Central Administrative Tribunal - Delhi
Dr Chandan Kumar Pal And Another vs Union Public Service Commission (Upsc) on 22 February, 2022
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Item No. 10 O.A. No. 410/2022
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 410/2022
M.A. No. 460/2022
This the 22nd day of February, 2022
Hon'ble Ms. Manjula Das, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
1. Dr. Chandan Kumar Pal
S/o Shri Yogendra Pal
R/o Flat No. 66, 2nd Floor,
Gautam Nagar, Near Baba Gurudwara,
New Delhi-110049
2. Dr. Abhishek Uday
S/o Shri Uday Praksh
R/o Flat No. 100D,
DDA Flats, Gulabi Bagh,
Near Shashtri Nagar Metro Station,
New Delhi-110007
...Applicants
(By Advocate: Mr. Rajesh Ranjan)
Versus
1. Union Public Service Commission
Through its Chairman
Dholpur House
Shahjahan Road, New Delhi-110069
2. Ministry of Health and Family Welfare
Through its Secretary
Nirman Bhavan, New Delhi-110001
...Respondents
(By Advocates: Mr. R.V. Sinha and Ms. Kiran Ahlawat)
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Item No. 10 O.A. No. 410/2022
ORDER (ORAL)
Hon'ble Ms. Manjula Das, Chairman MA No. 460/2022 filed by the applicants for joining in a single application is allowed for the reasons mentioned therein. OA No. 410/2022
2. This OA has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 praying for the following reliefs:
"(i) quash the final select list dated 02.02.2022 in advertisement No. 12/2020 vacancy No. 20101205110 prepared and recommended by the Union Public Service Commission, New Delhi.
(ii) Pass such other relief or reliefs as this Hon'ble Court deems just and proper in the facts and circumstances of the case may also be granted."
3. The respondents, i.e., Union Public Service Commission (UPSC) issued the advertisement No. 12/2020 inviting applications for selection/appointment on the post of Special Grade -III Assistant Professor (Radio Diagnosis) for the Ministry of Health and Family Welfare. The eligible candidates had to be selected by interview only. The applicants applied for the said post under the OBC category. The interview was conducted category wise for the candidates belonging to SC and ST on 18.01.2022, and 3 Item No. 10 O.A. No. 410/2022 for General Category candidates on 20.01.2022 and 21.01.2022. The applicants having possessed the required eligibility qualifications, were called for the interview. UPSC published the final result on 02.02.2022 whereby the applicants were not recommended for recruitment to the post in question.
4. Mr. Rajesh Ranjan, learned counsel for the applicants submits that the impugned final select list dated 02.02.2022 is biased as the respondents have adopted an illegal recruitment process and the selections were made on the basis of interview only, which was not followed by any written test. However, minimum cut off marks were fixed in the said interview, which is stated to be unreasonable and illegal.
5. On the other hand, Mr. R. V. Sinha, learned counsel for the respondents straightaway drew our attention to the Advertisement No. 12/2020 whereunder in Note-III it was clearly provided that "(i) The category-wise minimum level of suitability in interviews, irrespective of whether the selection is made only by interview or by Recuitment Test followed by interview, will be UR/EWS-50 marks, OBC-45 marks, SC/ST/PH-40 marks, out of the total marks of interview being 100; and (ii) In cases where selection is made by Recruitment Test (RT) followed by interview, the candidate will have to achieve minimum level of suitability in their respective category at interview stage." In view of that, he submitted that the respondents vide 4 Item No. 10 O.A. No. 410/2022 advertisement No. 12/2020 have stipulated the aforesaid condition in the advertisement before holding the exam. He also submitted that the said condition was not an afterthought. He, therefore, prays for dismissal of the OA.
6. We heard Mr. Rajesh Ranjan, learned counsel for the applicants and Mr. R. V. Sinha and Ms. Kiran Ahlawat, learned counsel for the respondents, through video conferencing.
7. It is not in dispute that the applicants, in response to the aforesaid advertisement, applied and participated in the selection process. However, they have challenged the said selection only when they were not declared successful. Once the applicants participated in the selection process without any demur, they cannot challenge the same subsequently if they were not declared successful. It is also well settled proposition of law that an unsuccessful candidate cannot challenge the advertisement and procedure of selection after participating in the same. In this regard, Hon'ble Supreme Court in the case of Ramesh Chandra Shah vs. Anil Joshi, (2013) 11 SCC 309, has held as under:
"18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.
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21. In Om Prakash Shukla v. Akhilesh Kumar Shukla (1986) Supp. SCC 285, a three-Judge Bench ruled that when the petitioner appeared in the examination without protest, he was not entitled to challenge the result of the examination. The same view was reiterated 5 Item No. 10 O.A. No. 410/2022 in Madan Lal v. State of J & K(1995) 3 SCC 486 in the following words:
"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...."
22. In Manish Kumar Shahi v. State of Bihar (2010) 12 SCC 576, this Court reiterated the principle laid down in the earlier judgments and observed:
"We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
8. In view of above, we find that there is no merit in the OA. It is accordingly dismissed. No costs.
(Mohd. Jamshed) (Manjula Das)
Member (A) Chairman
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