# Sri Krishna Rai and others v. Banaras Hindu University Thru' Registrar B.H.U. and others

- **Citation:** (2011) 2 ILRA 941
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-08-26
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-krishna-rai-and-others-v-banaras-hindu-university-thru-registrar-b-h-u-and-42021
- **Pages:** 13

## Headnote

942 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

Sri V.K.Singh
Sri Sunil Tripathi
S.C.

Office Procedure Manual prescribed by
Executive Council-criteria for promotion
under 25% Quota from class 4th to the
post
of
junior
clerk-seniority
with
suitability subject to passing Screening
test-no where provided for interview and
typing
test-procedure
adopted
by
Executive Council comparing unequal
with
equal-arbitrary-25
years
senior
class 4th employee can not be equated
with 10 years employee having better
qualification comparatively-selection list
quashed with direction to complete
selection process within 3 months

Held: Para 55

One more aspect also not be ignored. In
making such promotions persons totally
unequal to each other in various respects
have to be considered. A Class IV
employee who was appointed in 1977
has much longer experience of a Class IV
post but in the context of personality
and other aspects, he may not compare
with his much junior entered in service
as Class IV employee after 10, 20 or 25
years.
The
subsequent
educational
advancement also cannot be ignored. It
is
evident
that
persons
who
were
appointed
in
1977
to
1997,
i.e.
petitioners,
got
occasion
for
consideration for promotion to Class III
post after decades of service. For such
persons, making interview as a part of
selection when it was not contemplated
in the relevant procedure prescribed by
the University obviously made it difficult
for them to qualify since they may not
compete with young and youngest new
employees having better qualifications.
But one must also have considered that
they at the fag end of service to their
credit, have long experience. Better
honour and respect needed so that they
may retire from a higher post after
getting at least one promotion at the fag
end of their service. The University must
have all these facts and other relevant
aspects in mind when laid down the
procedure
in
the
Manual,
but
unfortunately the Board of Examiners
acted unmindful of wider aspects. The
acted wholly illegally by ignoring the
established procedure laid down in the
Rules and on the contrary settled their
own selection procedure by exceeding
their authority and jurisdiction.
Case law discussed:
AIR 1996 SC 352; AIR 1984 SC 541; AIR 1985
SC 1351; AIR 1987 SC 2267; (2004) 9 SCC
286; (2002) 10 SCC 359; (2007) 11 SCC 10;
(2009) 5 SCC 518; (1995) 3 SCC 486; (2002) 6
SCC 132; (2007) 9 SCC 548; (1987) 4 SCC
486; (1988) 2 SCC 242; (2000) 8 SCC 395;
1995(2) JT 291; JT 1998(1) SC 295; JT 1999
(1)SC 101; 2002 (6) SCC 127; 2003 (1) ESC
235; Special Appeal No. 1222 of 2005 Km.
Saurabh Vibhushan Vs. State of U.P. & others

## Text

_Characters 0–39,944 of 41,736. This is a partial read: ask again with offset=39944 for what follows._

2 All] Sri Krishna Rai and others V. Banaras Hindu University Thru' Registrar B.H.U. and others

941
with the matter, cannot be accepted for
the simple reason that the objection to
be entertained by the consolidation
authorities is to be based on the nature
of the rights claimed and not on the
nature
of
the
recorded
entry.
The
argument of the learned counsel for the
petitioner therefore is unsustainable.
Case law discussed:
1983 (2) RD 153; 1983 RD 299

(Delivered by Hon'ble A.P.Sahi,J. )

1. Heard learned counsel for the
petitioner Sri R.P. Dubey.

2. Sri Dubey submits that the issue
relating to the bar of Section 49 of the U.P.
Consolidation of Holdings Act, 1953, could
not have been taken into consideration by
the Board of Revenue and that even
otherwise the petitioner has perfected his
title by virtue of his long standing
possession since 1939 on the basis of a
lease. He contends that the bar of Section 49
would not operate as the consolidation
authorities have no right to adjudicate any
controversy relating to land recorded as
Banjar and for that he relies on two
decisions of this court in the case of
Ramphal & others Vs. Champat Singh &
others, 1983 (2) RD 153 and the decision in
the case of Bhillar & others Vs. Dy.
Director of Consolidation, Jaunpur &
others, 1983 RD 299.

3. Having heard Sri Dubey learned
counsel for the petitioner what transpires
from the facts on record is that the petitioner
is claiming his tenancy rights on the basis of
an alleged lease of 1939. The claim,
therefore, is founded on long standing
possession of a lease. This is a claim which
squarely falls for adjudication of such rights
within the provisions of the U.P. C.H. Act,
1953, namely, Section 4 read with Section 5
and Section 9 (A-2) thereof.

4. The contention of the petitioner is
that since the land is recorded as Banjar,
and therefore the consolidation authorities
would not have jurisdiction to proceed with
the matter, cannot be accepted for the
simple reason that the objection to be
entertained by the consolidation authorities
is to be based on the nature of the rights
claimed and not on the nature of the
recorded entry. The argument of the learned
counsel for the petitioner therefore is
unsustainable.

5. In the opinion of the court, the bar
of Section 49 would squarely apply in the
instant case and the findings recorded by the
Board of Revenue cannot be interfered with.
The decisions relied upon by the learned
counsel for the petitioner therefore would
not be applicable as explained above.

6. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition no. 37741 of 2007

Sri Krishna Rai and others ...Petitioners
Versus
Banaras Hindu University Thru' Registrar
B.H.U. and others
 ...Respondents

Counsel for the Petitioner:
Sri Ashok Mehta'
Sri Vijay Shanker

Counsel for the Respondents:
Sri Pankaj Naqvi
Sri Arun Prakash
942 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

Sri V.K.Singh
Sri Sunil Tripathi
S.C.

Office Procedure Manual prescribed by
Executive Council-criteria for promotion
under 25% Quota from class 4th to the
post
of
junior
clerk-seniority
with
suitability subject to passing Screening
test-no where provided for interview and
typing
test-procedure
adopted
by
Executive Council comparing unequal
with
equal-arbitrary-25
years
senior
class 4th employee can not be equated
with 10 years employee having better
qualification comparatively-selection list
quashed with direction to complete
selection process within 3 months

Held: Para 55

One more aspect also not be ignored. In
making such promotions persons totally
unequal to each other in various respects
have to be considered. A Class IV
employee who was appointed in 1977
has much longer experience of a Class IV
post but in the context of personality
and other aspects, he may not compare
with his much junior entered in service
as Class IV employee after 10, 20 or 25
years.
The
subsequent
educational
advancement also cannot be ignored. It
is
evident
that
persons
who
were
appointed
in
1977
to
1997,
i.e.
petitioners,
got
occasion
for
consideration for promotion to Class III
post after decades of service. For such
persons, making interview as a part of
selection when it was not contemplated
in the relevant procedure prescribed by
the University obviously made it difficult
for them to qualify since they may not
compete with young and youngest new
employees having better qualifications.
But one must also have considered that
they at the fag end of service to their
credit, have long experience. Better
honour and respect needed so that they
may retire from a higher post after
getting at least one promotion at the fag
end of their service. The University must
have all these facts and other relevant
aspects in mind when laid down the
procedure
in
the
Manual,
but
unfortunately the Board of Examiners
acted unmindful of wider aspects. The
acted wholly illegally by ignoring the
established procedure laid down in the
Rules and on the contrary settled their
own selection procedure by exceeding
their authority and jurisdiction.
Case law discussed:
AIR 1996 SC 352; AIR 1984 SC 541; AIR 1985
SC 1351; AIR 1987 SC 2267; (2004) 9 SCC
286; (2002) 10 SCC 359; (2007) 11 SCC 10;
(2009) 5 SCC 518; (1995) 3 SCC 486; (2002) 6
SCC 132; (2007) 9 SCC 548; (1987) 4 SCC
486; (1988) 2 SCC 242; (2000) 8 SCC 395;
1995(2) JT 291; JT 1998(1) SC 295; JT 1999
(1)SC 101; 2002 (6) SCC 127; 2003 (1) ESC
235; Special Appeal No. 1222 of 2005 Km.
Saurabh Vibhushan Vs. State of U.P. & others

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. 34 petitioners, working as Class-IV
employees in Banaras Hindu University
(hereinafter referred to as 'BHU'), have filed
this writ petition under Article 226 of the
Constitution of India challenging promotion
of respondents 3 to 16 vide order dated
5.6.2007 (Annexure 9) to the post of Junior
Clerk and order dated 2.7.2007 (Annexure
1) rejecting petitioners' representation.

2. Sri Ashok Mehta, Advocate, has
advanced
submissions
on
behalf
of
petitioners and Sri Sunil Kumar Tripathi,
Advocate, has appeared for BHU. None has
appeared on behalf of respondents 3 to 16.
Office report dated 18.1.2011 shows that
respondents 3, 7, 11, 12 and 13 were served
and their acknowledgments were also
received while respondents 4, 5, 6, 8, 9, 10,
14, 15 and 16 were issued notices but
neither acknowledgment nor undelivered
notice received in office. Thus under the
Rules, service upon them is deemed
sufficient. Sri Tripathi, however, told that
2 All] Sri Krishna Rai and others V. Banaras Hindu University Thru' Registrar B.H.U. and others

943
respondents 3 to 16 have authorized
University to defend them.

3. The facts in brief giving rise to the
present dispute are as under.

4. All the petitioners were appointed
on various dates between 1977 to 1997 and
presently
are
permanent
Class
IV
employees in BHU. They claim to have
passed
matriculation
or
equivalent
examination
and
are
eligible
for
consideration for promotion to the post of
Junior Clerk under 25 % promotion quota.

5. The last promotion before the
impugned one from Class IV to Class III
was made on 21.6.1982 after holding
examination on 23.12.1980. On 6.9.1995
though an advertisement was issued for
Class IV employees working in BHU
inviting applications for promotion against
25% promotion quota in Class III but it did
not proceed further.

6. Under the existing provisions,
eligibility for promotion from Class IV to
Class III is five years service, High School
qualification and passing of departmental
examination-cum-seniority.

7. A notification/advertisement was
issued on 17.12.2005 (Anneuxre 4 to the
writ petition) inviting application from
Class IV permanent employees of BHU for
appointment as Junior Clerk under 25%
promotion quota in the pay scale of Rs.
3050-4590. The eligibility prescribed in the
said notification reads as under:

"Eligibility:

All Class- IV employees, who have put
in five years services and who have passed
matriculation examination or equivalent
will be eligible for appointment as Junior
Clerk under 25% promotion quota.

Such eligible candidates will be tested
in:

A typing test in English/Hind for a
minimum of 30 words per minutes; and
after qualifying in the test.

Note: If an employee does not pass the
typing test and is otherwise eligible for
promotion he/she be promoted subject to
the condition that he/she passes the typing
test within two years from the date of
his/her promotion failing which he/she will
be reverted.

Provided
further
that
for
such
employees, typing test be held at least twice
a year.

Two papers of simple English,Hindi
and Arithmetic of one hour duration."

8. In furtherance thereof, the BHU
decided to hold a computer typing test on
20.4.2006
whereagainst
all
petitioners
represented.
The
aforesaid
test
was
postponed. BHU issued a clarification vide
letter dated 4.5.2006 stating that final merit
list shall be based on the marks obtained in
typing test, written test and interview. The
candidates may give typing test either on
computer or on manual typewriter having
option. The date of typing test accordingly
was fixed on 16.5.2006.

9. Petitioners, thereafter, made
representation on 16.6.2006 requesting
BHU to promote Class IV employees
considering their seniority. BHU, however,
promoted/appointed 14 persons on the post
of Junior Clerk from Class IV vide
appointment letters dated 5.6.2007. All the
944 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

appointment letters are identically worded
and one of such appointment letter is on
record as Anneuxre-9 to the writ petition
issued on 5.6.2007. Since seniority was
completely given a go-bye, petitioners made
representation on 12.6.2007 which has been
rejected by order dated 2.7.2007.

10. It is said that there are 242 posts of
Junior Clerk vacant out of which 62 comes
within the quota of Class IV employees but
14 have been promoted. The impugned
promotion and selection is in violation of
Clause 6.4 of Office Procedure Manual
(hereinafter referred to as 'Manual') as
prescribed
by
Executive
Council
on
2/3.4.1990 as amended on 23/24.4.1996.

11. A counter affidavit has been filed
on behalf of respondents 1 and 2 sworn by
Sri S.K. Bose, Senior Assistant. Basic facts
are not disputed. It says that procedure for
promotion is prescribed by Executive
Council's
resolution
no.
223
dated
2/3.11.1980 printed on page 27 at Clause
6.4 in Manual, 1985. It provides as under:

"6.4 Promotion of Class IV staff to
the Cadre of Junior Clerk:

(i) All Class- IV employees who have
put in five years services and who have
passed
matriculation
examination
or
equivalent will be eligible for promotion to
the post of Junior Clerk grade.

(ii) Such eligible candidates will be
tested in:-

(a) A typing test in English/Hind for a
minimum for a minimum speed of 30 words
per minute and after qualifying in the test.

Note: If an employee does not pass the
typing test and is otherwise eligible for
promotion he be promoted subject to the
condition that he passes the typing test
within two years from the date of his
promotion failing which he will be reverted.

Provided
further
that
for
such
employees, typing test be held at least twice
a year.

Two papers of simple English,Hindi
and Arithmetic of one hour's duration.

Further, the Executive Council vide
ECR No. 131 dated March 29-30, 1996 has
raised 20 to 25% of the vacancies in all
cadre of posts (Group 'C' and 'D') for
promotion
of
Group-
'D'
in-service
employees.
A
seniority-list
of
such
employees shall be prepared after passing
the Departmental test. No relaxation in
prescribed qualification shall be given for
in-service employees."

12. The total sanctioned strength of
Junior Clerks in BHU is 266 out of which
223 were lying vacant. As per U.G.C.
directions issued on 6.9.2002, 25% of
resultant vacancies are to be filled in after
approval by U.G.C. It takes care of 56
vacancies. 25% of 56 comes to 14 and that
is how promotion for 14 vacancies was
considered. Applications were invited vide
notification dated 17.12.2005 fixing last
date for submission of application forms at
16.1.2006. 385 applications were received.
A Board of Examiner was constituted by
Vice-Chancellor for undertaking typing and
written test. The aforesaid Board decided to
award maximum 20 marks for typing, 60
marks for written test and 20 for interview.
The typing test was conducted on 23.5.2006
and written test was held on 23.9.2006.
Those who secured 33 and above marks in
typing and written test were called for
interview. Thus 190 candidates were called
2 All] Sri Krishna Rai and others V. Banaras Hindu University Thru' Registrar B.H.U. and others

945
for interview held on 31.5.2007 and
1.6.2007.
Merit
list
was
prepared
accordingly by Board of Examiners. In the
light of the recommendations, appointment
letters were issued to 14 selected candidates
i.e. respondents 3 to 16. It is said that
selection has been made strictly in
accordance with guide lines of Executive
Council and there is no violation of Clause
6.4 of Manual, 1985.

13. Sri Ashok Mehta, learned counsel
for petitioner submitted that the procedure
nowhere contemplates any interview. It
talks for a departmental test whereafter
preparation of a seniority list and then those
who qualify in typing test, are to be
promoted. He submitted, the procedure
shows that typing is only a "desirable
qualification" inasmuch the same will not
deprive a person from promotion but the
condition is that one can pass typing test
before or after promotion but within two
years from the date thereof. Relaxation in
typing test is also permitted to the
employees who are above 45 years.

14. It is said that the marks of typing
test have been added in departmental test
and no seniority list has been prepared,
therefore, the entire selection has been made
illegally. He drew my attention to Anneuxre
RA-1 to the rejoinder affidavit which is
notification dated 9.12.1980 and contended
that earlier criteria for promotion was
seniority and performance in departmental
test. There was no condition of passing
typing test before promotion. On the
contrary, typing test could have been passed
even after promotion but within two years.

15. Learned counsel for BHU, on the
contrary, relied on the stand taken by
University in the counter affidavit and
submitted that the selection has been made
in accordance with procedure prescribed in
the Manual and in the light of decision
taken by Selection Committee, hence,
warrants no interference. He also stated that
respondents no. 3 to 16 have authorized the
University to take care of their interest and
the Counsel for the University may appear
on their behalf and may represent their case.
He, therefore, submitted that the stand taken
by him be construed as the stand taken by
respondents no. 3 to 16.

16. The short question up for
consideration is, whether selection and
promotion in the present case has been done
in accordance with the procedure prescribed
or not.

17. In the rejoinder affidavit,
petitioners have referred to a different
procedure though in the writ petition in para
5 they admit that for promotion from Class
IV to Class III, procedure in Clause 6.4 of
Manual would apply. A minor amendment
was made by Executive Council vide its
resolution dated 3/5.11.1995 notified on
23/24.4.1996 which in respect to Class IV
employees reads as under:

"The provision of reservation under
promotion quota for Group-D employees
for all cadres (Group C & D) be raised to
25 per cent from 20 per cent and panel of
in-service employees for promotion be
prepared after taking Departmental Test.
However, no relaxation in educational/
technical qualification as prescribed under
the rules for promotion quota be given to inservice employees."

18. Clause 6.4 of the Manual, in Subclause 1, talks of eligibility for promotion to
the post of Junior Clerk. All Class IV
employees who have put in five years
946 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

service, passed matriculation examination
or equivalent are so eligible.

19. Sub-clause 2 of Clause 6.4 talks of
a typing test which is to be held after
qualifying in departmental test.

20. Note appended to the said subclause provides that an employee who does
not pass typing test but is otherwise eligible
for promotion, would be promoted, subject
to the condition that he passes typing test
within two years from the date of promotion
failing which he will be reverted. The
proviso says that for such employees, typing
test be held at least twice a year.

21. Then there is a written test
contemplated in Clause 6.4 consisting of
two papers of simple English, Hindi and
Arithmetic of one hour duration.

22. The matter of importance is that in
Clause 6.4 (II) (2), the test other than typing
test has been referred to by observing
"qualifying in the test". This Court has also
gone through the resolution of Executive
Council of 1996, which, while extending
quota of promotion from 20 to 25%, talks
preparation
of
panel
of
in-service
employees for promotion after taking
departmental test. It clearly says that there
shall be no relaxation in educational and
technical qualifications.

23. These provisions have been
understood by BHU in their true perspective
when notification for selection was issued
as is evident from the conditions mentioned
therein. It is nobody's case that there is any
other change or alternation either by
Executive Council or any other authority
having
jurisdiction
in
the
matter
incorporating any alteration or amendment
in the aforesaid procedure. It goes without
saying that note appended to Sub-clause
2(a) of Clause 6.4 says that passing of
typing test is a pre-condition for qualifying
for promotion in Class III from Class IV. If
a candidate is otherwise eligible, and has
passed departmental test, he can be
promoted, whereafter he may pass typing
test in two years.

24. No provision has been shown
which contemplate any interview or marks
therefor. Even the departmental test is
contemplated as a qualifying examination
for eligible candidates. Reading clause 6.4
of Manual in the light of Executive
Council's
resolution
notified
on
23/24.4.1996 requiring preparation of a
seniority list of the candidate who have
passed departmental test, this Court has no
manner of doubt that for promotion from
Class IV to Class III, the extant procedure
available in BHU talks of only a
departmental test which consists of a written
test in two papers of English, Hindi and
Arithmetic. Those who pass the said test
shall be promoted in Class III in order of
seniority. If they have already passed typing
test, their promotion will be absolute subject
to provision of probation etc. but if they
have not passed typing test, then promotion
would be conditional i.e. they have to pass
typing test within two years failing which
they would be reverted. Neither the
procedure contemplates preparation of a
merit list based on the marks obtained in
tying test, written test and interview nor
passing of typing test is a pre-condition for
getting promotion on Class III post nor
interview at all a part of selection
procedure.

25. The respondent-University in the
counter affidavit has said that this was
incorporated by Board of Examiners on
11.4.2006. It is apparently, in my view, in
2 All] Sri Krishna Rai and others V. Banaras Hindu University Thru' Registrar B.H.U. and others

947
the teeth of procedure prescribed in Clause
6.4 of Manual read with Executive
Council's resolution dated 23/24.4.1996 and
the procedure notified by respondents
inviting applications on 17.12.2005.

26. The incidental but necessary
question then comes up whether the Board
of Examiner, which is a body constituted by
Vice Chancellor to hold selection in
accordance with existing provisions, did
possess any power to make alteration/
change in the procedure of selection. In my
view, the matter is squarely covered by a
decision of the Apex Court in Krushna
Chandra Sahu Vs. State of Orissa AIR
1996 SC 352. In para 35 of the judgment,
the Court said:

"The members of the Selection Board
or for that matter, any other Selection
Committee, do not have the jurisdiction to
lay down the criteria for selection unless
they are authorised specifically in that
regard by the Rules made under Art. 309. It
is basically the function of the rule making
authority to provide the basis for selection."

27. Further in para 36 the Court said:

"The Selection Committee does not
even have the inherent jurisdiction to lay
down the norms for selection nor can such
power
be
assumed
by
necessary
implication."

28. Earlier, in Ramchandra Iyer Vs.
Union of India AIR 1984 SC 541, in para
44 the Court said:

""By necessary inference, there was no
such power in the ASRB to add to the
required qualifications. If, such power is
claimed, it has to be explicit and cannot be
read by necessary implication for the
obvious reasons that such deviation from
the rules is likely to cause irreparable and
irreversible harm"

29. In Umesh Chandra Shukla Vs.
Union of India AIR 1985 SC 1351 also the
Apex Court held that selection committee
does not possess any inherent power to lay
down its own standards in addition to that is
prescribed under the rules.

30. In Durgacharan Misra Vs. State
of Orissa AIR 1987 SC 2267, following
Apex Court decision in Ramchandra Iyer
(supra) the Apex Court pointed out
limitations of the selection committee
stating that it has no jurisdiction to prescribe
the minimum marks which a candidate had
to secure at the viva voce test.

31. The Apex Court in Krushna
Chandra Sahu (supra) in para 38 also said
that Selection Committee or the Selection
Board cannot be held to have jurisdiction to
lay down any standard or basis for selection
as it would amount to legislate a rule for
selection.

32. The minutes of meeting of Board
of
Examiners
(constituted
by
ViceChancellor) have been placed on record as
Annexure 3 to Supplementary Counter
Affidavit filed by respondents 1 and 2 and it
says as under:

"Considered the matter relating to
conduct of Typing Test on 16.05.2006 of the
eligible
Group-'D'
employees
of
the
University, Written Test and Interview for
appointment to the post of Junior Clerk
under 25% promotion quota.

The
Board
of
Examiners,
after
considering the facts and in view of the
previous norms, decided the following
948 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

marking system for Typing Test, Written
Test and Interview:

Mode of Test
Maximum Marks

Typing Test

- 20

For 30 wpm

- 10

For each two correct

-
10
(maximum)

words- 1 mark as bonus

Written Test:

 - 60

Hindi

 - 20

English

 - 20

(Paper-A)

Arithmetic

 - 20

(Paper-B)

Interview

 - 20

Total :

- 100 marks

The Board of Examiners decided that
the above-mentioned marking system be
adopted for making final merit for
appointment to the post of Junior Clerk
from amongst eligible Group-'D' employees
under 25% promotion quota in the
University.

The Board of Examiners still further
decided that all the eligible Group-'D'
employees except exempted employees are
required to appear in the Typing test. The
excepted employees (by way of age or
disabilities) be given 10 marks without
appearing in the Typing Test. If they wish to
appear in the Typing Test and if their
performance in the Typing Test is more
than 20 wpn, 1 mark be given for each two
correct words but maximum 10 marks as in
the case of general employees. All the
eligible employees including exempted
employees be subjected to written Test and
Interview. The merit list be prepared on the
basis of overall marks obtained by them in
the
Typing
Test,
Written
Test
and
Interview."

33. The said Board consisted of Prof.
Kalyan Singh, Department of Agronomy as
Chairman and Sri N. Sundaram, Registrar,
Prof.
Kiran
Barman,
Department
of
Economics, Prof. S.K. Basu, Department of
Computer Science, Dr. S.P. Mathur, Dy.
Registrar (Admin.-1) as members and Sri
M.L. Kanaujiya, Dy. Registrar (Admin.)- II
as Member Secretary. The above decision
of Board of Examiners is clearly in
violation of procedure prescribed in Clause
6.4 of the Manual and Executive Council's
resolution of 1996.

34. Learned counsel for respondents 1
and 2 has admitted that Board of Examiners
was not authorized or conferred any power
either under B.H.U. Act or statute or
ordinance or any resolution of Executive
Council so as to empower them to prescribe
procedure for selection. On the contrary,
repeatedly in the counter affidavit and the
written submission, the case of the
respondents 1 and 2 is that they have strictly
followed the procedure prescribed in Clause
6.4 read with 1996 Resolution of Executive
Council. It is not in dispute that the
Executive Council is a statutory body under
the Act and is empowered to frame rules
and regulations, statutory in nature, for
recruitment and conditions of service of the
employees of University. They had so laid
down procedure and that had to be followed
as such. The Board of Examiners by no
stretch of imagination possess any power to
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949
create a procedure on their own in
contravention or addition to what has been
laid down by Executive Council. The
aforesaid
decision
and
consequential
selection, therefore, in my view, is wholly
illegal and contrary to the procedure
prescribed in law.

35. Sri Tripathi, learned counsel for
respondents, at this stage, submitted that an
employee has no right of promotion but
only has right of consideration for
promotion. Petitioners were given an
opportunity to participate in selection, they
also participated and have not been selected.
Having so appeared in selection and failing
therein, they subsequently cannot turn
around and challenge the very selection.
Fortifying the aforesaid submission, he
placed reliance on Apex Court's decisions in
K. Samantaray Vs. National Insurance
Co. (2004) 9 SCC 286, Ved Prakash &
others Vs. State of Haryana & others
(2002) 10 SCC 359, Union of India Vs.
A.K. Narula (2007) 11 SCC 10, K.A.
Nagmani Vs. Indian Airlines (2009) 5
SCC 518, Madan Lal & others Vs. State
of J & K (1995) 3 SCC 486, Chandra
Prakash Tiwari Vs. Shakuntla Shukla
(2002) 6 SCC 132 and UPSC Vs. S.
Thiagarjan & others (2007) 9 SCC 548.

36. The above proposition advanced
by learned counsel for petitioner and the
aforesaid decisions in respect to exposition
of law as such admits no exceptions. The
Million dollar question, however, would be,
whether it would apply to the present case
or not.

37. I first refer to the decisions relied
by learned counsel for respondents 1 and 2.

38. In K. Samantaray (supra) the
Apex Court in para 6 observed that in all
services whether public or private, there is
invariably a hierarchy of posts comprising
of higher posts and lower posts. Promotion,
as understood under the service law
jurisprudence, is advancement in rank,
grade or both and no employee has a right
to be promoted, but has a right to be
considered for promotion. Further, in para
11 of the judgment, Court observed that
employer while laying down promotion
policy or rule can always specify the area
and parameter of weightage to be given in
respect of merit and seniority separately so
long as policy is not colourable exercise of
power, nor has the effect of violating any
statutory provision. The above exposition of
law is well settled admits no exception. It
may be pointed out at this stage that in K.
Samantaray
(supra),
no
statutory
provision
existed
laying
down
the
promotion policy, criteria etc. hence the
employer, i.e. National Insurance Company
formulated a promotion policy which has
been quoted in the judgment in para 8. The
Apex Court said that in absence of statutory
rules, the employer can always formulate
such policy since the legislative power in
such matter vests with employer. It is in this
context, in para 11 of the judgment the
Court said:

"There is no statutory rule operating.
It is for the employer to stipulate the criteria
for promotion, the same pertaining really to
the area of policy-making. It was, therefore,
permissible for the respondent to have their
own criteria for adjudging claims on the
principle of seniority-cum-merit giving
primacy to merit as well, depending upon
the class, category and nature of posts in
the hierarchy of administration and the
requirements of efficiency for such posts."

39. In Ved Prakash (supra), the
question was whether the criteria for
950 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

promotion
"seniority-cum-merit'
would
mean that the promotion has to be made
solely on the basis of seniority ignoring
merit or not. It was held that expression
'seniority-cum-merit' cannot be construed
equivalent to seniority alone, but in such
case one must have minimum merit and if
by considering the merit he is found
unsuitable, the senior most person may be
denied promotion. Evidently, the judgment
has no application in the case in hand since
in our case, the criteria for promotion is not
as that was applicable in Ved Prakash
(supra) and others and that too was
governed by a statutory rule, namely, rule 9
of Punjab Forest Subordinate (Executive
Section) Rules. The judgmental, therefore,
has no application in the case in hand.

40. In Union of India Vs. A.K.
Narula (supra), the only question up for
consideration was whether a selection made
by a departmental promotion committee can
be challenged by requiring the Court to
examine
whether
the
assessment
of
performance has been made rightly or not,
like sitting in appeal. Repelling, Apex Court
said that a process of assessment can be
vitiated in law either on the ground of bias,
mala fide or arbitrariness and not otherwise.
The Court would not sit like an appellate
authority and for this purpose relied on its
earlier decisions in State Bank of India Vs.
Mohd. Mynuddin (1987) 4 SCC 486,
Union of Public Service Commission Vs.
Hiranyuala Dev (1988) 2 SCC 242,
Badrinath
Vs.
Government
of
Tamilnadu (2000) 8 SCC 395. Provisions
as applicable therein were also considered
and in para 15 of the judgment, the Court
said:

"15. The guidelines give a certain
amount of play in the joints of DPC by
providing that it need not be guided by the
overall grading recorded in CRs. but may
make its own assessment on the basis of the
entries in CRs. DPC is required to make an
overall assessment of the performance of
each candidate separately, but by adopting
the same standards, yardsticks and norms.
It is only when the process of assessment is
vitiated either on the ground of bias, mala
fides or arbitrariness, that the selection
calls for interference. Where DPC has
proceeded in fair, impartial and reasonable
manner, by applying the same yardstick and
norms to all candidates and there is no
arbitrariness in the process of assessment
by DPC, the court will not interfere."

41. There is no such dispute in our
case, therefore, the judgment has no
application.

42. In K.A. Nagmani (supra), the
Apex Court in para 53, 54 and 55 observed
that the appellant therein participated in the
selection without any demur or protest and
when the selection was complete and they
were unsuccessful, they challenged the
selection which cannot be permitted. Para
54, which says the above facts, is
reproduced as under:

"54. The Corporation did not violate
the right to equality guaranteed under
Articles 14 and 16 of the Constitution. The
appellant
having
participated
in
the
selection process along with the contesting
respondents without any demur or protest
cannot be allowed to turn round and
question the very same process having
failed to qualify for the promotion."

43. In this context, relying on an
earlier decision of Apex Court in Madan
Lal (supra) and Chandra Prakash Tiwari
(supra), the Court said that unsuccessful
candidate in these cases cannot be allowed
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951
to challenge the selection. In our case, the
facts already stated would show when a
typing test was held as a first item,
petitioners
protested
and
again
they
protested at the time of interview, but their
protest was rejected. Here is not a case
where petitioners did not protest or shown
demur against the manner in which the
selection was held. Besides, the decisions of
Board of Examiners for providing different
marks in three tests it, is nowhere stated by
the respondents that it was ever disclosed or
made known to the candidates. In any case,
here is not a case wherein the selection is
being challenged on the ground that
proceeding
according
to
statutory
provisions, there is some irregularity but the
contention is that the entire selection is
vitiated being in the teeth of statutory
procedure laid down by the Executive
Council of the University. There is no
estoppel against law.

44. In Madan Lal versus State of
Jammu & Kashmir, 1995 (2) JT 291, the
Hon'ble Supreme Court has held that once a
person has taken a chance in the selection,
he cannot resile back subsequently after
having found himself unsuccessful and
cannot be allowed to challenge the entire
selection.

45. In Union of India & another vs.
N. Chandrashekharan & others, JT 1998
(1) SC 295, the Hon'ble Apex Court has
held as under:

"It is not in dispute that all the
candidates were made aware of the
procedure for promotion before they sat for
the written test and before they appeared
before
the
Departmental
Promotion
Committee. Therefore, they cannot turn
around and contend later when they found
they were not selected by challenging that
procedure and contending that the marks
prescribed for interview and confidential
reports are disproportionately high and the
authorities cannot fix a minimum to be
secured either at interview or in the
assessment on confidential report."

46. In Utkal University etc. vs. Dr.
N.C. Sarangi & others, JT 1999 (1) SC
101 wherein it was held as under:

"Both the University as well as the
selected candidate have pointed out that this
fact was known to the first respondent
throughout. He did not, at any times,
objected to the composition of the Selection
Committee. He objected only after the
selection was over and he was not selected.
This would amount to waiver of such
objection on the part of the first
respondent."

47. In Chandra Prakash Tiwari vs.
Shakuntala Shukla,2002 (6) SCC 127, the
Hon'ble Apex Court has held as under:

"The law seems to be well settled that
in the event a candidate appears at the
interview and participates therein, 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 there was some
lacuna in the process."

48. Following the judgments of the
Hon'ble Apex Court, some of them referred
to hereinabove, an Hon'ble Single Judge of
this Court has also taken the same view in
Kavindra Kumar vs. Deputy Inspector
General & others, 2003 (1) ESC 235
wherein it was held as under:

"It is thus held that these writ petitions,
challenging the criterion for promotion, are
952 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

not maintainable at the instance of
candidates who have participated in the
selection without raising any objection."

49. A Division Bench of this Court (in
which I was also a member) has also taken
similar view in Special Appeal No. 1222 of
2005 Km. Saurabh Vibhushan Vs. State
of U.P. & others decided on 11.9.2006
wherein it was held as under :

50. "Now, after having failed to
qualify in the selection the appellant has
challenged the very qualification on the
basis whereof the aforesaid selection has
been made. In our view, the appellant
having
availed
the
opportunity
of
participating in the selection cannot be
permitted to challenge the norms of the
aforesaid selection."

51. The three judgments, namely,
K.A. Nagmani (supra), Madan Lal
(supra) and Chandra Prakash Tiwari
(supra), similar others, some whereof
discussed above, therefore, in my view,
have no application to the facts of this case.

52. In Union Public Service
Commission Vs. S. Thiagarjan, the Court
in para 22 of the judgment has categorically
held that the Selection Committee acted
strictly in accordance with the provisions of
the Promotion Regulations which are
statutory in nature. That being so, its
decision for not interfering with the
selection would not help the respondents in
any manner and reliance placed thereon, in
my view, is thoroughly misconceived.
Moreover, it was a case relating to selection
made in accordance with statutory rules of
the members of All India Service (i.e.
Indian Forest Service) governed by the
regulations framed under All India Services
Act, 1951 and, therefore, has nothing
common with the facts and dispute in this
case.

53. In the present case, I am
constrained to observe that the notification
published
by
University
categorically
reiterated what was contained in Clause 6.4
of the Manual. The rules of game were
made known to everybody but Board of
Examiners, which was constituted to hold
selection
strictly
in
accordance
with
aforesaid decided norms, changed the rules
in between the game and held selection in a
manner unknown to the extant Rules
applicable for promotion from Class IV to
Class III in BHU. This was wholly illegal
and without jurisdiction. It is well settled
that rules of games cannot be allowed to be
changed during the game.

54. This Court has no manner of
doubt in the light of above discussion that
petitioners have been discriminated and
have been considered in a manner which
was never contemplated by the University
for considering promotion from Class IV to
Class III.

55. One more aspect also not be
ignored. In making such promotions
persons totally unequal to each other in
various respects have to be considered. A
Class IV employee who was appointed in
1977 has much longer experience of a Class
IV post but in the context of personality and
other aspects, he may not compare with his
much junior entered in service as Class IV
employee after 10, 20 or 25 years. The
subsequent educational advancement also
cannot be ignored. It is evident that persons
who were appointed in 1977 to 1997, i.e.
petitioners, got occasion for consideration
for promotion to Class III post after decades
of service. For such persons, making
interview as a part of selection when it was
2 All] Smt. Tarannum Khatoon V. Branch Manager, L.I.C. of India Ghazipur and others

953
not contemplated in the relevant procedure
prescribed by the University obviously
made it difficult for them to qualify since
they may not compete with young and
youngest new employees having better
qualifications. But one must also have
considered that they at the fag end of
service to their credit, have long experience.
Better honour and respect needed so that
they may retire from a higher post after
getting at least one promotion at the fag end
of their service. The University must have
all these facts and other relevant aspects in
mind when laid down the procedure in the
Manual, but unfortunately the Board of
Examiners acted unmindful of wider
aspects. The acted wholly illegally by
ignoring the established procedure laid
down in the Rules and on the contrary
settled their own selection procedure by
exceeding their authority and jurisdiction.

56. In the result, the writ petition is
allowed. Impugned orders dated 5.6.2007
and
2.7.2007
and
appointments
of
respondents 3 to 16 on Class IV posts are
hereby quashed.

57.