Gujarat High Court
Amit Narendrabhai Panchal vs Gujarat Service Public Service ... on 16 October, 2019
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/1152/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1152 of 2017
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AMIT NARENDRABHAI PANCHAL
Versus
GUJARAT SERVICE PUBLIC SERVICE COMMISSION & 8 other(s)
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Appearance:
MR G.M. JOSHI, SENIOR ADVOCATE WITH MR VYOM H SHAH(9387) for
the Petitioner(s) No. 1
MR HARSH K THAKAR(7172) for the Respondent(s) No. 1
SERVED BY RPAD (N)(6) for the Respondent(s) No. 2,3,4,5,6,7,8,9
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 16/10/2019
ORAL ORDER
Heard learned senior advocate Mr.G.J. Joshi assisted by Mr.Vyom H. Shah for the petitioner and learned advocate Mr.Harsh K. Thakar for the respondent Gujarat Public Service Commission.
2. By filing present petition under Article 226 of the Constitution, the petitioner has prayed to set aside the result declared by the respondent Gujarat Public Service Commission (GPSC) on 14.12.2016. It is further prayed to quash the appointment of private respondent Nos.2 to 9.
3. The basic facts are that upon the respondent GPSC issuing advertisement to invite applications for the post of Designated Officer, Food and Drug Administration, General State Service, ClassI, the petitioner herein applied. The petitioner was already working. The advertisement came to be issued Page 1 of 7 Downloaded on : Sat Oct 19 00:05:52 IST 2019 C/SCA/1152/2017 ORDER in view of the implementation of the Food Safety and Standard Act, 2006. The petitioner appeared in the interview on 23.11.2016.
4. Learned senior advocate for the petitioner submitted that the petitioner was not asked any question relating to enforcement of the Act or in any regarding the statutory provisions. It was submitted that on the basis of viva voce, 8 names were recommended and 30 candidates were shown to be unsuccessful. The petitioner was declared unsuccessful at Sr.No.19 having secured 30 marks, stated learned senior advocate for the petitioner.
5. The principal contention raised in the petition is that the selection was entirely based on the performance in the viva voce test for which any parameters were not fixed. It was submitted that cent percent weightage given to the interview rendered the process arbitrary and nontransparent. It was submitted that the sufficient weightage ought to have been given to the qualification as well as factors like experience of the candidates.
5.1 On the other hand, learned advocate for the respondent GPSC relied on the affidavitinreply filed by the GPSC to submit that 23 posts were advertised for which 104 applications were received and 45 candidates were found eligible on the basis of qualification and experience to be called for oral interview. It was submitted that the procedure of selection was clearly mentioned in the advertisement Page 2 of 7 Downloaded on : Sat Oct 19 00:05:52 IST 2019 C/SCA/1152/2017 ORDER and that there was no deviation or arbitrariness.
5.2 It was further submitted by learned advocate for the respondent GPSC that the petitioner was not entitled to raise a challenge against the process and the selection criteria since he had participated in the recruitment process and thereafter filed the petition to question the process.
6. It was not possible to brush aside the submission on the part of the respondent GPSC that the petitioner had participated in the process and thereafter chose to challenge it. It is trite principle that a candidate who participates in the recruitment process, is estopped from challenging the same subsequently.
7. It is well settled and oftreiterated proposition that once the candidate takes part in the process of selection, he is subsequently not to be allowed to question the selection process and challenge the same. In Apex Court's decision in G. Sarana v. University of Lucknow [(1976) 3 SCC 585], the petitioner had applied for the post of Professor of Anthropology in the University of Lucknow who appeared before the Selection Committee but failed to get the appointment, whereafter he filed a petition before the High Court alleging bias against him by three experts in the Selection Committee and questioning the constitution of the Selection Committee. The Supreme Court observed that it was not necessary for the court to go into the question of Page 3 of 7 Downloaded on : Sat Oct 19 00:05:52 IST 2019 C/SCA/1152/2017 ORDER reasonableness of bias or real likelihood of bias because the petitioner appeared before the Committee and at the relevant time did not raise any finger against constitution of the Committee. It was ruled that petitioner voluntarily appeared before the Committee and took chance of favourable view of the Committee, but when he was not able to get the appointment, he turned around his face.
7.1 Similar was the principle pronounced in Nanak Lal v. Prem Chand Singhvi [AIR 1957 SC 425] where the appellant found to have taken chance to secure a favourable report from the Tribunal but when confronted with the unfavourable report, he adopted the device of raising objection. In Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285] the Apex Court held that as the petitioner appeared at the examination without any protest and when he found that he would not succeed in the examination, he filed a petition challenging the examination, the High Court should not have granted any relief to such petitioner.
7.2 Again in Manish Kumar Shahi v. State of Bihar [(2010 12 SCC 576] it was emphasised that the conduct of the petitioner in taking part in the selection process would clearly disentitle him from questioning the selection. It was stated that the petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name did not figure in the merit list Page 4 of 7 Downloaded on : Sat Oct 19 00:05:52 IST 2019 C/SCA/1152/2017 ORDER prepared by the Commission.
7.3 In Amlan Jyoti Borooah v. State of Assam [(2009) 3 SCC 227] it was reiterated that since the appellant had subjected himself to the allegedly faulty selection process without questioning it during the process, he could not question it later on. In Ramesh Chandra Shah v. Anil Joshi [(2013) 11 SCC 309], it was held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents. In Madras Institute of Development Studies v. K. Sivasubramaniyan [(2016) 1 SCC 454] the very proposition of law was summarised.
7.4 In recent decision in D. Saroj Kumari v. R. Helen Thilakom [2017 (11) SCALE 366], the Supreme Court stated the principle the very principle that once a person takes part in the process of selection and is not found fit for appointment, such person is barred from challenging the process of selection. In paragraphs 4 and 11 of the judgment, the Apex Court stated, "As far as the present case is concerned an advertisement was issued by Respondent No.6 inviting applications for the post of Music Teacher in Samuel LMS High School. Respondent No.1 did not raise any objection at that stage that the post could not be filled in by direct Page 5 of 7 Downloaded on : Sat Oct 19 00:05:52 IST 2019 C/SCA/1152/2017 ORDER recruitment and she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court. In view of this we need not go into the other issues raised." (Para 11) 7.5 Before the Division Bench of this Court in Gujarat State Road Transport Corporation v. Sisodiya Balbhadrasinh Dineshsinh being Letters Patent Appeal No.1487 of 2017 decided by judgment dated 13th October, 2017, the Gujarat State Road Transportation Corporation had issued advertisement for filling up 1503 posts of Conductor which process comprised of competitive examination of 100 marks by OMR System. 22600 candidates were called for examination on the basis of the merit marks. It was the case of the petitioner that after the examination results were published, large number of illegalities and irregularities were noticed by them. In response to the challenge by those petitioners, the very contention of impermissibility to raise challenge after participating in the examination and failing therein, was raised.
7.6 The Division Bench reiterated the proposition of law after relying on the decision in D. Saroj Kumari (supra) in these words, "Thus, from the aforesaid latest decision rendered by the Hon'ble Supreme Court, it can be said that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection. Thus, we are of the view that the petitioners once participated in Page 6 of 7 Downloaded on : Sat Oct 19 00:05:52 IST 2019 C/SCA/1152/2017 ORDER the OMR examinations without any objection having been failed to secure the minimum qualifying marks/failed to come within the zone of consideration, the petitioners are estopped from contending that GSRTC cannot conduct OMR examination in three different slots." (Para 21)
8. In view of the position of law emphatically emerging from the decisions of the Supreme Court as above that the candidate would divest himself of right to challenge the process of recruitment after participating therein, on the said ground above the present petition is liable to be dismissed. The petitioner herein first participated in the process of recruitment and when failed to get selected, challenged the process by filing this petition, which was not permissible in law.
9. For the foregoing reasons, the petition is liable to be dismissed and the same is hereby dismissed. Notice is discharged.
(N.V.ANJARIA, J) Bharat Page 7 of 7 Downloaded on : Sat Oct 19 00:05:52 IST 2019