THE HON'BLE THE CHIEF JUSTICE HIMA KOHLI
AND
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
WRIT APPEAL No.809 of 2019
JUDGMENT: (Per the Hon'ble the Chief Justice Hima Kohli)
1. This appeal is directed against the judgment dated 14.10.2019,
passed by the learned Single Judge in W.P.No.15675 of 2019,
preferred by the appellants/petitioners.
2. The parties are hereinafter referred to, as they were arrayed
before the learned Single Judge.
3. The relief sought for in the writ petition is as under:
"... the High Court may be pleased to issue a Writ,
Order or Direction more particularly one in the nature of
Writ of Mandamus declaring the action of the
Respondents in not selection the Petitioners on the basis
of their relative merit in the Recruitment to the Post Code No.12 - Stipendary Cadet Trainee Reserve Sub-Inspector of Police (AR) (Men and Women) notified vide Recruitment Notification Rc.No.89/Rect/Admn-I/2018 dated 31.05.2018 by application of non-transparent, alleged normalized marks referred to in the Rule 18 (C)
(iv) of the Recruitment Notification resulting in practicing gender discrimination as violative of Article 14 read with 15(1) of the Constitution of India as illegal and without jurisdiction and consequently set aside the "Normalised Marks" merit list of and direct the Respondents to re-evaluate and publish the merit list of W.A.No.809 of 2019 Page 1 of 24 all the candidates including the Petitioners without reference to the alleged "Normalised Marks" by converting 3 events points of the Petitioners to marks against 5 event to men candidates as mentioned in the Notification dated 31.05.2018 and issuing appointments as per the said merit list - with all consequential benefits and reliefs."
4. In brief, the following averments have been made in the writ petition:-
(a) The petitioners are women candidates, possessing requisite qualifications and eligibility against Post Code No.12, as per the notification dated 31.05.2018 issued by the respondent No.2/Telangana State Level Police Recruitment Board (TSLPRB). The petitioners had applied and appeared for selection in the written and Physical Efficiency Test (PET) events.
(b) Under the recruitment procedure for Post Code No.12, the male candidates were expected to qualify in all the 5 events of PET, carrying 125 marks, as detailed under Rule 18(C)(iii) and the women candidates were required to qualify in all the 3 events of PET carrying an aggregate of 125 maximum marks, as detailed in Rule 18(C)(iv) of the notification. Sub-clauses (iii) and (iv) of the said Rule prescribes that while drawing the merit list, "These 125 marks will be normalized as per the procedure followed by the TSLPRB". In terms of Rule 18(E) of the notification, the final selection of the candidate would be based strictly on the merit, as obtained by them in the final written W.A.No.809 of 2019 Page 2 of 24 examination and the PET. Further, the Rule states that "Marks secured by men and women in PET shall be normalized as per the procedure followed by the TSLPRB to ensure fairness. The normalized marks shall be used while drawing the final merit list".
(c) As per Rule 10 of the notification, 10% of the vacancies in each category were to be reserved for women in Post Code No.12, under direct recruitment, in relaxation of the relevant Rules under the Telangana State and Subordinate Service Rules. Annexures I(A) and I(B) provide the Gradation Table for converting the performance into marks from the points awarded for men and women, against 5 events and 3 events of the PET, respectively. The petitioners claim that they were unable to verify their merit marks and nor were they able to ascertain the practice adopted by TSLPRB of normalizing the marks by any known procedure and also other relevant information. When the petitioners applied under the RTI Act for gathering the requisite information, the authorities replied by referring to Para 3(f) on page 5 of G.O.Ms.No.49 dated 10.05.2018 as the procedure adopted for normalizing the marks. Para 3(f) reads as follows:
"3(f) Selection: - The final selection of the candidates shall be made strictly on their relative merit as obtained by them based on their score in the Final Written Examination (Paper III and Paper IV) & Physical Efficiency Test. The marks secured by Men and Women in PET shall be normalized as per the procedure followed by the TSLPRB to ensure fairness. The said W.A.No.809 of 2019 Page 3 of 24 normalized marks shall be used while drawing the Final Merit List. The provisions of the Telangana Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 and G.O.P.No.763, GA(SPF.A) Dept., dt.15.111975 as amended from time to time, shall be applicable."
(d) The petitioners submit that the principle adopted for normalization is not evident from in Rule 3(f), referred to above. Further, even as per the information regarding the merit of the candidates, no discernible principle could be deduced for evaluating the merit thereby discriminating against women candidates. It was averred that the relative merit of the petitioner No.1 is far higher than the male candidates in the written examination as well as PET. But even after conversion of 300 points into 125 marks on normalization, the petitioner No.1 had secured 114.58 marks which is more than 100 marks secured by the male candidate. But, by applying the non- transparent method of normalizing the marks, the said candidate was awarded 116.27 marks against 100 points and was placed in the final merit list for appointment.
(e) The total marks which the petitioner No.1 had got out of 325 marks is 212.58, which has been reduced to 118.50 marks in the process of normalization, whereas 192.5 marks out of 325 marks of the selected male candidate has been increased to 208.77 marks out of 325 marks. A similar pattern was followed for another candidate. It was pleaded that this has resulted in a hostile discrimination against W.A.No.809 of 2019 Page 4 of 24 women candidates by increasing the marks of the male candidates and reducing the marks of women candidates under the guise of a non- transparent and undisclosed normalization method. The petitioners claim that they have reliably learnt that out 275 vacancies, only 29 women candidates which equals to 10% of the reservation provided for them, have been selected and placed in the final merit list under the normalization procedure. Describing the procedure adopted by the respondents as a totally non-transparent, irrational and gender discriminative in evaluating the relative merits of the men and women candidates, it was contended that the said action is in violation of Articles 14 and 16 of the Constitution of India as it denied selection and appointment of women candidates and favoured men candidates against Post Code No.12.
(f) To sum up, the petitioners argued that the impugned action of the respondents in not selecting them on the basis of their merit against their performance in the written examination and PET at par with male candidates, under the guise of adopting an undisclosed and irrational normalization method and confining women candidates to 10% reservation provided to them, without reference to their right to compete for appointment against the open quota, is liable to be quashed as irrational, illegal and unconstitutional. According to them, the old method of selection ought to have been adopted by the respondents for this selection process.
W.A.No.809 of 2019 Page 5 of 24
5. In its counter affidavit the respondent No.2/Telangana State Level Police Recruitment Board has stated as follows:
(a) That four Notifications were issued on 31.05.2018 vide Rc.No.88/Rect./Admn.1/2018 for the Posts of SCT PC (Civil/etc), Rc.No.89/Rect./Admn.1/2018 for the posts of SCT SI (Civil/etc), Rc.No.90/Rect./Admn.1/2018 for the posts of SCT PC Technical (IT & C), PTO Drivers and PTO Mechanics) and Rc.No.91/Rect./Admn.1/2018 for the posts of SCT SI (IT & C)/SCT ASI FPB calling for online applications from eligible and willing candidates. Insofar as Notification Rc.No.90/Rect./Admn.1/2018, subject matter of the writ petition is concerned, the candidates who qualified in the preliminary written test, were called to appear for Physical Measurement Test and Physical Efficiency Test at different venues across the entire State of Telangana. Final written examinations in respect of all the above notifications were completed and the results have also been declared. The provisional selection list for the posts of SCT SI (Civil/etc) was issued on 12.07.2019 and for the post of SCT PC, was at the final stages, when the petitioners filed the writ petition in the last week of July, 2019.
(b) As per the SCT Rules amended vide G.O.Ms.No.49, dated 10.05.2018 issued by Home (Legal) Department and amended vide Notification dated 31.05.2018 issued by the TSLPRB, under the "Final Selection" for Post Code No.12 i.e. SCT SI AR Post, marks secured by men and women candidates in the PET were to be W.A.No.809 of 2019 Page 6 of 24 normalized in terms of the procedure laid down by the TSLPRB, to ensure fairness. The male candidates for the post of SCT RSI AR were required to qualify in all the 5 events carrying maximum marks of 25 in each event (aggregating to 125 marks) whereas women candidates had to qualify only in 3 events of the PET, carrying maximum marks of 45, 40 and 40 respectively in each of the three events (aggregating to 125 marks). Similarly, for the post of SCT PC AR, the male candidates had to qualify in all the 5 events of the PET carrying a maximum of 15 marks for each event (aggregating to 75 marks) whereas women candidates had to qualify in the same 3 events of the PET, each carrying a maximum of 25 marks (aggregating to 75 marks). Also, the marking pattern over the performance spectrum in the case of men candidates was distinctly different from that of the women candidates. The standards prescribed for men and women have been extracted in a tabulated statement placed in para 5 of the counter affidavit.
(c) It was averred that the Railway Recruitment Board, IITs and several other institutions resort to normalization whenever they have to merge the marks of different groups of qualified candidates, in circumstances where each group is to qualify in a distinctly different test/examination, as in the case of Web Based Tests, wherein each session would have different type of tests with different scoring standards and patterns besides varying distribution of candidates across the marks spectrum. Therefore, the respondent No.2 sent a W.A.No.809 of 2019 Page 7 of 24 proposal to the Government on 25.04.2018, informing that a standard normalization procedure has to be followed to effectuate fairness in the PET marks obtained by men and women candidates for the posts of SCT RSI (AR) (Men & Women) and SCT PC (AR) (Men & Women) while drawing the Final merit list. The reason offered was that the tests prescribed, their standards as well as gradation parameters of women candidates are remarkably different from those prescribed for men candidates. To normalise the PET marks of men and women candidates from amongst the total qualified candidates for the respective posts, a standard predetermined mathematical formula had to be adopted while calculating the total marks of each candidate in the final selection with the object of ensuring fairness at the time of drawing a common final merit list.
(d) The formula adopted for normalization for the PET is as follows:
Normalized Mark = (SD+Avg)T + [Raw Mark - (SD+Avg)S X [AvgTT - (SD+Avg)T] [AvgST - (SD+Avg)S] Where -
SD = Standard Deviation
Avg = Mean or Average
Subscript T = of Total or All the Qualified Candidates Subscript S = of All the Qualified Candidates pertaining to the Gender Group of the Candidate SubscriptTT = of the Top 0.1% or Top 10 (whichever is higher) Candidates among all the Qualified Candidates SubscriptST = of the Top 0.1% or Top 10 (whichever is higher) W.A.No.809 of 2019 Page 8 of 24 Candidates among all the Qualified pertaining to to the Gender Group of the Candidate
(e) The respondents contended that the physical tests prescribed, their number, scoring parameters and standards being totally different, performance of men and women in their respective PET's will have to be comprehensively different. Women candidates who were in consideration for the post of RSI AR posts scored an average of 86% in their PET whereas men candidates who were in consideration for the same post, had scored an average of only 61% -
which is remarkably low by 25 percent points when compared with 86% scored by women candidates. Similarly, 605 women candidates had scored 86% or more in their PET whereas only 43% of the men candidates could surpass the average score of 61% marks prescribed for them, what to speak of 86% marks scored by women. For the sake of merger into a common merit list, such a diversely distributed sets of data, one belonging to men and the other to women, had to be necessarily normalized. Denying that any discrimination had been shown between men and women, it was averred that the selection was done strictly as per merit and in terms of the procedure mentioned in the Notification. The selection of women for the post of SCT SI (Civil) and SCT SI AR is a horizontal reservation and the required quota for women candidates for the Post Code 11 (SCT SI Civil) is to the extent of 33 1/3 % and for the Post Code 12 (SCT SI AR), to the W.A.No.809 of 2019 Page 9 of 24 extent of 10% as provided in the Rules vide G.O.Ms.No.96 Home (Legal) dated 31.12.2015 and the said Rules have been duly followed.
(f) The respondents have asserted that the procedure explained by the Supreme Court in the case of Rajesh Kumar Daria v. Rajasthan Public Service Commission, reported as (2007) 8 SCC 785 : AIR 2007 SC 3127, for filling up of special reservation quota of women candidates has been followed. Denying the contention of the petitioners that selection of women candidates was confined to 10%, the respondents submitted that the procedure of normalization as per G.O.Ms.No.49, dated 10.05.2018 issued by the Home (Legal) Department and as mentioned in the notification dated 31.05.2018, has been adhered to.
6. By the impugned order dated 14.10.2019, the learned Single Judge declined to interfere with the normalization principle adopted by the respondents to determine the relative merit of men and women for the subject post by holding that the recruitment agency is the best authority to determine the procedure of selection. Observing that the power of judicial review on executive decision is confined to illegality, irrationality, procedural impropriety, lack of jurisdiction and competence, it was held that as long as some principle has been adopted, merely because a person contends that the respondents could have been adopted a better principle, will not be a ground for the Court to mandate the recruiting agency to adopt a different principle. When a choice is available to the recruiting agency, it is for that W.A.No.809 of 2019 Page 10 of 24 agency to elect a principle, as it deems fit and the Court cannot interfere in such matters in judicial review. Relying on the decisions of the Supreme Court in Federation of Rly.Officers Assn. v. Union of India reported as (2003) 4 SCC 289, Directorate of Film Festivals v. Gauraw reported as (2007) 4 SCC 737 and Union of India v. J.O.Suryavamshi reported as (2011) 13 SCC 167, the learned Single Judge observed that the scope of judicial review on the decisions of the executive, more particularly decision involving technical matters, is very limited; there should be judicial restraint in administrative action; the Court does not sit as a Court of Appeal but merely reviews the manner in which the decision was made; the Court does not have the expertise to correct the administrative decision and it cannot substitute the decision taken with its own decision without the necessary expertise which itself may be fallible.
7. At the same time, the learned Single Judge held that when it comes to assessment of merit from amongst the women candidates, there did not appear any justification for applying the same normalisation formula as it could cause injustice to meritorious women candidates vis-à-vis other women candidates. Observing that it is not impossible to conduct a further exercise after applying the Normalization principle and determe a common merit list, it was suggested that in a given case, by applying the Normalization principle, the over all merit list could have been drawn first and thereafter, the merit list for women could be drawn by determining W.A.No.809 of 2019 Page 11 of 24 and applying horizontal reservation. After completing this exercise and identifying the meritorious women candidates, the Board could have reverted back to assessment of merit, as is done if the recruitment is confined to men/women only and then decide the inter se merit amongst the women. However, being mindful of the fact that the merit list had already been drawn and finalized before the writ petition was closed and further, noticing that none of the selected women candidates had been made parties in the writ petition, the learned Single Judge left it for the Board to take a decision on the above aspect, with a rider that if it does reconsider the desirability of assessing the inter se merit of women candidates after completing the exercise of normalizing the relative performance of men and women, without applying the Normalization principle, it may put to notice the already selected women candidates, consider their objections, if any, and then take a final decision.
8. Mr. Rahul Reddy, learned counsel for the appellants/petitioners has contended that had the respondent No.2 followed the old normalization method, the merit order of women candidates and the men candidates would not have been disturbed and the mandate of Articles 14 and 16 of the Constitution of India would not have been violated. By virtue of adopting the new normalization formula, the merit order not only of men vis-à-vis women, but also of women candidates within their own category has been altered, without any rational basis. He further submitted that the court ought not to have W.A.No.809 of 2019 Page 12 of 24 left the matter to the discretion of the Police Recruitment Board but should have issued positive directions to the respondents to redraw the merit list after reviewing the inter se merit list of women candidates, without applying the normalization principle.
9. Per contra, Mr. M.V.Rama Rao, learned Standing Counsel for the respondent No.2, has supported the impugned judgment and asserted that in the previous recruitment conducted in the year 2015- 206, for the first time, the recruitment process was combined for both, men and women for the posts of SCT RSI AR and SCT PC AR. In view of higher standards of PET for the male candidates as compared to women, the events that were common for both the genders, the parameters being different (and the same could not be equated), separate merit lists were prepared for men and women and women candidates were recruited to the extent of 10% of the vacancies notified for the posts of SCT RSI AR and SCT PC AR as the horizontal reservation was for 10%. Separate merit lists were prepared for both men and women as the normalization procedure was not notified in 2015-2016 recruitment. In the present recruitment process, with a view to draw up a common recruitment list, while providing for 10% horizontal reservation for women, the issue was discussed extensively with various educational institutions and recruitment agencies and only after receiving input from different sources, was the formula of normalization procedure worked out and implemented. W.A.No.809 of 2019 Page 13 of 24
10. We have given our thoughtful consideration to the arguments advanced by Mr. S. Rahul Reddy, learned counsel for the petitioners and Mr. M.V. Rama Rao, learned Standing counsel for the respondent No.2 and have carefully perused the record as also the impugned judgment.
11. It is settled law that the scope of judicial review under Article 226 of the Constitution of India in relation to matters concerning evaluation of candidates for purposes of recruitment to public service, is fairly narrow and that ordinarily, judicial review should be exercised only in exceptional circumstances. (Refer: Maharashtra Sate Board of Secondary & Higher Secondary Education v. Paritosh Bhupesh Kumar Sheth, reported as (1984) 4 SCC 27, Pramod Kumar Srivastava v. Bihar Public Service Commission, reported as (2004) 6 SCC 714, Board of Secondary Education v. Pravas Ranjan Panda, reported as (2004) 13 SCC 383, H.P.Public Service Commission v. Mukesh Thakur, reported as (2010) 6 SCC 759, Gangadhara Palo v. Revenue Divisional Officer, reported as (2011) 4 SCC 602, CBSE v. Khusboo Shrivastava, reported as (2014) 14 SCC 523, Ran Vijay Singh v. State of U.P., reported as (2018) 2 SCC 357 and Bihar Staff Selection Commission v. Arun Kumar, reported as (2020) 6 SCC 362. It is an equally settled legal proposition that courts cannot take upon themselves the task of statutory authorities and it is for the appointing authority to prescribe the mode of selection and the minimum qualifications prescribed for recruitment. (Refer: Chandigarh W.A.No.809 of 2019 Page 14 of 24 Administration v. Usha Kheterpal Waie, reported as (2011) 9 SCC
645).
12. As can be seen from Clause E (ii) of the Notification dated 31.05.2018, the marks awarded to men and women in the PET had to be normalized, in terms of the procedure laid down and followed by the Police Recruitment Board, so as to ensure fairness in the process. The normalized marks of the PET were to be considered while drawing up the common merit list. In the PET prescribed for the male candidates, they had to undergo a test in 5 disciplines i.e. 100 meters run, long jump, short put, high jump and 800 meters whereas the women candidates had to undergo a PET in 3 events i.e. 100 meters run, long jump and short put. The total marks earmarked for the PET is 125. The marks allocated to men were to be divided equally in five disciplines. For the women candidates, the marks were divided as in 45 marks for 100 meters run, 40 marks each for long jump and short put. The respondent No.2 had stipulated that the marks secured in Paper III and Paper IV would be considered to determine the selection. When women and men were required to undergo a different selection process, particularly insofar as PET is concerned and women candidates were given a relaxation or put to less intensive tests, it would be unfair to state that the marks secured by women and men ought not to have been normalized. Women candidates with relaxed norms cannot be permitted to steal a march over men who were made to undergo a relatively more intensive PET, as compared to women. W.A.No.809 of 2019 Page 15 of 24
13. The recruitment notification dated 31.05.2018 specifically provides for the normalization method. This position was to the knowledge of the appellants/petitioners when they had applied for recruitment. Though it has not been explained with mathematical precision as to how the normalization principle has been worked out, it has been stated by the respondent authorities that the Railway Recruitment Board, IIT's and several other organizations have been following this method. In our opinion, the recruiting agency is the best judge to decide the efficiency of the candidates whom it seeks to recruit and the procedure of making the selection. The normalization method has been applied uniformly to all the candidates. The appellants/petitioners have not been able to demonstrate as to how this normalization method has worked out to their disadvantage and has caused a hostile discrimination against women candidates. There is no allegation of malafides, arbitrariness or of favouring any vested interest so as to eliminate eligible women candidates.
14. It is also noteworthy that the respondent No.2 had declared in the Notification itself that they proposed to adopt the normalization procedure. So, this has not come as a surprise to the appellants/petitioners. If in doubt, there was ample opportunity for them to have approached the respondents for seeking clarification in respect of the normalization procedure proposed to be followed. However, they did not do so. Instead, they participated in the selection W.A.No.809 of 2019 Page 16 of 24 process, waited for the results to be declared and on finding that they had not been selected, used the RTI route to gather information. Only thereafter, did they approach the court for relief. By then, the list of the successful candidates had already been drawn by the respondents. This itself was sufficient reason for the court not to entertain the writ petition.
15. The Supreme Court has repeatedly declared that the principle of estoppel comes into play against a candidate who challenges the selection process, after having failed in it. In Manish Kumar Shahi v. State of Bihar, reported as (2010) 12 SCC 576, the Supreme Court has held thus:-
"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 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 reported as (1995) 3 SCC 486, Marripati Nagaraja v. State of A.P., reported as (2007) W.A.No.809 of 2019 Page 17 of 24 11 SCC 522, Dhananjay Malik v. State of Uttaranchal reported as (2008) 4 SCC 171, Amlan Jyoti Borooah v. State of Assam reported as (2009) 3 SCC 227 and K.A.Nagamani v. Indian Airlines reported as (2009) 5 SCC 515."
(emphasis supplied)
16. In Ashok Kumar v. State of Bihar, reported as (2017) 4 SCC 357, the Supreme Court has held thus:-
"12. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate.
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 W.A.No.809 of 2019 Page 18 of 24 SCC 100 : (2007) 2 SCC (L&S) 792] , 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 [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."
(emphasis supplied)
17. A similar view has been expressed by the Supreme Court in Vijendra Kumar Verma v. Public Service Commission, reported as (2011) 1 SCC 150, Ramesh Chandra Shah v. Anil Joshi, reported as (2013) 11 SCC 309, Chandigarh Administration v. Jasmine Kaur, reported as (2014) 10 SCC 521, Pradeep Kumar Rai v. Dinesh Kumar Pandey, reported as (2015) 11 SCC 493 and Madras Institute of Development Studies v. K.Sivasubramaniyan, reported as (2016) 1 SCC 454. In all the aforesaid pronouncements, the Supreme Court has declared that the person who consciously takes part in the process of W.A.No.809 of 2019 Page 19 of 24 selection, cannot, thereafter, turn around and question the method of selection and its outcome.
18. In several cases, the courts have refrained from entertaining petitions that have been filed by a candidate after participating in the selection process. In Dr. Ojasvini Agrawal v. Union of India, reported as 2020 SCC Online Del 607, a Division Bench of the Delhi High Court [of which one of us (Hima Kohli, J) was a member], had considered the aforesaid aspect and held thus:-
"15. The subject writ petition was filed by the appellant only after the Notification dated 07.04.2020 was issued by the Medical Council of India to facilitate those students who were not in a position to commence their internship before the spread of the COVID-2019 pandemic. Therefore, after participating in the selection process, the appellant cannot be permitted to turn around and challenge the eligibility criteria. It is well settled that a candidate cannot approbate and reprobate at the same time. The appellant should not have participated in the counseling and ought to have challenged the instructions in the Information Bulletin before the counseling process had started. In several cases, the Courts have refrained from entertaining petitions which have been filed by a candidate after participating in the selection procedure and then turning around to challenge it. [Refer: Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285, Madan Lal v. State of J&K, (1995) 3 SCC 486, K.H. Siraj v. High Court of Kerala, (2006) 6 SCC 395, Marripati Nagaraja v. Govt. of A.P., (2007) 11 W.A.No.809 of 2019 Page 20 of 24 SCC 522, Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171, Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227, K.A.
Nagamani v. Indian Airlines, (2009) 5 SCC 515, Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576, Vijendra Kumar Verma v. Public Service Commission, (2011) 1 SCC 150, Pradeep Kumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493 and Ashok Kumar v. State of Bihar, (2017) 4 SCC 357]. Even otherwise, the Notification dated 07.04.2020, cannot be made as the basis for claiming the relief which the appellant was otherwise not entitled to."
(emphasis supplied)
19. Even if the submission made by learned counsel for the appellants that the appellants/petitioners have challenged the procedure immediately after the results were declared, is accepted, for reasons best known to them, they did not implead any of the candidates who had made the mark on merits, nor was any effort made by the appellants to subsequently seek impleadment of the successful candidates on perusing the counter affidavit filed by the respondent No.2. At the time of filing the present appeal too, the appellants/petitioners have not moved an application requesting for impleadment of those women candidates whose names have been declared as selected in the list, for being heard by this court. We are therefore of the opinion that after participating in the selection process with their eyes wide open, the appellants/petitioners cannot be permitted to subsequently challenge the formula of normalization W.A.No.809 of 2019 Page 21 of 24 adopted by the respondent No.2, nor can they insist that the old formula must be adopted for the selection.
20. We therefore concur with the view expressed by the learned Single Judge that there does not appear any grave illegality in the normalization principle adopted by the respondent No.2, warranting interference in judicial review. The learned Single Judge has rightly pointed out that normalization has been uniformly applied to all the candidates. No mala fides are attributed; no personal prejudice is alleged; no illegality or perversity has been alleged in the selection by applying the normalization principle. The 2016 Notification clearly specifies the normalization method to be adopted in preparation of a common merit list. The appellants/petitioners cannot take advantage of the defective drafting of the Rule, as the position in the year 2016, is not the same as existing now. The earlier procedure followed by the Police Recruitment Board has lost significance. After the amended Recruitment Rules were adopted, this was the first notification issued by the respondents and it cannot be urged that the Board should adopt the old procedure as was adopted in the earlier selection process. More over, the normalization principle was being applied for the first time and its working had to be tested and could be fine tuned, if so required, but only in future recruitments.
21. This is not even a case where the appellants/petitioners have alleged misconstruction of the statutory rules and the discriminatory W.A.No.809 of 2019 Page 22 of 24 consequences arising therefrom. Rather, their challenge is to the normalization method that has been adopted by the respondent No.2 and the plea taken is that the same being a new formula, ought to be discarded while calling upon the respondents to follow the old normalization procedure. This is beyond the scope of judicial review and the same has been rightly turned down by the learned Single Judge on two counts. Firstly, on the ground that the merit list had already been drawn by applying the normalization principle and secondly, for the reason that the appellants/petitioners had failed to implead any of the selected women candidates as parties in the writ petition. We see no reason to differ with the aforesaid view expressed in the impugned judgment.
22. As noted above, if they had any doubt about the formula of normalization adopted by the respondent authorities, the appellants/petitioners ought to have questioned the same at the initial stages itself. However, they did not elect to do so. Only on seeing that their names did not feature in the list of successful candidates, did the appellants/petitioners wake up and started gathering information, to find fault with the normalization procedure followed by the respondent No.2. Their conduct disentitles them from questioning the selection process. Despite the above, the impugned order has noted that in so far as the inter se merit amongst women candidates is concerned, the Police Recruitment Board, may reconsider the desirability of assessing their merit after completing the exercise of W.A.No.809 of 2019 Page 23 of 24 normalizing the relative performance of men and women, without applying the Normalization Principle. The learned Single Judge has additionally observed that before doing so, the Police Recruitment Board would have to issue notices to the already selected women candidates, invite objections from them and then take a final decision. It is noteworthy that the respondents have not questioned the above directions or assailed the said part of the judgment. It is, therefore, for them to consider and implement the above recommendations made, by following the principles of natural justice.
23. For the aforesaid reasons, this Court does not find any infirmity in the impugned judgment warranting interference. The appeal is accordingly dismissed as devoid of merits along with the pending miscellaneous applications, if any, with no orders as to costs.
_________________ HIMA KOHLI, CJ ______________________ B. VIJAYSEN REDDY, J June 1st, 2021 PLN Note: LR copy be marked.
(By order) PLN W.A.No.809 of 2019 Page 24 of 24