Himachal Pradesh High Court

Ramesh Kumar vs State Of Uttar Pradesh & Others on 11 May, 2022

Bench: Sabina, Satyen Vaidya

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     IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                     ON THE 11th DAY OF MAY, 2022
                               BEFORE




                                                          .

                     HON'BLE MS. JUSTICE SABINA
                                  &
               HON'BLE MR. JUSTICE SATYEN VAIDYA





                CIVIL WRIT PETITION No.2918 of 2022
         Between:-
         VIJAY KUMAR SON OF SH.




         RAMESH     KUMAR,   ADDRESS
         VILL.-DRALKA, PO WANGAL, SUB
         TEHSIL BHALAI KAMANDI, DISTT.
         CHAMBA, H.P. AGED ABOUT 28
         YEARS.

                                                         ....PETITIONER

         (BY MR. YOGESH KUMAR CHANDEL,
         ADVOCATE)
         AND


    1.   STATE OF HP THROUGH ITS
         PRINCIPAL SECRETARY (TOURISM
         & CIVIL AVIATION) TO THE
         GOVERNMENT OF HP, SHIMLA-2,




         H.P.
    2.   THE DIRECTOR, TOURISM & CIVIL





         AVIATION TO STATE OF HP,
         SHIMLA-9, HP
    3.   HP      STAFF      SELECTION





         COMMISSION          HAMIRPUR,
         THROUGH ITS SECRETARY, DISTT.
         HAMIRPUR, HP.
    4.   NATIONAL COUNCIL FOR HOTEL
         MANAGEMENT AND CATERING
         TECHNOLOGY     THROUGH      ITS
         SECRETARY,      ADDRESS-A-34,
         SECTOR-62, NOIDA-201309, (UP)
                                                    ....RESPONDENTS
         (MR. ASHWANI SHARMA, ADDITIONAL
         ADVOCATE GENERAL FOR R-1 & R-2
         MR RAJINDER THAKUR, ADVOCATE FOR R-3)




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                  This petition coming on for admission this day, Hon'ble
    Ms. Justice Sabina, passed the following:
                                 ORDER

Petitioner has filed the petition under Article 226 of the

Constitution of India, seeking following reliefs:-

"i). That the writ in the nature of certiorari may kindly be issued to quash and set aside the oral rejection of the petitioner candidature for Inspector (Hotels) post,

advertised under post code-824. The result notification dated 12.04.22 i.e. Annexure P-7 may also be quashed and set aside.

ii) That the writ in the nature of mandamus may kindly be

issued to the respondent Commission to treat the petitioner eligible for the post of Inspector (Hotels) on the strength of the petitioner qualification of B.sc. Degree

Hospitality and Hotel Administration, terms and conditions contained in the R&P Rules and advertisement be read

down to includes the qualification possessed by the petitioner.

iii) That the respondent Commission may kindly be directed to redraw the result of Inspector (Hotels) post (Post Code-

824) by treating the petitioner eligible for the post and if the petitioner succeed in his General (UR) category on the basis of his overall merit in that event respondent department be directed to offer appointment to the petitioner as Inspector (Hotels) with immediate effect. "

2. Learned counsel for the petitioner has submitted that vide

advertisement (Annexure P-1) dated 21st September, 2020, four posts

of Inspector (Hotels) on contract basis, in the department of Tourism

and Civil Aviation, along with other posts, were advertised. As per the

advertisement, petitioner was having more qualification than required

for appointment as Inspector (Hotels). Petitioner had participated in

the written screening test held on 21st February, 2021 and he was

declared successful in the said test. Vide Annexure P-6, dated 10 th

February, 2022, fourteen candidates were shortlisted, provisionally, for

further selection process and the roll number of the petitioner was

mentioned in the said list. The respondent-Commission vide impugned

order Annexure P-7 dated 12th April, 2022, had wrongly held that none

of the candidates were found eligible as per the Recruitment and

Promotion Rules of the post concerned and the candidature of all the

candidates were rejected by the Commission. Petitioner had

successfully passed degree of Bachelor of Science (Hospitality and

Hotel Administration) and certificate dated 12.8.2016, in this regard,

was Annexure P-3. As per the advertisement for the post of Inspector

(Hotels), necessary qualification was graduate from a recognized

University with Diploma in Hotel Management or Bachelor Degree in

Tourism Administration from a recognized University. Thus, petitioner

was having better qualification than the qualification required for the

post of Inspector (Hotels) vide advertisement Annexure P-1.

3. In support of the arguments, learned counsel has placed

reliance on the judgment of Hon'ble Supreme Court dated 12 th October,

2020, in Civil Appeal No.2850 of 2020, titled Anand Yadav & Others

versus State of Uttar Pradesh & Others, wherein it was held as

under:-

.

"33. We may notice that it is not as if a person with

an M.Ed. Degree is eligible for all the posts which were advertised for Science, Arts and others. Their

eligibility has been found only for the post of Assistant Professor (Education), which is directly relatable to the subject to be taught. We do not think the fact that

both M.Ed. And M.A. (Education) degree-holders have to take a common test for the purposes of NET is conclusive, but it is one of the factors to be

considered, and once the expert body being the

NCTE, inter alia, has taken that aspect into consideration apart from other factors to opine equivalence for the purpose of appointment to the

post of Assistant Professor in Education, it would not be appropriate to take a contra view."

4. In the present case, vide Annexure P-1, four posts of

Inspector (Hotels) were advertised. As per the said advertisement, the

necessary qualification for the post of Inspector (Hotels) is graduate

from a recognized University with Diploma in Hotel Management or

Bachelor Degree in Tourism Administration from a recognized

University. So far as the petitioner is concerned, he has the degree of

Bachelor of Science (Hospitality and Hotel Administration).

5. Vide Annexure P-6, roll number of the petitioner was

reflected in the list of 14 candidates, who had been shortlisted

provisionally for further selection process/evaluation on the basis of

their merit. However, vide impugned notification dated 12th April, 2022,

the Himachal Pradesh Staff Selection Commission declared the final

result for recruitment to the four posts of Inspector (Hotels) and it was

observed that after evaluation process none of the candidates were

found eligible as per the Recruitment and Promotion Rules of the post

concerned. Accordingly, candidature of all the candidates had been

rejected by the Commission.

6. to So far as the petitioner is concerned, he does not possess

Bachelor Degree in Tourism Administration from a recognized

University, but has a degree of Bachelor of Science (Hospitality and

Hotel Administration). Petitioner does not have a diploma in Hotel

Management.

7. It is settled preposition of law that when a candidate

appears in an examination without objection and is subsequently found

to be not successful, he or she cannot subsequently turn around and

contend that the process was unfair, merely because the result is not

palatable. It has been held so by Hon'ble the Supreme Court in Ashok

Kumar & Another versus State of Bihar & Others, (2017) 4,

Supreme Court Cases, 357. Relevant paragraphs of the said

judgment

"13. The law on the subject has been crystallized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, 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, this Court held that:

"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 also

Munindra Kumar v. Rajiv Govil and Rashmi Mishra v. M.P. Public Service Commission )."

14. The same view was reiterated in Amlan Jyoti

Borooah (supra) where it was held to be well settled that 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.

15. In Manish Kumar Shah v. State of Bihar, the same

principle was reiterated in the following observations :

"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 Article 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, Marripati Nagaraja v. State of A.P., Dhananjay Malik

v. State of Uttaranchal, Amlan Jyoti Borooah v. State of Assam and K.A. Nagamani v. Indian Airlines."

16. In Vijendra Kumar Verma v. Public Service Commission9 , candidates who had participated in the selection process were aware that they were required to

possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to

challenge the selection process as being without jurisdiction. This was held to be impermissible.

17. In Ramesh Chandra Shah v. Anil Joshi, candidates who were competing for the post of Physiotherapist in the

State of Uttrakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that :

"18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of

.

selection and its outcome."

18. In Chandigarh Administration v. Jasmine Kaur, it was held that a candidate who takes a calculated risk or

chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-

selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey, this Court held that :

"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. This, 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."