Jharkhand High Court
Alok Banerjee vs The State Of Jharkhand Through ... on 7 May, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.360 of 2021
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1. Alok Banerjee, aged about 40 years, son of Jitendra
Nath Banerjee, resident of Village Gadi Tundi, P.O
Tundi, P.S. Tundi, District Dhanbad.
2. Sarfuddin Ansari, aged about 37 years, son of Md.
Chando Miyan, resident of Village Phuljori, P.O.
Gadisirsia, P.S. Gandey, District Giridih.
3. Suman Kumar Mahto, aged about 38 years, son of
Bhajhari Mahto, resident of Village Mahubani, P.O.
Ambona, P.S. Govindpur, District Dhanbad.
4. Girdhari Mahato, aged about 39 years, son of Bhalu
Mahato, resident of Village Madhuban, P.O. Sabanpur,
P.S. Narayanpur, District Jamtara.
5. Hari Prasad Mahato, aged about 41 years, son of Lakhi
Ram Mahato, resident of Village Irkia, P.O. Dewalbari
Nayadih, P.S. Narayanpur, District Jamtara.
6. Md. Jahanwaj Khan, aged about 41 years, son of Md.
Shid Khan, resident of Village Jaridih, P.O. Dhamni,
P.S. Madhupur, District Deoghar.
7. Tulsi Ram Mahto, aged about 42 years, son of Govind
Mahto, resident of Village Santhaldih, P.O. Hariharpur,
P.S. Hariharpur, District Dhanbad.
8. Mahesh Prasad Mandal, aged about 45 years, son of
Rameshwar Prasad Mandal, resident of Village
Maheshpur, P.O. Mohanpur, P.S. Karmatar, District
Jamtara.
9. Jaynandan Prasad Verma, aged about 46 years, son of
Bhairo Mahto, resident of Village Barki Suriya, P.O.
Suriya, P.S. Suriya, District Giridih.
10. Brajesh Kumar Singh, aged about 39 years, son of
Hriday Narayan Singh, resident of Village Sapaha, P.O.
Kukraha, P.S. Chitra, District Deoghar.
11. Manoj Kumar Mondal, aged about 39 years, son of
Bharat Chandra Mondal, resident of Village & P.O.
Bansbutia, P.S. Palojori, District Deoghar
12. Basudeo Mahto, aged about 45 years, son of Alam
Mahto, resident of Village Taranga, P.O. Taranga, P.S.
Chandrapura, District Bokaro.
13. Prakash Kumar Mahato, aged about 41 years, son of
Guna Ram Mahato, resident of Village Arita Tola
Bahadurpur, P.O Arita, PS Chandankiyari, District
Bokaro ... ... Appellants/Petitioners
L.P.A. No.360 of 2021
Page 1
Versus
1. The State of Jharkhand through Principal Secretary,
Human Resources Department, Government of
Jharkhand, having its office at Project Building, Dhurwa,
P.O. Dhurwa, P.S. Dhurwa, District Ranchi.
2. The Director of Primary Education, Human Resources
Development, Government of Jharkhand having its office
at Project Building, Dhurwa, P.O. Dhurwa, P.S. Dhurwa,
District Ranchi.
3. District Superintendent of Education, Ramgarh, P.O.
Ramgarh, P.S. Ramgarh, District Ramgarh.
4. Sohan Pandit, aged about 32 years, father's name not
known, resident of Village Kasiyadih, P.O. Kapilo, P.S.
Sariya, District Giridih.
5. Santosh Kumar Mahto, aged about 36 years, son of Ram
Lal Mahto, resident of Village & P.O. Laiyo, P.S. Mandu,
District Ramgarh.
6. Santosh Kumar Yadav, aged about 35 years, son of
Munsih Yadav, resident of Village Budhidih, P.O. Barhi,
P.S. Barhi, District Hazaribagh.
7. Deepak Kumar Agarwal, aged about 41 years, son of
Kailash Prasad, resident of Village Singhpur, P.O.
Shikharji, P.S. Pirtanr (Madhuban), District Giridih.
8. Baleshwar Yadav, aged about 39 years, son of Deglal
Yadav, resident of At & P.O. Guthiya Pesra, P.S. Sariya,
District Giridih.
9. Janardan Prasad Yadav, aged about 36 years, son of
Mathura Prasad Yadav, resident of Village Upraili Po
Pradhandih Munna, P.O. & P.S. Dhansar, District
Giridih.
10. Dinesh Kumar Mahto, aged about 34 years, son of Laljee
Mahto, resident of Village Kunda, P.O. Tirla, P.S.
Mahuatanr, District Bokaro.
11. Chandradeo Pandit, aged about 41 years, son of Nakul
Pandit, resident of Village Dudhania, P.O. Hartedin.....,
P.S. Khukhra, District Giridih.
12. Union of India through Secretary, Ministry of Education,
Department of Human Resources Development having its
office at Central Secretariat, New Delhi, P.O., P.S. New
Delhi. ... ... Interveners/Respondents
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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L.P.A. No.360 of 2021
Page 2
For the Appellant : Mr. Arpan Mishra, Advocate
For the State : Mr. Mrinal Kanti Roy, G.A.-I
For the UOI : Ms. Leena Mukherjee, CGC
For the Respondents : Mr. Rupesh Kumar Singh, Advocate
[Resp. Nos.4, 5, 7, 8, 9, 10]
For the Resp. No.11 : Mr. Raj Nandan Chatterjee, Advocate
[Resp. No.11]
--------
C.A.V. on 18.04.2024 Pronounced on 07/05/2024
Per Sujit Narayan Prasad, J.
Prayer
1. The instant appeal preferred under Clause 10 of the
Letters Patent is directed against the order/judgment dated
28.09.2021 passed by learned Single Judge of this Court in
W.P.(S) No.5968 of 2019 whereby and whereunder the writ
petition has been dismissed by not interfering with the
appointment of the private respondents.
Facts of the case
2. The brief facts of the case, as per the pleadings
made in the writ proceeding, which are required to be
enumerated, reads hereunder as :-
It is the case of the petitioners that an
advertisement was published for the appointment on the
post of Assistant Teachers in different districts of the State
of Jharkhand. As per the advertisement it has been stated
that 50% of the seats are required to be filled by Para
teachers and the rest 50 % were to be filled with Non Para
Teachers categories.
Page 3
3. The petitioners who were working as para teachers
in different schools different district of Jharkhand and
applied for selection on the vacant post under Non-Para
category.
4. It is the further case of the petitioners that this
Court vide its judgment dated 23rd July, 2018 in LPA No.
172 of 2018 has allowed one Letters Patent Appeal and
issued directions to consider the application of candidates
of para Teachers who had applied under non-para teacher
category in which they applied for the aforesaid vacancies.
5. In furtherance to the above order, a merit list for all
districts was published and objection was invited.
Thereafter, final merit list was to be published on
30.05.2019.
6. Subsequently, the respondents published an AAM
SUCHNA clarifying their stand that the counselling will not
be limited to the appellants of the LPA but they will also
consider all applicants as per their merit list.
7. Thereafter, the respondents issued a letter dated
17.05.2019 whereby and where under the candidature of
those candidates who have obtained higher educational
degree while working on regular basis i.e, class room
courses while working as a para teacher was directed to be
rejected from the counselling process.
Page 4
8. The further case of the petitioners is that pursuant
to the AAM SUCHNA a final merit list for counselling was
prepared by the respondents on 30.05.2019 and on the
basis of said list counselling for the post teachers of Inter
Trained, where held on 03.06.2019.
9. Pursuant to the counselling, candidature of certain
persons were rejected by the respondent authorities on
various grounds, such as, they had obtained Inter Degrees,
on (regular basis) while being posted as Para Teachers and
several others reasons.
10. After completion of the counselling process and the
scrutiny, final list for appointment in the post of Inter
Trained Teachers was published by the respondent
authorities and appointment letters were issued in favour of
the petitioners in terms of which they were appointed in the
Non- Para category, in the Grade Pay of Rs.4200 and were
deputed in Various schools in the District of Ramgarh.
11. On the basis of appointment letters, the petitioners
gave their joining in the designated schools within the time
frame as stipulated by the respondent authorities and since
then they were working to the satisfaction of all concerned.
12. The petitioners worked for three months after the
appointment and the service book has also been opened by
the respondent authorities in terms of Rule 288 of the
Jharkhand Service Code.
Page 5
13. On 15.10.2019, an order was issued whereby and
whereunder the appointments in the Inter Trained Teachers
Class- I-V, has been cancelled by the respondent
authorities on the ground of anticipation of an order by the
High Court so as to keep the seats vacant for appointment
if such occasion arises.
14. Now appointment letters have been issued in favour
of those candidates whose candidature was earlier rejected
(Annexure-5), due to various anomalies in their
candidature.
15. Being aggrieved by the order dated 15.10.2019 and
issuance of appointment letters to those candidates whose
candidature has earlier been rejected, the petitioners filed
writ petition before this Court being W.P.(S) No.5968 of
2019.
16. The learned Single Judge, after hearing learned
counsel for the parties, dismissed the writ petition by not
interfering with the appointment of the private respondents,
which is the subject matter of the instant appeal.
17. It is evident from the factual aspect as referred
hereinabove that the several posts were created in different
schools so as to fill up the post on the basis of Primary
School Teachers Appointment Rules, 2012 which has been
notified by notification 1632 dated 05.09.2012.
Page 6
18. The advertisement was floated for appointment of
Inter Trained teachers for Class I to V. The appointment
process was started in several districts. Merit list was
prepared as also the objections were invited till 22.05.2019.
The final merit list was to be published on 30th May, 2019.
19. The petitioners claim that they were having
requisite qualifications, applied for appointment for the
post of Inter Trained Teachers. After completion of
counselling process and scrutiny, final list was prepared for
appointment to the post of Inter Trained Teachers.
Subsequently, the appointment letters were issued in
favour of these petitioners and they were appointed in non
para category and also deputed in different schools in the
district of Ramgarh.
20. The petitioners have also given their joining in
respective designated schools and started working to the
satisfaction of the respondents.
21. But after the lapse of three months from the date of
their appointment when their service books have already
been opened, the respondents have issued an order on
15.10.2019 cancelling the appointment of the petitioners.
The writ petitioners had challenged the order of
cancellation of their appointment on the ground that they
have been appointed following the due procedure of law. As
also no misrepresentation had been made on their behalf.
Page 7
22. The further ground was taken that the violation of
principle of natural justice is also there.
23. The respondents had appeared before the learned
writ court and taken the ground that the petitioners since
have been found to have obtained lesser marks then the
last selected candidate, cannot be allowed to continue on
the post.
24. The intervener had also appeared whose
appointments have been said to suffer from impropriety on
whose behalf the ground was taken that the petitioners
have obtained lesser marks than the last selected
candidate.
25. The learned Single Judge after appreciating the
aforesaid argument as also by taking into consideration the
issue of violation of principle of natural justice, wherein it
has come that the notices were issued to the petitioners
with a direction to further objection and pleadings but no
stand was taken on the behalf of the petitioners, hence, the
writ petition has been dismissed against which the present
appeal.
Argument advanced on behalf of the appellants
26. Mr. Arpan Mishra, learned counsel appearing on
behalf of the appellants-petitioners, has taken the following
grounds:
Page 8
(i) It is a case where the candidature of the
Intervenors/private respondents had earlier
been rejected. But subsequently, their
candidature has been accepted based upon the
marks allotted in their favour, they have been
selected.
(ii) So far as the issue of securing lesser marks in
comparison to that of the appointees are
concerned, when the candidature of
intervenors has itself been rejected then
irrespective of the marks obtained their
candidature cannot be allowed to prevail upon
the candidature of the petitioners. But this
aspect of the matter has not been taken into
consideration by the learned Single judge in
right perspective.
(iii) There is violation of principle of natural
justice, since, before cancelling the
appointment, no show cause notice has been
issued.
(iv) The learned counsel appearing for the writ
petitioners-appellants has submitted that the
impugned order, as such, suffers from
infirmity and hence not sustainable in the eyes
of law.
Page 9
Argument advanced on behalf of respondent-State
27. The State has taken the following grounds:
(i) That the selection is purely based upon the
consideration on merit.
(ii) It has been contended that the marks of the
petitioners have been found to be lesser in
comparison to that of the successful
candidates, the private respondents herein,
hence, if on that ground the petitioners have
not been appointed, it cannot be said that the
selection process suffers from an error.
(iii) So far as the contention that the candidature
of the private respondents has been rejected
on the ground that they were not found to be
regular candidates in the intermediate class is
concerned, there is no pleading to that effect.
(iv) Further, consciously the private respondents
have not been impleaded as party making a
specific prayer by challenging order of
appointment, rather, the successful
candidates, who have subsequently been
appointed, had shown their appearance before
the learned writ court by filing an intervention
application. The learned State Counsel based
upon the aforesaid ground has submitted that
Page 10
the order passed by the learned Single Judge,
therefore, suffers from no error.
Argument advanced on behalf of private respondents.
28. The following grounds have been taken by the
learned counsel appearing on behalf of the private
respondents-
(i) It has been contended that the candidature of
these private respondents although had been
rejected on earlier occasion but they had made
a representation and based upon the order
passed by the Director in this regard, their
candidate has again been considered since
they have secured higher marks in comparison
to that of the petitioners. Hence, the private
respondents have been found to be more
meritorious and therefore, they have been
appointed.
(ii) So far as the issue of rejection of their
candidature is concerned, the same had never
been questioned by the petitioners by making
specific prayer before the writ court.
(iii) The issue of natural justice has also been
discarded by the learned Single Judge, taking
into consideration the plea taken by the State
that notices have been to these writ petitioners
Page 11
however, no stand was taken on behalf of the
petitioner which shows that they were aware of
the fact that they have been wrongly
appointed.
(iv) The learned counsel based upon the aforesaid
ground has submitted that in such
circumstances, the learned Single Judge has
dismissed the writ petition, the same cannot
be said to be suffer from an error.
Analysis:
29. We have heard the learned counsel for the parties,
gone across the findings by learned Single Judge in the
impugned order.
30. This Court before entering into the legality and
propriety of the impugned order, deems it proper to refer
some undisputed fact in this case.
31. The petitioners vis-à-vis the interveners who
subsequently have been impleaded as party respondent to
the writ petition had participated in the process of selection
of appointment as para teacher after creating of the post,
in pursuance to the Primary School Teachers Appointment
Rules, 2012. They have been subjected to the selection
process. The interveners/private respondents have secured
higher marks in comparison to that of the petitioners.
However, at that juncture the candidature of the private
Page 12
respondents has been rejected as per Annexure-3 dated
17.05.2019. The concerned private respondents have made
representation before the Director stating inter alia therein
that their candidature is not worth to be rejected, since,
whatever detail they have furnished, the same is in
pursuance to the Rule as appended to the counter-affidavit.
The Rule-12 which is relevant for the purpose is being
quoted hereunder as:-
"12. नियम में उल्लिल्लित अिुदेशक ों की नियुल्लि हे तु न्यूितम 10 य ग्यताएँ निम्नवत्
हग
ों ी-
क. शारीररक नशक्षा एवों स्वास्थ्य अिुदेशक
(i.) नकसी मान्यता प्राप्त ब र्ड से इन्टर परीक्षा उत्तीर्ड।
(ii.) नकसी मान्यता प्राप्त ब र्ड या नवश्वनवद्यालय से शारीररक नशक्षा में
सनटड निकेट/नर्प्ल मा/नर्ग्री ।
ि. लनलत कला एवों सोंगीत अिुदेशक
(i.) नकसी मान्यता प्राप्त ब र्ड से इन्टर परीक्षा उत्तीर्ड ।
(ii.) नकसी मान्यता प्राप्त ब र्ड या नवश्वनवद्यालय से लनलत कला एवों सोंगीत
में नियनमत क सड में स्नातक नर्ग्री/ सोंगीत में स्नातक/नर्प्ल मा या
समकक्ष य ग्यता:
ग. कायाड िुभव अिुदेशक
(i.) नकसी मान्यता प्राप्त ब र्ड से इन्टर परीक्षा उत्तीर्ड।
(ii.) NCVT, CTVT या झारिण्ड सरकार द्वारा मान्यता प्राप्त सोंस्थाि से
न्यूितम एक वर्ड का सनटड निकेट, नर्प्ल मा।"
32. It is evident from the directions issued by the
competent authority whereby and whereunder the private
respondents have been given due permission to upgrade
their educational qualification and to that effect the
relevant documents have been annexed. The private
respondents had obtained intermediate passed certificate
Page 13
and based upon that they have participated in the process
of selection.
33. The private respondents have made representation
against the decision of the authority by which their
candidature has been rejected as also preferred writ
petition being W.P.(S) No.5175 of 2019.
34. But, during the pendency of the writ petition, their
candidature has been accepted and they have also been
allowed to participate in the process of selection in which
they have performed well in comparison to that of
petitioners, since, they have obtained higher marks in
comparison to that of the petitioners.
35. A merit list was prepared and based upon the
performance of one or the other candidates, the private
respondents have been found to be more meritorious in
comparison to that of the petitioners and accordingly offer
of appointment had been issued in their favour.
36. The petitioners, having not been found to be under
the selected candidates, had preferred Writ Petition being
W.P.(S) No.5968 of 2019, praying inter alia therein that
they be appointed. However, the writ petition has been
dismissed by taking into consideration the fact that the
private respondents have been found to be more
meritorious in comparison to that of the petitioners which
is the subject matter of the present appeal.
Page 14
37. This Court before proceeding further, needs to refer
herein the jurisdiction of High Court in exercise of power
conferred under Article 226 of the Constitution of India in
the matter of process of selection which is already settled
whereby and whereunder, as per the ratio laid down by
Hon'ble Apex Court if there is any infirmity in the process
of selection then certainly, such decision of the authorities
will be subject to judicial review. But, if there is no error in
the decision, the same is not amenable to judicial review by
the High Court in exercise of the power conferred under
Article 226 of the Constitution of India. Reference in this
regard is made to the judgment rendered by Hon'ble Apex
Court in the case of Syed TA Naqshbandi and Ors. vs.
State of J&K and Ors., [(2003) 9SCC 592], wherein the
Hon'ble Supreme Court has observed as under: ―
"Judicial review is permissible only to the extent of
finding whether the process in reaching the decision
has been observed correctly and not the decision
itself, as such. Critical or independent analysis or
appraisal of the materials by the Courts exercising
powers of judicial review unlike the case of an
appellate court, would neither be permissible nor
conducive to the interests of either the officers
concerned or the system and institutions......"
38. Further reference in this regard be made to the
judgment rendered by Hon'ble Apex Court in Tata Cellular
v. Union of India, [(1994) 6 SCC 651], wherein the
Hon'ble Court at paragraphs 72-75 and 77 held as under:-
Page 15
"72. Lord Scarman in Nottinghamshire County
Council v. Secretary of State for the Environment
[1986 AC 240, 251 : (1986) 1 All ER 199] proclaimed:
" 'Judicial review' is a great weapon in the
hands of the judges; but the judges must
observe the constitutional limits set by our
parliamentary system upon the exercise of this
beneficial power."
Commenting upon this Michael Supperstone
and James Goudie in their work Judicial Review
(1992 Edn.) at p. 16 say:
"If anyone were prompted to dismiss this sage
warning as a mere obiter dictum from the most
radical member of the higher judiciary of recent
times, and therefore to be treated as an
idiosyncratic aberration, it has received the
endorsement of the Law Lords generally. The
words of Lord Scarman were echoed by Lord
Bridge of Harwich, speaking on behalf of the
Board when reversing an interventionist
decision of the New Zealand Court of Appeal in
Butcher v. Petrocorp Exploration Ltd. 18-3-
1991."
73. Observance of judicial restraint is currently the
mood in England. The judicial power of review is
exercised to rein in any unbridled executive
functioning. The restraint has two contemporary
manifestations. One is the ambit of judicial
intervention; the other covers the scope of the court's
ability to quash an administrative decision on its
merits. These restraints bear the hallmarks of judicial
control over administrative action.
74. Judicial review is concerned with reviewing
not the merits of the decision in support of which
the application for judicial review is made, but
the decision-making process itself.
Page 16
75. In Chief Constable of the North Wales Police v.
Evans [(1982) 3 All ER 141, 154] Lord Brightman
said:
"Judicial review, as the words imply, is not an
appeal from a decision, but a review of the
manner in which the decision was made.
***
Judicial review is concerned, not with the
decision, but with the decision-making process.
Unless that restriction on the power of the
court is observed, the court will in my view,
under the guise of preventing the abuse of
power, be itself guilty of usurping power."
.... ... ... ...
77. The duty of the court is to confine itself to
the question of legality. Its concern should be:
1.Whether a decision-making authority
exceeded its powers?
2.Committed an error of law,
3.committed a breach of the rules of natural
justice,
4.reached a decision which no reasonable
tribunal would have reached or,
5.abused its powers.
Therefore, it is not for the court to
determine whether a particular policy or
particular decision taken in the fulfilment of that
policy is fair. It is only concerned with the
manner in which those decisions have been taken.
The extent of the duty to act fairly will vary from case
to case. Shortly put, the grounds upon which an
administrative action is subject to control by judicial
review can be classified as under:-
(i) Illegality : This means the decision-maker
must understand correctly the law that
regulates his decision-making power and must
give effect to it.
(ii) Irrationality, namely, Wednesbury
unreasonableness.
(iii) Procedural impropriety.
Page 17
The above are only the broad grounds
but it does not rule out addition of further
grounds in course of time. As a matter of fact,
in R. v. Secretary of State for the Home
Department, ex Brind [(1991) 1 AC 696], Lord
Diplock refers specifically to one development,
namely, the possible recognition of the
principle of proportionality. In all these cases
the test to be adopted is that the court should,
"consider whether something has gone wrong of
a nature and degree which requires its
intervention". (emphasis supplied)
39. Similar principle has been laid down in the cases of
H.S. Sidhu v. Devendra Bapna & Ors, [(2016) 1 SCC
495] and U.V. Mahadkar v. Subhash Anand Chavan &
Ors [(2016) 1 SCC 536].
40. The reason for referring the aforesaid judgments is
that the main ground taken by the petitioners that there is
error in the decision making process.
41. Admittedly herein, the candidature of the private
respondents on earlier occasions had been rejected on the
ground that they did not get the intermediate certificate as
a regular candidate. But when they have represented based
upon the due permission granted by the competent
authority to get the intermediate pass certificate as has
been appended in the counter-affidavit filed on behalf of the
private respondents as also the writ petition had been filed
before this Court, then the authorities have taken a
decision by accepting the candidature of the private
Page 18
respondents. They have been allowed to participate in the
process of selection along with the petitioners, in which, the
private respondents have been found to have secured more
marks in comparison to that of the petitioners.
42. It also needs to refer herein that the petitioners at
the time when such decision was taken by the authority
concerned accepting their candidature and allowing the
private respondents to participate in the process of
selection, they have not questioned such decision of the
authority, rather, even at the time of the filing of the writ
petition such decision had not been questioned save and
except the prayer for their appointment.
43. Law in this regard is settled that once the process of
selection begins and the concerned candidates had
participated, they cannot be allowed to question the
decision taken by the competent authority. Reference in
this regard be made to the judgment rendered by Hon'ble
Apex Court in the case of Dr. G. Sarana Vs. University of
Lucknow and Others (Supra), [(1976) 3 SCC 585] at
paragraph 15, which reads as under:-
"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
Page 19
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 clear 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."
44. Further, the Hon'ble Apex Court in the judgment
rendered in Om Prakash Shukla Vs. Akhilesh Kumar
Shukla and Others [(1986) Suppl. SCC 285] has
observed at pargraph 24, which reads as under :-
"24. 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."
45. Likewise, in Marripati Nagaraja and Others Vs.
Government of Andhra Pradesh and Others [(2007) 11
Page 20
SCC 522] the Hon'ble Apex Court has held at paragraph 19
as under :-
"19. .... ... ... Appellants had appeared at the
examination without any demur. They did not
question the validity of the said question of fixing of
the said date before the appropriate authority. They
are, therefore, estopped and precluded from
questioning the selection process."
46. Here, in the given facts of the case, the petitioners
ought to have questioned the acceptance of the candidature
at the inception or even before this Court but as would
appear from the pleading made in the writ petition as also
the prayer, that their candidature had not been cancelled,
since, the private respondents have not been impleaded as
party. That is the reason the private respondents had
entered their appearance by filing intervention application.
However, the same was allowed, their impleadment as
respondent nos. 4 to 10.
47. Thus, the fact suggests and clarifies that there is no
challenge of the acceptance of candidature by the
petitioners even before this Court by filing the writ petition
and in that aspect of the matter when the candidature of
the private respondents have been accepted based upon the
decision taken by the authority by which it was pointed out
that the private respondents have been allowed to upgrade
their educational qualification and in that view of the
matter if they have been allowed to participate in the
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process of selection in which they have secured higher
marks in comparison to that of the petitioners then is it
available for the petitioners now to question their non-
selection and the selection of the private respondents.
48. The answer to this question is in negative due to the
reason that once the candidature of the private
respondents have been accepted, having not been
questioned by the petitioners before any authority or any
forum or any appropriate court of law and thereafter, if the
private respondents have participated in the process of
selection and on comparative assessment of the merit of all
the candidates, if the private respondents have been found
to be finally selected and engaged, the petitioners cannot be
allowed to question the same without challenging the same
at the appropriate stage after appointment having been
made.
49. Coming back to the factual aspect herein the said
aspect of the matter has been admitted by the petitioners
that the private respondents have secured higher marks in
comparison to that of the petitioners. Before this Court,
now the ground has been taken that when their
candidature had been rejected, then irrespective of the
marks secured by the private respondents, the petitioners,
who are to be considered as genuine candidates, are having
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right of appointment over and above the private
respondents.
50. But such contention is not acceptable to this Court,
for the reason that, once the candidature of the private
respondents have been accepted, having not been
questioned by the petitioners before any authority or any
forum or any appropriate court of law and thereafter, if the
private respondents have participated in the process of
selection and on comparative assessment of the merit of all
the candidates, if the private respondents have been found
to be finally selected and engaged, the petitioners cannot be
allowed to question the same without challenging the same
at the appropriate stage after appointment having been
made.
51. The second ground has been taken of violation of
principles of natural justice on the ground that the
petitioners have been appointed and in course thereof their
appointments have been cancelled. But as would appear
from the counter-affidavit when specific stand had been
taken before the learned writ court that the notices had
been issued to the petitioners and they also replied. But
there is no denial of the fact that private respondents have
not secured higher marks.
52. The learned Single Judge has taken note of the
aforesaid facts and has not accepted the ground of violation
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of principles of natural justice by taking into consideration
the stand of the State taken in the counter-affidavit that
the notice was issued before cancellation of the
appointment.
Conclusion
53. This Court, after having discussed the factual
aspect along with the legal proposition as above and
coming back to the impugned order, is of the view that the
learned Single Judge has taken into consideration both the
issues, i.e., the position of the petitioner vis a vis the
private respondents as also the issue of principle of natural
justice, as discussed hereinabove, therefore, this Court is of
the considered view that the order impugned needs no
interference.
54. Accordingly, the instant appeal stands dismissed.
55. Pending Interlocutory application, if any, also
stands disposed of.
I agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Birendra/ A.F.R.
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