petitioners they being partly dissatisfied by
the order of the Single Judge as the issue of ineligibility and disqualification
of selected candidates expressly raised by them have not been gone into
by learned Single Judge.
11. The State of Haryana as well as Haryana Staff Selection C
Commission had also filed LPA challenging the judgment of the learned
Single Judge. All the LPAs were heard and decided by the Division
Bench vide its judgment dated 30.09.2013. The Division Bench upheld
the order of learned Single Judge. Operative portion of the judgment of
the Division Bench dated 30.09.2013 is as follows: - D
“54) For the reasons afore-stated, we uphold the decision of
the learned Single Judge and consequently: -
i) LPA Nos. 1841 and 1903 of 2012 filed by the
Haryana Staff Selection Commission are dismissed
with cost of Rs.50,000/- each to be deposited with E
the High Court Legal Services Committee within a
period of one month;
ii) LPA No.1562, 1831 to 1839, 1842 to 1855, 1879 to
1902, 1904 to 1917, 1997, 2002, 2028 of 2012; 248
& 262 of 2013 jointly filed by the State of Haryana F
and the Haryana Staff Selection Commission are
dismissed with cost of Rs. 10,000/-in each case to be
deposited with the High Court Legal Services
Committee within one month;
iii) LPA Nos. 1555,1557,1592,1594, 1856 to 1860, 1870 G
to 1878, 1918 to 1920, 1950 of 2012; 529 of 2013
filed by the selected candidates are dismissed with
cost of Rs.10,000/- each to be deposited in the High
Court Lawyer Welfare Fund within one month;
H
1114 SUPREME COURT REPORTS [2020] 7 S.C.R.

A iv) LPA Nos. 1595, 1760,1967,2194 of 2012; and 303
of 2013 filed by the writ petitioners are disposed of
in the light of the observations made in para-53 of
this Court;
55) Photostat copies of the four files containing original
B notings and decisions taken by the Commission or its
Chairman from time to time, the decision dated 03.08.2008
have been retained and shall be kept as a part of the judicial
record. The original record be returned to the Commission
under receipt.
C 56) Ordered accordingly. Dasti.”
12. These appeals have been filed by the selected candidates
whose selection had been set aside by learned Single Judge and affirmed
by the Division Bench. The State of Haryana as well as Haryana Staff
Selection Commission had also filed Special Leave to Appeal being
D SLP(Civil) No. 11143-11210 of 2014 which was disposed of by this Court
by following order dated 30.07.2014: -
“Delay condoned.
The issue arising in this group of special leave petitions is
pending before this Court in SLP(C) No.35373 of 2013 etc.
E filed at the instance of selected candidates. All the questions
raised herein would be open to the petitioner State to be urged
in SLP(C) No. 35373 of 2013. In that view of the matter, we
do not consider it necessary to issue formal notice in these
special leave petitions. Accordingly, they are not being
F entertained. The special leave petitions are disposed in terms
of the above.”
13. While entertaining the SLP No.35373 of 2013, Ramjit Singh
Kardam and others versus Sanjeev Kumar and others, and other special
leave petitions, this Court passed following order on 29.11.2013: -
G “Issue Notice.
Returnable in three weeks.
Status Quo, as on today shall be maintained in the meantime.”
14. These appeals were heard on various dates by this Court. On
H 22.01.2020, this Court passed following order: -
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1115
[ASHOK BHUSHAN, J.]

“Hearing to continue tomorrow (23.01.2020). A
Learned counsel for the State may produce the original record
of selection.”
15. Further, when the matter was heard on 23.01.2020, learned
counsel for the State as well as Commission produced certain original
records on which date following order was passed: - B

“Learned counsel for the State today placed before this
Court an original tabulation register of the result sheet,
selection list register, interview marks register of the member
as well as of expert, which indicate that marking have been
done separately. The letter dated 03.08.2008, in original, has C
also been placed before the Court, which was also placed
before the High Court.
Heard in part.
List for continuation of arguments on 29.01.2020. D
Learned counsel for the State shall produce rest of the original
records on the next date of hearing i.e. 29.01.2020.”
16. Matter was further heard by this Court on 29.01.2020 when
following order was passed:-
“We have heard learned counsel for the parties. E

Learned counsel appearing for the Commission has
placed before us further original records i.e. File No.1
containing correspondence and another original file. On the
earlier occasion learned counsel for the Commission has
produced the original records which we have noticed in our F
order dated 23.01.2020. The register containing marking by
expert member of the Commission were produced from which
it appears that the expert member has graded the candidates
in A, B and C category whereas the member of the Commission
has given marks out of 30. On our query as to whether there G
was any guidelines to reflect the evaluation by the Commission
member or how both were to be correlated, learned counsel
for the Commission could not give any reply.
Learned counsel for the petitioners has further
submitted that in above facts situation, Commission be directed H
1116 SUPREME COURT REPORTS [2020] 7 S.C.R.

A to file an affidavit explaining the relevant procedure and the
guidelines, if any, with regard to selection in question and
other selection at the relevant time. With regard to letter dated
03.08.2008, which was produced in an envelope on the last
occasion, learned counsel for the Commission submitted that
the said letter as well as the proceeding sheets are not on the
B
original records which have been produced today.
Learned counsel for the respondents, who were writ
petitioners, submits that the State Government may also be
directed to give details of the vacancies, existing as on date
in the relevant PTI Cadre.
C
We allow two weeks’ time to the learned counsel for the
Commission to file an affidavit giving details as indicated
above after serving the same on the learned counsel for the
petitioners, who may also file response thereof within a week
thereafter.
D
List on 26.02.2020.”
17. In pursuance of the order of this Court dated 29.01.2020, an
affidavit dated 11.02.2020 sworn by Isha Kamboz, Secretary, Haryana
Staff Selection Commission, has been filed.
E 18. For the appellants, we have heard Shri Kapil Sibal, learned
senior counsel, Shri V.Giri, learned senior counsel, Shri Ravindra
Srivastava, learned senior counsel, Shri Navneeti Prasad Singh, learned
senior counsel, Shri Rameswar Malik, learned senior counseland other
learned counsel. Shri Manoj Swarup has appeared for the respondent
F writ petitioners. We have also heard other counsel appearing for
respondent writ petitioners. Shri A.K. Sinha and other counsels for
intervenors. We have heard Shri Anil Grover, Additional Advocate
Generalfor State of Haryana as well as Haryana State Selection
Commission.
19. Learned counsel for the appellants challenging the judgment
G
and order of both learned Single Judge and Division Bench of the High
Court submits that there were no sufficient grounds and materials before
the High Court to set aside the entire selection, which was held for 1983
posts of PTI. It is submitted that the respondent writ petitioners have
participated in selection without any demur or protest, hence, they are
H not entitled to challenge the selection after having been declared
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1117
[ASHOK BHUSHAN, J.]

unsuccessful. On the principle of estoppel, they are precluded from A
challenging the selection.
20. It is submitted that criteria for selection was uniformly applied
to all the candidates and respondent writ petitioners having not challenged
the criteria of selection cannot be allowed to challenge the criteria after
declaration of the select list. B
21. It is submitted that there are no allegations of any mala fide
against the Chairman or any member of the Commission or any
candidate. The High Court committed error in accepting the grounds of
challenge by the writ petitioners that those candidates who secured good
marks in Academics were deliberately given less marks in the viva-voce C
so that they may go out of select list. Insofar as not holding of the written
examination it is submitted that there were grounds for scrapping the
written examination which was held on 01.02.2007.
22. The Commission decided not to hold the written examination
and proceeded to hold the selection on the basis of criteria which was D
applied in the earlier selection i.e. 2003 selection i.e. 60 marks for
Academics and qualification and 30 marks on the Viva-voice to which
no exception can be taken by respondent writ petitioners. The criteria
which was applied in the Selection was signed by all members of the
Commission on 03.08.2008 to which no exception can be taken by the
respondent writ petitioners. E

23. The Courts cannot start looking on the marks allocated in
Viva-voce nor the same is in the domain of the Court. The appellants
are now over age and having worked for 10 about years, at this stage,
they cannot be displaced. Increase of marks from 25 to 30 for viva-
voice was not violative of any norms. Jurisdiction under Article 226 is F
not an investigative jurisdiction but it is adjudicatory jurisdiction.
24. Shri Manoj Swarup, learned senior counsel appearing for the
respondent writ petitioners submits that the writ petitioners were unaware
of the criteria which was to be applied by the Commission in the Selection
and they came to know about the criteria of 60 marks for Academics G
Qualifications and 30 marks for Interview only by final result dated
10.04.2010 when it was mentioned in the final result.
25. The Commission could not have held any selection without
declaring the criteria beforehand. The written examination which was
re-notified on 11.06.2008 was not proceeded with without any valid reason. H
1118 SUPREME COURT REPORTS [2020] 7 S.C.R.

A Written examination is sure mode of finding out merit in the candidates
and looking to number of the candidates which was more than 20,000,
the Commission has rightly taken a decision to hold a written test of 200
marks and interview of 25 marks which ought to have adhered by the
Commission.
B 26. The Commission never informed the candidates that no written
examination shall be held. The High Court had summoned the original
records and found out from the original records that those candidates
who were meritorious as per the qualification and academic marks were
deliberately given marks ranging from 7 to 13 so that they may go out of
the Select list. Those candidates who had poor academic records were
C given marks in interview ranging from 18 to 28 so that they may get
selected.
27. The Commission after taking a decision on 30.06.2008 not to
hold the written examination, decided to shortlist the candidates for
interview on the basis of marks obtained by them in the academics and
D educational qualification and called the candidates 8 times of the number
of vacancies. Minimum marks were also prescribed for candidates to
be called in the interview. The Commission subsequently did not even
adhere to their notification dated 11.07.2008 and decided to call all eligible
candidates for interview with intend to help those who could not have
E come in the criteria of 8 times of the number of vacancies on the basis
of Academic record.
28. The Commission from the very beginning has proceeded in a
manner which indicate that the merit criteria was deliberately given up
to accommodate favourites. The entire selection has rightly been set
F aside by learned Single Judge and affirmed by the Division Bench. The
respondent writ petitioners were meritorious and deserved selection in
event the Commission could have proceeded to examine the candidates
on merit and as per the criteria of holding written examination or screen
the candidates 8 times of the number of vacancies. The petitioner after
coming to know about the criteria from the result dated 10.04.2010
G immediately filed writ petition in May, 2010 challenging the criteria. The
undue delay in declaring the result i.e. one and a half year creates doubt
about the fairness of the Commission in declaring the result.
29. Shri Swarup submits that entire selection having scrapped by
the High Court, this Court may direct for holding of fresh selection enabling
H the petitioners to participate and get selected on their merit. It is submitted
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1119
[ASHOK BHUSHAN, J.]

that continuance of appellants on the basis of interim order should not be A
given any credence. The Commission in conducting the selection on the
post of PTI has not acted as per norms and requirement of law. Decision
to scrap the written test and further not to hold the written test and all
the subsequent steps having taking by Chairman, who alone was not
competent to take decision, were without authority of law. It is submitted
B
that decision dated 03.08.2008 on which the reliance has been placed by
the Commission was never taken on 03.08.2008 and when the learned
Single Judge asked for the criteria, the letter dated 03.08.2008 was
prepared and got signed by all the members and submitted in the High
Court. The High Court has rightly refused to believe that criteria was
formulated on 03.08.2008 by the Commission. C
30. Learned counsel for the Commission as well as State of
Haryana submits that criteria which was applied of 60 marks and 30
marks was the criteria which was earlier applied also in 2003. It was
submitted that insofar allocation of marks by member and expert there
are no guidelines or materials to indicate how the marks were awarded D
in the viva-voice. He further submits that in view of the Haryana School
Education (Group-C) State Cadre Service Rules, 2012, the post of PTI
is converted as TGT and PTI have become a dying cadre. He submits
that at present there are no vacancies on the post of PTI which has
been declared as dying cadre. Fresh selection can only be held for the
post of TGT (Physical Education) for which qualifications have also E
been changed.
31. Shri Kapil Sibal, learned senior counsel appearing for appellant
in his rejoinder submits that even though 1496 candidates got high marks
in the academics, they are only 10% of the total number of candidates
and only few hundreds got 20-27 marks in the viva-voce. From where F
High Court got the material to hold that 90 percent candidates who
performed poorly in the Academics got higher marks in the viva-voce?
The Commission has said that marks of the Academics and qualifications
were not before the Interview Board. All 8 members of the Commission
cannot be said to have conspired to follow a pattern of work. G
32. From the pleadings on the records and submissions made by
the learned counsel for the parties, following points arise for consideration:-
i) Whether the respondent writ petitioners who had participated
in the selection were estopped from challenging the selection
in the facts of the present case? H
1120 SUPREME COURT REPORTS [2020] 7 S.C.R.

A ii) Whether the respondent writ petitioners could have challenged
the criteria of selection applied by Commission for selection
after they had participated in the selection?
iii) Whether the decision dated 30.06.2008 to cancel the written
examination and the decision dated 11.07.2008 to call the
B candidates for interview 8 times number of vacancies on
minimum percentage of marks as fixed therein and the decision
dated 31.07.2008 to call all the eligible candidates for interview
were arbitrary decision to change selection criteriapublished
on 28.12.2006, which have effect of downgrading the merit
in the Selection?
C
iv) Whether it was obligatory for the Commission as a body to
take all decisions pertaining to Selection on the post of PTI
including the decision of not holding written examination,
decision to screen on the basis 8 times of vacancies and
decision to call all eligible candidates and whether aforesaid
D decisions were taken by the Chairman alone?
v) Whether on 03.08.2008, a decision was taken by the
commission fixing the criteria for the selection on the post of
PTI which was signed by all the members on 03.08.2008 as
claimed by the Commission?
E
vi) Whether without there being any specific allegations of
malafide against the Chairman and members of the
Commission and without they having been impleaded by name
as party respondents, the writ petitioners could have challenged
the allocation of marks in viva-voce and High Court was right
F in accepting the claim that candidates who got highest marks
for academic qualifications ranging between 40 to 48.74 marks
have been awarded just 7 to 9 marks in the viva-voce and as
against it there are hundreds of selected candidates who have
been awarded 20 to 27 out of 30 marks in the viva-voce to
G ensure that they outclass the academically bright candidates?
vii) Whether no fresh selection can be held as directed by learned
Single Judge since as per 2012 Rules, the post of PTI has
been declared as a dying cadre and the post has merged into
the post of TGT Physical Education?
H
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1121
[ASHOK BHUSHAN, J.]

33. Before we proceed to consider the submissions of the learned A
counsel for the parties and the points formulated as above, we need to
notice the constitution of Haryana Staff Selection Commission, relevant
notifications and orders governing its powers and procedures. By
notification dated 28.01.1970, the Governor of Haryana, in exercise of
power conferred by Article 309 of the Constitution of India constituted B
the Subordinate Services Selection Board. All appointments to non-
gazetted class-III posts under the Haryana Government except
appointments of officers and employees of Punjab & Haryana High
Court provided for in accordance with Article 229 of the Constitution of
India were mandated to be made on the advice of the Board. Vide
notification dated 09.12.1997, the words “Subordinate Services Selection C
Board” were substituted by “Haryana Staff Selection Commission”. Vide
notification dated 28.07.1998, sub-para (d) of para 6 was substituted,
according to which the Commission was empowered to devise the mode
of selection and fix the criteria for selection of post for which requisition
is sent to it by a Department or an office, as it may deem appropriate
D
and the criteria for selection of posts fixed earlier by the Board/
Commission shall be deemed to have been fixed under this sub-paragraph.
Vide notification dated 21.06.2007, paragraph 1 was substituted with
effect from 20.04.2007, according to which the Commission shall consist
of nine members including the Chairman, out of whom a minimum of
two members would be such as have held office for at least ten years E
either under the Government of India or under the Government of the
State. In this notification sub-para 4 reads as follows:-
“(iv) in paragraph 6, for clause (d), the following clause shall be
substituted and shall be deemed to have been substituted with
effect from 10th January, 2006, namely:- F
“(d) methods of recruitment and the principles to be followed
in making appointments to the Group B, Group C and Group D
posts under the State Government. The Commission shall devise
the mode of selection and fix the criteria for selection of posts
for which requisition is sent to it by a department of an office, G
as it may deem appropriate and the criteria for the selection of
posts fixed earlier by the Board/Commission shall be deemed
to have been fixed under the clause.”
34. As per notifications mentioned above, the Commission was
empowered to devise the mode of selection and fix the criteria for H
1122 SUPREME COURT REPORTS [2020] 7 S.C.R.

A selection of posts for which request was sent to it by department or an
office. Sub-paragraph 4 of the notification dated 20.04.2007 as extracted
above, which was substituted w.e.f. 10.01.2006 empowered the
Commission providing that Commission shall devise the mode of selection
and fix the criteria for selection of posts and for which request is sent by
a department or an office. The selection on various posts was to be
B
conducted as per the criteria fixed by the Commission. There are no
separate statutory rules providing for criteria for recruitment for different
posts including the post of PTI with which we are concerned in these
appeals.
35. We having noticed that the power is vested in the Commission
C to fix the criteria for selection, we now proceed to consider points for
determination.
Point Nos.1 and 2
36. Learned counsel for the appellant at very outset contended
D that the writ petitions filed by the respondent challenging the select list
dated 10.04.2001 ought not to have been entertained by the High Court
since the respondent having participated in the selection without any
demur or protest, they are estopped from challenging the selection. The
submission is refuted by the respondent contending that the above principle
of estopple is not applicable in the facts of the present case. The petitioner
E being not even aware of the criteria, which was to be applied for selection,
which they came to know only after select list was published, there was
no occasion to make any challenge by the respondents before the above
date.
37. The preposition that a candidate, who participates in a selection
F without a demur taking a calculated chance to get selected cannot turn
around and challenge the criteria of selection and the constitution of the
selection committee is well settled. The appellants have placed reliance
on judgment of this Court in Madan Lal and Others Vs. State of
J&K and Others, (1995) 3 SCC 486; K.A. Nagamani Vs. Indian
G Airlines and Others, (2009) 5 SCC 515; Manish Kumar Shahi
Vs. State of Bihar and Others, (2010) 12 SCC 576; Madras
Institute of Development Studies and Another Vs. K.
Sivasubramaniyan and Others, (2016) 1 SCC 454 and Ashok
Kumar and Another Vs. State of Bihar and Others, (2017) 4 SCC
357.
H
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1123
[ASHOK BHUSHAN, J.]

38. In Madan Lal and Others(supra), this Court laid down A
following in paragraph 9:-
“9. ……………………….It is now well settled 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 B
interview was unfair or the Selection Committee was not properly
constituted. In the case of Om Prakash Shukla v. Akhilesh
Kumar Shukla, 1986 Supp SCC 285, it has been clearly laid
down by a Bench of three learned Judges of this Court that when
the petitioner appeared at the examination without protest and
when he found that he would not succeed in examination he filed C
a petition challenging the said examination, the High Court should
not have granted any relief to such a petitioner.”
39. The above preposition has been reiterated in other judgments
of this Court noted above. In the present case, whether the respondents-
writ petitioners are estopped from challenging the selection? While D
noticing the facts of the case, we have noted above that both appellants
and the respondents had submitted applications in pursuance of
advertisement dated 28.07.2006 No.6/2006. In advertisement, it was
provided that the Commission may shortlist the candidates for interview
by holding a written examination or on the basis of a rational criteria to E
be adopted by the Commission. The Commission on 28.12.2006 published
the criteria for calling the candidates for interview. Notice dated
28.12.2006 provided that written examination shall be held for post of
PTI on 21.01.2007, on 100 objective type multiple choice questions, each
question carrying two marks. The notification also prescribed the minimum
qualifying marks- 50% for General category, SC BC and ESM 45% and F
25% marks was assigned to the viva voce. The above criteria was
implemented and written examination was conducted on 21.01.2007,
which examination was cancelled citing complaints regarding
malpractices in the written examination. Further notice dated 11.06.2008
was published fixing 20.07.2008 for written examination as per criteria G
earlier notified. Before the above examination could take place, by public
notice dated 30.06.2008, it was cancelled. Another public notice dated
11.07.2008 was published where Commission decided to shortlist eight
times the candidates of the advertised post with minimum weightage
secured in each category. The said shortlisting was also given up by
notice dated 31.07.2009 when it was decided to call all eligible candidates H
1124 SUPREME COURT REPORTS [2020] 7 S.C.R.

A for interview. Commission did not publish any criteria or marks on the
basis of which interview was to be held. The criteria, which was published
by the Commission on 28.12.2006, 11.06.2008 and 11.07.2008 were given
up step by step and no criteria was published for interview, which was
scheduled to take place in from 2ndSeptember to 17thOctober, 2008.
When Commission had not published any criteria on the basis of which
B
candidates were going to be subjected for selection process and the
candidates participated in the selection without knowing the criteria of
selection, they cannot be shut out from challenging the process of selection
when ultimately they came to know that Commission step by step has
diluted the merit in selection. When candidate is not aware of the criteria
C of selection under which he was subjected in the process and the said
criteria for the first time is published along with final result dated
10.04.2010, he cannot be estopped from challenging the criteria of
selection and the entire process of selection. Further when the written
examination as notified earlier was scrapped and every eligible candidate
was called for interview giving a go bye to a fair and reasonable process
D
for shortlisting the candidates for interview, that too only by Chairman of
the Commission whereas decision regarding criteria of selection has to
be taken by Commission, the candidates have every right to challenge
the entire selection process so conducted. This Court in Raj Kumar
and Others Vs. Shakti Raj and Others, (1997) 9 SCC 527 held that
E when glaring illegalities have been committed in the procedure to get the
candidates for examination, the principle of estoppel by conduct or
acquiescence has no application. Referring to judgment of this Court’s
judgment in Madan Lal (supra), this Court laid down following in
paragraph 16:-
F “16.…………………………………………The entire
procedure is also obviously illegal. It is true, as contended by Shri
Madhava Reddy, that this Court in Madan Lal v. State of J&K,
(1995) 3 SCC 486 and other decisions referred therein had held
that a candidate having taken a chance to appear in an interview
and having remained unsuccessful, cannot turn round and challenge
G either the constitution of the Selection Board or the method of
selection as being illegal; he is estopped to question the correctness
of the selection. But in his case, the Government have committed
glaring illegalities in the procedure to get the candidates for
examination under the 1955 Rules, so also in the method of selection
H
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1125
[ASHOK BHUSHAN, J.]

and exercise of the power in taking out from the purview of the A
Board and also conduct of the selection in accordance with the
Rules. Therefore, the principle of estoppel by conduct or
acquiescence has no application to the facts in this case. Thus,
we consider that the procedure offered under the 1955 Rules
adopted by the Government or the Committee as well as the action
B
taken by the Government are not correct in law.”
40. One more judgment of this Court which supports the view
taken by the High Court is Bishnu Biswas and others Union of India
and others, (2014) 5 SCC 774. An advertisement was published calling
applications for appointment to the post of Group D staff. The Recruitment
Rules only provided for a written examination having 50 maximum marks. C
After holding written examination notice was issued calling the successful
candidates for interview. Although such interview was not part of the
recruitment process, a select list was published which was challenged in
the Tribunal. The Tribunal returned a finding that the manner in which
marks have been awarded in the interview to the candidates indicated D
lack of transparency. The High Court upheld the reasoning of the Tribunal
but modified the order to the extent of continuing the recruitment process
from the point it stood vitiated. This Court laid down following in
paragraphs 19 and 20:
“19. In the instant case, the rules of the game had been changed E
after conducting the written test and admittedly not at the stage
of initiation of the selection process. The marks allocated for the
oral interview had been the same as for written test i.e. 50% for
each. The manner in which marks have been awarded in the
interview to the candidates indicated lack of transparency. The
candidate who secured 47 marks out of 50 in the written test had F
been given only 20 marks in the interview while a large number of
candidates got equal marks in the interview as in the written
examination. Candidate who secured 34 marks in the written
examination was given 45 marks in the interview. Similarly, another
candidate who secured 36 marks in the written examination was G
awarded 45 marks in the interview. The fact that today the so-
called selected candidates are not in employment, is also a relevant
factor to decide the case finally. If the whole selection is scrapped
most of the candidates would be ineligible at least in respect of
age as the advertisement was issued more than six years ago.
H
1126 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 20. Thus, in the facts of this case the direction of the High Court
to continue with the selection process from the point it stood vitiated
does not require interference. In view of the above, the appeals
are devoid of merit and are accordingly dismissed. No costs.”
41. The Division Bench of the High Court is right in its conclusion
B that the selection criteria, which saw the light of the day along with
declaration of the selection result could be assailed by the unsuccessful
candidates only after it was published. Similarly, selection process which
was notified was never followed and the selection criteria which was
followed was never notified till the declaration of final result, hence, the
writ petitioners cannot be estopped from challenging the selection. We,
C thus, hold that the writ petitions filed by the petitioners could not have
been thrown on the ground of estoppel and the writ petitioners could
very well challenge the criteria of selection applied by the Commission,
which was declared by the Commission only at the time of declaration
of the final result. We, thus, answer point Nos. 1 and 2 as follows:-
D (i) The writ petitioners, who had participated in the selection are
not estopped from challenging the selection in the facts of the
present case.
(ii) The writ petitioners could have very well challenged the criteria
of selection, which was declared by the Commission only in
E the final result declared on 10.04.2010.
POINT NOS.3, 4 AND 5
42. The selection and appointment on post borne on the State
establishment provides an opportunity to citizens of public employment.
F The personnel who man the civil posts in State apart from carrying out
objectives and policies of State also serve as source of sustenance for
their families. The selection and appointment on post in the State have to
conform to the fundamental rights guaranteed to the citizens under
Articles 14 and 16. The objective of a State in selecting persons into
public service has always been to select the best and most suitable person.
G Justice O. Chinnappa Reddy, J. speaking for this Court in Lila Dhar vs.
State of Rajasthan and others, (1981) 4 SCC 159, had laid down
that open competition has been accepted universally as the gateway to
public services. In paragraphs 4 and 5 following has been laid down:
“4. The object of any process of selection for entry into a public
H service is to secure the best and the most suitable person for the
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1127
[ASHOK BHUSHAN, J.]

job, avoiding patronage and favouritism. Selection based on merit, A
tested impartially and objectively, is the essential foundation of
any useful and efficient public service. So, open competitive
examination has come to be accepted almost universally as the
gateway to public services.
“The ideal in recruitment is to do away with unfairness. B
Competitive examinations were the answer to the twin
problems represented by democracy and the requirements of
good administration. They were the means by which equality
of opportunity was to be united with efficiency.... By this means
favouritism was to be excluded and the goal of securing the C
best man for every job was to be achieved.
Open competitive examinations are a peculiarly
democratic institution. Any qualified person may come forward.
His relative competence for appointment is determined by a
neutral, disinterested body on the basis of objective evidence D
supplied by the candidate himself. No one has ‘pull’; everyone
stands on his own feet. The system is not only highly democratic,
it is fair and equitable to every competitor. The same rules
govern, the same procedures apply, the same yardstick is used
to test competence.”
E
5. How should the competitive examination be devised? The
Kothari Committee on Recruitment Policy and Selection Methods
in their report said:
“A system of recruitment almost totally dependent on
assessment of a person’s academic knowledge and skills, as F
distinct from ability to deal with pressing problems of economic
and social development, with people, and with novel situations
cannot serve the needs of today, much less of tomorrow....
We venture to suggest that our recruitment procedures should
be such that we can select candidates who can not only
assimilate knowledge and sift material to understand the G
ramifications of a situation or a problem but have the potential
to develop an original or innovative approach to the solution of
problems.”
It is now well-recognised that while a written examination
assesses a candidate’s knowledge and intellectual ability, an H
1128 SUPREME COURT REPORTS [2020] 7 S.C.R.

A interview-test is valuable to assess a candidate’s overall
intellectual and personal qualities. While a written examination
has certain distinct advantages over the interview-test there
are yet no written tests which can evaluate a candidate’s
initiative, alertness, resourcefulness, dependableness,
cooperativeness, capacity for clear and logical presentation,
B
effectiveness in discussion, effectiveness in meeting and dealing
with others, adaptability, judgment, ability to make decision,
ability to lead, intellectual and moral integrity. Some of these
qualities may be evaluated, perhaps with some degree of error,
by an interview-test, much depending on the constitution of
C the Interview Board.”
43. In the above judgment this Court has elaborately considered
the merit of selection of written examination as well as usefulness of
interview test. The above observations by this Court were quoted with
approval by the Constitution Bench of this Court in Ashok Kumar Yadav
D and others vs. State of Haryana and others, 1985(4) SCC 417. In
paragraph 23 following was laid down:
“23. This Court speaking through Chinnappa Reddy, J. pointed
out in Lila Dhar v. State of Rajasthan that the object of any
process of selection for entry into public service is to secure the
E best and the most suitable person for the job, avoiding patronage
and favouritism. Selection based on merit, tested impartially and
objectively, is the essential foundation of any useful and efficient
public service. So open competitive examination has come to be
accepted almost universally as the gateway to public services.
But the question is how should the competitive examination be
F devised? The competitive examination may be based exclusively
on written examination or it may be based exclusively on oral
interview or it may be a mixture of both. It is entirely for the
Government to decide what kind of competitive examination would
be appropriate in a given case………………”
G 44. After the advertisement of the vacancies of PTI, the
Commission issued a public notice on 28.12.2006 deciding to hold a written
examination of 200 marks and viva voce test of 25 marks to select the
best suitable candidates for 1983 posts of PTI. The public notice further
contemplated minimum qualifying marks 50% for general category and
H 45% for SC and BC and 40% for ESM. The above criteria evolved by
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1129
[ASHOK BHUSHAN, J.]

the Commission for selection on the posts was implemented by holding A
the written examination on 21.01.2007 which examination was cancelled
after receiving some complaints and reports regarding malpractices in
examination. Even though examination was cancelled but the Commission
continued with the same criteria for completing the selection which was
so notified on 11.06.2008 again in which examination on the same pattern
B
was to take place on 20.07.2008. On 30.06.2008 a type note by the
Superintendent (Recruitment-I) was prepared mentioning that the
Chairman had ordered that written test for the posts of DPE, Art and
Craft Teacher and PTI, Education Department, Haryana, scheduled to
take place, may be “cancelled on administrative reasons”. The note
dated 30.06.2008 was approved by the Chairman and he also approved C
the notice to be published for cancellation of the proposed written
examination, neither the note nor the order of Chairman approving the
note give any indication of “administrative reasons” for cancellation of
the examination. Another important change which was effected in the
criteria for selection was the notification with the approval of a note
D
dated 10.07.2008 which mentioned that the worthy Chairman had issued
oral direction that in respect of advertisement No.6 of 2006 Category
No.23, candidates are required to be short-listed 8 times of the vacancy
and called for interview. Short-listing was to be done on the percentage
of the marks of the candidates with minimum percentage mentioned
therein. The Chairman on 11.07.2008 approved the notice to be published E
in the Newspapers with detail regarding short-listing of the candidate’s
category wise with minimum percentage. The above criteria was also
given up when another note dated 31.07.2008 was approved by the
Chairman where the Chairman decided that all the eligible candidates
be called for interview changing the earlier criteria.The interview was
F
fixed between 02.09.2008 and 17.10.2008 and the candidates were
interviewed by eight Committees.
45. The above sequence of events indicates that in accordance
with the “special instruction” extracted above the Commission decided
the criteria for calling the candidates for the selection as holding of written
examination of 200 marks and interview for 25 marks which was the G
perfect criteria looking to the number of the candidates i.e. 20836 who
had applied in pursuance of the advertisement for the post of PTI. The
criteria was implemented by holding a written test on 21.07.2007 which
was cancelled due to some complaints. The written test was again notified
for 20.07.2008 which was withdrawn by notice published on 30.06.2008, H
1130 SUPREME COURT REPORTS [2020] 7 S.C.R.

A the earlier criterion was given a go bye by another notification dated
11.07.2008. The above indicates that the standard on which candidates
are to be screened for selection was downgraded by Chairman of his
own.When the number of candidates who applied against certain posts
are enormously large, short-listing has always been treated as an accepted
mode to correctly value the work and merit of the candidate. The Division
B
Bench of the High court on the alteration of the mode of selection as
noticed above has made following observation in paragraph 37 of the
judgment:
“(37) Thus, even accepting the appellants’ plea that
‘selection criteria’ or ‘mode of selection’ can be altered midstream
C to short-list the candidates with higher merit, here is a case where
the alterations have been designed with the sole object of
downgrading and not upgrading the standards of selection to public
employment.
Was the Chairman competent to take policy decisions like
D ‘selection criteria’ or ‘mode of selection’?
46. As per the notification extracted above it is the Commission,
who “shall devise the mode of selection and fix the criteria for selection.”
The said power has to be exercised in a reasonable and fair manner to
advance the purpose and object of selection. Even if it is assumed for
E the sake of the argument that the Commission can change the criteria of
selection from time to time, the said power has to be exercised not in an
arbitrary manner.
47. We may in this context refer to three-Judge Bench judgment
of this Court in Tamil Nadu Computer Science BED Graduate
F Teachers Welfare Society(1) vs. Higher Secondary School
Computer Teachers Association and others, 2009(14) SCC 517.
In the above case Computer instructors were appointed on contract
basis to various Schools. The Government decided to hold a special test
by the Teacher Recruitment Board for selection of computer instructors.
G On 10.10.2008 the State Government took decision that minimum
qualification marks would be 50%. Special Recruitment Test was
announced as 12.10.2008. On the night of 12.10.2008 a list of candidates
for appointment to the post of computer instructors based on the special
recruitment test was put on the Internet. While publishing the said marks
of the candidates, it was made clear that all candidates who have secured
H 35% marks in the test would be called for certificate verification. The
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1131
[ASHOK BHUSHAN, J.]

State Government reduced the minimum qualifying marks to 35%. This A
Court did not approve the reduction of qualifying marks from 50% to
35%. Following was laid down in paragraph 33:
“33. We, however, cannot hold that the subsequent decision of
the Government thereby changing qualifying norms by reducing
the minimum qualifying marks from 50% to 35% after the holding B
of the examination and at the time when the result of the
examination was to be announced and thereby changing the said
criteria at the verge of and towards the end of the game as justified,
for we find the same as arbitrary and unjustified. This Court in
Hemani Malhotra v. High Court of Delhi,(2008) 7 SCC 11, has
held that in recruitment process changing rules of the game during C
selection process or when it is over are not permissible.
48. Learned counsel for the appellant has submitted that judgments
of this Court laying down the criteria for selection cannot be changed
during the course of selection has been referred to a larger Bench by a
judgment of this Court in Tej Prakash Pathak and others vs. Rajasthan D
High Court and others, 2013 (4) SCC 540, hence the judgment of
this Court laying down the criteria cannot be changed during the course
of the selection is yet to be tested. For the purposes of the present case
we proceed on the assumption that even if the criteria can be changed
by selecting body from time to time, the said change cannot be affected E
arbitrarily. The present is a case where change in criteria has been
affected and altered arbitrarily with the object of down-grading and not
up-grading the standards of selection. The High Court did not commit
any error in not upholding the change of criteria effected after start of
selection process with which finding we fully concur.
F
49. The notifications issued under proviso to Article 309 of the
Constitution of India specifically provides that the Commission shall devise
the mode of selection and fix the criteria for selection of posts. The
power to devise the mode of selection and fix the criteria was, thus,
entrusted to the Commission. Commission is a multi-member body, which
acts collectively. The Commission in the counter affidavits filed before G
High Court or this Court has not brought any rules or resolution of the
Commission by which power of the Commission to devise the mode of
selection and fix the criteria have been delegated to any other member
including the Chairman. In Principles of Administrative Law, M.P.
Jain & S.N. Jain, 6th Edition, writes in Chapter XXII states:- H
1132 SUPREME COURT REPORTS [2020] 7 S.C.R.

A “When power is conferred on a multi-member body, the power
ought to be exercised by the concerned body; the power cannot
be exercised either by the chairman alone or by one of its
members. This can be done only if the body concerned delegates
power to the chairman or a single member to discharge certain
functions on its behalf.”
B
50. When there are no statutory rules regarding allocation of
business of the Commission or delegating its business to members or
Committee, the Commission could very well by its resolution devise its
own mode of exercising such power or function, which preposition has
been laid down by this Court by a Constitution Bench in Naraindas
C Indurkhya Vs. The State of Madhya Pradesh and Others, (1974)
4 SCC 788 wherein in paragraph 17 following was stated:-
17.……………………… Now we do not dispute the general
proposition that when a power or function is given by the statute
to a corporate body and no provision is made in the statute as to
D how such power or function shall be exercised, the corporate
body can by a resolution passed at the general meeting devise its
own mode of exercising such power or function, such as authorising
one or more of the members to exercise it on behalf of the
Board…………………”
E 51. The Division Bench of the High Court after pursuing the original
records, which was summoned by it from the Commission has returned
a finding that the decision of the Commission dated 30.06.2008, 11.07.2008
as well as 31.07.2008 have all been taken by the Chairman alone, which
was proved from original records containing the relevant notes and
F approval by the Chairman. The alteration of criteria, thus, was sole handi-
work of the Chairman, which decision was not the decision of the
Commission. It is not even claimed in the affidavit filed before the High
Court or before this Court that said decisions were decisions taken by
the Commission. The conclusion is, thus, inescapable that criteria for
conducting selection for the post of PTI as was published on 28.12.2006
G was altered by the Chairman step by step completely giving a go bye to
the method of merit selection. The statutory notifications when entrust
the Commission to devise the mode of selection and fix the criteria and
the Commission being multi-member body, Chairman alone was not
competent to alter the mode of selection and the criteria, which was
H fixed and published for conducting the selection for the post of PTI.
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1133
[ASHOK BHUSHAN, J.]

52. Now, we come to the decision dated 03.08.2008, which was a A
decision fixing the criteria for selection signed by all the members of the
Commission, the High Court after minutely looking into the original records
has held that in the original records, which was produced before the
High Court by the Commission, there is no mention of the criteria for
making selection dated 03.08.2008 nor the said one page decision was
B
part of the original records. The said one-page decision was separately
produced before the High Court and before us. Learned counsel for the
Commission have placed that one-page decision in an envelope before
us also which we have also perused. The Division Bench of the High
Court in paragraph 42 has dealt with the decision dated 03.08.2008 and
has affirmed the findings of the learned Single Judge that the said decision C
dated 03.08.2008 was prepared only when learned Single Judge directed
the Commission to produce the criteria of selection. Division Bench of
the High Court has given weighty reasons for not accepting the claim
set up by the Commission that criteria was fixed on 03.08.2008 as claimed.
The observations of the High Court in paragraphs 41 and 42 are to the
D
following effect:-
“(41) It is unfortunate that instead of reversing his unlawful
decisions, taken by side-tracking eight other Members (as it was
a nine-Member body since 21.06.2007), the Chairman involved
those other Members in a mock-drill and flashed a surprise on the
learned Single Judge by producing the magical ‘single loose sheet’ E
of their purported decision dated 03.08.2008 laying down the
‘criteria for selection’.
(42) We have also perused the decision dated 03.08.2008 produced
in a sealed envelope. We firmly affirm the findings returned by
the learned Single Judge to discard the same. We say so for the F
reasons that (i) various administrative decisions whether taken by
the Commission as a multi-Member body (only one such decision
found in the Files) or by the Chairman contained in the Files
produced before us, are preceded by an ‘Office Note’ or ‘proposal’
and are invariably forwarded by the Secretary of the Commission; G
(ii) the original record of decisions taken by the Chairman in the
last week of September, 2008 or in first week of October, 2008 do
not even whisper about any meeting of the Commission held on
03.08.2008 or the decision taken therein; and (iii) the unusual
manner in which the ‘loose sheet’ has been prepared casts a
H
1134 SUPREME COURT REPORTS [2020] 7 S.C.R.

A serious doubt on its genuineness. The so-called decision dated
03.08.2008 was thus apparently contrived to defeat the cause of
the writ-petitioners and to mislead the learned Single Judge, who
has rightly held that it was only when he directed to produce the
criteria of selection that this ‘loose sheet’ “was prepared and
produced in Court”.”
B
53. We fully concur with the above findings of the High Court
with regard to decision dated 03.08.2008. It is, thus, proved that decision
dated 03.08.2008 was prepared by the Commission subsequent to
declaration of the result and only when the learned Single Judge directed
the Commission to produce the criteria under which the selection for the
C post of PTI was undertaken.
54. As noted above the decision of Chairman of the Commission
dated 30.06.2008 not to hold the written examination was claimed to
have been taken due to “administrative reasons”, but what were
“administrative reasons” have never been disclosed or brought on record
D by the Commission. The decision to change the selection process as
notified on 28.06.2006 was a major decision not only affecting the
applicants who had to participate in the selection on the basis of criteria
as notified on 28.12.2006 but had adverse effect on merit selection as
devised for 1983 posts of PTI.
E 55. As per advertisement dated 20.07.2006, the Commission had
published the criteria for selection on 28.12.2006 which was implemented
also, hence, there was no occasion to give up the merit selection in
midway. Further, when no reasons are forthcoming to support the so
called ‘administrative reasons’ in the decision dated 30.06.2008 which
F was so stated by Chairman for the scrapping the written test, we have
to hold the said decision arbitrary and without reason. The written test
consisting of 100 objective type of multiple choice questions out of which
60 questions relating to academic knowledge of the respective subjects
including skill and method of teaching ability and 40 questions relating to
general knowledge, general English and Hindi upto matric standard was
G well thought screening test, easy to conduct and easy to evaluate. The
Commission being recruiting body abdicated its obligation of screening
out the best candidates; The competitive examination, are means by
which equality of opportunity was to be united with efficiency. By the
above method favouritism was to be excluded and the goal of securing
H
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1135
[ASHOK BHUSHAN, J.]

the best man for the job was to be achieved. We, thus, conclude that A
decision dated 30.06.2008 for not holding the written examination and
steps taken consequent thereto were all arbitrary decisions, unsustainable
in law.
56. At this stage we may note one more submission of Shri Kapil
Sibal. Shri Sibal submits that when the Commission published notice B
dated 30.06.2008 that no written test shall be held, the writ petitioners
ought to have challenged the above decision and the petitioners should
have insisted that written examination may be held. They having not
raised any challenge, at this stage, cannot be permitted to say that written
test ought to have been held.
C
57. We having held that change in criteria of selection was never
notified by the Commission and about the change in process of selection
candidates were kept in total dark and for the first time the criteria
applied in selection process was published along with result dated
10.04.2008, the writ petitioners cannot be estopped in challenging the
arbitrary criteria so applied. The submission of Shri Sibal cannot be D
accepted. The petitioners have never questioned the criteria which was
published on 28.12.2006 i.e. written test of 200 marks and viva voce of
25 marks, merely because they participated in the process of selection
after the change of criteria, their right to challenge the arbitrary change
cannot be lost. Estopping the petitioners from challenging the change of E
criteria will be giving seal to arbitrary changes affected by Chairman as
noted above.
58. In view of the foregoing discussions, we answer point Nos.3,4
and 5 in following manner: -
Ans.3: F
The decisions dated 30.06.2008, 11.07.2008 and 31.07.2008 were
arbitrary decisions without any reason to change the selection criterion
published on 28.12.2006 which have effect of downgrading the merit in
the selection.
G
Ans.4:
The Commission being a multi-member body, all decisions
pertaining to mode of selection and criteria was to be taken by the
Commission itself, there being no rules or resolution delegating the said
power to Chairman or any other member.
H
1136 SUPREME COURT REPORTS [2020] 7 S.C.R.

A The decision of not holding written examination dated 30.06.2008,
decision to screen on the basis of eight times of vacancies and percentage
of marks dated 11.07.2008 and decision dated 31.07.2008 to call all eligible
candidates, were all decisions taken by the Chairman himself, which
decisions cannot be said to be decisions of the Commission.
B Ans.5:
The decision dated 03.08.2008 was never taken on 03.08.2008 as
claimed and the said resolution was prepared subsequent to declaration
of the result when the learned Single Judge asked for criteria of the
selection, which was produced in a separate loose sheet signed by all
members.
C
Point No.6
59. Shri Kapil Sibal, learned senior counsel has emphatically
submitted that in the writ petitions, there are no allegations of mala fide
against the Chairman or any member of the Commission and further
neither Chairman nor any members being impleaded as party respondent
D
by the writ petitioner, the petitioners could not have challenged the
allocation of marks in viva voce and there was no basis for any claim
that marks in the viva voce of candidates having high academic
qualification were deliberately reduced and those, who had poor academic
records were deliberately given marks between 20 to 27 in the viva
E voce. Shri Kapil Sibal has placed reliance on judgment of this Court in
Ratnagiri Gas and Power Private Limited Vs. RDS Projects
Limited and Others, (2013) 1 SCC 524, where this Court has laid
down that the law casts a heavy burden on the person alleging mala
fides. This Court has further laid down that when the petitioners alleges
malice in fact, it is obligatory for the petitioner to furnish particulars and
F implead the persons against whom such malice in fact is alleged. In
paragraphs 25, 26.1, 26.2 and 27, following has been laid down:-
“25.………………….The law casts a heavy burden on the person
alleging mala fides to prove the same on the basis of facts that
are either admitted or satisfactorily established and/or logical
G inferences deducible from the same. This is particularly so when
the petitioner alleges malice in fact in which event it is obligatory
for the person making any such allegation to furnish particulars
that would prove mala fides on the part of the decision-maker.
Vague and general allegations unsupported by the requisite
H
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1137
[ASHOK BHUSHAN, J.]

particulars do not provide a sound basis for the court to conduct A
an inquiry into their veracity.
XXXXXXXXXXXXXXXX
26.1. In State of Bihar v. P.P. Sharma, 1992 Supp. (1) SCC
222, this Court summed up the law on the subject in the following
words: (SCC p. 260, paras 50-51) B
“50. ‘Mala fides’ means want of good faith, personal bias,
grudge, oblique or improper motive or ulterior purpose. The
administrative action must be said to be done in good faith, if it
is in fact done honestly, whether it is done negligently or not.
An act done honestly is deemed to have been done in good C
faith. An administrative authority must, therefore, act in a bona
fide manner and should never act for an improper motive or
ulterior purposes or contrary to the requirements of the statute,
or the basis of the circumstances contemplated by law, or
improperly exercised discretion to achieve some ulterior
purpose. The determination of a plea of mala fide involves two D
questions, namely, (i) whether there is a personal bias or an
oblique motive, and (ii) whether the administrative action is
contrary to the objects, requirements and conditions of a valid
exercise of administrative power.
51. The action taken must, therefore, be proved to have E
been made mala fide for such considerations. Mere
assertion or a vague or bald statement is not sufficient. It
must be demonstrated either by admitted or proved facts and
circumstances obtainable in a given case. If it is established
that the action has been taken mala fide for any such F
considerations or by fraud on power or colourable exercise of
power, it cannot be allowed to stand.”
(emphasis supplied)
26.2. We may also refer to the decision of this Court in Ajit Kumar
Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 where the G
Court declared that allegations of mala fides need proof of high
degree and that an administrative action is presumed to be bona
fide unless the contrary is satisfactorily established. The Court
observed: (SCC p. 790, para 56)
H
1138 SUPREME COURT REPORTS [2020] 7 S.C.R.

A “56. … It is well settled that the burden of proving mala fide is
on the person making the allegations and the burden is ‘very
heavy’. (Vide E.P. Royappa v. State of T.N., (1974) 4 SCC
3) There is every presumption in favour of the administration
that the power has been exercised bona fide and in good faith.
It is to be remembered that the allegations of mala fide are
B
often more easily made than made out and the very seriousness
of such allegations demands proof of a high degree of credibility.
As Krishna Iyer, J. stated in Gulam Mustafa v. State of
Maharashtra, (1976) 1 SCC 800 (SCC p. 802, para 2): ‘It
(mala fide) is the last refuge of a losing litigant.’”
C 27. There is yet another aspect which cannot be ignored. As and
when allegations of mala fides are made, the persons against whom
the same are levelled need to be impleaded as parties to the
proceedings to enable them to answer the charge. In the absence
of the person concerned as a party in his/her individual capacity it
D will neither be fair nor proper to record a finding that malice in
fact had vitiated the action taken by the authority concerned. It is
important to remember that a judicial pronouncement declaring
an action to be mala fide is a serious indictment of the person
concerned that can lead to adverse civil consequences against
him.……………………….”
E
60. There cannot be any dispute to the above preposition of law
reiterated by this Court as above. We have noticed from the array of
the parties in the writ petition that neither Chairman nor the members of
the Commission were personally impleaded nor there are any specific
allegations of mala fide against the Chairman or the members of the
F Commission.
61. The present is not a case of malice in fact. The “malice in
fact” and “malice in law” are two well-known concepts in law. In
Ratnagiri Gas and Power Private Limited (supra), this Court has
dealt with both the concepts, i.e., “malice in fact” and “malice in law”.
G Dealing with the conceptual difference between “malice in fact” and
“malice in law”, this Court laid down following in paragraphs 30, 31 and
32:-
“30.……………………….The conceptual difference between
the two has been succinctly stated in the following paragragh by
H Lord Haldane in Shearer v. Shields, 1914 AC 808 (HL) quoted
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1139
[ASHOK BHUSHAN, J.]

with approval by this Court in ADM, Jabalpur v. Shivakant A
Shukla, (1976) 2 SCC 521: (SCC p. 641, para 317)
“317. … ‘Between “malice in fact” and “malice in law” there
is a broad distinction which is not peculiar to any system of
jurisprudence. The person who inflicts a wrong or an injury
upon any person in contravention of the law is not allowed to B
say that he did so with an innocent mind. He is taken to know
the law and can only act within the law. He may, therefore, be
guilty of “malice in law”, although, so far as the state of his
mind was concerned he acted ignorantly, and in that sense
innocently. “Malice in fact” is a different thing. It means an
actual malicious intention on the part of the person who has C
done the wrongful act.’” (Shearer case, 1914 AC 808 HL,
AC pp. 813-14)
31. Reference may also be made to the decision of this Court in
State of A.P. v. Goverdhanlal Pitti, (2003) 4 SCC 739 where
the difference between “malice in fact” and “malice in law” was D
summed up in the following words: (SCC p. 744, paras 12-13)
“12. The legal meaning of ‘malice’ is ‘ill will or spite towards
a party and any indirect or improper motive in taking an action’.
This is sometimes described as ‘malice in fact’. ‘Legal malice’
or ‘malice in law’ means ‘something done without lawful E
excuse’. In other words, ‘it is an act done wrongfully and
wilfully without reasonable or probable cause, and not
necessarily an act done from ill feeling and spite. It is a
deliberate act in disregard of the rights of others.’ (See Words
and Phrases Legally Defined, 3rd Edn., London, Butterworths, F
1989.)
13. Where malice is attributed to the State, it can never be
a case of personal ill will or spite on the part of the State.
If at all it is malice inlegal sense, it can be described as an
act which is taken with an oblique or indirect object.” G
(emphasis supplied)
32. To the same effect is the recent decision of this Court in Ravi
Yashwant Bhoir v. Collector, (2012) 4 SCC 407 wherein this
Court observed: (SCC p. 431, paras 47-48)
H
1140 SUPREME COURT REPORTS [2020] 7 S.C.R.

A “Malice in law
47. This Court has consistently held that the State is under an
obligation to act fairly without ill will or malice in fact or in law.
Where malice is attributed to the State, it can never be a case
of personal ill will or spite on the part of the State. ‘Legal
B malice’ or ‘malice in law’ means something done without lawful
excuse. It is a deliberate act in disregard to the rights of others.
It is an act which is taken with an oblique or indirect object. It
is an act done wrongfully and wilfully without reasonable or
probable cause, and not necessarily an act done from ill feeling
and spite.
C
48. Mala fide exercise of power does not imply any moral
turpitude. It means exercise of statutory power for ‘purposes
foreign to those for which it is in law intended’. It means
conscious violation of the law to the prejudice of another, a
depraved inclination on the part of the authority to disregard
D the rights of others, where intent is manifested by its injurious
acts. Passing an order for unauthorised purpose constitutes
malice in law. (See ADM, Jabalpur v. Shivakant Shukla,
(1976) 2 SCC 521,Union of India v. V. Ramakrishnan, (2005)
8 SCC 394 and Kalabharati Advertising v. Hemant
E Vimalnath Narichania, (2010) 9 SCC 437.)”
62. The malice in law has been dealt as “something done without
lawful excuse”. The malice in law is also mala fide exercise of power,
exercise of statutory power for purposes foreign to those for which it is
in law intended. In the present case, the power to device the mode of
F selection and fix the criteria for selection was entrusted on the Commission
to further the object of selection on merit to fill up post in State in
consonance with the provisions of Articles 14 and 16 of the Constitution
of India.When the alteration of criteria has been made, which has
obviously affected the merit selection as we have found above, the
allegations which have been made in the writ petition against the
G Commission in conducting the selection are allegations of malice-in-law
and not malice-in-fact.
63. The High Court had summoned the original records of the
Commission including the marks awarded to the candidates both on basic
qualification as well as essential qualification as well as viva voce. The
H
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1141
[ASHOK BHUSHAN, J.]

observations, which have been made by the Division Bench in paragraphs A
34 and 36 were inferences drawn by the High Court based on pattern of
the marks allocated to some of the selected candidates and non-selected
candidates. The observation of the High Court that “it cannot be a mere
co-incidence that 90% of the meritorious candidates in academics
performed so poorly in viva voce that they could not secure even 10
B
marks out of the 30 marks or that the brilliance got configurated only in
the average candidates possessing bare eligibility” where inferences
drawn from result sheet and re-affirms the allegations of malice-in-law.
The inferences drawn by the High Court, thus, cannot be said to be
unfounded nor are based on no material or perverse so as to call for any
interference by this Court in these appeals. We, thus, do not find any C
substance in the submission of Shri Sibal that since no specific allegations
against Chairman and members have been made and they being not
impleaded as the parties, the allegations in the writ petition regarding
allocation of marks in viva voce cannot be looked into by the High Court.
Point No.6 is answered accordingly.
D
Point No.7
64. The learned Single Judge in the impugned judgment while
allowing the writ petition issued following directions: -
“These writ petitions are thus allowed. The purported selection
made by the Haryana Staff Selection Commission in pursuance E
to the advertisement No.6/2006, result whereof was published on
11.4.2010 relating to category No. 23 for the posts of PTIs, is
hereby quashed. A direction is issued to the Haryana Staff Selection
Commission to hold a fresh selection, in accordance with law,
within a period of five months from the date of receipt of certified F
copy of this order.”
65. Learned counsel appearing for the Commission and for the
State of Haryana submitted that no fresh selection canbe conducted on
the post of PTI in view of the statutory rules namely, Haryana School
Education State Cadre Service Rules, 2012, he submits that in the affidavit, G
which has been filed by the Commission on 11.02.2020, in paragraph 4,
following has been stated:-
“4. That so far, the details of the vacancies existing as on date in
the relevant PTI Cadre, the Haryana Staff Selection Commission
wrote a letter to Department of School Education to get the status
H
1142 SUPREME COURT REPORTS [2020] 7 S.C.R.

A of existing vacancies in PTI Cadre. In response to above said
letter, the Department of School Education provided the following
response and the operative part of said response is reproduced as
follows:-
“In this regard, it is submitted that the Classical & Vernacular
B (C&V) cadre which includes the appointment of PTI also has
been declared diminishing cadre by the Government of Haryana
by way of notifying the Haryana School Education (Group-C)
State Cadre Service Rule, 2012 vide notification No.GSR-12/
Const./Art.309/2012 dated 11.04.2012. The operative part of
these rules, defined in Rule-9(5) is relevant to be detailed herein:-
C
The present Classical & Vernacular (C&V) cadre consisting
of the posts of Sanskrit Teachers, Hindi Teachers, Punjabi
Teachers, Physical Training Instructors (PTIs), Art & Craft
Teachers (Drawing Teachers), Tailoring Teachers and Tabla
Players and governed by the Haryana State Education School
D Cadre (Group C) Service Rules, 1998 shall be converted to
TGT in relevant subject and no further requirement shall be
made to these categories when the present incumbent on the
notification of these rules vacate the post on his promotion,
retirement or any other purpose.
E Since all the vacancies which were in existence on 11.04.2012
have already been converted in TGT cadre and further the
vacancy came into existence due to promotion, retirement or
any other ground of a PTI has also got converted in TGT cadre,
therefore, there exists no post of PTI now.
F The latest status of vacancies of PTI is submitted for
consideration and further action thereon.”
66. Elaborating his submission, learned counsel submits that the
post of PTI is a dying cadre and now under Rules, 2012, there is post of
TGT (Physical Education), which has higher qualifications, i.e., Graduate
G with Physical Education from a recognised university. He submits
that all posts of PTI have been converted into TGT, thus, fresh selection,
if any, can be only on the post of TGT (Physical Education). He has also
referred to Rule 9(5) of Rules, 2012, which is to the following effect:-
“9(5). The present Classical & Vernacular (C&V) Cadre consisting
H of the posts of Sanskrit Teachers, Hindi Teachers, Punjabi
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1143
[ASHOK BHUSHAN, J.]

Teachers, Physical Training Instructors (PTIs), Art & Craft A
Teachers (Drawing Teachers), Tailoring Teachers and Tabla
Players and governed by the Haryana State Education School
Cadre (Group C) Service Rules, 1998 shall be converted to TGT
in relevant subject and no further recruitment shall be made to
these categories when the present incumbent on the notification
B
of these rules vacate the post on his promotion, retirement or any
other purpose.”
67. Rule 2(h) defines TGT in following words:-
“(h) “TGT” means Trained Graduate Teacher in the relevant
subject appointed after notification of these rules and shall C
include masters appointed before notification of these rules;”
68. Rule 9(1) deals with recruitment in the services. Rule 9(1)(j),
which is relevant for the present case as follows:-
“(j) in the case of TGT Physical Education (PT Master),-
D
(i) 67% by direct recruitment on contract basis; and
(ii) 33% by Promotion from PTIs; or
(iii) by transfer or deputation of anofficial already in service of
any State Government, Government of India; “
69. When the rule contemplates filling up of the post of TGT E
(Physical Education) by 33% by promotion from PTI, PTI continues in
the establishment, who can be promoted as TGT (Physical Education).
The submission cannot be accepted that all PTI in block have been
upgraded as TGT (Physical Education). Had the rule contemplated such
result, there was no question of filling up TGT (Physical Education) by F
33% by promotion from PTI. This court had occasion to examine Rules,
2012 in State of Haryana and Another Vs. Sandeep Singh and
Others, (2019) 6 SCC 453. A writ petition was filed in the High Court
by a teacher occupying the post of Drawing Teacher, he claimed that
Drawing Teacher has been converted into Trained Graduated Teacher
(TGT) under Rule 9(5), hence, the writ petitioners were also entitled to G
be promoted from the day their juniors were promoted as Trained
Graduate Teachers. This Court examined the Scheme of Rules, 2012
elaborately and following was laid down in paragraphs 19 and 20:-
“19. The entire argument of the appellants is based upon the
expression used that C&V teachers governed by the 1998 Rules H
1144 SUPREME COURT REPORTS [2020] 7 S.C.R.

A shall be “converted to TGT in relevant subject”. The question
is whether such C&V teachers stand upgraded to the post of
TGT though, their promotion channel under the 1998 Rules was
to the post of Master which alone has been treated as TGT as
defined in Rule 2(h) of the 2012 Rules and in view of express
language of Rule 7 which mandates that the appointment shall be
B
made to the post of TGT only in accordance with the qualifications
prescribed in the 2012 Rules.
20. The reading of the Rules would show that C&V teachers are
treated to be TGT so as to avoid anomalous situation where the
C&V teachers after the commencement of the 2012 Rules would
C not be governed by any set of Rules. Therefore, the expression
that such C&V teachers stand converted to TGT is only to facilitate
their service conditions to be governed by the 2012 Rules rather
than to upgrade the C&V teachers as members of TGT cadre.
The feeder and the promotional cadre cannot be treated on a par
D by virtue of the expression used in Rule 9(5) of the 2012 Rules
that the C&V teachers shall be converted to TGT. Such conversion
is only for a limited purpose of the 2012 Rules being extended to
them and that such C&V teachers do not become member of the
“cadre” eligible for promotion as Elementary School Headmaster.
Rule 9(5) of the 2012 Rules does not use the word “cadre”.
E Therefore, such teachers cannot be treated to be part of TGT
cadre. Such interpretation is further supported by the fact that
C&V Teacher is a dying cadre and no further recruitment is to be
made in these categories.”
70. This Court in the above judgment has held that there is no
F automatic conversion, upgradation of C&V Teachers into TGT and only
to facilitate their service conditions, they are to be governed by Rules,
2012.
71. We in the present case are concerned with a selection, which
was undertaken in pursuance of advertisement No.6/2006 for 1983 posts
G of PTI, result of which selection was declared on 10.04.2010. Challenge
was made to the said selection in various writ petitions, which writ petitions
were allowed by learned Single Judge vide judgment dated 11.09.2012.
The selection dated 10.04.2010 was set aside, quashed and the
Commission was directed to hold a fresh selection within a period of
H five months. When the selection was set aside for the post of PTI, the
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1145
[ASHOK BHUSHAN, J.]

fresh selection ought to be held as per the advertisement No.6/2006 and A
process of recruitment initiated with the advertisement No.6/2006 has
to be brought to its logical end and for the purpose of selection in pursuance
of advertisement No.6/2006, Rules, 2012 shall not come into way. We
may also notice Rule 20 of Rules, 2012, which is to the following effect:-
“20. The Haryana State Education School Cadre (Group-C) B
Service Rules, 1998, amended from time to time in so far as they
are applicable to the posts included in the Service are hereby
repealed:
Provided that any order made or action taken under the
rules so repealed shall be deemed to have been made or taken C
under corresponding provisions of these rules.”
72. The selection on the post of PTI vide advertisement No.
6/2006 was under the statutory rules then existing and selection process,
which has been initiated under erstwhile rules was to be continued and
had not to be scrapped as is clear from the Scheme of Rules, 2012. In D
any view of the matter, when the selection for 1983 posts of PTI was
set aside and the High Court directed to hold a fresh selection, the selection
process was to be continued and completed under the orders of the
High Court. We, thus, reject the submission of the learned counsel for
the Commission and the State that fresh selection cannot be held as per
direction of the learned Single Judge affirmed by the Division Bench. E
We, however, are of the view that selection initiated vide advertisement
No.6 of 2006has to be proceeded further from the stage the criterion
was arbitrarily changed by the Chairman. The completion of selection
has to be only from amongst the candidates who had applied against
post of PTI, including those who were selected. F
73. The learned Single Judge after quashing the select list published
on 11.04.2010 directed for fresh selection on post of PTI. The learned
Single Judge, however, did not issue appropriate consequential directions
for holding the fresh selection. There was no defect in the advertisement
dated 20.06.2006 and mode of selection as envisaged by public notice G
dated 28.12.2006. The arbitrariness crept thereafter from the stage of
scrapping the written test scheduled to take place on 20.07.2008. The
directions ought to have been issued to complete the process from that
stage i.e. the stage of holding the written test. All the candidates who
had applied for the post of PTI including those selected, ought to have
been permitted to take the written test. We need to clarify that in the H
1146 SUPREME COURT REPORTS [2020] 7 S.C.R.

A facts of the present case there was no requirement of fresh advertisement
and inviting fresh applications. In the event fresh applications are called,
large number of applicants who participated in the selection would have
become over age. All the applicants who had applied in response to
advertisement No.6 of 2006 had right to participate in selection as per
criterion notified on 28.12.2006. The direction of learned Single Judge
B
needs modification and clarification to the above effect.
74. We may also notice one more submission of the learned counsel
for the appellant. Learned counsel for the appellant submits that in
pursuance of selection dated 10.04.2010, the appellants were appointed
and they have now continued for more than nine years and at this juncture,
C it is not equitable to throw out them from their posts. In the present case,
result of the selection dated 10.04.2010 was published on 11.04.2010
and the writ petitions were filed in May, 2010 itself, i.e., immediately.
Selection was set aside by learned Single Judge on 11.09.2012. The
continuance of the appellants is only by way of interim order. This Court
D has also passed an order on 29.11.2013 for maintaining status quo, which
order has been continued till this date. When the continuance of a person
on a post is by virtue of an interim order, the continuance is always
subject to outcome of the litigation. The displacement of appellants from
their posts is inevitable consequence of upholding of the judgment of the
High Court. A Constitution Bench of this Court in C. Channabasavaih
E Etc. Etc. Vs. State of Mysore and Others, AIR 1965 SC 1293 has
made following observations in paragraph 9 in such a situation, which is
beneficial to record, is as follows:-
“9. It is very unfortunate that these persons should be uprooted
after they had been appointed but if equality and equal protection
F before the law have any meaning and if our public institutions are
to inspire that confidence which is expected of them we would be
failing in our duty if we did not, even at the cost of considerable
inconvenience to Government and the selected candidates do the
right thing………………………...”
G 75. In view of the foregoing discussions and conclusions, we dispose
of these appeals with the following directions:
(i) The Commission shall conclude the entire selection process
initiated by the advertisement No.6 of 2006 as per criterion
notified on 28.12.2006 i.e. holding objective type written test
H of 200 marks and viva voce of 25 marks. All the applicants
RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR 1147
[ASHOK BHUSHAN, J.]

who had submitted applications in response to the above A
advertisement including those who were selected shall be
permitted to participate in the fresh selection as directed.
(ii) The candidates who have been selected and have worked
on the post of PTI shall not be asked to refund any of the
salary and other benefits received by them as against their B
working on the posts. No refund shall also be asked from
those candidates who after their selection worked and retired
from service.
(iii) The entire process be completed by the Commission within
a period of five months from the date Commission starts C
working after the present lockdown is over, which was the
time fixed by the learned Single Judge for completing the
process.
(iv) The costs imposed by the Division Bench in paragraph 54 of
the judgment of the High Court are deleted except the costs D
imposed on the Commission.
76. We, thus, while upholding the judgments of the High Court,
subject to the modifications as above, dispose of these appeals.
77. Before we close, we record our appreciation to learned counsel
for the parties, who have rendered valuable assistance to the Court in E
deciding these appeals.

Devika Gujral Appeals disposed of.

F

G

H