Allahabad High Court
Nadeem Ahmad vs State Of U.P. Through Prin. Secy. Labour ... on 13 September, 2019
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 20 Case :- SERVICE SINGLE No. - 812 of 2015 Petitioner :- Nadeem Ahmad Respondent :- State Of U.P. Through Prin. Secy. Labour & Employment Deptt. Counsel for Petitioner :- Rajeiu Kumar Tripathi Counsel for Respondent :- C.S.C.,Shivam Sharma Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner and learned Standing counsel appearing for the State-respondents.
2. By means of the present petition, the petitioner has prayed for the following reliefs:-
"(a) Issue a writ, order or direction in the nature of certiorari, quahsing the impugned promotion order dated 20.01.2015 issued by the opp-party no. 3, as contained in Annexure No. 1 to the writ petition.
(b) Issue a writ, order or direction in the nature of mandamus, commanding the opp-parties, particularly opp-parties no. 3 and 4 to constitute a fresh Departmental Selection/Promotion Committee and to conduct a fresh writeen test, typing test and interview for selection and promotion of employees from Group-D to Group-C post by complying with the Guidelines and Government order Dated 19.08.2014, contained in Annexure No. 6 to the writ petition.
(c) Issue such other order or direction, which this Hon'ble Court may deem just and proper in the circumstances of the case in the favour of the petitioner, and;
(d) award the costs of the petition in favour of the petitioner.
3. The case set forth by the petitioner is that he was appointed as a Class IV employee by the respondents in the year 2005 and has been working since then on the said post. On 16.10.2014, the respondent no. 3 issued an order for holding a departmental examination for a Class III post of Junior Assistant in terms of provisions of dk;kZy; fyfid oxhZ; (inksUurh }kjk HkrhZ) fu;ekoyh] 2001 (hereinafter referred to as "Rules, 2001") for which a typing test was scheduled to be held between 28.10.2014 to 30.10.2014 at Lucknow. Copy of the said order is annexure 5 to the writ petition. A Government order dated 19.08.2014 had also been issued, a copy of which is annexure 6 to the petition for the purpose of videography in the examination hall while holding the typing test for promotion to Group C post. The petitioner claims to have participated in the typing test but according to him, no videography was carried out on the said date of examination. Subsequently, when the result was declared of the typing test, the petitioner was declared as passed and his name figured at Serial No. 15 in the list of passed candidates which was issued along with a covering letter dated 11.11.2014, copy of which is annexure 7 to the writ petition. Thereafter, the petitioner appeared in the written examination and viva-voce which was held on 18.11.2014. Even before the result was declared claims were made of malpractices in the said examination through a complaint by an Ex-President of the Class IV Employee Union to the Government on 16.01.2015 and 19.01.2015, copies of which have been filed cumulatively as annexure 8 to the petition. The result was thereafter declared on 20.01.2015, a copy of which is annexure 1 to the petition in which the petitioner was not declared selected. Being aggrieved, the petitioner submitted a representation before the respondent no. 2 on 31.01.2015, a copy of which is annexure 9 to the petition and when no action has been taken, the present petition has been filed.
4. Learned counsel for the petitioner while seeking to challenge the result dated 20.01.2015 declaring various persons as selected contends that a perusal of the result would indicate that various ineligible persons have been declared as selected while the petitioner who had the requisite speed of typing and had also passed the typing test, has not been declared as selected in the final result whereby casting a suspicion on the final result.
5. Elaborating this, learned counsel for the petitioner contends that once a Government order dated 19.08.2014 had been issued for the purpose of videography in the typing test yet no videography was conducted on the date of the typing examination thus it is apparent that the Government order was flagrantly and deliberately violated with the result that those persons who had no knowledge of typing were impersonated by outsiders and had the Government order dated 19.08.2014 been followed scrupulously then such impersonation could have come to light and consequently such outsiders could have been weeded out whereby resulting in fairness and the same not having been done vitiates the said selection. It is also argued that all these irregularities were pointed out by the petitioner in his representation dated 31.01.2015 as well as by the Ex-President of the Union through his complaint dated 16.01.2015 but to no avail and thus it is prayed that the impugned result merits to be set aside.
6. With regard to the fact of the petitioner having participated without any demur or protest in the typing test and thereafter in the written examination and viva-voce and having only filed the petition after having been declared as failed in the written examination, learned counsel for the petitioner has placed reliance on a Division Bench judgment of this Court in the case of Dharmendra Kumar and Ors Vs. Abhishek Kumar and Ors reported in (2017) 35 LCD 1318 to contend that a selection process can also be challenged by a failed candidate despite having participated in the examination.
7. Per contra, Sri Shivam Sharma, learned counsel appearing for the selected candidates who have been impleaded as respondents no. 5 to 20 takes a preliminary objection that once the petitioner participated in the typing test, written examination and viva-voce and it was only after the result has been declared on 20.01.2015 that the petitioner has raised objection to the selection process through his representation dated 31.01.2015 and consequently, taking into consideration the settled proposition of law in this regard, a failed candidate cannot be allowed to challenge the selection process. In this regard, reliance has been placed on the judgment of the Hon'ble Supreme Court in the cases of Pradeep Kumar Rai and Ors Vs. Dinesh Kumar Pandey and Ors reported in (2015) 11 SCC 493 and Ashok Kumar and Anr Vs. State of Bihar reported in (2017) 4 SCC 357 & Madras Institute of Development Studies and Anr Vs. Dr. K. Sivasubramaniyan and Ors reported in (2016) 1 SCC 454.
8. On merits, Sri Sharma argues that when the typing test was held between 28.10.2014 to 30.10.2014, the petitioner was perfectly aware about the Government order dated 19.08.2014 and thus in case he found that no videography had been conducted on the said date, he should have either not participated in the typing test and lodged his objections or should have submitted a complaint immediately but the petitioner participated in the typing test and was also declared as selected in the typing test in the result which was declared on 11.11.2014. It is only when the petitioner has been declared unsuccessful in the final result dated 20.1.2015 that he has approached the respondents through his representation dated 31.01.2015 and has thereafter approached this Court, which conduct itself indicates that the petitioner was all along satisfied with the typing test that had been held by the respondents and only after having been declared failed has approached this Court which is legally impermissible in the eyes of law.
9. So far as the Government order dated 19.08.2014 is concerned, Sri Sharma argues that the Rules, 2001 do not contemplate or provide for holding of a videography of the typing test and as such the Government order can only be held to be directory and not mandatory and thus even if the said Government order was not followed and there being no such provision under the Rules, consequently there is no illegality or infirmity in no videography having been held during the typing test. It is thus contended that the writ petition being misconceived merits to be dismissed.
10. Learned Standing counsel on the basis of averments contained in the counter affidavit argues that the typing test was held from 28.10.2014 to 31.10.2014 in the supervision of an invigilator. There was no illegality in conducting the typing test as the petitioner has passed the typing test but it was only when his name did not find place in the final merit list and he could not be promoted that the petitioner is now making wild and false insinuations in order to make out a case against the said selection which is patently misconceived. Learned Standing counsel also adopts the other arguments as have been raised by Sri Sharma pertaining to the very maintainability of the petition.
11. Heard learned counsels for the contesting parties and perused the records.
12. The petitioner a Class IV employee participated in the typing test held for the purpose of promotion to a Group C post. The rules governing the promotion are governed by the Rules, 2001 which categorically provides in rule 8 for a written examination, interview and service record to be considered as well as a typing test to be organized. Rule 8 of the Rules, 2001 do not contain any provision for holding of any videography for the typing test. Fully being aware of the Rules, the petitioner willingly participated in the typing test which was held from 28.10.2014 to 30.10.2014. Though the Government order dated 19.08.2014 provides for a videography yet admittedly no videography was held of the typing test. In case the petitioner was of the view that the videography of the typing test was mandatory, he should have either not participated in the typing test or in case he participated, then he should have lodged a complaint immediately or could have participated under protest. From the arguments as raised by the learned counsel for the petitioner as well as records it clearly comes out that it is only after the petitioner was declared failed in the final result which was declared on 20.01.2015 that he has submitted his complaint on 31.01.2015. Thus, from the conduct of the petitioner itself it is apparent that the petitioner willingly participated in the typing test despite the existence of the Government order dated 19.08.2014 and no videography having been held by the respondents. Thus, in view of the settled proposition of law once a candidate willingly participates in the examination then he cannot be allowed to challenge the same after he has been declared failed in the said exam.
13. In this regard, suffice would be to place reliance on the judgment of the Apex Court in the case of Pradeep Kumar Rai (supra) wherein the Apex Court has held as under:-
"16. 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. Thus, 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. (See Vijendra Kumar Verma v. Public Service Commission, Uttarakhand and Ors. (2011) 1 SCC 150, and K.H. Siraz v. High Court of Kerala and Ors. (2006) 6 SCC 395)."
14. Likewise, Hon'ble Supreme Court in the case of Ashok Kumar (supra) has held as under:-
"10. The basic issue that was addressed by the Division Bench was that the appellants having participated in the fresh round of selection could not be permitted to assail the process once they were declared unsuccessful. On this aspect, a brief recapitulation of the facts would be in order. In the original process of selection, following the issuance of General order No. 204 of 2003 by the District and Sessions Judge, Muzaffarpur on 2 December 2003, a written examination was held on 20 April 2004 consisting of eighty five marks followed by an interview on 7 July 2004 consisting of fifteen marks.
The High Court declined to approve of the selection list and issued through its Registrar (Administration), a communication dated 19 August 2004 requiring the holding of a fresh written examination carrying ninety marks in which the qualifying marks would be regarded as forty five in terms of its General letter No.1 of 1995. Pursuant thereto, a circular was issued in the form of a new General order bearing No. 171 of 2004 on 8 October 2004 which stipulated that in terms of the directions issued by the High Court on 19 August 2004, a fresh written examination would be held carrying ninety marks (with qualifying marks as forty five) followed by an interview of ten marks. Candidates who had applied earlier were not required to apply afresh.
11. 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.
12. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla[4], 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[5], this Court held that :
"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 also Munindra Kumar v. Rajiv Govil[6] and Rashmi Mishra v. M.P. Public Service Commission[7])."
The same view was reiterated in Amlan Jyoti Borroah (supra) where it was held to be well settled that 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. In Manish Kumar Shah v. State of Bihar[8], the same principle was reiterated in the following observations :
"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. Reference in this connection may be made to the Judgments in MadanLal v. State of J. and K. MANU/SC/0208/1995 : (1995) 3 SCC 486, MarripatiNagaraja v. Government of Andhra Pradesh and Ors. MANU/SC/8040/2007 : (2007) 11 SCC 522, Dhananjay Malik and Ors. v. State of Uttaranchal and Ors. MANU/SC/7287/2008 : (2008) 4 SCC 171, AmlanJyotiBorooah v. State of Assam MANU/SC/0077/2009 : (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines and Ors. (supra)." In Vijendra Kumar Verma v. Public Service Commission[9], 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. In Ramesh Chandra Shah v. Anil Joshi[10], candidates who were competing for the post of Physiotherapist in the State of Uttrakhand 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 :
"18. It is settled law that a person who consciously takes partin the process of selection cannot, thereafter, turn around and question the method of selection and its outcome." In Chandigarh Administration v. Jasmine Kaur[11], 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[12], this Court held that : "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 v. S.K. Shiva Subaramanyam[13]."
15. Similarly the Hon'ble Supreme Court in the case of Madras Institute of Development Studies (supra) has held as under:-
20. 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.
21. In Dr. G. Sarana v. University of Lucknow and Ors. (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 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:
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.
22. In Madan Lal and Ors. v. State of J&K and Ors. (1995) 3 SCC 486, similar view has been reiterated by the Bench which held that:
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.
23. 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.
24. In the case of Ramesh Chandra Shah and Ors. v. Anil Joshi and Ors. (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 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."
16. Thus, once the conduct of the petitioner is seen in the context of the aforesaid law laid down by the Apex Court, it is apparent that the petitioner willingly participated in the examination but when he was declared failed he has challenged the process, which challenge is legally impermissible.
17. As regards the complaints submitted by an Ex-President of the Union on 16.01.2015 highlighting the alleged illegalities, suffice to state that the said complaint was never submitted by the Union itself rather was submitted by an an Ex-President. Nothing prevented the petitioner from submitting a complaint, as already indicated above, immediately on the date of the type test or subsequent to the type test having been held but the very conduct of the petitioner in waiting for the result to be declared and after he having been declared as failed, submitting a complaint subsequent thereto itself indicates that the petitioner all along was perfectly satisfied with the selection process.
18. As regards the Government order dated 19.08.2014 which provides for videography, suffice to state that conduct of videography does not form part of the Rules, 2001. The said Government order is not mandatory and at the most be said to be only directory inasmuch as no consequence for not holding of the videography has been provided. Further, nothing prevented the Government from incorporating videography during type test to be part of the Rule 2001. In this view of the matter, the said Government order can at the most be said to be directory only and once the respondents have categorically stated in their counter affidavit that an invigilator had been deputed during the type test and no illegalities were brought to his notice consequently merely because the petitioner has failed and has not been declared as selected would not now give a license to the petitioner to place reliance on the aforesaid Government order dated 19.08.2014 to raise a challenge to the typing test, more particularly when the petitioner participated in the said type test without any objection, demur or protest.
19. As regards the Division Bench judgment of this Court in the case of Dharmendra Kumar (supra), wherein this Court had interfered in the selection process after the result had been declared, in the said case, the locus of the petitioner to file a petition after participating in the selection had been raised but the same was negated by this Court on the ground that the grievance of the unselected candidates was with relation to the rounding of marks that had been done by the respondents without existence of any such provision in the service rules. Thus, the service rule had itself been violated by the respondents while conducting the selection. This would be apparent from a perusal of the following observations made by the Division Bench of this Court, which, for the sake of convenience, are reproduced below:-
"18. In the instant case, what we find is that challenge to any rule or prescription or criteria or procedure for selection was not made by the petitioners before the learned Single Judge. What was assailed before the learned Single Judge was the manner in which the selection was held which according to the petitioners was contrary not only to the Service Rules, 2008 but also to the Instructions Manual. It was contended by the petitioners before the learned Single Judge that application of rounding off marks was not permissible in absence of any such provision in the Service Rules, 2008 or in the Instructions Manual. They had also contended that calling of candidates more than three times the vacancies for the purpose of group discussions was also in violation of Rule 15(f) of the Service Rules, 2008 and Clause 2.7 of the Instructions Manual.
19. In the aforesaid view of the matter, we are not impressed by the submissions made in regard to the locus of the petitioners for challenging the selection. We are, thus, in agreement with the view recorded by learned Single Judge, in this regard, in the judgment and order under appeal. "
20. In the present case, there is no averment of violation of the service rules or Rule 8 of the Rules, 2001 rather the violation is alleged of the Government order dated 19.08.2014 which, as already indicated above, can at the most be considered to be only directory and not mandatory. Hence, the aforesaid judgment of Dharmendra Kumar (supra) is distinguishable and would not have any application in the facts of the present case.
21. Accordingly, taking into consideration the aforesaid discussion, no case for interference is made out. The writ petition is dismissed.
Order Date :- 13.9.2019 Pachhere/-
(Abdul Moin, J)