Chattisgarh High Court
Kajal Banjare vs State Of Chhattisgarh on 2 January, 2023
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP(S) No. 4317 of 2020
Order Reserved on 16/09/2022
Order Delivered on 02/01/2023
Kajal Banjare D/o. Shri Jaipal Singh, Aged about 24 years, R/o. Near
R.K. General Store, Sai Nagar, Uslapur, Bilaspur, Police Chowki- Sakri,
District Bilaspur (CG)
---------PETITIONER
VERSUS
1. State of Chhattisgarh Through The Secretary, Law and Legislative
Department, Mahanadi Bhawan, Mantralaya, Atal Nagar, New Raipur
(Chhattisgarh)
2. District And Sessions Judge, Raigarh District Raigarh (CG)
3. Chairman, Selection Committee O/o. District and Sessions Judge,
Raigarh, District Raigarh (CG)
4. Kameshwari, D/o. Shri Samaru Ram, Stenographer(Hindi) in the O/o.
District and Sessions Judge, Raigarh, District Raigarh (CG)
----------RESPONDENTS
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For the Petitioner : Mr. Sunil Kumar Soni, Advocate For the State : Mr. Ravi Bhagat, Dy. A. General For the respondent No. 2 and3 : Mr. Manoj Paranjpe, Advocate
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Hon'ble Shri Justice Narendra Kumar Vyas CAV Order
1. The petitioner has filed the present petition assailing the appointment order dated 09.12.2019 (Annexure P/4) issued in favour of respondent no. 4 appointing her on the post of Stenographer (Hindi) by District and Sessions Judge, Raigarh.
2. Facts of the case, in short, are that on 04.10.2019 an advertisement was issued by the office of District and Sessions Judge, Raigarh for 2 appointment on the post of Assistant Programmer, Stenographer English and Hindi and Assistant Grade-III. The respondent No. 2 and 3 after receiving application for the sanctioned posts, notified the date of the examination which was scheduled on 16.11.2019, 17.11.2019 and 24.11.2019. As per the advertisement, four posts for stenographer (Hindi) were notified out of which 1 post was for the unreserved category and one post each was reserved for Scheduled Caste, Scheduled Tribe and Other Backward Class candidates.
3. The petitioner had participated in the selection process. Learned counsel for the petitioner would submit that earlier the examiner has found that the petitioner has committed 20 mistakes while transcribing the dictation given to her, but later on it has been found that petitioner has committed three more mistakes, thus she has committed 23 mistakes, therefore, she was not selected and respondent No. 4 has been selected on the post of Stenographer (Hindi). It has been further contended that the petitioner applied for answer sheet on 14.09.2020 under Right to Information Act, 2005 but no satisfactory information was given to her, therefore, she preferred an appeal under Section 19(1) of RTI Act, 2005 but the said appeal was dismissed by the Appellate Authority on 25.01.2020. Thereafter on 27.01.2020 the petitioner has submitted another application under the RTI Act, In response to the same on 05.02.2020, question paper, transcription and computer typed answer book were provided to the petitioner.
4. Learned counsel for the petitioner would submit that from bare perusal of computer typed answer book of the petitioner would reveal that earlier 20 mistakes have been counted and subsequently it has been converted into 23 mistakes and there was tampering in the answer 3 sheet of the petitioner which amounts to interference in the recruitment process just to give due weightage to respondent No. 4. He would further submit that grave illegality was done in the second stage of the selection process, meaning thereby that the conditions were divided into two parts i.e. the first part has to be written on the shorthand note book as per the dictation within 5 minutes by the candidates @ speed of 100 WPM and in the second part candidates have to type the same on computer within 30 minutes. He would further submit that earlier 20 mistakes were counted by some other person subsequently 23 mistakes was counted by some other person in the typing. He would submit that the application filed by the petitioner regarding educational qualification and disclosure of the transcript note of the respondent No.4 have not been provided by the respondents for which an interim application is pending before the Court but that application has not been decided by this Court. He would further submit that the respondents have adopted different yardstick for appointing the respondent No. 4, as such the whole selection process initiated by the respondents deserves to be set aside. Learned counsel for the petitioner has submitted written submission on 27.09.2022 wherein he has reiterated the contention already raised and drew the attention of this Court towards the judgment passed by the Hon'ble Supreme Court in the matter of Praveen Singh vs. State of Punjab AIR 2001 SC 152 and would submit that there is arbitrariness on the part of the respondents authorities, therefore, the whole selection is bad in law and would refer paragraph 1 of the judgment in case of Praveen Singh (Supra), which reads as under:-
1. Arbitrariness being opposed to reasonableness 4 is an ante- thesis to law. There cannot, however, be any exact definition of arbitrariness neither can there be any straight jacket formula evolved therefore, since the same is dependent on the varying facts and circumstances of each case.
8.While it is true that the administrative or quasi-judicial authority clothed with the power of selection and appointment ought to be left unfettered in adaptation of procedural aspect but that does not however mean and imply that the same would be made available to an employer at the cost of fair play, good conscience and equity.
5. He would further draw attention of this Court towards the judgment in the matter of Kusheshwar Prasad Singh v. State of Bihar (2007) 11 SCC 447, the Hon'ble Supreme Court has held as under:-
11. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrong doer ought not to be permitted to make a profit out of his own wrong".
6. On the other hand, State has filed their return in which they have stated that the main relief has been sought against the respondent No.2 and 3, therefore, they are not required to file any detailed return and would pray for dismissal of the writ petition.
7. Learned counsel for respondent No. 2 and 3 would submit that the selection of the candidates under the recruitment procedure was done under the strict supervision of the experts and a fair and transparent procedure has been adopted for selection. He would further submit that the appointment order of respondent No. 4 was issued on 09.12.2019, whereas the present petition has been filed by the 5 petitioner on 12.10.2020 though petitioner is aware that she is at serial No. 1 in the waiting list and duly participated in the selection process without any objection, therefore, she is estopped from challenging the selection process at later point of stage. He would further submit that on comparison of answer sheet of the petitioner and respondent No.4, it is clear that 20 mistakes have been typed by the petitioner and 14 mistakes have been typed by respondent No.4 and after final checking of answer sheet 3 more mistakes have been found in the petitioner's answer sheet and 5 more mistakes have been found in the answer sheet of respondent No.4. if the mistakes found in the first checking and in final checking, it comes to 23 mistakes whereas with regard to respondent No. 4, in the first round 14 mistakes and in the final checking 5 more mistakes which comes to 19 mistakes in comparison with the petitioner which is less in number. Thus, respondent No. 4 is more meritorious than the petitioner. The allegation made by the petitioner that there is tampering in the answer sheet without foundation is false as such denied in extensively. He would further submit that so far as non-supply of information and dismissal of the appeal by the authorities, this is not the correct forum where this issue can be agitated. Under Right to Information Act 2005, a separate forum has been constituted where the petitioner can agitate this issue, therefore, the contention raised by the petitioner with regard to non- supply of the information is not relevant for deciding the conservatory raised in this petition. He would further submit that the selection process has been done strictly in accordance with the law and would pray for dismissal of the writ petition.
8. The respondent No. 2 and 3 have filed their written submission on 6 29.09.2022 reiterating the same stand which they have raised in the return. Learned counsel for respondent No. 2 and 3 would draw the attention of this Court towards the judgment passed by the Hon'ble Supreme Court in the matter of Ran Vijay Singh vs. State of U.P. 2018 (2) SCC 357 and would submit that re-checking was done by the expert and the same should be given due weightage and this Court is not expert of the subject and if the expert has examined the mistake committed by the petitioner and respondent No. 4, therefore, interference of this Court is very limited as this Court cannot act as Appellate Authority over the decision/opinion given by the experts and would pray for dismissal of the writ petition.
9. I have heard learned counsel for the parties and perused the records.
10. The point requires to be determined by this Court is whether the procedure adopted by respondent No. 2 and 3 for selection suffers from arbitrariness, malafide or favouritism and whether this Court can act as Appellate Authority over the opinion/decision of the expert with regard to mistake committed by the petitioner and respondent No.4.
11. To determine the first question, it is necessary to go through the documents annexed with the writ petition. The record would demonstrate that in the first round of checking, it is found that the petitioner has committed 20 mistakes and in subsequent checking done by the experts, it has been found that 3 more mistakes were committed by the petitioner, thus she has committed 23 mistakes whereas the respondent No. 4 has done 14 and 5 mistakes, thus she committed 19 mistakes.
12. Record would further show that similar treatment has been given to respondent No. 4 and the petitioner, therefore, it cannot be said that 7 the respondents No. 2 and 3 have acted in arbitrariness, malafide or shown favouritism to the respondent No.4. From perusal of the record, it is quite vivid that the respondent No. 4 was in better position than the petitioner. Since the uniform procedure has been adopted by the respondent authorities, therefore, it cannot be said that the selection process has been conducted in any arbitrary manner or giving undue favouritism to anybody. The Hon'ble Supreme Court in case of Sachin Kumar and others vs. Delhi Subordinate Service Selection Board (DSSSB) and others (2021) 4 SCC 631 wherein the Hon'ble Supreme Court has held in paragraphs 35 and 56 which is as under:-
35. In deciding this batch of SLPs, we need not re-invent the wheel. Over the last five decades, several decisions of this Court have dealt with the fundamental issue of when the process of an examination can stand vitiated. Essentially, the answer to the issue turns upon whether the irregularities in the process have taken place at a systemic level so as to vitiate the sanctity of the process. There are cases which border upon or cross-over into the domain of fraud as a result of which the credibility and legitimacy of the process is denuded. This constitutes one end of the spectrum where the authority conducting the examination or convening the selection process comes to the conclusion that as a result of supervening event or circumstances, the process has lost its legitimacy, leaving no option but to cancel it in its entirety. Where a decision along those lines is taken, it does not turn upon a fact-finding exercise into individual acts involving the use of mal-practices or unfair means. Where a recourse to unfair means has taken place on a systemic scale, it may be difficult to segregate the tainted from the untainted participants in the process. Large scale irregularities including those which have the effect of denying equal access to similarly circumstanced candidates 8 are suggestive of a malaise which has eroded the credibility of the process. At the other end of the spectrum are cases where some of the participants in the process who appear at the examination or selection test are guilty of irregularities. In such a case, it may well be possible to segregate persons who are guilty of wrong-doing from others who have adhered to the rules and to exclude the former from the process. In such a case, those who are innocent of wrong-doing should not pay a price for those who are actually found to be involved in irregularities. By segregating the wrong-
doers, the selection of the untainted candidates can be allowed to pass muster by taking the selection process to its logical conclusion. This is not a mere matter of administrative procedure but as a principle of service jurisprudence it finds embodiment in the constitutional duty by which public bodies have to act fairly and reasonably. A fair and reasonable process of selection to posts subject to the norm of equality of opportunity under Article 16(1) is a constitutional requirement. A fair and reasonable process is a fundamental requirement of Article 14 as well. Where the recruitment to public employment stands vitiated as a consequence of systemic fraud or irregularities, the entire process becomes illegitimate. On the other hand, where it is possible to segregate persons who have indulged in mal-practices and to penalise them for their wrong- doing, it would be unfair to impose the burden of their wrong-doing on those who are free from taint. To treat the innocent and the wrong-doers equally by subjecting the former to the consequence of the cancellation of the entire process would be contrary to Article 14 because unequals would then be treated equally. The requirement that a public body must act in fair and reasonable terms animates the entire process of selection. The decisions of the recruiting body are hence subject to judicial control subject to the settled principle that the recruiting authority must have a measure of discretion to take decisions in 9 accordance with law which are best suited to preserve the sanctity of the process. Now it is in the backdrop of these principles, that it becomes appropriate to advert to the precedents of this Court which hold the field.
56. The decisions in Chairman, Railway Recruitment Board, Gohil and Kalamani (supra) all go to emphasise that a recruiting authority is entitled to take a bona fide view, based on the material before it, that the entire process stands vitiated as a result of which a fresh selection process should be initiated. The integrity of the selection process cannot be lightly disregarded by the High Court substituting its own subjective opinion on the sufficiency of the material which has been taken into account by the decision making authority. Undoubtedly, fairness to candidates who participate in the process is an important consideration. There may be situations where candidates who have indulged in irregularities can be identified and it is then possible for the authority to segregate the tainted from the untainted candidates. On the other hand, there may be situations where the nature of the irregularities may be manifold and the number of candidates involved is of such a magnitude that it is impossible to precisely delineate or segregate the tainted from the untainted. A considered decision of the authority based on the material before it taken bona fide should not lightly be interfered in the exercise of the powers of judicial review unless it stands vitiated on grounds of unreasonableness or proportionality.
13. Now the second submission of petitioner is that on re-checking by the expert, it is found that 3 more mistakes have been typed and it suffers from malafide just to consider the case of respondent No.4. On this factual matrix, this Court has to examine whether this Court can examine the truthfulness or correctness of the decision given by expert of the subject acting as Appellate Authority while exercising writ 10 jurisdiction under Article 226 of the Constitution of India. The law in this regard has been well settled by the Hon'ble Supreme Court that the High Court while exercising writ jurisdiction cannot appreciate the decision/opinion given by the expert of subject as Appellate Authority. The Hon'ble Supreme Court in case of the State of Uttar Pradesh vs. Karunesh Kumar and Ors in Civil Appeal Nos. 8822-8823 of 2022 arising out of SLP (C) No. 10386-10387 of 2020 wherein the Hon'ble Supreme Court has held in paragraphs 21 and 22 which reads as under:-
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 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 11 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 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] ....
xxxxxxxxx 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."
12
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 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 13 allowed to have the benefit of an instrument while 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.
xxxxx xxxxxxxx
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."
14. Considering the factual matrix of the case, particularly appreciating the 14 fact that the petitioner had committed 23 mistakes whereas respondent No. 4 had committed 19 mistakes, therefore, the respondent No. 4 has been found much suitable for appointment by the respondents No. 2 & 3, as such, appointment of respondent No. 4 on the post of Stenographer(Hindi) does not suffer from favouritism, arbitrariness or illegality which warrants interference by this Court, as such, it is held that the selection process adopted by the respondents authorities is legal, justified and does not warrant any interference.
15. Learned counsel for the petitioner has filed I.A. No. 4 for production of records before this Court and would submit that without deciding the same, the matter has been heard by this Court and reserved for order, therefore, no proper opportunity has been granted to the petitioner.
16. From bare perusal of I.A. No. 1/2022, it is quite vivid that the petitioner has filed this application to produce report regarding tampering made in the computer typed answer book of Stenographer (Hindi) of the petitioner and also to call relevant documents certificate, answer book, transcription book in computer type is nexus with the recruitment process along with document of respondent No. 4 to unearth the deliberation played by the respondents. This interim application was filed along with the writ petition which was filed on 12.10.2020. The record would show that learned counsel has never insisted for deciding this application before the matter was heard on 16.09.2022 and insistence was made to decide the said application. Though the matter is pending for about 2 years, no attempt was made to decide the said application. This shows that the petitioner is not interested for adjudication of this case finally, but intent to drag the matter for reason 15 best known to him.
17. Even from bare perusal of the application, it is quite vivid that the documents sought in the application are not at all relevant for adjudication of this case, as this Court cannot conduct roving enquiry to the allegations made by the petitioner. The respondent No.1 has filed their return, in which the answer sheet of the petitioner and respondent No. 4 have been annexed wherein the mistakes clearly indicated and would reveal that the respondent No. 4 after checking by the expert has done 19 mistakes whereas the petitioner after checking by expert has done 23 mistakes, these are the material documents which were made available by the respondents, therefore, the documents mentioned in I.A. No. 01/2020 are not relevant for just and proper adjudication of the case. Accordingly the I.A. 01/2020 is also rejected. Consequently, it is held that the petitioner is unable to point out any favouritism or partiality while conducting selection process by respondents No. 2 & 3.
18. Considering the entire facts and material on record, I do not find any good reason to interference in the selection process which has been conducted by respondent No. 2 and 3 and appointment of respondent No. 4 does not warrant any interference. Accordingly, the writ petition being devoid of merit is liable to be dismissed and is hereby dismissed.
Sd/-
(Narendra Kumar Vyas) Judge Santosh