Central Administrative Tribunal - Hyderabad
P Ramakrishna vs East Coast Railway on 30 January, 2024
1
OA.No.739/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
ORIGINAL APPLICATION NO.020/00739/2022
ORDER RESERVED ON 09.01.2024
DATE OF ORDER: 30.01.2024
CORAM:
HON'BLE MR. SUDHI RANJAN MISHRA, JUDICIAL MEMBER
HON'BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER
1. Mr.P.Ramakrishna, S/o Late Appa Rao, Age-39
Working as Technician Grade-III
Under SSE/AC/VSKP
R/o: Manchalapeta Village
Kotabommali Post
Srikakulam Dist. AP.
2. Mr.B.Sridhar, S/o Late Papayya, Age: 34
Working as Technician Grade-I
Under SSE/AC/VSKP
R/o: Rly QNo.RE 8/D, Type-II
Railway New Colony
Thatichetlapalem, Visakhapatnam.
3. Mr. B V Suresh, S/o late Suryanarayana, Age: 43
Working as Technician Grade-III
Under SSE/AC/VSKP
R/o: Door No.5-30-2/1
Kothapalam, Gopalapatnam.
4. Mr.B.Udaya Bhaskar, S/o Appa Rao, Age: 38
Working as Technician Grade-I
Under SSE/CLG/North/VSKP
D.No.34-5-10, Siril Street
Gnanapuram, Visakhapatnam.
5. Mr.M.Krishna, S/o late Sri Dalinaidu, Age: 43
Working as Technician Grade-III
Under SSE/AC/VSKP
D No.1-17/2-1, Kokapeta
Near Ramamandiram Backside
Cantonment, Vijayanagaram. .....Applicants
(By Advocate Sri K.Sudhakar Reddy)
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OA.No.739/2022
Vs.
1. Union of India
Represented by the General Manager
East Coast Railway
Chandrashekhar Nagar
Bhuvaneshwer - 751023.
2. The Divisional Railway Manager
Personnel Branch
East Coast Railway, Waltair
Visakhapatnam - 530016.
3. The Senior Divisional Electrical Engineer
Waltair Division, East Coast Railway
Waltair, Visakhapatnam - 530016.
4. B.Tarun Kumar, S/o. Late B.V.Ramana
Age: 43 years, Occ: Technician Gr.I
Office of Senior Divisional Electrical Engineer
Waltair Division, East Coast Railways
Dondaparthy, Visakhapatnam.
5. Nidigatla Nirmala Kumari, W/o. Nidigatla Bobby
Aged about 46 years, Occ: Technician Gr.I
Office of Senior Divisional Electrical Engineer
Waltair Division, East Coast Railways
Dondaparthy, Visakhapatnam.
6. D.Anoop Kumar, S/o. late D.B.Raju
Aged about 36 years, Occ: Technician Gr.I
Office of Senior Divisional Electrical Engineer
Waltair Division, East Coast Railways
Dondaparthy, Visakhapatnam.
7. K.Vikrama Murthy, S/o. K.Adinarayana
Aged about 47 years, Occ: Technician Gr.I
Office of Senior Divisional Electrical Engineer
Waltair Division, East Coast Railways
Dondaparthy, Visakhapatnam.
8. J.Ravi Kumar, S/o. late J.Nageswara Rao
Aged about 40 years, Occ: Technician Gr.I
Office of Senior Divisional Electrical Engineer
Waltair Division, East Coast Railways
Dondaparthy, Visakhapatnam. ....Respondents
(By Advocates Sri V.Venu Madhava Swamy, Senior Panel Counsel for Central
Government & Sri M.R.Tagore, Counsel for R4 to R8)
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OA.No.739/2022
ORDER
PER: HON'BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER
1. The present Original Application has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 seeking therein the following relief:
"To call for the records and set aside the Selection to the post of Junior Engineer against 25% IAM Quota in Level-6 Electrical (General) Department of WAT Division vide Notification Letter No.WPV/RSM/JE- 25% IAM/2022 dated: 11.04.2022 issued by the 2nd respondent as illegal, arbitrary and in violation of the Railway Board Letter No.E(NG)I/2018/PM1/4, Dt: 14.12.2018 (RBE No 196/2018) and violation of the applicants fundamental rights guaranteed under Article 14 and 16 of the Constitution of India;
and Consequently direct the respondents to conduct the selection to the post of Junior Engineer against 25% IAM Quota in Level-6 Electrical (General) Department of WAT Division as per Railway Board Letter No.E (NG)I/2018/PM1/4, Dt: 14.12.2018 (RBE No.196/2018)."
2. Brief facts of the case as pleaded by the applicants are as follows:
I. All the applicants herein who are ITI passed candidates are working as Technician-III in the East Coast Railway, Vizag.
II. The respondents have proposed to conduct a selection for promotion to the post of Junior Engineer in Level-6 of Electrical (General) Department from amongst the eligible categories of staff working in Electrical (General) Department thereby issued notification dated 11.04.2022.4 OA.No.739/2022
III. Opinions are invited from the eligible staff in the category of Technician-III, Gr.II and Gr.I and Sr.Technicians in Level-2, Level- 4, Level-5 and Level-6 of Electrical (General) Department of WAT Division in the prescribed format.
IV. All the applicants who have prepared for the examination in Elementary Engineering and Mathematics as prescribed in the Notification have appeared against 25% IAM Quota for the selection to the post of JE in Level-6 of Electrical (General) Department. But the respondents have set the question paper in High Standard of Engineering Graduates and the question paper was given 100% only theoretical knowledge and more than 90% related to out of electrical department questions.
V. As per Railway Board Master Circular No.31 dated 19.12.2019 vide para 7.3 (i) the question paper for written test should have practical basis i.e. should be designed to test ability of the candidates to tackle the practical problems they are likely to face rather than their theoretical knowledge.
VI. As per Railway Board Letter No.E (NG)I/2018/PM1/4, dated 14.12.2018 (RBE No.196/2018) respondents are supposed to supply question bank in advance before examination is held. In the present case no question bank is supplied to the applicants. As per the said letter, a large question bank may be created from which the questions can be selected randomly for conducting a Computer 5 OA.No.739/2022 Based Test. Examination is held in total violation of the above said Railway Board Letter dated 14.12.2018.
VII. As per the above Railway Board letter dated 14.12.2018, the promotion of staff within Group 'C' by selection or non-selection process and Group D to C is regulated by provision contained in Section B of Chapter-II of Indian Railway Establishment Manual Volume-I and instructions contained in Board's letter No.E(NG)1/98/PM 1/17 dated 20.10.1999 and other instructions issued from time to time. The existing system of examination conducted for filling up promotional posts has been reviewed by the Board and to bring objectivity to the selection process it has been decided as under:
i) The question paper will henceforth be 100% Objective Type
ii) All the questions will be of multiple choice only
iii) A large question bank may be created from which the questions can be selected randomly for conducting a Computer Based Test.
iv) Any selection which has already been notified will be conducted as per the existing instructions only and the new instructions would apply for those selections which are notified after the date of issue of these instructions.
The above changes would be applicable to all Departments except Accounts and RPF who deal with their own establishments. VIII. Further the examination was not held in Bilingual form i.e. in Telugu language as per Options exercised which is mandatory. 6 OA.No.739/2022 Negative marking of 1/3rd was taken as per RBE 196/2018 dated 14.12.2018 without releasing question bank as per the RBE reference. Exam paper is set by the same department instead of other departments by giving scope for manipulations. Respondents have prepared the theoretical questions in the form of multiple choice. IX. The 25% IAM Quota vacancies are only 4(UR-2, SC-2) only but the respondents notified total 5 vacancies by adding the vacancy under 25% DP Quota. The respondents have clubbed the vacancies of 25% DP Quota with 25% IAM Quota which is not permissible and is contrary to the rules of recruitment.
X. Since all the applicants are ITI qualified candidates, they are not in a position to answer the high standard of questions. Due to the arbitrary methods adopted by the respondents in clear violation of the Railway Board instructions, applicants are denied the fair chance of getting selection/promotion under 25% IAM Quota. The whole selection process adopted by the respondents for conducting selection to the post of Junior Engineer against 25% quota in Level- 6 Electrical (General) Department of WAT Division vide Notification Letter No.WPV/RSM/JE-25% IAM/2022 dated 11.4.2022 is clearly illegal, arbitrary and in violation of the Railway Board letter dated 14.12.2018 and also in clear violation of fundamental rights guaranteed under Article 14 and 16 of the Constitution of India.
7OA.No.739/2022 XI. The applicants have submitted their representation pointing out the irregularities in the selection and requested for cancellation of the whole selection and to conduct the same afresh as per rules. But till today no action is taken on the said representation by the respondents instead taking steps to finalise the selection as per their whims and fancies. If selection is finalised, applicants will be put to irreparable loss and damage.
3. On notice, all the respondents i.e. official respondents No.1 to 3 and un- official(impleaded) respondents No.4 to 8 have filed their reply statements as well as Miscellaneous Applications for vacation of interim order granted by this Tribunal vide order dated 10.11.2022 in the OA.
4. The official respondents No.1 to 3 have submitted in their reply statement that a notification has been issued by the office of DRM (P)/WAT vide No.WPV/RSM/JE-25%/IAM/2022 dated 11.4.2022 with strict compliance and without any deviation of RBE No.196/2018 for the selection of Junior Engineer against 25% IAM quota in level-6 Electrical (General)/WAT. In the said notification, it is clearly indicated the eligibility criteria, mode of selection and detailed syllabus for the written examination. In response to the above notification, 36 candidates along with the applicants have applied and all were found eligible and the list of eligible and ineligible candidates were notified vide DRM (P)/WAT letter No.WPV/RSM/JE-25%IAM/2022 dated 21.07.2022. Accordingly, after prior intimation to all the eligible candidates, a written examination was conducted on 15.10.2022 wherein total 36 eligible staff including the applicants have appeared the examination without any complaint 8 OA.No.739/2022 about the notification. All the questions in the question paper for the written examination held on 15.10.2022 were given as per the prescribed syllabus. After appearing the written examination, because of their poor performance in the said examination, the applicants have submitted a representation on 21.10.2022 to the Divisional Railway Manager wherein it is alleged that examination was conducted by an irregular way without following the Railway Board guidelines and requested to cancel the examination. They have been suitably replied vide letter dated 6.1.2023(Annexure-R1). After evaluation, written examination results were published vide DRM (P)/WAT Office Order dated 31.10.2022(Annexure-R2) wherein only 5 candidates have qualified and none of the applicants have qualified.
5. The respondents further submit that the question paper for the written examination held on 15.10.2022 was given as per the stipulated syllabus circulated vide notification dated 11.04.2022 and the said question paper contains the 110 multiple choice questions. Further, in terms of RBE No.97/2019, Railway Board directions are to be fully implemented before migration to the Computer Based Test(CBT) but the present system of examination is paper-based test with OMR sheets conducted departmentally. Therefore, the directions of Railway Board do not apply to the present selection. Moreover, as per Railway Board's Letter No.E(NG)I-2006/PM1/34 dated 06.11.2006, the selections need not be postponed/delayed due to non- availability of question banks nor the questions will be limited to the question bank only. Since the selection for the post of JE is technical in nature, there is no feasibility of setting question paper in Telugu due to technical reasons and it 9 OA.No.739/2022 has been intimated by the question setting officer to inform all concerned staff that the written test will be bilingual i.e. both in Hindi and in English only and accordingly all the candidates were informed vide Lr.No.WPV/RSM/JE-25% IAM/2022 dated 12.10.2022. In terms of RBE No.97/2014 issued by the Railway Board, unfilled vacancies against the Departmental Quota will be diverted to LDCE quota (IAM) and unfilled LDCE quota (IAM) vacancies will be diverted to Direct Recruitment quota. Therefore, the averment of the applicants that the respondents have clubbed the vacancies of 25% DP with 25% IAM quota in contrary to the recruitment rules, is not supported by Railway Board rules and are misleading. The detailed syllabus published for the selection covers a range of multiple subjects and not compartmentalized into specific marks into each subject. Moreover, the applicants cannot demand the administration to set the question paper according to their choice of subjects. The examination being a Limited Departmental Competitive Examination (LDCE)/IAM the standard of question paper will be commensurate to the post and cannot cater to the whims and fancies of the applicants. The allegations are baseless and aimed at misleading from the fact that they have failed to qualify in the examination and is aimed at maligning the selection. Without any complaint before notification dated 11.04.2022 and on or before examination, the applicants have appeared the examination. But after their poor performance in the examination, they have submitted representation alleging that the examination was conducted by an irregular way without following the Railway Board guidelines, and requested to cancel the examination. Since the applicants have not shown the cogent reasons to consider their representation and the same is ignored as baseless. It is clear that the applicants have made no ground in 10 OA.No.739/2022 support of their case and same is filed with malafide intention to disturb the smooth functioning of Railway administration. Further, the completion of selection is very essential for Railway administration, since the subject posts are pertaining to Electrical Department and delay for filling up the same causes severe impact on train operations. Further, after publication of written examination results, without any reasonable ground, filing of this OA for cancellation of notification is not tenable in the eye of law and hence, the same is liable to be dismissed.
6. The un-official(impleaded) respondents No.4 to 8 in their reply statement have submitted that all of them were promoted in the year 2016 as Technicians Gr.I and presently working under Senior Divisional Electrical Engineer, Waltair Division, East Coast Railways, Visakhapatnam and were eligible for next promotion post of Jr.Engineer against 25% IAM(Intermediate Apprentice Mechanical) quota in the Waltair Division, East Coast Railways Zone. The 2nd respondent has issued notification dated 11.4.2022 for selection of Jr.Engineers for in-service candidates against 25% IAM quota in Level-6 of Electrical (General) Dept. of Waltair Division, East Coast Railways, Visakhapatnam. Total 5 posts were notified and 3 for UR, 2 for SCs. The selection is based on the written test and in the notification it is clearly indicated the eligibility criteria, mode of selection and syllabus details also for the written examination. Accordingly, all the un-official respondents have fulfilled the qualifications, age, experience etc. as per the condition of the notifications and applied for the posts of Jr.Engineers. The un-official respondents No.5, 7 & 8 herein are belonging to SC category. After issuing the notification on 11.04.2022 and just 11 OA.No.739/2022 before conducting written test scheduled to be held on 15.10.2022, the respondents have also given options to the 36 eligible candidates of Electrical (G) Dept. vide letter dated 15.9.2022 to choose exam language either Telugu/English/Hindi and called for options and the applicants have opted for English language only and the un-official respondents also continued their options in English only. But later due to technical problem and also paucity of time, as there is no feasibility of setting question paper in Telugu, the 2nd respondent prior to the written test has rightly informed to all the candidates vide letter dated 12.10.2022 stating that the written test will be conducted in Hindi and English only. It is also relevant to submit that none of the eligible candidates opted in Telugu, therefore, even withdrawing the exam mode in Telugu language or conducting in Telugu language does not make any difference and none was effected as the other terms and conditions of the mode of the exam is the same. Further after accepting all the terms and conditions of the notification, the applicants as well as the un-official respondents and other candidates were participated. Thereafter knowing about their poor performance in the written test and knowing very well that they could not be selected and not in merit, the applicants started submitting representation/appeal on 21.10.2022 to the 2nd respondent by making baseless allegations that the written test was conducted in irregular manner and not followed the syllabus etc. and requested to cancel the examination and selections. After participated in the selection process including written test and when the applicants are not under the zone of consideration for selection cannot say that written test and consequential selection process is illegal as the law is well settled, such kind of allegations are not permissible, as the applicants not raised any objection before proceeding 12 OA.No.739/2022 with the written test. Later when the results were published on 31.10.2022, the unofficial respondents were qualified for the 5 notified posts as per the merit and rule of reservations.
7. The un-official respondents submit that without any deviation of RBE No.196/2018, the notification was issued for selection of Jr.Engineer against 25% quota.The law is well settled that once candidate has participated in the selections without moving his little finger against the condition of the notification, after completion of the selection process and knowing that he is not within the merit, he cannot later question, as held by Hon'ble Supreme Court in case of Madras Institute of Development Studies and another vs. Dr.K.Sivasubramaniyam reported in 2016(1) SCC 454 and also the same view was taken in case of Manish Kumar Shahi vs. State of Bihar 2010 (12) SCC 576 and also in 2015 (6) ALT 72 B.Kavitha vs. State of AP. But the applicants without disclosing all the facts before this Tribunal has obtained interim order, by placing a question paper as material papers in OA which is related to Traction Rolling Stock (TRS), Jr.Engg.Exam held on 24.09.2022 and whereas the applicants participated in Jr.Engineers/Elect-G(Level-6) against 25% quota held on 15.10.2022. Accordingly the applicants have misled the facts of the case and obtained interim orders and stalled further selection process.
8. The non-official respondents further submit that the respondents have circulated the syllabus along with notification dated 11.4.2022 at para V, with enclosures as Annexure-B. Hence the allegation that the respondents did not supply the question bank in advance before examination is not correct. As per the settled law, it is not open to the applicants for re-exam once participated and completed 13 OA.No.739/2022 the selection process also as the principle "approbate and reprobate" is applied. In reply to para 4.7 of the OA, they submit that the Railway Board did not hold the examination in Telugu as the post of Jr.Engineers is a Technical one and the required qualifications also technical i.e. ITI/Diploma in relevant trade and there is no possibility in setting the question paper in Telugu language. Further, according to the respondents, out of 36 eligible candidates, none was opted Telugu language, therefore, there is absolutely no grievance in respect of mode of exam. Just to stall the selections, as they do not have chance for promotion, the applicants have filed the present OA which is liable to be dismissed with costs.
9. Heard Sri K.Sudhakar Reddy, learned counsel for the applicants and Sri V.Venu Madhava Swamy, learned Senior Panel Counsel for Central Government & Sri M.R.Tagore, learned counsel for un-official respondents No.4 to 8 and perused the materials placed on record.
10. The contention of the applicants that the question paper in the Limited Departmental Competitive Examination conducted on 15.10.2022 was on high standard of Engineering Graduates is not correct as can be seen from the records that the question paper was as per the stipulated syllabus circulated vide notification dated 11.04.2022 containing 110 multiple choice questions. The detailed syllabus published for the selection covers a range of multiple subjects and it was not compartmentalized into specific marks against each subject.
11. The applicants' second contention that the question paper was given 100% only in theoretical knowledge and more than 90% related to out of electrical 14 OA.No.739/2022 department questions, is also not correct as it is proved beyond doubt that since they could not qualify the written examination, they are raising these issues as an afterthought. 36 candidates including the applicants were found eligible by the respondents and without any discrimination they all were allowed to appear in the examination. RBE Circular No.196/2018 for the selection of Junior Engineers against 25% IAM (Intermediate Apprentice Mechanical) quota in Level-6 of Electrical (General)/WAT is followed by the respondents. In this circular, the eligibility criteria, mode of selection and detailed syllabus for the written examination has been clearly spelled out. All the 36 eligible candidates were given prior intimation about the language of the examination which was bilingual i.e. both in Hindi and in English because none of the applicants have opted for Telugu when the option was sought from them. They were informed on 12.10.2022 about the language of the examination which was conducted on 15.10.2022. It is also clear that the present examination system was paper based test with OMR sheets. The examination being the Limited Departmental Competitive Examination, the standard of question paper has to commensurate to the rank and cadre of post for which the exam is conducted. Moreover when the applicants participated in the written examination without any protest and only after knowing that they were not qualified in the said examination, filing of this OA challenging the said selection process is not permissible in law as held by the Hon'ble Supreme Court in a plethora of judgments. In the case of Madras Institute of Development Studies and another vs. Dr.K.Sivasubramaniyam reported in 2016(1) SCC 454, which was cited by the un-official respondents No.4 to 8, the Hon'ble Apex Court had held as follows: 15 OA.No.739/2022
"19. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of experts. It was only after he was not selected for appointment, turned around and challenged the very selection process. Curiously enough, in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post.
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 vs. University of Lucknow & 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 16 OA.No.739/2022 an unfavourable report, he adopted the device of raising the present technical point."
22. In Madan Lal & Ors. vs. State of J&K & 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 Shukla1 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 vs. 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 17 OA.No.739/2022 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 others vs. Anil Joshi and others, (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."
12. Similarly in the case of Ashok Kumar v. State of Bihar, 2017 (4) SCC 357, the Hon'ble Apex Court had held that the appellants therein were estopped from turning around and challenging the selection process once they were declared unsuccessful. The relevant para is reproduced as below:
"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:
"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 18 OA.No.739/2022 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:
"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."
13. In Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285 , the Hon'ble Apex Court in no uncertain terms held as under:
24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination.
Again, in Union of India v. N. Chandrasekharan, (1998) 3 SCC 694, the Apex Court had held as under:
"It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report."19 OA.No.739/2022
The Apex Court in the case K.H. Siraj v. High Court of Kerala,(2006) 6 SCC 395, held as under:
"In Om Prakash Shukla v. Akhilesh Kumar Shukla (1986) Supp 285 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 Dhananjay Malik v. State of Uttaranchal,(2008) 4 SCC 171, the impermissibility of a person to challenge the selection when he had participated therein has been specified. The Court has held in that case as under:
7. It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
8. In Madan Lal v. State of J&K this Court pointed out that when the petitioners appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, 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 writ petitions.
This Court further pointed out 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.
9. In the present case, as already pointed out, the respondent- writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged 20 OA.No.739/2022 the advertisement and selection process without participating in the selection process. This has not been done.
Similarly in the case of Sadananda Halo v. Momtaz Ali Sheikh,(2008) 4 SCC 619, the Apex Court has held as under:
"This is apart from the fact that the unsuccessful candidates, after having taken part in the interview process could not turn back and call names to the system."
In State of Orissa & Anr vs. Rajkishore Nanda & Ors. in Civil Appeal No. 2808 of 2008, decided on June 3, 2010, the Hon'ble Apex Court had held as under:
"It is the settled legal proposition that no relief can be granted to the candidate if he approaches the Court after expiry of the Select List. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the Court at a belated stage. (Vide J.Ashok Kumar Vs. State of Andhra Pradesh & Ors., (1996) 3 SCC 225; State of Bihar & Ors. Vs. Md. Kalimuddin & Ors., AIR 1996 SC 1145; State of U.P. & Ors. Vs. Harish Chandra & Ors., AIR 1996 SC 2173; Sushma Suri Vs. Government of National Capital Territory of Delhi & Anr., (1999) 1 SCC 330; State of U.P. & Ors. Vs. Ram Swarup Saroj, (2000) 3 SCC 699; K. Thulaseedharan Vs. Kerala State Public Service Commission, Trivendrum & Ors., (2007) 6 SCC 190; Deepa Keyes -Vs.- Kerala State Electricity Board & Anr., (2007) 6 SCC 194; and Subha B. Nair & Ors. (supra)."
14. It is settled position of law that the Tribunal cannot sit on appeal over the decision of the selection committee as observed by the Hon'ble Apex Court in Civil Appeal No. 6057 of 2010: Dr. Basavaiah v. Dr. H.L. Ramesh & Ors, decided on 29th July, 2010, by referring to the case of Dalpat Abasaheb Solunke & Others v. Dr. B.S. Mahajan & Others, (1990) 1 SCC 305, and held as under:
37. In Dalpat Abasaheb Solunke & Others v. Dr. B.S. Mahajan & Others (1990) 1 SCC 305, the court in somewhat similar matter observed thus:21 OA.No.739/2022
"...It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction."
15. Recently, Hon'ble Delhi High Court in its judgment reported in 2023 (1) SLR 689 (Del) - Karan Singh Meena v. Registrar General, Delhi High Court, following the law laid down by the Hon'ble Supreme Court, held that the petitioner therein, having participated in the selection process, cannot challenge the same after he has been declared unsuccessful. The relevant para is reproduced as below:
"25. It is also relevant to emphasise that the petitioner had not challenged the scheme of the examination at the material time. The petitioner had participated in the examination unreservedly. It is well settled that it is not open for a candidate, who participated in the selection process, to subsequently challenge the same once he has been declared unsuccessful. The law on this subject is discussed comprehensively in the recent decision of the Supreme Court in Ashok Kumar and Anr. v. State of Bihar and Ors (supra)."22 OA.No.739/2022
16. Apprehending failure in the written examination, the applicants herein have started giving representations and have filed the present OA wherein the Tribunal had granted interim order stalling the further process of selections which causes great hardship to the successful candidates viz. un-official respondents No.4 to 8 who would have been sent for one year departmental training and consequential posting order but for the interim order passed in this OA. Keeping the above in view, we find no force in the contentions made by the applicants in the OA which is liable to be dismissed.
17. Accordingly, the OA is dismissed. However, there shall be no order as to costs. Since the written examination results for the post of Junior Engineer were already published by the respondents, it is appropriate to direct the respondents to complete the selection process and take all further necessary steps. Ordered accordingly.
(SHALINI MISRA) (SUDHI RANJAN MISHRA) ADMINISTRATIVE MEMBER JUDICIAL MEMBER /ps/