Madhya Pradesh High Court
Archana Chouhan vs The State Of Madhya Pradesh on 23 September, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:60638
1 WP-12344-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 23rd OF SEPTEMBER, 2024
WRIT PETITION No. 12344 of 2022
ANTIM RAI SUNAHRE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Kabeer Paul - Advocate for applicant.
Shri Jubin Prasad - Panel Lawyer for State.
WITH
WRIT PETITION No. 25942 of 2022
ARCHANA CHOUHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Kabeer Paul - Advocate for applicant.
Shri Jubin Prasad - Panel Lawyer for State.
ORDER
Since the subject matter involved in both these writ petitions is similar, they are taken up for consideration together. For the sake of convenience, the facts as narrated in Writ Petition No.12344 of 2022 are considered herein.
2. The present petition has been filed assailing the order dated 06.05.2022 (Annexure P/1) passed by the respondent No.2 whereby his candidature has not been considered for appointment to the post of Paramedical Staff with a remark that qualification has been obtained from the private college.
Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 13-12-24 6:50:11 PMNEUTRAL CITATION NO. 2024:MPHC-JBP:60638 2 WP-12344-2022
3. The case of the petitioner is that he pursued a Diploma in Medical Laboratory Technology (MLT) from Subhishi Institute of Paramedical Science, Khargone, which is affiliated to Devi Ahilya Vishwavidyalaya (DAVV), Indore. He was working as a Lab Technician on contractual basis since 2014. The respondent issued an advertisement on 22.05.2021 seeking recruitment to various posts of Paramedical Staff. 20% of total 8 posts were reserved for contractual employees and 2 posts were exclusively for Scheduled Castes candidates like petitioner. The petitioner who belongs to Scheduled Caste category has submitted his candidature for 20% reserved posts of Lab Technician. An admit card was issued to him and the examination was to be conducted on 18.07.2021. The petitioner duly participated in the examination and has scored the highest marks i.e. 41 marks. He was called for documents verification along with other candidates. After due verification, an intimation dated 06.05.2022 was given to the petitioner wherein he was declared as 'not considered' and a remark has been put against his name that 'qualification passed from a private institution'. It is the case of the petitioner that there is no suppression of fact on the part of the petitioner. There was a specific condition mentioned in the application form, 'Do you have passed degree/diploma/certificate from Government Medical College'. He committed a bonafide mistake and inadvertently has put 'yes' while he pursued his education i.e. Diploma in Medical Laboratory Technician from private institution. The same was clearly mentioned that he has completed his Diploma in Medical Laboratory Technician from private institution, the same was mentioned clearly in the application form, but Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 13-12-24 6:50:11 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:60638 3 WP-12344-2022 inadvertently due to mistake he has marked 'yes' against the said question. It is contended that Condition No.3 of the advertisement dated 22.05.2021 itself required to be quashed as the same is arbitrary, discriminatory and unfair in the eyes of law as the same discriminates the candidates who have passed from a private institution to that from a Government college. It is argued that the condition imposed in the advertisement is contrary to the provision of Madhya Pradesh Swashashi Chiktisa Mahavidyala Chikitsakiya Seva Adarsh Niyam, 2018 (hereinafter referred to as 'the Rules of 2018'). The Additional Secretary has no competence to issue such a notification in derogation of the procedure prescribed under the Rules of 2018. It is argued that a step-motherly treatment has been given to the candidates like petitioner, who have pursued their education from private institution instead of Government institution and the same is not permissible and contrary to Articles 14, 19 and 21 of the Constitution of India, therefore, this petition has been filed.
4. The petitioner in Writ Petition No.25942 of 2022 has challenged the order/communication dated 31.10.2022 (Annexure P/1) passed by the respondent No.2 whereby her candidature has not been considered for appointment to the post of Paramedical Staff with a remark that qualification has been obtained from the private college. The present petitioner has also applied for the post of Lab Technician arising out of the same advertisement dated 22.05.2021. The impugned communication is arbitrary, unjust and unfair in the eyes of law as there is no suppression of any material information by the petitioner.
Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 13-12-24 6:50:11 PMNEUTRAL CITATION NO. 2024:MPHC-JBP:60638 4 WP-12344-2022
5. The reply has been filed by the authorities. It is contended that the respondent No.2 College has issued an advertisement for appointment on various post under the Paramedical Staff including two posts of Lab Technician under the Scheduled Caste category. In Condition No.3 of the advertisement there was a clear stipulation that preference will be given to the candidates who have completed their qualification from Government College. The petitioners were fully aware of the said condition. They accepted the same and did not raise any grievance at the relevant time. They participated in the recruitment process, appeared in the examination and when they were not selected, they filed this petition challenging the relevant conditions of the advertisement. The same is not permissible. Once the candidate has participated in the recruitment process, he is debarred from challenging the conditions, eligibility criteria, mode of recruitment etc. in pursuant to the said advertisement. The petitioners have given incorrect information in the application form. They have given a declaration that they have passed a degree/diploma/certificate from a Government College. The petitioners were called for document verification and during the scrutiny of the document it was observed that the petitioners have not completed their degree/diploma from a Government Institution, therefore, the said declaration made by the petitioners was found to be false. It is argued that Rule 2 of the Rules of 2018 which governs the case of the petitioner provide for minimum qualification i.e. 12th passed from physics/chemistry/biology, degree/diploma/ certificate in respective subject from recognized institution and live registration from Paramedical Council. It is argued that the State Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 13-12-24 6:50:11 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:60638 5 WP-12344-2022 Government was well within its jurisdiction to issue executive instructions in terms of the policy decision dated 07.11.2020 and has decided to give preference to the candidates who have passed Paramedical Courses from State Government Medical Colleges. It is contended that if the Executive Instructions does not supplement the rules then the authorities are having very jurisdiction to issue Executive Instructions. Apart from aforesaid, the petitioners now after participation in the entire process is debarred from challenging the said conditions of the advertisement. Eligible candidates, who were having qualifications from a Government institution, were duly considered by the authorities. Therefore, he has prayed for dismissal of the writ petitions.
6. Rejoinder has been filed by the petitioners. It is submitted that there is no rejection of candidature of the petitioners. The impugned orders reflect that the candidature of the petitioners were not considered owing to qualification pursued from a private institution. The additional reason assigned by the respondents that the incorrect declaration has been given by the petitioner is not a ground taken by the authorities while not considering their cases, therefore, the same cannot be taken note of by the authorities as the reasons could not be supplemented by way of an affidavit in view of the settled legal proposition of law. It is submitted that when the rules provide for a specific qualification then the same cannot be supplemented by way of executive instructions. It is argued that the executive instructions in the form of clarification cannot destroy the character of the main provisions provided under the Rules, therefore, the impugned order is unsustainable. It is Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 13-12-24 6:50:11 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:60638 6 WP-12344-2022 contended that the posts are still lying vacant and there was already an interim order granted by this Court vide order dated 09.06.2022 in WP No.12344 of 2022 to the effect that, 'till the next date of hearing one post of Scheduled Caste will be left vacant till the pendency of this petition'. The interim order was also granted on 16.11.2022 in WP No.25942 of 2022. Under these circumstances, it is prayed that the petition be allowed and the authorities be directed to consider the candidature of the petitioners for appointment to the post in question.
7. Heard the learned counsels for the parties and perused the record.
8. From the perusal of the record it is seen that advertisement was issued by the respondent No.2 seeking appointment to various post of Paramedical Staff in the Institution vide advertisement dated 22.05.2021. In pursuance to the said advertisement, the petitioners applied for the post of Lab Technician under the Scheduled Castes category. The qualifications required for the post of Lab Technician as provided in the advertisement are:-
"1. बायोलॉजी, केमे तथा फ ज स म 10+2 णाली म 12 वीं पर ा उ ीण।
2. मा यता ा सं था से संबंिधत वषय म ड ी/ ड लोमा/ माण प ।
3. म य दे श सह िच क सीय प रषद का जी वत पंजीयन।
4. लैब अटडट के पद पर 05 वष का कायानुभव"
9. Condition No.03 incorporated in the advertisement reads as under:-
"03. म. . शासन िच क सा िश ा वभाग के ाप . एफ 2- 20/2020/1/55/ भोपाल दनांक 17.11.2020 ारा निसग एवं पैरामे डकल पदो को भरने के संबंध म जार िनदश अनुसार पैरामे डकल संवग हे तु थमतः दे श के शासक य शासक य िच क सा महा व ालय म संचािलत पैरामे डकल कोसस से उ ीण उ मीदवार से पद पूित क जावेगी । उपरो या से पद भरने के उपरांत शेष र पदो के िलए अ य सं थाओं से उ ीण उ मीदवार का सीधी भत से भरे जाने वाले रा य तर य पदो के िलए 100 ब द ु रो टर का पालन एवं म. . वशासी "आदश सेवा भत िनयम, 2018"
मे िन हत ावधान के अंतगत कायवाह क जावेगी।"
Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 13-12-24 6:50:11 PMNEUTRAL CITATION NO. 2024:MPHC-JBP:60638 7 WP-12344-2022
10. The qualification required shows that the candidate should possess degree/diploma/certificate from a recognized institution. Condition No.3 of the advertisement shows that the preference will be granted to those candidates, who have obtained the qualification of Paramedical courses from a Government institution. Admittedly, the petitioners have obtained the diploma in Medical Laboratory Technician from private institutions i.e. Subhishi Institute of Paramedical Science, Khargone and Indore Institute of Medical Sciences, Indore which were affiliated to DAVV, Indore. Counsel appearing for the petitioners has brought on record the Rules of 2018. The rules does not provide for the qualification to be obtained from a Government institution. It is the case of the petitioners that bypassing the rules the executive instructions have been issued and Condition No.3 has been inserted in the advertisement, the same is not permissible. The fact remains that the petitioners without any grievance at the relevant time had participated in the selection process. They appeared in the examination knowing well that Condition No.3 was introduced in the advertisement. They themselves have chosen not to challenge such clause.
11. It is a settled proposition of law that once the candidate has chosen not to challenge the condition mentioned in the advertisement and being fully aware of the said condition has chosen to participate in the selection process and on being declared unsuccessful has chosen to challenge the said condition, he is debarred from subsequently challenging the said condition. In terms of the settled proposition of law by the Hon'ble Supreme Court in the case of Manish Kumar Shahi Vs. State of Bihar and other Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 13-12-24 6:50:11 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:60638 8 WP-12344-2022 reported in (2010) 12 SCC 576, wherein, it is held that once the candidate has participated in the examination knowing well about the terms and conditions and subsequent developments and on being declared as a disqualified candidate, he is debarred from challenging the process adopted by the authorities seeking appointment. The Hon'ble Supreme Court in the case of Anupal Singh vs. State of U.P., reported in (2020) 2 SCC 173 has held as under:-
"55. Having participated in the interview, the private respondents cannot challenge the Office Memorandum dated 12.10.2014 and the selection. On behalf of the appellants, it was contended that after the revised notification dated 12.10.2014, the private respondents participated in the interview without protest and only after the result was announced and finding that they were not selected, the private respondents chose to challenge the revised notification dated 12.10.2014 and the private respondents are estopped from challenging the selection process. It is a settled law that a person having consciously participated in the interview cannot turn around and challenge the selection process.
56. Observing that the result of the interview cannot be challenged by a candidate who has participated in the interview and has taken the chance to get selected at the said interview and ultimately, finds himself to be unsuccessful, in Madan Lal and Others v. State of J&K and Others (1995) 3 SCC 486, it was held as under:-
"9... The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. 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."
57. In K.H. Siraj v. High Court of Kerala and Others, (2006) 6 SCC 395, it was held as under:-
Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 13-12-24 6:50:11 PMNEUTRAL CITATION NO. 2024:MPHC-JBP:60638 9 WP-12344-2022 "73. The appellant-petitioners having participated in the interview in this background, it is not open to the appellant-
petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper."
58. In Union of India and Others v. S. Vinodh Kumar and Others (2007) 8 SCC 100, it was held as under:-
"19. In Chandra Prakash Tiwari v. Shakuntala Shukla (2002) 6 SCC 127, it was further observed:-
"34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not "palatable" to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process."
59. Same principle was reiterated in Sadananda Halo and Others v. Momtaz Ali Sheikh and Others (2008) 4 SCC 619 wherein, it was held as under:-
"59. It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgment in Union of India v. S. Vinodh Kumar (2007) 8 SCC 100 : (2007) 2 SCC (L&S) 792]....The Court also referred to the judgment in Om Prakash Shukla v. Akhilesh Kumar Shukla 1986 Supp SCC 285, where it has been held specifically that when a candidate appears in the examination without protest and subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise."
12. Rule 16 of the Rules of 2018 also gives a discretion to the Commissioner, Medical Education to take a final decision with respect to any clarification required to be sought. Meaning thereby the discretion was granted to the authorities to make the criteria for recruitment to the post in question.
13. Apart from the aforesaid, the condition No.3 incorporated in the advertisement does not speak of deviance from any Rules of 2018. It only Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 13-12-24 6:50:11 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:60638 10 WP-12344-2022 speaks of the fact that the candidates are permitted to participate in the examination those who have passed from a private institution but preference will be given to those candidates, who have obtained qualification from a Government institution. The same is always permissible. It is not a case were executive instructions are overriding the rules governing the services of the candidates. Under these circumstances, as the petitioners have passed the diploma from the private institution, their cases were rightly not considered by the authorities in terms of Condition No.3 of the advertisement.
14. The ground raised by the respondents that the petitioners have given incorrect declaration in the admission form. The argument is unsustainable for the reason that if the application form of the petitioners are seen although they have mentioned 'Yes' under Column, "Do you have passed degree/diploma/certificate from Government Medical College/Government College, but they have also disclosed the fact that the diploma in MLT was obtained in the year 2007-2008 from Subhishi Institute of Paramedical Science, Khargone and Indore Institute of Medical Sciences, Indore affiliated to DAVV, Indore. Therefore, it may be a bonafide mistake committed by the petitioners cannot be said to be suppression of fact. The reason for non consideration is only that they have obtained diploma from a private institution. The reason of suppression by the petitioners has not assigned in the impugned orders, therefore, the said ground is not available to the respondents as the reasons cannot be substituted by filing an affidavit has to be reflected from the order passed by the authorities in terms of the settled legal proposition of law in the case of Mohinder Singh Gill and another vs. Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 13-12-24 6:50:11 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:60638 11 WP-12344-2022 The Chief Election Commissioner, New Delhi and others reported in 1978 (1) SCC 405 wherein the Hon'ble Supreme Court has held as under:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Commissioner of Police, Bombay v. Gordhandas Bhanji (AIR 1952 SC 16):
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
15. Under these circumstances, no relief can be extended to the petitioners.
16. The writ petitions sans merit and is accordingly dismissed. No order as to costs.
(VISHAL MISHRA) JUDGE THK Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 13-12-24 6:50:11 PM