Central Administrative Tribunal - Allahabad
Sri Santosh Kumar Aged About 44 Years vs Union Of India on 31 March, 2011
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD
(THIS THE 31st DAY OF March 2011)
Original Application No. 128 of 2005
(U/S 19, Administrative Tribunal Act, 1985)
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr. S. N. Shukla, Member (A)
Sri Santosh Kumar aged about 44 years, S/o Late Sri Ram Pyare Lal, R/o C-20/1-79, Ramakant Nagar, Varanasi.
.. Applicant
By Adv. : Shri Ashish Srivastava
V E R S U S
1. Union of India, through Ministry of Railways, Rail Bhawan, New Delhi 110001.
2. General Manager (Personnel) Diesel Locomotive Works, Varanasi.
3. Chief Personnel Officer, Diesel Locomotive Works, Varanasi.
4. Dy. Chief Personnel officer, Diesel Locomotive Works, Varanasi.
5. Manish Kumar Singh, Law Assistant in the Office of General manager (Personnel) Diesel Locomotive Works, Varanasi.
.... Respondents
By Adv. : Shri Anil Kumar
O R D E R
(Delivered by Honble Dr. K.B.S. Rajan, Member-Judicial)
1. An examination for selection to the post of Law Assistant in the grade of Rs 6,500 10,500 was held on 30-07-2004 and the applicant as well as the private respondents were the aspirants. While the private respondent became successful, the applicant lost the race and has challenged the mode of selection on various grounds especially the following:-
(a) The question paper as per the regulations should be in bi-lingual whereas the same was in English only.
(b) While in the selection board, there should be a member from the concerned Department, there was none from the law Department.
(c) Similarly another officer of the concerned department should be nominated to evaluate the answer books ensuring that the answer books are invariably evaluated by the member-officer belonging to the department for which the selection is held.
(d) Undue delay in evaluation of the answer sheets.
(e) Objective types of questions should have formed sizeable part of the question paper, whereas in the instant case, the same was not so.
2. Both the Private respondent as well as official respondents contested the O.A. And the applicant had filed the rejoinder to the counter affidavits.
3. With the consent of the parties written arguments were permitted and the order was reserved. Promptly all the parties filed their written submissions.
4. The applicant in his written submission raised the abovementioned issues with additional argument that the Apex Courts decision in the case of Narbada Prasad vs Chhaganlal and others AIR 1969 SC 395 wherein it has been held, It is a well understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or not at all. Other modes of compliance are excluded.
5. Counsel for the official respondents in their written submission stated as under:-
(a) Complete silence observed by the applicant till the results were declared and he not being selected. His first representation against the selection process was only on 20-10-2004, after the declaration of result.
(b) Law is clear that one cannot be permitted to challenge the selection after one has taken a chance and found oneself not successful in the selection. In this regard, the counsel referred to the following decisions:-
(i) Union of India vs N. Chandra Shekharan and others (1998) 3 SCC 694 (para 13).
(ii) University of Cochin vs N.s. Kanjoonjamma & Ors (1997) 4 SCC 426 (Para 4)
(iii) Rakesh Kumar Gupta vs High court of Judicature at Allahabad Writ A No. 51677 of 2009
(iv) Guru Dutt Shukla vs State of U.P. & Ors (1999) 2 UPLBEC 1270 para 12.
(c) The applicant had questioned the question paper in one language and not bi-lingual. The top of the question paper provided that if any one wants the question paper in another language, Translator would be provided.
(d) There is no separate cadre of Law Department in the Indian Railways and the Legal cell had, at the material point of time, was functioning under the Personnel Department, and Shri Y.K. Jaiswal was the Deput C.P.O. Personnel Department.
(e) There is no unreasonable delay in declaration of the result and whatever marginal delay had occurred, the same was due to certain administrative compulsions.
6. The private respondent in his written submission raised the abovementioned contentions and supplemented his contensions with the following decisions
(a) AIR 1986 Sc 1043 Om Prakash vs Akhilesh Kumar
(b) AIR 1991 SC 2248, Sardara singh vs State of Punjab
(c) (2008) 4 SCC 171 Dhananjay Malik vs St. of Uttranchal
7. The above written submissions and the pleadings were considered. Though the applicant stated that he was successful in the written examination (vide list of dates), according to the official respondents, vide para 23 of the counter, to which the applicant had stated that but for the irregularities, he would have been through! And the applicant to the best of his knowledge had faired well in the written test.
8. Law on the subject matter is clear. In Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285 , the Apex Court in no uncertain terms held as under:-
24. 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.
Again, in Union of India v. N. Chandrasekharan, (1998) 3 SCC 694 , the Apex Court has held as under:-
It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in theassessment on confidential report
9. The decision in Om Prakash Shukla (supra) had been referred to again in the case of Chandra Prakash Tiwari v. Shakuntala Shukla,(2002) 6 SCC 127 and the Apex Court has held:-
In Om Prakash Shukla v. Akhilesh Kumar Shukla (1986)Supp SCC 285 a three-Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise.
10. The Apex Court in the case K.H. Siraj v. High Court of Kerala,(2006) 6 SCC 395, held as under:-
In Om Prakash Shukla v. Akhilesh Kumar Shukla (1986) Supp 285 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
11. In Dhananjay Malik v. State of Uttaranchal,(2008) 4 SCC 171 the impermissibility of a person to challenge the selection when he had participated therein has been specified. The Court has held in that case as under:-
8. In Madan Lal v. State of J&K this Court pointed out that when the petitioners appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, 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 writ petitions. This Court further pointed out 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.
9. In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.
12. Similarly in the case of Sadananda Halo v. Momtaz Ali Sheikh,(2008) 4 SCC 619, the Apex Court has held as under:
This is apart from the fact that the unsuccessful candidates, after having taken part in the interview process could not turn back and call names to the system.
In State of Orissa & Anr v. Rajkishore Nanda & Ors. Civil Appeal No. 2808 of 2008, decided on June 3, 2010 It is the settled legal proposition that no relief can be granted to the candidate if he approaches the Court after expiry of the Select List. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the Court at a belated stage. (Vide J.Ashok Kumar Vs. State of Andhra Pradesh & Ors., (1996) 3 SCC 225; State of Bihar & Ors. Vs. Md. Kalimuddin & Ors., AIR 1996 SC 1145; State of U.P. & Ors. Vs. Harish Chandra & Ors., AIR 1996 SC 2173; Sushma Suri Vs. Government of National Capital Territory of Delhi & Anr., (1999) 1 SCC 330; State of U.P. & Ors. Vs. Ram Swarup Saroj, (2000) 3 SCC 699; K. Thulaseedharan Vs. Kerala State Public Service Commission, Trivendrum & Ors., (2007) 6 SCC 190; Deepa Keyes -Vs.- Kerala State Electricity Board & Anr., (2007) 6 SCC 194; and Subha B. Nair & Ors. (supra).
In Raj Kumar v. Shakti Raj, (1997) 9 SCC 527, it has been held:
The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case.
13. The decision in the case of Narbada Prasad (supra) would have come to the rescue of the applicant to some extent, had he agitated against the so called irregularity in the selection process immediately after the examination was over. In fact, most of the points highlighted by the applicants were such that these have been known to the applicant immediately after the examination. The applicant comfortably waited to know his fortune and once he had found himself not selected, he had challenged the selection, which practice has been condemned by the Apex court in various cases cited above.
14. In view of the above, we do not find any merit in the O.A. The O.A is therefore, dismissed. Under the circumstances, there shall be no orders as to costs.
(S.N. Shukla) (Dr. K.B.S. Rajan)
Member-A Member-J
Sushil
??
??
??
??
Page 8 of 8