Himachal Pradesh High Court
__________________________________________________ vs State Of H.P on 18 October, 2019
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWP No. : 507 of 2016
Decided on : 18.10.2019
__________________________________________________
Puran Chand ......Petitioner
Versus1
State of H.P. and Others. .....Respondents
Coram:
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? Yes.
For the petitioner : Mr. Ajay Sharma, Sr. Advocate with
Mr. Ajay Thakur, Advocate.
For the respondents : Mr. Anil Jaswal, Addl. A.G., for
respondent No. 1.
Mr. K.D. Sood, Sr. Advocate, with
Mr. H.R. Thakur, Advocate, for
respondents No. 2 and 3.
Mr. Ramakant Sharma, Advocate,
for respondents No. 4 and 5.
Jyotsna Rewal Dua, Judge (Oral)
Respondents No. 2 and 3 appointed five persons as Laboratory Attendants vide office order dated 10.12.2014 (Annexure P-2). Appointments of S/Sh. Ramesh Chand & Ashok 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 21/10/2019 20:25:16 :::HCHP 2Kumar figuring at serial Nos. 4 and 5 of this appointment order have been challenged by the petitioner in the instant writ .
petition. These two persons have been arrayed in the writ petition as respondents No. 4 and 5 respectively.
2. The challenge to the appointment of respondents No. 4 and 5 as Laboratory Attendant has been laid primarily on following grounds:-
a) to The posts of Laboratory Attendants were required to be filled in by promotion, whereas in the instant case, the posts have been filled on the basis of interview/direct recruitment.
b) For filling in 5 (five) posts of Laboratory Attendants, the respondents No. 2 & 3 have relied upon the Recruitment and Promotion Rules (R&P Rules) for the post of Laboratory Attendant ( Class-III, non gazetted) in the Department of Education (Annexure R-2). Column 10 of the said R&P Rules (Annexure R-2) provides for filling 25% of the vacancies by way of direct recruitments and 75% by way of promotion failing which, by direct recruitments. However, respondents have filled in all 5 posts in question on the basis of interview.
::: Downloaded on - 21/10/2019 20:25:16 :::HCHP 33. I have heard Sh. Ajay Sharma, learned Sr. Counsel for the petitioner, learned Addl. Advocate General for respondent .
No. 1, Sh. K.D. Sood, learned Sr. Counsel for respondents No. 2 and 3, Sh. Ramakant Sharma, learned counsel for respondents No. 4 & 5 and with their assistance gone through the record.
4. The prayer made in the writ petition merits 4(i) In order r to to rejection for the following reasons:-
adjust its serving employees respondents No. 2 & 3, in CWP No. 36 of 2011 titled Court on its own motion Vs. State of H.P., filed a compliance affidavit (annexure R-10) stating that vacant posts in the Temple Trust and its institutions will be filled up. In respect to posts of Laboratory Attendants, following was submitted in the compliance affidavit:-
"... Five posts of Lab. Attendant out of remaining 17 vacant posts, will be filled up through interview and preference will be given to the existing surplus employees if found eligible. List of these 05 vacant posts is annexed herewith as annexure "E'. Remaining other 12 posts will also be filled up through interview by making advertisement in the news paper or by inviting name from the employment exchanges. The list of these posts is annexed herewtih as annexure "F"..::: Downloaded on - 21/10/2019 20:25:16 :::HCHP 4
4(ii) Accordingly, directions were issued by respondent No. 2 to respondent No. 3 vide communication dated 6.8.2014 .
(annexure R-1) for filling up five vacant posts of Laboratory attendants on the basis of interview after issuing notices to all eligible candidates/serving employees of Temple Trust to enable them to apply for the posts.
4(iii).
Admittedly, respondent Temple Trust did not have any Recruitment and Promotion Rules of its own for filling the posts of Laboratory Attendants. Therefore while making appointments to these posts, it kept in view the R&P Rules of this category in Education Department. It is pertinent to notice here that R&P Rules of Education Department for the post of Laboratory Attendant, were not adopted as such by the respondents No. 2 & 3 while making their own appointments. As per the reply filed by Temple Trust to the writ petition, R&P Rules of posts of Lab-Attendant in Education Department were only 'kept in view' for determining the eligibility of candidates for participating in the selection process. Since, as per Clause 11 of the Extant R&P Rules of the Education Department, Peons/Chowkidars/ Sweapers/ Mali and all other similar Class-::: Downloaded on - 21/10/2019 20:25:16 :::HCHP 5
IV employees were considered eligible for the posts of Laboratory Attendant in Education Department therefore, same .
parameters of eligibility were applied by respondents No. 2 & 3 in determining eligibility for making appointments to the posts of Laboratory Attendants in Temple Trust. Learned Senior Counsel for the petitioner, has contended that:- having relied upon Clause-11 of R&P Rules of Education Department, it was incumbent upon respondents No. 2 & 3 to rely upon entire R&P Rules inclusive of Clause-10 therein; it was not open for the respondents No. 2 & 3 to pick or choose, to discard or apply particular clause from R&P Rules of Education Department, while making appointment to the posts of Lab Attendants in Temple Trust; since Clause 10 of the Extant Rules provided for filling 75% of vacancies by way of promotion therefore action of respondent in filling all 5 posts on the basis of interview was illegal.
4(iv) In my considered view, the above contentions have no force. It is not the case of the respondents No. 2& 3 that R&P Rules for the posts of Laboratory Attendant in Education Department, were adopted or enforced while making ::: Downloaded on - 21/10/2019 20:25:16 :::HCHP 6 appointments to the post of Lab Attendants in the Temple Trust.
Their short and simple stand is that:- in terms of the compliance .
affidavit (Annexure R-10), they had to fill up 5 posts of Laboratory Attendants from the existing temple trust employees on the basis of interview; since, post of Laboratory Attendant was technical post and Temple Trust did not have any R&P Rules of its own for such appointment, therefore, while making appointments to these posts, they simply kept in mind the R&P rules for the same category of post as applicable in the Education Department. Accordingly, respondents No. 2 & 3 considered Peon/Chowkidar/Sweeper/Mali as eligible, to be called for the interview for the said posts. Meaning thereby, only eligibility to appear in the selection process was determined by the respondent Temple Trust as per R&P Rules of Education Department. Therefore, contention of learned Senior Counsel that Rule 10 of Extant R&P Rules was also required to be followed and posts were required to be filled up by promotion is misconceived and is rejected.
4(v) One another important aspect, which is to noticed in the instant case is that pursuant to decision of respondents No. ::: Downloaded on - 21/10/2019 20:25:16 :::HCHP 7 2 and 3 to hold the interviews for filling the posts in question, 12 applications including that of the petitioner were received by it.
.
Out of 12 applicants, respondents No. 2 & 3 issued interview letters to six of them including the petitioner. Vide Annexure P-
1 dated 2.12.2014, petitioner alongwith five others including two private respondents herein were called for interview as well as written test to be held on 5.12.2014. All the six persons including the petitioner appeared in the written test as well as interview (practical-viva voce). A fair and transparent process was adopted for making recruitment to the posts in question. The selection sheet (Annexure R-6) shows that the petitioner figured at the bottom of the list, hence, was not selected. Having participated in the selection process and failed therein, it is not open for the petitioner to challenge the same on the ground that posts should not have been filled on the basis of interviews and that these were required to be filled in by convening DPC/promotion. Petitioner can not be allowed to approbate or reprobate in same breath. Hon'ble Apex held in 2019 (3) Scale 527, titled Union of India & Ors. Vs. C Girija; observed as under:-::: Downloaded on - 21/10/2019 20:25:16 :::HCHP 8
17. There is one more aspect of the matter, which need to be noted. The applicant was well aware that under 30% LDCE quota, out of 05 vacancies, 04 are unreserved and 01 is reserved, which was .
circulated by notification dated 14.10.1999. She applied against the said bifurcated vacancies and was interviewed on 08.01.2001, panel of which was declared on 09.01.2001 and promotion was made on the same day. She having participated in the selection for promotion under 30% LDCE quota and the bifurcation of the vacancies being part of the process of selection, it was not open for her to challenge the bifurcation of vacancies into general and reserved after taking a chance to get selected. In this context, reference is made to judgment of this Court in Ashok Kumar and Another Vs. State of Bihar and Others, (2017) 4 SCC 357. This Court after referring to several earlier judgments have laid down following in Paragraph Nos. 13 to 18:-
"13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127, 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, (2007) 8 SCC 100, this Court held that: (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, (1991) 3 SCC 368 and Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC
724.)"::: Downloaded on - 21/10/2019 20:25:16 :::HCHP 9
14. The same view was reiterated in Amlan Jyoti Borooah, (2009) 3 SCC 227, 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.
15. In Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576, the same principle was reiterated in the following observations: (SCC p. 584, para 16) "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K, (1995) 3 SCC 486, Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522, Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171, Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 327 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515."
16. In Vijendra Kumar Verma v. Public Service Commission, (2011) 1 SCC 150, candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after ::: Downloaded on - 21/10/2019 20:25:16 :::HCHP 10 participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be .
impermissible.
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: (SCC p. 318, para 18) "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, (2014) 10 SCC 521, 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: (SCC p. 500, para 17) "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 ::: Downloaded on - 21/10/2019 20:25:16 :::HCHP 11 appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot .
approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted."
This principle has been reiterated in a recent judgment in Madras Institute of Development Studies v. K. Sivasubramaniyan, (2016) 1 SCC 454".
The contention of learned Senior Counsel for the petitioner that petitioner being Class-IV was under the impression that his interview and written test was for the purpose of promotion is unbelievable. This belief is way too far from reality. There was no occasion for such belief. The respondents had not convened any DPC. Promotions are not effected on the basis of written test and interviews. Therefore, having participated in the selection process for appointment to the post of Laboratory Attendants, petitioner can not be allowed to challenge the selection process on the ground that posts were required to be filled by way of promotion and not on the basis of interview/direct recruitment.
::: Downloaded on - 21/10/2019 20:25:16 :::HCHP 124(vi) Petitioner has not even impleaded all successful candidates who have been selected as Laboratory Attendant .
vide common order dated 10.12.2014 (Annexure P-2).
5. In view of the above, there is no merit in the instant petition. The same is therefore dismissed alongwith all miscellaneous application(s).
r to (Jyotsna Rewal Dua)
Judge
October 18 , 2019
(Anant Parihar)
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