Madhya Pradesh High Court
Bharat Jain vs The State Of Madhya Pradesh on 29 May, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
1 WP-14433-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 29 th OF MAY, 2024
WRIT PETITION No. 14433 of 2024
BETWEEN:-
BHARAT JAIN S/O SHRI PREMCHAND JAIN, AGED
ABOUT 36 YEARS, OCCUPATION: SERVICE R/O H.NO. 58
VILLAGE BHILAI DISTRICT DAMOH (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SURENDRA VERMA - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH DEPARTMENT OF
PUBLIC HEALTH AND FAMILY WELFARE
THROUGH SECRETARY, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. DIRECTOR PUBLIC HEALTH AND FAMILY
WELFARE DEPARTMENT BHOPAL (MADHYA
PRADESH)
3. COMMISSIONER FOOD SECURITY AND
CONTROLLER AND DRUG ADMINISTRATION
IDGAH HILLS BHOPAL (MADHYA PRADESH)
4. EMPLOYEES SELECTION BOARD THROUGH
DIRECTOR CHAYAN BHAVAN MAIN ROAD NO.1
CHINAR PARK (EAST) BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI PIYUSH JAIN - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition is filed seeking the following reliefs:-
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"i. To issue a writ in the nature MANDAMUS for directing the
respondent to consider the candidature of petitioner without
taking into account his previous appointment in the same
selection process and thereby allowing him to opt for the post
which was cleared by him in a single selection process.
ii. Any other relief deems fit and proper in the fact of the
circumstance may also be ordered."
It is the case of the petitioner that the respondents have advertised post
for different cadres including Aushadhi Nirikshak (Drug Inspector) and
Aushadhi Vishleshak (Drug Analyst) vide advertisement titled as Samhu-2 and
Up-Samhu-3 Swachhata Nirikshak Chemist V Samkaksh Padon Ki Sidhi Bharti
V Backlog Bharti Hetu Sanyukt Bharti Pariksha 2022. There was a provision for
vertical and horizontal reservation in the selection process. The aspirants who
were working as contract employees, were also given Sanyukt Bharti Pariksha
Niyam - 2022. Petitioner along with others have applied for the post codes 19
and 20 pertaining to Drug Inspector and Drug Analyst respectively and claimed
reservation under the EWS and contract employee category. It is the case of the
petitioner that respondent No.4 has not asked the petitioner for
uploading/supplying of any document or its particulars about the claim of
reservation under the contract employee category. Several aspirants made a
false claim while filling the forms on the other hand uploading the relevant
certificates was a condition precedent for claiming other benefits. The petitioner
appeared in the concerned subjects namely Paper 'E' (Pharmacy-Micro
Biology) and Paper 'F' (Physics, Chemistry, Pharmacy Biology) and qualified
and secured different merit and waiting positions for post codes 19 and 20
pertaining to Drug Inspector and Drug Analyst respectively.
It is argued that even though the department for the post codes 19 and 20
are same but the respondent department has conducted separate document
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verification process and issued appointment and posting order on 14.08.2023
for the post code 20 (Drug Analyst). Only ten days time was granted for
submitting the joining in terms of condition No.16 of the appointment order.
The petitioner submitted his joining on the post of Drug Analyst on 24.08.2023.
It is the case of the petitioner that the respondent No.4 has never asked for
supplying of any document or its particulars in relation to the claims of
reservation under the contract employee category. He has also moved an
application under the Right to Information Act to the respondent No.4 but it
was informed that the demand and verification of documents is to be done by
the department. It is his case that after a lapse of nine months the respondent
department arrived at the conclusion that the claim of those candidates who
have not submitted the documents for verification was found to be false.
Therefore, the candidates from the waiting list were called for document
verification. The petitioner was also called for the document verification for the
post of Drug inspector (post code - 19). The petitioner has informed the
authorities that he has already joined on the post of Drug Analyst. He has orally
informed at the time of document verification that the benefit of contract
employee reservation cannot be granted to him as he has already joined on the
post of Assistant Drug Analyst. Therefore, he is not entitled for grant of benefit
for reservation. It is the case of the petitioner that once both the examinations
were jointly conducted by the authorities, the petitioner is not at fault for being
called late by the respondents for document verification for the post of Drug
Inspector. Therefore, this petition is being filed.
Counsel appearing for the respondents have vehemently opposed the
contentions and submitted that once the petitioner has chosen to be appointed
on the post of a Drug Analyst in pursuance to the appointment order dated
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14.08.2023, the petitioner cannot make a claim to the post of a Drug Inspector.
The petitioner has accepted the aforesaid post with wide open eyes without any
protest and it cannot be said that he was not aware of the conditions mentioned
in the advertisement regarding reservation to the contract employees. The said
condition was mentioned in the advertisement itself. The petitioner has chosen
to join on the post of Drug Analyst without any protest and without even
querying from the respondents regarding the declaration of the result with
respect to the post of Drug Inspector. He was in the waiting list in the final
result for the post of Drug Inspector. However, some of the wait list candidates
have not come forward for document verification. The case of the petitioner
was not considered by the respondents owing to the fact that he has already
joined on the post of the Drug Analyst without any protest. Under these
circumstances, no relief can be extended to the petitioner. He has prayed for
dismissal of the writ petition.
Heard the learned counsels for the parties and perused the record.
The undisputed facts in the writ petition are that the advertisement was
issued for several posts including the post of the Drug Analyst and the Drug
Inspector simultaneously having the post codes no.19 (Drug Inspector) and 20
(Drug Analyst). The petitioner applied for both the posts. After declaration of
the result, he was declared successful and finds place in the merit list, as far as
post of the Drug Analyst was concerned. Accordingly, he was issued an
appointment order Annexure P/6. In pursuance to the same, he has joined the
respondent department on the post of Drug Analyst without any protest. He
accepted the post without raising any grievances against non-declaration of the
result as far as post of Drug Inspector is concerned. His name finds place in the
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waiting list in the final list of the Drug Inspector. A wait list candidate is having
no right to ask for appointment in question. However, the respondents have
taken up the waiting list candidates owing to the fact that certain candidates in
the list of the Drug Inspector have not turned up for document verification. The
petitioner was also called for document verification but owing to the fact that as
he has already joined on the post of the Drug Analyst without any protest, his
case could not be considered and he was not found eligible to hold the post of
Drug Inspector.
The law with respect to the right of a waiting list candidate is settled by
Hon'ble Supreme Court in the cases of Shankarsan Dash Vs. Union of India
reported in (1991) 3 SCC 47, Batiarani Gramiya Bank Vs. Pallab Kumar and
others reported in (2004) 9 SCC 100, Kulwinder Pal Singh and another Vs.
State of Punjab and others reported in (2016) 6 SCC 532, State of Manipur and
another Vs. Takhelmayum Khelendro Meitei and others reported in (2019) 3
SCC 331, Dinesh Kumar Kashyap and others Vs. South East Central Railway
and others reported in (2019) 12 SCC 798 and the order passed by the Division
Bench of this Court in the case of Sunil Kumar Mishra Vs. The State of M.P.
and others (Writ Appeal No.1020 of 2021, decided on 09.11.2021). The
Hon'ble Supreme Court in the case of Shankarsan Dash Vs. Union of India
(supra) way back in the year 1991 has held that there is no indefeasible right of
appointment merely because a candidate found place in the waiting list. It was
further observed that ordinarily the notification merely amounts to an invitation
to qualified candidates to apply for recruitment. The State is under no legal duty
to fill up all or any of the vacancies.
It is a settled preposition of law that once a candidate without raising any
protest has joined the post in question he cannot claim his right over the other
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post merely on the basis that he was a wait list candidate in the other list for
some other post. The Hon'ble Supreme Court in the case of Anupal Singh and
others vs. State of Uttar Pradesh, reported in (2020) 2 SCC 173 has held as
under:-
"55. Having participated in the interview, the private respondents
cannot challenge the Office Memorandum dated 12.10.2014 and the
selection. On behalf of the appellants, it was contended that after the
revised notification dated 12.10.2014, the private respondents
participated in the interview without protest and only after the result
was announced and finding that they were not selected, the private
respondents chose to challenge the revised notification dated
12.10.2014 and the private respondents are estopped from
challenging the selection process. It is a settled law that a person
having consciously participated in the interview cannot turn around
and challenge the selection process.
56. 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."
57. In K.H. Siraj v. 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."
58. In Union of India and Others v. S. Vinodh Kumar and Others
(2007) 8 SCC 100, it was held as under:-
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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."
59. 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 : (2007) 2 SCC
(L&S) 792].... 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."
Document (Annexure P/6) dated 14.08.2023 is an appointment order of
the post of the Drug Analyst wherein the name of the petitioner finds place at
serial no.16. The petitioner has already submitted his joining in pursuance to the
order of appointment. The petitioner has never raised any grievance with
respect for consideration of his case or the reservation of contractual
employees as far as the post of Drug Inspector is concerned. After a lapse of
considerable period, petitioner is making a claim for consideration of the post
of Drug Inspector which is not permissible. Under these circumstances, no
relief can be extended to the petitioner.
Petition sans merit and is accordingly dismissed. No order as to costs.
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(VISHAL MISHRA)
JUDGE
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