P. K. BAHRI ( 1 ) THIS writ petition has been brought seeking setting aside and quashment of the order of the respondent dated June 30,1990, by which respondents 2 to 10,who are junior to the petitioner, have been promoted to the post of Deputy Manager (Flight Operations) superseding the petitioner and as such seeking mandamus for being also promoted to the said post with effect from June 1990 when his juniors have been promoted. ( 2 ) THE facts leading to the filing of the writ petition, in brief, are that the petitioner was selected as Flight Operations Officer and was promoted as Assistant Manager Flight Operations and according to the petitioner, he had earned good reports in his present post and being senior to respondents 2 to 10 was entitled to be promoted to the post of Deputy Manager Flight Operations and under the rules this was a promotional post and ought to have been filled in on the basis of seniority subject to fitness. It is urged that the respondent had not resorted to any public notice for filling such post by direct recruitment as no such notice has been put up on the notice boards of the offices of the respondent at any time as required by rule 9 (d) of the Recruitment and Promotion Rules (for short r and P Rules ). He has urged that he was advised to appear for interview on March 20, 1990 and the interview was held by Capt. G. Singh, Deputy Operations Manager (Admn.) Head Quarters, Sh. C. D souza, Flight Manager (Head Quarters) and Sh. S. V. Harale, Senior Deputy Manager (Personnel Services), Western Region, Bombay and the said selection committee " appears to have recommended the appointment of respondents 2 to 10 and he has urged that constitution of the selection committee was in violation of the rule 10 (c) which requires that the recruitment board shall comprise of: (1) Head of the Department concerned at Head Quarters; (2) Secretary; and (3) An officer to be nominated by the General Manager. ( 3 ) ANOTHER grievance raised by the petitioner in the writ petition is that allocation of 50% marks for the interview lasting for a very short period for assessing the personality factors of the candidates who have put in many years of service with the Organisation and those professional and-managerial abilities have been duly rated in the annual performance appraisals is contrary to the law laid down by the Supreme Court in various judgments as the same is violative of Articles 14 and 16 of tne Constitution of India. ( 4 ) THE writ petition is opposed by the respondents, it is pleaded In the affidavit of Shri Daya Narain, Secretary of the respondent-Airlines that the post in question is an upper managerial cadre post and the same is filled through process of selection and he has also enumerated in para 2 (a) the various duties and functions to be performed by the incumbents of the said post and it was mentioned that the post of Chief Flight Operation Officer has been re-designated as Deputy Manager, Flight lions. It was mentioned that in resolution dated July 30,1970, passed by the of Directors it was decided that such post shall be filled in by direct recruitment from officers of the respondent and same will be treated as selection post and was controverted that this post is a promotional post to be filled in on the basis of seniority-cum-fitness only. The allocation of 50% marks for the interview was also sought to be justified keeping in view the status of this post as it comes within the ranger of higher managerial posts. It was pleaded that in case the post was to be filled in from open market by direct recruitment then resort has to be made to issuing advertisements. At any rate, non-issuance of any notices as required by rule 9 has not prejudiced the petitioner who admittedly was duly considered by the Selection Committee and unfortunately was not found suitable for the said post. In the Additional affidavit filed by Sh. At any rate, non-issuance of any notices as required by rule 9 has not prejudiced the petitioner who admittedly was duly considered by the Selection Committee and unfortunately was not found suitable for the said post. In the Additional affidavit filed by Sh. Vinod Kashyap, Director of the respondent, it has been mentioned that since 1970 upper managerial cadre posts have been filled in only by on and the Bombay High Court has already upheld such position in Appeal No. 875/87 in the case of N. Karamchandani and Others Vs Indian Airlines and Others by observing that it is not in dispute that right from the year 1970 the management has filled up the said post by process of selection and the words direct recruitment as understood in the Airlines meant the process of selection on merits from employees working in the respondent-Airlines and the challenge to the appointment to the post of Deputy Operations Manager on the ground that selection was not justified in adopting the process of selection is devoid of any substance. It was emphasized that the provisions of R and P Rules which were administrative in nature are not statutory and stand superseded on the basis of the resolution of the Board dated April 17, 1970 in this respect. ( 5 ) WITH regard to the constitution of the selection committee, it is pleaded in the affidavit that under proviso to rule 10 (c) the Chairman-cum-Managing Director had the ample power to constitute an adhoc Board which he has done in the present case in as much as R and P Rules were framed in 1960 and since then many changes have taken place in the organizational structure and functions of the Corporation and with the formation of the Personnel Department, the personnel functions have been taken over by the said department from the Secretary and such personnel functions are performed by Personnel Department which is headed by Director of Personnel and it was also mentioned that designation of General Manager has been since changed to that of Managing Director. In view of the aforesaid changes it was not possible to constitute the Board in the manner mentioned in the said rule which was administrative in nature and taking resort to proviso to rule 10 (c) the Board was duly constituted which comprised of representative of the Director of Operations and nominee of Managing Director. In view of the aforesaid changes it was not possible to constitute the Board in the manner mentioned in the said rule which was administrative in nature and taking resort to proviso to rule 10 (c) the Board was duly constituted which comprised of representative of the Director of Operations and nominee of Managing Director. ( 6 ) THE learned counsel for the petitioner has vehemently contended that in view of the judgments given by the Supreme Court in the cases of Lila Dhar Vs State of Rajasthan and Others, (1981) 4 SCC 159 , Mohinder Sain Garg Vs State of Punjab and Others, JT 1990 (4) SC 704, Vikram Singh and Another Vs The Subordinate Services Selection Board, Haryana and Others, JT 1990 (4) SC 528, Sri Ashok @ Somanna Gowda and Anr. Vs State of Karnataka and Others, JT 1991 (4) SC 160 and Munindra Kumar and Others Vs Rajiv Govil and Others, JT 1991 (2) SC 537, the allocation of 50% marks for the interview in respect of the post in question is totally illegal. All these judgments are not applicable, in our view, to the present case inasmuch as the nature and functions of this post as have been enumerated in the counter-affidavit of the respondent which are not disputed by the petitioner clearly show that this post requires higher calibre and managerial skill and the Supreme Court while dealing with such like post has already upheld the allocation of 50% marks for interview in the case of Indian Airlines Corporation Vs Capt. K. C. Shukia and Others, (1993)1 SCC 17 . In the said case, the post of Deputy Operations Manager was in question. The method of evaluation was the same, 50% marks on ACRs and 50% marks on interview. Referring to the cases of Ajay Hasia Vs Khalid Mujib Sehravardi, (1981)1 SCC 722 , Ashok Kumar Yadav Vs State of Haryana, (1985) 4 SCC 417 and State of U. P. Vs Rafiquddin, 1987 Supp SCC 401, the Supreme Court held that distinction appears tohave been drawn in the interview held for competitive examinations or admissions in educational institutions and selections for higher post. It was laid down that efforts have been made to eliminate the scope of arbitrariness in the former by narrowing down the proportion of marks as various factors are likely to creep in, but same standard was held to be not applicable for selection for higher posts. It was specifically held that such a rule cannot be stated to be arbitrary when the evaluation was job-oriented. Like the post of Deputy Operations Manager, the present post, in our view, also belongs to upper managerial cadre and the ratio laid down in this judgment, in our view, applies on all fours to the present case arid the allocation of 50 marks for the interview and 50 marks on the evaluation of the ACRs, in our view, is not arbitrary and cannot be struck down. ( 7 ) THE contention of the learned counsel for the petitioner is that this case is distinguishable inasmuch as the present post is not such high in the cadre as the post under consideration before the Supreme Court and thus, the ratio laid down in previous judgments of the Supreme Court should be applicable and interview marks should not exceed more than 12-1/2% of the total marks when particularly even !p the IAS Recruitment Rules such like percentage of marks has been fixed for interview. We do not find any force in this contention. In the judgments relied upon by the learned counsel for the petitioner himself, a distinction has been kept in view with regard to the recruitments to the job-oriented posts and the recruitment being carried out through written competitions and also admissions being made in educational institutions. So, those judgments would not in any manner help the case of the petitioner in getting quashed the allocation of 50 marks for the interview in the present case. ( 8 ) IT has been then urged that constitution of selection board was not in consonance with the rules applicable to the post in question inasmuch as the three officers who constituted the Interview Board were not those mentioned in rule 10 (c ). ( 8 ) IT has been then urged that constitution of selection board was not in consonance with the rules applicable to the post in question inasmuch as the three officers who constituted the Interview Board were not those mentioned in rule 10 (c ). However, keeping in view the facts mentioned in the counter-affidavit, it becomes evident that this Board was constituted under the proviso given in the aforesaid rule ( 9 ) IN view of the fact that there had taken place structural changes in the composition of the departments of the respondent, adherence to rule 10 (c) was not possible and in such a case, in our view, the respondent was justified in taking resort to proviso to that rule in constituting the adhoc selection board. So, it cannot be said that the selection board in question was in violation of any rule. In the present case the petitioner had without any objection taken the chance of appearing before the said selection board and unfortunately not being selected had come forward to challenge the constitution of the said selection board. In our view, the petitioner would be deemed to have waived his right to challenge the constitution of such a selection board. In S. Muthumanlcakam Vs State of Tamil Nadu and Others, AIR 1986 Madras 179, the petitioner in that case having full knowledge about the prescriptions and accepting them had applied for admission to a particular post on rejection of his application on the ground of not satisfying the requisite prescriptions, he filled a writ petition. It was held by the Madras High Court that he had taken the chance of being selected knowing very well his legal rights by making an application and on his application being rejected as he did not fulfil the requisite criteria, he has no right to challenge the said criteria by filing the writ petition. Reliance has been placed on Manak Lal Vs Dr. Prem Chand Singhvi and Others, AIR 1957 SC 425 and also on Dr. G. Sarana Vs University of Lucknow, AIR 1976 SC 2428 , for the proposition that once a petitioner being conscious of his legal right has failed to take the plea at the early stages of the proceedings the same creates an effective bar of waiver against him. Prem Chand Singhvi and Others, AIR 1957 SC 425 and also on Dr. G. Sarana Vs University of Lucknow, AIR 1976 SC 2428 , for the proposition that once a petitioner being conscious of his legal right has failed to take the plea at the early stages of the proceedings the same creates an effective bar of waiver against him. As in such a case the petitioner who 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 cannot be allowed to adopt the device of raising the technical point for holding that constitution of board was invalid or there was any bias against the petitioner nourished by any member selection committee or selection board. In I. L. Honnegouda Vs State of Karnataka and Others, AIR 1978 SC 28 , it was found that the appellant in that case had acquiesced to the 1970 Rules by applying for the post of the Village Accountant and had appeared before the Recruitment Committee for interview and having not been selected, it was held that he had no right to question the constitutionality of Rules. In the present case also the petitioner knowing the constitution of the selection board had appeared before the said board and has taken the chance of being selected cannot now be allowed to turn round and challenge the constitution of the board after having been not selected by that board. Challenge, if any, available to the petitioner would be deemed to have been waived with his appearing before that board for the purpose of selection without any demur or objection. ( 10 ) IT has been urged by the learned counsel for the petitioner that Rule 9 of the R and P Rules has not been followed. We hold that the petitioner is not in any manner prejudiced on account of respondent not strictly complying with Rule 9 of R and P Rules. So, he has no right to urge that the selections made by the respondent are invalid. He has made reference to B. S. Minhas Vs Indian Statistical Institute and others, (1983) 4 SCC 582 . The said judgment is distinguished on facts. So, he has no right to urge that the selections made by the respondent are invalid. He has made reference to B. S. Minhas Vs Indian Statistical Institute and others, (1983) 4 SCC 582 . The said judgment is distinguished on facts. In that case respondent No. 4 was appointed to a particular post without taking resort to publicity being given to that post and thus, petitioner could not come to know about the said post and had been disabled to apply for that post. In such a situation the court held that the order of appointment of respondent No. 4 was vitiated and the court proceeded to set it aside. The Supreme Court has mentioned in para 26 as follows in this judgment: "there is also nothing on record to show that the Council was at any time informed as to what names had been considered by the selection committee or that the name of the petitioner had been considered but respondent No. 4 was found superior. " ( 11 ) IN view of the above facts, the ratio laid down in this judgment would not apply to the facts of the present case when petitioner in the present case has been duly considered by the selection board and unfortunately was not selected. ( 12 ) THE learned counsel for the petitioner has also made reference to Devadasan Vs The Union of India and Another, (1964) 4 SCR 680 , which lays down that a proviso or exception cannot be so interpreted as to nullify or destroy the main provision. We do not understand how this observation can be of any help to the petitioner in the present case because the main rule 10 (c) (i) with regard to constitution of selection board for the post in question has become obsolete when many changes have taken place in the constitution of the various departments of the respondent and in that view of the matter, resort to the proviso for constituting adhoc selection board for filling the posts in question was fully justified. ( 13 ) WE thus, find no merit in this writ petition which we dismiss but leave the parties to bear their own costs. We hope that the respondent shall take some urgent steps to modify the Rules to bring them in consonance with the structural changes made in the departments of the respondent.