Jammu & Kashmir High Court
Mulkh Raj vs State And Ors on 28 December, 2021
THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SWP No. 1136/2018
IA No. 01/2018
Pronounced on: 28th.12.2021
Mulkh Raj .... Petitioner(s)
Through:- Mr. Pawan Kundal, Advocate
V/s
State and ors. .....Respondent(s)
Through:- Mr. H.A. Siddiqui, Sr. AAG
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. The SKIMS Medical College, Bemina, Srinagar invited applications
from eligible candidates for filing up of the various posts in SKIMS
Medical College Hospital Bemina, Srinagar under the Jammu and Kashmir
Special Recruitment Rules vide advertisement notice No. 4 SKIMS-
MC/Adm/2017/3116-25 dated 12.07.2017 and amongst the Posts
advertised, eight Posts of Jr. Assistant/ Data Entry Operator were also
advertised.
02. The petitioner being eligible, applied for the post of Jr.
Assistant/Data Entry Operator under the Scheduled Caste category
pursuant to the aforesaid advertisement notice. As per the advertisement
notice, 08 posts for Jr. Assistant/Data Entry Operator were advertised, 01
post under RBA category, 03 under SC category, 03 under ST category and
01 post under ALC category. The qualification prescribed for these posts
was graduation from a recognized University/Institute having knowledge of
type writing not less than 35 words per minute speed and a six months
certificate course in computer application from a recognized institute.
03. The petitioner being eligible applied for the said post and was
allocated Roll No. 17481. He appeared in the written test conducted for the
Post of Jr. Assistant/Data Entry Operator on 02.05.2018 in the premises of
the SKIMS Medical College and Hospital, Bemina, Srinagar.
04. The respondents, however, issued a list of short listed candidates to
be called for interview for the Post of Jr. Assistant/Data Entry Operator
vide notification dated 01.06.2018. The grievance of the petitioner is that
though he has performed very well in the Written Examination and out of
80 questions given in question paper he has given 62 correct answers,
therefore, he was meritorious, he should be awarded 62 marks and he
should also have been shortlisted and called for the interview.
05. According to petitioner, the respondents have arbitrarily and without
any application of mind called the candidates for the interview and
shortlisted the candidates without disclosing the cut-off merit of the
candidates, thus, denied him an opportunity for participation in the
interview by applying a procedure which is unreasonable and unjustified
and also is in violation of Articles 14 & 16 of the Constitution of India.
06. The impugned notification, as per the petitioner, is bad and is, thus,
required to be set aside. The petitioner, therefore, seeks a direction for
quashing the notification No. SKIMS-MC/Adm/2018/2912-22 dated
28.05.2018 by which 59 candidates have been called after short listing for
interview without disclosing the cut-off merit. Further direction is,
however, sought by him to declare the result of the petitioner who has
participated in the Written Test vide roll No. 17481 by directing the
respondents to consider the petitioner for the Post of Jr. Assistant/Data
Entry Operator notified vide notification No. SKIMS-MC/Adm/2018/2912-
22 dated 28.05.2018 and consequently recommend his name for the
appointment.
07. The respondent No. 2-Principal SKIMS Medical College and
Hospital, Bemina, Srinagar has submitted that since the petitioner failed to
make the grade in the written test, therefore, he could not find a place in the
short listing of the candidates, who were called for the interview. It is also
submitted that a written test of Multiple Choice Questions (MCQs) for the
Post of Jr. Assistant/Data Entry Operator was conducted at SKIMS Medical
College, Bemina, Srinagar on 02.05.2018 at 02:00 PM by the committee
constituted for this purpose vide Order no. 206 SKIMS-MC of 2018 dated
26.04.2018. After the conduct of written test the list of those candidates
were drawn, who had secured 40% marks in case of candidates from Open
Merit and 35% in Reserved Category candidates in the Written Test as per
the decision of the Selection Committee of SKIMS - MC, Bemina held on
06.10.2017. Accordingly, a notification was issued vide Notice No.
SKIMS/MC/Adm/2018/2912-22 in which 59 candidates were called for the
type/speed test on 01.06.202018 at Govt. Polytechnic for Women, Bemina
for the above referred posts. The requisite test was conducted under the
supervision of the committee constituted by the SKIMS MC. 40 Points
were allotted to the type/speed test, 20 points were earmarked for typing
and 20 points to speed on pro-rata basis. On the basis of the points/marks
distribution, the merit was accordingly drawn for the post and interview
was conducted of shortlisted candidates by the Non-Gazetted Selection
Committee of SKIMS MC with the help of one subject expert nominated
by the competent authority (Principal, SKIMC MC) on 21.06.2018 at 11:30
AM in the Office Chambers, of the Principal SKIMS MC vide notice
issued under endorsement No. SKIMS/MC/Adm/2018/2196-3203 dated
13.06.2018. The interview of the eligible candidates who had qualified the
written examination and type/speed test conducted by SKIMS MC strictly
as per the norms.
08. The respondents submit that out of 80 Multiple Choice Questions
(MCQs), the petitioner had marked only 20 questions right, 53 questions
wrong and 07 questions were cancelled by the competent authority, thus,
the petitioner had secured 25% marks only in the written examination and,
failed to obtain the merit, therefore, could not be shortlisted for the
type/speed test.
09. The selection Committee in order to appoint meritorious candidates
decided to shortlist for the type/speed test and only those candidates who
had secured 40% marks in Open Merit and 35% marks in Reserved
Category, thus the petitioner having failed to make the grade and could not
be selected.
10. The petitioner having participated in the Selection Process cannot
turn around and challenge the same once he fails to make the grade.
11. In Dr. (Major) Meeta Sahai vs State of Bihar and ors. (2019) 20
SCC 17 the Hon'ble Supreme Court has held as under:
".....Normally, reiterated, a candidate cannot challenge
selection process after participating in process. However, held,
said principle is differentiated insofar as candidate by agreeing
to participate in selection process only accepts prescribed
procedure and not illegality in it. Hence, where candidate
alleges misconstruction of statutory rules and discriminating
consequences arising therefrom, same cannot be condoned
merely because candidate has partaken in it because
constitutional scheme is sacrosanct and its violation
impermissible. Besides, it is possible that candidate may not
have locus to assail incurable illegality or derogation of
provision of Constitution, unless he/she participates in
selection process."
12. Similarly, in Madras Institute of Development Studies and anr.
Vs Dr. K. Sivasubramaniyan and ors.(2013) 11 SCC 309 (2016) 1
SCC 454 wherein it has been held as under:
"....It is a well settled position of law that a person could not
challenge the selection process once he has appeared in it and
participated in it."
13. In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576,
the Hon'ble Supreme Court reiterated the said principle:
"....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 test, the
petitioner is not entitled to challenge the criteria or process of
selection.
14. Thus, the petitioner having participated in the selection process and
failed to make a grade for the short listing cannot turn around and
challenge the same, more so, when he has not made any effort to
implead the selected candidates as party respondents and challenge their
selection.
15. In view of the aforesaid, there is no merit in this petition and the
same is accordingly dismissed along with connected application(s).
(Sindhu Sharma)
Judge
JAMMU
28.12.2021
MICHAL
Whether the judgment is speaking : Yes
Whether the judgment is reportable : Yes
