Madhya Pradesh High Court
Pratha Rajak vs Doctor Harisingh Gour ... on 1 April, 2021
Author: Prakash Shrivastava
W.P. No.3479/2021
-1-
HIGH COURT OF MADHYA PRADESH, PRINCIPAL
SEAT AT JABALPUR
Case No. W.P. No.3479-2021
Parties Name
Pratha Rajak
vs.
Dr. Harisingh Gour Vishwavidyalaya
& others
Date of Order 01/04/2021
Bench Constituted Division Bench:
Justice Prakash Shrivastava
Smt. Justice Anjuli Palo
Order passed by Justice Prakash Shrivastava
Whether approved for Yes
reporting
Name of counsels for parties For petitioner: Shri Amit Mishra,
Advocate.
For respondents: Smt. Shobha
Menon, learned senior counsel with
Shri Rahul Choubey, Advocate.
Law laid down ➢ If a candidate takes a
calculated chance and appears in the
selection process then being
unsuccessful, he cannot challenge the
process.
➢ After participating in selection
process without any objection and
when the process is over, a candidate
is estopped from challenging the
brochure condition and condition of
admission relating to sports quota.
Significant paragraph 12,13,14 & 15
numbers
ORDER
(01.04.2021)
Per : Prakash Shrivastava, J.
By this petition, the petitioner has prayed for a direction to the
respondents to grant her admission in B.A. L.L.B. Course for
W.P. No.3479/2021
academic session 2020-2021 under the sports quota.
2. The facts in nutshell are that petitioner had applied for
admission in B.A. L.L.B. Course on the basis of the admission
brochure of the respondent No.1-University and had participated in the
entrance test conducted All India basis on 17.10.2020. The petitioner
is an OBC candidate and her name was not included in the meritlist,
therefore, she has approached this Court.
3. The respondents have filed the reply stating that the petitioner
had obtained marks less than the cut off marks for the OBC category
and the petitioner is also not entitled to the benefit of relaxation under
the sports quota, therefore, she has been deprived the admission.
4. Learned counsel appearing for the petitioner submits that in
terms of the unamended Ordinance, the petitioner fulfills the requisite
condition for relaxation of marks under the sports quota, therefore, she
has wrongly been denied the said benefit. He further submits that the
amended Ordinance has not been notified, therefore, the same has no
impact.
5. Learned counsel for the respondents has opposed the petition by
submitting that the petitioner has no right to challenge the condition of
the admission brochure because after participating in the selection
process and having failed, she cannot agitate the issue now. She
further submits that the selected candidates under the OBC category
have not been impleaded and that the Ordinance has duly been
amended and in terms thereof, the petitioner is not entitled to the
relaxation in the sports quota.
6. Having heard learned counsel for the parties and on perusal of
the record, it is noticed that the petitioner has obtained 120 marks in
the entrance test whereas the cut off mark for OBC (NCL) category is
126. Since the petitioner has obtained marks less than the cut off
marks, therefore, she has not been granted admission.
7. The petitioner is claiming benefit of relaxation in the cut off
marks under the sports quota. In the Prospectus and Admission
Brochure 2020-21, following was the condition for eligibility
W.P. No.3479/2021
prescribed under the sports quota:-
"The following conditions should be fulfilled for the eligibility for seats under
sports quota:-
(i) The candidates should fulfill the minimum eligibility criteria for
admission to the programme.
(ii) The candidate should have appeared in the Entrance Test of the concerned
programme and cleared the cut off marks, if any, for qualifying in the
Entrance Test.
(iii) The candidate must fulfill the participation rules/norms of Association of
Indian Universities (AIU).
(iv) The candidate should have played National (senior/junior/sub-
junior/youth school/Games Federation of India) at least up to qualifying
examination or should have secured a position in Zonal/Inter-Zonal/Direct
All India up to 4th position Inter-University Tournament of AIU games or
have participated at these levels.
The merit of the qualified candidates for the admission under Sports Quota shall
be decided by the Sports achievement marks awarded on the basis of certificates
of achievements. Highest Sports achievement marks/performance of a candidate
will only be considered while counting the sports achievement marks.
Sport Achievement Marks in various categories are as follows:
A-National B-All India/Inter-Zonal C-Zonal Inter-
(Senior/Junior/Youth) Inter-University organized University organized
by AIU by AIU
Position Tea Individual Position Tea Individual Position Tea Indivi
m m m dual
1st 30 35 1st 30 35 1st 15 20
Position Position Position
2nd 25 30 2nd 25 30 2nd 10 15
Position Position Position
3rd 20 25 3rd 20 25 3rd 08 10
Position Position Position
Participa 08 08 4th 15 15 4th 05 08
tion Position Position
Vizzy 10 - Particip 03 04
Trophy ation
Particip 08 08
ation
In case of equal sports achievement points of candidates in a School, the inter-se
(between or among themselves) ranking will be decided on the basis of the marks
obtained in the Entrance Test. And, if the marks obtained by candidates in the
Entrance Test is also equal; then the aggregate percentage of marks in the
qualifying examination will be considered. If these are also equal, then the
candidate senior in age will be preferred.
Note- Sports Quota candidates/sportspersons must submit the hard copy of the
online submitted from along with self-attested copies of relevant certificates latest
by 22 May 2020 on the address: Admission Cell, Doctor Harisingh Gour
W.P. No.3479/2021
Vishwavidyalaya, Sagar, 470003, Madhya Pradesh, India by Hand/Speed Post."
8. The petitioner had represented the State in Throw Ball
competition and admittedly the petitioner does not fulfill the above
condition prescribed in the admission brochure.
9. The petitioner is placing reliance upon the unamended
Ordinance No.44 Clause 3.1 of which reads as under:
"3.1 Outstanding Players
(b) A specified number of seats in both the under-graduate and
post-graduate Courses, may be earmarked by the Academic
Council for admission of outstanding players and sports
persons, who have represented their Universities/Region/State,
provided that they fulfill the minimum eligibility requirements
prescribed for seeking admission to various Courses.
(c) Relaxation to the extent of 5% of marks in the aggregate or in
the subject, as the case may be, will be given to such
candidates.
(d) Such students will be nominated by the Vice-Chancellor over
and above the seats allotted to each Course, on the
recommendation of the Games and Sports Committee."
10. The stand of the respondents is that the Executive Council in its
22nd meeting dated 24.01.2018 had approved the amendment in
Ordinance 44 and had resolved to submit the amended Ordinance to
MHRD for the perusal of Hon'ble Visitor and vide communication
dated 02.02.2018, the Additional Secretary was conveyed to lay the
amended Ordinance 44 for perusal to Hon'ble Visitor and the
condition mentioned in the admission brochure was in consonance
with the amended Ordinance.
11. Counsel for the petitioner has raised an issue that the
amendment has not been notified, therefore, the amended Ordinance
cannot be looked into but such an issue need not be gone into at this
stage because the petitioner has participated in the entrance
examination with open eyes on the basis of the eligibility condition
which was disclosed in the admission brochure 2020-21. The result
was declared on 04.11.2020, the Online counseling was held from
03.12.2020 to 09.12.2020 and thereafter Offline counseling was held
W.P. No.3479/2021
from 07.01.2021 and under sports quota on 13.01.2021. Further
special counseling was held on 12.02.2021 and finally the cut off mark
for OBC (NCL) category was 126 whereas the petitioner has secured
only 120 marks which was below the cut off marks.
12. The present petition has been filed on 10.02.2021 when the
selection process was almost over. Hence, at this stage, the petitioner
is estopped from challenging the brochure condition and condition of
admission relating to sports quota. The petitioner was aware the
condition mentioned in brochure since beginning and she has
participated in the process without raising objection, hence when the
process is over, the petitioner is estopped from questioning the same.
13. It is the settled position in law that if a candidate takes a
calculated chance and appears in the selection process then being
unsuccessful, he cannot challenge the process. The candidate having
opportunity to raise objection to a condition or procedure adopted does
not object to it though within knowledge and participate in the
selection process cannot turn back after the completion of the process
and question it as he is estopped from questioning it on the principle
of estoppel. Supreme Court in the matter of Om Prakash Shukla Vs.
Akhilesh Kumar Shukla and others reported in 1986 (Supp) SCC
285 has held 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."
14. Supreme Court in the matter of Vijendra Kumar Verma Vs.
Public Service Commission, Uttarkhand and others reported in 2011
(1) SCC 150 considering this issue has held that:
"24. When the list of successful candidates in the written
examination was published in such notification itself, it was also
made clear that the knowledge of the candidates with regard to
basic knowledge of computer operation would be tested at the
W.P. No.3479/2021
time of interview for which knowledge of Microsoft Operating
System and Microsoft Office Operation would be essential. In the
call letter also which was sent to the appellant at the time of
calling him for interview, the aforesaid criteria was reiterated and
spelt out. Therefore, no minimum benchmark or a new procedure
was ever introduced during the midstream of the selection process.
All the candidates knew the requirements of the selection process
and were also fully aware that they must possess the basic
knowledge of computer operation meaning thereby Microsoft
Operating System and Microsoft Office Operation. Knowing the
said criteria, the appellant also appeared in the interview, faced the
questions from the expert of computer application and has taken a
chance and opportunity therein without any protest at any stage
and now cannot turn back to state that the aforesaid procedure
adopted was wrong and without jurisdiction.
25. In this connection, we may refer to the decision of the
Supreme Court in G. Sarana (Dr.) Vs. University of Lucknow
wherein also a similar stand was taken by a candidate and in that
context the Supreme Court had declared that the candidate who
participated in the selection process cannot challenge the validity
of the said selection process after appearing in the said selection
process and taking opportunity of being selected. Para 15 inter alia
reads thus: (SCC p.591)
"15.... 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."
26. In P.S. Gopinathan Vs. State of Kerala, this Court relying on
the above principle held thus (SCC p. 84,para 44);
"44. .....Apart from the fact that the appellant accepted his
posting orders without any demur in that capacity, his
subsequent order of appointment dated 15-7-1992 issued by the
Governor had not been challenged by the appellant. Once he
chose to join the mainstream on the basis of option given to
him, he cannot turn back and challenge the conditions. He
could have opted not to join at all but he did not do so. Now it
does not lie in his mouth to clamour regarding the cut-off date
or for that matter any other condition. The High Court,
therefore, in our opinion, rightly held that the appellant is
estopped and precluded from questioning the said order dated
14-1-1992. The application of principles of estoppel, waiver
and acquiescence has been considered by us in many cases, one
of them being G. Sarana (Dr.) v. University of Lucknow......."
27. In Union of India and Others vs. S. Vinodh Kumar in SCC
para 18 it was held that (SCC p.107)
"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."
W.P. No.3479/2021
28. Besides, in K.H. Siraj vs. High Court of Kerala in SCC
paras 72 and 74 it was held that candidates who participated in
the interview with knowledge that for selection they had to
secure prescribed minimum marks on being unsuccessful in
interview could not turn around and challenge that the said
provision of minimum marks was improper, said challenge is
liable to be dismissed on the ground of estoppel."
15. In a recent judgment in the matter of Ramjit Singh Kardam
and others Vs. Sanjeev Kumar and others reported in 2020 SCC
OnLine SC 448, the Supreme Court has reiterated the position by
taking note of the earlier judgment on the issue as under:
"37. The preposition that a candidate, who participates in a
selection without a demur taking a calculated chance to get
selected cannot turn around and challenge the criteria of selection
and the constitution of the selection committee is well settled. The
appellants have placed reliance on judgment of this Court in
Madan Lal Vs. State of J&K, (1995) 3 SCC 486; K.A. Nagamani
Vs. Indian Airlines, (2009) 5 SCC 515; Manish Kumar Shahi Vs.
State of Bihar , (2010) 12 SCC 576; Madras Institute of
Development Studies Vs. K. Sivasubramaniyan and Others,
(2016) 1 SCC 454 and Ashok Kumar and Another Vs. State of
Bihar, (2017) 4 SCC 357."
16. The record further reveals that admissions have already been
granted to the students under the sports quota on the basis of the
eligibility condition which was prescribed in the admission brochure.
That process is complete, the classes have started. Learned counsel
for the respondents has pointed out that the classes are continuing
since 05.01.2021 and 1st semester examinations are approaching. If
at this stage any interference is made and the petitioner is granted
relaxation, then one of the OBC candidates, who has already been
admitted, will be displaced, therefore, without joining such selected
candidate, the petitioner is not entitled for any relief. Hence, at this
stage, no case is made out to interfere in the present matter. The
petition is accordingly dismissed.
(PRAKASH SHRIVASTAVA) (SMT. ANJULI PALO)
JUDGE JUDGE
Biswal
SHIBA NARAYAN BISWAL
2021.04.06 16:26:13 +05'30'
