Mukesh Ahirwar vs State Of C.G. And Ors
2021 Latest Caselaw 2333 Chatt

                                       1

                                                                            AFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR
                      Order reserved on:2.9.2021
                     Order delivered on:15.9.2021
                  Writ Petition (S) No.3775 of 2012

       Mukesh Ahirwar, S/o Shri B.L. Ahirwar, aged about 27
       years, R/o Civil Line, Ward No.20, Manendragarh,
       District Koriya (CG)

                                                             ­­­Petitioner
                                    Versus
     1. State of Chhattisgarh, Through Collector, Koriya,
        District Koriya (CG)
     2. Tahsildar, Baikunthpur, District Koriya (CG)
     3. Smt.Ashish Devi, W/o Shri Santosh Kumar Gadhwaliya,
        aged about 24 years, C/o Shri R.P. Mongre, Industrial
        Training Institute, Chirimiri, Pondi, District Koriya
        (CG)
                                                            ­­­Respondents

For Petitioner : Mr.Varun Sharma, Advocate For Respondents No.1 & 2 : Mr.Siddharth Dubey, Dy.G.A. For Respondent No.3 : Mr.K.R.Nair, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Order

1. The petitioner herein calls in question appointment of

respondent No.3 on the post of Assistant Grade III by

the Collector, Koriya­Baikunthpur.

2. It is the case of the petitioner that the Collector,

Koriya­Baikunthpur issued an advertisement for

appointment for various posts for District

Administration, of which clause 2 provides that the

candidate must be domicile of District Koriya, in

which the petitioner as well respondent NO.3 both

applied apart from other candidates and respondent

No.3 submitted domicile of Koriya district showing her

father's name, who was at particular time working as

Assistant Grade III in I.T.I. Chirimiri, District

Koriya. Thereafter, on 5.1.2012 the Collector, Koriya

Baikunthpur issued appointment order in favour of

respondent No.3 and the petitioner was kept in waiting

list, which the petitioner has challenged by filing

this writ petition questioning the domicile

certificate issued in favour of respondent No.3 on

22.9.2011 (Annexure P­8) and consequent selection of

respondent No.3 on the post of Assistant Grade III on

5.1.2012 (Annexure P­13).

3. Respondents No.1 and 2 have filed their return stating

inter­alia that the petitioner has called for

objection against proposed selection, but the

petitioner did not raise any objection. The petitioner

can prefer an appeal against domicile certificate

issued in favour of respondent No.3 under Section 44

of the provisions of the Chhattisgarh Land Revenue

Code, 1959.

4. Respondent No.3 has also filed return relying upon the

Executive Instructions dated 19.4.2002 and it is the

case of respondent No.3 that her husband is stayed

with her parents at District Koriya, therefore,

domicile certificate has rightly been issued in her

favour, as such, the writ petition deserves to be

dismissed.

5. Mr.Varun Sharma, learned counsel for the petitioner,

would submit that respondent No.3 has been married to

Santosh Gadhwalia, who is resident of Bilaspur

district and not of Koriya district and by virtue of

Section 16 of the Indian Succession Act, 1925

(hereinafter called as 'the Act of 1925'), a wife's

domicile during her marriage follows the domicile of

her husband, as such, in the light of decision of the

Rajasthan High Court in the matter of State of

Rajasthan & Others v. Asha Devi1, decision of the

Uttarakhand High Court in the matter of Jyoti Bala v.

State of Uttarakhand and another2 and decision of the

Allahabad High Court in the matter of Dr.Madhu Rana v.

State of U.P. and others3, the writ petition deserves

to be allowed.

6. On the other hand, Mr.K.R.Nair, learned counsel for

respondent No.3 would submit that the petitioner did

not raise any objection particularly with regard to

domicile certificate of respondent No.3 right in time

and after the time provided for raising objection,

appointment of respondent No.3 has become final and

objection raised thereafter cannot be entertained. He

would further submit that the petitioner having

participated in selection process cannot raise an

objection thereafter particularly he has not alleged

1 2001 SCC OnLine Raj 321 2 (2009) 1 UC 546 3 ILR 1 Allahabad 323

that appointment of respondent No.3 is mala fide and

it is contrary to statutory provisions and further

that domicile certificate issued in favour of

respondent NO.3 is accordance with the Executive

Instructions dated 19.4.2002 (Annexure R­1).

7. Mr.Siddharth Dubey, learned Deputy Government Advocate

for respondents No.1 and 2, would submit that the

petitioner did not take objection right in time, as

such, the writ petition deserves to be dismissed.

8. I have heard learned counsel for the parties,

considered their rival submissions made hereinabove

and also went through the records with utmost

circumspection.

9. The Collector, Koriya­Baikunthpur by recruitment

notice dated 5.9.2011 (Annexure P­1) invited

applications for the post of Assistant Grade III

incorporating a condition of original resident of

District Koriya, Chhattisgarh as one of the condition

for recruitment/appointment on the said post, in which

apart from other candidates, the petitioner and

respondent NO.3 both applied in SC category along with

their domicile certificates. Respondent No.3 filed her

domicile certificate issued by the competent authority

on 22.9.2011 (Annexure P­8) and thereafter the

recruitment process was further conducted and vide

Annexure P­11, list of eligible candidates for the

post of Assistant Grade III was declared in which the

name of the petitioner stood at Serial No.24 and name

of respondent No.3 was stood at Serial No.70 and

thereafter on 5.12.2011 original select list of SC

category was declared in which the respondent No.3 was

shown as selected candidate and petitioner was shown

as wait listed candidate and immediately thereafter as

per Annexure R­3, objections were invited stating that

if any person has an objection with regard to select

list, objection should be submitted on or before 12th

December, 2011. The said notice was published in Nai

Duniya, Bilaspur dated 7th Decmeber, 2012, Ambikawani,

Baikunthpur dated 7th December, 2011 as well as

Haribhoomi, Bilaspur dated 7th December, 2011, but

since no objection was received from anyone including

the petitioner, the appointment order was issued on

5.1.2012 in favour of respondent No.3 appointing her

as Assistant Grade III in SC category. Thereafter it

appears that the petitioner obtained certain

information under Right to Information Act, 2005 qua

the domicile certificate issued in favour of

respondent No.3 and filed writ petition on 6.7.2012

before this Court, in which the petitioner has not

only challenged the select list dated 05.12.2011

(Annexure P­12), but also called in question the

appointment of respondent No.3 dated 5.1.2012

(Annexure P­13) on the post of Assistant Grade III (SC

category) and also sought to question domicile

certificate dated 22.9.2011 (Annexure P­8) issued in

favour of respondent No.3 on the ground that she has

married at Bilaspur and therefore, domicile

certificate could not have been issued in her favour

and consequently, domicile certificate (Annexure P­8)

be quashed/cancelled and selection & appointment of

respondent No.3 be also quashed as it is contrary to

law, which has been opposed by the respondents stating

inter­alia that the petitioner has already preferred

an appeal before the Sub­Divisional Officer and he did

not prefer any application and objection after

publication of provisional select list and accepted

select list without demur and protest and validity of

waiting list dated 5.1.2012 has already been expired

within a month and therefore, after expiry of select

list, appointment has become final and the petitioner

is not entitled for any relief.

10. From careful perusal of the record, it is quite

apparent that the select list was issued on 5.12.2011

(Annexure P­12) and objections were invited by

publication in three newspapers, which have been filed

as Annexure R­3 inviting objections up to 12 th

December, 2011, but no objection was raised and

thereafter appointment order was issued on 5.1.2012 in

favour of respondent No.3 appointing her on the said

post.

11. The question is whether a person who has participated

in selection process, but failed to succeed can be

permitted to turn around and challenge the selection

process as illegal and bad in law.

12. It is well settled that a person who has participated

in selection process, but failed to succeed in

selection process cannot be permitted to turn around

and challenge the selection process finding the

decision unpalatable.

13. In the matter of Union of India and others v. S.

Vinodh Kumar and others4 their Lordships of the Supreme

Court following its earlier and relying upon Om

Prakash Shukla v. Akhilesh Kumar Shukla and others 5

have held as under:

"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 Govil6).

[See also Rashmi Mishra v. M.P. Public Service Commission7.)

19. In Chandra Prakash Tiwari v. Shakuntala Shukla8, it was held: (SCC p. 148, para 32)

"32. In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a

4(2007) 8 SCC 100 5 1986 (Supp) SCC 285 6 (1991) 3 SCC 368 7 (2006) 12 SCC 724 8 (2002) 6 SCC 127

further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status ­ the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention of Dr. Dhawan pertaining the doctrine of estoppel by conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla v. Akhilesh Kumar Shukla a three­Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise."

It was further observed :

"34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem 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.""

14. In the matter of Anupal Singh and others v. State of Uttar

Pradesh through Principal Secretary, Personnel Department

and others9 relying upon its earlier judgment i.e.

S. Vinodh Kumar (supra), it has been held by the

Supreme Court that a person having consciously

participated in interview cannot turn around and

challenge the selection process.

9 (2020) 2 SCC 173

15. However, there are certain exception to the aforesaid

rules which has been laid down by their Lordships of

the Supreme Court in the matter of Dr.(Major) Meeta

Sahai v. State of Bihar and others10 holding that

normally a candidate cannot challenge selection

process after participating in process. However, it

was held that said principle is differentiated insofar

as the candidate by agreeing to participate it in

selection process only accepts prescribed procedure

and not the illegality in it and there where a

candidate alleges misconstruction of statutory rules

and discriminating consequences arising therefrom, the

same cannot be condoned merely because a candidate has

partaken in it. The constitutional scheme is

sacrosanct and its violation in any manner is

impermissible. It was further held that a candidate

may not have locus to assail the incurable illegality

or derogation of the provisions of the Constitution,

unless he/she participates in the selection process

16. As such, in the instant case, the petitioner has

participated in entire selection process with clear

understanding and did not prefer any objection

pursuant to the objections invited vide Annexure R­3

against selection of respondent No.3 on the post of

Assistant Grade III (SC category) and allowed the

appointment to be made on 5.1.2012 and thereafter this

10 (2019) 20 SCC 17

writ petition was filed on 6.7.2012, in the considered

opinion of this Court, the petitioner having taken a

calculated chance to participate in the selection

process and when the competent authority invited

objections, if any, on the selection of respondent

No.3 even by publication of notice in three

newspapers, then also the petitioner did not consider

it appropriate and expedient to make any objection on

the selection of respondent No.3 and allowed the

selection to become final by making her appointment

and as such, in view of judgment rendered by the

Supreme Court in the matter of Chandra Prakash Tiwari

(supra) followed in S. Vinodh Kumar (supra), the

petitioner is not entitled to question the selection

and appointment of respondent No.3 on the post of

Assistant Grade III in SC category as she is bound by

doctrine of estoppal by conduct and it is not the case

where she falls under any of the exception to the

aforesaid principle and delineated in Dr.(Major) Meeta

Sahai (supra).

17. The next question raised by learned counsel for the

petitioner is that there was condition No.2 that the

candidate for the post of Assistant Grade III (SC

category) must be the original resident of district

Koriya, which respondent No.3 is not resident of

Koriya and therefore, her appointment is liable to be

quashed relying upon Section 16 of the Act of 1925 and

also relying upon the judgment of the Rajasthan High

Court in the matter of Asha Devi (supra) and the

judgment of the Uttarakhand High Court in the matter

of Jyoti Bala (supra).

18. In the aforesaid judgments (supra) relying upon

Sections 15 and 16 of the Indian Succession Act, 1925

it has clearly been held that woman by her marriage

acquired the domicile of her husband and wife cannot

acquires different domicile from her husband during

subsistence of her marriage.

19. The aforesaid proposition is not in dispute, but

respondent No.3 has filed her return stating that

respondent No.3 married at Bilaspur, but after her

marriage to her husband, she did not change her

residential status as she continued to be resident of

Koriya district before and after her marriage as her

husband has agreed to stay with her parents and they

are living with her parents after her marriage in

Koriya district. Merely because her husband was a

resident of Bilaspur does not mean that respondent

No.3 has ceased to be original resident of Koriya

district.

20. The aforesaid statement has been made by respondent

No.3 in her affidavit filed before this Court, but no

rejoinder affidavit has been filed controverting the

aforesaid fact and in absence of rejoinder affidavit,

it cannot be concluded that respondent No.3 has ceased

to be bona fide resident of district Koriya. Not only

this, respondents No.1 and 2 have filed copies of

order­sheet dated 04.10.2012 by which the petitioner

has made complaint against respondent No.3 before the

Additional Collector, Koriya which was adjourned to

12.10.2012 and on 12.10.2012 it was again fixed for

9.11.2012, but on 9.11.2012 again it was adjourned

awaiting the decision of this Court, but thereafter

only on 17.8.2021 the petitioner has filed an

application for closing the said proceeding before the

Additional Collector, but nothing has been brought on

record that such a proceeding has been closed by the

Additional Collector. It appears that the petitioner

has not disclosed this fact in this writ petition. It

is only the State in its return disclosed the said

fact. Even otherwise, domicile certificate was issued

to respondent No.3 as back as on 22.9.2011 vide

Annexure P­8, but the petitioner did not question it

immediately thereafter and allowed respondent No.3 to

participate in selection process and thereafter also

did not make any objection on being invited after

declaration of selection list dated 5.12.2011 despite

objection having been invited by publication of notice

in three newspapers and thereafter her appointment was

made on 5.1.2012 and allowed her appointment to become

final, then only this writ petition was filed on

6.7.2012 and her domicile certificate was sought to be

questioned, which the petitioner is not entitled to

question as she did not question the said certificate

right in time and when the petitioner became

unsuccessful in a fairly conducted selection process,

then she decided to question her appointment which has

become final. If objection could have raised right in

time pursuant to the objections invited vide Annexure

R­3, the competent authority could have inquired into

and could have passed appropriate order qua domicile

certificate of respondent No.3, but the petitioner

failed to raise any question/objection qua the

domicile certificate of respondent NO.3 at appropriate

time.

21. A candidate appeared in examination is entitled to

question the selection and appointment of the selected

and appointed candidate in accordance with law on just

and fair ground, but unsuccessful candidate cannot be

permitted to question the selection and appointment of

selected candidate on any impermissible ground /

unfair ground.

22. There is one more ground for not interfering in

selection and appointment of respondent No.3.

Respondents No.1 and 2 have clearly mentioned in

para­11 of their return that validity of waiting list

dated 5.1.2012 on the post of Assistant Grade III was

one month from the date of its issuance, which has

already been expired, however, this writ petition was

filed on 6.7.2012 and as such, appointment of

respondent No.3 has become final as it has been held

by the Supreme Court that select listed candidates do

not get indefeasible right to get appointment. (See

State of Orissa & Anr. v. Rajkishore Nanda & Ors. 11,

Uttar Pradesh Public Service Commission v. Surendra

Kumar and others12 and State of U.P. and others v.

Harish Chandra and others13.)

23. As a fallout and consequence of the aforesaid

discussion, I do not find any any merit in this writ

petition. Accordingly, the writ petition deserves to

be and is hereby dismissed leaving the parties to bear

their own cost(s).

Sd/-

(Sanjay K. Agrawal) Judge B/­

11 AIR 2010) SC 2100 12 (2019) 2 SCC 195 13 (1996) 9 SCC 309