The Jammu & Kashmir and Ladakh High Court observed that a candidate who willfully participates in the selection process for a particular post waives his right to challenge the said process, and as such is estopped from doing so. The Court further discussed the oral submissions for additional increment and pressed upon the legal requirement of pleadings.
Brief Facts:
A Writ Petition was filed by the Technical Assistants of the University of Jammu challenging an Advertisement Notice published by the University of Jammu, for the post of System Analyst in the Department of Computer Sciences, alleging a lack of adherence to the University Grants Commission guidelines on reservation quotas for in-service candidates.
Contentions of the Petitioners:
It was contended that there was non-adherence on the part of the University of Jammu in duly complying with UGC guidelines in terms of filling up 50% of the contended posts amongst the in-house candidates by way of promotion. It was claimed that a 50% quota for promotion to the next higher post was extended to the ministerial and secretarial staff, but the same benefit was not extended to the technical staff. Having failed the grievance process, the petitioners applied for the advertisement and selection process along with the respondent candidate. However, the said respondent who was allegedly less qualified than the petitioners, was appointed as a System Analyst, further approved by the UGC. It was also contended that the 50% benefit was not equally extended to the technical staff of the University of Jammu, thereby violating the petitioners’ right to equality under Article 16 of the Constitution of India.
Contentions of the Respondents:
The University of Jammu took rescue of a scheme for Reorganization cum-Caderisation of the technical staff of the Computer Science department promulgated to provide promotional avenues to them, requiring 10 years and 18 years of satisfactory staff for being considered for promotion to the higher scale and selection scale posts respectively. It was further submitted that the pay scale of the post held and the one sought were the same. The act of the petitioners challenging the notice pursuant to taking part in the selection process was also questioned by the University of Jammu.
Observations by the Court:
While acknowledging that the petitioners were entitled to pay scales prescribed by UGC, the Court remarked that the petitioners could not challenge the advertisement for direct recruitment by claiming that the post was required to be earmarked for in-service candidates due to 50% quota. The Court further hinted towards the well-settled position in law that a candidate who willfully participates in the selection process could be estopped from challenging the selection process. Since the petitioners had participated in the selection process for the post of System Analyst, the Court held that they could not challenge the said advertisement. The Court relied on the Supreme Court’s decisions in Ramesh Chandra Shah and others Vs. Anil Joshi and others, 2013 Latest Caselaw 257 SC, Manish Kumar Shahi vs. State of Bihar (2010) and Ashok Kumar vs. State of Bihar (2017) in this regard.
Regarding the contention of petitioners holding superior qualifications as compared to the selected respondent candidate, the Court disregarded the same and clarified that the said candidate fulfilled the eligibility criterion as per the advertisement. The Court further observed that “Whether additional qualification in a different discipline or additional experience should have been given more weightage for the purpose of selection of a candidate, is a matter, that was within the jurisdiction and competence of the employer and this Court cannot substitute its view to that of the expert body, nor this Court would prescribe qualification for a particular post.”
Coming to the oral submissions for additional increment, the Court refused to act on the same and observed that “The law of the pleadings does not go missing in writ proceedings. A rejoinder or sur-rejoinder is meant to answer or rebut only those facts/documents that may be brought on record by a respondent in his reply/counter affidavit. A writ petitioner cannot lay a challenge to the actions/omissions that have taken place during the pendency of the writ petition by filing a rejoinder and sur-rejoinder. The only course known to law for challenging such subsequent actions/omissions is by way of amendment to the writ petition.”
The Decision of the Court:
The Jammu & Kashmir and Ladakh High Court dismissed the Writ Petition since the petitioners could not prove their entitlement to in-service promotion, challenging the selection process after having participated in the same.
Case Title: Bimal Kumar Goja & Anr. v. University of Jammu, University Campus through its Registrar & Ors.
Coram: Hon’ble Mr. Justice Sanjay Dhar
Case No.: SWP No. 1192/2005
Advocates for the Petitioners: Mr. P. N. Goja, Sr. Assistant, Mr. Abhinav Jamwal, Adv.
Advocates for the Respondents: Mr. Ajay Abrol, Adv.
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