Madhya Pradesh High Court
Smt. Nupur Bhatnagar vs State Of M.P. on 31 July, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P. No. 7741/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABAL PUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 31st OF JULY, 2023
WRIT PETITION No. 7741 of 2023
BETWEEN:-
SMT. NUPUR BHATNAGAR D/O LATE SHRI
BRIJENDRA BHATNAGAR, AGED ABOUT
32 YEARS, OCCUPATION: DENTAL
SURGEON R/O 43, NAYAGAON DISTRICT
JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SMT. SHOBHA MENON - SENIOR ADVOCATE WITH SHRI BHARAT
DEEP SINGH BEDI - ADVOCATE )
AND
1. STATE OF M.P. THROUGH THE
SECRETARY MINISTRY OF MEDICAL
EDUCATION, VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. NETAJI SUBHASH CHANDRA BOSE
MEDICAL COLLEGE, THROUGH ITS
DEAN JABALPUR (MADHYA
PRADESH)
3. DR. ANKITA BARODIYA ADULT,
SENIOR RESIDENT (DENTISTRY) C/O
NETAJI SUBHASH CHANDRA BOSE,
MEDICAL COLLEGE, JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI G.P. SINGH - GOVERNMENT ADVOCATE FOR
RESPONDENTS/STATE, SHRI SAURABH SUNDER - ADVOCATE FOR
RESPONDENT NO.3 )
.........................................................................................................
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has 2 W.P. No. 7741/2023 been filed against the order dated 29.03.2023 passed by respondent No.2 by which the appointment of the petitioner on the post of Senior Resident (Dentistry) was cancelled.
2. During the pendency of this petition, the respondent No.3 was appointed as Senior Resident (Dentistry) and accordingly, by amending the writ petition, the petitioner has also challenged the fresh interviews held on 11.04.2023 in terms of order dated 04.04.2023 and consequential select list dated 13.04.2023 and appointment order dated 13.04.2023 by which the respondent No.3 has been appointed as Senior Resident (Dentistry).
3. It is the case of the petitioner that she is a qualified Dental Surgeon. An advertisement was published by respondent No.2 on 02.02.2023 for appointment to the post of Senior Resident (Dentistry) at Netaji Subhash Chandra Bose Medical College, Jabalpur. Total three posts of Senior Resident in Dentistry were advertised out of which one post was for 'Un-reserved', 'OBC' and 'ST' category respectively. As per advertisement, the successful candidates were to be appointed for a tenure of three years. In the first phase, the successful candidates would be appointed for a period of one year and being satisfied with the services of such candidates, tenure would be enhanced for a period of one year and maximum it could be extended up to three years.
4. As per the advertisement, the eligibility criteria for the post of Senior Resident (Dentistry) was as under:-
(a) Candidates, who have completed their MDS course within five years from the date of submitting application for the post of Senior Resident.
(b) Candidate must be below 45 years of age; and
(c) Norms issued by the D.C.I. from time to time.3 W.P. No. 7741/2023
5. Thus, it is clear that the appointment of Senior Resident (Dentistry) was a tenure appointment.
6. It is the case of the petitioner that since petitioner was possessing all the requisite eligibility, therefore, she also participated in the process and accordingly, she was called for walk in interview on 20.02.2023. Thereafter, by order dated 22.02.2023, the petitioner was appointed to the post of Senior Resident (Dentistry) for a period of three years. The petitioner also submitted her joining on the very same day i.e. 22.02.2023. It is the case of the petitioner that by order dated 29.03.2023, the appointment of the petitioner has been truncated. It is the case of the petitioner that as per the appointment order, the services of the petitioner could have been discontinued by giving a notice of one month or a salary of one month in lieu of such notice. However, neither any notice of one month was given nor any show cause notice was issued. Even in the impugned order dated 29.03.2023, no reasons were assigned except that because of indispensible (unforeseen) reasons the appointment order was cancelled and it was also mentioned that a fresh date for interview shall be uploaded on the Website.
7. It is submitted that the respondents for the first time by filing the return have disclosed that after the petitioner was appointed, the respondent No.3 made a complaint to the effect that selection has not been made as per circular dated 17.12.2021 issued by Medical Education Department and considering the said complaint, it was decided to re-conduct the interview. It is submitted that as per the selection method as provided in circular dated 17.12.2021, priority shall be given to those Medical Officers, who have passed MD/MS/MDS from the same Medical College and thereafter, priority shall be given to Medical Officers, who have passed MD/MS/MDS from any other 4 W.P. No. 7741/2023 Government Medical College. If any post remains vacant, then the candidates, who have passed from Private Medical College, shall be considered. It is submitted that in the advertisement, the aforementioned priority clause was deliberately and consciously omitted by the respondents. In the advertisement, after specifically referring to the circular dated 17.12.2021, the minimum requirements were mentioned. Consciously the entire circular dated 17.12.2021 was not applied. Thus, it was a conscious decision on the part of the respondents to omit the priority clause. It is further submitted that without cancelling the advertisement, the respondents have not only cancelled the appointment order of the petitioner but also conducted a fresh interview, which is contrary to law.
8. Furthermore, it is well established principle of law that reasons are to be assigned in the impugned order and the same cannot be supplanted by filing an affidavit at a later stage.
9. It is further submitted that respondent No.3 after having participated in the appointment procedure was estopped from challenging the correctness of the advertisement issued by respondent No.2 and therefore, the objection raised by her should not have been entertained by the respondents.
10. To buttress her contention, the counsel for the petitioner has relied upon the judgments passed by Supreme Court in the case of State of Uttar Pradesh Vs. Karunesh Kumar and others reported in 2022 SCC OnLine SC 1706, in the case of K.A. Nagamani Vs. Indian Airlines and others reported in (2009) 5 SCC 515, in the case of Ashok Kumar and Another Vs. State of Bihar reported in (2017) 4 SCC 357, in the case of Madras Institute of Development Studies and Another Vs. K. Shivasubramaniyan and Others reported in 5 W.P. No. 7741/2023 (2016) 1 SCC 454, in the case of East Cost Railway and Another Vs. Mahadev Appa Rao and others, reported in (2010) 7 SCC 678 and in the case of Mohinder Singh Gill and Another Vs. Chief Election Commissioner, New Delhi and Others, reported in (1978) 1 SCC 405.
11. Per contra, it is submitted by counsel for respondents No.1 and 2 that the petitioner had acquired educational qualification from Private Dental College, whereas respondent No.3 had obtained her educational qualification from Government Institution and in view of priority clause as contained in circular dated 17.12.2021, the respondent No.2 was left with no other option but to cancel the appointment order and to conduct the interview afresh.
12. The counsel for respondent No.3 has also taken a similar stand.
13. Considered the submission made by counsels for the parties.
14. Whether the respondent No.3 could have raised an objection to the appointment of the petitioner thereby calling in question the correctness of the advertisement dated 02.02.2023 or not?
15. It is undisputed fact that respondent No.3 had also participated in the appointment proceedings but could not get selected.
16. Advertisement dated 02.02.2023 reads as under:
"dk;kZy; eq[; dk;Zikyu vf/kdkjh ,oa vf/k"Bkrk Lo'kklh usrkth lqHkk"kpUnz cksl esfMdy dkWyt s tcyiqj ¼e-iz-½ Øekad@Lo'kklh@LFkk@jkt@23@1021 tcyiqj fnukad 2@02@2023 foKkiu e/;izns'k 'kklu fofdRlk f'k{kk foHkkx ea=ky; Hkksiky ds Kki Øekad 3296@715@2010@ 1@55 Hkksiky fnukad 13-10-2010 ,oa lapkyuky; fpfdRlk f'k{kk] e/;izns'k Hkksiky ds vkns'k Øekad 2156&61@LFkk@jkt@2010 fnukad 20- 08-10 esa iznRr vuqefr vuqlkj Lo'kklh usrkth lqHkk"kpUnz cksl esfMdy dkWyst tcyiqj esa iwoZ ls fu/kkZfjr p;u izfØ;k ds vk/kkj ij lhfu;j jslhMsUV ds fuEukafdr fjDr inksa ij lhfer le;kof/k (Tenure) 3 o"kZ ds fy, fu/kkZfjr izk:Ik esa fnukad 10@02@2023 lk;a 05%30 cts rd vf/k"Bkrk dk;kZy; fpfdRlk egkfon~;ky; tcyiqj e-iz- 482003 esa vkosnu vkeaf=r fd, tkrs gS %& 6 W.P. No. 7741/2023 Senior Resident S.No. SUBJECT UR OBC ST SC Total Vaca nt 1 DENTISTRY 01 01 01 - 03 dqy ;ksx % 01 01 01 & 03 uksV %& 1- vkj{k.k 'kklu }kjk izkIr funsZ'kkuqlkj jgsxkA 2- inksa dh fjfDr;ksa dh la[;k esa deh ;k o`f) gks ldrh gSA 3- vxj vkjf{kr oxZ ds fpfdRld ugh feyrs gS rks ml fLFkfr esa lhVsa vuqlfw pr tutkfr] vuqlfw pr tkfr] vU; fiNM+s oxZ] vukjf{kr Js.kh ds Øe ls miyC/k fpfdRldksa ls Hkjh tk ldsxhA 4- vkosnu i= izLrqr djus ls vH;kFkhZ lk{kkRdkj dk ik= ugh gks tk;sxkA 5- mEehnokj dks 'kS{kf.kd ;ksX;rk ds izek.k i=ksa dh lR;kfir Nk;kizfr layXu djuk vfuok;Z gksxkA 'krsZ %& 1- vof/k&lhfu;j jslhMsUV dh lsok&vof/k (Tenure) rhu o"kZ dh gksxhA izFker% 01 o"kZ gsrq fu;qfDr dh tkosxhA rRi'pkr lsok;sa larks"ktud ik;s tkus ij 01 o"kZ c<+krs gq, vf/kdre 3 o"kZ rd c<+kbZ tk ldsxhA 2- fu;qfDr dk rjhdk %& ;ksX; vH;kfFkZ;ksa dk p;u ,e-Mh-,l- lHkh izksQs'kuy ;wfuoflZVh ijh{kkvksa ds vadks ,oa lk{kkRdkj mijkar fd;k tkosxkA fu;qfDr p;u lfefr dh vuq'kalk ij fu;qfDrdrkZ vf/kdkjh }kjk dh tkosxhA 3- vkosnu 'kqYd %& lhfu;j jslhMsUV ds in gsrq vukjf{kr laoxZ ds vH;kfFkZ;ksa dks vius vkosnu ds lkFk :- 700@& ¼lkr lkS½ ,oa vkjf{kr oxZ ds vH;kfFkZ;ksa dks :Ik;sa&500@& ¼ikap lkS½ jkf'k dk fMekaM MªkQ~V ^^eq[; dk;Zikyu vf/kdkjh ] ,oa vf/k"Bkrk Lok'kklh usrk th lqHkk"k pUnz cksl esfMdy dkWyst tcyiqj** ds uke ns; gks izLrqr djuk gksxkA cSad MªkQ~V ds ihNs vH;kFkhZ dks viuk iwjk uke] irk o fo"k; rFkk uEcj ;fn dksbZ gks rks fy[kuk vko';d gksxkA fdlh Hkh voLFkk esa jkf'k ykSVk;h ugh tkosxhA vFkok mijksDrkuqlkj jkf'k vf/k"Bkrk usrkth lqHkk"k pUnz cksl fpfdRlk egkfon~;ky; tcyiqj ds [kkrs esa tek tek dh tk ldrh gSA jkf'k tek dj jlhn ewyr% vkosnu ds lkFk layXu djsAa Account Details A/c Holder :- CEO/Dean N.S.C.B. Medical College Jabalpur, Bank Name - State Bank of India Medical College Branch, A/c No. 10080132574.
IFSC Code :- SBIN0001445 fu;e ,oa funsZ'k %& e-iz- 'kklu] fpfdRlk f'k{kk foHkkx] e-iz- Hkksiky ds ifji= Ø- ,Q 2&42@07@1@ipiu] Hkksiky] fnukads 17-12-2021 }kjk tkjh lhfu;j 7 W.P. No. 7741/2023 jslhMsVa dh p;u izfØ;k ,oa ik=rk fuEukuqlkj gksxh % lhfu;j jslhMsUVl ik=rk % ¼i½ lhfu;j jslhMsUV ds in gsrq vkosnu tek djus dh frfFk ds ikap ¼5½ o"kZ ds vUnj ,e-Mh-,l- ikB~;Øe mRrh.kZ djus okys fpfdRld ik= gksaxsA ¼ii½ fpfdRld dh mez 45 o"kZ ls de gksuh pkfg,A ¼iii½ Mh-lh- vkbZ- }kjk le;≤ ij tkjh vgZrk;sa Lor% ykxw gksxhA vik=rk % ¼i½ ,e-Mh-,l- ikB~;Øe dh v/;;ujr vof/k esa vf/k"Bkrk@izkpk;Z] fpfdRlk@nUr fpfdRlk egkfon~;ky; }kjk tkjh funsZ'kksa dk mYya?ku dj fpfdRldh; dk;Z u fd;k tkuk vFkok egkfon~;ky; ls vukf/kd`r :i ls vuqifLFkr jgukA ¼ii½ fof/k }kjk LFkkfir fu;eksa ds fo:) fdlh vof/k ds fy;s fpfdRldh;
dk;Z ls vukf/kd`r :Ik ls vuqifLFkr jgukA ¼iii½ ikB~;Øe vof/k esa Nk=@Nk=k ds fo:) vijkf/kd izdj.k lafLFkr gksukA ¼iv½ ikB~;Øe vof/k esa inh; drZO;ksa esa ykijokgh] vf'k"Vrk] v'kksHkuh;
O;ogkj vFkok vuq'kklughurk ik;s tkus ijA ¼v½ fcUnq ¼i½ ls ¼iv½ esa nf'kZr dkj.kksa ls fufdRldh; dk;Z ls vuqifLFkr jgus dh fLFkfr es]a ,sls Nk=@Nk=k,a fpfdRlk f'k{kk foHkkx ds v/khu lapkfyr fdlh laLFkk esa lsok ds fy;s ik= ugha ekus tk;saxsA p;u fof/k % ¼i½ vf/k"Bkrk dh v/;{krk esa p;u lfefr }kjk lk{kkRdkj ds ek/;e ls fpfdRldksa dk p;u fd;k tk;sxkA ¼ii½ fpfdRld }kjk ftl fo"k; esa ,e-Mh-,l- fd;k gS] mlh fo"k; ds fy;s ik=rk gksxhA ¼iii½ fofHkUu fo"k;ksa esa mRrh.kZ ,e-Mh-,l- mEehnokjksa dk p;u ih-th- ¼,e-
Mh-,ol-½ ijh{kk ds izkIrkad ds vk/kkj ij rS;kj dh xbZ esfjV ds vuqlkj gksxkA ¼iv½ p;fur lhfu;j jslhMsUV dks futh izSfDVl dh ik=rk ugah gksxhA VsU;qvj (Tenure) :
¼i½ VsU;qvj dh vof/k 03 o"kZ gksxhA
¼ii½ 01 o"kZ dh VsU;ksj vof/k iw.kZ gksus ij foHkkxk/;{k }kjk lacaf/kr dk
dk;Z larks"kizn gksus lEcU/kh dh xbZ vuq'kalk ds vk/kkj ij vkxkeh o"kZ ds fy;s c<+k;k tk;sxkA ¼iii½ foHkkx esa inLFk lhfu;j jslhMsUV ds lEcU/k esa lacaf/kr foHkkxk/;{k dh izfrdwy fVIi.kh izkIr gksus ij vf/k"Bkrk dks lacaf/kr foHkkxk/;{k] lEcn~/k fpfdRlky; ds v/kh{kd rFkk 02 ofj"Bre izk/;kid dh xfBr lfefr ds ijke'kZ ls] ,sls lhfu;j jslhMsUV dh fu;qfDr fcuk fdlh iwoZ lwpuk ds rRdky izHkko ls lekIr djus ds vf/kdkj iznRr gksxkA bl izdkj ls i`Fkd fd;s x;s fpfdRld dks bl in gsrq iqu% vkosnu djus dh ik=rk ugha gksxhA 8 W.P. No. 7741/2023 ¼iv½ foHkkxk/;{k }kjk lacaf/kr fpfdRld ds vukf/kd`r :Ik ls vodk'k ij jgus vFkok dk;Z larks"kizn u gksus laca/kh izfrosnu izLrqr djus ij mldh lsok;sa rRdky izHkko ls lekIr djus ds vf/kdkj vf/k"Bkrk dks iznRr gksaxsA vkj{k.k % ¼i½ jkT; 'kklu }kjk vn~;ru fu/kkZfjr vkj{k.k O;oLFkk ykxw gksxhA ¼ii½ vkjf{kr oxZ ds fjfDr;ksa ds fo:) fpfdRld miyC/k u gksus ij vuqlfw pr tutkfr] vuqlfw pr tkfr] vU; fiNM+k oxZ] lkekU; Js.kh ds Øe ls miyC/k fpfdRldksa ls Hkjh tk ldsxhA vodk'k % lhfu;j jslhMsUV dks izfr lIrkg 01 fnol ds vodk'k dh ik=rk gksxh rFkk izfro"kZ 12 fnol ds vkdfLed vodk'k dh ik=rk gksxh] lkIrkfgd vodk'k lafpr ugha fd;k tk ldsxkA vodk'k ds leLr izdj.kksa ij vf/k"Bkrk dk fu.kZ; vafre gksxkA lhfu;j jslhMsUV ds in ij jgrs gq;s ewy in ls tqM+s fdlh vU; izdkj ds vodk'k dh ik=rk ugha gksxhA izn'kZdksa@V;qVjks@a fpfdRlk dk lhfu;j jslhMsUV esa p;u % ¼i½ lhfu;j jslhMsUV ds in gsrq vkosnu tek djus dh frfFk ds ikap ¼5½ o"kZ ds vUnj ,e-Mh-,l- ikB~;Øe mRrh.kZ djus okys fpfdRld ik= gksx a As ¼ii½ Mh-lh-vkbZ- }kjk le;≤ ij tkjh vgZrk;sa Lor% ykxw gksxhA ¼iii½ ftl fo"k; esa ,e-Mh-,l- fd;k gS] mls flQZ mlh fo"k; ds fy, lhfu;j jslhMsalh dh ik=rk jgsxhA lhV dk vkj{k.k % ¼i½ jkT; 'kklu }kjk vn~;ru fu/kkZfjr vkj{k.k O;oLFkk ykxw gksxhA ¼ii½ e/;izns'k ds ewy fuoklh dks gh vkj{k.k dk ykHk fn;k tkosxkA ;k=k HkRrk % Lkk{kkRdkj ds fy;s fdlh Hkh vH;kFkhZ dks ;k=k HkRrk bl laLFkk }kjk ugha fn;k tk;sxk mUgsa Lo;a ds O;; ij ;k=k djuk gksxkA vU; 'krsZ % 1- vkjf{kr Js.kh ds mEehnokjksa dks rRlaca/k dk izek.k i= fu/kkZfjr izk:Ik esa l{ke vf/kdkjh }kjk iznRr] dh lR;kfir Nk;kizfr layXu djuk vfuok;Z gSA 2- lsok dh vU; 'krsZ fu;qfDr i= esa n'kkZ;s vuqlkj ca/kudkjh gksxhA 3- ;fn dksbZ vkosnd fdlh laLFkk esa iwoZ ls dk;Zjr gS rks mls vkosnu ds le; gh fu;ksDrk dk vukifr@R;kxi= Lohd`r izek.k i= izLrqr djuk vfuok;Z gksxkA 4- mEehnokj dks e-iz- jkT; MsVa y dkSafly Hkksiky vFkok MsVa y dkSafly vkWQ bafM;k ls iath;u djkuk vfuok;Z gksxkA 5- eq[; dk;Zikyu vf/kdkjh@vf/k"Bkrk }kjk lhfu;j jslhMsUV dh foHkkxksa esa la[;k dk;Z vko';drk vuqlkj le;≤ ij ifjofrZr fd;k tk ldsxkA lk{kkRdkj ds le; mijksDr leLr izek.k i=ksa dh ewy izfr;kW izLrqr djuh gksxhA 9 W.P. No. 7741/2023 eq[; dk;Zikyu vf/kdkjh ,oa vf/k"Bkrk usrkth lqHkk"k pUnz cksl ¼Lo'kklh lfefr½ esfMdy dkyst tcyiqj i`-Øekad@Lo'kklh@LFkk@jkt@23@ tcyiqj fnukad 2@02@2023 izfrfyfi %& 1- vk;qDr fpfdRlk f'k{kk e-iz- HkksikyA 2- LVsuks dh vksj Hkst dj ys[k gS fd fpfdRlk egkfon~;ky; ds osclkbZV ij viyksM djus dh dk;Zokgh djsAa 3- fpfdRlk egkfon~;ky; ds uksfVl cksMZ esa pLik gsrAq eq[; dk;Zikyu vf/kdkjh ,oa vf/k"Bkrk usrkth lqHkk"k pUnz cksl ¼Lo'kklh lfefr½ esfMdy dkyst tcyiqj"
17. The undisputed fact is that priority clause was not mentioned in the advertisement, whereas it is the case of respondent No.3 that in view of circular dated 17.12.2021, priority should have been given to the Medical Officers, who had passed MDS examination from a Government Medical College and the name of a candidates, who had passed MDS examination from a Private Medical College could have been considered only if the vacancies were left.
18. The respondent No.2 has not pointed out the guidelines of M.C.I. to show that the aforesaid priority clause was included in circular dated 17.12.2021 on the basis of such guidelines. Accordingly, the counsel for the respondents No.1 and 2 was directed to address this Court on the question of validity of priority clause as mentioned in circular dated 17.12.2021.
19. It is fairly conceded by counsel for respondents No.1 and 2 that the return is completely silent in that regard. He also admitted that the 10 W.P. No. 7741/2023 basis for incorporating the priority clause in circular dated 17.12.2021 is also not disclosed in the return. However, he tried to submit that since the validity of circular dated 17.12.2021 has not been challenged therefore, it was not necessary for respondents No.1 and 2 to address on the aforesaid aspect.
20. Considered the submissions made by counsel for respondents.
21. It is the case of the petitioner that the respondents had taken a conscious decision not to incorporate the priority clause in the advertisement. Under these circumstances, this Court is of the considered opinion that whether the validity of circular dated 17.12.2021 is challenged or not, the respondents were under obligation to explain the importance and correctness of the priority clause as mentioned in circular dated 17.12.2021 because it was the executive council for respondent No.2, who had decided to give up that priority clause by not mentioning the same in the advertisement.
22. As per the priority clause, a priority is to be given to the candidates, who had passed their MDS examination from the same Medical Institution. A priority was also to be given to the candidates, who had passed their MDS examination from Government Medical Colleges and only if any vacancy is left, then the candidates, who had passed their MDS from Private Medical Colleges were entitled for consideration of their case.
23. The counsel for the State is not in a position to point out the reasonableness behind the aforesaid priority clause. Why the candidates, who have passed their MDS examination from Private Medical Colleges were to be ignored has not been clarified. Why the priority to the candidates having passed their MDS from Government Medical Colleges was to be given has also not been explained.
11 W.P. No. 7741/202324. Undisputedly, the Government Medical Colleges also require recognition by M.C.I. and similarly the Private Medical Colleges also require recognition by M.C.I. Periodical inspections are done by M.C.I. and only after getting satisfied that the college fulfills all the minimum requirements, recognition is granted by M.C.I. If a Private Medical College is fulfilling all the minimum requirements and it has been approved by M.C.I. that all the facilities as per the provisions of law are available in the institution, then why the students, who had passed their MDS examination from Private Medical Colleges are being treated differently? The counsel for the State could not explain as to how the students having passed their MDS from Government Medical Colleges, will form a class in itself.
25. It is true that fundamental right as enshrined under Articles 14 and 16 of Constitution of India is not absolute and is subject to reasonable classification/restriction but the classification has to be an intelligible classification having reasonable nexus with the object sought to be achieved. What is the basis of treating the students of Private Medical Colleges not at par with the students of Government Medical Colleges? Why the students, who have passed their MDS from Government Medical Colleges required priority, over and above the students, who have passed their MDS from Private Medical Colleges?
26. Since counsel for the State could not satisfy this Court with regard to the reasonableness behind the priority clause, therefore, this Court is of the considered opinion that if respondent No.2 had decided to give up the priority clause while issuing advertisement, it cannot be said that it was a mistake on the part of respondent No.2.
27. Furthermore, the respondents have not assigned any reason for cancellation of appointment of the petitioner accept by mentioning that 12 W.P. No. 7741/2023 for unavoidable/ unforeseen/indispensible reason the appointment is being cancelled. No other reason was assigned.
28. So far as, the submission with regard to non-assignment of any reason in the impugned order for cancellation of interview as well as the appointment of the petitioner is concerned, the law in this regard is no more res integra.
29. The Supreme Court in the case of Mohinder Singh Gill (supra) has held as under:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, 1951 SCC 1088 : AIR 1952 SC 16] :
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older.
A CAVEAT 13 W.P. No. 7741/2023
30. Thus, the authorities must disclose the reason in the impugned order itself and the reasons cannot be supplanted by filing a supplementary affidavit. Thus, the impugned order dated 29.03.2023 is bad on the said ground also.
31. It is next contended by counsel for the petitioner that respondent No. 3 had participated in the interview which took place on 20.02.2023 without any objection to the conditions mentioned in the advertisement. Only after having failed to succeed in the said interview, it appears that the respondent No. 3 started making complaints. It is submitted that after having participated in the interview, respondent No. 3 cannot be permitted to approbate and reprobate.
32. The advertisement which was issued by the respondents was crystal clear and it was clear that the respondents No. 1 & 2 have given up the priority clause in the advertisement. If the respondent No. 3 had any objection to exclusion of the priority clause, then she should have raised the said objection prior to holding of walk in interview but once, respondent No. 3 had participated in the interview proceedings without any protest and without reserving her right to challenge the advertisement, then respondent No. 3 was estopped from challenging the advertisement at a later stage.
33. The Supreme Court in the case of State of Uttar Pradesh Vs. Karunesh Kumar and Others, reported in 2022 SCC Online SC 1706 has held as under:-
"20. We have already placed the relevant rules and considered their import. Clause 15(1) of the 1978 Rules deals with a Selection Committee, while we are concerned with the recruitment made by the Selection Commission statutorily created by an enactment, the 2014 Act. Under the 1978 Rules, no written examination was 14 W.P. No. 7741/2023 contemplated as against a mere interview. This was consciously given a go-by, to the knowledge of the candidates who willingly participated in the selection process by taking the written examination, and thereafter, the interview. This process was adopted in tune with the 2015 Rules, and in terms of the powers conferred to the Commission under the 2014 Act. Therefore, the 1978 Rules are put into cold storage qua a selection even at the time of conducting the written examination.
21. A candidate who has participated in the selection process adopted under the 2015 Rules is estopped and has acquiesced himself from questioning it thereafter, as held by this Court in the case of Anupal Singh (supra):
"55. Having participated in the interview, the private respondents cannot challenge the Office Memorandum dated 12-10-2014 and the selection. On behalf of the appellants, it was contended that after the revised Notification dated 12-10-2014, the private respondents participated in the interview without protest and only after the result was announced and finding that they were not selected, the private respondents chose to challenge the revised Notification dated 12-10-2014 and the private respondents are estopped from challenging the selection process. It is a settled law that a person having consciously participated in the interview cannot turn around and challenge the selection process.
56. Observing that the result of the interview cannot be challenged by a candidate who has participated in the interview and has taken the chance to get selected at the said interview and ultimately, finds himself to be 15 W.P. No. 7741/2023 unsuccessful, in Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712], it was held as under : (SCC p. 493, para 9) "9. ... 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."
57. In K.H. Siraj v. High Court of Kerala [(2006) 6 SCC 395 : 2006 SCC (L&S) 1345], it was held as under :
(SCC p. 426, para 73) "73. The appellant-petitioners having participated in the interview in this background, it is not open to the appellant-
petitioners to turn round thereafter when they failed at the interview and contend that the provision of a 16 W.P. No. 7741/2023 minimum mark for the interview was not proper."
58. In Union of India v. S. Vinodh Kumar [(2007) 8 SCC 100 : (2007) 2 SCC (L&S) 792], it was held as under :
(SCC p. 107, para 19) "19. In Chandra Prakash Tiwari v. Shakuntala Shukla [(2002) 6 SCC 127 : 2002 SCC (L&S) 830] ....
xxx xxx xxx It was further observed : (SCC p. 149, para
34) '34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, 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 there was some lacuna in the process."
59. Same principle was reiterated in Sadananda Halo v. Momtaz Ali Sheikh [(2008) 4 SCC 619 : (2008) 2 SCC (L&S) 9] wherein, it was held as under : (SCC pp. 645-46, para 59) "59. It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course the exceptions carved out by this Court to this general rule.
This position was reiterated by 17 W.P. No. 7741/2023 this Court in its latest judgment in Union of India v. S. Vinodh Kumar [(2007) 8 SCC 100 : (2007) 2 SCC (L&S) 792] .... The Court also referred to the judgment in Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644], where it has been held specifically that when a candidate appears in the examination without protest and subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise."
22. In the case at hand, the un-selected candidates want to press into service a part of the 1978 Rules while accepting the 2015 Rules. Such a selective adoption is not permissible under law, as no party can be allowed to approbate or reprobate, as held by this Court in Union of India v. N. Murugesan, (2022) 2 SCC 25:
"Approbate and reprobate
26. These phrases are borrowed from the Scots law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while 18 W.P. No. 7741/2023 questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally.
xxx xxx xxx 27.2. State of Punjab v. Dhanjit Singh Sandhu [(2014) 15 SCC 144] : (SCC pp. 153-54, paras 22-23 & 25-26) "22. The doctrine of "approbate and reprobate" is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide CIT v. MR. P. Firm Muar [AIR 1965 SC 1216].)
23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground.
(Vide Maharashtra SRTC v. Balwant Regular Motor Service [AIR 1969 SC 329].) In R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC 683] this Court has observed as under : (R.N. Gosain case [(1992) 4 SCC 683], SCC pp. 687-88, para 10) '10. Law does not permit a person to both approbate and reprobate. This 19 W.P. No. 7741/2023 principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that 'a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage'.' xxx xxx xxx
25. The Supreme Court in Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd. [(2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153], made an observation that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.
26. It is evident that the doctrine of election is based on the rule of estoppel, the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak, from asserting a right which he would have otherwise had."
34. The Supreme Court in the case of K.A. Nagamani (supra) has held as under:-
20 W.P. No. 7741/2023"53. Yet another aspect of the matter: that the appellant admittedly had participated in the similar selection process for erstwhile Grades 15 and 16, Manager (Maintenance/Systems) and Senior Manager (Maintenance/Systems) respectively. The Corporation had given adequate opportunity to the appellant to compete with all other eligible candidates at the selection for consideration of the case of all eligible candidates to the post in question.
54. The Corporation did not violate the right to equality guaranteed under Articles 14 and 16 of the Constitution. The appellant having participated in the selection process along with the contesting respondents without any demur or protest cannot be allowed to turn round and question the very same process having failed to qualify for the promotion."
35. The Supreme Court in the case of Ashok Kumar (supra) has held as under:
"13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla [Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 : 2002 SCC (L&S) 830] , this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar [Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100 :
(2007) 2 SCC (L&S) 792] , this Court held that :21 W.P. No. 7741/2023
(SCC p. 107, para 18) "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.
(See Munindra Kumar v. Rajiv Govil [Munindra Kumar v. Rajiv Govil, (1991) 3 SCC 368 : 1991 SCC (L&S) 1052] and Rashmi Mishra v. M.P. Public Service Commission [Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724 : (2007) 2 SCC (L&S) 345] .)"
14. The same view was reiterated in Amlan Jyoti Borooah [Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227 : (2009) 1 SCC (L&S) 627] wherein it was held to be well settled that the candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful."
36. The Supreme Court in the case of K. Shivasubramaniyan (supra) has held as under:
"13. 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 that he 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.
14. The question as to whether a person who consciously takes part in the process of selection 22 W.P. No. 7741/2023 can turn around and question the method of selection is no longer res integra."
37. Thus, it is clear that after having participated in the interview which was held on 20.02.2023 without any objection to the exclusion of priority clause in the advertisement, the respondent No. 3 was estopped for challenging the appointment of Senior Resident (Dentistry) on the ground of requirement of priority clause.
38. Furthermore, it is clear from the photocopy of the record, which was provided by the counsel for the State that respondent No. 3 made a complaint on 02.03.2023 and Dean, Netaji Subhash Chandra Bose Medical College, Jabalpur by his letter dated 17.03.2023, rejected the said complaint on the ground that it has not been presented in the office. It appears that thereafter, on 21.03.2023, Dean, Netaji Subhash Chandra Bose Medical College, Jabalpur directed the committee to go through the documents submitted by the candidates and after evaluating the same, a fresh interview report be produced. The direction to the committee was to consider the case in light of the circular dated 24.12.2021. Once, the complaint made by respondent No. 3 was already rejected by order dated 17.03.2023, then it is not clear as to what prompted the Dean, Netaji Subhash Chandra Bose Medical College, Jabalpur to direct the committee to reconsider the entire aspect. However, the committee by its report dated 27.03.2023 recommended for holding the interview afresh.
39. However, the reasons for such report/recommendation were not disclosed in report dated 27.03.2023, which reads as under:-
^^fnukad 27@03@2023 izfr] ekuuh; vf/k"Bkrk egksn;k 23 W.P. No. 7741/2023 usrkth lqHkk"k pUnz cksl esfMdy dkyst tcyiqj lanHkZ%& dk;kZy; dk i= Øekad 2668 fnukad 21@03@2023 egksn;k] &&&&&00&&&&& dk;kZy; foKfIr Øekad@LFkk-@jkt@1939 tcyiqj 24@02@2023 ds rgr~ esfMdy dkyst tcyiqj ds narjksx foHkkx esa fjDr lhfu;j jsftMsVa ds in dh iwfrZ gsrq dk;kZyhu vkns'k Øekad@LFkk-@jkt@23@1645 tcyiqj fnukad 17@02@2023 ds rgr xfBr lk{kkRdkj lfefr }kjk fnukad 20@02@2023 dks lk{kkRdkj vk;ksftr fd;k x;k FkkA vkids lanfHkZr i= ds rgr izkIr funsZ'kkuqlkj dk;kZy; vk;qDr fpfdRlk f'k{kk foHkkx e-iz- Hkksiky ds i= Øekad 1200&02@LFkk-@jkt@2021 Hkksiky fnukad 24@12@2021 ds rgr tkjh fn'kk&funsZ'kksa dks ikyu djrs gq, mDr lk{kkRdkj esa mifLFkr vH;fFkZ;ksa ds nLrkostksa dk voyksdu ewY;kadu fd;s tkus ds Ik'pkr~ lfefr }kjk loZ lEefr ls iqu% lk{kkRdkj djkus dh vuq'kalk dh tkrh gSA vkidh vksj vuq'kalk gsrq vxzsf'krA mDr lfefr esa fuEufyf[kr lnL; mifLFkr gq,A 1- MkW- vjfoUn 'kekZ ¼lnL;½] la;qDr lapkyd ,oa v/kh{kd esfMdy dkyst tcyiqjA 2- MkW- y{eh flaxksfr;k ¼lnL;½] izk/;kid jsfM;ksFksjsih ,oa v/kh{kd dSalj fpfdRlky;A 3- MkW- ijost vgen fln~nhdh ¼lnL;½] izk/;kid us= jksx foHkkx esfMdy dkyst tcyiqjA 4- MkW- ,p-,l- ejdke foHkkxk/;{k nUrjksx foHkkx esfMdy dkyst tcyiqjA 5- MkW- iz.ko ijk'kj ¼fo"k; fo'ks"kK½ nUrjksx foHkkx esfMdy dkyst tcyiqjA** 24 W.P. No. 7741/2023
40. Accordingly, by order dated 29.03.2023, the appointment order of the petitioner dated 21.02.2023 was cancelled for indispensible/unforeseen/unavoidable circumstances. From the record, it is clear that even for making recommendation for holding a fresh interview, no reason was assigned.
41. It is the case of the respondents that since, the priority clause was omitted in the advertisement, therefore, a fresh interview was held. However, it is fairly conceded that the advertisement has not been cancelled. It is really surprising that on one hand the respondents are claiming that defective advertisement was issued and at same time they have not cancelled the said advertisement.
42. The present scenario is that the advertisement in question still holds field, which do not contain any priority clause and, therefore, the respondents cannot change the rules of game in the mid way by conducting the interview afresh in light of the priority clause as contained in Circular dated 17.12.2021.
43. Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that the order dated 29.03.2023 passed by respondent No.2 by which the appointment of the petitioner as Senior Resident (Dentistry) was cancelled cannot be given the stamp of approval. Similarly, the fresh interview conducted by the respondents cannot approved.
44. As a consequence thereof, the fresh interview conducted by the respondent No. 2 on 11.04.2023 is hereby set aside.
45. As a consequence thereof, the appointment order of respondent No.3 dated 13.04.2023 on the post of Senior Resident (Dentistry) Netaji Subhash Chandra Bose Medical College, Jabalpur is also hereby 25 W.P. No. 7741/2023 quashed.
46. The appointment order of the petitioner dated 21.02.2023 is hereby restored.
47. With aforesaid observation, the petition is finally disposed of.
48. No order as to costs.
(G.S. AHLUWALIA) JUDGE ashish ASHISH KUMAR LILHARE 2023.08.03 18:00:15 +05'30'