Ankit Kumar And Another vs State Of U.P. And 2 Others
2015 Latest Caselaw 1225 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Civil Misc. Writ Petition No. 30455 of 2015
 

 
Ankit Kumar & another 
 
		Vs. 
 
State of U.P. and others
 

 
Hon'ble Vivek Kumar Birla, J.

Heard Sri Seemant Singh, learned counsel appearing for the petitioners and Sri Vikram Bahadur Yadav, learned Standing Counsel appearing for all the respondents.

The petitioners have come up challenging the advertisement dated 14.5.2013 issued by the U.P. Police Recruitment & Promotional Board, Lucknow (hereinafter referred to as the Board) for making selection to the post of Police Constables and Constables in P.A.C. by way of direct recruitment and also to quash the selection held in pursuance thereto for selection on the post of Constables in Civil Police and Constables in P.A.C. A further prayer directing the respondents to hold selection on 39,425 posts of Police Constables and 2,015 posts of Constables in P.A.C. (total number of 41,440 posts) on the basis of U.P. Police Constables and Head Constables Service Rules, 2008 (hereinafter referred to as the Rules of 2008) has also been made.

The Board vide advertisement dated 15.7.2011 invited applications for appointment to the post of Constables in Civil Police and 39,425 vacancies were advertised and 2,015 vacancies of Constables in Provincial Armed Constabulary (P.A.C.) were advertised. Thus 41,440 vacancies were advertised. The petitioners who were qualified for the same, applied in pursuance of the aforesaid advertisement dated 15.7.2011. They were issued call letters and have also appeared in Physical Standard Test as well as Physical Efficiency Test. This selection process was governed by the Rules of 2008. Subsequently, advertisement dated 14.5.2013 (as modified by notification dated 20.6.2013) for selection to the post of Police Constables and Constables in P.A.C. alongwith vacancies on the post of Fireman was published. By means of aforesaid advertisement dated 14.5.2013 it was notified that the earlier selection process, which was completed partially, has been cancelled and fresh applications were invited for appointment to the post of Police Constables and Constables in P.A.C. alongwith newly added vacancies of Fireman. In pursuance to the aforesaid advertisement 35,500 posts of Police Constables and 4,033 posts of Constables in P.A.C. were advertised. Apart from this 2,077 posts of Fireman were also advertised. Thus, this time a total number of 41,610 vacancies were advertised. It is also noticeable that earlier 39,425 vacancies of Police Constables were advertised whereas this time only 35,500 vacancies of Constables in Civil Police were advertise and the vacancies of Constables in P.A.C. increased from 2,015 to 4,033. It was further provided that since the selection process for appointment to the post of Fireman is also identical, therefore, 2,077 posts of Fireman which came into existence by the year 2013 were also included in the aforesaid advertisement. It may be noted that by advertisement dated 14.5.2013 initially 20,000 posts of Constables in Civil Police were advertised, which were modified by corrigendum notification dated 20.6.2013 and this figure was increased to 35,500 and 4,033 posts of Constables in P.A.C were also added. 2,077 vacancies of Fireman were also introduced. A perusal of the amended notification/advertisement dated 20th June, 2013 clearly indicates that now 41,610 posts were advertised. This advertisement dated 14.5.2013/20.6.2013 may be referred to as the new advertisement.

Now the petitioners are challenging the new advertisement and the selection held in pursuance thereof on the ground that when the selection process had started in the year 2011, the selection procedure as provided under the Rules of 2008 was applicable and the selection so held by the Board adopting the selection procedure as provided by 5th Amendment of the year 2013 to the aforesaid Rules of 2008 (hereinafter referred to as the Rules of 2013) is incorrect as it is the settled law that the rules of the game cannot be changed midway and the selection has to take place as per the unamended Rules of 2008. The second prayer clearly indicates that the petitioners are aware of the fact that the vacancies on the post of Fireman were advertised for the first time in the year 2013, as such they have prayed that the respondents be directed to hold selection on the total number of 41,440 posts (i.e. earlier advertised 39,425 posts of Constables in Civil Police and 2,015 posts of Constables in P.A.C.) on the basis of unamended Rules of 2008.

The undisputed fact is that the petitioners have taken part in the selection procedure throughout and admittedly the selection process has been finalized but the final select list has not been declared by the Board.

The argument of the learned counsel for the petitioners is that the vacancies which occurred in the year 2011 and were advertised by advertisement dated 15.7.2011 i.e. 39,425 posts of Constables in Civil Police and 2,015 posts of Constables in P.A.C., are liable to be filled up by following the procedure as provided under the Rules of 2008 (unamended Rules). He has made this submission from different angles by submitting that even though such vacancies were cancelled subsequently and re-advertised by new advertisement dated 14.5.2013, however, the vacancies as noted above are liable to be filled up by following the Rules of 2008 and the Rules of 2013 as notified on 9.4.2013 will not apply on such vacancies; the rules of game cannot be changed midway and the abovenoted vacancies are liable to be governed by the Rules of 2008 and not by the Rules of 2013; even though the petitioners have appeared in the selection process, still it is open to them to challenge the advertisement dated 14.5.2013 as there can be no estoppel against the law and the settled law is that the Rules as applicable on the date of initiation of recruitment process i.e. the date of advertisement will apply; no separate order cancelling the earlier advertisement and earlier selection proceedings was passed by the State Government hence the Rules as applicable in the year 2011 i.e. Rules of 2008, shall apply to the vacancies as noticed earlier; the fundamental right of the petitioners is involved and therefore, they still have a right to challenge the advertisement dated 14.5.2013 and the selection proceedings undertaken in pursuance thereof; a feeble attempt was also made to argue that the cancellation of earlier selection was due to political reason as the new Government was formed in the month of March, 2012; the candidates who have applied in the year 2011 and became overage in the year 2013 were not considered for appointment to the post of Fireman, which was added in the new advertisement dated 14.5.2013, and therefore the recruitment process on the posts of Constable in Civil Police and Constables in P.A.C. as advertised in the year 2011 is governed by the Rules of 2008, hence the advertisement dated 14.5.2013 and the selection held in pursuance thereof is liable to be set aside and the petitioners are entitled for a direction to the respondent - authority to hold fresh selection to 39,425 posts of Constable in Civil Police and 2,015 posts of Constables in P.A.C. on the basis of the Rules of 2008.

Learned counsel for the petitioners has relied upon various rulings of the Hon'ble Apex Court as well as of this Court in support of his arguments, which shall be referred to subsequently.

Per contra, learned Standing Counsel at the very outset produced a copy of the Government Order dated 3rd September, 2013 issued by the State Government to indicate that the State Government has decided to cancel the advertisement and the partial selection proceedings undertaken in pursuance thereof, and has decided to undertake the selection proceedings afresh. It was also clearly provided that the vacancies which will occur till June, 2015 due to promotion and retirement shall also be included in the aforesaid advertisement. A copy of the same is taken on record. Learned Standing Counsel has submitted that admittedly the petitioners have already appeared in the selection process throughout and it is only when they found that they will not be selected, they have come up challenging the advertisement itself and the selection process in pursuance thereof, which in itself, is malafide and is not permissible under the law. The submission is that after having taken chance in the selection and on realizing that they will be unsuccessful, they cannot be permitted to challenge the very norms on the basis whereof the selection was held. They cannot resile back after having participated in the entire selection process, and if at all they had any right to challenge the same, such participation would amount to waiver of such right or objection on the part of the petitioners.

For the purpose of appreciating the controversy involved herein it would be appropriate to take notice of the terms and conditions of the advertisement dated 15.7.2011 and of the advertisement dated 14.5.2013. Before proceeding further it is very much pertinent to note that the petitioners have applied in the year 2011 and after cancellation of the recruitment process of the year 2011 they have enjoyed the benefits extended to the candidates, who have applied in pursuance to the advertisement dated 15.7.2011 as extended to them by the new advertisement dated 14.5.2013. Admittedly, the petitioners have undergone all stages of selection process in pursuance to the amended Rules of the year 2013. They have also taken benefit of the increase in number of vacancies; concession in application fee; and age relaxation as extended to the candidates who have applied in pursuance to the earlier advertisement dated 15.7.2011. They have also undergone all the stages of selection process whether the recruitment conditions were relaxed or were made stringent.

Coming to the advertisement dated 15.7.2011 the relevant factors, which are required to be taken into consideration, are that the vacancies on the post of Constables in Civil Police were 39,425 and on the post of Constables in P.A.C. were 2,015, and thus a total of 41,440 vacancies were advertised. The vacancies on the post of Fireman were not included in this. The recruitment process provided for three stages only i.e. first, Physical Standard Test, which was of qualifying nature; second, Physical Efficiency Test, which provided for running of 10 kms. in 60 minutes for male candidates, which too was of qualifying in nature; and the third stage was written test of 200 marks with minimum of 35% marks. These facts were clearly mentioned in the instructions booklet provided alongwith the application form of recruitment of the year 2011.

Admittedly, Clause 2.3 of the the new advertisement dated 14.5.2013 clearly provided that those candidates, who have already applied in pursuance to the earlier advertisement dated 15.7.2011, may apply again without giving any application fee of Rs. 200/-. The procedure for selection was also notified in this advertisement of the year 2013. In Clause 6 (3) it was provided that for new applicant the application form shall be available on payment of Rs. 200/-. In Sub-clause (2) it was provided that the application form for the old candidates who have applied in pursuance to the advertisement dated 15.7.2011 are different and on their applying as per Annexure-3 on the prescribed format the application form shall be supplied to them free of cost. The important note given in the advertisement dated 14.5.2013 provided that in case, the old candidates who do not have OMR number provided to them earlier in the year 2011, they may find it out on the website of the Board and in case such candidates are availing free application form, the same shall be verified and if found incorrect, their free application form shall be cancelled. Clause 7 provided that the application fee would be Rs. 200; Clause 7.1 provided that those who have applied in the year 2011 for the post of Constable in Civil Police and Constables in P.A.C. need not pay any application fee, however, it was clearly provided that in case any candidate wants to apply for the post of Fireman additionally, no fee relaxation will be given and he will have to pay Rs. 200/- additionally; Clause 8.2 provided that the old candidates who have applied for the post of Constables in Civil Police or Constables in P.A.C. or for both and have become overage on 1.7.2013, the age relaxation would apply to them and they shall be entitled to appear in this recruitment process but it was clarified that this age relaxation will not be applicable for the post of Fireman; Clause 9.2 provided that for old candidates of the year 2011, free of cost OMR application form will be provided, which is liable to be submitted in the same post office where they have submitted such applications in the year 2011; Clause 9.3 provided that such free of cost OMR application form will be applicable only for the post of Constables in Civil Police and Constables in P.A.C. and in case anybody wants to apply for the post of Fireman also such OMR application will be available on payment of a fee of Rs. 200/-. The instruction booklet provided for this recruitment process for the post of Constables and other equivalent posts of Direct Recruitment, 2013 also categorically mentioned such terms and conditions. There is no dispute about the applicability of the procedure as provided in Part V of the Rule 15 of the Rules of 2008. Rule 15 (a) (ii) clearly provides that a separate booklet shall be attached with the application form. For perusal Rule 15 (a) (ii) is quoted as under:

"A separate booklet shall be attached with the application Form containing the information regarding educational qualification, age, minimum qualifying standards for each category of Physical Standard Test, Physical Efficiency Test, Medical Fitness, minimum qualifying marks for Written Examination subject wise, copy of O.M.R. Sheet for practice and other important guidelines;"

Admittedly, the booklet which was published in the year 2013 was in accordance with the amended Rules and the petitioners have also followed the same while applying for the aforesaid posts. As per the amended Rules of 2013 new selection process providing for different stages of selection process was introduced, which was clearly mentioned in the booklet provided alongwith the application form in pursuance to the new advertisement. The recruitment process as per Clause 4 of the booklet clearly provided that the first stage of examination was the physical standard test which is of qualifying nature; the second stage was preliminary written test of 300 marks wherein a minimum of 35% marks were required for getting through and the examination was purely qualifying in nature; the third stage was physical efficiency test which provided for 4.8 kms running within 30 minutes for male candidates, which was of 100 marks and was of qualifying nature, and the time period and the procedure for awarding marks as per the time taken in completing such running, has also been provided for male as well as female candidates separately; the fourth stage was main written examination of 300 marks; and thereafter stage of verification of documents and medical test was provided for. It can very well, therefore, be noticed that there has been a substantial change in the selection process as provided under the amended Rules of 2013 in comparison to unamended Rules of 2008. Needless to point out that admittedly the petitioners have taken benefit of all such relaxation as provided under the amended Rules of 2013. They enjoyed the increase in number of vacancies, relaxation in age, relaxation in application fee and particularly they enjoyed the relaxation as provided in Physical Efficiency Test. Earlier the male candidates were required to run 10 kms. in 60 minutes but now as per the amended provision the petitioners were required to run only 4.8 kms. in 30 minutes, for which also they were to be awarded marks as per the time consumed by them. After having enjoyed such relaxation and benefit and having participated in the selection process throughout without raising any objection now the petitioners are seeking to challenge the advertisement itself and the entire selection process. The attempt is clearly malafide in nature apart from the fact that under the law they cannot challenge the same after having participated in the selection process without raising any objection.

Learned counsel for the petitioners heavily relied upon the judgment rendered by the Hon'ble Single Judge of this Court in the case of Vindhyavasini Tiwari Vs. State of U.P. and others 2014 (1) ADJ 437 He contends that the rules of the game cannot be changed midway. In the aforesaid case the challenge raised was to the Government Order dated 3.9.2013 whereby the State Government communicated to the Director General of Police, U.P., Lucknow its approval for cancellation of recruitment, already held, though partially, for the post of Sub-Inspector (Civil Police) and Platoon Commander in P.A.C. pursuant to advertisement published in 2011 and directing for taking further action accordingly, and to the consequential order dated 24.9.2013 issued the U.P. Police Recruitment and Promotion Board cancelling the advertisement dated 19.5.2011. It was also prayed that the respondents be directed not to make any further advertisement for fresh selection in respect of vacancies, subject matter of recruitment of 2011, and not to fill in those vacancies on the basis of amended Rules of 2013 and proceed to complete recruitment pursuant to advertisement dted 19.5.2011. The Hon'ble Judge while dealing with the matter observed that the vacancies existing in 2011 in respect whereof advertisement was published on 19.5.2011 deserve to be dealt with in accordance with the Rules as applicable at that time and the subsequent prospective amendment would not govern the same. In the result the writ petition was allowed and the Government Order dated 3.9.2013 and the consequential order dated 24.9.2013 were quashed and the respondents were directed to complete the recruitment of the year 2011 in accordance with the Rules as they stood before 5th Amendment Rules of 2013. The Special Appeal was filed by the State and the same was dismissed by the Hon'ble Division Bench by a detailed judgment.

Learned counsel for the petitioners on the strength of the judgment of this Court rendered in the case of Sri Krishna Rai Vs. Banaras Hindu University (2011) 8 ADJ 148 (paragraph 24) submitted that the rules of the game cannot be changed midway. He submitted that therefore, the vacancies as advertised earlier in the year 2011 were liable to be filled up by following the Rules of 2008.

Relying on the judgment rendered by the Hon'ble Apex Court in the case of P. Mohanan Pillai Vs. State of Kerala 2007 AIR SC 2840 (paragraphs 4, 5 and 6) it was contended that the procedure as was prevailing on the date of initial vacancy should have been followed.

Learned counsel for the petitioners on the strength of the judgment rendered by the Hon'ble Apex Court in the case of Nar Singh Pal Vs. Union of India and others (2000) 3 SCC 588 and in the case of State of Bihar and others Vs. Project Uchcha Vidya, Sikshak Sangh and others (2006) 2 SCC 545 and the judgments rendered by the Hon'ble Division Bench of this Court in the case of Mahabir Sahkari Avas Samiti Ltd. Vs. State of Uttar Pradesh (2006) 8 ADJ 203 and the judgment rendered by the Hon'ble Division Bench of Uttaranchal High Court in Triveni Chand Pandey Vs. State of Uttarakhand Laws (UTN) -2013-11-13 further submitted that there is no estoppel against law in case of breach of fundamental right. A reference was also made to the judgment rendered by the Hon'ble Apex Court in the case of State of Tripura and others Vs. K.K. Roy (2004) 9 SCC 65 in this regard. It was a case of promotion where the employee had accepted the terms and conditions of offer of appointment knowing fully well that there was no avenue for promotion and the question of applicability of benefit of Assured Progression Scheme was involved and this case is thus clearly distinguishable on facts. While referring to the judgment rendered by the Hon'ble Apex Court in the case of State of Tamil Nadu and others Vs. K. Shyam Sunder and others 2011 AIR (SC) 3470 (paragraphs 35 and 36) it was submitted that the action of the State in the present case is totally arbitrary and is hit by Article 14 of the Constitution of India and therefore, conducting the selection process as per the amended Rules of 2013 was clearly hit by Article 14.

On the strength of the judgment rendered by the Hon'ble Apex Court in the case of A.P. Dairy Development Corporation Federation Vs. B. Narasimha Reddy and others AIR 2011 SC 3298 (paragraph 27) it was contended that the cancellation of recruitment process started in the year 2011 by the subsequent Government was thus, illegal and the vacancies advertised in the year 2011 should have been filled up by applying unamended Rules of 2008.

On the other hand, learned Standing Counsel placing reliance on the recent judgment dated 11.5.2015 of the Hon'ble Apex Court rendered in the case of Pradeep Kumar Rai and others Vs. Dinesh Kumar Pandey and others 2015 (6) SCALE 238 submitted that the petitioners having participated in the process of selection proceedings cannot challenge the same now after having participated in the proceedings right since the year 2013. Reliance on paragraphs 15 and 16 of the judgment was placed. He further placed reliance on the judgment of this Court rendered in the case of Taram Dhawaj and others Vs. State of U.P. and others 2009 (9) ADJ 176 decided alongwith other connected writ petitions, while referring to paragraphs 105 to 111 submitted that once a person had taken chance in the selection, he cannot resile back subsequently after having himself found unsuccessful and cannot be allowed to challenge the selection.

After going through the authorities cited by both sides I am of the view that the judgments relied upon by the learned counsel for the petitioners are of no help to the petitioners.

In so far as specifically speaking about the judgment rendered by the Hon'ble Single Judge in Vindhyavasini Tiwari's case (supra) it is suffice to note that no such challenge to the cancellation of vacancies by the new advertisement dated 14.5.2013 as amended by notification dated 20.6.2013 was raised by the petitioners at any point of time and the same has proceeded in pursuance to the new advertisement and by applying amended Rules of 2013, to which also no challenge was ever raised until completion of the recruitment process in pursuance thereof. In the present case the petitioners have permitted the selection process to be completed, therefore, the aforesaid judgment is of no help to the petitioners. It may further be noticed that in paragraph 50 of the same judgment it has been held that it is no doubt true that the competent authority can always cancel a recruitment process at any stage but when it is challenged on the ground that decision is arbitrary, it is for the cancelling authority to show that the decision has been taken for valid reasons. Admittedly, no such challenge was ever raised by the petitioners against cancellation of recruitment process in pursuance to the advertisement of the year 2011.

In the present case the very purpose of observing the difference in the terms and conditions of advertisement of the year 2011 and of the year 2013 was to highlight that there was substantial change in the recruitment process apart from relaxation in fees and age. The petitioners not only enjoyed the relaxation so granted to the candidates who have applied in pursuance to the advertisement of 2011 but have also subjected themselves to the new selection process, when made stringent, without any objection whatsoever and when it was relaxed, they enjoyed the relaxation happily. It is only after having appeared at the final stage when they felt that they not likely to get through, they have taken a "U" turn by challenging the new advertisement. It is a clear case where the petitioners are trying to resile back subsequently after having realized that they may not be able to get through. Relevant extract of paragraphs 105 to 111 of the judgment rendered by this Court in the case of Taram Dhawaj and others Vs. State of U.P. and others (supra) are quoted as under:

"105. In Madan Lal versus State of Jammu & Kashmir, 1995 (2) JT 291, the Hon'ble Supreme Court has held that once a person has taken a chance in the selection, he cannot resile back subsequently after having found himself unsuccessful and cannot be allowed to challenge the entire selection.

106. In Union of India & another vs. N. Chandrashekharan & others, JT 1998 (1) SC 295, the Hon'ble Apex Court has held as under: -

"It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, 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."

107. In Utkal University etc. vs. Dr. N.C. Sarangi & others, JT 1999 (1) SC 101 wherein it was held as under:

"Both the University as well as the selected candidate have pointed out that this fact was known to the first respondent throughout. He did not, at any times, objected to the composition of the Selection Committee. He objected only after the selection was over and he was not selected. This would amount to waiver of such objection on the part of the first respondent."

108. In Chandra Prakash Tiwari vs. Shakuntala Shukla,2002 (6) SCC 127, the Hon'ble Apex Court has held as under:

"The law seems 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."

109. Following the judgments of the Hon'ble Apex Court, some of them referred to hereinabove, an Hon'ble Single Judge of this Court has also taken the same view in Kavindra Kumar vs. Deputy Inspector General & others, 2003 (1) ESC 235 wherein it was held as under:

"It is thus held that these writ petitions, challenging the criterion for promotion, are not maintainable at the instance of candidates who have participated in the selection without raising any objection."

110. This Court has also taken similar view in Special Appeal No. 1222 of 2005 Km. Saurabh Vibhushan Vs. State of U.P. & others decided on 11.9.2006 wherein it was held as under :

"Now, after having failed to qualify in the selection the appellant has challenged the very qualification on the basis whereof the aforesaid selection has been made. In our view, the appellant having availed the opportunity of participating in the selection cannot be permitted to challenge the norms of the aforesaid selection."

111. Relying on the above authorities, a Division Bench of this Court (of which I was also a Member) in Virendra Kumar Mishra Vs. State of U.P. and others 2008(2) ESC 1028 (DB) held:

In the present case also, the petitioners with open eyes knowing the procedure of selection actually participated and only when the selection was finalized and promotion orders were issued, noticing that he has failed in the selection, he has challenged the very basis, i.e., the procedure applied by the respondents for the said selection and, therefore, the settled exposition of law, as discussed above, that no one can turn around and challenge the process of selection after having participated therein and after finding him unsuccessful would apply with full force in the present case."

Paragraphs 15 and 16 of the recent judgment of the Hon'ble Apex Court in the case of HC Pradeep Kumar Rai and others Vs. Dinesh Kumar Pandey and others (supra) are also quoted as under:

"15. Furthermore, we find that there is no rule of law as to the ratio of number of vacancies to the number of candidates for being called for interview; although it may be a rule of prudence. This Court has found in Mohinder Sain Garg Vs. State of Punjab and Ors., (1991) 1 SCC 662, as also in Ashok Kumar Yadav Vs. State of Haryana, (1985) 4 SCC 417, that although it may be improper for the Selection Committee to call such large number of candidates for interview, but selection cannot be vitiated merely on this ground if such an action is not tainted by mala fide or oblique motive. In Mohinder Sain Garg (supra), this Court gave one more reason not to accept this argument which squarely applies to this case as well; this Court found that the Respondents stood no chance of being called for interview if candidates upto three times the number of posts were called for interview. In the case on hand, on this score, learned counsel for the State of Uttar Pradesh has made a similar contention. Even the appellants herein have not presented a case that had they been called for interview, being only four times the number of vacancies, they would have been short listed in that list. Thus, we find this argument as a misplaced one."

"16. 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. Thus, it appears that only when the 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. (See Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand and Ors., (2011) 1 SCC 150, and K.H. Siraz Vs. High Court of Kerala and Ors. (2006) 6 SCC 395)."

In this regard it was noticed that although the petitioners have come up before this Court before declaration of final result, however, it is not a case where they were not aware of the changes made in the selection process as per new advertisement and as per amended Rules of 2013. It is pertinent to note that the changes were at every stage of examination and the petitioners have not only accepted them but have also followed them with their eyes wide open. Filing of the present petition is thus to prevent declaration of final result when they felt that they may not be successful. This clearly cannot be permitted at this stage. It is needless to point out that the law is well settled on the issue that the employer has every right to cancel the selection process and the applicants or the candidates have no vested right to claim continuance of the same. Even the selected candidates have no vested right for appointment. Therefore, the argument of the learned counsel for the petitioners that the selection process which was undertaken as per the amended Rules of 2013 with regard to the vacancies which were declared in the year 2011 amounts to change of rules of game, is wholly misconceived and is thus, hereby rejected.

Further, it is needless to point out that the entire selection process including the earlier advertisement and the vacancies so advertised were cancelled and it was a fresh advertisement of vacancies through new advertisement. Admittedly, there was a change in number of vacancies as already noticed and the selection process started afresh as per the amended Rules of 2013. Only relaxation in fee and age to the candidates who have earlier applied in the year 2011 was granted. It is also not understandable as to how this Court can grant relief in respect to 39,425 vacancies of Constables in Civil Police as advertised earlier in 2011 when now as per new advertisement the same stood reduced to 35,000 vacancies (in Civil Police). This would amount to creating vacancies, which is within the exclusive domain of the employer. Admittedly, this change of vacancies by cancelling earlier advertisement and selection process (of the year 2011), was never under challenge.

In so far next contention of the petitioners that there can be no estoppel against law, therefore, the petitioners are entitled to challenge the advertisement and the selection held in pursuance thereof even though they may have appeared in the selection process, is concerned, suffice to say that the said principle is not applicable in the present case. The principle that no estoppel against law is concerned is confined to only where there is violation of fundamental right. Admittedly, the petitioners have no fundamental right in the present case as they were only applicants/candidates in the earlier recruitment process of the year 2011, which was admittedly cancelled and fresh advertisement, with fresh vacancies with fresh terms and conditions of recruitment as per amended Rules of 2013 was made to which they have happily submitted. Even a selected candidate has no fundamental right to get appointment, therefore, the petitioners who were merely candidates in the recruitment process of the year 2013 to which they have submitted while enjoying relaxation not only in fees and age but also in physical efficiency test where running was reduced from 10 kms in one hour to 4.8 kms. in 30 minutes, do not have any fundamental right, breach whereof can be claimed by them. Therefore, the submission of the learned counsel for the petitioners that in the present case, the principle of estoppel against law will apply, is wholly misconceived and is, therefore, rejected.

The argument that the cancellation of earlier recruitment process of the year 2011 was due to political reasons and the same was absolutely illegal and is liable to be set aside inasmuch the succeeding Government is duty bound to carry on unfinished job of previous Government, is also totally misconceived for the simple reason that there was change in number of vacancies and subsequently in the new advertisement vacancies on the post of Fireman (for which no relaxation was given) were also introduced and total number of vacancies increased and the recruiting body is under obligation to carry on the recruitment process as per the amended Rules of 2013, which were notified on 9.4.2013. Onus to prove malafide on the part of the subsequent government lay heavily on the petitioners which they have utterly failed to discharge.

Undisputedly, the petitioners never challenged such cancellation in the year 2013 but they submitted to such recruitment process under the amended Rules without any objection. It is only after they apprehended that they may not be successful, they have come forward to challenge the advertisement of the year 2013 itself to which they not only submitted but also followed terms and conditions of the new recruitment process right from first stage till the last stage of such process. As such, for this reason also it is no longer open to them to come forward and claim that the recruitment process started in the year 2011 by the earlier Government should have been continued by the present Government formed by different political party. The contention that such cancellation of the earlier advertisement of the year 2011 was due to political reasons, is thus liable to be rejected and is hereby rejected.

It may also be noticed that with regard to the vacancies of Fireman that arose in the year 2013 no relaxation in age or fee was extended to the candidates who have earlier applied in pursuance to the advertisement of the year 2011. At every point of time and at every state of recruitment right from creation of vacancies in the year 2013 and the new recruitment process under the amended Rules, the petitioners were aware of such changes and have submitted to such changes throughout. It is not a case where one or two changes, which could have been missed by any ordinary person were made in the subsequent advertisement, therefore, even this much cannot be claimed that there was any kind of misreading on the part of the petitioners.

Earlier also I had an occasion of considering this question in the case of Sarita Shukla Vs. State of U.P. and others, 2015 (2) ADJ 563, paragraphs 5 and 6 of which are quoted as under:

"5. This Court is also of the opinion that now after having participated in the counselling, it is not open to the petitioner to challenge the terms of the advertisement and the selection procedure, of which she was fully aware. A reference may be made to a decision of the Hon'ble Apex Court in the case of Amlan Jyoti Borooah v. State of Assam and others, (2009) 3 SCC 227, paragraph 32 of which is quoted below:

"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 around and contend that the procedure adopted was illegal. He is estopped and precluded from doing so."

"6. This case stands on a even better footing inasmuch as there was no change in the selection procedure in the present case. Reference may also be made to various other decisions of Hon'ble Apex Court in H.V. Nirmala v. Karnataka State Financial Corporation, (2008) 7 SCC 639; Sadananda Halo v. Mumtaz Ali Sheikh, (2008) 4 SCC 619 (para 59); Union of India v. S. Vinodh Kumar and others, (2007) 8 SCC 100 (para 18) and Union of India v. Chandrasekaran, (1998) (3) SCC 694."

Therefore, for the reasons and discussions made hereinabove, the present petition lacks merit and is, accordingly, dismissed.

Dt/- 14.7.2015

PS