NUTAN KUMARI  versus B.R.A. BIHAR UNIVERSITY AND OTHERS
[2023] 14 S.C.R. 699, Supreme Court of India, 2023
Outcome: Disposed off
Segment: Issues
[2023] 14 S.C.R. 699 : 2023 INSC 966
699
CASE DETAILS
NUTAN KUMARI 
v.
B.R.A. BIHAR UNIVERSITY AND OTHERS 
(Civil Appeal Nos. 6232-6236 of 2013)
OCTOBER 12, 2023 
[HIMA KOHLI AND AHSANUDDIN AMANULLAH, JJ.]
HEADNOTES
Issue for consideration: Whether the Division Bench of the High 
Court was justiﬁ ed in allowing the appeals ﬁ led by the Physical Training 
Instructors-PTIs in four diﬀ erent colleges under the University and quashing 
the order of termination of services of the PTIs passed by the Single Judge 
of the High Court. 
Service law – Selection process adopted by the Selection Committee 
– Challenged to – Invitation of applications by the University for 
appointment of Physical Training Instructors-PTIs in four of its 
constituent colleges – Applications submitted by the appellant and 
the private respondents, thereafter called for interviews – Selection 
Committee conducted four diﬀ erent sets of interviews for each candidate 
applying to four colleges, on the same day – Good variation in the 
marks assigned to the candidates in the interview – Selection of the 
private respondents – Single Judge of the High Court holding that the 
selection as ﬂ awed and arbitrary, terminated the services of the private 
respondents – However, the Division Bench of the High Court quashed 
the order of termination – Correctness: 
Held: Once an advertisement has been issued and the selection criteria 
prescribed, there is little scope for relaxing the norms, more so, by the 
Selection
Committee unless and until it can be adequately demonstrated that 
it had the power to do so – Finding of the Single Judge of the High Court 
that the entire process adopted by the Selection Committee was arbitrary, 
irrational, and is liable to be set aside, is concurred with – Criteria ﬁ xed
700 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
by the Selection Committee was neither revealed in the advertisement, nor 
disclosed to the candidates prior to or even at the time of conducting the 
interviews – Selection Committee on its own ﬁ xed a total of 100 marks and 
assigned diﬀ erent marks for diﬀ erent academic qualiﬁ cations, 30 per cent 
of the total marks was ﬁ xed for interview, on the day of the interview itself 
– Instead of conducting a single interview for each candidate particularly, 
since all of them had applied and submitted separate applications for seeking 
appointment in the four constituent colleges under the University, the 
Selection Committee conducted four sets of interviews in respect of each of 
the candidates who had applied for appointment in diﬀ erent colleges – Close 
look at the marks assigned in the interviews showed the erratic assessment 
made by the Members of the Selection Committee – Thus, the impugned 
judgment cannot be sustained and is quashed and set aside – Judgment of 
the Single Judge is restored – Appointment orders in respect of the private 
respondents are quashed and set aside. [Para 13, 14, 15, 18]
Service jurisprudence – Selection Process – Power of Selection 
Committee:
Held: Selection process is bound by the terms and conditions of an 
advertisement inviting applications from eligible candidates – Unless it 
can be demonstrated that an advertisement has been issued contrary to any 
Statute or the applicable rules, it is
binding on all the participants – Even the 
Selection Committee does not have the jurisdiction to lay down a separate 
yardstick or basis for selection as that would be tantamount to legislating 
rules of selection – Once the process of selection commences, the criteria 
prescribed in the advertisement for conducting the selection of the eligible 
candidates cannot be altered – Once an advertisement has been issued and 
the selection criteria prescribed, there is little scope for relaxing the norms, 
more so, by the Selection Committee unless and until it can be adequately 
demonstrated that it had the power to do so – If the selection criteria is 
tinkered with in midstream, a party can have a legitimate grievance. [Para 
10, 10.4]
Service jurisprudence – Appointment/selection – Vested right of 
selection: 
Held: Merely by applying for a post pursuant to an advertisement, a 
candidate does not automatically acquire any vested right of selection – He
701
only acquires a right for being considered for selection strictly in accordance 
with the extant rules. [Para 10.3]
LISTS OF CITATIONS AND OTHER REFERENCES
Dr. Krushna Chandra Sahu and Others v. State of Orissa and Others 
(1995) 6 SCC 1: [1995] 3 Suppl. SCR 419; Sant Ram Sharma v. State of 
Rajasthan AIR (1967) SC 1910: [1968] 1 SCR 111; B.S. Yadav and Others 
v. State of Haryana and Others (1980) Supp. SCC 524; P.K. Ramachandra 
Iyer and Others v. Union of India and Others (1984) 2 SCC 141: [1984] 2 
SCR 200; Umesh Chandra Shukla v. Union of India and Others (1985) 3 
SCC 721: [1985] 2 Suppl. SCR 367; Durgacharan Misra v. State of Orissa 
(1987) 4 SCC 646: [1987] 3 SCR 1097; Bedanga Talukdar v. Saifudaullah 
Khan and Others (2011) 12 SCC 85: [2011] 11 SCR 635; Krishna Rai and 
Others v. Banaras Hindu University and Others (2022) 8 SCC 713: [2022] 
8 SCC 713; N.T. Devin Katti and Others v. Karnataka Public Service 
Commission and Others (1990) 3 SCC 157; Sureshkumar Lalitkumar Patel 
v. State of Gujarat 2023 SCC OnLine SC 167; Secretary, A.P. Public Service 
Commission and B. Swapna and Others (2005) 4 SCC 154: [2005] 2 SCR 
991; Mahendran v. State of Karnataka (1990) 1 SCC 411: [1989] 2 Suppl. 
SCR 385; Gopal Krushna Rath v. M.A.A. Baig (1999) 1 SCC 544: [1999] 1 
SCC 544; Ramachandra Iyer v. Union of India (1984) 2 SCC 141: [1984] 
2 SCR 200 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos.6232-6236 
of 2013.
From the Judgment and Order dated 16.05.2011 of the High Court of 
Patna in LPA Nos.408, 482, 593, 713 and 751 of 2011.
Appearances:
T. V. George, Pankaj Bisht, Vijay Rawat, Drone Sharma, Shaji 
Sebestian, Sanatan Ghosh, Advs. for the Appellant.
Prem Sunder Jha, Anandh K., Ms. Shruti Gopal Iyer, Advs. for the 
respondents.
NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY
702 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
JUDGMENT / ORDER OF THE SUPREME COURT
ORDER
1. The appellant1 is aggrieved by the judgment dated 16th May, 2011, 
passed by the Division Bench of the High Court of Patna whereunder the 
appeals2 ﬁ led by the respondents No. 5 to 8 herein working as Physical 
Training Instructors3 in four diﬀ erent colleges under the respondent No.1- 
University were allowed and the judgment of the learned Single Judge 
dated 10th February, 2011 passed in CWJC No. 14680 of 2020 ﬁ led by the 
appellant terminating their services was quashed. It was further clariﬁ ed 
that if the respondent No.1 – University, including the Chancellor were so 
inclined, they would be entitled to proceed afresh with the inquiry directed 
to be conducted in the matter after due notice to the private respondents 
herein.
2. We may ﬁ rst take note of some relevant facts of the case. 
2.1. An advertisement was issued by the respondent No.1-University 
on 13th July, 2008, inviting applications for appointment of PTIs in four of 
its constituent colleges. The said advertisement laid down three speciﬁ c 
conditions which are as follows: -
(a)  Each candidate would separately apply for the post of PTI in 
respect of each college.
(b)  The eligibility criteria for applying for the subject post was 
possession of a Bachelor’s degree in Physical Education 
or Graduation with Diploma in Physical Education from a 
recognized institution.
(c) 
The age limit for all the posts was
prescribed to be as per the 
Government rules/orders.
2.2. Pursuant to the aforesaid advertisement, the appellant and the 
private respondents submitted their applications along with several other 
1 
Parties have been described in the manner in which they have been arrayed in Civil 
Appeal No. 6232/2013.
2 
Letter Patent Appeals No. 408/2011, 482/2011, 593/2011, 713/2011 and 751/2011 
3 
For short ‘PTI’
703
applicants. All the parties submitted separate applications in respect of each 
of the four colleges.
2.3. It is not in dispute that the appellant and the private respondents 
No.5 to 8 were found eligible and were called for an interview. For 
conducting the interview, the respondent No.1 - University constituted a 
ﬁ ve Members’ Selection Committee4.
2.4. The Selection Committee met on 6th November, 2008 and 
interviewed the applicants. The Committee conducted four diﬀ erent sets 
of interviews for each candidate in respect of the applications submitted by 
them for four colleges in question. Thereafter, a merit list was prepared. A 
perusal of the said merit list reveals that though all the parties in the present 
proceedings were interviewed by the Selection Committee for the posts 
available in the four colleges on the same day but at four diﬀ erent times, 
there was a great variation in the marks assigned to the appellant and the 
respondents No.5 to 8 during the interview. This aspect was particularly 
noticed by the learned Single Judge, who observed as follows: -
“At this stage, I may notice one thing that stands out in the tabulation 
of the merit list. As noted above, all the ﬁ ve writ petitioners were 
interviewed for all the four Colleges by the same Committee of ﬁ ve 
persons allegedly four times on the same day. All other marks with 
regard to academic qualiﬁ cations and marks for higher qualiﬁ cations 
and experience were the same in all the four charts
but the marks 
given in interview (viva) varied drastically. For example, petitioner, 
Nutan Kumari in one interview was awarded 24 marks out of 30 in 
another 16 out of 30 in the third 12 out of 30 and in the 4th 20 out 
of 30. Such erratic variation is there in all the four merit lists where 
someone scores less in one and more in another. University is not able 
to give any justiﬁ cation for these markings. Details of other markings 
will be discussed at appropriate stage. Upon tabulation of results on 
14th February, 2009 University issued appointment letters in favour of 
the four writ petitioners leaving aside Nutan Kumari. Apparently, the 
four selected petitioners gave their joining immediately in February, 
4 
Vide oﬃ  ce order dated 27th October, 2008
NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY
704 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
2009 itself. Thereafter, pursuant to the orders of the Vice-Chancellor, 
by oﬃ  ce order dated 13.05.2009, the Registrar of the University ﬁ xed 
their pay scale at Rs.5000-150-8000.”
2.5. As is evident from the aforesaid observations, the appellant was 
interviewed four times by the same Selection Committee on the very same 
day and each time, the marks assigned to her varied from 12 to 16 to 20 to 
24 (out of a total of 30 marks).
2.6. In February, 2009, the four selected candidates, i.e., respondents 
No.5 to 8 herein, gave in their joining report and pursuant to the orders 
passed by the Vice-Chancellor of the respondent No.1 - University, their 
pay scales were ﬁ xed vide order dated 13th May, 2009. 
2.7. It transpires from the records that immediately thereafter, 
complaints were received by the Chancellor of the University of Bihar in 
respect of the aforesaid selection process and vide order dated 18th June, 
2009, a three Members’ Committee (Inquiry Committee) was appointed 
to inquire into the selection process adopted in respect of the PTIs by the 
respondent No.1 - University.
2.8. The appellant herein also lodged a protest with the Chancellor as to 
the manner in which the Selection Committee had conducted the interviews. 
The Inquiry Committee submitted a report to the Chancellor of the respondent 
No.1 - University on 7th October, 2009, recommending cancellation of the 
appointments made and for action to be taken
against the Vice Chancellor 
and the Registrar of the University. On receiving the said Inquiry report, the 
Chancellor directed cancellation of the appointments made to the post of 
PTIs and further directed the respondent No.1 - University to take necessary 
action in terms of the communication dated 5th January, 2010.
2.9. As a result, respondent No.1 - University issued a separate 
letter dated 15th February, 2010 to the respondents No.5 to 8, who were 
selected to the subject post calling upon them to show cause as to why their 
appointments should not be cancelled. The said notice was challenged by 
the respondents No.5 to 8, who ﬁ led separate writ petitions5 before the High 
5 
CWJC No. 3580 of 2010, CWJC No. 3611 of 2010, CWJC No. 3713 of 2010 and 
CWJC No. 3724 of 2010
705
Court that came to be decided by the common judgment and order dated 
10th February, 2011, passed by the learned Single Judge.
3. Pertinently, before notices to show cause were issued to respondents 
No.5 to 8, the appellant herein ﬁ led a separate writ petition6 challenging the 
selection of the respondents No.5 to 8. Afterwards, all the petitions ﬁ led by 
the appellant and respondents No.5 to 8 were taken up together and decided 
by the learned Single Judge vide common judgment and order dated 10th 
February, 2011. The writ petition ﬁ led by the appellant was allowed and those 
ﬁ led by the respondents No.5 to 8 were dismissed. The recommendations 
made by the Chancellor of the University were accepted. 
4. Aggrieved by the aforesaid decision, respondents No.5 to 8 
preferred intra court appeals7 before the Division Bench. By the impugned 
judgement, the Division Bench has set aside the well-reasoned order passed 
by the learned Single Judge and held that merely because there were some 
variations in the marks obtained by various candidates in the four diﬀ erent 
interviews conducted by the Selection Committee would alone not indicate 
with certainty that the selection process was grossly vitiated for requiring 
interference. The Division Bench frowned upon the learned Single Judge 
for having gone into the said issue and observed that all the candidates had 
been subjected to the same yardstick and therefore, no discrimination could 
be alleged. As a result, the writ
petition4 ﬁ led by the appellant, which was 
allowed by the learned Single Judge, was dismissed as meritless.
5. As far as the respondents No.5 to 8 were concerned (appellants 
before the Division Bench), it was observed that since no notice was 
issued to the said respondents at the stage of the inquiry ordered by the 
Chancellor, respondent No.1 – University, their termination was bad in law 
and in violation of the principles of natural justice. Resultantly, the orders 
terminating the services of the private respondents, including the directions 
issued by the Chancellor, were quashed and set aside with liberty granted 
to the authorities to proceed afresh with the inquiry after due notice to the 
respondents. 
6 
CWJC No. 14680 of 2009
7 
Letter Patent Appeals No. 482/2011, 408/2011, 593/2011, 713/2011 and 751/2011
NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY
706 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
6. It is the aforesaid judgment that has brought the appellant before 
this Court. Learned counsel for the appellant has primarily argued that 
there was no good reason for the Division Bench to have interfered in a 
well-reasoned and analyzed judgment passed by the learned Single Judge 
where all aspects were carefully considered on merits before returning the 
ﬁ ndings. It is submitted that the Division Bench has completely ignored the 
fact that there were drastic variations in the marks assigned to the appellant 
in the interview which cannot be termed as “some variation” as sought to be 
described in the impugned judgment. While in one interview, the appellant 
had scored 24 marks out of 30 marks, on the same day, the same Selection 
Committee on conducting another interview of the appellant assigned her 
12 marks out of 30 marks, thus materially aﬀ ecting the outcome of the 
selection process. 
7. It is next submitted by learned counsel for the appellant that the 
respondent No.6 herein, Shri Chandrama Singh, who was selected and 
appointed as a PTI in a women’s college (M.S.K.B. College, Muzaﬀ arpur), 
was over-aged and therefore, ineligible to have even applied for the subject 
post. Learned counsel submits that the respondent No.6 was born on 3rd 
April,1971; the advertisement in question was published on 13th July, 2008 
and the last date of receipt of the applications was 5th August, 2008. As on 
3rd April, 2007, the
respondent No.6 had already completed 37 years of age 
and therefore, he was clearly over age on the date of the advertisement itself, 
i.e., on 13th July, 2008. This aspect was duly noted by the learned Single 
Judge and the submission made by the appellant was upheld but the Division 
Bench did not discuss the said issue at all in the impugned judgment.
8. On the aforesaid aspect, Dr. Adish C. Aggarwala, learned Senior 
Advocate appearing for the respondent No.6 seeks to place reliance on a 
document ﬁ led by the appellant with the appeal paper book and marked as 
“Annexure-P4” which is a typed copy of the ﬁ le notings of the respondent 
No.1 - University wherein, it has been recorded by the Registrar that for 
the purposes of calculating the eligibility with respect to the age of the 
candidates, it was decided that the age shall be counted as on 1st January, 
2008 since the advertisement process was commenced in the said year. 
The said recommendation made by the Registrar was duly approved by the 
Vice-Chancellor on the same day.
707
9. We have perused the records and given our thoughtful consideration 
to the arguments advanced by both sides.
10. It has been time and again held in judicial verdicts that the selection 
process is bound by the terms and conditions of an advertisement inviting 
applications from eligible candidates. Unless it can be demonstrated that an 
advertisement has been issued contrary to any Statute or the applicable rules, 
it is binding on all the participants to the point that not even the Selection 
Committee has the jurisdiction to lay down a separate yardstick or basis 
for selection as that would be tantamount to legislating rules of selection. 
It is equally well settled that once the process of selection commences, the 
criteria prescribed in the advertisement for conducting the selection of the 
eligible candidates cannot be altered. There is sound logic behind the same 
which is that if the selection criteria is tinkered with in midstream, say for 
example by lowering the standards, a party can have a legitimate grievance 
that had it known that the criteria would be reduced subsequently, it too 
could have applied for the said post.
10.1. To elucidate the point above, we may usefully refer to the decision 
in Dr. Krushna Chandra Sahu and Others v. State of Orissa and Others8 
where it has been held thus : 
“31. Now, power to make rules regulating the conditions of service of 
persons appointed on Government posts is available to the Governor of 
the State under the
proviso to Article 309 and it was in exercise of this 
power that the present rules were made. If the statutory rules, in a given 
case, have not been made, either by Parliament or the State Legislature, 
or, for that matter, by the Governor of the State, it would be open to 
the appropriate Government (the Central Government under Article 
73 and the State Government under Article 162) to issue executive 
instructions. However, if the rules have been made but they are silent 
on any subject or point in issue, the omission can be supplied and the 
rules can be supplemented by executive instructions (See: Sant Ram 
Sharma v. State of Rajasthan [AIR 1967 SC 1910 : (1968) 1 SCR 
111 : (1968) 2 LLJ 830] .)
8 
(1995) 6 SCC 1
NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY
708 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
32. In the instant case, the Government did neither issue any 
administrative instruction nor did it supply the omission with regard 
to the criteria on the basis of which suitability of the candidates was 
to be determined. The members of the Selection Board, of their own, 
decided to adopt the conﬁ dential character rolls of the candidates who 
were already employed as Homoeopathic Medical Oﬃ  cers, as the basis 
for determining their suitability.
33. The members of the Selection Board or for that matter, any 
other Selection Committee, do not have the jurisdiction to lay down 
the criteria for selection unless they are authorised speciﬁ cally in 
that regard by the Rules made under Article 309……”
[Emphasis added]
(Also refer : B.S. Yadav and Others v. State of Haryana and Others9; 
P.K. Ramachandra Iyer and Others v. Union of India and Others10; Umesh 
Chandra Shukla v. Union of India and Others11; and Durgacharan Misra 
v. State of Orissa12) 
10.2. In Bedanga Talukdar v. Saifudaullah Khan and Others13, this 
Court highlighted the fact that any power of relaxation of the stipulated 
selection procedure ought to be mentioned in the advertisement in the 
following words:-
“29. We have considered the entire matter in detail. In our opinion, it 
is too well settled to need any further reiteration that all appointments 
to public oﬃ  ce have to be made in conformity with Article 14 of the 
Constitution of India. In other words,
there must be no arbitrariness 
resulting from any undue favour being shown to any candidate. 
Therefore, the selection process has to be conducted strictly in 
accordance with the stipulated selection procedure. Consequently, 
when a particular schedule is mentioned in an advertisement, 
the same has to be scrupulously maintained. There cannot be 
any relaxation in the terms and conditions of the advertisement 
9 
(1980) Supp. SCC 524
10 (1984) 2 SCC 141 
11 (1985) 3 SCC 721
12 (1987) 4 SCC 646
13 (2011) 12 SCC 85
709
unless such a power is speciﬁ cally reserved. Such a power could 
be reserved in the relevant statutory rules. Even if power of 
relaxation is provided in the rules, it must still be mentioned in 
the advertisement. In the absence of such power in the rules, it 
could still be provided in the advertisement. However, the power 
of relaxation, if exercised, has to be given due publicity. This would 
be necessary to ensure that those candidates who become eligible 
due to the relaxation, are aﬀ orded an equal opportunity to apply and 
compete. Relaxation of any condition in advertisement without due 
publication would be contrary to the mandate of equality contained 
in Articles 14 and 16 of the Constitution of India.
30. A perusal of the advertisement in this case will clearly show that 
there was no power of relaxation. In our opinion, the High Court 
committed an error in directing that the condition with regard to the 
submission of the disability certiﬁ cate either along with the application 
form or before appearing in the preliminary examination could be 
relaxed in the case of Respondent 1. Such a course would not be 
permissible as it would violate the mandate of Articles 14 and 16 of 
the Constitution of India.”
[Emphasis added]
(Also refer: Krishna Rai and Others v. Banaras Hindu University 
and Others14) 
10.3. It is also a part of settled service jurisprudence that merely by 
applying for a post pursuant to an advertisement, a candidate does not 
automatically
acquire any vested right of selection. He only acquires a right 
for being considered for selection strictly in accordance with the extant rules. 
This Court has held in N.T. Devin Katti and Others v. Karnataka Public 
Service Commission and Others15 as follows:
“11. There is yet another aspect of the question. Where advertisement 
is issued inviting applications for direct recruitment to a category of 
posts, and the advertisement expressly states that selection shall be 
made in accordance with the existing rules or government orders, 
14 (2022) 8 SCC 713
15 (1990) 3 SCC 157
NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY
710 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
and if it further indicates the extent of reservations in favour of 
various categories, the selection of candidates in such a case must 
be made in accordance with the then existing rules and government 
orders. Candidates who apply, and undergo written or viva voce test 
acquire vested right for being considered for selection in accordance 
with the terms and conditions contained in the advertisement, unless 
the advertisement itself indicates a contrary intention. Generally, a 
candidate has right to be considered in accordance with the terms 
and conditions set out in the advertisement as his right crystallizes 
on the date of publication of advertisement, however he has no 
absolute right in the matter. If the recruitment Rules are amended 
retrospectively during the pendency of selection, in that event selection 
must be held in accordance with the amended Rules. Whether the Rules 
have retrospective eﬀ ect or not, primarily depends upon the language 
of the Rules and its construction to ascertain the legislative intent. 
The legislative intent is ascertained either by express provision or by 
necessary implication; if the amended Rules are not retrospective in 
nature the selection must be regulated in accordance with the rules and 
orders which were in force on the date of advertisement. Determination 
of this question largely depends on the facts of each case having 
regard to the terms and conditions set out in the
advertisement and 
the relevant rules and orders. Lest there be any confusion, we would 
like to make it clear that a candidate on making application for 
a post pursuant to an advertisement does not acquire any vested 
right of selection, but if he is eligible and is otherwise qualiﬁ ed in 
accordance with the relevant rules and the terms contained in the 
advertisement, he does acquire a vested right of being considered 
for selection is accordance with the rules as they existed on the 
date of advertisement. He cannot be deprived of that limited right 
on the amendment of rules during the pendency of selection unless 
the amended rules are retrospective in nature.”
[Emphasis added]
(Also refer : Sureshkumar Lalitkumar Patel v. State of Gujarat16)
16 2023 SCC OnLine SC 167
711
10.4. Further, once an advertisement has been issued and the selection 
criteria prescribed, there is little scope for relaxing the norms, more so, by 
the Selection Committee unless and until it can be adequately demonstrated 
that it had the power to do so. We may allude to a decision of this Court in 
Secretary, A.P. Public Service Commission and B. Swapna and Others17 
which highlights the adverse consequences of interfering with the criteria 
of selection laid down under the rules in the following words: 
“14. The High Court has committed an error in holding that the 
amended rule was operative. As has been fairly conceded by learned 
counsel for Respondent 1 applicant it was the unamended rule which 
was applicable. Once a process of selection starts, the prescribed 
selection criteria cannot be changed. The logic behind the same is based 
on fair play. A person who did not apply because a certain criterion e.g. 
minimum percentage of marks can make a legitimate grievance, in case 
the same is lowered, that he could have applied because he possessed 
the said percentage. Rules regarding qualiﬁ cation for appointment if 
amended during continuance of the process of selection do not aﬀ ect 
the same. That is because every statute or statutory rule is prospective 
unless it is expressly or by necessary implication made to have 
retrospective eﬀ ect. Unless there are words in the statute or in the rules 
showing the intention to aﬀ ect existing rights the rule must be
held to 
be prospective. If the rule is expressed in a language which is fairly 
capable of either interpretation it ought to be considered as prospective 
only. (See P. Mahendran v. State of Karnataka [(1990) 1 SCC 411 
: 1990 SCC (L&S) 163 : (1990) 12 ATC 727] and Gopal Krushna 
Rath v. M.A.A. Baig [(1999) 1 SCC 544 : 1999 SCC (L&S) 325] .)
15. Another aspect which this Court has highlighted is scope for 
relaxation of norms. Although the Court must look with respect 
upon the performance of duties by experts in the respective ﬁ elds, it 
cannot abdicate its functions of ushering in a society based on rule 
of law. Once it is most satisfactorily established that the Selection 
Committee did not have the power to relax essential qualiﬁ cation, 
the entire process of selection so far as the selected candidate is 
17 (2005) 4 SCC 154
NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY
712 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
concerned gets vitiated. In P.K. Ramachandra Iyer v. Union of 
India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] this Court held 
that once it is established that there is no power to relax essential 
qualiﬁ cation, the entire process of selection of the candidate was in 
contravention of the established norms prescribed by advertisement. 
The power to relax must be clearly spelt out and cannot otherwise be 
exercised.”
[Emphasis added]
11. Coming back to the case in hand, the learned Single Judge has 
scrupulously examined the records and the pleadings in the petitions and 
made the following pertinent observations in respect of the selection process 
adopted by the Selection Committee constituted by the respondent No.1 - 
University :
“There are three types of physical education qualiﬁ cation. The ﬁ rst 
is a three year physical education course after Intermediate resulting 
in degree of B.P.E. The second is a three year Graduation course in 
any subject after Intermediate plus one year physical education course 
conducted by University leading to B.P. Ed. Degree and the third is 
three year Graduation course in any subject after Intermediate and 
one year physical education diploma course conducted by School 
Examination Board leading to D.P. Ed. The selection committee on 
the date of interview evolved marking system for Graduation level 
which as noted above was as follows.
For candidates with B.P.E and B.P. Ed. their marks
scored in 
B.P.E and B.P. Ed. were only taken and in a graded manner. If they 
had scored more than 75% they were awarded 40 out of 40, if they 
scored 60-75% they were awarded 30 out of 40, if they had scored 
45-60% they were awarded 25 out of 40 and if they had scored below 
45% they were awarded 20 out of 40 but when it came to D.P. Ed. 
their marks scored were calculated diﬀ erently. Their marks out of 
40 for Graduation was split into two of 20 marks each, 20 marks for 
their three years Graduation course and only 20 marks maximum for 
their physical education course. The result was that though petitioner, 
Nutan Kumari had 83.6% in D.P. Ed., she was awarded only 20 marks, 
whereas others who had scored lesser marks in physical education but
713
had B.P.E. or B.P. Ed. were given higher marks on that basis ignoring 
their Graduation or other marks. For example, Ravi Shankar Kumar 
who had got 80% was given 40 marks, Mithilesh Kumar Mani who 
had scored 72.6% was given 30 marks, Chandrama Singh who had 
scored 55% was given 25 marks and Sanjay Kumar Singh scored 57% 
was given 25 marks.
Then the challenge is to the marks on higher qualiﬁ cation and 
experience. It is submitted that the two are diﬀ erent criterion but 
the total marks combined has been ﬁ xed at 10 not disclosing any 
bifurcation or any criteria. 
Then is the marks for viva (interview), which is 30% of the total 
marks, as noted in the very beginning, the same set of ﬁ ve members on 
the same day interviewed the selected candidates four times, one time 
each for each College and gave drastically diﬀ erent marks. First, in this 
regard it is submitted that this shows the erratic irrational marking on 
subjective satisfaction, which interview marks being as high as 30% 
is irrational, especially, when it is showed that the diﬀ erence between 
selection and non-selection was barely a few marks.”
12. After carefully examining the entire records, the learned Single 
Judge has made the following pertinent observations:-
“Having considered the rival submissions, in my view, the 
hostile discrimination and arbitrariness is writ large on the face of 
the records. No one with any amount of reasonable certainty knew 
the selection procedure or the process. It
stands undisputed that the 
criterion were laid down only on the date of interview even then it 
was not made known to people. This is a clear cut case of bad and 
wrong administrative action. There is absolutely no transparency 
and such process cannot be sanctiﬁ ed by the Court. On top of it to 
say that petitioner, Nutan Kumari had participated in the selection 
process and, as such, could not challenge it after appointments were 
made, would be travesty of justice. Anyone could have challenged 
the criteria if they were disclosed in the advertisement or before the 
interview or before the selection but all that was kept secret. That came 
to be known much later after appointments were made. That cannot 
estop Nutan Kumari from challenging what she did not know and what 
NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY
714 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
was never made public. This objection by the University and the other 
petitioners cannot be sustained. In my view, the law is settled. If a 
person participates in selection process with his eyes open knowing 
the selection process then upon failure to get selected he cannot 
turn around and challenge the same. He would be deemed to have 
acquiescence to the same. That is not at all the case in the present 
as noted above. Nutan Kumari challenged the process even before 
the enquiry committee gave its report. The challenge cannot be 
said to be belated in any aspect of the matter. The criterion were 
not disclosed. It is only after the criterion were disclosed to some 
extent can it be said that a person was in a position to challenge. 
If that is kept in mind it would be seen that there was no unreasonable 
delay in the challenge at all. Moreover, the extent of arbitrariness in 
the selection process, as would be noticed, fully justiﬁ es in setting 
aside the selection process and the selection itself.
Now, coming to the markings in respect of Graduation. As 
noted above, there are three types of physical education courses. One 
is a three year course after Intermediate and the other two being one 
year courses after three years Graduation in any subject. It matters 
little whether it is a one year Diploma course or one year degree 
course because under statute University alone can grant degree, the 
School Examination Board
cannot and that is the only reason for this 
distinction. If classiﬁ cation had to be made, subject to it being 
reasonable, it could be between the three years physical education 
course and the one year physical education course but the moot 
point to be noted here is that in the advertisement all are treated 
similarly for eligibility with no preference. or distinctions. If the 
advertisement itself did not provide for any diﬀ erentiation or 
diﬀ erent treatment then at the time of evaluation no new criteria 
could be laid down. The eﬀ ect is evident from the marks sheet of 
petitioner, Nutan Kumari. She got 83.6% marks in D.P.Ed and in three 
years Graduation course she had got 48.8%. Thus, totally she was 
given 32 marks being 20 plus 12 respectively out of 40 marks. Ravi 
Shankar Kumar, had 80% either in B.P.E. or B.P.Ed. he was given 40 
marks out of 40. There are various instances, as noted earlier, to 
show the arbitrary results of this arbitrary criteria, which criteria,
715
as noted above, was decided at the time of interview. When all 
applications had been scrutinized the assertion that these criterion 
were evolved to promote certain candidates cannot, thus, be said 
to be unfounded.
Again, when we come to marks of higher qualiﬁ cations and 
experience, no one has disclosed as to what was the criteria of 
awarding marks under this head. Again, it is left to the whims of 
the selection committee which cannot be countenanced. Again, we 
come to the case of marks for interview, the things are worst. The 
same set of ﬁ ve people on the same day interviewed all the ﬁ ve 
petitioners four times. for the same job and in each interview the 
marks drastically varied. These are subjective evaluation based on 
subjective satisfaction it is these marks which have made substantial 
diﬀ erence, as noted above, the margin being very small. Apart from 
this, to this Court it appears that subjective marks cannot be, in the 
nature of appointment, as high as 30%. These two things coupled 
together make the process quite arbitrary and discriminatory. Thus, the 
process as a whole as adopted cannot be said to be valid in law. The 
process must thus be struck down and is struck down. Consequently, 
it is held that the selection was bad.”
[Emphasis added]
13. As can be seen from the above, the learned Single Judge took 
pains to scrutinize the entire process adopted by the Selection Committee 
and returned a ﬁ nding that the same was arbitrary, irrational and
liable to 
be set aside. We are in concurrence with the said ﬁ ndings returned by the 
learned Single Judge.
14. Keeping in mind the challenge laid by the appellant herein to the 
selection process what emerges from the observations made by the learned 
Single Judge is as follows:-
(i) 
That the Selection Committee proceeded to ﬁ x the criteria for 
assigning marks to the candidates on the date of conducting 
the interviews. The said criteria was neither revealed in the 
advertisement, nor disclosed to the candidates prior to or even 
at the time of conducting the interviews.
NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY
716 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
(ii) That though the advertisement only laid down the eligibility 
criteria by virtue of the qualiﬁ cations prescribed for inviting 
applications from applicants, the Selection Committee on its 
own ﬁ xed a total of 100 marks and assigned diﬀ erent marks for 
diﬀ erent academic qualiﬁ cations, i.e., 10 marks for matriculation, 
10 marks for intermediate and 40 marks for graduation.
(iii) That the marks for the interview were ﬁ xed by the Selection 
Committee as 30 per cent of the total marks on the day of the 
interview itself. Instead of conducting a single interview for 
each candidate particularly, since all of them had applied and 
submitted separate applications for seeking appointment in the 
four constituent colleges under the respondent No.1 – University, 
the Committee decided to conduct four sets of interviews in 
respect of each of the candidates who had applied for appointment 
in diﬀ erent colleges. A close look at the marks assigned in the 
interviews showed the erratic assessment made by the Members 
of the Selection Committee.
15. In view of the above facts and circumstances, the learned Single 
Judge rightly concluded that the entire process adopted by the Selection 
Committee was vitiated and could not withstand judicial scrutiny.
16. As for the respondent No.6, besides the observations made above, 
we may additionally note that the maximum age limit for appointment to 
the subject post as prescribed by the State
Government for General category 
male candidates, which in the instant case all the private respondents before 
the Court fall under, was 37 years and for the unreserved Category (Women) 
was 40 years. In the counter aﬃ  davit ﬁ led by the respondent No.3, Registrar, 
University of Bihar, it has been stated in paragraph 14 as follows:-
“That in reply to paragraph 5(c) of ground it is stated that as contained 
in advertisement, the age limit for the post will be applicable as per 
Government Rule or Order. It is stated that the Government has 
provided the cut oﬀ  date to be 1st of August, of the each year for 
determination of age.”
17. In the light of the aforesaid categorical stand taken by the respondent 
No.1 - University that the cut-oﬀ  date for determining the age limit of the
717
applicants in terms of the applicable rules was to be taken as the ﬁ rst day of 
August of each year, which in the present case would mean 1st August, 2008, 
quite evidently, the respondent No.6 was not qualiﬁ ed for even applying for 
the subject post, having crossed the maximum age prescribed for a general 
category (Male) candidate, i.e., 37 years. In any event, the Government 
Rule/ Order mentioned in the advertisement having been elaborated by the 
respondent No.3 in the counter aﬃ  davit, any reliance sought to be placed 
by the respondents No.5 to 8 on the internal ﬁ le notings of the University 
that too, much after the date of issuance of the advertisement (25th October, 
2008 to 27th October, 2008), would not be of any consequence.
18. As a result of the aforesaid discussion, we are of the opinion that the 
impugned judgment cannot be sustained and the same is accordingly quashed 
and set aside. The judgment of the learned Single Judge dated 10th February, 
2011 is restored. As a sequitur to the aforesaid order, the appointment orders 
in respect of the respondents No.5, 7 and 8 are quashed and set aside. It 
is further held that the respondent No.6 being ineligible for applying to 
the subject post, his application ought to have been rejected outright and 
therefore, his appointment order is hereby quashed. This leaves us with 
four posts of PTI’s in four constituent colleges under the respondent No.1 
- University that are required to be ﬁ lled up. For this
purpose, it is deemed 
appropriate to direct the University to constitute a Selection Committee, 
which shall consider the candidature of the appellant and the respondents 
No.5, 7 and 8. The Selection Committee shall conduct a single interview in 
respect of the aforesaid candidates irrespective of the number of applications 
that they may have been ﬁ led for the subject posts. While conducting the 
interview, no separate marks shall be assigned for the diﬀ erent qualiﬁ cations 
possessed by the candidates inasmuch as the advertisement issued by the 
respondent No.1 - University did not contain any such stipulation. 
19. A common merit list shall be prepared by the Selection Committee, 
keeping in mind the qualiﬁ cations of each of the aforesaid candidates as also 
the marks allocated to them in the interview to be conducted. Thereafter, 
a seniority list shall be drawn and the candidates shall be assigned to the 
respective colleges, in accordance with the said list. The entire exercise 
shall be completed within eight weeks from the date of constitution of the 
Committee and the results shall be declared under intimation to the appellant 
and the respondents No. 5, 7 and 8.
NUTAN KUMARI v. B.R.A. BIHAR UNIVERSITY
718 
SUPREME COURT REPORTS 
[2023] 14 S.C.R.
20. It is further directed that in view of the past history of the matter 
where serious allegations were levelled against the Vice-Chancellor and the 
Registrar of the respondent No.1 - University and the report submitted by 
the Inquiry Committee constituted by the Vice-Chancellor has indicted the 
aforesaid oﬃ  cers, we leave it to the discretion of the Chancellor to constitute 
a Selection Committee in accordance with law within four weeks from the 
date a copy of this order is placed before him. 
21. It is made clear that since no other candidate had approached the 
High Court except for the appellant herein and the respondents No.5 to 8, 
the selection process shall be conﬁ ned to the said parties alone.
22. The civil appeals are allowed and disposed of on the above terms. 
There shall be no orders as to costs.
Headnotes prepared by:  
Appeals disposed of.
Nidhi Jain