Himachal Pradesh High Court
Jitender Guleria vs Himachal Pradesh Vidhan Sabha And ... on 10 January, 2020
Bench: L. Narayana Swamy, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No. 103 of 2017.
Reserved on: 03.01.2020.
Decided on : 10.01.2020
________________________________________________________
.
Jitender Guleria .....Appellant.
Versus
Himachal Pradesh Vidhan Sabha and others .....Respondents
__________________________________________________________
Coram:
Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes.
For the appellant. : Mr. B.C. Negi, Senior Advocate
with Mr. Parvesh Negi, Advocate.
For the respondents. : Mr. Anshul Attri, Advocate, for
r respondents No. 1 & 3.
Mr. Ashok Sharma, Advocate
General with Mr. J.K. Verma, Mr.
Mr. Adarsh K. Sharma, Ms. Ritta
Goswami and Mr. Nand Lal
Thakur, Additional Advocates
General, for respondent
No.2/State.
Mr. Dushyant Dadwal, Advocate,
for respondent No.4.
Jyotsna Rewal Dua, J.(oral)
Writ petition challenging the selection and appointment of respondent No.4, to the post of Clerk in Himachal Pradesh Vidhan Sabha, having been dismissed, instant appeal has been preferred by the writ petitioner.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 13/01/2020 20:25:28 :::HCHP 22. Shorn of unnecessary details, the facts may be noticed:-
2(i) Respondent No.1 on 7.8.2015, issued an advertisement for filling one post of Clerk from Class-IV employees under Limited Direct .
Recruitment Scheme. Last date for submission of written consent to participate in the process was 17.8.2015.
2(ii) Petitioner and respondent No.4, submitted their written consents for participating in the Limited Direct Recruitment Scheme. In response to petitioner's application dated 13.08.2015, memo dated 2.9.2015 was issued by respondent No.1 informing him his roll number and that the competitive exam for the said one post of Clerk was scheduled on 14.9.2015 and those who would qualify the written exam, will have to clear a typing test scheduled at 11 A.M. on 15.09.2015. And further, those clearing the typing test were to be interviewed the same day at 3 P.M. 2(iii) Petitioner, respondent No.4 alongwith five others, participated in the selection process and appeared in the written test.
Petitioner secured 50 marks, whereas respondent No.4 secured 48 marks. Having qualified the written test, both the candidates alongwith others were called to appear in the typing test. Both the candidates qualified the typing test on 15.9.2015. Accordingly, they were interviewed the same day by a duly constituted selection committee by respondent No.1 in exercise of powers under Rule 7-A of the Himachal ::: Downloaded on - 13/01/2020 20:25:28 :::HCHP 3 Pradesh Vidhan Sabha Secretariat (Recruitment & Conditions of Service) Rules, 1974. Petitioner secured 4 marks in viva-voce out of total 8 marks, whereas respondent No.4 obtained 6.5 marks.
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Respondent No.4, in all, secured 54.5 marks against 54 marks obtained by the petitioner. Respondent No.4 was, therefore, recommended for appointment and was eventually appointed as Clerk.
2(iv) Aggrieved against the selection and appointment of respondent No.4 as Clerk, petitioner preferred the writ petition before this Court primarily on the ground that respondent No.1 could not have held interviews of the candidates for the post in question; the advertisement dated 7.8.2015 only prescribed a written examination for filling the post, therefore, the holding of interview and that also without fixing any criteria for awarding marks was beyond the purview of advertisement; marks obtained by candidates in the interview, therefore, could not be considered by the selection committee. Accordingly, direction was sought for appointing the petitioner to the post being more meritorious in the written examination. Learned Single Judge did not find favour with the contentions of the petitioner and held that having participated in the selection process including the interviews, the petitioner cannot be heard to complain that interviews could not have been part of the selection process. Accordingly, the writ petition was dismissed. Aggrieved, instant appeal has been preferred.
::: Downloaded on - 13/01/2020 20:25:28 :::HCHP 43 We have heard learned counsel for the parties and gone through the record.
Contentions:-
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3(i) Learned Senior Counsel, for the appellant has vehemently contended that:- the advertisement issued by respondent No.1 on 7.8.2015 did not prescribe holding of interviews for filling in the post of Clerk under the Limited Direct Recruitment Scheme; under the advertisement, only a written test could be conducted for filling the post in question; in the written test, petitioner had secured 50 marks as against 48 secured by respondent No.4, therefore, the petitioner should have been declared as selected and appointed to the post in question.
It was contended by the learned Senior Counsel that even after participating in the selection process and appearing in the typing test as well as interview for the post in question, it was open for the petitioner to contend that the selection process adopted by the respondents in as much as conducting interviews on 15.9.2015 was not in consonance with the advertisement. In making this submission, learned Senior Counsel for the appellant, relied upon the decision of Hon'ble Apex Court in Dr. (Major) Meeta Sahai vs. State of Bihar & Ors. in Civil Appeal No. 9482 of 2019. Relevant paras of this judgment are reproduced hereunder:-
::: Downloaded on - 13/01/2020 20:25:28 :::HCHP 5"16. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure in selection. The counsel for .
respondents relied upon a catena of decisions of this Court to substantiate his objection.
17. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgements including Manish Kumar Shahi v. State of Bihar, observing as follows:
"16. 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 appellant is not rentitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The appellant 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 appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in hope of getting a second chance.
18. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned ::: Downloaded on - 13/01/2020 20:25:28 :::HCHP 6 merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process."
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3(ii) Per contra, learned counsels for the respondents supported the judgment passed by learned Single Judge. It was also urged that instructions issued by the State, as applicable at the relevant time and as adopted by respondent No.1 provided holding of interviews for the post.
It was only on 17.4.2017 that State Government issued instructions for dispensing interviews for Class III & IV posts. Further, it was pointed that action of respondents is in accordance with provisions of Regulation No.7 of 'H.P. Vidhan Sabha Secretariat Regulations 2002'. It was also submitted that petitioner has since been promoted as clerk on regular basis w.e.f. 16.08.2018.
4. Observations:-
4(i) There is no dispute about factual position that the notice/memo dated 2.9.2015 was endorsed to the petitioner informing him his roll number and that: (a) written examination for the post in question would be held on 14.9.2015; (b) those who would qualify the written examination would have to qualify the typing test scheduled on 15.9.2015 at 11A.M.; (c) those who would qualify the typing test on ::: Downloaded on - 13/01/2020 20:25:28 :::HCHP 7 15.9.2015 would have to appear in the interview scheduled on that very day, i.e. 15.9.2015 at 3 o'clock.
4(ii) Petitioner accepted the stipulations contained in the notice .
dated 2.9.2015 and accordingly appeared in the written examination on 14.9.2015 without any demur or protest. After qualifying the same, he appeared in the typing test on 15.9.2015 at 11 A.M. and after qualifying the typing test, appeared in the interview the same day. In case, the petitioner felt aggrieved against holding of interviews for the post, it was open for him to challenge the stipulation of holding of interviews in the notice dated 2.9.2015. Having full knowledge of holding of interview for the post in question on 2.9.2015, having appeared in the typing test and interview on 15.9.2015, having failed in the final selection, it is not open for the petitioner to contend that respondent No.1 could not have conducted the interview.
4(iii) It is well settled that a candidate after participating in the selection process cannot assail the same if he is unsuccessful.
Permitting him to challenge the selection process after participation would amount to affording him a second chance. Hon'ble Apex Court in 2019 (3) Scale 527 titled as Union of India & Ors. vs. C. Girija & Ors., held as under:-
"17. There is one more aspect of the matter, which need to be noted. The applicant was well aware that under 30% LDCE quota, out of 05 vacancies, 04 are unreserved and 01 ::: Downloaded on - 13/01/2020 20:25:28 :::HCHP 8 is reserved, which was circulated by notification dated 14.10.1999. She applied against the said bifurcated vacancies and was interviewed on 08.01.2001, panel of which was declared on 09.01.2001 and promotion was made on the same day. She having participated in the selection for promotion under 30% LDCE quota and the bifurcation of the .
vacancies being part of the process of selection, it was not open for her to challenge the bifurcation of vacancies into general and reserved after taking a chance to get selected. In this context, reference is made to judgment of this Court in Ashok Kumar and Another Vs. State of Bihar and Others, (2017) 4 SCC 357. This Court after referring to several earlier judgments have laid down following in Paragraph Nos. 13 to 18:-
"13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127, this Court laid down the principle that when a candidate appears at an examination r without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100, this Court held that: (SCC p.
107, para 18) "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil, (1991) 3 SCC 368 and Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724.)"
14. The same view was reiterated in Amlan Jyoti Borooah, (2009) 3 SCC 227, wherein it was held to be well settled that the candidates who have taken part in a selection process knowing fully well the ::: Downloaded on - 13/01/2020 20:25:28 :::HCHP 9 procedure laid down therein are not entitled to question it upon being declared to be unsuccessful.
15. In Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576, the same principle was reiterated in the following observations: (SCC p.
.
584, para 16) "16. 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 rof 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. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K, (1995) 3 SCC 486, Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522, Dhananjay Malik v.
State of Uttaranchal, (2008) 4 SCC 171, Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 327 and K.A. Nagamani v.
Indian Airlines, (2009) 5 SCC 515."
16. In Vijendra Kumar Verma v. Public Service Commission, (2011) 1 SCC 150, candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The ::: Downloaded on - 13/01/2020 20:25:28 :::HCHP 10 appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible.
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17. In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309, candidates who were competing for the post of Physiotherapist in the State of Uttarakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted.
Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that: (SCC p. 318, para 18) "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."
"18. In Chandigarh Admn. v. Jasmine Kaur, (2014) 10 SCC 521, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non- selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493, this Court held that: (SCC p. 500, para 17) "17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of ::: Downloaded on - 13/01/2020 20:25:28 :::HCHP 11 interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time.
This, it appears that only when the appellants .
found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted." This principle has been reiterated in a recent judgment in Madras Institute of Development Studies v. K. Sivasubramaniyan, (2016) 1 SCC 454".
18. We, thus, due to the above both the reasons, are of the view that the Tribunal and the High Court ought not to have entertained the stale claim of the applicant."
4(iv) To the above settled principle of service jurisprudence an exception has been carved out by Hon'ble Apex Court as reported in Civil Appeal No. 9482 of 2019, titled as Dr. (Major)Meeta Sahai vs. State of Bihar & Ors., wherein, Hon'ble Apex Court has held that when a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, then mere fact of participation will not prevent the candidate from challenging the selection process after participation. In Meeta Sahai's case (supra), the selection process was in derogation to the constitutional scheme, wherein, the services rendered by the petitioner therein as Doctor in Army Hospital was not ::: Downloaded on - 13/01/2020 20:25:28 :::HCHP 12 counted towards the 'work experience' required for the post of General Medical Officer in State of Bihar. Her claim after participation in the selection process was only confined to the interpretation of the .
expression 'work experience'. It is under these circumstances, the Hon'ble Apex Court turned down the preliminary objection to the maintainability of the appeal holding that the challenge involves statutory interpretation and, therefore, was held to be within the domain of judicial review. This is not the situation in the case in hand.
In the instant case, petitioner was very well aware on 2.9.2015 that he is required to clear written examination where after he is also required to clear the typing test and thereafter, he has to appear in the interview before the duly constituted selection committee. Having participated in such selection process and remaining unsuccessful in it, petitioner is now estopped from challenging the same on the ground that interviews could not have been part of selection process or that selection criteria was not valid. It has been noticed by the learned Single Judge as has also been contended before us that the petitioner has appeared for the post in question in past also and has participated in the similar selection process which included the interviews, without any demur or protest.
No other point was urged before us.
::: Downloaded on - 13/01/2020 20:25:28 :::HCHP 135. In view of the above discussion, the judgment passed by the learned Single Judge suffers from no infirmity, the present appeal being devoid of any merit is dismissed as such.
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Pending application(s), if any, also stand disposed of.
(L. Narayana Swamy) Chief Justice (Jyotsna Rewal Dua) Judge 10.01.2020 (reena) ::: Downloaded on - 13/01/2020 20:25:28 :::HCHP 14 .
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