Judgment ( 1. ) APPELLANT has filed this appeal challenging the order of Single Bench, whereby Single Bench has interfered with the order passed by the Collector setting aside the selection. ( 2. ) BRIEF facts of the case are as under :-Nagar Panchayat, Gormi held an interview for selection of Upper Division Teachers. Being aggrieved by the rejection appellant filed an appellant before the Collector, District Bhind under Section 308 of Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as an Act ). The appeal was filed on the following grounds :- (i) That in the Selection Committee there was no expert for the subject of Chemistry and in the absence of expert in the subject selection of respondent No. 1 Rajeev Kumar Tripathi is improper. (ii) The marks for interview were not divided properly. Total marks for interview were 15. Out of 15 marks subject experts, Chief Municipal Officer and Dy. Director Education were given right to award maximum 1/2 marks to the candidate, whereas the Chairman Education Committee and President Standing Committee were given right maximum marks upto 4. 25. Thus, the opinion of subject expert and Dy. Director Education had no weight or negligible weight. After hearing the appeal Collector has allowed the application on the ground that the distribution of marks amongst the members of the Selection Committee was improper. Under the notification of the State Govt. President Municipal Council is the representative of the State Government, but President of Municipal Council has not been called for the selection of teachers. Division of marks between members were improper. Subject experts should have been allowed to award higher marks so they can properly evaluate the qualification of candidates and the appeal was allowed and selection was set aside with direction to Nagarpalika to hold interview strictly in accordance with Madhya Pradesh Nagarpalik Shiksha Karmi Bharti Tatha Seva Sharten Niyam, 1998 (hereinafter referred to as rules, 1998 ). ( 3. ) ON being aggrieved by order of Collector writ petition was filed by respondent No. 1 before the Single Bench. Single Bench has allowed the appeal and quashed the order passed by the Collector. It is held by the Single Bench that since the appellant participated in the selection proceedings and after having failed in the selection he has challenged the selection. Appellant was estopped from challenging the selection. Single Bench has allowed the appeal and quashed the order passed by the Collector. It is held by the Single Bench that since the appellant participated in the selection proceedings and after having failed in the selection he has challenged the selection. Appellant was estopped from challenging the selection. Apart from the fact the respondent Rajeev Kumar Tripathi has obtained 67. 97% marks in M. Sc. by Chemistry, whereas the appellant Jitendra Kumar Gupta has secured only 57. 42% marks. Single Bench further held that the assessment has properly been done by the selection committee. In the absence of any allegation of bias, malafide or selection being vitiated on any other grounds raised in the petition selection can not be set at naught. As regards allotment of marks by various members it is held that the selection committee is free to fix its norms in the selection and if the norms fixed are reasonable and in accordance with law not fault can be found with the same and if the selection committee has laid down its norms they can not be questioned in the Court and the procedure adopted by the selection committee is fair and reasonable. The Collector while passing the order has not considered the aforesaid facts and without any justification and without there being any reasonable cause has interfered with the selection procedure and quashed the order (Annexure P-1), dated 21-9-1996 by the Collector. This appeal is filed against the order of Single Bench. ( 4. ) FOLLOWING preliminary objections are raised by the Counsel for respondent No. 1:- (1) That this LPA is not maintainable as Single Bench has exercised the jurisdiction under Article 227 of the Constitution of India. (2) That Collector had no jurisdiction to hear the appeal and order of Collector is without jurisdiction. Counsel for the respondent No. 1 therefore submitted that this appeal be dismissed as not maintainable. ( 5. ) WE deal with the first question regarding maintainability of appeal. After passing of the order by Collector writ petition was filed by respondent under Article 226/227 of Constitution of India. Counsel for the respondent No. 1 therefore submitted that this appeal be dismissed as not maintainable. ( 5. ) WE deal with the first question regarding maintainability of appeal. After passing of the order by Collector writ petition was filed by respondent under Article 226/227 of Constitution of India. Relief sought in the writ petition is reproduced below:- (i) This petition may kindly be allowed and the order (Annexure P-1) passed by the Collector, Gwalior may be quashed by issuing a writ of certiorari under Article 226 of the Constitution of India; and It is further prayed that the order of cancellation of the petitioners appointment order (Annexure P-1) may be quashed. and It is also prayed that a writ in the nature of mandamus may be issued restraining the respondents to hold fresh selection process till the pendency of this petition. ( 6. ) THUS, petitioner in the writ petition has challenged the order (Annexure P-1) passed by the Collector Bhind and sought a writ in the nature of certiorari under Article 226 of the Constitution of India. Thus petition before Single Bench was essentially under Article 226 of Constitution of India and Single Bench has exercised the jurisdiction under Article 226 of the Constitution. In view of the aforesaid pleadings before the Single Bench this appeal under Clause 10 of the Letters Patent is maintainable. ( 7. ) AS regards second objection that the Collector had no jurisdiction to entertain the appeal against the selection, Rule 12 of Rules, 1998 provides that appeal against any order passed under the Rules may be filed, in the case of Municipal Corporation, to the Divisional Commissioner and in the case of Municipality and Nagar Panchayat, to the Collector. Rules in Hindi if literally translated provides that any order passed under this rules shall be appealable and an appeal shall lie against order passed under the relevant Act and bye-laws and rules made thereunder. Original Hindi text of the rules is reproduced below:- 12- vihy-and bu fu;eksa ds v/khu ikfjr vknsk ds fo:)dksbz vihy lqlaxr vf/kfu;e ds mica/kksa rfkk muds v/khucuk, x, fu;keksa ds vuqlkj dh tk,xha** ( 8. ) THUS, from bare reading of provisions it is clear that an appeal will lie under the relevant Act and its provision and rules made thereunder. ) THUS, from bare reading of provisions it is clear that an appeal will lie under the relevant Act and its provision and rules made thereunder. Since the selections were in the Nagar Panchayat then provisions of M. P. Municipalities Act will be applicable. Section 94 of the M. P. Municipalities Act relates to the appointment of staff. Section 95 of the Act provides for framing of rules by the State Government in respect of qualification, recruitment, appointment, leave, scale of pay, all allowances by whatever name called, loan, pension, gratuity, compassionate fund, provident fund, annuity, dismissal, removal, conduct and other departmental punishment and appeal and service conditions for Municipal employees other than a member of the State Municipal Service. Madhya Pradesh Municipal Employees (Recruitment and Conditions of Service) Rules, 1968 (hereinafter referred to as recruitment Rules, 1968) have been framed by the State Government under Sub-section (1) of Section 355 read with Section 95 of the M. P. Municipalities Act, 1961. Rule 56 of the Recruitment Rules, 1968 provides that subject to the provisions contained in Rule 55 every municipal employee, other than the employee specified in Sub-section (4) of Section 94 of the Act, drawing Rs. 20/- per mensem or above shall have a right of appeal against the order of the Council or the Standing Committee, to the Collector. The order of Collector shall be final in the case of a municipal employee drawing less than Rs. 50/per mensem and shall not be subject to revision. A second appeal shall lie to the Commissioner against the order of the Collector under Sub-rule (1) in the case of an employee drawing Rs. 50/per mensem or above and further revision lies before the State Government against an order passed by the Commissioner in second appeal under Sub-rule (2) of Rule 56 in the case of an employee drawing Rs. 150/-per mensem and above. Thus, Rule 12 of the Rules, 1998 read with the relevant Act and rules made thereunder specifically provides an appeal against the order to the Collector, second appeal to Commissioner and revision before the State Government. In this case order of Collector in appeal was straightway challenged before the Single Bench before availing remedy of appeal and revision. However, on bare reading of relevant provisions as indicated above, we hold that the appeal before the Collector of the District was maintainable. In this case order of Collector in appeal was straightway challenged before the Single Bench before availing remedy of appeal and revision. However, on bare reading of relevant provisions as indicated above, we hold that the appeal before the Collector of the District was maintainable. Under Rule 12 of the Rules, 1998 coupled with Sections 94 and 95 of the Act and rules framed thereunder, i. e. , Recruitment Rules, 1968, appeal before the Collector was maintainable. Contention of the Counsel for the respondent is that appeal against resolution passed by the Selection Committee was not maintainable. However, on perusal of the order passed by the Collector, it is found that an appeal was filed by the appellant against the resolution dated 8-7-1998 and order of Chief Municipal Officer, Nagar Panchayat, Gormi, dated 9-7-1998 challenging the selection at No. 3 of the order, Le. , of respondent No. 1 Rajeev Kumar Tripathi. ( 9. ) IT is true that appeal against resolution was not maintainable as rules are silent about entertaining appeal against resolution, but Rule 56 of the Recruitment Rules, 1998 provides that right of appeal against the order of Council or Standing Committee lies to the Collector and Rule 12 provides that appeal shall lie against the selection before the authority under the relevant provisions of the Act and its bye-laws. Thus, on perusal of Rule 56 of the Recruitment Rules read with Rule 12 of the Rules, 1998, it is apparent that the appeal lay before the Collector of the District. Since these rules do not provide for further appeal therefore further appeal under these rules was not maintainable. ( 10. ) NOW the question involved in the case is whether Collector was justified in interfering with the process of selection. Rule 5 of Rules, 1998 relates to methods of recruitment and Sub-rule (7) provides that after scrutiny of the applications received, categories merit list of the candidate belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes and general category shall be prepared on the basis of the marks obtained in the qualifying examination prescribed for the post on the basis of the number of vacancies in each category three times of number of vacancies to be filled in each category shall be called for interview or and test according to the merit list. Such candidates who have worked minimum for [one session which shall not be less than] in the school of a Municipality will be called for interview or test. ( 11. ) RULE 9 provides for awarding marks in the following manner:- (a) 60% marks for marks obtained in the qualifying examination specified in the Schedule. Note :-- Candidates of professional courses shall be given weightage only on the basis of marks obtained in theory examination at the time of giving weightage for the marks of specified examination. (b) Upto 25% marks shall be awarded for teaching experience in a school concerned municipality and other equivalent schools of similar teaching experience. The decision of Education Committee regarding the certificate of teaching experience and its validity shall be final. (c) 15% marks for oral test which shall include the following :- (i) Communications skills in local dialect, (ii) Knowledge of local environment, (iii) General knowledge, (iv) Training and Teaching Aptitude, (d) Any other test which the Selection Committee may deem fit. (e) All other things remaining the same, in the final selection, those who have teaching experience of school of municipality will be given preference. (ii) Select List of each category shall be prepared on the basis of the above assessment in order of merit and shall include 5 names or 10% names whichever is more in the waiting list which shall be valid for nine months. The integrated selection list for appointment equal to the total number of vacancies shall be prepared in such a manner that the name of the candidate securing highest marks shall be placed at the top and other names shall be written in descending order, first equal to the number of vacancies of general category. The names of the candidates of reserved category included therein shall not be counted against that reserved category. Thereafter names of the candidates of reserved categories shall be included in descending order upto the total number of vacant posts in different categories. In addition 5 names or 20% names shall also be kept in the Integrated Waiting List following this criterion]. " ( 12. ) HOWEVER, Sub-rule (e) provides for 15% marks for oral test which shall include five categories (i), (ii), (iii), (iv) and (v) as mentioned in Sub-rule (e ). In addition 5 names or 20% names shall also be kept in the Integrated Waiting List following this criterion]. " ( 12. ) HOWEVER, Sub-rule (e) provides for 15% marks for oral test which shall include five categories (i), (ii), (iii), (iv) and (v) as mentioned in Sub-rule (e ). Sub-rule (8) provides for constitution of Selection Committee, which should consist of members as specified in Schedule II by the Municipality. Schedule II of the Rules provides that for the post of Shiksha Karmi Grade-I the candidate must possess IInd Class Post Graduate Degree in the related subject or equivalent. Thus, minimum qualification is Post Graduate Degree in the related subject or equivalent. Under Schedule II Selection Committee shall consist of following :- (i) Chairman Standing Committee. (ii) Chief Municipal Officer of the concerned Municipality. (iii) Deputy Director Education or Assistant Commissioner, Tribal Development (Member Secretary ). (iv) Two subject experts nominated by Education Committee out of which one shall be woman. (v) All the members of the Education Committee, out of which atleast one member should belong to Scheduled Caste or Scheduled Tribe or Other Backward Classes. If no member of Scheduled Caste or Scheduled Tribe is in Education Committee, then in that event any member nominated by Municipal Council. ( 13. ) RULE 2 (c) of the Rules, 1998 defines "committee", which means the Selection Committee or Promotion Committee constituted to appoint or promote Shiksha Karmis as given in the Schedules II and IV respectively. Thus, the Selection Committee should consist of the President of the Nagar Panchayat, Chief Municipal Officer, Dy. Director Education or Assistant Commissioner, Tribal Welfare, as the case may be (as Member Secretary ). Two experts in the subject nominated by the Nagar Panchayat or by Council of Nagar Panchayat, all Members of the Advisory Committee relating to the Education Department. ( 14. ) IN place of President Nagar Panchayat, the meeting was presided over by the President of the Education Committee of the Nagar Panchayat. Dy. Director Education was not shown as the Member Secretary of the Selection Committee. Rules were filed by the respondents before the Single Bench where column No. 6 of Schedule II was substituted by Amendment on 15-10-1998. ) IN place of President Nagar Panchayat, the meeting was presided over by the President of the Education Committee of the Nagar Panchayat. Dy. Director Education was not shown as the Member Secretary of the Selection Committee. Rules were filed by the respondents before the Single Bench where column No. 6 of Schedule II was substituted by Amendment on 15-10-1998. From the aforesaid rules the Selection Committee was required to be presided over by the Chairman Standing Committee of the Municipal Council but on the contrary a meeting was presided over by the President of Education Committee, Nagar Panchayat. Dy. Director Education has not been shown as Member Secretary of the Selection Committee. In this case the selection shall be governed by the existing rules, which came into force on 28th March, 1998 and will not be governed by amending rules, which came into force from 15- 10-1998. Amended Rules came into force after the selection, therefore, those rules will not be applicable. Thus, the committee was required to be formed strictly in accordance with Schedule II of the Rules. ( 15. ) THUS, the question relates to the allotment of marks. 15% marks have been kept for oral test and the oral test shall consist of following :- (i) Communications skills in local dialect, (ii) Knowledge of local environment, (iii) General knowledge, (iv) Training and Teaching Aptitude, (v) Any other test which the Selection Committee may deem fit. However, rules further provide that all other things remaining the same, in the final selection, those who have teaching experience of school of municipality will be given preference. Thus, if the Selection Committee so decided it could have divided 15% marks for each category mentioned in the rules and each member ought to have decided for dividing the marks in each head for allotting to each candidate and each member was entitled to allot the marks out of 15 marks, but in this case each member was allotted maximum marks out of which he was required to award marks to each candidate. Division of marks is as under :- (1) Chairman Standing Committee 4 1/2 marks (2) President of Education Committee 3 1/2 marks (3) Chief Municipal Officer 1 mark (4) Dy. Director Education 1 1/2 marks (5) Members of Education Committee Total 4 1/2 marks (6) Subject expert (man) 1/2 mark (7) Subject expert (woman) 1/2 mark ( 16. Division of marks is as under :- (1) Chairman Standing Committee 4 1/2 marks (2) President of Education Committee 3 1/2 marks (3) Chief Municipal Officer 1 mark (4) Dy. Director Education 1 1/2 marks (5) Members of Education Committee Total 4 1/2 marks (6) Subject expert (man) 1/2 mark (7) Subject expert (woman) 1/2 mark ( 16. ) COUNSEL for the respondents submitted that this distribution of marks is in pursuance of circular of the State Government dated 25-4-1998 filed as Annexure R (5) 2 with the return before the Writ Court. The condition is that the President and Member of Selection Committee will divide the marks of interview with the consent of all the members, such decision shall be unanimous decision. It is therefore contended that in the light of Annexure R (5) 2 the Chairman had a right to divide the marks. It is further contended that the Member of Selection Committee has not objected to division of marks. ( 17. ) QUESTION involved in the case is whether the purpose of division of marks of interview requires consideration. Circular dated 25-4-1998 provides that the marks for interview are required to be divided. Only question is whether the right of awarding marks of individual member can be divided. ( 18. ) 15% marks shall be divided strictly under Rule 5 (9) (e), Le. , (i) capacity to talk in local language, (ii) knowledge of local environment, (iii) General Knowledge, (iv) interest in teaching and training, and (v) any other qualification, which the selection committee may deem fit. In the aforesaid five criteria marks were required to be divided. Intention of the circular is for division of marks for each head and not the division of marks between the members. Very strange phenomenon has taken place. Experts of the subject were required to award maximum 1/2 mark out of 15 marks, thereby the intention of legislature for keeping the subject expert has been nullified by empowering him to award not more than 1/2 marks, out of 15% marks. Thus, this division of marks amongst the members of the Selection Committee is not only arbitrary but unreasonable and the manner by which experts in the subject were allotted half marks each. Similarly Dy. Director Education was also required to award marks to the candidate out of half marks only. Thus, this division of marks amongst the members of the Selection Committee is not only arbitrary but unreasonable and the manner by which experts in the subject were allotted half marks each. Similarly Dy. Director Education was also required to award marks to the candidate out of half marks only. Marks under each head as the committee may deem fit should have been decided and each member shall have a right to award out of the said 15% marks to the candidates. On perusal of record and selection procedure it is apparent that Chairman of Standing Committee has arbitrarily divided the marks amongst the members and not on the various heads of the quality of the candidates. The procedure so adopted by the Selection Committee was wholly incorrect and contrary to the legislative intent for selection of Upper Division Teacher. ( 19. ) WE are therefore of the opinion that the Collector has not committed any error in setting aside the selection as the members of the Selection Committee were not having equal power in allotment of marks reserving maximum number of marks with the President Standing Committee and President Education Committee, Le. , 8 marks and all the three members were having 4 1/2 marks. Thus 12 marks were retained by elected representatives and 1 1/2 marks with the Chief Municipal Officer each, subject expert was required to award out of 1/2 marks only and Dy. Director Education was also required to award out of 1/2 marks. This is not the intention of legislature for division of marks. If circular is issued by the State Government that circular is also contrary to Rules of 1998. 15% marks shall include five qualifications and for each head mentioned in Rule 5 (9) (e) marks of interview could have been divided. Thus, we are of the opinion that the division of marks by the Selection Committee was arbitrary and improper and such selection can not be validated. Collector has rightly set aside the selection and directed fresh selection. We are of the opinion that the order passed by the Collector was fully justified and it did not require any interference in the writ jurisdiction. ( 20. ) APEX Court in the case of National Institute of Mental Health and Neuro Sciences v. Dr. Collector has rightly set aside the selection and directed fresh selection. We are of the opinion that the order passed by the Collector was fully justified and it did not require any interference in the writ jurisdiction. ( 20. ) APEX Court in the case of National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman ( AIR 1992 SC 1806 ) has held in Para 8 that the procedural fairness is the main requirement in the administrative action. The fairness or fair procedure in the administrative action ought to be observed. The Selection Committee can not be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. If Selection Committee acts contrary to settled norms then certainly this Court will interfere with the selection. If it is shown that the selection was arbitrary or whimsical or it is found that the Selection Committee has not acted fairly then Court can certainly interfere with the selection. ( 21. ) IN the case of Asif Hameed and others v. State of Jammu and Kashmir and others ( AIR 1989 SC 1899 ) it is held in Para 31 of the judgment that the procedure demonstrated before the Court has shown that it has totally eliminated the element of discretion and has minimised the scope of favouritism. In the case of Suneeta Aggarwal v. State of Haryana and others [ (2002) 2 SCC 615] it is held that the appellant having appeared before the Selection Committee without any protest and having taken a chance, then appellant is estopped by her conduct by appearing in the examination. In the case of Chandra Prakash Tiwari and others v. Shakuntala Shukla and others [ (2002) 6 SCC 127 ] it is held that challenge to the process of selection after participating without protest is not proper and party is estopped by his conduct. In the case of Lila Dhar v. State of Rajasthan and others [ (1981) 4 SCC 159 ] it is held in Para 8 that the rules do not provide for the allocation of marks under different heads at the interview-test. The criteria for the interview-test has been laid down by the Rules. It is for the interviewing body to take general decision whether to allocate marks under different heads or to award marks in a single lot. The criteria for the interview-test has been laid down by the Rules. It is for the interviewing body to take general decision whether to allocate marks under different heads or to award marks in a single lot. It is for the interviewing body to choose the appropriate method of marking at the selection to each service. In the case of Ajay Hasia and others v. Khalid Mujib Sehravardi and others [ (1981) 1 SCC 722 ] in Para 18 of the judgment regarding validity of viva voce examination it is held that it is a permissible test for selection of candidates for admissions to a college. This matter related to admission to college and it is held that even in the matter of public employment, the oral interview test 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. In the case of Minor A. Peeriakaruppan and Sobha Joseph v. State of Tamil Nadu and others [ (1971) SCC 38] it is held that the marks in lumpsum are valid. ( 22. ) QUESTION in this case is that the allotment of marks to each member is not warranted by law. There must be fairness in the selection. Each member of the Selection Committee has the same power to judge the qualities of the candidates. The members may allot marks in lumpsum or if committee decide unanimously then marks may be divided in different heads, but the division of marks amongst the members is not permissible under the law and power of allot higher marks to the Chairman of Standing Committee and Chairman of Selection Committee and power to award only half marks to the expert in the subject and to the Government official demonstrates that there is no fairness in the selection and the action of such division is arbitrary and contrary to the settled principle of law. ( 23. ) IN the result we hold that the Collector has rightly set aside the selection on the basis of unfair marking. As regards estoppel is concerned, if the selection lacks fairness then candidate has a right to challenge the selection. ( 23. ) IN the result we hold that the Collector has rightly set aside the selection on the basis of unfair marking. As regards estoppel is concerned, if the selection lacks fairness then candidate has a right to challenge the selection. The candidate had no knowledge about the division of marks between the members. He acquired knowledge after selection, therefore selection has rightly been set aside by the appellate authority with a direction to hold fresh selection. We therefore, hold that the appellate authority has rightly held that the selection lacked fairness and in the absence of fair play he has rightly set aside the selection. Since it is held that the entire selection process lacked fair play, therefore entire selections are set aside. However, Nagar Panchayat will be at liberty to select the candidates afresh after giving opportunity to all selected candidates as well as other eligible candidates. The employees who are working on the post shall be allowed to continue till the fresh selections are held. ( 24. ) IN the result this appeal succeeds and is allowed. Order passed by the Single Bench is set aside and the order passed by the Collector/appellate Authority is restored with the aforesaid modification.