Madhya Pradesh High Court
Ashish Kumar Lakhera vs Northern Coalfields Ltd. on 16 January, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:5195
1 WP-3871-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 16th OF JANUARY, 2025
WRIT PETITION No. 3871 of 2024
ASHISH KUMAR LAKHERA
Versus
NORTHERN COALFIELDS LTD. AND OTHERS
Appearance:
Shri Vinayak Prasad Shah with Shri Pushpendra Kumar Shah -
Advocates for the petitioner.
Shri Greeshm Jain - Advocate for respondents No.1 and 2.
Shri Akash Choudhury - Advocate for respondents No. 3 to 10.
ORDER
By way of present petition, challenge is made to the Notice dated 28.01.2024 (Annexure P/1) issued by the respondent No.2, whereby the provisional merit list has been prepared against the notified vacancies for the post of HEMM Operator (Trainee) and thereby due to non-compliance of Reservation Rules/Policy, less meritorious candidates of OBC-ESM (Ex-
servicemen) have been selected and more meritorious candidates like petitioner have been deprived to get their names mentioned in the Provisional Merit List.
2. It is the case of the petitioner that the respondent No.1-Northern Coalfields Limited being a subsidiary company of the Coal India Limited issued an advertisement dated 07.08.2023 (Annexure P/2) inviting online Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:5195 2 WP-3871-2024 applications from Indian nationals possessing minimum qualifications required for regular appointment to the posts of HEMM Operator (Trainee) which is a Group-D Post namely, (1) Shovel Operator (Trainee), (2) Dumper Operator (Trainee), (3) Surface Miner Operator (Trainee), (4) Dozer Operator (Trainee), (5) Grader Operator, (6) Pay Loader Operator (Trainee) and (7) Crane Operator (Trainee) for its well-equipped 10 highly mechanized open cast mines situated in Singrauli (M.P.) and Sonebhadra (U.P.).
3. In pursuance to the same, the petitioner filled up his online application form in the category OBC-NCL for the post of HEMM Operator (Trainee). The Employment Notification dated 07.08.2023 specifically mentioned at Note-B(v) of Clause-1 that the reservation under various categories will be as per prevailing Government of India's guidelines at the time of finalization of results. It was further mentioned that nature of reservation for ESM (Ex- servicemen) will be horizontal. In earlier notification, the respondents have shown bifurcation of vacancies for Vertical reservation as well as Horizontal reservation in respective posts in a Table for proper implementation of reservation policies of Government of India but, in the impugned notification dated 07.08.2023, bifurcation of vacancies for Horizontal reservation for ESM (Ex-servicemen) is absent. The petitioner duly appeared in the Computer Based Test (CBT) on 01.10.2023 and secured 60 out of 100 marks in the Test with merit rank 200. In terms of Clause 7(ix) of the impugned Notification dated 07.08.2023, the list of provisionally short-listed candidates for appearing in scrutiny and verification of their original documents for determination of their eligibility for the post of HEMM Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:5195 3 WP-3871-2024 Operator (Trainee) was issued along with a notice dated 11.12.2023. The petitioner's name was placed at merit rank 200. After the documents verification, the respondent No.2 issued a notice dated 28.01.2024 along with the impugned Provisional Merit Panel for appointment of candidates against the notified vacancies for the post of HEMM Operator (Trainee). The name of petitioner was not found in the provisional merit list dated 28.01.2024 and the less meritorious candidates have been selected.
4. It is argued that the Reservation Rules/Policy of the Government of India are not followed by the authorities while preparing the provisional merit list vide impugned notice dated 28.01.2024. It is argued that the respondents have implemented communal reservation in horizontal reservation for Ex-servicemen and meritorious reserved category Ex- servicemen (ESM) has not been considered against the unreserved Ex- servicemen (ESM) post. It is further pointed out that in the provisional merit list, for the post of Dumper Operator (Trainee), one Satish Patel who has secured 50 marks out of 100 and was at Serial No. 179, has been selected against OBC-ESM. General-ESM candidates have been selected against UR- ESM seats in the impugned provisional merit list. An attempt has been made by the petitioner to point out that illegalities have been committed by the authorities while preparing the provisional merit list.
5. It is argued that as per the guidelines issued by the Central Government, in each category, horizontal reservation for Ex-servicemen (ESM) in Group 'D' post is 20% but the respondents while preparing the Provisional Merit List for appointment of candidates against the notified Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:5195 4 WP-3871-2024 vacancies for HEMM Operator (Trainee) have not considered the said horizontal reservation and have given horizontal reservation for Ex- servicemen (ESM) above 70% in OBC category for the post of HEMM Operator (Trainee), as a result of which, more meritorious candidates like petitioner have been deprived of their legitimate claims to get their names in the provisional merit list. It is further submitted that preparation of impugned Provisional Merit Panel is against Rule 4 of Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 and also ultra vires to Articles 14, 16 & 21 of the Constitution of India. Therefore, present petition has been filed.
6. Reliance is placed on the judgment passed in the case of Saurav Yadav vs State of U.P. reported in (2021) 4 SCC 542 wherein the Hon'ble Supreme Court has decided the issue of horizontal reservation for women and it is held that candidates should be selected for recruitment of unreserved women quota first on the basis of merit so that meritorious reserved category women candidates can be selected against unreserved women quota post. It is submitted that the same is applicable to the case in hand.
7. On notice being issued, a detailed reply has been filed by the respondents-authorities denying the petitioner's averment. It is contended that total 338 vacancies for 7 different posts were advertised vide Notification dated 07.08.2023 and the reservation was given to the Economically Weaker Section (EWS), Other Backward Class (Non-Creamy Layer), Scheduled Castes and Scheduled Tribes. The Ex-servicemen were to be recruited by giving them horizontal reservation. Out of 338 vacancies, 65 posts were Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:5195 5 WP-3871-2024 reserved for Ex-servicemen. It was based on the Rules known as Ex- servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 by which 20% of the vacancies in Group - D posts were to be filled by direct recruitment in any year shall be reserved for being filled by Ex- servicemen seats. It is contended that the Rules of 1979 prescribes 20% of vacancies in Group D posts which are to be reserved and the SC/ST and Other Backward Class candidates selected against the vacancies reserved for Ex-servicemen shall be adjusted against the vacancies reserved for SC/ST and Other Backward Classes respectively. The Rules of 1979 provides that 20% reservation of the seats are to be horizontal and it is without disturbing the general policy of reservation for other categories for whom reservation is available and subject to condition that upper ceiling of 50% for total reservation is adhered to. It is contended that total 109 Ex-servicemen have qualified out of which 68 were found eligible and against that only, 64 were selected. It is contended that the selection drive is over and most of the Ex- servicemen after their selection have already joined their posts. It is further contended that the person selected against these reservations has to be placed in the appropriate category that is to say that if he belongs to SC category, he will be placed in that quota by making necessary adjustments and even after providing for these horizontal reservations, the percentage of the reservation in favour of backward class of citizens should remain the same. The office memorandum dated 01.12.1994 has further provided that percentage of reservation for Ex-servicemen should remain the same and at present the Ex- servicemen selected under the reservation provided for them should be Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:5195 6 WP-3871-2024 placed in the appropriate category i.e. SC/ST, OBC, General depending upon the categories which he belongs. The another circular/office memorandum issued by the Government of India dated 22.09.2020 provides that the panel for selection of ESM against vacancies reserved shall be prepared first and only after adjusting ESM selected under their quota against the vacancies of SC/ST and OBCs, as the case may be, the panel for candidates belonging to SC/ST/OBCs against the remaining vacancies needs to be prepared. If sufficient number of candidates belonging to Ex-servicemen are not available, then the ESM may be selected under the relaxed standard of selection to make up the deficiency.
8. It is further submitted that the NCL management in accordance with the above circulars/memorandum issued by the Government of India from time to time prepared the list of qualified ESM and based upon the employment notification dated 07.08.2023, particularly with reference to Clause 7(xii), the post of HEMM Operator (Trainee) has been filled up based upon order of merit according to position of candidates. Many of the Ex- servicemen have been rejected because either they have not attended or presented themselves for scrutiny of original documents or failed to produce eligibility documents of minimum qualification. It is further contended that the NCL management on 28.01.2024 has published list of selected candidates which is provisional merit panel for appointment of candidates against the notified vacancies. There is no violation of any of the Rules/Regulations and 20% reservation for Ex-servicemen was to be made for Group D posts and not against the category or caste, hence the contention Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:5195 7 WP-3871-2024 raised by the petitioner is per se illegal and misconceived. The Rules of 1979 are duly followed by the authorities. The selection drive is already completed and the horizontal reservation provided for ESM for Group D post which is 20% has been rightly applied in selection to the present employment notification dated 07.08.2023. Under these circumstances, no relief can be extended to the petitioner.
9. The respondent-NCL has further filed an affidavit in terms of the order dated 13.11.2024 pointing out the fact that total 338 vacancies which includes 4 backlog vacancies out of which 65 total vacancies as per the post enumerated in the Table B was reserved by horizontal reservation for Ex- servicemen. Out of total 65 vacancies, 64 Ex-servicemen have been selected and 57 Ex-servicemen have joined their posts. The petitioner has not even been provisionally selected for the notified post, therefore, he is not entitled for any relief as claimed in the writ petition. It is further pointed out that the petitioner has already participated in the recruitment drive knowing well regarding the terms and conditions mentioned in the advertisement and once he was declared successful, he could not challenge the conditions of the impugned Notification issued for recruitment of the post in question. It is not a case wherein the conditions prescribed in the notification or the circular issued by the Central Government for reservation of Ex-servicemen post has not been followed by the authorities. In absence of the aforesaid, no relief can be extended to the petitioner.
10. Counsel appearing for the respondents No.3 to 10 have filed their separate reply, virtually adopting the submissions made by the counsel Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:5195 8 WP-3871-2024 appearing for respondents-NCL. Apart from the aforesaid, placing reliance upon the judgment passed by the Hon'ble Supreme Court in the case of Madan Lal vs State of J & K reported in (1995) 3 SCC 486 wherein it is observed that a candidate once taking a calculated chance by appearing in the examination knowing fully well regarding the procedural norms and the terms and conditions mentioned in the recruitment notification, eligibility qualifications and for the reason that he has not been finally selected, now could not take a stand to challenge the Notification or the method of selection adopted by the authorities. He has placed reliance upon the judgments passed by the Hon'ble Supreme Court in the cases of Dhananjay Malik vs State of Uttaranchal, reported in (2008) 4 SCC 171, Vijendra Kumar Verma vs Uttarakhand Public Service Commission, reported in (2011) 1 SCC 150, Ramesh Chandra Shah vs Anil Joshi, reported in (2013) 11 SCC 309 and Madras Institute of Development Studies vs Dr. K. Sivasubramaniyan, reported in (2016) 1 SCC 454. It is further contended that the recruitment drive is already over and the selected candidates have joined their respective posts. Without making all the appointed candidates as party to the proceedings and without challenging their appointment orders, no relief can be granted to the petitioner. Under these circumstances, the relief claimed cannot be granted. He has prayed for dismissal of the petition.
11. It is further contended that Union of India has not been made a party to the proceedings, therefore, any relief on the ground that the terms and conditions enumerated by the Central Government have not been followed in the matter, cannot be granted.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53NEUTRAL CITATION NO. 2025:MPHC-JBP:5195 9 WP-3871-2024
12. Heard learned counsels for the parties and perused the record.
13. Challenge to the provisional merit list dated 28.01.2024 is being made by the petitioner on the ground that the Notifications issued by the Central Government from time to time regarding reservation to the Ex-servicemen category have not been followed by the authorities. There is no dispute to the fact that the petitioner duly participated in the recruitment drive in pursuance of the employment notification dated 07.08.2023. The petitioner appeared for the post of HEMM Operator (Trainee) in category OBC-NCL. He secured 60 marks out of 100 in the Computer Based Test (CBT) and was placed at Serial No.200 in the merit list. It is the case of the petitioner that in terms of the guidelines issued by the Central Government in each category, the horizontal reservation for Ex-servicemen (ESM) Group D post is 20% but the respondents while preparing the provisional merit list for appointment of the candidates against notified vacancies for HEMM Operator (Trainee) have not considered the said horizontal reservation and has given horizontal reservation for Ex-servicemen (ESM) above 70% in the OBC category, as a result of which, more meritorious candidates have been deprived of getting appointment for appointment to the post in question.
14. It is trite law that once participated in the selection process and being aware of the terms and conditions mentioned in the notification and also aware of the circulars issued by the Government from time to time, an applicant cannot be permitted to take a U-turn and challenge the process of selection made by the authorities only because he could not qualify and was unsuccessful. In the present case, it is an admitted position that the petitioner Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:5195 10 WP-3871-2024 has duly participated in the selection process and was declared unsuccessful as his name does not find place in the impugned provisional merit list issued by the authorities. The Hon'ble Supreme Court in catena of cases has considered the similar proposition. In the case of Ashok Kumar vs State of Bihar, reported in (2017) 4 SCC 357, it is held as follows :
17. In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309, candidates who were competing for the post of Physiotherapist in the State of Uttarakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that :
"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 (2015) 11 SCC 493, 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.Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53
NEUTRAL CITATION NO. 2025:MPHC-JBP:5195 11 WP-3871-2024 The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted." This principle has been reiterated in a recent judgment in Madras Institute of Development Studies v. K. Sivasubramaniyan, (2016) 1 SCC 454.
15. On this ground alone, the petitioner is not entitled to any relief as claimed by him.
16. Even otherwise, if the merit of the case is concerned, then the document (Annexure R/1) shows that total 338 vacancies for 7 different posts were advertised vide Notification dated 07.08.2023. The posts were required to be filled up in the order of post giving therein based on order of merit position of the candidates, meaning thereby the first most meritorious candidate has to be selected against post of Shovel Operator (Trainee), thereafter Dumper Operator (Trainee), Surface Miner Operator (Trainee), Dozer Operator (Trainee), Grader Operator (Trainee), Pay Loader Operator (Trainee) and finally Crane Operator (Trainee). The list of rejected Ex- servicemen (Annexure R/6) has been filed by the authorities to point out that the said procedure has been adopted by the authorities and the candidates have been selected in terms of the aforesaid process. First 7 meritorious Ex- servicemen candidates have been selected for the post of Shovel Operator (Trainee), out of which 3 Ex-servicemen belongs to OBC category whereas 4 Ex-servicemen belongs to General category. Likewise, for the post of Dumper Operator (Trainee), against 43 vacancies reserved for Ex- servicemen, 18 Ex-servicemen belongs to General category, 23 Ex- servicemen belongs to OBC category, 1 Ex-serviceman belongs to SC Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:5195 12 WP-3871-2024 category, 1 Ex-serviceman belongs to ST category. Similarly, for the post of Surface Minor, against 5 vacancies reserved for Ex-servicemen, 3 Ex- servicemen belongs to General category and 2 Ex-servicemen belongs to OBC category; for the post of Dozer Operator against 7 vacancies reserved for Ex-servicemen, 3 Ex-servicemen belongs to General category & 4 Ex- servicemen belongs to OBC category. For the post of Grader Operator, the Ex-servicemen belongs to ST category and there was no reservation for ESM for the post of Pay Loader, therefore, the last candidate of ESM who was selected against two posts of Crane operator reserved for Ex-servicemen, 1 Ex-serviceman belongs to OBC category and 1 post of ESM is still vacant because none of the qualified candidates was available. This goes to show that the entire reservation roster and the guidelines issued by the Central Government have been duly followed by the authorities.
17. The record further indicates that 20% reservation for the Ex- servicemen was to be made for Group-D posts and not against the category or caste, hence the contention of the petitioner that 20% of the total posts were required to be reserved based upon each category, is misconceived. Further, the affidavit filed by the respondents-NCL on 12.12.2024 in pursuance of order dated 13.11.2024 clearly indicates that in all there were 338 vacancies including 4 backlog and out of which 65 total vacancies were reflected in Table B reserved by horizontal reservation for Ex-servicemen. Out of total 65 vacancies, 64 Ex-servicemen were selected and 57 Ex- servicemen have joined their posts which is reflected from Table A filed along with the affidavit.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53NEUTRAL CITATION NO. 2025:MPHC-JBP:5195 13 WP-3871-2024
18. The document (Annexure R/4) issued by the Government of India, Ministry of Defence, Department of Ex-servicemen Welfare dated 22.09.2020 provides as follows :
"...
2. It has also been provided in the aforesaid Rules that the Scheduled Castes, the Scheduled Tribes and the Other Backward Class candidates selected against the vacancies reserved for ex-servicemen shall be adjusted against vacancies reserved for Scheduled Castes. Scheduled Tribes and Other Backward Classes respectively. It has been further provided that if a Scheduled Caste or the Scheduled Tribe or the Other Backward Class ex-servicemen is selected against the vacancy reserved for ex-servicemen and vacancy reserved for the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes, as the case may be, is not available to adjust such ex-servicemen, he shall be adjusted in future against the next available vacancy reserved for the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes, as the case may be. As such, the panel for selection of ESM against vacancies reserved for them has to be prepared first and only after adjusting ESM selected under their quota, against the vacancies for SCs, STS and OBCS, as the case be the panel for candidates belonging to SCs/ST/OBCs against the remaining vacancies of SC/ST/OBC needs to be prepared. This process has been clearly spell out under OM No. 36012/58/92 Estt. (SCT) dated 01.12.1994 issued by DoP&T (copy enclosed).
..."
19. The aforesaid office memorandum issued by the Central Government has duly been followed by the authorities in the present case. The document (Annexure R/2) i.e. Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 clearly provides for 20% of the vacancies in each of the categories of Group D posts. It does not provide for 20% on the Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:5195 14 WP-3871-2024 entire vacancies which has been published by the authorities. Thus, it can safely be said that the authorities have adhered to the guidelines/office memorandum issued by the Central Government as well as the Employment Notification dated 07.08.2023 and there is no deviation from any of the guidelines which have been issued. The case law i.e. Saurav Yadav (supra) relied upon by the petitioner is dealing with the women reservation which is factually different and is not applicable to the facts of the present case.
20. Moreover, it cannot be said that there is any violation of Articles 14, 16 and 21 of the Constitution. The petitioner has failed to demonstrate any violation being done by the authorities in not following the memorandums issued from time to time by the Central Government or any deviation in the process of selection in terms of the impugned Employment Notification. Under these circumstances, no relief can be extended to the petitioner.
21. The petition sans merit and is accordingly dismissed. No order as to costs.
(VISHAL MISHRA) JUDGE VV Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 07-02-2025 15:47:53