Allahabad High Court
Chandra Prakash vs State Of U.P. Through Prin. Secy. ... on 26 February, 2020
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 26 Case :- MISC. SINGLE No. - 3277 of 2015 Petitioner :- Chandra Prakash Respondent :- State Of U.P. Through Prin. Secy. Personnel Deptt. Lko. & An Counsel for Petitioner :- Santosh Kumar Srivastava,Kamlesh Kumar Singh,Nitin Kumar Mishra Counsel for Respondent :- C.S.C.,Ashok Shukla Hon'ble Alok Mathur,J.
1. Heard Sri Nitin Kumar Mishra, learned counsel for the petitioner as well as learned Standing Counsel on behalf of respondent no. 1 and Sri Ashok Shukla, learned counsel for respondent no. 2.
2. It has been submitted by the learned counsel for the petitioner that in pursuance to the advertisement published on 16.09.2014, for the "Rajasva Nirikshak Pariksha, 2014" (hereinafter referred to as "the Examination, 2014"), the petitioner submitted his on-line application form and subsequent to the issuance of admit card, appeared in the written examination held on 25.01.2015. The result of the examination was declared on 02.05.2015 and the petitioner was unsuccessful. It has further been submitted that on perusal of the instructions issued with regard to the said examination provided that all the questions would carry equal marks, but contrary to the said instruction, in the question paper certain questions carried higher marks than the other and therefore, the entire selection needs to be set aside as the same was not conducted as per the instructions.
3. It has further been submitted on behalf of petitioner that he came to know about the said infirmity when he perused the question paper, but has also stated that he proceeded to appear and answer the question paper accordingly.
4. The petitioner prays for a direction to the respondents to re-evaluate the answer sheet of the Examination, 2014 and award him marks according to the advertisement/syllabus of the Examination, 2014.
5. Learned counsel for the respondents, at the very outset have raised preliminary objection regarding maintainability of the writ petition. It has been submitted that the petitioner has duly participated in the Examination, 2014 after having full knowledge of the instructions and even during the examination he was aware of the distribution of marks, and now he cannot turn around and challenge the entire selection process. Various judgments of the Apex Court as well as this Court are to this effect and therefore, the writ petition is liable to be dismissed as not maintainable.
6. Learned counsel for the petitioner in support of his contentions has placed reliance on the judgment of the Apex Court in the case of Ran Vijay Singh and Others Vs. State of Uttar Pradesh and Others, (2018) 2 SCC 357. He submits that in the aforesaid case before the Apex Court also there was no provision for re-evaluation, but the High Court proceeded to re-evaluate the marks and that too after eight years.
7. In paragraphs 16 and 17 of Ran Vijay Singh (supra), the Apex Court, in unequivocal terms has observed that where there is no provision for re-evaluation, the Courts should be slow in interfering in such matters. The Court has further observed that complete hands on or no interference by the Court, unless there is error and in exceptional situation and that too for a very limited extent. The Court in para 30, has held as under :
"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are :
30.1. If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;
30.2. If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rate or exceptional cases that a material error has been committed; (reliance placed by the Court) 30.3. The court should not at all re-evaluate or scrutinise the answer sheets of a candidate-it has not expertise in the matter and academic matters are best left to academics;
30.4. The court should presume the correctness of the key answers and proceed on that assumption; and 30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate."
8. Admittedly in the present case also there is no provision for re-evaluation, and the petitioner could not demonstrate any exceptional situation necessitating interference of this Court in exercise of powers under Article 226 of the Constitution of India.
9. The second reason for which this petition deserves to be dismissed is that the petitioner was in full knowledge of the instructions as well as mark distribution in the question paper but still chose to appear in the examination with the said knowledge and therefore this Court is constrained to observe that he cannot now turn around and challenge the entire examination on the ground that it was in conflict with the instructions issued prior to the examination. The law on this point has been elaborated by the Hon'ble Supreme Court in the case of Ashok Kumar v. State of Bihar, (2017) 4 SCC 357, wherein the Court observed as under :
"12. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate.
13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla [Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 : 2002 SCC (L&S) 830] , this Court laid down the principle that when a candidate appears at an examination 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 [Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100 : (2007) 2 SCC (L&S) 792] , 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 [Munindra Kumar v. Rajiv Govil, (1991) 3 SCC 368 : 1991 SCC (L&S) 1052] and Rashmi Mishra v. M.P. Public Service Commission [Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724 : (2007) 2 SCC (L&S) 345] .)"
14. The same view was reiterated in Amlan Jyoti Borooah [Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227 : (2009) 1 SCC (L&S) 627] wherein it was held to be well settled that the candidates who have taken part in a selection process knowing fully well the 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 [Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256] , the same principle was reiterated in the following observations: (SCC p. 584, para 16) "16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 4 SLR 272] 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. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K [Madan Lal v. State of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712] , Marripati Nagaraja v. State of A.P. [Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68] , Dhananjay Malik v. State of Uttaranchal [Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005 : (2008) 3 PLJR 271] , Amlan Jyoti Borooah v. State of Assam [Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227 : (2009) 1 SCC (L&S) 627] and K.A. Nagamani v. Indian Airlines [K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57] ."
16. In Vijendra Kumar Verma v. Public Service Commission [Vijendra Kumar Verma v. Public Service Commission, (2011) 1 SCC 150 : (2011) 1 SCC (L&S) 21] , candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The 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.
17. In Ramesh Chandra Shah v. Anil Joshi [Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309 : (2011) 3 SCC (L&S) 129] , 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 [Chandigarh Admn. v. Jasmine Kaur, (2014) 10 SCC 521 : 6 SCEC 745] , 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 [Pradeep Kumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493 : (2015) 3 SCC (L&S) 274] , 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 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 [Madras Institute of Development Studies v. K. Sivasubramaniyan, (2016) 1 SCC 454 : (2016) 1 SCC (L&S) 164 : 7 SCEC 462] .
19. In the present case, regard must be had to the fact that the appellants were clearly on notice, when the fresh selection process took place that written examination would carry ninety marks and the interview, ten marks. The appellants participated in the selection process. Moreover, two other considerations weigh in balance. The High Court noted in the impugned judgment [Anurag Verma v. State of Bihar, 2011 SCC OnLine Pat 1289.] that the interpretation of Rule 6 was not free from vagueness. There was, in other words, no glaring or patent illegality in the process adopted by the High Court. There was an element of vagueness about whether Rule 6 which dealt with promotion merely incorporated the requirement of an examination provided in Rule 5 for direct recruitment to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the appellants by the 90 : 10 allocation."
10. In light of the law laid down by the Hon'ble Supreme Court in Ran Vijay Singh (supra) and Ashok Kumar (Supra), the petitioner cannot be permitted to challenge the selection, after declaration of result where he was unsuccessful. He is deemed to have waived his right to challenge the selection process, having failed to challenge the same immediately after coming to know about the deficiency in the process. He waited for the outcome of the result, and after being declared unsuccessful chose to approach this Court. Though in the prayer no prayer has been made to challenge the selection, but detained averments have been made in this regard in the petition. He has therefore disentitled himself for any relief under Article 226 of the Constitution of India.
11. It has been submitted by the respondents in their counter affidavit that evaluation was made as per advertisement issued by the Commission and the examination was conducted in accordance to the various guidelines and regulations existing in this regard.
12. In the light of above, this Court does not find any merit in the petition preferred by the petitioner .
13. The writ petition lacks merit. Dismissed.
Order Date :- 26.2.2020 A. Verma (Alok Mathur, J.)