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2019 DIGILAW 234 (CAL)

Md. Zakir Hossain v. State of West Bengal

2019-02-18

BIBEK CHAUDHURI, DIPANKAR DATTA

body2019
JUDGMENT : DIPANKAR DATTA, J. 1. An advertisement dated January 1, 2017 was issued inviting online applications for recruitment to Group-D posts in various offices of the State Government. It would appear from such notice that 6,000 vacancies were sought to be filled up in the manner as follows: Sl. No Category (Sub-category) No. of vacancies 1 Unreserved (UR) 2742 2 Unreserved (E.C.) 381 3 Unreserved (ESM) 179 4 Schedule Caste 1165 5 Schedule Caste (E.C.) 63 6 Schedule Caste (ESM) 25 7 Schedule Tribe 336 8 Schedule Tribe (E.C.) 20 9 Schedule Tribe (ESM) 9 10 OBC-A 548 11 OBC-A (E.C) 28 12 OBC-A (ESM) 10 13 OBC-B 380 14 OBC-B (E.C) 21 15 OBC-B (ESM) 12 16 PWD (UR) 74 17 MSP (UR) 7 TOTAL 6000 While E.C. in the above cage denotes "Exempted Category", ESM denotes "Ex-serviceman". 2. Being in search of public employment, the six petitioners before us submitted their applications online and offered their candidature for consideration. Incidentally, the first petitioner belongs to OBC (E.C.) and is also a person with disability, the second and the sixth petitioners belong to OBC-A, the third petitioner belongs to OBC-B, and the fourth and the fifth petitioners are Schedule Caste candidates. 3. The online applications submitted by the petitioners were found to be in order and they were issued admit cards calling upon them to participate in a written examination for which 85 marks were earmarked. After having participated in the written examination, conducted on May 14, 2017, the first petitioner submitted a representation dated June 7, 2017 before the Chairman, West Bengal Group 'D' Recruitment Board (hereafter 'the Board') complaining that the reservation policy had not been duly adhered to resulting in there being real likelihood of the reserved categories losing out on appointment. The main contention of the first petitioner was that vacancies which should have been earmarked for OBC-A (E.C.), OBC-B (E.C.), OBC-A, OBC-B and PWD (UR) had not been appropriately earmarked and that such of the vacancies, which ought to be filled up by reserved candidates, had been thrown open for being filled up by un-reserved candidates. The Chairman of the Board did not respond, resulting in the first petitioner along with the others presenting an application under section 19 of the Administrative Tribunal Act, 1985 before the West Bengal Administrative Tribunal (hereafter 'the tribunal') on August 3, 2017. The Chairman of the Board did not respond, resulting in the first petitioner along with the others presenting an application under section 19 of the Administrative Tribunal Act, 1985 before the West Bengal Administrative Tribunal (hereafter 'the tribunal') on August 3, 2017. In such application, the petitioners, inter alia, prayed for the following relief: "(a) Order directing the respondents to forthwith Review and Recast the vacancy position declared in respect of respective categories in accordance with Reservation Policy, Statutory Acts and Rules framed in maintaining reservation and in accordance with Model 100 Point Roster as framed in the matter of selection and offering employment in the Recruitment process, 2017 as initiated for the post of Group 'D' in various offices under West Bengal Government; (b) Direct the Respondent to declare due vacancies for the respective categories in respect of Recruitment process, 2017 for the post of Group-'D' staffs under the State of West Bengal in accordance with the Reservation Policy, statutory Rules framed in this regard and as per Model 100 Point Roster framed in this regard;" In paragraph 6 (19) of the application, the petitioners specifically pleaded that the result of the written examination had not been published but the same was in process. 4. The original application of the petitioners came to be registered as OA 723 of 2017 and was taken up for consideration along with OA 943 of 2017 (Pranab Ray and anr. vs. State of West Bengal and ors.). 5. Learned advocate representing the State of West Bengal before the tribunal contended that there was no error in calculation of vacancies to be filled up by the reserved candidates. Such submission was adopted by the learned advocate representing the Board. Both of them, however, contended that the petitioners having participated in the selection process consciously and they having been unsuccessful in their attempt to secure public employment, cannot challenge the selection process. 6. The tribunal decided the question of maintainability first and upheld the objection raised by the learned advocates for the respondents. By a judgment delivered on August 16, 2018, the tribunal dismissed the original applications. 7. The soundness of the said judgment of the tribunal is under challenge in this writ petition. 8. 6. The tribunal decided the question of maintainability first and upheld the objection raised by the learned advocates for the respondents. By a judgment delivered on August 16, 2018, the tribunal dismissed the original applications. 7. The soundness of the said judgment of the tribunal is under challenge in this writ petition. 8. The question arising for decision on the factual matrix of the case before the tribunal was recorded in the impugned judgment, reading as follows: "It is an admitted position that on January 1, 2017 an advertisement was issued for recruitment to Group 'D' posts. Therein it was notified that there are 6,000 vacancies out of which 513 seats are reserved. The applicants had applied for the post. Admit cards were issued. The applicants participated in the selection process. It appears that after being unsuccessful they have challenged the selection process by filing the Original applications particularly with regard to reservation of vacancies (underlining for emphasis by us). The question is after participating in the selection process are they entitled in law to challenge the said process". 9. It appears on a further reading of the impugned judgment that the tribunal considered various decisions of the Supreme Court and took note of what, in the view of the tribunal, was the settled position of law. Applying such law, it proceeded to dismiss the original applications. We quote below a relevant paragraph from the impugned judgment recording the same: "Therefore, the settled position of law is that a candidate, aware of the stipulations and norms of recruitment process, participating in a selection process, after being unsuccessful in the selection process, cannot turn round and challenge the said process". 10. Mr. Roy, learned advocate appearing for the petitioners vehemently contended that the tribunal was in gross error in appreciating the factual matrix of the case as pleaded in OA 723 of 2017. Although it is true that the petitioners had approached the tribunal after participating in the written examination, the result of such examination had not been declared and the tribunal erroneously assumed that the petitioners, after being unsuccessful in the written examination, had approached it. According to him, the respondents are bound to follow the policy of reservation and any deviation in this regard would amount to breach of the constitutional norms and principles in relation to reservation. According to him, the respondents are bound to follow the policy of reservation and any deviation in this regard would amount to breach of the constitutional norms and principles in relation to reservation. The respondents not having earmarked appropriate number of vacancies in terms of the 100 point roster, the process is glaringly illegal and mere participation in such process by the petitioners without anything more did not lead to a forfeiture of their right to question the process before the tribunal. Referring to the decision of the Supreme Court reported in (Raj Kumar v. Shakti Raj, (1997) 9 SCC 527 ), it was contended that the case at hand was a more glaring instance of illegality as compared to the illegality found in Raj Kumar (supra) and, therefore, the principle of estoppel by conduct, waiver and acquiescence would have no application. He, accordingly, prayed for an order setting aside the judgment of the tribunal and for an order of remand to hear the parties on the merits of the controversy raised. 11. Per contra, Mr. Bandyopadhyay, learned Junior Standing Counsel appearing for the respondents contended that the impugned judgment of the tribunal does not suffer from any infirmity warranting interference by this Court. While conceding that the results of the written examination had not been published by the time the petitioners approached the tribunal, it was submitted by him that the results had been declared during the pendency of the original application and the fact that the tribunal had referred the petitioners as unsuccessful candidates must be understood in the light of the development subsequent to presentation of the original application. It was his categorical contention that the petitioners took a calculated chance of selection and having not objected to the manner of reservation of vacancies as shown in the notice dated January 1, 2017 prior to their participation in the written examination, it ought to be held that they had waived their right to question the process before the tribunal. While praying for dismissal of the writ petition, Mr. Bandyopadhyay relied on decisions of the Supreme Court, which the tribunal referred to in the impugned judgment. 12. We have heard the parties and considered the decisions that the tribunal did and did not consider. 13. While praying for dismissal of the writ petition, Mr. Bandyopadhyay relied on decisions of the Supreme Court, which the tribunal referred to in the impugned judgment. 12. We have heard the parties and considered the decisions that the tribunal did and did not consider. 13. The passage from the impugned judgment, extracted in paragraph 8 (supra), clearly reveals the tribunal's finding of fact that the petitioners "after being unsuccessful", had "challenged the selection process" by filing the original application questioning the reservation of vacancies. This being the perception of the tribunal as regards the point of time when the original application was presented before it, obviously it drifted away from the main issue and proceeded to apply the law laid down in the decisions of the Supreme Court, mention of which we find in its impugned judgment. 14. We have no hesitation to hold that the tribunal erroneously perceived the petitioners to be unsuccessful candidates who had approached it upon the results of the written examination not being palatable to them. 15. Recording this finding alone, we could have remitted the matter to the tribunal for fresh decision but before doing so, we consider it proper to deal with the decisions of the Supreme Court that weighed with the tribunal to hold that the original application was not maintainable. We may observe here that in course of hearing other writ petitions arising out of judgments and orders passed by the tribunal, we have found dismissal of original applications being resorted to on application of the law laid down in such decisions almost mechanically without even considering the nature and extent of illegality in the process of selection complained of and its effect on the administration of justice in public service. It is not that administering justice is the exclusive prerogative of the judiciary; under the Constitution it is also the duty of the executive to administer justice within its sphere. If the executive fails in its duty, it is for the tribunals to set the wrong right. At times, the tribunal has been remiss necessitating the further opinion that follows. 16. We wish to examine now the factual matrix and the law laid down by the Supreme Court in each of the decisions on the point that was placed before the tribunal for its consideration. In so examining, we start with the oldest decision. At times, the tribunal has been remiss necessitating the further opinion that follows. 16. We wish to examine now the factual matrix and the law laid down by the Supreme Court in each of the decisions on the point that was placed before the tribunal for its consideration. In so examining, we start with the oldest decision. A. (Om Prakash Shukla v. Akhilesh Kumar Shukla, (1986) Supp1 SCC 285) : The challenge before the Supreme Court was to the decision of the High Court of Allahabad whereby, while allowing a writ petition of the first respondent, it quashed the results of the competitive examination held by the District Judge of Kanpur in September, 1981 for selecting candidates for appointment to the vacancies in Grade III of the ministerial staff in the subordinate courts in the district of Kanpur. There were Rules framed in 1947, 1950, 1969 and 1975. It was after the promulgation of the 1975 Rules that the competitive examination, with which the Supreme Court was concerned, was held by the District Judge of Kanpur. The said examination was, however, held in September, 1981 in accordance with the 1950 Rules and its results were announced on July 25, 1983. The 1969 Amending Rules were not, however, followed. The first respondent and many others appeared in the said examination. But he was ultimately not successful. Aggrieved by the result of the examination, he filed the writ petition before the High Court of Allahabad. His principal contention before the High Court was that the competitive examination which had been held in accordance with the 1950 Rules was an unauthorised one and that it should have been held in accordance with the 1947 Rules, as amended by the 1969 Amending Rules. The High Court was of the view that since within the judgeship of Kanpur the examination had not been held in accordance with the syllabus prescribed by the 1947 Rules, as amended by the 1969 Amending Rules, all those who were successful and selected for appointment had no legal right to be appointed. It, accordingly, quashed the examination held in 1981 by the District Judge of Kanpur, the results of which had been announced in 1983, by its judgment dated April 12, 1985. It, accordingly, quashed the examination held in 1981 by the District Judge of Kanpur, the results of which had been announced in 1983, by its judgment dated April 12, 1985. The High Court clarified that all the candidates who had applied for the 1981 examination were, however, entitled to appear for the fresh examination to be held by the District Judge of Kanpur. It further observed that in the other districts of Uttar Pradesh where examinations had been held under the 1950 Rules and which had not been challenged, the selection and appointment made in pursuance thereof should be treated as valid and would not be rendered invalid on the ground that any other view would cause great hardship "which will not be in the public interest". The result of the judgment was that only those who had been selected or appointed on the basis of the competitive examination held by the District Judge, Kanpur lost their appointments or the right to be appointed but all other candidates who had been selected on the basis of examinations held in accordance with the 1950 Rules in the rest of the State of Uttar Pradesh continued in their posts. Upon hearing the parties, the Supreme Court held that the 1950 Rules were operative even in the year 1981 and hence, the examinations held according to them cannot be held to be bad. It was thereafter that the Court, providing an additional reason to reverse the judgment impugned, had the occasion to observe in paragraph 24 as follows: "24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination." It is manifest from the above extract why the Supreme Court interfered with the judgment of the High Court. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination." It is manifest from the above extract why the Supreme Court interfered with the judgment of the High Court. Primarily, the Court intended that all candidates who had taken the competitive examination, which was conducted in accordance with the 1950 Rules, be treated alike : candidates hailing from only one district may not be treated differently. Appearance in the examination by the first respondent without raising any protest was only assigned as an additional reason. B. (Madan Lal v. State of J&K, (1995) 3 SCC 486 ) : Under challenge before the Supreme Court was the process of selection of Munsifs in the State of Jammu and Kashmir undertaken by the Jammu and Kashmir Public Service Commission pursuant to an advertisement notice. Written test was followed by viva voce. The Commission prepared a select list of twenty successful candidates in the order of merit on the basis of the aggregate of marks obtained by them in written as well as viva voce test. The main contention of the petitioners was that viva voce test was so manipulated that only preferred candidates, by inflating their marks in the viva voce test, were permitted to get in the select list. Prior to dealing with the first contention raised on behalf of the petitioners, recorded in paragraph 8 of its decision, the Supreme Court held in paragraph 9 as follows: "9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner." We would read this decision to be an authority for the proposition that unfairness of interview process cannot be challenged by any candidate who takes a chance of selection and appears before the interview board and ultimately, comes out unsuccessful. Although Om Prakash Shukla (supra) was applied, the controversy emerging for decision in the two cases were quite different. C. (Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 ) : Challenge to promotion of police officers from the rank of Sub-Inspector to Inspector in the State of U.P. in 1997, for vacancies arising between 1992 and 1996, emerged for consideration. The core question arising for consideration was noted in paragraph 4 of the decision reading as follows: "Whether the selection as effected was to be made under the specific police related order of 5-11-1965 or the basis of seniority under the General U.P. Government Servants (Criterion for Recruitment by Promotion) Rules, 1994 framed under Article 209 of the Constitution?" While allowing the appeal and reversing the decision of the relevant High Court, the Supreme Court held that while the doctrine of estoppel by conduct may not have any application, that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. The decision in Om Prakash Shukla (supra) was referred to and the law laid down therein was applied. The decision in Om Prakash Shukla (supra) was referred to and the law laid down therein was applied. After referring to the decision in Madan Lal (supra), the Court observed at paragraph 34 as follows: "34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but 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." This decision, therefore, does not acknowledge that the principle of estoppel by conduct would be attracted by a candidate's mere appearance at the examination. Result of a recruitment examination, if not palatable to an aspiring candidate, cannot give rise to a right of action is the law laid therein. D. (Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100 ) : It would appear that by the decision under challenge, vacancies meant for reserved category were directed to be filled up by general candidates and the cut-off marks were directed to be lowered. The rival contentions were summarized in paragraphs 7 and 8 of the decision. Paragraph 34 of Chandra Prakash Tiwari (supra) was quoted in the decision and other decisions, viz. (Munindra Kumar v. Rajiv Govil, (1991) 3 SCC 368 ) and (Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724 ) were referred to where the same principle was laid down that an unsuccessful candidate has no right to challenge a process of selection after finding the result not palatable. In paragraph 20, however, the Bench acknowledged that "there are certain exceptions to the aforementioned Rules", but the Bench was not concerned therewith. It is, therefore, abundantly clear that there exist exceptions to the rule which, however, were not spelt out. We shall attempt to cull out the exceptions little later. E. (Amlan Jyoti Borooah v. State of Assam and ors, (2009) 3 SCC 227 ) : An advertisement was issued by the State of Assam for filling up 112 vacancies of Sub-Inspectors by direct recruitment. The advertisement mentioned that those candidates who qualify in the written test would be required to appear in physical test and interview. E. (Amlan Jyoti Borooah v. State of Assam and ors, (2009) 3 SCC 227 ) : An advertisement was issued by the State of Assam for filling up 112 vacancies of Sub-Inspectors by direct recruitment. The advertisement mentioned that those candidates who qualify in the written test would be required to appear in physical test and interview. The advertisement further mentioned that the candidates were to appear in the written test, physical test and interview at their own expenses. A written test was held on April 26, 1998 and the candidates who had obtained 40% or more marks were called for interview. It was mentioned in the call letter that in case a candidate was selected in the interview, he would be called for physical test for final selection. Based on this selection method, the respondent State made appointments of 169 candidates sometime around July 4, 2000. The issue involved was whether it was obligatory for the respondent State to conduct selection in the order mentioned in the advertisement, namely, written test, then physical test and then interview, or the State could change the order of selection by holding written test, then interview followed by physical test. The Supreme Court held that the selection process should have been conducted in the order mentioned in the advertisement but it did not interfere with the selection already made, because the appellant had subjected himself to a faulty selection process without questioning it. It was also held that the appellant having accepted the change in the selection procedure sub-silentio by not questioning the appointment of 169 candidates, cannot now be permitted to contend that the procedure adopted was illegal; he is estopped and precluded from doing so. It would, thus, appear from the above that acceptance of change in the selection procedure by the appellant, subjecting himself to a faulty process of selection and his omission to assail the appointment of 169 candidates were the prime reasons for dismissal of the appeal. F. (Manish Kumar Shahi v. State of Bihar and ors., (2010) 12 SCC 576 ) : The process there pertained to selection of Civil Judges (Junior Division) for recruitment to the Bihar Civil Services (Judicial Branch). The process comprised of a written examination and a viva voce, for which 850 and 200 marks respectively had been earmarked. F. (Manish Kumar Shahi v. State of Bihar and ors., (2010) 12 SCC 576 ) : The process there pertained to selection of Civil Judges (Junior Division) for recruitment to the Bihar Civil Services (Judicial Branch). The process comprised of a written examination and a viva voce, for which 850 and 200 marks respectively had been earmarked. The petitioner before the Supreme Court knowing fully well that more than 19% marks had been earmarked for the viva voce, took the written examination. He approached the High Court only when his name did not figure in the merit list prepared by the Bihar Public Service Commission. The Supreme Court held that earmarking 200 marks for viva voce as against 850 marks for written examination did not violate the doctrine of equality embodied in Articles 14 and 16 of the Constitution. In addition, the Court held that having taken part in the selection process knowing fully well that more than 19% marks had been earmarked for viva voce, the petitioner was not entitled to challenge the criteria or process of selection. The conduct of the petitioner in approaching the High Court after finding that his name does not figure in the merit list prepared by the Commission clearly disentitled him from questioning the selection and the High Court did not commit any error in refusing relief while dismissing the writ petition. Knowledge of the petitioner that as high as 19% marks being earmarked for the viva voce, led the Court to hold that he is not entitled to any relief having taken a chance of selection. G. (Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309 ) : An advertisement was issued inviting applications for appointment on the post of physiotherapist. Candidates who failed to clear the written test presented a writ petition and prayed for quashing the advertisement and the process of selection. They pleaded that the advertisement and the test were ultra vires the provisions of the Uttar Pradesh Medical Health and Family Welfare Department Physiotherapist and Occupational Therapist Service Rules, 1998. A learned Judge of the High Court overruled the objection that the challenge was not maintainable after participation in the selection process on the ground that the process was vitiated due to patent illegality and, in such a case, the principle of waiver cannot be invoked for non-suiting the writ petitioners. A learned Judge of the High Court overruled the objection that the challenge was not maintainable after participation in the selection process on the ground that the process was vitiated due to patent illegality and, in such a case, the principle of waiver cannot be invoked for non-suiting the writ petitioners. Referring to the decision in Om Prakash Shukla (supra), Madan Lal (supra), Manish Kumar Shahi (supra) and certain other decisions, the Supreme Court held in paragraph 24 as follows: "24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents." Here also, knowledge of a faulty process was held to be fatal for the respondent. H. (Chandigarh Administration and anr. v. Jasmine Kaur v. ors., (2014) 10 SCC 521 ) : The matter pertained to admission to medical courses. It was held therein that if any candidate had any grievance with regard to the eligibility from the very first day when the prospectus was issued, he/she cannot fix his/her own time limit for approaching the Court which would show total lack of diligence in his/her decision to work out remedies in the Court of law. While noticing Madan Lal (supra) as well as Om Prakash Shukla (supra), the Court discerned several principles of which the following are relevant for the present discussion : "33.4. When a candidate does not exercise or pursue his/her rights or legal remedies against his/her non-selection expeditiously and promptly, then the courts cannot grant any relief to the candidate in the form of securing an admission. 33.5. If the candidate takes a calculated risk/chance by subjecting himself/herself to the selection process and after knowing his/her non-selection, he/she cannot subsequently turn around and contend that the process of selection was unfair. 33.6. 33.5. If the candidate takes a calculated risk/chance by subjecting himself/herself to the selection process and after knowing his/her non-selection, he/she cannot subsequently turn around and contend that the process of selection was unfair. 33.6. If it is found that the candidate acquiesces or waives his/her right to claim relief before the court promptly, then in such cases, the legal maxim vigilantibus et non dormientibus jura subveniunt, which means that equity aids only the vigilant and not the ones who sleep over their rights, will be highly appropriate." In this case, failure of the concerned student to respond in time proved to be her undoing. I. (Pradeep Kumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493 ) : A process for promotion of constables and head constables to the rank of Sub-Inspectors in the State of Uttar Pradesh had been started in 1999. As per the pattern, the promotion process was to be conducted in three steps: i). the preliminary written examination and infantry test/physical test; ii). main written examination; and iii). interview. The candidates who qualified in the preliminary examination and infantry test/physical test were eligible to appear in the main examination. It was after the declaration of the result of interview that litigation, which ultimately reached the Supreme Court, commenced whereby unsuccessful candidates challenged the interview process on several grounds. While the writ petition filed before the Single Judge of the High Court succeeded, the Division Bench reversed the decision. While dismissing the appeal, the Supreme Court concurred with the Division Bench of the High Court on the points that the appellants had participated in the process of interview and not challenged it till the results were declared, although there was a gap of almost four months between the interview and declaration of result. The Single Judge had interfered noticing substantial departure from the police regulations in the entire process of selection and promotion. The Single Judge had interfered noticing substantial departure from the police regulations in the entire process of selection and promotion. The number of candidates called for interview was much higher than the required number, the sealed cover procedure was not followed for candidates against whom disciplinary or criminal proceedings were pending and their names were also displayed on the tentative list of selected candidates, members of the interview committee did not give separate marks individually but a single collective marking was made for each candidate and the names of persons who are already dead or under training in some other wing of the police department, were also included in the tentative list of selected candidates. In paragraph 17 of the judgment, the Court also held that the candidates cannot approbate and reprobate at the same time, either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted. Although the tribunal quoted some of the sentences from paragraph 17 of the decision in Pradeep Kumar Rai (supra), we find that the last sentence of the paragraph was not quoted. We are minded to hold that the last sentence may have escaped the notice of the tribunal. If properly read and understood, the decision in Pradeep Kumar Rai (supra) is an authority for the proposition that despite participating in an interview but prior to publication of the final result a challenge laid to the selection process on the ground of illegality cannot be held not maintainable. J. (Ashok Kumar v. State of Bihar, (2017) 4 SCC 357 ) : A process was initiated for promotion to Class-III posts from amongst Class-IV employees of a civil court. The selection was to be made on the basis of a written test and interview, for which 85% and 15% marks were earmarked respectively as per norms. Out of 27 (twenty-seven) candidates who appeared in the written examination, 14 (fourteen) qualified. They were interviewed. The committee selected candidates on the basis of merit and prepared a list. The High Court declined to approve the select list on the ground that the ratio of full marks for the written examination and the interview ought to have been 90:10 and 45 ought to be the qualifying marks in the written examination. They were interviewed. The committee selected candidates on the basis of merit and prepared a list. The High Court declined to approve the select list on the ground that the ratio of full marks for the written examination and the interview ought to have been 90:10 and 45 ought to be the qualifying marks in the written examination. A fresh process followed comprising of a written examination (full marks - 90 and qualifying marks - 45) and an interview (carrying 10 marks). On the basis of the performance of the candidates, results were declared and 6 (six) persons were appointed on Class-III posts. It was thereafter that the appellants along with 4 (four) other unsuccessful candidates filed a writ petition before the High Court challenging the order of the High Court on the administrative side declining to approve the initial select list. The primary ground was that the appointment process was vitiated, since under the relevant rules, the written test was required to carry 85 marks and the interview 15 marks. The Supreme Court dismissed the appeals on the grounds that the appellants were clearly put on notice when the fresh selection process took place that the written examination would carry 90 marks and the interview 10 marks. The Court was of the view that the appellants having participated in the selection process without objection and subsequently found to be not successful, a challenge to the process at their instance is precluded. 17. Barring two, in none of the aforesaid decisions rendered post 1997, the decision in Raj Kumar (supra) was considered. Although cited in Manish Kumar Shahi (supra), the Court in its wisdom did not deal with it; whereas, in Ashok Kumar (supra) the said decision was held to be distinguishable. 18. In the impugned judgment too, we do not find any discussion made by the tribunal for holding the decision in Raj Kumar (supra) not to be applicable to the facts at hand. 19. What does Raj Kumar (supra) lay down? It lays down the law that where a selection process is tainted by glaring illegalities, the principle of estoppel by conduct and acquiescence would have no application. The decision in Madan Lal (supra) and other decisions referred to therein were distinguished. Paragraph 16 of the decision gives a clear picture and hence, is quoted below : "16. It lays down the law that where a selection process is tainted by glaring illegalities, the principle of estoppel by conduct and acquiescence would have no application. The decision in Madan Lal (supra) and other decisions referred to therein were distinguished. Paragraph 16 of the decision gives a clear picture and hence, is quoted below : "16. Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 Notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his (sic this) case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law." (underlining for emphasis by us) 20. Let us now take a look at two decisions of the Supreme Court which had not been placed before the relevant Benches while deciding the aforesaid cases. The first decision is reported in (University of Mysore v. C. D. Govind Rao, (1965) AIR SC 491) and the other decision is reported in (Dalpat Abasaheb Solunke v. Dr. B. S. Mahajan, (1990) AIR SC 434). The first decision is reported in (University of Mysore v. C. D. Govind Rao, (1965) AIR SC 491) and the other decision is reported in (Dalpat Abasaheb Solunke v. Dr. B. S. Mahajan, (1990) AIR SC 434). These decisions are authorities for the proposition that selection process can be challenged on limited grounds, i.e., if a binding rule has been contravened while making selection, or if the selection is tainted by illegality, or patent material irregularity in the constitution of the committee or its procedure vitiating the selection or proved mala fide affecting the selection, etc. 21. While deciding FMA 1285 of 2013 (University of Kalyani v. Asitabha Das), a Division Bench of this Court had the occasion to consider all the aforesaid decisions as well as other decisions of the Supreme Court and went on to hold as follows: "51. Disputes relating to selection and appointment invariably involve the question as to who can challenge such process, when, and on what grounds? Obviously the beneficiary of an illegal act or process, being the appointee, will not challenge such act/process. Public interest litigation in service matters is generally not maintainable, except in exceptional cases. More often than not, it is the persons aggrieved by their non-selection/non-appointment, and consequent selection/appointment of others, who seek to pursue their remedy in accordance with law would approach the court to have such process, which they perceive to have been tainted, invalidated. If the challenge is nipped in the bud on the basis of the authorities cited which lay down the law that having participated in the selection process without demur the participating candidate forfeits his right to challenge the process, does it not sort of extend an immunity from judicial scrutiny to such selection process even though the process might have been illegal? Our understanding of the law on the subject does not persuade us to hold that an unsuccessful aspirant for a post can never challenge a selection process after his participation therein. There could be cases where the selection committee selects a candidate, who lacks the essential eligibility criteria for appointment, as in the present case. How would the eligible candidate know that an ineligible candidate would be preferred to him? There could be a case where a candidate is selected, who had not applied within the last date for making the applications fixed in the advertisement. How would the eligible candidate know that an ineligible candidate would be preferred to him? There could be a case where a candidate is selected, who had not applied within the last date for making the applications fixed in the advertisement. How would a candidate, not selected, know before his appearance before the board of selectors that the selectee had not applied within time. Take the case of a candidate who is selected by a board of selectors, one of whom is the close relative of the selected candidate and such relationship is not made known to the other selectors. If the unsuccessful candidate does not have such vital information prior to his appearance before the board of selectors for an interview and if he has access to such information subsequent to the appointment and the selection of the appointee is challenged on the ground of patent illegality or manifest bias, could the selection not be challenged and such challenge entertained on the ground that there has been a patent illegality in the procedure of selection or even mala fides? Or should the door be closed on the face of such an unsuccessful candidate merely because he had not raised any objection at the time of appearance before the board of selectors? If the latter question is answered in the affirmative, we have no hesitation to hold that an illegal selection made by a selecting body would remain beyond the realm of judicial scrutiny. We are also of the view that the decisions in C.D. Govinda Rao (supra), Dalpat Abasahed Solunke (supra) and Raj Kumar (supra) are authorities which permit interference with the decision to appoint following an illegal selection process and in case of glaring illegalities, such as the present one, estoppel, waiver and acquiescence may not have any application depending upon the facts that are presented and established before the court." 22. We share the views expressed in University of Kalyani (supra). 23. In our considered view, what needs to be ascertained by the tribunal/court is whether the aggrieved candidate, who complains of illegality in the selection process had, or had not, due knowledge of the such process being conducted illegally prior to participating in the process and taking a chance of selection. 23. In our considered view, what needs to be ascertained by the tribunal/court is whether the aggrieved candidate, who complains of illegality in the selection process had, or had not, due knowledge of the such process being conducted illegally prior to participating in the process and taking a chance of selection. If it is found that he had knowledge and the deviation from or disregard to the applicable recruitment rules is not glaring but minimal, in the sense that it does not shock its conscience, the court/tribunal ought to stay at a distance. But, in a case where the candidate has knowledge of an illegality, yet, participates in the process but the extent of illegality is such that it can be viewed as "glaring illegality", it is for the tribunal/court to decide the point of maintainability of the challenge judiciously. However, if the candidate does not have knowledge and the process suffers from glaring illegality, the decisions relied on by the tribunal to dismiss the original application of the petitioners would not apply but C. D. Govind Rao (supra), Dalpat Abasaheb Solunke (supra), and Raj Kumar (supra) ought to be applied. 24. The case before us falls in the aforesaid second category. The petitioners had knowledge that the reservation policy was being observed in the breach, yet, they participated in the process. They moved the tribunal before the results were declared. Even if the tribunal were moved after declaration of results, it is necessary to examine the ground of challenge. The ground is, as noted above, breach of the reservation policy. Whether or not the ground is substantiated by the pleadings/evidence on record is altogether a different matter. We are not to examine the ground and give our decision at this stage. However, there cannot be any dispute that the right to reservation in public employment flows from Article 16 of the Constitution of India. The State, in terms of the law enacted for protection of the interest of the backward classes, is mandated not to fill up a reserved vacancy by a general candidate. However, there cannot be any dispute that the right to reservation in public employment flows from Article 16 of the Constitution of India. The State, in terms of the law enacted for protection of the interest of the backward classes, is mandated not to fill up a reserved vacancy by a general candidate. Even though the petitioners might have had knowledge of what they perceive to be a flaw in the notice inviting applications right from the day the same was brought in the public domain and they had participated in the process without raising demur, could it be said that they had waived their right to challenge the notice? Can there be a waiver of a Fundamental Right? The answers to these questions cannot possibly be in the affirmative. The tribunal, in our view, failed to consider the objection to the maintainability of the original application from this perspective and has rendered a decision that we find difficult to sustain. 25. In the final analysis, the writ petition succeeds. The impugned judgment and order being unsustainable in law, stands set aside. The result of this order would be that OA 723 of 2017 shall revive on the file of the tribunal. We request the tribunal to decide the original application on its merits, as early as possible subject to its convenience. 26. There shall be no order as to costs. Bibek Chaudhuri, J. - I agree.