Rajasthan High Court - Jodhpur
Smt. Pankaj Sharma vs State (Education) & Ors on 25 November, 2013
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
S.B.CIVIL WRIT PETITION NO.6370/2012
Smt. Pankaj Sharma
Vs.
State of Rajasthan & Ors.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
S.B.CIVIL WRIT PETITION NO.6370/2012
Smt. Pankaj Sharma
Vs.
State of Rajasthan & Ors.
Date of Order : 25.11.2013
PRESENT
HON'BLE MR JUSTICE VIJAY BISHNOI
Mr Sandeep Shah, for the petitioner
Mr D.K.Joshi, for the respondents
BY THE COURT:
This writ petition has been preferred by the petitioner, while
claiming following reliefs: "A] That the order impugned dated 11.06.2012 [Annex.10] passed by the respondent no.3 deserves to be quashed and set aside. B] The petitioner may be permitted to discharge her duties under the SIERT on the post of Teacher Gr.II [Science] under the Handicapped Unified Education Project. C] That the respondents be directed to appoint the petitioner on the post of Teacher Gr.II [Science] w.e.f. 31.05.2012 i.e. the date when other persons were given appointment.
D] Any other appropriate order or direction which this Hon'ble Court deems fit and S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.
2 proper may kindly be passed in the favour of the petitioner."
E] cost of the writ petition may kindly be awarded to the petitioner.
Brief facts of the case are that the petitioner was appointed as Teacher Gr.II in the Education Department after having been selected under Rule 20 of the Rajasthan Education Subordinate Service Rules, 1971 (for short 'the Rules of 1971' hereinafter). Initially, the petitioner was posted at Government School, Jhadol vide order dated 09.02.1990 as Senior Teacher (Science), however, later on, the order dated 09.02.1990 was amended and the petitioner was posted at State Institute of Educational Research and Training Udaipur (for short 'SIERT' hereinafter), at the recommendation of Director, SIERT, vide order dated 24.02.1990.
The respondent No.2 Director (Primary Education), Government of Rajasthan, Bikaner issued an advertisement in the month of April, 2012 inviting applications from the eligible candidates of the Education Department to appear in S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.
3 walk-in-interview for filling up the vacant posts under the SIERT. The petitioner applied in pursuance of the said advertisement and appeared for her selection against two posts of Senior Teacher Gr.II (Science) under the Handicapped Unified Education Project. The result of walk-in-interview was declared on 31.05.2012, however, the petitioner has not been selected and the Director, SIERT has issued an order dated 11.06.2012, whereby the petitioner was relieved from SIERT with a direction to give her presence in the Office of Deputy Director, Secondary Education, Udaipur Division, Udaipur.
By way of this writ petition, the petitioner has challenged the order dated 11.06.2012 with other prayers as mentioned above.
The learned counsel for the petitioner has argued that the petitioner was working in SIERT in 1990 and she has been working as Senior Teacher Gr.II (Science) under the Handicapped Unified S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.
4 Education Project since 1997 and, therefore, she is entitled to be continue on the said post and the order dated 11.06.2012 deserves to be quashed and set aside.
It is further contended by counsel for the petitioner that there were two posts of Teacher Gr.II (Science) under the Handicapped Unified Education Project and against the said two posts, only one person Shri Bharat Kumar Chaubisa has been selected and one post is still lying vacant and on account of this fact also, she is entitled to be continue there and the action of the Director, SIERT of relieving her vide impugned order dated 11.06.2012 is illegal and liable to be quashed and set aside.
The learned learned counsel for the petitioner has further argued that the purpose of the walk-in-interview was only for verification of documents and no marks were allotted for the purpose of interview and as the petitioner is highly qualified, she is entitled to be selected against the S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.
5 post for which she has applied but the respondents have illegally not selected the petitioner without assigning any reason.
It has also been argued by the learned counsel for the petitioner that in the advertisement, there is no mention about the cut-off marks and the purpose of interview was simply for verification of documents, then the action of the respondents of separating the marks for the academic qualification and assessment of personality, working capacity, managerial skill etc. is illegal and the respondents cannot deprive the petitioner from being posted as Teacher Gr.III (Science) under the Handicapped Unified Education Project in the SIERT on the basis of separation/bifurcation of marks between the academic qualification and personal assessment.
The learned counsel for the petitioner has also tried to assail the selection of Shri Bharat Kumar Chaubisa as Senior Teacher Gr.II (Science) under the S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.
6 Handicapped Unified Education Project, while stating that he was not duly qualified for appointment on the said post and, therefore, the action of the respondents of selecting him is liable to be quashed and set aside.
The learned counsel for the respondents has contended that the SIERT is an institution, which provides quality training to the teachers and for the purpose of filling the vacancies in the SIERT, the State Government has decided to invite the applications from the eligible candidates and a committee has interviewed the candidates, who have applied against the vacant posts and the persons found suitable by the committee have been selected. It is further contended by the learned counsel for the respondents that when the petitioner has not been selected in the selection process, she cannot be continued with the SIERT and the Director, SIERT has rightly relieved the petitioner vide impugned order dated 11.06.2012.
The learned counsel for the S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.
7 respondents has invited the attention of the Court towards the walk-in-interview score sheet (Annexure-R/2) pertaining to the petitioner and has contended that the petitioner has scored only 22 marks out of 50 marks and, therefore, the selection committee has not found her suitable, whereas Shri Bharat Kumar Chaubisa has secured 35 marks out of 50 marks and, therefore, he was selected.
On the strength of above arguments, the learned counsel for the
respondents has argued that there is no illegality in the action of the respondent No.3 in relieving the petitioner from SIERT and, therefore, the writ petition filed by the petitioner is liable to be dismissed.
Heard the learned counsel for the petitioner as well as the counsel for the respondents and perused the material placed on record.
It is not in dispute that initially the petitioner was selected as Senior Teacher Gr-II (Science) in S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.
8 February, 1990 and was posted at Government School, Jhadol but the said order of her posting was later on amended on 24.02.1990 and the petitioner was posted at SIERT on the recommendation of the then Director of SIERT. The petitioner remained working at SIERT since her entry into the service till passing of the order dated 11.06.2012. In the writ petition as well as during the course of arguments, it is not stated on behalf of the petitioner that the petitioner has ever been selected against the post of Senior Teacher Gr.II (Science) under Handicapped Unified Education Project in the SIERT.
From the above facts, it is clear that the petitioner was never
selected on the post of Senior Teacher Gr.II (Science) in the SIERT under the Handicapped Unified Education Project at any point of time. She applied for the said post for the first time in April, 2012. In the selection process, the petitioner was interviewed and the selection committee has found the S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.
9 petitioner as not suitable for being appointed as Senior Teacher Gr.II (Science) under the Handicapped Unified Education Project.
From bare reading of the relief clauses of the writ petition, it is clear that the petitioner has not challenged the selection process. In the writ petition, she has claimed that since she has been working in the SIERT since 1990, she is entitled to be retained on the post where she is working. The petitioner has also not prayed for quashing of the selection of Shri Bharat Kumar Chaubisa and therefore, arguments of the learned counsel regarding illegality in selection procedure or in respect of selection of Shri Bharat Kumar Chaubisa are not tenable.
Otherwise also, the challenge of the petitioner to the action of the selection committee of separating the marks for interview as well as the personal assessment including personality, working capacity, managerial skill etc. is S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.
10 also not tenable as it is well settled that if a candidate takes a calculated chance and participated in the selection process, then only because the result of the selection is not palatable to him or her, he or she cannot turn around and subsequently contend that process of selection was not proper. Reference can be made from the decision of Division Bench of this Court in Emarata Ram Pooniya & Ors. vs. State of Rajasthan reported in 2005 (2) WLC (Raj.) 358, wherein it has been held as under:
"7. In G. Sarana v. Lucknow University reported in AIR 1976 SC 2428, (supra), the process of selection on the post of Professor of Anthropology was challenged.
The writ petition was dismissed by the High Court. The Apex Court refused to enter into the question of reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, did not before appearing or at the time of the interview raise even little finger against the constitution of the Selection Committee. The Court observed in para 15 as follows:
"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.11
not before appearing for the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal's case (AIR 1957 SC
425) (supra), wherein more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him.
It is further observed thus-
"It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point."
8. In Omprakash v. Akhilesh Kumar reported in AIR 1985 SC 1043 (supra), the selection of candidates for appointment to vacancies in Grade III of the Ministerial Staff in the subordinate Courts was challenged. The High Court was of the view that since within the judgeship of Kanpur, the examination had not been held in accordance with the syllabus prescribed by the Rules of 1947 as amended by 1969 amending Rules and all those who were successful and selected for appointment, had no right to be appointed. Accordingly, the High Court quashed the entire process of selection. The Apex Court while reversing the finding recorded by the High Court on merit observed that the High Court ought not to have granted S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.
12 relief to the petitioners therein as they had appeared for the examination without protest and filed the writ petition only after they realized that they would not succeed in the examination. The Court observed thus:
"23. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination."
9. In Madan Lal v. State of J & K reported in (1995) 3 SCC 486, the process of selection on the post of Munsifs in the State of Jammu & Kashmir was challenged on diverse grounds. The Apex Court before dealing with the contentions reminded that the petitioners as well as the contesting successful candidates were all found eligible in the light of the marks obtained in the written test, to be eligible to be called for oral interview. Up to that stage, there was no dispute between the parties. The petitioners therein also appeared at the oral interview conducted by the members concerned of the Commission, who interviewed the petitioners as well as the contesting respondents concerned. Considering this aspect, the Court observed-
"9...Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.13
have emerged successful as a result of their combined performance both at written test if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three leaned 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."
10. In Union of India v. N. Chandrasekharan reported in AIR 1998 SC 795, (supra) the Court observed that where the candidates were made aware of the procedure for promotion before they appeared for written test and before Departmental Promotion Committee, they cannot subsequently raise a plea that marks allotted to interview and ACR was unduly disproportionate or that the authorities cannot fix minimum marks to be secured at interview or in the ACR.
11. Thus it is now well settled that if a candidate takes a calculated chance and participates in the selection process, then only because the result of the selection is not palatable to him, he cannot turn around and subsequently contend that the process of selection was not proper.
It is also to be noticed that the respondent No.2 has advertised two S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.
14 vacancies of Senior Teacher Gr.II (Science) under the Handicapped Unified Education Project, which includes the post on which the petitioner is working and the petitioner has applied for selection on the said posts, then it is not open for the petitioner to say that the walk-in- interviews were conducted only to fill in the vacant posts and not the post on which the petitioner is working.
It is also not out of the subject to mention here that since her appointment in the year 1990 as Senior Teacher Gr.II, the petitioner is working in SIERT, Udaipur and this Court feels that this writ petition has been filed by her with an attempt to remain posted at Udaipur. The post of Senior Teacher Gr.II (Science), which the petitioner is holding, is a transferable post and she can be posted on any equivalent post in accordance with the provisions of law. The petitioner cannot claim as a matter of right to remain posted at SIERT, Udaipur despite her non-selection in pursuance of S.B.CIVIL WRIT PETITION NO.6370/2012 Smt. Pankaj Sharma Vs. State of Rajasthan & Ors.
15 the walk-in-interview in which she appeared with a clear understanding that if she is not selected, she has to leave the post, which she is holding.
In view of the above, this Court does not find any merit in this writ petition, hence, the same fails and is hereby dismissed.
[VIJAY BISHNOI],J.
m.asif/-