# Sanjay Kumar Philip v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1730
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-23
- **Case number:** Writ A No. 56225 of 2016
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-philip-v-state-of-u-p-ors-45563
- **Pages:** 9

## Headnote

A. Article 226 - Indian Constitution -
candidate participated in a selection
procedure without any demur has no
right to challenge it
The petitioner after participation and defeating
in the selection proceeding cannot take a U-
turn by challenging the selection proceeding.
Writ Petition rejected.

List of cases cited

## Text

1730 INDIAN LAW REPORTS ALLAHABAD SERIES
recruitment was completed and candidates
had been granted appointment prior to
01.04.2005 and getting the benefit of 'Old
Pension Scheme'.

23. Therefore, considering the facts
and circumstances of the case and legal
position discussed herein above, writ
petition is partly allowed and petitioners
are excluded from the effect and operation
of Notification dated 28.03.2005 and
07.04.2005 as it is in violation of Article
14 of Constitution of India as well as law
laid down by the Courts.

24. Respondents are directed to
include the petitioners under 'Old Pension
Scheme' as provided in Rules, 1961 before
amendment and be given all other
consequential benefits.
----------
(2020)02ILR A1730

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2020

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ A No. 56225 of 2016

Sanjay Kumar Philip ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shivendu Ojha, Sri Pankaj Kumar
Asthana, Sri R.K. Ojha, Sri Sanjay Kumar
Singh

Counsel for the Respondents:
C.S.C., Sri Anoop Baranwal, Sri Dhruv
Narayan Mishra, Sri Kaushlendra, Sri Zafar
Naiyyar, Sri Rup Narayan Misra, Sri Arun
Agrawal
A. Article 226 - Indian Constitution -
candidate participated in a selection
procedure without any demur has no
right to challenge it
The petitioner after participation and defeating
in the selection proceeding cannot take a U-
turn by challenging the selection proceeding.
Writ Petition rejected.

List of cases cited

1. Sarita Shukla V. State of U.P. Writ Petition
No. 4896 of 2015

2. Dhananjay Malik and ors. V. State of
Uttaranchal and ors Civil Appeal No. 1771 of
2008

3. Ramesh Chandra Shah and ors. V. Anil Joshi
and ors Civil Appeal No. 2802-2804 of 2013
(Delivered by Hon'ble Irshad Ali, J.)

1. Counter affidavit filed today may
be taken on record.

2. Heard learned counsel for the
petitioner, learned Standing Counsel for
the respondent nos.1, 2 and 4, Sri Anup
Barnwal, learned counsel for respondent
no.5 and Sri Rup Naraiyan Misra,
learned counsel for respondent no.6.

3. By means of the present writ
petition, the petitioner is challenging the
order dated 13.10.2016 passed by the
Director of Education (Secondary) U.P.
Lucknow. It has further been prayed to
call for the record and quash entire
selection
proceedings
of
the
post
Principal with a further direction to
initiate fresh selection proceedings in
accordance with Section 16 (FF) read
with Regulation 17 of the Regulation
framed under the U.P. Intermediate
Education Act, 1921.
2 All. Sanjay Kumar Philip Vs. State of U.P. & Ors.
1731

4. Factual matrix of the case is that
Cutting Memorial, Varanasi is an recognized
institution under U.P. Intermediate Education
Act, 1921. The institution is a minority
institution for the purposes of Article 30(1) of
the Constitution of India, thus, the provisions
of Uttar Pradesh Secondary Education
Services Selection Board Act, 1982 is not
applicable. The institution is receiving aid from
the State Government, therefore, the provisions
of U.P. High School and Intermediate Colleges
(Payment of Salaries of Teachers and other
Employees) Act, 1971, is applicable to the said
institution. Post of Principal in the aforesaid
institution came into existence due to
retirement of Sri Gilbert Susil Kumar on 30th
June 2008.

5. The Committee of Management vide
Resolution No.CM/CMIC-11(B)12-13 dated
30th August, 2012 resolved to fill up the
vacancy with the request to the Regional Joint
Director of Education to sent his nominee from
the panel of experts appointed by him. The
vacancy was advertised in two News Papers
i.e. Jan Sandesh (Hindi) and ''Pioneer'
(English) on 14.9.2012. The Regional Joint
Director of Education sent panel of expert on
08.10.2012
by
constituting
a
Section
Committee. Selection was made wherein
petitioner participated without any objection.
The Selection Committee on the basis of
quality point marks selected the respondent
no.6 on the post of Principal of the aforesaid
Intermediate college. Papers were submitted
before the Regional Joint Director of
Education for the grant of approval as required
under Section 16(FF) of the U.P. Intermediate
Education Act, 1921. The Regional Joint
Director of Education granted approval to the
selection of the respondent no.6 vide order
dated 08.11.2012.

6. The petitioner filed Writ Petitioner
No.27172 of 2016 (Sanjay Kumar Phillip Vs.
State of U.P. and 5 others) before this court
challenging the selection of the respondent
no.6 on the post of Principal of the college.
The writ petition was finally disposed of with a
direction to the petitioner to approach the
Director of Secondary Education to ventilate
his grievances with the direction to pass an
appropriate order. In pursuance of the order,
Director
of
Education
after
providing
opportunity of hearing to the petitioner and
respondent no.6 passed an order on 13.10.2016
whereby the claim of the petitioner was
rejected and the selection on the post of
Principal was held to be correct.

7. The order of Director of Education
along with the entire selection proceedings has
been assailed by the petitioner in the present
writ petition.

8. The first submission of the learned
counsel for the petitioner is that it is the
Manager of the institution who initiated
proceedings of selection on the post of
Principal of the Cutting Memorial College,
Varanasi which is in violation of Regulation 17
of the Regulations framed under the Act, 1921.
He next submitted that the selection committee
was not constituted as per the provisions
contained under the Act, 1921 and Regulation
framed thereunder, thus, the selection vitiates
in law.

9. He next submitted that the
Director of Education (Secondary) U.P.
Lucknow
without
considering
the
objection has passed the impugned order
on 13.10.2016, thus, the order vitiates in
law and cannot be sustained. His last
submission is that although, the petitioner
has participated in the selection without
any objection but has right to challenge the
same in case he is not selected in the said
selection which is completed in a arbitrary
manner.
1732 INDIAN LAW REPORTS ALLAHABAD SERIES

10. On the other hand, learned
counsel for the Committee of Management
submits that the submission advanced by
the learned counsel for the petitioner that it
is the Manager who initiated proceeding
without any resolution, is incorrect. He
submits that resolution No. CM/CMIC11(B)12-13 dated 30th June, 2008 was
passed by the Committee of Management
resolving to make selection by constituting
a Selection Committee on the post of
Principal of the concerned college. He
next submitted that once the petitioner has
participated in the selection initiated in
pursuance to the advertisement issued then
after participation defeated in the selection
he has no right to challenge the same. He
next submitted that the writ petition being
misconceived, is liable to be dismissed
with cost.

11. Sri Rup Naraiyan Misra, learned
counsel appearing on behalf of the respondent
no.6 has also adopted the argument advanced
by Sri Arun Agrawal, learned counsel
representing the Committee of Management.

12. I have heard learned counsel for the
parties and perused the material on record.

13. To resolve the controversy involved
in the present writ petition, the provisions
contained under 16-FF are being quoted
hereinbelow:

"16-FF. Savings as to minority
institutions.-(1) Notwithstanding anything in
sub-section (4) of Section 16-E, and Section
16-F, the Selection Committee for the
appointment of a Head of Institution or a
teacher of an institution established and
administered by a minority referred to in
Clause (1) of Article 30 of the Constitution
shall consist of five members (including its
Chairman) nominated by the Committee of
Management :

Provided that one of the members of
the Selection Committee shall-

(a) in the case of appointment of the
Head of an institution, be an expert selected by
the Committee of Management from a panel of
experts prepared by the Director;

(b) in the case of appointment of a
teacher, be the Head of the Institution
concerned.

(2) The procedure to be followed by
the Selection Committee referred to in subsection (1) shall be such as may be prescribed.

(3) No person selected under this
section shall be appointed, unless-

(a) in the case of the Head of
Institution the proposal of appointment has
been approved by the Regional Deputy
Director of Education; and

(b) in the case of a teacher such
proposal has been approved by the Inspector.

(4)
The
Regional
Deputy
Director of Education or the Inspector, as
the case may be, shall not withhold
approval for the selection made under this
section
where
the
person
selected
possesses
the
minimum
qualification
prescribed and is otherwise eligible.

(5) Where the Regional Deputy
Director of Education or the Inspector, as
the case may be, does not approve of a
candidate selected under this section the
Committee of Management may, within
three weeks from the date of receipt of
such disapproval, make a representation to
the Director in the case of the Head of
Institution, and to the Regional Deputy
Director of Education in the case of
teacher.

(6) Every order passed by the
Director or the Regional Deputy Director
of Education on a representation under
sub-section (5) shall be final."
2 All. Sanjay Kumar Philip Vs. State of U.P. & Ors.
1733

The provisions contained under
Regulation 17 of regulations framed under
U.P. Intermediate Education Act are being
quoted herein below:

"17. The procedure for filling up
the vacancy of the head of institution and
teachers by direct recruitment in any
recognised institution referred to in
Section 16-FF, shall be as follows:

(a) After the management has
determined the number of vacancies to be
filled up by direct recruitment, the posts
shall be advertised by the manager of the
institution in at least one Hindi and one
English
newspaper
having
adequate
circulation in the State giving particulars
as
to
the
nature
(i.e.,
whether
temporary/permanent) and number of
vacancies, descriptions of post (i.e.,
Principal or Headmaster, Lecturer or L.T.,
C.T.
or
J.T.C./B.T.C.
grade
teacher
including the subject or subjects in which
the lecturer or teacher is required), scale
or pay and other allowances, experience
required minimum qualification and age
prescribed, if any, for the post and
prescribing a date which should not
ordinarily be less than two weeks from the
date of advertisement) by which the
applications shall be received by the
Manager. A copy of the advertisement
shall be simultaneously sent to the
Inspector concerned.

Notes-(1) All vacancies in the
posts of teachers and the head of
institution
existing
at
the
time
of
advertisement shall be advertised.

(2) No new post shall be
advertised
unless
sanction
of
the
appropriate authority for the creation
thereof
has
been
received
by
the
management.

(b) All applications shall be
made in the form prescribed by the
management
and
shall
contain
all
necessary particulars about qualifications,
teaching experience and other activities
and be accompanied by certified copies of
all
the
necessary
certificates
and
testimonials. The management may charge
cost of the application form not exceeding
the amount referred to in Clause (2) of
Regulation 10.

(c) An application by a person
employed in an institution and applying
for a post elsewhere or in the same
institution shall not be withheld by his
employer but shall be forwarded to the
authority concerned immediately.

(d) All applications received
from the candidates shall be serially
numbered and entered in a register and
particulars of the candidates noted under
appropriate columns. The candidates to be
called for interview shall be seven for each
post
(the
number
of
applicants,
permitting). The Manager shall intimate
by registered post all the members of the
Selection Committee as well as all such
candidates as are called for interview, the
date, time and place of selection at least
ten days before it is held. The Selection
Committee
will
hold
the
selection
accordingly.
If
on
account
of
any
unavoidable reason, the expert selected by
the Committee of Management under
Clause (a) of the proviso to sub-section (1)
of Section 16-FF is unable to attend the
selection on the date fixed the meeting of
the
Selection
Committee
shall
be
postponed.

(e) The provisions of Clauses (e)
and (f) of Regulation 10 and those of
Regulations 11, 12 and 16 shall mutatis
mutandis apply to selections made under
this regulation.

(f) A panel of experts consisting
of fifteen or more persons selected from
category (a) referred to in Regulation 14
shall be drawn by the Director for each
1734 INDIAN LAW REPORTS ALLAHABAD SERIES
region and be sent to the Regional Deputy
Director of Education concerned, The
Regional Deputy Director of Education
shall out of the said panel communicate
the names of three experts in a sealed
cover to the management through its
Manager as soon as he receives any
request for supply of names of experts
from him. The regional panel of experts
shall, however, remain valid until it is
replaced by a new one.

14. On perusal of provisions referred
herein above, it is evident that it prescribes
full fledge procedure of initiation of
proceedings and constitution of selection
committee to make selection.

15. On perusal of the record, it is
evident that a Resolution No.CM/CMIC11(B)12-13 dated 30th June, 2008 was
passed by the Committee of Management
resolving to make selection on the post of
Principal by appointing a nominee from
the panel of experts appointed by the
Regional Joint Director of Education in the
selection
committee.
Therefore,
the
submission of learned counsel for the
petitioner that it is the decision of the
Manager of the institution to initiate
selection proceeding, cannot be accepted,
and is rejected.

16. The submission of learned
counsel for the petitioner that selection
committee was not constituted as per the
Regulations. The averment made in this
regard in the writ petition has been denied
in the counter affidavit filed by the
committee of management. According to
the provisions of Section 16-FF, five
member's committee was constituted to
make selection on the post of Principal. It
has further been stated that the selection
committee was constituted wherein one of
the nominees of the Regional Joint
Director of Education from the panel of
experts was present and thereafter, the
selection
committee
considered
the
candidature of the candidates and being
placed the respondent no.6 at serial no.1,
recommended for appointment on the post
of Principal of the College after obtaining
approval as required under Section 16-FF
of the Act of 1921. The petitioner in the
writ petition has not disclosed that which
of the provisions of the Regulations was
violated in the constitution of the selection
committed. Therefore, the submission
advanced by the learned counsel for the
petitioner in this regard is misconceived.

17. In regard to submission that
Director of Education has not considered
the claim of the petitioner while passing
the impugned order, I perused the
impugned order and on its perusal, it is
evident that by recording cogent reasons
on each objection of the petitioner, the
Director of Education found the claim of
the petitioner to be not legally sustainable
in law. Thus, the submission in this regard
is not tenable in law and is hereby
rejected.

18. The issue in regard to that if a
candidate participated in a selection
proceeding without any demur, whether he
has right to challenge the same, was
considered by this Court in Writ Petition
No.4896 of 2015; Sarita Shukla vs. State
of U.P. and others decided on 30.01.2015
and following observation has been made
in paragraph No.4:

"This Court is also of the
opinion that now after having participated
in the counselling, it is not open to the
petitioner to challenge the terms of the
advertisement and the selection procedure,
2 All. Sanjay Kumar Philip Vs. State of U.P. & Ors.
1735
of which she was fully aware. A reference
may be made to a decision of the Hon'ble
Apex Court in the case of Amlan Jyoti
Borooah vs. State of Assam and others,
(2009) 3 SCC 227, paragraph 32 of which
is quoted below:

"Appellant,
in
our
opinion,
having accepted the change in the
selection procedure sub silentio, by not
questioning the appointment of 169
candidates, in our considered opinion,
cannot now be permitted to turn round and
contend that the procedure adopted was
illegal. He is estopped and precluded from
doing so."

This case stands on a even better
footing inasmuch as there was no change
in the selection procedure in the present
case. Reference may also be made to
various other decisions of Hon'ble Apex
Court in H.V. Nirmala v. Karnataka State
Financial Corporation (2008) 7 SCC 639;
Sadananda Halo v. Mumtaz Ali Sheikh
(2008) 4 SCC 619 (para 59); Union of
India v. Vinodh Kumar and Ors. (2007) 8
SCC 100 (para 18) and Union of India v.
Chandradekaran (1998) (3) SCC 694.

In
view
of
the
aforesaid
discussion, I do not find any merit in this
petition and the same is, accordingly,
dismissed."

19. Similar view was taken by
Hon'ble Supreme Court in the case of
Dhananjay Malik and ors. vs. State of
Uttaranchal
and
ors.;
Civill Appeal
No.1771 of 2008 decided on 05.03.2008.
Paragraph No.8 and 9 of the judgment is
being quoted below:

"8. In Madan Lal vs. State of J &
K, (1995) 3 SCC 486, this Court pointed
out that when the petitioners appeared at
the oral interview conducted by the
Members concerned of the Commission
who interviewed the petitioners as well as
the contesting respondents concerned, the
petitioners took a chance to get themselves
selected at the said oral interview.
Therefore, only because they did not find
themselves to have emerged successful as
a result of their combined performance
both at written test and oral interview, they
have filed writ petitions. This Court
further pointed out 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 interview was
unfair or the Selection Committee was not
properly constituted. In the present case,
as
already
pointed
out,
the
writ
petitioners-
respondents
herein
participated in the selection process
without any demur; they are estopped from
complaining that the selection process was
not in accordance with the Rules. If they
think that the advertisement and selection
process were not in accordance with the
Rules they could have challenged the
advertisement
and
selection
process
without participating in the selection
process. This has not been done.

9. In a recent judgment in the
case of Marripati Nagaraja vs. The
Government of Andhra Pradesh, (2007) 11
SCR 506 at p.516 SCR this Court has
succinctly held that the appellants had
appeared at the examination without any
demur. They did not question the validity
of fixing the said date before the
appropriate authority. They are, therefore,
estopped and precluded from questioning
the selection process."

20. In the case of Ramesh Chandra
Shah and ors. Vs. Anil Joshi and others
decided by Hon'ble Supreme Court on
03.04.2013 in Civil Appeal Nos.2802-
1736 INDIAN LAW REPORTS ALLAHABAD SERIES
2804 of 2013 has held as under in
paragraph Nos.19 to 24:.

" 19. One of the earliest
judgments on the subject is Manak Lal v.
Dr. Prem Chand AIR 1957 SC 425. In that
case, this Court considered the question
whether the decision taken by the High
Court on the allegation of professional
misconduct leveled against the appellant
was vitiated due to bias of the Chairman
of the Tribunal constituted for holding
inquiry into the allegation. The appellant
alleged that the Chairman had appeared
for
the
complainant
in
an
earlier
proceeding and, thus, he was disqualified
to judge his conduct. This Court held that
by not having taken any objection against
the participation of the Chairman of the
Tribunal in the inquiry held against him,
the appellant will be deemed to have
waived his objection. Some of the
observations made in the judgment are
extracted below:

".........If, in the present case, it
appears that the appellant knew all the
facts about the alleged disability of Shri
Chhangani and was also aware that he
could effectively request the learned Chief
Justice to nominate some other member
instead of Shri Chhangani and yet did not
adopt that course, it may well be that he
deliberately took a chance to obtain a
report in his favour from the Tribunal and
when he came to know that the report had
gone against him he thought better of his
rights and raised this point before the
High Court for the first time.

From the record it is clear that
the appellant never raised this point before
the Tribunal and the manner in which this
point was raised by him even before the
High Court is somewhat significant. The
first ground of objection filed by the
appellant against the Tribunal's report was
that Shri Chhangani had pecuniary and
personal interest in the complainant Dr
Prem Chand. The learned Judges of the
High Court have found that the allegations
about the pecuniary interest of Shri
Chhangani in the present proceedings are
wholly unfounded and this finding has not
been challenged before us by Shri
Daphtary. The learned Judges of the High
Court have also found that the objection
was raised by the appellant before them
only to obtain an order for a fresh enquiry
and thus gain time...............

.........Since we have no doubt
that the appellant knew the material facts
and must be deemed to have been
conscious of his legal rights in that matter,
his failure to take the present plea at the
earlier stage of the proceedings creates an
effective bar of waiver against him. It
seems clear that the appellant wanted to
take a chance to secure a favourable
report from the Tribunal which was
constituted and when he found that he was
confronted with an unfavourable report, he
adopted the device of raising the present
technical point."

20. In Dr. G. Sarna v. University
of Lucknow (1976) 3 SCC 585, this Court
held that the appellant who knew about the
composition of the Selection Committee
and took a chance to be selected cannot,
thereafter, question the constitution of the
Committee.

21. In Om Prakash Shukla v.
Akhilesh Kumar Shukla (1986) Supp. SCC
285, a three-Judge Bench ruled that when
the petitioner appeared in the examination
without protest, he was not entitled to
challenge the result of the examination.
The same view was reiterated in Madan
Lal v. State of J & K (1995) 3 SCC 486 in
the following words:

"The petitioners also appeared
at the oral interview conducted by the
2 All. Sanjay Kumar Philip Vs. State of U.P. & Ors.
1737
Members concerned of the Commission
who interviewed the petitioners as well as
the contesting respondents concerned.
Thus the petitioners took a chance to get
themselves selected at the said oral
interview. Only because they did not find
themselves to have emerged successful as
a result of their combined performance
both at written test and oral interview, they
have filed this petition. 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 interview was
unfair or the Selection Committee was not
properly constituted. In the case of Om
Prakash Shukla v. Akhilesh Kumar Shukla
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 a petition challenging
the said examination, the High Court
should not have granted any relief to such
a petitioner."

22. In Manish Kumar Shahi v.
State of Bihar (2010) 12 SCC 576, this
Court reiterated the principle laid down in
the earlier judgments and observed:

"We also agree with the High
Court that after having taken part in the
process of selection knowing fully well that
more
than
19%
marks
have
been
earmarked for viva voce test, the petitioner
is not entitled to challenge the criteria or
process of selection. Surely, if the
petitioner's name had appeared in the
merit list, he would not have even dreamed
of challenging the selection. The petitioner
invoked jurisdiction of the High Court
under Article 226 of the Constitution of
India only after he found that his name
does not figure in the merit list prepared
by the Commission. This conduct of the
petitioner clearly disentitles him from
questioning the selection and the High
Court did not commit any error by
refusing to entertain the writ petition."

23. The doctrine of waiver was
also invoked in Vijendra Kumar Verma v.
Public Service Commission, Uttarakhand
and others (2011) 1 SCC 150 and it was
held:

"When the list of successful
candidates in the written examination was
published in such notification itself, it was
also made clear that the knowledge of the
candidates with regard to basic knowledge
of computer operation would be tested at
the time of interview for which knowledge
of
Microsoft
Operating
System
and
Microsoft Office operation would be
essential. In the call letter also which was
sent to the appellant at the time of calling
him for interview, the aforesaid criteria
was reiterated and spelt out. Therefore, no
minimum benchmark or a new procedure
was ever introduced during the midstream
of the selection process. All the candidates
knew the requirements of the selection
process and were also fully aware that
they must possess the basic knowledge of
computer
operation
meaning
thereby
Microsoft Operating System and Microsoft
Office
operation.
Knowing
the
said
criteria, the appellant also appeared in the
interview, faced the questions from the
expert of computer application and has
taken a chance and opportunity therein
without any protest at any stage and now
cannot turn back to state that the aforesaid
procedure adopted was wrong and without
jurisdiction."

24. In view of the propositions
laid down in the above noted judgments, it
must be held that by having taken part in
the
process
of
selection
with
full
1738 INDIAN LAW REPORTS ALLAHABAD SERIES
knowledge that the recruitment was being
made under the General Rules, the
respondents had waived their right to
question
the
advertisement
or
the
methodology adopted by the Board for
making selection and the learned Single
Judge and the Division Bench of the High
Court
committed
grave
error
by
entertaining the grievance made by the
respondents."

21. In view of the above, I am of the
considered opinion that the petitioner after
participation and defeating in the selection
proceeding cannot take U turn by
challenging the selection proceeding.

22. Accordingly, no ground has been
made out for interference in the impugned
order in exercise of power under Article
226 of the Constitution of India.

23. The writ petition lacks merit and
is hereby dismissed.
----------
(2020)02ILR A1738

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

Writ A No. 61227 of 2009

The Union of India & Ors. ...Petitioners
Versus
Indrajeet & Ors. ...Respondents

Counsel for the Petitioners:
Sri A.K. Gaur, Sri Rajnish Kumar Rai

Counsel for the Respondents:
S.C., Sri Ram Gopal Tripathi
A. Article 14 & 16 - Indian Constitution -
positive concept - respondent's claim of
parity with other selected candidates
whose services were regularized by doing
away with the typing skill qualification
requirement is against the Circulars
dated 07.04.1994 and 20.08.1997

The law as available or operating on the date
of accrual of vacancies had to be applied.
Admittedly, Board's Circular dated 07.04.1994.
which provided for promotion from Group D to
Group C Cadre was in force. Thus Railway
Board's Circular dated 07.04.1994 was already
operating which provided that typing skill is
necessary qualification and same has to be
acquired by promoted candidate. Therefore,
applicant-respondents 1 & 2 could not have
claimed exemption from aforesaid requirement
i.e., typing skill in absence of any provision
contemplating such exemption. (para 24)

B. Doctrine of sub silentio - doctrine of
per incurium - does not lay a binding law
- are exceptions to the rule of precedent
Writ Petition Allowed.
List of cases cited

1. Jai Prakash and ors V. Central Administrative
Tribunal, Allahabad Bench and ors Writ Petition
No. 65560 of 2005

2. Lancaster Motor Co. (London) Ld. V. Bremith
Ltd., (1941) KB 675

3. Gerard V. Worth of Paris Ltd. (K) (1936) 2 All
ER 905

4. 5Municipal Corporation of Delhi Vs. Gurnam
Kaur, AIR 1989 SC 38

5. State of U.P. and Anr. Vs. Synthetics and
Chemicals Ltd. and Anr., 1991(4) SCC 139

6. Arnit Das v. State of Bihar, AIR 2000 SC 2264

7. M/s. AOne Granites Vs. State of U.P. and
others, AIR 2001 SC 1203

8. Bhavnagar University Vs. Palitana Sugar Mill
Pvt. Ltd., AIR 2003 SC 511