JUDGMENT - Lodha R.M., J.:-Heard. 2. On 12-9-2003, we passed the following order : "We asked the learned Counsel for petitioner whether the petitioner participated in the selection process. The learned Counsel for petitioner answered in the affirmative. If that be so, we asked the learned Counsel for petitioner, whether a candidate who has participated in the selection process can challenge the selection process if he was not selected. Learned Counsel for petitioner prays for time to study the point. S.O. 18-9-2003." 3. The learned Counsel for the petitioner submitted that even if the petitioner participated in the selection process, he is entitled to challenge the selection process. Relying upon (Basheshar Nath v. Commissioner of Income-tax, Delhi Rajasthan another)1, 1959 (Supp. 1) S.C.R. 528 , the learned Counsel submitted that waiver of fundamental right does not arise and wherever breach of fundamental right is there, a person or a citizen cannot give up or waive breach of fundamental right. He also relied upon (Olga Tellis others v. Bombay Municipal Corporation others)2, 1985(2) Bom.C.R. 434 , wherein the same legal position was reiterated that there can be no estoppel against or waiver of fundamental right. The learned Counsel for the petitioner also placed reliance on the judgment of the Apex Court in (Kailash Chand Sharma v. State of Rajasthan others)3, A.I.R. 2002 S.C. 2877, and contended that in case of challenge to unconstitutional discrimination, the doctrine of acquiescence, estoppel, set out in the law, does not apply. The Counsel for petitioner submitted that the appointment made solely on the basis of interview is grossly illegal and in support of this proposition he relied upon (Ajay Hasia v. Khalid Mujib Sehravardi others)4, A.I.R. 1981 S.C. 487, and (Praveen Singh v. State of Punjab others)5, A.I.R. 2001 S.C. 152. 4. On the other hand, the learned Counsel for respondent No. 3 submitted that the petitioner having participated in the selection process, cannot be permitted to challenge the selection process if he was not selected, in the discretionary remedy under Article 226 of the Constitution of India. She relied upon the judgment of the Supreme Court in (Madan Lal others v. State of Jammu Kashmir others)6, 1995(3) S.C.C. 486 and (G.N. Nayak v. Goa University others)7, 2002(4) Bom.C.R. (S.C.)216 . 5. We bestowed our thoughtful consideration to the rival contentions. She relied upon the judgment of the Supreme Court in (Madan Lal others v. State of Jammu Kashmir others)6, 1995(3) S.C.C. 486 and (G.N. Nayak v. Goa University others)7, 2002(4) Bom.C.R. (S.C.)216 . 5. We bestowed our thoughtful consideration to the rival contentions. In Basheshwar Nath, (cited supra), the Apex Court in paragraphs 13 and 14 observed thus : "13. ....... There can, therefore, be no doubt or dispute that this Article is founded on a sound public policy recognised and valued in all civilised States. Coming then to the language of the Article it must be noted first and foremost that this article is, in form, an admonition addressed to the State and does not directly purport to confer any right on any person as some of the other Articles, e.g., Article 19, do . The obligation thus imposed on the State no doubt, enures for the benefit of all persons, for, as a necessary result of the operation of this Article, they all enjoy equality before the law. That is, however, the indirect, though necessary and inevitable, result of the mandate. The command of the Article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy. The next thing to notice is that the benefit of this Article is not limited to citizens, but is available to any person within the territory of India. In the third place it is to be observed that, by virtue of Article 12, "the State" which is, by Article 14, forbidden to discriminate between persons includes the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities. Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities. As regards the legislative organ of the State, the fundamental right is further consolidated and protected by the provisions of Article 13, Clause (1) of that Article provides that all laws in force in the territories of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III shall, to the extent of the inconsistency be void. Likewise Clause (2) of this Article prohibits the State from making any law which takes away or abridges the rights conferred by the same part and follows it up by saying that any law made in contravention of this clause shall, to the extent of the contravention, be void. It will be observed that, so far as this Article is concerned, there is no relaxation of the restriction imposed by it such as there are in some of the other Articles, e.g., Article 19, Clauses (2) to (6). Our right to equality before the law is thus completely and without any exception secured from all legislative discrimination. It is not necessary, for the purpose of this appeal to consider whether an executive order is a "law" within the meaning of Article 13, for even without the aid of Article 13, our right to the equal protection of the law is protected against the vagaries, if any, of the executive Government also. In this connection the observations of Lord Atkin in (Eshugbayi Eleko v. Officer Administering Government of Nigeria)8, 1931 A.C. 662 are apposite. Said his Lordship at page 670 of A C: (at 252 of A.I.R.) that in accordance with British Jurisprudence no member of the executive can interfere with the liberty or property of a British subject except when he can support the legality of his act before a Court of justice. That apart, the very language of Article 14 of the Constitution expressly directs that" the State", which by Article 12 includes the executive organ, shall not deny to any person equality before the law or the equal protection of the law. Thus Article 14 protects us from both legislative and executive tyranny by way of discrimination. That apart, the very language of Article 14 of the Constitution expressly directs that" the State", which by Article 12 includes the executive organ, shall not deny to any person equality before the law or the equal protection of the law. Thus Article 14 protects us from both legislative and executive tyranny by way of discrimination. 14) Such being the true intent and effect of Article 14 the question arises, can a breach of the obligation imposed on the State be waived by any person? In the face of such an unequivocal admonition administered by the Constitution, which is the Supreme law of the land, is it open to the State to disobey the Constitutional mandate merely because a person tells the State that it may do so? If the Constitution asks the State as to why the state did not carry out its behest, will it be any answer for the State to make that "true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no objection to my doing it." I do not think the State will be in any better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden, fruit. It seems to us absolutely clear, on the language of Article 14 that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every Welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State." 6. Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State." 6. In Olga Tellis (cites supra), the Apex Court, while considering the issue whether there could be estoppel against or waiver of fundamental right, in paragraphs 28 and 29 of the report held thus : "28. It is not possible to accept the contention that the petitioners are estopped from setting up there fundamental rights as a defence to the demolition of the huts put up by them on pavements or parts of public roads. There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the Constitution. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But, the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. The Preamble of the Constitution says that India is a democratic Republic. But, the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. The Preamble of the Constitution says that India is a democratic Republic. It is in order to fulfil the promise of the Preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15, 16, 19, 21 and 29 and, some on citizens and non-citizens, alike, like those guaranteed by Articles 14, 21, 22 and 25 of the Constitution. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceedings. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all powerful State could easily tempt an individual to forgo his precious personal freedoms, on promise of transitory, immediate benefits. Therefore, notwithstanding the fact that the petitioners had conceded in the Bombay High Court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after October, 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights. How far the argument regarding the existence and scope of the right claimed by the petitioners is well founded is another matter. But, the argument has to be examined despite the concession. 29. The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to-day transactions. In Basheshwar Nath v. Commr. of Income-tax, Delhi, 1959 Supp(1) S.C.R. 528, a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench (Das C.J. and Kapoor J.) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. In Basheshwar Nath v. Commr. of Income-tax, Delhi, 1959 Supp(1) S.C.R. 528, a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench (Das C.J. and Kapoor J.) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (N.H. Bhagwati and Subba Rao, JJ.) held that not only could there be no waiver of the right conferred by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part III of the Constitution. The Constitution makes no distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy." 7. In Ajay Hasia (cited supra) while dealing with the question whether viva voce examination as permissible test for selection of a candidate for admissions to a college, is valid and constitutional, held in paragraph 18 of the report thus: "18. The second ground of challenge questioned the validity of viva voce examination as a permissible test for selection of candidates for admissions to a college. The contention of the petitioners under this ground of challenge was that viva voce examination does not afford a proper criterion for assessment of the suitability of the candidates for admission and it is a highly subjective and impressionistic test where the result is likely to be influenced by many uncertain and imponderable factors such as predelictions and prejudices of the interviewer, his attitudes and approaches, his preconceived notions and idiosyncrasies and it is also capable of abuse because it leaves scope for discrimination, manipulation and nepotism which can remain undetected under the cover of an interview and moreover it is not possible to assess the capacity and calibre of a candidate in the course of an interview lasting only for a few minutes and, therefore, selections made on the basis of oral interview must be regarded as arbitrary and hence violative of Article 14. Now this criticism cannot be said to be wholly unfounded and it reflects a point of view which has certainly some validity. We may quote the following passage from the book on "Public Administration in Theory and Practice" by M.P. Shara which voices a fair and balanced criticism of the oral interview method. Now this criticism cannot be said to be wholly unfounded and it reflects a point of view which has certainly some validity. We may quote the following passage from the book on "Public Administration in Theory and Practice" by M.P. Shara which voices a fair and balanced criticism of the oral interview method. "The oral test of the interview has been much criticised on the ground of its subjectivity and uncertainty. Different interviewers have their own notions of good personality. For some, it consists more in attractive physical appearance and dress rather than anything else, and with them the breezy and shiny type of candidate scores highly while the rough uncut diamonds may go unappreciated. The atmosphere of the interview is artificial and prevents some candidates from appearing at their best. Its duration is short, the few questions of the hit or miss type, which are put, may fall to reveal the real worth of the candidate. It has been said that God takes a whole life time to judge a man's worth while interviewers have to do it in a quarter of an hour. Even at it's best, the common sort of interview reveals but the superficial aspects of the candidate's personality like appearance, speaking power, and general address. Deeper traits of leadership, tact, forcefulness, etc., go largely undetected. The interview is often in the nature of desultory conversation. Marking differs greatly from examiner to examiner. An analysis of the interview results show that the marks awarded to candidates who competed more than once for the same service vary surprisingly. All this shows that there is a great element of chance in the interview test. This becomes a serious matter when the marks assigned to oral test constitute a high proportion of the total marks in the competition." 01 Glenn Stahl points out in his book on "Public Personnel Administration" that there are three disadvantages from which the oral test method suffers, namely, "(1) the difficulty of developing valid and reliable oral tests (2) the difficulty of securing a reviewable record on an oral test and (3) public suspicion of the oral test as a channel for the exertion of political influence" and we may add, other corrupt, nepotistic or extraneous considerations. The learned Author then proceeds to add in a highly perceptive and critical passage : "The oral examination has failed in the past in direct proportion to the extent of its misuse. It is a delicate instrument and in inexpert hands, a dangerous one. The first condition of its successful use is the full recognition of its limitations. One of the most prolific sources of error in the oral test has been the failure on the part of examiners to understand the nature of evidence and to discriminate between that which was relevant, material and reliable and that which was not. It also must be remembered that the best oral interview provides opportunity for analysis of only a very small part of a person's total behaviour. Generalizations from a single, interview regarding an individual's total personality pattern have been proved repeatedly to be wrong. But, despite all this criticism, the oral interview method continues to be very much in vogue as a supplementary test for assessing the suitability of candidates wherever test of personal traits is considered essential. Its relevant as a test for determining suitability based on personal characteristics has been recognised in a number of decisions of this Court which are binding upon us. In the first case on the point which came before this Court, namely, (R. Chitra Lekha v. State of Mysore)9, 1964(6) S.C.R. 368 , this Court pointed out : "In the field of education there are divergent views as regards the mode of testing the capacity and calibre of students in the matter of admissions to colleges. Orthodox educationists stand by the marks obtained by a student in the annual examination. The modern trend of opinion insists upon other additional tests, such as interview, performance in extracurricular activities personality test, Psychiatric test etc. Obviously we are not in a position to judge which method is preferable or which method is preferable or which test is the correct one.............. The scheme of selection, however, perfect it may be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashing it. So long as the order lays down relevant objective criteria and entrusts the business of selection to qualified persons, this Court cannot obviously have any say in the matter." and on this view refused to hold the oral interview test as irrelevant or arbitrary. That it is capable of abuse is not a ground for quashing it. So long as the order lays down relevant objective criteria and entrusts the business of selection to qualified persons, this Court cannot obviously have any say in the matter." and on this view refused to hold the oral interview test as irrelevant or arbitrary. It was also pointed out by this Court in (A. Peeriakaruppan v. State of Tamil Nadu)10, 1971(2) S.C.R. 430 : "In most cases, the first impression need not necessarily be the best impression, but under the existing conditions, we are unable to accede to the contentions of the petitioners that the system of interview as in vogue in this country is so defective as to make it useless." It is therefore not possible to accept the contentions of the petitioners that the oral interview test is so defective that selecting candidates for admission on the basis of oral interview in addition to written test must be regarded as arbitrary. The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. We would, however, like to point out that in the matter of admission of colleges or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification." 8. In Praveen Singh v. State of Punjab others, the Apex Court observed that recruitment to the post of Block Development and Panchayat Officer cannot be made on the basis of viva voce test only. The Apex Court observed that the vice of manipulation cannot be ruled out in viva voce test. 9. In Kailash Chand Sharma, the Supreme Court held in paragraphs 50 and 51 of the report thus : "50. One more point which need mention. The Apex Court observed that the vice of manipulation cannot be ruled out in viva voce test. 9. In Kailash Chand Sharma, the Supreme Court held in paragraphs 50 and 51 of the report thus : "50. One more point which need mention. Some of the learned Counsel argued that the unsuccessful applicants should not be allowed to challenge the selection process to the extent it goes against their interest, after having participated in the selection and waited for the result. It is contended that the discretionary relief under Article 226 should not be granted to such persons. Reliance has been placed on the decision of this Court in Madan Lal v. State of J. K., 1995(3) S.C.C. 486 and other cases in support of this argument. On the other hand, it is contended that in a case of challenge to unconstitutional discrimination, the doctrine of acquiescence, estoppel and the like does not apply and the writ petitioners cannot be expected to know the constitutional implications of the impugned circular well before the selections. We are not inclined to go into this question for the reason that such a plea was not raised nor any argument was advanced before the High Court. 51. Having due regard to the rival contentions adverted to above and keeping in view the factual scenario and the need to balance the competing claims in the light of acceptance of prospective overruling in principle, we consider it just and proper to confine the relief only to the petitioners who moved the High Court and to make appointments made on or after 18-11-1999 in any of the districts subject to the claims of the petitioners. Accordingly, we direct: 1. The claims of the writ petitioners should be considered afresh in the light of this judgment vis a vis the candidates appointed on or after 18-11-1999 or those in the select list who are yet to be appointed. On such consideration, if those writ petitioners are found to have superior merit in case the bonus marks of 10% and/or 5% are excluded, they should be offered appointments, if necessary, by displacing the candidates appointed on or after 18-11-1999. 2. The appointments made upto 17-11-1999 need not be reopened and reconsidered in the light of the law laid down in this judgment. 3. 2. The appointments made upto 17-11-1999 need not be reopened and reconsidered in the light of the law laid down in this judgment. 3. Writ petition No. 542/2000 filed in this Court under Article 32 is hereby dismissed as it was filed nearly one year after the judgment of the High Court and no explanation has been tendered for not approaching the High Court under Article 226 at an earlier point of time." 10. The question before us is : whether the petitioner having participated in the selection process for selection to the post of Senior Tuberculosis Laboratory Supervisor, can be permitted to challenge the selection process, having put in the Wait List and not given appointment. The selection committee comprised of five members Senior Officials/persons, Chairman of which was the Chief Executive Officer. There are no mala fides or bias imputed to the selection committee as a whole, or any member of the selection committee. Had the petitioner been selected in the selection process, obviously he would not have challenged the selection process and method of selection. It is only because the petitioner has been put in the wait list, now all sorts of plea are sought to be set up, including that the selection list prepared purely on the basis of viva voce, is not justified and some other infirmities are sought to be pointed out. In the facts and circumstances of the case, we have no hesitation in holding that petitioner, by his conduct his disentitled himself to the discretionary extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. In Madanlal's case (cited supra), the Apex Court was seized of the question whether a candidate who takes chance to get selected in the interview test and ultimately finds himself to be unsuccessful, can be permitted to challenge the interview test on merits. In paragraph 9 of the Report, the Supreme Court held thus : "9. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. In paragraph 9 of the Report, the Supreme Court held thus : "9. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a Court of appeal and try to re-assess the relative merit of the concerned candidates who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to Judge the relative merits of the candidates who were orally interviewed in the light of the guidelines laid down by the relevant Rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a Court of appeal over the assessment made by such an expert committee." 11. The Supreme Court further went on to observe that what marks should be given in the interview is in the exclusive domain of the expert committee and it cannot be the subject-matter of attack in the Court. 12. In G.A. Nayak's case (cited supra), the Apex Court observed that 'a' candidate who had applied for post and appeared in interview without protest, cannot subsequently plead that eligibility criteria was wrongly framed. In paragraph 22 of the report, the Apex Court held thus : "22. According to the respondent No. 5, the amendment of the qualifications for the post of Professor of Marine Science was illegal. It was contended that under Statute 8, it is the Executive Council which has to prescribe the qualifications after considering the recommendations of the Academic Council. According to the respondent No. 5, the qualifications which were prescribed in the 1995 advertisement and hand-out issued to the applicants in connection therewith had not been prescribed by the Executive Council nor recommended by the Academic Council. Whether this is so or not, this is not a grievance which could have been raised by the respondent No. 5. According to the respondent No. 5, the qualifications which were prescribed in the 1995 advertisement and hand-out issued to the applicants in connection therewith had not been prescribed by the Executive Council nor recommended by the Academic Council. Whether this is so or not, this is not a grievance which could have been raised by the respondent No. 5. He knew that there was a change in the eligibility criteria for the post yet he applied for the post and appeared at the interview without protest. He cannot be allowed to now contend that the eligibility criteria were wrongly framed." 13. In our view, the legal position laid down by the Apex Court in Madan Lal's case and reiterated in G.N. Nayak's case, squarely applies to the facts of the present case and the petitioner having not been given immediate appointment on the post of Senior Tuberculosis Laboratory Supervisor though she has been put in wait list at serial No. 2 and after having participated in the interview without protest, cannot be permitted to challenge the selection process. The writ petition is accordingly dismissed. Petition dismissed. -----