Tejendra Singh Negi vs State Of U.P. And 2 Others
2014 Latest Caselaw 615 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 59
 
Case :- WRIT - A No. - 16519 of 2014
 
Petitioner :- Tejendra Singh Negi
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Amod Tripathi
 
Counsel for Respondent :- C.S.C.
 
Hon'ble B. Amit Sthalekar,J.

The petitioner in this writ petition is seeking a direction to

respondents to promote the petitioner from Class IV to Class III

post in the handicapped quota in terms of the Office Clerical

Grade (Appointment through Promotion) Rule, 2001.

According to the petitioner, he was appointed in a Class-

IV post in the Office of Joint Director, Meerut Region, Meerut

under the dying-in-harness rule in the handicapped quota of

2001. Thereafter selection for promotion on a Class III Post, in

which the petitioner appeared, was held on 11.06.2013. He did

not qualify. The allegation is that the selection was held without

calling instructor of I.T.I. and employment Office for conducting

the typing test as a result of which in the selection 10

candidates were promoted as junior Clerk. The allegation

further is that the promotion of10 candidates has been made in

violation of guidelines indicated by the Director of Agriculture,

U.P. Lucknow in Government Order dated 31.08.1982 and

Government Order dated 03.09.1995 and the Rules 2001. How

these Rules or guidelines or G.Os. has been violated has not

been outlined anywhere in the writ petition nor in the grounds

filed in support of the writ petition. All that has been stated is

that the petitioner was entitled for promotion to Class-III post on

completion of 12 years of continuous service. But it is not

disputed that he was given an opportunity of appearing in the

selection, which he did and failed to qualify.

The Supreme Court in AIR 1986 SC 1043, Om Prakash

Shukla Vs. Akhilesh Kumar Shukla and Others has held that

the person having appeared in the examination and having

failed to qualify cannot subsequently turn around and question

the same.

Para 23 of the said judgment reads as follows:

"Moreover, this is a case where the petitioner in the writ petition

should not have been granted any relief. He had appeared for the

examination without protest. He filed the petition only after he had

perhaps realised that he would not succeed in the examination. The

High Court itself has observed that the setting aside of the results of

examinations held in the other districts would cause hardship to

the candidates who had appeared there. The same yardstick should have

been applied to the candidates in the District of Kanpur also. They were

not responsible for the conduct of the examination."

Again in AIR 1991 SC 2248, Sardar Singh and Others

Vs. State of Punjab and Others, the Supreme Court has

reconsidered the same principle of law in para 8. Para 8 of the

said judgment reads as under:

"8. It is next contended that the appellants have now become overaged

and that they are 22 in all. Therefore, directions may be given to

the Government to relax their age qualification and given appointments

to them. We find no justification to give such a direction. Admittedly,

the appellants have taken the chance for selection and they were not

selected on the basis of comparative merits. Therefore, merely because

appellants are carrying on the litigation, there cannot be any justification

to give direction to the Govt. to consider their cases by relaxing the age

qualification for appointment as Patwari. It is not in dispute that hundreds

of candidates who could not be selected would in that event seek similar

relief. Under these circumstances we do not find any cause to add to the

selection and appointment of the candidates as Patwaris. The High

Court, though for different reasons, has rightly dismissed the writ

petitions. The appeals are accordingly dismissed, but without costs."

In AIR 1995 SC 1088, Madan Lal and Others Vs. State

of J & K and Others, the Supreme Court in para 9 relying upon

the decision in the case of Om Prakash Shukla (supra) has held

as under:

"9. Therefore, 'the result of the interview test on merits cannot be

successfully challenged by a candidate who takes a chance to get

selected at the said interview and who ultimately finds himself to

be unsuccessful. It is also to be kept in view that in this petition we

cannot sit as a Court of appeal and try to reassess the relevant merits

of the concerned candidates who had been assessed at the oral interview

nor can the petitioners successfully urge before us that they were given

less marks though their performance was better. It is for the Interview

Committee which amongst others consisted of a sitting High Court Judge

to judge the relative merits of the candidates who were

orally interviewed in the light of the guidelines laid down by the relevant

rules governing such interviews. Therefore, the assessment on merits

as made by such an expert committee cannot be brought in

challenge only on the ground that the assessment was not proper or

justified as that would be the function of an appellate body and we are

certainly not acting as a court of appeal over the assessment made

by such an expert committee."

In 1976 3 SCC 585, Dr. G. Sarana Vs. University of

Lucknow & Others, the Supreme Court in para 15 has held as

follows:

"15. We do not, however, consider it necessary in the present case

to go into the question of the reasonableness of bias or real likelihood or

bias as despite the fact that, the appellant knew all the relevant

facts, he did not before appearing for the interview or at the time of the

interview raise even his little finger against the constitution of the

Selection Committee. He seems to have voluntarily appeared before

the Committee and taken a chance of having a favourable

recommendation from it. Having done so, it is not now open to him to turn

round and question the constitution of the Committee. This view gains

strength from a decision of this Court in Manak Lal's case where in more

or less similar circumstances, it was held that the failure of the appellant

to take the identical plea at the earlier stage of the proceedings created

an effective bar of waiver against him. The following observations made

therein are worth quoting:

"It seems dear that the appellant wanted to take a chance

to secure a favourable report from the tribunal which was

constituted and when he found that he was

confronted with an unfavourable report, he adopted the

device of raising the present technical point."

In (1998) 3 SCC 694, Union of India and Another Vs. N.

Chandrasekharan and Others, the Supreme Court in para 13

had held that when the procedure for promotion has been

disclosed to all the candidates before they sat for the written

test and before they appeared before the Departmental

Promotion Committee, they cannot turn around and contend

later when they found they were not selected by challenging

that procedure and contending that the marks prescribed for

interview and confidential reports are disproportionately high

and the authorities cannot fix a minimum to be secured either at

interview or in the assessment on confidential report.

In (2008) 4 SCC 171, Dhananjay Malik and Others Vs.

State of Uttaranchal and Others, the Supreme Court has

relied upon its earlier decision in the case of Madan Lal and

Others Vs. State of J & K has held in paragraphs 7, 8 and 9 as

under:

"7. It is not disputed that the writ petitioners-respondents herein

participated in the process of selection knowing fully well that the

educational qualification was clearly indicated in the advertisement itself

as B.P.E. or graduate with diploma in physical education. Having

unsuccessfully participated in the process of selection without any demur

they are estopped from challenging the selection criterion inter alia that

the advertisement and selection with regard to requisite educational

qualifications were contrary to the Rules.

8. In Madan Lal vs. State of J & K, this Court pointed out that

when the petitioners appeared at the oral interview conducted by the

Members concerned of the Commission who interviewed the petitioners

as well as the contesting respondents concerned, the petitioners took a

chance to get themselves selected at the said oral interview. Therefore,

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 writ petitions. This Court further pointed out 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.

9. In the present case, as already pointed out, the writ petitionersrespondents

herein participated in the selection process without any

demur; they are estopped from complaining that the selection process

was not in accordance with the Rules. If they think that the advertisement

and selection process were not in accordance with the Rules they could

have challenged the advertisement and selection process without

participating in the selection process. This has not been done."

In Amlan Jyoti Borooah Vs. State of Assam and

Others reported in (2009) 3 SCC 227 the same principle of law

has been followed by the Supreme Court. Paragraphs 30, 31

and 32 of the said judgment read as follows:

"30. Appellant concededly did not question the appointment 169

candidates. It is idle to contend that he was not aware thereof. If he

was to challenge the validity and/or legality of the entire select list in its

entirety, he should have also questioned the recruitment of 169

candidates which took place as far back as on 4.7.2000.

31. The appellant was aware of his position in the select list. He

was also aware of the change in the procedure adopted by the Selection

Committee. He appeared at the interview without any demur whatsoever

although he was not called to appear for the physical ability test prior

thereto. The appellant chose to question the appointment of 77

candidates not only on the premise that the procedure adopted by the

Selection Committee was illegal but also on the premise that no new

vacancy could have been filled up from the select list.

32. The appellant, in our opinion, having accepted the change in

the selection procedure sub silentio, by not questioning the appointment

of 169 candidates, in our considered opinion, cannot now be permitted to

turn round and contend that the procedure adopted was illegal. He is

estopped and precluded from doing so.

In the present case, the petitioner applied under the Right

to Information Act for information, which reply was also given to

him on 4.09.2013, copy of which has been filed as Annexure-IX

to the writ petition.

In the said order, it has been clearly indicated that out of

10 posts, no post was reserved for being filled in the

handicapped quota. This order has not been challenged by the

petitioner. In para 13 of the writ petition, the petitioner has also

alleged that in the matter of promotion, one Sri Rohtas Kumar,

Junior to the petitioner was promoted but the petitioner was not

given promotion. In what manner, the promotion of Rohtas

Kumar was bad or discriminates the petitioner, has not been

indicated anywhere nor any seniority list has been filed to show

that Rohtas Kumar was junior to the petitioner. In para 17 of the

writ petition, it has been alleged that some of the employees

who were promoted from Class-IV to Class-III did not have

typing or computer knowledge. Who are those persons have

also not been named in the writ petition. A supplementary

counter affidavit has been filed today by the petitioner in which

para 1 has been sworn on personal knowledge, para 2 has

been sworn from record and in para 3, where it is stated that

out of 84 vacancies, not a single vacancy has been filled from

handicapped quota, has been sworn on legal advice. It is

surprising, how a factual question namely, 84 vacancies could

not be filled under the handicapped quota, could be sworn on

legal advice. Thus, the Court has no hesitation in holding that

the supplementary affidavit is a false affidavit.

The writ petition being wholly devoid of merit fails and is

accordingly dismissed.

Order Date :- 7.4.2014

Arun K. Singh/N Tiwari