Rajasthan High Court - Jaipur
Anjana Kumari Meena vs C M D J Metro And Ors (2023/Rjjp/006658) on 27 April, 2023
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
[2023/RJJP/006658]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 8382/2013
Anjana Kumari Meena Wife Of Shri Mukesh Meena, aged 30
years, R/o F-30, Nandpuri Colony, Swej Farm, 22 Godown,
Jaipur, Rajasthan.
----Petitioner
Versus
1. Chief Managing Director, Jaipur Metro Rail Corporation,
Khanij Bhawan, Tilak Marg, C-Scheme, Jaipur
2. Directors, Corporate Affairs, Jaipur Metro Rail
Corporation, Khanij Bhawan, Tilak Marg, C-Scheme,
Jaipur
3. State Of Rajasthan through Chief Secretary, Secretariat,
Jaipur
----Respondents
For Petitioner(s) : Mr. Sanchit Tamra
Mr. Mukesh Kumar Meena
For Respondent(s) : Mr. S.S. Raghav, AAG, with
Mr. Aniruddh Singh Raghav
Mr. Mananjay Singh Rathore
Mr. Sandeep Pathak
Ms. Jaya Rathore
Ms. Vartika Mehra
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Reserved on : 10/04/2023
Pronounced on : 27/04/2023
Reportable
Judgment
(1) The petitioner has instituted the instant writ petition
with the following prayer :-
"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to accept and to allow this writ petition filed by the humble petitioner and ; (D.B. SAW/451/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:07:27 PM) [2023/RJJP/006658] (2 of 10) [CW-8382/2013]
(i) the entire selection and appointment on the post of Customer Relation Assistant pursuant to the advertisement which was published in Rajasthan Patrika and online on 15.10.2012 may kindly be quashed and set aside by declaring the same as illegal, arbitrary and ultra vires to secure the end of justice;
(ii) the respondents may be directed to appointment the petitioner on the post of Customer Relation Assistant in the JMRC as per reservation quota prescribed by Government of Rajasthan with all consequential benefits or in alternative it is further prayed that the advertisement published by the JMRC should be quashed and set aside as it is contrary to the reservation policy of the State Government;
(iii) Any other order which this Hon'ble Court deems just and proper in the facts and circumstances of the case may also be passed in favour of the petitioner;"
(2) Briefly, the essential material facts necessary for appreciation of the controversy raised in the instant petition needs to be first noticed.
(3) In pursuance of the advertisement issued by the Jaipur Metro Rail Corporation Ltd. (for short "JMRC"), the petitioner participated in the process of selection for appointment on the post of Customer Relations Assistant under the category of Scheduled Tribe Female, and she was kept in reserve waiting list at serial no. 3.
(4) Counsel for the petitioner submits that in all fifty posts were advertised but for Scheduled Tribes (for short "ST") candidates only five posts were reserved. Counsel submits that as per reservation policy, 12% posts are required to be reserved for ST candidates, which comes to six posts. Counsel submits that one more post is required to be provided for ST candidates that too for female, as 30% reservation is there for Females in each category. If one more post is given to ST category, then there (D.B. SAW/451/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:07:27 PM) [2023/RJJP/006658] (3 of 10) [CW-8382/2013] would be two posts for ST female candidates by applying the principle of rounding of. Counsel submits that in exercise of the powers conferred by Sections 4 and 6 of the Rajasthan Scheduled Castes, Scheduled Tribes, Backward Classes, Special Backward Classes and Economically Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Act 2008, the State Government has framed Rajasthan Reservation of Appointments and Posts in Services under the State (Roster) Rules, 2009 (for short "the Rules of 2009"), by issuing Notification dated 18.9.2009. Counsel submits that model roster of the reservation with reference to the posts for direct recruitment has been attached as Schedule-I as per Rule 4 of the Rules of 2009.
Counsel submits that as per Schedule-I of the Rules of 2009, for fifty posts of direct recruitment, there would be six posts out of fifty posts for ST candidates as per the 12% reservation policy. Counsel submits that instead of reserving six posts for ST candidates, only five posts have been reserved in violation of the Notification dated 18.9.2009. Counsel submits that under these circumstances, either the entire process be quashed or the respondents be directed to provide one post for ST female candidates and give appointment to the petitioner on this post with consequential benefits.
(5) Per contra, the counsel for respondents opposed the arguments raised by the counsel for petitioner and submitted that Notification dated 18.9.2009 was passed by the State Government by exercising its power conferred under Sections 3 and 4 of the (D.B. SAW/451/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:07:27 PM) [2023/RJJP/006658] (4 of 10) [CW-8382/2013] Act of 2008 and the provisions of the said Act were challenged before this court in the case of Captin Gurvinder Singh v. State of Rajasthan 2011 (1) RLW 697, and vide judgment dated 22.12.2010 the Division Bench of this court directed the State not to give effect to Sections 3 and 4 of the Act of 2008. Counsel submits that under these circumstances the effect of this Notification dated 18.9.2009 has been stayed. Counsel submits that under these circumstances, the respondents have applied the Circular dated 24.6.2008 and as per roster point system of this Circular, five posts were reserved for ST candidates looking to the total number of advertised posts i.e. fifty. Counsel submits that had there been fifty-one posts advertised, then there would have been six posts reserved for ST candidates as per the roster point number fifty-one. Counsel submits that under these circumstances, no illegality has been caused by the respondents while reserving five posts for ST candidates against the total fifty posts, as per the Circular dated 24.6.2008. Counsel submits that the petitioner participated in the selection process and when she remained unsuccessful, she has raised these pleas by way of filing this writ petition. Counsel submits that after participation in the process, the petitioner cannot challenge the criteria of reservation prescribed in the advertisement. In support of his contentions, he has placed reliance on the following judgments of Hon'ble Apex Court :-
(i) Union of India v. S. Vinod Kumar
(2007) 8 SCC 100
(ii) Chandra Prakash Tiwari v. Shakuntala Sharma
(2002) 6 SCC 127
(D.B. SAW/451/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:07:27 PM) [2023/RJJP/006658] (5 of 10) [CW-8382/2013] Counsel submits that under these circumstances, interference of this court is not warranted.
(6) Heard and considered the rival submissions made at the Bar and perused the material available on record. (7) The undisputed fact is that in all, fifty posts were advertised by the respondents for appointment on the post of Customer Relations Assistant out of which, five posts were reserved for ST candidates. This fact is not in dispute that reading the advertisement from her bare naked eyes, the petitioner participated in the process of selection and remained unsuccessful. The petitioner could not secure the cut-off marks of her category and on the basis of her marks, she was kept in waiting reserve list. Now at this stage, the petitioner became prudent and she has challenged the entire selection process on the ground that the posts have not been advertised as per the reservation policy. The petitioner has not impleaded any of the selected candidates as party in this petition.
(8) It is a well settled legal position that where a person participated in the process of selection without challenging the criteria and the Rules pertaining to selection, in the event of his being unsuccessful, he cannot be allowed to challenge the process of selection or the criteria of selection. In this regard, recent judicial pronouncement of the Hon'ble Supreme Court in the case of Mohd. Mustafa v. Union of India (2022) 1 SCC 294, restated the settled legal position as below:-
"It is in this context, we have to examine whether the Appellants are estopped from challenging the recommendations made by the Empanelment Committee, given the fact that they had taken a calculated chance, (D.B. SAW/451/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:07:27 PM) [2023/RJJP/006658] (6 of 10) [CW-8382/2013] and not protested till the selection panel was made public. In our opinion, the ratio in Madan Lal and Others v. State of Jammu and Kashmir and Others, would apply in the present case as when a person takes a chance and participates, thereafter he cannot, because the result is unpalatable, turn around to contend that the process was unfair or the selection committee was not properly constituted. This decision, no doubt, pertains to a case where the petitioner had appeared at an open interview, however, the ratio would apply to the present case as the Appellant too had taken a calculated chance in spite of the stakes, that too without protest, and then has belatedly raised the plea of bias and prejudice only when he was not recommended. The judgment in Madanlal (supra) refers to an earlier decision of this Court in Om Prakash Shukla v. Akhilesh Kumar Shukla, wherein the petitioner who had appeared at an examination without protest was not granted any relief, as he had filed the petition when he could not succeed afterwards in the examination. This principle has been reiterated in Manish Kumar Shahi v. State of Bihar, and Ramesh Chandra Shah v. Anil Joshi."
(9) Another recent judicial pronouncement of the Hon'ble Supreme Court in the case of Ashok Kumar v. State of Bihar (2017) 4 Supreme Court Cases 357, held 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 crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, 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, 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 and Rashmi Mishra v. M.P. Public Service Commission.)"
(D.B. SAW/451/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:07:27 PM) [2023/RJJP/006658] (7 of 10) [CW-8382/2013]
14. The same view was reiterated in Amlan Jyoti Borroah (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 procedure laid down therein are not entitled to question it upon being declared to be unsuccessful."
(10) In the case of Madras Institute of Development Studies v. K. Sivasubramaniyan (2016) 1 SCC 545, the Hon'ble Apex Court has dealt with this issue in paras 14 to 18 as under :-
"The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.
In Dr. G. Sarana v. University of Lucknow (1976) 3 SCC 585, a similar question came for consideration before a three Judges Bench of this Court where the fact was that the Petitioner had applied to the post of Professor of Athropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the Petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held:
"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the Appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lal's case [AIR 1957 SC 425] where in more or less similar circumstances, it was held that the failure of the Appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:
'9. ....It seems clear that the Appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.'"
In Madan Lal v. State of J&K (1995) 3 SCC 486, similar view has been reiterated by the Bench which held that:
(D.B. SAW/451/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:07:27 PM) [2023/RJJP/006658] (8 of 10) [CW-8382/2013] "9. Before dealing with this contention, we must keep in view the salient fact that the Petitioners as well as the contesting successful candidates being Respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. 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. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla 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."
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:
"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 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." In the case of Ramesh Chandra Shah v. Anil Joshi (2013) 11 SCC 309, recently a Bench of this Court following the earlier decisions held as under:
In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the Respondents had waived their right to question the advertisement or the methodology adopted by the Board for making (D.B. SAW/451/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:07:27 PM) [2023/RJJP/006658] (9 of 10) [CW-8382/2013] selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the Respondents."
(11) Hence, in view of the authoritative pronouncements of the Hon'ble Apex Court, the petitioner is estopped to challenge the criteria of reservation and selections after remaining unsuccessful in the selection process.
(12) Now this court proceeds to deal with the issue on merits also. The whole case of the petitioner is based on the Notification dated 18.9.2009, which has been issued by the Government of Rajasthan in exercise of its powers conferred by Sections 3. 4 and 6 of the Act of 2008 and the Roster Rules 2009 framed by the State in exercise of above powers. The validity of Sections 3 and 4 of the Act of 2008 was challenged in the case of Captin Gurvinder Singh (supra) and while deciding the case the Division Bench passed following judgment on 22.12.2010:-
"19. In the instant case, the State Government has not made any study nor collected the quantifiable data, which is necessary. When certain community is already in backward class what makes it special one as compared to others in backward class was not point of reference to Chopra Committee, when concept of creamy layer exclusion was existing in backward classes what led to providing further reservation to EBC has been not made clear in any comparable data. In view of the decisions of the Apex Court in the cases of M. Nagaraj (supra), Indra Sawhney (supra) and Ashoka Kumar Thakur (supra), we direct that the State Government shall re-visit Sections 3 and 4 of the Act of 2008 as well as the Notifications. The State Government shall keep in mind that benefit of reservation is provided to the needy and is not usurp by the persons in the same class who have already come up on higher level income group. Reservation to the higher income group is not envisaged in the Other Backward Classes. The State shall keep in mind the law laid down by the Apex Court in various decisions in Indra Sawhney (supra), M. Nagaraj (supra) and Ashoka Kumar Thakur (supra). The State shall also consider the extent of reservation which it can do in light of aforesaid decisions and of providing of further reservation than existing. We direct the State not to give effect to the Sections 3 and 4 of the Act of 2008 and the Notification with respect to enhancing financial limit of creamy layer from 2.5 lacs to (D.B. SAW/451/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 05:07:27 PM) [2023/RJJP/006658] (10 of 10) [CW-8382/2013] 4.5 lacs. Let the State reconsider provision for creating Special Backward Class, provision of 14% reservation to EBC also."
(13) Perusal of the above judgment indicates that the State was directed not to give effect to Sections 3 and 4 of the Act of 2008 and the Notification dated 18.9.2009. Hence, the roster points arising out of this Notification is neither here nor there. Hence, the petitioner is not entitled to claim any benefit of this Notification. Therefore, under these circumstances, the Notification dated 24.6.2008 is applicable in the instant case, and as per roster points of this Notification dated 24.6.2008, the respondents have provided reservation of five posts to ST candidates against the total number of fifty posts. The respondents cannot exceed the roster points for providing benefit of one additional post to ST Male or Female candidates. (14) The selection process was completed long back and the selected candidates have not been impleaded as party respondents. The petitioner has assailed the entire selection process after remaining unsuccessful. The petitioner has failed to make out any case for grant of any relief in her favour. The petition being devoid of merit, is hereby dismissed. (15) Stay application and all pending application(s), if any, stands dismissed.
(ANOOP KUMAR DHAND), J.
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