Selection dated 10.04.2010 selecting appellants on the post of Physical Training Instructor (PTI) was set aside ! – Apex court considered the equities and modified the orders When the continuance of a person on a post is by virtue of an interim order, the continuance is always subject to outcome of the litigation. The displacement of appellants from their posts is inevitable consequence of upholding of the judgment of the High Court. A Constitution Bench of this Court in C. Channabasavaih Etc. Etc. Vs. State of Mysore and Others, AIR 1965 SC 1293 has made following observations in paragraph 9 in such a situation, which is beneficial to record, is as follows:- “9. It is very unfortunate that these persons should be uprooted after they had been appointed but if equality and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing in our duty if we did not, even at the cost of considerable inconvenience to Government and the selected candidates do the right thing…………………………” 75. In view of the foregoing discussions and conclusions, we dispose of these appeals with the following directions: (i) The Commission shall conclude the entire selection process initiated by the advertisement No.6 of 2006 as per criterion notified on 28.12.2006 i.e. holding objective type written test of 200 marks and viva voce of 25 marks. All the applicants who had submitted applications in response to the above advertisement including those who were selected shall be permitted to participate in the fresh selection as directed. (ii) The candidates who have been selected and have worked on the post of PTI shall not be asked to refund any of the salary and other benefits received by them as against their working on the posts. No refund shall also be asked from those candidates who after their selection worked and retired from service. (iii) The entire process be completed by the Commission within a period of five months from the date Commission starts working after the present lockdown is over, which was the time fixed by the learned Single Judge for completing the process. (iv) The costs imposed by the Division Bench in paragraph 54 of the judgment of the High Court are deleted except the costs imposed on the Commission. 76. We, thus, while upholding the judgments of the High Court, subject to the modifications as above, dispose of these appeals.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2103 OF 2020
(Arising out of SLP(C) No. 35373 of 2013)
RAMJIT SINGH KARDAM & ORS. …APPELLANT(S)
VERSUS
SANJEEV KUMAR & ORS. …RESPONDENT(S)
WITH
Civil Appeal No.2104 of 2020[@ SLP(C)No.35471/2013],
Civil Appeal No.2105 of 2020[@ SLP(C)No.35466/2013],
Civil Appeal No.2107 of 2020[@ SLP(C)No.35857/2013],
Civil Appeal No.2106 of 2020[@SLP(C)No.35811/2013],
Civil Appeal No.2108 of 2020[@ SLP(C)No.39466/2013],
Civil Appeal Nos.2164-2166 of 2020
[@SLP(C)Nos.5275-5277/2014],
Civil Appeal Nos.2168-2169 of 2020
[@SLP(C)Nos.12403-12404/2014], and
Civil Appeal No.2167 of 2020[@ SLP(C)No.10647/2014].
J U D G M E N T
ASHOK BHUSHAN,J.

  1. These appeals have been filed against the common
    judgment dated 30.09.2013 of High Court of Punjab and
    2
    Haryana dismissing LPA filed by the appellants
    affirming the judgment of learned Single Judge dated
    11.09.2012 by which the Selection dated 10.04.2010
    selecting appellants on the post of Physical Training
    Instructor (PTI) was set aside. All the appeals
    having been filed against the common judgment
    involving common facts and questions of law, for
    deciding the batch of appeals, it shall be sufficient
    to refer pleadings in Civil Appeal No.2103/2020,
    Ramjit Singh Kardam and others versus Sanjeev Kumar
    and others.
  2. The brief facts necessary to be noted for
    deciding these appeals are: –
    2.1. The Haryana Staff Selection Commission
    (hereinafter referred to as Commission)
    vide Advertisement No.6 of 2006 dated
    20.07.2006 invited applications for various
    posts enumerated in different category
    numbers in the Advertisement. Under
    category No.23, 1,983 posts of PTI
    (Physical Training Instructor) were
    3
    advertised. The Advertisement mentioned the
    educational qualifications for the post.
    Advertisement contained a special
    instruction in following words: –
    “SPECIAL INSTRUCTIONS:
    The prescribed essential
    qualification does not entitle
    a candidate to be called for
    interview. The Commission may
    short list the candidates for
    interview by holding a written
    examination or on the basis of
    a rational criteria to be
    adopted by the Commission. The
    decision of the Commission in
    all matters relating to
    acceptance or rejection of an
    application,
    eligibility/suitability of the
    candidates, mode of and
    criteria for selection etc.
    will be final and binding on
    the candidates. No inquiry or
    correspondence will be
    entertained in this regard.”
    2.2. In pursuance of advertisement for the posts
    of PTI, 20,836 applications were received
    by the Commission. The notification dated
    28.12.2006 was published by the Commission
    to the effect that the Commission has
    decided to hold the written examination on
    4
    21.01.2007. Notification further mentioned
    there shall be 100 objective type Multiple
    Choice Questions, 60 Questions relating to
    Academic Knowledge of the respective
    subject for which a candidate is appearing
    in the test and 40 Questions related to
    General Knowledge, General English and
    Hindi upto Matric Standard. Each question
    was to carry two marks. The candidates were
    required to secure minimum qualifying marks
    in written test i.e. 50% for General
    Category and 45% for SC/BC. Notification
    further mentioned that Viva-voice will be
    of 25 marks. The notification further
    provided that candidates equal to three
    times of the vacancies will be called for
    interview based on their performance in the
    written test. The written examination was
    held on 21.02.2007.
    2.3. A public notice was issued on 01.02.2007 by
    the Commission that due to several
    5
    complaints/reports with regard to
    malpractices and cheating committed in
    written examination held on 21.01.2007,
    Commission has decided to cancel the
    aforesaid examination.
    2.4. Another notice dated 11.06.2008 was issued
    by the Commission re-notifying the written
    examination for the PTI on 20.07.2008.
    However, before the written examination
    could take place on 20.07.2008, another
    notice dated 30.06.2008 was issued by the
    Commission cancelling the written
    examination to be held on 20.07.2008.
    Another notice dated 11.07.2008 was
    published by the Commission to shortlist
    the candidates for interview. The notice
    mentioned that keeping in view the large
    number of applications, Commission has
    decided to shortlist eight times candidates
    of the advertised post in the respective
    category for interview on the basis of
    6
    essential academic advertised
    qualification. Notice also mentioned the
    minimum weighted score of each category.
    2.5. On 18.07.2008, the interview schedule was
    published by the Commission which provided
    that Interview was notified from 02.09.2008
    to 17.10.2008. 15,582 candidates appeared
    in the interview. One member of the
    Commission and one expert member headed
    each Interview Committee from A to H.
    Although the interview was completed in the
    year 2008 itself, the Commission could
    declare the result of the selection after
    one and half years only on 10.04.2010 which
    was published on 11.04.2010. At the end of
    the result as published in the newspaper,
    criteria adopted for selection was also
    mentioned to the following effect: –
    “CRITERIA ADOPTED FOR
    SELECTION:
    The criteria adopted by the
    Commission for making selection
    is given below: –
    7
    1) Academic marks…………60 Marks
    2)Marks obtained in the Viva
    voice out of …………………………30
    Marks
    Total: 90- Marks”
  3. Challenging the Select list dated 10.04.2010,
    large number of writ petitions were filed in the
    Punjab and Haryana High Court including CWP No.15656
    of 2010, Sanjeev Kumar and others versus State of
    Haryana and others. The writ petitioners before
    filing writ petitions had obtained information under
    Right to Information Act details of which information
    were mentioned in the writ petition. Various grounds
    were taken in the writ petition to challenge the
    selection. The writ petitioners pleaded in the writ
    petition that some of the candidates have been
    awarded more than 25 marks in viva-voice. Further,
    some of the candidates have been selected and
    appointed who did not possess the requisite
    qualification of certificate in Physical Education
    conducted by Haryana Education Department or an
    equivalent qualification recognized by Haryana
    Education Department. The petitioners further pleaded
    8
    that once the criteria was laid down by the
    Commission, the same was required to be followed
    strictly while making the selection and it was not
    proper to change the criteria. The petitioners
    pleaded that criteria has been changed by the
    respondent authority to get the desired result and in
    order to bring the candidates within the zone of
    selection in order to grant them undue benefits for
    the reasons best known to the respondent authorities.
  4. The Petitioner No.1 of CWP No.15656 of 2010
    pleaded that out of 62 Candidates who have been
    appointed in district Yamuna Nagar, 61 are less
    meritorious as compared to petitioner No.1. The
    petitioner No.1 although secured 41.68 marks in
    academic qualifications but could get only 8 marks in
    the interview. Petitioner further pleaded that all
    other petitioners secured good marks in academic
    qualifications but they received less marks in vivavoice due to which they could not be included in the
    Select list.
    9
  5. On an application given under RTI asking for a
    copy of the criteria, it was only on 17.06.2010 the
    criteria was supplied. The writ petitioners further
    pleaded that authorities while making selection
    neither adopted any rationale criteria nor selected
    the candidates on the basis of merit. The criteria
    was changed from time to time in order to select some
    favourites. Entire selection appears to be a fraud
    played upon the general public. 25 marks were
    mentioned for viva-voice but when the result was
    finalized the candidates were awarded marks more than
    25 marks. Paragraph 51 of the W.P.No.15656 of 2010
    enumerated the main points involved in the writ
    petition.
    “51. That the main law points involved in
    the writ petition are: –
    i) Whether the respondent –
    authorities have adopted pick
    and choose policy while
    selecting the private
    respondents?
    ii) Whether the marks allocated for
    the interview as per the
    advertisement could be changed
    subsequently after the
    commencement of the selection
    procedure at the whims of the
    respondent authorities?
    10
    iii) Whether any rational criteria
    was adopted by the respondent –
    authorities while awarding the
    marks for the viva-voce?
    iv) Whether the marks for the vivavoice were required to be
    bifurcated under various heads?
    v) Whether the persons who did not
    possess even the requisite
    educational qualification could
    be selected for the post?
    vi) Whether the selection conducted
    by the respondent – authorities
    is fair transparent and
    sustainable in the eyes of law?
    vii) Whether while making the
    selection Articles 14 and 16 of
    the Constitution of India have
    been violated?
    viii)Whether the action of the
    respondent-authorities is
    arbitrary, discriminatory and
    unsustainable in the eyes of
    law?
    ix) Whether the petitioners should
    be allowed to suffer for no
    fault on their part especially
    when the petitioners possess
    better academic record as
    compared to the selected
    candidates?”
    11
  6. In the writ petition No.15656 of 2010, following
    prayers were made:-

    i. relevant records of the case be
    summoned;
    ii. to issue a writ in the nature of
    Certiorari quashing the selection
    list Annexure P-9 dated 10.04.2010
    and to issue a writ in the nature of
    Mandamus directing the respondent
    authorities to select and appoint
    the petitioners as PTI’s and it is
    further prayed that during the
    pendency of the writ petition the
    respondents may kindly be restrained
    from appointing the selected
    candidates to the posts of PTI’s.
    iii. To issue any other appropriate writ,
    order or direction as this Hon’ble
    Court may deem fir and proper in the
    facts and circumstances of the
    present case;
    iv. To dispense with from filing the
    certified copies of the Annexures;
    v. Prior notices to the respondents may
    kindly be dispensed with;
    vi. To allow the petitioners to file
    photostat copies of the Annexures;
    vii. Costs of the writ petition be
    awarded in favour of the petitioners
    and against the respondents,
    12
    Any other order which this Hon’ble
    Court may deem fir may kindly be
    passed.”
  7. The selected candidates were also subsequently
    impleaded as parties in most of the writ petitions
    and repeated efforts were made to serve them.
    Hundreds of selected candidates were duly served.
    Written statements were also filed by selected
    candidates in the writ petitions. The High Court
    noticed that several respondents have not been served
    due to various reasons. Rest of candidates were
    served through substituted service for which public
    notice was published in the daily “The Tribune” on
    21.03.2012.
  8. A counter affidavit was also filed by the
    Commission opposing the writ petition. Learned Single
    Judge had also called for the original record from
    the Commission which were produced by the Commission
    before the Court.
    13
  9. Learned Single Judge after hearing the counsel
    for the parties and after perusing the record allowed
    all the writ petitions by judgment and order dated
    11.09.2012. Operative portion of the judgment of the
    learned Single Judge is as follows: –
    “…These writ petitions are thus
    allowed. The purported selection made by
    the Haryana Staff Selection Commission in
    pursuance to the advertisement No.6/2006,
    result whereof was published on 11.04.2010
    relating to category No.23 for the posts
    of PTIs, is hereby quashed. A direction is
    issued to the Haryana Staff Selection
    Commission to hold a fresh selection, in
    accordance with law, within a period of
    five months from the date of receipt of
    certified copy of this order.
    Photocopies of the original noting
    files produced in Court as also the
    purported criteria laid down by the
    Commission dated 03.08.2008 have been got
    prepared, kept in a sealed cover and
    placed on the records of CWP No.15656 of
    2010 to be opened only on Court orders.
    Produced original records be handed over
    to Mr. Harish Rathee, learned Senior
    Deputy Advocate General, Haryana.
    (AUGUSTINE GEORGE MASH)
    JUDGE
    11.09.2012”
  10. LPA No.1594 of 2012 and several other LPAs were
    filed before the Division Bench challenging the
    14
    judgment dated 11.09.2012. Apart from LPAs filed by
    selected candidates, few of the LPAs were also filed
    by some of the writ petitioners they being partly
    dissatisfied by the order of the Single Judge as the
    issue of ineligibility and disqualification of
    selected candidates expressly raised by them have not
    been gone into by learned Single Judge.
  11. The State of Haryana as well as Haryana Staff
    Selection Commission had also filed LPA challenging
    the judgment of the learned Single Judge. All the
    LPAs were heard and decided by the Division Bench
    vide its judgment dated 30.09.2013. The Division
    Bench upheld the order of learned Single Judge.
    Operative portion of the judgment of the Division
    Bench dated 30.09.2013 is as follows: –
    “54) For the reasons afore-stated, we
    uphold the decision of the learned Single
    Judge and consequently: –
    i) LPA Nos. 1841 and 1903 of 2012
    filed by the Haryana Staff
    Selection Commission are
    dismissed with cost of
    Rs.50,000/- each to be
    deposited with the High Court
    15
    Legal Services Committee
    within a period of one month;
    ii) LPA No.1562, 1831 to 1839,
    1842 to 1855, 1879 to 1902,
    1904 to 1917, 1997, 2002, 2028
    of 2012; 248 & 262 of 2013
    jointly filed by the State of
    Haryana and the Haryana Staff
    Selection Commission are
    dismissed with cost of Rs.
    10,000/-in each case to be
    deposited with the High Court
    Legal Services Committee
    within one month;
    iii) LPA Nos. 1555,1557,1592,1594,
    1856 to 1860, 1870 to 1878,
    1918 to 1920, 1950 of 2012;
    529 of 2013 filed by the
    selected candidates are
    dismissed with cost of
    Rs.10,000/- each to be
    deposited in the High Court
    Lawyer Welfare Fund within one
    month;
    iv) LPA Nos. 1595, 1760,1967,2194
    of 2012; and 303 of 2013 filed
    by the writ petitioners are
    disposed of in the light of
    the observations made in para53 of this Court;
    55) Photostat copies of the four files
    containing original notings and decisions
    taken by the Commission or its Chairman
    from time to time, the decision dated
    03.08.2008 have been retained and shall be
    kept as a part of the judicial record. The
    original record be returned to the
    Commission under receipt.
    56) Ordered accordingly. Dasti.”
    16
  12. These appeals have been filed by the selected
    candidates whose selection had been set aside by
    learned Single Judge and affirmed by the Division
    Bench. The State of Haryana as well as Haryana Staff
    Selection Commission had also filed Special Leave to
    Appeal being SLP(Civil) No. 11143-11210 of 2014 which
    was disposed of by this Court by following order
    dated 30.07.2014: –
    “Delay condoned.
    The issue arising in this group of special
    leave petitions is pending before this
    Court in SLP(C) No.35373 of 2013 etc.
    filed at the instance of selected
    candidates. All the questions raised
    herein would be open to the petitioner
    State to be urged in SLP(C) No. 35373 of
  13. In that view of the matter, we do
    not consider it necessary to issue formal
    notice in these special leave petitions.
    Accordingly, they are not being
    entertained. The special leave petitions
    are disposed in terms of the above.”
  14. While entertaining the SLP No.35373 of 2013,
    Ramjit Singh Kardam and others versus Sanjeev Kumar
    and others, and other special leave petitions, this
    Court passed following order on 29.11.2013: –
    “Issue Notice.
    17
    Returnable in three weeks.
    Status Quo, as on today shall be
    maintained in the meantime.”
  15. These appeals were heard on various dates by this
    Court. On 22.01.2020, this Court passed following
    order: –
    “Hearing to continue tomorrow
    (23.01.2020).
    Learned counsel for the State may produce
    the original record of selection.”
  16. Further, when the matter was heard on
    23.01.2020, learned counsel for the State as well as
    Commission produced certain original records on which
    date following order was passed: –
    “Learned counsel for the State today
    placed before this Court an original
    tabulation register of the result sheet,
    selection list register, interview marks
    register of the member as well as of
    expert, which indicate that marking have
    been done separately. The letter dated
    03.08.2008, in original, has also been
    placed before the Court, which was also
    placed before the High Court.
    Heard in part.
    List for continuation of arguments on
    29.01.2020.
    18
    Learned counsel for the State shall
    produce rest of the original records on
    the next date of hearing i.e. 29.01.2020.”
  17. Matter was further heard by this Court on
    29.01.2020 when following order was passed:-
    “We have heard learned counsel for the
    parties.
    Learned counsel appearing for the
    Commission has placed before us further
    original records i.e. File No.1 containing
    correspondence and another original file.
    On the earlier occasion learned counsel
    for the Commission has produced the
    original records which we have noticed in
    our order dated 23.01.2020. The register
    containing marking by expert member of the
    Commission were produced from which it
    appears that the expert member has graded
    the candidates in A, B and C category
    whereas the member of the Commission has
    given marks out of 30. On our query as to
    whether there was any guidelines to
    reflect the evaluation by the Commission
    member or how both were to be correlated,
    learned counsel for the Commission could
    not give any reply.
    Learned counsel for the petitioners
    has further submitted that in above facts
    situation, Commission be directed to file
    an affidavit explaining the relevant
    procedure and the guidelines, if any, with
    regard to selection in question and other
    selection at the relevant time. With
    regard to letter dated 03.08.2008, which
    was produced in an envelope on the last
    occasion, learned counsel for the
    Commission submitted that the said letter
    as well as the proceeding sheets are not
    19
    on the original records which have been
    produced today.
    Learned counsel for the respondents,
    who were writ petitioners, submits that
    the State Government may also be directed
    to give details of the vacancies, existing
    as on date in the relevant PTI Cadre.
    We allow two weeks’ time to the
    learned counsel for the Commission to file
    an affidavit giving details as indicated
    above after serving the same on the
    learned counsel for the petitioners, who
    may also file response thereof within a
    week thereafter.
    List on 26.02.2020.”
  18. In pursuance of the order of this Court dated
    29.01.2020, an affidavit dated 11.02.2020 sworn by
    Isha Kamboz, Secretary, Haryana Staff Selection
    Commission, has been filed.
  19. For the appellants, we have heard Shri Kapil
    Sibal, learned senior counsel, Shri V.Giri, learned
    senior counsel, Shri Ravindra Srivastava, learned
    senior counsel, Shri Navneeti Prasad Singh, learned
    senior counsel, Shri Rameswar Malik, learned senior
    counsel and other learned counsel. Shri Manoj Swarup
    has appeared for the respondent writ petitioners. We
    20
    have also heard other counsel appearing for respondent
    writ petitioners. Shri A.K. Sinha and other counsels
    for intervenors. We have heard Shri Anil Grover,
    Additional Advocate General for State of Haryana as
    well as Haryana State Selection Commission.
  20. Learned counsel for the appellants challenging
    the judgment and order of both learned Single Judge
    and Division Bench of the High Court submits that
    there were no sufficient grounds and materials before
    the High Court to set aside the entire selection,
    which was held for 1983 posts of PTI. It is submitted
    that the respondent writ petitioners have participated
    in selection without any demur or protest, hence, they
    are not entitled to challenge the selection after
    having been declared unsuccessful. On the principle of
    estoppel, they are precluded from challenging the
    selection.
  21. It is submitted that criteria for selection was
    uniformly applied to all the candidates and respondent
    writ petitioners having not challenged the criteria of
    21
    selection cannot be allowed to challenge the criteria
    after declaration of the select list.
  22. It is submitted that there are no allegations of
    any mala fide against the Chairman or any member of
    the Commission or any candidate. The High Court
    committed error in accepting the grounds of challenge
    by the writ petitioners that those candidates who
    secured good marks in Academics were deliberately
    given less marks in the viva-voice so that they may go
    out of select list. Insofar as not holding of the
    written examination it is submitted that there were
    grounds for scrapping the written examination which
    was held on 01.02.2007.
  23. The Commission decided not to hold the written
    examination and proceeded to hold the selection on the
    basis of criteria which was applied in the earlier
    selection i.e. 2003 selection i.e. 60 marks for
    Academics and qualification and 30 marks on the Vivavoice to which no exception can be taken by respondent
    writ petitioners. The criteria which was applied in
    22
    the Selection was signed by all members of the
    Commission on 03.08.2008 to which no exception can be
    taken by the respondent writ petitioners.
  24. The Courts cannot start looking on the marks
    allocated in Viva-voice nor the same is in the domain
    of the Court. The appellants are now over age and
    having worked for 10 about years, at this stage, they
    cannot be displaced. Increase of marks from 25 to 30
    for viva-voice was not violative of any norms.
    Jurisdiction under Article 226 is not an investigative
    jurisdiction but it is adjudicatory jurisdiction.
  25. Shri Manoj Swarup, learned senior counsel
    appearing for the respondent writ petitioners submits
    that the writ petitioners were unaware of the criteria
    which was to be applied by the Commission in the
    Selection and they came to know about the criteria of
    60 marks for Academics Qualifications and 30 marks for
    Interview only by final result dated 10.04.2010 when
    it was mentioned in the final result.
    23
  26. The Commission could not have held any selection
    without declaring the criteria beforehand. The written
    examination which was re-notified on 11.06.2008 was
    not proceeded with without any valid reason. Written
    examination is sure mode of finding out merit in the
    candidates and looking to number of the candidates
    which was more than 20,000, the Commission has rightly
    taken a decision to hold a written test of 200 marks
    and interview of 25 marks which ought to have adhered
    by the Commission.
  27. The Commission never informed the candidates that
    no written examination shall be held. The High Court
    had summoned the original records and found out from
    the original records that those candidates who were
    meritorious as per the qualification and academic
    marks were deliberately given marks ranging from 7 to
    13 so that they may go out of the Select list. Those
    candidates who had poor academic records were given
    marks in interview ranging from 18 to 28 so that they
    may get selected.
    24
  28. The Commission after taking a decision on
    30.06.2008 not to hold the written examination,
    decided to shortlist the candidates for interview on
    the basis of marks obtained by them in the academics
    and educational qualification and called the
    candidates 8 times of the number of vacancies. Minimum
    marks were also prescribed for candidates to be called
    in the interview. The Commission subsequently did not
    even adhere to their notification dated 11.07.2008 and
    decided to call all eligible candidates for interview
    with intend to help those who could not have come in
    the criteria of 8 times of the number of vacancies on
    the basis of Academic record.
  29. The Commission from the very beginning has
    proceeded in a manner which indicate that the merit
    criteria was deliberately given up to accommodate
    favourites. The entire selection has rightly been set
    aside by learned Single Judge and affirmed by the
    Division Bench. The respondent writ petitioners were
    meritorious and deserved selection in event the
    Commission could have proceeded to examine the
    25
    candidates on merit and as per the criteria of holding
    written examination or screen the candidates 8 times
    of the number of vacancies. The petitioner after
    coming to know about the criteria from the result
    dated 10.04.2010 immediately filed writ petition in
    May, 2010 challenging the criteria. The undue delay in
    declaring the result i.e. one and a half year creates
    doubt about the fairness of the Commission in
    declaring the result.
  30. Shri Swarup submits that entire selection having
    scrapped by the High Court, this Court may direct for
    holding of fresh selection enabling the petitioners to
    participate and get selected on their merit. It is
    submitted that continuance of appellants on the basis
    of interim order should not be given any credence. The
    Commission in conducting the selection on the post of
    PTI has not acted as per norms and requirement of law.
    Decision to scrap the written test and further not to
    hold the written test and all the subsequent steps
    having taking by Chairman, who alone was not competent
    to take decision, were without authority of law. It is
    26
    submitted that decision dated 03.08.2008 on which the
    reliance has been placed by the Commission was never
    taken on 03.08.2008 and when the learned Single Judge
    asked for the criteria, the letter dated 03.08.2008
    was prepared and got signed by all the members and
    submitted in the High Court. The High Court has
    rightly refused to believe that criteria was
    formulated on 03.08.2008 by the Commission.
  31. Learned counsel for the Commission as well as
    State of Haryana submits that criteria which was
    applied of 60 marks and 30 marks was the criteria
    which was earlier applied also in 2003. It was
    submitted that insofar allocation of marks by member
    and expert there are no guidelines or materials to
    indicate how the marks were awarded in the viva-voice.
    He further submits that in view of the Haryana School
    Education (Group-C) State Cadre Service Rules, 2012,
    the post of PTI is converted as TGT and PTI have
    become a dying cadre. He submits that at present there
    are no vacancies on the post of PTI which has been
    declared as dying cadre. Fresh selection can only be
    27
    held for the post of TGT (Physical Education) for
    which qualifications have also been changed.
  32. Shri Kapil Sibal, learned senior counsel
    appearing for appellant in his rejoinder submits that
    even though 1496 candidates got high marks in the
    academics, they are only 10% of the total number of
    candidates and only few hundreds got 20-27 marks in
    the viva-voce. From where High Court got the material
    to hold that 90 percent candidates who performed
    poorly in the Academics got higher marks in the vivavoce? The Commission has said that marks of the
    Academics and qualifications were not before the
    Interview Board. All 8 members of the Commission
    cannot be said to have conspired to follow a pattern
    of work.
  33. From the pleadings on the records and submissions
    made by the learned counsel for the parties, following
    points arise for consideration: –
    i) Whether the respondent writ petitioners who
    had participated in the selection were
    28
    estopped from challenging the selection in
    the facts of the present case?
    ii) Whether the respondent writ petitioners could
    have challenged the criteria of selection
    applied by Commission for selection after
    they had participated in the selection?
    iii) Whether the decision dated 30.06.2008 to
    cancel the written examination and the
    decision dated 11.07.2008 to call the
    candidates for interview 8 times number of
    vacancies on minimum percentage of marks as
    fixed therein and the decision dated
    31.07.2008 to call all the eligible
    candidates for interview were arbitrary
    decision to change selection criteria
    published on 28.12.2006, which have effect of
    downgrading the merit in the Selection?
    iv) Whether it was obligatory for the Commission
    as a body to take all decisions pertaining to
    Selection on the post of PTI including the
    29
    decision of not holding written examination,
    decision to screen on the basis 8 times of
    vacancies and decision to call all eligible
    candidates and whether aforesaid decisions
    were taken by the Chairman alone?
    v) Whether on 03.08.2008, a decision was taken
    by the commission fixing the criteria for the
    selection on the post of PTI which was signed
    by all the members on 03.08.2008 as claimed
    by the Commission?
    vi) Whether without there being any specific
    allegations of mala fide against the Chairman
    and members of the Commission and without
    they having been impleaded by name as party
    respondents, the writ petitioners could have
    challenged the allocation of marks in vivavoce and High Court was right in accepting
    the claim that candidates who got highest
    marks for academic qualifications ranging
    between 40 to 48.74 marks have been awarded
    30
    just 7 to 9 marks in the viva-voce and as
    against it there are hundreds of selected
    candidates who have been awarded 20 to 27 out
    of 30 marks in the viva-voce to ensure that
    they outclass the academically bright
    candidates?
    vii) Whether no fresh selection can be held as
    directed by learned Single Judge since as per
    2012 Rules, the post of PTI has been declared
    as a dying cadre and the post has merged into
    the post of TGT Physical Education?
  34. Before we proceed to consider the submissions of
    the learned counsel for the parties and the points
    formulated as above, we need to notice the
    constitution of Haryana Staff Selection Commission,
    relevant notifications and orders governing its
    powers and procedures. By notification dated
    28.01.1970, the Governor of Haryana, in exercise of
    power conferred by Article 309 of the Constitution of
    India constituted the Subordinate Services Selection
    31
    Board. All appointments to non-gazetted class-III
    posts under the Haryana Government except
    appointments of officers and employees of Punjab &
    Haryana High Court provided for in accordance with
    Article 229 of the Constitution of India were
    mandated to be made on the advice of the Board. Vide
    notification dated 09.12.1997, the words “Subordinate
    Services Selection Board” were substituted by
    “Haryana Staff Selection Commission”. Vide
    notification dated 28.07.1998, sub-para (d) of para 6
    was substituted, according to which the Commission
    was empowered to devise the mode of selection and fix
    the criteria for selection of post for which
    requisition is sent to it by a Department or an
    office, as it may deem appropriate and the criteria
    for selection of posts fixed earlier by the
    Board/Commission shall be deemed to have been fixed
    under this sub-paragraph. Vide notification dated
    21.06.2007, paragraph 1 was substituted with effect
    from 20.04.2007, according to which the Commission
    shall consist of nine members including the Chairman,
    out of whom a minimum of two members would be such as
    32
    have held office for at least ten years either under
    the Government of India or under the Government of
    the State. In this notification sub-para 4 reads as
    follows:-
    “(iv) in paragraph 6, for clause (d), the
    following clause shall be substituted and
    shall be deemed to have been substituted
    with effect from 10th January, 2006,
    namely:-
    “(d) methods of recruitment and
    the principles to be followed in
    making appointments to the Group
    B, Group C and Group D posts
    under the State Government. The
    Commission shall devise the mode
    of selection and fix the criteria
    for selection of posts for which
    requisition is sent to it by a
    department of an office, as it
    may deem appropriate and the
    criteria for the selection of
    posts fixed earlier by the
    Board/Commission shall be deemed
    to have been fixed under the
    clause.”
  35. As per notifications mentioned above, the
    Commission was empowered to devise the mode of
    selection and fix the criteria for selection of posts
    for which request was sent to it by department or an
    office. Sub-paragraph 4 of the notification dated
    20.04.2007 as extracted above, which was substituted
    33
    w.e.f. 10.01.2006 empowered the Commission providing
    that Commission shall devise the mode of selection
    and fix the criteria for selection of posts and for
    which request is sent by a department or an office.
    The selection on various posts was to be conducted as
    per the criteria fixed by the Commission. There are
    no separate statutory rules providing for criteria
    for recruitment for different posts including the
    post of PTI with which we are concerned in these
    appeals.
  36. We having noticed that the power is vested in the
    Commission to fix the criteria for selection, we now
    proceed to consider points for determination.
    Point Nos.1 and 2
  37. Learned counsel for the appellant at very outset
    contended that the writ petitions filed by the
    respondent challenging the select list dated
    10.04.2001 ought not to have been entertained by the
    High Court since the respondent having participated
    in the selection without any demur or protest, they
    34
    are estopped from challenging the selection. The
    submission is refuted by the respondent contending
    that the above principle of estopple is not
    applicable in the facts of the present case. The
    petitioner being not even aware of the criteria,
    which was to be applied for selection, which they
    came to know only after select list was published,
    there was no occasion to make any challenge by the
    respondents before the above date.
  38. The preposition that a candidate, who
    participates in a selection without a demur taking a
    calculated chance to get selected cannot turn around
    and challenge the criteria of selection and the
    constitution of the selection committee is well
    settled. The appellants have placed reliance on
    judgment of this Court in Madan Lal and Others Vs.
    State of J&K and Others, (1995) 3 SCC 486; K.A.
    Nagamani Vs. Indian Airlines and Others, (2009) 5 SCC
    515; Manish Kumar Shahi Vs. State of Bihar and
    Others, (2010) 12 SCC 576; Madras Institute of
    Development Studies and Another Vs. K.
    Sivasubramaniyan and Others, (2016) 1 SCC 454 and
    35
    Ashok Kumar and Another Vs. State of Bihar and
    Others, (2017) 4 SCC 357.
  39. In Madan Lal and Others(supra), this Court laid
    down following in paragraph 9:-
    “9. ……………………….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, 1986 Supp SCC 285, 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.”
  40. The above preposition has been reiterated in
    other judgments of this Court noted above. In the
    present case, whether the respondents-writ
    petitioners are estopped from challenging the
    selection? While noticing the facts of the case, we
    have noted above that both appellants and the
    respondents had submitted applications in pursuance
    36
    of advertisement dated 28.07.2006 No.6/2006. In
    advertisement, it was provided that the Commission
    may shortlist the candidates for interview by holding
    a written examination or on the basis of a rational
    criteria to be adopted by the Commission. The
    Commission on 28.12.2006 published the criteria for
    calling the candidates for interview. Notice dated
    28.12.2006 provided that written examination shall be
    held for post of PTI on 21.01.2007, on 100 objective
    type multiple choice questions, each question
    carrying two marks. The notification also prescribed
    the minimum qualifying marks- 50% for General
    category, SC BC and ESM 45% and 25% marks was
    assigned to the viva voce. The above criteria was
    implemented and written examination was conducted on
    21.01.2007, which examination was cancelled citing
    complaints regarding malpractices in the written
    examination. Further notice dated 11.06.2008 was
    published fixing 20.07.2008 for written examination
    as per criteria earlier notified. Before the above
    examination could take place, by public notice dated
    30.06.2008, it was cancelled. Another public notice
    37
    dated 11.07.2008 was published where Commission
    decided to shortlist eight times the candidates of
    the advertised post with minimum weightage secured in
    each category. The said shortlisting was also given
    up by notice dated 31.07.2009 when it was decided to
    call all eligible candidates for interview.
    Commission did not publish any criteria or marks on
    the basis of which interview was to be held. The
    criteria, which was published by the Commission on
    28.12.2006, 11.06.2008 and 11.07.2008 were given up
    step by step and no criteria was published for
    interview, which was scheduled to take place in from
    2
    nd September to 17th October, 2008. When Commission
    had not published any criteria on the basis of which
    candidates were going to be subjected for selection
    process and the candidates participated in the
    selection without knowing the criteria of selection,
    they cannot be shut out from challenging the process
    of selection when ultimately they came to know that
    Commission step by step has diluted the merit in
    selection. When candidate is not aware of the
    criteria of selection under which he was subjected in
    38
    the process and the said criteria for the first time
    is published along with final result dated
    10.04.2010, he cannot be estopped from challenging
    the criteria of selection and the entire process of
    selection. Further when the written examination as
    notified earlier was scrapped and every eligible
    candidate was called for interview giving a go bye to
    a fair and reasonable process for shortlisting the
    candidates for interview, that too only by Chairman
    of the Commission whereas decision regarding criteria
    of selection has to be taken by Commission, the
    candidates have every right to challenge the entire
    selection process so conducted. This Court in Raj
    Kumar and Others Vs. Shakti Raj and Others, (1997) 9
    SCC 527 held that when glaring illegalities have been
    committed in the procedure to get the candidates for
    examination, the principle of estoppel by conduct or
    acquiescence has no application. Referring to
    judgment of this Court’s judgment in Madan Lal
    (supra), this Court laid down following in paragraph
    16:-
    39
    “16. …………………………………………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, (1995)
    3 SCC 486 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 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.”
  41. One more judgment of this Court which supports
    the view taken by the High Court is Bishnu Biswas and
    others Union of India and others, (2014) 5 SCC 774.
    An advertisement was published calling applications
    for appointment to the post of Group D staff. The
    Recruitment Rules only provided for a written
    examination having 50 maximum marks. After holding
    40
    written examination notice was issued calling the
    successful candidates for interview. Although such
    interview was not part of the recruitment process, a
    select list was published which was challenged in the
    Tribunal. The Tribunal returned a finding that the
    manner in which marks have been awarded in the
    interview to the candidates indicated lack of
    transparency. The High Court upheld the reasoning of
    the Tribunal but modified the order to the extent of
    continuing the recruitment process from the point it
    stood vitiated. This Court laid down following in
    paragraphs 19 and 20:
    “19. In the instant case, the rules of the
    game had been changed after conducting the
    written test and admittedly not at the
    stage of initiation of the selection
    process. The marks allocated for the oral
    interview had been the same as for written
    test i.e. 50% for each. The manner in which
    marks have been awarded in the interview to
    the candidates indicated lack of
    transparency. The candidate who secured 47
    marks out of 50 in the written test had
    been given only 20 marks in the interview
    while a large number of candidates got
    equal marks in the interview as in the
    written examination. Candidate who secured
    34 marks in the written examination was
    given 45 marks in the interview. Similarly,
    another candidate who secured 36 marks in
    the written examination was awarded 45
    41
    marks in the interview. The fact that today
    the so-called selected candidates are not
    in employment, is also a relevant factor to
    decide the case finally. If the whole
    selection is scrapped most of the
    candidates would be ineligible at least in
    respect of age as the advertisement was
    issued more than six years ago.
  42. Thus, in the facts of this case the
    direction of the High Court to continue
    with the selection process from the point
    it stood vitiated does not require
    interference. In view of the above, the
    appeals are devoid of merit and are
    accordingly dismissed. No costs.”
  43. The Division Bench of the High Court is right in
    its conclusion that the selection criteria, which saw
    the light of the day along with declaration of the
    selection result could be assailed by the
    unsuccessful candidates only after it was published.
    Similarly, selection process which was notified was
    never followed and the selection criteria which was
    followed was never notified till the declaration of
    final result, hence, the writ petitioners cannot be
    estopped from challenging the selection. We, thus,
    hold that the writ petitions filed by the petitioners
    could not have been thrown on the ground of estoppel
    and the writ petitioners could very well challenge
    42
    the criteria of selection applied by the Commission,
    which was declared by the Commission only at the time
    of declaration of the final result. We, thus, answer
    point Nos. 1 and 2 as follows:-
    (i) The writ petitioners, who had participated
    in the selection are not estopped from
    challenging the selection in the facts of
    the present case.
    (ii) The writ petitioners could have very well
    challenged the criteria of selection, which
    was declared by the Commission only in the
    final result declared on 10.04.2010.
    POINT NOS.3, 4 AND 5
  44. The selection and appointment on post borne on
    the State establishment provides an opportunity to
    citizens of public employment. The personnel who man
    the civil posts in State apart from carrying out
    objectives and policies of State also serve as source
    of sustenance for their families. The selection and
    appointment on post in the State have to conform to
    the fundamental rights guaranteed to the citizens
    under Articles 14 and 16. The objective of a State in
    selecting persons into public service has always been
    43
    to select the best and most suitable person. Justice
    O. Chinnappa Reddy, J. speaking for this Court in
    Lila Dhar vs. State of Rajasthan and others, (1981) 4
    SCC 159, had laid down that open competition has
    been accepted universally as the gateway to public
    services. In paragraphs 4 and 5 following has been
    laid down:
    “4. The object of any process of selection
    for entry into a public service is to
    secure the best and the most suitable
    person for the job, avoiding patronage and
    favouritism. Selection based on merit,
    tested impartially and objectively, is the
    essential foundation of any useful and
    efficient public service. So, open
    competitive examination has come to be
    accepted almost universally as the gateway
    to public services.
    “The ideal in recruitment is to do
    away with unfairness.
    Competitive examinations were
    the answer to the twin problems
    represented by democracy and the
    requirements of good
    administration. They were the means
    by which equality of opportunity
    was to be united with
    efficiency…. By this means
    favouritism was to be excluded and
    the goal of securing the best man
    for every job was to be achieved.
    Open competitive examinations
    are a peculiarly democratic
    44
    institution. Any qualified person
    may come forward. His relative
    competence for appointment is
    determined by a neutral,
    disinterested body on the basis of
    objective evidence supplied by the
    candidate himself. No one has
    ‘pull’; everyone stands on his own
    feet. The system is not only highly
    democratic, it is fair and
    equitable to every competitor. The
    same rules govern, the same
    procedures apply, the same
    yardstick is used to test
    competence.”
  45. How should the competitive examination
    be devised? The Kothari Committee on
    Recruitment Policy and Selection Methods
    in their report said:
    “A system of recruitment almost
    totally dependent on assessment of
    a person’s academic knowledge and
    skills, as distinct from ability to
    deal with pressing problems of
    economic and social development,
    with people, and with novel
    situations cannot serve the needs
    of today, much less of tomorrow….
    We venture to suggest that our
    recruitment procedures should be
    such that we can select candidates
    who can not only assimilate
    knowledge and sift material to
    understand the ramifications of a
    situation or a problem but have the
    potential to develop an original or
    innovative approach to the solution
    of problems.”
    It is now well-recognised that while a
    written examination assesses a candidate’s
    45
    knowledge and intellectual ability, an
    interview-test is valuable to assess a
    candidate’s overall intellectual and
    personal qualities. While a written
    examination has certain distinct
    advantages over the interview-test there
    are yet no written tests which can
    evaluate a candidate’s initiative,
    alertness, resourcefulness,
    dependableness, cooperativeness, capacity
    for clear and logical presentation,
    effectiveness in discussion, effectiveness
    in meeting and dealing with others,
    adaptability, judgment, ability to make
    decision, ability to lead, intellectual
    and moral integrity. Some of these
    qualities may be evaluated, perhaps with
    some degree of error, by an interviewtest, much depending on the constitution
    of the Interview Board.”
  46. In the above judgment this Court has elaborately
    considered the merit of selection of written
    examination as well as usefulness of interview test.
    The above observations by this Court were quoted with
    approval by the Constitution Bench of this Court in
    Ashok Kumar Yadav and others vs. State of Haryana and
    others, 1985(4) SCC 417. In paragraph 23 following
    was laid down:
    “23. This Court speaking through Chinnappa
    Reddy, J. pointed out in Lila Dhar v.
    State of Rajasthan that the object of any
    process of selection for entry into public
    service is to secure the best and the most
    46
    suitable person for the job, avoiding
    patronage and favouritism. Selection based
    on merit, tested impartially and
    objectively, is the essential foundation
    of any useful and efficient public
    service. So open competitive examination
    has come to be accepted almost universally
    as the gateway to public services. But the
    question is how should the competitive
    examination be devised? The competitive
    examination may be based exclusively on
    written examination or it may be based
    exclusively on oral interview or it may be
    a mixture of both. It is entirely for the
    Government to decide what kind of
    competitive examination would be
    appropriate in a given case………………”
  47. After the advertisement of the vacancies of PTI,
    the Commission issued a public notice on 28.12.2006
    deciding to hold a written examination of 200 marks
    and viva voce test of 25 marks to select the best
    suitable candidates for 1983 posts of PTI. The public
    notice further contemplated minimum qualifying marks
    50% for general category and 45% for SC and BC and
    40% for ESM. The above criteria evolved by the
    Commission for selection on the posts was implemented
    by holding the written examination on 21.01.2007
    which examination was cancelled after receiving some
    complaints and reports regarding malpractices in
    47
    examination. Even though examination was cancelled
    but the Commission continued with the same criteria
    for completing the selection which was so notified on
    11.06.2008 again in which examination on the same
    pattern was to take place on 20.07.2008. On
    30.06.2008 a type note by the Superintendent
    (Recruitment-I) was prepared mentioning that the
    Chairman had ordered that written test for the posts
    of DPE, Art and Craft Teacher and PTI, Education
    Department, Haryana, scheduled to take place, may be
    “cancelled on administrative reasons”. The note dated
    30.06.2008 was approved by the Chairman and he also
    approved the notice to be published for cancellation
    of the proposed written examination, neither the note
    nor the order of Chairman approving the note give any
    indication of “administrative reasons” for
    cancellation of the examination. Another important
    change which was effected in the criteria for
    selection was the notification with the approval of a
    note dated 10.07.2008 which mentioned that the worthy
    Chairman had issued oral direction that in respect of
    advertisement No.6 of 2006 Category No.23, candidates
    48
    are required to be short-listed 8 times of the
    vacancy and called for interview. Short-listing was
    to be done on the percentage of the marks of the
    candidates with minimum percentage mentioned therein.
    The Chairman on 11.07.2008 approved the notice to be
    published in the Newspapers with detail regarding
    short-listing of the candidate’s category wise with
    minimum percentage. The above criteria was also given
    up when another note dated 31.07.2008 was approved by
    the Chairman where the Chairman decided that all the
    eligible candidates be called for interview changing
    the earlier criteria. The interview was fixed between
    02.09.2008 and 17.10.2008 and the candidates were
    interviewed by eight Committees.
  48. The above sequence of events indicates that in
    accordance with the “special instruction” extracted
    above the Commission decided the criteria for calling
    the candidates for the selection as holding of
    written examination of 200 marks and interview for 25
    marks which was the perfect criteria looking to the
    number of the candidates i.e. 20836 who had applied
    49
    in pursuance of the advertisement for the post of
    PTI. The criteria was implemented by holding a
    written test on 21.07.2007 which was cancelled due to
    some complaints. The written test was again notified
    for 20.07.2008 which was withdrawn by notice
    published on 30.06.2008, the earlier criterion was
    given a go bye by another notification dated
    11.07.2008. The above indicates that the standard on
    which candidates are to be screened for selection was
    downgraded by Chairman of his own. When the number of
    candidates who applied against certain posts are
    enormously large, short-listing has always been
    treated as an accepted mode to correctly value the
    work and merit of the candidate. The Division Bench
    of the High court on the alteration of the mode of
    selection as noticed above has made following
    observation in paragraph 37 of the judgment:
    “(37) Thus, even accepting the
    appellants’ plea that ‘selection criteria’
    or ‘mode of selection’ can be altered
    midstream to short-list the candidates
    with higher merit, here is a case where
    the alterations have been designed with
    the sole object of downgrading and not
    upgrading the standards of selection to
    public employment.
    50
    Was the Chairman competent to take
    policy decisions like ‘selection criteria’
    or ‘mode of selection’?
  49. As per the notification extracted above it is the
    Commission, who “shall devise the mode of selection
    and fix the criteria for selection.” The said power
    has to be exercised in a reasonable and fair manner
    to advance the purpose and object of selection. Even
    if it is assumed for the sake of the argument that
    the Commission can change the criteria of selection
    from time to time, the said power has to be exercised
    not in an arbitrary manner.
  50. We may in this context refer to three-Judge Bench
    judgment of this Court in Tamil Nadu Computer Science
    BED Graduate Teachers Welfare Society(1) vs. Higher
    Secondary School Computer Teachers Association and
    others, 2009(14) SCC 517. In the above case Computer
    instructors were appointed on contract basis to
    various Schools. The Government decided to hold a
    special test by the Teacher Recruitment Board for
    selection of computer instructors. On 10.10.2008 the
    51
    State Government took decision that minimum
    qualification marks would be 50%. Special Recruitment
    Test was announced as 12.10.2008. On the night of
    12.10.2008 a list of candidates for appointment to
    the post of computer instructors based on the special
    recruitment test was put on the Internet. While
    publishing the said marks of the candidates, it was
    made clear that all candidates who have secured 35%
    marks in the test would be called for certificate
    verification. The State Government reduced the
    minimum qualifying marks to 35%. This Court did not
    approve the reduction of qualifying marks from 50% to
    35%. Following was laid down in paragraph 33:
    “33. We, however, cannot hold that the
    subsequent decision of the Government
    thereby changing qualifying norms by
    reducing the minimum qualifying marks from
    50% to 35% after the holding of the
    examination and at the time when the
    result of the examination was to be
    announced and thereby changing the said
    criteria at the verge of and towards the
    end of the game as justified, for we find
    the same as arbitrary and unjustified.
    This Court in Hemani Malhotra v. High
    Court of Delhi,(2008) 7 SCC 11, has held
    that in recruitment process changing rules
    of the game during selection process or
    when it is over are not permissible.
    52
  51. Learned counsel for the appellant has submitted
    that judgments of this Court laying down the criteria
    for selection cannot be changed during the course of
    selection has been referred to a larger Bench by a
    judgment of this Court in Tej Prakash Pathak and
    others vs. Rajasthan High Court and others, 2013(4)
    SCC 540, hence the judgment of this Court laying down
    the criteria cannot be changed during the course of
    the selection is yet to be tested. For the purposes
    of the present case we proceed on the assumption that
    even if the criteria can be changed by selecting body
    from time to time, the said change cannot be affected
    arbitrarily. The present is a case where change in
    criteria has been affected and altered arbitrarily
    with the object of down-grading and not up-grading
    the standards of selection. The High Court did not
    commit any error in not upholding the change of
    criteria effected after start of selection process
    with which finding we fully concur.
  52. The notifications issued under proviso to Article
    309 of the Constitution of India specifically
    53
    provides that the Commission shall devise the mode of
    selection and fix the criteria for selection of
    posts. The power to devise the mode of selection and
    fix the criteria was, thus, entrusted to the
    Commission. Commission is a multi-member body, which
    acts collectively. The Commission in the counter
    affidavits filed before High Court or this Court has
    not brought any rules or resolution of the Commission
    by which power of the Commission to devise the mode
    of selection and fix the criteria have been delegated
    to any other member including the Chairman. In
    Principles of Administrative Law, M.P. Jain & S.N.
    Jain, 6th Edition, writes in Chapter XXII states:-
    “When power is conferred on a multi-member
    body, the power ought to be exercised by
    the concerned body; the power cannot be
    exercised either by the chairman alone or
    by one of its members. This can be done
    only if the body concerned delegates power
    to the chairman or a single member to
    discharge certain functions on its
    behalf.”
  53. When there are no statutory rules regarding
    allocation of business of the Commission or
    delegating its business to members or Committee, the
    54
    Commission could very well by its resolution devise
    its own mode of exercising such power or function,
    which preposition has been laid down by this Court by
    a Constitution Bench in Naraindas Indurkhya Vs. The
    State of Madhya Pradesh and Others, (1974) 4 SCC 788
    wherein in paragraph 17 following was stated:-
  54. ……………………… Now we do not dispute the
    general proposition that when a power or
    function is given by the statute to a
    corporate body and no provision is made in
    the statute as to how such power or
    function shall be exercised, the corporate
    body can by a resolution passed at the
    general meeting devise its own mode of
    exercising such power or function, such as
    authorising one or more of the members to
    exercise it on behalf of the Board…………………”
  55. The Division Bench of the High Court after
    pursuing the original records, which was summoned by
    it from the Commission has returned a finding that
    the decision of the Commission dated 30.06.2008,
    11.07.2008 as well as 31.07.2008 have all been taken
    by the Chairman alone, which was proved from original
    records containing the relevant notes and approval by
    the Chairman. The alteration of criteria, thus, was
    sole handi-work of the Chairman, which decision was
    55
    not the decision of the Commission. It is not even
    claimed in the affidavit filed before the High Court
    or before this Court that said decisions were
    decisions taken by the Commission. The conclusion
    is, thus, inescapable that criteria for conducting
    selection for the post of PTI as was published on
    28.12.2006 was altered by the Chairman step by step
    completely giving a go bye to the method of merit
    selection. The statutory notifications when entrust
    the Commission to devise the mode of selection and
    fix the criteria and the Commission being multimember body, Chairman alone was not competent to
    alter the mode of selection and the criteria, which
    was fixed and published for conducting the selection
    for the post of PTI.
  56. Now, we come to the decision dated 03.08.2008,
    which was a decision fixing the criteria for
    selection signed by all the members of the
    Commission, the High Court after minutely looking
    into the original records has held that in the
    original records, which was produced before the High
    Court by the Commission, there is no mention of the
    56
    criteria for making selection dated 03.08.2008 nor
    the said one page decision was part of the original
    records. The said one-page decision was separately
    produced before the High Court and before us.
    Learned counsel for the Commission have placed that
    one-page decision in an envelope before us also which
    we have also perused. The Division Bench of the High
    Court in paragraph 42 has dealt with the decision
    dated 03.08.2008 and has affirmed the findings of the
    learned Single Judge that the said decision dated
    03.08.2008 was prepared only when learned Single
    Judge directed the Commission to produce the criteria
    of selection. Division Bench of the High Court has
    given weighty reasons for not accepting the claim set
    up by the Commission that criteria was fixed on
    03.08.2008 as claimed. The observations of the High
    Court in paragraphs 41 and 42 are to the following
    effect:-
    “(41) It is unfortunate that instead of
    reversing his unlawful decisions, taken by
    side-tracking eight other Members (as it
    was a nine-Member body since 21.06.2007),
    the Chairman involved those other Members
    in a mock-drill and flashed a surprise on
    the learned Single Judge by producing the
    57
    magical ‘single loose sheet’ of their
    purported decision dated 03.08.2008 laying
    down the ‘criteria for selection’.
    (42) We have also perused the decision
    dated 03.08.2008 produced in a sealed
    envelope. We firmly affirm the findings
    returned by the learned Single Judge to
    discard the same. We say so for the
    reasons that (i) various administrative
    decisions whether taken by the Commission
    as a multi-Member body (only one such
    decision found in the Files) or by the
    Chairman contained in the Files produced
    before us, are preceded by an ‘Office
    Note’ or ‘proposal’ and are invariably
    forwarded by the Secretary of the
    Commission; (ii) the original record of
    decisions taken by the Chairman in the
    last week of September, 2008 or in first
    week of October, 2008 do not even whisper
    about any meeting of the Commission held
    on 03.08.2008 or the decision taken
    therein; and (iii) the unusual manner in
    which the ‘loose sheet’ has been prepared
    casts a serious doubt on its genuineness.
    The so-called decision dated 03.08.2008
    was thus apparently contrived to defeat
    the cause of the writ-petitioners and to
    mislead the learned Single Judge, who has
    rightly held that it was only when he
    directed to produce the criteria of
    selection that this ‘loose sheet’ “was
    prepared and produced in Court”.”
  57. We fully concur with the above findings of the
    High Court with regard to decision dated 03.08.2008.
    It is, thus, proved that decision dated 03.08.2008
    was prepared by the Commission subsequent to
    58
    declaration of the result and only when the learned
    Single Judge directed the Commission to produce the
    criteria under which the selection for the post of
    PTI was undertaken.
  58. As noted above the decision of Chairman of the
    Commission dated 30.06.2008 not to hold the written
    examination was claimed to have been taken due to
    “administrative reasons”, but what were
    “administrative reasons” have never been disclosed or
    brought on record by the Commission. The decision to
    change the selection process as notified on
    28.06.2006 was a major decision not only affecting
    the applicants who had to participate in the
    selection on the basis of criteria as notified on
    28.12.2006 but had adverse effect on merit selection
    as devised for 1983 posts of PTI.
  59. As per advertisement dated 20.07.2006, the
    Commission had published the criteria for selection
    on 28.12.2006 which was implemented also, hence,
    there was no occasion to give up the merit selection
    in midway. Further, when no reasons are forthcoming
    to support the so called ‘administrative reasons’ in
    59
    the decision dated 30.06.2008 which was so stated by
    Chairman for the scrapping the written test, we have
    to hold the said decision arbitrary and without
    reason. The written test consisting of 100 objective
    type of multiple choice questions out of which 60
    questions relating to academic knowledge of the
    respective subjects including skill and method of
    teaching ability and 40 questions relating to general
    knowledge, general English and Hindi upto matric
    standard was well thought screening test, easy to
    conduct and easy to evaluate. The Commission being
    recruiting body abdicated its obligation of screening
    out the best candidates; The competitive examination,
    are means by which equality of opportunity was to be
    united with efficiency. By the above method
    favouritism was to be excluded and the goal of
    securing the best man for the job was to be achieved.
    We, thus, conclude that decision dated 30.06.2008 for
    not holding the written examination and steps taken
    consequent thereto were all arbitrary decisions,
    unsustainable in law.
    60
  60. At this stage we may note one more submission of
    Shri Kapil Sibal. Shri Sibal submits that when the
    Commission published notice dated 30.06.2008 that no
    written test shall be held, the writ petitioners
    ought to have challenged the above decision and the
    petitioners should have insisted that written
    examination may be held. They having not raised any
    challenge, at this stage, cannot be permitted to say
    that written test ought to have been held.
  61. We having held that change in criteria of
    selection was never notified by the Commission and
    about the change in process of selection candidates
    were kept in total dark and for the first time the
    criteria applied in selection process was published
    along with result dated 10.04.2008, the writ
    petitioners cannot be estopped in challenging the
    arbitrary criteria so applied. The submission of Shri
    Sibal cannot be accepted. The petitioners have never
    questioned the criteria which was published on
    28.12.2006 i.e. written test of 200 marks and viva
    voce of 25 marks, merely because they participated in
    the process of selection after the change of
    61
    criteria, their right to challenge the arbitrary
    change cannot be lost. Estopping the petitioners from
    challenging the change of criteria will be giving
    seal to arbitrary changes affected by Chairman as
    noted above.
  62. In view of the foregoing discussions, we answer
    point Nos.3,4 and 5 in following manner: –
    Ans.3:
    The decisions dated 30.06.2008, 11.07.2008 and
    31.07.2008 were arbitrary decisions without any
    reason to change the selection criterion published on
    28.12.2006 which have effect of downgrading the merit
    in the selection.
    Ans.4:
    The Commission being a multi-member body, all
    decisions pertaining to mode of selection and
    criteria was to be taken by the Commission itself,
    there being no rules or resolution delegating the
    said power to Chairman or any other member.
    62
    The decision of not holding written examination
    dated 30.06.2008, decision to screen on the basis of
    eight times of vacancies and percentage of marks
    dated 11.07.2008 and decision dated 31.07.2008 to
    call all eligible candidates, were all decisions
    taken by the Chairman himself, which decisions cannot
    be said to be decisions of the Commission.
    Ans.5:
    The decision dated 03.08.2008 was never taken on
    03.08.2008 as claimed and the said resolution was
    prepared subsequent to declaration of the result when
    the learned Single Judge asked for criteria of the
    selection, which was produced in a separate loose
    sheet signed by all members.
    Point No.6
  63. Shri Kapil Sibal, learned senior counsel has
    emphatically submitted that in the writ petitions,
    there are no allegations of mala fide against the
    Chairman or any member of the Commission and further
    neither Chairman nor any members being impleaded as
    63
    party respondent by the writ petitioner, the
    petitioners could not have challenged the allocation
    of marks in viva voce and there was no basis for any
    claim that marks in the viva voce of candidates
    having high academic qualification were deliberately
    reduced and those, who had poor academic records were
    deliberately given marks between 20 to 27 in the viva
    voce. Shri Kapil Sibal has placed reliance on
    judgment of this Court in Ratnagiri Gas and Power
    Private Limited Vs. RDS Projects Limited and Others,
    (2013) 1 SCC 524, where this Court has laid down that
    the law casts a heavy burden on the person alleging
    mala fides. This Court has further laid down that
    when the petitioners alleges malice in fact, it is
    obligatory for the petitioner to furnish particulars
    and implead the persons against whom such malice in
    fact is alleged. In paragraphs 25, 26.1, 26.2 and
    27, following has been laid down:-
    “25. ………………….The law casts a heavy burden
    on the person alleging mala fides to prove
    the same on the basis of facts that are
    either admitted or satisfactorily
    established and/or logical inferences
    deducible from the same. This is
    particularly so when the petitioner
    64
    alleges malice in fact in which event it
    is obligatory for the person making any
    such allegation to furnish particulars
    that would prove mala fides on the part of
    the decision-maker. Vague and general
    allegations unsupported by the requisite
    particulars do not provide a sound basis
    for the court to conduct an inquiry into
    their veracity.
    XXXXXXXXXXXXXXXX
    26.1. In State of Bihar v. P.P. Sharma,
    1992 Supp. (1) SCC 222, this Court summed
    up the law on the subject in the following
    words: (SCC p. 260, paras 50-51)
    “50. ‘Mala fides’ means want of
    good faith, personal bias,
    grudge, oblique or improper
    motive or ulterior purpose. The
    administrative action must be
    said to be done in good faith, if
    it is in fact done honestly,
    whether it is done negligently or
    not. An act done honestly is
    deemed to have been done in good
    faith. An administrative
    authority must, therefore, act in
    a bona fide manner and should
    never act for an improper motive
    or ulterior purposes or contrary
    to the requirements of the
    statute, or the basis of the
    circumstances contemplated by
    law, or improperly exercised
    discretion to achieve some
    ulterior purpose. The
    determination of a plea of mala
    fide involves two questions,
    namely, (i) whether there is a
    personal bias or an oblique
    motive, and (ii) whether the
    65
    administrative action is contrary
    to the objects, requirements and
    conditions of a valid exercise of
    administrative power.
  64. The action taken must,
    therefore, be proved to have been
    made mala fide for such
    considerations. Mere assertion or
    a vague or bald statement is not
    sufficient. It must be
    demonstrated either by admitted
    or proved facts and circumstances
    obtainable in a given case. If it
    is established that the action
    has been taken mala fide for any
    such considerations or by fraud
    on power or colourable exercise
    of power, it cannot be allowed to
    stand.”
    (emphasis supplied)
    26.2. We may also refer to the decision of
    this Court in Ajit Kumar Nag v. Indian Oil
    Corpn. Ltd., (2005) 7 SCC 764 where the
    Court declared that allegations of mala
    fides need proof of high degree and that
    an administrative action is presumed to be
    bona fide unless the contrary is
    satisfactorily established. The Court
    observed: (SCC p. 790, para 56)
    “56. … It is well settled that
    the burden of proving mala fide
    is on the person making the
    allegations and the burden is
    ‘very heavy’. (Vide E.P. Royappa
    v. State of T.N., (1974) 4 SCC
    3) There is every presumption in
    favour of the administration
    that the power has been
    exercised bona fide and in good
    faith. It is to be remembered
    66
    that the allegations of mala
    fide are often more easily made
    than made out and the very
    seriousness of such allegations
    demands proof of a high degree
    of credibility. As Krishna Iyer,
    J. stated in Gulam Mustafa v.
    State of Maharashtra, (1976) 1
    SCC 800 (SCC p. 802, para 2):
    ‘It (mala fide) is the last
    refuge of a losing litigant.’”
  65. There is yet another aspect which
    cannot be ignored. As and when allegations
    of mala fides are made, the persons
    against whom the same are levelled need to
    be impleaded as parties to the proceedings
    to enable them to answer the charge. In
    the absence of the person concerned as a
    party in his/her individual capacity it
    will neither be fair nor proper to record
    a finding that malice in fact had vitiated
    the action taken by the authority
    concerned. It is important to remember
    that a judicial pronouncement declaring an
    action to be mala fide is a serious
    indictment of the person concerned that
    can lead to adverse civil consequences
    against him.……………………….”
  66. There cannot be any dispute to the above
    preposition of law reiterated by this Court as above.
    We have noticed from the array of the parties in the
    writ petition that neither Chairman nor the members
    of the Commission were personally impleaded nor there
    67
    are any specific allegations of mala fide against the
    Chairman or the members of the Commission.
  67. The present is not a case of malice in fact. The
    “malice in fact” and “malice in law” are two wellknown concepts in law. In Ratnagiri Gas and Power
    Private Limited (supra), this Court has dealt with
    both the concepts, i.e., “malice in fact” and “malice
    in law”. Dealing with the conceptual difference
    between “malice in fact” and “malice in law”, this
    Court laid down following in paragraphs 30, 31 and
    32:-
    “30. ……………………….The conceptual difference
    between the two has been succinctly stated
    in the following paragragh by Lord Haldane
    in Shearer v. Shields, 1914 AC 808 (HL)
    quoted with approval by this Court in ADM,
    Jabalpur v. Shivakant Shukla, (1976) 2 SCC
    521: (SCC p. 641, para 317)
    “317. … ‘Between “malice in fact”
    and “malice in law” there is a
    broad distinction which is not
    peculiar to any system of
    jurisprudence. The person who
    inflicts a wrong or an injury
    upon any person in contravention
    of the law is not allowed to say
    that he did so with an innocent
    mind. He is taken to know the law
    and can only act within the law.
    He may, therefore, be guilty of
    68
    “malice in law”, although, so far
    as the state of his mind was
    concerned he acted ignorantly,
    and in that sense innocently.
    “Malice in fact” is a different
    thing. It means an actual
    malicious intention on the part
    of the person who has done the
    wrongful act.’” (Shearer case,
    1914 AC 808 HL, AC pp. 813-14)
  68. Reference may also be made to the
    decision of this Court in State of A.P. v.
    Goverdhanlal Pitti, (2003) 4 SCC 739 where
    the difference between “malice in fact”
    and “malice in law” was summed up in the
    following words: (SCC p. 744, paras 12-13)
    “12. The legal meaning of
    ‘malice’ is ‘ill will or spite
    towards a party and any indirect
    or improper motive in taking an
    action’. This is sometimes
    described as ‘malice in fact’.
    ‘Legal malice’ or ‘malice in law’
    means ‘something done without
    lawful excuse’. In other words,
    ‘it is an act done wrongfully and
    wilfully without reasonable or
    probable cause, and not
    necessarily an act done from ill
    feeling and spite. It is a
    deliberate act in disregard of
    the rights of others.’ (See Words
    and Phrases Legally Defined, 3rd
    Edn., London, Butterworths,
    1989.)
  69. Where malice is attributed to
    the State, it can never be a case
    of personal ill will or spite on
    the part of the State. If at all
    it is malice in legal sense, it
    69
    can be described as an act which
    is taken with an oblique or
    indirect object.”
    (emphasis supplied)
  70. To the same effect is the recent
    decision of this Court in Ravi Yashwant
    Bhoir v. Collector, (2012) 4 SCC 407
    wherein this Court observed: (SCC p. 431,
    paras 47-48)
    “Malice in law
  71. This Court has consistently
    held that the State is under an
    obligation to act fairly without
    ill will or malice in fact or in
    law. Where malice is attributed
    to the State, it can never be a
    case of personal ill will or
    spite on the part of the State.
    ‘Legal malice’ or ‘malice in law’
    means something done without
    lawful excuse. It is a deliberate
    act in disregard to the rights of
    others. It is an act which is
    taken with an oblique or indirect
    object. It is an act done
    wrongfully and wilfully without
    reasonable or probable cause, and
    not necessarily an act done from
    ill feeling and spite.
  72. Mala fide exercise of power
    does not imply any moral
    turpitude. It means exercise of
    statutory power for ‘purposes
    foreign to those for which it is
    in law intended’. It means
    conscious violation of the law to
    the prejudice of another, a
    depraved inclination on the part
    of the authority to disregard the
    rights of others, where intent is
    manifested by its injurious acts.
    70
    Passing an order for unauthorised
    purpose constitutes malice in
    law. (See ADM, Jabalpur v.
    Shivakant Shukla, (1976) 2 SCC
    521, Union of India v. V.
    Ramakrishnan, (2005) 8 SCC 394
    and Kalabharati Advertising v.
    Hemant Vimalnath Narichania,
    (2010) 9 SCC 437.)”
  73. The malice in law has been dealt as “something
    done without lawful excuse”. The malice in law is
    also mala fide exercise of power, exercise of
    statutory power for purposes foreign to those for
    which it is in law intended. In the present case,
    the power to device the mode of selection and fix the
    criteria for selection was entrusted on the
    Commission to further the object of selection on
    merit to fill up post in State in consonance with the
    provisions of Articles 14 and 16 of the Constitution
    of India. When the alteration of criteria has been
    made, which has obviously affected the merit
    selection as we have found above, the allegations
    which have been made in the writ petition against the
    Commission in conducting the selection are
    allegations of malice-in-law and not malice-in-fact.
    71
  74. The High Court had summoned the original records
    of the Commission including the marks awarded to the
    candidates both on basic qualification as well as
    essential qualification as well as viva voce. The
    observations, which have been made by the Division
    Bench in paragraphs 34 and 36 were inferences drawn
    by the High Court based on pattern of the marks
    allocated to some of the selected candidates and nonselected candidates. The observation of the High
    Court that “it cannot be a mere co-incidence that 90%
    of the meritorious candidates in academics performed
    so poorly in viva voce that they could not secure
    even 10 marks out of the 30 marks or that the
    brilliance got configurated only in the average
    candidates possessing bare eligibility” where
    inferences drawn from result sheet and re-affirms the
    allegations of malice-in-law. The inferences drawn
    by the High Court, thus, cannot be said to be
    unfounded nor are based on no material or perverse so
    as to call for any interference by this Court in
    these appeals. We, thus, do not find any substance
    in the submission of Shri Sibal that since no
    72
    specific allegations against Chairman and members
    have been made and they being not impleaded as the
    parties, the allegations in the writ petition
    regarding allocation of marks in viva voce cannot be
    looked into by the High Court. Point No.6 is
    answered accordingly.
    Point No.7
  75. The learned Single Judge in the impugned judgment
    while allowing the writ petition issued following
    directions: –
    “These writ petitions are thus allowed.
    The purported selection made by the
    Haryana Staff Selection Commission in
    pursuance to the advertisement No.6/2006,
    result whereof was published on 11.4.2010
    relating to category No. 23 for the posts
    of PTIs, is hereby quashed. A direction
    is issued to the Haryana Staff Selection
    Commission to hold a fresh selection, in
    accordance with law, within a period of
    five months from the date of receipt of
    certified copy of this order.”
  76. Learned counsel appearing for the Commission and
    for the State of Haryana submitted that no fresh
    selection can be conducted on the post of PTI in view
    of the statutory rules namely, Haryana School
    73
    Education State Cadre Service Rules, 2012, he submits
    that in the affidavit, which has been filed by the
    Commission on 11.02.2020, in paragraph 4, following
    has been stated:-
    “4. That so far, the details of the
    vacancies existing as on date in the
    relevant PTI Cadre, the Haryana Staff
    Selection Commission wrote a letter to
    Department of School Education to get the
    status of existing vacancies in PTI Cadre.
    In response to above said letter, the
    Department of School Education provided
    the following response and the operative
    part of said response is reproduced as
    follows:-
    “In this regard, it is submitted
    that the Classical & Vernacular
    (C&V) cadre which includes the
    appointment of PTI also has been
    declared diminishing cadre by the
    Government of Haryana by way of
    notifying the Haryana School
    Education (Group-C) State Cadre
    Service Rule, 2012 vide
    notification No. GSR12/Const./Art.309/2012 dated
    11.04.2012. The operative part
    of these rules, defined in Rule9(5) is relevant to be detailed
    herein:-
    The present Classical &
    Vernacular (C&V) cadre consisting
    of the posts of Sanskrit
    Teachers, Hindi Teachers, Punjabi
    Teachers, Physical Training
    Instructors (PTIs), Art & Craft
    Teachers (Drawing Teachers),
    Tailoring Teachers and Tabla
    74
    Players and governed by the
    Haryana State Education School
    Cadre (Group C) Service Rules,
    1998 shall be converted to TGT in
    relevant subject and no further
    requirement shall be made to
    these categories when the present
    incumbent on the notification of
    these rules vacate the post on
    his promotion, retirement or any
    other purpose.
    Since all the vacancies which
    were in existence on 11.04.2012
    have already been converted in
    TGT cadre and further the vacancy
    came into existence due to
    promotion, retirement or any
    other ground of a PTI has also
    got converted in TGT cadre,
    therefore, there exists no post
    of PTI now.
    The latest status of vacancies of
    PTI is submitted for
    consideration and further action
    thereon.”
  77. Elaborating his submission, learned counsel
    submits that the post of PTI is a dying cadre and now
    under Rules, 2012, there is post of TGT (Physical
    Education), which has higher qualifications, i.e.,
    Graduate with Physical Education from a recognised
    university. He submits that all posts of PTI have
    been converted into TGT, thus, fresh selection, if
    any, can be only on the post of TGT (Physical
    75
    Education). He has also referred to Rule 9(5) of
    Rules, 2012, which is to the following effect:-
    “9(5). The present Classical & Vernacular
    (C&V) Cadre consisting of the posts of
    Sanskrit Teachers, Hindi Teachers, Punjabi
    Teachers, Physical Training Instructors
    (PTIs), Art & Craft Teachers (Drawing
    Teachers), Tailoring Teachers and Tabla
    Players and governed by the Haryana State
    Education School Cadre (Group C) Service
    Rules, 1998 shall be converted to TGT in
    relevant subject and no further
    recruitment shall be made to these
    categories when the present incumbent on
    the notification of these rules vacate the
    post on his promotion, retirement or any
    other purpose.”
  78. Rule 2(h) defines TGT in following words:-
    “(h) “TGT” means Trained Graduate Teacher
    in the relevant subject appointed after
    notification of these rules and shall
    include masters appointed before
    notification of these rules;“
  79. Rule 9(1) deals with recruitment in the services.
    Rule 9(1)(j), which is relevant for the present case
    as follows:-
    “(j) in the case of TGT Physical Education
    (PT Master),
    (i) 67% by direct recruitment on
    contract basis; and
    (ii) 33% by Promotion from PTIs; or
    76
    (iii) by transfer or deputation of an
    official already in service of any
    State Government, Government of
    India; “
  80. When the rule contemplates filling up of the post
    of TGT (Physical Education) by 33% by promotion from
    PTI, PTI continues in the establishment, who can be
    promoted as TGT (Physical Education). The submission
    cannot be accepted that all PTI in block have been
    upgraded as TGT (Physical Education). Had the rule
    contemplated such result, there was no question of
    filling up TGT (Physical Education) by 33% by
    promotion from PTI. This court had occasion to
    examine Rules, 2012 in State of Haryana and Another
    Vs. Sandeep Singh and Others, (2019) 6 SCC 453. A
    writ petition was filed in the High Court by a
    teacher occupying the post of Drawing Teacher, he
    claimed that Drawing Teacher has been converted into
    Trained Graduated Teacher (TGT) under Rule 9(5),
    hence, the writ petitioners were also entitled to be
    promoted from the day their juniors were promoted as
    Trained Graduate Teachers. This Court examined the
    77
    Scheme of Rules, 2012 elaborately and following was
    laid down in paragraphs 19 and 20:-
    “19. The entire argument of the appellants
    is based upon the expression used that C&V
    teachers governed by the 1998 Rules shall
    be “converted to TGT in relevant subject”.
    The question is whether such C&V teachers
    stand upgraded to the post of TGT though,
    their promotion channel under the 1998
    Rules was to the post of Master which
    alone has been treated as TGT as defined
    in Rule 2(h) of the 2012 Rules and in view
    of express language of Rule 7 which
    mandates that the appointment shall be
    made to the post of TGT only in accordance
    with the qualifications prescribed in the
    2012 Rules.
  81. The reading of the Rules would show
    that C&V teachers are treated to be TGT so
    as to avoid anomalous situation where the
    C&V teachers after the commencement of the
    2012 Rules would not be governed by any
    set of Rules. Therefore, the expression
    that such C&V teachers stand converted to
    TGT is only to facilitate their service
    conditions to be governed by the 2012
    Rules rather than to upgrade the C&V
    teachers as members of TGT cadre. The
    feeder and the promotional cadre cannot be
    treated on a par by virtue of the
    expression used in Rule 9(5) of the 2012
    Rules that the C&V teachers shall be
    converted to TGT. Such conversion is only
    for a limited purpose of the 2012 Rules
    being extended to them and that such C&V
    teachers do not become member of the
    “cadre” eligible for promotion as
    Elementary School Headmaster. Rule 9(5) of
    the 2012 Rules does not use the word
    78
    “cadre”. Therefore, such teachers cannot
    be treated to be part of TGT cadre. Such
    interpretation is further supported by the
    fact that C&V Teacher is a dying cadre and
    no further recruitment is to be made in
    these categories.”
  82. This Court in the above judgment has held that
    there is no automatic conversion, upgradation of C&V
    Teachers into TGT and only to facilitate their
    service conditions, they are to be governed by Rules,
    2012.
  83. We in the present case are concerned with a
    selection, which was undertaken in pursuance of
    advertisement No.6/2006 for 1983 posts of PTI, result
    of which selection was declared on 10.04.2010.
    Challenge was made to the said selection in various
    writ petitions, which writ petitions were allowed by
    learned Single Judge vide judgment dated 11.09.2012.
    The selection dated 10.04.2010 was set aside, quashed
    and the Commission was directed to hold a fresh
    selection within a period of five months. When the
    selection was set aside for the post of PTI, the
    fresh selection ought to be held as per the
    advertisement No.6/2006 and process of recruitment
    79
    initiated with the advertisement No.6/2006 has to be
    brought to its logical end and for the purpose of
    selection in pursuance of advertisement No.6/2006,
    Rules, 2012 shall not come into way. We may also
    notice Rule 20 of Rules, 2012, which is to the
    following effect:-
    “20. The Haryana State Education School
    Cadre (Group-C) Service Rules, 1998,
    amended from time to time in so far as
    they are applicable to the posts included
    in the Service are hereby repealed:
    Provided that any order made or action
    taken under the rules so repealed shall be
    deemed to have been made or taken under
    corresponding provisions of these rules.”
  84. The selection on the post of PTI vide
    advertisement No.6/2006 was under the statutory rules
    then existing and selection process, which has been
    initiated under erstwhile rules was to be continued
    and had not to be scrapped as is clear from the
    Scheme of Rules, 2012. In any view of the matter,
    when the selection for 1983 posts of PTI was set
    aside and the High Court directed to hold a fresh
    selection, the selection process was to be continued
    80
    and completed under the orders of the High Court.
    We, thus, reject the submission of the learned
    counsel for the Commission and the State that fresh
    selection cannot be held as per direction of the
    learned Single Judge affirmed by the Division Bench.
    We, however, are of the view that selection initiated
    vide advertisement No.6 of 2006 has to be proceeded
    further from the stage the criterion was arbitrarily
    changed by the Chairman. The completion of selection
    has to be only from amongst the candidates who had
    applied against post of PTI, including those who were
    selected.
  85. The learned Single Judge after quashing the
    select list published on 11.04.2010 directed for
    fresh selection on post of PTI. The learned Single
    Judge, however, did not issue appropriate
    consequential directions for holding the fresh
    selection. There was no defect in the advertisement
    dated 20.06.2006 and mode of selection as envisaged
    by public notice dated 28.12.2006. The arbitrariness
    crept thereafter from the stage of scrapping the
    written test scheduled to take place on 20.07.2008.
    81
    The directions ought to have been issued to complete
    the process from that stage i.e. the stage of holding
    the written test. All the candidates who had applied
    for the post of PTI including those selected, ought
    to have been permitted to take the written test. We
    need to clarify that in the facts of the present case
    there was no requirement of fresh advertisement and
    inviting fresh applications. In the event fresh
    applications are called, large number of applicants
    who participated in the selection would have become
    over age. All the applicants who had applied in
    response to advertisement No.6 of 2006 had right to
    participate in selection as per criterion notified on
    28.12.2006. The direction of learned Single Judge
    needs modification and clarification to the above
    effect.
  86. We may also notice one more submission of the
    learned counsel for the appellant. Learned counsel
    for the appellant submits that in pursuance of
    selection dated 10.04.2010, the appellants were
    appointed and they have now continued for more than
    nine years and at this juncture, it is not equitable
    82
    to throw out them from their posts. In the present
    case, result of the selection dated 10.04.2010 was
    published on 11.04.2010 and the writ petitions were
    filed in May, 2010 itself, i.e., immediately.
    Selection was set aside by learned Single Judge on
    11.09.2012. The continuance of the appellants is
    only by way of interim order. This Court has also
    passed an order on 29.11.2013 for maintaining status
    quo, which order has been continued till this date.
    When the continuance of a person on a post is by
    virtue of an interim order, the continuance is always
    subject to outcome of the litigation. The
    displacement of appellants from their posts is
    inevitable consequence of upholding of the judgment
    of the High Court. A Constitution Bench of this
    Court in C. Channabasavaih Etc. Etc. Vs. State of
    Mysore and Others, AIR 1965 SC 1293 has made
    following observations in paragraph 9 in such a
    situation, which is beneficial to record, is as
    follows:-
    “9. It is very unfortunate that these
    persons should be uprooted after they had
    been appointed but if equality and equal
    83
    protection before the law have any meaning
    and if our public institutions are to
    inspire that confidence which is expected
    of them we would be failing in our duty if
    we did not, even at the cost of
    considerable inconvenience to Government
    and the selected candidates do the right
    thing…………………………”
  87. In view of the foregoing discussions and
    conclusions, we dispose of these appeals with the
    following directions:
    (i) The Commission shall conclude the entire
    selection process initiated by the
    advertisement No.6 of 2006 as per criterion
    notified on 28.12.2006 i.e. holding objective
    type written test of 200 marks and viva voce
    of 25 marks. All the applicants who had
    submitted applications in response to the
    above advertisement including those who were
    selected shall be permitted to participate in
    the fresh selection as directed.
    (ii) The candidates who have been selected and
    have worked on the post of PTI shall not be
    asked to refund any of the salary and other
    84
    benefits received by them as against their
    working on the posts. No refund shall also be
    asked from those candidates who after their
    selection worked and retired from service.
    (iii) The entire process be completed by the
    Commission within a period of five months
    from the date Commission starts working after
    the present lockdown is over, which was the
    time fixed by the learned Single Judge for
    completing the process.
    (iv) The costs imposed by the Division Bench in
    paragraph 54 of the judgment of the High
    Court are deleted except the costs imposed on
    the Commission.
  88. We, thus, while upholding the judgments of the
    High Court, subject to the modifications as above,
    dispose of these appeals.
  89. Before we close, we record our appreciation to
    learned counsel for the parties, who have rendered
    85
    valuable assistance to the Court in deciding these
    appeals.
    ………………….J.
    ( ASHOK BHUSHAN )
    ………………….J.
    New Delhi, ( NAVIN SINHA )
    April 08, 2020.