Madhya Pradesh High Court
Ankit Tiwari vs The Rajamata Vijaya Raje Scindia ... on 29 July, 2022
Author: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 29th OF JULY, 2022
WRIT PETITION No. 703 of 2017
Between:-
ANKIT TIWARI S/O SHRI DEVENDRA
TIWARI, OCCUPATION: UNEMPLOYED,
R/O SAIYAD GALI NEAR OF PULIYA
APAGANJ LASHKAR, GWALIOR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI S.K. SHARMA - ADVOCATE)
AND
1. THE RAJMATA VIJAYA RAJE SCINDIA
AGRICULTURE UNIVERSITY, MELA ROAD
GWALIOR DISTRICT GWALIOR (MADHYA
PRADESH) THROUGH ITS REGISTRAR
2. THE VICE CHANCELLOR, RAJMATA
VIJAYA RAJE SCINDIA AGRICULTURE
UNIVERSITY, MELA ROAD GWALIOR,
DISTRICT GWALIOR (MADHYA PRADESH)
3. SHRI SAURABH DUBEY S/O SHRI ASHOK
DUBEY, OCCUPATION: ASSISTANT GRADE
III, RAJMATA VIJAYA RAJE SCINDIA
2
AGRICULTURE UNIVERSITY, MELA
ROAD, GWALIOR, DISTRIC GWALIOR
(MADHYA PRADESH)
4. MANOJ AWASTHI, S/O SHRI DAYANAND
AWASTHI, OCCUPATION ASSISTANT
GRADE-III, RAJMATA VIJAYA RAJE
SCINDIA AGRICULTURE UNIVERSITY
MELA ROAD, GWALIOR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI VIVEK KHEDKAR- ADVOCATE FOR
RESPONDENT NO.1 AND SHRI D.S. CHAUHAN, ADVOCATE
FOR RESPONDENT NO.4)
--------------------------------------------------------------------------------
This petition coming on for admission this day, the court
passed the following:
ORDER
(1) The present petition under Article 226 of the Constitution
of India had been filed by the petitioner being aggrieved by the
illegal and discriminatory action on the part of respondent-
University, whereby the criterion of the selection process for the
post of Assistant Grade-III had been changed after the issuance of
the advertisement dated 06/05/2010 and 11/01/2012 and before
the interview was conducted.
(2) Short facts of the case are that the petitioner had applied for
the post of Assistant Grade III pursuant to an advertisement issued
by respondent-University on 20/06/2010. Since due to some
inadvertent reasons the advertisement was cancelled and again on
11/02/2012 a second advertisement for the same posts was issued
by respondent-University. In the advertisement it was mentioned
that the applications of the candidates who had applied pursuant
to earlier advertisement dated 20/06/2010, would be entertained
and they would not be required to submit fresh applications, with
a liberty that if they want to get any new information or
qualification added, they can do so by furnishing acknowledgment
of submission of previous application and deposit receipt.
(3) The petitioner appeared in the written examination and after
succeeding he was called for interview on 12/07/2016. After the
interview when the result was declared the petitioner could not
make through and was declared unsuccessful and respondents No.
3 & 4 were declared successful. The petitioner dissatisfied with
the result applied under RTI sought the information regarding the
election process, the marks obtained by the candidates etc and
when he received the documents, acquired the knowledge for the
first time that the criterion for selection was changed and such
criterion for selection was adopted which was not mentioned in
the advertisement. Thus, challenging the act of the University
prayed for setting aside the appointment of respondents No. 3 &
4.
(4) Learned counsel for the petitioner vehemently argued that
the entire selection process by the University stands vitiated as the
same was against the settled principal of law that any change in
the selection criterion or addition of a new criterion after
commencement of the selection process is not permissible and
since the criterion fixed for bifurcating the marks for assessing the
merits of the candidates for selection was not a part of the
advertisement, subsequent framing of rules in that regard was
illegal and had caused prejudice to the petitioner, thus, prayed for
setting aside the appointment of respondents 3 & 4 and prayed for
giving appointment to the petitioner. Reliance was placed on the
decision of Hon'ble Apex Court in the case of Hemani Malhotra
Vs. High Court of Delhi passed in Writ Petition (Civil)
490/2007 dated 03/04/2008.
(5) Per contra learned counsel for the University contended that
in the advertisement only requisite minimum eligibility
qualifications were prescribed and criterion for awarding marks
under different heads to the candidates were adopted since 2009
for short listing and also in clause 11 of the advertisement it was
specifically provided that if in comparison to the posts available,
the applications are more in number, then the appointing authority
would have a right to restrict them on the basis of
qualifications/experience either at the time of written exams or
interview. Thus, according to the learned counsel for respondent-
University, it reserved a right to decide the selection norms on the
basis of other qualifications/experience and no prejudice would be
or was caused to the petitioner, as the criterion was same for each
candidate and the scrutiny was done accordingly. Even otherwise
if some mechanism is evolved to choose the best available talent,
in that context if some criterion is fixed, it cannot be said to be
irrelevant. Thus, prayed for dismissal of the writ petition. He
further sought dismissal of the petition on the ground of mis-
joinder of the parties, as selected candidates were not made party
to the petition. He further placed reliance on the decisions of
Hon'ble Supreme Court in the matter of Arun Tewari Vs. Zila
Manasvi Shikshak Sangh passed in Civil Appeal No. 77/1995
dated 01/12/1997 and in the matter of K.H. Siraj Vs. High
Court of Kerela passed in Civil Appeal No.'s 2539-2540/2005
dated 23/05/2006.
(6) Heard the learned counsel for the parties at length and
perused the record.
(7) From the facts of the case the question which arises for
consideration of this Court is whether some new criterion was
introduced for selection by way of bifurcating the total marks of
100 as under:
1. Compulsory Educational Qualification: 20 marks.
(1st Class - 20 marks)
(2nd Class - 10 marks)
2. Additional Qualifications : 10 marks.
(3 to 6 months - 3 marks)
(6 to 12 months - 6 marks)
(12 & above - 10 marks)
3. Experience : 10 marks (Maximum)
4. Written Examination : 40 marks.
5. Interview : 20 marks.
And that too after the entire selection process was completed and
whether it would amount to change the rules of the game, after the
game was played?
(8) From bare reading of the advertisement dated 11/01/2012, it
would be evident that it prescribed only minimum qualification
for becoming eligible for participating. Though it does mention
that if the number of applications exceeds much more that the
number of post advertised, then the appointing authority would
have a right to restrict the applications on the basis of
qualifications/experience either at the time of written examination
or interview. Thus, the advertisement itself had reserved a right to
the University to set a criterion, which infact was already with the
University since 2009 as envisaged in Annexure P/3 (Rules &
Regulation (Instructions)) and was exercised by the University
and were issued by it in wake of written examination and
interviews for Class III and IV posts to be filled directly. No doubt
the authority making rules regulating the selection, can prescribe
by rules, the criterion for awarding minimum/maximum marks
under different categories and where the rules do not prescribe
any procedure, the Selection Committee may also prescribe a
procedure to be adopted, but this exercise is required to be done
before the commencement of selection process. Any criterion
changed or fixed after commencement of selection process would
be illegal.
(9) From the above proposition it is evident that the rules and
instructions for the direct recruitment of Class III & IV posts, the
rules & regulations (instructions) were already in existence since
2009 as informed by the learned counsel for the respondent-
University, thus, this Court is of the considered view that neither
any new criterion was fixed by the University nor the criterion
followed was incorporated in the midst of the selection process,
therefore, the contention of the learned counsel for the Petitioner
is unfounded and baseless. Vide Annexure P/3 the rules and
regulations (instructions) for the written exam as well as
interview were already in existence prior to commencement of the
selection process and were not introduced for the first time after
the selection process had commenced. It is also seen that those
rules and regulations (instructions) were never challenged by the
petitioner and with full knowledge he had participated both in the
written examination and after clearing it in the interview and only
after getting unsuccessful that he had challenged the entire
selection process, which is not permissible. Thus, the petition
fails & entails dismissed.
(10) It is trite to observe that it is a settled law that a person
having consciously participated in the interview cannot turn
around and challenge the selection process. Observing that the
result of the interview cannot be challenged by a candidate who
has participated in the interview and has taken the chance to get
selected at the said interview and ultimately, finds himself to be
unsuccessful, in Madan Lal and Others v. State of J&K and Others (1995)
3 SCC 486, it was held as under:-
"9. ..... The petitioners also appeared at the
oral interview conducted by the Members
concerned of the Commission who
interviewed the petitioners as well as the
contesting respondents concerned. Thus
the petitioners took a chance to get
themselves selected at the said oral
interview. Only because they did not find
themselves to have emerged successful as a
result of their combined performance both
at written test and oral interview, they have
filed this petition. It is now well settled that
if a candidate takes a calculated chance and
appears at the interview, then, 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 the Selection
Committee was not properly constituted.
....."
In K.H. Siraj Vs. High Court of Kerala and Others (2006) 6 SCC
395, it was held as under:-
"73. The appellant-petitioners having
participated in the interview in this
background, it is not open to the appellant-
petitioners to turn round thereafter when
they failed at the interview and contend
that the provision of a minimum mark for
the interview was not proper........".
In Union of India and Others v. S. Vinodh Kumar and
Others(2007) 8 SCC 100, it was held as under:-
"19. In Chandra Prakash Tiwari v.
Shakuntala Shukla (2002) 6 SCC 127, 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." Same principle was reiterated in
Sadananda Halo and Others v. Momtaz Ali
Sheikh and Others (2008) 4 SCC 619
wherein, it was held as under:-
"59. It is also a settled position that the
unsuccessful candidates cannot turn back
and assail the selection process. There are
of course the exceptions carved out by this
Court to this general rule. This position
was reiterated by this Court in its latest
judgment in Union of India v. S. Vinodh
Kumar (2007) 8 SCC 100 ......The Court
also referred to the judgment in Om
Prakash Shukla v. Akhilesh Kumar
Shukla 1986 Supp SCC 285, where it has
been held specifically that when a
candidate appears in the examination
without protest and subsequently is found
to be not successful in the examination, the
question of entertaining the petition
challenging such examination would not
arise........"
(11) Now reliance placed by the petitioner in the matter of
Hemani Malhotra (supra) since based on different facts is
misplaced and is not applicable to the present matter.
(12) In view of the aforesaid position of Law, I am of the
considered opinion that the present writ petition being sans merit
deserves to be dismissed and is hereby dismissed.
(Milind Ramesh Phadke)
Judge
Pawar*
ASHISH PAWAR
2022.08.02
18:13:07
+05'30'
