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JUDGMENT

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2802-2804 OF 2013

(Arising out of SLP(C) Nos. 30581-30583 of 2012)

Ramesh Chandra Shah and others

… Appellants

versus

Anil Joshi and others

… Respondents

J U D G M E N T

G.S. SINGHVI, J.

1.

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.

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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

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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