IMPORTANT POINT
Having participated in selection process one cannot challenge the same.

JUDGMENT

G.S. Singhvi, J.:-Leave granted.

2. In response to an advertisement issued by the Uttarakhand Board of Technical Education (for short, ‘the Board’), which was published in the newspaper “Amar Ujala” dated 5.5.2011, the appellants and the private respondents submitted applications for the posts of Physiotherapist. All of them appeared in the written test held on 25.9.2011. The appellants were declared successful and they became entitled to be appointed against the advertised posts.

3. The private respondents, who failed to clear the test filed Civil Misc. Writ Petition No.1625/2011 for quashing the advertisement and the process of selection. They pleaded that the advertisement and the test conducted by the Board were ultra vires the provisions of the Uttar Pradesh Medical Health and Family Welfare Department Physiotherapist and Occupational Therapist Service Rules, 1998 (hereinafter described as ‘the Special Rules’).

4. In the counter affidavit filed by the official respondents, it was averred that the selection was made in accordance with the Uttarakhand Procedure for Direct Recruitment for Group “C” Posts (Outside the purview of the Uttarakhand Public Service Commission) Rules, 2008 (hereinafter described as, ‘the General Rules’). It was further averred that the writ petitioners (the private respondents herein) do not have the locus to question the advertisement and the selection process because they had submitted applications and participated in the test knowing fully well that the selection was being made in accordance with the General Rules.

5. The learned Single Judge overruled the objection taken by the official respondents by observing that the process of recruitment was vitiated due to patent illegality and, in such a case, the principle of waiver cannot be invoked for non-suiting the writ petitioners. On merits, the learned Single Judge opined that even though Rule 2 of the General Rules contains a non obstante clause, the Special Rules regulating the recruitment of Physiotherapists will prevail and the Board was not entitled to conduct the test and declare the result by relying upon the General Rules. He, accordingly, allowed the writ petition and quashed the selection with a direction that the available posts be advertised afresh.

6. On an appeal filed by some of the successful candidates, the Division Bench of the High Court held that after having taken a chance for selection, the private respondents were not entitled to question the process of selection. Notwithstanding this conclusion, the Division Bench observed that the private respondents were entitled to insist for a direction to complete the selection process by adding 30% marks for intermediate examination and 70% marks for diploma/degree examination to the marks obtained by each examinee, who appeared in the test conducted by the Board and also to declare that those who have not obtained 30% marks in diploma/degree examination are unfit. The operative portion of the judgment of the Division Bench reads as under:

“We, accordingly, allow the appeal and modify the judgment and order under appeal by upholding the quashing of concerned merit list of Physiotherapists prepared by the Board, but at the same time, direct the Board to reject all those examinees, who appeared in the examination for being appointed as Physiotherapists, but not received 30% marks in diploma examination and to complete the selection of Physiotherapists by adding to the marks obtained by the fit examinees in the written examination, 30% marks for intermediate examination and 70% marks for diploma / degree examination. Let the said exercise be completed as quickly as possible, but not later than two months from the date of service of a copy of this order upon the Board.”

7. The review applications filed by the selected candidates were dismissed by the Division Bench but the time fixed for compliance of the direction contained in judgment dated 2.5.2012 was extended.

8. Learned co